L. R. A. 
 AS AUTHORITIES 
 
 INCLUDING THE CITATIONS OF EACH CASE AS A PRECEDENT: (1) 
 BY ANY COURT OF LAST RESORT IN ANY JURISDICTION OF 
 THIS COUNTRY; (2) BY THE EXTENSIVE AND THOROUGH 
 ANNOTATIONS OF THE LAWYERS REPORTS ANNO- 
 TATED, THE AMERICAN STATE REPORTS, THE 
 ENGLISH RULING CASES, THE BRITISH 
 RULING CASES, AND THE UNITED 
 STATES SUPREME COURT 
 REPORTS [LAW. ED.]. 
 
 1-70 L. R. A. 
 
 IN SIX VOLUMES. 
 VOLUME I. 
 
 KOCHESTEB, N. T. 
 
 THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY. 
 
 1913 
 
Entered according to Act of Congress, in the Year nineteen hundred five, by 
 
 THE LAWYERS CO-OPERATIVE PUBLISHING CO., 
 In the Office of the Librarian of Congress, at Washington, D. C. 
 
 Copyright nineteen hundred thirteen, by 
 THE LAWYERS CO-OPERATIVE PUBLISHING CO. 
 
 E. R. ANDREWS PRINTING COMPANY, Rochester. N. Y. 
 
PREFACE. 
 
 The legal profession has been rapidly learning in recent years the 
 exceptional value that is added to an important case by tracing it 
 through the later decisions that have been founded upon it or have 
 treated it as a precedent. Rose's Notes on the United States Su- 
 preme Court Reports, The Notes on the California Reports, the 
 Texas Reports, the Minnesota Reports, the Dakota Reports, the 
 Ohio Reports, and various others, have been gradually revealing the 
 fact to lawyers and judges that it is often extraordinarily useful to 
 be able to trace an important precedent through the later cases that 
 have followed it. 
 
 Every instance in which an L.R.A. precedent was followed, dis- 
 tinguished, and strengthened, or, on the other hand, limited, or in 
 any other way referred to, is shown herein for every case in 1-70 
 L.R.A. Since the first edition of this work was published in 1905 
 for Volumes 150, a great number of later decisions have followed 
 these precedents, so that there is now a total of about 110,000 de- 
 cisions contained herein in which these L.R.A. decisions have been 
 cited. The history of each of these L.R.A. cases is traced through 
 all these later decisions, and in that process there is furnished at 
 the same time, a condensed digest of all the holdings of these 110,000 
 cases on the points to which the L.R.A. precedents are cited. 
 
 Another feature of very great value shows where each of these 
 L.R.A. cases has been cited in any of the exhaustive annotations of 
 the Lawyers Reports Annotated, the American State Reports, the 
 English Ruling Cases, the British Ruling Cases, or the United States 
 Supreme Court Reports [Law. Ed.]. The footnote references to 
 any of these cases in the reports of later decisions are also noted, as 
 well as the affirmance or reversal of any case by the Supreme Court 
 of the United States. 
 
 In short, this work gives in a compact form the entire history 
 of each L.R.A. case as shown by all the later cases that have cited 
 it, and also the substance of all this mass of later decisions on that 
 point, while the references to the later annotations which have cited 
 any case lead directly to exhaustive discussions and analyses of the 
 law upon the questions involved. 
 
 The arrangement of the L.R.A. cases herein is in the order of 
 the volume and page of the reports, so that the materials for any 
 case can be instantly found. 
 
 Rochester, K Y., 1913. 
 
L. R A. GASES AS AUTHORITIES. 
 
 OASES IN 1 L. R A. 
 
 1 L. R. A. 33, NALLE v. PAGGI (Tex.) 9 S. W. 205. 
 Party walls. 
 
 Cited in Nalle v. Paggi, 81 Tex. 203, 13 L. R. A. 51, 16 S. W. 932, on second 
 appeal, holding sale of lot a use of party wall within agreement to pay for when 
 used. 
 
 Cited in footnotes to Everett v. Edwards, 5 L. R. A. 110, which holds one 
 owner of party wall may increase its height against wishes of other; Harber v. 
 Evans, 10 L. R. A. 41, which holds one may, without alleging intended use, en- 
 join co-owner from making openings in party wall; Mott v. Oppenheimer, 17 
 L. R. A. 409, which holds land subject to party-wall agreement may be sold to 
 enforce payment of owner's share; Burr v. Lamaster, 9 L. R. A. 637, which holds 
 agreement to pay for one half of party wall an encumbrance on land; Graves v. 
 Smith, 5 L. R. A. 298, which holds one owner of party wall has no right to insert 
 windows in raised part, impairing value of other's easement. 
 
 Cited in notes (7 L. R. A. 649) on party wall denned; (7 L. R. A. 650) on 
 easement created by agreement for party wall; (66 L.R.A. 681, 685) on enforce- 
 ment of obligation to contribute to cost of party walls, by or against grantees 
 or successors in title. 
 Party wall and other covenants running with land. 
 
 Cited in footnotes to Mott v. Oppenheimer, 17 L. R. A. 409, which holds party- 
 wall agreement runs with land when expressly declared to; Lincoln v. Burrage, 
 52 L. R. A. 110, which holds promise to pay for party wall when used, to grantor 
 who previously sold adjoining lot, does not bind subsequent purchaser of both 
 lots; Doty v. Chattanooga Union R. Co. 48 L. R. A. 160, which holds agreement 
 to operate daily trains as consideration for right of way runs with land; Huyck 
 v. Andrews, 3 L. R. A. 791, which holds covenant against encumbrances broken 
 at time of conveyance by outstanding easement. 
 
 1 L. R. A. 35, SATTERFIELD v. MALONE, 35 Fed. 445. 
 Answer In equity as evidence for defendant. 
 
 Followed in McGorray v. O'Connor, 79 Fed. 863, requiring responsive allega- 
 tions of answer to be taken as true. 
 Notice to purchaser. 
 
 Cited in Hopkins v. O'Brien, 57 Fla. 457, 49 So. 936, holding burden is on 
 party who neglected to record his prior title to show that the subsequent pur- 
 chaser has acted in fraud of his rights by purchasing with notice of his prior 
 unrecorded conveyance. 
 
 Cited in note (1 L. R. A. 192) as to constructive notice of facts stated in 
 deed. 
 
 L.R.A. Au. Vol. I. 1. 
 
 
] L.K.A. 51] L. R. A. CASES AS AUTHORITIES. 4 
 
 viction under statute regulating sale of lard and substitutes; State v. Snow, 
 11 L. R. A. 355, which upheld statute regulating sale of lard; Frost v. Chicago, 
 49 L. R. A. 657, which held invalid municipal ordinance forbidding use of 
 colored netting to cover baskets of fruit; Singer v. Maryland, 8 L. R. A. 551, 
 which upheld statute requiring plumbers to procure certificates; Com. v. Roberts, 
 
 16 L. R. A. 401, which upheld statute requiring maintenance of waterclosets in 
 buildings; Western U. Teleg. Co. v. New York, 3 L. R. A. 449, which upheld 
 statute compelling placing of electric wires underground; State v. Layton, 62 
 L. R. A. 170, sustaining statute prohibiting manufacture and sale of alum baking 
 powder; Arbuckle v. Blackburn, 65 L.R.A. 864, which upholds statute prohibiting 
 the coloring, coating, or polishing of article intended for food whereby damage 
 or inferiority is concealed. 
 
 Cited in notes (8 L. R. A. 854) on private interests subservient to public 
 interests; (9 L. R. A. 70) on regulation of markets and market houses; (10 
 L.R.A. 187) on police regulation for protection against fire; (1 L.R.A.(N.S.) 187) 
 on validity of police regulations as to branding or labeling articles of commerce; 
 25 Am. St. Rep. 888, on police power of state to prevent imposition and fraud. 
 As to oleomargarine. 
 
 Cited in Plumley v. Massachusetts. 155 U. S. 477, 39 L. ed. 229, 5 Inters. Com. 
 Rep. 590, 15 Sup. Ct. Rep. 154, Affirming 156 Mass. 241, 15 L. R. A. 843, 30 N. E. 
 1127, upholding statute forbidding sale of oleomargarine in form resembling 
 butter; State v. Collins, 70 N. H. 218, 45 Atl. 1080; State v. Rogers, 95 Me. 
 99, 85 Am. St. Rep. 395, 49 Atl. 564, upholding statute requiring oleomargarine 
 to be colored some color other than yellow; Armour Packing Co. v. Snyder, 84 
 Fed. 138; State v. Collins, 67 N. H. 540, 42 Atl. 51; State ex rel. Weideman v. 
 Horgan, 55 Minn. 185, 56 N. W. 688; State v. Myers, 42 W. Va. 825, 35 L. R. A. 
 845, footnote, p. 844, 57 Am. St. Rep. 887, 26 S. E. 539, upholding statute re- 
 quiring oleomargarine to be colored pink; State v. Ball, 70 N. H. 41, 46 Atl. 50, 
 upholding a statute forbidding use of oleomargarine in boarding houses, etc., 
 without informing guests as to its nature; Re Brundage, 96 Fed. 966, holding 
 oleomargarine statute invalid so far as it applied to sale in original packages 
 brought from another state; People v. Rotter, 131 Mich. 254, 91 N. W. 167, 
 upholding statute forbidding sale of imitation yellow butter, but excepting oleo- 
 margarine not colored like butter; People v. Freeman, 242 111. 379, 90 N. E. 366, 
 
 17 A. & E. Ann. Cas. 1098; Beha v. State, 67 Neb. 35, 93 N. W. 155, 2 A. & E. 
 Ann. Cas. 846, holding statute forbidding the selling or keeping for sale "imi- 
 tation butter" colored so as to resemble butter made from pure milk, or the 
 -cream thereof, is a valid exercise of the police power. 
 
 Cited in footnote to State ex rel. Monnett v. Capital City Dairy Co. 57 L. R. A. 
 181, which upholds statute forbidding sale of oleomargarine in form resembling 
 tmtter. 
 
 Cited in notes (6 L. R. A. 634) on police power of state to prohibit sale of 
 oleomargarine; (11 L. R. A. 532) on regulation and prohibition of manufacture 
 and sale of oleomargarine in various states; (78 Am. St. Rep. 257, 258; 85 Am. 
 St. Rep. 401) on right of states to regulate manufacture and sale of oleomar- 
 garine. 
 Recovery of penalties; nature of remedy. 
 
 Cited in State v. McConnell, 70 N. H. 159, 46 Atl. 458, holding the penalty 
 involved recoverable by criminal proceedings in name of the state; State v. 
 Missouri P. R. Co. 64 Neb. 683, 90 N. W. 877, holding use of word "fine" deter- 
 mines form of remedy as criminal in "maximum freight-rate law;" Western U. 
 Teleg. Co. v. State, 86 Neb. 23, 124 N. W. 937, holding use of word "fine" deter- 
 mined form of remedy as criminal in State Railway Commission law; State 
 
5 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 58 
 
 ex rel. Howell County v. West Plains Teleph. Co. 232 Mo. 584, 135 S. W. 20, 
 holding that word "fine" in statute requiring corporations to make annual re- 
 ports is used in sense of "penalty" and action to recover it is civil, not criminal. 
 
 1 L. R. A. 56, STATE v. WIGGIN, 64 N. H. 508, 15 Atl. 128. 
 Equal protection niid privileges. 
 
 Cited in State v. Montgomery, 94 Me. 202, 80 Am. St. Rep. 386, 47 Atl. 165, 
 holding deprival of right to license a violation of equal protection clause. 
 
 Cited in note (40 L. R. A. (N. S.) 291) on discrimination against nonresidents, 
 in imposing license or occupation tax. 
 Interstate commerce. 
 
 Cited in footnote to Norfolk & W. R. Co. v. Com. 13 L. R. A. 107, which holds 
 prohibition against running freight trains on Sunday invalid as regulation of 
 commerce. 
 
 Cited in notes (14 L. R. A. 98) on peddlers and drummers as related to inter- 
 state commerce; (60 L. R. A. 692) on corporate taxation and the commerce 
 clause; (27 Am. St. Rep. 563) on state regulation of interstate commerce. 
 
 1 L. R. A. 57, DUBE v. MASCOMA MUT. F. INS. CO. 64 N. H. 527, 15 Atl. 141. 
 Assignment for creditor*; what passes. 
 
 Cited in Rowland's Appeal, 67 N. H. 578, 35 Atl. 943, and Brimblecom v. 
 O'Brien, 69 N. H. 370, 46 Atl. 187, holding all debtor's unexempt estate con- 
 veyed by assignment for creditors. 
 Insurance; conditions. 
 
 Cited in Imperial F. Ins. Co. v. Coos County, 151 U. S. 467, 38 L. ed. 237, 14 
 Sup. Ct. Rep. 379, holding policy forfeited by making alterations and repairs. 
 
 Cited in note (1 L. R. A. 704) on conditions in policy against alienation of 
 property. 
 
 1 L. R. A. 58, LEAVITT v. LOVERIN, 64 N. H. 607, 15 Atl. 414. 
 Construction of statutes. 
 
 Approved in Gray v. Cumberland County, 83 Me. 437, 22 Atl. 375, holding- 
 that the more important of two conflicting laws must prevail; Wiggin v. Man- 
 chester, 72 N. H. 584, 58 Atl. 522 (dissenting opinion), as to presumption that 
 express repeal of existing acts not intended to interfere with contracts. 
 
 Cited in State v. Gerry, 68 N. H. 503, 38 L. R. A. 232, 38 Atl. 272, and State v. 
 Jackson, 69 N. H. 523, 43 Atl. 749, holding court bound to give statute con- 
 struction consistent with the Constitution, if possible; Wiggin v. Manchester,. 
 72 N. H. 584, 58 Atl. 522; Wyatt v. State Board, 74 N. H. 590, 70 Atl. 387; 
 Canaan v. Enfield Village Fire Dist. 74 N. H. 530, 70 Atl. 250, holding a con- 
 struction that makes a statute unconstitutional in its operation is not to be 
 adopted when it is reasonably susceptible of another and constitutional construc- 
 tion. 
 Assignment for creditors; effect. 
 
 Approved in Hackett v. Leominster Nat. Bank, 68 N. H. 275, 44 Atl. 393, 
 holding void a pledge of stock to secure existing debt, made less than three 
 months before commencement of insolvency proceedings. 
 
 Distinguished in Gathercole v. Bedel, 65 N. H. 212, 18 Atl. 319, holding attach- 
 ment dissolved by proving claim under valid assignment. 
 Impairment of obligation. 
 
 Cited in footnote to Peninsular Loaa S: Color Works v. Union Oil & Paint Co. 
 42 L. R. A. 331, which holds unconstitutional a statute providing that an at- 
 tachment is dissolved by a subsequent assignment for creditors. 
 
1 L.R.A. 60] L. R. A. CASES AS AUTHORITIES. 6 
 
 1 L. R. A. 60, AMERICAN BELL TELEPH. CO v. AMERICAN CUSHMAN 
 
 TELEPH. CO. 35 Fed. 734. 
 Patents; sufficiency of evidence. 
 
 Approved in Edison Electric Light Co. v. Electric Mfg. Co. 57 Fed. 618, re- 
 quiring proof of defense of anticipation and prior use of patent to be clear, satis- 
 factory, and beyond reasonable doubt. 
 
 Cited in note (20 Eng. Rul. Gas. 184) on prior knowledge and use of in- 
 vention. 
 Infringement of patents. 
 
 Cited in American Bell Teleph. Co. v. Cuslnnan Teleph. & Service Co. 1 L. R. A. 
 800, 36 Fed. 488, holding infringement in certain cities of patent for tele- 
 phone not justified by owner's withdrawal of telephone accommodations there- 
 from. 
 
 1 L. R. A. 64, WITTERS v. SOWLES, 35 Fed. 640. 
 National banks; married women as stockholders. 
 
 Approved in Kerr v. Urie, 86 Md. 77, 38 L. R. A. 121, 63 Am. St. Rep. 493, 37 
 Atl. 789, holding valid, for purposes of liability as stockholder, transfer of na- 
 tional bank stock to married woman im state where she is competent to be stock- 
 holder, irrespective of law of state where bank is located; Witters v. Sowles, 38 
 Fed. 700, holding, on motion for new trial, married woman in Vermont compe- 
 tent to become shareholder in national bank, with its attendant liabilities. 
 
 Cited in Christopher v. Norvell, 201 U. S. 227, 50 L. ed. 736, 26 Sup. Ct. Rep. 
 502, 5 A. & E. Ann. Gas. 740, holding under statute a married woman residing 
 in Florida who has inherited stock in a national bank which has been trans- 
 ferred to her and on which she has received and accepted dividends is subject to 
 a personal judgment for an assessment of the comptroller notwithstanding that 
 under the laws of Florida a married woman cannot enter into a contract. 
 
 1 L. R. A. 65, WHELAN v. NEW YORK, L. E. & W. R. CO. 35 Fed. 849. 
 
 Trial on merits in 38 Fed. 15. 
 Repeal of statute as to removal. 
 
 Cited in Minnick v. Union Ins. Co. 40 Fed. 369, holding provisions of former 
 law as to mode of removal repealed by act of 1887; Crotts v. Southern R. Co. 90 
 Fed. 2, holding act of 1887-88 repealed by U. S. Rev. Stat. 639, permitting 
 affidavit in words of statute as to existence of prejudice. 
 
 Cited in footnote to Ames v. Hager, 1 L. R. A. 377, holding U. S. Rev. Stat. 
 629, clause 4 (U. S. Comp. Stat. 1901, p. 511), not repealed by act of 1887. 
 
 Cited in note (ll L. R. A. 572) on question whether earlier act as to removal 
 repealed. 
 Separable controversy. 
 
 Cited in Campbell v. Milliken, 119 Fed. 985, holding that nonresident defend- 
 ant joined with resident defendants cannot remove cause unless controversy 
 separable. 
 Diversity of citizenship as ground for removal. 
 
 Cited in Jackson & S. Co. v. Pearson, 60 Fed. 127; Bonner v. Meikle, 77 Fed. 
 489 ; Haire v. Rome R. Co. 57 Fed. 323 holding cause could be removed by any 
 nonresident defendant, though other defendants citizens; Detroit v. Detroit City 
 R. Co. 54 Fed. 5, holding that any nonresident defendant may remove, even in 
 equity case. 
 
 Cited in footnotes to Herndon v. JEtna. F. Ins. Co. 10 L. R. A. 54, which holds 
 that diverse citizenship at commencement of action must be shown; First Xat. 
 
7 L. R. A. CASES AS AUTHORITIES. 1 L.R.A. 65] 
 
 Bank v. Merchants Bank, 2 L. R. A. 469, which holds nonresident defendant may 
 remove for diversity of citizenship, though plaintiff is also a nonresident; Seddon 
 v. Virginia, T. & C. Steel & I. Co. 1 L. R. A. 108, which holds District of Colum- 
 bia not a state within provision for removal where controversy wholly between 
 citizens of different states. 
 
 Cited in notes (3 L. R. A. 545) on necessity that citizenship shall be diverse; 
 (11 L. R. A. 217) on corporation's right of removal for diversity of citizenship. 
 
 Distinguished in Thouron v. East Tennessee, V. & G. R. Co. 38 Fed. 676, holding 
 cause not removable unless all the necessary plaintiffs are citizens of state in 
 which action brought; Adelbert College v. Toledo, W. & W. R. Co. 47 Fed. 846, 
 holding cause not removable because some of plaintiffs were citizens of same 
 state as defendants. 
 
 Disapproved in effect in Anderson v. Bowers, 43 Fed. 321, holding cause not re- 
 movable if any defendant a citizen of state with plaintiff. 
 Time for removal. 
 
 Cited in Craven v. Turner, 82 Me. 388, 18 Atl. 864, holding time for removal 
 not expired until plea to the declaration disposed of; Huskins v. Cincinnati, 
 N. O. & T. P. R. Co. 3 L. R. A. 548, 37 Fed. 507, holding removal may be made 
 at any time before final hearing in state court, for diverse citizenship. 
 Hovr prejudice made to appear. 
 
 Cited in Carson & R. Lumber Co. v. Holtzclaw, 39 Fed. 886, holding prejudice 
 not sufficiently shown by applicant's affidavit when considered with controverting 
 affidavits: Walcott v. Watson, 46 Fed. 531, holding affidavit stating facts on 
 which affiant's belief founded, sufficient; Huskins v. Cincinnati, N. O. & T. P. R. 
 Co. 3 L. R. A. 548, 37 Fed. 507, holding existence of prejudice not jurisdictional, 
 and may be shown by petition and affidavit; Cooper v. Richmond & D. R. Co. 
 L. R. A. 367, 42 Fed. 698, and Minnick v. Union Ins. Co. 40 Fed. 370, holding 
 affidavit in positive terms of existence of prejudice, sufficient. 
 
 Cited in notes (9 L. R. A. 232) on affidavit in support of application; (11 
 L. R. A. 571) upon affidavit for removal of cause for prejudice. 
 
 Distinguished in Minnick v. Union Ins. Co. 40 Fed. 369, remanding cause 
 because affidavit of belief only not sufficient to sho%v prejudice. 
 
 Disapproved in effect in Amy v. Maiming, 38 Fed. 536, holding an affidavit that 
 defendant believes and has reason to believe that prejudice exists insufficient. 
 l'~acts traversable on removal. 
 
 Followed in Cooper v. Richmond & D. R. Co. 8 L. R. A. 367, 42 Fed. 700, hold- 
 ing grounds of affidavit not traversable. 
 
 Questioned in Detroit v. Detroit City R. Co. 54 Fed. 17, denying motion to 
 remand, no affidavit in rebuttal to that for removal being filed. 
 
 Disapproved in Ellison v. Louisville & N. R. Co. 50 C. C. A. 531, 112 Fed. 806, 
 holding facts in moving affidavit on ex parte application might subsequently be 
 traversed; Montgomery County v. Cochran, 116 Fed. 990, holding facts in ex 
 farte moving affidavit may subsequently be traversed. 
 Ex parte application for removal. 
 
 Approved in Minnick v. Union Ins. Co. 40 Fed. 369, holding notice of applica- 
 tion for removal not required. 
 
 Cited in Reeves v. Corning, 51 Fed. 778, holding that motion to remove may 
 be made without notice; Bonner v. Moikle, 77 Fed. 488. holding it better prac- 
 tice to give notice of application; Chiatovich v. Hanchett, 78 Fed. 194, holding 
 removal for diversity of citizenship may be granted on application without notice. 
 
I L.R.A. 65] L. R. A. CASES AS AUTHORITIES. 8 
 
 Amount in dispute as affecting removal. 
 
 Cited in Huskins v. Cincinnati, N. 0. & T. P. R. Co. 3 L. R. A. 549, 37 Fed. 507, 
 holding removal may be had without regard to amount in controversy. 
 
 Cited in note (9 L. R. A. 229, 232) upon the right to remove depending on 
 amount in dispute. 
 Local prejudice. 
 
 Cited in Holmes v. Southern R. Co. 125 Fed. 303, holding valid, provision for 
 removal by any defendant for local prejudice, though controversy may include 
 defendants in same state with plaintiff; Boatmen's Bank v. Fritzlen, 68 C. C. A. 
 288, 135 Fed. 665, holding same. 
 
 1 L. R. A. 75, OWENS v. BALTIMORE & O. R. CO. 35 Fed. 715. 
 Railroad relief association; release of railroad. 
 
 Cited in Eckman v. Chicago, B. & Q, R. Co. 169 111. 319, 38 L. R. A. 754, 48 
 N. E. 496; Beck v. Pennsylvania R. Co. 63 X. J. L. 239, 76 Am. St. Rep. 211, 43 
 Atl. 908; Lease v. Pennsylvania Co. 10 Ind. App. 52, 37 N. E. 423; Pittsburg, 
 C. C. & St. L. R. Co. v. Cox, 55 Ohio St. 516, 35 L. R. A. 512, 45 N. E. 641; 
 Petty v. Brunswick & W. R. Co. 109 Ga. 672, 35 S. E. 82; Otis v. Pennsylvania 
 Co. 71 Fed. 138; Shaver v. Pennsylvania Co. 71 Fed. 936 upholding agreement 
 in application for membership that acceptance of benefit from railroad relief 
 association should release railroad from all damages for injury or death ; State 
 use of Black v. Baltimore & 0. R. Co. 36 Fed. 656, upholding release by widow 
 of member of association under whose constitution claim payable only on condi- 
 tion that all persons entitled should release railroad upon acceptance of bene- 
 fit; Brown v. Baltimore & O. R. Co. 6 App. D. C. 246, holding a brakeman barred 
 from bringing action by accepting benefit, and giving release based on previous 
 agreement therefor; Johnson v. Charleston & S. R. Co. 55 S. C. 160, 44 L. R. A. 
 649, 32 S. E. 5, upholding contract that acceptance of benefits shall relieve rail- 
 road company, but leaving acceptance optional; Chicago, B. & Q. R. Co. v. Curtis, 
 51 Neb. 463, 71 N. W. 42, and Chicago, B. & Q. R. Co. v. Bell, 44 Neb. 54, 62 
 X. \V. 314, holding contract that acceptance of benefit should operate as a re- 
 lease and satisfaction valid; Chicago, B. & Q. R. Co. v. Miller, 22 C. C. A. 266, 
 40 U. S. App. 448, 76 Fed. 441, conceding the validity of such a contract; Twaits 
 v. Pennsylvania R. Co. 77 N. J. Eq. 109, 75 Atl. 1010; Colaizzi v. Pennsylvania 
 R. Co. 143 App. Div. 645, 128 N. Y. Supp. 312; Atlantic Coast Line R. Co. v. 
 Dunning, 94 C. C. 128, 166 Fed. 859, holding contract between employee and 
 railway company whereby the former in consideration of benefits to be received 
 from relief association releases claim for damages for injuries valid; Harrison 
 v Alabama Midland R. Co. 144 Ala. 255, 40 So. 394, 6 A. & E. Ann. Gas. 804, 
 holding relief association contract not ultra vires; Baltimore & 0. R. Co. v. 
 Ray, 36 Ind. App. 437, 73 N. E. 942, holding a contract required by a railroad 
 company and providing that each employee shall become a member of its relief 
 department and as such be entitled to certain relief in case of injury, but that 
 if an action in damages be brought by such employee or his personal repre- 
 sentatives for injuries received the same shall be a release of any benefits in 
 such relief fund, is not contrary to public policy; Barden v. Atlantic Coast Line 
 R. Co. 152 N. C. 332, 67 S. E. 971 (dissenting opinion), as to membership of asso- 
 ciation releasing railway company from damages; Atlantic Coast Line R. Co. 
 v. Beazley, 54 Fla. 342, 45 So. 761, holding contract not valid where statute 
 forbade contracts limiting liability. 
 
 Cited in footnotes to Pittsburg, C. C. & St. L. R. Co. v. Moore, 44 L. R. A. 638, 
 holding such agreement does not violate statute prohibiting employee from agree- 
 ing to waive right of action for injuries; Donald v. Chicago, B. & Q. R. Co. 33 
 
9 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 79 
 
 L. R. A. 492, and Oyster v. Burlington Relief Department, 59 L. R. A. 291, which 
 uphold terms in benefit certificate of railroad relief association requiring waiver 
 of action if benefits accepted. 
 
 Cited in notes (10 L.R.A. (N.S.) 199) on validity of provision of railroad relief 
 department for forfeiture of benefits in case of suit against company; (11 L.R.A. 
 (X.S.) 189) on contracts requiring servant to elect between benefits of relief 
 fund and his action for damages. 
 
 Distinguished in Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 658, 58 N. W. 
 1120, holding acceptance of benefits by beneficiary no bar to action for his death, 
 brought in behalf of his children. 
 
 Questioned in Chicago, B. & Q. R. Co. v. Hendricks, 125 111. App. 591, holding a 
 regulation of fraternal benefit society which precludes the personal representative 
 of a deceased member from benefits unless releases of claim for damages against 
 a railroad company are obtained from parties other than such personal repre- 
 sentative, who receive no consideration therefor, is unreasonable and void. 
 Interest on verdict. 
 
 Cited in Griffith v. Baltimore & O. R. Co. 44 Fed. 585, allowing interest on 
 verdict from date pf its rendition to entry of judgment, where stay granted. 
 Redaction of damage. 
 
 Cited in footnote to Lawrence v. Porter, 26 L. R. A. 167, requiring buyer on 
 credit, on breach by seller, to accept's latter's unconditional offer to sell at re- 
 duced price for cash; Chicago City R. Co. v. Saxby, 68 L.R.A. 164, which sustains 
 right of injured person to recover for tuberculosis condition of knee resulting 
 from injury, notwithstanding fact that tuberculosis was organic and mistakes in 
 treatment. 
 
 Cited in notes (59 L.R.A. 496) on measure of damages for personal injury 
 aggravated by negligence of physician or injured person; (67 L.R.A. 96) on 
 mitigation of damages for personal injury by receipt of money from some other 
 source because of injury. 
 
 1 L. R. A. 79, LINDLEY v. O'REILLY, 50 N. J. L. 636, 7 Am. St. Rep. 802, 15 
 
 Atl. 379. 
 Foreign judgment. 
 
 Cited in Overby v. Gordon, 13 App. D. C. 416, holding decree in one state 
 granting letters of administration inadmissible to devest previously acquired ju- 
 risdiction in other state; Bullock v. Bullock, 52 N. J. Eq. 565, 27 L. R. A. 215, 
 46 Am. St. Rep. 528, 30 Atl. 676, Affirming 51 N. J. Eq. 446, 27 Atl. 435, holding 
 no lien acquired on land in one state by decree in another for execution of mort- 
 gage thereon. 
 
 Ci'.ed in notes (54 L. ed. U. S. 65) on conveyance by officer of court as affecting 
 real property in another state; (5 Eng. Rul. Cas. 930) on effect of foreign judg- 
 ment. 
 Territorial limitations of courts. 
 
 Cited in Smith v. Davis, 90 Cal. 29, 25 Am. St. Rep. 92, 27 Pac. 26, holding that 
 court may appoint trustee to carry out trust in land in other state; Vreeland v. 
 Vreeland, 49 N. J. Eq. 326, 24 Atl. 551, holding that decree of court having juris- 
 diction of person may be rendered effective by compelling execution of deed for 
 land in other state; Conant v. Deep Creek & C. Valley Irrig. Co. 23 Utah, 630, 
 90 Am. St. Rep. 721, 66 Pac. 188, holding court in state where stream rises 
 without jurisdiction to determine respective rights to water of such stream in 
 other state; Vacuum Oil Co. v. Eagle Oil Co. 154 Fed. 875, holding the fact that 
 the subject-matter of a suit is situated in a foreign country will not deprive 
 
1 L.R.A. 79] L. R. A. CASES AS AUTHORITIES. 10 
 
 court of equity of the United States of jurisdiction to grant relief against fraud 
 with reference to such subject-matter by defendants who are within the court's 
 jurisdiction; Chidsey v. Brookes, 130 Ga. 221, 60 S. E. 529. 14 A. & E. Ann. Cas. 
 975, holding a devisee under a will executed and probated in another state cannot 
 maintain a suit to recover land adversely held until will has been probated in 
 this state; Taylor v. Hulett, 15 Idaho, 269, 19 L.R.A.(X.S.) 538.. 97 Pac. 37, 
 holding an action to quiet title to real estate must be prosecuted and maintained 
 in the jurisdiction in which the subject-matter is situated; Edwards v. Porter, 
 140 Ky. 315, 132 S. W. 582, holding maintainable action by landlord against 
 tenant for waste committed on land in another state; State ex rel. Barrett v. 
 District Ct. 94 Minn. 372, 102 X. W. 869, 3 A. & E. Ann. Cas. 725, as to limita- 
 tions imposed on state courts by state boundaries not affecting substance of rule 
 in regard to place of trial to cancel contract for fraud; Fall v. Fall, 75 Xeb. 129, 
 121 Am. St. Rep. 767, 113 N. W. 175, holding a decree of a court of chancery in 
 one state ordering the conveyance of land situated in another state can act only 
 upon the person within its jurisdiction and cannot affect the title to the land; 
 Rober v. Michelson, 82 Xeb. 50, 116 X. W. 949, holding legislature of a state is 
 without power to authorize its courts to quiet title to lands within boundaries 
 of a sister state; Bowler v. First Xat. Bank, 21 S. D. 460, 130 Am. St. Rep. 725, 
 113 X. W. 618, holding that state court has jurisdiction of action by trustee in 
 bankruptcy to set aside deed of bankrupt to land in another state; Wren v. 
 Rowland, 33 Tex. Civ. App. 94, 75 S. W. 894, holding the full faith and credit 
 required by the act of Congress to the proceedings of a sister state applies only 
 to those of a court having jurisdiction over the subject-matter with which it 18 
 attempting to deal. 
 
 Cited in note (69 L.R.A. 674, 681, 685, 695) on jurisdiction of equity over suits 
 affecting realty in another state or country. 
 Specific performance of contract. 
 
 Cited in Silver Camp Min. Co. v. Dickert, 31 Mont. 492, 67 L.R.A. 942, 78 Pac, 
 967, 3 A. & 'E. Ann. Cas. 1000, holding action is one in personam. 
 
 Cited in footnote to Hodges v. Kowing, 7 L. R. A. 87, which holds suit for 
 specific performance as to land not defeated by existence of remedy at law. 
 
 Cited in note (4 L. R. A. 204) as to when specific performance will be decreed. 
 Executor's power to sell. 
 
 Cited in Smalley v. Smalley, 54 X. J. Eq. 594, 35 Atl. 374, holding no implied 
 power to sell land given to executor by will; Cruikshank v. Parker, 51 X. J. Eq. 
 25, 26 Atl. 925, holding no power to sell implied from provision in will to invest 
 and reinvest the shares of certain legatees; Schroeder v. Wilcox, 39 Xeb. 150 r 
 57 X. W. 1031, holding executor authorized to sell, under provision for distribut- 
 ing proceeds of sale; Crane v. Bolles, 49 X. J. Eq. 381, 24 Atl. 237, holding fee 
 in land went to executor in trust under provisions of will; Hale v. Hale, 146 
 111. 247, 20 L. R. A. 252, 33 X. E. 858, holding that legal title to estate passed to 
 executors under will; Lawrence v. Barber, 116 Wis. 302, 93 X. W. 30, holding 
 that, where will directs sale of real estate in settlement, executor is person im- 
 pliedly intended to make sale; Chandler v. Thompson, 62 X. J. Eq. 727, 48 Atl. 
 583, holding no power of sale where none clearly conferred in will, and use of 
 words "devise" and "devisees" in codicil indicates intention that real estate shall 
 continue such; Harris v. Ingalls, 74 X. H. 342, 68 Atl. 34, holding an express 
 direction for the division of residue of an estate into four equal parts and the 
 distribution of each part among the liens of certain relatives is sufficient to in- 
 vest executors with authority to convert the realty into money for the purpose 
 of such division, when the location and character of the property and number of 
 
1] L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 86 
 
 beneficiaries render such a course necessary in order to effectuate the testator's 
 intention to give a share in severalty to each of the distributees; Ker v. Banta, 
 71 X. J. Eq. 53, 63 Atl. 550; Laraggi v. Borella, 73 N. J. Eq. 423, 67 Atl. 929, 
 holding when a testator in the disposition of his estate, imposes on an executor 
 duties to be performed which require for their performance a power of sale, the 
 executor will take, by implication, such power as will enable him to perform 
 those duties; Powell v. Wood, 149 X. C. 239, 62 S. E. 1071, holding when a power 
 is given a trustee under a will to receive, hold and invest and reinvest the estate 
 of his testator, including lands, which is consistent with the other terms of the 
 will, it confers the authority to sell the lands and make valid title thereto. 
 
 Cited in footnote to Re Higgins, 28 L. R. A. 116, which discusses the relation 
 to an estate of an executor who is also a testamentary trustee. 
 
 Cited in notes (5 L.R.A. 104) as to equitable conversion under power of sale 
 in will; (32 L.R.A.(N.S-) 692, 693) on implied power of executor or trustee to 
 sell realty; (16 Am. St. Rep. 568) on executor's power to dispose of lands. 
 
 Distinguished in Boylan v. Townley, 62 N. J. Eq. 593, 51 Atl. 116, holding 
 power to sell not implied where no duty imposed and conversion not necessary 
 part of testator's scheme. 
 Record of foreign will. 
 
 Cited in Lindley v. Keim, 54 N. J. Eq. 426, 34 Atl. 1073, raising, but not de- 
 ciding, the question as to statutory authority to record foreign wills; Sayre v. 
 Sage, 47 Colo. 565, 108 Pac. 160, holding certified copy of will with certificate 
 of probate in another state inadmissible to establish title to land in state. 
 
 Cited in notes (48 L. R. A. 133, 150) on effect of probate of will in other 
 state; (9 L.R.A. 244) on foreign letters of administration; (2 L.R.A.(N.S.) 427) 
 on conflict of laws as to wills; (113 Am. St. Rep. 212, 214) on probate of foreign 
 wills. 
 
 1 L. R. A. 86, STATE ex rel. PAUL v. CIRCUIT JUDGE, 50 N. J. L. 585, 15 
 
 Atl. 272. 
 Certiorari. 
 
 Approved in State ex rel. Enderlin State Bank v. Rose, 4 N. D. 331, 26 L. R. 
 A. 602, 58 N. W. 514, holding attachment plaintiff entitled to sue out writ where 
 property taken from sheriff. 
 
 Distinguished in Middleton v. Robbins, 53 N. J. L. 558, 22 Atl. 481, refusing 
 certiorari to owner and licensee of hotel, to review order for election to deter- 
 mine minimum license fee. 
 Intoxicating liqnors; license. 
 
 Cited in notes (10 L. R. A. 82) on prohibitory laws; (30 L. R. A. 422) on 
 limit of amount of license fees; (8 L.R.A. (KS.) 363) on discrimination as be- 
 tween different localities, in respect to right to sell liquor; (15 L.R.A.(N.S.) 945) 
 on constitutional right to prohibit sale of intoxicants; (114 Am. St. Rep. 324, 
 325) on constitutionality of local option laws. 
 Title of statute. 
 
 Approved in Com. v. Watson, 10 Lane. L. Rev. 142, 2 Pa. Dist. R. 527, uphold- 
 ing title to act regulating sale of liquors; State v. Haas, 2 N. D. 204, 50 N". W. 
 254, holding only one subject embraced in act regulating sale of liquors. 
 
 Cited in McPherson v. State, 174 Ind. 69, 31 L.R.A.(N.S.) 193, 90 N. E. 610; 
 upholding title in form, "An act to better regulate, restrict and control sale of 
 intoxicating liquors and providing for local option elections." 
 
 Cited in footnote to Milwaukee County v. Isenring, 53 L. R. A. 635, as to 
 sources from which court will determine sufficiency of title of statute. 
 
I L.R.A. 86] L. R. A. CASES AS AUTHORITIES. 12 
 
 Indictment; allegations as to place. 
 
 Cited in Buck v. State, 61 N. J. L. 529, 39 Atl. 919, requiring indictment for 
 selling liquor to aver place of sale. 
 General and special legislation. 
 
 Cited in State, Alexander, Prosecutor, v. Elizabeth, 56 N. J. L. 77, 23 L. R. 
 A. 528, 28 Atl. 51, holding statute for licensing racecourses void as special regu- 
 lation of internal affairs of towns and counties ; Hoboken v. Goodman, 68 N. J. L. 
 220, 51 Atl. 1092, sustaining ordinance prohibiting employment of bar-maids; 
 Ex parte Handler, 176 Mo. 388, 75 S. W. 920, holding principle of uniformity not 
 offended by local option liquor law; Mix v. Nez Perce County, 18 Idaho, 706, 32 
 L.R.A.(N.S.) 540, 112 Pac. 215; Gordon v. Corning, 174 Ind. 342, 92 N. E. 59; 
 Re O'Brien, 29 Mont. 538, 75 Pac. 196, 1 A. & E. Ann. Cas. 373; Baxter v. State. 
 49 Or. 357, 88 Pac. 677, holding local option law a general law. 
 
 Cited in footnotes to Milwaukee County v. Isenring, 53 L. R. A. 635, which 
 holds local, act regulating sheriff's fees in particular county; Hamilton County v 
 Rasche Bros. 19 L. R. A. 584, which holds special legislation on subject of re- 
 funding taxes not allowable. 
 
 Distinguished in Meehan v. Board of Excise, 75 N. J. L. 559, 70 Atl. 363, hold- 
 ing law regulating sale of intoxicating liquor, commonly known as "Bishops 
 Law" not unconstitutional as being special law regulating internal affairs of 
 municipalities. 
 Classification by population. 
 
 Approved in State ex rel. Warner v. Hoagland, 51 N. J. L. 67, 16 Atl. 166, hold- 
 ing classification of cities on basis of population in act abolishing offices valid; 
 State ex rel. Boorum v. Connelly, 66 N. J. L. 208, 88 Am. St. Rep. 469, 48 Atl. 955, 
 holding act changing time of elections in all cities of state valid; Hudson County 
 v. Clarke, 65 N. J. L. 278, 47 Atl. 478, holding valid classification by population, 
 in act fixing fees or salary of specified county oflicers; State, Lewis, Prosecutor, v. 
 Moore, 54 N. J. L. 123, 22 Atl. 993, holding valid classification by population 
 of municipalities in act for supplying them with water; State v. Clayton, 53 
 N. J. L. 281, 10 Atl. 1026, holding valid a classification by population of bor- 
 oughs to be created. 
 
 Cited in State ex rel. Terre Haute v. Kolsem, 130 Ind. 460, 14 L. R. A. 576, 
 29 N. E. 595, holding invalid classification of cities according to enumeration of 
 school children, in act relating to police force; State, Dexheimer, Prosecutor, v. 
 Orange, 60 N. J. L. 113, 36 Atl. 706, holding unconstitutional a classification by 
 population in act for consolidating offices in cities; Ross v. Essex County, 69 
 N. J. L. 292, 55 Atl. 310, holding legislature may divide counties on the basis 
 of their population for purpose of enabling the more populous ones to lay out 
 public parks. 
 
 Distinguished in State ex rel. Dempsey v. Newark, 53 N. J. L. 9, 10 L. R. A. 
 701, 20 Atl. 886, holding statute general in terms rendered special by second act 
 limiting its operation to one city; Wanser v. Hoos, 60 N. J. L. 529, 64 Am. St. 
 Rep. 600, 38 Atl. 449 (approved in dissenting opinion), holding act changing 
 time of elections in cities of first class void. 
 Delegation of power; submission to popular vote. 
 
 Approved in Re Cleveland, 52 N. J. L. 190, 7 L. R. A. 432, 19 Atl. 18, Affirming 
 51 N. J. L. 322, 18 Atl. 67 (distinguished in dissenting opinion), holding gen- 
 eral statute creating municipal powers not rendered special by provision for 
 submitting to acceptance by local popular vote; De Hart v. Atlantic City, 62 
 N. J. L. 587, 41 Atl. 687, holding act granting municipal powers not unlawful 
 delegation of power because of provision for adoption in particular locality; 
 
13 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 86 
 
 State ex rel. Warner v. Hoagland, 51 N. J. L. 73, 16 Atl. 166, holding statute 
 for abolishing offices in cities of specified population not rendered special by pro- 
 vision for submitting to acceptance by popular vote; Feek v. Bloomingdale, 82 
 Mich. 416, 10 L. R. A. 77, 47 N. W. 37 (criticized in dissenting opinion), holding 
 local option law not unlawful delegation of power; State, Riley, Prosecutor, v. 
 Trenton, 51 X. J. L. 500, 5 L. R. A. 353, 18 Atl. 116, holding that legislature may 
 delegate to municipal department authority to make police regulations over 
 liquor traffic; State ex rel. Witter v. Forkner, 94 Iowa, 11, 28 L. R. A. 210, 62 
 N. W. 772 (criticized in dissenting opinion), holding act suspending penalties 
 for sales of liquor on consent of local authorities not unlawful delegation of 
 power; State, Xoonan, Prosecutor, v. Hudson County, 52 N. J. L. 400, 20 Atl. 
 255, Affirming 51 N. J. L. 456, 18 Atl. 117, holding provision, in statute for 
 laying out road, for submission to popular vote not unlawful delegation of power; 
 Mathis v. Jones, 84 Ga. 807, 11 S. E. 1018, holding general an optional system 
 of fence law having uniform operation throughout the state. 
 
 Cited in Thalheimer v. Maricopa County, 11 Ariz. 435, 94 Pac. 1129; State ex 
 rel. Crothers v. Barber, 19 S. D. 11, 101 N. W. 1078; Fouts v. Wood River, 46 Or. 
 501, 1 L.R.A.(N.S.) 487, 81 Pac. 370, 7 A. & E. Ann. Gas. 1160, holding legisla- 
 ture may enact a law and make its operation depend upon the contingency of 
 the popular vote; St. Benedict's Abbey v. Marion County, 50 Or. 415, 93 Pac. 
 231, holding law is not local or special that is applicable throughout the state, 
 even though its operation in any locality is made to depend upon a local con- 
 tingency, or a particular expediency to be ascertained by a public vote in the 
 locality or by petition or adjudication of a court or other authority authorized 
 by act; Wilson ex rel. Booth v. McGuinness, 78 N. J. L. 381, 75 Atl. 455, holding 
 civil service law void in so far as it is made to take effect in municipalities on 
 its adoption by governing body thereof; State ex rel. Van Alstine v. Frear, 142 
 Wis. 356, 125 N. W. 961 (dissenting opinion), on instances of local option laws 
 sustained reluctantly and by divided courts. 
 
 Cited in footnote to Territory ex rel. McMahon v. O'Connor, 3 L. R. A. 355, 
 holding valid, provision for leaving to each county prohibition of sale of liquor. 
 
 Cited in note (1 L.R.A. (X.S.) 483) on local option law as unconstitutional 
 delegation of power. 
 
 Distinguished in State ex rel. Childs v. Copeland, 66 Minn. 320, 34 L. R. A. 780, 
 61 Am. St. Rep. 410, 69 N. W. 27, holding invalid, local option law to take effect 
 in each city on its adoption thereby; Gilhooly v. Elizabeth, 66 N. J. L. 486, 49 
 Atl. 1106, holding act empowering governor to district or redistrict city wards 
 unlawful delegation of power; Robert J. Boyd Paving & Contracting Co. v. Ward, 
 28 d. C. A. 672, 55 U. S. App. 730, 85 Fed. 32, holding void act authorizing city 
 accepting its provisions to assess cost of constructing sewers on property benefited. 
 Relegation of legislation generally. 
 
 Cited in Southern R. Co. v. Meltor, 133 Ga. 302, 65 S. E. 665 (dissenting opin- 
 ion), as to what constitutes delegation of legislative power; Smith v. Hightstown, 
 71 X. J. L. 279, 57 Atl. 901, as to validity of delegation of power to license 
 inns: Rutten v. Paterson, 73 X. J. L. 471, 64 Atl. 573, holding statute providing 
 that whenever in any city of the second class, fifty per cent or more of the 
 board of aldermen or other governing body shall petition the mayor or chief 
 executive officer of such city that a change of ward lines is necessary for the 
 proper representation of the residents of the city, it shall be the duty of the 
 chief executor to appoint three resident commissioners to resubdivide the city 
 not unconstitutional as delegating legislative power to private citizens; Wright 
 v. Cunningham, 115 Tenn. 458, 91 S. W. 293, as to difference between valid and 
 void delegation of legislative power. 
 
1 L.R.A. 86] L. R. A. CASES AS AUTHORITIES. 14 
 
 Separation of powers of government. 
 
 Cited in Union Trust Co. v. Wayne Probate Judge, 125 Mich. 494, 88 N. W. 
 1101, holding non judicial powers not conferred on probate judge by inheritance 
 tax act; Re Ridgefield Park, 54 N. J. L. 291, 23 Atl. 674, holding the denning of 
 municipal boundaries a legislative power which cannot "be delegated to the judi- 
 ciary; Schwarz v. Dover, 68 N. J. L. 580, 53 Atl. 214, holding appointment of 
 excise commissioners legislative, rather than judicial, function; Moreau v. 
 Monmouth County, 68 N. J. L. 483, 53 Atl. 208, holding invalid, act leaving to 
 justice of court to determine necessity for, and site of, additional court accommo- 
 dation; Palmyra Twp. v. Pennsylvania R. Co. 62 N. J. Eq. 611, 50 Atl. 369, hold- 
 ing legislative functions not conferred on courts by provision for their deter- 
 mining necessity of additional safeguards at grade crossings; Re Newark Plank 
 Road & Bridges, 63 N. J. Eq. 718, 53 Atl. 5, assuming duty placed on court of 
 chancery to apportion expense of bridge built over river between two counties, 
 because not assigned to any other governmental department; State ex rel. 
 Young v. Brill, 100 Minn. 520, 111 N. W. 639, 10 A. & E. Ann. Cas. 425, holding 
 act requiring judges of district court to appoint members to county board of 
 control unconstitutional; State ex rel. Patterson v. Bates, 96 Minn. 118, 113 Am. 
 St. Rep. 612, 104 N. W. 709, holding fact that a statute conferred powers or 
 imposed duties upon a judicial or executive officer which were not strictly judicial 
 or executive or which were of an ambiguous or mixed character did not render 
 it void; Eckert v. Perth Amboy & W. R. Co. 66 N. J. Eq. 440, 57 Atl. 438, holding 
 statute providing that whenever a condition arises which makes it appear to 
 the satisfaction of the chancellor after hearing a petition filed by the governing 
 body of any municipality that it is reasonable and necessary for the security of 
 human life that gates or bars should be erected or a flagman stationed at a 
 railway crossing, the court shall make an order to that effect, is not unconstitu- 
 tional as conferring legislative power upon judiciary. 
 
 Cited in footnotes to State ex rel. Godard v. Johnson, 49 L. R. A. 662, which 
 holds void an act empowering court to determine reasonableness of freight rates ; 
 Zanesville v. Zanesville Teleg. & Teleph. Co. 52 L. R. A. 150, which holds power 
 to order telephone line in highway may be conferred on court; Re Davies, 56 
 L. R. A. 855, holding nonjudicial duties not imposed by act for order to examine 
 witnesses; Norwalk Street R. Co.'s Appeal, 39 L. R. A. 794, which holds the 
 approval of the location and construction of a street railway not a judicial 
 power; Election Supers, v. Todd, 62 L. R. A. 809, holding that court cannot be 
 required to pass on petition to submit question of sale of liquor to voters. 
 County as municipal corporation. 
 
 Cited in Union Stone Co. v. Hudson County, 71 N. J. Eq. 664, 65 Atl. 466, as to 
 county being municipal corporation. 
 
 i L. R. A. 104, UNITED STATES v. MATTHEWS, 35 Fed. 890. 
 Embezzlement of decoy letters. 
 
 Cited in Goode v. United States, 159 U. S. 669, 40 L. cd. 300, 16 Sup. Ct. Rep. 
 136, holding it no defense that a letter from which money taken was a decoy 
 letter with fictitious address. 
 
 Cited in notes (25 L.R.A. 347) on instigation or consent to crime for purpose 
 of detecting criminal as defense; (58 Am. St. Rep. 603) on stealing or embezzling 
 letters. 
 
 Distinguished in Walster v. United States, 42 Fed. 896, holding letter intended 
 to be conveyed by mail subject of embezzlement although a decoy letter; United 
 States v. Wight, 38 Fed. 110, holding decoy letter addressed to fictitious person 
 and deposited in pillar box is subject of embezzlement by postal employee; Grimm 
 
15 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 111 
 
 v. United States, 156 U. S. 610, 39 L. ed. 552, 15 Sup. Ct. Rep. 470, holding 
 sending of letter giving notice where obscene pictures may be obtained a crime, 
 though sent in reply to letter from government detective writing under assumed 
 name. 
 
 Criticized in United States v. Dorsey, 40 Fed. 753, holding decoy letter subject 
 of embezzlement by postal employee when delivered to him to be carried as other 
 mail matter. 
 
 Disapproved in United States v. Bethea, 44 Fed. 802, holding decoy package 
 addressed to fictitious person put in mail with intent to intercept before des- 
 tination reached, subject of embezzlement by postal employee. 
 
 1 L. R. A. 108, SEDDON v. VIRGINIA, T. & C. STEEL & I. CO. 36 Fed. 6. 
 Grounds for removal of cause. 
 
 Cited in McClelland v. McKane, 154 Fed. 165, holding a Federal court is not 
 given jurisdiction on the ground of diversity of citizenship of a suit between a 
 citizen of a state and a citizen of a territory. 
 
 Cited in footnote to First Nat. Bank v. Merchants Bank, 2 L. R. A. 469, which 
 holds removable action between citizens of different states. 
 
 Cited in notes (11 L.R.A. 568) on removal of cause for prejudice or local 
 influence; (5 L.R.A.(N.S.) 85) on removal of cause because of separable con- 
 troversy. 
 Petition for removal of cause. 
 
 Cited in Illinois C. R. Co. v. Jones, 118 Ky. 165, 80 S. W. 484, holding all neces- 
 sary facts to show prima facie a right in petitioner for the removal must be 
 set out, not as conclusions of law, or such necessary facts must affirmatively 
 and explicitly appear elsewhere in the record when application for removal is 
 made. 
 
 Cited in footnote to Hern don v. JEtna. F. Ins. Co. 10 L. R, A. 54, as to sufficiency 
 of petition for removal. 
 
 Cited in note (1 L. R. A. 66) on petition for removal on ground of diverse 
 citizenship. 
 
 1 L. R. A. 110, NORFOLK & W. R. CO. v. IRVINE, 85 Va. 217, 7 S. E. 233. 
 
 Rt- illations as to liiiu'utiuc. 
 
 Cited in note (11 L. R. A. 761) upon regulations as to baggage for protection 
 of carrier. 
 
 1 L. R, A. Ill, BLOOMER v. TODD, 3 Wash. Terr. 599, 19 Pac. 135. 
 Female suffrage. 
 
 Cited in Gougar v. Timberlake, 148 Ind. 41, 37 L. R. A. 648, 62 Am. St. Rep. 
 487, 46 N. E. 339, holding women not entitled to suffrage under grant to all 
 "male" citizens ; Isaacs v. McNeil, 11 L. R. A. 255, 44 Fed. 33, holding election 
 officers not liable for refusing woman right to vote in reliance on decision of 
 court; Atty. Gen. v. Abbott, 121 Mich. 547, 47 L. R. A. 96, 80 N. W. 372, holding 
 woman ineligible to office, under Constitution silent as to qualifications to office 
 except such as existed under common law. 
 
 Cited in footnotes to People ex rel. Ahrens v. English, 15 L. R, A. 131, hold- 
 ing act giving women right to vote for school officers inapplicable to election 
 of school superintendent; Plummer v. Yost, 19 L. R. A. 110, holding valid, act 
 giving women right to vote for school board of district; State ex rel. Peters v. 
 Davidson. 20 L. R. A. 311, holding woman ineligible to office of notary public. 
 
 Cited in note (21 L. R. A. 663) upon right of women to vote. 
 
1 L.R.A. Ill] L. R. A. CASES AS AUTHORITIES. 16 
 
 Election laws, generally. 
 
 Cited in Solon v. State, 54 Tex. Grim. Rep. 293, 114 S. W. 349 (dissenting 
 opinion), as to right of legislature to extend or restrict the right of suffrage 
 as fixed by Constitution. 
 
 Cited in footnotes to State, Ransom, Prosecutor, v. Black, 16 L. R. A. 769, 
 holding reasonable regulations to secure secrecj' of ballot do not deprive of right 
 to vote; Detroit v. Rush, 10 L. R. A. 171, upholding election law although re- 
 striction of right to vote possible thereunder. 
 
 Cited in notes (10 L. R. A. 227) on registration of votes; (7 L. R. A. 99) on 
 rights of voters to be registered; (8 L. R. A. 337, 338) on registration and quali- 
 fications of voters; (53 L. R. A. 660) on Federal control of elections. 
 Interpretation of Statutes and Constitutions. 
 
 Cited in State v. Narragansett, 16 R. I. 434, 3 L. R. A. 296, 16 Atl. 901, holding 
 public district not within constitutional provisions as to mode of passing act 
 creating corporation; Moses v. Summersett, 58 Wash. 406, 108 Pac. 943, con- 
 struing act authorizing county aid to fairs as not authorizing aid to state fair. 
 
 1 L. R. A. 118, PINE COUNTY v. WILLARD, 39 Minn. 125, 12 Am. St. Rep. 
 
 622, 39 N. W. 71. 
 Liability of surety for defaults not occurring during term. 
 
 Cited in Milford v. Morris, 91 Iowa, 201, 51 Am. St. Rep. 338, 59 N. W. 274, 
 holding sureties on second term bond not bound by settlement at end of first 
 term, where money not produced; Dirks v. Juel, 59 Neb. 358, 80 N. W. 1045, 
 holding sureties on first term bond of court clerk liable for funds deposited to his 
 individual account, although in bank at end of term; Board of Administrators v. 
 McKowen, 48 La. Ann. 257, 55 Am. St. Rep. 275, 19 So. 328, holding sureties on 
 first term bond of public officer not liable for defalcation in second term; People 
 v. Bowman, 147 111. App. 73, holding sureties on separate bonds of public officers 
 for each term liable only for default during term for which their bond was given. 
 
 Cited in footnotes to King County v. Ferry, 19 L. R. A. 500, holding default of 
 officer after time for which elected riot covered, though term of office extended; 
 McMullen v. Winfield Bldg. & L. Asso. 56 L. R. A. 924, holding sureties liable for 
 prior defaults; First National Bank v. National Surety Co. 66 L.R.A. 777, which 
 holds last surety on bond of bank clerk serving during series of years covered by 
 defendant binds guaranteeing bank against "loss" through his acts not liable 
 for any amount because of falsifying accounts of customer so as to give him 
 fictitious credit where on appropriating deposits of customer made during his 
 term to checks during same term drafts do not exceed deposits. 
 
 Cited in notes (66 L.R.A. 777) on liability of sureties on official bonds for 
 second term for delinquencies of first term; (23 L.R.A.(N.S.) 133) on liability 
 of sureties of public officer for default during prior term. 
 Surety's liability for misapplication to prior defalcation. 
 
 Cited in American Bonding & Trust Co. v. Milwaukee Harvester Co. 91 Md. 
 743, 48 Atl. 72, holding sureties on agent's bond liable for his application of 
 moneys collected by him to prior collections made for principal; Rockford Ins. 
 Co. v. Rogers, 15 Colo. App. 27, 60 Pac. 956, holding company could not, by ap- 
 plying moneys received from agent to prior indebtedness, make sureties liable; 
 People v. Hammond, 109 Cal. 393, 42 Pac. 36, holding sureties on second term 
 bond of tax collector liable for funds collected in second term applied on prior 
 defalcations; Walker County v. Fidelity & D. Co. 47 C. C. A. 19, 107 Fed. 855, 
 holding surety for tax collector not entitled to credit for money turned in after 
 execution of bond, applied to prior collections. 
 
 Disapproved and held obiter in Merchants' Ins. Co. v. Herber, 68 Minn. 424, 
 
17 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 120 
 
 71 N. W. 624, holding surety entitled to have applied to payment of bond, money 
 paid to creditor for collection of which bond given. 
 Burden of proof as to time of principal's default. 
 
 Cited in Board of Education v. Robinson, 81 Minn. 311, 83 Am. St. Rep. 374, 
 84 N. W. 105, holding sureties on second term bond of public officer must show 
 defalcation occurred in first term. 
 Failure to inform surety of prior default. 
 
 Cited in Hallettsville v. Long, 11 Tex. Civ. App. 183, 32 S. W. 567, holding city 
 officials failure to communicate prior default of tax collector no defense; Hogue 
 v. State, 28 Ind. App. 288, 62 N. E. 656, holding re-election of treasurer of school 
 board after default no defense to sureties; Independent School Dist. v. Hubbard, 
 110 Iowa, 63, 80 Am. St. Rep. 271, 81 N. W. 241, holding public officials need 
 not disclose prior defalcation to sureties on new bond of re-elected treasurer; 
 Watertown Sav. Bank v. Mattoon, 78 Conn. 393, 62 Atl. 622, holding that failure 
 of savings bank directors to disclose to sureties of treasurer his prior defalcation 
 does not relieve sureties from liability. 
 
 Cited in footnote to Fidelity Mut. Life Asso. v. Dewey, 54 L. R. A. 945, hold- 
 ing sureties not liable where principal failed to require weekly reports by agent. 
 
 Cited in note (12 L.R.A. (N.S.) 253) on duty of obligee in fidelity bond to dis- 
 close prior defalcation. 
 Negligence of other officers as defense to sureties. 
 
 Cited in State ex rel. Bell v. United States Fidelity & G. Co. 236 Mo. 369, 139 
 S. W. 163, holding that failure of board of managers of state hospital to discover 
 prior defalcations of treasurer does not relieve his sureties from liability. 
 
 Cited in note (90 Am. St. Rep. 206) on negligence and wrong of other officers 
 as no defense to sureties on official bonds. 
 
 1 L. R. A. 120, CRAMTON v. VALIDO MARBLE CO. 60 Vt. 291, 15 Atl. 153. 
 Conflict of laws as to assignment for creditors. 
 
 Cited in Hazen v. Lyndonville Nat. Bank, 70 Vt. 554, 67 Am. St. Rep. 680, 41 
 Atl. 1046, holding assignee may enjoin fellow citizen from attaching in other 
 state stock of nonresident corporation included in assignment. 
 
 Cited in footnotes to Birdseye v. Baker, 2 L. R. A. 99, holding assignment out- 
 side of state not void because schedule required not annexed; Elton v. O'Connor, 
 33 L. R. A. 524, holding invalidity of part of insolvency law impairing obligation 
 of contract does not invalidate part as to transfer of property to assignee; Re 
 Dalpay, 6 L. R. A. 110, holding assignment with preferences in one state not 
 valid as to property in another. 
 
 Cited in notes (23 L. R. A. 38) upon transfer of property out of the state by 
 bankruptcy or insolvency proceedings or assignment for creditors; (17 L. R. A. 
 86) upon the law of comity as affecting insolvent laws of states; (17 L. R. A. 
 84) upon state insolvent laws having no extraterritorial effect; (37 L. R. A. 484) 
 on effect of insolvency statutes upon a mortgage or sale preferring creditors. 
 Measure of damages for conversion. 
 
 Cited in Davis v. Bowers Granite Co. 75 Vt. 289, 54 Atl. 1084, holding court 
 can permit plaintiff to reduce verdict to amount declared for and then render 
 judgment. 
 
 Cited in footnotes to Wright v. Bank of the Metropolis, 1 L. R. A. 289, holding 
 as measure of damages for conversion of corporate stock cost of repurchasing 
 within reasonable time, less debt secured, with interest; Woods v. Nichols, 48 
 L. R. A. 773, holding damages in trover by one retaining property as security 
 measured by balance due, less depreciation by authorized use. 
 L.R.A. Au. Vol. L 2. 
 
1 L.R.A. 120] L. R. A. CASES AS AUTHORITIES. 18 
 
 Distinguished in Gensburg v. Marshall Field & Co. 104 Iowa, 602, 74 X. W. 3. 
 holding damages for converting personal property measured by market value, 
 with interest. 
 
 Necessity of demand for return of property to sustain action for con- 
 version. 
 
 Cited in Jackman v. Eau Claire Nat. Bank, 125 Wis. 475, 115 Am. St. Rep. 955, 
 104 N. W. 98, holding where defendant put it out of his power to return the 
 property no demand was necessary. 
 Modification of judgment as entitling: party to costs. 
 
 Cited in Davis v. Goulette, 81 Vt. 259, 69 Atl. 827, holding the trial cdurt 
 having inadvertently rendered judgment against the garnishee for a larger sum 
 than that against the defendant, the garnishee was entitled to his costs in Su- 
 preme Court upon their filing a remittitur for the excess. 
 Evidence as to value. 
 
 Cited in Belka v. Allen, 82 Vt. 461, 74 Atl. 91, holding in an action by a buyer 
 against a seller for deceit in the sale, evidence of seller's offer to resell the prop- 
 erty to the buyer for one half the former price is admissible both to show fraud 
 and as bearing on the question of damages by affording an index to the value of 
 the property; Griffin v. Martel, 77 Vt. 27, 58 Atl. 788, holding cost of the goods 
 some evidence of their present value. 
 
 1 L. R. A. 125, ALEXANDER v. ALEXANDER, 85 Va. 353, 7 S. E. 335. 
 Who may be considered on appeal. 
 
 Cited in Nicholson v. Gloucester Charity School, 93 Va. 103, 24 S. E. 916, 
 holding parties whose appeal dismissed, standing on same ground with those ap- 
 pealing, should have rights settled; Roanoke v. Blair, 107 Va. 647, 60 S. E. 75, 
 holding where the parties appealing and those not appealing stand upon the 
 same ground, and their rights are involved in the same question and equally 
 affected by same judgment or decree the appellate court will consider their 
 rights. 
 MnltifarionsnesB. 
 
 Cited in Benson v. Keller, 37 Or. 125, 60 Pac. 918, declaring that whether 
 multifariousness exists must be left largely to discretion of court; Carey v. Cof- 
 fee-Stemming Mach. Co. 1 Va. Dec. 866, 20 S. E. 778, holding it not multifarious 
 for shareholders to join in suit against company and its directors to cancel stock 
 subscriptions for fraud; Alabama G. S. R. Co. v. Prouty, 149 Ala. 77, 43 So. 352, 
 holding it is the joinder of different and distinct and independent matters; Brown 
 v. Tulley, 25 R. I. 584, 57 Atl. 380, holding rule against multifariousness will not 
 be applied where the circumstances of the case make a combination of causes of 
 or a joinder of parties more convenient for them than a separation would be. 
 
 Cited in footnote to Emerson v. Nash, 70 L.R.A. 326, which holds making of 
 contract between two or more persons on each side which creates a situation 
 involving presently or proximately separate rights on one side each of which 
 with violation thereof by other side would constitute complete ground of com- 
 plaint for judicial redress a "transaction" within meaning of statute permitting 
 joinder of causes of action arising from same transaction. 
 Suit by wife against husband. 
 
 Cited in Mynes v. Mynes, 47 W. Va. 695, 35 S. E. 935, holding statute of limita- 
 tions, after commencing to run, not interrupted by wife's disability, if any, to sue 
 husband. 
 
 Cited in note (6 L. R. A. 507) upon suite against firm to which husband be- 
 longs. 
 
19 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 131 
 
 Distinguished in Bennett v. Bennett, 37 W. Va. 399, 38 Am. St. Rep. 47, 16 
 S. E. 638, holding that wife cannot sue husband at common law, but that con- 
 fession of judgment by him to her is good as against his creditors. 
 Married woman's act as affecting husband's rights in wife's property. 
 
 Cited in Keagy v. Trout, 85 Va. 400, 7 S. E. 329, holding property left by will 
 to wife before married woman's act could not be reduced to husband's possession 
 subsequent thereto; Trapnell v. Conklyn, 37 W. Va. 257, 38 Am. St. Rep. 30, 
 16 S. E. 570, favoring doctrine that husband had no vested right in wife's prop- 
 erty before passage of married woman's act; Guernsey v. Lazear, 51 W. Va. 330, 
 41 S. E. 405, holding that husband has no tenancy by curtesy initiate in wife's 
 separate estate on which judgment against him may attach; Welsh v. Solen- 
 berger, 85 Va. 447, 8 S. E. 91, holding husband has no tenancy by curtesy in 
 wife's separate property purchased since married woman's act subject to judg- 
 ment against him; State ex rel. Thompson v. McAllister, 38 W. Va. 512, 24 
 L. R. A. 353, 18 S. E. 770 (dissenting opinion), as to husband's estate in wife's 
 separate estate during her lifetime. 
 
 Cited in footnote to Moore v. Darby, 13 L. R. A. 346, holding wife's share in 
 proceeds of land sold under partition which vested after act, hers, not her hus- 
 band's. 
 
 Cited in notes (7 L. R. A. 693) as to effect of statute upon husband's tenancy 
 by curtesy; (19 L. R. A. 259) as to power of legislature to destroy right of 
 curtesy; (19 L. R. A. 259) as to power of legislature to destroy rights in wife's 
 personal property. 
 
 Distinguished and questioned in Leete v. State Bank, 115 Mo. 202, 21 S. W. 788, 
 holding married woman's act did not cut off husband's vested right to reduce 
 to possession property left by will before act passed. 
 Legislative abolition of dower or curtesy. 
 
 Cited in Griswold v. McGee, 102 Minn. 125, 112 N. W. 1020, 12 A. & E. Ann. 
 Cas. 186, holding statutory right which wife has in lands of her husband during 
 coverture, is inchoate and contingent, and may, at any time before it becomes 
 consummate by death of the husband, be diminished or entirely taken away by 
 the legislature. 
 
 Cited in notes (84 Am. St. Rep. 441, 445) on constitutionality of statutes 
 affecting husband's estate in wife's personal property; (112 Am. St. Rep. 595) 
 on right of legislature to abolish tenancy by the curtesy; (128 Am. St. Rep. 488) 
 on statutes abolishing estates of tenancy by the curtesy. 
 
 1 L. R. A. 131, PIDCOCK v. UNION P. R. CO. 5 Utah, 612, 19 Pac. 191. 
 AVhat perils assumed by servant. 
 
 Cited in Wright v. Southern P. Co. 14 Utah, 393, 46 Pac. 374, holding switch- 
 man did not assume peril of not employing fireman on engine; Mangum v. Bullion, 
 B. & C. Min. Co. 15 Utah, 549, 50 Pac. 834, holding mine laborer did not assume 
 risk of being lowered in cage with defective machinery; Leach v. Oregon Short 
 Line R. Co. 29 Utah, 303, 110 Am. St. Rep. 708, 81 Pac. 90, holding servant 
 assumes only the natural and ordinary risks and damages incident to the em- 
 ployment, and such other unusual or extraordinary risks, due to defects In ap- 
 pliances and equipment, of which he knows, or which are so obvious that he will 
 be presumed to have known of them. 
 
 Cited in footnotes to Minty v. Union P. R. Co. 4 L.R.A. 409, holding traveling 
 auditor of railroad assumes ordinary risks incident to employment; Brazil Block 
 Coal Co. v. Gaffney. 4 L.R.A. 851, holding inexperienced boy does not assume risk 
 of coupling cars; Taylor v. Evansville & T. H. R. Co. 6 L.R.A. 585, holding risk 
 created by vice principal's negligence in making work unsafe not assumed. 
 
1 L.R.A. 131] L. R. A. CASES AS AUTHORITIES. 20 
 
 Cited in notes (12 L.R.A. 342) on assumption of ordinary risks of employ- 
 ment; (28 L.R.A. (N.S.) 1233) as to whether servant may assume risk of dangers 
 created by master's negligence. 
 Posts, switch-stands and the like near to tracks. 
 
 Cited in Murphy v. Wabash R. Co. 115 Mo. 122, 21 S. W. 862, holding peril of 
 fence within 18 inches of tender not assumed by engineer; Boss v. Northern P. 
 R. Co. 2 N. D. 136, 33 Am. St. Rep. 756, 49 N. W. 655, holding section hand did 
 not assume peril of switch stand too near track; Pittsburgh, C. C. & St. L. R. Co. 
 v. Parish, 28 Ind. App. 202, 91 Am. St. Rep. 120, 62 N. E. 514, holding freight 
 conductor on top of car did not assume risk of tree near track; Georgia P. R. Co. 
 v. Davis, 92 Ala. 309, 25 Am. St. Rep. 47, 9 So. 252, holding brakeman did not 
 assume peril of projecting rock in cut unknown to him; Harvey v. Texas & P. R. 
 Co. 92 C. C. A. 237, 166 Fed. 392, holding under statute a railroad engine hostler 
 did not as a matter of law assume risk of injury from roundhouse post negli- 
 gently set too near track; McCabe v. Montana C. R. Co. 30 Mont. 336, 76 Pac. 
 701, holding under the evidence the question of whether a freight brakeman en- 
 gaged in switching and who was injured while mounting an engine by coming 
 in contact with a switch stand placed near the track assumed risk of injury was 
 one for jury. 
 
 Cited in footnotes to Williamson v. Newport News & M. Valley Co. 12 L.R.A. 
 297, hloding brakeman with knowledge of low bridge assumed the risk; McKee 
 v. Chicago, R. I. & P. R. Co. 13 L.R.A. 817, holding brakeman assumed risk of 
 wing fence at cattle guard 4 feet from rails; Jacksonville, T. & K. W. R. Co. v. 
 Galvin, 16 L.R.A. 337, holding risk from lumber projecting from car assumed 
 by brakeman; Mensch v. Pennsylvania R. Co. 17 L.R.A. 450, holding bolt pro- 
 jecting from end of car a risk assumed; Murray v. Boston & M. R. Co. 61 L.R.A. 
 495, holding risk from proximity of jigger stand to switch not assumed by brake- 
 man. 
 Negligence In nse of switch as question for jnry. 
 
 Cited in note (26 L.R.A. (N.S.) 602) on negligence in use of switch of par- 
 ticular type or construction as question for jury. 
 
 1 L. R. A. 133, NEW JERSEY ZINC & IRON CO. v. MORRIS CANAL & BKG, 
 
 CO. 44 N. J. Eq. 398, 15 Atl. 227. 
 
 Affirmed without opinion in 47 N. J. Eq. 598, 22 Atl. 1076. 
 Riparian owner's rights. 
 
 Cited in Hanford v. St. Paul & D. R. Co. 43 Minn. 116, 7 L. R. A. 726, 44 
 N. W. 1144, holding riparian owner's right of property in submerged land to 
 line of navigability severable and transferable; Hobart v. Hall, 174 Fed. 455, 
 holding under the law of Minnesota, the state has no proprietary title to navi- 
 gable waters within the state below low water mark, but such title as it has is 
 sovereign only held in trust for the protection of the public right of navigation 
 and incapable of alienation; Mobile Transp. Co. v. Mobile, 153 Ala. 418, 13 L.R.A. 
 (N.S.) 357, 127 Am. St. Rep. 34, 44 So. 976, holding on all waterways, whether 
 tidal or not, the riparian owner has the right at common law to dock out to 
 navigable water, subject to the rights of navigation and the rules of public con- 
 trol; East Boston Co. v. Com. 203 Mass. 73, 89 N. E. 236, 17 A. & E. Ann. Cas. 
 146, holding in interpreting the phrase "ordinary low water mark," where the 
 distinction intended is between the extreme low water mark and the ordinary or 
 common line of low water, having reference to all times and seasons, the only way 
 to reach the correct result is to take the average of low tides which gives the 
 line of mean low water; Shamberg v. Riparian Comrs. 72 N. J. L. 133, 60 Atl. 43, 
 on rights of riparian owners. 
 
21 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 140 
 
 Cited in footnote to Webb v. Demopolis, 21 L. R. A. 62, which holds upland 
 owner's title extends to low-water mark. 
 
 Cited in notes (12 L. R. A. 639) on rights of riparian owners; (40 L. R. A. 
 603) on the right of owner of upland to access to navigable water; (42 L. R. A. 
 163) on title to land under water; (12 L. R. A. 634) on title to land below high- 
 water line on navigable waters being in state; (40 L. R. A. 638) upon right to 
 erect wharves; (8 L.R.A. 92) upon right to construct piers, subject to control; 
 (19 Am. St. Rep. 232) on rights of littoral and riparian owners in navigable 
 waters. 
 Kiiilits acquired by condemnation. 
 
 Cited in Delaware, L. & W. R. Co. v. Breckenridge, 55 N. J. Eq. 148, 35 Atl. 
 756, holding right acquired by condemnation an easement only; Minnesota Canal 
 
 6 Power Co. v. Koochiching Co. 97 Minn. 435, 5 L.R.A.(N.S.) 642, 107 N. W. 405. 
 
 7 A. & E. Ann. Cas. 1182; Metlar v. Middlesex & S. Traction Co. 72 N. J. L. 526, 
 63 Atl. 497, holding grant of power is to be sfrictly construed against grantee; 
 Currie v. New York Transit Co. 66 N. J. Eqi 315, 105 Am. St. Rep. 647, 58 Atl. 
 308, holding the quantity of interest which a railroad corporation acquires in 
 land, taken by it under the power of eminent domain, is that which the statute 
 -conferring the power authorizes it to take. 
 
 Cited in note (8 L. R. A. 472) upon right of owner of soil to use of highway. 
 Rig'hts by adverse possession. 
 
 Cited in Pennsylvania R. Co. v. Breckenridge, 60 N. J. L. 586, 38 Atl. 740, 
 holding railroad company's right to maintain bridge over highway by adverse 
 possession, not prevent laying pipes beneath surface of highway. 
 Kig'bts by deed. 
 
 Cited in Sherman v. Sherman, 23 S. D. 503, 122 N. W. 439 (dissenting opinion), 
 on title acquired by release by guardian of right of way to railroad. 
 
 Distinguished in United States Pipe Line Co. v. Delaware, L. & W. R. Co. 62 
 N. J. L. 271, 42 L. R. A. 580, 41 Atl. 759, holding pipes could not be placed 
 under surface of wagon road reserved in deed conveying fee to railroad. 
 
 1 L. R. A. 140, PRESTON v. CINCINNATI, C. & H. VALLEY R. CO. 36 Fed. 54. 
 
 Action on unpaid subscription to stock. 
 
 Cited in Salt Lake Hardware Co. v. Tintic Milling Co. 13 Utah, 431, 45 Pac. 
 200, holding stockholder not relieved from liability on stock by company's ac- 
 ceptance of worthless property in payment; Re Hess Mfg. Co. 23 Ont. Rep. 188, 
 as to liability of director or promoter when payment for shares is fictitious. 
 
 Cited in note (42 L. R. A. 608) on how far the payment for stock in a cor- 
 poration by a transfer of property will protect shareholder against creditors of 
 company. 
 \\ . !_.! i i! ii contracts. 
 
 Cited in Johnston v. Miller, 67 Ark. 176, 53 S. W. 1052, holding facts did not 
 disclose that broker, in purchasing cotton on margin for customer, did not con- 
 template actual delivery. 
 
 Cited in footnotes to Sprague v. Warren, 3 L. R. A. 679, holding intention to 
 deliver or receive corn in transaction on margin not shown; Cashman v. Root, 
 12 L. R. A. 511, holding purchase of stock on margin for one receiving or paying 
 only difference between buying and selling values,, invalid ; Booth v. People, 50 
 L. R. A. 762, holding valid statute making it unlawful to deal in options on 
 specified commodities; Baxter v. Deneen, 64 L.R.A. 949, which holds that broker 
 with whom margins have been deposited in a stock gambling transaction will not 
 te enjoined from violating agreement to keep them on deposit in a specified bank 
 
1 L.R.A. 140] L. R. A. CASES AS AUTHORITIES. 22 
 
 until the transaction is closed; Scales T. State, 66 L.R.A. 730, which holds 
 wagering contract in futures not shown by fact that purchaser intended to sell 
 his contract before time for performance arrived unless noncontemplation of 
 actual performance of obligation by other party is also shown. 
 
 Cited in notes (5 L. R. A. 201) on wagers and wagering contracts; (3 L. R. A. 
 679) on wagering contracts being void; (5 L. R. A. 202) on rule as to contracts 
 for future delivery; (4 L. R. A. 400) on conveyance of property to be acquired 
 in the future; (22 L.R.A. (N.S.) 177) on inference as to character of transaction 
 on margin. 
 
 1 L. R, A. 143, McCORD v. WESTERN U. TELEG. CO. 39 Minn. 181, 12 Am. St. 
 
 Rep. 636, 39 N. W. 315. 
 Liability of master for acts of servant. 
 
 Cited in Penas v. Chicago, M. & St. P. R. Co. 112 Minn. 216, 30 L.R.A.(X.S.) 
 633, 140 Am. St. Rep. 470, 127 N. W. 926, holding that liability of railroad for 
 ejection of minor from moving train by brakeman is question for jury; 
 Poteet v. Blossom Oil & Cotton Co. 53 Tex. Civ. App. 191, 115 S. W. 289, hold- 
 ing owner of mill liable for injury to visiting child from negligence of manager 
 in permitting it to remain in room containing dangerous machinery; Kiviechen 
 v. Holmes & H. Co. 106 Minn. 148, 19 L.R.A. (N.S.) 255, 118 N. W. 668 (dis- 
 senting opinion), on liability of master for negligence of servant outside scope 
 of his employment; Dean v. St. Paul Union Depot Co. 41 Minn. 362, 5 L.R.A. 
 443, 16 Am. St. Rep. 703, 43 N. W. 54, holding depot company liable for as- 
 sault on traveler by vicious employee of lessee. 
 
 Cited in footnotes to North Chicago City R. Co. v. Gastka, 4 L. R. A. 481, 
 holding street railroad company liable for malicious assault of conductor in 
 ejecting passenger; Dwindle v. New York C. & H. R. R. Co. 8 L. R. A. 224, hold- 
 ing company liable for assault by sleeping-car porter upon passenger temporarily 
 detained by defect in roadbed. 
 
 Cited in notes (105 Am. St. Rep. 349) on liability of carrier for acts of serv- 
 ant; (12 Eng. Rul. Cas. 307) on imputing fraud of servant or agent to master 
 or principal. 
 
 Distinguished in National Bank of Commerce v. Chicago, B. & N. R. Co. 44 
 Minn. 234, 9 L. R. A. 269, 46 N. W. 342, holding carrier not bound for wheat 
 never received for transportation though billed by station agent; Campbell v. 
 Northern P. R. Co. 51 Minn. 491, 53 N. W. 768, holding railroad company not 
 liable for assault committed by its physician on patient. 
 Liability of telegraph company as to messages. 
 
 Cited in Usher v. Western U. Teleg. Co. 122 Mo. App. 98, 98 S. W. 84, holding 
 telegraph company not liable for act outside scope of employment of agent as 
 to one to whom it owed no duty; Halsted v. Postal Teleg. Cable Co. 120 App. 
 Div. 433, 10 N. Y. Supp. 1016 (dissenting opinion), on liability for mistake in 
 transmission of message by operator. 
 
 Cited in footnotes to Western U. Teleg. Co. v. Adams, 6 L.R.A. 844, holding 
 failure to disclose relationship no excuse for not delivering message which would 
 have enabled receiver to be with dying brother; Western U. Teleg. Co. v. Cooper, 
 1 L.R.A. 728, holding company liable for failure to deliver telegram summoning 
 physician. 
 Fraudulent message. 
 
 Cited in Pacific Postal Teleg. Cable Co. v. Bank of Palo Alto, 54 L.R.A. 713, 
 48 C. C. A. 413, 109 Fed. 372, Affirming 103 Fed. 843, holding telegraph company 
 liable for fraudulent message sent by its regular operator requesting payment of 
 money; Bank of Havelock v. Western U. Teleg. Co. 4 L.R.A.(N.S.) 181, 72 C. 
 
23 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 146 
 
 C. A. 580, 141 Fed. 532, 5 A. & E. Ann. Cas. 515, holding telegraph company 
 liable if it transmit message without investigating or communicating facts and 
 circumstances to addressee, where it receives for transmisson message under 
 circumstances to arouse suspicions of person of ordinary caution; Western U. 
 Teleg. Co. v. Uvalde Nat. Bank, 97 Tex. 219, 65 L.R.A. 805, 77 S. W. 603, 1 A, 
 & E. Ann. Cas. 573, holding/ in absence of negligence, telegraph company not 
 liable for delivering fraudulent telegram by one who tapped wires; Usher v. 
 Western U. Teleg. Co. 122 Mo. App. 105, 98 S. W. 84, holding company not liable 
 for damages from telegram forged by operator, where damages are not proximate 
 cause of forgery; Bank of Havelock v. Western U. Teleg. Co. 4 L.R.A.(X.S.) 188, 
 72 C. C. A. 580, 141 Fed. 531, 5 A. & E. Ann. Cas. 515, holding company not liable 
 for loss of lien by mortgagor from sending of telegram received by telephone 
 from one without authority to send it; Western U. Teleg. Co. v. Uvalde Nat. 
 Bank, 97 Tex. 225, 65 L.R.A. 810, 77 S. W. 603, 1 A. & E. Ann. Cas. 573, hold- 
 ing company liable, where swindler tapped wire, intercepted message and sent 
 reply resulting in cashing of draft. 
 
 Cited in note (65 L.R.A. 807) on liability of telegraph company for trans- 
 mission or delivery of forged message. 
 
 1 L. R. A. 146, BURDON v. MASSACHUSETTS SAFETY FUND ASSO. 147 
 
 Mass. 360, 17 N. E. 874. 
 When right of parties* In insolvent corporation fixed. 
 
 Cited in People v. Commercial Alliance L. Ins. Co. 154 N. Y. 100, 47 N. E. 
 968, Affirming 17 App. Div. 382, 45 N. Y. Supp. 223; Merrill v. Commonwealth 
 Mut. F. Ins. Co. 171 Mass. 83, 50 N. E. 519; Fogg v. Supreme Lodge, U. O. of 
 G. L. 159 Mass. 12, 33 N. E. 692, holding date of filing bill for dissolution of 
 insurance company fixed rights of parties in assets; Jones v. Arena Pub. Co. 171 
 Mass. 27, 50 N. E. 15, adopting date of appointing receiver to fix rights of par- 
 ties; Michel v. Southern Ins. Co. 128 La. 566, 54 So. 1010, holding that policy 
 nolder cannot recover for loss occurring one day after dissolution of company 
 but is creditor to extent of unearned premium. 
 Effect of appointing receiver. 
 
 Cited in Garham v. Mutual Aid Soc. 161 Mass. 365, 37 N. E. 447, holding prior 
 attachments not dissolved by appointment. 
 Rights In reserve fund. 
 
 Cited in Palmer v. Northern Mut. Relief Asso. 175 Mass. 398, 78 Am. St. Rep. 
 503, 56 N. E. 828, holding death fund held in trust for certificate holders could 
 not be attached to pay death claimant; Re Equitable Reserve Fund Life Asso. 
 131 N. Y. 374, 30 N. E. 114, Modifying 61 Hun, 303, 16 N. Y. Supp. 80, holding 
 death claimants could not resort to reserve fund when death fund insufficient; 
 Buswell v. Supreme Sitting 0. of I. H. 161 Mass. 231, 23 L. R. A. 850, 36 N. E. 
 1065, holding reserve fund belonged to supreme order for benefit of certificate 
 holders, and not to its local branches; Fogg v. Supreme Lodge U. O. of G. L. 159 
 Mass. 15, 33 N. E. 692, discussing, but not determining, right of general credit- 
 ors to be paid from reserve and benefit funds. 
 
 Cited in notes (38 L. R. A. 109) on distribution of special funds of insolvent 
 insurance company; (3 L.R.A. (N.S.) 654) on distribution of surplus upon dis- 
 solution of mutual insurance company. 
 
 Distinguished in Re Wisconsin Odd Fellows' Mut. L. Ins. Co. 101 Wis. 7, 42 
 L. R. A. 302, 76 X. W. 775, holding death claim arising after assignment by 
 society not enforceable against reserve fund; People ex rel. Atty. Gen. v. Life & 
 Reserve Asso. 150 N. Y. 113, 45 N. E. 8, requiring distribution of reserve fund in 
 
1 L.R.A. 146] L. R. A. CASES AS AUTHORITIES. 24 
 
 payment of claims for deaths, before applying balance pro rata among other 
 holders of reserve certificates. 
 Proper remedy of beneficiary. 
 
 Cited in Palmer v. Northern Mut. Relief Asso. 175 Mass. 309, 78 Am. St. Rep. 
 503, 56 N. E. 828, holding proceeding in equity, not attachment, proper remedy 
 for one claiming death benefit; Garcelon v. Commercial Travelers' Eastern Acci. 
 Asso. 184 Mass. 11, 67 N. E. 868, sustaining action at law against benefit society 
 for failure to assess members to pay for injury resulting in amputation of arm 
 of fellow member; Verner v. Simpson, 68 S. C. 461, 47 S. E. 729, as to whether 
 property bought by annual premiums of a mutual insurance company, which 
 by its by-laws is not subject to payment of fire losses, except by order of direc- 
 tors, can be levied on under execution by members of company to pay judgment 
 for loss by fire. 
 
 Cited in footnotes to Newman v. Covenant Mut. Ben. Asso. 1 L. R. A. 659, hold- 
 ing proper judgment for amount of insurance certificate with interest, when as- 
 sociation has refused to obey decree ordering assessment; Bentz v. Northwestern 
 Aid Asso. 2 L. R. A. 784, holding action for breach of contract proper remedy for 
 refusal to make assessment for death claim. 
 
 Cited in notes (2 L. R. A. 788) on remedy for refusal of mutual benefit asso- 
 ciation to levy assessment for death claim; (8 L. R. A. 114, 116) on action on 
 contract of mutual benefit association. 
 
 Distinguished in Ring v. United States Life & Acci. Asso. 33 111. App. 174, 
 holding action at law maintainable on certificate making absolute promise to 
 pay specified amount on proof of death; Reed v. Ancient Order, R. C. 8 Idaho, 
 413, 69 Pac. 127, holding an action at law will lie on a certificate of membership 
 which provides that upon the death of the member the association will pay to 
 the beneficiary therein named out of the mortuary fund the amount of one 
 assessment on the membership, not exceeding $2,000. 
 Kig-lits of certificate holders. 
 
 Cited in J. P. Lamb & Co. v. Merchants' Nat. Mut. F. Ins. Co. 18 N. D. 267, 
 119 N. W. 1048, holding that policy holder cannot recover for loss after can- 
 celation of policy for failure to pay premium within time prescribed by by-laws. 
 
 Cited in footnotes to Lorscher v. Supreme Lodge, K. of H. 2 L. R. A. 206, hold- 
 ing execution of certificate admitted by pleading; Davidson v. Old Peoples' Mut, 
 Ben. Soc. 1 L. R. A. 482, holding reinstatement no consideration for stipulation 
 to receive part of sum due as full payment. 
 
 Cited in notes (7 L.R.A. 189) on transfer of mutual benefit certificates; (19 
 Am. St. Rep. 784) on forfeiture of insurance provided by mutual benefit asso- 
 ciation. 
 Jurisdiction of eQuity to dissolve voluntary unincorporated associations. 
 
 Cited in note (68 Am. St. Rep. 871) on jurisdiction of equity to dissolve 
 voluntary unincorporated associations. 
 
 1 L. R. A. 152, HARRAH v. JACOBS, 75 Iowa, 72, 39 N. W. 187. 
 Rights of joint obligor paying- obligation. 
 
 Cited in Allison v. Pattison, 96 Ala. 162, 11 So. 194, holding paying joint 
 obligor who took assignment of lien on crops to secure it, was not thereby en- 
 titled to try right of property; Weiser v. Ross, 150 Iowa, 361, 130 N. W. 387, 
 holding that payment of judgment on note, which, under contract with co- 
 obligor, defendant had assumed, amounts to satisfaction of note and precludes 
 subsequent recovery against co-obligor. 
 
25 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 152 
 
 Cited in notes (17 Am. St. Rep. 276) on surety's claim upon principal; (68 
 L.R.A. 563) on extinction of judgments against principals by sureties' payment. 
 Limitation of action for contribution. 
 
 Cited in Guild v. McDaniels, 43 Kan. 551, 23 Pac. 607, holding three years' 
 statute of limitation applies to action against principal by surety paying note 
 signed by him as joint maker; Sparks v. Childers, 2 Ind. Terr. 193, 47 S. W. 316, 
 holding action against principal by surety paying note may be considered as ac- 
 tion on note within rule as to running of limitations; Van Patten v. Waugh, 122 
 Iowa, 303, 98 N. W. 119, holding action by surety on note against principal barred 
 by statute of limitations of five years; Burrus v. Cook, 215 Mo. 505, 114 S. W. 
 1065, Affirming 117 Mo. App. 402, 93 S. W. 888, holding period of limitation of 
 action whether against principal or cosurety begins to run from day of surety's 
 payment. 
 
 1 L. R. A. 152, NISBET v. GARNER, 75 Iowa, 314, 9 Am. St. Rep. 486, 39 N. W. 
 
 516. 
 Impntetl negligrence. 
 
 Applied in Barnes v. Marcus, 96 Iowa, 677, 65 N. W. 984, holding negligence 
 of one stepping on loose end of plank not imputable to his companion tripped 
 up thereby; Abbitt v. Lake Erie W. R. Co. 150 Ind. 514, 50 N. E. 729, holding 
 negligence of servant imputable to fellow servant where relation of agency exists. 
 
 Cited in notes (4 L. R. A. 126; 6 L. R. A. 143; 8 L. R. A. 494, 495) on doctrine 
 of imputed negligence; (1 L. R. A. 681) on damages for personal injury by 
 collision between carriers; (16 Am. St. Rep. 253; 110 Am. St. Rep. 280, 291) on 
 imputed negligence. 
 Of driver to passenger. 
 
 Cited in Pyle v. Clark, 75 Fed. 647, holding livery carriage driver's negligence 
 not imputable to passenger; Elyton Land Co. v. Mingea, 89 Ala. 529, 7 So. 666, 
 holding negligence of driver of hose cart not imputable to fireman having no 
 control over him; Larkin v. Burlington, C. R. & N. R. Co. 85 Iowa, 504, 52 N. 
 W. 480, holding it a question for the jury whether livery carriage driver's neg- 
 ligence imputable to passenger; Mullen v. Owosso, 100 Mich. 108, 23 L. R. A. 
 694, footnote, p. 693, 43 Am. St. Rep. 436, 58 N. W. 663 (dissenting opinion), 
 majority holding negligence of driver imputable to one voluntarily riding with 
 him; McBride v. Des Moines City R. Co. 134 Iowa, 407, 109 N. W. 618, holding 
 negligence of driver of fire wagon colliding with street car not imputable to 
 fireman; Stotelmeyer v. Chicago, M. & St. P. R. Co. 148 Iowa, 285, 127 N. W. 
 205, holding that instruction that negligence of driver would be imputed to 
 plaintiff is not open to objection by defendant that its indirect effect was to 
 impute to plaintiff, freedom from negligence; Quinette v. Bisso, 5 L.R.A.(X.S.) 
 315, 69 C. C. A. 503, 136 Fed. 839, holding passenger on skiff not chargeable 
 with negligence of owner in failing to equip skiff with fog horn; Bresee v. Los 
 Angeles Traction Co. 149 Cal. 137, 5 L.R.A. (N.S.) 1062,- 85 Pac. 152; Chicago 
 Union Traction Co. v. Leach, 117 111. App. 172; Shultz v. Old Colony Street R. 
 Co. 193 Mass. 317, 8 L.R.A. (N.S.) 607, 118 Am. St. Rep. 502, 79 N. E. 873, 9 A. 
 & E. Ann. Cas. 402, holding negligence of driver of carriage not imputable to 
 guest or passenger. 
 
 Cited in footnotes to East Tennessee, V. & G. R. Co. v. Markens, 14 L. R. A. 281, 
 which holds the negligence of a hack driver not imputable to a passenger; Kop- 
 litz v. St. Paul, 58 L. R. A. 74, holding omnibus driver's negligence not imputa- 
 ble to lady passenger having nothing to do with luring conveyance; Illinois C. 
 R. Co. v. McLeod, 52 L. R. A. 954, holding it the duty of one hiring team and 
 driver to remonstrate against latter crossing track without stopping and lis- 
 
1 L.R.A. 152] L. R. A. CASES Afc> AUTHORITIES. 26 
 
 tening for train; McKernan v. Detroit Citizens' Street R. Co. 68 L.R.A. 347, 
 which holds negligence of driver of fire engine in colliding with street car not im- 
 putable to fireman riding on engine; St. Louis & S. F. R. Co. v. McFall, 69 
 L.R.A. 217, which holds engineer's negligence resulting in collision not imput- 
 able to conductor; Markowitz v. Metropolitan Street R. Co. 69 L.R.A. 389, which 
 holds negligence of driver imputable to employer seated beside him; Colorado & 
 Southern R. Co. v. Thomas, 70 L.R.A. 681, which denies right of recovery for 
 death by collision with train of one joining with driver of conveyance in testing 
 danger of attempting to cross tracks in front of train. 
 
 Cited in notes (9 L.R.A. 157) on imputing driver's negligence to passenger; 
 (69 L.R.A. 217; 8 L.R.A. (N.S.) 600, 604, 628, 644, 650, 658, 665, 670; 57 Am. 
 St. Rep. 360) on same point. 
 
 Of parent to child. 
 
 Cited in Wymore v. Mahaska County, 78 Iowa, 398, 6 L. R. A. 547, 16 Am. St. 
 Rep. 449, 43 N. W. 264, holding parents' negligence not prevent recovery by ad- 
 ministrator for child killed, though parents entitled to child's estate; Wil- 
 liams v. South & North Ala. R. Co. 91 Ala. 639, 9 So. 77, holding minor em- 
 ployee's negligence causing his death, imputable to father consenting to son's 
 employment. 
 
 Cited in footnote -to Duval v. Atlantic Coast Line R. Co. 65 L.R.A. 722, which 
 holds father's negligence in driving not imputable to daughter riding with him. 
 
 Cited in note (8 L. R. A. 844) on imputing mother's negligence to child. 
 
 Distinguished in Bamberger v. Citizens' Street R. Co. 95 Tenn. 28, 28 L. R. A. 
 490, 49 Am. St. Rep. 909, 31 S. W. 163, holding action by father for child's 
 death defeated by father's negligence. 
 
 Of husband to wife. 
 
 Cited in Chicago, St. L. & P. R. Co. v. Spilker, 134 Tnd. 403, 33 N. E. 287, 
 holding husband's negligence while driving not imputable to wife, because under 
 his protection and control; Bailey v. Centerville, 115 Iowa, 273, 88 N. W. 379, 
 holding husband's negligence in stepping on end of loose board in sidewalk not 
 imputable to wife tripped up thereby; Elenz v. Conrad, 115 Iowa, 186, 88 N. W. 
 337, holding averme'nt of freedom from contributory negligence sufficiently al- 
 leges freedom from any imputable negligence of husband; Willfong v. Omaha 
 & St. L. R. Co. 116 Iowa, 553, 90 N. W. 358, as to rule of negligence of hus- 
 band imputable to wife. 
 Of wife to husband. 
 
 Cited in Chicago, B. & Q. R. Co. v. Honey, 26 L. R. A. 44, 12 C. C. A. 190, 27 
 
 U. S. App. 196, 63 Fed. 41, Reversing 59 Fed. 425, holding wife's contributory 
 
 negligence imputed to husband in action by latter for loss of former's services. 
 
 Subsequent condition of premises as evidence of condition at time of 
 
 accident. 
 
 Cited in Meyers v. Highland Boy Gold Min. Co. 28 Utah, 106, 77 Pac. 347, 
 holding evidence of condition two or three days after accident admissible it 
 not being shown that condition was different at time of accident. 
 
 Cited in note (32 L.R.A. (N.S.) 1118) on admissibility of evidence of con- 
 dition before and after accident of property whose defects alleged to have 
 caused injury. 
 
 1 L. R. A. 155, PECK v. BONEBRIGHT, 75 Iowa, 98, 39 N. W. 213. 
 Replevin. 
 
 Cited in Harvey v. Pinkerton, 101 Iowa, 249, 70 N. W. 192, holding it neces- 
 
27 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 157 
 
 sary for the jury in replevin for mortgaged chattels to find the amount due 
 defendant. 
 
 Cited in note (80 Am. St. Rep. 750) as to when replevin or claim and delivery 
 is sustainable. 
 
 1 L. R. A. 155, VAN TINE v. VAN TINE (N. J. Eq.) 15 Atl. 249. 
 Effect of statute of frauds on promise of posthumous grift. 
 
 Cited in Kofka v. Rosicky, 41 Neb. 345, 25 L. R. A. 213, 43 Am. St. Rep. 685, 
 59 N. W. 788, and Wright v. Wright, 99 Mich. 175, 23 L. R. A. 197, 58 N. W. 54, 
 holding contract to leave property to adopted child taken out of statute by per- 
 formance by child; Hood v. McGehee, 189 Fed. 208, holding that ineffective adop- 
 tion proceedings, accompanied by promise to leave property to adopted child, 
 may amount to contract which, when performed by child, may be specifically 
 enforced; Anderson v. Anderson, 75 Kan. 126, 9 L.R.A. (N.S.) 233, 88 Pac. 743, 
 holding agreement to will property to adopted child taken out of statute by 
 performance by child; Teske v. Dittberner, 70 Neb. 548, 113 Am. St. Rep. 802, 
 98 N. W. 57, holding that parol agreement to devise homestead property and 
 other property may be specifically enforced as to the other property; Re Sus- 
 man, 28 Pittsb. L. J. N. S. 103, holding child, not legally adopted, who has ren- 
 dered services due from chlid to parent, entitled to participate in distribution of 
 foster-parent's estate; Starnes v. Hatcher, 121 Tenn. 341, 117 S. W. 219, grant- 
 ing specific performance of contract to leave property to adopted child, though 
 contract to adopt is not performed; Jordan v. Abney, 97 Tex. 303, 78 S. W. 486, 
 as to whether specific performance can be had of a verbal contract to adopt as 
 an heir or to devise property; Chehak v. Battles, 133 Iowa, 109, 8 L.R.A.(N.S.) 
 1133, 110 N. W. 330, 12 A. & E. Ann. Cas. 140, holding surrender of child on 
 promise to make it heir specifically enforceable as to such promise. 
 
 Cited in note (14 L. R. A. 862) on effect of statute of frauds on agreement 
 to pay money or give property after promisor's death. 
 
 Distinguished in Renz v. Drury, 57 Kan. 88, 45 Pac. 71, refusing specific per- 
 formance of parol agreement to make child, not legally adopted, heir. 
 
 Disapproved in Austin v. Davis, 128 Ind. 478, 12 L. R. A. 124, 25 Am. St. Rep. 
 456, 26 N. E. 890, holding verbal agreement to make child an heir, though 
 partly performed by child, within statute of frauds. 
 Effect of ineffective adoption on rights of adopting; parent. 
 
 Cited in Sarazin v. Union R. Co. 153 Mo. 486, 55 S. W. 92, holding that 
 adopting parent cannot recover for wrongful death of adopted child, where 
 acknowledgment of deed of adoption was defective. 
 Costs in partition. 
 
 Cited in note (10 L. R. A. 55) on costs in partition. 
 
 1 L. R. A. 157, NEW YORK, C. & ST. L. R. CO. v. DOANE, 115 Ind. 435, 7 Am. 
 
 St. Rep. 451, 17 N. E. 913. 
 Care required of passenger carrier. 
 
 Cited in note (10 Am. St. Rep. 64) on care required of passenger carrier. 
 Duty as to stations and platforms. 
 
 Cited in Toledo, St. L. & K. C. R. Co. v. Wingate, 143 Ind. 131, 37 N. E. 274, 
 holding carrier negligent in making platform 26 inches below lowest car step 
 and allowing insufficient time to alight; Birmingham R. Light & P. Co. v. Sea- 
 born, 168 Ala. 661, 53 So. 241, holding that railroad is liable for negligently 
 carrying passenger past station and misdirecting him as to return; Central of 
 
1 L.R.A. 157] L. R. A. CASES AS AUTHORITIES. 
 
 Georgia R. Co. v. Carlisle, 2 Ala. App. 516, 56 So. 737, holding railroad not liable 
 for fall of woman in alighting because her hands were full of packages. 
 
 Cited in notes (7 L. R. A. Ill) on duty to furnish safe stations and platforms 
 for passengers; (3 L. R. A. 75) on duty to furnish lights and guards; (6 L. R 
 A. 194) on duty to light stations; (7 L. R. A. 689) on means of approach and 
 departure; (7 L. R. A. 113) on passenger carried beyond destination; (7 L. R. 
 A. 112) on liability for injury to passenger alighting from train; (11 L. R. A. 
 720) on duty of care for safety of passengers; (7 L.R.A.(N.S.) 1180) on what 
 injuries deemed proximate result of discharging passenger at wrong or improper 
 place; (17 L.R.A.(N.S.) 1228) on measure of damages for carrying passenger 
 beyond destination. 
 Duty as to passenger on freight train. 
 
 Approved in Chicago & A. R. Co. v. Arnol, 144 111. 272, 19 L. R. A. 316, 33 
 N. E. 204, and Moore v. Saginaw, T. & H. R. Co. 115 Mich. 107, 72 N. W. 1112, 
 holding carrier of passengers by freight train required to exercise highest degree 
 of care practicable. 
 
 Cited in Spence v. Chicago, R. I. & P. R. Co. 117 Iowa, 9, 90 N. W. 346, hold- 
 ing carrier liable for injury to passenger taken in construction train by con- 
 ductor in violation of orders. 
 
 Cited in footnote to Whitehead v. St. Louis, I. M. & S. R. Co. 6 L. R. A. 409, 
 which holds carrier owes duty to one riding on freight train with consent of 
 employees, though in violation of rules. 
 
 Cited in note (61 Am. St. Rep. 94, 95) on duty as to passenger on freight 
 train. 
 Contributory negligence of passengers. 
 
 Cited in Pittsburgh, C. C. & St. L. R. Co. v. Klitch, 11 Ind. App. 294, 37 N". 
 E. 560, holding passenger negligently discharged at wrong station not negligent 
 as matter of law in driving to proper station; Illinois C. R. Co. v. Check, 152 
 Ind. 670, 53 N. E. 641, holding woman not negligent in attempting, on carrier's 
 invitation, to enter car with step 3 feet from ground; Peirce v. Jones, 22 Ind. 
 App. 172, 53 N. E. 431, holding rider in carriage not negligent, as matter ol 
 law, in driving over crossing at flagman's signal; Adams v. Missouri P. R. Co. 
 100 Mo. 569, 12 S. W. 637 (dissenting opinion), majority holding passenger 
 discharged from caboose before reaching station could not recover for injury 
 received by jumping from flat car mounted to reach station. 
 
 Cited in footnote to White v. Cincinnati, N. 0. & T. P. R. Co. 7 L. R. A. 44, 
 which holds knowledge of defect in platform for loading stock not prevent recov- 
 ery for injury. 
 
 Cited in note (12 L.R.A.(N.S.) 359) on negligence of passenger ejected from 
 train, in walking on track. 
 
 Distinguished in Benson v. Central P. R. Co. 98 Cal. 50, 32 Pac. 809, holding 
 passenger left at wrong station negligent in walking on track to proper sta- 
 tion; Ham v. Delaware & H. Canal Co. 155 Pa. 558, 20 L. R. A. 685, 26 Atl. 757 
 (dissenting opinion), majority holding one wrongfully ejected required to leave 
 track only at earliest practicable opportunity. . 
 Termination of relation of carrier and passenger. 
 
 Cited in McGovern v. Interurban R. Co. 136 Iowa, 21. 13 L.R.A.(N".S.) 480, 
 125 Am. St. Rep. 215, 111 N. W. 412, holding in general it is not the duty of 
 an interurban company's employees to assist passengers in alighting but under 
 facts of present case the question was properly submitted to jury; Kentucky 
 & I. Bridge & R. Co. v. Buckler, 125 Ky. 30, 8 L.R.A.(N.S.) 557, 128 Am. St. 
 Rep. 234, 100 S. W. 328; Stevens v. Kansas City Elev. R. Co. 126 Mo. App. 626, 
 105 S. W. 26, holding the relation does not cease until carrier transports pas- 
 
29 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 161 
 
 senior to his destination and affords him a reasonable opportunity to alight in 
 safety from the vehicle. 
 
 1 L. R. A. 161, ELKINTON v. BRICK, 44 N. J. Eq. 154, 15 Atl. 391. 
 Presumption and burden of proof as to testamentary capacity. 
 
 Cited in McCoon v. Allen, 45 N. J. Eq. 719, 17 Atl. 820, holding presumption of 
 law in favor of capacity; Koegel v. Egner, 54 N. J. Eq. 629, 35 Atl. 394, holding 
 burden on contestants of proving incapacitating temporary insanity or drunken- 
 ness at time will made; Prentis v. Bates, 93 Mich. 247, 17 L. R. A. 506, 53 S. W. 
 153 (dissenting opinion), majority holding burden of proof as to testamentary 
 capacity on proponents throughout. 
 
 Cited in notes (17 L. R. A. 494, 497) on burden of proving testamentary 
 capacity; (36 L. R. A. 724, 735, 737) on presumption and burden of proof as 
 to sanity; (10 L. R. A. 576) on burden of proving insanity; (35 L. R. A. 123) 
 on presumption of continuance of insanity; (16 Am. St. Rep. 439) on burden of 
 proof. 
 Testamentary capacity. 
 
 Cited in Re Wilson, 117 Cal. 276, 49 Pac. 172, 711, holding evidence of fre- 
 quent drinking to excess insufficient to show lack of testamentary capacity. 
 
 Cited in notes (39 L. R. A. 226) on drunkenness as affecting testamentary 
 capacity; (2 L. R. A. 670) on intoxication or derangement of mind incapacitat- 
 ing; (4 L. R. A. 738) on insane delusions; (12 L. R. A. 161) on testamentary 
 capacity as affected by insane delusion; (6 L. R. A. 168) on capacity to make 
 will; (18 L.R.A.(N.S.) 100) on power of one lacking testamentary capacity, to 
 revoke will; (14 Am. St. Rep. 711) on testamentary capacity. 
 Undue influence. 
 
 Cited in White v. Starr, 47 N. J. Eq. 272, 20 Atl. 875, holding influence ac- 
 quired by kindness and affection not undue; Westcott v. Sheppard, 51 N. J. Eq. 
 320, 30 Atl. 428, Affirming 49 N. J. Eq. 527, 25 Atl. 254, holding influence 
 exerted by nurse in settling claim for past service and securing claim for future 
 service not undue; Reeves v. Howard, 118 Iowa, 127, 71 N. W. 896, holding mere 
 sickness and weakness of mind, without showing that will was overcome, insuffi- 
 cient proof of undue influence. 
 
 Cited in footnotes to Re Shell, 53 L.R.A. 387, which holds undue influence 
 cannot be inferred from motive or opportunity alone; Kennedy v. Dickey, 68 
 L.R.A. 317, which holds will not annulled for undue influence by honest and 
 moderate intercession or persuasion unaccompanied with fraud, deceit, threats, 
 or putting in fear. 
 
 Cited in notes (8 L.R.A. 261) on undue influence; (4 L.R.A. 738) on fraud 
 and undue influence; (14 Am. St. Rep. 711) on undue influence in procuring will; 
 (31 Am. St. Rep. 670, 678, 679) on undue influence as effecting validity of wills. 
 Presumption from attestation clause. 
 
 Cited in Darnell v. Buzby, 50 N. J. Eq. 730, 26 Atl. 676, holding that testa- 
 tor's declaration must state or lead to necessary inference that instrument exe- 
 cuted is a will; Re Beggans, 68 N. J. Eq. 574, 59 Atl. 874, holding imperfect at- 
 testation clause prima facie evidence of the facts stated but as to facts not stated 
 it possessed no probative force; Re Sizer, 129 App. Div. 10, 112 N. Y. Supp. 210, 
 holding an attestation clause taken together with proof of signatures of testa- 
 tor and subscribing witnesses is prima facie evidence of due execution of will. 
 Attestation of will. 
 
 Cited in Robbins v. Robbins, 50 N. J. Eq. 743, 26 Atl. 673, holding express 
 publication of will at time of execution unnecessary where witnesses previously 
 
1 L.K.A. 1G1] L. R. A. CASES AS AUTHORITIKS. 3O 
 
 requested to be present at that time to attest will : Farley v. Farley, 50 N. J. 
 Eq. 439, 26 Atl. 178, holding facts stated in attestation clause presumptively 
 true, on proof of signatures of witnesses. 
 
 Cited in notes (1 L. R. A. 492) on due execution of will under New York stat- 
 ute; (8 L. R. A. 824) on acknowledgment of signature. 
 Publication of will. 
 
 Cited in Danley v. Jefferson, 150 Mich. 593, 121 Am. St. Rep. 640, 114 N. W. 
 470, 13 A. & E. Ann. Gas. 242 (dissenting opinion), as to what constitutes suffi- 
 cient publication. 
 
 I L. R. A. 166, BATES v. BASSETT, 60 Vt. 530, 15 Atl. 200. 
 Municipal power to acquire and own property. 
 
 Cited in Lucia v. Montpelier, 60 Vt. 546, 1 L. R. A. 172, 15 Atl. 321, holding 
 power to supply village with water includes discretion to lay parallel main ; 
 Parker v. Concord, 71 N. H. 471, 52 Atl. 1095, upholding right of city to buy 
 land and erect building thereon for city purposes; Corinth v. Locke, 62 Vt. 416, 
 
 II L. R. A. 210, 20 Atl. 809, holding town's right to sue includes power to bid 
 at subsequent execution sale; Stockwell v. Rutland, 75 Vt. 80, 53 Atl. 132, hold- 
 ing town not liable for injury due to unguarded ditch dug for removal of munici- 
 pal water pipe. 
 
 Municipal buildings. 
 
 Cited in Brooks v. Brooklyn, 146 Iowa, 142, 26 L.R.A.(N.S.) 430, 124 N. W. 
 868, holding that town cannot erect opera house, though portion of it is to be 
 used for town offices; State ex rel. Johnson v. Brown, 111 Minn. 84, 126 N. W. 
 408, upholding power of park board to erect house in park for office and resi- 
 dence of superintendent; Hightower v. Raleigh, 150 N. C. 571, 65 S. E. 279, hold- 
 ing municipal buildings in cities of certain size a recognized municipal necessity, 
 and bonds issued for that purpose under proper authority given by legislature in 
 consequence of a resolution of the board of aldermen, declaring such building a 
 necessity, are valid without the approval of a majority of qualified voters; 
 Lowry v. Forest City, 39 Pa. Super. Ct. 279, upholding right of city to expend 
 money in alteration of public building. 
 
 Mnnicipal auditoriums and nails. 
 
 Cited in Denver v. Hallett, 34 Colo. 408, 83 Pac. 1066, holding it is within 
 power of city and county of Denver to provide by charter for the erection of an 
 auditorium, to purchase a site therefor and to issue bonds to discharge the in- 
 debtedness; Wheelock v. Lowell, 196 Mass. 228, 124 Am. St. Rep. 543, 81 N. E. 
 977, 12 A. & E. Ann. Cas. 1109, holding a city, which already has a city hall 
 sufficient for the accommodation of its city council and officers and public boards 
 may lawfully expend money in erecting a hall to be used for political rallies, 
 conventions and other public meetings and which may be occasionally be let for 
 private uses when not required for public needs. 
 
 Cited in note (26 L.R.A. (N.S.) 427, on power of municipality to construct 
 assembly, convention, exhibition, or amusement hall. 
 
 Distinguished in Brooks v. Brooklyn, 146 Iowa, 142, 26 L.R.A.(N.S.) 430, 124 
 N. W. 868, holding a town has no authority to construct a building for an opera 
 house or assembly hall where the form of government is representative and not 
 democratic, although it incidentally provides for accommodation in it of the fire 
 department and town offices. 
 Rental for private ase. 
 
 Cited in Gottlieb-Knabe & Co. v. Macklin, 109 Md. 436, 31 L.R.A.(N.S.) 585, 71 
 
31 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 173 
 
 Atf. 949, 16 Ana. Cos. 1092, sustaining power of city to rent unused building 
 to militia. 
 
 Cited in notes (11 L. R, A. 124) on power of town to build and rent for in- 
 come; (33 L. R. A. 119) on lease or license of public buildings for private pur- 
 poses; (35 L. R, A. 737) on right of a municipality to be a part owner of 
 property; (31 L.R.A.(N.S.) 580, 581) on right of municipality to permit use of, 
 or to lease public buildings for private purposes. 
 
 1 L. R. A. 169, LUCIA v. MONTPELIER, 60 Vt. 537, 15 Atl. 321. 
 l'owern of municipality. 
 
 Cited in footnote to Kingman v. Brockton, 11 L. R. A. 124, which holds erec- 
 tion of memorial hall, but not maintenance of G. A. R. post, a public purpose 
 within taxation clause. 
 
 Cited in notes (2 L. R. A. 721) on powers of municipal corporations; (61 L. 
 R. A. 38) on rights and duties of municipality. 
 
 Distinguished in Re Barre Water Co. 62 Vt. 33, 9 L. R. A. 198, 20 Atl. 109, dis- 
 cussing, without deciding, whether incidental cleansing of public sewers makes 
 public use. 
 
 1 L. R. A. 172, LAWRENCE v. SIMMONS, 10 Ky. L. Rep. 347, 9 S. W. 163. 
 
 1 L. R. A. 173, SHERMAN v. MENOMONEE RIVER LUMBER CO. 72 Wis. 
 
 122, 39 N. W. 365. 
 \rliiiciioe of fellow servant. 
 
 Cited in footnote to Stringham v. Stewart, 1 L. R. A. 484, which holds master 
 not liable for injury to servant from breaking of elevator rope through negli- 
 gence of engineer. 
 
 Distinguished in Craven v. Smith, 89 Wis. 125, 61 N. W. 317, holding master 
 not liable for injuries to eleven-year-old employee due to negligence of fellow 
 servant; Porter v. Silver Creek & M. Coal Co. 84 Wis. 425, 54 N. W. 1019, hold- 
 ing injury to carpenter repairing chute due to negligence of coservant dropping 
 cable therein. 
 Who are fellow servants. 
 
 Cited in footnote to Fisher v. Oregon Short Line & U. N. R. Co. 16 L. R. A. 
 519, which holds section foreman a vice principal in duty to warn a conductor 
 of obstruction on track. 
 
 Cited in notes (49 L. R. A. 795) on who are fellow servants; (54 L. R. A. 172) 
 on vice principalship as determined with reference to character of act causing 
 injury. 
 Concnrrent negligence of master and fellow servant. 
 
 Cited in Cowan v. Chicago, M. & St. P. R. Co. 80 Wis. 291, 50 N. W. 180, 
 holding it no defense that coservant contributed to accident resulting from de- 
 fective brake-rod not properly inspected; Deserant v. Cerillos Coal R. Co. 178 
 U. S. 420, 44 L. ed. 1133, 20 Sup. Ct. Rep. 967, holding master's liability for 
 injuries from defective ventilation of mines not relieved by coemployee disre- 
 garding instructions; Cudahy Packing Co. v. Anthes, 54 C. C. A. 506, 117 Fed. 120, 
 holding that coservant's negligence in running elevator does not excuse defect in 
 elevator rope; McClure v. Sparta, 84 Wis. 275, 36 Am. St. Rep. 924, 54 N. W. 
 337, holding city liable though owner did not properly guard hatchway in side- 
 walk; Grant v. Keystone Lumber Co. 119 Wis. 237, 96 N. W. 535, holding mas- 
 ter liable for injury to servant due to defective machinery operated by fellow 
 servant; Herring v. E. I. Du Pont de Nemours Powder Co. 139 Wis. 416, 121 N. 
 W. 170, holding master liable although defect is effective only in conjunction with 
 
1 L.R.A. 173] L. R. A. CASES AS AUTHORITIES. 32 
 
 negligence of fellow servant in failing to adjust an appliance; Tanner v. Harper, 
 32 Colo. 164, 75 Pac. 404, holding master liable where car fell into improperly 
 protected mine shaft though a trammer was also negligent in handling the car; 
 Klaffke v. Bittendorf Axle Co. 125 Iowa, 226, 100 N. W. 1110, holding same 
 as to hydraulic press which was prone to start of itself but where fellow servant 
 also failed to block its mechanism; Trickey v. Clark, 50 Or. 520, 93 Pac. 457, 
 holding same where ungearing lever was equipped with defective block and fel- 
 low servant fell against the lever setting a saw mill in motion. 
 
 Cited in footnote to Noble v. Bessemer S. S. Co. 54 L. R. A. 456, which holds 
 master liable for injury by defective tool procured by fellow servant. 
 
 Cited in notes (7 L. R. A. 503) upon the combined negligence of master and 
 coservant; (16 L. R. A. 821) on proximate cause in its relation to liability of 
 master for combined negligence of master and servant. 
 Master's doty as to machinery. 
 
 Cited in footnotes to Kehler v. Schwenk, 13 L. R. A. 375, which holds dis- 
 cretion in master absolute, to select from various styles of apparatus in use; 
 Louisville, N. A. & C. R. Co. v. Buck, 2 L. R. A. 521, which holds master liable 
 for using car with reach rod to brake beam missing; Pittsburg & L. E. R. Co. 
 v. Henley, 15 L. R. A. 384, which holds railroad might adopt one device for 
 coupling cars without discarding another; Minty v. Union P. R. Co. 4 L. R. A. 
 409, which holds no presumption of master's failure to supply suitable appliances; 
 Lehigh & W. Coal Co. v. Hayes, 5 L. R. A. 441, which holds employer need not fur- 
 nish best possible tools and appliances; Duntley v. Inman, P. & Co. 59 L. R. A. 785, 
 which holds master not liable for death of servant merely because not furvishing 
 better belt shifter. 
 Negligence as question for jury. 
 
 Cited in Maw v. Coast Lumber Co. 19 Idaho, 412, 114 Pac. 9, holding question 
 one for jury, where different opinions might well be entertained upon question 
 where plaintiff must have seen or whether his attention was called to defects 
 in machine. 
 
 1 L. R. A. 176, GREGORY v. ROSENKRANS, 72 Wis. 220, 39 N. W. 378. 
 Title to crops after foreclosure sale of land. 
 
 Cited in Reily v. Carter, 75 Miss. 801, 65 Am. St. Rep. 621, 23 So. 435, holding 
 cotton unsevered before confirmation of sale passed to purchaser. 
 
 Cited in note (7 L. R. A. 279) on mortgagee as purchaser. 
 
 Distinguished in Hayden v. Burkemper, 40 Mo. App. 351, holding annual crop 
 severed after foreclosure, while land still in possession of mortgagor, belongs to 
 purchaser. 
 Property in ice. 
 
 Reaffirmed on second appeal in 78 Wis. 454, 47 N. W. 832, holding mere defi- 
 ciency on foreclosure gives mortgagee purchasing land no lien on ice cut by 
 mortgagor's lessee before foreclosure. 
 
 Cited in footnotes to Mansfield v. Place, 18 L. R. A. 39, which holds prescrip- 
 tive right to all ice on pond acquired by cutting on parts of it; Marsh v. Mc- 
 Nider, 20 L. R. A. 333, holding right to cut ice belongs to tenant of land. 
 
 1 L. R. A. 178, JOCHEM v. ROBINSON, 72 Wis. 199, 39 N. W. 383. 
 Contributory negrligtence. 
 
 Cited in Simonds v. Baraboo, 93 Wis. 44, 57 Am. St. Rep. 895, 67 N. W. 40, 
 holding evidence of custom in loading and hauling wood inadmissible to show 
 contributory negligence; Boyce v. Wilbur Lumber Co. 119 Wis. 647, 97 N. W. 563, 
 
33 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 179 
 
 holding admissible on question of negligence, evidence of servants' custom o'f rid- 
 ing on freight car ladders while switching. 
 
 Cited in note (7 L. R. A. 678) on contributory negligence defeating right of 
 recovery. 
 Local method or custom as test of care. 
 
 Cited in Rice v. Van Why, 49 Colo. 22, 111 Pac. 599, holding general practice 
 of other employees admissible to show want of care as to appliances. 
 
 Distinguished in Rylander v. Laursen, 124 Wis. 5, 102 N. W. 341, holding in 
 a purely tort action negligence of the defendant in the use of appliances in a 
 dangerous business is not to be tested or measured by the usage of others in the 
 same business in a given small locality. 
 Actionable misuse of streets. 
 
 Cited in John A. Tolman & Co. v. Chicago, 240 HI. 275, 24 L.R.A.(N.S.) 102, 
 88 N. E. 488, 16 A. & E. Ann. Gas. 142, holding use of skids is not of itself 
 unlawful or a nuisance. 
 
 Cited in notes (8 L. R. A. 830) on use of streets in cities and towns; (6 L. R. 
 A. 255) on injproper use of street by railroad company; (14 L. R, A. 559) upon 
 obstruction of street or sidewalk for building or business purposes; (24 L.R.A. 
 (N.S.) 99) on temporary obstructions in street for purpose of loading or un- 
 loading. 
 
 1 L. R. A. 179, STATE v. WABASH R. CO. 115 Ind. 466, 17 N. E. 909. 
 Liability of corporation during: receivership or lease. 
 
 Followed in Godfrey v. Ohio & M. R. Co. 116 Ind. 33, 18 N. E. 384, holding that 
 company need not redeem wrong ticket negligently sold during receivership; 
 Memphis & C. R. Co. v. Hoechner, 14 C. C. A. 472, 31 U. S. App. 644, 67 Fed. 
 458, holding company not liable for injury to servant of receiver. 
 
 Cited in Schurr v. Omaha & St. L. R. Co. 98 Iowa, 420, 67 N. W. 280, holding 
 railroad company not liable during receivership for stock killed on track; State 
 v. Pittsburgh, C. C. & St. L. R. Co. 135 Ind. 581, 35 N. E. 700, holding con- 
 solidated company not liable for penalty incurred by lessee of one of the com- 
 panies extinguished by consolidation; State v. Norfolk & S. R. Co. 152 N. C. 787, 
 26 L.R.A. (N.S.) 711, 67 S. E. 42, holding a railroad corporation in the hands 
 of receivers is not indictable for blocking or obstructing street. 
 
 Cited in notes (3 L. R. A. 634; 11 L. R. A. 481) on actions against receivers; 
 (63 L. R. A. 235) on liability of trustee or receiver for torts or negligence of 
 servants; (133 Am. St. Rep. 779) on prosecution and punishment of corporation 
 in hands of receiver. 
 
 1 L. R. A. 179, FLETCHER v. SHARPE, 116 Ind. 317, 17 N. E. 923. 
 
 Followed without special discussion in Indianapolis Bd. of Trade v. Wallace, 
 117 Ind. 599, 18 N. E. 48. 
 l.i- pendena. 
 
 Cited in Warford v. Sullivan, 147 Ind. 18, 46 N. E. 27, holding parties acquir- 
 ing liens pending foreclosure bound by decree as much as parties to suit. 
 Preferences by insolvents. 
 
 Cited in Harshman v. Armstrong, 119 Ind. 225, 21 N. E. 662, holding that 
 client may in good faith prefer attorney who has no lien, over judgment creditor; 
 Studebaker Bros. Mfg. Co. v. Bird, 119 Ind. 429, 21 N. E. 1086, holding that 
 insolvents may in good faith secure one creditor to exclusion of others. 
 By partnership. 
 
 Cited in Purple v. Farrington, 119 Ind. 170, 4 L. R, A. 537, 21 N. E. 543, and 
 L.R.A. Au. Vol. I. 3. 
 
1 L.R.A. 179] L. R. A. CASES AS AUTHORITIES. 
 
 Simmons Hardware Co. v. Thomas, 147 Ind. 318, 46 N. E. 645, holding that in 
 absence of fraud partners may mortgage partnership property to secure individ- 
 ual indebtedness; Elliott v. Pontius, 13C Ind. 647, 35 N. E. 562, holding chattel 
 mortgage to secure repayment of township money used by firm while one partner 
 was township trustee, valid as against other creditors; Re McCoy, 80 C. C. A. 60, 
 150 Fed. 107, holding where members of a firm borrow money on their individual 
 credit for benefit of the firm the lender after having obtained a dividend from 
 firm's assets in bankruptcy may have his claim allowed for the balance due 
 thereon as a claim against the individual partners; American Bonding Co. v. 
 State, 40 Ind. App. 565, 82 N. E. 548, holding a surviving partner may lawfully 
 prefer one or more of the partnership creditors in the settlement of the firm's 
 business. 
 
 Cited in footnote to Re Baldwin, 58 L. R. A. 122, which holds individual lia- 
 bility of partner created by signing certificate of deposit issued by firm, en- 
 forceable against his estate in preference to claims against partnership. 
 
 Cited in notes (29 L.R.A. 682) on assumption by partnership of individual 
 debts of partners; (43 Am. St. Rep. 374), on partner's disposal of property for 
 individual debts. 
 
 Distinguished in Johnson v. McClary, 131 Ind. 106, 30 N. E. 888, holding all 
 partners must consent or ratify to render security good. 
 
 Disapproved in effect in Jackson Bank v. Durfey, 72 Miss. 977, 31 L. R. A. 
 471, 48 Am. St. Rep. 596, 18 So. 456, holding insolvent partners cannot prefer 
 individual to exclusion of partnership creditors. 
 By corporation. 
 
 Applied in First Nat. Bank v. Dovetail Body & Gear Co. 143 Ind. 555, 52 Am. 
 St. Rep. 435, 40 N. E. 810, and Henderson v. Indiana Trust Co. 143 Ind. 566, 
 40 N. E. 516, permitting corporation to prefer debt on which officers individually 
 liable. 
 Assignment of assets by receivers. 
 
 Cited in Denny v. Cole, 22 Wash. 376, 79 Am. St. Rep. 940, 61 Pac. 38, hold- 
 ing receiver necessary party to foreclosure suit against partnership property. 
 
 1 L. R. A. 185, PEEK v. PEEK, 77 Cal. 106, 11 Am. St. Rep. 244, 19 Pac. 227. 
 Oral promise in consideration of marriage. 
 
 Cited in Moore v. Allen, 26 Colo. 200, 77 Am. St. Rep. 255, 57 Pac. 698, holding 
 fraudulent oral promise to convey land taken out of statute by marriage in re- 
 liance thereon; Offult v. Offult, 106 Md. 244, 12 L.R.A.(N.S.) 237, 124 Am. St. 
 Rep. 491, 67 Atl. 138, holding same. 
 
 Cited in note (25 L. R. A. 571) on how far statutes will be regarded as hav- 
 ing abrogated the maxim that one cannot profit by his own wrong. 
 Performance. 
 
 Cited in Hunt v. Hunt, 171 N. Y. 400, 59 L. R. A. 309, 64 N. E. 159, holding 
 marriage not part performance. 
 
 Cited in notes in (3 L.R.A.(N.S.) 814) on taking possession of realty as part 
 performance to satisfy statute of frauds; (12 L.R.A.(N.S.) 234) on specific per- 
 formance of contract to provide for intended husband or wife; (22 Am. St. Rep. 
 777) on specific performance of oral contract of sale. 
 Moral obligation as consideration. 
 
 Cited in Daily v. Minnick, 117 Iowa, 570, 60 L. R. A. 843, 91 N. W. 913, hold- 
 ing naming and bearing of name payment, under agreement to convey land in 
 consideration of being allowed to name child; Fidelity & C. Co. v. Thompson, 
 
35 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 189 
 
 128 Cal. 510, 61 Pac. 94, holding guaranty by widow under gratuitous promise 
 to pay husband's debt not binding. 
 
 Cited in notes (12 L. R. A. 464) on unenforceable voluntary premises; (53 
 L.R.A. 359) on moral obligation as consideration for promise; (6 Eng. Rul. Cas. 
 41) on expense already incurred as consideration for subsequent promise for re- 
 imbursement. 
 Transfer in fraud of creditors. 
 
 Cited in Bush & M. Co. v. Helbing, 134 Cal. 679, 66 Pac. 967, holding that 
 wife, though innocent, cannot retain deed of gift to husband's land in fraud 
 of creditors; Judson v. Lyford, 84 Cal. 508, 24 Pac. 286, holding innocence of 
 grantee of fraudulent conveyance without consideration, immaterial; Merchants' 
 Nat. Bank v. Greenhood, 16 Mont. 458, 41 Pac. 250, holding intent of grantee 
 immaterial. 
 I s- of .statute of frauds to protect fraud. 
 
 Cited in note (25 L.R.A. 571) as to how far statute of frauds will be re- 
 garded as abrogating maxim that one cannot profit by his own wrong. 
 
 1 L. R. A. 187, HALE v. GRAND TRUNK R. CO. 60 Vt. 605, 15 Atl. 300. 
 Liability of railway mail contractors to third parties. 
 
 Cited in Atchison, T. & S. F. R. Co. v. Jandera, 24 Okla. Ill, 24 L.R.A.(N.S.) 
 538, 104 Pac. 339, 20 Ann. Cas. 316, holding it duty of railroad company carrying 
 mail under contract to use reasonable care to keep platform in safe condition 
 to person mailing letter on train. 
 
 Cited in notes (20 L.R.A. 528) as to whom railroads owe duty of keeping 
 station platforms safe; (24 L.R.A.(N.S.) 535) on duty of railroad to person 
 on station grounds to mail letters on train. 
 
 Distinguished in Lawton v. Waite, 103 Wis. 252, 45 L. R. A. 619, 79 N. W. 
 321, holding subcontractor to carry mails not liable to third person under sub- 
 contract. 
 Hail agents as passengers. 
 
 Cited in note (61 Am. St. Rep. 99) on mail agents or postal clerks as passengers. 
 Duty of railroad as to safe passage to cars. 
 
 Cited in Bacon v. Boston & M. R. Co. 83 Vt. 448, 76 Atl. 128, holding that 
 public service commission can compel railroad to move tracks so as to increase 
 platform room at station. 
 Railroad platform as highway. 
 
 Cited in Rudd v. Great Eastern Casualty & Indemnity Co. 114 Minn. 515, 34 
 L.R.A.(N.S.) 1207, 131 N. W. 633, holding railway depot platform a "public high- 
 way" within insurance policy. 
 
 1 L. R. A. 189, ST. JOHNSBURY & L. C. R. CO. v. HUNT, 60 Vt. 588, 6 Am. 
 
 St. Rep. 138, 15 Atl. 186. 
 Stopping train to make arrest. 
 
 Cited in Brunswick & VV. R. Co. v. Ponder (Ga.) 60 L. R. A. 715, 43 S. E. 430, 
 holding carrier not liable to passenger for failing to interfere with officers and 
 prevent illegal arrest; Brunswick & W. R. Co. v. Ponder, 117 Ga. 66, 60 L.R.A. 
 715, 97 Am. St. Rep. 152, 43 S. E. 430, holding the same. 
 
 Cited in note (40 L.R.A. (N.S.) 1075) on liability of carrier for wilful torta 
 of servants to passengers. 
 
1 L.R.A. 191J L. R. A. CASES AS AUTHORITIES. 30 
 
 I L. R. A. 191, MIDDLETOWN v. NEWPORT HOSPITAL, 16 R. I. 319, 15 Atl. 
 
 800. 
 Reformation of Instruments. 
 
 Cited in notes (65 Am. St. Rep. 485, 488, 505) on reformation of contracts; 
 (28 L.R.A.(N.S.) 796) on reformation of instrument for mistake of law as to 
 its effect. 
 What covenants run with the laud. 
 
 Cited in footnotes to Doty v. Chattanooga Union R. Co. 48 L. R. A. 160, hold- 
 ing covenant to run certain trains as chief consideration for right of way, runs 
 with the land; Mott v. Oppenheimer, 17 L. R. A. 409, which construes agreement 
 for party wall, expressly made to run with land, as running with the land. 
 
 Cited in note (82 Am. St. Rep. 667, 671), on what covenants run with the 
 land. 
 Enforcement of contract. 
 
 Cited in footnote to Hodges v. Rowing, 7 L. R. A. 87, which holds suit for 
 specific performance of contract for sale of land cannot be defeated because of 
 remedy at law. 
 
 Cited in notes (3 L.R.A.(N.S.) 99) on enforcement in equity of agreements 
 relating to but not running with land; (126 Am. St. Rep. 374) on liability of 
 grantee on covenants and conditions in deed; (15 Eng. Rul. Cas. 282) on neces- 
 sity of purchaser observing restrictive stipulations known to him. 
 
 Distinguished in Kettle River R, Co. v. Eastern R. Co. 41 Minn. 474, 6 L. R. A. 
 118, 43 N. W. 469, holding agreement for exclusive transportation of products 
 by railway with owner of land over which it was built, not enforceable against 
 lessee of land. 
 Ladies. 
 
 Cited in notes (8 L. R. A. 248) on equitable rule as to laches depending on 
 circumstances; (10 L. R. A. 127) on laches. 
 Notice. 
 
 Cited in Westerly Sav. Bank v. Stillman Mfg. Co. 16 R. I. 500, 17 Atl. 918, 
 holding defective mortgage good between parties valid as to subsequent mortga- 
 gees or purchasers with notice. 
 Hijilii to u-lvc sand, gravel, seaweed, etc. 
 
 Cited in Carr v. Carpenter, 22 R. I. 535, 53 L. R. A. 336, footnote, p. 333, 48 
 Atl. 805, holding littoral proprietor entitled to stranded seaweed. 
 "Validity of restrictions in deed. 
 
 Cited in note (95 Am. St. Rep. 219) on validity of conditions and restrictions 
 in deed. 
 Creation of easements appurtenant. 
 
 Cited in note (136 Am. St. Rep. 693) on creation and conveyance of easements 
 appurtenant. 
 
 1 L. R. A. 198, PARK v. RICHMOND & I. TURNP. CO. 10 Ky. L. Rep. 384, 9 
 S. W. 252, 423. 
 
 1 L. R. A. 199, FIRST NAT. BANK v. BUCHANAN, 87 Tenn. 32, 10 Am. St. Rep.. 
 
 617, 9 S. W. 202. 
 What constitutes payment. 
 
 Cited in Godfrey v. Crisler, 121 Ind. 206, 22 N. E. 999, holding debt not dis- 
 charged by expressly accepting, in ignorance of facts, paper which maker had no 
 capacity to execute; Williams v. Costello, 95 Ala. 593, 11 So. 7, holding mere 
 
37 L. R. A. (ASKS AS AUTHORITIES. [1 L.R.A. 201 
 
 acceptance by creditor from debtor of check on a bank, or the obligation of 
 a third person without more, will not be regarded as other than a conditional 
 payment. 
 
 Cited in note (35 L.R.A. (N.S.) 71, 74) on payment by commercial paper. 
 Discharge of surety. 
 
 Cited in Douglass v. Ferris, 63 Hun, 416, 18 N. Y. Supp. 685, holding guard- 
 ian's sureties not discharged by fraudulent payment in worthless securities; 
 Frederick-Town Sav. Inst. v. Michael, 81 Md. 508, 33 L. R. A. 637, 32 Atl. 189, 
 340 (dissenting opinion), majority holding surety discharged by acceptance of 
 new and valid note secured by mortgage subsequently vacated as illegal prefer- 
 ence. 
 
 Cited in notes (33 L.R.A. 628) on liability of obligors on an original con- 
 tract as affected by a renewal or substituted contract which is void; (13 L.R.A, 
 (N.S.) 205) on payment of note by maker, which proves ineffectual as a satis- 
 faction, as affecting liability of surety; (16 L.R.A. (N.S.) 343) as to whether 
 surety is discharged by obligee's acceptance of new but defective obligation; 
 (28 Am. St. Rep. 692) on what will discharge surety. 
 
 1 L. R. A. 201, THOMPSON v. PECK, 115 Ind. 512, 18 N. E. 16. 
 Prerequisites to snit for goods purchased by fraud. 
 
 Cited in Peninsular Stove Co. v. Ellis, 20 Ind. App. 494, 51 N. E. 105, hold- 
 ing bona fide mortgagee of goods from fraudulent purchaser before disafiirmance, 
 not affected by the fraud; John H. Hibben Dry Goods Co. v. Hicks, 26 Ind. App. 
 649, 59 N. E. 938, holding purchaser of goods on credit obtained by fraudulent 
 statement, absolute owner until disaffirmance ; Citizens' Street R. Co. v. Hor- 
 ton, 18 Ind. App. 339, 48 N. E. 22, holding disaffirmance of voidable contract 
 and restoration of status quo, necessary; W. M. S. Merrill Chemical Co. v. Nick- 
 ells, 66 Mo. App. 690, 2 S. W. 1378, holding fraudulent purchaser not liable in 
 replevin before rescission; Westhafer v. Patterson, 120 Ind. 462, 16 Am. St. Rep, 
 330, 22 N. E. 414, refusing to set aside deed given for land conveyed by deed 
 defectively acknowledged, where no offer was made by plaintiff to reconvey; John 
 H. Hibben Dry Goods Co. v. Hicks, 26 Ind. App. 650, 59 N. E. 938, holding that 
 vendor who accepts and retains after action, note for balance of account, cannot 
 recover in replevin; Pangborn v. Ruemenapp, 74 Mich. 578, 42 N. W. 78, holding 
 fraudulent vendee entitled to tender of purchase money note before replevin; 
 Adam, M. & A. Co. v. Stewart, 157 Ind. 682, 87 Am. St. Rep. 240, 61 N. E. 1002,. 
 holding replevin not maintainable by one induced by fraud to sell on credit with- 
 out paying or tendering the amount received; Mahoney v. Gano, 2 Ind. App. 111,. 
 27 N. E. 315, holding bringing of action for possession of goods wrongfully ob- 
 tained sufficient disaffirmance of voidable contract; Baldwin v. Hutchison, 8- 
 Ind. App. 460, 35 N. E. 711, holding demand not required before suit for money 
 paid in consideration of voidable agreement not to prosecute; Cowen v. Bloom- 
 berg, 66 N. J. L. 386, 49 Atl. 451, holding production on trial in replevin of 
 notes given for goods fraudulently purchased on credit sufficient; Bowden v. 
 Spellman, 59 Ark. 259, 27 S. W. 602, holding offer, on trial, by creditor seeking 
 to set aside sale of goods in fraud of creditors, to return to fraudulent vendee 
 purchase-money notes assigned to him, sufficient. 
 
 Cited in notes (2 L. R. A. 155) on remedy of defrauded seller; (21 L. R. A. 
 206) on necessity of returning consideration before bringing replevin for prop- 
 erty obtained by fraudulent purchase; (14 Am. St. Rep. 724) on rescission of 
 contracts for fraud; (80 Am. St. Rep. 765) as to when replevin or claim and 
 delivery is sustainable. 
 
1 L.R.A. 201] L. R. A. CASES AS AUTHORITIES. 3s 
 
 Distinguished in John V. Farwell Co. v. Hilton, 39 L. R. A. 581, 84 Fed. 294, 
 holding replevin lies without tender of partial payment, if fraudulent purchaser 
 has realized greater amount from sales. 
 What constitutes fraud in purchase on credit. 
 
 Cited in Levi v. Bray, 12 Ind. App. 14, 39 X. E. 754, holding purchaser's knowl- 
 edge of excess of debts over assets not justify setting aside sale of goods in 
 vendee's possession and control; Sweet v. Campbell, 14 Ind. App. 571, 43 N. E. 
 236, holding insolvency of one purchasing on credit without misrepresentation 
 or suppression of facts not authorize vendor to recover possession ; Franklin 
 Sugar Ref. Co. v. Collier, 89 Iowa, 73, 56 N. W. 279, holding order of goods on 
 credit by an insolvent not fraudulent unless coupled with intent not to pay there- 
 for; Vermont Marble Co. v. Smith, 13 Ind. App. 462, 41 N. E. 973, holding 
 firm's failure to disclose existence of individual debts of members not fraud 
 authorizing rescission of sale to firm. 
 
 Cited in note (2 L. R. A. 154) on fraudulent representations of solvency. 
 
 Limited in Hart v. Moulton, 104 Wis. 357, 76 Am. St. Rep. 881, 80 N. W. 599, 
 holding fraudulent purchase actionable without intent not to pay. 
 Presumption of fraud from subsequent mortgage by purchaser. 
 
 Cited in West v. Graff, 23 Ind. App. 415, 55 N. E. 506, holding purchase not 
 presumed fraudulent because of knowledge of insolvency, and subsequent mort- 
 gaging of stock to secure bona fide debts. 
 Title to property purchased by fraud. 
 
 Cited in Kingman-Moore Implement Co. v. Ellis, 125 Mo. App. 702, 103 S. 
 W. 127; Sonnesyn v. Akin, 14 N. D. 268, 104 N. W. 1026, holding until vendor 
 makes his election to rescind the title remains in purchaser. 
 Sufficiency of tender to rescind contract. 
 
 Cited in Opperman v. Citizens' Bank, 44 Ind. App. 403, 85 N. E. 991, holding 
 it unnecessary for wife to return anything to recover stock assigned by her as 
 security for husband; Jarrett v. Caul dwell, 47 Ind. App. 481, 94 X. E. 790, hold- 
 ing that failure to tender return of small part of consideration through mistake 
 defeats right to recover in replevin; Olson v. Brison, 129 Iowa, 606, 106 N. W. 
 14, holding tender at commencement of action of return of consideration suffi- 
 cient. 
 Payment by commercial paper. 
 
 Cited in note (35 L.R.A. (XJ3.) 7) on payment by commercial paper. 
 
 1 L. R. A. 203, RICHARDSON v. EVELAND, 126 111. 37, 18 N. E. 308. 
 Ademptioii of legacy. 
 
 Cited in Tanton v. Keller, 61 111. App. 632, holding legacy given to pay debt 
 of another legatee adeemed by subsequent payment of debt by testator; Davis v. 
 Close, 104 Iowa, 263, 73 N. W. 600, holding legacy of amount to be deducted 
 from notes due testator adeemed by testator's surrender of the notes. 
 
 Cited in footnote to Carmichael v. Lathrop, 32 L. R. A. 232, which holds 
 legacies adeemed pro tanto by conveyance of realty as gift, if so intended. 
 
 Cited in notes (38 L.R.A.(X.S.) 589, 591, 592, 593, 594) on gift by testator 
 as ademption of general legacy to donee; (95 Am. St. Rep. 344, 346, 354) on 
 ademption of legacy; (2 Eng. Rul. Cas. 55) on presumption of ademption of 
 legacy for specific purpose by subsequent gift by testator for same purpose. 
 Parol evidence of testator's intention. 
 
 Cited in Lomax v. Shinn, 162 111. 129, 44 N. E. 495, holding evidence that tes- 
 tators owned no other realty than that mentioned in will admissible to show 
 testator's intention. 
 
39 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 207 
 
 Error In admitting evidence. 
 
 Cited in Cheney v. Beaty, 69 111. App. 403, holding decree in chancery, sup- 
 ported by sufficient competent evidence, not reversible for admission of incom- 
 petent evidence; Re McGee, 5 App. Div. 528, 38 N. Y. Supp. 1062, holding sur- 
 rogate's order, supported by sufficient competent evidence, not reversible for 
 admission of incompetent evidence. 
 Presumptions on appeal. 
 
 Cited in Oliver v. McJJowell, 100 111. App. 49, holding that it will be presumed 
 that chancellor considered only competent evidence. 
 
 1 L. R. A. 207, WABASH, ST. L. & P. R. CO. v. McDOUGALL, 126 111. Ill, 9 
 
 Am. St. Rep. 539, 18 N. E. 291. 
 Authority of attorney. 
 
 Cited in Rubel v. Title Guarantee & T. Co. 199 111. 115, 64 N. E. 1033, hold- 
 ing unauthorized stipulation by attorney for railroad company as to deductions 
 from amount allowed not binding; Chicago General R. Co. v. Murray, 174 111. 
 262, 51 N. E. 245, and Toluca, M. & N. R. Co. v. Haws, 194 111. 95, 62 N. E. 
 312, holding stipulation by counsel as to mode of constructing roadbed properly 
 excluded, where authority to make it not shown. 
 
 Cited in note (132 Am. St. Rep. 156) on implied authority of attorney in con- 
 ducting litigation. 
 Measure of damages in eminent domain; set-off. 
 
 Cited in Illinois C. R. Co. v. Turner, 194 111. 579, 62 N. E. 798, holding as 
 measure of damages to land not taken difference in market value before and 
 after construction of road; Metropolitan West Side Elev. R. Co. v. Stickney, 150 
 111. 379, 26 L. R. A. 777, 37 N. E. 1098, holding as measure of damages to land 
 not taken for railroad the difference in value before and after the construction 
 of the road after allowing for benefits therefrom; Chicago & M. Electric R. Co. 
 v. Mawman, 206 111. 183, 69 N. E. 66, holding danger to owner of land from rail- 
 road not an element of damage in condemnation; Osgood v. Chicago, 154 111. 198, 
 41 N. E. 40, Affirming 44 111. App. 534, allowing benefits to be set off against 
 damages to abutting property from construction of bridge and its approaches; 
 Indianapolis & C. Traction Co. v. Larrabee, 168 Ind. 241, 10 L.R.A.(N.S.) 1007, 
 80 N. E. 413, 11 A. & E. Ann. Cas. 695, holding the value of the right of way 
 with the incidental damages naturally arising from the proper construction 
 and use of the railroad, but not the danger to occupant nor his stock on the 
 farm are elements of damages in a proceeding to condemn a right of way. 
 
 Cited in note (9 L.R.A.(X.S.) 816) on right to set off benefits against damages 
 on condemnation. 
 Effect on award of change of plan. 
 
 Cited in Chicago & W. I. R. Co. v. Cogswell, 44 111. App. 399, allowing addi- 
 tional damages resulting from change of plan for constructing railroad; Maltman 
 v. Chicago, M. & St. P. R. Co. 41 111. App. 235, holding further damages recov- 
 erable by abutting owners on laying of additional railroad tracks in street. 
 
 Distinguished in Kotz v. Illinois C. R. Co. 188 111. 583, 59 N. E. 240, holding 
 abutting owner not entitled to further damages on elevation of railroad track. 
 Giving data for estimating benefits. 
 
 Cited in Washington Ice Co. v. Chicago. 147 111. 334, 37 Am. St. Rep. 222, 35 
 N. E. 378, requiring data from which estimate of benefits from opening street 
 can be made, to be furnished in some manner. 
 Effect of withdrawal of objection to evidence. 
 
 Cited in Wilkinson v. Service, 249 111. 152, 94 N. E. 50, Ann. Cas. 1912 A, 41, 
 
1 L.R.A. 207] L. R. A. CASES AS AUTHORITIES. 40 
 
 holding exclusion of evidence not error, where objection is withdrawn while 
 witness is in court room. 
 
 1 L. R. A. 211, BUTLER v. PEOPLE, 125 111. 641, 8 Am. St. Rep. 423, 18 N. E. 
 338. 
 
 Cited in Wohlford v. People, 45 111. App. 191, as having been read to jury. 
 Criminal liability for act of another. 
 
 Cited in Taylor v. State, 41 Tex. Crim. Rep. 571, 55 S. W. 961, holding train 
 robbers responsible for death of fireman taken by them to place of danger, where 
 killed in exchange of shots between themselves and passenger; Com. v. Moore, 
 121 Ky. 101, 2 L.R.A.(N.S.) 721, 123 Am. St. Rep. 189, 88 S. W. 1085, 11 A. 
 & E. Ann. Cas. 1024, holding in order that one may be guilty of homicide he 
 must do the act or it must be done by some one acting in concert with him. 
 
 Cited in note (68 L.R.A. 193, 201, 203, 208, 209, 212, 214) on homicide in 
 carrying out unlawful conspiracy. 
 Homicide by killing: of person not intended. 
 
 Cited in notes (63 L. R. A. 660, 662) on homicide by unlawful act aimed at 
 another than the one killed; (2 L.R.A. (N.S.) 719) on accidental killing of by- 
 stander by shooting in self-defense; (16 Am. St. Rep. 20) on homicide by killing 
 person by mistake; (90 Am. St. Rep. 577) on unintentional homicide in com- 
 mission of unlawful act. 
 Principal and accessory. 
 
 Cited in note (13 L. R. A. 196) on all aiders and abettors being principals. 
 Statutes defining: homicide. 
 
 Cited in People v. Davis, 1 111. C. C. 232, as recognizing common law defini- 
 tions of murder under the statutes. 
 
 1 L. R. A. 213, ILLINOIS C. R. CO. v. HOUGHTON, 126 111. 233, 9 Am. St. Rep. 
 
 581, 18 N. E. 301. 
 Oral declarations as to possession. 
 
 Cited in Knight v. Knight, 178 111. 557, 53 N. E. 306, holding admissible as 
 res gestce oral declarations of ownership by one in possession. 
 Nature of company's estate in right of way. 
 
 Cited in Walker v. Illinois C. R. Co. 215 111. 616, 74 N. E. 812. holding easement 
 in right of way absolute for purporse for which acquired. 
 
 Cited in footnotes to Gurney v. Minneapolis Union Elevator Co. 30 L. R. A. 
 534, which holds railroad company entitled to erect warehouse on land con- 
 demned; Kyle v. Texas & N. O. R. Co. 4 L. R. A. 276, which holds owner not 
 estopped to deny railroad company's right to condemn land by permitting it to 
 use same; Narron v. Wilmington & \V. R. Co. 40 L. R. A. 415, which holds that 
 railroad company cannot acquire easement by occupation in land taken by right 
 of eminent domain; Gulf, C. & S. F. R. Co. v. Smith, 2 L. R, A. 281, which holds 
 covenant running with land not created by deed stipulating for maintenance of 
 fence by railroad company; Peden v. Chicago, R. I. & P. R. Co. 4 L. R. A. 401, 
 which holds company liable for breach of covenant as to flow of water; Flick- 
 inger v. Shaw, 11 L. R. A. 134, which holds vested right of way acquired by 
 construction of irrigation ditch under parol agreement; Snell v. Levitt, 1 L. R. 
 A. 414, as to how easements may be lost. 
 
 Cited in notes (10 L. R. A. 484) on right by prescription to use of lands of 
 another; (8 L. R. A. 618) on rights of parties in easements; (8 L. R. A. 575) on 
 easement to flowage of water; (8 L. R. A. 472) on right of owner of soil to use 
 of highway; (18 L. R. A. 540) on effect of nonuser of easement. 
 
41 L. R. A. GASES AS AUTHORITIES. [1 L.R.A. 213 
 
 Acquisition of title to right of way by adverse posension. 
 
 Cited in Pittsburgh, C. C. & St. L. R. Co. v. Stickley, 155 Ind. 316, 58 N. E. 
 192, holding railroad not a public highway so as to prevent acquiring title to 
 right of way by adverse possession; Illinois C. R. Co. v. O'Connor, 154 111. 556, 
 39 N. E. 563, and Illinois C. R. Co. v. Moore, 160 111. 16, 43 N. E. 364, holding 
 company's estate in right of way subject to adverse possession; Northern P. R. 
 Co. v. Ely, 25 Wash. 395, 54 L. R. A. 532, 87 Am. St. Rep. 766, 60 Pac. 555, and 
 Northern P. R. Co. v. Hasse, 28 Wash. 358, 92 Am. St. Rep. 840, 68 Pac. 882, 
 holding that title to land granted by Congress as right of way may be acquired 
 by adverse possession; Northern P. R. Co. v. Ely, 25 Wash. 395, 54 L. R. A. 532, 
 87 Am. St. Rep. 766, 65 Pac. 555, holding that railroad company cannot defeat 
 title of settlers acquired by adverse possession, on ground that right of way 
 granted for public purposes; St. Louis & S. F. R. Co. v. Ruttan, 90 Ark. 180, 118 
 S. W. 705, holding statute of limitations operates against railroad corporations 
 whose lands are held adversely as well as against individuals; Chicago, B. & 
 Q. R. -Co. v. Abbott, 215 111. 426, 74 N. E. 412, holding possession by railroad 
 company of strip of land fenced in by it as its right of way does not carry with 
 it possession of strip of land outside of fences and indorsed by adjoining owner 
 and held by him under claim of right for twenty years. 
 
 Cited in footnote to Southern P. R. Co. v. Hyatt, 54 L. R. A. 522, which holds 
 that title to right of way cannot be acquired by adverse possession. 
 
 Cited in notes (4 L.R.A. 646) on adverse possession in case of easements and 
 servitudes; (87 Am. St. Rep. 781) on right to acquire title by adverse posses- 
 sion to lands held by railroad. 
 Sufficiency of adverse possession. 
 
 Cited in Glencoe v. Wadsworth, 48 Minn. 403, 51 N. W. 377, holding tortious 
 entry on land without color of title may ripen into title; Knight v. Knight, 178 
 111. 559, 53 N. E. 306, holding possession of grantor may become adverse without 
 formal disclaimer of title conveyed by deed. 
 
 Cited in notes (6 L. R. A. 833) on sufficiency of occupation to constitute ad- 
 verse possession; (13 L.R.A. 207) on sufficiency of adverse possession; (15 L.R.A. 
 (N.S.) 1189, 1192, 1196, 1208, 3211, 1229) on necessity of color of title, not ex- 
 pressly made a condition by statute, in adverse possession; (11 Am. St. Rep. 
 307) on adverse possession defeating right of action of holder of legal title; 
 (11 Am. St. Rep. 342) on adverse possession. 
 Of rig-lit of way. 
 
 Approved in Illinois C. R. Co. v. O'Connor, 154 111. 555, 39 N. E. 563, holding 
 title to right of way acquired by inclosing with farm lands and cultivating and 
 pasturing for over twenty years; Illinois C. R. Co. v. Moore, 160 111. 16, 43 N. 
 E. 364, and Illinois C. R. Co. v. Wakefield, 173 111. 569, 50 N. E. 1002, holding 
 title to part of right of way outside of fence constructed by railroad company 
 acquired by adverse possession for twenty years. 
 
 Cited in Wilmot v. Yazoo & M. Valley R. Co. 76 Miss. 386, 24 So. 701, holding 
 manifestation of adverse possession , of right of way by hostile acts necessary; 
 Chicago & N. W. R. Co. v. Gait, 133 111. 671, 23 N. E. 425, holding title by ad- 
 verse possession not acquired by mere acts of trespass on vacant and uninclosed 
 lands; Vicksburg & M. R. Co. v. Barrett, 67 Miss. 588, 7 So. 549, holding rail- 
 road company, to which right of way "not to exceed 100 feet" conveyed, bound 
 by failure to object to grantor's fixing at less width; Ohio River R. Co. v. John- 
 son, 50 W. Va. 508, 40 S. E. 407, holding adverse possession of land not conveyed 
 confined to land actually occupied. 
 
 Cited in footnote to Atchison, T. & S. R. Co. v. Conlon, 53 L. R, A. 781, which 
 
1 L.R.A. 213] L. R. A. CASES AS AUTHORITIES. 42 
 
 holds prescriptive right to use gates and farm crossing not acquired by use un- 
 der license from company. 
 
 Cited in notes (1 L.R.A.(N.S.) 566) on inclosure of right of way as adverse 
 possession; (2 L.R.A.(X.S.) 273) on adverse possession of railroad right of way. 
 Effect of adverse possession on private easement. 
 
 Cited in Swedish Evangelist Lutheran Church v. Jackson, 229 111. 511, 82 N. 
 E. 348, holding twenty years uninterrupted possession bars private easement. 
 
 1 L. R. A. 216, SMITH v. NIAGARA F. INS. CO. 60 Vt. 682, 6 Am. St. Rep. 144, 
 
 15 Atl. 353. 
 Error as to unanswered question. 
 
 Cited in Houston v. Brush, 66 Vt. 340, 29 Atl. 380, holding unanswered ques- 
 tion not error; State v. Burpee, 65 Vt. 5, 19 L. R. A. 148, 36 Am. St. Rep. 775, 
 25 Atl. 964, and State v. Fitzgerald, 72 Vt. 144, 47 Atl. 403, holding improper 
 question unanswered, immaterial; Fuller v. Valiquette, 70 Vt. 503, 41 Atl. 579, 
 and Carpenter v. Willey, 65 Vt. 176, 26 Atl. 488, holding necessary, offer to show 
 what answer to excluded question would be; State v. Clifford, 59 W. Va. 32, 
 52 S. E. 981, holding a refusal of the court to permit a witness to answer was 
 net available as error where the expected answer was not disclosed to court at 
 time of ruling. 
 Presumption of payment of mortgagee. 
 
 Cited in Crahan v. Chittenden, 82 Vt. 415, 74 Atl. 86, holding mortgagee lost 
 his right of entry on condition broken where mortgagor continued in possession 
 with no acknowledgment of the existence of the indebtedness for over fifteen 
 years. 
 
 Cited in note (18 Am. St. Rep. 881) on presumption of payment from lapse 
 of time. 
 Lien on insured property. 
 
 Cited in German-American Ins. Co. v. Humphrey, 62 Ark. 350, 54 Am. St. Rep. 
 297, 35 S. W. 428, holding record of satisfaction of mortgage not essential to its 
 removal as encumbrance; Continental Ins. Co. v. Vanlue, 126 Ind. 413, 10 L. R. 
 A. 845, 26 N. E. 119, holding lien of judgment ceased on payment without entry 
 of satisfaction; Raulet v. Northwestern Nat. Ins. Ce. 157 Cal. 220, 107 Pac. 292 r 
 holding that chattel mortgage as security for rent does not avoid policy pro- 
 viding for avoidance if property is encumbered with chattel mortgage; Rowland 
 v. Home Ins. Co. 82 Kan. 221, 108 Pac. 118, holding a mortgage to secure a note 
 payable more than a year from date under a lease not to commence until a 
 certain time in the future is not an encumbrance where the insured property i& 
 destroyed before the commencement of the term. 
 
 Cited in footnote to Nussbaum v. Northern Ins. Co. 1 L. R. A. 704, which 
 holds deed to secure debt with reservation of balance and right to redeem not 
 alienation avoiding policy. 
 
 Cited in note (8 L. R, A. 74) upon breach of condition as to encumbrance in 
 policy. 
 Effect of warranty. 
 
 Cited in footnote to Globe Mut. L. Ins. Asso. v. Wagner, 52 L. R. A. 649, which 
 holds that false statement that none of applicant's brothers are dead will not 
 avoid policy unless known to be false. 
 
 Cited in notes (6 Eng. Rul. Gas. 833) on avoidance of insurance contract for 
 false representation of material fact; (13 Eng. Rul. Cas. 546) on effect of war- 
 ranties by insured. 
 
43 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 216 
 
 Imputing agent's knowledge to principal. 
 
 Annotation cited in Collins v. Metropolitan L. Ins. Co. 32 Mont. 343, 108 Am. 
 St. Rep. 578, 80 Pac. 609, on knowledge of agent as not imputable to principal 
 where person dealing with agent knows he is acting beyond the scope of his 
 authority. 
 
 Cited in footnotes to Follett v. United States Mut. Acci. Asso. 15 L. R. A. 
 668, which holds knowledge by agent of applicant's deafness imputed to company 
 so as to prevent forfeiture; Wheeler v. McGuire, 2 L. R. A. 809, which holds 
 knowledge of agent must have been acquired after relation formed; Birmingham 
 Trust & Sav. Co. v. Louisiana Nat. Bank, 20 L. R. A. 600, which holds corpo- 
 ration chargeable with notice of fact known to agent in prior transaction within 
 scope of authority. 
 
 Cited in notes (2 L. R. A. 735) on knowledge of agent is knowledge of princi- 
 pal ; ( 1 L. R. A. 563 ) on imputing agent's knowledge to principal. 
 Waiver. 
 
 Cited in notes (1 L. R. A. 222) on waiver of terms and conditions of insurance 
 policy; (10 L.R.A. 828) on construction of building contract as to waiver; 
 (9 Am. St. Rep. 234) on waivers by insurance agents; (107 Am. St. Rep. 102) 
 on waiver of provisions of non-waiver or written waiver of conditions and for- 
 feitures in policies. 
 
 Authority of agent in absence of provision for indorsing: waiver on 
 policy. 
 
 Cited in Merchants' Ins. Co. v. New Mexico Lumber Co. 10 Colo. App. 238, 51 
 Pac. 174, holding local agent without power to waive forfeiture or breach of 
 warranty after loss; Traders Ins. Co. v. Cassell, 24 Ind. App. 244, 56 N. E. 
 259, holding authority for agent to issue policy not authorize adjustment of 
 loss; Barry & F. Lumber Co. v. Citizens' Ins. Co. 136 Mich. 48, 98 N. W. 761, 
 holding the statements and acts of a local agent were not receivable to show 
 his authority to waive provisions of the policy relating to commencement of 
 actions. 
 
 Cited in footnotes to State Ins. Co. v. Schreck, 6 L. R. A. 524, which holds 
 reformation of policy misdescribing location of property unnecessary when mis- 
 take that of agent; Wainer v. Milford Mut. F. Ins. Co. 11 L. R, A. 599, which 
 holds provision for referring amount of loss waived by absolute denial of lia- 
 bility; Richard v. Springfield F. & M. Ins. Co. 69 L.R.A. 278, which holds that 
 insurance agent having power to issue and renew policies and grant permits 
 or privileges has apparent power to waive prior to loss breach of iron safe clause. 
 To waive proofs of loss. 
 
 Cited in Ruthven Bros. v. American F. Ins. Co. 92 Iowa, 323, 60 N. W. 663, 
 and Ermentrout v. Girard F. & M. Ins. Co. 63 Minn. 310, 30 L. R. A. 349, 56 
 Am. St. Rep. 485, 65 N. W. 635, holding agent for issuing and countersigning 
 policies and collecting premiums could not waive notice of loss; McCollum v. 
 North British & M. Ins. Co. 65 Mo. App. 309, holding statements of agent with- 
 out authority to settle loss, and made subsequent thereto, not admissible as 
 evidence of waiver of proofs; McCollum v. Liverpool, L. & G. Ins. Co. 67 Mo. 
 App. 70, raising, without deciding, question whether agent to solicit, issue, and 
 cancel policies could waive proofs of loss; McCollum v. Liverpool, L. & G. Ins. 
 Co. 67 Mo. App. 69, holding adjuster could waive proof of loss; Travelers' Ins. 
 Co. v. Myers, 62 Ohio St. 541, 49 L. R. A. 764, 57 N. E. 458, holding unauthorized 
 agent could not waive written notice of accident and information relating 
 thereto. 
 
1 L.R.A. 216] L. R. A. CASES AS AUTHORITIES. 44 
 
 Cited in footnote to Steele v. German Ins. Co. 18 L. R. A. 85, which holds pol- 
 icy not avoided by failure to furnish proof of loss within time specified. 
 
 Cited in notes (7 L. R. A. 81'; 8 L. R. A. 77) upon waiver of proofs of loss; 
 <8 L. R. A. 76) upon waiver of notice and statement of loss in fire insurance. 
 
 Disapproved in Nickell v. Phoenix Ins. Co. 144 Mo. 425, 46 S. W. 435, holding 
 local agent could waive proof of loss and estop company. 
 Authority of other than insurance agent. 
 
 Cited in Frost v. North British & M. Ins. Co. 77 Vt. 412, 60 Atl. 803, on the 
 powers of an agent as being prima facie co-extensive with the business intrusted 
 to his care. 
 
 Cited in footnote to Fay v. Slaughter, 56 L. R. A. 564, which holds authority 
 to indorse checks for deposit not authority to ratify checks with forged transfers 
 on them. 
 Effect of requiring; -waiver to he indorsed on policy. 
 
 Cited in Parker v. Rochester German Ins. Co. 162 Mass. 482, 39 N. E. 179, 
 holding agent with limited powers could not orally consent to removal of prop- 
 erty insured; Liverpool, L. & G. ins. Co. v. T. M. Richardson Lumber Co. 11 
 Okla. 611, 69 Pac. 938, denying validity of waiver not shown to have been made 
 by agent with express authority; Egan v. Westchester Ins. Co. 28 Or. 296, 42 
 Pac. 611, denying general agent's power to orally consent to chattel mortgage. 
 Authority to waive proofs of loss. 
 
 Cited in Ruthven Bros. v. American F. Ins. Co. 92 Iowa, 327, 60 N. W. 663, 
 holding that adjuster could not orally waive proof of loss; St. Paul F. & M. Ins. 
 Co. v. Mountain Park Stock Farm Co. 23 Okla. 82, 99 Pac. 647, holding a 
 condition of policy requiring proof of loss to be made within a specific time is 
 waived where notice of the loss being given the adjuster acting on instructions 
 from general agent agrees on the amount of loss. 
 
 Distinguished in Powers v. New England F. Ins. Co. 68 Vt. 395, 35 Atl. 331, 
 holding promise by company to send adjuster, waiver of requirement of proof of 
 loss; Washburn-Halligan Coffee Co. v. Merchants' Brick Mut. F. Ins. Co. 110 
 Iowa, 426, 80 Am. St. Rep. 311, 81 N. W. 707, holding secretary of insurance 
 company authorized to waive proof of loss without indorsement. 
 
 Disapproved in Nickell v. Phoenix Ins. Co. 144 Mo. 425, 46 S. W. 435, where 
 the statement is made that by almost universally recognized doctrine the con- 
 dition may be waived orally. 
 Authority to waive condition as to other insurance. 
 
 Cited in Northern Assur. Co. v. Grand View Bldg. Asso. 183 U. S. 323, 46 L. 
 d. 220, 22 Sup. Ct. Rep. 133, Reversing 41 C. C. A. 214, 101 Fed. 84, holding 
 acceptance of premium did not waive condition for written assent to additional 
 insurance, unknown to company though known to agent upon delivery of policy; 
 O'Leary v. Merchants' & B. Mut. Ins. Co. 100 Iowa, 176, 62 Am. St. Rep. 555, 
 6 N. W. 175, holding consent to additional insurance not waived by written 
 consent of secretary by letter, without indorsement on policy. 
 
 Criticized in Burnham v. Greenwich Ins. Co. 63 Mo. App. 90, holding assent to 
 further insurance might be waived orally, notwithstanding condition of policy. 
 Validity of stipulations in policy. 
 
 Cited in Atlas Reduction Co. v. New Zealand Ins. Co. 9 L.R.A.(N.S-) 435, 71 
 C. C. A. 21, 138 Fed. 500, on stipulations in policy as to conditions on which 
 contract may be terminated as not being open to question. 
 
45 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 222 
 
 1 L. R. A. 222, LAMBERTON v. CONNECTICUT F. INS. CO. 39 Minn. 129, 
 
 39 N. W. 76. 
 
 Provision in policy against waiver by officer or representative -without 
 indorsement. 
 
 Cited in Burdick v. Security Life Asso. 77 Mo. App. 635, holding general 
 manager with secret limitation on authority could waive breach of warranties 
 in application; Harrison v. Russell, 12 Idaho, 633, 87 Pac. 784, holding that 
 company cannot be prevented from waiving provision that no promises, whether 
 of agent, employee, or attorney, shall be binding, unless made in writing; Andrus 
 v. Maryland Casualty Co. 91 Minn. 363, 98 N. W. 200, holding provisions de- 
 signed to disable agents to receive notice of material facts when issuing policy 
 void; London Guarantee & Acci. Co. v. Mississippi C. R. Co. 97 Miss. 177, 52 So. 
 787, holding that stipulation in policy that its terms cannot be waived by parol 
 by any agent or officer is ineffectual. 
 
 Cited in footnote to Richard v. Springfield F. & M. Ins. Co. 69 L.R.A. 278, 
 which holds that insurance agent having power to issue and renew policies and 
 grant permits or privileges has apparent power to waive prior to loss breach 
 of iron safe clause. 
 
 Cited in notes (8 L.R.A. 73) upon acts of agent binding insurance company; 
 (10 L.R.A. (N.S.) 1075, 1088) on oral waiver or estoppel as to forfeitures after 
 issuance of policy and before loss, under policies requiring written consent or 
 waiver; (9 Am. St. Rep. 235, 236) on waivers by insurance agents; (17 Am. 
 St. Rep. 248) on waiver of conditions in insurance policies; (107 Am. St. Rep. 
 101, 102) on waiver of provisions of non-waiver or written waiver of conditions 
 and forfeitures in policies. 
 As to increase of risk and excepted articles. 
 
 Cited in Mackintosh v. Agricultural F. Ins. Co. 150 Cal. 448, 119 Am. St. Rep. 
 234, 89 Pac. 102, holding general agent could orally waive provision in fire 
 insurance policy as to increase of hazard; German American Ins. Co. v. Hyman, 
 42 Colo. 168, 16 L.R.A. (N.S.) 82, 94 Pac. 27, holding same as to provision as 
 to use of gasoline on premises. 
 As to proofs of loss. 
 
 Cited in Renier v. Dwelling House Ins. Co. 74 Wis. 98, 42 N. W. 208, holding 
 general agent could orally waive proofs of loss; Ruthven Bros. v. American F. Ins. 
 Co. 102 Iowa, 558, 71 N. W. 574, holding adjuster might orally waive proofs of 
 loss: Phenix Ins. Co. v. Munger, 49 Kan. 195, 33 Am. St. Rep. 360, 30 Pac. 120, 
 holding condition in policy forbidding changes by agents, except upon written 
 authority, too sweeping. 
 As to other insurance. 
 
 Cited in Anderson v. Manchester F. Assur. Co. 59 Minn. 195, 28 L. R. A. 612, 
 50 Am. St. Rep. 400, 63 N. W. 241, Reversing on rehearing 59 Minn. 188, 28 
 L. R. A. 609, 60 N. W. 1095. holding delivery of policy with knowledge of other 
 insurance waiver of provision avoiding policy unless consent indorsed thereon; 
 McElroy v. British American Assur. Co. 36 C. C. A. 623, 94 Fed. 998, holding 
 knowledge of solicitor procuring insurance of intention of applicant to effect 
 other insurance estopped company; Kahn v. Traders Ins. Co. 4 Wyo. 464, 62 Am. 
 St. Rep. 47, 34 Pac. 1059, holding local agent's oral consent to additional insur- 
 ance on delivering policy estopped company; Burnham v. Greenwich Ins. Co. 63 
 Mo. App. 88, Reaffirming on second appeal 56 Mo. App. 590, holding local agent 
 could orally waive condition as to further insurance; Eagle Fire Co. v. Lewallen, 
 56 Fla. 254, 47 So. 947, holding local agent could waive condition against other 
 insurance by promising to endorse the consent of the oompany on the policy. 
 
1 L.R.A. 222] L. E. A. CASES AS AUTHORITIES. 46 
 
 As to ownership, alienation, and encumbrances. 
 
 Cited in Home Ins. Co. v. Gibson, 72 Miss. G4, 17 So. 13, holding local agent 
 could waive sole ownership of property; St. Paul F. & M. Ins. Co. v. Parsons, 
 47 Minn. 356, 50 N. W. 240, holding agent could orally waive transfer of title 
 and sale on mortgage foreclosure; German Ins. Co. v. Gray, 43 Kan. 506, 8 L. 
 R. A. 77, 19 Am. St. Rep. 150, 23 Pac. 637, holding general agent could orally 
 waive provision respecting encumbrances; McElroy v. British America Assur. Co. 
 36 C. C. A. 623, 94 Fed. 998, holding knowledge by agent of encumbrance by 
 applicant estopped company; Bosworth v. Merchants' F. Ins. Co. 80 Wis. 396, 
 49 N. W. 750, holding oral consent by agent procuring insurance, to additional 
 encumbrance, a waiver of condition; Allen v. Phoenix Assur. Co. 14 Idaho, 742, 
 95 Pac. 829, holding provisions as to ownership in fee and in regard to incum- 
 brances may be orally waived by solicitor of insurance. 
 As to premiums. 
 
 Cited in Wilkins v. State Ins. Co. 43 Minn. 178, 45 N. W. 1, holding waiver by 
 local agent of immediate payment of premium not prevented by condition against 
 waiver without indorsement on policy; Farnum v. Phoenix Ins. Co. 83 Cal. 261, 
 17 Am. St. Rep. 233, 23 Pac. 869, holding immediate payment of premium might be 
 waived by agent empowered to issue policy; German Ins. Co. v. Shader, 68 Xeb. 5, 
 
 60 L.R.A. 920, 93 N. W. 972, holding condition in policy as to payment of pre- 
 mium waived by extension of time by agent, company treating policy as in force; 
 JEtna L. Ins. Co. v. Fallow, 110 Tenn. 736, 77 S. W. 937, holding general agent 
 could orally waive provision in accident policy as to payment of premium; 
 Penn Mut. L. Ins. Co. v. Xorcross, 163 Ind. 387, 72 N. E. 132, holding life in- 
 surance agent whose authority to bind corporation was presumed from the plead- 
 ings empowered to waive requirement of prepayment of first premium; Leland 
 v. Samaritans, 111 Minn. 213, 126 X. W. 728, holding that subordinate council of 
 fraternal benefit society can waive strict compliance with by-law requiring 
 prompt payment of dues; Collins v. Metropolitan L. Ins. Co. 32 Mont. 343, 108 
 Am. St. Rep. 578, 80 Pac. 609, holding that local agent cannot waive for- 
 feiture of policy for nonpayment of premium. 
 
 Waiver of conditions in other than insurance contracts. 
 
 Cited in Nichols & S. Co. v. \Yiedemann, 72 Minn. 347, 75 N. W. 208, and 
 Baker v. Nichols & S. Co. 10 Okla. 691, 65 Pac. 100, holding provision in con- 
 tract of sale against any agent changing warranty cannot prevent waiver of 
 requirement for written notice of breach; Massachusetts Loan & T. Co. v. Welch, 
 47 Minn. 186, 49 N. W. 740, holding company might waive conditions in contract 
 of sale as to time for returning on breach of warranty; Michaud v. MacGregor, 
 
 61 Minn. 203, 63 N. W. 479, authorizing recovery for additional work without 
 order from architect, although original contract provided otherwise. 
 
 Life insurance. 
 
 Cited in note (10 L. R. A. 669) on representations in application for life 
 insurance. 
 Sufficiency of agent's acts to waive forfeiture. 
 
 Cited in Farmers' Mut. F. Ins. Co. v. Jackman, 35 Ind. App. 17, 73 N. E. 
 730, holding slight acts sufficient where condition is in favor of company. 
 
 1 L. R. A. 224, BARBER v. BEXXETT, 60 Vt. 662, 6 Am. St. Rep. 141, 15 
 
 Atl. 348. 
 Admissions of real party. 
 
 Cited in Brown v. Brown. 62 Kan. 673, 64 Pac. 599, holding admissions of real 
 party in interest admissible against nominal party; Binewicz v. Haglin, 103 
 
47 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 229 
 
 Minn. 299, 15 L.R.A.(N.S.) 1098, 115 N. W. 271, 14 A. A E. Ann. Gas. 225, 
 on the admissibility of admissions against interest. 
 
 1 L. R. A. 225, COM. ex rel. ATTY. GEN. v. SUSQUEHANNA & D. RIVER R. 
 
 CO. 122 Pa. 306, 15 Atl. 448. 
 Remedies on default In corporate mortgage bonds. 
 
 Cited in Ritter v. Conshohocken R. Co. 18 Montg. Co. L. Rep. 621, and Western 
 Pennsylvania Hospital v. Mercantile Library Hall Co. 189 Pa. 272, 43 W. N. C. 
 341, 42 Atl. 183, denying right of individual bondholder to execution against 
 specific property mortgaged to trustee for all bondholders; Woodbury v. Allegheny 
 & K. R. Co. 72 Fed. 374, holding bondholder's "action in Pennsylvania, where 
 trustee refused to sue because of New York injunction; Roberts v. Denver, L. & 
 G. R. Co. 8 Colo. App. 513, 46 Pac. 880, holding bondholders must proceed through 
 trustee only, and adopt remedies security provides; Guilford v. Minneapolis, 
 S. Ste. M. & A. R. Co. 48 Minn. 575, 31 Am. St. Rep. 694, 51 N. W. 658, holding 
 general recital in bond insufficient notice of qualifying conditions of trust deed; 
 Guest v. Lower Merion Water Co. 142 Pa. 613, 28 W. N. C. 285, 12 L. R. A. 324, 
 21 Atl. 1001, holding return of nulla bona condition precedent to issuance of 
 sequestration writ for corporate property; Ritter v. Conshohocken R. Co. 11 Pa. 
 Dist. R. 704, holding holder of part of an issue of railroad bonds secured by a 
 mortgage to a trustee for all bondholders cannot proceed against the mortgaged 
 property except through a trustee; Ault & W. Co. v. Republic Bank Xote Co. 
 58 Pittsb. L. J. 178, holding that provision in mortgage that bondholder cannot 
 foreclose without request of majority of bondholders upon trustee does not de- 
 prive individual bondholder of his common-law action on his bond; Baker v. 
 Consumers' Box Board & Paper Co. 20 Pa. Dist. R. 901, 28 Lane. L. Rev. 175, 
 holding that individual bondholder can enforce his bond, though mortgage 
 provides for action by trustee; Baker v. Consumers' Box Board & Paper Co. 
 28 Lane. L. Rev. 297, holding that individual bondholder can take in execution 
 property not covered by the mortgage. 
 Action on bonds \\ ln-n interest is in default. 
 
 Distinguished in Stephenson v. Dodson, 15 Pa. Dist. R. 773, 10 North Co. Rep. 
 202, holding action predicated on obligation of bonds could not be sustained on 
 default of interest coupons. 
 Title of trustees in corporate mortgage. 
 
 Cited in Re Keystone Coal Co. 225 Pa. 245, 74 Atl. 64, holding trustee in 
 corporate mortgage is the mere repository of title in trust for the creditors 
 secured. 
 
 Cited in note (16 L.R.A. (N.S. ) 1014) on representation of bondholders by 
 mortgage trustee. 
 I. i-iiii Me corporate property. 
 
 Cited in Vulcanite Paving Co. v. Philadelphia Rapid Transit Co. 220 Pa. 606, 
 17 L.R.A.(X.S.) 885, 69 Atl. 1117, holding the power house of an electric street 
 railway is not subject to a mechanic's lien. 
 
 1 L. R. A. 229, HOFFMAN v. HOKE, 122 Pa. 377, 15 Atl. 437. 
 Assignment or gift of insnrance. 
 
 Cited in Kessler v. Kuhns, 1 Ind. App. 517, 27 N. E. 980, holding assignment 
 by beneficiary with insurable interest, to creditors without such interest, void; 
 Quinn v. Supreme Council, C. K. of A. 09 Tenn. 84, 41 S. W. 343, holding policy 
 bought and kept up by assignee without interest, void; Doherty's Estate, 14 Pa. 
 Dist. R. 80, holding an assignment of a policy of life insurance by one indebted 
 
1 L.R.A. 229] L. R. A. CASES AS AUTHORITIES. 48 
 
 to the assignee upon the further-consideration that the assignee pay the funeral 
 expenses will be sustained; Bendet v. Ellis, 120 Tenn. 290, 18 L.R.A.(N.S.) 118, 
 127 Am. St. Rep. 1000, 111 S. W. 795, holding the assignee of a life insurance 
 policy taken out under agreement for its assignment to one having no insurable 
 interest might be compelled to pay to the estate the amount of the policy less 
 what the policy cost him; Bloomstein v. Bloomstein, 1 Tenn. Ch. App. 194, hold- 
 ing the widow of an insured could not recover the proceeds of a policy paid to 
 a niece of insured who paid the premiums. 
 
 Cited in footnote to Opitz v. Karel, 62 L. R. A. 982, holding that insured may 
 make valid gift of proceeds of insurance by delivery of policy, although policy 
 required written assignment. 
 
 Cited in notes (3 L.R.A. (N.S.) 950) on validity of assignment of interest in 
 life insurance to one paying premiums; (6 L.R.A. (N.S.) 129) on validity of 
 assignment not made as cover for wager policy of life insurance to one having 
 no insurable interest; (16 Am. St. Rep. 907) on validity of assignment of policy 
 to one having no insurable interest. 
 
 Disapproved in effect in Farmers' & T. Bank v. Johnson, 118 Iowa, 285, 91 
 N. W. 1074, holding policy assignable to one without insurable interest. 
 
 1 L. R. A. 230, HARRISBURG & E. R. CO.'S APPEAL, 1 Monaghan (Pa.) 692, 
 
 15 Atl. 459. 
 Joinder of parties. 
 
 Cited in Delaware River Quarry & Constr. Co. v. Bethlehem & N. Street R. Co. 
 7 Northampton Co. Rep. 197, raising, but not deciding, question whether trustee 
 in mortgage and bondholders should be joined in action on contract against rail- 
 road companies. 
 
 1 L. R. A. 232, DELAWARE & H. CANAL CO. v. COM. 1 Monaghan (Pa.) 36, 
 
 2 Inters. Com. Rep. 222, 17 Atl. 175. 
 Tax on iii'oss receipts. 
 
 Cited in Northern P. R. Co. v. Barnes, 2 N. D. 379, 51 N. W. 386 (dissenting 
 opinion), majority upholding constitutionality of per centum tax on gross 
 earnings. 
 
 Cited in footnotes to Vermont & C. R. Co. v. Vermont C. R. Co. 10 L. R. A. 
 562, which holds taxes on gross earnings, taxes upon property within rule re- 
 quiring lessor to pay such taxes; Cumberland & P. R. Co. v. State, 52 L. R. A. 
 764, which holds tax on gross receipts of railroad corresponding to proportion of 
 mileage in state valid; Northern P. R. Co. v. Raymond, 1 L. R. A. 732, which 
 holds unconstitutional per centum tax on earnings from interstate commerce. 
 
 Cited in notes (1 L. R. A. 244) on taxation of franchise of corporation; 
 (17 L. R. A. 443) on whether shipments between points in the same state lose 
 their character as domestic commerce by passing out of the state during trans- 
 portation. 
 Tax on interstate commerce. 
 
 Followed in Lehigh Valley R. Co. v. Com. 1 Monaghan (Pa.) 46, 17 Atl. 179. 
 holding state cannot tax receipts for transportation between points within and 
 points without state. 
 
 Cited in Com. v. Westinghouse Electric & Mfg. Co. 151 Pa. 271, 24 Atl. 1107, 
 and Com. v. United Gas Improv. Co. 7 Pa. Co. Ct. 117, holding capital stock of 
 corporation invested in patent rights not taxable. 
 
 Cited in footnotes to Northern P. R. Co. v. Raymond, 1 L. R. A. 732, and 
 Vermont & C. R. Co. v. Vermont Central R. Co. 10 L. R. A. 562, which hold act 
 taxing interstate commerce unconstitutional. 
 
49 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 237 
 
 Cited in notes (17 L. R. A. 643) on shipments within a state as part of 
 interstate or foreign transportation; (57 L. R. A. 60, 63, 67) on taxation of cor- 
 porate receipts, income, etc., in the United States; (51 L. ed. U. S. 541) on local 
 transportation of goods as part of interstate or foreign shipment. 
 
 1 L. R. A. 237, COM. v. AMERICAN DREDGING CO. 122 Pa. 386, 2 Inters. Com. 
 
 Rep. 221, 9 Am. St. Rep. 116, 15 Atl. 443. 
 T:i \ai) ! situs of personal property. 
 
 Cited in Com. v. Westinghouse Eleclric & Mfg. Co. 151 Pa. 267, 24 Atl. 1107, 
 holding capital stock in manufacturing plants in other states untaxable; Com. 
 v. Delaware, L. & W. R. Co. 206 Pa. 649, 56 Atl. 69, Affirming 4 Dauphin Co. Rep. 
 147; Com. v. Pennsylvania Coal Co. 4 Dauphin Co. Rep. 130; Com. v. Pennsyl- 
 vania Coal Co. 197 Pa. 554, 47 Atl. 740, Affirming 9 Pa. Dist. R. 487, 3 Dauphin 
 Co. Rep. 145, holding mining corporation taxable for its coal shipped to and 
 stored in other states for sale; Com. v. Thomas Iron Co. 12 Pa. Co. Ct. 659^ 
 holding mines in other state, of coal mining company, exempt from taxation; 
 State ex rel. Dwinnell v. Gaylord, 73 Wis. 325, 41 N. W. 521, holding debt taxable 
 to creditor at his residence. 
 
 Cited in footnotes to Myers v. Baltimore County, 34 L. R. A. 309, which hold? 
 live stock taxable, though intended for export; Atlantic & P. R. Co. v. Lesueur, 
 1 L. R. A. 246, which holds situs of rolling stock for taxation is where habitually 
 used; Grigsby Constr. Co. v. Freeman, 58 L. R. A. 349, which holds blacksmith 
 tools and commissary store goods used by corporation in its work, taxable. 
 
 Cited in notes (69 L.R.A. 443, 444, 448) on situs, for taxing purposes, of 
 tangible personalty of domestic corporations; (36 L.R.A. (N.S.) 296, 298) on 
 personal property having taxation situs elsewhere, as subject of taxation in state 
 of owner's domicil; (62 Am. St. Rep. 449, 473) on situs of personal property for 
 purposes of taxation. 
 
 Distinguished in Delaware, L. & W. R. Co. v. Pennsylvania, 198 U. S. 356, 49 
 L. ed. 1083, 25 Sup. Ct. Rep. 669, holding in assessing the value of the capital 
 stock of a corporation coal owned by the corporation at the time of the assess- 
 ment, situated in another state and not to be returned to state should not be 
 included; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 208, 50 L. ed. 
 155, 26 Sup. Ct. Rep. 36, 4 A. & E. Ann. Cas. 493, holding cars owned by a transit 
 refrigerating company and permanently employed without the state was not 
 taxable in state. 
 Vessels. 
 
 Cited in Olson v. San Francisco, 148 Cal. 84, 2 L.R.A.(N.S.) 200. 113 Am. 
 St. Rep. 191, 82 Pac. 850, 7 A. & E. Ann. Caa. 443, holding a sea going vessel 
 engaged in a foreign trade and temporarily registered in another state is deemed 
 to be taxable in state where owners reside although she has never been in the 
 waters of the home port; North American Dredging Co. v. Taylor, 56 Wash. 568, 
 29 L.R.A.(N.S.) 105, 106 Pac. 162, holding a steam dredge was taxable at the 
 port at which built and at which owner lived although registered as of another 
 port. 
 
 Cited in notes (37 L. R. A. 519) on where ships are taxable; (60 L. R. A. 655) 
 on corporate taxation and the commerce clause. 
 
 Distinguished in Com. v. Delaware, L. & W. R. Co. 145 Pa. 104, 28 W. N. C. 
 325, 22 Atl. 157, holding domestic corporation not taxable for boats built, regis- 
 tered, and used wholly outside state. 
 L.R.A. Au. Vol. I. 4. 
 
1 L.R.A. 238] L. R. A. CASES AS AUTHORITIES. 50 
 
 1 L. R. A. 238, UNITED BRETHREN MUT. AID SOC. v. McDOXALD, 122 Pa. 
 
 324, 9 Am. St. Rep. Ill, 15 Atl. 439. 
 Insnrable interest. 
 
 Cited in Prudential Ins. Co. v. Hunn, 21 Ind. App. 530, 69 Am. St. Rep. 380, 
 52 N. E. 772, holding mother who contracts for insurance on life of son must 
 allege insurable interest in action on policy; Brady v. Prudential L. Ins. Co. 5 
 Kulp, 505, holding cousin of insured without insurable interest; McDermott v. 
 Prudential Ins. Co. 7 Kulp, 249, holding policy issued to one without insurable 
 interest not enforceable, although valid where made; Hess v. Segenfelter, 127 
 Ky. 356, 14 L.R.A.(N.S.) 1176, 128 Am. St. Rep. 343, 105 S. W. 473, holding 
 first cousins, not creditors of the insured, have no insurable interest in his life; 
 Woods v. Woods (Woods v. Riner) 130 Ky. 168, 19 L.R.A.(N.S.) 235, 113 S. W. 
 79, holding a son had an insurable interest in the life of his mother. 
 
 Cited in footnotes to Adams v. Reed, 35 L. R. A. 692, which holds woman may 
 have insurable interest in her son-in-law's life; Mutual Reserve Fund Life Asso. 
 v. Hurst, 20 L. R. A. 761, which holds insurable interest immaterial where con- 
 troversy is between claimants only; Hurd v. Doty, 21 L. R. A. 746, which holds 
 trustee cannot refuse payment of proceeds of policy because beneficiaries are 
 without insurable interest. 
 
 Cited in notes (2 L. R. A. 844; 6 L. R. A. 136, 137) on insurable interest in 
 life of another; (54 L. R. A. 228) on insurable interest in life of parent or child 
 or other relative by blood; (3 L.R.A. (N.S.) 336) as to who is a member of 
 "family" within contract of benefit society. 
 
 Distinguished in Ingersoll v. Knights of G. R. 47 Fed. 274, holding mutual 
 benefit policy authorizing change of beneficiary valid, although beneficiary had 
 no pecuniary interest in life of insured. 
 Wagering policies. 
 
 Cited in White v. Bradley, 28 Lane. L. Rev. 366, holding that assignment of 
 policy to person not a relative or creditor of insured is wagering contract and 
 void. 
 
 Cited in note (13 Eng. Rul. Cas. 355) on wagering policies and their validity. 
 
 1 L. R. A. 240, GASSERT v. BOGK, 7 Mont. 585, 19 Pac. 281. 
 Statement on appeal. 
 
 Cited in Kimpton v. Jubilee Placer Min. Co. 22 Mont. 108, 55 Pac. 918, raising, 
 without deciding, question as to striking out statement on appeal filed after 
 repeal of statute providing therefor. 
 Jurisdiction of district court on appeal. 
 
 Cited in Anderson v. Red Metal Min. Co. 36 Mont. 318, 93 Pac. 44, on the ju- 
 risdiction of district court on appeal. 
 Construction of deed n- mortgage. 
 
 Cited in Kleinschmidt v. Kleinschmidt, 9 Mont. 489, 490, 24 Pac. 266, holding 
 deed absolute, with bond to reconvey, not a mortgage unless evidence shows it 
 was intended as such; Jasper v. Hazen, 4 N. D. 6. 23 L. R. A. 63, 58 N. W. 454, 
 and Armor v. Spalding, 14 Colo. 305, 23 Pac. 789, holding proofs must be clear, 
 unequivocal, and convincing before court of equity will construe deed as mort- 
 gage; Devore v. Woodruff, 1 N. D. 149, 45 N. W. 701, holding separate agreement 
 to reconvey on payment of specified sum not conclusive proof that deed intended 
 as mortgage; Larson v. Dutiel, 14 S. D. 483, 85 N. W. 1006, construing deed of 
 mortgaged premises in satisfaction of notes not returned as absolute conveyance; 
 Sullivan v. Woods, 5 Ariz. 200, 50 Pac. 113, holding a mere preponderance in 
 the evidence was not sufficient to show a deed absolute on its face a mort 
 
51 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 244 
 
 \Vis\vell v. Simmons, 77 Kan. 625, 95 Pac. 407, construing a transaction, where a 
 deed and a bond to reconvey executed at the same time, to be a mortgage; Morri- 
 son v. Jones, 31 Mont. 161, 77 Pac. 507; Wilson v. McWilliams, 16 S. D. 105, 91 
 N. W. 453, on when absolute deed will be construed to be a mortgage; Goodbar 
 & Co. v. Bloom, 43 Tex. Civ. App. 443, 96 S. W. 657, on necessity that it appear 
 that parties to deed absolute on face bear the relation of debtor and creditor 
 in order to show such instrument to be a mortgage; Murray v. Butte-Monitor 
 Tunnel Min. Co. 41 Mont. 454, 110 Pac. 497, holding transfer of stock a loan and 
 not a sale. 
 
 Cited in note (18 Eng. Rul. Cas. 13) on test between mortgage and conditional 
 sale. 
 Specific performance. 
 
 Cited in footnotes to Hodges v. Rowing, 7 L. R. A. 87, which holds suit by 
 vendor for specific performance cannot be defeated because of remedy at law; 
 Coffey v. Emigh, 10 L. R. A. 127, which grants specific performance of contract 
 fair, reasonable, just, and proved substantially as alleged. 
 
 1 L. R. A. 244, ATLANTIC & P. R. CO. v. LESUEUR, 2 Ariz. 428, 2 Inters. Com, 
 
 Rep. 189, 19 Pac. 157. 
 Taxation of franchise as interference with interstate commerce. 
 
 Cited in Northern P. R. Co. v. Barnes, 2 N. D. 351, 51 N. W. 386, holding, in 
 absence of restriction by Congress, territorial legislature may tax gross local earn- 
 ings of railroad. 
 
 Cited in footnotes to Northern P. R. Co. v. Raymond, 1 L. R. A. 732, which 
 holds tax on gross earnings of railroad, so far as derived from interstate com- 
 merce, unconstitutional; Hall v. American Refrigerator Transit Co. 56 L. R. A. 
 89, which holds tax on refrigerator cars in state on interstate business not tax 
 on interstate commerce; Cumberland & P. R. Co. v. State, 52 L. R. A. 764, which 
 holds tax on gross receipts of railroad, proportionate to mileage within state, 
 constitutional. 
 
 Cited in notes (1 L. R. A. 233) on tax on gross receipts of railroads; (57 L. 
 H. A. 93) on franchise tax on foreign corporations engaged in interstate com- 
 merce; (57 L. R. A. 56) on taxation of railroad franchise granted by United 
 States, as interference with Federal agencies and burden on Federal grants. 
 Taxing power limited only by Constitution. 
 
 Cited in Detroit Citizens' Street R. Co. v. Detroit, 125 Mich. 703, 84 Am. St. 
 Rep. 589, 85 N. W. 96, holding legislature may impose general tax upon railway 
 company in lieu of specific tax. 
 
 Cited in note (60 L. R. A. 39) on corporate taxation in United States as 
 affected by contract clause in Federal Constitution. 
 Corporate exemption* from taxation. 
 
 Followed in Territory v. Delinquent Tax List, 3 Ariz. 121, 21 Pac. 768, holding 
 the exemption of a right of way from taxation does not carry with it the exemp- 
 tion of improvements attached thereto. 
 
 Cited in Shreveport Creosoting Co. v. Shreveport, 119 La. 642, 44 So. 325, on 
 exemptions from taxation as never being presumed. 
 
 Cited in footnote to Springfield v. Smith, 37 L. R. A. 446, which holds fact 
 that railroad franchise contains no exemption from license taxes does not pre- 
 clude their imposition. 
 
 Cited in notes (6 L. R. A. 155) on exemption from taxation not applying to 
 local assessments; (19 L. R. A. 81) on power of state legislature to exempt from 
 
1 L.R.A. 244] L. R. A. CASES AS AUTHORITIES. 52 
 
 taxation; (57 L. R. A. 47) on property exempt as part of franchise; (60 L. R. A. 
 
 77) on extent of corporate exemptions from taxation. 
 
 Situs of movable personal property for purposes of taxation. 
 
 Cited in Bessemer v. Southern R. Co. 157 Ala. 432, 48 So. 103, holding that car 
 passing through city has not such a situs therein as to be subject to municipal 
 taxation. 
 
 Cited in footnotes to Union Refrigerator Transit Co. v. Lynch, 48 L. R. A. 790, 
 which holds state may tax railway cars of foreign corporation employed in or 
 passing through state; Hall v. American Refrigerator Transit Co. 56 L. R. A. 89, 
 which holds average number of cars of foreign corporation transiently within 
 state taxable therein ; Grigsby Constr. Co. v. Freeman, 58 L. R. A. 349, which 
 holds contractor's outfit brought into state to be used on construction work, 
 taxable. 
 
 Cited in note (69 L.R.A. 437, 446) on situs, for taxing purposes, of tangible 
 personalty of domestic corporations. 
 "Right of vray" defined. 
 
 Cited in Mercantile Trust Co. v. Atlantic & P. R. Co. 63 Fed. 913, holding grant 
 of right of way over public lands gives easement only. 
 
 Cited in note (66 L.R.A. 38) on nature of railroad right of way as realty or 
 personalty. 
 Injunction to restrain collection of taxes. 
 
 Cited in Greer v. Richards, 3 Ariz. 229, 32 Pac. 266, on the maintenance of an 
 action to enjoin the collection of taxes. 
 Definition of easement. 
 
 Cited in note (136 Am. St. Rep. 682) on definition of easement. 
 
 1 L. R. A. 250, LOOS v. WILKINSON, 110 N. Y. 195, 18 N. E. 99. 
 Rig-lit of assignee to assail prior transfers. 
 
 Cited in Smith v. Payne, 24 Jones & S. 455, 3 N. Y. Supp. 826, holding right 
 to assail judgments and executions as fraudulent rests in assignee alone, while 
 assignment remains in force; Guilford v. Mills, 57 Hun, 495, 11 N. Y. Supp. 261, 
 holding creditor of assignor cannot seize mortgaged chattels of debtor in hands 
 of mortgagee, even though mortgage fraudulent. 
 
 Distinguished in Birdsall, W. & P. Mfg. Co. v. Schwarz, 3 App. Div. 302, 38 
 N. Y. Supp. 368, holding creditors may attack transfer of individual property 
 not vested in assignee of partnership; Cornwell v. Baldwin's Bank, 12 App. Div. 
 232, 43 N. Y. Supp. 771, holding general assignee cannot insist on reduction oi 
 creditor's claim by amount misappropriated by assignor as agent for such creditor. 
 Necessity of setting aside assignment before attacking prior transfers. 
 
 Cited in Strickland v. Laraway, 29 N. Y. S. R. 877, 9 X. Y. Supp. 761, holding 
 creditor, without attacking assignment, cannot assail prior deed; National Hud- 
 son River Bank v. Chaskin, 28 App. Div. 315, 51 N. Y. Supp. 64, holding that, 
 under valid assignment, creditor cannot invalidate prior bill of sale, though con- 
 ceded to be fraud upon creditors; Wheeler v. Childs, 22 App. Div. 614, 48 N. Y. 
 Supp. 1023, in which it was conceded that individual creditors of insolvent firm 
 could not attack prior transfers without having assignment set aside. 
 
 Distinguished in Spelman v. Freedman, 130 N. Y. 427, 29 N. E. 765, holding 
 general creditors authorized to sue to set aside judgment on assignee's refusal. 
 Parties to action to set aside frandnlent transfer. 
 
 Cited in Dixon v. Coleman, 28 Misc. 66, 59 N. Y. Supp. 806, holding all persons- 
 claiming interest proper parties in creditors' action attacking fraudulent 
 transfers; Hubbard v. United Wireless Teleg. Co. 62 Misc. 540, 115 N. Y. Supp.. 
 
53 L. LI. A. CASKS AS AlTIItMUTIES. [1 L.R.A. 250 
 
 1016, holding a judgment creditor might maintain an action to set aside a 
 fraudulent transfer of debtor's property, although judgment debtor is unable to 
 do so; Witherbee v. Bowles, 201 N. Y. 434, 95 N. E. 27, holding that stockholders, 
 in action to avoid fraudulent increase of stock, may join as parties defendant all 
 persons who took part therein. 
 Transferee's participation in fraud. 
 
 Cited in First Nat. Bank v. Warner, 55 Hun, 125, 8 N. Y. Supp. 765, holding 
 evidence of assignor's fraudulent intent admissible against innocent assignee; 
 Re Hallheimer, 21 App. Div. 529, 48 N. Y. Supp. 697, holding title to property 
 fraudulently assigned remains in assignor as to impeaching creditors, notwith- 
 standing assignee's good faith; Carver v. Barker, 73 Hun, 419, 26 N. Y. Supp. 
 919, holding grantee's knowledge of intent of debtor immaterial, in case of 
 fraudulent conveyance without consideration; Illinois Watch Co. v. Payne, 33 
 N. Y. S. R. 970, 11 N. Y. Supp. 408, holding fraudulent intent of debtor alone 
 will invalidate confessed judgment; Kennedy v. Wood, 52 Hun, 51, 4 N. Y. Supp. 
 758, holding assignee's intent not material, not being a purchaser for value; 
 Merchants' Nat. Bank v. Greenhood, 16 Mont. 457, 41 Pac. 250, holding intent of 
 general assignee not material, as he is not a purchaser for valuable consideration ; 
 Berger v. Varrelmann, 127 N. Y. 294, 12 L. R. A. 814, 27 N. E. 1065, holding 
 judgment confessed in fraud of assignment should be set aside, even though the 
 creditor did not participate therein ; Koechl v. Leibinger & 0. Brewing Co. 26 App. 
 Div. 580, 50 N. Y. Supp. 568, holding participation by assignee of corporation in 
 fraud unnecessary to avoid assignment; Harting v. Rosenfeld, 26 Misc. 176, 56 
 N. Y. Supp. 753, holding general assignment without preference to innocent 
 assignee void, debtor secreting property from assignee; Metcalf v. Moses, 35 App. 
 Div. 606, 55 N. Y. Supp. 179, holding bona fide grantee of real property as pay- 
 ment or security for debt, not affected by fraud of grantor. 
 
 Cited in notes (9 L. R. A. 417) on intent to hinder, delay, or defraud creditors; 
 (36 L. R. A. 345) on preference to relatives; (36 L. R. A. 360) on participation 
 of preferred creditor in debtor's fraud. 
 
 Distinguished in Galle v. Tode, 148 N. Y. 279, 42 N. E. 673, Reversing on this 
 point 74 Hun, 546, 26 N. Y. Supp. 633, holding fraudulent intent of the 
 debtor will not in itself invalidate confession of judgment for bona fide debt. 
 Fraud in assignment. 
 
 Cited in Rothschild v. Salomon, 20 N. Y. S. R. 60, holding creditor attacking 
 assignment must show fraudulent intent in the assignment itself. 
 Fraud upon assignment. 
 
 Cited in First Nat. Bank v. Wood, 86 Hun, 495, 33 N. Y. Supp. 777, holding 
 execution of mortgage by assignor three days before assignment does not per se 
 indicate intent to defraud creditors; Zimmer v. Hays, 8 App. Div. 38, 40 N. Y. 
 Supp. 397, holding chattel mortgage void as to creditors does not necessarily 
 avoid an assignment; Swectser v. Davis, 26 App. Div. 402, 49 N. Y. Supp. 874, 
 holding frauds upon assignment not basis for setting it aside; Home Bank v. 
 J. B. Brewster & Co. 17 Misc. 445, 41 N. Y. Supp. 203, holding prior transfers 
 void as 'part of scheme to hinder, delay, and defraud creditors. 
 
 Distinguished in Manning v. Beck, 54 Hun, 105, 7 N. Y. Supp. 215, holding cred- 
 itor may attack assignment whether fraudulent intent be shown by assignment 
 itself or contemporaneous acts; Davis v. Harrington, 55 Hun, 111, 8 N. Y. Supp. 
 218, holding acts immediately preceding and preparatory to assignment insepa- 
 rable from assignment itself; First Nat. Bank v. Prager, 50 W. Va. 679, 41 
 S. E. 363, holding good on demurrer bill distinctly attacking, as fraudulent, 
 general assignment of all of debtor's property. 
 
1 L.R.A. 250] L. R. A. CASES AS Al"l iiOUl 1 IKs. 5-i 
 
 Declarations as to transfer attacked as fraudulent. 
 
 Cited in Kennedy v. Wood, 52 Hun, 48, 4 X. Y. Supp. 758, holding declarations 
 admissible against assignor and assignee as to assignor's intent; Baldwin v. 
 Short, 54 Hun, 476, 7 N. Y. Supp. 717, holding declarations of grantor admissible; 
 Scofield v. Spaulding, 54 Hun, 527, 7 N. Y. Supp. 927, holding, on evidence tending 
 to establish conspiracy, declarations of defendant admissible against him; First 
 Nat. Bank v. Warner, 55 Hun, 126, 8 X. Y. Supp. 765, holding representations to 
 creditors as to solvency about time of assignment admissible; First Xnt. Bank 
 v. Moffatt, 77 Hun, 471, 28 N. Y. Supp. 1078, holding declarations admissible to 
 qualify testimony of grantor and to show fraud; White, Corbin & Co. v. Jones, 
 86 Hun, 60, 34 N. Y. Supp. 203, holding declarations of parties interested at time 
 of transaction, as to overvaluation of property paid for with corporate stock, 
 admissible to show intent; Flannery v. Van Tassel, 127 N. Y. 634, 27 N. E. 393, 
 holding declarations of vendor in absence of purchaser in good faith not compe- 
 tent against vendee; Leary v. Corvin, 63 App. Div. 156, 71 N. Y. Supp, 335. Re- 
 versing 29 Misc. 74, 60 N. Y. Supp. 565, holding grantor's prior declarations 
 against interest while in possession admissible against his grantee ; McKean v. 
 Adams, 11 Misc. 388, 32 N. Y. Supp. 281, holding declarations of assignor ad- 
 missible against assignee in case of mere colorable assignment of claim; Muller 
 v. Flavin, 13 S. D. 616, 83 N. W. 687, holding subsequent declaration admissible 
 where both grantor and grantee participated in fraud; Leary v. Corvin, 30 N. Y. 
 Civ. Proc. Rep. 45, 60 N. Y. Supp. 563, holding declarations by a former owner 
 of property against his interest and made prior to the conveyance by him were 
 admissible against one claiming title through him ; Flannery v. Van Tassel, 3 
 Silv. Ct. App. 460, 27 N. E. 393, on when declarations of an assignor are admis- 
 sible to prejudice the title of his assignee. 
 
 Distinguished in Williams v. Williams, 142 N. Y. 159, 36 N. E. 1053, holding, 
 in action of ejectment, subsequent declarations of grantor inadmissible against 
 grantee; Lent v. Shear, 160 N. Y. 470, 55 N. E. 2, holding testimony of grantor 
 in supplementary proceedings not admissible against grantee; Noyes v. Morris, 
 56 Hun, 504, 10 N. Y. Supp. 561, holding declarations not competent in absence 
 of proof of conspiracy, as against grantee or assignee in possession; Commercial 
 Bank v. Bolton, 87 Hun, 556, 35 N. Y. Supp. 138, holding ex parte declarations 
 of vendor not admissible against bona fide purchaser for value. 
 Book entries as evidence. 
 
 Applied in Hotopp v. Huber, 160 N. Y. 530, 55 N. E. 206, in case of limited 
 partnership. 
 
 Cited in White v. Benjamin, 150 N. Y. 267, 44 N. E. 956, holding grantor's 
 books competent on question of good faith of transfer to third person; Xewman 
 v. Clapp, 20 Misc. 70, 44 N. Y. Supp. 439, holding omission of entry of alleged 
 loan on books of firms interested, pursuasive proof against such loan; Cluett v. 
 Rosenthal, 100 Mich. 197, 43 Am. St. Rep. 446, 58 N. W. 1009, holding informa- 
 tion wrongfully obtained as to contents of books admissible for one not responsible 
 for tort in obtaining it ; Volusia County Bank v. Bigelow, 45 Fla. 653, 33 So. 704, 
 holding an account of wife in husband's ledger was admissible in the determina- 
 tion of the indebtedness alleged to be the consideration of a sale of property to 
 her. 
 
 Cited in note (53 L. R. A. 534) on use of person's books of account as evidence 
 upon issues between other parties. 
 
 Distinguished in Commercial Bank v. Bolton, 87 Hun. 556, 35 N. Y. Supp. 138, 
 holding entries in books by vendor before sale contemplated inadmissible against 
 vendee. 
 
55 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 256 
 
 Scope of Inquiry as to fraud. 
 
 Cited in Townsend v. Felthousen, 156 N. Y. 625, 51 N. E. 279, holding that con- 
 siderable latitude must be allowed in trial examination and scope of inquiry. 
 Accounting; by fraudulent grantee. 
 
 Cited in Salt Springs Nat. Bank v. Faucher, 92 Hun, 330, 36 N. Y. Supp. 742 r 
 holding fraudulent grantee must account for proceeds of mortgage made by him 
 upon property conveyed; Scott v. Mead, 37 Fed. 875, holding fraudulent grantee 
 must account so far as necessary to satisfy claims decreed paid; Harris v. Brink, 
 100 Iowa, 369, 62 Am. St. Rep. 578, 69 N. W. 684, holding grantee chargeable aa 
 to excess of property fraudulently conveyed under agreement for future support; 
 Loos v. Wilkinson, 113 N. Y. 485, 4 L. R. A. 353, 10 Am. St. Rep. 495, 21 N. E. 
 392, Reversing 51 Hun, 79, 5 N. Y. Supp. 410, allowing grantee on accounting in 
 main case credit for taxes, repairs, interest paid, and commissions for collect- 
 ing rents; Massch v. Grauer, 123 App. Div. 672, 108 X. Y. Supp. 54 (dissenting 
 opinion), on fraudulent grantee as accountable for rents and profits from what 
 time. 
 
 Cited in note (36 L. R. A. 356) on allowing lien where conveyance in satisfac- 
 tion of debt is held partly void. 
 
 Distinguished in Daisy Roller Mills v. Ward, 6 N. D. 325, 70 N. W. 271, holding 
 that fraudulent grantee cannot hold property as security for encumbrances paid 
 off by him, no accounting being asked; Baldwin v. Short, 54 Hun, 476, 7 N. Y. 
 Supp. 717, refusing to uphold fraudulent transfer, as security for actual considera- 
 tion, where part of consideration is fictitious. 
 
 1 L. R. A. 256, GARNER v. GERMANIA L. INS. CO. 110 N. Y. 266, 18 N. E. 130, 
 Change of beneficiaries of insurance. 
 
 Cited in Carpenter v. Negus, 17 Misc. 175, 40 N. Y. Supp. 995, holding ineffect- 
 ual, insured's unauthorized change of beneficiaries when taking paid-up policy 
 for surrender value; Sterrit v. Lee, 24 Misc. 327, 52 N. Y. Supp. 1132, holding 
 administrator of beneficiary entitled to proceeds of policy payable to mother of 
 insured, her administrators, executors, or assigns; Phipard v. Phipard, 55 Hun, 
 436, 8 N. Y. Supp. 728, holding trust created in policy, left by assured with- 
 trust company, with written statement that it is for his children ; Griffith v. 
 New York L. Ins. Co. 101 Cal. 639, 40 Am. St. Rep. 96, 36 Pac. 113, holding 
 beneficiary's right unaffected by insured's surrender of policy on return of pre- 
 mium note; Jackson Bank Y. Williams, 77 Miss. 403, 78 Am. St. Rep. 530, 26 So. 
 965, holding beneficiary absolutely entitled to policy as against insured's assignee; 
 Sangunitto v. Goldey, 88 App. Div. 80, 84 N. Y. Supp. 989, holding original bene- 
 ficiary entitled to proceeds of policy where insured failed to comply with con- 
 ditions of policy in attempting to change; Penn Mut. L. Ins. Co. v. Norcross, 163 
 Ind. 391, 72 N. E. 132, on how interest of beneficiary under a life insurance policy 
 may be divested. 
 
 Cited in footnote to Clark v. Hirschl, 9 L. R. A. 841, which holds insured may 
 change beneficiary under right reserved. 
 
 Cited in notes (49 L. R. A. 737, 744) on power of insured to destroy rights of 
 beneficiary; (35 L.R.A. (N.S.) 845) on surrender of ordinary life policy without 
 beneficiary's consent. 
 
 Distinguished in Cyrenius v. Mutual L. Ins. Co. 13 N. Y. S. R. 205, holding 
 rights of beneficiary paying premiums do not pass on mere handing of policy to 
 insured; Alliance Milling Co. v. Eaton, 86 Tex. 409, 24 L. R. A. 386, 25 S. W. 
 614, holding that attachment takes priority over deed of trust for other creditors 
 ignorant of its existence before attachment was levied. 
 
1 L.R.A. 256] L. R. A. CASES AS AUTHORITIES. 56 
 
 Interest of beneficiary. 
 
 Cited in Re Judson, 188 Fed. 704, holding that son has interest in policy on 
 father's life which goes to his trustee in bankruptcy, where bankruptcy proceed- 
 ings are commenced against firm composed of father and son and father commits 
 suicide before adjudication; Dunn v. New Amsterdam Casualty Co. 141 App. Div. 
 484, 126 N. Y. Supp. 229 (dissenting opinion), Reversing 67 Misc. 110, 121 X. V. 
 Supp. 686, on vested interest of beneficiary under policy of casualty company 
 containing reservation of right to change beneficiary; Re McGregor, 18 Manitoba 
 L. Rep. 438, holding that right to insurance money passes to personal repre- 
 sentatives of beneficiary on his death before insured. 
 Lapse of policy. 
 
 Cited in Weatherbee v. New York L. Ins. Co. 178 Mass. 578, 60 N. E.. 381, 
 holding that beneficiary ceasing to pay premiums cannot claim waiver by insurer 
 assuming to end policy at insured's unauthorized request. 
 
 Cited in footnote to Stewart v. Union Mut. L. Ins. Co. 42 L. R. A. 147, which 
 holds policy not forfeited by failure to pay check for premium note during life 
 of insured. 
 
 Cited in notes (9 L. R. A. 189) on forfeitures under insurance policies not 
 favored in law; (49 L. R. A. 742) on power of insured to destroy right of bene- 
 ficiary by allowing lapse. 
 
 Distinguished in Miles v. Connecticut Mut, L. Ins. Co. 147 U. S. 184, 37 L. 
 ed. 131, 13 Sup. Ct. Rep. 275, holding insurer not liable, after accepting sur- 
 render in good faith, to beneficiary not showing excuse for subsequent nonpay- 
 ment of premiums; Leonhard v. Provident Sav. Life Assur. Soc. 130 Fed. 289, 
 holding insurance company not estopped from claiming forfeiture for nonpay- 
 ment of premiums on policy surrendered for another by husband, without knowl- 
 edge of wife, the beneficiary. 
 Valuation of converted funds as against trustee. 
 
 Cited in Hine v. Hine, 118 App. Div. 588, 103 N. Y. Supp. 535, holding execu- 
 tors making an unauthorized disposition of farm belonging to testator's estate 
 are personally responsible for the value of the farm at the time of the transfer. 
 Revocation of trusts. 
 
 Cited in notes (20 Am. St. Rep. 861) on power to revoke deed of trust; (34 
 Am. St. Rep. 218) on revocation of voluntary trusts. 
 Voluntary trusts arising: from declarations of trnstor. 
 
 Cited in note (34 Am. St. Rep. 198, 213) on voluntary trusts arising from 
 declarations of trustor. 
 
 1 L. R. A. 258, BIDELMAN v. STATE, 110 N. Y. 232, 18 N. E. 115. 
 Injury to property in higrhvray. 
 
 Followed in Ft. Covington v. United States <Sb C. R. Co. 8 App. Div. 224, 40 
 N. Y. Supp. 313, holding town may maintain action for injury to or destruction 
 of highway bridge. 
 
 Applied in Parish v. Baird, 160 N. Y. 307, 54 N. E. 724, sustaining right of 
 private person required to construct and maintain sidewalk to recover for its 
 negligent injury. 
 
 Cited in Com. v. Fitzgerald, 164 Mass. 590, 42 N. E. 119, holding county's 
 special or qualified property in bridge sufficient to sustain indictment for burning ; 
 Missouri Edison Electric Co. v. Weber, 102 Mo. App. 102. 76 S. W. 736, holding 
 action maintainable by electric companies for damages to manholes in public 
 highway; Lenox v. State, 61 Misc. 31, 114 N. Y. Supp. 744, holding town in which 
 
57 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 260 
 
 bridges across a ditch are destroyed by the negligent manner in which they are 
 widened, has a claim against the state. 
 
 Cited in note (61 L. R. A. 861) on construction and operation of canals. 
 
 Distinguished in Levis v. Black River Improv. Co. 105 Wis. 397, 81 N. W. 669, 
 denying town's right to recover for breach of agreement to keep highway in re- 
 pair, where no expenditure made or liability sustained. 
 Actions maintainable by municipalities. 
 
 Cited in Albany v. Hooker, 204 N. Y. 13, 97 N. E. 403, holding that county 
 cannot maintain action to have highway improvement act declared void. 
 
 1 L. R. A. 260, CENTRAL TRUST CO. v. NEW YORK CITY & N. R. CO. 110 
 
 N. Y. 250, 18 N. E. 92. 
 Mode of enforcing payment of corporate tax. 
 
 Cited in People ex rel. Young v. Willis, 35 N. Y. S. R. 180, 12 N. Y. Supp. 385, 
 holding assessment of contracts for land outside of village not authorized by 
 village charter; Boston v. Turner, 201 Mass. 195, 87 N. E. 634, holding a col- 
 lector of taxes might maintain a suit in equity in which a person assessed for 
 the tax is made a defendant, to enforce a trust established for the purpose, 
 among other things, of paying taxes. 
 
 Cited in note (57 L. R. A. 106) on taxation of corporate franchises in the 
 United States; administration and relief. 
 
 Distinguished in Bloxham v. Consumer's Electric Light & Street R. Co. 36 Fla. 
 548, 29 L. R. A. 511, 51 Am. St. Rep. 44, 18 So. 444, holding state not com- 
 pelled to seek payment of taxes from proceeds of property in custody of court; 
 Re Stonebridge, 53 Hun, 551, 6 N. Y. Supp. 311 (dissenting opinion), as to 
 strict statutory procedure in procuring receiver's warrant for examination ; 
 Rochester v. Bloss, 185 N. Y. 49, 6 L.R.A.(N.S.) 699, 77 N. E 794, 7 A. & E. 
 Ann. Gas. 15, holding city could not maintain an action to recover taxes where 
 charter contained no provisions expressly authorizing such action. 
 Prerogative of state to priority in payment of debts. 
 
 Cited in Robinson v. Mutual Reserve L. Ins. Co. 175 Fed. 627, holding in the 
 winding up of the affairs of an insolvent corporation debts due the state are not 
 given a preference where not given such preference by state law; Central Trust 
 Co. v. Third Ave. R. Co. 186 Fed. 292, holding that lien of state on railroad's 
 property for tax on dividends does not have priority over prior mortgage. 
 
 Cited in notes (1 L.R.A. (N.S.) 255) on preference of claims of state over 
 other creditors; (54 Am. St. Rep. 421) on claims of state for taxes as taking 
 precedence over mortgages of railways and similar property. 
 
 Distinguished in Commissioner of Banking v. Chelsea Sav. Bank, 161 Mich. 
 705, 127 N. W. 351, holding the state by the adoption of the common law did not 
 adopt and thereby assert the arbitrary prerogative right to priority of payment 
 of its debts. 
 Priority of claim agrainst receiver for taxes. 
 
 Cited in Re Ginsburg, 27 Misc. 755, 59 N. Y. Supp. 656, and Re Bowlby, 34 
 Misc. 319, 69 N. Y. Supp. 783, holding personal taxes with interest for default 
 preferred, on general assignment, over every claim except expense of accounting; 
 Gray v. Logan County, 7 Okla. 324, 54 Pac. 485, holding state's right to interest 
 and penalties on tax on insolvent bank's real estate continues paramount, during 
 receivership; State v. Central Trust Co. 36 C. C. A. 218, 94 Fed. 248, holding 
 statutory tax lien on personal property paramount to every other private lien, 
 prior or subsequent; Schenck v. Consumer's Coal Co. 26 Abb. N. C. 357, 14 N. Y. 
 Supp. 343, refusing to direct receiver to pay taxes, in preference to possible liens 
 
1 L.R.A. 260] L. R. A. CASES AS AUTHORITIES. 58 
 
 of employees for wages; Ledoux v. La Bee, 83 Fed. 764, holding receiver may 
 apply to court to test legality of tax; Re Tyler, 149 U. S. 184, 37 L. ed. 696, 13 
 Sup. Ct. Rep. 785, holding sheriff levying state tax on property in custody of 
 receiver appointed by Federal court, and detaining the property, guilty of con- 
 tempt; New York Terminal Co. v. Gaus, 204 N. Y. 516, 98 N. E. 11, Affirming 
 139 App. Div. 348, 124 N. Y. Su^p. 200, holding that franchise taxes assessed 
 during operation of ferry by receiver is paramount lien on ferry property in 
 hands of purchaser on foreclosure. 
 
 Cited in footnote to Illinois Trust & Sav. Bank v. Doud, 52 L. R. A. 481, which 
 holds no lien created on quasi-corporation funds superior to prior mortgage lien, 
 for loan not authorized by mortgage. 
 
 Cited in note (2 L.R.A. (N.S.) 1052) on priority of claims for taxes against 
 property in hands of receiver over recorded liens. 
 
 Distinguished in Wise v. L. & C. Wise Co. 153 X. Y. 510, 47 N. E. 788, holding 
 taxes not preferred, without statutory authority, over specific prior liens of cred- 
 itors obtained by levy. 
 .Powers and liabilities of receivers. 
 
 Cited in Wall v. Platt, 169 Mass. 400, 48 N. E. 270, holding railroad receivers 
 liable for damage by fire, during receivership; Farmers' Loan & T. Co. v. Northern 
 P. R. Co. 57 C. C. A. 537, 120 Fed. 877, upholding power of receivers of railroad 
 to contract to carry beyond their line. 
 Taxes as bearing interest. 
 
 Cited in State v. New England Furniture & Carpet Co. 107 Minn. 53, 119 N. W. 
 427, 16 A. & E. Ann. Cas. 470, holding in the absence of statute delinquent 
 personal taxes do not bear interest. 
 
 1 L. R. A. 264, AVERY v. EVERETT, 110 N. Y. 317, 18 N. E. 148. 
 Vested remainder. 
 
 Cited in Gilbert v. Taylor, 148 N. Y. 305, 42 N. E. 713, holding bequest of 
 income payable after death of life beneficiary, a vested one; Mitchell v. Knapp, 
 54 Hun, 504, 8 N. Y. Supp. 40, holding will bequeathing estate for joint support 
 of two persons during life to one, with remainder to other, creates vested re- 
 mainder; Re Miller, 11 App. Div. 341, 42 N. Y. Supp. 148, holding devise of 
 foe, with remainder to another upon death before age of twenty-one or without 
 issue surviving, not void for repugnancy; Bunyan v. Pearson, 8 App. Div. 86, 
 40 N. Y. Supp. 429, holding devise of land after death of life tenant if devisee 
 shall survive such life tenant vests on testator's death; Adams v. Becker, 2S 
 N. Y. S. R. 912, 8 N. Y. Supp. 260, holding conditional fee created by devise 
 with limitation over in case of death without issue; Chapman v. Moulton, 8 App. 
 Div. 66, 40 N. Y. Supp. 408, holding devise "subject to provisions contained 
 herein," with limitation over in event of death without issue, refers to death 
 after testator's; Walker v. Alverson, 87 S. C. 65, 30 L.R.A. (N.S.) 121, 68 S. E. 
 966, holding that person to whom land is devised after death of life tenant, with 
 provision that, if he shall predecease life tenant without heirs, it shall go to 
 another, takes vested remainder; Archer v. Jacobs, 125 Iowa, 476, 101 N. W 
 195, distinguishing between vested and contingent remainders; Re Farmer's Loan 
 & T. Co. 119 App. Div. 106, 104 N. Y. Supp. 1127, 51 Misc. 164, 100 N. Y. Supp. 
 862, holding under a gift of a fund to a person with a proviso that if sueh person 
 -dies without issue it is to go to a third person, such third person is vested with 
 an estate in expectancy which will ripen into an absolute estate on death without 
 issue of the other person. 
 
 Cited in note (10 Eng. Rul. Cas. 820) as to when remainder is vested. 
 
59 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 270 
 
 Time to which contiiig-ency of death without insne in referable. 
 
 Cited in note (25 L.R.A. (X.S.) 1120) on time to which contingency of death of 
 legatee or devisee without child or issue, upou which gift conditioned is referable. 
 Civil death of convict. 
 
 Followed in Re Zeph, 50 Hun, 524, 3 N. Y. Supp. 460, denying letters of 
 -administration upon estate of life convict. 
 
 Cited in Stephani v. Lent, 30 Misc. 349, 63 N. Y. Supp. 471, holding payment 
 upon recognized authorization of convict "civilly dead" not recoverable as without 
 consideration; La Chapelle v. Burpee, 69 Hun, 440, 25 N. Y. Supp. 452, holding 
 convict for term of years, with civil rights suspended, may accept devise; Davis 
 v. Laning, 85 Tex. 41, 18 L. R. A. 84, 34 Am. St. Rep. 784, 19 S. W. 846, holding 
 sentence to life imprisonment not within statutes casting descent at death; 
 Schmidt v. Northern Life Asso. 112 Iowa, 44, 51 L. R. A. 143, 84 Am. St. Rep. 
 323, 83 N. W. 800, holding children of beneficiary cannot take as her heirs during 
 her lifetime even though she is civilly dead; Smith v. Becker, 62 Kan. 542, 53 
 L. R. A. 143, 64 Pac. 70, holding civil death by sentence to life imprisonment does 
 not cast descent; McLaughlin v. McLaughlin, 228 Mo. 645, 137 Am. St. Rep. 680, 
 129 S. W. 21, holding void, divorce decree against convict investing wife with 
 his realty, where -he was not in court through a trustee. 
 
 Cited in notes (18 L.R.A. 84) on civil deaths in United States; (25 L.R.A. 
 (N.S.) 1172) on effect of civil death; (8 Eng. Rul. Cas. 171) on rights of one 
 civilly dead by reason of imprisonment. 
 
 Distinguished in Re Donnelly, 125 Cal. 419, 73 Am. St. Rep. 62, 58 Pac. 61, 
 holding one sentenced to life imprisonment, without right of inheritance. 
 
 1 L. R. A. 270, PHARIS v. GERE, 110 N. Y. 336, 18 N. E. 135. 
 
 Reargument denied in 112 N. Y. 408, 20 N. E. 551. 
 Forcible entry and detainer. 
 
 Cited in Bach v. New, 23 App. Div. 549, 48 N. Y. Supp. 777, holding violence 
 necessary to support action; Fults v. Munro, 202 N. Y. 42, 37 L.R.A. (N.S.) 605, 
 95 X. E. 23, holding that force used must be unusual and tend to bring about a 
 breach of the peace. 
 
 Cited in note (121 Am. St. Rep. 397) on right of civil action for forcible entry 
 and detainer. 
 Committee of lunatic. 
 
 Cited in Walrath v. Abbott, 75 Hun, 452, 27 N. Y. Supp. 529, holding com- 
 mittee without power to accept assignment of mortgage in part payment of 
 lunatic's property ordered sold by court; Re Board of Street Opening. 89 Hun. 
 528, 35 N. Y. Supp. 409, holding committee of insane tenant by entirety not 
 entitled to any portion of award in condemnation proceedings; People ex rel. 
 Canaday v. Williams, 90 Hun, 505, 36 N. Y. Supp. 65, holding right of committee 
 to take title in his own name for lunatic, doubtful; Kent v. West, 16 App. Div. 
 498, 44 N. Y. Supp. 901, holding county court may consent to action against 
 committee of lunatic appointed by it; Kent v. W T est, 33 App. Div. 116, 53 N. Y. 
 Supp. 244, holding committee takes no title to estate of lunatic; Johnson v. 
 Ayres, 18 App. Div. 499, 46 N. Y. Supp. 132, holding sureties not bound for 
 committee's misappropriation of funds from unauthorized sale of real estate: 
 Ward v. Rogers, 51 Misc. 300, 100 N. Y. Supp. 1058, holding a committee of a 
 lunatic is not liable in his representative capacity for his negligence in care of 
 lunatic's lands which causes an injury to a third person; Rooney v. People's 
 Trust Co. 61 Misc. 161, 114 N. Y. Supp. 612, holding committee of a lunatic 
 is personally liable to tenant of lunatic's premises for his negligence in failing 
 
1 L.R.A. 270] L. R. A. CASES AS AUTHORITIES. GO 
 
 to keep in repair; Newton v. Evers, 68 Misc. 357, 123 N. Y. Supp. 1009, holding 
 that deed by committee of lunatic not in strict conformity with Code is void; 
 Scribner v. Young, 111 App. Div. 816, 97 N. Y. Supp. 866, holding the committee 
 of a lunatic cannot authorize sale of timber on lands of lunatic without permis- 
 sion of court; Re Eisenberg, 117 Fed. 787; Grant v. Humbert, 114 App. Div. 464, 
 100 N. Y. Supp. 44, on nature of committee's interest in property of lunatic. 
 Cited in note (8 L.R.A. (N.S.) 437) on power of guardian or committee to bind 
 incompetent or his estate by contract. 
 Appointment. 
 
 Cited in note (13 L. R. A. 758) on mere mental weakness as justification for 
 appointment of guardian. 
 
 1 L. R. A. 273, PEOPLE v. McQUADE, 110 N. Y. 284, 18 N. E. 156. 
 Peremptory challenge by the people. 
 
 Cited in People v. McGonegal, 136 N. Y. 66, 48 N. Y. S. R. 901, 32 N. E. 616, 
 holding prosecution may reserve peremptory challenges until after challenge for 
 actual bias of both sides; People v. Elliott, 16 N. Y. Grim. Rep. 229, 73 N. Y. 
 Supp. 279, holding it not error in allowing a peremptory challenge by district 
 attorney to eleventh juror after twelve have been accepted but not sworn. 
 
 Distinguished in People v. Elliott, 66 App. Div. 180, 73 N. Y. Supp. 279, up- 
 holding peremptory challenge by people after juror's acceptance, in absence of 
 objection to order of challenge. 
 Bearing of unused peremptory challenges on erroneous ruling as to bias. 
 
 Cited in Santee v. Standard Pub. Co. 36 App. Div. 557, 55 N. Y. Supp. 361, 
 holding unused peremptory challenges and a fair trial, no cure for court's errone- 
 ous exclusion of competent juror; Burch v. Southern P. Co. 32 Nev. 105, 104 
 Pac. 225, Ann. Cas. 1912 B, 1166, holding denial of challenge of juror for cause 
 not prejudicial error, if party has unused peremptory challenges. 
 
 Distinguished in People v. Larubia, 140 N. Y. 90, 35 N. E. 412, and People v. 
 Price, 53 Hun, 189, 6 N. Y. Supp. 833, holding defendant using peremptory chal- 
 lenge after court's ruling not injured, having challenges enough left. 
 Substantial statutory rights of defendant. 
 
 Cited in Re Taylor, 8 Misc. 172, 28 N. Y. Supp. 500, holding witness not 
 excusable from testifying before grand jury where evidence not to be used against 
 him. 
 Review-ability of ruling on challenge to juror. 
 
 Cited in People v. Flaherty, 27 App. Div. 539, 50 N. Y. Supp. 574, holding 
 ruling not review-able unless evidence shows actual bias; People v. McGonegal, 
 136 N. Y. 70, 32 N. E. 616, holding question of competency of jurors on evidence 
 produced one of fact and not reviewable; Stevens v. Union R. Co. 26 R. I. 103. 
 66 L.R.A. 470, 58 Atl. 492, holding that court allowed a greater number of chal- 
 lenges than allowed by law is not ground for a new trial where no prejudicial 
 error is shown; People v. Wolter, 203 N. Y. 491, 97 N. E. 30, holding that over- 
 ruling by trial judge of challenge to juror on ground of holding opinion is conclu- 
 sive. 
 
 Distinguished in Butler v. Glens Falls, S. H. & Ft. E. Street R. Co. 121 N. Y. 
 117, 24 N. E. 187, holding court cannot review ruling on challenge for favor 
 except in absence of any evidence to sustain it. 
 Competency of juror. 
 
 Cited in People v. McLaughlin, 2 App. Div. 429, 37 N. Y. Supp. 1005, holding 
 court must sustain challenge if satisfied juror cannot act impartially: People v. 
 Wilmarth, 156 N. Y. 567, 51 N. E. 277, holding overruling of challenge for bias 
 
61 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 273 
 
 error of law, juror failing to declare opinions weald not influence verdict; 
 Williams v. United States, 35 C. C. A. 373, 93 Fed. 400, holding overruling of 
 challenge error, juror's ability to disregard prejudice being doubtful; People v. 
 Fanshawe, 137 N. Y. 77, 32 N. E. 1102, Affirming 65 Hun, 94, 19 N. Y. Supp. 865, 
 holding juror stating that he would hesitate to convict on circumstantial evidence 
 showing guilt beyond reasonable doubt, properly excluded; People v. Miller, 81 
 App. Div. 256, 80 N. Y. Supp. 1070, holding juror with opinion as to guilt of 
 accused disqualified, when not shown that it would not influence his verdict; 
 People v. Fanshawe, 8 N. Y. Crim. Rep. 348, 19 N. Y. Supp. 865, holding court 
 did not err in excluding a proposed juror who states that he will follow his own 
 view as to the weight to be given to circumstantial evidence; People v. Me- 
 Laughlin, 11 N. Y. Crim. Rep. 107, 37 N. Y. Supp. 1005; People v. Wilmarth, 13 
 N. Y. Crim. Rep. 287, on the existence of an opinion as to guilt or innocence 
 of accused as prima facie constituting a disqualification. 
 
 Cited in notes (35 L.R.A. (N.S. ) 1013) on opinion gained from newspaper as 
 disqualifying juror in criminal case; (40 L. ed. U. S. 238) on disqualification of 
 jurors by reason of previously formed opinions. 
 
 Distinguished in People v. McGonegal, 136 N. Y. 67, 32 N. E. 616, holding 
 record did not show any uncertainty as to mental condition of juror objected to. 
 Acquaintance with counsel as affecting bins. 
 
 Cited in Santee v. Standard Pub. Co. 36 App. Div. 557, 55 N. Y. Supp. 361, 
 holding friendship of juror's partner for defendant's attorney no ground for 
 exclusion. 
 
 Admissiltility of declarations or acts of co-conspirator. 
 
 Cited in Douglas v. McDermott, 21 App. Div. 13, 47 N. Y. Supp. 336, holding 
 subsequent declarations of alleged coconspirator, no part of res gestce, inadmissi- 
 ble; People v. Butler, 62 App. Div. 513, 71 N. Y. Supp. 129, holding subsequent 
 acts and declarations of alleged accomplice inadmissible; People v. Kief, 126 
 X. Y. 663, 27 N. E. 556, Affirming 58 Hun, 340, 11 N. Y. Supp. 926, holding 
 acts or statment8 of one defendant prior or subsequent to conspiracy inadmissible 
 against others; People v. McKane, 143 N. Y. 470, 38 N. E. 950, holding acts or 
 declarations of conspirators in furtherance of common purpose admissible; 
 Jenkins v. State, 35 Fla. 821, 48 Am. St. Rep. 267, 18 So. 182, holding subsequent 
 declarations and acts of confederate inadmissible; State v. Bowker, 26 Or. 311, 
 38 Pac. 124, holding inadmissible conviction of coindictee previously tried; 
 Brown v. United States, 150 U. S. 98, 37 L. ed. 1013, 14 Sup. Ct. Rep. 37, and 
 Connecticut Mut. L. Ins. Co. v. Hillmon, 46 C. C. A. 673, 107 Fed. 839, holding 
 narrative of ended conspiracy by coconspirator inadmissible; People v. Doody, 
 72 App. Div. 392, 76 N. Y. Supp. 606 (dissenting opinion), as to inadmissibility 
 of proof that another than defendant had pleaded guilty to unconvicted crime; 
 Lederer v. Adler, 46 Misc. 566, 92 N. Y. Supp. 827; People v. Kief, 4 Silv. Ct. 
 App. 450, 27 N. E. 556, holding acts and statements of alleged conspirators 
 prior to the formation or subsequent to the termination of the conspiracy are 
 inadmissible as evidence against co-conspirators; People v. Butler, 15 N. Y. Crim. 
 Rep. 511, 71 N. Y. Supp. 129, holding the acts and declarations of an alleged 
 accomplice were not admissible against accused in prosecution for arson; People 
 v. Doody, 16 N. Y. Crim. Rep. 490, 76 N. Y. Supp. 606 (dissenting opinion), 
 on the inadmissibility in a prosecution for perjury of evidence given by accom- 
 plice as to other crime; People v. McKane, 9 N. Y. Crim. Rep. 388, on when acts 
 and declarations of conspirators are admissible in evidence. 
 
1 L.R.A. 281] L. R. A. CASES AS AUTHORITIES. 62 
 
 1 L. R. A. 281, MILLIKEN v. WESTERN U. TELEG. CO. 110 N. Y. 403, 18 
 
 N. E. 251. 
 Facts admitted by demurrer. 
 
 Cited in Seacord v. Pendleton, 55 Hun, 582. 9 N. Y. Supp. 46, and Cahill Iron 
 Works v. Pemberton, 30 Abb. N. C. 453, 27 X. Y. Supp. 929, holding truth of 
 allegations must be assumed on demurrer; Arrow S. S. Co. v. Bennett, 73 Hun, 
 84, 25 N. Y. Supp. 1029; Pettibone v. Moore, 75 Hun, 463, 27 N. Y. Supp. 455; 
 Hatch v. Matthews, 83 Hun, 350. 31 N. Y. Supp. 926; National Cash Register 
 Co. v. Besch, 51 App. Div. 102, 64 N. Y. Supp. 462; Manning v. Wells, 8 Misc. 
 646, 29 N. Y. Supp. 1044; Wessels v. Carr, 16 Misc. 441, 38 N. Y. Supp. 600, 
 15 App. Div. 3.60; Trueb v. New York Asbestos Mfg. Co. 16 Misc. 483, 38 N. Y. 
 Supp. 604; D'Andre v. Zimmermann, 17 Misc. 359, 39 N. Y. Supp. 1086; Reilly 
 v. Poerschke, 19 Misc. 615, 44 N. Y. Supp. 422; Phenix Xat. Bank v. A. B. Cleve- 
 land Co. 34 N. Y. S. R. 501, 11 N. Y. Supp. 873; Bottom v. Chamberlain, 21 
 Misc. 558, 47 N. Y. Supp. 733; McCann v. Hazard, 36 Misc. 9, 72 X. Y. Supp. 45; 
 Woodruff v. Woodruff, 36 Misc. 17, 72 N. Y. Supp. 39; Reno Oil Co. v. Culver, 33 
 Misc. 719, 68 N. Y. Supp. 303; Keene v. Xewark Watch Case Material Co. 39 
 Misc. 8, 78 N. Y. Supp. 753; Budd v. Howard Thomas Co. 40 Misc. 55, 81 X. Y. 
 Supp. 152; Williamson v. Wager, 90 App. Div. 190, 86 X. Y. Supp. 684, requiring 
 assumption as true, of facts reasonably to be implied from allegations; Moon v. 
 Allen, 82 Minn. 95, 84 N. W. 654 (dissenting opinion), on the same point; 
 Fahr v. Manhattan R. Co. 9 Misc. 59, 29 N. Y. Supp. 1, holding implied fact must 
 appear by reasonable and fair intendment; Delano v. Rice, 21 Misc. 715, 48 X. Y. 
 Supp. 130, holding counterclaim sufficient on demurrer if cause of action infer- 
 able from allegations; Stewart v. Blatchley, 8 Misc. 476, 29 X. Y. Supp. 547, 
 holding that demurrer admits all relative facts well pleaded: United States Xat. 
 Bank v. Homestead Bank, 46 X. Y. S. R. 174, 18 X. Y. Supp. 758, and Lake v. 
 Sweet, 45 N. Y. S. R. 370, 18 N. Y. Supp. 342, holding complaint not demurrable 
 for imperfect or informal averments, indefiniteness, or argumentative statements; 
 Odell v. Clyde, 38 App. Div. 335, 57 N. Y. Supp. 126, holding on demurrer allega- 
 tion of delivery of note implies delivery by maker; Stieglitz v. Belding, 20 Misc. 
 300, 45 N. Y. Supp. 670, holding duplicitous answer not open to demurrer; 
 Johnson v. Golder, 132 N. Y. 121, 30 N. E. 376, holding complaint not demurrable 
 for lack of precision in allegations as to death of person, where inference of 
 death reasonable; Cahill Iron Works v. Pemberton, 30 Abb. X. C. 453, 27 X. Y. 
 Supp. 927; Candee v. Baker, 131 App. Div. 642, 116 N. Y. Supp. 55, on a de- 
 murrer as admitting to be true the facts pleaded as well as facts fairly and 
 reasonably inferrable from those pleaded; Potter v. Gilbert, 130 App. Div. 637, 
 115 N. Y. Supp. 425, holding complaint in an action against an architect by one 
 receiving injuries from the fall of a wall did not state a cause of action where 
 it alleged the plans were defective but did not allege the collapse of the wall 
 was the result thereof or that the architect permitted or knew of a departure 
 from his plans; Stieglitz v. Belding, 26 N. Y. Civ. Proc. Rep. 315, 45 N. Y. Supp. 
 670, holding the duplicity of a pleading was not open to attack on demurrer 
 where a defense was disclosed by the averments; Motley v. Mercantile Trust Co. 
 51 Misc. 462, 100 N. Y. Supp. 281; Trueb v. New York Abestos Mfg. Co. 25 X. Y. 
 Civ. Proc. Rep. 347, 38 X. Y. Supp. 604, on necessity that a pleading be liberally 
 construed on demurrer. 
 
 Distinguished in Eichner v. Bowery Sav. Bank, 78 X. Y. S. R. 333, 44 X. Y. 
 Supp. 332, holding complaint against bank for not paying check demurrable where 
 it fails to allege indorsement, certification, and due presentment for payment. 
 Damug-es for nondelivery of telegram. 
 
 Cited in McPeek v. Western U. Teleg. Co. 107 Iowa, 362, 43 L. R. A. 218, 70* 
 
63 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 281 
 
 Am. St. Rep. 205, 78 N. W. 63, holding injured party not limited to damages 
 which might reasonably have been within contemplation of parties. 
 
 Cited in note (38 L. ed. U. S. 883) on damages for error in telegraph message, 
 or failure to deliver. 
 DII r.i as to telegrams. 
 
 Cited in Western U. Teleg. Co. v. Millsap, 135 Ala. 417, 33 So. 160, holding 
 company liable to sendee for failure to deliver message sent by undisclosed agent 
 of sendee. 
 
 Cited in footnotes to Western U. Teleg. Co. v. Barefoot, 64 L. R. A. 491, which 
 holds action maintainable by agent against company for nondelivery of telegram 
 to principal; Shingleur v. Western U. Teleg. Co. 30 L. R. A. 444, holding right 
 of action for mistake in telegram as to sale by agent lost by ratification with 
 notice; Western U. Teleg. Co. v. Short, 9 L. R. A. 744, which holds failure of 
 company to deliver message as received, prima facie evidence of negligence ; 
 McCornick v. Western U. Teleg. Co. 38 L. R. A. 684, which holds company not 
 liable to stranger acting on mistake in telegram. 
 
 Cited in notes (30 L.R.A. (N.S.) 1119, 1121) on right of addressee of telegram 
 to sue for delay in delivery; (27 Am. St. Rep. 924, 925) on duty of telegraph 
 company to find addressee; (24 Eng. Rul. Cas. 783, 785) on addressee's right of 
 action for mistake in telegram. 
 
 Distinguished in Riley v. Western U. Teleg. Co. 6 Misc. 227, 26 N. Y. Supp. 
 532, which holds that telegraph company may stipulate against liability for 
 delay beyond sum paid for message. 
 Duty to deliver telegram. 
 
 Cited in Harper v. W T estern U. Teleg. Co. 92 Mo. App. 312, holding telegraph 
 company may contract to deliver message otherwise than as directed in message 
 itself. 
 
 Cited in note (15 L. R. A. 130) on duty of telegraph company to find person 
 addressed. 
 Maintenance of action by undisclosed principal. 
 
 Cited in Wells v. Western U. Teleg. Co. 144 Iowa, 617, 24 L.R.A.(N.S.) 1051 r 
 138 Am. St. Rep. 317, 123 X. W. 371, holding an undisclosed principal of the 
 addressee of a telegram may recover damages in an action of tort for the negli- 
 gence of the telegraph company in sending a forged telegram; Moore v. Vulcanite 
 Portland Cement Co. 121 App. Div. 673, 106 N. Y. Supp. 393, on right of undis- 
 closed principal to maintain an action on a contract entered into by agent in his 
 own name; Western U. Teleg. Co. v. Schriver, 4 L.R.A.(N.S.) 686, 72 C. C. A. 
 596, 141 Fed. 548, on the duty owed by a telegraph company to the undisclosed 
 principal of the addressee. 
 
 Distinguished in Western U. Teleg. Co. v. Potts, 120 Tenn. 45, 19 L.R.A.(N.S.> 
 481, 127 Am. St. Rep. 991, 113 S. W. 789, holding damages for mental anguish 
 could not be recovered by an undisclosed principal for delay in the transmission- 
 of a telegram though both the sender and sendee are his agents. 
 Implied obligation to pay for services. 
 
 Cited in Baer v. Koch, 2 Misc. 335, 21 N. Y. Supp. 974, holding, in absence 
 of agreement, law implies liability for reasonable compensation for real estate 
 broker's services. 
 
 Cited in note (6 Eng. Rul. Cas. 42) on implied obligation to pay for services. 
 Sufficiency of complaint for breach of contract. 
 
 Cited in Chicago Crayon Co. v. Slattery, 68 Misc. 152, 123 N. Y. Supp. 987, 
 holding insufficient complaint for breach of bond of surety alleging account 
 
1 L.R.A. 281] L. K. A. CASES AS AUTHORITIES. 64 
 
 stated between principal and employer, sum due, demand on principal, refusal, 
 demand on surety and amount due from surety. 
 
 1 L. R. A. 285, SCRANTON ELECTRIC LIGHT & HEAT CO.'S APPEAL, 122 
 
 Pa. 154, 9 Am. St. Rep. 79, 15 Atl. 446. 
 Unconscionable demand in <-<|iiity. 
 
 Cited in Barnes v. Starr, 64 Conn. 155, 28 Atl. 980, refusing to cancel ante- 
 nuptial contract made to deceive heirs apparent; Hayes v. Davis, 23 Nev. 321, 
 46 Pac. 888, refusing to enjoin issuance of duplicate of lost certificate of county 
 indebtedness. 
 Strict construction of exclusive corporate privileges. 
 
 Cited in Warren Gaslight Co. v. Pennsylvania Gas Co. 161 Pa. 513, 29 Atl. 
 101, Affirming Warren Gaslight Co. v. Pennsylvania Gas Co. 13 Pa. Co. Ct. 312; 
 Circleville Light & P. Co. v. Buckeye Gas Co. 69 Ohio St. 271, 69 N. E. 436, 
 holding exclusive authority to supply artificial gas light not to prevent use of 
 natural gas; Re Pittsburg Illuminating Gas Co. 16 Pa. Co. Ct. 438, 4 Pa. Dist. 
 R. 302, construing doubtful language of statute granting exclusive privileges, 
 against such grant; Re Home Electric Co. 11 Pa. Co. Ct. 180, 1 Pa. Dist. R. 98, 
 29 W. N. C. 384, holding that under statutes electric light companies do not have 
 exclusive privileges; Consolidated Gas Co. v. Mitchell, 1 Dauphin Co. Rep. 75, 
 holding grant of exclusive privileges not intended where, in nature of case, they 
 could not be obtained; Baily v. Philadelphia, 20 Pa. Co. Ct. 179, 6 Pa. Dist. R. 
 732, holding grant of exclusive rights to supply and distribute gas applies to 
 manufactured gas only; Armstrong Water Co. v. Rayburn Water Co. 24 Pa. Co. 
 Ct. 19, holding exclusive privilege of supplying water limited to particular district 
 mentioned ia grant; Bienville Water Supply Co. v. Mobile, 186 U. S. 219, 46 L. 
 ed. 1135, 22 Sup. Ct. Rep. 820, and Mobile v. Bienville Water Supply Co. 130 Ala. 
 383, 30 So. 445, holding grant of franchise to water company not prevent sub- 
 sequent grant of franchise to city; Cumberland Gaslight Co. v. West Virginia 
 & M. Gas Co. 110 C. C. A. 383, 188 Fed. 592, holding that corporation having 
 exclusive franchise to use streets to pipe manufactured gas for lighting cannot 
 exclude another corporation from use of streets for natural gas for fuel and 
 lighting; Allegheny County Light Co. v. Booth, 216 Pa. 567, 9 L.R.A.(X.S.) 405, 
 66 Atl. 72, holding complainant company incorporated for the purpose of the 
 manufacturing and supply of light was not thereby authorized to supply light by 
 electricity; Middlecreek Electric Co. v. Hughes, 34 Pa. Co. Ct. 271, holding a 
 statute conferring the power of eminent domain upon fuel companies would not 
 enable electric light companies to acquire private land under such power; Com. 
 v. New Castle Electric Co. 11 Pa. Dist. R. 390, holding under an act taxing the 
 gross receipts of electric light companies, the receipts derived from the business 
 of supplying power was taxable; Com. ex rel. Atty. Gen. v. Consumers' Gas Co. 
 214 Pa. 80, 63 Atl. 463 (dissenting opinion), on grant of a privilege to corporation 
 as to be construed against it in case of intendments not obviously in its favor. 
 Ultra vires contracts. 
 
 Cited in notes (4 L. R. A. 747) on equitable suits against directors, as to 
 ultra vires contracts; (12 L. R. A. 168) on estoppel of corporation to deny 
 liability on its contracts; (6 L.R.A. 290) on doctrine of ultra vires; (111 Am. St. 
 Rep. 311) on implied power of corporations to borrow money and give evidence 
 of indebtedness and security therefor. 
 - Abnegation of franchise duty. 
 
 Cited in Montreal Park & I. R. Co. v. Chateaugay & X. R. Co. 35 Can. S. C. 59, 
 
65 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 289 
 
 on agreement by corporation to abstain from the exercise of its franchise as 
 being contrary to public policy and nonenforceable. 
 
 1 L. R. A. 287, HAMILTON v. DENNISON, 56 Conn. 359, 15 Atl. 748. 
 ftiiilit of action by one in possession of dominant estate. 
 
 Cited in Greist v. Amrhyn, 80 Conn. 290, 68 Atl. 521, holding one in possession 
 of premises to which an easement is appurtenant is not obliged to prove title 
 before he can remove obstructions of the easement as a nuisance; Schmoele v. 
 Betz, 212 Pa. 38, 108 Am. St. Rep. 845, 61 Atl. 525, holding a tenant for years in 
 possession might maintain an action in equity to protect his easement in an 
 alley on the premises; Robinson v. Hillman. 36 App. D. C. 251, holding that one 
 rightfully in possession of premises to which an easement is appurtenant is en- 
 titled to damages for its abridgment. 
 
 1 L. R. A. 289, WRIGHT v. BANK OF THE METROPOLIS, 110 N. Y. 237, 
 
 G Am. St. Rep. 536, 18 N. E. 79. 
 Measnre of damages for conversion of stock. 
 
 Cited in Burhorn v. Lockwood, 71 App. Div. 303, 75 N. Y. Supp. 828; Citizens' 
 Street R. Co. v. Robbins, 144 Ind. 684, 52 N. E. 916; Galigher v. Jones, 129 U. S. 
 202, 32 L. ed. 661, 9 Sup. Ct. Rep. 335; Griggs v. Day, 158 N. Y. 22, 52 N. E. 692; 
 Minor v. Beveridge, 141 N. Y. 403, 38 Am. St. Rep. 804, 36 N. E. 404; McKinley 
 v. Williams, 20 C. C. A. 321, 36 U. S. App. 749, 74 Fed. 103, all holding highest 
 price of stock converted, within reasonable time after conversion, measure of 
 damages; Smith v. Savin, 141 N. Y. 327, 36 N. E. 338, holding highest price 
 reached by stock illegally sold by one to whom pledgee pledged same, deducting 
 debt due to last pledgee from his pledgeor, measure of damages; Hubbell v. 
 Blandy, 87 Mich. 216, 24 Am. St. Rep. 154, 49 N. W. 502, raising, without 
 deciding, question whether price of stock at time of notice of conversion is 
 measure of damages; Kilpa trick v. Dean, 15 Daly, 196, 4 N. Y. Supp. 708, rais- 
 ing, without deciding, question as to measure of damages for conversion of coffee; 
 Langford v. Rivinus, 33 L. R. A. 252, footnote, p. 250, 21 C. C. A. 581, 45 U. S. 
 App. 79, 75 Fed. 959, holding actual value of judgment at time of conversion 
 measure of damages; Pickert v. Rugg, 1 N. D. 234, 46 N. W. 446, construing 
 strictly statute making highest market price between conversion and verdict 
 measure of damages, where action prosecuted with reasonable diligence: Marshall 
 v. Ferguson, 94 Mo. App. 180, 67 S. W. 935, holding loss not preventable by 
 reasonable precautions, measure of damages for agent's misconduct; Saxe v. 
 Penokee Lumber Co. 11 App. Div. 295, 42 N. Y. Supp. 69, and Watson v. Kirby, 
 112 Ala. 446, 20 So. 624, both holding proximate or necessary loss from breach 
 of contract as measure of damages; Lovell v. Shea, 28 Jones & S. 418, 18 N. Y. 
 Supp. 193, holding special value of stereotyped plates to owner's business, measure 
 of damages for conversion ; Briggs v. Jones, 8 Misc. 263, 28 N. Y. Supp. 709, 
 holding measure of damages applied by referee; Hurt v. Miller, 120 App. Div. 
 837, 105 N. Y. Supp. 775, holding a customer immediately repudiating a sale of 
 stock by his brokers cannot measure his damages by the highest market price 
 attained by similar contracts within a period of two weeks after the unauthorized 
 sale; Mullen v. J. J. Quinlan & Co. 195 N. Y. 115, 24 L.R.A.(N.S.) 514, 87 N. E. 
 1078, holding a recovery for the conversion of stock based upon the highest 
 market prices for a period covering two months was proper; Mclntyre v. Whitney, 
 139 App. Div. 559, 124 N. Y. Supp. 234, holding that measure of damages is 
 value of stock at time of conversion with interest, less indebtedness to broker; 
 Keller v. Halsey, 130 App. Div. 604, 115 N. Y. Supp. 564; Wiggin v. Federal Stock 
 & Grain Co. 77 Conn. 515, 59 Atl. 607, on the measure of damages recoverable 
 L.R.A. Au. Vol. I. 5. 
 
1 L.K.A. 289] L. B. A. CASES AS AUTHORITIES. 6 
 
 for the conversion of stocks; Ames v. Sutherland, 9 Ont. L. Rep. 636, on the 
 measure of damages for the wrongful conversion of stock as being the highest 
 price paid on the date of such conversion. 
 
 Cited in footnote to Woods v. Nichols, 48 L. R. A. 773, which holds damages 
 to vendor retaining title limited to balance due, less depreciation from authorized 
 use. 
 
 Distinguished in Barns v. Brown, 130 X. Y. 382, 29 X. E. 760, Reversing 55 
 Hun, 345, 8 X. Y. Supp. 834, holding only nominal damages recoverable for 
 breach of contract to deliver stock not in the market, having no actual or 
 market value; Rogers v. Wiley, 38 X. Y. S. R. 234, 14 X. Y. Supp. 622, holding 
 difference between price on illegal covering of "short" sale of stock and price 
 at time of order, to cover measure of damages. 
 Measure of damages for unauthorized purchase or sale of stocks. 
 
 Cited in Barber v. Ellingwood, 135 App. Div. 558, 120 X. Y. Supp. 947, on the 
 measure of damages recoverable for an unauthorized purchase of stock; Barber 
 v. Ellingwood, 137 App. Div. 713, 122 X. Y. Supp. 369, holding that measure of 
 damages for unauthorized sale of stock by broker is difference between price 
 received and highest price within reasonable time after notice of sale. 
 Appreciation of damages caused l>y varying market. 
 
 Cited in Harrison v. Craven, 188 Mo. 604, 87 S. W. 962, holding plaintiff could 
 not recover increased cost of material and labor, where defendant wrongfully 
 refused to convey property where time not of the essence of their contract. 
 Duty of injured party to prevent unnecessary damages. 
 
 Cited in Colvin v. McCormick Cotton Oil Co. 66 fe. C. 75, 44 S. E. 380, holding 
 one breaking contract chargeable only with such damages as could not have been 
 prevented by reasonable expense or exertion; Ling v. Malcom, 77 Conn. 526, 59 
 Atl. 698, on duty of party injured by the wrongful conversion of stock to make 
 his damages as small as he reasonably can; Emmerich v. Chegnay, 46 Misc. 457, 
 92 X. Y. Supp. 336, on necessity that person suffering damages by the act of 
 another to reduce his damages as much as possible. 
 
 Annotation cited in Pittsburg, J. E. & E. R. Co. v. Wakefield Hardware Co. 143 
 X. C. 57, 55 S. E. 422, on necessity that person injured by another's act reduce 
 his damages as much as possible. 
 
 Cited in note (21 Am. St. Rep. 122) on duty to reduce damages. 
 Performance of contract within reasonable time. 
 
 Cited in Abbey v. Mace, 46 X. Y. S. R. 765, 19 X. Y. Supp. 375; Arthur v. 
 Wright, 57 Hun, 23, 10 X. Y. Supp. 368; Little v. Banks, 77 Hun, 516, 29 X. Y. 
 Supp. 87, holding contract specifying no time of performance must be per- 
 formed within reasonable time. 
 Reasonableness of time. 
 
 Cited in Burnham v. Lawson, 118 App. Div. 392, 103 X. Y. Supp. 482, holding 
 a delay of twelve days in repudiating a wrongful sale of stock by broker was not 
 an unreasonable time where owner was not apprised of all the facts; Cohen v. 
 Xew York, 204 X. Y. 427, 39 L.R.A.(X.S.) 985, 97 X. E. 866, holding that four 
 hours is not lapse of reasonable time so as to charge city with negligence in 
 repair of defect in street from overflow of lake in park caused by unprecedented 
 rainstorm. 
 Questions for court. 
 
 Cited in Dimock v. United States Xat. Bank, 55 X. J. L. 303, 39 Am. St. Rep. 
 643, 25 Atl. 926, holding reasonable time question of law. where facts undis- 
 puted; Carney v. Xew York L. Ins. Co. 162 X. Y. 455, 49 L. R. A. 475, 76 Am. 
 St. Rep. 347, 57 X. E. 78, holding reasonableness on undisputed facts of contract 
 
67 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 293 
 
 under by-law, for court; O'Connor v. New York, 16 Daly, 60, 8 N. Y. Supp. 530 r 
 holding question of reasonable time for cleaning walks is for court, where fact* 
 undisputed; Brown v. McBride, 24 Misc. 236, 52 N. Y. Supp. 620, holding: 
 decision of fact for court where evidence undisputed, and different inferences not 
 reasonably to be drawn therefrom ; Wyantskill Knitting Co. v. Murray, 90 Hun r 
 557, 36 N. Y. Supp. 26, holding question of reasonable time to remove goods fron* 
 wharf, where facts undisputed, for court; Flagler v. Hearst, 62 App. Div. 27 r 
 70 N. Y. Supp. 956, holding question of conversion for court, facts being undis- 
 puted; O'Dell v. Hatfield, 40 Misc. 14, 81 X. Y. Supp. 158, holding question of. 
 probable cause in action for malicious prosecution, one for court; Langsner v. 
 German Alliance Ins. Co. 67 Misc. 412, 123 N. Y. Supp. 144; McCarty v. Natural 
 Carbonic Gas Co. 189 N. Y. 55, 13 L.R.A. (N.S.) 471, 81 N. E. 549, 12 A. & E, 
 Ann. Cas. 840 (dissenting opinion) ; Timlan v. Dil worth, 76 N. J. L. 572, 71 AtL 
 33, or. what constitutes a reasonable time as being a question for the court. 
 
 1 L. R. A. 293, PEOPLE v. KING, 110 N. Y. 418, 6 Am. St. Rep. 389, 18 N. E. 245. 
 Scope of police povrer, 
 
 Cited in People v. Budd, 117 N. Y. 11, 5 L. R. A. 564, 15 Am. St. Rep. 460, 22 
 N. E. 670 (distinguished in dissenting opinion), and Budd v. New York, 143 
 I . S. 531, 36 L. ed. 251, 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. 468, both hold- 
 ing statute fixing maximum grain elevator charges within police power; People 
 ex rel. Kemmler v. Durston, 119 N. Y. 577.. 7 L. R. A. 716, 16 Am. St. Rep. 859, 
 24 X. E. 6, holding statute inflicting death punishment by electricity valid; 
 People v. Ewer, 141 N. Y. 132. 25 L. R. A. 797, 38 Am. St. Rep. 788, 36 N. E. 4, 
 holding statute prohibiting employment or exhibition of girls under fourteen 
 a- dancers, or in theatrical exhibition, legitimate legislation; People v. Lochner r 
 177 X. Y. 157, 69 N. E. 373. upholding constitutionality of act limiting hours of 
 labor in bakeries; Viemeister v. White. 88 App. Div. 49, 84 N. Y. Supp. 712 r 
 upholding constitutionality of act prohibiting unvaccinated children from attend- 
 ing public schools; People v. Rosenberg. 67 Hun, 57, 60, 22 X. Y. Supp. 56 r 
 holding prohibition of fat rendering in cities, within police power; New York 
 Bd. of Fire Underwriters v. Whipple, 2 App. Div. 366, 37 X. Y. Supp. 712, holding- 
 assessment of expense of fire patrol upon persons in insurance business, within 
 police power; Geneva v. Geneva Teleph. Co. 30 Misc. 240, 62 N. Y. Supp. 172, 
 holding removal of telephone wires and conductors to underground conduits,, 
 within police power; Grannan v. Westchester Racing Asso. 153 N. Y. 461, 47 
 N. E. 896, Reversing 16 App. Div. 13, 44 N. Y. Supp. 790, holding franchise for 
 horse racing subject to state regulation; Buffalo v. Collins Baking Co. 24 Misc. 
 748. 53 N. Y. Supp. 968, holding ordinance limiting weight of loaf of bread 
 irrespective of price, unreasonable and void; State v. Schlenker, 112 Iowa, 650 r 
 51 L. R. A. 351, 84 Am. St. Rep. 360, 84 N. W. 698, holding state police powers 
 not limited by U. S. Const. 14th Amend.; People ex rel. Tyroler v. Warden of City 
 Prison, 157 X. Y. 147, 43 L. R. A. 276, 68 Am. St. Rep. 763, 51 N. E. 1006 (dis- 
 senting opinion), majority holding statute restricting ticket brokerage to ap- 
 pointed agents of transportation companies transcends police powers; People v. 
 Budd. 7 N. Y. Crim. Rep. 199, holding a statute fixing a maximum charge for 
 elevating grain is valid exercise of the police power; People ex rel. Annan v. 
 Walsh. 7 X. Y. Crim. Rep. 226 (dissenting opinion), on the validity of the exercise 
 of the police power by the legislature. 
 
 Cited in notes (21 L.R.A. 795) on constitutionality of statutes restricting con- 
 tracts and business; (62 Am. St. Rep. 290) on regulation of rates. 
 Civil rights. 
 
 Cited in Rhone v. Loomis, 74 Minn. 203, 77 N. W. 31, holding saloons, exfst- 
 
1 L.R.A. 293] L. R. A. CASES AS AUTHORITIES. 68 
 
 ing under authority of laws, properly subject of civil rights statute; Plessy v. 
 Ferguson, 163 U. S. 548, 41 L. ed. 260, 16 Sup. Ct. Rep. 1138, holding statute 
 requiring separation of white and colored railway passengers not violation of 
 U. S. Const. 14th Amend.; Burks v. Bosso, 81 App. Div. 532, 81 X. Y. Supp. 384, 
 holding bootblacking stand at entrance of large office building place of "public 
 accommodation," entitling colored man to right to have shoes shined; Brown v. 
 J. H. Bell Co. 146 Iowa, 99, 27 L.R.A.(N.S.) 410, 123 N. W. 231, Ann. Gas. 1912 
 B, 852, holding a concession at a pure food show, in refusing to serve negroes at 
 his booth does not violate any rights of the negroes; Collister v. Hayman, ]83 
 X. Y. 257, 1 L.R.A.(X.S.) 1192, 111 Am. St. Rep. 740, 76 X. E. 20, 5 A. & E. Ann. 
 Cas. 344, holding a clause in a theatre ticket declaring it void if resold on side- 
 walk was valid and binding on subsequent purchasers; Aaron v. Ward, 203 X. 
 Y. 356, 38 L.R.A.(X.S.) 206, 96 X. E. 736, on right of bathhouse keeper to deny 
 admission to persons; Cornell v. Huber, 102 App. Div. 293, 92 X. Y. Supp. 434, 
 holding a person to whom innkeeper has refused the privileges of a guest may 
 maintain an action for a breach of his common law liability; Jones v. Broadway 
 Roller Rink Co. 136 Wis. 598, 19 L.R.A.(X.S.) 909, 118 X. W. 170, holding 
 the exclusion of a colored person from a skating rink gave such person a cause 
 of action for an infringement of his civil rights; Fulton Light, H. & P. Co. v. 
 State, 65 Misc. 289, 121 X. Y. Supp. 536; Wright v. Hart, 103 App. Div. 228, 
 93 X. Y. Supp. 60 (dissenting opinion), on how provision of Constitution pro- 
 viding that no person shall be deprived "of life, liberty or property without 
 process of law" is to be construed. 
 
 Cited in notes (9 L.R.A. 589) on civil rights; guaranty without discrimina- 
 tion; (1 L.R.A.(X.S.) 1189) on right of manager to impose restrictions upon 
 admission to theater; (19 L.R.A.(X.S.) 907) on what are places of amusement 
 within civil rights acts; (110 Am. St. Rep. 536) on law of theatres and similar 
 shows; (25 Am. St. Rep. 876) on 14th amendment as to special privileges, bur- 
 dens and restrictions founded on race. 
 
 Distinguished in Younger v. Judah, 111 Mo. 310, 16 L. R. A. 561, footnote, p. 
 558, 33 Am. St. Rep. 527, 19 S. W. 1109, holding theater management, in absence 
 of statute, may require colored patrons to sit in balcony; People ex rel. Cisco v. 
 School Board, 161 X. Y. 600, 48 L. R. A. 114, 56 X. E. 81, Affirming 44 App. Div. 
 471, 61 X. \. Supp. 330, holding that colored children may be required to attend 
 separate schools, with equal accommodations. 
 Constitutionality of legislative enactments. 
 
 Cited in People ex rel. Kemmler v. Durston, 7 X. Y. Grim. Rep. 466, holding 
 an act providing for the infliction of the death penalty by means of electric 
 current was not in violation of a provision of constitution forbidding the in- 
 fliction of cruel and unusual punishments; MacMillen v. Middletown, 112 App. 
 Div. 87, 98 X. Y. Supp. 145, holding provision of charter relieving city from lia- 
 bility for injury from snow and ice on sidewalks unless written notice thereof 
 is given and there is a failure to remove within a reasonable time is uncon- 
 stitutional. 
 Denial of dne process of law. 
 
 Cited in Tyler v. Lansingburgh, 37 Misc. 605, 76 X. Y. Supp. 139, holding 
 deprivation of right of action by statute, denial; Williams v. Port Chester, 72 
 App. Div. 523, 76 X. Y. Supp. 631, holding thirty-day limitation on action against 
 village for personal injuries, denial ; Barry v. Port Jervis, 64 App. Div. 286, 
 72 X. Y. Supp. 104, holding requirement of notice to village within forty-eight 
 hours of personal injury, of intention to sue and time and place, denial. 
 
69 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 296 
 
 Sufficiency of Hidictment. 
 
 Cited in People v. Peck, 67 Hun, 572, 22 X. Y. Supp. 576, holding indictment 
 sufficient without stating circumstances not in statutory definition : People v. 
 Loclmer, 73 App. Div. 121, 76 N. Y. Supp. 306, holding indictment for statutory 
 misdemeanor, which follows statutory definition and states identifying circum- 
 stances, good; People v. Lowndes, 130 N. Y. 464, 29 N. E. 751, holding indict- 
 ment against nonresident for planting oysters insufficient without allegation that 
 it was for benefit of himself or other nonresident; People v. Farrel, 5 Silv. Sup. 
 Ct. 25, 8 N. Y. Supp. 230, holding charge of entry with force and arms sufficient 
 under statute saying "any force;" People v. Williams, 92 Hun, 357, 36 X. Y. 
 Supp. 511, holding indictment for perjury conveying meaning of words in statute 
 sufficient; People ex rel. Hunt v. Markell, 22 Misc. 608, 50 N. Y. Supp. 766, hold- 
 ing recorder's certificate of conviction, stating offense and time and place of 
 committing it, sufficient; People ex rel. Hunt v. Markell, 13 N. Y. Crim. Rep. 
 116, 50 N. Y. Supp. 766, holding a certificate of conviction of petit larceny 
 need not specify the articles stolen nor state from whom they were taken; 
 People v. Farrel, 5 Silv. Sup. Ct. 25, 8 N. Y. Supp. 230, holding an indictment 
 for forcible entry need not specify the particular acts or means employed by 
 accused; People v. Lochner, 16 N. Y. Crim. Rep. 522, 76 X. Y. Supp. 396; People 
 v. Peck, 10 X. Y. Crim. Rep. 376, 22 X. Y. Supp. 576, on it not being necessary 
 that indictment set forth other circumstances of a crime than is required by 
 statute 
 
 Cited in note (16 Am. St. Rep. 30) on sufficiency of indictment for statutory 
 offense. 
 "Wlint in a public purpose. 
 
 Cited in Sun Printing & Pub. Asso. v. New York, 8 App. Div. 272, 40 N. Y. 
 Supp. 607 (dissenting opinion), majority holding construction of rapid transit 
 railroad within city limits, a city purpose. 
 Kiiilit to compensation for property taken. 
 
 Cited in Pape v. Xew York & H. R. Co. 74 App. Div. 189, 77 X. Y. Supp. 725, 
 holding abutting owners entitled to compensation for taking of interest in street. 
 
 1 L. R. A. 296. CHAPMAX v. ROCHESTER, 110 X. Y. 273, 6 Am. St. Rep. 366, 
 
 18 X. E. 88. 
 
 N 11 i>n !!<* and their abatement Liability of private individuals and 
 corporations. 
 
 Cited in Millhiser v. Willard, 96 Iowa, 330, 65 N. W. 325, abating rendering 
 establishment offensive to adjacent owners, though general public similarly af- 
 fected; Trevett v. Prison Asso. 98 Va. 338, 50 L. R. A. 566, 81 Am. St. Rep. 727, 
 36 S. E. 373, holding prison association liable for discharging sewage into stream 
 used for domestic purposes and watering stock; Benscoter v. Huntington Valley 
 Camp Meeting Asso. 10 Kulp, 358, holding one draining privy into stream liable 
 for damages to lower proprietor; Mann v. Willey, 51 App. Div. 170, 64 X. Y. 
 Supp. 589, holding lower owner entitled to prevent discharge of sewage render- 
 ing water unfit for domestic purposes, though stream not yet used therefor; 
 Filson v. Crawford. 23 X. Y. S. R. 3b6, 5 X. Y. Supp. 884, holding injunction 
 against livery stable not prevented by previous existence of other stable; Mae- 
 Namara v. Taft, 196 Mass. 601, 13 L.R.A.(X.S.) 1045, 83 X. E. 310: Parker 
 v. American Woolen Co. 195 Mass. 601, 10 L.R.A. (X.S.) 586, 81 X. E. 468, hold- 
 ing an owner of land on a natural stream may enjoin an owner above him from 
 discharging noxious substances into where it renders the water unfit for use. 
 
 Cited in footnotes to Price v. Oakfield Highland Creamery Co. 24 L. R. A. 
 
1 L.R.A. 296] L. R. A. CASES AS AUTHORITIES. 70 
 
 333, which authorizes injunction against allowing filth from creamery to flow 
 on adjoining premises; Barnard v. Shirley, 24 L. R. A. 568, which holds owner 
 of artesian well entitled to permit water, after use by patients for bathing, to 
 flow into natural watercourse which is only practicable outlet; Barrett v. Mt. 
 -Greenwood Cemetery Asso. 31 L. R. A. 109, which authorizes injunction against 
 connecting cemetery drain with spring used for domestic purposes ; Cohen v. 
 New York, 4 L. R. A. 406, which holds storing of wagon in street, though under 
 license from city, a nuisance. 
 
 Cited in notes (13 L. R. A. 117) on pollution of waters; (7 L. R. A. 457; 
 12 L.R.A. 577; 13 L.R.A. 117) on damages for pollution of water of stream; 
 il Eng. Rul. Cas. 485) on liability to indictment or injunction of public service 
 corporation exceeding its powers in creating nuisances. 
 Liability of municipal corporations as to discharge of seirng-e. 
 
 Cited in Schriver v. Johnstown, 54 N. Y. S. R. 573, 24 N. Y. Supp. 1083. hold- 
 ing village liable for discharge of sewage on private property; Gillett v. Kinder- 
 hook, 77 Hun, 605, 28 N. Y. Supp. 1044, holding village liable for negligent dis- 
 charge of sewage and surface waters on private lands, injuring crops; Xe\v York 
 C. & H. R. R. Co. v. Rochester, 127 N. Y. 594, 28 N. E. 416, holding owner en- 
 titled to enjoin city from discharging sewage on private lands; Hooker v. Roches- 
 ter, 126 N. Y. 635, 4 Silv. Ct. App. 376, 26 N. E. 1043, holding right to injunction 
 against discharge of sewage follows from continuing character of injury; Moody 
 v. Saratoga Springs, 17 App. Div. 209, 45 N. Y. Supp. 365, holding village liable 
 to owner of premises near creek into which extension of village sewer discharged; 
 Butler v. Edgewater, 2 Silv. Sup. Ct. 4, 25 N. Y. S. R. 316, 6 N. Y. Supp. 174. 
 "holding village not entitled to destroy natural watercourse by discharging se\vagc 
 therein; Stoddard v. Saratoga Springs, 127 N. Y. 268, 27 N. E. 1030, holding 
 village liable for improper location of sewer outlet; Carmichael v. Texarkana, 94 
 Fed. 571, holding city liable for discharging sewage into stream through which it 
 is deposited on private lands; Winchell v. Waukesha, 110 Wis. 110, 84 Am. St. 
 Rep. 902, 85 N. W. 668, holding pollution of navigable stream creating public nui- 
 sance detrimental to riparian owner not authorized by authority to construct sewer : 
 Mansfield v. Balliett, 65 Ohio St. 474, 58 L. R. A. 636, 63 N. E. 86, holding city liabln 
 for dicharging sewage into natural watercourses, creating nuisance specially in- 
 jurious to lower proprietor; Nolan v. Xew Britain, 69 Conn. 678, 38 Atl. 703, 
 holding city liable for discharging sewage in stream rendering it unfit for do- 
 mestic purposes and watering stock; Platt Bros. v. Waterbury, 72 Conn. 552, 48 
 L. R. A. 705, 77 Am. St. Rep. 335, 45 Atl. 154, holding legislature has no power 
 to authorize city to discharge sewage into stream without compensating lower 
 proprietors; Butler v. White Plains, 59 App. Div. 36, 69 N. Y. Supp. 193. enjoin- 
 ing village from increasing pollution of stream by sewage, although not yet used 
 for domestic purposes ; Sammons v. Gloversville, 34 Misc. 460, 70 N. Y. Supp. 
 284, restraining city from polluting with sewage, stream polluted by others also; 
 Sammons v. Gloversville, 81 App. Div. 334, 81 N. Y. Supp. 466, holding owner of 
 land on creek 9 miles below city entitled to enjoin city from pollution of stream : 
 Donovan v. Royal, 26 Tex. Civ. App. 249, 63 S. W. 1054, holding that municipal 
 corporation may be enjoined from polluting stream with sewage; Fonda v. 
 Sharon Springs, 70 Misc. 104, 128 N. Y. Supp. 147, holding village liable for dis- 
 charge of sewage into creek rendering it unfit for cattle to drink; Markwardt v. 
 Guthrie, 18 Okla. 39, 9 L.R.A.(N.S.) 1153, 90 Pac. 26, 11 A. & E. Ann. Cas. 581, 
 holding a riparian owner may maintain an action against a municipal corpora- 
 tion for damages caused by the discharge of sewage into stream so as to destroy 
 its use. 
 
 Cited in footnote to Huffmire v. Brooklyn, 48 L. R. A. 421, which holds city 
 
71 L. R, A. CASES AS AUTHORITIES. [1 L.R.A. 29G 
 
 liable for destruction of oysters by discharge from sewer constructed under 
 legislative authority. 
 
 Cited in notes (41 L. R. A. 753) on correlative rights of upper and lower 
 proprietors as to use of stream for sewage; (48 L. R. A. 697) on right of mu- 
 nicipality to drain sewage into waters; (7 L. R. A. 465) on damages recoverable 
 for negligent construction of sewer. 
 
 Distinguished in concurring opinion in Sayre v. Newark, 60 N. J. Eq. 371, 
 48 L. R. A. 726, 83 Am. St. Rep. 629, 45 Atl. 985, Reversing 58 N. J. Eq. 147, 
 42 Atl. 1068, majority holding legislature empowered to authorize municipalities 
 to use tidal streams as sewer outlets. 
 As to other nuisances. 
 
 Cited in Wilson v. Boise City, 6 Idaho, 402, 55 Pac. 887, holding municipality 
 liable for damages caused by flooding lands by waters from artificial waterway; 
 Little v. Lenoir, 151 N. C. 418, 66 S. E. 337; Somerset Water, Light & Traction 
 v. Hyde, 129 Ky. 406, 111 S. W. 1005, on right of private person to restrain 
 a municipal corporation from maintaining a nuisance. 
 
 Cited in footnotes to Protestant Episcopal Church v. Anamosa, 2 L. R. A. 607, 
 which holds city liable for damage from grading street without ordinance author- 
 izing same; Miles v. Worcester, 13 L. R. A. 841, which holds city liable for en- 
 croachment on private property by retaining wall of school yard, though built 
 solely for public use; Long v. Elberton, 46 L. R. A. 428, which holds city liable 
 for nuisance from negligently keeping prison, but not for its erection ; Snider v. 
 St. Paul, 18 L. R. A. 151, which holds city not liable in private action for negli- 
 gence of agents in constructing city hall ; Duncan v. Lynchburg, 48 L. R. A. 
 331. which holds city not liable for pollution of stream by employees in operating 
 (]iiarry outside city limits; Hughes v. Auburn, 46 L. R. A. 636, which holds 
 city not liable for disease caused by negligence as to sewer system. 
 
 Cited in notes (7 L. R. A. 157) on liability of municipality for creating nui- 
 sance; (4 L. R. A. 594) on municipal liability for overflowing private lands; 
 (19 L. R. A. 454) on distinction between public and private functions of mu- 
 nicipalities in respect to liability for negligence; (84 Am. St. Rep. 917, 925) on 
 extent of municipal right to pollute waters. 
 
 Distinguished in Danaher v. Brooklyn, 51 Hun. 571, 4 N. Y. Supp. 312, holding 
 city not liable for death from unwholesome water in public well before notice 
 of impurity from health department. 
 Joinder of actions. 
 
 Cited in Downing v. Oskaloosa, 86 Iowa, 356, 53 N. W. 256, holding abatement 
 of permanent nuisance in action at law in which damages allowed, discretionary 
 with court. 
 For injury to person and to property. 
 
 Cited in Rosenheimer v. Standard Gaslight Co. 36 App. Div. 10, 55 N. Y. Supp. 
 192, holding gas company liable to adjoining owner for diminution in rental 
 value of property and impairment of health; Lamming v. Galusha, 135 N. Y. 244, 
 31 N. E. 1024, authorizing joinder with action to enjoin operation of railroad 
 in street, of action for personal injuries from such operation. 
 
 Cited in note (50 L. R. A. 163) on whether injuries both to person and to 
 property but one, or more than one, cause of action. 
 Estoppel by acquiescence. 
 
 Cited in Knox v. Metropolitan Elev. R. Co. 58 Hun, 521, 12 N. Y. Supp. 848. 
 and Galway v. Metropolitan Elev. R. Co. 128 X. Y. 153, 13 L. R. A. 795, 28 X. K. 
 479, holding injunction against operation of elevated railroad not barred by 
 mere acquiescence; Missouri v. Illinois, 180 U. S. 247, 45 L. ed. 514, 21 Sup. 
 
1 L.R.A. 296] L. R. A. CASES AS AUTHORITIES. 72 
 
 Ct. Rep. 331, holding state not barred, by acquiescing in construction of drainage 
 canal in other state, from preventing discharge of sewage to its detriment; 
 Syracuse Solar Salt Co. v. Rome, W. & O. R. Co. 67 Hun, 165, 22 N. Y. Supp. 321, 
 holding owner not estopped to claim land on which railroad constructed without 
 license, as against purchaser on foreclosure of mortgage. 
 
 Cited in footnote to Meiners v. Frederick Miller Brewing Co. 10 L. R. A. 586, 
 which holds defense of prescription unavailable in private action to abate public 
 nuisance. 
 
 i L. R. A. 299, MCCLELLAND v. NORFOLK SOUTHERN R. co. no N. Y. 469, 
 
 6 Am. St. Rep. 397, 18 N. E. 237. 
 Dependence of coupons upon bonds. 
 
 Cited in Batchelder v. Council Grove Water Co. 131 N. Y. 47, 29 N. E. 801, 
 holding principal of bonds not due on nonpayment of interest coupons, except as 
 provided in mortgage; Bailey v. Buchanan County, 115 N. Y. 301, 6 L. R. A. 564, 
 22 N. E. 155, holding coupons in possession of bondholder serve no independent 
 purpose; Haskins v. Albany & H. R. & Power Co. 74 App. Div. 32, 76 N. Y. 
 Supp. 667, holding detached coupons transferable by delivery, not subject to 
 conditions of bond and mortgage; Hudson Valley R. Co. v. O'Connor, 95 App. Div. 
 
 10, 88 N. Y. Supp. 742, on coupons as affected by detachment from the bonds; 
 Quackenbush v. Mapes, 123 App. Div. 246, 107 N. Y. Supp. 1047, on interest 
 coupons as partaking of the nature of the bond. 
 
 Limitation of action on coupons. 
 
 Cited in Smith v. Greenwich, 80 Hun, 120, 30 N. Y. Supp. 56, holding six years' 
 statute applies to actions on coupons of void bonds; Kelly v. Forty-second Street, 
 M. & St. N. Ave. R. Co. 37 App. Div. 508, 55 N. Y. Supp. 1096, holding twenty 
 years' statute applies to actions on coupons of sealed bonds. 
 Negotiable instruments. 
 
 Cited in Atlantic Trust Co. v. Crystal Water Co. 72 App. Div. 540, 76 N. Y. 
 Supp. 647, holding bonds secured by mortgage negotiable; Haskins v. Albany & 
 
 11. R. & Power Co. 74 App. Div. 32, 76 N. Y. Supp. 667, holding provision in 
 mortgage that coupons shall be transferable by delivery makes thorn negotiable; 
 Rolston v. Central Park, N. & E. River R. Co. 21 Misc. 441, 47 N. Y. Supp. 650, 
 upholding action on lost coupon in giving undertaking required in case of lost 
 negotiable instruments; D'Esterre v. Brooklyn, 90 Fed. 589, holding that bond- 
 holders take municipal bonds with knowledge of statute as to their negotiability; 
 Brooke v. Struthers, 110 Mich. 571, 35 L. R. A. 541, 68 N. W. 272, holding nego- 
 tiability of note destroyed by provision in accompanying mortgage for payment 
 of taxes by mortgagor; National Salt Co. v. Ingraham, 58 C. C. A. 361, 122 Fed. 
 45, holding transferee of certificate of indebtedness, negotiable in form, charged 
 with notice of agreement referred to therein; National Salt Co. v. Ingraham, 74 
 C. C. A. 479, 143 Fed. 808, holding the negotiability of certificates of indebted- 
 ness of a corporation containing an unconditional promise to pay is not impaired 
 by the fact that by terms maker may pay them before maturity; Klots Throw- 
 ing Co. v. Manufacturers' Commercial Co. 30 L.R.A.(N.S.) 43, 103 C. C. A. 305. 
 179 Fed. 815, holding that note, on its face, subject to terms of contract between 
 maker and payee, is not negotiable. 
 
 Cited in footnotes to Internal Improvement Fund v. Lewis, 26 L. R. A. 743, 
 which holds coupons payable to bearer may be negotiated separately from bond 
 
 Distinguished in Guilford v. Minneaoplis, S. Ste. M. & A. R, Co. 48 Minn. 572. 
 31 Am. St. Rep. 694, 51 N. W. 658, holding general recital in bond that it is 
 secured by trust deed does not destroy negotiability; Hibbs v. Brown, 112 App,. 
 
73 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 303 
 
 Div. 221, 98 N. Y. Supp. 353, holding bonds of joint stock association on which 
 stockholders are not liable are not non-negotiable. 
 Waiver of right to sue. 
 
 Cited in Boley v. Lake Street Elev. R. Co. 64 111. App. 312, holding bond- 
 holders may vest right to sue, on default, in trustee. 
 Effect of recitals In instruments. 
 
 Distinguished in Monks v. Provident Inst. for Savings, 64 N. J. L. 89, 44 Atl. 
 968, holding that whether recital in deed shall have effect of covenant depends 
 on intent of parties. 
 
 1 L. R. A. 303, HAYES v. MASSACHUSETTS MUT. L. INS. CO. 125 111. 626, 
 
 18 N. E. 322. 
 Joinder of counts in case and trover. 
 
 Cited in Mutual L. Ins. Co. v. Allen, 212 111. 136, 72 N. E. 200, Affirming 113 
 111. App. 97, on it being permissible to join counts in trover and in case. 
 Trover for conversion of policy. 
 
 Cited in Fraternal Army of America v. Evans, 114 111. App. 587, holding trover 
 will lie against an insurance company retaining possession of a policy wrongfully 
 obtained by them. 
 Powers of trustees and guardians. 
 
 Cited in Montgomery v. Rauer, 125 Cal. 231, 57 Pac. 894, holding settlement 
 between guardian and third person not binding on ward, unless fair and free from 
 mistake; Manion v. Ohio Valley R. Co. 99 Ky. 506, 36 S. W. 530, holding guardian 
 authorized to compromise claim for personal injuries to ward ; Schmidt v. Shaver, 
 196 111. 115, 89 Am. St. Rep. 250, 63 N. E. 655, Reversing 98 111. App. 425, holding 
 probate court may authorize guardian to sell uncollectible judgment for actual 
 value; Knights Templars & M. Life I. Co. v.'Crayton, 209 111. 558, 70 N. E. J066, 
 Affirming 110 111. App. 656, holding guardian without power, unless authorized 
 by court, to release demand due ward; Loyal Americans v. Edwards, 106 111. App. 
 402, denying power of guardian, without court order, to surrender money of 
 ward, recovered from insurance company; Hunting v. Safford, 183 Mass. 160. 
 66 N. E. 642,, holding that trustees could not avail themselves of fraudulent pay- 
 ment to estate of infant receiving no benefit from it; Bunnell v. Bunnell, 111 Ky. 
 581, 64 S. W. 420, holding a compromise by guardian on behalf of ward is not 
 binding on infant where it surrenders infant's title to property and provides for 
 its division among persons having no semblance of title. 
 
 Cited in notes (35 L.R.A. (X.S.) 1124) on right of guardian to surrender policy 
 in favor of ward; (89 Am. St. Rep. 290, 291) on common law powers of guardians. 
 
 Distinguished in Maclay v. Equitable Life Assur. Soc. 152 U. S. 505, 38 L. ed. 
 532, 14 Sup. Ct. Rep. 678, holding guardian authorized to surrender policy on 
 third person's life on receiving surrender value. 
 Conditions precedent to action of trover. 
 
 Cited in Star Accident Co. v. Sibley, 57 111. App. 322, holding it unnecessary 
 to tender back money received on settlement of a claim induced by fraud before 
 suing for balance; Michigan Mut. L. Ins. Co. v. Naugle, 130 Ind. 86, 29 X. E. 
 393, holding one fraudulently induced to settle policy entitled to sue for balanc 
 without returning amount received. 
 Necessity of demand. 
 
 Cited in Sehnert v. Koenig, 99 111. App. 514, holding demand necessary before 
 bringing trover against one who came rightfully into possession; Metcalfe v. 
 Dickman. 43 111. App. 286, holding demand necessary before bringing trover 
 against bona fide purchaser from apparent owner in possession; Hoff v. 
 
1 L.R.A. 303] L. R. A. CASES AS AUTHORITIES. 74 
 
 Coumeight, 14 Misc. 315, 35 X. Y. Supp. 1052, holding allegation of refusal after 
 due demand necessary, in absence of allegation that possession tortiously ac- 
 quired; Camp v. Unger, 54 111. App. 655, holding demand unnecessary after actual 
 conversion; McConnell v. Hamp, 147 111. App. 59, on a demand as not being 
 essential to action of trover. 
 
 Cited in note (9 L. R. A. 817) on necessity of demand before bringing trover. 
 Measure of damages for conversion. 
 
 Cited in Olds v. Chicago Open Bd. of Trade, 33 111. App. 448, holding damages 
 for conversion of intrinsically valueless paper, which is evidence of title to 
 valuable interest, the value of such interest. 
 
 Cited in footnotes to Griggs v. Day, 18 L. R. A. 120, which holds pledge con- 
 verting notes liable for their actual value only; Wright v. Bank of the Metrop 
 olis, 1 L. R. A. 289, which holds cost of repurchasing, within reasonable time, 
 pledged stock converted, the measure of damages; Woods v. Nichols, 48 L. R. A. 
 773, which limits conditional seller's damages for conversion, to amount due, 
 less depreciation in value from authorized use; Langford v. Rivinus, 33 L. R. A. 
 250, which holds measure of damages for conversion of judgment its value at 
 time of conversion. 
 Necessity as to finding- of facts on rev ersal. 
 
 Cited in Siddall v. Jansen. 143 111. 541, 30 X. E. 358, requiring appellate court 
 to recite in judgment facts found differently from trial court; Hawk v. Chicago, 
 B. & X. R. Co. 138 111. 40, 27 N. E. 450; Sellers v. Thomas, 185 111. 390, 57 
 N. E. 10; Coverdale v. Royal Arcanum, 193 111. 97, 61 X. E. 915, holding that 
 appellate court will be presumed to have found same as trial court on facts as to 
 which recital silent; Caywood v. Farrell, 175 111. 482, 51 N. E. 775, requiring 
 only ultimate facts to be found by appellate court on finding differently from 
 trial court; Iroquois Furnace Co. v., Elphicke, 200 111. 418, 65 X. E. 784, holding 
 no finding required by appellate court as to uncontroverted fact on reversing 
 judgment below; Hogan v. Chicago, 168 111. 556, 48 N. E. 210, refusing to hold 
 finding of facts by appellate court different from that of trial court ; Postal 
 Teleg. Cable Co. v. Lathrop, 131 111. 580, 7 L. R. A. 475, 19 Am. St. Rep. 55, 
 23 N. E. 583, refusing to examine evidence to determine whether facts correctly 
 found by appellate court; Seeberger v. McCormick, 178 111. 410, 53 N. E. 340, 
 holding reviewable, reversal by appellate court of judgment of trial court with- 
 out jury, upon agreed facts; Swisher v. Illinois C. R. Co. 182 111. 540, 55 X. E. 
 555 (dissenting opinion), to the effect that finding by appellate court not in- 
 consistent with that below, so as to justify reversal. 
 Accord and satisfaction by part payment. 
 
 Cited in Murphy v. Halleran, 50 111. App. 595, holding unsealed release of 
 entire debt on payment of part not bar recovery of balance ; Flaningham v. Hogue, 
 59 111. App. 318, conceding principle that unsealed release in full of judgment 
 on payment of part does not bar recovery of balance; Martin v. White, 40 111. 
 App. 290, holding acceptance of minimum rent not bar recovery of additional 
 rent provided for in lease; Pusheck v. Frances E. Willard X. T. H. Asso. 94 111. 
 App. 198, holding acceptance in full of less rent than due does not bar recovery 
 of balance; Hart v. Strong, 183 111. 355, 55 X. E. 629, holding unenforceable agree- 
 ment to accept less than due on note because holder believed he had over- 
 reached maker; State Sav. Loan & T. Co. v. Stewart, 65 111. App. 400, holding 
 right to dividend on entire claim not lost by accepting dividend on claim as 
 reduced by collections on collateral securities; Ostrander v. Scott, 161 111. 345, 
 43 N. E. 1089, holding use of check reciting payment in full of disputed claim 
 prevents recovery of balance; Tanner v. Merrill, 108 Mich. 60, 31 L. R. A. 172, 
 
75 L. E. A. CASES AS AlTIHMin J Ks. [1 L.R.A. 309 
 
 62 Am. St. Rep. 687, 65 N. W. 664, holding receipt in full on payment of un- 
 disputed part of claim after refusal to pay balance conclusive; Bingham v. Brown- 
 ing. 197 111. 136, 64 N. E. 317, Affirming 97 111. App. 453, holding acceptance of 
 draft for part of disputed claim and signing of receipt in full prevents recovery of 
 balance; Bostrom v. Gibson, 111 111. App. 458, holding agreement to accept lesser 
 sum than amount known to be due, in full satisfaction, void; Rauen v. Pruden- 
 tial Ins. Co. 329 Iowa, 742, 106 X. W. 198; Farmers' & M. Life Asso. v. Caine, 
 224 111. 606, 79 X. E. 956, Affirming 115 111. App. 311, holding the acceptance 
 by a creditor from the debtor of a less sum than the amount due in satisfaction 
 of a liquidated and undisputed debt is only a discharge of the debt pro tanto. 
 
 Cited in notes (11 L. R. A. 711) on payment of part of debt as bar to collec- 
 tion of balance; (20 L. R. A. 808) on lack of consideration in accord and satis- 
 faction by part payment; (11 L.R.A.(X.S.) 1022) on part payment as considera- 
 tion for discharge of liquidated and undisputed debt; (100 Am. St. Rep. 430> 
 on accord and satisfaction. 
 
 Distinguished in Golden v. Bartlett Illuminating Co. 114 Mich. 627. 72 X. W. 
 622, holding acceptance of check for undisputed part of claim and signing receipt 
 in full, although without reading, bars further claim. 
 Presumption as to findings of fact by appellate court. 
 
 Cited in Kantzler v. Bensinger, 214 111. 595, 73 X. E. 874, holding it would be 
 presumed, where appellate court reversed lower court without remanding or 
 findings of facts, that the reversal was for errors of law, not that the evidence 
 was insufficient to support the verdict and facts will be reviewed accordingly. 
 
 1 L. R. A. 309, MURPHY v. BOLGER BROS. 60 Vt. 723, 15 Atl. 365. 
 Ejectment for projections, overhangs or encroachments. 
 
 Approved in Johnson v. Minnesota Tribune Co. 91 Minn. 481, 98 X. W. 32I r 
 holding that ejectment will lie where base of a front wall has been extended over 
 the line and plaintiff's wall has been partly removed to allow extension of orna- 
 mental moldings of defendant's building. 
 
 Cited in Rasch v. Xorth, 99 Wis. 288, 40 L. R. A. 578, 67 Am. St. Rep. 858 r 
 74 X. W. 820, holding ejectment not maintainable for projecting eaves by one 
 whose eaves are lower and also project; Butler v. Frontier Teleph. Co. 186 X. Y. 
 489, 11 L.R.A. (X.S.) 922, 116 Am. St. Rep. 563, 79 X. E. 716, 9 A. & E. Ann. 
 Cas. 858, on projecting eaves as constituting an actual ouster or disseisin suffi- 
 cient to sustain ejectment; Butler v. Frontier Teleph. Co. 109 App. Div. 219, 95 
 X. Y. Supp. 684, on projection of eaves as grounds for ejectment; Huber v. 
 Stark, 124 Wis. 362, 109 Am. St. Rep. 937, 102 X. W. 12, 4 A. & E. Ann. Cas. 
 340, on equitable discontinuance or trespass for damages as being remedy for 
 extending eaves or foundation stone not constituting an ouster. 
 
 Cited in notes (13 L. R. A. 664) on projection of eaves, walls, etc., as basis for 
 ejectment; (16 L. R. A. 813) on estoppel in % pats upon defendant as basis for 
 action to recover real estate; (11 L.R.A.(X.S.) 918) on ejectment for encroach- 
 ments under surface, or overhead; (116 Am. St. Rep. 582) on maintainability of 
 ejectment for projecting eaves, cornices, roofs or trees. 
 For other incorporeal invasions. 
 
 Cited in Reynolds v. Munch, 100 Minn. 116, 110 X. W. 368, holding that eject- 
 ment will lie where defendant claims perpetual right of overflow on plaintiff* 
 land. 
 
 Cited in note (116 Arc. St. Rep. 584) on maintainability of ejectment for over- 
 flowing of lands by means of dams. 
 
1 L.K.A. 309] L. K. A. CASES AS AUTHORITIES. 76 
 
 Disseisin In space above soil. 
 
 Cited in Atkins v. Pfaffe, 136 Iowa, 733, 114 N. W. 187, holding that wnere 
 owner has occupied house on lot with understanding that he owned the epace 
 under the eaves and the swing of the shutters his occupancy includes that space. 
 Title by adverse possession. 
 
 Cited in note (10 L.R.A. 389) on ouster by cotenant necessary to title by 
 adverse possession. 
 
 ] L. R. A. 311, SMITH v. AYRAULT, 71 Mich. 475, 39 N. W. 724. 
 
 Contribution. 
 
 Cited in footnote to Farwell v. Becker, 6 L. R. A. 400, which requires attach- 
 ing creditor paid from goods wrongfully seized, to contribute to damages in 
 trespass against other creditors. 
 
 Cited in note (6 L. R. A. 631) on contribution between wrongdoers. 
 
 1 L. R, A. 318, REIZENSTEIN v. MARQUARBT, 75 Iowa, 294, 9 Am. St. Rep. 
 
 477, 39 N. W. 506. 
 Statnte of limitations on demandable rights. 
 
 Cited in Mickel v. Walraven, 92 Iowa, 430, 60 N. W. 633, holding unexcused 
 failure of creditor to move for eighteen years after recording of fraudulent con- 
 veyance, fatal; Dolon v. Davidson, 16 Misc. 319, 39 N. Y. Supp. 394, holding delay 
 of fourteen years in presenting check for payment, fatal ; Blount v. Beall, 95 Ga. 
 191, 22 S. E. 52, holding bailee's mere failure to deliver on demand does not 
 set statute running; Bonbright v. Bonbright, 123 Iowa, 308, 98 N. W. 784. hold- 
 ing that statute commences to run at maturity of contract, and not at date of 
 demand note given, but not accepted in satisfaction. 
 
 Cited in notes (35 L. ed. U. S. 1031) on statute of limitations and lapse of 
 time as bar to trusts; (16 Eng. Rul. Cas. 215) on statute of limitations on de- 
 mandable rights. 
 Conversion by bailee. 
 
 Cited in Austin v. Van Loom, 36 Colo. 199, 85 Pac. 183, holding that statute 
 commenced to run in favor of bailee of cattle at time he refused to deliver and 
 not at time of change of range such change not being a conversion in itself. 
 
 Cited in footnote to Staub v. Kendrick, 6 L. R. A. 620, which holds baggage 
 transporter liable for negligent loss of articles in valise. 
 
 1 L. R. A. 320, STOREY v. STOREY, 125 111. 608, 8 Am. St. Rep. 417, 18 
 
 N. E. 329. 
 Construction of contract. 
 
 Cited in People use of Lawrence County v. Adams, 65 111. App. 287, holding 
 parties to salary contract to interpretation they themselves put upon it; Slack 
 v. Knox, 114 111. App. 447, on interpretation of parties as bearing on construction 
 of contract in cases of doubt; Slack v. Knox, 213 111. 395, 68 L.R.A. 609, 72 N. 
 E. 746, on the permissibility of construing a contract in conformance with the 
 interpretation placed thereon by the parties; Miller v. Mowers, 227 111. 401, 81 
 N. E. 420, holding that in construing deed in case of ambiguity, the court may 
 consider the intent of the parties gathered from attendant circumstances of its 
 execution, if such intent is consistent with language used. 
 Consent decrees for alimony. 
 
 Cited in Collier v. Collier, 66 111. App. 485, holding terms and conditions of 
 payment of alimony may be settled by agreement of parties; Henderson v. Hen- 
 derson, 37 Or. 151, 48 L.R.A. 770, 82 Am. St. Rep. 741, 60 Pac. 597, holding court 
 
77 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 327 
 
 cannot modify consent decree if one party objects; Cavenaugh v. Cavenangh, 
 ]06 111. App. 211, holding consent decree binding on the parties; Whitney v. 
 Whitney Elevator & Warehouse Co. 106 C. C. A. 28, 183 Fed. 681, holding that 
 wife, under divorce decree continuing prior separation agreement for certain 
 monthly sum during her life, is entitled to alimony after husband's death; 
 Stanfield v. Stanfield, 22 Okla. 589, 98 Pac. 334, holding court has no jurisdic- 
 tion to modify alimony decreed to wife for fault of husband, where such alimony 
 is adjudged to wife in accordance with agreement of the parties previous to 
 decree in absence of fraud or mistake. 
 
 Cited in footnote to Sampson v. Sampson, 3 L. R. A. 349, which holds alimony 
 decree final after expiration of time for new trial. 
 
 Distinguished in Griswold v. Griswold, 111 111. App. 274, holding that consent 
 decree obtained by fraud and coercion may be set aside. 
 DiselinrRC of decree ns to alimony. 
 
 Cited in Adams v. Storey, 135 111. 453, 11 L.R.A. 792, 25 Am. St. Rep. 392, 
 26 K E. 582, and Murphy v. Moyle, 17 Utah, 121, 70 Am. St. Rep. 767, 53 Pac. 
 1010, holding court's power to enforce decree as to alimony not affected by 
 death of husband. 
 
 Cited in notes (102 Am. St. Rep. 701; 2 L.R.A.(N.S.) 242) as to whether 
 alimony terminates on death of husband. 
 Effect of wife's remarriage on. 
 
 Cited in Morgan v. Lowman, 80 111. App. 559, holding remarriage of wife 
 absolves husband from payment of alimony thereafter. 
 Validity of separation agreement or ag-recmeut for alimony. 
 
 Cited in King v. Mollohan, 61 Kan. 690, 60 Pac. 731, holding necessary separa- 
 tion agreements not against public policy; Stebbins v. Morris, 19 Mont. 122. 
 47 Pac. 642, sustaining separation agreement entered into without collusion 
 as incidental to divorce decree obtained without collusion; Stuckey v. Stuckey, 
 122 111. App. 557, holding a contract as to amount of alimony entered into before 
 decree of divorce has been awarded, having a tendency to facilitate divorce is 
 void as against public policy; Wilson v. Hinman, 182 X. Y. 414, 2 L.R.A. (N.S.) 
 240, 108 Am. St. Rep. 820, 75 N. E. 236; Whitney v. Whitney Elevator & Ware- 
 house Co. 180 Fed. 191, on the validity of an agreement of the parties as to 
 length of time of continuance of payment of alimony. 
 
 1 L. R. A. 324, REED v. PEOPLE, 125 111. 592, 18 N. E. 295. 
 What are banking: corporations. 
 
 Cited in Henderson Loan & R. E. Asso. v. People, 163 111. 204, 45 N. E. 141, 
 holding loan association authorized to receive deposits, loan money, and discount 
 notes has banking powers; Sykes v. People, 132 111. 41. 23 N. E. 391, holding cor- 
 poration authorized to receive deposits and discount notes subject to banking 
 law; MacLaren v. State, 141 Wis. 581, 124 N. W. 667, holding that a "deposit 
 purchase" department, receiving deposits, giving pass books paying interest on 
 deposits and giving right to depositor to withdraw on demand in money or goods, 
 is a banking business under statute. 
 Construction of Constitution. 
 
 Cited in note (12 Am. St. Rep. 828) on construction of constitution. 
 
 1 L. R. A. 327, REYNOLDS v. SUMNER, 126 111. 58, 9 Am. St. Rep. 523, 18 
 
 N. E. 334. 
 Res u *! 
 
 Cited in Pusheck v. Frances E. Willard N. T. H. Asso. 94 111. App. 195, holding 
 
1 L.R.A. 327] L. R. A. CASES AS AUTHORITIES. 78 
 
 unexecuted lease, prepared during negotiations for reletting, admissible as part 
 of res gestce; Smith v. Hawley, 8 S. D. 367, 66 N. W. 942, holding entries made 
 at time of transaction admissible as part of res gestce. 
 How resulting trusts created. 
 
 Cited in Van Buskirk v. Van Buskirk, 148 111. 23, 35 N. E. 383, holding that a 
 resulting trust arises from purchase of lands by one with funds of another ; 
 Warren v. Adams, 19 Colo. 523, 30 Pac. 604, holding, where lands are purchased 
 by one with funds of another, a trust results from acts, and not from agreement 
 of parties; Centerville v. Turner County, 25 S. D. 302, 126 N. W. 605, holding 
 that collection of city taxes by county creates implied or constructive trust. 
 
 Cited in notes (3 L.R.A. 392) on creating trust by deposit of money for an- 
 other's use; (10 Am. St. Rep. 888) on resulting trusts. 
 Hovr resulting trust established. 
 
 Cited in Walston v. Smith, 70 Vt. 28, 39 Atl. 252, holding parol evidence 
 admissible to establish resulting trust. 
 Running of limitation as to trusts. 
 
 Cited in Campbell v. McFadden, 9 Tex. Civ. App. 395, 31 S. W. 436, holding 
 repudiation of trust, made known to cestui que trust, sets statute in operation ; 
 Fawcett v. Fawcett, 85 Wis. 338, 39 Am. St. Rep. 844, 55 N. W. 405, holding re- 
 pudiation of resulting trust necessary to put in operation statute of limitations; 
 Meacham v. Bunting, 156 111. 594, 28 L. R. A. 620, 47 Am. St. Rep. 239, 41 N. E. 
 175, holding possession of lands conveyed in trust for wife subsequently divorced 
 not adverse to her; Crowley v. Crowley, 72 N. H. 245, 56 Atl. 190, holding that 
 statute runs in favor of holder of legal title against equitable owner, at date of 
 conveyance. 
 
 Cited in notes (8 L. R. A. 480) on application of statute of limitations to 
 trusts; (8 L. R. A. 649) on repudiation of trust putting in operation statute of 
 limitations; (35 L. ed. U. S. 1031) on statute of limitations and lapse of time 
 as bar to trusts; (16 Eng. Rul. Cas. 272) on running of limitations in case of 
 breach of fiduciary duty. 
 Equitable remedies; lacbes. 
 
 Cited in Zunkel v. Colson, 109 Iowa, 699, 81 N. W. 175, holding lapse of time 
 not conclusive evidence of laches; Thorndike v. Thorndike, 142 111. 452, 21 L. R. 
 A. 75, 33 Am. St. Rep. 90, 32 N. E. 510, holding that courts of equity will, in 
 proper cases, disregard the statute of limitations; Farwell v. Great Western 
 Teleg. Co. 161 111. 596, 44 N. E. 891, holding relation of trust excuses failure to 
 *xercise diligence to discover fraud; Wolf v. Great Falls Water Power & Town- 
 ite Co. 15 Mont. 64, 38 Pac. 115, holding one may be guilty of laches barring 
 specific performance of contract, though limitation has not run; Mullan v. 
 Carper, 37 W. Va. 222, 16 S. E. 527, holding delay, less than period of legal 
 limitation, with knowledge of adverse possession of purchaser under invalid de- 
 cree, may constitute laches; Carey-Lombard Lumber Co. v. Daugherty, 125 111. 
 App. 264, holding that where a party had concurrent remedy at law which was 
 outlawed equity will follow the law; Foss v. People's Gaslight & Coke Co. 145 
 111. App. 225, holding that fifty years delay by stockholder in asserting right 
 to participate in stock increases constitutes laches; Evans v. Moore, 247 111. 
 73, 139 Am. St. Rep. 302, 93 N. E. 118, holding that nephew, entitled to uncle's 
 property under promise thereof, at time it is devised to another on latter's 
 promise to hold it in trust for nephew, is not barred from asserting his right 
 thereto after devisee's death. 
 
 Cited in notes (11 Am. St. Rep. 885) on laches; (23 Am. St. Rep. 149) on 
 
79 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 339 
 
 stale claims; (101 Am. St. Rep. 146) on nature and purposes of statute of lim- 
 itations and doctrine of laches. 
 
 1 L. R. A. 331, CONNOR v. VICKSBURG & M. R. CO. 2 Inters. Com. Rep. 177, 
 
 36 Fed. 273. 
 Jurisdiction of United States circuit courts. 
 
 Cited in Union Switch & Signal Co. v. Hall Signal Co. 65 Fed. 625, holding 
 circuit court has no jurisdiction in patent case against nonresident corporation; 
 Bensinger Self-Adding Cash Register Co. v. National Cash Register Co. 42 Fed. 
 82, holding that maintenance of office in district does not give circuit court ju- 
 risdiction over nonresident corporation. 
 
 Cited in footnote to Rece v. Newport News & M. Valley Co. 3 L. R. A. 572, 
 which holds state cannot deprive foreign corporation of right to resort to 
 Federal courts. 
 
 Cited in note (14 L. R. A. 186) as to where corporation an inhabitant for 
 purpose of jurisdiction. 
 Mode of objection to jurisdiction. 
 
 Cited in Ladew v. Tennessee Copper Co. 179 Fed. 248, holding that want of 
 jurisdiction of Federal court apparent on face of bill may be raised by motion 
 to dismiss. 
 
 1 L. R. A. 334, LAMBERTVILLE NAT. BANK v. McCREADY BAG & PAPER 
 
 CO. (N J. Eq.) 15 Atl. 388. 
 Trnst created i>> deposit. 
 
 Cited in note ( 3 L. R. A. 392 ) on trust created by deposit of money for another's 
 use. 
 
 1 L. R. A. 336, MOORE v. WILLIAMSON, 44 N. J. Eq. 496, 15 Atl. 587. 
 Property passes by assignment. 
 
 Cited in Meeker v. Felts, 49 N. J. Eq. 507, 23 Atl. 672, holding that general 
 assignment passed interest as residuary legatee, although not so intended. 
 Notice ot intent. 
 
 Cited in Dougherty v. Connolly, 61 N. J. Eq. 428, 48 Atl. 777, holding mort 
 gagee chargeable with notice of fraudulent exercise of power of sale, where cir- 
 cumstances demanded inquiry. 
 
 Cited in notes (31 L. R. A. 610, 614, 620) on participation by creditor in 
 /raudulent intent of debtor to invalidate transfer; (34 Am. St. Rep. 399, 401; 
 on vendee's knowledge as affecting validity of fraudulent conveyance; (18 Eng. 
 Rul. Cas. 79) on effect of knowledge of mortgagee of intent on invalidity of 
 conveyance in fraud of creditors. 
 
 1 L. R. A. 339, SHUPE v. COLLENDER, 56 Conn. 489, 15 Atl. 405. 
 Warranty on sale of goods retained. 
 
 Cited in Eyers v. Haddem, 70 Fed. 650, holding buyer may waive special 
 remedy and sue for breach of warranty; Clark v. Wooster, 79 Conn. 131, 64 Atl. 
 10, holding that rescission and return may not be had on an executed sale for 
 breach of warranty in the absence of fraud; Fairmont Plumbing Co. v. Carr, 
 54 W. Va. 279, 46 S. E. 458, as applying where dissatisfaction of purchaser does 
 not disable him from retaining thing purchased and recouping for breach of war- 
 ranty on action for the price. 
 
 Cited in notes (1 L. R. A. 645) on implied warranty that thing sold by condi- 
 tional sale will be satisfactory; (3 L. R. A. 184) on general warranty on sale 
 
1 L.R.A. 339] L. R. A. CASES AS AUTHORITIES. 80 
 
 of chattel; (6 L.R.A. 375) on express warranty on sale of goods; (12 L.R.A.(N.S.) 
 541) on effect of provision for return of defective goods upon buyer's right to 
 recover for breach of warranty. 
 
 1 L. R. A. 342, LAWRENCE v. SECURITY CO. 56 Conn. 423, 15 Atl. 406. 
 Kiiiht to use of legacy from testator's death. 
 
 Cited in Blackstone's Appeal, 64 Conn. 420, 30 Atl. 48. holding widow's life 
 use of third of estate must be determined as of date of testator's death; Wood- 
 ruff v. Marsh, 63 Conn. 134, 38 Am. St. Rep. 346, 26 Atl. 846, holding bequest to 
 trustees for charitable use, conditioned upon gift of land, vested on testator's 
 death; Bancroft v. Security Co. 74 Conn. 222, 50 Atl. 735, holding residuary life 
 legatee entitled to net income of bequest from date of testator's death; Bishop 
 v. Bishop, 81 Conn. 526, 71 Atl. 583; Webb v. Lines, 77 Conn. 53, 58 Atl. 227, 
 on commencement of use of income by life legatee from testator's death where 
 will fixes no time and the bequest is of residuary estate or aliquot part thereof. 
 
 Cited in note (2 L. R. A. 113) on when use of income commences. 
 Waiver of right to enjoy legacy. 
 
 Cited in Brown's Estate, 190 Pa. 465, 42 Atl. 890, holding life legatee's right 
 to interest from death of testator may be barred by acquiescence in distribution. 
 
 Distinguished in Dickinson v. Henderson, 122 Mich. 586, 81 X. W. 583, holding 
 widow's right not waived for failure to demand payment, no order for distribu- 
 tion having been made. 
 Widow's allowance pending settlement of estate. 
 
 Cited in Havens's Appeal, 09 Conn. 699, 38 Atl. 795, holding allowance by 
 probate court to widow pending settlement only reviewable on appeal. 
 Liability of trustee for sums paid under approval of conrt. 
 
 Cited in State v. Thresher, 77 Conn. 76, 58 Atl. 460, holding that where pay- 
 ments were made by trustee in good faith to executor by order of probate court, 
 the rights of persons interested, are not concluded by failure to appeal when 
 they received no notice; Jones v. Downs, 82 Conn. 42, 72 Atl. 589, on liability 
 of an accounting by trustee for trust estate. 
 Waiver of levy or lien by second process. 
 
 Cited in Water Supply Co. v. Sarnow, 6 Cal. App. 588. 92 Pac. 667, holding 
 that the issuance and levy of a second execution does not waive rights acquired 
 by a prior levy complete and regular in form. 
 
 1 L. R. A. 346, KELLOGG v. DICKINSON, 147 Mass. 432, 18 N. E. 223. 
 Agreement to -waive statute of limitations. 
 
 Cited in Wells, F. & Co. v. Enright, 127 Cal. 673, 49 L. R. A. 649, footnote, p. 
 647, 60 Pac. 439, holding written agreement in consideration of forbearance bind- 
 ing; Trask v. Weeks, 81 Me. 328, 17 Atl. 162, holding agreement to waive statute 
 as to accounts already barred, and renewing promise -to pay, not a contract not 
 to plead statute in future; Holman v. Omaha & C. B. R. & Bridge Co. 117 Iowa, 
 273, 62 L. R. A. 398, footnote, p. 395, 94 Am. St. Rep. 293, 90 N. W. 833, holding 
 one promising not to plead statutory bar estopped from doing so; Union Cent. 
 L. Ins. Co. v. Spinks, 119 Ky. 269, 69 .L.R.A. 267, 83 S. W. 615, 7 A. & E. 
 Ann. Cas. 913, holding that a clause in insurance policy requiring action on 
 policy to be brought within one year of insured's death is void as against pub- 
 lic policy where statute provides limit; Holland v. Sheehan, 108 Minn. 368, 23 
 L.R.A.(N.S.) 512, 122 N. W. 1, 17 A. & E. Ann. Cas. 687, on the invalidity 
 of agreements to waive statute of limitations; Xewell v. Clark. 73 N. H. 292, 
 61 Atl. 555, holding that where sureties agree "to be liable without notice as 
 
81 L, R. A. CASES AS AUTHORITIES. [1 L.R.A. 35f> 
 
 long as there is any liability of principal," they do not mean to waive statute 
 of limitations and if they do the statute will run against the agreement to waive 
 thus barring the action. 
 Presumption of payment. 
 
 Cited in Anthony v. Anthony, 161 Mass. 350, 37 N. E. 386, holding presumption 
 of payment rebutted by evidence of nonpayment; Courtney v. Staudenmayer, 56 
 Kan. 397, 54 Am. St. Rep. 592, 43 Pac. 758, holding presumption of payment 
 may defeat claim not barred by limitation; Mitchell v. Bickford, 192 Mass. 245, 
 78 X. E. 453, on rebuttal of the presumption of payment. 
 
 1 L. R. A. 348, KENYON v. WRISLEY, 147 Mass. 476, 18 N. E. 227. 
 Suit by bankrupt. 
 
 Cited in Atwood v. Bailey, 184 Mass. 134, 68 N. E. 13, requiring trustee's 
 knowledge of action to be shown to entitle bankrupt to maintain it on ground 
 of trustee's election by acquiescence not to assume burden of it; Equitable Life 
 Assur. Soc. v. Perkins, 41 Ind. App. 192, 80 N. E. 682 (dissenting opinion), on 
 right of suit by bankrupt on property not included as assets. 
 
 Distinguished in Wood v. Baker, 60 Hun, 343, 14 N. Y. Supp. 821, upholding 
 action by bankrupt after discharge, to compel reconveyance from grantee in deed 
 given as security: Sessions v. Romadka, 145 U. S. 51, 36 L. ed. 617, 12 Sup. Ct. 
 Rep. 799, holding two years' statute no bar to suit by bankrupt, where assignee 
 abandoned claim before his right to sue expired. 
 
 1 L. R. A. 350, SOUTHBRIDGE SAV. BANK v. MASON, 147 Mass. 500, 18 
 
 N. E. 406. 
 \Vhnt constitute fixtures. 
 
 Cited in Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 522, 6 L. R. A. 251, 
 15 Am. St. Rep. 235, 23 N". E. 327, holding cotton-mill machinery not intended 
 to be moved from building, part of the real estate; Globe F. Ins. Co. v. Lexington,. 
 173 Mass. 8, 52 N. E. 1086, holding surveyor's stakes temporarily in ground, per- 
 sonal property; Equitable Guarantee & T. Co. v. Knowles, 8 Del. Ch. 131, 67 
 Atl. 961, on the question as to when machinery and manufacturing appliances are 
 fixtures and when not; Hook v. Bolton, 199 Mass. 246, 17 L.R.A.(N.S-) 701, 127 
 Am. St. Rep. 487, 85 N. E. 175, on the consideration of intent, adaptability and 
 mode of annexation in determining as to what is a fixture. 
 
 Cited in footnotes to Atchison, T. & S. F. R. Co. v. Morgan, 4 L.R.A. 284,. 
 which holds uses property put to one of tests whether it is personalty or fixture: 
 Murray v. Bender, 63 L.R.A. 783, which holds chairs, stage fixtures, and drop 
 curtains annexed to theater to make possible the use of the building, fixtures; 
 Giddings v. Freedley, 65 L.R.A. 327, which holds main belt transmitting power 
 from an engine, so annexed to building as to be real estate, to machinery in mill, 
 real estate. 
 
 Cited in notes (3 L. R. A. 33, 34; 4 L. R. A. 674; 5 L. R. A. 594; 6 L. R. A- 
 249) on what are fixtures. 
 As to pure-baser of land without notice. 
 
 Cited in Went worth v. S. A. Woods Mach. Co. 163 Mass. 33, 39 N. E. 414,. 
 holding title to fixtures in third person passes to vendee of land without notice. 
 AH to mortgagee of land. 
 
 Cited in Fuller-Warren Co. v. Harter, 110 Wis. 87, 53 L. R. A. 607, 84 Am. St. 
 
 Rep. 867, 85 N. W. 698, holding real estate fixtures as to prior mortgagee of 
 
 land not party to contract, though personalty as between vendor and vendee; 
 
 McKelvey v. Creevey, 72 Conn. 468, 77 Am. St. Rep. 321, 45 Atl. 4, holding 
 
 L.R.A. Au. Vol. I. 6. 
 
1 L.R.A. 350] L. E. A. CASES AS AUTHORITIES. 82 
 
 to fixtures severed by mortgagor in possession passes absolutely to bona fide pur- 
 chaser. 
 
 Cited in footnotes to Anderson v. Creamery Package Mfg. Co. 56 L. R. A. 554, 
 which holds seller's reserved or chattel-mortgage title to machinery in building 
 does not pass to prior mortgagee of real estate; Neufelder v. Third Street & 
 Suburban R. Co. 53 L. R. A. 601, which holds machinery not made especially for 
 building not realty as to mortgagee by being bolted or secured down. 
 
 Cited in note (10 L. R. A. 725) on fixtures, as between mortgagor and mort- 
 gagee. 
 Findings as to facts. 
 
 Cited in Morrell v. Kelley, 157 Mass. 127, 31 N. E. 755, holding court will not 
 reverse findings of master, unless clearly wrong; Briggs v. Hiles, 87 Wis. 447, 
 58 N. W. 752, refusing to disturb finding of referee on conflicting evidence; Smith 
 v. Bay State Sav. Bank, 202 Mass. 488, 88 N. E. 1086, holding that as to what 
 was intent of owner where hotel realty was mortgaged not mentioning a saloon 
 bar, which was easily removable and later, after payment for bar, it was specifi' 
 cally mortgaged as personalty, is a question for the jury, their finding of intent 
 controlling the character of the bar. 
 
 1 L. R. A. 354, NOYES v. GARDNER, 147 Mass. 505, 18 N. E. 423. 
 Notice of defect in highway. 
 
 Cited in Tilton v. Wenham, 172 Mass. 409, 52 N. E. 514, holding inference 
 of town's notice of stump concealed by grass within inch of traveled part of 
 highway, justified; Campbell v. Kalamazoo, 80 Mich. 660, 45 N. W. 652, holding 
 notice inferable from general rotten condition of walk for more than year; Com- 
 erford v. Boston, 187 Mass. 567, 73 N. E. 661, holding it for jury whether city 
 had notice of subsidence of walk on a much traveled street; Roswell v. Daven- 
 port, 14 N. M. 96, 89 Pac. 256, holding 1 that evidence of generally unsafe 
 condition of walk is evidence tending to charge city with constructive notice 
 of defect causing injury. 
 
 Cited in notes (6 L. R. A. 696) on liability of towns and villages for neglect 
 of highways; (10 L. R. A. 740) on proof of notice of defect essential to hold 
 municipality liable for unsafe condition of street. 
 Liability of municipality for obstructions in streets. 
 
 Cited in New York C. & H. R. R. Co. v. Cambridge, 186 Mass. 251, 71 N. E. 
 557, on liability of city for obstructions in streets caused by railroad construc- 
 tion. 
 
 Cited in notes (19 L.R.A. (N.S.) 523; 20 L.R.A. ( N.S. ) 699) on liability of mu- 
 nicipality for defects or obstructions in streets. 
 
 1 L. R. A. 355, ASHLEY v. HART, 147 Mass. 573, 18 N. E. 416. 
 Employer's liability act. 
 
 Cited in Ryalls v. Mechanics' Mills, 150 Mass. 195, 5 L. R. A. 670, 22 N. E. 
 766, holding suit at common law not barred by act; Conroy v. Clinton, 158 Mass. 
 320, 33 N. E. 525, holding master not liable for caving in of sewer trench, where 
 planks used were sound, and deceased had charge of shoring up sides; O'Connor v. 
 Neal, 153 Mass. 283. 26 N. E. 857, holding placing upon rubbish heap of barrel 
 for staging, by assistant, gave no right of action; Trimble v. Whitin Much. Works. 
 172 Mass. 153, 51 N. E. 463, holding the master not liable for failure to place 
 gang plank at side of car; Nye v. Dutton, 187 Mass. 551, 73 X. E. 654, holding 
 that employer is not liable for injury caused by negligence of fellow servant 
 engaged in adjusting a new piece of machinery to replace a broken piece, under 
 the liability act. 
 
83 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 356 
 
 Cited in footnotes to Johnson v. St. Paul & D. R. Co. 8 L.R.A. 419, which 
 holds master not liable for injury caused by blowing to of draw left unfastened 
 by one of train crew; Farrell v. Eastern Machinery Co. 68 L.R.A. 239, which 
 holds employer selecting and placing defective plank with timber designed for 
 construction of staging liable for injury to employee through its use. 
 
 Cited in notes (57 L. R. A. 818, 842) on statutory liability of employers for 
 defects in condition of their plants; (11 Am. St. Rep. 570) on master's liability 
 for injuries due to fellow servant's negligence. 
 
 Distinguished in Geloneck v. Dean Steam Pump Co. 165 Mass. 217, 43 N. E. 
 S5, holding master liable for accident by fall of iron pump from truck moved 
 under direction of foreman. 
 
 1 L. R. A. 356, BEST v. BAUMGARDNER, 122 Pa. 17, 15 Atl. 691. 
 Repeal by implication. 
 
 Cited in Chalfant v. Edwards, 176 Pa. 71, 38 W. N. C. 264, 34 Atl. 922, hold- 
 ing act to make effective constitutional provisions limiting borrowing power of 
 school districts repealed local statutes; Com. ex rel. McKirdy v. Macferron, 152 
 Pa. 250, 31 W. N. C. 324, 19 L. R, A. 569, 25 Atl. 556, holding previous local 
 city acts repealed by general classification act; Jenkins v. Scranton, 202 Pa. 273, 
 51 Atl. 994, holding act fixing officer's salary at percentage of collections re- 
 pealed by act fixing salary at stated sum; 'Com. ex rel. McEntire v. Summerville, 
 204 Pa. 303, 54 Atl. 27; Boyer v. Carroll, 8 Northampton Co. Rep. 346, 11 Kulp, 
 31; Clark v. Koplin, 6 Pa. Super. Ct. 463, holding local law must yield to later 
 general law intended as a substitute; Com. v. Brown, 25 Pa. Super. Ct. 281, on 
 repeal by substitution of later enactment for former; Sun & Banner Pub. Co. v. 
 Bennett, 26 Pa. Super. Ct. 248, holding a general statute passed to revise and 
 consolidate law on granting licenses to sell liquor, substituted for a local act 
 relating to legal advertisements; Bridgewater v. Beaver Valley Traction Co. 12 
 Pa. Dist. R. 482, holding a general act without specific words of repeal operated 
 as a repeal of a local act the provisions of which were fully supplied by the 
 general act; Com. v. Leibrich, 33 Pa. Co. Ct. 292, 16 Pa. Dist. R. 471, holding 
 a local special act to be repealed where a, general act is passed fully covering 
 same matter manifesting intention of legislature that such be the effect; 
 Gymnastic Asso. v. Milwaukee, 129 Wis. 432, 109 N. W. 109, holding a special 
 enactment of incorporation and exemption of society from taxation to be super- 
 seded as to exemption by general act exempting all such societies which are or 
 may be incorporated. 
 Mechanic'** lien as affected by notice. 
 
 Cited in Groezinger v. Ostheim, 135 Pa. 611, 19 Atl. 949; Uber v. MacAfee, 10 
 Lane. L. Rev. 92, 2 Pa. Dist. R. 372; Miller v. Enck, 13 Lane. L. Rev. 191; Safe 
 Deposit & T. Co. v. Motheral, 8 Pa. Super. Ct. 434, holding notice of intention 
 to file lien necessary; Kolb v. Reformed Episcopal Church, 18 Pa. Super. Ct. 
 479; Law v. Levine, 13 Pa. Super. Ct. 156; Mehl v. Fisher, 13 Pa. Super. Ct. 
 335, holding notice necessary in case of addition to old building where two are 
 intended to be used for common purpose; Purvis v. Ross, 158 Pa. 21, 27 Atl. 882, 
 Affirming 12 Pa. Co. Ct. 194, holding lien properly stricken off for want of notice. 
 CliaiiR-e of remedy as impairment of obligation. 
 
 Cited in National Bank v. Williams, 38 Fla. 315, 20 So. 931, holding laborer's 
 lien a statutory remedy, not vested right in contract of service; Mack v. De- 
 graff & R. Quarries, 57 Ohio St. 483, 63 Am. St. Rep. 729, 49 N. E. 697, holding 
 lien for material sold and delivered without state for use in state enforceable, aa 
 lien statute is remedial ; Miller's Estate, 18 Pa. Dist. R. 226, sustaining a retro- 
 spective law where it effects not the rights but the remedy. 
 
1 L.R.A. 356] L. R. A. CASES AS AUTHORITIES. 84 
 
 Cited in footnotes to Beverly v. Barnitz, 31 L.R.A. 74. which holds "redemp- 
 tion law" did not impair obligation of contract; International Bldg. & L. Asso. v. 
 Hardy, 24 L. R. A. 284, which holds vested right to remedy for enforcement of 
 trust deed provided in contract could not be destroyed; Second Ward Sav. Bank 
 v. Schranck, 39 L. R. A. 569, which holds statutory remedy by judgment, execu- 
 tion, and levy cannot be taken away by subsequent statute; Peninsular Lead & 
 Color Works v. Union Oil & Paint Co. 42 L. R. A. 331, which holds act dissolving 
 attachment by assignment for creditors invalid when right complete ; Elton v. 
 O'Connor, 33 L. R. A. 524, which holds discharge feature of insolvency law in- 
 valid as to existing creditors ; Jones v. German Ins. Co. 46 L. R. A. 860, which 
 holds statute shortening insurance company's immunity from suit without ex- 
 tending statute of limitations does not impair right in policy previously issued: 
 Kirkman v. Bird, 58 L. R. A. 669, which holds statute exempting earnings of 
 heads of families directed to remedy; W 7 hite v. Farmers' Highline Canal & R. 
 Co. 31 L. R. A. 828, which holds contract giving consumer right to draw water 
 from canal could be interfered with by legislation regulating distribution of 
 water; Miners' & Merchants' Bank v. Snyder, 68 L.R.A. 312, which holds corporate 
 creditor's contract rights not impaired by statute requiring all creditors to unite 
 in one suit against all stockholders for equitable distribution of liability fund 
 among creditors. 
 
 Cited in note (10 L. R. A. 407) on inability of statute to take away vested 
 rights. 
 
 Distinguished in Horn & B. Mfg. Co. v. Steelman, 215 Pa. 192, 64 Atl. 400, 
 holding statute extending privilege of lien law to gas fixtures "contracted" was 
 not retroactive on existing contracts. 
 As to defense of limitation. 
 
 Cited in footnotes to Board of Education v. Blodgett, 31 L. R. A. 70, which 
 holds completed defense of statute of limitations could not be taken away from 
 school district; Lawrence v. Louisville, 27 L. R. A. 560, which holds vested 
 right to defense after bar of limitations complete cannot be changed; Osborne v. 
 Lindstrom, 46 L. R. A. 715, and Gilbert v. Ackerman, 45 L. R. A. 118, which, 
 hold statute shortening period, without providing reasonable time for bringing 
 action, not due process; Lamb v. Powder River Live Stock Co. 67 L.R.A. 558, 
 which holds re-enactment of statute of limitations with shortened period as- 
 to judgments rendered outside of the state applicable to actions on judgments 
 existing on time of its passage. 
 
 1 L. R. A. 361, TITUSVILLE IRON WORKS v. KEYSTONE OIL CO. 122 Pa. 
 
 627, 15 Atl. 917. 
 Separation of departments of government. 
 
 Followed without special discussion in Marsh v. Bower, 1 Monaghan (Pa.)' 
 248, and Gearing v. Hapgood, 1 Monaghan (Pa.) 249, 15 Atl. 920. 
 
 Cited in Lindsay v. United States Sav. & L. Asso. 120 Ala. 171, 42 L. R. A, 
 787, 24 So. 171, holding act attempting to legalize past usurious transactions in- 
 valid usurpation of judicial power; Reilly's Estate, 6 North. Co. Rep. 389, hold- 
 ing that clause in will that decision of executors shall be final and conclusive 
 in defining its provisions is against public policy. 
 
 Cited in footnotes to State v. Denny, 4 L. R. A. 65, which holds legislative- 
 power exceeded in establishing a board of metropolitan police and fire depart- 
 ment; King v. State, 3 L. R. A. 210, which holds act allowing judge at discre- 
 tion to permit jury to disperse in criminal trial invalid. 
 
 Cited in note (3 L.R.A. 54) on departments of government, distinct and ins- 
 dependent. 
 
5 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 3G1 
 
 l.-ir.is!n ion Jlxingr construction of previous acts. 
 
 Approved in Com. v. J , 21 Pa. Co. Ct. 626, holding an enactment defining 
 the meaning of terms used in prior enactments, a legislative interpretation of a 
 statute. 
 
 Cited in Purvis v. Ross, 12 Pa. Co. Ct. 196, holding an amendatory statute 
 creating new rights as distinguished from an explanatory statute is not an in- 
 vasion of the province of the court. 
 
 Distinguished in Com. ex rel. Roney v. Warwick, 172 Pa. 144, 33 Atl. 373, 
 holding act usurps judicial power which declares what the words "next city elec- 
 tion" in existing act mean; Dilworth v. Schuylkill Improv. Land Co. 2] 9 Pa. 530, 
 69 Atl. 47, 37 Pittsb. L. J. N. S. 394, holding a statutory definition of words in a 
 deed, will or other instrument, not a wrongful exercise of a judicial function. 
 Title of act. 
 
 Followed, without special discussion, in Marsh v. Bower, 1 Monaghan (Pa.) 
 248, and Gearing v. Hapgood, 1 Monaghan (Pa.) 249, 15 Atl. 920. 
 
 Cited in Beard v. Wilson, 52 Ark. 295, 12 S. W. 567, holding act extending 
 application of certain sections of statute, without re-enacting or publishing same, 
 void; Pittsburgh's Petition, 138 Pa. 429, 21 Atl. 760, holding invalid act con- 
 ferring on newly created heads of departments powers previously belonging to 
 many local offices discontinued and not specified; Whitney's Appeals, 48 Phila. 
 Leg. Int. 209, holding unconstitutional act extending to newly created heads of 
 departments acts as to abolished offices, without a reference to their dates, titles 
 or subject-matter; Com. v. Dougherty, 39 Pa. Super. Ct. 345, holding a state 
 statute invalid as to the subdivision of a section attempting to introduce into 
 it an act of Congress by reference to its title only; Wilson v. Downing, 4 Pa. 
 Super. Ct. 492, 40 W. N. C. 344, giving the meaning of the inhibition against 
 statutory enactment by reference to title, as that all enactments must be self 
 explanatory and complete in themselves; Phillips' Estate, 6 Pa. Co. Ct. 502, on 
 the amendment of statutes by reference to title of act to be amended; Titus 
 v. Elyria Oil Co..l Pa. Dist. R. 206; McKeever v. Victor Oil Co. 9 Pa. Co. Ct. 285, 
 holding an inclusion of a former enactment in a statute by general reference 
 as the "law in case of mechanics' liens," invalid; Com. v. Cucovic, 16 Pa. Dist. R. 
 1021, 33 Pa. Co. Ct. 233; Com. v. Hodusko, 24 Pa. Co. Ct. 390, 31 Pittsb. L. J. 
 N. S. 236, holding an act to amend a statute unconstitutional for failure to set 
 out contents of statute to be amended. 
 
 Cited in footnotes to Hyman v. State, 1 L. R. A. 497, which holds prohibition 
 against selling liquor to drunken husbands not within title as to sales to minors; 
 Floyd v. Perrin, 2 L. R. A. 242, which holds provision authorizing counties, etc., 
 to subscribe to stock of railroad, and making them bodies politic and corporate 
 with necessary powers, within title "An Act to Charter" such railroad company; 
 Winona v. School Dist. No. 82, 3 L. R. A. 46, which holds act extending bound- 
 aries of city not void because title does not refer to boundaries of school dis- 
 trict previously established in city; Wardle v. Townsend, 4 L. R. A. 511, which 
 holds provision for winding up insurance companies within title as to their in- 
 corporation and defining their duties; Judson v. Bessemer, 4 L. R. A. 742, which 
 holds provision for issuing municipal bonds within title as to amendment of 
 charter and reincorporation of city; Eaton v. Walker, 6 L. R. A. 102, which holds 
 invalid amendment extending to mercantile companies provision of act relating 
 to manufacturing companies; Thomas v. Wabash, St. L. & P. R. Co. 7 L. R. A. 
 145, which holds provision giving right to water limited to companies owning 
 landings, not within title as to facilitation of carriage of passengers and prop- 
 erty; Millvale v. Evergreen R. Co. 7 L. R. A. 369, which holds title in sup- 
 plemental act referring only to title of principal act valid if legislation germane; 
 
1 L.R.A. 361] L. R. A. CASES AS AUTHORITIES. 
 
 State v. Snow, 11 L. R. A. 355, which holds prohibition of sale of lard or any 
 article intended for use as lard, other than pure swine fat, without marking, 
 within title as to preventing fraud in sale of lard; State v. Burgdoerfer, 14 
 L. R. A. 846, which holds provision forbidding book-making and pool-selling on 
 events occurring out of state clearly expressed by title prohibiting book-making 
 and pool-selling; Hronek v. People, 8 L. R. A. 837, which hold valid statute regu- 
 lating manufacture, etc., of explosives for legitimate purposes, with prohibition 
 against unlawful destruction; Snell v. Chicago, 8 L. R. A. 858, which holds in- 
 valid sections of act providing for plank road on a different line from that ex- 
 pressed in title. 
 
 Cited in notes (2 L. R. A. 609) on title to act must express but one object; 
 (4 L. R. A. 93) on title to act must embrace its subject; (2 L. R. A. 789) on 
 title of statutes suggesting subjects dealt with in act; (64 Am. St. Rep. 79) 
 on sufficiency of title of statute. 
 
 Distinguished in Re Emsworth, 5 Pa. Super. Ct. 35, holding a new law enacted 
 conferring powers and imposing duties denning them, constitutional though it in 
 effect extends, modifies, repeals or amends a former act upon the subject not 
 set out in the new law; Forty Fort v. Forty Fort Water Co. 9 Kulp. 250, holding 
 a supplement to a statute, merely enlarging powers conferred need not re-enact 
 the statute enlarged upon. 
 Effect on act of invalid provision. 
 
 Cited in footnote to McCormick v. Pratt, 17 L. R. A. 250, which holds appro- 
 priation does not fail because naming of officers to expend money invalid. 
 Persons entitled to mechanic's lien. 
 
 Cited in Wrigley v. Mahaffey, 5 Pa. Dist. R. 390, holding that a journeyman 
 mechanic has no lien for wages in building constructed. 
 
 1 L. R. A. 364, BELL v. MAHN, 121 Pa. 225, 6 Am. St. Rep. 786, 15 Atl. 523. 
 License for theatrical performance. 
 
 Cited in Re Stevens, 70 Hun, 245, 24 N. Y. Supp. 780, denying mayor's power 
 to give consent to theatrical exhibition including singing or dancing by child 
 under sixteen; Re Theatrical Exhibitions, 14 Pa. Co. Ct. 659, 3 Pa. Dist. R. 192, 
 holding opera a theatrical entertainment; Com. v. Keeler, 3 Pa. Dist. R. 160, 
 holding manager of theatrical troupe required to obtain license though playing 
 under contract with licensed proprietor of building. 
 
 Cited in note (110 Am. St. Rep. 529), on performances for which license may 
 be required. 
 
 Distinguished in Hayes v. Coatesville Opera-House Co. 139 Pa. 638, 22 Atl. 
 647, Affirming 8 Pa. Co. Ct. 539, holding theatrical licenses not required for per- 
 formances in other than Philadelphia and Allegheny counties; Com. v. Reif- 
 snyder, 14 Pa. Co. Ct. 356, 3 Pa. Dist. 195, holding manager of troupe playing 
 in theater under contract with proprietor having license not required to obtain 
 license. 
 Construction of "theater." 
 
 Cited in State v. Penny, 42 Mont. 126, 31 L.R.A.(X.S.) 1159, 111 Pac. 727, 
 holding that word "theater" in Sunday closing act does not include moving picture 
 theater; Xeher v. Viviani, 15 X. M. 468, 110 Pac. 695, holding that furniture is 
 not necessary part of theater building. 
 
 1 L. R. A. 366, KNOLL v. NEW YORK, C. & ST. L. R. CO. 121 Pa. 467, 15 
 
 Atl. 571. 
 Recovery by mortgagee for injuries to mortgrag'ed property. 
 
 Cited in McCaleb v. Goodwin, 114 Ala. 623, 21 So. 967, holding purchaser under 
 
87 L. JR. A. CASES AS AUTHORITIES. [1 L.R.A. 370 
 
 foreclosure acquires no right of action for impairment of security; Mack v. 
 Eastern & N. R. Co. 7 Northampton Co. Rep. 319, denying right of mortgagee, 
 purchasing at foreclosure, to recover right of way granted railroad by mort- 
 gagor: Re Torchia, 59 Pittsb. L. J. 188, 185 Fed. 581, holding that mortgagee 
 has no lien on damages to mortgaged premises from change of grade of street, 
 in hands of trustee in bankruptcy of mortgagor; Jackson v. Pittsburg, 36 Pa. 
 Super. Ct. 280, holding mortgagee not entitled to notice prior to payment of 
 damages to mortgagor for street openings through mortgaged property; Mack 
 v. Eastern & X. R. Co. 10 Pa. Dist. R. 103, holding mortgagees entitled to equi- 
 table apportionment of damages to mortgaged property to the extent only of 
 the impairment of their security, mortgagor being insolvent. 
 
 Cited in notes (12 L. R. A. 84; 18 L. R. A. 116) on rights of mortgagee of 
 premises taken by eminent domain; (6 L. R. A. 612) on personal action by 
 mortgagee; (7 L. R. A. 35) on personal liability of vendee assuming encumbrance. 
 
 Distinguished in Philadelphia & R. R. Co. v. Pennsylvania S. Valley R. Co. 
 151 Pa. 575, 31 W. N. C. 188, 25 Atl. 177, authorizing payment of damages into 
 court for protection of all parties, where mortgaged land taken by condemnation. 
 Injury to property subject to life estate. 
 
 Cited in De Witt v. Lehigh Valley R. Co. 21 Pa. Super. Ct. 16, holding fund 
 paid into court for destruction of building on estate occupied by life tenant, 
 asset subject to life estate, for payment of remainderman's debts. 
 Recovery for injury to property not condemned. 
 
 Cited in note (22 Am. St. Rep. 51) on injury to property not taken as ele- 
 ment of damages in eminent domain. 
 
 1 L. R. A. 368, FECHHEIMER v. HOLLANDER, 6 Mackey, 512. 
 
 Report of second appeal in 21 D. C. 76. appeal from which to United States 
 Supreme Court was dismissed in 162 U. S. 326, 40 L. ed. 985, 16 Sup. Ct. Rep. 795. 
 When jndg-ment creditor entitled to equitable relief. 
 
 Cited in footnote to Harper v. Clayton, 35 L. R. A. 211, which holds unassigned 
 right of dower cannot, in absence of statute, be reached by creditor's bill. 
 
 1 L. R. A. 370, STATE v. JACKSON, 36 Fed. 258. 
 Extradition proceedings. 
 
 Cited in footnote to Scott v. Eldridge, 12 L.R.A. 379, holding arrest for past 
 misdemeanor, without warrant, on authority of letter of police officer of another 
 state, unlawful. 
 
 Cited in notes (14 L.R.A. 129) on right to try prisoner for other crime than 
 that for which he was surrendered; (68 Am. St. Rep. 133) on grounds for refusal 
 by state to surrender person demanded by authorities of another; (47 L. ed. U. S. 
 657) on necessity, for extradition purposes, to actual presence of accused in de- 
 manding state. 
 "Fugitive" from justice. 
 
 Cited in footnote to People ex rel. Corkran v. Hyatt, 172 N. Y. 200, 60 L.R.A. 
 782, 92 Am. St. Rep. 706, 64 N. E. 825, holding actual presence of accused in 
 demanding state at time of crime is necessary to make him fugutive. 
 
 Cited in note (28 L.R.A. 289) on who are fugitives subject to extradition. 
 Illegality of extradition nn defense. 
 
 Cited in Knox v. State, 164 Ind. 230, 108 Am. St. Rep. 291, 73 N. E. 255, 3 A. 
 & E. Ann. Cas. 539, holding that a fugitive fleeing from justice from one state 
 to another can when extradited be tried for crime other than the one for which 
 he was returned.. 
 
1 L.R.A. 370] L. R. A. CASES AS AUTHORITIES. 88 
 
 Cited in notes (15 L.R.A. 177) on wrongful bringing of criminal into juris- 
 diction as defense; (12 L.R.A.(N.S.) 225, 226) on right of person wrongfully 
 brought into jurisdiction to release on habeas corpus. 
 
 Distinguished in Kingen v. Kelley, 3 Wyo. 570, 15 L. R. A. 180, 28 Pac. 36, 
 holding wrongful bringing of criminal into state where crime was committed not 
 a defense. 
 
 Disapproved in effect in Re Cook, 49 Fed. 839, holding, after surrender of 
 prisoner to demanding state, regularity of extradition cannot be questioned. 
 Review on linlicnn corpus. 
 
 Cited in footnotes to Re Reinitz, 4 L. R. A. 236, which holds Federal court 
 may issue habeas corpus to inquire into detention of extradited person under 
 process of state court; Ex parte Tod, 47 L. R. A. 566, which holds judge author- 
 ized to issue habeas corpus may review extradition proceedings; State ex rel. 
 McNichols v. Justus, 55 L. R. A. 325, which holds upon habeas corpus review 
 court will not consider illegal detention prior to extradition warrant. 
 
 1 L. R. A. 374, DEHM v. HINMAN, 56 Conn. 320, 15 Atl. 741. 
 Trespasser a1> initio. 
 
 Cited in Anderson v. Cowles, 72 Conn. 338, 77 Am. St. Rep. 310, 44 Atl. 477, 
 holding failure to return search warrant renders acts done trespasses ab initio; 
 Boston & M. R. Co. v. Small, 85 Me. 466, 35 Am. St. Rep. 379, 27 Atl. 349, hold- 
 ing failure to seize intoxicating liquors under search warrant departure from 
 authority, rendering officer trespasser ab initio; Piedmont Hotel Co. v. Hender- 
 son, 9 Ga. App. 683, 72 S. E. 51, holding that failure to take person arrested 
 without warrant before magistrate within reasonable time make arrest trespass 
 ab initio. 
 Liability for assisting: in unlawful arrest. 
 
 Cited in note (14 L.R.A.(N.S.) 1126) on liability for assisting in unlawful 
 arrest or subsequent detention. 
 
 1 L. R. A. 375, STAMFORD v. STAMFORD HORSE R. CO. 56 Conn. 381, 15 
 
 Atl. 749. 
 Remedies for obstruction of pulilic places. 
 
 Cited in Re Debs, 158 U. S. 582, 39 L. ed. 1102, 15 Sup. Ct. Rep. 900, holding 
 right of United States government to forcibly remove obstruction to interstate 
 commerce or carrying of mails not ground for denying injunction: Xew York, 
 N. H. & H. R. Co. v. Bridgeport Traction Co. 65 Conn. 424, 29 L. R. A. 370. 32 
 Atl. 953, holding railroad company entitled to injunction against unlawful ob- 
 struction of right of way; New York, N. H. & H. R. Co. v. Scovill, 71 Conn. 148, 
 42 L. R. A. 160, 71 Am. St. Rep. 159, 41 Atl. 246, holding railroad company 
 entitled to injunction against future trespasses on station grounds by unau- 
 thorized hackman; State, Cape May, D. B. & S. P. R. Co., Prosecutor, v. Cape May. 
 58 N. J. L. 570, 34 Atl. 397, upholding municipality's right to remove, without 
 resort to courts, unauthorized street railroad constructed, without authority, in 
 highway; Central R. & Electric Co.'s Appeal, 67 Conn. 214, 35 Atl. 32, holding 
 increased expense occasioned by location of tracks in street recoverable from 
 railway company by city charged with maintenance; Canastota Knife Co. v. 
 Newington Tramway Co. 69 Conn. 176, 36 Atl. 1107 (concurring opinion), ma- 
 jority denying adjoining owner's right to recover for construction of electric rail- 
 way in highway; Dawson v. Orange, 78 Conn. 117, 61 Atl. 101, on right of mu- 
 nicipality to institute suits for equitable relief from obstructions in highway 
 under its care. 
 
 Cited in notes (39 L. R. A. 651) on municipal power over nuisances affecting 
 
89 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. S7S 
 
 highways and waters; (51 L. R. A. 660) on right of municipality to injunction 
 
 against public nuisance; (5 L. R. A. 663) on injunction to restrain irreparable 
 
 injury. 
 
 Use of streets by railroads. 
 
 Cited in Atty. Gen. ex rel. Bos. & M. R. Co. v. Derry & P. Electric R. Co. 71 
 N. H. 515, 53 Atl. 443, holding authority to construct railway between termini 
 over such highways as may be necessary for public accommodation does not au- 
 thorize construction of branch; Daly v. Milwaukee Electric R. & Light Co. 119 
 \Vis. 401, 96 N. W. 832, holding railway company liable for injury to person, 
 due to unlawful running of freight cars upon street railway tracks. 
 
 Cited in note (2 L. R. A. 59) on right to use of public streets by railroads. 
 
 Distinguished in Watson v. Fairmont & Suburban R. Co. 49 W. Va. 536, 39 S. E 
 193, holding franchise to construct street railway, granted by city under powers 
 delegated by legislature, sufficient, whether authorized by charter or not. 
 Injunction nnaiiist wrong; remediable by act of complainant. 
 
 Cited in Mackenzie v. Minis, 132 Ga. 332, 23 L.R.A.(N.S.) 1008, 63 S. E. 900 T 
 16 A. & E. Ann. Cas. 723, holding that an injunction would lie for trespass 
 though plaintiff could have forceably removed trespasser and his goods. 
 
 1 L. R. A. 377, AMES v. HAGER, 13 Sawy. 473, 36 Fed. 129. 
 .1 iii-i-d i-t ii-ii of United States circuit courts. 
 
 Followed in East Tennessee, V. & G. R. Co. v. Atlanta & F. R. Co. 15 L. R. A. 
 112, 49 Fed. 615, holding act of March 3, 1875, 1. a substitute for U. S. Rev. 
 Stat. 629, subds. 1-3, U. S. Comp. Stat. 1901, p. 503, prescribing the district 
 in which to sue. 
 
 Cited in Johnson v. Wells, F. & Co. 91 Fed. 3, holding that circuit court can- 
 not remove from state court case under revenue acts involving less than $2,000. 
 
 1 L. R. A. 378, LAPLEINE v. MORGAN'S L. & T. R. ft S. S. CO. 40 La. Ann. 
 
 661, 4 So. 875. 
 
 Judgment used in evidence in Xeal v. Lapleino, 48 La. Ann. 426, 19 So. 261. 
 Wife as -witness in action by husband. 
 
 Cited in Watson v. Lyons, 51 La. Ann. 1699, 26 So. 440, holding mother dis- 
 qualified as witness in suit by father in his own behalf for expense and mental 
 suffering; Watson v. Lyons, 51 La. Ann. 1702, 26 So. 440, and St. Louis, I. M. & 
 S. R. Co. v. Rexroad, 59 Ark. 184, 26 S. W. 1037, holding wife competent in 
 action for benefit of minor child. 
 Proximate cause. 
 
 Cited in Turner v. Nassau Electric R. Co. 41 App. Div. 216, 58 N. Y. Supp. 490 r 
 holding injury precipitating delirium tremens proximate cause of death; Ran- 
 dall v. New Orleans & N. K. R. Co. 45 La. Ann. 789, 13 So. 166, holding ejectment 
 from train of one afterwards seized with typhoid not proximate cause of death; 
 Seckinwr v. Philibert & J. Mfg. Co. 129 Mo. 606, 31 S. W. 957, holding question 
 whether blow on chest was proximate cause of consximption, for jury; Pautz v. 
 Plankinton Packing Co. 118 Wis. 51, 94 N. W. 654, holding defective wooden 
 wheel transmitting power to iron wheel, causing latter to break, proximate cause 
 of injury resulting therefrom; Parkinson v. Kertum, 148 Iowa, 222, 127 N. W. 
 208. holding that bumping of plank against woman's side was not proximate 
 cause of insanity following premature delivery of child. 
 
 Cited in footnote to Missouri P. R. Co. v. Columbia, 58 L. R. A. 399, which 
 holds piling grain doors where they are blown onto track by unusual gale not 
 proximate cause of wreck. 
 
1 L.R.A. 378] L. R. A. CASES AS AUTHORITIES. 90 
 
 Cited in notes (6 L. R. A. 194) on proximate and remote cause of injury; (7 
 
 L. R. A. 132) on regarding proximate, not remote, cause of injury; (8 L. R. A. 
 
 83) on co-operating causes of injury; (5 L. R. A. 787) on supervening causes of 
 
 injury; (14 Am. St. Rep. 287; 36 Am. St. Rep. 829) on proximate and remote 
 ' cause. 
 
 Doty of care to passengers. 
 
 Cited in note (6 L. R. A. 244) on care and diligence required of carriers ot 
 
 passengers. 
 
 Previous condition as affecting recovery for negligent injury. 
 
 Cited in Bray v. Latham, 81 Ga. 644, 8 S. E. 64, holding damages recoverable 
 
 for aggravation of existing disorder by tortious burning of dwelling; Jordan v. 
 
 Seattle, 30 Wash. 305, 70 Pac. 743, holding city liable for proximate consequence 
 
 of injury caused by defective sidewalks, although augmented by physical condi- 
 tion of injured person; Louisville & N. R. Co. v. Daugherty, 32 Ky. L. Rep. 139ti. 
 15 L.R.A.(N.S.) 744, 108 S. W. 336, holding railroad company liable when by 
 obstructing street it caused plaintiff, a sick woman, to become seriously ill be- 
 cause of such exposure though she would not have been affected had she not 
 been sick. 
 
 Cited in footnotes to Maguire v. Sheehan, 59 L.R.A. 496, which holds that 
 
 liability for injury cannot be escaped because of condition produced by voluntary 
 use of alcohol, retarding recovery; Chicago City R. Co. v. Saxby, 68 L.R.A. 164. 
 which sustains right of injured person to recover for tuberculous condition of 
 
 knee resulting from injury, notwithstanding fact that tuberculosis was organic 
 and mistakes in treatment. 
 
 Cited in notes (16 L. R. A. 268, 269) on effect of previous disease of person 
 
 injured, on liability for injury; (11 L. R. A. 44) on measure of damages for per- 
 sonal injury caused by negligence; (69 L.R.A. 519) on care due to sick, infirm. 
 or helpless persons, with whom no contract relation is sustained; (10 Am. St. 
 Rep. 65, 66) on previous disease of person injured as defense or mitigation of 
 damages. 
 
 1 L. R. A. 380, WOODRUFF v. WOODRUFF, 44 N. J. Eq. 349, 16 Atl. 4. 
 Construction of doubtful clauses in deeds. 
 
 Cited in Graves v. Deterling, 120 N. Y. 455, 24 N. E. 655, construing pro- 
 vision in deed subjecting land to burden of maintaining park, a covenant: Ely- 
 ton Land Co. v. South & North Ala. R. Co. 100 -Ala. 407, 14 So. 207, refusing to 
 construe proviso in deed without reservation of right of re-entry as a condition 
 subsequent; Los Angeles University v. Swarth, 54 L. R. A. 265, footnote, p. 262. 
 46 C.' C. A. 651, 107 Fed. 802, holding clause in deed that conveyance on express 
 condition that land shall be used as college campus a covenant; Diepenbrock v. 
 Luiz, 159 Cal. 719, 115 Pac. 743, holding that where lease is to end on sale of 
 premises, provided lessor pays lessee for improvements, such proviso is condition 
 to termination of lease; Silver Springs, 0. & G. R. Co. v. Van Xess, 45 Fla. 573, 
 34 So. 884, holding that in determining whether a clause in a deed is a covenant 
 or condition the entire instrument and purposes of the grant will be considered 
 to ascertain intent of parties and construction most favorable to grantee will be 
 taken; Mac Kenzie v. Presbytery of Jersey City, 67 X. J. Eq. 659, 3 L.R.A.(N.S.) 
 232, 61 Atl. 1027, holding words seemingly appropriate to a condition only, may 
 introduce a covenant as well and the entire clause must be considered as to mean- 
 ing of the words; Buck v. Macon, 85 Miss. 582, 37 So. 460, holding a deed con- 
 veying land for school purposes only, is not forfeited by nonuser for two and 
 one half years, whether the deed be upon condition subsequent or not, and citing 
 
91 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 380 
 
 annotation also on this point; St. Peter's Church v. Bragaw, 144 N. C. 129, 10 
 L.R.A. (X.S.) 636, 56 S. E. 688, holding a provision in a deed not to use property 
 as cemetery not condition subsequent but a covenant inforceable in equity; 
 Minard v. Delaware. L. & \Y. R. Co. 139 Fed. 63, on construction of entire deed 
 ^md words therein whether in form of condition or covenant, as constituting a 
 covenant as against a condition. 
 
 Cited in notes (12 Am. St. Rep. 819) on construction of deed; (79 Am. St. Rep. 
 750) on what words create condition subsequent. 
 Ascertainment of price as condition precedent. 
 
 Distinguished in Howison v. Bartlett, 147 Ala. 413, 40 So. 757, holding survey 
 by a chosen surveyor as provided in agreement not condition precedent to com- 
 pletion of contract. 
 Delivery and acceptance of deed. 
 
 Cited in note (4 L. R. A. 313) on delivery of deed essential to transfer of title. 
 Acceptance and specific performance of unilateral or option contracts. 
 
 Cited in Dynan v. McCulloch, 46 N. J. Eq. 16, 18 Atl. 822, holding filing of bill 
 puts complainant under obligation to perform contract; Say ward v. Houghton, 
 119 Cal. 548, 51 Pac. 854, holding lack of mutuality removed by offer to per- 
 form; Perry v. Paschal, 103 Ga. 137, 29 S. E. 703, decreeing specific perform- 
 ance where optional vendee tendered agreed purchase price of land; Ide v. Leiser, 
 10 Mont. 12, 24 Am. St. Rep. 17, 24 Pac. G95, holding option extended without 
 consideration, if accepted before retraction, binding on landowner; Black v. 
 Mat'.dox, 104 Ga. 165, 30 S. E. 723, holding tender of vendee's assignee sufficient 
 to entitle him to specific performance of contract signed by vendor only; McPher- 
 son v. Fargo, 10 S. D. 618, 66 Am. St. Rep. 723, 74 S. W. 1057, holding vendee's 
 mere failure to sign contract for sale, no objection to its enforcement; Kerr v. 
 Moore. 6 Cal. App. 307, 92 Pac. 107, holding that where vendee without vendor's 
 objection improved land, such act may be considered in determining whether the 
 conveyance is of a character warranting specific performance; Elliott v. Delaney, 
 217 Mo. 33, 116 S. W. 494, holding that consideration for an option to support 
 specific performance must be distinct and expressed as consideration for a right 
 to purchase; Pollock v. Brookover, 60 W. Va. 79, 6 L.R.A. (X.S.) 408, 53 S. E. 
 795, holding that upon payment of consideration and signing of option it becomes 
 an executed contract of right to purchase and an executory agreement to pur- 
 chase which may be specifically enforced by optionee; Western Timber Co. v. 
 Kalama River Lumber Co. 42 Wash. 628, 6 L.R.A.(X.S.) 401, 114 Am. St. Rep. 
 137, 85 Pac. 338, 7 A. & E. Ann. Cas. 667, holding that failure of purchaser to 
 sign memorandum of agreement for sale of realty does not prevent specific per- 
 formance in his favor; Armstrong v. Maryland Coal Co. 67 W. Va. 603, 69 S. E. 
 395, holding that vendee cannot claim lack of mutuality as excuse for not per- 
 forming option by agent of owner where he knows that vendor is agent; Bride v. 
 Reeves. 36 App. D. C. 482, granting specific performance to purchaser, though 
 contract of sale contains no promise to pay price. 
 
 Annotation cited in Lane v. Pacific & I. X. R. Co. 8 Idaho, 238, 67 Pac. 656, 
 holding that by acceptance and action under contract receiving benefits therefrom 
 the acceptor impliedly agrees to abide by the covenants therein. 
 
 Cited in footnotes to Hodges v. Rowing, 7 L.R.A. 87, which holds mere failure 
 of vendor to sign contract not fatal to enforcement; Livesley v. Johnston, 65 
 L.R.A. 783, which holds that specific performance of contract for sale of hops 
 will not be refused for lack of mutuality where seller would have been entitled 
 to decree for specific performance on purchaser's capricious and fraudulent refusal 
 to approve the hops; Frank v. Stratford-Handcock, 67 L.R.A. 571, which holds 
 
1 L.R.A. 380] L. R. A. (ASKS AS AUTHORITIES. 92 
 
 absence of obligation of one having option to purchase land to make the pur- 
 chase no bar to his right to have contract enforced against vendor. 
 
 Cited in notes (21 L.R.A. 131) on what an acceptance of an option is; (6 L.R.A. 
 (N.S.) 404) on right to specific performance of option as affected by lack of 
 mutuality; (118 Am. St. Rep. 596, 600) on specific performance of options. 
 Uncertainty fatal to specific performance. 
 
 Cited in Edwards v. Rives, 35 Fla. 98, 17 So. 416, holding failure of proof as- 
 to price and time of payment of contract for sale of land fatal to specific perform- 
 ance; Park v. Minneapolis, St. P. & S. Ste. M. R. Co. 114 Wis. 352, 89 N. W. 
 532, refusing specific performance of contract uncertain in terms by reason of 
 defendant's fault; Soloman v. Wilmington Sewerage Co. 142 N. C. 447, 6 L.R.A 
 (N.S.) 396, 55 S. E. 300, holding that a contract with a sewer company for sewer 
 service not binding the party to any length of use of service cannot be enforced 
 specifically against the company for lack of mutuality; Huston v. Harrington, 
 58 Wash. 54, 107 Pax:. 874, refusing specific performance of contract of sale 
 where price is uncertain. 
 
 Cited in footnote t<. Stanton v. Singleton, 47 L. R. A. 334, which refuses to 
 decree specific performance for lack of certainty and exactness of contract. 
 
 1 L. R. A. 385, PEOPLE v. WELCH, 71 Mich. 548, 39 N. W. 747. 
 Guilty Intent as element of offense. 
 
 Cited in People v. Hughes, 86 Mich. 185, 48 N. W. 945, holding saloon keeper 
 not liable criminally for unknown violation of law by his clerk; People v. Snow- 
 berger, 113 Mich. 90, 67 Am. St. Rep. 449, 71 N. W. 497, holding lack of guilty 
 intent no excuse for selling adulterated food; People v. Curtis, 129 Mich. 3, 95 
 Am. St. Rep. 404, 87 N. W. 1040, holding illegal sale of liquor to minor not ex- 
 cused by absence of guilty intent; State v. Bradley, 15 S. D. 152, 87 N. W. 590, 
 holding that good faith may be shown in prosecution for sale of liquor to minor, 
 under statute making sale prima facie evidence of criminal intent; People v. 
 Bronner, 145 Mich. 401, 108 N. W. 672, holding burden of proof on liquor seller 
 to show absence of guilty intent by showing that minor appeared to be of age and 
 that they were warranted and did believe him to be such; People v. Lundell, 136 
 Mich. 305, 99 N. W. 12, holding saloon keeper liable for keeping of saloon open 
 during prohibited hours by his bar tender; People v. Possing, 137 Mich. 304, 100 
 N. W. 396, holding saloon keeper liable for the keeping of saloon open on Sunday 
 by his bartender against his instructions; Ollre v. State, 57 Tex. Crim. Rep. 543, 
 123 S. W. 1116 (dissenting opinion), on liability of saloonkeeper for illegal sales 
 by servant against instructions; People v. Jewell, 138 Mich. 623, 101 N. W. 835, 
 on power to make statutes declaring an act criminal in the absence of criminal 
 intent. 
 
 Cited in notes (10 L.R.A. 80) on sale of liquor to minor; (25 L.R.A.(X.S.) 670) 
 on ignorance of minority of purchaser of liquor as defense to prosecution for 
 sale; (78 Am. St. Rep. 239, 240, 254) on criminal intent as element of crime. 
 
 1 L. R. A. 387, TOPEKA v. ZUFALL, 40 Kan. 47, 19 Pac. 359. 
 Question for jury as to -whether beverage intoxicating. 
 
 Cited in State v. Parker, 139 N. C. 588, 51 S. E. 1028, holding that in cases 
 of doubt as to the presence of alcohol it is proper to leave the question as to its 
 presence to the jury. 
 
 Cited in notes (2 L. R. A. 408; 20 L. R. A. 649) on what liquors are intox- 
 icating; (12 Am. St. Rep. 353) on determination of question whether liquor is 
 intoxicating. 
 
93 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 397 
 
 Power of cities over excise within their limits. 
 
 Cited in Re Thomas, 53 Kan. 661, 37 Pac. 171, holding cities may control 
 traffic within their limits in spite of state prohibitory and restrictive law; El 
 Dorado v. Beardsley, 53 Kan. 365, 36 Pac. 746, sustaining conviction under ordi- 
 nance prohibiting sale of intoxicating liquors without permit; Topeka v. Raynor, 
 61 Kan. 12, 58 Pac. 557, holding ordinance declaring public drinking places "nui- 
 sances," constitutional. 
 
 Cited in note (17 L.R.A.(N.S.) 50) on power of municipality to punish act as 
 to liquor also an offense under state law. 
 
 1 L. R. A. 388, ROCKLAND WATER CO. v. CAMDEN & R. WATER CO. 80 
 
 Me. 544, 15 Atl. 785. 
 Impairing- obligation of contracts. 
 
 Cited in Machias Boom v. Sullivan, 85 Me. 345, 27 Atl. 189, holding obligations 
 not impaired by exercise of rights reserved in state corporation charter; Dans- 
 ville v. Dansville Water Co. 178 111. 317, 69 Am. St. Rep. 304, 53 N. E. 118 
 (dissenting opinion), majority holding legislature may regulate water rates in 
 spite of contract between city and water company under act authorizing water- 
 works construction. 
 
 Cited in note (50 L. R. A. 146) on privilege of using streets as a contract 
 within constitutional provision. 
 Strict construction of legislative grant. 
 
 Cited in notes (9 L. R. A. 34) on strict construction of grant of corporate 
 right or privilege; (9 L. R. A. 195) on franchises of water companies. 
 
 Distinguished in Brown v. Gerald, 100 Me. 369, 70 L.R.A. 481, 109 Am. St. Rep. 
 526, 61 Atl. 785, holding that a corporation for creation of electrical or water 
 power for manufacturing purposes are not entitled to power of eminent domain. 
 Purposes justifying exercise of eminent domain. 
 
 Cited in note (22 L.R.A.(N.S.) 139) on right to exercise eminent domain for 
 production and distribution of electricity for light, heat and power. 
 
 1 L. R. A. 397, MERCANTILE TRUST CO. v. MISSOURI, K. & T. R. CO. 36 
 Fed. 221. 
 
 Motion to extend receivership, consolidate suits, file cross-bill, etc., in 41 Fed. 8. 
 
 Application by receiver appointed by state court to obtain possession of prop- 
 erty in 48 Fed. 352. 
 Powers of trustee as to foreclosure. 
 
 Cited in Toler v. East Tennessee, V. & G. R. Co. 67 Fed. 179, holding trustee 
 with power to foreclose may exercise power against vote of majority bondholders; 
 Farmers' Loan & T. Co. v. Penn Plate-Glass Co. 43 C. C. A. 116, 103 Fed. 133, 
 holding trustee has right to foreclose mortgage on default, without express grant; 
 Guardian Trust Co. v. White Cliffs Portland Cement & Chalk Co. 109 Fed. 530, 
 holding provision directing trustee to foreclose upon bondholder's request, no 
 limitation on trustee's right to foreclose; Boley v. Lake Street Elev. R. Co. 64 
 111. App. 313. holding restriction on bondholder's right to sue not to be set aside in 
 opposition to plain meaning; McFadden v. Mays Landing & E. H. City R. Co. 
 49 X. J. Eq. 188, 22 Atl. 932, holding trustee's power of sequestration and sale 
 under mortgage, cumulative; Morgan's L. & T. R. & S. S. Co. v. Texas C. R. Co. 
 137 U. S. 192, 34 L. ed. 632, 11 Sup. Ct. Rep. 61, holding power of sale by 
 advertisement in trustee upon bondholder's request, cumulative; Low v. Black- 
 ford, 31 C. C. A. 22, 58 U. S. App. 751, 87 Fed. 399, holding equity court not 
 bound to decree sale in strict conformity to terms of mortgage; Atlantic Trust 
 
1 L.R.A. 397] L. R. A. CASES AS AUTHORITIES. 94 
 
 Co. v. Dana, 62 C. C. A. 668, 128 Fed. 220, holding right of trustee to possession 
 of corporation property properly asserted by obtaining leave to intervene in 
 previous creditor's suit in which receiver was in possession. 
 
 Distinguished in General Electric Co. v. La Grande Edison Electric Co. 70 
 Fed. 25, holding bondholder cannot ignore trustee in foreclosure. 
 When receiver will be appointed. 
 
 Cited in Pearson v. Kendrick. 74 Miss. 245. 21 So. 37, holding beneficiary of 
 deed of trust on property subject to prior lien may have receiver appointed 
 where security precarious. 
 
 Cited in footnote to Merritt v. Gibson, 15 L. R. A. 277, which holds receiver 
 may be appointed after foreclosure sale, where mortgagee is purchaser. 
 
 Cited in notes (11 L.R.A. 480) on foreclosure of railroad mortgage, appointment 
 of receiver, and authority; (72 Am. St. Rep. 88, 89) as to when appointment of 
 receiver is proper. 
 When foreclosure suit premature. 
 
 Distinguished in Central Trust Co. v. Worcester Cycle Co. 35 C. C. A. 553, 
 93 Fed. 718, Reversing 90 Fed. 585. holding suit brought by mortgage trustee 
 within six months after default, premature. 
 
 1 L. R. A. 403, WATT v. PEOPLE, 126 111. 9, 18 N. E. 340. 
 Jurisdiction of crime committed in several counties. 
 
 Cited in Chicago v. Knobel, 232 111. 114, 83 X. E. 459, on selection of jurors 
 from county, where crime was committed. 
 
 Cited in footnote to Coleman v. State, 64 L. R. A. 807, which holds that juris- 
 diction of court first acquiring it, exclusive, where courts of two counties have 
 concurrent jurisdiction of crime. 
 
 Cited in note (7 L.R.A. (X.S.) 673) on power to provide for indictment in 
 county or district other than where crime alleged to have been committed. 
 \ il:ii issiliilit > of evidence because of relation to other evidence. 
 
 Cited in People v. Hughson, 154 N. Y. 162, 47 X. E. 1092, holding declaration 
 of deceased that husband shot her admissible to show effect of his reply; Musser 
 v. State, 157 Ind. 433, 61 X. E. 1, holding evidence competent tending to connect 
 with homicide, other persons present ; Kingsbury v. People, 44 Colo. 406, 99 Pac. 
 61, holding contradictory letters admissible not as to facts contained but only 
 as throwing light on conversation accused had with officer of prosecution; People 
 v. Hughson, 12 N. Y. Crim. Rep. 491, admitting declarations made by another 
 to a party, to be taken not as evidence but to throw light on the answers made 
 thereto in court. 
 
 Cited in note (25 L.R.A.(X.S.)543, 549) on uncontradicted statement in pres- 
 ence of accused as confession. 
 Incompetent evidence not prejudicial. 
 
 Cited in Carter v. Carter, 37 111. App. 225, holding conclusion of witness that 
 adultery committed, from facts testified to, ground for reversal. 
 
 Cited in note (46 L. R. A. 651) on unfair or irrelevant argument or statements 
 of fact by prosecuting attorney must be prejudicial to reverse conviction. 
 Sufficiency of evidence. 
 
 Cited in Scott v. People, 141 111. 215, 30 X. E. 329, holding verdict should be 
 sustained where evidence sufficient and no error to prejudice defendant. 
 Reasonable donbt. 
 
 Followed in McQueary v. People, 48 Colo. 224, 110 Pac. 210. 1 Ann. Cas. 560; 
 People v. Horchler, 231 111. 573, 83 X. E. 428; People v. Zajicek, 233 111. 216, 84 
 
95 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 412 
 
 X. E. 249, holding instruction proper advising jurors that they were not at 
 liberty to disbelieve as jurors if from the evidence they believed as men. 
 
 Cited in State v. Potts, 20 Xev. 398, 22 Pac. 754, and State v. Morrison, 67 
 Kan. 162, 72 Pac. 554, holding instruction as to reasonable doubt not prejudicial. 
 
 Cited in note (17 L. R. A. 705, 710) on what constitutes a reasonable doubt 
 in criminal cases. 
 Comments by prosecution on failure to testify. 
 
 Cited in Culwreath v. State, 96 Ark. 181, 131 S. W. 676, holding that state- 
 ment that accused has not seen fit to say, nor shown where he was at time of 
 crime is not comment on his failure to testify; Jackson v. State, 45 Fla. 40, 34 
 So. 243, 3 A. & E. Ann. Cas. 164, 14 Am. Crim. Rep. 20, holding comment on fail- 
 ure of accused to testify in his own behalf, in good faith not by way of argument 
 based thereon, by state counsel, ground for reversal; Lipsey v. People, 227 111. 
 378, 81 N. E. 348, holding that remarks made by prosecution to jury on conver- 
 sation of accused with police officer did not call attention of jury to accused's 
 failure to testify in his own behalf; People v. McMahon, 244 111. 60. 91 N. E. 
 104, holding that state's attorney may state that evidence of people is uncontra- 
 dicted, though accused is only person who could contradict it; R. v. Corby, 30 X. 
 S. 333, on reference to failure of accused to testify in his own behalf intended, 
 to direct attention of jury to such neglect. 
 
 1 L. R. A. 411, MISSOURI P. R. CO. v. McELYEA, 71 Tex. 386, 10 Am. St. Rep. 
 
 749, 9 S. W. 313. 
 Regulations for safe conduct of hnsinesa. 
 
 Cited in Wallace v. Boston & M. R. Co. 72 N. H. 515, 57 Atl. 913, holding 
 master not relieved from duty to run trains safely by promulgation of suitable 
 rules and appointment of telegraph despatches to execute them; Beaumont, S. L. 
 & W. R. Co. v. Olmstead, 56 Tex. Civ. App. 104, 120 S. W. 596, holding correct 
 charge that railroad was under duty to conductor to exercise reasonable care to 
 see that bridges were reasonably safe. 
 
 Cited in notes (43 L. R. A. 342) on the relation between the doctrine of com- 
 mon employment and the duty of master to promulgate rules for safe conduct 
 of business; (54 L. R. A. 90) on how far non-delegable duty to carry out regula- 
 tion of master absolute. 
 
 1 L. R. A. 412, VALLEY R. CO. v. LAKE ERIE IRON CO. 46 Ohio St. 44, IS 
 
 N. E. 486. 
 Indeflniteness in pleading. 
 
 Cited in Golley & F. Iron Works v. Callan, 9 Ohio C. C. 221, holding pleading- 
 in action for negligence sufficient to enable testimony to go to jury. 
 Ultra vires dealings in stock of other corporations or associations. 
 
 Cited in Merchants' Nat. Bank v. Standard Wagon Co. 6 Ohio N. P. 268, holding 
 corporation could not form partnership; Knowles v. Sandercock, 107 Cal. 643, 
 40 Pac. 1047, holding furniture corporation could not subscribe to stock of hotel 
 corporation; McAlester Mfg. Co. v. Florence Cotton & Iron Co. 128 Ala. 241, 
 30 So. 632, holding corporation authorized to invest loan money not permitted 
 to subscribe to stock of other corporation; Marburg v. Kentucky Union Land 
 Co. 10 C. C. A. 410, 22 U. S. App. 267, 62 Fed. 351, holding land company could 
 not organize and take all stock of subsidiary companies; Nebraska Shirt Co. v. 
 Horton, 3 Neb. (Unof.) 889, 93 N. W. 225, holding that unless authorized by 
 statute a corporation has no power to subscribe to capital stock of another cor- 
 poration and such a subscription is not binding; State v. Hocking Valley R. Co.. 
 
1 L.R.A. 412] L. R. A. CASES AS AUTHORITIES. 00 
 
 12 Ohio C. C. N. S. 56, holding that statute governing right of a corporation to 
 purchase stock in another, must be strictly construed against the right; Man- 
 nington v. Hocking Valley R. Co. 183 Fed. 156, on power of foreign corporation to 
 purchase stock in another corporation in the state; De Lacroix v. Eid Concrete 
 Steel Co. 8 Ohio N. P. N. S. 507, 19 Ohio S. & C. P. Dec. 781, holding that result- 
 ing trust in favor of corporation does not arise where stockholder buys stock 
 from another stockholder for benefit of corporation for purpose of retiring him 
 as officer of the corporation. 
 
 Cited in notes (7 L. R. A. 606; 18 L. R. A. 252) upon power of corporation to 
 deal in stock of other corporations; (70 Am. St. Rep. 165) on ultra vires purchase 
 by corporation of its own or another corporation's stock; (41 L. ed. U. S. 1010; 
 36 Am. St. Rep. 135) on right to acquire stock in another corporation; (18 
 L.R.A. 252) on power of corporation to deal in stock. 
 
 Distinguished in Smith v. Newark, S. & S. R. Co. 8 Ohio C. C. 591, holding 
 corporation liable for assessments on stock of another corporation owned by it; 
 Central Trust Co. v. Columbus, H, Valley & T. R. Co. 87 Fed. 826, holding com- 
 pany with power to purchase or subscribe for stock of transportation company 
 may guarantee bonds of existing railway; Stone v. C. D. & T. Traction Co. 4 
 Ohio N. P. N. S. 109, 16 Ohio S. & C. P. Dec. 650, holding that corporations may 
 hold stock in mutual insurance association for their own protection; Marriott v. 
 Columbus, S. & H. Ry. 16 Ohio S. & C. P. Dec. 141, holding that corporation may 
 take stock in another corporation as payment for loan made to it in furtherance 
 of the business of the lending corporation. 
 Recovery of voluntary payments. 
 
 Cited in Phillips v. McConica, 59 Ohio St. 10. 69 Am. St. Rep. 753, 51 N. E. 
 445, holding payment of legacy by executor to guardian not recoverable; Kinney 
 v. Toledo, 1 Ohio N. P. 376, holding payment of fines by policeman, imposed by 
 police board, not recoverable; Evans v. Hughes County, 3 S. D. 253, 52 N. W. 
 1062, holding payment made for ferry privilege under void statute not recover- 
 able; Vindicator Printing Co. v. State, 68 Ohio St. 371, 67 X. E. 733, denying 
 right of county to recover money voluntarily paid on illegal claim for printing; 
 Payne v. Witherbee, S. & Co. 200 N. Y. 576, 93 N. E. 954, holding that money 
 paid by corporation under mistake of law cannot be recovered back, 
 
 1 L. R. A. 414, SNELL v. LEVITT, 110 N. Y. 395, 18 N. E. 370. 
 Creation of easement. 
 
 Cited in footnote to Gulf, C. & S. F. R. Co. v. Smith, 2 L. R. A. 281, which 
 holds covenant running with land not created by stipulation to maintain fence. 
 Von user jis affecting? easement. 
 
 Cited in Johnson v. Stitt, 21 R. I. 433, 44 Atl. 513, and Tyler v. Cooper, 47 
 Hun, 95, holding easement by grant not lost by nonuser; Marshall v. Wennin- 
 ger, 20 Misc. 529, 46 N. Y. Supp. 670, holding mere nonuser not abandonment of 
 right of way destroying marketability of title; Roby v. New York C. & H. R. R. 
 Co. 142 N. Y. 181, 36 N. E. 1053, holding lease of railroad for coal yards and 
 trestle not evidence of abandonment of easement for railroad; Heughes v. Ga- 
 lusha Stove Co. 133 App. Div. 819, 118 N. Y. Supp. 109, on nonuser of alleys as 
 not operating to extinguish easement therein; Lewisohn v. Lansing Co. 51 Misc. 
 282, 100 N. Y. Supp. 1077, holding occupation of and nonrecognition of existence 
 of a street an abandonment of easement therein which cannot be revived by sub- 
 sequent purchaser of adjourning lots many years later. 
 
 Limited and distinguished in Welsh v. Taylor, 134 N. Y. 453, 18 L. R. A. 538, 
 31 N. E. 896, Reversing 27 N. Y. S. R. 301, 7 N. Y. Supp. 376, holding easement 
 in way by grant not lost by mere nonuser. 
 
97 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 414 
 
 Intention to abandon easement or right in land. 
 
 Cited in Suydam v. Dunton, 84 Hun, 509, 32 N. Y. Supp. 333, holding non- 
 user, with acts showing intention to abandon, destroyed easement of way over 
 farm; Weed v. McKeg, 37 Misc. 110, 74 N. Y. Supp. 250, holding acquiescence by 
 owner of right of way in obstruction over alley way shown; Lake Erie & W. R. 
 Co. v. Ziebarth, 6 Ind. App. 236, 33 N. E. 256, holding intention to abandon ease- 
 ment shown by locating line over other land; White v. Manhattan R. Co. 139 N. 
 Y. 26, 34 N. E. 887, and Hoch v. Metropolitan Elev. R. Co. 59 Hun, 543, 13 N. Y. 
 Supp. 633, holding street easements abandoned by authorizing construction of 
 elevated railroad; Black v. Elkhorn Min. Co. 163 U. S. 450, 41 L. ed. 223, 16 Sup. 
 Ct. Rep. 1101, holding rights in mining claim abandoned by conveyance and 
 surrender of possession; Hennessy v. Murdock, 137 N. Y. 326, 33 N. E. 330, 
 Reversing 43 N. Y. S. R. 750, 17 N. Y. Supp. 276, holding evidence of intent to 
 abandon easement must be clear and convincing; Bell v. New York, 77 App. Div. 
 452, 79 N. Y. Supp. 347, holding right to locate public basin at certain point 
 abandoned by city by consent to construction of pier and acquiescence in its use 
 for fifty years ; Deeves v. Constable, 87 App. Div. 358, 84 N. Y. Supp. 592, holding 
 erection of business block on half of lot in former residential district inconsistent 
 with covenant requiring building on other half to set back from street; Blenia 
 v. Utica Knitting Co. 73 Misc. 68, 130 N. Y. Supp. 740,, holding that easement in 
 alley is not extinguished by nonuser for less than twenty years without inten- 
 tion of abandoning it; Norris v. Hoffman, 133 App. Div. 599, 118 N. Y. Supp. 156, 
 holding an easement created by reservation in deed was extinguished by lessor 
 to use connected with an intention to abandon no matter for how short a time 
 such circumstances existed; Re Buffalo, 65 Misc. 642, 120 N. Y. Supp. 611, hold- 
 ing that where there is a nonuser for twenty years coupled with acts showing 
 intent to abandon, on which the servient owner has acted, and resuming of 
 easement would operate unjustly added weight given to extinguishment by the 
 acts of the servient owner; Watts v. C. I. Johnson & B. Real Estate Corp. 105 
 Va. 525, 54 S. E. 317, holding nonuser of alley as a right of way is not an 
 abandonment where it is used to admit light and air and a sewer is maintained 
 thereunder; Farrell v. Lockhart, 210 U. S. 148, 52 L. ed. 997, 16 L.R.A. (N.S.) 
 167, 28 Sup. Ct. Rep. 681, holding that where annual labor has not been done on a 
 mineral claim, such fact is not conclusive of abandonment before statutory period 
 has expired in which the work may be done. 
 
 Cited in notes (18 L.R.A. 539) on intention of owner of easement to abandon 
 it as indicated by his acts; (2 L.R.A.(N.S.) 833) on failure to maintain easement 
 as raising presumption of abandonment. 
 
 Distinguished in Foote v. Metropolitan Elev. R. Co. 147 N. Y. 371, 42 N. E. 181, 
 holding intent to abandon street easements acquired by grant not shown by un- 
 recorded instrument reserving to prior owner right to damages from construc- 
 tion of elevated road. 
 Adverse nser as affecting 1 easement. 
 
 Cited in Woodruff v. Paddock, 130 N. Y. 624, 29 N. E. 1021, Affirming 56 Hun, 
 291, 9 N. Y. Supp. 381, holding abutting owner's public right in alley lost by 
 adverse possession; Re New York, 73 App. Div. 399, 77 N. Y. Supp. 31; holding 
 abandonment indicated by nonuser of implied easement in street, with adverse 
 user of 2 feet of it covered by house and fence; Stephens v. Hockemeyer, 46 N. Y. 
 S. R. 330, 19 N. Y. Supp. 666, holding adverse user for twenty years of lots for 
 stable purposes will destroy easement; Lewis v. Xew York & H. R. Co. 162 N. 
 Y. 224, 56 N. E. 540, holding railroad acquired prescriptive rights by adverse 
 as against abutting owners, to maintain viaduct. 
 L.R.A. Au. Vol. I. 7. 
 
1 L.R.A. 414] L. R. A. CASES AS AUTHORITIES. 9& 
 
 Failure to record. 
 
 Cited in Shaw v. New York Elev. R. Co. 78 App. Div. 298, 79 N. Y. Supp. 915, 
 holding grantee not bound by unrecorded consent to construction of elevated rail- 
 road in front of granted premises. 
 Title l>y prescription. 
 
 Cited in Hindley v. Metropolitan Elev. R. Co. 42 Misc. 65, 85 N. Y. Supp. 561,. 
 holding title by prescription defeated by recognition of dormant title within 
 statutory period. 
 
 1 L. R. A. 417, FIRE INS. PATROL v. BOYD, 120 Pa. 624, 6 Am. St. Rep. 
 
 745, 15 Atl. 553. 
 Test of legal public charity. 
 
 Cited in Northampton County v. Lafayette College, 128 Pa. 147, 18 Atl. 516 r 
 24 W. N. C. 523, holding eleemosynary college, maintained partly by tuition fees, 
 exempt from taxation; Episcopal Academy v. Philadelphia, 150 Pa. 573, 30 W. 
 N. C. 531, 25 Atl. 55, holding nonexclusive denominational school a public char- 
 ity; Smith's Estate, 181 Pa. 113, 37 Atl. 114, Affirming 18 Pa. Co. Ct. 212, 5 Pa. 
 Dist. R. 329, holding war memorial monument containing name and bronze stat- 
 ute of giver, public charity; Stuart v. Easton, 21 C. C. A. 151, 39 U. S. App. 238, 
 74 Fed. 858, holding grant of lands for courthouse gift for charitable use; State 
 v. Laramie County, 8 \Yyo. 131, 55 Pac. 451, holding state penitentiary exempt 
 from taxation as charitable institution; People ex rel. State Board of Charities 
 v. New York Soc. for Prevention of Cruelty to Children, 161 N. Y. 242, 55 N. E. 
 1063, Reversing 42 App. Div. 85, 58 N. Y. Supp. 953, holding society for preven- 
 tion of cruelty to children not charitable; Philadelphia v. Masonic Home, 160 
 Pa. 582, 23 L. R. A. 549, 40 Am. St. Rep. 736, 28 Atl. 954, holding home limited 
 to use of Free Masons not a public charity; Re Apprentices' Fund Case, 13 Pa. Co. 
 Ct. 245, 2 Pa. Dist. R. 438, holding gift to city for public works, public charity; 
 Haverford College v. Rhoads, 6 Pa. Super. Ct. 81, holding nonsectarian college, 
 open to all persons educationally qualified, charitable institution ; Funck's Es- 
 tate, 16 Pa. Super. Ct. 438, holding devise of burial ground for burial purposes 
 forever, passed estate in fee simple in trust for charitable use; Com. v. Con- 
 nellsburg, 25 Pa. Co. Ct. 436, holding grant of land to town for the use of its 
 inhabitants, gift to charitable use; Parks v. Northwestern University, 121 111. 
 App. 514, holding a university dependent upon trust funds and incidental tuition 
 fees for maintenance alone a public charity; Richardson v. Mullery. 200 Mass. 
 249, 86 X. E. 319, holding a gift "to a life saving station to be built," the bene- 
 fits therefrom to extend generally to all classes for whom it is to be built, is 
 for establishment of a public charity; Barden v. Atlantic Coast Line R. Co. 152 
 N. C. 328, 67 S. E. 971, holding a railroad relief department maintained for a 
 charitable purpose, a charity though its purpose was not in the gift itself de- 
 scribed as charitable; Hebrew Free Loan Asso. v. Philadelphia, 18 Pa. Dist. R. 
 1071, holding society to loan money without interest to needy and worthy 
 Hebrews was a charity. 
 
 Cited in footnotes to Crerar v. Williams, 21 L. K. A. 454, which holds gift for 
 free public library charitable; People ex rel. Atty. Gen. v. Dashaway Asso. 12" 
 L. R. A. 117, which refuses to hold corporation for promoting the cause of tem- 
 perance as public charity to prevent division of funds among its members; Kelly 
 v. Nichols, 19 L. R. A. 413, which holds trust to keep graves of testator and his 
 sisters in repair not charitable use; Childs v. Firemen's Ins. Co. 35 L. R. A. 99, 
 which construes "boards of fire underwriters" to mean boards composed only of 
 those in business of fire insurance. 
 
 Cited in notes (3 L. R. A. 147; 5 L. R. A. 106; 6 L. R. A. 84) on what consti- 
 
99 L. R. A. CASES AS AUTHORIT1 1>. [1 L.R.A. 41T 
 
 tutes public charities; (16 L.R.A.(N.S.) 847) on effect of devotion of property 
 otherwise nontaxable to purposes of particular society. 
 
 Distinguished in Xewcomb v. Boston Protective Department, 151 Mass. 218, 
 G L. R. A. 780, 24 N. E. 39, holding life and property saving corporation with 
 limited membership not public charity. 
 Statute of charitable uses. 
 
 Cited in footnotes to Adams Female Academy v. Adams, 6 L. R. A. 785, which' 
 holds fund to establish female academy may be used for support of public school ; 
 Re Sellers Chapel, M. E. Church, 11 L. R. A. 282, which holds conveyance of land: 
 to trustees for charitable use only creates trust for such use. 
 
 Cited in notes (3 L. R. A. 146) on charitable trusts under the statute; (5 
 L. R. A. 33) on public charities, statute of uses and trusts; (12 L. R. A. 415) 
 on charitable uses and trusts; (5 L. R. A. 34) on distinction between charitable 
 and other uses; (5 L. R. A. 41) on where beneficiary ascertainable; (5 L. R. A. 
 42) on beneficiary not in being; (5 L. R. A. 37; 6 L. R. A. 511) on what are 
 charitable gifts; (4 L. R. A. 700) on "gifts to public charities are highly favored 
 by the law;" (5 L. R. A. 109) on purposes of trust; when separable, the valid 
 may be sustained; (13 L. R. A. 218) on municipal corporation may take and ad- 
 minister property in trust for charitable uses; (14 L.R.A.(X.S.) 57) on enforce- 
 ment of general bequest for charity or religion; (63 Am. St. Rep. 250) on what 
 are charitable uses or trusts. 
 Perpetuities. 
 
 Cited in footnote to Penny v. Croul, 5 L. R. A. 858, which holds gift of per- 
 petual fund for use of public corporation valid. 
 
 Cited in notes (1 L. R. A. 454) on application of statute against perpetuities; 
 (5 L. R. A. 35) on law against perpetuities; no application to charitable trusts. 
 Nonliability of public or charitable corporation for negligence. 
 
 Approved in Gable v. Sisters of St. Francis, 227 Pa. 258, 75 Atl. 1087, holding 
 trust funds of a charity not subject to dissipation in damage suits for negligence 
 of servants. 
 
 Cited in Sproat v. Directors of Poor, 145 Pa. 604, 29 W. N. C. 463, 23 Atl. 380, 
 raising, but not deciding, question of liability of public charity for tort of em- 
 ployee; Kies v. Erie, 135 Pa. 150, 26 W. N. C. 531, 20 Am. St. Rep. 867, 19 AtL 
 942, holding city not liable for negligence of fireman; Joel v. Woman's Hospital,. 
 89 Hun, 74, 35 N. Y. Supp. 37; Union P. R. Co. v. Artist, 23 L. R. A. 584, 9- 
 C. C. A. 18, 19 U. S. App. 612, 60 Fed. 368; Hearns v. Waterbury Hospital, 66- 
 Conn. 121, 31 L.R.A. 231, 33 Atl. 595, holding charitable hospital not liable 
 to patient for negligent treatment by its servants selected with due care; Collins 
 v. New York Post Graduate Medical School & Hospital, 59 App. Div. 66, 69 N. 
 Y. Supp. 106, holding charitable hospital not liable to pay patient for surgeon'* 
 negligence- Williams v. Indianapolis, 20 Ind. App. 630, 60 N. E. 367, holding 
 city not liable for negligence of physician in city hospital; Richardson v. Car- 
 bon Hill Coal Co. 10 Wash. 656, 39 Pac. 95, and' Pittsburgh, C. C. & St. L. R. Co.. 
 v. Sullivan, 141 Ind. 91, 27 L. R. A. 843, 50 Am. St. Rep. 313, 40 X. E. 138 r 
 holding corporation not liable for negligence of physician selected with care, for- 
 gratuitous service to injured employees; Haas v. Missionary Soc. of Most Holy- 
 Redeemer, 6 Misc. 285, 26 X. Y. Supp. 868. holding religious corporation not 
 liable for negligence of employee selected with due care; Haggerty v. St. Louis, 
 K. & X. W. R. Co. 100 Mo. App. 446, 74 S. W. 456, holding railroad liable for 
 ncirlicrence of surgeon employed by it to treat member of employees' relief de- 
 partment; Peasley v. McKean County Poor District, 26 Pa. Co. Ct. 431, holding' 
 poor district not liable for negligence of its physician in treating inmate of 
 
1 L.R.A. 417] L. R. A. CASES AS AUTHORITIES. 100 
 
 poor house; Lilly v. Scranton, 2 Lack. Legal Xews, 176, 18 Pa. Co. Ct. 434, hold- 
 ing city not liable for acts of policemen or firemen; Brown v. La Societe Fran- 
 eaise Bienfaisance Mutuelle, 138 Cal. 476, 71 Pac. 516, holding mutual benefit 
 society conducting private hospital liable to pay patient for negligence of sur- 
 geon; Workman v. New York, 179 U. S. 580, 45 L. ed. 328, 21 Sup. Ct. Rep. 212 
 (dissenting opinion), majority holding public nature of service by fire-boat not 
 relieve city from liability for maritime tort; Arkansas Midland R. Co. v. Pearson, 
 98 Ark. 411, 34 L.R.A.(N.S.) 320, 135 S. W. 917, holding railroad, gratuitously 
 collecting fund from wages for medical attention to employees, not liable for 
 death of employee from failure to furnish him proper medical attention; Texas 
 C. R. Co. v. Zumwalt, 103 Tex. 606, 30 L.R.A.(X.S.) 1209, 132 S. W. 113, holding 
 railroad maintaining hospital for employees not liable for loss of sight of em- 
 ployee by negligence of surgeon; Hordern v. Salvation Army, 199 X. Y. 235, 32 
 L.R.A.(ISr.S.) 64, 139 Am. St. Rep. 889, 92 N. E. 626, holding salvation army liable 
 for injury to mechanic in repairing boiler; Fordyce v. Woman's Christian Xat. 
 Library Asso. 79 Ark. 562, 7 L.R.A.(N.S.) 490, 96 S. W. 155, holding property of 
 charitable library not subject to execution in satisfaction of judgment against 
 agents or trustees for wrong or misdoing; Farrigan v. Pevear. 193 Mass. 149, 7 
 L.R.A.(X.S.) 483, 118 Am. St. Rep. 484, 78 X. E. 855, 8 A. & E. Ann. Cas. 1109, 
 holding charitable institution not liable for injury to one servant through negli- 
 gent orders given him by another servant, where due care has been used in selec- 
 tion of servants; Abston v. Waldon Academy, 118 Tenn. 33, 11 L.R.A.(X.S.) 1181, 
 102 S. W. 351, holding the corpus of the charity could not be applied in damages 
 to pay a paying pupil injured for want of fire escapes; Leavell v. Western 
 Kentucky Asylum, 122 Ky. 216, 4 L.R.A.(N.S.) 270, 91 S. W. 671, 12 A. & E. 
 Ann. Cas. 827; Plant System Relief & Hospital Dept. v. Dickerson, 118 Ga. 650, 
 45 S. E. 483, on nonliability of charitable institutions for negligence of agents; 
 Adams v. University Hospital, 122 Mo. App. 686, 99 S. W. 453, on nonliability of 
 charitable institutions for negligence of servants or negligence in their selection; 
 Wliittaker v. St. Luke's Hospital, 137 Mo. App. 139, 117 S. W. 1189, as instance 
 of exoneration of charitable institution for negligence of servants based on its 
 fulfilment of a governmental agency. 
 
 Cited in notes (1 L. R. A. 608) on doctrine of respondent superior; (7 L. R. 
 A. 170) on public agencies not liable for negligence of their servants; (2 L.R.A. 
 (X.S.) 558) on what are, charitable institutions within rule exempting from lia- 
 bility for negligence; (21 L.R.A.(X.S.) 810) on liability of fire insurance patrol 
 for injuries; (54 Am. St. Rep. 92) on nonliability of municipal and private corpo- 
 rations for acts of servant; (139 Am. St. Rep. 907) on liability of charitable in- 
 stitution for torts of servants and agents. 
 
 Distinguished in Xewcomb v. Boston Protective Department, 151 Mass. 218, 
 6 L. R. A. 780, 24 N. E. 39, holding life and property saving corporation with 
 limited membership liable for negligence of employees; Winnemore v. Philadel- 
 phia, 18 Pa. Super. Ct. 631, holding damages due to operation of elevator of 
 income producing building devoted to maintenance of charity, chargeable to ex- 
 pense of management thereof; Coleman v. Fire Ins. Patrol, 122 La. 638. 21 L.R.A. 
 (X.S.) 815, 48 So. 130, 16 A. & E. Ann. Cas. 1217, holding a fire insurance patrol 
 entirely maintained by insurance companies for purpose of minimizing fire loss 
 is not a charitable corporation and is liable for negligence of servants; Bruce v. 
 Central M. E. Church, 147 Mich. 241, 10 L.R.A.(X.S-) 78, 110 X. W. 951, 11 A. & 
 E. Ann. Cas. 150, where neither the institution nor its offending servants are 
 acting in a charitable or governmental capacity; Hewett v. Woman's Hospital Aid 
 Asso. 73 N. H. 565, 7 L.R.A.(N.S.) 499, 64 Atl. 190, holding that because a hos- 
 
101 L. E. A. CASES AS AUTHORITIES. [1 L.R.A. 425 
 
 pital is conducted as a charitable institution without expectation of profits is no 
 excuse or exoneration for injury caused its servants by negligence. 
 Nonliability of charitable property to process. 
 
 Cited in Fire Ins. Patrol v. Boyd, 19 Phila. 266, holding property of corporation 
 existing to protect life and property cannot be taken in execution and sold piece- 
 meal. 
 
 1 L. R. A. 422, SHEA'S APPEAL, 121 Pa. 302, 15 Atl. 629. 
 Antenuptial contracts. 
 
 Cited in Barker v. Barker, 126 Ala. 509, 28 So. 587. and Warner's Estate, 33 
 Pittsb. L. J. N. S. 430, holding contract depriving wife of interest in husband's 
 estate without adequate compensation, signed in reliance on husband's represen- 
 tations, void; Hinkle v. Hinkle, 34 W. Va. 151, 11 S. E. 993, holding contract 
 releasing right in husband's estate, made by illiterate woman, without explana- 
 tion and containing no provision for her, not bar to dower. 
 
 Distinguished in Xeely's Appeal, 124 Pa. 424, 10 Am. St. Rep. 594, 16 Atl. 883, 
 holding provision in antenuptial contract disproportionate to husband's estate, 
 not in fraud of wife signing with full knowledge of facts, though unwillingly. 
 
 Disapproved in effect in Spurlock v. Brown, 91 Tenn. 255, 18 S. W. 868, holding 
 marriage alone sufficient consideration for antenuptial contract relinquishing al) 
 claims in husband's estate. 
 Res adjudicate. 
 
 Cited in lie Emig, 186 Pa. 411, 40 Atl. 522, holding evidence may not be given 
 involving matters previously adjudicated, on reference back for specific purpose. 
 Constructive trust from confidential relation. 
 
 Cited in Huffman v. Huffman, 35 Ind. App. 646, 73 N. E. 1096, holding that 
 confidential relationship of husband and wife is sufficient on which to establish 
 a constructive trust in case of wife's separate property which the husband has 
 caused to be transferred to him; Plankinton's Estate, 212 Pa. 237, 61 Atl. 888, 
 holding that where a confidential relationship exists, burden is upon donee to 
 show that no advantage was taken thereof; McCord v. Bright, 44 Ind. App. 288, 
 87 X. E. 654, holding relation of husband to wife confidential requiring him to 
 prove fairness of deed advantageous to him. 
 
 1 L. R. A. 425, WINCHESTER v. EVERETT, 80 Me. 535, 6 Am. St. Rep. 228, 
 
 15 Atl. 596. 
 Protection afforded to officers by process. 
 
 Cited in Brown v. Mosher, 83 Me. 114, 21 Atl. 835, holding jurisdiction in fact, 
 though not appearing in distress warrant, protects officer; Brown v. Howard, 
 86 Me. 345. 29 Atl. 1094, holding writ showing want of jurisdiction no protec- 
 tion; Lisabelle v. Hubert, 23 R. I. 457, 50 Atl. 837, holding arrest upon writ 
 fair on its face not false imprisonment. 
 Judgment or execution against married \vonian. 
 
 Cited in Emery v. Kipp, 154 Cal. 86, 19 L.R.A.(X.S.) 986, 129 Am. St. Rep. 141, 
 97 Pac. 17, 16 A. & E. Ann. Cas. 792, holding valid judgment against a married 
 woman, sued by her maiden name, in action to quiet title to land in which she 
 claimed an interest acquired under her maiden name. 
 
 Cited in footnote to Gill v. State, 26 L. R. A. 655, which holds married woman's 
 property liable to execution against her for fine- 
 
1 L.R.A. 427] L. R. A. CASES AS AUTHORITIES. 102 
 
 1 L. R. A. 427, BRADLEY v. BAILEY, 56 Conn. 374, 7 Am. St. Rep. 316, 15 
 
 Atl. 746. 
 Ki;iht* of administrator of life tenant. 
 
 Cited in Keays v. Blinn, 234 111. 123, 84 N. E. 628, 14 A. & E. Ann. Cas. 37, 
 holding that crops growing on land at the time of death of life tenant, go to his 
 personal representative, though he had and exercised a power of appointment by 
 will to dispose of the fee. 
 
 Cited in footnotes to Noble v. Tyler, 48 L. R. A. 735, which holds adminis- 
 trator of life tenant entitled to whole rent, though crops not severed until after 
 life tenant's decease; Salter v. Sutherland, 50 L. il. A. 140, which holds admin- 
 istrator of life tenant of chattels cannot maintain action for possession against 
 wrongful taker. 
 Kmblements. 
 
 Cited in State v. Helton, 143 Mo. App. 499, 127 S. W. 595, holding that life 
 tenant has right to emblements. 
 
 Cited in notes (6 L. R. A. 618) on emblements; (12 L. R. A. 849) on rights 
 of landlord to emblements as against attaching creditors of tenant; (11 L.R.A. 
 (X.S.) 688) on right of lessee of life tenant to possession and emblements upon 
 death of lessor; (15 Eng. Rul. Cas. 556) on effect of custom as to tenant's rights 
 in waygoing crop. 
 
 1 L. R. A. 429, CUTTER v. HAMLEN, 147 Mass. 471, 18 N. E. 397. 
 :Survival of causes of action. 
 
 Cited in Killen v. Barnes, 106 Wis. 562, 82 N. W. 536, holding action against 
 officers of bank for fraudulent representations to depositor does not survive; 
 Whiteside v. Brawley, 152 Mass. 136, 24 N. E. 1088, stating that it was ques- 
 tionable whether action for fraud in horse trade survived; Jenks v. Hoag, 179 
 Mass. 586, 61 N. E. 221, holding action against attorney for fraudulent con- 
 spiracy with client does not survive; Hess v. Lowrey, 122 Ind. 226, 7 L. R. A. 
 90, 17 Am. St. Rep. 355, 23 N. E. 156, holding action for malpractice does not 
 survive; Letson v. Brown, 11 Colo. App. 13, 52 Pac. 287, and Feary v. Hamil- 
 ton, 140 Ind. 52, 39 N. E. 516, holding action for personal injuries does not 
 .survive; Lehmann v. Farwell, 95 \Yis. 189, 37 L. R. A. 336, 60 Am. St. Rep. Ill, 
 70 N". W. 170, holding cause of action for personal injuries survives; YVilkins 
 v. \Yainwright, 173 Mass. 213, 53 N. E. 397, holding action for injury to plain- 
 tiff's person, horse, and sleigh from assault of defendant's dogs, survives; \Vine- 
 turgh v. United States Steam & Street R. Advertising Co. 173 Mass. 61, 73 Am. 
 St. Rep. 261, 53 N. E. 145, holding liability of officer of corporation for mis- 
 appropriation of corporate property survives; Warren v. Para Rubber Shoe Co. 
 16(5 Mass. 104, 44 N. E. 112, holding cause of action for breach of dvities arising 
 from fiduciary relation survives; Hedekin v. Gillespie, 33 Ind. App. 653, 72 X. E. 
 143, holding that action for personal injury from defect in premises does not sur- 
 vive the death of the lessor; Hey v. Prime, 197 Mass. 476, 17 L.R.A. (N.S.i ~>7(>. 
 '84 N. E. 141, holding that action of tort by a husband for consequential dam- 
 ages by reason of personal injury to his wife does not survive; Keating v. Boston 
 Elev. R. Co. 209 Mass. 282, 95 N. E. 840, holding that action by father for loss 
 of son's services from injuries does not survive; Re Gay. 182 Fed. 263, holding 
 that action for false representations inducing bankrupt to buy property at 
 fictitious value passes to his trustee. 
 
 Cited in footnotes to Perkins v. Stein, 20 L. R. A. 861, which holds action for 
 rnegligence of driver in running over person survives; Aylsworth v. Curtis, 33 
 .L. R. A. 110, which holds action for value of property stolen survives. 
 
103 L. R. A. CASKS AS AUTHORITIES. [1 L.R.A. 429 
 
 Cited in note (2 Eng. Rul. Cas. 18) on abatement of aetion for tort by death of 
 wrongdoer. 
 Liability of lessor for defects. 
 
 Cited in Willcox v. Hines, 100 Tenn. 551, 41 L. R. A. 281, 66 Am. St. Rep. 770, 
 46 S. W. 297, holding landlord liable for defects existing at date of lease of 
 which he knew or ought to have known, unknown to tenant; Martin v. Richards, 
 155 Mass. 382. 29 X. E. 591. holding landlord liable when he knew of existence of 
 privy vault, and his agent knew odors emanated therefrom, and did not disclose 
 same to tenant; Gallagher v. Button, 73 Conn. 177, 46 Afcl. 819, holding liability 
 of lessor for defect in fire escape not established, in absence of proof of its 
 existence at time of letting, or that lessor was chargeable with knowledge thereof, 
 or that tenant could not discover it; Copeland v. Draper, 157 Mass. 560. 19 L. 
 R. A. 284, 34 Am. St. Rep. 314, 32 X. E. 944, holding rule of caveat emptor ap- 
 plies to hirer of horse whose defects are not known to lessor or discoverable by 
 due care; O'Malley v. Twenty-Five Associates, 170 Mass. 479, 49 N. E. 641 (dis- 
 senting opinion), majority holding one injured by breaking of apparatus while 
 hoisting coal for tenant entitled to go to jury on question of landlord's liability; 
 Crandall v. Moston, 24 App. D. C. 548, 50 X. Y. Supp. 145, holding landlord not 
 liable for injury to tenant from fall of flush tank which had become slightly 
 detached from wall without landlord's knowledge; Finney v. Steele, 148 Ala. 201, 
 6 L.R.A.(X.S.) 980, 41 So. 976, 12 A. & E. Ann. Cas. 510, holding lessor not liable 
 for injuries to tenant from infected premises, where they had been disinfected 
 under the direction of a skilled physician; Shute v. Bills, 191 Mass. 436, 7 L.R.A. 
 <X.S.) 966, 114 Am. St. Rep. 631, 78 N. E. 96, holding lessor not liable for injury 
 to lessee from a leak in the gutter where it is not shown that the lessor knew 
 of it or ought to have known, at the time of the letting; Steefel v. Rothschild, 
 179 X. Y. 278, 72 X. E. 112, 1 A. & E. Ann. Cas. 676, holding lessor liable for 
 damage to goods caused by removal from leased building declared unsafe where 
 lessor had knowledge of defects which lessee could not have discovered by rea- 
 sonable diligence. 
 
 Cited in notes (34 L. R. A. 829) on liability of landlord for concealment of de- 
 fects; (19 L.R.A. 726) on liability for communicating contagious disease; (47 
 Am. St. Rep. 552; 93 Am. St. Rep. 843, 846; 6 L.R.A. (X.S.) 978) on duty and 
 liability of landlord as to infected premises; (66 Am. St. Rep. 787) on liability of 
 landlord letting premises in defective condition. 
 
 Distinguished in Bertie v. Flagg, 161 Mass. 506, 37 N. E. 572, holding land- 
 lord not liable for failure to disclose defect in drain discovered during tenancy; 
 Davis v. Smith, 26 R. I. 136, 66 L.R.A. 483, 106 Am. St. Rep. 691, 58 Atl. 630, 
 3 A. & E. Ann. Cas. 832, holding lessor not liable for injury to lessee from in- 
 fectious disease where he had no knowledge of such infection nor for defects in 
 the premises apparent upon inspection. 
 Remedy of tenant for concealment of defect in leased premises. 
 
 Cited in Stevens v. Pierce, 151 Mass. 209, 23 X. E. 1006, holding only remedy 
 of tenant of unsanitary premises is in action for fraud : Shinkle, W. & K. Co. v. 
 Birney, 68 Ohio St. 335, 67 X. E. 715, holding action not maintainable by lessee 
 against lessor on account of condition of premises, not founded on express war- 
 ranty or deceit. 
 
 Cited in note (9 Eng. Rul. Cas. 457) on liability of landlord concealing defects. 
 Evidence of snbseqnent condition. 
 
 Cited in Toland v. Paine Furniture Co. 179 Mass. 505, 61 X. C. 52, holding ad- 
 missible evidence of condition of mat on which plaintiff tripped, four hours after 
 accident, there being no evidence of change meanwhile; Boucher v. Robeson Mills, 
 
1 L.R.A. 429] L. R. A. CASES AS AUTHORITIES. 104 
 
 182 Mass. 503. 65 X. E. S1H. holding defective belt causing accident admissible 
 in evidence though it has been repaired; Creamery Package Mfg. Co. v. Hotsen- 
 piller, 159 Ind. 105, 64 X. E. 600. holding evidence as to condition of machine 
 a week after accident admissible, where condition shown to have been same a 
 at time of accident; Droney v. Doherty, 186 Mass. 207, 71 N. E. 547, holding 
 evidence of condition of elevator the day after an accident admissible. 
 
 1 L. R. A. 432, MYERS v. ADLER, 6 Mackey, 515. 
 Estates for life. 
 
 Cited in note (2 L. R. A. 114) on creation of life estate. 
 Distinction between contingent and Vested remainders. 
 
 Cited in Hauptman v. Carpenter, 16 App. D. C. 529. holding remainder after 
 estate for life or until marriage vested; Lantz v. Massie, 99 Va. 713, 40 S. E. 
 50, holding remainder, to be divided upon death of life tenant as such tenant 
 deems best, vested. 
 
 Cited in footnotes to Green v. Grant, 18 L. R. A. 381, which holds remainder of 
 trust estate to be conveyed by trustee upon death of life tenant to her issue, if 
 any, contingent; Starnes v. Hill, 22 L. R. A. 598, which holds remainder for 
 life, depending upon devisee's survival of first life tenant, contingent; Ikrven v, 
 Hackney, 67 L.R.A. 440, which holds that no estate vests in children until wid- 
 ow's death under will giving life estate to widow and providing that at her 
 death that given to her for life shall be equally divided between all the children., 
 the representatives of those having died to stand in place of ancestors. 
 
 Cited in notes (3 L. R. A. 691; 9 L. R. A. 212) on contingent and vested re- 
 mainders; (9 L. R. A. 573) on devise to widow during widowhood. 
 
 1 L. R. A. 437, COOK COUXTY v. CHICAGO IXDUSTRIAL SCHOOL FOR 
 
 GIRLS, 125 111. 540, 8 Am. St. Rep. 386, 18 N. E. 183. 
 Public aid to sectarian institutions. 
 
 Cited in Stevens v. St. Mary's Training School, 144 111. 342, 18 L. R. A. 834. 
 36 Am. St. Rep. 438, 32 N. E. 962. refusing to enjoin county board from making 
 illegal contract with sectarian school; Synod of Dakota v. State, 2 S. D. 375. 14 
 L. R. A. 422, 30 X. W. 632, holding college giving secular and sectarian in- 
 struction not entitled to public moneys; State ex rcl. Orr v. Xew Orleans, 50 La. 
 Ann. 892, 24 So. 666, holding city appropriations to private charitable institu- 
 tions without fixed consideration therefor, illegal; People ex rel. Ring v. Board 
 of Education, 245 111. 360, 29 LJR.A.(X.S.) 452, 92 X. E. 251, 19 Ann. Gas. 220 
 (dissenting opinion), on reading of Bible of sectarian instruction. 
 
 Cited in notes (14 L.R.A. 419) on public aid to sectarian institutions; (10.5 Am. 
 St. Rep. 152, 155) on religious and sectarian teaching in public schools. 
 
 Distinguished in Roberts v. Bradfield. 12 App. D. C. 472, upholding express 
 contract for care of public patients in sectarian hospital ; Hysong v. School Dis- 
 trict, 164 Pa. 643, 26 L. R. A. 207, 44 Am. St. Rep. 632, 30 Atl. 482, holding 
 sisters of charity may be employed as public school teachers. 
 Constitution as paramount to statutes. 
 
 Cited in Washinolonian Home v. Chicago, 157 111. 427, 29 L. R. A. 802, 41 
 N. E. 893, holding self-executing constitutional provision paramount law from 
 adoption of Constitution; Russell v. Ayer, 120 X. C. 19G. 37 L. R. A. 251, 27 S. 
 E. 133 (dissenting opinion), majority holding Constitution indirectly fixing 
 amount of poll tax not self -executing; Eaton v. Mimnaugh, 43 Or. 474, 73 Pac. 
 754, holding that the Constitution must be obeyed in preference to a statute. 
 Appeals involving construction of Constitution. 
 
 Cited in Stevens v. St. Mary's Training School, 33 111. App. 237, dismissing. 
 
105 L. R. A. CASES AS AUTHORITIES. [1 L.K.A. 448 
 
 appeal as involving construction of Constitution; Highway Comrs. v. Chicago 
 <t N. W. R. Co. 34 111. App. 36. refusing to dismiss appeal as involving constitu- 
 tionality of statute; Stein v. Meyers, 253 111. 204, 97 X. E. 295, holding that ap- 
 peal from city court involving construct' in of Constitution must be taken direct- 
 ly to supreme court. 
 
 1 L. R. A. 447, HANKEY v. DOWNEY, 116 Ind. 118, 18 N. E. 271. 
 
 Report of second appeal in 3 Ind. App. 326, 29 N. E. 606; of third appeal in 
 10 Ind. App. 501, 38 N. E. 220. 
 State statutes regulating: gale of patent rights. 
 
 Cited in Sandage v. Studabaker Bros. Mfg. Co. 142 Ind. 156, 34 L. R. A. 366, 
 51 Am. St. Rep. 165, 41 N. E. 380, and Pape v. Wright, 116 Ind. 503, 19 N. E. 459, 
 holding statute regulating sale of patent rights valid; Eclipse Wind Engine Co. 
 v. Zimmerman Mfg. Co. 16 Ind. App. 503, 44 N. E. 1115, holding license to use, 
 not a sale of patent rights within statute. 
 Police power of state. 
 
 Cited in Reeves v. Corning, 51 Fed. 787, holding requirement as to filing of 
 letters patent by person selling, legitimate exercise of police powers; Bowlby v. 
 Kline. 28 Ind. App. 663, 63 N. E. 733, holding law restricting negotiability of 
 loan association bonds, notes, and mortgages, within police power; Woods v. 
 'Carl, 75 Ark. 334, 87 S. W. 621, 3 A. & E. Ann. Cas. 423, holding act governing 
 form of promissory note given in consideration of sale of patent rights to be a 
 valid exercise of police power. 
 
 Cited in notes (29 L. R. A. 789) on power of state to restrict and regulate 
 sale or enjoyment of patent rights; (20 L. R. A. 608) on validity of notes given 
 for patent rights; (114 Am. St. Rep. 488) on requirement of notes given for 
 patent rights. 
 
 Distinguished in Ozan Lumber Co. v. Union County Nat. Bank, 76 C. C. A. 220, 
 145 Fed. 346, 7 A. & E. Ann. Cas. 390, holding void act prescribing form to be 
 used in promissory notes given for patented articles. 
 Distinction between patent right and patented articles. 
 
 Cited in Eclipse Wind Engine Co. v. Zimmerman Mfg. Co. 16 Ind. App. 503, 
 44 N. E. 1115, holding sale of license not sale of patent rights; People's State 
 Bank v. Jones, 2b- Ind. App. 585, 84 Am. St. Rep. 310, 58 N. E. 852, holding 
 sale of exclusive right to sell patented article not sale of patent right; Tredick 
 v. Walters, 81 Kan. 833, 106 Pac. 1067, holding that sale of exclusive right to 
 sell a mold designed expressly and exclusively for use in the manufacture of a 
 patented article, is a sale of a patent right; Bolte v. Sparks, 85 Kan. 16, 116 Pac. 
 224, holding that notes in consideration of agency for sale of territory to cus- 
 tomers who are to have exclusive right to sell patented invention must contain 
 words "given for patent right." 
 
 Distinguished in First Xat. Bank v. Beach, 34 Ind. App. 86, 72 N. E. 287, on 
 sale of "patent right" or of "right to manufacture patented article" under statute. 
 
 1 L. R. A. 448, DENNIS v. LOUISVILLE, N. A. & C. R. CO. 116 Ind. 42, 18 N. 
 
 E. 179. 
 Contributory negligence. 
 
 Cited in Citizens' Street R. Co. v. Merl, 134 Ind. 611, 33 N. E. 1014, holding no 
 contributory negligence when passenger struck by car while being transferred in 
 plain view of driver; Pittsburgh, C. C. & St. L. R. Co. v. Shaw, 15 Ind. App. 
 177, 43 N. E. 957, and Chicago, St. L. & P. R. Co. v. Fenn, 3 Ind. App. 253, 29 
 JN. E. 790, holding no contributory negligence shown by escape of secured animal. 
 
] L.R.R. 448] L. R. A. CASES AS AUTHORITIES. 10ft 
 
 Presumption as to animal leaving: track. 
 
 Cited in Overton v. Indiana, B. & W. R. Co. 1 Ind. App. 440, 27 N. E. 651, 
 holding engineer could not presume that cow he saw on track would leave as 
 train approached. 
 Liability of railroad for injury to stock. 
 
 Cited in Indiana, B. & W. R. Co. v. Overton, 117 Ind. 254, 20 N. E. 147, hold- 
 ing killing not wilful if engineer did not see cow until close to crossing; Indian- 
 apolis & E. R. Co. v. Goar, 42 Ind. App. 91, 86 N. E. 968, holding that railway 
 company is not liable for injury to animals trespassing on its track in the 
 absence of negligence. 
 
 Cited in notes (8 L. R. A. 135) on liability of railroad for injury to cattle by- 
 failure to fence; (11 L. R. A. 461) on duty of railway employees to keep look- 
 out for stock on track. 
 Finding silent on material point. 
 
 Cited in Lake Shore & M. S. R. Co. v. Van Auken, 1 Ind. App. 498, 27 N. E. 
 119, holding necessary for special verdict to show that cow was on or at cross- 
 ing; Louisville, N. A. & C. R. Co. v. Green, 120 Ind. 375, 22 N. E. 327, holding; 
 special verdict silent as to ringing of bell fatal to recovery for loss of cow; Chi- 
 cago, L & L. R. Co. v. Ramsey, 168 Ind. 397, 120 Am. St. Rep. 379, 81 N. E. 79 r 
 holding that where finding is silent as to a material fact, it will be taken on that 
 point as a finding against the party having the burden of proof. 
 When negligence of railroad is question of fact. 
 
 Cited in note (11 Am. St. Rep. 785) on when negligence of railway companies 
 is question of fact. 
 
 1 L. R. A. 451, COM. v. FITZPATRICK, 121 Pa. 109, 6 Am. St. Rep. 757, 15 
 
 Atl. 466. 
 Former jeopardy by mistrial or discharge of jury. 
 
 Cited in McDonald v. State, 79 Wis. 6%3, 24 Am.. St. Rep. 740, 48 N. W. 863, 
 holding resentencing prisoner on same verdict not putting twice in jeopardy; 
 Com. v. Fritch, 9 Pa. Co. Ct. 169, holding accused consenting to discharge of 
 juror and substitution of another cannot object thereto; Allen v. State. 52 Fla. 
 4, 41 So. 593, 10 A. & E. Ann. Cas. 1085, holding that discharge of the jury with- 
 out ground and continuing case over the term operates as an acquittal and bars 
 subsequent prosecution; Gillespie v. State, 168 Ind. 310, 80 X. E. 829, holding 
 that where, after a jury was impanelled and sworn, a juror was illegally excused 
 and another substituted, it constituted jeopardy and the defendant was acquitted; 
 People ex rel. Stavile v. Warden, 202 N. Y. 151, 95 X. E. 729, holding that de- 
 fendant has been placed in jeopardy, where judge discharges murder jury after 
 five hours deliberation, without their request, on consent of defendant; State v. 
 Turpin, 54 Or. 369, 103 Pac. 438, holding subsequent prosecution barred by dis- 
 charge of jury on account of failure of judge to attend and hold court; Com. v. 
 Gabor, 209 Pa. 205, 58 Atl. 278, holding new trial properly ordered where verdict 
 was received in absence of the prisoner and jury discharged in trial for murder, 
 where the first verdict was for manslaughter; Com. v. Endrukat, 231 Pa. 534, 35 
 L.R.A.(N.S-) 473, 80 Atl. 1049, holding that defendant may be tried again, where 
 judge, on own motion, sets aside verdict of murder in first degree and insanity. 
 
 Cited in footnotes to Re Ascher, 57 L. R. A. 806, which holds accused not put 
 in jeopardy when jury discharged for improper conduct; Dreyer v. People, 58 
 L. R. A. 869, which holds discharge of jurors for failing to agree not put accused 
 in jeopardy; State v. Nelson, 33 L. R. A. 559, which holds discharge of jury after 
 criminal trial had progressed some days bar to second trial. 
 
107 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 456 
 
 Cited in notes (4 L.R.A. 543) on former acquittal as a defense; (11 L.R.A. (N.S.) 
 181) on time allowable for jury to deliberate before mistrial ordered in criminal 
 case. 
 
 Distinguished in Com. v. Reese, 22 Pa. Co. Ct. 413, 8 Pa. Dist. R. 416, holding 
 prohibition against twice putting in jeopardy inapplicable to crime of inferior 
 grade, such as adultery. 
 
 Disapproved in State v. Barnes, 54 Wash. 496, 23 L.R.A.(N.S.) 935, .103 Pa. 
 792, holding discharge of jury upon failure to agree after forty-three hours delib- 
 eration no bar to subsequent trial. 
 Judicial notice. 
 
 Cited in Pitts v. Lewis, 81 Iowa, 56, 46 N. W. 739, holding that court will 
 take judicial notice of organization of county. 
 
 Cited in footnote to Com. v. King, 5 L. R. A. 536, which holds that judicial 
 notice would be taken that river above dam not highway for commerce. 
 
 Cited in notes (4 L.R.A. 38) on judicial notice of civil division of the state;. 
 (82 Am. St. Rep. 445) on judicial notice of localities and boundaries. 
 
 1 L. K. A. 453, MIFFLIN'S APPEAL, 121 Pa. 205, 15 Atl. 525. 
 Creation of perpetuity. 
 
 Cited in Lawrence's Estate, 136 Pa. 364, 11 L. R. A. 89, 20 Am. St. Rep. 925 r 
 20 Atl. 521, holding power to appoint by will persons to take fee not against 
 perpetuities; Pulitzer v. Livingston, 89 Me. 366, 36 Atl. 635, holding right re- 
 served by equitable owner in trust deeds to destroy trusts removes them from- 
 rule against perpetuities; Lawrence's Estate, 136 Pa. 367, 11 L. R. A. 90, 20= 
 Am. St. Rep. 925, 20 Atl. 521, holding remainder vesting on termination of life 
 in being not too remote; Shepperd v. Fisher, 206 Mo. 239, 103 S. W. 989; Buxton 
 v. Kroeger, 219 Mo. 272, 117 S. W. 1147 (dissenting opinion), on application of 
 the rule against perpetuities. 
 
 Cited in footnotes to Murphy v. Whitney, 24 L. R. A. 123, which holds perpe- 
 tuity not created by contract by joint tenants that land should pass to survivor, 
 and from last survivor to child of only married one; Cross v. United States Trust 
 Co. 15 L. R. A. 606, which holds law against perpetuities in state where property 
 situated will not defeat bequest in trust valid in testator's domicil. 
 
 Cited in notes (1 L. R. A. 419) on perpetuities; (3 L. R. A. 146; 4 L. R. A. 
 141) on statute against perpetuities; (11 L. R. A. 85) on rule against perpetui- 
 ties applied to wills; (6 L. R. A. 84) on trusts for private objects not within 
 charitable trusts as regards perpetuities; (49 Am. St. Rep. 121, 133) on rule- 
 against perpetuities. 
 Power of appointment. 
 
 Cited in Evans's Estate, 27 Pa. Co. Ct. 629, holding that no remainder exists 
 after the exercise by life tenant of absolute power of disposal. 
 
 Cited in note (21 Eng. Rul. Cas. 414) on effect of instrument executing power. 
 
 1 L. R. A. 456, LESLIE v. LOR1LLARD. 110 X. Y. 519, 18 N. E. 363. 
 Contracts in restraint of trade. 
 
 Cited in Booth v. Seibold, 37 Misc. 102, 74 N. Y. Supp. 776, holding sale of 
 fish business with agreement not to engage in it within limited area and for 
 limited time valid: Ceballos v. Munson, S. S. Line, 93 App. Div. 595, 87 N. Y, 
 Supp. 811, holding legal, contract between shippers of cattle to pay commissions 
 to one another on cattle carried by them; Swigert v. Tilden, 121 Iowa, 657, 63 
 L. R. A. 611. 97 X. W. 82, upholding contract not to engage in manufacturing 
 or selling shirts in certain places for period of ten years; Underwood v. Smith, 
 
1 L.R.A. 456] L. R. A. CASES AS AUTHORITIES. 108 
 
 46 N. Y. S. R. 656, 19 X. Y. Supp. 381, holding agreement by sellers not to 
 engage in similar business for limited time valid; Wood v. Whitehead Bros. Co. 
 165 N. Y. 551, 59 N. E. 357, holding sale of goodwill of molding sand business, 
 with covenant not to compete, valid; Ru Ton v. Everitt, 35 App. Div. 414, 54 
 N. Y. Supp. 896, holding sale of goodwill of city market business for limited 
 period valid; Brett v. Ebel, 29 App. Div. 259, 51 X. Y. Supp. 573, holding sale 
 of freighting business with specified contract, with covenant not to engage in it 
 for limited period, valid; Stanley v. Pollard, 5 Misc. 492, 25 N. Y. Supp. 766, 
 holding agreement not to sell soap within limited areas and time valid; Water- 
 town Thermometer Co. v. Pool, 51 Hun, 162, 4 N. Y. Supp. 861. holding assign- 
 ment of trade-mark, with agreement not to manufacture anywhere in United 
 States within ten years, valid; Tode v. Gross, 127 N. Y. 485, 13 L. 
 R. A. 654, 24 Am. St. Rep. 475, 28 N. E. 469. holding sale of secret 
 process, with agreement not to use for five years nor to divulge 
 to anyone else, valid; Ellerman v. Chicago Junction R. & Union 
 Stockyards Co. 49 N. J. Eq. 257, 23 Atl. 287. holding sale of stockyards. 
 with agreement not to engage in business within limited area and for limited 
 time, valid; Lanzit v. J. W. Sefton Mfg. Co. 184 111. 330, 75 Am. St. Rep. 171. 
 56 N. E. 393, holding agreement not to engage in business for ten years, any- 
 where in United States, unreasonable; State v. Central R. Co. 109 Ga. 724, 48 
 L. R. A. 354, 35 S. E. 37, holding sale of one railroad to another did not lessen 
 competition where none existed between them ; Mapes v, Metcalf, 10 N. D. 608, 
 88 N. W. 713, holding agreement to discontinue newspaper and advertising busi- 
 ness for five years in certain county valid; Goddard v. American Queen, 27 Misc. 
 480, 59 N. Y. Supp. 46, holding agreement by newspaper not to publish any simi- 
 lar advertisement valid; Matthews v. Associated Press, 136 X. Y. 340, 32 Am. 
 St. Rep. 741, 32 X. E. 981. Affirming 61 Hun, 204, 15 N. Y. Supp. 887, holding 
 by-law of press association prohibiting members from publishing despatches of 
 other news associations valid; Cohen v. Berlin & J. Envelope Co. 38 App. Div. 
 501, 56 X. Y. Supp. 588, holding agreement for sale and regulation of prices 
 of envelopes valid; Excelsior Quilting Co. v. Creter, 36 Misc. 702. 74 X. Y. Supp. 
 361, holding agreement by sole manufacturer, on selling machines, not to make 
 any more, valid; Michigan C. R. Co. v. Pere Marquette R. Co. 128 Mich. 347. 
 87 N. W. 271, holding sale by railroad to another of right to use in common 
 part of its line, with freight regulation, reasonable; United States v. Trans-Mis- 
 souri Freight Asso. 166 U. S. 349, 41 L. ed. 1030, 17 Sup. Ct. Rep. 540 (dissenting 
 opinion), majority holding freight traffic agreement regulating rates within 
 'anti-trust" law; People v. North River Sugar Ref. Co. 121 X. Y. 609, 9 L. R. A 
 39, 18 Am. St. Rep. 843, 24 X. E. 834, Affirming 54 Hun. 383, 5 L. R. A. 391, 
 7 N. Y'. Supp. 406, Which Affirms 54 Hun, 375 note, 2 L. R. A. 41. 22 Abb. X. C. 
 205, 3 N. Y. Supp. 401, holding agreement among sugar refining corporations 
 to sell stock to board, in trust to control business, illegal; Oakes v. Cattaraugus 
 Water Co. 143 X. Y. 439, 26 L. R. A. 551, 38 X. E. 461, holding agreement not 
 to bid for public franchise valid; Barber Asphalt Paving Co. v. Brand, 27 X. Y. 
 S. R. 885, 7 N. Y. Supp. 744, holding complaint to enforce contract not to sell 
 asphalt good; Havemeyer v. Superior Court, 84 Cal. 380, 10 L. R. A. 641, 18 Am. 
 St. Rep. 192, 24 Pac. 121, holding penalty for contract in restraint of trade can- 
 not exceed that prescribed by statute; Re Grice, 79 Fed. 644, holding act making 
 criminal all restrictions of trade invalid; Knight & J. Co. v. Miller. 172 Ind. 38, 
 87 X. E. 823, holding agreement by dealers in plumber's supplies, not to sell to 
 certain parties to be in restraint of trade; Southworth v. Davison. 106 Minn. 121, 
 19 L.R.A.(X.S.) 771, 118 X. W. 303, 10 A. & E. Ann. Cas. 253, holding agreement 
 by one selling a business, not to engage in similar business within certain terri- 
 
109 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 456 
 
 tory valid though unlimited as to time: United Shoe Machinery Co. v. Kimball, 
 193 Mass. 358, 79 X. E. 790, holding valid a similar agreement for a specified 
 time but unlimited as to territory; Angelica Jacket Co. v. Angelica, 121 Mo. App. 
 237, 98 S. W. 805, holding valid a contract, by one who sold his business, not to 
 engage in the same character of business within certain territory for a certain 
 period; Whitaker v. Kilby, 55 Misc. 343, 106 N. Y. Supp. 511; Wayne-Monroe 
 Teleph. Co. v. Ontario Teleph. Co. 60 Misc. 442, 112 N. Y. Supp. 424, holding 
 contract between telephone companies valid, though it involved incidentally par- 
 tial restraint in competition, where the main object of the agreement was lawful 
 and beneficial; Brooklyn Distilling Co. v. Standard Distilling & Distributing Co. 
 120 App. Div. 239, 105 N. Y. Supp. 264, holding that statute against combina- 
 tions does not prevent one from leasing property to prevent competition ; Central 
 New York Teleph. & Teleg. Co. v. Averill, 199 N. Y. 134, 32 L.R.A. (N.S.) 497, 
 139 Am. St. Rep. 878, 92 N. E. 206, Modifying 129 App. Div. 756, 114 N. Y. Supp. 
 99, Reversing 55 Misc. 349, 105 N. Y. Supp. 378, holding void, contract for exclu- 
 sive use of certain telephone system in hotel; New York Bank Note Co. v. Ham- 
 ilton Bank Note Engraving & Printing Co. 180 N. Y. 294, 73 N. E. 48, holding 
 contract to sell printing presses of a certain kind to one company only, valid. 
 
 Cited in footnotes to state ex rel. Snyder v. Portland Natural Gas & Oil Co. 
 53 'L. R. A. 413, which holds agreement with rival company to fix price of gas 
 and refuse to supply gas to customers of rival illegal; State ex rel. Watson v. 
 Standard Oil Co. 15 L. R. A. 145, which holds transfer by stockholders to trus- 
 tees to control business of corporation, illegal ; Gloucester Isinglass & Glue Co. 
 v. Russia Cement Co. 12 L. R. A. 563, which holds agreement to prevent compe- 
 tition between corporations in manufacture of glue valid ; Newell v. Meyendorff. 
 8 L. R. A. 440, which holds contract giving exclusive agency for sale of cigars 
 in certain territory valid; More v. Bennett, 15 L. R. A. 361, which holds stenog- 
 raphers' association to control prices illegal; Anderson v. Jett, 6 L. R. A. 390, 
 which holds agreement between rival steamboats to divide profits, and, after sell- 
 ing boat, not to engage in business within a year, illegal; Bancroft v. Union Em- 
 bossing Co. 64 L. R. A. 298, which upholds validity of contract of one selling 
 right to manufacture machine, not to engage in business of making such ma- 
 chines during life of contract; State v. Phipps, 18 L. R. A. 658, which holds 
 combination of foreign insurance companies to increase rates, within anti-trust 
 act; Kramer v. Old, 34 L. R. A. 389, which holds restriction as to engaging in 
 milling business within limited area, though for life, valid; Texas Standard Cot- 
 ton Oil Co. v. Adoue, 15 L. R. A. 598, which holds combination between cotton 
 oil mills, fixing price of material used, unreasonable; Bancroft v. Union Emboss- 
 ing Co. 64 L.R.A. 298, which upholds contract by seller of right to manufacture 
 and sell patented machine not to engage in making same nor grant right to do 
 so to others; Eugene Dietzgen Co. v. Kokosky, 66 L.R.A. 503, which sustains 
 right to injunction against member of former partnership agreeing on sale of 
 business not to engage directly or indirectly in competitive business within spe- 
 cified city for designated period from continuing in rival business into which he 
 entered in violation of such agreement. 
 
 Cited in notes (11 L. R. A. 504) on contracts in general restraint of trade; 
 (8 L. R. A. 470) on contracts in partial restraint of trade; (11 L. R. A. 437) 
 on contracts to regulate competition in trade not illegal; (4 L. R. A. 155) on 
 contracts in partial restraint of trade valid; (9 L. R. A. 38) on monopolies; 
 (12 L. R. A. 754) on monopolies as public nuisances may be restrained; (6 L. 
 R. A. 457) on contracts creating monopolies void as against public policy; (13 
 L. R. A. 384) on municipality cannot create monopoly; (13 L. R. A. 771) on 
 price fixed by illegal combination void; (33 L. ed. U. S. 70, 71, 73) on validity 
 
1 L.R.A. 456] L. R. A. CASES AS AUTHORITIES. 310 
 
 of contracts in restraint of trade; (74 Am. St. Rep. 241) on combinations con- 
 stituting unlawful trusts. 
 
 Distinguished in Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 54, 
 35 L. ed. 66, 11 Sup. Ct. Rep. 478, holding contract by which corporation agreed 
 not to perform its duties void; Cummings v. Union Blue Stone Co. 164 X. Y. 
 404, 52 L. R. A. 263, 79 Am. St. Rep. 655, 58 N. E. 525, holding combination 
 among producers of blue stone to regulate prices void; Cleveland, C. C. & I. R. 
 Co. v. Closser, 126 Ind. 360, 9 L. R. A. 764, 3 Inters. Com. Rep. 394, 22 Am. 
 St. Rep. 593, 26 N. E. 159, holding traffic agreement between carriers to destroy 
 competition illegal. 
 
 Disapproved in United States v. Addyston Pipe & Steel Co. 46 L. R. A. 132, 
 29 C. C. A. 153, 54 U. S. App. 723, 85 Fed. 284, holding agreement dividing 
 business territory and fixing prices of pipe, in restraint of trade. 
 -Powers of corporate officers. 
 
 Cited in Mutual Reserve Fund Life Asso. v. Cleveland Woolen Mills, 27 C. C. 
 A. 220, 54 U. S. App. 290, 82 Fed. 516, holding assistant secretary of associa- 
 tion might waive forfeiture; Hastings v. Brooklyn L. Ins. Co. 138 N. Y. 479, 34 
 N. E. 289, holding general officer of insurance company may waive immediate 
 payment of premiums; Hennessy v. Muhleman, 40 App. Div. 177, 57 X. Y. Supp. 
 854, holding directors of mining company could lease part of its land to develop 
 mines; Oakes v. Cattaraugus Water P. Co. 143 N. Y. 436, 26 L. R. A. 551, 38 N. 
 E. 461, holding president of water company could ratify own agreement to pay 
 for services connected with business of company ; Beveridge v. New York Elev. 
 R. Co. 112 N. Y. 22, 2 L. R. A. 652, 19 X. E. 489, holding directors authorized 
 to lease railroad to another road for term of years. 
 Ultra vires. 
 
 Cited in Jemison v. Citizens' Sav. Bank, 122 N. Y. 141, 9 L. R. A. 710, 19 Am. 
 St. Rep. 482, 25 N. E. 264, holding savings bank cannot speculate in cotton fu- 
 tures; Ellerman v. Chicago Junction R. & Union Stockyards Co. 49 N. J. Eq. 
 257, 23 Atl. 287, holding stockyard company could, on selling yards, agree not 
 to engage in business within limited area; State ex rel. Atty. Gen. v. Interstate 
 Sav. Invest. Co. 64 Ohio St. 318, 52 L. R. A. 543, 83 Am. St. Rep. 754, 60 X T . E. 
 220, holding investment companies were intended by legislature to exercise fran- 
 chise within limits of charter; Nims Y. Mt. Hermon Boys' School, 160 Mass. 
 179, 22 L. R. A. 366, 39 Am. St. Rep. 467, 35 N. E. 776, holding educational cor- 
 poration operating ferry liable in tort to passenger, though operation ultra vires; 
 Maryland Trust Co. v. National Mechanic's Bank, 102 Md. 614, 63 Atl. 70, on 
 meaning of "ultra vires" as applied to corporate acts. 
 
 Cited in notes (7 L.R.A. 605) on restriction on exercise of powers of corpora- 
 tion; (70 Am. St. Rep. 158) on ultra vires contracts of private corporation. 
 
 Distinguished in Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 
 -754, 35 L. ed. 66, 11 Sup. Ct. Rep. 478, holding agreement by corporation not to 
 perform its duties to public, void. 
 Remedies of stockholders for corporate action. 
 
 .Cited in Steinway v. Steinway & Sons, 17 Misc. 53, 46 N. Y. Supp. 718, re- 
 iusing to enjoin piano corporation from contributing to school and other pur- 
 poses for employees, and from purchasing good will of musical artists; Lewisohn 
 v. Anaconda Copper Min. Co. 26 Misc. 625, 56 X. Y. Supp. 807. refusing to en- 
 join majority stockholders from selling corporate property; Burden v. Burden, 
 159 N. Y". 307, 54 N. E. 17, holding stockholder cannot enjoin execution of con- 
 tract between corporations with mutual directors; Roberts v. New York &. X. E. 
 H. Co. 64 N. Y. S. R. 168, 31 N. Y. Supp. 579. refusing to require redemption 
 <of mortgage on corporate property at suit of minority stockholders; Symmes v. 
 
Ill L. R. A. CASKS AS AUTHORITIES. [1 L.H.A. 462 
 
 Union Trust Co. 60 Fed. 855, holding trustee's failure to assess stockholder to 
 pay mortgage does not authorize setting aside foreclosure decree; Flynn v. 
 Brooklyn City R. Co. 158 X. Y. 508, 53 X. E. 520, holding stockholder can bring 
 action to review fraudulent management when corporation refuses to act; Sage v. 
 Culver, 147 X. Y. 246, 41 X. E. 513, holding stockholder can bring action to 
 compel accounting by trustees controlling corporation; Flynn v. Third Xat. Bank, 
 122 Mich. 645, 81 X. W. 572, holding shareholder may file bill against directors 
 for maladministration where receiver a director; Starin v. Edson, 112 N. Y. 215, 
 10 X. E. 670, holding mere taxpayer cannot question right of railroad corpora- 
 tion to lease ferries; People ex rel. Union P. R. Co. v. Colorado Eastern R. Co. 8 
 Colo. App. 307, 46 Pac. 219, holding proceedings could not be brought by private 
 corporation to question corporate existence of another; Xiles v. Xew York C. & 
 H. R. R, Co. 176 N. Y. 126, 68 X. E. 142, holding that action for damages for 
 conspiracy to wreck corporation must be brought on behalf of corporation; 
 Elmes v. Duke, 39 Misc. 247, 79 X. Y. Supp. 425, upholding right of minority 
 stockholder to sue in own name for accounting by directors charged with fraud; 
 Venner v. Chicago City R. Co. 236 111. 362, 86 X. E. 266, holding that minority 
 stockholder cannot maintain action to set aside intra vires transaction author- 
 ized by the majority; People v. Equitable Life Assur. Soc. 124 App. Div. 732, 109 
 X. Y. Supp. 453, holding directors not liable for errors of judgment where acting 
 in good faith and not ultra vires; Roth v. Robertson, 64 Misc. 346, 118 X. Y. 
 Supp. 351, holding that stockholder may bring suit on behalf of the corporation 
 without demand of the officers where such demand would be futile; Hearst v. 
 McClellan, 102 App. Div. 339, 92 X. Y. Supp. 484, holding that taxpayer cannot 
 maintain suit to restrain payment by the city of excessive gas bills, in the ab- 
 sence of bad faith or fraud; Morse v. Equitable L. Assur. Soc. 124 App. Div. 240, 
 108 X. Y. Supp. 986, holding that directors of insurance company will not be 
 restrained at the instance of a minority stockholder from voting upon a merger, 
 where such act is not ultra vires; Theis v. Spokane Falls Gaslight Co. 49 Wash. 
 496, 95 Pa. 1074, holding that act. intra vires, of majority stockholders cannot 
 be questioned in court by minority stockholder; Figge v. Bergenthal, 130 Wis. 
 617, 109 X. W. 581, holding that court will not regulate the business of a corpo- 
 ration at the instance of minority stockholders in the absence of fraud; Kent v. 
 Honsinger, 167 Fed. 630, holding that stockholders may maintain action for 
 himself and all others similarly situated, without demand upon the officers to 
 bring the action, where the officers are the wrongdoers; Denney v. Susquehanna 
 Iron & Steel Co. 21 Lane. L. Rev. 12, refusing to appoint receiver, though com- 
 pany could not meet its accounts payable and business was being run at a loss. 
 
 Cited in footnote to Pittsburgh Carbon Co. v. McMillin, 7 L. R. A. 46, which 
 holds party to illegal trust combination cannot claim, as against receiver, pro- 
 ceeds of goods sold to trust. 
 
 Cited in notes (12 L.R.A. 168) on corporations estopped to deny liability on 
 contracts; (97 Am. St. Rep. 43) on actions by stockholders in behalf of corpo- 
 rations. 
 
 Distinguished in Shaw v. Staight, 107 Minn. 161, 20 L.R,A.(X.S.) 1084, 119 
 X. W. 951, holding that stockholder may bring action to have fraudulent stock 
 cancelled, where the officers refuse to bring the suit; Siegman v. Electric Vehicle 
 Co. 72 X. J. Eq. 410, 65 Atl. 910, holding that minority stockholders may main* 
 tain suit to enjoin or set aside ultra vires acts of the officers. 
 
 1 L. R. A. 462, BALLOU v. BALLOU, 110 X. Y. 394, 18 X. \. 8. R. 620, 18 N. 
 E. 118. 
 
1 L.R.A. 463] L. R. A. CASES AS AUTHORITIES. 112 
 
 1 L. R. A. 463, MULLINS v. CHICKERING, 110 N. Y. 513, 18 N. E. 377. 
 Liability of bailee denying bailor's right. 
 
 Cited in Lake Shore & M. S. R. Co. v. National Live Stock Bank, 178 111. 522, 
 63 N. E. 326, holding railroad not liable on bill of lading where goods delivered 
 to true owner; Valentine v. Long Island R. Co. 187 N. Y. 127, 79 X. E. 849, Re- 
 versing 102 App. Div. 419, 92 N. Y. Supp. 645, holding that carrier, receiving 
 goods in good faith for transportation, without knowledge that it was its prop- 
 erty, may set up ownership in the goods as defense to action for conversion. 
 
 Cited in note (33 L.R.A. (N.S.) 686) on right to assert against bailor, hostile, 
 adverse, paramount title of third person. 
 
 Distinguished in Leoncini v. Post, 37 N. Y. S. R. 256, 13 N. Y. Supp. 825, hold- 
 ing bailor cannot defeat right of bailee to return of property by claim of owner- 
 ship of third person. 
 Evidence of transactions with deceased person. 
 
 Cited in Hildick v. Williams, 21 N. Y. S. R. 168, 3 N. Y. Supp. 817, holding 
 evidence of personal transactions admissible in action to recover bonds held by 
 decedent's executors, where they justify under title of third person. 
 
 1 L. R. A. 466, WATUPPA RESERVOIR CO. v. FALL RIVER, 147 Mass. 548, 
 
 18 IS'. E. 465. 
 Rights in great ponds and other public waters. 
 
 Cited in Concord Mfg. Co. v. Robertson, 66 N. H. 25, 18 L. R. A. 692, footnote, 
 p. 679, 25 Atl. 718, holding state owns great ponds in trust for public; Atty. Gen. 
 v. Revere Copper Co. 152 Mass. 448, 9 L. R. A. 512, 25 N. E. 605, holding deed of 
 great pond invalid as against beneficial right of public; Proprietors of Mills v. 
 Com. 164 Mass. 233, 41 N. E. 280, holding paramount, public rights impliedly 
 reserved in grant of rights in waters of great pond; St. Anthony Falls Water 
 Power Co. v. St. Paul Water Comrs. 168 U. S. 372, 42 L. ed. 505, 18 Sup. Ct. 
 Rep. 157, holding grant of right to utilize power of public river subject to para- 
 mount right of state to divert water for public purposes; Union Water Power 
 Co. v. Lewiston, 95 Me. 177, 49 Atl. 878 (obiter), stating power company not 
 entitled to damages for taking of water by city from public pond; Auburn v. 
 Union Water Power Co. 90 Me. 584, 38 L. R. A. 188, footnote, p. 188, 38 Atl. 561, 
 holding taking of waters of great pond for public uses damnum dbsque injuria 
 to riparian proprietors; Proprietors of Mills v. Braintree Water Supply Co. 149 
 Mass. 485, 4 L. R. A. 275, 21 N. E. 761, holding grantee of right to use waters 
 cf pond entitled to protection therein as against one using water without au- 
 thority; Slater v. Gunn, 170 Mass. 514, 41 L. R. A. 273, 49 N. E. 1017, holding 
 ordinance granting right to cross unimproved land "to fish and fowl" in great 
 pond does not confer right to cross to cut ice; Watuppa Reservoir Co. v. Fall 
 River, 154 Mass. 305, 13 L. R. A. 257, footnote, p. 255, 28 N. E. 257, holding 
 grant to private person not affected by subsequent ordinance declaring public 
 rights in great pond; Gardner Water Co. v. Gardner, 385 Mass. 194, 69 X. E. 
 1051, holding that legislature may grant to private company the right to appro- 
 priate the waters of a great pond to a public use, and to charge a price for 
 furnishing such water; Sprague v. Minon, 195 Mass. 583, 81 N. E. 284, holding 
 that legislature has power to grant to municipality complete control over a 
 great pond to be used for waterworks system; Atty. Gen. v. Herrick, 190 Mass. 
 309, 76 N. E. 1045, holding that a small rocky island in a great pond belongs 
 to the commonwealth, where it has never been appropriated to any private use. 
 
 Cited in notes (9 L. R. A. 196) on franchise granted to water companies not 
 exclusive (12 L. R. A. 633) on public rights in great ponds; (50 L. R. A. 739. 
 746) on state and Federal ownership of waters; (58 L. R. A. 240) on right to 
 
113 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 474 
 
 acquire water supply by right of eminent domain; (25 Eng. Rul. Cas. 410) on 
 rights of riparian proprietor to use or divert water of stream. 
 
 Distinguished in Concord Mfg. Co. v. Robertson, 66 N. H. 29, 18 L. R. A. 694, 
 footnote, p. 679, 25 Atl. 718, holding right of public owner to divert waters of 
 great pond not impliedly reserved in riparian grants. 
 Compensation on exercise of public use. 
 
 Cited in American Woolen Co. v. Kennebec Water Dist. 102 Me. 155, 66 Atl. 316, 
 holding that the state may authorize the diversion of the waters of great ponds 
 for public use without providing compensation to riparian proprietors; Home for 
 Aged Women v. Com. 202 Mass. 434, 24 L.R.A. (N.S.) 85, 89 N. E. 124, holding 
 owner of land adjoining tidewater not entitled to compensation where legislature 
 authorized the filling in of land lying under low water, by which his access to 
 navigable water was cut off. 
 
 Cited in note (17 L.R.A.(N.S.) 1008) on power to condemn riparian rights 
 apart from land to which appurtenant. 
 
 Distinguished in Dodge v. Rockport, 199 Mass. 276, 85 X. E. 172, holding ri- 
 parian owner on stream flowing from a great pond entitled to compensation for 
 injury sustained by the diversion of the waters, where the legislature makes 
 compensation as a condition for such diversion. 
 Damages for trespass. 
 
 Cited in note (53 L. R. A. 635) on extent of trespassers liability for conse- 
 quential injuries. 
 Time for allowing; amendments. 
 
 Cited in Merrill v. Beckwith, 168 Mass. 75, 46 N. E. 400, allowing amendment 
 of bill after entry on docket, "Bill dismissed with costs." 
 
 1 L. R. A. 474, FOTHERINGHAM v. ADAMS EXP. CO. 36 Fed. 252. 
 False imprisonment. 
 
 ('it nl in Whitman v. Atchison, T. & S. F. R. Co. 85 Kan. 157, 34 L.R.A.(N.S.) 
 1033, 116 Pac. 234, holding that detention by conductor of injured passenger to 
 obtain statement of accident is unlawful restraint of liberty. 
 
 Cited in notes (14 L.R.A. 793) on liability of master for false arrest, imprison- 
 ment, or malicious prosecution by servant; (20 L.R.A. (N.S.) 969) as to whether 
 false imprisonment may be predicated of partial or conditional restraint; (67 Am. 
 St. Rep. 419; 118 Am. St. Rep. 722) on what amounts to false imprisonment. 
 Punitive or exemplary damages. 
 
 Cited in Roza v. Smith, 65 Fed. 596, awarding punitive damages for detaining 
 in irons stranger accused of instigating desertion of seaman; National Surety 
 Co. v. Mabry, 139 Ala. 225, 35 So. 698. holding verdict for $7,500 damages for 
 malicious prosecution for embezzlement not excessive; Shoemaker v. Sonju, 15 
 N. D. 524, 108 X. W. 42, 11 A. & E. Ann. Cas. 1173, holding that malice justify- 
 ing exemplary damages may be implied from a wanton and reckless assault; 
 Advertiser Co. v. Jones, 169 Ala. 210, 53 So. 759, on punitive damages for libel. 
 
 Cited in notes (1 L. R. A. 682) on punitive or exemplary damages for personal 
 injuries; (13 L. R. A. 600) on exemplary or punitive damages when allowed. 
 
 Distinguished in Lampert v. Judge & D. Drug. Co. 119 Mo. App. 700, holding 
 exemplary damages not recoverable where cigar dealer put inferior brand in box 
 marked with plaintiffs trademark, and sold them as his make. 
 Remission of damages. 
 
 Cited in St. Louis, I. M. & S. R. Co. v. Robbins, 57 Ark. 386, 21 S. W. 886, 
 holding award of excessive damages demands exercise of supervisory control. 
 L.R.A. Au. Vol. I. 8. 
 
1 L.R.A. 474] L. R. A. (ASKS AS :-UTIIORITIES. 
 
 Corporate liability for tort. 
 
 Cited in Southern Exp. Co. v. Flatten, 36 C. C. A. 49, 93 Fed. 939, holding 
 corporation liable for assault by its detectives. 
 
 1 L. R. A. 476, MISSOURI P. R. CO. v. EVANS, 71 Tex. 361, 9 S. W. 325. 
 Duty towards intoxicated or incapacitated pnssenjser. 
 
 Cited in Price v. St. Louis, I. M. & S. R. Co. 75 Ark. 492, 112 Am. St. Rep. 79, 
 88 S. W. 575, affirming verdict against railway for injury and death of intoxi- 
 cated passenger in such condition when received and who while unwatched went 
 to door and was thrown off. 
 
 Cited in footnotes to Wheeler v. Grand Trunk R. Co. 54 L. R, A. 955, which 
 holds carrier liable to intoxicated passenger for injury preventable by due care; 
 Chesapeake & O. R. Co. v. Saulsberry, 56 L. R. A. 580, which holds carrier not 
 liable for injury to lawfully ejected intoxicated passenger, attempting to pursue 
 and re-enter train; Southern P. R. Co. v. Tarin, 54 L. R. A. 240, which holds 
 railroad company liable for failure to warn foreign passenger of danger that car 
 may be undermined; Southern R. Co. v. Hobbs, 63 L.R.A. 68, which holds promise 
 "by conductor to assist partially blind passenger in alighting not an undertaking 
 to escort her from her seat to the platform; Korn v. Chesapeake & 0. R. Co. 63 
 L.R.A. 873, which denies liability of carrier for death of intoxicated passenger 
 expelled from train within village when temperature was near the freezing point; 
 Fox v. Michigan C. R. Co. 68 L.R.A. 336, which holds carrier liable where em- 
 ployees in charge of train knowingly permit person beastly drunk to go out 
 alone on platform of moving car. 
 
 Cited in note (19 L. R. A. 327) on exposure of drunken passenger to danger by 
 ejection from cr. 
 Intoxication as affecting: contributory neg'lig'ence. 
 
 Cited in Williams v. Rand, 9 Tex. Civ. App. 635, 30 S. W. 509, raising, with- 
 out deciding, question of invalidity of instrument because of signer's intoxication. 
 
 Cited in footnote to Bageard v. Consolidated Traction Co. 49 L. R. A. 424, 
 which holds contributory negligence by reason of intoxication prevents recovery. 
 
 Cited in notes (40 L.R.A. 131) on intoxication as affecting negligence; (11 Am. 
 St. Rep. 67) on intoxication as affecting contributory negligence; (25 Am. St. Rep. 
 40, 44) on intoxication as contributory negligence. 
 
 Distinguished in Rozwadosfskie v. International & G. N. R. Co. 1 Tex. Civ. 
 App. 493, 20 S. W. 872, holding drunkard's contributory negligence prevents re- 
 covery for injury not preventable by ordinary care. 
 Dnty after discovering dan&er. 
 
 Cited in International & G. N. R. Co. v. Tabor, 12 Tex. Civ. App. 290, 33 
 S. W. 894, holding contributory negligence no excuse for injury avoidable by or- 
 dinary care after danger is discovered. 
 
 Distinguished in Martin v. Texas & P. R. Co. 87 Tex. 123, 26 S. W. 105-2. 
 holding railroad not liable for damage from escaping sparks where owner omits 
 ordinary precaution. 
 
 1 L. R. A. 479, HEDGE v. GLENNY, 75 Iowa, 513, 39 N. W. 818. 
 Burden of proof. 
 
 Cited in notes (56 L.R.A. 824) on burden of proof of husband's debt to wife on 
 account of property received from her; (11 Am. St. Rep. 758) on burden of proof 
 'as to fraudulent conveyances. 
 Contracts between biiabniid and wife. 
 
 Cited in Lambrecht v. Patten, 15 Mont. 266, 38 Pac. 1063. holding payment by 
 husband to wife of debt honestly due not fraud in itself; Carse v. Reticker 95 
 
115 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 482 
 
 Iowa, 29, 58 Am. St. Rep. 421, 63 X. W. 461, holding earnings from contract sub- 
 let to wife by husband not subject to husband's debts; Payne v. Wilson, 76 Iowa, 
 280, 41 X. W. 45, holding wife not barred as to creditors from asserting right 
 to money loaned husband without notice: Heacoek v. Heacock, 108 Iowa, 549, 
 75 Am. St. Rep. 273, 79 X. \V. 353 (dissenting opinion), majority holding wife 
 not empowered to contract with husband, by statute empowering her to contract 
 as if sole. 
 
 Cited in notes (13 Am. St. Rep. 859) on husband's right to wife's earnings; 
 (58 Am. St. Rep. 496) on agreements to compensate husband or wife for services, 
 or to relinquish claims on earnings or profits; (90 Am. St. Rep. 550) on attacks 
 by creditors on conveyances made by husbands to wives. 
 Rig-tit of wife io her own earnings. 
 
 Cited in Ehlers v. Blumer, 129 Iowa. 171, 105 X. W. 406, holding property pur- 
 chased by wife's earnings in keeping boarders, not liable for husband's debts; 
 Aultman Engine & Thresher Co. v. Greenlee, 134 Iowa, 372, 111 X*. W. 1007, hold- 
 ing that husband's creditors cannot have set aside repayment by husband to wife 
 of her earnings as music teacher which she had paid out for family necessities 
 upon agreement to be repaid; Bartholomew v. Adams, 143 Iowa, 359, 121 N. W. 
 1026, holding that married woman may maintain action in her own name to 
 .recover for services rendered in keeping boarders. 
 
 1 L. R. A. 480, GRAXD RAPIDS & I. R. CO. v. SPARROW, 36 Fed. 210. 
 
 KiKht to trial ny Jury. 
 
 Cited in McLeod v. Lloyd, 43 Or. 275, 71 Pac. 795, holding right to jury trial 
 not infringed by act giving any person claiming interest in realty not in pos- 
 session of another, right to determination in equity. 
 
 Cited irvfootnotes to Brown v. Circuit Judge, 5 L. R. A. 226, which holds stat- 
 ute transferring chancery powers to jury, invalid; State v. Trenton, 5 L. R. A. 
 352, which holds ju:.f trial not demandable of right, in absence of statute, on 
 indictment for violation of municipal police regulation; People v. Powell, 11 L. 
 R. A. 75, which holds common-law right to jury trial violated by change of venue 
 without consent of defendant in criminal case; Craig v. State, 16 L. R. A. 358, 
 which upholds statute authorizing court to examine witnesses upon confession of 
 murder; Hall v. Armstrong, 20 L. R. A. 366, which holds jury trial not demand- 
 able in book account. 
 
 Cited in notes (1 L. R. A. 633) on constitutional right to trial by jury in 
 criminal cases construed; (15 L. R. A. 614) on constitutional right to jury for 
 assessment of damages on default; (15 L. R. A. 287) on constitutional right 
 'to jury trial in equitable cases, on account of demand for damages. 
 Federal jurisdiction. 
 
 Cited in notes ( 18 L. R. A. 267 ) on adoption by Federal courts of remedies 
 created by state statutes; (2 L. R. A. 225) on equity jurisdiction of Federal 
 -courts; (12 L.R.A.(X.S.) 76, 78) on effect of legal remedy upon equitable juris- 
 diction of Federal courts to remove cloud on title. 
 \i-<--*-it > -of posaession to Quiet title. 
 
 Cited in footnote to Oppenheimer v. Levi, GO L. R. A. 729, which holds posses- 
 sion unnecessary for reversioner to maintain action for removal of cloud upon, 
 title. 
 
 .1 L. R. A. 482, DAVIDSOX v. OLD PEOPLE'S MUT. BEX. SOC. 39 Minn. 303, 
 
 39 X". W. 803. 
 'Duty of inutnal insurance company to take notice of statute. 
 
 <Cited in Montgomery v. Whitbeck, 12 X. D. 391, 96 X. W. 327, holding member 
 
1 L.R.A. 482] L. R. A. < A>1-> AS AUTHORITIES. 116 
 
 of mutual insurance company bound to take notice of statute authorizing and 
 controlling organization and business, as well as of articles and by-laws. 
 How far insurance company bound by nets of agent. 
 
 Cited in footnotes to Follet v. United States Mut. Acci. Asso. 12 L. R. A. 315, 
 which holds knowledge of agent waives inaccuracy in application, though policy 
 states agents cannot waive its conditions; Cole v. Union Cent. L. Ins. Co. 47 
 L. R, A. 201, which holds provisions of policy, issued on contract with general 
 agent, of which insured had no knowledge or information, deemed waived. 
 Waiver of by-lavr of insurance company or benefit association. 
 
 Cited in Houdeck v. Merchants & B. Ins. Co. 102 Iowa, 306 r 71 X. W. 354, 
 holding by-law waived if inconsistent with policy; Elliott v. Safety Fund Life 
 Asso. 76 Mo. App. 567, holding by-laws not part of policy not binding on insured ; 
 \Yiberg v. Minnesota Scandinavian Relief Asso. 73 Minn. 302, 76 X. \V. 37. 
 holding mutual benefit association may waive provision of by-laws limiting 
 eligibility to membership; Ledebuhr v. Wisconsin Trust Co. 112 Wis. 662, 88 
 X. W. 607, holding issuance of benefit certificate violating by-law requiring bene- 
 ficiary to be named, a waiver of by-law; Wagner v. Supreme Lodge, K. & L. 
 of H. 128 Mich. 663. 87 X. W. 903, holding issuance of membership certificate a 
 waiver of by-law making initiation condition precedent; Sovereign Camp of 
 Woodmen v. Fraley, 94 Tex. 206, 51 L. R. A. 902, 59 S. W. 879. holding mutual 
 benefit association assuming duty of notifying member of constitutional provision, 
 bound by notice actually given: Matthes v. Imperial Acci. Asso. 110 Iowa, 229. 
 SI N. W. 484, holding purpose of mutual benefit association not. as matter oj 
 law, known to member; McCoy v. Xorthwestern Mut. Relief Asso. 92 Wis. 533. 
 47 L. R. A. 684, 66 N. W. 697, holding limitation of liability in certificate, though 
 not authorized by by-laws, binding on member; Moore v. Union Frateinal Acci. 
 Asso. 103 Iowa, 428, 72 X. W. 645, holding indemnity, absolute on face of member- 
 ship certificate, limited by reference on back to particular fund; Hesiuger v. Home 
 Benefit Asso. 41 Minn. 517, 43 X. W. 481, holding member bound by article of 
 mutual benefit association making claim payable out of particular fund. 
 
 Cited in notes (47 L. R. A. 681) on conflict between by-laws and certificate 
 or policy of a mutual benefit society or insurance company; (8 L. R. A. 114) on 
 contract of mutual benefit association; (19 Am. St. Rep. 784) on waiver of by- 
 laws by mutual benefit association. 
 Reinstatement of members of mutual benefit associations. 
 
 Cited in Dickey v. Covenant Mut. Life Asso. 82 Mo. App. 376, holding member 
 wrongfully refused reinstatement may recover premiums; Supreme Lodge Xat. 
 Reserve Asso. v. Turner, 19 Tex. Civ. App. 353, 47 S. W. 44, holding additional 
 representations required from member entitled to reinstatement not binding; 
 Mettner v. Xorthwestern Xat. L. Ins. Co. 127 Iowa, 212. 103 X*. W. 112, holding 
 society waives any other conditions and is bound by original contract. 
 
 Cited in note (52 Am. St. Rep. 577) on reinstatement of members of mutual 
 benefit associations. 
 Construction of certificate of insurance. 
 
 Distinguished in Laker v. Royal Fraternal Union, 95 Mo. App. 366, holding that 
 by-laws and certificate of insurance are to be construed together, where by-laws 
 are referred to in certificate as part of contract. 
 
 1 L. R. A. 483, STRIXGHAM v. STEWART. Ill X. Y. 188, 13 X. E. 870. 
 >Iaster*s duty to provide for servant's safety. 
 
 Cited in Benfield v. Vacuum Oil Co. 75 Hun. 213, 27 X'. Y. Supp. 16. holding 
 master not bound to instruct servant about danger not reasonably to be appre- 
 
117 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 483 
 
 bended; Cobb v. Welcher, 75 Hun, 284, 26 N. Y. Supp. 1068, holding statutes do 
 not require factory proprietor to guard machinery against extraordinary acci- 
 dents; Stewart v. New York, O. & W. R. Co. 28 X. Y. S. R. 218, 8 N. Y. Supp. 
 19, holding it master's duty to provide suitable tools and competent workmen to 
 direct labor; Hogan v. Smith, 31 N. Y. S. R. 801, 9 N. Y. Supp. 881, holding 
 employer required to perform his legal duties before being exempt from liability 
 for injuries to employees; Dingley v. Star Knitting Co. 34 N. Y. S. R. 991, 12 
 N. Y. Supp. 31, denying liability for starting of safe machine in unknown manner; 
 Harley v. Buffalo Car Mfg. Co. 142 N. Y. 34, 36 N. E. 813, denying liability for 
 breaking of belt fastener not shown less safe than others; Doyle v. White, 9 App. 
 Div. 526, 41 N. Y. Supp. 628, denying liability for breaking of sufficient eyebolt 
 through defect not observable; McGoldrick v. Metcalf, 37 N. Y. S. R. 611, 14 
 N. Y. Supp. 289, denying liability for breaking of reasonably safe wooden wedge 
 subjected to unusual strain by injured servant; McGovern v. Central Vermont 
 R. Co. 24 N. Y. S. R. 948, 6 N. Y. Supp. 838, denying" liability for accidental 
 closing of trap door of grain bin of kind safely used for seventeen years; Fan- 
 nessey v. Western U. Teleg. Co. 6 Misc. 323, 26 N. Y. Supp. 796, denying liability 
 for striking of injured servant by brick discharged from suitable chute; Camp- 
 bell v. Cunard S. S. Co. 36 N. Y. S. R. 854, 13 N. Y. Supp. 288, denying liability 
 for slipping of drum of soda on nondefective truck and gangway; Walsh v. Com- 
 mercial Steam Laundry Co. 11 Misc. 5, 31 N. Y. Supp. 833, denying liability for 
 wrinkling of roller cover, frequently occurring, and easily remedied by employees; 
 Glassheim v. New York Economical Printing Co. 13 Misc. 176, 34 N. Y. Supp. 69, 
 denying liability for clothing caught in set screw of standard shafting, long used 
 smd in good repair; Petaja v. Aurora Iron Min. Co. 106 Mich. 464, 32 L. R. A. 
 438, 58 Am. St. Rep. 505, 64 N. W. 335, 66 N. W. 951, denying liability for fall 
 of ore from roof of chamber made by servants in mining; Kennedy v. Jackson 
 Agri. Iron Works, 1.2 Misc. 339, 33 N. Y. Supp. 630, denying liability for falling 
 of reasonably safe and suitable derrick; Butler v. Tovvnsend, 126 N. Y. 110, 26 
 N. E. 1017, denying liability for breaking of defective plank in temporary staging; 
 Kuhn v. Delaware, L. & W. R. Co. 77 Hun, 393, 25 N. Y. Supp. 883, requiring 
 master to provide safe scaffolding; Scherer v. Holly Mfg. Co. 86 Hun, 39. 33 N. Y. 
 Supp. 205, holding master responsible for defective adjustment of apparatus by 
 employee, resulting in injury to another employee; Dwyer v. Hills Bros. Co. 79 
 App. Div. 48, 79 N. Y. Supp. 785, holding owner not liable for injury due to 
 fall occasioned by slight depression of steel bars of door mat; South Baltimore 
 Car Works v. Schaefer, 96 Md. 109, 94 Am. St. Rep. 560, 53 Atl. 665, denying 
 right of recovery where accident was not shown to have been caused by unsafe 
 machine or by defect discoverable upon inspection; Wilcox v. Hebert, 90 Ark. 149, 
 
 118 S. W r . 402, holding that error of master in selecting a more dangerous kind 
 of machine than he might have done, does not of itself render him liable for 
 injury to employee; SteAvart & Co. v. Harman, 108 Md. 455, 20 L.R.A. (N.S.) 232, 
 70 Atl. 333, holding master not liable for injury to employee caused by the break- 
 ing of a window which it was his duty to open and close, where it was shown 
 that it was properly constructed and the master had no notice of defects; Monsen 
 v. Crane, 99 Minn. 189, 108 N. W. 933; Burns v. Old Sterling Iron & Min. Co. 188 
 X. Y. 184. SO N. E. 927, holding master bound only to use reasonably safe and 
 proper appliances; Hahn v. Conried Metropolitan Opera Co. 126 App. Div. 817, 
 111 X. Y. Supp. 161, holding employer not liable for injury to employee from 
 collapse of a bridge on a stage, where he had furnished proper material and 
 competent persons for its construction; Hynes v. State, 63 Misc. 594, 118 X. Y. 
 Supp. 621, holding state not liable for injury caused by slight elevation on canal 
 bridge, where the plaintiff knew of the elevation and could have avoided it. 
 
1 L.R.A. 483] L. R. A. CASES AS AUTHORITIES. 118 
 
 Cited in notes (6 L.R.A. 646) on inability of volunteer to recover for injuries, 
 except where caused by wantonness or malice; (6 L.R.A. (X.S.) 605) on different 
 forms of stating general rule with respect to master's duty as to places and 
 appliances; (16 L.R.A. (X.S.) 133) on furnishing servant article in general use 
 as measure of master's duty; (10 Am. St. Rep. 835) on duty to supply safe 
 machinery, etc., for servants. 
 
 Distinguished in Kuhn v. Delaware. L. & W. R. Co. 92 Hun, 78, 36 X. Y. Supp. 
 339; Sciolina v. Erie Preserving Co. 7 App. Div. 421, 39 X. Y. Supp. 916; 
 Grifhahn v. Kreizer, 02 App. Div. 417, 70 X. Y. Supp. 973; Kern v. De Castro. 
 & D. Sugar Ref. Co. 24 X. Y. S. R. 750, 5 X. Y. Supp. 548: Van Tasscll v. Xew 
 York, L. E. & W. R. Co. 1 Misc. 305, 20 X. Y. Supp. 708; Daley v. Union Dry 
 Dock Co. 9 Misc. 396, 30 X. Y. Supp. 337; Sappenfield v. Main Street & Agri. 
 Park R. Co. 91 Cal. 57, 27 Pac. 590; Myers v. Hudson Iron Co. 150 Mass. 130, 
 15 Am. St. Rep. 176, 22 N. E. 631, holding that, on conflicting testimony. 
 questions of due care or reasonable safety of place, machinery, or appliances are- 
 for jury. 
 On elevators. 
 
 Cited in Kern v. DeCastro, & D. Sugar Ref. Co. 125 X. Y. 54, 25 X. E. I071 r 
 holding master not liable for lack of safety appliances to prevent fall of freight 
 elevator; Ingram v. Fosburgh, 73 App. Div. 134. 70 X. Y. Supp. 344, denying 
 liability for falling of suitable freight elevator with servant forbidden to ride 
 thereon; Hoehmann v. Moss Engraving Co. 4 Misc. 162, 23 X. Y. Supp. 787, deny- 
 ing liability for failure to have suitable freight elevator sheathed; Sullivan v. 
 Poor, 32 Misc. 576. 66 X. Y. Supp. 409, denying liability for defect in rented 
 freight elevator, pronounced safe on inspection; Hart v. Xaumburg, 123 X. Y. 644. 
 3 Silv. Ct. App. 192. 25 X. E. 385. denying liability for unknown defect in most 
 approved elevator; White v. Eidlitz, 19 App. Div. 258, 46 X. Y. Supp. 184. denying 
 liability for unexplained obstruction of elevator well by planks; Montgomery v. 
 Bloomingdale, 34 App. Div. 378, 54 X. Y. Supp. 329, denying liabilit}* for jolting 
 of elevator, not occurring through neglect of master; Stackpole v. \Vray. 74 App. 
 Div. 313, 77 X. Y. Supp. 633, denying liability for breaking of elevator bolt with 
 no external evidence of weakness; Stackpole v. Wray, 99 App. Div. 264, 90 X. Y. 
 Supp. 1045, holding master not liable for injury caused by fall of an elevator 
 where he had used reasonable care in keeping it safe, and had no knowledge of 
 any defect; Knickerbocker v. General Railway Signal Co. 133 App. Div. 790, 118 
 N. Y. Supp. 82, holding master bound only to operate elevator in manner rea- 
 sonably safe for employees, and not bound to adopt the best possible method. 
 
 Distinguished in Griffen v. Manice, 47 App. Div. 72. 62 X. Y. Supp. 364. holding 
 landlord bound to use utmost care as to defects in machinery of passenger ele- 
 vator. 
 Railroad employees. 
 
 Cited in Xorfolk & \V. R. Co. v. Cromer, 99 Va. 787, 40 S. E. 54, holding that 
 railroad need not provide latest inventions and appliances; Bennett v. Long 
 Island R. R. Co. 163 X. Y. 5, 57 X. E. 70. denying liability for customary failure 
 to lock or target perfect standard switch which had been safely u>rd : Siiem-er v. 
 Xew York C. & H. R. R. Co. 67 Hun, 199, 22 X. Y. Supp. 100. denying liability 
 for unblocked frog, though such were not in general use on other railroads; 
 Powers v. Xew York C. & H. R. R. Co. 60 Hun, 24, 14 X. Y. Snpp. 4nS. denying 
 liability for hidden flaw in coupling pin; France v. Rome, W. & O. R. Co. 88 Hun, 
 320, 34 N. Y. Supp. 408, denying liability for failure to equip train with air 
 brakes before their practicability was thoroughly established; Leary v. Lehigh 
 Valley R. Co. 76 Hun, 577. 28 X. Y. Supp. 187, denying liability for failure to 
 furnish boiler on engine with fusible plug, and provide light for test cocks; Wy- 
 
31!) L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 481 
 
 man v. Lehigh Valley R. Co. 86 C. C. A. 161, 158 Fed. 962; Healy v. Buffalo, R. & 
 P. R. Co. Ill App. Div. 621, 97 N 1 . Y. Supp 801, holding master required only to 
 use reasonably safe appliances, and in their selection he may rely on the judg- 
 ment of others in the same line of business. 
 
 Cited in note (48 L. R. A. 70) on liability of employer for injuries received by 
 servants owing to the want of blocking at switches. 
 \en]i-'i><-<- of coservant. 
 
 Cited in Filbert v. Delaware & H. Canal Co. 121 N. Y. 212, 23 N. E. 1104, 
 holding master not liable where removal of plank by servant caused coservant's- 
 injuries ; Miles v. The Servia, 44 Fed. 944, where a servant allowed skid to catch 
 in ship hatch and injure coservant; Belt v. Henry Du Bois Sons Co. 97 App. Div. 
 394. 89 X. Y. Supp. 1072, holding master not liable for injury to employee on pile 
 driver caused by the negligence of the captain of a tug boat used in moving it. 
 
 Cited in footnotes to Elliot v. Chicago, M. & St. P. R. Co. 3 L. R. A. 363, which 
 holds master not liable to section foreman for negligence of conductor; Gulf, 
 C. & S. F. R. Co. v. Blohn, 4 L. R. A. 764, which holds railroad fireman cannot 
 recover for injuries caused by engineer's negligence. 
 
 Cited in notes (3 L. R. A. 560; 4 L. R. A. 795) on nonliability of master for 
 negligence of fellow servant: (4 L. R. A. 852) on liability of master in case of 
 negligence of superior servant; (8 L. R. A. 820) on cases of accidents in the use 
 of elevators; (50 L. R. A. 439) on common employment of servants operating 
 hoisting apparatus and other servants in the same establishment; (50 L. R. A. 
 460) on common employment of servants engaged in work on buildings in process 
 of erection; (1 L.R.A.(X.S.) 682) on departmental theory as affecting different 
 cla-ses of workmen operating or using machinery, or in building a structure. 
 Co-servants' fault in operating elevator. 
 
 Cited in Zilver v. Graves Co. 106 App. Div. 586, 94 X. Y. Supp. 714, holding 
 master not liable for an injury to clerk employed to address envelopes, where the 
 injury was caused by the negligence of one employed by the same master to run 
 an elevator. 
 Evidence of longr nse of article without accident. 
 
 Cited in William Laurie Co. v. McCullough, 174 Ind. 487, 90 N. E. 1014, holding 
 admissible evidence that floor dressing had been used for several years and no 
 similar accident had occurred therefrom. 
 Abatement of actions after reversal. 
 
 Cited in Carr v. Rischer, 119 N. Y. 125, 23 X. E. 296, stating that court, 
 after reversing plaintiff's judgment, denied new trial, defendant being dead; 
 Molloy v. Starin. ]34 App. Div. 543, 119 X. Y. Supp. 610, holding that where ver- 
 dict in action for negligence has been "reversed, annulled and held for nothing" 
 and new trial ordered the action abates if defendant dies before the new trial. 
 
 1 L. R. A. 487, ECKERSOX v. CRIPPEX, 110 X. Y. 585, 18 X. E. 443. 
 License to create linrden upon land. 
 
 Cited in White v. Manhattan R. Co. 139 X. Y. 24, 34 X. E. 887, holding exe- 
 cuted written permission to build railroad in street, mere license; Thoemke v. 
 Fiedler. il Wi*. 390. 64 X. W. 1030, holding oral permission to make and main- 
 tain ditch across land of another, mere license; Xowlin Lumber Co. v. Wilson, 119 
 Mich. 413. 78 X. W. 338, holding permission by letter to build road across 
 writer's land, acted upon, mere license; Kommer v. Daly, 104 App. Div. 531, 93 
 X. Y. Supp. 1021. holding mere license revokable whether founded upon a consid- 
 eration or not: Shaw v. Proffitt, 57 Or. 202, 109 Pac. 584, holding that written 
 permission to construct ditch constitutes grant of right of way and not mere re- 
 
1 L.R.A. 487] L. R. A. (ASKS AS AUTHORITIES. 120 
 
 vocable license; Ely v. State, 199 X. Y. 219, 92 X. E. 629, holding that state 
 acquired prescriptive right to flood lands by continuous use, during low-water 
 reasons, of flash boards, for more than twenty years. 
 
 Cited in footnote to Wilson v. St. Paul, M. & M. R. Co. 4 L. R. A. 378. which 
 holds parol license to drain revocable without notice. 
 
 Cited in notes (49 L. R. A. 507) on revocability of license to maintain a burden 
 on land, after the licensee has incurred expense in creating the burden; (10 
 L. R. A. 487) on effect of executed license. 
 
 Explained in George v. Xew York, 42 Misc. 273, 86 N. Y. Supp. (510, holding 
 acquiescence in use by servient owner for prescribed period does not mean con- 
 sented or assented to or suffered without objection. 
 Revocation by conveyance or alienation of title. 
 
 Cited in Bunke v. Xew York Teleph. Co. 110 App. Div. 248, 97 N. Y. Supp. 66, 
 Tiolding that conveyance to third party revokes a license to string wires upon 
 the premises; Re White Plains, 124 App. Div. 3, 108 N. Y. Supp. 596, holding li- 
 cense to enter upon lands revoked ipso facto by a conveyance of the land to a 
 third person; Clark v. Strong, 105 App. Div. 182, 93 N. Y. Supp. 514, on mere 
 license being revoked by the death of the grantor even though a consideration 
 were paid therefor. 
 
 Cited in note (31 Am. St. Rep. 714) on revocation of parol licenses by convey - 
 
 1 L. R. A. 490, SPERB v. McCOUX, 110 N. Y. 605, 18 N. E. 441. 
 Action on administrator's bond. 
 
 Cited in Hood v. Hayward, 124 X. Y. 10, 26 X. E. 331, as not preventing 
 Diction on administrator's bond, without unsatisfied execution; McCoun v. Sperb, 
 -53 Hun, 166, 6 N. Y. Supp. 106, holding that surety may call upon either admin- 
 istrator for indemnification; Re Scudder, 21 Misc. 183, 47 N. Y. Supp. 101. sus- 
 taining action on bond by surviving administratrix; Palmer v. Ward, 01 App. 
 T)iv. 456, 86 X. Y. Supp. 990, holding innocent administrator not liable to sure- 
 ties for default of coadministrator where sureties assented that latter should 
 actively manage estate. 
 
 Cited in note (9 L. R. A. 227) on action on administrator's bond. 
 
 Distinguished in Xanz v. Oakley, 120 N. Y. 88, 9 L. R. A. 226, 24 X. E. 306, 
 holding joint administrator not liable to other sureties for torts of coadmin- 
 istrator. 
 Representative capacity to sne as affected by individnal liability. 
 
 Cited in Starke v. Myers, 24 Misc. 578. 53 X. Y. Supp. 650. sustaining demurrer 
 to counterclaim against executor individually in action for estate ; Lawyers' 
 Surety Co. v. Reinach, 25 Misc. 159, 54 N. Y. Supp. 205, Affirming 23 Misc. 247, 
 51 N. Y. Supp. 162, holding individual defense immaterial in action by assignee 
 of administratrix to recover estate moneys. 
 
 Cited in footnote to Lauraglenn Mills v. Ruff, 49 L. R. A. 448, which holds 
 set-off of corporation debt not allowable in action on stockholder's individual 
 liability. 
 Trnstees of express trnsts. 
 
 Cited in Hanlon v. Metropolitan L. Ins. Co. 9 Misc. 73, 29 X. Y. Supp. 65, 
 "holding beneficiary not trustee of express trust through agreement with insured 
 to pay funeral expenses and employ certain undertaker. 
 
 1 L. R. A. 491, Re MACKAY, 110 X. Y. 611, 6 Am. St. Rep. 409, 18 X. E. 433. 
 Sufficiency of acknowledgment of testator's signature. 
 
 Cited in Re Bernsee, 141 X. Y. 392, 36 X. E. 314, sustaining will with full 
 
121 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 491 
 
 attestation clause, witnesses disagreeing as to seeing testator's signature; Re 
 Laudy, 148 N. Y. 407, 42 X. E. 1061, ordering trial by jury on disagreement of 
 witnesses as to signing of will ; Re Laudy, 14 App. Div. 164, 43 N. Y. Supp. 689, 
 holding acknowledgment insufficient, neither witness seeing or distinguishing sig- 
 nature: Vogel v. Lehritter, 64 Hun, 314, 18 N. Y. Supp. 923, holding will signed 
 before foreign notary, sealed in envelope, and thereafter acknowledged before two 
 witnesses, invalid; Re McDougall, 87 Hun, 350, 34 N. Y. Supp. 302, holding will 
 invalid where one witness did not see testator's signature; Re Elmer, 88 Hun, 
 292, 34 N. Y. Supp. 406, holding will not signed or signature acknowledged before 
 subscribing witnesses, invalid; Re De Haas, 9 App. Div. 563, 41 N. Y. Supp. 696, 
 reversing probate of will with full attestation clause, one witness being dead, 
 neither survivor remembering seeing testator's signature before attestation; Re 
 Abercrombie, 24 App. Div. 409, 48 X. Y. Supp. 414, holding acknowledgment in- 
 sufficient, testator's signature being hidden and acknowledged to only one of the 
 witnesses; Re Purdy, 46 App. Div. 35, 61 N. Y. Supp. 430, Affirming 25 Misc. 
 460, 55 N. Y. Supp. 644, holding will invalid, one witness not seeing testator's 
 signature, the other saying testator signed after attestation; Re Turell, 47 App. 
 Div. 565, 62 N. Y. Supp. 1053, Affirming 28 Misc. 107, 59 N. Y. Supp. 780, holding 
 seeing testator's signature before attestation insufficient, without due publication; 
 Re Sanderson. 9 Misc. 577, 30 X. Y. Supp. 848, upholding will under strong cir- 
 cumstantial evidence of due execution and publication, witnesses forgetting 
 whether they saw signature; Re Losee, 13 Misc. 299, 34 X. Y. Supp. 1120, holding 
 person unable to see signature to will, incompetent attesting witness; Re Eakins, 
 13 Misc. 560, 35 X. Y. Supp. 489, holding exhibition of piece of blank paper 
 declared to be will, insufficient; Re Van Houten, 15 Misc. 202, 37 X. Y. Supp. 39, 
 holding seeing testator's hand upon pen and hearing scratching thereof, sufficient 
 evidence of signature; Re Stockwell, 17 Misc. 110, 40 X. Y. Supp. 734, holding 
 exhibition of will with signature and request to sign "my will," sufficient acknowl- 
 edgment; Re Kivlin. 37 Misc. 188, 74 X. Y. Supp. 937, refusing probate, no pro- 
 vision of statutes concerning execution being complied with; Re Simmons, 30 
 X. Y. S. R. 448, 9 X. Y. Supp. 352, holding will invalid, testator not signing 
 before witnesses nor acknowledging signature; Tobin v. Haack, 79 Minn. 107, 
 81 X. YV. 758, holding unpublished will, witnesses not seeing testator's signature, 
 void; Hull v. Hull, 117 Iowa, 743, 89 X. W. 979, holding burden of proof as to 
 due execution and attestation of will on proponents. 
 
 Cited in footnote to Lane's Appeal, 4 L. R. A. 45, which holds that statute in 
 force at testator's death cannot cure failure to comply with statute in effect at 
 time of execution and attestation. 
 
 Cited in notes (38 L.R.A. (X.S.) 166, 167) on necessity that witnesses see testa- 
 tor sign, or that they see his signature; (114 Am. St. Rep. 215) on attestation 
 and witnessing of wills. 
 
 Distinguished in Re Wilcox.. 37 X. Y. S. R. 467, 14 X. Y. Supp. 109, upholding 
 holographic will not folded, when acknowledged, so as to obscure signature; Re 
 Look, 1 Connoly, 411, 26 N. Y. S. R. 747, 5 N. Y. Supp. 50, upholding will 
 signed in presence of one witness, declared to be last will before both; Re Lang- 
 try, 1 Silv. Sup. Ct. 525, 5 X. Y. Supp. 501, holding will properly executed where 
 the attestation clause recites the acknowledgment of the signature by testator, 
 and the draftsman testifies thereto, though witnesses do not distinctly remember 
 the circumstances. 
 Burden of proof. 
 
 Cited in Steinkuehler v. Wempner, 169 Ind. 159, 15 L.R.A. (X.S.) 677, 81 N. 
 W. 4^2, holding that burden of proving execution and attestation of a will is 
 upon the proponent. 
 
1 L.R.A. 493] L. R. A. CASES AS AUTHORITIES. 122 
 
 1 L. R, A. 493, ADAMS v. CHICAGO, B. & N. R. CO. 39 Minn. 286, 12 Am. St. 
 
 Rep. 644, 39 N. W. 629. 
 Abutting- owner's interest in street. 
 
 Cited in Kalteyer v. Sullivan, 18 Tex. Civ. App. 493, 46 S. W. 288, holding 
 abutting owner has property right in public alley; Moose v. Carson, 104 N. C. 435, 
 7 L. R. A. 550, 17 Am. St. Rep. 681, 10 S. E. 689, holding town cannot sell land, 
 thereby reducing street to alley, without compensation to abutting owner; Van- 
 derburgh v. Minneapolis, 98 Minn. 336, 6 L.R.A.(N.S.) 744, 108 N. W. 480, holding 
 he has right of ingress and egress; Sandpoint v. Doyle, 14 Idaho, 757, 17 L.R.A. 
 (N.S.) 500, 95 Pac. 945, holding he has right of ingress and egress which cannot 
 be taken from him without compensation; Guilford v. Minneapolis & St. L. R. Co. 
 M Minn. 109, 102 N. W. 365, holding private person cannot maintain action for 
 interference of public highway unless he is thereby specially injured; Merchants' 
 Mut. Teleph. Co. v. Hirschman, 43 Ind. App. 290, 87 N. E. 238, holding that plac- 
 ing of telephone pole in front of door of saloon constitutes particular damage to 
 owner entitling him to damages; Smith v. St. Paul, M. & M. R. Co. 39 Wash. 355, 
 70 L.R.A. 1018, 109 Am. St. Rep. 898, 31 Pac. 840, on right to recover for obstruc- 
 tion which does not destroy access. 
 
 Cited in notes (10 L. R. A. 276) on rights of abutting landowners in streets: 
 (1 L. R. A. 856; 2 L. R. A. 56) dedication of land to street purposes; (22 L. R. 
 A. 543) on American law as to easements of light, air, and prospect, as to right 
 to light and air from public highway; (85 Am. St. Rep. 310) on obstruction to 
 ingress or egress as element of damages allowable in eminent domain proceed- 
 ings; (101 Am. St. Rep. 110) on rights, obligations, and remedies of persons 
 over whose land a highway runs; (106 Am. St. Rep. 238, 253) on what are 
 additional servitudes in highways. 
 Taking: of easement in street. 
 
 Cited in White v. Northwestern North Carolina R. Co. 113 N. C. 616, 22 L. R. 
 A. 627, 37 Am. St. Rep. 639, 18 S. E. 330, holding steam railroad in street 
 additional servitude to abutting owner with fee; Henry Gaus & Sons Mfg. Co. v. 
 St. Louis, K. & N. W. R. Co. 113 Mo. 315, 18 L. R. A. 341, 20 S. W. 658, holding 
 construction of steam railroad in street dedicated generally, on grade and under 
 municipal authority, not "taking" from abutter; Gustafson v. Hamm, 56 Minn. 
 338, 22 L. R. A. 567, 57 N. W. 1054, holding private railroad in street addi- 
 tional servitude, and invasion of abutting owner's rights to access, light, and 
 air; Gundlach v. Hamm, 62 Minn. 45, 64 N. W. 50, holding individual not 
 peculiarly damaged, without action for operation of railroad across street; 
 Kray v. Muggli, 84 Minn. 99, 54 L. R. A. 480, 87 Am. St. Rep. 332, 86 N. W. 
 882, holding one obtaining prescriptive right to dam stream estopped from 
 injuriously restoring to natural channel; South Bound R. Co. v. Burton. 07 S. C. 
 523, 46 S. E. 343, holding property owner entitled to damages for depreciation of 
 his lot by construction of railroad in street, though fee of streets is in state. 
 
 Cited in footnote to Theobald v. Louisville, N. O. & T. R. Co. 4 L. R. A. 735. 
 which holds construction of steam railroad in street a "taking" from abutting 
 owner. 
 
 Cited in notes (4 L. R. A. 624) on use of public streets for horse railroads: 
 (8 L. R. A. 173) on elevated street railways; (14 L. R. A. 383) on injury to 
 abutter's easements by railroad in street; (6 L. R. A. 254) on improper use of 
 street by railroad company; (2 L. R. A. 59; 5 L. R. A. 371) on right to use of 
 public street by railroads; (15 L.R.A.(N.S-) 51) on cutting off access to highwny 
 as a taking. 
 
 Distinguished in Willis v. Winona City, 59 Minn. 34, 26 L. R. A. 144, 60 N. W. 
 
123 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 497 
 
 814; Brand v. Multnomah County, 38 Or. 100, 50 L. R. A. 396, 84 Am. St. Rep. 
 772. 62 Fac. 210, both holding bridge approach not additional servitude upon 
 highway. 
 
 Disapproved in Garrett v. Lake Roland Elev. R. Co. 79 Md. 281, 24 - L. R. A. 
 :!!>7. 2!) Atl. 830, holding abutting owner's property not "taken" by construction 
 of elevated railroad abutments in street. 
 D:> MIH s;e for railroad, etc., in street. 
 
 Cited in Demueles T. St. Paul & N. P. R. Co. 44 Minn. 437, 46 N. W. 912, 
 holding abutting owner entitled to damages for railroad in part of street opposite 
 his premises only; Carroll v. Wisconsin C. R. Co. 40 Minn. 169, 41 N. W. 661, 
 holding railroad company not liable to adjoining landowner for smoke, noise, 
 and jarring from operation; Lamm v. Chicago, St. P. M. & 0. R. Co. 45 Minn. 
 73, 10 L. R. A. 269. 47 X. W. 455, limiting damages in trespass by operation 
 of railroad in street, to interference with access, light, and air; Cram v. Laconia, 
 71 X. H. 48, 57 L. R. A. 286, 51 Atl. 635, holding damage by discontinuance 
 of street not inclusive of diversion of traffic and diminishing of trade which can 
 go by longer route; Donovan v. Allert, UN. D. 289, 58 L. R. A. 781, 95 Am. 
 St. Rep. 720. 91 N. W. 441, upholding injunction to exclude telephone poles from 
 street front before damages paid; Jacksonville, T. & K. W. R. Co. v. Lockwood, 
 33 Fla. 594, 15 So. 327. holding entire damage for permanent injury to realty 
 recoverable by owner of fee in one action; Bowers v. Mississippi & R. River 
 , Boom Co. 78 Minn. 403, 79 Am. St. Rep. 395, 81 N. W. 208, holding riparian 
 proprietor has successive actions for damage by piling; Foster Lumber Co. v. 
 Arkansas Valley & W. R. Co. 20 Okla. 600, 30 L.R.A. (X.S.) 240, 100 Pac. 1110, 
 Affirming on Rehearing 20 Okla. 592, 30 L.R.A. (N.S.) 237, 95 Pac. 224, holding 
 that abutter whose means of access is cut off or materially interrupted by rail- 
 road in street is entitled to damages therefor; Tomlin v. Cedar Rapids & I. C. R. 
 & Light Co. 141 Iowa, 603, 22 L.R.A. (X.S.) 534, 120 N. W. 93 (dissenting opin- 
 ion), on right of railroad to construct, without compensation to abutters, line in 
 street. whose fee has been conveyed to state. 
 
 Cited in notes (36 L.R.A.iX.S.) 697, 701, 736, 737, 780) on abutter's right to 
 compensation for railroads in streets; (34 L. ed. U. S. 355) on liability of rail- 
 roads occupying streets for damages to abutters; (35 Am. St. Rep. 536) on use of 
 streets by railroad as new servitude entitling abutter to compensation; (109 Am. 
 St. Rep. 915) on noise, smoke and cinders from railroad as "damage" within 
 guaranty against taking of private property without compensation. 
 Easements of lijilit. air, and prospect. 
 
 Cited in notes (22 L.R.A. 543) on American law as to easements of light, air, 
 and prospect; (2 Eng. Rul. Cas. 567; 41 Am. St. Rep. 324, 325, 326) on easements 
 of liffht and air in streets; (109 Am. St. Rep. 913) on obstruction of light and 
 air as "damage" to property within provision that property shall not be taken 
 or damaged for public use without compensation. 
 Effect of legislative authority on liability for nuisance. 
 
 Cited in notes (1 L.R.A. (X.S.) 78, 82, 119) on effect of legislative authority 
 upon liability for private nuisance; (22 Eng. Rul. Cas. 113) on legislative au- 
 thority as justification for nuisance. 
 
 1 L. R. A. 407, 1IVMAX v. STATE, 87 Tenn. 109, 9 S. W. 372. 
 Title of act. 
 
 Approved in Memphis Street R. Co. v. Byrne, 119 Tenn. 289, 104 S. W. 460, 
 holding title to act "amending act creating court of chancery appeals" sufficient, 
 tli< ii-ii it increased the size and jurisdiction of the court and gave it a new name. 
 
1 L.K.A. 497] L. R. A. CASES AS AUTHORITIES. 124 
 
 Cited in McElwee v. McEhvee, 97 Term. 652.. 37 S. W. 560, holding act extend- 
 ing statute of limitations to liens on realty in order to quiet titles, includes all 
 liens on realty; Gibson County v. Pullman Southern Car Co. 42 Fed. 574, holding- 
 mode and manner of valuing telegraph for taxation and of taxing sleeping cars, 
 one subject; State v. Bradt, 103 Tenn. 592, 53 S. W. 942, holding that filing and 
 recording labels, trade-marks, etc., does not include adopting, using, and protecting 
 them, or unauthorized use of another's seal or name; State ex rel. Astor v. 
 Schlitz Brewing Co. 104 Tenn. 728, 78 Am. St. Rep. 941, 59 S. W. 1033, holding 
 prohibition of transactions lessening competition or influencing prices, covers ex- 
 clusionary clause; Carroll v. Alsup, 107 Tenn. 267, 64 S. W. 193. holding assess- 
 ment and collection of revenue, includes exemptions; Saunders v. Savage, 108 
 Tenn. 345, 67 S. W. 471, holding severance and transference of cause, not to- 
 cover removal by sole defendant; Schmalz v. Wooley, 56 N. J. Eq. 657, 39 Atl. 
 539, limiting amending act with broader title to object of act amended; Equitable 
 Guarantee & T. Co. v. Donahoe, 3 Pcnn. (Del.) 195, 49 Atl. 372, holding pro- 
 vision for municipal taxation void under title of taxation for state and county 
 purposes; State ex rel. Wolfe v. Bronson, 115 Mo. 282, 21 S. W. 1125 (dissenting 
 opinion) , majority holding act by title applicable to "all public schools within 
 this state" may exclude certain portions; Memphis Street R. Co. v. State, 110" 
 Tenn. 608, 75 S. W. 730; Goodbar v. Memphis, 113 Tenn. 35, 81 S. W. 1061; 
 Memphis v. Hastings, 113 Tenn. 166, 69 L.R.A. 757, 86 S. W. 609; Wright v.. 
 Cunningham, 115 Tenn. 454, 91 S. W. 293; Galloway v. Memphis, 116 Tenn. 747 r 
 94 S. W. 75, holding that title to amendatory statute need not set out the 
 character of the amendment provided it is germane to the title of the original 
 act and the latter title is recited. 
 
 Cited in notes (12 Am. St. Rep. 696) on title of amendatory statute; (64 Am. 
 St. Rep. 79, 100) on sufficiency of title of statute; (79 Am. St. Rep. 481) as to 
 when title of statute embraces only one subject, and what may be included' 
 thereunder. 
 
 Distinguished in Malone v. Williams, 118 Tenn. 447, 121 Am. St. Rep. 1002. 
 303 S. W. 798, holding that repeal by the enactment of a new law is not constitu- 
 tional under a title purporting to amend. 
 Statutes definitive of crime. 
 
 Cited in State v. Hayes, ]16 Tenn. 45, 93 S. W. 98, holding that where title 
 limits it to "gambling on races" no other gambling can be included in the body 
 of the act; Com. v. Hehort, 13 Pa. Dist. R. 680, 35 Pittsb. L. J. N. S. 184, 30 Pa. 
 Co. Ct. 168, holding that where title of act recites that it is an "act to provide 
 against adulteration of food" the body thereof cannot include liquors, nor the 
 sale of foods. 
 
 1 L. R. A. 498, McCONVILLE v. GILMOUR, 36 Fed. 277. 
 
 Federal jurisdiction of suit by or against agent or receiver of national 
 bank. 
 
 Cited in Guarantee Co. of N. A. v. Hanway, 44 C. C. A. 316, 104 Fed. 372, 
 upholding Federal jurisdiction of suit to control official conduct of agent of 
 national bank stockholders; Chetwood v. California Nat. Bank, 113'Cal. 654, 45 
 Pac. 854, holding appointment of agent of national bank stockholders who pre- 
 sents commission, not subject to collateral attack in state court action for di- 
 rectors' misconduct; Grant v. Spokane Nat. Bank, 47 Fed. 673, and Thompson v. 
 Pool, 70 Fed. 727, both upholding Federal jurisdiction of national bank receiver 
 appointed by comptroller; Murray v. Chambers, 151 Fed. 143, holding that Fed- 
 eral courts have jurisdiction over action by receiver of national bank to recover 
 assets regardless of amount involved or citizenship of the parties. 
 
125 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 500 
 
 1 L. R. A. 500, MISSOURI P. R. CO. v. IVEY, 71 Tex. 409, 10 Am. St. Rep. 758, 
 
 9 S. W. 346. 
 Care-takers, drovers, or the like, as passengers. 
 
 Cited in Brewer v. New York, L. E. & W. R. Co. 124 N. Y. 64, 11 L. R. A. 
 485, footnote p. 483, 21 Am. St. Rep. 647, 26 N. E. 324, holding carrier liable 
 for negligence to express messenger although express company assumed risk; 
 Memphis & C. Packet Co. v. Buckner, 108 Ky. 706, 57 S. W. 482, holding shipper 
 of stock, carried on steamboat on condition that he is to care for his stock, a 
 passenger; International & G. N. R. Co. v. Armstrong, 4 Tex. Civ. App. 150, 
 23 S. W. 236, holding railroad corporation liable for negligent injury, while en- 
 gaged in caring for stock, by one riding on driver's pass; Texas & P. R. Co. v. 
 Fenwick, 34 Tex. Civ. App. 227, 78 S. W. 548, holding that "newsboy" on train 
 is a "passenger." 
 
 Cited in notes (22 L. R. A. 794) on rights of person riding on pass or contract 
 for free passage; (11 L. R. A. 486) on postal agents as passengers; (6 L. R. A. 
 <546) on volunteer cannot recover for injuries, except where caused by wantonness 
 or malice. 
 Employees or passengers. 
 
 Cited in Atchison, T. & S. F. R. Co. v. Fronk, 74 Kan. 522, 87 Pac. 698, 11 A. & 
 E. Ann. Cas. 174, holding that a student brakeman is an employee of the railroad 
 notwithstanding any statement which may appear in his contract with the 
 company. 
 
 Cited in note (61 Am. St. Rep. 89) on who are passengers and when they be- 
 come such. 
 Limiting- carrier's liability to passengers. 
 
 Cited in Ft. Worth & D. C. R. Co. v. Rogers, 21 Tex. Civ. App. 608, 53 S. W. 366, 
 holding that Texas railway cannot limit liability as carrier; Doyle v. Fitchburg 
 R. Co. 166 Mass. 497, 33 L. R. A. 847, 55 Am. St. Rep. 417, 44 N. E. 611, holding 
 release by passenger for hire of carrier's liability for negligence, invalid; Central 
 R. Co. v. Lippman, 110 Ga. 678, 50 L. R. A. 679, 36 S. E. 202, holding passenger's 
 release of liability for negligence while traveling on way freights, invalid; Sager 
 V. Northern P. R. Co. 166 Fed. 534, holding contract with circus proprietor for 
 transportation to be no defense to action by circus employee for injury through 
 carrier's negligence. 
 
 Cited in footnote to Chicago & N. W. R. Co. v. Chapman, 8 L. R. A. 508, which 
 holds carrier cannot exempt itself from liability for gross negligence or wilful 
 misconduct. 
 
 Cited in notes (7 L. R. A. 215; 10 L. R. A. 420) on limitation of carrier's 
 liability by contract; (12 L.R.A. 340) on stipulation in contract of carriage; 
 (13 Am. St. Rep. 784, 786) on extortion of unauthorized stipulations from shippers 
 and their effect; (16 Am. St. Rep. 319; 20 Am. St. Rep. 643) on limitation of 
 carrier's liability; (88 Am. St. Rep. 97, 102) on limitation of carrier's liability in 
 bills of lading. 
 
 Distinguished in Russell v. Pittsburgh, C. C. & St. L. R. Co. 157 Ind. 313, 55 
 L. R. A. 256, 87 Am. St. Rep. 214, 61 N. E. 678, holding sleeping-car porter's con- 
 tract to waive any right of action for carrier's negligence, valid. 
 Dnty of carrier. 
 
 Cited in Cruseturner v. International & G. N. R. Co. 38 Tex. Civ. App. 473, 86 
 S. W. 778, holding it to be question for jury to decide whether carrier in failing 
 to give warning of danger, exercised the degree of care and prudence required by 
 law; International & G. N. R. Co. v. Cruseturner, 44 Tex. Civ. App. 186, 98 S. W. 
 423, holding carrier not relieved from duty of exercising the degree of care im- 
 
1 L.R.A. 500] L. R. A. CASE? AS AUTHORITIES. 126 
 
 posed upon it by law, by a showing that it acted as was customary upon similar 
 
 occasions. 
 
 Res grestte. 
 
 Cited in Wilkins v. Ferrell, 10 Tex. Civ. App. 236, 30 S. W. 450. holding by- 
 stander's contemporaneous statements not res gestce; National Masonic Acci. Asso. 
 v. Shryock, 20 C. C. A. 8, 36 U. S. App. 658, 73 Fed. 778, holding declaration in 
 other disconnected transaction, three hours after accident, not res gestce ; Fidelity 
 & C. Co. v. Haines, 49 C. C. A. 382, 111 Fed. 340, holding agent's statement not 
 competent evidence of insurance on previous day; Texas & X. 0. R. Co. v. Mar- 
 shall, 57 Tex. Civ. App. 542, 122 S. W. 946, holding inadmissible, statement of 
 fellow passenger to plaintiff that it was a shame for a man to have to take the 
 insulting language of conductor. 
 
 Cited in notes (19 L.R.A. 750) on how near the main transaction must decla- 
 rations be made in order to constitute part of the res gestce; (20 L.R.A.fN.S.) 
 145) on nonparticipation in accident or affray as rendering one's statements or 
 exclamations inadmissible as res gestce; (20 Am. St. Rep. 518) on admissibility 
 of opinions expressed after accidents; (11 Eng. Rul. Cas. 292) on admissibility of 
 declarations as part of the res gestce. 
 Admissibility of irresponsive answer in ileposition. 
 
 Cited in Parker v. Chancellor, 78 Tex. 527, 15 S. W. 157, and Gulf, C. & S. F. 
 R. Co. v. Shearer, 1 Tex. Civ. App. 348, 21 S. W. 133, holding nonresponsive 
 answer in deposition admissible against objection on trial; Ivaack v. Stanton. 51 
 Tex. Civ. App. 501, 112 S. W. 702, holding that objection that answers in deposi- 
 tion are not responsive is not available when made for first time or. trial. 
 
 Distinguished in Missouri P. R. Co. v. Smith, 84 Tex. 349, 19 S. W. 509. holding 
 answer admissible over objection for generality of question; filing date of deposi- 
 tion not shown. 
 Motion to quash deposition. 
 
 Cited in St. Louis Southwestern R. Co. v. Harkey, 39 Tex. Civ. App. 527, 88 S. 
 W. 506, holding that motion to quash a deposition comes too late when made After 
 the parties have announced ready for trial. 
 
 1 L. R. A. 503, QUIGLEY v. PENNSYLVANIA S. VALLEY R. CO. 121 Pa. 35, 
 
 15 Atl. 478. 
 Obligation to compensate adjoining owners. 
 
 Cited in Beidler's Appeal, 1 Monaghan (Pa.) 340, 23 W. N. C. 453, 17 Atl. 244, 
 holding obligation to exist in spite of bond to indemnify city against damage to 
 abutting owners. 
 Right to occupy highway. 
 
 Cited in footnote to Chicago G. W. R. Co. v. First M. E. Church, 50 L. R. A. 
 488, which holds right to maintain private nuisance injurious to abutting owners 
 cannot be granted by legislature or municipal council. 
 
 Cited in note (36 L.R.A.(N.S.) 675, 761) on abutter's right to compensation for 
 railroads in streets. 
 
 1 L. R. A. 505, BAIZLEY v. THE ODORILLA, 121 Pa. 231, 15 Atl. 521. 
 Jurisdiction of state court. 
 
 Cited in The Victorian, 24 Or. 133, 41 Am. St. Rep. 838, 32 Pac. 1040, holding 
 contract to furnish material in construction of vessel, though afloat, non-maritime, 
 i.icn on -vessel. 
 
 Cited in footnote to Clyde v. Steam Transp. Co. 1 L. R. A. 794, which holds lien 
 maritime and entitled to precedence, though created by state statute. 
 
127 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 512 
 
 I L. R. A. 507, SOUTH BALTIMORE CO. v. MUHLBACH, 69 Md. 395, 16 Atl. 
 
 117. 
 Krai h or insanity an affecting: competency as witness. 
 
 Approved in Flach v. Gottschalk Co. 88 Md. 377, 42 L. R. A. 748, 71 Am. St. 
 Rep. 418. 41 Atl. 908, holding testimony by agent of corporation who made con- 
 tract, admissible in spite of other party's subsequent insanity. 
 
 Cited in note (27 L.R.A. (X.S.) 818) on competency of stockholder as witness 
 where corporation is party to suit prosecuted by or against a personal repre- 
 sentative. 
 Statute of frauds. 
 
 Cited in Bruns v. Spalding, 90 Md. 361, 40 Atl. 194, holding executed agree- 
 ment to improve, sell, and divide the profits derived from land, not within statute. 
 Review of prayer for charge not based on the pleading's. 
 
 Cited in Home Friendly Soc. v. Roberson, 100 Md. 88, 59 Atl. 279; Richardson 
 v. Anderson, 109 Md. 651* 25 L.R.A. (N.S.) 400, 130 Am. St. Rep. 543, 72 Atl. 485; 
 Monumental Brewing Co. v. Larrimore, 109 Md. 687. 72 Atl. 596, holding that 
 where prayer does not refer to the pleadings, the question raised is whether the- 
 evidence shows a good cause of action. 
 
 1 L. R. A. 510, MILLIKEX v. HATHAWAY, 148 Mass. 69, 19 X. E. 16. 
 Void conveyance l>y insolvent. 
 
 Cited in footnotes to Van Raalte v. Harrington, 11 L. R. A. 424, which holds^ 
 creditors attacking conveyance have burden of proving vendee's participation ii> 
 fraud: Manning v. Beck, 14 L. R. A. 198, which holds valid, bill of sale to creditor 
 ignorant of vendor's intent to make general assignment. 
 
 Cited in notes (37 L. R. A. 475) on effect of insolvency statutes upon mortgage- 
 or sale preferring creditors; (3 L. R. A. 823) on when sale or assignment vitiated, 
 for fraud; (12 L.R.A. 810) on validity of judgment by confession; (34 Am. St~ 
 Rep. 857) on validity of preferences in assignments for creditors. 
 Auctioneers' liability for conversion. 
 
 Cited in notes (50 L.R.A. 655) on liability of auctioneers for conversion, tres- 
 pass, or other positive act of wrongdoing against third parties under orders of 
 employers; (24 Am. St. Rep. 801) on conversion of personalty by auctioneer 
 suflicient to sustain trover. 
 
 1 L. R. A. 512, WIXX v. SAXFORD, 148 Mass. 39, 18 N. E. 677. 
 Separation agreement. 
 
 Cited in Bailey v. Dillon, 186 Mass. 246, 66 L.R.A. 428, 71 X. E. 538, holding 
 valid agreement between wife and husband's trustee under which husband places 
 funds for her support in hands of trustee and she agrees to make no further 
 claims on him for support. 
 
 Cited in footnotes to Foote v. Xickerson. 54 L. R. A. 554. which holds agreement 
 void: IJaum v. Baum, 53 L. R. A. 650, which holds void, agreement, before sepa- 
 ration, to supply means and assign insurance; Coleman v. Whitney, 9 L. R. A.. 
 517. which holds that wife may enforce valid agreement between her husband and 
 third party for her benefit, entered into at time of separation; Henderson v. 
 Henderson. 48 L. R. A. 766, which holds agreement to support wife valid when, 
 made after separation; Palmer v. Palmer. 61 L. R. A. 641, which holds contract 
 between husband and wife to secure divorce a rinculo matrimonii, void. 
 
 Cited in notes (6 L.R.A. 488) on effect of divorce on articles of separation;. 
 (83 Am. St. Rep. 863, 873) on validity and effect of separation agreements. 
 
1 L.R.A. 513] L. R. A. CASKS _\> AUTHORITIES. 128 
 
 I L. R. A. 513, SULLIVAN v. OLD COLONY R. CO. 148 Mass. 119, 18 N. E. 678. 
 Rights and duty s to removal of pattsensrer. 
 
 Cited in Galveston, H. & S. A. R. Co v. Long, 13 Tex. Civ. App. 665, 36 S. 
 \Y. 4S5, holding carrier not liable for not at once removing intoxicated but not 
 disorderly passenger; Cobb v. Boston Elev. R. Co. 179 Mass. 214, 60 N. E. 476, 
 holding it the duty of conductor to immediately remove drunken pasenger. 
 
 Cited in footnotes to Fisher v. West Virginia & P. R. Co. 23 L. R. A. 758, 
 which holds it duty of conductor after notice to use ordinary precaution for 
 safety of intoxicated passenger riding on platform; Paddock v. Atchison, T. & 
 S. F. R. Co. 4 L. R. A. 231, which holds passenger rightly removed whose skin 
 had broken out in apparent smallpox eruptions. 
 
 Cited in notes (5 L. R. A. 820) on right to expel passenger from train; (40 
 L. R. A. 136) on intoxication of passenger as affecting negligence; (3 L. R. A. 
 733) on undertaking of carrier to protect passenger from violence and abuse of 
 its servants; (14 L. R. A. 796) on liability of master for false arrest, imprison- 
 ment, or malicious prosecution by servant; (20 L.R.A. (N.S.) 969) as to whether 
 false imprisonment may be predicated of partial or conditional restraint. 
 Liability of employer for acts of special policeman. 
 
 Cited in note (23 L.R.A.(N.S.) 290) on liability of employer for acts of special 
 police officer appointed by public authority. 
 
 1 L. R. A. 514, QUIMBY v. DURGIN, 148 Mass. 104, 19 N. E. 14. 
 Extent of lien. 
 
 Cited in Cary Hardware Co. v. McCarty, 10 Colo. App. 218, 50 Pac. 744, hold- 
 ing detached buildings in same plant subject for lien for work upon one, where 
 all were included in description; Whalen v. Collins, 164 Mass. 148, 41 N. E. 124, 
 holding lien not enforceable against part only of lot; Collins v. Patch, 156 Mass. 
 318, 31 N. E. 295, holding lien on the whole lot not affected by subsequent con- 
 veyance of portion. 
 
 Cited in notes (17 L.R.A. 315) on right to file single mechanics' lien against 
 several buildings; (26 L.R.A. (N.S.) 837) on extent of land to which mechanics' 
 lien will attach; (65 Am. St. Rep. 167) on including property in mechanic's lien 
 in addition to that on which work was performed or materials furnished. 
 Payment by note. 
 
 Cited in Bradway v. Groenendyke, 153 Ind. 511, 55 N. E. 434, holding execu- 
 tion of note prima facie evidence of payment only in cases governed by law 
 merchant; McLean v. Wiley, 176 Mass. 235, 57 N. E. 347, and Davis v. Parsons, 
 157 Mass. 587, 32 N. E. 1117, holding evidence sufficient to support finding that 
 payment not intended. 
 
 Cited in notes (2 L.R.A.(N.S.) 263) on obligation as equivalent of payment, for 
 purpose of subrogation; (35 L.R.A.(N.S.) 52) on payment by commercial paper. 
 
 1 L. R. A. 516, MANNING v. SPRAGUE, 148 Mass. 18, 12 Am. St. Rep. 508, 
 
 18 N. E. 673. 
 Champerty. 
 
 Cited in Joy v. Metcalf, 161 Adams. 515. 37 N. E. 671. holding nonchampertous, 
 contract providing for purchase of share in deceased's estate, for amount con- 
 tingent on saving made by purchase: Manning v. Perkins, 85 Me. 174, 26 Atl. 
 1015, holding nonchampertous. contract for contingent fee in prosecution of claim 
 against fund received by United States under treaty. 
 
 Cited in footnotes to Reece v. Kyle, 16 L. R. A. 723, which holds noncham- 
 pertous, an agreement between attorney and client for division of judgment, 
 
129 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 522 
 
 expense of enforcing which originally borne by attorney; Johnson v. Van Wyck, 
 41 L. R. A. 520. which holds champertous agreement by attorney to bear entire 
 expense of prosecuting suit in consideration of half of recovery; Newman v. 
 Froitas. 50 L. R. A. 548, which holds champertous agreement by wife in divorce 
 proceedings to pay attorney one third of recovery; Croco v. Oregon Short-Line 
 R. Co. 44 L. R. A. 285, which holds agreement by attorney for contingent fee 
 and payment by him of court expenses, champertous; Irwin v. Currie, 58 L. R. 
 A. 830, which holds attorney undertaking collection of demands on contingent 
 fee in violation of statute cannot retain the recovery without accounting; Dorr 
 v. Camden, 65 L.R.A. 348, which holds that contract for contingent fee must, in 
 order to be sustained, be shown to have been entered into by the client after full 
 knowledge of the facts and circumstances justifying such contract. 
 
 Cited in notes (4 L.R.A. 113) on champerty and maintenance; (13 Am. St. Rep. 
 290, 300) on contracts of attorneys void as against public policy; (28 Am. St. Rep. 
 757) on champerty; (6 Eng. Rul. Cas. 391) on invalidity of champertous agree- 
 ment or one for compounding a felony. 
 
 1 L. R. A. 518, DESHOX v. WOOD, 148 Mass. 132, 19 N. E. 1. 
 Antenuptial agreements. 
 
 Cited in Wind v. Haas, 8 Pa. Co. Ct. 648, holding antenuptial agreements 
 without intervention of trustee valid in equity; Ballard v. Brown, 74 Vt. 123, 
 52 Atl. 422, raising, but not deciding, question whether conveyance to wife 
 under verbal antenuptial contract, assailable by creditor or grantor. 
 
 Cited in footnote to Hunt v. Hunt, 59 L. R. A. 306, which holds verbal con- 
 tract to convey property in consideration of marriage not taken out of statute 
 by marriage. 
 
 Cited in notes (13 L. R. A. 712) on antenuptial settlement; (2 L. R. A. 373) 
 on antenuptial contract being within statute of frauds; (11 L.R.A. (N.S.) 594) 
 on postnuptial written contract to confirm antenuptial oral contract relinquish- 
 ing rights. 
 Fraudulent transactions between husband and wife. 
 
 Cited in note (12 L. R. A. 600) on fraudulent transactions between husband 
 and wife. 
 
 Distinguished in Clark v. McMahon, 170 Mass. 92, 48 N. E. 939, holding con- 
 veyance corformable to antenuptial agreement, in absence of fraud, valid as to 
 husband's creditors; Huntress v. Hanley, 195 Mass. 240, 80 N. E. 946. holding 
 valid assignment of property by a man to a woman two weeks before their mar- 
 riage upon consideration of her promise to marry him immediately. 
 
 1 L. R. A. 522, GALBRAITH v. LUNSFORD, 87 Tenn. 89, 9 S. W. 365. 
 Equi table estoppel. 
 
 Cited in Bristol-Goodson Electric Light & P. Co. v. Bristol Gas, Electric 
 Light & P. Co. 99 Tenn. 383, 42 S. W. 19, holding lienor suggesting issue 
 and assisting in sale of so-called first-mortgage bonds estopped to assert lien as 
 against innocent purchasers; Engholm v. Ekrem, 18 X. D. 195, 119 X. W. 35. 
 holding husband and wife estopped to question validity of verbal contract of sale 
 of homestead, where purchaser has paid part of price and made permanent 
 improvements. 
 
 Cited in notes (13 L. R. A. 270) on definition of equitable estoppel; (7 L. R. 
 A. 756) on actual fraud not an essential element of estoppel; (30 L.R.A. (X.S.) 3) 
 on estoppel of landowner permitting title to remain in another to assert it as 
 against latter's creditors; (11 Am. St. Rep. 592) on agreement or estoppel as to 
 boundary; (15 Eng. Rul. Cas. 417) on effect of part performance of lease. 
 L.R.A. Au. Vol. L 9. 
 
1 L.R.A. 522] L. R. A. CASES AS AUTHORITIES. 130 
 
 Distinguished in Bedford v. McDonald, 102 Tenn. 367, 52 S. W. 157, holding 
 appearance for defendant in action on nete, ownership of which was not litigated, 
 not to estop firm creditor from claiming judgment as firm asset. 
 Estoppel of married women. 
 
 Cited in Harris v. Smith, 98 Tenn. 297, 39 S. W. 343, holding married woman 
 estopped to assert title to land duly deeded by her; Johnson City v. Wolfe, 103 
 Tenn. 282, 52 S. W. 991, holding married woman estopped by conduct to deny 
 dedication of property to public use; Bruce v. Goodbar, 104 Tenn. 645, 58 S. W. 
 282, holding married woman estopped by deed to claim contingent interest 
 thereafter passing to her; Sears v. Davis 40 Or. 238, 66 Pac. 913, holding wife 
 permitting husband to retain apparent title for years estopped to assert claim 
 as against creditors; Hunt v. Reilly, 23 R. I. 473, 50 Atl. 833, holding wife 
 not estopped from asserting dower, where pretended release had been forged 
 thirty-five years before, without her knowledge; Crawford v. Woodward, 1 Tenn. 
 Ch. App. 311, holding that married woman may by acts in pais estop herself 
 from asserting title to real property against third persons misled to their preju- 
 dice; Grice v. Woodworth, 10 Idaho, 466, 69 L.R.A. 588, 109 Am. St. Rep. 214, 
 80 Pac. 912, holding that oral agreement for sale of homestead, where possession 
 is given and valuable improvements made, will be enforced against married 
 woman; Campbell v. Bartlett, 122 Tenn. 213, 25 L.R.A. (N.S.) 642, 122 S. W. 250, 
 on estoppel against married woman arising out of conduct deceiving and mislead- 
 ing person relying thereon. 
 
 Cited in footnotes to Hunt v. Reilly, 59 L. R. A. 206, which holds woman not 
 estopped to claim dower by failure, after learning of forgery of her name to 
 deed, to notify one purchasing without her knowledge; National Granite Bank 
 v. Tyndale, 51 L. R. A. 447, which holds married woman not estopped to deny 
 validity of note legally void because payable to husband; Hart v. Burch, 6 L. R. 
 A. 371, which holds release by widow of dower right, before assignment, to 
 husband's cotenant, ineffectual. 
 
 Cited in notes (2 L. R. A. 769; 4 L. R. A. 783) on doctrine of estoppel 
 applied to married women; (57 Am. St. Rep. 179) on estoppel of married women. 
 
 Distinguished in Franklin Sav. Bank v. Miller, 17 R. I. 273, 21 Atl. 542, 
 holding married women not estopped to deny validity of first mortgage by 
 recital in second mortgage that it is subject to prior mortgage. 
 Rights by prescription. 
 
 Cited in note ( 1 L. R. A. 489 ) on prescriptive right. 
 Statute of frauds, boundary agreements. 
 
 Cited in Hoar v. He,nnessy, 29 Mont. 257, 74 Pac. 452, holding that where 
 boundary is disputed adjoining owners may fix the line by oral agreement which 
 will be valid; Taylor v. Reising, 13 Idaho, 240, 89 Pac. 943, on same point. 
 
 Cited in note (10 L.R.A.(X.S.) 612) on effect of compromise locating division 
 line at place known not to be true boundary. 
 
 1 L. R. A. 528, AVELING v. NORTHWESTERN MASONIC AID ASSO. 72 Mich. 
 
 7, 40 N. W. 28. 
 Action on insurance certificate. 
 
 Cited in Peet v. Great Camp K. of M. 83 Mich. 95, 47 N. W. 119, holding 
 administrator who is also sole heir and beneficiary entitled to maintain action 
 on insurance certificate. 
 
 1 L. R. A. 529, CHESEBROUGH v. PINGREE, 72 Mich. 438, 40 N. W. 747. 
 Lease; statute of frauds. 
 
 Cited in Oliver v. Olmstead, 112 Mich. 485, 70 N. W. 1036, holding surviving 
 
131 L. E. A. CASES AS AUTHORITIES. [1 L.R.A. 535 
 
 partner cannot execute lease for term of years, not necessary to close partner- 
 ship business, without written authority from heirs of deceased partner. 
 
 'Cited in notes (7 L. R. A. 671) on lease; statute of frauds; (26 L. R. A. 
 800) on compensation for use of premises where lease invalid under statute of 
 frauds. 
 Effect of dilapidation or destruction of leased bnildingr. 
 
 Cited in Nashville, C. & St. L. R. Co. v. Heikens, 112 Tenn. 386, 65 L.R.A. 299, 
 79 S. W. 1038, holding the lease of a room or apartment in a building is termi- 
 nated by the destruction of the building; Bowen v. Clemens, 161 Mich. 494, 126 
 N. W. 639, holding where lot leased was larger than the building and building 
 could have been rebuilt without trespass tenant was not relieved from payment 
 of rent. 
 
 Cited in notes (10 L. R. A. 148) on rights and remedies of lessee in case of 
 failure to repair; (22 L. R. A. 615) on abatement of rent by surrender of prem- 
 ises on destruction of leased building. 
 
 1 L. R. A. 533, SHRYOCK v. BUCKMAN, 121 Pa. 248, 15 Atl. 480. 
 Judgments against married -women. 
 
 Cited in Breckwoldt v. Morris, 149 Pa. 293, 24 Atl. 300, holding coverture 
 may not be collaterally shown to defeat judgment good on face. 
 
 Cited in note (11 L. R. A. 585) on personal judgment against married 
 woman. 
 Collateral attack on judgment. 
 
 Cited in Vivian v. Challenger, 45 Pa. Super. Ct. 6, holding that joint owner, in 
 action of trespass against person taking entire property on execution on judg- 
 ment on note against another joint owner, cannot show that note was forgery. 
 Judgment on mechanic's lien. 
 
 Cited in Harbach v. Kurth, 131 Pa. 184, 18 Atl. 1062, holding judgment on 
 mechanic's lien cannot be collaterally attacked in foreclosure of subsequent 
 mortgage; Sicardi v. Keystone Oil Co. 149 Pa. 147, 24 Atl. 163, holding judg- 
 ment on mechanic's lien cannot be impeached collaterally as to land and build- 
 ings covered; Bankard v. Shaw, 199 Pa. 629, 49 Atl. 230, holding judgment on 
 note given by married woman in settlement of mechanic's lieu, good against 
 property, though lien defective. 
 
 Cited in note (83 Am. St. Rep. 520) on mechanics' liens on separate property of 
 married woman. 
 
 1 L. R. A. o3o. WALSH'S APPEAL, 122 Pa. 177, 9 A.m. St. Rep. 83, 15 Atl. 470. 
 What constitutes gift of thinu transferable in writing. 
 
 Cited in Com. v. Crompton, 137 Pa. 147, 26 W. N. C. 475, 20 Atl. 417, holding 
 gift of railroad stock by delivery to donee without written assignment, valid; 
 Knight v. Tripp. 121 Cal. 679, 54 Pac. 267, holding written assignment unaccom- 
 panied by actual or constructive delivery of property, not completed gift; 
 Flanagan v. Xash, 185 Pa. 45, 39 Atl. 818, holding deposit in name of two 
 persons, either or survivor having power to draw money, not gift to survivor; 
 Hemphill's Estate, 180 Pa. 92, 36 Atl. 406, holding mere direction to deliver 
 certificate of deposit, insufficient; Lewis's Estate, 2 Monaghan (Pa.) 668, holding 
 valid gift of interest made to mortgagor by indorsing payment on mortgage; 
 Funston v. Twining, 202 Pa. 92, 51 Atl. 736, holding reservation of interest 
 during life of donor, upon delivery of mortgages, does not invalidate gift of 
 principal : Stockham's Estate, 19 Pa. Co. Ct. C20, 6 Pa. Dist. R. 422, holding 
 invalid gift intended to take effect at donor's death; Keily's Estate, 9 Pa. Co. 
 
1 L.R.A. 535] L. R. A. CASES AS AUTHORITIES. 132 
 
 Ct. 176, 20 Phila. 81, 47 Phila. Leg. Int. 514, 27 W. N. C. 216, raising, but not 
 deciding, question whether gift of money in savings bank accomplished by deliv- 
 ery of bank book; Ritchie's Estate, 16 Lane. L. Rev. 22, holding gift of interest 
 on mortgage by written instrument, without delivery, void; Conway's Estate, 
 18 Lane. L. Rev. 133, holding delivery of order on bank for bonds, where donor 
 died before time lock opened so that bonds could be delivered in response thereto, 
 sufficient delivery to sustain gift; Kulp v. March, 13 Montg. Co. L. Rep. 20, 
 holding gift of life insurance without delivery of policies or assignments invalid; 
 Re Bauernschmidt, 97 Md. 61, 54 Atl. 637, holding gift of securities in safe-deposit 
 box not perfected by delivery of duplicate key, donor retaining control; Wil- 
 liams's Estate, 11 Pa. Dist. R. 637, holding a deposit in donee's name subject to 
 order of another in case of death, and delivery of pass book to such other con- 
 stitutes a good gift; Chapman v. Griffith, 12 Xorthamp. Co. Rep. 40, holding suf- 
 ficient, affidavit of defense in replevin alleging that defendant has title to goods 
 under parol agreement with plaintiff's decedent that goods were to be defendant's 
 if she lived with decedent until her death, which she did ; Smith's Estate, 23 Lane. 
 L. Rev. 13, holding that promissory note to university, maturing after donors 
 death, is void, where no other contributions were influenced by it and no work 
 undertaken. 
 
 Cited in footnote to Gammon Theological Seminary v. Robbins, 12 L. R. A. 
 506, holding valid gift of note retained by donor, not made by instrument 
 declaring gift. 
 
 Cited in notes (11 L. R. A. 685) on mere intention to give not a gift; (5 L. 
 R. A. 72) on present delivery necessary to complete gift; (3 L. R. A. 231) on 
 gift of bank book; (19 L. R. A. 700) on delivery of bank book to sustain gift of 
 deposit; (6 L. R. A. 406) on deposit of fund in trust for another as gift; (3 L. 
 R.A. 392) on trust created by deposit of money for another use; (34 Am. St. Rep. 
 205) on intention to give evidenced by ineffectual attempt to assign property 
 to another. 
 
 Distinguished in Wylie v. Charlton, 43 Neb. 845, 62 N. W. 220, holding parol 
 gift of land, followed by possession and improvement, good in equity; Griffith's 
 Estate, 1 Lack. Legal News, 319, holding change in pavings bank deposit, so as 
 to make it stand in joint names of husband and wife, fully executed gift to wife. 
 Gifts causa mortis. 
 
 Cited in Barnum v. Reed, 136 111. 398, 26 N. E. 572, holding gift causa mortis 
 differs from a gift inter vivos only in that former revocable by donor; Devol 
 v. Dye, 123 Ind. 325, 7 L. R. A. 440, 24 N. E. 246, holding delivery of key to box 
 in bank vault to cashier, with instructions to deliver contents in case of death, 
 valid gift; Caylor v. Caylor, 22 Ind. App. 673, 72 Am. St. Rep. 331, 52 N. E. 
 465, holding direction to one to deliver to donee property of donor in his pos- 
 session, valid gift; Crook v. First Nat. Bank, 83 VVis. 40, 35 Am. St. Rep. 17. 
 52 N. W. 1131, holding order to pay funds to donee, indorsed on receipt, valid 
 gift; Drew v. Hagerty, 81 Me. 243, 3 L. R. A. 232, 10 Am. St. Rep. 255, 17 Atl. 
 63, holding previous and continuous possession by donee of bank book not suffi- 
 cient delivery to effect gift; Happ's Estate, 31 Pittsb. L. J. N. S. 417, holding 
 money set apart for another in a secret place until the donor's death not a gift 
 causa mortis; Grow's Estate, 17 Pa. Dist. R. 419, holding a delivery of a savings 
 fund deposit book with words "I want you to have what is in there, if any 
 thing happens to me" does not constitute a valid gift causa mortis; Bowanka's 
 Estate, 37 Pa. Co. Ct. 600, holding mere declaration of husband, half hour before 
 death, that he wishes wife to have certificate of deposit, insufficient to constitute 
 gift causa mortis. 
 
 Cited in footnotes to Porter v. Woodhouse, 13 L. R. A. 64, which holds 
 
]33 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 541 
 
 delivery of deeds to third person without parting with control not valid gift 
 cause mortis; Peck v. Rees, 13 L. R. A. 714, which holds deed not delivered 
 by grantor's agent until after his death, not valid gift. 
 
 ( itod in notes (7 L. R. A. 439) on gifts causa mortis; (6 L. R. A. 367) on 
 what essential to constitute gift causa mortis; (18 L. R. A. 171) on constructive 
 delivery to sustain gift causa mortis; (99 Am. St. Rep. 902, 903) on gifts causa 
 mortis. 
 
 1 L. R. A. 538, CULBRETH v. SMITH, 69 Md. 450, 16 Atl. 112. 
 Joint tenancy. 
 
 Cited Colson v. Baker, 42 Misc. 409, 87 N. Y. Supp. 238, holding that one 
 seized in fee of an estate can by direct grant deed the property to another and 
 himself in joint tenancy. 
 Kstates: when Tested and when contingent. 
 
 Cited in footnotes to Green v. Grant, 18 L. R. A. 381, which holds children 
 have no vested interest in land devised in trust for mother's life, and upon her 
 death to be conveyed to children then living, if any; Starnes v Hill, 22 L. R. A. 
 598. which holds husband's interest contingent, on conveyance to wife for life, 
 with remainder over in the event of his outliving her; Bowen v. Hackney, 67 
 L.R.A. 440. which holds that no estate vests in children until widow's death un- 
 der will giving life estate to widow and providing that at her death that given 
 to her for life shall be equally divided between all the children, the representa- 
 tives of those having died to stand in place of ancestors. 
 
 Cited in note (9 L. R. A. 212) on vested and contingent remainders dis- 
 tinguished. 
 I.fiist-s with covenant for perpetual renewal. 
 
 Cited in O'Brien v. Clark, 104 Md. 39, 64 Atl. 53, on difference between lease 
 hold estates with and without covenants for perpetual renewal. 
 Leasehold as personal estate. 
 
 Cited in Holzman v. Wager, 114 Md. 333, 79 Atl. 205, Ann. Gas. 1912 A, 619, 
 holding valid will by male of nineteen bequeathing leasehold. 
 A .SNIU liability of leases. 
 
 Cited in note (10 Am. St. Rep. 557) on assignability of leases. 
 
 1 L. R. A. 541, NEW YORK, P. & N. R. CO. v. COULBOURX, 69 Md. 360, 9 
 
 Am. St. Rep. 430, 16 Atl. 208. 
 Contributory negligence on leaving; or boarding moving train. 
 
 Cited in Northern P. R. Co. v. Egeland, 5 C. C. A. 473, 12 U. S. App. 271, 56 
 Fed. 202; Louisville, E. & St. L. Consol. R. Co. v. Bean, 9 Ind. App. 243, 36 N. 
 E. 443; Omaha Street R. Co. v. Craig, 39 Neb. 614, 58 N. W. 209; Louisville 
 & N. R. Co. v. Crunk, 119 Ind. 533, 12 Am. St. Rep. 443, 21 N. E. 31, holding 
 it not negligence as matter of law to alight while cars in motion; Lacas v. 
 Detroit City R. Co. 92 Mich. 416, 52 N. W. 745, holding it not negligence to 
 alight after having started to place foot on running board, though go-ahead 
 bell has rung; Baltimore Traction Co. v. State, 78 Md. 423, 28 Atl. 397, holding 
 it negligence per se to attempt, with both hands filled, to board car moving at 
 6 miles per hour; Creech v. Charleston & W. C. R. Co. 66 S. C. 534, 45 S. E. 86, 
 holding one boarding train moving at 3 miles an hour, not negligent as a matter 
 of law: Hunterson v. Union Traction Co. 205 Pa. 579, 55 Atl. 543 (dissenting 
 opinion) majority holding stepping off or on moving car negligence per se; Walters 
 v. Missouri P. R. Co. 82 Kan. 743, 28 L.R.A.(N..) 1060. 109 Pac. 173, holding it a 
 question for the jury where passenger alights from moving train under direction 
 
1 L.R.A. 541] L. R. A. CASES AS AUTHORITIES. 134 
 
 of conductor and imperative orders; State use of Mummaugh v. Western Mary- 
 land R. Co. 98 Md. 131, 103 Am. St. Rep. 388, 56 Atl. 394, 1 A. & E. Ann. Gas. 
 598, holding railroad company liable for negligence resulting in injury to one 
 going on its car to deliver property for transportation with knowledge and con- 
 sent of company; United R. & Electric Co. v. Rosik, 107 Md. 145, 68 Atl. 511; 
 United R. & Electric Co. v. Weir, 102 Md. 290, 62 Atl. 588, holding it must de- 
 pend always upon the circumstances of the particular case whether the attempt 
 to alight from a moving car be negligence per se; Chesapeake & 0. R. Co. v. Paris 
 (Chesapeake & 0. R. Co. v. Bell) 111 Va. 57, 28 L.R.A. (N.S.) 779, 68 S. E. 398 
 (dissenting opinion), on negligence of person who entered car to assist passenger 
 in alighting from moving train. 
 
 Cited in footnotes to Philadelphia, W. & B. R. Co. v. Anderson, 8 L. R. A. 
 674, which holds it is not negligent per se to alight from train moving slowly 
 after stopping at station called; Hunter v. Cooperstown & S. Valley R. Co. 12 
 L. R. A. 429, which holds attempt to board train when near prominent obstruc- 
 tion, negligence; Weber v. Kansas City Cable R. Co. 7 L. R. A. 819, which holds 
 alighting on wrong side of cable car going at full speed, negligence; Western 
 Maryland R. Co. v. Herold, 14 L. R. A. 75, which holds jumping from train 
 moving down steep grade, with no one in charge, not negligence per se. 
 
 Cited in notes (11 L. R. A. 396) on negligence of passenger alighting from 
 moving train; (21 L. R. A. 363) on injuries in getting on and off moving train; 
 (3 L.R.A. 369) on injury suffered in alighting from train; (17 Am. St. Rep. 426) 
 on contributory negligence in alighting from moving train. 
 
 Distinguished in Garvey v. Rhode Island Co. 26 R. I. 83, 58 Atl. 456, holding it 
 negligence per se for one, while waiting, to take a position within line of the 
 passing car. 
 
 1 L. R. A. 545, BALLS v. DAMPMAN, 69 Md. 390, 16 Atl. 16. 
 Necessity of reference to power in will. 
 
 Followed in Cooper v. Haines, 70 Md. 284, 17 Atl. 79, holding reference to sum, 
 without mention of power, sufficient; Mines v. Gambrill, 71 Md. 35, 18 Atl. 43, 
 holding general disposition of property, without reference to power, not execu- 
 tion of same. 
 
 Cited in notes (2 L. R. A. 114) on inalienability of interest of cestui quc 
 trust; (64 L. R. A. 872) on what is sufficient execution, by will, of power of 
 appointment. 
 Interest of life tenant with power to appoint. 
 
 Cited in Re Weien, 139 Iowa, 675, 18 L.R.A. (N.S.) 475, 116 N. W. 791 (dis- 
 senting opinion), on power as a right independent of donee's life estate; Price 
 v. Cherbonnier, 103 Md. Ill, 63 Atl. 209, holding the donee of an equitable life 
 estate with power to devise to his children, has no interest that can be reached 
 by his creditors after his death. 
 Direction for payment of debts as charge on land. 
 
 Approved in Harmon v. Smith, 38 Fed. 484, setting aside conveyance by 
 executor, where personalty sufficient to have met all debts. 
 
 1 L. R. A. 546, BOWIE v. HALL, 69 Md. 433, 9 Am. St. R,ep. 433, 16 Atl. 64. 
 Stipulation for attorneys' fees as affecting negotiability. 
 
 Cited in Sylvester Bleckley Co. v. Alewine, 48 S. C. 311, 37 L. R. A. 88, foot- 
 note p. 86, 26 S. E. 609, which holds note rendered non-negotiable by stipulation 
 
 Cited in footnotes to Adams v. Seaman, 7 L. R. A. 224, which holds to same 
 effect; Montgomery v. Crosthwait, 12 L. R. A. 140; Farmers' Nat. Bank v. 
 
J3J L. R. A. CASES AS AUTHORITIES. [l L.R.A. .'4< 
 
 Sutton Mfg. Co. 17 L. R. A. 595; Dorsey v. Wolff, 18 L. R. A. 428; Oppenheimer 
 v. Farmers' & M. Bank, 33 L. R. A. 767; Bank of Commerce v. Fuqua, 14 L. R. 
 A. 588, which hold negotiability not affected by stipulation. 
 
 Cited in notes (7 L. R. A. 537) on requisites to negotiability; (7 L. R. A. 
 445) on stipulation for attorneys' fees in promissory notes; (3 L. R. A. 51) on 
 effect of stipulation for attorneys' fees on certainty as to payment of promis- 
 sory note. 
 Validity of stipulation for attorneys' fee*. 
 
 Approved in Gaither v. Tolson, 84 Md. 639, 36 Atl. 449, holding stipulation in 
 mortgage for payment of costs of collection, valid. 
 
 Cited in Chestertown Bank v. Walker, 90 C. C. A. 140, 163 Fed. 511, holding 
 a contract for payment of attorney's fees, if note is not paid at maturity to the 
 extent of a reasonable fee, is valid in Maryland. 
 
 Cited in footnotes to Levens v. Briggs, 14 L. R. A. 188, which holds stipula- 
 tion for payment of certain percentage as attorneys' fee, invalid, though "reason- 
 able" fee valid; Farmers' Nat. Bank v. Sutton Mfg. Co. 17 L. R. A. 595, which 
 holds unconditional stipulation, valid; Bank of Commerce v. Fuqua, 14 L. R. 
 A. 588, which holds stipulation for payment of "all attorneys' fees," valid; 
 Dorsey v. Wolff, 18 L. R. A. 428, which holds stipulation for 10 per cent 
 attorneys' fee not void for usury; Pattillo v. Alexander, 29 L. R. A. 616, which 
 tolds indorser's stipulation to pay attorneys' fees in case of collection at law, 
 enforceable only after proof of payment thereof, or liability incurred. 
 
 Cited in note (55 Am. St. Rep. 442) on validity of stipiilations for attorneys' 
 fees. 
 
 1 L. R. A. 548, PHENIX INS. CO. v. RYLAND, 69 Md. 437, 16 Atl. 109. 
 Extension of credit on premium. 
 
 Approved in McCabe Bros. v. Mtna. Ins. Co. 9 N. D. 25, 47 L. R. A. 645, 81 
 X. W. 426. holding prepayment of premium not essential to validity of parol 
 contract of renewal with agent. 
 
 Cited in Mallette v. British American Assur. Co. 91 Md. 483, 46 Atl. 1005, 
 holding agent authorized to waive prepayment of premium on agreement to 
 renew policy. 
 
 Cited in footnote to Idaho Forwarding Co. v. Fireman's Fund. Ins. Co. 17 L. 
 R. A. 586. which holds agent's contract to renew policy not to create present 
 contract of insurance. 
 
 Cited in note (22 L. R. A. 771) on validity of oral insurance contract. 
 Incidental Jurisdiction of equity to decree damages. 
 
 Followed in Maryland Home F. Ins. Co. v. Kimmell, 89 Md. 442, 43 Atl. 764, 
 ordering payment of policy after reformation. 
 
 Approved in Dodd v. Home Mut. Ins. Co. Co. 22 Or. 12, 28 Pac. 884, refusing 
 to retain case to determine legal rights where equity fails. 
 
 Cited in Walzl v. King, 113 Md. 556, 77 Atl. 1117, holding that equity, in suit 
 for specific performance of land contract, may determine purchaser's right to 
 damages for vendor's refusal to perform. 
 I'M v\ IT of equity to conform written instrument to oral agreement. 
 
 Approved in Pickett v. Wadlow, 94 Md. 568, 51 Atl. 423, holding that, upon 
 proper proof, deed may be changed to mortgage. 
 
 Cited in note (28 L.R.A.(X.S.) 919) on sufficiency of proof to justify relief 
 from mistake of law as to effect of instrument. 
 To enforce instrument n reformed. 
 
 Cited in ^Etna Indemnity Co. v. Baltimore. S. P. & C. R. Co. 112 Md. 397. 70 
 Atl. 251, holding it may retain control and enforce the instrument as reformed. 
 
1 L.R.A. 548] L. R. A. CASES AS AUTHORITIES. 13(J 
 
 1 L. R. A. 551, BISHOP v. McCLELLAND, 44 N. J. Eq. 450, 16 Atl. 1. 
 
 Decree as to distribution of other half of fund in Neilson v. Bishop, 45 N. J. 
 Eq. 475, 17 Atl. 962. 
 (.ill- by implication. 
 
 Approved in Barnard v. Barlow, 50 N. J. Eq. 135, 24 Atl. 912, holding failure 
 to devise remainder after life estate to daughter, and specific gift of $1 only 
 to sons, implied gift thereof to issue of daughters; Wolff e v. Loeb, 98 Ala. 433, 
 13 So. 744, holding absolute devise of all land to wife not to be implied from 
 provision that she should be "sole controller" thereof; Ball v. Phelan, 94 Miss. 
 318, 23 L.R.A. (N.S.) 898, 49 So. 956, holding that a devise by implication must 
 be predicated of a necessary implication, and the probability of the testator's 
 intention to make the gift must be so strong as to exclude the idea that a con- 
 trary intention existed in his mind. 
 
 Cited in Sumpter v. Carter, 115 Ga. 990, 60 L.R.A. 277, 42 S. E. 324, on gifts 
 by implication. 
 
 Cited in footnote to Lord v. New York L. Ins. Co. 56 L. R. A. 597, which 
 holds gift and delivery of policy provable by declaration of donor. 
 
 Cited in notes (11 L. R. A. 684) on gifts; (5 L. R. A. 72) on necessity of 
 present delivery in gifts inter vivos; (15 L.R.A. (N.S.) 74) on devise or bequest by 
 implication. 
 Gift of income as gift of fund. 
 
 Followed in Lippincott v. Pancoast, 47 N. J. Eq. 26, 20 Atl. 360, holding 
 legatee's interest in fund, income to which to be paid to him and "his heirs," 
 vested and distributable among his personal representatives; Hartson v. Elden, 
 50 N. J. Eq. 524, 26 Atl. 561, holding gift of income from fund to be applied 
 to care of cemetery forever, gift of fund, and void as perpetuity. 
 
 Cited in Re Ingersoll, 95 App. Div. 212, 88 N. Y. Supp. 698, holding that a gift 
 of the income and so much of the principal as may be necessary for the educa- 
 tion of the beneficiaries gives the fee to the latter; Illensworth v. Illensworth, 39 
 Misc. 197, 79 N. Y. Supp. 410, holding that under direction for the investing of 
 the legatee's share for his benefit for life and for the benefit of his wife and his 
 issue after his death, the remainder vested absolutely in them after his death. 
 Limitation over. 
 
 Cited in Smith v. Jackman, 115 Mich. 195, 73 N. W. 228, holding gift to wife 
 payable at such time as she may elect, vests on testator's death; Patterson v. 
 Madden, 54 N. J. Eq. 724, 36 Atl. 275, holding son takes devestable estate in fee 
 under devise to him, with remainder over in case of death without issue, leaving 
 widow, before death of testator's wife. 
 
 Cited in notes (3 L. R. A. 691; 9 L. R. A. 212) on vested and contingent 
 remainders; (10 Am. St. Rep. 474) on vested and contingent legacies. 
 Jurisdiction for construction of will. 
 
 Cited in note (10 L. R. A. 767) on jurisdiction of suit for construction of 
 will. 
 
 1 L. R. A. 554, MILLER v. CAMERON, 45 N. J. Eq. 95, 15 Atl. 842. 
 Enforceabilitr of unilateral contracts. 
 
 Approved in Perry v. Paschal, 103 Ga. 137, 29 S. E. 703, holding mutuality 
 created by institution of proceeding to enforce; Humes v. Swift, 2.7 Pa. Co. Ct. 
 185, holding that a conditional or unilateral contract may be enforceable in 
 equity. 
 
 Cited in Western Timber Co. v. Kalama River Lumber Co. 42 Wash. 620. 6 
 L.R.A. (N.S.) 401, 114 Am. St. Rep. 137, 85 Pac. 338, 7 A. & E. Ann. Cas. 667, 
 
137 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 561 
 
 holding that a unilateral contract may be enforced by the party who did not sign 
 it 
 
 Cited in note (6 L.R.A.(N.S.) 398) on right of party, not bound because he did 
 not sign contract, to enforce specific performance. 
 Necessity of tender of performance. 
 
 Approved in Clarno v. Grayson, 30 Or. 142, 46 Pac. 426, holding necessity for 
 tender of purchase price not waived by existence of unadjusted account between 
 parties. 
 
 Cited in Maryland Const. Co. v. Kuper, 90 Md. 542, 45 Atl. 197, holding acqui- 
 sition of title by vendor before time for conveyance under terms of contract, 
 sufficient; Trogden v. Williams, 144 N. C. 206, 10 L.R.A. (N.S.) 873, 56 S. E. 865, 
 holding that relief will be granted when the party seeking the aid of the court, 
 has complied with the terms of the option. 
 
 Annotation cited in Matteson v. United States & C. Land Co. 103 Minn. 411, 
 115 N. W. 195, holding that an allegation of willingness to perform was suf- 
 ficient. 
 
 1 L. R. A. 555, WOONSOCKET INST. FOR SAVINGS v. BALLOU, 16 R. I. 
 
 351, 16 Atl. 144. 
 Words sufficient to create chargre on land. 
 
 Followed in Chase v. Peckham, 17 R. I. 386, 22 Atl. 285, holding devise to 
 nephews, "they paying out of the same all my just debts," sufficient. 
 
 Cited in Calder v. Curry. 17 R. I. 616, 24 Atl. 103, holding plain implication 
 sufficient, although statute requires "direction" by testator; Re Martin, 25 R. I. 
 12, 54 Atl. 589, on power to charge land primarily for debts. 
 
 Cited in notes (5 L.R.A. (N.S.) 366) on testamentary trusts for payment of 
 debts; (25 Eng. Rul. Gas. 817) on what is necessary to exonerate general personal 
 estate of testator from his debts. 
 
 Distinguished in Sampson v. Grogan, 21 R. I. 185, 44 L. R. A. 715, 42 Atl. 
 712, holding provision that devisee of house should "keep the same in repair" 
 did not impose obligation to rebuild after destruction by fire. 
 Effect of payment by one of several joint debtors on running of limita- 
 tions. 
 
 Cited in Regan v. Williams, 185 Mo. 633, 105 Am. St. Rep. 600, 84 S. W. 959, 
 Affirming 88 Mo. App. 589, on the application of the proceeds of the sale by 'the 
 trustee under deed of trust, as such part payment as to suspend operation of 
 statute. 
 
 Cited in notes (37 L.R.A. (N.S.) 276) on payment or promise by principal as 
 extending limitation period as to surety; (65 Am. St. Rep. 688, 689) on effect of 
 payment or acknowledgment by one joint debtor on running of limitations. 
 
 Criticized and limited in Regan v. Williams, 88 Mo. App. 589, holding credit 
 entered by payee without maker's consent, ineffective to prevent bar. 
 
 Disapproved in Bergman v. Ely, 13 C. C. A. 322, 27 U. S. App. 650, 66 Fed, 
 42; and Cowhick v. Shingle, 5 Wyo. 100, 25 L. R. A. 612, 63 Am. St. Rep. 17, 
 37 Pac. 689, holding payment by one joint maker does not interrupt running of 
 limitation as to others. 
 Applicability of statute of limitations to trnsts. 
 
 Cited in notes (35 L. ed. U. S. 1031) on applicability of statute of limitations 
 to trusts; (16 Eng. Rul. Cas. 270) on running of limitations in case of breach of 
 fiduciary duty. 
 
 1 L. R. A. 561, Re McMANAMAN, 16 R, I. 358, 16 Atl. 148. 
 
1 L.R.A. 563] L. R. A. CASES AS AUTHORITIES. 13 
 
 1 L. R. A. 563, McGURK v. METROPOLITAN L. INS. CO. 56 Conn. 528, 16 
 
 Atl. 263. 
 Imputing; siucnt's knowledge to company. 
 
 Approved in Marston v. Kennebec Mut. L. Ins. Co. 89 Me. 273, 56 Am. St. 
 Rep. 412, 36 Atl. 389, holding company estopped to deny truth of answers in 
 application written by agent; Quinn v. Metropolitan L. Ins. Co. 10 App. Div. 
 486, 41 N. Y. Supp. 1060, holding forfeiture by infirmity waived by delivery 
 of policy by agent aware thereof; Supreme Lodge. K. of H. v. Davis, 26 Colo. 
 259, 58 Pac. 595, holding company chargeable with knowledge of misrepre- 
 sentations concerning age of applicant, of which agent was aware. 
 
 Cited in Marsh v. Wheeler, 77 Conn. 456, 107 Am. St. Rep. 40, 59 Atl. 410, 
 holding that notice to an agent of a fact outside the scope of his agency does not 
 affect his principal; Bernhard v. Rochester German Ins. Co. 79 Conn. 394, 65 Atl. 
 134, 8 A. & E. Ann. Cas. 298, on the knowledge of the agent as knowledge of the 
 defendant. 
 
 Cited in footnotes to Birmingham Trust & Sav. Co. v. Louisiana Nat. Bank, 
 20 L. R. A. 600, which holds notice to cashier notice to trust and savings com- 
 pany; Wittenbrock v. Parker, 24 L. R. A. 197, which holds notice to one attor- 
 ney notice to other members of law firm. 
 
 Cited in notes (2 L. R, A. 735) on notice to agent is notice to principal; 
 (2 L. R. A. 809) on ratification of acts of general or special agent; (11 L. R. 
 A. 344) on knowledge of agent of fire insurance company imputable to company: 
 (13 L.R.A. (N.S.) 831; 9 Am. St. Rep. 232) on imputing agent's knowledge to 
 company. 
 
 Distinguished in Ward v. Metropolitan L. Ins. Co. 66 Conn. 239, 50 Am. St. 
 Rep. 80, 33 Atl. 902, denying presumption of communication to company. 
 Waiver by receipt of premiums. 
 
 Approved in Germania L. Ins. Co. v. Koehler, 168 111. 306, 61 Am. St. Rep. 
 108, 48 N. E. 297, holding forfeiture by residence outside limits prescribed 
 waived; Northwestern Mut. L. Ins. Co. v. Freeman, 19 Tex. Civ. App. 635, 47 
 S. W. 1025, holding forfeiture incurred by engaging in prohibited occupations 
 waived; Marshall Farmers' Home F. Ins. Co. v. Liggett. 16 Ind. App. 603, 45 
 N. E. 1062, holding forfeiture by nonpayment of assessments waived by reten- 
 tion thereof after collection by agent aware of loss; Menard v. Society of St. 
 Jean Baptiste, 63 Conn. 175, 27 Atl. 1115, holding forfeiture by nonpayment of 
 death fee waived. 
 
 Cited in German Ins. Co. v. Gray, 43 Kan. 507, 8 L. R. A. 78, 19 Am. St. Rep. 
 150, 23 Pac. 637, holding retention of premiums by company after notice to 
 agent of existence and necessity for renewal of encumbrances, waiver of for- 
 feiture because of encumbrances; Farmer's Mut. F. Ins. Co. v. JackmaH, 35 Ind. 
 App. 16, 73 N. E. 730, holding that knowledge to agent is knowledge to com- 
 pany of change of ownership of premises, and the right of forfeiture is waived 
 by acceptance of premiums afterward. 
 
 Cited in note (9 L. R. A. 189) on forfeiture of benefit certificate. 
 
 Limited and distinguished in Ward v. Metropolitan L. Ins. Co. 66 Conn. 240, 
 50 Am. St. Rep. 80, 33 Atl. 902, holding breach of warranty not waived by 
 agent's continuing to collect premiums with knowledge of falsity. 
 Stipulation in policy against engraving; in liquor business. 
 
 Cited in footnote to Moerschbaecher v. Siipreme Council. R. L. 52 L. R. A. 
 281, which holds policy in benefit society forfeited, without formal notice, by 
 maintaining saloon in violation of by-law. 
 
139 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 567 
 
 Time covered by provision us to occupation of insured. 
 
 Cited in note (5 L.R.A.(X.S.) 285) on time covered by provision or representa- 
 tion with respect to habits or occupation of insured. 
 
 1 L. R. A. 567, Re COOK, 77 Cal. 220, 11 Am. St. Rep. 267, 17 Pac. 923, 19 
 
 Pac. 431. 
 Kiiinl accounting: in probnte court. 
 
 Cited in Re Alfstad, 27 Wash. 184, 67 Pac. 593, holding probate court could 
 not, upon final accounting of administratrix, determine her claim as partner of 
 deceased; Re Smith, 108 Cal. 122, 40 Pac. 1037, denying right of court to deduct 
 amount due estate by deceased executor, upon distribution, where accounting had 
 not been compelled. 
 Entry of judgment nnnc pro tnnc. 
 
 Cited in Young v. Young, 165 Mo. 632, 88 Am. St. Rep. 440, 65 S. W. 1016, 
 holding nunc pro tune decree of divorce after death of plaintiff void if no 
 record evidence as basis; Stewart v. Hall, 106 Ga. 175, 32 S. E. 14, holding judg- 
 ment nunc pro tune may be entered without notice; People v. Lenon, 79 Cal. 
 H32, 21 Pac. 967, authorizing entry of nunc pro tune criminal judgment without 
 presence of the prisoner; Holt v. Holt, 107 Cal. 261, 40 Pac. 390, authorizing 
 entry of judgment nunc pro tune in divorce action where clerk had failed to 
 render judgment as ordered; Mock v. Chancy, 36 Colo. 65, 87 Pac. 538, holding 
 that whenever a judgment has been pronounced, but has not been entered of 
 record, the court may upon proper proof, have judgment entered nunc pro tune. 
 as of date rendered; Confer's Estate, 34 Pa. Co. Ct. 185, 17 Pa. Dist. R. 743,. 
 holding that where a woman obtained a judgment of divorce but it was not to be 
 entered until she paid the costs, which she did after marrying the second time,, 
 the judgment then entered related back to time when rendered and the second 
 marriage was valid; Zahorka v. Geith, 129 Wis. 506, 109 N. W. 552, holding that 
 where a judgment of divorce is duly pronounced in divorce proceedings, but the 
 i lerk fails to enter it, it may be entered nunc pro tune so as to dissolve the mar- 
 riage as of the date of former judgment. 
 
 Cited in footnote to Hilker v. Kelley, 15 L. R. A. 622, which holds nunc pro 
 tune judgment may be entered on death of party after verdict. 
 Mode of entering: judgment. 
 
 Cited in note (28 L. R. A. 623) on what constitutes entry or record of judg- 
 ment, and how made. 
 Rendition and amendment of judgement. 
 
 Cited in Schurtz v. Romer, 81 Cal. 247, 22 Pac. 657, holding judgment rendered 
 when announced by court, within meaning of statute providing for appeals within 
 certain time from rendition of judgment; Crim v. Kessing, 89 Cal. 488. 23 Am. 
 St. Rep. 491, 26 Pac. 1074, holding that where findings of fact are waived entry 
 of decision in minutes of court constitutes "rendition of the judgment;" Baker 
 v. Brickell, 102 Cal. 623, 36 Pac. 950, holding effect of judgment cannot be 
 destroyed by failure of clerk to docket it and prepare and file judgment roll; 
 San Joaquin Land & Water Co. v. West, 99 Cal. 347. 33 Pac. 928, holding that 
 decision of the court in writing, filed with clerk, amounts to rendition of judg- 
 ment; Byrne v. Hoag. 116 Cal. 5, 47 Pac. 775, denying right to amend a year 
 and a half after rendition of judgment entered by clerk as directed by court; 
 First Nat. Bank v. Busy, 110 Cal. 76, 42 Pac. 476, denying right of trial court 
 to amend judgment entered in accordance with its findings and direction; O'Brien 
 v. O'Brien, 124 Cal. 429, 57 Pac. 225. on the time of the rendition of a judgment; 
 Re Wood, 137 Cal. 133, 69 Pac. 900, holding that the time within which persona 
 
1 L.R.A. 567] L. R. A. CASES AS AUTHORITIES. 140 
 
 divorced, may marry, begins to run from time judgment is rendered, regardless 
 of when entered by clerk; Otto v. Long, 144 Cal. 146, 77 Pac. 885, as to the time 
 of the rendition of a judgment; Baum v. Roper, 1 Cal. App. 437, 82 Pac. 390, 
 holding that the making and filing of findings of fact and conclusions of law 
 constitute the rendition of judgment; Darlington v. Butler, 3 Cal. App. 453, 86 
 Pac. 194, holding that a judgment of dismissal of the action became effective and 
 final when the court rendered its decision in open court and it was entered in the 
 minute book, and in judgment book, though not signed by judge; Brownell v. 
 Superior Ct. 157 Cal. 707, 109 Pac. 91, holding that decree was rendered on day 
 it was signed, filed and entered on minutes, though it was dated as of prior day 
 on which hearing was had and decision announced orally by court. 
 
 Cited in note (129 Am. St. Rep. 746) on necessity of entry of judgment. 
 
 Distinguished in Callanan v. Votruba, 104 Iowa, 673, 40 L.R.A. 376, 63 Am. St. 
 Rep. 538, 74 N. W. 13, holding that under the statute, a judgment does not be- 
 come a lien until entered upon the records, although made to be a lien from time 
 of rendition. 
 
 1 L. R. A. 572, FISCHER v. TRAVELERS INS. CO. 77 Cal. 246, 19 Pac. 425. 
 Defense of intentional killing or injury of insured. 
 
 Cited in De Graw v. National Acci. Soc. 51 Hun, 146, 4 N. Y. Supp. 912; 
 Johnson v. Travelers' Ins. Co. 15 Tex. Civ. App. 316, 39 S. W. 972; Orr v. 
 Travelers Ins. Co. 120 Ala. 651, 24 So. 997, holding accident insurance com- 
 pany not liable for intentional killing of insured; Continental Casualty Co. v. 
 Morris, 46 Tex. Civ. App. 399, 102 S. W. 773, holding that where policy provided 
 that in case of intentional injuries, only one tenth of the face of policy could be 
 recovered, the beneficiary could recover only one tenth for the intentional killing 
 by a third person. 
 
 Cited in footnote to Jarnagin v. Travelers' Protective Asso. 68 L.R.A. 499, 
 which holds that failure of police officers to protect insured while in their charge 
 from assaults by other persons will not take his killing out of provision against 
 recovery in case of death from intentional injuries. 
 
 Cited in notes (9 L. R. A. 686; 13 L. R. A. 265) on conditions in policy; 
 death from injuries intentionally inflicted; (6 L. R. A. 496) on life insurance; 
 death caused by crime; (30 L. R. A. 208) on what constitutes an accident within 
 the meaning of an accident insurance policy. 
 
 1 L. R. A. 572, SHARON v. TERRY, 13 Sawy. 387, 36 Fed. 337. 
 
 Report of action in state court to have marriage declared valid in Sharon v. 
 Sharon, 79 Cal. 633, 22 Pac. 26, 131. 
 Priority and exclnsiveness between courts of concurrent jurisdiction. 
 
 Approved in Vowinckel v. Clark, 162 Fed. 993. holding that as between two 
 courts having concurrent jurisdiction the one which first obtains jurisdiction of 
 the subject, has the exclusive jurisdiction. 
 
 Cited in Rodgers v. Pitt, 96 Fed. 670; Gamble v. San Diego, 79 Fed. 500, and 
 Ewing v. Mallison, 65 Kan. 488, 93 Am. St. Rep. 299. 70 Pac. 369, holding that of 
 two courts with concurrent jurisdiction the one first acquiring should retain 
 it; Foster v. Bank of Abingdon, 68 Fed. 726, and Hatch v. Bancroft-Thompson 
 Co. 67 Fed. 808, holding, state court jurisdiction having first attached, Federal 
 court powerless to afford relief; Starr v. Chicago, R. I. & P. R. Co. 110 Fed. 6, 
 holding Federal court first acquired jurisdiction and would retain it; Foley v. 
 Hartley, 72 Fed. 573, holding proceedings in Federal court suspended until 
 determination in state court which first obtained jurisdiction of all parties; 
 Central Trust Co. v. South Atlantic & O. R. Co. 57 Fed. 10, holding appoint- 
 
141 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 572 
 
 ment of state receiver would not be superseded by Federal receiver; Gilmour 
 v. Ewing, 50 Fed. C58, holding pendency of suit in state court with concurrent 
 jurisdiction no bar to suit in Federal court on same subject-matter; Powers v. 
 Blue Grass Bldg. & L. Asso. 86 Fed. 708, holding pendency of suit in state 
 court no bar to suit in Federal court between same parties where relief sought 
 is different; Clark v. Five Hundred and Five Thousand Feet of Lumber, 12 C. 
 C. A. 632, 24 U. S. App. 509, 65 Fed. 240, holding libel in admiralty court gives 
 prior jurisdiction to subsequent attachment in state court; Thorpe v. Sampson, 
 $4 Fed. 66, holding state court, having first acquired jurisdiction, should retain 
 it; Craig v. Hoge, 95 Va. 280, 28 S. E. 317, holding proceedings in one state court 
 would be enjoined where another court of the same state h"'l first acquired juris- 
 diction; Sharon v. Sharon, 79 Cal. 697, 22 Pac. 30, holding state court bound 
 to notice proceedings in Federal court affecting the same parties; Merritt v. 
 American Steel-Barge Co. 24 C. C. A. 534, 49 U. S. App. 85, 79 Fed. 232, holding 
 judicial comity did not extend to actions in personam; Guaranty Trust & S. D. 
 Co. v. Buddington, 27 Fla. 237, 9 So. 251, holding proceedings in Federal courts 
 must be shown, to oust state court of jurisdiction ; Hendley v. Clark, 8 App. D. C. 
 184, holding supreme court of District of Columbia could not by certiorari re- 
 move cause in which judgment by justice of peace had been rendered; Mankato v. 
 Barber Asphalt Paving Co. 73 C. C. A. 439, 142 Fed. 341, on the priority of judg- 
 ments of courts of concurrent jurisdiction; Higgins v. Eaton, 188 Fed. 958, hold- 
 ing that decree of probate court of testator's domicil controls distribution of 
 estate; Hartford F. Ins. Co. v. Ledford, 151 111. App. 417, holding that court of 
 equity will not oust court of law of its first acquired jurisdiction, unless there 
 are defenses unavailable at law; Ferriday v. Middlesex Bkg. Co. 118 La. 790, 
 43 So. 403, holding that a court who first comes into jurisdiction has the right to 
 decide all the issues of the case, as against all courts of concurrent jurisdiction; 
 Re Southwestern Bridge & Iron Co. 133 Fed. 571; Cochrane v. McDonald, 5 Cof. 
 Prob. Dec. Anno. 237, holding that the first court to acquire jurisdiction of the 
 parties and subject-matter, has exclusive jurisdiction; Cobe v. Ricketts, 111 Mo. 
 App. 110, 85 S. W. 131, holding that a court possessing jurisdiction of the sub- 
 ject-matter of an action pending before it, has the right to proceed to a final 
 determination of the controversy as against another tribunal of concurrent juris- 
 diction in which a similar action was instituted; Curlette v. Olds, 110 App. Div. 
 'ii)l. 3o X. Y. Civ. Proc. Rep. 311, 97 N. Y. Supp. 144, on the staying of action 
 to foreclose mortgage by prior action in Federal court to cancel same. 
 
 ( itod in footnote to Gay v. Brierfield Coal & I. Co. 16 L. R. A. 564, which holds 
 state court has jurisdiction of suit between different parties to have declared 
 fraudulent, mortgage foreclosed in Federal court. 
 
 Cited in notes (5 L. R. A. 223) on courts of concurrent jurisdiction; the 
 first to acquire will retain it; (42 L. R. A. 456) on pendency of actions in both 
 state and Federal courts where parties in one are parties or privies to the other; 
 (3 L. R. A. 191) on jurisdiction once acquired will be retained to afford complete 
 relief; (29 Am. St. Rep. 313) on conflicts of jurisdiction. 
 
 Distinguished in Re Hall & S. Co. 73 Fed. 530, holding judicial comity did 
 not apply to actions, one in equity and one at law with different parties; Sunset 
 Teleph. & Teleg. Co. v. Williams, 22 L.R.A. (N.S.) 376, 89 C. C. A. 281, 162 Fed. 
 303, holding that a court of equity will not entertain a suit to cancel an instru- 
 ment, where there is an adequate remedy at law. 
 Federal conrt jurisdiction. 
 
 Cited in McKee v. Chautauqua Assembly, 124 Fed. 811, holding that value of 
 rights to be protected is amount involved for jurisdictional purposes in suit to 
 restrain ultra vires action. 
 
1 L.R.A. 572] L. R. A. CASES AS AUTHORITIES. 14-2 
 
 Injunction by Federal of state court, and vice versa. 
 
 Cited in Frishman v. Insurance Cos. 41 Fed. 449, holding proceedings might 
 be enjoined in state court after case properly removed to Federal court; Abeel 
 v. Culberson, 56 Fed. 333, holding proceedings in state court in which state 
 is a party might be enjoined after removal to Federal court; State Trust Co. 
 v. Kansas City, P. & G. R. Co. 110 Fed. 12, holding state court enjoined from de- 
 termining the very questions submitted to Federal court in prior suit; Rodgers 
 v. Pitt, 96 Fed. 671, holding it duty of Federal court with prior jurisdiction to 
 restrain state court action; Kessler v. Continental Constr. & Improv. Co. 42 Fed. 
 260, refusing to enjoin state court from requiring creditors to present claims 
 within certain time, on dissolution of corporation; Moran v. Sturges, 154 U. S. 
 272, 38 L. ed. 986, 14 Sup. Ct. Rep. 1019, holding state court could not enjoin 
 proceeding in Federal court with exclusive maritime jurisdiction; Guardian Trust 
 Co. v. Kansas City Southern R. Co. 28 L.R.A.(N.S.) 625, 96 C. C. A. 285, 171 Fed. 
 49, holding that a court may enjoin the prosecution in other courts by the parties 
 to the suit before it, are subsequent actions, which will prevent its effectual de- 
 termination of the issues, and the rights over which it has acquired exclusive 
 jurisdiction; Central Vermont R. Co. v. Redmond, 189 Fed. 689, holding that 
 Federal court has no jurisdiction to enjoin enforcement of order of public service 
 commission, affirmed by supreme court of state; Griffith v. Vicksburg Water- 
 works Co. 88 Miss. 385, 40 So. 1011, 8 A. & E. Ann. Gas. 1130, holding that it is 
 improper for a state court to issue an injunction touching a subject-matter in- 
 volved in a suit pending in a Federal court of competent jurisdiction. 
 
 Distinguished in Oliver v. Parlin & O. Co. 45 C. C. A. 204, 105 Fed. 270, 
 holding injunction should not issue to restrain state court proceedings. 
 Applicability of 72O, U. S. Rev. Stat., U. S. Comp. Stat. 19O1, p. 581. 
 
 Cited in Texas & P. R. Co. v. Kuteman, 4 C. C. A. 507, 13 U. S. App. 99, 54 
 Fed. 551, holding injunction to restrain bringing of actions in state courts not 
 within 720, U. S. Rev. Stat.; Wadley v. Blount, 65 Fed. 676, Bowdoin College v. 
 Merritt, 59 Fed. 7, holding 720, U. S. Rev. Stat. did not apply to action first 
 begun in Federal court with concurrent jurisdiction; Lanning v. Osborne, 79 Fed. 
 W52. holding 720, U. S. Rev. Stat. does not apply to injunction restraining 
 multiplicity of suits; Iron Mountain R. Co. v. Memphis, 37 C. C. A. 429, 96 
 Fed. 131, holding 720, U. S. Rev. Stat. not applicable to injunction where 
 Federal jurisdiction first acquired; Julian v. Central Trust Co. 193 U. S. 112, 
 48 L. ed. 639, 24 Sup. Ct. Rep. 399, upholding power of Federal court to restrain 
 proceedings of state court defeating or impairing its jurisdiction ;Riverdale Cotton 
 Mills v. Alabama & G. Mfg. Co. 198 U. S. 196, 49 L. ed. 1015, 25 Sup. Ct. Rep. 
 629; Miller v. Rickey, 146 Fed. 587, on the inapplicability of statute to injunc- 
 tions for protection of prior jurisdiction; Southern R. Co. v. Simon, 153 Fed. 
 234, holding statute did not apply where injunction was necessary to preserve 
 rights of parties in suit properly before the court; Glucose Ref. Co. v. Giicago, 
 138 Fed. 212; Lang v. Choctaw, 0. & G. R. Co. 87 C. C. A. 307, 160 Fed. 360, 
 holding that where a Federal court is acting to enforce or protect its lawful 
 decrees or titles thereunder it may restrain all suits or proceedings in state courts, 
 which will impair or defeat its jurisdiction; Gay v. Hudson River Electric 
 Power Co. 182 Fed. 281, holding that Federal court, having possession of property 
 of corporation in receivership proceedings, may enjoin suit against corporation 
 in state court. 
 Res jndicata. 
 
 Cited in Ransom v. Pierre, 41 C. C. A. 592, 101 Fed. 672, holding judgment in 
 state court not res judicata. 
 
143 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 594 
 
 Cited in footnote to Weir v. Marley, 6 L. R. A. 672, which holds principle of 
 res judicata to apply to custody of child on habeas corpus. 
 
 Cited in notes (3 L. R. A. 142; 7 L. R. A. 578) on doctrine of res judicata; 
 (11 L. R. A. 156) on collusiveness of judgment on collateral attack. 
 Revivor. 
 
 Cited in Frankel v. Satterfield, 9 Houst. (Del.) 207, 19 Atl. 898, holding 
 scire facias to revive void judgment should not be awarded; Newcombe v. 
 Murray, 77 Fed. 493, holding representatives of party interested in property 
 must be made parties to revivor; King v. Davis, 137 Fed. 216, on the revivor of 
 actions and pleas thereto. 
 Survival of actions. 
 
 Cited in Borchert v. Borchert, 132 Wia. 598, 113 N. W. 35, holding that the right 
 to sue for rescission of a contract secured through fraud, and to recover property 
 obtained thereunder survives to the personal representative. 
 
 Cited in footnote to Perkins v. Stein, 20 L. R. A. 861, which holds negligent 
 act of driver in running over person not assault and battery within meaning 
 of statute providing for survival of certain actions. 
 Cancelation of agreements for fraud. 
 
 Cited in Ritterhoff v. Puget Sound Nat. Bank, 37 Wash. 85, 107 Am. St. Rep. 
 791, 79 Pac. 601, holding that a court of equity had jurisdiction to cancel a forged 
 note, although the same is past due, where one of the plaintiffs is an invalid, and 
 there is no speedy effective remedy at law. 
 
 1 L. R. A. 594, KULEXKAMP v. GROFF, 71 Mich. 675, 15 Am. St. Rep. 283, 
 
 40 N. W. 57. 
 Parol evidence as to written obligation. 
 
 Followed in Farmers' Bank v. Wickiffe, 131 Ky. 792, 116 S. W. 249, holding 
 that parol evidence was inadmissible to vary the terms of the contract of a 
 surety on notes. 
 
 Cited in Hitchcock v. Frackelton, 116 Mich. 491, 74 N. W. 720, holding indorser 
 could show, as between himself and maker of note, that he was surety and 
 holder had notice of fact; Remington v. Detroit Dental Mfg. Co. 101 Wis. 309, 
 77 X. W. 178, holding liability on note not affected by contemporaneous oral 
 agreement; Phelps v. Abbott, 114 Mich. 92, 72 N. W. 3, holding note on its face 
 absolute could not be shown by parol to be payable in full only on a contingency; 
 Gumz v. Giegling, 108 Mich. 296, 66 N. W. 48, holding indorser before note 
 uttered and before payee indorsed is joint maker, and cannot show lack of con- 
 sideration; Mason v. Gage, 119 Mich. 363, 78 N. W. 131, holding parol testi- 
 mony inadmissible to show bond of indemnity did not contain whole contract; 
 Shaw v. Stein, 79 Mich. 81, 44 N. _ W. 419, holding fraud in procuring 
 indorsement might be shown by parol; McCrath v. Myers, 126 Mich. 213, 85 
 N. W. 712, discussing, without deciding, as to admissibility of parol evidence 
 as to consideration for mortgage; Third Nat. Bank v. Reichert, 101 Mo. App. 
 254, 73 S. W. 893, holding that terms of promissory note cannot be varied by 
 contemporaneous oral agreement; Rumsey v. Fox, 158 Mich. 254, 122 X. W. 526. 
 holding that a contract of sale which is unambiguous, cannot be varied by parol 
 evidence of how the parties construed it; Milan Bank v. Richmond. -235 Mo. 539, 
 139 S. W. 352, holding that sureties on note cannot prove prior parol limitation 
 of liability. 
 
 Cited in notes (3 L. R. A. 761) on party cannot vary or contradict his con- 
 tract by parol; ( 1 L. R. A. 816) on commercial paper; admissibility of parol 
 evidence; (13 L. R. A. 54) on exception to general rule as to parol evidence 
 
1 L.R.A. 594] L. R. A. CASES AS AUTHORITIES. 144 
 
 affecting indorsement on note; (12 L. R, A. 846) on consideration of commercial 
 paper; (21 Am. St. Rep. 348) on admissibility of parol evidence to show real 
 agreement and relation of parties to note; (4 Eng. Rul. Gas. 207) on parol evi- 
 dence as to note or bill of exchange. 
 
 Distinguished in Aultman & T. Co. v. Gorham, 87 Mich. 236, 49 N. W. 310, 
 holding signing by surety after execution and before delivery of note would 
 hold him; Johnson v. Bratton, 112 Mich. 323, 70 N. W. 1021, holding parol 
 evidence admissible to show for what and for whom mortgage given; Gregory 
 v. Lake Linden, 130 Mich. 374, 90 N. W. 29, holding parol evidence admissible 
 to explain doubtful terms in written contract; Brown v. Smedl ,y, 136 Mich. 68, 
 98 N. W. 856, holding that as against the payee of a promissory note, parol evi- 
 dence is admissible to show a failure of consideration or a valid set-off: Acme 
 Food Co. v. Tousey, 148 Mich. 701, 112 N. W. 484, holding that parol evidence 
 is admissible to show that the contract sued upon is not the contract entered 
 into by the parties but that same has been altered by filling blanks. 
 Promise without consideration. 
 
 Cited in Taylor v. Weeks, 129 Mich. 235, 88 N. W. 466, holding note given 
 without consideration by widow in payment of claim against husband's estate 
 barred by statute; National Citizens' Bank v. Bowen, 109 Minn. 478, 124 N. W. 
 241, holding that where one of two or more joint makers signs a note as an 
 accommodation to the payee, and without consideration moving to him the payee 
 cannot recover thereon even though there was a consideration as to the others. 
 
 1 L. R. A. 596, CARMICHAEL v. CARMICHAEL, 72 Mich. 76, 16 Am. St. Rep. 
 
 528, 534, 40 N. W. 173. 
 Effect of oral agreement to dispose of property on deatb. 
 
 Cited in Whiton v. Whiton, 179 111. 53, 53 N. E. 722, Affirming 76 111. App. 
 564, holding will executed for valuable consideration binding on one making it; 
 Bird v. Jacobus, 113 Iowa, 199, 84 N. W. 1062, holding agreement to make 
 will in consideration of conveyance of property good; Whitney v. Hay, 15 App. 
 
 D. C. 184. holding promise to transfer land by will in consideration of support 
 enforceable; Wright v. Wright, 99 Mich. 177, 23 L. R. A. 198, 58 N. W. 54, 
 upholding parol contract disposing of property, on decease, to adopted son; 
 Allbright v. Hannah, 103 Iowa, 101, 72 N. W. 421, holding agreement that, on 
 death of owner, land should belong to one improving it, to be good; Bruce v. 
 Moon, 57 S. C. 73, 35 S. E. 415, holding effect of will made in consideration of 
 services cannot be annulled by conveying the property; Re Williams. 106 Mich. 
 503, 64 N. W. 490, holding that value of services to be compensated by will may 
 be recovered against estate if will not made; Cann v. Cann, 40 W. Va. 155, 20 S. 
 
 E. 910, holding son having performed services on agreement for testamentary 
 reward entitled to recover for them from father's estate; Bird v. Pope, 73 Mich. 
 492, 41 N. W. 514. holding that part performance of consideration of support 
 gave unrevocable rights in land; Decker v. Decker, 93 Iowa, 211, 61 N. W. 921, 
 holding that undelivered deed of land given in consideration of services which 
 have been partly performed cannot be cancelled: Barker v. Smith, 92 Mich. 343, 
 52 N. W. 723, holding parol evidence of declarations of party to correct will and 
 deed admissible; Keagle v. Pessell. 91 Mich. 623. 52 N. W. 58, holding mort- 
 gagee's revocation of will providing for distribution of proceeds of mortgage 
 did not alter manner of its payment: Sumner v. Crane, 155 Mass. 486. 15 L. R. 
 A. 448, 29 N. E. 1151, holding that probate of valid will should net be delayed 
 although revoking former will made to carry out a contract; Barrett v. Carden, 
 65 Vt. 435, 36 Am. St. Rep. 879, 26 Atl. 530, holding undertaking not to contest 
 will legal; Quinn v. Quinn, 5 S. D. 336, 49 Am. St. Rep. 880, 58 N. W. 808, 
 
14.3 L. R. A. ! -\SES AS AUTHORITIES. [1 L.R.A. 596 
 
 holding part performance of parol contract enough to take it out of statute of 
 frauds; Laird v. Vila, 93 Minn. 51, 106 Am. St. Rep. 420, 100 N. W. 656, holding 
 that an executed contract between husband and wife, to devise and bequeath 
 property to designated relatives is invalid as an agreement between husband and 
 wife in regard to the real estate but where such vice is not asserted she is bound 
 by the agreement. 
 
 Distinguished in Allen v. Bromberg, 163 Ala. 623. 50 So. 884, holding that 
 under the local statute of frauds an oral agreement between husband and wife 
 to make mutual wills disposing of real estate was void. 
 Statute of frauds. 
 
 Cited in Ruch v. Ruch, 159 Mich. 234, 124 N. W. 52, on an oral contract not to 
 dispose of real property but to permit same to pass to heirs, as within the statute 
 of frauds. 
 Enforcement of same. 
 
 Cited in Bower v. Daniel, 198 Mo. 321, 95 S. W. 347. holding that a court of 
 equity would enforce the provisions of the agreement against a husband who has 
 accepted a life estate under the wife's will, and is attempting to dispose of it 
 contrary to agreement; Best v. Gralapp, 69 Neb. 814, 96 N. W. 641, 5 A. & E. 
 Ann. Cas. 491; Teske v. Dittberner, 70 Neb. 548, 113 Am. St. Rep. 802, 98 N. W. 
 57, holding an agreement upon sufficient consideration to devise or bequeath 
 property is valid and enforceable, where provision cannot be restored to his 
 original situation or compensate him in damages; Chantland v. Sherman, 148 
 Iowa, 359, 125 N. W. 871, holding that upon repudiation of agreement, cause of 
 action may accrue for its enforcement by rescission or recovery of damages; 
 Spencer v. Spencer, 25 R. I. 241, 55 Atl. 637, holding that an agreement to dis- 
 pose of property in a particular way is enforceable in equity, if upon sufficient 
 consideration. 
 
 Distinguished in Tebbs v. Jarvis, 139 Iowa, 430, 116 N. W. 708, holding that 
 there can be no enforcement of agreement to devise, where the promise to devise 
 to certain persons is not established; Grindling v. Rehyl, 149 Mich. 644, 15 L.R.A. 
 (N.S.) 471, 113 N. W. 290, holding that specific performance of a parol contract 
 to devise land will not be granted, though partially performed, where the com- 
 plainant can be fully compensated in damages; German v. Camburn, 154 Mich. 
 261, 117 N. W. 641, holding that agreement was not enforceable where the wills 
 were not executed in consideration of each other, but the husband's was to 
 stand only in case wife survived him. 
 nevocability of mutual wills. 
 
 Cited in Baker v. Syfritt, 147 Iowa, 58, 125 N. W. 998; Frazier v. Patterson, 
 243 111. 85, 27 L.R.A.(N.S.) 516, 90 N. E. 216, 17 A. & E. Ann. Cas. 1003, 
 holding that mutual wills made in consideration of each other are irrevocable 
 after death of one party, if the other has taken advantage of the terms of the 
 other will; Prince v. Prince, 64 Wash. 561, 117 Pac. 255, holding that widow can- 
 not revoke mutual will, where she offered husband's will for probate and accepted 
 benefits of devises and bequests. 
 
 Cited in notes (27 L.R.A.(N.S.) 515) on revocability of mutual will; (136 Am. 
 St. Rep. 598) on multi-will considered as a contract. 
 Specific performance. 
 
 Cited in Sheehan v. Farwell, 135 Mich. 210, 97 N. W. 728, on the enforcement 
 of a decree of redemption. 
 
 L.R.A. Au. Vol. I. 10. 
 
1 L.K.A. 599] L. R. A. CASES AS AUTHORITIES. 146 
 
 1 L. R. A. 599, PARK v. DETROIT FREE PRESS CO. 72 Mich. 560, 16 Am. 
 
 St. Rep. 544, 40 N. W. 731. 
 Discrimination and due process of law in remedies. 
 
 Cited in Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 165, 41 L. ed. 672, 17 Sup. 
 Ct. Rep. 255, holding statute requiring payment of attorney's fee by railway com- 
 pany on adverse termination of action unconstitutional, as deprivation of prop- 
 erty right without due process of law, and as class legislation; Smith v. Lake 
 Shore & M. S. R. Co. 114 Mich. 485, 72 N. W. 328, majority holding mileage book 
 act not an unconstitutional invasion of property rights. 
 
 Cited in notes (14 L.R.A. 586) on unjust discrimination in violation of con- 
 stitutional right; (25 Am. St. Rep. 881) on 14th amendment as to special privi- 
 leges, burdens and restrictions. 
 Acts mitigating damages for retracted libel. 
 
 Followed in Hanson v. Krehbiel, 68 Kan. 676, 64 L.R.A. 793, 104 Am. St. Rep. 
 422, 75 Pac. 1041, holding that a statute unconstitutional which denied the right 
 in certain cases where retroaction was published, to recover for injury to reputa- 
 tion by libel. 
 
 Cited in McGee v. Baumgartner, 121 Mich. 291, 80 N. W. 22, holding act 
 prohibiting recovery in libel action for damage to reputation unconstitutional: 
 Hanson v. Krehbiel, 68 Kan. 676, 64 L.R.A. 793, 75 Pac. 1041, holding unconstitu- 
 tional act limiting liability for libel in certain cases; Post Pub. Co. v. Butler, 71 
 C. C. A. 309, 137 Fed. 727; Comer v. Age Herald Pub. Co. 151 Ala. C19, 13 L.R.A. 
 (N.S.) 527, 44 So. 673 (dissenting opinion) ; Ellis v. Brockton Pub. Co. 198 Ma.ss. 
 544, 126 Am. St. Rep. 454, 84 N. E. 1018, 15 A. & E. Ann. Gas. 83, on the con- 
 stitutionality of a statute providing to recovery of actual damages only where re- 
 action has been published; Osborn v. Leach, 135 N. C. 638, 66 L.R.A. 653, 47 S. 
 E. 811, holding an act taking away from a person the right to recover punitive 
 damages in case of libel is constitutional where it applies to all publications 
 equally. 
 
 Distinguished in Smedley v. Soule, 125 Mich. 199, 84 N. W. 63, holding act 
 requiring jury in libel action to separately state amounts awarded for injury 
 to feelings and for other damages constitutional ; Allen v. Pioneer Press Co. 
 40 Minn. 122, 3 L. R. A. 534, 12 Am. St. Rep. 711, 41 X. W. 936, holding act 
 limiting recovery in libel action against newspaper publishers to financial damage 
 not unconstitutional as class legislation, nor as depriving person of "remedy 
 in laws" guaranteed by state Constitution. 
 Libel. 
 
 Cited in Pfister v. Milwaukee Free Press Co. 139 Wis. 640, 121 X. W. 938, 
 holding that a false and defamatory publication concerning a private citizen is 
 not privileged merely because it relates to some public matter. 
 
 Cited in notes (9 L. R. A. 621) on libel denned; (3 L. R. A. 69) on libel copied 
 from other papers; (13 L.R.A. 98) on fair criticism of public men allowable; 
 (24 L.R.A.(N.S.) 617) on slander and libel in charging woman with unchastity; 
 (15 Am. St. Rep. 347, 364) on newspaper libel; (116 Am. St. Rep. 803, 806) on 
 what words are libelous per se. 
 \Vben publication of, privileged as part of judicial proceedings. 
 
 Cited in Metcalf v. Times Pub. Co. 20 R. I. 677, 78 Am. St. Rep. 900, 40 Atl. 
 $64, holding publication of unfair extracts from pleading not justified by fact 
 that it had been used in court proceeding; Arnold v. Savings Co. 76 Mo. App. 
 182, holding publication of police report not privileged; Stuart v. Press Pub. 
 Co. 83 App. Div. 476, 82 N. Y. Supp. 401, holding that where articles are 
 libelous per se, burden rests upon publisher to show that they were privileged; 
 
147 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 603 
 
 Brown v. Globe Printing Co. 213 Mo. 636, 127 Am. St. Rep. 627, 112 S. W. 462, 
 holding that a partial publication of a lawyer's brief in a quasi-judicial proceed- 
 ing is not privileged where only such parts of it are published as reflect upon his 
 character: Xixon v. Dispatch Printing Co. 101 Minn. 313, 12 L.R.A.(N.S-) 191, 
 112 N. W. 258, 11 A. & E. Ann. Cas. 161; Meriwether v. Publishers: George 
 Knapp & Co. 211 Mo. 219, 16 L.R.A.fN.S.) 960, 109 S. W. 750; Byers v. Meridian 
 Printing Co. 84 Ohio St. 419, 38 L.R.A.(N.S.) 918, 95 N. E. 917; American Pub. 
 Co. v. Gamble, 115 Tenn. 680, 90 S. W. 1005, holding that publication of mere 
 pleadings filed in court upon which there has been no judicial action is not privi- 
 leged; Ilsley v. Sentinel Co. 133 Wis. 24, 126 Am. St. Rep. 928, 113 N. W. 425, 
 holding that publication of pleadings and other preliminary papers to which the 
 attention of no judicial officer has been called and no judicial action invited 
 thereon is not privileged unless made so by statute. 
 
 Cited in footnotes to Nissen v. Cramer, 6 L. R. A. 780, which holds that 
 words spoken by manager of corporation during trial of action against it are 
 privileged; Billet v. Times-Democrat Pub. Co. 58 L. R. A. 62, which holds pub- 
 lication of police reports not privileged. 
 
 Cited in notes (3 L.R.A. 417) on matters charged in judicial pleadings not 
 actionable libel; (12 L.R.A.(X.S.) 188) on publication of legal papers in suit, 
 before hearing, as privileged. 
 Exemplary damages for libel. 
 
 Cited in Prussing v. Jackson, 85 111. App. 341, holding that statute making 
 notice to retract a condition precedent to recovery of punitive damages in action 
 for publication of libel in newspaper does not apply to writer of article; Osborn 
 v. Leach, 135 N. C. 638, 47 S. E. 811, holding that, upon defense of retraction, 
 burden is on publisher to show good faith and reasonable grounds to believe 
 libel true, to escape punitive damages. 
 
 Cited in footnote to Press Pub. Co. v. McDonald, 26 L. R. A. 531, which holds 
 that gross negligence of newspaper in publishing libel may justify exemplary 
 damages. 
 Rig-lit to inspect records of private suit. 
 
 Cited in Burton v. Reynolds, 110 Mich. 356, 68 N. W. 217, holding general 
 public has no absolute right to inspect records of private suit, before trial. 
 
 1 L. R. A. 603, FULMER v. WILLIAMS, 122 Pa. 191, 9 Am. St. Rep. 88, 15 Atl. 
 
 726. 
 Riparian rights. 
 
 Cited in Williams r. Fulmer, 151 Pa. 414. 31 W. N. C. 71, 31 Am. St. Rep. 
 767, 25 Atl. 103, holding, on later appeal, that riparian owner can recover com- 
 pensatory damages for depreciation of property by reason of diversion of navi- 
 gable river, with exemplary damages if malice be shown; Warren v. Westbrook 
 Mfg. Co. 86 Me. 38, 26 L. R. A. 288, 29 Atl. 927, holding riparian owners upon 
 stream divided by island entitled only to water naturally flowing in either chan- 
 nel ; Mills v. United States, 12 L. R. A. 679, 46 Fed. 744, holding right of riparian 
 proprietor to drain fields into navigable river subject to public right to raise level 
 of river in aid of navigation. 
 
 Cited in footnotes to Brooks v. Cedar Brook & S. C. River Improv. Co. 7 L. R. A. 
 460. which holds riparian owner not entitled to damages for washing away of 
 eeil incident to public use of stream; Helfenstein v. Reichenbach, 23 Pa. Co. Ct. 
 71, upholding right of person to drive teams along public road into water of 
 river to unload coal barges temporarily moored beyond low-water mark. 
 
 Cited in notes (7 L. R. A. 614) on riparian rights; (13 L. R. A. 828) on 
 equitable rights of riparian proprietors; (41 L. R. A. 757) on what will give 
 
1 L.E.A. 603] L. R. A. CASES AS AUTHORITIES. 148 
 
 right of action to riparian proprietors; (5 L. R. A. 62; 7 L. R. A. 722: 21 L. R. A. 
 t>2) on riparian rights in navigable waters; (12 L. R. A. 636) on qualified prop- 
 erty of littoral proprietors in water-front; (12 L. R. A.. 639) on rights of 
 riparian owners in Pennsylvania; (3 L. R. A. 809) on mill owners; facilities for 
 passage of logs; (70 L.R.A. 275) on use ef navigable stream; (19 Am. St. Rep. 
 229, 230) on rights of littoral and riparian owners in navigable waters; (22 Am. 
 St. Rep. 201 ) on title of riparian owners on land bounded on navigable waters ; 
 (25 Am. St. Rep. 254) on changing point of diversion of water; (27 Am. St. Rep, 
 56) on waters as boundary lines; (23 Eng. Rul. Cas. 189) on ownership of riparian 
 owner to thread of stream. 
 Navigable water*. 
 
 Cited in footnote to Heyward v. Farmers' Min. Co. 28 L. R. A. 42, which holds 
 as test of navigability of stream its navigable capacity, not usefulness for purpose 
 of commerce. 
 
 Cited in notes (5 L. R. A. 393; 28 L. R. A. 42) on navigable water courses; 
 (42 L. R. A. 313) on what waters are navigable; (42 L. R. A. 326) on waters 
 held navigable or not navigable on the facts; (4 L. R. A. 33) on judicial notice 
 as to navigable waters; (126 Am. St. Rep. 718, 719) on what waters are navigable. 
 Title to land under navigable waters. 
 
 Cited in People v. Silberwood, 110 Mich. 107, 32 L. R. A. 696, 67 N. W. 1087.. 
 holding state owns land under waters of Lake Erie, subject to riparian pro- 
 prietors' right of navigation; Palmer v. Farrell, 129 Pa. 169, 25 W. N. C. 30, 
 15 Am. St. Rep. 708, 18 Atl. 761, holding grant of land bounded by navigable 
 river extends to low-water mark; Freeland v. Pennsylvania R. Co. 197 Pa. 539, 
 58 L. R. A. 212, 80 Am. St. Rep. 850, 47 Atl. 745, holding riparian owner has 
 right to remove alluvial deposit between high-water and low-water marks of 
 navigable stream, subject to public rights of navigation, fishery, and improve- 
 ment; Fowler v. Wood, 73 Kan. 542, 6 L.R.A.(N.S.) 176, 117 Am. St. Rep. 534, 
 85 Pac. 763, holding that the title to the bed of a navigable river is in the state i 
 Edwards v. Woodruff, 25 Pa. Super. Ct. 581, holding that title to land under an 
 unnavigable stream extends to the middle of the stream, but in a navigable 
 stream only to the ordinary low water mark. 
 
 Cited in footnotes to Webb v. Demopolis, 21 L. R. A. 62, which holds title of 
 riparian proprietor to lands submerged by navigable stream to be determined by 
 state laws, though claimed under Federal grant; Hanford v. St. Paul & D. R. Co. 
 7 L. R. A. 722, which holds rights to submerged lands to point of navigability 
 pass, unless expressly severed, by conveyance of upland; St. Louis, I. M. & S. 
 R. Co. v. Ramsey, 8 L. R. A. 559, holding title to lands under navigable rivers, 
 below high-water mark, is in state. 
 
 Cited in notes (12 L. R. A. 677) on title to soil under navigable water-: 
 (8 L. R. A. 92) on right of littoral owner to soil to low-water mark subject to 
 control; (42 L. R. A. 174) on low-water mark as riparian boundary; (8 L. R. A. 
 559) on title to soil below high-tide mark: (16 L. R. A. 354) on ownership of 
 land below high-water mark; (42 L. R. A. 504) on effect of bounding grant on 
 river or tide water; (6 L. R. A. 388) on surveys and meander lines. 
 Measure of damages for injury to land. 
 
 Cited in Rabe v. Shoenberger Coal Co. 213 Pa. 256, 3 L.R.A. (N.S.) 783, 62 Atl. 
 854, 5 A. & E. Ann. Cas. 216; Weaver v. Berwind-White Coal Co. 216 Pa. 202, 
 65 Atl. 545. holding that when the injury to land is permanent the measure is 
 the difference in market value before and after the injury; Piedmont & G. C. Coal 
 Co. v. Kearney, 114 Md. 513, 79 Atl. 1013, holding thus, where surface fell in 
 owing to failure of mine owner to leave sufficient supports; Matteson v. New 
 
149 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 607 
 
 York C. & H. R. R. Co. 40 Pa. Super. Ct. 242, holding that the measure of dam- 
 ages for irreparable injury to land, is the depreciation in value of the property, 
 otherwise where remedial. 
 Common-law doctrines in United States. 
 
 Cited in note (22 L. R. A. 506) on limit of adoption of common law in United 
 States. 
 
 1 L. R. A. 607, FORD v. SCHOOL DISTRICT, 121 Pa. 543, 15 Atl. 812. 
 Doctrine of respondent superior. 
 
 Cited in notes (8 L.R.A. 464) on master's liability for negligence of servant; 
 (54 Am. St. Rep. 92) on acts of servant for which master is not responsible. 
 Authority of legislature over public schools. 
 
 Cited in State ex rel. Clark v. Haworth, 122 Ind. 466, 7 L. R. A. 242, 23 N. E. 
 D46, holding authority over public schools vested in legislature, which may pre- 
 scribe books to be used. 
 Liabilities of governmental agencies or employers for tort or negligence. 
 
 Cited in Maia v. Eastern State Hospital, 97 Va. 511, 47 L. R, A. 579, 34 S. E. 
 617, holding public charitable corporation, acting as agency of state, not liable 
 for officer's torts; Jasper County v. Allman, 142 Ind. 577, 39 L. R. A. 62, 4* 
 N. E. 206, holding that county, being governmental subdivision of state, is not 
 more liable than state for tort of officer, in absence of statute; Johnson County 
 v. Reinier, 18 Ind. App. 121, 47 N. E. 642, holding county not liable for defective 
 bridge, in absence of statute; Freel v. Crawfordsville, 142 Ind. 30, 37 L. R. A. 
 304, 41 N. E. 312, holding school corporation without funds which can be used 
 to pay damages not liable for ojficers negligence; Folk v. Milwaukee, 108 Wis. 
 363. 84 N. W. 420, holding city performing public duty of maintaining schools 
 not liable for death of pupil caused by defective sewer; Sproat v. Directors of 
 Poor, 145 Pa. G04, 29 W. N. C. 463, 23 Atl. 380, holding directors of almshouse 
 not liable for damages by dog left on premises by steward without their knowl- 
 edge or acquiescence; Lilly v. Scranton, 2 Lack. Legal News, 176, 18 Pa. Co. Ct. 
 434. holding municipal corporation not liable for acts of its policemen or firemen; 
 Peasley v. McKean County, Poor District, 26 Pa. Co. Ct. 431, holding poor district 
 not liable for negligence of its physician in treating inmate of poorhouse; Ernst 
 v. West Covington, 25 Ky. L. Rep. 1028, 63 L. R. A. 654, 76 S. W. 1089, holding 
 municipality furnishing lot and building for use of school district not liable for 
 injury to child falling from unguarded retaining wall ; Haggerty v. St. Louis, 
 K. & N. W. R. Co. 100 Mo. App. 443, 74 S. W. 456, holding railroad liable for 
 malpractice of physicians in treating member of employees' voluntary relief de- 
 partment; Harris v. Salem School District. 72 N. H. 426, 57 Atl. 332, holding 
 school district not liable for injuries to pupil due to improper means of trans- 
 porting to school; Brinker v. Northampton County, 5 Pa. Dist. R. 687, holding 
 county liable for per diem compensation of assessors registering school children 
 under compulsory educational law; James v. Wellston Twp. 18 Okla. 70, 13 
 L.R.A.(N.S.) 1238, 90 Pac. 100, 11 A. & E. Ann. Gas. 938, holding that in the 
 absence of statute, a township is not liable for injuries received because of de- 
 fective condition of highways; Hubbard v. Crawford County, 221 Pa. 439, 70 Atl. 
 805, holding that a county was not liable for injuries received by reason of unsafe 
 sidewalk leading to polling place; Ernst v. West Covington, 116 Ky. 854. 63 
 L.R.A. 652, 105 Am. St. Rep. 241, 76 S. W. 1089, 3 A. & E. Ann. Cas. 882, holding 
 that a school district was not liable for injuries sustained by reason of negligence 
 in the maintenance of school grounds; Rosenblit v. Philadelphia, 28 Pa. Super. 
 Ct. 594, holding that a school district was not liable to a boy injured by plaster 
 
1 L.R.A. 607] L. R. A. CASES AS AUTHORITIES. 150 
 
 falling from the ceiling of a school room, though the school board had previous 
 notice of the defect; Oswald v. Jefferson County, 57 Pittsb. L. J. 588. holding 
 county liable for injury to traveler from negligence of officers in repairing bridge. 
 
 Cited in footnote to A'Hern v. Iowa State Agri. Soc. 24 L. R. A. 655, which 
 holds that state agricultural society, being a state agency, is not liable for tort 
 of agent. 
 
 Cited in notes (37 L. R. A. 301) on liability of school corporation to action 
 for damages from negligence; (23 L. R, A. 201) on liability of charitable insti- 
 tution for negligence; (1 L. R. A. 844) on municipal corporations as agencies 
 of government; (4 L.R.A.(N.S-) 270) on liability of state or municipal eleemosy- 
 nary institution for personal tort of agent or servant; (25 L.R.A.(X.S.) 90) on 
 liability of municipality for tort in connection with buildings used by it. 
 
 Distinguished in Briegel v. Philadelphia, 135 Pa. 457, 26 W. N. C. 253, 20 
 Am. St. Rep. 885, 19 Atl. 1038, holding municipal corporation liable for nuisance 
 maintained upon its school property; Powers v. Philadelphia, 18 Pa. Super. Ct. 
 625, holding city liable for injury to boy, due to dangerous school walk. 
 School district as quasi corporations. 
 
 Cited in Yellets v. West Hempfield Twp. School District, 18 Lane. L. Rev. 246, 
 holding school district to be quasi municipal corporation; Erie v. School District, 
 17 Pa. Super. Ct. 37, and Pittsburg v. Sterrett Subdistrict School, 204 Pa. 645, 
 61 L. R. A. 189, 54 Atl. 463, holding property of school subdistricts exempt from 
 assessment for local improvements: Christiana Borough School Dist. v. Sadsbury 
 Twp. School Dist. 18 Pa. Dist. R. 359, 25 Lane. L. Rev. 333, holding that a school 
 district are quasi-corporations for purpose of administering the state educational 
 system; Hughesville Borough School Dist. v. Wolf Twp. School Dist. 40 Pa. Super. 
 Ct. 316, holding that a school-board is a quasi corporation; School Dist. v. Upper 
 Merion Twp. School Dist. 27 Montg. Co. L. Rep. 133, holding school district en- 
 titled to recover cost of tuition of nonresident pupils from school district from 
 which such pupils come. 
 
 1 L. R. A. 610, HOWARD v. HOWARD, 87 Ky. 616, 9 S. W. 411. 
 How Issne of mental nnsonndness tried in equity action. 
 
 Cited in Small v. Reeves, 104 Ky. 297, 46 S. W. 726, and Isle v. Cranby, 199 
 111. 48, 64 L. R. A. 526, 64 N. E. 1065, holding that an issue of mental unsound- 
 ness in an equity action is triable by jury if requested; Edwards v. Edwards, 14 
 Tex. Civ. App. 91, 36 S. W. 1080, holding in equity action by next friend, that 
 where alleged incompetent disputes want of mental capacity that issue is prop- 
 erly referred to jury first; Bowman v. Callahan, 137 Ky. 775, 127 S. W. 142, 
 holding same. 
 Transactions of incompetent persons. 
 
 Cited in footnotes to American Trust & Bkg. Co. v. Boone, 40 L. R. A. 250. 
 which holds bank without knowledge of insanity not protected in paying check 
 of person adjudged insane in another state ; Atwell v. Jenkins, 28 L. R. A. G94. 
 which holds third person cannot avoid contract of insane person for whom he 
 has advanced money thereon. 
 Suits by -weak minded person by next friend. 
 
 Cited in Lindly v. Lindly, 102 Tex. 141, 113 S. W. 750, holding that a court of 
 equity will permit a suit by the next friend of persons who, though not non 
 compos mentis, are so infirm as to be incapable of attending their own business 
 without being appointed legal guardian. 
 
 Cited in note (33 Am. St. Rep. 265) on who may sue for insane person. 
 

 151 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 613 
 
 Jurisdiction of courts relative to Incompetent persons. 
 
 Cited in notes (17 L. R. A. 297) on who may elect against will on behalf of 
 insane widow; (13 L. R. A. 758) on mental incapacity as justifying intervention 
 of court; (64 L. R. A. 521, 530) on right of insane person to institute proceedings 
 by next friend. 
 
 1 L. R. A. 613, ILLINOIS C. R. CO. v. DECATUR, 126 111. 92, 18 N. E. 315. 
 Special taxes and assessments not included in exemption from general 
 taxation. 
 
 Affirmed in 147 U. S. 190, 37 L. ed. 132, 13 Sup. Ct. Rep. 293, holding charter 
 exemption from taxation not exemption from special taxes on contiguous prop- 
 erty for local improvements. 
 
 Cited in Illinois C. R. Co. v. Mattoon, 141 111. 34, 30 N. E. 773, and Illinois 
 C. R. Co. v. Decatur, 154 111. 176, 38 N. E. 626, holding exemption in charter 
 "from taxation of every kind" does not include special tax for local improve- 
 ments; Winona & St. P. R. Co. v. Watertown, 1 S. D. 54, 44 N. W. 1072, holding 
 that charter exemption from "all taxation" does not exempt from assessment for 
 local improvement; Adams County v. Quincy, 130 111. 577, 6 L. R. A. 157, 22 
 N. E. 624, holding that exemption of public property from taxation does not 
 extend to special tax for paving abutting street; Farwell v. Des Moines Brick 
 Mfg. Co. 97 Iowa, 299, 35 L. R. A. 69, 66 N. W. 176, holding that exemption 
 from taxation for "any city purpose" does not Include special assessments for 
 paving. 
 
 Cited in notes (6 L. R. A. 155. 532) on exemption from general taxation not 
 apply to local assessments; (35 L. R. A. 34) on liability to local assessments 
 for benefits of property exempt from general taxation; (12 L. R. A. 852) on 
 exemption from taxes generally does not exempt church property from special 
 assessment; (2 L. R. A. 149) on property held for general use not taxable. 
 
 Distinguished in Re Mt. Vernon, 147 111. 383, 23 L. R. A. 810, 35 N. E. 533, 
 holding state property not subject to special taxation for local improvements. 
 Benefits as basis for special assessments. 
 
 Cited in Chicago & A. R. Co. v. Joliet, 153 111. 652, 39 N. E. 1077, and Chicago 
 & N. W. R. Co. v. Elmhurst, 165 111. 152, 46 N. E. 437, holding railway subject 
 to special taxation for local improvement, which proceeds on theory of benefits 
 to abutting property. 
 
 Cited in note (28 L. R. A. 252) on liability of railroad right of way to assess- 
 ments for local improvements. 
 
 Disapproved in effect in Chicago, M. & St. P. R. Co. v. Milwaukee, 89 Wis. 517, 
 28 L. R. A. 255, 62 N. W. 417, holding that no benefits accrue to railroad by 
 improvement of contiguous street which will sustain special assessment therefor; 
 Chicago. R. I. & P. R. Co. v. Ottumwa, 112 Iowa, 312, 51 L. R. A. 769, 83 N. W. 
 1074 (approved in dissenting opinion), holding railroad right of way not subject 
 to special assessment for street improvement, being taerely an easement which is 
 not benefited thereby. 
 Distinction between local assessment and general taxation. 
 
 Cited in Warren v. Warren, 148 111. 652, 36 N. E. 611. holding direction in 
 will to pay "annual taxes" does not authorize payment of special assessment ; 
 Tribbetts v. Huston, 171 111. 550, 63 Am. St. Rep. 275, 49 N. E. 711, Affirming 
 69 111. App. 342, holding special assessment for permanent improvement increas 
 ing value of remainder apportionable between life tenant and remainderman; 
 Milligan v. E. R. Darlington Lumber Co. 145 111 App. 521, on the distinction 
 between tax and special assessment. 
 
1 L.R.A. 613] L. R. A. CASES AS AUTHORITIES. 352 
 
 Cited in footnote to Denver v. Rnowles, 17 L. R. A. 135, which holds "tax" as 
 used in Constitution does not refer to local assessments. 
 
 Cited in note (23 L. R. A. 808) on distinction between assessment and taxation. 
 
 1 L. R. A. 616, COATS v. MERRICK THREAD CO. 36 Fed. 324. 
 Rig-lit of patentee to name as trade-mark after patent expired. 
 
 Cited in Chadwick v. Covell, 151 Mass. 195, 6 L. R. A. 842, footnote p. 839. 
 21 Am. St. Rep. 442, 23 N. E. 1068, holding donee of formulas and trade-marks 
 for medicines after death of manufacturer not entitled to enjoin subseqxient 
 vendee from using same; American Order of S. C. v. Merrill, 151 Mass. 562, 
 8 L. R. A. 321, 24 N. E. 918, holding corporation not entitled to enjoin another 
 organization from adopting a similar name; Dover Stamping Co. v. Fellows, 163 
 Mass. 196, 28 L. R. A. 450, 47 Am. St. Rep. 448, 40 N. E. 105, holding that 
 exclusive right to use of name given by patentee to patented article ceases with 
 expiration of patent; Rice-Stix Goods Co. v. J. A. Scriven Co. 91 C. C. A. 475, 
 165 Fed. 645, holding that upon the expiration of the patent, the plaintiffs right 
 to the exclusive use of descriptive words, ceased. 
 
 Cited in footnotes to Cigar Makers Protective Union No. 98 v. Conhaim, 3 L. 
 R. A. 125, which holds device adopted by association for use by any member 
 thereof not legal trade-mark; Symonds v. Jones, 8 L. R. A. 570, which holds 
 vendee of trade-mark not entitled to enjoin infringer where former has made 
 misleading use of right. 
 
 Cited in notes (16 L.R.A.(N.S.) 550; 1 Brit. Rul. Cas. 651) on right on expira- 
 tion of patent or copyright to use of name b which article has become known. 
 Rights in recipes for medicines. 
 
 Cited in footnote to Chadwick v. Covell, 6 L. R. A. 839, which denies right of 
 person to exclusive use of recipes made by himself for preparation of medicines. 
 
 1 L. R. A. 618, CARLL v. EMERY, 148 Mass. 32, 12 Am. St. Rp. 515. 18 X. E. 
 
 574. 
 Recovery of property fraudulently conveyed. 
 
 Cited in Pierce v. Le Monier, 172 Mass. 512, 53 N. E. 125, holding mortgage 
 by fraudulent grantee valid as between the parties; Peters Shoe Co. v. Arnold, 82 
 Mo. App. 8, upholding usurious mortgage as against creditor whose interest in 
 property arose after usury was purged; Badaracco v. Badaracco, 10 N. M. 767, 
 65 Pac. 153; McKenzie v. McKenzie, 29 N. S. 243, on the recovery of property 
 conveyed in fraud of creditors. 
 
 1 L. R. A. 620, COM. v. BROWN, 147 Mass. 585,. 9 Am. St. Rep. 736, 18 N. E. 5S7. 
 Disqualification of jnror, judue or like by interest. 
 
 Cited in Com. v. Fletcher, 157 Mass. 16, 31 N. E. 687, holding possible dis- 
 qualification of judge to try punishable offense committed in town where he is 
 resident and taxpayer removed by statute; Com. v. Woodward, 157 Mass. 518. 
 34 Am. St. Rep. 302, 32 N. E. 939, holding grand juror not disqualified by per- 
 sonal investigations leading to opinion, before investigation by jury; Jeffer- 
 sonian Pub. Co. v. Hilliard, 105 Ala. 580, 17 So. 112, holding that commis- 
 sioners, disqualified by interest, should act, in allowance of claims against county, 
 subject to review by appellate court; Jackson v. United States, 42 C. C. A. 458, 
 102 Fed. 478, holding sufficient an instruction by court to biased grand juror 
 not to take part in investigations of, or vote upon, accused's guilt; Pegues v. 
 Baker, 110 Ala. 254, 17 So. 943, holding disqualified a judge married to first 
 cousin of defendant; State ex rel. Seiders v. Bangor, 98 Me. 130, 56 Atl. 589, 
 holding commissioner to determine proportion of value of bridge to be paid by 
 
153 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 624 
 
 each of two cities not disqualified because taxpayer of one of them; Hibbea \ 
 Smith, 191 U. S. 324, 48 L. ed. 200, 24 Sup. Ct. 88, holding members of assessment 
 board not disqualified because they are owners of properly in district assessed, 
 and taxpayers; Wilson v. Wapello County, 129 Iowa, 81, 105 N. W. 363, 6 A. & 
 E. Ann. Cas. 958, holding that the fact that a juror is a taxpayer of the county, 
 will not disqualify him in an action against the county; Broadway Mfg. Co. v. 
 Leavenworth Terminal R. Co. 81 Kan. 618, 28 L.R.A.(N.S.) 159, 106 Pac. 1034, 
 holding that taxpayers in a municipality against which the action is brought are 
 disqualified to act as jurors, when others may be obtained; Fooshee v. State, 3 
 Okla. Grim. Rep. 673, 108 Pac. 554, holding that membership in law and order 
 league does not disqualify person for grand jury service. 
 
 Cited in footnote to Reed v. Peacock, 49 L. R. A. 423, which holds Odd Fellow 
 qualified to act as juror in action against member of another lodge. 
 
 Cited in note (28 L. R. A. 201) on qualification of grand jurors. 
 I r regularity In drawing panel. 
 
 Cited in Com. v. Krathofski, 171 Mass. 460, 50 N. E. 1040, holding irregular 
 drawing before name of disqualified juror returned to box does not invalidate the 
 jury; Sage v. State, 127 Ind. 18, 26 N. E. 667, overruling plea in abatement 
 based on failure of court to interrogate qualified grand juror as to qualifications; 
 State v. Cooley, 72 Minn. 481, 71 Am. St. Rep. 502, 75 N. W. 729, overruling the 
 objection to indictment that one member of grand jury, otherwise qualified, had 
 served on jury of prior year; State v. Brewster, 70 Vt. 350, 42 L. R. A. 448, 40 
 Atl. 1037, upholding indictment, though state's attorney was accompanied before 
 grand jury by stenographer; State v. Fidler, 23 R. I. 46, 49 Atl. 100, holding 
 jurors not disqualified by mere irregularity in drawing panel; Com. v. Jordan, 
 207 Mass. 269, 93 N. E. 809, holding that court is not deprived of jurisdiction 
 of indictment for murder by removal of qualified grand juror to another town in 
 county after being chosen as juror and before return of indictment; State v. 
 Cambron, 20 S. D. 284, 105 N. W. 241, holding an indictment valid though found 
 by grand jury, members of which were drawn irregularly, if they have the 
 requisite qualifications. 
 Sufficiency of warning of town meeting. 
 
 Cited in Auburn v. Union Water Power Co. 90 Me. 77, 37 Atl. 335, upholding 
 tax by town council, though record of meeting failed to show manner of sum- 
 moning members. 
 Concurrence of jurors. 
 
 Cited in note (28 L. R. A. 35) on number necessary to find indictment. 
 Sufficiency of indictment for forgery. 
 
 Cited in State v. Blodgett, 143 Iowa, 582, 121 N. W. 685, holding an indictment 
 for uttering a false or forged instrument is sufficient without alleging an inten- 
 tion to defraud any particular person. 
 
 1 L. R. A. 624, COM. v. BUCKLEY, 148 Mass. 27, 18 N. E. 577. 
 Sufficiency of evidence to sustain conviction for blackmailing. 
 
 Cited in People v. Wickes, 112 App. Div. 50, 98 N. Y. Supp. 163, sustaining 
 a conviction for blackmailing for sending letter threatening to accuse the recip- 
 ient of crime, with intent to extort or gain money. 
 
 Cited in note (116 Am. St. Rep. 470) on what constitutes extortion. 
 Trnth as affecting malice. 
 
 Cited in People v. Whittemore, 102 Mich. 525, 61 N. W. 13, holding evidence 
 of truth of accusation inadmissible on prosecution for maliciously threatening to 
 accuse another of perjury. 
 
1 L.R.A. 625] L. R. A. CASES AS AUTHORITIES. 154 
 
 1 L. R. A. 625, KNOWLTON v. NEW YORK & N. E. R. CO. 147 Mass. 606, 18 
 
 N. E. 580. 
 Independent action for additional damages. 
 
 Followed in Sullivan v. Baxter, 150 Mass. 261, 22 N. E. 895, holding special 
 damages accidentally omitted not recoverable in subsequent action. 
 
 Cited in Bliss v. New York C. & H. R. R. Co. ICO Mass. 455, 39 Am. St. Rep. 
 504, 36 N. E. 65, holding settlement for injury to clothing before action does not 
 preclude subsequent action for damage to person; Wheeler Sav. Bank v. Tracey, 
 141 Mo. 259, 64 Am. St. Rep. 505, 42 S. W. 946, holding mortgagee who inter- 
 pleaded only as to accounts in an attachment of both goods and accounts pre- 
 cluded from subsequent proceeding to enforce mortgage against goods; Poraeroy 
 v. Prescott, 106 Me. 410, 138 Am. St. Rep. 347, 76 Atl. 898, 21 Ann. Cas. 574, 
 holding that recovery for part of items of contract for services in decorating 
 auditorium is bar to action for remaining items; Morgan v. St. Louis & S. F. R. 
 Co. Ill Mo. App. 727, 86 S. W. 590, holding that person could bring action for 
 damage to trees, after an action for destruction of fence by same fire, where he 
 was totally ignorant of the former when the latter was brought. 
 
 Cited in note (14 Am. St. Rep. 251) on res judicata. 
 Duty of railroad company to guard against fires. 
 
 Cited in footnote to Norfolk & W. R. Co. v. Fritts, 68 L.R.A. 864, which sus- 
 tains liability for fire of railroad company unnecessarily running heavy freight 
 train up grade at double its scheduled speed in dry season and during heavy 
 wind. 
 
 Cited in notes (3 L. R. A. 639) on negligence of railroad company in setting 
 fires; (11 L. R. A. 508) on liability for fire communicated by defective engine 
 appliances. 
 
 1 L. R. A. 628, DIXSON v. GOURDIN, 29 S. C. 343, 7 S. E. 510. 
 Statute of limitations; effect as terminating right of action. 
 
 Followed in Fleming v. Fleming, 33 S. C. 508, 26 Am. St. Rep. 694, 12 S. E. 
 257, holding action on note barred in spite of payments within period of limita- 
 tion, where not set up as new promises. 
 
 Approved in Jacobs v. Gilreath, 41 S. C. 148, 19 S. E. 310, permitting amend- 
 ment of action on barred note, to allege new promises at time of partial payments 
 thereon. 
 
 Cited in note (18 Am. St. Rep. 887) on presumption of payment from lapse of 
 time. 
 
 1 L. R. A. 632, ANDERSON y. O'DONNELL, 29 S. C. 355, 13 Am. St. Rep. 728, 
 
 7 S. E. 523. 
 Constitutionality of trial without jury. 
 
 Followed in Anderson v. Fowler, 48 S. C. 17, 25 S. E. 900, holding trial by 
 mayor without jury valid. 
 
 Approved in Barnard & L. Mfg. Co. v. Monett Mill. Co. 79 Mo. App. 156, 
 holding determination by circuit court of liability of garnishee valid without 
 jury; Liberman v. State, 26 Neb. 466, 18 Am. St. Rep. 791, 42 N. W. 419, holding 
 trial by police judge for violation of municipal ordinance valid without jury; 
 Christensen v. Hollingsworth, 6 Idaho, 93, 90 Am. St. Rep. 256, 53 Pac. 211, hold- 
 ing jury trial not guaranteed by Constitution in equitable actions. 
 
 Cited in footnotes to Hall v. Armstrong, 20 L. R. A. 366, which holds trial 
 of action on book account without jury valid by immemorial practice; Re Kinsel, 
 56 L. R. A. 475, which holds trial in police court for violation of ordinance against 
 keeping bawdy house valid without jury. 
 
i3~' L. R. A. CASES AS AUTHORITIES. [1 L.R.A d37 
 
 Cited in notes (15 L. R. A. 287) on right to jury trial of claim for damages in 
 equity; (15 L. R. A. 614) on constitutional right to jury in assessment of dam- 
 ages on default; (16 L. R. A. 358) on statutes allowing plea of guilty in crim- 
 inal cases. 
 Ex post facto laws. 
 
 Cited in footnotes to French v. Deane, 24 L. R. A. 387, which holds statute 
 allowing punitive damages ex post facto as to existing actions; People v. Hayes, 
 23 L. R. A. 830, which holds amendment striking out provision for minimum 
 penalty does not render statute ex post facto; People ex rel. Chandler v. McDon- 
 ald, 29 L. R. A. 834. which upholds statute abrogating provision for change of 
 magistrate upon affidavit of his prejudice; State v. Kyle, 56 L. R. A. 115, which 
 holds statute authorizing prosecution of crimes by information, retrospective but 
 not ex post facto; Ex parte Larkins, 11 L. R. A. 418. which upholds law continu- 
 ing in force penal law when crime was committed. 
 
 Cited in notes (3 L.R.A. 182) on what are ex post facto laws; (31 Am. St. Rep. 
 104; 37 Am. St. Rep. 595) on ex post facto laws. 
 Offenses agrainst both state and municipal regulations. 
 
 Approved in Florence v. Brown, 49 S. C. 338, 26 S. E. 880, 27 S. E. 273, holding 
 state dispensary law does not preclude enforcement of municipal ordinances on 
 same subject; Greenville v. Kemmis, 58 S. C. 434, 50 L. R. A. 728, 36 S. E. 1-2.1. 
 holding municipal ordinance penalizing gaming valid, though not criminal by 
 state law; Abbeville v. Leopard, 61 S. C. 106, 39 S. E. 248, upholding ordinance 
 against carrying pistol, which offense is punishable by state law. 
 
 Cited in McCormick v. Calhoun, 30 S. C. 97, 8 S. E. 539, holding provision in 
 charter for punishment under state law for sale of liquor does not prevent im- 
 position of penalties by town council for violation of ordinances upon same 
 subject; Taylor v. Sandersville, 118 Ga. 64, 44 S. E. 845, holding that a municipal 
 ordinance is not void because it attempts to punish that which is already punish- 
 able under state law; State v. Sanders, 68 S. C. 195, 47 S. E. 55, holding that a 
 party may be convicted of the same offense by both a municipal court and a court 
 of general sessions; Anderson v. Seligman, 85 S. C. 18, 67 S. E. 13, holding that 
 mayor may try person charged with gambling under ordinance, though statute 
 prescribes that gambler shall be tried in court of general sessions. 
 
 Cited in notes (1 L.R.A.(X.S.) 384) on power of municipality to legislate on 
 subjects covered by state laws: (17 L.R.A. (N.S.) 65) on power of municipality 
 to punish act also an offense under state law; (31 L.R.A. (N.S.) 701, 707) on right 
 to convict for state and municipal offenses growing out of same facts; (92 Am. 
 St. Rep. 100, 102) on identity of state and municipal offenses on plea of former 
 jeopardy. 
 Right of appeal front mnnicipal court. 
 
 Cited in Anderson v. Fowler, 48 S. C. 14, 25 S. E. 900, holding right of appeal 
 to circuit court from trial by mayor to exist. 
 
 Distinguished in Ex parte Brown, 42 S. C. 188, 20 S. E. 56, holding appeal will 
 lie to circuit court from conviction in recorder's court. 
 Trial de novo on appeal to city council. 
 
 Followed in Anderson v. Fowler. 48 S. C. 20, 25 S. E. 900, holding it unneces- 
 sary to bring up evidence and rulings thereon in trial before mayor. 
 
 1 L. R. A. 637. CANNON v. LOMAX, 29 S. C. 369, 13 Am. St. Rep. 739, 7 
 
 S. E. 529. 
 Kflfeet of life estate on partition. 
 
 Cited in Chavis v. Chnvis. 57 S. C. 178. 35 S- E. 507, holding life estate might 
 
1 L.R.A. 637] L. R. A. CASES AS AUTHORITIES. 156 
 
 postpone partition; McMullen v. Blecker, 64 W. Va. 91, 131 Am. St. Rep. 894, 
 60 S. E. 1093. on the right of a purchaser of the interest of some of the heirs 
 of coal in place leased by their ancestor as entitled to partition ; Henderson v. 
 Henderson, 136 Iowa, 569, 114 X. W. 178, holding that heirs could not maintain 
 partition against the widow where she was a tenant for life, and the heirs had 
 conveyed their interests to her; Windham v. Howell, 68 S. C. 482, 47 S. E. 715. 
 holding that tenants in common for life, may have partition, unless prevented by 
 incumbrance by grantor. 
 
 1 L. R. A. 639, PAXTON v. RICH, 85 Va. 378, 7 S. E. 531. 
 How liens barred. 
 
 Cited in Jameson v. Rixey, 94 Va. 344, 64 Am. St. Rep. 726, 26 S. E. 861, 
 holding lien for owelty of partition exists until payment presumed ; Tunstall v. 
 Withers, 86 Va. 896, 11 S. E. 565, holding that only lapse of time from which 
 presumption of payment arises will cut off vendor's lien, even though he has 
 parted with legal title; Gibson v. Green, 89 Va. 527, 37 Am. St. Rep. 888, 16 S. E. 
 661, holding trust deed to secure bond not affected by rendition of judgment on 
 the bond. 
 
 Cited in notes (21 L.R.A. 553) on effect of statutory bar of principal debt on 
 right to foreclose mortgage or deed of trust securing same; (95 Am. St. Rep. 6fi3) 
 on effect of bar of statute of limitations on vendor's lien; (39 L.R.A. ' X,:v > 
 1176) on effect of barring of action for purchase money upon right to enforce 
 vendor's lien. 
 Effect of decree on pending actions. 
 
 Cited in Robinson v. Allen, 85 Va. 724, 8 S. E. 835, holding that pendency of 
 suit for settlement of estate, without decree for accounting, does not suspend 
 creditor's suit where objects not same; Southall v. Farish, 85 Va. 409, 1 L. R. A. 
 644, 7 S. E. 534, asserting that where all parties are before court, decree will be 
 made against party ultimately liable on judgments; Witz v. Mullin, 90 Va. 807. 
 20 S. E. 783, holding that equity will not take cognizance of a claim for damages 
 from breach of contract, in action to administer trust deed. 
 Surety's equity in estate of deceased debtor. 
 
 Cited in note (117 Am. St. Rep. 39) on right of surety to compel payment 
 out of principal's estate. 
 
 Distinguished in Bingham v. Mears, 4 N. D. 451, 27 L. R. A. 263. 61 N. W. 808, 
 holding sureties on undertaking on appeal liable notwithstanding failure of plain- 
 tiff to resort in first instance to collateral held by him. 
 
 1 L. R, A. 641, SOUTHALL v. FARISH, 85 Va. 403, 7 S. E. 534. 
 Subrogation of surety on payment. 
 
 Cited in Price v. Horton, 4 Tex. Civ. App. 527, 23 S. W. 501, holding that 
 surety, upon discharging obligation, can recover from principal only amount 
 paid; Opp v. Ward, 125 Ind. 243, 21 Am. St. Rep. 220, 24 X. E. 974, holding 
 surety on appeal bond from judgment for rent liable to guarantor of rent paying 
 judgment. 
 
 Annotation cited in State ex rel. Moore v. Perkins, 114 La, 306, 38 So. 196, 
 holding that the surety who pays the amount called for in the bond, does not 
 become subrogated to the right of the creditor to the prejudice of balance due 
 the latter. 
 
 Cited in footnote to Everson v. McMullen, 4 L. R. A. 119, which holds claimant 
 of dower should contribute to payment of mortgage debt discharged by purchaser 
 of equity not bound to its payment. 
 
157 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 645 
 
 Cited in notes (9 L.R.A. 227) on subrogation of surety on payment of claim; 
 (68 L.R.A. 514) on extinction of judgments against principals by sureties' pay- 
 ment; (21 Eng. Rul. Cas. 615) on subrogation of surety paying debt. 
 Primary liability of surety. 
 
 Cited in Manson v. Rawling, 112 Va. 388, 71 S. E. 564, holding that creditor 
 can resort to surety before exhausting remedies against principal. 
 Necessity of pleading: fraud. 
 
 Cited in Millhiser v. McKinley, 98 Va. 213, 35 S. E. 446; Alsop v. Catlett, 97 
 Va. 370, 34 S. E. 93; Virginia F. & M. Ins. Co. v. Cottrell, 85 Va. 864, 17 Am. 
 St. Rep. 108, 9 S. E. 132, holding evidence of fraud admissible only when 
 pleaded; United States v. Barber Lumber Co. 172 Fed. 950, holding that in an 
 action to set aside a conveyance on the ground of fraud, the bill must show 
 specifically and in detail in what the fraud consists, and how effected; McClinton 
 v. Chapin, 54 Fla. 518, 45 So. 35, 14 A. & E. Ann. Cas. 365, holding that an 
 allegation of fraud in general terms without stating facts constituting it is 
 insufficient; Virginia Pass. & Power Co. v. Fisher, 104 Va. 132, 51 S. E. 198, 
 holding it necessary that the facts out of which the fraud arises be alleged as 
 well as proved in order to justify relief on ground of fraud. 
 
 Cited in footnote to Haughn v. State, 59 L.R.A. 789, which requires facts con- 
 stituting fraud and duress to be set out in indictment for "bunco steering." 
 
 1 L. R. A. 645, CAMPBELL PRINTING PRESS CO. v. THORP, 36 Fed. 414. 
 Satisfactory performance of agreement. 
 
 Cited in Electric Lighting Co. v. Elder Bros. 115 Ala. 152, 21 So. 983, holding 
 that dissatisfaction with well had reference only to its completion according to 
 agreement; Gwynne v. Hitchner, 66 N. J. L. 101, 48 Atl. 571, holding employer 
 could determine whether employee's work was satisfactory; Sax v. Detroit, G. H. 
 & M. R. Co. 125 Mich. 256, 84 Am. St.. Rep. 572, 84 N. W. 314, holding brake- 
 man, upon dismissal, could not recover for services under contract to work per- 
 manently if services satisfactory ; Blaine v. Publishers. George Knapp & Co. 140 
 Mo. 251, 41 S. W. 787, holding that party could not recover increased compensa- 
 tion for services under contract in which increase depended solely on employer; 
 Mullally v. Greenwood, 127 Mo. 147, 48 Am. St. Rep. 613, 29 S. W. 1001, denying 
 right of one agreeing to pay commissions for procuring "satisfactory lease" of 
 property to arbitrarily refuse to accept lease negotiated; American Electric 
 Constr. Co. v. Consumers' Gas Co. 47 Fed. 45, 30 W. N. C. 225, holding verbal 
 contemporaneous agreement to give satisfactory bond inadmissible to vary writ- 
 ten agreement to construct electric light plant; Watkins v. Napier, 44 Tex. Civ. 
 App. 435, 98 S. W. 904, on the right of the employer to terminate contract for 
 hire, because of dissatisfaction with work, under clause providing therefor. 
 
 Cited in note (12 L.R.A.(N.S.) 404, 407, 409, 412) on termination of contracts 
 of employment which permit rescission by dissatisfied employer. 
 
 Distinguished in Young Bros.- Mach. Co. v. Young, 111 Mich. 121, 69 N. W. 
 152, holding party having had benefit of part performance of contract cannot 
 make full performance condition precedent to liability. 
 Sale upon approval. 
 
 Cited in Buckley v. Meidroth, 93 111. App. 462, holding that purchaser on ac- 
 ceptance and approval, title remaining in seller, need not pay if article unsat- 
 isfactory; Re Geo-ge M. Hill Co. 59 C. C. A. 356, 123 Fed. 868, holding title of 
 seller of machine on approval not devested where buyer continued to refuse ac- 
 ceptance, and his bankruptcy intervened; McCormick v. Finch, 100 Mo. App. 646, 
 75 S. W. 373, holding sale of corn binder on approval defeated where not satis- 
 factory to buyer, who offered to return it; Haney-Campbell Co. v. Preston Cream- 
 
1 L.K.A. 645] L. R. A. CASES AS AUTHORITIES. 158 
 
 ry Asso. 119 Iowa, 193, 93 N. W. 297, holding that, in sale on approval, fair 
 and honest objection is all that is required of buyer to defeat sale; Thurman v. 
 Omaha, 64 Neb. 493, 90 N. W. 253, holding, where purchase is subject to attor- 
 ney's opinion as to title, merits of honest opinion thereon not assailable; Ron- 
 dinella v. Southern R. Co. 33 App. D. C. 79; Haney-Campbell Co. v. Preston 
 Creamery Asso. 119 Iowa, 393. 93 N. W. 297, holding that an agreement in 
 contract of sale, whereby the purchaser is to be satisfied before the machine is 
 accepted, is valid; Livesley v. Johnston, 45 Or. 45, 65 L.R.A. 787, 106 Am. St. 
 Rep. 647, 76 Pac. 946, holding a contract of sale giving one of the parties the 
 right to determine whether the property sold, is valid and binding upon both. 
 
 Cited in notes (17 L. R. A. 209) on right of purchaser to reject and return 
 article as unsatisfactory; (12 L. R. A. 399) on effect of acceptance of goods under 
 contract of sale; (6 L. R. A. 789) on sales and contracts to manufacture, dis- 
 tinguished. 
 Recoupment of damages against price. 
 
 Cited in Mulcahy v. Dieudonne, 103 Minn. 358, 115 N. W. 636, holding that one 
 to whom goods are sold on approval cannot retain them and recover damages m 
 an action for the purchasa price. 
 Implied warranty in sales. 
 
 Cited in notes (17 L. R. A. 211) on implied warranty of fitness for purpose 
 intended in contracts of purchase and sale; (17 L. R. A. 208) on contract, promise 
 to give full satisfaction; subject to judgment of promisee in contracts of pur- 
 chase and sale; (6 L. R. A. 375) on implied warranty; (6 L. R. A. 392) on im- 
 plied warranty in sale by manufacturer. 
 
 1 L. R. A. 648, HOPPS v. SAVAGE, 69 Md. 513, 16 Atl. 133. 
 Indorsement of negotiable instrument. 
 
 Cited in footnote to Witty v. Michigan Mut. L. Ins. Co. 8 L. R. A. 365, which 
 holds note with blanks in body negotiable. 
 
 Cited in notes (1 L. R. A. 712) on effect of blank indorsement; (7 L. R. A. 
 209) on acceptance of bill of exchange or draft. 
 
 1 L. R. A. 650, WEYAND v. ATCHISON, T. & S. F. R. CO. 75 'Iowa, 573, 9 
 
 Am. St. Rep. 504. 39 N. W. 899. 
 Liability of carrier for delivery to wrong person. 
 
 Cited in Ratzer v. Burlington, C. R. & X. R. Co. 64 Minn. 248, 58 Am. St. Rep. 
 530, 66 N. W. 988, holding railway liable to holder of bill of lading for delivery 
 of goods to shipper; Union P. R. Co. v. Johnson, 45 Neb. 65, 50 Am. St. Rep. 
 540, 63 N. W. 144, holding carrier liable to holder of bill of lading for delivery 
 at point intermediate that of consignment; Gates v. Chicago, B. & Q. R. Co. 42 
 Neb. 388, 60 N. W. 583, holding carrier not liable for delivery upon order of 
 consignee; Clegg v. Southern R. Co. 135 N. C. 155, 65 L.R.A. 721, 47 S. E. 667 
 (dissenting opinion), on liability of carrier 'for wrongful delivery of goods; 
 Sword v. Young, 89 Tenn. 130, 14 S. W. 604. holding carrier liable to consignor 
 for value of goods negligently delivered to fraudulent purchaser. 
 
 Cited in footnote to Illinois C. R. Co. v. Carter, 36 L. R. A. 527, holding carrier 
 not liable for misdelivery by agent of connecting line after delivery at destination. 
 
 Cited in notes (38 L.R.A. 303) on indorsement being required on bill of lading 
 when delivery made; (24 Am. St. Rep. 816) on conversion by carrier by delivery 
 of freight to person not entitled thereto. 
 To person presenting bill of Inding or skipping receipt. 
 
 Cited in Adrian Knitting Co. v. Wabash R. Co. 145 Mich. 326, 108 N. W. 706. 
 

 159 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 655 
 
 holding that a carrier was liable for misdelivery of goods to person obtaining 
 shipping receipt fraudulently, where the custom to delivery upon presentation of 
 the receipt was not known to consignor; Florence & C. C. R. Co. v. Jensen, 48 
 Colo. 33, 108 Pac. 974, holding carrier liable to consignor for delivery of freight 
 to stranger on surrender of unindorsed bill of lading. 
 Bill of lading: as instrument of rig-lit or title. 
 
 Cited in Anchor Mill Co. v. Burlington, C. R. & N. R. Co. 102 Iowa, 266, 71 
 N. W. 255, holding that purchaser of load of wheat prior to assignment of bill 
 of lading acquired title as against assignee; First Nat. Bank v. Mt. Pleasant Mill. 
 Co. 103 Iowa, 520, 72 N. W. 689, holding that purchaser of draft with assign- 
 ment of bill of lading acquires superior title to subsequent attaching creditor; 
 ScharfT v. Meyer, 133 Mo. 448, 54 Am. St. Rep. 672, 34 S. W. 858, holding that 
 assignees of bill of lading had title to goods attached in transit as consignor's; 
 W. & A. McArthur Co. v. Old Second Xat. Bank, 122 Mich. 226, 81 N. W. 92, 
 holding that draft with bill of lading attached consigning goods to shipper shows 
 there was no intention to extend credit; Schlichting v. Chicago, R. I. & P. R. Co. 
 121 Io\va, 505, 96 X. W. 959, holding carrier justified in refusing to deliver goods 
 without production of bill of lading; Clegg v. Southern R. Co. 135 N. C. 155, 65 
 L. R. A. 721, 47 S. E. 667 (dissenting opinion), majority denying carrier's right 
 to avoid payment of damages for wrongful refusal to deliver goods, by showing 
 owner did not have bill of lading. 
 Prior adjudication as bar. 
 
 Cited in Lemon v. Sigourney Sav. Bank, 131 Iowa. 86, 108 N. W. 104, holding 
 a finding in an action against a bank for the amount of a deposit, that the sum 
 had been paid in notes of third party payable to depositor, is not a bar to an 
 action to collect proceeds of these notes collected by it. 
 Effect of general custom as to freight. 
 
 Cited in footnote to Pennsylvania R. Co. v. Naive, 64 L.R.A. 443, which holds 
 carrier not negligent in failing to notify consignee of arrival of perishable goods 
 on legal holiday on which by general custom of locality all business is suspended. 
 
 1 L. R. A. 653, BRANDT v. ALLEN, 76 Iowa, 50, 40 N. W. 82. 
 Summary proceedings to obtain assets. 
 
 Cited in Miles v. New South Bldg. & L. Asso. 95 Fed. 921, holding that sum- 
 mary proceeding by receiver of corporation for order to put him in possession 
 of securities not against due process. 
 
 1 L. R. A. 655, OSGOOD v. BAUDER, 75 Iowa, 550, 39 N. W. 887. 
 Place of contract. 
 
 Cited in Hart v. Livermore Foundry & Mach. Co. 72 Miss. 829, 17 So. 769, hold- 
 ing contract entered into in one state presumed to be entered into with reference 
 to law of place of performance, and referring particularly to annotation in 1 
 L. R. A. C).15. 
 
 Cited in footnote to Robinson v. Queen, 3 L. R. A. 214, which holds married 
 woman's note, valid in state where made and payable, enforceable in another state 
 in which it would have been void. 
 
 Cited in notes (3 L. R. A. 524; 8 L. R. A. 170) on contract governed by 
 lex loci contractus; (13 L.R.A. 462) on when lex loci governs contract; (55 Am. 
 St. Rep. 49) on place of contract. 
 Wagering contract. 
 
 Reaffirmed on later appeal in 82 Iowa, 174, 47 N. W. 1001, holding option to 
 buy specified amount of coal on terms allowed for coal actually bought, void. 
 
1 L.R.A. 655] L. R. A. CASES AS AUTHORITIES. 160 
 
 Cited in Schneider v. Turner. 130 111. 41, 6 L. R. A. 1G7, 22 X. E. 497, holding 
 agreement for refusal of privilege to purchase shares a wagering contract under 
 statute; Peoples' Sav. Bank v. Gifford, 108 Iowa, 279, 79 N. W. 63, holding note 
 given for gambling contract in options void; Press v. Duncan, 100 Iowa, 356, 
 9 N. W. 543, holding that decision of court that note given for gambling con- 
 tract was void should not be disturbed; Hoffmann v. Farmers' Co-op. Shipping 
 Asso. 78 Kan. 568, 97 Pac. 440, on what constitutes a wagering contract. 
 
 Cited in footnotes to Cashman v. Root, 12 L. R. A. 511, which holds invalid pur- 
 chase of stock on margin to receive or pay difference between buying and selling 
 value; Booth v. People, 50 L. R. A. 762, which holds statute against options 
 not invalid; Baxter v. Deneen, 64 L.R.A. 949, which holds that broker with whom 
 margins have been deposited in a stock gambling transaction will not be en- 
 joined from violating agreement to keep them on deposit in a specified bank 
 until the transaction is closed; Scales v. State, 66 L.R.A. 730, which holds 
 wagering contract in futures not shown by fact that purchaser intended to sell 
 his contract before time for performance arrived unless noncontemplation of 
 actual performance of obligation by other party is also shown. 
 
 Cited in notes (12 L. R. A. 121) on gambling contracts not binding; (64 L. 
 R. A. 165) on conflict of laws as to gambling and lottery tickets. 
 .Separable contract or salea. 
 
 Reaffirmed on later appeal in 82 Iowa, 174, 47 N. W. 1001, holding contract 
 for purchase of specified amount of coal at fixed price, with option for additional 
 amount on same terms, separable. 
 
 Cited in Stewart v. Pierce, 116 Iowa, 749, 89 N. W. 234, holding valid pro- 
 vision of separable contract enforceable; Grieve v. Illinois C. R. Co. 104 Iowa, 
 663, 74 N. W. 192, holding shipper of stock can insist on enforcement of valid 
 condition in his agreement separable from those invalid; Corcoran v. Lehigh & F. 
 Coal Co. 138 HI. 397, 28 N. E. 759, holding contract void in part only separable; 
 Rock Island Sash & Door Works v. Moore, Handley Hardware Co. 147 Ala. 589, 
 41 So. 806, holding a contract to furnish one car of sash, with privilege of three 
 cars at the same price, to be furnished at a certain time was a separate contract; 
 People ex rel. Oglevee v. Smith, 130 111. App. 413, on what constitutes a separable 
 contract; Iowa Brick Mfg. Co. v. Herrick, 126 Iowa, 723, 102 N. W. 787, holding 
 a contract to furnish brick for paving purposes, to be paid for monthly for those 
 furnished during the month is a separable contract, and failure to pay an in- 
 stalment will not release seller; Livingston v. Chicago & N. W. R. Co. 142 Iowa, 
 411, 120 N. W. 1040, holding that where parts of a separable contract are illegal 
 it does not affect the validity of the legal conditions. 
 Rescission of contract. 
 
 Cited in Quarton v. American Law Book Co. 143 Iowa, 529, 32 L.R.A. (X.S.) 14, 
 121 N. W. 1009, holding that seller of books on instalment plan can rescind con- 
 iract for failure of buyer to pay instalments under circumstances showing aban- 
 donment of contract; Bamberger Bros. v. Burrows, 145 Iowa, 451, 124 N. W. 333, 
 holding that failure to make timely delivery of part of clothing ordered authorizes 
 rescission, where contract is indivisible and time is of essence thereof. 
 
 Cited in footnote to Rappleye v. Racine Seeder Co. 7 L. R. A. 139, which holds 
 .contract of sale rescinded on purchaser's insolvency before delivery. 
 
 Cited in note (30 L. R. A. 71) on what will warrant rescission of contract. 
 For failure to pay as delivered. 
 
 Cited in Quarton v. American Law Book Co. 143 Iowa, 529, 121 N. W. 1009, 
 holding that failure to pay for instalments delivered will not authorize a repudi- 
 ation of the contract by the seller, unless accompanied by circumstances which 
 
161 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 659 
 
 *how the buyer intends to renounce the contract; Tuttle v. Chapman Coal Co. 
 136 Iowa, 384, 113 N. W. 827, holding that failure to pay for the coal delivered 
 by instalments, does warrant rescission unless the breach goes to the entire 
 consideration; Tilton v. J. L. Gates Land Co. 140 Wis. 207, 121 N. W. 331, hold- 
 ing that the mere failure to pay instalments relieved the plaintiffs from continu- 
 ing to perform the contract on their part. 
 Measure of damages for breach of contract. 
 
 Cited in James H. Rice Co. v. Pennsylvania Plate Glass Co. 88 111. App. 412, 
 folding measure of damages for goods manufactured and ready for delivery is 
 difference between contract and market price; T. B. Scott Lumber Co. v. Hafner- 
 Lothman Mfg. Co. 91 Wis. 673, 65 N. W. 513, holding measure of damages for 
 breach of contract of sale is difference between contract and market price at 
 time of breach; Hamilton v. Finnegan, 117 Iowa, 629. 91 N. W. 1039, holding 
 difference between market and contract price, only, at time of delivery, recover- 
 able by seller of stock upon refusal of buyer to take; Tuttle v. Chapman Coal 
 Co. 136 Iowa. 385, 113 X. W. 827, holding that the measure of damages for breach 
 of executory contract of sale is the difference between the contract price and the 
 market price at the time and place of delivery as provided in the contract. 
 
 Cited in note (6 L. R. A. 552) on measure of damages for breach of contract. 
 
 1 L. R. A. 659, NEWMAN v. COVENANT HUT. BEN. ASSO. 76 Iowa, 56, 14 
 
 Am. St. Rep. 196, 40 N. W. 87. 
 Amendment to pleading's. 
 
 Cited in P. Cox Stove Co. v. Adams, 105 Iowa, 410, 75 N. W. 316, holding re- 
 plevin changeable to action in equity; Daly v. Simonson, 126 Iowa, 719, 102 N. 
 W. 780, holding that the court in its discretion may allow amendments to plead- 
 ings of matters previously pleaded; Hanson v. Cline, 142 Iowa, 189, 118 N. W. 
 754, holding that amendment of pleadings should be allowed where substantial 
 rights are not thereby prejudiced, and amendments should not be stricken out 
 where the amendments are allowable though made without consent; Finlayson 
 v. Peterson, 11 N. D. 50, 89 N. W. 855, holding an amendment to complaint 
 proper though the latter changed the relief asked for but which was more ad- 
 vantageous to the defendant. 
 
 Distinguished in Lough v. Estherville, 122 Iowa, 482, 98 N. W. 308, holding 
 relief confined to that afforded by law where equity action, changed by amend- 
 ment into suit at law, is tried in equity court. 
 l':i i I nrc of beneficiary. 
 
 Cited in Schmidt v. Northern Life Asso. 112 Iowa, 49, 51 L. R. A. 145, 84 Am. 
 St. Rep. 323, 83 N. W. 800, holding benefits of policy revert to estate of insured, 
 murdered by wife, as beneficiary; Chicago Guaranty Fund Life Soc. v. Wheeler, 
 79 111. App. 244, holding policy payable to "widow, orphan, heir, or legatee" in 
 order named in mutual benefit charter and by-laws; Mullen v. Woodmen of the 
 World, 144 Iowa, 231, 122 N. W. 903, holding that fraternal benefit association 
 cannot avoid- liability by showing that beneficiary is not within any of classes 
 designated by law. 
 
 Cited in note (17 L.R.A.(N.S.) 1086) on disposition of fund in benefit society 
 upon failure of beneficiary. 
 Waiver of right to forfeit. 
 
 Cited in Northwestern Masonic Aid Asso. v. Bodurtha, 23 Ind. App. 127, 77 
 
 Am. St. Rep. 414, 53 N. E. 787, holding agent's acceptance of premiums with 
 
 knowledge of insured's violation of policy, waiver; German- American Ins. Co. v. 
 
 Teagley, 163 Ind. 660, 71 N. E. 897, 2 A. & E. Ann. Gas. 275, holding that the 
 
 L.R.A. Au. Vol. I. 11. 
 
1 L.R.A. 659] L. R. A. CASES AS AUTHORITIES. 162 
 
 right to enforce forfeiture clause was waived by the agent issuing the policy and 
 accepting the premium with notice of the breach; Modern Woodmen v. Brecken- 
 ridge, 76 Kan. 375, 10 L.R.A.(X.S.) 138, 89 Pac. 661, 12 A. & E. Ann. Cas. 636, 
 holding a subordinate lodge of a mutual benefit association waives the right of 
 the association to enforce forfeiture clause, provided for in the certificate, by 
 receiving duties with knowledge of the breach of the clause; Kirkpatrick v. Lon- 
 don Guarantee & Acci. Co. 139 Iowa, 376, 19 L.R.A.(N.S.) 105, 115 N. W. 1107, 
 on the waiver of right to forfeiture of policy by company giving effect to policy 
 with notice of breach of condition. 
 
 Cited in notes (15 L.R.A.(N.S.) 212) on waiver of provisions in insurance 
 policies forbidding use of intoxicants; (16 L.R.A. (N.S.) 1220) on agent's knowl- 
 edge of facts avoiding policy as waiver of right of forfeiture. 
 Forfeiture and exception clauses covering same cause. 
 
 Followed in Lowenstein v. Franklin L. Ins. Co. 122 111. App. 635, holding that 
 though an insurance company had waived its right to cancel a policy because 
 of breach of clause against intemperate use of intoxicating liquors, they have the 
 right to defend against an action on the ground that the insured died from effects 
 of intoxication. 
 
 Cited in Busing v. Modern Woodmen, 151 111. App. 55, holding that waiver 
 of defense of excessive use of intoxicating liquors does not waive defense of 
 death of insured from his intemperate use of intoxicating liquors. 
 Itnrden of proving noncompliance with terms of policy. 
 
 Cited in Sutherland v. Standard Life & Acci. Ins. Co. 87 Iowa. 509, 54 N. W. 
 453, holding noncompliance with terms of policy by insured, matter of defense; 
 Jones v. United States Mut. Acci. Asso. 92 Iowa, 659, 61 N. W. 485, holding 
 burden on insurer of proving conditions avoiding policy, though called "condi- 
 tions precedent." 
 
 Cited in note (4 L.R.A. (N.S.) 638) on duty of insured to negative death or 
 accident from excepted cause. 
 Enforcement of claims against mutual benefit association. 
 
 Cited in Christie v. Iowa L. Ins. Co. Ill Iowa, 180, 82 X. W. 499, holding 
 supplemental petition for judgment proper where assessment ordered on members 
 of association is insufficient; Union Mut. Acci. Asso. v. Frohard, 33 111. App. 183, 
 holding burden upon mutual association to show that assessment would not have 
 realized amount of risk; American Home Circle v. Schumm, 111 111. App. 318, 
 holding liability under death benefit certificate accrued at death of member. 
 
 Distinguished in Lindsey v. Western Mut. Aid Soc. 84 Iowa, 745, 50 N. W. 29, 
 holding improper court's reservation of right to order legal proceedings to collect 
 possible deficiency. 
 Necessity of attaching application to policy. 
 
 Cited in Grimes v. Northwestern L. of H. 97 Iowa, 324, 64 N. W. 806, 66 N. W. 
 183, requiring attachment of application to policy of fraternal and insurance 
 association not complying with exemption statutes; Corson v. Iowa Mut. F. Ins. 
 Asso. 115 Iowa, 487, 88 N. W. 1086, holding fire insurer cannot prdve falsity of 
 insured's statements, not attached to policy. 
 Time for making assessment. 
 
 Cited in Collins v. Bankers' Acci. Ins. Co. 96 Iowa, 220, 59 Am. St. Rep. 367, 
 64 N. W. 778, holding membership assessment to pay policy must be made as of 
 date of death of insured. 
 
 Liability of nevr member for previous assessments in mutual insurance 
 company. 
 
 Cited in Hetzel v. Knights & Ladies of Golden Precept, 129 Iowa. 657, 106 N. 
 W. 157, holding that a new member is not liable for previous assessments. 
 

 163 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 667 
 
 1 L. R. A. 664, TEACHOUT v. VAN HOESEN, 76 Iowa, 113, 14 Am. St. Rep. 
 
 206, 40 N. W. 66. 
 Actionable false representation as to cost, price or \ nine. 
 
 Citing Johnson v. Gavitt, 114 Iowa, 185, 86 N. W. 256, holding that faTse state- 
 ment as to amount paid for land with plaintiff's money is actionable; Dorr v. 
 Cory, 108 Iowa, 732, 78 N. W. 682, holding false statement as to actual price 
 paid for land actionable by persons deceived; Garrett v. Wannfried, 67 Mo. App. 
 442, holding that false representations as to cost of material going into joint 
 business enterprise are actionable; Franey v. Warner, 96 Wis. 236, 71 N. W. 81, 
 holding false representations as to cost of land, by promoters of corporation, 
 actionable against promoters; Scott v. Burnight, 131 Iowa, 509, 107 N. W. 422, 
 holding false representation as to values may be actionable deceit where one 
 party is wholly ignorant on the subject, and they were intended to deceive himj 
 Bosley v. Monahan, 137 Iowa, 655, 112 N. W. 1102, holding agent's false rep- 
 resentation as to selling price of land is not actionable; Beare v. Wright, 14 
 X. D. 37, 69 L.R.A. 414, 103 N. W. 632, 8 A. & E. Ann. Cas. 1057, holding 
 that misrepresentation of price paid for property in the absence of fiduciary 
 relation or contract, is not actionable deceit; Page Farmers' Elevator Co. v. 
 Thompson, 20 N. D. 259, 126 N. W. 1009, holding insufficient, complaint alleging 
 that defendant offered to sell to plaintiff an elevator for price defendant paid 
 for it, and that defendant, by falsely stating said price, induced plaintiff to 
 pay a certain sum more than elevator was worth; Kohl v. Taylor, 62 Wash. 
 683, 35 L.R.A. (N.S.) 182, 114 Pac. 874, holding that false statement of seller 
 of stock as to cost is ground for rescission and damages, where future business- 
 relations were to grow out of sale. 
 
 Cited in notes (2 L. R. A. 744) on requisites of action for false representa- 
 tions; (6 L. R. A. 151) on right of action for deceit; (25 L. R. A. 97) on duties 
 and liabilities of promoters of corporation to members; (35 L. R. A. 428) on 
 expression of opinion as fraud; (37 L. R. A. 613) on right to rely upon represen- 
 tations made to effect contract as basis for charge of fraud; (57 L. R. A. 108 > 
 as to liability for misrepresentations inducing purchase of corporation stock; (12 
 Eng. Rul. Cas. 297; 35 L.R.A. (N.S.) 185) on false statement as to cost, selling 
 or market price of property;.- (18 Am. St. Rep. 556, 557) on liability for false 
 representations by vendor as to value of property; (7 Eng. Rul. Cas. 522) on 
 liability of promoters to subscribers- for false representations as to price ol 
 property. 
 Proper party to maintain action for fraud on stockholder. 
 
 Cited in Anderson Carriage Co. v. Pungs, 134 Mich. 81, 95 N. W. 985, on 
 proper party to maintain action for fraud on stockholders. 
 
 Distinguished in Grand Rapids Safety Deposit Co. v. Cincinnati Safe & Lock 
 Co. 45 Fed. 673, holding corporation may recover for fraud against it, although 
 promoter of tort is a stockholder. 
 
 1 L. R. A. 667, ST. LOUIS, A. & T. R. CO. v. MACKIE, 71 Tex. 491, 10 Am. St. 
 
 Rep. 766, 9 S. W. 451. 
 Care of passengrer as to discovery of agent's mistake. 
 
 Cited in Gulf, C. & S. F. R. Co. v. Rather, 3 Tex. Civ. App. 77, 21 S. W. 951, 
 holding passenger's negligence in not discovering ticket agent's mistake question 
 for jury. 
 
 Cited in note (23 L. R. A. 749) on notice to passenger of conditions on ticket. 
 Injured person's doty as to avoiding consequences of wrong-. 
 
 Cited in Pullman Palace Car Co. v. McDonald, 2 Tex. Civ. App. 325, 21 S. W. 
 
1 L.R.A. b'67] L. R. A. CASES AS AUTHORITIES. 164 
 
 945, holding evidence of inability to pay fare admissible, without special allega- 
 tion; Inman v. St. Louis S. W. R. Co. 14 Tex. Civ. App. 53, 37 S. W. 37, holding 
 injured shipper required to act only with reasonable prudence to prevent unnec- 
 cessary damage after refusal to receive goods; Missouri P. R. Co. v. Martino, 
 
 2 Tex. Civ. App. 642, 18 S. W. 1066; Texas & P. R. Co. v. Dennis, 4 Tex. Civ. 
 App. 97, 23 S. W. 400, holding passenger need not pay extra fare to avoid 
 expulsion; Texas & P. R. Co. v. Payne, 99 Tex. 48, 70 L.R.A. 948, 122 Am. St. 
 Rep. 603, 87 S. W. 330, on the liability of railroad company for damages for 
 ejection from train because of agent's refusal to sign ticket; Cherry v. Chicago 
 & A. R. Co. 191 Mo. 514, 2 L.R.A.(N.S.) 704, 109 Am. St. Rep. 830, 90 S. W. 
 381, holding that where a person is entitled to ride on the road under a ticket 
 which he has paid for, he need not pay the fare demanded by the conductor to 
 prevent his ejection; Gulf, C. & S. F. R. Co. v. Dyer, 43 Tex. Civ. App. 98, 95 
 S. W. 12, holding that a passenger entitled to be carried on a train is not bound 
 to pay the extra fare demanded, in order to reduce the resultant damages, but 
 may stand on his rights. 
 
 Distinguished in Galveston, H. & H. R. Co. v. Scott, 34 Tex. Civ. App. 504, 
 79 S. W. 642, holding that the defendant road was not liable for ejection of 
 plaintiff's wife from the train because of failure to pay fare, whether or not 
 he was unable to pay the fare, where he allowed her to enter the train without 
 a ticket. 
 
 Cited as overruled in Texas & P. R. Co. v. Arnold, 16 Tex. Civ. App. 76, 40 
 S. W. 829, as to qualification of doctrine of avoidable consequences. 
 Conclusiveness of ticket as evidence of contract. 
 
 Cited in Galveston, H. & S. A. R. Co. v. Kinnebrew, 7 Tex. Civ. App. 551, 27 
 S. W. 631, and Gulf, C. & S. F. R. Co. v. Halbrook, 12 Tex. Civ. App. 1 481, 33 S. 
 W. 1028, holding ticket is not conclusive evidence of contract to carry passen- 
 ger; Hot Springs R. Co. v. Deloney, 65 Ark. 180, 67 Am. St. Rep. 913, 45 S. W. 
 351; Missouri P. R. Co. v. Martino, 2 Tex. Civ. App. 642, 18 S. W. 1066, 21 
 S. W. 781; Texas & P. R. Co. v. Dennis, 4 Tex. Civ. App. 96, 23 S. W. 400; Evans- 
 ville & T. H. R. Co. v. Cates, 14 Ind. App. 174, 41 N. E. 712; Gulf, C. & S. F. 
 R. Co. v. Wright, 2 Tex. Civ. App. 469, 21 S. W. 399, holding railroad assumes 
 responsibility for conductor's wrongful demand of extra fare; Indianapolis 
 .Street R. Co. v. Wilson, 161 Ind. 159, 66 ^ T . E. 950, holding carrier liable for 
 forcibly ejecting passenger, when conductor of another car had given him wrong 
 transfer; Northern P. R. Co. v. Pauson, 30 L. R. A. 733, 17 C. C. A. 291, 44 
 KJ. S. App. 178, 7jO Fed. 589, holding railway company liable for expulsion of 
 passenger due to agent's failure to stamp ticket; Texas & P. R. Co. v. Wynn, 
 44 Tex. Civ. App. 31, 97 S. W. 506, holding that where one applies for a 
 roundtrip ticket over connecting lines and is given a contract which is signed, 
 but upon which he is refused transportation, he had a right to assume that 
 the paper given was a ticket and not an ordr for one. 
 
 'Cited in footnote to Atkinson v. Southern R. Co. 55 L. R. A. 223, which holds 
 action maintainable for expulsion because train did not stop at station called 
 for by ticket. 
 
 Cited in notes (43 L. R. A. 708. 710) on duty to pay fare where failure to 
 have proper ticket is fault of ticket agent; (2 L.R.A. (X.S.) 697) on validity or 
 regulation requiring passenger to pay disputed fare. 
 
 Distinguished in Ellis v. Houston E. & W. T. R. Co. 30 Tex. Civ. App. 178, 
 70 S. W. 114, holding carrier not liable for ejection of passenger from freight 
 train for failure to sign permit, although agent sold him ticket without asking 
 him to sign such permit; Gulf, C. & S. F. R. Co. v. McCormick, 45 Tex. Civ. 
 App. 428, 100 S. W. 202, holding that one who buys and loses his ticket, and 
 
165 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 671 
 
 thereafter, enters a train and refuses to pay for his passage, and is ejected 
 from the train is not entitled to recover the price of the ticket nor damages. 
 Duty of carrier to protect passenger*. 
 
 Cited McMahon v. Chicago C. R. Co. 143 111. App. 612, holding that the 
 company is bound to use due diligence to protect passengers from assault both 
 by its servants and others. 
 
 Cited in note (32 Am. St. Rep. 95) on carriers' duty to protect passengers 
 from assault. 
 Tnilnre to provide sent. 
 
 Cited in Texas & P. R. Co. v. Rea, 27 Tex. Civ. App. 552, 65 S. W. 1115, hold- 
 ing carrier liable for damages proximately resulting from failure to provide 
 passenger with seat. 
 Measure of damages. 
 
 Cited in footnote to Davis v. Tacoma R. & P. Co. 66 L.R.A. 802, which 
 holds that damages for being wrongfully ordered to leave place of public 
 resort may include compensation for sense of wrong suffered, feeling of humilia- 
 tion, and disgrace, and mental suffering. 
 
 Distinguished in Norwood v. Galveston, H. & S. A. R. Co. 12 Tex. Civ. App. 
 561, 34 S. W. 180, requiring private person to prove special damages to recover 
 for violation of penal statute. 
 
 1 L. R. A. 669. VAN ETTEN v. STATE, 24 Neb. 734, 40 N. W. 289. 
 Attorney's lien. 
 
 Cited in State v. Lucas, 24 Or. 173, 33 Pac. 538, holding attorney had no lien 
 on money delivered to him for use as bail only; Harshman v. Armstrong, 119 
 Ind. 226. 21 N. E. 662, holding attorney may retain client's moneys for general 
 balance due, as against prior judgment creditor. 
 
 Cited in footnote to Loofbourow v. Hicks, 55 L. R. A. 874, which holds attor- 
 ney's lien in foreclosure attaches to land. 
 
 Cited in notes (12 Am. St. Rep. 831; 24 Eng. Rul. Cas. 703) on lien of 
 solicitor or attorney. 
 
 Distinguished in Gordon v. Hennings, 89 Neb. 255, 131 N. W. 228, holding 
 that treasurer, after revocation of attorney's authority to collect city warrants, 
 pays at his own risk any money to attorney in excess of amount due from 
 client to attorney. 
 Embezzlement. 
 
 Cited in Hamilton v. State, 46 Neb. 286, 64 N. W. 965, holding mere indebted- 
 ness of agent to principal on balanced account not embezzlement; State v. 
 Reddick, 2 S. D. 126, 48 N. W. 846, holding misappropriation by partner of 
 firm's funds with felonious intent not embezzlement. 
 
 Cited in note (31 L.R.A. (N.S.) 825) on failure to account to one jointly in- 
 terested as theft, larceny, or embezzlement. 
 
 Distinguished in Edmondson v. State, 89 Neb. 801, 132 N. W. 527, holding 
 that fact that guardian is entitled to compensation out of ward's money con- 
 verted by him is not defense to prosecution for embezzlement. 
 
 1 L. R. A. 671, AMERICAN STEAM-BOILER INS. CO. v. WILDER, 39 Minn. 
 
 350, 40 N. W. 252. 
 Right of assnred to rescind contract. 
 
 Cited in note (21 Am. St. Rep. 37) on right of assured to rescind insurance 
 contract. 
 
1 L.E.A. 673] L. R. A. CASES AS AUTHORITIES. 166 
 
 1 L. R. A. 673, POULSEN v. PORTLAND, 16 Or. 450, 19 Pac. 450. 
 
 Judgment roll offered in evidence in Bays v. Trulson, 25 Or. 112, 35 Pac. 26. 
 Notice as affecting: taking: of property \\ it limit due process of law. 
 
 Affirmed in 149 U. S. 37, 37 L. ed. 640, 13 Sup. Ct. Rep. 750, holding notice 
 unnecessary before ordering construction of sewer and creating taxing district. 
 
 Cited in Shannon v. Portland, 38 Or. 393, 62 Pac. 50, upholding assessment, 
 though reasonable notice was not given; Houck v. Roseburg, 56 Or. 244, 108 
 Pac. 186, holding that equity will not enjoin collection of sewer assessment, 
 where constructive notice is given to owner benefited by statutory publication 
 in newspaper. 
 
 Cited in footnotes, Chicago & E. R. Co. v. Keith, 60 L. R. A. 525, which holds 
 notice necessary to valid assessment on real estate, other than general taxes; 
 Brown v. Markham, 30 L. R. A. 84, which upholds statute authorizing estab- 
 lishment of logger's lien without notice to owner, where he is permitted to 
 intervene in original action, and not precluded from denying, in subsequent pro 
 ceeding, the right to a lien. 
 
 Cited in notes (24 L. R. A. 355) on taking of property without due process of 
 law; (60 L. R. A. 210, 242) on procedure for the establishment of drains and 
 sewers as to notice and contest. 
 Stare decisis. 
 
 Approved in Logan County v. Carnahan, 66 Neb. 695, 95 N. W. 812, on the 
 doctrine of stare decisis, as binding though against the present views of the 
 court. 
 
 Cited in Scott v. Stewart, 84 Ga. 774, 11 S. E. 897, following decision of eleven 
 years' standing, although against views of court; Runyan v. Winstock, 55 Or. 
 208, 104 Pac. 417, hoMing that decisions construing statute giving husband 
 estate by curtesy establish rule of property. 
 
 Cited in note (73 Am. St. Rep. 99) on limitations on doctrine of stare 
 decisis. 
 Imposition of assessment for improvements. 
 
 Cited in Masters v. Portland, 24 Or. 165, 33 Pac. 540, holding wilful omis- 
 sion to assess a portion of property benefited by local improvement invalidates 
 assessment; Wilson v. Salem, 24 Or. 508, 34 Pac. 9, 691, holding city coun- 
 cil has discretionary power to improve street at expense of abutting property : 
 Oregon & C. R. Co. v. Portland, 25 Or. 238, 22 L. R. A. 715, 35 Pac. 452, hold- 
 ing courts will not review city council's discretionary power to assess, if 
 honestly exercised; Independence v. Gates, 110 Mo. 382, 19 S. W. 728, holding 
 courts may interfere with assessment levied by city, to prevent gross injustice; 
 Atlanta v. Hamlein, 96 Ga. 384, 23 S. E. 408, holding invalid local assessment 
 amounting to virtual confiscation; Speer v. Athens, 85 Ga. 62, 9 L. R. A. 
 406, 11 S. E. 802, holding legislative determination of lands benefited by im- 
 provement conclusive upon owner; Beckett v. Portland, 53 Or. 172, 99 Pac. 05!). 
 holding that the action of the city council in assessing benefits for public 
 improvements and fixing districts is conclusive and not open to collateral 
 attack in absence of fraud appearing on face of council's actions. 
 
 Cited in footnote to State ex rel. Baltzell v. Stewart, 6 L. R. A. 394, which 
 Tiolds that legislature may grant power to drainage commissioners to deter- 
 mine what lands benefited. 
 
 Cited in notes (9 L. R. A. 207) on statutory regulations as to drains and 
 sewers; (58 L. R. A. 359) on who is liable for expense of drainage. 
 
 Distinguished in Knowles v. New Sweden Irrig. Dist. 16 Idaho, 248, 101 Pac. 
 
167 L. R. A. CASES AS AUTHORITIES. [1 L.KA. 682 
 
 81, holding that inability to confer any benefits implies a lack of jurisdiction 
 to assess for benefits by a board of irrigation. 
 Joinder of parties to -nil. 
 
 C'ited in Tieman v. Sachs, 52 Or. 564, 98 Pac. 163, holding that a demurrer 
 for defect of parties can be interposed only where there are too few, and not 
 because there are too many; Coleman v. Rathbun, 40 Wash. 307, 82 Pac. 540, 
 holding that in order to avoid a multiplicity of suits an action in equity by 
 many plaintiffs will be allowed to be brought jointly by persons owning lands 
 to restrain the enforcement of liens. 
 
 1 L. R. A. 680, FLAHERTY v. NORTHERN P. R. CO. 39 Minn. 328, 12 Am. 
 
 St. Rep. G54, 40 N. W. 160. 
 Concurrent wrongs. 
 
 Cited in Brown v. Coxe Bros. & Co. 75 Fed. 691, and Pugh v. Chesapeake 
 & O. R. Co. 101 Ky. 83, 72 Am. St. Rep. 392, 39 S. W. 695, upholding joint 
 and several liabilities for separate acts of negligence concurring in injury; 
 Bacon v. Pullman Co. 16 L.R.A.(N.S.) 582, 89 C. C. A. 1, 159 Fed. 6, 14 A. 
 & E. Ann C'as. 516, holding concurring negligence of another does not relieve 
 wrongdoer from liability; Indianapolis Union R. Co. v. Waddington, 169 Ind. 
 459, 82 N. E. 1030, holding action may be maintained against joint wrongdoers 
 where negligence was contemporaneous; Pacific Teleph. & Teleg. Co. v. Par- 
 menter, 95 C. C. A. 382, 170 Fed. 144, holding telephone company and person 
 cutting tree so that it fell against wire causing pole to fall on traveler, jointly 
 and severally liable; Strauhal v. Asiatic S. S. Co. 48 Or. 107, 85 Pac. 230, 
 holding that owner, employing plaintiff to man pumps of unseaworthy barge, is 
 jointly liable with lessee, improperly loading barge, for drowning of plaintiff 
 by capsizing of barge; Sun Co. v. Wyatt, 48 Tex. Civ. App. 352, 107 S. W. 934, 
 holding that each of several companies, independently laying pipes in street 
 drainage ditch, causing water to overflow plaintiff's premises is separately 
 liable for damage caused by it; Walton v. Miller, 109 Va, 215, 132 Am. St. Rep. 
 908, 63 S. E. 458, holding railroad and contractor jointly and severally liable 
 for death of engineer for negligence in giving warning of obstruction on track. 
 
 C'ited in note (16 Am. St. Rep. 252) on negligence of two or more persons 
 resulting in injury to third person. 
 Imputed negligence. 
 
 Cited in Koplitz v. St. Paul, 86 Minn. 375, 58 L. R. A. 75, 90 N. W. 794, 
 holding one not imputable with negligence of another in conduct not authorized, 
 participated in, or subject to his control; East Tennessee, V. & G. R. Co. v. 
 Markens, 88 Ga. 62, 14 L. R. A. 282, 13 S. E. 855, holding negligence of hack 
 driver not imputable to female passenger. 
 
 Cited in notes (8 L. R. A. 494) on doctrine of imputed negligence; (9 L. R. A 
 157) on negligence of driver not imputed to passenger; (8 L.R.A.(N.S.) 601 T 
 606, 614, 616) on imputed negligence of driver to passenger; (110 Am. St. Rep. 
 290) on imputed negligence. 
 
 1 L. R. A. 682, QUIXN v. SOUTH CAROLINA R. CO. 29 S. C. 381, 7 S. E. 614. 
 "N i-u ! iirt-no- as question for jury. 
 
 C'ited in note (22 Am. St. Rep. 908) on negligence as question for jury. 
 Passenger's contributory negligence In projecting arm from car. 
 
 Cited in Smith v. St. Louis Transit Co. 120 Mo. App. 333, 97 S. W. 218, 
 holding that contributory negligence of passenger in allowing elbow to protrude 
 from car window, was question for jury. 
 
1 L.R.A. 682] L. K. A. CASES AS AUTHORITIES. 168 
 
 Cited in note (116 Am. St. Rep. 722) on negligence of passenger in projecting 
 a member of body out of car window. 
 
 Distinguished in Georgia P. R. Co. v. Underwood, 90 Ala. 51, 24 Am. St. Rep. 
 756, 8 So. 116, holding that protrusion of arm beyond window of car in motion 
 is negligence per se. 
 Liability for servant's act. 
 
 Cited in Rucker v. Smoke, 37 S. C. 381, 34 Am. St. Rep. 758, 16 S. E. 40 r 
 holding principal liable for exemplary damages accruing in course of agency; 
 Hart v. Charlotte, C. & A. R. Co. 33 S. C. 436, 10 L. R. A. 790, 12 S. E. 9, 
 holding lessor liable in exemplary damages for recklessness of lessee's servant;. 
 Grayson v. St. Louis Transit Co. 100 Mo. App. 74, 71 S. W. 730, holding com- 
 pany liable for false arrest ordered by conductor before passenger left car. 
 
 Cited in note (4 L.R.A. (N.S.) 506) on liability for malicious act of servant 
 when master owes special duty to party injured. 
 Wilfulness as ground for exemplary damages. 
 
 Cited in Samuels v. Richmond & D. R. Co. 35 S. C. 504, 28 Am. St. Rep. 883 r 
 14 S. E. 943, holding that wilful refusal to deposit passenger at destination- 
 warrants exemplary damages; Spellman v. Richmond & D. K. Co. 35 S. C. 489, 
 28 Am. St. Rep. 858, 14 S. E. 947, holding that wanton or reckless disregard 
 of rights warrants exemplary damages; Taber v. Seaboard Air Line R. Co. 81 
 S. C. 320, 62 S. E. 311, holding that punitive damages could be recovered 
 against a railroad company for wilful acts of agent though it never ratified the 
 act. 
 
 Cited in notes (28 Am. St. Rep. 877, 8 Eng. Rul. Cas. 375) on right to puni- 
 tive damages. 
 
 Criticized in Pickens v. South Carolina & G. R. Co. 54 S. C. 507, 32 S. E. 
 567, holding wilfulness essential to recovery of exemplary damages. 
 
 Cited as criticized in Watts v. South Bound R. Co. 60 S. C. 74, 38 S. E. 240, 
 holding allegation of wanton and reckless act warrants exemplary damages. 
 
 1 L. R. A. 685, SHELDON v. BLAXVELT, 29 S. C. 453, 13 Am. St. Rep. 
 749, 7 S. E: 593. 
 
 Cited without special discussion in Savannah Grocery Co. v. Rizer, 70 S. C.. 
 509, 50 S. E. 199. 
 Frnndnlent assignments for creditors. 
 
 Cited in note (58 Am. St. Rep. 92) on fraudulent assignments for creditors. 
 What are fixtures. 
 
 Cited in Hughes v. Edisto Cypress Shingle Co. 51 S. C. 28, 28 S. E. 2, hold- 
 ing that portable engine and sawmill located for temporary purposes are per- 
 sonal property; William Firth Co. v. South Carolina Loan & T. Co. 122 Fed- 
 579, holding cotton machinery in mill to be fixture as between mortgagor 
 and mortgagee. 
 Conflict of latvs. 
 
 Cited in National Exch. Bank v. Stelling, 31 S. C. 367, 9 S. E. 1028, sus- 
 taining jurisdiction to set aside foreign assignment where parties nonresident, 
 but property in state; Ayres v. Despartes, 56 S. C. 547, 35 S. E. 218, denying 
 right of action under foreign preferential assignment for creditors ; Chicago, 
 B. & Q. R. Co. v. Gardiner, 51 Neb. 79, 70 N. W. 508, refusing to enforce foreign 
 limitation upon carrier's liability, valid where made, but contrary to public 
 policy; Parker v. Moore, 53 C. C. A. 372, 115 Fed. 802, refusing to enforce- 
 contract for future delivery of cotton, valid under lex loci, but contrary to pub- 
 lic policy of forum; Adams v. Fellers, 88 S. C. 214, 35 L.R.A.(N.S.) 388, 70 S. 
 
169 L. K. A. CASES AS AUTHORITIES. [1 L.R.A. 688 
 
 E. 722, holding that lessor of machine for use in state whose laws do not 
 require recording of lease can recover machine from bona fide purchaser in 
 another state whose laws require recording of lease. 
 
 Cited in note (55 Am. St. Rep. 775) on enforcement of contract outside of 
 jurisdiction where made. 
 
 Distinguished and doubted in Schroder v. Tompkins, 58 Fed. 677, holding for- 
 eign voluntary assignment for creditors to be effectual conveyance of property 
 in assignee's possession. 
 Nonresident's rinln to sue. 
 
 Cited in Gibson v. Everett, 41 S. C. 26, 19 S. E. 286, and Ford v. Calhoun, 
 53 S. C. 113, 30 S. E. 830, sustaining nonresident's right to sue; Corn Exch. 
 Bank v. Rockwell, 58 Hit App. 515, holding nonresidents in court entitled to 
 rights and remedies of citizens; Barnett v. Kinney, 2 Idaho, 710, 23 Pac 
 922, holding nonresidence of attaching creditor without prejudice to rights: 
 Garner v. Garner, 70 S. C. 509, 50 S. E. 5, on the jurisdiction of the state 
 courts over cause of action arising in state, both parties being nonresidents 
 Uiiiln to attachment. 
 
 Cited in Central R. & Bkg. Co. v. Georgia Constr. & Invest. Co. 32 S. C 
 342, 11 S. E. 192, holding absence of right to sue precludes attachment in aid of 
 action. 
 
 1 L. R. A. 688, SCOTT v. TOLEDO, 36 Fed. 385. 
 Compensation essential to dne process. 
 
 Cited in Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 238, 41 L. ed. 985, 17 
 Sup. Ct. Rep. 581, holding taking for public use, without compensation, not 
 due process; Baker v. Norwood, 74 Fed. 1000, holding taking of single individ- 
 ual's property and assessing him with amount awarded and expenses, not due 
 process; Anderton v. Milwaukee, 82 Wis. 285, 15 L. R. A. 832, 52 N. W. 95, 
 holding discrimination in compensation a denial of equal protection ; Louisville 
 & N. R. Co. v. Central Stock Yards Co. 133 Ky. 202, 97 S. W. 778, on the 
 necessity of compensation paid or secured before taking for public use. 
 
 Cited in footnote to State v. Sponaugle, 43 L. R. A. 727, which holds for- 
 feiture for nonpayment of taxes, sale, and return of excess of proceeds to own- 
 er, due process. 
 Notice essential to due process. 
 
 Cited in Davies v. Los Angeles, 86 Cal. 46, 24 Pac. 771, holding notice by 
 posting and publication to be due process; Goodrich v. Detroit, 184 U. S. 437, 
 46 L. ed. 631, 22 Sup. Ct. Rep. 397, holding possible future assessment for 
 benefits, too remote to require notice of taking of another's land; People v. 
 Adirondack R. Co. 39 App. Div. 49, 56 N. Y. Supp. 869 (dissenting opinion), 
 majority holding that filing map and giving notice gave right to condemn land 
 subsequently purchased by state; Murdock v. Cincinnati, 39 Fed. 892, holding 
 assessments without notice or opportunity to be heard, not due process: Mc- 
 Gavock v. Omaha, 40 Neb. 79, 58 N. W. 543, holding right of action for damage 
 not barred by improvement without notice: Anderson v. Messenger, 85 C. C. 
 A. 468, 158 Fed. 256, on the necessity of notice in levying assessments. 
 
 Cited in footnotes to Branson v. Gee, 24 L. R. A. 355, which holds notice 
 of taking not required if right to damages and hearing thereon given ; Brown 
 v. Markham, 30 L. R. A. 84, which holds notice not essential to due process of log 
 lien proceedings if owner may contest merits upon enforcement; Chicago & 
 E. R. Co. v. Keith, 60 L. R. A. 525. which holds notice necessary to validity 
 of assessment on real estate, other than general taxes. 
 
1 L.R.A. 688] L. R. A. CASES AS AUTHORITIES. 170 
 
 Assessment -without notice or hearing:. 
 
 Cited in Meyers v. Shields, 61 Fed. 720, holding entering of assessment on 
 duplicate without notice or hearing, creating lien enforceable without suit, 
 not due process; McEneney v. Sullivan, 125 Ind. 409, 25 N. E. 540, holding 
 notice prior to conclusive judgment, prerequisite to lien for local assessment; 
 Power v. Larabee, 2 N. D. 155, 49 N. W. 724, holding imposition of tax without 
 statutory meeting of board of equalization not due process. 
 
 Distinguished in Murdock v. Cincinnati, 44 Fed. 727, holding assessment 
 at instance of, and in mode desired by, one assessed not void for want of no- 
 tice or hearing, defense being available in suit. 
 Right to set off benefits against damages on condemnation. 
 
 Cited in note (9 L.R.A. (N.S.) 833) on right to set off benefits against dam- 
 ages on condemnation. 
 Validity of assessments by front-foot rale. 
 
 Cited in note, (28 L.R.A. (N.S.) 1145) on validity of assessments for improve- 
 ments by front-foot rule. 
 
 I L. R. A. 698, GRIFFIN v. BOSTON & A. R. CO. 148 Mass. 143, 12 Am. St. 
 
 Rep. 526, 19 N. E. 166. 
 Fellow servant's negligence. 
 
 Cited in Myers v. Hudson Iron Co. 150 Mass. 137, 15 Am. St: Rep. 176, 22 N. 
 E. 631; Union P. R. Co. v. Callaghan, 6 C. C. A. 207, 12 U. S. App. 541, 56 Fed. 
 990; Northwestern Fuel Co. v. Danielson, 6 C. C. A. 639, 12 U. S. App. 088, 
 57 Fed. 919, holding master's liability for negligence not relieved by con- 
 tributing negligence of fellow servant; Chicago, R. I. & P. R. Co. v. Sutton, 
 
 II C. C. A. 253, 27 U. S. App. 310, 63 Fed. 395, holding contributory negligence 
 of third party without effect upon defendant's liability for negligence; Chi- 
 cago, St. P. & K. C. R. Co. v. Chambers, 15 C. C. A. 333, 32 U. S. App. 253, 
 68 Fed. 153, holding contributing negligence of plaintiff's fellow servant no de- 
 fense to stranger's negligence. 
 
 Cited in notes (7 L. R. A. 503) on who are fellow servants; (54 L. R. A. 71, 
 174) on vice principalship as determined with reference to the character of the 
 act which caused the injury; (1 L.R.A. (N.S.) 670) on negligence of servant 
 in sending out unsafe street cars causing injury to other servants. 
 Prima facie evidence of negligence. 
 
 Cited in Babcock v. Old Colony R. Co. 150 Mass. 471, 23 N. E. 325, holding 
 leaving pile of sleepers near track in railroad freight yard for long time, 
 evidence of master's negligence; Womble v. Merchants Grocery Co. 135 N. C. 
 484, 47 S. E. 493, holding falling of elevator without apparent cause, evidence 
 of negligence in construction; Drake Standard Mach. Works v. Brossinan, 135 
 111. App. 222, holding that proof of an injury occurring as the proximate re- 
 sult of an act which under ordinary circiunstances would not have injured 
 anyone, raises a presumption of negligence; Falardeau v. Hoar, 192 Mass. 
 267, 78 N. E. 456, holding that proof of injury by falling through unguarded 
 trap door was prima facie proof of negligence; Cahill v. New England Teleph. 
 & Teleg. Co. 193 Mass. 417, 79 N. E. 821, holding that proof of receiving un- 
 usual electric shock by telephone operator was prima facie evidence of de- 
 fective condition of switch-board; Magee v. New York, N. H. & H. R. Co. 195 
 Mass. 113, 80 N. E. 689, holding that in the absence of explanation the injury 
 to the passenger will be presumed to have come from a cause for which de- 
 fendant was responsible; Egan v. Old Colony Street R. Co. 195 Mass. 161, 80 
 N. E. 696, holding proof of derailment of car is prima facie evidence of negli- 
 
171 L. E. A. CASES AS AUTHORITIES. [1 L.R.A. 698 
 
 gence on part of carrier, and defective construction of track; Ryan v. Fall 
 River Iron Works Co. 200 Mass. 193, 80 X. E. 310, holding that the self start- 
 ing of a machine which was not constructed to do so, was evidence priraa 
 facie of defective condition of same; Doherty v. Booth, 200 Mass. 525, 86 N. 
 E. 945, holding that the breaking of a sling rope was prima facie evidence 
 of negligence in failing to provide proper rope; Carroll v. Boston Elev. R. Co. 
 200 Mass. 536, 86 N. E. 793, holding that proof of accident will establish prima 
 facie case against carrier for injury to passenger; Rogers v. Portland Lumber 
 Co. 54 Or. 393, 102 Pac. 601, on the mere proof of accident as raising a 
 presumption of negligence; Graaff v. Vulcan Iron Works, 59 Wash. 328, 109 
 Pac. 1016, holding that negligence may be presumed from dropping off of 
 wheel of truck. 
 
 Cited in footnote to Louisville & N. R. Co. v. Hall, 4 L. R. A. 710. which 
 holds railroad bridge so low that brakeman cannot avoid danger by stooping, 
 per se a nuisance. 
 
 Cited in notes (6 L.R.A. (X.S.) 357) on res ipsa loquitur, as between master 
 and servant; (19 Eng. Rul. Cas. 14) on prima facie liability for negligence of 
 occupier of a tenement. 
 
 Distinguished in Thyng v. Fitchburg R. Co. 156 Mass. 19, 32 Am. St. Rep. 
 425, 30 N. E. 169, holding mere use of too short coupling pin on foreign car 
 not indication of master's negligence; Madden v. Occidental & O. S. S. Co. 86 
 Cal. 448, 25 Pac. 5, holding mere breaking of rope sling not prima facie evidence 
 of negligence; South Baltimore Car Works v. Schaefer, 96 Md. 106, 94 Am. St. 
 Rep. 560, 53 Atl. 665, holding master not liable for injury from machine, in 
 absence of showing that inspection would have disclosed defect. 
 
 Concurrence of act or negrlect of another. 
 
 Cited in Byers v. Carnegie Steel Co. 16 L.R.A.(N.S.) 218, 86 C. C. A. 347, 159 
 Fed. 351, holding that if the accident occurs as a result of the plaintiff's own 
 negligence, proof of accident is not prima facie evidence of negligence; Illinois 
 Steel Co. v. Zolnowski, 118 111. App. 217, holding that the doctrine of res 
 ipsa loquitur does not apply in cases where the injury results from wilful 
 act of another. 
 Injnry must be probable result of master's negligence. 
 
 Cited in Mooney v. Connecticut River Lumber Co. 154 Mass. 409, 28 N. E. 
 352, holding plaintiff in action for injuries bound to show proper inference, 
 not particular acts of master's negligence; Johnson v. Worcester, 172 Mass, 
 124, 51 N. E. 519, holding finding of negligence warranted if most reasonable 
 explanation; Telle v. Leavenworth Rapid Transit R. Co. 50 Kan. 461, 31 Pac. 
 1076, holding proof of obstruction just at time of collision with train in- 
 sufficient to establish negligence of master in action by employee; Choctaw, O. 
 & G. R. Co. v. Holloway, 52 C. C. A. 264, 114 Fed. 462, holding negligence of 
 railroad company in providing brake not excused by negligence of third party 
 contributing to accident: Florala Saw Mill Co. v. Smith, 55 Fla. 455, 46 So. 
 332, holding that proof of defective condition of machine was sufficient without 
 proof of specific defect. 
 
 Cited in note (16 L. R. A. 820) on the relation of the proximate cause 
 doctrine to the rule of liability of a master for injuries to his servant caused 
 by combined negligence of himself and fellow servant. 
 
 Proximate cause as question for jury. 
 
 Cited in Manning v. Portland Ship Building Co. 52 Or. 107, 96 Pac. 545 r 
 holding that where it is doubtful whether the defendant's negligence was the 
 proximate cause of the injury it is a question for the jury. 
 
1 L.R.A. 698] L. R. A. CASES AS AUTHORITIES. 172 
 
 Burden of proof not sustained by equivocal evidence. 
 
 Cited in McCreary v. Boston & M. R. Co. 153 Mass. 308, 11 L. R. A. 361, 
 26 N. E. 864, and Sprow v. Boston & A. R. Co. 163 Mass. 341, 39 X. E. 1024, 
 holding prescriptive public way not proved by evidence consistent with pri- 
 vate way or permissive use; Shea v. Boston & M. R. Co. 154 Mass. 33, 27 N. E. 
 672, holding burden of due care not sustained by evidence as consistent with 
 carelessness; Wood v. Southern R. Co. 104 Va. 655, 52 S. E. 371, holding that 
 in order to make out a prima facie case for personal injuries all the plaintiff 
 must do is to show that it is most probable that the injury resulted from the 
 defendant's negligence. 
 Due care by stranger. 
 
 Cited in Grand Rapids & I. R. Co. v. Cox, 8 Ind. App. 38, 35 N. E. 183, 
 holding driving upon track immediately after passage of train not negligence 
 per se. 
 
 Distinguished in Fletcher v. Fitchburg R. Co. 149 Mass. 133, 3 L. R. A. 745, 
 21 N. E. 302, holding driving upon main track immediately upon passing 
 of train on intervening switch not due care. 
 Duty of master to provide safe machinery and appliances. 
 
 Cited in footnotes to Minty v. Union P. R. Co. 4 L. R. A. 409, which holds 
 that injured servant, before recovery, must show accident not due to defect ob- 
 vious to himself; Philadelphia & R. R. Co. v. Huber, 5 L. R. A. 439, which 
 holds it question for jury whether brakeman negligent in using brake, defect 
 in which could have been seen; Goodrich v. New York Central & H. R. R. Co. 
 5 L. R. A. 750, which holds railroad company liable for permitting cars from 
 another road with defective coupling apparatus to go into a train; Lehigh & 
 W. Coal Co. v. Hayes, 5 L. R. A. 441, which holds company not liable for failing 
 to provide appliance to warn employees in pocket of danger from drawing 
 coal; Pittsburg & L. E. R. Co. v. Henley, 15 L. R. A. 384, which holds it not 
 negligence per se for railroad to adopt new coupling device without dis- 
 carding old; Tennessee Coal, Iron & R. Co. v. Kyle, 12 L. R. A. 103. which 
 holds railroad liable to employee for injury caused by running freight train with- 
 out cowcatcher; Sweet v. Ohio Coal Co. 9 L. R. A. 861, which holds master not 
 bound to conduct his business in least hazardous way. 
 
 Cited in notes (2 L. R. A. 521) on duty of master to provide safe machin- 
 ery; (4 L. R. A. 797) on who are master and servant, in regard to duty of 
 employer to provide safe machinery; (41 L.R.A. 130) on knowledge as an ele- 
 ment of an employer's liability to an injured servant; (33 Am. St. Rep. 707) 
 on master's duty to furnish safe place and appliances. 
 
 1 L. R. A. 700, FORD v. UNITED STATES MUT. ACCI. RELIEF CO. 148 
 
 Mass. 153, 19 N. E. 169. 
 Extent of disability requisite to recovery of insurance. 
 
 Cited in Commercial Travelers' Mut. Acci. Asso. v. Springsteen. 23 Ind. App. 
 662, 55 N. E. 973, holding substantial disability sufficient, though insured 
 able to perform minor duties of occupation; Rayburn v. Pennsylvania Casualty 
 Co. 141 N. C. 434, 54 S. E. 283, holding person not entitled to accident in- 
 surance where he was able to perform the same services, and was drawing 
 the same pay after the injury as before. 
 
 Cited in note (38 L. R. A. 532) on what constitutes total disability of in- 
 sured. 
 Conditions in policy. 
 
 Cited in note (9 L. R. A. 685) on restrictions in policy as to occupation 
 and employment. 
 
173 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 702 
 
 Distinguished in Wood v. Massachusetts Mut. Acci. Asso. 174 Mass. 223, 54 
 N. E. 541, holding dated policy could not be construed to renew former policy 
 expiring at prior date, though application read to "continue insurance." 
 Classification of risks. 
 
 Cited in note (13 L. R. A, 264) on accident insurance; classification of haz- 
 ards. 
 
 1 L. R. A. 702, FOX v. BOSTON & M. R. CO. 148 Mass. 220, 19 N. E. 222. 
 Damage received on connecting line, on through contract. 
 
 Cited in St. Louis, I. M. & S. R. Co. v. Deshong, 63 Ark. 449, 39 S. W. 260, 
 holding that market at destination, and not at point of connection, governs meas- 
 ure of damages; St. Louis, I. M. & S. R. Co. v. Coolidge, 73 Ark. 115, 67 
 L.R.A. 557, 108 Am. St. Rep. 21, 83 S. W. 333, 3 A. & E. Ann. Cas. 582, 
 on the liability of connecting carriers for loss through concurrent negligence; 
 Wliitnack v. Chicago, B. & Q. R. Co. 82 Neb. 470, 19 L.R.A.(N.S.) 1017, 130- 
 Am. St. Rep. 692, 118 N. W. 67, holding initial carrier liable for freezing of 
 car of potatoes where the caretaker was prevented from accompanying it, 
 by the carriers' act, though the freezing did not occur till the car was in 
 hands of other carrier. 
 
 Cited in footnotes to International & G. N. R. Co. v. Tisdale, 4 L. R. A. 545, 
 which holds liability of connecting carrier ^for delay excused by violent strike 
 of employees; Taffe v. Oregon R. & Nav. Co. 58 L. R. A. 187, which holds in- 
 dorsement on bill of lading of point of destination beyond end of system does 
 not render carrier liable for failure of connecting line to carry "in fastest 
 passenger train service," according to stipulation; Union State Bank v. Fre- 
 mont, E. & M. Valley R. Co. 59 L. R. A. 939, which upholds right of carrier 
 to limit liability for transportation of goods over its own line; Kansas City, 
 F. S. & M. R. Co. v. Washington, 69 L.R.A. 65, which holds initial carrier 
 checking baggage to destination on through ticket liable for loss on connecting 
 line. 
 
 Cited in notes (9 L. R. A. 836) on excuse for delay in transportation; (11 
 L. R. A. 616) on act of God as defense; (4 L. R. A. 376) on delivery to con- 
 necting carrier; (2 L. R. A. 252) on distinction in liability between carriers 
 of goods and carriers of passengers; (19 L.R.A. (N.S.) 1013) on liability of 
 goods carrier for loss on connecting line, due to its own negligence; (31 
 L.R.A. (N.S.) 82) on liability of connecting carrier for loss beyond own line. 
 Liability of carrier for goods lost. 
 
 Cited in note (22 Am. St. Rep. 452) on liability of carrier for goods lost. 
 I .i.s- of perishable goods by freezing or other-wise. 
 
 Cited in footnotes to Pierce v. Southern P. Co. 40 L. R. A. 350, which 
 holds loss by freezing not within exemption from liability for loss "arising 
 out of responsibility as master over its agents or servants incident to ship- 
 ment;" New York, P. & N. R. Co. v. Cromwell, 49 L. R. A. 462, which holds 
 railroad company liable for loss to perishable goods caused by insufficient equip- 
 ment of refrigerator cars leased by it. 
 Loss by delay. 
 
 Cited in Nelson v. Great Northern R. Co. 28 Mont. 327, 72 Pac. 642, holding 
 carrier receiving sheep for transportation with knowledge of snow blockade, 
 not known to shipper, cannot plead such blockade as excuse for delay: Clark 
 v. American Exp. Co. 130 Iowa, 260, 106 N. W. 642, on the delay in delivering 
 goods as conversion. 
 
1 L.R.A. 702] L. R. A. CASES AS AUTHORITIES. 174 
 
 Proximate cause. 
 
 Cited in Hurley v. Packard, 182 Mass. 218, 65 N. E. 64, holding employee not 
 liable to master for loss from cancelation of order due to employee's delay 
 in transmitting same. 
 
 Cited in note (31 L.R.A.(N.S.) 1133) on delaying run of logs as proximate 
 cause of loss from high water, wind or other similar cause. 
 Measure of damages, for breach of contract of carriage. 
 
 Cited in St. Louis, I. M. & S. R. Co. v. Coolidge, 73 Ark. 117, 67 L.R.A. 
 557, 108 Am. St. Rep. 21, 83 S. W. 333, 3 A. & E. Ann. Cas. 582, holding the 
 measure of damages for delay in transporting goods is the difference between 
 the market value of the goods, at the time and place when they should have 
 been delivered, and w r hen they were delivered, with interest; Leavitt v. Fiber- 
 loid Co. 196 Mass. 446, 15 L.R.A.(N.S.) 865, 82 N. E. 682, on the measure of 
 damages for breach of warranty. ' 
 
 1 L. R. A. 704, NUSSBAUM v. NORTHERN INS. CO. 37 Fed. 524. 
 Change of title or possession as vitiating policy. 
 
 Cited in footnote to State Ins. Co. v. Schreck, 6 L. R. A. 524, which holds 
 policy insuring unspecified personal property to certain amount not avoided 
 by chattel mortgage thereafter executed, but extinguished before loss. 
 
 Cited in notes (38 L. R. A. 565 )^ on mortgage as effecting change of title 
 or interest in insured property; (9 L. R. A. 627) on clause of forfeiture for 
 sale of insured property. 
 Deed for security of debt as creating lien. 
 
 Cited in Re Moore, 146 Fed. 189, on a deed given as security for debt only 
 as creating merely a lien. 
 
 1 L. R. A. 708, BROCKWAY v. PATTERSON, 72 Mich. 122, 40 N. W. 192. 
 
 Action against sureties on bond to enforce judgment in Brockway v. Petted, 
 79 Mich. 620, 7 L. R. A. 740. 
 Civil damage act. 
 
 Cited in Judson v. Parry, 38 Wash. 39, 80 Pac. 194, holding one injured by 
 accidental discharge of a revolver during a saloon fight between intoxicated 
 persons, may maintain an action against the saloon keeper who caused the 
 intoxication, under the statute. 
 
 Cited in notes (3 L. R. A. 327) on damages for causing death by sale of in- 
 toxicating drinks; (10 L. R. A. 80) on decisions under liquor laws of Mich- 
 igan; (13 L.R.A. (N.S.) 1161) on necessity that intoxication be proximate 
 cause of injury to support recovery under civil-damage act; (85 Am. St. Rep. 
 450) on liability of liquor sellers for acts of intoxicated persons. 
 Death as injury to means of support. 
 
 Followed in Gran v. Houston, 45 Neb. 826, 64 N. W. 245, holding liability 
 of sureties on liquor dealer's bond for "all damages," to extend to loss of sup- 
 port by death of husband; Gardner v. Day, 95 Me. 563, 50 Atl. 892, holding li- 
 quor dealer liable for loss of support by death of husband by reason of in- 
 toxication. 
 
 'Cited in American Surety Co. v. State, 46 Ind. App. 132, 91 N. E. 624, 
 folding that saloon-keeper's death does not discharge liability of his surety. 
 
 Cited in note (7 L. R. A. 301) on action by wife for damages for injury to 
 Tier means of support. 
 Computing damages. 
 
 Cited in Merrimane v. Miller, 157 Mich. 285, 25 L.R.A.(N.S.) 588, 118 N. 
 
175 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 712 
 
 W. 11, holding that in computing damages by death of husband, the mortality 
 
 tables are competent evidence. 
 
 Natural and probable result of Intoxication. 
 
 Approved in Eddy v. Court right, 91 Mich. 268, 51 N. W. 887, holding saloon- 
 keeper liable to mother for drowning of son while intoxicated; Thomas v. Dans- 
 by, 74 Mich. 402, 41 N. W. 1088, holding saloonkeeper liable to wife for broken 
 leg received by husband at hands of intoxicated man; McXary v. Blackburn, 
 180 Mass. 143, 61 N. E. 885, upholding refusal of court to instruct jury that 
 liquor dealer was only liable for proximate and "necessary" result of sale of 
 liquor to son of plaintiff. 
 
 Cited in Currier v. McKee, 99 Me. 367, 59 Atl. 442, 3 A. & E. Ann. Cas. 57, 
 holding that a saloon keeper was liable for death of son of plaintiff, where the 
 son while intoxicated was killed by another to protect himself from assault 
 by the son; Bistline v. Key Bros. 134 Iowa, 181, 13 L.R.A.(N.S.) 1165, 111 N. 
 W. 422, ]3 A. & E. Ann. Cas. 196; Dice v. Sherberneau, 152 Mich. 604, 16 
 L.R.A. (X.S.) 767, 116 N. W. 416, holding that under the civil damage law, 
 in an action by the wife for damages arising from the suicide of the husband 
 while intoxicated, it is not essential to show that intoxication was the cause 
 of the suicide. 
 
 Cited in footnote to Gage v. Harvey, 43 L. R. A. 143, which holds theft of 
 money from pockets of intoxicated party not damage within contemplation of 
 statute. 
 
 Limited in Dennison v. Van Wormer, 107 Mich. 463, 65 N. W. 274, holding 
 saloonkeeper not liable for loss of support by reason of arrest and conviction 
 for burglary of intoxicated person. 
 Legality of sale aa affecting: liability. 
 
 Cited in Bell v. Zelmer, 75 Mich. 72, 42 N. W. 606, suggesting that liability 
 of sureties upon liquor dealer's bond arises only in case of unlawful sale. 
 
 Evidence as to legality of sale. 
 
 Cited in Doty v. Postal, 87 Mich. 148, 49 N. W. 534, holding habit of person 
 to become intoxicated admissible in action on bond of liquor dealer selling to him. 
 Effect of negligence of intoxicated person. 
 
 Cited in Wright v. Treat, 83 Mich. 115, 47 N. W. 243, holding negligence of 
 intoxicated person immaterial in action by his wife on liquor dealer's bond. 
 
 Proof of habits of injured man. 
 
 Cited in Eastwood v. Klamm, S3 Xeb. 550, 120 N. W. 149, holding that it 
 was not error to admit evidence of the husband's character while intoxicated, 
 or his ability to work as affected by the injury, in action by wife against 
 saloon keeper. 
 Disqualification of juror by prejudice. 
 
 Followed in People v. Wheeler, 96 Mich. 4, 55 N. W. 371, holding juror who 
 thinks he is prejudiced against all persons selling liquor, legally or illegally, 
 disqualified, although, after prompting, he states that he would not be preju- 
 diced in a trial of rights at law. 
 
 1 L. R. A. 712, POOL v. ANDERSON, 116 Ind. 88, 18 N. E. 445. 
 Implied contract by party signing in blank before issue. 
 
 Followed in Moorman v. Wood, 117 Ind. 148, 19 N. E. 739, holding such ac- 
 commodation indorser discharged by assignment of judgment on note, the 
 judgment having become lien on land of maker; De Pauw v. Bank of Salem, 
 126 Ind. 555, 10 L. R. A. 47, 25 N. E. 705, 26 N. E. 151, holding indorsee dis- 
 charged by failure to give notice of dishonor. 
 
 Cited in Roanoke Grocery & Mill. Co. v. Watkins, 41 W. Va. 789, 24 S. E. 
 
1 L.R.A. 712] L. R. A. CASES AS AUTHORITIES. 176 
 
 612, holding parol evidence admissible to determine indorser's liability as orig- 
 inal maker, guarantor, or indorser; Roads v. Webb, 91 Me. 414, 64 Am. St. 
 Rep. 246, 40 Atl. 128, holding implied contract prima facie only, and rebuttable 
 by proper evidence. 
 
 Cited in footnote to National Bank v. Dorset Marble Co. 2 L. R. A. 428, which 
 holds one indorsing in blank prima facie liable as maker. 
 
 Cited in notes (18 L.R.A. 35) on liability of stranger who indorses com- 
 mercial paper before delivery; (14 Am. St. Rep. 794, 72 Am. St. Rep. 682, 683) 
 on effect of indorsement by stranger before- delivery. 
 Ron-negotiable instrument. 
 
 Cited in Oyler v. McMurray, 7 Ind. App. 649, 34 N. E. 1004, holding accom- 
 modation indorser bound by stipulation in note waiving defense of extension 
 of time to maker; Woody v. Haworth, 24 Ind. App. 638, 57 N. E. 272, hold- 
 ing such indorsement by partnership an "indebtedness" of firm within meaning 
 of dissolution agreement imposing it upon one member. 
 
 Cited in footnote to Witty v. Michigan Mut. L. Ins. Co. 8 L. R. A. 365 r 
 which holds that blanks for amount and place of payment in body of note do not 
 render instrument non-negotiable where figures appear at top of paper and 
 signature at bottom. 
 Indorsement as warranty of payment. 
 
 Followed in Hoffman v. Hollingsworth, 10 Ind. App. 355, 37 N. E. 960 r 
 holding indorser liable on inland bill of exchange payable at bank, after dis- 
 honor and due notice. 
 
 Cited in Matchett v. Anderson Foundry & Mach. Works, 29 Ind. App. 209, 94 
 Am. St. Rep. 272, 64 N. E. 229, holding indorser of non-negotiable note not lia- 
 ble where holder fails to use due diligence in collecting from maker. 
 Indorser's right to waive presentment and notice of nonpayment. 
 
 Followed in Pape v. Randall, 18 Ind. App. 59, 47 N. E. 530. holding present- 
 ment and notice of nonpayment unnecessary to fix indorser's liability, when 
 waived. 
 
 1 L. R. A. 715, THOMAS v. STEWART, 117 Ind. 50, 18 N. E. 505. 
 Subrogation of snrety to rights of creditor. 
 
 Approved in Opp v. Ward, 125 Ind. 243, 21 Am. St. Rep. 220, 24 N. E. 974,. 
 holding guarantor on lease paying judgment for rent entitled to recover same 
 from surety on appeal bond; Zimmerman v. Gaumer, 152 Ind. 562, 53 N. E. 829, 
 holding surety not entitled to enforce judgment in which he is codefendant, prior 
 to adjudication of suretyship; Young v. Stevens, 28 Ind. App. 656, 63 X. E. 721, 
 holding surety, codefendant in creditor's judgment against principal, bound 
 by adjudication therein as to validity of mortgage by principal; Hawker v. 
 Moore, 40 W. Va. 52, 20 S. E. 848, setting aside fraudulent conveyance by- 
 cosurety and subjecting property to lien of half the amount of judgment for 
 which he was liable by contribution. 
 
 Cited in Hubbard v. Security Trust Co. 38 Ind. App. 159, 78 N. E. 79, 
 holding that a surety on a delivery bond is subrogated to the rights of the 
 judgment creditor as against receiver of judgment debtor, where surety is com- 
 pelled to pay bond. 
 
 Cited in note (68 L.R.A. 550) on extinction of judgments against principals 
 by sureties' payment. 
 Xotice of suretyship as affecting equities. 
 
 Distinguished in Frank v. Traylor, 130 Ind. 148, 16 L. R. A. 119, 29 N. R. 
 486, holding judgment assigned to surety, though codefendant therein, gives- 
 
177 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 71 
 
 prior equity in land subject thereto, over subsequent judgment in hands of pur- 
 chaser without notice. 
 
 1 L. R. A. 717, WISCONSIN RIVER LOG DRIVING ASSO. v. D. F. COM- 
 
 STOCK LUMBER CO. 72 Wis. 464, 40 N. W. 146. 
 Who is owner. 
 
 Cited in Keith v. Maguire, 170 Mass. 212, 48 N. E. 1090, holding that one 
 who stores goods in his own name is "owner" in proceeding for sale to pay 
 storage, requiring notice; Merrill R. & Lighting Co. v. Merrill, 119 Wis. 254, 
 96 N. W. 686, holding land leased by railway company for five years "owned'* 
 within meaning of taxation statute. 
 Driving intermixed log*. 
 
 Cited in E. W. Backus Lumber Co. v. Scanlon-Gipson Lumber Co. 78 Minn. 
 442, 81 N. W. 216, holding compensation for driving logs of necessity, because 
 intermingled, could be recovered. 
 
 Cited in footnote to New Orleans & N. R. Co. v. McEwen, 38 L. R. A. 134, 
 which holds party towing logs not liable for loss occasioned by uncontrollable 
 events. 
 
 Act authorizing driving of logs. 
 
 Cited in East Hoquiam Boom & Logging Co. v. Neeson, 20 Wash. 149, 54 Pae. 
 1001, holding act authorizing corporation to charge for services in sluicing 
 logs through dam and to impress lien on them therefor valid. 
 Stream as highway. 
 
 Cited in footnote to Olive v. State, 4 L. R. A. 33, which holds stream not 
 public highway, as matter of law, because suitable for floating logs. 
 
 Cited in notes (3 L.R.A. 610) on navigable waters as public highways; (70 
 L.R.A. 279) on use of navigable stream. 
 
 1 L. R. A. 719, NELSON v. HARRINGTON, 72 Wis. 591, 7 Am. St. Rep. 900, 40 
 
 N. W. 288. 
 Who is a physician. 
 
 Cited in State v. Mylod, 20 R. I. 640, 41 L. R. A. 430. 40 Atl. 753, holding 
 Christian Scientist, by praying and giving book on Christian Science, was not 
 engaged in "practice of medicine:" Kansas City v. $aird, 92 Mo. App. 208, 
 holding Christian Scientist not a physician within meaning of ordinance. 
 
 Cited in note (98 Am. St. Rep. 757, 758) on practice of clairvoyance. 
 Dnty of physician. 
 
 Cited in Allen v. Voje, 114 Wis. 22, 89 N. W. 924, holding physician liable 
 for departing from usual and long-established mode of treatment; Whitesell v. 
 Hill, 101 Iowa, 636, 37 L. R. A. 839, 70 N. W. 750, holding physician required 
 to exercise ordinary skill of physicians in similar localities; Martin v. Court- 
 ney, 75 Minn. 258, 77 N. W. 813, holding allopathic physician's treatment of 
 disease should be tested by treatment of that school; Force v. Gregory, 63 Conn. 
 169, 22 L. R. A. 345, 38 Am. St. Rep. 371, 27 Atl. 1116, holding homeopathic 
 physician should be judged by the usual and established method of his school ; 
 Barney v. Pinkham, 29 Neb. 352, 26 Am. St. Rep. 389, 45 N. W. 694, holding 
 veterinary surgeon only bound to use skill of those engaged in that calling; 
 Longan v. Weltmer, 180 Mo. 333, 64 L. R. A. 973, 79 S. W. 655, holding magnetic 
 healer liable for injuries caused by treatment of patient, if he undertakes to 
 cure patient's malady ; Baker v. Hancock, 29 Ind. App. 460, 63 N. E. 323, holding 
 specialist in treatment of cancer must possess degree of knowledge and skill 
 usually possessed by physicians holding themselves out as such specialists. 
 L.R.A. Au. Vol. I. 12. 
 
1 L.R.A. 719] L. R. A. CASES AS AUTHORITIES. 178 
 
 Cited in notes (37 L. R. A. 837) on the care and skill a physician or 
 surgeon must exercise is that of his own school; (37 L. R. A. 83.)) on what are 
 proper care and skill which a physician or surgeon must exercise. 
 Malpractice. 
 
 Cited in Wurdemann v. Barnes, 92 Wis. 208, 66 N. W. Ill, holding coun- 
 terclaim for malpractice by physician not sustained by evidence; Grainger v. 
 Still, 187 Mo. 214, 70 L.R.A. 55, 85 S. W. 1114, holding that by proving that 
 defendant treated plaintiff for hip dislocation and violently wrenched the liga- 
 ments, a prima facie case of malpractice is shown; Rylander v. Laursen, 124 
 Wis. 6, 102 X. W. 341, on the usage of others in the same business as affecting 
 test of care in tort actions. 
 
 Cited in notes (14 L. R. A. 429) on liability for malpractice of physicians 
 serving gratuitously or employed by third party; (2 L. R. A. 588) on physi- 
 cians and surgeons; liability for neglect of duty; (11 L. R. A. 700) on liability 
 of physician for negligent treatment and want of skill; (93 Am. St. Rep. 668) 
 on liability of physicians and surgeons for negligence and malpractice. 
 Expert ^vi tiiess. 
 
 Cited in Longan v. Weltmer, 180 Mo. 333, 64 L.R.A. 973, 103 Am. St. Rep. 
 573, 79 S. W. 655, holding physicians who did not hold themselves out as 
 magnetic healers were competent witnesses as to whether the treatment which 
 the plaintiff underwent was proper. 
 Counsel's comment on failure to call \vitness. 
 
 Cited in Holtz v. State, 76 Wis. 109, 44 N. W. 1107, holding testimony explain- 
 ing reason for not calling witnesses proper to forestall comment upon their ab- 
 sence; Lunsford v. Dietrich, 93 Ala. 572, 30 Am. fSt. Rep. 79, 9 So. 308. and Ala- 
 bama G. S. R. Co. v. Frazier, 93 Ala. 50, 30 Am. St. Rep. 28, 9 So. 303, holding 
 exception to argument of counsel not available on appeal. 
 Pleading; canse of action for tort arising out of contract. 
 
 Cited in Rideout v. Milwaukee, L. S. & W..R. Co. 81 Wis. 238, 51 X. W. 439, 
 holding that complaint stated cause of action ex dcttcto, where it alleged that 
 negligence in carriage of stock caused injury; Lawton v. Waite, 103 Wis. 254, 
 45 L. R. A. 620, 79 N. W. 321, holding complaint in tort sufficient, which 
 alleges plaintiff a passenger and recites acts that constitute negligence; Lane 
 v. Boicourt, 128 Ind. 421, 25 Am. St. Rep. 442, 27 N". E. Ill, holding that action 
 for malpractice may be on contract; Nelson v. Great Northern R. Co. 28 Mont. 
 312, 72 Pac. 642, holding that contract may be pleaded as inducement in ac- 
 tion for negligence in transportation of stock; Cowan v. Western U. Teleg. Co. 
 122 Iowa, 385, 64 L. R. A. 550, 98 N. W. 281, holding action for negligence 
 in delivery of telegram not changed to action ex contract u by pleading con- 
 tract as inducement; Miller v. Mintum, 73 Ark. 187, 83 S. W. 918, holding 
 that an action against a physician for malpractice sounds in tort though the 
 defendant promised skilful treatment; Boehrer v. Juergens & A. Co. 133 Wis. 
 430, 113 N. W. 655, on the sufficient statement of a cause of action. 
 
 1 L. R. A. 725, CLARKE v. PROVIDENCE, 16 R. I. 337, 15 Atl. 765, 766. 
 Private rights in public lands and waters. 
 
 Cited in Mowry v. Providence, 16 R. I. 423, 16 Atl. 511, holding that city 
 could not be enjoined from encroaching on promenade or cove basin; Shively v. 
 Bowlby, 152 U. S. 20, 38 L. ed. 339, 14 Sup. Ct. Rep. 548, holding donee of 
 land claim has no title below high-water mark; People ex rel. Moloney v. Kirk. 
 162 111. 153, 53 Am. St. Rep. 277, 45 N. E. 830, holding act to alienate sub- 
 merged lands valid; Stanwood v. Maiden, 157 Mass. 18, 16 L. R. A. 592, 31 N. 
 

 179 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 725 
 
 E. 702, holding that damages would not lie for discontinuing part of a street; 
 State ex rel. Johnson v. Deer Lodge, 19 Mont. 585, 49 Pac. 147, holding prop- 
 erty not taken for public use by vacation of public road; Woodcliff Land 
 Improv. Co. v. New Jersey Shore Lime R. Co. 72 X. J. L. 138, 60 Atl. 44, 
 holding that the title of party receiving grant of lands under public streams 
 is as absolute as the grant imports; Providence v. Comstock, 27 R. I. 552, 
 65 Atl. 307, holding that one owning land on the cove has no riparian rights 
 where the land is separated from the cove by other land. 
 
 Cited in notes (40 L.R.A. 605) on right of owner of upland to access to 
 navigable water; (23 Eng. Rul. Cas. 186) on ownership of riparian owner to 
 thread of stream. 
 Of abntters and adjacent owners to parks and public grronnds. 
 
 Cited in East Chicago Co. v. East -Chicago, 171 Ind. 662, 87 N. E. 17, holding 
 that persons living or owning land near a park have no vested right in such 
 public park and can not complain of a sale thereof. 
 
 Cited in footnote to Douglass v. Montgomery, 43 L. R. A. 376, holding that 
 one with unobstructed view of park can maintain action to prevent its destruc- 
 tion. 
 
 Distinguished in Davenport v. Buffington, 46 L. R. A. 380, 38 C. C. A. 457, 
 D7 Fed. 238, holding Indian nation could not sell to private persons land 
 it had dedicated to a town for park, after acceptance and use; Rowzee v. Pierce, 
 75 Miss. 858, 40 L. R. A. 404, footnote p. 402, 65 Am. St. Rep. 625, 23 So. 307, 
 holding that donors of land for certain public use may enjoin city authorities 
 from putting it to other public uses. 
 Title to lands under public waters. 
 
 Cited New York, N. H. & H. R. Co. v. Horgan, 25 R. I. 411, 56 Atl. 179, 
 holding that in the state the title to land under tide waters is in the general 
 assembly; Providence v. Comstock, 27 R. I. 553, 65 Atl. 307, holding that the 
 lands under tide waters were owned by the city. 
 Right of fishery. 
 
 Cited in Payne & Butler v. Providence Gas Co. 31 R. I. 321, 77 Atl. 145, 
 Ann. Cas. 1912 B, 65, holding that law providing for leasing of land covered by 
 public waters for private oyster bed does not violate constitutional right of 
 fishery. 
 
 Cited in notes (9 L. R. A. 807. 60 L. R. A. 501) on right to fish: (39 L. R. A. 
 583) on governmental control over right of fishery; (60 L. R. A. 519) on shell 
 fisheries. 
 Dedication for public use. 
 
 Cited in footnotes to Sturmer v. County Court, 36 L. R. A. 300, which holds 
 land long used as public square must be considered as dedicated; Archer v. 
 Salinas City, 16 L. R. A. 145, which holds land dedicated as park by record- 
 ing map so designating it, and selling land according to map; Campbell v. 
 Kansas City, 10 L. R. A. 593, which holds that city can prevent use of land 
 for graveyard, dedicated for that purpose. 
 
 Cited in notes (13 L. R. A. 252) on dedication of lands for public parks; 
 (6 L. R. A. 261) on estate created by dedication of land to public use. 
 Authority of legislature. 
 
 Cited in Henry v. Cherry, 30 R. I. 30, 24 L.R.A.(N.S.) 991, 73 Atl. 97, on 
 the authority of the legislature with regard to private rights. 
 Over parks. 
 
 Cited in Clingman v World's Columbian Exposition, 3 111. C. C. 462, hold- 
 
1 L.R.A. 725] L. R. A. CASES AS AUTHORITIES. 180 
 
 ing that the legislature can authorize a municipality to change use of, or sell 
 lands owned in fee, for park purposes. 
 
 Cited in notes (25 L.R.A. (N.S. ) 988) on what use of squares, parks, or 
 commons is consistent with purpose of dedication; (27 L.R.A. (N.S.) 940) on 
 power of legislature to control use to which property taken for park or square 
 may be put. 
 
 1 L. R. A. 728, WESTERN U. TELEG. CO. v. COOPER,' 71 Tex. 507, 10 Am. 
 
 St. Rep. 772, 9 S. W. 598. 
 Mental suffering- as element of damage. 
 
 Cited in Reese v. Western U. Teleg. Co. 123 Ind. 304, 7 L. R. A. 587, 24 N. E. 
 163; Young v. Western U. Teleg. Co. 107 N. C. 378, 9 L. R. A. G72, 22 Am. 
 St. Rep. 883, 11 S. E. 1044; Western U. Teleg. Co. v. Gavin.. 30 Tex. Civ. App. 
 155, 70 S. W. 229, holding that damages for mental anguish for failure to 
 deliver telegram promptly are recoverable; Bierhaus v. Western U. Teleg. 
 Co. 8 Ind. App. 251, 34 N. E. 581, holding telegraph company liable for all 
 damages naturally and proximately growing out of breach of duty for failure 
 to deliver telegram; Western U. Teleg. Co. v. Henderson, 89 Ala. 519, 18 Am. St_ 
 Rep. 148, 7 So. 419, holding nondelivery of telegram proximate cause of men- 
 tal anguish; Renihan v. Wright, 125 Ind. 545, 9 L. R. A. 517, 21 Am. St. Rep.. 
 249, 25 N. E. 822, holding recoverable, damages for mental suffering caused 
 by not safely keeping corpse; Western U. Teleg. Co. v. Lovett. 24 Tex. Civ. App. 
 85, 58 S. W. 204; Pacific Exp. Co. v. Black, 8 Tex. Civ. App. 366. 27 S. W^ 
 830; Missouri P. R. Co. v. IMartino. 2 Tex. Civ. App. 643, 18 S. W. 1066; Pull- 
 man Palace Car Co v. Trimble, 8 Tex. Civ. App. 337, 28 S. W. 96; Western U. 
 Teleg. Co. v. Stratemeier, 6 Ind. App. 134, 32 X. E. 871, holding sympa- 
 thetic mental distress not element of damages; St. Louis, A. & T. R. Co. v.. 
 Sandal, 3 Tex. App. Civ. Cas. (Willson) 453, holding damages for mental an- 
 guish and physical pain caused by nondelivery of telegram recoverable; West- 
 ern U. Teleg. Co. v. Church, 57 L. R. A. 909, holding pain in confinement, pro- 
 longed by absence of physician through nondelivery of message, recoverable; 
 Willson v. Northern P. R. Co. 5 Wash. 627, 32 Pac. 468, holding that passen- 
 ger expelled from car may recover for humiliation and mental pain: Western 
 U. Teleg. Co. v. Burris, 179 Fed. 94, on the right to recover mental damage 
 alone for failure to deliver telegram; Postal Teleg. & Cable Co. v. Beal. 159" 
 Ala. 253, 48 So. 676, holding that damages for mental pain and suffering 
 were recoverable for failure to promptly deliver telegram to the mother 
 notifying her that her son was badly injured, where he was deprived thereby 
 of her care; Western U. Teleg. Co. v. Reid, 120 Ky. 235, 70 L.R.A. 291, 85 S. W. 
 117], holding that there can be no recovery for mental pain and suffering of 
 parent because of failure to deliver telegram summoning medical aid to a sick 
 child; Western U. Teleg. Co. v. Church, 3 Neb. (Unof.) 34, 57 L.R.A. 007, 90 
 X. W. 878, holding damages for mental pain and suffering caused by failure to 
 deliver telegram are recoverable, where the urgency of the message is known 
 to both parties; Barnes v. Western U. Teleg. Co. 27 Xev. 445. 65 L.R.A. 670, 
 103 Am. St. Rep. 776, 76 Pac. 931, 1 A. & E. Ann. Cas. 346.. holding that 
 damages are recoverable for mental suffering caused by a tort whether in 
 connection with physicial injury or not; Gulf, C. & S. F. R. Co. v. Overton, 
 101 Tex. 586, 19 L.R.A.(X.S.) 503, HO S. W. 736, holding that there can be 
 no recovery for mental suffering merely resulting from sympathy for another's 
 mental or physical pain; Dayvis v. Western U. Teleg. Co. ]39 X. C. 9], 51 S. E. 
 898 (dissenting opinion), on the same point. 
 
 Cited in footnote to Western U. Teleg. Co. v. Church, 57 L. R. A. 905, which. 
 
181 L. R. A. CASES AS AUTHORITIES. [1 L.E.A. 728 
 
 holds damages for nondelivery of message promptly may include allowance for 
 pain and suffering during physician's absence. 
 
 Cited in notes (2 L. R. A. 767) on damages for injury to feelings caused by 
 neglect of duty to deliver message; (13 L. R. A. 860) on damages for mental 
 anguish alone are recoverable; (19 L.R.A.(N.S-) 500) on right to recover for 
 mental suffering on account of another's mental or physical suffering. 
 
 Distinguished in Chapman v. Western U. Teleg. Co. 88 Ga. 764, 17 L. R. A. 
 431, 30 Am. St. Rep. -183, 15 S. E. 901; Western U. Teleg. Co. v. Rogers, 68 
 Mi>s. 756, 13 L. R. A. 862, 24 Am. St. Rep. 300, 9 So. 823; International Ocean 
 Teleg. Co. v. Saunders, 32 Fla. 441, 21 L. R. A. 814, 14 So. 148; Western U. 
 Teleg. Co. v. Wood, 21 L. R. A. 713, 6 C. C. A. 453, 13 U. S. App. 317, 57 Fed. 
 480; Kester v. Western U. Teleg. Co. 55 Fed. 603; Connell v. Western U. Teleg. 
 Co. 116 Mo. 49, 20 L. R. A. 178, 38 Am. St. Rep. 575, 22 S. W. 345, holding 
 damages for mental anguish for failure to promptly deliver telegram not re- 
 coverable. 
 Miscarriage of tvoman by reason of act. 
 
 Cited in Sullivan v. Old Colony Street R. Co. 197 Mass. 517, 125 Am. St. Rep. 
 378, 83 N. E. 1091, holding that damages for mental suffering could not be based 
 on the death of a child born prematurely fourteen months after the accident and 
 so born because of the nervous condition of the woman. 
 
 Cited in note (32 L.R.A. 144) on elements of damages in recovery for mis- 
 carriage. 
 
 Distinguished in Morris v. St. Paul C. R. Co. 105 Minn. 279, 17 L.R.A.(N.S.) 
 601, 117 N. W. 500, holding that when an injury to a woman results in a mis- 
 carriage she is entitled to such damages as will compensate her for the pain and 
 suffering caused by the miscarriage but not for pain and suffering caused by loss 
 of the child; Prescott v. Robinson, 74 X. H. 464, 17 L.R.A.(N.S.) 597, 124 Am. 
 St. Rep. 987, 69 Atl. 522, holding that a pregnant woman injured by the negli- 
 gent act of another may recover damages for mental distress before the child's 
 birth, due to her fear that it would be deformed in consequence of her injury, 
 but not for anxiety after its birth. 
 Dm > of telegraph company in delivery of message. 
 
 Cited in Western U. Teleg. Co. v. Drake, 13 Tex. Civ. App. 576, 36 S. W. 786, 
 holding that telegraph messenger's duty required going to residence to make 
 delivery; Western U. Teleg. Co. v. Mitchell, 91 Tex. 459, 40 L. R. A. 211, 66 
 Am. St. Rep. 906, 44 S. W. 274, holding that duty of telegraph company does 
 not require delivery to wife of sendee; Western U. Teleg. Co. v. Newhouse, 6 
 Ind. App. 427, 33 N. E. 800. holding jury should determine whether diligence in 
 delivery of telegram was shown by leaving it at place of address. 
 
 Cited in notes (9 L. R. A. 669) on degree of diligence required of telegraph 
 company in delivery of message; (15 L. R. A. 129) on duty of telegraph company 
 to find person addressed; (14 Am. St. Rep. 564) on rights, duties and liabilities 
 of telegraph companies; (27 Am. St. Rep. 923, 925) on duty of telegraph company 
 to find addressee. 
 
 Distinguished in Sweet v. Western U. Teleg. Co. 139 Mich. 332, 102 N. W. 850, 
 5 A. & E. Ann. Cas. 730, holding that where a telegram is sent to one person in 
 care of another, delivery to the latter is sufficient. 
 Mcnsnre of damages for failure to deliver message. 
 
 Cited in Hughes v. Western U. Teleg. Co. 79 Mo. App. 138, holding measure of 
 damages for failure to deliver cipher message such as may be supposed to have 
 been in contemplation of both parties; Western U. Teleg. Co. v. Chouteau, 28 
 Ok'.a. 087, L.R.A.(X.S.) , 115 Pac. 879, holding that damages are not recov- 
 
1 L.R.A. 728] L. R. A. CASES AS AUTHORITIES. 182 
 
 erable for mental distress alone, from delay in delivering telegram; Southwestern 
 Teleg. & Teleph. Co. v. Solomon, 54 Tex. Civ. App. 311, 117 S. W. 214, holding 
 that death of woman in childbirth is not proximate result of imperfect telephone 
 service preventing subscriber from obtaining physician. 
 
 Cited in notes (11 L.R.A.(N.S.) 499) on anxiety as element of damage for non- 
 delivery, or delay of telegram; (11 L.R.A.(N.S.) 1149) on liability for continued' 
 physical suffering of sender because of negligence in transmission of telegram-, 
 (66 Am. St. Rep. 875) on damages for mental suffering from delay in delivering 
 telegram; (117 Am. St. Rep. 314, 319) on elements of damages recoverable for 
 failure to transmit and deliver telegrams; (38 L. ed. U. S. 883, 886) on damages 
 for error in telegraph message, or failure to deliver. 
 
 Distinguished in S. A. & A. R. Co. v. Gwynn, 4 Tex. App. Civ. Gas. (Willson) 
 p. 345, holding action for damages might include fee for medical attendance- 
 Joinder of liuslia ml and wife in personal injury action. 
 
 Cited in note (28 Am. St. Rep. 79) on joinder of husband and wife in actioiv 
 for personal injury to wife. 
 
 1 L. R. A. 730, GULF, C. & S. F. R. CO. v. JOHNSON, 71 Tex. 619, 9 S. W. G02.. 
 Property riuht in article capable of being used for u:i in !>l i n.. 
 
 Cited in footnotes to Edwards v. American Express Co. 63 L.R.A. 467, which 
 holds owner's property right in machine not destroyed by mere fact that it was 
 so constructed that it could be used for gambling; Board of Trade v. L. A. Kin- 
 sey Co. 69 L.R.A. 59, which holds property right in price quotations gathered by^ 
 board of trade not destroyed by fact that a large per cent of the business done- 
 consists of gambling transactions. 
 
 1 L. R. A. 732, NORTHERN P. R. CO. v. RAYMOND, 5 Dak. 356, 2 Inters, 
 
 Com. Rep. 321, 40 N. W. 538. 
 Taxing- gross earnings. 
 
 Cited in footnote to Cumberland & P. R. Co. v. State, 52 L. R. A. 764,. 
 which holds tax on gross receipts of railroad, proportioned to mileage in state,, 
 not void. 
 
 Cited in notes (57 L. R. A. 59) on taxation on corporate franchises in the 
 United States; (57 L. R. A. 65) on taxation of railroad and other companies; 
 (60 L. R. A. 670, 673) on corporate taxation and the commerce clause. 
 
 Limited in Northern P. R. Co. v. Barnes, 2 N. D. 351, 51 N. W. 386, hold- 
 ing act of March 9, 1883, taxing all gross earnings within territory, valid as to 
 local traffic. 
 
 1 L. R. A. 736, REED v. MORTON, 24 Neb. 760, 8 Am. St. Rep. 247, 40 N. YV. 
 
 282. 
 Alteration of instrument left blank. 
 
 Cited in Dobbin v. Cordiner, 41 Minn. 167, 4 L. R. A. 336, 16 Am. St. Rep. 
 683, 42 N. W. 870, holding married woman estopped to deny validity of deed 
 executed by her with grantee in blank; Mahoney v. Salsbury, 83 Neb. 493, 131 
 Am. St. Rep. 647, 120 N. W. 144, holding that a deed executed and delivered to 
 the grantee, leaving the name of the grantee blank, with an agreement that 
 another's name might be inserted or the grantee if not, was valid. 
 
 Cited in footnote to Richards v. Day, 23 L. R. A. 601, which holds signer 
 of blank bond not liable in action between original parties where blank 
 is filled up with unauthorized terms. 
 
 Cited in notes (6 L.R.A. 470) on effect of alteration of written instrument; 
 
183 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 744 
 
 (86 Am. St. Rep. 108) on unauthorized alteration of written instruments; (5 
 Eng. Rul. Cas. 182) on authority to fill up blanks in instrument. 
 Ratification of ng-ent's act. 
 
 Cited in Ormsby v. Johnson, 24 S. D. 498, 124 N. W. 436, holding grantor by 
 acceptance of purchase money estopped to question validity of deed with grantee's 
 name left blank, as against grantee whose name was inserted by grantor's agent. 
 
 Cited in footnote to Thompson v. New South Coal Co. 62 L. R. A. 551, which 
 holds principal not estopped from asserting invalidity of unauthorized con- 
 tract by agent for sale of land, by accepting portion of purchase money. 
 
 1 L. R. A. 738, UNITED STATES ex rel. POLLOK v. HALL, 7 Mackey, 14. 
 
 When mandamus will lie. 
 
 Cited in footnotes to People ex rel. Daley v. Rice, 14 L. R. A. 644, which 
 holds mandamus will lie to compel state canvassing board to disregard illegal 
 return ; State ex rel. Fleming v. Crawford, 14 L. R. A. 253, which holds sec- 
 rotary of state may be compelled by mandamus to countersign commission 
 signed by governor; Territorial Insane Asylum v. Wolfley, 8 L. R. A. 188, which 
 holds mandamus will not lie by trustee of asylum against governor of terri- 
 tory to compel him to sign warrant for funds; Biggs v. McBride, 5 L. R. A. 115, 
 which holds mandamus not proper proceeding to try title to office; Port Royal 
 Min. Co. v. Hagood, 3 L. R. A. 841, which holds mandamus will not lie to 
 compel board of agriculture to mine prosphate rock. 
 
 Cited in notes (3 L. R. A. 265) on mandamus issues only for public purposes; 
 (7 L. R. A. 105) on mandamus to enforce a public duty; (11 L. R. A. 763) on 
 mandamus will not issue to control executive discretion; (27 L. R. A. 85) 
 on right to inspect public records. 
 
 1 L. R. A. 742, JACKSON v. COMBS, 7 Mackey, 608. 
 Duty to disclose facts. 
 
 Cited in Chicora Fertilizer Co. v. Dunan, 91 Md. 160, 50 L. R. A. 406, footnote 
 p. 401, 46 Atl. 347; holding silence, with exclusive knowledge of material facts 
 affecting value of subject-matter of contract, not fraudulent concealment in 
 absence of fiduciary relation. 
 
 Cited in footnote to Opie v. Pacific Invest. Co. 56 L. R. A. 778, which holds 
 indorser of mortgage note not bound to disclose to mortgagee value of property 
 in sale of mortgage to third party through indorser as agent. 
 
 Cited in note (4 L. R. A. 483) on silence as fraudulent concealment. 
 
 1 L. R. A. 744, CHICAGO & N. W. R. CO. v. DEY, 2 Inters. Com. Rep. 325, 
 35 Fed. 866. 
 
 Supplemental bill to obtain temporary injunction against enforcement of 
 alleged evasive schedule in 38 Fed. 656. 
 Jurisdiction of suit agrainst railroad commissioners. 
 
 Followed in Chicago, St. P. M. & O. R. Co. v. Becker, 35 Fed. 885, retaining 
 jurisdiction of suit to restrain enforcement of schedule for switching rates; 
 Clyde v. Richmond & D. R. Co. 57 Fed. 437, retaining suit by receivers of 
 railroad company against commissioners to enjoin enforcement of freight trans- 
 portation schedule. 
 
 Cited in Western U. Teleg. Co. v. Myatt, 98 Fed. 355, holding Federal ju- 
 risdiction to extend to injunction staying proceeding before state "court of 
 visitation," since latter not legally a court. 
 
 Cited in note (2 L. R. A. 195) on authority of railroad commissioners. 
 
1 L.R.A. 744] L. R. A. CASES AS AUTHORITIES. 184 
 
 Delegation of legislative authority to commissions and administrative 
 officers. 
 
 Cited in United States v. Ormsbee, 74 Fed. 209, upholding delegation to 
 Secretary of War of power to prescribe suitable regulations for use of canala; 
 Chicago, B. & Q. R. Co. v. Jones, 149 111. 378, 24 L. R. A. 141, 4 Inters. Com. 
 Rep. 688, 41 Am. St. Rep. 278, 37 N. E. 247, upholding delegation to commission 
 of power to fix freight and warehouse rates; Dowling v. Lancashire Ins. Co. 92 
 Wis. 75, 31 L. R. A. 116, 65 N. W. 738, holding delegation to insurance commis- 
 sioner of preparation and adoption of standard policy void; McWhorter v. Pen- 
 sacola & A. R. Co. 24 Fla. 474, 2 L. R. A. 510, footnote p. 504, 12 Am. St. Rep. 
 220, 5 So. 129, holding delegation of authority to establish schedule for pas- 
 senger and freight rates valid; State v. Atlantic Coast Line R. Co. 56 Fla. 623, 
 32 L.R.A.(N.S.) 650, 47 So. 969; Michigan C. R. Co. v. Michigan R. Commission, 
 160 Mich. 363, 125 N. W. 549, holding railroad commission act valid; King v. 
 Concordia F. Ins. Co. 140 Mich. 268, 103 N. W. 616, 6 A. & E. Ann. Cas. 87, hold- 
 ing a law unconstitutional because of delegation of legislative power, which left 
 to a commission the right to prescribe a standard insurance policy; St. Louis, I. 
 M. & S. R. Co. v. Neal, 83 Ark. 598, 98 S. W. 958, holding that the delegation of 
 power to a commission to determine a standard height for a draw-bar but not 
 giving it power to enforce the same, is not a delegation of legislative power; 
 Oregon R. & Nav. Co. v. Campbell, 173 Fed. 971, holding a statute creating a 
 railroad commission to determine and fix rates was not unconstitutional where 
 there was a right of appeal to the courts; Railroad Commission v. Central R. Co. 
 95 C. C. A. 117, 170 Fed. 238, Reversing 161 Fed. 925, holding a statute was not 
 void as a delegation of legislative power which gave the state railroad commis- 
 sion power to change rates fixed by statute, from time to time as conditions 
 changed; State v. Atlantic Coast Line R. Co. 56 Fla. 623, 47 So. 969, holding 
 that a delegation of merely administrative powers to a commission is not invalid 
 as a delegation of legislative power, where it involves the exercise of no amount 
 of discretion; Southern R. Co. v. Meltor, 133 Ga. 290, 65 S. E. 665; State ex rel. 
 Taylor v. Missouri P. R. Co. 76 Kan. 474, 92 Pac. 606, holding that a board 
 which is merely administrative within the bounds prescribed by law has no 
 legislative power delegated to it; Saratoga Springs v. Saratoga Gas, Electric 
 Light & P. Co. 191 N. Y. 145, 18 L.R.A.(N.S.) 723, 83 N. E. 693, 14 A. & E. Ann. 
 Cas. 606, Reversing 112 App. Div. 203, 107 N". Y. Supp. 341, holding a commission 
 which is to fix the reasonable maximum rate, within the limits prescribed by law, 
 "has no legislative powers delegated to it. 
 
 Cited in footnotes to Chicago, B. & Q. R. Co. v. Jones, 24 L. R. A. 141, which 
 holds delegation of power to fix freight rates constitutional, where schedule is 
 only prima facie evidence of reasonableness; State ex rel. Tompkins v. Chi- 
 cago, St. P. M. & 0. R. Co. 47 L. R. A. 569, which holds commissioners au- 
 thorized, under "general supervision," to compel erection and maintenance of 
 station at point where needed. 
 
 Cited in notes (18 L.R.A.(N.S.) 714) on power of legislature to delegate to 
 commission right to fix rates of public service corporation; (32 L.R.A. (N.S.) 
 640, 648) on delegation of power to regulate carriers. 
 Legality of imposed schedule of rates. 
 
 Followed in Chicago, B. & Q. R. Co. v. Dey, 38 Fed. 663, holding validity of 
 schedule to be tested by application to entire traffic, and not by effect as ap- 
 plied merely to local traffic in connection with other system of charges outside 
 state. 
 
 Approved in Spring Valley Waterworks v. San Francisco, 82 Cal. 314, 6 L. 
 R. A. 759, 16 Am. St. Rep. 116, 22 Pac. 910, holding void an ordinance arbitrarily 
 
185 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 744 
 
 and without investigation reducing water rates to point below profit making; 
 San Diego Water Co. v. San Diego, 118 Cal. 582, 38 L. R. A. 468, 62 Am. St. Rep. 
 261, 50 Pac. 633, holding valid ordinance reducing rates so as to yield 3 per 
 cent income; Buffalo v. Collins Bakery Co. 24 Misc. 748, 53 N. Y. Supp. 968, 
 holding void ordinance prescribing weight of 5 cent loaf of bread; Pensacola. 
 & A. R. Co. v. State, 25 Fla. 330, 3 L. R. A. 668, 2 Inters. Com. Rep. 530, 5 So. 
 833, holding void schedule of rates which fail to pay operating expenses. 
 
 Cited in Re Arkansas Rate Cases, 187 Fed. 304, holding that there is no pre- 
 sumption of reasonableness arising from fact that rates are no lower than those 
 in other states; Prentis v. Atlantic Coast Line R. Co. 211 U. S. 229, 53 L. ed. 160,. 
 29 Sup. Ct. Rep. 67, holding that whether rates are unreasonable and confisca- 
 tory depends upon the valuation of the property, the income derived from the 
 rate, and the proportion between the two, which is a matter of fact to be de- 
 termined by court; Spring Valley Water Co. v. San Francisco, 165 Fed. 677, on 
 the finality of the rates fixed by water commissioners; Re Arkansas R. Rates, 
 168 Fed. 732, holding that what constitutes a reasonable rate must depend upon- 
 the facts of each case, and cannot be determined without reference to the interests- 
 of the public; Chicago, R. I. & P. R. Co. v. State, 24 Okla. 372, 24 L.R.A.(N.S.) 
 395, 103 Pac. 617, holding that the railroad commissioners could not require the 
 railroad to keep an operator at a station where not necessary for safe movement 
 of trains and where commercial receipts are inadequate; Coal & Coke R. Co. v. 
 Conley, 67 W. Va. 197, 67 S. E. 613, holding two cent passenger rate act void, 
 where it reduces net earnings on passenger and freight traffic to less than two 
 and a half per cent, on money invested; Morgan's L. & T. R. & S. S. Co. v. Rail- 
 road Commission, 127 La. 669, 53 So. 890, holding freight rate on sugar cane 
 unreasonable, where it would be barely sufficient to pay actual cost of moving 
 cane. 
 
 Cited in notes (9 L. R. A. 755) on state railroad commission; regulation 
 of rates; (33 L. R. A. 179) on state power to regulate carrier's rates; (3 L. R. 
 A. 238) on discrimination against foreign railroads; (44 L. ed. U. S. 418) on rea- 
 sonableness of state limitation of railroad rates; (62 Am. St. Rep. 295, 298, 299,. 
 300) on reasonableness of rates. 
 
 Disapproved in Southern P. R. Co. v. Railroad Comrs. 78 Fed. 261, hoi "ing- 
 unconstitutional traffic regulation which reduces rates below capacity to earn, 
 fair return on investment. 
 Injunctions. 
 
 Cited in Capital City Gaslight Co. v. Des Moines, 72 Fed. 839, holding pre- 
 liminary injunction against enforcement of ordinance, prima facie reasonable,, 
 will not issue in absence of proof of practically irreparable injury to plain- 
 tiff; Southern P. R. Co. v. Railroad Comrs. 78 Fed. 249, holding injunction prop- 
 er which does not operate to stop criminal prosecution; People ex rel. Alexan- 
 der v. District Court, 29 Colo. 231, 68 Pac. 242, holding injunction cannot issue 
 against state board of assessors to prevent performance of executive duties, on 
 ground of alleged unconstitutionality of statute creating same; Spring Valley 
 Waterworks v. San Francisco, 124 Fed. 608, holding water-rate payers bound 
 by injunction in action against municipal corporation to restrain enforcement of 
 ordinance reducing such rates; St. Louis & S. F. R. Co. v. Allen, 181 Fed. 722, 
 holding that Federal court cannot enjoin action in state court to enforce penalty 
 under void state railroad commission law. 
 
 Cited in footnote to Lowery v. Pekin, 51 L. R. A. 301, which holds injunction' 
 proper remedy to prevent city from taking unauthorized possession of property 
 for public highway. 
 
1 L.R.A. 744] L. R. A. CASES AS AUTHORITIES. 186 
 
 cited in notes (11 L. R. A. 208) on when equity will relieve by injunction; 
 (6 L. R. A. 90) on injunction to restrain threatened wrong. 
 
 Distinguished in Railroad Comrs. v. Synins Grocery Co. 53 Kan. 215, 35 Pac. 
 217, holding shipper not entitled to enjoin board of commissioners from estab- 
 lishing discriminating rates injurious to his business. 
 Validity of penal laws. 
 
 Cited in Katzman v. Com. 140 Ky. 127, 30 L.R.A.(N.S.) 523, 140 Am. St. Rep. 
 359, 130 S. W. 990, holding act making sale of opium by druggists without 
 physician's prescription penal not void for uncertainty. 
 Penalty for "unreasonable" rate. 
 
 Followed in Winsor Coal Co. v. Chicago & A. R. Co. 52 Fed. 723, holding charge 
 at highest rate allowed by statute reasonable where commissioners had not 
 undertaken to establish another. 
 
 Cited in Tozer v. United States, 4 Inters. Com. Rep. 247, 52 Fed. 919, holding 
 interstate commerce act, 3, providing penalty for undue preferences, void 
 for uncertainty; Louisville & N. R. Co. v. Com. 99 Ky. 138, 33 L. R. A. 212, 
 59 Am. St. Rep. 457, 35 S. W. 129, holding void for uncertainty penalty imposed 
 upon railroad for collecting more than just and reasonable rate of toll; Waters- 
 Pierce Oil Co. v. Texas, 212 U. S. 109, 53 L. ed. 429, 29 Sup. Ct. Rep. 220, holding 
 an anti-trust law was not too vague or indefinite which prohibited acts which 
 "tend" or "are unreasonably calculated" to restrain trade or prevent competition. 
 
 Cited in note (33 L. R. A. 209) on definiteness and certainty in rates fixed by 
 penal statute. 
 
 Constltntionality of statute making prescribed rates prima facie reason- 
 able. 
 
 Cited in footnotes to Missouri, K. & T. R. Co. v. Simonson, 57 L. R. A. 
 765, which holds unconstitutional, statute making specification of weights in 
 bill of lading conclusive evidence of their correctness; Baltimore & 0. S. W. 
 R,. Co. v. Read, 56 L. R. A. 468, which holds unconstitutional, statute preventing 
 defendant from setting up decisions of foreign state in defense to action aris- 
 ing there. 
 Kinds of business subject to rate reg-nlation. 
 
 Cited in notes (6 L.R.A. (N.S. ) 835) on kinds of business affected with public 
 interest subjecting them to regulation and control in respect to rates or prices. 
 
 1 L. R. A. 754, DUNN v. BROWN COUNTY AGRI. SOC. 46 Ohio St. 93, 15 Am. 
 
 St. Rep. 556, 18 N. E. 496. 
 Status of agricultural societies. 
 
 Cited in Markley v. State, 12 Ohio C. C. N. S. 83, 31 Ohio C. C. 227, holding 
 that a county agricultural society is a private corporation; Smith Agri. Chemical 
 Co. v. Calvert, 7 Ohio N. P. N. S. 107, 18 Ohio S. & C. P. Dec. 586, holding that 
 the state board of agriculture is a private corporation; Rahe v. Comrs. (Cayuhoga 
 Co.) 5 Ohio C. C. N. S. 100, 26 Ohio C. C. 494, on county or board of county 
 commissioners as being a public corporation. 
 Liability of <inasi civil corporation for negligrence. 
 
 Cited in World's Columbian Exposition Co. v. France. 38 C. C. A. 489, 96 Fed. 
 694, holding absolute exemption clause in agreement with exhibitor valid, as to 
 injuries not occurring through negligence of company's agents; Volk v. Board of 
 Education, 7 Ohio N. P. 164, holding board of education liable for damage to 
 adjoining property injured by negligent construction of schoolhouse; Thornton v. 
 Maine State Agricultural Soc. 97 Me. 114, 94 Am. St. Rep. 488, 53 Atl. 979, 
 holding agricultural society giving fair liable for negligent shooting of one stand- 
 
187 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 757 
 
 ing outside grounds by person at target practice within; Logan v. Agricultural 
 Soc. 150 Mich. 541, 121 X. W. 485, holding an agricultural society, under the 
 same obligation when it invites the public to seats upon platforms constructed 
 for viewing of races that a private corporation would be. 
 
 Cited in footnote to Hart v. Washington Park Club, 29 L. R. A. 492, which 
 holds fair grounds company not liable for injuries caused by runaway horse in 
 grounds, unless horse under exclusive management of company's servants. 
 
 Cited in notes (25 Am. St. Rep. 369) on corporate liability for negligence; 
 (35 L.R.A.(N.S.) 244) on immunity of state institutions from suits for negli- 
 gence. 
 DIM > of keepers of public resorts and exhibitions. 
 
 Cited in Larkin v. Saltair Beach Co. 30 Utah, 100, 3 L.R.A.(N.S.) 987, 116 Am. 
 St. Rep. 818, 83 Pac. 686, 8 A. & E. Ann. Cas. 977", holding a keeper of a bathing 
 beach bound to act with promptness, and make every reasonable effort to search 
 for, and, if possible recover those known to be missing; Williams v Mineral City 
 Park Asso. 128 Iowa, 38. 1 L.R.A.(N.S.) 431, 111 Am. St. Rep. 184, 102 N. W. 
 783, 5 A. & E. Ann. Cas. 924, holding owners and managers of exhibitions and 
 places of amusement are held to the exercise of reasonable care for safety of 
 their patrons. 
 
 Cited in note (3 L.R.A.(N.S.) 1133) on liability of one maintaining place of 
 public amusement for safety of patrons. 
 
 1 L. R. A. 757, DALY v. MORGAN, 69 Md. 460, 16 Atl. 287. 
 Discrimination in taxation. 
 
 Cited in Wells v. Hyattsville, 77 Md. 141, 20 L. R. A. 93, 26 Atl. 357, holding 
 statute exempting all personal property from taxation void; Joestiug v. Balti- 
 more, 97 Md. 591, 55 Atl. 456, reaffirming validity of act against increasing rate 
 of taxation for city purposes on land annexed to city until streets are opened 
 through same; Baltimore v. Gail, 106 Md. 687, 68 Atl. 282, on the validity of 
 partial exemption of property brought into limits of Baltimore City; Baltimore 
 v. Rosenthal, 102 Md. 304, 62 Atl. 579, on the exemption from taxation of terri- 
 tory annexed to Baltimore City; State v. Lawrence, 79 Kan. 244, 100 Pac. 485, 
 holding the principle of equality is satisfied by making local taxation equal and 
 uniform as to all property within the limits of the taxing district; Miller v. 
 Wicomico County, 107 Md. 442, 69 Atl. 118, holding the legislature has power 
 to create separate taxing districts within a county or city, provided rate of assess- 
 ment and taxation be equal and uniform as to all property within taxing district. 
 
 Cited in footnotes to Com. v. Brown, 28 L. R. A. 110, which holds method of 
 valuation immaterial if requirement for equality and uniformity is satisfied; 
 High School Dist. No. 137 v. Lancaster, 49 L. R. A. 343, which holds both valua- 
 tion and rate of taxation required by Constitution to be uniform; Nathan v. 
 Spokane County, 65 L.R.A. 337, which holds property liable to taxation under 
 general laws of state not exempt because returned for taxation for same years 
 in another state. 
 
 Cited in notes (19 L. R. A. 81) on power of legislature to exempt from taxa- 
 tion; (34 L. R. A. 193) on validity of exemption or discrimination in favor 
 of rural property within municipality. 
 
 Distinguished in Curtis v. Mactier, 115 Md. 395, 80 Atl. 1066, holding void, 
 act denying village authorities power to tax property east of designated line. 
 tive power to change city limits. 
 
 Cited in footnote to Winona v. School Dist. No. 82, 3 L. R. A. 46, which holds 
 
1 L.R.A. 757] L. R. A. CASES AS AUTHORITIES. 18* 
 
 title to municipal property within district added to another municipality by 
 statute remains in former corporation. 
 
 Cited in notes (11 L. R. A. 780) on extension of city limits; (27 L. R. A. 744) 
 on power of legislature to annex territory to municipalities. 
 Local power of taxation. 
 
 Cited in Bonsai v. Vellott, 100 Md. 500, 69 L.R.A. 917, 60 Atl. 593, holding no 
 power of taxation or other means of raising revenue for the construction and 
 maintenance of roads, is vested in the counties, excepting what the state gives 
 them. 
 Taxation by local authorities as delegation of legislative power. 
 
 Cited in Baltimore & E. S. R. Co. v. Spring, 80 Md. 518, 27 L. R. A. 74, 31 
 Atl. 208, holding void, statute authorizing county commissioners to issue county 
 bonds to raise fund for payment of private claims of certain residents; Hooper 
 v. Creager, 84 Md. 256, 35 L. R. A. 209, 35 Atl. 1103 (dissenting opinion), ma- 
 jority holding that power of appointment delegated to mayor cannot be de- 
 stroyed by city council under power to regulate appointments. 
 Legislative povrer over municipalities generally. 
 
 Cited in Sandoz v. Sanders, 325 La. 401, 51 So. 436, holding the constitutional 
 requirement of a two-thirds vote to change parish lines, has no application to the 
 creation of new parishes. 
 
 Cited in note (48 L. R. A. 465) on power of legislature to impose burdens 
 upon municipalities and to control their local administration and property. 
 Sufficiency of title of statute. 
 
 Cited in Steenken v. State, 88 Md. 712, 42 Atl. 212, holding provision for 
 stevedore's bond in act of 1898, chap. 505. void by reason of omission from title. 
 
 1 L. R. A. 767, FARMERS PHOSPHATE CO. v. GILL, 69 Md. 537, 9 Am. St. 
 
 Rep. 443, 16 Atl. 214. 
 Passage of title. 
 
 Cited in Hopkins v. CoAven, 90 Md. 162, 47 L. R. A. 126, 44 Atl. 1062, holding- 
 that tender to bank of amount of draft attached to bill of lading in consignor's 
 name does not vest title in vendee; Keller v. State, (Tex. Crim. Rep.) 1 L.R..A. 
 (N.S.) 494, 87 S. W. 669, holding a sale and shipment C. O. D. is completed where 
 the order for intoxicating liquor is received and filled; Creelman Lumber Co. v. 
 De Lisle,, 107 Mo. App. 628, 82 S. W. 205, holding weighing or measuring is not 
 essential to a completed sale, except when necessary to define the subject- 
 matter. 
 
 Cited in footnotes to Anderson v. Crisp. 18 L. R. A. 419. which holds that pay- 
 ment of purchase price for quantity of "merchantable brick" from certain kiln 
 does not pass title before segregation; Conrad v. Fisher, 8 L. R. A. 147, which 
 holds vendor's lien not devested by constructive delivery so long as goods remain 
 in actual custody of vendor or his servant; H. M. Tyler Lumber Co. v. Charlton, 
 55 L. R. A. 301, which holds no change in title to lumber by acceptance of offer 
 to sell, where no inspection, change of possession, or new insurance, nor notice 
 to mill owner of change of title; Feeley v. Boyd, 65 L.R.A. 943, which holds 
 immediate delivery followed by actual and continued change of possession of 
 fruit in bins shown by purchaser sending representative the same evening to take 
 possession, and sending man the next morning to prepare for shipment. 
 
 Cited in notes (22 L. R. A. 425) on imposition of conditions in sale as in- 
 dicating intention to retain title; (17 L. R. A. 179) on vesting of title on delivery 
 to carrier; (26 L.R.A.(N.S.) 2, on sufficiency of selection or designation of goods 
 
189 L- R- A. CASES AS AUTHORITIES. [1 L.R.A. 771 
 
 sold out of larger lot; (23 Eng. Rul. Cas. 294) on time of passing of title to 
 specific or ascertained goods sold. 
 
 Distinguished in Lochnar v. State, 111 Md. 666, 76 Atl. 586, holding place of 
 delivery is place of sale where order for liquor is accepted to be delivered to 
 purchaser in a certain place. 
 Effect of nonpayment of price. 
 
 Cited in notes (13 L.R.A.(N.S.) 704, on right of purchasers of, or creditors 
 levying on, goods sold for cash, but delivered without payment; (22 Am. St. Rep. 
 867) on who must bear loss where property sold is not paid for. 
 By transfer of bill of lading:. 
 
 Cited in Murphy v. American Can Co. 106 Md. 196, 67 Atl. 17, holding an 
 acceptance of a bill of lading by the consignee or the endorsee thereof when it 
 has been issued to the order of another person, amounts to an acceptance of 
 the goods represented by it. 
 
 1 L. R. A. 771, STATE ex rel. ATTY. GEN. v. MADISON STREET R. CO. 72 
 
 Wis. 612, 40 N. W. 487. 
 Franchises. 
 
 Cited in State ex rel. Fullerton v. DCS Moines City R. Co. 135 Iowa, 706, 109 
 N. W. 867, holding the right to construct and operate a street railway or other 
 similar public utility is a franchise derived from the state; La Crosse v. La 
 Crosse Gas & Electric Co. 145 Wis. 418, 130 N. W. 530, on distinction between 
 corporate franchises. 
 Creation of franchise uy municipal ordinance. 
 
 Cited in Ashland v. Wheeler, 88 Wis. 616, 60 N. W. 818, holding franchise 
 attempted to be created by town validated by municipal ordinance ratifvinw and 
 adopting action of town council; State ex rel. Milwaukee Street R. Co. v. An- 
 derson, 90 Wis. 565, 63 N. W. 746, holding cars, rails, poles, etc., acquired in 
 pursuance of municipal franchise, personal property subject to assessment for 
 taxation in district of company's principal office; State ex rel. Rose v. Superior 
 Court, 105 Wis. 673, 48 L. R. A. 827, 81 N. W. 1046, holding that injunction can- 
 jiot issue to prevent passage of ordinance creating railway franchise in Milwaukee; 
 Allen v. Clausen, 114 Wis. 250, 90 N. W. 181, holding void municipal ordinance 
 conferring franchise to use streets, on individuals not previously having right 
 "to construct, maintain, and operate street railway;" State ex rel. Atty. Gen. v. 
 Portage City Water Co. 107 Wis. 445, 83 N. W. 697, holding that grant by ordi- 
 nance of right to construct and maintain waterworks system within municipal 
 limits creates forfeitable franchise; State ex rel. Boycott v. La Crosse. 107 Wis. 
 668, 84 N. W. 242, holding ordinance adopting only portion of "city improve- 
 ments" chapter of general city charter law void for material omissions; Little 
 Rock R. & Electric Co. v. North Little Rock, 76 Ark. 64, 88 S. W. 826 (dissenting 
 opinion), on creation of franchise by municipal ordinance; Manitowoc v. Mani- 
 towoc & N. Traction Co. 145 Wis. 22, 140 Am. St. Rep. 1056, 129 N. W. 925, 
 holding that city may refuse to grant interurban railway right to run cars 
 over streets. 
 
 Cited in note (50 L. R. A. 143) on privilege of using streets for railway aa 
 contract within constitutional provision against impairment. 
 
 Distinguished in National Foundry & Pipe Works v. Oconto Water Co. 52 Fed. 
 35, holding franchise created by legislature subject to municipality's permission 
 to grant easement in streets ; Belleville v. Citizens' Horse R. Co. 152 111. 186, 
 26 L. R. A. 685, 38 N. E. 584, Reversing 47 111. App. 410, holding ordinance con- 
 
1 L.R.A. 771] L. R. A. CASES AS AUTHORITIES. 190 
 
 senting to use of streets for railway creates only license, revocable by stipulation 
 
 therein. 
 
 Forfeiture of municipal franchise. 
 
 Cited in Wright v. Milwaukee Electric R. & Light Co. 95 Wis. 36, 36 L. R. A. 
 50, 60 Am. St. Rep. 81, 69 N. W. 794. holding failure to operate during nearly 
 five years not presumptive surrender and cancelation of franchise created by 
 ordinance; Galveston & W. R. Co. v. Galveston, 90 Tex. 404, 36 L. R. A. 39, 39 
 S. \Y. 920, holding violation of terms of ordinance creating franchise subject* 
 latter to forfeiture; Palestine Water & P. Co. v. Palestine. 91 Tex. 549, 40 L. R. 
 A. 207, 44 S. W. 814, holding waterworks franchise created by municipal ordi- 
 nance subject to forfeiture for violation of terms; Kaukauna Electric Light Co. 
 v. Kaukauna, 114 Wis. 336. 89 N. W. 542, holding light company's failure to 
 bury wires and paint poles as agreed no defense to city in action for lights fur- 
 nished, being ground for forfeiture of franchise only; People v. Bleeker Street 
 & Fulton Ferry R. Co. 140 App. Div. 616, 125 N. Y. Supp. 1045, holding that 
 under common law, attorney-general could maintain quo warranto to declare for- 
 feiture of corporate franchise. 
 
 Cited in footnote to Illinois Trust & Sav. Bank v. Doud, 52 L. R. A. 481. which, 
 holds failure to exercise all rights under municipal franchise not ground for 
 forfeiture in absence of express requirement. 
 
 Cited in note (36 L. R. A. 35) on enforcement of conditions imposed in mu- 
 nicipal consent to construction of street railway. 
 Regulation of railway. 
 
 Cited in State ex rcl. Wisconsin Teleph. Co. v. Janesville Street R. Co. 87 Wis. 
 78, 22 L. R. A. 763, 41 Am. St. Rep. 23. 57 N. W. 970. upholding ordinance re- 
 quiring supply of necessary safeguards on stringing wires across existing electric 
 wires; State, Cape May, D. B. & S. P. R. Co., Prosecutor, v. Cape May, 59 X. J. 
 L. 403, 36 L. R. A. 655, 36 Atl. 696, holding ordinance limiting speed of electric- 
 cars within municipality reasonable and valid. 
 Admissibility of expert evidence. 
 
 Cited in Fisher v. Waupaca Electric Light & R. Co. 141 Wis. 524. 124 X. W. 
 1005, holding evidence of an expert that the most approved plan of construction 
 required a fender to pick up objects in front of car was competent. 
 
 1 L. R. A. 774, DAVIS v. XUZUM, 72 Wis. 439, 40 X. W. 497. 
 Actionable false representation. 
 
 Cited in Middleton v. Jerdee. 73 Wis. 45, 40 X. W. 629. holding intentional 
 misrepresentation of character and past productiveness of land, deceiving lessee, 
 actionable; The Montreal River Lumber Co. v. Mihills, 80 Wis. 560, 50 N. W. 507. 
 holding recovery impossible except for false representation of existing material 
 fact, relied upon; Castenholz v. Heller. 82 Wis. 34, 51 X. W. 432, upholding re- 
 covery for vendor's intentional misrepresentation of fence as boundary line of 
 land purchased; Gunther v. Ullrich, 82 Wis. 228. 33 Am. St. Rep. 32, 52 N. W. 
 88, holding principal liable for agent's intentional misrepresentation of location 
 of land; Rasmussen v. Reedy, 14 S. D. 23. 84 X'. W. 205, holding vendee examining 
 land may rely on vendor's representation as to boundaries ; Sears v. Stinson, 3 
 Wash. 620, 29 Pac. 205.. holding false representation as to depth of lots with 
 reference to imperfect plat actionable; Matteson v. Rice, 116 Wis. 335, 92 X'. W. 
 1109, holding landlord liable for loss caused by agent's false representations as 
 to fire wall, believed by agent to be true: Freeman v. Lloyd, 43 Wash. 612. 86 
 Pac. 1051, holding if owner undertakes to point out the boundaries of land at 
 all. he must point them out correctly: Standard Mfg. Co. v. Slot. 121 Wis. 18, 
 105 Am. St. Rep. 1016, 98 X. W. 923, holding where a person knowingly or ig- 
 
191 L. R. A. CASES AS AUTHORITIES. [1 L.B,A. 777 
 
 norantly makes a false atatement of a fact in a business transaction, reasonably 
 calculated to deceive and which does in fact deceive, such act is not binding upon 
 the party deceived; Kathan v. Comstock, 140 Wis. 432, 28 L.R.A.(X.S.) 210, 
 122 X. W. 1044, holding one in negotiating with another in contract has a duty 
 to know whereof he speaks or not to speak at all as of his knowledge. 
 
 Cited in footnotes to Xash v. Minnesota Title, Ins. & T. Co. 28 L. R. A. 753 r 
 which holds liability of third person for known false statement not avoidable 
 because not intended to injure; H. W. Williams Transp. Line v. Darius Cole 
 Transp. Co. 56 L. R. A. 939, which holds false, but not fraudulent, representa- 
 tions to induce sale not actionable where sale is accompanied by warranty. 
 
 Cited in notes (2 L. R. A. 743) on requisites to action for false representa- 
 tion; (4 L. R. A. 158, 159; 6 L. R. A. 151) on action for deceit; (6 L. R. A. 219) 
 on tV.lse representations inducing entry into contract; (10 L. R. A. 606) on con- 
 tract obtained by circumvention and deceit; (14 L.R.A. (N.S.) 121) on right of 
 purchaser to land to rely upon representation of seller as to boundaries; (13 Am. 
 St. Rep. 431) on what representations are fraudulent. 
 
 1 L. R. A. 777, MEYER v. BERLAXDI, 39 Minn. 438, 12 Am. St. Rep. 663, 40 
 
 X. W. 513. 
 Imprisonment for debt. 
 
 Cited in note (34 L. R. A. 638) on constitutionality of imprisonment for debt. 
 Necessity of consent to contract, and what constitutes. 
 
 Cited in Hill v. Gill, 40 Minn. 443, 42 N. W. 294, holding that agreement to- 
 convey, requiring vendee to build, supports lien on vendor's interest under con- 
 tract by vendee; Glass v. Freeburg, 50 Minn. 388, 16 L. R. A. 336, 52 X. W. 
 900, sustaining contractor's right to charge owner's lands for labor and .mate- 
 rials used in performing contract; Wheaton v. Berg, 50 Minn. 535, 52 N. W. 926, 
 holding consent cannot be conclusively implied from mere silence; Randolph v. 
 Builders & Painters Supply Co. 106 Ala. 510, 17 So. 721, holding unconstitutional 
 act which makes failure of owner to give written notice prima facie evidence of 
 consent; Missouri, K. & T. R. Co. v. Simonson, 64 Kan. 806, 57 L. R. A. 767, 9- 
 Am. St. Rep. 248, 68 Pac. 653, holding unconstitutional law making specification 
 of weights of goods in railroad bills of lading conclusive as to correctness; Jones 
 v. Great Southern Fireproof Hotel Co. 79 Fed. 481, holding act giving subcon- 
 tractor lien without regard to account between contractor and owner uncon- 
 stitutional. 
 
 Cited in note (23 L.R.A. (N.S.) 619) on power of lessee or vendee to subject 
 owner's interest to mechanics' liens. 
 
 Distinguished in Title Guarantee Co. v. Wrenn, 35 Or. 67, 76 Am. St. Rep. 454,. 
 56 Pac. 271, holding unconstitutional law requiring owner to post notice of non- 
 consent in writing three days after knowledge of construction. 
 Priority between liens. 
 
 Cited in James River Lumber Co. v. Danner, 3 N. D. 472, 57 N. W. 343, and 
 Wimberley v. Mayberry, 94 Ala. 248, 14 L. R. A. 309, 10 So. 157, holding me- 
 chanic's lien superior to prior mortgage only as to what is added by the lienor; 
 Gavr v. Clements, 4 X. D. 562. 02 X. \Y. C40, holding mechanic's lien on thresh- 
 ing engine left in possession of ower superior to that of prior mortgagee; Wright 
 v. Sherman, 3 S. D. 294, 17 L. R. A. 793, 52 X. W. 1093, holding prior chattel 
 mortgage superior to agister's lien for pasturage, unless mortgagee consents. 
 
 Cited in notes (14 L. R. A. 305) on when mechanics' liens are superior ta 
 earlier mortgages; (12 L. R. A. 34) on priority of mechanics' liens over subse- 
 quent liens. 
 
1 L.R.A. 777] L. R. A. CASES AS AUTHORITIES. 192 
 
 Validity of statutes. 
 
 Cited in Leahart v. Deedmeyer, 158 Ala. 299, 48 So. 371, on validity of attor- 
 ney's lien law; Prince v. Neal-Millard Co. 124 Ga. 889, 53 S. E. 761, 4 A. & E. 
 Ann. Cas. 615, holding mechanic's lien law valid; Yazoo & M. V. R. Co. v. Bent, 
 94 Miss. 689, 22 L.R.A.(N.S.) 825, 47 So. 805, holding valid, statute making bill 
 of lading conclusive evidence of receipt of property by carrier. 
 1 n< or.st i t ii t iomilit y nffeciiiij? the whole lavr. 
 
 Cited in Davis v. St. Louis County, 65 Minn. 312, 33 L. R. A. 433, 60 Am. St. 
 Rep. 475, 67 N. W. 997, holding unconstitutional law permitting location of 
 section corners at expense of landowners without their consent; State ex rel. 
 Holt v. Denny, 118 Ind. 476, 4 L. R. A. 77, 21 N. E. 274, holding police and fire 
 department act so interwoven as to wholly fall, part being unconstitutional; 
 Northern P. R. Co. v. Barnes, 2 N. D. 385, 51 N. W. 786 (dissenting opinion), as 
 to unconstitutionality of entire act where unconstitutional part closely connected 
 with other portions. 
 Effect of unconstitutional repealing: act on prior law. 
 
 Cited in Moore v. St. Paul, 61 Minn. 429, 63 N. W. 1087, and St. Paul Foundry 
 Co. v. Wegmann, 40 Minn. 420, 42 N. W. 288, holding unconstitutionality of re- 
 pealing act leaves prior law in force. 
 Sufficiency of verified statement. 
 
 Cited in McGlauflin v. Beeden, 41 Minn. 411, 43 N. W. 86, holding affidavit, for 
 lien failing to show that owner authorized work, insufficient; J. E. Greilick Co. v. 
 Taylor, 143 Mich. 709, 107 N. W. 712, holding insufficient, statement arbitrarily 
 fixing amount due. 
 Supplemental pleading 1 . 
 
 Cited in Lawrence v. Pederson, 34 Wash. 6, 74 Pac. 1011, disallowing, after 
 nonsuit of action to recover commissions for effecting sale optional on purchaser, 
 supplemental complaint alleging payment under option; Cassidy v. Saline County 
 Bank, 7 Ind. Terr. 566, 104 S. W. 829, holding that complaint in action on open 
 account cannot be amended by showing judgment in another state on same cause. 
 
 Cited in footnote to Schwab v. Schwab, 52 L. R. A. 414, which holds facts 
 arising after suit for divorce cannot be introduced by supplemental bill. 
 
 1 L. R. A. 781, RICHARDS v. ATTLEBOROUGH NAT. BANK, 148 Mass. 187, 
 
 19 N. E. 353. 
 Banks and banking:. 
 
 Cited in footnote to Pickle v. People's Nat. Bank, 7 L. R. A. 93, which holds 
 possession -by bank of unindorsed check not presumption of payment. 
 Stock transfers after liquidation begins. 
 
 Cited in Muir v. Citizens' Nat. Bank, 39 Wash. 60, 80 Pac. 1007, holding no 
 transfer of stock may be registered pending final settlement of a bank after 
 voluntary liquidation. 
 
 1 L. R. A. 785, LEWIS v. LYNN INST. FOR SAVINGS, 148 Mass. 235, 12 Am. 
 
 St. Rep. 535, 19 N. E. 365. 
 Relation of bank and depositors. 
 
 Cited in Dickinson v. Leominster Sav. Bank, 152 Mass. 52, 25 N. E. 12, hold- 
 ing that in some aspects savings bank is trustee of depositor; McCarthy v. Provi- 
 dent Inst. for Savings, 159 Mass. 529. 34 X. E. 1073, holding savings bank de- 
 posit may be conveyed in trust and become part of trust estate; People ex rel. 
 Newburgh Sav. Bank v. Peck, 157 N. Y. 57, 51 N. E. 412, holding surplus fund 
 untaxable under statute exempting savings bank "deposits;" People v. Ulster 
 
193 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 794 
 
 County Sav. Inst. 64 Hun, 443, 18 X. Y. Supp. 960, holding court could allow 
 insolvent bank to resume business upon percentage basis of liabilities; Mann v. 
 Carter, 74 N. H. 348, 15 L.R.A.(X.S.) 153, 68 Atl. 130, holding a depositor is 
 a mere creditor of the institution in which her money is deposited and has its 
 situs for purposes of taxation at domicile of owner. 
 
 Cited in notes (7 L. R. A. 93) on banks and banking; (13 L. R. A. 371) on 
 relation between bank officials and depositors. 
 Nature of savings banks. 
 
 Cited in note (105 Am. St. Rep. 730) on general nature of savings banks. 
 Limitation of action. 
 
 ited in Campbell v. Whoriskey, 170 Mass. 67, 48 N. E. 1070, holding action by 
 depositor against person standing in place of savings bank, four years after de- 
 mand, seasonable. 
 
 1 L. R. A. 787, PETTIBOXE v. TOLEDO, C. & ST. L. R. CO. 148 Mass. 411, 19 
 
 N. E. 337. 
 Executory mntual obligation. 
 
 Cited in D. C. Hardy Implement Co. v. South Bend Iron Works, 129 Mo. 230, 
 31 S. W. 599, holding that party to executory contract with partnership may 
 rescind upon withdrawal of partner from firm. 
 .Property which creditor may reach. 
 
 Cited in Amy v. Manning, 149 Mass. 489, 21 N". E. 943, discussing, but not 
 deciding, whether debtors' claims against nonresidents may be reached in equity 
 by creditor; Geer v. Horton, 159 Mass. 261, 34 X. E. 269, holding creditor can- 
 not reach in equity money due from beneficiary association to member; East- 
 ern Electric Cable Co. v. Great Western Mfg. Co. 164 Mass. 276, 41 N. E. 295, 
 holding mere contingent or conjectural demands unreachable by creditors; Snyder 
 "v. Smith, 185 Mass. 62, 69 X. E. 1089, on power to appropriate property under 
 statutes providing for reaching and applying equitable assets in payment of debts. 
 
 Cited in footnote to Harper v. Clayton, 35 L. R. A. 211, which holds unas- 
 signed right of dower unreachable by creditor's bill in absence of statute. 
 Sufficiency of bill and proofs. 
 
 Cited in Wheelock v. Globe Constr. Co. 195 Mass. 461, 81 N". E. 276, holding 
 a bill will not lie to reach and apply equitable assets where there is no evidence 
 to show value of the rights of the respective parties under the agreement; 
 Hoshor-Platt Co. v. Miller, 190 Mass. 287, 76 N. E. 650, holding if bill to reach 
 and apply, in payment of debt, the debtor's property, does not sufficiently show 
 the existence of such property, the bill may be dismissed on demurrer. 
 Debt. 
 
 Cited in Sperry v. Cook, 138 Mo. App. 303, 120 S. W. 654 (dissenting opinion), 
 on construction of the word debt. 
 
 1 L. R. A. 794, CLYDE v. STEAM TRAXSP. CO. 36 Fed. 501. 
 I, leu for work and supplies in home port. 
 
 Cited in The J. E. Rumbell, 148 U. S. 18, 37 L. ed. 349, 13 Sup. Ct. Rep. 498, 
 and The Madrid, 40 Fed. 678, holding home materialman's lien under state statute 
 within admiralty jurisdiction; The H. X. Emilie, 70 Fed. 511, holding state liens 
 on vessels must be enforced within statutory limit; The Willapa, 25 Or. 76, 34 
 Pac. 689, holding state courts cannot enforce liens for vessel supplies furnished 
 in home port; Scatcherd Lumber Co. v. Rike, 113 Ala. 561, 59 Am. St. Rep. 147, 
 21 So. 136, holding Federal courts without jurisdiction to enforce state lien for 
 supplies furnished vessel in home port. 
 L.R.A. Au. Vol. I. 13. 
 
1 L.R.A. 794] L. R. A. CASES AS AUTHORITIES. 194 
 
 Cited in note (70 L.R.A. 358, 409) on maritime lien for supplies furnished in 
 home port. 
 
 1 L. R. A. 795, STATE v. WILSON.. 40 La. Ann. 751, 5 So. 52. 
 Misconduct of jury. 
 
 Cited in note (134 Am. St. Rep. 1058) on misconduct of jurors other than 
 their separation for which a verdict may be set aside. 
 Sufficiency of verdict. 
 
 Cited in Kenney v. Kansas City, P. & G. R. Co. 79 Mo. App. 209, setting aside 
 verdict, meaning not being clearly ascertainable ; Long v. State, 42 Fla. 613, 28 
 So. 855, upholding verdict finding defendant guilty as charged; State v. Preston, 
 4 Idaho, 221, 38 Pac. 694, upholding verdict finding defendant guilty of being a 
 vagrant at time charged; Albritton v. State, 54 Fla. 12, 44 So. 745, holding any 
 words which convey beyond reasonable doubt the meaning and intention of the 
 jury are sufficient, and all fair intendments will be made to support the verdict; 
 State v. Schweitzer, 18 Idaho, 613. Ill Pac. 130, upholding verdict in words. -\ve 
 find defendant guilty of selling by short weights as charged in complaint:'' 
 State v. Gregory, 153 X. C. 648, 69 S. E. 674, holding sufficient, verdict of guilty 
 of receiving goods, knowing them to be stolen, though indictment contained an- 
 other count, where trial was confined to former count alone. 
 
 Cited in footnote to Louisville. X. A. & C. R. Co. v. Lucas, 6 L. R. A. 195, which 
 holds special verdict in which the facts are properly stated not vitiated by omis- 
 sion of mere formal statements. 
 
 Cited in note (137 Am. St. Rep. 966) on sufficiency of verdict in vagrancy case. 
 
 Distinguished in Connelly v. Illinois C. R. Co. 120 Mo. App. 600, 97 S. W. 
 616, holding a verdict uncertain in meaning and incapable of being made certain, 
 in violation of the law, ought not to stand. 
 Application of Idem sonans rnle. 
 
 Cited in Johns v. State, 46 Fla. 154, 35 So. 71, holding the rule idem sonans 
 applicable in construing verdicts. 
 Testimony accompanying bill of exceptions. 
 
 Cited in State v. Seiley, 41 La. Ann. 151, 6 So. 571, holding appellate court 
 may examine evidence on collateral issue to decide question of law relating 
 thereto. 
 
 1 L. R. A. 796, UNITED STATES v. MITCHELL, 36 Fed. 492. 
 Sufficiency of indictment for misuse of mails. 
 
 Cited in Etheredge v. United States, 108 C. C. A. 356, 186 Fed. 441, holding 
 insufficient, indictment alleging the procuring of diamond ring through mails, 
 with intent of not paying therefor. 
 
 1 L. R. A. 797, SHERWOOD v. MOELLE, 36 Fed. 478. 
 Effect of quitclaim deed in chain of title. 
 
 Affirmed in Moelle v. Sherwood, 148 U. S. 21, 37 L. ed. 350, 13 Sup. Ct. Rep. 
 426, holding conveyance by quitclaim raises no presumption of uant of bona fides 
 of purchaser. 
 
 Cited in Meikel v. Borders, 129 Ind. 534, 29 N. E. 29, holding grantee by war- 
 ranty deed in good faith a bona fide purchaser, though grantor held by quit- 
 claim; Schott v. Dosh, 49 Xeb. 195, 59 Am. St. Rep. 531, 68 X. W. 346, holding 
 bona fide purchaser, without notice, entitled to protection of recording act. though 
 deriving title through quitclaim; Downs v. Rich, 81 Kan. 47, 25 L.R.A. (X.S.) 
 
195 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 804 
 
 1039. 105 Pac. 9, denying duty of taker by warranty deed to search records as 
 in case of quit claim grantee. 
 
 Cited in notes (29 L.R.A. 47) on effect of quitclaim deed in chain of title; 
 (105 Am. St. Rep. 862) on same point; (25 L.R.A. (N.S.) 1038) on effect of re- 
 mote quitclaim in chain of title upon rights of subsequent purchaser. 
 
 Distinguished in American Mortg. Co. v. Hutchinson, 19 Or. 350, 24 Pac. 515, 
 holding one whose good faith and want of notice is not shown, deriving title 
 through quitclaim from grantor not in actual or constructive possession, not 
 protected by recording act. 
 
 1 L. R. A. 799. AMERICAN BELL TELEPH. CO. v. CUSHMAN TELEPH. & 
 
 SERVICE CO. 36 Fed. 488. 
 Remedy for infringement of patent. 
 
 Cited in American Bell Teleph. Co. v. Cushman, 57 Fed. 844, sustaining right 
 to injunction against devices previously adjudged to be infringements. 
 Telephone service. 
 
 Cited in notes (5 L.R.A. 162) on telephone company as common carrier; (10 
 Am. St. Rep. 135) on telephone law. 
 
 1 L. R. A. 801, FULLER v. DETROIT F. & M. INS. CO. 36 Fed. 469. 
 Equity jurisdiction of suits against several co-Insurers. 
 
 Cited in American Cent. Ins. Co. v. Landau, 56 N. J. Eq. 523, 39 Atl. 400, 
 holding that to prevent multiplicity of suits, equity court may enjoin actions 
 in law by insured against common insurers; Dixie F. Ins. Co. v. American Con- 
 fectionery Co. Tenn. , 34 L.R.A.(X.S.) 903, 136 S. W. 915, upholding juris; 
 diction of equity of suit to adjust respective liabilities of several insurers of 
 manufacturing plant, where all set up common defense of noneompliance with 
 conditions in policies. 
 
 Distinguished in Mechanics' Ins. Co. v. Hoover Distilling Co. 97 C. C. A. 400, 
 1 73 Fed. 894, where one of numerous insurance companies sought to implead 
 all with insured. 
 Bill against persons contributorily liable. 
 
 Cited in Gulf Compress Co. v. Jones Cotton Co. 157 Ala. 42, 47 So. 251, holding 
 such uncertainty as to liability shown in case of express company and railroad 
 company under joint traffic arrangements as to entitle one damaged to equitable 
 relief against both companies. 
 Insurance; statement of loss. 
 
 Cited in note (7 L. R. A. 81) on fire insurance; provision requiring statement 
 and proof of loss. 
 
 1 L. R. A. 804, ST. LOUIS, I. M. & S. R. CO. v. McCORMICK, 71 Tex. 660, 9 
 
 S. W. 540. 
 Right of action under foreign statute. 
 
 Cited in notes (70 L.R.A. 553) on right of nonresidents to sue foreign cor- 
 porations under foreign statutes; (14 Am. St. Rep. 355) on action to enforce cause 
 of action created by statute of another state; (59 Am. St. Rep. 876) on discretion 
 to decline jurisdiction of transitory causes of action under foreign statutes. 
 Action for death. 
 
 Cited in De Harn v. Mexican Xat. R. Co. 86 Tex. 69, 23 S. W. 381, and Mexican 
 Nat. R. Co. v. Jackson, 89 Tex. 113, 31 L. R. A. 279, 59 Am. St. Rep. 28, 33 S. W. 
 857, holding that court will not adjudicate rights originating under statute ma- 
 terially differing from law of foruru; Celt v. Gulf, C. & S. F. R, Co. 4 Tex. Civ. 
 
1 L.R.A. 804] L. R. A. CASES AS AUTHORITIES. 190 
 
 App. 234, 22 S. W. 1062, holding dissimilar foreign statute will not be enforced 
 in state where action is brought; Dale v. Atchison, T. & S. F. R. Co. 57 Kan. 605, 
 47 Pac. 521, holding that statute giving right of action to persons other than 
 one entitled to recover where action is brought is not enforceable; Slater v. 
 Mexican Nat. R. Co. 194 U. S. 129, 48 L. ed. 904, 24 Sup. Ct. Rep. 581, holding 
 lump sum as damages not recoverable in United States for loss, by negligent 
 killing of husband, of alimony given by Mexican law to wife; McMillan v. Spider 
 Lake Saw Mill & Lumber Co. 115 Wis. 340. 60 L. R. A. 592, 95 Am. St. Rep. 947, 
 91 N. W. 979, holding nonresident alien relatives of deceased not entitled to bene- 
 fit of statute giving right of action for instant death; Mexican C. R. Co. v. 
 Chantry, 69 C. C. A. 454, 136 Fed. 324 (dissenting opinion), on right of action 
 for death, accruing under foreign statutes. 
 
 Cited in notes (15 L. R. A. 584) on right of action for death, accruing under 
 foreign statutes; (56 L. R. A. 202, 205, 206, 208) on conflict of laws as to action 
 for death or bodily injury. 
 
 Distinguished in Evey v. Mexican C. R. Co. 38 L. R. A. 395, 26 C. C. A. 420, 
 52 U. S. App. 118, 81 Fed. 307, holding dissimilarity between statute giving 
 cause of action and lex fori, chiefly in procedure, does not preclude maintenance 
 of action; Texas & P. R. Co. v. Cox, 145 U. S. 605, 36 L. ed. 833, 12 Sup. Ct. Rep. 
 905, holding right to recover for death caused by negligence will be enforced in 
 state giving like right under same facts. 
 
 Disapproved in Anustasahas v. International Contract Co. 51 Wash. 121, 21 
 L.R.A.(X.S.) 270, 130 Am. St. Rep. 1089, 98 Pac. 93, holding nonresident aliens 
 may maintain an action for wrongful death under statutes. 
 
 1 L. R. A. 807, BELVIX v. RICHMOND, 85 Va. 574, 8 S. E. 378. 
 Liability of municipality for negligence. 
 
 Cited in notes (6 L. R. A. 270) on liability of municipality for negligence; (10 
 L.R.A. 474) on liability of municipality for permitting street obstruction; (20 
 L.R.A.(N.S.) 601) on liability of municipality for defects or obstructions in 
 streets. 
 Power of courts. 
 
 Cited in Ex parte Birmingham, 134 Ala. 617, 59 L. R. A. 574, 33 So. 13, holding 
 court may prevent travel in street, the noise of which disturbs proceedings. 
 
 Cited in note (22 L. R. A. 399) on power of courts to provide necessary places 
 and equipment for their business. 
 
 1 L. R, A. 808, BURGESS v. TERRITORY, 8 Mont. 57, 19 Pac. 558. 
 Misconduct of juror. 
 
 Cited in Bradshaw v. Degenhart, 15 Mont, 271, 48 Am. St. Rep. 677, 39 Pac. 
 '.92, holding mere taking of drink by juror not enough to vitiate verdict. 
 
 Cited in note (134 Am. St. Rep. 1035) on misconduct of jurors other than 
 their separation for which a verdict may be set aside. 
 
 Distinguished in State v. Mott, 29 Mont. 301, 74 Pac. 728, holding the court 
 will not interfere unless motion for new trial shows a clear abuse of discretion 
 l>y trial court, where incompetency of a juror is alleged. 
 Rebutting charge of juror's misconduct. 
 
 Cited in State v. Anderson, 14 Mont. 545, 37 Pac. 1, holding affidavit of third 
 person charging use of improper language in jury room offset by sworn denial 
 of juror and six cojurors; State v. Gay, 18 Mont. 81, 44 Pac. 411, and State v. 
 Pepo, 23 Mont. 480, 59 Pac. 721, holding affidavits of jurors competent to rebut 
 charges of their misconduct; State v. Morrison, 67 Kan. 165, 72 Pac. 554, re- 
 fusing to disqualify jurors who denied making disqualifying statements. 
 
397 L. R- A. CASES AS AUTHORITIES. [1 L-R-A. 819 
 
 Estoppel to claim error. 
 
 Cited in State v. Lucey, 24 Mont. 304, 61 Pac. 994, and State v. McClellan, 23 
 Mont. 537, 75 Am. St. Rep. 558, 59 Pac. 924, holding that party cannot complain 
 of instruction requested by himself. 
 Instruction; justifiable homicide. 
 
 Cited in State v. O'Brien, 18 Mont. 11, 43 Pac. 1091, holding instruction that 
 homicide justifiable where reasonable man would, under same circumstances, 
 consider himself in danger, proper ; State v. Hartley, 22 Nev. 362, 28 L. R. A. 
 42, 40 Pac. 372, holding instruction stating rule of law as to self-defense, re- 
 citing only part of facts relied on by defendant, not prejudicial. 
 
 Cited in note (3 L.R.A.(N.S.) 544) on standpoint of determination as to dan- 
 ger and necessity to kill in self-defense. 
 
 State jurisdiction over lands of United States within state. 
 
 Cited in note (17 L. R. A. 721) on state jurisdiction over lands of United 
 States within state. 
 
 Distinguished in State v. Tully, 31 Mont. 383, 78 Pac. 760, 3 A. & E. Ann. Gas. 
 824, holding a military reservation within its boundary never passed by an 
 act of congress granting land to the proposed state of Montana. 
 
 1 L. R. A. 816, GOLDSMITH v. HOLMES, 13 Sawy. 526, 36 Fed. 484. 
 Federal jurisdiction of actions on negotiable instruments. 
 
 Cited in footnote to Wonderly v. Lafayette County, 45 L. R. A. 386, which 
 holds plaintiff's false pretense of ownership, made to give Federal court juris- 
 diction, vitiates judgment. 
 
 Cited in note (12 L. R. A. 683) on right of holders of negotiable instruments 
 to sue in Federal courts. 
 
 Distinguished in Steel v. Rathbun, 42 Fed. 391, holding one buying note "pay- 
 able to order of " and inserting name, a subsequent holder, not entitled to 
 
 sue in Federal court where transferrer could not. 
 Pnrol evidence as to written contract. 
 
 Cited in footnotes to De Pauw v. Bank of Salem, 10 L. R. A. 46, which holds 
 right of accommodation indorser to notice of dishonor not affected by agreement 
 between maker and payee; Brook v. Latimer, 11 L. R. A. 805, which holds ad- 
 iiii>-iMe evidence of contemporaneous parol agreement that payment of note 
 would never be enforced. 
 
 Cited in notes (17 L. R. A. 273) on proof admissible of independent facts and 
 circumstances relative to written contract; (.4 L. R. A. 609) on admissibility 
 of parol evidence relative to written contract; (6 L. R. A. 33) on written con- 
 tracts as evidence. 
 
 1 L. R. A. 819, WOOTEX v. STATE, 24 Fla. 335, 5 So. 39. 
 Instruction as to presumption of innocence. 
 
 Cited in Houston v. State, 24 Fla. 357, 5 So. 48, holding failure to instruct as 
 to presumption of innocence ground for reversal; Woodruff v. State, 31 Fla. 337, 
 12 So. 653, holding instruction as to presumption of innocence sufficient; Long 
 v. State, 42 Fla. 527, 28 So. 775, on proper and sufficient instruction as to pre- 
 sumption of innocence; State v. Wolfley, 75 Kan. 417, 93 Pac. 337, holding a 
 charge on the presumption of innocence as a positive force on the side of the 
 defendant was sufficient. 
 Presumption as to gambling devices. 
 
 Cited in Richardson v. State, 41 Fla, 306, 25 So. 880, holding finding of 
 gambling devices in house not prima facie evidence of use for gambling. 
 
1 L.R.A. 819] L. R. A. CASES AS AUTHORITIES. 198 
 
 Right to seize gambling instruments. 
 
 Cited in footnote to Police Comrs. v. Wagner, 52 L. R. A. 775, holding that 
 police officers may be invested with power to make seizures. 
 Liability of agent keeping gambling place. 
 
 Cited in McBricle v. State, 39 Fla. 450, 22 So. 711, holding evidence that ac 
 eused acted as agent immaterial. 
 J'ower of legislature ro wake rule as to prima faeie evidence. 
 
 Cited in Houston v. State, 24 Fia. 357, 5 So. 48, holding that statute making 
 finding of implements prima facie evidence that house used for gambling does 
 not take away right to benefit of presumption of innocence; State v. Bingham, 42 
 W. Va. 237, 24 S. E. 883, upholding statute authorizing presumption of con- 
 spiracy from finding men together, engaged in wrongful act. 
 
 Cited in footnotes to Vega S. S. Co. v. Consolidated Elevator Co. 43 L. R. A. 
 843, which holds legislature cannot make weighmaster's weights conclusive evi- 
 dence; Pennsylvania Co. v. McCann, 31 L. R. A. 651, which holds general assem- 
 bly may prescribe circumstances which shall constitute prima facie evidence. 
 
 Cited in notes (36 Am. St. Rep. 685) on validity of statutes creating pre- 
 sumptions. 
 Writ of error in criminal cases. 
 
 Cited in State v. Mitchell, 29 Fla. 307, 10 So. 746, holding writ authorized by 
 statute. 
 Jnstructions to jury. 
 
 Cited in Jacksonville, T. & K. W. R. Co. v. Peninsular Land, Transp. & Mfg. 
 Co. 27 Fla. 113, 17 L. R. A. 55, 9 So. 653; Woodruff v. State, '31 Fla. 337, 12 So. 
 (553; Johnston v. State, 29 Fla. 564, 10 So. 686, holding instruction covered 
 by charge of court properly refused; Hayes v. Todd, 34 Fla. 243, 15 So. 752, re- 
 fusing to reverse where instruction, although intemperate, correctly stated the 
 law of slander; Brown v. State, 46 Fla. 165, 35 So. 82, holding it is not error 
 to refuse instruction embraced in other charges. 
 Grounds for reversal. 
 
 Cited in Reddick v. State, 25 Fla. 115, 5 So. 704, holding admission of illegal 
 testimony ground, unless clear no injury done defendant; Jacksonville, M. P. 
 R. & Nav. Co. v. Warriner, 35 Fla. 209, 16 So. 898, refusing to reverse correct 
 judgment for refusal of correct instruction; Johnston v. State, 29 Fla. 564, 10 
 So. 686, holding verdict clearly sustained by evidence not defeated by error in 
 instruction; Hopkins v. State, 52 Fla. 49, 42 So. 52, holding admission or re- 
 jection of testimony which does not reach the legality of the trial itself is not 
 ground for reversal. 
 Effect of statute unconstitutional in part. 
 
 Cited in Hayes v. Walker, 54 Fla. 169, 44 So. 747,. holding the unconstitutional 
 part of a statute may be disregarded and effect given to the remainder where it 
 is not dependent upon the unconstitutional part for effectiveness. 
 Basis of determination of invalidity of statutes. 
 
 Cited in Long v. State, 58 Tex. Grim. Rep. 212, 127 S. W. 208, 21 Ann. Cas. 
 405, holding that statute must violate letter, and not simply spirit of constitution 
 to be declared void. 
 
 1 L. R. A. 825, NETSO v. STATE, 24 Fla. 363, 5 So. 8. 
 .Judicial notice. 
 
 Cited in footnote to Com. v. King, 5 L. R. A. 536, holding that judicial notice 
 be taken that river not public highway. 
 
199 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 826 
 
 Cited in notes (124 Am. St. Rep. 29) on facts of which courts will take judicial 
 notice. 
 AM to what liquors are intoxicating:. 
 
 Cited in State v. Sioux Falls Brewing Co. 5 S. D. 45, 26 L. R. A. 139, 58 N. W. 
 1, refusing to take judicial notice that beer is intoxicating; Purcell v. State, 61 
 Fla. 44, 55 So. 847, holding that courts will take judicial notice that beer is 
 malt liquor; Cassens v. State, 48 Tex. Crim. Rep. 188, 88 S. W. 229, holding 
 there must be proof that the beer sold or given away was an intoxicating liquor; 
 Potts v. State, 50 Tex. Crim. Rep. 370, 7 L.R.A.(N.S.) 197, 123 Am. St. Rep. 847, 
 07 S. W. 477, holding the court does not judicially know that the general term 
 "luv r" means an intoxicating liquor; Gripe v. State, 4 Ga. App. 833, 62 S. E. 567, 
 holding judicial notice is taken of the intoxicating qualities of lager beer; Cald- 
 well v. State, 43 Fla. 550, 30 So. 814, holding same as to wine. 
 
 Cited in notes (2 L. R. A. 408; 20 L. R. A. 649) on judicial notice as to what 
 liquors intoxicating. 
 What liquors are Intoxicants. 
 
 Cited in Shreveport Ice & Brewing Co. v. Brown, 128 La. 412, 54 So. 923, holding 
 that near beer is not intoxicant. 
 
 1 L. R. A. 826, KATZ v. BEDFORD, 77 Cal. 319, 19 Pac. 523. 
 Rescission of contract. 
 
 Cited in Copew v. Durand, 153 Cal. 281, 16 L.R.A.(N.S.) 793, 95 Pac. 38, 
 holding the production of the certificate of architect is dispensed with where 
 work is completed to the satisfaction of owner and architect, and the latter 
 refuses to issue such certificate for final payment. 
 
 Cited in footnotes to Rappleye v. Racine Seeded Co. 7 L. R. A. 139, which holds 
 contract of sale rescindable on insolvency of buyer before delivery; Springfield 
 F. & M. Ins. Co. v. Hull, 25 L. R. A. 37, which holds party rescinding need not 
 restore consideration of void contract. 
 
 Cited in notes (9 L. R. A. 607) on rights of party defrauded on rescission 
 of contract; (6 L. R. A. 503) on effect of rescission. 
 When contract entire. 
 
 Cited in Nichols & S. Co. v. Charlebois, 10 X. D. 450, 88 X. W. 80, holding 
 contract for sale of several distinct things for one consideration, entire; Schlosser 
 v. Moores, 16 N. D. 191, 112 X. W. 78, holding fact that the total purchase 
 price is stated where contract stipulates the number of bushels and price per 
 bushel of two kinds of seed, will not make the contract entire and indivisible. 
 Recovery on quantum meruit. 
 
 Cited in Gove v. Island City Mercantile & Mill Co. 19 Or. 369, 24 Pac. 521, 
 holding that repairer of mill can recover on quantum meruit, where defense is 
 that work was not done in workmanlike manner. 
 
 Cited in note (59 Am. St. Rep. 284) on recovery on quantum meruit. 
 Duty of court to compel an election between separate courts. 
 
 Cited in Remy v. Olds, (Cal.) 21 L.R.A. 647. 34 Pac. 216, holding it not 
 error to refuse to compel an election between counts, although the same cause of 
 action is stated in separate counts. 
 Estoppel by conduct. 
 
 Cited in note (11 Eng. Rul. Cas. 102) on estoppel by conduct. 
 Modification of contract by subsequent parol agreement. 
 
 Cited in notes (11 Am St. Rep. 394: 56 Am. St. Rep. 661) on modification of 
 written contract by subsequent parol agreement. 
 
1 L.R.A. 829] L. R. A. CASES AS AUTHORITIES. 200 
 
 1 L. R. A. 829, BURLINGAME v. ROWLAND, 77 Cal. 315, 19 Pac. 526. 
 Improvement of land as consideration for conveyance. 
 
 Cited in Brothers v. Brothers, 29 Colo. 71, 66 Pac. 901, holding that by agree- 
 ment to improve property as recompense for services son became equitable owner j. 
 Manning v. Franklin, 81 Cal. 208. 22 Pac. 550. holding erection of building in land 
 under parol contract, in consideration of right to life occupancy, taken out of 
 statute by performance during life; Darke v. Smith. 14 Utah. 41. 4-"i Pac. lOOfi. 
 holding valuable improvements made and possession taken and held in pursuance 
 of promise to execute deed of gift, sufficiently proven, entitles promisee to specific 
 performance. 
 
 Distinguished in Valentine v. Streeton, 9 Cal. App. 644, 99 Pac. 1107, holding 
 where improvements are made under a lease, the forfeiture of which had not 
 been claimed, an intention of making a gift does not appear. 
 Specific performance of oral agreement as to land. 
 
 Cited in notes (22 Am. St. Rep. 238; 29 Am. St. Rep. 48) on specific per- 
 formance of oral agreement as to land. 
 
 1 L. R. A. 830, WASHINGTON v. RALEIGH & G. R. CO. 101 N. C. 239, 7 
 
 S. E. 789. 
 Liability of carrier on connecting: line. 
 
 Cited in White v. Norfolk & S. R. Co. 115 N. C. 635, 44 Am. St. Rep. 489, 20 
 S. E. 191, holding railroad liable for injury to passenger on its boat chartered 
 to an excursion manager; Cherry v. Kansas City, Ft. S. & M. R. Co. 61 Mo. A pp. 
 310, holding railroad selling ticket to point beyond its line liable for wrongful 
 expulsion of passenger on connecting line; Carleton v. Yadkin R. Co. 143 N. C'. 
 50, 55 S. E. 429, 10 A. & E. Ann. Cas. 34, holding where two roads are leased 
 to same lessee, a tort or breach committed by a conductor on one road docs not 
 render the other road liable. 
 
 Cited in notes (4 L. R. A. 376) on connecting lines of railroad; fundamental 
 law construed; (9 L. R. A. 836) on contract made by freight agent for freight 
 transportation; (5 Eng. Rul. Cas. 463; 106 Am. St. Rep. 610) on liability of 
 initial carrier for torts or negligence of connecting lines. 
 
 1 L. R. A. 833, MORRISON v. WATSON. 101 N. C. 332, 7 S. E. 79.). 
 
 Appeal dismissed for want of jurisdiction in 154 U. S. Ill, 38 L. ed. 927, 14 
 Sup. Ct. Rep. 995. 
 Homestead. 
 
 Cited in Vanstory v. Thornton, 112 N. C. 220, 34 Am. St. Rep. 483, 17 S. E. 
 566 (dissenting opinion), majority holding homestead right salable, and pur- 
 chaser entitled to hold land to exclusion of ordinary senior judgment creditor 
 until such right terminates. 
 
 Disapproved in part in Long v. Walker, 105 N. C. 99, 10 S. E. 858, holding sal 
 under execution for costs on debt contracted before Constitution was adopted 
 valid without laying off homestead. 
 
 1 L. R. A. 837, PHILLIPS v. FERGERSON, 85 Va. 509, 17 Am. St. Rep. 78, 
 
 8 S. E. 241. 
 Eqnitable conversion. 
 
 Cited in Gallagher v. Rowan, 86 Va. 824, 11 S. E. 121, holding conversion of 
 realty into personalty effective, although purpose of conversion partially fails. 
 
 Cited in notes (3 L.R.A. 145) on conversion of real proper ty into personalty; 
 (20 L.R.A. (N.S.) 119) as to where there is such a failure of testator's purpose 
 
201 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 840 
 
 as to preclude equitable conversion; (7 Eng. Rul. Cas. 23, 25) on equitable con- 
 version of realty into personalty, and vice versa. 
 Conditions in restraint of marriage or against contesting will. 
 
 Cited in Fifield v. Van Wyck, 94 Va. 563, 64 Am. St. Rep. 745, 27 S. E. 446, 
 holding condition forfeiting bequest of personalty in case of litigation over will, 
 in terrorem, where no gift over on breach; Robinson v. Martin, 200 X. Y. 175, 
 93 N. E. 488 (dissenting opinion), on creation of condition in restraint of mar- 
 riage by trust for son payable at his death to unmarried daughters. 
 
 Cited in footnotes to Mann v. Jackson, 16 L.R.A. 707, which holds devise of 
 life estate to daughter "unless she shall be married" valid where gift over in 
 such event; Herd v. Catron, 37 L. R, A. 731, which holds devise to wife, with 
 gift over in event of her remarriage, valid; Ransdell v. Boston, 43 L. R. A. 526, 
 which holds devise to son for life, but, in event of securing divorce from present 
 wife, in fee, not void where divorce suit already instituted; King v. King, 52 
 L. R. A. 157, which holds provision against marriage in contract for perform- 
 ance of labor does not render entire contract void. 
 
 Cited in notes (84 Am. St. Rep. 148, 149, 150) on conditions in restraint of 
 marriage; (25 Eng. Rul. Cas. 637) on validity of condition in restraint of mar- 
 riage. 
 Conditions precedent and subsequent. 
 
 Cited in Mollencamp v. Farr, 70 Kan. 791, 79 Pac. 646, holding fact that no 
 forfeiture in set terms is provided by terms of will, in case there is a failure 
 ~to perform the conditions named, does not give validity to a devise of realty. 
 
 Cited in footnote to Re Jones, 48 L. R. A. 580, which holds interest con- 
 tingent until decision of executors under legacy entitling legatee thereto on con- 
 dition that executors declare him reformed within limited period. 
 
 Cited in notes (9 L.R.A. 166) on conditions precedent; (70 Am. St. Rep. 834) 
 on impossibility of performance of conditions precedent or consequent. 
 Parol evidence. 
 
 Cited in notes (6 L. R. A. 43) on admissibility of, to identify person and prop- 
 erty; (17 L. R. A. 272) on exceptions to rule against admission of parol evi- 
 dence; (50 Am. St. Rep. 287, 288) on extrinsic evidence to explain wills. 
 What constitutes "family." 
 
 Cited in Brett v. Donaghe, 101 Va. 789, 45 S. E. 324, holding grandchild not 
 entitled to participate in trvist fund as member of grandfather's family. 
 
 Cited in footnote to Mover v. Drummond, 7 L. R. A. 747, which holds 
 brother, supporting sister, head of family within homestead laws. 
 
 1 L. R. A. 840, OLMSTEAD v. MICHELS, 36 Fed. 455. 
 
 Affirmed in 157 U. S. 200, 39 L. ed. 671, 15 Sup. Ct. Rep. 580. 
 Understanding of terms of contract. 
 
 Cited in Mower Harwood Creamery & Dairy Supply Co. v. Hill, 135 Iowa, 604, 
 113 X. W. 466, holding one signing a contract for shares in a co-operative or- 
 ganization will not be heard to say he did not read the contract where there 
 appears no sufficient reason for his failure to close; American Fruit Produce 
 Co. v. Barrett, 113 Minn. 27, 128 X. W. 1009, holding that contract in plain and 
 unambiguous language cannot be reformed, where it is without deception, signed 
 with full knowledge of terms on verbal assurance that it will not be enforced 
 as written. 
 
 Cited in footnote to Och v. Missouri, K. & T. R. Co. 36 L. R. A. 442, which 
 holds release obtained while injured passenger still dazed by shock void. 
 
1 L.R.A. 840] L. R. A. CASES AS AUTHORITIES. 202 
 
 1 L. R. A. 842, HUNT v. OREGON P. R. Co. 36 Jed. 481. 
 Damages for breach of contract. 
 
 Cited in Hoskins v. Scott. 52 Or. 277. 06 Pac. 1112, holding damages which 
 can be ascertained with reasonable certainty and was contemplated by the 
 parties at time contract was made, may be recovered where they are the natural 
 and probable consequence of the breach. 
 
 Cited in notes (6 L. R. A. 552; 11 L. R. A. 681) on damages for breach of 
 contract; (4 L. R. A. 670) on measure of damages for breach of contract to 
 convey; (18 L. R. A. 386) on measure of damages for breach of implied war- 
 ranty; (53 L. R. A. 44) on distinction between direct and collateral profits as 
 element of damages for breach of contract. 
 By contractor. 
 
 Cited in American Surety Co. v. Woods, 45 C. C. A. 286, 105 Fed. 745, holding 
 in action against contractor, where employer has not completed work, difference 
 between contract price and cost of completion not recoverable ; Northwestern 
 Steam Boiler & Mfg. Co. v. Great Lakes Engineering Works, 104 C. C. A. 52, 
 181 Fed. 42, holding that unexercised option to complete contract does not 
 prevent contractee from recovering damages for delay of contractor who finishes 
 work after stipulated time; Donaldson v. State, 46 Ind. App. 282, 90 N. E. 132, 
 holding that measure of damages for breach of contract, where contract is relet, 
 is difference between first contract price and cost of completion plus amount paid 
 on first contract. 
 
 Cited in note (53 L. R. A. 49) on loss of profits as element of damages for 
 breach of contract for construction of ways, bridges, etc. 
 By employer. 
 
 Cited in Danforth v. Tennessee & C. R. Co. 93 Ala. 620, 11 So. 60, holding dif- 
 ference between cost of doing work and contract price recoverable from employer 
 on breach of contract. 
 
 1 L. R. A. 844, HINES v. CHARLOTTE, 72 Mich. 278, 40 N. W. 333. 
 Liability of municipal corporations. 
 
 Cited in Udkin v. New Haven, 80 Conn. 295. 14 L.R.A.(N.S.) 870, 68 Atl. 253, 
 holding as respects discretionary powers generally, no liability attaches to the- 
 city either for their non-exercise or the manner of their exercise. 
 
 Cited in notes (2 L.R.A. 607) on municipal corporation liable for damage 
 caused by grading street; (5 L. R. A. 254) on municipalities liable for injuries 
 resulting from defective streets, etc.; (38 L. R. A. 170) on municipal power 
 over wooden and frame buildings as nuisances. 
 For failure to enforce ordinance. 
 
 Cited in Coonley v. Albany, 132 N. Y. 153, 30 N. E. 382, holding city not lia- 
 ble for failure to enforce ordinance providing for removal of boats sunk at dock: 
 Anderson v. East, 117 Ind. 127, 2 L. R. A. 714, 10 Am. St. Rep. 36, 19. N. E. 72G, 
 holding municipality not liable for damage to building by falling of adjoin- 
 ing owner's wall, though notified of dangerous condition; Joslyn v. Detroit, 74 
 Mich. 463, 42 N. W. 50 (dissenting opinion), majority holding city liable for 
 injuries occasioned by failure to enforce ordinance requiring signals placed 
 where building materials obstruct street; Hull v. Roxboro. 142 N. C. 456, 12 
 L.R.A.(N.S.) 640, 55 S. E. 3.51, holding if corporation, under power granted in 
 its charter, has enacted ordinances it is not civilly liable for any omission to 
 enforce them. 
 For acts or omissions of officers or agents. 
 
 Cited in Kilts v. Kent County, 162 Mich. 649, L.R.A.(N.S.) , 1-27 N. V 
 
203 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 847 
 
 821, holding supervisors not liable for death of employee of contractor from negli- 
 gent construction of water system for county poor farm. 
 
 Cited in footnotes to Culver v. Streator, 6 L. R. A. 270, which holds city not 
 liable for negligence of one employed to enforce dog ordinance; Curran v. Bos- 
 ton, 8 L. R. A. 243, which holds city not liable for negligence of officer managing 
 workhouse voluntarily maintained; Butterfield v. Boston, 2 L. R. A. 447, which 
 holds city not liable for momentary negligence of gateman at drawbridge: Wil- 
 son v. Mitchell, 65 L.R.A. 158, which holds that municipality cannot ratify act 
 of waterworks superintendent in wrongfully connecting well with city water 
 mains so as to become liable for water taken from the well. 
 
 Cited in notes (2 L. R. A. 366) on liability for negligence of city officials; (4 
 L. R. A. 327) on liability of municipality for acts of officers or agents, on what 
 depends; (2 L. R. A. 501, 713; 9 L. R. A. 209) on municipal corporation; when 
 not liable for acts or omissions of officers or agents. 
 
 1 L. R. A. 847, SUGGS v. TRAVELERS INS. CO. 71 Tex. 579, 9 S. W. 676. 
 Expiration of right ly lapse of time. 
 
 Cited in Savings & T. Co. v. Bear Valley Irrig. Co. 89 Fed. 39, holding judg- 
 ment creditor's statutory lien expires with lapse of prescribed period, although 
 property in hands of receivers; Bartlett v. Manor, 146 Ind. 627, 45 N. E. 1060 r 
 holding time within which to substitute unprobated will under statute is not 
 extended by fraudulent concealment of unprobated will : Matthews v. American 
 Cent. Ins. Co. 9 App. Div- 348, 41 N. Y. Supp. 304, holding time within 
 which to enforce fire policy not extended by death of insured and failure of ex- 
 ecutor to qualify within period; Travelers Ins. Co. v. California Ins. Co. 1 N. 
 D. 158, 8 L. R. A. 772, 45 N. W. 703, holding delay in enforcing fire policy not 
 excused by sickness of insured; Dolan v. Royal Neighbors, 123 Mo. App. 156, 100 1 
 S. W. 498, holding the statute of limitations operates in the nature of a condi- 
 tion precedent to forfeit the liability when suit is not instituted within the stipu- 
 lated time; Peters v. Hanzer, 67 C. C. A. 386, 134 Fed. 589, holding the statutory 
 restriction on right of action for infringement of a patent is to be considered 
 a restriction on the statutory right of recovery rather than as an ordinary stat- 
 ute of limitation. 
 
 Cited in footnote to Union Central L. Ins. Co. v. Spinks, 69 L.R.A. 264, which 
 holds void provision that suit shall be brought on life policy within period less 
 than that fixed by statute of limitations. 
 
 Cited in notes (13 L. R. A. 266) on limitation of right to sue on insurance 
 policy; (47 L. R. A. 710) on what will prevent or delay the running of statute- 
 of limitations; (25 Am. St. Rep. 485) on time within which action may be brought 
 on insurance policy. 
 Infancy of person entitled to sue. 
 
 Cited in Mutual Ben. L. Ins. Co. v. Harvey, 117 Ky. 840, 111 Am. St. Rep, 
 269, 79 S. W. 218, holding infancy of beneficiaries is no excuse for failure to- 
 elect to take up paid up insurance upon lapse of policy; Mead v. Phcenix Ins. Co. 
 68 Kan. 435, 64 L.R.A. ?], 104 Am. St. Rep. 412, 75 Pac. 475, holding the con- 
 tract limitation in the policy controlled the general statute of limitations even 
 against minor beneficiaries; Fey v. I. 0. 0. F. Mut. L. Ins. Co. 120 Wis. 367, 98 
 X. W. 206. holding statutory exception in favor of minors does not affect the 
 contract limitation; Heilig v. JEtna L. Ins. Co. 152 N. C. 360, 67 S. E. 927, held 
 ing infancy of the insured is no defense to failure to bring action to recover loss 
 within the limiting time to sue. 
 
 Cited in footnote to Mead v. Phoenix Ins. Co. 64 L. R. A. 79, which hol-ls 
 
1 L.E.A. 847] L. R. A. CASES AS AUTHORITIES. 204 
 
 minor owning dwelling house not exempt from complying with time stipulation 
 for action on policy. 
 
 Cited in note (1 L.R.A.(X.S.) 525) on stipulation in contract as to time for 
 suit thereon as binding on infant. 
 
 1 L. R. A. 849, GULF, C. & S. F. R. CO. v. STATE, 72 Tex. 404, 2 Inters. Com. 
 
 Rep. 335, 13 Am. St. Rep. 815, 10 S. W. 81. 
 Jmlicial notice. 
 
 Cited in Miller v. Texas & N. 0. R. Co. 83 Tex. 520, 18 S. W. 954, and Texas 
 & P. R. Co. v. Black, 87 Tex. 165, 27 S. W. 118, holding court will take judicial 
 notice of locality of railways: Texas Standard Oil Co. v. Adoue, 83 Tex. 658, 
 15 L. R. A. 601; 29 Am. St. Rep. 690, 19 S. W. 274, holding judicial notice may 
 be taken that certain cities are commercial centers of state, as well as of 
 cotton-producing regions; Worden v. Cole, 74 Kan. 230, 86 Pac. 464. holding judi- 
 cial notice will be taken of the permanent location of a railroad traversing the 
 state and of state lands granted to the railroad and lying within limits of such 
 location; Texas X. 0. R. Co. v. Walker, 43 Tex. Civ. App. 279, 95 S. W. 743, 
 holding judicial notice is taken of the respective runs of railroads between a point 
 in the state and one in an adjoining state. 
 
 Cited in footnote to Com. v. King, 5 L. R. A. 536, which holds court will take 
 judicial notice that Connecticut river above Holyoke not a highway for in- 
 terstate commerce. 
 
 Cited in note (4 L. R. A. 38) on judicial notice as to matters of general knowl- 
 edge. 
 
 Distinguished in Missouri, K. & T. R. Co. v. Lightfoot, 48 Tex. Civ. App. 128, 
 106 S. W. 395, holding the court does not take judicial notice of a stop on a 
 railroad not a county seat and does not know judicially the fare between two 
 points. 
 Contracts limiting: competition. 
 
 Cited in footnote to Chaplin v. Brown, 12 L. R. A. 428, which holds agreement 
 not to deal in butter if new butter store established, void as tending to create 
 monopoly. 
 
 Cited in notes (13 L. R. A. 771) on nature of monopolies; (11 L. R. A. 437) 
 on contracts to regulate competition in trade not illegal; (2 L. R. A. 34) on 
 agreements to stifle competition void; (64 L. R. A. 696) on illegal trusts under 
 modern anti-trust laws. 
 Remedy. 
 
 Cited in Territory v. Long Bell Lumber Co. 22 Old a. 905, 99 Pac. 911, holding 
 combinations in restraint of trade may be proceeded against by injunction to 
 prevent a continuance. 
 Corporate consolidation and pnrcliase of stock of other company. 
 
 Cited in notes (7 L. R. A. 606) on restriction on power of corporation to 
 deal in stock of others; (52 L. R. A. 374) on right of corporation to consoli- 
 date, as affected by organic law, and (52 L. R. A. 381) as affected by com- 
 mon law; (52 L. R. A. 377) on interpretation, application, and construction of 
 laws restricting consolidation; (52 L. R. A. 391) on corporate consolidation. 
 Restriction of. 
 
 Cited in Louisville & X. R. Co. v. Kentucky, 161 U. S. 703, 40 L. ed. 860, 16 
 Sup. Ct. Rep. 714, holding state prohibition of consolidation of competing rail- 
 roads valid exercise of police power: Chicago, M. & St. P. R. Co. v. Wabash, St. 
 L. & P. R. Co. 9 C. C. A. 664 ; 17 U. S. App. 1, 61 Fed. 999, holding contract be- 
 Iween railroads limiting competition void as against public policy; East St. 
 
205 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 856 
 
 Louis C. R. Co. v. Jarvis, 34 C. C. A. 648, 82 Fed. 744, holding ten-year lease 
 of competing road "consolidation," within constitutional inhibition. 
 
 Cited in footnote to Langdon v. Central R. & Bkg. Co. 2 L. R. A. 120, which 
 holds purchase of construction contract and securities of competing railroad, 
 with view to prevent construction, illegal under anti-monopoly provision of 
 state Constitution. 
 
 Cited in notes (45 L. R. A. 273) on restrictions on consolidation of parallel 
 or competing roads; (45 L. R. A. 275) on what are competing lines. 
 
 1 L. R. A. 854, WATSON v. LEDERER, 11 Colo. 577, 7 Am. St. Rep. 263, 19 
 
 Pac. 602. 
 Exemptions. 
 
 Cited in Martin v. Bond, 14 Colo. 472, 24 Pac. 326, holding stock in trade of 
 merchant exempt; Re Conley, 162 Fed. 807, holding a horse, harness and wagon 
 of a dealer in eggs and poultry and used to bring product to market is exempt 
 under a statute exempting "the tools etc., used and kept for the purpose of 
 carrying on his trade or business." 
 
 Cited in footnotes to Consolidated Tank Line Co. v. Hunt, 12 L. R. A. 
 476, which holds horse and team of oil merchant exempt as that of "team- 
 ster" who habitually earns living thereby, although sporadic sales are made 
 at shop; Equitable Life Assur. Soc. v. Goode, 35 L. R. A. 690, which holds 
 law books exempt where owner earns portion of support by legal work, though he 
 does not appear in court or entirely support himself by legal services; David- 
 son v. Hannon, 34 L. R. A. 718, which holds photographic lens an implement 
 of photographer's trade; Terry v. McDaniel, 46 L. R. A. 559, which holds 
 barber's chair and looking-glass exempt as tools of trade; Williams v. Vincent, 
 68 L.R.A. 634, which holds bowling alley not exempt from execution as tools 
 or implements of trade. 
 
 Cited in note in (123 Am. St. Rep. 145) on exemption of tools and implements. 
 Allowance of fees of Justice of peace. 
 
 Cited in Pitkin County v. Sanders, 27 Colo. 125, 59 Pac. 402, holding allow- 
 ance in criminal trials discretionary with board of county commissioners. 
 
 1 L. R. A. 856, MEIER v. PORTLAND CABLE R. CO. 16 Or. 500, 19 Pac. 610. 
 Implied dedication. 
 
 Followed in Hogue v. Albina, 20 Or. 186, 10 L. R. A. 675, 25 Pac. 386, and 
 Hicklin v. McClear, 18 Or. 142, 22 Pac. 1057, holding dedication of street, 
 without formal acceptance, irrevocable by conveyance of lots with reference to 
 unrecorded plat of land in question; Conrad v. West End Hotel & Land Co. 126 
 N. C. 779, 36 S. E. 282, and Steel v. Portland, 23 Or. 183, 31 Pac. 479, holding 
 same principle applicable to platted parks; Porter v. Carpenter, 39 Fla. 20, 21 
 So. 788, holding purchaser with reference to unrecorded plat entitled to keep open 
 for public use streets laid out thereon; Spencer v. Peterson, 41 Or. 259, 68 Pac. 
 519, holding roads dedicated to public use by owner recording plat designating 
 them, and selling property with reference thereto; Nodine v. Union, 42 Or. 616, 
 72 Pac. 582, holding common-law dedication not accomplished by estoppel, 
 where plat was not acknowledged and land not surveyed; Hughes v. Clark, 
 134 N. C. 460, 46 S. E. 956, holding streets dedicated by sale of land with ref- 
 erence to plat on which they were designated; Sarvis v. Caster, 116 Iowa, 710, 
 89 X. W. 84, holding that what reasonable time for acceptance of dedicated street 
 is, depends upon circumstances of case. 
 
 Cited in Price v. Stratton, 45 Fla. 543, 33 So. 644, holding where owner makes a 
 town plat of land, dividing it into blocks and lots with streets indicated, his 
 
1 L.R.A. 856] L. R. A. CASES AS AUTHORITIES! 206 
 
 sale of lots with reference thereto constitutes a dedication to the public of such 
 streets; Oregon City v. Oregon & C. R. Co. 44 Or. 176, 74 Pac. 924, holding 
 a dedication of streets and public places shown on plat, is made by sale of lots 
 and deeds of conveyance made by reference to such plat; Smith v. Beloit. 122 
 Wis. 409, 100 N. W. 877, holding an incomplete or defective statutory dedication 
 may be sustained as a common law T dedication where the streets or roads marked 
 thereon are accepted and used by the public; Corsicana v. Anderson, 33 Tex. Civ. 
 App. 601, 78 S. W. 261. holding where one sells with reference to a map on which 
 the land is laid off, and he adopts such map by reference thereto, his acts will 
 amount to a dedication of the streets; Corsicana v. Zorn, 97 Tex. 322, 78 S. 
 W. !>24, holding the deed of land by a married woman as to dedication of streets 
 in a plat called for by her deed is to be given the same effect as though she 
 were sole. 
 
 Cited in notes (13 L. R. A. 252) on dedication of land for public parks; 
 '(9 L. R. A. 552) on dedication by platting and sale of lots; (11 L. R. A. 57) 
 on acceptance necessary to dedication; (2 L. R. A. 59) on dedication of public 
 streets subject to use by railway; (6 L. R. A. 261) on estate created by dedi- 
 cation; (14 L.R.A. (N.S. ) 1068. on effect of conveyance of lots laid down on plats, 
 to prevent change in use or form; (10 Am. St. Rep. 189) on dedication to 
 public use. 
 
 Distinguished by Collins v. Asheville Land Co. 128 N. C. 569, 83 Am. St. Rep. 
 720, 39 S. E. 21 (dissenting opinion), majority holding purchaser with knowl- 
 edge of unrecorded plat bound to keep open streets located thereon. 
 Dm; as to opening- platted streets. 
 
 Cited in Little Rock v. Wright, 58 Ark. 150, 23 S. W. 876, holding right 
 to open not lost by continued use for pasture by grantor after dedication; Gif- 
 fen v. Olathe, 44 Kan. 351, 24 Pac. 470. holding private use of dedicated but 
 unopened alleys presumptively subject to public right; Russell v. Lincoln. 200 
 111. 518. 65 N. E. 1088, holding thirty years' undisturbed possession of inclosed 
 pasture does not bar municipality's right to open streets located thereon by 
 plat known of at time of purchase; Louisiana Ice Mfg. Co. v. New Orleans, 43 
 Xa. Ann. 224, 9 So. 21, holding inclusion of platted highway in description of 
 private property and payment of taxes thereon for prescriptive period does 
 not prevent municipality from opening same; Skottowe v. Oregon Short Line 
 & U. N. R. Co. 22 Or. 447, 16 L. R. A. 599, 30 Pac. 222, holding railway 
 company responsible for negligent condition of elevated way over platted 
 street unopened by municipality; Red Bluff v. Walbridge, 15 Cal. App. 785. 110 
 Pac. 77, holding that town does jiot lose right to use street for its full width by 
 failure to open and use it for its full width; Christian v. Eugene, 49 Or. 173, 
 .89 Pac. 419, holding the dedicator will not be heard to question correctness of 
 plat where he has platted and sold lots with reference to it; Bounty v. Seattle. 
 46 Wash. 144, 89 Pac. 480, holding the dedicator cannot after plat is filed and 
 streets dedicated to the public and accepted, change at will, the plat and vacate 
 .a street or any part of one; Burroughs v. Cherokee, 134 Iowa, 433, 109 X. W. 
 '876, holding the proprietor upon receiving ample consideration for his property 
 in sale of lots, has no ground for complaint of delays in improving the ground 
 -dedicated; Evans v. Blankenship, 4 Ariz. 316, 39 Pac. 812, on time allowed the 
 public for opening and improving public streets. 
 
 iCited in footnote to Osage City v. Larkins, 2 L. R. A. 56. which holds both 
 municipality and owner negligent and liable for injuries received from danger- 
 ous machinery placed in unopened alley by owner. 
 
207 L. R. A. CASES AS AUTHORITIES. [1 L.R.A. 863 
 
 1 L. R. A. 861, HACKER'S APPEAL, 121 Pa. 192, 15 Atl. 500. 
 What is sufficient tieal. 
 
 Cited in Lorah v. Nissley, 156 Pa. 331, 27 Atl. 242, holding word "seal" 
 printed on note, adopted as seal by person signing it; District of Columbia v. 
 Camden Iron Works, 15 App. D. C. 217, and Jacksonville, M. P. R. & Nav. Co. 
 v. Hooper, 160 U. S. 519, 40 L. ed. 521, 16 Sup. Ct. Rep. 379, holding that 
 whether mark is a seal depends upon intention of person executing as shown by 
 paper; Excelsior Mfg. Co. v. Wheelock, 6 N. M. 414, 28 Pac. 772, holding stat- 
 ute declaring scroll sufficient seal applies only to instruments requiring seal at 
 common law; Dart v. Hughes, 49 Colo. 469, 109 Pac. 952, holding "seal" an annual 
 corporate report sufficient; Com. v. Hoffstat. 58 Pittsb. L. J. 386, holding 
 that impression of jury commissioner's key in wax on jury wheel is a sufficient 
 seal; Hewitt v. Hughes, 39 Pittsb. L. J. X. S. 346, holding (L. S.) sufficient seal 
 on note; Langley v. Owens, 52 Fla. 310, 42 So. 457, 11 A. & E. Ann. Cas. 247, 
 holding a scrawl or scroll, affixed as a seal to signature of maker of a note is 
 effectual as a seal; Wenchell v. Stevens, 30 Pa. Super. Ct. 533, holding it a ques- 
 tion for the jury whether a seal on a note was adopted by maker. 
 
 Cited in note (11 L. R. A. 833) on effect of addition of seal to commercial 
 paper. 
 Execution of poorer. 
 
 Distinguished in Reed v. Mellor, 122 Pa. 651, 16 Atl. 80, holding same 
 strictness not required in execution of power to sell as of power to appoint. 
 
 1 L. R. A. 863, PELLETIER v. COUTURE, 148 Mass. 269, 19 N. E. 400. 
 Title to partnership property. 
 
 Followed in Russell v. Cole, 167 Mass. 9, 57 Am. St. Rep. 432, 44 N. E. 1057, 
 holding that sheriff under attachment against one partner acquired no title to 
 property bona fide acquired by firm by contract in fraud of creditors of such 
 partner. 
 
 Cited in Pratt v. McGuinness, 173 Mass. 172, 53 N. E. 380, holding assignee 
 of individual interest of partner in firm property is not a tenant in common 
 or entitled to a sale thereof; Conary v. Sawyer, 92 Me. 467, 69 Am. St. Rep. 
 524, 43 Atl. 27, holding all firm property available to creditors of insolvent 
 partnership, though infant member repudiates liability; Gordon v. Miller, 111 
 Mo. App. 352, 85 S. W. 943, holding the contract of an infant member of a 
 partnership is voidable only at his election and he may set up his incapacity as 
 release to purchase price of firm's assets. 
 Ratification of contract by infant. 
 
 Cited in Ready v. Pinkham, 181 Mass. 352, 63 N. E. 887, holding infant 
 cannot retain and convey realty after becoming of age, without ratifying con- 
 tract to pay for same. 
 Insolvency of partnership. 
 
 Distinguished in Clarke v. Stanwood, 166 Mass. 383, 34 L. R. A. 381, 44 N. 
 E. 537, holding firm debts provable against estate of insolvent partner though 
 firm solvent. 
 Review of proceedings in insolvency court. 
 
 Cited in Jaquith v. Fuller, 167 Mass. 128, 45 N. E. 54, holding writ of pro- 
 hibition from supreme court unnecessary in view of full power in equity to 
 .revise or vacate proceedings of insolvency court. 
 
L. R. A. CASES AS AUTHORITIES. 
 
 CASES IN 2 L. R A. 
 
 2 L. R. A. 33, PEOPLE v. NORTH RIVER SUGAR REF. CO. 54 Hun, 355, note, 
 27 N. Y. S. R. 282, 3 N. Y. Supp. 401. 
 
 Affirmed in 54 Hun, 354, 5 L. R. A. 386, 7 N. Y. Supp. 406, which was 
 affirmed in 121 N. Y. 582, 9 L. R. A. 33, 18 Am. St. Rep. 843, 24 N. E. 834. 
 Combinations affecting competition. 
 
 Cited in Rafferty v. Buffalo City Gas Co. 37 App. Div. 623, 56 N. Y. Supp. 
 288, upholding purchase of stock of one corporation with stock of another to 
 prevent ruinous competition ; Queen Ins. Co. v. State, 86 Tex. 275, 22 L. R. A. 
 492, 24 S. W. 397, holding combination to fix insurance rates not ona in re- 
 straint of trade; Milwaukee Masons & Builders' Asso. v. Niezerowski, 95 Wis. 
 135, 37 L. R. A. 130, 60 Am. St. Rep. 97, 70 N. W. 166, holding 
 combination of contractors and masons to suppress competition and ad- 
 vance prices illegal; Bailey v. Master Plumbers' Asso. 103 Tenn. 107, 46 
 L. R. A. 563, 52 S. W. 853, holding illegal, master plumbers' association to pre- 
 vent competition and restrict purchase of supplies and materials; Distilling 
 & Cattle Feeding Co. v. People, 156 111. 487, 47 Am. St. Rep. 200, 41 N. E. 188, 
 holding combination to stifle competition and control production and prices il- 
 legal; Brown v. Jacobs' Pharmacy Co. 115 Ga. 443, 57 L. R. A. 554, 90 Am. St. 
 Rep. 126, 41 S. E. 553, holding combination to compel outsider to sell goods 
 at prices fixed by it void ; United States v. Addyston Pipe & Steel Co. 46 L. R. 
 A. 136, 29 C. C. A. 160, 54 U. S. App. 723, 85 Fed. 291, holding contract between 
 iron-pipe manufacturers for purpose of restraining competition and maintaining 
 prices void; Chicago, W. & V. Coal Co. v. People, 214 111. 442, 73 N. E. 770, 
 Affirming 114 111. App. 116, holding a combination between independent coal 
 producers to prevent competition is unlawful and amounts to a conspiracy; 
 Cleveland, C. C. & I. R. Co. v. Closser, 126 Ind. 362, 9 L.R.A. 761, 3 Inters. 
 Com. Rep. 387, 22 Am. St. Rep. 593, 26 N. E. 159, holding an arrangement en- 
 tered into between rival railroad companies fixing freight rates is prima facie 
 illegal; State v. Duluth Bd. of Trade, 107 Minn. 537, 23 L.R,A.(N.S.) 1276, 121 
 N. W. 395, holding a rule of a board of trade providing that all members shall 
 charge a uniform and determined rate of commission for selling grain for non 
 members and a penalty for a violation thereof, is not in violation of ante- 
 trust statute; United States v. American Tobacco Co. 164 Fed. 721, holding the 
 consolidation into one corporation of other corporations engaged in different 
 branches of the tobacco industry which resulted in the practical elimination of 
 competition was a combination in restraint of interstate commerce; Sanford 
 v. People, 121 111. App. 645, on it not being necessary that a combination in 
 restraint of trade create a monopoly in order to be unlawful; Territory v. Long 
 Eell Lumber Co. 22 Okla. 905, 99 Pac. 911, on right of state to enact legis- 
 L.R.A. Au. Vol. I. 14. 209 
 
2 L.R.A. 33] L. R. A. CASES AS AUTHORITIES. 210 
 
 lation to prevent the creations of monoplies, or combinations in restraint of 
 trade; Pocahontas Coke Co. v. Powhatan Coal & Coke Co. GO W. Va. 529, 10 
 L.R.A. (X.S.) 284, 116 Am. St. Rep. 901, 56 S. E. 264, 9 A. & E. Ann. Cas. 667, 
 on the determination of whether a contract or combination is in restraint of 
 trade; State v. Central Lumber Co. 24 S. D. 165, L.R.A. (X.S.) , 123 X. W. 
 504, on forfeiture of corporate franchise for unfair competition. 
 
 Cited in footnotes to Texas Standard Cotton Oil Co. v. Adoue, 15 L. R. A. 
 598, which holds combination to fix prices of cotton seed and seed cotton void; 
 Van Horn v. Van Horn, 10 L. R. A. 184, which holds combination to drive 
 trader out of business actionable; More v. Bennett, 15 L. R. A. 361, which 
 holds association of stenographers to control prices for work illegal combina- 
 tion; State v. Phipps, 18 L. R. A. 658, which holds combination by foreign com- 
 panies to increase rates of insurance unlawful; Slaughter v. Thacker Coal & Coke 
 Co. 65 L.R.A. 342, which holds void contract by different coal mining companies 
 giving exclusive right to sell entire output at uniform prices to corporation 
 organized as their regular sales agent. 
 
 Cited in note (12 L. R. A. 196) on conspiracy. 
 
 Distinguished in United States v. E. C. Knight Co. 60 Fed. 310, holding a 
 combination whose object was to enable a single company to control the sugar 
 industry by buying up competing concerns in United States was not in violation 
 of act declaring "every contract, combination in the form of a trust or other- 
 wise or conspiracy in restraint of trade or commerce among states or with 
 foreign nations," illegal. 
 Agreements affecting trade. 
 
 Cited in Klingel's Pharmacy v. Sharp & Dohme, 104 Md. 231, 7 L.R.A. (X.S.) 
 981, 118 Am. St. Rep. 399, 64 Atl. 1029, 9 A. & E. Ann. Cas. 1184; holding a 
 combination between retail and wholesale druggists of a city to maintain 
 a maximum schedule of prices is illegal where it refuses to sell to parties not 
 joining the combination and boycotts dealers that do sell to such persons; 
 Standard Oil Co. v. State, 117 Tenn. 660, 10 L.R.A.(X.S.) 1026, 100 S. W. 705, 
 holding an agreement by defendant company to give another a quantity of coal 
 oil on his countermanding an order given to a competitor was a violation of 
 the state ante-trust law. 
 
 Cited in footnotes to Chaplin v. Brown, 12 L. R. A. 428, which holds grocer's 
 agreement not to buy butter from makers for two years if firm opens butter 
 store, void; Gloucester Isinglass & Glue Co. v. Russia Cement Co. 12 L. R. A. 
 563, which holds agreement to prevent competition between corporations in 
 manufacture of glue under patent valid ; State ex rel. Watson v. Standard Oil 
 Co. 15 L. R. A. 145, which holds agreement for transfer of corporate stock 
 to trustees to vote and receive dividends void; Clark v. Xeedham, 51 L. R. A. 
 785, which holds void lease of manufacturing machinery, with agreement against 
 lessor's engaging in business for five years: Cummings v. Union Blue Stone 
 Co. 52 L. R. A. 262, which holds void agreement by persons controlling 90 
 per cent of sale of blue stone to sell through common agent, and maintain agreed 
 prices. 
 
 Cited in notes (8 L. R. A. 498, 500) on contracts against public policy; (11 
 L. R. A. 437, 438) on contracts to regulate competition in trade; (11 L. R. A. 
 504) on contracts in general restraint of trade; (4 L. R. A. 157) on contracts 
 in partial restraint of trade; (33 L. ed. U. S. 72) on validity of contracts in 
 restraint of trade. 
 Monopolies. 
 
 Cited in Boon v. Utica. 5 Misc. 392, 26 X. Y. Supp. 932. or when a combina- 
 tion in restraint of competition creates a monopoly; Lamed v. Syracuse, 17 App. 
 
'211 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 44 
 
 Div. -27. 44 X. Y. Supp. 857, holding a contract for paving brick calling for the 
 work to be done with brick of a particular company was void as stifling com- 
 .petition. 
 
 Cited in footnote to Stockton v. Central R. Co. 17 L R. A. 97, which holds 
 lease of railroad franchises and roads tends to monopoly. 
 
 Cited in notes (6 L. R. A. 457) on void contracts creating monopolies; (9 L. 
 II. A. 38) on corporations and monopolies; (13 L. R. A. 771) on nature of 
 monopolies; (12 L. R. A. 754) on restraining monopolies as public nuisances. 
 Km MM of illegal combinations or agreement*. 
 
 Cited in footnote to Pittsburgh Carbon Co. v. McMillin, 7 L. R. A. 46 which 
 holds party to illegal trust combination not entitled to proceeds, as against re 
 ceiver of trust assets. 
 Hfiecessary articles of commerce. 
 
 ( 'hod in Queen Ins. Co. v. State, 86 Tex. 270, 22 L. R. A. 494, 24 S. W. 397, 
 liolding insurance not a business of commerce, in which public has any right. 
 Corporation as a le.unl entity. 
 
 Cited in United States v. Milwaukee Refrigator Transit Co. 142 Fed. 255, 
 or when corporation will be regarded as a legal entity. 
 Rights of stockholders in forfeitable corporations. 
 
 Cited in Havemeyer v. Superior Ct. 84 Cal. 379, 10 L.R.A. 627, 18 Am. St. 
 Rep. 192, 24 Pac. 121, on how forfeiture of corporate charter affects rights of 
 stockholders in corporate property. 
 
 2 L. R. A. 43, JEXXINGS'S APPEAL, 2 Monaghan (Pa.) 184, 16 Atl. 19. 
 
 Limited partnerships. 
 
 Cited in Spencer Optical Mfg. Co. v. Johnson, 53 S. C. 536, 31 S. E. 392, hold- 
 ing members of firm, not strictly complying with statute as to limited part- 
 nerships, liable as general partners. 
 
 Cited in footnotes to Vanhorne v. Corcoran. 4 L. R. A. 386, holding strict 
 compliance with statute necessary to limit liability; State. Tide Water Pipe Co., 
 Prosecutor, v. State Board, 27 L. R. A. 684, holding limited partnership taxable 
 as corporation; Edwards v. Warren Linoline & Gasoline Works, 38 L. R. A. 
 791, which holds partnership association organized under laws of Pennsylvania 
 regarded as partnership, instead of corporation, in Massachusetts. 
 
 Cited in note (8 L. R. A. 712) on limited partnerships. 
 
 2 L.R.A. 44, BALTIMORE & 0. EMPLOYES' RELIEF ASSO. v. POST, 122 
 
 Pa. 579. 15 Atl. 885. 
 Admissibility of declarations of agents. 
 
 Cited in notes (36 Am. St. Rep. 493; 16 Am. St. Rep. 199), on admissibility 
 of declarations of agent to prove agency; (131 Am. St. Rep. 326), on ad- 
 mission of declarations and acts of officers and agents of carriers. 
 Presnmption as to agent's anthority. 
 
 Cited in Smith v. Crum Lynne Iron & Steel Co. 208 Pa. 466, 57 Atl. 953. hold- 
 ing authority of superintendent to bind corporation by contract to give in- 
 jured employee life employment will not be presumed; Langenheim v. Anshutz- 
 Bradberry Co. 2 Pa. Super. Ct. 291, 38 W. X. C. 508. holding burden of show- 
 ing extent of agent's authority is on party seeking to charge principal: Singer 
 Mfg. Co. v. Christian, 211 Pa. 541, 60 Atl. 1087, holding it question for jury 
 whether sewing machine agent had authority to agree to give purchaser suffi- 
 cient work to pay for machines: American Car & Foundry Co. v. Alexandria 
 Water Co. 221 Pa. 537, 128 Am. St. Rep. 749, 70 Atl. 867, 15 A. & E. Ann. 
 
2 L.R.A. 44 [ L. R. A. CASES AS AUTHORITIES. 212 
 
 Cas. 64], holding that an agent has no implied authority to accept a note in 
 payment of goods sold; Perkiomen R. Co. v. Bromer, 21 Montg. C. L. Rep. 206, 
 31 Pa. Co. Ct. 588, holding that principal is bound by declarations of agent, 
 made in course of agent's employment. 
 Contracts of railway relief associations. 
 
 Cited in Barden v. Atlantic Coast Line R. Co. 152 N. C. 332, 67 S. E. 971 
 (dissenting opinion), on validity of relief association contracts between em- 
 ployer and employee. 
 
 Cited in footnotes to Pittsburg, C. C. & St. L. R. Co. v. Moore, 44 L. R. A. 
 638, which sustains contract allowing railroad employee option between action 
 for damages or claim on relief fund; Pittsburg, C. C. & St. L. R. Co. v. Cox, 35 
 L. R. A. 507, which sustains contract that accepting relief from railroad relief 
 association shall release employer from liability; Oyster v. Burlington Relief 
 Department, 59 L. R. A. 292, which denies right to recover on certificate of 
 railroad relief department, after recovering full statutory penalty for employee's 
 death. 
 Benefits recoverable. 
 
 Cited in footnote to Robinson v. Exempt Fire Co. 24 L. R. A. 715, which holds- 
 recovery limited to benefits accrued at commencement of suit. 
 Injuries covered by accident insurance. 
 
 Cited in footnote to Lord v. American Mut. Acci. Asso. 26 L. R. A. 742, which 
 holds question for jury, whether entire loss of hand, within meaning of accident 
 policy, caused by injury without amputation above wrist. 
 \Vhat constitutes total disability. 
 
 Limited in Wall v. Continental Casualty Co. Ill Mo. App. 525, 86 S. W. 
 491, holding that in considering what constitutes a total disability reference- 
 must be had to the lot in life of the insured his vocation and capacity. 
 
 2 L. R. A. 48, GREEN v. RICK, 121 Pa. 130, 6 Am. St. Rep. 670, 15 Atl. 497. 
 Effect of acts of person jointly interested. 
 
 Cited in Hall's Estate, 10 North. Co. Rep. 104. on admissibility of acts or 
 declarations of one legatee, in absence of another, as to undue influence. 
 
 Cited in note (65 Am. St. Rep. 684) on relation of agency between persons- 
 jointly liable. 
 Notice of pendency. 
 
 Cited in Hillside Coal & I. Co. v. Heermans, 191 Pa. 119, 43 Atl. 76, holding 
 Us pendens notice to one purchasing fourteen years after commencement of ac- 
 tion; Hovey v. Elliott, 118 N. Y. 134, 23 N. E. 475, holding purchaser of bonds 
 with knowledge of pending litigation bound by result; Mansur & T. Implement 
 Co. v. Beer, 19 Tex. Civ. App. 313, 45 S. W. 972; holding action to recover 
 vendor's lien notes does not create notice by Us pendens to subsequent lienor; 
 Noyes v. Crawford, 118 Iowa, 18, 96 Am. St. Rep. 363, 91 N. W. 799, holding 
 Us pendens no notice to bona fide purchaser from one not a party, holding by 
 title antedating commencement of action. 
 
 Cited in footnote to Di Nola v. Allison, 65 L.R.A. 419, which holds title of 
 stranger purchasing after taking of appeal from judgment from one who had 
 purchased land at his own foreclosure sale subject to defeat by reversal of the 
 judgment. 
 
 Cited in notes (2 L.R.A. 615) on divorce; rule of Us pendens ; (56 Am. St. Rep. 
 869 870) on law of lis pendens 
 
213 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 50 
 
 2 L.R.A. 52, HAWS v. ST. PAUL F. & M. INS. CO. 130 Pa. 113, 15 Atl. 915, 
 
 18 Atl. 621. 
 Effect on policy of removal of property. 
 
 Cited in British-America Assur. Co. v. Miller, 91 Tex. 420, 39 L. R. A. 547, 
 G6 Am. St. Rep. 901, 44 S. W. 60, holding insurance on property located in speci- 
 fied place, not covering the property when in another place; Jacobson v. 
 Liverpool, L. & G. Ins. Co. 135 111. App. 125, holding where policy contains 
 words ''contained in" that a recovery for -goods lost cannot be had unless 
 goods are in place discribed in policy; Thorp v. ^Etna Ins. Co. 75 N. H. 252, 72 
 Atl. 690, holding that policy insuring horses contained in barn does not cover 
 loss of horse struck by lightning in pasture. 
 
 Cited in notes (26 L.R.A. 240) on location of movable property as affecting 
 fire insurance thereon; (14 Eng. Rul. Cas. 21) on effect, in construing policy, of 
 removal of property. 
 L.ON* by lightning-. 
 
 Cited in note (26 L. R. A. 269) on insurance against loss by lightning. 
 
 2 L. R. A. 54, SCHNEIDER v. DETROIT, 72 Mich. 240, 40 N. W. 329. 
 Appropriating private property for public use by change of street level. 
 
 Cited in Vanderlip v. Grand Rapids, 73 Mich. 536, 3 L. R. A. 253, 16 Am. St 
 Rep. 597, 41 N. W. 677, holding grading by raising 30-foot embankment in front 
 of lot, taking of private property; Harper v. Detroit, 110 Mich. 429, 68 N. W. 
 265, holding gross damages should be awarded to abutting owner for carrying 
 street over railroad; Phelps v. Detroit, 120 Mich. 448, 79 N. W. 640, holding 
 city liable for damages to abutting owner for unauthorized construction of bridge 
 across railroad; Atty. Gen. ex rel. Brotherhood v. Detroit, 148 Mich. 108, 111 
 N. W. 860, holding authority to grade, etc., and otherwise improve streets 
 does not authorize the laying of street railway tracks for purpose of leasing 
 them to private persons; Dean v. Ann Arbor Min. Co. 137 Mich. 467, 100 N. 
 W. 773, holding that power of a city to designate grade of railroads coming 
 into the city does not give city power in effect to vacate a street in favor of a 
 railroad thereby cutting off an abutting owner's access to his property without 
 providing him compensation; Detroit v. Detroit United R. Co. 156 Mich. 113, 
 
 120 N. W. 600, holding city liable for damages caused by change of grade of 
 a street for purpose of an elevated railroad; Detroit v. Snyder, 156 Mich. 512, 
 
 121 N. W. 258, holding grades for railroad crossings not within the common law 
 rule which gives no damages because of a change of a street grade; Detroit v. 
 Grand Trunk R. Co. 163 Mich. 234, 128 N. W. 250, holding that consequential 
 injuries from authorized separation of grades of street and railroads do not 
 constitute taking of private property. 
 
 Powers, generally, of municipal corporations. 
 
 Cited in notes (7 L. R. A. 760) on power of municipal corporations to borrow 
 money; (11 L.R.A. 124) on power of taxation; (70 L.R.A. 584) on authority 
 of municipalities to improve streets and bridges. 
 
 2 L. R. A. 56, OSAGE CITY v. LARKINS, 40 Kan. 206, 10 Am. St. Rep. 186, 
 
 19 Pac. 658. 
 Dedication of streets and alleys to pnblie use. 
 
 Cited in Sowadzki v. Salt Lake County, 36 Utah, 134, 104 Pac. Ill, holding 
 that platting of streets by landowner constitutes dedication thereof, which is 
 complete without formal acceptance by public authorities. 
 
 Cited in notes (9 L. R. A. 551) on dedication cf land to public use a matter 
 
2 L.R.A. 56] L. R. A. CASES AS AUTHORITIES. 2U 
 
 of intention; (11 L. R. A. 58) on effect of dedication for highway; (8 L. R. A_ 
 829) on use of streets in cities and towns; (12 Am. St. Rep. 156) on dedi- 
 cation to public use; (129 Am. St. Rep. 577) on what constitutes dedication. 
 to, and acceptance of, a public street. 
 
 Distinguished in Burroughs v. Cherokee, 134 Iowa, 432, 109 X. W. 876,. 
 holding that a municipality must by some act accept a dedication of a street 
 or alley before it is charged with the duty of keeping street safe. 
 Nature of public easement in alley. 
 
 Cited in Indianapolis v. Miller, 168 Ind. 287, 8 L.R.A.(N.S.) 823, 80 X. E. 626,. 
 denying power of city to forbid the opening of theater entrances and exits on 
 alleys. 
 Misuse of land dedicated to public as an abandonment. 
 
 Cited in McAlpine v. Chicago G. W. R. Co. 68 Kan. 216, 64 L.R.A. 89, 75 Pac^ 
 73, 1 Ann. Cas. 452, holding land dedicated to public as a levee does not revert 
 because used for railroad tracks and other unauthorized purposes; McAlpine v_ 
 Chicago G. W. R. Co. 68 Kan. 216, 64 L.R.A. 895, 75 Pac. 73, 1 Ann. Ca<. 452, 
 holding a strip of land not abandoned by public because railroads have been per- 
 mitted to lay tracks and build depots upon it. 
 Liability of city for defects in streets. 
 
 Cited in Fletcher v. Ellsworth, 53 Kan. 763, 37 Pac. 115, holding city not main- 
 taining alley in safe condition liable. 
 
 Cited in notes (103 Am. St. Rep. 294) on municipal liability to persons 
 injured by defects in, or want of repair of, streets; (30 Am. St. Rep. 386, I 
 Eng. RuL Cas. 622, 19 L.R.A. (N.S.) 520: 20 L.R.A.(N.S.) 574) on liability 
 of municipality for defects or obstructions in streets. 
 Temporary obstruction of liig'liway as nuisance. 
 
 Cited in Richmond v. Smith, 101 Va. 168, 43 S. E. 345, holding large, tempo- 
 rary platform erected in street for carnival performances a nuisance per se. 
 Liability for distinct, concurrent, negligent acts. 
 
 Cited in Brown v. Coxe Bros. & Co. 75 Fed. 691, holding distinct acts of neg- 
 ligence, concurring to produce injury, create joint and several liability: Fish- 
 burn v. Burlington & X. W. R. Co. 127 Iowa, 490, 103 X. W. 481, holding de- 
 fendant not relieved from negligence in erecting a fence from mere fact that 
 after it is blown down it is replaced to its original position by another party; 
 Walton v. Miller, 109 Va, 214, 132 Am. St. Rep. 908, 63 S. E. 458; holding 
 where the negligence of two parties is the efficient and proximate cause of injury 
 both are liable as joint tort feasors though there was no common duty design, 
 or concert of action between them. 
 
 Cited in note (16 Am. St. Rep. 253), on negligence of two or more persons 
 resulting in injury to third person. 
 Liability for maintaining; dangerous appliances attractive to children. 
 
 Cited in Kinchlow v. Midland Elevator Co. 57 Kan. 378, 46 Pac. 703. holding 
 negligence of owner in leaving unguarded barrel of hot water on premises ques- 
 tion for jury; Ryan v. Towar, 128 Mich. 483, 55 L. R. A. 317, 92 Am. St. Rep. 
 481, 87 N. W. 644 (dissenting opinion), majority holding landowner net liable 
 for maintaining dangerous machine in building accessible to children. 
 
 Cited in footnotes to Kopplekom v. Colorado Cement Pipe Co. 54 L. R. A. 
 284, which holds owner of uninclosed city lot liable for injury to young child 
 by toppling over of large cement pipe used by children as plaything; Rome v. 
 Cheney, 55 L. R. A. 221, which denies city's liability for drowning of child in 
 necessary sewer 4 feet wide and 2 feet deep; Missouri, K. & T. R. Co. v. Edwards, 
 
216 L. R. A. CASES AS AUTHORITIES. 2 L.R.A. 59 
 
 32 L. R. A. 825, holding railroad company not liable for injuries to child climb- 
 ing upon ties piled in yard inclosed by fence and tracks. 
 
 Cited in note (6 L.R.A.(X.S.) 907) on duty towards children with respect 
 to obstructions or defects in street. 
 
 2 L. R. A. 59, OTTAWA, 0. C. & C. G. R. CO. v. LARSEN, 40 Kan. 301, 19 Pac, 
 661. 
 
 to use public streets by railroads. 
 
 Cited in McCann v. Johnson County Teleph. Co. 69 Kan. 220, 66 L.R.A. 179, 
 76 Pac. 870, 2 A. & E. Ann. Cas. 156 (dissenting opinion), on what constituted 
 an additional servitude for which abutting owner is entitled to compensation; 
 L;i IFarpe v. Elm Twp. Gas, Light, Fuel & Power Co. 69 Kan. 105, 76 Pac. 448, 
 holding that a city could grant right to lay gas pipes in streets without com- 
 pen.sation to abutting owner or city; State ex rel. Dawson v. Parsons Street 
 R. Co. 81 Kan. 432, 28 L.R.A.(X.S.) 1086, 105 Pac. 704, holding that an 
 abutting owner can not prevent construction of a subway authorized by proper 
 public officials his only remedy is consequential damages. 
 
 Cited in footnotes to Montgomery v. Santa Ana & W. R. Co. 25 L. R. A. 654, 
 which holds railroad on street not additional burden; Chicago G. W. R. Co. v. 
 l-'irst Methodist Episcopal Church, 50 L. R. A. 488, which holds water tank in 
 street, and station, at which bells constantly rung and whistles blown within 
 a few rods of church, a nuisance. 
 
 Cited in notes (17 L. R. A. 477) on what use of a street or highway consti- 
 tutes an additional burden; (10 L. R. A. 772) on duty of railroad to keep its 
 right of way in safe condition; (1 L.R.A. (X.S. ) 90) on right of railroad to 
 use streets; (36 L.R.A. (N.S.) 694, 766) on abutter's right to compensation for 
 railroads in streets; (11 Am. St. Rep. 682) on liability of railroad to abutting 
 lot owners. 
 Liability to abutting: lot owners for obstruction of street. 
 
 Cited in Wichita & C. R. Co. v. Smith, 45 Kan. 269, 25 Pac. 623, holding abut- 
 ting owner cannot recover unless virtually deprived of access to his property; 
 Inter-State Consol. Rapid Transit R. Co. v. Early, 46 Kan. 201, 26 Pac. 422, 
 holding railway company not liable to abutting owner for authorized change of 
 street grade; Ottawa, 0. C. & C. G. R. Co. v. Peterson, 51 Kan. 607, 33 Pac. 606, 
 and Chicago, K. & W. R. Co. v. Union Investment Co. 51 Kan. 602, 33 Pac. 378, 
 holding railroad company not liable for obstructing street where vehicle space 
 and access to abutting land is left; Kansas, N. & 13. R. Co. v. Cuykendall, 42 
 Kan. 236, 16 Am. St. Rep. 479, 21 Pac. 1051; Leavenworth v. Douglass, 59 Kan. 
 419, 53 Pac. 123, holding railroad company not liable for obstructing street if 
 lot owner's access is not unreasonably abridged; Ft. Scott, W. & W. R. Co. v. 
 Fox, 42 Kan. 494, 22 Pac. 583, holding railroad company liable for complete 
 obstruction, although lot accessible from another street. 
 
 Cited in notes (9 L. R. A. 101) on use of streets in municipalties; (1 L. R. 
 A. 856) on dedication of land to street uses by laying out and platting. 
 Special injury to abutting: owner. 
 
 Cited in Garrett v. Lake Roland Elev. R. Co. 79 Md. 282, 24 L. R. A. 398, 
 29 Atl. 830, holding authorized erection of stone abutment in street no taking 
 of private property; McKay v. Enid, 26 Okla. 280, 30 L.R.A. (X.S.) 1024, 109 
 Pac. 520, holding that abutter does not sustain special injury from obstruc- 
 tion of street by railway, unless such street is his only means of access. 
 Consequential damages. 
 
 Followed without discussion in Ottawa, 0. C. & C. G. R. Co. v. Peterson, 40 
 
2 L.R.A. 59] L. R. A. CASES AS AUTHORITIES. 216 
 
 Kan. 310, 19 Pac. 660; Ottawa, 0. C. & C. G. R. Co. v. Lindall, 40 Kan. 310, 19 
 Pac. 666; Ottawa, 0. C. & C. G. R. Co. v. Hanson, 40 Kan. 310, 19 Pac. 666. 
 
 Cited in Central Branch Union P. R. Co. v. Andrews, 41 Kan. 379, 21 Pac. 
 276, holding measure of damages difference in value of land before and after 
 street obstruction. 
 
 Cited in note (13 Am. St. Rep. 242) on consequential damages for property 
 taken under power of eminent domain. 
 
 Distinguished in Leavenworth, N. & S. R. Co. v. Curtan, 51 Kan. 439, 33 Pac. 
 297, holding lot owner entitled to damages where railroad cuts off access to his 
 lot. 
 Dedication reserving franchises in streets. 
 
 Distinguished in Jones v. Carter, 45 Tex. Civ. App. 455, 101 S. W. 514, hold- 
 ing a provision in a dedication deed reserving to dedicators the exclusive right to 
 construct, operate and maintain public utilities in the town free from control to 
 be null and void. 
 
 2 L. R. A. 64, HARTFORD F. INS. CO. v. HAAS, 87 Ky. 531, 9 S. W. 720. 
 Reformation of insurance policy. 
 
 Cited in Taylor v. Glens Falls Ins. Co. 44 Fla. 284, 32 So. 887, holding that 
 no recovery could be had at law on an insurance policy made payable to party 
 who is dead at time of execution, without a reformation thereof in equity. 
 
 Cited in notes (5 L.R.A. 712) on reformation of policy of insurance; (28 
 L.R.A. (N.S.) 835, 836) on reformation of insurance policy for mistake of 
 law as to its effect; (37 L. ed. (U. S.) 457) on reformation of insurance policies 
 in equity. 
 TVature of proceeds of insurance policy. 
 
 Cited in Spalding v. Miller, 103 Ky. 414, 45 S. W. 462, holding proceeds of 
 policy do not take place of property, but indemnify for loss. 
 Insurance company bound by agent's act. 
 
 Cited in Wright v. Northwestern Mut. L. Ins. Co. 91 Ky. 213, 15 S. W. 242, 
 holding erroneous description of risk by company's agent in application does 
 not invalidate policy; Frost v. North British & M. Ins. Co. 77 Vt. 412, 60 Atl. 
 803, holding a London insurance company bound by acts of the managers of 
 general office of the United States Branch, pertaining to policy. 
 
 Cited in notes (13 Am. St. Rep. 915) on insurance agent as principal; (14 
 Am. St. Rep. 493) on misrepresentations of insurance agent as binding on 
 company; (107 Am. St. Rep. 117) on power of agent to waive provisions of 
 non-waiver or written waiver of conditions and forfeitures in policies. 
 Stipulations in policy. 
 
 Distinguished in Lauze v. New York L. Ins. Co. 74 N. H. 338, 68 Atl. 31, hold- 
 ing in absence of misrepresentation, fraud or imposition that, assured is bound 
 by limitations of policy. 
 Effect of knowledge of insurer's agent. 
 
 Cited in Wilson v. Germania F. Ins. Co. 140 Ky. 646, 131 N. W. 785, hold- 
 ing that insured can recover to extent of her insurable interest, where agent 
 delivered policy to her \vith knowledge of her want of title. 
 
 Cited in notes ( 16 L.R.A. 34, 35 ) on effect of knowledge, by insurer's agent, 
 of falsity of statements in application; (107 Am. St. Rep. 109) on imputing 
 .agent's knowledge to insured. 
 Conditions in insurance policy. 
 
 Cited in Parsons v. Lane (Re Millers' & Mfrs. Ins. Co.) 97 Minn. 107, 4 
 L.R.A. (N.S.) 236, 106 N. W. 485, 7 A. & E. Ann. Cas. 1144, holding that an 
 
217 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 67 
 
 insurance company cannot take advantage of a condition in its policy to 
 avoid payment of a loss when the facts are known to its agent when it issued 
 the policy. 
 
 Cited in note (11 L. R. A. 345) on conditions in insurance policy. 
 "VViilow's insnrable Interest in property. 
 
 Cited in Ludington v. Patton, 121 Wis. 655, 99 N. W. 614, holding that the 
 insurable interest of a widow is limited to her contingent and dower rights. 
 Retention of policy as waiver of mistake or frand of insurer. 
 
 Cited in note (67 L.R.A. 706) on retention of policy as waiver of mistake 
 or fraud of insurer or its agent. 
 
 2 L. R. A. 67, MISSOURI P. R. CO. v. LEWIS, 24 Neb. 848, 40 N. W. 401. 
 Enforcement of statntory liability in another state. 
 
 Cited in O'Reilly v. New York & N. E. R. Co. 16 R. I. 396, 6 L. R. A. 720, 
 19 Atl. 244, and Nelson v. Chesapeake & 0. R. Co. 88 Va. 976, 15 L. R. A. 587, 
 14 S. E. 838. holding right of action created by statute may be prosecuted in 
 state having similar statute; Huntington v. Attrill, 146 U. S. 675, 36 L. ed. 
 1130. 13 Sup. Ct. Rep. 224, holding statute making officers of corporation sign- 
 in false certificate liable for debts, enforceable in another state; Bain v. 
 Northern P. R. Co. 120 Wis. 416, 98 N. W. 241, holding that an action for 
 personal injuries may be prosecuted in any jurisdiction where defendant may 
 be found. 
 
 Cited in notes (56 L. R. A. 196, 203) on taking jurisdiction of cause of action 
 for death or bodily injury arising outside of state, similar statute in forun> 
 as condition; (15 L. R. A. 583) on enforceability of rights of action for caus- 
 ing death, accruing under foreign statutes; (56 L. R. A. 215) on right of rep- 
 resentative appointed in forum to maintain action for death caused outside of 
 state; (14 Am. St. Rep. 354) on action to enforce cause of action created by- 
 statute of another state. 
 I'nbloclied frog as negligence. 
 
 Cited in Cudahy Packing Co. v. Roy, 71 Neb. 606, 99 N. W. 231, holding 
 master not liable for defects of appliances of which he has no notice unless- 
 the exercising of ordinary care would have resulted in notice. 
 Actions for negligence. 
 
 Cited in footnote to Moe v. Smiley, 3 L. R. A. 341, which holds action for 
 death does not survive against administrator. 
 
 Cited in notes (4 L. R. A. 261) on liability for death caused by negligence; 
 (5 L. R. A. 172) on action for damages for death caused by negligence; (4 
 L. R. A. 798) on liability of master for neglect of duty; (2 L. R. A. 521) ore 
 master's duty to provide safe appliances. 
 Negligence not presumed from fact of accident. 
 
 Cited in Sheets v. Chicago & I. Coal R. Co. 139 Ind. 689, 39 N. E. 154 r 
 Wabash R. Co. v. Ray, 152 Ind. 398, 51 N. E. 920; Lane v. Missouri P. R. Co. 
 64 Kan. 758, 68 Pac. 626, holding operation of railroad without blocking frogs 
 not, as matter of law, negligence; Lane v. Misouri P. R. Co. 64 Kan. 758, 68 
 Pac. 626, holding, in action for injuries by faulty construction of switch, plain- 
 tiff must show it either defective or not of approved kind; Lincoln Street R. 
 Co. v. Cox, 48 Neb. 810, 67 X. W. 740, holding jury may not infer negligence 
 from mere fact of accident. 
 Cause of action as basis for granting administration. 
 
 Cited in Missouri P. R. Co. v. Bradley, 51 Neb. 600, 71 X. W. 283 (distin- 
 guished in dissenting opinion), holding cause of action for causing death, estate 
 
2 L.R.A. 67] L. R. A. CASES AS AUTHORITIES. 218 
 
 sufficient for granting administration where nonresident was injured; Re Mayo, 
 60 S. C. 415, 54 L. R. A. 666, 38 S. E. 634, holding cause of action for death 
 enforceable only by administrator warrants granting administration on estate 
 of nonresident without other assets. 
 
 Cited in footnote to Re Mayo, 54 L. R. A. 660, which authorizes appointment 
 of administrator in county where nonresident killed, to bring action for his 
 death. 
 
 Cited in notes (24 L.R.A. 686) on right of action for wrongful death, giving 
 jurisdiction for appointing administrator; (1 L.R.A. (N.S.) 886) on administra- 
 tion based on right of action for negligent killing of a. person as an asset. 
 Appointment of administrator, how assailable. 
 
 Cited in Bradley v. Missouri P. R. Co. 51 Neb. 654, 66 Am. St. Rep. 473, 71 
 N. W. 282, holding appointment of administrator, regular on record, not assail- 
 able collaterally; Missouri P. R. Co. v. Bradley, 51 Neb. 605, 71 N. W. 283, hold- 
 ing one sued by administrator cannot institute proceedings to revoke appoint- 
 jnent, showing no want of jurisdiction. 
 
 Distinguished in Elgutter v. Missouri P. R. Co. 53 Neb. 749, 74 N. W. 255, 
 fielding appointment of administrator may be collaterally attacked where record 
 shows lack of jurisdiction. 
 .Judicial notice. 
 
 Cited in footnotes to Richardson v. Buhl, 6 L. R. A. 458, holding courts will 
 judicially notice illegality of contract; Com. v. King, 5 L. R. A. 536, which 
 authorizes taking judicial notice that river not a public highway. 
 
 :2 L.R.A. 75, MISSOURI P. R. CO. v. FAGAN, 72 Tex. 127, 13 Am. St. Rep. 
 
 776, 9 S. W. 749. 
 Usage and custom as affecting 1 contract or legal liability. 
 
 Cited in American Cent. Ins. Co. v. Green, 16 Tex. Civ. App. 540, 41 S. W. 74, 
 'holding insurance custom as to use of gasoline, not provable to vary policy; 
 Pennsylvania R. Co. v. Naive, 112 Tenn. 258, 64 L.R.A. 443, 79 S. W. 124, 
 .admitting custom of carriers to suspend business on the fourth of July; Mis- 
 souri, K. & T. R. Co. v. Tarwater, 33 Tex. Civ. App. 117, 75 S. W. 957, hold- 
 Ing evidence of a custom of conductors to allow old trackman to ride on 
 trains without paying fare inadmissible. 
 
 Cited in notes (13 L.R.A. 439) on custom and usage as law; (8 Eng. Rul. Cas. 
 334, 336) on necessity that custom be limited, certain, reasonable and of 
 lawful origin. 
 Waiver of rights as condition of receiving and carrying- freight. 
 
 Cited in Kirby v. Western U. Teleg. Co. 4 S. D. 117, 30 L. R. A. 619, 46 Am. 
 St. Rep. 765, 55 N. W. 759, holding carrier cannot compel shipper to waive rights 
 as condition of carrying freight. 
 Contract limitations oil carrier's liability. 
 
 Cited in Missouri, K. & T. R. Co. v. Godair Commission Co. 39 Tex. Civ. 
 App. 302, 87 S. W. 871, holding that burden of showing that an agreement, 
 limiting the time within which suit should be brought to ninety days, is 
 reasonable, is on carrier; Southern Exp. Co. v. Owens, 146 Ala. 423, 8 L.R.A. 
 (N.S.) 374, 119 Am. St. Rep. 41, 41 So. 752, 9 A. & E. Ann. Cas. 1143, hold- 
 ing that a carrier cannot by a contract fixing the value of the property limit its 
 liability pro tanto for losses caused by its own negligence; Houtz v. Union P. 
 R. Co. 33 Utah, 194, 17 L.R.A. (N.S.) 641, 93 Pac. 439, holding a provision 
 that shipper of sheep should assume all risk of delay in transportation is 
 void. 
 
219 L. K. A. CASES AS AUTHORITIES. [2 L.R.A. 73 
 
 Cited in notes (28 L.R.A. (N.S.) 640) on effect of shipping contract limiting 
 common-law liability, signed under compulsion; (18 L.R.A. 528) on right of 
 common carrier to limit common law liability by contract in absence of negli- 
 gence. 
 Stipulation as to notice. 
 
 Cited in Ft. Worth & D. C. R. Co. v. Greathouse, 82 Tex. Ill, 17 S. W. 834, hold- 
 ing stipulation as to giving notice of damages only enforceable when pleaded and 
 reasonable; Missouri P. R. Co. v. Childers, 1 Tex. Civ. App. 305, 21 S. W. 76, 
 holding reasonableness of stipulation as to notice of loss question for jury; Hous- 
 ton & T. C. R. Co. v. Davis, 11 Tex. Civ. App. 28, 31 S. VV. 308 holding burden 
 upon carrier to allege and prove reasonableness of notice of loss stipulation. 
 
 Cited in footnote to Good v. Galveston, H. & S. A. R. Co. 4 L. R. A. 801, hold- 
 ing stipulation as to written notice of loss to be given to nearest station agent 
 unreasonable. 
 
 Cited in notes (7 L.R.A. (N.S. ) 1044) on reasonableness of time fixed in con- 
 tract of shipment of live stock for presentation of claim for damages; (17 
 L.R.A. (N.S.) 645) on notice of loss or injury to goods, required by carrier's 
 ontract as condition precedent. 
 Measure of damagres. 
 
 Cited in Galveston, H. & S. A. R. Co. v. Ball, 80 Tex. 606, 16 S. W. 441, hold- 
 ing freight charges, if not paid, should be deducted from damages; Ft. Worth 
 & D. C. R. Co. v. Greathouse, 82 Tex. Ill, 17 S. W. 834, holding market value 
 at place of destination should govern, cattle being shipped for immediate sale; 
 Taylor, B. & H. R. Co. v. Montgomery, 4 Tex. App. Civ. Cas. (Willson) 401, 
 suggesting, without deciding, that evidence as to value at time cattle were sold 
 is admissible as to damages; New York, L. E. & W. R. Co. v. Estill, 147 U. S. 
 <618, 37 L. ed. 305, 13 Sup. Ct. Rep. 444, and Baker v. Minis, 14 Tex. Civ. App. 
 416, 37 S. W. 190, holding reduction of value of stock by premature loss of off- 
 spring proper measure of damages; Gulf, C. & S. F. R. Co. v. Eddins, 7 Tex. Civ. 
 App. 121, 26 S. W. 161, holding value of injured animals at place of destination 
 proper measure of damages on contract limiting liability to defendant's own 
 line; Missouri, K. & T. R. Co. v. Webb, 20 Tex. Civ. App. 440, 49 S. W. 526, 
 holding difference between value of property at time it was delivered and at 
 time it should have been, proper measure of damages; Virginia F. & M. Ins. Co. 
 v. Cannon, 18 Tex. Civ. App. 593, 45 S. W. 945, holding evidence of market value 
 of goods where salable before and after fire admissible in proof of cash value; 
 New York, L. E. & W. R. Co. v. Estill, 147 U. S. 617, 618, 37 L. ed. 305, 13 Sup. 
 Ct. Rep. 444, holding difference in market value of cattle on arrival but for 
 and by reason of carrier's negligence proper measure of damages; Texas & P. 
 R. Co. v. White, 35 Tex. Civ. App. 522, 80 S. W. 641, holding where horses 
 are shipped over connecting lines and suit is brought against initial line for 
 injury occurring that value at point of destination is measure of damages. 
 
 Cited in note (5 Eng. Rul. Cas. 526) on measure of damages for carrier's 
 breach of contract. 
 Dnties niitl responsibilities of carriers of stock. 
 
 Cited in footnote to Good v. Galveston, H. & S. A. R. Co. 4 L. R. A. 8Ul. 
 which holds carrier liable for needless delay, confinement, and bruising of live 
 stock. 
 
 Cited in notes (9 L. R. A. 450, 452) on duty to furnish cars for transporta- 
 tion, and safe mode of delivery; (4 L. R. A. 545) on responsibility of cariers of 
 live stock; (13 L. R. A. 202) on construction of contract for shipment of live 
 stock; (18 L.R.A. (N.S.) 92) on carrier as insurer of livestock; (37 L. ed. U. S. 
 
2 L.R.A. 75] L. R. A. CASES AS AUTHORITIES. 220 
 
 293, 295) on duty and liability as carrier of live stock; (63 Am. St. Rep. 
 554, 563) on respective duties of carriers and shippers of live stock; (130 Am. 
 St. Rep. 446) on carrier's liability for loss of, or injury to, livestock. 
 
 2 L.R.A. 78, DAVIS v. KLINE, 96 Mo. 401, 9 S. W. 724. 
 Attorney and client. 
 
 Cited in Aultman v. Loring, 76 Mo. App. 70, holding attorney buying property 
 on execution holds subject to client's election to take; Eoff v. Irvine, 108 Mo. 
 383, 32 Am. St. Rep. 609, 18 S. W. 907, holding attorney consulted about land 
 title may not, though withdrawn from employment, purchase outstanding title; 
 Bucher v. Hohl, 199 Mo. 327, 116 Am. St. Rep. 492, 97 S. W. 922, denying 
 right of attorney to acquire title to clients property decreed to client as 
 alimony; Guinan v. Donnell, 201 Mo. 204, 98 S. W. 478, holding that duty of 
 professional confidence of attorney to client does not cease though relation of 
 attorney and client ceases. 
 
 Distinguished in Stewart v. Perkins, 110 Mo. 671, 19 S. W. 989, holding attor- 
 ney taking no advantage of knowledge acquired in professional capacity may as- 
 sert adverse title. 
 Testimony of deceased witness, how proved. 
 
 Cited in Dwyer v. Bassett, 1 Tex. Civ. App. 515, 21 S. W. 621, holding agreed 
 statement of facts on appeal, its correctness being proved, admissible to prove 
 testimony of deceased witness. 
 
 Cited in note (91 Am. St. Rep. 208) on method of proof of testimony of 
 deceased witness. 
 
 Distinguished in Fisher v. Fisher, 131 Ind. 464, 29 N. E. 31, holding bill of 
 exceptions not admissible to prove evidence of deceased witness, without proof 
 of correctness; Simmons v. Spratt, 26 Fla. 463, 9 L. R. A. 347, 8 So. 123, holding 
 bill of exceptions not admissible of itself to prove testimony of deceased wit- 
 ness. 
 Eqnity disregards incompetent evidence. 
 
 Cited in Bush v. Arnold, 50 Mo. App. 17, holding court of equity must dis- 
 regard incompetent evidence in deciding case; McCormick v. Parsons, 195 Mo. 
 101, 92 S. W. 1162, holding that in equity cases improperly admitted or rejected 
 evidence will b* disregarded on appeal; State ex rel. Guinan v. Jarrott, 183 Mo. 
 218, 81 S. W. 876, holding an appeal in equity cases the court consider* 
 evidence improperly received, or excluded when exceptions are properly reserved, 
 but will not reverse judgment for that reason; Morris v. Parry, 110 Mo. App. 
 683, 85 S. W. 620, holding that because suit is in equity the rules of evidence as 
 to competency of testimony are not changed; State ex rel. Priddy v. Gibson, 184 
 Mo. 503, 83 S. W. 472, holding that in equity cases the appellate court will review 
 the whole testimony. 
 Sufficiency of sheriff's deed. 
 
 Cited in Hall v. Klepzig, 99 Mo. 89, 12 S. W. 372, holding sheriff's deed suffi 
 cient where recitals conform to execution, though varying from judgment. 
 
 2 L.R.A. 80, GURLEY v. ARMSTEAD, 148 Mass. 267, 12 Am. St. Rep. .jr>. 
 
 19 N. E. 389. 
 Conversion hy receipt of g-oods from possessor. 
 
 Cited in Robert C. White Live Stock Commission Co. v. Chicago. M. & St. P. 
 R. Co. 87 Mo. App. 336, holding possession of personal property prima facie evi- 
 dence of ownership; Steele v. Marsicano, 102 Cal. 670, 36 Pac. 920, holding 
 there must be a tortious act to establish conversion; Bates v. Weir, 121 App. 
 Div. 279, 305 X. Y. Supp. 785, holding that a common carrier who receives- 
 
221 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 81 
 
 goods from one whose possession is tortious and without knowledge of the 
 rights of the true owner is not liable in conversion. 
 
 Cited in notes (50 L.R.A. 652) on liability of servant or agent for conver- 
 sion, trespass, or other positive act of wrongdoing against third parties under 
 orders of his employer; (18 L.R.A. (X.S.) 494) on liability for conversion by 
 accepting goods for transportation from one not the owner; (24 Am. St. Rep. 
 803) on conversion of personalty sufficient to sustain trover; (34 Am. St. Rep. 
 735 ) on conversion by common carriers. 
 
 Distinguished in Wright & C. Wire Cloth Co. v. Warren, 177 Mass. 289, 58 
 N. E. 1082, holding notice of consignment to plaintiff, with words "Notify A.," 
 not to authorize treatment of A. as consignee. 
 
 2 L. R. A. 81, RIDEOLT v. KNOX, 148 Mass. 368, 12 Am. St. Rep. 560, 19 N. 
 
 E. 390. 
 Legislation under police po\ver to prevent nuisance or pnbllc injury. 
 
 Cited in Com. v. Parks, 155 Mass. 532, 30 N. E. 174, holding that it was valid 
 exercise of power for board of aldermen to forbid blasting without its written 
 consent; Townsend v. State, 147 Ind. 632, 37 L. R. A. 299, 62 Am. St. Rep. 477, 
 47 X. E. 19, holding valid, act to prevent wasteful use of natural gas; Health 
 Department v. Trinity Church, 145 N. Y. 42, 27 L.R.A. 714, 45 Am. St. Rep. 
 579, 39 N. E. 833, holding act compelling use of water in tenements valid: 
 Com. v. Packard. 1S5 Mass. 65, 69 X. E. 1067, sustaining an act, prohibiting 
 the storage keeping manufacture or refining of crude petroleum in any city 
 -or town without a license; Com. v. Sisson, 189 Mass. 251, 1 L.R.A. (N.S.) 
 755, 109 Am. St. Rep. 630, 75 N. E. 619, sustaining an act forbidding the 
 casting of saw dust into a stream; State v. Marble, 72 Ohio St. 34, 70 L.R.A. 
 837, 106 Am. St. Rep. 570, 73 X. E. 1063, 2 A. & E. Ann. Cas. 898, sustaining 
 an act prescribing qualifications of one who may treat a person for a disease for 
 a fee; Pacific States Supply Co. v. San Francisco, 171 Fed. 732, holding an 
 ordinance prohibiting the operating of a stone quarry within city limits to be 
 invalid; Masonic Fraternity Temple Asso. v. Chicago, 131 111. App. 29, holding 
 .a municipal corporation to have no power to order reconstruction of buildings; 
 Bonnett v. Vallier, 136 Wis. 202, 17 L.R.A.(X.S.) 491, 128 Am. St. Rep. 1061, 
 110 X. W. 885, holding a law requiring in the construction of all tenement 
 houses so as to leave a court of six feet between lot line and wall of build- 
 ing to be unreasonable. 
 
 Cited in notes (36 L. R. A. 593) on power of municipal corporation to de- 
 fine, prevent, and abate nuisances. 
 . Regulation of fences or the like on private lands. 
 
 Cited in Horan v. Byrnes, 72 X. H. 96, 62 L.R.A. 603, footnote, p. 602, 54 Atl. 
 945, upholding statute making private nuisance of boundary fence exceeding 5 
 feet, erected solely to annoy; Brostrom v. Lauppe, 179 Mass. 317, 60 X. E. 785, 
 holding act relating to height of fences applies only to fence on or near divi- 
 sion line; Spaulding v. Smith, 162 Mass. 544, 39 X. E. 189, holding act regulat- 
 ing height of fences does not apply to fence on opposite side of highway; United 
 States v. Douglas-Willan Sartoris Co. 3 Wyo. 301, 22 Pac. 92 (dissenting opin- 
 ion), majority holding act forbidding inclosure of public lands invalid so far 
 as it forbids erection of fence wholly on owner's land; Camfield v. United States, 
 167 U. S. 523, 42 L. ed. 261, 17 Sup. Ct. Rep. 864, holding owner cannot build 
 fence on his own land so as to inclose public lands forbidden by Congress ; Dixon 
 v. Mosser, 136 111. App. 495, holding that a city has no power to regulate the 
 height of a partition fence unless perhaps, the height is so great as to be a 
 menace to human life; St. Louis Gunning Advertising Co. v. St. Louis, 235 
 
2 L.R.A. 81] L. R. A. CASES AS AUTHORITIES. 222 
 
 Mo. 195, 137 S. W. 929, holding valid, ordinance providing that billboard shall not 
 be over fourteen feet high, nor closer than four feet of the ground nor nearer 
 than fifteen feet of front line, nor six feet of side line of lot; Passaic v. Paterson 
 Bill, Posting, Advertising & Sign Painting Co. 71 X. J. L. 77, 58 Atl. 343, on the 
 invalidity of a law to prohibit the maintaining of signboards and fences. 
 
 Distinguished in Passaic v. Paterson Bill, Posting, Advertising & Sign Paint- 
 ing Co. 72 N. J. L. 288, 111 Am. St. Rep. 676, 62 Atl. 267, 5 A. & E. Ann. 
 Cas. 995, holding void an ordinance requiring signs and billboards to be con- 
 structed not less than ten feet from street line. 
 Application to existing: structures .or nuisances. 
 
 Cited in Com. v. Roberts, 155 Mass. 283, 16 L.R.A. 401, 29 X. E. 522, holding 
 act to regulate water-closets applied to violations continuing after its passage. 
 
 Cited in note (52 L.R.A. 940) on constitutionality of retroactive statute 
 creating right of action or set off on account of past acts or transactions. 
 Building structure on otvn land. 
 
 Cited in Metzger v. Hochrein, 107 Wis. 270, 50 L. R. A. 307, 81 Am. St. Rep. 
 841, 83 N. W. 308, and Bordeaux v. Greene, 22 Mont. 256. 74 Am. St. Rep. 600, 
 56 Pac. 218, holding owner can build on his own land fence to any height. 
 
 Cited in notes (123 Am. St. Rep. 573) on duty and liability of land owners to 
 adjoining proprietors; (1 Eng. Rul. Cas. 764) on nonliability for diminution of 
 water on adjoining land by pumping from well on one's own land. 
 Actionable spite fence or nuisance. 
 
 Cited in Lord v. Langdon, 91 Me. 222, 39 Atl. 552. holding building fence 
 above legal height was malicious act; Hunt v. Coggin, '66 N. H. 141, 20 Atl. 
 250, holding structure for signboard for store not shown to have been erected 
 for purpose of annoying; Smith v. Morse, 148 Mass. 409, 19 X. E. 393, holding 
 illegal fence being maliciously allowed to stand, owner liable even if nothing 
 done since passage of act; Barger v. Barrhiger, 151 N. C. 438, 25 L.R.A. (X'.S.) 
 835, 66 S. E. 439, holding maliciously to construct a fence on one's property to 
 cut off the light and air from his neighbor's windows is actionable. 
 
 Cited in notes (40 L.R.A. 178, 182) on liability for the malicious erec- 
 tion of a fence; (21 Am. St. Rep. 512) on malicious fences; (107 Am. St. Rep. 
 232) on what are public nuisances. 
 Participation in nuisance essential to liability. 
 
 Cited in note (32 L.R.A. (X.S.) 902) on connection with or participation in 
 nuisance essential to responsibility. 
 Malice as tort. 
 
 Cited in Morrison v. Lawrence, 186 Mass. 462, 72 X. E. 91, holding that in 
 actions of tort at common law intent or motive is material only on the 
 measure of damages. 
 
 Cited in notes (62 L.R.A. 686) on effect of bad motive to make actionable 
 what would not otherwise be so; (25 Eng. Rul. Cas. 83) on immateriality of 
 motive on liability for wilfully and intentionally harming another in exer- 
 cise of a legal right. 
 Injunction to prevent nuisance. 
 
 Cited in Middlesex Co. v. McCue, 149 Mass. 104, 14 Am. St. Rep. 402, 21 X. 
 E. 230, holding owner will not be enjoined from cultivating his land, although 
 solid matter carried into neighbor's pond; Karasek v. Peier, 22 Wash. 427. 50 
 L. R. A. 348, 61 Pac. 33, autborizing injunction against erection of fence where 
 malevolence shown; Koblegard v. Hale, 60 W. Va. 39, 114 Am. St. Rep. 868, 53 
 S. E. 793, 9 A. & E. Ann. Cas. 732, denying the right to enjoin the main- 
 
223 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 83 
 
 taining of a fence on sole ground that it deprived a building on adjoining lot 
 of light and air. 
 
 Cited in footnote to Hague v. Wheeler, 22 L. R. A. 141, which denies liability 
 to adjoining owner for permitting escape of gas from well. 
 Police restraint on business. 
 
 Cited in Com. v. Gilbert, 160 Mass. 160, 22 L. R. A. 442, 35 N. E. 454, holding 
 valid act forbidding catching and selling fish artificially propagated and main- 
 tained; John P. Squire & Co. v. Tellier, 185 Mass. 21, 102 Am. St. Rep. 322, 
 G9 X. E. 312, upholding a statute providing that sales of merchandise in 
 bulk and not in ordinary course of business shall be void as against creditors 
 unless certain requirements for information and protection of creditors is 
 complied with; State v. Redmon, 134 Wis. 114, 14 L.R.A. (X.S.) 238, 126 Am. St. 
 Rep. 1003, 114 X. W. 337, 15 A. & E. Ann. Gas. 408, holding unconstitutional 
 a law absolutely giving occupant of lower berth authority as to closing of 
 upper berth when unoccupied; Aikens v. Wisconsin, 195 U. S. 205, 49 L. ed. 159, 
 25 Sup. Ct. Rep. 3, holding valid a statute prohibiting combinations for the 
 purpose of willfully or maliciously injuring another in his reputation. 
 
 Cited in note (21 L. R. A. 794) on police restraints upon business. 
 Declaration of wife against Husband's interest. 
 
 Cited in Fourth Xat. Bank v. Xichols, 43 Mo. App. 390, holding unsworn dec- 
 laration by wife against husband's interest inadmissible. 
 Right to compensation for destruction of nnisance. 
 
 Cited in Taft v. Com. 158 Mass, 547, 33 X. E. 1046, on legislative change in 
 law of nuisance without compensation; Miller v. Horton, 152 Mass. 547, 10 
 L.R.A. 119, 23 Am. St. Rep. 850, 26 N. E. 100, holding horse cannot be condemned 
 to be killed without compensation, unless it has a contagious disease. 
 
 2 L. R. A. 83, DODGE v. BOSTOX & B. S. S. CO. 148 Mass. 207, 12 Am. St. Rep. 
 
 541, 19 X. E. 373. 
 Hciii n 11 i n;i and ending 1 of relation of carrier and passenger. 
 
 Cited in June v. Boston & A. R. Co. 153 Mass. 82, 26 N. E. 238, holding per- 
 son walking toward station intending to buy ticket not a passenger; Seawell 
 v. Carolina C. R. Co. 132 N. C. 859, 44 S. E. 610, holding person waiting at sta- 
 tion to take train entitled, as passenger, to protection from assault; Fremont, 
 E. & M. Valley R. Co. v. Hagblad, 72 Xeb. 781, 4 L.R.A. (X.S.) 258, 101 X. W. 
 1033, 9 A. & E. Ann. Cas. 1096, holding carrier owes duty, as a passenger 
 to a party from time he goes to depot within a reasonable time before de- 
 parture of train and, by purchase of ticket, or otherwise has indicated to 
 carrier his intention to become a passenger; Greb v. Pennsylvania R. Co. 41 
 Pa. Super. Ct. 70, denying recovery from railroad by passenger pursued, after 
 alighting, along station platform, by baggage master and conductor and wan- 
 tonly and maliciously assaulted. 
 
 Distinguished in Webster v. Fitchburg R. Co. 161 Mass. 300, 24 L. R. A. 524, 
 37 N. E. 165. holding running to board train outside station not proper presen- 
 tation for carriage; Creamer v. West End Street R. Co. 156 Mass. 322. 16 L. R. 
 A. 491, 32 Am. St. Rep. 456, 31 X. E. 391, holding relation of passenger to 
 carrier terminates as soon as he alights from street car in street. 
 Leaving and returning at intermediate points. 
 
 Cited in Alabama G. S. R. Co. v. Coggins, 32 C. C. A. 5, 60 U. S. App. 140, 
 88 Fed. 459, holding person alighting at intermediate station for usual and 
 reasonable purposes still a passenger; Chicago, R. I. & P. R. Co. v. Sattler, 64 
 Xeb, 640, 57 L. R. A. 892, 97 Am. St. Rep. 666, 90 X. W. 649, holding rule 
 
2 L.R.A. 83] L. R. A. CASES AS AUTHORITIES. 224 
 
 inapplicable where passenger leaves train at point not intended for such pur- 
 pose; Laub v. Chicago, B. & Q. R. Co. 118 Mo. App. 499, 94 S. W. 550, 
 holding that duty does not cease to a passenger in lighting at an intermediate 
 point for recreation; Wood v. Metropolitan Street R. Co. 181 Mo. 443, 81 S. 
 W. 152, holding one transferring at a street railway transfer point to be a 
 passenger; Gannon v. Chicago, R. I. & P. R. Co. 141 Iowa, 40, 23 L.R.A. (N.S.) 
 1062, 117 N. W. 966; St. Louis, I. M. & S. R Co. v. Glossup, 88 Ark. 229, 114 S. 
 W. 247, holding that a party does not cease being a passenger by alighting at 
 a station before reaching destination where he exercises due care in doing so; 
 Austin v. St. Louis & S. F. R. Co. 149 Mo. App. 405, 130 S. VV. 385, holding 
 that relation is not terminated by passenger alighting at request of con- 
 ductor to help save property in wreck; Layne v. Chesapeake & 0. R. Co. 66 
 W. Va. 626, 67 S. E. 1303, holding that passenger does not cease to be such 
 by alighting at intermediate station to engage in altercation with railroad 
 employee. 
 
 Cited in footnote to De Kay v. Chicago, M. & St. P. R. Co. 4 L. R. A. 632, 
 which holds that passenger leaving train at intermediate station assumes respon- 
 sibility for his movements. 
 
 Cited in notes (15 L.R.A. 399) on rights and liability of parties when pas- 
 senger temporarily leaves vehicle before completing journey; (40 L.R.A. (N.S.) 
 1062) on liability of carrier for wilful torts of servants to passengers. 
 
 Distinguished in Chicago, R. I. & P. R. Co. v. Sattler, 64 Neb. 640, 97 Am. 
 St. Rep. 666, 90 N. W. 649, holding one leaving train sidetracked at intermedi- 
 ate station to get water not entitled to protection as passenger. 
 Degree of care, skill, and diligence due passenger. 
 
 Cited in Gilbert v. West End Street R. Co. 160 Mass. 406, 36 N. E. 60, holding 
 carrier not responsible for all accidents by any means preventable; Illinois C. R. 
 Co. v. Kuhn, 107 Tenn. Ill, 64 S. W. 202; Olds v. New York, N. H. & H. R. Co. 
 172 Mass. 77, 51 N. E. 450; Montgomery & E. R. Co. v. Mallette, 92 Ala. 215, 9 
 So. 363, holding law requires carrier to use highest care, diligence, and skill 
 known to careful, diligent, and skilful carriers; Central of Georgia R. Co. v. 
 Johnston, 106 Ga. 136, 32 S. E. 78, upholding charge that carrier should exercise 
 'extra high degree of care" toward passengers; Alabama G. S. R. Co. v. Hill, 
 93 Ala. 521, 30 Am. St. Rep. 65, 9 So. 722, upholding charge implying that law 
 requires carrier to use "strict diligence;" Galligan v. Old Colony Street R. Co. 
 182 Mass. 215, 65 N. E. 48, holding street railway company bound to exercise 
 highest degree of care to guard against landslide in cut on highway; Nichols v. 
 Lynn & B. R. Co. 168 Mass. 530, 47 N. E. 427, holding it question for jury whether 
 street car was started with due care; Re Boston, 159 Fed. 266, holding that 
 care required not necessarily the utmost care and diligence of which men are 
 capable of exercising; Chicago, R. I. P. R. Co. v. Ralston, 77 Kan. 202, 93 Pac. 
 592, holding duty of carrier of passengers on freight trains is the highest 
 possible degree of care and diligence to which such train is susceptible con- 
 sidering its construction, equipment and use as a carrier of freight; liges v. 
 St. Louis Transit Co. 102 Mo. App. 535, 77 S. W. 93, holding street railway liable 
 where negligence of motorman caused car to lurch; Gardner v. Boston Elev. R. 
 Co. 204 Mass. 216, 90 N. E. 534, holding street car company liable where 
 conductor started car without looking to see if anyone was still getting on 
 car thus injuring one just stepping on step of car; Marshall v. Boston & W. 
 Street R. Co. 195 Mass. 286, 81 N. E. 195, holding where an accident oc- 
 curred because of a defect in iron of wheel of a car it was a question for jury 
 whether every reasonable precaution had been taken to reveal defect; Egan 
 v. Old Colony Street R. Co. 195 Mass. 160, 80 N. E. 696, holding that jury 
 
225 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 83 
 
 might infer negligence, against a street car company from mere fact of a 
 derailment of a car at a switch though cause of accident was unexplained; 
 Campbell v. Duluth & N. E. R. Co. 107 Minn. 361, 22 L.R.A. (N.S.) 193, 120 N. 
 W. 375, holding that a carrier whose primary business is to transport logs 
 is not bound to degree of perfection in carrying passengers as one whose business 
 is more ideal; Millmore v. Boston Elev. R. Co. 194 Mass. 326, 11 L.R.A. (N.S.) 
 142, 120 Am. St. Rep. 558, 80 N. E. 445, holding that a street car conductor is 
 not bound as a matter of law to see that a passenger has alighted before 
 starting car; Kuhlen v. Boston & N. Street R. Co. 193 Mass. 346, 7 L.R.A. 
 (N.S.) 731, 118 Am. St. Rep. 516, 79 N. E. 815, holding that when carrier can 
 anticipate a crowd it is bound to provide extra men, to protect its passengers 
 from injury from the struggling of crowd. 
 
 Cited in notes (2 L. R. A. 252) on liability of railroads as carriers, as in- 
 surers of lives and safety of passengers; (6 L. R. A. 241) on care and diligence 
 required of carrier of passengers; (8 L. R. A. 674) on duty of carriers to use 
 uare for safety of passengers; (12 L. R. A. 746) on duty of railroad company to 
 furnish proper cars; (5 Eng. Rul. Cas. 462) on extent of duty to secure safety 
 of passengers. 
 In and about stations. 
 
 Cited in Jordan v. New York, N. H. & H. R. Co. 165 Mass. 347, 32 L. R. A. 102, 
 52 Am. St. Rep. 522, 43 N. E. Ill, upholding recovery for injury received, by 
 person intending to become passenger, in station toilet room; Brooks v. Old Col- 
 ony R. Co. 168 Mass. 167, 46 N. E. 566, holding carrier not liable to passenger 
 struck upon station platform by runaway horse; Bethmann v. Old Colony R. Co. 
 155 Mass. 354. 29 X. E. 587, holding carrier owes person alighting on station 
 platform utmost care and diligence consistent with the business; Daniel v. Peters- 
 burg R. Co. 117 N. C. 610, 23 S. E. 327, holding carrier liable for wrongful shoot- 
 ing of traveler by depot agent; Young v. New York, N. H. & H. R. Co. 171 Mass. 
 34, 41 L. R. A. 193, 50 N. E. 455, holding person at station intending to take 
 train entitled to safe access; Daniel v. Petersburg R. Co. 117 N. C. 610, 4 L.R.A. 
 (N.S.) 502, 23 S. E. 327, holding it question for jury as to whether an 
 employee of carrier was acting within scope of employment, in shooting one, 
 who has used abusive language to him in respect to storage charge on bag- 
 gage where party is just leaving depot; Burke v. St. Louis S. W. R. Co. 120 
 Mo. App. 691, 97 S. W. 981, holding that a steamship company must use 
 ordinary care to keep its landing places in safe condition for that purpose; 
 Pomroy v. Bangor & A. R. Co. 102 Mo. 499, 67 Atl. 561, holding carrier liable 
 where it jerked a car temporarily used as a station, thus injuring a party 
 waiting to take train; Legge v. New York, N. H. & H. R. Co. 197 Mass. 90, 
 23 L.R.A. (N.S.) 636, 83 N. E. 367, holding knowledge of the use by passengers 
 of a particular route in leaving car does not amount to an invitation to use 
 it where other proper arrangements have been provided. 
 
 Cited in notes (6 L. R. A. 193) on duty of carrier to keep platforms and ap- 
 proaches in safe condition; (20 L. R. A. 521) on measure of care which a carrier 
 must take to keep its platforms and approaches safe. 
 Car platforms. 
 
 Cited in Gilman v. Boston & M. R. Co. 168 Mass. 455, 47 N. E. 193, holding 
 carrier liable to passenger injured by slipping on snow on car platform. 
 Passenger elevators. 
 
 Cited in footnote to Goodsell v. Taylor, 4 L. R. A. 673, which holds manager of 
 passenger elevator to same degree of care as common carrier. 
 L.R.A. Au. Vol. I. 15. 
 
 I 
 
2 L.R.A. 83] L. R. A. CASES AS AUTHORITIES. 226 
 
 Reasonableness of carrier's regulations. 
 
 Cited in Sweetland v. Lynn & B. R. Co. 177 Mass. 579, 51 L. R. A. 784, 59 X. 
 E. 443, holding rule forbidding use of platform by passengers may be waived or 
 abandoned; Jackson v. Grand Ave. R. Co. 118 Mo. 220, 24 S. W. 192, holding 
 passengers should learn carrier's reasonable regulations for their safety. 
 
 Cited in note (3 L. R. A. 134) on passenger's rights to proper treatment by 
 carrier. 
 
 2 L. R. A. 87, ATTY. GEN. ex rel. ADAMS v. TARR, 148 Mass. 309, 19 N. E. 358. 
 Rights in public waters. 
 
 Cited in footnotes to California Nav. & Improv. Co. v. Union Transp. Co. 46 
 L. R. A. 825, which holds public use as landing place of shore of navigable waters 
 outside municipality not included in dedication for highway; Com. v. Man- 
 chester, 9 L. R. A. 236, which holds state may regulate fishing in bay within its 
 borders. 
 
 Cited in notes (9 L.R.A. 807) on fishery rights; (131 Am. St. Rep. 7G2) on 
 right to use land under or along navigable waters while fishing. 
 Title by custom. 
 
 Cited in Becker v. Hall, 116 Iowa, 593, 56 L. R. A. 557, 88 N. W. 324, holding 
 custom to appropriate ice in public stream insufficient to support title contrary 
 to public right; Becker v. Hall, 116 Iowa, 593, 56 L.R.A. 573, 38 X. W. 3:24. 
 holding that a custom as to appropriation of ice formed on public waters which 
 is clearly unreasonable and in conflict with public rights will not be sustained: 
 Clark v. Allaman, 71 Kan. 234, 70 L.R.A. 983, 80 Pac. 571, holding that 
 evidence cannot be received of local customs contrary to the established rights 
 of a riparian owner. 
 
 Cited in notes (2 L. R. A. 836) on usages and customs; (3 L. R. A. 860) on 
 binding force of custom and usage; (13 L. R. A. 439, 440) on custom and usage 
 as law; (6 L. R. A. 261) on estate created by dedication. 
 Title by possession adverse to public right. 
 
 Cited in Atty. Gen. v. Vineyard Grove Co. 181 Mass. 509, 64 X. E. 75, holding 
 one year's possession insufficient. 
 
 Cited in note (53 L. R. A. 902) on prescriptive right to maintain public 
 nuisance. 
 Procedure by attorney general. 
 
 Cited in Atty. Gen. v. Williams, 174 Mass. 484, 47 L. R. A. 319, 53 X. E. 77, 
 holding information in equity by attorney-general proper method to prevent vio- 
 lation of building regulations in Boston; McQuesten v. Atty. Gen. 187 Mass. 
 186, 72 N. E. 965, holding in a proceeding in which the commonwealth is a 
 party the attorney-general may authorize an attorney at law 7 to represent a 
 town in proceedings. 
 
 Cited in notes (42 L.R.A. 823) on abatement of buildings, fences, etc., as nui- 
 sances by injunctions at puit of municipal authorities; (14 Am. St. Rep. 454) 
 on abatement of nuisance by suit in name of attorney -general ; (19 Eng. Rul. 
 Cas. 305) on relief in equity in behalf of public against obstruction of public- 
 highway by proceedings by attorney-general. 
 Title to provincial settlements by royal grant. 
 
 Cited in Concord Mfg. Co. v. Robertson, 66 X. H. 2, 18 L. R. A. 681, 25 Atl. 
 718, holding grant of township by provincial executive in name of King passed 
 title to grantees as owners and tenants in common. 
 
227 L. R. A. CASES AS AUTHORITIES. [fc L.R.A. 90 
 
 2 L. R. A. 92, PEOPLE ex rel. ATTY. GEN. v. STANFORD, 77 Cal. 360, 19 Pac. 
 
 693, 18 Pac. 85. 
 Action* for usurpation of corporate powers. 
 
 Cited in People v. Reclamation Dist. No. 136, 121 Cal. 529, 50 Pac. 1068, hold- 
 ing state not estopped from questioning validity of corporation by suffering, for 
 twenty years, exercise of corporate rights; People ex rel. Stone v. Jefferds, 126 
 Cal. 302, 58 Pac. 704, holding dismissal of action for usurpation of franchise for 
 laches in prosecution, no bar to subsequent action. 
 Parties to action to teat corporate existence. 
 
 Cited in People v. Gunn, 85 Cal. 244, 24 Pac. 718, holding municipal corpora- 
 tion necessary party to proceeding to test validity of its charter; State ex rel. 
 Sanche v. Webb, 97 Ala. 119, 38 Am. St. Rep. 151, 12 So. 377, holding alleged 
 corporation not proper party to action for fraudulent usurpation of corporate 
 powers; People ex rel. Sels v. Reclamation Dist. No. 551, 117 Cal. 117, 48 Pac. 
 1016, raising, without deciding, question whether action of quo warranto can be 
 maintained against reclamation district whose corporate existence is questioned; 
 State ex rel. Prosecuting Atty. v. South Park, 34 Wash. 165, 101 Am. St. 
 Rep. 998, 75 Pac. 636, holding where a municipal corporation has no legal ex- 
 istence the suit must be brought against the persons assuming to act in a 
 corporate capacity; State ex rel. Gilbert v. Union Invest. Co. 7 S. D. 53, 63 N. 
 W. 232, holding in an action to annul the existence of a corporation the action 
 must be in the name of the state alone as plaintiff and the corporation as only 
 proper party defendant. 
 
 Distinguished in People v. Montecito Water Co. 97 Cal. 277, 33 Am. St. Rep. 
 172, 32 Pac. 236, holding the making of a corporation defendant with an aver- 
 ment that it is a corporation de facto but not de jure, does not estop the state 
 from questioning its corporate character. 
 Assignment of franchise to legally organized corporation. 
 
 Cited in Los Angeles v. Los Angeles City Water Co. 177 U. S. 575, 44 L. ed. 
 894, 20 Sup. Ct. Rep. 736, holding contract made by municipality at time when 
 decisions established right of legislature to grant franchise by special legisla- 
 tion not affected by subsequent decisions or change of Constitution; Santa 
 Ana Water Co. v. San Buenaventura, 56 Fed. 351, holding that where one 
 duly assigned a contract to furnish water to a city to a corporation that cor- 
 poration also got rights as respect fixing rates. 
 
 2 L. R. A. 96, ATLANTA NAT. BANK v. BURKE, 81 Ga. 597, 7 S. E. 738. 
 Liability of bank paying forged paper. 
 
 Cited in Kenneth Invest. Co. v. National Bank, 96 Mo. App. 145, 70 S. W. 173, 
 holding bank liable to depositor for money paid out on forged checks; Houser 
 v. National Bank, 27 Pa. Super. Ct. 619, holding that unless the drawer of 
 a check was negligent in delivering the check to the supposed agent of payee the 
 bank will not be protected in paying it on a forged endorsement; Central Nat: 
 Bank v. National Metropolitan Bank, 31 App. D. C. 398, 17 L.R.A. (N.S.) 
 523, holding maker, not one who cashes check, responsible where one under 
 an assumed name fraudulently gets maker to make him a check and endorses 
 check in assumed name and gets money the maker having identified him. 
 
 Cited in footnotes to Critten v. Chemical Nat. Bank, 57 L. R. A. 529. which 
 holds bank paying plainly altered check to clerk of drawer without asking ex- 
 planation liable for loss from subsequent payment of similar checks; Pickle v. 
 People's Nat. Bank, 7 L. R. A. 93, which holds acceptance of cliook necessary to 
 give right of action against bank; Janin v. London & S. F. Bank, 14 L. R. A 
 
 I 
 
2 L.R.A. 96] L. R. A. CASES AS AUTHORITIES. 228 
 
 320, which holds depositor's delay in returning forged check no defense to bank 
 not injured thereby. 
 
 Cited in notes ( 12 L. R. A. 793 ) on liability of bank paying on forged signa- 
 ture; (27 L. R. A. 428) on duty of depositor in respect to checks bearing 
 forged indorsements charged against account; (50 L. R. A. 80) on loss in case 
 of issue or indorsement of check or bill to impostor; (17 Am. St. Rep. 898) oh 
 liability of bank paying forged check. 
 i!ut> to know signature. 
 
 Cited in footnotes to Kummel v. Germania Sav. Bank, 13 L. R. A. 786, which 
 holds vigilance to detect forgery due to depositor by savings bank officers; First 
 Nat. Bank v. Northwestern Nat. Bank, 26 L. R. A. 289, which holds genuineness 
 of indorsement not admitted by drawee accepting or paying check. ' 
 
 Cited in notes (6 L. R. A. 724) on obligations of banker; (6 L. R. A. 626) on 
 duty and obligation of bankers. 
 Rights of payer of forged paper. 
 
 Cited in footnotes to Northwestern Nat. Bank v. Bank of Commerce, 15 L. R. 
 A. 102, which holds bank crediting forged draft to payee and forwarding for 
 collection a bona fide holder; Iron City Nat. Bank v. Ft. Pitt Nat. Bank, 23 L. 
 R.A. 615, which denies right of recovery by payer of forged check; La Fayette 
 v. Merchant's Bank, 68 L.R.A. 231, which sustains right of drawee paying 
 draft on forged indorsement in ignorance of forgery on presentation bearing in- 
 dorsement of collecting bank to recover back amount so paid. 
 Relation between bank and depositor. 
 
 Cited in note (22 Am. St. Rep. 876) on relation between bank and depositor. 
 
 2 L. R. A. 99, BIRDSEYE v. BAKER, 82 Ga. 142, 14 Am. St. Rep. 142, 7 S. E. 
 863. 
 
 Cor,'! id of laws. 
 
 Cited in notes (2 L. R. A. 328) on conflict of laws as affecting validity of con- 
 tract; (6 L. R. A. 110) on conflict of laws in regard to validity of insolvent's as- 
 signment; (23 L. R. A. 34) on extraterritorial effect of voluntary assignment 
 of personal property. 
 Mi us of debt. 
 
 Cited in note (6 L. R. A. 109) on validity of assignment for benefit of creditors. 
 
 2 L. R. A. 102, WESTERN & A. R. CO. v. EXPOSITION COTTON MILLS, 81 
 Ga. 522, 7 S. E. 916. 
 
 Appeal from judgment sustaining demurrer to amended complaint in 83 Ga. 
 441, 10 S. E. 113. 
 Inability of connecting roads. 
 
 Cited in Savannah, F. & W. R. Co. v. Commercial Guano Co. 103 Ga. 597, 30 S. 
 E. 555, holding railway using spur track of another company to obtain goods 
 :from warehouse, initial carrier, though compensation for trackage paid to another; 
 Kerr v. Georgia R. Co. 105 Ga. 372, 31 S. E. 114, holding company not contem- 
 plated as connecting carrier not liable as such, though transporting goods to des- 
 tination; Atlanta Nat. Bank v. Southern R. Co. 106 Fed. 628, holding carrier re- 
 ceiving cotton at way station for delivery to its compress not connecting carrier 
 on through contract; Susong v. Florida C. & P. R. Co. 115 Ga. 364, 41 S. E. 566, 
 "holding burden is on connecting carrier receiving car without exception to show 
 shipment was not then in good order; Bell Bros. v. Western & A. R. Co. 125 
 Ga. 513, 54 S. E. 532, holding that the showing that the consignor delivered 
 cabbages to an initial connecting carrier in good order shifted burden to con- 
 
229 L. K. A. CASES AS AUTHORITIES. [2 L.R.A. 105 
 
 necting carrier to show it was not responsible; Atlanta, B. & A. R. Co. v. 
 Emanuel & Co. 6 Ga. App. 32], 64 S. E. 1098, holding one doing a switching 
 service for carrier not a connecting carrier; Ohlen v. Atlanta & W. P. R, Co. 
 2 Ga. App. 331, 58 S. E. 511, holding that the presumption at common law 
 is that goods were delivered to a carrier in good condition; Western & A. R. Co. 
 v. Haig, 136 Ga. 501, 71 S. E. 792, holding railroad not liable for refusal of 
 connecting railroad to continue practice of switching cars to side-track to be 
 unloaded for consignee; Louisville & X. R. Co. v. Burns, 9 Ga. App. 244, 70 S. 
 E. 1112, holding that proof of receipt by consignee of goods in bad order cants 
 burden on last connecting carrier of showing that it did not receive shipment 
 in good order. 
 
 Cited in note (31 L.R.A.(X.S.) 94, 98, 100) on liability of connecting carrier 
 for loss beyond own line. 
 Conflict of laws. 
 
 Cited in Illinois C. R. Co. v. Beebe, 174 111. 26, 43 L. R. A. 214, 66 Am. St. 
 Rep. 253, 50 X. E. 1019, holding contract of carriage performable in more than 
 one jurisdiction, governed by lex loci cclebrationis; Coats v. Chicago, R. I. & 
 P. R. Co. 239 111. 164, 87 X. E. 929, holding where goods are to be carried 
 partly in one state and partly in another the law of the state where the con- 
 tract of carriage is made governs. 
 
 Cited in notes (63 L.R.A. 525) on conflict of laws as to carrier's contracts; 
 (88 Am. St. Rep. 125, 128)' on conflict of laws as to limitation of carrier's 
 liability in bills of lading. 
 Carrier's lien. 
 
 Cited in note (4 L. R. A. 376) on lien of carrier. 
 Amendment of pleadings. 
 
 Cited in Pennington v. Douglas, A. & G. R. Co. 3 Ga. App. 683, 60 S. E. 
 485; Venable Bros. v. Louisville & N. R. Co. 137 Fed. 982, holding that a suit 
 for a penalty cannot be controverted into an action upon contract by amend- 
 ment. 
 Limitation of liability of carrier. 
 
 Cited in Central R. Co. v. Hall, 124 Ga. 325, 4 L.R.A.(N.S.) 901, 110 Am. 
 St. Rep. 170, 52 S. E. 679, 4 A. & E. Ann Cas. 128, holding that a common 
 carrier cannot by special contract exempt himself from liability for loss aris- 
 ing from his own negligence; Southern Exp. Co. v. Hanaw, 134 Ga. 456, 67 S. E. 
 944, holding a provision in an express company's receipt that value is not more 
 than fifty dollars unless a greater value is stated is not binding where no 
 effort was made to arrive at valuation. 
 
 Cited in note (88 Am. St. Rep. 96) on limitation of carrier's liability in bills 
 of lading. 
 
 2 L. R. A. 105, STERXBERGER v. CAPE FEAR & Y. VALLEY R. CO. 29 S. C. 
 
 510, 7 13. E. 836. 
 Interstate commerce beginning and ending in same state. 
 
 Cited in State ex rel. Railroad & W. Commission v. Chicago, St. P. M. &, O. R. 
 Co. 40 Minn. 272, 3 L. R. A. 240. 12 Am. St. Rep. 730, 41 N. W. 1047, holding 
 state commission cannot fix rates between two points in same state over route 
 extending across another state; Hanley v. Kansas City Southern R. Co. 187 U. 
 S. 621, 47 L. ed. 336, 23. Sup. Ct. Rep. 214, denying authority of state commis- 
 sioners to fix rates between points within state over railroad passing in part 
 through adjoining territory: Hunter v. Charleston & \V. C. R. Co. 81 S. C. 171. 
 62 S. E. 13; Frasier & Co. v. Charleston & W. C. R. Co. 81 S. C. 163, 62 S. E. 
 
2 L.R.A. 105] L. R. A. CASES AS AUTHORITIES. 230 
 
 14, holding a state law providing a penalty for delay does not apply to a 
 shipment of freight from a point within the state partly through another state 
 to a point within initial state in the absence of proof of delay within initial 
 s^tate. 
 
 Cited in notes (60 L. R. A. 644, 646) on corporate taxation and the commerce 
 clause; (17 L. R. A. 443) on whether shipments between points in the same 
 state lose their character of domestic commerce by passing out of the state during 
 transportation; (28 L.R.A.(N.S.) 986; 47 L. ed. U. S. 334) on interstate char- 
 acter of transportation between points in same state over route which passes 
 outside such state. 
 
 Disapproved in State ex rel. Railroad Comrs. v. Western U. Teleg. Co. 113 N. 
 C. 223, 22 L. R. A. 571, 18 S. E. 389, holding telegraph messages between points 
 in same state, although partially traversing another state, not interstate 
 commerce. 
 
 2 L. R. A. 106, LEE v. MOSELEY, 101 N. C. 311, 7 S. E. 874. 
 Residence as affecting homestead right. 
 
 Cited in Fulton v. Roberts, 113 N. C. 427, 18 S. E. 510, holding instruction 
 confounding "residence" and "domicil" harmless where jury understands home- 
 stead right is abandoned by removal; Jones v. Alsbrook, 115 N. C. 52, 20 S. E. 
 170, holding residence must be actual to entitle citizen to homestead; Chitty v. 
 Chitty, 118 N. C. 654, 32 L. R. A. 396, 24 S. E. 117 (dissenting opinion), majority 
 holding fugitive from justice not debarred from homestead right by absence from 
 state. 
 
 Cited in footnote to Bosquett v. Hall, 9 L. R. A. 351, which refuses homestead 
 exemption because of residence of children strangers in blood. 
 Scope of homestead exemption. 
 
 Cited in Vanstory v. Thornton, 112 N. C. 214, 34 Am. St. Rep. 483, 17 S. E. 566 
 {dissenting opinion), majority holding homestead right salable or assignable; 
 Hughes v. Hodges, 102 N. C. 249, 9 S. E. 437, holding homestead right may 
 be abandoned without wife joining in deed; Hollins v. Cropper, 115 La. 989. 40 
 So. 378, holding that a homestead must be used as a homestead and cannot 
 be rented out. 
 
 Cited in footnote to Wilkinson v. Merrill, 11 L. R. A. 632, which holds house- 
 holder not deprived of homestead right by death of entire family. 
 
 Cited in notes (11 L. R. A. 705) on effect of judgment liens on homestead 
 right; (6 L. R. A. 818) on homestead exemption. 
 
 2 L. R. A. 110, ANDERSON v. WELLINGTON, 40 Kan. 173, 10 Am. St. Rep. 175, 
 
 19 Pac. 719. 
 Legislative power of cities. 
 
 Cited in Trotter v. Chicago, 33 111. App. 210, holding ordinance making it mis- 
 demeanor to parade street without permit, not within powers; Sio,ux Falls v. 
 Kirby, 6 S. D. 68, 25 L. R. A. 623, 60 N. W. 156, holding ordinance prohibiting 
 building without permit of city inspector, not within powers; Re Pryor, 55 Kan. 
 727, 29 L. R. A. 400, 49 Am. St. Rep. 280, 41 Pac. 958, holding city of third 
 class without power to regulate price of gas or water by ordinance; Gray v. 
 Omaha, 80 Neb. 527, 14 L.R.A.(N.S.) 1034, 114 N. W. 600, holding power to 
 regulate the business of constructing artificial stone cannot be implied from 
 power to construct and repair walks. 
 
 Cited in notes (2 L. R. A. 142) on municipal corporations as agencies of govern- 
 ment; (20 L. R. A. 722) on delegation of municipal power as to license; (36 L. 
 H. A. 596) on extent of power of municipal corporation to define nuisance; (39 
 
231 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 110 
 
 L.R.A. 672) on municipal power over nuisances relating to use of streets; (16 
 Am. St. Rep. 584; 28 Am. St. Rep. 184) on validity of municipal ordinance; 
 (123 Am. St. Rep. 43) on test of validity of municipal ordinance as denying equal 
 protection of the laws. 
 KensonubleiieHS and uniformity of ordinances and statutes. 
 
 Cited in Bennett v. Pulaski (Tenn.) 47 L. R. A. 281, 52 S. W. 913, holding ordi- 
 nances which are oppressive, repugnant to fundamental rights, or obnoxious to 
 general laws, invalid; State v. Tenant, 110 N. C. 609, 15 L. R. A. 424, 28 Am. St. 
 Hep. 715, 14 S. E. 387, holding ordinance prohibiting building without permission 
 of aldermen void, because arbitrary; Richmond v. Dudley, 129 Ind. 116, 13 L. R. 
 A. 589, 28 Am. St. Rep. 180, 28 N. E. 312, holding void an ordinance restricting 
 keeping and storing of oils as not uniform; Simrall v. Covington, 90 Ky. 450, 9 L. 
 R. A. 557, 29 Am. St. Rep. 398, 14 S. W. 369, holding statute imposing on agents 
 of foreign insurance companies tax not required of local companies invalid; Mar- 
 shall & B. Co. v. Nashville, 109 Tenn. 511, 71 S. W. 815, holding municipal ordi- 
 nance requiring union label on city printing invalid; State v. Gerhardt, 145 Ind. 
 484, 33 L. R. A. 329, 44 N. E. 469 (dissenting opinion), majority holding condi- 
 tions upon which license to sell liquors may issue sufficiently specified in statute; 
 Fulton v. Norteman, 60 W. Va. 573, 9 L.R.A.(N.S.) 1203, 55 S. E. 658, holding 
 void as discriminatory an ordinance prohibiting bringing into town carcasses for 
 burial, cremation, or manufacture into fertilizer; Re Van Tuyl, 71 Kan. 661, 81 
 Pac. 18], holding where act of legislature states that ordinance shall provide a 
 punishment of a certain offense of not less that $100 or more than $500 and 
 imprisonment for not less than thirty days or more than six months that an 
 ordinance providing punishment same except that six months was changed to 
 ninety days was void. 
 
 Cited in notes (2 L.R.A. 723) on reasonableness of ordinance subject of judicial 
 inquiry; (16 Eng. Rul. Cas. 679) on necessity of municipal by-law or ordinance 
 being reasonable. 
 
 Distinguished in State v. White. 44 Kan. 517, 25 Pac. 33, holding statute pun- 
 ishing mere fornication as rape not invalid. 
 Restricting use of streets. 
 
 Cited in Trotter v. Chicago, 33 111. App. 210, holding ordinance making it mis- 
 demeanor to parade street without permit of police department unreasonable; 
 State ex rel. Garrabad v. Dering, 84 Wis. 590, 19 L. R. A. 861, 36 Am. St. Rep. 
 948, 54 N. W. 1104, holding ordinance prohibiting parades, without permit, ex- 
 cept by persons specified, unreasonable; Re Gribben, 5 Okla. 389, 47 Pac. 1074, 
 holding ordinance prohibiting noise in streets by means of drums unreasonable; 
 Kansas City v. McDonald, 60 Kan. 484, 45 L. R. A. 431, 57 Pac. 123, holding 
 ordinance making fast driving misdemeanor unreasonable when applied to fire 
 department; Emporia v. Shaw, 6 Kan. App. 812, 51 Pac. 237, holding ordinance 
 prohibiting solicitation of patronage at railway depots, except by persons speci- 
 fied, not lacking in uniformity; Re Flaherty, 105 Cal. 570, 27 L. R. A. 533, 38 
 Pac. 981 (dissenting opinion), majority holding ordinance prohibiting beating of 
 drum on street, without permit of officer named, not unreasonable; Peace v. 
 McAdoo, 110 App. Div. 16, 96 N. Y. Supp. 1039, holding that police commission 
 have no power to totally prohibit the use of vehicles on parts of certain streets. 
 
 Cited in notes (19 L.R.A. 858, 860) on validity of ordinances as to street 
 parades; (104 Am. St. Rep. 642) on municipal regulations of street railways for 
 protection of public. 
 
 Distinguished in Wilkes-Barre v. Garabed, 11 Pa. Super. Ct. 370, hoMim; 
 ordinance prohibiting beating of drum in street without permit of mayor valid. 
 
2 L.R.A. 110] L. R. A. CASES AS AUTHORITIES. 232 
 
 Disapproved, in effect, in Wilson v. Eureka City, 173 U. S. 35, 43 L. ed. 605, 
 19 Sup. Ct. Rep. 317, holding ordinance requiring permit of mayor to move 
 building through street not unreasonable. 
 
 2 L. R. A. 113, LAMPERT v. HAYDEL, 96 Mo. 439, 9 Am. St. Rep. 358, 9 S. W. 
 
 780. 
 Trusts, when active. 
 
 Cited in Schoeneich v. Field, 73 Mo. App. 455, holding, where estate is limited 
 to trustee to pay rents and profi 4 " to another for life trustee takes legal estate. 
 Restraint upon alienation by cestui qne trust. 
 
 Cited in Seymour v. McAvoy, 121 Cal. 442, 41 L. R. A. 547, 53 Pac. 946; Roberts 
 v. Stevens, 84 Me. 333, 17 L. R. A. 270, 24 Atl. 873; Brown v. Macgill, 87 Md. 
 166, 39 L. R. A. 808, 67 Am. St. Rep. 334, 39 Atl. 613; Leigh v. Harrison, 6 
 Miss. 932, 935, 18 L. R. A. 51, 52, 11 So. 604; Partridge v, Cavender, 96 Mo. 456,. 
 9 S. W. 785 ; Bank of Commerce v. Chambers, 96 Mo. 466, 10 S. W. 38 ; Weller v. 
 Noffsinger, 57 Neb. 462, 77 N. W. 1075; Schoeneich v. Field, 73 Mo. App. 458, 
 holding limitation upon alienation to protect income from creditors and pur- 
 chasers, valid; Mason v. Rhode Island Hospital Trust Co. 78 Conn. 85, 61 AtL 
 57, 3 A. & E. Ann. Cas. 586. holding limitation valid; Dunephant v. Dickson, 153" 
 Mo. App. 310, 133 S. W. 165; Ressner v. Phillips, 189 Mo. 523, 107 Am. St. Rep. 
 368, 88 S. W. 66, 3 A. & E. Ann. Cas. 1005, holding spendthrift trust valid; 
 Mattison v. Mattison, 53 Or. 258, 133 Am. St. Rep. 829, 100 Pac. 4, holding re- 
 strictions on alienation valid; Roden v. Helm, 192 Mo. 86, 90 S. W. 798, on 
 validity of spendthrift trust; Heaton v. Dickson, 153 Mo. App. 325, 133 S. W. 159 r 
 holding that presumption of law is against spendthrift trust and it must be 
 created by express words or clearly manifested intention. 
 
 Cited in footnotes to Roberts v. Stevens, 17 L. R. A. 266, which authorizes- 
 establishment of spendthrift trust free from rights of creditors ; Wales v. Bow- 
 dish, 4 L. R. A. 819, which holds devise in trust for life with power of appoint- 
 ment not subject to devisee's debts; Leigh v. Harrison, 18 L. R. A. 49, which 
 denies creditor's right to reach debtor's interest under spendthrift trust ; Murphy 
 v. Delano, 55 L. R. A. 727, which holds income of spendthrift trust not within 
 reach of creditors by void agreement of trustee to pay certain portion of income 
 absolutely to beneficiary; Hutchinson v. Maxwell, 57 L. R. A. 384, which denies 
 power to create equitable life estate free from debts of beneficiary. 
 
 Cited in notes (11 L.R.A. 565) on policy of law as to spendthrift trusts; (9 
 Am. St. Rep. 407) on validity of spendthrift trust; (24 Am. St. Rep. 696) on 
 spendthrift trusts; (25 Eng. Rul. Cas. 625) on validity of condition in will 
 against alienation of income of trust estate by beneficiary. 
 
 Distinguished in Henson v. Wright, 88 Tenn. 508, ,12 S. W. 1035, holding 
 joint deed of trustee and beneficiary valid as to life estate. 
 Purchase for benefit of another. 
 
 Cited in Clark v. Cox, 118 Mo. 659, 24 S. W. 221, holding purchase of property 
 with intent to hold for enjoyment and benefit of former owner valid. 
 Conveyance for benefit of grantor. 
 
 Cited in Brown v. Macgill, 87 Md. 168, 39 L. R. A. 809, 67 Am. St. Rep. 334 r 
 39 Atl. 613, holding conveyance to trustee, whereby grantor retains enjoyment of 
 income, exempt from claims of creditors, invalid. 
 
 Cited in footnote to Brown v. McGill, 39 L. R. A. 80G. which denies power to 
 create trust placing one's property beyond reach of creditors while retaining full 
 enjoyment of revenues. 
 
233 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 120 
 
 Intent of testator controlling. 
 
 Cited in Jarboe v. Hey, 122 Mo. 348, 26 S. W. 968, and Schoeneich v. Field, 73 
 Mo. App. 458, holding due regard must be given direction of will and intent of 
 testator in determining right of alienation. 
 
 Cited in note ( 10 L. R. A. 757) on creation of life estate by will. 
 
 2 L. R. A. 118, GUNTHER v. NEW ORLEANS COTTON EXCH. MUT. AID 
 
 ASSO. 40 La. Ann. 776. 8 Am. St. Rep. 554, 5 So. 65. 
 Forfeiture in benefit association. 
 
 Cited in Modern Woodmen v. Jameson, 48 Kan. 721, 30 Pac. 460, holding for- 
 feiture waived by benefit association, notice of reinstatement not having been 
 given; Elgutter v. Mutual Reserve Fund Life Asso. 52 La. Ann. 1739, 28 So. 289, 
 holding no forfeiture when notice was not given according to custom of company; 
 Maginnis v. New Orleans Cotton Exch. Mut. Aid Asso. 43 La. Ann. 1138, 10 So. 
 180, holding death of member during suspension, after notice, created forfeiture; 
 Lawrence v. Penn. Mut, L. Ins. Co. 113 La. 92, 36 So. 898, 1 A. & E. Ann. Cas. 
 965, holding forfeiture not effected by acceptance of note in lieu of cash payment 
 for premium; Kavanaugh v. Security Trust & L. Ins. Co. 117 Tenn. 42, 7 L.R.A. 
 (N.S.) 259, 96 S. W. 499, 10 A. & E. Ann. Cas. 680, holding forfeiture for non- 
 payment of premium will not be enforced where company fails to give notice of 
 maturity and amount of premium in accordance with its practice and custom 
 so reasonably long continued as to induce belief of noninsistence without notice; 
 Trotter v. Grand Lodge, I. L. H. 132 Iowa, 520, 7 L.R.A. (N.S.) 572, 109 N. W. 
 1099. 11 A. & E. Ann. Cas. 533, holding forfeiture will not be enforced for 
 delinquent payment of premium where premiums are habitually collected and 
 received after they have become delinquent and such conduct members have 
 reason to conclude strict compliance will not be insisted upon, and member 
 tendered payment. 
 
 Annotation cited in Farmers' & M. Life Asso. v. Caine, 123 111. App. 422. hold- 
 ing forfeiture waived for nonpayment of premium where company has extended 
 time therefor. 
 
 Cited in footnote to McQuillan v. Mutual Reserve Fund Life Asso. 56 L. R. A. 
 233, which holds forfeiture of policy waived by retaining payment made after 
 default without notice of any condition affixed. 
 
 Cited in notes (9 L.R.A. 189) on forfeitures not favored in the law; (19 Am. 
 St. Rep. 783) on forfeiture of insurance provided by mutual benefit association. 
 Estoppel to claim forfeiture. 
 
 Cited in Standard Brewing Co. v. Anderson, 121 La. 940, 46 So. 926, holding 
 right to claim default for nonpayment of rent on due day waived by long accept- 
 ance of rent on subsequent days. 
 
 Cited in notes (52 Am. St. Rep. 549, 576) on estoppel to claim forfeiture 
 of mutual or membership life or accident insurance; (20 L.R.A. (N.S.) 1038) 
 on estoppel by failure to follow custom of giving insured notice of maturity of 
 premium. 
 
 2 L. R. A. 120, LANGDON v. CENTRAL R. & BKG. CO. 37 Fed. 449. 
 Consolidation of competing' railroads. 
 
 Cited in Hamilton v. Savannah, F. & W. R. Co. 49 Fed. 422, holding transfer 
 of one railroad to another void; Louisville & N. R. Co. v. Com. 97 Ky. 695, 31 S. 
 W. 476, and Louisville & N. R. Co. v. Kentucky, 161 U. S. 703. 40 L. ed. 860, Itf 
 Sup. Ct. Rep. 714, enjoining the consolidation of competing railways; Clarke v. 
 
 , 
 
2 L.R.A. 120] L. R. A. CASES AS AUTHORITIES. 234 
 
 Central R. & Bkg. Co. 50 Fed. 339, 15 L. R. A. 684, restraining the voting power 
 of stock of one railroad held by another railroad. 
 
 Cited in notes (45 L. R. A. 273) on restrictions on consolidation of parallel or 
 competing railroads; (64 L. R. A. 694) on illegal trusts under modern anti-trust 
 laws; (7 L. R. A. 606) on corporation's lack of power to deal in stock of other 
 corporations; (8 L. R. A. 237) on foreign corporation; law of comity. 
 
 2 L. R. A. 129, BYAM v. COLLINS, 111 N. Y. 143, 7 Am. St. Rep. 727, 19 X. E. 
 
 75. 
 Privileged communications. 
 
 Cited in Mattice v. Wilcox, 147 N. Y. 636, 42 N. E. 270; Sickles v. Kling, 60 
 App. Div. 516, 69 N. Y. Supp. 944; Stern v. Barrett Chemical Co. 29 Misc. 613, 61 
 N. Y. Supp. 221, holding privilege question of law; Norfolk & W. S. B. Co. v. 
 Davis, 12 App. D. C. 328, holding privilege question for court where all disputed 
 facts determined by jury; Webber v. Vincent, 29 N. Y. S. R. 606, 9 N. Y. Supp. 
 103, holding communication to interested person loses privileged character if 
 made in presence of others; Moore v. Manufacturers' Nat. Bank, 123 N. Y. 432, 
 11 L. R. A. 757, 25 N. E. 1048 (dissenting opinion), majority holding irrelevant 
 charges against teller in action on bond of defaulting cashier not privileged as 
 charge in pi'osecution of action; Knapp v. Campbell, 14 Tex. Civ. App. 205, 36 S. 
 W. 765, holding newspaper charge that candidate for public office had been in- 
 dicted for keeping gambling house not privileged; Reynolds v. Plumbers' Ma- 
 terial Protective Asso. 30 Misc. 713, 63 N. Y. Supp. 303, holding communication 
 of refusal to pay debts, to other members of association, qualifiedly privileged 
 where by-law provides therefor; Rowland v. Flood, 160 Mass. 516, 36 X. E. 4S2. 
 holding report of public investigating committee charging plaintiff with dis- 
 honesty and insolvency qualifiedly privileged; Henry v. Moberly, 6 Incl. App. 494, 
 33 N. E. 981, holding school trustee's written protest in board meeting against 
 employment of plaintiff as teacher qualifiedly privileged: Hemmens v. Xelson, 
 138 N. Y. 523, 20 L. R. A. 443, footnote p. 440, 34 X. E. 342, Affirming 36 X. Y. 
 S. R. 906, 13 N. Y. Supp. 176, holding communication of defamatory matter 
 to board of trustees, written by teacher about wife of principal of school, priv- 
 ileged; Finley v. Steele, 159 Mo. 305, 52 L. R. A. 853, 60 S. W. 108, holding 
 charges in communication from school board to commissioner on removal of 
 teacher qualifiedly privileged; McCarty v. Lambley, 20 App. Div. 267. 40 X. Y. 
 Supp. 792, holding accusation of theft privileged when made by manager at time 
 of plaintiff's discharge, in presence of others, after information of confession ; 
 McClean v. New York Press Co. 46 N. Y. S. R. 108, 19- N. Y. Supp. 262, holding 
 publication, in interest of social order, of plaintiff's house, by typographical er- 
 ror, as disorderly, not privileged; Ross v. Ward, 14 S. D. 245, 8(5 Am. St. Rep. 
 746, 85 N. W. 182, holding charge to jury omitting question of privilege in action 
 for libelous accusation of larceny erroneous; Abraham v. Baldwin, 52 Fla. 157, 
 10 L.R.A.(N.S.) 1055, 42 So. 591, 10 A. & E. Ann. Cas. 1148, holding existence or 
 non-existence of privilege for jury when all essential facts and circumstances are 
 disputed; Holmes v. Royal Fraternal Union, 222 Mo. 574, 26 L.R.A.(N.S-) 1091, 
 321 S. W. 100, holding communication from fraternal insurance company to its 
 members in community that local agent had been- discharged, had collected pre- 
 miums, but failed to remit, and advising members their rights not prejudiced, 
 qualifiedly privileged; Overton v. White, 117 Mo. App. 604, 93 S. W. 363; Ker- 
 sting v. White, 107 Mo. App. 277, 80 S. W. 730, holding communication of state- 
 ment of one member of society for promotion of moral conduct to another member 
 as to immorality of third member with one outside society, privileged as against 
 such outsider, when made in belief of truth; Walker v. Best, 107 App. Div. 309, 
 
235 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 129 
 
 05 X. Y. Supp. 351, holding communication from principal of city school to super- 
 intendent of schools and comment thereon by latter to superintendent of other 
 schools, as to work of teacher in first, privilege; Rose v. Imperial Engine Co. 
 110 App. Div. 439, 96 X. Y. Supp. 808, holding letter by employer to mother of 
 former employee, charging employee with crimes which slightest investigation 
 would have shown to be false, not privileged; Lapetina v. Santangelo, 124 App. 
 Div. 521, 108 X. Y. Supp. 975, holding letter from client to attorney charging 
 another attorney with dishonesty in professional matter, one of qualified priv- 
 ilege; Morton v. Knife, 128 App. Div. 96, 112 N. Y. Supp. 451, holding statement 
 by superior police officer to landlord of house within his precinct that premises 
 are used as disorderly house, privileged communication, and question of privilege 
 for court; Logan v. Hodges, 146 N. C. 42, 59 S. E. 349, 14 A. & E. Ann. Cas. 103, 
 holding statement concerning public official not privileged when not addressed to 
 some person having jurisdiction to entertain complaint as to such official, or 
 power to redress grievance or duty to perform or interest in connection with 
 it; Vanloon v. Vanloon, 159 Mo. App. 271, 140 S. W. 631, holding that qualified 
 privileged communication is communication made bona fide by party having 
 interest to one having corresponding interest; Bingham v. Gaynor, 203 X. Y. 
 31, 96 X. E. 84. holding that citizen may, in good faith, make, without liability, 
 untrue statement, about public official, to his superior. 
 
 Cited in footnotes to Buisson v. Huard, 56 L. R. A. 296, which holds privileged, 
 answers to inquiries by interested persons as to defamatory remarks by others; 
 Fresh v. Cutter, 10 L. R. A. 67. which holds voluntary communication in good 
 faith to neighbor about to employ servant that he had stolen privileged; Xissen v. 
 Cramer, 6 L. R. A. 780, which holds relevant words spoken by party to action 
 during trial privileged. 
 
 Cited in notes (2 L. R. A. 405) on privileged communications; (4 L. R. A. 
 280) on communications in discharge of duty, privileged; (13 L. R. A. 98) on 
 privilege of fair criticism of public men; (13 L. R. A. 420) on incidents of 
 libel; (9 L.R.A. 621) on definition of libel; (3 L.R.A.(N.S.) 697) on privileged 
 occasion; burden of showing good faith and probable cause; (104 Am. St. Rep. 
 117, 140) on what libelous statements are privileged; (9 Eng. Rul. Cas. 82) 
 as to what communications enjoy a qualified privilege. 
 Malice. 
 
 Cited in Mattson v. Albert, 97 Tenn. 235, 36 S. W. 1090, holding malice implied 
 in publication of false statements concerning theater manager libelous per se; 
 St. James Military Academy v. Gaiser, 125 Mo. 527, 28 L. R. A. 676, 46 Am. St. 
 Rep. 502, 28 S. W. 851, holding malice implied in publication of charge of im- 
 moral and unreligious administration of institution of learning; Hartman v. 
 Morning Journal Asso. 46 X. Y. S. R. 182, 19 N. Y. Supp. 399, holding malice 
 implied from unprivileged publication of charge of immoral complicity in in- 
 surance swindle; McDonald v. Xugent, 122 Iowa, 655, 98 X. W. 506, holding 
 malice in charging another with having venereal disease is presumed J Lally v. 
 Emery, 59 Hun, 239, 12 X. Y. Supp. 785, holding actual malice question for 
 jury, where communication prima facie privileged; Davey v. Davey, 22 Misc. 669, 
 50 N. Y. Supp. 161, holding substantial damages properly awarded on implied 
 malice, where article libelous per se. 
 
 Cited in footnotes to Pollasky v. Minchener, 9 L. R. A. 102, which authorizes 
 inference of malice from sending false statement as to mortgage, advising caution, 
 to patrons of commercial agency; Street v. Johnson, 14 L. R. A. 203, which holds 
 deliverer presumed to know that paper contains libel. 
 
 Cited in notes (6 L. R. A. 364) on malice as element in libel; (3 L. R. A. 69) 
 on copies from other papers to disprove malice; (13 Am. St. Rep. 452), on burden 
 
2 L.R.A. 129] L. R. A. CASES AS AUTHORITIES. 236 
 
 of proof of malice in libel or slander; (15 Am. St. Rep. 337) on malice in news- 
 paper libel. 
 
 Distinguished in Warner v. Press Pub. Co. 15 Daly, 546, 8 X. Y. Supp. 341, 
 holding evidence to show reporter's belief in truth of published love letter inad- 
 missible to rebut presumption of malice. 
 
 2 L. R. A. 137, SKINNER v. HARRISON TWP. 116 Ind. 139, 18 N. E. 529. 
 Charitable uses and trusts. 
 
 Cited in Clearspring Twp. v. Blough, 173 Ind. 25, 88 N. E. 511, on whether 
 charitable use or trust enforceable in equity is created by will. 
 
 Cited in footnotes to Re John, 36 L. R. A. 242, which sustains bequest for main- 
 tenance of free public schools; People ex rel. Ellert v. Cogswell, 35 L. R. A. 269, 
 which sustains trust for educating boys and girls not confined to poor ones; 
 Crerar v. Williams, 21 L. R. A. 454, which holds gift of free public library in 
 great city charitable; Kelly v. Nichols, 19 L. R. A. 413, as to what constitutes 
 charitable use or trust. 
 
 Cited in notes (5 L.R.A. 107) on gifts to promote public good as charities; 
 (14 L.R.A. (N.S.) 97, 109, 112, 113, 139) on enforcement of general bequest for 
 charity or religion; (63 Am. St. Rep. 259) on what are charitable uses or trusts. 
 Trustees. 
 
 Cited in Rush County v. Dinwiddie, 139 Ind. 134, 37 N. E. 795, holding board 
 of commissioners capable to act as trustees under will establishing charitable 
 home; Re John, 30 Or. 520, 36 L. R. A. 251, 47 Pac. 341, holding trust dependent 
 upon appointment of trustees by court at stated periods not void for uncertainty: 
 Hagen v. Sacrison, 19 N. D. 179, 26 L.R.A.(N.S.) 735, 123 N. W. 518, holding a 
 bequest for the amelioration of the condition of the poor children of a certain 
 locality would not be defeated by reason of the impossibility of carrying out a 
 recommendation as to the persons who were to act as trustee for the purpose of 
 carrying out the bequest; Chapman v. Newell, 146 Iowa, 425, 125 X. W. 324, 
 holding bequest to county permanent school fund not void for uncertainty. 
 Removal of latent ambiguity in ii i ft. 
 
 Cited in Indianapolis & V. R. Co. v. Reynolds, 116 Ind. 359, 19 X. E. 141, hold- 
 ing parol evidence admissible to limit 100 feet right of way to 40 feet wher* 
 width in original deed not defined, and only 40 feet fenced; Chappell v. Mission- 
 ary Soc. 3 Ind. App. 359, 50 Am. St. Rep. 276, 29 X. E. 924, holding evidence ad- 
 missible to show Church of Christ intended by bequest to "Christian Missionary 
 Society;" Daugherty v. Rogers, 119 Ind. 259, 3 L. R. A. 851, 20 X. E. 779. holding 
 r.otes to amount of $6,000 extinguished by provision, in connection with small 
 bequest, "in addition to what I have already given him;" Pate v. Bushong, 1(51 
 Ind. 540, 63 L. R. A. 597, 69 N. E. 291, holding error in description of land wil) 
 not avoid bequest, where testator's intention appears with reasonable certainty, 
 and extrinsic evidence admissible to remove ambiguity. 
 
 Distinguished in Taylor v. Horst, 23 Wash. 452, 63 Pac. 231, holding parol tes- 
 timony inadmissible to add omitted land to devise of land adjoining in absence of 
 ambiguity. 
 Judicial notice. 
 
 Cited in footnotes to Com. v. King, 5 L. R. A. 536, which authorizes taking ju- 
 dicial notice that river not a public highway; Richardson v. Buhl, 6 L. R. A. 458, 
 taking notice sua sponte of contravention of public policy by contract in suit. 
 
 Cited in notes (4 L. R. A. 44) on rules applicable to judicial notice in par- 
 ticular states; (7 L. R. A. 765) on capacity of municipal coruoration to adminis- 
 ter public charity. 
 
237 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 142 
 
 2 L. R. A. 139, CRAWFORD v. HAZELRIGG, 117 Ind. 63, 18 N. E. 603. 
 Married woman's right of redemption. 
 
 Cited in Union Nat. Bank v. McConaha, 14 Ind. App. 84, 42 N. E. 495, holding 
 married woman redeeming from foreclosure of husband's mortgage can enforce 
 against other owners their equitable share; Staser v. Gaar, S. & Co. 168 Ind. 135, 
 79 N. E. 404, holding married woman entitled to dower interest sue, against gen- 
 eral creditors on foreclosure. 
 Married woman's contract. 
 
 Cited in Heiney v. Lontz, 147 Ind. 421, 46 N. E. 665, holding note by married 
 woman to secure money advanced to husband void. 
 Effect on mortgage of extension of time of payment of debt. 
 
 Cited in Wilson v. Pickering, 28 Mont. 440, 72 Pac. 821, holding renewal of note 
 secured presumptively renews mortgage lien. 
 Mortgage foreclosure. 
 
 Cited in Union Trust Co. v. Scott, 170 Ind. 674, 85 N. E. 481, on right of re- 
 ceiver of insolvent mortgagee to foreclosure. 
 
 Cited in notes (16 L. R. A. 468) on effect on mortgage of alteration of note 
 secured by it; (21 L. R. A. 556) on effect of statutory bar of principal debt on 
 the right to foreclose a mortgage or deed of trust securing the same; (10 L. R. 
 A. 509) on limitation of action for foreclosure of mortgage. 
 Protection of wife's rights. 
 
 Cited in Green v. Estabrook, 168 Ind. 127, 120 Am. St. Rep. 349, 79 N. E. 373; 
 Smith v. Sparks, 162 Ind. 276, 70 N. E. 253, holding wife entitled to have hus- 
 band's interest sold first on foreclosure. 
 
 2 L. R. A. 142, COM. v. PLAISTED, 148 Mass. 375, 12 Am. St. Rep. 566, 19 N. E. 
 
 224. 
 Legislative control over municipalities. 
 
 Cited in Kingman, Petitioner, 153 Mass. 573, 12 L. R. A. 421, 27 N. E. 778, hold- 
 ing apportionment of cost of sewerage system among benefited towns properly 
 intrusted by legislature to commissioners appointed by court; State ex rel. 
 Bulkeley v. Williams, 68 Conn. 149, 48 L. R. A. 491, 35 Atl. 24, holding city 
 bound to pay assessment of expense of maintaining bridge outside municipal lim- 
 its, levied by commissioners appointed by state; Martin v. Tyler, 4 N. D. 302, 25 
 L. R. A. 847, 60 N. W. 392, holding apportionment of benefits of drain by state 
 commissioners final; State ex rel. Caldwell v. Wilson, 121 N. C. 470, 28 S. E. 554, 
 holding statutory requirement of qualifications for railroad commissioner in ad- 
 dition to those provided by Constitution valid; State ex rel. Hawes v. Mason, 
 153 Mo. 46, 54 S. W. 524, holding statute creating and providing for state control 
 of municipal police force supported by city constitutional; Americus v. Perry, 114 
 Ga. 878, 57 L. R. A. 234, 40 S. E. 1004, holding statute providing for municipal 
 police board under control of governor constitutional, in spite of prior conflicting 
 charter provisions; Gooch v. Exeter, 70 N. H. 416, 85 Am. St. Rep. 637, 48 Atl. 
 1100, and Newport v. Horton, 22 R. I. 208, "50 L. R. A. 338, 47 Atl. 312, holding 
 statute creating municipal police board appointed by governor constitutional; 
 Mt. Hope Cemetery v. Boston, 158 Mass. 520, 35 Am. St. Rep. 515, 33 N. E. 695, 
 holding unconstitutional statute providing for transfer of municipal cemetery 
 property without compensation or relief from obligation to bury dead; State ca> 
 rel. Jameson v. Denny, 118 Ind. 418, 4 L. R. A. 92, 21 N. E. 252 (dissenting 
 opinion), majority holding statute creating board of public works, appointed by 
 governor to control city streets, etc., unconstitutional; Horton v. Newport, 27 
 R. I. 289, 1 L.R.A.(N.S.) 517, 61 Atl. 759, 8 A. & E. Ann. Cas. 1097, upholding 
 
2 L.R.A. 142] L. R. A. CASES AS AUTHORITIES. 238 
 
 statute providing for payment of expenses of local police department out of 
 local funds of municipality; Graham v. Roberts, 200 Mass. 157, 85 X. E. 1009, 
 holding statute fixing qualification of city officers constitutional; Ware v. Fitch- 
 burg, 200 Mass. 68, 85 X. E. 951, holding statute controlling officers of cities in 
 administration of public charities constitutional; Capron v. Taunton, 196 Mass. 
 44, 81 X 1 . E. 873, upholding right of manager of municipal water works, provided 
 for by statute, to hire and discharge employees against wish of mayor; Sims v. 
 Boston, 193 Mass. 549, 79 X. E. 824, holding statute giving officers and boards of 
 city right to remove subordinates does not apply to police commissioners who 
 were appointed by governor; Arnett v. State, 168 Ind. 183, 8 L.R.A.(X.S-) 1194, 
 80 X. E. 153, holding law requiring governor to appoint metropolitan police boards 
 in certain cities and within limits to fix salaries, constitutional; Sprague v. 
 Minon, 195 Mass. 583, 81 N. E. 284, holding metropolitan water board having 
 power to construct systems of water works and protect purity of waters, could 
 permit person to go upon pond in such system under proper regulations; Dickie 
 v. Gordon, 39 N. S. 330, on right of municipal council to enact by-laws outside 
 its powers; Ex parte Lewis, 45 Tex. Crim. Rep. 13, 108 Am. St. Rep. 929, 73 S. 
 W. 811 (dissenting opinion), on constitutionality of law doing away with city 
 council and creation of board of commissioners; State ex rel. Jones v. Sargent, 
 145 Iowa, 309, 27 L.R.A.(X.S-) 727, 139 Am. St. Rep. 439, 124 X. W. 339, up- 
 holding statute requiring members of municipal commission to be appointed from 
 two dominant political parties. 
 
 Cited in footnotes to State ex rel. McCausland v. Freeman, 47 L. R. A. 67, 
 which sustains statute arbitrarily establishing high school, and requiring its 
 maintenance by people of county; Davock v. Moore, 28 L. R. A. 783, which sus- 
 tains legislative power to provide for city board of health with power to incur 
 expenses without city's consent; Rathbone v. YVirth, 34 L. R. A. 408, which holds 
 void statute for bipartisan police board of four members to be selected by all 
 members of common council voting for two members only. 
 
 Cited in note (48 L. R. A. 481) on power of legislature in respect to municipal 
 officers, etc. 
 
 Distinguished in State ex rel. Atty. Gen. v. Moores, 55 Xeb. 518, 41 L. R. A. 
 C36, 76 X. W. 175, holding statute providing for appointment of municipal 
 Loard of fire and police commissioners by governor unconstitutional; Ex parte 
 Corliss, 16 X. D. 478, 114 X. W. 962, holding law giving assistant state's at- 
 torney of county right to visit grand jury room during session of grand jury, 
 as deputy enforcement commissioner, unconstitutional. 
 
 Criticized in State ex rel. Jones v. Sargent, 145 Iowa, 309, 27 L.R.A.(X.S-) 
 727, 124 X. W. 339 (dissenting opinion), stating that expression as to powor of 
 legislature to fix the qualifications of members of police boards was mere dictum. 
 Delegation of legislative authority. 
 
 Cited in Com. v. Page, 155 Mass. 230, 29 X. E. 512, holding license regulation 
 of hackney carriages by board of police valid; Brodbin v. Revere, 182 Mass. 601, 
 66 X. E. 607, upholding statute empowering park commissioners to make regula- 
 tions for use of parkways, breaches of which shall be punishable as breaches of 
 peace; Welch v. Swasey, 193 Mass. 375, 23 L.R.A.(X.S.) 1162, 118 Am. St. Rep. 
 523, 79 X. E. 745, holding statute delegating to commissioners the division of 
 city into districts in which different heights of buildings are provided for consti- 
 tutional; Southern R. Co. v. Meltor, 133 Ga. 326, 65 S. E. 665 (dissenting opin- 
 ion), on constitutionality of rule of railroad commissioners under delegation of 
 power from legislature, compelling furnishing of cars under penalty. 
 
 Cited in note (20 L. R. A. 722) on delegation of municipal power as to licenses. 
 
239 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 142 
 
 Abridgment of right of local self-government. 
 
 Cited in Goodrich v. Mitchell, 68 Kan. "Go, 64 L.R.A. 948, 75 Pac. 1034, up- 
 holding statute giving veterans perference for appointment to public office over 
 other persons of equal qualifications; Goodrich v. Mitchell, 68 Kan. 771, 64 L.R.A. 
 945, 104 Am. St. Rep. 429, 75 Pac. 1034, 1 A. & E. Ann. Gas. 288, upholding stat- 
 ute giving preference veterans of army or navy of Civil War in public works or 
 office in every public department of government; Lowell v. Archambault, 189 Mass. 
 73, 1 L.R.A. (X.S.) 460, 75 X. E. 65, holding local board of health cannot license 
 erection and use of livery stable except such as is authorized by public statute. 
 
 Cited in note (1 L.R.A.(X.S.) 513) on right of local self-government; legislative 
 regulation of municipal officers. 
 Reasonableness of regulation. 
 
 Cited in Com. v. Mulhall, 162 Mass. 499, 44 Am. St. Rep. 387, 39 N. E. 183, 
 holding ordinance restricting weight of loads carried over streets of Boston rea- 
 sonable and valid; Com. v. Cutter, 156 Mass. 56, 29 N. E. 1146, holding ordinance 
 compelling removal of all filth from private passageway by abutting owner, irre- 
 spective of manner of accumulation, reasonable; Com. v. Ellis, 158 Mass. 556, 33 
 N. E. 651, holding ordinance forbidding unlicensed sales in streets refers only to 
 sales at standstill or with frequent stops and is reasonable and valid; Wilkes- 
 Barre v. Garabed, 11 Pa. Super. Ct. 374, holding ordinance prohibiting beating of 
 drum in streets to collect crowd for religious purposes valid; Chariton v. Sim- 
 mons, 87 Iowa, 233, 54 N. W. 146, holding ordinance punishing disobedience to 
 order of city marshal in regard to processions or bands of music reasonable; 
 Peace v. McAdoo, 110 App. Div. 14, 96 X. Y. Supp. 1039, holding prohibition by 
 police commissioner of use of vehicles on parts of certain streets under power to 
 regulate traffic, void; Com. v. Packard, 185 Mass. 67, 69 N. E. 1067, holding 
 statute authorizing licensing storage of naphtha or any other product of crude 
 petroleum valid; Fitts v. Atlanta, 121 Ga. 575, 67 L.R.A. 807, 104 Am. St. Rep. 
 167, 49 S. E. 793, holding ordinance prohibiting holding of public meetings on 
 street without license valid; Lemieux v. Young, 211 U. S. 493, 53 L. ed. 299, 
 29 Sup. Ct. Rep. 174; Young v. Lemieux, 79 Conn. 442, 20 L.R.A.(X.S.) 165, 
 129 Am. St. Rep. 193, 65 Atl. 436, 8 A. & E. Ann. Cas. 452, holding statute pro 
 hibiting sale of entire stock of goods by retail dealer without prescribed notice 
 to creditors, reasonable; Com. v. Maletsky, 203 Mass. 245, 24 L.R.A. (X.S.) 11 71, 
 89 X. E. 245, holding provision in ordinance forbidding use of any building for 
 picking, sorting or storage of rags without permit from chief of fire depart- 
 ment, void. 
 
 Cited in notes (19 L. R. A. 863) on validity of ordinances as to street parades; 
 (39 L. R. A. 673) on municipal power over nuisances in streets; (21 L. R. A. 792) 
 on constitutionality of class legislation; (16 Eng. Rul. Cas. 678, 680) on neces- 
 sity of municipal by-law or ordinance being reasonable. 
 Impeachment of title of board of police to office. 
 
 Cited in Prince v. Boston, 148 Mass. 287, 19 N. E. 218. holding quo warranto 
 only proper proceeding to impeach title to office of board of police. 
 Necessity for evil intention to sustain conviction for violation of police 
 regulation. 
 
 Cited in Com. v. Lavery, 188 Mass. 16, 73 X. E. 884, holding it unnecessary. 
 Religions doctrine or practice as justification for act declared a crime by 
 statute. 
 
 Cited in State v. Chenoweth, 163 Ind. 99, 71 X. E. 197, on sufficiency of prac- 
 tice of religious doctrine or belief as defense. 
 
2 L.R.A. 142] L. R. A. CASES AS AUTHORITIES. 240 
 
 2 L. R. A. 146, FIXK v. OISCHEID, 40 Kan. 271, 19 Pac. 623. 
 Effect of trust on land. 
 
 Cited in Baird v. Williams, 4 Okla. 180, 44 Pac. 217, holding judgment against 
 party holding land in trust in his own name not encumbrance; Ravi v. Ravi, 58 
 Kan. 589, 50 Pac. 501, holding trustee required to transfer title to beneficiary; 
 Piper v. Piper, 78 Kan. 85, 95 Pac. 1051, holding where under agreement and 
 without fraudulent purpose property is purchased and vested in one for use 
 and benefit of purchaser, valid, enforceable resulting trust created,, although some 
 agreement not reduced to writing. 
 
 Cited in footnotes to Cook v. Patrick, 11 L. R. A. 573, which holds resulting 
 trust in favor of one paying for land deeded to another extends only to life inter- 
 est, when such his intent; Edwards v. Culbertson, 18 L. R. A. 204, which holds 
 woman purchasing land with money fraudulently obtained by promise to marry, 
 trustee on refusal to do so. 
 
 2 L. R. A. 148, PEOPLE ex rel. NEW YORK v. BROOKLYN, 111 N. Y. 505, If) 
 
 N. E. 90. 
 Taxation of public property. 
 
 Cited in Board of Improvement v. School District, 56 Ark. 360, 16 L. R. A. 42 l r 
 35 Am. St. Rep. 108, 19 S. W. 969, holding public-school property not assessable 
 for local improvement; Re Thrall, 30 App. Div. 273, 51 N. Y. Supp. 595, 
 holding legacy to city liable to transfer tax; Croner v. Cowdrey, 46 N. Y. 
 S. R. 561, 19 N. Y. Supp. 909, holding sale of state land for nonpayment of 
 city tax void; Wells v. Johnston, 55 App. Div. 487, 67 N. Y. Supp. 112, holding 
 county-tax sale subject to prior vested rights of people; Smith v. Buffalo, 159 N. 
 Y. 432, 54 N. E. 62, Affirming 90 Hun, 122, holding public streets not assessable 
 for local improvements; People ex rel. Amsterdam v. Hess, 157 N. Y. 44, 51 N. E. 
 410, and Rochester v. Coe, 25 App. Div. 304, 49 N. Y. Supp. 502, holding city 
 property outside its limits liable to state and county tax; People ex rel. Atkins 
 v. Buffalo, 63 App. Div. 565, 71 N. Y. Supp. 1145, Affirming 33 Misc. 172. OS N. 
 Y. Supp. 409, holding purchaser at city tax sale takes subject to prior tax liens 
 held by city; Edwards & W. Constr. Co. v. Jasper County, 117 Iowa, 374, !)4 Am. 
 St. Rep. 301, 90 N. W. 1006, holding county liable for assessment for paving: 
 streets around courthouse square; Stiles v. Newport, 76 Vt. 171, 56 Atl. 662. 
 holding water system owned 'by municipality used for fire protection and other 
 municipal uses, and also to supply inhabitants water for domestic purposes, ex- 
 empt although part of system is in territory of another municipality; Clark v.. 
 Sprague No. 2, 113 App. Div. 646, 99 N. Y. Supp. 304, holding lands of munici- 
 pality not held for public purpose subject to taxation; Canaan v. Enfield Village 
 Fire Dist. 74 N. H. 527, 70 Atl. 250, holding property of one village fire dis- 
 trict situate in another village but used in construction or operation of water- 
 works of district, exempt; Delhi v. Delaware County, 201 N. Y. 413, 94 X. E. 
 874, on exemption of village water works from taxation; People ex rel. Hollock 
 v. Purdy, 72 Misc. 124, 130 N. Y. Supp. 1077, holding that property con- 
 demned by city is not taxable, though subsequently found to be unnecessary for 
 public use for which it was condemned. 
 
 Cited in footnote to Gate City Guards v. Atlanta, 54 L. R. A. 806, which de- 
 nies exemption, as public property, to armory owned by volunteer military force. 
 
 Cited in notes (19 L. R. A. 81) on power of state legislature to exempt from 
 taxation; (48 L. R. A. 493) on power of legislature to impose burdens upon 
 municipalities, and to control their local administration and property; (132 Am. 
 St. Rep. 294, 296, 313, 325, 328, 330) on exemption from taxation or assessment 
 of lands owned by governmental bodies, or in which they have an interest. 
 
241 L. R. A. CASES AS AUTHORITIES. [2 L.R..A 150 
 
 Cited in note (59 L. R. A. 523) on establishment, regulation, and protection of 
 ferries. 
 Franchise* held by city. 
 
 Cited in Re Wheeler, 62 Misc. 44, 115 N. Y. Supp. 605, holding where city has 
 accepted grant of franchise, its operation may be enforced by mandamus at 
 suit of private citizen. 
 
 2 L. R. A. 150, HARNICKELL v. NEW YORK L. INS. CO. Ill N. Y. 390, 18 
 
 X. E. 632. 
 Conditions in acceptance of contracts. 
 
 Cited in Travis v. Nederland L. Ins. Co. 43 C. C. A. 656, 104 Fed. 488, holding 
 no recovery on policy which had never taken effect through failure to accept pro- 
 posal of insured. 
 
 Cited in footnote to Summers v. Mutual Life Ins. Co. 66 L.R.A. 812, which 
 holds contract for present insurance not made by applicant giving note for first 
 premium in consideration that a policy shall be issued where his examination is 
 to be made in future and he expressly stipulates that note shall not be negotiated 
 until policy has been delivered and accepted. 
 
 Cited in note (138 Am. St. Rep. 60) on delivery and acceptance of insurance 
 policies. 
 
 Distinguished in Westerfeld v. New York L. Ins. Co. 129 Cal. 77, 61 Pac. 667, 
 holding company not estopped to deny authority of agent to make an agreement 
 as to conditional delivery. 
 Parol conditions. 
 
 Cited in Hartford F. Ins. Co. v. Wilson, 187 U. S. 476, 47 L. ed. 265, 23 
 Sup. Ct. Rep. 189, holding operation of insurance policy may, by agent's oral 
 agreement, be made to depend on company's acceptance of risk; Key v. National 
 L. Ins. Co. 107 Iowa, 451, 78 N. W. 68, holding refusal by insurance company to 
 loan on property insured, as condition precedent to application, authorized recov- 
 ery of premium; Shields v. Equitable Life Assur. Soc. 121 Mich. 695, 80 N. W. 
 793, holding parol agreement bet\veen applicant and party advancing premium 
 did not show conditional delivery; Wilson v. Hartford F. Ins. Co. 17 App. D. C. 
 25, holding insurance contract cannot be shown by verbal conditional delivery : 
 Blewitt v. Boorum, 27 Jones & S. 329, 14 N. Y. Supp. 298, holding parol evidence 
 of conditional delivery of contract under seal to manufacture patented article 
 admissible: Moore v. Farmers' Mut. Ins. Asso. 107 Ga. 203, 33 S. E. 65, holding 
 evidence admissible to show conditional delivery of policy; McCaskey Register Co. 
 v. Green, 57 Misc. 549, 109 N. Y. Supp. 970, holding where contract is signed 
 by agent and purchaser but is silent as to size of article contracted for, testimony 
 of stipulation at time of making contract that article would fit place purchased 
 for is competent; J. I. Case Threshing Mach. Co. v. Barnes, 133 Ky. 333, 117 
 S. W. 418. holding delivery in escrow of contract of purchase of machine and notes 
 for purchase price, on agreement that they shall not go into effect unless on suc- 
 cessful preliminary test of machine, made to seller's agent, valid ; Summers v. 
 Mutual L. Ins. Co. 12 Wyo. 393, 66 L.R.A. 820, 109 Am. St. Rep. 992, 75 Pac. 937, 
 holding contract not consummated where agent of insurer receives note on 
 promise to deliver policy within stated time, on condition note is not to be nego- 
 tiated until policy is written, delivered, found to be satisfactory and approved 
 and accepted; Koester v. Northwestern Port Huron Co. 24 S. D. 557, 124 
 N. W. 740, holding admissible parol evidence that contract was never delivered. 
 
 Cited in footnote to Hicks v. British America Assur. Co. 48 L. R. A. 424, which 
 L.R.A. Au. Vol. I. 16. 
 
2 L.R.A. 350] L. R. A. CASES AS AUTHORITIES. 242 
 
 holds rights of one whose property was destroyed after oral contract to insure it, 
 but before policy issued, subject to provisions of standard policy prescribed by 
 law. 
 
 2 L. R. A. 153, FECHHEIMER v. BAUM, 37 Fed. 167. 
 
 Federal administration of equitable rights nnder state statutes. 
 
 Cited in note (18 L. R. A. 267) on adoption by Federal courts of equitable rem- 
 edies enlarged by state statutes. 
 Fraud. 
 
 Cited in 43 Fed. 719, decision on exceptions to master's report, holding 
 agreement to prefer creditor not rendered fraudulent by failure to record; 
 Stein v. Hill, 100 Mo. App. 43, 71 S. W. 1107, holding evidence of purchaser's 
 insolvency not conclusive as to fraudulent intent not to pay for goods. 
 
 Cited in notes (9 L. R. A. 609) on action for rescission of contract for fraud; 
 (14 L.R.A. 265) on concealment of insolvency as fraud in obtaining credit; (18 
 Am. St. Rep. 364) on rescission of sales on ground for fraud. 
 Statement to mercantile agency. 
 
 Cited in Davis v. Louisville Trust Co. 30 L.R.A.(N.S-) 1015, 104 C. C. A. 24, 
 181 Fed. 15, holding that person, obtaining, through subscriber to mercantile 
 agency, erroneous information furnished by corporation, may rescind contract 
 for purchase of its stock. 
 "When appointment of receiver is proper. 
 
 Cited in note (72 Am. St. Rep. 61) as to when appointment of receiver is 
 proper. 
 
 2 L. R. A. 159, KEYSER'S APPEAL, 124 Pa, 80, 16 Atl. 577. 
 Statute of limitations against debt of decedent. 
 
 Cited in Geist's Estate, 16 Pa. Dist. R. 333, holding presentation of claim in 
 orphan's court tolls statute; Re Pitcairn, 20 Pittsb. L. J. X. S. 184, holding that 
 statute of limitations is not tolled by decedent's death; Gardner's Estate, 19 
 Pa. Dist. R. 138, holding that right to recover on certificate of deposit issued by 
 banking firm is lost by laches, where claimant fifteen years after death of mem- 
 ber of firm presents claim at audit of his executor's accounts. 
 
 Distinguished in Reber's Appeal, 125 Pa. 23, 17 Atl. 189, holding adjudication 
 and allowance of claim against decedent's estate tolls statute of limitations. 
 
 2 L. R. A. 161, ALEXANDER v. NORTHWESTERN MASONIC AID ASSO. 126 
 
 111. 558, 18 N. E. 556. 
 Who entitled to insurance payable to heirs or devisees. 
 
 Cited in Lyons v. Yerex, 100 Mich. 217, 43 Am. St. Rep. 452, 58 N. W. 1112, 
 holding widow of intestate entitled to share in proceeds of benefit certificate pay- 
 able to heirs; People use of Brooks v. Petrie. 191 111. 508, 85 Am. St. Rep. 268, 
 61 N. E. 499, Affirming 94 111. App. 657, holding proceeds of beneficiary certifi- 
 cate payable to "legal heirs OF devisees of holder" not estate assets; Birge v. 
 Franklin, 103 Minn. 483, 115 N. W. 278, holding under insurance payable to 
 "heirs at law" of insured, if he survives beneficiary (wife) the interest in the 
 policy passes to son as heir of beneficiary on death of beneficiary before insured; 
 Thomas v. Covert, 126 Wis. 599, 3 L.R.A. (N.S.) 908, 105 N. W. 922. 5 A. & E. 
 Ann. Gas. 456, holding where policy is payable to "legal heirs" widow shares 
 equally with children of decedent. 
 
 Cited in notes (30 L. R. A. 596) on widow as "heir" within meaning of life 
 insurance policies; (8 L.R.A. 114) on contract of mutual benefit association; 
 
243 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 160 
 
 (3 L.R.A.(N.S.) 905) as to who are legal heirs to whom insurance payable; 
 (14 Am. St. Rep. 203; 19 Am. St. Rep. 788) on who is entitled to insurance 
 payable to devisees or heirs; (44 Am. St. Rep. 404, 407) on insurance payable 
 to '"heirs;" (52 Am. St. Rep. 571') on wife or widow as beneficiary mutual or 
 membership life or accident insurance. 
 
 2 L. R. A. 164, JAMES v. STEERE, 16 R. I. 367, 16 Atl. 143. 
 Illegal contracts and remedies on same. 
 
 Cited in footnote to Och v. Missouri, K. & T. R. Co. 36 L. R. A. 442, which 
 holds release of carrier by injured woman while dazed and nervous from recent 
 shock, obtained by misrepresenting contents, which she did not read, voidable only, 
 not void. 
 
 Cited in note (12 L. R. A. 122) on remedy of parties in pari delicto. 
 Fiduciary relation between attorney and client. 
 
 Cited in footnote to Elmore v. Johnson, 21 L. R. A. 366, which holds voidable, 
 irrespective of fairness, contract between attorney and client pending litigation 
 to give part of property involved as compensation for attorney's services. 
 
 2 L. R. A. 166, DEWIRE v. BOSTON & M. R. CO. 148 Mass. 343, 19 N. E. 523. 
 AVho are passengers. 
 
 Cited in Jones v. Boston & M. R. Co. 163 Mass. 246, 39 N. E. 1019, holding one 
 with ticket, endeavoring without knowledge of trainmen to board train where not 
 customary to receive passengers, not passenger; Chattanooga R. & C. R. Co. v. 
 Huggins, 89 Ga. 504, 15 S. E. 848, holding one in car switched, according to 
 custom, to defendant's connecting line, a passenger, whether he has ticket or not; 
 Chicago & E. I. R. Co. v. Jennings, 190 111. 498, 54 L. R. A. 835, 60 N. E. 818, 
 Reversing 89 111. App. 349 (dissenting opinion), majority holding one with 
 ticket, crossing railroad tracks on public highway to board train, not having 
 reached platform, not passenger; Fitzgibbon v. Chicago N. W. R. Co^. 108 Iowa, 
 4323, 79 N. W. 477 (dissenting opinion), majority holding one not an excursionist, 
 knowingly boarding special excursion train, not presumed to have been 
 passenger; Raines v. Chesapeake & 0. R. Co. 68 W. Va. 697, 33 L.R.A.(N.S.) 587, 
 70 S. E. 711, holding carrier not liable for injury to prospective passenger who 
 entered car while train was being made up, from jolt in coupling cars. 
 
 Cited in footnotes to Woolsey v. Chicago, B. & Q. R. Co. 25 L. R. A. 79, which 
 holds person riding on freight locomotive without conductor's consent not a pas- 
 senger; Atchison, T. & S. F. R. Co. v. Headland, 20 L. R. A. 822, which holds 
 presumption that person on train a passenger not applicable to caboose attached 
 to freight train. 
 
 Cited in notes (7 L. R. A. 688) on who are passengers; (11 L. R. A. 483) on 
 express company agents as passengers; (11 L. R. A. 486) on postal clerks as pas- 
 sengers; (24 L. R. A. 522) on when one who has started for train becomes pas- 
 senger; (12 L. R. A. 340) on passengers; stipulation in contract of carriage. 
 Riding on car platform as contributory negligence. 
 
 Cited in Kansas & A. V. R. Co. v. White, 14 C. C. A. 484, 32 U. S. App. 192. 
 67 Fed. 483, holding one injured standing on car platform entitled to recover if 
 such negligence did not contribute to injury; Sickles v. Missouri, K. & T. R. Co. 
 13 Tex. Civ. App. 436, 35 S. W. 493, holding passenger may pass from one car 
 to another, assuming ordinary risks incident thereto; Woods v. Southern P. Co. 
 9 Utah, 153, 33 Pac. 628, holding whether act of one riding on car platform con- 
 tributed to injury question for jury; Johnson v. Yazoo & M. V. R. Co. 94 Miss. 
 453, 22 L.R.A.(N.S.) 316, 47 So. 785, holding it not contributory negligence to 
 ride on vestibuled platform of train where injury is caused by negligence of 
 
2 L.R.A. 166] L. R. A. CASES AS AUTHORITIES. 244 
 
 servant in creating dangerous condition in vestibule; Miller v. Chicago, St. P. 
 M. & O. R. Co. 135 Wis. 248, 17 L.R.A.(N.S-) 161, 115 X. W. 794, 128 Am. St. 
 Rep. 1021, holding it contributory negligence to ride on platform of nonvestibuled 
 car where sufficient seats are unoccupied inside, in the night time after or during 
 severe rainstorm, the train running very fast; Atlantic Coast Line R. Co. v. Cros- 
 by, 53 Fla. 420, 43 So. 318, holding it not negligence per se to go upon platform 
 of car while train is standing at station. 
 
 Cited in notes (34 L. R. A. 721) on assumption of incidental risk by passen- 
 ger passing from one car to another; (24 L. R. A. 710) on liability of carrier for 
 injuries to passenger riding on platform of crowded train; (11 L. R. A. 130) on 
 contributory negligence of passenger, defeating recovery for injury; (22 L. R. A_ 
 260) on right of passenger to seat. 
 
 2 L. R. A. 168, CHEMICAL ELECTRIC LIGHT & P. CO. v. HOWARD, 148 Mass. 
 
 352, 20 N. E. 92. 
 
 Second appeal, 150 Mass. 495, 23 N. E. 317. 
 Note given for void patent. 
 
 Cited in Chemical Electric Light & P. Co. v. Howard, 150 Mass. 497, 23 X. E. 
 317, holding note given for patent warranted "in full force and effect," but void 
 in fact, not binding; Clemshire v. Boone County Bank. 53 Ark. 514, 14 S. W. 901, 
 holding note given for interest in business valueless, because infringing on patent 
 right, without consideration; Hathorn v. Wheelwright, 99 Me. 353, 59 Atl. 517, 
 2 A. & E. Ann. Cas. 428, holding note unenforceable. 
 
 Cited in note (20 L. R. A. 605) on validity of notes given for invalid patents. 
 
 2 L. R. A. 172, HURLEY v. HURLEY, 148 Mass. 444, 19 X. E. 545. 
 Partition, wlieii maintainable. 
 
 Cited in Wilmot v. Lathrop, 67 Vt. 680, 32 Atl. 861, holding cotenant not con- 
 tributing to redeem from tax sale cannot maintain partition; O'Brien v. Bailey,. 
 163 Mass. 326, 39 X. E. 1109, holding partition cannot be had of land in posses- 
 sion of mortgagee. 
 
 Cited in note (20 L. R. A. 627) on effect of adverse possession on right to 
 partition. 
 
 Distinguished in Wettlaufer v. Ames, 133 Mich. 207, 103 Am. St. Rep. 449, 94 
 N. W. 950, holding where mortgagee does not take legal title to land mortgaged, 
 tenant in common can maintain partition against co-tenant though latter has 
 redeemed from foreclosure sale and former has not paid nor tendered share 
 of its cost. 
 It itilils of cotenaiits among themselves. 
 
 Cited in Barnes v. Boardman, 152 Mass. 393, 9 L. R. A. 572, 25 X. E. 623, hold- 
 ing cotenant of reversion, acquiring life estate, cannot cut off others by fore- 
 closure of mortgage without giving opportunity to contribute; Kerse v. Miller, 
 169 Mass. 47, 47 N. E. 504, holding life tenant of portion of mortgaged estate, 
 redeeming the whole, entitled to possession until repaid amount advanced above 
 his share; Re Hagan, 33 Pittsb. L. J. X. S. 51, holding presumption of payment 
 of mortgage owned by one cotenant does not arise from lapse of time; Mc- 
 Pheeters v. Wright, 124 Ind. 576, 9 L. R. A. 181. 24 X. E. 734, holding one cannot 
 acquire title against cotenant at sale under encumbrance created by owner, 
 through whom both claim; Harris v. Lloyd. 11 Mont. 401, 28 Am. St. Rep. 475, 
 28 Pac. 736, holding one cotenant under no obligation to disclose to others that 
 upon sale he receives large amount; Roll v. Everett, 73 X. J. Eq. 701, 71 Atl. 
 263, 17 A. & E. Ann. Cas. 1196, holding one tenant who discharges lien on com- 
 mon property has right to contribution; Solis v. Williams, 205 Mass. 355, 91 
 
245 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 175 
 
 N. E. 148, holding that tenant in common can redeem though upon redemption 
 tax lien is kept alive for his benefit until co-tenants pay their share. 
 
 Cited in note (9 L. R. A. 740) on right of tenant in common, paying lien, to 
 contribution among cotenants. 
 
 2 L. R. A. 173, HARDMAX v. BRETT, 37 Fed. 803. 
 
 It in In of common carrier to recover for injury to property in it* posses- 
 sion. 
 
 Cited in Chicago v. Pennsylvania Co. 57 C. C. A. 516, 119 Fed. 504, holding 
 common carrier may maintain action for injury of cars of other companies tem- 
 porarily in its possession; The Xonpariel, 149 Fed. 525, holding payment by 
 tort-feasor to libelant of vessel of damages sustained by reason of injury bar to 
 further recovery arising out of same cause of action. 
 
 2 L. R. A. 175, ANDERSON v. APPLETON, 112 N. Y. 104, 19 N. E. 427. 
 Appealability of order. 
 
 Cited in Birge v. Berlin Iron Bridge Co. 133 N. Y. 483, 31 N. E. 609, holding 
 order vacating injunction because plaintiff not entitled to sue, reviewable; 
 Schneider v. Rochester, 155 N. Y. 621, 50 N. E. 291, and Kreizer v. Allaire, 16 
 Misc. 7, 37 N. Y. Supp. 687, holding order which fails to state ground on which it 
 was determined not appealable; St. John v. Andrews Institute, 192 N. Y. 389, 85 
 N. E. 143, on rights of nonappealing next of kin on reversal of judgment con- 
 struing wilL 
 Jurisdiction of equity to construe, establish, or invalidate v. i I!-. 
 
 Cited in Hemmje v. Meinen, 20 N. Y. Supp. 621 ; Whitney v. Whitney, 6.3 Hun, 
 70, 18 N. Y. Supp. 3 ; Bradhurst v. Field, 32 N. Y. S. R. 432, 10 N. Y. Supp. 454, 
 holding power of equity to construe wills results from its jurisdiction over 
 trusts; Adams v. Becker, 28 N. Y. S. R. 912, 8 N. Y. Supp. 261, holding action 
 to construe will does not lie unless construction necessary; Benner v. Benner, 
 35 N. Y. S. R. 604, 12 N. Y. Supp. 474, holding action to construe will should be 
 brought by all the executors; Mellen v. Mellen, 139 N. Y. 218, 34 N. E. 925, 
 holding grantee of testator cannot sue to construe will; Anderson v. Carr, 65 
 Hun, 180, 19 N. Y. Supp. 992. holding equity without jurisdiction to establish 
 will; Nelson v. McDonald, 61 Hun. 409, 16 N. Y. Supp. 273, holding action to 
 correct mistake of decedent in signing wrong will not maintainable; Delabarre 
 v. McAlpin, 71 App. Div. 593, 76 N. Y. Supp. 301, holding supreme court will 
 not determine which of two wills should be probated; Kalish v. Kalish, 166 
 N. Y. 371, 59 N. E. 917, sustaining jurisdiction of suit to invalidate will 
 involving trust; Thomas v. Thomas, 9 App. Div. 489, 41 N. Y. Supp. 276, and 
 Wallace v. Payne. 14 App. Div. 600, 43 N. Y. Supp. 1119, holding heir at law 
 may sue to set aside fraudulent will ; Cobb v. Hanford, 88 Hun, 24, 34 N. Y. Supp. 
 511, sustaining jurisdiction of suit to enjoin probate of will made in violation 
 of a promise; Long v. Rodgers, 79 Hun, 443, 29 N. Y. Supp. 981, holding next 
 of kin cannot sue to invalidate probate after one year; Higgins v. Union Trust 
 Co. 32 N. Y. S. R. 197, 10 N. Y. Supp. 389. holding heirs at law cannot sue to 
 construe will for purpose of invalidating it; Jones v. Richards, 24 Misc. 627, 
 54 N. Y. Supp. 126, and Kalish v. Kalish, 45 App. Div. 530, 61 N. Y. Supp. 448, 
 holding heir at law cannot sue to invalidate trust in will ; Davis v. Tremain, 69 
 }Iisc. 124. 126 N. Y. Supp. 43; Tonnele v. Wetmore, 195 N. Y. 442. 88 N. E. 1068, 
 holding Supreme Court has jurisdiction to entertain action by executor, trustee 
 or cestui que trust to construe doubtful or disputed trust clause in will; Tonnele 
 v. Wetmore, 124 App. Div. 694, 309 N. Y. Supp. 349, holding court of equity 
 has no jurisdiction of proceeding to construe will leaving real property in trust 
 
2 L.R.A. 175] L. R. A. CASES AS AUTHORITIES. 24$ 
 
 where sole purpose of action is to overthrow trust as violative of statute against 
 perpetuities; Higgins v. Downs, 101 App. Div. 124, 91 N. Y. Supp. 937, holding 
 judgment creditor of beneficiary under will cannot, under statute authorizing 
 action to determine validity, construction or effect of testamentary disposition 
 of realty, maintain action to determine estate of beneficiary; Monypeny v. Mony- 
 peny, 131 App. Div. 274, 115 N. Y. Supp. 804, holding court has no jurisdiction 
 to test general construction of will or its effect on trust estate created in 
 neighboring jurisdiction; Dixon v. Cozine, 64 Misc. 604, 118 N. Y. Supp. 615, 
 holding Supreme Court has no jurisdiction to determine validity of will where 
 Surrogate Court has refused it admission to probate; Voshall v. Clark, 123 App. 
 Div. 139, 103 N. Y. Supp. 313, holding court of equity has no inherent power 
 to construe devise and authority belongs incidentally to jurisdiction over trusts; 
 Higgins v. Downs, 34 N. Y. Civ. Proc. Rep. 90, 91 N. Y. Supp. 937, on extent of 
 equitable jurisdiction in construction of wills. 
 
 Cited in notes (10 L.R.A. 766) on jurisdiction of suit for construction of will; 
 (129 Am. St. Rep. 88) on jurisdiction of equity to construe will. 
 
 Distinguished in Long v. Rogers, 24 X. Y. Civ. Proc. Rep. 66, 29 X. W. Supp. 
 981, holding under statute next of kin can maintain action to determine validity 
 of will. 
 Jurisdiction of equity over settlement of estates. 
 
 Cited in Weston v. Goodrich, 86 Hun, 196, 33 X. Y. Supp. 382, holding equity 
 has concurrent jurisdiction to settle estates; Morse v. Smith, 42 X. Y. S. R. 
 170, 17 X. Y. Supp. 386, holding action to compel delivery to and inventory of 
 property by executor not maintainable; Sanders v. Soutter, 126 X. Y. 200, 27 
 X. E. 263, refusing to entertain action for executor's accounting; Steinway v. 
 Von Bernuth, 59 App. Div. 269, 69 X. Y. Supp. 1146 (dissenting opinion), 
 majority sustaining jurisdiction of executor's accounting; Re Smith, 120 App. 
 Div. 200, 105 X. Y. Supp. 223, holding Supreme Court will not exercise equitable 
 powers to entertain action for accounting, where complete relief can be obtained 
 in Surrogate Court. 
 
 Cited in not* (3 L. R. A. 813) on jurisdiction of surrogate court as to account- 
 ing and distribution of estate. 
 Repeal of statute. 
 
 Cited in Stack v. Brooklyn, 150 X. Y. 345, 44 X. E. 1030; Quinlan v. Welch, 
 141 X. Y. 163, 36 X. E. 12; Gabel v. Williams, 39 Misc. 496, 80 X. Y. Supp. 
 489; People ex rel. Ellett v. O'Grady, 46 App. Div. 215, 61 X. Y. Supp. 577, 
 holding repeal by implication depends on legislative intent ; People ex rel. 
 Fleming v. Dalton, 24 Misc. 90, 53 X. Y. Supp. 291, holding general statute 
 regarding tenure of office abrogates provisions of city charter; Buffalo v. Xeal, 
 86 Hun, 83, 33 X. Y. Supp. 346, holding repugnant general act repeals prior local 
 act; Cromwell v. MacLean, 123 X. Y. 485, 25 X. E. 932, holding prior statute 
 repealed by subsequent act introducing new system; Opinion of the Justices, 
 66 X. H. 668, 33 Atl. 1076, holding prior act repealed by later act revising whole 
 subject-matter; Wallace v. Payne, 9 App. Div. 35, 41 X. Y. Supp. Ill, holding 
 that Laws 1853, chap. 238, and Laws 1870, chap. 316, have been repealed; Colby 
 v. Colby, 81 Hun, 223, 30 X. Y. Supp. 677, holding Laws 1879, chap. 316, repealed; 
 Casterton v. Vienna, 17 App. Div. 109, note, 44 X. Y. Supp. 868 (dissenting 
 opinion), majority holding special act not repealed by general statute; Gabel 
 v. Williams, 39 Misc. 496, 80 X. Y. Supp. 489, holding provisions of prior statute 
 not repealed by repugnant provisions of later statute, where expressly excepted 
 therefrom; Colby v. Colby, 24 X. Y. Civ. Proc. Rep. 150, 30 X. Y. Supp. 677, 
 on repeal of statute as to proper person to apply for establishment of will; Heal 
 
247 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 183 
 
 v. Richmond County Sav. Bank, 127 App. Div. 431, 111 N. Y. Supp. 602, on 
 repeal of statute by inference where such is its legal effect. 
 
 2 L. R. A. 180, PEOPLE ex rel. UNION INS. CO. v. NASH, 111 N. Y. 310, 
 
 7 Am. St. Rep. 747, 18 N. E. 630. 
 Effect of agreement to arbitrate. 
 
 Cited in New York, Lumber & W. Working Co. v. Schnieder, 119 N. Y. 478, 
 24 N. E. 4, holding arbitrament binding; Sartwell v. Sowles, 72 Vt. 277, 82 Am. 
 St. Rep. 943, 48 Atl. 11, holding submission to arbitration no bar to action after 
 revocation; New Jersey & P. Concentrating Works v. Ackermann, 15 Misc. 609, 
 37 N. Y. Supp. 489, holding provision in employer's liability policy limiting 
 right of action to one defendant unenforceable; Atterbury v. Columbia College, 
 66 Misc. 275, 123 N. Y. Supp. 25, holding in revocable arbitration neither party 
 has power to withdraw after allegations and proofs have been made and matter 
 finally submitted; Thomas W. Finucane Co. v. Board of Education, 190 N. Y. 
 83, 82 N. E. 737, holding agreement, that arbitrators shall be appointed in case 
 of controversy, is subject to revocation at any time before final submission; Piz- 
 zini v. Hutchins, 70 Misc. 95, 127 N. Y. Supp. 1043, holding that submission to 
 arbitration is not revocable after matter is submitted to arbitrators for their 
 decision. 
 
 Cited in footnote to Union Ins. Co. v. Central Trust Co. 44 L. R. A. 227, which 
 holds deposit to secure payment of award forfeited on revocation of arbitration. 
 
 Cited in notes (10 L. R. A. 560) on fire insurance; revocation of submission 
 to arbitration; (11 L.R.A. 623) on arbitration and award; (138 Am. St. Rep. 
 643, 644, 649) on revocation of agreement to arbitrate; (43 L. ed. U. S. 118) 
 on arbitration proceedings. 
 
 2 L. R. A. 183, KERNOCHAN v. MURRAY, 111 N. Y. 306, 7 Am. St. Rep. 744, 
 
 18 N. E. 868. 
 Effect on contract of death of contracting: party. 
 
 Cited in Brown v. Cushman, 173 Mass. 370, 53 N. E. 860. holding contract to 
 manufacture, requiring personal supervision, terminated by death; Chamberlain 
 v. Dunlop, 126 N. Y. 52, 22 Am. St. Rep. 807, 26 N. E. 966, holding contract in 
 lease to rebuild binds executor; Drummond v. Crane, 159 Mass. 579, 23 L. R. A. 
 714, 38 Am. St. Rep. 460, 35 N. E. 90, holding obligation to take water for certain 
 time survived to administrator; Kernochan v. Murray, 53 Hun, 51, 5 N. Y. Supp. 
 869, holding guaranty not terminated by death of person to whom it ran; 
 Williams v. Williams, 35 N. Y. S. R. 201, 12 N. Y. Supp. 601, sustaining action 
 against administratrix of copartner upon agreement of dissolution; Matteson v. 
 Dent, 17G U. S. 528, 44 L. ed. 574, 20 Sup. Ct. Rep. 419, holding allottees of 
 deceased holder of bank stock liable to assessment for debts of insolvent corpora- 
 tion; Wattengel v. Schultz, 11 Misc. 168, 32 N. Y. Supp. 91, holding insurance 
 policies were presumptively taken out by administratrix to execute covenant of 
 deceased; Barrett v. Towne, 196 Mass. 489, 13 L.R.A.(N.S.) 644, 82 N. E. 698, 
 holding contract terminated where performance depended entirely on personal 
 efforts of decedent; Barnes v. King, 129 App. Div. 195, 113 N. Y. Supp. 325, 
 holding in absence of express words there is presumption of law parties to con- 
 tract intend to bind themselves and personal representatives. 
 
 Cited in notes (22 Am. St. Rep. 811, 813, 814) on enforceability of contract 
 after contractor's death; (2 Brit. Rul. Cas. 939) on is liability of guarantor or 
 surety determined by his death; (21 Eng. Rul. Cas. 670) on death as revocation of 
 contract of suretyship or guaranty. 
 
2 L.R.A. 183] L. K. A. CASES AS AUTHORITIES. 248 
 
 Primary or secondary responsibility. 
 
 Cited in Wysong v. Meyer, 58 App. Div. 426, 69 N. Y. Supp. 286, holding bond 
 to procure discontinuance of foreclosure primary obligation; Pittsburgh, C. C. 
 & St. L. R. Co. v. Keokuk & H. Bridge Co. 46 C. C. A. 645, 107 Fed. 788, holding 
 railroads not discharged by change in contract with bridge company on ground 
 that they were guarantors or sureties for its bonds; De Remer v. Brown, 165 
 N. Y. 419, 59 N. E. 129, holding agent contracting in own name personally bound. 
 
 Cited in footnote to Staver & Walker v. Locke, 17 L. R. A. 652, which holds 
 payment of notes taken by agent for goods sold not covered by guaranty of full 
 performance of agent's engagements. 
 
 Cited in notes (6 L.R.A. 383; 8 L.R.A. 381) on contract of guaranty; (39 
 L.R.A. (N.S.) 726) as to when a guaranty is continuing. 
 
 2 L. R. A. 185, WIGHTMAN v. CHICAGO & X. W. R. CO. 73 Wis. 169, 9 Am. St. 
 
 Rep. 778, 40 N. W. 689. 
 Refusal to receive verdict. 
 
 Cited in Sherman v. Menominee River Lumber Co. 77 Wis. 21, 45 N. W. 1079, 
 holding court may decline to receive special verdict, and direct further con- 
 sultation; State Life Ins. Co. v. Postal, 43 Ind. App. 149, 84 N. E. 156, holding 
 where 'before jury has left box and before verdict is fully received and recorded, 
 jury can be sent back for further deliberation on disclosure that verdict does 
 not meet approval of entire panel. 
 
 Distinguished in Koch v. State, 126 Wia. 479, 3 L.R.A. (N.S.) 1090.. 106 N. W. 
 531, 5 A. & E. Ann. Cas. 389, holding where jury has returned sealed verdict into 
 court, and separated, which verdict was a nullity, court could not permit amend- 
 ment thereof to make valid verdict. 
 Railroads, liability in respect to tickets. 
 
 Cited in Gulf, C. & S. F. R. Co. v. Rather, 3 Tex. Civ. App. 78, 21 S. W. 951, 
 holding, passenger entitled to stand on contract as made, although not contained 
 in ticket through fault of agent; Pennsylvania Co. v. Bray, 125 Ind. 237, 25 
 N. E. 439; and Northern P. R. Co. v. Pauson, 30 L. R. A. 733, 17 C. C. A. 291, 
 44 U. S. App. 178, 70 Fed. 589, holding passenger's failure to have return coupon 
 stamped does not deprive him of right to return passage, when he has done all he 
 could to get it stamped; Gulf, C. & S. F. R, Co. v. Wright, 2 Tex. Civ. App. 469, 
 21 S. W. 399, holding railroad responsible for wrongful act of agent in unreason- 
 ably limiting time for return trip; Missouri P. R. Co. v. Martino, 2 Tex. Civ. 
 App. 642, 18 S. W. 1066, holding right to transportation not lost by agent re- 
 fus'ing to sign and stamp return ticket; Fairfield v. Louisville & X. R. Co. 94 
 Miss. 892, 48 So. 513, holding ticket valid, although it read "void if detached" 
 where detachment was by inadvertence and both book and ticket are presented 
 and on inspection they are shown to correspond; Young v. Central R. Co. 120 Ga. 
 27, 65 L.R.A. 436, 102 Am. St. Rep. 68, 47 S. E. 556, 1 A. & E. Ann. Cas. 24, 
 holding ticket valid, as against stipulation on its face against mutilation, al- 
 though it is torn in two pieces, when both pieces are presented at same time 
 and it is apparent they are parts of same ticket and form entire ticket. 
 
 Cited in footnote to Watson v. Louisville & N. R. Co. 49 L. R. A. 454, which 
 holds condition requiring return coupon of round-trip ticket to be stamped rea- 
 sonable. 
 
 Cited in notes (12 L. R. A. 340) on effect of stipulation in contract of carriage; 
 (15 L. R. A. 817) on right of railroad company to charge additional fare for 
 neglect to procure ticket; (9 L : R. A. 688) on expulsion of passenger from train 
 for want of ticket; (61 Am. St. Rep. 102) on right to transportation of holders 
 of certain tickets. 
 
249 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 188 
 
 Distinguished in Anderson v. Union Traction Co. 7 Pa. Dist. R. 43, 4 Lack. 
 Legal Xews, 10, holding street railway not responsible for error of conductor in 
 issue of transfer ticket. 
 
 1 )ji in :i i-. -. For ejection of passenger. 
 
 Cited in Phettiplace v. Northern P. R. Co. 84 Wis. 418, 20 L. R. A. 487, 54 
 X. YV. 1092, holding verdict of $300 for injury similar to that in principal case 
 not excessive. 
 For injury to feeling's. 
 
 Cited in Reinke v. Bentley, 90 Wis. 459, 63 N. W. 1055, holding recovery for 
 physical pain and suffering and mental suffering proper in action for personal 
 injury. 
 
 Distinguished in Summerfield v. Western U. Teleg. Co. 87 Wis. 12, 41 Am. St. 
 Rep. 17, 57 N. W. 973, holding mental anguish alone, from delay of telegram, 
 not independent basis for compensatory damages. 
 
 2 L. R. A. 188, CASS COUNTY v. CHICAGO, B. & Q. R. CO. 25 Neb. 348 r 
 
 41 N. W. 246. 
 
 Cited in Chicago, B. & Q. R. Co. v. Cass County, 72 Neb. 490, 117 Am. St. 
 Rep. 806, 101 N. W. 11, as to previous litigation involving similar question, 
 but held not to be res adjudicata. 
 \Vlieii property taxable. 
 
 Followed without discussion in Chicago, B. & Q. R. Co. v. School Dist. No. 1, 
 25 Xeb. 359, 41 N. W. 249. 
 
 Cited in Chicago, B. & Q. R. Co. v. Nebraska City, 53 Neb. 454, 73 N. W. 952, 
 holding railroad bridge not within city limits cannot be taxed by city; Cowen v. 
 Aldridge, 51 C. C. A. 676, 114 Fed. 50, holding railroad bridge a structure to- 
 be taxed locally. 
 
 Cited in footnotes to State v. Virginia & T. R. Co. 35 L.R.A. 759, which holds 
 earning capacity of railroad main consideration in determining taxable valuer. 
 Knoxville & 0. R. Co. v. Harris, 53 L. R. A. 921, which holds exemption from 
 privilege tax not included in exemption from ad valorem tax; Cleveland, C. C. 
 & St. L. R. Co. v. Backus, 18 L. R. A. 729, which holds state tax on railroad 
 track within state and proportionate part of its rolling stock not tax on inter- 
 state commerce. 
 
 Cited in note (29 L. R. A. 71) on jurisdiction as to taxation of bridge over 
 river forming boundary of state or its divisions. 
 
 Overruled in Chicago, B. & Q. R. Co. v. Richardson County, 61 Neb. 525, 85 
 N. W. 532, holding railroad bridge part of its continuous line, taxable by state 
 board only. 
 Statute of limitations on note depending on bridge completion. 
 
 Cited in Garner v. Hall, 122 Ala. 230, 25 So. 187, holding bridge not com- 
 pleted, so that statute of limitations ran against note depending upon completion 
 of railroad. 
 What included in roadbed of railroad. 
 
 Cited in Standard Ins. Co. v. Langston, 60 Ark. 386, 30 S. W. 427, holding 
 roadbed, in an accident insurance policy, does not include ends of ties of unusual 
 length; Skiles v. St. Louis, I. M. & S. R. Co. 130 Mo. App. 168, 108 S. W. 1082, 
 holding it does not include track and ties. 
 
 Distinguished in Board of Equalization v. Louisville & X. R. Co. 139 Ky. 393, 
 109 S. W. 303, holding railroad bridge "railroad property" within tax act, 
 though also used by street cars, teams and pedestrians. 
 
2 L.R.A. 188] L. R. A. CASES AS AUTHORITIES. 250 
 
 Obstruction to navigation. 
 
 Cited in note (59 L. R. A. 36) on right to obstruct or destroy rights of navi- 
 gation. 
 
 2 L. R. A. 192, MUIILMAN v. UNION P. R. CO. 37 Fed. 189. 
 \VIio tire fellow servants. 
 
 Cited in Borgman v. Omaha & St. L. R. Co. 41 Fed. 668, holding foreman in 
 charge of, and having entire control of, all wrecking gangs, vice principal; Brown 
 v. Pennsylvania R. Co. 142 Fed. 910, holding allegation of negligent running of 
 engine into line of cars on which plaintiff was working without allegation of 
 who committed negligent act, insufficient. 
 
 Cited in footnotes to St. Louis, I. M. & S. R. Co. v. Rice, 4 L. R. A. 173, which 
 holds yard inspector and yard foreman fellow servants; Fagundes v. Central 
 Pacific R. Co. 3 L. R. A. 824, which holds laborer removing snow from track 
 fellow servant of track walker and conductor; Elliot v. Chicago, M. & St. P. 
 E. Co. 3 L. R. A. 363, which holds section foreman and freight conductor fellow 
 servants; Louisville & N. R. Co. v. Martin, 3 L. R. A. 282, which holds brakeman 
 fellow servant of engineer; Daniel v. Chesapeake & O. R. Co. 16 L. R. A. 383, 
 which holds conductor and brakeman on different trains not fellow servants ; 
 Fisher v. Oregon Short Line & U. N. R. Co. 16 L. R. A. 519. which holds section 
 foreman and conductor not fellow servants; Palmer v. Michigan C. R. Co. 17 
 L. R. A. 637, which holds assistant road master not fellow servant of gang of 
 men working under him; Clarke v. Pennsylvania Co. 17 L. R. A. 811. which holds 
 section boss of one gang and member of another gang fellow servants; Baltimore 
 & 0. R. Co. v. Andrews, 17 L. R. A. 190, which holds conductor and engineer 
 fellow servants of brakeman on other train. , 
 
 Cited in notes (4 L. R, A. 795) on master and servant; fellow servants, who are ; 
 (7 L. R. A. 503) on master liable for acts of agent or representative; (51 L. T!. 
 A. 576) on limits of departmental control in vice principalship considered with 
 reference to the superior rank of a negligent servant; (8 L. R. A. 818) on vice 
 principals and agents; (6 L. R. A. 585) on employee not assuming risk of master 1 - 
 representative; (3 L. R. A. 560) on master not liable for negligence of fellow 
 servant; (4 L. R. A. 852) on liability of master in case of contributing agencies. 
 
 2 L. R. A. 193, Re PIFFARD, 111 N. Y. 410, 18 N. E. 718. 
 Power of appointment In will. 
 
 Cited in Condit v. De Hart, 62 N. J. L. 81, 40 Atl. 776, holding will of ?on with 
 power of appointment should be referred to in carrying out father's will. 
 Parts of -will wy reference. 
 
 Cited in Schillinger v. Bawek, 135 Iowa, 138, 112 N. W. 210, holding testa- 
 mentary deeds, properly executed and duly witnessed and so far referred to in 
 will as to make them part and parcel thereof, form part of will. 
 
 2 L. R. A. 195, RAILROAD COMRS. v. OREGON R. & NAV. CO. 17 Or. 65. 
 
 19 Pac. 702. 
 Governmental regulation of railroads. 
 
 Cited in State v. Rogers, 22 Or. 357, 30 Pac. 74, holding indictment under 
 railroad rate act quashed by repeal of act during pendency of prosecution; Gulf 
 & Ship Island R. Co. v. Mississippi R. Commission, 94 Miss. 135, 49 So. 118, 
 denying power of commission to compel railroads to stop trains at intersection 
 of another road, not within limits of city, at which intersection it had no depot, 
 under statute authorizing compulsion of stops within city at points other than 
 at depots, where convenience of passengers required; State ex rel. La Follette 
 
251 L. R. A. CASES AS AUTHORITIES. 2 L.R.A. 203 
 
 v. Chicago, M. & St. P. R. Co. 16 S. D. 524, 94 N. W. 406, holding order by railroad 
 commissioners, under statute providing for compulsory connection of tracks by 
 intersecting roads on commissioners' order, that certain roads so unite and 
 connect tracks as to permit transfer of cars from one road to another too indefi- 
 nite to be enforced by mandamus. 
 
 Cited in footnote to State ex rel. Tompkins v. Chicago, St. P. M. & 0. R. Co. 
 47 L. R. A. 569, which sustains railroad commissioner's authority to require 
 tuilding of depot. 
 
 2 L. R. A. 199, PITTSBURG, C. & ST. L. R. CO. v. BOSWORTH, 46 Ohio St. 81, 
 
 18 N. E. 533. 
 It iuliiN rii 11 ii i 111; with land. 
 
 Cited in Jones Fertilizing Co. v. Chicago, C. C. & St. L. R. Co. 7 Ohio N. P. 
 251, holding right to crossing, in agreement with railroad, runs with land; 
 American Strawboard Co. v. Haldeman Paper Co. 27 C. C. A. 640, 54 U. S. App. 
 416, 83 Fed. 624, holding restriction on use of leased land for a particular busi- 
 ness attaches to and runs with leasehold; Sexauer v. Wilson, 136 Iowa, 363, 
 14 L.R.A.(N.S.) 193, 113 X. W. 941, 15 A. & E. Ann. Cas. 54, holding covenant 
 to maintain division fence may appropriately be subject of covenant running with 
 land. 
 
 Cited in footnotes to Mott v. Oppenheimer, 17 L. R. A. 409, which construes 
 as running with the land agreement for party wall, expressly declared to run 
 with land; Mygatt v. Coe, 11 L. R. A. 646, which holds covenants of warranty 
 and quiet enjoyment by owner and husband do not run with land as against 
 husband; Bald Eagle Valley R. Co. v. Nittany Valley R. Co. 29 L. R. A. 423, 
 -which holds intention of parties controlling in determining whether covenant 
 runs with land; Brown v. Southern P. Co. 47 L. B. A. 409, which holds cove- 
 nant by grantors for railroad to build fences or not hold company for injury to 
 stock personal only. 
 
 Cited in note (14 L.R.A. (X.S.) 187) on necessity of word "assigns" to make 
 covenant as to thing not in esse run with land. 
 Constructive notice. 
 
 Cited in Kuebler v. Cleveland Short Line R. Co. 10 Ohio N. P. X. S. 389, 20 
 Ohio S. & C. P. Dec. 525, holding that restrictive covenant appearing in chain 
 of title is constructive notice of such restriction. 
 
 Cited in footnotes to Rock Island & P. R. Co. v. Dimick, 19 L. R. A. 105, which 
 holds open and exclusive possession of passageway through railroad embankment 
 notice of rights to purchaser of railroad ; Brinser v. Anderson, 6 L. R. A. 205, 
 which holds purchaser required to inquire into rights of possessor, though he 
 knows of lease to him. 
 
 Cited in notes (8 L.R.A. 211) on title to land; constructive notice by pos- 
 session; (13 L.R.A. (X.S.) 76) on possession of land as notice of title. 
 Enforcement of restrictive covenants. 
 
 Annotation cited in Greensboro Ferry Co. v. Xew Geneva Ferry Co. 34 Pa. Co. 
 Ct. 37, on jurisdiction of court of equity to restrain breach of covenant. 
 
 2 L. E. A. 203, WARREX v. BOARD OF REGISTRATION, 72 Mich. 398, 40 
 
 N. W. 553. 
 Effect of residence on elective franchise. 
 
 Cited in Beecher v. Detroit, 114 Mich. 230, 72 N. W. 206, holding temporary 
 abode not establishment or residence; Powell v. Spackman, 7 Idaho, 717, 54 
 L. R. A. :?>7. 05 Pac. 503 (dissenting opinion), majority holding inmate of 
 .soldiers' home gains no voting residence there; Cover v. Hatten, 136 Iowa, 65, 
 
2 L.R.A. 203] L. K. A. CASES AS AUTHORITIES. 252: 
 
 113 N. W. 470, holding where one has acquired residence, it is presumed to- 
 continue until he acquires another. 
 
 Cited in notes (23 L. R. A. 216) on acquiring residence as a voter while attend- 
 ing school or public institution; (12 L. R. A. 364) on state citizenship. 
 
 Distinguished in Wolcott v. Holcomb, 97 Mich. 368, 23 L. R. A. 219, 56 N. W. 
 837, holding residence of elector not changed by presence and support in soldiers' 
 home; State v. Savre, 129 Iowa, 128, 3 L.R.A. (N.S.) 458, 113 Am. St. Rep. 452 r 
 105 N. W. 387, holding under statute place where voter rooms and sleeps is his- 
 residence. 
 Schools. 
 
 Cited in note (13 L. R. A. 162) on domicil as affecting common- school priv- 
 ileges. 
 
 Registration. 
 
 Cited in notes (7 L. R. A. 99) on rights of voters to be registered for elections; 
 (10 L. R. A. 226) on election law; registration. 
 Kffect of absence on rights acquired by residence. 
 
 Cited in Humphrey v. Humphrey, 115 Mo. App. 364, 91 S. W. 405, holding- 
 mere temporary absence from city where home is established, without intention 
 to make home elsewhere, did not preclude right to maintain divorce action. 
 Impeachment of law by legislative journals. 
 
 Cited in Ritchie v. Richards, 14 Utah, 353, 47 Pac. 670, holding enrolled bill 
 duly signed, approved, and deposited unimpeachable. 
 Usage and custom. . 
 
 Cited in note (13 L. R. A. 438) on custon and usage as law. 
 
 2 L. R. A. 206, LORSCHER v.. SUPREME LODGE, K. OF H. 72 Mich. 316, 40 
 
 N. W. 545. 
 Proof of death. 
 
 Cited in National Union v. Thomas, 10 App. D. C. 289, holding beneficiary 
 under no obligation to see that death report required by insurance association 
 is made. 
 Contract of insurance. 
 
 Cited in Wagner v. Supreme Lodge, K. & L. of H. 128 Mich. 668, 87 N. W. 903, 
 holding delivery of benefit certificate to subordinate lodge completes the contract; 
 Wood v. Brotherhood of American Yeomen, 148 Iowa, 405, 126 X. W. 949, hold- 
 ing change of beneficiaries effected by delivery of new certificate to local lodge ; 
 Lathrop v. Modern Woodmen, 56 Or. 449, 109 Pac. 81, holding that delivery by 
 head camp of certificate to local camp clerk is not delivery to applicant, where 
 by-law provides that certificate shall not become effective until delivered by 
 camp clerk to applicant; Sterling v. Woodmen of the World, 28 Utah, 520, 80 
 Pac. 375, holding contract not complete by delivery to local lodge where con- 
 stitution and application provide policy not to become operative until delivery 
 to applicant, 'preceded by signature of applicant and local head officer; Knights 
 of Machabees v. Gordon, 83 Ark. 22, 102 S. W. 711, holding parol contract valid 
 where agreement has been completed with exception of issuance of certificate or 
 policy. 
 
 Cited in footnotes to McLendon v. Sovereign Camp of Woodmen, 52 L. R. A. 
 444, which holds reasonable delay in delivering benefit certificate gives no right 
 to recover on certificate delivered after death of insured; Hicks v. British America 
 Assur. Co. 48 L. R. A. 424, which holds rights of one whose property destroyed 
 after oral contract to insure it, but before policy issued, subject to provisions 
 
253 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 217 
 
 of standard policy prescribed by law; Summers v. Mutual Life Ins. Co. 66 L.R.A. 
 812, which holds contract for present insurance not made by applicant giving 
 note for first premium in consideration that a policy shall be issued where his 
 examination is to be made in future and he expressly stipulates that note shall 
 not be negotiated until policy has been delivered and accepted. 
 
 Cited in notes (9 L. R. A. 189) on forfeiture of benefit certificate for nonpay- 
 ment of assessment; (8 L.R.A. 114) on contract of mutual benefit association; 
 (52 Am. St. Rep. 545, 564) on mutual membership life or accident insurance. 
 Admission of execution of policy. 
 
 Cited in Grimme v. General Council, 167 Mich. 248, 132 X. W. 497, holding that 
 no proof of execution of certificate of insurance attached to plaintiff's declaration 
 is necessary, where its execution is not denied. 
 
 2 L. R. A. 212, LOUISVILLE ASPHALT VARNISH CO. v. LORICK," 29 S. C. 
 
 533, 8 S. E. 8. 
 Written evidence of contract. 
 
 Cited in Atlantic Phosphate Co. v. Sullivan, 34 S. C. 309, 13 S. E. 539, holding 
 terms of a contract may be contained in several instruments of writing; Freeland 
 v. Ritz, 154 Mass. 259, 12 L. R. A. 561. 26 Am. St. Rep. 244, 28 X. E. 226, hold- 
 ing parol evidence admissible to identify paper relating to contract; Colleton 
 Realty Co. v. Folk, 85 S. C. 88, 67 S. E. 156, holding that contract may be proved 
 by letter of party to be charged in which he recites contract and repudiates it. 
 Sufficiency of memorandum under statute of frauds. 
 
 Cited in Melchers v. Springs, 33 S. C. 282, 11 S. E. 788, holding private letter 
 of agent to principal forwarding order not sufficient to bind principal. 
 
 Cited in footnotes to Freeland v. Ritz, 12 L. R. A. 561, which holds series of 
 papers, only one of which signed, may constitute memorandum ; White v. Breen, 
 32 L. R. A. 127, which authorizes reading different writings together as constituent 
 parts of memorandum; Charlton v. Columbia Real Estate Co. 69 L.R.A. 394, 
 which holds statute of frauds satisfied by previous memorandum of agreement 
 for lease and a signed but undelivered lease which taken together show a com- 
 pleted agreement upon the terms of a lease. 
 
 Cited in notes (11 L.R.A. 143) on defective memorandum of contract; (6 Eng. 
 Rul. Cas. 254) on requisites of memorandum required by statute of frauds. 
 
 2 L. R. A. 217, LEROY & W. R. CO. v. ROSS, 40 Kan. 598, 20 Pac. 197. 
 
 Followed without discussion in Kansas City & S. W. R. Co. v. Baird, 41 Kan. 
 71, 21 Pac. 227. 
 Condemnation. 
 
 Cited in footnote to Jacksonville, T. & K. W. R. Co. v. Adams, 14 L. R. A. 533, 
 which authorizes condemnation of land irregularly entered upon. 
 
 Cited in note (19 Am. St. Rep. 459, 460) on condemnation of right of way 
 for railroad. 
 Full compensation. 
 
 Cited in Florence, E. D. & W. Valley R. Co. v. Shepherd, 50 Kan. 440, 31 Pac. 
 1002; Chicago, K. & W. R. Co. v. Woodward, 47 Kan. 193, 27 Pac. 836; Kansas 
 C. R. Co. v. Jackson County, 45 Kan. 719, 26 Pac. 394; Chicago, K. & W. R. Co. 
 v. Emery, 51 Kan. 18, 32 Pac. 631; Inter-State Consol. Rapid Transit R. Co. 
 v. Simpson, 45 Kan. 715, 26 Pac. 393, holding owner's damages for right of 
 way cannot be diminished by benefits. 
 
 Cited in footnotes to Schroeder v. Joliet, 52 L. R. A. 634, which authorizes con- 
 sideration of benefit from improvement in assessing damages from cutting down 
 
2 L.R.A. 217] L. R. A. CASES AS AUTHORITIES. 254 
 
 street; Beveridge v. Lewis, 59 L. R. A. 581. which denies right to deduct benefits 
 from damages in exercise of eminent domain by individual. 
 
 Cited in note (9 L.R.A.(X.S.) 831) on right to set off benefits against damages 
 on condemnation. 
 Testimony as to value of, or injury to, land. 
 
 Cited in Ottawa, O. C. & C. G. R. Co. v. Fisher, 42 Kan. 678, 22 Pao. 713, 
 holding farmers in vicinity of farm, unacquainted with its market or productive 
 value, incompetent to testify as to depreciation ; Kansas City & S. W. R. Co. 
 v. Ehret, 41 Kan. 26, 20 Pac. 538, holding farmers residing in vicinity of and 
 acquainted with particular farm may give opinions as to its value; Ottawa, 
 O. C. & C. G. R, Co. v. Adolph, 41 Kan. 602. 21 Pac. 643, holding improper to 
 give estimate of amount of damage to pasture and corrals injured, but not 
 destroyed, by right of way for railroads. 
 
 Cited in note (3 L. R. A. 83) on evidence of value of land taken in condemna- 
 tion proceedings. 
 Damage front fire. 
 
 Cited in Kay v. Glade Creek & R. R. Co. 47 W. Va. 475, 35 S. E. 973, holding 
 danger, to affect damages, must be real and imminent. 
 Measure of damages. 
 
 Cited in Chicago, K. & W. R. Co. v. Brunson, 43 Kan. 374, 23 Pac. 495, holding 
 erroneously received testimony as to amount of damage per acre harmless, being 
 unobjected to as to competency; Leavenworth, X. & S. R. Co. v. Herley, 45 Ivan. 
 536, 26 Pac. 23, discussing, but not deciding, whether witness can testify directly 
 as to amount of damages sustained; Chicago, K. & W. R. Co. v. Parsons, 51 Kan. 
 413, 32 Pac. 1083, holding measure of damages difference in value of land before 
 and after taking right of w r ay; Atchison, T. & S. F. R. Co. v. Wilkinson, 55 Kan. 
 85, 39 Pac. 1043, holding witness may not state his opinion as to damages to be 
 recovered. 
 
 Cited in footnotes to Cameron v. Pittsburgh & L. E. R. Co. 22 L. R. A. 443, 
 which holds farm not divided for estimation of damages from construction of rail- 
 road \)j previous condemnation of strip for canal ; Becker v. Philadelphia & R. 
 Terminal R. Co. 35 L. R. A. 583, which holds diminution in profits and value of 
 merchandise by removal of business from condemnation of land not element 
 of damages. 
 
 Cited 'in note (11 L. R. A. 605) on market price as an element of damages in 
 condemnation proceedings. 
 
 2 L. R. A. 223, COM. ex rel. KEELY v. PERKINS, 124 Pa. 36, 16 Atl. 525, 528. 
 Contempt of court. 
 
 Cited in Re Garis, 185 Pa. 501, 39 Atl 1110. holding contempt proceedings 
 rest upon the necessity of maintaining dignity and authority of courts; Com. v. 
 Green, 185 Pa. 647; 40 Atl. 96, approving practice of granting special writ of 
 certiorari ancillary to habeas corpus in proper cases; Tolman v. Leonard, 6 
 App. D. C. 235, holding jurisdictional facts need not be shown in commitment, 
 if disclosed in record; Jack v. Twyford, 10 Pa. Super. Ct. 481, holding court's 
 order to defendant to restore frame dwelling enforceable by attachment; Leslie 
 v. Mahoning R. Co. 22 Pa. Co. Ct. 301, holding court of equity, having jurisdic- 
 tion, can enforce by attachment its lawful orders; Com. ex rel. Thornley v. 
 Friends' Home for Children, 22 Pa. Co. Ct. 62, 7 Pa. Dist. R. 653, holding it 
 duty of one to whom writ of habeas corpus is issued to produce body of person 
 detained if within his power; State ex rel. Phillips v. District Ct. 98 Minn. 139, 
 107 X. W. 963, upholding court's right to punish for contempt of violating inter- 
 
255 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 22S> 
 
 locutory injunction against trespassing on land and cutting crops thereon, in 
 action for possession of land; State ex rel. Register v. McGahey, 12 N. D. 547, 
 97 N. W. 865, 1 A. & E. Ann. Cas. 650, 14 Am. Grim. Rep. 283, holding resistance 
 to order which court has no jurisdiction to issue not punishable as contempt; 
 Patterson v. Wyoming Valley Dist. Council, 31 Pa. Super. Ct. 119, holding court 
 could commit individual members of unincorporated labor organization until 
 payment of fine imposed against organization ; Patterson v. Building Trades Coun- 
 cil, 31 Pa. Co. Ct. 14, 9 North. Co. Rep. 336, 14 Pa. Dist. R. 842, 12 Luzerne Leg. 
 Reg. Rep. 245, on distinction between contempt proceedings intended to punish 
 offense against public justice and those for purpose of effectuating decree for 
 benefit of private suitor; Re Fleming, 37 Pittsb. L. J. N. S. 210, holding that at- 
 tachment is well recognized means, not of mere punishment for contempt, but of 
 enforcing civil remedies in courts of equity; Com. v. Klein, 40 Pa. Super. Ct. 
 360, on right of court to punish by imprisonment for contempt. 
 
 Cited in notes (8 L.R.A. 588) on contempt of court in presence of court; (1ft 
 L.R.A.(N.S.) 1067) on disobedience of void order as contempt. 
 Protection of witness. 
 
 Cited in note (11 L. R. A. 591) on protection of witness on examination. 
 
 2 L. R. A. 225, RICH v. BRAY, 37 Fed. 273. 
 Equity jurisdiction of Federal courts. 
 
 Cited in Hale v. Tyler, 115 Fed. 838, holding, in cases of fraud, state court 
 administrator may be proceeded against in Federal court; Hagge v. Kansas 
 City S. R. Co. 104 Fed. 393, holding several landowners affected by same nuisance- 
 might unite in action, provided injury to each amounted to the $2.000 limit. 
 
 Cited in note (18 L. R. A. 269) on adoption by Federal courts of remedies, 
 craated by state statutes. 
 Disputed title to real estate. 
 
 Cited in Fuller v. Montague, 8 C. C. A. 105, 16 U. S. App. 391, 59 Fed. 216.. 
 holding Federal chancery courts do not decide questions of controverted real- 
 estate title; American Asso. v. Eastern Kentucky Land Co. 68 Fed. 722, holding 
 Federal court of equity cannot entertain partition suit where plaintiff's title is 
 denied; Elder v. McClaskey, 17 C. C. A. 265, 37 U. S. App. 199, 70 Fed. 543, 
 holding actual notice of ouster not necessary to establish adverse possession ; 
 Heinze v. Butte & B. Consol. Min. Co. 61 C. C. A". 90, 126 Fed. 28, by Ross, J., 
 dissenting, who holds Federal courts cannot try controverted questions of title 
 in partition suit. 
 When partition suit maintainable. 
 
 Cited in Carlson v. Sullivan, 77 C. C. A. 32, 146 Fed. 478, holding it not 
 maintainable on ouster by one tenant in common of co-tenant. 
 
 Cited in note (20 L. R. A. 624, 628) on right of one out of possession to parti- 
 tion. 
 Arrang-ingr parties. 
 
 Cited in Claiborne v. Waddell, 50 Fed. 369, permitting withdrawal of action 
 as to one defendant with interests identical to complainants' so as not to oust 
 court of jurisdiction; Cilley v. Patten, 62 Fed. 500, holding court will arrange 
 parties according to their actual interests on question of jurisdiction. 
 
 2 L. R. A. 229. ERYVIX v. UNITED STATES, 37 Fed. 470. 
 What fees allowable to United States officers. 
 
 Cited in Marvin v. United States, 114 Fed. 227, holding charge for entering 
 in minute book memorandum as to court business and adjournment proper^ 
 
2 L.R.A. 229] L. E. /.. CASES AS AUTHORITIES. 256 
 
 Marvin v. United States, 114 Fed. 227, holding charge for certified copy of mitti- 
 mus allowable; Marsh v. United States, 88 Fed. 888, holding fees for entering 
 orders approving accounts., and for certified copies, certificates, and seals, proper; 
 Puleston v. United States, 85 Fed. 576, holding mileage in removing prisoners 
 under order of court proper; Van Hoorebeke v. United States, 46 Fed. 459, holding 
 presentation of accounts of district attorneys, etc., not condition precedent to 
 action; Taylor v. United States, 45 Fed. 534, holding fees for certificates and 
 seals to copies of orders allowable; Davis v. United States, 45 Fed. 1G3, holding 
 fees disallowed by treasury proper; Marvin v. United States, 44 Fed. 407, 
 stating amount of clerk's fees chargeable upon orders to pay accounts of officers, 
 for administering oaths, and filing vouchers; Goodrich v. United States, 47 
 Fed. 268, holding charge for services of deputy clerk as jury commissioner 
 proper; United States v. King, 147 U. S. 683, 37 L. ed. 330, 13 Sup. Ct. Rep. 
 439, holding charge for making separate reports of mileage fees of jurors and 
 witnesses improper; United States v. Harmon, 147 U. S. 274, 37 L. ed. 167, 
 13 Sup. Ct. Rep. 327, Affirming 43 Fed. 563, holding circuit court has juris- 
 diction over claims disallowed by comptroller of treasury; Goodrich v. United 
 States, 42 Fed. 395, holding costs of attachment proceedings chargeable to 
 United States; Goodrich v. United States, 42 Fed. 394, holding clerk's fees for 
 entering orders, etc., chargeable to United States; Jones v. United States, 39 
 Fed. 414, holding clerk of district court entitled to fees; United States v. Warren, 
 12 Okla. 360, 71 Pac. 685, holding clerk of territorial district court entitled to 
 statutory compensation for each day court was actually in session, whether 
 business was transacted or not. 
 Common-law procedure in United States courts. 
 
 Cited in Howard v. United States, 75 Fed. 991, 34 L. R. A. 514, holding United 
 States courts governed by rules of common law in imposing cumulative sen- 
 tences; Withaup v. United States, 62 C. C. A. 328, 127 Fed. 534, raising, without 
 determining question, whether, in absence of Federal statute or established rules 
 of evidence in state when admitted, common-law rules of evidence would govern 
 United States courts. 
 Necessity of formal commitment to render imprisonment valid. 
 
 Cited in note (38 L.R.A.(N.S.) 611) on necessity of formal commitment to 
 render imprisonment valid. 
 
 2 L. R. A. 242, FLOYD v. PERRIN, 30 S. C. 1, 8 S. E. 14. 
 Township bonds. 
 
 Cited in Hicks v. Cleveland, 45 C. C. A. 435, 106 Fed. 465, holding mandamus 
 will lie to compel levy of tax to pay judgment recovered by holder of township 
 bonds; Massachusetts & S. Const. Co. v. Cherokee Twp. 42 Fed. 752, holding 
 bonds of township for railroad construction, held by trustee, should be delivered 
 to owners; Massachusetts & S. Const. Co. v. Cane Creek Twp. 45 Fed. 336, holding 
 bonds for railroad construction cannot be issued to an amount exceeding consti- 
 tutional limit; Granniss v. Cherokee Twp. 47 Fed. 428, holding coupons on town- 
 ship bonds issued for construction of railroad prior to completion, invalid, and all 
 subsequent thereto valid; Finance Co. v. Charleston, C. & C. R. Co. 52 Fed. 679, 
 holding lawyers cannot recover for gratuitous services in obtaining legislation 
 validating township bonds; Jack v. Williams, 113 Fed. 825, holding purchaser 
 of railroad constructed on township bonds, whose franchise had been revoked 
 by legislation, might remove rails; State ex rel. Charleston, C. & C. R. Co. v 
 Whitesides, 30 S. C. 583, 3 L. R. A. 777, 9 S. E. 661, holding mandamus will lie 
 to compel county officer to indorse certificate of construction engineer authorizing 
 issue of township bonds; Holstein v. Edgefield County, 64 S. C. 382, 42 S. E. 180, 
 
257 L, R. A. CASES AS AUTHORITIES. [2 L.RJL 252 
 
 denying injunction against payment of railroad-aid bonds, adjudged legal by 
 Federal court, contrary to determination of state courts. 
 
 Distinguished in Allen v. Adams. 66 S. C. 356, 44 S. E. 938, holding incorporated 
 town may issue bonds for school building. 
 
 Limited in Darlington v. Atlantic Trust Co. 16 C. C. A. 33, 25 U. S. App. 354, 
 68 Fed. 855, holding town bonds issued in construction of railway valid; State 
 ex rel. Dickenson v. Xeely, 30 S. C. 603, 3 L. R. A. 678, 9 S. E. 664, holding legis- 
 lature may levy tax to aid in construction of railroad upon assent of territory 
 to be taxed. 
 
 Disapproved in Pickens Twp. v. Post, 41 C. C. A. 3, 99 Fed. 661, holding owner 
 of township bonds a bona fide holder. 
 
 Overruled in Folsom v. Township Ninety Six, 159 U. S. 622, 40 L. ed. 282, 16 
 Sup. Ct. Rep. 174, holding township bonds issued in construction of railroad 
 valid; Smith v. Walker, 74 S. C. 526, 54 S. E. 779, by reason of contrary 
 ruling of United States court, holding a legislative act providing that the 
 coporation of certain townships should be abolished is void as against bonded 
 debts previously created by them. 
 
 Cited as overruled in Ex parte Folsom, 131 Fed. 497, holding a constitutional 
 amendment abolishing certain townships was objectionable to the Federal con- 
 stitution in so far as it impaired the obligation of contracts previously entered 
 into by the township. 
 Craiit of corporate powers. 
 
 Cited in Folsom v. Township Ninety Six, 159 U. S. 628, 40 L. ed. 284, 16 Sup. 
 Ct. Rep. 174, holding legislature might grant corporate powers to cities, counties, 
 towns, and townships; Congaree Constr. Co. v. Columbia Twp. 49 S. C. 537, 27 
 S. E. 570, holding statute authorizing townships to subscribe to stock of rail- 
 roads, and making them corporations for that purpose, invalid; White v. Rock 
 Hill, 34 S. C. 245, 13 S. E. 416, holding license tax cannot be collected from one 
 not shown to intend to engage in business for shorter period than one year. 
 
 Cited in footnote to Dell Rapids v. Irving, 29 L. R. A. 861, which holds town- 
 ship organized under state law not a ^municipal corporation." 
 Exercise by corporation of Incidental powers. 
 
 Cited in General Conference v. Berkey, 156 Cal. 470, 105 Pac. 411, holding a 
 single sale of land by a foreign corporation organized for religious, educational 
 and charitable purposes, with power to acquire and sell property in subordination 
 to such purpose was not such a transaction of business by a foreign corporation 
 as to require the authorization of the court. 
 Title of act. 
 
 Cited in Buist v. Charleston, 77 S. C. 272, 57 S. E. 862, holding an act auth- 
 orizing a city counsel to issue coupon bonds to pay present bonded indebtedness 
 .bout to mature was not objectionable to provision of the constitution pro- 
 viding that every act shall relate to but one subject and that shall be expressed in 
 the title; Jellice v. State Election Comrs. 83 S. C. 488, 65 S. E. 725, holding 
 provisions of act as to elections in counties in which dispensaries were recently 
 in operation were germane to an act the subject of which was the prohibition of 
 the sale of intoxicating liquors. 
 
 Cited in notes (2 L.R.A. 789) on title of statute must fairly suggest subjects 
 dealt with in the acts; (64 Am. St. Rep. 103) on sufficiency of title of statute. 
 
 2 L.R.A. 252, PALMER v. PENNSYLVANIA CO. Ill N. Y. 488, 18 N. E. 859. 
 I>e;ree of care required of carrier to prevent Injury from accident. 
 
 Cited in Palmer v. Delaware & H. Canal Co. 120 N. Y. 177, 17 Am. St. Rep. 
 L.R.A. Au. Vol. I. 17. 
 
2 L.R.A. 252] L. R. A. CASES AS AUTHORITIES. 258 
 
 G29. 24 X. E. 302, holding carrier must use utmost care and diligence to prevent 
 defects in operative machinery, appliances, and apparatus; Gulf, C. & S. F. R. 
 Co. v. Shields, 9 Tex. Civ. App. 656, 28 S. W. 709, and Jensen v. Hamburg-Amer- 
 ican Packet Co. 23 App. Div. 167, 48 N. Y. Supp. 630, holding rule as to highest 
 care applies only to appliances and machinery; Illinois C. R. Co. v. Kuhn, 107 
 Tenn. Ill, 64 S. W. 202, holding rule as to highest care applies to operative 
 machinery and appliances, roadbed, and tracks; Kelly v. Manhattan R. Co. 112 
 N. Y. 451, 3 L. R. A. 76, 20 X. E. 383, holding less degree of care required as to 
 approaches to cars than in regard to roadbed, machinery, or car construction; 
 Conroy v. Chicago, St. P. M. & 0. R. Co. 96 Wis. 256. 38 L. R. A. 423, 70 X. W. 
 486, holding carrier not bound to use highest degree of care to prevent passenger 
 awaiting train from exposure to danger; Buck v. Manhattan R. Co. 15 Daly. 552. 
 10 N. Y. Supp. 107, holding carrier only bound to use reasonable care to prevent 
 injury to passenger getting on or off vehicles : McKeon v. Chicago. M. & St. P. 
 R. Co. 94 Wis. 485, 35 L. R. A. 257, 59 Am. St. Rep. 909, 69 X. W. 175. holding 
 wrongful instruction as to degree of care required of carrier harmless, when no 
 care was shown; Dochtermann v. Brooklyn Heights R. Co. 32 App. Div. 21. 52 
 N. Y. Supp. 1051 (dissenting opinion), majority holding question for jury whether 
 car was negligently started before passenger had taken seat; McCarty v. St. 
 Louis & S. R. Co. 105 Mo. App. 604, 80 S. W. 7, on railroad as owing only the 
 exercise of ordinary care to one not a passenger not to inflict injury upon him: 
 Stappers v. Interburban Street R. Co. 56 Misc. 339, 106 X. Y. Supp. 854, on the 
 highest degree of care as being required of railroad company to see that ma- 
 chinery and appliances are in a safe condition. 
 
 Cited in notes (42 L. ed. U. S. 493) on duty to protect persons about to take 
 train; (5 Eng. Rul. Cas. 462, 463) on extent of duty to secure safety of passen- 
 gers. 
 
 Distinguished in Cobb v. Lindell R. Co. 149 Mo. 151, 50 S. W. 310, holding 
 highest degree of care applies to service, as well as construction and equipment. 
 Slippery or defective approaches, platforms, car steps, etc. 
 
 Cited in Pittsburgh, C. C. & St. L. R. Co. v. Aldridge, 27 Ind. App. 500. 61 
 X. E. 741, holding carrier not responsible for injury from snow on car steps. 
 without reasonable opportunity to remove; Oilman v. Boston & M. R. Co. 168 
 Mass. 455. 47 X. E. 193, upholding finding of jury that carrier was negligent 
 in not properly clearing car steps of ice and snow; Proud v. Philadelphia & R. 
 R. Co. 64 N. J. L. 707, 50 L. R. A. 470, 46 Atl. 710, holding carrier not bound 
 to know at each moment the condition of every part of the train: Pittsburgh, C. 
 C. &,St. L. R. Co. v. Harris, 38 Ind. App. 79, 77 N. E. 1051, holding only the 
 exercise of ordinary care Was required of railroads in keeping their platforms 
 and approaches in a safe condition for passengers; Vancleve v. St. Louis, M. &. S. 
 E. R. Co. ]07 Mo. App. 103, 80 S. W. 706, holding railroad company was not 
 liable to passenger injured while alighting from train b\ reason of the muddy con- 
 dition of the steps such condition arising after train was en route and caused 
 by passengers boarding train ; Pittsburgh, C. C. & St. L. R. Co. v. Rose, 40 Ind. 
 App. 253, 79 X. E. 1094, holding defendant company was not liable to a 
 passenger injured by slipping on a banana peeling thrown by a third party on 
 the steps of the car shortly before accident without defendants' knowledge; Mc- 
 Cormick v. Sydney & G. B. R. Co. 37 X. S. 257; Riley v. Rhode Island Co. 29 
 R. I. 145, 15 L.R.A.(X.S.) 524, 69 Atl. 338, 17 A. & E. Ann. Cas. 50, holding 
 defendant company was not liable where plaintiff injured by slipping on the 
 snow and ice on steps of car, which had been deposited there by passengers follow- 
 ing a storm of snow and rain: Stanford v. Chester Traction Co. 11 Del. Co. Rep. 
 244, holding carrier not liable for injury to passenger from slipping on banana 
 
259 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 255 
 
 peel in aisle, in absence of evidence that it was put there by employees, or that 
 they had actual or constructive notice of it. 
 
 Cited in footnote to Proud v. Philadelphia & R. R. Co. 50 L. R. A. 468, which 
 denies liability for injury by slipping on filth on car step in nighttime, withjn 
 half hour after car inspected. 
 
 Cited in notes (3 L.R.A. 74) on duty of railroads, as carriers, to furnish safe 
 approaches, platforms, etc.; (15 L.R.A.(N.S.) 523) on duty of carrier of pas- 
 sengers to keep car steps free from snow and ice. 
 Street railway companies. 
 
 Cited in Stierle v. Union R. Co. 156 N. Y. 73, 50 N. E. 419, holding street car 
 company not bound to exercise highest degree of care and skill in switching; 
 Leyh v. Xewburgh Electric R. Co. 41 App. Div. 220, 58 N. Y. Supp. 479, holding 
 electric railway company not bound to use highest care in respect to curtain 
 rods. 
 
 Distinguished in Stierle v. Union R. Co. 13 Misc. 134, 34 N. Y. Supp. 185, 
 holding rule as to highest degree of care and skill inapplicable to operation of 
 street horse cars. 
 Steamship companies. 
 
 Cited in Bruswitz v. Netherlands American Steam Nav. Co. 64 Hun, 266, 19 
 X. Y. Supp. 75, holding steamship company not bound to exercise highest care 
 to prevent passenger from tripping on floor sockets in rolling sea; Ganguzza v. 
 Anchor Line, 97 App. Div. 353, 89 N. Y. Supp. 1049, holding defendant company 
 was not liable for an injury to plaintiff by the parting of a wire rope used to 
 hoist ashes while plaintiff was standing in a doorway leading from the steerage 
 to crew's quarters, watching the operations. 
 Act of God as defense. 
 
 Cited in note (11 L. R. A. 616) on act of God as defense for loss by carrier. 
 Duty to remove snovr and Ice. 
 
 Cited in Harkin v. Crumbie, 20 Misc. 570, 46 X. Y. Supp. 453, holding apart- 
 ment owner only required to remove ice from courtyard within reasonable time. 
 Carrier's liability as to passenger riding: on platform. 
 
 Cited in Cincinnati, L. & A. Electric Street R. Co. v. Lohe, 68 Ohio St. Ill, 67 
 N. E. 161, holding passenger injured while voluntarily riding on platform of inter- 
 urban electric car, cannot recover damages. 
 Contributory negligence in going on car platform. 
 
 Cited in Hanrahan v. Manhattan R. Co. 53 Hun, 424, 6 N. Y. Supp. 395, holding 
 passenger guilty of contributory negligence in stumbling on station platform 
 known to her to have been higher than car platform. 
 
 2 L. R. A. 255, PEOPLE v. O'BRIEN, 111 N. Y. 1, 7 Am. St. Rep. 684, 18 N. 
 
 E. 692. 
 Xatnre of rigbt created by corporate franchise Railroads. 
 
 Cited in Ingersoll v. Nassau Electric R. Co. 157 N. Y. 463, 43 L, R. A. 239, 
 52 X. E. 545; Coney Island, Ft. H. & B. R. Co. v. Kennedy, 15 App. Div. 591, 
 44 X. Y. Supp. 825; Pape v. New York & H. R. Co. 74 App. Div. 189, 77 X. Y. 
 Supp. 725 (concurring opinion) ; Roddy v. Brooklyn City & X. R. Co. 32 App. Div. 
 314. 52 N. Y. Supp. 1025, holding franchise to construct and operate street rail- 
 way is property; Herzog v. New York Elev. R. Co. 37 N. Y. S. R. 569, 14 N. Y. 
 Supp. 290. 59 X. Y. S. R. 343, holding grant of right to use streets for elevated 
 railway gives grantee estate in street; Southern Boulevard R. Co. v. Xorth New 
 York City Traction Co. 16 Misc. 271, 39 X. Y. Supp. 266, holding railway fran- 
 chise is in nature of easement in public highway; Syracuse Water Co. v. Syracuse, 
 
2 L.R.A. 255] L. R. A. CASES AS AUTHORITIES. 260 
 
 116 N. Y. 182, 5 L. R. A. 552, 22 X. E. 381, holding corporate rights and means 
 of exercising them constitute single body, consisting of property, corporeal and 
 incorporeal; Africa v. Knoxville, 70 Fed. 734. 737. and Mercantile Trust & De- 
 posit Co. v. Collins Park & B. R. Co. 101 Fed. 350, holding privileges in streets 
 granted street railway company constitute contract, which cannot be impaired; 
 Mason v. Ohio River R. Co. 51 W. Va. 187, 41 S. E. 418, holding municipal grant, 
 accepted by railroad, of right to use street, a binding contract; Detroit Citizens' 
 Street R. Co. v. Detroit, 26 L. R. A. 673, 12 C. C. A. 370, 22 U. S. App. 570, 64 
 Ped. 634, Reversing 56 Fed. 883, holding street railway company capable of taking 
 franchise for term beyond corporate life is not restricted by charter; Parker v. 
 Elmira, C. & N. R. Co. 165 N. Y. 280, 59 N. E. 81, holding right of railroad, under 
 statute, to charge fare at rate of 4 cents per mile, property entitled to protection; 
 Rochester v. Rochester R. Co. 182 N. Y. 124, 70 L.R.A. 784, 74 N. E. 953 (dis- 
 senting opinion), on no right existing to recall or modify a contract with a cor- 
 poration which exempted such corporation from burdens of specific municipal ex- 
 penses; Knickerbocker Trust Co. v. Tarrytown, W. P. & M. R. Co. 139 App. Div. 
 308, 123 N. Y. Supp. 954, holding that street railroad franchise in property 
 that may survive railroad owning it; People ex rel. Hudson & M. R. Co. v. State 
 Tax Bd. of Comrs. 203 N. Y. 125, 96 N. E. 435, holding street railroad franchise 
 taxable, though railroad is engaged in interstate commerce; People ex rel. 
 Bryan v. State Tax Comrs. 142 App. Div. 799, 127 N. Y. Supp. 858, holding that 
 railroad tunnel under river is subject to special franchise tax; People ex rel. 
 Third Ave. R. Co. v. Public Service Commission, 203 N. Y. 308, 96 X. E. 1011, 
 holding provisions of public service commissions law, requiring approval of com- 
 mission to exercise at transfer of franchise, inapplicable to reorganized street 
 railway. 
 
 Cited in footnote to Belleville v. Citizens' Horse R. Co. 26 L.R.A. 6S1, which 
 holds consent to use streets for tracks of railway company is mere license. 
 
 Cited hi notes (5 L. R. A. 371 ; 8 L. R. A. 453) on right of railroad to construct 
 and operate line on street; (4 L. R. A. 624) on use of public streets for horse 
 railroads; (8 L. R. A. 539)' on electric railways in city streets; (9 L. R. A. 
 101) on use of streets in municipalities; (50 L. R. A. 143) on privilege of using 
 streets as a contract, within constitutional provision against impairing obligation 
 of contracts; (66 L.R.A. 36) on nature of railroad franchise as realty or per- 
 sonalty. 
 
 Distinguished in Re Toronto Street R. Co. 22 Ont. Rep. 400, holding where a 
 right was reserved to terminate a franchise, such franchise could not be considered 
 as property to be valued in arriving at the valuation of the railroad when taken 
 over by the city. 
 Water companies. 
 
 Cited in Re Long Island Water Supply Co. 30 Abb. N. C. 52, 24 N. Y. Supp. 
 !813, holding company organized under general statute exists by virtue of con- 
 tract with town, and has exclusive franchise for full term of charter; Skaneateles 
 Waterworks Co. v. Skaneateles, 161 N. Y. 167, 46 L. R. A. 691, 55 X. E. 562, 
 holding reserved right to grant franchise to another corporation not authority 
 for invasion of that first granted; lie Water Comrs. 71 App. Div. 552, 554. 7(3 
 N. Y. Supp. 11, holding franchise includes rights to collect and store water, and 
 to convey same to consumers for compensation ; Rochester & L. O. Water Co. v. 
 Rochester, 176 N. Y. 50, 68 X. E. 117, Affirming 84 App. Div. 78, 82 X. Y. Supp. 
 45.). holding a water company duly incorporated for the purpose of supplying 
 water, may enjoin the city from preventing the laying of water pipes where it 
 has procured a right of way and entered into contracts for the laying of pipes. 
 
 jCited in note (9 L. R. A. 196) on franchises of water companies. 
 
261 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 255 
 
 Distinguished in Re Brooklyn, 143 N. Y. 616, 26 L. R. A. 277, 38 N. E. 983, 
 Affirming 73 Hun, 506, 26 X. Y. Supp. 198, holding grant of franchise, not ex- 
 clusive in terms, does not preclude similar franchise to another company. 
 (.:is companies. 
 
 Cited in People ex rel. Woodhaven Gaslight Co. v. Deehan, 11 App. Div. 176, 
 42 X. Y. Supp. 1071, holding franchise to lay mains in streets is property, and 
 not affected by change in form of government from town to village; People ex rel. 
 Woodhaven Gaslight Co. v. Deehan, 153 X. Y. 532, 47 N. E. 787, holding fran- 
 chise cannot be destroyed by village arbitrarily refusing to permit company to 
 place conductors under streets. 
 Telesrraph companies and other corporations. 
 
 Cited in Western U. Teleg. Co. v. Syracuse, 24 Misc. 342, 53 N. Y. Supp. 690, 
 holding franchise for construction of subway by telegraph company is property, 
 which cannot be taken away or impaired by municipality; Hudson River Teleph. 
 Co. v. Watervliet Turnp. & R. Co. 135 X. Y. 408, 17 L. R. A. 679, 31 Am. St. Rep. 
 838, 32 X. E. 148, holding telephone company has no easement in streets used 
 by it, but franchise is property while it continues; Andrus v Xational Sugar Ref. 
 Co. 72 App. Div. 554, 76 X. Y. Supp. 530. holding franchise to erect docks is 
 property capable of conveyance; Champlain Stone & Sand Co. v. State, 66 Misc. 
 468, 123 N. Y. Supp. 546 (dissenting opinion) ; Southwestern Teleg. & Teleph. Co. 
 v. San Antonio, 32 Tex. Civ. App. 102, 73 S. W. 859; Fulton Light, H. & P. Co. 
 v. State, 65 Misc. 290, 121 X. Y. Supp. 536, on a franchise as being property; 
 Willcox v. Consolidated Gas Co. 212 U. S. 44, 53 L. ed. 396, 29 Sup. Ct. Rep. 
 192, 15 A. & E. Ann. Cas. 1034; Reversing 157 Fed. Rep. 875, on franchises of 
 public service corporations as being property. 
 Elements necessary to complete corporate franchise. 
 
 Cited in Re Union Elev. R. Co. 112 X. Y. 74, 2 L. R. A. 362, 19 X. E. 664; 
 Suburban Rapid Transit Co. v. New York, 128 N. Y. 520, 28 X. E. 525; White 
 v. Manhattan R. Co.- 139 N. Y. 26, 34 X. E. 887; Detroit Citizens' Street R. Co. 
 v. Detroit, 64 Fed. 645, holding municipal consent to construct street railway 
 is muniment of title to enjoyment of rights acquired thereimder; Andrews v. 
 Xational Foundry & Pipe Works, 10 C. C. A. 67, 18 U. S. App. 458, 61 Fed. 788, 
 holding corporation organized to construct and operate waterworks acquires no 
 complete franchise without grant from municipality; Underground R. Co. v. Xew 
 York, 116 Fed. 957, holding street railroad company filing map of proposed line, 
 failing to obtain city's consent, has no contract rights to be impaired by subse- 
 quent legislation; People v. Adirondack R. Co. 39 App. Div. 52, 55, 56, 56 X. Y. 
 Supp. 869 (dissenting opinion), majority holding railroad filing map and profile 
 of proposed route, and giving requisite notice to answer, acquires right in route as 
 against subsequent purchase by state : Underground R. Co. v. Xew York, 193 U. S. 
 425, 48 L. ed. 735, 24 Sup. Ct. Rep. 494, holding the regular organization of a 
 railroad and the filing of a map of the proposed route, without obtaining the con- 
 sent of municipal authorities or abutting property owners did not vest in them 
 an exclusive right to the space designated on map for their line. 
 Franchises limited as to time. 
 
 Cited in Citizens' Street R. Co. v. City R. Co. 64 Fed. 650, holding limitation 
 of thirty years in city ordinance consenting to use of streets for operation of 
 railway invalid; Vermillion v. Xorthwestern Teleph. Exch. Co. Ill C. C. A. 21, 
 189 Fed. 292, holding that city may limit term of telephone franchise. 
 
 Distinguished in Xew York C. & II. R. R. Co. v. Xew York, 202 X. Y. 221. '.'.'> 
 X. E. 638, Affirming 142 App. Div. 590, 127 X. Y. Supp. 513, holding that city 
 cannot oust railroad from streets on ground that charter has expired. 
 
2 L.R.A. 255] L. R. A. CASES AS AUTHORITIES. 262 
 
 I! iuhfs and obligations incident to corporate franchises in general. 
 
 Cited in Opinion of the Justices, 66 X. H. 030, 33 Atl. 1076, holding rights of 
 corporate property under Constitution same as those of individuals; New York 
 Cement Co. v. Consolidated Rosendale Cement Co. 38 Misc. .V23. 77 X. Y. Supp. 
 1093, holding franchise of corporation and its property are inseparable, and 
 grantee assumes obligations attaching to property; Weatherly v. Capital City 
 Water Co. 115 Ala. 179, 22 So. 140. holding contract to furnish water runs with 
 franchise, and is obligatory on assignee of recipient of grant; Re Water Comrs. 
 71 App. Div. 550, 76 X. Y. Supp. 11, holding reservation of right to purchase, in 
 consent of municipal corporation to use of streets by water company, not lack- 
 ing in mutuality; Boyer v. Little Falls, 5 App. Div. 7, 38 X. Y. Supp. 1114, hold- 
 ing purchaser of stock of business corporation may become substantial owner of 
 its property; Xew York Cement Co. v. Consolidated Rosendale Cement Co. 178 
 N. Y. 177, 70 X. E. 451, holding the part of a canal purchased by a manufactur- 
 ing corporation for transportation purposes still remained a public highway and 
 subject to restrictions placed upon the canal company in its charter; Wake- 
 field v. Theresa, 125 App. Div. 42, 109 X. Y. Supp. 414, holding defendant might 
 be enjoined from depriving plaintiff to whom it had granted a franchise to erect 
 and maintain an electric light plant the privilege of using the public streets; 
 People ex rel. Xew York Electric Lines Co. v. Ellison, 51 Misc. 417, 101 X. Y. 
 Supp. 444; Buffalo v. Delaware. L. & W. R. Co. 126 App. Div. 131, 110 X. Y. 
 Supp. 488, on rights of corporation under franchise of which there has been a 
 user. 
 
 Cited in footnotes to Theobold v. Louisville, X. 0. & T. R. Co. 4 L. R. A. 735, 
 which holds steam railroad cannot be operated in street without condemnation, 
 or consent of abutting owner; Chicago G. W. R. Co. v. First M. E. Church, 50 L. 
 R. A. 488, which holds that grant of right to operate railroad in street gives no 
 authority to erect and maintain water tank therein. 
 Regulation of use of franchises. 
 
 Cited in Re Seaboard Teleg. & Teleph. Co. 68 App. Div. 285. 74 X. Y. Supp. 15, 
 holding city cannot destroy franchise of telegraph company by refusing permit 
 to repair wires. 
 
 Distinguished in Lake Roland Elev. R. Co. v. Baltimore, 77 Md. 367, 20 L. R. 
 A. 129, 26 Atl. 510, holding street railway franchise for use of streets for double 
 track may be restricted to single track. 
 Assiiviiubility of franchise or patent. 
 
 Cited in General R. Signal Co. v. Cade, 122 App. Div. 109, 106 X. Y. Supp. 
 720, holding where a corporation has made a sale of its patents an action may 
 be maintained by the purchaser to compel the specific performance of the con- 
 tract; Des Moines City R. Co. v. Des Moines, 151 Fed. 861, on the assignability 
 of a franchise. 
 Leases and other contracts hetiveen railroads. 
 
 Cited in Tate v. Xeary, 52 App. Div. 84, 65 X. Y. Supp. 40. holding lease by 
 corporation extending beyond term of its existence not invalid; Frank v. New 
 York. L. E. & W. R. Co. 122 X. Y. 214, 25 X. E. 332, holding agreement trans- 
 ferring railroad, and all rights, powers, and privileges appurtenant thereto, con- 
 veys leasehold carved out of fee: Beveridge v. Xew York Elev. R. Co. 112 X. Y. 
 21, 2 L. R. A. 652, 19 X. E. 489, and Roddy v. Brooklyn Heights R. Co. 23 Misc. 
 370. 52 X. Y. Supp. 885, holding street railway incorporated before 1874 entitled 
 to contract with another railroad for use of respective roads; Barnett v. Brook- 
 lyn Heights R. Co. 53 App. Div. 441, 65 X. Y. Supp. 1068, and Ingersoll v. Xassau 
 Electric R. Co. 157 X. Y. 459, 43 L. R. A. 239, 52 X. E. 545, holding Laws 1839, 
 
203 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 255 
 
 chap. 218, permitting contracts between railroads for use of respective roads, in 
 force, and authority for traffic agreements and leases by both steam and street 
 railways; Roddy v. Brooklyn Heights R. Co. 23 Misc. 377, 52 X. Y. Supp. 885, 
 holding Laws 1839, chap. 218, not repealed by Laws 1884, chap. 252, prohibiting 
 traffic agreements between parallel lines; Topham v. Interurban Street R. Co. 
 42 Misc. 510, 86 X. Y. Supp. 295, holding defendant road taking a lease of two 
 independent connecting lines existing under separate franchises might be com- 
 pelled to give transfers from any of such lines to the other. 
 
 Cited in note (45 L. R. A. 273) on restrictions on consolidation of parallel or 
 competing railroads. 
 
 Distinguished in Ingersoll v. Xassau Electric R. Co. 157 N. Y. 477, 43 L. R. A. 
 239, 52 X. E. 545 (dissenting opinion), majority holding street railway may oper- 
 ate cars on track of another company under contract, without consent of abutting 
 property owners, 
 fros.sinii of one railroad by another. 
 
 Cited in People's R. Co. v. Syracuse, B. & X. Y. R. Co. 22 Abb. X. C. 438, 6 N. 
 Y. Supp. 326, holding street railroad cannot construct road across track of steam 
 railway until compensation and manner of creasing determined. 
 Revocation or repeal of charter or franchise. 
 
 Cited in West Jersey Traction Co. v. Camden Horse R. Co. 52 N. J. Eq. 482, 
 29 Atl. 333, holding legislature may, by repeal of charter, resume franchise of 
 street railway, either in whole or in part; Hudson River Teleph. Co. v. Water- 
 vliet Turnp. & R. Co. 135 X. Y. 408, 17 L. R. A. 679, 31 Am. St. Rep. 838, 32 N. 
 E. 148, holding legislative grant to telephone company to occupy streets is revoca- 
 ble at pleasure; Barnes v. Arnold, 23 Misc. 205, 51 X. Y. Supp. 1109, holding 
 legislature may modify or repeal charter of bank incorporated by filing certifi- 
 cate under general law; Ingersoll v. Xassau Electric R. Co. 157 X. Y. 463, 43 L. 
 R. A. 239, 52 X. E. 545; Sandham v. Xye, 9 Misc. 546, 30 X. Y. Supp. 552; Coney 
 Island, Ft. H. & B. R. Co. v. Kennedy, 15 App. Div. 591, 44 X. Y. Supp. 825; 
 Roddy v. Brooklyn City & X. R. Co. 32 App. Div. 314, 52 X. Y. Supp. 1025; Pape 
 v. Xew York & H. R. Co. 74 App. Div. 189, 77 X. Y. Supp. 725; Africa v. Knox- 
 ville, 70 Fed. 734; People v. Phyfe, 48 X. Y. S. R. 350, 20 X. Y. Supp. 4G1, hold- 
 ing franchise of railroad company is irrepealable and vested property; Avoca v. 
 Pittston, J. & A. Street R. Co. 7 Kulp, 476, holding city cannot revoke street- 
 railway franchise after acceptance and exercise of privileges granted; Herzog 
 v. New York Elev. R. Co. 37 X. Y. S. R. 568, 14 X. Y. Supp. 296, Affirmed in 
 59 X. Y. S. R. 343, 27 X. Y. Supp. 1034, holding municipal consent to construction 
 of elevated railway vests irrevocably in railroad right to use street for such 
 purpose; Wheeling & E. G. R. Co. v/Triadelphia, 58 W. Va. 507, 4 L.R.A.(N.S.) 
 331, 52 S. E. 499, holding a license to a street railway company might be for- 
 feited by failure to lay tracks in prescribed manner, where right was expressly 
 given to make such a forfeiture. 
 
 Cited in footnotes to Milwaukee Electric R. & Light Co. v. Milwaukee, 36 
 L. R. A. 45, which denies city's right to prevent relaying of street railway tracks 
 by company whose franchise not declared forfeited ; Detroit Citizens' Street R. Co. 
 v. Detroit, 26 L. R. A. 667, which holds express power to grant irrevocable consent 
 to use street for street railway given city by statute. 
 
 Cited in notes (9 L. R. A. 37) on forfeiture of corporate franchises; (8 L. R 
 A. 498) on forfeiture and dissolution for misuser of franchise. 
 Reservation of power to amend or repeal charter or franchise. 
 
 Cited in Hudson River Teleph. Co. v. Watervliet Turnp. & R. Co. 135 X. Y. 408, 
 17 L. R. A. 679, 31 Am. St. Rep. 838, 32 X. E. 148, holding franchise of telephone 
 
2 L.R.A. 255] L. R. A. CASES AS AUTHORITIES. 264 
 
 company revocable at will of legislature; Rochester & C. Turnp. Road Co. v. 
 Joel, 41 App. Div. 49, 58 N. Y. Supp. 346, holding statute depriving turnpike 
 company of right to charge tolls previously authorized unconstitutional, although 
 power of repeal reserved; Citizens' Street R. Co. v. City R. Co. 64 Fed. 651,. 
 holding, when charter of corporation repealed under power, provision must be- 
 made for disposition of property without confiscation. 
 
 Distinguished in Lord v. Equitable Life Assur. Soc. 194 N. Y. 225, 22 L.R.A. 
 (N.S.) 427, 87 N. E. 443, reversing 109 App. Div. 262, 96 N. Y. Supp. 10, which 
 affirmed 47 N. Y. Supp. 198, 94 X. Y. Supp. 65, holding the power given to re- 
 peal a charter does not give a right to repeal a special franchise where acted. 
 upon, there being no such reservation of the right. 
 
 Effect of dissolution of corporation, or revocation of charter on fran- 
 chises and other rights and liabilities. 
 
 Cited in Sandham v. Xye, 9 Misc. 546, 30 N. Y. Supp. 552, holding franchise 
 of street railway attaches to tracks, and not to right of corporation to exist ; 
 Detroit v. Detroit Citizens' Street R. Co. 184 U. S. 395, 46 L. ed. 610, 22 Sup. 
 Ct. Rep. 410, holding corporation capable of taking extension of franchise beyond 
 limit of corporate life; Brown v. Schleier, 55 C. C. A. 478, 118 Fed. 984, holding 
 lease to corporation not invalid because for term outlasting lessee's corporate 
 life; Nelson v. Hubbard, 96 Ala, 248, 17 L. R. A. 379, 11 So. 428, holding statute 
 providing for dissolution of corporation, and administration of assets through 
 trustee, does not impair obligation of contract ; Opinion of the Justices, 66 X.. 
 H. 640, 33 Atl. 1076, holding property, on dissolution of corporation, held by 
 stockholders as tenants in common; People ex rel. Xew York Underground R. Co. 
 v. Newton, 26 Jones & S. 463, 11 X. Y. Supp. 782, holding only rights of third 
 persons vested in contracts with corporation within rule that legislature cannot, 
 destroy by directing dissolution: Berwind- White Coal Min. Co. v. Ewart, 11 Misc. 
 494, 32 N. Y. Supp. 716, holding legislature may repeal or amend laws pertaining 
 to business corporations organized under act 1875; Dow v. Xorthern R. Co. 67 
 N. H. 37, 36 Atl. 510, holding corporate property cannot be diverted from 
 equitable owners by escheat or reverter upon repeal of charter; Xe\v York v_ 
 Twenty-third Street R. Co. 113 X. Y. 317, 21 X. E. GO, holding,, under right to 
 repeal charter, legislature cannot deprive corporation of property, or annul 
 contracts; Woodward v. Central Vermont R. Co. ISO Mass. 604, 62 X. E. 1051. 
 holding reservation of right to amend charter does not authorize requirement that 
 company pay debts of corporation whose property it acquires; People v. Westehrs- 
 ter Traction Co. 123 App. Div. 690, 108 N. Y. Supp. 59, holding an action to 
 procure a judgment vacating the charter of a corporation does not work a con- 
 fiscation of its rights and property; Lorillard v. Clyde, 29 Jones & S. 435, 20 
 X. Y. Supp. 433, holding defendant corporation was not by reason of dissolution 
 released from liability on a contract of guaranty of dividends; Re Long Acre 
 Electric Light & P. Co. 51 Misc. 412, 101 N. Y. Supp. 460; Re Long Acre Electric 
 Light & P. Co. 188 N. Y. 366, 80 N. E. 1101, holding the receiver of an insol- 
 vent corporation might properly sell its franchises at public auction; Re Long 
 Island Water Supply Co. 30 Abb. X. C. 52, 24 X. Y. Supp. 807, holding in pro- 
 ceedings by city under special act, condemning the property and franchises of a 
 water company organized in an outlying town which has been annexed to the 
 city, the franchise rights of such company survive the annexation and compen- 
 sation must be made as for an existing right; Com. ex rel. Atty. Gen. v. Altoona, 
 & P. Connecting R. Co. 15 Pa. Dist. R. 813, holding the franchise of a corporation 
 to maintain and operate a railroad is not affected by quo warranto proceedings 
 brought to forfeit the charter of the corporation; Farmers' Loan & T. Co. v. 
 Meridian Waterworks Co. 139 Fed. 669, holding the rights of a mortgagee of the 
 
265 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 255 
 
 property of a water company is not affected by a decree dissolving the franchise, 
 entered in a suit begun after mortgage given; State ex rel. Jackson v. Anheuser- 
 Busch Brewing Asso. 70 Kan. 190, 90 Pac. 777, on the rights of creditors wpon 
 corporate assets as not being annihilated by the dissolution of a corporation and 
 the seizure of its franchises by state; Heerwagen v. Crosstown Street Ry. Co. 
 179 X. Y. 103, 71 N. E. 729, modifying 90 App. Div. 301, 85 N. Y. Supp. 218, 
 on the acquirement by corporation of property rights which would survive its 
 corporate existence; Cunningham v. Glauber, 133 App. Div. 16, 117 X. Y. Supp. 
 866 (dissenting opinion), on right to maintain action for tort after the disso- 
 lution of the corporation, against the directors; State v. Cantwell, 142 N. C. 
 617, 8 L.R.A.iX.S.) 508, 55 S. E. 820, 9 A. & E. Ann. Cas. 141 (dissenting 
 opinion), on right of legislature to alter or dissolve corporation as not affecting 
 vested rights; Ott v. Odenwelder, 31 Pa. Co. Ct. 648, on dissolution of a corpo- 
 ration as not affecting its franchise; Farmers' Loan & T. Co. v. Meridian ^Yater- 
 works Co. 139 Fed. 668, on the independence of a receiver's title to franchises 
 and the existence of the corporation as such; Central Trust Co. v. Third Ave. R. 
 Co. 186 Fed. 294, holding that forfeiture of street railway's franchise does not 
 affect distribution of assets among creditors. 
 
 Cited in notes (9 L.R.A. 34) on dissolution of corporations; (69 L.R.A. 125. 
 155) on recovering for services and expenses under running contract with cor- 
 poration ended by its insolvency and dissolution; (134 Am. St. Rep. 309) on 
 acts and proceedings of dissolved corporations. 
 
 Distinguished in Xew York v. Bryan, 196 X. Y. 165, 89 X. E. 467, Reversing 
 130 App. Div. 064, 115 X. Y. Supp. 551, holding the consent of municipality to 
 railroad company, to construct its railroad and tunnel in city streets, prescribing 
 no time limit does not preserve the franchise and corporate rights from forfeiture 
 when road not completed within the time required by the act under which or- 
 ganized. 
 Taxation of corporate franchises. 
 
 Cited in People ex rel. Coney Island & B. R. Co. v. Xeff, 15 App. Div. 587. 44 
 N. Y. Supp. 810, holding, notwithstanding franchise of street railway is property, 
 it is not subject to taxation; S.tockton Gas & Electric Co. v. San Joaquim 
 County, 148 Cal. 320, 5 L.R.A. (]S T .S.) 178, 83 Pac. 54, 7 A. & E. Ann. Cas. 511, 
 holding the franchise of a gas and electric light company to lay pipes and con- 
 duits or erect poles and supply the inhabitants of a city with artificial light, 
 is real estate in the nature of an easement in streets in which exerciseable and 
 is taxable only in county where situated; People ex rel. Xew Amsterdam Gas Co. 
 v. State Tax" Comrs. 174 X. Y. 442, 63 L.R.A. 892, 105 Am. St. Rep. 674, 67 
 N. E. 69, holding tangible property connected with special franchises is an in- 
 separable part thereof, and not taxable by local assessors; People ex rel. Metro- 
 politan Street R. Co. v. State Tax Comrs. 79 App. Div. 202, 80 N. Y. Supp. 85 
 (dissenting opinion), on necessity of assessing special franchise and tangible 
 property together. 
 
 Cited in note (57 L.R.A. 36, 37, 38) on taxation of corporate franchisee. 
 
 Distinguished in People ex rel. Metropolitan Street R. Co. v. State Tax Comrs. 
 79 App. Div. 197, 80 N. Y. Supp. 85, holding an act creating special franchises 
 and providing for the assessment by State Board as part of such franchise, tan- 
 gible property formerly taxable by local boards was constitutional. 
 Taking property without compensation. 
 
 Cited in West Jersey Traction Co. v. Camden Horse R. Co. 52 N. J. Eq. 4^2. 
 29 All. 333, and Brooklyn Elev. R. Co. v. Brooklyn, 2 App. Div. 99, 37 X. Y. 
 tSupp. 560, holding franchise of street railway cannot be abrogated without com- 
 pensation; Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 690, 43 L. ed. 861, 19 
 
2 L.R.A. 255] L. R. A. CASES AS AUTHORITIES. 2G(J 
 
 Sup. Ct. Rep. 565, holding state cannot take away or destroy property, or annul 
 
 contracts of railroad with third persons; Manhattan R. Co. v. New York, 8!> 
 
 Hun, 432, 35 X. Y. Supp. 505, holding city cannot compel alteration in elevated 
 
 railway station, to permit crossing of viaduct, without compensating railway for 
 
 expense. 
 
 Statutes impii iri nu obligation of contract. 
 
 Cited in People ex rel. Reynolds v. Buffalo, 140 X. Y. 307, 37 Am. St. Rep. 563, 
 35 X. E. 485, holding property right acquired by statute cannot be devested by 
 repeal; Re Long Island Water Supply Co. 30 Abb. X. C. 52, 24 X. Y. Supp. 815, 
 holding attempt to avoid corporate franchise by legislation impairs force and 
 effect of contract; People ex rel. Reynolds v. Buffalo, 48 X. Y. S. R. 635, holding 
 award under act for relief of relator not affected by subsequent repeal of act; 
 People ex rel. Long Island v. Dohling, 6 App. Div. 90, 39 X. Y. Supp. 765, holding 
 right under act authorizing religious corporation to acquire and hold lands exempt 
 from taxation cannot be impaired by subsequent legislation repealing exemption : 
 Roddy v. Brooklyn City & X. R. Co. 32 App. Div. 313, 52 X. Y. Supp. 1025, 
 holding right of railroad to lease tracks cannot be impaired in hands of lessee, 
 either by legislation or change in Constitution, except under right of eminent 
 domain; Boswell v. Security Mut. L. Ins. Co. 193 X. Y. 474, 19 L.R.A.(X.S.) 
 949, 86 X. E. 532, Modifying 119 App. Div. 728, 104 X. Y. Supp. 130, holding the 
 legislature had no power to reduce the compensation of an agent of insurance 
 company under a contract with the company for a term of years part of which 
 had yet to run; People ex rel. Delaware & H. Canal Co. v. Public Service Com- 
 mission, 140 App. Div. 843, 125 X. Y. Supp. 1000, holding that rate which statute 
 authorizes railroad to charge may be changed by public service commission. 
 
 Cited in footnotes to International Bldg. & L. Asso. v. Hardy, 24 L. R. A. 284, 
 which denies legislative power to change remedy for enforcing trust deed; Kirk- 
 man v. Bird, 58 L. R. A. 670, which sustains, as to prior obligations, statute 
 exempting wages for sixty days preceding levy; Miners' & Merchants' Bank v. 
 Snyder, 68 L.R.A. 312, which holds corporate creditor's contract rights not im- 
 paired by statute requiring all creditors to unite in one suit against all stock- 
 holders 'for equitable distribution of liability fund among creditors. 
 
 Distinguished in People ex rel. Schurz v. Cook, 148 U. S. 410, 37 L. ed. 503, 
 13 Sup. Ct. Rep. 645, holding statute imposing tax on corporation organized to 
 purchase property pursuant to authority previously conferred by legislature 
 violates no contract. 
 Retroactive operation of taxing: and other statutes. 
 
 Cited in Geneva & W. R. Co. v. Xew York C. & H. R. R. Co. 163 X. Y. 232, 57 
 X. E. 498, holding procedure by which street railway may acquire right to cross 
 steam railroad not affected by statute enacted after commencement of proceed- 
 ings; Walker v. Walker, 155 X. Y. 82, 49 X. E. 663, holding statute authorizing 
 change in decree of divorce as to alimony, after final judgment, not retroactive; 
 Re Delaware & H. Canal Co. 129 X. Y. 112, 29 X. E. 237, holding statute pro- 
 viding fraudulent or defective assessment for taxation may be vacated or re- 
 duced by county judge, applicable to future assessments only; Mahoney v. Bern- 
 hardt, 27 Misc. 345, 58 X. Y. Supp. 748, holding statute requiring action to 
 enforce individual liability of stockholders of dissolved bank tj be brought by 
 permanent receiver not applicable to action previously bogun by creditors; 
 Barnes v. Arnold, 23 Misc. 208, 51 X. Y. Supp. 1109, holding banking law, 1892, 
 making bank stockholders individually liable for debts of corporation, not appli- 
 cable to debts previously contracted; People ex rel. Provident Sav. Life A-^tir. 
 Soc. v. Miller, 179 X. Y. 230, 71 X. E. 930, holding a franchise tax imposed upon 
 
267 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 255 
 
 domestic life insurance companies, on the gross amount of premiums received 
 during the preceding year, does not impose a tax on premiums derived from 
 contracts made prior to the time the statute took effect; Baldwin v. Aberdeen, 
 23 S. D. 636, 26 L.R.A. (N.S.) 120, 123 N. W. 80, on laws to be construed as 
 prospective unless clearly retrospective; Baldwin v. Aberdeen, 23 S. D. 640, 
 26 L.R.A. (N.S.) 120, 123 N. W. 80, holding that statute prohibiting negligence 
 action against city unless notice of time, place and cause of injury is given 
 within sixty days is not retroactive. 
 
 Cited in footnote to Jones v. German Ins. Co. 46 L. R. A. 860, which sustains 
 statute shortening time of insurance company's immunity from suit without 
 extending period of limitations. 
 
 Distinguished in Re Brooklyn, 73 Hun, 506, 26 N. Y. Supp. 198, holding fran- 
 chise of water company not increased by annexation act, requiring purchase 
 of property before annexing city can extend waterworks into annexed territory. 
 Due process of law. 
 
 Cited in Re Muehlfeld, 16 App. Div. 403, 45 N. Y. Supp. 16, holding assignee of 
 corporation not required to deliver property to receiver appointed in proceeding 
 to which he was not party; Brooks v. Tayntor, 17 Misc. 539, 40 N. Y. Supp. 445, 
 holding statute authorizing claimant of unpaid purchase money for monument 
 to remove and sell same at auction, without legal process or hearing, uncon- 
 stitutional ; People ex rel. Nisbet v. Amsterdam, 90 Hun, 495, 36 N. Y. Supp. 59, 
 holding investigation of claim against city by committee designated by law, with- 
 out affording claimant opportunity to participate, not due process of law; Buf- 
 falo v. Chadeayne, 27 N. Y. S. R. 63, 7 N. Y. Supp. 501, Affirmed 134 N. Y. 165, 
 31 N. E. 443, holding rescission, after work commenced, and without notice, of 
 permit to build frame houses within fire limit, is taking property without due 
 process of law. 
 
 Cited in footnote to Carleton v. Rugg, 5 L. R. A. 193, which holds statute 
 authorizing injunction against liquor nuisance does not unlawfully deprive of 
 property or privileges. 
 
 Cited in notes (5 L. R. A. 359; 11 L. R. A. 224; 13 L. R. A. 68) on due process 
 of law; (26 Am. St. Rep. 475) on statute giving one person's property to another. 
 Appointment of receiver. 
 
 Cited in Golden v. Fifth Judicial Dist. Ct. 31 Nev. 264, 101 Pac. 102], hold- 
 ing that directors of bank must be made parties to proceeding by stockholder for 
 appointment of receiver. 
 
 Cited in notes (6 L.R.A. 792) on appointment of receivers in general; (72 Am. 
 St. Rep. 60) as to when appointment of receiver is proper. 
 Powers of municipal corporations. 
 
 Cited in Mt. Hope Cemetery v. Boston, 158 Mass. 512, 35 Am. St. Rep. 515, 33 
 N. E. 695, holding cities may have private ownership of property which cannot 
 be wholly controlled by state government; People ex rel. Geneva v. Geneva, W. 
 S. F. & C. L. Traction Co. 112 App. Div. 585, 98 N. Y. Supp. 719, holding a mu- 
 nicipality might require a corporation which has been granted a franchise to 
 lay its tracks in streets, to change its line of tracks when necessary for street 
 improvements. 
 
 Cited in note (12 Am. St. Rep. 293) on power of state or municipality fo 
 authorize railroad in street. 
 
 Distinguished in New Orleans, City & Lake R. Co. v. New Orleans, 44 La. Ann. 
 733, 11 So. 78, holding city without power to make exclusive grant of right to 
 use streets for railway, unless expressly conferred by legislature; Detroit v. De- 
 troit City R. Co. 56 Fed. 888. holding city council cannot grant vested right to 
 build and operate street railway. 
 
2 L.R.A. 255] L. R. A. CASES AS AUTHORITIES. 268 
 
 Legislative control of Municipal corporations. 
 
 Cited in McSurely v. McGrew, 140 Iowa, 370, 132 Am. St. Rep. 248, 118 X. W. 
 415, holding that neither a county nor its citizens had such a vested interest in 
 the revenues of the county as to give a right to complaint of a legislative act 
 relieving a county treasurer from liability on his bonds for the loss of county 
 funds without his fault. 
 Private corporations. 
 
 Cited in Hinckley v. Schwarzschild & S. Co. 107 App. Div. 474, 95 X. Y. Supp. 
 357, holding a legislative act authorizing a corporation to issue preferred stock 
 with the consent of two thirds, instead of by the unanimous consent of its mem- 
 bers was constitutional; Colby v. Equitable Trust Co. 124 App. Div. 266, 108 
 N. Y. Supp. 978, holding legislature might authorize the merger of corporations 
 where it works no confiscation of property; McKee v. Chautauqua Assembly, 
 124 Fed. 812, holding a stock holder could not complain of the amendment of the 
 charter of the corporation by the legislature where no rights destroyed there- 
 by; Richards v. Citizens' Water Supply Co. 140 App. Div. 218, 125 X. 
 Y. Supp. 116, holding that water company, organized under statute giving 
 it power to lay pipes in adjoining town, must obtain consent of such town, 
 when such consent is made obligatory by subsequent amendment of statute: 
 Westminster Presby. Church v. Presbytery of New York, 142 App. Div. 876, 
 127 N. Y. Supp. 836, holding it within discretion of legislature as to how it will 
 exercise its authority to dissolve religious corporation and regulate administra- 
 tion of property dedicated in perpetuity to religious uses. 
 Constitutional exercise of police power. 
 
 Cited in Ives v. South Buffalo R. Co. 201 X. Y. 318, 34 L.R.A.(X.S-) 184. 94 
 N. E. 431, Ann. Cas. 1912B, 156, holding void, workmen's compensation in dan- 
 gerous employments act. 
 
 Distinguished in Tenement House Department v. Moeschen, 179 X. Y. 334, 70 
 L.R.A. 710, 103 Am. St. Rep. 910, 72 N. E. 231, 1 A. & E. Ann. Cas. 439, holding 
 a provision requiring school sinks in existing tenement houses in cities of first 
 class to be replaced by individual water closets was a proper and constitutional 
 exercise of the police power. 
 Sufficiency of expression of subject-matter of act in title. 
 
 Cited in Berges v. Milwaukee County, 116 Wis. 197, 93 X. W. 44, holding an 
 act providing that in counties of a certain population the office of register of 
 deeds should be a salaried office and Avhen such act should go into effect did not 
 conflict with constitutional provision that act should not embrace more than one 
 subject which shall be expressed in the title which was "An act to make the reg- 
 ister of deeds office of ... county a salaried office;" Economic Power & 
 Constr. Co. v. Buffalo, 128 App. Div. 883, 112 X. Y. Supp. 1327 (dissenting 
 opinion), on the unconstitutional ity of act attempting to confer a property 
 right in private corporation without expressing the same in the title. 
 
 2 L. R. A. 270, POWELL v. OREGONIAX R. CO. 13 Sawy. 535. 
 Stockholders' liability for corporate acts. 
 
 Cited in Kelly v. Clark, 21 Mont. 343, 42 L. R. A. 635, 69 Am. St. Rep. 668, 
 53 Pac. 959, holding stockholders liable for tortious acts of company after judg- 
 ment against it, coupled with insolvency; Wheatley v. Glover, 125 Ga. 720. 54 
 S. E. 626, on the collusiveness of a judgment on 'behalf of creditor against 
 corporation on stockholder thereof. 
 
 Cited in footnotes to Rider v. Fritchey, 15 L. R. A. 513, which holds stock- 
 holder assigning to insolvent person not relieved from liability; Powell v. Ore- 
 
269 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 277 
 
 gonian R. Co. 3 L. R. A. 201, which holds judgment against corporation con- 
 clusive against stockholder. 
 
 Cited in note (22 L.R.A.(N.S.) 258) as to whether statutory liability for debts 
 of corporation includes liability for torts. 
 
 Disapproved in Savage v. Shaw, 395 Mass. 573, 122 Am. St. Rep. 212, 81 X. 
 E. 303, 12 A. & E. Ann. Cas. 806, holding a judgment against a street railroad 
 company in an action of tort for personal injuries is not a debt for which directors 
 are liable, under the statutory liability. 
 "Debt" defined. 
 
 Cited in Scarritt Estate Co. v. J. F. Schmelzer & Sons Arms Co. 110 Mo. App. 
 412, 86 S. W. 489, on the term "debt" as not including a claim for unliquidated 
 damages. 
 
 2 L. R. A. 273, FARMERS DEPOSIT NAT. BANK v. PENN BANK, 123 Pa. 
 
 283, 16 Atl. 761. 
 Set-off to claims of bank. 
 
 Cited in Salladin v. Mitchell, 42 Neb. 863. 61 N. W. 127, holding certificate 
 of deposit may be set off against mortgagee held by assignee of insolvent bank; 
 Stone v. Dodge, 96 Mich. 516. 21 L. R. A. 284, 56 N. W. 75, holding certificate of 
 deposit of debtor of insolvent bank could not be set off against action by re- 
 ceiver; Thompson v. Union Trust Co. 130 Mich. 510, 97 Am. St. Rep. 494, 90 
 X. W. 294, holding deposit may be set off against depositor's notes to insolvent 
 bank, not due at time of insolvency. 
 
 Cited in footnotes to Grissom v. Commercial Nat. Bank, 3 L. R. A. 273, which 
 holds bank has no right to pay to third party note made by depositor; Henry v. 
 Allen. 36 L. R. A. 658, which holds cashier's check negotiable. 
 Set-off iiuniii-t receiver. 
 
 Cited in Cooper v. Plymouth Twp. School Dist. 39 Pa. Super. Ct. 485, holding 
 chose in action passes to a receiver subject to equitable right to set off existing 
 debts at time of his appointment; Kuebler v. Haines, 229 Pa. 279, 78 Atl. 141, 
 holding that defendant, in action by receiver for goods sold by corporation, may 
 set off his damages from failure of corporation to deliver all the goods. 
 
 Annotation cited in Brown v. Pegram, 149 Fed. 521, holding unliquidated 
 claim may be basis of equitable set off against judgment. 
 
 Cited in note in (47 Am. St. Rep. 143) on set-off by or against bank receiver. 
 
 2 L. R. A. 277, TURNER v. STEPHEXSON, 72 Mich. 409, 40 N. W. 735. 
 Adverse possession of part for all of land. 
 
 Cited in Walsh v. Wheelwright, 96 Me. 190, 52 Atl. 649, holding adverse occu- 
 pation of part of land must be shown to extend that occupation to adjoining 
 land; Henry v. Brown, 143 Ala. 456, 39 So. 325, holding an entry and occupa- 
 tion on a tract of land which the vendor had a right to convey would not operate 
 as a disseisin of the rightful owner of another also conveyed by such vendor with- 
 out right; Lang v. Osceola Consol. Min. Co. 145 Mich. 374, 108 N. W. 678; 
 Schmitt v. Traphagen, 73 N. J. Eq. 402, 133 Am. St. Rep. 739, 69 Atl. 189; Rober- 
 son v. Downing Co. 120 Ga. 839, 102 Am. St. Rep. 128, 48 S. E. 429, 1 A. & E. 
 Ann. Cas. 757, on actual possession of part of land as constructive possession of 
 all of it. 
 
 Distinguished in Clark v. Campau, 92 Mich. 578, 52 N. W. 1026, holding adverse 
 possession by occupation of part of land shown. 
 
2 L.R.A. 278] L. R. A. CASES AS AUTHORITIES. 270 
 
 2 L. R, A. 278, ST. LOUIS v. BELL TELEPH. CO. 96 Mo. 623, 9 Am. St. Rep. 
 
 370, 10 S. W. 197. 
 Power of city to prescribe rates for public-service corporations. 
 
 Cited in Re Pryor, 55 Kan. 729, 29 L. R. A. 400, 49 Am. St. Rep. 280, 41 Pae. 
 958, holding ordinance fixing maximum gas rates to private consumers invalid; 
 State ex rel. Wisconsin Teleph. Co. v. Sheboygan, 111 Wis. 39, 86 X. W. 657, 
 holding power to regulate rates of telephone company is not included in power 
 to regulate use of streets; Wabaska Electric Co. v. Wymore, 60 Neb. 202, 82 
 N. W. 626, holding city of second class without authority to regulate electric 
 light charges to private consumers when not expressly conferred; Crosby v. 
 Montgomery, 108 Ala. 504, 18 So. 723, holding ordinance fixing water rates under 
 power granted subsequent to contract with water company does not take away 
 vested right, nor deprive of due process of law; Cincinnati, H. & D. R. Co. v. 
 Bowling Green, 57 Ohio St. 345, 41 L. R. A. 427, 49 N. E. 121, holding electric 
 lighting company with franchise from town cannot arbitrarily fix rates for 
 lighting; Jacksonville v. Southern Bell Teleph. & Teleg. Co. 57 Fla. 381, 49 So. 
 509, holding a city could not fix the maximum rates to be charged by a telephone 
 company organized under an ordinance giving no such right to city, under general 
 power to pass ordinances for the health, convenience and safety of citizens; 
 State ex rel. Garner v. Missouri & K. Teleph. Co. 189 Mo. 100, 88 S. W. 41, holding 
 a city could not enforce a regulation fixing telephone rates where no delegation 
 of such power was made. 
 
 Cited in footnote to Charles Simon's Sons Co. v. Maryland Teleph. & Teleg. 
 Co. 63 L.R.A. 727, which upholds power of municipality to require telephone 
 company to furnish service at specified rates. 
 
 Cited in notes (5 L. R. A. 161) on state regulation of telephone companies; 
 (33 L. R. A. 181) on legislative power to fix tolls, rates, or prices of public- 
 service corporations; (31 L.R.A. 803) on police regulation of electric companies; 
 (33 L.R.A. (N.S.) 760) on power of municipality, apart from contract, to regulate 
 public service rates; (10 Am. St. Rep. 131, 135) on power of city to regulate 
 charge for use of telephone. 
 Charter limitations of cities. 
 
 Cited in Nevada use of Gilfillan v. Eddy, 123 Mo. 558, 27 S. W. 471 ; State ex rel. 
 St. Louis Underground Service Co. v. Murphy, 134 Mo. 574, 34 L. R. A. 374, 56 
 Am. St. Rep. 515, 34 S. W. 51 (supplemental opinion) ; Markley v. Mineral City, 
 58 Ohio St. 439, 65 Am. St. Rep. 776, 51 N. E. 28; Union Depot R. Co. v. South- 
 ern R. Co.. 105 Mo, 575, 16 S. W. 920, holding city can exercise only such 
 powers as are expressly granted, necessarily implied, or essential to declared 
 purposes of corporation; State ex rel. Peck v. Hermann, 84 Mo. App. 10, holding 
 charter provisions for security to city for works of construction cannqt be 
 changed by ordinance; Plattsburg v. Trimble, 46 Mo. App. 461, holding city of 
 fourth class may impose penalty upon keeper of billiard table for permitting 
 minor to play without consent of parents. 
 Construction of powers. 
 
 Cited in Knapp v. Kansas City, 48 Mo. App. 492, holding reasonable doubt 
 concerning existence of power to be resolved against corporation; Houstonia v. 
 Grubbs, 80 Mo. App. 437, holding doubt as to authority to create tax lien upon 
 abutting property should be resolved against lien : St. Paul v. Chicago, M. & St. 
 P. R. Co. 63 Minn. 346, 34 L. R. A. 188, 65 N. W. 649, holding doubt as to power 
 to grant privileges in streets to be resolved against municipality; Tacoma Gas & 
 Electric Light Co. v. Tacoma, 14 Wash. 291, 44 Pac. 655, holding delegation of 
 power will not be presumed in favor of municipal corporation, unless necessary 
 
271 L. R.. A. CASES AS AUTHORITIES. [2 L.R.A. 278 
 
 to corporate existence; Carthage v. Carthage Light Co. 97 Mo. App. 24, 70 S. W. 
 936, holding authorization of city to grant franchise to light streets by gas does 
 not give power to grant electric lighting franchise; St. Louis v. J. E. Kaine & 
 Bro. Real Estate Co. 180 Mo. 321, 79 S. W. 140, holding a city could not require 
 agents of owners of buildings to remove them at their own expense because 
 given power to regulate the business of real estate agents or require owners to 
 do so at their own expense; State ex rel. St. Louis Transfer Co. v. Clifford, 228 
 Mo. 207, ]28 S. W. 755, holding an attempt of municipal corporation to regulate 
 the width of tires of all vehicles according to a fixed schedule, under an ordi- 
 nance giving the right to regulate the width of tires of vehicles for heavy trans- 
 portation is invalid; Chillicothe ex rel. Meek v. Henry, 136 Mo. App. 474. 118 
 S. \\. 486; St. Louis v. King, 226 Mo. 345, 27 L.R.A. (X.S.) 611, 126 S. W. 495, 
 on courts as resolving any reasonable doubt of the existence of a power against 
 the corporation. 
 Reg-nlatiiig- nst- of streets. 
 
 Cited in State ex rel. St. Louis Underground Service Co. v. Murphy, 134 Mo. 
 561, 34 L. R. A. 374, 56 Am. St. Rep. 515, 34 S. W. 51, holding, under power to 
 icnulate streets, city may permit erection of telegraph and telephone poles; State 
 ex rel. National Subway Co. v. St. Louis, 145 Mo. 588, 42 L. R. A. 126, 46 S. W. 
 981, holding use of street for telephone poles not private use; St. Louis v. West- 
 ern U. Teleg. Co. 149 U. S. 471, 37 L. ed. 814, 13 Sup. Ct. Rep. 990, holding city 
 of St. Louis may impose upon telegraph company charge for use of street for 
 poles; State ex rel. National Subway Co. v. St. Louis, 145 Mo. 574, 42 L. R. A. 
 126, 49 S. W. 981, holding city has no concern with right of telephone company to 
 charge tolls, or making of agreements with other companies for the use of its 
 subway. 
 
 Cited in note (24 L. R. A. 722) on telegraph or telephone poles as additional 
 burden on highway. 
 Street Improvements. 
 
 Cited in Guinotte v. Egelhoff, 64 Mo. App. 367, holding proceedings for im- 
 provement of street at expense of abutting property must strictly conform to 
 statute; Sedalia Gaslight Co. v. Mercer, 48 Mo. 651, holding ordinance provid- 
 ing indemnity fund from sewer tax for payment of damages from sewer con- 
 struction not within powers; Kansas City v. Bacon, 147 Mo. 318, 48 S. W. 860 
 (dissenting opinion), majority holding Kansas City has power to condemn land 
 for park, and assess cost to district. 
 Revisory power of courts over ordinances. 
 
 Cited in Tarkio v. Cook, 120 Mo. 9, 42 Am. St. Rep. 678, 25 S. W. 202, holding 
 ordinances subject to revision in respect to existence of power, and whether rea- 
 sonably exercised. 
 "User of power conferred on public service corporation. 
 
 Cited in Steinman v. Edison Electric Illuminating Co. 17 Pa. Dist. R. 461, 
 24 Lane. L. Rev. 334, holding the power conferred upon an electric light com- 
 pany to fix prices does not give it the right to fix prices arbitrarily and discrim- 
 inate between customers. 
 Delegation of powers by state. 
 
 Cited in Jones v. North Georgia Electric Co. 125 Ga. 628, 6 L.R.A.(N.S.) 128, 
 54 S. E. 85, 5 A. & E. Ann. Cas. 526. holding state might properly under certain 
 conditions, confer upon the owners of water power the right of eminent domain; 
 Home Teleph. & Teleg. Co. v. Los Angeles, 155 Fed. 562, holding state had 
 power to delegate to municipal corporations -the power to regulate charges for 
 .telephone service. 
 
2 L.R.A. 278] L. R. A. CASES AS AUTHORITIES. 272 
 
 Cited in note (46 L. ed. U. S. 1144) on legislative power to regulate telephone 
 rates. 
 Implied powers. 
 
 Cited in Re Sanford, 236 Mo. 692, 139 S. W. 376, holding that power of county 
 board of equalization to punish witness for contempt is implied from statutory 
 power to subpoena witnesses. 
 
 2 L. R. A. 281, GULF, C. & S. F. R. Co. v. SMITH, 72 Tex. 122, 9 S. W. 865. 
 What covenants run with land. 
 
 Cited in Ft. Wayne Water Power Co. v. Allen County, 24 Ind. App. 519, 57 
 N. E. 146, holding duty imposed upon trustees to keep bridges in repair over 
 canal not covenant running with land; Ruddick v. St. Louis, K. & N. W. R. Co. 
 116 Mo. 30, 38 Am. St. Rep. 570, 22 S. W. 499, holding covenants in deeds to 
 railroad to furnish passes, coupled with condition of forfeiture, run with the 
 land; Sexauer v. Wilson, 136 Iowa, 359, 14 L.R.A.(N.S.) 188, 113 N. W. 941, 
 15 A. & E. Ann. Cas. 54, holding an agreement to perpetually maintain a divi- 
 sion fence is a covenant running with the land. 
 
 Cited in footnotes to Mott v. Oppenheimer, 17 L. R. A. 409, which construes 
 as running with the land agreement for party wall, expressly declared to run 
 with land; Doty v. Chattanooga Union R. Co. 48 L. R. A. 160, which holds cove- 
 nant for running certain trains binding on subsequent purchaser of railroad; 
 Brown v. Southern Pacific Co. 47 L. R. A. 409, which holds covenant by grantors 
 for railroad to build fences, or not hold company for injury to stock, personal 
 only. 
 
 Cited in notes (82 Am. St. Rep. 667, 678) on what covenants run with the hind; 
 (14 L.R.A.(N.S.) 190) on necessity of word "assigns" to make covenant as to 
 thing not in esse run with land. 
 
 2 L. R. A. 282, INNIS v. CEDAR RAPIDS, I. F. & N. W. R. CO. 76 Iowa, 165, 
 
 40 N. W. 701. 
 When nuisance abated. 
 
 Cited in Fogg v. Nevada C. O. R. Co. 20 Nev. 435, 23 Pac. 840, holding public 
 nuisance in construction of railroad will not be abated, unless special damage to 
 complainant shown; Redway v. Moore, 3 Idaho, 320, 29 Pac. 104, holding house 
 of prostitution will not be enjoined, unless special damage shown; Campbell v. 
 Jackman Bros. 140 Iowa, 485, 27 L.R.A. (X.S.) 292, 118 X. W. 755, holding courts 
 would not enjoin the sale of intoxicating liquors as a nuisance where the seller 
 has complied with all the conditions regulating such sale; Swain v. Chicago. B. 
 & Q. R. Co. 116 111. App. 538, holding that steamship company cannot recover 
 damages against railroad for obstruction of river by bridge. 
 
 Cited in footnote to State v. Stark, 54 L. R. A. 910, which denies right of 
 private person to abate liquor nuisance without process of law. 
 
 Cited in notes (9 L. R. A. 715) on abatement of nuisance by action; (6 L. R. 
 A. 255) on improper use of street by railroad company; (59 L. R. A. 83) on 
 right to obstruct or destroy rights of navigation; (3 L.R.A. (X.S.) 1127) on 
 private right of action for obstruction of navigable stream. 
 
 2 L. R. A. 284, RICHMOND & D. R. CO. v. REIDSVILLE, 101 N. C. 404, 8 
 
 S. E. 124. 
 Appeal. 
 
 Cited in Thornton v. Lambeth, 103 N. C. 89, 9 S. E. 432, dismissing appeal, with 
 opinion on new matter introduced. 
 
273 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 2S9' 
 
 Power of inn n i-i !'< I ' ' > to require I i<-.- n -<-.. 
 
 Cited in footnotes to Perry v. Salt Lake City, 11 L. R. A. 440, which holds city 
 council has wide discretion as to granting of licenses; Hoefling v. San Antonio, 
 16 L. R. A. 608, which holds city cannot levy occupation tax on persons not 
 similarly taxed by state; State ex rel. Beek v. Wagener, 46 L. R. A. 442, which. 
 sustains statute regulating business of commission merchants handling agricul- 
 tural products; State v. Robinson, 6 L. R. A. 339, which construes charter pro- 
 vision as to licensing hackmen, etc., as not applying to one hiring rigs to per- 
 sons using same; Knoxville & O. R. Co. v. Harris, 53 L. R. A. 921, which holds 
 exemption from privilege tax not included in exemption from ad valorem tax. 
 
 Cited in notes (4 L. R. A. 810) on license fees, not taxes; (6 L. R. A. 509; 
 9 L. R. A. 787) on license of occupations and privileged taxes; (60 L. R. A. 340, 
 346, 355) on constitutional equality in the United States in relation to corporate- 
 taxation; (60 L. R. A. 687) on corporate taxation and the commerce clause. 
 
 2 L. R, A. 285, BOWLING v. BURTON, 101 N. C. 176, 7 S. E. 701. 
 Ri^htM passing with title. 
 
 Cited in Scheel v. Alhambra Min. Co. 79 Fed. 825, holding grant of tunnel" 
 rights with appurtenances includes, by implication, every necessary incident and 
 appurtenance thereto; Scott v. Michael, 129 Ind. 254, 28 N. E. 546, holding right. 
 to maintain milldam as when conveyed, part of thing sold; Latta v. Catawba 
 Electric & Power Co. 146 N. C. 298, 59 S. E. 1028, on the sale of land as passing 
 appurtenant easements. 
 
 Cited in notes (81 Am. St. Rep. 767) on appurtenances; (10 Eng. Rul. Cas. 59) 
 as to when grant of an easement will be implied. 
 
 Defective statement of grfod cause of action. 
 
 Cited in Miz/.ell v. Ruffin, 118 N. C. 71, 23 S. E. 927, holding insufficient state- 
 ment of good cause of action cured if not demurred to. 
 Demurrer. 
 
 Cited in New Bern Bkg. & T. Co. v. Duffy, 156 N. C. 87, 72 S. E. 96, holding 
 that complaint in action on note due ten days after demand is not demurrable, 
 though it does not allege that the demand was made on defendant and that pay- 
 ment had not been made and that ten days had elapsed; Blackmore v. Winders, 
 144 N. C. 216, 56 S. E. 874, on when a pleading is demurrable. 
 
 2 L. R. A. 287, HEYE v. NORTH GERMAN LLOYD, 36 Fed. 705. 
 General average. 
 
 Cited in Ralli v. Troop, 157 U. S. 413, 39 L. ed. 753, 15 Sup. Ct. Rep. 657, 
 Reversing 37 Fed. 894, holding claim of general average not sustained when fire 
 put out by order of port commissioners. 
 
 2 L. R. A. 289, KENTUCKY & I. BRIDGE CO. v. LOUISVILLE & N. R. CO. 
 
 37 Fed. 567. 
 Pleading's. 
 
 Cited in Farmers' Loan & T. Co. v. Northern P. R. Co. 83 Fed. 251, holding 
 rules of pleading and practice apply to equity proceeding to enforce commission 
 order. 
 Power of United State* courts under Act to Regulate Commerce. 
 
 Cited in Interstate Commerce Commission v. Atchison, T. & S. F. R. Co. 50 Fed. 
 304; Shinkle, W. & K. Co. v. Louisville & N. R. Co. 62 Fed. 693; Interstate Com- 
 merce Commission v. Cincinnati, N. O. & T. P. R. Co. 56 Fed. 935; Interstate 
 Commerce Commission v. Lehigh Valley R. Co. 49 Fed. 180, holding Inter- 
 L.R.A. Au. Vol. I. 18. 
 
2 L.R.A. 289] L. R. A. CASES AS AUTHORITIES. 274 
 
 state Commerce Commission's findings of fact not conclusive in Federal court; 
 Interstate Commerce Commission v. Southern K Co. 123 Fed. 601, holding court, 
 in suit to enforce order of Interstate Commerce Commission, is not limited to 
 issues of evidence before Commission; United States v. Missouri P. R. Co. 65 Fed. 
 1)07, defining district attorney's power to institute proceedings, under amend- 
 ment, to enforce Interstate Commerce Act; Detroit G. H. & M. R. Co. v. Inter- 
 state Commerce Commission, 21 C. C. A. 141, 43 U. S. App. 308, 74 Fed. 841, 
 holding court can only grant or refuse compulsory obedience to Commission's 
 orders; Little Rock & M. R. Co. v. East Tennessee, V. & G. R. Co. 47 Fed. 773, 
 holding Federal court has jurisdiction of subject-matter arising under Interstate 
 Commerce Act; Tift v. Southern R. Co. 123 Fed. 793, sustaining jurisdiction of 
 United States circuit court, in cases arising under Interstate Commerce Act, 
 irrespective of citizenship of parties; Denver & R. G. R. Co. v. Baer Bros. Mer- 
 cantile Co. 109 C. C. A. 337, 187 Fed. 488, on whether reasonableness of rate on 
 .goods transported within state by interstate railroad is within jurisdiction of 
 interstate commerce commission. 
 
 Distinguished in Central Stock Yards Co. v. Louisville & N. R. Co. 112 Fed. 
 827, holding remedies under 8, 9, of Interstate Commerce Act exclusive. 
 Effect of decisions of Interstate Commerce Commission. 
 
 Cited in Edmunds v. Illinois C. R. Co. 2 111. C. C. 462, holding the finding and 
 opinion of the interstate commerce commission are not evidence in the state 
 courts; Interstate Commerce Commission v. Southern P. Co. 132 Fed. 837, holding 
 in a suit to enforce the order of interstate commerce commission, the court is not 
 confined to grounds assigned by the commission or bound to. reach the same con- 
 clusion upon; Western N. Y. & P. R. Co. v. Penn Ref. Co. 70 C. C. A. 23, 137 Fed. 
 349, holding the opinions of the interstate commerce' commission were not admis- 
 sible in an action for the enforcement of an order of pecuniary reparation. 
 Delegation of power to regulate carriers. 
 
 Cited in note (32 L.R.A.(X.S.) 641) on delegation of power to regulate carriers. 
 "What constitutes common carriers. 
 
 Cited in State ex rel. Winnett v. Union Stock Yards Co. 81 Neb. 79. 115 N. W. 
 627, holding a stock yards company maintaining tracks connected with various 
 railroads and engaged in transferring cars from one road to another at a fixed 
 charge was a common carrier; United States ex rel. Atty. Gen. v. Union Stock- 
 yard & Transit Co. 192 Fed. 337, holding same; Texas & P. R. Co. v. Henson, 
 56 Tex. Civ. App. 471, 121 S. W. 1127, holding contrary; Louisville & N. R. Co. 
 v. Central Stock Yards Co. 212 U. S. 147, 53 L. ed. 447, 29 Sup. Ct. Rep. 246 (dis- 
 senting opinion), as having intimated power of Congress to regulate stock yards 
 as parts in interstate commerce. 
 
 Distinguished in Covington & C. Bridge Co. v. South Covington & C. Street 
 R. Co. 93 Ky. 141, 15 L. R. A. 829, 19 S. W. 403, holding toll company cannot 
 exclude from bridge horse cars offering fair toll. 
 Requirement as to reasonable facilities. 
 
 Cited in Central Stock Yards Co. v. Louisville & N. R. Co. 63 L. R. A. 217, 55 
 C. C. A. 68, 118 Fed. 118, holding carrier with reasonable facilities for delivery 
 and care of stock may refuse delivery elsewhere. 
 Unlawful regulation of commerce. 
 
 Cited in Hopkins v. United States, 171 U. S. 592, 43 L. ed. 296, 19 Sup. Ct. Rep. 
 40, Reversing 82 Fed. 539, holding charges for facilities furnished not a regula- 
 tion of commerce; Minnesota v. Northern Securities Co. 123 Fed. 700, holding 
 corporation organized to hold stock of two competing railroads does not violate 
 state law against combination in restraint of commerce; De Rochemont v. New 
 
1 275 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 2S9 
 
 York C. & H. R. R. Co. 75 N. H. 162, 29 L.R.A.(N.S.) 531, 71 Atl. 868, holding 
 valid, state statute permitting attachment of idle cars of foreign railroad. 
 
 Distinguished in Inman v. St. Louis S. W. R. Co. 14 Tex Civ. App. 52, 37 
 S. W. 37, holding carrier bound, upon payment of freight, to deliver goods to 
 connecting carrier chosen by him. 
 Uiiforliiddeii discrimi nations and preferences. 
 
 Cited in Gamble-Robinson Commission Co. v. Chicago & X. W. R. Co. 21 L.R.A. 
 <N.S.) 986, 94 C. C. A. 217, 168 Fed. 165, 16 A. & E. Ann. Cas. 613, holding an 
 interstate commerce act prohibited undue and unreasonable preferences only; 
 Tift v. Southern R. Co. 123 Fed. 793, on obligation of common carrier to carry 
 goods for all without discrimination as to charges or facilities for transporta- 
 tion. 
 
 Cited in footnote to Little Rock & M. R. Co. v. St. Louis & S. W. R. Co. 26 
 Xi. R. A. 192, which holds not undue disadvantage to require prepayment of 
 freight charges by connecting carriers without requiring from other shippers 
 or carriers. 
 
 Cited in note (12 L.R.A.(N.S-) 514) on right of carrier to discriminate with 
 respect to special or unusual service. 
 Reasonable and just cliarg-es. 
 
 Cited in Farmers' Loan & T. Co. v. Northern P. R. Co. 83 Fed. 259, holding 
 reasonableness and justice sole requirements upon rates. 
 It IK lit to track connections. 
 
 Cited in Little Rock & M. R. Co. v. St. Louis S. W. R. Co. 26 L. R. A. 195, 
 11 C. C. A. 422, 27 U. S. App. 380, 63 Fed. 778, Affirming 59 Fed. 402, and 
 Oregon Short Line & U. N. R. Co. v. Northern P. R. Co. 51 Fed. 473, holding 
 <!ommon carrier not required to furnish use of tracks or terminal facilities to 
 another carrier; Com. ex rel. Norton Bd. of Trade v. Norfolk & W. R. Co. Ill Va. 
 -68. 68 S. E. 351, holding same. 
 
 Cited in footnote to Re Stillwater & M. Street R. Co. 59 L. R. A. 489, which 
 liolds electric railways entitled to track connections with intersecting steam 
 roads. 
 Thronsli routes and throngrh rates. 
 
 Cited in Little Rock & M. R. Co. v. St. Louis, I. M. & S. R. Co. 2 Inters. Com. 
 Rop. 765, 41 Fed. 563, holding court has no power to compel railroad companies to 
 inake joint through rates. 
 
 Cited in footnote to Jacobson v. Wisconsin, M. & P. R. Co. 40 L. R. A. 389, 
 which sustains making of joint rates for through shipments over connecting 
 railroads. 
 
 Cited in notes (12 L. R. A. 437) on carriers as to through traffic rates; (12 
 L. R. A. 438) as to connection with bridge company. 
 Discrimination in rates and charges. 
 
 Cited in Post v. Southern R. Co. 103 Tenn. 207, 55 L. R. A. 487, 52 S. W. 301 ; 
 State ex rel. Board of Transportation v. Sioux City, O. & W. R. Co. 46 Neb. 699, 
 31 L. R. A. 53, 65 N. W. 766; Gulf, C. & S. F. R. Co. v. Nelson, 4 Tex. Civ. App. 
 349, 23 S. W. 732; Central. Stock Yards Co. v. Louisville & N. R. Co. 192 U. S. 
 570, 48 L. ed. 569, 24 Sup. Ct. Rep. 339, Affirming 63 L. R. A. 217, 55 C. C. A. 
 68, 118 Fed. 119, holding railroad having stock yards under no obligation to 
 accept shipment from other states consigned to stock yards of physically con- 
 nected railroad in same city; Paxton & H. Irrig. Canal & Land Co. v. Farmers' 
 & M. Irrig. & Land Co. 45 Neb. 901, 29 L. R. A. 858, 50 Am. St. Rep. 585, 64 
 N. W. 343, and Gulf, C. & S. F. R. Co. v. Miami S. S. Co. 30 C. C. A. 154, 52 
 U. S. App. 132, 86 Fed. 419, holding carrier not bound to make similar through- 
 
2 L.R.A. 289] L. R. A. CASES AS AUTHORITIES. 276 
 
 rate contracts with connecting lines; Chicago & N. W. R. Co. v. Osborne, 3 
 C. C. A. 350, 10 U. S. App. 430, 52 Fed. 915, holding connecting companies not 
 bound to abandon full control of separate roads or unite in joint tariff. 
 
 Cited in note (5 Eng. Rul. Cas. 378) on carrier's duty as to accepting and 
 carrying goods. 
 Contracts with connecting lines for through rates. 
 
 Cited in Ft. Worth & D. C. R. Co. v. Whitehead, 6 Tex. Civ. App. 598, 26 
 S. W. 172, holding receipt of out-of-state shipment from connecting line not 
 alone an act of interstate commerce. 
 For forwarding 1 beyond terminus. 
 
 Cited in Louisville & N. R. Co. v. West Coast Naval Stores Co. 198 U. S. 498, 
 49 L. ed. 1141, 25 Sup. Ct. Rep. 745, holding a common carrier may asrree with 
 such other carrier as it may choose to forward beyond its own line goods it has 
 carried to its terminus. 
 Who may complain of discrimination. 
 
 Cited in Oregon Short Line & U. N. R. Co. v. Northern P. R. Co. 9 C. C. A. 412, 
 15 U. S. App. 479. 61 Fed. 161, holding that discrimination as to freight prepay- 
 ment against traffic and localities by one railroad company cannot be invoked 
 by another company. 
 Powers of Congress. 
 
 Cited in Bullard v. Northern P. R. Co. 10 Mont. 179, 11 L. R. A. 249, 25 Pac. 
 120, holding constitutionality of act not affected because incidentally preventing 
 enforcement of pre-existing contracts. 
 
 2 L. R. A. 328, DRUCKER v. WELLHOUSE, 82 Ga. 129, 8 S. E. 40. 
 Partnership as legal entity. 
 
 Cited in Green v. W T illingham, 100 Ga. 226, 28 S. E. 42 ; holding judgment 
 against partnership, erroneous where members are different from those alleged in 
 complaint; Page v. Citizens' Bkg. Co. Ill Ga. 79, 51 L. R. A. 471, 78 Am. St. 
 Rep. 144, 36 S. E. 418, holding partnership may be liable in action for malicious 
 prosecution;' Marlow v. Hughes Lumber Co. 92 Ga, 554, 17 S. E. 922, holding 
 petition by partnership for certiorari properly dismissed where affidavit showing 
 reason for dispensing with bond was made by partner as individual; Moore v. 
 Smith Mach. Co. 4 Ga. App. 152, 60 S. E. 1035, holding for the purpose of filing 
 affidavits of poverty the law recogni/es a partnership as a legal entity. 
 When partnership deemed insolvent. 
 
 Cited in Ransom v. Wardlaw, 99 Ga. 542, 27 S. E. 158, holding creditor's peti- 
 tion against partnership as insolvent lies, though member be solvent. 
 Partnership assignments not including individual property. 
 
 Cited in Birdsall, W. & P. Mfg. Co. v. Schwarz, 3 App. Div. 304, 38 N. Y. Supp. 
 368, holding judgment creditors, and not assignee of partnership, may attack con- 
 veyance of individual partner's property; Wilson v. Sullivan, 17 Utah, 348, 53 
 Pac. 994, holding partnership assignment need not include individual property 
 of partners. 
 
 Distinguished in McCord-Brady Co. v. Mills, 8 Wyo. 265, 46 L. R. A. 741, 
 footnote, p. 737, 56 Pac. 1003, holding partnership assignment for creditors, not 
 including separate property, void. 
 Kffect on assignment of preference to attorney. 
 
 Cited in Bank of Little Rock v. Frank, 63 Ark. 27, 58 Am. St. Rep. 65, 37 
 S. W. 400, holding preference in favor of attorney for services to be rendered in 
 connection therewith will not avoid entire assignment; Cortland Wagon Co. v. 
 
L. R. A. CASES AS AUTHORITIES. [2 L.ll.A. 336 
 
 Gordy, 98 Ga. 530. 25 S. E. 574, sustaining mortgage given by insolvent trader to 
 attorneys for services to be rendered in litigation over winding up of his affairs; 
 Zent v. Gilson, 52 Wash. 322, 100 Pac. 739, holding persons in the rightful pos- 
 session of property, charged with the larceny thereof, may transfer the same to 
 attorneys for services to be rendered in their defense. 
 
 Cited in note (58 Am. St. Rep. 89) on effect on assignment of provision for 
 payment of attorney fee. 
 
 l-'rnud O.H mutter of proof nllaiide. 
 
 Cited in note (58 Am. St. Rep. 95, 96) on fraud in assignments for creditors 
 as matter of proof aliunde. 
 
 2 L. R. A. 332, Re CHAPMAN, 37 Fed. 327. 
 Enlistment of minor. 
 
 Cited in Re Falconer, 91 Fed. 650, discharging enlisted minor on his father's 
 application. 
 
 Cited in notes (18 L.R.A. (N.S.) 958, 959) on right of minor unlawfully enlisted 
 to discharge upon habeas corpus from custody of court-martial under charge of 
 desertion or fraudulent enlistment; (39 L.R.A. (N.S. ) 456, 458) on enlistment of 
 minor without parent's consent. 
 
 Cited as overruled in United States v. Reaves, 60 C. C. A. 680, 126 Fed. 132, 
 Reversing 121 Fed. 850, holding minor's enlistment in Navy without father's con- 
 sent voidable only, and at father's instance. 
 
 2 L. R. A. 334, BARRY v. GUILD, 126 111. 439, 18 N. E. 759. 
 Covenants in deeds. 
 
 Cited in Cream City Mirror Plate Co. v. Swedish Bldg. & L. Asso. 74 111. App. 
 366, holding no eviction where vendee's possession of fixture and title were un- 
 disturbed. 
 
 Cited in footnotes to Mygatt v. Coe, 11 L. R. A. 646, which holds covenants of 
 warranty and quiet enjoyment by owner and husband do not run with land as 
 against husband; Mott v. Oppenheimer, 17 L. R. A. 409, which construes as run- 
 ning with the land agreement for party wall expressly declared to run with 
 land; Wiggins v. Pender, 61 L. R. A. 772, which holds assignee entitled to 
 benefit of covenant of warranty not naming him, if assigns named in habendum 
 clause of deed. 
 
 Cited in notes (6 L.R.A. 107) on covenants defined and construed; (21 L.R.A. 
 (N.S.) 385) on right of grantee in possession to question right of grantor to 
 collect purchase money; (53 Am. St. Rep. 115) on covenant for quiet enjoyment; 
 (82 Am. St. Rep. 668) on what covenants run with the land; (122 Am. St. Rep. 
 854) on breach of covenant of warranty by eviction; (15 Eng. Rul. Cas. 251, 252) 
 on right of assignee to sue covenantor. 
 Right of attorney to fees in his oven case. 
 
 Cited in Reynolds v. Price, 88 S. C. 533, 71 S. E. 51, holding that mortgagee's 
 charge of small fee for his services as attorney in preparing summons and com- 
 plaint in foreclosure is not so unreasonable as necessarily to induce belief that 
 claim was not made in good faith. 
 
 2 L. R. A. 336, PERTN v. PARKER, 126 111. 201, 9 Am. St. Rep. 571, 18 
 
 N. E. 747. 
 Duty of lirolier on failnre of niarK'iii. 
 
 Cited in note (74 Am. St. Hep. 479) on duty of broker on failure of margin. 
 
2 L.R.A. 336] L. R. A. CASES AS AUTHORITIES. 278 
 
 Implied knowledge of usages and customs of the business. 
 
 Cited in Pardridge v. Cutler, 68 111. App. 573, holding person dealing with, 
 board of trade intends business to be conducted according to its usage and. 
 custom. 
 Implied undertaking; to indemnify, and promise to pay. 
 
 Cited in Bibb v. Allen, 149 U. S. 501, 37 L. ed. 827, 13 Sup. Ct. Rep. 950, hold- 
 ing employing broker to sell for future delivery implies undertaking to in- 
 demnify, and promise to reimburse; Re Filer, 125 Fed. 263, holding claim against 
 employee inducing employers, by pretended orders from customers, to purchase 
 stocks for his benefit, provable in bankruptcy. 
 Waiver. 
 
 Cited in Keller v. Robinson. 153 111. 468, 38 N. E. 1072, holding stipulation as 
 to nature of defense in replevin no waiver of demand; Star Brewery Co. v. 
 Primas, 163 111. 662, 45 N. E. 145, holding proof must be clear to show waiver of 
 covenant, verbally or by acquiescence; Monahan v. Fidelity Mut. L. Ins. Co.. 
 148 111. App. 176, on a waiver as being the relinquishment of a known right. 
 
 Cited in note (137 Am. St. Rep. 190) on waiver of vendor's lien. 
 Harmless error in instructions. 
 
 Cited in Hayes v. Todd, 34 Fla. 243, 15 So. 752, holding charge unobjected; 
 to as error of law harmless, judgment being only proper one. 
 Right of factor or broker to recover advances. 
 
 Cited in Ware v. Heiss, 133 Iowa, 287, 110 N. W. 594, holding a commissiorr 
 merchant cannot recover of his principal for advances made on the purchase of 
 grain to close his deals, unless he has made actual payments. 
 
 2 L. R. A. 340, PEOPLE v. PEOPLE'S INS. EXCHANGE, 126 111. 466, 18- 
 
 N. E. 774. 
 \Vlio are agents of insured. 
 
 Cited in United Firemen's Ins. Co. v. Thomas, 47 L. R. A. 456, 34 C. C. A. 244, 
 92 Fed. 131, holding agent in fact of insured was not agent of insurer under 
 statute; Continental Ins. Co. v. Ruckman, 127 111. 377, 11 Am. St. Rep. 121, 20~ 
 N. E. 77, holding clerk of general agent might insert, in policy, clause relating 
 to nonoccupancy. 
 
 Cited in note (8 L. R. A. 129) on foreign insurance companies; conditions im- 
 posed by statute. 
 Licensing: insurance companies. 
 
 Cited in Indiana Millers' Mut. F. Ins. Co. v. People, 65 111. App. 358, holding 
 foreign insurance company can be prohibited from doing business without license. 
 What questions are for jury. 
 
 Cited in Roberts v. Chicago & G. T. R. Co. 78 111. App. 529. and Groszewski v. 
 Chicago Sugar Ref. Co. 84 111. App. 587, holding instruction to find, error; Mc- 
 Clary v. Warner, 69 111. App. 225. holding instruction to jury to find is error 
 if evidence sufficient; Finley v. West Chicago Street R. Co. 90 111. App. 370, 
 holding court may direct verdict if evidence insufficient; Illinois C. R. Co. v. 
 Meyer, 65 111. App. 535, holding insufficiency of unsupported verdict question 
 of law; National Syrup Co. v. Carlson, 155 111. 216, 40 N. E. 492, holding in- 
 struction to find for defendant should be refused if facts sustain verdict; Goldie- 
 v. Werner, 151 111. 555, 38 N. E. 95, holding case should have been submitted to 
 jury; Cohen v. Chicago & N. W. R. Co. 104 111. App. 322. holding evidence for 
 jury which tends to prove locomotive bell was not rung nor whistle sounded : 
 Cohen-Schwartz Rail & Steel Co. v. East St. Louis Locomotive & Mach. Shop 
 
279 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 343 
 
 Co. 158 111. App. 647, holding it for jury to determine weight and sufficiency of 
 evidence, when evidence fairly tends to establish plaintiff's case. 
 
 Cited in note (15 Eng. Rul. Cas. 72) on right to withdraw civil action from 
 jury for insufficiency of proof. 
 Practice. 
 
 Cited in Hopkins v. Nashville, C. & St. L. R. Co. 96 Tenn. 432, 32 L. R. A. 361, 
 34 S. W. 1029, holding demurrer to evidence proper practice when facts undis- 
 puted. 
 
 Cited in notes (20 L. R. A. 409) as to criminal prosecutions when the statutes 
 regulating the business of foreign insurance companies have not been complied 
 with; (10 L. R. A. 237) on directing verdict under scintilla doctrine; (4 L. R. 
 A. 770, 778) on practice in trial directing verdict where municipal regulations 
 of rate of speed of railroads is in question. 
 
 2 L. R. A. 343, ARTMAN v. FERGUSON, 73 Mich. 146, 16 Am. St. Rep. 572, 
 
 40 N. W. 907. 
 Partnership between husband and wife. 
 
 Cited in Haggett v. Hurley, 91 Me. 557, 41 L. R. A. 367, 40 Atl. 561; Chamber- 
 lain v. Murrin, 92 Mich. 365, 52 N. W. 640; Vail v. Winterstein, 94 Mich. 233, 
 18 L. R. A. 517, 34 Am. St. Rep. 334, 53 N. W. 932; Board of Trade v. Hayden, 
 4 Wash. 269, 16 L. R. A. 533, 31 Am. St. Rep. 924, 30 Pac. 87; Fuller & F. Co. v. 
 McHenry, 83 Wis. 581, 18 L. R. A. 515, 53 X. W. 896; Doolittle v. Gavagan, 74 
 AIuli. 14, 41 X. W. 846, holding husband and wife cannot become copartners; 
 HolFman v. Goldsmith, 131 Mich. 295, 91 X. W. 158, denying liability of wife- 
 holding bill of sale as security for saloon fixtures furnished on husband's credit; 
 Suau v. Caffe, 122 X. Y. 319, 9 L. R. A. 596, 25 X. E. 488 (dissenting opinion), 
 majority holding wife liable upon debt contracted with husband in business car- 
 ried on by them as partners; Xorwood v. Francis, 25 App. D. C. 475, 4 A. & E 
 Ann. Cas. 865, holding a married woman may not enter a valid copartnership 
 with her husband; Root v. Root, 164 Mich. 645, 32 L.R.A.(N.S.) 841, 130 N. W. 
 194, Ann. Cas. 1912 B, 740, holding that wife cannot conduct business in compe- 
 tition with husband. 
 
 Cited in notes (9 L. R. A. 593; 16 L. R. A. 527) on partnership between hus- 
 band and wife; (115 Am. St. Rep. 412) on same point; (31 Am. St. Rep. 935) 
 on married woman as partner; (34 Am. St. Rep. 339, 340) on power of married 
 women to be partners. 
 
 Distinguished in Hoaglin v. Henderson, 119 Iowa, 725, 61 L. R. A. 756, 97 
 Am. St. Rep. 335, 94 N. W. 247, holding wife may become husband's business 
 partner, under married woman's enabling acts; Hackley Xat. Bank v. Jeannot, 
 143 Mich. 455, 106 N. W. 1121, holding a married woman who has engaged in 
 trade as husband's partner- may bind her interest in the property of the two by 
 joining in a chattel mortgage of firm property to secure a firm debt 
 Joint contract)* of hnaband and wife. 
 
 Cited in Caldwell v. Jones, 115 Mich. 130, 73 N. W. 129, holding wife not 
 liable on note given for property purchased jointly. 
 
 Cited in footnote to Yerkes v. Hadley, 2 L. R. A. 363, which holds married 
 woman, executing mortgage with husband, estopped from setting up subsequently 
 acquired title. 
 Contracts of married women in relation to joint property. 
 
 Cited in Speier v. Opfer, 73 Mich. 39, 2 L. R. A. 348, 16 Am. St. Rep. 556, 40 
 X. W. 909, holding wife not liable upon contract for improvement of property 
 held jointly with husband. 
 
2 L.R.A. 343] L. R. A. CASES AS AUTHORITIES. 280 
 
 Contracts of married women at* to separate property. 
 
 Cited in Chamberlain v. Murrin, 92 Mich. 3G5, 52 X. W. 640, holding married 
 woman may contract for purchase or sale of property. 
 
 Cited in footnote to Vail v. Winterstein, 18 L. R. A. 515, which holds married 
 -woman may enter firm in which husband not a partner. 
 
 Cited in note (2 L. R. A. 347) on statutes removing disability of married 
 women to contract. 
 Contracts between liasband and wife. 
 
 Cited in Corcoran v. Corcoran, 119 Ind. 140, 4 L. R. A. 783, 12 Am. St. Rep. 
 391, 21 N. E. 468, holding contract of wife to support husband in consideration 
 of conveyance invalid. 
 Action by married women for tort. 
 
 Cited in Bandfield v. Bandfield, 117 Mich. 83, 40 L. R. A. 759, 72 Am. St. Rep. 
 550, 75 N. W. 287, holding action cannot be maintained against husband, after 
 divorce, for tort committed during coverture. 
 
 2 L. R. A. 345, SPEIER v. OFFER, 73 Mich. 35, 16 Am. St. Rep. 556, 40 
 
 N. VV. 909. 
 Contracts of married "women in general. 
 
 Cited in Green v. Tuttle, 5 Ariz. 183, 48 Pac. 1009, holding a deed joined in 
 fay wife, under belief that husband was alive with husband's attorney in fact who 
 Icnows husband is dead and represents it was husband's wish is void. 
 
 Cited in footnotes to Roop v. Real Estate Investment Co. 7 L. R. A. 211, which 
 holds married woman not empowered to bind herself by judgment note : Wilder v. 
 Wilder, 9 L. R. A. 97, which holds married woman estopped to claim vendor's 
 lien by representing that one loaning to vendee should have first mortgage : Hunt 
 v. Reilly, 59 L. R. A. 206, which holds wife's failure to notify purchaser of rights 
 after learning of forgery of her name to husband's deed does not estop her to 
 claim dower. 
 
 Cited in notes (7 L. R. A. 640) on wife's capacity to contract; (2 L. TJ. A. 
 343) on power of married woman to enter into partnership; (4 L. R. A. 334; 
 8 L. R. A. 407) on estoppel of married woman. 
 Conveyance to husband and wife jointly, iiatnre of estate. 
 
 Cited in Re Lewis, 85 Mich. 345, 24 Am. St. Rep. 94, 48 X. W. 580. holding that 
 'husband and wife take as tenants by entireties; Dickey v. Converse. 117 Mich. 
 455, 72 Am. St. Rep. 568, 76 N. W. 80, holding crops grown on lands subject to 
 same law as land, and exempt from execution against either tenant; Michigan 
 Beef & Provision Co. v. Coll, 116 Mich. 262, 74 N. W. 475, holding that husband 
 has no separable portion in estate so as to make his testimony competent against 
 Tiis half of land; Fowles v. Hayden, 130 Mich. 50, 89 N. W. 571, holding that wife 
 cannot recover for trespass to land owned by entireties; Lang v. Prindle, 163 
 Mich. 263, 128 N. W. 220, holding that estate by entirety is not affected by act 
 or conveyance of either husband or wife. 
 
 Cited in footnote to Re Albrecht, 18 L. R. A. 329, which denies tenancy by en- 
 tirety in bond and mortgage to husband and wife. 
 Contracts of married women in relation to joint property. 
 
 Cited in Doane v. Feather, 119 Mich. 693, 78 N. W. 885, and Curtis v. Crowe, 
 74 Mich. 100, 41 X. W. 876, holding contract for erection of building on prop- 
 erty owned jointly with husband invalid. 
 
 Cited in note (30 L. R. A. 329) on disposition or encumbrance of entirety 
 property. 
 
281 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 349 
 
 Joint contracts of liuOmiu! and wife. 
 
 Cited in Doane v. Feather, 119 Mich. 692, 78 N. W. 884, and Caldwell v. 
 Jones, 115 Mich. 130, 73 N. W. 129, holding wife not liable on note given with 
 husband for property purchased jointly; Kohn v. Collison, 1 Marv. (Del.) 113, 
 27 Atl. 834, holding married woman not liable upon indorsement of husband's 
 note, given for his debts. 
 
 Cited in footnotes to Yerkes v. Hadley, 2 L. R. A. 363, which holds married 
 woman, executing mortgage with husband, estopped from setting up subsequently" 
 acquired title. 
 
 Distinguished in Hackley Nat. Bank v. Jeannot, 143 Mich. 455, 306 N. W. 1121, 
 holding a married woman who has engaged in trade as husband's partner may 
 hind lier interest in property of the two by joining in a chattel mortgage on firm 
 property to secure a firm debt. 
 
 Disapproved, in effect, in Schofield v. Jones, 85 Ga. 823, 11 S. E. 1032, holding 
 pledge of wife's separate property as security for joint lease, valid. 
 Contract** between busband and wife. 
 
 Cited in Gilkerson-Sloss Commission Co. v. Salinger, 56 Ark. 297, 16 L. R. 
 A. 529. 35 Am. St. Rep. 105, 19 S. W. 747, holding married woman cannot form 
 partnership with husband; Morrill v. Morrill, 138 Mich. 113, 110 Am. St. Rep. 
 306, 101 X. W. 209, 4 A. & E. Ann. Gas. 1100, holding a verbal agreement between 
 husband and wife that she shall have an equal share in profits of land owned by 
 them in entirety is void. 
 
 Cited in footnote to National Granite Bank v. Tyndale, 51 L. R. A. 447, which 
 holds relief by way of estoppel not available to holders of notes of married woman 
 who had received proceeds, against defense that they were void because payable 
 to husband, who indorsed them. 
 
 Cited in note (16 L. R. A. 527) on partnership between husband and wife. 
 
 2 L. R. A. 349, HARRIS v. CORLTES, CHAPMAN & DRAKE, 40 Minn. 106, 
 
 41 N. W. 940. 
 Effect on tenant's liability of untenantable condition. 
 
 Cited in Railton v. Taylor, 20 R. I. 283. 39 L. R. A. 248, 38 Atl. 980, holding 
 lessor not exempted by term of lease from liability for his own negligence; Ro=cn- 
 stein v. Cohen, 96 Minn. 339, 104 N. W. 965, holding statutory provision adopted 
 in lease as to untenantableness of premises applies simply to those agents 
 such as fire and water, when of a sudden and unexpected nature; Kirby v. Wylie, 
 108 Md. 514. 21 L.R.A.(N.S.) 133, 129 Am. St. Rep. 451, 70 Atl. 213. holding it 
 has no reference to a destruction of the building by order of city building in- 
 spector by reason of its unsafe condition due to alterations and failure to repair. 
 
 Cited in notes (53 L. R. A. 673) on what constitutes damage "by the elements" 
 within the meaning of contracts with stipulations referring thereto; (9 L. R. A. 
 799) on agreement by landlord to keep premises in repair. 
 Duty of landlord to make repairs. 
 
 Cited in Eggensperger v. Lanpher, 92 Minn. 505, 100 N. W. 372, holding in 
 absence of agreement, the landlord is not bound to make repairs, improvements 
 or betterments. 
 Construction of contracts containing; general and particular recitals. 
 
 Cited in Railton v. Taylor, 20 R. I. 283, 39 L.R.A. 248, 38 Atl. 980, holding 
 general terms in contracts are restricted and limited by particular recitals when 
 used in connection with them. 
 
 Cited in note (21 L.R.A.(N.S-) 131) as to whether destruction by decay render- 
 
2 L.ll.A. 349] L. R. A. CASES AS AUTHORITIES. 282 
 
 ing premises untenantable, is within landlord's covenant to repair, or statiite 
 relieving tenant in case of destruction by act of God or elements. 
 
 2 L. R. A. 350, STATE, DARCY, PROSECUTRIX, v. DARCY, 51 N. J. L. 140, 
 
 16 Atl. 160. 
 
 Affirmed, without opinion, in 52 N. J. L. 222, 20 Atl. 319. 
 Taxability of foreign mortgages OP securities. 
 
 Cited in Holland v. Silver Bow County, 15 Mont. 462, 27 L. R. A. 798, 39 Pac. 
 575, holding mortgages on land within, but owned without, state not taxable; 
 State ex rel. Dwinnell v. Gaylord, 73 Wis. 325, 41 N. W. 521, holding mortgages 
 owned by resident, on nonresident lands and in hands of nonresident agent, not 
 taxable; Savings & Loan Soc. v. Multnomah County, 169 U. S. 428, 42 L. ed. 805, 
 18 Sup. Ct. Rep. 392, holding act taxing nonresident mortgagee's interest in 
 land as real estate valid; State, Smith, Prosecutor, v. Ramsey, 54 X. J. L. 548, 
 24 Atl. 445, holding assessment for taxes upon stock of foreign corporation held 
 by resident void; Trenton v. Standard F. Ins. Co. 76 N. J. L. 81, 68 Atl. 1111, 
 holding stocks of foreign corporations are not taxable in this state, where the 
 corporation has within twelve months paid taxes on its property in its ow-n 
 state; Chicago & X. W. R. Co. v. State, 128 Wis. 647, 108 X. W. 557, on the 
 taxability of mortgages of land. 
 Situs of personalty for taxation. 
 
 Cited in note ("62 Am. St. Rep. 458) on situs of personal property for purposes 
 of taxation. 
 
 2 L. R. A. 353, GRIFFIN v. MACON COUNTY, 36 Fed. 885. 
 Coupons as instruments distinct from bond. 
 
 Cited in footnotes to Internal Improvement Fund v. Lewis, 26 L. R. A. 743, 
 which holds interest coupons on negotiable bonds transferable separately by 
 delivery; Internal Improvement Fund v. Lewis, 26 L. R. A. 743. which holds 
 cancelation or payment of bond before maturity does not affect rights of bona 
 fide holder of coupon. 
 
 Cited in note (6 L. R. A. 562, 563) on coupons as distinct and separate in- 
 struments. 
 Limitation of action on bond. 
 
 Cited in notes (16 L.R.A.(X.S.) 805) as to when limitation begins to run against 
 action upon general municipal bonds; (16 Eng. Rul. Cas. 297) on running of limi- 
 tations as to arrears of interest on bonds. 
 
 2 L. R. A. 355, BACON v. HORNE, 123 Pa. 452, 16 Atl. 794. 
 Transfer of title to personal property. 
 
 Cited in Loftus v. Farmers' & M. Nat. Bank, 133 Pa. 112, 7 L. R. A. 315, 19 
 Atl. 347, holding state may regulate transfer of personal property within its 
 borders; Van Wyck v. Read, 43 Fed. 718, and De Turck v. Woefel, 19 Pa. Super. 
 Ct. 270, holding Maryland debt of Pennsylvania corporation passes to assignee 
 of creditor, and not subsequently attachable in Pennsylvania; Hilliard v. Enders 
 &. Co. 196 Pa. 593, 46 Atl. 839, holding foreign general assignment passes title 
 to assignor's personalty in sister state; Swedish- American Nat. Bank v. First 
 Nat. Bank, 89 Minn. 115, 99 Am. St. Rep. 549, 94 N. W. 218, holding obiter, 
 creditors residing in debtor's state cannot acquire lien by attaching grain in 
 another state, as against assignee for creditors. 
 Comity of states. 
 
 Cited in Wing v. Bradner, 162 Pa. 77, 29 Atl. 291, and Long v. Girdwood, 150 
 
^83 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 359 
 
 Pa. 419, 23 L. R. A. 47, 24 Atl. 711, holding foreign creditor cannot obtain pref- 
 erence in Pennsylvania over foreign assignment for creditors; Deni v. Penn- 
 sylvania R. Co. 181 Pa. 529, 59 Am. St. Rep. 676, 37 Atl. 558, holding statutory 
 cause of action not available to resident of foreign state; E. F. Kirwan Mfg. Co. 
 v. Truxton, 2 Penn. (Del.) 60, 44 Atl. 427, holding foreign corporation in handa 
 of foreign receiver cannot sue in its own name in Pennsylvania; Oilman v. 
 Ketchara, 84 Wis. 68, 23 L. R. A. 57, 36 Am. St. Rep. 899, 54 X. W. 395, holding 
 Ionian creditor enjoined from suit in his own state cannot sue in Pennsylvania; 
 Lett v. Thurber Whyland Co. 15 Pa. Co. Ct. 669, 4 Pa. Dist. R. 241, upholding 
 claim of resident debtor as against foreign receiver; Zeiger v. Pennsylvania R. Co. 
 151 Fed. 349, 37 Pittsb. L. J. N. S. 356, on statutory causes of action as not being 
 available to residents of foreign states. 
 
 Cited in notes (2 L. R. A. 328) on contract as to conflict of laws; (6 L. R, 
 A. 108; 8 L. R. A. 170) on law of place as governing validity of contract; 
 (17 L. R. A. 85) on supremacy of state or nation over devolution of property, 
 as to law of domicil governing validity of assignment; (23 L. R. A. 38) on 
 transfer of property out of the state by bankruptcy or insolvency proceedings 
 or assignment for creditors; (59 Am. St. Rep. 881, 882) on right to prosecute 
 transitory causes of action in other jurisdiction. 
 
 2 L. R. A. 357, UNDERWOOD v. GERBER, 37 Fed. 682. 
 
 Motion to amend and leave to take proofs in 37 Fed. 796. 
 Prior patent covering- process alleged to be infringed. 
 
 Cited in Universal Winding Co. v. Willimantic Linen Co. 82 Fed. 239, holding 
 no infringement where there is a prior process patent of device alleged to be 
 infringed. 
 Right to use of universal knowledge. 
 
 Affirmed in 149 U. S. 224, 37 L. ed. 710, 13 Sup. Ct. Rep. 854, holding plain- 
 tiff's patent devoid of patentable novelty or invention. 
 
 Cited in Bowman v. De Grauw, 60 Fed. 910, holding application for patent 
 must be read in light of all knowledge of the world. 
 
 2 L. R. A. 359, Re UXIOX ELEV. R. CO. 112 N. Y. 61, 19 N. E. 664. 
 Condemnation proceedings. 
 
 Cited in Rochester & H. Valley R. Co. v. Rochester, 17 App. Div. 260, 45 N. Y. 
 Supp. 687, holding railroad lands cannot be taken for public street by general 
 condemnation law; Re Mt. Vernon, 34 Misc. 231, 68 X. Y. Supp. 823, holding 
 appointment of commissioners to condemn necessarily includes fact that im- 
 provement was allowed; Re Buffalo, 46 X. Y. S. R. 83, 18 X. Y. Supp. 771, Re- 
 versing 39 X. Y. S. R. 284, 15 X. Y. Supp. 858, holding city court had no juris- 
 diction of proceedings to take land outside of city for park purposes. 
 
 Cited in note (22 Am. St. Rep. 49) on eminent domain. 
 NI.I i<-.- of public proceedings. 
 
 Cited in Re Mt. Vernon, 34 Misc. 230, 231, OS X. Y. Supp. 823, holding notice 
 by publication effectual to confer jurisdiction in street opening; Appleton v. 
 Xi'wton, 178 Mass. 282. 59 X. E. 048, holding constructive notice by filing in- 
 strument taking land for public use, coupled with time to protect rights there- 
 after, sufficient; Re Oneida Street Opening. 22 Misc. 237, 4!) X. Y. Supp. 828, 
 holding mortgagee of land to be taken for street entitled to notice; Hornells- 
 ville Electric R. Co. v. Xew York, L. E. & W. R. Co. 83 Hun, 411, 31 X". Y. Supp. 
 74.">. holding jurisdiction acquired by service of petition with notice to ext.-nd 
 .surface railroad tracks: Hennessey v. Volkening, 30 Abb. N. C. 110, 22 X. V. 
 
2 L.R.A. 359] L. R. A. CASES AS AUTHORITIES. 284 
 
 Supp. 533, holding notice essential in tax proceedings; Robert v. Kings County, 
 
 3 App. Div. 369, 38 N. Y. Supp. 521, holding statutory notice was complied with 
 in assessment proceedings; Re Hirsh, 14 Misc. 380, 36 X. Y. Supp. 19, holding 
 legality of ballot established by requirement to have sample ballots open to- 
 public inspection, and giving due notice; Colon v. Lisk, 13 App. Div. 200. 43 
 N. Y. Supp. 364, holding act providing for forfeiture of oyster boat for tres- 
 passing provided sufficient notice; Re Rochester, 102 App. Div. 187, 92 N. Y. Supp. 
 405, holding notice to property owners affected by condemnation proceedings 
 by publication in the official newspaper of the city was sufficient; Hennessey v. 
 
 'Volkening, 30 Abb. N. C. 110, 22 N. Y. Supp. 528, holding notice of sale of lands 
 for nonpayment sufficiently complied with requirement of statute that notice 
 state a day certain, where such date specifically stated; Clement v. May, 136 
 App. Div. 203, 120 N. Y. Supp. 588, on sufficiency of notice of proceedings to 
 seize liquors kept in violation of statute. 
 Elevated railways. 
 
 Cited in Nutting v. Kings County County Elev. R. Co. 21 App. Div. 75, 47 
 N. Y. Supp. 327, holding elevated railroad bound by act of agent in settling 
 claims; Brooklyn Elev. R. Co. v. Nagel, 75 Hun, 591, 27 N. Y. Supp. 669, hold- 
 ing valid the franchise to build and maintain elevated railroad. 
 Kiiilus IK-II ii i !<<! under municipal permission. 
 
 Cited in Buffalo v. Chadeayne, 134 N. Y. 165, 31 X. E. 443, Affirming 27 X. Y. 
 S. R. 63, 7 X 1 . Y. Supp. 501, holding common council cannot rescind permit to 
 construct wooden building after construction begun. 
 Rigrht of eminent domain. 
 
 Cited in People ex rel. Lasher v. Xew York. 134 App. Div. 78, 118 X. Y. Supp. 
 742, on municipal or other corporations as having no inherent right to take land 
 by eminent domain; Re East Canada Creek Electric Light & P. Co. 49 Misc. 567, 
 99 X. Y. Supp. 109, holding an electric light company contracting with towns 
 and villages for the lighting of streets may acquire by condemnation lands to 
 enable it to increase its power. 
 
 Cited in note (2 L.R.A. (X.S.) 146) on right of de facto corporation to exercise 
 eminent domain. 
 
 2 L. R. A. 363, YERKES v. HADLEY, 5 Dak. 324, 40 X. W. 340. 
 Estoppel of married women by deed. 
 
 Cited in Cooper v. Burns, 133 Fed. 404, holding a married woman joining with 
 husband in a mortgage of land in which she had a vested life interest, is estopped 
 by general covenants of warranty therein from asserting that the after-acquired 
 title to the fee did not inure to mortgagee's benefit ; Burns v. Cooper, 72 C. ( '. A. 
 25, 140 Fed. 282. holding married woman not estopped from asserting an after- 
 acquired interest in property by joining in mortgage with husband where her 
 common-law disability not abrogated by statute. 
 
 Cited in notes (8 L. R. A. 407) on estoppel of married women; (22 L. R. 
 A. 781) on estoppel of married women, by covenant, from acquiring superior title; 
 (57 Am. St. Rep. 173) on estoppel of married women. 
 
 2 L. R. A. 366, ROBIXSOX v. RUHR, 73 Wis. 430, 9 Am. St. Rep. 810. 40 
 
 X. W. 668. 
 
 Liability of municipalities, public officers, and contractor** for mistake or 
 tort. 
 
 Cited in Gates v. Young, 82 Wis. 276, 52 N. W. 178, holding lumber inspector 
 not liable on bond for mistakes of judgment of himself or deputies; Kempster v. 
 Milwaukee, 103 Wis. 423, 79 N. W. 411, holding if city common council is guilty 
 
285 L. R. A. CASKS AS AUTHORITIES. [2 L.R.A. 368 
 
 of tort, its members individually are alone liable; Bates v. Horner, Co Vt. 474, 
 22 L. R. A. 829, 27 Atl. 134, holding municipal officer not liable to individual 
 for result of official acts; Sells v. Dermody, 114 Iowa. 348, 8G X. YV. 325, holding 
 road supervisor liable for negligence in keeping roads in repair; Batdorff v. Ore- 
 gon City, 53 Or. 406, 100 Pac. 937, on officer of a municipal corporation as being 
 liable for injuries resulting from malfeasance or nonfeasance in office. 
 
 Cited in footnotes to Culver v. Streator, 6 L. R. A. 270, which holds city liable 
 for negligence of employee enforcing ordinance against unmuzzled dogs running 
 at large; Curran v. Boston, 8 L. R. A. 243, which holds city not liable for negli- 
 gence of workhouse officers; Bair v. Struck, 63 L.R.A. 4SJ, which holds deputy 
 sheep inspector liable for injury due to negligently dipping sheep in improper 
 bath; Wilson v. Mitchell, 65 L.R.A. 158. which holds that municipality cannot 
 ratify act of waterworks superintendent in wrongfully connecting well with city 
 water mains so as to become liable for water taken from the well. 
 
 Cited in notes (22 L. R. A. 824-82G, 830, 834) on personal liability of highway 
 officers for negligence; (9 L. R. A. 210) on drains and sewers, as to liability of 
 municipality for neglect of its officers or agents: (5 L. R. A. 254) on liability 
 of municipal corporations for injuries resulting from defective streets/ bridges, 
 etc.; (108 Am. St. Rep. 367) on what municipal corporations are answerable for 
 injuries due to defects in streets and other public places. 
 
 Distinguished in Britton v. Green Bay & Ft. H. Waterworks Co. 81 Wis. 55, 
 29 Am. St. Rep. 856, 51 X. W. 84, holding water company not liable to indi- 
 viduals for breach of contract with municipality; Lawton v. Waite, 103 Wis. 
 254, 45 L. R. A. 620, 79 N. W. 321, holding liability to third person of sureties 
 of subcontractor to carry mail, dependent solely upon contract of suretyship. 
 
 2 L. R. A. 368, MEDFORD v. LEVY, 31 W. Va. 649, 13 Am. St. Rep. 887, 8 
 
 S. K. 302. 
 "Nuisance. 
 
 Cited in Powell v. Bentley & G. Furniture Co. 34 W. Va. 808, 12 L. R. A. 55, 
 12 S. E. 1085, holding great caution should be used in restraining operation of 
 factory because of noise; Shellabarger v. Morris, 115 Mo. App. 574, 91 S. W. 
 1005, holding the conduct of defendant in making various kinds of noises re- 
 sulting in such nervous agitation as impaired her ability to perform her work 
 constituted a nuisance that would be abated. 
 
 Cited in footnote to Pfingst v. Senn, 21 L. R. A. 569, which denies right to 
 enjoin as nuisance prospective use of premises as beer garden. 
 
 Cited in notes (107 Am. St. Rep. 226) on what are public nuisances; (118 Am. 
 St. Rep. 870) on nature and elements of private nuisance. 
 
 Distinguished in Koblegard v. Hale, 60 W. Va. 41, 114 Am. St. Rep. 868, 53 
 S. E. 703. 9 A. & E. Ann. Cas. 732. holding an injunction would not lie to restrain 
 an adjoining land owner from maintaining a fence on the ground that it shut out- 
 light and air. 
 Parties must come into court of equity with clean hand*. 
 
 Cited in Barnes v. Starr, 64 Conn. 155, 28 Atl. 980, holding agreement to 
 destroy antenuptial contract, made to deceive husband's relatives, not enforceable; 
 Ho Oil Co. v. Indiana Natural Gas & Oil Co. 174 Ind. 637, 30 L.R.A.(N.S-) 1057, 
 92 X. E. 1, denying injunction against pumping oil by artificial means, where 
 plaintiff is doing same. 
 
 Cited in footnote to Duncan v. Flanagan, 7 L. R. A. 412, which holds failure 
 to set up joint debtor's discharge in bankruptcy defense to action against him 
 for contribution. 
 
2 L.R.A. 308] L. R. A. CASES AS AUTHORITIES. 28fr 
 
 Cited in note (11 L. R. A. 458) on valid trusts as to suitor coming into equity 
 with clean hands. 
 
 2 L. R. A. 372, McNUTT v. McNUTT, 116 Ind. 545, 19 X. E. 115. 
 Requisites and validity of antenuptial contracts and marriage settle- 
 ments. 
 
 Cited in Moore v. Harrison, 26 Ind. App. 411, 59 X. E. 1077, and Ragsdale v. 
 Barnett, 10 Ind. App. 485, 37 N. E. 1109, holding law favors antenuptial con- 
 tracts; Spurlock v. Brown, 91 Tenn. 255, 18 S. W. 868, and Carr v. Lackland,. 
 112 Mo. 463, 20 S. W. 624, holding marriage good consideration for agreement; 
 Alkire v. Allure, 134 Ind. 359, 32 N. E. 571, holding conveyance to children not. 
 shown to have been made in fraud of antenuptial agreement ; Wind v. Haas,. 
 8 Pa. Co. Ct. 648, holding antenuptial contract does not require formal words : 
 Thompson v. Tucker-Osborn, 111 Mich. 478, 69 N. W. 730, holding antenuptial 
 agreement can be enforced in equity; Carr v. Lackland. 112 Mo. 457, 20 S. W. 
 624, holding antenuptial agreement should be construed according to intention 
 of parties and surrounding circumstances; Bowen v. S'.vander, 121 Ind. 168. 22 
 N. E. 725, holding intention of parties to antenuptial agreement was to deprive- 
 themselves of all rights in each other's property; Kennedy v. Kennedy, 150 Ind. 
 642, 50 N. E. 756, holding parties by antenuptial contract intended the pro- 
 visions should be in lieu of wife's legal interest; Buffington v. Buffington, 151 
 Ind. 202, 51 X. E. 328. holding antenuptial contract to release all claims to prop- 
 erty of intended husband had reference to disposition on death ; Ragsdale v~ 
 Barnett, 10 Ind. App. 489, 37 X. E. 1109, holding antenuptial agreement in- 
 tended only life estate in personal property: Mannan v. Mannan, 154 Ind. 12. 
 55 N. E. 855, holding acceptance of deed of land in lieu of interest in husband's 
 estate at death barred such interest; Leach v. Rains. 149 Ind. 159, 48 X. E. 858, 
 holding acceptance of deed by husband in lieu of interest in wife's land bars his 
 right therein as survivor under statute; Unger v. Mellinger, 43 Ind. App. 527, 88 
 X. E. 74, holding persons might by an antenuptial contract regulate the descent 
 of their property regardless of the laws of descent; Xesmith v. Piatt, 137 Iowa. 
 300, 314 X. W. 1053, holding the agreement of husband to pay wife one thousand 
 dollars and the consideration of marriage was sufficient consideration to support 
 wife's promise not to claim any dower in his estate; Offutt v. Offutt, 106 M.I. 
 242, 12 L.R.A. (X.S.) 232, 124 Am. St. Rep. 491, 67 Atl. 138, holding a widow was 
 entitled to the specific performance of a promise made by the husband before 
 marriage in a letter written to her, that if she would marry him he would care 
 for her and support her as long as she lived; Appleby v. Appleby, 100 Minn. 428. 
 10 L.R.A.(X.S.) 598, 117 Am. St. Rep. 709, 111 X. W. 305. 2 A. & E. Ann. Cas. 
 563. holding marriage was a sufficient consideration to support an antenuptial 
 contract; Rieger v. Schaible, 81 Xeb. 46, 17 L.R.A. (X.S.) 872, 115 X. W. 560, 
 16 A. & E. Ann. Cas. 700, holding an antenuptial contract in consideration of 
 marriage and the release by each party of all interest in the property of the 
 other is based upon a sufficient consideration, each being the owner of property in 
 which the other would acquire an interest; Unger v. Mellinger. 37 Ind. App. 644, 
 117 Am. St. Rep. 348, 77 X. E. 814, on marriage as furnishing a sufficient con- 
 sideration for an antenuptial contract; Ellis v. Ellis. 1 Tenn. Ch. App. 206; Deller 
 v. Deller, 141 Wis. 261, 25 L.R.A. (N.S.) 756, 124 X. W. 278; Frazer v. Andrews, 
 134 Iowa, 625, 11 L.R.A.(X.S-) 596, 112 X. W. 92, 13 A. & E. Ann. Cas. 408, 
 on antenuptial contracts as being liberally construed in order to give them effect. 
 
 Cited in footnotes to Hunt v. Hunt, 59 L. R. A. 306, which holds parol con- 
 tract to convey land in consideration of marriage not validated by marriage; 
 Wright v. Wright, 55 L. R. A. 261, which holds marriage sufficient to support: 
 
287 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 38* 
 
 promise by groom's father to maintain bride and child if groom fails to. 
 
 Cited in note (13 L. R, A. 712) on antenuptial settlement. 
 
 Limited in Lamb v. Lamb, 130 Ind. 277, 30 Am. St. Rep. 227, 30 N. E. 
 36, holding antenuptial agreement fraudulently procured should be set aside. 
 How action to quiet title triable. 
 
 Cited in Puterbaugh v. Puterbaugh, 131 Ind. 294, 15 L. R. A. 345, 30 N. E. 
 519, holding action to quiet title triable by jury. 
 In what capacity widow taken interest in husband's estate. 
 
 Cited in Amos v. Amos, 117 Ind. 39, 19 N. E. 543, holding under statute 
 widow takes interest by virtue of marital rights, and not as heir. 
 How judgment corrected. 
 
 Cited in Evans v. State, 150 Ind. 656, 50 N. E. 820, holding form or substance- 
 of judgment must be first corrected by motion to modify in court below. , 
 Disc-ret ion in admission of evidence. 
 
 Cited in Roush v. Roush, 154 Ind. 572, 55 N. E. 1017, holding admissioit 
 of evidence discretionary; Calkins v. Seabury-Calkins Consol. Min. Co. 5 S. D. 
 306, 58 N. W. 797, holding discretionary to reopen case; Re Devoe, 113 Iowa,. 
 11, 84 N. W. 923, holding secondary evidence of lost instrument admissible. 
 
 2 L. R. A. 380, THE CITY OF SALEM, 37 Fed. 846. 
 
 Adhered to on subsequent hearing, 4 L. R. A. 125, 13 Sawy. 614, 38 Fed.. 
 762. 
 Xavigable waters. 
 
 Cited in note (5 L. R. A. 687) on ownership of banks and shores of navigable- 
 waters. 
 Craft subject to rules as to carriage of passengers. 
 
 Cited in The Scow No. 1, 169 Fed. 718, holding a scow liable to penalties for 
 carrying passengers without sufficient life preservers, notwithstanding she re- 
 ceived no actual compensation. 
 
 2 L. R. A. 384, BUFFALO EAST SIDE STREET R. CO. v. BUFFALO STREET 
 
 R. CO. Ill N. Y. 132, 19 N. E. 63. 
 Construction of contracts. 
 
 Cited in Grand v. Livingston, 4 App. Div. 595, 38 N. Y. Supp. 490, constru- 
 ing release for negligence by lex loci, where contrary not intended by carrier or 
 reasonable for shipper; Gail v. Gail, 127 App. Div. 896, 112 X. Y. Supp. 96, on 
 how words used in a contract are to be construed. 
 Presumption of constitutionality. 
 
 Cited in Beardsley v. New York, L. E. & W. R. Co. 17 Misc. 259, 40 N. Y. 
 Supp. 1077, holding constitutionality of regulation of railroad fares presumed. 
 Impairing contract obligations. 
 
 Cited in Blume v. Interurban Street R. Co. 41 Misc. 174, 83 N. Y. Supp. 989, 
 sustaining statute requiring railroad to give transfers over all lines of system 
 within city; Topham v. Interurban Street R. Co. 42 Misc. 510. 86 N. Y. Supp. 
 295, holding corporation leasing street railroads receiving franchises before en- 
 actment of statute requiring free transfers liable for refusing transfers; Budd 
 v. New York, 143 U. S. 531, 36 L. ed. 251, 12 Sup. Ct. Rep. 468, Aflirming 
 People v. Budd, 117 N. Y. 11, 5 L. R. A. 564, 15 Am. St. Rep. 460, 22 N. E. 
 670, upholding legislative regulation of elevator charges; \Yhit.. v. Farmers' 
 Highline Canal & Reservoir Co. 22 Colo. 200, 31 L. R. A. 831, 43 Pac. 1028, 
 holding legislature may regulate distribution of water by ditch companies for 
 hire, without impairing existing contracts; New York v. Herdje, 68 App. Div. 
 
2 L.R.A. 384] L. R. A. CASES AS AUTHORITIES. 288 
 
 :!74. 74 X. Y. Supp. 104, holding law destroying inchoate right to build tene- 
 ment contracted for, within police power; Regan v. Fosdick, 19 Misc. 493, 43 
 X. Y. .Supp. 1102, holding tenant quarantined under health laws not liable for 
 penalty for holding over; Coxe v. State, 144 X. Y. 407, 39 X. E. 400, holding 
 legislative grant of land under tide waters revocable by subsequent legislature; 
 State ex rel. Payne v. Kinloch Teleph. Co. 93 Mo. App. 358, 67 S. W. 684, holding 
 that courts may compel telephone company to render service; Board of Educa- 
 tion v. Phillips, 67 Kan. 552, 73 Pac. 97, holding change in statute so as to 
 permit issuance of additional school bonds not unconstitutional as impairing 
 contract of holder of former bonds; Rochester v. Rochester R. Co. 382 X. Y. 115, 
 70 L.R.A. 780, 74 X. E. 953, holding a statute exempting street railroad company 
 from the expenses of new pavement for a certain time did not prevent such rail- 
 road from being made to share in the expense of repaving such streets; People 
 ex rel. Cohoes R. Co. v. Public Service Commission, 143 App. Div. 778, 128 X. Y. 
 Supp. 384; Boswell v. Security Mut. L. Ins. Co. 119 App. Div. 733, 104 X. Y. Supp. 
 130, on the exercise of the police power by legislature as not to be limited by 
 provisions of contracts between individuals or corporations. 
 
 Cited in notes (19 L. R. A. 571) on regulation of carriage by street railroad; 
 (33 L. R. A. 180) on legislative power to fix tolls, rates, or prices. 
 
 Distinguished in Bronk v. Barckley, 13 App. Div. 80, 43 X T . Y. Supp. 400, 
 holding authorized contract for convict labor cannot be impaired by state. 
 Constitutionality of statute. 
 
 Cited in People v. Budd, 7 N. Y. Crim. Rep. 199, holding a statute fixing a 
 maximum charge for elevating grain was valid and constitutional; El Paso & 
 S. W. R. Co. v. Foth, 101 Tex. 140, 105 S. W. 322, 45 Tex. Civ. App. 275, 100 S. W. 
 171, on act declaring the doctrine of fellow servants shall not apply in certain 
 cases as not being unconstitutional; Smith v Stephens, 173 Ind. 573, 30 L.R.A. 
 <N.S.) 708, 91 N. E. 167, holding valid, bank stock tax act which deals alike with 
 all in same class. 
 
 Cited in notes (6 L.R.A.(X.S.) 835) on businesses affected with public interest 
 subjecting them to regulation and control in respect to rates or prices; (62 Am. 
 St. Rep. 290) on regulation of rates. 
 Legislative exercise of police power. 
 
 Cited in People ex rel. Annan v. Walsh, 7 X. Y. Crim. Rep. 226 (dissenting 
 opinion), on the extent of authority of legislature in the exercise of the police 
 power. 
 
 2 L. R. A. 387, Re McGRAW, 111 N. Y. 66, 19 X. E. 233. 
 
 Affirmed sub nom. Cornell University v. Fiske, 136 U. S. 176, 34 L. ed. 434, 
 10 Sup. Ct. Rep. 775. 
 Inclusion of "purchase." 
 
 Cited in Fosdick v. Hempstead, 29 X. Y. S. R. 546, 8 X. Y. Supp. 772, hold- 
 ing town with power to purchase and hold personalty may take by bequest. 
 General laws indicate policy as to mortmain. 
 
 Cited in Scott v. Ives, 22 Misc. 755, 51 X. Y. Supp. 49, and Amherst College 
 v. Ritch, 151 N. Y. 333, 37 L. R. A. 324, 45 N. E. 876, both holding such policy 
 appears in few general and many special acts; Re Lampson, 33 App. Div. 59, 
 53 N. Y. Sxipp. 531, holding special enactment to be looked to in absence of 
 general statute. 
 Forfeiture for taking- property over charter limit. 
 
 Cited in Lancaster v. Amsterdam Improvement Co. 140 N. Y. 586, 24 L. R. 
 A. 331, 35 X. E. 964, holding corporate deed presumed valid. 
 
289 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 387 
 
 Cited in note (5 L.R.A. 109) on sustaining trust where purposes separ- 
 able. 
 Devise in excess of limitation npon corporate property. 
 
 Cited in Norton v. House of Mercy, 41 (j. C. A. 463, 101 Fed. 389, stating 
 principle; Wood v. Hammond, 16 R. I. 118, 17 Atl. 324, holding corporation 
 cannot take as devisee in excess of charter limit; Brigham v. Peter Bent Brigham 
 Hospital, 126 Fed. 801; Phoenix v. Columbia College, 87 App. Div. 438, 84 N. Y. 
 Supp. 897, on gift to corporation in excess of amount which it is allowed to 
 take as being void as to the excess. 
 
 Cited in footnote to Joseph Bancroft & Sons Co. v. Bloede, 52 L. R. A. 
 734. which sustains power of cotton manufacturing company to purchase stock 
 in company manufacturing dyes used by former. 
 
 Cited in note (21 L. R. A. 793) on constitutionality of statutes restricting 
 contracts and business. 
 
 Distinguished in Hornberger v. Miller, 28 App. Div. 203, 50 N. Y. Supp. 
 1079, holding devise to corporation good as against objection of excess over 
 power to take, where excess not shown; Farrington v. Putnam, 90 Me. 423, 38 
 L. R. A. 346, 37 Atl. 652, holding bequest to incorporated charitable in- 
 stitution in excess of statutory limit not void, but voidable. 
 
 Disapproved in Hubbard v. Worcester Art Museum, 194 Mass. 283, 9 L.R.A. 
 (X.S.) 692. 80 X. E. 490, 10 A. & E. Ann Cas. 1025, holding a gift to a charitable 
 corporation in an amount in excess of the amount it is allowed to receive is good 
 against everyone except the state. 
 Power of corporation to acqnire property. 
 
 Cited in Hanna v. Kelsey Realty Co. 145 Wis. 281, 33 L.R.A. (N.S.) 361, 140 
 Am. St. Rep. 1075, 129 N. W. 1080, holding absolutely void, conveyance of realty 
 to foreign corporation which has not complied with statutory conditions of ac- 
 quiring property. 
 Review of surrogate's decision on undisputed facts. 
 
 Cited in Re Moulton, 32 N. Y. S. R. 642, 10 N. Y. Supp. 717, reviewing ques- 
 tions of fact which were before surrogate. 
 Who may question power to take devise. 
 
 Cited in House of Mercy v. Davidson, 90 Tex. 523, 39 S. W. 924, holding that 
 heirs may set up incapacity of devisee in will to accept devise; South & North 
 Ala. R. Co. v. Highland Ave. & Belt. R. Co. 119 Ala. 117, 24 So. 114, refusing spe- 
 cifically to enforce contract for property complainant incapacitated to hold. 
 
 Cited in notes (32 L.R.A. 297) on right of private persons to contest corporate 
 power to take or hold property; (60 Am. St. Rep. 320) on right of heirs to aasail 
 legacy to corporation. 
 
 Distinguished in Heiskell v. Chickasaw Lodge, No. 8, I. O. O. F. 87 Tenn. 
 686, 4 L. R. A. 706, 11 S. W. 825, holding that state only can question legal 
 capacity of corporation as trustee; Moskowitz v. Hornberger, 20 Misc. 562, 
 40 X. Y. Supp. 462, holding apparently legal devise to corporation not subject 
 to attack by purchaser from intermediate grantee. 
 
 Disapproved in Hanson v. Little Sisters of the Poor, 79 Md. 440, 32 L. R. A. 
 298, 32 Atl. 1052, and Re Stickney, 85 Md. 106, 35 L. R. A. 697, 60 Am. St. Rep. 
 308. 36 Atl. 654, both holding capacity of corporation as devisee, in excess of 
 charter limit, not to be questioned by heirs. 
 Liability for interest. 
 
 Cited as obiter in People ex rel. Cornell University v. Davenport, 117 N. 
 Y. 563, 23 N. E. 664, holding state only obligated to pay income from safe 
 investments. 
 
 L.R.A. Au. Vol I. 19. 
 
2 L.R.A. 387] L. R. A. CASES AS AUTHORITIES. 290 
 
 Residuary legacies. 
 
 Cited in Tyler v. Tallman, 29 R. I. 60, 68 Atl. 948, considering what would 
 pass under a residuary devise under terms of will. 
 Necessity of capable trustee for gift. 
 
 Cited in Fitchie v. Brown, 211 U. S. 335, 53 L. ed. 208, 29 Sup. Ct. Rep. 106, 
 holding the validity of a trust was not affected by whether or not the trustee 
 named in the will can act as such. 
 Equitable conversion. 
 
 Cited in note (7 Eng. Rul. Cas. 23) on equitable conversion of realty into per- 
 sonalty, and vice versa. 
 
 2 L. R. A. 405, BRADSTREET CO. v. GILL, 72 Tex. 115, 13 Am. St. Rep. 768, 
 9 S. W. 753. 
 
 question of agency determined. 
 
 Cited in Walsh v. Peterson, 59 Neb. 651, 81 N. W. 853, holding question 
 of agency for jury under instructions of court, where evidence disputed and 
 inference doubtful. 
 
 Distinguished in Olsen & Walke v. California Ins. Co. 11 Tex. Civ. App. 372, 
 32 S. W. 446, holding court to determine question of agency, where no plea 
 filed, for determining jurisdiction to render default judgment. 
 When agency exists. 
 
 Cited in English v. Mitchell Cattle Co. 8 Wyo. 90, 55 Pac. 310, and Harrison 
 v. Legore, 109 Iowa, 620, 80 N. W. 670, holding agency established by conduct, 
 irrespective of assertions; Norwood v. Alamo F. Ins. Co. 13 Tex. Civ. App. 480, 
 35 S. W. 717, holding agency not within contract of appointment, only provable 
 independently thereof, by showing acceptance. 
 
 Cited in note (23 L. R. A. 497) on who may be served with process in suit 
 against foreign corporation. 
 Mercantile rating: as libel. 
 
 Cited in note (25 L.R.A. (N.S.) 1021) on giving indefinite mercantile rating, or 
 refusal to give any, as libel. 
 Sufficiency of allegation in libel snit. 
 
 Cited in Brown v. Durham, 3 Tex. Civ. App. 250, 22 S. W. 868, holding 
 petition should specify libelous words of exhibits by direct allegation; Dunn v. 
 State, 43 Tex. Crim. 40, 63 S. W. 571 (dissenting opinion), majority holding 
 indictment showing threatening notice, alleged to be sent to frighten recip- 
 ient, sufficient without averments explanatory of drawings and language therein. 
 Necessity of alleging: damages. 
 
 Cited in Hirshfield v. Ft. Worth Nat. Bank, 83 Tex. 456, 15 L. R. A. 641, 
 29 Am. St. Rep. 660, 18 S. W. 743, holding petition for libel, not alleging spe- 
 cial damages, insufficient unless words actionable per se; Burton v. O'Neill, 6 
 Tex. Civ. App. 616, 25 S. W. 1013, holding special damages need not be al- 
 leged where alleged words libelous per se. 
 Parol evidence as to writing. 
 
 Cited in note (6 L. R. A. 43) on admissibility of parol evidence to show 
 meaning of words and phrases. 
 Privileged communications. 
 
 Cited in Mitchell v. Bradstreet Co. 116 Mo. 239, 20 L. R. A. 142, 38 Am. St. 
 Rep. 592, 22 S. W. 358, and Pol la sky v. Minchener, 81 Mich. 286, 9 L. R. A. 
 105, and footnote p. 102, 21 Am. St. Rep. 516, 46 N. W. 5, holding commercial 
 agency's false communications to subscribers generally not privileged; Runge 
 
291 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 408 
 
 v. Franklin, 72 Tex. 589, 3 L. R. A. 423, 13 Am. St. Rep. 833, 10 S. W. 721, 
 holding all proceedings in civil courts privileged as against suit for libel; 
 Missouri P. R. Co. v. Behee, 2 Tex. Civ. App. 109, 21 S. W. 384, holding employ- 
 er's false statement in communication for own business privileged where with- 
 out malice; Robinson v. Dun, 28 Ont. Rep. 24, holding the qualified privilege 
 of a commercial agency in publishing a report concerning a trader was destroyed 
 where evidence of want of reasonable care in collecting the information; Hunt v. 
 Fidelity Mut. L. Ins. Co. 167 Ala. 198, 51 So. 1000, on whether publication of 
 conviction of swindling mutual life insurance company in its own magazine sent 
 only to its policyholders is privileged. 
 
 Cited in footnotes to Douglass v. Daisley, 57 L. R. A. 475, which denies privi- 
 lege, as matter of law, to communication by commercial agency that assignor, 
 to secure indorser, had made assignment for creditors; Mitchell v. Bradstreet 
 Co. 20 L. R. A. 138, which holds voluntary publication by mercantile agency 
 of false statement that firm has assigned not privileged; Pollasky v. Micnhener, 
 9 L. R. A. 102, which holds false communication by commercial agency to unin- 
 terested members not privileged; Woodruff v. Bradstreet Co. 5 L. R. A. 555, 
 which holds publication that judgment recovered against merchant or trader 
 libelous: Conroy v. Pittsburgh Times, 11 L. R. A. 725, which holds privileged 
 communication one properly made, on proper occasion, from proper motive, on> 
 probable cause; Nissen v. Cramer, 6 L. R. A. 780, which holds relevant 
 words spoken by party to action during trial privileged. 
 
 Cited in notes (9 L.R.A. 621) on definition of "libel;" (20 L.R.A.(N.S.) 366) 
 on privilege as affected by extent of publication; (36 LR.A.(N.S.) 452) on privi- 
 lege of communications between principal and agent; (15 Am. St. Rep. 349) on 
 privileged newspaper libel; (104 Am. St. Rep. 115, 146) on what libelous state- 
 ments are privileged; (9 Eng. Rul. Cas. 82) as to what communications enjoy a 
 qualified privilege; (2 Brit. Rul. Cas. 216, 217) on report of mercantile agency as 
 a privileged communication. 
 Inference of malice from publication. 
 
 Cited in Coles v. Thompson, 7 Tex. Civ. App. 668, 27 S. W. 46, and St. James 
 Military Academy v. Gaiser, 125 Mo. 527, 28 L. R. A. 676, 46 Am. St. Rep. 
 502, 28 S. W. 851, holding malice to be implied from false publication. 
 
 Cited in note (15 Am. St. Rep. 337) on presumption of malice in newspaper 
 libel. 
 Evidence admissible In libel. 
 
 Cited in Foster-Milburn Co. v. Chinn, 134 Ky. 428, 34 L.R.A.(N.S.) 1140, 135 
 Am. St. Rep. 417, 120 S. W. 364, holding in an action of libel evidence of wit- 
 ness as to the effect the publication would have on the standing of complainant 
 was inadmissible. 
 
 Cited in note (35 L.R.A.(N.S.) 1121) on admissibility of opinion as to damaging 
 effect of libel or slander. 
 Locality of jurisdiction of state court over foreign corporation. 
 
 Cited in note (70 L.R.A. 698) on locality of jurisdiction of state court over 
 foreign corporation as determined by location of agent. 
 
 2 L. R. A. 408, STATE v. INTOXICATING LIQUORS, 76 Iowa, 243, 41 
 
 N. W. 6. 
 Intoxicating: liquors. 
 
 Cited in Com. v. Brelsford, 161 Mass. 63, 36 N. E. 677, holding within power 
 of legislature to define "intoxicating liquors;" State v. Colvin, 127 Iowa, 632, 
 103 X. W. 968, holding evidence inadmissible to show liquor proved to contain 
 
2 L.R.A. 408] L. R. A. CASES AS AUTHORITIES. 292 
 
 alcohol is not intoxicating; State v. Frederickson, 101 Me. 44, 6 L.R.A.(N.S.) 190, 
 115 Am. St. Rep. 295, 63 Atl. 535, 8 A. & E. Ann. Cas. 48, holding it immaterial 
 whether liquor is intoxicating in fact, if it comes within scope of forbidden 
 enumeration of statute enumerating liquors and declaring them intoxicating, 
 and sustaining power of legislature to enact such statute; State v. Wills, 154 Mo. 
 App. 612, 136 S. W. 25; State v. Martin, 230 Mo. 18, 139 Am. St. Rep. 628, 129 
 S. W. 931, holding intoxicating, beverage containing any alcohol; Luther v. 
 State, 83 Neb. 460, 20 L.R.A.(N.S.) 1150, 120 N. W. 125, holding statute regu- 
 lating sale of malt liquors not construed as meaning intoxicating malt liquors; 
 State v. York, 74 N. H. 127, 65 Atl. 685, 13 A. & E. Ann Cas. 116. holding it 
 unnecessary to allege in indictment and prove that liquor whose sale is forbidden 
 by statute is intoxicating; State v. Fargo Bottling Works Co. 19 N. D. 409, 26 
 L.R.A.(N.S.) 880, 124 N. W. 387, holding any liquor containing alcohol when 
 declared by the legislature to be an intoxicating liquor will be so regarded by 
 the courts whether or not its ordinary use will produce intoxication in ordinary 
 man; R. v. Bigelow, 41 N. S 502, as to when liquor intoxicating; State v. Walder, 
 83 Ohio St. 87, 93 N. E. 531, holding it unlawful to sell malt liquor in local 
 option county, whether intoxicating or not. 
 
 Cited in footnotes to Carl v. State, 4 L. R. A. 380, which holds medicinal bit- 
 ters containing alcohol intoxicating or not, according to other ingredients; 
 Com. v. Reyburg, 2 L. R. A. 415, which holds it question for jury whether 
 cider vinous or spirituous. 
 
 Cited in notes (6 L. R. A. 669) on beer as intoxicating liquor; (7 L. R. A. 
 297) on construction of statutes forbidding manufacture and sale of spirit- 
 uous liquors; (20 L. R. A. 645) on what liquors within statutory restrictions 
 as to sale of "spirituous," "vinous," "fermented," and other intoxicating li- 
 quors; (6 L.R.A.(N.S.) 187) on power of state to declare certain liquor intoxi- 
 cating irrespective of actual character. 
 
 2 L. R. A. 409, NASH v. BREWSTER, 39 Minn. 530, 41 N. W. 105. 
 Sales; wlien title passes. 
 
 Cited in Rail v. Little Falls Lumber Co. 47 Minn. 425, 50 N. W. 471, hold- 
 ing actual delivery not necessary to pass title to chattels designated in con- 
 tract; Mackellar v. Pillsbury, 48 Minn. 401, 51 N. W. 222, holding title passes 
 on sale of certain number of articles out of greater number, if parties so in- 
 tend, without actual separation; Loud v. Pritchett, 104 Ga. 653, 30 S. E. 870, 
 holding sale of standing timber, to be felled by vendee, passes title; Jennison 
 v. Thompson, 68 Minn. 335, 71 N. W. 380, holding whether title passes before 
 delivery of wheat to be taken from greater quantity question for jury; O'Keefe 
 v. Leistikow, 14 N. D. 360, ]04 N. W. 515, 9 A. & E. Ann Cas. 25, holding title 
 to flax not prevented from passing, though unseparated from other flax with 
 which mixed; Creelman Lumber Co. v. De Lisle, 107 Mo. App. 628, 82 S. W. 205, 
 holding title to lumber passed when stacked, estimated, marked with "buyer's 
 initials and payment made on estimate. 
 
 Cited in footnotes to Tyler Lumber Co. v. Charlton, 55 L.R.A. 301, which 
 holds title does not pass by acceptance of offer to sell lumber piled at mill to 
 be inspected by common employee; Feeley v. Boyd, 65 L.R.A. 943, which holds 
 immediate delivery followed by actual and continued change of possession of 
 fruit in bins shown by purchaser sending representative the same evening to take 
 possession, and sending man the next morning to prepare for shipment. 
 
 Cited in note (26 L.R.A.(N.S.) 18, 22, 56, 59) on sufficiency of selection or 
 .designation of goods sold out of larger lot. 
 
293 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 411 
 
 Seed-grain notes: rights of bolder. 
 
 Cited in Scofield v. National Elevator Co. 64 Minn. 531, 67 N. W. 645, 
 holding owner of seed-grain note may, upon allegation of facts, maintain action 
 for conversion against purchaser; Warder-Bushnell & G. Co. v. Minnesota & 
 
 D. Elevator Co. 44 Minn. 391, 46 N. W. 773, holding payee of seed-grain note, 
 furnishing grain covered by maker's chattel mortgage, has valid lien on crop; 
 Smith v. Roberts, 43 Minn. 343, 46 N. W. 336, holding ante-dated seed-grain 
 note given after grain delivered not valid lien on crop; Endreson v. Larson, 101 
 Minn. 422, 118 Am. St. Rep. 631, 112 N. W. 628, holding title of payee complete 
 upon execution of note and delivery of grain shortly thereafter. 
 
 2 L. R. A. 411, NEW YORK & C. GRAIN STOCK & EXCHANGE v. CHICAGO 
 
 BD. OF TRADE, 127 111. 153, 11 Am. St. Rep. 107, 19 N. E. 855. 
 Compulsory pnblc service without discrimination. 
 
 Cited in Willoughby v. Chicago Junction R. & U. S. Co. 50 N. J. Eq. 695, 
 25 Atl. 277, holding private corporation charged with public duty obliged only 
 to serve all alike, at uniform rate; Board of Trade v. C. B. Thompson Com- 
 mission Co. 103 Fed. 903, and Board of Trade v. Hadden-Krull Co. 109 Fed. 
 706, holding "public interest," entitling applicants to receive quotations without 
 unjust discrimination, does not deprive compiler of property right prior to 
 publication; Inter-Ocean Pub. Co. v. Associated Press, 184 111. 450, 48 L. R. 
 A. 574, 75 Am. St. Rep. 184, 56 N. E. 822, holding private news gathering corpo- 
 ration, having devoted its business to public use, cannot discriminate against 
 purchasers of news; Board of Trade v. Riordan, 94 111. App. 308, holding board, 
 in disciplining member, cannot deprive him of use of market quotations; Kerz 
 v. Galena Water Co. 139 111. App. 604, holding city water, gas, electric light, 
 street car and like corporations bound to treat patrons without unjust discrimi- 
 nation; Western U. Teleg. Co. v. State, 165 Ind. 501, 3 L.R.A.(N.S.) 158, 76 N. 
 
 E. 100, 6 A. & E. Ann. Gas. 880, holding it duty of telegraph company to supply 
 elevator company with continuous quotations of board of trade without discrimi- 
 nation, and upon same terms exacted of others. 
 
 Cited in footnote to State v. Edwards, 25 L. R. A. 504, which holds valid 
 limitation of amount of toll for grinding. 
 
 Cited in notes (31 L. R. A. 804) on public regulation as to operation of 
 electric lines; (15 L. R. A. 322) on compulsory service by party whose busi- 
 ness it is to serve public. 
 
 Distinguished in American Live Stock Commission Co. v. Chicago Live Stock 
 Exchange, 143 111. 239, 18 L. R. A. 200, 36 Am. St. Rep. 385, 32 N. E. 274, 
 holding courts will not interfere with private business affecting public inter- 
 ests through its magnitude, but never devoted to public use; State ex rel. 
 Star Pub. Co. v. Associated Press, 159 Mo. 463, 51 L. R. A. 169, 81 Am. St. Rep. 
 368, 60 S. W. 91, holding business of news gathering not impressed with 
 public use, making undiscriminating service compulsory; Re Renville, 46 App. 
 Div. 44, 61 N. Y. Supp. 549, holding telegraph company not required to furnish 
 quotations furnished to it by stock exchange for specific purpose; Dickinson v. 
 Chicago Bd. of Trade, 114 111. App 305, sustaining expulsion of member of board 
 of trade for violating rule against charging less than specified rate of commis- 
 sion; Board of Trade v. Christie Grain & Stock Co. 198 U. S. 251, 49 L. ed. 1039, 
 25 Sup. Ct. Rep. 637, holding that though quotations of board of trade are 
 clothed with public use, persons are not entitled to get and use them. 
 
 Limited in Christie Street Commission Co. v. Board of Trade, 92 111. App. 
 606, 94 111. App. 237, holding equity will not compel furnishing of market 
 quotations, though impressed with public interest, for unlawful purpose; Cen- 
 
2 L.R.A. 411] L. R. A. CASES AS AUTHORITIES. 294 
 
 tral Stock & G. Exchange v. Board of Trade, 196 111. 409, 63 N. E. 740, holding 
 board of trade cannot be compelled to furnish quotations used in unlawful busi- 
 ness. 
 
 Regulative power over business affected with pnbljc Interest. 
 
 Cited in Ratcliff v. Wichita Union Stock-Yards Co. 74 Kan. 10, 6 L.R.A. (X.S.) 
 841, 118 Am St. Rep. 298, 86 Pac. 150, 10 A. & E. Ann. Cas. 1016, holding stock- 
 yards business clothed with public interest and subject to regulation and control 
 by state; State v. Duluth Bd. of Trade, 107 Minn. 522, 23 L.R.A. (N.S.) 1269, 121 
 N. W. 395, holding legislature may require persons selling grain on commission 
 to take out license and execute bond for protection of persons dealing with them; 
 People v. Steele, 231 111. 347, 14 L.R.A.(X.S.) 366, 121 Am. St. Rep. 321, 83 X E. 
 236, holding act to prohibit sale of tickets for more than price printed thereon 
 for theaters, circuses and places of amusement unconstitutional. 
 
 Cited in note (62 Am. St. Rep. 291, 295) on regulation of rates. 
 Property rights in market quotations. 
 
 Cited in note (7 L.R.A.(N.S.) 894, 898) on property rights in market quota- 
 tions. 
 
 2 L. R. A. 415, COM. v. REYBURG, 122 Pa. 299, 16 Atl. 351. 
 Liquors comprehended by laws agrainst sale. 
 
 Cited in Luther v. State, 83 Neb. 460, 20 L.R.A.(N.S.) 1150, 120 X. W. 125, 
 holding statute regulating sale of malt liquors not to be construed as meaning 
 intoxicating malt liquors; Com. v. Wenzel, 24 Pa. Super. Ct. 468, holding defend- 
 ant who was conclusively proved to have sold drink containing alchohol, was 
 guilty of selling drink containing admixture of spirituous, vinous, malt, or 
 brewed liquors without license. 
 
 Cited in notes (9 L. R. A. 814) on construction of Pennsylvania liquor laws; 
 (20 L. R. A. 646, 649) on what liquors within statutory restrictions as to sale 
 of "spirituous," "vinous," "fermented" and other intoxicating liquors; (12 Am. 
 St. Rep. 353) on intoxicating liquors. 
 Cider. 
 
 Cited in Re McTaggart's Bottler's License, 32 Pa. Super Ct. 566, on right of 
 unlicensed person to sell cider and perry, which by fermentation has become 
 vinous or spirituous. 
 Questions of fact. 
 
 Cited in State v. Parker, 139 N. C. 588, 51 S. E. 1028, holding whether "drinks" 
 sold contained any alcohol question for jury; Com. v. Beldham, 15 Pa. Super. 
 Ct. 37, holding whether liquor sold without license was admixture of spirituous, 
 vinous, malt or brewed liquors in disguised form question for jury. 
 Prosecutor's liability for costs; when question for court. 
 
 Cited in Com v. Kocher, 8 Del. Co. Rep. 574, 8 Northampton Co. Rep. 341, 
 holding court may withdraw from jury matter of costs, whenever it appears 
 prosecutor ought not to pay them. 
 
 2 L. R. A. 417, MONTROSE PICKLE CO. v. DODSON & H. MFG. CO. 76 Iowa. 
 
 172, 14 Am. St. Rep. 213, 40 N. W. 705. 
 Garnishment. 
 
 Cited in Shaver Wagon and Cart Co. v. Halsted, 78 Iowa, 736, 43 N. W. 
 623, holding relation of creditor and debtor does not exist between garnisher 
 and assignee of defendant's insurance policies; Pittsburgh, C. C. & St. L. R. Co. 
 F. Cox, 36 Ind App. 297, 114 Am. St. Rep. 377, 73 N. E. 120, holding carrier 
 exempted from liability as garnishee as regards property in its possession within 
 
295 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 418 
 
 state but in transit to place without state; Buckeye Pipe Line Co. v. Fee, 62 
 Ohio St. 562, 78 Am. St. Rep. 743, 57 N. E. 446, holding property outside state 
 not subject to garnishment; Davis v. Cleveland, C. C. & St. L. R. Co. 146 Fed. 
 412, holding instrumentalities of interstate traffic not subject to execution or 
 attachment under state laws. 
 
 Cited in notes (28 L.R.A 602) on liability of carriers to garnishment of 
 property in transit; (50 Am. St. Rep. 466) on garnishment of common carriers; 
 (69 Am. St. Rep. 126) on situs of debts for purposes of garnishment and of prop- 
 erty in transit in hands of carriers. 
 
 Distinguished, in effect, in German Bank v. American F. Ins. Co. 83 Iowa, 
 496, 32 Am. St. Rep. 316, 50 N. W. 53, holding courts of another state may ac- 
 quire jurisdiction in garnishment of debt owing by nonresident. 
 
 2 L. R. A. 418, MINNESOTA LOAN & T. CO. v. BEEBE, 40 Minn. 7, 41 
 N. W. 232. 
 
 Followed without special discussion in Northern Trust Co. v. Jackson, 60 
 Minn. 116, 61 N. W. 908. 
 
 Power of legislature to determine security to be required of corpora- 
 tions acting 1 as trustees. 
 
 Cited in Roane Iron Co. v. Wisconsin Trust Co. 99 Wis. 275, 67 Am. St. Rep. 
 856, 74 N. W. 818, holding question of security required is one of legislative 
 policy; Re Kilborn, 5 Cal. App. 164, 89 Pac. 985, holding it is for the legislature 
 to say what the security from the trust company shall be, and its kind, charac- 
 ter and extent. 
 Corporation as guardian, trustee, etc.; constitutionality of act. 
 
 Cited in State ex rel. Higby v. Higby Co. 130 Iowa, 71, 114 Am. St. Rep. 409, 
 106 X. W. 382, holding, at common law, a corporation could not hold land or 
 other property as trustee. 
 
 Cited in note (48 L. R. A. 588) on granting special or exclusive privileges 
 to surety and trust companies. 
 
 Distinguished in Continental Trust Co. v. Peterson, 76 Neb. 415, 107 N. W. 
 786, holding a corporation cannot act as an administrator under the laws of 
 Nebraska. 
 Constitutional requirement that subject of act be expressed in title. 
 
 Cited in Ek v. St. Paul Permanent Loan Co. 84 Minn. 249, 87 N. W. 844, 
 Tiolding such provision to be construed liberally, with reference to purpose in- 
 tended; Winters v. Duluth, 82 Minn. 132, 84 N. W. 788, holding act consti- 
 tutional if subjects embraced therein are naturally connected with subject 
 expressed in title; State ex rel. Olsen v. Board of Control, 85 Minn. 174, 88 
 X. W. 533, and Allen v. Pioneer Press Co. 40 Minn. 119, 3 L. R. A. 533, 12 Am. 
 St. Rep. 707, 41 N. W. 936, holding provisions of act, germane to subject ex- 
 pressed and proper to accomplishment of purpose indicated in title, constitu- 
 tional; State ex rel. Olsen v. Board of Control, 85 Minn. 174, 88 N. W. 533. 
 holding the provision of the constitution that "no law shall embrace more than 
 one subject which shall be expressed in its title" is to be liberally construed. 
 
 Cited in note (2 L. R. A. 789) on title of statute must fairly suggest sub- 
 jects dealt with in act. 
 Probate-court proceedings not collaterally assailable. 
 
 Cited in Lyon v. Gleason, 40 Minn, 435, 42 N. W. 286. holding probate of will 
 conclusive evidence in collateral action of testator's death and of devise; Den- 
 nis v. Bint, 122 Cal. 42. 68 Am. St. Rep. 17, 54 Pac. 378, holding letters of ad- 
 ministration conclusive in collateral action as to qualification and authority of 
 
2 L.R.A. 418] L. R. A. CASES AS AUTHORITIES. 296 
 
 administrator; Wallace v. Tinney, 145 Iowa, 485, 139 Am. St. Rep. 448, 122 N. 
 W. 936, holding that appointment of guardian of property of nonresident lunatic 
 cannot be collaterally attacked. 
 Necessity of guardian's bond. 
 
 Cited in note (33 L. R. A. 765) on necessity of bond by domestic guardian 
 appointed by court to make acts valid. 
 Effect of inquisition as to insanity. 
 
 Cited in note (19 L. R. A. 493) on effect of inquisition to establish insanity. 
 
 2 L. R. A. 420, ROCKHOLD v. CANTON MASONIC MUT. BENEV. ASSO. 
 
 (111.) 19 N. E. 710. 
 Ultra vires acts of corporations. 
 
 Cited in Corey v. Sherman (Iowa) 32 L. R. A. 512, 60 N. W. 232, holding in- 
 surance contract not within terms of articles of incorporation of benefit as- 
 sociation, void; Parke v. Welch, 33 111. App. 194, holding that person outside 
 any class named as beneficiary in benefit certificate is not defeated by doctrine 
 of ultra vires. 
 
 Cited in notes (6 L. R. A. 290) on corporate power to contract; doctrine 
 of ultra vires; (12 L. R. A. 168) on estoppel of corporation to deny liability 
 on its contracts. 
 Mutual benefit associations. 
 
 Cited in Clark v. Schromeyer, 23 Ind. App. 567, 55 N. E. 785, holding bene- 
 fit certificate, unilateral contract of insurance, terminable at option of holder. 
 
 Cited in notes (4 L. R. A. 382) on benefit association; enlarged powers con- 
 ferred by statute; (7 L. R. A. 189) on transfer of mutual benefit certificates; 
 (38 L. R. A. 49, 50) as to whether a benefit association is an insurance company, 
 under statutes exempting benevolent societies. 
 
 2 L. R. A. 422, ATCHISON, T. & S. F. R. CO. v. SCHNEIDER, 127 111. 144, 
 
 20 N. E. 41. 
 Jurisdiction of appeal. 
 
 Cited in Metropolitan West Side Elev. R. Co. v. Siegel, 161 111. 644, 44 N. E. 
 276, holding not necessary that freehold be involved to give supreme court 
 jurisdiction of appeal. 
 
 Cited in note (15 Am. St. Rep. 780) on review of evidence by appellate court. 
 Damages in eminent domain. 
 
 Cited in Blincoe v. Choctaw, O. & W. R. Co. 16 Okla. 298, 4 L.R.A. (N.S.) 895, 
 83 Pac. 903, 8 A. & E. Ann. Cas. 689, holding recovery may be had in condem- 
 nation proceedings for injury to personal property by reason of condemnation 
 of real estate. 
 
 Cited in notes (8 L. R. A. 124) on measure of damages on condemnation for 
 public use; (51 L. R. A. 330) on damages in eminent domain cases as affected 
 by loss of profits from suspension of business while moving; (4 L.R.A. (N.S.) 
 890) on injury to, or expense of removing personalty, as element of damage for 
 taking real estate; (13 Am. St. Rep. 242) on damages for property taken under 
 power of eminent domain; (22 Am. St. Rep. 51) on evidence of damages in 
 eminent domain. 
 
 Distinguished in Braun v. Metropolitan West Side Elev. R. Co. 166 111. 438, 
 46 N. E. 974, holding only in exceptional cases cost of removal of business an 
 element of damage. 
 Right to possession in eminent domain on giving security. 
 
 Cited in Davis v. Northwestern Elev. R. Co. 170 111. 605, 48 N. E. 1058, 
 
297 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 425 
 
 holding petitioner may, upon filing bond, enter into possession of land sought 
 to be condemned pending appeal; Johnson v. Metropolitan West Side Elev. 
 R. Co. 160 111. 479, 45 N. E. 680, holding where judgment for damages has been 
 affirmed, court will not reverse decree dissolving injunction against possession 
 pending appeal; Ex parte Reynolds, 52 Ark. 338, holding act authorizing entry 
 upon deposit of security fixed by court pending condemnation proceedings not 
 in conflict with constitutional provision that no property be appropriated un- 
 til compenastion ascertained by jury; Caldwell v. Highway Comrs. 249 111. 376, 
 94 X. E. 490, holding that highway commissioners cannot open road until com- 
 pensation is paid to landowners; Prairie du Rocher v. Schoening-Koenigsmark 
 Mill. Co. 251 111. 343, 96 N. E. 249, holding that petitioner, if appeal is taken 
 by either party, may enter on property, on giving required bond without paying 
 or depositing compensation ascertained. 
 Personal view as basis of verdict. 
 
 Cited in Peoria Gaslight & Coke Co. v. Peoria Terminal R. Co. 146 111. 383, 
 21 L. R. A. 377, 34 N. E. 550, holding jury in condemnation procedings cannot 
 base estimate solely upon view of premises, disregarding testimony; Chicago 
 v. Spoor, 91 111. App. 488 (approved by dissenting judge in 190 111. 366, 60 N. E. 
 540), holding that verdict supported by personal view need not wholly har- 
 monize with testimony; Stockton v. Chicago, 136 111. 436, 26 N. E. 1095; Met- 
 ropolitan West Side Elev. R. Co. v. Johnson, 159 111. 439, 42 N. E. 871; Sani- 
 tary District v. Loughran, 160 111. 365, 43 N. E. 359, holding verdict in 
 condemnation proceedings, rendered upon conflicting evidence and view of 
 premises, sustainable; Chicago & S. L. R. Co. v. Mines, 221 111. 457, 77 N. E. 
 898, holding jury in condemnation proceedings cannot disregard evidence heard 
 in open court and fix damages on their view of premises alone; Payson v. Milan, 
 144 111. App. 208, holding jury may not render verdict based on view though 
 they believe they have formed more accurate judgment therefrom than from 
 evidence in open court; Shreveport v. Youree, 114 La. 186, 38 So. 135, 3 A. & E. 
 Ann. Cas. 300, on disregard by jury of testimony in appropriation case and fix- 
 ing of value according to their personal opinions and information; Zanesville, 
 M. & P. R. Co. v. Bolen, 76 Ohio St. 388, 11 L.R.A.(N.S.) 1111, 81 N. E. 681, 
 10 A. & E. Ann. Cas. 658, holding impressions made on minds of jurors by view 
 of premises is not evidence in cause, hence reviewing court may pass upon 
 weight of evidence, though bill of exceptions only contains evidence given at 
 trial. 
 
 Cited in note (42 L. R. A. 389, 390) on nature and effect of view by jury; 
 theory that view must be supported by evidence. 
 
 2 L. R. A. 425, LOCKWOOD v. LOCKWOOD, 51 Hun, 337, 3 N. Y. Supp. 887. 
 Record of exemplified copy of probate of foreigrn will. 
 
 Cited in Meiggs v. Hoagland, 68 App. Div. 187, 74 N. Y. Supp 234, holding 
 record of exemplified copy of probate of foreign will only creates rebuttable 
 presumption of due execution; Re Nash, 37 Misc. 708, 76 N. Y. Supp. 453, 
 holding foreign will and copy of probate proceedings, not conformed to state 
 law, not entitled to be recorded; Meiggs v. Hoagland, 41 Misc. 7, 83 N. Y. Supp. 
 603, holding record of foreign will, not showing attestation in statutory man- 
 ner, does not show title to land in devisee; Re Hagar, 48 Misc. 41, 96 N. Y. 
 Supp. 96, holding execution of foreign will in conformity with state laws must 
 be established in manner pointed out by state law in order to entitle it to 
 record. 
 
 Cited in notes (48 L. R. A. 133) on effect in various states of probate of 
 
2 L.R.A. 425] L. R. A. CASES AS AUTHORITIES. 298 
 
 will in another state; (48 L. R. A. 133) on effect of probate in another 
 state of will of real estate. 
 
 Distinguished in Bradley v. Krydop, 128 App. Div. 202, 112 N. Y. Supp. 609, 
 holding record of copy of record of foreign will and proofs thereof in foreign 
 court is presumptive evidence of such will and execution thereof if it appears 
 will was executed in conformity with state laws, though not so probated. 
 Conflict of laws as to wills. 
 
 Cited in note (2 L.R.A. ( N.S. ) 426) on conflict of laws as to wills. 
 
 2 L. R. A. 426, BARNARD v. KNOX COUNTY, 37 Fed. 563. 
 Indebtedness exceeding: constitutional limit. 
 
 Cited in Rauch v. Chapman, 16 Wash. 579, 36 L. R. A. 411, 58 Am. St. Rep. 
 52, 48 Pae. 253, holding county warrants issued to meet indebtedness imposed 
 by Constitution or legislature in connection with maintenance of county 
 government valid, though exceeding debt limit; Hopkins County v. St. Bernard 
 Coal Co. 114 Ky. 158, 70 S. W. 289, holding words of constitution "no county 
 shall be authorized or permitted to become indebted" do not refer to necessary 
 expenses of governmental functions of county but to optional obligations. 
 
 Cited in footnotes to Barnard v. Knox County, 13 L. R. A. 244, which holds 
 limitation on county indebtedness applicable to books and stationery for 
 county clerk's office; Jay County v. Taylor, 7 L. R. A. 160, which holds em- 
 ployment of legal adviser for term extending beyond terms of county commission- 
 ers employing him invalid. 
 
 Cited in notes (23 L. R. A. 403, 404) on what constitutes "indebtedness" 
 within constitutional provision; (37 L.R.A. (N.S.) 1079, 1088, 1090) on creation 
 of indebtedness within the meaning of debt limit provisions; (44 Am. St. Rep. 
 235 ) on what is municipal indebtedness within prohibition against. 
 . Disapproved in Barnard v. Knox County, 105 Mo. 387, 13 L. R. A. 246, 16 
 S. W. 917, holding county warrant issued for indebtedness in excess of con- 
 stitutional limit void, though incurred for necessary stationery and supplies. 
 
 2 L. R. A. 428, NATIONAL BANK v. DORSET MARBLE CO. 61 Vt. 106. 17 
 
 Atl. 42. 
 Indorsement in blank Before issne. 
 
 Cited in Ballard v. Burton, 64 Vt. 396, 16 L. R. A. 667, 24 Atl. 769, holding 
 bank director indorsing in blank new certificate of deposit issued by bank on its 
 request for time liable as joint maker; Young v. Sehon, 53 W. Va. 136, 62 L. 
 R. A. 505, 97 Am. St. Rep. 970, 44 S. E. 136, holding person making loan on 
 non-negotiable note, indorsed by promisee and another, may treat them as 
 comakers or guarantors; Salisbury v. First Nat. Bank, 37 Neb. 876, 40 Am. St. 
 Rep. 527, 56 N. W. 727, holding notice of nonpayment at maiurity not nec- 
 essary to hold indorsers in blank before issue. 
 After issue. 
 
 Cited in Bowler v. Braun, 63 Minn. 35, 56 Am. St. Rep. 449. 65 N. W. 124, 
 holding parol evidence inadmissible, as against subsequent holder, to vary lia- 
 bility as second indorser of party signing in blank below payee; Lyndon Sav. 
 Bank v. International Co. 75 Vt. 232, 54 Atl. 191, holding indorser of note in 
 blank, on back, after execution, assumes, prima facie, obligation of a maker ; 
 Lyndon Sav. Bank v. International Co. 78 Vt. 178, 112 Am. St. Rep. 900, 62 Atl. 
 50. holding persons who signed overdue note in blank were joint makers 
 Negotiability. 
 
 Cited in footnote to Witty v. Michigan Mut. L. Ins. Co. 8 L. R. A. 365, which 
 holds note negotiable although blank in body as to amount and place of payment. 
 
299 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 434 
 
 2 L. R. A. 429, RANKIN'S APPEAL, 1 Monaghan (Pa.) 308, 16 Atl. 82. 
 Right of tenant for life to income from mine*. 
 
 Cited in Koen v. Bartlett, 41 W. V a. 567, 31 L. R. A. 130, 56 Am. St. 
 Rep. 884, 23 S. E. 664, holding life tenant entitled to product of oil or 
 gas wells open, or lawfully opened, during tenancy. 
 
 Cited in note (36 L.R.A.(N.S.) 1102, 1103) on mineral rights of life tenant. 
 Cnrtesy. 
 
 Cited in notes (7 L.R.A. 694) on entry to establish title as tenant by curtesy; 
 (112 Am. St. Rep. 594) on tenancy by the curtesy; (128 Am. St. Rep. 476, 485 } 
 on nature and existence of estates of tenancy by the curtesy. 
 Rights incidental to grant of mine. 
 
 Cited in Ingle v. Bottoms, 160 Ind. 78, 66 N. E. 160, sustaining right of 
 lessee of coal mine to construct railroad switch thereto. 
 
 2 L. R. A. 434, BAKER v. STEWART, 40 Kan. 442, 10 Am. St. Rep. 213, 19 
 
 Pac. 904. 
 Tenancy by entirety. 
 
 Approved in Shinn v. Shinn, 42 Kan. 7, 4 L. R. A. 226, 21 Pac. 813, holding 
 judgment for alimony not encumbrance upon land held by parties thereto in en- 
 tirety. 
 
 Cited in Simons v. McLain, 51 Kan. 160, 32 Pac. 919, holding estates by 
 joint tenancy, with accompanying right of survivorship, to exist in Kansas prior 
 to chap. 203, Laws 1891, abolishing survivorship; Xoble v. Teeble, 58 Kan. 400, 
 49 Pac. 598, holding prior to 1891, devise to daughter-in-law "and her chil- 
 dren," created joint tenancy; Boyer v. Sims, 61 Kan. 596, 60 Pac. 309, holding 
 surviving trustee in joint tenancy entitled to maintain ejectment in his own 
 name; Wilson v. Johnson, 4 Kan. App. 751, 46 Pac. 833, holding consent of 
 husband to devise by wife of land held "as tenant in common" does not 
 operate to create tenancy in common in land held in entirety; Reynolds v. 
 Strong, 82 Hun, 203. 31 N. Y. Supp. 329, holding widow entitled to whole estate 
 as tenant by the entirety of property conveyed to husband and wife; Re Lewis, 
 S5 Mich. 342, 24 Am. St. Rep. 94, 48 N. W. 580, holding tenancy by entirety 
 unarl'octed by divorce; Helvie v. Hoover, 11 Okla. 694, 69 Pac. 958, holding hus- 
 band and wife tenants in common of real estate conveyed to them; McNeeley v. 
 South Penn Oil. Co. 52 W. Va. 627, 62 L. R. A. 569, 44 S. E. 508, holding 
 conveyance to husband and wife does not create estate by entirety, under stat- 
 utes abolishing survivorship in such estates, and relating to married women's 
 separate property. 
 
 Cited in footnotes to Mittel v. Karl, 8 L. R. A. 655, which holds life estate 
 with fee to survivor passes by deed to husband and wife, and to survivor in his 
 own right; Shinn v. Shinn, 4 L. R. A. 224, which holds judgment for alimony 
 encumbrance on land held by entirety; Donahue v. Hubbard, 14 L. R. A. 123, 
 which holds husband's title as tenant by entirety may be conveyed to wife 
 through third person; Thornburg v. Wiggins, 22 L. R. A. 42, which holds- 
 tenancy by entirety not created by conveyance to husband and wife "in joint 
 tenancy;" Re Albrecht, 18 L. R. A. 329, which denies tenancy by entirety in 
 bond and mortgage to husband and wife. 
 
 Cited m notes (12 L. R. A. 514) on definition of tenancy by entirety; (13 
 L. R. A. 326) on attitude of courts towards estates by entirety; (30 L. R, A. 
 314) on where and to what extent estate exists; (30 L. R. A. 324) on crea- 
 tion of estate by limitation to husband and wife as tenants in common; (30 L. 
 R. A. 330) on disposition or encumbrance of entirety property. 
 
2 L.R.A. 434] L. R. A. CASES AS AUTHORITIES. 300 
 
 Effect of statutes on estate by entirety. 
 
 Cited in Howard v. Schneider, 10 Kan. App. 139, 62 Pac. 435, holding stat- 
 ute abolishing "survivorship in joint tenancy" ineffectual as to estates by en- 
 tirety; Stewart v. Thomas, 64 Kan. 514, 68 Pac. 70, holding statute abolishing 
 "survivorship in joint tenancy" applies to tenancy by entirety, though not 
 named in title of act; Stilphen v. Stilphen, 65 N. H. 139, 23 Atl. 79, holding 
 statute enabling married woman to hold property as if single abolished only 
 after-acquired estates by entirety; Holmes v. Holmes, 70 Kan. 892, 79 Pac. 163, 
 holding title of surviving husband not affected by act abolishing survivorship 
 passed before death of wife; Frost v. Frost, 200 Mo. 481, 118 Am. St. Rep. 689, 
 98 S. W. 527, on survival of estates in entirety as at common law in spite of 
 legislation tending to destroy unity of husband and wife. 
 
 Cited in notes (8 L. R. A. 407) on construction of Indiana Code, 5119, in 
 respect to married woman's rights; (30 L. R. A. 316) on construction of stat- 
 utes as to existence and extent of estate. 
 
 Disapproved in Green v. Cannady, 77 S. C. 198, 57 S. E. 832, holding married 
 woman may become tenant in common with husband in property upon grant to 
 both, since separate estate legislation destroys unity of husband and wife as to 
 property rights. 
 Rights of married women. 
 
 Cited in Harrington v. Lowe, 73 Kan. 21, 4 L.R.A. (N.S.) 557, 84 Pac. 570, 
 holding that in Kansas coverture affords no ground for declaring married wom- 
 an's contract invalid, though she possesses no separate estate or separate trade 
 or business. 
 
 2 L. R. A. 444, UNITED STATES v. TOZER, 37 Fed. 635. 
 
 Charge to jury in 39 Fed. 369. 
 
 Appeal from judgment of conviction in 4 Inters. Com. Rep. 245, 52 Fed. 
 917. 
 
 Discriminations. 
 
 Cited in Armour Packing Co. v. United States, 14 L.R.A.(N.S.) 413, 82 C. C. 
 A. 135, 153 Fed. 17, holding particular device by which concession and trans- 
 portation obtained not essential ingredient of offense of obtaining concession. 
 
 Cited in footnote to Fitzgerald v. Grand Trunk R. Co. 13 L. R. A. 70, which 
 holds no vested right in law existing when contract as to interstate transpor- 
 tation made. 
 
 Cited in notes (4 L. R. A. 332) on justification of discrimination by carrier; 
 (12 L. R. A. 436) on rates of freight in long and short hauls. 
 Liability of employee. 
 
 Cited in Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 19 L. R. A. 390, 
 54 Fed. 736, holding executive of engineers' union while employee bound by 
 mandatory injunction to carry interstate freight. 
 
 2 L. R. A. 447, BUTTERFIELD v. BOSTON, 148 Mass. 544, 20 N. E. 113. 
 Negligence as to gates and guards. 
 
 Cited in footnote to Feeney v. Long Island R. Co. 5 L. R. A. 544, which 
 holds railroad company liable for negligence of gateman. 
 Municipal liability as to bridges and streets. 
 
 Cited in Lincoln v. Boston, 148 Mass. 580, 3 L. R. A. 258, 12 Am. St. Rep. 
 601, 20 N. E. 329, holding city not liable for injuries resulting from firing of 
 cannon on Boston Common under license of authorities; Daly v. New Haven, 
 69 Conn. 649, 38 Atl. 397, holding liability of city for negligence in maintenance 
 or operation of bridge purely statutory. 
 
301 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 449 
 
 Cited in notes (9 L.R.A. 208) on municipal liability for acts or omissions of 
 its agents; (19 L.R.A. (N.S.) 1178) on liability of municipality for negligence 
 of bridge tender; (20 Am. St. Rep. 868) on municipal liability for negligence 
 of officer. 
 
 Distinguished in Stephani v. Manitowoc, 89 Wis. 471, 62 N. W. 176, holding 
 city liable for death resulting from unprotected drawbridge; Naumburg v. Mil- 
 waukee, 77 C. C. A. 67, 146 Fed. 649, holding management of bridge corporate, 
 not governmental, duty, and negligence of bridge tender negligence of city. 
 Liability for acts in performance of public duty. 
 
 Cited in Moynihan v. Todd, 188 Mass. 305, 108 Am. St. Rep. 473, 74 N. E. 367, 
 holding party liable for injury by personal act of misfeasance, though in per- 
 formance of public duty. 
 
 2 L. R. A. 448, COVENY v. MCLAUGHLIN, 148 Mass. 576, 20 N. E. 165. 
 Contingent remainders to "surviving" or similarly described persona. 
 
 Cited in Hills v. Barnard, 152 Mass. 72, 9 L. R. A. 217, 25 N. E. 96, holding 
 devise to nephews living on son's death in equal shares, "the issue of any de- 
 ceased legatee to take parent's share," vested per capita in nephews alive at 
 son's death, and in issue of deceased nephews by right of representation; 
 Bigelow v. Clap, 166 Mass. 91, 43 N. E. 1037, holding testamentary provi- 
 sion for equal division among nephews and grandnephews, "who may then be 
 living," on death of daughter, entitles nephews and grandnephews to share 
 per capita alone; Pulse v. Osborn, 30 Ind. App. 633, 64 N. E. 59, construing 
 devise to surviving grandchildren should first taker die before them as meaning 
 those surviving first taker; Lawrence v. Phillips, 186 Mass. 322, 71 N. E. 541, 
 holding words "surviving children" in will referable to those surviving at death 
 of one of other children and not to grandchildren, where remainder in case of 
 child's death without issue was to surviving children; Clarke v. Fay, 205 Mass. 
 231, 27 L.R.A. (N.S.) 458, 91 N. E. 328, holding in a devise to "such child's lawful 
 issue then living" the words "then living" referred to the death of the child and 
 not of the testator; Sias v. Chase, 207 Mass. 375, 93 N. E. 802, holding that under 
 gift to survivors of legatees of remainder of trust fund, income of which is given 
 to widow for life, survivors are those living at death of widow. 
 
 Cited in footnote to Allison v. Allison, 63 L.R.A. 920, which holds that devise 
 of remainder at death of life tenant fo be divided among testator's heirs at law 
 refers to heirs living at testator's death. 
 
 Cited in notes (3 L.R.A. 817) on contingent remainders; (73 Am. St Rep. 419) 
 on gifts to a class such as "children" and who are entitled to take; (25 Eng. Rul. 
 Gas. 725) on construction of gift over to survivor or survivors of bequest to a 
 class. 
 
 Distinguished in Ball v. Holland, 189 Mass. 373, 1 L.R.A.(N.S.) 1007, 75 N. E. 
 713, holding under whole will remainder vested at death of testator in children 
 then living where will provided for disposition among surviving children of prop- 
 erty possessed toy wife should she remain unmarried at her death and she died 
 unmarried. 
 
 2 L. R. A. 449, HAAS v. SACKETT, 40 Minn. 53, 41 N. W. 237. 
 Contract of indorsement. 
 
 Cited in Hathway v. Rogers, 112 Iowa, 640. 84 N. W. 674, holding memoran- 
 dum, "sold half of this note to R.," signed by payee on back of note, not an 
 indorsement; Gregg v. Groesbeck, 11 Utah, 320, 32 L. R. A. 269, 40 Pac. 202, 
 holding oral evidence admissible to prove plaintiff's knowledge of agreement 
 
2 L.R.A. 449] L. R. A. CASES AS AUTHORITIES. 302 
 
 between payee and defendant for erasure of latter's name as indorser before 
 negotiation. 
 
 Cited in note (14 Am. St. Rep 794) on indorsers and indorsements. 
 
 Conversion of negotiable instrument. 
 
 Cited in Nashville Lumber Co. v. Fourth Nat. Bank, 94 Tenn. 381, 27 L. R. 
 A. 522, 45 Am. St. Rep. 727, 29 S. W. 368, holding bank transferring negoti- 
 able paper to bona fide purchaser liable to party whose indorsement thereon had 
 been forged to its knowledge. 
 
 Cited in footnote to Griggs v. Day, 18 L. R. A. 130, which holds pledgee 
 liable for only actual value of notes converted. 
 Measure of damages In conversion. 
 
 Cited in footnote to Woods v. Nichols, 48 L. R. A. 773, which holds meas- 
 ure of recovery in trover by one retaining title as security for purchase price 
 limited to balance due, less depreciation by use. 
 
 2 L. R. A. 450, EVANSVILLE & T. H. R. CO. v. CRIST, 116 Ind. 44G, 9 Am. 
 
 St. Rep. 865, 19 N. E. 310. 
 Negligence in maintaining railroad crossings of highway or over stream. 
 
 Cited in Louisville, E. & St. L. Consol. R. Co. v. Pritchard, 131 Ind. 566, 
 31 Am. St. Rep. 451, 31 N. E. 358, holding railway company responsible for 
 injuries received from jolt of wagon crossing tracks 15 inches above highway: 
 Lake Shore & M. S. R. Co. v. Mclntosh, 140 Ind. 278, 38 N. E. 476, holding 
 railroad company liable for injury caused by washed-out crossing, negligently 
 left in such condition; Cincinnati, H. & I. R. Co. v. Claire, 6 Ind. App. 394. 
 
 33 N. E. 918, holding railway company liable for injury due to failure to guard 
 and light raised footway; Seybold v. Terre Haute & I. R. Co. 18 Ind. App. 
 379, 46 N. E. 1054, holding railway company liable for injury resulting from 
 lack of guards beside highway necessarily raised to cross tracks; Terre Haute 
 & I. R. Co. v. Clem, 123 Ind. 16, 7 L. R. A. 588, 18 Am. St. Rep. 303, 23 N. E. 
 965, holding no presumption of negligent construction or maintenance from 
 mere fact of injury at crossing; Moundsville v. Ohio River R. Co. 37 W. Va. 
 105, 20 L. R. A. 170, 16 S. E. 514, and State ex rel. Muncie v. Lake Erie & 
 W. R. Co. 83 Fed. 286, holding mandamus lies to compel railroad to maintain 
 street crossing in suitable condition; Chicago, I. & L. R. Co. v. State, 158 Ind. 
 192, 63 N. E. 224, holding railroad company may be compelled to construct 
 underground crossing, where surface crossing is dangerous; Chicago & S. E. 
 R. Co, v. State, 159 Ind. 240, 64 N. E. 860, holding city may compel railroad com- 
 pany to lower track at street crossing to conform to street grade; Wabash R. Co. 
 v. De Hart, 32 Ind. App. 70, 65 N. E. 192, holding actionable negligence on part 
 of railway company shown by complaint for injury at crossing without aver- 
 ment of notice to company of condition thereof; Evansville & I. R. Co. v. Allen, 
 
 34 Ind. App. 642, 73 N. E. 630, holding failure to maintain guards to prevent 
 persons falling off embankment actionable negligence in respect to person sus- 
 taining injury without fault; Graham v. Chicago, I. & L. R Co. 39 Ind. App. 297, 
 77 N. E. 57, holding duty of railroad company not to impair usefulness ol water- 
 course across which it constructs road is continuous, and failure to perform it 
 gives right of action to one injured thereby, and notice to grantee railroad com- 
 pany is not essential to its liability; Kelsay v. Chicago, C. & L. R. Co. 41 Ind. 
 App. 131, 81 N. E. 522, applying same rules in action for damages against rail- 
 road company for destroying public drain. 
 
 Negligence, concurring acts. 
 
 Cited in Cincinnati, I. St. L. & C. R. Co. v. Cooper, 120 Ind. 472, 6 L. R. A. 
 
303 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 450 
 
 245, 16 Am. St. Rep. 334, 22 N. E. 340, holding company liable for death caused 
 by sudden starting of one train throwing off plaintiff, and negligent failure 
 of second train to stop before reaching place of fall. 
 General allegation of negligence sufficient. 
 
 Cited in Pennsylvania Co. v. Horton, 132 Ind. 192, 31 N. E. 45, holding state- 
 ment of particulars of freedom from contributory negligence necessary onlv on 
 demand of defendant; Lake Shore & M. S. R. Co. v. Kurtz, 10 Ind. App. 63, 35 
 N. E. 201, holding any facts to show negligence admissible under general aver- 
 ment; Solberg v. Schlosser, 20 N. D. 312, 30 L.R.A. (N.S.) 1114, 127 X. W. 91, 
 holding that complaint alleges cause of action for negligence in leaving piles of 
 dirt on highway. 
 Specific averments control general averments. 
 
 Cited in Queen Ins. Co. v. Hudnut Co. 8 Ind. App. 27, 35 N. E. 397, holding 
 answer denying loss by tornado controlled by specific allegation that loss re- 
 sulted from shock of boat blown by wind. 
 Contributory negligence, knowledge of defect. 
 
 Cited in Poseyville v. Lewis, 126 Ind. 82, 25 N. E. 593, holding knowledge of 
 defective condition of sidewalk no bar to recovery; Hoggatt v. Evansville & T. 
 H. R. Co. 3 Ind. App. 443, 29 N. E. 941, holding driver of team on highway 
 parallel to railway not guilty of contributory negligence, though aware or horses' 
 skittishness; Evansville & T. H. R. Co. v. Athon, 6 Ind. App. 298, 51 Am. St. 
 Rep. 303, 33 N. E. 469, holding plaintiff not guilty of contributory negligence 
 in alighting under directions of brakeman after signal rope pulled; Sledge v. 
 Gayoso Hotel Co. 43 Fed. 464, holding it not negligence per se to enter elevator 
 in conductor's absence; Morrison v. Shelby County, 116 Ind. 433, 19 X. E. 316. 
 holding plaintiff guilty of contributory negligence in driving loaded wagon upon 
 defective bridge when long aware of condition, though used by public; Newcastle 
 v. Grubbs, 171 Ind. 498, 86 N. E. 757, holding plaintiff not guilty of contributory 
 negligence as matter of law, though he had knowledge of defective condition of 
 sidewalk; Chicago & E. I. R. Co. v. Gallion, 39 Ind. App. 610, 80 N. E. 547, holding 
 driving over crossing by person having knowledge of defect therein not necessarily 
 contributory negligence. 
 Averment of freedom from. 
 
 Cited in Louisville, N. A. & C. R. Co. v. Sandford, 117 Ind. 266, 19 X. E. 
 770, holding general averment that plaintiff without fault sufficient; Pittsburgh, 
 C. & St. L. R. Co. v. Bennett, 9 Ind. App. 95, 35 X. E. 1033; Citizens' Street 
 R. Co. v. Spahr, 7 Ind. App. 26, 33 X. E. 446; Louisville, X. A. & C. R. Co. v. 
 Hobbs, 3 Ind. App. 447, 29 X. E. 934; Evansville & T. H. R. Co. v. Krapf, 143 
 Ind. 652, 36 X. E. 901; Pennsylvania Co. v. O'Shaughnessy, 122 Ind. 590, 23 X. 
 E. 675; Elkhart v. Witman, 122 Ind. 540, 23 X. E. 796, holding general aver- 
 ment that plaintiff was without fault sufficient, unless contradicted by facts 
 specifically stated; Romona Oolitic Stone Co. v. Tate, 12 Ind. App. 62, 37 X. E. 
 1065, holding general allegation of freedom from fault overcome by facts 
 pleaded showing contributory negligence. 
 Opinion evidence. 
 
 Cited in Louisville, X. A. & C. R. Co. v. Hendricks, 128 Ind. 463, 28 X. E. 
 58, holding opinion of nonexpert witness as to rate of train's speed competent; 
 Kansas City. M. & B. R. Co. v. Crocker, 95 Ala. 423, 11 So. 262, holding plain- 
 tiff's testimony as to relative speed of car and man running competent, though 
 indefinite; Budd v. Salt Lake City R. Co. 23 Utah, 520, 65 Pac. 480, holding 
 opinion of physician as to percentage of patients recovering from similar in 
 juries competent; Alabama G. S. R. Co. v. Hall. 105 Ala. 606, 17 So. 176, hold- 
 
2 L.R.A. 450] L. R. A. CASES AS AUTHORITIES. 304 
 
 ing nonexpert character of opinion testimony of speed of engine goes to weight, 
 not competency, of evidence. 
 
 Cited in notes (4 LR.A. 555) on expert opinions; (34 L.R.A.(N.S.) 797) on 
 evidence as to speed of trains and hand cars. 
 Submission of special instructions. 
 
 Cited in Shelby County v. Blair, 8 Ind App. 588, 36 N. E. 216, and Rans- 
 bottom v. State, 144 Ind. 255, 43 N. E. 218, holding special instructions must be 
 submitted to court before argument to jury commenced; Cleveland, C. C. & St. 
 L. R. Co. v. Ward, 147 Ind. 257, 45 N. E. 325, holding failure to give requested 
 instruction not considered on appeal, unless record shows request therefor at 
 close of evidence; Duckwall v. Williams, 29 Ind. App. 654, 63 N. E. 232, hold- 
 ing error cannot be predicated upon refusal of instruction requested during 
 closing argument. 
 
 2 L. R, A. 455, VANOLINDER v. CARPENTER, 127 111. 42, 11 Am. St. Rep. 
 
 92, 19 N. E. 868. 
 Rule in Shelley's Case. 
 
 Cited in Hageman v. Hageman, 129 111. 167, 21 N. E. 814, holding fee vested 
 in sons under devise to them, with restriction against sale or mortgage during 
 lives, and gift to "their heirs after them;" Silva v. Hopkinson, 158 111. 388, 41 
 N. E. 1013, holding devise to daughters "and their lawful heirs, but in the 
 event of their death without lawful issue" then over, creates unconditonal fee 
 simple in daughters; Wolfer v. Hemmer, 144 111. 559, 33 N. E. 751, holding de- 
 vise to wife, her heirs and assigns, carries fee in spite of subsequent clause pro- 
 viding for distribution among children of all realty undisposed of by wife at 
 her death; Ewing v. Barnes, 156 111. 68, 40 N. E. 325, holding that fee created 
 by devise to party and his heirs not affected by subsequent clause in will pro- 
 viding for disposition of property in case of death without heirs of his body; 
 Palmer v. Cook, 159 111. 303, 50 Am. St. Rep. 165, 42 N. E. 796, holding grant 
 to daughters in fee creates tenancy in common, unaffected by subsequent clause 
 in deed providing for reversion of interest of one first dying without heirs, to 
 survivor; Vangieson v. Henderson, 150 111. 121, 36 N. E. 974, holding fee in 
 daughter, under devise to wife for life, on her death to daughter during nat- 
 ural life, remainder to her heirs; Fowler v. Black, 136 111. 375, 11 L. R. A. 673, 
 footnote p. 671, 26 N. E. 596, holding deed of vested remainder to grantee for 
 life, on his death to his heirs in fee, vested fee in grantee; Deemer v. Kessinger, 
 206 111. 63, 69 N. E. 28, holding devise to son, and at his death to his lawful 
 heirs, vests fee in son; Grimes v. Shirk, 169 Pa. 76, 32 Atl. 13, holding devisee 
 of estate for natural life, remainder to lawful issue, if any; if not to testator's 
 heirs, takes fee; Rissman v. Wierth, 220 111. 186, 110 Am. St. Rep. 243, 77 X. E. 
 108, holding wife took fee by clause giving estate to wife and her heirs though 
 testator sought to limit her estate to one for life by subsequent provisions; Peo- 
 ple ex rel. Reid v. Zellar, 225 111. 410, 79 N. E. 697, holding devise of use of realty 
 during life, after death of person named, who died before testator, and at de- 
 visee's death to his legal heirs, carried fee simple to devisee; Miller v. Mowers, 
 227 111. 399, 81 N. E. 420, holding rule in Shelley's Case inapplicable where inten- 
 tion of parties to deed was to convey life estate only; Ward v. Butler, 239 111. 
 467, 29 L.RA.(N.S.) 942, 88 N. E. 189, holding devisee took fee to one half of 
 farm by devise of use of whole for life, remainder one half to devisee's heirs and 
 one half to another and his heirs; Lord v. Comstock, 240 111. 499, 88 X. E. 1012, 
 holding rule in Shelley's Case controls though against testator's manifest intent ; 
 Kepler v. Larson, 131 Iowa, 441, 7 L.R.A.(N.S.) 1113, 108 N. W. 1033, holding 
 provision in restraint of alienation is void where grantor retains no reversionary 
 
305 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 461 
 
 interest, especially in case of conveyance to which rule in Shelley's Case applies; 
 Winter v. Dibble, 251 111. 222, 95 N. E. 1093, holding that rule in Shelley's Case 
 overrules declarations to contrary. 
 
 Cited in footnotes to Grainger v. Grainger, 36 L. R. A. 186, which holds rule 
 in Shelley's Case not applicable to devise to one for life, and after his death 
 to heirs of his body, if any survive him, with devise over otherwise; Starnes v. 
 Hill, 22 L. R. A. 598, which holds indefeasible fee not vested in one to whom 
 life estate given with estate in fee to his "heirs;" Re Browning, 3 L. R. A. 209, 
 which gives first takers fee simple under devise to persons for life, and then 
 to their children and their heirs; Glover v. Condell, 35 L. R. A. 360, which holds 
 ownership of fund subject to limitation, given by bequest to son and over 
 in case of death without living heirs. 
 
 Cited in notes (12 L. R. A. 723) on rule in Shelley's Case; (4 L. R. A. 117) 
 on devise of life estate by will; (29 L.R.A (N.S.) 1052, 1069, 1072, 1161; 22 Am. 
 St. Rep. 654; 110 Am. St. Rep. 247) on rule in Shelley's Case. 
 
 Distinguished in Albin v. Parmele, 70 Neb. 743, 98 N. W. 29, holding under 
 statute requiring courts to enforce intent of parties to instruments creating or 
 conveying real estate, as collected from whole instrument, remainder in fee to 
 heirs might be limited after freehold estate to ancestor. 
 
 Construction of instrument. 
 
 Cited in Gannon v. Peterson, 193 111. 380, 55 L. R. A. 704, 62 N. E. 210, hold- 
 ing devise using "children" and "heirs" indiscriminately read interchangeably 
 by courts to effect intention of testator; Strain v. Sweeny, 163 111. 607, 45 N. 
 E. 201, holding devise to son "and his heirs, . . . but in case he die with- 
 out issue" then over to mean "children," so as to effectuate executory devise; 
 Griswold v. Hicks, 132 111. 502, 22 Am. St. Rep. 549, 24 N. E. 63, holding term 
 "heirs," in habendum of deed, limited by following clause expressing intention 
 to convey to children for life, "and at their death to go to their children;" Down- 
 ing v. Grigsby, 251 111. 575, 96 N. E. 513 (dissenting opinion), on estate of widow 
 under will giving her homestead for life and half of residue. 
 
 Cited in footnotes to Wool v. Fleetwood, 67 L.R A. 444, which holds fee simple 
 vested in children under provision in will that five years after life tenant's death 
 they shall procure the property to be divided between them; Doyle v. Andis, 69 
 L.R.A. 953, which holds fee simple vested in first taker by conveyance to one 
 "during his natural life and then to his heirs;" (11 Am. St. Rep. 905; 137 Am. 
 St. Rep. 652) on life estates; (23 Am. St. Rep. 410) as to when devise is con- 
 strued as one in fee; (23 Am. St. Rep. 410) on construing devise to widow as 
 estate for life; (25 Am. St. Rep 523) on words in will creating life estate; (10 
 Eng. Rul. Cas. 758) on creation of estate tail by gift to "heirs of the body" fol- 
 lowing gift of same subject to the praepositus. 
 Execution of dry trust by statute. 
 
 Cited in Barclay v. Platt, 170 111. 388, 48 N. E. 972, holding devise in trust 
 for son and daughter and their children creates vested life estates in undivided 
 half of property in son and daughter, remainder to children. 
 
 2 L. R. A. 461, SYKES v. PEOPLE, 127 111. 117, 19 N. E. 705. 
 
 Cited on second appeal in 132 111. 49, 23 N. E. 391, stating former judgment 
 reversed for erroneous exclusion of evidence. 
 Sufficiency of title of statute. 
 
 Cited in note (64 Am. St. Rep. 106) on sufficiency of title of statute. 
 L.R.A. Au. Vol. I. 20. 
 
2 L.R.A. 461] L. R. A. CASES AS AUTHORITIES. 306 
 
 Parol modification of receipt. 
 
 Cited in Thompson v. Thompson, 78 Minn. 386, 81 N. W. 543, holding storage 
 receipt for grain cannot be modified by parol. 
 Criminal liability of warehousemen. 
 
 Cited in note (7 L. R. A. 532) on criminal liability of warehousemen. 
 
 Distinguished in McReynolds v. People, 230 111. 639, 82 N. E. 945, holding 
 criminal code relative to fraud in issuing warehouse receipts and in treatment of 
 property stored extends to all buildings in which goods, wares and merchandise 
 are or may be stored, whether for hire or otherwise. 
 Intent to defraud. 
 
 Cited in State v. Henzell, 17 Idaho, 735, 27 L.R.A.(N.S.) 164, 107 Pac. 67, 
 holding only intent which is essential ingredient of offense of unlawfully selling 
 grain stored in warehouse is voluntary commission of act; Block v. Oliver, 102 
 Ky. 277, 43 S. W. 238, to contention, intent to defraud by issuance of duplicate 
 receipts immaterial. 
 
 Cited in note (19 L. R. A. 304) on estoppel by wording of warehouse receipt. 
 Crime without intent to violate latv. 
 
 Cited in Gaul v. People, 136 111. App. 447, holding keeper of dram-shop bound 
 at his peril to ascertain whether sales he makes are forbidden by law. 
 
 2 L. R. A. 465, TOOLE v. TOOLE, 112 N. Y. 333, 8 Am. St. Rep. 750, 19 N. E. 
 
 682. 
 Rift-lit of purchaser at judicial or other sale to good title. 
 
 Cited in Moore v. Williams, 115 N. Y. 586, 5 L. R. A. 656, 12 Am. St. Rep. 
 844, 22 N. E. 233, holding purchaser need not take defective or doubtful title; 
 Schwencke v. Haffner, 18 App. Div. 185, 45 N. Y. Supp. 937, to point, purchaser 
 at judicial sale need not take doubtful title; Heller v. Cohen, 154 N. Y. 306, 
 48 N. E. 527, holding purchaser at judicial sale need not take defective title 
 requiring proceedings to cure it; Correll v. Lauterbach, 14 Misc. 473, 36 N. Y. 
 Supp. 615, holding purchaser need not await result of action by vendor against 
 strangers to perfect title ; Haggerty v. Wagner, 148 Ind. 672, 39 L. R. A. 398, 
 48 N. E. 366 (dissenting opinion), to point that purchaser need not take doubt- 
 ful title he may have to defend; Moot v. Business Men's Invest. Asso. 157 N. Y. 
 212, 45 L. R. A. 670, 52 N. E. 1, holding rejection of title for defect in record 
 cured by corrected judgment roll on file unwarranted; Ely v. Mathews, 58 Misc. 
 367, 110 N. Y. Supp. 1102, holding purchaser had right to assume decree and sale 
 thereunder conferred not merely good legal title, but title not open to further 
 question or reasonable dispute by other persons; Moore v. Williams, 23 Abb. 
 N. C. 409, 22 N. E. 233, holding vendee not required to take title subject to ap- 
 parent judgment lien. 
 
 Cited in notes (21 L.R.A. 46) as to objections on account of doubtful title; 
 (69 L.R.A. 38) on relief of purchaser upon annulling judicial or execution sale; 
 <135 Am. St. Rep. 920) as to whether, when, and how a purchaser at a judicial 
 sale may object to title. 
 Alienage and escheat. 
 
 Cited in notes (31 L. R. A. 85, 146, 177, 32 L. R. A. 177) as to disability of 
 aliens and escheat of property. 
 
 2 L. R. A. 467, GIBSON v. RICHMOND & D. R. CO. 37 Fed. 743. 
 
 Suit by pledgee or purchaser to invalidate transfer by corporation. 
 
 Cited in Elyea v. Lehigh Salt Min. Co. 45 App. Div. 237, 60 N. Y. Supp. 1050, 
 holding pledgee of stock cannot sue to set aside contract for sale of corporate 
 
307 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 471 
 
 property and stock; McCaleb v. Goodwin, 114 Ala. 623, 21 So. 967, holding pur- 
 chaser of stock estopped to question deed of trust given to secure bonds issued 
 with stockholder's consent; Havemayer v. Bordeaux, 3 111. C. C. 46, holding 
 pledgees of stock have no right to notice of acts of directors ; Cohen v. Big Stone 
 Gap Iron Co. Ill Va. 474, 69 S. E. 359, Ann. Cas. 1912 A, 203, holding that 
 pledgee of stock cannot maintain action to set aside fraudulent conveyance by 
 corporation. 
 
 Cited in notes (6 L. R. A. 566) on rights of bondholders; (6 L. R. A. 643) as 
 to mortgage of railroad stock. 
 
 2 L. R. A. 469, FIRST NAT. BANK v. MERCHANTS BANK, 37 Fed. 657. 
 Removal of action between nonresident parties. 
 
 Cited in Burck v. Taylor, 39 Fed. 583; Uhle v. Burnham, 42 Fed. 3; Kosh- 
 land v. National Ins. Co. 31 Or. 214, 49 Pac. 845; Craven v. Turner, 82 Me. 389, 
 19 Atl. 864; American Finance Co. v. Bostwick, 151 Mass. 25, 23 N. E. 656; 
 Rome Petroleum & Iron Co. v. Hughes Specialty Well Drilling Co. 130 Fed. 
 588, holding cause removable, although neither party resides in district; Dun- 
 can v. Associated Press, 81 Fed. 421, holding action between nonresident parties 
 of diverse citizenship removable; Whitworth v. Illinois C. R. Co. 107 Fed. 558 
 holding cause will not be remanded to state court because neither party re- 
 sides within state; Alley v. Edward Mines Lumber Co. 64 Fed. 904. holding 
 cause removable although one of the plaintiffs resides without state; Sherwood 
 v. Newport News & M. Valley Co. 55 Fed. 5, holding suit by aliens against cor- 
 poration not chartered in state removable; Illinois C. R. Co. v. Whitworth, 115 
 Ky. 290, 73 S. W. 766, holding state court without jurisdiction over controversy 
 between citizens of different states after compliance by defendant with Federal 
 statute and petition for removal; Tierney v. Helvetia Swiss F. Ins. Co. 163 Fed. 
 88, as to persons included under statute forbidding removal of case in which 
 assignee of chose in action is plaintiff unless such suit is maintainable by original 
 assignor in district to circuit court of which removal is asked. 
 
 Not followed in Foulk v. Gray, 120 Fed. 157, holding suit brought in courts 
 of state where neither party resides not removable to Federal court, except by 
 consent. 
 Citizenship of stakeholder. 
 
 Cited in Reeves v. Corning, 51 Fed. 778, holding citizenship of mere stake- 
 holder does not defeat real party defendant's right of removal. 
 
 2 L. R. A. 471, WELLES v. LARRABEE, 36 Fed. 866. 
 
 Statute rig-fats and liabilities of real and apparent owner* of corporate 
 stock. 
 
 Cited in Lewis v. Switz, 74 Fed. 382, holding person who knowingly permits 
 name on national bank-stock books as owner cannot deny ownership as against 
 creditors; Hecht v. Phenix Woolen Co. 121 Fed. 190, holding persons acquiesc- 
 ing in issuance of stock to them without consideration, transferred to another 
 as collateral for loan to corporation, liable as stockholders; Andrews v. Na- 
 tional Foundry & Pipe Works, 36 L. R. A. 152, 22 C. C. A. 120, 46 U. S. App. 
 281, 76 Fed. 175, holding stockholders by direct issue as collateral security for 
 <lebt not liable to creditors; Baker v. Old Nat. Bank, 86 Fed. 1007, holding no- 
 tice afforded on stock books by words "collateral," "in escrow," "trustee," or 
 "agent," prevent liability by estoppel; Houghton v. Hubbell, 33 C. C. A. 575, 
 63 U. S. App. 31, 91 Fed. 454, holding real owner of stock in name of another 
 person on stock books liable to creditors; Geyser-Marion Gold Min. Co. v. Stark, 
 
2 L.R.A. 471] L. R. A. CASES AS AUTHORITIES. 308 
 
 53 L. R. A. 689, 45 C. C. A. 471, 106 Fed. 563, holding transfer of stock in name 
 of trustee without inquiry for cestui que trust actionable negligence; Morse v. 
 Pacific R. Co. 93 111. App. 39, holding legal, although not equitable, owner of 
 corporate stock liable to creditors; Fowler v. Gowing, 152 Fed. 814, holding 
 transfer of national bank stock to trustee transferred stockholder's liability to 
 trust estate. 
 
 Cited in notes (36 L.R.A. 139) on liability of pledgee of stock as a share- 
 holder; (19 L.R.A.(N.S.) 249) on liability of pledgee of stock as shareholder; 
 (121 Am. St. Rep. 198, 199) on rights, remedies, and liabilities of pledgees of 
 corporate stock; (68 Am. St. Rep. 544) on liability of persons holding stock as 
 collateral; (51 L: ed. (U. S.) 424) on pledgee as shareholder in national bank. 
 
 Distinguished in Union Sav. Bank v. Willard, 4 Cal. App. 694. 88 Pac. 1098, 
 holding trustee recorded as such on corporate books liable for unpaid subscrip- 
 tion price of stock. 
 
 2 L. R. A. 475, HUDMON BROS. v. DU BOSE, 85 Ala. 446, 5 So. 162. 
 Warehousemen. 
 
 Cited in note (7 L. R. A. 530) on warehousemen as bailees. 
 Lien of mortgagee. 
 
 Cited in Truss v. Harvey, 120 Ala. 641, 24 So. 927, holding mortgage on crops, 
 recorded in county where grown, notice to purchaser in another county; Chap- 
 man v. First Nat. Bank, 98 Ala. 532, 22 L. R. A. 80, 13 So. 764, holding lien 
 of livery-stable keeper subordinate to prior recorded mortgage with law day 
 passed and mortgagor in possession. 
 
 Cited in notes (18 Am. St. Rep. 771) on lien on growing crops under chattel 
 mortgage; (21 Am. St. Rep. 282) on registration of chattel mortgage. 
 Liability of bailee to real owner for conversion. 
 
 Cited in Clay v. Sullivan, 156 Ala. 395, 47 So. 153, holding pawnbroker liable 
 in conversion to wife, whose husband pawned her ring without her authority and 
 turned pawnticket over to another person, who redeemed; Pippin v. Farmers' 
 Warehouse Co. 167 Ala. 167, 51 So. 882, holding warehouseman guilty of con- 
 version, where he turned over to buyer cotton deposited with him by mortgagor 
 
 2 L. R. A. 476, SIMMONS v. HILL, 96 Mo. 679, 10 S. W. 61. 
 Liability of ovrnera of legal title to corporate stocks. 
 
 Cited in Bagley v. Tyler, 43 Mo. App. 203, holding courts will not look be- 
 yond registered shareholders in fixing liability to respond to creditors. 
 
 Cited in notes (30 L.R.A.(N.S.) 288) on liability of transferee on unpaid stock 
 subscription; (68 Am. St. Rep. 542) on liability of persons holding stock as 
 collateral; (121 Am. St. Rep. 197) on rights, remedies and liabilities of pledgees 
 of corporate stock. 
 
 2 L. R. A. 480, PHILADELPHIA NAT. BANK v. DOWD, 38 Fed. 172. 
 Folio-wing trusts and trust funds. 
 
 Cited in Merchants' & F. Bank v. Austin, 48 Fed. 28, holding trust funds can 
 only be pursued when clearly distinguishable from other property of trustee. 
 Wasson v. Hawkins, 59 Fed. 237, holding deposit in insolvent bank a few mo- 
 ments before closing recoverable from receiver; Independent District v. Beard, 
 83 Fed. 11, holding rule not requiring deposit to be traced into any specific 
 funds in insolvent bank receiver's hands binding on Federal courts in Iowa ; 
 Oswego Mill. Co. v. Skillern, 73 Ark. 326, 84 S. W. 475, holding money collected 
 by bank as trustee not to be followed into hands of receiver unless identical 
 
309 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 480 
 
 fund collected went into receiver's hands, and went to swell funds in his hands; 
 Ober & Sons Co. v. Cochran, 118 Ga. 404, 98 Am. St. Rep. 118, 45 S. E. 382, hold- 
 ing principal must trace fund collected by bank as agent into hands of receiver 
 to establish right to take amount collected out of funds realized by converting 
 bank's assets into cash; Furber v. Dane, 203 Mass. 121, 89 N. E. 227, holding 
 one who intrusted stocks as margin to firm which pledged them wrongfully could 
 not trace them after they passed into hands of innocent purchasers for value, 
 nor trace proceeds of their sale; Texas Moline Plow Co. v. Kingman Texas Im- 
 plement Co. 32 Tex. Civ. App. 346, 80 S. W. 1042, on extent to which identifica- 
 tion of trust property must go in order to follow it. 
 
 Cited in footnotes to Ferchen v. Arndt, 29 L. R. A. 664, which denies power 
 of consignors to impress with trust lien funds of consignees in hands of re- 
 ceiver; Indiana, I. & I. R. Co. v. Swannell, 30 L. R. A. 290, which holds prop- 
 erty purchased by trustee for bondholders under reorganization arrangement not 
 discharged as to bondholders failing to pay assessments; Central Stock & Grain 
 Exchange v. Bendinger, 56 L. R. A. 875, which holds broker liable to refund 
 to principal money illegally taken from agent as margins on gambling transac- 
 tion; Bohle v. Hasselbroch, 61 L. R. A. 323, which sustains right of cestuis 
 que trust to elect remedy where trustee buys land in own name with trust funds 
 mingled with own funds. 
 
 Cited in notes (8 L.R.A. 789) on commingling of trust funds; (86 Am. St. Rep. 
 786, 797, 804, 806) on right to recover money deposited with or collected by bank 
 upon its insolvency. 
 
 Distinguished or disregarded in Massey v. Fisher, 62 Fed. 960, holding money 
 paid to insolvent bank to take up note recoverable from funds in hands of 
 receiver. 
 Banks and banking. 
 
 Cited in New Farmers' Bank v. Cockrell, 106 Ky. 588, 51 S. W. 2; Union Nat. 
 Bank v. Citizens' Bank, 153 Ind. 55, 54 N. E. 97; Hallam v. Tillinghast, 19 
 Wash. 27, 52 Pac. 329, holding collection of draft by bank establishes merely 
 the relation of debtor and creditor between it and owner thereof; State ex rel. 
 North Carolina Corp. Commission v. Merchants' & F. Bank, 137 N. C. 699, 50 
 S. E. 308. 2 A. & E. Ann. Cas. 537, holding where paper is sent to bank indorsed 
 for collection, relation of depositor and bank becomes that of creditor and debtor 
 after collection made and proceeds mingled with general funds of bank, and 
 holder of such claim can only share in assets pro rata with general creditors on 
 assignment because of insolvency. 
 
 Cited in footnotes to First Nat. Bank v. Payne, 3 L. R. A. 284, which holds 
 partner of insolvent banking firm cannot pay checks received from collecting 
 bank by charging to drawers and crediting to latter bank; Pickle v. People's 
 Nat. Bank, 7 L. R. A. 93, which holds acceptance of check necessary to give right 
 of action against bank. 
 
 Cited in notes (2 L. R. A. 699) on usages and customs as to bank collections; 
 (7 L. R. A. 859) on bank collections; (32 L. R, A. 719) on trust in proceeds 
 of collection made by bank when insolvent. 
 Right of cestui qne trust to preference. 
 
 Cited in Re Mulligan, 116 Fed. 718, refusing preference where misappropriated 
 funds could not be traced to particular stocks in hands of bankrupt's trustee; St. 
 Louis Brewing Asso. v. Austin, 100 Ala. 322, 13 So. 908, holding collections 
 and deposits induced by fraud not preferred, unless 'identified in bank receiver's 
 hands; Windstanley v. Second Nat. Bank, 13 Ind. App. 548, 41 N. E. 956. hold- 
 ing person for whom insolvent collected and retained money^not entitled to pref- 
 
2 L.R.A. 480] L. R. A. CASES AS AUTHORITIES. 310 
 
 erence, without showing what was done with such money; Evangelical Synod v. 
 Schoeneich, 143 Mo. 661, 45 S. W. 647, holding where trustee indistinguishably 
 mixes trust money with his own, that cestui que trust will be preferred over 
 creditors; Pearson v. Haydel, 90 Mo. App. 261, holding cestui que trust will be 
 preferred so long as indistinguishably mixed property can be traced into trus- 
 tee's estate; Anheuser-Busch Brewing Asso. v. Clayton, 6 C. C. A. 110, 13 
 U. S. App. 295, 56 Fed. 761, and Freiberg v. Stoddard, 161 Pa. 263, 28 Atl. 1111, 
 Affirming 7 Kulp, 161, holding drawer of accepted draft charged as paid by 
 drawee's bank not entitled to preference on bank's insolvency; Richelieu Hotel 
 Co. v. Miller, 50 111. App. 393; Drovers' & M. Nat. Bank v. Roller, 85 Md. 500 r 
 36 L. R. A. 769, 60 Am. St. Rep. 344, 37 Atl. 30; Bishop v. Mahoney, 70 Minn. 
 240, 73 N. W. 6; Burnham v. Earth, 89 Wis. 370, 62 N. W. 96; Thuemmler v. 
 Earth, 89 Wis. 389, 62 N. W. 94; Union Nat. Bank v. Goetz, 138 111. 136.. 32 Am. 
 St. Rep. 119, 27 N. E. 907; Northern Dakota Elevator Co. v. Clark, 3 N. D. 33, 
 53 N. W. 175. holding owner not a preferred creditor where his property is in- 
 distinguishably mingled with another's in whose hands it was; Hill v. Miles. 8-7 
 Ark 489, 104 S. W. 198, holding one whom insolvent bank owes for trust funds 
 cannot obtain preference without showing receiver or one in charge of assets has 
 trust funds or property purchased therewith or into which funds have been 
 changed or invested; Lucas County v. Jamison, 170 Fed. 348, holding funds must 
 be identified, not by earmarks, but traced into estate and there found by aug- 
 mentation of estate in order to give preference; Groff v. City Sav. Fund & T. Co. 
 23 Lane. L. Rev. 285, holding that cestui que trust cannot recover, as preferred 
 claim from receiver of trust company money received by it in trust and mingled 
 with its general funds. 
 
 Cited in note (25 L. R. A. 547) on exceptions to the prohibition of preferences 
 by insolvent national banks. 
 
 2 L. R. A. 487, HOUSTON v. SLEDGE, 101 N. C. 640, 8 S. E. 145. 
 Pleadings, amendments. 
 
 Cited in Nims Mfg. Co. v. Blythe, 127 N. C. 326, 37 S. E. 455, holding com- 
 plaint might be amended to conform to facts proved; Mayes v. Stephens, 38 Or. 
 516, 63 Pac. 760, holding error to strike out new matter in reply: Bremen Min. 
 & Mill. Co.'v. Bremen, 13 N. M. 129, 79 Pac. 806, holding motion to strike 
 amended complaint from files before answer improperly sustained. 
 
 2 L. R. A. 489, JOHNSON v. BROOKLYN & C. R. CO. 37 Fed. 147. 
 Patent on combination. 
 
 Cited in Vermilya v. Erie R. Co. 89 Fed. 96, holding injunction pendente lite 
 should not be granted where patent is for combination of old parts; Hall Signal 
 Co. v General R. Signal Co. 171 Fed. 437, denying' decree enjoining defendant 
 from dealing in signaling apparatus or systems embodying invention, or any part 
 thereof, which were constructed before expiration of patent, where parts were 
 usable in signal system not infringement. 
 
 Cited in notes (12 L.R.A. 107) on patent for combination; (20 Eng. Rul. Cas. 
 856) on right to injunction or damages in an action for infringement of patent. 
 
 2 L. R. A. 489, PITTSBURG, C. & ST. L. R. CO. v. LYON, 123 Pa. 140, 16 Atl. 
 
 607. 
 Reasonableness of railroad's regulations. 
 
 Cited in Muckle v. Rochester R. Co. 79 Hun, 35, 29 N. Y. Supp. 732, holding 
 reasonableness of street railroad's regulation as to time limit for transfers a 
 question of law. 
 
311 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 489 
 
 Cited in note (43 L. R. A. 363) on duties of master and servant with regard 
 to rules promulgated for the safe conduct of a business. 
 Exemplary damages. 
 
 Cited in Ruling v. Henderson, 161 Pa. 560, 29 Atl. 276, holding exemplary 
 damages recoverable for wilfully killing trees; Gallagher v. Burke, 13 Pa. Super. 
 Ct. 251, sustaining instruction that jury might award exemplary damages for 
 malicious eviction of tenant; Lynch v. Troxell, 207 Pa. 172, 56 Atl. 413, holding 
 question of exemplary damages for flooding land wrongfully submitted to jury, 
 in absence of evidence that injury was wilful or malicious; Harlan v. Wabash R. 
 Co. 117 Mo. App. 541, 94 S. W. 737, holding exemplary damages allowable for 
 carrying passenger by destination wilfully, intentionally and without lawful 
 excuse; Hygienic Fleeced Underwear Co. v. Way, 33 Pa. Co. Ct 136, 15 Pa. Dist. 
 R. 945, holding where no actual damage suffered, no exemplary or punitive dam- 
 ages recoverable; Greeney v. Pennsylvania Water Co. 29 Pa. Super. Ct. 141, 
 holding jury alone can dispose of evidence on subject of exemplary damages; 
 Greenwood v. Union Traction Co. 30 Pa. Super. Ct. 494, holding in order to recov- 
 er exemplary damages in action for negligence of servant, wrong motive must ac- 
 company wrongful act; Manegold v. Foundry Co. 17 Pa. Dist. R. 976, holding 
 one to whom wrong has been already done by artificial use of land may recover 
 damages exceeding compensation upon proof of circumstances of wilful or wanton 
 oppression; Webb v. Atlantic Coast Line R. Co. 76 S. C. 199, 9 L.R.A.(N.S.) 3220, 
 56 S. E. 954, 11 A. & E. Ann. Gas. 834, holding punitive damages allowable for 
 wilful or wanton failure to deliver baggage; Chatelin v. Wyandotte Gas Co. 9 
 North. Co. Rep. 135, denying punitive damages for negligent maintenance of un- 
 safe underground siphon drips whose location were unknown to defendant; Hus- 
 ton v. Freemansburg, 9 North. Co. Rep. 364, on recovery of punitive damages for 
 wanton injury; Funk v. Kerbaugh, 24 Lane. L. Rev. 293, holding punitive dam- 
 ages recoverable, where contractor continues firing heavy blasts near plaintifFa 
 farm buildings after notice of injury being caused thereby. 
 
 Cited in notes (11 Am St. Rep. 65; 13 Am. St. Rep. 452; 28 Am. St. Rep. 878, 
 882; 8 Eng. Rul. Gas. 377, 378) on exemplary or punitive damages; (9 L.R.A. 
 (X.S.) 1218) on punitive damages for wanton failure to transport baggage: 
 (37 L. ed. U. S. 98) on liability of railroad or other corporation for punitive or 
 exemplary damages; (59 Am. St. Rep. 590, 591, 603) on exemplary damage* 
 against corporations. 
 
 Distinguished in Palmer v. Philadelphia, B. & W. R. Co 218 Pa. 118, 66 Atl. 
 1127, holding exemplary damages not recoverable by surviving parties for injuries 
 resulting in death. 
 Regulations as to ba&gag-e. 
 
 Cited in notes (25 L.R.A. (N.S.) 537) on duty to check baggage to destination; 
 (99 Am. St. Rep. 382) on liability for loss of baggage. 
 
 Distinguished in Howell v. Grand Trunk R. Co. 92 Hun, 426, 36 N. Y. Supp. 
 544, holding railroad's rule against extending stop-over privilege to baggage 
 reasonable. 
 Powers of corporations. 
 
 Cited in Connecticut River Lumber Co. v. Olcott Falls Co. 65 N. H. 379, 13 
 L. R. A. 831, 21 Atl. 1090, holding corporations may exercise only powers con- 
 ferred expressly or by necessary implication; McGuire v. Chicago, B. & Q. R. Co. 
 131 Iowa, 367, 33 L.R.A.(N.S.) 719, 108 N. W. 902, holding power of creating 
 corporation necessarily implies power of regulation; distinguishing between natu- 
 ral persons and corporations as regards relation to power of state to regulate 
 their business. 
 
 Cited in note (33 Am. St. Rep. 248) on powers of corporation. 
 
2 L.R-A. 489] L. R. A. CASES AS AUTHORITIES. 312 
 
 Reasonableness of thing * question of law or fact. 
 
 Cited in Kroll v. Close, 82 Ohio St. 196, 28 L.R.A. N.>.< .">. 02 X E. 29, hold- 
 ing finding of court below as to reasonableness of amount expended by adminis- 
 trator for burial of decedent subject to review upon facts conceded and proved; 
 Com. v. Doe, 44 Pa. Super. Ct. 339, holding that reasonableness of regulation by 
 street railway as to length of trip for one fare is question for court; Arbour v. 
 Pittsburg Produce Trade Asso. 44 Pa, Super. Ct. 250, holding that reasonableness 
 of by-law, where facts are undisputed, is question of law; Cincinnati. X. 0. & T. 
 P. R. Co. v. Lovell, 141 Ky. 260, LJLA.(NJS.) , 132 S. W. 569, holding that 
 construction of railroad rules, if there is ground for reasonable difference of opin- 
 ion as to their applicability, is for jury. 
 
 2 L. R. A. 491, FIFTH NAT. BANK v. ASHWORTH, 123 Pa. 212. 16 Atl. 596. 
 Dot y of collecting agents. 
 
 Cited in American Exeh. Nat. Bank v. Metropolitan Nat. Bank, 71 Mo. App. 
 457, holding bank receiving worthless check in payment of one sent to it for 
 collection liable to sender; National Bank v. American Exch. Bank. 151 Mo. 
 330, 74 Am. St. Rep. 527, 52 S. W. 265, holding bank surrendering for check, 
 draft sent for collection, liable to sender; Cowling v. American Exp. Co. 102 
 Mo. App. 372, 76 S. W. 712, holding agent to collect check, accepting draft, per- 
 sonally liable to principal; Farmers' &, M. Nat. Bank v. Cuyler, 18 Pa. Super. 
 Ct 437, 9 Pa. Dist. R, 539, holding bank receiving check for collection, and taking 
 another in payment, is liable for amount of deposited check; Pepperday v. Citi- 
 zens' Nat. Bank, 183 Pa. 522, 39 L. R. A. 530, 63 Am. St. Rep. 769, 38 Atl. 1030, 
 holding bank liable for receiving worthless check in payment on securities of de- 
 positor; Irwin v. Reeves Pulley Co. 20 Ind. App. 115, 48 X. E. 601, holding bank 
 only bound to reasonable diligence to collect draft; Lowenstein v. Bresler, 109 
 Ala. 329, 19 So. 860, holding one receiving check in payment must duly present 
 it and give notice of dishonor; Industrial Trust, Title & Sav. Co. v. Weakley, 103 
 Ala. 466, 49 Am. St. Rep. 45, 15 So. 854, holding delay in presentment of check 
 received in payment by agent is at his risk; National Bank v. Johnson, 6 X. D. 
 186, 69 N. W. 49, holding owner of certificate of deposit, for which draft taken 
 by bank collecting it, entitled to dividends on draft from receiver of drawer; 
 Kirkham v. Bank of America, 26 App. Div. 121, 49 N. Y. Supp. 767, holding 
 bank crediting the amount of draft for collection to sender cannot cancel the 
 redit without returning draft; Paul v. Grimm, 165 Pa. 147, 44 Am. St. Rep. 
 648, 30 Atl. 721, holding agent liable to principal for amount for which lands 
 sold received in bonds; Anderson v. Gill, 79 Md. 318, 25 L. R. A. 204. 47 Am. St. 
 Rep. 402, 29 Atl. 527, holding drawer of check discharged by insolvency of bank 
 on which it is drawn if check by it on third bank, accepted in payment, was not 
 presented with diligence; Landa v. Traders Bank, 118 Mo. App. 368, 94 S. W. 
 770, holding that if a bank receives draft from customer for collection and sends 
 it to collecting bank which takes drawee's check and credits sending bank, which 
 in turn credits customer, sending bank is liable to customer. Though it charges 
 back amount because of drawee having stopped payment on check; Hannis Dis- 
 tillery Co. v. Rosenbluth, 12 Luzerne Leg. Reg. Rep. 313, 23 Lane. L. Rev. 123, 
 holding one seeking to avail himself of act of agent in accepting note or security 
 must show special authorization or subsequent ralification by principal. 
 
 Cited in footnotes to St. Nicholas Bank v. State Nat. Bank, 13 L. R. A. 241. 
 which holds collecting bank's duty not fulfilled by delivering correspondent's 
 draft on third person to itself: First Nat. Bank v. Payne. 3 L. R. A. 284. which 
 holds partner of insolvent banking firm cannot pay checks received from col- 
 lecting bank by charging to drawers and crediting to latter bank; Bank of An- 
 
313 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 494 
 
 tigo v. Union Trust Co. 23 L. R. A. 611, which holds bank takes risk of accept- 
 ing check in payment of note received for collection; State Bank v. Byrne, 21 
 L. R. A. 753, which holds drawee's acceptance of draft presented by collecting 
 bank not payment; Corn Exch. Bank v. Farmers' Nat. Bank, 7 L. R. A. 559, 
 which holds only first of several banks receiving check for collection agent of 
 payee; Grissom v. Commercial Nat. Bank, 3 L. R, A. 273, which holds baiik has 
 no right to pay to third party note made by depositor. 
 
 Cited in notes (4 L. R, A. 422) on bank receiving paper for collection; duty 
 and liability; (7 L. R. A. 858) on duties, rights, obligations, and liabilities of 
 bank for collection; (9 L. R, A. 109) on relations between depositor and bank; 
 (8 L.R.A. 44) on liability of agent of collecting bank; (86 Am. St. Rep. 788- 
 3 KR.A.(N.S.) 1180, 1181, 1182; 10 LJLA.<X.S.) 536, 539) on liability of bank 
 for taking check or drafts in payment of paper held for collection; (77 Am. St 
 Rep. 624, 629) on duties of banks acting as collecting agents. 
 
 2 L. R. A. 494, PEOPLE v. SOULE, 74 Mich. 250, 41 N. W. 908. 
 Who riiiiiiii.-il in selling: liquor. 
 
 Cited in State v. Austin Club, 89 Tex. 26, 30 L. R. A. 503, 33 S. W. 113, hold- 
 ing social club not engaged in business of selling liquor; People v. Adelphi Club, 
 149 X. Y. 13, 31 L. R. A. 513, 52 Am. St. Rep. 705, 43 N. E. 410, holding social 
 club does not require license to sell its liquor to members; Mohrman v. State, 
 105 Ga. 716, 43 L. R. A. 401, 70 Am. St. Rep. 80, 32 S. E. 143, holding social 
 club a tippling house to be closed on Sunday; State v. Boston Club, 45 La. Ann. 
 592, 20 L. R. A. 187, 12 So. 895, holding the furnishing of drinks to members 
 of social club, sales, within meaning of act requiring license; Barden v. Montana 
 Club, 10 Mont. 335, 11 L. R. A. 595, 24 Am. St. Rep. 27, 25 Pac. 1042, holding 
 social club not liable to pay license tax for sale of liquor to members; Manning 
 v. Canon City, 45 Colo 577, 23 L.R.A.(N.S.) 195, 101 Pac. 978, holding dispensa- 
 tion of liquors by club to members and guests at rates fixed by board of control 
 constitutes sale; Ada County v. Boise Commercial Club, 20 Idaho, 437, 38 LJLA. 
 t'X.S.) 110, 118 Pac. 1086, holding that commercial club supplying members, with- 
 out profit to itself, with liquor to be consumed in elubrooms ia required to procure 
 license; People v. Craig, 155 111. App. 76, holding that club with lockers for mem- 
 bers in which liquor was placed by secretary was evasion of liquor law; State 
 ex rel. Young v. Minnesota Club, 106 Minn. 524, 20 L.R.A.(X.S.) 1105, 119 N. W 
 494, holding serving of liquors to members by incorporated club constitutes sale 
 by "person" within meaning of statute; State v. Mudie, 22 S. D. 51, 115 N. W. 
 107, holding that giving of drinks by incorporated commercial club to its members 
 for coupons violates liquor law. 
 
 Cited in footnotes to State ex rel. Bell v. St. Louis Club, 26 L. R, A. 573, 
 which holds valid, distribution of liquor among members by social club; People 
 v. Adelphi Club, 31 L. R. A. 510, which holds distribution of liquor by social 
 club to members not illegal sale; State ex rel. Stevenson v. Law & Order Club, 
 62 L. R. A. 884, holding social club cannot dispense liquors without license to 
 members presenting checks delivered upon payment of special assessment; Barden 
 v. Montana Club, 11 L. R. A. 593, which holds social club not subject to license 
 tax: State v. Boston Club, 20 L. R. A. 185, which holds incorporated institu- 
 tions selling liquor to members owe license; State v. Horacek, 3 L. R. A. 687, 
 which holds officers and members of association selling drinks to members liable 
 to prosecution. 
 
 Cited in notes (12 L. R. A. 413) on intoxicating liquors; social club; (6 L. R. 
 A. 128) on social clubs: evasion of liquor law by; (12 L.R.A.(N.S.) 522) on ap- 
 plicability of liquor laws to social club 
 
2 L.R.A. 494] L. R. A. CASES AS AUTHORITIES. 314 
 
 Distinguished in State ex rel. Bell v. St. Louis Club, 125 Mo. 330, 26 L. R. A. 
 581, 28 S. W. 604, holding social club's charter not forfeited for furnishing 
 liquor to members without license as dramshop. 
 
 Disapproved in Cuzner v. California Club, 155 Cal. 314, 20 L.R.A.(N.S.) 1100, 
 100 Pac. 868, holding an ordinance imposing a license tax on the conducting or 
 carrying on of the business of a retail liquor dealer does not apply to a bona 
 fide social club selling liquor to members and guests. 
 Who liable for selling: liquors. 
 
 Cited in State v. Neis, 108 X. C. 792, 13 S. E. 225, upholding conviction for 
 furnishing liquor for pay to member of unorganized syndicate of owners; People 
 v. De Groot, 111 Mich. 247, 69 N. W. 248, holding one who, without paying tax, 
 sells liquor, as agent of brewing company, may be informed against as principal ; 
 Krnavek v. State, 38 Tex. Crim. Rep. 49, 41 S. W. 612, upholding conviction of 
 steward of social club for selling liquor to members; People v. Journeau, 147 
 Mich. 521, 111 N. W. 95, holding directed verdict of guilty of selling liquor with- 
 out license not warranted by evidence as to restaurant keeper's purchasing liquor 
 at saloon next door and bringing it to guests who supplied money for such pur- 
 pose; R. v. Hughes, 29 Ont. Rep. 184, holding club steward guilty of selling 
 liquor without license. 
 
 Cited in note (10 L. R. A. 82) on late decisions under liquor laws of Michigan. 
 
 2 L. R. A. 498, JOHN S. HANES & CO. v. WADEY, 73 Mich. 178, 41 N. W. 222. 
 Remedial statutes. 
 
 Cited in Daniels v. Detroit, G. H. & M. R. Co. 163 Mich. 475, 128 X. W. 797, 
 upholding act permitting service of process on agent of foreign corporation in 
 cases arising outside jurisdiction. 
 
 Cited in footnotes to International Bldg. & L. Asso. v. Hardy, 24 L. R. A. 284, 
 which denies legislative power to change remedy for enforcing trust deed; Jones 
 v. German Ins. Co. 46 L. R. A. 860, which sustains statute shortening time of in- 
 surance company's immunity from suit without extending period of limitations; 
 Kirkman v. Bird, 58 L. R. A. 670, which sustains as to prior obligations statute 
 exempting wages for sixty days preceding levy. 
 
 Distinguished in John Spry Lumber Co. v. Sault Sav. Bank, Loan & T. Co. 77 
 Mich. 202, 6 L. R. A. 205, 18 Am. St. Rep. 396, 43 N. W. 778, holding lien law of 
 1887 unconstitutional. 
 Repeal of remedial statutes. 
 
 Cited in Angell v. West Bay City, 117 Mich. 690, 76 N. W. 128, holding with- 
 out saving clause repeal of law giving statutory right destroys such existing 
 right; Orman v. Crystal River R. Co. 5 Colo. App. 500, 39 Pac. 434, holding pro- 
 ceedings in action to enforce lien must comply with statutes in force when right 
 accrues; Barton v. Steinmitz, 37 111. App. 142, holding enforcement of mechanic's 
 lien governed by laws in force when mechanic seeks benefit of lien; Wilson v. 
 Simon, 91 Md. 9, 80 Am. St. Rep. 427, 45 Atl. 1022, holding change in statutory 
 remedy does not impair obligation of contract; Mack v. DegrafF & R. Quarries, 
 57 Ohio St. 483, 63 Am. St. Rep. 729, 49 N. E. 697, holding foreign material man 
 has equal rights with state material man under lien laws: Durkheimer v. Copper- 
 opolis Copper Co. 55 Or. 45, 104 Pac. 895, holding valid, amendment of lien law 
 omitting provision for lien of person working in mine boarding house. 
 
 Cited in footnote to Miners' & Merchants' Bank v Snyder, 68 L.R.A. 312, which 
 holds corporate creditor's contract rights not impaired by statute requiring all 
 creditors to unite in one suit against all stockholders for equitable distribution 
 of liability fund among creditors. 
 
 Disapproved in Waters v. Dixie Lumber & Mfg. Co. 106 Ga. 595, 71 Am. St. 
 
315 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. .loo 
 
 Rep. 284, 32 S. E. 636, holding material man's lien, when fixed and secured under 
 statute, cannot be taken away; Garneau v. Port Blakely Mill Co. 8 Wash. 470, 
 36 Pac. 463, holding logger's lien for labor unaffected by repeal of statute pend- 
 ing enforcement. 
 
 2 L. R. A. 500, NEFF v. WELLESLEY, 148 Mass. 487, 20 N. E. 111. 
 Overseers of poor a agents of municipality. 
 
 Cited in Fitzgerald v. Lewis, 164 Mass. 500, 41 N. E. 687, holding overseers 
 of poor in control of poor farm may exclude trespassers. 
 Duties of corporation as affecting- liability for acts of servants. 
 
 Cited in Howard v. Worcester, 153 Mass. 428, 12 L. R, A. 161, 25 Am. St. 
 Rep. 651, 27 N. E. 11, holding city engaged in building schoolhouse not liable 
 for servant's negligence; Fox v. Chelsea, 171 Mass. 300, 50 N. E. 622, holding 
 city liable for negligence of water commissioners acting as city's agents in lay- 
 ing water pipes; Watson v. Needham, 161 Mass. 411, 24 L. R. A. 288, 37 N. E. 
 204, holding question of plaintiff's fault, or nonliability of town for neglect of 
 water commissioners, not raised; Collins v. Greenfield, 172 Mass. 81, 51 N. E. 
 454, holding town liable for negligence in connection with macadamizing done 
 voluntarily as private enterprise; Hughes v. Monroe County, 79 Hun, 126, 29 X. 
 Y. Supp. 495, holding county not liable for injuries to employee in insane asy- 
 lum; Chicago v. Selz, S. & Co. 104 111. App. 381, holding municipality liable for 
 damages in operation, partly for profit, of waterworks system; Mt. Hope Ceme- 
 tery v. Boston, 158 Mass. 513, 35 Am. St. Rep. 515, 33 N. E. 695, holding leg- 
 islature could not compel Boston to transfer title to cemetery to private corpora- 
 tion, without compensation; Hall v. Concord, 71 N. H. 373, 58 L. R. A. 460, 52 
 Atl. 864 (dissenting opinion), majority holding municipality not liable for neg- 
 ligence in repairing highway, although individual taxpayer bore part of expense; 
 Duggan v. Peabody, 187 Mass. 351, 73 X. E. 206, holding town liable for negli- 
 gence of superintendent of streets in charge of quarry from which town made 
 sales; Davies v. Boston, 190 Mass. 197, 76 N. E. 663, holding furnishing of privi- 
 leges of ferry for pay enterprise partly commercial in character and city liable 
 for negligence of servant on city ferry boat. 
 
 Cited in footnotes to Culver v. Streator, 6 L. R. A. 270, which holds city liable 
 for negligence of employee enforcing ordinance against unmuzzled dogs running at 
 large; Howard v. Worcester, 12 L. R. A. 160, which holds city not liable for neg- 
 ligence in blasting for schoolhouse; Snider v. St. Paul, 18 L. R. A. 151, which 
 holds city not liable for negligence of agents in providing and maintaining city 
 hall; Wilson v. Mitchell, 65 L.R.A. 158, which holds that municipality cannot 
 ratify act of waterworks superintendent in wrongfully connecting well with city 
 water mains so as to become liable for water taken from the well. 
 
 Cited in notes (23 L. R. A. 201) on liability of charitable institution for 
 negligence; (9 L. R. A. 210) on drains and sewers, as to liability of munici- 
 pality for its own negligence only; (5 L. R. A. 254) on liability of municipal 
 corporations for injuries resulting from defective streets, bridges, etc. 
 
 Distinguished in Taggart v. Fall River, 170 Mass. 327, 49 N. E. 622, holding 
 city not liable for negligence connected with work of opening street through its 
 land; Ulrich v. St. Louis, 112 Mo. 144, 34 Am. St. Rep. 372, 20 S. W. 466, hold- 
 ing corporation not liable to prisoner in workhouse for negligence; Haley v. Bos- 
 ton, 191 Mass. 293, 5 L.R.A.(N.S.) 1008, 77 N. E. 888, holding removal of ashes 
 from dwelling houses work of public nature and city not liable for negligence 
 of driver of ash cart. 
 Effect of contributory negligence. 
 
 Cited in Foy v. Winston, 126 N. C. 384, 35 S. E. 609. holding it not, of itself, 
 
2 L.R.A. 500] L. R. A. CASES AS AUTHORITIES. 316 
 
 negligence for blind man to pass along street without a guide; Robbins v. Spring- 
 field Street R. Co. 165 Mass. 36, 42 N. E. 334, holding defendant not relieved 
 from liability for unnoticed defects in plaintiff's eyesight, contributing to injury. 
 
 Cited in notes (12 L.R.A. 281) on contributory negligence as defense to action 
 for damages for personal injuries caused by negligence; (19 L.R.A. (N.S.) 163) 
 on duty of pedestrian on public street to avoid passing teams. 
 Instruction as to part only of the evidence. 
 
 Cited in Shattuck v. Eldredge, 173 Mass. 168, 53 N. E. 377; Hicks v. New 
 York, N. H. & H. R. Co. 164 Mass. 428, 49 Am. St. Rep. 471, 41 N. E. 721; Hop- 
 craft v. Kittredge, 162 Mass. 12, 37 N. E. 768; Moseley v. Washburn, 167 Mass. 
 362, 45 N. E. 753; Com. v. Cosseboom, 155 Mass. 301, 29 N. E. 463; Murray v. 
 Knight, 156 Mass. 522, 31 N. E. 646, holding trial judge not bound to single out 
 particular part of evidence for special comment. 
 Care on part of infirm persons. 
 
 Cited in Apperson v. Lazro, 44 Ind. App. 192, 87 N. E. 97, holding that fact 
 that man almost blind was walking unattended along side of road does not con- 
 stitute negligence; Keith v. Worcester & B Valley Street R. Co. 196 Mass. 483, 
 14 L.R.A.(N.S.) 653, 82 N. E. 680, holding instruction that person having defective 
 eyesight should take greater care in walking street than one of good sight prop- 
 erly refused; Brown v. Stevens, 136 Mich. 314, 99 N. W. 12, holding storekeeper 
 liable for injury of person deaf and of defective eyesight who fell through trap- 
 door opening in store, not having been properly warned. 
 
 Cited in notes (9 Am. St. Rep. 879; 14 L.R.A. (N.S.) 649) on care required of 
 one of defective sight, in using streets. 
 
 2 L. R. A. 502, LITTLEJOHN v. FITCHBURG R. CO. 148 Mass. 478, 20 N. E. 103. 
 Statntory liability for killing; passenger. 
 
 Cited in Worcester & S. Street R, Co. v. Travelers' Ins. Co. 180 Mass. 266, 57 
 L. R. A. 630, 91 Am. St. Rep. 275, 62 N. E. 364, holding statute fixing penalty for 
 negligent killing of passenger is new right of action to executor or adminis- 
 trator; Boston & M. R. Co. v. Hurd, 56 L. R. A. 208, 47 C. C. A. 619, 108 Fed. 
 120, holding section of statute fixing penalty for railroad company negligently 
 killing passenger not strictly penal; Doyle v. Fitchburg R. Co. 162 Mass. 71, 25 
 L. R. A. 159, 44 Am. St. Rep. 335, 37 N. E. 770, holding intestate could not have 
 released railroad company from liability for negligence resulting in death by 
 accepting free ticket with such proviso. 
 Liability of 'carrier to passenger riding on free pass. 
 
 Cited in Quimby v. Boston & M. R. Co. 150 Mass. 368, 5 L. R. A. 848, 23 N. E. 
 205, holding valid, agreement to assume risks of travel on accepting free pass. 
 Carrier's liability for otber carrier's negligence. 
 
 Approved in Frazier v. New York, N. H. & H. R. Co. 180 Mass. 429, 62 N. E. 
 731, holding railroad liable for injuries to passenger in terminal station of an- 
 other railroad used by it. 
 
 Cited in Chaffee v. Consolidated R. Co. 196 Mass. ,486, 82 X. E. 497. holding 
 carrier liable for its negligence resulting in collision though one of colliding cars 
 and the railway were under control of another corporation; McXamara v. Boston 
 & M. R. Co. 202 Mass. 495, 89 N. E. 131, holding defendant railway company re- 
 sponsible to plaintiff not its servant for negligence of its inspectors, though de- 
 fective car is received from connecting line for further transportation over contin- 
 uous route; Floody v. Great Northern R. Co. 102 Minn. 86, 13 L.R.A. (N.S.) 1199, 
 132 N. W. 875, on liability of one carrier for negligence of another. 
 
317 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 604 
 
 Cited in footnote to Murray v. Lehigh Valley R. Co. 32 L. R. A. 539, which 
 holds carrier liable to passenger for negligence of servant of other company over 
 whose track train runs. 
 Liability for defects. 
 
 ' Cited in Reynolds v. Merchants' Woolen Co. 168 Mass. 504, 47 N. E. 406, hold- 
 ing mill owner not negligent in putting into his mill machinery made by 
 reputable makers. 
 Remedy by action or Indictment for death by wroiiuful act. 
 
 Cited in Hudson v. Lynn & B. R. Co. 185 Mass 516, 71 N. E. 66, holding as to 
 defendant's liability no distinction is made between indictment and action of 
 tort for death by wrongful act, hence to support recovery in tort evidence must 
 warrant finding decedent was in exercise of due care and diligence as in case 
 of indictment. 
 Action for statutory penalty. 
 
 Cited in Younta v. Southwestern Teleg. & Teleph. Co. 192 Fed. 204, on action 
 for statutory penalty for refusal to furnish applicant telephone service. 
 
 2 L. R. A. 504, McWHORTER v. PENSACOLA & A. R. CO. 24 Fla. 417, 12 Am. 
 
 St. Rep. 220, 5 So. 129. 
 Salt against state. 
 
 Cited in Bloxham v. Florida C. & P. R. Co. 35 Fla. 712, 17 So. 902, holding 
 suit against comptroller to recover taxes, suit against state, and cannot be 
 brought; State v. Chicago, R. I. & P. R. Co. 61 Neb. 549, 85 N. W. 556, holding 
 Federal court without authority to enjoin state from suing in corporate capacity 
 to recover penalties due under maximum freight law; and right of state to sue 
 includes right to act through attorney general. 
 
 Cited in note (108 Am. St. Rep. 834, 844) as to when public officers assuming 
 to act for government are subject to suit. 
 Delegation of po-wer. 
 
 Cited in State ex rel. Godard v. Johnson, 61 Kan. 843, 49 L. R. A. 675, 60 Pac. 
 1068 (dissenting opinion), majority holding that court of visitation has no 
 legislative power to fix railroad rates; Interstate Commerce Commission v. Cin- 
 cinnati, X. 0. & T. P. R. Co. 167 U. S. 495, 42 L. ed. 252, 17 Sup. Ct. Rep. 896, 
 holding Interstate Commerce Commission has no power to determine that railroad 
 rates are reasonable; Storrs v. Pensacola & A. R. Co. 29 Fla. 623, 11 So. 226, 
 holding act authorizing railroad commissioners to fix rates valid; St. Louis, I. 
 M. & S. R. Co. v. Xeal, 83 Ark. 598, 98 S W. 958, holding association given au- 
 thority to designate standard height of drawbars for railroad cars and maximum 
 variation from such height not vested with legislative power; State ex rel. 
 Moodie v. Bryan, 50 Fla. 370, 39 So. 929, on delegation to railroad commissioners 
 of power concerning regulation of rates; State v. Atlantic Coast Line R Co. 56 
 Fla. 623, 32 L.R.A.(X.S.) 650, 47 So. 969, holding authority given by legislature 
 to railroad commission to make rules and regulations for intrastate transporta- 
 tion, for violation of which statutory penalty may be incurred is not delegation 
 of legislative power violative of principle of separate powers of governmental de- 
 partments, sustaining demurrage rule of commission; Michigan C. R. Co. v. Mich- 
 igan R. Commission, 160 Mich. 365, 125 X. W. 549, holding railroad commission 
 act valid; Saratoga Springs v. Saratoga Gas Electric Light & P. Co. 191 N. Y 
 146, 18 L.R.A.(X;S.) 724, 83 X. E. 693, 14 A. & E. Ann. Gas. 606, reversing 122 
 App. Div. 203; 107 X. Y. Supp. 341, sustaining statute empowering commission 
 to fix maximum charge for service by gas and electric light companies except as 
 to provision fixing time such charge is to be in force 
 
2 L.R.A. 504] L. R. A. CASES AS AUTHORITIES. 318 
 
 Cited in notes (33 L. R. A. 183) on legislative power to fix tolls, rates, or 
 prices; (2 L.R.A. 195) on authority of railroad commissioners; (62 Am. St. Rep. 
 295; 18 L.R.A. (N.S. ) 714) on power of legislature to delegate to commission right 
 to fix rates of public service corporation. 
 Control of court over discretionary official acts. 
 
 Cited in note (125 Am. St. Rep. 505) on mandamus to compel discretionary 
 duties. 
 
 2 L. R. A. 510, HORNUNG v. STATE, 116 Ind. 458, 19 N. E. 157. 
 Fiduciary capacity of county official. 
 
 Cited in McCollom v. Shaw, 21 Ind. App. 68, 51 N. E. 488, holding county 
 commissioners not entitled to compensation for services for which other persons 
 might have been employed. 
 Decision as to vote at election. 
 
 Cited in note (47 L. R. A. 562) on decision of tie vote at election. 
 
 2 L. R. A. 512, GAGE v. HAMPTON, 127 111. 87, 20 N. E. 12. 
 Who is a trespasser. 
 
 Cited in Mickey v. Barton, 194 111. 456, 62 N. E. 802, holding one entering 
 upon land rightfully held by another, who had cleared a part of it, mere tres- 
 passer; Phelps v. Randolph, 45 111. App. 494, holding entry with several men, 
 taking away property, cutting wire fence, and threatening to shoot one attempt- 
 ing to enter, forcible; Eichengreen v. Appel, 44 111. App. 20, holding owner may 
 peaceably eject tenant on sufferance; Harding v. Sandy, 43 111. App. 445, holding 
 owner might take from another possession of his own land; Prouty v. Tilden. 164 
 111. 170, 45 N. E. 445, holding mere trespass upon land of one in possession under 
 deed for twenty years not act of dispossession; Wahl v. Laubersheimer, 174 111. 
 343, 51 N. E. 860, holding violent entry on land not lawful, though breach of 
 peace may not result; Towle v. Quante, 246 111. 576, 92 X. E. 967, holding that 
 entry of holder of tax title after holder of paramount title goes into possession 
 is that of wrongdoer. 
 
 Limited in Bloomington v. Brophy, 32 111. App. 403, holding city with tit.le 
 can take possession without actual force. 
 Wlit- ii bar of statute of limitations complete. 
 
 Cited in Stalford v. Goldring, 197 111. 166, 64 N. E. 395, holding bar of stat- 
 ute not complete by mere payment of taxes without possession before entry by 
 paramount title; Mickey v. Barton, 194 111. 455, 62 N. E. 802, holding grantee 
 from one who had been in possession under colorable title for sufficient time can 
 remove cloud from title; Keppel v. Dreier, 187 111. 303, 58 N. E. 386. holding 
 statutory title under color of title, with possession and payment of taxes, need 
 not be pleaded if proved; Coverdale v. Curry, 48 111. App. 216, holding taking pos- 
 session by removing and resetting fence sustains action of forcible entry and 
 detainer; Sexton v. Carley, 47 111. App. 320, holding one claiming under lease, 
 after attempted forfeiture of prior ninety-five-year lease with possession of forty 
 years, does not acquire possession; Mecartney v. Morse, 137 111. 484, 24 N. E. 
 576, holding owner can maintain action to set aside tax deed, no possession under 
 it being shown; Travers v. McElvain, 181 111. 385, 55 N. E. 135, holding pos- 
 session under statute must be open, notorious, and exclusive to maintain eject- 
 ment; McCauley v. Mahon, 174 111. 388, 51 N. E. 829, holding ejectment will not 
 lie if possession does not concur with bar of prior paid taxes ; Miller v. Stalker, 
 158 111. 523, 42 N. E. 79, holding color of title, possession, and payment of taxes 
 will maintain action to remove cloud on title; Coward v. Coward, 148 111. 274, 
 
319 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 517 
 
 35 X. E. 759, and Chicago v. Middlebrooke, 143 111. 270, 32 N. E. 457, holding 
 action to remove cloud on title, by one claiming under color of title, payment of 
 taxes, and possession, maintainable; Gage v. Smith, 142 111. 195, 31 N. E. 430, 
 holding possession must be coupled with color of title under tax deed and payment 
 of taxes for term of years, to bar true owner; White v. Harris. 206 111. 586, 69 
 N. E. 519, holding ejectment plaintiff, claiming under 7, limitation law, must 
 show payment of taxes for seven successive years after acquiring color of title, 
 and possession thereafter taken. 
 
 Cited in footnotes to Alexander v. Wilcox, 9 L. R. A. 735, which holds title ac- 
 quired as against lien of tax deed by ten years' adverse possession; Sontag v. 
 Bigelow, 16 L. R. A. 326, which holds master's deed in partition proceedings suf- 
 ficient color of title. 
 
 Cited in notes (9 L. R. A. 773, 774) on tax title; adverse possession under 
 color of title; (13 L. R. A. 207) on defenses in actions of ejectment; (6 L. R. A. 
 833) on adverse possession; (4 L. R. A. 647) on adverse possession; statutory 
 bar; (11 L.R.A. (N.S.) 775) on invalid tax deed as color of title within general 
 statutes of limitations. 
 Who may maintain action to Quiet title. 
 
 Cited in Hughey v. Winborne. 44 Fla. 608, 33 So. 249, holding wrongful forcible 
 possession will not support bill to remove cloud; Glos v. Davis, 216 111. 535, 75 
 N". E. 208, holding possession taken by fencing with wire strung upon posts 
 eight feet apart and putting up "For Sale" sign sufficient to give right to main- 
 tain bill to remove cloud; Le Sourd v. Edwards, 236 111. 173, 127 Am. St. Rep. 
 287, 86 N. E. 212, holding possession taken by holder of legal title by putting 
 out fish traps and blazing trees upon submerged land sufficient as against one 
 holding color of title and bringing action to quiet title. 
 
 Cited in note (45 Am. St. Rep. 376) on who may maintain action to remove 
 cloud on title. 
 
 Distinguished in Montana Ore Purchasing Co. v. Boston & M. Consol. Copper 
 & S. Min. Co. 27 Mont. 541, 71 Pac. 1005, holding equity suit to quiet title 
 maintainable by possessor of apex of vein claiming extra-lateral rights. 
 
 2 L. R. A. 517, McIXTIRE v. LEVERING, 148 Mass. 546, 12 Am. St. Rep. 594, 
 
 20 N. E. 191. 
 Evidence of character. 
 
 Cited in Rowland v. George F. Blake Mfg. Co. 156 Mass. 569, 31 N. E. 656, 
 holding evidence of good reputation of plaintiff in libel action properly ex- 
 cluded; Glace v. Hummel, 4 Dauphin Co. Rep. 7, 24 Pa. Co. Ct. 556; Olson v. 
 Tvete, 46 Minn. 226, 48 N. W. 914; Bank of Miller v. Richmon, 64 Neb. 113, 89 
 X. W. 627, holding proof of plaintiff's general reputation admissible in first 
 instance in action for malicious prosecution; Hlubek v. Pinske, 84 Minn. 365, 87 
 N. E. 939, holding evidence as to plaintiff's bad character may be given in action 
 for malicious prosecution; Stubbs v. Mulholland, 168 Mo. 79, 67 S. W. 650, hold- 
 ing, in action for malicious prosecution, malice may be inferred from failure to 
 inquire as to character of accused; Emory v. Eggan, 75 Kan. 83, 88 Pac. 740, 
 holding in action for malicious prosecution evidence of plaintiff's reputation for 
 honesty and fair dealing at certain place is inadmissible to prove want of prob- 
 able cause unless it be shown plaintiff in alleged malicious prosecution knew or 
 should have known such reputation; Thurkettle v. Frost, 137 Mich. 121, 100 N. 
 W. 283, 4 A. & E. Ann. Cas. 836, holding evidence of plaintiff's previous good 
 reputation admissible as bearing upon question of probable cause in action for 
 malicious prosecution; Shea v Cloquet Lumber Co. 97 Minn. 42. 105 N. W. 552, 
 
2 L.R.A. 617] L. R. A. CASES AS AUTHORITIES. 320 
 
 holding plaintiff entitled to introduce evidence of his general reputation as peace- 
 able citizen on issue as to probable cause in action for malicious prosecution; 
 Martin v. Corscadden, 34 Mont. 320, 86 Pac. 33, holding evidence of previous 
 bad reputation of plaintiff in action for malicious prosecution admissible to rebut 
 proof of want of probable cause, and mitigate damages but evidence as to specific 
 acts not generally known in community not within rule; Glace v. Hummel, 10 Pa. 
 Dist. R. 114, holding plaintiff in action for malicious prosecution may give evi- 
 dence of his good character known to defendant; Carroll v. Central R. Co. 134 
 Fed. 686, holding evidence to prove good character of plaintiff before character 
 attacked inadmissible in action for malicious prosecution. 
 
 Distinguished in Geary v. Stevenson, 169 Mass. 32, 47 X. E. 508, holding evi- 
 dence of plaintiff's good reputation inadmissible in action for false imprison- 
 ment; Richard v. Boland, 5 Misc. 554, 26 N. Y. Supp. 57, holding evidence as to 
 plaintiff's good character inadmissible in action for malicious prosecution for 
 act not involving moral turpitude. 
 Malicious prosecution. 
 
 Cited in Shattuck v. Simonds, 191 Mass. 509, 72 N. E. 122, holding plaintiff in 
 action for malicious prosecution entitled to go to jury upon showing of bad faith 
 and such doubt of his guilt as shows want of probable grounds which would 
 lead reasonable men to believe him guilty. 
 
 Cited in note in (26 Am. St. Rep. 156, 157, 160) on malicious prosecution of 
 criminal charge. 
 
 2 L. R. A. 519, LORD v. EDWARDS, 148 Mass. 476, 12 Am. St. Rep. 581, 20 X. 
 
 E. 161. 
 Passing- of title on sale of personal property, who must bear loss 
 
 Cited in Alden v. Hart 3 161 Mass. 581, 37 N. E. 742, holding it unnecessary to 
 decide question whether, in contract for sale and delivery, title to coal passes 
 when put aboard vessel for shipment; Mobile Fruit & Trading Co. v. McGuire, 
 81 Minn. 235, 83 N. W. 833, holding buyer assumes risk of deterioration incident 
 to course of transportation; McKee v. Wild, 52 Neb. 12, 71 X. W. 958, holding 
 warranty of quality in sale of corn applied to corn when delivered for shipment: 
 Murphy v. Lever, 147 111. App 464, holding warranty steam pressure capacity 
 of boiler in lease not continuous where no words indicated such intention. 
 
 Cited in footnotes to Anderson v. Crisp, 18 L. R. A. 419, which holds contract 
 for sale of certain number of unsegregated brick to be taken from kiln does not 
 pass title; Tyler Lumber Co. v. Charlton, 55 L. R. A. 301, which holds title does 
 not pass by acceptance of offer to sell lumber piled at mill to be inspected by 
 common employee. 
 
 Cited in notes (5 L. R. A. 703) on sale of goods by sample; (17 L. R. A. 177, 
 180) on essentials of a valid sale of goods; (62 L. R. A. 798) on effect of con- 
 tract to ship goods f. o. b.; (26 L.R.A.(N.S.) 2) on sufficiency of selection or 
 designation of goods sold out of larger lot. 
 
 Distinguished in Carleton v. Lombard, 149 N. Y. 604, 44 N. E. 1121, holding 
 manufacturers liable for latent defects in goods corresponding in description to 
 those ordered. 
 
 2 L. R. A. 520, LOUISVILLE, N. A. & C. R. CO. v. BUCK, 116 Ind. 566, 9 Am. 
 
 St. Rep. 883, 19 N. E. 453. 
 Pleading. 
 
 Cited in Chicago & E. R. Co. v. Lee, 17 Ind. App. 219, 46 X. E. 543, holding 
 complaint insufficient because no allegation of want of knowledge of change in 
 railroad roadbed making it unsafe to work in; Louisville, N. A. & C. R. Co. v. 
 
321 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 520 
 
 Sandford, 117 Ind. 266, 19 X. E. 770, holding allegation of ignorance of baggage 
 master of defect in railroad bridge essential to recovery; Evansville & T. H. R. 
 Co. v. Duel, 134 Ind. 158, 33 X. E. 355, holding knowledge by master, actual or 
 imputed, of defective condition of engine, must be alleged; Cleveland, C. C. & 
 St. L. R. Co. v. Starks, 174 Ind. 347, 92 N. E. 54, holding that complaint for 
 negligently caused death of man leaving widow and minor children is not de- 
 fective because of omission of express allegation of damages. 
 When master liable. 
 
 Cited in Louisville, X. A. & C. R. Co. v. Heck, 151 Ind. 308, 50 N. E. 988, hold- 
 ing train despatcher vice principal; Cincinnati, H. & D. R. Co. v. McMullen, 117 
 Ind. 444, 10 Am. St. Rep. 67, 20 X. E. 287, holding railroad company must pro- 
 vide and maintain in good condition brake handles; Cincinnati, I. St. L. & C. R. 
 Co. v. Roesch, 126 Ind. 447, 26 X. E. 171, holding railroad company liable for 
 putting cable used in unloading car to unusual strain; Indiana, I. & I. R. Co. v. 
 Snyder, 140 Ind. 653, 39 N. E. 912, holding railway company liable for defective 
 handle made by carpenter in its shops; Indiana Xatural & Illuminating Gas Co. 
 v. Marshall, 22 Ind. App. 124. 52 X. E. 232, holding master undertakes that ap- 
 pliance for electric-light-pole climbing is fit for that use; Cincinnati, I. St. L. & 
 C. R. Co. v. Lang, 118 Ind. 583, 21 X. E. 317, holding servant sent on special 
 order not bound to know of the running of irregular train; Rogers v. Leyden, 127 
 Ind. 58, 2G X. E. 210. holding servant can recover^ although aware of unsafe 
 place, if ignorant that peril is increased; Pittsbiirgh, C. C. & St. L. R. Co. v. 
 Woodward. 9 Ind. App. 172, 36 X'. E. 442, holding brakeman does not assume risk 
 of latent defect in track and cars; Salem Stone & Lime Co. v. Tepps, 10 Ind. App. 
 519, 38 N. E. 229. holding quarry stripper not required to inspect machinery to 
 discover latent defect; Louisville, X. A. & C. R. Co. v. Howell, 147 Ind. 270, 45 
 N. E. 584, holding employee not bound to discover broken coupling link when he 
 had not used it, and break was not obvious; Pennsylvania Co. v. Burgett, 7 
 Ind. App. 346, 33 X". E. 914, holding that servant cannot recover when aware of 
 defects; Levey v. Bigelow, 6 Ind. App. 694, 34 X. E. 128, holding minor with 
 knowledge of danger of handling safe appliance takes risk of employment; Brazil 
 Block Coal Co. v. Gibson, 160 Ind. 328, 98 Am. St. Rep. 281, 66 X. E. 882, holding 
 servant may rely on master's duty to furnish reasonably safe and proper ap- 
 pliances and inspect same having been performed, unless defects obvious to serv- 
 ant while giving proper attention to duties of his employment. 
 
 Cited in footnotes to Sweet v. Ohio Coal Co. 9 L. R. A. 861, which holds master 
 may conduct business in own way. though other method less hazardous; Minty v. 
 Union P. R. Co. 4 L. R. A. 409. which holds that it will be presumed, in case 
 of derailment, that suitable instrumentalities provided; Louisville & X. R. Co. v. 
 Hall, 4 L. R. A. 710. which holds company liable to brakeman for injury by low 
 bridge; Goodrich v. Xew York C. & H. R. R. Co. 5 L. R. A. 750, which holds mas- 
 ter liable for using foreign cars with defective coupling apparatus; Lehigh & W. 
 Coal Co. v. Hayes, 5 L. R. A. 441, which holds master furnishing ordinary appli- 
 ances not liable for failure to furnisn unusual one; Tennessee Coal, I. & R. Co. v. 
 Kyle, 12 L. R. A. 103, which holds running freight train without cow-catcher 
 negligence; Pittsburg & L. E. R. Co. v. Henley, 15 L. R. A. 384, which holds 
 use of two coupling devices not negligence per se; Philadelphia & R. R. Co. v. 
 Huber, 5 L. R. A. 439, which holds brakeman not negligent per se in using 
 brake manifestly defective ; Little v. Southern R. Co. 66 L.R.A. 509, which denies 
 employer's liability for injury to employee proximately caused by his violation 
 of a penal statute or municipal ordinance although employer directed such vio- 
 lation; Crawford v. United R. & E. Co. 70 L.R.A. 489, which holds street car 
 company liable for injury to employee by defect in car due to custom in leaving 
 L.R.A. Au. Vol. L 21. 
 
2 L.R.A. 520] L. R. A. CASES AS AUTHORITIES. 32 
 
 it for several hours of night in public street after inspection, without rule or 
 regulation for guarding from negligent or wanton injury. 
 
 Cited in notes (17 L. R. A. 77) on action by parent for death of child caused by 
 negligence; (41 L. R. A. 40) on actual knowledge as an element of an employer's 
 liability to an injured servant; (41 L. R. A. 46) on liability of employer predi- 
 cated on constructive knowledge as to the condition of machinery and appa- 
 ratus; (41 L. R. A. 128) on obligation of master and servant as to inspection 
 of instrumentalities in use; (5 L. R. A. 172) on action for damages for death 
 caused by negligence; (4 L. R. A. 797) on duty of employer to provide safe ma- 
 chinery, tools, and appliances; (4 L. R. A. 261) on liability for death caused by 
 negligence; (13 L. R. A. 375) as to when servant assumes risk of implements fur- 
 nished; (5 L.R.A. 340) on the law of the land; (17 L.R.A.(N.S.) 77) on servant's 
 assumption of risk from latent danger or defect; (97 Am. St. Rep. 888) on right 
 of recovery by employees accepting extra hazardous duties; (98 Am. St. Rep. 
 310) on liability to servant for injuries due to defective machinery and appli- 
 ances. 
 Effect of Sunday law. 
 
 Cited in Gross v. Miller, 93 Iowa, 80, 26 L. R. A. 608, 61 N. W. 385, holding 
 Sunday hunting no bar to action for being shot; Kansas City v. Orr, 62 Kan. 
 68, 50 L. R. A. 786, 61 Pac. 397, holding city cannot defend for negligence on 
 ground that w T ork was performed on Sunday; Solarz v. Manhattan R. Co. 8 IMi>c. 
 658, 29 N. Y. Supp. 1123, holding Sunday law cannot be pleaded as defense; 
 Hoadley v. International Paper Co. 72 Vt. 81, 47 Atl. 169, holding no "defense that 
 decedent was working on Sunday; Western U. Teleg. Co. v. Yopst, 118 Ind. 254, 
 
 3 L. R. A. 227, 20 N. E. 222, holding allegation of necessity essential to valid 
 Sunday contract. 
 
 Annotation cited in Smith v. Marion Fruit Jar & Bottle Co. 84 Kan. 553, 114 
 Pac. 845, on violation of Sunday law as contributory negligence. 
 
 Cited in footnotes to Gross v. Miller, 26 L. R. A. 605, which holds violation of 
 Sunday law by hunting no defense to action for negligent injury; Dugan v. 
 State, 9 L. R. A. 321, which holds pilot on board, carrying pleasure parties on 
 Sunday, punishable; Handy v. Globe Pub. Co. 4 L. R. A. 466, which holds it un- 
 necessary to plead illegality of contract for publishing Sunday newspapers: Van 
 Auken v. Chicago & W. M. R. Co. 22 L. R. A. 33, which holds riding home from 
 station quietly on Sunday evening not labor. 
 
 Cited in note (36 L.R.A. (N.S.) 548) on violation of Sunday law as defense to 
 action for personal injuries. 
 "When action for dama&es maintainable. 
 
 Cited in Clore v. Mclntire, 120 Ind. 264, 22 X. E. 128, holding action by admin- 
 istrator for death by negligence of intestate maintainable. 
 
 Cited in footnote to O'Reilly v. New York & N. E. R. Co. 6 L. R. A. 719, holding 
 action may be maintained in one state by personal representative of one killed 
 by carrier in another state, where cause of action survives by statute of the 
 two states. 
 
 Cited in note (7 L. R. A. 154) on action for damages for death caused by negli- 
 gence. 
 Damages to support action. 
 
 Cited in Hunt v. Conner, 26 Ind. App. 50, 59 N. E. 50, holding damages to 
 wife and children for loss of services of father might include value of personal 
 services and paternal assistance: Wabash R. Co. v. Cregan, 23 Ind. App. 4, 54 N. 
 E. 767, holding pecuniary loss not implied from decease of younger brother not 
 bound to contribute to support of older brothers; Tuteur v. Chicago & N. W. R. 
 
323 L, R. A. CASES AS AUTHORITIES. [2 L.R.A. 520 
 
 Co. 77 Wis. 509, 46 N. W. 897, holding jury can consider reasonable expectation 
 of pecuniary benefit to children, from loss of mother, by way of support or other- 
 wise; Korrady v. Lake Shore & M. S. R. Co. 131 Ind. 262, 29 N. E. 1069, holding 
 presumption that father's services are of value to wife and infant children; 
 Pape v. Wright, 116 Ind. 504, 19 N. E. 459, holding middleman can recover 
 commission for procuring purchaser of patented articles, although sale by owner 
 illegal; Dugan v. Myers, 30 Ind. App. 233, 96 Am. St. Rep 341, 65 N. E. 1046, 
 holding 'minor son nineteen years of age might share in fund recovered for 
 father's death by wrongful act, though son not supported by father, nor father 
 receiving son's wages; Consolidated Stone Co. v. Staggs, 164 Ind. 33U, 73 N. E. 
 695, holding in action for wrongfully causing death jury should be confined to 
 compensation for pecuniary loss, but within range of evidence bearing on that 
 subject, question of damages one of fact. 
 
 Cited in footnotes to Fordyce v. McCants, 4 L. R. A. 296, which holds only 
 nominal damages recoverable for death of child not shown to have assisted 
 father; Illinois C. R. Co. v. Slater, 6 L. R. A. 418, which authorizes allowance to 
 infant for loss, by injury, of earnings during minority. 
 
 Cited in note (12 Am, St. Rep. 379) on measure of damages for causing death. 
 Questions for Jury. 
 
 Cited in Pittsburgh, C. C. & St. L. R. Co. v. Burton, 139 Ind. 378, 47 Am. St. 
 Rep. 274, 37 N. E. 150, holding jury should determine amount of damages for 
 loss of services of husband by death; Indiana, I. & I. R. Co. v. Bundy, 152 Ind. 
 596, 53 N. E. 175, holding jury should decide whether rear-end brakemen knew of 
 open wires over which he tripped in uncoupling car; Lake Shore & M. S. R. Co. v. 
 Mclntosh, 140 Ind. 269, 38 N. E. 476, holding court, and not jury, should draw 
 conclusion as to proximate cause of death from facts found; Wabash & W. R. Co. 
 v. Morgan, 132 Ind. 440, 31 N. E. 661, holding instruction as to duty of master 
 and servant to ascertain defects and look out for danger proper; Cleveland, C. C. 
 & St. L. R. Co v. Drumm, 32 Ind. App. 549, 70 N. E. 286, on submission to jury 
 of question of damages allowable for causing death by wrongful act. 
 Special verdict. 
 
 Cited in Suit v. Warren School Twp. 8 Ind. App. 659, 36 N. E. 291, holding spe- 
 cial verdict should have found facts upon which subscription to school was con- 
 ditioned; Cincinnati, I. St. L. & C. R. Co. v. Grames, 8 Ind. App. 134, 34 N. E. 613, 
 holding special verdict does not call for instructions on law; Louisville, N. A. & 
 C. R. Co. v. Hart, 119 Ind. 281, 4 L. R. A. 553, 21 N. E. 753, holding special 
 verdict, silent as to condition and operation of locomotive, to be regarded as find- 
 ing against plaintiff; Rietman v. Stolte, 120 Ind. 317, 22 N. E. 304, holding spe- 
 cial verdict having found servant's knowledge of defect, he cannot recover; 
 Nicodemus v. Simons, 121 Ind. 569, 23 N. E. 521, holding objection as to silence of 
 verdict upon material fact waived; O'Neal v. Chicago & I. Coal R. Co. 132 Ind. 
 113, 31 N. E. 669, holding special verdict required finding of peril of notoriously 
 uneven track as incident to service; Louisville, N. A. & C. R. Co. v. Bates, 146 
 Ind. 567, 45 N. E. 108, holding special verdict did not find facts showing foreign 
 car was not duly inspected ; Boyer v. Robertson, 144 Ind. 607, 43 N. E. 879, hold- 
 ing special verdict defective which found evidence, but not inference from it; 
 Evansville & R. R. Co. v. Maddux, 134 Ind. 579, 33 X. E. 345, holding special ver- 
 dict silent as to manner of loading car, fact must be held to be found against one 
 bound to prove it; Evansville & T. H. R. Co. v. Taft, 2 Ind. App. 242, 28 N. E. 443, 
 holding venire de novo will not be granted when special verdict sustained by facts 
 found; Fisher v. Fisher, 8 Ind. App. 666, 36 N. E. 296, holding illegality of con- 
 sideration must be found in special verdict to sustain defense in action on note; 
 Lake Shore & M. S. R. Co. v. Kurtz, 10 Ind. App. 63, 35 N. E. 201, holding com- 
 
2 L.R.A. 520] L. R. A. CASES AS AUTHORITIES. 324 
 
 plaint defective for lack of averment of knowledge of defect by master, not cured 
 by special findings of jury. 
 Declaration as part of transaction. 
 
 Cited in Slavens v. Northern P. R. Co. 38 C. C. A. 158, 97 Fed. 262, holding 
 *leclaration of deceased workman before accident, that he understood the dangv." 
 of place he was working in, admissible; State v. Murphy, 16 R. I. 531, 17 Atl. 
 998, holding declaration of deceased as to his assailants, made within fifteen min- 
 utes thereafter, admissible; Ohio & M. R. Co. v. Stein, 133 Ind. 253, 19 L. R. A. 
 749, 31 N. E. 180, holding declaration of engineer of locomotive drawing train, 
 made within few minutes of accident, admissible; Keyes v. State, 122 Ind. 530, 
 23 N. E. 1097, holding remark made in quarter of a minute after shot fired ad- 
 missible; Green v. State, 154 Ind. 658, 57 N. E. 637, holding exclamation of de- 
 ceased, immediately after shot fired, admissible; Louisville, E. & St. L. R. Co. v. 
 Berry, 2 Ind. App. 433, 28 N. E. 714, holding declaration of deceased, immedi- 
 ately after accident, admissible; Cross Lake Logging Co. v. Joyce, 28 C. C. A. 
 252, 55 U. S. App. 221, 83 Fed. 991, holding statement by injured man, accusing 
 first man coming to his assistance of being indirect cause of accident, admissible; 
 Patterson v. Hochster, 38 App. Div. 401, 56 N. Y. Supp. 467, holding declaration 
 of deceased as to injury, while lying on sidewalk with leg in coal hole, admis- 
 sible; Peirce v. Van Dusen, 24 C. C. A. 293, 47 U. S. App. 339, 78 Fed. 707, hold- 
 ing declaration of engineer of locomotive that backed the car by which hand in- 
 jured admissible; Washington & G. R. Co. v. McLane, 11 App. D. C. 223, holding 
 declaration of deceased boy of fourteen, while lying between tracks with legs 
 severed, admissible as to cause of accident; Metropolitan R. Co. v. Collins. 1 App. 
 
 D. C. 387, holding declaration of transfer agent of street car line, that conductor 
 started car without his authority, inadmissible; Hinchcliffe v. Koontz, 121 Ind. 
 424,' 16 Am. St. Rep. 403, 23 N. E. 271, holding letter in reference to hiring, 
 written day before and received day after contract made, admissible; Ft. Wayne 
 & W. Valley Traction Co. v. Roudebush, 173 Ind. 63, 88 X. E. 676, holding admis- 
 sible, declaration of motorman lying in wreckage, as to cause of collision; Puls 
 v. Grand Lodge, A. 0. U. W. 13 N. D. 573, 102 N. W. 165, holding testimony as to 
 what deceased said as to supposed cause of his death part of res gestae; Dunn 
 v Chicago, R. I. & P. R. Co. 130 Iowa, 596, 6 L.R.A.(N.S.) 459, 107 N. W. 616, 
 8 A. & E. Ann. Gas. 226 (dissenting opinion), on admissibility of statement 
 made by deceased immediately after his injury as to manner in which he had been 
 luirt; Cincinnati. L. & A. Electric Street R. Co. v. Stable, 37 Ind. App. 545. 70 X. 
 
 E. 551, holding testimony that immediately after collision motorman stated to 
 conductor that brakes failed on account of wet rails and caused accident admissi- 
 ble as part of res geste; Pittsburgh, C. C. & St. L. R. Co. v. Haislup, 39 Ind. App. 
 
 -'397, 79 N. E. 1035, holding testimony as to plaintiff's declarations to conductor 
 as to cause of plaintiff's fall from train admissible as part of res gestate; Bo wen 
 '.v. White, 26 R. I. 73, 58 Atl. 252, holding letter written by plaintiff himself in- 
 admissible where not voluntarily and spontaneously made so nearly in presence 
 of transaction to which it related as necessarily to exclude idea of design or 
 -deliberation; Leach v. Oregon Short Line R. Co 29 Utah, 295, 110 Am. St. Rep. 
 708, 81 Pac. 90, holding declaration of conductor: "My God, Go back and see if 
 you can find L . The bridge knocked him off," admissible in action to recover for 
 negligently causing death of L , a brakeman; Stevens v. Friedman, 58 W. Va. 
 84, 51 S. E. 132, holding trial and acquittal subsequent to alleged assault and 
 battery inadmissible as part of res gestae; R. v. McMahon, 18 Ont. Rep. 518, 
 holding statements made by the deceased after he came to the house of a witness 
 ivhere he died were not admissible as part of the res gestae. 
 
325 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 528 
 
 Cited in notes (19 L.R.A. 749) on declarations of injured party and third per- 
 sons, when admissible; (27 Am. St. Rep. 907) on evidence of res gestae; (11 
 Eng. Rul. Cas. 293) on admissibility of declarations as part of the res gestae. 
 
 Disapproved in Chicago, B. & Q. R. Co. v. Johnson, 36 111. App. 566, holding 
 statement of injured woman, made to her daughter immediately after accident a 
 to its cause, inadmissible. 
 Public policy affecting action. 
 
 Cited in Levy v. Spencer, 18 Colo. 538, 36 Am. St. Rep. 303, 33 Pac. 415, holding 
 action to enforce illegal executory contract will not be sustained; Winchester 
 Electric Light Co. v. Veal, 145 Ind. oil, 41 N. E. 334, holding county treasurer 
 cannot recover on notes given for public money illegally loaned by him. 
 
 2 L. R. A. 526, ROYAL v. AULTMAN-TAYLOR CO. 116 Ind. 424, 19 N. E. 202. 
 Demand of performance. 
 
 Cited in Van Horn v. Mercer, 29 Ind. App. 283, 64 N. E. 531, holding demand 
 unnecessary before suit for breach of agreement to support grantor in considera- 
 tion of land conveyed, which grantee has sold. 
 
 Distinguished in Bonniwell v. Madison, 107 Iowa, 89, 77 N. W. 530, holding- 
 where there is an evident waiver of performance of condition subsequent demand 
 is necessary before forfeiture. 
 Conditions subsequent. 
 
 Cited in note (93 Am. St. Rep. 574) on mode of taking advantage of breach 
 of condition subsequent. 
 
 Distinguished in Van Horn v. Mercer, 29 Ind. App. 280, 64 N. E. 531, holding- 
 estate upon condition subsequent not created by deed providing that grantee's 
 agreement to support grantor should be a lien for certain sum. 
 Waiver. 
 
 Cited in Ohio Valley Buggy Co. v. Anderson Forging Co. 168 Ind. 603, 81 N. E. 
 574, 11 A. & E. Ann. Cas. 1045, holding that acceptance of payment after vendee 
 was in default is not w-aiver by vendor of right to rescind contract to deliver 
 goods in instalments. 
 
 2 L. R. A. 528, ST. JOHXSBURY & L. C. R. CO. v. WILLARD, 61 Vt. 134, 15- 
 
 Am. St. Rep. 886, 17 Atl. 38. 
 Ownership of improvements after foreclosure. 
 
 Cited in St. Louis, K. & S. W. R. Co. v. Nyce, 61 Kan. 412, 48 L. R. A. 249, 5fr 
 Pac. 1040, holding owner of land by foreclosure cannot claim value of improve- 
 ments by railroad, made before foreclosure; Nittany Valley R. Co. v. Empire- 
 Steel & I. Co. 218 Pa. 230, 67 Atl. 349, on absence of right of mortgagee to im- 
 provements upon land by railroad company subsequent to mortgage. 
 
 Cited in notes (11 L. R. A. 727) on whatever is affixed to the soil belongs- 
 thereto; (16 L. R. A. 805) on value of improvements made by one taking prop- 
 erty by eminent domain as an element of damages. 
 
 Distinguished in Tinsley v. Atlantic Mines Co. 20 Colo. App. 72, 77 Pac. 12 r 
 holding claimant under tax title could not be compelled to litigate title in fore- 
 closure suit. 
 How senior mortne affected by foreclosure of Junior. 
 
 Cited in Buzzell v. Still, 63 Vt. 495, 25 Am. St. Rep. 777, 22 Atl. 619, holding 
 senior mortgagee not barred by junior mortgagee's foreclosure, though party to 
 action. 
 Title to improvements on land by wrongdoer. 
 
 Cited in McClarren v. Jefferson School Twp. 169 Ind. 144, 13 L.R.A.(N.S ) 419, 
 82 N. E. 73, 13 A. & E. Ann. Cas. 978, holding owner of land entered upon by 
 
2 L.R.A. 528] L. R. A. CASES AS AUTHORITIES. 326 
 
 township for school purposes and upon which township had built schoolhouse 
 and fences with owner's acquiescence could not recover value of improvements 
 in condemnation proceedings subsequent to entry. 
 
 Cited in note (66 L.R.A. 43, 45) on title to improvements by railroad on land 
 before condemnation. 
 
 2 L. R. A. 529, McCLEEREY v. WAKEFIELD, 76 Iowa, 529, 41 N. W. 210. 
 Parol authority to insert grantee's name in deed. 
 
 Cited in Lafferty v. Lafferty, 42 W. Va. 789, 26 S. E. 202, holding agent with 
 parol authority may fill blank in deed w r ith grantee's name; Exchange Nat. Bank 
 v. Fleming, 63 Kan. 142, 65 Pac. 213, upholding deed with grantee's name filled 
 in by equitable owner under parol authority of legal owner; Hall v. Kary, 133 
 Iowa, 468, 119 Am. St. Rep. 639, 110 X. W. 930; Clemmons v. McGeer, 63 Wash. 
 450, 115 Pac. 1081, holding that presumption of authority of grantor's agent 
 to fill in grantee's name arises from agent's possession of deed in blank; Au- 
 gustine v. Schmitz, 145 Iowa, 595, 124 X. W. 607, holding that grantee to whom 
 deed is delivery in blank can fill in his vendee's name. 
 
 Cited in note (5 Eng. Rul. Cas. 182) on authority to fill in grantee's name in 
 deed. 
 Estoppel. 
 
 Cited in note (5 L. R. A. 121) on estoppel by deed. 
 Effect of notice on purchaser's title. 
 
 Cited in Zuber v. Johnson, 108 Iowa, 277, 79 X. W. 76, holding purchaser at 
 execution sale bound to take notice of asserted claim to title by one in possession ; 
 Mason Lumber Co. v. Collier, 74 Mich. 249, 41 X. W. 913, holding holder of legal 
 title with notice and in fraud of equitable title is trustee for equitable owner. 
 
 Cited in footnote to Odom v. Riddick, 7 L. R. A. 118, which holds bona fide pur- 
 chaser's title not impaired by grantor's undeclared lunacy. 
 
 Cited in notes (10 L.R.A. 677) on protection of bona fide holder of commercial 
 paper; (13 L.R.A. (N.S.) 76, ]20) on possession of land as notice of title. 
 Release of security as consideration. 
 
 Cited in note (33 L.R A. (X.S.) 61) on release of security for old debt as valuable 
 consideration. 
 
 2 L. R. A. 532, WEEKS v. TRASK, 81 Me. 127, 16 Atl. 413. 
 
 2 L. R. A. 534, MARSHALL v. FARMERS & M. SAV. BANK, 85 Va. 676, 17 
 
 Am. St. Rep. 84, 8 S. E. 586. 
 Personal liability of bank or corporation officer. 
 
 Cited in Prescott v. Haugliey, 65 Fed. 658, holding national bank directors 
 individually liable for damages caused by false and fraudulent representations; 
 Toledo Sav. Bank v. Johnston, 94 Iowa, 217, 62 X. W. 748, holding director re- 
 sponsible to bank for gross neglect or inattention to official duties; Union Xat. 
 Bank v. Hill, 148 Mo. 391, 71 Am. St. Rep. 615, 49 S. W. 1012, holding direct- 
 ors chargeable with knowledge of illegal loans; Campbell v. Watson, 62 X. J. 
 Eq. 440, 50 Atl. 120, holding bank directors failing to observe by-law requir- 
 ing quarterly examination of banks, relying upon cashier's statements and state 
 examination, liable to receiver for cashier's peculations; Briggs v. Spanieling, 
 141 U. S. 171, 35 L. ed. 677, 11 Sup. Ct. Rep. 924 (dissenting opinion), ma- 
 jority holding defendant directors not responsible for wrongful acts of other 
 -directors or agents under the evidence; Kemp v. Xational Bank, 48 C. C. A. 220, 
 
327 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 540 
 
 109 Fed. 54, referring to, but not deciding, question of individual liability of 
 bank officer to depositor for fraud. 
 
 Cited in footnote to Boyd v. Mutual Fire Asso. 61 L. R. A. 918, which sus- 
 tains right of directors to benefit of limitations in action for misfeasance or mal- 
 feasance in office. 
 
 Cited in notes (4 L. R. A. 747) on equitable suits against directors; (9 L. R. 
 A. 652) on purchase of shares of stock of corporation by another corporation, 
 as to liability of directors of corporation; (13 L. R. A. 371) on banking a le- 
 gitimate object of copartnership as to relation between bank officials and de- 
 positors; (55 L. R. A. 756, 759, 760, 769) on liability of directors of corpora- 
 tion to corporation; (3 L.R.A.(N.S.) 440) on liability of directors for failure to 
 close insolvent bank; (48 Am. St. Rep. 928) on personal liability of corporate 
 officers to third persons; (54 Am. St. Rep. 732, 733) on liability of bank directors 
 for loss of deposit. 
 Rig'ht to sue bank. 
 
 Cited in Union Nat. Bank v. Hill, 148 Mo. 394, 71 Am. St. Rep. 615, 49 S. W. 
 1012, holding bank directors' liable to shareholders and creditors for negligence 
 on failure of assignee to sue. 
 
 Cited in footnote to Pickle v. People's Nat. Bank, 7 L. R. A. 93, which holds 
 acceptance of check necessary to give right of action against bank. 
 Degree of care required of bank officer. 
 
 Cited in Warren v. Robison, 19 Utah, 318, 75 Am. St. Rep. 734, 57 Pac. 287, 
 holding bank directors not excusable for ignorance, inexperience, or honesty of 
 intentions; Warren v. Robison, 19 Utah, 308, 75 Am. St. Rep. 734, 57 Pac. 287, 
 holding bank directors must exercise ordinary care, skill, and diligence; Stone 
 v. Rottman, 183 Mo. 581, 82 S. W. 76, holding directors of bank and members of 
 its discount and examining committees liable to receiver for gross negligence in 
 management of bank's business; Elliott v. Farmers' Bank, 61 W. Va 654, 57 S. 
 E. 242, holding directors postponed until claims of other creditors are satisfied 
 where directors were grossly negligent and inattentive to business of bank; 
 State v. Quackenbush, 98 Minn. 524, 108 N. W. 953, holding banker presumed to 
 know whether bank solvent or insolvent. 
 
 Cited in notes (15 L.R.A. 306) on care required of bank directors; (38 Am. St. 
 Rep. 774) on care required of bankers acting as agents or bailees. 
 
 Disapproved in Sweet v. Montpelier Sav. Bank & T. Co. 69 Kan. 650, 77 Pac 
 538, holding officers of corporation not personally liable to persons dealing with 
 corporation for mere acts of negligence. 
 Bank directors as trustee* for depositors. 
 
 Cited in Foster v. Bank of Abingdon, 88 Fed. 607, holding directors of a bank 
 trustees for depositors; Hinkley v. Sac Oil & Pipe Line Co. 132 Iowa, 403, 119 
 Am. St. Rep. 564, 107 N. W. 629, holding directors trustees of stockholders and 
 buyers of stock are entitled to assume others buying pay same price as they. 
 
 2 L. R. A. 540, GREEN & B. RIVER NAV. CO. v. CHESAPEAKE, O. & S. 
 
 W. R. CO. 88 Ky. 1, 2 Inters. Com. Rep. 515, 10 S. W. 6. 
 Damages incidental to repair of bridge. 
 
 Cited in Rhea v. Newport News & M. Valley R. Co. 50 Fed. 23, holding rail- 
 road company, in legally rebuilding bridge for benefit of public, not liable for 
 obstructing navigation; East Montpelier v. Wheelock, 70 Vt. 398, 41 Atl. 43:>, 
 liokling municipality,, in making required repairs to bridge, not liable for neces- 
 sarily lowering ponded water. 
 
 Cited in notes (59 L. R. A. 39, 72) on right to obstruct or destroy rights of 
 navigation; (8 L. R. A. 787) on damn um alsque injuria. 
 
2 L.R.A. 540] L. R. A. CASES AS AUTHORITIES. 329 
 
 Navigable waters. 
 
 Cited in footnote to Olive v. State, 4 L. R. A. 33, which holds non-navigable 
 river not made public highway by statute declaring it to be sjch without provid- 
 ing for compensation to riparian owners. 
 
 Cited in notes (8 L. R. A. 92) on title to soil below ordinary high-water mark; 
 (5 L.R.A. 62) on riparian rights of owners bounding on navigable streams; (67 
 L.R.A. 835) on right to improve navigability of stream 
 
 2 L. R. A. 544, CHISM v. SCHIPPER, 51 X. J. L. 1, 14 Am. St. Rep. 668, 1$ 
 
 Atl. 316. 
 When approval necessary in tmilding; contract. 
 
 Cited in Curley v. Hudson County, 66 X. J. L. 408, 49 Atl. 471, holding claim 
 for work on building public road not allowable without engineer's approval ; Bernz 
 v. Marcus Sayre Co. 52 N. J. Eq. 282. 30 Atl. 21, holding architect's certificate or 
 its waiver necessary to recover on building contract; Welch v. Hubschmitt Bldg. & 
 Woodworking Co. 61 N. J. L. 64, 38 Atl. 824, holding certificate of architect not 
 final, except as to matters specified in contract; Crane Elevator Co. v. Clark, 26 
 C. C. A. 102, 53 U. S. App. 257, 80 Fed. 707, holding jury should decide whether 
 work had been accepted when architect expressed satisfaction with it; Bowe v. 
 United States, 42 Fed. 780, holding discretion of umpire as to whether workman- 
 ship and materials were satisfactory should be exercised reasonably; Bradner v. 
 Roffsell, 57 N. J. L. 416, 31 Atl. 387, Reversing 57 N. J. L. 33, 29 Atl. 317, holding 
 refusal of architect to give certificate not fraudulent where there was deviation 
 from contract; Atchison v. Rackliffe, 78 Kan. 330, 96 Pac. 477, holding wrongful 
 refusal to measure by engineer as per contract not to affect manner of payment; 
 Hebert v. Dewey, 191 Mass. 411, 77 X. E. 822, on recovery on contract without 
 certificate of engineer where wilfully and fraudulently withheld; Fairmont Plumb- 
 ing Co. v. Carr, 54 W. Va. 278, 46 S. E. 458, holding that reason for rejection of 
 work done cannot be ignored or questioned if in good faith, where rejector 
 has the absolute right to reject; Cope v. Beaumont, 104 C. C. A. 202. 181 Fed 
 758, holding that contractor can recover on proof of substantial performance 
 and fraudulent refusal of certificate by architect. 
 
 Cited in footnote to Arnold v. Bournique, 20 L. R. A. 493, which holds con- 
 tractor entitled to payment on delivery of architect's certificate handed back 
 without presentation to owner. 
 
 Cited in notes (17 L.R.A. 211) on contract, promise to give full satisfaction: 
 subject to judgment of promisee; (1 L.R.A. (N.S.) 1051) on effect of decision of 
 architect, engineer, or umpire in case of fraud or mistake. 
 Construction of contracts. 
 
 Cited in Schroeder v. Griggs, 80 Kan. 362, 102 Pac. 469. on viewing a contract 
 as a whole in construing it to reach the obvious intent of the parties. 
 Performance dependent on will of third person. 
 
 Cited in Wolff v. Meyer, 75 X. J L. 184, 66 Atl. 959. on liability for non- 
 performance of contracts impossible of performance because dependent on will 
 of another. 
 
 2 L. R. A. 549, CHICAGO MUT. LIFE INDEMNITY ASSO. v. HUNT, 127 111. 
 
 257, 20 X. E. 55. 
 Validity of statute empowering chancery to dissolve corporation. 
 
 Followed in Cullom v. Traders' Ins. Co. 89 C. C. A. 295, 163 Fed. 47. holding 
 Illinois statute providing for involuntary dissolution of insurance company o 
 petition of state auditor constitutional 
 
L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 549 
 
 Chancery i :i i i-c! i,-t h,n to vt ind up or dixaolve corporation. 
 
 Cited in Wheeler v. Pullman Iron & Steel Co. 143 111. 205, 17 L.R.A. 820, 
 32 X. E. 420, holding court of chancery without jurisdiction to dissolve cor' 
 poration for cause other than specified in statute; J. W Butler Paper Co. v. 
 Robbins, 151 111. 621, 38 X. E. 153, holding jurisdiction waived in suit brought 
 l>y creditor of corporation; Parmelee v. Price, 208 111. 558, 70 N. E. 725, hold- 
 ing chancellor may entertain suit and determine questions of fact without jury 
 in simple creditor's proceeding against stockholder for unpaid subscription; Chica- 
 go Steel Works v. Illinois Steel Co. 153 111. 17, 38 N. E. 1033, holding order ap- 
 pointing receiver of corporation not necessarily a dissolution of franchise; Bixler 
 v. Summerfield, 195 111. 152, G2 X. E. 849, holding allegation that a "finishing" 
 company used its funds to purchase real estate ultra vires, and praying for its 
 dissolution, states a cause of action for equity; Robinson v. Raulston, 33 111. App. 
 167, holding attaching stockholder not affected by bill to dissolve corporation and 
 appoint receiver; Hunt v Le Grand Roller Skating Rink Co. 143 111. 122, 32 N. E. 
 525, holding attorney general cannot file bill in equity to dissolve corporation 
 for acts subjecting it to forfeiture of charter; Cobe v. Guyer, 237 111. 521, 86 N. 
 E. 1071, on statutory power of courts of chancery to decree dissolution of cor- 
 poration by declaring a forfeiture of franchise; State ex rel. Donnell v. Foster, 
 225 Mo. 193, 125 S. W. 184, holding decree of dissolution of corporation not 
 authorized by statute and. hence void; Ashton v. Penfield, 233 Mo. 444, 135 S. 
 W. 938 (dissenting opinion), on jurisdiction of equity to dissolve corporation. 
 
 Cited in footnote to Republic L. Ins. Co. v. Swigert, 12 L. R. A. 328, which 
 holds corporation, in suit to wind it up, entitled to object to order directing 
 suits for unpaid stock subscriptions. 
 
 Cited in notes (8 L.R.A. 858) on dissolution of corporation; (68 Am. St. Rep. 
 871) on jurisdiction of equity to dissolve voluntary unincorporated associations 
 Character and validity of contract with benefit society. 
 
 Cited in Calkins v. Bump, 120 Mich. 343, 79 N. W. 491, holding endowment 
 insurance in excess of power of fraternal society; Lehman v. Clark, 174 111. 
 284, 43 L. R. A. 651, 51 N. E. 222, holding receiver of benefit society cannot re- 
 cover assessment made by him under order of court, for contract is unilateral; 
 LT'nion St. Jean Baptiste v. Ostiguy, 25 R. I. 481, 64 L. R. A. 159, 56 Atl. 681, 
 holding mutual benefit society cannot sue ex-member for dues, for nonpayment 
 of which he was expelled; McCartney v. Supreme Tent, K. M. 132 111. App. 20, 
 holding fraternal benefit society unable to agree to pay a member a specific sum 
 on his arrival at a specified age in the absence of granted authority or necessary 
 implication; National Protective Legion v. O'Brien, 102 Minn. 20, 112 N. W. 1050, 
 holding payment of "maturity dividends" to members not disabled, in excess of 
 power of fraternal society. 
 
 Cited in footnotes to Re Globe Mut. Ben. Asso. 17 L. R. A. 547, which holds 
 receiving infants as members of assessment insurance company unlawful; Shaw 
 v. Davis, 23 L. R. A. 294, which denies minority stockholder's right to enjoin 
 legal contract. 
 
 Cited in notes (9 L. R. A. 275) on restraining exercise of corporate franchise; 
 action by one in behalf of others; (46 L. R. A. 620) on charter restrictions on 
 eligibility to become a shareholder in a corporation; (57 L. R. A. 504) on in- 
 surance on the life of a minor; (23 L. R. A. 436) on liability of member of 
 benefit society to action for assessment; (7 L. R. A. 189) on mutual benefit 
 certificate; transfer of; (4 L. R. A. 382) on benefit association; enlarged 
 powers conferred by statute. 
 
 Distinguished in Re Globe Mut. Ben. Asso. 63 Hun, 264, 17 N. Y. Supp. 852, 
 holding co-operative insurance company cannot insure infants. 
 
2 L.R.A. 549] L. R. A. CASES AS AUTHORITIES. 330 
 
 Tontine fund. 
 
 Distinguished in Wheeler v. Mutual Reserve Fund Life Asso. 102 111. App. 57, 
 holding foreign corporation not required to conform to provisions of statute 
 relating to tontine accumulations. 
 Penalty for failure to pay dues. 
 
 Cited in Betts v. Connecticut Indemnity Asso. 71 Conn. 753, 44 Atl. 65, hold- 
 ing assets of benefit association in proceeding to dissolve would not include as- 
 sessments not already levied; Gray v. Daly. 40 App. Div. 42, 57 X. Y. Supp. 
 527, holding resigned member, not in arrears, not liable for assessment by re- 
 ceiver of dissolved accident association; Re Ontario Insurance Act, 31 Ont. Rep. 
 162, holding member of benevolent society not personal liable for dues in absence 
 of contract to that effect. 
 Nature of assessments. 
 
 Cited in L'Union St. Jean Baptiste v. Ostigny, 25 R. I. 481, 64 L.R.A. 158, 105- 
 Am St. Rep. 899, 56 Atl. 681, 1 A. & E. Ann. Cas. 401, holding assessments in a 
 beneficial association not debts recoverable by action, where payable in advance 
 with provision for expulsion for default. 
 Officer of in MI IKS I benefit society as trustee. 
 
 Cited in Williamson v. Warfield, P. H. Co. 136 111. App. 180, holding the man- 
 agers of a mutual benefit insurance company trustees of funds in their hands 
 for benefit of members. 
 Rights of infant on avoidance of contract. 
 
 Cited in Wuller v. Chuse Grocery Co. 241 111. 400, 28 L.R.A.(X.S.) 130, 132 Am. 
 St. Rep. 216, 89 N. E 796, 16 A. & E. Ann. Gas. 522, on recovery of money by 
 infant on rescission of contract. 
 
 2 L. R. A. 556, LEE v. STURGES, 46 Ohio St. 153, 19 N. E. 560. 
 What should be included in taxable list. 
 
 Cited in Christian Moerlein Brewing Co. v. Hagerty, 8 Ohio C. C. 335. holding 
 act valid providing that return by manufacturer for taxation shall be based 'on 
 average monthly value of material, determined on last day of month; Ohio Farm- 
 ers' Ins. Co. v. Hard, 8 Ohio N. P. 47, 10 Ohio S. & C. P. Dec. 491, holding that 
 tax returns of assets at sixty per cent, of their value are false; Scott's Sons- 
 v. Raine, 25 Ohio L. J. 158, 11 Ohio Dec. Reprint, 180, on construction of tax 
 laws. 
 Corporate stock or corporation's property. 
 
 Cited in Lander v. Burke, 65 Ohio St. 541, 63 N. E. 69, holding "capital stock" 
 includes personal property which corporation must return for taxation; Ratter- 
 man v. Ingalls, 23 Ohio L. J. 260, 10 Ohio Dec. Reprint, 750; Ratterman v. Phipps, 
 27 Ohio L. J. 120, 11 Ohio Dec. Reprint, 474, as deciding that stock in railroad 
 corporation is taxable; Scott v. Smith, 2 Ohio N. P. X. S. 623, 15 Ohio S & C. 
 P. Dec. 595, holding shares of stock taxable as separate from the capital of the 
 corporation; Schmuck v. Grume & S. Mfg. Co. 7 Ohio X. P. X. S. 29, 19 Ohio S. 
 & ( . P. Dec. 824, on shares of stock as property. 
 
 Cited in note (58 L.R.A. 579, 613) on taxation of capital stock of corporations 
 in the United States. 
 Foreign ownership. 
 
 Cited in Hubbard v. Brush, 61 Ohio St. 262, 55 X'. E. 829, holding foreign cor- 
 poration with business and property wholly in state must list capital stock for 
 taxation; Western U. Teleg. Co. v. Poe, 61 Fed. 455, holding that telegraph 
 plant in one state has added value for taxation because it is part of a large sys- 
 
331 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 556 
 
 tern; Western U. Teleg. Co. v. Poe, 61 Fed. 461, holding act providing that value 
 of shares of capital stock should be used in determining value of property of 
 corporation, invalid; Bacon v. State Tax Comrs. 126 Mich. 27, 60 L.R A. 333, 
 86 Am. St. Rep. 524, 85 X. W. 307, holding stock in foreign corporation, owned 
 by resident, subject to taxation; Lander v. Burke, 65 Ohio St. 542, 63 N. E. 69, 
 holding shares of resident stockholder in domestic corporation with property out 
 of state not exempt from taxation; Western Assur. Co. v. Halliday, 61 C. C. A. 
 275, 126 Fed. 261, holding municipal bonds, deposited as security by foreign insur- 
 ance company with superintendent of insurance, taxable by state; Judy v. Beck- 
 \vith, 137 Iowa, 30, 15 L.R.A.(X.S.) 147, 114 N. W. 565, 15 A. & E. Ann. Cas. 890, 
 holding shares in foreign corporation held in a state taxable therein as person- 
 alty: Scottish Union & Xat, Ins. Co. v. Bowland, 196 U. S. 627, 49 L. ed. 626, 
 25 Sup. Ct. Rep. 345, holding municipal bonds deposited in state by foreign cor- 
 poration as security to domestic policy holders, to be part of capital stock of 
 such corporation and taxable as personal property where deposited. 
 Property not returned or previously omitted. 
 
 Cited in Adams v. Kuykendall, 83 Miss. 595, 35 So. 830, holding back taxes 
 may be assessed upon property theretofore omitted from tax rolls; State Board 
 v. Holliday, 150 Ind. 250, 42 L.R.A. 838, 49 X. E. 14, holding prior omission no 
 excuse for further omission from list; Lee v. Dawson, 8 Ohio C C. 371, 4 Ohio 
 C. D. 442, holding appearance before auditor of owner's agent sufficient to au- 
 thorize additions to return; Gager v. Prout, 48 Ohio St. 107, 26 N. E. 1013, hold- 
 ing act providing for additions for false return was valid imposing no new bur- 
 dens; Patton v. Commercial Bank, 7 Ohio X. P. 407, 10 Ohio S. & C. P. Dec. 
 334, on liability for tax on all property every year whether listed for taxation or 
 not. 
 Shares of stock. 
 
 Cited in notes (58 L.R.A. 613) on practice and procedure of assessors in taxa- 
 tion of capital stock of corporations in United States; (58 L.R. A. 579) on taxa- 
 tion of capital stock of stockholders in foreign corporations. 
 Tax exemptions. 
 
 Cited in Watterson v. Halliday, 77 Ohio St. 169, 82 N. E. 962, 11 A. & E. Ann. 
 Cas. 1096, denying right of exemption on parish house used by priests. 
 
 Distinguished in Kenyon College v. Schnebly, 12 Ohio C. C. N. S. 4, 31 Ohio 
 C. C. 153, on construction of exemption from taxation in case of charitable or 
 educational institutions. 
 Equal protection and privileges. 
 
 Cited in Humphreys v. State, 70 Ohio St. 87, 70 X. E. 957, holding statute 
 subjecting legacies to foreign charitable institutions to inheritance tax, from 
 which domestic charities are exempt, constitutional. 
 Consolidation of railroads. 
 
 Cited in Ashley v. Ryan, 49 Ohio St. 529, 31 N. E. 721, holding act requir- 
 ing fee upon filing articles of agreement of consolidation of railway.-; not invalid 
 because consolidation included companies out of state; Robison v. Cleveland City 
 R. Co. 5 Ohio X. P. 301, holding consolidation of railway companies abolished 
 them in creation of new corporation. 
 
 Cited in note (89 Am. St. Rep. 650, 653) on effect of consolidation of railroad 
 corporations. 
 Effect of construction of tax laws ly officers. 
 
 Cited in Probasco v. Raine, 10 Ohio Dec Reprint, 414, holding that construction 
 placed upon tax laws by executive department of* the state is not controlling 
 upon court in construing sucli laws. 
 
2 L.R.A. 564] L. R. A. CASES AS AUTHORITIES. 332 
 
 2 L. R. A. 564, STATE ex rel. LEESE v. CHICAGO, B. & Q. R. CO. 25 Neb. 
 156, 41 N. VV. 125. 
 
 Followed without discussion in State ex rel. Leese v. Missouri P. R. Co. 25 
 Neb. 165, 41 N. W. 127; State ex rel. Leese v. Chicago, St. P. M. & 0. R. Co. 
 25 Neb. 166, 41 N. W. 128. 
 Eminent domain. 
 
 Cited in Trester v. Missouri P. R. Co. 33 Neb. 178, 49 N. YV. 1110, holding 
 new railway company by consolidation of companies organized in different 
 states, can acquire property by eminent domain; Koenig v. Chicago, B. & Q. R. 
 Co. 27 Neb. 704, 43 N. W. 423, holding foreign railway company cannot acquire 
 real estate until it becomes a domestic corporation ; Southern Illinois & M. 
 Bridge Co. v. Stone, 174 Mo. 32, 63 L. R. A. 311, 73 S. VV. 453, holding foreign 
 bridge corporation cannot exercise power of eminent domain without authority 
 from legislature. 
 
 Cited in footnote to Southern Illinois & M. Bridge Co. v. Stone, 63 L.R.A. 301, 
 which holds that foreign bridge company may condemn property necessary for 
 approaches and terminal facilities. 
 
 Cited in note (24 L. R. A. 328) on right of foreign corporations to own real 
 estate. 
 Consolidation of corporations. 
 
 Cited in Walters v. Chicago, B. & Q. R. Co. 104 Fed. 379, holding foreign 
 -corporation formed by consolidation of railways, and becoming a domestic cor- 
 poration, was determined as to citizenship by that of its constituents; Chevra 
 Bnai Israel v. Chevra Bikur Cholin, 24 Misc. 190, 52 N. Y. Supp. 712, holding 
 religious corporations cannot consolidate without legislative authority. 
 
 Cited in notes (3 L. R. A. 435, 436) on corporations; consolidation and its 
 effect; (8 L. R. A. 500) on consolidation of corporations creating a trust is 
 ultra vires; (15 L. R. A. 85) on consolidated interstate corporation as domestic 
 corporation of one of the states; (52 L. R. A. 391) on right of corporations to 
 consolidate; (52 L. R. A. 377) on interpretation, application, and construction 
 of statutes restrictive of the right of corporations to consolidate; (8 L. R. A. 
 239) on foreign corporations, law of comity; (89 Am. St. Rep. 651, 652) on 
 effect of consolidation of corporations. 
 
 ^ L. R. A. 568, HUSTON v. BYBEE, 17 Or. 140, 20 Pac. 51. 
 Prescription and adverse user. 
 
 Cited in Wimer v. Simmons, 27 Or. 19, 50 Am. St. Rep. 685, 39 Pac. 6, hold- 
 ing use of water under license or permission not prescription or adverse user; 
 Carson v. Hayes, 39 Or. 107, 65 Pac. 814, holding invasion of right of owner 
 of water necessary to create prescriptive right to use; Union Mill & Min. Co. 
 v. Dangberg, 81 Fed. 91, holding adverse use of water must be open, notorious, 
 peaceable, continuous, and under claim or color of right; Ann Arbor Fruit & 
 Vinegar Co. v. Ann Arbor R. Co. 136 Mich. 607, 66 L.R A. 435, 99 N. W. 869, 
 holding a user by necessity does not ripen into an adverse right by use after 
 termination of necessity until expiration of required period after notice of such 
 use has come to servient owners; Anderson v. Bassman, 140 Fed. 25, on adverse 
 uninterrupted use of stream for statutory period to acquire vested right; Morris 
 v. Bean, 146 Fed. 434, holding burden of proving prescriptive right not satisfied 
 .by claimant of the right where testimony does not show length of time of adverse 
 user nor where it started; Ispn v. Sturgill, 57 Or. 121, 109 Pac. 579, holding -that 
 use of water by adverse claimant, which may result in title, is not initiated until 
 it is infringement of use of owner of right. 
 
333 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 57 T 
 
 Cited in notes (11 Am. St. Rep. 342) on adverse possession; (93 Am. St. Rep. 
 730) on prescriptive title to water; (10 Eng. Rul. Cas. 225) on acquisition by ri- 
 parian owner of easement in artificial stream as against its originator. 
 Vested rights under parol license. 
 
 Cited in Ewing v. Rhea, 37 Or. 586, 52 L. R. A. 142, 82 Am. St. Rep. 783, 62 
 Pac. 790; La very v. Arnold, 36 Or. 86, 57 Pac. 906; Bowman v. Bowman, 35 
 Or. 281, 57 Pac. 546, holding parol license irrevocable after licensee has ex- 
 pended money or made valuable improvements on faith thereof. 
 
 Cited in note (49 L. R. A. 511) on revocability of license to maintain a bur- 
 den on land after the licensee has incurred expense in creating the burden. 
 
 2 L. R. A. 571, LOPEZ v. UNITED STATES, 24 Ct. Cl. 84; 
 Transfer of claims :iu:> i n-t United States. 
 
 Cited in Howes v. United States, 24 Ct. Cl. 182, 5 L. R. A. 67, holding trans- 
 fer of specific claim to receiver by decree of state court invalid. 
 Power of attorney to collect moneys dne front United States. 
 
 Cited in Hitchcock v. United States, 27 Ct. Cl. 204, holding power given to- 
 collect last instalment due contractor for erection of public buildings void. 
 
 2 L. R. A. 576, DONAHUE v. STATE, 112 N. Y. 142, 19 N. E. 419. 
 Presumption of grant. 
 
 Followed in Fulton Light, Heat & P. Co. v. New York, 200 N. Y. 422, 37 L.R.A. 
 (X.S.) 322, 94 N E. 199, holding that, as against state, no title to river can be 
 obtained through private use or occupancy, whether adverse or by permission, 
 however long continued, or by prescriptive right. 
 
 Cited in Deshong v. New York, 176 N. Y. 484, 68 N. E. 880, holding grant of 
 permanent right to construct sidewalk vault will not be presumed. 
 Owner's duty to mere licensee to prevent injury. 
 
 Cited in Cusick v. Adams, 115 N. Y. 59, 60, 61, 12 Am. St. Rep. 772, 21 N. E. 
 673, holding owner not liable to bare licensee for injury through mere defect 
 in premises; Wells v. Brooklyn Heights R. Co. 34 Misc. 46, 68 N. Y. Supp. 305, 
 holding owner liable for neglect to use reasonable vigilance to prevent killing 
 licensee; Carroll v. State, 73 Misc. 521, 133 N. Y. Supp. 274, holding state liable 
 for injury to occupant of adjoining premises from falling into uncovered waste 
 weir on state land. 
 
 Cited in notes (42 L.R.A. 69) on claims constituting valid demands against 
 a state; (36 L.R.A.(N.S.) 499) on liability to trespasser or bare licensee from. 
 active negligence. 
 
 2 L. R. A. 577, AYARS'S APPEAL, 122 Pa. 266, 16 Atl. 356. 
 Title to act. 
 
 Cited in note (8 L.R.A. 858) on title to statute. 
 Special legislation. 
 
 Cited in Larimer & L. Street R. Co. v. Larimer Street R. Co. 137 Pa. 546; 
 20 Atl. 570, holding corporation without right to occupy street cannot ques- 
 tion validity of street franchise of rival; Clark's Estate, 195 Pa. 525, 48 L. R. 
 A. 594, 46 Atl. 127, Reversing 10 Pa. Super. Ct. 436, holding act authorizing- 
 trustees to include cost of bond in expenses of administration of trust valid; 
 Com. ex rel. Darte v. Reichard, 5 Kulp, 542, 8 Pa. Co. Ct. 563, holding section 
 of act constituting each city of the third class a single school district unconsti- 
 tutional; Fraim v. Lancaster County, 11 Lane. L. Rev. 158, holding act con- 
 cerning constable's fees, excluding certain counties, local; Com. v. Lacka wanna* 
 
2 L.RA. 577] L. R. A. CASES AS AUTHORITIES. 334 
 
 County, 7 Pa. Co. Ct. 174, holding act providing for non-uniform method of col- 
 lecting taxes unconstitutional ; Miller v. Cunningham, 7 Pa. Co. Ct. 502, hold- 
 in act making taxes liens on real estate, except in cities of the first, second, 
 and fourth classes, unconstitutional; Re Reading's Constables, 8 Pa. Co. Ct. 
 102, holding act providing for election of constables in cities of second and 
 third classes constitutional; School District v. School District, 22 Pa. Co. Ct. 
 236, holding act relating to education of nonresident soldiers' children only, 
 unconstitutional; Com. v. Clark, 14 Pa. Super. Ct. 440, holding act prohibiting 
 corporations from discharging employees because of membership in lawful or- 
 ganizations unconstitutional; Baker v. McKee, 6 Pa. Dist. 600, 20 Pa. Co. Ct. 
 11, holding sections of act requiring voucher for school district of city to be 
 countersigned by comptroller unconstitutional; Com. v. Casey, 231 Pa. 179, 34 
 L.R.A. (N.S.) 770, 80 Atl. 78, holding void, act limiting hours of labor on munici- 
 pal improvement contracts; Com. v. Plymouth Coal Co. 232 Pa. 147, 81 Atl. 148, 
 15 Luzerne Leg. Rep. 95, holding valid, anthracite mining act requiring adjoining 
 coal owners to leave pillar of coal along division line ; Nowak v. Filerty, 12 
 Northamp. Co. Rep. 364, 20 Pa. Dist. R. 329; Meilniczek v. Nesuruk, 19 Pa. Dist. 
 R. 742, holding valid, act for attachment of wages for boarding or lodging; 
 Larimer v. L. Street R. Co. 21 Pittsb. L. J. N. S. 96, on validity of ordinance 
 granting franchise to street railway; Engel's Appeal, 21 Pittsb. L. J. N. S. 219, 
 holding void, act for improvement of streets in second class cities; Reading v. 
 Miller, 37 Pa. Co. Ct. 620, 45 Super. Ct. 32, holding valid, milk inspection ordi- 
 nance of city of third class. 
 
 Cited in footnotes to Stockton v. Powell, 15 L. R. A. 42, which holds courts 
 without power to inquire as to notice of application to legislature for local 
 legislation; Milwaukee County v. Isenring, 53 L. R. A. 635, which holds act 
 regulating sheriff's fees for particular county local. 
 Object ami scope of classification. 
 
 Referred to Scranton City v. Ansley, 34 Pa. Super. Ct. 136, as containing a 
 clear warning from the Supreme Court that classification of cities otherwise 
 than according to provisions of the act of 1874 would not be sustained. 
 
 Cited in Re Wyoming Street, 137 Pa. 503, 21 Atl. 74; Safe Deposit & T. Co. 
 v. Fricke, 152 Pa. 240, 25 Atl. 530; Philadelphia v. Westminster Cemetery Co. 
 162 Pa. 108. 29 Atl. 349; Van Loon v. Engle, 171 Pa. 165, 33 Atl. 77; Re Ruan 
 Street, 132 Pa. 275, 7 L. R. A. 196, 19 Atl. 219, holding classification should be 
 for municipal purposes only; Com. v. Gilligan, 195 Pa. 510. 46 Atl. 124, Re- 
 versing 8 Kulp, 568, holding public convenience proper reason for classifica- 
 tion, in upholding act classifying school districts; Com. v. Moir, 199 Pa. 561, 
 53 L. R. A. 848, 85 Am. St. Rep. 801, 49 Atl. 351 (dissenting opinion), ma- 
 jority holding steady tendency of court has been to broaden applicability of 
 earlier rules of classification; Darcy v. San Jose", 104 Cal. 646, 38 Pac. 500, 
 and Edmonds v. Herbrandson, 2 N. D. 273, 274, 14 L. R. A. 727, 50 N. W. 970, 
 holding classification must not be arbitrary; Allentown v. Gross, 132 Pa. 323, 
 19 Atl. 269, holding rule as to classification inapplicable to question as to right 
 to license under constitutional act; Beltz v. Pittsburg, 26 Pa. Super. Ct. 68, 
 on right of legislature to classify cities based on imperative necessity and local 
 peculiarity and also citing annotation on that point; Pittsburg's Petition, 32 Pa. 
 Super. Ct. 221, holding legislative classification not to be local or special legisla- 
 tion where it applies to all subjects similarly situated, imperatively demanding 
 legislation, springing from manifest peculiarities; Com. ex rel. Lynch v. County 
 Comrs. 14 Pa. Dist. R. 685, on a review of authorities in classification of cities; 
 Ashworth v. Pittsburg R. Co. 231 Pa. 542, 80 Atl. 981, holding void, street rail- 
 way rate law for second class cities; State ex rel. Board of Education v. Brown, 
 
335 L- R. A. CASES AS AUTHORITIES. [2 L.R.A. 577 
 
 97 Minn. 406, 5 L.R.A.(X.S.) 333, 106 N. W. 477, on the purpose of constitutional 
 prohibition of special legislation as throwing light on the construction to be 
 given to such prohibitory amendments. 
 
 Cited in footnote to Longview v. Crawfordsville, 68 L.R A. 622, which holds void 
 classification of cities for purpose of legislation so as to make particular law 
 conferring power to annex territory applicable to those having population be- 
 tween six and seven thousand. 
 
 Cited in nofcs (7 L. R. A. 193, 195) on constitutional statutory classifica- 
 tion of cities. 
 
 Acts declared constitutional. 
 
 Cited in State ex rel. Atty. Gen. v. Miller, 100 Mo. 449, 13 S. W. 677, up- 
 holding act fixing number, and prescribing qualifications and manner of elec- 
 tion, of school directors in cities of over 300,000 inhabitants; Philadelphia & 
 R. Coal & I. Co.'s Petition, 200 Pa. 356, 49 Atl. 797, upholding classification of 
 townships into two classes according to population; Com. ex rel. Jones v. Black- 
 ley, 198 Pa. 374, 52 L. R. A. 368, 47 Atl. 1104, Affirming 30 Pittsb. L. J. N. S. 
 376, upholding act classifying townships according to density of population; 
 Com. use of Titusville v. Clark, 195 Pa. 639, 57 L. R. A. 350, 86 Am. St. Rep. 
 694, 46 Atl. 286, Affirming 21 Pa. Co. Ct. 500, 10 Pa. Super. Ct. 512, upholding 
 ordinance of city of third class classifying wholesale and retail merchants for 
 license tax; Bennett v. Norton, 171 Pa. 238, 32 Atl. 1112, Affirming 7 Kulp, 
 460, holding for some purposes law for coextensive county and city, and a dif- 
 ferent law for other counties, constitutional ; Com. v. Winkelman, 12 Pa. Super. 
 Ct. 517, holding act making dying declarations competent in prosecutions for 
 abortion constitutional. Com. v. Hanley, 15 Pa. Super. Ct. 280, holding un- 
 dertakers' license act applicable to cities of first, second, and third classes con- 
 stitutional; Shenk v. MeKennan, 11 Pa. Super. Ct. 88, Affirming 28 Pittsb. L. 
 J. N. S. 464, 11 Pa. Super. Ct. 86, holding building act relating to cities of 
 the second class constitutional; Richardson v. Mehler, 111 Ky. 426, 63 S. W. 
 957, holding statute providing what shall be prima facie evidence in actions 
 by cities of first class to enforce liens for cost of street improvements valid ; Com. 
 v. Middleton, 210 Pa. 588, 60 Atl. 297, holding an act providing that cities of 
 third class each constitute a school district and otherwise regulating school mat- 
 ters to be accepted by each district to be binding thereon is constitutional; Cen- 
 tral Dist. Printing & Teleg. Co. v. Freedom, 20 Pa. Dist. R. 247, 58 Pittsb. L. J. 
 310, holding telegraph and telephone act valid. 
 
 Cited in footnote to Com. ex rel. Jones v. Blackley, 52 L. R. A. 367, which 
 sustains classification of townships by density of population. 
 
 Acts declared unconstitutional. 
 
 Referred to in Howell v. Morrisville, 212 Pa. 353, 61 Atl 932, as having declared 
 unconstitutionality of an act dividing cities into classes, because of which other 
 statutes were later enacted. 
 
 Cited in Meadville v. Dickson, 129 Pa. 7, 8, 18 Atl. 513, holding no part of 
 specified acts sustainable, because interwoven with unnecessary and excessive 
 classification; Pittsburgh's Petition, 138 Pa. 435, 27 W. N. C. 468, 21 Atl. 761, 
 holding classification of cities with reference to collections of municipal liens 
 unconstitutional; Perkins v. Philadelphia, 156 Pa. 564, 27 Atl. 356, holding 
 classification intended to support legislation that could only apply to one city 
 unconstitutional; Costello v. Wyoming, 49 Ohio St. 209, 30 N. E. 613, holding 
 act authorizing villages in any county containing city of first grade to construct 
 sidewalks unconstitutional; Wilkes-Barre v. Ricketts, 5 Kulp, 430, and Wilkes- 
 Barre v. Felts, 134 Pa. 531, 19 Atl. 676. holding classification act of May 24, 
 
2 L.R.A. 577] L. R. A. CASES AS AUTHORITIES. 33$ 
 
 1887, wholly unconstitutional; Bradford City v. Pennsylvania & N. Y. Teleg. & 
 Teleph. Co. 26 Pa. Co. Ct. 335, holding act relating to telegraph wires, exempting 
 cities of the first class, unconstitutional; Com. ex rel. United Presby. Women's 
 Asso. v. Heckert, 28 Pittsb. L. J. N. S. 297, 7 Pa. Dist. R. 187, holding act 
 regulating cemeteries and hospitals in cities of second class unconstitutional ; 
 Re Coal Twp. 23 Pa. Co. Ct. 591, declaring act classifying townships of county 
 into two classes, for purposes of government, unconstitutional; Groves v. 
 County Court, 42 W. Va. 594, 595, 26 S. E. 460, declaring unconstitutional, act 
 general in terms, but which could never apply except to a single place; Vulcanite 
 Portland Cement Co. v. John W. Allison Co. 220 Pa. 387, 69 Atl. 855, holding 
 an act preferring a class of creditors,, in the absence of imperative necessity, to- 
 be special legislation and prohibited; Wood v. Philadelphia, 46 Pa. Super. Ct. 579, 
 affirming 17 Pa. Dist. R. 1026, holding an act exempting veterans and their 
 families from complying with rules of qualification for municipal employment in 
 cities of first class, special legislation in violation of constitution; Davis v. Beers, 
 12 Pa. Dist. R 437, holding an act enabling sales by counties of lands purchased 
 at tax sales was unconstitutional in that by its terms it excluded cities of the 
 first class from its operation; York Hospital & Dispensary Asso. v. York Count v, 
 12 Pa. Dist. R. 540, holding an act providing that hospital in cities of not less^ 
 than twenty thousand inhabitants shall receive from the county a designated 
 amount in support of poor patients was void as a local act in violation of con- 
 stitution. 
 
 Cited in footnotes to Hamilton County v. Rasche Bros. 19 L. R. A. 584, which 
 holds statute as to taxes, not applying to all parts of state, unconstitutional; 
 State v. Elizabeth, 23 L. R. A. 525, which holds invalid, special statute dis- 
 criminating between municipalities already having, and those not having, race- 
 course; Sutton v. State 33 L. R. A. 589, which holds classification of coun- 
 ties according to previous census, without respect to actual population, void. 
 Enrolled bills. 
 
 Cited in note (40 L.R.A. (N.S.) 37) on conclusiveness of enrolled bill. 
 Consequences of unconstitutional acts and remedial legislation. 
 
 Cited in Berghaus v. Harrisburg, 122 Pa. 291, 16 Atl. 365, and Shoemaker v. 
 Harrisburg, 122 Pa. 288, 16 Atl. 366, holding municipal lien depending solely 
 on unconstitutional classification act invalid; Chester v. Cunliffe, 7 Del. Co.. 
 Rep. 98; Chester v. Bullock, 187 Pa. 551, 41 Atl. 452; Chester v. Black 132 
 Pa. 570, 6 L. R. A. 804, 19 Atl. 276; Chester v. Pennell, 169 Pa. 303, 32 Atl. 
 408, upholding assessment under unconstitutional act cured by subsequent leg- 
 islation; Com. v. Smoulter, 126 Pa. 138, 17 Atl. 532, holding Wilkes-Barre city 
 of third class because of unconstitutionality of classifications of 1876 and 1877 ; 
 Barber Asphalt Paving Co. v. Harrisburg, 29 L. R. A. 402, 12 C. C. A. 101,. 
 28 U. S. App. 108, 64 Fed. 284, holding city liable for street paving, although 
 contractor agreed to accept payment in property assessments only, afterwards 
 declared invalid; Gable v. Altoona, 200 Pa. 20, 49 Atl. 367, holding city liable 
 on bonds payable out of property assessments afterwards declared illegal; Com. 
 v. La Bar, 5 Lack. Legal News, 230, 7 Northampton Co. Rep. 86; Dunbar v. 
 Williamsport, 9 Pa. Co. Ct. 451; Melick v. Williamsport, 35 W. N. C. 39, 
 holding acts of council under unconstitutional act of May 24, 1887, validated 
 by acts of May 13 and 23, 1889; Devers v. York City, 150 Pa. 211, 24 Atl. 668, 
 holding city assessor under unconstitutional act of May 24, 1887, entitled to 
 salary under curative statute of May 13, 1889; Lancaster County v. Stormfeltz, 
 8 Lane. L. Rev. 195, holding tax lien under act not applicable to whole state 
 invalid; Easton v. Drake, 9 Kulp, 324, 6 Northampton Co. Rep. 122, holding: 
 
337 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 586 
 
 provisions in act as to registration of tax lien merely directory; Trach v. Mc- 
 Cauley, 6 Northampton Co. Rep. 195, holding unconstitutional ity of act of 1876 
 not alfecting rights of holder of bond issued in 1886; Ellis v. Kies, 1 Dauphin 
 Co. Rep. 202, holding lien act applicable to cities of fourth class nullity, there 
 never having been cities of fourth class; Melan v. McXulty, 6 Kulp, 524, hold- 
 ing acts of May 17, 1887, and May 24, 1887, relating to tax liens, inapplicable 
 to case because declared unconstitutional. 
 Act partly good and. partly bad. 
 
 Cited in Re Morrellville, 7 Pa. Super. Ct. 543, as to validity of part of stat- 
 ute though other part void. 
 Acts passed prior to constitutional prohibition. 
 
 Cited in Hulsizer v. Northampton County, 6 Northampton Co. Rep. 136, hold- 
 ing act passed before constitutional prohibition protected from its operation. 
 School districts as independent of city government*. 
 
 Cited in First School Dist. Bd. of Pub. Edu. v. Ramsley, 209 Pa. 54, 58 Atl. 
 122, holding an act providing a department to purchase all supplies used in 
 conducting business of the city not to affect the power of school boards to pur- 
 chase school supplies, where schools have no necessary connection with municipal 
 legislation; Com. ex rel. Halferty v. Schmitz, 18 Pa. Dist. R 834, 39 Pittsb. L. J. 
 N. S. 33 ; Rosenblit v. Philadelphia. 28 Pa. Super. Ct. 593, on school districts of 
 the public school system as not having any connection with municipal government 
 or control. 
 Effect on officers of reorganization of city. 
 
 Cited in Menefee v. Taubman, 159 Mo. App. 323, 140 S. W. 604, holding that 
 on reorganization of city under new law. officers of old corporation hold their 
 offices until officers of succeeding corporation are elected and qualified. 
 
 2 L. R. A. 586, INSURANCE CO. OF N. A. v. FIDELITY TITLE & T. CO. 123 
 
 Pa. 523, 10 Am. St. Rep. 546, 16 Atl. 791. 
 
 Effect of discharge of person liable for loss on insured's right of action 
 against insurer. 
 
 Cited in note (29 L.R.A (N.S.) 699, 701) on effect of discharge of person pri- 
 marily liable for loss, or of contractual .provision giving him benefit of insur- 
 ance, upon insured's right of action against insurer. 
 Right of subrogation. 
 
 Cited in Haslage v. Rieger, 37 Pittsb. L. J. N. S. 146, holding life tenant, pay- 
 ing mortgage by himself and remainderman to secure loan to latter, entitled to 
 subrogation and assignment of mortgage. 
 
 Cited in note (12 Am. St. Rep. 506) on right of subrogation. 
 Of insurer to rights of insured. 
 
 Cited in Fidelity Title & T. Co. v. People's Natural Gas Co. 150 Pa. 14, 24 
 Atl. 339, holding that insurer may recover loss from one whose negligence 
 caused fire, notwithstanding release by insured of all claims except against 
 insurers: Packliam v. German F. Ins. Co. 91 Md. 526, 50 L. R. A. 831, 80 Am. 
 St. Rep. 461, 46 Atl. 1066, holding that destruction of remedy of subrogation 
 against wrongdoer by insured relieves insurer; Stoughton v. Manufacturers' 
 Natural Gas Co. 165 Pa. 433, 35 W. N. C. 521, 30 Atl. 1001, holding that ver- 
 dict against one causing loss presumptively represents entire loss, and insurer 
 entitled under statute to entire amount of insurance paid; Phenix Ins. Co. v. 
 Pennsylvania R. Co. 134 Ind. 218, 20 L. R. A. 410, 33 N. E. 970, holding insurer 
 subrogated to rights of owner against one causing loss, to extent of loss paid; 
 Packham v. German F. Ins. Co. 91 Md. 528, 50 L. R. A. 832, 80 Am. St. R T . 
 L.R.A. Au. Vol. I. 22. 
 
2 L.R.A. 586] L. R. A. CASES AS AUTHORITIES. 338 
 
 461, 46 Atl. 1066, holding surety cannot demand subrogation before discharg- 
 ing liability. 
 
 Cited in note (44 Am. St. Rep. 737) on subrogation of insurer. 
 
 Distinguished in Sims v. Mutual F. Ins. Co. 101 Wis. 592, 77 N. W. 908, 
 holding release to one causing fire, of all claims arising from loss, releases in- 
 surance company; Haldeman v. Dublin Mut. Ins. & Protective Co. 32 Pa. Co. Ct. 
 26, 16 Pa. Dist. R. 62, holding release of wrongdoer causing fire, loss covered by 
 insurance, by assured defeats right of insurance company to subrogation, express 
 stipulation for subrogation notwithstanding. 
 Payment of debt as prerequisite. 
 
 Cited in notes (99 Am. St. Rep. 482) on payment of debt as prerequisite of 
 right of subrogation; (2 L.R.A.(N.S.) 264) on obligation as equivalent of payment, 
 for purpose of subrogation. 
 
 2 L. R. A. 587, STATE USE OF JANNEY v. HOUSEKEEPER, 70 Md. 162, 14 
 
 Am. St. Rep. 340, 16 Atl. 382. 
 Negligence ; physicians and surgeons. 
 
 Cited in Pettigrew v. Lewis, 46 Kan. 82, 83, 26 Pac. 458, holding plaintiff 
 must affirmatively prove lack of care or skill; Miller v. Leib, 109 Md. 426, 72 
 Atl. 466, on the degree of care due from physicians and surgeons, to patients; 
 Champion v. Kieth, 17 Okla. 208, 87 Pac 845, holding physician not to be liable 
 for unsuccessful termination of treatment where reasonable degree of care and 
 skill are used; Giberson v. Kinard, 25 Lane. L. Rev. 381; Wohlert v. Seibert, 23 
 Pa. Super. Ct. 218, holding physician bound to exercise such skill as is ordinarily 
 possessed and used by physician in his locality taking into consideration the 
 advanced state of the profession at the time; Sweeney v. Erving. 35 App. D. C. 61, 
 L.R.A. (N.S.) , holding same rule applicable to X-ray operator. 
 
 Cited in note (93 Am St. Rep. 665, 669) on liability of physicians and sur- 
 geons for negligence and malpractice. 
 Presumptions and burden of proof. 
 
 Cited in Sheldon v. Wright, 80 Vt. 318, 67 Atl. 807, on legal presumption 
 against negligence in malpractice cases and affirmative proof by assenting party. 
 
 Cited in notes (11 L. R. A. 701) on physician's liability for negligent treat- 
 ment and want of skill; (37 L. R. A. 832) on degree of care and skill required 
 from physician or surgeon. 
 Consent to operation. 
 
 Cited in Pratt v. Davis, 118 111. App. 167, holding consent of husband not nec- 
 essary where wife in sound mind consents to operation. 
 
 Cited in note (1 L.R.A.(N.S.) 441) on liability for performing surgical operation 
 without consent. 
 
 2 L. R. A. 589, HARMON v. LEHMAN, 85 Ala. 379, 5 So. 197. 
 I -iir> : loans by commission merchants. 
 
 Cited in Patillo v. Allen-West Commission Co. 47 C. C. A. 644, 108 Fed. 730, 
 holding whether contract to pay constructive commissions in default of cotton 
 delivered, besides interest on loan, is usurious, question for jury; Blackburn 
 v. Hayes, 59 Ark. 369, 27 S. W. 240, holding constructive commissions on cot- 
 ton not delivered, besides interest on loan, not usurious device, but liquidated 
 damages; Gage v. J. F. Smyth Mercantile Co. 87 C. C A. 377, 160 Fed. 430, 
 holding usury to be question for jury where interest is paid on borrowed money 
 and in addition thereto constructive commissions are charged the borrower by 
 lender supposedly for sale of goods purchased with the money; Dorden v. Schuess- 
 
330 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 590 
 
 ler, 154 Ala. 376, 382, 45 So. 130, defining usury under statute as the taking 
 of more for the use of money than the law allows. 
 Stipulation for payment of attorneys' fee* on foreclosure. 
 
 Cited in Lehman v. Comer, 89 Ala. 583, 8 So. 241, holding stipulation to pay 
 attorneys' fees and other expenses in collecting sums secured by mortgage ex- 
 tends to fees on foreclosure; Ginn v. New England Mortg. Secur. Co. 92 Ala 
 138, 8 So. 388, holding stipulation for payment of attorneys' fees on foreclosure 
 does not render mortgage usurious; Boyd v. Jones, 96 Ala. 309, 38 Am. St. Rep. 
 100, 11 So. 405, holding stipulation for payment of attorneys' fees and reasonable 
 storage not illegal. 
 
 2 L. R. A. 594, BOTTS v. SIMPSONVILLE & B. C. TURNP. CO. 88 Ky. 54, 
 
 10 S. W. 134. 
 Consolidation of corporations. 
 
 Cited in Cherva Bnai Israel v. Chevra Bikur Cholim, 24 Misc. 190, 52 X. Y. 
 Supp. 712, holding corporations cannot consolidate without legislative authority; 
 Spencer v. Seaboard Air Line R. Co. 137 X. C. 120, 1 L.R.A.(X.S.) 620, 49 S. E. 
 96, on rights of stockholder dissenting from consolidation and duties of con- 
 solidating company to such stockholder. 
 
 Cited in notes (8 L. R. A. 500) on consolidation of corporations, creating 
 trust; (52 L. R. A. 391) on right of corporations to consolidate; (52 L. R. A. 
 381) on necessity of stockholder's consent to corporate consolidation; (52 L. R. 
 A. 388) on rights and remedies of stockholders upon unauthorized consolidation; 
 (3 L.R.A. 437) on rights, duties, and obligations of consolidated corporations; 
 {1 L.R.A.(X.S-) 608) on condemnation of shares of minority stockholders; 
 (89 Am. St Rep. 621) on effect of consolidation of corporations. 
 Right of stockholder to enjoin illegal act of directors. 
 
 Cited in Forrester v. Boston & M. Consol. Copper & S. Min. Co. 21 Mont. 549, 
 55 Pac. 229, holding minority stockholders may enjoin illegal act without proof 
 of exhaustion of remedies within corporation. 
 
 2 L. R. A. 596, HARTMAN v. YOUNG, 17 Or. 150, 11 Am. St. Rep. 787, 20 
 
 Pac. 17. 
 Election contest not retriable on appeal. 
 
 Cited in Breding v. Williams, 33 Or. 393, 54 Pac. 206, and Hughes v. Hoi- 
 man, 23 Or. 483, 32 Pac. 298, holding election contests tried by court without 
 jury not equity cases retriable on appeal. 
 -Contested election; ballots as evidence. 
 
 Cited in Dent v. Taylor County, 45 W. Va. 758, 32 S. E. 250, holding ballots 
 Tiighest evidence of result when identity as cast established; Fenton v. Scott, 
 17 Or. 190, 11 Am. St. Rep. 801, 20 Pac. 96, holding genuineness of ballots 
 sought to be recounted question of fact for trial court; Davenport v. Olerich, 
 104 Iowa. 196, 73 X. W. 603, holding ballots must be shown safely kept by proper 
 custodian before allowed in evidence against official return; Farrell v. Larsen, 
 26 Utah, 291, 73 Pac. 227, holding ballots in unsealed packages, kept in place 
 to which unauthorized persons had access, inadmissible; Pusch v. Brady, 5 Ariz. 
 403, 53 Pac. 176, holding oral evidence inadmissible in election contest before court 
 to show that ballots marked "rejected" are same as those voted on election the 
 marked ballots not being those voted; Chatham v. Mansfield, 1 Cal. App. 306, 82 
 Pac. 343. holding ballots received by county clerk in envelopes broken open, then 
 placed in vault accessible to public, not admissible as evidence in election contest; 
 
2 L.R.A. 596] L. R. A. CASES AS AUTHORITIES. 340 
 
 Edwards v. Logan, 114 Ky. 322, 70 S. W. 852, on the weight of exposed ballots 
 as evidence in an election contest before a court. 
 
 Cited in notes (30 L.R.A. (N.S.) G04) on scope and effect of election law pro- 
 visions for preserving ballots; (19 Am. St. Rep. 567) on evidence to show for 
 whom ballot was cast. 
 Burden of proof. 
 
 Cited in Fenton v Scott, 17 Or. 191, 11 Am. St. Rep. 801, 20 Pac. 96, holding 
 burden of proof on one seeking to overthrow oilicial count, to show ballots genu- 
 ine. 
 
 2 L. R. A. 601, WESTERN U. TELEG. CO. v. MUNFORD, 87 Tenn. 190, 10 Am. 
 
 St. Rep. 630, 10 S. W. 318. 
 Common carrier; connecting: lines. 
 
 Cited in Western J. Teleg. Co. v. Stratemeier, 6 Ind. App. 128, 32 N. E. 871, 
 and Bird v. Southern R. Co. 99 Tenn. 722, 63 Am. St. Rep. 856, 42 S. W. 45 l r 
 holding initial carrier may limit liability to own line; Post v. Southern -R. Co. 
 103 Tenn. 206, 55 L. R. A. 487, 52 S. W. 301, holding carrier, not shipper, has 
 right to designate route of through shipments at special rates: Nashville, C. & St. 
 L. R. Co. v. Stone, 112 Tenn. 357, 105 Am. St. Rep. 955, 79 S. W. 1031, holding 
 initial carrier may limit its liability to its own line. 
 Duty to deliver telegrams. 
 
 Cited in footnote to Western U. Teleg. Co. v. Adams, 6 L. R. A. 844, which. 
 holds ignorance of relations between parties to message does not excuse neglect 
 in delivering. 
 
 Cited in notes (15 L.R.A. 130) on duty of telegraph company to find person 
 addressed; (14 Am. St. Rep. 564) on rights, duties, and liabilities of telegraph 
 companies. 
 Damag-es for failure to deliver telegram. 
 
 Cited in note (10 Am. St. Rep. 779) on limitation of damages in action against 
 telegraph company to natural and proximate result of failure to deliver message.. 
 
 2 L. R. A. 603, O'HARA v. STATE, 112 N. Y. 146, 8 Am. St. Rep. 726, 19 N. E._ 
 
 659. 
 Claims against state. 
 
 Cited in People v. Corner, 59 Hun, 302, 12 N. Y. Supp. 936, holding in- 
 action by state, defendant not entitled to set up counterclaim, since state can 
 be prosecuted only by its consent; American Bank Note Co. v. State, 64 App. Div. 
 227, 71 N. Y. Supp. 1049, holding act conferring jurisdiction upon court of 
 claims to audit claim virtually ratifies unauthorized contract; Quayle v. State, 
 192 N. Y. 51, 84 N. E. 583, on recognition by state of claims against it as a basis 
 of action; Flower v. State, 65 Misc. 148, 121 N. Y. Supp. 96, holding court of 
 claims without jurisdiction to hear claim for taxes paid under an unconstitutional 
 law; People ex rel. Swift v. Luce, 204 N. Y. 485, 97 N E. 850, on claims against 
 state not enforceable until recognized by legislature. 
 
 Cited in notes ( 42 L. R. A. 38 ) on what claims, arising on contracts, con- 
 stitute valid demands against state; (42 L. R. A. 56, 57) on validity of claims 
 against state on contracts on public buildings and improvements. 
 As affected by statnte of limitations. 
 
 Cited in Parmenter v. State, 135 N. Y. 163, 31 N. E. 1035, holding claim 
 against state not barred by lapse of time during which no tribunal existed in 
 which it could be prosecuted; Cayuga County v. State, 153 N. Y. 292, 47 N. E. - 
 
341 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 600 
 
 288, raising, without deciding, question whether doctrine that statute of limi- 
 tations runs against claim from date of ratification by legislature, is applicable. 
 
 Cited in notes (42 L.R.A. 40) on validity of claims against state affected by 
 statute of limitations; (16 Eng. Rul. Cas. 297) on effect of running of statute of 
 limitations. 
 Constitutional prohibition of allowance of claims by legislature. 
 
 Cited in Cayuga County v. State, 153 N. Y. 291, 47 N. E. 288, holding act giv- 
 ing authority to board of claims to hear and adjust claim not allowance thereof 
 "by legislature; Wheeler v. State, 97 App. Div. 280, 90 X. Y. Supp. 18, holding an 
 act constitutional conferring jurisdiction on court of claims to hear claim of pur- 
 chaser of land from state and make an award though there was no warranty of 
 title by state; Lehigh Valley R. Co. v Canal Board, 204 N. Y. 475, 97 X. E. 
 D64, holding valid, assumption by state of expense of rebuilding railroad bridges 
 over streams canalized for barge canal. 
 
 Distinguished in Roberts v. State, 30 App. Div. Ill, 51 N. Y. Supp. 691, 
 holding legislature cannot authorize allowance of claim for wrongful imprison- 
 ment, thereby invalidating unreversed conviction; Re Greene, 166 N. Y. 494, 60 
 N. E. 183, Affirming 55 App. Div. 481, 67 N. Y. Supp. 291, holding act virtually 
 reversing judgment on merits, granting new trial, and authorizing tax levy, 
 unconstitutional. 
 Extent of exemption. 
 
 Cited in Coxe v. State, 144 N. Y. 410, 39 N. E. 400, holding exemption of 
 existing claims from constitutional prohibition against allowing barred claims 
 cannot apply to subsequent claim. 
 Legislative ratification of an unauthorized act. 
 
 Cited in Leavenworth v. Leavenworth City & Ft. L. Water Co. 69 Kan. 93, 76 
 Pac. 451, on power of legislature to authorize any act performed for benefit of 
 state to which it had original authority to legislate and provide for; Kirby v. 
 New York, 68 Misc. 635, 325 N. Y. Supp. 742, holding employment of special 
 counsel by attorney-general ratified by appropriation of money to pay him; Car- 
 roll v. New York, 68 Misc. 43, 124 N. Y. Supp. 888, holding that legislature by 
 subsequently appropriating money for expenses of attorney-general ratifies em- 
 ployment of stenographer continuing duties after employer's term. 
 
 2 L. R. A. 606 PROTESTANT EPISCOPAL CHURCH v. ANAMOSA, 76 Iowa, 
 
 538, 41 N. W. 313. 
 Exercise of municipal power to change street grade. 
 
 Cited in McManu* v. Hornaday, 99 Iowa, 511, 68 N. W. 812, holding power 
 conferred on city to change street grade must be exercised in manner pre- 
 scribed; Richardson v. Webster City, 111 Iowa, 429, 82 N. W. 920; Paine v. 
 Lettsville, 103 Iowa, 483, 72 X. W. 693; Ulanden v. Fort Dodge, 102 Iowa, 444. 
 71 N. W. 411, holding municipal corporation not exercising power to change 
 street grade in manner prescribed by statute liable for damages occasioned 
 thereby; Eckert v. Walnut, 117 Iowa, 630, 91 N. W. 929, holding municipality 
 changing grade of street before passing ordinance establishing it liable for dam- 
 ages to abutting owner; Caldwell v. Nashua, 122 Iowa, 181, 97 N. W. 1000, 
 holding city reducing sidewalk to level of street without adopting ordinance 
 establishing grade liable to abutter. 
 
 Cited in notes (9 LR.A. 210) on municipality, when liable for neglect of 
 officers or agents; (29 Am. St. Rep. 764) on municipal liability for injuries by 
 grading streets. 
 
 Distinguished in Cooper v. Cedar Rapids, 112 Iowa, 370, 83 X. W. 1050, hold- 
 
2 L.R.A. 606] L. R. A. CASES AS AUTHORITIES. 342 
 
 ing law requiring ordinance to authorize construction of sewer does not apply 
 to construction of temporary gutter; Reilly v. Ft. Dodge, 118 Iowa, 640, 92 N. 
 W. 887, denying liability to abutting owner of city filling street to established 
 grade before passing resolution ordering the work; Wilber v. Ft. Dodge, 120 
 Iowa, 557, 95 N. W. 186, denying liability of city bringing street to grade with- 
 out adopting resolution ordering work done, to abutter not alleging or proving 
 special damage from such failure. 
 
 2 L. R. A. 608, MCCARTHY v. BOSTON & L. R. co. 143 Mass. 550, 20 N. E. 
 
 182. 
 Circumstantial evidence of intent. 
 
 Cited in O'Brien v. Cunard S. S. Co. 154 Mass. 273, 13 L. R. A. 331, 28 N. 
 E. 266, holding consent of passenger to vaccination determinable only by overt 
 acts; Norton v. Brookline, 181 Mass. 364, 63 N. E. 930, holding employee's 
 consent to temporary stoppage of pay is presumed by continuance in office after 
 notice; Hobbs v. Massasoit Whip Co. 158 Mass. 197, 33 N. E. 495, holding re- 
 tention of skins sent in accordance with standing offer, for an unreasonable 
 time, amounts to acceptance. 
 Emancipation or adoption of child. 
 
 Cited in Nugent v. Powell, 4 Wyo. 200, 20 L. R. A. 205, 63 Am. St. Rep. 17, 
 33 Pac. 23, holding mother only necessary party to adoption proceedings where 
 father deserted family in destitute condition; Zongker v. People's Union Mer- 
 cantile Co. 110 Mo. App. 390, 86 S. W. 486, holding that acquiescence by parent 
 in an action in behalf of minor son to recover damages coupled with evidence of 
 emancipation in the action is an implied emancipation; Swift & Co. v. Johnson, 1 
 L.R.A.(N.S.) 1168, 71 C. C. A. 619, 138 Fed 873, holding wilful abandonment of 
 child by parent for period of nine years implies an emancipation. 
 
 2 L. R. A. 609, PEOPLE ex rel. HART v. McELROY, 72 Mich. 446, 40 N. W. 
 
 750. 
 Presumption of validity of statute. 
 
 Cited in People ex rel. Atty. Gen. v. Burch, 84 Mich. 413, 47 N. W. 765, hold- 
 ing mistake in journal as to nature of vote taken in senate corrected by erraia 
 does not invalidate bill; Detroit v. Detroit, 91 Mich. 81, 16 L. R. A. 63. 51 N. 
 W. 787, holding record of passage of bill as printed in official bound journal 
 amending mistake in current issue presumptively authorized; Ritchie v. 
 Richards, 14 Utah, 371, 47 Pac. 670, holding mere silence of journals as to com- 
 pliance with mandatory requirement of Constitution insufficient to overcome 
 presumption of validity, where no record required; State ex rel. Hensley v. Plas- 
 ters, 74 Neb. 665, 3 L.R.A.(N.S.) 894, 105 N. W. 1092, 13 A. & E. Ann. Cas. 154 
 (dissenting opinion), on the presumption of validity of statute. 
 
 Cited in footnote to Norman v. Kentucky B. of Managers. 18 L. R. A. 55o_ 
 which holds presumption that statute constitutionally enacted not conclusive. 
 
 Cited in note (23 L. R. A. 344) on collusiveness of general expressions 
 in enrolled bill as to fact of passage. 
 Passage of act. 
 
 Cited in Detroit v. Chapin, 108 Mich. 143, 37 L. R. A. 398, 66 N. W. 587 r 
 holding bill passed by legislature prior to last five days of session and ap- 
 proved by governor within ten days, but not until after adjournment, valid. 
 
 Cited in notes (11 L.R.A. 491) on passage of bill through legislature; (67 
 L.R.A. 967) on construction of constitutional limitations as to time for intro- 
 duction of bills in legislature; (47 Am. St. Rep. 822) on proof of enactment of 
 statute; (40 L.R.A. (N.S.) 7, 13, 35, 37, 38) on collusiveness of enrolled bill. 
 
343 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 609 
 
 Journals as evidence of proceeding* of legislature. 
 
 Cited in Auditor General v. Menominee County, 89 Mich. 579, 51 N. W. 483, 
 holding affidavits of senators entered "present" in journal incompetent, though 
 entered in journal, to rebut prior entry; Sackrider v. Saginaw County, 79 Mich. 
 6. 44 X. W. 1G5, holding parol evidence of representatives as to contents of 
 bill, inadmissible; People v. Dettenthaler, 118 Mich. 599, 44 L. R. A. 166, 77 
 X. W. 450. holding parol evidence inadmissible to show amendment of act by 
 supplying omitted enacting clause before presenting to governor for approval; 
 Atchison, T. & S. F. R. Co. v. State, 28 Okla. 96, 40 L.R.A, (N.S.) 7, 113 Pac. 
 921, holding journals of house incompetent to show that act did not pass in 
 form signed by presiding officers and approved by governor; People ex rel. 
 Kent County v. Loomis, 135 Mich. 565, 98 X. W. 262, 3 A. & E. Ann. Cas. 751, 
 on house journals as evidence; Ellis v. Boer, 150 Mich. 455, 114 N. W. 239, holding 
 that legislative intent must be gathered from act itself and the legislative 
 journals. 
 
 Cited in note (11 L. R. A. 492 ) on printed journals as evidence. 
 Judicial cognizance of legislative journals. 
 
 Followed in Rode v. Phelps, 80 Mich. 609, 45 N. W. 493, holding void duly 
 certified law containing material proviso appearing from journals to have been 
 stricken out by both branches of legislature. 
 
 Cited in State v. Wray, 109 Mo. 598, 19 S. W. 86; and Ritchie v. Richards, 
 14 Utah, 371, 47 Pac. 670, holding journals admissible to determine validity of 
 act duly authenticated and approved; Union Bank v. Oxford, 119 N. C. 214. 34 
 L. R. A. 489, 25 S. E. 966, holding failure of journals to show mandatory re- 
 quirement of reading and vote by yea and nay renders certified and enrolled 
 act, void; State ex rel. Gregg v. Erickson, 39 Mont. 287, 102 Pac. 336, holding 
 court will not go beyond enrolled bill and house journals to determine the va 1; i- 
 ity of an act. 
 
 Cited in note (8 L. R. A. 326) on passage of bills by legislature. 
 Title of statute. 
 
 Cited in footnotes to Judson v. Bessemer, 4 L. R. A. 742, which holds provi- 
 sion authorizing issue of municipal bonds within title; Wardle v. Townsend, 4 
 L. R. A. 511, which holds provision for winding up corporation within title; 
 Thomas v. Wabash, St. L. & P. R. Co. 7 L. R. A. 145, which holds provision 
 limiting rights in water to railroad companies owning landings not within title; 
 State v. Snow, 11 L. R. A. 355, which holds prohibition of article intended for 
 use as lard, containing other ingredients than swine's flesh, within title; 
 Winona v. School Dist. Xo. 82, 3 L. R. A. 46, which holds mention in title of all 
 other acts repealed or altered unnecessary; Millvale v. Evergreen R. Co. 7 L. 
 R. A. 369, which holds act chartering freight and passenger railway suffi- 
 ciently entitled where shows purpose to charter passenger railway only; State 
 v. Burgdoerfer, 14 L. R. A. 846, which holds regulation of "bookmaking" 
 within title to "prohibit" same. 
 
 Cited in notes (8 L.R A. 858) on construction of title to statute; (19 Am. St. 
 Rep. 403) on title as bearing on construction of statutes. 
 Amendments after fifty-day limit. 
 
 Followed in Caldwell v. Ward, 83 Mich. 18, 46 X. W. 1024, and Davock v. 
 Moore, 105 Mich. 134, 28 L. R. A. 788, 63 N. W. 424, holding germane amend- 
 ment of bill in material point valid after expiration of fifty days; Toll v. 
 Jerome. 101 Mich. 471, 59 X*. W. 816, holding bill providing by title for vacation 
 of judicial circuit amendable after limit by provision for reorganization of cir- 
 cuit; Detroit v. Schmid, 128 Mich. 384, 92 Am. St. Rep. 468, 87 X. W. 383, 
 
2 L.R.A. 609] L. R. A. CASES AS AUTHORITIES. 344 
 
 holding substitution of bill amending another section of city charter than one 
 originally introduced not obnoxious to provision against introduction of bill 
 after fifty days; Brake v. Callison, 122 Fed. 724, holding call of senate not 
 necessary, under Florida Constitution, on substitute bill sent up by house. 
 
 Distinguished in Atty. Gen. v. Detroit & S. PI. Road Co. 97 Mich. 592, 56 
 N. W. 943, holding substitution of bill not germane to the object expressed in 
 original title invalid; Sackrider v. Saginavv County, 79 Mich. 65, 44 N. W. 165, 
 holding bill providing by title for discontinuance of specific road not amend- 
 able by substitution of provision for maintenance of other roads. 
 
 2 L. R. A. 614, STRINGER v. FROST, 116 Ind. 477, 9 Am. St. Rep. 875, 19 
 
 N. E. 331. 
 Care requisite In use of street. 
 
 Cited in Green v. Eden, 24 Ind. App. 592, 56 N. E. 240, holding pedestrian 
 crossing street not required to look and listen for ambulance rapidly driven 
 without gong; Eaton v. Cripps, 94 Iowa, 181, 62 N. W. 687, holding woman pre- 
 paring to take car on crowded thoroughfare not negligent in failing to see 
 rapidly approaching train; Scofield v. Myers, 27 Ind. App. 376, 60 N. E. 1005, 
 holding party driving on street entitled to presume that train rapidly ap- 
 proaching from rear is under control and in competent hands; Henry v. Grand 
 Ave. R. Co. 113 Mo. 536, 21 S. W. 214, holding greater care requisite when 
 crossing street at unusual place; Pittsburgh, C. C. & St. L. R. Co. v. Martin, 
 157 Ind. 223, 61 N. E. 229, holding engineer entitled to presume that employees 
 of another company, using common tracks in union station, will observe usual 
 signals; Schwartz v. New Orleans & C. R. Co. 110 La. 545, 34 So. 667, holding 
 person standing between car tracks not bound to anticipate lateral movement 
 bringing cars passing on curve close together; Indianapolis Street R. Co. v. 
 Mavschke, 166 Ind. 495, 77 N. E. 945, holding that one driving on street railway 
 track may suppose that due care will be used by persons in charge of car approach- 
 ing from rear; Robards v. Indianapolis Street R. Co. 32 Ind. App. 309, 67 N. E. 
 953 (dissenting opinion), on same point; Indianapolis Street R. Co. v. O'Donnell, 
 35 Ind. App 317, 73 N. E. 163, holding plaintiff driving at rate of three miles per 
 hour across car track was not at fault when struck by car which was one hundred 
 feet distant when he attempted to cross track; Graham v. Evening Press Co. 135 
 Mich. 303, 97 N. W. 697, holding pedestrian not under duty to keep constant look- 
 out to the rear when crossing street; Garside v. New York Transp. Co. 146 Fed. 
 598, holding that care to be used by person alighting from street car in keeping 
 lookout is to be controlled by attendant circumstances; Apperson v. Lazro, 44 
 Ind. App. 192, 87 N. E. 97, holding that fact that man almost blind was walking 
 unattended along edge of road does not constitute negligence. 
 
 Cited in footnote to State v. Lauer, 20 L. R. A. 61, which holds it contributory 
 negligence to leave surveyor's transit set up in street. 
 
 Cited in notes (7 L. R. A. 678) on contributory negligence as defense; (11 L. 
 R. A. 35) on excessive speed in streets; (17 L. R. A. 124) on deviation from usual 
 thoroughfare as negligence in pedestrian; (69 LJR.A. 540) on duty to maintain 
 lookout along highways to avoid injury to sick, infirm, or helpless persons, with 
 whom no contract relation is sustained; (19 L.RA.(N.S.) 163) on duty of pedes- 
 trian on public street to avoid passing teams; (10 Am. St. Rep. 883) on negligence 
 of railway company; (48 Am. St. Rep. 376) on rights by travelers in road and 
 presumption of negligence from being on wrong side. 
 
 Distinguished in Evans v. Adams Exp. Co. 122 Ind. 366, 7 L. R. A. 680, 23 N. 
 E. 1039, holding party standing still in conversation in street not entitled to re- 
 cover for injuries inflicted by wagon driven inattentively. 
 
345 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 621 
 
 Question for jury. 
 
 Cited in Stallman v. Shea, 99 Minn. 426, 109 N. W. 824, holding contributory 
 negligence a question for jury where plaintiff took into consideration distance of 
 approaching team and relied on fact that driver would see her; Morgan v. Pleshek 
 J20 Wis. 309, 97 N. W. 916, on contributory negligence and negligence in use 
 of streets as a question for jury. 
 General and special verdicts. 
 
 Cited in note (6 L. R. A. 574) on when special verdict controls general. 
 Objections and exceptions. 
 
 Cited in note (8 L. R. A. 609) on insufficiency of general exception. 
 Liability of infant for tort. 
 
 Cited in note (57 L. R. A. 674) on general liability of infant for torts. 
 
 2 L. R. A. 615, POWELL v. CAMPBELL, 20 Nev. 232, 19 Am. St. Rep. 350, 20 
 
 Pac. 156. 
 I. is peiideiis. 
 
 Cited in Wilkinson v. Elliott, 43 Kan. 594, 19 Am. St. Rep. 158, 23 Pac. 614, 
 holding Us pendens ineffectual where divorce petition file-marked but not left on 
 file, nor issued with summons. 
 
 Cited in notes (4 L.R.A. 718) on lis pendens generally; (24 Am. St. Rep. 373) on 
 purchaser pendente lite as a bona fide purchaser; (56 Am. St. Rep. 865) on law 
 of lis pendens. 
 
 Distinguished in Sun Ins. Co. v.' White, 123 Cal. 202, 55 Pac. 902, holding 
 bona fide mortgage of separate property by husband pending divorce suit valid, 
 where no intent to prevent enforcement of decree. 
 Jurisdiction of equity. 
 
 Cited in Brandon v. West, 28 Nev. 507, 83 Pac. 327, holding equity will decree 
 performance of contract to convey right to take land based on oral agreement 
 with defendant's grantor where plaintiff took possession and paid for privilege. 
 
 Cited in footnote to Ada County v. Bullen Bridge Co. 36 L. R. A. 367, which de- 
 nies right to maintain equitable action to cancel county warrants. 
 
 Cited in note (11 L. R. A. 69) on equity jurisdiction where remedy at law 
 available. 
 Alimony. 
 
 Cited in footnote to Hooper v. Hooper, 44 L.R.A. 725, which sustains allow- 
 ance of gross sum from husband's estate in addition to monthly alimony. 
 
 Cited in note (102 Am. St. Rep. 706) on power of courts to create and enforce 
 liens to secure payment of alimony. 
 
 2 L. R. A. 621, PENNSYLVANIA R. CO. v. BOWERS, 124 Pa. 183, 16 Atl. 836. 
 Acceptance of statute. 
 
 Distinguished in Gloninger v. Pittsburgh & C. R. Co. 139 Pa. 35, 21 Atl. 211, 
 holding railway whose charter authorized increase of indebtedness not limited by 
 legislation of 1874 where its benefits not taken advantage of. 
 Legislative limitation of carrier's liability for negligence. 
 
 Cited in Palmer v. Philadelphia B. & W. R. Co. 218 Pa. 121, 66 Atl. 1127, hold- 
 ing leading case not to apply to constitutionality of limitation of damages against 
 carrier for tortious death to compensation, but only to limitation to fixed amount 
 for injury and death; Moyer v. Metropolitan Electric Co. 14 Pa. Dist. R. 803, as 
 approving an earlier decision except as to the constitutional abrogation of a 
 statute limiting liability for negligence. 
 
2 L.R.A. 621] L. R. A. CASES AS AUTHORITIES. 346 
 
 Power to niter corporate charters. 
 
 Cited in note (21 Am. St. Rep. 148) on power to alter corporate charters. 
 
 2 L. R. A. 623, COM. v. DONAHUE, 148 Mass. 529, 12 Am. St. Rep. 591, 20 N. 
 
 E. 171. 
 Forcible retaking of property. 
 
 Followed in Stevens v. Friedman, 58 W. Va. 80, 51 S. E. 132, holding owner 
 liable for use of more force than necessary in retaking of property. 
 
 Cited in Heminway v. Heminway, 58 Conn. 445, 19 Atl. 766, holding secretary 
 justified in forcibly regaining possession of letter file from director using same 
 for purposes hostile to corporation; State v. Hartley, 75 Conn. 108, 52 Atl. 615, 
 holding owner may reasonably resist officer attempting to attach exempt property ; 
 State v. Dooley, 121 Mo. 598, 26 S. W. 558, holding recovery of possession of 
 horses at point of revolver excessive force; State ex rel. Rhodes v. Saunclers, 66 
 N. H. 80, 18 L. R. A. 653, 25 Atl. 588, holding statute authorizing injunction 
 against maintenance of liquor nuisance valid exercise of governmental right of 
 self -protection; Drew v. State, 136 Ga. 661, 71 S E. 1108, holding owner not jus- 
 tified in killing thief without any effort to regain property by peaceable means. 
 
 Cited in notes (14 L. R. A. 317, 318) on assault in recapture of property; 
 (45 L.R.A. 687) on plea of self-defense in prosecution of crime; (67 L.R.A. 534, 
 535) on homicide to prevent robbery or burglary; (3 L.R.A. (X.S.) 252, on right to 
 use force to recover possession of personalty. 
 Larceny by fraud. 
 
 Cited in Com. v. Lannan, 153 Mass. 289, 11 L. R. A. 451, 25 Am. St. Rep. 629, 
 26 N. E. 858, holding attorney guilty of larceny, who, through trickery, retains 
 money handed him by Mient for transfer to third party; Trecy v. Jefts, 149 Mass. 
 212, 21 N. E. 360, holding debtor double paying creditor by latter's fraud may 
 maintain action to recover particular money so paid. 
 
 2 L. R. A. 625, BARTLETT v. STANCHFIELD, 148 Mass. 394, 19 N. E. 549. 
 Substitution of oral for written contract. 
 
 Cited in McNeil v. Boston Chamber of Commerce, 154 Mass. 280, 13 L. R. A. 
 560, 28 N. E. 245, holding "notice to bidders" on submitted plans and specifica- 
 tions, retaining right to reject any and all bids, may be varied by parol agree- 
 ment to accept lowest bid; Thomas v. Barnes, 156 Mass. 584, 31 N. E. 683, holding 
 evidence admissible to show oral warranty of refrigerator built under bilateral 
 written contract; Goodhue v. Hartford F. Ins. Co. 175 Mass. 190, 55 N. E. 1039, 
 holding stipulation of insurance policy against removal of goods without written 
 consent may be varied by oral agreement; Leverone v. Arancio, 179 Mass. 448, 61 
 N. E. 45, allowing recovery for extras ordered with defendant's consent, though 
 architect's certificate not given as per contract; The Sappho, 36 C. C. A. 400, 94 
 Fed. 550, Reversing 89 Fed. 370, holding corporation accepting benefit bound by 
 oral contract for extra work in repair of vessel entered into by master with 
 knowledge and consent of directors and officers; Copeland v. Hewett, 96 Me. 529. 
 53 Atl. 36, holding builder entitled to extras supplied in pursuance of alterations 
 and additions agreed upon, though not reduced to writing and signed by parties 
 as required by contract; Crowley v. United States Fidelity & G. Co. 29 Wash. 
 274, 69 Pac. 784, holding owner orally directing and contractor acting upon 
 changes waive contract provision requiring written authority for deviations from 
 plans; Close v. Martin, 208 Mass. 241, 94 N. E. 388, holding that notification to 
 owner by attorney for owner and purchaser that he would not be ready at agreed 
 time waives time provision, though contract requires written change of time: 
 Davis v. La Crosse Hospital Asso 121 Wis. 587, 99 N. W. 351, 1 A. & E. Ann. 
 
347 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 626 
 
 Cas. 950, holding the unauthorized performance of $38 extra work not to be evi- 
 dence of* an intent to waive provision that extra work may not be charged unless 
 agreed to by writing, in a $24,000 contract. 
 
 Distinguished in Merritt v. Peninsular Constr. Co. 91 Md. 466, 46 Atl. 1013, 
 disallowing claim for extra work not reduced to writing in pursuance of contract, 
 though oral contract entered into for payment therefor at time of execution of 
 original contract; Stillman v. Wickham, 106 Iowa, 599, 76 N. W. 1008, holding 
 sureties on builder's contract not liable for failure to perform oral contract sub- 
 stituted therefor; Bartlett v. Illinois Surety Co. 142 Iowa, 550, 119 N. W. 729, 
 holding that where bond provides that changes in work agreed upon will not re- 
 lease surety waiver of provision in contract by oral agreement and not as pro- 
 vided in writing will not release surety. 
 Parol agreement for extra work. 
 
 Cited in Charlotte Harbor & N. R. Co. v. Burwell, 56 Fla. 227, 48 So. 213, hold- 
 ing provision that no charge be made for extra work, unless in writing may be 
 waived by action of parties or oral agreement; Ritchie v. State, 39 Wash. 100, 
 SI Pac. 79, holding that a provision for extra charges to be made in writing, does 
 not effect the rights of the parties to contract further by implication or oral 
 agreement; Caldwell v. Schmulbach, 175 Fed. 437, holding provision for written 
 order for extras, may be waived so that contractor may recover for extras ordered 
 orally. 
 Further dealings on same subject. 
 
 Cited in O'Loughlin v. Poli, 82 Conn. 432, 74 Atl 763, holding that parties 
 to a written contract are not thereby restricted in further dealings in same sub- 
 ject matter. 
 
 2 L. R. A. 626, PHELPS v. NEW YORK, 112 N. Y. 216, 19 N. E. 408. 
 
 Followed without discussion in Van Nest v. New York, 113 N. Y. 652, 21 N. E. 
 414, and Vaughn v. Portchester, 115 N. Y. 637, 21 N. E. 1116. 
 Recovery of money paid under mistake of law. 
 
 Cited in People ex rel. Edison Electric Illuminating Co. v. Wemple, 69 Hun, 
 372, 23 N. Y. Supp. 661, holding comptroller not authorized to readjust account 
 against corporation for illegal taxes where same voluntarily paid; Baker v. 
 Bucklin, 43 App. Div. 337, 60 N. Y. Supp. 294, holding payment of liquor 
 tax under mistake of law not recoverable; Pooley v. Buffalo, 122 N. Y. 601, 26 N. 
 E. 16, holding payment of assessment void on face not recoverable; Redmond v. 
 Xe\v York, 125 N. Y. 638, 26 N. E. 727, holding payment of void paving assess- 
 ment, made to secure loan on property, not recoverable; Vanderbeck v. Rochester, 
 122 X. Y. 289, 25 N. E. 408, holding assessment on land subject to dower volun- 
 tarily paid by widow not recoverable, though purpose of assessment not fulfilled; 
 Boston Mfrs.*Mut. F. Ins. Co. v. Hendricks, 41 Misc. 489, 85 N. Y. Supp. 44, hold- 
 ing tax illegal on face, paid by foreign insurance company in apprehension of suit, 
 cannot be recovered; Smyth v. New York, 26 Jones & S. 359, 11 N. Y. Supp. 583, 
 holding assessment paid after order vacating same not recoverable; Pennock v. 
 Douglas County, 39 Neb. 301, 27 L. R. A. 125, 42 Am. St. Rep. 579, 58 N. W. 117, 
 and Budge v. Grand Forks, 1 N. D. 316, 10 L. R. A. 168, footnote p. 165, 47 N. 
 W. 3!)0, holding purchaser at sale for void tax cannot recover purchase money 
 from city; Converse v. Sickles, 74 Hun, 431, 26 N. Y. Supp. 590, holding money 
 paid in satisfaction of valid judgment, not appealed, not recoverable; Harrington 
 v. New York. 40 Misc. 169, 81 N. Y. Supp. 667, holding fine imposed by magis- 
 trate without jurisdiction, voluntarily paid, cannot be recovered; Belloff v. Dime 
 Sav. Bank. 118 App. Div. 22, 103 N. Y. Supp. 273, on non-recovery of money 
 Voluntarily paid by mistake of law. 
 
2 L.R.A. 626] L. R. A. CASES AS AUTHORITIES. 34* 
 
 Cited in footnotes to Walser v. Board of Education, 31 L. R. A. 329, which de- 
 nies right to recover back school taxes paid by mistake to district not entitled 
 to same; Rogers v. St. Paul, 47 L. R. A. 537, which denies right to recover back 
 money paid on assessment for uncompleted street improvement; McConville v. St.. 
 Paul, 43 L. R. A. 584, which authorizes property owner to recover back assess- 
 ments which he has been compelled to pay city for improvement wholly abandoned 
 without completion. 
 
 Cited in notes (4 L.R.A. 304) on recovery of money paid under mistake of 
 law; (94 Am. St. Rep. 435) on recovery back of voluntary payment. 
 "What Is "voluntary" payment. 
 
 Cited in New v. New Rochelle, 91 Hun, 217, 36 N. Y. Supp. 211, holding pay- 
 ment after issuance of distress warrant for collection of tax void on face volun- 
 tary, and not recoverable; State ex rel. Sanborn v. Stonestreet, 92 Mo. App. 220,. 
 holding payment of illegal fee bill after notice of impending enforcement against 
 property voluntary where no threat of immediate seizure; Van Hise v. Rensselaei" 
 County, 21 Misc. 576, 48 N. Y. Supp. 874, holding issuance of tax warrants en- 
 forceable against assessed property not sufficient to render payment of illegal tax, 
 involuntary; Tripler v. New York, 125 N. Y. 631, 26 N. E. 721, holding payment 
 of void sewer assessment voluntary where the only coercion proved is running 
 of interest and imposition of lien; Palmer v. Syracuse, 26 Misc. 567, 57 N. Y. 
 Supp. 600, holding provision for addition of interest and fees to unpaid local as- 
 sessments does not render payment involuntary; Matthews v. William Frank 
 Brewing Co. 26 Misc. 48, 35 N. Y. Supp. 241, holding fact of protest at time of 
 payment does save right to contest tax subsequently; Morris v. New Haven, 78 
 Conn. 675. 63 Atl 123, holding a payment of taxes under protest in response to a 
 bill merely inviting payment in absence of coercion or duress the assessment being 
 without warrant, is voluntary and citing annotation also on this point; Rupert 
 v. North Pelham, 139 App. Div. 304, 123 N. Y. Supp. 944, holding that payment 
 by landowner, after property is sold for void tax, of amount claimed under cer- 
 tificate of sale is not voluntary; Gaar, S. & Co. v. Shannon, 52 Tex. Civ. App. 
 643, 115 S. W. 361, holding that payment of franchise tax, with knowledge of 
 facts rendering it illegal, is voluntary: Flower v. State, 65 Misc. 150, 12] X. 
 Y. Supp. 96, holding tax voluntarily paid levied under an unconstitutional law 
 may not be recovered 
 
 Annotation cited in Johnson v. Crook, 53 Or. 334, 133 Am. St. Rep. 834, 100> 
 Pac. 294, on the voluntary nature of a payment made by a party informed of all 
 facts connected with subject matter of payment, in absence of duress or coercion 
 though made with protest. 
 
 Cited in footnotes to St. Anthony & D. Elevator Co. v. Soucie, 50 L.R.A. 262, 
 which sustains right to recover illegal taxes paid under protest to prevent tax col- 
 lector's sale of personal property constructively; C. & J. Michel Brewing Co. v. 
 State, 70 L.R.A 911, which holds that requiring foreign corporation to pay license 
 fee as condition precedent to sale of products within state or subject itself to 
 penalties supposed to be prescribed by statute not such compulsion as will en- 
 title it to recover amounts paid on statute being held unconstitutional. 
 Delegation of discretionary powers. 
 
 Cited in Greater New York Athletic Club v. Wurster, 19 Misc. 447, 43 N. Y. 
 Supp. 703, holding power of common council to regulate and license theaters, etc., 
 cannot be delegated to mayor; Bolton v. Gilleran, 105 Cal. 248, 45 Am. St. Rep. 
 33, 38 Pac. 881, holding sewer assessment based on contract leaving matters of 
 construction and resultant expense to discretion of engineer invalid; Chase v. 
 Scheerer, 136 Cal. 252, 68 Pac. 768, holding tax sale based upon assessment for 
 improvement of street under contract permitting change of plans and allowance^ 
 
349 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 629 
 
 for "settling" by city engineer void; Jewell Belting Co. v. Bertha, 91 Minn. 11, 
 97 X. W. 424. holding city council cannot delegate authority to city president 
 and recorder to purchase a fire engine the council being by statute the governing 
 iody charged with administrative affairs; Hinman v. Clarke, 121 App. Div. 107, 
 in.! X. Y. Supp. 725, affirming 51 Misc. 257, 100 N. Y. Supp. 1068, holding an 
 -ordinance restricting moving of buildings without permit from department of pub- 
 lic works not an improper delegation of authority; Hudson v. Flemming, 139 App. 
 Div 320, 123 X. Y. Supp. 1065, holding that local board of health cannot delegate 
 to milk inspector power to grant licenses to sell milk. 
 
 Distinguished in Lough ry v. Pittsburgh, 29 Pittsb. L. J. N. S. 431, holding 
 selection of material to be used in paving may be delegated by council to director 
 of public works; Burchell v. New York, 30 N. Y. S. R. 419, 9 N. Y. Supp. 196, 
 holding assessment not invalid where evidence does not show its levy for pave- 
 ments the reconstruction of which is irregularly left to discretion of com- 
 missioners. 
 Right to equitable relief. 
 
 Distinguished in Pooley v. Buffalo, 124 N. Y. 208, 26 N. E. 624, holding party 
 entitled to equitable relief against assessment presumptively valid by statute, 
 but void by matter deliors record. 
 
 2 L. R. A. 629, BEDLOW v. NEW YORK FLOATING DRY DOCK CO. 112 N. Y. 
 263, 19 X'. E. 800. 
 
 !{ illation and control of public >v:iy.s. 
 
 Cited in Sun Printing & Pub. Asso. v. New York, 8 App. Div. 281, 40 N. Y. 
 Supp. 607, holding construction of municipal rapid transit works proper subject 
 of municipal enterprise; People v. Baltimore & 0. R. Co. 117 N. Y. 156, 22 X. E. 
 1026. holding statute authorizing erection of sheds upon piers or bulkheads, after 
 obtaining license, constitutional. 
 
 Cited in note (59 L. R. A. 45) on extent of sovereign's right, as against subject 
 generally, to obstruct navigation. 
 Riparian rights. 
 
 Cited in Kerr v. West Shore R. Co. 127 N. Y. 278, 27 N. E. 833, holding owner 
 of upland not entitled to compel draw in raia-oad bridge cutting off access to 
 docks in river bay; Re Xew York, 168 X. Y. 145, 56 L. R. A. 504, 61 N. E. 158, 
 Reversing 60 App. Div. 125; 69 N. Y. Supp. 994, holding municipality not au- 
 thorized to construct driveway on tideway, cutting off riparian easements, with- 
 out compensation. 
 Adverse possession by tenant. 
 
 Cited in Church v. Wright. 4 App. Div. 315, 38 N. Y. Supp. 701, holding Code, 
 373, applicable to tenant continuing in possession under deed recognizing lease, 
 after unexecuted judgment in ejectment for nonpayment of rent; Bissing v. Smith, 
 85 Hun, 569, 33 X T . Y. Supp. 123, holding grantee of tenant returning after evic- 
 tion in adverse possession so as to render conveyance of owner within twenty 
 years champertous; Lewis v. New York & H. R. Co. 162 N. Y. 222, 56 N. E. 540, 
 holding party in possession under conflicting instruments, one hostile, the other 
 consistent, with title in true owner, presumptively tenant of latter; Merritt v. 
 Smith, 27 Misc. 370, 58 X'. Y. Supp. 851, holding attornment by tenant to 
 stranger does not destroy tenancy; Shneider v. Mahl, 84 App. Div. 6, 82 X. V 
 Supp. 27, holding mortgagee not chargeable with notice of rights of prior equi- 
 table mortgagee in possession as tenant; Hoyt v. Forrest. 56 Misc. 148, 106 X. 
 Y. Supp. 1083, holding that where plaintiff has no actual possession and defendant 
 is collecting rents his action to quiet title must be dismissed; Cobb v. Robertson, 
 
2 L.R.A. 629] L. R. A. CASES AS AUTHORITIES. 350 
 
 99 Tex. 145, 122 Am. St. Rep. 609, 86 S. W. 746, holding that the holding of 
 a tenant under a lessee of landlord is the constructive holding of the landlord; 
 Illinois Steel Co. v. Budzisz, 139 Wis. 294, 119 N. W. 935, on the possession of 
 tenant as possession of landlord. 
 
 Cited in footnote to Davis v. Williams, 54 L. R. A. 749, which sustains agent's 
 right to acquire adverse title to principal's property occupied as part of contract 
 of service. 
 
 Cited in notes (53 L. R. A. 945) on power of tenant to initiate adverse pos- 
 session during term; (53 L. R. A. 949) on presumption as to possession of tenant 
 holding over; (40 L. R. A. 605) on upland owner's right of access to navigable 
 water as against private individual; (89 Am. St Rep. 88, 89, 90, 97) on estoppel 
 to deny landlord's title. 
 Landlord's title to fixtures. 
 
 Cited in notes (6 L. R. A. 249) on what constitute fixtures; (9 L. R. A. 701) 
 on tenant's right to remove fixtures after expiration of term; (11 L. R. A. 498) 
 on what operates at law as surrender of leasehold estate. 
 Riparian owner's estate in pier erected under municipal authority. 
 
 Cited in Bedlow v. Stillwell, 91 Hun, 385, 36 N. Y. Supp. 129, Affirmed on ap- 
 peal, 158 N. Y. 298, 53 N. E. 26, holding widow entitled to dower in husband's 
 interest in pier. 
 
 Cited in note (40 L. R. A. 647) on effect of constructing wharf in front of 
 property. 
 Authority to maintain pier. 
 
 Cited in Bell v. New York, 77 App. Div. 452, 79 N. Y. Supp. 347, holding com- 
 mon council could give consent to construction of pier on lands under East 
 river owned by state; Bell v. New York, 77 App. Div. 452, 79 N. Y. Supp. 347, 
 holding prescriptive right to maintain pier on state lands acquired from twenty- 
 year use; Bell v. New York, 77 App. Div. 452, 79 N. Y. Supp. 347, holding ordi- 
 nance vesting right to grant lands under water in commissioners of sinking fund 
 has no application to pier constructed by abutting owner with common council's 
 consent. 
 Description of riparian boundary of property. 
 
 Cited in People ex rel. Burnham v. Jones, 112 N. Y. 605, 20 N. E. 577, holding 
 conveyance "to the beach" not to include beach itself, where boundary is de- 
 scribed as straight line. 
 Review on appeal of exceptions to findings of fact. 
 
 Followed in Morris v. Wells, 26 N. Y. S. R. 11, 7 N. Y. Supp. 61, holding refusal 
 to find material fact established by undisputed proof reviewable on appeal ; Styles 
 v. Tyler, 64 Conn. 474, 30 Atl. 165 (dissenting opinion), holding to the same effect. 
 
 Cited in Naser v. First Nat. Bank, 116 N. Y. 497, 22 N. E. 1077, holding suffi- 
 ciency of evidence to support finding of fact not subject to review in absence of 
 exception; Halpin v. Phenix Ins. Co. 118 N. Y. 172, 23 N. E. 482, holding certifi- 
 cate that case on appeal contains all the evidence not essential to review unsup- 
 ported finding of fact duly excepted to; Larkin v. McMullin, 120 N. Y. 212, 24 N. 
 E. 447, holding exceptions to findings of fact not reviewable on appeal, where it 
 does not appear that judgment was reversed and new trial granted on questions 
 of fact; Woodman v. Penfield, 2 Silv. Sup. Ct. 248, 6 N. Y. Supp. 803, holding re- 
 fusal of referee to respond to request for findings not ground of reversal, where 
 not prejudicial to appellant; Rehberg v. Grierser, 24 Mont. 493, 63 Pac. 41, hold- 
 ing specification of errors in findings of fact requisite to review by court of 
 appeals as question of law; Woodman v. Penfield, 2 Silv. Sup. Ct. 247, 6 N. Y. 
 
351 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 630 
 
 Supp. 803, holding error in refusing proper requests to find facts not reversible 
 where referee's findings necessarily cover findings requested. 
 
 2 L. R. A. 636, ROBINSON v. OCEAN STEAM NAV. CO. 112 N. Y. 315, 19 N. E. 
 
 625. 
 Residence as affecting- jurisdiction. 
 
 Cited in O'Reilly v. New Brunswick, A. & N. Y. S. S. Co. 28 Misc. 116, 59 N. 
 Y. Supp. 261, holding averment of plaintiff's residence, essential to complaint 
 against foreign corporation in action, not available to nonresident; Hoes v. Xc\v 
 York, N. H. & H. R. Co." 173 N. Y. 441, 66 N. E. 119, Reversing 73 App. Div. 370, 
 77 X. Y. Supp. 117, holding administrator of nonresident, whose assets were 
 brought into state for purpose of obtaining letters of administration, cannot 
 prosecute cause of action arising in another state for causing intestate's death, 
 against foreign corporation; Gurney v. Grand Trunk R. Co. 37 N. Y. S. R. 561, 
 13 X. Y. Supp. 645, holding complaint by local administrators of foreign decedent 
 against foreign corporation for injuries received out of state not demurrable where 
 plaintiff's nonresidence not apparent from complaint; Gundlin v. Hamburg-Amer- 
 ican Packet Co. 8 Misc. 296, 28 N. Y. Supp. 572, upholding judgment rendered on 
 general verdict where plaintiff's residence submitted to jury; Re Bailey, 31 Nev. 
 382, 103 Pac. 232, Ann. Cas. 1912a, 743, holding that nonresident may take out 
 letters of administration; Re Gennert, 96 App. Div. 1], 89 N. Y. Supp. 37, holding 
 surrogate court has no jurisdiction to issue ancillary letters of administration 
 where petitioner, executors and personal property of decedent are situated out 
 of the state and decedent estate is solvent; Brisbane v. Pennsylvania R. Co. 141 
 App. Div. 368, 125 N. Y. Supp. 1042, holding that court has jurisdiction of action, 
 by resident against foreign corporation for damages to foreign land; Jones v. 
 Burr Bros. 142 App. Div. 641, 127 N. Y. Supp. 478, holding court without juris- 
 diction of action by nonresident against foreign corporation for breach of con- 
 tract made in another state for services therein; Johnson v. Victoria Chief Copper 
 Min. & Smelting Co. 65 Misc. 334, 119 N. Y. Supp. 639, holding court not to have 
 jurisdiction where parties are nonresidents and subject matter is without the 
 state: Hopper v. Hopper, 20 N Y. Civ. Proc. Rep. 107, holding word "only" in 
 statute is restrictive of the jurisdiction defined. 
 
 Cited in footnote to Robertson v. Chicago, St. P. M. & 0. R. Co. .66 L.R.A. 919, 
 which holds widow residing in one state of resident of such state who was negli- 
 gently killed in another state entitled to benefit of statute of latter state making 
 negligent party liable therefor and requiring amount of recovery to be paid widow. 
 
 Cited in notes (56 L. R. A. 215, 218) on right of local representative to sue 
 on foreign cause of action; (14 L. R. A. 583) on constitutional equality as to 
 privileges in litigation; (7 L.R.A. 522, 543, 548) on right of nonresidents to sue 
 foreign corporations; (59 Am. St. Rep. 875, 878) on right to prosecute transitory 
 causes of action in other jurisdiction; (85 Am. St Rep. 921, 926) on jurisdiction, 
 of foreign corporations. 
 
 Distinguished in Smith v. Crocker, 14 App. Div. 249, 43 N. Y. Supp. 427, retain- 
 ing jurisdiction in action of contract between nonresidents; Hopper v. Hopper, 
 125 N. Y. 400, 12 L. R, A. 238, 26 N. E. 457, holding foreign executor taking out 
 local ancillary letters subject to suit as resident; Herbert v. Montana Diamond 
 Co. 81 App. Div. 214, 80 N. Y. Supp. 717, holding complaint against foreign cor- 
 poration, not alleging plaintiff's residence, not demurrable. 
 
 Cited as distinguished in Hunter W. Finch & Co. v. Zenith Furnace Co. ]46 111. 
 App. 268, denying power "to sue or be sued" without reference to charter powers. 
 Jurisdiction over subject-matter of unit. 
 
 Cited in Monda v. Wells, F. & Co. 20 Misc. 687, 46 N. Y. Supp. 682, Affirmed in 
 
2 L.R.A. 636] L. R. A. CASES AS AUTHORITIES. 352 
 
 21 Misc. 309, 47 N. Y. Supp. 182, holding court without jurisdiction of action 
 between nonresidents on through contract of shipment made and performable out 
 of state; Perry v. Erie Transfer Co. 28 Abb. N. C. 432, 19 N. Y. Supp. 239, 22 
 N. Y. Civ. Proc. Rep. 181, dismissing complaint between nonresidents on contract 
 made and broken in another state though performable in part within jurisdiction; 
 Hatfield v. Sisson, 28 Misc. 256, 59 N. Y. Supp. 73, dismissing complaint for slan- 
 der between nonresidents where words spoken outside state; Smith v. Empire 
 State Idaho Min. & Development Co. 127 Fed. 465, holding nonresident widow 
 may sue foreign corporation negligently causing husband's death in another state, 
 in courts of state where it maintains principal office; Ferguson v. Xeilson, 33 N. 
 Y. S. R. 815, 11 N. Y. Supp. 524, dismissing action between nonresidents for tort 
 outside state; Anglo- American Provision Co. v. Davis Provision Co. 50 App. Div. 
 275, 63 N. Y. Supp. 987, Affirmed in 169 N. Y. 513, 88 Am. St. Rep. 608, 62 N. E. 
 587, holding foreign judgment not enforceable between nonresidents, since it is 
 not a cause of action arising within state; Selser Bros. Co. v. Potter Produce 
 Co. 77 Hun, 314, 28 N. Y. Supp. 428, holding attachment in proceeding between 
 nonresidents erroneously granted where affidavit fails to show contract made or 
 broken in jurisdiction; Potter v. New York City Baptist Mission Soc. 23 Misc. 
 680, 52 N. Y. Supp. 294, holding appearance of parties insufficient to cure com- 
 plaint failing to state cause of action; Dayton v. Board of Equalization. 33 Or. 
 136, 50 Pac. 1009, holding jurisdiction of board not dependent upon appearance 
 in record of fact of due preparation of tax rolls; Barker v. Cunard S. S. Co. 91 
 Hun, 501, 36 N. Y. Supp. 256 (concurring opinion), majority holding jurisdiction 
 of court of general jurisdiction in action against foreign corporation presumed, 
 where contrary is not shown on trial or by record on appeal; Hoes v. Xew York. 
 N. H. & H. R. Co. 33 X. Y. Civ. Proc. Rep. 313, holding the jurisdiction could 
 not be conferred by bringing trifling assets into the state on which to appoint 
 an administrator to sue. 
 
 Distinguished in Flynn v. Central R. Co. 2 Misc. 510, 27 Abb. N. C. 33, 15 N. 
 Y. Supp. 328, retaining jurisdiction of action by resident against foreign corpo- 
 ration for injuries received outside state; Colorado State Bank v. Gallagher, 76 
 Hun, 311, 27 N. Y. Supp. 688, holding action by nonresident corporation against 
 nonresident on foreign contract, within court's jurisdiction; Ladenburg v. Com- 
 mercial Bank, 24 N. Y. Civ. Proc. Rep. 235, 32 N. Y. Supp. 873, holding failure 
 of affidavit in attachment against foreign corporation to show facts bringing case 
 within Code provisions not void where defect supplied by affidavit filed nunc pro 
 tune; Wertheim v. Clergue, 53 App. Div. 124, 65 N. Y. Supp. 750, holding non- 
 resident entitled to trial of action arising out of state for fraudulent breach of 
 contract; Barrow S. S. Co. v. Kane, 170 U. S. 110, 42 L. ed. 968, 18 Sup. Ct. 
 Rep. 526, holding right of citizens of diverse residence to sue in Federal courts 
 not controlled by state legislation. 
 Taking of objection to jurisdiction* 
 
 Cited in Gillin v. Canary, 19 Misc. 599, 44 X. Y. Supp. 313, holding party con- 
 solidating claims not estopped to object on appeal that amount of consolidated 
 claims exceeds jurisdiction of court; Tyroler v. Gummersbach, 28 Misc. 158, 59 
 N. Y. Supp. 266, reversing judgment on appeal where record failed to show juris- 
 diction of inferior court over defendant; Baird v. Sheehan, 38 App. Div. 15, 56 
 N. Y. Supp. 228, where appellate court ex mero motu refused relief on contract 
 void as against public policy; Miller v. Suncle, 1 X. D. 4, 44 X. W. 301, reversing 
 sua sponte on appeal judgment rendered after transfer of cause to Federal court; 
 Levy v. Swick Piano Co. 17 Misc. 147, 39 X. Y. Supp. 409, holding party not es- 
 topped to attack validity of order in supplementary proceedings against corpora- 
 tion by institution of like proceeding himself; Cohen v. Xagle, 190 Mass. ]4, 2 
 
353 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 638 
 
 L.R.A.(N.S.) 971, 76 N. E. 276, 5 A. & E. Ann. Cas. 553, holding findings of lower 
 court will not be set aside on appeal for error or jurisdiction unless they plainly 
 appear to be wrong. 
 
 Distinguished in Ubart v. Baltimore & 0. R. Co. 117 App. Div. 832, 102 X. 
 Y. Supp. 1000, holding nonresidence must be pleaded to raise question of fact. 
 
 2 L. R. A. 638, BRYAN v. UNIVERSITY PUB. CO. 112 N. Y. 382, 19 N. E. 825- 
 Propriety of order for publication. 
 
 Cited in Von Hesse v. Mackaye, 55 Hun, .370, 8 N. Y. Supp. 894, Reversing 5 N 
 Y. Supp. 791, holding publication against nonresident claimant of bond not within 
 state unauthorized; Paget v. Stevens, 143 X. Y. 177, 38 X. E. 273, Reversing 8 
 Misc. 238, 28 N. Y. Supp. 549, holding publication unauthorized in action by 
 plaintiffs, of whom one alien, for nonresident's foreign misconduct; Montgomery 
 v. Boyd, 60 App. Div. 136, 70 X. Y. Supp. 139, holding publication against non- 
 resident unauthorized unless complaint shows that plaintiff has a cause of action 
 against defendant; Chesley v. Morton, 9 App. Div. 463, 41 N. Y. Supp. 463, hold- 
 ing publication authorized in suit to enforce partner's lien upon dissolved part- 
 nership's domestic assets; Hartzell v. Vigen, 6 N. D. 132, 35 L. R. A. 458, 66 Am. 
 St. Rep. 589, 69 X. W. 203, holding that "subject of action," of which affiant must 
 show that the court has jurisdiction to warrant publication, relates to the contro- 
 versy, and not property attached; Foster v. Electric Heat Regulator Co. 16 Misc. 
 148, 37 N. Y. Supp. 1063, holding publication unauthorized without plaintiff's res- 
 idence alleged in verified complaint; Scharmann v. Schoell, 23 App. Div. 402, 48 N. 
 Y. Supp. 306, holding cause of action stated in action upon bond of administrator 
 not made party, where his absconding or concealment after collecting property 
 alleged; O'Reilly v. Xew Brunswick, A. & N. Y. S. S. Co. 28 Misc. 118, 59 N. Y. 
 Supp. 261, holding no cause of action stated against foreign corporation unless 
 plaintiff's residence alleged; Holmes v. Bell, 139 App. Div. 461, 124 N. Y. Supp. 
 301, holding that complaint must allege cause of action of which court can take 
 cognizance to justify order for publication; Grant v. Cobre Grande Copper Co. 126 
 App. Div. 758, 111 X. Y Supp. 386, on pleading facts constituting claim and ap- 
 pearance of jurisdiction as necessary to support publication; Murphy v. Franklin 
 Sav. Bank, 131 App. Div. 764, 116 N. Y. Supp. 228 (dissenting opinion), on the 
 impropriety of orders of publication where personal property in question is 
 located without the state; P. H. & F. M. Roots Co. v. Decker, 111 Minn. 462, 127 
 N. W. 417, holding that jurisdiction to determine ownership of letters patent 
 must be obtained by personal service on defendant within territorial limits of 
 court's jurisdiction. 
 
 Cited in note (22 Am. St. Rep. 402) on service by publication. 
 
 Distinguished in Taylor v. Security Mut. L. Ins. Co. 38 Misc. 577, 77 N. Y. 
 Supp. 1012, holding publication good against foreign pledgee of insurance policy 
 payable within state in action to ascertain payee; Bragg v. Gaynor, 85 Wis. 
 488, 21 L. R. A. 168, 55 N. W. 919, holding debt authorized basis for publication 
 in action to reach nonresident's domestic property. 
 Remedy for improper order. 
 
 Cited in Everett v. Everett, 22 App. Div. 475, 47 N. Y. Supp. 994, holding de- 
 fendant may appear specially for substantial objection to jurisdiction, before 
 general appearance; Guffey v. Grand Trunk R. Co. 67 Misc. 559, 122 N. Y. Supp. 
 947, holding that an order for service of summons by publication will be vacated 
 on motion where defendant and property are outside the state and no warrant 
 has been actually issued. 
 
 L.R.A. Au. Vol. I. 23. 
 
2 L.R.A. 638] L. R. A. CASES AS AUTHORITIES. 354 
 
 2 I,. R. A. 642, HONDURAS v. SOTO, 112 N. Y. 310, 8 Am. St. Rep. 744, 19 N. 
 
 E. 845. 
 Induction of "person." 
 
 Cited in West Coast Mfg. & Invest. Co. v. West Coast Improv. Co. 25 Wasb. 
 642, 62 L. R. A. 771, 66 Pac. 97, holding the state within warranty of title gen- 
 erally against all persons; Giddings v. Holter, 19 Mont. 267, 48 Pac. 8, holding 
 United States a person within covenant of warranty; Henry Huber Co. v. Warren, 
 29 Misc. 588, 61 N. Y. Supp. 247, holding a foreign corporation is not a "person" 
 within meaning of code because it maintains a local office; South Carolina v. 
 United States, 39 Ct. Cl. 290, as maintaining that such terms as "corporation" and 
 "person" are broad enough in statutory construction to include the corporate 
 side of a government or municipality. 
 
 Cited in note (19 L. R. A. 223) on nature of a sovereignty as a person. 
 Requirement of security for costs statutory. 
 
 Cited in Bonnett v. Townsend, 63 Hun, 47, 17 N. Y. Supp. 566. holding author- 
 ity to require security for costs must be found in statute, if existent. 
 Requiring additional security. 
 
 Cited in Newhall v. Appleton, 25 Jones & S. 164, 6 N. Y. Supp. 4, holding where 
 money paid into court in lieu of undertaking, additional undertaking cannot be 
 required; Dunk v. Dunk, 177 N. Y. 267, 69 N. E. 539, Affirming 88 App. Div. 298, 
 85 N. Y. Supp. 25, holding court cannot order additional security where under- 
 taking for costs was voluntarily given, after service of motion, therefor; United 
 States Land & Invest. Co. v. Bussey, 53 Hun, 519, 6 N. Y. Supp. 416, holding 
 court cannot order additional undertaking in replevin; McHugh v. Astrophe, 1 
 Misc. 219, 20 N. Y. Supp. 878, holding defendant, substituted by order of inter- 
 pleader, cannot be required to furnish security for costs as condition for asserting 
 claim; Schroeder v. Page, 124 App. Div. 255, 108 N. Y. Supp. 721, holding the 
 taking of additional security for costs not authorized under code where before 
 application therefor the action has been dismissed and judgment entered for costs 
 and plaintiff's appeal there being nothing to indicate inability of plaintiffs to 
 pay judgment; Banes v. Rainey, 124 App. Div. 584, 109 X. Y. Supp. 140, holding 
 nonresident plaintiff not obliged to give additional security for costs after judg- 
 ment is entered dismissing complaint, plaintiff appealing; Newhall v. Appleton, 
 25 Jones & S. 162, 6 N. Y. Supp. 4, holding court has no power to order nonresi- 
 dent plaintiff to file additional security for costs where in pursuance of an order 
 for security plaintiff has filed money in lieu of security. 
 
 Cited as changed by statute and distinguished in Brewster v. Wooster, 9 Misc. 
 G92, 30 N. Y. Supp. 546, sustaining authority to require of nonresident additional 
 undertaking for costs where sum in original insufficient. 
 Costs as statutory right. 
 
 Cited in Ponce De Leon v. Brooklyn Heights R. Co. 125 App. Div. 753, 110 X. Y. 
 Supp. 571, holding costs not allowable because under circumstances of case statute 
 denied them owing to smallness of amount recovered. 
 
 2 L. R. A. 644, DEOBOLD v. OPPERMANN, 111 N. Y. 531, 684, 7 Am. St. Rep. 
 
 760, 19 N. E. 94. 
 Privity of sureties. 
 
 Cited in Altman v. Hofeller, 152 N. Y. 503, 46 N. E. 961, holding judicial set- 
 tlement of administrator's account conclusive upon sureties; Greer v. McXeal. ]1 
 Okla. 531, 69 Pac. 893, holding sureties on administrator's bond concluded by 
 probate court decree rendered upon final accounting, to which they were not 
 parties; Re Gall, 42 App. Div. 257, 59 N. Y. Supp. 254, holding administrator's. 
 
355 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 644 
 
 surety bound by certificate establishing claim against estate; Judge of Probate 
 v. Sulloway, 68 N. H. 515, 49 L. R. A. 349, 73 Am. St. Rep. 619, 44 Atl. 720, 
 holding sureties liable for executor's personal debt to testator, made asset by 
 statute; Re Gall, 47 App. Div. 494, (52 X. Y. Supp. 420, holding sureties and ad- 
 ministrator liable, after distribution duly presented, to person not notified of 
 final accounting; Bodine v. Williamson, 134 App. Div. 689, 119 N. Y. Supp. 500, 
 holding that surety on official bond of administrator cannot maintain suit to set 
 aside discharge of administrator and acceptance of accounts by a surrogate court 
 of competent jurisdiction in absence of collusion or fraud. 
 
 Cited in notes (7 L.R.A. 745) on suretyship and bearing of loss by one who 
 causes it; (40 L.R.A. (N.S.) 713) on effect upon surety of judgment against 
 principal. 
 Notice. 
 
 Cited in Botkin v. Kleinschmidt, 21 Mont. 6, 69 Am. St. Rep. 641, 52 Pac. 562, 
 holding sureties bound by judgment, without notice to them, against guardian. 
 
 Cited in note (132 Am. St. Rep. 761, 765) on admissibility and effect against 
 surety of judgment against principal. 
 
 Cited as modified by statute in McMahon v. Smith, 24 App. Div. 28, 49 N. Y. 
 Supp. 93, holding surety liable for administrator's failure to obey lawful order 
 upon compulsory accounting without notice. 
 
 Distinguished in Thomson v. American Surety Co. 170 N. Y. 114, 62 N. E. 1073, 
 holding surety for money which "shall come" into trustee's hands, not liable 
 for previous infidelity. 
 Liability of sureties. 
 
 Cited in Beckett v. Place, 12 Misc. 327, 33 N. Y. Supp. 634, holding non-com- 
 pliance with order for administrator personally to pay expense of second reference 
 of accounts, official default within bond; Chard v. Hamilton. 56 Hun, 267, 9 N. Y. 
 Supp. 575, holding mere surety, known as such by obligee and unsecured by 
 principals, discharged of all liability by death before principals; Johnson v. 
 Ayres, 18 App. Div. 500, 46 N. Y. Supp. 132, holding sureties for moneys legally 
 received not estopped to question decree making principal liable for moneys 
 wrongfully received: Tucker v. Stewart, 147 Iowa, 307, 126 N. W. 183, holding 
 sureties liable so long as administrator remains bound to correct fault in his 
 final report due to his fraud or mistake. 
 
 Cited in footnotes to Probate Judge v. Sulloway, 49 L. R. A. 347, which holds 
 sureties on insolvent executor's bond liable for his personal debt to testator; Ab- 
 shire v. Salver, 56 L. R. A. 936, which holds sureties on guardian's bond given 
 to obtain silence from future liabilities of surety on prior bond liable for past 
 defalcations. 
 
 Cited in note (52 L. R. A. 188) on effect, against surety on official bond, of 
 judgment against officer. 
 
 Distinguished in Cook v. Shull, 35 App. Div. 123, 54 N. Y. Supp. 696, holding 
 sureties may retain loan payable upon discharge of bond for money paid com- 
 mittee, until such discharge. 
 Agreements as to use of administration funds. 
 
 Cited in Dntcher v. Dutcher, 88 Hun, 225. 34 X. Y. Supp. 65.3, holding admin- 
 istrator's personal agreement, not by way of adjustment, invalid; Lawyers' Sure- 
 ty Co. v. Reinach. 25 Misc. 157, 54 X". Y. Supp. 205, Affirming 23 Misc. 246, 51 N. 
 Y. Supp. 162, holding false representations of administrator no defense to con- 
 version of assets paid by mistake; Moss v. Cohen, 158 N. Y. 253. 53 X. E. 8, Re- 
 versing 11 Misc. 187, 32 N. Y. Supp. 1078, holding legatee liable upon agreement 
 to repay unauthorized advancement by executor; Fidelity & D. Co. v. Butlor, 
 
2 L.R.A. 644] L. R. A. CASES AS AUTHORITIES. 356 
 
 130 Ga. 232, 16 L.R.A.(N.S.) 998, 60 S. E. 851, holding agreement between guar- 
 dian and surety against public policy where, to obtain a surety, guardian agreed 
 to deposit trust funds in bank designated by surety subject to withdrawal only 
 on joint order of the parties; Steele v. Leopold, 135 App. Div. 255, 120 N. Y. Supp. 
 569, holding cause of action to recover administration money invested without 
 authority before time for presentment of claims and accounting by adminis- 
 trator whose capacity is that of trustee after accounting is in the administrator 
 in that capacity and not in him in capacity of trustee. 
 
 Cited in note (4 L. R. A. 746) on trust funds as impressed with trust obliga- 
 tions. 
 
 Distinguished in Miles v. Pike Min. Co. 124 Wis. 285, 102 N. W. 555, holding 
 acceptance of claims against estate which estate is not liable for, not to be wrong- 
 ful in absence of fraudulent intent. 
 Husiiifss purposes. 
 
 Cited in Re Myers, 131 N. Y. 415, 30 N. E. 135, holding that the use of trust 
 funds in stock brokerage is unauthorized ; Re Cozzens, 2 Connoly, 630, 39 N. Y. S. 
 R. 391, 15 N. Y. Supp. 771, holding knowing employment of trust fund in busi- 
 ness, with only promissory note for security, devastavit; English v. Mclntyre, 29 
 App Div. 447, 51 N. Y. Supp. 697, holding trustee's fund not for speculation when 
 expenses discretionary and trustee residuary legatee upon cestui's prior death; 
 Warren v. Union Bank, 157 N. Y. 268, 43 L. R. A. 260, 68 Am. St. Rep. 777, 51 
 N. E. 1036, holding general guardian cannot engage ward's capital or credit in 
 business; Re Burr, 48 Misc. 69, 96 N. Y. Supp. 225, holding a loan of administra- 
 tion money made three months after testator's death due in one year and paid 
 twelve months after due a breach of trust. 
 Trust nature. 
 
 Cited in Wiggins v. Stevens, 33 App. Div. 88, 53 N .Y. Supp. 90, holding cestui 
 que trust may follow trust moneys into bank's assets, where received with 
 knowledge of trust. 
 
 Distinguished in Washburn v. Benedict, 46 App. Div. 489, 61 N. Y. Supp. 387, 
 holding executor with unrestricted management of personalty may sell and 
 transfer security in which invested. 
 Essentiality of damage to action of deceit. 
 
 Cited in Aron v. De Castro, 36 N. Y. S. R. 718, 13 N. Y. Supp. 372, holding 
 damage essential in equity to rescinding sale fraudulently procured; Hewlett v. 
 Saratoga Carlsbad Spring Co. 84 Hun, 252, 32 N. Y. Supp. 697, holding evidence 
 of no loss competent upon right to equitable relief for fraud; Tregner v. Hazen, 
 116 App. Div. 832, 102 N. Y. Supp. 139, holding recovery may not be had for 
 fraud unless damage therefrom be alleged and proved. 
 
 Cited in notes (6 L. R. A. 573, 8 L. R. A. 787) on damnum absque injuria. 
 
 2 L. R. A. 648, BEVERIDGE v. NEW YORK ELEV. R. CO. 112 X. Y. 1, 19 N. E. 
 
 489. 
 AVIn'ii judgment not res jndicata between defendants. 
 
 ited in Warren v. Boston & M. R. Co. 163 Mass. 486, 40 N. E. 895, and O'Con- 
 nor v. New York & Y. Land Improv. Co. 8 Misc. 245, 28 N. Y. Supp. 544. holding 
 judgment not res judicata as to defendants not joined in interest, and between 
 whom no issue litigated; Ellis v. Cole, 105 App. Div. 56, 94 N. Y. Supp. 1031 
 (dissenting opinion) on judgment as being res judicata in an action between de- 
 fendants only where issue of trial was contested in the action where both parties 
 were defendants; Maneely v. New York, 119 App Div. 391, 105 X. Y. Supp. 976, 
 on judgment against plaintiff in favor of one defendant as not being res judicata 
 in an action between defendants unless answer in the former action was served 
 
357 L. R. A. CASES AS AUTHORITIES. [2 L.R.A 6J8 
 
 on the other defendant therein; Com. v. Newton, 186 Mass. 291, 71 N. E. 699, 
 holding that a judgment in action in which no cross bill filed between defendants 
 to settle their rights 5s not res judicata in a later action on those rights; Penn- 
 sylvania Steel Co. v. Title Guarantee & T. Co. 50 Misc. 58, 100 N. Y. Supp. 299, 
 holding judgment against several defendants may not determine rights as between 
 themselves unless such rights are put in issue by pleadings or cross bill. 
 Railroad corporation, rig-lit to lease. 
 
 Cited in Prospect Park & C. I. R. Co. v. Brooklyn B. & W. E. R. Co. 84 Hun, 
 518, 32 N. Y. Supp. 857; Re Brooklyn Elev. R. Co. v. Xagel, 75 Hun, 591, 27 N. Y. 
 Supp. 669; Roosa v. Brooklyn Heights R. Co. 28 Misc. 387, 59 N. Y. Supp. 604, 
 holding power of railroad corporation to contract for use of road involves right 
 to lease; Ingersoll v. Nassau Electric R. Co. 157 N. Y. 477, 43 L. R. A. 245, 52 N. 
 E. 545 (dissenting opinion), majority holding right to contract for use of tracks 
 not subject to consent of abutting owners; Wormser v. Metropolitan Street R. Co. 
 98 App. Div. 37, 90 N. Y. Supp. 714, holding a lease of one railway to another 
 company maybe made under statute for an indefinite term of years; Re Inter- 
 borough-Metropolitan Co. 125 App. Div. 805, 110 N. Y. Supp. 186, holding the 
 stock corporation laws prohibiting combinations in restraint of trade does not 
 prohibit the leasing of competing and parallel railroads; Townsend v. Chicago 
 Union Traction Co. 1 111. C. C. 352, on the general power of board of directors 
 of a street railway corporation to lease its lines. 
 
 Cited in footnote to Van Steuben v. Central R. Co. 34 L. R. A. 577, which holds 
 unauthorized lease of railroad void. 
 
 Distinguished in Durfee v. Johnstown, G. & K. Horse R. Co. 71 Hun, 282, 24 
 N. Y. Supp. 1016, holding power of railroad corporation to lease to another does 
 not authorize lease to individual. 
 Stockholder ivithunt title to undivided earnings. 
 
 Cited in Spooner v. Phillips, 62 Conn. 73, 16 L. R. A. 467, 24 Atl. 524, holding 
 one entitled to income from stock has no title to undivided earnings for which 
 increased stock issued; Roberts v. Roberts-Wicks Co. 184 N. Y. 267, 3 L.R.A 
 (N.S.) 1038, 112 Am. St. Rep. 607, 77 N. E. 13, 6 A. & E. Ann. Cas. 213, on 
 surplus applicable to dividends; Robertson v. de Brulatour, 188 N. Y. 314, 80 
 N E. 938, holding a transfer of earnings and income from income fund to a new 
 account by bond declaring that payment thereon should be made to stockholders, 
 not a setting aside as dividends, until passage of resolution for payment of bonds 
 by treasurer. 
 Action on agreement l>y one not party. 
 
 Cited in Carrier v. United Paper Co. 73 Hun, 290, 26 N. Y. Supp. 414, holding- 
 mortgagee cannot recover from grantee assuming mortgage when grantor not 
 liable; Marklove v. Utica, C. & B. R. Co. 48 Misc. 258, 96 N. Y. Supp. 792, holding 
 a guaranty of income to city for public aid exacted from lessee railroad company 
 by lessor company is enforceable by the city. 
 
 Distinguished in Merritt v. Booklover's Library, 89 App. Div. 456, 85 N. Y. 
 Supp. 797, holding assignee of contract to supply horses and wagons to deliver 
 merchandise may enforce it. 
 Beneficial intent must appear. 
 
 Cited in O'Beirne v. Allegheny K. R. Co. 151 N. Y. 384, 45 N. E. 873, holding 
 bondholder may enforce mortgage made to trustee for his benefit; Spingarn v. 
 Rosenfeld, 4 Misc. 525, 24 N. Y. Supp. 733, holding partnership agreement to as- 
 sume indebtedness for merchandise contributed by partner enforceable by cred- 
 itor; Riordan v. First Presby. Church, 6 Misc. 87, 26 N. Y. Supp. 38, holding 
 agreement to "pay for attendance in case of illness" inures to benefit of one 
 
2 L.R.A. 648] L. E. A. CASES AS AUTHORITIES. 358 
 
 thereafter furnishing it; Street v. Goodale, 77 Mo. App. 321, holding promise by 
 "bank to customer to pay checks will not support action by payee; Ireland v. 
 United States Mortg. & T. Co. 72 App. Div. 100, 76 N. Y. Supp. 177, holding 
 agreement by lessee's agent to pay rent out of income not intended for benefit 
 of lessor; Martin v. Peet, 92 Hun, 138. 36 N. Y. Supp. 554, holding agreement 
 "to indemnify" not "to pay debts," does not inure to benefit of creditor; Feist 
 v. SchifTer, 79 Hun, 277, 29 N. Y. Supp. 423, holding promise to indemnify de- 
 fendant not intended for benefit of judgment creditor. 
 
 Distinguished in Anthony v. American Glucose Co. 49 X. Y. S. R. 862, 21 X. Y. 
 Supp. 667, holding action maintainable by stockholder on consolidation agreement 
 providing for issuance of stock to stockholders of constituent companies. 
 Corporate powers exereisable l>y directors. 
 
 Followed in Petrie v. Mutual Ben. L. Ins. Co. 92 Minn. 496, 100 X. W. 236, on 
 authority of directors of corporation to carry out corporate powers. 
 
 Cited in Flynn v. Brooklyn City R. Co. 9 App. Div. 275, 41 X. Y. Supp. 566, 
 holding pow r er of railroad company to lease exercisable by directors without as- 
 sent of stockholders; Vanderpoel v. Gorman, 140 X. Y. 576, 24 L. R. A. 552. 37 
 Am. St. Rep. 601, 35 X. E. 932, holding assignment corporate act performable 
 under authority of directors in absence of statute or by-law providing otherwise ; 
 Schaefer v. Scott, 40 App. Div. 439, 57 X. Y. Supp. 1035, holding general assign- 
 ment by president invalid, power of management being committed to directors ; 
 Skinner v. Walter A. Wood Mowing & Reaping Mach. Co. 47 X. Y. S. R. 507. 
 20 X. Y. Supp. 251, holding corporation can terminate contract only by action 
 of trustees; Louisville Trust Co. v. Louisville, X. A. & C. R. Co. 22 C. C. A. 395, 
 43 U. S. App. 550, 75 Fed. 449, holding power to guarantee bonds may be exer- 
 cised by directors without stockholders' consent; Bayles v. Vanderveer, 11 Misc. 
 211, 32 X. Y. Supp. 1117, holding directors not bound to comply with request be- 
 cause made by majority stockholders; Mosher v Sinnott, 20 Colo. App. 464, 79 
 Pac. 742, holding directors to have power to sell full paid treasury stock for 
 market value though such value is below par; Yenner v. Chicago City R. Co. 236 
 111. 362, 86 X. E. 266. on power of directors to exercise any powers granted to 
 corporation by charter; Mills v. United States Printing Co. 99 App. Div. 616, 
 91 X. Y. Supp. 185, holding committee of management appointed by board of 
 directors to have authority to do any act of management that could be done by 
 board itself; People ex rel. Manic'e v. Powell, 201 X. Y. 200, 94 X. E. 634, holding 
 that powers of directors, being original and undelegated, differ from those of 
 agents; Robinson v. Xew York, W. & B. R. Co. 123 App. Div. 356, 103 X. Y. 
 Supp. 91 (dissenting opinion), on power of directors to make contracts authority 
 for which is vested in corporation by charter; Schell v. Alston Mfg. Co. 149 Fed. 
 442, holding a declaration of dividends from surplus within discretionary power 
 of directors not to be interfered with by court. 
 "What justifies Intervention of equity. 
 
 Cited in Small v. Minneapolis Electro Matrix Co. 32 X. Y. S. R. 889, 10 X. Y. 
 Supp. 456.. holding equity will not enjoin exercise of lawful power by directors 
 in good faith; Lewisohn Bros. v. Anaconda Copper Min. Co. 26 Misc. 625, 56 X. 
 Y. Supp. 807, holding only fraud or adverse personal interest of directors justi- 
 fies interference in determining propriety of which wishes of majority stock- 
 holders entitled to great weight; Gehrt v. Collins Plow Co. 156 111. App. 103, 
 holding that equity will not order directors to declare dividend. 
 
 Distinguished in part in Farmers' Loan & T. Co. v. Xew York & X. R. Co 150 
 X. Y. 432, 34 L. R. A. 84, 55 Am. St. Rep. 689, 44 X. E. 1043, holding equity will 
 not permit majority stockholders to manipulate corporate affairs to injury of 
 minority. 
 
359 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 655 
 
 Limited in Hennessy v. Muhleinan, 27 Misc. 233, 57 X. Y. Supp. 114, holding 
 stockholder may enjoin lease involving practical abandonment during its term of 
 corporate purposes. 
 
 2 L. R. A. G55, KUXTZ v. SUMPTION, 117 Ind. 1, 19 N. E. 474. 
 
 Followed without special discussion in Cleveland, C. C. & St. L. R. Co. v. 
 Marion County, 19 Ind. App. 6G, 49 IS. E. 51. 
 Dae process of law. 
 
 Cited in Walsh v. State, 142 Ind. 363, 33 L. R. A. 394, 41 N. E. 65, with state- 
 ment that constitutional defect in statute from nonrequirement of notice had 
 been remedied by amendment; Loesch v. Koehler, 144 Ind. 282, 35 L. R. A. 683, 
 41 N. E. 326, holding act authorizing humane society to kill injured animal, not 
 providing for notice to owner, unconstitutional: McGavock v. Omaha, 40 Xeb. 
 79, 58 X. W. 543, holding law giving city power to change grades must provide 
 for notice, which must be given as prescribed; Evansville & I. R. Co. v. Hays, 118 
 Ind. 218. 20 X. E. 736, holding assessments, without notice by board of equaliza- 
 tion, invalid; Campbell v. Monroe County, 118 Ind. 120, 20 N. E. 772, holding 
 notice essential in reassessment proceedings; Scudder v. Jones, 134 Ind. 551, 32 
 X*. E. 221, holding assessment, without statutory notice, of abutting property for 
 improvement, ineffective; Kirsch v. Braun, 153 Ind. 261, 53 N. E. 1082, holding 
 opportunity for hearing of parties interested necessary to sustain assessments 
 for improvement; Power v. Larabee, 2 X. D. 153, 49 X. W. 724, holding omis- 
 sion of equalization board to meet at time fixed by law for hearing defeats as- 
 sessment; Strange v. Grant County, 173 Ind. 644, 91 X. E. 242, holding that 
 statutory provision for notice of highway proceeding and for assessment of dam- 
 ages and giving opportunity for hearing constitute due process of law; Modern 
 Loan Co. v. Police Ct. 12 Cal. App. 593, 108 Pac. 56, holding right of police court 
 by summary action to take property from possession of person alleged to have 
 stolen it and give it to another not allowing possessor to be heard can not be 
 sustained by rule authorizing taking of property without notice by summary 
 process for general welfare and also citing annotation on that point; Railroad 
 Comrs v. Columbia, N. & L. R. Co. 82 S. C. 422, 64 S. E. 240, holding that statute 
 is not a taking of property without due process of law, requiring railroad com- 
 missioners to start action against any company failing on 60 days notice to adopt 
 suggestion for extension of operations where constitutional notice and opportunity 
 for a hearing are embodied in the laws under which the commission acts. 
 
 Cited in footnotes to Gulf, C. & S. F. R. Co. v. Ellis, 17 L. R. A. 286, which 
 holds valid act authorizing attorneys' fees against railroad corporations in suits 
 on claims; Carleton v. Rugg, 5 L. R. A. 193, which holds statute authorizing in- 
 junction against liquor nuisance does not unlawfully deprive of property or 
 privileges; State v. Sponaugle, 43 L. R. A. 727, which sustains forfeiture of land 
 for five years' failure to enter for taxation; Davis v. St. Louis County, 33 L. R. 
 A. 432, which holds void act authorizing location and marking of section corners 
 without notice to persons to be assessed for cost of same; Branson v. Gee, 24 L. 
 R. A. 355, which holds act authorizing taking of gravel from private lands with- 
 out notice for highway repairs valid. 
 
 Cited in notes (3 L. R. A. 194, 11 L. R. A. 296) on constitutional protection 
 of property rights; (4 L. R. A. 724, 5 L. R. A. 359, 11 L. R. A. 224) on due 
 process of "law: (11 L. R. A. 225) on due process of law; necessity of oppor- 
 tunity for hearing; (20 Am. St. Rep. 556) on due process of law. 
 Assessment proceedings, what notice sufficient. 
 
 Cited in Tucker v. Sellers, 130 Ind. 519, 30 X. E. 531, holding notice of original 
 assessment does not validate second assessment; Eaton v. Union County Xat. 
 
2 L.R.A. 655] L. R. A. CASES AS AUTHORITIES. 360 
 
 Bank. 141 Ind. 163, 40 X. E. (193. holding appearance of one subpoenaed as witness 
 before tax board not waiver of statutory notice; Adams v. Shelbyville, 154 Ind. 
 545, 49 L. R. A. 825. 57 X. E. 114. 77 Am. St. Rep. 484 (dissenting opinion;, ma- 
 jority holding act providing for hearing of persons aggrieved impliedly author- 
 izes assessment for improvements conforming to benefits; Pulaski County v. Senn,. 
 117 Ind. 413, 20 N. E. 276; Hubbard v. Goss, 157 Ind. 487, 62 X 1 . E. 36, holding- 
 requirement of special notice of change of assessment of individual does not apply 
 to general order of equalization; Klein v. Tuhey. 13 Ind. App. 76, 40 X. E. 
 144, holding general notice by publication, as prescribed by statute, of hearing 
 on proposed improvement, validates assessment ; Barber Asphalt Paving Co. v. 
 Edgerton, 125 Ind. 463, 25 N. E. 436, holding substantial compliance with statute 
 requiring notice of proposed improvement validates assessment of abutting own- 
 ers: McEneney v. Sullivan, 125 Ind. 409, 25 X. E. 540, holding notice to abutting 
 owners to make objection to street improvement authorizes assessment therefor. 
 
 Distinguished in Hyland v. Brazil Block Coal Co. 128 Ind. 340, 26 X. E. 672, 
 holding no notice to corporation required of meeting of board directed by law 
 to value and assess corporation property; Cleveland, C. C. & St. L. R. Co. v. 
 Backus, 133 Ind. 538, 18 L. R. A. 741, 33 X. E. 421, and Smith v. Rude Bros. 
 Mfg. Co. 131 Ind. 153, 30 N. E. 947, holding law requiring statement by corpora- 
 tion to be presented to board directed to assess capital stock sufficient notice. 
 IVotice not authorized by law, no notice. 
 
 Cited in Cummings v. Stark, 138 Ind. 101, 34 N. E. 444. holding notice by 
 state tax board, not authorized by law, not legal notice validating assessment; 
 Terre Haute & I. R. Co. v. Baker, 122 Ind. 441, 24 X. E. 83, holding notice not 
 authorized by law cannot give court jurisdiction; United States v. American 
 Lumber Co. 80 Fed. 313, holding service of subpoena outside of court's jurisdic- 
 tion no notice. 
 
 Constitutionality of law not expressly providing for notice of assess- 
 ment. 
 
 Disapproved, in effect, in Allman v. District of Columbia, 3 App. D. C. 25, 
 holding notice necessary to validate assessment for street need not be provided for 
 in act; Carroll v. Alsup, 107 Tenn. 277, 64 S. W. 193, holding statute fixing time 
 and place of meeting of equalization board sufficient notice to validate change 
 in individual assessment. 
 Powers of board of equalization. 
 
 Cited in Satterwhite v. State, 142 Ind. 20, 40 N. E. 654 (dissenting opinion), 
 majority holding that equalization board may require witness to testify in pre- 
 liminary examination before giving notice of assessment to taxpayer; Jones v. 
 Rusliville Xatural Gas Co. 135 Ind. 598, 35 N. E. 390, holding board of equaliza- 
 tion quasi- judicial tribunal whose assessment of corporation stock is binding. 
 Legislature cannot confer judicial powers. 
 
 Cited in State ex rel. Hovey v. Xoble, 118 Ind. 355, 4 L. R. A. 105, 10 Am. St. 
 Rep. 143. 21 N. E. 244, holding legislature cannot confer judicial powers; 
 Smythe v. Boswell, 117 Ind. 366, 20 X. E. 263, holding powers of courts derived 
 from Constitution, not from legislature; State v. Runyan, 130 Ind. 209, 29 X. E. 
 779, holding town trustee not judicial officer; therefore presentation of false affi- 
 davit to him not perjury; Langenberg v. Decker, 131 Ind. 480, 16 L. R. A. 113, 
 31 X. E. 190, holding board of tax commissioners quasi-judicial body, on which 
 power to punish for contempt not conferrable; Ellis v. Steuben County, 153 Ind. 
 92. 54 X. E. 382, holding statute requiring exercise of judgment and discretion- 
 by ministerial officer not unconstitutional as imposing judicial functions. 
 
361 L. R. A. CASKS AS AUTHORITIES. [2 L.R.A. 302 
 
 2 L. R. A. 659, LEE v. SIMPSON, 37 Fed. 12. 
 
 Final hearing, 39 Fed. 235, which was affirmed in 134 U. S. 572, 33 L. ed. 1038, 
 10 Sup. Ct. Rep. 631. 
 Execution of power of appointment. 
 
 Cited in Lee v. Simpson, 39 Fed. 240, holding power of appointment by will 
 executed by reference thereto followed by general bequest. 
 Right to follow trust funds. 
 
 Cited in footnote to Central Stock & Grain Exchange v. Bendinger, 56 L. R. 
 A. 875, which holds broker liable to refund to principal money illegally taken 
 from agent as margins on gambling transaction. 
 
 2 L. R. A. 662, GILPATRICK v. GLIDDEN, 81 Me. 137, 10 Am. St. Rep. 245, 16 
 Atl. 464. 
 
 Second appeal, 82 Me. 202, 19 Atl. 166. 
 Resulting trusts. 
 
 Cited in Cross v. Bean, 83 Me. 64. 21 Atl. 752, holding legal title of land sub- 
 ject to trust in favor of vendee, except in hands of bona fide purchaser for value; 
 Von Trotha v. Bamberger, 15 Colo. 10, 24 Pac. 883, holding resulting trust may 
 "be established by parol where legal title held in fraud of equitable owner; Ahrens 
 v. Jones, 169 N. Y. 561, 88 Am. St. Rep. 620, 62 N. E. 666, holding property con- 
 veyed on promise of grantee to pay sum to third person impressed with trust; 
 Grant v. Bradstreet, 87 Me. 596, 33 Atl. 165, holding promise to pay annuity 
 inducing decedent not to make will enforceable in equity; Ransdel v. Moore, 153 
 Ind. 408, 53 L. R. A. 759, 53 N. E. 767, holding property impressed with trust 
 where heir, by promising to convey, prevents disposal by decedent; Lawrence v. 
 Oglesby, 178 111. 129, 52 N. E. 945, holding promise by beneficiary in will previ- 
 ously made to pay sum of money, enforceable; Amherst College v. Ritch, 151 N. 
 Y. 323, 37 L. R. A. 321, 45 N. E. 876, Affirming 10 Misc. 523, 31 N. Y. Supp. 
 885, holding promise to dispose of bequest as indicated by testator creates 
 trust; Cassels v. Finn, 122 Ga. 36, 68 L.R.A. 82, 106 Am. St. Rep. 91, 49 S. E. 
 749, 2 A. & E. Ann. Cas. 554, holding in the absence of fraud that failure of 
 devisee for benefit of another to perform an oral promise does not raise a trust 
 >ex maleficio the promisor being sole heir at law also; Mead v. Robertson, 131 Mo 
 App. 192, 110 S. W. 1095; Gemmel v. Fletcher, 76 Kan. 594, 92 Pac. 713, holding 
 equity will enforce by raising a trust, an oral promise to stand seized for use of 
 another where such promise was the fraudulent means of obtaining or retaining 
 legal title to the subject of promise; Chase y. Chase, 191 Mass. 562, 78 N. E. 115. 
 holding the remedy to be in equity where in an absolute devise to one son, oral 
 evidence will show that a share was intended for another son; Benbrook v. Yancey, 
 96 Miss. 543, 51 So. 461, holding that devisee will be adjudged to hold in trust 
 property devised to her on her promise to convey share to others; Winder v., 
 Scholey, 83 Ohio St. 217, 33 L.R.A. (X.S ) 1003, 93 N. E. 1098, 21 Ann. Cas. 1379, 
 holding that equity will declare absolute legatee a trustee ex maleficio, where 
 he had promised testator to turn over legacy to lodge; Schmeringer v. Schmerin- 
 ger, 81 Neb. 666, 116 X. W. 491, holding equity will raise a trust ex maleficio 
 where husband obtains conveyance of dying wife's property on oral promise that 
 he will devise it to demented child and care for him during life; Graves v. Graves, 
 5 Silv. Sup. Ct. 542, 9 N. Y. Supp. 145, holding to raise a trust ex maleficio the 
 frau.l must be clearly proven: Tyler v. Stitt, 132 Wis. 662, 12 L.R.A.(N.S.) 1090, 
 122 Am. St. Rop. 1012, 112 X. W. 1091, holding that in order to create a trust 
 ex maleficio in favor of an intended beneficiary it must be shown that the deced- 
 ent relied on the fraudulent representation of the trustee 
 
2 L.R.A. 662] L. R. A. CASES AS AUTHORITIES. 362 
 
 Cited in footnote to Western U. Teleg. Co. v. Shepard, 58 L. R. A. 115, which 
 holds implied trust arises in favor of grantor reserving right of action against 
 elevated railroad for damages to property, against subsequent purchaser re- 
 covering such damages. 
 
 Cited in notes (20 L.R.A. 467) on gifts by will as affected by promises made 
 to testator; (8 L.R.A.(N.S-) 699, 703) on constructive trust from fraud in frus- 
 trating decedent's intention to give property to third person; (106 Am. St. Rep. 
 96, 97, 98) on heir, devisee or legatee as trustee ex maleficio. 
 
 Distinguished in Whitehouse v. Bolster, 95 Me. 463, 50 Atl. 240, holding assent 
 of heir to proposed disposition of property creates no trust where decedent did 
 not rely thereon; Orth v. Orth, 145 Ind. 197, 32 L. R. A. 306, 57 Am. St. Rep. 
 185, 42 N. E. 277, holding parol promise by beneficiary of will to carry out 
 testator's wishes does not create trust. 
 
 Not followed in Moore v. Campbell, 102 Ala. 450, 14 So. 780, holding parol 
 trust not enforceable against real property devised. 
 Enforceability of verbal agreements within statute of frauds. 
 
 Cited in Hallowell Nat. Bank v. Marston, 85 Me. 493, 27 Atl. 529, holding in- 
 dorser estopped by conduct to assert invalidity of waiver of protest not in writing. 
 
 Cited in note (5 L. R. A. 245) on enforceability of verbal contract for exchange 
 of lands. 
 Facts found J>y trial court prevail in appellate. 
 
 Cited in Gardiner Sav. Inst. v. Emerson, 91 Me. 539, 40 Atl. 551, and Cross v. 
 Bean, 83 Me. 63, 21 Atl. 752, holding findings of fact by trial judge prevail, un- 
 less clearly shown erroneous; Herlihy v. Coney, 99 Me. 472, 59 Atl. 952. holding 
 on an appeal in equity the judgment of the presiding justice as to facts will 
 be affirmed unless it appear to be clearly wrong. 
 
 2 L. R. A. 667, PHENIX INS. CO. v. FIRST NAT. BANK, 85 Va. 765, 17 Am. 
 
 St. Rep. 101, 8 S. E. 719. 
 Right of subrogated insurer. 
 
 Cited in Baker v. Monumental Sav. & L. Asso. 58 W. Va. 414, 3 L.R.A. (X.S.) 
 83, 112 Am. St. Rep. 996, 52 S. E. 403, holding insurer of property on which 
 insured has a lien is subrogated to rights of assured in payment of amount of 
 lien in a loss. 
 
 Cited in footnote to New Hampshire F. Ins. Co. v. National L. Ins. Co. 57 L. 
 R. A. 692, which denies right of insurer, subrogated to mortgagee's claims against 
 mortgagor, to insist on charging mortgagee, retaining more than its share from 
 other policy, with amount paid to mortgagor. 
 
 Cited in notes (44 Am. St. Rep. 734) on subrogation of insurer; ( 3 L.R.A. 
 (N.S.) 80) on right of insurer to subrogation on payment of mortgage debt from 
 insurance on mortgagee's interest. 
 Interest of mortgagor in insurance by mortgagee. 
 
 Cited in note (11 L.R.A.(N.S-) 144) on interest of mortgagor in insurance se- 
 cured by mortgagee for own protection. 
 
 2 L. R. A. 668, KERR v. LUNSFORD, 31 W. Va. 659, 8 S. E. 403. 
 Burden of proof. 
 
 Cited in Seebrock v. Fedawa, 30 Neb. 433, 46 N. W. 650, holding burden of 
 proving testator's sanity is upon proponent; Eakin v. Hawkins, 52 W. Va. 126, 
 43 S. E. 211, holding burden is on attacking parties to show insanity of grantor 
 in deed. 
 
363 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 668 
 
 Interest of witness. 
 
 Cited in Trowbridge v. Stone, 42 W. Va. 458. 26 S. E. 363, holding testimony of 
 interested nonexpert witnesses inadmissible as to mental capacity to do valuable 
 labor. 
 
 Distinguished in Coffman v. Hendrick, 32 W. Va. 125, 9 S. E. 65, holding wit- 
 ness unprovided for in will, who would inherit in its absence, may testify in its 
 support. 
 Opinion of witness. 
 
 Cited in State v. Musgrave. 43 W. Va. 684, 28 S. E. 813, holding opinion of 
 witness on question within common knowledge or experience inadmissible; Shep- 
 herd v. Snodgrass. 47 W. Va. 83. 34 S. E. 879, holding opinion of nonexpert wit- 
 ness of slight value unless coupled with facts sustaining it; Aultman Co. v. 
 Ferguson, 8 S. D. 464, 66 N. W. 1081. holding expert witness cannot state value 
 of article based on description of it ; Ward v. Brown, 53 W. Va 262, 44 S. E. 488, 
 holding an instruction giving under prominence and weight to opinions of wit- 
 nesses not experts and unsupported by good reasons and facts is objectionable. 
 
 Cited in notes (36 L. R. A. 70) on opinions as to testamentary capacity; (38 
 L. R. A. 729) as to who may give testimony as to mental capacity; (36 L. R. A. 
 68) on testimony of expert witness as to testator's sanity; (42 L. R, A. 766) 
 on weight of expert testimony. 
 Hypothetical questions. 
 
 Cited in State v. Privitt, 175 Mo. 226, 75 S. W. 45Y, sustaining hypothetical 
 question, in accordance with counsel's theory, leaving out essential ingredients 
 in case; Taylor v. Taylor, 174 Ind. 679. 93 X. E. 9, holding that party may put 
 his hypothetical case as he claims it to be proved, or within reasonable infer- 
 ences from evidence and jury determines whether it is sufficiently supported 
 by evidence; State v. Cook, 69 W. Va. 728, 72 S. E. 1025, holding that state 
 may ask of doctors hypothetical questions assuming as inferable from evidence 
 that defendant was jealous of deceased and his wife. 
 
 Cited in note (39 L. R. A. 313, 314) on hypothetical statements or questions. 
 Error in excluding evidence. 
 
 Cited in Tower v. Whip, 53 W. Va. 162, 63 L. R. A. 945, 44 S. E. 179, holding 
 rejection of admissible evidence error. 
 Reversal for illegal evidence. 
 
 Cited in Taylor v. Baltimore & O. R. Co. 33 W. Va. 58, 10 S. E. 29, holding 
 erroneous admission of evidence not prejudicial not ground for reversal ; Bartlett 
 v. Patton, 33 W. Va. 83, 5 L. R. A. 529, 10 S. E. 21, holding improper evidence 
 does not justify reversal when other testimony requires verdict given ; Michaelson 
 v. Cautley, 45 W. Va. 542, 32 S. E. 170, holding judgment will be reversed if 
 illegal evidence admitted may have been prejudicial. 
 Evidence of attesting witnesses as to testator's sanity. 
 
 Cited in Stewart v. Lyons, 54 W. Va. 676, 47 S. E. 442, giving peculiar weight 
 to evidence of witnesses present, at execution of will and especially to evidence 
 of attesting witnesses; McPeck v. Graham, 56 W. Va 204, 49 S. E. 125. on 
 weight to be given to the opinion of nonexpert witnesses as to the mental condi- 
 tion of a person. 
 
 Cited in notes (38 L. R. A. 746) as to evidence of attesting witnesses as to 
 testamentary capacity; (39 L. R. A. 720) as to weight of opinion of attesting 
 witness as to testamentary capacity; (77 Am. St. Rep. 478) on competency of 
 subscribing witnesses to wills and effect of their evidence in support of or 
 opposition to will. 
 
2 L.R.A. 668] L. E. A. CASES AS AUTHORITIES. 364 
 
 Distinguished in Ward v. Brown, 53 W. Va. 255, 44 S. E. 488, holding instruc- 
 tion that evidence of attesting witnesses, testifying against testator's sanity, is 
 entitled to peculiar weight, erroneous. 
 Capacity to make deed. 
 
 Cited in Dean v. Dean, 42 Or. 298, 70 Pac. 1039, holding greater degree of 
 mental capacity required to make deed than to execute will ; Eakin v. Hawkins, 
 52 W. Va. 127, 43 S. E. 211, holding feebleness of mind will not invalidate deed 
 of grantor understanding nature of act. 
 Time of evidence as to capacity. 
 
 Cited in Martin v. Thayer, 37 W. Va. 52, 16 S. E. 489, holding testamentary 
 capacity determined by testator's mental condition when will was executed; 
 Bever v. Spangler, 93 Iowa, 597, 61 X. W. 1072, holding testimony as to mental 
 soundness for six years after execution of will admissible. 
 Old apre not proof of incapacity. 
 
 Cited in Buckey v. Buckey, 38 W. Va. 173, 18 S. E. 383, and Bowdoin College 
 v. Merritt, 75 Fed. 488, holding old age does not disqualify one to execute deed. 
 Testamentary capacity. 
 
 Cited in Roller v. Kling, 150 Ind. 164, 49 1ST. E. 948, to contention that testa- 
 mentary capacity depends on ability to know and understand, and not on actual 
 knowledge; Perkins v. Perkins, 116 Iowa. 260, 90 N. W. 55, holding testamentary 
 capacity consists in understanding nature of will and ability to recollect proper- 
 ty, objects of bounty, and manner of distribution; Ward v. Brown. 53 W. Va. -2t>3. 
 44 S. E. 488, holding necessary a sufficiency of mind and memory to understand 
 nature of his act and recollect property which he wished to dispose of, to whom, 
 and the manner in which he meant to distribute it. 
 
 Cited in notes (4 L. R. A. 738) as to testamentary capacity; (12 L. R. A. 162) 
 on testamentary capacity as affected by insane delusion; (27 L.R.A. (X.S.) 24. 25. 
 34, 35, 47, 54, 92) on what is testamentary capacity; (140 Am. St. Rep 352) 
 on adjudication of insanity or existence of guardianship as showing incapacity to 
 execute contracts, make wills, etc. 
 Injference of undne influence. 
 
 Cited in footnotes to Re Shell, 53 L.R.A. 387, which holds undue influence~in 
 procuring will not inferable from motive and opportunity alone; Kennedy v. 
 Dickey, 68 L.R.A. 317, which holds will not annulled for undue influence by 
 honest and moderate intercession cr persuasion unaccompanied witli fraud,, deceit, 
 threats, or putting in fear. 
 
 Cited in note (31 Am. St. Rep. 676, 680) on undue influence as effecting validity 
 of wills. 
 Repetition In instructions. 
 
 Cited in State v. Bingham, 42 W. Va. 240, 24 S. E. 883; and State v. Sheppard 
 49 W. Va. 611, 39 S. E. 676, holding instruction properly refused if already sub- 
 stantially given; State v. Huffman, 69 W. Va. 776, 73 S. E. 292; Richards v River- 
 side Iron Works, 56 W. Va. 524, 49 S. E. 437, holding court not bound to repeat 
 instruction already substantially giA'en. 
 Conformity of instructions to evidence. 
 
 Cited in Carrico v. West Virginia C. & P. R. Co. 39 W. Va. 101, 24 L. R. A. 55, 
 19 S. E. 571; Fisher v. West Virginia & P. R. Co. 39 \\. Va. 373, 23 L. R. A. 761, 
 19 S. E. 578; Bentley v. Standard F. Ins. Co. 40 W. Va. 747, 23 S. E. 584; Oliver 
 v. Ohio River R. Co. 42 W. Va. 723, 26 S. E. 444, holding instructions must be 
 based on facts in evidence; State v. Hertzog, 55 W. Va. 84, 46 S. E. 792, holding 
 it no error to refuse instruction not specially adapted to nor based upon facts of 
 
365 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 680 
 
 case which the evidence fairly tends to prove; Robinson v. Lowe, 56 W. Va. 313, 
 49 S. E. 250, holding instruction not relevant unless there is evidence tending 
 to prove the facts on which the instruction is based; Kunst v. Graf ton, 67 W. Va. 
 27, 26 L.R.A.(N.S-) 1205, 67 S. E. 74, holding that instruction covering case not 
 in pleadings, though there be evidence on subject, is error. 
 Reversible error in charge. 
 
 Cited in Kunst v. Grafton, 67 W. Va. 27, 26 L.R.A. ( N.S. ) 1205, 67 S. E. 74, on 
 erroneous instruction as being grounds for reversal unless it clearly appears that 
 the rights of the parties have not been injuriously affected thereby. 
 Control of verdict by special findings. 
 
 Cited in Bess v. Chesapeake & O. R. Co. 35 W. Va. 499, 29 Am. St. Rep. 820, 14 
 S. E. 234, holding inconsistent special findings control general verdict; Gilling- 
 ham v. Ohio River R. Co. 35 W. Va. 601, 14 L. R. A. 803, 29 Am. St. Rep. 827, 14 
 S. E. 243, holding immaterial special finding does not control general verdict; 
 Peninsular Land Transp. & Mfg. Co. v. Franklin Ins. Co. 35 W. Va. 669, 14 S. E. 
 237, holding special interrogatories properly refused if immaterial; Bice v. Wheel- 
 ing Electrical Co 62 W. Va. 695, 59 S. E. 626, on rejection of interrogatory as 
 being an abuse of discretion of court, where affirmative answer thereto would be 
 decisive of case. 
 Interrogatories consistent tvith verdict. 
 
 Cited in Wheeling Bridge Co. v. Wheeling & Bridge Co. 34 W. Va. 170, 11 S 
 E. 1009, sustaining refusal of interrogatories calling for special findings con- 
 sistent with general verdict; Peninsular Land Transp. & Mfg. Co. v. Franklin 
 Ins. Co. 35 W. Va. 669, 14 S. E. 237, holding interrogatories should be pro- 
 pounded if findings would be inconsistent with general verdict; Pennington v 
 Gillaspie, 66 W. Va. 659, 66 S. E. 1009, holding it error to refuse to submit to 
 jury special interrogatory as to how much of verdict was actual and how much 
 exemplary damages. 
 Review of discretion. 
 
 Cited in McKelvey v. Chesapeake & O. R. Co. 35 W. Va. 508, 14 S. E. 261, hold- 
 ing court's discretion in submitting interrogatories reviewable. 
 Joining incompatible prayers for relief. 
 
 Cited in Matliews v. Tyree, 53 W. Va. 301, 44 S. E. 526, holding probate can- 
 not be affirmed in suit to construe will, to which heirs, as devisees, are parties: 
 Ward v. Brown, 53 W. Va. 232, 44 S. E. 488. holding alleged invalidity of be- 
 quest does not affect legatee's right to appeal from decree declaring will void; 
 Day v. National Mut. Bldg. & L. Asso. 53 W. Va. 554, 44 S. E. 779, holding 
 borrower from building association cannot include in bill to have his stock de- 
 clared void a demand for appointment of receiver in interests of shareholders; 
 Childers v. Milam, 68 W. Va. 505, 70 S. E. 118, holding that establishment of 
 probate of another paper cannot be sought in suit to impeach probate of will. 
 
 Cited in note (129 Am. St. Rep. 91) on construction of will in issue of devisavit 
 vel non. 
 Xewspaper comment. 
 
 Cited in Copeland v. Wabash R. Co. 175 Mo. 683, 75 S. W. 106, holding read- 
 ing by jurors,, pending trial of negligence case, of newspaper account of former 
 trial no ground for reversal. 
 
 2 L. R. A. 680, PITTSBURG, W. & K. R. CO. v. BENWOOD IRON WORKS, 31 
 
 W. Va. 710, 8 S. E. 453. 
 Km i urn t domain. 
 Cited in Great Western Natural Gas & Oil Co. v. Hawkins, 30 Ind. App. 567 r 
 
2 L.R.A. 680] L. R. A. CASES AS AUTHORITIES. 366 
 
 136 N. E. 765, holding gas company cannot condemn land for pipe line without 
 showing it is furnishing gas for public use; F. B. R. Cemetery Asso. v. Redd, 
 33 W. Va. 265, 10 S. E. 405, holding application to condemn land for cemetery 
 must distinctly state that it is needed for public use; Board of Health v. Van 
 Hoesen, 87 Mich. 539, 14 L. R. A. 116, also footnote p. 114, 49 N. W. 894, which 
 holds power of eminent domain not conferrable on rural cemetery corporation; 
 New Orleans Terminal Co. v. Teller, 113 La. 744, 37 So 624, 2 A. & E. Ann. Cas. 
 127, holding the defendant in expropriation proceedings may always raise the 
 question of whether the purpose for which his property is sought is public in 
 nature; Hench v. Pritt, 62 W. Va. 277, 125 Am. St. Rep. 966, 57 S. E. 808, holding 
 a legislative act attempting to confer upon the lessees of timber land the right 
 of eminent domain to be exercised in procuring a right of way for their private 
 -benefit is unconstitutional and void; Miocene Ditch Co. v. Lyng, 70 C. C. A. 458, 
 138 Fed. 546, holding a complaint to condemn a right of way for a water pipe 
 line was insufficient where no clear, positive statement that the property 
 sought to be condemned was necessary for a public use; Elkins Electric R. Co. v. 
 Western Maryland R Co. 163 Fed. 732, holding one railroad company could 
 not cross the road of another company or at any point without its consent or com- 
 pensation. 
 
 Cited in notes (4 L. R. A. 785, 789, 792) on right- of eminent domain; (7 L. 
 R. A. 152) on exercise of right of eminent domain a political, not a judicial, 
 question; (3 L. R. A. 176) on title to land taken for public use; (11 L. R. A. 
 286) on constitutional protection of property rights; (22 L.R.A.(X.S-) 3, 51, 12], 
 133) on judicial power over eminent domain; (22 Am. St. Rep. 49) on eminent 
 domain. 
 What constitutes "public nse." 
 
 Cited in Kyle v. Texas & W. 0. R. Co. 3 Tex. App. Civ. Cas. (Willson) 525, 4 
 L.R.A. 279, denying railroad's right to condemn land for spur track running to 
 private mills and wharves; Riley v. Louisville, H. & St. L. R. Co. ]42 Ky. 69, 35 
 L.R.A. (N.S.) 638, 133 S. W. 971, holding that railroad spur to distillery is for 
 public use, where railroad intends to project it farther and to provide shipping 
 facilities for public at highway crossing; Pere Marquette R. Co. v. United States 
 Gypsum Co. 154 Mich. 299, 22 L.R.A. (N.S.) 181, 117 N. W. 733, holding proceed- 
 ings to condemn land for a side track did not show a sufficient public necessity 
 where it appeared it was meant to accommodate the mill of a single individual 
 who by agreement was to bear the expense of the proceedings; Helena Power 
 Transmission Co. v. Spratt, 35 Mont. 123, 8 L.R.A. (N.S.) 570, 88 Pac. 773, 10 
 A. & E. Ann. Cas. 1055, holding the flooding of land by a dam erected to supply 
 power to mines and smelters and the public generally was a public use author- 
 izing the condemnation of the land; Caretta R. Co. v. Virginia Pocahontas Coal 
 Co. 62 W. Va. 188, 57 S. E. 401, on legislative authority to declare a use public 
 in nature; Cozard v. Kanawha Hardwood Co. 139 N. C. 291, 1 L.R.A. (N.S.) 974, 
 111 Am. St. Rep. 779, 51 S. E. 932, on determination of what may constitute 
 a, public use. 
 
 Annotation cited in Zircle v. Southern R. Co. 102 Va. 22, 102 Am. St. Rep. 
 805, 45 S. E. 802, as having called attention to a conflict of authorities, on 
 hranch railroads as a public use. 
 
 'Cited in footnotes to Re Barre Water Co. 9 L. R. A. 195, which holds run- 
 ning of motors for light manufacturing not a public purpose for which water 
 of stream may be appropriated ; Bridal Veil Lumbering Co. v. Johnson, 34 L. 
 R. A. 368, which sustains right of railroad built through timbered region for 
 few miles to sawmill to exercise of eminent domain; Paxton v. H. Irrigating 
 Canal & Land Co. v. Farmers' & M. Irrig. & Land Co. 29 L. R. A. 853, which 
 
367 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 691 
 
 holds condemnation of land for irrigating ditches to be "for" public purpose; 
 Wisconsin Water Co. v. Winans, 20 L. R. A. 6G2, which denies water-supply 
 company's right to condemn land for pipe line; Healy Lumber Co. v. Morris, 03 
 L.R.A. 82], which denies right to condemn land for transportation to market of 
 logs of private owner. 
 
 Cited in notes (20 L.R.A. 438) on power to condemn right of way for rail- 
 road sidings to private establishments; (14 L. R. A. 480) on public purposes 
 for which money may be appropriated or raised by taxation; (22 L.R.A.(X.S.) 
 183, 184, 185) on power to condemn right of way for track to private establish- 
 ment; (35 L.R.A (N.S.) 649) on constitutionality of statute conferring eminent 
 domain in other than railroad for spur or lateral track; (88 Am. St. Rep. 935) 
 on existence of public use as question for courts; (102 Am. St. Rep. 824) on uses 
 for which power of eminent domain cannot be exercised. 
 
 Distinguished in Chicago & X. W. R. Co. v. Morehouse, 112 Wis. 7, 56 L. R. 
 A. 243, 88 Am. St. Rep. 918, 87 N. W. 849, sustaining railroad's right, under 
 statute, to condemn land for spur track to single industry, open to all desiring 
 service. 
 
 Disapproved in Ulmer v. Lime Rock R. Co. 98 Me. 590, 57 Atl. 1001, sustaining 
 railroad's right to condemn land for branch track to lime quarry. 
 Appeal in condemnation proceedings. 
 
 Cited in Wheeling Bridge & T. R. Co. v. Wheeling Steel & I. Co. 41 W. Va. 
 752, 24 S. E. 651, holding writ of error to interlocutory order in condemnation 
 proceedings, that applicant has right to take property upon paying compen- 
 sation improperly allowed; Bluefield v. Bailey, 62 W. Va. 306, 57 S. E. 805, holding 
 a proceeding to condemn land for a public use is such a controversy concerning 
 the title of land as to give jurisdiction for a writ of error. 
 Private corporation**, -what are. 
 
 Cited in State v. Peel Splint Coal Co. 36 W. Va. 845, 17 L. R. A. 399, 15 S. 
 E. 1000, by English, J., dissenting, who holds coal mining company a private 
 corporation. 
 Power of railroad to bnlld branches. 
 
 Cited in Arrington v. Savannah & W. R. Co. 95 Ala. 437, 11 So 7, holding the 
 mployment of a contractor to grade a branch line is valid under an act au- 
 thorizing road to "build, construct and operate branch roads from any point or 
 points on its line." 
 
 Cited in note (12 L.R.A.(X.S.) 327) on what is within charter power to build 
 lateral railroad. 
 
 2 L. R. A. 691, McCOULL v. MAXCHESTER, 85 Va. 579, 8 S. E. 379. 
 Duty to keep streets in safe condition. 
 
 Cited in notes (10 L. R. A. 737) as to duty of city to keep streets in safe 
 condition; (8 L. R. A. 829, 10 L. R. A. 474) on obstruction of street for build- 
 ing purposes; (3 L.R.A.(X.S.) 387) on duty of municipality to guard building 
 material in street; (19 L.R.A.(XS.) 508; 20 L.R.A.(N.S.) 539, 672) on liability 
 of municipality for defects or obstructions in streets. 
 
 Distinguished in Mitchel v. Richmond, 107 Va. 199, 11 L.R.A.(N.S.) 1117, 57 S. 
 E. 570, 12 A. & E. Ann. Cas. 1015, holding a pedestrian leaving side walks because 
 -of their muddy condition and walking in the gutter could not recover for in- 
 juries received by falling in a sewer opening of which he should have known. 
 
2 L.R.A. 694] L. R. A. CASES AS AUTHORITIES. 368 
 
 2 L. R. A. 694, LOUISVILLE & N. R. Co. v. BALLARD, 88 Ky. 159, 10 S. W. 
 
 429. 
 Punitive damag-es for discharging passenger at wrong station. 
 
 Cited in Memphis & C. Packet Co. v. Nagel, 97 Ky. 15, 29 S. W. 743, holding- 
 carrier liable in punitive damages for insulting and wrongfully taking pas- 
 senger past her destination; Louisville & N R. Co. v. Summers, 133 Ky. 690 r 
 118 S. W. 926, holding a passenger put off at the wrong station could not recover 
 punitive damage because of the insulting conduct of the agent where it appeared 
 that all he said was "You get off here. Come on, you get off here;" Harlan 
 v. Wabash R. Co. 117 Mo. App. 541, 94 S. W. 737, holding plaintiff was entitled 
 to recover exemplary damages where the evidence showed he was wilfully and 
 intentionally carried beyond his destination. 
 
 Cited in note (17 L.R.A.(N.S.) 1229, 1231) on exemplary damages for carrying 
 passenger beyond destination. 
 For default of carrier or transmitter in general. 
 
 Cited in Barnes v. Western U. Teleg. Co. 27 Nev. 446, 65 L.R.A. 671, 103 Am. 
 St. Rep. 776, 76 Pac. 931, 1 A. & E. Ann. Cas. 346, holding a recovery might 
 be had for the mental anguish and distress caused by defendants' negligence ire 
 failing to deliver a telegram. 
 
 Cited in footnote to Gillespie v. Brooklyn Heights R. Co. 66 L.R.A, 618, which 
 holds street car company not absolved from liability for malicious act of con- 
 ductor in calling passenger a deadbeat when asked for change due her. 
 
 Cited in notes (28 Am. St. Rep. 882; 37 L. ed. U. S. 98) on liability of railroad 
 or other corporation for punitive or exemplary damages. 
 Instructions as to. 
 
 Cited in Yazoo & M. R. Co. v. Williams, 87 Miss. 359, 39 So. 489, holding an 
 instruction in an action against a carrier for assault that jury might assess puni- 
 tive damages in such sum as they might "see fit" was not erroneous; Louisville 
 & N. R. Co. v. Scott, 141 Ky. 545, 34 L.R.A. (KS.) 210 133 S. W. 800, holding in- 
 stmction as to punitive damages for ejection of passengers erroneous, where they 
 were ejected without unnecessary force and without abuse. 
 Duty of carrier to passengers. 
 
 Cited in Illinois C. R. Co. v. Winslow, 119 Ky. 882, 84 S. W. 1175, on duty of 
 carrier to protect its passengers from violence or insult. 
 
 Cited in note (5 Eng. Rul Cas. 430) on carrier's duty to carry passenger to 
 destination within schedule time. 
 
 2 L. R. A. 695, SMETHURST v. INDEPENDENT CONG. CHURCH, 148 Mass. 
 
 261, 12 Am. St. Rep. 550, 19 N. E. 387. 
 Use of highway by adjoining owner. 
 
 Cited in Morris v. Whipple, 183 Mass. 29, 66 N. E. 199, raising without 
 deciding, question whether carpet and canopy across sidewalk to street is a 
 reasonable use by adjoining owner. 
 Negligence as to falling ice or snow or other flying objects. 
 
 Cited in Shepard v. Creamer, 160 Mass. 498, 36 N. E. 475, holding it negli- 
 gence to maintain building so constructed that snow or ice is liable to fall 
 upon travelers; Cork v. Blossom, 162 Mass. 333, 26 L. R. A. 258, 44 Am. St. 
 Rep. 362, 38 N. E. 495, holding one liable for injury due to fall of high 
 chimney in a not unusual gale; Manning v. West End Street R. Co. 166 ]\l;i-~. 
 231, 44 N. E. 135, holding one momentarily stopping on street not negligent if 
 struck by switch stick flying from hands of car conductor; Cavanagh v. Black, 
 192 Mass. 65, 6 L.R.A.(N.S.) 311, 116 Am. St. Rep. 220, 77 N. E. 1027, holding 
 
369 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. i;;i.-, 
 
 the owner of a building abutting on a private way used in common by several 
 abutting owners was liable where one of the occupants was injured by the falling 
 of an accumulation of snow and ice. 
 
 Cited in footnote to Davis v. Niagara Falls Tower Co. 57 L. R. A. 545, which 
 sustains right to injunction against maintaining tower so that ice forming on 
 it falls on adjoining property. 
 
 Cited in note (12 L. R. A. 322) on duty as essential element of negligence; 
 (12 L. R. A. 190) as to liability of owner for injury caused by materials fall- 
 ing into street. 
 
 Distinguished in Waller v. Ross, 100 Minn. 11, 12 L.R.A.(X.S.) 727, 117 Am. 
 St. Rep. 661, 110 X. W. 252, 10 A. & E. Ann. Cas. 715, holding the doctrine of "res 
 ipsa loquitur" was to be applied in determining the liability for injury to a trav- 
 eller in the highway by the falling of an awning. 
 Proximate cause. 
 
 Cited in McCauley v. Xorcross, 155 Mass. 587, 30 X. E. 464, holding leaving 
 beams where they might fall on some one below proximate cause of injury, 
 although careless person toppled them over; Wolf v. Des Moines Elevator Co. 126 
 Iowa, 663, 98 N. W. 301, holding plaintiff could recover for injuries received 
 where his team at time on a traveled way took fright at the noise from de- 
 fendant's gasoline engine and ran away; Fishburn v. Burlington & X. W. R. Co. 
 127 Iowa, 497, 103 X. W. 481, holding defendant railroad company was liable 
 for injuries to plaintiff's child caused by the falling of a snow fence placed on 
 plaintiff's premises, after it had once fallen and plaintiff's children had replaced 
 it; Noe v. Rapid Railway Co. 133 Mich. 162, 94 X. W. 743 (dissenting opinion), 
 on the question of proximate cause. 
 
 Cited in footnotes to Schumaker v. St. Paul & D. R. Co. 12 L. R. A. 257, 
 which hold master's neglect to furnish transportation proximate cause of injury 
 in walking to find shelter; McClain v. Garden Grove, 12 L. R. A. 482, which 
 holds narrowness of bridge and insufficiency of railings not proximate cause of 
 injury from horse falling on account of disease or choking; Vallo v. Unite-.! 
 States Exp. Co. 14 L. R. A. 743, which holds throwing trunk from delivery 
 wagon in highway proximate cause of traveler falling over another trunk; 
 Herr v. Lebanon, 16 L. R. A. 106, which holds want of barrier not proximate 
 cause of omnibus going over wall, horse attempting to rise; Southwestern Teleg. 
 & Teleph. Co. v. Robinson, 16 L. R. A. 545, which holds telephone company liable 
 for injury by electricity generated by thunder storm in low hanging telephone 
 wire: Kieffer v. Hummelstown, 17 L. R. A. 217, which holds borough not liable 
 for injury to one thrown on stone pile on roadside by fall of horse, due to 
 struggles of other horse frightened by shooting; McKenna v. Baessler, 17 L. 
 R. A. 310, which holds original tire proximate cause of destruction of property 
 by back fire; Gibney v. State, 19 L. R. A. 365, which holds unsafe bridge cause 
 of drowning of father trying to save child falling into water through defect; 
 Chicago, St. P. M. & O. R. Co. v. Elliott, 20 L. R. A. 582, as to proximate cause 
 of injury to shipper while stepping from stock car to caboose; Mueller v. Mil- 
 waukee Street R. Co. 21 L. R. A. 721, which holds sudden stopping of street 
 car in front of funeral procession cause of injury to first carriage by pole of 
 second; Wood v. Pennsylvania R. Co. 35 L. R. A. 199, which holds failure to 
 give warning of approach of train not proximate cause of injury to one struck 
 by body of other person hit by train. 
 
 Cited in notes (12 L. R. A. 280, 17 L. R. A. 38) as to proximate cause of 
 injury: (45 L. R. A. 87) on rule of proximate cause in malicious torts; (7 L. 
 R, A. 132. 13 L. R. A. 733) as to proximate and remote cause of injury; (12 
 R. A. 283) as to concurrent or co-operative cause of injury; (8 L. R. A. 85} 
 L.Pv.A. An. Vol. I. 24. 
 
2 L.R.A. 695] L. R. A. CASES AS AUTHORITIES. 370 
 
 as to effect produced by intervening cause; (8 L. R. A. 82) as to liability for 
 consequential injuries due to negligent act. 
 Rights of traveler. 
 
 Cited in Nead v. Roscoe Lumber Co. 54 App. Div. 622, 66 N. Y. Supp. 419, 
 liolding one run into while tightening canvas cover to his cart a traveler. 
 
 Cited in note (10 L. R. A. 737) as to who is protected as traveler. 
 Nature of rejected testimony. 
 
 Cited in Com. v. Smith, 163 Mass. 429, 40 N. E. 189, and Shinners v. Locks 
 & Canals, 154 Mass. 169, 12 L. R. A. 557, 26 Am. St. Rep. 226, 28 N. E. 10, 
 holding exclusion of testimony not reviewable unless bill of exceptions shows 
 its nature; Boykin v. State, 40 Fla. 492, 24 So. 141, holding exclusion of testi- 
 mony not reviewable unless its nature is indicated by the question or an offer 
 made. 
 Liability of charitable institution. 
 
 Cited in Farrigan v. Pevear, 193 Mass. 149, 7 L.R.A.(N.S.) 482, 118 Am. St. 
 Rep. 484, 78 N. E. 855, 8 A. & E. Ann. Gas. 1109, holding a home maintained for 
 indigent boys without compensation for the advantages offered constituted a valid 
 public charity; Hordern v. Salvation Army, 199 N. Y. 236, 32 L.R.A. (N.S.) 65, 
 139 Am. St. Rep. 889, 92 N. E. 626, holding salvation army liable for injury to 
 mechanic repairing boiler, through defective condition of runway from door in 
 boiler room. 
 
 2 L. R. A. 697, STARRATT v. MULLEN, 148 Mass. 570, 20 N. E. 178. 
 Evidence disproving fact or contract alleged. 
 
 Cited in Lansky v. West End Street R. Co. 173 Mass. 20, 53 N. E. 129, holding 
 defendant's proof that injury happened at place other than alleged does not 
 make new case plaintiff entitled to meet; Frost v. Sumner, 149 Mass. 100, 21 
 N. E. 231, holding evidence of agreement to accept legacy in payment of services 
 sued for admissible; Stewart v. Thayer, 170 Mass. 562, 49 N. E. 1020, holding 
 defendant, to disprove contract alleged, may show he made different one; Cargill 
 v. Atwood, 18 R. I. 308, 27 Atl. 214, holding defendant may show goods 
 charged to him were furnished in payment of debt due him. 
 Burden of proof. 
 
 Cited in Hunting v. Downer, 151 Mass. 278, 23 N. E. 832, to point that plain- 
 tiff must show that note sued on was given for loan as alleged; Johnson v. 
 Kimball, 172 Mass. 401, 52 N. E. 386, holding plaintiff must show that money 
 paid and services rendered were furnished as consideration for a legal obliga- 
 tion; Milliken v. Randall, 89 Me. 207, 36 Atl. 75, holding plaintiff must show 
 performance of agreement to care for ice until shipment, in action for purchase 
 price; Johnson v. Wanamaker, 17 Pa. Super. Ct. 306, holding plaintiff in 
 quantum meruit must show facts from which law will infer promise to pay; 
 Wylie v. Marinofsky, 201 Mass. 584, 88 N. E. 448, holding burden of proof not 
 shifted to defendant in replevin by the introduction of evidence under a general 
 denial of title in defendant by purchase from plaintiff's husband and authorized 
 by her; Javierre v. Central Altagracia, 217 U S. 508, 54 L. ed. 861, 30 Sup. Ct. 
 Rep. 598, holding that persons seeking to escape from contract on ground of con- 
 dition subsequent embodied in proviso are charged with burden of proving that 
 facts of condition had come to pass. 
 
 Cited in note (16 Am. St. Rep. 440) on burden of proof. 
 Defenses provable under general denial. 
 
 Cited in Vallancey v. Hunt, 20 X. D. 584, 34 L.R.A. (N.S.) 477, 129 N. W. 455, 
 holding that in action by mortgagee to recover chattels mortgaged defense of 
 
371 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 699 
 
 breach of warrant of chattels sold must be specially pleaded and cannot be 
 proved under general denial, 
 l.o.-i ii as payment. 
 
 Cited in Board of Assessors v. New York L. Ins Co. 216 U. S. 522, 54 L. ed. 
 601, 30 Sup. Ct. Rep. 385, on loan by insurance company to policy holder, repre- 
 sented by note, but charged against reserve value of policy, as payment. 
 
 2 L. R. A. 698, DELANO v. BRUERTOM, 148 Mass. 619, 20 N. E. 308. 
 t iiheritance by adopted child. 
 
 Cited in Fiske v. Pratt, 157 Mass. 84, 31 N. E. 715, to point that adopted 
 son in absence of will, inherits the estate; Stearns v. Allen, 183 Mass. 410, 97 
 Am. St. Rep. 441, 67 N. E. 349, holding adopted daughter inherits as sister, 
 from son of one of adopting parents; Van Derlyn v. Mack, 137 Mich. 152, 66 
 L.R.A. 439, 109 Am. St. Rep. 669, 100 N. W. 278, 4 A. & B. Ann. Cas. 879, holding 
 an adopted child by becoming the heir of the person adopting does not become the 
 heir of kindred of such person; Burnes v Burnes, 132 Fed. 490, on adopted child 
 as having the right to inherit from both his natural and adopting parents. 
 
 Cited in footnote to Van Matre v. Sankey, 23 L. R. A. 665, which authorizes 
 descent of land to child adopted in other state. 
 
 Cited in note (17 L. R. A. 436) as to effect of adoption on relationship to 
 others; (39 Am. St. Rep. 225; 109 Am. St. Rep. 676; 118 Am. St. Rep. 687) on 
 right of adopted children to inherit. 
 
 Distinguished in Re Reel, 33 Fittsb. L. J. N. S. 130, holding adopted grand- 
 child may share in adopting father's estate as child and grandchild; Heidecamp 
 v. Jersey City, H. & P. Street R. Co. 69 N. J. L. 287, 55 Atl. 239, holding the next 
 of kin of an adopted child are the next of kin by blood and not the adopting 
 parents 
 
 2 L. R. A. 699, MANUFACTURERS NAT. BANK v. CONTINENTAL BANK, 
 
 148 Mass. 553, 12 Am. St. Rep. 598, 20 N. E. 193. 
 Bnnk credits. 
 
 Cited in Beal v. Somerville, 17 L. R. A. 295, 1 C. C. A. 601, 5 U. S. App. 14, 
 50 Fed. 650, holding bank bailee of checks deposited, although immediately 
 credited to depositor and bank; National Bank of Commerce v. Johnson, 6 N. 
 D. 185, 69 N. W. 49, holding indorsement for credit creates, on collection, 
 relation of creditor and debtor between depositor and bank; Fifth Nat. Bank 
 v. Armstrong, 40 Fed. 49, holding title to uncollected paper before provisional 
 credit is drawn against depends on intent. 
 
 Distinguished in Franklin County Nat. Bank v. Beal, 49 Fed. 607, holding 
 collecting and forwarding banks debtor and creditor after collection and credit 
 of amount. 
 Indorsement "for acconnt of." , 
 
 Cited in People's Bank v. Jefferson County Sav. Bank, 106 Ala. 534, 54 Am. 
 St. Rep. 59, 17 So. 728, holding indorsement "for account of" gives notice of 
 ownership in indorser. 
 Indorsement "for collection." 
 
 Cited in First Nat. Bank v. Armstrong, 42 Fed. 197; Citizens' Nat. Bank v. 
 City Nat. Bank, 111 Iowa, 215, 82 N. W. 464: National Bank of Commerce v. 
 Johnson, 6 N. D. 184, 69 N. W. 49, holding indorsement for collection passes 
 no title; Bank of Clarke County v. Oilman, 81 Hun, 491, 30 N. Y. Supp. 1111, 
 holding paper, until paid, remains the property of the owner, who indorses it 
 /or collection: Freeman's Nat. Bank v. National Tube Works Co. 151 Mass. 417, 
 
2 L.R.A. 699] L. R. A. CASES AS AUTHORITIES. 372 
 
 8 L. R. A. 46, 21 Am. St. Rep. 461, 24 N. K. 779. holding owner after indorsement 
 for collection may control paper until paid, and intercept proceeds in hands of 
 intermediate agent; State ex rel. North Carolina Corp. Commission v. Merchant's 
 & F. Bank, 137 X. C. 701, 50 S. E. 308, 2 A. & E. Ann. Cas. 537, holding a trans- 
 action by which the drawee of a draft sent to a bank for collection gives the 
 bank a check on his deposit therein for the amount of the draft amounts to a 
 payment thereof where bank has money on hand to pay it. 
 
 Cited in footnotes to Tyson v. Western Nat. Bank, 23 L. R. A. 161, which 
 holds title does not pass by "indorsing for collection;" Corn Exchange Bank v. 
 Farmers' Nat. Bank, 7 L. R. A. 559, which holds only first of several banks 
 receiving check for collection agent of payee. 
 
 Cited in notes (7 L. R. A. 845) as to receiving paper for collection; (4 L. 
 R.A. 422) as to agency of bank receiving paper for collection; (77 Am. St. Rep. 
 628) on duties of banks acting as collecting agents: (86 Am. St. Rep. 785. 789, 
 790, 791) on title of bank to money deposited with or collected by it; (3 Eng. 
 Rul. Cas. 778) on liability of bank for money received by correspondent bank. 
 Insolvency. 
 
 Cited in Exchange Bank v. Sutton Bank, 78 Md. 586, 23 L. R. A. 176, 28 Atl. 
 563, holding insolvent concern cannot make transfer of credit ; Nash v. Second 
 Nat. Bank, 67 N. J. L. 267, 51 Atl. 727, holding insolvency terminates agency 
 of bank to collect; Stevenson v. Fidelity Bank, 113 N. C. 488, 18 S. E. 695, 
 holding collecting bank cannot, after forwarding bank's assignment, credit lat- 
 ter with proceeds; Bruiier v. First Nat. Bank. 97 Tenn. 540, 34 L. R. A. 53o, 
 37 S. W. 286, holding depositor in insolvent bank may recover sums collected 
 and credited to it after its failure; Commercial Nat. Bank v. Armstrong, 148 
 U. S. 57, 37 L. ed. 366, 13 Sup. Ct. Rep. 533, holding receiver of insolvent bank 
 liable for proceeds of paper indorsed to it for collection and received by him. 
 
 Cited in footnotes to Armstrong v. Boyertown Nat. Bank, 9 L. R. A. 553, 
 which denies right of receiver or creditors of bank crediting owner with draft 
 received for collection to demand proceeds from collecting bank; First Nat. 
 Bank v. Payne, 3 L. R. A. 284, which holds partner of insolvent banking firm 
 cannot pay checks received from collecting bank by charging to drawers and 
 crediting to latter bank; Garrison v. Union Trust Co. 70 L.R.A. 6] 5. which holds 
 rule that bank making collection is entitled to lien on proceeds to balance account 
 with correspondent as against title of original transmitting bank not changed by 
 fact that bank to which draft was sent by correspondent for collection was in- 
 solvent when receiving notice of collection from third bank to which draft was 
 forwarded for collection and credit. 
 
 Cited in notes (7 L. R. A. 859) as to effect of insolvency of collecting bank; 
 (25 L. R. A. 547) as to preference by insolvent bank because of trust character 
 of deposit; (2 L. R. A. 482) as to following trust fund in the hands of third 
 person; (32 L. R. A. 717) as to trust in proceeds of collection made by insol- 
 vent bank; (86 Am. St. Rep. 798, 799) on right to recover money deposited with 
 or collected by bank upon its insolvency. 
 Acceptance of check. 
 
 Cited in footnote to Pickle v. People's Nat. Bank, 7 L. R. A. 93, which holds 
 acceptance of check necessary to give right of action against bank. 
 Application of money due depositor. 
 
 Cited in footnote to Grissom v. Commercial Nat. Bank, 3 L. R. A. 273, which 
 holds bank has no right to pay to third party note made by depositor. 
 
 Cited in note (4 L. R. A. Ill) as to application of money due depositor. 
 
373 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 701 
 
 2 L. R. A. 701, STATE ex rel. DAVIDSON v. GORHAM, 40 Minn. 232, 41 N 
 
 W. 948. 
 Constitutionality of inheritance tax. 
 
 Cited in Xeilson v. Russell, 76 N. J. L. 35, 69 Atl 476, holding that inheritance 
 tax on stock of state corporation passing by will of nonresident is not tax on 
 property but on devolution of property. 
 
 Cited in footnote to Ferry v. Campbell, 50 L. R. A. 92, which holds succes- 
 sion tax void for want of notice of proceedings to fix amount of tax. 
 
 Cited in notes (127 Am. St. Rep. 1044; 33 L.R.A.(N.S.) 601) on constitutionality 
 of succession taxes. 
 Uniformity of taxation. 
 
 Cited in Drew v. Tifft, 79 Minn. 182, 47 L. R. A. 527, 79 Am. St. Rep. 446, 
 81 N. W. 839, holding constitutional provision requiring equality of taxation 
 applies to inheritance tax; State ex rel. Sanderson v. Mann, 76 Wis. 480, 45 
 X. \V. 526, holding tax on estates of stated value or over, in counties having 
 more than given population, invalid for want of uniformity; Cook County v. Fair- 
 banks, 222 111. 585, 78 N. E. 895 ; State ex rel. Nettleton v. Case, 39 Wash. 182, 
 1 L.R.A.(N.S.) 156, 109 Am. St. Rep. 874, 81 Pac. 554, holding a scale of fees 
 to be paid the clerk of the court based upon the valuation of the estate, upon 
 filing papers in probate, is a charge in nature of a tax and unconstitutional be- 
 cause not uniform; Hauser v. Miller, 37 Mont. 26, 94 Pac. 197, holding a statute 
 calling for collection of graduated fees from petitioners filing letters of adminis- 
 tration regulated by value of the estate is void. 
 
 Cited in footnotes to Drew v. Tifft, 47 L. R. A. 525, which requires uniformity 
 and equal application in exemption from inheritance tax; State ex rel. Garth 
 v. ISwitzler, 40 L. R. A. 280. which holds succession tax at different rates on 
 legacies of different amounts invalid; Billings v. People, 59 L. R. A. 807, which 
 sustains transfer tax on lineal descendants to whom life estate given with re 
 mainder to lineal descendants, but exempting lineal descendants taking fee; 
 Be Swift, 18 L. R. A. 709, as to what is subject to succession tax. 
 
 Distinguished in Drew v. Tifft, 79 Minn. 183, 47 L. R. A. 527, 79 Am. St. 
 Rep. 446, 81 N. W. 839, holding principal case not authority for or against 
 right to levy inheritance tax; State ex rel. Foot v. Bazille, 97 Minn. 18, 6 L.R.A. 
 (X.S.) 738, 106 N. W. 93, 7 A. & E. Ann. Cas. 1056, holding under amended Con- 
 stitution the equality mandate has no application to inheritance taxation. 
 
 Disapproved, in effect, in Knowlton v. More, 178 U. S. 58, 44 L. ed. 976, 20 
 Sup. Ct. Rep. 747, 9 Pa. Dist. R. 309, holding greater privilege of taxation 
 exists as to state inheritance taxes than as to tax on property; Magoun v. 
 Illinois Trust & Sav. Bank, 170 U. S. 291, 292, 42 L. ed. 1042, 18 Sup. Ct. Rep. 
 594, holding inheritance tax based on classification of legatees and devisees, 
 and value of estate transmitted, not in conflict with United States Constitu- 
 tion ; State v. Alston, 94 Tenu. 684, 28 L. R. A. 181, 30 S. W. 750, holding inher- 
 itance tax making descrimination betwen direct descendants and collateral 
 heirs and strangers not unconstitutional; Union Trust Co. v. Wayne Probate 
 Judge, 125 Mich. 493, 84 X. W. 1101, holding inheritance tax is tax on privilege, 
 and not subject to constitutional provision requiring uniformity; Thompson v. 
 Kiddi-r, 74 X. H. 97, 05 Atl. 392, 12 A. & E. Ann. Cas. 948, holding a tax upon 
 collateral legacies and successions is not in conflict with the Constitution. 
 Recovery of probate tax paid county treasurer. 
 
 Cited in Mcarkle v. liennepin County, 44 Minn. 547, 47 N. W. 165, holding 
 tax paid under void statute to secure probate of will may be recovered back; 
 Rand v. Hennepin County, 50 Minn. 392, 52 N. W. 901, holding, payment canaot 
 
2 L.R.A. 701] L. R. A. CASES AS AUTHORITIES. 374 
 
 be recovered back unless made under compulsion; De Graft' v. Ramsey County, 
 46 Minn. 320, 48 N. W. 1135, holding under facts, payment of tax was volun- 
 tary, and could not be recovered back. 
 
 2 L. R. A. 703, PEXXEGAR v. STATE, 87 Tenn. 244, 10 Am. St. Rep. 648, 
 
 10 S. W. 305. 
 Validity of murria&es prohibited by local lavr. 
 
 Referred to in Mcllvain v Scheibley, 109 Ky. 460, 59 S. W. 498, by stipula- 
 tion of the parties as an authority on evasion of the local marriage laws by a 
 marriage outside of state. 
 
 Cited in Stull's Estate, 183 Pa. 625, 39 L. R. A. 542, 63 Am. St. Rep. 776, 
 39 Atl. 16, holding intended evasion of local law may be ground for declaring 
 marriage performed in another state invalid; McLennan v. McLennan, 31 Or. 
 486, 38 L. R. A. 864, 65 Am. St. Rep. 835, 50 Pac. 802, holding marriage by 
 divorced resident of Oregon, in another state, within time for taking appeal, 
 which is prohibited by laws of Oregon, is void; State use of Newman v. Kim- 
 brough (Tenn. Ch. App.) 52 L. R. A. 670, 59 S. W. 1061, holding marriage be- 
 tween divorced man and paramour in another state, contrary to local law, 
 invalid, although intention to evade statute not shown; State v. Tutty, 41 Fed. 
 760, 7 L. R. A. 53, holding marriage of white person with negro, prohibited by 
 law of Georgia, is invalid in that state, although good where contracted; Re 
 Wilbur, 8 Wash. 37, 40 Am. St. Rep. 886, 35 Pac. 407, holding marriage of white 
 man with Indian woman on reservation, contrary to statute of Washington, 
 void in that state; Lando v. Lando, 112 Minn 262, 30 L.R.A.(X.S.) 944, 127 X. W. 
 1125, holding that marriage regular where solemnized is valid everywhere; Lan- 
 ham v. Lanham, 136 Wis. 368, 17 L.R.A.(X.S.) 807, 128 Am. St. Rep. 10S5, 117 
 X. \V. 787, holding a law prohibiting remarriage by divorcee within a year after 
 the decree rendered such a marriage invalid where contracted outside of state to 
 avoid such law; State v. Fenn, 47 Wash. 564, 17 L.R.A.(X.S.) 803, 92 Pac. 417; 
 Sturgis v. Sturgis, 51 Or. 16, 15 L.R.A.(X.S-) 1037, 131 Am. St. Rep. 724, 93 Pac. 
 696, on the refusal to recognize the validity of a marriage performed outside of 
 state where contrary to the laws of nature or the local laws; Schofield v. Schofield, 
 20 Pa Dist. R. 807, 59 Pittsb. L. J. 569, holding that marriage between first 
 cousins outside state to avoid statute prohibiting such marriage is valid; State v. 
 Xakashima, 62 Wash. 689, 114 Pac. 894, holding marriage between first cousin* 
 incestuous. 
 
 Cited in footnotes to Jackson v. Jackson, 34 L. R. A. 773, which sustains mar- 
 riage valid in other state where contracted; Re Stull, 39 L. R. A. 539, which 
 holds invalid marriage between man and paramour in other state to avoid laws- 
 of domicil; Norman v. Norman, 42 L. R. A. 343, which holds marriage on high 
 seas, by parties leaving land to evade laws of residence, invalid. 
 
 Cited in notes ( 57 L. R. A. 161, 162, 166, 169) on conflict of laws as to valid- 
 ity of marriage; (24 L. R. A. 834) on effect of statutes forbidding remarriage of 
 guilty party after divorce upon remarriage in another state; (60 Am. St. Rep. 
 945) on validity of foreign marriage in violation of laws of place where parties 
 reside^ (79 Am. St. Rep. 365, 366) on what marriages are void; (124 Am. St. Rep. 
 106) on validity of common law marriages; (5 Eng. Rul. Cas. 830) on law govern- 
 ing validity of marriage. 
 
 Distinguished in Jackson v. Jackson, 82 Md. 30, 34 L. R. A. 775, 33 Atl. 31 7, 
 holding marriage valid where contracted, will be recognized in another state, 
 if not in contravention of declared policy of state; Re Chace, 26 R. I. 355, 69 
 L.R.A. 494, 58 Atl. 978, 3 A. & E. Ann. Cas. 1050, where marriage of a person. 
 
375 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 709" 
 
 under guardianship in another state declared valid although contracted without 
 the consent of guardian as required by the laws of this state. 
 
 Disapproved, in effect, in State v. Shattuck, 69 Vt. 403, 40 L. R. A. 429, 60 
 Am. St. Rep. 936, 38 Atl. 81, holding intended evasion of local law not suffi- 
 cient to invalidate marriage good where celebrated, unless statute expressly so 
 provides. 
 Evidence of marriage. 
 
 Cited in Jackson v. Jackson, 82 Md. 30, 34 L. R. A. 775, 33 Atl. 317, holding 
 proof of marriage in another state by general reputation only, sufficient, in 
 absence of*local statute to contrary. 
 
 2 L. R. A. 708, ROWE v. FOGLE, 88 Ky. 105, 10 S. W. 426. 
 Attorney's lien on land. 
 
 Cited in Keehn v. Keehn, 115 Iowa, 471, 88 N. W. 957, holding attorney's 
 lien did not attach at common law to land in controversy; Holmes v. Waymire, 73 
 Kan. 106, 84 Pac. 558, 9 A. & E. Ann. Cas. 624, holding the lien of an attorney 
 for compensation does not extend to land which is the subject-matter of the 
 litigation. 
 
 Cited in footnote to Loofbourow v. Hicks, 55 L. R. A. 874, holding attorneys.' 
 fees allowed by judgment on foreclosure of mortgage is lien on land. 
 On property in hands of adverse party. 
 
 Cited in Sheedy v. McMurtry, 44 Neb. 503, 63 N. W. 21, on when attorney is 
 entitled to lien on property in hands of adverse party. 
 Settlement by parties to action as affecting; rights of attorneys. 
 
 Cited in Nielsen v. Albert Lea, 91 Minn. 391, 98 N. W. 195, denying the motion 
 of attorneys of parties to an action for leave to continue the action where the 
 parties arrived at a settlement in good faith without the consent of their 
 attorneys. 
 
 Cited in notes (51 Am St. Rep. 276; 93 Am. St. Rep. 172) on right of litigant 
 to settle or compromise cause in which he has appeared by attorney. 
 
 2 L. R. A. 709, LINDLEY v. FIRST NAT. BANK, 76 Iowa, 629, 14 Am. St. Rep. 
 
 254, 41 N. W. 381. 
 
 A'ariance between agreement for acceptance of bill and demand for per- 
 formance. 
 
 Cited in Tansey v. Peterson, 88 Iowa, 548, 55 N. W. 577, holding agreement to 
 "indorse draft as heretofore" does not require indorsement of draft bearing 
 interest; Garrettson v. North Atchison Bank, 47 Fed. 870, holding bank agree- 
 ing to accept check for stated sum cannot refuse payment because check pre- 
 sented concludes with words "with exchange;" State Bank v. Citizens' Nat. 
 Bank, 114 Mo. App. 669, 90 S. W. 123, holding an acceptance of a draft for a 
 specified sum is not an acceptance of a draft for that sum with exchange. 
 
 Cited in notes (7 L. R. A. 209) on acceptance of bill of exchange or draft; 
 (23 L.R.A. 836) on liability of bank as accommodation indorser; (4 Eng. Rul. Cas. 
 242) on acceptance of bill of exchange by telegram. 
 
 Distinguished in State Bank v. American Hardwood Lumber Co. 121 Mo. App. 
 335, 98 S. W. 786, holding a bank refusing to honor a draft for a specific sum 
 "with exchange which agreed to accept a draft for an amount five dollars less, 
 v.as liable on a draft for such an amount with exchange." 
 Adniissibility of evidence of cnstom or nsagre. 
 
 Cited in McKee v. Wild, 52 Neb. 14, 71 N. W. 958, holding custom relied on 
 to prove meaning other than ordinary significance of words used in contract 
 
2 L.R.A. 709] L. R. A. CASES AS AUTHORITIES. 376 
 
 must "be pleaded; Lewis v. Met calf, 53 Kan. 227, 36 Pac. 345, holding local 
 usage in stock market, of placing money to credit of shipper, must be pleaded in 
 action to recover proceeds of shipment; Eller v. Loomis, 106 Iowa, 280, 76 
 N. W. 686, holding custom of bricklayers to build their own scaffolds not avail- 
 able in action for injury from fall of scaffold unless pleaded; Sherwood v. Home 
 Sav. Bank, 131 Iowa, 530, 109 N. W. 9, holding a local custom to be admissible 
 as part of a contract must be pleaded. 
 
 Cited in note (13 L. R. A. 440) on admissibility of evidence of custom to 
 vary written contract. 
 
 2 L. R. A. 711, STEWART v. GORTER, 70 Md. 242, 16 Atl. 644. 
 Redemption of leases. 
 
 Cited in Swan v. Kemp, 97 Md. 689, 55 Atl. 441, holding statute permitting 
 lessee for more than fifteen years to redeem lease applies to lease of improved 
 land; Buckler v. Safe Deposit & T. Co. 115 Md. 228, 80 Atl. 899, upholding acts 
 providing for redemption of leases. 
 Validity of renewal clauses In leases. 
 
 Cited in Tennessee Coal, Iron & R. Co. v. Pratt Consol. Coal Co. 156 Ala. 449, 
 47 So. 337, holding where statute provides that no leasehold can be created for 
 a longer period than twenty years a provision in a lease for such period that 
 lessee might continue the lease for another such period is invalid. 
 
 2 L. R. A. 712, ANDERSON v. EAST, 117 Ind. 126, 10 Am. St. Rep. 35, 19 N. 
 
 E. 726. 
 Municipal corporation, liability for i\ roim t'ul acts of officers. 
 
 Cited in Vaughtman v. Waterloo, 14 Ind. App. 652, 43 N. E. 476, and Monti- 
 cello v. Fox, 3 Ind. App. 488, 28 N. E. 1025, holding city liable for omission or 
 negligent performance of ministerial duty, but not for failure to exercise dis- 
 cretionary powers; Funke v. St. Louis, 122 Mo. 140, 26 S. W. 1034, holding city 
 not liable for damage to land resulting from acceptance and approval of plat 
 of adjoining property; Laurel v. Blue, 1 Ind. App. 131, 27 N. E. 301, holding 
 city not liable for illegal arrest by marshal without warrant, and under void 
 ordinance; Simpson v. Whatcom, 33 Wash. 405, 63 L. R. A. 820, 99 Am. St. Rep. 
 951, 74 Pac. 577, denying municipality's liability for arrest and prosecution 
 of person under invalid ordinance; Aschoff v. Evansville, 34 Ind. App. 31, 72 N. E. 
 279, on municipal corporations as being liable for the results of negligence in the 
 performance of ministerial functions; Simpson v. Whatcom. 33 Wash. 405, (J3 
 L.R.A. 820, 99 Am. St. Rep. 951, 74 Pac. 577, holding a person who has been prose- 
 cuted and convicted by city officers for violation of an invalid city ordinance can- 
 not maintain action against city for damages. 
 
 Cited in footnotes to Snider v. St. Paul, 18 L. R. A. 151, which holds city not 
 liable for negligence of agents in providing and maintaining city hall; Howard 
 v. Worcester, 12 L. R. A. 160, which holds city not liable for negligence in 
 blasting for schoolhouse; Culver v. Streator, 6 L. R. A. 270, which holds city 
 liable for negligence of employee enforcing ordinance against unmuzzled dogs 
 running at large. 
 
 Cited in notes (9 L. R. A. 209, 210) on nonliability of municipal corporations 
 for acts or omissions of officers or agents; (19 L. R. A. 454) on distinction 
 between public and private functions of municipal corporations in respect to 
 liability for negligence; (5 L. R. A. 254) on liability of municipal corporations 
 for injuries from defective streets, bridges, etc.; (44 L. R. A. 801) on liability 
 of municipal corporations for false imprisonment and unlawful arrest; (12 Am. 
 -"St. Rep. 753) on municipal liability for negligence; (30 Am. St. Rep 378, 379, 
 
377 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 715 
 
 38o) on liability of cities for negligence and other misconduct of tfficers and 
 
 agents. 
 
 Duty required in care of streets. 
 
 Cited in Udkin v. New Haven, 80 Conn. 295, 14 L.R.A.(N.S.) 870, 68 Atl. 253, 
 holding defendant city was not liable for injury to plaintiff by falling on icy 
 sidewalk where the water ran onto sidewalk from an areaway where it had col- 
 lected from a broken lead pipe on a building; Temby v. Ishpeming, 140 Mich. 151, 
 69 L.R.A. 621, 112 Am. St. Rep 392, 103 N. W. 588, holding a city was not liable 
 for injuries resulting from the defective condition of a bill board erected on a 
 space between sidewalk and building, such space being under the control of the 
 owner of the building. 
 
 Cited in notes (103 Am. St. Rep. 260, 263) on municipal liability to persons 
 injured by defects in, or want of repair of, streets; (108 Am. St. Rep. 139, 151, 
 153) as to what municipal corporations are answerable for injuries due to de- 
 fects in streets and other public places. 
 
 Owner of fulling' wall liable for injury. 
 
 Cited in Ainsworth v. Lakin, 180 Mass. 400, 57 L. R. A. 135, 91 Am. St. 
 Rep. 314, 62 N. E. 746, holding owner liable for injury from fall of wall of 
 burned building. 
 
 Cited in footnotes to Dettmering v. English, 48 L. R. A. 106, which holds 
 person constructing wall liable for failure to use due care to prevent its fall; 
 Cork v. Bio^om, 26 L. R. A. 256, which holds one maintaining high chimney 
 liable for fall on adjoining building. 
 
 Cited in notes (34 L. R. A. 558) on liability of owner or occupant for falling 
 wall; (5 L.R.A. 795) on damages for injury caused by defective premises; (123 
 Am. St. Rep. 569) on duty and liability of landowners to adjoining proprietors, 
 as to walls standing after fire.' 
 Allegations as to negligence. 
 
 Cited in Gulf, C. & S. F. R. Co. v. Washington, 49 Fed. 349, and Lafayette 
 v. Ashby, 8 Ind. App. 218, 34 N. E. 238, holding general averment of negligence 
 sufficient to withstand demurrer; Jones v Great Northern R. Co. 12 N. D. 346, 97 
 N. W. 535. holding allegation of negligence in complaint in action for killing 
 stock, that defendant "negligently, carelessly, and wrongfully struck and killed 
 the same" was sufficient. 
 
 Cited in note (59 L. R. A. 218) on sufficiency of general allegations of negli- 
 gence. 
 As to freedom from contributory negligence. 
 
 Cited in Pennsylvania Co. v. Horton, 132 Ind. 192, 31 N. E. 45, holding gen- 
 eral averment sufficient, in absence of motion for more specific statement; Ohio 
 & M. R. Co. v. Levy, 134 Ind. 344, 32 N. E. 815, holding ignorance of excavation 
 into which plaintiff fell need not be pleaded, in action for injury, when alleged 
 plaintiff was without fault. 
 Connection with nnisance essential to Nsbillty. 
 
 Cited in note (32 L.R.A. (X.S.) 892) on connection with or participation itt 
 nuisance essential to responsibility. 
 
 2 L. R. A. 715, DOOLEY v. MONTGOMERY, 72 Tex. 429, 10 S. W. 451. 
 Conveyance of community property. 
 
 Cited in Stiles v. Japhet, 84 Tex. 95, 19 S. W. 450, holding husband may 
 vey community property without wife's joining in deed. 
 
 Cited in note (21 Am. St. Rep. 43) on separate and community property. 
 
.2 L.R.A. 715] L. R. A. CASES AS AUTHORITIES. 378 
 
 2 L. R. A. 716, RICHARDSON v. LOUISVILLE & N. R. CO. 85 Ala. 559, 5 So. 
 
 308. 
 Action by husband for loss of wife's or children's baggage. 
 
 Cited in Battle v. Columbia, N. & L. R, Co. 70 S. C. 343, 49 S E. 849, holding 
 a husband might maintain an action against a railroad for the loss of wearing 
 apparel of wife and children in the possession of carrier as baggage. 
 
 Cited in note (1 L.R.A. (N.S.) 354) on recovery by parent for loss of personal 
 effects of infant paying no fare. 
 Title of husband to wife's apparel. 
 
 Cited in note (11 L.R.A. (N.S.) 389) on right of man to dispose of ornaments 
 -and apparel purchased for wife's use. 
 
 2 L. R. A. 717, FRENCH v. WILLER, 126 111. 611, 9 Am. St. Rep. 651, 18 N. 
 
 E. 811. 
 Confession of judgment on -warrant of attorney. 
 
 Cited in notes (13 L. R. A. 796) on conclusiveness of judgments confessed on 
 warrants of attorney; (40 L. R. A. (N. S. ) 957) on validity at common law of 
 warrant of attorney to confess judgment. 
 Statutory rights and remedies. 
 
 Cited in Fitzgerald v. Quinn, 165 111. 360, 46 N. E. 287, holding statutory 
 jurisdictional facts must exist, and statutory procedure be followed, to sus- 
 tain forcible entry and detainer action; Fay v. Seator, 88 111. App. 421, holding 
 appeal statutes must be strictly complied with. 
 
 Cited in notes (120 Am St. Rep. 52; 127 Am. St. Rep. 91) on obviation of ne- 
 cessity for demand of rent by stipulation in lease. 
 
 2 L. R. A. 721, PEOPLE v. ARMSTRONG, 73 Mich. 288, 16 Am. St. Rep. 578 ; 
 
 41 N. W. 275. 
 Test of reasonableness in determining validity of ordinance. 
 
 Cited in People v. Wagner, 86 Mich. 600, 13 L. R. A. 289, 24 Am. St. Rep. 
 141, 49 N. W. 609, holding bread ordinance clearly authorized by charter not 
 subjectable to test of reasonableness; Re Smith, 143 Cal. 373, 77 Pac. 180, 
 holding conditions and circumstances may be considered in determining whether 
 ordinance is a valid exercise of police power; Grand Rapids v. Powers, 89 Mich. 
 114, 14 L. R. A. 507, 28 Am. St. Rep. 276, 50 N. W. 661, holding legislature 
 cannot infringe individual rights by authorizing municipality to declare that 
 a purpresture or nuisance is not so in fact; Bennett v. Pulaski (Tenn. Ch. 
 App.) 47 L.R.A. 281, 52 S. W. 913, holding ordinance regulating saloon screens 
 and admission and egress of persons during certain hours void for unreasonable- 
 ness; Indianapolis Abattoir Co. v. Neidlinger, 174 Ind. 408, 92 N. E. 169, holding 
 invalid ordinance requiring use of safety devices on elevators; Re Junqua, 10 
 Cal. App. 606, 103 Pac. 159, holding an ordinance making it unlawful for any 
 person to permit any soot to escape from the smokestack of any furnace within 
 the city in which crude oil is consumed as fuel is not unreasonable or oppressive 
 on its face; Weadock v. Recorder's Ct. Judge, 156 Mich. 381, 132 Am. St. Rep. 527, 
 120 N. W. 991, 16 A. & E. Ann. Gas. 720, holding an ordinance prescribing a cer- 
 tain restricted district in which no junk business shall be established is void ae 
 unreasonable where it excepts junkshop already established; Parker, W. & Co. v. 
 Austin, 156 Mich. 581, 23 L.R.A.(N.S.) 270, 121 N. W. 322, holding charter au- 
 thorizing the regulation of weights and measures to be sealed by city sealer so as 
 to conform to standard weights and measures does not authorize an ordinance 
 requiring the city sealer to determine the accuracy of computing devices on scales 
 of merchants; Fulton v. Norteman, 60 W. Va. 573, 9 L.R.A. (N.S.) 202, 5i> S. E. 
 
379 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 734 
 
 658, holding an ordinance is unlawful and unreasonable which forbids the bring- 
 ing of dead bodies of animals into town for manufacture into fertilizer but not 
 making it unlawful to manufacture fertilizer within the town. 
 
 Cited in footnotes to Simrall v. Covington, 9 L. R. A. 556, which holds 
 ordinance requiring license from agents representing nonresident insurance com- 
 panies only, void; Kosciusko v. Slomberg, 12 L. R. A. 528, which holds or- 
 dinance restricting importation of second-hand clothing in absence of epidemic 
 void; Beiling v. Evansville, 35 L. R. A. 272, which refuses to hold void ordinance 
 prohibiting maintenance of slaughterhouse within city when authorized by 
 statute; Slaughter v. O'Berry, 48 L. R. A. 442, which holds void ordinance that 
 city may provide materials and do work of making sewer connections to within 
 3 feet of building; Philadelphia v. Brabender, 58 L. R. A. 220, which sustains 
 ordinance against casting advertisements, etc., into vestibules of dwellings; Com. 
 v. Boston Advertising Co. 69 L.R.A. 817, which holds forbidding use of land near 
 park or parkway for advertising purposes a taking thereof for public use. 
 
 Cited in notes (6 L.R.A. 268) on powers of municipalities to be exercised im- 
 partially; (70 L.R.A 851) on power of municipality to compel change of. grade 
 of railway in street; (104 Am. St. Rep. 643, 645) on municipal regulations of 
 street railways for protection of public; (107 Am. St. Rep. 249) on passing or 
 casting of handbills or circulars as public nuisance. 
 
 Distinguished in People v. Baker, 115 Mich. 200, 73 N. W. 115, upholding 
 ordinance requiring hawkers and peddlers to pay weekly license fee of $5; 
 Grand Rapids v. Braudy, 105 Mich. 678, 32 L. R. A. 121, 55 Am. St. Rep. 472, 64 
 X. W. 29, upholding ordinance providing for licensing pawnbrokers, junk and 
 secondhand dealers; Wettengel v. Denver, 20 Colo. 555, 39 Pac. 343, upholding 
 ordinance prohibiting distribution of hand bills etc., tending to litter streets 
 and frighten horses; Philadelphia v. Brabender, 201 Pa. 577, 58 L. R. A. 221, 
 51 Atl. 374, Affirming 17 Pa. Super. Ct. 337, upholding ordinance forbidding 
 casting hand bills etc., upon streets and in vestibules of houses. 
 Partial invalidity of ordinance. 
 
 Cited in St. Ignace v. Snyder, 75 Mich. 652, 42 N. W. 1130, holding defend- 
 ant can only complain of invalidity of ordinance as to particular part under 
 which he was convicted; Johnson v. Bessemer, 143 Mich. 314, 106 N. W. 852, 
 on the invalidity of part of ordinance as not affecting the enforcement of the 
 remainder. 
 Construction of ordinances in favor of validity. 
 
 Cited in Swan v, Indianola, 142 Iowa, 740, 121 X. W. 547, on courts as being 
 slow to condemn ordinances passed pursuant to statute expressly authorizing 
 them. 
 
 2 L. R. A. 724, DOE ex dem. HITCH v. PATTEN, 8 Houst. (Del.) 334, 16 Atl. 
 
 558. 
 
 2 L. R. A. 734, CONSTANT v. UNIVERSITY OF ROCHESTER, 111 N. Y. 604, 
 7 Am. St. Rep. 769, 19 N. E. 631. 
 
 Second appeal in 133 N. Y. 641, 4 Silv Ct. App. 285, 31 N. E. 26 which reversed 
 28 Jones S. 89, 17 N. Y. Supp. 363. 
 Mortjt'ziBees for value. 
 
 Cited in note (13 L. R. A. 390) on chattel mortgage, novation. 
 When ag-ent's knowledge immutable *o principal. 
 
 Cited in Slattny v. Schwannecke, 118 N. Y. 548, 23 N. E. 922, holding mort- 
 gagee not chargeable with knowledge of attorneys conducting foreclosure, of 
 unrecorded deed, not shown to have been then in attorneys' minds; McCutcheon 
 
2 L.R.A. 734] L. R. A. CASES AS AUTHORITIES. 380 
 
 v. Dittman, 164 N. Y. 357, 58 N. E. 97, holding attaching creditor, purchasing 
 collateral at sale conducted by his attorney acted for lender, chargeable with 
 attorneys' knowledge of want of due notice to debtor; Melms v. Pabst Brewing 
 Co. 93 Wis. 167, 57 Am. St. Rep. 899, 66 N. W. 518, holding attorneys' knowledge 
 of invalidity of sale by interested executor, gained while acting for parties, not 
 imputable to client subsequently buying land; Equitable (Securities Co. v. Shep- 
 pard, 78 Miss. 234, 28 So. 842, holding knowledge acquired by attorney six 
 years before, not shown to have been in mind when conducting client's business 
 not imputable to client; Sweeney v. Pratt, 70 Conn. 282, 66 Am. St. Rep. 101, 
 39 Atl. 182, holding knowledge gained by attorney in client's business imputable 
 to client; Brinkerhoff v. Sartwell, 85 Hun, 560, 33 N. Y. Supp. 162, holding 
 agent's knowledge of corporation's condition at time of selling stock imputable 
 to vendor; German American Mut. Life Asso. v. Farley, 102 Ga. 740, 2D '6. E. 
 615, holding agent's knowledge of facts material to risk, gained before employ- 
 ment, present in mind when effecting insurance, imputable to insurer; Re 
 Plankington Bank, 87 Wis. 383, 58 N. W. 784, holding bank not chargeable with 
 knowledge of ownership of funds deposited by president to private account ; 
 George v. Butler, 16 Utah, 116, 50 Pac. 1032, holding husband's knowledge of 
 prior lien gained shortly before lending wife's money on mortgage, imputable 
 to wife; Anderson v. Hernandez, 8 Misc. 644, 29 N. Y. Supp. 1027, holding 
 knowledge gained by agents in investigating property imputable to purchaser ; 
 Anderson v. Blood, 86 Hun, 251, 33 N. Y. Supp. 233 (dissenting opinion) 
 majority holding knowledge of suspicious circumstances, coming to agent at 
 moment of closing sale, not imputable to purchaser; Crooks v. People's Nat. 
 Bank, 72 App. Div. 338, 76 N. Y. Supp. 92 (dissenting opinion), majority hold- 
 ing bank chargeable with knowledge of intent of president, acting for it and. 
 for his insolvent firm, to give preference; Corney v. Harris, 133 App. Div. 689 r 
 318 X. Y. Supp. 244, on when principal is chargeable with knowledge of agent; 
 Gaspard v. Fourteenth Street Store, 143 App. Div. 405, 128 N. Y. Supp. 53, hold- 
 ing seller chargeable with notice of lack of authority of buyer's agent to pur- 
 chase without confirmation by principal, if seller's agent had in mind such lack 
 of authority ascertained while acting for another principal. 
 
 Cited in footnotes to Birmingham Trust & Sav. Co. v. Louisiana Xat. Bank. 
 20 L. R. A. 600, which holds cashier's notice imputable to savings company:, 
 Wittenbrock v. Parker, 24 L. R. A. 197, which holds knowledge by one member 
 of firm of lawyers while transacting firm business imputed to other members. 
 
 Cited in notes (24 Am St. Rep. 230; 57 Am. St. Rep. 917; 21 Eng. Rul. Cas.. 
 844, 847) on imputing to principal notice to solicitor or agent. 
 
 Distinguished in Bienenstok v. Ammidown, 155 X. Y. 59, 49 N. E. 321. 
 Reversing 11 Misc. 82, 32 X. Y. Supp. 1138, holding partner's knowledge of 
 fraud committed by him in individual transaction not imputable to his firm.. 
 with which proceeds were deposited: Scott v. Scott, 2 App. Div. 243, 38 X. V. 
 Supp. 613, holding principal chargeable with agent's knowledge 'of want of 
 consideration, acquired in purchasing note; Wiegmann v. Morinmra, 12 Mi.-c. 
 39, 33 N. Y. Supp. 39, holding notice to attorney of rights of third persons in 
 property sold under attachment not imputable to client receiving proceeds. 
 Burden of showing 1 agent'** knowledge chargeable to principal. 
 
 Cited in Sergent v. Liverpool & L. & G. Ins. Co. 66 App. Div. 51, 73 X. Y. Supp. 
 120, holding burden of proof is on one seeking to charge insurer with agent's- 
 knowledge, acquired before employment ; Denton v. Ontario County Xat. Bank, 
 150 X. Y. 137, 44 X. E. 781, holding burden of proof is on person seeking to 
 charge client with knowledge of attorney, gained in another transaction; Badger 
 v. Cook, 117 App. Div. 331, 101 N. Y. Supp. 1067; Mathews v. Damainville, 100* 
 
L. R. A. CASES AS AUTHORITIES. [2 L.K.A. 743 
 
 App. Div. 314, 91 X. Y. Supp. 524, holding to bind a client with knowledge ob- 
 tained by his attorney in another transaction not relating to client's business 
 the burden is upon the person charging. 
 Poasession as notice of rights in real property. 
 
 Cited in footnotes to Brinser v. Anderson, L. R. A. 205, which holds pur- 
 chaser required to inquire into rights of possessor, though he knows of lease 
 to him; Rock Island & P. R. Co. v. Dimick, 19 L. R. A. 105, which holds open 
 and exclusive possession of passageway through railroad embankment notice of 
 rights to purchaser of railroad; Gibson v. Thomas, 70 L.R.A. 768, which holds 
 -unrecorded release of portion of property covered by mortgage by holder to mort- 
 gagor not binding on subsequent assignee of mortgage without notice, though 
 property released is in possession of purchaser. 
 
 Cited in note (8 L. R. A. 211, 212) on title to land; construction notice by 
 possession. 
 Release of security as consideration. 
 
 Cited in note (33 L.R.A.(N.S.) 61) on release of security for old debt as valu- 
 able consideration. 
 
 -2 L. R. A. 741, STULL v. HARRIS, 51 Ark. 294, 11 S. W. 104. 
 
 Action for assignment of dower by appellant's widow, in Stull v. Graham, 60 
 Ark. 468, 31 S. W. 46. 
 Statute of limitations. 
 
 Cited in Fox v. Drewry, 62 Ark. 319, 35 S. W. 533, holding married women's 
 -act does not, by implication, repeal saving clause in their favor in statute of 
 limitations. 
 Disn lliriiinnee of infant's contracts. 
 
 Cited in Tobin v. Spann, 85 Ark. 560, 16 L.R.A.(X.S.) 674, 109 S. W. 534. hold- 
 ing a minor executing a deed with representations that he was of full age is not 
 estopped from disaffirming such contract on reaching majority; Muskogee Devel- 
 opment Co. v. Green, 22 Okla. 243, 97 Pac. 619; Beauchamp v. Bertig. 90 Ark. 362, 
 ^23 L.R.A.(XS.) 663, 119 S. W. 75, on right of infant to disaffirm contract on 
 reaching majority.- 
 
 Cited in note (18 Am. St. Rep. 677, 679) on disaffirmance of contracts of infants. 
 Ketnrn of consideration as prerequisite of rescinding transfer of title. 
 
 Cited in State v. Morgan, 52 Ark. 157, 12 S. W. 243, holding state, to recover 
 iitle to land in possession of citizen under void patent, must return consider- 
 ation; McKinney v. McCullar, 95 Ark. 168, 128 S. W. 1043, holding minor, never 
 receiving from guardian sum paid on exchange of lands, not bound to return 
 such sum; Blakemore v. Johnson, 24 Okla. 555, 103 Pac. 554, holding that minor 
 -need not offer to restore consideration for land, where it never reached her hands. 
 
 Cited in notes (26 L.R.A. 183) on necessity of returning consideration in order 
 to disaffirm infants' contracts; (18 Am. St Rp. 689, 692) on infants obligation 
 to restore consideration on disaffirmance. 
 Xote as payment. 
 
 Cited in Griffin v. Long. 96 Ark. 272, 35 L.R.A.(X.S-) 857, 131 S. W. 672, Ann. 
 Cas. 1012 B, 622, holding that execution of note in renewal of previous note or 
 debt is not payment, unless there is express agreement to that effect. 
 
 -2 L. R. A. 743, DEM1XG v. DARLING, 148 Mass. 504, 20 N. E. 107. 
 Opinions, and estimates, and representations, as basin for action fo* 
 deceit. 
 
 Cited in Lilienthal v. Suffolk Brewing Co. 154 Mass. 188, 12 L. R. A. 823, 
 
2 L.R.A. 743] L. K. A. CASES AS AUTHORITIES. 382 
 
 26 Am. St. Rep. 234, 28 X. E. 151, holding seller's statement as to market value, 
 to experienced dealer in article sold, not actionable; Burns v. Dockray, 156 
 Mass. 137, 30 N. E. 551, holding false statement, absolutely made, that title 
 to real estate was good, deceiving buyer, actionable; Lynch v. Murphy, 171 
 Mass. 308, 50 N. E. 623, holding representations largely of future value, of 
 stock as an investment not actionable; People's Sav. Bank v. James, 178 M;\s>. 
 325, 59 N. E. 807, holding false representations as to means and ability to raise 
 money, inducing transfer of property, not actionable against execution-sale 
 purchaser; Handy v. Waldron, 18 R. I. 570, 49 Am. St. Rep. 794, 29 Atl. 143, 
 holding false and fraudulent warranty of value of bonds and stocks, deceiving 
 purchaser, actionable; Mosher v. Post, 89 VVis. 605, 62 N. W. 516, holding false 
 statement of value of goods by seller not actionable; Ansley v. Bank of Pied- 
 mont, 113 Ala. 479, 59 Am. St. Rep. 122, 21 So. 59, holding mere representations 
 as to present pecuniary value of lot not actionable; Andrews v. Jackson, 168 
 Mass. 269, 37 L. R. A. 403, 60 Am. St. R*p. 390, 47 X. E. 412, holding false 
 representations as to value of notes, deceiving vendor of land, actionable; Vegerer 
 v. Jordan, 10 Cal. App. 365, 101 Pac. 1066, holding a representation that mining 
 stock solrt was of "great value" was too indefinite to be actionable; Gaar v. 
 Halverson, 128 Iowa, 604, 105 X. W 108, holding representations by an agent 
 that an engine had been rebuilt, was practically as good as new and was of 
 sufficient power to drive defendant's threshing machine could not be made the 
 basis of an action of fraud; Kimber v. Young, 70 C. C. A. 178, 137 Fed. 749, 
 holding allegations of defendant that he knew bonds to be good and that they 
 would he paid at maturity would not sustain an action for deceit; Pittsburg 
 Life & T. Co. v. Xorthern Cent. L. Ins. Co. 140 Fed. 896, holding a representation 
 as to the value of accounts that they were ''better than ordinary" would not 
 sustain an action of deceit; J. H. Clark Co. v. Rice, 127 Wis. 405, 106 X. W 231 r 
 7 A. & E. Ann. Cas. 505, on mere expressions of opinion as the basis of an action- 
 for fraud. 
 
 Cited in notes (15 L. R. A. 795) on effect of representing things sold to be 
 "good;" (35 L. R. A. 426) on expression of opinion as fraud; (37 L. R. A. 610) 
 on right to rely upon representations made to effect contract as a basis for a 
 charge of fraud; (12 Am. St. Rep. 37) on false representations; (12 Eng. Rul, 
 Cas. 297) on what constitutes fraiid and liability therefor. 
 
 Distinguished in Roberts v. French, 153 Mass. "63, 10 L. R. A. 657, 25 Am. St. 
 Rep. 611, 26 N. E. 416, holding false representations as to measurement of land r 
 deceiving buyer, actionable. 
 Requisites of action for deceit. 
 
 Cited in Ruohs v. Third Xat. Bank, 94 Tenn. 74, 28 S. W. 303, holding right 
 of action for deceit may be lost by laches. 
 
 Cited in footnote to Xash v. Minnesota Title Ins. & T. Co. 28 L. R. A. 753^ 
 which requires intent to deceive to sustain action for false representations 
 inducing execution of contract. 
 
 Cited in notes (6 L. R. A. 149, 151) on right of action for deceit. 
 
 2 L R. A. 745, CAVERLY v. ROBBIXS, 149 Mass. 16, 20 X. E. 450. 
 
 2 L. R. A. 746, REPUBLIC IROX MIX. CO. v. JOXES, 37 Fed. 721. 
 
 Suit by asuisrnee in Federal court on ground of diverse citizenship. 
 
 Cited in footnote to Wonderly v. Lafayette County, 45 L. R. A. 386, which- 
 sustains suit in state court, to set aside Federal judgment obtained by fraudu- 
 lent pretense of diverse citizenship. 
 
 Cited in note (12 L. R. A. 682) on suits by assignee of choses in action. 
 
383 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 75$ 
 
 2 L. R. A. 749. FRADLKY v. HYLAXD, 37 Fed. 49. 
 Principal')* liability for agent's acts. 
 
 Cited in notes (2 L. R. A. 810) on liability of principal for acts of agent; (2> 
 L. R. A. 811) as to when principle as to liability applied; (2 L. R. A. 824) on 
 private restrictions on agent's authority as Affecting third persons; (2 Eng. Rul. 
 Cas 483) on right of one dealing with agent to hold undisclosed principal. 
 Election between agent and undisclosed principal. 
 
 Cited in Berry v. Chase, 77 C. C. A. 161, 146 Fed. 626, on necessity that person- 
 dealing with agent elect between agent and undisclosed principal for a satisfaction 
 of claims. 
 
 2 L. R. A. 751, BRADY v. NEW YORK, 112 N. Y. 480, 20 N. E. 390. 
 Effect of delivery of architect's certificate. 
 
 Cited in footnote to Arnold v. Bournique, 20 L. R. A. 493. which holds con- 
 tractor entitled to payment on delivery of architect's certificate handed back 
 without presentation to owner. 
 Review by courts of discretion vested In administrative officer*. 
 
 Cited in Holly v. Xew York City, 128 App. Div. 502, 112 X. Y. Supp. 707 r 
 on courts as not generally interfering with the discretion of municipal officers ir 
 letting a contract: 
 
 2 L. R. A. 753. M A XX IX v. PURCELL, 46 Ohio St. 102, 19 N. E. 572. 
 Petition in error. 
 
 Cited in Wade v. Kimberley, 5 Ohio C. C. 35. holding filing of petition in error 
 properly styled a proceeding. 
 Trusts. 
 
 Cited in Dillenbeck v. Pinnell, 121 Iowa, 203, 96 X. W. 860, holding no trust 
 exists in favor of heir in proceeds of property sold by devisee for life; Redkey 
 v. Worthington, 13 Ohio C. C. N. S. 180, 32 Ohio C. C. 56, holding that written 
 transfer of money to trustee to distribute on donor's death to designated bene- 
 ficiaries is valid declaration of trust 
 Vagueness and uncertainty of. 
 
 Cited in O'Xeal v. Caul field, 5 Ohio N. P. 151, holding bequests to charity will 
 be upheld if objects intended can be ascertained. 
 Gifts for religions and charitable purposes. 
 
 Cited in notes (32 L. R. A. 626) on validity of gift to unincorporated charity; 
 (5 L. R. A. 107) on bill for construction of will and for directions to trustee. 
 Evidence to establish a trnst. 
 
 Cited in Vance v. Park. 15 Ohio C. C. 716. holding parol evidence admissible- 
 to establish trust as to deed absolute on its face; De Lacroix v. Eid Concrete 
 Steel Co. 8 Ohio N. P. X T . S. 504, 19 Ohio S. & C. P. Dee., 779, holding that evidence 
 to establish a trust must be clear, convincing and conclusive. 
 Public charitable use. 
 
 Cited in Chapman v. Xewell. 146 Iowa, 421. 125 X. W. 324, holding maintaining 
 of public cemetery to be a public use: United Presby. Theological Seminary v- 
 Little, 2 Ohio C. C. X. S. 541, 25 Ohio C. C. 611, holding theological seminary 
 to be a public charity. 
 
 Cited in note (63 Am. St. Rep. 257, 260, 264) on what are charitable uses or 
 trusts. 
 Validity of gift to unincorporated charity. 
 
 Cited in note (32 L.R.A. 626) on validity of gift to unincorporated charity. 
 
2 L.R.A. 753] L. E. A. CASES AS AUTHORITIES. 384 
 
 Creditor's rights in assigned estates. 
 
 Cited in State Nat. Bank v. Esterly, 69 Ohio St. 36, 68 N. E. 582, holding 
 creditor realizing on security after proving claim entitled to dividend only on 
 unpaid balance. 
 Hona flde purchaser for value. 
 
 Cited in Adlard v. Stockstill, 5 Ohio N. P. 489, holding assignee not a bona 
 fide purchaser for value. 
 Advances made by trustee. 
 
 Cited in Woodard v. Wright, 82 Cal. 206, 22 Pac. 1118, holding trustee's right 
 to reimbursement not dependent upon knowledge or consent of cestui que trust. 
 Power to trustee to charge trust estate. 
 
 Cited in note (19 Am. St. Rep. 70, 71) on power of trustee to charge trust prop- 
 erty with reasonable expense of its necessary preservation. 
 Status of church congregations. 
 
 Cited in Miller v. Elder, 7 Ohio C. C. 99, 3 Ohio C D. 682, holding that arch 
 bishop of diocese who holds legal title to church property as trustee, may recover 
 for amount expended for a congregation for property where not a gift; Griggs 
 v. Middaugh, 22 Ohio L. J. 367, 10 Ohio Dec. Reprint, 646, on right to church 
 property where part of a church membership withdraws from it. 
 
 Distinguished in Males v. Murray, 3 Ohio C. C. N. S. 672, 13-23 Ohio C. C. 397, 
 holding that unincorporated church congregation is not such a legal entity as to 
 be liable for a debt created by its members. 
 Recognition of ecclesiastical polity by civil courts. 
 
 Cited in Shepard v. East Orange, 69 N. J. L. 138, 53 Atl 1047, Reversed in 70 
 N. J. L. 207, 57 Atl. 441, on the recognition by civil courts of ecclesiastical polity; 
 Shepard v. East Orange, 70 N. J. L. 207, 57 Atl. 441, refusing to decide whether 
 a Roman Catholic bishop holds as trustee for his diocese. 
 Jurisdiction of equity over religious societes. 
 
 Cited in note (68 Am. St. Rep. 866) on jurisdiction of equity over religious 
 societies. 
 
 2 L. R. A. 766, WESTERN U. TELEG. CO. v. BROWN, 71 Tex. 723, 10 S. W. 323. 
 Recovery for mental distress. 
 
 Cited in Western U. Teleg. Co. v. Ferguson, 157 Ind. 75, 54 L. R. A. 850, 60 
 N. E. 674, holding recovery cannot be had for mental anguish due to delay in de- 
 livering message; Western U. Teleg. Co. v. Wood, 21 L. R. A. 713, 6 C. C. A. 453, 
 13. U. S. App. 317, 57 Fed. 480, holding mental anguish no element in damages 
 for delay in delivering message; Western U. Teleg. Co. v. Wilson, 93 Ala. 35, 30 
 Am. St. Rep. 23, 9 So. 414, holding nominal damages and damages for distress 
 of mind recoverable for delay in delivering message; Chapman v. Western U. 
 Teleg. Co. 88 Ga. 765, 17 L. R. A. 431, 30 Am. St. Rep. 183, 15 S. E. 901, holding 
 sender of message cannot recover for mere pain and anguish of mind caused by 
 nondelivery of message; Western U. Teleg. Co. v. Rogers, 68 Miss. 759, 13 L. R. 
 A. 863, 24 Am. St. Rep. 300, 9 So. 823, holding recovery cannot be had for mental 
 suffering only due to lack of prompt delivery of message; Western U. Teleg. Co. 
 v. Ayers, 131 Ala. 394, 90 Am. St. Rep. 92, 31 So. 78, holding father of dying 
 child cannot recover damages for mental anguish arising from nondelivery of 
 telegram summoning brother-in-law; Western U. Teleg. Co v. Northcutt, 158 
 Ala. 559, 132 Am. St. Rep. 38, 48 So. 553, holding plaintiff could not recover for 
 mental anguish caused by defendant's failure to deliver a telegram where the 
 plaintiff's relationship was not disclosed by the telegram; Helms v. Western 
 U. Teleg. Co. 143 N. C. 388, 8 L.R.A.(N.S.) 251, 118 Am. St. Rep 811, 55 S. E. 
 
385 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 708 
 
 831, 10 A. & E. Ann. Cas. 64, holding plaintiff could not recover for mental an- 
 guish for defendant's failure to deliver a telegram sent by plaintiffs son where 
 the telegram did not disclose the relationship of the parties; Western U. Teleg. 
 Co. v. Chouteau, 28 Okla 686, L.R.A.(N.S.) , 115 Pac. 879, holding that in 
 absence of statute, damages are not recoverable for mental distress alone from 
 negligent delay in delivering telegram; Western U. Teleg. Co. v. Kibble, 53 Tex. 
 Civ. App. 225, 115 S. W. 643, holding damages for mental suffering not recoverable 
 for negligent delay in delivering telegram reading, "Come at once." 
 
 Cited in footnotes to Western U. Teleg. Co. v. North Packing & Provision Co. 
 52 L. R. A. 274, which holds agent purchasing live stock through delay in de- 
 livering telegram not required to resell before communicating with principal, to 
 reduce damages; Chapman v. Western U. Teleg. Co. 17 L. R. A. 430, which denies 
 recovery to person addressed for mental suffering from failure to deliver tele- 
 gram; Wilcox v. Richmond & D. R. Co. 17 L. R. A. 804, which denies recovery 
 for mental anguish from nonperformance of contract; Connell v. Western U. 
 Teleg. Co. 20 L. R. A. 172, which denies recovery for mental distress for failure 
 to 'deliver telegram; International Ocean Teleg. Co. v. Saunders, 21 L. R. A. 
 810, which holds mental suffering not element of damage for failure promptly 
 to deliver telegram; Western U. Teleg. Co. v. Wood, 21 L. R. A. 706, which 
 denies recovery for mental anguish from delay in delivering telegram; McPeek 
 v. Western U. Teleg. Co. 43 L. R. A. 214, which holds loss of reward offered for 
 capture of criminal within damages recoverable for failure to deliver telegram; 
 Western U. Teleg. Co. v. Adams, 6 L. R. A. 844, which holds ignorance of rela- 
 tions between parties to message does not excuse neglect in delivering; Western 
 TJ. Teleg. Co. v. Short, 9 L. R. A. 744, which holds company prima facie liable 
 for failure to deliver telegram; Western U. Teleg. Co. v. Nye & S. Grain Co. 63 
 L.R.A 803, which holds difference in value between market value of corn and 
 the price at which it could have been sold the measure of damages for negligent 
 delay of telegram; Hays v. Western U. Teleg. Co. 67 L.R.A. 481, which holds that 
 change in telegram so as to quote price of mules at ten dollars per head less than 
 market price resulting in sendee's ordering purchase of designated number, ren- 
 ders telegraph company liable for difference between price paid and that stated 
 in telegram. 
 
 Cited in notes (7 L. R. A. 583) on telegraph company; damages for neglect 
 to deliver message; (13 L. R. A. 859, 860) on damages for mental anguish alone 
 not recoverable; (9 L. R. A. 669) on telegraph company; degree of diligence 
 required in delivery of message; (30 L.R.A.(X.S.) 1117, 1142) on right of ad- 
 dressee of telegram to recover for mental suffering from delay in delivery; (10 
 Am. St. Rep. 790) on injury to feelings as element of damages in action against 
 telegraph companies. 
 
 Overruled in Western U. Teleg. Co. v. Carter, 85 Tex. 585, 34 Am. St. Rep. 
 826, 22 S. W. 961, holding relationship of parties named in message not neces- 
 sary to subject company to liability for failure promptly to deliver. 
 Breach of contract. 
 
 Cited in notes (6 L. R. A. 552; 11 L. R. A. 681) on damages for breach of 
 contract; (18 L. R. A. 386) on measure of damages for breach of implied war- 
 ranty. 
 
 2 L. R. A. 768, RE CHAPIN, 148 Mass. 588, 20 N. E. 195. 
 
 Effect of testamentary trust on real estate to emlrace proceeds. 
 
 Cited in Hart v. Allen, 166 Mass. 81, 44 X. E. 116, holding proceeds of sale 
 of real estate subject to terms of testamentary trust; Gardner's Appeal, 81 Conn. 
 L.R.A. An. Vol. I. 25. 
 
2 L.R.A. 768] L. R. A. CASES AS AUTHORITIES. 386 
 
 178, 70 Atl 653, holding that proceeds of land were not equitably regarded as 
 land where derived from exercise of a general power in trustees to sell and where 
 no intent to pass landed interests was contained in the will. 
 Equitable conversion. 
 
 Cited in Staser v. Gaar, S. & Co. 168 Ind. 139, 79 X. E. 404, holding on sale of 
 land in partition proceedings the wife of a cotenant is entitled as against his 
 judgment creditors to the protection of her share of the proceeds by virtue of 
 her dower right. 
 
 2 L. R. A. 769, COOK v. WALLING, 117 Ind. 9, 10 Am. St. Rep. 17, 19 N. E. 532. 
 Married woman's contracts. 
 
 Cited in Voreis v. Nussbaum, 131 Ind. 273, 16 L. R, A. 48, 31 N. E. 70, hold- 
 ing note executed by married woman as surety for husband void in hands of 
 bona fide purchaser; Johnson v. Jouchert, 124 Ind. 107, 8 L. R. A. 796, 24 N. E. 
 580, holding deed by married woman directly to husband void; Ellison v. Bran- 
 strator, 153 Ind. 152, 54 N. E. 433, holding valid a deed of married woman execu- 
 ted through attorney, who omitted husband's name by mistake; Essex v. Meyers, 
 27 Ind. App. 639, 62 N. E. 96, holding specific performance of agreement to sell 
 land by married woman in which her husband did not join not enforceable; 
 Shirk v. Stafford, 31 Ind. App. 250, 67 N. E. 542, holding married woman's in- 
 dividual contract to sell land constitutes no consideration for purchase-money 
 notes; Bundy v. McClarnon, 118 Ind. 166, 20 N. E. 718, stating married woman's 
 deed m which husband not joined void; Starkey v. Starkey, 166 Ind. 146, 76 N. E. 
 876, on necessity that husband join wife in the execution of a mortgage of her 
 separate estate. 
 
 Cited in footnote to Roop v. Real Estate Investment Co. 7 L. R. A. 211, which 
 holds married woman not empowered to bind herself by judgment note. 
 
 Cited in notes (6 L. R. A. 559) on husband and wife; contracts between; 
 (7 L. R. A. 640) on wife's capacity to contract; (8 L. R. A. 795) on mortgage 
 to secure husband's debts; (13 Am. St. Rep. 280) on power of married women to 
 contract. 
 Estoppel. 
 
 Cited in Percifield v. Black, 132 Ind. 386, 31 N. E. 955, holding married woman 
 not estopped from setting up her incapacity to enter into parol contract to con- 
 vey her land; Chaplin v. Baker, 124 Ind. 390, 24 N. E. 233, holding one not mis- 
 led cannot plead estoppel; Long v. Crosson, 119 Ind. 5, 4 L. R. A. 784, 21 N. E. 
 450, holding married woman, with separate real estate transferred to husband 
 to enable him to mortgage, she joining, estopped to deny title; Dudley v. Pigg, 
 149 Ind. 371, 48 N. E. 642, holding strangers to transaction cannot set it up as 
 estoppel; McKinney v. Lanning, 139 Ind. 177, 38 N. E. 601, holding party claim- 
 ing interest in land cannot set up estoppel by recitals in transfer to another to 
 which he was not party or privy; Hickman v. Green, 123 Mo. 177, 29 L. R. A. 
 45, 27 S. W. 440, holding notice of defect in title to agent employed only to ex- 
 change land not binding on married woman; Warner v. Watson, 35 Fla. 421, 17 
 So. 654, holding married woman estopped, against husband's creditors, from set- 
 ting up claim to property acquired with her money, but in husband's name; 
 Indianapolis Brewing Co. v. Behnke, 41 Ind. App 293, 81 N. E. 119, holding a 
 married woman was not estopped as against one conversant with the facts from 
 denying that she was principal in a note to secure husband's debts. 
 
 Cited in footnotes to Hunt v. Reilly, 59 L. R. A. 206, which holds wife's 
 failure to notify purchaser of rights after learning of forgery of her name to 
 husband's deed does not estop her to claim dower; Wilder v. Wilder, 9 L. R. A. 
 97, which holds married woman estopped to claim vendor's Hen by representing 
 
387 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 773 
 
 that one loaning to vendee should have first mortgage ; National Granite Bank v. 
 Tyndalo, 51 L. R. A. 447, which holds relief by way of estoppel not available to 
 holder of married woman's notes against defense that they are void because pay- 
 able to husband, who indorsed them; Grice v. Wood worth, 69 L.R.A. 584, which 
 holds married woman estopped to set up invalidity of contract by her husband 
 and herself to sell homestead for failure to comply with certain conditions after 
 purchaser has paid purchase price, taken possession, and made valuable improve- 
 ments. 
 
 Cited in notes (12 Am. St. Rep. 295) on estoppel;; (57 Am. St. Rep. 169, 175, 
 180, 182) on estoppel of married women. 
 
 2 L. R. A. 770, PEOPLE ex rel. JOHNSON v. EICHELROTH, 78 Cal. 141, 20 
 
 Pac. 364. 
 Regulations as to practice of medicine. 
 
 Cited in footnotes to State v. Pennoyer, 5 L. R. A. 709, which holds void for 
 discrimination act exempting old practitioners and nonresidents from require- 
 ments as to license; State v. Bair, 51 L. R. A. 776, which sustains statute re- 
 quiring examination before state board of examiners, practice in the state for 
 five years, or certificate from medical school, before practising medicine. 
 
 2 L. R. A. 772, PEOPLE ex rel. COMMONWEALTH INS. CO. v. COLEMAN, 112 
 
 N. Y. 565, 20 N. E. 389. 
 Taxation of corporations. 
 
 Cited in People ex rel. Second Ave. R. Co. v. Barker, 72 Hun, 131, 25 N. Y. 
 Supp. 340, and People ex rel. Cornell S. B. Co. v. Dederick, 161 N. Y. 204, 55 
 N. E. 927, holding indebtedness of corporation should be deducted in assessment 
 of personal property. 
 
 Cited in note (58 L. R. A. 613) on practice and procedure of assessors in 
 taxation of capital stock of corporation in United States. 
 
 2 L. R. A. 773, TRACY v. REED, 13 Sawy. 622, 38 Fed. 69. 
 To wliom property assessed. 
 
 Cited in Allen v. Portland, 35 Or. 442, 58 Pac. 509, holding assessment valid 
 if petition for improvement signed by beneficial, though not record, owner; State 
 Trust Co. v. Chehalis County, 24 C. C. A. 588, 48 U. S. App. 190, 79 Fed. 286, 
 holding assessors can assess rails against the apparent owner; Leigh v. Green, 
 62 Neb. 353, 89 Am. St. Rep. 751, 86 N. W. 1093, holding word "owner" was used 
 in popular sense in provision to foreclose tax liens; Bangor v. Peirce, 106 Me. 
 534, 29 L.R.A (N.S.) 773, 138 Am. St. Rep. 363, 76 Atl. 945, holding that general 
 taxes upon land held in trust may be assessed to holder of legal title and such 
 holder is within statute imposing personal liability. 
 
 Cited in footnote to Minneapolis & N. Elevator Co. v. Traill County, 50 L. 
 R. A. 267, which sustains statute taxing grain in elevators, etc., in proprietor's 
 name. 
 
 Cited in note (35 L.R.A.(N.S-) 674) on property granted with reservation of 
 title or lien in favor of public, as subject of taxation. 
 Who Is an "owner." 
 
 Cited in Re Fifth Street, 22 Pa. Super. Ct. 218. holding vendee in land con- 
 tract not an owner entitled to damages for change of grade in street before re- 
 ceiving deed. 
 
 Cited in note (24 L.R.A.(N.S.) 1301) on contract purchaser of realty as owner 
 for purposes of taxation. 
 
2 L.R.A. 773] L. R. A. CASES AS AUTHORITIES. 388 
 
 Foreclosure of tax liens. 
 
 Cited in Wells v. Johnston, 55 App. Div. 487, 67 N. Y. Supp. 112. holding tax 
 sale by treasurer under county act subject to prior vested rights of people. 
 What law- determines validity of tax sale. 
 
 Cited in Sheafer v. Mitchell, 109 Term. 211, 71 S. W. 86, holding tax sale, valid 
 by law then existing, cannot be affected by subsequent legislation. 
 
 Cited in note (4 L.R.A. (N.S.) 1074) on change of laws as to effect of tax 
 certificates as evidence of. title, 
 Tax deed as evidence of regularity of assessments. 
 
 Cited in Johnson v. Taylor, 150 Cal. 206, 10 L.R.A.(N.S.) 821, 119 Am. St. Rep. 
 181, 88 Pac. 903, on tax deed as evidence of the regularity of the assessment. 
 
 2 L. R. A. 779, ATTRILL v. HUNTINGTON, 70 Md. 191, 14 Am. St. Rep. 344, 
 
 16 Atl. 651. 
 By what court corporation charter forfeited. 
 
 Cited in Com. ex rel. Kirkpatrick v. Western U. Teleg. Co. 1 Dauphin Co. Rep. 
 150, holding Federal courts have no jurisdiction of actions by state to forfeit 
 corporation charter. 
 Enforcing statute of another state. 
 
 Cited in Jones v. Fidelity Loan & T. Co. 7 S. D. 132, 63 N. W. 553, holding 
 penal laws of state not binding on residents of another state; Huntington v. 
 Attrill, 18 Ont. App. Rep. 155 (dissenting opinion) ; Casey v. St. Louis Transit 
 Co. 116 Mo. App 268, 91 S. W. 419, on courts as not enforcing the penal stat- 
 utes of other states. 
 
 Cited in footnote to Midland Co. v. Broat, 17 L. R. A. 312, which holds con 
 tracts valid where made enforceable in other state. 
 
 Cited in notes (8 L. R. A. 269) on foreign judgments not subject to collateral 
 Impeachment; (4 L. R. A. 132) on constitutional law; effect and validity of 
 foreign judgments; (12 L.R.A.(N.S.) 874) on action upon judgment recovered 
 under penal statute in another state. 
 Statute of limitations. 
 
 Cited in footnote to State Sav. Bank v. Johnson, 33 L. R. A. 552, which holds 
 action to enforce liability of corporate trustees for failure to make reports one 
 for penalty, within rule as to limitations. 
 
 Cited in note (5 Eng. Rul. Cas. 944) on conflict of laws as to limitations. 
 
 Disapproved in Kilton v. Providence Tool Co. 22 R. I. 614, 48 Atl. 1039, hold- 
 ing action against stockholders to enforce debt of company barred only by twenty 
 years' statute of limitations. 
 jVature of stockholder's liability for debts. 
 
 Cited in Miners' & M. Bank v. Snyder, 100 Md. 67, 68 L.R.A. 315, 108 Am. 
 St. Rep. 390, 59 Atl. 707, on liability of stockholder for corporate debts as not 
 constituting corporate assets. 
 Enforcement of stockholders liability. 
 
 Cited in Myers v. Knickerbocker Trust Co. 1 L.R.A. (N.S.) 1175, 71 C. C. A. 
 199, 139 Fed. 114, on the enforcement of stockholder's liability for corporate 
 debts. 
 
 2 L. R. A. 784, BENTZ v. NORTHWESTERN AID ASSO. 40 Minn. 202, 41 
 
 N. W. 1037. 
 Claim nu.-i inst mutual accident company. 
 
 Cited in Union Mut. Acci. Asso. v. Frohard.. 134 111. 239, 10 L. R. A. 386, 23 
 Am. St. Rep. 664, 25 N. E. 642, holding presumption is that claim would have 
 
389 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 786 
 
 been paid in full had assessment been made by mutual accident association; 
 Thompson v. Piedmont Mut. Ins. Co. 77 S. C. 492, 58 S. E. 341, holding an action 
 at law will lie for damages for breach of contract to make an assessment; 
 Batson v South Carolina Mut. Ins. Co. 78 S. C. 311, 58 S. E. 936, holding where 
 company denies all liability and refuses to make an assessment an action at law 
 may be maintained for the sum as damages for breach of contract; Union Mut. 
 Acci. Asso. v. Frohard, 134 111. 239, 10 L.R.A. 386, 23 Am. St. Rep. 664, 25 N. E. 
 642, holding where officers wrongfully refused to levy upon members to pay a 
 certificate given to a member a court of equity may compel the levy. 
 
 Cited in notes (44 L. R. A. 855) on mutual benefit association; remedy for 
 refusal to levy assessment to meet death claims; (8 L. R. A. 116) on contract of 
 mutual benefit association; (2 L. R. A. 788) on actions on certificate of mutual 
 benefit association; (15 Am. St. Rep. 437; 52 Am. St. Rep. 577, 578) on remedy 
 of beneficiary when mutual society refuses to make assessments 
 Estoppel of insured or beneficiary. 
 
 Cited in Modern Woodmen v. Davis, 184 111. 238, 56 N. E. 300, holding bene- 
 ficiary not estopped, by affidavit of physician filed by her, to show true cause of 
 death; Hogan v. Metropolitan L. Ins. Co. 164 Mass. 449, 41 N. E. 663, holding 
 beneficiary in policy not estopped to show deceased did not have disease at time 
 of application; Stevens v. Continental Casualty Co. 12 N. D. 472, 97 N. W. 862, 
 holding recitals in preliminary proofs of death, cannot ordinarily be considered 
 as admissions or estoppels, so as to prevent a showing of the true facts upon the 
 trial. 
 
 Cited in notes (44 L.R.A. 855) on conclusiveness of proof of loss as against 
 insured or his beneficiaries; (52 Am. St. Rep. 564) on estoppel of beneficiary as 
 to proofs of death. 
 
 2 L. R. A. 786, JACKSON v. NORTHWESTERN MUT. RELIEF ASSO. 73 Wis. 
 
 507, 41 N. W. 708. 
 Legal action to compel benefit society to make assessment. 
 
 Cited in Silvers v. Michigan Mut. Ben. Asso. 94 Mich. 47, 53 N. W. 935; Cove- 
 nant Mut. Life Asso. v. Kentner, 89 111. App. 498; O'Brien v. Home Benefit Soc. 
 117 N. Y. 319, 22 N. E. 954, holding action at law maintainable upon refusal 
 of benefit society to make assessment; Thompson v. Piedmont Mut. Ins. Co. 77 
 S. C. 492, 58 S E. 341, holding the insured in a mutual assessment insurance 
 policy providing that no suit should be brought thereon until assessment made, 
 might where loss occurs sue on policy before bringing action to compel the as- 
 sessment; Batson v. South Carolina Mut. Ins. Co. 78 S. C. 311, 58 S. E. 936, 
 holding insured under mutual assessment might sue for breach of contract where 
 company refuses to make an assessment. 
 
 Cited in footnote to Bentz v. Northwestern Aid Asso. 2 L. R. A. 784, which 
 holds action at law remedy for breach of contract to make death assessments. 
 
 Cited in notes (4 L. R. A. 382; 7 L. R. A. 189) as to remedy for refusal to 
 levy assessment; (S L. R. A. 115) as to damages for neglect to make assess- 
 ment; (15 Am. St. Rep. 437; 52 Am. St. Rep. 578) on remedy of beneficiary 
 when mutual society refuses to make assessments. 
 Sufficiency of complaint. 
 
 Cited in Johns v. Northwestern Mut. Relief Asso. 87 Wis. 113, 58 N. W. 76, 
 holding complaint states facts entitling plaintiff to money judgment on con- 
 tract for substantial damages. 
 
2 L.R.A. 789] L. R. A. CASES AS AUTHORITIES. 390 
 
 2 L. R. A. 789, ASTOR v. NEW YORK ARCADE R. CO. 113 N. Y. 93, 20 
 
 N. E. 594. 
 Title of statute. 
 
 Followed without opinion in Bailey v. New York Arcade R. Co. 113 X. Y. 615. 
 
 Cited in Parker v. Elmira, C. & N. R. Co. 165 N. Y. 278, 59 N. E. 81, holding 
 "to authorize railroad company to extend road, and confirm purchase, and for 
 other purposes" covers provision for maximum rate chargeable per mile; Re 
 Clinton Ave. 57 App Div. 169, 68 N. Y. Supp. 196, holding "in relation to Clin- 
 ton avenue" covers proper provisions relating to increase in width of street; 
 Van Brunt v. Flatbush, 128 N. Y. 54, 27 N. E. 973, holding "local improvements 
 in town of Flatbush" sufficient to cover provision for necessary construction of 
 outlet trunk sewer through town of Flatlands; Sweet v. Syracuse, 129 X. Y. 332, 
 27 N. E. 1081, holding "establish and maintain water department in and for 
 Syracuse" to embrace establishment and detailed organization of water depart- 
 ment; People v. Doxtater, 75 Hun, 479, 27 N. Y*. Supp. 481, holding "to prevent 
 taking fish from waters of Lake Ontario adjacent to shore or inland waters of 
 county" covers private lake in county; Curtin v. Barton, 139 X. Y. 513, 34 N. E. 
 1093, holding "establish municipal court" embraces abolition of justice of peace 
 and justice's court; Sweet v. Syracuse, 60 Hun, 33, 14 X. Y. Supp. 421, holding 
 "establish and maintain water department" covers provisions for supplying city 
 with water; New York v. Gorman, 26 App. Div. 193, 49 X. Y. Supp. 1026, hold- 
 ing "in relation of office of sheriff" covers new system of management and admin- 
 istration of office ; Wilcox v. Baker, 22 App. Div. 303, 47 X. Y. Supp. 900, holding 
 "to facilitate construction of railroad and to authorize towns to subscribe to 
 capital stock thereof" covers amendment providing for continued assessment of 
 property subject to tax at time of original act; People ex rel. Dee v. Backus, 11 
 App. Div. 149, 42 N. Y. Supp. 899, holding "in relation to office of district attor- 
 ney, providing for election of district attorney," etc., covers express repeal of 
 act creating office of county detective; Dyker Meadow Land & Improv. Co. v. 
 Cook, 3 App. Div. 168, 38 N. Y. Supp. 222, holding "amendment of title and act 
 'relating to assessment of real property in Brooklyn' " covers exemption of any 
 land in county of Kings; State ex rel. Standish v. Nomland, 3 X. D. 432, 44 Am. 
 St. Rep. 572, 57 X. W. 85, holding "creating office of state board of auditors and 
 prescribing duties thereof" not indicative of provision for security and augmenta- 
 tion of state funds; Fort v. Cummings, 90 Hun, 485, 36 X. Y. Supp. 36, holding 
 legislature authorized to pass any act germane to subject intrusted to its su- 
 pervision by Constitution; Re Buffalo, 46 N. Y. S. R. 85, 18 X. Y. Supp. 771, 
 holding "select and locate grounds desirable for park" not indicative of pro- 
 vision changing method of procedure in exercise of right of eminent domain under 
 charter; Coxe v. State, 144 N. Y. 409, 39 N. E. 400, holding "drain marsh lands" 
 not indicative of grant of lands under water; Rogers v. Union R. Co. 10 Misc. 
 59, 30 N. Y. Supp. 855, holding "to amend act," etc., "as subsequently amended" 
 not indicative of ratification of all proceedings under the act; Lindsay v. United 
 States Sav. & L. Asso. 120 Ala. 173, 42 L. R. A. 788, 24 So. 171, holding "to regu- 
 late business of building and loan association" not indicative of legalization of 
 past transactions of associations; Coiscadden v. Haswell, 41 Misc. 62, 82 X. Y. 
 Supp. 347, holding provision for removal of superintendent of penitentiary not 
 within title purporting to relate to his salary only; Turner v. Coffin, 9 Idaho, 
 362, 74 Pac. 962, on how title to legislative act is to be construed under consti- 
 tutional provision requiring subject of act to be embraced in the title; Pond 
 Creek v. Haskell, 21 Okla, 742, 97 Pac. 338; Economic Power & Constr. Co. v. 
 Buffalo, 195 X. Y. 296, 88 N. E. 389, on necessity that title of act fairly suggest 
 subjects dealt with in act. 
 
391 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 798 
 
 Cited in footnotes to Judson v. Bessemer, 4 L. R. A. 742, which holds pro- 
 vision authorizing issue of municipal bonds within title; Thomas v. Wabash, 
 St. L. & P. R. Co. 7 L. R. A. 145, which holds provision limiting rights in water 
 to railroad companies owning landings not within title; Millvale v. Evergreen 
 R. Co. 7 L. R. A. 369, holding title referring merely to title of prior act suffi- 
 cient -where subject-matter merely supplemental; Hronek v. People, 8 L. R. A. 
 837, holding statute regulating manufacture, as well as prohibiting same for 
 certain purpose, not invalid. 
 Grant of new rights under gnise of amendment. 
 
 Cited in Auchincloss v. Metropolitan Elev. R. Co. 69 App. Div. 69, 74 N. Y. 
 Supp. 534, holding act conferring upon railroad company right to lay tracks 
 in addition to those authorized by charter acquired by it from previous com- 
 pany unconstitutional. 
 
 Distinguished in Re Third Ave. R. Co. 121 N. Y. 541, 9 L. R. A. 126, 24 N. E. 
 951, holding statute authorizing change of motor power not in conflict with 
 constitutional provision that consent of local authorities be obtained for "con- 
 struction" of railway. 
 
 2 L. R. A. 795, LIBBEY v. MASON, 112 N. Y. 525, 20 N. E. 355. 
 Special proceeding? Final order. 
 
 Cited in Tilden v. Aitkin, 37 App. Div. 30, 55 N. Y. Supp. 735, to point, 
 proceeding to compel accounting by administrator is a special proceeding; Re 
 Board of Education, 34 N. Y. S. R. 493, 11 N. Y. Supp. 780, holding proceeding 
 to acquire lands for school purposes a special proceeding, terminating in final 
 order. 
 Necessity of entry of judgment. 
 
 Cited in note (28 L. R. A. 629) as to what entry necessary to complete judg- 
 ment. 
 Right to letters of administration. 
 
 Cited in Re Moulton, 32 N. Y. S. R. 637, 10 N. Y. Supp. 717, holding widow 
 has prior statutory right to letters of administration; Re Bailey, 31 Nev. 382, 103 
 Pac. 232, Ann. Cas. 1912 A, 743; Re Campbell, 192 N. Y. 316, 18 L.R.A.(X.S.) 
 607, 85 N. E. 392, affirming 123 App. Div. 214, 108 N. Y. Supp. 281, holding 
 right to letters of administration is not affected by fact that party entitled to 
 is not a resident of the state. 
 
 Cited in notes (113 Am. St. Rep. 563; 1 L.R.A.(N.S.) 347, 348) on right of 
 nonresidents to act as executors or administrators. 
 
 2 L. R. A. 796, TILGE v. BROOKS, 124 Pa. 178, 16 Atl. 746. 
 Nature of partnership association. 
 
 Cited in footnote to Edwards v. Warren Linoline & Gasoline W&rks, 38 L. R. 
 A. 791, which holds partnership association organized under laws of Pennsyl- 
 vania regarded as partnership, instead of corporation, in Massachusetts. 
 Termination of liability of special partner. 
 
 Cited in note (19 Eng. Rul. Cas. 769) on necessity of notice of withdrawal 
 to terminate liability of special partner. 
 
 2 L. R. A. 798, COM. v. DELAWARE DIVISION CANAL CO. 123 Pa. 594. 16 
 
 Atl. 584. 
 
 Followed without discussion in Com. v. J. Langdpn & Co. 1 Dauphin Co. Rep. 
 125; Com. v. Chester, 123 Pa. 640, 16 Atl. 591; Com. v. Hillside Coal & I. Co. 
 1 Pa, Dist. R. 742. 
 
2 L.R.A. 798] L. R. A. CASES AS AUTHORITIES. 392 
 
 Collection of tax by corporation. 
 
 Cited in Com. v. Delaware & H. Canal Co. 150 Pa. 249, 24 Atl. 599; and 
 Com. v. Union Traction Co. 192 Pa. 514, 43 Atl. 1010, holding corporation re- 
 sponsible for collection of tax; Com. v. Wilkes-Barre & S. R. Co. 14 Pa. 
 Co. Ct. 210, and Com. v. Lehigh Valley R. Co. 129 Pa. 457, 18 Atl. 406, 
 holding corporation responsible for failure of its treasurer to collect and 
 pay over to state the. tax on loans ; Com. v. Union Traction Co. 1 Dauphin Co. 
 Rep. 177, to point that act June 30, 1885, makes corporations responsible for 
 collection of tax by deducting it from interest paid by its treasurer upon evi- 
 dences of indebtedness issued by corporation; Com. v. Lehigh Valley R. Co. 186 
 Pa. 246, 40 Atl. 491, holding corporation chargeable as collector, and upon 
 failure to collect; Com. v. Pennsylvania Salt Mfg. Co. 145 Pa. 55, 22 Atl. 215, 
 to point that corporate treasurer may be required by statute to assess tax ; 
 Wilkes-Barre Deposit & Sav. Bank v. Wilkes-Barre, 148 Pa. 603, 24 Atl. Ill, 
 holding corporate treasurers required by statute to assess and collect tax; Com. 
 v. Philadelphia & R. Coal & I. Co. 137 Pa. 491, 20 Atl. 531, Affirming 2 Dauphin 
 Co. Rep. 405, holding it duty of treasurer of corporation in hands of receiver 
 to assess tax, and of receiver to pay it; Com. v. Philadelphia, 33 W. N. C. 107, 
 holding municipal corporation liable for the failure of its treasurer to collect 
 and pay tax on loans; Com. v. Wilkes-Barre & S. R. Co. 162 Pa. 619, 29 Atl. 
 696, to point that same tax assessed by corporation should be retained and paid 
 to state; Com. v. New York, L. E. & W. R. Co. 150 Pa. 239, 24 Atl. 609, holding 
 statute requiring deduction of state tax by corporate officers on payment of 
 interest on bonds constitutional; Com. v. Jarecki Mfg. Co. 204 Pa. 40, 53 AtL 
 517, holding act exempting companies holding bonds as part of capital stock 
 from tax thereon relieves debtor company from duty to deduct tax from interest; 
 Coal Ridge Improv. & Coal Co. v. Jennings, 127 Pa. 399, 17 Atl. 986, holding act 
 1885, requiring corporation to collect tax on its securities, does not violate uni- 
 formity rule; Re Wyoming Valley Ice Co. 145 Fed. 269; Com v. Clairton Steel 
 Co. 222 Pa. 295, 71 Atl. 99, on duty of corporation to collect a tax imposed upon 
 it and pay it into state treasury; Com. v. Clairton Steel Co. 229 Pa. 248, 78 Atl. 
 131, holding corporation failing to deduct tax on bonds from interest thereon, 
 liable for tax. 
 Classification of subjects of taxation. 
 
 Cited in Com. v. Westinghouse Electric Mfg. Co. 151 Pa. 272, 24 Atl. 1107; 
 Williamsport v. Wenner, 172 Pa. 182, 33 Atl. 544; Western U. Teleg. Co. v. 
 State, 146 Ind. 61, 44 N. E. 793, holding legislature has power to classify 
 subjects for taxation; Com. use of Titusville v. Clark, 195 Pa. 639, 57 L. R. A. 
 350, 86 Am. St. Rep. 694, 46 Atl. 286, holding that classification for taxation 
 should avoid gross inequality; Kingsley v. Merrill, 122 Wis. 197, 67 L.R.A. 205, 
 99 N. W. 1044, 2 A. & E. Ann. Cas. 748, holding statute making debts due from 
 solvent debtors subject to taxation does not violate constitutional requirement 
 that taxation be uniform, on the theory that statute distinguishes between debts 
 due from solvent and insolvent debtors; State ex rel. Foot v. Bazille, 97 Minn. 
 20, 6 L.RJMN.S.) 739, 106 N. W. 93, 7 A. & E. Ann. Cas. 1056. on the classifica- 
 tion of persons and property for the purpose of taxation as upheld by the court; 
 Jermyn v. Scranton, 212 Pa. 602, 62 Atl 29, on the power of the legislature to 
 classify subjects of taxation; Delaware, L. & W. R. Co. v. Tax Assessment, 224 
 Pa. 243, 73 Atl. 429, on substantial uniformity as sufficient in the levy and 
 assessment of taxes. 
 Classification of corporations. 
 
 Cited in Com. v. Germania Brewing Co. 145 Pa. 87, 22 Atl. 240, Affirming 4 
 Dauphin Co. Rep. 56, holding exception of classes of corporations from taxation 
 
393 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 798 
 
 does not violate uniformity: Com. v. Sharon Coal Co. 164 Pa. 304, 30 Atl. 127, 
 holding that legislature cannot discriminate between corporations in same class. 
 
 Cited in note (60 L. R. A. 340, 341, 345, 348, 353) on classification of corpora- 
 tions for purpose of taxation. 
 Dealers or peddlers. 
 
 Cited in Knisely v. Cotterel, 196 Pa. 619, 50 L. R. A. 90, 46 Atl. 81, Affirming 
 3 Dauphin Co. Rep. 123, holding venders or dealers in merchandise may, for 
 purposes of taxation be classified as wholesalers and retailers; Com. use of 
 Titusville v. Clark, 195 Pa. 638, 57 L. R. A. 350, 86 Am. St. Rep. 694, 46 
 Atl. 286, Affirming 21 Pa. Co. Ct. 500, 10 Pa. Super. Ct. 511, upholding classi- 
 fication for taxation of wholesale and retail dealers in accordance with amount 
 of business transacted; New Castle v. Cutler, 15 Pa. Super. Ct. 624, holding 
 classification of peddlers for taxation according to amount of goods carried, 
 with additional tax upon horse and wagon, except gardeners, does not violate 
 constitutional requirement of uniformity. 
 Lodging bouses. 
 
 Cited in Com. v. Muir, 1 Pa. Super. Ct. 581, 38 W. N. C. 331, upholding right 
 to classify lodging houses for purpose of taxation. 
 Tax on capital stock. 
 
 Cited in Com. v. Brush Electric Light Co. 145 Pa. 154, 22 Atl. 844, holding 
 act 1879, 4, as to method of rating corporate stock for taxation, does not 
 violate uniformity; Com. v. National Oil Co. 157 Pa. 523, 27 Atl. 374, holding 
 statute making capital stock distinct class of investments for taxation does 
 not violate uniformity; Com. v. Delaware & H. Canal Co. 1 Dauphin Co. Rep. 
 274, holding tax on capital stock imposed by acts 1877, 1879, not objectionable 
 for want of uniformity; Com. v. Merchants' & M. Nat. Bank, 168 Pa. 314, 31 
 Atl. 1065, holding provision exempting from local taxation banks paying spec- 
 ified state tax on par value of their shares, but imposing on those which do 
 not tax upon actual value of shares, not unconstitutional for want of uni- 
 formity; Com. v. Mortgage Trust Co. 227 Pa. 180, 76 Atl. 5, upholding legislative 
 act valuing capital stock of trust companies according to capital and surplus al- 
 though in determining the value of the stock the selling value in the open market 
 was not taken into consideration. 
 Corporate liability to taxation. 
 
 Followed in Com. v. Philadelphia & R. Coal & I. Co. 137 Pa. 491, 20 Atl. 
 531, as to liability of corporation to taxation. 
 
 Cited in Com. v. William Cramp & Sons, Ship & Engine Bldg. Co. 2 Dauphin 
 Co. Rep. 399, holding indebtedness due to an'd held by Pennsylvania corpora- 
 tions in their own right not taxable; Com. v. Thirteenth & F. Streets Pass. 
 R. Co. 2 Dauphin Co. Rep. 393, holding corporation liable to tax upon whole 
 amount of indebtedness upon treasurer's failure to show any part due to non- 
 residents. 
 
 Cited in footnotes to Re Whiting, 34 L. R, A. 232, which holds bonds of 
 foreign corporation within state, though owned by nonresident, subject to trans- 
 fer tax; Vermont & C. R. Co. v. Vermont C. R. Co. 10 L. R. A. 562, which 
 holds railroad lessor liable for gross earnings tax; State, Singer Mfg. Co.. Pros- 
 ecutor, v. Heppenheimer, 32 L. R. A. 643, which holds company exempt from 
 taxation under exemption of its shares. 
 
 Cited in note (57 L. R. A. 87) on conditions upon privilege of exercising 
 corporate franchises. 
 Pennsylvania revenne system. 
 
 Cited in Perry County v. Troutman, 8 Pa. Co. Ct. 428, Affirmed in 144 
 
2 L.R.A. 798] L. R. A. CASES AS AUTHORITIES. 394 
 
 Pa. 362, 22 Atl. 705, to point that act of 1844 is beginning of present Penn- 
 sylvania revenue system. 
 When tax payable. 
 
 Cited in Com. v. Lehigh Valley R. Co. 129 Pa. 447, 18 Atl. 406, holding stat- 
 ute requiring annual payment of state tax refers to calendar year if no date 
 set for its commencement. 
 Taxation of judgments. 
 
 Cited in footnote to Hamilton v. Wilson, 48 L. R. A. 238, which holds 
 void statute for taxation of personal judgments with specified exceptions. 
 Of debts. 
 
 Cited in Beck's Appeal, 13 Pa. Dist. R. 776, 9 North. Co Rep. 229, holding a 
 mortgage given as collateral and to secure a lien is not taxable. 
 
 2 L. R. A. 805, UNITED STATES v. HUTCHESON, 39 Fed. 540. 
 Adjustment of postmaster's accounts. 
 
 Cited in United States v. Miller, 8 Utah, 34, .28 Pac. 957, holding postmaster's 
 compensation cannot be withheld after his accounts have been adjusted; United 
 States v. Case, 49 Fed. 271, holding Postmaster General cannot charge postmas- 
 ter with commission on false returns when accounts have been allowed; Nor- 
 ton v. United States, 26 C. C. A. 639, 52 U. S. App. 296, 81 Fed. 821, holding 
 postmaster can defend suit on bond by showing that money never came to his 
 hand, without having same disallowed by auditor. 
 
 2 L. R. A. 808, WHEELER v. McGUIRE, 86 Ala. 398, 5 So. 190. 
 Liability of principal. 
 
 Cited in Sweetser v. Shorter, 123 Ala. 522, 26 So. 298, holding principal 
 bound by agreement of general agent to construct houses; Kansas City, M. &. 
 B. R. Co. v. Higdon, 94 Ala. 290, 14 L. R. A. 518, 33 Am. St. Rep. 'l!9, 10 
 So. 282, holding railroad responsible for loss of dog accepted by baggage master 
 for conveyance; Drennan v. Boice, 19 Misc. 643, 44 N. Y. Supp. 394, holding 
 action against agent after disclosure of principal barred action against prin- 
 cipal; Fowle v. Outcalt, 64 Kan. 358, 67 Pac. 889, holding owner of note who 
 allowed another to collect moneys on it bound by payments; Continental F. 
 Ins. Co. v. Brooks, 131 Ala. 620, 30 So. 876, holding waiver by general agent 
 of insurance company, with power, binding, where party ignorant of termina- 
 tion of agency. 
 
 Cited in footnote to Slater v. Capital Ins. Co. 23 L. R. A. 181, which holds 
 binding on company waiver of proofs of loss as to building, by adjuster sent 
 to adiust loss on contents. 
 
 Cited in notes (8 L. R. A. 74) on what constitutes waiver of conditions in 
 fire insurance; (2 L. R. A. 749) on principal not liable when credit given ex- 
 clusively to agent; (88 Am. St. Rep. 780, 781) on liability of principal for unau- 
 thorized acts of agent. 
 Constructive notice to principal. 
 
 Cited in Goodbar v. Daniel, 88 Ala. 590, 16 Am. St. Rep. 76, 7 So. 254, hold- 
 ing knowledge of husband of fraudulent deed, while agent of wife, construc- 
 tively imputed to her; Meyers v. Gerhart, 54 Wash. 664, 103 Pac. 1114, holding- 
 knowledge of defendant's agent acquired -while employed by defendant's assignors,, 
 of such assignors' wrongful acts was not imputable to defendants. 
 
 Cited in note (24 Am. St. Rep. 230) on notice to agent as notice to principal, 
 Agent's antbority. 
 
 Cited in Montgomery Furniture Co. v. Hardaway, 104 Ala. 115, 16 So.. 
 
395 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 813 
 
 29, holding general agent's authority prima facie coextensive with employ- 
 ment; Aldrich v. Wilmarth, 3 S. D. 528, 54 N. W. 811, holding agent had os- 
 tensible authority to order work, and contractor justified in believing him au- 
 thorized; Insurance Co. of N. A. v. Thornton, 130 Ala. 237, 55 L. R. A. 551, 89 
 Am. St. Rep. 39, 30 So. 614 (dissenting opinion), majority holding that general 
 agent for prescribed area cannot bind company outside of it. 
 
 Cited in footnote to Fay v. Slaughter, 56 L. R. A. 564, which denies author- 
 ity of agent, empowered to indorse principal's checks for deposit, to ratify 
 deposit of checks received for securities on which agent has forged transfers. 
 
 Cited in note (2 L. R. A. 824) on private restrictions on agent's authority 
 not to affect third persons. 
 
 Distinguished in Witcher v. Gibson, 15 Colo. App. 170, 61 Pac. 192, holding 
 power inferred from what principal knowingly permitted agent to do. 
 Ratification of agent's acts. 
 
 Cited in Sullivan v. Louisville & N. R. Co. 128 Ala. 104, 30 So. 528, hold- 
 ing unauthorized acts of agent not shown to have been ratified; John Gund Brew- 
 ing Co. v. Tourtelotte, 108 Minn. 75, 29 L.R.A.(N.S.) 212, 121 N. W. 417, holding 
 that principal did not ratify unknown unauthorized assignment by agent to 
 purchaser of rent pending negotiations for sale of realty. 
 
 Cited in footnotes to Daniels v. Brodie, 11 L. R. A. 81, which holds agent's 
 acceptance of goods ratified by keeping part of same; Thompson v. New South 
 Coal Co. 62 L. R. A. 551, holding principal's acceptance of portion of pur- 
 chase money no ratification of agent's unauthorized sale. 
 
 Cited in notes (7 L.R.A. 405) on principal and agent; effect of ratification of 
 acts of agents; (13 Am. St. Rep. Ill) on ratification of unauthorized sale of 
 real estate by agent. 
 Admissibility of evidence as to power of agent. 
 
 Cited in Cawthon v. Lusk, 97 Ala. 676, 11 So. 731, holding usages of trade 
 admissible to interpret powers under written instrument of agency; Western 
 U. Teleg. Co. v. Cunningham, 99 Ala. 317, 14 So. 579, holding private instruc- 
 tions by telegraph company to agent, forbidding him to waive payment for mes- 
 sage till following day, inadmissible; Lytle v. Bank of Dothan- 121 Ala. 218, 26 
 So. 6, holding the giving of other notes competent to show agent's implied 
 power to give notes in suit; A. G. Rhodes Furniture Co. v. Weeden, 108 Ala. 
 257, 19 So. 318, holding secret instructions to general manager to rent by month 
 only inadmissible; Hawkins v. Windhorst, 77 Kan. 676, 17 KR.A.fX.S.) 221, 127 
 Am. St. Rep 445, 96 Pac. 48, holding where issue whether husband had authority 
 as agent of wife to sign her name to a check on her bank account, evidence that 
 be frequently did so with her knowledge is competent. 
 Agent's liability. 
 
 Cited in note (12 L. R. A. 346) on responsibility of agent on his contracts. 
 
 2 L. R. A. 813, BIELENBERG v. MONTANA UNION R. CO. 8 Mont. 271, 20 
 
 Pac. 314. 
 Followed without discussion in Thompson v. Northern P. R. Co. 8 Mont. 
 
 283, 21 Pac. 25. 
 
 Validity of statntes making railroad company absolutely liable fo* 
 injury. 
 
 Cited in Cateril v. Union P. R. Co. 2 Idaho, 543, 21 Pac. 416; Denver & R. 
 G. R. Co. v. Outcalf, 2 Colo. App. 405, 31 Pac. 177; Jensen v. Union P. R. Co. 
 6 Utah, 258, 4 L. R. A. 726, 21 Pac. 994, holding act making railroac 
 companv liable for killing animals on track invalid; Oregon R. & Nav. Co. v. 
 Smallev 1 \Yash. 211, 22 Am. St. Rep. 143, 23 Pac. 1008, holding act mak- 
 
2 L.R.A. 813] L. R. A. CASES AS AUTHORITIES. 396 
 
 ing railroad companies liable for killing animals on track, unless fence main- 
 tained, invalid; McCauley v. Montana C. R. Co. 11 Mont. 485, 28 Pac. 730, 
 holding railroad company which took co\v injured by its train, killed, and sold 
 it, prima facie liable; Catril v. Union P. R. Co. 2 Idaho, 579, 21 Pac. 416. holding 
 an act making railroad company absolutely liable for the killing of domestic 
 animals, unless the owners thereof were negligent is void as not providing due 
 "process of law." 
 
 Cited in footnote to Wadsworth v. Union P. R. Co. 23 L. R. A. 812, which 
 holds unconstitutional act creating absolute liability for stock killed or injured 
 by trains. 
 
 Cited in notes (5 L. R. A. 359) on due process of law; (25 L. R. A. 162) 
 on constitutionality of statutes making railroad companies absolutely liable 
 for damage by fires set by them, or stock killed by them, irrespective of 
 negligence; (9 L.R.A. (N.S.) 360) on statute imposing duty on railroad of fencing 
 right of way; (62 Am. St. Rep. 170) on protection of corporations from special 
 and hostile legislation. 
 
 Distinguished in Sullivan v. Oregon R. & Nav. Co. 19 Or. 327, 24 Pac. 408, 
 holding act making railroad company liable for killing animals on unfenced 
 track valid; Central R. Co. v. Murphey, 116 Ga. 869, 60 L. R. A. 820, 43 S. E. 
 265, sustaining statute making initial carriers liable for lost or damaged freight 
 on which they fail to report within thirty days after application. 
 Negligence. 
 
 Cited in Hopkins v. Butte & M. Commercial Co. 13 Mont. 225, 40 Am. 
 St. Rep. 438, 33 Pac. 818, holding negligence must be shown in actions for 
 submerging land by log jam. 
 
 2 L. R. A. 816, McCLINTOCK v. LOISSEAU, 31 W. Va. 865, 8 S. E. 612. 
 When trust shown. 
 
 Cited in Deck v. Tabler, 41 W. Va. 335, 56 Am. St. Rep. 837, 23 S. E. 
 721, holding no resulting trust in favor of husband by conveyance to wife of 
 land purchased with his money; Hoon v. Hoon, 126 Iowa, 393, 102 N. W 105, 
 holding a conveyance to a son paid for by his father is presumed to be an ad- 
 vancement. 
 
 Cited in footnote to Monahan v. Monahan, 70 L.R.A. 935, which holds that 
 equity may declare trust in securities purchased in name of son for purpose of 
 avoiding taxation taken in name of son without his knowledge where he after- 
 wards surreptitiously took possession of and refused to surrender them. 
 
 Cited in note (12 L. R. A. 566) on doctrine of advancements to heirs. 
 Evidence to show resulting trust. 
 
 Cited in Lahey v. Broderick, 72 N. H. 182, 55 Atl. 354, holding presumption 
 of gift arising from deed to wife of land paid for by husband rebuttable by 
 parol evidence; Re Henderson, 142 Fed. 574, on the establishment of trusts by 
 parol. 
 Fraudulent conveyance; effect between parties. 
 
 Cited in Edgell v. Smith, 50 W. Va. 355, 40 S. E. 402, holding deed to hinder 
 creditors void; Urpman v. Lowther Oil Co. 53 W. Va. 512, 97 Am. St. Rep. 
 1027, 44 S. E. 433, holding equity will not decree specific performance of 
 agreement made to defraud creditors; Jones v. Jones, 20 S. D. 639, ]08 X. W. 23, 
 holding the heirs of an owner of land who executed a conveyance for the pur- 
 pose of preventing another from collecting a judgment in an action pending could 
 not obtain relief against such conveyance; Poling v. Williams, 55 W. Va. 71, 
 46 S. E. 704, holding person making a conveyance of land for the purpose of 
 
397 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 820 
 
 hindering creditors would not be entitled to relief in equity against such con- 
 veyance; Hudkins v. Grim, 64 W. Va. 237, 61 S. E. 166, holding a party to a 
 fraud in the conveyance of land could not enforce a trust therein for his benefit. 
 
 Cited in note (6 L. R. A. 458) on no relief in law or equity in case of 
 fraudulent contracts. 
 
 Distinguished in Goldsmith v. Goldsmith, 46 W. Va. 431, 33 S. E. 266, holding 
 there must be liability chargeable on the land to prevent cancelation of a deed 
 alleged to have been given in fraud of creditors for grantee's failure to keep 
 agreement. 
 Contracts :itr:i inst public policy. 
 
 Cited in Phelan v. Wilson, 114 La. 822, 38 So. 570, refusing to give relief 
 against a conveyance of realty the consideration for which was the withdrawal 
 of a criminal prosecution. 
 
 Cited in footnotes to Leonard v. Poole, 4 L. R. A. 728, which holds one en- 
 gaging in plot to raise price of lard cannot be aided by court as against co- 
 plotter; Wassermann v. Sloss, 38 L. R. A. 176, which holds illegality of 
 transfer of stock to president for corrupting government officials does not 
 prevent recovery where taken by president for own use instead. 
 
 Cited in note (6 L. R. A. 615) on contracts against public policy void. 
 Enforcement in equity of contract invalid In law. 
 
 Cited in Henderson v. Henrie, 68 W. Va. 565, 34 L.R.A. (N.S.) 631, 71 S. E. 
 172, Ann. Oas. 1912 B, 318, holding that equity will not decree specific perform- 
 ance of verbal contract for sale of realty. 
 
 2 L. R. A. 820, PENNSYLVANIA R. CO. v. MAcKINNEY, 124 Pa. 462, 10 Am. 
 
 St. Rep. 601, 17 Atl. 14. 
 Carrier's liability to passeng-er Injured by missile. 
 
 Cited in Fewings v. Mendenhall, 88 Minn. 342, 60 L. R. A. 604, 97 Am. St. 
 Rep. 519, 93 N. W. 127, denying street railroad's liability to passenger 
 injured by missile thrown into car by strike sympathizer; Le Deau v. Northern 
 P. R. Co. 19 Idaho, 716, 34 L.R.A.(N.S.) 727, 115 Pac. 502, holding railroad not 
 liable for injury to passenger from boulder rolling down mountain side; Bosworth 
 v. Union R. Co. 26 R. I. 313, 58 Atl. 982, 3 A. & E. Ann. Cas. 1080, holding de- 
 fendant company not liable for injury to passenger by a stone thrown by a person 
 in a crowd, where although a strike existed and disorder had prevailed at the 
 time of injury there had been no intimation of danger. 
 
 Cited in note (3 L.R.A.(N.S.) 321) on liability for injury to passenger by 
 wrongful act of stranger directed against cars or passengers therein. 
 Presumption of negligence. 
 
 Cited in Thomas v. Philadelphia & R. R. Co. 148 Pa. 182, 15 L. R. A. 417, 30 
 W. N. C. 10, 23 Atl. 989, holding no presumption of negligence where passen- 
 ger is injured by missile in unexplainable manner; Keller v. Hestonville, M. & 
 F. Pass. R. Co. 149 Pa. 68, 30 W. N. C. 417, 24 Atl. 159, Affirming 1 Pa. Dist. 
 R. 198, holding mere fact that passenger was injured not presumption of neg- 
 ligence, so as to shift burden of proof; Herstine v. Lehigh Valley R. Co. 151 
 Pa. 253, 31 W. N. C. 52, 25 Atl. 104, holding burden of proving negligence 
 is on passenger injured in car by jolt caused by coupling; Fredericks v. 
 Northern C. R. Co. 157 Pa. 124, 22 L. R. A. 312, 27 Atl. 689, holding carrier 
 not liable for wrongful acts of strangers, not reasonably preventable; Bern 
 hardt v. West Pennsylvania R. Co. 159 Pa. 364, 28 Atl. 140 holding negligence 
 not presumed in injury to passenger by stepping on small piece of wood on 
 station platform; Benedick v. Potts, 88 Md. 56, 41 L. R. A. 480, 40 Atl. 1067, 
 holding mere fact that passenger fell from car on switchback railway not suf- 
 
2 L.K.A. 820] L. R. A. CASES AS AUTHORITIES. 398 
 
 ficient evidence of negligence; Whalen v. Consolidated Traction Co. 61 N. J. 
 L. 610, 41 L. R. A. 837, 68 Am. St. Rep. 723, 40 Atl. 645, holding nonsuit im- 
 proper where passenger was knocked off car and injured by conductor stumb- 
 ling against him; Nelson v. Lehigh Valley R. Co. 25 App. Div. 545, 50 X. Y. 
 Supp. 63, holding presumption of negligence not raised by tipping of passen- 
 ger out of chair in rounding curve, others keeping their seats; Western Mary- 
 land R. Co. v. State, 95 Md. 652, 53 Atl. 969, holding instruction that fact 
 that person was killed while a passenger is prima facie evidence of carrier's 
 negligence, erroneous; Denver & R. G. R. Co. v. Fotheringham, 17 Colo. App. 
 416, 68 Pac. 978, holding fact that passenger was injured by swinging shut 
 of car door not prima facie evidence of carrier's negligence; Pittsburg, C. C. & 
 St L. R. Co. v. Grom, 142 Ky. 58, 133 S. W. 977, holding that presumption of 
 negligence arises from striking of passenger by something attached to passing 
 freight train; Woas v. St. Louis Transit Co. 198 Mo. 674, 7 L.R.A. (N.S.) 235, 96 
 S. W. 1017, 8 A. & E. Ann. Cas. 584, holding no presumption of negligence on 
 part of street railroad company arose from the mere fact that a passenger was 
 injured by being struck by a missile thrown by a bystander; Knuckey v. Butte 
 Electric R. Co. 41 Mont. 324, 109 Pac. 979, holding that fact that passenger is 
 injured while alighting from car is not alone sufficient to charge railway with 
 liability; Cline v. Pittsburg R. Co. 226 Pa. 591, 27 L.R.A.(X.S.) 938, 70 Atl. 850, 
 holding no inference arises from fact of injury of passenger who while forced to 
 stand next to guard rail of crowded street car was thrown off by a lurch; Stan- 
 ford v. Chester Traction Co. 11 Del. Co. Rep. 241, holding that presumption of 
 negligence does not arise from presence of banana peel in car aisle; Barlick v. 
 Baltimore & 0. R. Co. 41 Pa. Super. Ct. 91, holding that no presumption of negli- 
 gence arises, where passenger throws bottle out of window and pieces of bottle 
 fly back and hit another passenger; Zercher v. Philadelphia Rapid Transit Co. 
 20 Pa. Dist. R. 18, holding negligence inferable from fall of trolley pole striking 
 person waiting for car; Ammon v. Conestoga Traction Co. 25 Lane. L. Rev. 98, 
 holding that presumption of negligence does not arise from passenger cutting his 
 finger on broken pane in raising trolley-car window; Christensen v. Oregon Short 
 Line R. Co. 35 Utah, 144, 20 L.R.A.(N.S.) 257, 99 Pac. 676, holding the mere fact 
 that passenger had her hand crushed by the sudden closing of the door of the 
 ear near which she was standing awaiting the stopping of the train created no 
 presumption of negligence; Allen v. Northern P. R. Co. 35 Wash. 230, 66 L.R.A. 
 808, 77 Pac 204, holding no presumption of negligence where a passenger while 
 attempting to board the train after it had started to move was thrown off 
 by a jerk of the train in increasing its speed; Cincinnati, N. O. & T. P. R. Co. v. 
 South Fork Coal Co. 1 L.R.A.(N.S.) 538, 71 C. C. A. 316, 139 Fed. 534, on creation 
 of presumption of negligence from the mere happening of an accident. 
 
 Cited in notes (15 L.R.A 38) on presumption of negligence from occurrence 
 of accidents; (7 L.R.A. (N.S.) 231) on presumption of negligence from injury to 
 passenger by missile from outside; (113 Am. St. Rep. 1021) on presumption of 
 negligence from happening of accident causing personal injuries. 
 
 Distinguished in Long v. Pennsylvania R. Co. 147 Pa. 347, 14 L. R. A. 
 743, 29 W. N. C. 377, 30 Am. St. Rep. 732, 23 Atl. 459, holding no presump- 
 tion of negligence where baggage is lost through unprecedented flood; Bueh- 
 ler v. Union Traction Co. 200 Pa. 179, 49 Atl. 788, holding company liable 
 for injury to passenger from falling wall, through employee's disregard of time- 
 ly warning. 
 
399 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 825 
 
 2 L. R. A. 823, HUBBARD v. TENBROOK, 124 Pa. 291, 10 Am. St. Rep. 585, 
 
 16 Atl. 817. 
 Liability of principal for acts of agent. 
 
 Cited in Wachter v. Phoenix Assur. Co. 132 Pa. 439, 19 Am. St. Rep. 600, 19 
 Atl. 289, holding principal bound by acts or conduct of agent within scope of 
 apparent authority, to one without notice; Romeo v. Martucci, 72 Conn. 516, 
 47 L. R. A. 607, 77 Am. St. Rep. 327, 45 Atl. 199 (dissenting opinion)' 
 majority holding consignor of goods may assert title against bona fide pur- 
 chaser under fraudulent sale; Lamb v. Thompson, 31 Neb. 453, 48 N. W. 
 58, and Steele Smith Grocery Co. v. Potthast, 109 Iowa, 417, 80 N. W. 517, 
 holding undisclosed principal liable for goods sold agent in latter's name; F. A. 
 Patrick & Co. v. Grand Forks Mercantile Co. 13 N. D. 17, 99 N. W. 55, holding 
 an undisclosed principal may be held liable for goods purchased by an agent 
 when discovered; Tres Palacios Rice & Irrig Co. v. Eidman, 41 Tex. Civ. App. 
 547, 93 S. W. 698, holding defendant company was not liable on contract made 
 by their general manager for the irrigation of a rice field where they had refused 
 to enter into such a contract the plant not being completed. 
 
 Cited in footnote to Slater Y. Capital Ins. Co. 23 L. R. A. 181, which holds 
 binding on company waiver of proofs of loss as to building by adjuster sent to 
 adjust loss on contents. 
 
 Cited in notes (2 L. R. A. 810, 811) on general and special agents, as to 
 liability of principal for acts of agent; (2 L. R. A. 749) on nonliability of 
 principal when credit is given exclusively to agent; (10 L. R. A. 355) on prin- 
 cipal bound by acts of agent; (12 L. R. A. 346) on responsibility of agent on 
 his contracts; (14 Am. St. Rep. 154; 22 Am. St. Rep. 95) on liability of principal 
 for acts of agent; (88 Am. St. Rep. 783) on liability of principal for unauthor- 
 ized acts of agent. 
 
 Distinguished in Brown v. German-American Title & T. Co. 174 Pa. 448, 
 34 Atl. 335, holding assignment of building contract to surety does not con- 
 stitute such assignee undisclosed principal. 
 
 2 L. R. A. 825, Re HOWE, 112 N. Y. 100, 19 N. E. 513. 
 Succession and inheritance taxes. 
 
 Cited in Re Sherwell, 11 N. Y. Supp. 897, holding under inheritance tax 
 law of 1887, taxable legacies exempt to extent of $500; Taylor's Estate, 6 
 Misc. 280, 27 N. Y. Supp. 232; Re Hall, 88 Hun, 70, 34 N. Y. Supp. 616; Re 
 Corbett, 171 N. Y. 518, 64 N. E. 209; Re Hoffman, 143 N. Y. 330, 38 N. E. 
 311, Modifying 76 Hun, 403, 27 N. Y. Supp. 1086, holding transfer tax 
 of 1892 is imposed upon aggregate of property descending from decedent; 
 Re Clark, 1 Connoly, 433, 5 N. Y. Supp. 199, holding tax on contingent re- 
 mainder under act of 1885 remains suspended until estate takes effect; State 
 v. Alston, 94 Tenn. 681, 28 L. R. A. 180, 30 S. W. 750, holding inheritance tax 
 .one on the privilege of receiving by inheritance or will; Black v. State, 113 
 U 'is. 212, 90 Am. St. Rep. 853, 89 N. W. 522, holding unconstitutional in- 
 heritance tax law exempting legacies of less than $10,000; Booth v. Com 130 Ky. 
 107, 33 L.R.A.(N.S.) 606, 113 S. W. 61; People v. Koenig, 37 Colo. 288, 85 Pac. 
 1129, 31 A. & E. Ann. Cas. 140, holding an exemption in an inheritance tax 
 on property passing by will applied to the separate distributive shares and not 
 to the aggregate value of the property of decedent. 
 
 Cited in footnotes to People v. Sherwood, 3 L. R. A. 464, which holds non- 
 resident not subject to succession tax; Re Stewart, 14 L. R. A. 836, which au- 
 thorizes succession on contingent interests under power of appointment after 
 
2 L.R.A. 825] L. R. A. CASES AS AUTHORITIES. 400 
 
 vesting of same; Re Swift, 18 L. R. A. 709, as to what is subject to succession 
 tax. 
 
 Cited in notes (3 L. R. A. 372) on collateral inheritance tax; (4 L. R. A. 
 171) on exemption from general taxation, as to succession or inheritance tax 
 not being tax on property; (10 L. R. A. 241) on collateral inheritance tax 
 under laws of Pennsylvania. 
 
 Distinguished in Dixon v. Ricketts, 26 Utah, 222, 72 Pac. 947, holding col- 
 lateral inheritance tax imposable on estate exceeding, though each legacy 
 is less than, amount exempt; Stellwagen v. Wayne Probate Judge, 130 Mich. 
 169, 89 N. W. 728, holding exemption from inheritance tax applies to entire 
 estate, and not to each share. 
 
 Disapproved in Howell's Estate, 147 Pa. 168, 23 Atl. 403, Affirming 48 
 Phila. Leg. Int. 296, 10 Pa. Co. Ct. 238, 28 W. N. C. 275, holding collateral in- 
 heritance tax of 1887 to be ascertained by aggregate of decedent's taxable estate; 
 McGhee v. State, 105 Iowa, 14, 74 N. W. 695, holding collateral inheritance tax 
 on estates in excess of $1,000 applies to aggregate of decedent's taxable estate. 
 Time statutes take effect. 
 
 Cited in Lane v. Kolb, 92 Ala. 661, 9 So. 873 (dissenting opinion), majority 
 holding statute changing appointive to elective office, providing dates of elec- 
 tion, did not take effect until date of first election named; State v. Williams, 
 173 Ind. 417, 140 Am. St. Rep 261, 90 N. E. 754, 21 Ann. Cas. 986, holding that 
 phrase "after the passage of this act" in local option law is used in technical 
 sense and means time when law took effect. 
 
 Distinguished in People ex rel. Onondaga County Sav. Bank v. Butler, 147 
 N. Y. 176, 41 N. E. 416, holding salary act taking effect on certain date ap- 
 plied to official taking office on that date. 
 Statutory construction. 
 
 Cited in People v. England, 91 Hun, 156, 36 N. Y. Supp. 534, holding in- 
 tent of legislature governs in determining effect on previous offense of stat- 
 ute changing punishment for crime. 
 Constitutionality of succession or transfer tax statutes. 
 
 Cited in State v. Alston, 94 Tenn. 681, 28 L. R. A. 180, 30 S. W. 750, holding 
 inheritance tax constitutional. 
 
 Cited in footnotes to State v. Hamlin, 25 L. R. A. 632, which holds succes- 
 sion tax valid; State ex rel. Schwartz v. Ferris, 30 L. R. A. 218, which holda 
 void, for lack of uniformity, act exempting estates less than $20,000 in value ; 
 Ferry v. Campbell, 50 L. R. A. 92, which holds succession tax void for want 
 of notice of proceedings to fix amount of tax; Billings v. People, 59 L. R. A. 
 807, which sustains transfer tax on lineal descendants to whom life estate given 
 with remainder to lineal descendants, but exempting lineal descendants tak- 
 ing fee. 
 
 Cited in notes (12 L.R.A. 402, 407) on right of legislature to impose succession 
 and collateral inheritance taxes; (41 Am. St. Rep. 583) on constitutionality of 
 collateral inheritance tax law. 
 
 2 L. R. A. 828, JOHNSTON v. WALU1S, 112 N. Y. 230, 8 Am. St. Rep. 742 
 
 19 N. E. 653. 
 Suits by or against foreign executors, etc. 
 
 Cited in Flandrow v. Hammond, 13 App. Div. 326, 43 N. Y. Supp. 143, hold- 
 ing suit cannot be continued against foreign executrix appointed pending suit 
 to recover money paid deceased without consideration; Le Fevre v. Matthews, 
 39 App. Div. 234. 57 N. V. Supp. 128, holding foreign receiver subject to ac- 
 tion by resident on agreement with former in official capacity within state; 
 
401 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 829 
 
 Lee v. Terbell, 40 Fed. 44, holding special commissioners appointed by for- 
 eign court to sell realty may maintain action on purchase-money bonds taken in 
 official capacity, without obtaining ancillary letters; Hopper v. Hopper, 125 
 N. Y. 403, 12 L. R. A. 238, 26 N. E. 457, holding foreign executor' sub- 
 jects himself to suit as domestic executor by taking out local ancillary 
 letters of administration; Hentz v. Phillips, 23 Abb. N. C. 22 
 6 N. Y. Supp. 16, holding foreign administratrix not proper party to 
 proceeding by creditors of decedent to reach fund derived from sale of realty 
 in jurisdiction; Jefferson v. Beall, 117 Ala. 439, 67 Am. St. Rep. 177, 23 So. 44, 
 holding judgment in foreign jurisdiction against local administrator in rep- 
 resentative capacity void and unenforceable in local courts; De Coppet v. Cone, 
 199 N. Y. 61, 139 Am. St. Rep. 844, 92 N. E. 411, 20 Ann. Cas 841, holding that 
 ordinarily action at law will not lie against foreign executor, but usually suit 
 in equity is maintainable; Hopper v. Hopper, 20 N. Y. Civ. Proc. Rep. 105, holding 
 a foreign executor to whom ancillary letters have been issued may be sued here; 
 McGrath v. Weiller, 98 App. Div. 294, 90 X. Y. Supp. 420; Courtney v Pradt, 87 
 C. C. A. 463, 160 Fed. 568, on the maintenance of actions against foreign ad- 
 ministrator and executors. 
 
 Cited in notes (9 L. R. A. 218) on ancillary administration of estates; (9 
 L. R. A. 245, 246) on power and authority of foreign executors and adminis- 
 trators; (27 L. R. A. 102) on general rule as to foreign judgments against ex- 
 ecutor or administrator; (35 L.R.A.(N.S.) 335) on right to sue executor or ad- 
 ministrator, on his bond, in state other than of appointment; (45 Am. St. Rep. 
 672) on suits by or against foreign executors; (2 Eng. Rul Cas. 91) on right of 
 foreign executor to sue on judgment in another state, without administration 
 there. 
 Agreements in bebalf of estate. 
 
 Cited in Eames v. Bagg, 8 App. Div. 545, 40 N. Y. Supp. 858, holding stipu- 
 lation by assignee for creditors, in action on promissory note, binding upon 
 estate; Sanford v. Story, 15 Misc. 542, 38 N. Y. Supp. 104, holding executor's 
 agreement to release debt may be specifically enforced. 
 
 Cited in note (52 Am. St. Rep. 119) on liabilities of estate of decedents on 
 contracts of personal representatives. 
 
 2 L. R. A. 829, DIEFFENBACH v. ROCH, 112 N. Y. 621, 20 N. E. 560. 
 Limitation of justices' judgment. 
 
 Cited in Herrman v. Stalp, 15 Daly, 293, 6 N. Y. Supp. 514, holding exe- 
 cution, as well as action on docketed judgment, barred; Warner v. Bartle, 22 
 Misc. 490, 50 N. Y. Supp. 940, holding bar of Code Civ. Proc. 382, applies to 
 ''special proceedings," as well as to "action" to enforce judgment; Re Warner, 
 39 App. Div. 93, 56 N. Y. Supp. 585, holding special proceeding to enforce 
 docketed judgment of justice of peace barred by six years' limitation to 
 "action" thereon; Re Depuy, 28 N. Y. S. R. 42, 8 N. Y. Supp. 229, holding pro- 
 ceeding in surrogate's court to enforce judgment barred as an "action," within 
 meaning of Code Civ. Proc. 382; Re Guttrotf, 39 Misc. 484, 80 N. Y. Supp. 219, 
 holding judgment of city district court, docketed in county clerk's office, barred 
 in six years; Pierce v. Davidson, 58 Mo. App. Ill, holding that filing of jus- 
 tice's judgment in office of court of record does not increase period of limita- 
 tion; Gray v. Seeber, 53 Hun, 613, 6 N. Y. Supp. 802, holding Code Civ. Proc. 
 376, which declares presumption of payment of judgment from lapse of twenty 
 years to be statute of limitations; Agar v. Tibbets, 56 Hun, 276, 9 N. Y. Supp. 
 591, holding plaintiffs, discontinuing in consequence of unexpected decision, 
 bound to pay costs to date of application. 
 L.R.A. Au. Vol. I. 26. 
 
2 L.R.A. 829] L. R. A. CASES AS AUTHORITIES. 402 
 
 Cited in note (8 L. R. A. 481) on application of statute of limitations to 
 equitable actions. 
 
 Cited as nullified in Andrews v. Mastin, 22 Misc. 265, 49 N. Y. Supp. 1118, 
 holding duration of lien runs, by virtue of chap. 342, Laws 1892, from date 
 of filing transcript. 
 
 Distinguished in Raphael v. Mencke, 28 App. Div. 92, 50 N. Y. Supp. 
 920; Agar v. Curtiss, 8 App. Div. 339, 40 N. Y. Supp. 815; Bolt v. Hauser, 57 
 Hun, 568, 11 N. Y. Supp. 366; Becker v. Porter, 17 App. Div. 184; Brown 
 v. Hyman, 27 N. Y. Supp. 437; Townsend v. Tolhurst, 57 Hun, 42. 10 X. Y. 
 Supp. 378; Anderson v. Porter, 7 Misc. 220, 27 N. Y. Supp. 646, holding 
 execution may issue on municipal or district court judgment docketed in 
 clerk's office, though action thereon barred; Bolt v. Hauser, 10 X. Y. Supp. 
 398, holding supplementary proceedings available to enforce judgment after 
 expiration of six years within which action thereon allowed. 
 Effect of docketing judgment in clerk's office. 
 
 Cited in Re Phelps, 6 Misc. 402, 1 Power, 545, 56 N. Y. S. R. 629, 26 X. Y. 
 Supp. 774, holding only effect of docketing justice's judgment in county clerk's 
 office to enlarge scope of enforcement; Daniels v. Southard, 23 Misc. 238. 51 
 N. Y. Supp. 1136, holding sphere of enforcement of justice's judgment enlarged 
 by docketing with clerk, to include all processes available in case of county- 
 court judgment; Andrews v. Mastin, 22 Misc. 265, 49 N. Y. Supp. 1118, holding 
 no additional force as lien on realty given to docketed transcript by chap. 342, 
 Laws 1892, extending period of duration : Baldinger v. Turkowsky, 36 Misc. 822. 
 74 N. Y. Supp. 897, holding docketing of district court judgment in clerk's of- 
 fice does not render necessary leave to sue thereon in municipal court; Harris 
 v. Clark, 65 Hun, 363, 20 N. Y. Supp. 232, holding prohibition of Code Civ. 
 Proc. 1913, against action on judgment rendered in court of record, not 
 applicable to judgment of justice, though docketed in clerk's office; Johnson 
 v. Manning, 75 App. Div. 286, 78 N. \. Supp. 96, holding while supreme court 
 has not power to vacate municipal-court judgment docketed with county clerk, 
 it may set aside proceedings to enforce same; Erb v. Hendricks Co. 50 W. Va. 
 32, 40 S. E. 338, raising, without deciding, question whether justice of peace 
 may issue execution on judgment certified to clerk of circuit court; Phillips v. 
 Xorton, 18 S. D. 539, 101 N. W. 727, on the effect of filing and docketing of a 
 transcript of a judgment rendered in justice court; Holton v. Schmarback, 15 
 N. D. 42, 106 N. W. 36, on the effect of filing of transcript of justice court judg- 
 ment to district court. 
 
 Distinguished in Sill Stove Works v. Scott, 62 App. Div. 571, 71 X. Y. Supp. 
 181, holding jurisdiction of justice prima facie established by proof of filing 
 transcript of judgment in county clerk's office. 
 Statutes of limitation. 
 
 Cited in Cobb v. Houston, 117 Mo. App. 653, 94 S W. 299, holding a statute 
 providing that every judgment should be presumed to be paid after twenty years 
 from rendition thereof, was not one of limitation. 
 
 Cited in note (23 Am. St. Rep. 500) on running of limitations against judg- 
 ment. 
 
 2 L. R. A. 832, HUXTER v. COOPERSTOWN & S. VALLEY R. CO. 112 X. Y. 
 
 371, 8 Am. St. Rep. 752.. 19 X. E. 820. 
 
 Subsequent appeal in 126 X. Y. 24, 12 L. R. A. 430, 26 X. E. 958. 
 Contributory negligence on or about moving cars. 
 
 Cited in Myers v. Xew York C. & H. R. R. Co. 82 Hun, 38, 31 X. Y. Supp. 
 153, holding party attempting to board moving train after it has left sta- 
 
403 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 832 
 
 lion guilty of contributory negligence; Walthers v. Chicago & N. W. R. Co. 
 72 111. App. 363, holding it negligence per se for party to attempt to board 
 moving train at point beyond platform; Scully v. New York, L. E. & W. 
 R. Co. 80 Hun, 199. 30 N. Y. Supp. 61, holding passenger alighting in disre- 
 gard of conductor's warning, from train moving 6 to 10 miles an hour after 
 passing station, guilty of contributory negligence; Lewis v. Delaware & H. 
 Canal Co. 80 Hun, 195, 30 N. Y. Supp. 28, holding it negligence per se for 
 passenger to alight from moving train on wrong side, though at conductor's 
 suggestion; Worthington v. Central Vermont R. Co. 64 Vt. 114, 15 L. R. A. 
 328, 23 Atl. 590, holding negligence per se to stand on platform of rapidly 
 moving train on rough road, though interior of car crowded; Redmond v. Rome, 
 W. & O. R. Co. 31 N. Y. S. R. 368, 10 N. Y. Supp. 330, holding conductor stand- 
 ing on tracks in car yard watching brakeman, struck by backing engine, 
 guilty of contributory negligence; Salmon v. New York C. & H. R. R. Co. 1 
 Silv. Sup. Ct. 240, 5 N. Y. Supp. 225, holding pedestrian crossing tracks in 
 disregard of attendant's warning, and lowered gates, guilty of contributory 
 negligence; Sias v. Rochester R. Co. 92 Hun, 148, 36 N. Y. Supp. 378, holding 
 it not negligence per se to ride upon platform or to lean out beyond side of 
 trolley car; Walker v. Vicksburg, S. & P. R. Co. 41 La. Ann. 806, 7 L. R. A. 
 117, 17 Am. St. Rep. 417, 6 So. 916 (dissenting opinion), majority holding it 
 contributory negligence to alight from train moving from station before giving 
 time for passengers to alight; Bertram v. Peoples R. Co. 154 Mo. 665, 52 S. W. 
 1119 (dissenting opinion), majority holding it not negligence per se to board 
 slowly moving grip car near pile of bricks; Whitfield v. Atlantic Coast Line R. 
 Co. 147 X. C. 239, 60 S. E. 1126, holding a brakeman off duty and riding home, 
 who attempts to board a train moving at the rate of from ten to fifteen miles an 
 hour and is injured, is guilty of contributory negligence; Jackson v. Greene. 134 
 App. Div. 918, 118 X. Y. Supp. 930, holding decedent was guilty of such con- 
 tributory negligence in attempting to get out of an elevator where it stopped 
 between floors when if he had remained in it, it would have been repaired in a 
 short time as he well knew; Salmon v. Xew York C. & H. R. Co. 1 Silv. Sup. Ct. 
 240, 5 X. Y. Supp. 225, on contributory negligence as a defence; Jackson v. 
 Greene, 201 X. Y. 79, 93 N. E. 1107, holding operator of elevator negligent in 
 trying to crawl out of elevator stopped between two floors 
 
 Cited in footnote to Western Maryland R. Co. v. Herold, 14 L. R. A. 75, 
 which holds entering of car with brakes set before time for starting not 
 negligence per se. 
 
 Cited in notes (8 L. R. A. 674) on contributory negligence of passenger; (11 
 L. R. A. 396) on passenger's negligence in alighting from moving train; (21 
 L.R.A. 356) on injuries in boarding moving train; (10 Am. St. Rep. 883) on 
 what constitutes contributory negligence; (17 Am. St. Rep. 425) on contributory 
 negligence in alighting from moving train. 
 
 Distinguished in Lewis v. Delaware & H. Canal Co. 145 X. Y. 516, 40 N. K. 
 248, holding it not contributory negligence, as matter >of law, to alight from 
 slowly moving train at request of conductor; Distler v. Long Island R. Co. 
 151 X. Y. 427 35 L. R. A. 764, 765, 45 N. E. 937, holding it not negligence per se 
 to board train moving at rate of 2 or 3 miles an hour at invitation of conductor; 
 Weiler v. Manhattan R. Co. 53 Hun, 377, 6 N. Y. Supp. 320, holding it not 
 negligence per se to alight, at conductor's invitation, from blocked elevated train 
 at short distance from station, and proceed along narrow walk to reach stairway ; 
 Van Fleet v. Xew York C. & H. R. R. Co. 27 N. Y. S. R. 67, 7 N. Y. Supp. 630, 
 holding it not negligence per se for track hand to board slowly moving train 
 under order of foreman to "hurry up;" Reid v. New York, 68 Hun, 112, 22 
 
2 L.R.A. 832] L. R. A. CASES AS AUTHORITIES. 404 
 
 N. Y. Supp. 623, holding it not negligence per se for passenger of cable car to 
 get off in response to conductor's warning to "hurry up or he would start;" 
 Northern P. R. Co. v. Egeland, 163 U. S. 99, 41 L. ed. 86, 16 Sup. Ct. Rep. 
 975, Affirming 5 C. C. A. 473, 12 U. S. App. 271, 56 Fed. 202, holding it not 
 negligence per se for track laborer to jump, in compliance with conductor's 
 orders, from train moving 4 miles an hour. 
 
 Disapproved in Murphy v. St. Louis, 1. M. & S. R. Co. 43 Mo. App. 349, 
 holding it not negligence per se to board slowly moving train at invitation 
 of conductor. 
 Evidence as to speed of trains. 
 
 Cited in note (34 L.R.A.(N.S.) 795) on evidence as to speed of trains and 
 hand cars. 
 
 2 L. R. A. 836, EAST BIRMINGHAM LAND CO. v. DENNIS, 85 Ala. 565, 
 
 7 Am. St. Rep. 73, 5 So. 317. 
 T'saiit- contrary to legal right. 
 
 Cited in Davis v. State, 92 Ala. 26, 9 So. 616, holding custom of parties 
 to enter neighbor's house uninvited not admissible in evidence to justify tres- 
 pass against express orders to keep out; Becker v. Hall, 116 Iowa, 593, 56 
 L. R. A. 575, 88 N. W. 324, holding unreasonable custom as to appropriation of 
 ice in public waters not sustained; Pennsylvania R. Co. v. Naive, 112 Tenn. 258, 
 64 L.R.A. 448, 79 S. W. 124, holding custom to suspend business on 4th of 
 July excuses carrier from immediately notifying consignee of arrival of per- 
 ishable goods; Pennsylvania R. Co. v. Naive, 112 Tenn. 258, 64 L.R.A. 448, 79 S. 
 W. 124, on the admissibility of evidence of custom or usage. 
 
 Cited in notes (10 L. R. A. 785) on validity of usage; (3 L. R. A. 860) 
 on binding force of usage and custom; (10 L. R. A. 366) on custom and usage 
 on question of negligence; (13 L. R. A. 438, 439) on usage and custom in con- 
 flict with rules of law; (8 Eng. Rul. Cas. 336) on necessity that custom be limited, 
 certain, reasonable, and of lawful origin. 
 Fraudulent transfer of stock. 
 
 Cited in Farmers' Bank v. Diebold Safe & Lock Co. 66 Ohio St. 377, 58 L. 
 R. A. 624, 90 Am. St. Rep. 586, 64 N. E. 518, holding owner of stock assigned in 
 blank by original holder entitled thereto as against bona fide pledgee for value 
 from one fraudulently obtaining possession of same without assignee's negli- 
 gence; National Safe Deposit, Sav. & T. Co. v. Hibbs, 32 App. D. C. 470, on 
 bona fide purchaser of regularly endorsed certificates of stock which have been 
 stolen as acquiring no title. 
 
 Cited in note (19 L.R.A.(NS.) Ill) on rights of owner of negotiable paper, 
 payable to bearer, or indorsed in blank, as against bona fide purchaser from one 
 unlawfully in possession. 
 
 Distinguished in Winter v. Montgomery Gaslight Co. 89 Ala. 550, 7 So. 773, 
 holding purchase in good faith for value of stock sold in breach of trust, 
 not apparent from face of certificate, good as against beneficiary, though 
 transfer not registered; Nelson v. Owen, 113 Ala. 380, 21 So. 75, holding pur- 
 chaser for value without notice from pledgee, of stock indorsed in blank by 
 pledgeor, owner thereof as against pledgeor. 
 
 2 L. R. A. 839, ST. LOUIS, A. & T. R. CO. v. WELCH, 72 Tex. 298, 10 S. W. 
 
 529. 
 Who are fellow servants. 
 
 Cited in Texas & P. R. Co. v. Rogers, 6 C. C. A. 406, 13 U. S. App. 547, 57 
 Fed. 381, holding laborer acting as temporary foreman fellow servant with 
 
405 L - R - A. CASES AS AUTHORITIES. [2 L.R.A :;<> 
 
 laborer in gang; Ell v. Northern P. R. Co. 1 N. D. 349, 12 L R A 101 26 
 Am. St. Rep. 621, 48 N. W. 222, holding train hand and foreman fellow aery 
 ants; St. Louis, S. W. R. Co. v. Henson, 61 Ark. 307, 32 S. W. 1079, holding 
 foreman of bridge-building gang and engineer, fellow servants; Austin & X \\ 
 R. Co. v. Beatty, 6 Tex. Civ. App. 652, 24 S. W. 934, holding brakeman and 
 man employed to nail numbers on bridges fellow servants; Galveston, H & S 
 A. R. Co. v. Farmer, 73 Tex. 87, 11 S. W. 156, holding brakeman and station 
 agent fellow servants; Grattis v. Kansas City, P. & G. R. Co. 153 Mo 406 
 48 L. R. A. 408, 77 Am. St. Rep. 721, 55 S. W. 108, holding fireman, conductor! 
 and engineer fellow servants; Wells, Fargo & Co. v. Page, 29 Tex. Civ. App. 
 490, 68 S. W. 528, holding express messenger and guard fellow servants; 
 Direct Nav. Co. v. Anderson, 29 Tex. Civ. App. 67, 69 S. W. 174, holding deck 
 hands on tugboat, serving in different watches, fellow servants; International 
 & G. N. R. Co. v. Ryan, 82 Tex. 570, 18 S. W. 219, holding carpenter at rest 
 in caboose after working hours, fellow servant with switchman; Dishon v. 
 Cincinnati, N. O. & T. P. R. Co. 126 Fed. 200, holding section hand, living 
 in section house, leaving it after working hours, a fellow servant of train 
 operatives by whose negligence he was injured; Oriental Investment Co. v. 
 Sline,. 17 Tex. Civ. App. 695, 41 S. W. 130, holding chambermaid and elevator 
 man fellow servants in hotel where both employed; Consumers' Cotton Oil Co. 
 v. Jonte, 36 Tex. Civ. App. 24, 80 S. W. 847, holding plaintiff employed in a cotton 
 gin as a mill wright was a fellow servant with one employed to throw bales of 
 cotton from an upper story; Missouri, K. & T. R. Co. v. Hollan, 49 Tex. Civ. App. 
 61, 107 S. W 642, as an authority as to employees of common master may be said 
 to be fellow servants. 
 
 Cited in notes (5 L. R. A. 735) on who are fellow servants; (18 L. R. A. 
 796) on what constitutes "common employment;" (50 L. R. A. 426) on 
 diversity of duty as affecting common employment; (50 L. R. A. 428) on con- 
 tiguity as factor in common employment; (18 L. R. A. 797) on servants not on 
 duty as fellow servants; (50 L. R. A. 462) on control by master as factor 
 in determination of relation of master and servant; (50 L. R. A. 433) on il- 
 lustrations of common employment; (23 Am. St. Rep. 165) on master's liability 
 for negligence of fellow servants. 
 
 Distinguished in International & G. N. R. Co. v. Still, 40 Tex. Civ. App. 25, 88 
 S. W. 257, holding by reason of statute where a bridge gang was divided into 
 two squads in the repairing of cotton platform and a member of one squad was 
 injured through the negligence of a member of the other, such persons were not 
 fellow servants. 
 When employee Is on duty. 
 
 Cited in St. Clair v. St. Louis & S F. R. Co. 122 Mo. App. 526, 99 S. W. 775, 
 holding a foreman required to assist in clearing away wrecks was while on his 
 way to head quarters after the performance of such a task still on duty and 
 retained his relationship as defendant's servant; Moyse v. Northern P. R. Co. 41 
 Mont. 284, 108 Pac. 1062, holding railroad liable for injury to freight conductor 
 sleeping in caboose on sidetrack, subject to be called on duty; Missouri, K. & T. 
 R. Co. v. Hendricks, 49 Tex. Civ. App. 323, 108 S. W. 745, holding plaintiff a brake- 
 man employed by the day who upon going to work and finds his train gone and 
 that his services were not required for the day, was not on duty when injured by 
 a train while walking on the track; Missouri, K. & T. R. Co. v. Pennewell, 50 
 Tex. Civ. App. 542, 110 S. W. 758, holding the fact that a switchman standing 
 by track and not just then engaged in switching, seeing a forward signal steps 
 on track and is injured by the train moving backward did not by his act sever 
 his relationship as a servant; Harvey v. Texas & P. R. Co. 92 C. C. A. 237, 166 
 
2 L.R.A. 839] L. R. A. CASES AS AUTHORITIES. 406 
 
 Fed. 398, holding an engine hostler who was injured while sitting in the window 
 of an engine cab while on way to help coal the engine was at the time in the 
 course of his employment. 
 
 Cited in note (12 L.R.A.(N.S.) 855) on existence of relationship where servant 
 goes on master's premises at other than hours of actual labor 
 Liability of master for injury to servant. 
 
 Cited in Houston, E. & W. T. R. Co. v. McHale, 47 Tex. Civ. App. 366, 105 S. 
 W. 1149, holding defendant company was liable for the death of a foreman of a 
 switching crew where while awaiting the passing of a train a door of a car felf 
 on him, defendant having knowledge of defective condition of car; Texas & P. 
 R. Co. v. Johnson, 48 Tex. Civ. App. 143, 106 S. W. 773, holding defendant railroad 
 company were liable for the death of an engineer because of the defective con- 
 dition of a round house although at time of accident he was not engaged in the 
 performance of his duties but being in a position and ready to do so 
 
 2 L. R. A. 841, MERRILL LODGE, NO. 299, I. O. G. T. v. ELLSWORTH, 78 
 
 Cal. 166, 20 Pac. 399. 
 Mutual benefit association. 
 
 Cited in notes (7 L. R. A. 189) on transfer of mutual benefit certificate; (4 
 L. R. A. 382) on benefit association, enlarged powers conferred by statute. 
 Rights of local lodges. 
 
 Cited in Grand Lodge, A. O. U. W. v. Grand Lodge, C. 81 Conn. 209, 70 Atl. 61 7 r 
 holding on the division of a lodge by the order of the grand lodge equity wil} 
 accord to the separated members an accounting for the funds and property in/ 
 the hands of the others. 
 
 2 L. R. A. 843, FLUKER v. GEORGIA R. & BKG. CO. 81 Ga. 461, 12 Am. St. 
 
 Rep. 328, 8 S. E. 529. 
 Dominion of railroad company over its property. 
 
 Cited in Kates v. Atlanta Baggage & Cab Co. 107 Ga. 646, 46 L. R. A. 435. 
 34 S. E. 372, holding railroad company may grant exclusive privilege of en- 
 tering depot for purpose of handling baggage on claim checks; Brown v. 
 New York C. & H. R. R. Co. 75 Hun, 362, 27 N. Y. Supp. 69, holding railroad 
 company may grant exclusive privilege to cab company of soliciting patronage 
 on trains and in yards of railroad; Hart v. Atlanta Terminal Co. 128 Ga. 763, 
 58 S. E. 452; Atlanta Terminal Co. v. American Baggage & Transfer Co. 125 
 Ga. 688, 54 S. E. 711, holding terminal company might grant one of competing 
 baggage companies the right to space for a check room in station and exclude an- 
 other company from such privilege; Lewis v. Weatherford, M. W. & X. R. Co. 
 36 Tex. Civ. App. 51, 81 S. W. Ill, holding a carrier might make a regulation 
 giving one individual the exclusive right to solicit on its trains the transfer 
 business of its passengers; Ft. Worth & D. City R. Co. v. State. 99 Tex. 44, 70 
 L.R.A. 957, 87 S. W. 336, holding a railroad company might grant to a sleeping 
 car company the exclusive right for a stipulated time of furnishing sleeping cars 
 for use on its lines; Oregon Short Line R. Co. v. Davidson, 33 Utah, 376, 16 
 L.RA.(N.S.) 783, 94 Pac. 10, 14 A. & E. Ann. Gas. 489, holding railroad company 
 might grant to a particular hackman the exclusive right of soliciting business on 
 the station grounds. 
 
 Cited in note (66 L.R.A. 587) on right of railroad to keep trespassers from 
 track or right of way. 
 
 Distinguished in State v. Reed, 76 Miss. 222, 43 L. R. A. 136, 71 Am. St. 
 Rep. 528, 24 So. 308, holding grant by railroad company to hackman of ex- 
 clusive privilege of entering depot grounds to solicit patronage unlawful ; Mem- 
 
407 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 844 
 
 phis Xews Pub. Co. v. Southern R. Co. 110 Tenn. 706, 63 L.R.A. 155, 75 S. W. 
 941, denying right of railroad company to exclude others from use of newspaper 
 train established upon certain publisher's guarantee of minimum revenue; Mem- 
 phis News Pub. Co. v. Southern R. Co. 110 Tenn. 706, 63 L.R.A. 155, 75 S. W. 
 941, holding a railroad company entering into a contract with newspaper to run 
 a special train carrying only the newspaper of such company cannot refuse to 
 carry the paper of a rival company who is willing to agree to all the terms 
 made with the other company. 
 Over depot grounds. 
 
 Cited in Cosgrove v. Augusta, 103 Ga. 839, 840, 42 L. R. A. 714, 68 Am. St. 
 Rep. 149, 31 S. E. 445, holding city ordinance prohibiting drummers and cab- 
 men from entering union passage depot to solicit custom invalid; Godbout v. 
 St. Paul Union Depot Co. 79 Minn. 198, 47 L. R. A. 536, 81 N. W. 835, holding 
 railroad company may prohibit hackman from soliciting patronage within 
 depot building; Lucas v. Herbert, 148 Ind. 66, 37 L. R. A. 377, 47 N. E. 146j 
 holding railroad company may designate places cabs and omnibuses shall oc- 
 cupy on depot grounds; Donovan v. Pennsylvania Co. 61 L. R. A. 143, 57 C. 
 C. A. 364, 120 Fed. 217, and New York, N. H. & H. R. Co. v. Bork, 23 R. I. 
 224. 49 Atl. 965, holding railroad company may exclude from station all hack- 
 men soliciting passengers without its license; Hedding v. Gallagher, 72 N. H. 
 394, 64 L. R. A. 821, 57 Atl. 225, holding railroad company may grant to 
 teamster exclusive right to solicit baggage in depot. 
 
 Cited in notes (8 L.R.A 754) on dominion of railroad company over its stations 
 and grounds; (16 L.R.A.(N.S.) 778) on right to discriminate between solicitors 
 of patronage at depots, wharves, etc.; (22 Am. St. Rep. 702) on discrimination 
 by carrier between hackmen or other solicitors. 
 Prohibition against use of elevator. 
 
 Cited in Springer v. Byram, 137 Ind. 27, 23 L. R. A. 250, 45 Am. St. Rep. 
 159. 36 X. E. 361, holding proprietor of elevator not bound to carry newsboy, 
 although permitted to enter building. 
 Revocability of license. 
 
 Cited in note (16 Eng. Rul. Cas. 76) on revocability of license. 
 Relationship of master and servant. 
 
 Cited in note (22 Am. St. Rep. 462) as to when relation of master and serv- 
 ant exists. 
 
 2 L. R. A. 844. RITTLER v. SMITH, 70 Md. 261, 16 Atl. 890. 
 Insurance; insuruble Interest. 
 
 Cited in Peoria Life Asso v. Hines, 132 111. App. 647, on creditor as having 
 an insurable interest in debtor's life. 
 
 Cited in footnotes to Adams v. Reed, 35 L. R. A. 692, which holds that woman 
 has insurable interest in life of son-in-law; Kurd v. Doty, 21 L. R. A. 746, 
 which denies right of trustee receiving proceeds of insurance policy to re- 
 fuse payment to beneficiaries as having no insurable interest; Exchange Bank 
 v. Loh, 44 L. R. A. 372, which holds creditor's insurable interest limited 
 to amount of indebtedness. 
 
 Cited in notes (6 L. R. A. 136, 7 L. R. A. 219) on who has insurable in- 
 terest in life of another; (13 L. R. A. 433, 434) on insurable interest essen- 
 tial to validity of policy; (128 Am. St. Rep. 313. 315) on life insurance in favor 
 of persons haVing no insurable interest; (13 Eng. Rul. Cas. 400) on insurable 
 interest in life. 
 Nature of contract for life Insurance. 
 
 Cited in Cahill v. Maryland L. Ins. Co. 90 Md. 347, 47 L. R. A. 617, 45 
 
2 L.R.A. 844] L. R. A. CASES AS AUTHORITIES. 408 
 
 Atl. 180, holding contract for life annuity is mere chose in action for pay- 
 ment of money. 
 Endowment policy as asset. 
 
 Cited in Re Slingluff, 106 Fed. 156, holding policy payable to insured if 
 he survives term, and which in terms is assignable, passes to trustee in bank- 
 ruptcy. 
 Assignment of life-insurance policy. 
 
 Cited in Preston v. Connecticut Mut. L. Ins. Co. 95 Md. 114, 51 Atl. 838; Nye 
 v. Grand Lodge, A. O. U. W. 9 Ind. App. 146, 36 N. E. 429; Steinback v. 
 Diepenbrock, 158 N. Y. 30, 44 L. R. A. 419, 70 Am. St. Rep. 424, 52 N. E. 662; 
 Souder v. Home Friendly Soc. 72 Md. 516, 20 Atl. 137, holding assignment 
 to one without insurable interest valid when policy taken out by insured or by 
 one having insurable interest; Clement v. New York L. Ins. Co. 101 Tenn. 36, 
 42 L. R. A. 251, 70 Am. St. Rep. 650, 46 S. W. 561, holding assignment must 
 be in good faith, and not as colorable evasion of wagering contract; Clogg 
 v. McDaniel, 89 Md. 422, 43 Atl. 795, holding assignment to creditor of cer- 
 tificate in benefit association not wager, although debt canceled thereby; Hew- 
 lett v. Home for Incurables, 74 Md. 354, 17 L. R. A. 448, 24 Atl. 324, hold- 
 ing assignment in consideration of advances in money and hospital treatment 
 to beneficiary valid; Farmers & T. Bank v. Johnson, 118 Iowa, 286. 91 X. W. 
 1074, sustaining assignment of insurance policy to beneficiary's creditor, with- 
 out insurable interest in life of insured; Mechanics' Nat. Bank v. CominSj 72 
 M. H. 19, 55 Atl. 191, sustaining assignment of life-insurance policy to se- 
 cure corporation's creditor without insurable interest in insured's life; Brett 
 v. Warnick, 44 Or. 523, 102 Am. St. Rep. 639, 75 Pac. 1061; Rylander v. Allen, 
 125 Ga. 215, 6 L.R.A.(N.S.) 135, 53 S. E. 10^2, 5 A. & E. Ann. Gas. 355, on the 
 assignability of life insurance policies; Fitzgerald v. Rawlings, 114 Md. 475, 79 
 Atl. 915, Ann. Cas. 1912 A, 650, holding valid, assignment of policy by debtor to 
 creditor, stating that it was not made as collateral, but to divest assignor of 
 all interest therein; Rahders v. People's Bank, 113 Minn. 499, 130 N. W. 16, Ann. 
 Cas. 1912 A, 299, holding that policy on partner may be assigned by firm to 
 corporation succeeding to its business; Gordon v. Ware Nat. Bank, 67 L.R.A 554, 
 65 C. C. A. 580, 132 Fed. 447, on an insurable interest as not necessary to the 
 validity of an assignment of a life insurance policy. 
 
 Cited in footnotes to Steinback v. Diepenbrock, 44 L. R. A. 417, and Cham- 
 berlain v. Butler, 54 L. R. A. 338, which sustain right to assign policy to one 
 without insurable interest; Mutual Reserve Fund Life Asso. v. Hurst, 20 L. R. 
 A. 761, which holds assignee's insurable interest as creditor not condition to 
 recovery on policy; Steele v. Catlin, 59 L. R. A. 129, which holds complete gift 
 not made by verbal assignment of life policy accompanied with words indi- 
 cating intent to give, and delivery of policy; Opitz v. Karel, 62 L. R. A. 982, 
 which holds valid gift of proceeds of policy payable to insured's personal rep- 
 resentative made by delivery of policy; American Mut. L. Ins. Co. v. Bertram. 
 64 L. R. A. 935, holding bona fide assignee of life insurance policy taken by 
 one without insurable interest may recover premiums; American Mut. L. Ins. Co. 
 v. Bertram, 64 L.R.A. 935, which sustains right of assignee to recover back pre- 
 miums paid, where the policy, without his knowledge, was void because of lack 
 of insurable interest in the one taking it out; Hinton v. Mutual Reserve Fund L. 
 Asso. 65 LR.A. 161, which holds insurance company not liable on policy issued 
 to wife of mortgagor and assigned by her to mortgagee as security for the debt. 
 
 Cited in notes (9 L.R.A. 660) on assignability of life policies; (3 L.R.A.(N.S.) 
 937) on validity of assignment of interest in life insurance to one paying pre- 
 
409 L - R- A. CASES AS AUTHORITIES. [2 L.R.A. 84* 
 
 miums; (6 L.R.A.(X.S.) 129) on validity of assignment not made as cover for 
 wager policy of life insurance to one having no insurable interest. 
 Amount to vrhich assignee of policy entitled. 
 
 Cited in Hays v. Lapeyre, 48 La. Ann. 758, 35 L. R. A. 654, 19 So. 821 (dis- 
 senting opinion), majority holding assignee not entitled to take more than 
 amount invested. 
 
 Cited in footnotes to Morris v. Georgia Loan, Sav. & Bkg. Co. 46 L. R. A. 
 506, which holds creditor taking assignment of policy entitled to retain from pro- 
 ceeds sufficient to pay debt and advances only; McQuillan v. Mutual Reserve 
 Fund Life Asso. 56 L. R. A. 233, which upholds provision that assigned pol- 
 icy shall be void as to all above debt due assignee. 
 
 Disapproved in Exchange Bank v. Loh, 104 Ga. 453, 44 L. R. A. 376, 31 S. 
 E. 459, and Cheeves v. Anders, 87 Tex. 293, 47 Am. St. Rep. 107, 28 S. W. 274, 
 holding creditor, as assignee, may recover only amount of debt and interest, and 
 amount paid to keep policy alive, with interest. 
 
 2 L. R. A. 847, McCROY v. TONEY, 66 Miss. 233, 5 So. 392. 
 Parol lease for one year. 
 
 Cited in Higgins v. Gager, 65 Ark. 607, 47 S. W. 848, holding parol lease 
 for a year, to begin at subsequent date, valid; Turner v. Trail, 24 Okla. 138 103 
 Pac. 575, holding same. 
 
 Cited in notes (8 LR.A. 221) on tenancy from year to year; (16 Am. St. Rep, 
 765) on verbal lease for more than a year. 
 
 Disapproved in A. G. Rhodes Furniture Co. v. Weeden, 108 Ala. 255, 19 So. 318, 
 holding possession under contract and part payment renders agreement valid. 
 
 2 L. R. A. 848, COFFMAN v. HEAT.NOLE, 85 Va. 459, 17 Am. St. Rep. 69, 
 
 8 S. E. 672. 
 Intention of testator to disinherit heirs. 
 
 Cited in Hurst v. Von De Veld, 158 Mo. 247, 58 S. W. 1056; Zimmerman 
 v. Hafer, 81. Md. 357, 32 Atl. 316; Lawrence v. Smith, 163 111. 166, 45 N. E. 
 259, holding mere intention of testator to disinherit, although clearly ex- 
 pressed, not sufficient; Todd v. Gentry, 109 Ky. 708, 60 S. W. 639, holding will 
 limiting heir's inheritance to $2 does not disinherit him as to property un- 
 disposed of by will; Headrick v. McDowell, 102 Va. 127, 65 L.R.A. 582, 102 Am. 
 St. Rep. 843, 45 S. E. 804, holding an estate descended by operation of law where 
 father died intestate notwithstanding two of his three sons had executed release* 
 for advances. 
 
 Cited in note (11 L. R. A. 767) on "disherison." 
 
 Distinguished in Murphy's Estate, 104 Cal. 567, 38 Pac. 543, upholding 
 holographic will disinheriting part of children, but devising property to others, 
 Requisites of Trill. 
 
 Cited in Mulholland v. Gillan, 25 R. I. 91, 54 Atl. 928, 1 A. & E. Ann. Cas. 366 r 
 holding an instrument might be a will although it made no other disposition of 
 property than the payment of debts; Re Davis, 45 Misc 557, 92 N. Y. Supp. 968 r 
 holding a valid will might be made without the appointment of an executor. 
 
 Cited in note (89 Am. St. Rep. 487) on what constitutes a testamentary writ- 
 ing. 
 
2 L.R.A. 848] L. R. A. CASES AS AUTHORITIES. 410 
 
 2 L. R. A. 853, SOUTH NASHVILLE STREET R. CO. v. MORROW, 87 Tenn. 
 
 406, 11 S. W. 348. 
 Legislative control of taxation. 
 
 Cited in Adams v. Kuykendall, 83 Miss. 594, 35 So. 830, sustaining statute 
 authorizing state revenue agent to assess municipal taxes on property omitted 
 by municipal officers; Pryor v. Bryan, 11 Okla. 366, 66 Pac. 348, holding 
 statute exempting property on Indian reservation from taxation, except for 
 territorial and court funds, not unconstitutional; Cleveland v. United States, 93 
 C. C. A. 274, 166 Fed. 682, on the right to reassess and collect taxes for former 
 years. 
 Taxation of corporation Franchise. 
 
 Cited in State ex rel. Milwaukee Street R. Co. v. Anderson, 90 Wia. 560, 
 63 N. W. 746, holding franchise property, included with personalty, taxable as 
 entirety where statute fails to specify manner of valuation and taxation; Af- 
 rica v. Knoxville, 70 Fed. 734, holding easement in street acquired under 
 railway franchise taxable as property; Detroit Citizens' Street R. Co. v. De- 
 troit, 125 Mich. 687, 84 Am. St. Rep. 589, 85 N. W. 96, holding franchise prop- 
 erty included under statute requiring assessment of street railway "tracks;" 
 Southwestern Teleg. & Teleph. Co. v. San Antonio, 32 Tex. Civ. App. 102, 73 S. 
 W. 859, holding franchises were properly taxable 
 
 Cited in notes (57 L. R. A. 37, 38) on nature of franchises as subjects of 
 taxation; (57 L. R. A. 40) on taxability of franchises; (58 L. R. A. 564) on 
 taxation of corporate franchises; (60 L. R. A. 333) on taxation of franchises, 
 privileges, and occupations; (66 L.R.A. 55) on nature of railroad as realty or 
 personalty. 
 Stock. 
 
 Cited in Memphis v. Union & Planters' Bank, 91 Tenn. 550, 19 S. W. 758, 
 holding that payment of tax on shares of stock "in lieu of all other taxes" 
 under charter exempts capital stock from taxation; Memphis v. Memphis City 
 Bank, 91 Tenn. 578, 19 S. W. 1045, and Memphis v. Home Ins. Co. 91 Tenn. 
 561, 19 S. W. 1042, holding payment of tax on "amount of capital actually 
 paid in" under charter exempts capital stock from further taxation, but not 
 shares of stock; State v. Bank of Commerce, 95 Tenn. 227, 31 S. W. 993, holding 
 tax on capital stock in lieu of all other taxes does not exempt shares of stock, 
 surplus, or undivided profits; German American Sav. Bank v. Burlington, 
 118 Iowa, 86, 91 N. W. 829, holding bank cannot deduct from shares of its stock 
 assessed to it, government bonds held as part of capital. 
 
 Cited in notes (58 L. R. A. 590) on double taxation of corporation and 
 stockholder; (60 L. R. A. 367) on double taxation; (58 L. R. A. 588) on duty 
 of corporation to collect tax on share stock. 
 
 Not followed in Stroh v. Detroit, 131 Mich. 116, 90 N. W. 1029, holding tax- 
 ation of shares in foreign corporation whose property is situated and taxed 
 in state double. 
 Exemptions. 
 
 Cited in Union & Planters' Bank v. Memphis, 101 Tenn. 159, 46 S. W. 557, 
 holding exemption of capital stock constitutional, but not exemption of shart-a 
 of stock; Knoxville & O. R. Co. v. Harris, 99 Tenn. 697, 53 L. R. A. 927, 43 S. 
 W. 115, holding franchise and surplus fund not included in exemption 
 of capital stock, road, fixtures, etc.; Grundy County v. Tennessee 
 Coal, I. & R. Co. 94 Tenn. 304, 29 S. W. 116, holding suit properly brought 
 by owner, if valuation contested, but by collector, if right to assess denied. 
 
411 L. R. A. CASES AS AUTHORITIES. [2 L.R.A. 853 
 
 Valuation for taxation. 
 
 Cited in Carroll v. Alsup, 107 Tenn. 293, 64 S. W. 193, holding actual cash 
 value proper basis of assessment; Reelfoot Lake Levee Dist. v. Dawson, 97 
 Tenn. 161, 34 L. R. A. 728, 36 S. W. 1041, holding Acts 1895, Ex. Sess. chap. 1, * 
 6, 21, unconstitutional for disregard of requirement of taxation according to 
 value; State v. Weyerhauser, 68 Minn. 368, 71 N. W. 265, upholding validity of 
 statute providing for reassessment of undervalued property and enforcement 
 of additional tax; Railroad & Teleph. Co. v. Board of Equalizers, 85 Fed. 
 317, enjoining collection of tax where assessment unequal, though complainants 1 
 property not overvalued. 
 
 Cited in footnote to State ex rel. Davis & S. Lumber Co. v. Pors, 51 L. R 
 A. 917, which authorizes reassessment of personalty omitted in previous vear. 
 though no longer in existence. 
 
 Denied in Galusha v. Wendt, 114 Iowa, 611, 87 N. W. 512, suggesting reas- 
 sessment of mistakenly undervalued property in same year unjust in view of 
 honest diversity of opinion. 
 Definition of "capital stock." 
 
 Cited in Tradesman Pub. Co. v. Knoxville Car Wheel Co. 95 Tenn. 656, 31 
 L. R. A. 600, 49 Am. St. Rep. 943, 32 S. W. 1097, holding limit to amount 
 of capital stock does not restrict amount of property that corporation may 
 acquire. 
 Situs of personalty for taxation. 
 
 Cited in Jack v. Walker, 79 Fed. 142, holding bond and mortgage owned by 
 nonresident not taxable, though in hands of resident agent for collection; Min- 
 neapolis & N. Elevator Co. v. Traill County, 9 N. D. 221, 50 L. R, A. 271, 82 
 N. W. 727, holding elevator company taxable for grain therein, though owners 
 nonresidents; Western Assur. Co. v. Halliday, 61 C. C. A. 273, 126 Fed. 259, up- 
 holding taxation of municipal bonds deposited with superintendent of insurance 
 by foreign insurance company. 
 
 Cited in notes (9 L.R.A.(N.S.) 1104) on debt due nonresident secured upon land 
 within state as subject of inheritance tax; (62 Am. St. Rep. 450, 451, 453, 454, 
 459) on situs of personal property for purposes of taxation. 
 Stock. 
 
 Cited in State v. Kidd, 125 Ala. 421, 28 So. 480, holding situs of stock of for- 
 eign corporation at owner's domicil, unless otherwise fixed by statute; Greves 
 v. Shaw, 173 Mass. 208, 53 N. E. 372, holding stock of domestic corporations and 
 national banking corporations located in state subject to taxation under general 
 tax law; Augusta v. Kimball, 91 Me. 607, 41 L. R, A. 476, 40 Atl. 666, holding 
 stock in foreign corporation held by nonresident trustees for resident beneficiaries 
 not subject to taxation; Judy v. Beckwith, 137 Iowa, 35, 15 L.R.A.(N.S.) 149, 
 114 X W. 565. 15 A. & E. Ann. Cas. 890, holding shares in a foreign corporation 
 held within the state were taxable as personalty; Neilson v. Russell, 76 N. J. L. 
 37, 69 Atl. 476, holding shares of stock in a corporation organized within the 
 state were taxable under a succession tax. 
 
 Cited in note (58 L. R. A. 582) on taxation of stock in domestic corporation 
 held by nonresident. 
 Situs of debts. 
 
 Cited in Dillingham v. Traders' Ins. Co. 120 Tenn. 310, 16 L.R.A.(N.S.) 222, 108 
 S. W. 1148, holding credits owing to a foreign insurance company by its agents 
 for purposes of attachment are situated in the state. 
 
2 L.R.A. 863] L. R. A. CASES AS AUTHORITIES. 412 
 
 2 L. R. A. 863, HAWES v. NICHOLAS, 72 Tex. 481, 10 S. W. 558. 
 Revocation of will. 
 
 Cited in Dougherty v. Holscheider, 40 Tex. Civ. App. 36, 88 S. W. 1113, holding 
 a will might be revoked by a subsequent inconsistent conditional holographic will. 
 
 Cited in footnotes to Miles's Appeal, 36 L. R. A. 176, which holds erasure of 
 specific legacy from will not revocation of legacy; Billington v. Jones, 56 L. R. 
 A. 654, which holds will revoked by writing on it statement that it is void, stating 
 that it is killed, and filing it away; Cutler v. Cutler, 57 L. R. A. 209, which holds 
 will revoked by adopting mutilations by vermin. 
 
 Cited in notes (7 L. R. A. 486) on revocation, revival, and republication of 
 will; (37 L. R. A. 577) on revocation of will by subsequent will, and revival of 
 former by destruction of the latter; (38 L. R. A. 439) on evidence to establish 
 lost or destroyed wills; (28 Am. St. Rep. 355) on revocation of wills; (76 Am. 
 St. Rep. 252) on republication of revoked wills. 
 Revival of earlier will by destruction of later testament. 
 
 Disapproved in Re Gould, 72 Vt. 318, 47 Atl. 1082, holding destruction of sub- 
 sequent revoking will may revive former will without republication, if so in- 
 tended; Stetson v. Stetson, 200 111. 608, 612, 61 L. R. A. 262, 66 N. E. 262, 
 holding destruction of will revives former will therein revoked, if uncanceled; 
 Bates v. Hacking, 29 R. I. 8, 14 L.R.A.(N.S-) 942, 68 Atl. 624, holding the inten- 
 tional destruction of a revoking will leaves the former one in force. 
 
L. R A. CASES AS AUTHORITIES. 
 
 OASES IN 3 L. R. A. 
 
 3 L. R. A. 33, BINKLEY v. FORKXER, 117 Ind. 176, 19 N. E. 753. 
 
 Judgment sustaining demurrer to supplemental answer reversed, and motion 
 for new trial overruled, in 134 Ind. 614, 33 N. E. 619. 
 
 Followed without discussion in Parker Land & Improv. Co. v. Reddick, 18 Ind 
 App. 619, 47 N. E. 848. 
 
 Referred to in Snowhill v. Diamond Plate Glass Co. 39 Ind. App. 243, 77 N. E. 
 412, as a stage of a litigation culminating in a decision on conclusiveness of prior 
 adjudication as to same subject matter but under different state of facts. 
 Intention of parties in determination of nature of fixtures, machinery, 
 etc. 
 
 Cited in Saint Joseph Hydraulic Co. v. Wilson, 133 Ind. 471, 33 N. E. 113, 
 holding fixtures and machinery in mill personalty as between parties to agree- 
 ment for lien thereon; Gordon v. Miller, 28 Ind. App. 615, 63 N. E. 774, hold- 
 ing engine, boiler, machinery, and three-story brick mill resting on stone founda- 
 tion, chattels as between chattel mortgagor and mortgagee, and subject to re- 
 plevin; Cooke v. McNeil, 49 Mo. App. 84, holding furnace resting, without at- 
 tachment, on specially built platform of brick, but intended as permanent if satis- 
 iactory, realty so as to subject house to lien; McFarlane v. Foley, 27 Ind. App. 
 486, 87 Am. St. Rep. 264, 60 N. E. 357, holding chandeliers and bracket lights 
 attached with intent of permanency, realty within mechanics' lien law; Parker 
 Land & Improv. Co. v. Reddick, 18 Ind. App. 619, 47 N. E. 848, holding tank 
 set up on board platform on grade of earth especially built for purpose, pre- 
 sumptively intended as fixture within mechanics' lien law; Parker Land & Im- 
 prov. Co. v. Reddick, 20 Ind. App. 702, 50 X. E. 1125 (dissenting opinion), ma- 
 jority holding to same effect; Button v. Ensley, 21 Ind. App. 49, 69 Am. St. Rep. 
 340, 51 N. E. 380, holding dwelling house resting on blocks realty where in- 
 tended as permanent residence; Fletcher v. Kelly, 88 Iowa, 486, 21 L. R. A. 352, 
 55 X. W. 474, holding brick-veneered building built by lessee under agreement 
 preventing removal at end of term without lessor's permission, realty included 
 in mortgage of lessee's interest; Brownell v. Fuller, 60 Xeb. 564, 83 X. W. 669, 
 holding intention of tenant in placing machinery on premises, question for jury; 
 \Yhite v. Cincinnati, R. & M. R. Co. 34 Ind. App. 292, 71 N. E. 276, holding in a 
 proceeding to condemn for a railroad right of way land on which there are build- 
 ings constituting a manufacturing plant, the machinery necessary to carry on 
 the business of the plant regardless of the manner of its attachment should be 
 considered a part of the freehold in estimating damages 
 
 Cited in footnotes to Atchison, T. & S. F. R. Co. v. Morgan, 4 L. R. A. 284, 
 which holds pump and boiler placed by railroad on another's land under belief 
 that it owns same, personalty; Leonard v. Clough, 16 L. R. A. 305, which holds 
 
 413 
 
3 L.R.A. 33] L. R. A. CASES AS AUTHORITIES. 414 
 
 barn placed by owner on own land on stones resting on surface a fixture; Murray 
 v. Bender, 63 L.R.A. 783, which holds chairs, stage fixtures, and drop curtains 
 annexed to theater to make possible the use of the building, fixtures; Giddings v. 
 Freedley, 65 L.R.A. 327, which holds main belt transmitting power from an engine 
 so annexed to building as to be real estate, to machinery in mill, real estate. 
 
 Cited in notes (19 L. R. A. 442) on effect of agreement to prevent fixtures be- 
 coming part of realty; (15 L. R. A. 57, 60, 62) on efficacy of chattel mortgage on 
 fixtures; (9 L. R. A. 700) on right of tenant to remove fixtures; (4 L. R. A. 
 674; 5 L.R.A. 150, 594; 6 L.R.A. 249; 10 L.R.A. 723) on what are fixtures; (69- 
 L.R.A 893) on things placed on land with intention of annexing but never actu- 
 ally attched, as fixtures; (13 Am. St. Rep. 153) on what are fixtures; (84 Am. 
 St. Rep. 882, 890) on fixtures retaining by agreement the character of personal 
 property. 
 Rights to fixtures Under prior mortgage. 
 
 Cited in German Sav. & L. Soc. v. Weber, 16 Wash. 101, 38 L. R. A. 270, 47 
 Pac. 224, holding contract under which window and door sashes, doors, etc., were 
 furnished, and by which they were to remain personalty, controlling as against 
 prior mortgagee of realty, where freehold not injured by removal; Paine v. Mc- 
 Dowell, 71 Vt. 34, 41 Atl. 1042, holding mill machinery placed in temporary 
 structure for temporary use, under agreement with owner, chattels as against 
 prior mortgagee of realty whose security is not affected by removal; Hurxthal v. 
 Hurxthal, 45 W. Va. 585, 32 S. E. 237, holding mill machinery furnished under 
 chattel mortgage for purchase price, subject, after placed in mill, to prior realty 
 mortgage, thereon, only so far as realty depreciated by reason of its placing ant! 
 removal; Willis v. Hunger Improved Cotton Mach. Mfg. Co. 13 Tex. Civ. App. 
 681, 36 S. W. 1010, holding cotton gin machinery placed in position under chattel 
 mortgage, personalty as against lien of prior vendors of land: J. L. Mott Iron 
 Works v. Middle States Loan. Bldg. & Constr. Co. 17 App. D. C. 597, holding 
 title to steam radiators supplied under contract reserving title to vendor until 
 payment does not pass to purchaser on foreclosure of prior realty mortgage; 
 Tippett v. Barham, 37 L.R.A.(N.S.) 130, 103 C. C. A. 430, 180 Fed. 79, holding 
 that builders of standpipe cannot reserve right of removal as against mortgage 
 of after-acquired property; James Leo Co. v. Jersey City Bill Posting Co. 78 X. 
 J. L. 152, 73 Atl. 1046. holding bona fide purchaser not affected by agreement 
 between grantor and tenant for removal of fence; Cox v. Xew Bern Lighting & 
 Fuel Co. 151 N. C. 67, 134 Am. St. Rep. 966, 65 S. E. 648, holding mortgagee of 
 realty has no equitable claim to chattels subsequently annexed to it; Lazear v. 
 Ohio Valley Steel Foundry Co. 65 W. Va. 112, 63 S. E. 772, as to when chattel 
 mortgage is effectual to preserve the character of the mortgaged chattels as 
 against mortgage of realty executed prior thereto. 
 
 Cited in footnotes to Anderson v. Creamery Package Mfg. Co. 56 L. R. A. 554, 
 which holds mortgage to seller of machinery purchased for use in permanent 
 building superior to existing real-estate mortgage; Neufelder v. Third Street & 
 Suburban R. Co. 53 L. R. A. 601, which holds machinery steadied by bolts and 
 screws fastening it to building not fixture as to mortgagee. 
 
 Cited in notes (37 L.R.A. (X.S.) 122) on rights of seller of chattel, retaining 
 title thereto or a lien thereon, as against existing mortgagees of the realty to 
 which it is affixed by the owner: (109 Am. St. Rep. 446) on mortgagees' right to 
 recover fixtures from third persons; (1 Brit. Rul. Cas. 680) on rights of seller 
 of fixtures, retaining title thereto or a lien thereon, as against purchasers or en- 
 cumbrancers of the realty. 
 
 Distinguished in Fisk v. People's Xat. Bank, 14 Colo. App. 29, 59 Pac. 63, 
 holding heavy machinery fastened to brick foundation sunk in ground, realty as 
 
415 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 37 
 
 between prior mortgagee of land and claimant under chattel mortgage of ma- 
 chinery not executed until after machinery set in place. 
 
 Disapproved in Fuller- Warren Co. v. Harter, 110 Wis. 87, 53 L. R. A. 607, 
 84 Am. St. Rep. 867, 85 N. W. 698, holding hot-air furnace furnished under con- 
 tract reserving title to vendor, realty as to prior mortgagee of realty, and subject 
 to his prior claim. 
 Under subsequent mortgage. 
 
 Cited in Landigan v. Mayer, 32 Or. 250, 51 Pac. 649, holding planer, boiler, 
 engine, and governor, built into mill in construction, realty as against subsequent 
 mortgagee of premises without notice, though personalty between original par- 
 ties by agreement; Alberson v. Elk Creek Min. Co. 39 Or. 559, 65 Pac. 978, hold- 
 ing steel rails, spikes, etc., by construction into mine railroad become realty 
 not subject to subsequent chattel mortgage. 
 Objection for defect of parties. 
 
 Cited in Browning v. Smith, 139 Ind. 291, 37 N. E. 540, holding judgment in 
 foreclosure conclusive upon parties thereto, though owner of equity of redemption 
 not joined, where no objection taken in that suit. 
 Bill of exceptions. 
 
 Distinguished in Smith v. Walker, 7 Ind. App. 618, 34 N. E. 843, holding ref- 
 erence in bill of exceptions to original note read in evidence, not satisfied by 
 exhibit of copy of note attached to complaint; Miller v. Coulter, 156 Ind. 294, 
 59 N. E. 853, holding words "here insert," followed by reference to page and 
 line of transcript where affidavit improperly included, insufficient to incorporate 
 same in record on appeal. 
 
 3 L. R. A. 37, MORROW v. NASHVILLE IROX, STEEL & CHARCOAL CO. 87 
 
 Tenn. 262. 10 Am. St. Rep. 658, 10 S. W. 495. 
 Subscriptions to stock. 
 
 Cited in Ollesheimer v. Thompson Mfg. Co. 44 Mo. App. 183, holding stock- 
 holder liable to creditor for balance of subscription to stock, in spite of ex- 
 traneous agreement to contrary with agent of corporation at time of subscrip- 
 tion; Davis Bros. v. Montgomery Furnace & Chemical Co. 101 Ala. 131, 8 So. 
 496, holding subscribers to bonds with bonus stock arrangement not liable for 
 unpaid subscription to bonds as for unpaid subscription to stock; Knight & W. 
 Co. v. Tampa Sand Line Brick Co. 55 Fla. 742. 46 So. 285, holding liability of 
 stockholders on the insolvency or dissolution of the corporation for the full 
 amount represented by the unpaid stock extends to persons to whom stock has 
 been issued gratuitously as an inducement to purchase bonds of corporation, even 
 though the certificates may recite that such stock is fully paid; McVity v. E. 
 D. Albro Co. 90 App. Div. 124, 86 N. Y. Supp. 144 (dissenting opinion), as to 
 breach of condition subsequent being no ground for rescinding purchase of stock; 
 Weaver Power Co. v. Elk Mountain Mill Co. 154 X. C. 78, 69 S. E. 747, holding 
 that preferred stockholder cannot share pro rata with creditors in corporate 
 assets: Sweeney v. Tennessee C. R. Co. 118 Tenn. 314, 100 S. W. 732, holding in 
 a subscription by a city to stock of a railroad company made under act authoriz- 
 ing cities to subscribe to such stock and prescribing the manner of making the 
 subscription there is no implied condition that the subscription shall be void un- 
 less all the stock of the company is subscribed; Rolapp v. Ogden & X W. R. Co. 
 37 Utah, 556, 110 Pac. 364, holding that corporation cannot issue bonds as 
 bonus to subscribers to stock. 
 
 Cited in notes (38 L. R. A. 494) on bonus stock of corporations; (25 L. R. A. 
 102) on duties and liabilities of promoters of corporation and its members; (3 
 
 I 
 
3 L.R.A. 37] L. R. A. CASES AS AUTHORITIES. 416 
 
 L. R. A. 797) on validity of secret arrangement with subscriber to corporate 
 stock; (4 L.R.A. 521) on vote of corporate stock by proxy; (44 L. ed. U. S. 424) 
 on stock as bonus to purchaser of bonds. 
 
 Distinguished in Rickerson Roller-Mill Co. v. Farrell Foundry & Mach. Co. 
 23 C. C. A. 305, 43 U. S. App. 452, 75 Fed. 558, holding agreement between cor- 
 poration and subscribers for issuance of stock at less than par, valid even as to 
 creditors aware thereof, in the absence of charter or statutory prohibition; Hand- 
 ley v. Stutz, 139 U. S. 434, 35 L. ed. 237, 11 Sup. Ct. Rep. 530, Reversing 41 Fed. 
 546, holding purchaser of stocks and bonds of going concern issued to raise funds 
 to meet debts, not liable for balance of par value to subsequent creditor; Hamlin 
 v. Toledo, St. L. & K. C. R. Co. 36 L. R. A. 831, 24 C. C. A. 278, 47 U. S. App. 422, 
 78 Fed. 671, holding preferred nonvoting stockholders proper parties to creditors 
 and mortgagees' bill to wind up corporation and distribute assets; South Nash- 
 ville Street R. Co. v. Morrow, 87 Tenn. 430, 2 L. R. A. 860, US. W. 348, dictum 
 holding bonds issued to nonresident stockholders of going concern in view of prior 
 remission of dividends not subject to taxation. 
 Ultra vires contract. 
 
 Cited in McCutcheon v. Merz Capsule Co. 31 L. R. A. 420, 19 C. C. A. 115, 37 
 TJ. S. App. 586, 71 Fed. 794, holding contract by corporation to convey all prop- 
 erty to new corporation, taking stock and mortgage bonds in return, ultra vires 
 and void between parties. 
 
 Cited in note (7 Eng. Rul. Cas. 405) on power of corporation to issue fully 
 paid up stock and debentures at a discount. 
 
 3 L. R. A. 43, PUCKETT v. ALEXANDER, 102 N. C. 95, 8 S. E. 767. 
 Effect of statute licensing 1 employment. 
 
 Cited in Cansler v. Penland, 125 N. C. 580, 48 L. R. A. 442, 34 S. E. 683, 
 holding sheriff cannot farm out collection of taxes on commission; Denning v. 
 Yount, 62 Kan. 221, 50 L. R. A. 105, 61 Pac. 803, holding real-estate agents can- 
 not collect commissions for sale made without paying license tax; Kenedy v. 
 Schultz, 6 Tex. Civ. App. 465, 25 S. W. 667, holding physician not complying with 
 law requiring license to practice cannot recover for services. 
 
 Cited in note (16 L. R. A. 425) on effect of failure to procure license for 
 business on validity of contract therein. 
 Effect of contract void at inception. 
 
 Cited in Long v. Rankin, 108 N. C. 336, 12 S. E. 987, holding wife's note in- 
 cipiently void not rendered lawful by promise to pay after discoverture ; Hughes 
 v. Boone, 102 N. C. 164, 9 S. E. 286, holding usurious contract not rendered law- 
 ful by repeal of act making it usurious; McNeill v. Durham & C. R. Co. 135 
 N. C. 734, 47 S. E. 765, 67 L.R.A. 250 (dissenting opinion), majority holding pas- 
 senger's right to damages not affected by contract on back of void pass. 
 
 Cited in notes (53 L.R.A. 370) on moral obligation as consideration for promise; 
 (117 Am. St. Rep. 507) on contracts, consideration for which has partly failed 
 or is partly illegal. 
 
 Distinguished in Riley v. Collins, 16 Colo. App. 283, 64 Pac. 1052, holding 
 record of certificate to practice medicine not necessary to allow recovery for 
 services. 
 Contract in violation of criminal statute. 
 
 Cited in Lloyd v. North Carolina R. Co. 151 N. C. 540, L.R.A (N.S.) , 66 S. 
 E. 604, holding no action will lie thereon. 
 
 Cited in note (12 L.R.A.(N.S.) 591, 594) on validity of contracts in business 
 -which it is misdemeanor to transact. 
 
417 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 44 
 
 3 L. R. A. 44, GREENWOOD v. PHILADELPHIA, W. & B. R. CO. 124 Pa. 572, 
 
 10 Am. St. Rep. 614, 17 Atl. 188. 
 Duty of traveler at crossing* 
 
 Cited in Shirk v. Wabash R. Co. 14 Ind. App. 135, 42 N. E. 656, holding child 
 of twelve years negligent in not heeding ringing of bell and blowing of whistle; 
 Lake Shore & M. S. R. Co. v. Frantz, 127 Pa. 307, 4 L. R. A. 391, 18 Atl. 22, 
 holding duty to stop, look, and listen imperative even if gates at railway crossing 
 up; Aiken v. Pennsylvania R. Co. 130 Pa. 395, 17 Am. St. Rep. 775, 18 Atl. 619, 
 holding failure to stop on sight of approaching train negligence per se; Chicago, 
 R. I. & P. R. Co. v. Crisman, 19 Colo. 34, 34 Pac. 286, holding traveler must 
 exercise caution in approaching railway crossing, though signals not given; Bates 
 v. Fremont, E. & M. Valley R. Co. 4 S. D. 406, 57 N. W. 72, holding use of no 
 precaution at obstructed railway crossing, negligence; Fletcher v. Fitchburg R. 
 Co. 149 Mass. 134, 3 L. R. A. 746, 21 N. E. 302, holding traveler negligent for 
 driving over railway crossing without stopping to look; Richmond v. Chicago & 
 W. M. R. Co. 87 Mich. 383, 49 N. W. 621, holding jury should determine whether 
 deceased negligent in not looking when flagman absent from post; Houghton v. 
 Chicago & G. T. R. Co. 99 Mich. 310, 58 N. W. 314, holding traveler attempting 
 to cross railway with obstructed view, without necessary precaution, negligent; 
 White v. Chicago & N. W. R. Co. 102 Wis. 496, 78 N. W. 585, holding traveler 
 cannot rely upon crossing gates being up; Baltimore & O. R. Co. v. Talmage, 15 
 Ind. App. 220, 43 X. E. 1019, holding deceased negligent in not heeding what she 
 saw and heard; Erie R. Co. v. Schultz, 106 C. C. A. 23, 183 Fed. 675, holding that 
 man driving across railroad after gates are lifted is not contributorily negligent: 
 Ihrig v. Erie R. Co. 210 Pa. 100, 59 Atl. 686, holding failure to stop, look and 
 listen before going on a railroad track is negligence; Koch v. Southern C. R. Co. 
 148 Cal. 680, 4 L.R.A.(N.S.) 523, 113 Am St. Rep. 332, 84 Pac. 176, 7 A. & E. 
 Ann. Cas. 795, holding a person who drives rapidly over a railroad crossing with- 
 out looking at all for an approaching train or taking any precautions as to his 
 own safety is negligent, though the gates at the crossing are open; Lohrey v. 
 Pennsylvania R. Co. 36 Pa. Super. Ct. 290; Union P. R. Co. v. Rosewater, 15 
 L.R.A (X.S.) 808, 84 C. C. A." 616, 157 Fed. 172, 13 A. & E. Ann. Cas 851, holding 
 open gates or a signal from a flagman to cross do not relieve a traveler from the 
 duty to look and listen before entering upon tracks. 
 
 Cited in footnotes to Woehrle v. Minnesota Transfer R. Co. 52 L. R. A. 348, 
 which sustains traveler's right to rely on watchman's absence from crossing; 
 Van Auken v. Chicago & W. M. R. Co. 22 L. R. A. 33, which holds failure to 
 look and listen on dark night does not prevent recovery for injury by engine 
 running backward; Feeney v. Long Island R. Co. 5 L. R. A. 544, which holds 
 traveler not negligent per se in failing to notice that farther gate was coming 
 down before reaching it. 
 
 Cited in notes (7 L. R. A. 318) on traveler's duty to stop, look and listen; 
 (9 L.R.A. 163) on recovery defeated by contributory fault; (13 Am. St. Rep. 93) 
 on signals, etc., at railway crossing. 
 
 Distinguished in Hanlon v. Milwaukee Electric R. & Light Co. 118 Wis. 219, 
 95 X. W. 100. sustaining recovery of driver of hose cart for injuries from collision 
 with street car; Hollinger v. Canadian P. R. W. Co. 21 Ont. Rep. 710. holding 
 where statute provides that engine shall blow whistle or ring bell at crossing and 
 it fails to do so failure of traveller to stop, look and listen is not contributory 
 negligence per se. 
 
 Disapproved in part in Louisville & X. R. Co. v. Webb, 90 Ala. 196. 11 L. R, 
 A. 679, 8 So. 518. holding traveler must use his senses in crossing railway. 
 L.Pv.A. Au Vol. L 27. 
 
 I 
 
3 L.R.A. 41] L. E. A. CASES AS AUTHORITIES. 418 
 
 When contributory negligence for Jnry. 
 
 Cited in Garrity v. Detroit Citizens' Street R. Co. 112 Mich. 372, 37 L. R. A. 
 531, 70 N. W. 1018, holding contributory negligence of one crossing street-railway 
 track, for jury; Ayers v. Pittsburg, C. C. & St. L. R. Co. 201 Pa. 129, 50 Atl. 
 958, holding contributory negligence of one crossing railway and struck by engine 
 after train had passed, for jury. 
 
 3 L. R. A. 46, WINONA v. SCHOOL DIST. NO. 82, 40 Minn. 13, 12 Am. St. Rep. 
 
 687, 41 N. W. 539. 
 Liability for debts after annexation or division. 
 
 Cited in Livingston v. School Dist. No. 7, 9 S. D. 107, 68 N. W. 167, holding 
 that, in absence of specific legislative direction, new school district not liable for 
 proportionate liability on bonds issued in payment for schoolhouse when latter 
 remains in old district; Pepin Twp. v. Sage, 129 Fed. 660, sustaining liability of 
 township and city as successors of village issuing bonds. 
 
 Cited in note (39 L.R.A. (N.S. ) 286) on division of territory of municipality, 
 town or county as affecting assets and liabilities. 
 
 Distinguished in First Nat. Bank v. Beltrami County, 77 Minn. 45, 79 N. W. 
 591, holding "established" county temporarily annexed to "original" county for 
 governmental purposes, not liable after organization for debts created by latter 
 during annexation; Wellcome v. Monticello 3 41 Minn. 139, 42 N. W. 930, holding 
 town where party actually resident at time of pauperism, liable to party sup- 
 porting pauper in adjoining town incorporated subsequent thereto. 
 Title to municipal property, on division. 
 
 Approved in Bloomfield Twp. v. Glen Ridge, 55 N. J. Eq. 508, 37 Atl. 63, 
 holding title and control of sewers does not pass to municipality in which par- 
 tially located, by mere fact of division. 
 
 Cited in Bloomfield Twp. v Glen Ridge, 54 N. J. Eq. 280, 33 Atl. 925, holding 
 where a portion of territory is thrown into the new municipality by the division 
 the power over it by the old corporation is extinct. 
 
 Cited in note (26 L.R.A.(N.S.) 487) on effect of changing school district 
 boundaries upon rights in real property. 
 
 Disapproved in Prescott v. Lennox, 100 Tenn. 593, 47 S. W. 181, holding each 
 portion of municipality on division holds in severalty public property within its 
 limits; Pass School Dist. V. Hollywood City School Dist. 156 Cal. 420, 26 L.R.A. 
 (N.S.) 489, 105 Pac. 122, holding that school land, by legislative change of 
 boundaries included in another school district, becomes property of such district. 
 
 Legislative authority to apportion municipal debts and property on 
 partition. 
 
 Cited in State ex rel. Polk County v. Demann, 83 Minn. 334, 86 N. W. 352, hold- 
 ing apportionment purely question of legislative discretion so long as constitu- 
 tional rights not invaded; Rumsey v. Sauk Centre, 59 Minn. 322, 61 N. W. 330. 
 holding apportionment of town bonded indebtedness between town and subse- 
 quently incorporated village, valid: State ex rel. Marine v. Browne, 56 Minn. 
 273, 57 N. W. 659, holding state has authority, even after division, to apportion 
 taxes levie'd before but not paid until after partition of municipality; Barre v. 
 School Dist. No. 13, 67 Vt. 113, 30 Atl. 807, holding town entitled to fund in 
 hands of school district under statute creating town sole district, though no ex- 
 press disposition of fund made; Coler v. Dwight School Twp. 3 N. D. 261, 28 
 L. R. A. 654, 55 N. W. 587, holding school township properly made primarily 
 liable on school-district bonds by statute, on its substitution in place of school 
 district; Hunter v. Tracy, 104 Minn 385, 116 X. W. 922, holding the legislature 
 has the right to change the boundaries of a municipality without apportioning 
 its indebtedness and providing for the enforcement of the liability thereof. 
 
419 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 83 
 
 Distinguished in Humboldt v. Barnesville. 83 Minn. 220, 86 N. W. 87, holding 
 statutory provision exempting city from liability for debts of town out of which 
 created, covers all corporate debts. 
 Sufficiency of title to act. 
 
 Cited in Winters v. Duluth, 82 Minn. 132, 84 N. W. 788, holding statute "Re- 
 lating to Actions against Cities, etc., for Injuries on Public Grounds," covers 
 provisions for injuries at "public works of any kind;" Ek v. St. Paul Permanent 
 Loan Co. 84 Minn. 249, 87 N. W. 844, holding "To Amend Charter in Relation to 
 Duties and Powers of Board of Public Works" covers provisions referring to 
 matters over which board had some control, and abolishing requirement of signa- 
 ture and witnesses to certificate of sale of lots for special assessments; State 
 ex rel. Olsen v Board of Control, 85 Minn. 174, 88 N. W. 533, holding "To Provide 
 for Management of Charitable Institutions of State" carries provision for super- 
 vision of finances of state normal schools by state board of control ; State ex rel. 
 Smith v. Gallagher, 42 Minn. 451, 44 X. W. 529, holding "To Amend Act to De- 
 fine Boundaries and Establish Municipal Government" covers extension of bound- 
 aries and extinguishment of village organization ; Willis v. Mabon, 48 Minn. 156, 
 16 L. R. A. 287, 31 Am. St. Rep. 626, 50 N. W. 1110, holding "To Amend Act to 
 Secure Release of Debts against Debtors" covers provision saving from exemption 
 any other "party liable as surety, guarantor, or otherwise;" State v. Honerud, 
 60 Minn. 40. 68 X. W. 323, holding "To Change Boundaries of Otter Tail County" 
 covers resulting change of adjoining Wilkin county; State ex rel. Childs v. 
 Red Lake County. 67 Minn. 356, 69 N. W. 1083, holding "Creation and Organiza- 
 tion of Xew Counties" covers change in boundaries, temporary location of county 
 seat, and other matters pertinent to organization and government; South St. 
 Paul v. Lamprecht- Bros. Co. 31 C. C. A. 587, 60 U. S. App. 78, 88 Fed. 451, 
 holding "To Amend Acts to Incorporate City as Amended, and To Authorize 
 Issue of Bonds," covers provision for adoption of bridge plan by council and sub- 
 mission to popular vote; Southern P. Co. v. Bartine, 170 Fed. 737, holding that 
 statute by implication repealing former law need not express specifically such 
 repeal in its title; Jackson v. Board of Education, 112 Minn. 171, 127 N. W. 569, 
 holding that amendment entitled "act to amend charter of city" sufficiently 
 expresses subject in title. 
 
 Cited in footnote to Millvale v. Evergreen R. Co. 7 L. R. A. 369, which holds 
 charter for railroad carrying passengers and freight within title of act for char- 
 tering "passenger railway company." 
 
 Cited in notes (55 L. R. A. 849) on power of legislature to enact a code or 
 compilation of laws, or amend many or undesignated sections thereof, by a 
 single statute: (31 Am. St. Rep. 636) on amendment of statutes by reference 
 to title; (24 Am. St. Rep. 518; 64 Am St. Rep. 75, 79, 81) on sufficiency of title 
 of statute; (79 Am. St. Rep. 480) as to when title of statute embraces only one 
 subject, and what may be included thereunder. 
 Chnrter provision for school district. 
 
 Cited in State v. West Duluth Land Co. 75 Minn. 469, 78 N. W. 115, holding 
 constitutional provision against special legislation granting "corporate powers 
 or privileges except to cities" not violated by statute establishing and organizing 
 school district within city. 
 
 3 L. R. A. 50, WRIGHT v. TRAVER.. 73 Mich. 493, 41 N. W. 517. 
 Negotiability of instrument as affected by collateral stipulation. 
 
 Cited in Sylvester Bleckley Co. v. Alewine, 48 S. C. 311, 37 L. R. A. 88, 26 
 S. E. 609, holding promissory note rendered non-negotiable by provision for attor- 
 
 I 
 
3 L.R.A. 50] L. R. A. CASES AS AUTHORITIES. 420 
 
 ney's fees; Walker v. Thompson, 108 Mich. 688, 66 N. W. 584, holding negotiabil- 
 ity of note destroyed by provision for payment of taxes on certain real estate; 
 Brooke v. Struthers, 110 Mich. 576, 35 L. R. A. 543, 68 N. W. 272, holding nego- 
 tiability of mortgage note destroyed by provision in mortgage for payment of all 
 taxes "upon mortgage," where mortgagee's interest therein is taxable; Conrad 
 Seipp Brewing Co. v. McKittrick, 86 Mich. 195, 48 N. W. 1086, holding instru- 
 ment admissible in evidence in support of common counts, in spite of non-nego- 
 tiability; Worden Grocer Co. v. Blanding, 161 Mich. 257, 126 N. W. 212, holding 
 a note in the ordinary form of a negotiable instrument which contains a pro- 
 vision that it is given, subject to approval of the payee, for a stock of merchan- 
 dise received of payee, and that the title thereto shall remain in him until note 
 is paid, is a non-negotiable instrument; Gilpin v. People's Bank, 45 Ind. App. 
 54, 90 N. E. 91, holding that stipulation in note that partial payments shall be 
 considered as rental for property sold destroys its negotiability. 
 
 Cited in footnotes to Adams v. Seaman, 7 L. R. A. 224, and Sylvester Bleckley 
 Co. v. Alewine, 37 L. R. A. 86, which hold negotiability of note destroyed by 
 stipulation for attorney's fees; Citizens' Nat. Bank v. Piollet, 4 L. R. A. 190, 
 which holds negotiability destroyed by agreement for renewal; Dorsey v. Wolff, 
 18 L. R. A. 428, which holds negotiability not destroyed by stipulation for 10 
 per cent attorney's fees; Farmers Nat. Bank v. Sutton Mfg. Co. 17 L. R. A. 595, 
 which holds negotiability of bill of exchange not defeated by stipulation for at- 
 torney's fees, becoming operative after dishonor; Montgomery v. Crosthwait, 12 
 L. R. A. 140, which holds negotiability not destroyed by stipulation to pay all 
 costs of collection; Oppenheimer v. Farmers' & M. Bank, 33 L. R. A. 767, which 
 hplds negotiability of note not affected by stipulation for attorneys' fees inop- 
 erative until maturity and dishonor. 
 
 Cited in notes (8 L. R. A. 393) on negotiable instruments (7 L. R. A. 537) 
 on requisites to negotiability of promissory note; (7 L. R. A. 445) on stipula- 
 tion in note for attorneys' fees; (8 L. R. A. 394) on stipulations and agreements 
 which destroy negotiability; (3 L. R. A. 863) on admissibility of parol evidence 
 to vary or contradict commercial paper; (43 L. R. A. 279) on reservation of 
 title to property as affecting negotiability of note for purchase price; (32 L.R.A 
 (N.S.) 866) on recital in note as to security as affecting negotiability; (23 Am. 
 St. Rep. 169; 125 Am. St. Rep. 195) on agreements and conditions destroying 
 negotiability. 
 Validity of provision for attorney's fees. 
 
 Cited in Kittermaster v. Brossard, 105 Mich. 220, 55 Am. St. Rep. 437, 63 
 N. W. 75, holding stipulation in mortgage for attorneys' fee void unless ex- 
 pressly sanctioned by statute; Chestertown Bank v. Walker, 90 C. C. A. 140, 
 163 Fed. 511, holding under the law of Maryland, a contract in a note to pay 
 a collection fee, if note is not paid at maturity is valid to extent of a reasonable 
 fee actually expended or contracted to be paid, but no further. 
 
 Cited in footnotes to Levens v. Briggs, 14 L. R. A. 188, which holds agreement 
 for a specified percentage, if note collected by suit, invalid; Pattillo v. Alexander. 
 29 L. R. A. 616, which sustains payee's guaranty of attorney's fees if note has 
 to be collected by law; Bank of Commerce v. Fuqua, 14 L. R. A. 588, which holds 
 provision in note for attorney's fees valid, but reasonableness of same for court ; 
 Dorsey v. Wolff, 18 L. R. A. 428, which holds stipulation in note for 10 per cent 
 attorney's fees not usurious. 
 
 3 L. R. A. 52, SMITH v. SMITH, 73 Mich. 445, 16 Am. St. Rep. 594.. 41 
 
 N. W. 499. 
 Privileged communications. 
 
 Cited in Brewer v. Chase, 121 Mich. 536, 46 L. R. A. 402, 80 Am. St. Rep. 527, 
 
421 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 53 
 
 80 N. W. 579, holding privilege under given circumstances a question for court; 
 Shepherd v. Baer, 96 Md. 150, 53 Atl. 790, holding replies to libelous statements 
 privileged; Flynn v. Boglarsky, 164 Mich. 518, 32 L.RA.(X.S.) 743, 129 N. W. 
 674, holding it question for jury whether petition charging disorderly conduct 
 was given unnecessary notoriety so as to take away its privileged character. 
 
 Cited in footnotes to Nissen v. Cramer, 6 L. R. A. 780, which holds relevant 
 words spoken by party to action during trial privileged; Hollenbeck v. Hall, 39 
 L. R. A. 734, which holds publication that trader is dishonest in pleading statute 
 of limitations not libelous; Sullivan v. Strahorn-Hutton-Evans Commission Co. 
 47 L. R. A. 859, which holds imputation of evil motives, and dishonesty in letter 
 complaining of nonpayment of debt by third person through bank, not privileged. 
 
 Cited in notes (6 L. R. A. 363) on privileged communications; (9 L. R. A. 
 621, 624) on what constitutes libel; (12 L.R.A.(N.S.) 92) on inference, from 
 publication alone, of malice which will preclude qualified privilege; (104 Am. St. 
 Rep. 118, 119, 147) on what libelous statements are privileged. 
 Words libelous per He. 
 
 Cited in Morse v. Times-Republican Printing Co. 124 Iowa, 716, 100 N. W. 867, 
 holding an article designed and calculated to exhibit plaintiff as shallow, ridicu- 
 lous and contemptible, dishonest and undeserving of confidence, is libelous per se. 
 
 Cited in notes (116 Am. St. Rep. 804. 811) on what words are libelous per se; 
 (9 Eng. Rul. Cas. 15) on distinction between libel and slander. 
 
 3 L. R. A. 53, FLEMING v. GUTHRIE, 32 W. Va. 1, 25 Am. St. Rep. 792, 9 
 
 S. E. 23. 
 Jurisdiction to interfere with executive functions. 
 
 Cited in Mann v. County Ct. 58 W. Va. 656, 52 S. E. 776, holding in the 
 absence of statute courts of equity have no power to control by injunction or 
 otherwise public officers and tribunals in the exercise of purely legislative or gov- 
 ernmental functions; State ex rel. Rawlinson v. Ansel, 76 S. C. 407, 57 S. E. 185, 
 11 A. & E. Ann Cas. 613, holding the Supreme Court has no jurisdiction by 
 certiorari to require the governor to certify to it the record on which his act in 
 removing the dispensary Commission was exercised for the purpose of judicial re- 
 view, such act being executive and not judicial. 
 Injunction to protect political rights. 
 
 Cited in Alderson v. Kanawha County, 32 W. Va. 644, 5 L. R. A. 338, 25 Am. 
 St. Rep. 840, 9 S. E. 868, refusing to enjoin board of canvassers from returning 
 to governor result of election to Congress; Morgan v. County Court, 53 W. Va. 
 376, 44 S. E. 182, denying injunction to restrain holding public election. 
 
 Cited in footnotes to Weaver v. Toney, 50 L. R. A. 105, which denies right to 
 enforce by injunction right to have inspector of certain party at polls; Alderson 
 v. Kanawha County Court, 5 L. R. A. 334, which refuses to enjoin certification 
 to governor of result of canvass of county votes for congressman; State ex rel. 
 McCaffery v. Aloe, 47 L. R. A. 393, which denies right to injunction to protect 
 purely political right of citizen as voter. 
 
 Cited in note (42 Am. St. Rep. 236) on jurisdiction of equity over elections. 
 When writ of prohibition or mandamus will issue. 
 
 Cited in Hartigan v. Board of Regents, 49 W. Va. 17, 38 S. E. 698. holding 
 writ of prohibition will not lie against regents of univesity to prohibit removal 
 of professor: Wilkinson v. Hoke, 39 W. Va. 406, 19 S. E. 520; holding erroneous 
 judgment for costs might be prohibited. 
 
 Cited in footnotes to People ex rel. Nicoll v. New York Infant Asylum, 10 L. 
 R. A. 381, which holds mandamus not proper remedy to restore person to office; 
 Hughes v. Recorder's Court, 4 L. R. A. 863, granting prohibition against prosecu- 
 
3 L.R.A. 53] L. R. A. CASES AS AUTHORITIES. 422 
 
 tion for violation of void ordinance; Knox County v. Johnson, 7 L. R. A. 684, 
 which holds mandamus will not lie to compel commissioners to approve official 
 bond or show cause for not doing so; Bullard v. Thorpe, 25 L. R. A. 605, which 
 grants prohibition against splitting actions before justice into amounts too small 
 to permit appeal; Territorial Insane Asylum v. Wolfley, 8 L. R. A. 188, which de- 
 nies mandamus to compel governor to sign warrant for funds for asylum : Hangen 
 v. Albina Light & Water Co. 14 L. R. A. 424, which holds mandamus appropriate 
 remedy to compel supply of water; People ex rel. Daley v. Rice, 14 L. R. A. 644, 
 which authorizes mandamus to compel canvassing board to disregard illegal 
 return; Jackson v. State, 42 L. R. A. 792, which sustains right to mandamus to 
 compel reinstatement of pupil whose admission arbitrarily or capriciously re- 
 fused; Port Royal Min. Co. v. Hagood, 3 L. R. A. 841, which refuses to compel 
 board of agriculture by mandamus to issue license to mine phosphate rock; GofT 
 v. Wilson, 3 L. R. A. 58, which refuses mandamus to compel turning over office 
 of governor; State ex rel. Scharnikow v. Hogan, 51 L. R. A. 958, which denies 
 writ of prohibition against proceedings not of judicial character; People ex rel. 
 Corscadden v. Howe, 66 L.R.A. 664, which holds that mandamus will lie to compel 
 payment by county treasurer of salary of superintendent of county penitentiary 
 whom commissioners have attempted to remove from office under invalid statute 
 during time he retains possession of the office. 
 
 Cited in notes (58 L. R. A. 866) on original jurisdiction of court of last resort 
 in mandamus cases; (9 L. R. A. 60) as to when writ of prohibition will lie; (11 
 L. R. A. 763) on mandamus to control executive discretion; (3 L. R. A. 316) on 
 right of judiciary to interfere with functions of executive. 
 Power of governor after expiration of term. 
 
 Cited in footnote to Carr v. Wilson, 3 L. R. A. 64, which upholds governor's 
 power to discharge duties of office after end of term, though he is ineligible to 
 re-election. 
 
 3 L. R. A. 58, GOFF v. WILSON, 32 W. Va. 393, 9 S. E. 26. 
 "When mandamus or injunction -will issue. 
 
 Cited in State ex rel. Clark v. Long, 37 W. Va. 270, 16 S. E. 578, holding man- 
 damus sufficient in form which is entitled in name of relator as plaintiff, against 
 respondent as defendant; Hartigan v. Board of Regents, 49 W. Va. 17, 38 S. E. 
 698, refusing to enjoin board of canvassers from returning to governor result of 
 election to Congress; State v. Shumate, 48 W. Va. 363, 37 S. E. 618, holding that 
 writ of error lies from order disbarring attorney; State ex rel. Atty. Gen. v. 
 Huston, 27 Okla. 612, 34 L.R.A.fX.S.) 385, 113 Pac. 190, holding that district 
 court has no jurisdiction to control even ministerial acts of governor; Kline v. 
 McKelvey, 57 W: Va. 30, 49 S. E. 896, holding mandamus will lie to compel the 
 admission or restoration to office of the party having a clear prima facie right 
 thereto shown by a commission, certificate, or other legal evidence thereof. 
 
 Cited in footnotes to Alderson v. Kanawha County Court, 5 L. R. A. 334. which 
 refuses to enjoin certification to governor of result of canvass of county votes for 
 congressman; People ex rel. IJeley v. Rice, 14 L. R. A. 644, which authorizes man- 
 damus to compel canvassing board to disregard illegal return; People ex rel. 
 Corscadden v. Howe, 66 L.R.A. 664. which holds that mandamus will lie to 
 compel payment by county treasurer of salary of superintendent of county peni- 
 tentiary whom commissioners have attempted to remove from office under in- 
 valid statute during time he retains possession of the office. 
 
 Cited in notes (31 L. R. A. 344, 351, 367) on mandamus to control surrender of 
 office; (11 L. R. A. 763) en mandamus to control executive discretion; (3 L. R. 
 
423 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 69 
 
 A. 316) on right of judiciary to interfc j with fuLetions of executive; (6 L.R.A. 
 (X.S.) 771) on mandamus to governor. 
 When duties of office may be assumed. 
 
 Cited in Re Moore, 4 Wyo. 114, 31 Pac. 980, denying right of governor to as- 
 sume duties of office before votes have been canvassed. 
 Power of governor after end of term. 
 
 Cited in footnote to Carr v. Wilson, 3 L. R. A. 64, which holds governor may 
 discharge duties of office after end of term. 
 Jurisdiction of election contests. 
 
 Cited in McWhorter v. Dorr, 57 W. Va. 610, 110 Am. St. Rep. 815, 50 S. E. 
 838, holding courts have no power when the jurisdiction has been conferred 
 upon a legislative branch of government. 
 
 3 L. R. A. 64, CARR v. WILSON, 32 W. Va. 419, 9 S. E. 31. 
 
 Right of officials to hold over until successors are elected or appointed. 
 
 Cited in btate ex rel. Thayer v. Boyd, 31 Neb. 731, 48 N. W. 739, holding that 
 under Nebraska Constitution governor holds over, when person receiving plurality 
 of votes for the office is ineligible; People ex rel. Parsons v. Edwards, 93 Cal. 157, 
 28 Pac. 831, and State ex rel. Richardson v. Henderson, 4 Wyo. 553, 22 L. R. A. 
 757, 35 Pac. 517, holding, where incumbent is required to hold over, expiration of 
 term of office not a vacancy, unless there is legally elected or appointed successor. 
 
 Cited in footnotes to State, Clifford, Prosecutor, v. Heller, 57 L. R. A. 312, 
 which denies right of president of senate to act, after resignation, as governor in 
 place of governor resigning office; Goff v. Wilson, 3 L. R. A. 58, which refuses 
 mandamus to compel turning over office to governor. 
 Succession to office by operation of law. 
 
 Cited in People ex rel. Parks v. Cornforth, 34 Colo. 113, 81 Pac. 871, holding 
 under Constitution the president pro tern of the Senate did not become de jure 
 Lieutenant Governor, upon the latter becoming Governor. 
 Declaration of election. 
 
 Cited in State ex rel. Guinan v. Meder, 22 Nev. 272, 38 Pac. 668, holding no 
 election complete under statutes until after proper canvass and certification of 
 result; Re Moore, 4 Wyo. 114, 31 Pac. 980, holding assumption of duties of gov- 
 ernor before canvass, and declaration of result, invalid. 
 
 Cited in footnote to Alderson v. Kanawha County Court, 5 L. R. A. 334, which 
 refuses to enjoin certification to governor of result of canvass of county votes for 
 congressman. 
 Function of executive. 
 
 Cited in notes (3 L. R. A. 316) on right of judiciary to interfere with func- 
 tions of executive; (11 L. R. A. 763) on mandamus to control executive 
 discretion. 
 
 3 L. R. A. 69, ARXOTT v. STANDARD ASSO. 57 Conn. 86, 17 Atl. 361. 
 Libel. 
 
 Cited in footnotes to Brewer v. Chase, 46 L. R. A. 397, which sustains liability 
 of author of libelous articles stating that he is informed that certain things have 
 occurred; Morning Journal Asso. v. Rutherford, 16 L. R. A. 803, which authorizes 
 punitive damages against newspaper reprinting stories of elopement, without 
 inquiry as to truth. 
 
 Cited in notes (9 LR.A. 621) on what constitutes libel; (116 Am. St. Rep. 808) 
 on what words are libelous per se. 
 
3 L.R.A. 69] L. R. A. CASES AS AUTHORITIES. 424 
 
 Privilege. 
 
 Cited in footnote to Nissen v. Cramer, 6 L. R. A. 780, which holds relevant 
 words spoken by party to action during trial privileged. 
 Good faith as mitigating damages. 
 
 Cited in Rocky Mountain News Printing Co. v. Fridborn, 46 Colo. 451, 24 L.R.A. 
 (N.S.) 895, 104 Pac. 956, holding good faith may be pleaded in mitigation of 
 damages. 
 Right to testify as to one's intent. 
 
 Cited in note (23 L.R.A.(N.S.) 392) on right of one to testify as to his intent. 
 
 3 L. R. A. 71, ALEXANDER v. WESTERN U. TELEG. CO. 66 Miss. 161, 14 Anu 
 St. Rp. 556, 5 So. 397. 
 
 Report of decision on appeal after trial, in 67 Miss. 386, 7 So. 280. 
 Sufficiency of complaint stating nominal damages, on demurrer. 
 
 Cited in Stafford v. Western U. Teleg. Co. 73 Fed. 275, holding complaint 
 stating cause of action for nominal damages and penalty should not be dismissed. 
 Damages for failure properly to transmit or deliver message. 
 
 Cited in Western U. Teleg. Co. v. Carter, 156 Ind. 532, 60 N. E. 305, holding 
 telegraph company not liable for penalty under laws of sender's state, for failure 
 properly to deliver outside of state; Marshall v. Western U. Teleg. Co. 79 Miss. 
 161, 89 Am. St. Rep. 585, 27 So. 614, denying damages for delay in transmitting 
 telegram; Shaw v. Postal Teleg. & Cable Co. 79 Miss. 691, 56 L. R. A. 491, 80 Am. 
 St. Rep. 666, 31 So. 222, denying damages for erroneous transmission of telegram 
 where state from which it is sent allows none; Postal Teleg. & Cable Co. v. Wells, 
 82 Miss. 740, 31 So. 190, sustaining recovery for mistakes in transmission of 
 message from another state. 
 
 Cited in footnotes to Western U. Teleg. Co v. Short, 9 L.R.A. 744, which 
 holds company prima facie liable for failure to deliver telegram; Western U. 
 Teleg. Co. v. Nye & S. Grain Co. 63 L.R.A. 803, which holds difference in value 
 between market value of corn and the price at which it could have been sold 
 the measure of damages for negligent delay of telegram; Hays v. Western U. 
 Teleg. Co. 67 L.R.A. 481, which holds that change in telegram so as to quote price 
 of mules at ten dollars per head less than market price resulting in sendee's 
 ordering purchase of designated number, renders telegraph company liable for 
 difference between price paid and that stated in telegram. 
 
 Cited in notes (117 Am St. Rep. 292) on elements of damages recoverable for 
 failure to transmit and deliver telegrams; (12 L.R.A.(N.S.) 749) on contingencies 
 in possible action of sendee or third person, as affecting liability for failure prop- 
 erly to transmit and deliver telegram. 
 
 Distinguished in Western U. Teleg. Co. v. Adams Mach. Co. 92 Miss. 855. 47 
 So. 412, holding that profits if sendee of telegram had accepted proposition in 
 telegram not delivered are not recoverable. 
 Measure of damages. 
 
 Cited in footnotes to Fererro v. Western U. Teleg. Co. 35 L. R. A. 548, which 
 limits damage for mistake in telegram as to price in offer to sell goods to dif- 
 ference in prices; McPeek v. Western U. Teleg. Co. 43 L. R. A. 214, which holds 
 loss of reward offered for capture of criminal within damages recoverable for 
 failure to deliver telegram : Western U. Teleg. Co. v. North Packing & Provision 
 Co. 52 L. R. A. 274, which holds agent induced to purchase live stock through 
 delay in delivering telegram, not required to resell before communicating with 
 principal, to reduce damages. 
 
 Cited in note (10 L. R. A. 515) on liability for neglect to deliver telegram. 
 
4 -- 5 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 74 
 
 Distinguished in Western U. Teleg. Co. v. Adams Mach. Co. 92 Miss. 855, 47 
 So. 412. holding where an agent of a manufacturer able to sell goods to a buyer 
 provided delivery within thirty days would be guaranteed, sent a telegram to 
 manufacturer asking whether he would guarantee shipment within thirty days, 
 and the telegraph company failed to deliver the message, the company was not 
 liable to the manufacturer for the profits which it would have made if the con- 
 tract had been closed. 
 
 Disapproved in Hughes v. Western U. Teleg. Co. 79 Mo. App. 139, and West- 
 ern U. Teleg. Co. v. Wilson, 32 Fla. 534, 22 L. R. A. 437, 37 Am. St. Rep. 
 125, 14 So. 1, holding telegraph company, for breach of contract to deliver 
 cipher message, only liable for nominal damages or price of message. 
 Statute pennlyzingr negrligence in transmission of message. 
 
 Cited in Hilley v. Western U. Teleg. Co. 85 Miss. 70, 37 So. 556, as to whether 
 statute penalizing incorrect transmission was an interference with interstate 
 commerce. 
 Telegram statutes as interference Yrith interstate commerce. 
 
 Cited in Hilley v. Western U. Teleg. Co. 85 Miss. 70, 37 So. 556, on statute 
 imposing penalty for transmitting message incorrectly as interference with inter- 
 state commerce. 
 
 3 L. R. A. 74, KELLY v. MANHATTAN R. CO. 112 N. Y. 443, 20 N. E. 383. 
 Care required of carrier to prevent injury to passengers. 
 
 Cited in Barnes v. New York C. & H. R. R. Co. 42 Misc. 625, 87 N. Y. Supp. 
 608, holding company liable for injuries to passenger from slipping on oil on 
 platform of passenger station; Jensen v. Hamburg- American Packet Co. 23 
 App. Div. 167, 48 N. Y. Supp. 630, holding rule requiring carrier to use high- 
 est care only pertains to appliances and machinery; Smith v. Kingston City R. 
 Co. 55 App. Div. 144, 67 N. Y. Supp. 185, holding carrier not liable merely 
 for injury due to catching of dress on plunger, no better or safer cars being 
 made by builders; Loveless v. Manhattan R. Co. 25 Jones & S. 4, 5 N. Y. 
 Supp. 185, holding refusal to dismiss complaint in action for servant's neg- 
 ligence proper; Gulf, C. & S. F. R. Co. v. Shields, 9 Tex. Civ. App. 656, 28 S. 
 W. 709, holding unrestricted instruction that carrier is bound to use highest 
 degree of care and diligence to protect passengers erroneous; McKeon v. Chicago, 
 M. & St. P. R. Co. 94 Wis. 485, 35 L. R. A. 257, 59 Am. St. Rep. 909, 69 N. W. 
 175, holding erroneous instruction as to degree of care required of carrier 
 harmless, where proof showed' entire absence of care; Conroy v. Chicago, St. P. 
 M. & O. R. Co. 96 Wis. 256, 38 L. R. A. 423, 70 N. W. 486, holding carrier 
 bound to use only ordinary care to protect passenger alighting from car to 
 watch fire; Dotson v. Erie R. Co. 68 N. J. L. 684, 54 Atl. 827, denying 
 company's liability for injury to one who ventured too near edge of platform 
 and was hit by engine; Foster v. Old Colony Street R. Co. 182 Mass. 380, 65 
 N. E. 795, sustaining recovery for injuries to aged passenger who slipped on 
 icy step of car; Texas Midland R. Co. v. Frey, 25 Tex. Civ. App. 388, 61 S. W. 
 442, denying recovery to passenger who fell because no box provided for those 
 alighting from train; Fillingham v. St. Louis Transit Co. 102 Mo. App. 582 
 77 S. W. 314, holding carrier liable for failure to let passenger off at landing 
 place. 
 
 Cited in notes (8 L. R. A. 174) on damages for personal injuries; 
 R. A. 721) on duty of railroad company toward strangers and licensees. 
 
 Distinguished in*Miller v. Ocean S. S. Co. 118 N. Y. 211, 23 N. E. 462, hold- 
 ing admissible, evidence of failure to give warning of ilang.-r that might 
 been apprehended; Palmer v. Delaware & H. Canal Co. 120 X. \. 177. 17 Am. 
 
 I 
 
3 L.R.A. 74] L. R. A. CASES AS AUTHORITIES. 426 
 
 St. Rep. 629, 24 N. E. 302, holding that latent defect, to relieve carrier of 
 liability, must be one discoverable by no reasonable degree of skill and fore- 
 sight. 
 As to stations, platforms, car steps, and approaches. 
 
 Cited in Hiatt v. Des Moines, N. & W. R. Co. 96 Iowa, 174, 64 N. W. 766 ; 
 Chicago & G. T. R. Co. v. Stewart 77 111. App. 70; Falls v. San Francisco 
 & X. P. R. Co. 97 Cal. 120, 31 Pac. 901, holding carrier bound simply to 
 exercise ordinary care as to condition of passenger station; St. Louis, I. M. 
 & S. R. Co. v. Barnett, 65 Ark. 258, 45 S. W. 550, upholding instruction that it 
 was carrier's duty to keep station platforms safe, in absence of objection r 
 Sargent v. St. Louis & S. F. R. Co. 114 Mo. 355, 19 L. R. .. 461, 21 S. W. 
 823, holding carrier must light station platforms sufficiently to guide steps 
 of passengers using ordinary care; Illinois C. R. Co. v. Davidson, 22 C. C. 
 A. 312, 46 U. S. App. 300, 76 Fed. 523, holding carrier bound by rule of supreme 
 diligence in constructing platforms, to protect passengers from moving trains; 
 Robertson v. Wabash R. Co. 152 Mo. 393, 53 S. W. 1082, holding instruction, 
 in effect for recovery if depot platform was in unsafe condition and out of re- 
 pair, erroneous; Rusk v. Manhattan R. Co. 46 App. Div. 103, 61 N. Y. Supp. 
 384, holding passenger, slipping on ice on stairway, not showing how long it 
 had remained there, cannot recover; Pittsburgh, C. C. & St. L. R. Co. v. Al- 
 dridge, 27 Ind. App. 500, 61 N. E. 741, holding carrier not responsible for in- 
 jury produced by ice and snow on car step, without reasonable opportunity to 
 remove; Proud v. Philadelphia & R. R. Co. 64 N. J. L. 707, 50 L. R. A. 470, 46 
 Atl. 710. holding carrier not bound to know at each moment the condition of 
 every part of the train; Norfolk & W. R. Co. v. Hawkes, 102 Va. 457, 46 S. E. 471, 
 as to duty of railroad company in construction of platform; Riley v. Rhode Island 
 Co. 29 R. I. ,145, 15 L.R.A.(N.S.) 524, 69 Atl. 338, 17 A. & E. Ann. Cas. 50; 
 Fitch v. Central R. Co. 74 N. J. L. 136, 64 Atl. 992, holding railroad company 
 not negligent because there is ice on its platform provided it did not allow an 
 unreasonable length of time to elapse before cleaning the same; Pittsburgh, C. 
 C. & St. L. R. Co. v. Rose, 40 Ind. App. 253, 79 N. E. 1094, holding railroad com- 
 pany not liable for injuries caused by passenger slipping on banana peel on car 
 step when peel was not on step five minutes before train left last station; Rear- 
 den v. St. Louis & S. F R. Co. 215 Mo. 133, 114 S. W. 961, holding if it was 
 dangerous for a passenger to alight from the front platform of a coach and the 
 conductor was at that platform his failure to give warning thereof to an alight- 
 ing passenger was negligence; McCarty v. St. Louis & S. R. Co. 105 Mo. App. 
 604, 80 S. W. 7, holding a street car company is under obligation to a person who 
 attempts to board a car at an unusual place without knowledge of the carmen 
 to use ordinary care to keep the handrail used by passengers in boarding and 
 alighting in proper repair; Buck v. Manhattan R. Co. 15 Daly, 552, 10 N. Y. Supp. 
 107; McCormack v. Sydney & G B. R. Co. 37 N. S. 256, holding electric rail- 
 way company not liable for slippery condition of car steps during storm; Pere 
 Marquette R. Co. v. Strange, 171 Ind. 167, 20 L.R.A.(N.S-) 1048, 84 N. E. 819,. 
 holding a railroad company owes to a passenger approaching a train which he 
 intends to board the duty of exercising only reasonable care for his protection ; 
 Fremont, E. & M. Valley R. Co. v. Hagblad, 72 Neb. 781, 4 L.R.A (N.S.) 257, 101 
 N. W. 1033, 9 A. & E. Ann. Cas. 1096, holding a railroad company owes only 
 ordinary care to persons impliedly invited upon its platform who are not passen- 
 gers. 
 
 Cited in footnotes to White v. Cincinnati, N. O. & T. P. R. Co. 7 L. R. A. 
 44. which holds knowledge of unsafe condition of station platform not prevent 
 recovery; Redigan v. Boston & M. R. Co. 14 L. R. A. 276, which denies recov- 
 
427 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 78 
 
 ery to licensee falling through open trapdoor in station platform; Sargent v. 
 St. Louis & S. F. R. Co. 19 L. R. A. 460, which holds carrier not required to 
 have gas or electric lights on station platform; Jordan v. New York, N. H. & 
 H. R. Co. 32 L. R. A. 101, which holds carrier liable for dangerous hole in floor 
 of unlighted toilet room in depot; Herrman v. Great Northern R. Co. 57 L. R, 
 A. 390, which holds railroad company liable for injury to passenger from un- 
 safe condition of depot premises leased of union depot company or its receiver. 
 
 Cited in notes (6 L. R. A. 193) on carrier's duty to keep platforms and ap- 
 proaches in safe condition; (7 L. R. A. Ill) on carrier's duty to furnish safe 
 stations and platforms for use of passenger; (16 L. R. A. 593) on duty of car- 
 rier to maintain safe approaches beyond its own premises; (20 L. R. A. 522) 
 on measure of care which carrier must exercise to keep platforms and ap- 
 proaches safe ; ( 20 L. R. A. 527 ) as to whom railroads owe duty to keep sta- 
 tion platforms safe; (32 L.R.A. (N.S.) 883) on duty of street railway as to con- 
 dition of approaches to cars; (33 LR.A.(N.S.) 865) on degree of care toward 
 passenger at station; (42 L. ed. U. S. 493) on duty to protect and contributory 
 negligence of persons about to take train. 
 
 Distinguished in Oilman v. Boston & M. R. Co. 168 Mass. 455, 47 N. E. 193, 
 holding jury warranted in finding carrier negligent in not clearing car step of 
 ice on which passenger slipped and was injured; McGuire v. Interborough Rapid 
 Transit Co. 104 App. Div. 107, 93 N. Y. Supp. 316, holding under facts in case 
 defendant was guilty of negligence in failing to keep its platform clear of ice. 
 As to passenger elevators. 
 
 Cited in McGrell v. Buffalo Office Bldg. Co. 153 N. Y. 271, 47 N. E. 305, 
 holding owner only bound to use reasonable care as to surroundings and other 
 structures of passenger elevator plant. 
 Of carriers by -water. 
 
 Cited in Bruswitz v. Netherlands American Steam Nav. Co. 64 Hun, 266, 19 N. 
 Y. Supp. 75, holding steamship company not liable for injury to passenger trip- 
 ping in socket in floor, in rolling sea; Skottowe v. Oregon Short Line & U. N. R. 
 Co. 22 Or. 446, 16 L. R. A. 598, 30 Pac. 222, holding that fact that elevated walk 
 to boat landing Avas on unopened public street does not relieve carrier from 
 liability; Ganguzza v. Anchor Line, 97 App. Div. 354, 89 N. Y. Supp. 1049, 
 holding owner of vessel only owed reasonable care to passenger injured while 
 standing in a doorway opening upon a hoistway in a vessel, through the break- 
 ing of a rope used in such hoistway. 
 As to freight platforms. 
 
 Cited in Gunderman v. Missouri, K. & T. R. Co. 58 Mo. App. 381, holding car- 
 rier owes no duty to passenger to keep freight platforms in safe condition. 
 
 3 L. R. A. 78, REIN v. CLAYTON, 37 Fed. 354. 
 
 Use of patented article before issue of patent. 
 
 Cited in Brill v. St. Louis Car Co. 80 Fed. 910, holding inventor has no right 
 to injunction against infringer pending decision on application for patent; Ball 
 & Socket Fastener Co. v. Cohn, 90 Fed. G65, holding inventor cannot recover for 
 infringement before granting of patent; Kirk v. United States, 163 U. S. 55, 41 
 L. ed. 69, 16 Sup. Ct. Rep. 911, holding suit cannot be maintained for use of pat- 
 ented article before patent, by person not inventor; D. M. Steward Mfg. Co. v. 
 Steward, 109 Tenn. 302, 70 S. W. 808, holding damages not recoverable for use of 
 article before issuance of patent; Avery v. J. I. Case Plow Works, 163 Fed. 843, 
 as to damages not being recoverable for infringement of patent before issue. 
 
3 L.R.A. 80] L. R. A. CASES AS AUTHORITIES. 428 
 
 3 L. R. A. 80, LOUISVILLE & N. R. CO. v. LOGAN, 88 Ky. 232, 21 Am. St. Rep. 
 
 332, 10 S. W. 655. 
 Liability of carrier for injury to ejected passenger. 
 
 Cited in Chesapeake & O. R. Co. v. Saulsberry, 112 Ky. 921, 56 L. R. A. 582, 
 66 S. W. 1051, holding railroad company not liable for injury to intoxicated 
 person attempting to board one train after being ejected from another; Fagg v. 
 Louisville & N. R. Co. Ill Ky. 35, 54 L. R. A. 921, 63 S. W. 580, holding rail- 
 road company liable for ejecting helplessly intoxicated person boarding car at 
 cut, when officials knew another train was following closely; Louisville & N. R. 
 Co. v. Ellis, 97 Ky. 339, 30 S. W. 979, holding railroad company liable for 
 ejecting at night helplessly intoxicated, but inoffiensive, person at dangerous 
 point between stations; Chesapeake & 0. R. Co. v. Crank, 128 Ky. 333, 16 L.R.A. 
 (N.S.) 198, 108 S. W. 276, holding statute did not authorize a conductor to put 
 off a sick passenger vomiting or otherwise doing things a well-behaved passenger 
 in good health would not do, but only applied to persons who voluntarily or 
 while under the influence of liquor act in a boisterous, indecent or disgusting 
 manner, to the annoyance of other passengers; Louisville, H. & St. L. R. Co. 
 v. Gregory, 141 Ky. 765, 35 LR.A.(N.S.) 325, 133 S. W. 805, holding railroad not 
 liable, where partially intoxicated passenger fell off the platform after bei:ig 
 directed to go back into car on train stopping before reaching station. 
 
 Cited in footnotes to Bageard v. Consolidated Traction Co. 49 L. R. A. 424, 
 which denies carrier's liability for injury to sick passenger, supposed to be in- 
 toxicated, while going towards back of station, after being helped to front where 
 way open to street; Fisher v. West Virginia & P. R. Co. 23 L. R. A. 758 ; which 
 holds carrier not liable for injury to drunken passenger coming down car steps 
 without conductor's knowledge, and falling off; Paddock v. Atchison, T. & S. F. 
 R. Co. 4 L. R. A. 231, which upholds carrier's right to remove passenger appar- 
 ently broken out with smallpox; North Chicago City R. Co. v. Gastka, 4 L. R. A. 
 481, which holds carrier liable for conductor's lack of care in ejecting passenger 
 for nonpayment of fare. 
 
 Cited in notes (19 L. R. A. 327) on exposure of drunken passenger to danger 
 by ejection from train; (5 L. R. A. 820) on right to expel passenger from train; 
 (11 L.R.A. 432) on ejection of passenger from train; (12 L.R.A.(N.S.) 360) on 
 negligence of passenger ejected from train, in walking on track. 
 
 3 L. R. A. 83, SAN DIEGO LAND & TOWN CO. v. NEALE, 78 Cal. 63, 20 Pac. 
 372. 
 
 Second appeal as to value of land condemned, in 88 Cal. 55, 11 L. R. A. 604, 25 
 Pac. 977. 
 Valne of land taken by public. 
 
 Cited in Los Angeles v. Pomeroy, 124 Cal. 644, 57 Pac. 585, holding that in con- 
 demnation proceedings actual value after summons issued may be shown; Re 
 Gilroy, 85 Hun, 427, 32 N. Y. Supp. 891, holding availability of water supply of 
 city property an element in compensation for taking it; Re Brookfield, 78 App. 
 Div. 526, 81 N. Y. Supp. 10 (dissenting opinion), majority holding owner of bed 
 of pond entitled to nominal consideration only; Hollister v. State, 9 Idaho. 16, 
 71 Pac. 541; Madera R. Co. v. Raymond Granite Co. 3 Cal. App. 687, 87 Pac 27. 
 as to the measure of damages; United States v. Honolulu Plantation Co. 58 C. 
 C. A. 279, 122 Fed. 585; Guyandot Valley R. Co. v. Burkirk, 57 W. Va. 426, 110 
 Am. St. Rep. 785, 50 S. E. 521, holding market value measure of damages; Sac- 
 ramento Southern R. Co. v. Heilbron, 156 Cal. 410, 104 Pac 979, holding the 
 measure of damages for land taken by condemnation is its market value in view 
 of all the purposes to which it is adapted, and while evidence that it is "valuable" 
 
4 - 9 L. R. A. CASES AS AUTHORITIES. 
 
 429 
 
 for particular purposes is admissible, its money value for any particular purpose 
 cannot be shown in determining its market value; Seattle & M. R. Co. v. Mur- 
 phine, 4 Wash. 457, 30 Pac. 720, holding jury may consider how much the necessity 
 of fencing or of constructing a crossing will detract from the value of the abutting 
 land, but the cost of building fences and constructing the crossings cannot be 
 recovered as distinct items of damage; Brown v. W. T. Weaver Power Co. 140 
 X. C. 345, 3 L.R.A.(X.S.) 917, 52 S. E. 954, holding where land is damaged by 
 the exercise of the power of eminent domain in the erection of a dam, the true 
 measure of damages is the difference in the value of the land just after the 
 erection of the dam and its value in its proper condition. 
 
 Cited in footnotes to Schroeder v. Joliet, 52 L. R. A. G34, which authorizes con- 
 sideration of benefit from improvement in assessing damages to abutting owner 
 from cutting down street; Beveridge v. Lewis, 59 L. R. A. 581, which denies 
 right to deduct benefits from damages, in exercise of eminent domain by individ- 
 ual ; Jacksonville, T. & K. W. R. Co. v. Adams, 14 L. R. A. 533, which denies 
 right to include value of railroad track constructed by company entering with- 
 out owner's consent, in estimating owner's damages; Philadelphia Ball Club v. 
 Philadelphia, 46 L. R. A. 724, which requires damages from taking of property in 
 eminent domain estimated as of the time when injury done, without considering 
 future profits of business or subsequent change of circumstances. 
 
 Cited in notes (7 L. R. A. 289) on consideration of benefits on assessment to 
 abutting owner of damages by elevated railroad; (8 L. R. A. 330) on measure of 
 damages for land condemned for railroad purposes; (11 L. R. A. 604) on market 
 price as element of damages in condemnation proceedings; (7 L. R. A. 409) on 
 compensation for land taken for railroad purposes; (3 L.R.A.(X.S.) 913) on right 
 to consider value as part of a natural water power, in fixing compensation on 
 condemnation; (11 L.R.A.(X.S.) 996) on special value of property for purpose as 
 element of compensation on condemnation; (19 Am. St. Rep. 459) on measure of 
 compensation on condemnation of right of way for railroad; (19 Am. St. Rep 
 460) on effect of benefits accruing to landowner; (22 Am. St. Rep. 49) on com- 
 pensation on eminent domain; (85 Am. St. Rep. 298) on adaptability of property 
 taken for special purpose. 
 Expert evidence. 
 
 Cited in People v. Hill, 123 Cal. 51, 55 Pac. 692, holding expert evidence of 
 intoxication within short time of homicide competent. 
 Evidence as to value of land condemned. 
 
 Cited in Muller v. Southern P. Branch R. Co. 83 Cal. 245, 23 Pac. 265, holding 
 evidence as to value of land not taken, if railroad had not been built, incompe- 
 tent ; Spring Valley Waterworks v. Drinkhouse, 92 Cal. 533, 28 Pac. 681, holding 
 question, "Do you know value of that land for reservoir purposes?" admissible; 
 Santa Ana v. Harlin, 99 Cal. 543, 34 Pac. 224, holding question, "For what pur- 
 pose could this property be used properly?" inadmissible; Ranck v. Cedar Rapids, 
 134 Iowa. 573, 111 X. W. 1027, holding evidence of value of land for special use 
 admissible; Re East Galer Street, 47 Wash. 605, 92 Pac. 423, holding in proceed- 
 ings to condemn a strip of land 1 foot in width and 394 feet in length lying 
 between a public street and unplatted lands owned by persona other than the 
 owner of the strip the jury in assessing the value of such land should though 
 the strip be of no value in use to the owner, take into consideration the situa- 
 tion of the strip, its relation to the adjoining tract, etc.; Central P. R. Co. v. Feld- 
 man, 152 Cal. 309, 92 Pac 849, holding where a witness testified as an expert aa 
 to value of property sought to be condemned he was properly cross-examined 
 regarding the appraisement of the property in probate proceedings in connection 
 with the estate of a former owner to test the value of his opinion. 
 
 1 
 
3 L.R.A. 83} L. R. A. CASES AS AUTHORITIES. 430 
 
 Cited in note (124 Am. St. Rep. 537) on evidence of special value of property 
 taken for public use. 
 
 Disapproved in Alloway v. Nashville, 88 Tenn. 518, 8 L.R.A. 126, 13 S. W. 123, 
 holding in condemnation proceedings by city to obtain a reservoir site, it is proper 
 to reject evidence as to its particular value as a reservoir site. 
 N r s trial on single issue. 
 
 Cited in Mountain Tunnel Gravel Min. Co. v. Bryan, 111 Cal. 38, 43 Pac. 410, 
 and Duff v. Duff, 101 Cal. 4, 35 Pac. 437, sustaining party's right to move for new 
 trial upon single issue; Ramsdell v. Clark, 20 Mont. 106, 49 Pac. 591, holding the- 
 same; Robinson v. Muir, 151 Cal. 125, 90 Pac. 521, holding party may move for 
 new trial as to part of the issues. 
 
 Final judgment. 
 
 Cited in Arnold v. Sinclair, 11 Mont. 567, 28 Am. St. Rep. 489, 29 Pac. 340, as 
 to what constitutes. 
 
 3 L. R. A. 90, UNION MUT. L. INS. CO. v. UNION MILLS PLASTER CO. 37 
 
 Fed. 286. 
 Appointment of receiver in foreclosure. 
 
 Cited in Merritt v. Gibson, 129 Ind. 179, 15 L. R. A. 285, 27 N. E. 136, holding 
 mortgagee, purchaser at foreclosure sale, entitled to appointment of receiver of 
 rents and profits till expiration of redemption year; American Nat. Bank v. 
 Northwestern Mut. L. Ins. Co. 32 C. C. A. 277, 60 U. S. App. 693, 89 Fed. 612, 
 holding receiver properly appointed 'pending foreclosure, when mortgagor insol- 
 vent and property not cared for; Norfor v. Busby, 19 Wash. 454, 53 Pac. 715, 
 holding receiver of rents and profits of land pending foreclosure cannot be ap- 
 pointed; Marshall & I. Bank v. Cady, 75 Minn. 245, 77 N. W. 831 (dissenting 
 opinion), as to right to appoint temporary receiver in foreclosure to prevent 
 waste; Vila v. Grand Island Electric Light, Ice & C. S. Co. 68 Neb. 240, 63 L.R.A. 
 791, 110 Am. St. Rep. 400, 97 N. W. 613, 4 A & E. Ann. Gas. 59, denying appoint- 
 ment of receiver of corporation in independent action; Slover v. Coal Creek Coal 
 Co. 113 Tenn. 431. 68 L.R.A. 855, 106 Am. St. Rep. 851, 82 S. W. 1131, holding 
 appointment of receiver merely auxiliary to pending litigation. 
 
 Cited in notes (20 L.R.A. 210) on power to appoint receivers of corporations 
 where no other relief is asked; (7 L.R.A. (N.S.) 1006) on power of equity where 
 mortgage does not convey title, to impound rents and profits pending foreclosure; 
 {72 Am. St. Rep. 39, 77) as to when appointment of receiver is proper. 
 
 Effect of tender. 
 
 Cited in Malone v. Wright, 90 Tex. 57, 36 S. W. 420, holding tender to pledgee's 
 attorney upon condition that notes, known to be out of his possession be imme- 
 diately surrendered, not good; Reynolds v. Price, 88 S. C. 531, 71 S. E. 51. holding 
 that refusal of tender, in good faith, on ground that amount is insufficient, will 
 not discharge lien of mortgage. 
 
 Cited in footnote to Moore v. Norman, 18 L. R. A. 359, which holds tender cou- 
 pled with demand of surrender of notes ineffectual to discharge chattel mortgage. 
 
 Cited in notes (33 L. R. A. 234) on effect of unaccepted tender on lien by mort- 
 gage or pledge; (9 L. R. A. 55) on lien of chattel mortgage devested by absolute 
 tender. 
 Relief in equity from forfeiture of iiiortuaso. 
 
 Cited in note (86 Am. St. Rep. 58) on relief in equity from forfeitures of mort- 
 gages. 
 
*31 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 94 
 
 Federal conrts following; ntate dedalon*. 
 
 Cited in note (40 L.R.A.(N.S.) 415) on questions of state law as to which. 
 state court decisions must be followed in actions originating in, or removed to, 
 Federal courts. 
 
 3 L. R. A. 94, WEAVER v. GAY, 31 W. Va. 736, 8 S. E. 743. 
 Acceptance of option. 
 
 Cited in Hanly v. Watterson, 39 W. Va. 220, 19 S. E. 536, holding option to buy 
 timber, not limited, must be accepted within reasonable time; Snow v. Nelson. 113 
 Fed. 358, holding option on mining claim not assignable before acceptance: Dyer 
 v. Duffy, 39 W. Va. 154, 24 L. R. A. 341, 19 S. E. 540, holding option to sell land 
 must be accepted within reasonable time; Bruckman v. Hargadine-McKittrick 
 Dry Goods Co. 91 Mo. App. 465, holding time of essence of option to rehire use of 
 personal property; Brown v. San Francisco Sav. Union, 134 Cal. 452. 66 Pac. 
 592, holding option without consideration only continuing proposal, and may be 
 withdrawn before acceptance; Black v. Maddox, 104 Ga. 163, 30 S. E. 723, holding 
 option under seal imputes consideration which promisors cannot deny; Black v. 
 Maddox, 104 Ga. 163, 30 S. E. 723, holding option with consideration irrevocable 
 during time it has to run; James v. Darby, 40 C. C. A. 345, 100 Fed. 228, hold- 
 ing unconditional acceptance of offer not shown; Walker v. Bamberger, 17 Utah, 
 246. 54 Pac. 108, holding work upon mining claim and payments on acceptance of 
 option took case out of statute of frauds; Watson v. Coast, 35 W. Va. 470, 14 S. 
 E. 249, holding offer by letter to lease land, accepted unconditionally by telegram, 
 binding; Barrett v. McAllister, 33 W. Va. 746, 11 S. E. 220, holding tender of 
 purchase price on option for land within time limited excused by act of vendor; 
 McC'ormick v. Stephany, 61 N. J. Eq. 217, 48 Atl. 25, holding right to conveyance 
 not lost by covenantee demanding deed with covenants to which he is not en- 
 titled; Washington v. Rosario Min. & Mill. Co. 28 Tex. Civ. App. 441, 67 S. W. 
 459, holding that acceptance of offer to sell mining property must be uncondi- 
 tional; John v. Elkins, 63 W. Va. 362, 59 S. E. 961, holding there must be an 
 acceptance to render option a binding contract; Turner v. McCormick, 56 W Va. 
 173, 67 L.R.A. 860, 107 Am. St. Rep. 904, 49 S. E. 28, holding verbal acceptance 
 sufficient when option does not require a written one; New York L. Ins. Co. v. 
 Levy. 122 Ky. 468, 5 L.R.A.(N.S.) 745, 92 S. W 325; Beiseker v. Amberson, 17 
 N. D. 219. ]]6 X. W. 94; Batavia v. St. Louis S. W. R. Co. 126 Mo. App. 15, 103 
 S. W. 140, holding acceptance of offer must be unconditional in order to consti- 
 tute binding contract; Fulton v. Messenger, 61 W. Va. 481, 56 S. E. 830, holding 
 acceptance must be within time limited by terms of option; Pearson v. Millard, 
 150 N. C. 308, 63 S. E. 1053, holding acceptance was unconditional and sufficient; 
 Hardy v. Ward, 150 N. C. 391, 64 S. E. 171, holding an option to sell land is a 
 mere proposition by owner to sell, which until accepted, is unilateral; Bryant 
 Timber Co. v. Wilson. 151 N. C. 156. 134 Am. St. Rep. 982, 65 S. E. 932. holding 
 there being no valuable consideration an option to sell could be withdrawn at 
 any time before unconditional acceptance; Tibbs v. Zirkle, 55 W Ya. .>.% 104 
 Am. St. Rep. 977, 46 S. E. 701, 2 A. & E. Ann. Cas. 421 ; Simpson v. Sanders, 130 
 Ga. 270. 60 S. E. 541, holding offer based upon valuable consideration irrevocable 
 until expiration of time agreed upon by parties during which it was to remain 
 open; Trogden v. Williams, 144 N. C. 201, 10 L.R.A.(NS.) 871. 56 S. E. 865; 
 Harris Bros. v. Reynolds, 17 N. D. 21, 114 X. W. 369, holding there was no 
 acceptance under facts in case; Moise v. Rock Springs Distilling Co. 79 Neb. 127. 
 112 X. W. 372. holding one having an option must not only signify his intention 
 to accept within time limited, but must also pay or tender the price; Cameron v. 
 Shumway, 149 Mich. 641, 113 N. W 287, holding person holding option acquires 
 
 I 
 
3 L.R.A. 94] L. R. A. CASES AS AUTHORITIES. 432 
 
 no right in the property prior to his election to purchase; Herman v. Winter, 20 
 S. D. 202, 105 N. W. 457. holding in an option contract for the sale of land time 
 is of the essence and a tender or offer of payment must be made within time speci- 
 fied by party seeking to enforce the option; Cummins v. Beavers, 103 Va. 237, 
 106 Am. St. Rep. 881, 48 S. E. 891, 1 A. & E. Ann. Cas. 986, holding an option 
 to purchase land is valid and specifically enforceable though the consideration is 
 not paid until some time after option is given; Watkins v. Robertson, 105 Va. 
 282, 5 L.R.A.(N.S.) 1191, 115 Am. St. Rep. 880, 54 S. E. 33, holding where option 
 for the sale of stock at a specified price if accepted within a stated time upon 
 consideration of $1 it should be treated as an irrevocable covenant of which equity 
 would enforce specific performance if accepted within time specified; Couch v. Mc- 
 Coy, 138 Fed. 699, holding to constitute a valid retraction it must be communi- 
 cated to other party before acceptance; Mier v. Hadden, 148 Mich. 494, 118 Am. 
 St. Rep. 586, 111 N. W. 1040, 12 A. & E. Ann. Cas. 88, holding refusal of grantor 
 in an option for purchase of land, to perform before any demand was made on 
 him by the grantee was not a renunciation of contract effective to determine 
 grantee's rights where option was based on a valuable consideration. 
 
 Cited in footnote to Four Oil Co. v. United Oil Producers, 68 L.R.A. 226, which 
 holds binding contract not created by acceptance of offer to sell crude oil of 15 
 degrees gravity with stipulation that it must be of that gravity at 60 degrees 
 Fahrenheit. 
 
 Cited in notes (21 L. R. A. 129, 130) on rights conferred by a "refusal" or 
 "option;" (6 Eng. Rul. Cas. 133) on requisites of acceptance of offer; (6 Eng. Rul. 
 Cas. 154) on effect of introducing new terms in acceptance of offer. 
 
 Distinguished in Armstrong v. Ross, 61 W. Va. 47, 55 S. E. 895. holding refusal 
 of vendee in an executory contract of sale of real estate to perform contract 
 according to the time interpretation thereof accompanied by an offer to perform 
 in accordance with vendee's own erroneous interpretation thereof, does not entitle 
 vendor to rescission. 
 Enforcement of option. 
 
 Cited in Johnson v. Virginia-Carolina Lumber Co. 89 C. C. A. 632, 163 Fed. 251, 
 holding an option to be enforceable must be under seal or supported by a valuable 
 consideration; Corbett v. Cronkhite, 239 111. 17, 87 N. E. 874, holding an option 
 contract to convey land founded on a proper consideration may be specifically 
 enforced on the acceptance of its terms and a tender of the price within time 
 specified. 
 
 Cited in notes (6 L.R.A.(X.S.) 407) on right to specific performance of option 
 as affected by lack of mutuality; (24 L.R.A. (N.S.) 92, 94) on tender or payment 
 as condition precedent to suit for specific performance of option contract to con- 
 vey realty. 
 
 3 L. R, A. 110, COLLIN v. HILLS, 77 Iowa, 181, 41 N. W. 571. 
 Sale In original packages. 
 
 Cited in State v. Bowman, 79 Iowa, 567, 44 N. W. 813; State v. Zimmerman, 78 
 Iowa, 617, 43 N. W. 458; State v. Bow-man, 78 Iowa, 521, 43 N. W. 302: Grousen- 
 dorf v. Howat, 77 Iowa. 188. 41 X. W. 573, holding sale of liquor purchased in 
 another state and delivered in original packages, subject to laws of state; Leisy 
 v. Hardin, 78 Iowa, 288, 43 X. W. 188, holding sale of liquor in unbroken orig- 
 inal package, made out of state and sold by manufacturers, subject to laws of 
 state; State v. Fulker, 43 Kan. 250, 7 L. R. A. 188, 22 Pac. 1020, holding state 
 can regulate sale of liquor in original packages; People v. Lyng, 74 Mich. 588, 42 
 X. W. 139. holding liquor brought into state subject to its tax laws: State ex rel. 
 Cochran v. Winters, 44 Kan. 730, 10 L. R. A. 619, 25 Pac. 235, holding size of 
 
433 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 122 
 
 packages of liquor had nothing to do with their character as original packages; 
 Wind v. Her, 93 Iowa, 325, 27 L. R. A. 222, 61 X. W. 1001, holding character of 
 original package not destroyed by opening bung of barrel to test and inspect 
 liquor; State v. Coonan, 82 Iowa, 401, 3 Inters. Com. Rep. 670, 48 N. W. 921, 
 holding sale by manufacturers of separate bottles as put up by them in another 
 state, not to be drunk on premises, authorized; Austin v. Tennessee, 179 U. S. 
 359, 45 L. ed. 232, 21 Sup. Ct. Rep. 132, holding package of ten cigarettes not 
 original package, but subterfuge to escape effect of state law. 
 
 Cited in notes (7 L.R.A. 296) on right of state to prohibit sale of imported 
 liquors; (15 L.R.A. (X.S.) 925) on constitutional right to prohibit sale of intoxi- 
 cants; (39 L.R.A. (N.S.) 1055) on what constitutes original or unbroken package. 
 
 Distinguished in Hopkins v. Lewis, 84 Iowa, 691, 15 L. R. A. 398, 51 N. W. 
 255. holding sales not shown to be of original packages. 
 
 Cited as obiter and overruled in McGregor v. Cone, 104 Iowa, 474, 39 L. R, A. 
 4S7 ; 65 Am. St. Rep. 522, 73 N. W. 1041, holding box in which sealed packages of 
 cigarettes are packed for shipment the original package of commerce. 
 
 3 L. R. A. 114, GOUDY v. WERBE, 117 Ind. 154, 19 N. E. 764. 
 
 Cited in Chatten v. Snider, 126 Ind. 390, 26 N. E. 166, holding exemption laws 
 are to be liberally construed in favor of debtor and his family. 
 exemption of partnership property. 
 
 Cited in State ex rel. Miller v. Day, 3 Ind. App. 158, 29 N. E. 436, holding ex- 
 emption cannot be claimed in property apportioned to partner on dissolution of 
 partnership, as against execution previously issued against firm; Lee v. Bradley 
 Fertilizer Co. 44 Fla. 797. 53 So. 456, holding fraud cannot be imputed to the 
 acquisition by partners of the ownership in severalty of the partnership property 
 on the ground that such ownership in severalty was acquired with the intent and 
 for the purpose of exempting such property from partnership debts. 
 Rights of firm creditors in partnership property. 
 
 Cited in Johnson v. McClary, 131 Ind. 106, 30 X. E. 888, holding firm creditors 
 have no special interest in partnership property, except through rights of part- 
 ners: Selz, S. & Co. v. Mayer, 151 Ind. 429, 51 X. E. 485, holding sale by partner 
 of interest in firm property is waiver of lien, and in absence of fraud good as 
 against firm creditors; Simmons Hardware Co. v. Thomas, 147 Ind. 320, 46 X. E. 
 <;4.-> : Studebaker Bros. Mfg. Co. v. Bird, 119 Ind. 429, 21 X. E. 1086; Purple v. 
 Farrington, 119 Ind. 171, 4 L. R. A. 538, 21 X. E. 543; Elliott v. Pontius, 136 
 Ind. 647. 35 X. E. 564, holding mortgage of partnership property by firm in good 
 faith, for debt of individual partner, not ground for setting aside; Mannen v. 
 Bailey, 51 Kan. 447, 32 Pac. 1085, holding partner furnishing capital of firm may 
 mortgage firm property to secure loan procured for use of partnership. 
 
 Cited in note (2 L.R.A.(X.S.) 256) on right of partnership as against firm 
 creditors to sell or mortgage firm property to discharge or secure member's indi- 
 vidual debt. 
 Indebtedness of individual partners. 
 
 Cited in note (29 L. R. A. 682) on assumption by partnership of individual 
 debts of partners. 
 
 3 L. R, A. 122, MILFORD v. MILFORD WATER CO. 124 Pa. 610, 17 Atl. 185. 
 Illegality as defense to contract generally. 
 
 Distinguished in Union Trust Co. v. Preston Xat. Bank, 136 Mich. 464, 112 
 Am. St. Rep. 370, 99 X. W. 399, 4 A. & E. Ann. Cas. 347, holding a certified check 
 L.R.A. Au. Vol. I. 28. 
 
3 L.R.A. 122] L. R. A. CASES AS AUTHORITIES. 434 
 
 is valid in the hands of a bona fide holder, although check was certified when 
 drawer had no funds in bank which was a crime by statute. 
 
 Municipal and other corporate contracts as affected by interest or ille- 
 gality. 
 
 Cited in Jolly v. Pittsburg, N. I. & C. R. Co. 16 Pa. Co. Ct. 7, 26 Pittsb. L. T. 
 N. S. 331, holding ordinance allowing railroad company use of street void, when 
 stockholders members of council ; Wood v. Elliott, 26 Pittsb. L. J. X. S. 336, hold- 
 ing contract of council to purchase lot of member for town hall void; Re Hazle 
 Twp. 6 Kulp, 492, 1 Pa. Dist. R. 814, denying right of township supervisors to 
 employ their own teams or minor children on township roads; Kennett Electric 
 Light Co. v. Kennett Square, 4 Pa. Dist. R. 707, 8 Kulp, 106, holding contract 
 between borough and corporation for lights, whose stockholders members of coun 
 cil, void; Riebe v. Walton, 18 Pa. Co. Ct. 294, 5 Pa. Dist. R, 558, holding contract 
 with burgess for construction of sewer void; Ellwood Lumber Co. v. Frey. 19 Pa. 
 Co. Ct. 62, 27 Pittsb. L. J. X. S. 382, holding contract between corporation and 
 school directors to build schoolhouse void, where manager member of school board ; 
 State, Stroud, Prosecutor, v. Consumers' Water Co. 56 N. J. L. 430, 28 Atl. 578, 
 holding ordinance for purchase of waterworks, in which four members of council 
 voting therefor are stockholders, is illegal; Delaware River Quarry & Constr. Co. 
 v. Bethlehem & N. Street R. Co. 7 Xorthampton Co. Rep. 347, denying recovery on 
 contract for construction of street railroad when party has failed to register; 
 Swift & Co. v. Dyer-Veatch Co. 28 Ind. App. 6, 62 X. E. 70, holding mortgage by 
 majority of directors securing debts for which such directors are liable as sure- 
 ties void; Sturr v. Elmer, 75 X. J. L. 445, 67 Atl. 1059, holding purchase by bor- 
 ough of lands belonging to member of common council invalid; Com. v. Caven, 
 15 Pa. Dist. R. 293, holding a contract with the city to furnish, deliver and place 
 all sand, gravel, lateral connections and appurtenances required by specifications 
 for a filter plant is within reclaiming of act prohibiting a member, officer or agent 
 of any corporation or public institution from being interested in any contract for 
 furnishing supplies to the same; Com. v. Cloud, 36 Pa. Co. Ct. 192, 19 Pa. Dist. 
 R. 300, holding the farming by borough councilman of teams and drivers tor the 
 public work of the borough and receiving compensation for use of same from 
 borough, is furnishing supplies within meaning of statute; Com. v. Witman. 217 
 Pa. 415, 66 Atl. 986, 15 Pa. Dist. R. 212, holding statute prohibiting any member 
 of a municipality from being interested in furnishing supplies to it applies to 
 a councilman who is interested in furnishing supplies for use of such municipality; 
 Com. ex rel. Melvin v. Paul, 15 Pa. Dist. R. 680, holding act which forbids member 
 of a corporation or public institution to be interested in contracts for supplies 
 for use of corporation does not apply where goods are sold to municipality in the 
 way of trade, in the absence of any contract other than that implied by law for 
 their payment. 
 
 Cited in notes (15 L. R. A. 522) on power of officer to contract with public body 
 or municipality which he represents; (61 L. R. A. 68, 74) on establishment and 
 regulation of municipal water supply; (12 Am. St. Rep. 294) on invalidity of 
 corporate contract where directors are disqualified. 
 
 Distinguished in Marshall v. Ellwood City, 189 Pa. 352, 43 W. X. C. 482, 41 
 Atl. 994, holding water ordinance not invalid because of interest of councilman, 
 where there is majority vote therefor without vote of such member; Trainer v. 
 Wolfe, 140 Pa. 288. 27 W. X. C. 526, 21 Atl. 391, holding contract for purchase 
 of real estate by school board financially interested in sale voidable; Rumsey v. 
 New York & P. R. Co. 203 Pa. 584. 53 Atl. 495, sustaining contract in effect al- 
 lowing officers to participate in profits of construction of railroad, as valid where 
 made. 
 
435 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 125 
 
 Sufficiency of evidence. 
 
 Cited in Com. v. Paul, 32 Pa. Co. Ct. 70, holding a writ of quo warranto against 
 a councilman alleged to be interested in city contracts will be quashed where the 
 evidence fails to show the character of the contracts, or their legality, or that 
 respondent had any knowledge of the contracts alleged to have been made with 
 the city by a partnership of which he was a member. 
 iiatiflcation of illegal municipal contracts. 
 
 Cited in Findlay v. Pertz, 29 L.R.A. 194, 13 C. C. A. 570, 31 U. S. App. 340, 66 
 Fed. 438, holding contract with city procured by fraud, but not in itself unlawful, 
 is subject to ratification; Indianapolis v. Wann, 144 Ind. 188, 31 L.R.A. 747, 42 
 N. E. 901, holding contract for street lighting, illegal because made without 
 previous appropriation, not ratified by subsequent appropriation; Resnek v. 
 Nazareth School Dist. 19 Pa. Dist. R. 725, 12 North. Co. Rep. 244, holding that 
 purchase of realty by school board from member, in good faith, at fair price, 
 may be ratified after he has ceased to be member; Philadelphia v. Durham, 16 Pa. 
 Dist. R. 91, as to their being incapable of ratification. 
 
 Distinguished in Trainer v. Wolfe, 140 Pa. 288, 21 Atl. 319, holding purchase 
 by school board of real estate in which director interested as owner may be rati- 
 fied by disinterested board. 
 
 3 L. R. A. 124, LAFFERTY v. SCHUYLKILL RIVER E. S. R. Co. 124 Pa. 297, 
 
 10 Am. St. Rep. 587, 16 Atl. 869. 
 Damagres from eminent domain. 
 
 Cited in Pennsylvania S. Valley R. Co. v. Ziemer, 124 Pa. 570, 17 Atl. 187, 
 holding right of action for consequential damages does not arise till after con- 
 struction of railroad. 
 
 Cited in note (21 L. R. A. 216) on rights of tenants and reversioners of prop- 
 erty taken by eminent domain. 
 Emblemeuts. 
 
 Annotation cited in Hetfield v. Lawton, 108 App. Div. 116, 95 N. Y. Supp. 451, 
 on tenants right to emblements. 
 Possession of laud as notice of title. 
 
 Cited in notes (13 L.R.A.(N.S.) 97) on possession of land as notice of title; 
 (11 Eng. Rul. Cas. 548) on possession as evidence of seisin. 
 
 3 L. R. A. 125, CIGAR-MAKERS PROTECTIVE UNION NO. 98 v. COXHAIM, 
 
 40 Minn. 243, 12 Am. St. Rep. 726, 41 N. W. 943. 
 What constitutes trade-mark. 
 
 Cited in J. R. Watkins Medical Co. v. Sands, 80 Minn. 91, 82 N. W. 1109, hold- 
 ing that phrase "Dr. Ward's Liniment," with line passing through words hori- 
 zontally, used for over twenty years, is trade-mark; People v. Danturna, 252 111. 
 566, 39 L.R.A.(N.S.) 1195, 96 N. E. 1087, holding that union label is not a trade- 
 mark. 
 
 Cited in footnotes to Cohn v. People, 23 L. R. A. 821, which holds statute giving 
 right to trade-mark in union label valid; Koehler v. Sanders, 9 L. R. A. 576, 
 which denies right to appropriate word "international" as trade-mark. 
 
 Cited in notes (9 L. R. A. 145) on what trade-mark may consist of; (19 L. R. 
 A. 56) on invalidity of deceptive trade-marks. 
 Right to nse counterfeit of union label. 
 
 Cited in Weener v. Brayton. 152 Mass. 103, 8 L. R. A. 642, 25 N. E. 46, holding 
 that members of cigar makers' union cannot maintain bill to restrain infringe- 
 ment of union label as trade-mark. 
 
3 L.R.A. 125] L. R. A. CASES AS AUTHORITIES. 436 
 
 Cited in footnotes to McVey v. Brendel, 13 L. R. A. 3~i~, which holds equity will 
 not protect labor union in use of nontrade-mark label; Carsons v. Ury, 5 L. R. A. 
 614, which authorizes injunction against counterfeit of union label. 
 
 Cited in notes (29 L. R. A. 200) on protection of trade union labels or trade- 
 marks; (39 L. R. A. (X. S.) 1191, 1192), on law as to union labels. 
 
 Distinguished in Carson v. Ury, 5 L. R. A. 616, 39 Fed. 780, holding cigar manu- 
 facturer, using union label of cigar makers' union, may enjoin another manu- 
 facturer from using counterfeit label. 
 
 Disapproved in Hetterman Bros. v. Powers, 102 Ky. 140, 39 L. R. A. 213, 80 
 Am. St. Rep. 348, 43 S. W. 180, and State v. Hagen, 6 Ind. App. 170, 33 X. E. 
 223, holding members of cigar makers' union, though not manufacturers, entitled 
 to sue in equity to protect interests of members in union label against frauds and 
 counterfeiters; State v. Bishop, 128 Mo. 381, 29 L. R. A. 205, 49 Am. St. Rep. 569 r 
 31 S. W. 9, holding label of cigar makers' union within statute making unauthor- 
 ized use of label adopted by union of workingmen misdemeanor (overruling in 
 effect State v. Berlinsheimer, 62 Mo. App. 174, holding same label not within 
 statute). 
 Infringement of trade-mark. 
 
 Cited in footnotes to Symonds v. Jones, 8 L. R. A. 570, which holds that trans- 
 ferer of trade-mark, though containing nis name or initials, cannot use same; 
 Chadwick v. Covell, 6 L. R. A. 839, which holds grantee of trade-mark to medicine 
 made according to secret recipes, whose right to use is not exclusive, not entitled to 
 enjoin use by others; Converse v. Hood, 4 L. R. A. 521, which holds stockholder of 
 corporation cannot enjoin infringement of trade-mark used by company. 
 
 Cited in note (5 L. R. A. 130) on violation of trade-mark. 
 
 3 L. R. A. 129, MISSOURI P. R. CO. v. VANDEVENTER, 26 Neb. 222, 41 N. W. 
 
 998. 
 Railroad contracts limiting: liability. 
 
 Cited in Pennsylvania Co. v. Kennard Glass & Paint Co. 59 Xeb. 444, 81 X. W. 
 372; Union P. R. Co. v. Metcalf, 50 Xeb. 460, 69 X. W. 961; St. Joseph & G. L 
 R. Co. v. Palmer, 38 Xeb. 471, 22 L. R. A. 338, 4 Inters. Com. Rep. 497, 56 X. W. 
 957; Omaha & R. Valley R. Co. v. Crow, 47 Xeb. 91, 66 X. W. 21, holding railroad 
 cannot, by special agreement, limit liability as common carrier; Grieve v. Illi- 
 nois C. R. Co. 104 Iowa, 662, 74 X. W. 192, holding provision in shipping agree- 
 ment, requiring notice of claim for loss or damage to stock within ten days after 
 removal from cars, invalid; Ohio & M. R. Co. v. Tabor, 98 Ky. 510, 34 L. R. A. 
 689, 36 S. W. 19, holding provision in shipping agreement, requiring written no- 
 tice of injury to stock before unloading, invalid; Union P. R. Co. v. Thompson, 
 75 Xeb. 470, 106 X. W. 598, holding a stock shipping contract containing a pro- 
 vision that unless claims for loss, damage or detention are presented within ten 
 days from date of unloading such claims should be deemed to be waived, void; 
 Latta v. Chicago, St. P. M. & 0. R. Co. 97 C. C. A. 198, 172 Fed 854, holding con- 
 tract limiting among recoverable for loss or injury to livestock at certain price 
 per head regardless of actual value, void ; Whitnack v. Chicago, B. & Q. R. Co. 
 82 Xeb. 470, 19 L.R.A.(X.S ) 1017, 130 Am. St. Rep. 602, 118 X. W. 67. holding 
 under Constitution railway company could not contract to limit its liability nor 
 relieve itself from its negligence as a common carrier. 
 
 Cited in notes (13 L.R.A.(X.S.) 754) on validity of contract limiting time for 
 bringing action, or presenting claims for damages, where carrier prohibited from 
 limiting its common-law liability; (13 Am. St. Rep. 783) on extortion of unau- 
 thorized stipulations from shippers and their effect; (88 Am. St. Rep. 129) on 
 limitation of carrier's liability in bills of lading. 
 
437 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 133 
 
 Distinguished in Chicago, St. P. M. & O. R. Co. v. Schuldt, 66 Neb. 47, 92 X. \V. 
 162, holding the agreement that shipper shall accompany the stock and be respon- 
 sible for its care is, when proper facilities are supplied, not a limitation on car- 
 rier's liability as contemplated by state Constitution. 
 Special verdict of jury. 
 
 Cited in Town v. Missouri P. R. Co. 50 Neb. 779, 70 N. W. 402, and Sandwich 
 Enterprise Co. v. West, 42 Neb. 728, 60 N. W. 1012, holding failure of jury to 
 return special findings in answer to immaterial questions not ground for reversal. 
 
 3 L. R. A. 133, COXOLLY v. CRESCENT CITY R. CO. 41 La. Ann. 57, 17 Am. St. 
 
 Rep. 389, 5 So. 259. 
 Obligation of railrontl to nH-k or demented passenger. 
 
 Cited in Lake Shore & M. S. R. Co. v. Salzman, 52 Ohio St. 566, 31 L. R. A. 
 264, 49 Am. St. Rep. 745, 40 N. E. 891, holding railroad bound to give sick person 
 on train such care as is fairly practicable, without unreasonable delay of train; 
 Weightman v. Louisville, N. O. & T. R. Co. 70 Miss. 568, 19 L. R. A. 672, 35 Am. 
 St. Rep. 660, 12 So. 586, holding railroad liable for death of sick passenger car- 
 ried past station and put off train at night and neglected for forty hours; Haug 
 v. Great Northern R. Co. 8 N. D. 30, 42 L. R. A. 670, 73 Am. St. Rep. 727, 77 N. 
 W. 97, holding railroad liable for death of intoxicated person from being carried 
 past station and ejected from depot in storm; Fagg v. Louisville & N. R. Co. 
 Ill Ky. 38, 54 L. R. A. 922, 63 S. W. 580, holding railroad liable for death of 
 trespasser on train, caused by his ejection in intoxicated condition shortly before 
 passage of another train; Louisville & X. R. Co. v. Ellis, 97 Ky. 340, 30 S. W. 
 1)79, holding railroad liable for death of drunken passenger ejected from train 
 for refusal to pay fare, under circumstances such as would necessarily or prob- 
 ably expose him to danger; St. Louis, I. M. & S. R. Co. v. Woodruff, 89 Ark. 16, 
 115 S. W. 953, holding in removing an unattended passenger who becomes insane 
 on train it is duty of company to use reasonable care and prudence in regard 
 to passengers safety; Pullman Car Co. v. Krauss, 145 Ala. 400, 4 L.R.A.(X.S ) 
 105, 40 So. 398, 8 A. & E. Ann. Gas. 218, holding a sleeping car company is not 
 bound to admit persons as passengers on its cars who are afflicted with a con- 
 tagious or infectious disease; Bragg v. Norfolk & W. R. Co. 110 Va. 871, 67 S. E. 
 593. holding railroad liable, where station agent permits drunken passenger put 
 off train to wander off alone in deep snow. 
 
 Cited in footnotes to Dwindle v. New York C. & H. R. R. Co. 8 L. R. A. 224, 
 which holds railroad company liable for acts of porter of sleeping or drawing- 
 room car; Paddock v. Atchison T. & S. F. R. Co. 4 L. R. A. 231, which upholds 
 carrier's right to remove passenger apparently broken out with smallpox. 
 
 Cited in notes (31 L. R. A. 263 on duty of carrier to passenger taken ill during 
 journey; (19 L. R. A. 328) on exposure of drunken passenger to danger by ejec- 
 tion from car; (12 LR.A. 339) on liability of carrier for tortious acts of agents; 
 (4 L.R.A.(X.S.) 104) on right of carrier to reject persons having contagious 
 disease; (118 Am. St. Rep. 466) on duties and liabilities of street railway com- 
 panies toward disabled passengers. 
 
 Distinguished in Griswold v. Boston & M. R. Co. 183 Mass. 437, 67 N. E. 354, 
 denying damages for injuries from being run down by engine while on track ; 
 Bohannon v. Southern R. Co. 112 Ky. 114, 65 S. W. 169, denying damages for 
 death of drunken passenger who alighted from train at coal chute; Hudson v. 
 Lynn B. R. Co. 185 Mass. 520, 71 N. E. 66, holding person who was carried 
 from a car in an unconscious condition and laid by side of track and run over 
 and killed was not in exercise of due diligence w!*' i statute giving right of 
 
3 L.R.A. 133] L. R. A. CASES AS AUTHORITIES. 43 
 
 action against street railway for death of one caused by negligence of street car 
 company while person killed was exercising due diligence. 
 
 3 L. R. A. 137, LARKIN v. HECKSHER, 51 N. J. L. 133, 16 Atl. 703. 
 Employment for stated term. 
 
 Cited in Mallory v. Mackaye, 34 C. C. A. 656, 92 Fed. 752, holding that contract 
 of employment running ten years, unless terminated by employer at end of any 
 year, is entire; Lee v. Dow, 71 N. H. 328, 51 Atl. 1072, sustaining right of action 
 for wrongful discharge, begun before expiration of contract; E. I. Du Pont Co. v 
 Waddell, 101 C. C. A. 335, 178 Fed. 413, holding in an action for alleged wrongful- 
 discharge of a servant, whether plaintiff's contract was for a year or from month 
 to month at the will of either party was a question for the jury; Ramsey v. Perth 
 Amboy Shipbuilding & Engineering Co. 72 K J. Eq. 167, 65 Atl. 461, holding 
 where a contractor fails to fulfil his contract, it is the duty of the other party 
 to make reasonable exertions to mitigate loss; Maynard v. Royal Worcester Corset 
 Co. 200 Mass. 7, 85 X. E. 877, holding in absence of proof by defendant that 
 plaintiff found or could have found other employment of some kind reasonably 
 adapted to his abilities, plaintiff is entitled to recover salary fixed by contract. 
 
 Cited in footnote to Olmstead v. Bach, 18 L. R. A. 53, which holds judgment 
 for one week's wages after dismissal not bar to suit for subsequent wages. 
 
 Cited in notes (24 L.RA. 231) on effect of part performance of contract for 
 services; (6 L.R.A.(N.S.) 96) on remedy of wrongfully discharged servant by ac- 
 tion for breach of contract; (30 Am. St. Rep. 57) on entirety of contract of 
 hiring. 
 Justification for discharge of servant. 
 
 Cited in Burt v. Catlin, 65 App. Div. 457, 72 N. Y. Supp. 924, holding mere 
 fact of assault by servant on another servant not necessarily justification : 
 Walker v. John Hancock Mut. L. Ins. Co. 80 N. J. L. 344, 35 L.R.A. (N.S.) 157, 
 79 Atl. 354, Ann. Cas. 1912 A, 526, holding refusal of insurance agent to permit 
 inspection of his work sufficient cause for discharge. 
 
 3 L. R. A. 139, POWELL v. KELLY BROS. 82 Ga. 1, 9 S. E. 278. 
 Absolute conveyance to creditor not general assignment. 
 
 Cited in Fulton v. Gibian, 98 Ga. 232, 25 S. E. 431, holding mortgages and as- 
 signment of choses in action not assignment for creditors where no trust imposed : 
 Stillwell v. Savannah Grocery Co. 88 Ga, 141, 13 S. E. 963. holding absolute con- 
 veyance in consideration of antecedent debt and promise to pay other debts of 
 grantor, without reservation of trust, not general assignment; Rosenplantcr v. 
 Toof, 99 Tenn. 100, 41 S. W. 336, holding absolute bill of sale in consideration of 
 grantee paying debts specified obligates grantee to pay, regardless of amount 
 realized from property. 
 
 Cited in notes (36 L. R. A. 353) on right of creditor to buy property front 
 debtor in satisfaction of debt; (37 L. R. A. 341) on whether preference by mort- 
 gage or sale an assignment for creditors; (94 Am. St. Rep. 230) on assignment 
 for creditors as sale. 
 Right of debtor to control surplus In conveyance to creditor. 
 
 Cited in Fechheimer v. Baum. 43 Fed. 724, holding that since repeal of last 
 clause of Ga. Code. 1953, mortgage may provide that surplus shall go to other 
 favored creditors: Boykin v. Epstein, 94 Ga. 762, 22 S. E. 218, holding insolvent, 
 may assign choses in action not within description of "negotiable paper," as col- 
 lateral security for debt of assignee. 
 
 Distinguished in Johnson v. Adams. 92 Ga. 552, 17 S. E. 898, holding that 
 
439 L. R. A. CASES AS AUTHORITIES. [3 L.R,A. 145 
 
 transfer of property by insolvent debtor under agreement of grantee to pay part 
 
 of proceeds to third party and apply balance on debt due himself is assignment for 
 
 creditors. 
 
 Preferences In general assignments. 
 
 Cited in footnotes to Manning v. Beck, 14 L. R. A. 198, which holds bona fide 
 transferee not affected by debtor's intention to make general assignment for cred- 
 itors; Van Raalte v. Harrington, 11 L. R. A. 424, which holds relationship of 
 preferred creditors fact for consideration on question of fraud. 
 
 Cited in notes (6 L. R. A. 110) on validity of assignment for benefit of cred- 
 itors; (11 L. R. A. 467; 12 L. R. A. 810) on right to make preferences in general 
 assignment; (6 L.R.A. 109) on construction of insolvency statutes; (58 Am. St. 
 Rep. 95) on fraudulent assignments for creditors. 
 
 3 L. R. A. 142, BOLLONG v. SCHUYLER NAT. BANK, 26 Neb. 281, 18 Am. St. 
 
 Rep. 781, 41 N. W. 990. 
 Jurisdiction; estoppel to deny. 
 
 Cited in note (15 L. R. A. 274) on estoppel of party revoking jurisdiction to 
 deny it. 
 
 Disapproved in Freer v. Davis, 52 W. Va. 12, 59 L. R. A. 562, 94 Am. St. Rep. 
 895, 43 S. E. 164, holding plaintiff not estopped to deny jurisdiction of court in 
 which he has brought suit. 
 Res judicata. 
 
 Cited in footnote to Weir v. Marley, 6 L. R. A. 672, which holds decision on 
 habeas corpus as to custody of child res judicata. 
 
 Cited in notes (7 L. R. A. 578) on doctrine of res judicata; (11 L. R. A. 311) 
 on judgment as a bar. 
 
 3 L. R. A. 145, COTTMAN v. GRACE, 112 N. Y. 299, 19 N. E. 839. 
 Doctrine of charitable uses. 
 
 Cited in Simmons v. Burrell, 8 Misc. 395. 28 N. Y. Supp. 625, holding doctrine 
 of charitable uses does not prevail in state of New York; Troutraan v. De 
 Boissiere Odd Fellows' Orphans' Home, Kan. , 5 L.R.A. (N.S.) 698, 64 Pac. 
 33, holding courts of equity look with favor upon gifts to charity. 
 
 Cited in notes (5 L. R. A. 33) on statute of uses and trusts; (6 L. R. A. 511) 
 on charitable gifts; (6 L. R. A. 84) on what constitutes public charities; (4 L. 
 R. A. 699) on gifts to public charity favored by law; (14 L.R.A.(N.S.) 82) on 
 enforcement of general bequest for charity or religion. 
 
 Cited as changed by statute in Allen v. Stevens, 161 N. Y. 140, 55 N. E. 568, 
 Reversing 33 App. Div. 499, 54 N. . Supp. 8, holding ancient law touching 
 charitable uses for indefinite beneficiaries restored by Laws 1893, chap. 701. 
 Indefiniteness of beneficiary in legacies. 
 
 Cited in Murray v. Miller, 178 N. Y. 322, 70 N. E. 870, Affirming 85 App. Div. 
 421, 83 N. Y. Supp. 591, holding devise of real property to treasurer of unincorpo- 
 rated religious society for its use, void; Re Zimmerman, 22 Misc. 414, 50 N. Y. 
 Supp. 395, and Vanderveer v. McKane, 25 Abb. N. C. 107, 11 N. Y. Supp. 808, 
 holding legacies to pastors of churches "designated, for masses, not bequests to 
 corporations; Loch v. Mayer, 50 Misc. 446, 100 N. Y. Supp. 837, as to doctrine 
 of cy pres as it exists in New York; Re Zimmerman, 2 Gibbons, Sur. Rep. 360, 
 holding that bequest to priest of named church for masses is not void for in- 
 definiteness of beneficiary. 
 
 Cited in footnotes to Johnson v. Johnson, 22 L. R. A. 179, which holds devise 
 to trustees for some charitable purpose, preference to be given to something of edu- 
 
3 L.R.A. 145] L. R. A. CASES AS AUTHORITIES. 440 
 
 cational nature, bad for indefiniteness; People ex rcl. Atty. Gen. v. Dashaway 
 Asso. 12 L. R. A. 117, which holds promotion of cause of temperance too vague 
 description of purpose for which corporation formed; Gambel v. Trippe, 15 L. R. 
 A. 235, which holds bequest to trustees to be paid over "to some Presbyterian in- 
 stitution" in specified city void for indefiniteness; Cross v. United States Trust 
 Co. 15 L. R. A. 606, which upholds bequest valid by law of testator's domicil ; 
 Harrington v. Pier, 50 L. R. A. 307, which holds bequest for promotion of "tem- 
 perance work" in certain city not fatally indefinite; Crerar v. Williams, 21 L. R. 
 A. 454, which holds bequest for "erection, creation, maintenance, and endowment 
 of free public library," to be located in city named, not void for uncertainty ; 
 Woman's Foreign Missionary Soc. v. Mitchell, 53 L. R. A. 711, which holds 
 legacy to foreign missionary society for education of six girls, to be selected in 
 India, and for purchase of building for education of girls, not void for indefinite- 
 ness; Thompson v. Brown, 62 L. R. A. 398, which holds devise of fund to be dis- 
 tributed by executor to poor, in his discretion, valid. 
 
 Cited in note (12 L. R. A. 415) on bequests held void for uncertainty. 
 Legacy creating? perpetuity. 
 
 Cited in Re Williams, 1 Misc. 443, 23 N. Y. Supp. 150, holding bequests to 
 conference of Methodist Episcopal Church, in trust for payment of pastor's 
 salary, invalid; Re Daniels, 41 Misc. 302, 84 N. Y. Supp. 684, holding immediate 
 bequest to religious society "in trust" for repairs valid; Fairchild v. Edson, 154 
 N. Y. 210, 61 Am. St. Rep. 609, 48 N. E. 541, Affirming 77 Hun, 303, 28 X. Y. 
 Supp. 401, holding bequest to executive officer of society, "absolutely," to be by 
 him applied to uses of society, invalid; Beecher v. Yale, 79 N. Y. S. R. 625, 45 N. 
 Y. Supp. 622, holding that direction in will that income from stated sum be per- 
 manently invested for support of library named creates perpetuity; Stevens v. 
 Annex Realty Co. 173 Mo. 523, 73 S. W. 505, upholding deed to trustees of land to 
 be laid out in streets and parks; Locke v. Rings, 66 Hun, 442, 21 N. Y. Supp. 
 524 (dissenting opinion), majority holding trust deed providing that income from 
 stocks be paid to charitable institutions named violates statute against 
 perpetuities; Lyons v. Bradley, 168 Ala. 517, 53 So. 244, holding that private 
 trust cannot be extended beyond legal limitations of a perpetuity. 
 
 Cited in notes (4 L.R.A. 141; 11 L.R.A. 85) on rule against perpetuities; (49 
 Am. St. Rep. 127) on rule against perpetuities. 
 Legacy to corporation for purposes of trust. 
 
 Cited in Tabernacle Baptist Church v. Fifth Ave. Baptist Church, 60 App. Div. 
 334, 70 N. Y. Supp. 181, holding statute permitting religious societies to take and 
 hold property for their own use does not authorize corporation to hold property 
 in trust for others; First Presby. Church v. McKallor, 35 App. Div. 101, 54 N. Y. 
 Supp. 740, holding bequest to church in trust for care of burial lot not owned by 
 it not within statute against perpetuities. 
 
 Cited in footnotes to Re Sellers Chapel M. E. Church, 11 L. R. A. 282, which 
 upholds trust for charitable use created by conveyance to trustees for erection 
 of church; Penny v. Croul, 5 L. R. A. 858, which holds that board of water com- 
 missioners may receive gift of income to ornament waterworks grounds and main- 
 tain library thereon. 
 
 Cited in notes (11 L. R. A. 214) on trusts in temporalities of religious corpo- 
 rations; (14 L. R. A. 70) on municipal corporation as trustee of charity; (13 
 L. R. A. 218) on power of municipal corporations to take and administer property 
 in trust for charitable use. 
 
 Distinguished in Re Williams 64 Hun, 165, 18 N. Y. Supp. 820, holding be- 
 quest to corporation with limitation on its management of fund valid, limitation 
 being disregarded. 
 
441 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 156 
 
 Conversion of real property Into personalty. 
 
 Cited in Re Russell, 59 App. Div. 247, 69 N. Y. Supp. 563, and Re Fitzsimons, 
 29 Misc. 206, 61 N. Y. Supp. 485, holding direction in will to sell real estate for 
 payment of legacies effects equitable conversion of same into personalty. 
 
 Cited in note (5 L. R. A. 104) on equitable conversion under power of sale in 
 will. 
 
 Construction of -will. 
 
 Cited in McHugh v. McCole, 97 Wis. 176, 40 L. R. A. 728, 72 N. W. 631, and Re 
 Walkerly, 108 Cal. 660, 49 Am. St. Rep. 97, 41 Pac. 772, holding that provisions 
 of will cannot be wrested from natural import to save it from condemnation, 
 when language is plain and unambiguous. 
 
 Cited in footnote to Adams Female Academy v. Adams, 6 L. R. A. 785, which 
 authorizes use for public school, of fund bequeathed to establish "female 
 academy." 
 
 3 L. R. A. 150, HILL v. SILVEY, 81 Ga. 500, 8 S. E. 808. 
 How subscriber to capital stock released. 
 
 Cited in Nettles v. Marco, 33 S. C. 54, 11 S. E. 595, holding subscription to 
 stock of company a special agreement from which directors could release sub- 
 scriber on failure of consideration; Walters v. Porter, 3 Ga. App. 78, 59 S. E. 
 452, holding persons who organize a company and transact business before the 
 minimum capital stock has been subscribed for cannot escape liability to credit- 
 ors of such company by selling their stock to the corporation itself before the 
 debts were incurred. 
 
 3 L. R. A. 156, WAGNER v. MISSOURI P. R. CO. 97 Mo. 512, 10 S. W. 486. 
 
 Report of later appeal in 124 Mo. 240, 25 S. W. 229. 
 Who is a passeng-er. 
 
 Cited in Fitzgibbon v. Chicago & N. W. R. Co. 108 Iowa, 619, 79 N. W. 477, 
 holding one boarding special train known to be for certain class not presumptively 
 passenger ; Everett v. Oregon Short Line & U. N. R. Co. 9 Utah, 349, 34 Pac. 289, 
 holding section hand riding in caboose of freight train had right to proper care 
 from railroad; McCarter v. Greenville Traction Co. 72 S. C. 136, 51 S. E. 545, 5 
 A. & E. Ann. Cas. 42, holding where a passenger entered a special street car 
 chartered by a particular person, and tendered the amount of his passage, and 
 kept his seat with the knowledge and consent of the conductor, who intended to 
 transport him to his destination, the carrier waived the right to insist that he 
 was not a passenger, and was liable for his subsequent expulsion. 
 
 Cited in footnotes to Mendenhall v. Atchison, T. & S. F. R. Co. 61 L. R. A. 120, 
 which holds one riding on platform of baggage car at direction of brakeman, to 
 whom money paid, not a passenger; Whitehead v. St. Louis, I. M. & S. R. Co. 6 
 L. R. A. 409, which holds duty owed to one riding on freight train with consent 
 of agents in charge; Chattanooga Rapid Transit Co. v. Venable, 51 L. R. A. 886, 
 which holds night watchman at depot, getting on train to announce readiness to 
 resume duty, a passenger; Louisville & N. R. Co. v. Weaver, 50 L. R. A. 381, 
 which holds station agent riding on train without paying fare, several hours 
 after work ended, a passenger. 
 
 Cited in notes (61 Am. St. Rep. 96) on who are passengers and when they 
 become such; (37 L.R.A.(N.S.) 423) on liability of railroad company for injury 
 to person wrongfully on train by collusion with a train employee. 
 "What risks passenger assumes. 
 
 Cited in Fisher v. Central Lead Co. 156 Mo. 486. 56 S. W. 1107, holding allofrn- 
 tion of assumption of risk in answer waives its nonallegation in petition; Wait 
 
3 L.R.A. 156] L. R. A. CASES AS AUTHORITIES. 442 
 
 v. Omaha, K. C. & E. R. Co. 165 Mo. 621, 65 S. W. 1028, holding railway com- 
 pany not liable to passenger thrown to floor of car while standing; Erwin v. Kan- 
 sas City, Ft. S. & M. R. Co. 94 Mo. App. 296, 68 S. W. 88, holding that passenger 
 asleep on seat in caboose takes all risks incident to the position; Morrow v. Pull- 
 man Palace Car Co. 98 Mo. App. 360, 73 S. W. 281, sustaining passenger's recov- 
 ery for loss of valuables while asleep in sleeping car; Willmott v. Corrigan Consol. 
 Street R. Co. 106 Mo. 543, 17 S. W. 490, holding street railway must use proper 
 care in carrying person riding on front step of car; Whitehead v. St. Louis, I. 
 M. & S. R. Co. 99 Mo. 268, 6 L. R. A. 411, 11 S. W. 751, holding railroad liable 
 for want of ordinary care toward one riding in caboose of freight train with con- 
 sent of conductor; Berry v. Missouri P. R. Co. 124 Mo. 295, 25 S. W. 229, holding 
 it contributory negligence for person to ride on construction train with knowledge 
 of regulation of railroad forbidding it; Young v. Missouri P. R. Co. 93 Mo. App. 
 273, holding contributory negligence shown by passenger with weak ankle, on free 
 pass, stepping from car with child in arms; Guffey v. Hannibal & St. J. R. Co. 53 
 Mo. App. 468, holding that passenger on freight train injured by sudden jerking 
 of train cannot recover; Buck v. People's Street R. Electric Light & P. Co. 46 Mo. 
 App. 564, holding negligence of street railway driver in starting car suddenly 
 as six-year-old passenger was alighting, for jury; Ephland v. Missouri P. R. Co. 
 71 Mo. App. 615 (dissenting opinion), majority holding refusal to charge as to 
 position of brakeman on car no error; Lane v. Choctaw, 0. & G. R. Co. 19 Okla. 
 335, 91 Pac. 883, holding it is not negligence per se for passenger to occupy seat 
 in baggage car; Green v. Missouri, K. & T. R. Co. 121 Mo. App. 726, 97 S. W, 040: 
 St. Louis & S. F. R. Co. v. Gosnell, 23 Okla. 591, 22 L.R.A.(N.S.) 893, 101 Pac. 
 1126, holding where a railroad company carries passengers for hire on its freight 
 trains, it must exercise the same degree of care as is required in the operation 
 of its regular passenger trains, the difference only being that the passenger sub- 
 mits himself to the inconvenience and danger attending that mode of conveyance; 
 Gray v. Columbia C. R. Co. 49 Or. 21, 88 Pac. 297, holding contractor's servant 
 riding on flat car to and from work, such being customary and he having no 
 knowledge of rule of company which prohibited him so riding, not guilty of con- 
 tributory negligence; Harvey v. Deep River Logging Co. 49 Or. 585, 12 L.R.A. 
 (N.S.) 135, 90 Pac. 501, holding one riding with implied consent of a logging 
 company on its logging train consisting of an engine and a logging truck, is not 
 guilty of contributory negligence per se in riding on the truck, so as to prevent 
 recovery for his injury from collision; St. Louis & S. F. R. Co. v. Cox, 26 Okla. 
 334, 109 Pac. 511, holding railroad liable for injury to passenger on freight train 
 from violent jerking after train had stopped at station. 
 
 Cited in footnote to Florida C. & P. R. Co. v. Sullivan, 61 L. R. A. 410, which 
 denies negligence of white passenger in riding in car set apart for negroes. 
 
 Cited in note (19 L. R. A. 311) on what risk assumed by passenger on freight 
 train. 
 Pleadings. 
 
 Cited in Ricketts v. Hart, 150 Mo. 75, 51 S. W 825, holding failure of plaintiff 
 to allege performance cured by denial of such performance in answer; Burk v. 
 Pence, 206 Mo. 334, 104 S. W. 23 (dissenting opinion), as to issue being first 
 raised by answer and denied by reply giving court jurisdiction thereof. 
 
 3 L. R. A. 161, CLOSE v. STUYVESAXT. 132 111. 607, 24 X. E. 868. 
 Rights and liabilities on land contract. 
 
 Cited in Griffith v. Maxfield, 63 Ark. 551. 552, 39 S. W. 852, holding vendee 
 entitled to rescission of contract when others than vendor claim an interest in 
 land; McGuire Bros. v. Blanchard, 107 Iowa, 494, 78 N. W. 231, holding vendor 
 
443 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 170 
 
 required to furnish title free from defect; Bucklen v. Hasterlik, 51 111. App. 143, 
 holding vendor might recover sum deposited as earnest money when vendee re- 
 fuses to perform contract for untenable reasons; Harding v. Olson, 177 111. 303, 
 52 X. E. 482, holding land contract rescinded and that payments on it should be 
 refunded when title defective because of judgments; Garden City Sand Co. v. Mil- 
 ler, 157 111. 233, 41 N. E. 753, holding vendee in land conrtact governed by law of 
 situs and presumed to have satisfied himself of title; Street v. French, 147 111. 
 356, 35 N. E. 814, holding specific performance of land contract will not be de- 
 creed where there is a reasonable doubt at time of filing bill; Smith v. Hunter, 
 241 III. 521, 132 Am. St. Rep. 231, 89 N. E. 686; Koch v. Streuter, 232 111. 60(>! 
 83 X. E. 1072; Pinkney v. Weaver, 216 HI. 192, 74 N. E. 714, holding vendor 
 required to furnish title free from reasonable doubt; Howe v. Coates, 97 Minn. 
 395, 4 L.R.A.(KS.) 1170, 114 Am. St. Rep. 723, 107 N. W. 397, holding a pur- 
 chaser will not be compelled to take a title when there is a defect in the record 
 title which can be cured only by resorting to parol evidence. 
 
 Cited in footnote to Hodges v. Rowing, 7 L. R. A. 87, which holds that remedy 
 at law does not defeat specific performance of contract for sale of land. 
 
 Cited in notes (4 L. R. A. 204) on when specific performance decreed; (10 
 L. R. A. 127) on application of doctrine of laches. 
 Title acquired under receivers certificate. 
 
 Cited in Gourley v. Countryman, 18 Okla. 232, 90 Pac. 427, holding a receiver's 
 final certificate issued under the homestead laws conveys the equitable title to 
 the person named in the certificate, subject to be defeated by cancelation for 
 fraud in procuring same. 
 
 3 L. R. A. 108, BEST v. JOHNSON, 78 Cal. 217, 12 Am. St. Rep. 41, 20 Pac. 415. 
 
 Liability on bonds. 
 
 Followed in San Luis Obispo County v. Farnum, 108 Cal. 565, 41 Pac. 445, de- 
 nying liability of sureties on auditor's bond for loss of sums received from license 
 tax collector. 
 
 Cited in Farnsworth v. Sutro, 136 Cal. 244, 68 Pac. 705, holding assignee for 
 creditors presumed to have qualified by giving bond. 
 
 Cited in footnotes to Schuster v. Weiss, 19 L. R. A. 183, which holds sureties 
 on appeal bond discharged by change in statute; Abshire v. Salver, 56 L. R. A. 
 936, which holds sureties on guardian's bond, given to obtain relief from future 
 liabilities of surety on prior bond, liable for past defalcations. 
 
 Cited in notes (9 L. R. A. 353) on liability of surety or guarantor; (13 L. R. A. 
 418) on what acts will release surety; (6 L.R.A. 383) on contract of guaranty; 
 (91 Am. St. Rep. 533, 545) on acts for which sureties on official bonds are liable. 
 
 3 L. R. A. 170, QUARLES v. CLAYTON, 87 Tenn. 308, 10 S. W. 505. 
 To whom proceeds of policy payable. 
 
 Cited in McLaughlin v. Park City Bank, 22 Utah, 486, 54 L. R. A. 353, 63 Pac. 
 589, holding attaching creditor not entitled to whole fund derived from policy 
 on property on which attachment lay; Lindley v. Orr, 83 111. App. 74, holding 
 prior judgment creditors not entitled, as ajrain^t other creditors, to proceeds of 
 policy on debtor's property; Wright v. Brooks. 101 Tenn. 603. 4!> S. \Y. 828, hold- 
 ing proceeds of insurance policy on exempt property exempt from debts of 
 insured; Bennett v. Featherstone, 110 Tenn. 32, 71 S. W. 589, holding where 
 policy issued to life tenant purported to insure remainderman's interest the 
 latter is not entitled to any of the proceeds thereof; American Steam Laundry 
 Co. v. Hamburg Bremen F. Ins. Co. 121 Tenn. 17, 21 T R.A.(N.S.) 446, 113 S. W. 
 394, holding a fire insurance policy is a personal contract for the indemnity of 
 
 I 
 
3 L.R.A. 170] L. R. A. CASES AS AUTHORITIES. 444 
 
 insured, and does not follow the property on its sale in an absence of an agree- 
 ment for transfer of the policy; Seitz v. Bellinger, 37 Pa. Co. Ct. 263, holding 
 life tenant not entitled to any of proceeds of insurance procured by owner of 
 fee. 
 
 Cited in footnote to Stone v. Mutual F. Ins. Co. 14 L. R. A. 684, which holds 
 insurer not liable to garnishment after electing to rebuild. 
 
 Cited in notes (26 L.R.A. 857) on insurer's option to rebuild; (20 Am. St. Rep. 
 825) on construction of insurance policy; (13 Eng. Rul. Cas. 380) on right of 
 purchaser to recover for loss. 
 
 3 L. R. A. 174, PEOPLE ex rel. THIRD AVE. R. CO. v. NEWTON, 112 N. Y. 396 r 
 19 N. E. 831. 
 
 Order of general term (56 Hun, 539, 9 N. Y. Supp. 833) refusing mandamus 
 to commissioner of public works to compel issuance of permit to open streets in 
 order to introduce cable system, under authority of Laws 1889, chap. 531, re- 
 versed in 121 N. Y. 536, 9 L. R. A. 124, 24 N. E. 951. 
 Construction of Resolutions of December 18, 1852. 
 
 Cited in New York v. Third Ave. R. Co. 117 N. Y. 408, 22 N. E. 755, holding 
 modern car included within license tax on "coaches." 
 General railroad act of 185O. 
 
 Distinguished in Re Washington Street Asylum & P. R. Co. 115 N. Y. 445, 22 
 N. E. 356, holding act allows incorporation of street railroads thereunder except 
 in New York city. 
 Remedy of mandamus. 
 
 Cited in People ex rel. Larkin v. Palmer, 27 Misc. 572, 59 N. Y. Supp. 62, hold- 
 ing writ will not issue to compel recount of election ballots where petition not 
 show grievance by proper affidavit; Nassau Electric R. Co. v. \Vhite, 12 Misc. 633, 
 34 N. Y. Supp. 960, holding injunction will not issue to restrain commissioner of 
 city works from interfering with opening of street for purpose of laying tracks, 
 where such not begun; Lauritsen v. Seward, 99 Minn. 325, 109 N. W. 404. hold- 
 ing an election contest, which involves charges of fraud, illegal voting, and the 
 legality of the election, cannot be determined in mandamus proceedings; People 
 ex rel. Geneva v. Geneva, W. S. F. & C. L, Traction Co. 112 App. Div. 588, 98 
 N. Y. Supp. 719, holding mandamus proper remedy for municipality to compel 
 street railway to change its tracks when necessary for street improvements. 
 Inquiry sun sponte into rights of parties. 
 
 Cited in People ex rel. O'Brien v. Keating, 55 App. Div. 562, 67 N. Y. Supp. 
 413 (dissenting opinion), as to right to determine as to legality and propriety of 
 act sought to be done, on application for mandamus. 
 Grant of privileges. 
 
 Cited in Hudson River Teleph. Co. v. Watervliet Turnp. & R. Co. 56 Hun. 71, & 
 N. Y. Supp. 177, holding exclusive privilege to place electric wires in street not 
 inferred in absence of specific grant; Rhinehart v. Redfield, 93 App. Div. 416, 
 87 N. Y. Supp. 789, upholding common council's grant of right to lay pipes in 
 street to supply gas for refrigerating purposes; Indianapolis Cable Street R. Co. 
 v. Citizens Street R. Co. 127 Ind. 393, 8 L. R. A. 549, 24 N. E. 1054, holding 
 change from horse power to cable not permissible under ordinance authorizing use 
 of former only; St. Michael's P. E. Church v. Forty-Second Street, M. & St. N. 
 Ave. R. Co. 26 Misc. 605, 57 N. Y. Supp. 881, holding change from horse power 
 to electricity not allowable without conformity to provisions of Laws 1890, chap. 
 565; Citizens' Street R. Co. v. Africa, 100 Tenn. 44, 42 S. W. 485, holding discre- 
 
445 L. R. A. CASES AS AUTHORITIES. [3 L.RJL 181 
 
 tion allowed commercial railway in adapting route to topography of county not 
 available to city railway under charter specifying particular route; Still water & 
 M. Street R. Co. v. Boston & M. R, Co. 72 App. Div. 300, 76 N. Y. Supp. 69, 
 holding street railroad not entitled to compel steam railroad to permit connection 
 for facilitation of interchange of cars, under railroad law providing for such in- 
 terchanges between "railroads;" Louisville Trust Co. v. Cincinnati, 73 Fed. 727. 
 holding right to operate road in perpetuity not implied in absence of express 
 grant; State ex rel. Jacksonville v. Jacksonville Street R. Co. 29 Fla. 612, 10 So. 
 590, holding street railway bound to pave space between tracks, under ordinance 
 requiring it to keep same in as good "repair" and condition as rest of street; 
 Re Rochester & L. O. R. Co. 51 App. Div. 67, 64 N. Y. Supp. 429, holding omis- 
 sion of words "in value" from amendment of railroad law, not intended to compel 
 railroad to secure consent of owners of one half lineal foot frontage of abutting 
 property to change of motive power; New York v. Interborough Rapid Transit 
 Co. 55 Misc. 144, 106 N. Y. Supp. 296; New York v. Interborough Rapid Transit 
 Co. 125 App. Div. 446, 109 N. Y. Supp. 885; Aurora v. Elgin, A. & S. Traction 
 o. 227 111. 498, 118 Am. St. Rep. 284, 81 N. E. 544, holding nothing passes by 
 mere implication against the public; Mallory v. Saratoga Lake Bridge Co. 53 
 Misc. 447, 104 N. Y. Supp. 1025, holding right of bridge company to collect toll 
 limited to vehicles specified in its charter. 
 
 Distinguished in Hudson River Teleph Co. v. Watervliet Turnp. A R. Co. 135 
 N. Y. 405, 17 L. R. A. 679, 31 Am. St. Rep. 838, 32 N. E. 148, holding that adop- 
 tion and use of horse power does not prevent change to electricity, under statute 
 authorizing use of any power other than steam. 
 Use of streets. 
 
 Cited in Cumberland Teleg. & Teleph. Co. v. United Electric R. Co. 93 Tenn. 
 529, 27 L. R. A. 245, 29 S. W. 104 (dissenting opinion), as to whether use of 
 streets by electric railway imposes an additional servitude; Kinsey v. Union 
 Traction Co. 169 Ind. 633, 81 N. E. 922 (dissenting opinion), as to whether run- 
 ning interurban cars on streets is an additional burden. 
 
 Cited in footnote to Theobold v. Louisville, N. 0. & T. R. Co. 4 L. R. A. 735. 
 which holds steam railroad cannot be operated in street without condemnation or 
 consent of abutting owners. 
 
 Cited in notes (5 L. R. A. 371, 8 L. R. A. 453) on right to construct and operate 
 railroad in street; (8 L. R. A. 539) on electric railways in city streets; (9 L. R. 
 A. 101) on use of streets in municipalities; (4 L. R. A. 624) on rights of abutters 
 on street; (4 L. R, A. 785) on right of eminent domain; (13 L. R. A. 75) on lia- 
 bility of street car company for injury to pedestrians; (25 Am. St. Rep. 479 
 on right of street railway to adopt new improvements. 
 
 3 L. R. A. 181, STATE v. COOLER, 30 S. C. 105, 8 S. E. 692. 
 Ex post facto laws. 
 
 Cited in State v. Richardson, 47 S. C. 174, 35 L. R. A. 240, 25 S. E. 220, holding 
 trial for larceny under provisions of Constitution adopted subsequent to offense 
 permissible; State v. Loftis, 49 S. C. 445, 27 S. E. 451, holding trial under either 
 act in force at time of offense or act subsequently passed allowable where offense 
 and punishment same; Sage v. State, 127 Ind. 19, 26 N. E. 667, holding statute 
 making accessories principals, but not altering either crime or punishment, not 
 ex post facto; State v. Haddon, 49 S. C. 316, 27 S. E. 194, holding punishment 
 for rape not altered by amendment providing punishment for carnal knowledge of 
 woman child under fourteen; People v. Green, 201 N. Y. 182, 94 N. E. 658, Ann. 
 Cas. 1912 A. 884. holding that legislature can confer on existing court jurisdiction 
 to try homicide committed before act took effect. 
 
 I 
 
3 L.R.A. 181] L. R. A. CASES AS AUTHORITIES. 446 
 
 Cited in footnotes to Ex parte Larkins, 11 L. R. A. 418, which holds act keep- 
 ing existing laws in force not ex post facto; People v. Hayes, 23 L. R. A. 830, 
 which holds change in statute authorizing lighter punishment not ex post facto 
 law; State v. Kyle, 56 L. R. A. 115, which sustains statute authorizing prose- 
 cution by information for crimes already committed; People ex rel. Chandler v. 
 McDonald, 29 L. R. A. 834, which holds statute not ex post facto for abrogating 
 provision for change of magistrate or of venue for prejudice; Re Tyson, 6 L. R. 
 A. 472, which holds law substituting penitentiary for jail not ex post facto; 
 French v. Deane, 24 L. R. A. 387, which holds void act giving right to punitive 
 damages as to existing cause of action. 
 
 Cited in note (37 Am. St. Rep. 595) on ex post facto laws. 
 Jurisdiction of justice of peace. 
 
 Cited in State v. Johnson, 45 S. C. 488, 23 S. E. 619, holding court of sessions 
 has no jurisdiction of charge of theft of property valued at $5; State v. Pickett, 
 47 S. C. 105, 25 S. E. 46, holding offense of transporting liquors within exclusive 
 jurisdiction of justice of peace. 
 
 Distinguished in State v. Wolfe, 61 S. C. 28, 39 S. E. 179, holding exclusive 
 jurisdiction of justice of peace not inferable under Const. 1895, where not ex- 
 pressly conferred by statute. 
 Disqualification of juror. 
 
 Cited in note (18 L. R. A. 474) on disqualification of juror as ground for new 
 trial. 
 
 3 L. R. A. 184, JOY v. BITZER, 77 Iowa, 73, 41 N. W. 575. 
 Damages for breach of warranty. 
 
 Cited in Love v. Ross, 89 Iowa, 403, 56 N. W. 528, holding value of services of 
 stallion not recoverable in action for breach of warranty of potency; Short v. 
 Matteson, 81 Iowa, 640, 47 N. W. 874, holding extra expense incurred in keeping 
 stallion for breeding purposes recoverable in action for breach of warranty of 
 potency; Brush v. Smith, 111 Iowa, 219, 82 N. W. 467, holding measure of dam- 
 ages on sale of diseased hogs, same under count on breach of warranty and under 
 count on fraudulent representations; Goring v. Fitzgerald, 105 Iowa, 512, 75 N. 
 W. 358, holding damages recoverable against vendor of judgment for lack of title 
 thereto, without return of mortgage security subsequently given by vendor: Mai- 
 lory Commission Co. v. Elwood, 120 Iowa, 635, 95 N. W. 176, discussing without 
 deciding, whether special damages are recoverable in action for breach of war- 
 ranty; Larson v. Calder, 16 N. D. 255, 113 N. W. 103; Cummins v. Ennis. 4 Penn. 
 (Del.) 428, 56 Atl. 377, holding in action for breach of warranty on sale of 
 diseased cow where the disease was communicated to other cattle the measure of 
 damages was the difference between the actual value of the diseased cow and what 
 its value would have been at time of sale had it been sound, together with loss 
 suffered by reason of infection of other cattle; Mitchell v. Pinckney, 127 Iowa. 
 700, 104 N. W. 286, holding where in an action for breach of warranty on the 
 sale of cattle, an instruction that plaintiff was entitled to fair and reasonable 
 compensation for loss sustained to his other cattle as a direct and natural conse- 
 quence of diseased condition of cattle sold him by defendant, not error. 
 
 Cited in notes (34 L.R.A. (N.S.) 698, 699) on damages recoverable for selling 
 diseased animals; (6 Eng. Rul. Cas. 624) on damages recoverable for breach of 
 warranty. 
 Warranty on sale of chattel. 
 
 Cited in footnotes to Olson v. Port Huron Live-Stock Asso. 33 L. R. A. 557, 
 which holds pregnancy of ewes in October not breach of contract to deliver in 
 
447 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 189 
 
 "healthy condition;" Holmes v. Tyson, 15 L. R. A. 209, which holds statement that 
 horse is kind, sound, and gentle not warranty. 
 
 Cited in notes (6 L. R. A. 375) on express warranty on sale of goods; (15 L. 
 R.A. 795) on effect of representing things sold to be "good;" (32 L.R.A.(N.S.) 
 185) on what amounts to breach of warranty of soundness of horse; (6 Eng. Rul. 
 Cas. 503) on warranty on sale of chattle. 
 Identification of record on appeal. 
 
 Cited in Smith v. Brown, 123 Iowa, 115, 98 N. W. 567, refusing to hear case de 
 novo where there is a discrepancy in title of appealed case. 
 Liability for causing- spread of disease. 
 
 Cited in note (36 Am. St. Rep. 831) on liability for damages for causing spread 
 of disease. 
 
 3 L. R. A. 188, ABRAHAM v. NORTH GERMAN F. INS. CO. 37 Fed. 731. 
 Service on attorney. 
 
 Cited in note (50 Am. St. Rep. 740) on service of process on attorneys for new 
 parties. 
 
 Distinguished in Shainwald v. Davids, 69 Fed. 702, holding service on law 
 firm retained by nonresident party, not permissible in ancillary writ which as 
 to party served is original proceeding. 
 Auxiliary equitable relief. 
 
 Cited in Rosenbaum v. Council Bluffs Ins. Co. 3 L. R. A. 191, 37 Fed. 725, hold- 
 ing diverse citizenship essential to jurisdiction of Federal court in equity not nec- 
 essary where proceeding is merely auxiliary action at law of which jurisdiction 
 exists. 
 Action on policy as bar to reformation. 
 
 Cited in note (12 L.R.A.(N.S.) 909) on action on policy as bar to action to 
 reform it. 
 
 / 
 3 L. R. A. 189, ROSENBAUM BROS. v. COUNCIL BLUFFS INS. CO. 37 Fed. 
 
 724. 
 Jurisdiction In auxiliary proceeding 1 . 
 
 Cited in Leigh v. Kewanee Mfg. Co. 127 Fed. 992, sustaining Federal court's 
 power to enjoin action at law pending in that court. 
 
 Cited in footnote to Abraham v. North German F. Ins. Co. 3 L. R. A. 188, 
 which holds service on attorney for defendant in an action at law on policy binds 
 defendant in auxiliary suit to reform policy. 
 In removal of canse. 
 
 Cited in note (11 L. R. A. 568) on removal of cause by foreign corporation 
 for local prejudice or influence. 
 
 Distinguished in Laird v. Indemnity Mut. Marine Assur. Co. 44 Fed. 712. hold- 
 ing Federal courts have no jurisdiction under act of 1887 in action to recover on 
 chose in action commenced in state court, where plaintiff's assignor and defendant 
 are both aliens and no Federal question involved. 
 Relief from miNtake. 
 
 Cited in notes (5 L. R. A. 712) on reformation of insurance policy (5 L. R. 
 A. 153) on relief obtainable in equity in case of mistake; (11 L. R. A. 857) on 
 mistake in written contract; relief for: (12 L. R. A. 274) on equity jurisdiction 
 to correct mistakes in contracts; (28 L.R.A.(X.S.) 891, 896) on relief from mis- 
 take of law as to effect of instrument; (37 L. ed. U. S. 457) on correction in equi- 
 ty of mistakes in insurance policies. 
 
3 L.R.A. 189] L. R. A. CASES AS AUTHORITIES. 448 
 
 Stipulation limiting time for suit. 
 
 Cited in note (47 L. R. A. 712) as to when stipulation limiting time for suit 
 on insurance policy begins to run. 
 Action on policy as bar to reformation. 
 
 Cited in note (12 L.R.A.(N.S.) 909) on action on policy as bar to action to 
 reform it. 
 
 3 L. R. A. 192, WINDSOR SAV. BANK v. McMAHON, 38 Fed. 283. 
 United States courts. 
 
 Cited in footnote to Wonderly v. Lafayette County, 45 L. R. A. 386, which sus- 
 tains suit in state court to set aside Federal judgment obtained by fraudulent pre- 
 tense of diverse citizenship. 
 
 Cited in note (40 L.R.A. (N.S.) 405) on questions of state law as to which, 
 state court decisions must be followed in actions originating in, or removed to, 
 Federal courts. 
 Matters relating to negotiability of commercial paper. 
 
 Cited in Nicely v. Commercial Bank, 15 Ind. App. 566, 57 Am. St. Rep. 245, 
 44 N. E. 572; Nicely v. Winnebago Nat. Bank, 18 Ind. App. 36, 47 N. E. 476; 
 Culbertson v. Nelson, 93 Iowa, 190, 27 L. R. A. 226, 57 Am. St. Rep. 266, 61 N. 
 W. 854; Flagg v. School Dist. No. 70, 4 N. D. 37, 25 L. R. A. 367, 58 N. W. 499, 
 holding instrument providing for payment of exchange, besides principal and in- 
 terest, not negotiable; Hope v. Barker, 43 Mo. App. 633, holding note providing 
 for payment of 10 per cent interest from date if principal not paid on maturity, 
 negotiable; Brooks v. Struthers, 110 Mich. 576, 35 L. R. A. 543, 68 N. W. 272, 
 holding mortgage securing note referred to therein providing for payment of all 
 taxes on lands and mortgage destroys negotiability. 
 
 Cited in notes (8 L. R. A. 394) oh stipulations and agreements which destroy 
 negotiability; (27 L. R. A. 224) on provisions for exchange as affecting nego- 
 tiability; (12 L.R.A. 683) on holders of negotiable instruments; (125 Am. St. 
 Rep. 212) on agreements and conditions destroying negotiability. 
 
 Disapproved in Hastings v. Thompson, 54 Minn. 187, 21 L. R. A. 179, 40 Am. 
 St. Rep. 315, 55 N. W. 968, holding note for payment of specific sum of money 
 "with current rate of exchange" negotiable. 
 
 3 L. R. A. 194, CHAUVIN v. VALITON, 8 Mont. 451, 20 Pac. 658. 
 Notice as affecting constitutionality. 
 
 Cited in Modern Loan Co. v. Police Ct. 12 Cal. App. 592, 108 Pac. 56, holding 
 one in the possession of personal property under claim of right cannot be de- 
 prived thereof without due process of law, to satisfy which there must be notice 
 of the time and place of hearing and opportunity to be heard. 
 
 Cited in footnotes to Branson v. Gee, 24 L. R. A. 355, which holds act author- 
 izing taking of gravel from private lands, without notice, for highway repairs, 
 valid; Davis v. St. Louis County, 33 L. R. A. 432, which holds void, act author- 
 izing location and marking of section corners without notice to persons to be 
 assessed for cost of same. 
 
 Distinguished in Newman v. People, 23 Colo. 307, 47 Pac. 278, holding person 
 cannot assail constitutionality of law, whose right it does not affect. 
 Due process of law. 
 
 Cited in Hodge v. Muscatine County, 121 Iowa, 491, 96 N. W. 968, sustaining 
 validity of statute for collection of tax by summary proceedings; Spratt v. Helena 
 Power Transmission Co. 37 Mont. 95, 94 Pac. 631, holding act relating to eminent 
 domain proceeding providing for examination of land by commissioners where 
 right of appeal is given not taking property without due process of law; Hubbell 
 
*49 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 199 
 
 v. Higgins, 148 Iowa, 46, 126 N. W. 914, Ann. Gas. 1912 B, 822; State v. Mc- 
 Farland, 60 Wash. 105, 140 Am. St. Rep. 909, 110 Pac. 792, upholding law for 
 inspection of hotels; Cunningham v. Northwestern Improv. Co. 44 Mont. 218, 119 
 Pac. 554, upholding law providing scheme for insurance of miners. 
 
 Cited in footnotes to Carleton v. Rugg, 5 L. R. A. 193, which holds statute 
 authorizing injunction against liquor nuisance does not unlawfully deprive of 
 property or privileges; Gulf, C. & S. P. R. Co. v. Ellis, 17 L. R. A. 286, which 
 holds valid, act authorizing attorneys' fees against railroad corporations in 
 suits on claims; McConnell v. McKillip, 65 L.R.A. 611, which holds void statute 
 authorizing game warden to seize and forfeit to state without hearing all guns, 
 dogs, decoys, fishing tackle, etc., used by unlicensed person hunting or fishing. 
 
 Cited in notes (4 L. R. A. 724, 5 L. R. A. 359, 11 L. R. A. 225, and 13 L. R. A. 
 68) on due process of law; (20 Am. St. Rep. 557) on due process of law. 
 
 Distinguished in Hodge v. Muscatine County, 121 Iowa, 491, 67 L.R.A. 628, 104 
 Am. St. Rep. 304, holding taxes imposed as a deterrent against the transaction 
 of a certain business need not be collected through judicial proceedings but may 
 be enforced by distraint or tax sale; Kaiser Land & Fruit Co. v. Curry, 155 Cal. 
 655, 103 Pac. 341, holding license fee imposed upon corporation for privilege of 
 doing business not taking of its property without due process of law; J. B. Mullen 
 & Co. v. Moseley, 13 Idaho, 467, 12 L.R.A.(N.S.) 399, 121 Am. St. Rep. 277, 90 
 Pac. 986, 33 A. & E. Ann. Cas. 450, holding a "slot machine" incapable of use for 
 any purpose except in violation of penal provisions of the anti-gambling law is 
 not property within meaning of Constitution which provides that no person shall 
 be deprived of his property without due process of law. 
 Measure of damages. 
 
 Cited in Ocala Foundry & Mach. Works v. Lester, 49 Fla. 210, 38 So. 51, holding 
 damages which are not the natural and usual consequences of an illegal deten- 
 tion of personal property, but which arise only because of unusual and special 
 circumstances cannot be recovered under general allegations of damage, the 
 special circumstances must be alleged. 
 
 Cited in footnote to Woods v. Nichols, 48 L. R. A. 773, which holds measure of 
 recovery in trover by one retaining title as security for purchase price, limited 
 to balance due less depreciation by use. 
 
 3 L. R. A. 199, DUNN v. STATE, 82 Ga. 27, 8 S. E. 806. 
 Sale and delivery of personal property. 
 
 Cited in Atlantic Phosphate Co. v. Ely, 82 Ga. 440, 9 S. E. 170, holding order 
 by letter for fertilizer shipped from point outside state sale outside state; 
 Falvey v. Richmond, 87 Ga. 101, 13 S. E. 261, holding goods ordered shipped from 
 point outside state delivered to purchaser when delivered to carrier; Loud v. 
 Pritchett, 104 Ga. 653, 30 S. E. 870, holding standing trees delivered when 
 vendee goes upon land and commences felling them ; Tift v. Wright & W. Co. 
 113 Ga. 681, 39 S. E. 503, holding setting aside a quantity of oats and marking 
 in name of buyer as ordered, and charging, constructive delivery; Swanke v. 
 McCarty, 81 Wis. 112, 51 N. W. 92, delivery to common carrier at place of 
 manufacture delivery to buyer, where contract is silent as to place of delivery; 
 State v. Wingfield, 115 Mo. 437, 37 Am. St. Rep. 406, 22 S. W. 363, and 
 Scharff v. Meyer, 133 Mo. 444, 54 Am. St. Rep. 672, 34 S. W. 858, holding as a 
 general rule delivery to carrier equivalent to delivery to purchaser; State v. 
 American Exp. Co. 118 Iowa, 450, 92 N. W. 66, upholding seizure of liquors 
 shipped by express into state C. 0. D.; State v. Shields, 110 La. 555, 34 So. 673, 
 holding contract for sale of whisky, without identifying kind to be selected from 
 stock in another parish, not sale; Moore v. State, 126 Ga. 417, 55 S. E. 327, hold- 
 L.R.A. Au. Vol. I. 29. 
 
3 L.R.A. 199] L. R. A. CASES AS AUTHORITIES. 450 
 
 ing delivery of intoxicating liquors presumably made where order was received; 
 Cureton v. State, 136 Ga. 94, 70 S. E. 786, holding sale made in state where orders 
 sent from another state are filled and liquors shipped; Keller v. State (Tex. 
 Crim. Rep.) 1 L.R.A.(N.S.) 495, 87 S. W. 669; Merriweather v. State, 48 Tex. 
 Grim. Rep. 82, 86 S. W. 332; State v. Rosenberger, 212 Mo. 654, 20 L.R.A. 
 (X.S.) 285, 126 Am. St. Rep. 580, 111 S. W. 509, holding where intoxicating 
 liquors are ordered to be shipped to the purchaser C. O. D. the sale is completed 
 where the liquor is delivered to the carrier and the dealer is not guilty of selling 
 liquor at place of destination; Anglin v. State, 96 Miss. 222, 50 So. 728, holding 
 that sale was made in state where delivered, though contract to purchase was 
 made personally and price paid in advance in another state. 
 
 Cited in footnotes to Anderson v. Crisp, 18 L. R. A. 419, which holds that 
 contract for sale of certain r.umber of unsegregated brick to be taken from kiln 
 does not pass title; H. M. Tyler Lumber Co. v. Charlton, 55 L. R. A. 301, which 
 holds that title does not pass by acceptance of offer to sell lumber piled at mill 
 to be inspected by common employee; State v. Cairns, 58 L. R. A. 55, which 
 denies guilt of express company's agent delivering to consignee goods sent 
 C. 0. D. with reason to believe they are liquors; Conrad v. Fisher, 8 L.R.A. 147. 
 which holds lien for goods sold, not lost by constructive delivery if actual custody 
 retained by vendor or his agent; Feeley v. Boyd, 65 L.R.A. 943, which holds im- 
 mediate delivery followed by actual and continued change of possession of fruit 
 in bins shown by purchaser sending representative the same evening to take 
 possession, and sending man the next morning to prepare for shipment. 
 
 Cited in notes ( 12 L. R. A. 821 ) on sales as affected by oral conditions sub- 
 sequent; (17 L. R. A. 178) as to when sale is completed; (17 L. R. A. 179) on 
 property vesting in purchaser on delivery to carrier; (17 L. R. A. 180, 181) on 
 property passing when nothing remains to be done; (22 L. R. A. 425) on passing 
 of title to property by delivery thereof to a carrier for transportation to con- 
 signee or vendee; (17 L. R. A. 180) on prohibitory laws; (4 L. R. A. 835) on 
 sale of spirituous liquor by drummer in nonlicense county; (61 L. R. A. 419, 425) 
 on conflict of laws as to sales of intoxicating liquors; (26 L.R.A. (X.S.) 2) on 
 sufficiency of selection or designation of goods sold out of larger lot; (17 Am. 
 St. Rep. 773) on time for consummation of sale of whiskey; (55 Am. St. Rep. 49) 
 on place of contract for sale of personal property. 
 
 Distinguished in Bagby v. State, 82 Ga. 787, 9 S. E. 721, holding sale of 
 liquor ordered by letter takes place in county where ordered to be delivered, 
 when there delivered; Newsome v. State, 1 Ga. App. 793, 58 S. E. 71, holding a 
 liquor dealer, who in one county receives by mail an order for intoxicating liquor 
 from a minor in another county and who fills the order by shipping the liquor 
 by express -to the latter county, where it is delivered to the minor, may be in- 
 dicted and punished in either county for violation of statute; Smith v. State, 127 
 Ga. 44. 56 S. E. 73. holding under law prohibiting soliciting sales of liquor in dry 
 counties the question as to whether accused acted as agent for buyer or merely 
 pretended to cover illegal sale was question for jury. 
 
 3 L. R. A. 201, POWELL v. OREGONIAN R. CO. 13 Sawy. 543, 38 Fed. 187. 
 .J 11 <1 it 111 fiit as conclusive evidence of ciefot of corporation. 
 
 Cited in McVickar v. Jones, 70 Fed. 759. holding plaintiff need not set forth 
 cause of action, the basis of judgment upon which he sues stockholder; Hale 
 v. Harden, 37 C. C. A. 251, 95 Fed. 758, holding judgment against corporation 
 conclusive against stockholder without notice, as to fact of indebtedness. 
 
 Cited in note (97 Am. St. Rep. 464) on effect as against stockholders of judg- 
 ment against corporation. 
 
451 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 203 
 
 Distinguished in Audenricd v. East Coast Mill. Co. 68 X. J. Eq. 461, 59 Atl. 577, 
 holding in an action against the directors of a corporation to enforce an alleged 
 liability as a creditor of the corporation under general corporation act, a judgment 
 obtained against the corporation of which defendant was director as for breach 
 of a syndicate agreement under which both complainant's and defendant's cor- 
 porations were to be consolidated is not conclusive as to debt sued on, where it 
 was obtained in another jurisdiction, and the only plea interposed was to the 
 jurisdiction of the court. 
 Statute of limitations. 
 
 Cited in Hawkins v. Donnerberg, 40 Or. 104, 66 Pac. 691, holding creditors 
 cannot collect unpaid subscriptions to capital stock when corporation's right to 
 do so is barred; Kilton v. Providence Tool Co. 22 R. I. 611, 48 Atl. 1039, holding 
 statute of limitations does not run against creditor until his right of action 
 accrues; Williams v. Commercial Nat. Bank, 49 Or. 503, 11 L.R.A.(X.S.) 862, 90 
 Pac. 1012, holding in a proceeding in the nature of a creditor's bill to read the 
 assets of a liquidated corporation placed beyond the reach of legal process in 
 fraud of creditor, the statute of limitations does not begin to run until the return 
 of execution nulla bona upon plaintiff's judgments against corporation. 
 
 Cited in footnotes to Swearingen v. Sewickley Dairy Co. 53 L. R. A. 471, which 
 holds limitation runs against stockholder's liability from time of insolvency of 
 corporation; Citizen's Xat. Bank v. Lucas, 56 L. R. A. 812, which holds limita- 
 tion runs against action on judgment from time of rendition; West v. Topeka 
 Sav. Bank, 63 L.R.A. 137, which holds that statute of limitations does not begin 
 to run against stockholder's liability for instalment of subscription until a call 
 is made; Bennett v. Thome, 68 L.R.A. 113, which holds that liability imposed on 
 stockholders of insolvent bank accrues at time of insolvency. 
 
 Cited in notes (1 L.R.A.(X.S.) 913) on running of limitations against unpaid 
 balance of stock subscription; (96 Am. St. Rep. 975) on statute of limitations in 
 actions against corporate officers and stockholders. 
 Statutory liability of stockholders for tort debts. 
 
 Cited in note (22 L.R.A.(X.S.) 258) as to whether statutory liability for debts 
 of corporation includes liability for torts. 
 
 3 L. R. A. 203, CARSOX y. DUXHAM, 149 Mass. 52, 14 Am. St. Rep. 397, 20 
 
 N. E. 312. 
 Conflict of jurisdiction. 
 
 Cited in Rodgers v. Pitt, 96 Fed. 670, and Craig v. Hoge, 95 Va. 280, 28 S. E. 
 317, holding that first of two courts having concurrent jurisdiction, to acquire 
 jurisdiction of case, should retain it; Bigelow v. Old Dominion Copper Min. & 
 Smelting Co. 74 N. J. Eq. 476, 71 Atl. 153, holding the same; Royal League 
 v. Kavanagh, 233 111. 183, 84 N. E. 178, Affirming 134 111. App. 87, holding a court 
 of equity of Illinois will not enjoin a defendant from prosecuting a suit against 
 a complainant in a foreign state upon the mere ground that there may be reason 
 to anticipate a difference of opinion between the coiirts of the two states and 
 that the courts of the foreign state may give defendant a better remedy than 
 courts of Illinois; Gordon v. Munn, 81 Kan. 541, 25 L.R.A.(N.S.) 919, 106 Pac. 
 286, holding where the necessary parties are before a court of equity, it is im- 
 material that the res of the controversy is beyond the territorial jurisdiction 
 of the court, and it has power to compel the defendant to do all things necessary, 
 according to the lex loci rei sitae, which he could do voluntarily to give full effect 
 to the decree against him. 
 
 Cited in footnote to Gay v. Brierfield Coal & I. Co. 16 L. R. A. 564, which 
 
3 L.R.A. 203] L. R. A. CASES AS AUTHORITIES. 452 
 
 holds state court may take jurisdiction of creditors' bill to attack mortgage on 
 which foreclosure begun in Federal court. 
 
 Cited in notes (5 L. R. A. 223) on retention of jurisdiction by court first 
 acquiring; (21 L.R.A. 72, 75) on injunction against suit in foreign jurisdiction; 
 (69 L.R.A. 690) on jurisdiction, of equity over suits affecting realty in another 
 state or county; (7 L.R.A. (N.S.) 116) on jurisdiction to enjoin acts with respect 
 to realty in another state. 
 
 3 L. R. A. 206, CATLIN v. TRINITY COLLEGE, 113 N. Y. 133, 20 N. E. 864. 
 What property subject to collateral-inheritance tax. 
 
 Followed in Catlin v. Domestic & Foreign Missionary Soc. 113 N. Y. 625, 20 
 N. E. 867, deciding same question. 
 
 Cited in Re Van Kleeck, 121 N. Y. 703, 25 X. E. DO (Reversing 55 Hun. 473, 
 8 N. Y. Supp. 806), holding legacy in trust to bttild new church liable to tax; 
 Re Prime, 136 N. Y. 356, 18 L. R. A. 718, 32 X. E. 1091 (Affirming 64 Hun, 
 53, 18 X. Y. Supp. 603), holding legacy to board of foreign missions subject to 
 tax; People ex rel. Savings Bank v. Coleman, 135 X. Y. 235, 47 X. Y. S. R. 879, 
 31 X. E. 1022 (Affirming 45 X. Y. S. R. 138, 18 X. Y. Supp. 675), holding shares 
 of stock held by foreign savings bank as part of surplus, taxable; Re Lenox. 
 31 X. Y. S. R. 959, 9 X. Y. Supp. 895, holding legacy to Bible society subject 
 to succession tax; Re Herr, 22 X. Y. S. R. 906, 5 X. Y. Supp. 48, holding legacies 
 to almshouses, not exempt by charter or by general law, liable to succession tax; 
 Re Vanderbilt, 2 Connoly, 325, 10 X. Y. Supp. 239, holding legacy to a domestic 
 and foreign missionary society taxable; Re Jones, 1 Connoly, 128, 2 X. Y. Supp. 
 671, holding legacy to a mutual benefit association subject to collateral-inheri- 
 tance tax; Re Tuigg, 2 Connoly, 638, 15 X. Y. Supp. 548, holding legacy to 
 foreign charitable society taxable; Re Wolfe, 2 Connoly, 618, 15 X. Y. Supp. 539, 
 holding legacies to church and museum of art taxable; Re Foreign Missions, 
 58 Hun, 118, 11 X. Y. Supp. 310, holding legacy to board of foreign missions 
 not exempt; People ex rel. Carrigan v. Board of Police, 3 Silv. Ct. App. 57, 
 24 X. E. 934, holding legacy to build and renovate church subject to tax; Re 
 Kavanagh, 24 X. Y. S. R. 404, 5 X. Y. Supp. 676, holding legacy to a missionary 
 society not exempt; Re Vinot, 26 X. Y. S. R. 611, 7 X. Y. Supp, 517, holding 
 property of nonresident decedent within state subject to tax; Re Huntington, 
 168 X. Y. 407, 61 X. E. 643, holding legacies to certain charitable associations 
 liable to tax; People ex rel. Delta Kappa Epsilon Soc. v. Lawler, 74 App. Div. 
 558, 77 X. Y. Supp. 840, holding chapter house of college secret society partly 
 used for boarding house for members, taxable; United States v. Perkins, 163 
 U. S. 630, 41 L. ed. 289, 16 Sup. Ct. Rep. 1073, holding United States not a 
 corporation within act exempting bequests from tax; State v. Alston, 94 Tenn. 
 682, 28 L. R, A. 180, 30 S. \V. 750, upholding act imposing privilege tax upon 
 succession; Minot v. Winthrop, 162 Mass. 126, 26 L. R. A. 265, 38 X. E. 512. 
 holding legacy to religious society of another state subject to tax laws of state; 
 Alfred University v. Hancock, 69 X. J. Eq. 472, 46 Atl. 178, holding exemption 
 did not apply to charitable institution located without state; Re Van Kleeck, 
 3 Silv. Ct. App. 57, 25 X. E. 50, holding legacy to build new church not exempt. 
 
 Cited in footnotes to Harvard College v. Cambridge, 48 L. R. A. 547, which 
 holds exempt from taxation houses occupied by college presidents and professors 
 and dormitories and dining halls for students; Re Swift, 18 L. R. A. 709, as to 
 what is subject to succession tax; Brown University v. Granger, 36 L. R. A. 847, 
 which holds real estate constituting part of endowment of Brown University 
 within exemption of "College Estate;" State, Singer Mfg. Co., Prosecutor, v. 
 
453 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 210 
 
 Heppenheimer, 32 L. R. A. 643, which holds company exempt from taxation under 
 exemption of its shares. 
 
 Cited in notes (12 L. R. A. 405) on legislative authority to impose succession 
 tax: (4 L.R.A. 171) on succession tax as tax on property; (41 Am. St. Rep. 582) 
 on constitutionality of collateral inheritance tax law. 
 What property exempt. 
 
 Cited in People ex rel. Salvation Army v. Feitner, 33 Misc. 714, 68 N. Y. 
 Supp. 338, holding real property of Salvation Army exempt from taxation though 
 part used for salesroom; Re Vassar, 127 N. Y. 12, 27 N. E. 394, holding be- 
 quests to certain charitable and educational institutions exempt; Re Herr, 55 
 Hun, 168, 7 N. Y. Supp. 852, holding legacy to a house of industry to found 
 orphan farm school exempt; Re Vanderbilt, 2 Connoly, 324, 10 N. Y. Supp. 239, 
 holding legacy to hospital exempt by charter from taxation not liable to tax; 
 Re Curtiss, 1 Connoly, 474, 7 N. Y. Supp. 207, holding legacy to a hospital 
 exempt from collateral-inheritance tax. 
 
 Cited in footnote to German Gymnastic Asso. v. Louisville, 65 L.R.A. 120, which 
 holds institution for teaching physical culture exempt from taxation. 
 
 Cited in notes (12 L.R.A. 852) on exemption of church property from special 
 assessment under exemption from taxes; (17 L.R.A.(N.S.) 734) on right of chari- 
 table, etc. institution to exemption from taxation as affected by geographical field 
 of operation; (23 L.R.A. (N.S.) 1210) on applicability of general tax exemptions 
 to inheritance or succession taxes; (1 Brit. Rul. Cas. 883) on does a general ex- 
 emption from taxation comprehend death duties. 
 Exclusive jurisdiction. 
 
 Cited in Weston v. Goodrich, 86 Hun, 202, 33 N. Y. Supp. 382, and Re 
 Wolfe, 137 N. Y. 210, 33 N. E. 156 (Reversing 29 Abb. N. C. 346, 21 N. Y. 
 Supp. 515), holding surrogate's determination that legacies not taxable final. 
 
 3 L. R. A. 209, BROWNING'S PETITION, 16 R. I. 441, 16 Atl. 717. 
 When devise vests estate. 
 
 Cited in Manchester's Petition, 22 R. I. 637, 49 Atl. 36, holding devise to one 
 for life and then to his heirs and assigns forever vests estate in fee simple; Green 
 v. Edwards, 31 R. I. 8, 77 Atl. 188, Ann. Cas. 1912 B, 41; Paine v. Sackett, 27 
 R. I. 304, 61 Atl. 753, as to rule in Shelley's Case being in force until enactment 
 of Gen. Laws of 1896. 
 
 Cited in footnotes to Glover v. Condell, 35 L. R. A. 360, which holds ownership 
 of fund subject to limitation, over, given by bequest to son and over in case of 
 his death without living heirs; Grainger v. Grainger, 36 L. R. A. 186, which 
 holds rule in Shelley's Case not applicable to devise to one for life and after hia 
 death to heirs of his body, if any survive him, with devise over otherwise; 
 Starnes v. Hill, 22 L. R. A. 598, which holds indefeasible fee not vested in one 
 to whom life estate given with estate in fee to his "heirs;" Wool v. Fleetwood, 
 67 L.R.A. 445. which holds fee simple vested in children under provision in will 
 that five years after life tenant's death they shall procure the property to be 
 divided between them; Doyle v. Andis, 69 L.R.A. 953, which holds fee simple 
 \f r-tcd in first taker by conveyance to one "during his natural life and then to 
 his heirs." 
 
 Cited in notes (11 L.R.A. 672) on creation of estate by inheritance; (10 Eng. 
 Rul. Cas. 758; 29 L.R.A.(N.S.) 1134, 1168) on rule in Shelley's Case. 
 
 3 L. R. A. 210, KING v. STATE, 87 Tenn. 304, 10 S. W. 509. 
 Defendant's rights in criminal trial. 
 
 Cited in footnotes to State v. Smith, 8 L. R. A. 774, which denies right to 
 
3 L.R.A. 210] L. R. A. CASES AS AUTHORITIES. 454 
 
 determine sickness of absent juror and discharge jury in defendant's absence; 
 State v. Cotts, 55 L. R. A. 176, which denies new trial for mere separation of 
 jurors remaining in care of deputies; Gamble v. State, 60 L. R. A. 547, which 
 holds mere separation of jurors in capital case, not ground for reversal; People 
 v. Adams, 66 L.R.A. 247, which holds one convicted of crime entitled to new trial 
 where after submission of case to jury sheriff locked them in three separate rooms 
 on different floors of hotel for night instead of keeping them together unless 
 harmlessness is affirmatively shown. 
 
 Cited in notes (5 L. R. A. 832, 836) on constitutional rights of person charged 
 with felony; (11 L. R. A. 75) on change of venue in criminal cases; (16 L. R. A. 
 358) on statute allowing plea of guilty in capital case. 
 General and special legislation. 
 
 Cited in Sasser v. Martin, 101 Ga. 457, 29 S. E. 278, holding statute not re- 
 ducible to general uniform rule, a special law. 
 
 Cited in footnotes to Hamilton County v. Rasche Bros. 19 L. R. A. 584, which 
 holds statute as to taxes not applying to all parts of state unconstitutional; 
 Milwaukee County v. Isenring, 53 L. R. A. 635, which holds act regulating 
 sheriff's fees for particular county, local; State, Alexander, Prosecutor, v. Eliza- 
 beth, 23 L. R. A. 525, which holds invalid special statute discriminating between 
 municipalities already having, and those not having, race course. 
 
 Cited in note (7 L. R. A. 194) on prohibition against special and local legisla- 
 tion. 
 Delegation of power to conrt or judge. 
 
 Cited in Hubbard v. Hubbard, 77 Vt. 79, 67 L.R.A. 971, 107 Am. St. Rep. 749, 
 58 Atl. 969, 2 A. & E. Ann. Cas. 315, holding since a husband has a freehold es- 
 tate in the land of his wife not held by her for her sole and separate use, for 
 their joint lives, a statute authorizing a court of chancery "in its discretion" on 
 the wife's petition to empower her to convey her real estate by separate deed, is 
 unconstitutional; Re Counties Comprising Seventh Judicial Dist. 22 Okla. 443, 98 
 Pac. 557, holding statute providing that upon recommendation of the Supreme 
 Court, the Governor shall appoint an additional judge for district where there 
 are an unusual number of cases waiting trial, unconstitutional. 
 
 Distinguished in Dinsmore v. State, 61 Neb. 427, 85 N. W. 445, upholding law 
 permitting district courts to elect whether grand jury shall be called in any 
 term of court. 
 
 3 L. R. A. 212, WEEKS v. RUSSELL, 87 Tenn. 442, 10 S. W. 771. 
 Abatement of action. 
 
 Cited in Hullett v. Baker, 101 Tenn. 692, 49 S. W. 757, holding defendant's 
 death abates action for breach of promise to marry. 
 
 Cited in footnotes to Perkins v. Stein, 20 L. R. A. 861, which holds action for 
 negligently driving over person survives; Aylsworth v. Curtis, 33 L. R. A. 110, 
 which holds action for value of property stolen survives. 
 
 Cited in notes (23 L.R.A. 707) on effect on contract of death of party thereto; 
 (9 L.R.A. (N.S.) 1023) on survival of cause of action for breach of promise > (2 
 Eng. Rul. Cas. 17) on abatement of action for tort by death of wrongdoer. 
 Actions affecting character. 
 
 Cited in footnote to Hutcherson v. Burden, 54 L. R. A. 811, which holds action 
 by father for seduction of daughter within statute requiring actions for "injuries 
 done to the person" to be brought within two years. 
 
455 L. K. A. CASES AS AUTHORITIES. [3 L.R.A. 214 
 
 3 L. R. A. 214, ROBINSON v. QUEEN, 87 Tenn. 445, 10 Am. St. Rp. 690, 11 
 
 S. W. 38. 
 Conflict of laws. 
 
 Cited in Fitzsimmons v. Johnson, 90 Tenn. 443, 17 S. W. 100, holding rights 
 determinable by law of domicil, and remedies by law of forum; Illinois C. R. 
 Co. v. Ihlenberg, 34 L. R. A. 398, 21 C. C. A. 552, 43 U. S. App. 726, 75 Fed. 
 879, holding provision of constitution of state, where employee is injured, pre- 
 cluding defense of his knowledge of defects in appliances, enforcible by Federal 
 -court in other state; Ruhe v. Buck, 124 Mo. 189, 25 L. R. A. 184, 46 Am. St. 
 Rep. 439, 27 S. W. 412, holding lex fori governs action brought by nonresident 
 creditor against married woman; Benton v. German- American Nat. Bank, 45 
 Neb. 854, 64 N. W. 227, holding liability of married woman on accommodation 
 indorsement depends on law of state where made; Armstrong v. Best, 112 N. C. 
 63, 25 L. R. A. 189, 34 Am. St. Rep. 473, 17 S. E. 14, holding contract valid in 
 state where made, not enforceable in domicil, when contrary to laws thereof; 
 Robison v. Pease, 28 Ind. App. 611, 63 N. E. 479, enforcing against married 
 woman suretyship contract made in sister state and valid there; Smith v. 
 Ingram, 130 N. C. 110, 61 L. R. A. 883 (dissenting opinion), 40 S. E. 984, 
 majority holding married woman not estopped by deed valid in state where made 
 but void in forum for lack of privy examination; Bowles v. Field, 78 Fed. 744, 
 holding married woman's contract, valid where made, enforceable elsewhere 
 .although contrary to law of domicil; Dulin v. McCaw, 39 W. Va. 730, 20 S. E. 681, 
 holding remedies regulated solely and exclusively by law of forum; Beauchamp v. 
 Bertig, 90 Ark. 365, 23 L.R.A.(N.S.) 664, 119 S. W. 75, holding rule of county 
 cannot be invoked where the enforcement of a foreign law will contravene some 
 established and important policy of the state of the forum nor where the ques- 
 tion relates to transfer of title to real property; Fryklund v. Great Northern R. 
 Co. 101 Minn. 39, 111 N. W. 727, holding the lex fori governs in all matters of 
 procedure, including questions of pleading, evidence, and parties to and form of 
 action; International Harvester Co. v. McAdam, 142 Wis. 123, 26 L.R.A.(N.S.) 
 779, 124 N. W. 1042, holding contract valid by law of place made will be enforced 
 in another jurisdiction unless contract is contrary to public policy of law of 
 forum, as declared by its courts or its lawmaking power on ground of good 
 morals. 
 
 Cited in notes (46 Am. St. Rep. 448, 455) on asserting against married woman 
 a liability valid in state where created but not in foreign; (85 Am. St. Rep. 569) 
 on conflict of laws as to rights and obligations of married woman; (26 L.R.A. 
 (N.S.) 764, 773) on conflict of laws as to capacity of married women to contract; 
 (5 Eng. Rul. Gas. 867) on law governing validity of contracts. 
 
 Distinguished in Peterson v. Richman, 93 Tenn, 75, 23 S. W. 53, holding 
 married woman, with full authority to convey as feme sole, may convey without 
 privy acknowledgment; Walling v. Christian & C. Grocery Co. 41 Fla. 489, 47 
 L. R. A. 612, 27 So. 46, holding court decree of one state making married woman 
 * free dealer of no effect as to contracts made in another state after her domicil 
 there. 
 Liability of married woman on her contracts. 
 
 Cited in footnote to Kitchen v. Chapin, 57 L. R. A. 914, which holds married 
 woman liable on her guaranty of note owned by her and payable to her order. 
 Privy examination of married women. 
 
 Cited in Funkhouser v. Fowler, 117 Tenn. 541, 101 S. W. 769, holding where 
 *he holds separate estate under the statute, and without absolute power of dis- 
 position as feme sole she can only convey where her privy examination i- taken. 
 
3 L.R.A. 217] L. R. A. CASES AS AUTHORITIES. 456 
 
 3 L. R. A. 217, HOOKER v. SUGG, 102 N. C. 115, 11 Am. St. Rep. 717, 8 S. E. 919. 
 Construction of life insurance policies. 
 
 Cited in Atkins v. Atkins, 70 Vt. 568, 41 Atl. 503, holding rules for inter- 
 preting wills may be followed in ascertaining legal effect of clause designating 
 beneficiary; McXally v. Metropolitan L. Ins. Co. 16 Pa. Super. Ct. 116, holding 
 life insurance policy, like wills, should be liberally construed in favor of pre- 
 sumptive objects of bounty. 
 
 Cited in note (14 Am. St. Rep. 203) on construction of life insurance policy. 
 Chang-e of beneficiary. 
 
 Cited in Jackson Bank v. Williams, 77 Miss. 403, 78 Am. St. Rep. 530, 26 So. 
 965, holding insured in life policy without power to change beneficiary without 
 latter's consent; Sydnor v. Boyd, 119 N. C. 486, 37 L. R. A. 736, 26 S. E. 92, 
 holding wife's indorsement of policy payable to her ineffectual to transfer her 
 interest to husband; Perry v. Tweedy, 128 Ga. 405, 119 Am. St. Rep. 393, 57 
 S. E. 782, 11 A. & E. Ann. Cas. 46, holding in ordinary life insurance where no 
 power of devestiture or to change the beneficiary is reserved in the policy, the is- 
 suance of the policy confers a vested right upon person named as beneficiary, and 
 insured cannot transfer such interest without consent of beneficiary; Arnold v. 
 Empire Mut. Annuity & L. Ins. Co. 3 Ga. App. 706, 60 S. E. 470. holding vested 
 right of beneficiary is subject to be divested only in accordance with express pro- 
 visions of the contract permitting a change of the beneficiary. 
 Nature of beneficiary's interest. 
 
 Cited in Pippen v. Mutual Ben. L. Ins. Co. 130 N. C. 25, 57 L. R. A. 507, 
 40 S. E. 822, holding policy of insurance is executory contract relating to per- 
 sonalty; Millard v. Brayton, 52 L. R. A. 123, 83 Am. St. Rep. 294, 59 N. E. 436 
 (omitted from official report in 177 Mass. 533) ; Glenn v. Burns, 100 Tenn. 298. 
 45 S. W. 784, holding under policy payable to wife, if she survives insured, 
 otherwise to children, latter take several and transmissible interests, subject to 
 contingency of wife's survival; Laughlin v. Xorcross, 97 Me. 34, 53 Atl. 834. 
 holding that interest in life insurance policy passes under devise of all estate : 
 Scull v. mna L. Ins. Co. 132 N. C. 32, 60 L. R. A. 616, 95 Am. St. Rep. 615. 43 
 S. E. 504, holding after-born children of subsequent marriage entitled to share 
 in policy; Lanier v. Eastern L. Ins. Co. 142 N. C. 18, 54 S. E. 786; Washington 
 L. Ins. Co. v. Berwald, 97 Tex. 116, 76 S. W. 442, 1 A. & E. Ann. Cas. 682 ; Laupli- 
 lin v. Norcross, 97 Me. 34, 53 Atl. 834, holding a policy of life insurance the 
 moment it is issued, creates a vested interest in the beneficiary therein named. 
 
 Cited in note (28 Am. St. Rep. 658) on wife's vested interest in policy on 1ms- 
 band's life. 
 
 3 L. R. A. 219, HOLMES v. TALLADA, 125 Pa. 133, 11 Am. St. Rep. 880,. 17 
 
 Atl. 238. 
 Exemption of fund in converted form. 
 
 Cited in Reiff v. Mack, 160 Pa. 273, 40 Am. St. Rep. 720, 28 Atl. 699, holding 
 proceeds of pension check deposited in bank not liable to attachment execution; 
 Re Lynch, 83 Hun, 464, 31 N. Y. Supp. 1038, holding proceeds of benefit certifi- 
 cate in hands of widow exempt from execution for her debts; Lancaster County 
 v. Hartman, 9 Pa. Co. Ct. 182, 8 Lane. L. Rev. 4, holding directors of poor 
 entitled to reimbursement out of pension money for support of lunatic; Burtch 
 v. Burtch, 14 Pa. Co. Ct. 484, 11 Lane. L. Rev. 238, holding subject to debts, 
 property purchased with pension money in name of wife; Sommers v. Howey, 17 
 Pa. Co. Ct. 172, 1 Lack. Legal News, 368, holding property purchased with 
 pension money sold to mother and which afterwards came to pensioner, liable for 
 debts; Aubrey v. Mclntosh, 10 Pa. Super. Ct. 277, 44 W. X. C. 165, holding land' 
 
457 L. E. A. CASES AS AUTHORITIES. [3 L.R.A. 221 
 
 purchased with pension money not exempt from execution; Cook v. Alice, 119 
 Iowa, 229, 93 N. W. 93, holding proceeds of life insurance policy exempt from 
 beneficiary's debts contracted before insured's death; Yerger's Estate, 32 Pa. Co. 
 Ct. 238, holding that while pension money may be taken for the support of a 
 lunatic pensioner in a state insane hospital, it cannot be so taken, until money 
 has actually been paid for hospital expenses. 
 
 Annotation cited in Manning v. Spry, 121 Iowa, 196, 96 N. W. 873, holding 
 pension money exempt from taxation while in the hands of guardian of insane 
 pensioner. 
 
 Cited in footnotes to Crow v. Brown, 11 L. R. A. 110, which holds exempt, 
 property purchased with pension money; Johnson v. Elkins, 8 L. R. A. 552, which 
 holds land purchased with pension money and conveyed to wife liable for debts; 
 Yates County Nat. Bank v. Carpenter, 7 L. R. A. 557, which denies exemption 
 to proceeds of pension mingled with other funds. 
 
 Cited in notes (19 L.R.A. 35) on how far proceeds of exempt property retain 
 exempt character; (5 L.R.A. (N.S.) 473) as to whether statute exempting money 
 "due or to become due" or "to be paid" etc. protects money after payment; (66 
 Am. St. Rep. 386) on exemption of proceeds of exempt personalty; (46 L. ed. U. S. 
 $35) on exemption of property purchased with pension money, or of pension 
 money after payment to pensioner. 
 
 Distinguished in Quigley v. Swank, 11 Pa. Super. Ct. 607, holding burden 
 upon wife to show title to sewing machine in herself as against husband's 
 creditors. 
 
 3 L. R. A. 220, COM. v. BOWMAN, 10 Ky. L. Rep. 891, 11 S. W. 28. 
 
 3 L. R. A. 221, MERCER v. CORBIN, 117 Ind. 450, 10 Am. St. Rep. 76, 20 N. E. 
 
 132. 
 Bicycles subject to laws affecting vehicles and carriages. 
 
 Cited in Myers v. Hinds, 110 Mich. 302, 33 L. R. A. 358, 64 Am. St. Rep. 345, 
 68 N. W. 156, holding bicycle is vehicle; Davis v. Petrinovich, 112 Ala. 659, 36 
 L. R. A. 617, 21 So. 344, holding bicycle is vehicle, and subject to same regula- 
 tions; Swift v. Topeka, 43 Kan. 673, 8 L. R. A. 774, 23 Pac. 1075, holding 
 bicycle is carriage, and entitled as such to use of roadway of bridge; State ex rel. 
 Bettis v. Missouri P. R. Co. 71 Mo. App. 391, holding bicycle is vehicle or 
 carriage, and not within definition of baggage, which common carrier is required 
 to carry; Fielder v. Tipton, 149 Ala. 612, 8 L.R.A.(N.S.) 1269, 123 Am. St. Rep. 
 69, 42 So. 985, 13 A. & E. Ann. Gas. 1012, holding pedestrian injured by person 
 riding bicycle on sidewalk could recover therefor. 
 
 Cited in footnote to State v. Collins, 3 L. R A. 394, which holds bicycle 
 within statute requiring "carriage or other vehicle" traveling on highway to 
 pass to right. 
 
 Cited in notes (8 L. R. A. 772) on bicycle a vehicle; (47 L. R. A. 296) on 
 bicycle law in general; (16 Am. St. Rep. 314; 48 Am. St. Rep. 377, 378) on bicycle 
 as vehicle. 
 Riding 1 bicycle oil sidewalk. 
 
 Cited in Ordway v. Cornelius, 23 Pa. Co. Ct. 282; Knouff v. Logansport, 26 
 Ind. App. 203, 84 Am. St. Rep. 292, 59 N. E. 347, holding that bicycle is a 
 vehicle, and has no lawful right on sidewalk. 
 
 Cited in footnote to Myers v. Hinds, 33 L. R. A. 356, which holds bicyclist 
 liable for running into pedestrian in narrow path. 
 
 Distinguished in Lee v. Port Huron, 128 Mich. 535, 55 L. R. A. 309, 87 X. \V. 
 *537, holding riding bicycle on sidewalk not unlawful act: Leclmer v. Newark, 
 
3 L.R.A. 221] L. R. A. CASES AS AUTHORITIES. 458- 
 
 19 Misc. 456, 44 N. Y. Supp. 556, holding village not liable for injury from 
 collision with bicycle on sidewalk under license, until after notice that licensee 
 was negligent in exercise of privilege. 
 ITse of roadway by bicycles. 
 
 Cited in Holland v. Bartch, 120 Ind. 50, 16 Am. St. Rep. 307, 22 N. E. 83, 
 holding riding bicycle in highway at speed of 15 miles an hour, and within 
 25 feet of horses attached to carriage, not negligence; Geiger v. Perkiomen & R. 
 Turnp. Road, 28 L. R. A. 460, 4 Pa. Dist. R. 113, denying right of turnpike com- 
 pany to demand toll of persons riding on bicycles (Reversed in Supreme Court). 
 
 Cited in footnote to Peltier v. Bradley, D. & C. Co. 32 L. R. A. 651, which 
 denies absolute right of bicyclists to pass on right-hand side on meeting truck. 
 
 Cited in notes (19 L. R. A. 632, 633) on regulation of bicycle riding; (8 L. R. A. 
 829) on use of streets in cities and towns. 
 Extending- language of statute to include thing's not previously existing. 
 
 Cited in Daniels v. State, 150 Ind. 354, 50 N. E. 74, holding penal statute 
 may be extended by construction to offenses which did not- exist when it was- 
 enacted; Richardson v. Danvers, 176 Mass. 414, 50 L. R. A. 127, 79 Am. St. 
 Rep. 320, 57 N. E. 688, holding bicycle not within statute requiring highways- 
 to be kept reasonably safe for carriages; Abney v. Indiana Union Traction Co. 41 
 Ind. App. 60, 83 N. E. 387, on the liberal construction of remedial statutes. 
 Unlawful use of sidewalks. 
 
 Cited in Hardiman v. Wholley, 172 Mass. 412, 70 Am. St. Rep. 292, 52 N. E, 
 518, holding recovery may be had for injury from kick of horse wrongfully on 
 sidewalk, without showing he is vicious. 
 Negligence amounting to manslaughter. 
 
 Cited in State v. Dorsey, 118 Ind. 168, 10 Am. St. Rep. Ill, 20 N. E. 777 r 
 holding engineer negligently running engine into passenger car, and killing 
 passenger, guilty of involuntary manslaughter. 
 
 Cited in note (90 Am. St. Rep. 573) on negligence amounting to manslaughter. 
 Intent as element of offense. 
 
 Cited in note (14 L. R. A. 226, 227) on intent as element of simple assault or 
 assault and battery. 
 
 Distinguished in Gibeline v. Smith, 106 Mo. App. 550, 80 S. W. 961, holding 
 that an allegation that defendant violently and wilfully assaulted and beat plain- 
 tiff is not supported by proof of a battery resulting from negligence. 
 Reservation of questions for consideration on appeal. 
 
 Cited in Shugart v. Miles, 125 Ind. 449, 25 N. E. 551, holding statute respecting 
 reservation of questions of law for decision on appeal should be liberally con- 
 strued; Stevens v. Stevens, 127 Ind. 564, 26 N. E. 1078, holding that without 
 bill of exceptions questions of error as to admission of evidence cannot be pre- 
 sented on appeal. 
 Xecessity of including evidence in record on appeal. 
 
 Cited in Chestnut v. Southern Indiana R. Co. 157 Ind. 515, 62 X. E. 32; 
 Bain v. Goss, 123 Ind. 511, 24 N. E. 361; Shewalter v. Bergman, 123 Ind. 158, 
 23 X. E. 686; Jones v. Foley, 121 Ind. 182, 22 N. E. 987, holding presentation 
 of purely legal questions arising on instructions, on facts, or on rulings on 
 admission of evidence does not require all of evidence to be incorporated in bill 
 of exceptions. 
 When cause not reversed because of instructions. 
 
 Cited in Huntington County v. Huffman, 134 Ind. 8, 31 N. E. 570, holding 
 judgment will not be reversed on account of instructions, if evidence conflicting, 
 and instructions correct on any supposable state of facts. 
 
459 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 224 
 
 Proximate cause. 
 
 Cited in Reynolds v. Pierson, 29 Ind. App. 276, 64 N. E. 484, holding one who 
 jerked friend causing fall of aged man, with whom latter was talking, liable 
 for injury. 
 
 3 L. R. A. 224, WESTERN U. TELEG. CO. v. YOPST, 118 Ind. 248, 20 N. E. 222. 
 Transaction in violation of public Inw. 
 
 Cited in Jemison v. Birmingham & A. R. Co. 125 Ala. 383, 28 So. 51, holding 
 no recovery by carrier against warehouseman for failure to deliver cotton, where 
 based on carrier's agreement to issue bills of lading in violation of law, before 
 actual receipt of goods. 
 
 Cited in note (12 L.R.A.(N.S.) 578, 582, 583, 622) on validity of contracts in 
 business which it is misdemeanor to transact. 
 Sunday law. 
 
 Cited in footnotes to First M. E. Church v. Donnell, 46 L. R. A. 858, which 
 sustains subscription to church indebtedness made on Sunday; Porter v. Pierce, 
 7 L. R. A. 847, which excludes Sunday in determining time to redeem; Sullivan 
 v. Maine C. R. Co. 8 L. R. A. 427, which holds riding for exercise on Sunday 
 not violation of statute; Handy v. Globe Pub. Co. 4 L. R. A. 466, which holds it 
 unnecessary to plead illegality of contract for publishing Sunday newspapers; 
 State v. Collett, 64 L.R.A. 204, which holds repairing of belt in factory on Sun- 
 day so as to prevent two hundred hands from losing work on the following day; 
 Rodman v. Robinson, 65 L.R.A. 682, which sustains Sunday contract for pur- 
 chase and sale of real estate. 
 
 Cited in notes (14 L. R, A. 195) on Sunday labor; (3 L. R. A. 658) on 
 Sunday as n on judicial day. 
 "What is work: of necessity. 
 
 Cited in Dugan v. State, 125 Ind. 134, 9 L. R. A. 322, footnote, p. 321, 25 
 N. E. 171, holding pilot of excursion steamer not engaged in work of necessity 
 or charity; Burnett v. Western U. Teleg. Co. 39 Mo. App. 612, holding message 
 by husband to wife explaining absence, necessity or charity although it might 
 have been sent on Saturday; Western U. Teleg. Co. v. Henley, 23 Ind. App. 20, 
 54 N. E. 775, holding information to agent that message related to serious illness, 
 sufficient to show necessity though message itself not indication thereof. 
 
 Cited in footnotes to State v. McBee, 60 L. R. A. 638, which holds pumping 
 oil-well on Sunday work of necessity, if permanent, material loss and injury 
 would otherwise result; Arnheiter v. State, 58 L. R. A. 392, which holds sale of 
 meat by butcher to customers on Sunday not work of necessity or charity. 
 Allegations as to necessity of act. 
 
 Cited in Western U. Teleg. Co. v. Henley, 23 Ind. App. 17, 54 N. E. 775, holding 
 complaint showing delivery of message on Sunday for transmission, but failing 
 to state facts showing necessity therefor, bad on demurrer where message itself 
 not indicative thereof. 
 
 Distinguished in Bassett v. Western U. Teleg. Co. 48 Mo. App. 568, holding 
 averment and proof of necessity not requisite where defendant voluntarily under- 
 took transmission of Sunday message, and statute provides that Sunday law no 
 defense in such case. 
 Evidence as to necessity of act. 
 
 Cited in Western U. Teleg. Co. v. Griffin, 1 Ind. App. 50, 27 N. E. 113, holding 
 text of telegram showing call for doctor in case of urgent need admissible to 
 show necessity for transmission. 
 
 I 
 
3 L.R.A. 224] L. E. A. CASES AS AUTHORITIES. 460 
 
 Duty to deliver telegram. 
 
 Cited in Western U. Teleg. Co. v. Moore, 12 Ind. App. 141, 54 Am. St. Rep. 
 515, 39 N. E. 874, holding penalty recoverable for failure to deliver although 
 sendee outside free delivery limit, where no extra charge demanded of sender. 
 
 Cited in footnotes to Western U. Teleg. Co. v. Short, 9 L. R. A. 744, which 
 holds company prima facie liable for failure to deliver telegram; Western U. 
 Teleg. Co. v. Adams, 6 L. R. A. 844, which holds ignorance of relations between 
 parties to message not excuse neglect in delivering. 
 Stipulation of notice of claim. 
 
 Cited in Western U. Teleg. Co. v. Trumbull, 1 Ind. App. 124, 27 N. E. 313, 
 holding stipulation satisfied by institution of action within prescribed time 
 limit; Barrett v. Western U. Teleg. Co. 42 Mo. App. 547, holding stipulation for 
 notice of claim within certain period after "Sunday" message does not apply 
 where message never sent; Hill v. Western U. Teleg. Co. 85 Ga. 429, 21 Am. St. 
 Rep. 166, 11 S. E. 874, holding stipulation waived by refusal of manager of 
 company to pay on ground that operator alone to blame; Hudson v. Northern 
 P. R. Co. 92 Iowa, 236, 54 Am. St. Rep. 550, 60 N". W. 608, holding waiver after 
 expiration of time for giving notice, valid; Western U. Teleg. Co. v. Greer, 115 
 Tenn. 372, 1 L.R.A.(X.S.) 527, 89 S. W. 327, holding a clause in a contract for 
 the transmission of a telegram exempting the company from damages for non- 
 delivery unless claim was made within sixty days was reasonable and valid. 
 
 Cited in note (13 L. R. A. 511) on. effect of stipulation in contract to transmit 
 telegram. 
 Declarations of agent as admissible against principal. 
 
 Cited in Virginia-Carolina Chemical Co. v. Knight, 106 Va. 679, 56 S. E. 72o, 
 holding that the report of the superintendent of defendant plant, where plaintiff 
 was injured made before any action was threatened was not inadmissible as a 
 privileged communication. 
 
 Cited in note (131 Am. St. Rep. 336) on declarations and acts of agents. 
 
 Distinguished in Havens v. Rhode Island Suburban R. Co. 26 R. I. 56, 58 Atl. 
 247, 3 A. & E. Ann. Gas. 617, holding that the declarations of the superintendent 
 of the car barns that a motorman was incompetent, made the day after the acci- 
 dent was inadmissible in an action for injuries to the conductor. 
 Anticipation of defense. 
 
 Cited in Bowlus v. Phenix Ins. Co. 133 Ind. 110, 20 L. R. A. 402, 32 N. E. 319, 
 holding answer failing to avoid matter set up by plaintiff in avoidance of antici- 
 pated defense, bad; Sutton v. Todd, 24 Ind. App. 520, 55 N. E. 980, holding com- 
 plaint which states valid defense without successfully avoiding same, bad on 
 demurrer. 
 Effect of demurrer. 
 
 Cited in Western U. Teleg. Co. v. Trumbull, 1 Ind. App. 123, 27 N. E. 313, 
 holding on demurrer to bad reply judgment against defective answer may be 
 rendered. 
 State regulation of business. 
 
 Cited in notes (24 L. R. A. 165) on power of states to control or impose 
 burdens on interstate telegraph and telephone companies; (31 L. R. A. 802) on 
 police regulation of electric companies. 
 
 3 L. R. A. 230, DREW v. HAGERTY, 81 Me. 231, 10 Am. St. Rep. 255, 17 Atl. 63. 
 Gifts, necessity of delivery. 
 
 Cited in footnote to Gammon Theological Seminary v. Robbins. 12 L. R, A. 506, 
 
461 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 230 
 
 which holds instrument declaring that holder gives note which he retains insuffi- 
 cient as gift. 
 
 Cited in notes (6 L. R. A. 404) on sufficiency of intent alone to complete gift; 
 (6 L.R.A. 406) on deposit of fund in trust for another; (19 L.R.A. 700) on de- 
 livery of bank book to sustain gift of deposit; (17 L.R.A.(X.S.) 181) on delivery 
 necessary to complete gift of savings-bank account when book already in posses- 
 sion of donee. 
 Causa mortis. 
 
 Cited in Allen v. Allen, 75 Minn. 117, 74 Am. St. Rep. 442, 77 N. W. 567, 
 holding oral declaration of gift of furniture unaccompanied by symbolic delivery, 
 ineffective; Bean v. Bean. 71 N. H. 541, 53 Atl. 907, holding written declaration 
 of gift of stocks, bonds, and bank accounts then in possession of donee insufficient 
 without delivery: Norway Sav. Bank v. Merriam, 88 Me. 153, 33 Atl. 840, holding 
 deposit of fund in joint account with anticipatory donee not effective as gift 
 causa mortis, voluntary trust, or testamentary disposition; Hawn v. Stoler, 
 208 Pa. 614, 65 L. R. A. 815, 57 Atl. 1115, holding parol instruction for transfer 
 of money after death without delivery of certificate of deposit, not valid gift; 
 Farnsworth v. Whiting, 106 Me. 433. 76 Atl. 909, holding proof of delivery of kef 
 of safe deposit box insufficient to support gift of contents; Bowanko's Estate, 37 
 Pa. Co. Ct. 603, holding mere declaration by husband half hour before death, of 
 wish that wife have certificate of deposit, insufficient; Hawn v. Stoler, 208 Pa. 
 614, 65 L.R.A. 815, 57 Atl. 1115, holding that an oral disposition of property in 
 contemplation of death, without any act of delivery, can be sustained only as a 
 nuncupative will, subject to the limitations provided for such. 
 
 Cited in notes (6 L.R.A. 367) on what essential to constitute gift cause 
 mortis; (7 L.R.A. 439, 11 L.R.A. 684) on gift causa mortis; (99 Am. St. Rep. 
 899, 900) on gifts causa mortis; (9 Eng. Rul. Cas. 863, 864) on requisites of 
 donatio causa mortis. 
 
 Distinguished in Larrabee v. Hascall, 88 Me. 518. 51 Am. St. Rep. 440, 34 Atl, 
 408, holding delivery of order on bank and deposit book sufficient; Goulding v, 
 Horbury, 85 Me. 233, 35 Am. St. Rep. 357, 27 Atl. 127, holding declaration of 
 gift of stocks, bonds, and bank books in presence of both parties, good causa 
 mortis, though deceased physically able to make manual delivery; Bath Sav. 
 Inst v. Hathorn, 88 Me. 127. 32 L. R. A. 378, 51 Am. St. Rep. 382, 33 Atl. 836, 
 holding gift in trust effected by deposit in name of donor "in trust for donee" 
 with oral expression of desire that donee should have same at donor's death. 
 
 Disapproved in Davis v. Kuck, 93 Minn. 266, 101 X. W. 165, holding that if a 
 gift causa mortis was made and accepted in good faith, new and formal acts of 
 delivery were not necessary where the property was already in the donee's pos- 
 session, and the control and possession was consistent with ownership. 
 Inter vivos. 
 
 Cited in Donnell v. Wylie, 85 Me. 146, 26 Atl. 1092, holding delivery essential 
 to validity of gift of mortgage to mortgagor, or by one taking assignment in his 
 own name; Bickford v. Mattocks, 95 Me. 549, 50 Atl. 894, holding gift incomplete 
 where donor ordered note and mortgage drawn in name of donee, with directions 
 to scrivener to send same, after recording, to donee; but same never sent; 
 Williamson v. Johnson. 62 Vt. 381. 9 L. R. A. 278. 22 Am. St. Rep. 117. 20 Atl. 
 279, holding money sent unconditionally to fiance" for purchase of marriage 
 wardrobe and traveling expenses recoverable on her breach of engagement. 
 
 Cited in footnotes to Peck v. Rees, 13 L. R. A. 714, which holds delivery of 
 deed by donor to own agent insufficient: Porter v. Woodhouse. 13 L. R. A. 64, 
 which holds warranty deeds not delivered by donor giving to third person. 
 
 Cited in note (5 L. R. A. 72) on what necessary to complete gift. 
 
 ; 
 
3 L.R.A. 232] L. R. A. CASES AS AUTHORITIES. 462 
 
 3 L. R. A. 232, UNITED STATES v. SHAW, 39 Fed. 433. 
 Jurisdiction of circuit court Amount. 
 
 Followed in United States v. Kentucky River Mills, 45 Fed. 275, holding court 
 has jurisdiction of claim by United States for rent in amount more than $500 
 and less than $2,000; United States v. Belknap, 73 Fed. 21, and United States 
 v. Reid, 90 Fed. 522, holding court has jurisdiction of action on bond to recover 
 amount less than $2,000 and over $500. 
 
 Cited in Western U. Teleg. Co. v. Charleston, 56 Fed. 420, holding telegraph 
 company in capacity of government agent, entitled to apply to court to restrain 
 enforcement of tax less than $2,000 which is claimed to imperil corporate 
 existence. 
 Suits to -which United States Is a party. 
 
 Cited in United States Fidelity & G. Co. v. United States, 204 U. S. 354, 51 
 L. ed. 518, 27 Sup. Ct. Rep. 381, holding that the circuit court had jurisdiction 
 of an action to which the United States was the real plaintiff, irrespective of 
 amount involved; United States use of Creek Nation v. Rea-Read Mill Elevator 
 Co. 171 Fed. 510, holding that the circuit court had jurisdiction of a suit by the 
 United States for the use of an Indian tribe. 
 Locality. 
 
 Cited in East Tennessee, V. & G. R. Co. v. Atlantic & F. R. Co. 15 L. R. A. 113, 
 49 Fed. 616, holding general provisions of act of 1875, as to locality in which 
 civil suits properly brought, do not affect provisions of U. S. Rev. Stat. 740- 
 742, U. S. Comp. Stat. 1901, pp. 587, 588, determining venue of suits of "local 
 nature." 
 
 3 L. R. A. 234, THE IMPERIAL, 13 Sawy. 639, 38 Fed. 614. 
 Liability of tug for collision of tow ship. 
 
 Cited in Re Walsh, 69 C. C. A. 267, 136 Fed. 559, on the liability of tug for 
 collision with tow fleet under direction of pilot of tow. 
 Obstruction of navigable stream. 
 
 Cited in notes (5 L. R. A. 393) on obstruction of navigable stream; (59 L. R. 
 A. 76) on right to obstruct navigation; (23 Eng. Rul. Cas. 160) on riparian 
 owner's right of access. 
 Obligations of owner of ferry. 
 
 Cited in footnote to Sturgis v. Kountz, 27 L. R. A. 390, which requires ferry- 
 boat owner to provide sufficient bar to driveway. 
 
 3 L. R. A. 238, STATE ex rel. RAILROAD & W. COMMISSION v. CHICAGO, 
 ST. P. M. & 0. R. CO. 40 Minn. 267, 2 Inters. Com. Rep. 519, 12 Am. St. Rep. 
 730, 41 N. W. 1047. 
 
 State regulation of rates. 
 
 Cited in Kansas City S. R. Co. v. Railroad Comrs. 106 Fed. 362, denying power 
 of state to regulate rates between two points in same state, even on through bill 
 of lading, where route passes through another state; Burlington, C. R. & N. R. 
 Co. v. Dey, 82 Iowa, 339, 12 L. R. A. 444, 3 Inters. Com. Rep. 593, 31 Am. St. Rep. 
 477, 48 N. W. 98, questioning, whether regulation of rates between two points 
 in same state would be interference with interstate commerce, though route 
 passed through another state; Interstate Commerce Commission v. Cincinnati, 
 N. 0. & T. P. R. Co. 167 U. S. 496, 42 L. ed. 252, 17 Sup. Ct. Rep. 890, holding 
 power to establish rates not conferred on Interstate Commerce Commission by 
 Congress; Hanley v. Kansas City Southern R. Co. 187 U. S. 620, 47 L. ed. 336, 
 23 Sup. Ct. Rep. 214, denying state's power to regulate rates for shipments over 
 
463 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 240 
 
 rout partly outside of state; Hardwick Farmers' Elevator Co. v. Chicago, R. I. & 
 P. R. Co. 110 Minn. 32, 124 N. W. 819, holding that transportation of merchandise 
 between two points in state through neighboring state is interstate commerce. 
 
 Cited in notes (17 L.R.A. 443) as to whether shipments between points in same 
 state lose their character of domestic commerce by passing out of state during 
 transportation; (27 Am. St. Rep. 559) on state regulation of interstate com- 
 merce; (28 L.R.A.(N.S.) 986; 47 L. ed. U. S. 334) on interstate character of 
 transportation between points in same state over route which passes outside 
 such state. 
 
 Distinguished in Seawell v. Kansas City, Ft. S. & M. R. Co. 119 Mo. 240, 
 5 Inters. Com. Rep. 273, 24 S. W. 1002, holding penalty under state statute for 
 {barging less per mile on long haul than on short haul, recoverable though long 
 haul between two points in state passes in its course outside boundary of state. 
 
 Cited as overruled in State ex rel. Railroad Comrs. v. Western U. Teleg. Co. 
 113 N. C. 223, 22 L. R. A. 571, 18 S. E. 389, holding regulation of telegraphic 
 rates between points within state not regulation of interstate commerce because 
 message traverses another state en route. 
 
 3 L. R. A. 240, KANSAS CITY, ST. J. & C. B. R. CO. v. ST. JOSEPH TERMINAL 
 
 R, CO. 97 Mo. 457, 10 S. W. 826. 
 Compensation for railway in street. 
 
 Cited in St. Louis Transfer R. Co. v. St. Louis Merchants Bridge Terminal R. 
 Co. Ill Mo. 678, 20 S. W. 319, holding railway in street damnum absque injuria 
 as to existing railway where there is room for both; Chicago, B. & Q. R, Co. v. 
 Steel, 47 Neb. 746, 66 N. W. 830, and Southern R. Co. v. Atlanta R. & Power Co. 
 Ill Ga. 689, 51 L. R. A. 129, 36 S. E. 873, holding street railroad may cross 
 tracks of steam railroad in street without prior compensation; Stephenson v. 
 Missouri P. R. Co. 68 Mo. App. 649, and .Henry Gaus & Sons Mfg. Co. v. St. 
 Louis, K. & N. W. R. Co. 113 Mo. 317, 18 L. R. A. 342, 35 Am. St. Rep. 706, 
 20 S. W. 658, both holding commercial steam railway in street, within general 
 grant or dedication; D. M. Osborne & Co. v. Missouri P. R. Co. 147 U. S. 252, 
 37 L. ed. 158, 13 Sup. Ct. Rep. 299, raising, without deciding, question of com- 
 pensation to abutting owner for steam commercial railway in street; Birmingham 
 Traction Co. v. Birmingham R. & Electric Co. 119 Ala. 143, 43 L. R. A. 235, 24 
 So. 502, holding abutting owner not entitled to compensation for electric railway 
 in street, as additional servitude; Kansas City Suburban Belt R. Co. v. Kansas 
 City, St. L. & C. R. Co. 118 Mo. 624, 24 S. W. 478, holding obligatory stopping 
 of trains upon approach to railroad crossing, not element of damage from such 
 crossing; Union Elevator Co. v. Kansas City Suburban Belt R. Co. 135 Mo. 368, 
 36 S. W. 1071, holding interference with standing and shifting cars on track 
 on levee, not element of damage; Gates v. Kansas City Bridge & Terminal R. Co. 
 Ill Mo. 34, 19 S. W. 957, holding abutting owner not entitled to recover for 
 injury by bridge approach, unless damage is peculiar to himself; South East & St. 
 L. R.*Co. v. Evansville & Mt. V. Electric R. Co. 169 Ind. 343, 13 L.R.A.(N.S.) 920, 
 82 N. E. 765, 14 A. & E. Ann. Gas. 214, holding that the owners of a steam 
 railroad are not entitled to compensation for the crossing of its road by an inter- 
 urban electric road laid on a public highway with consent of the county. 
 
 Cited in note (5 L. R. A. 661) on protection of private rights by constitutional 
 law. 
 Exclusive privilege. 
 
 Cited in Kansas City Suburban Belt R. Co. v. Kansas City, St. L. & C. R. Co. 
 118 Mo. 613. 24 S. W. 478, holding that material interference with existing 
 railway will not prevent railway crossing: Grand Ave. R. Co. v. People's R. Co. 
 
 I 
 
3 L.R.A. 240] L. R. A. CASES AS AUTHORITIES. 46* 
 
 132 Mo. 43, 33 S. W. 472, holding that city cannot confer exclusive franchise on 
 street railway; Lockwood v. Wabash R, Co. 122 Mo. 97, 24 L. R. A. 519, 43 Am. 
 St. Rep. 547, 26 S. W. 698, holding that railroad cannot be granted a monopoly 
 of use of street; Louisville & N. R. Co. v. Bowling Green R. Co. 110 Ky. 796, 
 63 S. W. 4, sustaining right of electric street railroad to cross trunk railroad 
 at grade; Seibel-Suessdorf Copper & I. Mfg. Co. v. Manufacturers' R. Co. 230 Mo. 
 86, 130 S. W. 288, holding that construction and operation of single track in cen- 
 ter of street will not constitute monopoly of street. 
 
 3 L. R. A. 247, VANDERLIP v. GRAND RAPIDS, 73 Mich. 522, 16 Am. St. Rep. 
 597, 41 N. W. 677. 
 
 Action to hold city liable to contractors for damage from injunction in Mathew- 
 son v. Grand Rapids, 88 Mich. 562, 26 Am. St. Rep. 299, 50 N. W. 651. 
 What constitutes n taking:. 
 
 Cited in Payne v. Kansas City, St. J. & C. B. R. Co. 112 Mo. 18, 17 L. R. A. 
 631, 20 S. W. 322, holding flooding by public-improvement dam from natural 
 change in channel ten years after erection leaving channel for ordinary high 
 waters, no "taking;" De Lucca v. North Little Rock, 142 Fed. 601, holding that 
 the building of a viaduct on the street was not a taking within the Constitu- 
 tion, where none of the property was taken although damaged incidently: Stock- 
 dale v. Rio Grande Western R. Co. 28 Utah, 211, 77 Pac. 849, holding that any 
 substantial interference with private property which destroys or materially less- 
 ens its value or by which the owner's use is abridged or destroyed is a taking. 
 
 Cited in footnotes to Reining v. New York, L. & W. R. Co. 14 L. R. A. 133, 
 which holds abutting owner entitled to compensation on closing of street by 
 railroad embankment; Memphis & C. R. Co. v. Birmingham, S. & T. River R. Co. 
 18 L. R. A. 166, which holds compensation required from railroad crossing other 
 railroad; St. Louis v. Hill, 21 L* R. A. 226, which holds prohibition against 
 building on certain portion of land a "taking" of property; White v. North- 
 western North Carolina R. Co. 22 L. R. A. 627, which holds use of street for steam 
 railroad taking of same. 
 
 Cited in notes (31 Am. St. Rep. 733) on occupation of city streets by rail- 
 roads; (102 Am. St. Rep. 810) on uses for which power of eminent domain can- 
 not be exercised; (106 Am. St. Rep. 253, 261) on what are additional servitudes 
 in highways; (22 Eng. Rul. Gas. 262) on what constitutes a taking of property 
 for public purpose. 
 
 Distinguished in Fuller v. Grand Rapids, 105 Mich. 533, 63 N. W. 530, holding 
 city not liable for abutter's private area wall covered after notice in widening 
 roadway in street; Searle v. Lead, 10 S. D. 317, 39 L. R. A. 347, 73 N. W. 101, 
 holding abutter's injury by raising grade of street within Constitution forbidding 
 "damaging" without compensation; O'Brien v. Baltimore Belt R. Co. 74 Md. 374, 
 13 L. R. A. 130, 22 Atl. 141, holding no "taking" from abutter without fee in 
 street, by railroad cut in street physically injuring his lot or its use. 
 Damages for "taking:." 
 
 Cited in Detroit v. Detroit United R. Co. 156 Mich. 113, 120 N. W. 600, on the 
 measure of damages for removal of grade crossing. 
 
 Cited in footnote to Clemens v. Connecticut Mut. L. Ins. Co. 67 L.R.A. 362, 
 which denies right to injunction to stay improvement of public street according 
 to adopted grade until payment of damages. 
 
 Cited in notes (9 L.R.A. 298) on diminution in value of land taken for railroad 
 purposes; (30 Am. St. Rep. 836) on municipal liability for change of street grade. 
 
4G5 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 257 
 
 3 L. R. A. 254, TALBOT v. CHAMBERLAIN, 149 Mass. 57, 20 N. E. 305. 
 Incompetent'!* change of domicil. 
 
 Cited in Re Fidelity Trust Co. 27 Misc. 120, 57 N. Y. Supp. 361, holding 
 inquisition in lunacy, without appointment of committee, not preclude change of 
 residence. 
 
 Cited in footnote to Re Wickes, 49 L. R. A. 138, which denies right of woman 
 placing husband in home for incurables, to acquire separate domicil. 
 CoiicIusiveneHH of adjudgment of Insanity. 
 
 Cited in Soules v. Robinson, 158 Ind. 100, 92 Am. St. Rep. 301, 62 N. E. 999, 
 holding a judgment adjudicating a person insane is conclusive until set aside, and 
 renders void a subsequent one rendered in another county. 
 Proceedings to probate foreign will*. 
 
 Cited in Rackemann v. Taylor, 204 Mass. 398, 90 N. E. 552, holding proceed- 
 ings in courts of other states in probating a will of a resident are always an- 
 cilliary actions. 
 
 3 L. R. A. 257, LINCOLN v. BOSTON, 148 Mass. 578, 12 Am. St. Rep. 601, 20 
 
 N. E. 329. 
 Municipal liability. 
 
 Cited in Howard v. Worcester, 153 Mass. 427, 12 L. R. A. 161, 25 Am. St. 
 Rep. 651, 27 N. E. 11, holding city without liability for damage in blasting for 
 schoolhouse, unless statutory; Bowes v. Boston, 155 Mass. 351, 15 L. R. A. 369, 
 29 N. E. 633, holding city not liable for fright of horse from sound by scraping 
 of wheel against stone in road; Fifield v. Phoenix, 4 Ariz. 287, 24 L.R.A. 431, 36 
 Pac. 916, holding city not liable for firing, under its license, of Chinese bombs 
 in street; Davis v. Massachusetts, 167 U. S. 47, 42 L. ed. 72, 17 Sup. Ct. Rep. 
 731 (Affirming Com. v. Davis, 162 Mass. 511, 26 L. R. A. 714, 44 Am. St. Rep. 
 389, 39 N. E. 113), holding ordinance prohibiting unlicensed public addresses on 
 public grounds, within police power; Love v. Recorder's Ct. Judge, 128 Mich. 
 550, 55 L. R. A. 621, 87 N. W. 785, holding ordinance prohibiting unlicensed 
 public addresses in public places within half mile of city hall, reasonable exercise 
 of power to control use; Mount Hope Cemetery v. Boston, 158 Mass. 513, 35 Am. 
 St. Rep. 515, 33 N. E. 695, holding statute requiring city to transfer cemetery 
 held in proprietary right, to another without compensation, void; McKay v. 
 Reading, 184 Mass. 142, 68 N. E. 43, denying municipal liability for injuries from 
 tripping over rut in unenclosed common; Landau v. New York, 90 App. Div. 55, 
 85 N. Y. Supp. 616, denying city's liability for killing of one by explosion of fire- 
 works, after suspension of ordinance against them; Fifield v. Phoenix, 4 Ariz. 287, 
 24 L.R.A. 430, 36 Pac. 916, holding that a city is not liable for injuries caused by 
 a discharge of fireworks, because the city authorities suspended for a day the 
 ordinance forbidding their discharge; Kerr v. Brookline, 208 Mass. 191, 34 L.R.A. 
 (X.S.) 465, 94 N. E. 257, holding town not liable for negligence of servants in 
 discharging fireworks in celebrating Fourth of July on public playground. 
 
 Cited in footnotes to Cohen v. New York, 4 L. R. A. 406, which holds city 
 granting right to store wagon in street, liable for resulting injuries; Shelby v. 
 Clagett, 5 L. R. A. 606, which holds exhaustion of corporate funds not relieved 
 from liability for injury by defective sidewalk : Culver v. Streator, 6 L. R, A. 270, 
 which holds city liable for negligence of employee enforcing ordinance against 
 unmuzzled dogs running at large; Curran v. Boston, 8 L. R. A. 243, which holds 
 city not liable for negligence of workhouse officers; Childrey v. Huntington, 
 11 L. R. A. 313, which holds city not liable for injury to policeman while 
 struggling with person under arrest, by catching foot in hole not dangerous to 
 persons walking; Burns v. Bradford, 11 L. R, A. 726, which holds city not liable 
 L.R.A. Au. Vol. I. 30. 
 
3 L.R.A. 257] L. R. A. CASES AS AUTHORITIES. 466 
 
 for injury due to slight deviation of sidewalk from original level; Howard v. 
 Worcester, 12 L. R. A. 160, which holds city not liable for negligence in blasting 
 for schoolhouse; Teagar v. Flemingsburg, 53 L. R. A. 791, which holds mere 
 building of step in sidewalk not negligence rendering city liable for injury to 
 pedestrians; Harden v. Jackson, 66 L.R.A. 986, which holds plank sidewalk not so 
 unsafe as to render city liable to one falling thereon becsause his cane goes 
 through, although the edges of planks have become so decayed as not to with- 
 stand pressure of cane. 
 
 Cited in notes (4 L. R. A. 721) on liability in case of concurrent negligence; 
 (5 L. R. A. 254, 10 L. R. A. 737) on municipal liability for defective highways; 
 (8 L. R. A. 765) on damages for personal injuries; (9 L. R. A. 209, 210) on 
 municipal liability for acts or omissions of officers or agents; (12 L. R. A. 280) 
 on action for personal injuries caused by negligence; (125 Am. St. Rep. 354) on 
 liability of city on grant of right to use streets and sidewalks for fireworks exhi- 
 bition. 
 Title to public parks. 
 
 Cited in Wulf v. Kansas City, 77 Kan. 373, 94 Pac. 207, on the title to public 
 parks; Codman v. Crocker, 203 Mass. 149, 25 L.R.A. (N.S.) 987, 89 N. E. 177, on 
 che title to Boston commons as being in the municipality. 
 What constitutes a street. 
 
 Cited in Perry v. Com. 188 Mass. 461, 74 1ST. E. 661, on what constitutes a 
 street. 
 Connection with nuisance essential- to liability. 
 
 Cited in note (32 L.R.A.(X.S.) 896) on connection with or participation in 
 nuisance essential to responsibility. 
 
 3 L. R. A. 259, ELLIS v. LEEK, 127 111. 60, 20 N. E. 218. 
 
 3 L. R. A. 261, BILLS v. GOSHEX, 117 Ind. 221, 20 N. E. 115. 
 Municipal ordinances. 
 
 Cited in Champer v. Greencastle, 138 Ind. 345, 24 L. R. A. 771, 46 Am. St. 
 Rep. 390, 35 N. E. 14, holding ordinance forbidding erection of screens, etc., 
 before saloons, not reasonable exercise of power to regulate places where liquors 
 sold; Birmingham v. Birmingham Waterworks Co. 139 Ala. 533, 36 So. 614, 
 denying power of city to limit by contract amount of license tax of water 
 company. 
 
 Cited in footnote to Kosciusko v. Slomberg, 12 L. R. A. 528, which holds ordi- 
 nance restricting importation of second-hand clothing in absence of epidemic, void. 
 
 Cited in notes (13 L. R. A. 74) on scope and effect of municipal ordinances; 
 {33 L. R. A. 33) on how far proceedings for violations of ordinances are to be 
 regarded as prosecutions for crime. 
 Power to enact ordinances must be exercised in manner prescribed. 
 
 Cited in Swindell v. State, 143 Ind. 163, 35 L. R. A. 53, 42 N. E. 528 (second 
 appeal, 146 Ind. 533, 45 X. E. 700), also footnote 35 L. R. A. 50, holding ordi- 
 nance providing for suspension of rules by two-thirds vote cannot be repealed on 
 motion by majority vote; People ex rel. Conlon v. Mount, 186 111. 569, 58 N. E. 
 360, holding license ordinance cannot be amended by resolution; State ex rel. 
 Davis v. Newton County, 165 Ind. 269, 74 N. E. 1091, 6 A. & E. Ann. Gas. 468, 
 holding that where the legislature has prescribed a specific mode in which a sub- 
 ordinate body shall proceed in a particular matter, the legislative direction must 
 be followed; Chicago, I. & L. R. Co. v. Salem, 166 Ind. 76, 76 N. E. 631, holding 
 that ordinance can be amended or repealed only by another ordinance enacted, 
 with like formality as original ordinance. 
 
467 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 265 
 
 Distinguished in Hammond v. New York, C. & St. L. R. Co. 5 Ind. App. 531, 
 31 X. E. 817, holding signing and attesting by clerk of minutes, substantial com- 
 pliance with statute requiring signing and attesting of ordinance included 
 therein. 
 Licensing: of business pursuits. 
 
 Cited in Mt. Clemens v. Sherbert, 122 Mich. 675, 81 N. W. 926, holding 
 ordinance prohibiting peddling without license, but not fixing fee, invalid; 
 Risline v. Clements, 31 Ind. App. 348, 66 N. E. 924, holding note given in pay- 
 ment of liquor license void, where ordinance requires payment in advance. 
 
 Cited in footnotes to State ex rel. Beek v. Wagener, 46 L. R. A. 442, which 
 sustains statute regulating business of commission merchants handling agri- 
 cultural products; Simrall v. Covington, 9 L. R. A. 556, which authorizes license 
 tax against insurance agent for each company represented. 
 
 Cited in note (9 L. R. A. 788) on municipal licenses. 
 Invalidity of ordinances not operating: uniformly. 
 
 Cited in Indianapolis v. Bieler, 138 Ind. 37, 36 N. E. 857, holding ordinance 
 discriminating between residents selling bottled beer and other dealers in malt 
 liquors, invalid; Richmond v. Dudley, 129 Ind. 115, 13 L. R. A. 589, 28 Am. St. 
 Rep. 180, 28 N. E. 312, holding ordinance restricting storage of oils not specifying 
 rules and conditions nor operating uniformly, invalid; Sioux Falls v. Kirby, 
 6 S. D. 68, 25 L. R. A. 623, 60 N. W. 156, holding ordinance requiring permit 
 to build, granting of which depends on arbitrary will of inspector, invalid; 
 State v. Tenant, 110 N. C. 613, 15 L. R. A. 424, 28 Am. St. Rep. 715, 14 S. E. 
 387, holding ordinance making granting of building permit dependent on arbi- 
 trary decision of aldermen, invalid; State v. Gerhardt, 145 Ind. 480, 33 L. R. A. 
 327, 44 N. E. 469 (dissenting opinion), majority holding power to permit 
 carrying on other business where liquors sold, depending on personal fitness of 
 applicant, does not give arbitrary authority; Elkhart v. Murray, 165 Ind. 305, 
 1 L.R.A.(X.S.) 943, 112 Am. St. Rep. 228, 75 N. E. 593, 6 A. & E. Ann. Cas. 748, 
 holding an ordinance which required street cars to have a particular patented 
 automatic fender or one equally as good to be approved by council was void; 
 "Ensley v. State, 172 Ind. 209, 88 N. E. 62, holding invalid an ordinance, which 
 gave the city council power to determine fitness of applicant for liquor license, 
 in each case, without prescribing rules for doing so. 
 
 Cited in note (123 Am. St. Rep. 44) on test of validity of municipal ordinance 
 as denying equal protection of the laws. 
 
 3 L. R. A. 265, BURXSVILLE TURNP. CO. v. STATE, 119 Ind. 382, 20 N. E. 421. 
 Mandamus, when issuable. 
 
 Cited in State ex rel. Kelley v. Bonnell, 119 Ind. 495, 21 N. E. 1101, holding 
 that mandamus will not issue to compel city treasurer to accept license fee; 
 State ex rel. Roberts v. Bever, 143 Ind. 492, 41 N. E. 802, holding mandamus 
 issuable to compel surveyor to inspect contractor's work and issue, if properly 
 performed, certificate of acceptance; Wood v. State, 155 Ind. 4, 55 N. E. 959, 
 folding mandamus proper to enforce payment of order by county treasurer ; State 
 *x rel. Comerford v. Fitzpatrick, 45 La. Ann. 278, 12 So. 353, holding that 
 mandamus does not lie to compel signing by mayor of public contract not con- 
 forming to ordinance; State ex rel. Minturn v. Elliott, 158 Ind. 172, 63 N. E. 
 222, denying writ of mandamus to compel committee to place candidate's name 
 on ballots; Auburn v. State. 170 Ind. 529, 83 N. E. 997, holding mandamus lies 
 to compel a public officer to perform a ministerial duty, only where there is no 
 other adequate legal remedy; State ex rel. Minturn v. Elliott, 158 Ind. 172, 63 X. 
 E. 222, holding mandamus "will not lie to compel a political party's central com- 
 
 I 
 
3 L.R.A. 265] L. R. A. CASES AS AUTHORITIES. 468 
 
 mittee to place the name of a candidate upon a ballot in a district composed of 
 two counties where act applied only to one. 
 
 Cited in footnotes to Jackson v. State, 42 L. R. A. 792, which sustains right to 
 mandamus to compel reinstatement of pupil whose admission arbitrarily or 
 capriciously refused; Port Royal Min. Co. v. Hagood, 3 L. R. A. 841, which re- 
 fuses to compel board of agriculture by mandamus to issue license to mine 
 phosphate rock; Territorial Insane Asylum v. Wolfley, 8 L. R. A. 188, which 
 denies mandamus to compel governor to sign warrant for funds for asylum. 
 
 Cited in notes (11 L. R. A. 763) on mandamus not issuable to control executive 
 discretion; (32 L. R. A. 575) on mandamus to enforce by-law of corporation. 
 
 3 L. R. A. 266, WILSON v. DONALDSON, 117 Ind. 356, 10 Am. St. Rep. 48, 20 
 
 N. E. 250. 
 Service of process on nonresident temporarily within jurisdiction. 
 
 Cited in Graves v. Graham, 19 Misc. 620, 44 N. Y. Supp. 415, holding non- 
 resident submitting to service under special agreement entitled to vacation thereof 
 upon plaintiff repudiating agreement. 
 
 Distinguished in Levi v. Kaufman, 12 Ind. App. 348, 39 N. E. 1045, and Reed 
 v. Browning, 130 Ind. 577, 30 N. E. 704, holding nonresident voluntarily in state 
 on private business legally served with process. 
 Attendance at conrt as protection i'roni process. 
 
 Cited in Fisk v. Westover, 4 S. D. 235, 46 Am. St. Rep. 780, 55 N. W. 961, 
 and Cooper v. Wyman, 122 N. C. 787, 65 Am. St. Rep. 731, 29 S. E. 947, holding 
 civil process cannot be served on nonresident of state attending court as suitor 
 or witness; Ela v. Ela, 68 N. H. 314, 36 Atl. 15; Bolgiano v. Gilbert Lock Co. 
 73 Md. 134, 20 Am. St. Rep. 582, 20 Atl. 788; Malloy v. Brewer, 7 S. D. 591, 
 58 Am. St. Rep. 856, 64 N. W. 1120, holding nonresident attending court as 
 witness cannot be served with civil process; Hicks v. Besuchet, 7 N. D. 434. 6G 
 Am. St. Rep. 665, 75 N. W. 793, holding service of justice's court summons on 
 nonresident of county attending court as witness and litigant, void; Murray v. 
 Wilcox, 122 Iowa, 190, 64 L. R. A. 536, 97 N. W. 1087, holding defendant coming 
 into state for trial in accordance with bail bond, exempt from service in civil 
 case; Bolz v. Crone, 64 Kan. 572, 67 Pac. 1108, holding witnesses attending 
 court outside of jurisdiction exempt from service of process; Guynn v. McDaneld. 
 
 4 Idaho, 608, 95 Am. St. Rep. 158, 43 Pac. 74, sustaining defendant's right to 
 serve summons on nonresident plaintiff; Davis v. Cleveland, C. C. & St. L. R. Co. 
 146 Fed. 407, on the exemption from service of process of nonresident when at- 
 tending court; Long v. Hawken, 114 Md. 237, L.R.A.(N".S.) , 79 Atl. 190; 
 Martin v. Bacon, 76 Ark. 160, 113 Am. St. Rep. 81, 88 S. W. 863, 6 A. & E. Ann. 
 Cas. 336, holding that a party cannot be lawfully served with civil process while 
 attending court in a state, not his residence, either as witness or party, or while 
 going or returning; Minnich v. Packard, 42 Ind. App. 373, 85 N. E. 787, holding 
 a nonresident who came into state for the purpose of attending trial cannot be 
 served with summons. 
 
 Cited in footnotes to Monroe v. Atkinson, 52 L. R. A. 189, which denies privi- 
 lege from arrest to owner of libeled vessel going to court at request of purchaser 
 under contract for sale free from liens; Hoffman v. Circuit Judge, 38 L. R. A. 
 663, which holds attorney exempt from service of process while going to own 
 county from supreme court; Holyoke & S. H. Falls Ice Co. v. Amsden, 21 L. R. A. 
 319, which holds party or witness not exempt from service of process in passing 
 through other state to attend court; Parker v. Marco, 20 L. R. A. 45, which 
 holds exempt from service nonresident sued in Federal court. 
 
469 L. E. A. CASES AS AUTHORITIES. [3 L.R.A. 273 
 
 Cited in notes (25 L. R. A. 721, 722, 723, 727, 729, 730, 731) on privilege of 
 nonresident witness from suit; (19 L. R. A. 561) on effect upon suit of discharge 
 from arrest of one arrested while attending court; (76 Am. St. Rep. 538, 539) 
 on exemption from service of civil process of nonresident parties and witnesses. 
 Harmonious construction of statutes. 
 
 Cited in Minnich v. Packard, 42 Ind. App. 373, 85 N. E. 787, on the rule that 
 statutes should be construed with regard to the body of the law and not inde- 
 pendently. 
 
 3 L. R. A. 269, PEDRICK v. RIPON, 73 Wis. 622, 41 N. W. 705. 
 
 Municipal acts not enjoinable by citizens unless private rlgrht Invaded. 
 
 Cited in Linden Land Co. v. Milwaukee Electric R. & Light Co. 107 Wis. 502, 
 83 N. W. 851, holding citizen cannot enjoin acceptance of franchise by railway 
 company; Muhler v. Hedekin, 119 Ind. 485, 20 N. E. 700, holding equity cannot 
 enjoin investigation by common council of charges against, or removal from office 
 of, municipal officers; State ex rel. Sullivan v. Drake, 130 Wis. 153, 109 X. W. 
 982, 10 A. & E. Ann. Cas. 860, on the necessity of direct effect upon rights to en- 
 title person to writ of certiorari; Tampa Gas Co. v. Tampa, 44 Fla. 815, 33 So. 
 465, holding that where the city cannot enter into a lighting contract unless 
 ratified by the freeholders by an election, an injunction will not issue to restrain 
 the entering to such contract before the election is held; Torgrinson v. Norwich 
 School Dist. No. 31, 14 N. D. 18, 103 N. W. 414, holding that a court will not 
 restrain a tax levy where the party is only injured by having an illegal tax im- 
 posed upon his property; Foster v. Rowe, 132 Wis. 271, 111 N. W. 688, holding 
 that bill in equity will not lie by a tax payer in behalf of himself and others to 
 restrain the levy and collection or to set aside the taxes of a municipality gen- 
 erally. 
 
 Cited in note (61 L. R. A. 76) on establishment and regulation of municipal 
 water supply. 
 
 3 L. R. A. 271, ANDRUS v. HOME INS. CO. 73 Wis. 642, 41 N. W. 956. 
 Compulsory reference "When proper. 
 
 Cited in State ex rel. Broatch v. Moores, 56 Neb. 38, 76 N. W. 530 (dissenting 
 opinion), majority holding compulsory reference proper in quo warranto pro- 
 ceeding; Dreveskracht v. First State Bank, 16 N. D. 558, 113 N. W. 1032, holding 
 that a compulsory reference will not be ordered unless it appears that a long 
 account will have to be examined; Killingsted v. Meigs, 147 Wis. 514, 133 N. W. 
 632, denying compulsory reference in mechanic's lien foreclosure, not involving 
 long account. 
 
 Distinguished in Brillion Lumber Co. v. Barnard, 131 Wis. 292, 111 N. W. 483, 
 holding that a reference will be ordered where it involved the examination of a 
 long account. 
 
 3 L. R. A. 273, GRISSOM v. COMMERCIAL NAT. BANK, 87 Tenn. 350, 10 Am. 
 
 St. Rep. 669, 10 S. W. 774. 
 Bank's authority to receive payment. 
 
 Cited in Bank of Montreal v. Ingerson, 105 Iowa, 361, 75 N. W. 351, holding 
 bank not authorized to receive payment of note payable there, not deposited for 
 collection; State Nat. Bank v. Hyatt, 75 Ark. 174, 112 Am. St. Rep. 50, 86 S. W. 
 1002, 5 A. & E. Ann. Cas. 296, holding that a bank at which a note is made pay- 
 able is not authorized to receive payment thereby. 
 
 Cited in footnote to First Nat. Bank v. Peltz, 30 L. R. A. 832, which holds 
 
 I 
 
3 L.R.A. 273] L. R. A. CASES AS AUTHORITIES. 419 
 
 bank not bound to apply to payment of note deposit account of first indorser 
 for whose accommodation note made. 
 
 Cited in notes (21 L. R. A. 441) on banking customs as to maturity and pay- 
 ment; (4 L.R.A. 111) on banking; application of money due depositor; (77 Am. 
 St. Rep. 614) on authority of banks acting as collecting agents. 
 
 Distinguished in Merchants & P. Bank v. Meyer, 56 Ark. 510, 20 S. W. 406, 
 holding bank not required to pay note payable thereat out of deposit after 
 maturity. 
 
 Disapproved in Bedford Bank v. Acoam, 125 Ind. 587, 9 L. R. A. 561, 21 Am. 
 St. Rep. 258, 25 N. E. 713, holding bank may pay note payable at its place of 
 business out of maker's general deposit; Hubbert v. Home Bank, 20 Ont. L. Rep. 
 654, holding that naming bank as place of payment of note authorizes it to pay 
 it. 
 Application of deposits to debts of depositor. 
 
 Cited in First Nat. Bank v. National Surety Co. 66 L.R.A. 781, 64 C. C. A. 601 r 
 130 Fed. 405, on the application of deposits to debts on overdrafts. 
 Relation between banker and depositor. 
 
 Cited in notes (22 Am. St. Rep. 834; 33 Am. St. Rep. 226; 86 Am. St. Rep. 
 777) on relation between banker and depositor. 
 Surety's liability. 
 
 Cited in First Nat. Bank v. National Surety Co. 130 Fed. 405, holding com- 
 pany, surety for employee who falsified depositor's account, liable for difference 
 between deposits and checks; Davenport v. State Bkg. Co. 126 Ga. 141, 8 L.R.A. 
 (X.S.) 951, 115 Am. St. Rep. 68, 54 S. E. 977, 7 A. & E. Ann. Cas. 1000, on what 
 will release a surety's liability. 
 Custom as to notification of consignee. 
 
 Cited in Pennsylvania R, Co. v. Naive (Tenn.) 64 L. R. A. 446, 79 S. W. 124,. 
 holding carrier liable for failure to notify consignee of arrival of perishable 
 goods, where custom to suspend business on following day. 
 Persons bonud by local cnstom. 
 
 Distinguished in Pennsylvania R. C. Co. v. Naive, 112 Tenn. 254. 64 L.R.A. 443 r 
 79 S. W. 124, holding that one who ships goods to an agant at a place where a 
 general and uniform custom prevails in regard to notice to consignee is bound 
 by such custom though he had no actual knowledge of it. 
 
 3 L. R. A. 282, LOUISVILLE & N. R. CO. v. MARTIN, 87 Tenn. 398, 10 S. W. 772. 
 Who are fellow servants. 
 
 Cited in Hopkins v. Nashville, C. & St. L. R. Co. 96 Tenn. 415, 32 L. R. A. 357, 
 34 S. W. 1029, holding engineer assuming no control over fireman, though having 
 right in conductor's absence, fellow servant; Louisville & N. R. Co. v. Stuber, 54 
 L. R. A. 698, 48 C. C. A. 151, 108 Fed. 936, holding foreman of water supply, 
 required in discharge of duties to ride from station to station, fellow servant of 
 engineer; Ohio River & C. R. Co. v. Edwards, 111 Tenn. 45, 76 S. W. 897, hold- 
 ing that a subforeman of a section crew assisting in bringing up a hand-car was 
 a fellow servant of the members of the crew; Louisville & N. R. Co. v. Dillard, 
 114 Tenn. 244, 69 L.R.A. 747, 108 Am. St. Rep. 894, 86 S. W. 313, 4 A. & E. Ann. 
 Cas. 1028, holding that a conductor on a passenger train and a brakeman on a- 
 freight train were fellow servants. 
 
 Cited in footnotes to Byrnes v. New York, L. E. & W. R. Co. 4 L. R. A. 151, 
 which holds station agent and brakeman fellow servants; Fagundes v. Central P. 
 R. Co. 3 L. R. A. 824, which holds laborer removing snow from track fellovr 
 servant of track walker and conductor. 
 
471 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 289 
 
 Cited in notes (5 L. R. A. 735) on who are fellow servants; (51 L. R, A. 620) 
 on relation of supervising employees to their subordinates; (51 L. R. A. 541, 
 552) on doctrine that all superior servants are vice principals as regards their 
 subordinates; (50 L. R. A. 456) on what servants deemed in same common em- 
 ployment, apart from statutes, where no questions as to vice principalship arise; 
 (11 Am. St. Rep. 569) on who are fellow servants. 
 
 3 L. R. A. 284, FIRST NAT. BANK v. PAYNE, 85 Va. 890, 9 S. E. 153. 
 
 3 L. R. A. 287, LAFFEY v. GRUMMOND, 74 Mich. 186, 16 Am. St. Rep. 624, 
 
 41 N. W. 894. 
 Liability of carrier for bagrsa&e checked. 
 
 Cited in notes (55 L. R. A. 655) on liability of carrier for baggage not accom- 
 panied by passenger; (36 L. R. A. 786) on duty of common carrier when baggage 
 not called for; (3 L.R.A.(N.S.) 185) on termination of carrier's liability for bag- 
 gage; (37 L. ed. U. S. 588) on liability for loss of baggage; (97 Am. St. Rep. 102) 
 as to when carrier's liability is reduced to that of warehouseman. 
 
 Distinguished in Cleveland, C. C. & St. L. R. Co. v. Tyler, 9 Ind. App. 693, 
 35 X. E. 523, holding carrier must show valid excuse for nondelivery of baggage. 
 
 3 L. R. A. 289, HENDERSON BLDG. & L. ASSO. v. JOHNSON, 88 Ky. 191, 10 
 S. W. 787. 
 
 Followed without special discussion in United States Sav. & L. Co. v. Scott, 
 98 Ky. 699, 34 S. W. 235 and Locknane v. United States Sav. & L. Co. 103 Ky. 
 269, 44 S. W. 977. 
 Usury in loans by building? and loan associations. 
 
 Cited in Southern Bldg. & L. Asso. v. Harris, 98 Ky. 47, 32 S. W. 261, holding 
 agreement to pay interest on entire loan though principal being constantly re- 
 duced, usurious; Coltrane v. Baltimore Bldg. & L. Asso. 110 Fed. 298, holding 
 exaction of more than legal interest by loan association, whatever form transac- 
 tion may take, usury; Simpson v. Kentucky Citizens' Bldg. & L. Asso. 101 Ky. 
 517, 41 S. W. 570, holding loan association may require payment of reasonable 
 dues for maintenance, besides legal interest; Stanley v. Verity, 98 Mo. App. 637, 
 73 S. W. 727, holding loan association taking more than legal interest by way 
 of dues and fines, not guilty of usury. 
 
 Cited in note (18 L. R. A. 134) on usury in loans by building associations. 
 
 Distinguished in Stanley v. Verity, 98 Mo. App. 637, 73 S. W. 727, holding that 
 where the usury law itself exempted building and loan associations from its oper- 
 ation, the contract of membership was not a fraud on the usury law. 
 
 Not followed in United States Sav. & L. Co. v. Harris, 113 Fed. 30, holding 
 exaction of premiums from members of loan associations, besides interest, not 
 usury. 
 Constitutionality of acts authorizing? building 1 and loan associations. 
 
 Cited in Simpson v. Kentucky Citizens Bldg. & L. Asso. 101 Ky. 508, 41 
 S. W. 570, holding law permitting loan association to exact premiums in addi- 
 tion to legal interest unconstitutional as special act regulating rate of interest. 
 
 Cited in footnotes to Julien v. Model Bldg. Loan & Invest. Asso. 61 L. R. A. 668, 
 which sustains statute giving mortgages to loan associations priority over all 
 liens filed after date of their record; Julien v. Model Bldg. Loan & Invest. Asso. 
 61 L. R. A. 668, sustaining statute giving building and loan association mort- 
 gages priority over subsequent liens. 
 
 Cited in note (26 L.R.A.(N.S.) 1137) on constitutionality of exemption of 
 building and loan associations from general usury laws 
 
 I 
 
3 L.R.A. 289] L. R. A. CASES AS AUTHORITIES. 472 
 
 Disapproved in People's Bldg. & L. Asso. v. Billing, 104 Mich. 191, 62 N. W. 
 373, holding statute authorizing formation of building ana loan associations not 
 unconstitutional as class legislation; Cramer v. Southern Ohio Loan & T. Co. 72 
 Ohio St. 416, 69 L.R.A. 422, 74 X. E. 200, 2 A. & E. Ann. Cas. 990, holding that 
 a statute permitting building and loan associations to assess members, though 
 amounting to a usurious rate, was constitutional. 
 
 3 L. R. A. 291, KRUGER v. SPIETH, 8 Mont. 482, 20 Pac. 664. 
 
 Followed without discussion in Ferguson v. Speith, 8 Mont. 493, 20 Pac. 807 , 
 obb v. Speith, 8 Mont. 494, 20 Pac. 806; Maxey v. Speith, 8 Mont. 494, 20 Pac. 
 806; Bozeman Nat. Bank v. Speith, 8 Mont. 498, 20 Pac. 806. 
 Attachment against surviving partner. 
 
 Cited in Ryan v. Maxey, 14 Mont. 82, 35 Pac. 515, holding attachment liens 
 not waived or void, by sale of property under execution, pending appeals from 
 orders dissolving attachment, or by reason of subsequent statute. 
 Surviving? partners. 
 
 Cited in Ryan v. Spieth, 18 Mont. 45, 44 Pac. 403, holding creditor's complaint 
 against administratrix for conversion of estate need not allege presentment of 
 claim under probate rule; Burchinell v. Koon, 8 Colo. App. 465, 46 Pac. 932, 
 holding that surviving partner may mortgage firm assets to firm's creditor; 
 People's Nat. Bank v. Wilcox, 136 Mich. 577, 100 N. W. 24, 4 A. & E. Aim. Cas. 
 465, on right of surviving partner to mortgage firm assets. 
 
 3 L. R. A. 295, STATE v. NARRAGANSETT, 16 R. I. 424, 16 Atl. 901. 
 Legislative construction. 
 
 Followed in Wood v. Quimby, 20 R. I. 486, 40 Atl. 161, holding act for incoi- 
 poration of fire district not within R. I. Const, art. 4, 17. 
 
 Cited in State ex rel. Cunmiings v. Crawford, 17 R. I. 292, 21 Atl. 546, holding 
 fire wards in fire district not "civil officers" requiring incumbents to be qualified 
 electors; Smith v. Westerly, 19 R. I. 451, 35 Atl. 526, holding conferring power 
 to take property for waterworks after vote therefor, includes authority to con- 
 struct, irrespective of contrary legislative construction; Re Voting Machine, 19 
 R. I. 730, 36 L. R. A. 547, 36 Atl. 716, holding law authorizing voting machine 
 punching vote on printed ballot, within constitutional provision for voting by 
 ballot or paper vote until otherwise prescribed, irrespective of limitations in 
 framers' minds; Phillips v. Baltimore, 110 Md. 439, 25 L.R.A.(N.S.) 716, 72 Atl. 
 902, holding that a statute relating to right to sue any corporation wherever it 
 had its principal office, did not apply to municipal corporations. 
 Presumption of validity of lu\v. 
 
 Cited in Carr v. Brown, 20 R. I. 223, 38 L. R. A. 297, 78 Am. St. Rep. 855, 38 
 Atl. 9, holding statute authorizing administration of estate of person not heard 
 from for seven years, without due process; State v. Dalton, 22 R. I. 82, 48 L. R. 
 A. 779, 84 Am. St. Rep. 818, 46 Atl. 234, holding prohibition of giving "trading 
 stamps" with sales, not within police power; Crafts v. Ray, 22 R. I. 186, 49 
 L. R. A. 608, 46 Atl. 1043, holding act for exemption from taxation because of 
 location of factory, not unconstitutional as unfair distribution of burden of state : 
 State v. Foster, 22 R. I. 173, 50 L. R. A. 343. 46 Atl. 833, holding act to regulate 
 transient dealers, imposing burdensome restrictions and license fees, valid where 
 unconstitutionality not clear. 
 Statutory limitation of hours of labor. 
 
 Cited in Re Ten Hour Law, 24 R. I. 606, 61 L. R. A. 614, 54 Atl. 602, sustain- 
 ing act limiting hours of labor of employees in street car service. 
 
473 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 299 
 
 Corporate potver*. 
 
 Cited in Brown v. Narragansett District, 21 R. I. 503, 44 Atl. 932, holding that 
 Xarragansett district council has same power to abate nuisances as other towns. 
 
 Cited in footnote to Slocum v. Head, 50 L. R. A. 324, which holds persons at- 
 tempting to incorporate by filing original articles, instead of copies, entitled to 
 all rights of corporation as to persons dealing with them as such. 
 
 3 L. R. A. 299, STANDIFORD v. STANDIFORD, 97 Mo. 231, 10 S. W. 836. 
 Sufficiency of delivery. 
 
 Cited in Knoche v. Perry, 90 Mo. App. 487, holding execution, acknowledg- 
 ment, and recording of bill of sale prima facie evidence of delivery to and ac- 
 ceptance by grantee therein; Tygard v. McComb, 54 Mo. App. 92, holding gift 
 inter vivos not complete where intended to be effective in event of death; Mar- 
 shall v. Hartzfelt, 98 Mo. App. 181, 71 S. W. 1061, holding delivery of deed to 
 older brother for younger, valid; Griffin v. Mclntosh, 176 Mo. 400, 75 S. W. 677, 
 holding deed delivered to grantee to take care of, title not to vest till grantor's 
 death, inoperative. 
 Of deeds generally. 
 
 Cited in White v. Pollock, 117 Mo. 473, 38 Am. St. Rep. 671, 22 S. W. 1077, 
 and Sneathen v. Sneathen, 104 Mo. 209, 24 Am. St. Rep. 326, 16 S. W. 497, both 
 holding delivery of deed to third person without reservation and with intent 
 of grant in prcesenti, sufficient; Rumsey v. Otis, 133 Mo. 96, 34 S. W. 551, hold- 
 ing absolute deed to wife of purchaser by latter's direction with intent to pass 
 title, sufficiently delivered if to agent designated by husband, although later 
 found in husband's possession; Appleman v. Appleman, 140 Mo. 313, 62 Am. St. 
 Rep. 732, 41 S. W. 794, holding deed sealed and acknowledged and left with 
 scrivener until "called for by proper person," sufficiently, although not actually, 
 delivered to daughter assenting and going into possession thereunder; Hamilton 
 v. Armstrong, 120 Mo. 624, 25 S. W. 545, holding authorized delivery to grantee's 
 husband, of deed prepared under grantor's positive direction and knowledge, suf- 
 ficient; Crowder v. Searcy, 103 Mo. 118, 15 S. W. 346, holding corrected deed 
 delivered where power and money for recording original deed applicable to it; 
 Hall v. Hall, 107 Mo. 107, 17 S. W. 811, holding delivery of deed in name of 
 purchaser's infant, to father sufficient as to infant; Williams v. Latham, 113 Mo. 
 175, 20 S. W. 99, holding delivery of deed, reserving possession and rents for 
 life, to trustee for delivery after grantor's death, good; Abbe v. Justus, 60 Mo. 
 App. 306, sustaining finding of delivery of deed first given in escrow with intent 
 to deed; Shanklin v. McCracken, 151 Mo. 595, 52 S. W. 339, holding deed re- 
 maining in grantor's possession not delivered as against other creditors, where 
 made to divert dower and without intention to eifect preference; Lang v. Smith, 
 37 W. Va. 735, 17 S. E. 213, holding deed executed and ready for delivery found 
 with deceased grantor's papers, void where no previous delivery made or sub- 
 sequently authorized; Flynn v. Flynn, 17 Idaho, 161, 104 Pac. 1030, holding that 
 where the actions of the grantor show an intention to make it his deed, there is 
 a good delivery; Coulson v. Coulson, 180 Mo. 715, 79 S. W. 473, holding where 
 grantor took child grantee to notary and executed a deed and delivered it to the 
 notary to have it registered, it was a sufficient delivery: Cook v. Newby, 2]3 Mo. 
 491, 112 S. W. 272, holding a delivery of a deed to another, reserving right of 
 --ion for life, to be delivered after death, not reserving any title, was a good 
 delivery; Re Cornelius, 151 Cal. 552. 91 Pac. 329, holding a delivery of an absolute 
 deed by one who expected to die presently to a third person to be delivered after 
 death is sufficient; Bunn v. Stuart, 183 Mo. 384, 81 S. W. 1091, holding a deliv- 
 ery to the grantees merely to hold and return when demanded, was not sufficient 
 
3 L.R.A. 299] L. R. A. CASES AS AUTHORITIES. 474 
 
 to pass title; Givens v. Ott, 222 Mo. 411, 121 S. W. 23, holding, where grantor 
 died before acknowledgment was executed, there was no delivery; Terry v. Glover, 
 235 Mo. 550, 139 S. W. 337, holding that deed was not delivered, where husband 
 placed it in his safe deposit box, though wife, grantee, had key to box; Zeitlow 
 v. Zeitlow, 84 Kan. 718, 115 Pac. 573, holding delivery sufficient, where notary 
 was directed by grantor, in presence of grantee, to mail deed to certain person 
 and notary placed deed in envelope and forgot it and it was lost. 
 
 Cited in footnotes to Strough v. Wilder, 7 L. R. A. 555, which holds possession 
 prima facie evidence of delivery of deed; Cook v. Patrick, 11 L. R. A. 573, which 
 holds delivery of deed to third person paying for property, sufficient delivery to 
 grantees; Martin v. Flaharty, 19 L. R. A. 242, which holds manual delivery of: 
 deed not essential; Parrot v. Avery, 22 L. R. A. 153, which holds execution of : 
 deed in presence of \vitness not sufficient delivery. I 
 
 Cited in notes (12 L. R A. 171, 172) on delivery of deed essential to transfer 
 title; (13 L. R. A. 677) on essentials to validity of deed; (54 L. R. A. 876) on 
 delivery of deed to third person; or record, or delivery for record, by grantor; 
 (17 Am. St. Rep. 348; 53 Am. St. Rep. 545, 546, 554) on what is a delivery of a 
 deed. 
 
 Beneficial deeds. 
 
 Cited in McNear v. Williamson, 166 Mo. 368, 66 S. W. 160, holding acceptance 
 of deed beneficial to minor, presumed; Fischer Leaf Co. v. Whipple, 51 Mo. App. 
 186, holding presumption of acceptance of beneficial deed not obtaining where 
 third party's right intervened between grantor's act and actual acceptance; 
 Chambers v. Chambers, 227 Mo. 284, 137 Am. St. Rep. 567, 127 S. W. 86, holding 
 that acceptance will be presumed, where grant is beneficial and grantee is infant 
 child of grantor. 
 
 Deed of trust. 
 
 Cited in Kingman v. Cornell-Tibbetts Mach. & Buggy Co. 150 Mo. 311, 51 
 S. W. 727, holding delivery of deed of trust accepted by trustee, sufficient as 
 against creditors attaching before beneficiaries' acceptance. 
 
 Assignment. 
 
 Cited in Erickson v. Kelly, 9 N. D. 16, 81 N. W. 77, holding delivery of assign- 
 ment not shown in absence of intent or placing beyond control. 
 
 3 L. R. A. 302, ORLEANS COUNTY NAT. BANK v. MOORE, 112 N. Y. 543, 
 
 8 Am. St. Rep. 775, 20 N. E. 357. 
 Application of proceeds of involuntary sale. 
 
 Cited in Bergdoll v. Sopp, 227 Pa. 366, 76 Atl. 64, holding that the proceeds of 
 ale of land, made involuntarily, must be apportioned pro tanto, for the relief 
 of the surety; Sengel v. Patrick, 80 Ark. 387, 97 S. W. 448, holding that the 
 proceeds should be applied to prior incumbrances where they were all owned by 
 the same person and no agreement between the parties; Re Georgi, 2 Gibbons. Sur. 
 Rep. 279, holding that proceeds on foreclosure of mortgage secured by two notes, 
 upon one of which decedent is liable, must be applied ratably on both notes. 
 
 Cited in note (96 Am. St. Rep. 81) on application of payments under fore- 
 closure or judicial sales. 
 Application as question of law. 
 
 Cited in American Surety Co. v. Crow. 22 Misc. 576, 49 N. Y. Supp. 946, holding 
 application of proceeds of attachment for court, in absence of debtor's voluntary 
 act before trial; Crisman v. Lanterman, 149 Cal. 658, 117 Am. St. Rep. 167, 87 
 Pac. 89, holding that the application is to be made by the court according to the 
 equities of the case. 
 
475 L. R. A. CASES AS AUTHORITIES. [3 L.I!. A. 308 
 
 Distinguished in Wanamaker v. Powers, 102 App. Div. 491, 93 N. Y. Supp. 19; 
 Bayer v. Lugar, 106 App. Div. 525, 94 X. Y. Supp. 802, holding that the creditor 
 may apply money voluntarily paid upon such of the debt as he sees fit unless 
 the debtor tells upon what it is to apply. 
 Application pro rntu. 
 
 Cited in Re Georgi, 21 Misc. 424, 47 N. Y. Supp. 1061, holding mortgagee to 
 apply proceeds of foreclosure upon notes pro rata; Armstrong v. McLean, 153 
 N. Y. 495, 47 N. E. 912, requiring proceeds from foreclosure of collateral for all 
 debts to be applied pro rata in absence of directions in mortgage; Sanford v. Van 
 Arsdall, 53 Hun, 78, 6 N. Y. Supp. 494, holding mortgagee cannot arbitrarily 
 apply rents received from mortgagor's tenants; Armstrong v. McLean, 92 Hun, 
 398, 36 N. Y. Supp. 764, holding mortgagee foreclosing security for debtor's gen- 
 eral indebtedness to him, must apply proceeds pro rata upon all, including debts 
 specially secured; Cohen v. L'Engle, 29 Fla. 666, 11 So. 44, holding payments by 
 assignee for creditors to be applied pro rata, irrespective of independent col- 
 lateral or seniority; Fulton Grain & Mill. Co. v. Anglim, 34 App. Div. 165, 54 
 N. Y. Supp. 632, holding moneys stipulated to be applied upon purchase not ap- 
 plicable to another contract by vendor and vendee, to surety's prejudice; Taylor 
 v. Simpkins, 38 Misc. 248, 77 N. Y. Supp. 591, holding proceeds of foreclosure to 
 be applied on previous judgment against guarantor of note; Patrick v. National 
 Bank of Commerce, 63 Neb. 209, 88 N. W. 183, holding proceeds of mortgage sale 
 should be applied ratably on all notes secured, though some are outlawed, and 
 deficiency judgment entered for balance due upon those not outlawed; Bostick v. 
 Jacobs, 133 Ala. 347, 91 Am. St. Rep. 36, 32 So. 136, holding surety upon notes 
 discharged to extent of application of proceeds of foreclosure. 
 
 Cited in note (24 L. R. A. 800) on priority of notes falling due at different 
 times secured by the same mortgage. 
 
 Distinguished in Barnes v. Gushing, 71 App. Div. 374, 75 N. Y. Supp. 953, hold- 
 ing receiver's dividend applicable to a first bond expiring before insolvency, and 
 not pro rata between that and successor; First Nat. Bank v. Finck, 100 Wis. 453, 
 76 N. W. 608, holding proceeds of execution under judgment for entire indebt- 
 edness under both individual and joint notes, applicable by creditors exclusively 
 to former. 
 
 Denied in Tolerton & S. Co. v. Roberts, 115 Iowa, 474, 91 Am. St. Rep. 171, 88 
 X. \V. 966, and Smith v. Moore, 112 Iowa, 67, 83 N. W. 813, both holding mortgagee 
 may apply insufficient proceeds of foreclosure on claims without other security. 
 "When payments are voluntary. 
 
 Cited in note (25 Am. St. Rep. 520) as to when payments are voluntary. 
 
 3 L. R. A. 308, DIVEN v. JOHNSON, 117 Ind. 512, 20 N. E. 428. 
 Parol evidence rnle. 
 
 Cited in Conant v. National State Bank, 121 Ind. 324, 22 N. E. 250, holding 
 specific provisions of written contract as to acts to be performed cannot be sup- 
 planted by oral statements; Pickett v. Green, 120 Ind. 588, 22 N. E. 737, hold- 
 ing written contract containing stipulation as to consideration precludes parol 
 evidence of additional or "real" consideration; Singer Mfg. Co. v. Suits, 17 Ind. 
 App. 641, 47 N. E. 341, holding oral proof of agreement to rescind in event of 
 another's disapproval inadmissible to vary written contract of purchase; Rey- 
 nolds v. Louisville, N. A. & C. R. Co. 143 Ind. 616, 40 N. E. 410, holding written 
 agreement to pay rent cannot be added to by oral proof that rentals to be applied 
 upon construction contract; Brunson v. Henry, 140 Ind. 462, 39 N. E. 256, hold- 
 ing mortgage recital of execution for unpaid pur.ln.se money cannot be con- 
 tradicted by parol; Western Paving & Supply Co. v. Citizens' Street R. R. Co. 
 
3 L.R.A. 308] L. R. A. CASES AS AUTHORITIES. 476- 
 
 128 Ind. 537, 10 L. R. A. 777, 25 Am. St. Rep. 462, 26 X. E. 188, holding inad- 
 missible, parol evidence of agreement to be bound by certain ordinance in con- 
 sideration of ordinance enabling purchase of franchise of company not so bound r 
 where enabling ordinance was granted in consideration of assumption of former 
 company's obligations; Tracy v. Union Iron Works Co. 104 Mo. 201, 16 S. W. 203, 
 holding evidence of preliminary parol agreement for substantial addition to de- 
 mised premises inadmissible under lease of premises "in present condition;" 
 Providence Washington Ins. Co. v. Board of Education, 49 W. Va. 377, 38 S. E. 
 679, holding that provision in fire policy that insurer's right to repair, rebuild, 
 or replace not waived by submission of damage to arbitration precludes oral 
 proof of verbal waiver; Louisville, X. A. & C. R. Co. v. Reynolds. 118 Ind. 172 r 
 20 N. E. 711, holding parol evidence admissible as to extent of services, and com- 
 pensation due, under contract to allow "reasonable attorney's fees" in cases "other 
 than stock cases;" Thompson Foundry & Mach. Co. v. Glass. 136 Ala. 654, 33 
 So. 811, denying admissibility of parol evidence as to collateral agreement to 
 make repairs; Gemmer v. Hunter, 35 Ind. App. 503, 74 X. E. 586, holding that 
 parol evidence is admissible to show the real consideration of a deed; Fierse v. 
 Bronnenberg, 40 Ind. App. 668, 81 N. E. 739, rejecting parol proof to add to sale 
 and conveyance of land an agreement to assume payment of a certain ditch 
 tax; Wysong v. Sells, 44 Ind. App. 241, 88 X. E. 954, holding inadmissible prior 
 oral agreement to pay commission, where title bond makes no provision therefor; 
 McCaskey Register Co. v. Curfman, 45 Ind. App. 304, 90 X. E. 323. holding inad- 
 missible evidence that cash register for which purchaser signed order was taken 
 on trial; Stickney v. Hughes, 12 Wyo. 411, 75 Pac. 945, on the admissibility of 
 parol evidence to show consideration of a written contract. 
 
 Cited in notes (3 L. R. A. 863) on admissibility of parol evidence of condition 
 varying or contradicting commercial paper; (6 L. R. A. 34) on merging of prior 
 negotiations in written contract; (13 L. R. A. 54) on parol evidence as affecting 
 indorsement; (13 L. R. A. 622) on parol evidence inadmissible to vary terms of 
 written instrument; (17 L. R. A. 271) on parol evidence not admissible to vary, 
 add to, or alter a written instrument; (15 Am. St. Rep. 715) on parol evidence as 
 to writings. 
 
 Limited in Matchett v. Knisely, 27 Ind. App. 669, 62 X. E. 87, holding parol 
 evidence admissible to show that deed apparently absolute was intended as mort- 
 gage; Miller v. Barler, 89 Tex. 272, 34 S. W. 601, raising, without deciding, ques- 
 tion of admissibility of parol evidence to vary contract of assumption recited in 
 deed. 
 
 3 L. R. A. 311, CHAPMAX v. CHARLESTOX, 30 S. C. 549, 9 S. E. 591. 
 Transfer of stoclc l>y or to executor. 
 
 Cited in State ex rel. Swinton v. Bates, 38 S. C. 329, 17 S. E. 28. holding state 
 treasurer not required to transfer on his books to an executor stock bequeathed 
 to him by deceased owner, before expiration of time for presenting claims against 
 estate. 
 
 Cited in footnote to Wooten v. Wilmington & W. R. Co. 56 L. R. A. 615. which 
 holds corporation permitting transfer of stock on books by executor bound to see 
 that provisions of will carried out. 
 Authority of one of several executor*. 
 
 Cited in note (127 Am. St. Rep. 381, 387) on authority of one of several exec- 
 utors or administrators. 
 Povrer to permit execntor to resign. 
 
 Cited in note (13 L.R.A. (X.S.) 439) on power to permit executor to resign. 
 
477 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 320 
 
 3 L. R. A. 316, BATES v. TAYLOR, 87 Tenn. 319, 11 S. W. 266. 
 Mandamus or other -writ to executive officers. 
 
 Cited in Brown v. Crystal Ice Co. 122 Tenn. 244, 122 S. W. 84, 19 Ann. Cas. 
 308, holding mandamus proper remedy of stockholder to compel inspection of 
 books. 
 
 Cited in footnote to Port Royal Min. Co. v. Hagood, 3 L. R, A. 841, which re- 
 fuses to compel board of agriculture by mandamus to issue license to mine phos- 
 phate rock. 
 
 Cited in note (58 L. R. A. 866) on independence of co-ordinate departments of 
 government as restriction of jurisdiction of court of last resort in mandamus 
 cases. 
 To governor. 
 
 Cited in State ex rel. Robb v. Stone, 120 Mo. 434, 23 L. R. A. 195, 41 Am. St. 
 Rep. 705, 25 S. W. 376, holding mandamus not issuable to compel payment of 
 claim by governor; People ex rel. Broderick v. Morton, 156 N. Y. 141, 41 L. R. 
 A. 233, 66 Am. St. Rep. 547, 50 N. E. 791, holding mandamus not issuable to 
 compel reinstatement of officer by governor; Hovey v. State, 127 Ind. 594, 11 
 L. R. A. 765, 22 Am. St. Rep. 663, 27 N. E. 175, holding governor cannot be com- 
 pelled by mandamus to issue commission to one claiming election; State ex rel. 
 Rawlinson v. Ansel. 76 S. C. 407, 57 S. E. 185, 11 A. & E. Ann. Cas. 613, as to 
 when certiorari will lie against the Governor; Rice v. The Governor (Rice v. 
 Draper) 207 Mass. 579, 32 L.RJMX.S.) 358, 93 N. E. 821; State ex rel. Latture v. 
 Board of Inspectors, 114 Tenn. 519, 86 S. W. 319, holding that mandamus will 
 not lie to compel Governor of the State to do any act which devolves on him as 
 Governor; State ex rel. Atty. Gen. v, Huston, 27 Okla. 612, 34 L.R.A.(X.S.) 385, 
 113 Pac. 190, holding that district courts have no jurisdiction to control action 
 of Governor even in ministerial acts. 
 
 Cited in notes (11 L.R.A. 763) on mandamus not issuable to control executive 
 discretion; (31 Am. St. Rep. 295, 296, 299; 6 L.R. A. ( N.S. ) 770) on mandamus to 
 Governor. 
 Obiter dictum, vrluit Is not. 
 
 Cited in McFarland v. Bush, 94 Tenn. 541, 27 L. R. A. 663, 45 Am. St. Rep. 760, 
 29 S. W. 899, holding discussion of question fairly involved not obiter, though 
 decision rested on other grounds; Corn v. Rosenthal, 3 Misc. 72, 22 N. Y. Supp. 
 700, holding opinion deciding case on two sufficient grounds not dictum on either. 
 Elections. 
 
 Cited in notes f7 L. R. A. 99) on elections; right of voters to be registered; 
 (5 L. R. A. 403) on contested election of officers. 
 1 .11 '.> of case on second appeal. 
 
 Cited in notes (11 Am. St. Rep. 342; 15 Am. St. Rep. 143) on law of the case 
 on second appeal. 
 
 3 L. R. A. 320, McKINNON v. NORCROSS, 148 Mass. 533, 20 N. E. 183. 
 Liability of master where suitable appliances fnrnished. 
 
 Cited in Miller v. New York, N. H. & H. R. Co. 175 Mass. 365. 56 X. E. 282, 
 holding railroad bound only to furnish to servants sufficient supply of suitable 
 car links; Howard v. Hood/155 Mass. 392, 29 N. E. 630, holding master not liable 
 for fellow servant's negligent placing of proper runway; Adasken v. Gilbert, 165 
 Mass. 445, 43 N. E. 199, holding employer intrusting making of staging to serv- 
 ants not liable for defect : Donnelly v. Booth Bros. & H. I. Granite Co. 90 Me. 
 116, 37 Atl. 874, holding master liable for injuries received through incompe- 
 tency of fellow servants; Standard Pottery Co. v. Moudy, 35 Ind. App. 435, 73 
 
3 L.R.A. 320] L. R. A. CASES AS AUTHORITIES. 478 
 
 N. E. 188, holding master not liable for improper use of suitable appliances by 
 servants resulting in injury to one; Conroy v. Morrill & W. Constr. Co. 194 Mass, 
 480, 80 N. E. 489, holding that a master is not liable as for negligence in furnish- 
 ing an improper appliance, if such appliance was suitable for the work which it 
 was intended to do; Young v. Federal Match Co. 76 N. J. L. 118. 69 Atl. 500 T 
 holding that a duty of operation or incidental thereto was the duty of the serv- 
 ant for which master was not liable; Haskell & B. Car Co. v. PrzezdziankowskL 
 170 Ind. 10, 14 L.R.A. (N.S.) 977, 127 Am. St. Rep. 352, 83 N. E. 626, on the duty 
 resting upon a master to provide a safe and suitable place for his workman; 
 Hamlin v. Lanquist & I. Co. Ill Minn. 497, 127 N. W. 490, 20 Ann. Cas. 893 (dis- 
 senting opinion), on liability of master for injury to servant from failure to use 
 derrick clamps furnished. 
 
 Cited in footnote to Towne v. United Electric G. & P. Co. 70 L.R.A. 214, which 
 holds corporation maintaining poles to support electric wires which furnishes 
 ordinary pike poles in good condition for handling such poles not liable for injury 
 to employee caused by fellow servant's use of dull pike pole in taking down pole. 
 . Cited in notes (54 L. R. A. Ill, 112) on nonliability of master for negligent- 
 use of safe appliances by fellow servant; (54 L. R. A. 141) on coservant's negli- 
 gence in failing to adjust or secure instrumentalities or their parts while in use; 
 when not imputed to master; (54 L. R. A. 163) on when master not liable for Co- 
 servant's negligence in failing to replace an unsound by a sound appliance. 
 Foreman as fellow servant. 
 
 Cited in McGinty v. Athol Reservoir Co. 155 Mass. 188, 29 N. E. 510, holding 
 employer not liable for negligence of foreman assisting to secure movable der- 
 rick; Moody v. Hamilton Mfg. Co. 159 Mass. 72, 38 Am. St. Rep. 396, 34 N. E. 
 185, holding master not liable for negligence of superior giving orders to inferior 
 servant; Galvin v. Pierce, 72 N. H. 82, 54 Atl. 1014, holding laborer excavating 
 rocks and attaching chains, and foreman directing operation of derrick, fellow 
 servants. 
 
 Cited in footnote to Vogel v. American Bridge Co. 70 L.R.A. 725, which holds, 
 master not liable for injury to workman through competent foreman's negligence 
 or error of judgment in requiring use of piece of rope improper for purpose 
 intended. 
 Declarations of servant after occurrence inadmissible. 
 
 Cited in Tyler v. Old Colony R. Co. 157 Mass. 339, 32 N. E. 227, holding dec- 
 laration of defendant's servant as to why he did not flag train inadmissible; 
 Cole v. New York, N. H. & H. R. Co. 174 Mass. 539, 55 N. E. ,1044, holding dec- 
 larations of engineer after accident inadmissible against railroad company ; Geary 
 v. Stevenson, 169 Mass. 31, 47 N. E. 508, holding in action for false imprison- 
 ment, declarations of defendant's servant, after making arrest, inadmissible. 
 Xegligrenee of master ninst be shown. 
 
 Cited in Peirce v. Kile, 26 C. C. A. 203, 53 U. S. App. 291, 80 Fed. 867, holding 
 proof of accident to servant by breaking of rope raises no presumption of mas- 
 ter's negligence; Doherty v. Booth, 200 Mass. 525, 86 N. E. 945, holding that a 
 stevedore was liable for personal injuries sustained by a longshoreman in his 
 employ by the falling of a staging, caused by breaking of rope which employer 
 knew or ought to have known had become defective by age. 
 
 3 L. R. A. 322, FERGUSON v. ROSS, 38 Fed. 161. 
 Jurisdiction of Federal conrts. 
 
 Cited in United States v. Mexican Nat. R. Co. 40 Fed. 771, holding circuit court 
 has no jurisdiction of suit, civil in form, to recover penalty less than $2,000; 
 
479 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 325 
 
 Huntington v. Attrill, 146 U. S. 673, 36 L. ed. 1130, 13 Sup. Ct. Rep. 224, hold- 
 ing action to enforce director's liability for corporation's debts, not penal in 
 nature, maintainable in Federal court; Indiana use of Delaware County v. 
 Alleghany Oil Co. 85 Fed. 873, holding Federal courts without jurisdiction over 
 suit, civil in form, to recover penalty under state law. 
 Removal of cause from state to Federal court. 
 
 Cited in Indiana v. Tolleston Club, 53 Fed. 19, holding suit between one state 
 and citizens of another not removable to Federal court on ground of diverse 
 citizenship; Arkansas v. St. Louis & S. F. R. Co. 173 Fed. 574, holding that an 
 action to recover penalty for violation of a statute was not removable; Chicago, 
 St. L. & N. 0. R. Co. v. Com. 115 Ky. 285, 72 S. W. 1119, holding that a state is 
 not a citizen within the act providing for removal of suit between citizens of 
 different states. 
 
 Cited in footnote to Herndon v. J&tna. F. Ins. Co. 10 L. R. A. 54, which holds 
 petition for removal of cause not aided by allegations as to residence in com- 
 plaint. 
 
 Cited in note (5 L. R. A. 476) on removal of cause. 
 
 Distinguished in Missouri, K. & T. R. Co. v. Missouri R. & Warehouse Comrs. 
 183 U. S. 59, 46 L. ed. 84, 22 Sup. Ct. Rep. 18, Reversing 151 Mo. 659, 52 S. W. 
 351, holding state not real party in action by railroa.d commissioners to compel 
 compliance with order respecting rates for use of bridge. 
 
 3 L. R. A. 324, LEATHERMAN v. TIMES CO. 88 Ky. 291, 21 Am. St. Rep. 342, 
 
 11 S. W. 12. 
 Statute of limitations as affecting amendments to pleading?. 
 
 Cited in Anderson v. Atchison,. T. & S. F. R. Co. 71 Kan. 455, 80 Pac. 946, 
 holding that a party against whom the cause of action had been barred by the 
 statute, could not be made a party to the suit by amendment. 
 
 Cited in note (39 L. ed. U. S. 986) on amendment of pleading as affecting stat- 
 ute of limitations. 
 
 Distinguished in Cincinnati, N. O. & T. P. R. Co. v. Gray, 50 L. R. A. 50, 41 
 C. C. A. 537, 101 Fed. 625, holding amendment to petition, substantive cause of 
 action remaining unchanged, not new suit for purpose of limitations; Teets v. 
 Snider Heading Mfg. Co. 120 Ky. 657, 87 S. W. 803, holding where defendant was 
 sued as a corporation and plea set up that it was a partnership it was error not 
 to permit amendment of pleading to show this. 
 Commencement of an action sufficient to suspend statute of limitations. 
 
 Cited in Geneva Cooperage* Co. v. Brown, 124 Ky. 25, 124 Am. St. Rep. 388, 
 98 S. W. 279, holding an institution of an action against a concern supposed to 
 be a corporation but which was a partnership was not a commencement of an 
 action against the individual members. 
 
 Cited in note (40 L.R.A. (N.S.) 568) on effect of erroneously describing de- 
 fendant in process as corporation instead of individual or partnership, or vice 
 versa. 
 Acquisition of jurisdiction over new parties. 
 
 Cited in note (50 Am. St. Rep. 741) on acquiring jurisdiction over new parties. 
 
 3 L. R. A. 325, BLOCK v. HENDERSON, 82 Ga. 23, 14 Am. St. Rep. 138, 8 
 
 S. E. 877. 
 
3 L.R.A. 327] L. R. A. CASES AS AUTHORITIES. 480 
 
 3 L. R. A. 327, CRUSE v. ADEX, 127 111. 231, 20 N. E. 73. 
 Statutory construction. 
 
 Cited in Harrison v. People, 92 111. App. 651, Affirmed on opinion of court be- 
 low in 191 111. 267, 61 X. E. 99; People ex rel. Columbia Constr. Co. v. Hinrich- 
 sen, 161 111. 226, 43 N. E. 973; Tudor v. Chicago & South Side Rapid Transit 
 R. Co. 154 111. 138, 39 X. E. 136; People ex rel. Keeney v. Chicago, 152 111. 552, 
 38 X. E. 744, holding language of statute to be interpreted according to intent 
 gathered from necessity or reason for enactment; People ex rel. Stevens v. Fidel- 
 ity & C. Co. 153 111. 36, 26 L. R. A. 299, 38 N. E. 752, holding title of act may 
 be regarded in ascertaining legislative intention; Indiana, I. & I. R. Co. v. Peo- 
 ple, 154 111. 568, 39 X. E. 133, construing according to intent statute purport- 
 ing to extend town's corporate powers, manifestly misdescribiug boundaries; 
 Schmaedeke v. People, 63 111. App. 664, holding restriction of sales to habitual 
 drunkards applies to original-package dealers; Chicago v. Wilshire, 243 111. 126, 90 
 X. E. 245, holding title of ordinance may be considered in determining construc- 
 tion of ordinance; People v. RuSsell, 245 111. 283, 91 N. E. 1075 (dissenting opin- 
 ion), on the construction according to intention gathered from reason and neces- 
 sity for enactment; Eufaula v. Gibson, 22 Okla. 518, 98 Pac. 565, on the intent 
 gathered from the necessity or reason for enactment as affecting construction. 
 Against liquor traffic. 
 
 Cited in Schulte v. Menke, 111 111. App. 215, holding dram-shop act is penal in 
 character and should be carefully construed. 
 
 Cited in note (21 L.R.A. (X.S.) 134) on social treating as offense under liquor 
 law. 
 
 Distinguished in Litch v. People, 19 Colo. App. 426, 75 Pac. 1079; People v. 
 Myers, 161 Mich. 43, 125 X. W. 701, holding that under a local option law, the 
 giving of a drink of intoxicating liquor was a violation of the statute though the 
 giver was not engaged in the liquor trade. 
 .Liability for injury to intoxicated person. 
 
 Cited in Westphal v. Austin, 41 111. App. 654, holding dealer selling liquor, 
 helping to form appetite leading to final injury, not liable under dramshop act: 
 Walker v. Dailey, 101 111. App. 578, holding merchant selling lemon extract con 
 taining alcohol, not as device to evade law, not liable; Johnson v. Gram, 72 111. 
 App. 680, holding dealer liable for injury occasioned by drinking liquor by one 
 "treated" in his saloon; Schulte v. Menke, 111 111. App. 215, denying saloon keep- 
 er's liability under dramshop act for injuries to intoxicated person, inflicted by 
 third person; Peter Anderson & Co. v. Diaz, 77 Ark. 608, 4 L.R.A.(X.S.) 650, 113 
 Am. St. Rep. 180, 92 S. W. 861, holding that the saloon keeper was not so liable 
 under the rules of common law. 
 
 Cited in notes (7 L.R.A. 301) on action by wife for damages for injury to 
 means of support by sale of liquor; (40 L.R.A. (X.S.) 360) on wife's right of ac- 
 tion at common law against one selling drugs or liquor to husband. 
 
 Distinguished in Clears v. Stanley. 34 111. App. 340, holding dramshop act ap- 
 plies to brewer selling liquor in cask from brewery; Layton v. Deck, 63 111. App. 
 556, holding druggist selling alcohol liable for damages occasioned thereby. 
 Penal nature of Dram Shop Acts. 
 
 Cited in Schulte v. Schleeper, 210 111. 360, 71 X. E. 325, holding "Dramshop 
 Act," was penal in its nature. 
 
 3 L. R. A. 330, BULKLEY v. DEVIXE, 127 111. 406, 20 X. E. 16. 
 Parol evidence varying written instrument. 
 
 Cited in Henry v. Herschey, 9 Idaho, 554, 75 Pac. 266, holding parol evidence 
 admissible to show that condition in written contract had been complied with. 
 
481 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 332 
 
 Cited in notes (17 L.R.A. 271) on parol evidence admissible to vary, add 
 to, or alter written contract; (13 L. R. A. 54) on parol evidence as affecting in- 
 dorsement; (6 L. R. A. 45; 13 L. R. A. 622; 17 L. R. A. 272) on limit and ex- 
 ceptions to rule excluding parol evidence varying written instrument; (11 Am. 
 St. Rep. 395) on parol evidence as to writing. 
 Parol evidence to Identify subject-matter of contract. 
 
 Cited in Marske v. Willard, 169 111. 282, 48 X. E. 290, and Paugh v. Paugh, 
 40 111. App. 144, holding parol evidence admissible to identify leased premises; 
 Chicago Pressed Steel Co. v. Clark. 87 111. App. 664, holding parol evidence ad- 
 missible to identify lease referred to in another instrument; Cumberled^e v. 
 Brooks, 235 111. 257, 85 X. E. 197, holding parol evidence admissible to identify 
 subject matter of contract; Clayton v. Lemen, 233 111. 437, 84 X. E. 691; Staub 
 v. Hampton, 117 Tenn. 726, 101 S. W. 776, holding parol evidence admissible to 
 identify land described in a conveyance. 
 
 Cited in note (6 L. R. A. 44) on admissibility of parol evidence to identify 
 property referred to in written instrument. 
 "When tenant cannot repudiate lease. 
 
 Cited in McLennan v. Grant, 8 Wash. 605, 36 Pac. 682, holding one in posses- 
 sion under lease cannot repudiate it for uncertainty in description. 
 Action for rent. 
 
 Cited in Kelly v. Galbraith, 87 111. App. 69, holding action for rent of prem- 
 ises erroneously described in lease properly brought in law. 
 Harmless error. 
 
 Cited in note (11 Am. St. Rep. 287) on harmless error. 
 
 3 L. R. A. 332, HEXRY & C. CO. v. EVAXS, 97 Mo. 47, 10 S. W. 868. 
 
 Followed without special discussion in Chilton v. Lindsay, 38 Mo. App. 62. 
 Liens of subcontractors. 
 
 Cited in Ittner v. Hughes, 133 Mo. 691, 34 S. W. 1110, and The Victorian, 24 
 Or. 139, 41 Am. St. Rep. 838, 32 Pac. 1040, holding materialman's lien not af- 
 fected by full payment to principal contractor; Bruce Lumber Co. v. Hoos, 67 
 Mo. App. 277, holding materialman can enforce lien only for reasonable value 
 of materials furnished; Williams v. Dittenhoefer, 188 Mo. 143, 86 S. W. 242, 
 on the subcontractor's right of lien; Meyer v. Schmidt, 130 Mo. App. 3.38. 109 
 S. W. 832, holding that it is no defense to an action by materialman to enforce 
 lien that the owner had paid the contractor the full price before notice of the 
 claim, and the contractor had abandoned the contract. 
 
 Distinguished in Badger Lumber Co. v. Stepp, 157 Mo. 383, 57* S. W. 1059, 
 holding contract between lot owner and contractor prerequisite to materialman's 
 lien. 
 Validity of statutes regulating Hens and compensation for services. 
 
 Cited in Jones v. Great Southern Fireproof Hotel Co. 30 C. C. A. 119, 58 U. S. 
 App. 397, 86 Fed. 381, Affirmed in 93 U. S. 550, 48 L. ed. 788, 24 Sup. Ct. Rep. 
 576; Barrett v. Millikan, 156 Ind. 514, 83 Am. St. Rep. 220, 60 X. E. 310; High- 
 tower v. Bailey, 108 Ky. 206, 49 L. R. A. 257, 94 Am. St. Rep. 350, 56 S. W. 147, 
 holding statute giving lien to subcontractors, irrespective of indebtedness of 
 owner to contractor, constitutional; Karnes v. American F. Ins. Co. 144 Mo. 417, 
 46 S. W. 166, holding statute declaring void part of contract limiting time in 
 which suit may be brought constitutional; State v. Loonris. 115 Mo. 329, 21 L. R. 
 A. 808. 22 S. W. 350 (dissenting opinion), majority holding statute prohibiting 
 payment of wages by mining or manufacturing concern by store order not re- 
 deemable in cash at holder's option unconstitutional; State v. Gregory, 170 Mo. 
 L.R.A. Au. Vol. L 31. 
 
3 L.R.A. 332] L. R. A. CASES AS AUTHORITIES. 482 
 
 604, 71 S. W. 170, sustaining statute making it misdemeanor for contractor to 
 obtain lumber by false promises; Chicago Lumber Co. v. Newcomb. 10 Colo. App. 
 273. 74 Pac. 786, holding a law giving subcontractor a lien was constitutional; 
 Stimson Mill Co. v. Nolan, 5 Cal. App. 761, 91 Pac. 262; Gardner & M. Co. v. Xew 
 York C. & H. R. R. Co. 72 X. J. L. 261, 62 Atl. 416, holding a statute giving a 
 mechanics' lien is not unconstitutional because it deprives the owner of property 
 without due process of law; O'Connor v. St. Louis Transit Co. 198 Mo. 640, 115 
 Am. St. Rep. 495. 97 S. W. 150, 8 A. & E. Ann. Gas. 703, holding statute giving 
 attorneys a lien is constitutional. 
 Power of appellate court to direct judgment. 
 
 Cited in Ozark Plateau Land Co. v. Hays, 105 Mo. 153, 16 S. W. 957, holding 
 appellate court may direct different judgment on agreed statement, without 
 ordering new trial. 
 Review of legislation by courts. 
 
 Cited in State ex rel. Scotland County v. Bacon, 107 Mo. 633, 18 S. W. 19, 
 holding courts may not question wisdom or expediency of constitutional legis- 
 lation. 
 3Ieaiiing- of words. 
 
 Cited in Henry v. Grand Ave. R. Co. 113 Mo. 537, 21 S. W. 214, holding words 
 in instruction to be taken in usual, ordinary meaning; State ex rel. Kochtitzky v. 
 Riley, 203 Mo. 187, 12 L.R.A.(N.S.) 903, 101 S. W. 567, holding that a constitu- 
 tional amendment is to be read and the words used in their ordinary, usual and 
 natural meaning. 
 
 Cited in note (12 Am. St. Rep. 827) on construction of statutes. 
 
 3 L. R. A. 337, SEDDON v. ROSENBAUM, 85 Va. 928, 9 S. E. 326. 
 
 Second appeal in 94 Va. 575, 27 S. E. 425. 
 Statute of frauds. 
 
 Cited in Wynn v. Followill, 98 Mo. App. 465, 72 S. W. 140, holding agreement 
 to furnish servant to care for infant not within statute. 
 
 Cited in notes (5 L. R. A. 324) on enforcement of verbal contracts relating to 
 land, fully performed by one party; (10 L. R. A. 727) on lease within statute of 
 frauds. 
 - Contracts not to be performed within year. 
 
 Cited in Lee v. Hill, 87 Va. 505, 24 Am. St. Rep. 666, 12 S. E. 1052, holding 
 verbal contract for one year's service, to commence thereafter, void; Richmond 
 Union Pass. R. Co. v. Richmond, F. & P. R. Co. 96 Va. 675, 32 S. E. 787, holding 
 contract to erect gate and provide keeper at crossing, not fixing time for per- 
 formance, not within statute; Thomas v. Armstrong, 86 Va. 326, 5 L. R. A. 531, 
 footnote, p. 529, 10 S. E. 6, holding verbal agreement for legacy, in considera- 
 tion of services, not within statute; Kendall v. Garneau, 55 Neb. 407. 75 X. W. 
 852, holding covenant in deed not subscribed by grantee, to pay mortgage not 
 due within year, not within statute; Reed v. Gold, 102 Va. 50, 45 S. E. 868, hold- 
 ing an oral subscription for stock is not within the statute, where the title passes 
 at once but the purchase price is not paid within the year; Tyler v. St. Louis 
 Southwestern R. Co. 99 Tex. 497, 91 S. W. 1, 13 A. & E. Ann. Cas. 911, holding 
 contract which by its terms may be fully performed by one party within one 
 year and which is so performed is not within the statute. 
 
 Cited in footnotes to Lewis v. Tapman, 47 L. R. A. 385. which holds contract 
 to marry "within three years" not within statute of frauds; Weatherford, M. W. 
 & X. W. R. Co. v. Wood, 28 L. R. A. 526, which holds not within statute of 
 frauds contract to give pass to man and his family annually for ten years; 
 
483 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 342 
 
 Wahl v. Barnum, 5 L. R. A. 623, which holds void oral contract for partnership 
 for more than one year; Hand v. Osgood, 30 L. R. A. 379, which holds oral lease 
 for year, with privilege of three at annual rent, void; Brown v. Throop, 13 L. R. 
 A. 646, which holds parol agreement in March for lease of icehouse for one year 
 from April, to be left full on surrendering possession, valid. 
 
 Cited in notes (7 L. R. A. 785; 9 L. R. A. 129; 11 L. R. A. 621) on statute 
 of frauds; contracts not to be performed within one year; (138 Am. St. Rep. 6061 
 on agreements not to be performed within a year. 
 
 3 L. R. A. 341, MOE v. SMILEY, 125 Pa. 136, 17 Atl. 228. 
 Survivnbilitv of actions. 
 
 Cited in Haggerty v. Pittston, 9 Kulp, 576, holding father's action for negli- 
 gent death of minor will not abate at former's death; Weiss v. Hunsicker, 14 Pa. 
 Co. Ct. 399, 3 Pa. Dist. R. 446, holding action in trespass for death by vio- 
 lence will not survive death of defendant, though action begun before. 
 
 Cited in footnote to Aylsworth v. Curtis, 33 L. R. A. 110, which holds sur- 
 vivable, action for value of property stolen. 
 For injuries through ivr,'iin I ul act. 
 
 Cited in Letson v. Brown, 11 Colo. App. 13, 52 Pac. 287, holding one negli- 
 gently injured cannot maintain action against deceased wrongdoer's estate; Ham- 
 ilton v. Jones, 125 Ind. 178, 25 N. E. 192, and Davis v. Nichols, 54 Ark. 360, la 
 S. W. 880, upholding action for benefit of widow upon wrongdoer's death; John- 
 son v. Farmer, 89 Tex. 611, 35 S. W. 1062, holding statutory liability for in- 
 juries causing death does not survive death of wrongdoer before suit; Maher v. 
 Philadelphia Traction Co. 181 Pa. 398, 40 W. N. C. 480, 37 Atl. 571, holding re- 
 covery by administrator in negligence action includes injury to decedent's person- 
 as well as value of life; Will v. Edison Electric Light Co. 19 Lane. L. Rev. 340 r 
 holding damages to children for negligent death of father recoverable in action; 
 by mother's administrator; Smith v. Lehigh Valley R. Co. 232 Pa. 461, 81 Atl. 
 554. Affirming 15 Luzerne Leg. Reg. 315, holding that husband's right of action 
 for injury to wife survives his death; McHugh v. Grand Trunk R. Co. 2 Ont. L. 
 Rep. 608, on the survivability of action for death by wrongful act; Bates v. Syl- 
 ester, 205 Mo. 506, 11 L.R.A.(N.S.) 1162, 120 Am. St. Rep. 761, 104 S. W. 73, 12 
 A. & E. Ann. Cas. 457, holding that a cause of action does not survive after death 
 of wrongdoer. 
 
 Cited in footnote to Perkins v. Stein, 20 L. R. A. 861, which holds survivable, 
 action for negligently driving over person. 
 
 Cited in notes (4 L.R.A. 261) on liability for death caused by negligence; (11 
 L.R.A. (X.S.) 1157) on cause of action for wrongful death as surviving wrongdoer; 
 (2 Eng. Rul. Cas. 17) on abatement of action for tort by death of wrongdoer. 
 
 Distinguished in Devine v. Healy, 241 111. 38, 89 N. E. 251, holding adminis- 
 trator of deceased may maintain suit for death by wrongful act, against the 
 executor of the wrongdoer. 
 Ripht of action for death by wrongful act. 
 
 Cited in Fulco v. Schuylkill Stone Co. 163 Fed. 126, holding that an alien who 
 has never been in this country and who owns no property here, has no right of 
 action for death by wrongful act, in the courts. 
 
 Cited in note (70 Am. St. Rep. 686) on action for death of human being. 
 
 3 L. R. A. 342, HARTWELL v. NORTHERN PACIFIC EXP. CO. 5 Dak. 463, 
 
 41 N. W. 732. 
 Carrier's liability for loss of goods. 
 
 Cited in footnotes to Oakes v. Northern P. R. Co. 12 L.R.A. 318, which holds 
 
 i 
 
3 L.R.A. 342] L. R. A. CASES AS AUTHORITIES. 484 
 
 carriers insurers of baggage; Yazoo & M. V. R. Co. v. Blackmar, 67 L.R.A. 640, 
 which holds papers of employer pertaining to business of an insurance agent not 
 baggage of the latter. 
 
 Cited in notes (6 L. R. A. 849) on liability of carrier of freight as insurer; 
 (7 L. R. A. 216) on limit to liability of common carriers for loss of goods; (11 
 L. R. A. 616) on act of God as defense in action for loss by carrier. 
 Restriction of liability by common carrier. 
 
 Cited in Meuer v. Chicago, M. & St. P. R. Co. 5 S. D. 575, 25 L. R. A. 84, 49 
 Am. St. Rep. 878, 59 N. W. 945, holding that under Dakota laws common car- 
 riers may limit liability, by contract, except as to gross negligence, fraud, or 
 wilful wrong; Kirby v. Western U. Teleg. Co. 4 S. D. 116, 30 L. R. A. 619, 46 
 Am. St. Rep. 765, 55 N. W. 759, holding carrier cannot exact agreement limiting 
 liability as condition precedent to performance of duty; Kirby v. Western U. 
 Teleg. Co. 7 S. D. 627, 30 L. R. A. 622, 65 S. W. 37, holding regulation of com- 
 mon carrier limiting time for presenting damage claim does not affect liability 
 nor shorten time for commencing action; Hanson v. Great Northern R. Co. 18 X. 
 D. 329, 138 Am. St. Rep. 768, 121 X. W. 78, holding void, contract fixing value 
 of household goods at $5 per hundred weight; Lothian v. Western U. Teleg. Co. 
 25 S. D. 322, 126 X. W. 621, holding that telegraph company cannot exempt itself 
 from liability from gross negligence, fraud, or willful wrong. 
 
 Annotation cited in Ingram v. Weir, 166 Fed. 331, holding that a limitation 
 in a bill of lading requiring actions for loss of goods to be brought within one 
 year, was valid. 
 
 Cited in footnote to Chicago & N. W. R. Co. v. Chapman, 8 L. R. A. 508, which 
 holds carrier cannot limit liability for gross negligence or wilful misconduct. 
 
 Cited in notes (12 L. R. A. 800) on limitation of carrier's liability by con- 
 tract; (10 L. R. A. 420) on restriction on power of common carrier to limit lia- 
 bility by contract; (17 L.R.A. (X.S.) 634) on validity of stipulation requiring 
 notice within specified time, as applied to loss due to carrier's negligence; (88 
 Am. St. Rep. 132) on limitation of carrier's liability in bills of lading. 
 
 Distinguished in Hazel v. Chicago, M. & St. P. R. Co. 82 Iowa, 482, 48 X. W. 
 926, holding special contract limiting liability of common carrier, signed by 
 shipper, binding. 
 
 3 L. R. A. 349, SAMPSOX v. SAMPSOX, 16 R. I. 456, 16 Atl. 711. 
 Decree for alimony. 
 
 Cited in Cariens v. Cariens, 50 W. Va. 116, 55 L. R, A. 932, 40 S. E. 335, 
 holding decree of divorce res judicata as to alimony; Mayer v. Mayer, 154 
 Mich. 390, 19 L.R.A.(X.S.) 247, 129 Am. St. Rep. 477, 117 X. W. 890, holding 
 a decree for alimony in a divorce a vinculo made without reserve, though 
 payable in installments, is final, and cannot be modified after enrollment of 
 decree unless right is reserved or given by statute. 
 
 Cited in footnote to Livingston v. Livingston, 61 L. R. A. 800, which holds that 
 unchangeable provision for alimony in divorce decree cannot be impaired by sub- 
 sequent statute empowering courts to modify same. 
 
 Distinguished in Alexander v. Alexander, 13 App. D. C. 354, 45 L. R. A. 813, 
 holding that court may subsequently modify decree for alimony made without 
 reserve. 
 Termination of right to alimony. 
 
 Cited in footnote to Wetmore v. Wetmore, 48 L. R. A. 666. which holds right 
 to alimony from income of testamentary trust for support of former husband 
 terminated by remarriage of divorced woman. 
 
485 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 350 
 
 3 L. R. A. 350, UNION P. R. CO. v. DE BUSK, 12 Colo. 294, 13 Am. St. Rep. 
 221, 20 Pac. 752. 
 
 Followed without special discussion in Union P. R. Co. v. Moffatt, 12 Colo. 
 310, 20 Pac. 759; Home Ins. Co. v. Atchison, T. & S. F. R. Co. 19 Colo. 49, 34 
 Pac. 281 ; Union P. R. Co. v. Tracy, 19 Colo. 332, 35 Pac. 537 ; Union Paeific, D. 
 & G. R. Co. v. Williams, 3 Colo. App. 527, 34 Pac. 731; Union P. R, Co. v. 
 Arthur, 2 Colo. App. 160, 29 Pac. 1031. 
 General appearance as waiving objection to MI m mo us or jurisdiction. 
 
 Cited in Boston & C. Smelting Co. v. Reed, 23 Colo. 529, 48 Pac. 515, holding 
 general appearance waives objection to jurisdiction; Ruby Chief Min. & Mill. 
 Co. v. Gurley, 17 Colo. 200, 29 Pac. 668, and Lord v. Hendrie & B. Mfg. Co. 13 
 Colo. 394, 22 Pac. 782, holding error in overruling motion to quash summons cured 
 by goneral appearance; Loveland v. Union Xat. Bank, 25 Colo. 504, 56 Pac. 61, 
 holding voluntary appearance by administrator waives failure to enter order con- 
 tinuing hearing on claim; Speer v. Burlingame, 61 Mo. App. 84, holding that 
 application for change of venue waives objection to jurisdiction; Corbett v. 
 Physicians' Casualty Asso. 135 Wis. 512, 16 L.R.A.(X.S.) 186, 115 N. W. 
 365, holding a trial of an action upon the merits waives all questions of 
 jurisdiction as to defendant participating therein. 
 
 Cited in notes (16 L.R.A.(X.S.) 180) on contest on merits after special 
 appearance, as waiver of objections to jurisdiction over person; (22 Am. St. Rep. 
 452) on waiver of defect in summons by appearance. 
 
 Criticized in Curtis v. Howard, 33 Fla. 259, 14 So. 812, holding that general 
 appearance does not waive objection to court's jurisdiction over person. 
 Railroad's liability for fires or injury to stock. 
 
 Cited in note (11 L. R. A. 508) on railroad company's liability for fire com- 
 municated by defective engine appliances. 
 Evidence as to origin of fire. 
 
 Cited in Abrams v. Seattle & M. R. Co. 27 Wash. 514, 68 Pac. 78, holding cir- 
 cumstances leading reasonably to inference, sufficient to support jury's finding 
 that fire originated from locomotive; Crissey & F. Lumber Co. v. Denver & R. 
 G. R. Co. 17 Colo. App. 302, 68 Pac. 670, and John Mouat Lumber Co. v. Wil- 
 more, 15 Colo. 140, 25 Pac. 556, holding finding that fire was started by sparks 
 from mill warranted by evidence that there was no other known source, and the 
 fires had frequently been started before by sparks from mill; Louisville & N. 
 R. Co. v. Marbury' Lumber Co. 132 Ala. 527, 90 Am. St. Rep. 917, 32 So. 745, 
 holding evidence of excessive use of steam competent on question whether fire 
 started by engine; Burlington & M. River R. Co. v. Burch, 17 Colo. App. 492, 69 
 Pac. 6. holding evidence showing that fire started immediately after train passed 
 sufficient to establish liability; Continental Ins. Co. v. Chicago & N. W. R. 
 Co. 97 Minn. 473, 5 L.R.A.(N.S.) 107, 107 N. W. 548, on the sufficiency of 
 evidence of negligence in setting fires: MacDonald v. New York, N. H. & H. 
 R. Co. 25 R. I. 44, 54 Atl. 795, holding that evidence that defendant's en- 
 gines had previously set fires along track and other similar evidence, was 
 admissible; Colorado Midland R. Co. v. Snider, 38 Colo. 355, 88 Pac. 453; 
 Lemann Co. v. Texas & P. R. Co. 128 La. 1091, 55 So. 684; Big River Lead 
 Co. v. St. Louis, I. M. & S. R. Co. 123 Mo. App. 405, 101 S. W. 636; Gulf, 
 C. & S. F. R. Co. v. Meentzen Bros. 52 Tex. Civ. App. 420, 113 S. W. 1000: 
 Gulf, C. & S. F. R. Co. v. Blakeney-Stevens-Jackson Co. 48 Tex. Civ. App. 447, 
 106 S. W. 1140. holding that evidence that fire started soon after train passed 
 and there was none before nor other apparent cause, was sufficient to raise pre- 
 sumption that fire was set by engines: Cyle v. Denver & R. G. R. Co. 37 Colo. 
 301, 86 Pac. 1010, holding that where the evidence showed that the wind was 
 
3 L.R.A. 3501 L. R. A. CASES AS AUTHORITIES. 486 
 
 blowing away from where the fire began, and other things tending to show im- 
 probability that it was set by engine, it was not sufficient to raise presumption. 
 
 Limited in Union P. R. Co. v. Arthur, 2 Colo. App. 162, 29 Pac. 1031, holding, 
 in action under statute making railroad liable for fires, origin of fire not to be 
 established by inference. 
 Constitutional law Denial of equal protection or due process. 
 
 Cited in St. Louis & S. F. R. Co. v. Mathews, 165 U. S. 21, 41 L. ed. 619, 17 
 Sup. Ct. Rep. 243, Affirming 121 Mo. 314, 25 L. R. A. 168, 24 S. W. 591, upholding 
 statute imposing absolute liability on railroad for fires. 
 
 Cited in footnote to Wadsworth v. Union P. R. Co. 23 L. R. A. 812, which holds 
 unconstitutional act creating absolute liability for stock killed or injured by 
 trains. 
 
 Distinguished in Denver & R. G. R. Co. v. Outcalt, 2 Colo. App. 399, 31 Pac. 
 177, and Wadsworth v. Union P. R. Co. 18 Colo. 609, 23 L. R. A. 816, 36 Am. St. 
 Rep. 309, 33 Pac. 515, holding statute making railroad liable for stock killed, ir- 
 respective of negligence, unconstitutional ; Wadsworth v. Union P. R. Co. 18 Colo. 
 610, 23 L. R, A. 816, 36 Am. St. Rep. 309, 33 Pac. 515, holding common-law 
 liability for stock killed depends on negligence. 
 
 Criticised in Bradford Constr. Co. v. Heflin, 88 Miss. 357, 12 L.R.A.(X.S-) 
 1050, 42 So. 174, 8 A. & E. Ann. Cas. 1077, holding a law unconstitutional 
 which applied to railroad corporations only, as not affording equal protec- 
 tion of the laws. 
 
 Police power. 
 
 Cited in Platte & D. Canal & Mill. Co. v. Dowell, 17 Colo. 386, 30 Pac. 68, up- 
 holding statute requiring covering of canal within city limits. 
 
 Interference with interstate commerce. 
 
 Cited in Burrows v. Delta Transp. Co. 106 Mich. 596, 29 L. R. A. 473, 64 X. W. 
 501, holding state statute requiring use of fire screens in steamer stacks not in- 
 terference with interstate commerce. 
 Construction of statute making' railroad liable for fires. 
 
 Cited in Denver, T. & G. R. Co. v. De Graff, 2 Colo. App. 45, 29 Pac. 664, hold- 
 ing necessity for proof of negligence obviated by statute; Mathews v. St. Louis 
 A S. F. R. Co. 121 Mo. 331, 25 L. R. A. 173, 24 S. W. 591, holding that statute 
 creates more than prima facie liability; Garnet Ditch & Reservoir Co. v, 
 Sampson, 48 Colo. 292, 110 Pac. 79, on construction of statute making rail- 
 road liable for fires; Eraser v. Pere Marquette R. Co. 18 Ont. L. Rep. 597, hold- 
 ing that owner cannot recover for baled hay waiting shipment under act 
 making railroad liable for burning of crops from locomotive sparks. 
 
 Cited in note (62 Am. St. Rep. 171) on statutes making railroad liable for 
 fire. 
 Construction of remedial statutes. 
 
 Cited in Arnold v. Arnold, 140 Ind. 203, 39 N. E. 862, holding remedial stat- 
 ute giving wife right of action for support to be liberally construed. 
 
 Statutes applying: to railroad corporations. 
 
 Cited in Lewis v. Northern P. R. Co. 36 Mont. 217, 92 Pac. 469, holding statute 
 making "railroad corporation" liable for injuries to servants, applied to all 
 persons engaged in operating a railroad, individuals or not. 
 Cbarter of corporation as a contract. 
 
 Cited in American Smelting & Ref. Co. v. People, 34 Colo. 254, 82 Pac. 531, 
 on the charter of a corporation as a contract. 
 
487 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 363 
 
 3 L. R. A. 355, TERRITORY ex rel. McMAHOX v. O'COXXOR, 5 Dak. 397, 41 
 X. W. 746. 
 
 Followed without special discussion in Minnehaha County v. Champion, 5 
 Dak. 440, 41 N. W. 754. 
 Local option l:i \> . 
 
 Cited in Champion v. Minnehaha County, 5 Dak. 431, 41 N. W. 739, holding 
 that local option laws do not affect liberty or property, entitling private citizen to 
 certiorari to review action of commissioners; State ea> rel. Ohlquist v. Swan, 1 
 X. D. 9, 44 X. W. 492, and Territory v. Pratt, 6 Dak. 493, 43 X. W. 711, hold- 
 ing adoption of prohibition by county under local option law does not repeal 
 law prescribing penalties for unlicensed sale of liquor; State ex rel. Witter v. 
 Forkner, 94 Iowa, 11, 28 t>. R. A. 210, 62 X. W. 772, holding statute permitting 
 suspension of prohibitory law upon consent of voters of locality not unconstitu- 
 tional as delegating legislative power; State ex rel. Crothers v. Barber, 19 S. 
 D. 11, 101 X. W. 1078; Re O'Brien, 29 Mont. 537, 75 Pac. 196, 1 A. & E. Ann. 
 Cas. 373, holding a county option law constitutional. 
 
 Cited in notes (7 L.R.A. 296) on right of state to prohibit manufacture and 
 sale of spirituous liquors; (1 L.R.A. (X.S.) 483) on local option law as uncon- 
 stitutional delegation of power; (15 L.R.A. (X.S.) 922) on constitutional 
 right to prohibit sale of intoxicants; (114 Am. St. Rep. 324, 325) on constitu- 
 tionality of local option laws. 
 Legislative journals as evidence of procedure. 
 
 Cited in Ritchie v. Richards, 14 Utah, 372, 47 Pac. 670, holding legislative 
 journals may be looked to in determining validity of enrolled act; Markham v. 
 Anamosa, 122 Iowa, 692, 98 N. W. 493, holding grade ordinance void, where 
 council records show adoption with others by single roll-call. 
 
 Cited in notes (11 L. R. A. 492) on printed legislative journals as evidence; 
 (23 L.R.A. 347) on conclusiveness of enrolled bill; (40 L.R.A. (X.S.) 25, 26) on 
 conclusiveness of enrolled bill. 
 Powers of territorial legislature. 
 
 Cited in Xixon v. Reid, 8 S. D. 513, 32 L. R. A. 319, 67 X. W. 57, holding 
 granting of ferry leases within province of territorial legislation. 
 Collateral attack on conviction nnder unconstitutional statute. 
 
 Cited in note (39 L. R. A. 456) on conviction for violating unconstitutional 
 statute or ordinance, as nullity subject to collateral attack. 
 
 3 L. R. A. 363, ELLIOT v. CHICAGO, M. & ST. P. R. CO. 5 Dak. 523, 41 
 N. W. 758. 
 
 Affirmed in 150 U. S. 245, 37 L. ed. 1068, 14 Sup. Ct. Rep. 85. 
 Contributory negligence of employee. 
 
 Cited in Dyerson v. Union P. R. Co. 74 Kan. 532, 7 L.R.A. (X.S.) 139, 87 Pac. 
 680, 11 A. & E. Ann. Cas. 207, holding that a railroad servant must exercise 
 due care to keep from being injured in crossing tracks or he will be guilty 
 of contributory negligence. 
 Tbe fellow servant doctrine. 
 
 Cited in Hardesty v. Largey Lumber Co. 34 Mont. 163, 86 Pac. 29, on the 
 liability of master for injury to servant by fellow servant, under the statutes. 
 Who are fellow servants. 
 
 Cited in Xorthern P. R. Co. v. Hogan, 63 Fed. 104, holding brakeman and con- 
 ductor fellow servants "in same general business;" Xorthern P. R. Co. v. Ham- 
 bly, 154 U. S. 361, 38 L. ed. 1014, 14 Sup. Ct. Rep. 983, holding day laborer em- 
 ployed on railroad culvert under section foreman, fellow servant witli conductor 
 
3 L.R.A. 363] L. R. A. CASES AS AUTHORITIES. 488 
 
 and engineer on passing train; Grattis v. Kansas City, P. & G. R. Co. 153 Mo. 
 406, 48 L. R. A. 408, 77 Am. St. Rep. 721. 55 S. W. 108, holding conductor and 
 engineer fellow servant with fireman as to their negligence; Ell v. Northern P. 
 R, Co. 1 N. D. 349, 12 L. R. A. 101, 26 Am. St. Rep. 621, 48 N. W. 225, holding 
 foreman with power to employ and discharge, fellow servant with employee ; 
 Atchison, T. & S. F. R. Co. v. Martin, 7 N. M. 169, 34 Pac. 536, holding section 
 foreman a fellow servant with conductor and engineer on work train. 
 
 Cited in footnotes to Fagundes v. Central P. R. Co. 3 L. R. A. 824, which holds 
 laborer removing snow from track, fellow servant of track walker and conductor; 
 Byrnes v. New York. L. E. & W. R. Co. 4 L. R. A. 151, which holds station agent 
 and brakeman fellow servants; St. Louis, I. M. & S. R. Co. v. Rice, 4 L. R. A. 
 173, which holds yard inspector and yard foreman fellow servants. 
 
 Cited in notes (5 L. R. A. 735) on who are fellow servants; (18 L. R. A. 796) 
 on what constitutes common employment; (50 L. R. A. 432, 433) on w r hat serv- 
 ants are deemed to be in same common employment, apart from statutes, where 
 no questions as to vice principalship arise; (51 L. R. A. 618) vice principalship 
 considered with reference to the superior rank of a negligent servant. 
 
 3 L. R. A. 368, MISSOURI P. R. CO. v. WORTHAM, 73 Tex. 25, 10 S. W. 741. 
 Carrier's duty to passenger 11 1 iu.h t int;. 
 
 Cited in Texas & P. R. Co. v. Miller, 79 Tex. 84, 11 L. R. A. 398, 23 Am. St, 
 Rep. 308, 15 S. W. 264, requiring such care of carrier at station while stopping 
 for passenger to alight, as persons of greatest care and prudence would use in 
 similar cases; St. Louis S. W. R. Co. v. McCullough. 18 Tex. Civ. App. 536, 45 
 S. W. 324, holding carrier only required to use such care toward passenger alight- 
 ing as prudent and competent persons would have used ; Texas & P. R. Co. v. Lee r 
 21 Tex. Civ. App. 176, 51 S. W. 351, holding carrier obligated to stop trains suf- 
 ficient time, and to property light platform, for alighting; McGovern v. In- 
 terburban R. Co. 136 Iowa, 20, 13 L.R.A. (N.S.) 480, 125 Am. St. Rep. 215, 111 
 N. W. 412, holding that a carrier is bound to furnish a passenger a safe place 
 to alight at his destination; Texas Midland R. Co. v. Frey, 25 Tex. Civ. App. 
 388, 61 S. W. 442, holding that it is the duty of the railway company to 
 provide and maintain a safe way of reaching and departing from its cars, 
 and they must be the safest known and tested; Great Falls & 0. D. R. Co. v. 
 Hill, 34 App. D. C. 312; Missouri, K. & T. R. C. v. Dunbar, 57 Tex. Civ. 
 App. 416, 122 S. W. 574; Missouri, K. & T. R. Co v. Dunbar, 49 Tex. Civ. 
 App. 15, 108 S. W. 500, holding a railroad company is charged with a high 
 degree of care in furnishing the safest appliances for use by passengers in 
 alighting; Gulf, C. & S. F. R. Co. v. Garner, 52 Tex. App. 391, 115 S. W. 273, 
 holding that it is not duty of railroad to use ordinary diligence to discover 
 sick and feeble condition of passenger and his inability to help himself; Hart 
 v. Seattle, R. & S. R. Co. 37 Wash. 427, 79 Pac. 954, holding that a railroad 
 company owes the passenger a duty to use reasonable care to keep its plat- 
 forms in safe condition; Illinois C. R. Co. v. Cruse, 123 Ky. 467, 8 L.R.A. 
 (N.S.) 302, 96 S. W. 821, 13 A. & E. Ann. Cas. 593, holding that a railroad com- 
 pany or its servants are not bound to assist passengers in alighting. 
 
 Cited in footnotes to De Kay v. Chicago, vM. & St. P. R. Co. 4 L. R. A. 632, 
 which holds that passenger leaving train at intermediate station assumes re- 
 sponsibility for his movements ; White v. Cincinnati, N. O. & T. P. R. Co. 7 L. 
 R. A. 44, which holds knowledge of unsafe condition of station platform not pre- 
 vent recovery. 
 
 Cited in notes (6 L. R. A. 193) on duty of railroad to kepp platforms and ap- 
 proaches in safe condition; (7 L. R. A. Ill) on duty of railroads to furnish safe 
 
489 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 370 
 
 stations and platforms for use of passengers; (8 L. R. A. 674) on carrier's duty 
 to usi> care for safety of passengers; (11 L. R. A. 367) on duty of carrier to 
 assist in landing passenger safely; (13 L. R. A. 95) on duty of railway conduct- 
 ors in stopping and starting trains; (20 L. R. A. 524) on measure of care which 
 carrier must exercise to keep its platforms and approaches safe. 
 
 3 L. R. A. 370, CLAFLIN v. CLAFLIN, 149 Mass. 19, 14 Am. St. Rep. 393, 20 
 
 N. E. 454. 
 Validity of deferring: payment of legacy. 
 
 Cited in Young v. Snow, 167 Mass. 289, 45 N. E. 686, and Brown v. Wright, 
 168 Mass. 510, 47 N. E. 413, holding testator's direction for maintaining residue 
 as trust fund valid and to be given effect; Rector v. Dalby, 98 Mo. App. 195, 71 
 S. W. 1078, holding that legatee having reached full age may compel payment of 
 vested legacy; Ballantine v. Ballantine, 152 Fed. 783, holding a testator could 
 postpone the payment of a legacy to a child to a definite period beyond the 
 majority of the legatee; Wagner v. Wagner, 244 111. 112, 91 N. E. 66, 18 
 Ann. Cas. 490, holding valid, bequest of stock in trust with power to trustee 
 to use stock for support of legatee or to terminate trust; Hoffman v. Xew 
 England Trust Co. 187 Mass. 207, 72 N. E. 952, holding a provision in a will de- 
 fering payment for two lives in being is valid; Dunn v. Dobson, 198 Mass. 
 146, 84 N. E. 327, holding restrictions placed on an equitable estate given by 
 testator, defering payments, were valid; Lathrop v. Merrill, 207 Mass. 9, 
 92 N. E. 1019, holding that testator cannot qualify bequest of absolute legal in- 
 terest in personal property by limitations against alienation; Lanius v. Fletcher, 
 
 100 Tex. 555, 101 S. W. 1076, holding a provision in a will requiring the 
 daughter's share to be held in trust and the interest paid to her during her 
 "husband's life, was valid. 
 
 Cited in note (25 Eng. Rul. Cas. 625) on invalidity of condition in will 
 inconsistent with, and repugnant to, previous gift. 
 Interest In legacy where payment deferred. 
 
 Cited in Wardwell v. Hale, 161 Mass. 399, 42 Am. St. Rep. 413, 37 X. E. 196, 
 liolding that legacy payable when legatee reaches specified age vests at testator's 
 death; Wemyss v. White, 159 Mass. 485, 34 N. E. 718, denying beneficiary's abso- 
 lute right to income where trustee may at his discretion discontinue at any time, 
 and apply in best way for beneficiary's support and maintenance; Danahy v. 
 Xoonan, 176 Mass. 468, 57 N. E. 679, holding active trust requiring exercise of 
 trustee's discretion not to be terminated at will of cestui que trust; Holmes 
 v. Holmes. 194 Mass. 557, 80 N. E. 614, holding that where a soji was to re- 
 ceive two thirds of one third of the estate every five year?, he became an 
 absolute owner of the one third at the expiration of the five years, where 
 widow waived provisions of will. 
 
 Distinguished in Parker v. Cobe, 208 Mass. 263, 33 L.R.A. (X.S.) 981, 94 X. 
 E. 476, 21 Ann. Cas. 1100, holding that bequest of money to be used \n pur- 
 chase of annuity gives legatee right to money and he can insist that annuity 
 shall not be bought. 
 Termination of trust. 
 
 Cited in Bronson v. Thompson, 77 Conn. 217, 58 Atl. 692. on the termina- 
 tion of a trust fund: Wayman v. Tollansbee.. 253 111. 615, 98 X. E. 21, holding 
 that trust will end with accomplishment of its purpose; Kimball v. Blanchard, 
 
 101 Me. 390, 64 Atl. 645, holding that the termination of a mere passive trust 
 will not be decreed unless all the parties are willing that it should and they are 
 aui juris. 
 
3 L.R.A. 370] L. R. A. CASES AS AUTHORITIES. 490 
 
 Distinguished in Welch v. Episcopal Theological School, 189 Mass. 109, 75 
 X. E. 139, holding that the court has power to terminate a trust in a proper 
 case. 
 Giving- effect to testator's intention. 
 
 Cited in Stier v. Nashville Trust Co. 85 C. C. A. 422, 158 Fed. 602, holding . 
 that the intentions of a testator should be carried out in respect to restrictions 
 and limitations provided he does not contravene public policy. 
 
 3 L. R. A. 372, STATE v. DALRYMPLE, 70 Md. 294, 17 Atl. 82. 
 Snccesslon tax and validity of same. 
 
 Cited in State v. Hamlin, 86 Me. 499, 25 L. R. A. 634, 41 Am. St. Rep. 569, 30 
 Atl. 76, holding collateral inheritance tax valid as against objection of unequal 
 taxation or invasion of property right to transmit at death or uniformity; Re 
 Wilmerding, 117 Cal. 284, 49 Pac. 181, holding collateral inheritance tax not in 
 valid because inheritances by children of deceased brothers and sisters are taxed 
 while inheritances by such brothers or sisters themselves are exempt, nor be- 
 cause estates below $500 in value are exempt; Gelsthorpe v. Furnell, 20 Mont. 
 304, 39 L. R. A. 173, 51 Pac. 267; Minot v. Winthrop, 162 Mass. 119, 26 L. R. A. 
 262, 38 X. E. 512; Callahan v. Woodbridge, 171 Mass. 597, 51 X. E. 176, hold- 
 ing reasonable excise tax on transmission of decedents' property valid as not vio- 
 lative of property right; State v. Alston, 94 Tenn. 680, 28 L. R. A. 180, 30 S. W. 
 750, holding tax on privilege of receiving decedents' property valid as not upon 
 property or right of alienation; Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 
 288, 42 L. ed. 1041, 18 Sup. Ct. Rep. 594, holding graded collateral-inheritance 
 tax upon classified legacies to blood strangers valid as not unequal within 14th 
 Amendment; Union Trust Co. v. Wayne Probate Judge, 125 Mich. 492. 84 X. YV. 
 1101, holding inheritance tax valid as to uniformity of taxation clause; United 
 States v. Perkins, 163 U. S. 628, 41 L. ed. 288, 16 Sup. Ct. Rep. 1073, holding in- 
 heritance tax upon legacy to United States by state law not invalid as attempt 
 to tax property of United States; Plummer v. Coler, 178 U. S. 131, 44 L. ed. 1006, 
 20 Sup. Ct. Rep. 829, holding legacy of United States bonds not exempt from 
 state collateral inheritance taxation; Knowlton v. Moore, 178 U. S. 55. 44 L. ed. 
 975, 20 Sup. Ct. Rep. 747, 9 Pa. Dist. R. 308, holding United States tax on 
 legacies and distributive shares valid as uniform excise; Black v. State. 113 Wis. 
 223, 90 Am. St. Rep. 853, 89 X. W. 522, holding inheritance tax upon estates of 
 specified value, while those of less value exempt, invalid for arbitrary discrim- 
 ination between beneficiaries of same class; Dixon v. Ricketts, 26 Utah, 225. 72 
 Pac. 947; State v. Clark, 30 Wash. 446, 71 Pac. 20, sustaining validity of in- 
 heritance tax; Re Macky.. 46 Colo. 82, 23 L.R.A. (X.S.) 1212, 102 Pac. 1075, 
 holding a tax on interest in real property whether passing by will or by laws 
 of descent, is a succession tax; Booth v. Com. 130 Ky. 101, 33 L.R.A. (N.S.) 604, 
 113 S. W. 61, holding an inheritance tax is not a tax on property required to 
 be uniform on all property, under the constitution; Fisher v. State, 106 Md. 
 119, 66 Atl. 661, on the validity of the inheritance tax, and its application; 
 Re Stixrud, 58 Wash. 350, 33 L.R.A. (X.S.) 637, 109 Pac. 343, Ann. Cas. 1912 A.. 
 850, holding that inheritance tax law discriminating against alien relatives vio- 
 lated treaty. 
 
 Cited in notes (4 L.R.A. 171) on succession or inheritance tax not a tax on 
 property; (9 L.R.A. (X.S.) 123) on nature of right to take by will or in- 
 heritance; (33 L.R.A.(X.S.) 610) on nature of inheritance tax; (127 Am. St. 
 Rep. 1048, 1090, 1096) on inheritance taxation; (33 L.R.A.(X.S.) 594, 602; 
 41 Am. St. Rep. 580, 582, 583; 23 Eng. Rul. Cas. 105) on validity of inherit- 
 ance taxes. 
 
491 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 376 
 
 Property within state. 
 
 Cited in Callahan v. Woodbridge, 171 Mass. 598, 51 X. E. 176, holding cash 
 and bonds of foreign company transferable by delivery, and located within state 
 subject to collateral inheritance tax; Re Romaine, 127 X. Y. 87, 12 L. R. A. 408, 
 11 X. E. 759, holding nonresident's personalty invested or habitually kept within 
 state subject to collateral inheritance tax on nonresident decedent's property 
 within state; Small's Estate, 11 Pa. Co. Ct. 6, 30 W. X. C. 522, holding nonresi- 
 dent's interest in limited partnership, organized and operating in state, subject 
 to collateral inheritance tax on property within state; Ruckgaber v. Moore, 104 
 Fed. 951, holding personalty of nonresident alien not within United States in- 
 heritance tax on such property as would pass under state intestate laws; Eidman 
 v. Martinez, 184 U. S. 588, 46 L. ed. 703, 22 Sup. Ct. Rep. 515, holding American 
 securities passing by will of nonresident alien and intestate laws of Spain not 
 within United States inheritance tax on personalty passing by will or by in- 
 testate laws of any state or territory; Re Bronson, 150 X. Y. 17, 34 L. R. A. 244, 
 44 X. E. 707 (dissenting opinion), majority holding foreign-held capital stock 
 of domestic corporation within inheritance tax upon nonresident decedent's prop- 
 erty within state: Mann v. Carter, 74 X. H. 353, 15 L.R.A.(N.S.) 156, 68 
 Atl. 130, holding deposits in a foreign savings bank made by a resident of 
 the state are property within the state, so as to be subject to inheritance tax ; 
 Xeilson v. Russell, 76 X. J. L. 35, 69 Atl. 476, holding stock in a domestic 
 corporation is property within the state so as to be subject to inheritance tax, 
 although held by a non-resident at the place of his domicile; Fidelity & D. Co. 
 v. C'renshaw, 120 Tenn. 616, 110 S. W. 1017, on the application of the succes- 
 sion tax outside of state. 
 
 Cited in footnote to Re Swift's, 18 L. R. A. 709, as to what is subject to suc- 
 cession tax. 
 
 Distinguished in Weaver v. State, 110 Iowa, 331, 81 X. W. 603. holding cattle 
 or proceeds thereof, in foreign state, not subject to collateral inheritance tax as 
 within jurisdiction of state: Xeilson v. Russell, 76 X. J. L. 658, 19 L.R.A.(X.S.) 
 891, 131 Am. St. Rep. 673, 71 Atl. 286, holding stock in a Xew Jersey corpora- 
 tion belonging to a testator domiciled in England is not subject to inherit- 
 ance tax in Xew Jersey. 
 
 3 L. R. A. 376, BRIDGERS v. TAYLOR, 102 X. C. 86, 8 S. E. 893. 
 Adopted construction of statutes. 
 
 Cited in Harper v. Pinkston. 112 X. C. 301, 17 S. E. 161, holding in concurring 
 opinion Code provisions presumed enacted with knowledge, if not approval, of 
 prior construction where previously in force; Redmond v. Tarboro, 106 X. C. 135, 
 7 L. R. A. 543, 10 S. E. 845, holding this rule not absolutely binding, but valuable 
 aid to construction; Lewis v. State, 58 Tex. Crim. Rep. 362, 127 S. W. 808, 
 21 Ann. Cas. 656. holding rule that construction of statute will be considered 
 to have sanction of legislature on re-enactment, applicable to local option law. 
 
 Cited in footnote to Wolf v. Youbert, 21 L. R. A. 772, which requires applica- 
 tion, in construing adopted statute, of construction of courts of state from which 
 adopted. 
 Inclusion of "property." 
 
 Cited as changed by statute in Durham Fertilizer Co. v. Little, 118 X. C. 
 818, 24 S. E. 664, holding debtor subject to arrest for fraudulent conveyance of 
 realty, under X. C. Code, 3765 (6). 
 
 Cited in Hayne v. Woolley, 180 Fed. 575, on the word, property, in a statute 
 as including both real and personal. 
 
3 L.R.A. 378] ( L. R. A. CASES AS AUTHORITIES. 492 
 
 3 L. R, A. 378, TEX EYCK v. POXTIAC, 0. & P. A. R, CO. 74 Mich. 226, 16 
 Am. St. Rep. 633., 41 N. W. 905. 
 
 Creditor's bill to set aside subsequent foreclosure and assess stock, dismissed 
 in 114 Mich. 496, 72 N. W. 362. 
 Parol evidence of resolution. 
 
 Cited in Ludington Water-Supply Co. v. Ludington, 119 Mich. 487, 78 N. W. 
 558, in statement that competency of parol proof of adoption of resolution by 
 common council not for determination; Zalesky v. Iowa State Ins. Co. 102 Iowa, 
 515, 70 N. W. 187, holding parol evidence of directors' proceedings admissible, 
 if no record made; Cowley v. School Dist. Xo. 3, 130 Mich. 637, 90 X. W. 680, 
 denying admissibility of parol contradiction of records to show teacher's contract 
 authorized; Lipsett v. Hassard, 158 Mich. 511, 122 N. W. 1091, holding parol 
 evidence of what was said by stockholders at the meeting is inadmissible tu 
 explain an unambiguous resolution. 
 Loans from and compensation of corporate director. 
 
 Cited, in Jones v. Hale, 32 Or. 473, 52 Pac. 311, upholding director's right to 
 recover from solvent corporation on mortgage given to him in good faith; Huf- 
 faker v. Krieger, 107 Ky. 205, 46 L. R. A. 386, footnote, p. 384, 53 S. W. 283. 
 which holds directors entitled to compensation for extraordinary services per- 
 formed without contract, by which company saved from bankruptcy; Pfeiffer v. 
 Lansberg Brake Co. 44 Mo. App. 66, holding director of corporation not entitled 
 to compensation as secretary without express prearrangement ; West Point 
 Teleph. & Teleg. Co. v. Rose, 76 Miss. 65, 23 So. 629, discussing without deciding, 
 corporate liability in quantum meruit for essential services by promoter and sec- 
 retary; Brown v. Republican Mountain Silver Mines, 17 Colo. 425, 16 L. R. A. 428. 
 footnote, p. 426, 30 Pac. 66, which requires special provision for compensation for 
 services as director; Dunlap v. Montana-Tonopah Min. Co. 192 Fed. 716, hold- 
 ing that director can recover for services in settling accident cases and securing 
 reduction of taxes; Hanna v. Chalker, 136 Mich. 11, 98 X. W. 732, holding a 
 contract with a member of board of county supervisors to employ one of its 
 members to transcribe the records in the county register of deeds office was 
 valid, as not inconsistent with his duties; Henry v. Michigan Sanitarium & 
 Benev. Asso. 147 Mich. 145, 110 N. W. 523, holding that a trustee of an 
 ordinary corporation is not precluded from contracting with the board to per- 
 form services for which he is not to be paid; Barnes v. Spencer & B. Co. 162 
 Mich. 522, 139 Am. St. Rep. 587, 127 X. W. 752, holding valid, corporate note 
 executed by president to himself for timber fairly sold to company : McConnell 
 v. Combination Min. & Mill. Co. 30 Mont. 259, 104 Am. St. Rep. 703, 76 Pac. 
 194, holding that in the absence of power emanating from the stockholders, 
 from statute, or from by-law, the directors have no authority to vote themselves a 
 salary and citing annotation also on this point. 
 
 Cited in footnotes to Eaton v. Robinson, 29 L. R. A. 100, which requires officers 
 to account for salaries voted for and paid to deprive stockholders of rights ; 
 Bassett v. Fairchild, 52 L. R. A. 611, which sustains director's right without di- 
 rect contract, to compensation for services not connected with office. 
 
 Cited in notes in (34 L.R.A. (X.S.) 134) on obligation of public corporation 
 to pay for services under contract in which officer personally interested; (17 
 Am. St. Rep. 301) on transaction between corporation and director; (136 Am. 
 St. Rep. 923; 7 Eng. Rul. Cas. 611, 612, 613) on service by. and remuneration 
 of, directors of corporation. 
 
 Distinguished in Burns v. Commencement Bay Land & Improv. Co. 4 Wash. 
 567, 30 Pac. 668, denying right to recover from corporation for regular services 
 
493 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 385 
 
 as trustee without authority in articles, by-laws, or other source than trustees 
 
 themselves. 
 
 Constitutional law. 
 
 Cited in Warner v. Auditor General, 129 Mich. 654, 89 X. W. 591, holding act 
 giving salaried officers compensation for acting as auditors void. 
 i:r<>i>i-l to complain att stockholder** of act ait director*. 
 
 Cited in Ten Eyck v. Pontiac, O. & P. A. R. Co. 114 Mich. 500, 72 N. W. 362, 
 holding corporation's creditor participating as director in issuance of "full paid" 
 stock cannot assert fraud upon creditors. 
 
 Cited in note (11 Eng. Rul. Cas. 73) on extent of estoppel of corporation 
 by deed. 
 Vote by majority of quorum. 
 
 Cited in Smith v. State, 64 Kan. 733, 68 Pac. 641, holding vote by majority of 
 quorum to confess judgment valid. 
 
 3 L. R, A. 381, THOMAS v. HARTSHORNE, 45 N. J. Eq. 215, 16 Atl. 916. 
 
 3 L. R. A. 383, ROBINSON v. HUGHES, 117 Ind. 293, 10 Am. St. Rep. 45, 20 
 
 N. E. 220. 
 Statutory exemptions. 
 
 Cited in Chatten v. Snider, 126 Ind. 390, 26 N. E. 166, holding exemption under 
 original execution not preventive of one under alias execution under statute pro- 
 viding that such property "shall not be liable;" Moss v. Jenkins, 146 Ind. 594 r 
 45 N. E. 789. holding exemption waived by failure to claim before sale, under 
 statute requiring debtor to make schedule before receiving exemption; Noyes v, 
 fielding, 5 S. D. 619, 59 N. W. 1069, holding reasonable time must be allowed 
 wife to claim exemption after husband's failure to demand it, in absence of stat- 
 utory limit; Stout v. Price, 24 Ind. App. 368, 56 N. E. 857, upholding debtor's- 
 right to claim exemption at any time before execution sale; Broeker v. Morris, 
 42 Ind. App. 421, 85 N. E. 982, holding in the absence of sufficient excuse house- 
 holder must claim statutory exemption before sale is made. 
 
 Cited in footnotes to Equitable Life Assur. Soc. v. Goode, 35 L. R. A. 690, which 
 holds law library of attorney occupying part of time in legal business exempt; 
 Consolidated Tank Line Co. v. Hunt, 12 L. R. A. 476, which holds oil deliverer's 
 team exempt. 
 
 Distinguished in State ex rel. Miller v. Day, 3 Ind. App. 159, 29 N. E. 436, 
 holding no exemption from levy upon personalty received upon dissolution of 
 partnership subsequent to issuance of execution on judgment against firm; Miller 
 v. Swhier, 40 Ind. App. 469, 79 N. E. 1092, holding that a non-resident who 
 makes an assignment for the benefit of creditors, is not entitled to the house- 
 holder's exemption, though he becomes a resident before the property is ap- 
 praised. 
 
 3 L. R. A. 385, CLEVELAND ROLLING MILL CO v. CORRIGAN, 46 Ohio St. 
 
 283, 15 Am. St. Rep. 596, 20 N. E. 466. 
 Effect of omission of further instruction. 
 
 Cited in Columbus R. Co. v. Ritter, 67 Ohio St. 63, 65 N. E. 613, holding no 
 error upon general exception to unobjectionable instruction, for failure to fur- 
 ther instruct, under statute making such objection reach all errors "in" charge. 
 Care required on part of children. 
 
 Cited in Smith v. Pittsburgh & W. R. Co. 90 Fed. 790, and Hepfel v. St. Paul, 
 M. & M. R. Co. 49 Minn. 267, 51 N. W. 1049, holding child bound to use such 
 
3 L.R.A. 385} L. R. A. CASES AS AUTHORITIES. 494 
 
 care as might be reasonably expected of child of his age and intelligence, in view 
 of the circumstances; Cincinnati Street R. Co. v. Wright, 54 Ohio St. 192. 32 
 L. R. A. 343, 43 X. E. 688, Affirming 9 Ohio C. C. 511, holding boy bound to no 
 higher care than other boys of similar age and circumstances, without proof of 
 special intelligence; Weldon v. Philadelphia, W. & B. R. Co. 2 Penn. (Del.) 13, 
 43 Atl. 156, holding general rule to be modified according to individual ma- 
 turity and capacity and familiarity with conditions; Cleveland Terminal & Val- 
 ley R. Co. v. Heiman, 16 Ohio C. C. 493, holding bright boy of twelve guilty cf 
 contributory negligence in playing on railroad, totally indifferent to dangerous 
 surroundings; Foy v. Toledo Consol. Street R. Co. 10 Ohio C. C. 156, holding 
 that lad of twelve years, accustomed to street cars, may be found guilty of con- 
 tributory negligence; Consolidated Street R. Co. v. Maier, 9 Ohio C. C. 271. 
 holding in action for personal injuries, that allegation that plaintiff was fifteen, 
 and not of sufficient age and experience to do work assigend, insufficient allega 
 tion of ignorance or incapacity; Lake Erie & W. R. Co. v. Mickey, 53 Ohio St. 
 383, 29 L. R. A. 760, 53 Am. St. Rep. 640, 41 N. E. 980, holding averment that 
 plaintiff is aged nine years and of immature experience and judgment sufficiently 
 rebuts legal presumption of contributory negligence; New Albany Forge & Roll- 
 ing Mill v. Cooper, 131 Ind. 366, 30 N. E. 294, holding contributory negligence 
 not inferable from averment of injury to infant, alleged to be ignorant and un- 
 informed of danger from hot slag; Frank Unnewehr Co. v. Standard Life & 
 Acci. Ins. Co. 99 C. C. A. 490, 176 Fed. 21, on the degree of care required to 
 be exercised by a child; Lynchburg Cotton Mills v. Stanley, 102 Va. 596, 46 
 S. E. 908, on the presumption that child is not guilty of contributory negli- 
 gence; Ray v. Chesapeake & O. R. Co. 57 W. Va. 340, 50 S. E. 413, referred 
 to as erroneously read to jury because it states clashing lines of authorities, 
 with regard to care required of children ; Miller v. Cincinnati Traction Co. 5 
 Ohio N. P. N. S. 493, 18 Ohio S. & C. P. Dec. 472, holding question of con- 
 tributory negligence of child to be for the jury; Breckenridge Co. v. Reagan. 
 22 Ohio C. C. 81, 12 Ohio C. D. 56; K. D. Box & Label Co. v. Caine, 11 Ohio 
 C. C. N. S. 84, 30 Ohio C. C. 514; Rohrer v. Culbertson, 3 Ohio N. P. N. S. 199. 
 16 Ohio S. & C. P. Dec. 100, on rule of contributory negligence and ass,uinp- 
 tion of risk as being less stringent in case of minors: Ginn v. Myrick, 3 Ohio 
 X. P. N. S. 450, 16 Ohio S. & C. P. Dec. 560, holding finding that plaintiff was 
 without fault not necessary in action for personal injury where petition alleged 
 that plaintiff was an immature person. 
 
 Cited in footnote to Gleason v. Smith, 55 L. R. A. 622, which denies liability 
 for injury by collision with team, to twelve-year-old boy using street as play- 
 ground. 
 
 Cited in notes (12 L.R.A. 217) on contributory negligence of infant of tender 
 age; (17 L.R.A. 79) on contributory negligence of child as question of fact. 
 Imputed negligence. 
 
 Cited in footnote to Casey v. Smith, 9 L. R. A. 259, which holds negligence of 
 -custodian imputable to young child. 
 
 Cited in notes (6 L. R. A. 143) on imputed negligence; (6 L. R. A. 545) on doc- 
 trine of contributory negligence of parent or guardian imputed to child; (17 L. 
 H. A. 79) on imputation to child of parent's negligence. 
 It iiih t of action for injuries or death. 
 
 Cited in footnote to Illinois C. R. Co. v. Slater, 6 L. R. A. 418, which author- 
 izes allowance to infant for loss by injury, of earnings during minority. 
 
 Cited in notes (5 L. R. A. 172) on actions for damages for death caused by 
 -negligence; (6 L. R. A. 537) on suit by infant for negligent injury; (7 L. R. A. 
 
495 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 390 
 
 154, 4 L. R. A. 261) on liability for death caused by negligence; (5 L. R. A. 340) 
 
 on the law of the land. 
 
 Care required toward children or employees. 
 
 Cited in Herdman-Harrison Milling Co. v. Spehr, 46 111. App. 31, holding that 
 employer must supplement employee's lack of requisite capacity by reason of 
 youth, by instructions and safeguards sufficient to enable him to avoid patent 
 danger by ordinary care; Fitzgerald v. Alma Furniture Co. 131 N. C. 640, 42 S. 
 E. 940, holding evidence of employee's youth, inexperience, and ignorance of na- 
 ture and dangers of work, and of employer's failure to instruct, may be submitted 
 in action for personal injuries; Becker v. Cincinnati Street R. Co. 1 Ohio X. P. 
 360, holding permitting children to play in yard from which they could get into 
 street not proximate cause in law for subsequent accident in street; (8 L. R. A. 
 490, 491) on relations of master and minor employees; (8 L. R. A. 843, 844) on 
 care to be exercised toward children to avoid injuries; (41 L. R. A. 39) on knowl- 
 edge as element of an employer's liability to injured servant; (44 L. R. A. 61, 63, 
 72) on duty of master to instruct and warn his servants as to perils of the 
 employment; Daniels v. Johnson, 39 Colo. 186, 89 Pac. 811, holding that the 
 degree of care due to a minor servant depends on his age, intelligence and 
 experience; Beck v. Standard Cotton Mills, 1 Ga. App. 280, 57 S. E. 998, hold- 
 ing that the master is held to a higher degree of care toward a child than to 
 adults, and citing annotation also on this point; Vanesler v. Moser Cigar 
 & Paper Box Co. 308 Mo. App. 629, 84 S. W. 201, holding that the master 
 must show the child the dangers of the machine, when he is set to work upon 
 it; Breckenridge Co. v. Reagan, 22 Ohio C. C. 80, 12 Ohio C. D. 56, holding 
 it to be the duty of master employing minors, to give instructions to enable 
 them to avoid injury; Vetter v. Cincinnati Traction Co. 13 Ohio C. C. X. S. 36, 
 51 Ohio C. C. 537, on definition of ordinary care by railway toward child of 
 four years at crossing. 
 
 Cited in notes (49 Am. St. Rep. 408) on negligence in dealing with chil- 
 dren; (24 Am. St. Rep. 323; 44 L.R.A. 61, 63, 72) on duty of master to in- 
 struct and warn servants as to perils of employment. 
 
 Distinguished in Hinds v. E. P. Breckenridge Co. 16 Ohio C. C. 17, denying lia- 
 bility to trespassing child for negligent injury. 
 > <-jii iiieii t killing' in another state. 
 
 Cited in footnote to O'Reilly v. New York & N. E. R. Co. 6 L. R. A. 719, which 
 holds action maintainable for negligent killing in another state, where action 
 survived by the statutes of both states. 
 Knowledge as element of employer's liability. 
 
 Cited in note (41 L.R.A. 39) on knowledge as element of employer's liability 
 to injured servant. 
 
 3 L. R. A. 390, SANDERS v. ST. LOUIS & N. O. ANCHOR LINE, 97 Mo. 26, 10 
 
 S. W. 595. 
 Construction of re-enacted provisions. 
 
 Cited in Ex parte Durbin, 102 Mo. 103, 14 S. W. 821, holding that prior con- 
 struction of statute is part of subsequent re-enactment in same words; State v. 
 Hope, 100 Mo. 353, 8 L. R. A. 610, 13 S. W. 490, holding statute extending law 
 as to witnesses in civil cases to criminal cases re-enacted with reference to rule 
 against general objections to evidence; State v. Hamey, 168 Mo. 195, 57 L. R. A. 
 855, 67 S. W. 620, holding adoption of new constitution preserving rights of jury 
 trial as heretofore enjoyed not inclusive of statutory right of jury assessment of 
 alternative punishment; Gillespie v. State, 168 Ind. 311, 80 N. E. 829, hold- 
 
3 T R A 390] L. R- A. CASES AS AUTHORITIES. 496 
 
 ing that where legislature adopts or re-enacts a statute after it has been 
 construed by the highest court of the state, it is presumed to have adopted 
 that construction. 
 
 Cited in footnote to Maynard v. First Representative District, 11 L. R- A. 332. 
 which holds Constitution to be interpreted in light of its own history. 
 
 Cited in notes (5 LJLA. 668) on construction of adopted statute as part 
 thereof; (10 Jan. St. Rep. 53) on construction of re-enacted statutes. 
 Jridi-fioB ftertte river. 
 
 Cited in State v. Metealf. 65 lib. App. 686, holding county court has jurisdiction 
 of offense beyond middle of boundary river, under ^naMing act; Cooley v. Golden, 
 
 52 Mo. App. 235, holding jurisdiction extends only to interstate boundary line 
 when river abandons channel; Wedding v. Meyler, 192 I - 4 L. ed. ' " M 
 Sup. CL Rep- 322, Reversing 107 Ky. 701, 60 S. W. 20, holding jurisdiction 
 acquired under Virginia compact, by Indiana court by service of process on Ohio 
 river on Kentucky side of low-water mark; Cook v. State, 81 Miss. 150, 32 So. 312, 
 holding that thread of Mississippi marks territorial jurisdiction of state courts 
 over violations of liquor law; State v. Fandre, 54 W. Va. 131, 63 LJELA. SSI - 
 EL 269, holding that Ohio may fix charges for ferriage from its side of river to 
 West Virginia; Wedding v. Meyler, 192 U. S. 584, 48 L. ed. 575, 66 LJLA. 840, 
 24 Sup. Ct. Rep. 372, holding an Indian^ court acquired jurisdiction by service 
 of a summons on the Ohio River on the Kentucky side of the low water mark 
 on the Indiana shore; Lemore v. Com. 127 Ky. 486, 105 S. W. 930, on the con- 
 current jurisdiction of Missouri and Kentucky over the Mississippi River in 
 regard to violation of liquor laws; State v. Seagraves, 111 Mo. App. 356. 85 
 S. W. 925, holding that a state could punish for an illegal sale of liquor made 
 on a boundary river on the opposite side; Nielsen v. Oregon, 212 U. S. 319, 
 
 53 L. ed. 529, 29 Sup. CL Rep. 383, Reversing 51 Ore. 593, 131 Am. St. Rep. 
 765, 95 Pa*. 720, 16 A. & EL Ann. Cas. 1113, holding state of Oregon can not 
 regulate fishing on Columbia, river, beyond the territorial limits; Columbia 
 River Packers' Asso. v. McGowan, 172 Fed. 996, on power to regulate fishing 
 on boundary rivers; State v. Faudre, 54 W. Va. 131, 63 L.RJL 877, 102 Am. 
 St. Rep. 927, 46 S. EL 269, 1 A. 4 EL Ann. Cas. 104, on the exclusiveness of 
 jurisdiction by priority of exercise in cases of concurrent jurisdiction. 
 
 Cited in note in (65 LJLA. 964. 967) on jurisdiction over boundary rivers. 
 What to jmri*4ic4i*B. 
 
 Cited in note (11 Am. St. Rep. 821) on what Is jurisdiction. 
 
 3 L. R. A. 392, Kf ATKDfSOX, 16 R. L 413, 27 Am. SIL Rep. 745, 16 AtJ. \ I 
 
 Cited in note (15 L. R. A. 76) on power to revoke or set aside voluntary trust 
 or settlement. 
 OMTJM f trm*t- 
 
 Cited in Peoples Sav. Rank v. Webb, 21 R. L 220. 42 AtL 874, holding trust not 
 created by deposit in bank in the name of depositor as trustee for infar 
 only intended to constitute trust in case of death; Tygard v. McComb, 54 Mo. 
 App. 92, holding deposit to credit of minor daughters, intended to be depositor's 
 during life but to pass upon his death, no gift; Grieves v. Keane, 23 R. L 137, 
 49 Ail. 501. holding trust created by placing money in bands of party for third 
 person; Merigan v. MeGonigie. 205 Pa. 327, 54 AtL 994. sustaining niece's right to 
 money deposited in bank "in trust 9 ' for her, although pass book never delivered: 
 Talbot v. Talbot, 32 R. L 90, 78 AtL 535, holding trust created where testator 
 deed conveying to trustees unendorsed certificates of stock and delivered 
 
497 L - R - A- CASES AS AUTHORITIES. [3 L.R.A. 394 
 
 said deed to one of the trustees; Watson v. Payne, 143 Mo. App. 728, 128 S. W. 
 238, holding a trust created in personal property where party agrees to sell 
 real property and do a certain thing with money and does sell land; Gobeille v. 
 Allison, 30 R. I. 529, 76 Atl. 354, holding a trust created where money is deposited 
 in trust and bank book delivered. 
 
 Cited in notes (4 L. R. A. 328) on recovery back of special deposit; (5 L. R. A. 
 72) on essentials to gift; (19 L. R. A. 700) on delivery of bank book to sustain 
 gift of money in bank; (32 L. R. A. 374) on what sufficient to show trust in 
 money deposited; (1 L.R.A. (N.S.) 792) on bank deposit for other person as gift 
 or transfer of title; (34 Am. St. Rep. 222, 223) on voluntary trusts arising from 
 declarations of trustor. 
 
 3 L. R. A. 394, STATE v. COLLINS, 16 R. I. 371, 17 Atl. 131. 
 
 Ui-ii ii !:i I i ii _ bicycle riiliii... 
 
 Citing in Holland v. Bartch, 120 Ind. 50, 16 Am. St. Rep. 307, 22 X. E. 83, 
 holding bicyclist has same rights as driver of vehicle in street; Geiger v. Per- 
 kiomen & R. Turnp. Road, 28 L. R, A. 460. 4 Pa. Dist. R. 113, holding that tolls 
 might be collected from riders of bicycles (Reversed in supreme court) ; Swift v. 
 Topeka, 43 Kan. 673, 8 L. R. A. 774, 23 Pac. 1075, holding that act forbidding bi- 
 cyclists to use public bridge meant part devoted to pedestrians; Richarson v. 
 Danvers, 176 Mass. 414, 50 L. R. A. 127 r 79 Am. St. Rep. 320, 57 N. E. 688, holding 
 term "carriage" in statute does not include bicycle; North Chicago Street R. Co. 
 T. Cossar, 203 111. 614, 68 N. E. 88. denying damages for injuries from collision 
 with street car, resulting from careless riding of bicycle. 
 
 Cited in notes (47 L.R.A. 293) on bicyclists entitled to benefits and subject to 
 burdens of rules of the road: (48 Am. St. Rep. 377, 378) on bicycle as vehicle. 
 
 Distinguished in Fox v. Clarke, 25 R. I. 516. 65 L.R.A. 235, 57 Atl. 505. 1 A. 
 & E. Ann. Cas. 548, holding a bicycle not a carriage within a statute having ref- 
 erence to the duty of keeping a highway safe. 
 
 3 L. R. A. 394, MILLS v. DAVIS, 113 N. Y. 243, 21 N. E. 68. 
 \Vhen statute of limitations bars action. 
 
 Cited in Knapp v. Greene, 79 Hun. 266, 29 N. Y. Supp. 350, holding statute of 
 limitations runs against note payable on demand "after three months' notice" 
 from date: Harden v. Dixon, 77 App. Div. 244. 78 N. Y. Supp. 1061 (dissenting 
 opinion), majority holding that statute begins to run day after date of note pay- 
 able "on demand after date;" Brooklyn Bank v. Barnaby, 197 N. Y. 227, 27 
 L.R.A. (N.S. ) 852, 90 N. E. 834. on commencement of limitations on demand note. 
 
 Cited in note (25 Am. St. Rep. 830) as to when limitations begin to run on 
 demand note. 
 
 Distinguished in Oaks v. Taylor, 30 App. Div. 179, 51 N. Y. Supp. 775, holding 
 statute of limitations does not run from date of contract, against conditional 
 promise to buy back stock. 
 Evidence of part payment. 
 
 Cited in Purdy v. Purdy, 47 App. Div. 96, 62^N. Y. Supp. 153. holding indorse- 
 ment of part payment by payee on note must be proved to have been before bar 
 of -tatute; Wellman v. Miner, 179 111. 334, 53 N. E. 609, holding corroborating 
 evidence of indorsement of part payment sufficient to take it out of statnt.-; 
 Schlotfeldt v. Bull, 18 Wash. 67, 50 Pac. 590. holding mere indorsement of part 
 payment without corroborative proof not admissible: Harding v. Grim, 25 Or. 510. 
 36 Pac. 634, holding indorsement of part payment, made after bar of statute, 
 inadmissible; Bouton v. Hill, 4 App. Div. 255. 38 N. Y. Supp. 498, holding in- 
 dorsement of difference between face of note and amount due to be part payment, 
 L.R.A. Au. Vol. I. 32. 
 
3 L.R.A. 394] L. R. A. CASES AS AUTHORITIES. 498 
 
 taking note out of statute of limitations; Re Hearman, 1 Power. 30. 45 X. Y. S. 
 R. 179, 19 X. Y. Supp. 539, holding indorsement of principal or interest on note 
 must be proved to have been made before statute runs; Decker v. Zeluff, 23 App. 
 Div. Ill, 48 N. Y. Supp. 384, holding delivery of plants, proceeds to be credited 
 on bond, part payment; Re Salisbury, 41 Misc. 278, 84 X. Y. Supp. 215, holding 
 unsigned indorsements on note after it had outlawed inadmissible; Ward v. Hoag, 
 78 App. Div. 511, 79 X. Y. Supp. 706, holding evidence of indorsements made on 
 note before it outlawed admissible in action on note to which statute pleaded: 
 Van Xame v. Barber, 115 App. Div. 596, 100 N. Y. Supp. 987, holding books of 
 accounts admissible to show a part payment where made within six year limita- 
 tion. 
 Evidence of personal transactions frith deceased. 
 
 Cited in Kroh v. Heins, 48 Xeb. 696, 67 X. W. 771, holding party with direct 
 interest cannot testify against representatives of deceased concerning personal 
 transaction; Van Vechten v. Van Vechten, 65 Hun. 223, 20 X. Y. Supp. 140, hold- 
 ing indorsement on note by deceased inadmissible as a personal transaction. 
 
 3 L. R. A. 397, McKEXSEY v. EDWARDS, 88 Ky. 272, 21 Am. St. Rep. 339, 10 S. 
 
 W. 815. 
 Corporations; form of contracts. 
 
 Cited in Garrett v. Belmont Land Co. 94 Tenn. 472, 29 S. W. 726, holding deed 
 containing no recital of authority for execution, signed by one describing himself 
 as president of corporation, but without corporate seal, and acknowledged by him 
 individually, not deed of corporation. 
 
 Cited in footnote to Reeve v. First Xat. Bank, 16 L. R. A. 143, which holds note 
 signed with individual name, with designation of official position in corporation, 
 is prima facie individual obligation, but parol evidence admissible to show con- 
 tract that of corporation. 
 
 Cited in note (20 L. R. A. 707) on admissibility of extrinsic evidence to show 
 who is liable as maker of note. 
 Individual liability of directors. 
 
 Cited in Woodward v. Beasley, 2 Tenn. Ch. App. 360, holding the president 
 of a corporation alleged to have been fraudulently formed for the purpose of 
 of buying his property at an overvaluation, said corporation not having legal 
 authority to contract debts, having indorsed notes as collateral to complainant, 
 is bound by his indorsement though the notes were improperly issued as to 
 corporation. 
 
 Cited in notes (9 L. R. A. 653) on liability of directors of corporation; (4 L. 
 R. A. 747 on personal responsibility of directors to creditors; (12 L. R. A. 366) 
 on individual liability on contracts of corporation; (12 L. R. A. 346) on respon- 
 sibility of agent on his contracts; (19 L. R. A. 677) on personal liability of 
 officers on note made for corporation. 
 Liability of principal on note executed by uncut. 
 
 Cited in note (21 L.R.A.(X.S.) 1050, 1062) on liability of principal on nego- 
 tiable paper executed by agent. 
 Liability of unauthorized agent. 
 
 Cited in wote (34 L.R.A.(X.S.) 519) on liability of one assuming, without 
 authority, to contract as agent. 
 
 3 L. R. A. 398, Ex parte GRIFFITHS, 118 Ind. 83, 10 Am. Rep. 107, 20 X. E. 513. 
 Judicial functions. 
 
 Cited in Foreman v. Hennepin County, 64 Minn. 372, 67 X. W. 207, holding in- 
 
499 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 400 
 
 valid act conferring powers upon probate judge concerning inebriates; Griffin v. 
 State, 119 Ind. 521, 22 X. E. 7, holding act requiring judge to prepare syllabi of 
 reports invalid; Vigo County v. Stout, 136 Ind. 59, 22 L. R. A. 401, 35 N. E. 683, 
 holding court had control of running of elevator in courthouse; State ex rel. White 
 v. Barker, 116 Iowa, 110, 57 L. R. A. 252, 89 X. W. 204, holding court cannot ap- 
 point trustees for a waterworks system; Re Atty. Gen. 21 Misc. 108, 47 N. Y. Supp. 
 20, holding act imposing nonjudicial duties on supreme court invalid; State ex 
 rel. Hovey v. Xofcle, 118 Ind. 355, 4 L. R. A. 105, 10 Am. St. Rep. 143, 21 X. E. 244, 
 holding act establishing commissioners as judicial assistants to the court, without 
 power of appointment in court, invalid; Board of White County v. Gwin, 136 Ind. 
 586, 22 L. R. A. 413, 36 N. E. 237, holding constitutional laws, however unwise and 
 impolitic, binding on courts; Barnett v. State, 42 Tex. Grim. Rep. 321, 62 S. W. 
 7C5 (dissenting opinion), majority sustaining statute providing conviction shall 
 not be reversed on appeal where exception not reserved; Chicago, L & L. R. 
 Co. v. Railroad Commission, 38 Ind. App. 458, 78 X. E. 338, holding that the 
 court has power to determine whether a rate has been legally established or not; 
 Ex parte Brown, 166 Ind. 602, 78 X. E. 553, holding that the Supreme Court 
 has inherent power to entertain a petition from its clerk in regard to his duties 
 in reference to its decisions; Parkison v. Thompson, 164 Ind. 627, 73 X. E. 109 
 3 A. & E. Ann. Cas. 677, holding that the legislature has no authority over the 
 rules adopted by the judiciary in conducting its' official business; Alabama West- 
 ern R. Co. v. Talley-Bates Constr. Co. 162 Ala. 410, 50 So. 341, on the inability 
 of the legislature to control the judiciary. 
 
 Cited in footnote to Herndon v. Imperial F. Ins. Co. 18 L. R. A. 547, which denies 
 legislative power to give right to rehearing contrary to court rule. 
 
 Distinguished in Jackson County v. State, 147 Ind. 493, 46 X. E. 908, holding 
 legislature might authorize judges to perform ministerial duties in proceedings to 
 relocate county seat. 
 Limitations upon poorer of legislature. 
 
 Cited in Arnett v. State, 168 Ind. 186, 8 L.R.A.(X.S.) 1192, 80 X. E. 153, hold- 
 ing that the fixing of a compensation limit is a legislative authority, and can- 
 not be delegated to the Governor. 
 
 3 L. R. A. 400, STAXBROUGH v. COOK, 38 Fed. 369. 
 Removal of separable controversy. 
 
 Cited in Bates v. Carpentier, 98 Fed. 454, and Carothers v. McKinley Min. & 
 Smelting Co. 116 Fed. 951, holding action to quiet title, with several defendants, 
 severable and removable; Sherwood v. Xewport Xews & M. Valley Co. 55 Fed. 5, 
 holding cause can be removed when plaintiffs are aliens ; Spangler v. Atchison, T. 
 & S. F. R. Co. 42 Fed. 307, holding nonresident defendant may remove cause when 
 controversy is separable; Insurance Co. v. Delaware Mut. Ins. Co. 50 Fed. 257, 
 holding plaintiff cannot join separate and distinct causes, legal and equitable, to 
 prevent removal to Federal court; St. Louis, A. & T. R. Co. v. Trigg, 63 Ark. 538, 
 40 S. W. 579, holding all defendants must join in application to remove cause: 
 Xational Bank v. Howard. 54 Misc. 82, 103 X. Y. Supp. 814, holding under the 
 third clause of see. 2 of act of 1888 it is not necessary that the defendant upon 
 whose application the order of removal is based shall be a nonresident; Iowa 
 Lillooet Gold Min. Co. v. Bliss, 144 Fed. 455, holding that parties not properly 
 joined as parties defendant are not to be considered on question of removal to 
 Federal court. 
 
 Cited in note (5 L.R.A.(X.S.) 56, 57, 72) on removal of cause because of sep- 
 . arable controversy. 
 
3 L.R.A. 403] L. R. A. CASES AS AUTHORITIES. 500 
 
 3 L. R. A. 403, PEOPLE v. ELLIOTT, 74 Mich. 264, 16 Am. St. Rep. 640, 41 X. 
 
 W. 916. 
 What is lottery. 
 
 Cited in Reilley v. United States, 46 C. C. A. 34, 106 Fed. 904, upholding convic- 
 tion of conspiracy in carrying on lottery called policy; State v. Dalton, 22 R. I. 
 83, 48 L. R. A. 779, 84 Am. St. Rep. 818, 46 Atl. 234, holding trading stamps not 
 a lottery; Reilly v. Gray, 77 Hun, 409, 28 X. Y. Supp. 811, holding betting on horse 
 racing not a lottery within constitutional prohibition; Chancy Park Land Co. v. 
 Hart, 104 Iowa, 596, 73 N. W. 1059, holding sale of lots to persons, to be appor- 
 tioned as the purchasers might decide, not a lottery; Quatsoe v. Eggleston. 42 Or. 
 319, 71 Pac. 66, holding offer of piano for one holding largest number of tickets 
 given by merchant not illegal; United States v. Rosenblum, 121 Fed. 182, holding 
 offer of prize for nearest estimate to number of cigarettes on which tax paid, 
 accompanied with coupons, not lottery; Equitable Loan & Secur. Co. v. Waring, 
 117 Ga. 615, 62 LJR.A. 93, 97 Am. St. Rep. 177, 44 S. E. 320, holding that con- 
 sideration, prize and chance are necessary elements of lottery; Stevens v. Cin- 
 cinnati Times-Star Co. 72 Ohio St. 147, 106 Am. St. Rep. 586, 73 X. E. 1058, hold- 
 ing a guessing contest in a newspaper, to be lottery where money is paid for 
 chance of winning a prize; Russell v. Equitable Loan & Secur. Co. 129 Ga. 163, 
 58 S. E. 881, 12 A. & E. Ann. Gas. 129, on what constitutes lottery; People ex rel. 
 Ellison v. Lavin, 179 X. Y. 170, 66 L.R.A. 604, 71 X. E. 753, 1 A. & E. Ann. Cas. 
 165, holding a distribution of prizes to those who shall make the closest estimate 
 of the number of cigars on which a tax is paid during a specified month to be 
 lottery; Waite v. Press Pub. Asso. 11 L.R.A.(X.S.) 613, 85 C. C. A. 576, 155 Fed. 
 63, 12 A. & E. Ann. Cas. 319, holding a guessing contest on the popular vote for 
 president for a prize to subscribers of a magazine to be a lottery ; Com. v. Moor- 
 head, 7 Pa. Co. Ct. 516, holding lottery does not embrace anything which is free 
 from chance or hazard. 
 
 Cited in footnotes to State ex rel. Kellogg v. Kansas Mercantile Asso. 11 L. R. 
 A. 430, which holds scheme for distribution of prizes by chance, a lottery; Martin 
 v. Richardson, 19 L. R. A. 692, which holds unlawful purchaser of lottery ticket 
 entitled to recover proceeds from one fraudulently obtaining after prize is drawn; 
 Lynch v. Rosenthal, 31 L. R. A. 835, which holds sale of lots to be drawn by lot, 
 with one prize lot to be given to one of purchasers as result of chance, void ; State 
 ex rel. Prout v. Xebraska Home Co. 60 L. R. A. 448, which holds scheme by 
 which common fund distributed among contributors, a valuable preference in 
 distribution depending on chance, a lottery; State ex rel. Sheets v. Interstate Sav. 
 Invest. Co. 52 L. R. A. 531, which holds unlawful, contracts of investment securi- 
 ties, etc. capable of redemption before fixed credit accumulated and otherwise giv- 
 ing unequal preferences to holders; Thornhill v. O'Rear, 31 L. R. A. 792. which 
 holds agreement by one person to take all chances of raffle not unlawful : Equitable 
 Loan & Security Co. v. Waring, 62 L. R. A. 93. which holds consideration, prize, 
 and chance, elements necessary to constitute lottery. 
 
 Cited in notes (7 L. R. A. 599, 601 )on what constitutes a lottery; (8 L. R. A. 
 671) on definition of lottery schemes; (10 L. R. A. 60) on lotteries and lottery 
 tickets; (16 Am. St. Rep. 43) on what is a lottery. 
 
 Distinguished in People v. McPhee,. 139 Mich. 691, 69 L.R.A. 508, 103 X. W. 174, 
 5 A. & E. Ann. Cas. 835, as not laying down a definition of "lottery" applicable 
 to all cases. 
 Gambling paraphernalia. 
 
 Cited in People v. Hess, 85 Mich. 131, 48 X. W. 181, holding officer might seizo 
 gambling paraphernalia without search warrant. 
 
501 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 409 
 
 Liability for condncting lottery. 
 
 Cited in Fidelity Funding Co. v. Vaughn, 18 Okla. 26, 10 L.R.A.(X.S.) 1128, 
 90 Pac. 34, holding where agent has knowledge thereof he is equally liable with 
 principal for running a lottery. 
 
 3 L. R. A. 406, HAROLD v. JONES, 86 Ala. 274, 5 So. 438. 
 Rights in driving: Ion-. 
 
 Cited in Coyne v. Mississippi & R. River Boom Co. 72 Minn. 536, 41 L. R. A. 
 498, 71 Am. St. Rep. 508, 75 X. W. 748, holding owner of lawfully placed boom 
 in navigable river not liable for damages caused by jam not formed by his negli- 
 gence; Outterson v. Gould, 77 Hun, 431, 28 N. Y. Supp. 789, holding damages not 
 recoverable for carrying away of dam in high water when reasonable care was 
 used in driving logs; Langstaff v. McRae, 22 Ont. Rep. 86, holding use of a boom 
 lawful by statute and where no negligence is shown creates no liability for tort. 
 
 Cited in footnote to New Orleans & X. E. R. Co. v. McEwen, 38 L. R. A. 134, 
 which holds owner not liable for damage by driving logs broken from raft in vio- 
 lent storm. 
 
 Cited in notes (39 L. R. A. 491) on right to construct log boom; (3 L. R. A. 
 809) on facilities of mill owners for passage of logs; (41 L. R. A. 372) on right to 
 use stream for floating logs; (39 L. R. A. 493) on private right of action against 
 owner of log boom; (44 L. ed. U. S. 438) on obstruction of navigable stream by 
 log booms. 
 What -waters are navigable. 
 
 Cited in Bayzer v. McMillan Mill Co. 105 Ala. 399, 53 Am. St. Rep. 133, 16 So. 
 1)23, holding creek, never used except, spasmodically, for floating sawlogs and 
 lumber, not navigable. 
 
 Cite^d in footnotes to Heyward v. Farmers' Min. Co. 28 L. R. A. 42, which holds 
 navigable capacity test of navigability; Olive v. State, 4 L. R. A. 33, which holds 
 stream navigable throughout year when adaptable for valuable floatage at usual 
 stage of water. 
 
 Cited in note (5 L. R. A. 393) on navigable watercourses. 
 Riparian rights. 
 
 Cited in notes (5 L. R. A. 62) on riparian rights of owners bounding on nav- 
 igable stream; (13 L. R. A. 828) on recognition and enforcement in equity of 
 rights of riparian proprietors; (9 L. R. A. 195) on franchise of water companies. 
 Obstruction of highway. 
 
 Cited in note (14 Am. St. Rep. 429) on obstruction of highway. 
 
 < on I'li-ion of goods. 
 
 Cited in footnote to Stone v. Marshall Oil Co. 65 L.R.A. 219, which holds that 
 assignee of gas lease fraudulently commingling products of the leased well with 
 product of other wells without keeping record of amount of gas produced by 
 former, compelled to account to assignor for proportionate part called for by 
 contract, of the entire amount of gas produced. 
 
 3 L. R. A. 409, SUPREME LODGE, K. OF P. v. KNIGHT, 117 Ind. 489, 20 N. E. 
 
 479. 
 Remedies by and against mntnal benetit company. 
 
 Cited in Gibson v. Megrew, 154 Ind. 281, 48 L. R. A. 366, 56 N. E. 674, holding 
 mortuary assessment in benefit association cannot be collected by action; Great 
 Western' Mut. Aid Asso. v. Colmar, 7 Colo. App 281, 43 Pac 159, holding action, 
 and not mandamus, proper remedy to compel assessn-nt for death claim; Sour- 
 wine v. Supreme Lodge K. of P. 12 Ind. App. 450, :>4 Am. St. Rep. 532, 40 N. E. 
 
3 L.R.A. 409] L. R. A. CASES AS AUTHORITIES. 502 
 
 646, holding beneficiaries can recover when member of association was wrongfully 
 refused transfer to another class by association's medical examiner; Supreme- 
 Council, 0. of C. F. v. Forsinger, 125 Ind. 53, 9 L. R. A. 501, 21 Am. St. Rep. 196 r 
 25 X. E. 129, holding beneficiary of benefit association not bound to anticipate- 
 defense in action for injuries; Fullenwider v. Supreme Council of R. L. 73 111. 
 App. 338, holding injunction would not be granted to restrain the enforcement of 
 amendments to by-laws of fraternal society; Schmidt v. German Mut. Ins. Co. 4 
 Ind. App. 342, 30 N. E. 939, holding notice required to forfeit mutual fire insur- 
 ance company's policy is personal; Barrows v. Mutual Reserve L. Ins. Co. 81 C, 
 C. A. 71, 151 Fed. 465, holding that courts will interfere with directors only 
 where there is a manifest abuse of discretion. 
 
 Cited in notes (13 L. R. A. 625) on binding effect of judicial decisions by mu- 
 tual benefit associations; (7 L. R. A. 582) on conclusiveness of erroneous judg- 
 ments until reversal. 
 By latvs as constructive notice. 
 
 Cited in Green v. Felton, 42 Ind. App. 680, 84 N. E. 166, holding by laws of 
 corporation sufficient notice to stockholders of contents thereof. 
 By-laws of benevolent societies. 
 
 Cited in Evans v. Southern Tier Masonic Relief Asso. 76 App. Div. 156, 78 N. 
 Y. Supp. 611, holding constitution and by-laws of mutual benefit society must be 
 taken as a whole in determining the contract with member; Peterson v. Gibson, 
 191 111. 368, 54 L. R. A. 838, 85 Am. St. Rep. 263, 61 N. E. 127, holding certifi- 
 cate issued on condition of compliance with by-laws refers to those then existing; 
 Farmers Mut. Hail Ins. Asso. v.' Slattery, 115 Iowa, 415, 88 N. W. 949, holding 
 agreement of member of benefit association to be bound by by-laws refers to those 
 then in existence; Fullenwider v. Supreme Council of R. L. 180 111. 626, 72 Am, 
 St. Rep. 239, 54 N. E. 485, holding member agreeing to be bound by by-laws herein- 
 after to be enacted has no vested right in existing rate of assessment; Home 
 Forum Benefit Order v. Jones, 5 Okla. 609, 50 Pac. 940, holding party applying 
 for membership to fraternal order through local branch presumed to know by-law 
 giving home office exclusive right to issue certificate: Wist v. Grand Lodge A. O. 
 U. W. 22 Or. 281, 29 Am. St. Rep. 603, 20 Pac. 610, holding by-law of benefit soci- 
 ety limiting the nomination of beneficiaries not retroactive; Lloyd v. Supreme 
 Lodge, K. of P. 38 C. C. A. 658, 98 Fed. 70 (same case on subsequent appeal in 
 46 C. C. A. 154, 107 Fed. 70) holding by-law reducing benefit if death caused in- 
 certain way not retroactive; Marshall v. Pilots' Asso. 18 Pa. Super. Ct. 650, hold- 
 ing member of pilot's association bound by subsequent by-law reducing amount 
 of benefit; Interstate Bldg. & L. Asso. v. Wooten, 113 Ga. 252, 38 S. E. 738. ho! cl- 
 ing by-law permitting discharge of indebtedness upon certain payment by bor- 
 rowing member of loan association cannot thereafter be altered to increase such 
 payment; Newton v. Northern Mut. Relief Asso. 21 R. I. 480, 44 Atl. 690, holding 
 member bound by by-laws accepted in certificate reducing benefit; Pain v. Socie't 
 St. Jean Baptiste, 172 Mass. 323, 70 Am. St. Rep. 287, 52 N. E. 502, holding mem- 
 ber of benefit association bound by by-law reducing benefits, passed after he be- 
 came member; Supreme Lodge K. of P. v. Kutscher, 179 111. 346, 70 Am. St. Rep. 
 115, 53 N. E. 620. holding that suicide of member of benefit association voided 
 certificate, as provided by by-law passed after membership began; Supreme Tent r 
 K. of M. v. Hammers, 81 111. App. 568, holding by-law of mutual benefit society 
 forfeiting policy for suicide reasonable; Domes v. Supreme Lodge K. of P. 75 Miss. 
 479, 23 So. 191, holding suicide amendment passed by supreme lodge in mode other 
 than that provided by constitution binding; Supreme Lodge K. of P. v. Trebbe r 
 179 111. 353, 70 Am. St. Rep. 120, 53 N. E. 730, holding suicide by-law binding 
 
503 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 409 
 
 though voted by lodge in manner different from that provided by constitution; 
 Pfister v. Gerwig, 122 Ind. 570, 23 N. E. 1041, holding policy issued to member 
 of mutual insurance company voided by mortgage given in violation of by-law; 
 Lawson v. Hewell, 118 Cal. 620, 49 L. R. A. 403, 50 Pac. 763, holding that courts 
 will not consider questions relating solely to rules of conduct of Masonic organiza- 
 tions; Interstate Bldg. & L. Asso. v. Hofter, 76 Miss. 779, 24 So. 871, holding 
 borrowing member of building association has no vested right in amendable by- 
 law, in force when loan procured; Wuerfler v. Grand Grove, 116 Wis. 28, 96 Am. 
 St. Rep. 940, 92 N. W. 433, denying power to change rights under benefit certificate 
 by subsequent change in by-laws; Wright v. Minnesota Mut. L. Ins. Co. 193 
 U. S. 664, 47 L. ed. 836, 24 Sup. Ct. Rep. 549, holding mutual insurance company's 
 change from assessment plan to legal reserve flat premium plan of "old line'* 
 companies valid; Hayden v. Franklin L. Ins. Co. 69 C. C. A. 423, 136 Fed. 291; 
 United Moderns v. Colligan, 34 Tex. Civ. App. 176, 77 S. W. 1032, holding 
 Constitution and by-laws are a part of the contract between mutual benefit 
 society and its members; Bruley v. Royal League, 3 111. C. C. 338, holding mem- 
 ber of mutual benefit society must take notice of all the by-laws which affect 
 his interest; McCallister v. Shannondale Co-op. Teleph. Co. 47 Ind. App. 527, 94 
 X. E. 910, holding that every corporation has inherent power to pass by-laws for 
 its government without interference by courts; McDermott v. St. Wilhelminia 
 Benev. Aid Soc. 24 R. I. 535, 54 Atl. 58, holding member bound by an election 
 of an officer under rules of association, though absent at the time; Burns v. 
 Manhattan Brass. Mut. Aid Soc. 102 App. Div. 469, 92 N. Y. Supp. 846, holding 
 a provision in a Constitution not by legislative authority is simply a by-law; 
 Farmers' Mut. F. Ins. Co. v. Jackman, 35 Ind. App. 12, 73 N. E. 730, holding that 
 if articles of association of mutual benefit corporation contain provisions not re- 
 quired by statute such provisions are void as such and must be construed to be 
 by-laws; United Brotherhood, C. & J. v. Dinkle, 32 Ind. App. 280. 69 N. E. 707; 
 Farra v. Braman, 171 Ind. 538, 86 N. E. 843, holding that by-laws, rules and 
 regulations of mutual benefit association are a part of insurance contract; Boylea 
 v. Roberts, 222 Mo. 772, 121 S. W. 805 (dissenting opinion), on by-laws of cor- 
 poration as binding on members; Theorell v. Supreme Court, H. 115 111. App. 318,, 
 holding when a member of a fraternal benefit society expressly agrees to be 
 bound by by-laws subsequently enacted he is bound thereby unless they are un- 
 reasonable; Eversberg v. Supreme Tent K. M. 33 Tex. Civ. App. 553, 77 S. W. 
 246; Hall v. Western Traveler's Acci. Asso. 69 Xeb. 604, 96 X. W. 170, holding 
 a member of a mutual insurance company who agrees to be bound by subse- 
 quent by-laws is bound by subsequent reasonable by-laws; Pain v. Socie'te' St. 
 Jean Baptiste, 172 Mass. 323, 70 Am. St. Rep. 287, 52 X. E. 502, holding a subse- 
 quent but reasonable change in amount of sick benefits to be binding; Head Camp 
 P. J. W. W. v. Woods, 34 Colo. 22, 81 Pac. 261, holding members bound by an; 
 amendment for payment of an additional rate by those engaging in certain oc- 
 cupations after having received his benefit certificate; Hadley v. Queen City 
 Camp Xo. 27, W. W. 1 Tenn. Ch. App. 431, holding the legislation making a 
 change in laws of mutual benefit society as to beneficiary not being expressly- 
 made to apply to existing contracts, was prospective and not retroactive; Gil- 
 more v. Knights v. Columbus, 77 Conn. 62, 107 Am. St. Rep. 17, 58 Atl. 223, 1 
 A. & E. Ann. Gas. 715, holding members bound by a reasonable amendment subse- 
 quently made to the list of extra hazardous occupations; Saltman v. Xesson, 201 
 Mass. 542, 88 X. E. 3, holding a by-law changing form of worship of a religious 
 corporation to be void; Wuerfler v. Grand Grove W. 0. D. 116 Wis. 28, 96 Am. St. 
 Rep. 940, 92 N. W. 433, holding void an amendment canceling all $1000 certifi- 
 cates on substituting a death benefit certificate indefinite in amount; Wright v> 
 
3 L.R.A. 409] L. R. A. CASES AS AUTHORITIES. 504 
 
 Minnesota Mut. L. Ins. Co. 193 U. S. 664, 47 L. ed. 836, 24 Sup. Ct. Rep. 549, 
 sustaining a change from assessment plan to regular premium basis under state 
 law; Reynolds v. Supreme Council, R. A. 192 Mass. 155, 7 L.R.A.(X.S.) 1162, 78 
 N. E. 129, 7 A. & E. Ann. Cas. 776, holding valid an amendment of by-law class- 
 ing members according to age for the purpose of readjusting method of assess- 
 ment; Mathieu v. Deupert, 112 Md. 629, 77 Atl. 112, holding valid a subsequent 
 amendment making designation of beneficiary void where he marries after is- 
 suance of certificate; Supreme Council A. L. H. v. Jordan, 117 Ga. 811, 45 S. E. 
 33, holding that the amount which society agrees to pay can not be changed by a 
 subsequent amendment to decrease amount; Kennedy v. Iowa Legion of H. 184 
 Iowa, 68, 99 N. W. 137, holding where there was a subsequent change of benefits 
 upon compliance by the assured with certain requirements rights of beneficiary 
 were not changed where deceased failed to perform conditions. 
 
 Cited in footnotes to Peterson v. Gibson, 54 L. R. A. 836, which holds provision 
 in benefit certificate for compliance with constitution and by-laws refers to exist- 
 ing ones only; Strauss v. Mutual Reserve Fund Life Asso. 54 L. R. A. 605, which 
 holds unauthorized, changes in constitution and by-laws destroying value of con- 
 tract with insured; Parish v. New York Produce Exchange, 56 L. R. A. 149, which 
 denies power to bind dissenting members by amending by-laws so as to distribute 
 among living members fund accumulated for persons dependent on members at 
 time of death; Thibert v. Supreme Lodge, K. of H. 47 L. R. A. 136, which holds 
 member of beneficial insurance association protected against unreasonable amend- 
 ments of by-laws; Gaut v. Supreme Council, A. L. of H. 55 L. R. A. 465, which 
 denies power of benefit society to reduce amount of certificate after payment of 
 assessments for years; Bragaw v. Supreme Lodge, K. & L. of H. 54 L. R. A. 602, 
 which denies power of benefit society to change at will contract of insurance made 
 with each member; Shipman v. Protected Home Circle, 63 L.R.A. 347. which holds 
 former members bound by adoption of by-law relieving benefit society from lia- 
 bility for death benefits in case of suicide; Del Ponte v. Societa Italiana di Mar- 
 coni, 70 L.R.A. 188, which upholds by-law of benefit society providing for ex- 
 pulsion of members for defaming members of directing council or any member 
 for reasons connected with society causing dissensions and disorders in society. 
 
 Cited in notes (7 L. R. A. 189) on transfer of mutual benefit certificate; (25 
 L.R.A. 49) on effect of corporate by-laws as noted; (1 L.R.A.(N.S.) 623) on right 
 of assessment company to change plan or class of policies; (31 L.R.A. (N.S.) 427, 
 428) on right of mutual benefit society to decrease benefits; (43 Am. St. Rep. 
 157) on limitations on power of private corporation to enact by-laws; (52 Am. 
 St. Rep. 556, 557, 558) on by-laws of mutual or membership life or accident in- 
 surance; (83 Am. St. Rep. 707, 709, 711, 716, 719) on effect of changes in by-laws 
 of beneficial association as against pre-existing members. 
 
 Distinguished in Smith v. Northwestern Xat. L. Ins. Co. 123 Wis. 594, 102 
 N. W. 57, denying right to classify members and change stipulated premium: 
 Hicks v. Northwestern Aid Asso. 117 Tenn. 214, 96 S. W. 962, holding where asso- 
 ciation by terms of policy had no right to change rate unless there was exhaustion 
 of mortuary fund or an unexpected emergency that burden of showing either of 
 these causes was on association. 
 Classes of membership. 
 
 Cited in People's Mut. Ben. Soc. v. McKay, 141 Ind. 423, 39 N. E. 231, holding 
 beneficiary under benefit policy bound to prove what proportion of fund of class 
 applicable to its payment: Gray v. Supreme Lodge, K. of H. 118 Ind. 300, 20 N. 
 E. 833, holding beneficiary only entitled to amount of benefit of class to which 
 member belonged, provided by amended by-laws. 
 
505 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 416 
 
 Distinguished in Old Wayne Mut. L. Asso. v. Xordby, 122 Ind. 450, 24 N. E. 
 159, holding class in benefit association not shown to be divided so that beneficiary 
 must look to that subdivision for payment. 
 Character of mutual benefit society. 
 
 Cited in Grimes v. Northwestern L. of H. 97 Iowa, 323, 64 N. W. 806, holding 
 secret mutual benefit society a life insurance company. 
 Status of members. 
 
 Cited in Leadlay v. McGregor, 11 Manitoba L. Rep. 20, holding member of 
 mutual benefit society has no interest in fund raised or to be raised, but merely 
 a power to appoint an object to receive the same, which power must be exer- 
 cised in accordance with the regulations of the society. 
 Intmrable Interest. 
 
 Cited in United States Mut. Acci. Asso. v. Hodgkin, 4 App. D. C. 524, holding 
 party named as beneficiary by action of association itself, in certificate of mutual 
 benefit society, has insurable interest. 
 Relief under pleadings. 
 
 Cited in Mitchell v. Weaver, 118 Ind. 57, 10 Am. St. Rep. 104, 20 N. E. 525, 
 holding that recovery must be on cause of action set out in complaint and in ac- 
 cordance with theory on which it proceeds; Grand Lodge. A. O. U. W. v. Hall, 
 37 Ind. App. 372, 76 N. E. 1029, holding that party must plead performance by 
 the assured; Grand Lodge, A. O. U. W. v. Barwe, 38 Ind. App. 311, 75 N. E. 971, 
 holding complaint in question sufficient. 
 Proof to sustain damages. 
 
 Cited in Vandenberg v. Slagh, 150 Mich. 229, 114 N. W. 72, holding that to 
 recover substantial damages one must offer evidence from which loss can be 
 computed with reasonable certainty. 
 Similarity of legal principles applicable to benefit and religions societies. 
 
 Cited in Ramsey v. Hicks, 44 Ind. App. 504, 87 X. E. 1091; Bentle v. Ulay, 
 46 Ind. App. 670, 93 N. E. 459, holding that legal principles applicable to benefit 
 societies are applicable to religious societies. 
 
 :j L. R. A. 414, FERRESS v. TAVEL, 87 Tenn. 386, 11 S. W. 93. 
 Notice of equities to bona fide purchaser for value. 
 
 Cited in Buchanan v. Wren, 10 Tex. Civ. App. 566, 30 S. W. 1077, holding prom- 
 i^ory note, negotiable in form, negotiable, although showing it was given for 
 unexpired term; Merchants' & P. Bank v. Penland, 101 Tenn. 448, 47 S. W. 693, 
 holding knowledge that consideration might partially fail not fatal to character 
 of bona fide holder for value of negotiable note; Bank of Sampson v. Hatcher, 
 1,51 X. C. 362, 134 Am. St. Rep. 989, 66 S. E. 308, holding an indorsement "with- 
 out recourse" not to deprive party of rights as bona fide holder. 
 
 Cited in notes (29 L.R.A. (N.S.) 382) on circumstances sufficient to put pur- 
 chaser of negotiable paper on inquiry; (14 Am. St. Rep. 793) on notice of equities 
 to indorsers. 
 Status of holder of promissory note in payment of pre-existing debt. 
 
 Cited in Bank of Charleston v. Johnston, 105 Tenn. 530, 59 S. W. 131, and Mar- 
 tin v. Citizens' Bank & T. Co. 94 Tenn. 180, 28 S. W. 1097, holding one taking 
 note in payment of or as security for pre-existing debt not a bona fide holder. 
 
 Cited in note (4 Eng. Rul. Cas. 331) on taking of bills and notes as mere col- 
 lateral security for precedent debt as taking for value. 
 
 3 L. R. A. 416, AT WOOD v. DUMAS, 149 Mass. 167. 21 X. E. 2.36. 
 
 Sc-iri- facias against trustee, in Atwood v. Wc-t F."xli;i'-y Co-operative Bank, 
 ]o<; Muss. ];<;. :u> X. E. 558. 
 
3 L.R.A. 416] L. R. A. CASES AS AUTHORITIES. 506 
 
 Nature of co-operative associations. 
 
 Cited in Lindsay v. Arlington Co-op. Asso. 186 Mass. 374, 71 N. E. 797, holding 
 a, by-law of a co-operative association providing that a member desiring to with- 
 draw may do so on application to board of directors is valid. 
 Co-operative banks. 
 
 Cited in Jewett v. West Somerville Co-operative Bank, 173 Mass. 56, 73 Am. 
 St. Rep. 259, 52 N. E. 1085, holding co-operative bank not bound by unauthorized 
 acceptance of order by its treasurer; Leahy v. National Bldg. & L. Asso. 100 Wis. 
 565, 69 Am. St. Rep. 945, 76 N. W. 625, holding member of mutual profit sharing 
 .association has no claim to any specific fund of the association. 
 
 Cited in note (35 L. R. A. 302) on withdrawal from building and loan associa- 
 tions. 
 Stockholder's interest In corporate assets. 
 
 Distinguished in Ellsworth v. Lyons, 104 C. C. A. 1, 181 Fed. 62, holding that 
 preferred stockholders are not entitled, in preference to creditors, to proceeds of 
 insurance on secretary's life, taken out to retire preferred stock. 
 Garnishment. 
 
 Cited in note (18 L.R.A.(N.S.) 1159) on stockholder's interest in corporation 
 .as subject of garnishment. 
 
 -3 L. R. A. 417, RUNGE v. FRANKLIN, 72 Tex. 585, 13 Am. St. Rep. 833, 10 S. 
 
 W. 721. 
 Privileged communications and proceeding's. 
 
 Cited in Sinclair v. Dalien, 73 Tex. 74, 11 S. W. 147, holding mere allegation 
 of publication of libelous matter sufficient against general demurrer; Cranfill v. 
 Hayden, 22 Tex. Civ. App. 663, 55 S. W. 805, holding proceedings of general Bap- 
 tist Convention, a sovereign body, privileged; McCord-Collins Commerce Co. v. 
 Levi, 21 Tex. Civ. App. 110, 50 S. W. 606, holding no damages recoverable for 
 malicious filing of civil suit unless defendant's property or person is wrongfully 
 seized or injuriously affected; Abbott v. National Bank of Commerce, 20 Wash. 
 555, 56 Pac. 376, holding relevant allegations in pleadings filed in proper court 
 privileged, though false or malicious; Nowotny v. Grona, 44 Tex. Civ. App. 327, 
 "98 S. W. 416, holding that merely bringing an unfounded suit against a sheriff 
 is not actionable; Kemper v. Fort, 219 Pa. 91, 13 L.R.A.(N.S.) 825, 123 Am. St. 
 Rep. 623, 67 Atl. 991, 12 A. & E. Ann. Gas. 1022, holding an allegation of ille- 
 gitimacy in a pleading to be privileged; Baggett v. Brady, 154 N. C. 344, 70 
 :S. E. 618, holding that affidavits as to character of applicant, used on application 
 for admission to bar, are privileged. 
 
 Cited in footnote to Niseen v. Cramer, 6 L. R. A. 780, which holds relevant 
 words spoken by party to action during trial privileged. 
 
 Cited in notes (104 Am. St. Rep. 116, 119, 123, 126) on what libelous state- 
 ments are privileged; (323 Am. St. Rep. 633, 641) on liability for libel or slander 
 in course of judicial proceedings. 
 Libelous publications. 
 
 Cited in footnote to Woodruff v. Bradstreet Co. 5 L. R. A. 555, which holds 
 publication that judgment recovered against merchant or trader libelous. 
 
 Cited in notes (9 L. R. A. 621) on definition of libel; (22 L. R. A. 649) on libel 
 by defamatory words in pleading; (15 Am. St. Rep. 362) on newspaper libel. 
 
 3 L. R. A. 424, INSURANCE CO. OF N. A. v. EASTON, 73 Tex. 167, 11 S. W. 180. 
 ^Limitation of carrier's liability. 
 
 Cited in footnotes to Chicago & N. W. R. Co. v. Chapman, 8 L. R. A. 508, which 
 
507 L. R. A. CASES AS AUTHORITIES [3 L.R.A. 430 
 
 holds carrier cannot limit liability for gross negligence or wilful misconduct; 
 Hull v. Chicago, St. P. M. & O. R. Co. 5 L. R. A. 587, which requires carrier 
 relying on contract limiting liability, to show freedom from negligence. 
 
 Cited in notes (6 L. R. A. 854) on carrier stipulating against liability from 
 negligence of itself, its servants, or its agents; (7 L. R. A. 215, 12 L. R. A. 800) 
 on carrier restricting liability by contract; (10 L. R. A. 420) on restriction on 
 carrier's power to limit liability by contract. 
 Act of God as defense. 
 
 Cited in note (11 L. R. A. 616) on act of God must be proximate, not remote, 
 cause of loss. 
 Subrogation as to insurance. 
 
 Cited in Lyons v. Boston & L. R. Co. 181 Mass. 557, 64 N. E. 404 (dissenting 
 opinion), majority sustaining statute giving railroad company held liable for 
 fires set by engines, benefit of policy issued before its enactment. 
 
 Cited in footnotes to New Hampshire F. Ins. Co. v. National L. Ins. Co. 57 L. 
 R. A. 692, which denies right of insurer, subrogated to mortgagee's claims against 
 mortgagor, to insist on charging mortgagee, retaining more than its share from 
 other policy, with amount paid to mortgagor; Svea Assur. Co. v. Packham, 52 
 L. R. A. 95, which holds settlement with insured with approval of majority of 
 insurers entitled to be subrogated, binding on nonapproving insurer; United 
 States Casualty Co. v. Bagley, 55 L. R. A. 616, which holds landlord liable to 
 insurer of tenant subrogated to his rights, for loss from defective condition of au- 
 tomatic fire apparatus; Packham v. German F. Ins. Co. 50 L. R. A. 828, which 
 holds right against insurer under policy providing for subrogation cut off by 
 destroying right of subrogation; Mason v. Marine Ins. Co. 54 L. R. A. 700, which 
 holds insurer receiving abandonment of vessel injured by collision entitled to 
 amount awarded against vessel in fault for loss of prospective earnings; Ander- 
 son v. Miller, 31 L. R. A. 604, which holds owner's right to recover for damage by 
 fire unaffected by having received full payment for loss by insurance. 
 
 Cited in note (29 L.R.A. (N.S.) 7U3) as to effect of discharge of person primarily 
 liable for loss or of contractual provision giving him benefit of insurance, upon 
 insured's right of action against insurer. 
 
 3 L. R. A. 430, BROWN v. STOERKEL, 74 Mich. 269, 41 N. W. 921. 
 Xatnre of an unincorporated association. 
 
 Cited in Brower v. Crimmins, 67 Misc. 71, 121 N. Y. Supp. 648, holding that an 
 unincorporated association cannot have an agent; St. Paul Typothetae v. St. 
 Paul Bookbinders' Union No. 37, 94 Minn. 360, 102 N. W. 725, 3 A. & E. Ann. 
 Cas. 695, holding a bookbinders' union not a business concern; L. D. Willcutt & 
 Sons Co. v. Driscoll, 200 Mass. 127, 23 L.R.A.(N.S.) 1247, 85 N. E. 897, holding 
 that a labor union cannot enforce a fine against its members to coerce them to 
 strike to the injury of one seeking to employ them. 
 
 Cited in notes (17 L.R.A. 204, 205) on power and authority of voluntary asso- 
 ciations; (7 Am. St. Rep. 161) on legal nature of voluntary associations; (7 Am. 
 St. Rep. 169) on jurisdiction of courts over voluntary associations; (19 Eng. Rul. 
 Cas. 403 ) on members of clubs, associations and societies as partners. 
 Property rii-.ht* in social clnb or associations. 
 
 Cited in Textile Workers Union No. 1 v. Barrett, 19 R. I. 664, 36 Atl. 5, holding 
 member of voluntary social club has no ownership in its property; Blue Mountain 
 Forest Asso. v. Borrowe, 71 N. H. 73, 51 Atl. 670, holding by-law of park asso- 
 ciation providing that unpaid assessments shall be cl.-rge on delinquent interest 
 valid and binding; Kalbitzer v. Goodhue, 52 W. Va. 440, 44 S. E. 264, holding 
 
?, L.R.A. 430] L. R. A. CASES AS AUTHORITIES. 508 
 
 consent of every member of voluntary association necessary as to disposition oi 
 funds, where laws make no provision as to majority rule. 
 Dissolution of benevolent association. 
 
 Cited in footnote to Industrial Trust Co. v. Green, 17 L. R. A. 202, which holds 
 illegal deposition of president not ground for subsequent dissolution of benevolent 
 association. 
 Constitution and by-laws as contract. 
 
 Cited in McLaughlin v. Wall, 86 Kan. 49, 119 Pac. 541, holding that Constitu- 
 tion of voluntary benevolent association is contract, enforceable by courts; J. P. 
 Lamb & Co. v. Merchants' Nat. Mut. F. Ins. Co. 18 N. D. 264, 119 N. W. 1048, 
 holding that member of mutual fire insurance company has notice of and is bound 
 by its by-laws. 
 
 3 L. R. A. 434, LOUISVILLE, N. A. A C. R. CO. v. SNIDER, 117 Ind. 435, 19 
 
 Am. St. Rep. 60, 20 N. E. 284. 
 
 Admissibility of statement of injured person to physician as to bodily 
 condition. 
 
 Cited in Union P. R. Co. v. Novak, 9 C. C. A. 638, 15 U. S. App. 400, 61 Fed. 
 582, holding that physician, in describing physical injuries, may testify what pa- 
 tient said as to bodily condition; Indianapolis & M. R. Transit Co. v. Reeder, 37 
 Ind. App. 264, 76 N. E. 816, holding evidence by a physician of declarations of 
 patient of pain during treatment to be admissible; Federal Betterment Co. v. 
 Reeves, 73 Kan. 119, 4 L.R.A.(N.S.) 466, 84 Pac. 560 (dissenting opinion), on the 
 competency of testimony of a physician. 
 
 Distinguished in Holloway v. Kansas City, 184 Mo. 33, 82 S. W. 89. holding that 
 a physician cannot give an opinion based on a history of case given by party 
 calling him. 
 Opinions of experts. 
 
 Cited in note (4 L. R. A. 555) on opinions of experts. 
 Proximate cause of injury. 
 
 Cited in Montgomery & E. R. Co. v. Mallette, 92 Ala. 215, 9 So. 363, and 
 Brunker v. Cummins, 133 Ind. 450, 32 N. E. 732, holding aggravation of previous 
 injury through negligence of wrongdoer entitles injured person to recover dam- 
 ages; Louisville, N. A. & C. R. Co. v. Nitsche, 126 Ind. 233, 9 L. K. A. 752, 22 Am. 
 St. Rep. 582, 26 N. E. 51, holding carrier negligently setting out fire on right of 
 way liable for all damages caused by spreading; Scherer v. Schlabeig, 18 X. D. 
 437, 24 L.R.A.(N.S.) 529, 122 X. W. 1000 (dissenting opinion), on liability of 
 carrier of passenger where its negligence co-operates with the negligence of an- 
 other in producing an injury. 
 
 Cited in footnotes to Maguire v. Sheehan, 59 L.R.A. 496. which sustains liabil- 
 ity for entire injury through negligence, though shock brought on delirium tre- 
 mens, retarding recovery; Chicago City R. Co. v. Saxby, 68 L.R.A. 164, which 
 sustains right of injured person to recover for tuberculous condition of knee re- 
 sulting from injury, notwithstanding fact that tuberculosis was organic and 
 mistakes in treatment. 
 
 Cited in note (16 L. R. A. 268) on effect of previous disease of person injured, 
 on, liability for causing injury. 
 Contributory negligence. 
 
 Cited in Louisville, X. A. & C. R. Co. v. Miller, 141 Ind. 546, 37 X. E. 34?, 
 holding, as matter of law, person sitting in passenger car, hurt by derailing 
 thereof, not guilty of contributory negligence; Indianapolis Traction & Terminal 
 Co. v. Beckman, 40 Ind. App. 103, 81 X. E. 82, holding where a passenger is in- 
 
509 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 435 
 
 jured while in his proper place in car that question of contributory negligence 
 
 cannot arise. 
 
 Presumption of ueg-ligrence from injury to passenger. 
 
 Cited in Terre Haute & I. R, Co. v. Sheeks, 155 Ind. 95, 56 N. E. 434, and 
 Louisville, N. A. & C. R. Co. v. Hendricks, 128 Ind. 465, 28 N. E. 58, holding 
 burden on carrier to remove presumption of negligence arising from injury to 
 passenger. 
 
 Cited in notes (15 L.R.A. 36) on presumption of negligence from occurrence 
 of accidents; (20 Am. St. Rep. 491, 492) on accident as evidence of negligence; 
 (113 Am. St. Rep. 987) on presumption of negligence from happening of accident 
 causing personal injuries. 
 
 Cited in Citizens Street R. Co. v. Hoffbauer, 23 Ind. App. 620, 56 N. E. 54, 
 holding street car company bound to use highest degree of care while running 
 car on wrong track; Kentucky & I. Bridge Co. v. Quinkert, 2 Ind. App. 248, 28 
 N. E. 338, and Romine v. Evansville & T. H. R. Co. 24 Ind. App. 234, 56 N. E. 
 245, holding common carriers responsible for slightest neglect causing injury to 
 passengers; Montgomery & E. R. Co. v. Mallette, 92 Ala. 215, 9 So. 363; Ham- 
 mond, W. & E. C. Electric R. Co. v. Spyzchalski, 17 Ind. App. 12, 46 N. E. 47; 
 Prothero v. Citizens' Street R. Co. 134 Ind. 439, 33 N. E. 765, holding that 
 common carriers in transporting passengers must exercise highest care, diligence, 
 vigilance, and skill ; Metropolitan Street R. Co. v. Hanson, 67 Kan. 259, 72 Pac. 
 773, holding absence of conductor to open and shut doors of station on elevated 
 line, negligence warranting recovery for injuries due to doors striking passenger; 
 Montgomery & E. R. Co. v. Mallette, 92 Ala. 215, 9 So. 363, holding that the 
 highest degree of care, diligence and skill known to careful, diligent and skilful 
 persons engaged in that business is the degree of care required; Crump v. Davis, 
 33 Ind. App. 91, 70 N. E. 886, holding that carrier must use highest practical 
 <are; Alabama G. S. R. Co. v. Hill, 93 Ala. 520, 30 Am. St. Rep. 65, 9 So. 722, 
 holding carrier liable for slightest negligence; Indiana Union Traction Co. v. 
 ^Scribner, 47 Ind. App. 640, 93 N. E. 1014, holding correct, instruction that carrier 
 must thoroughly examine and test its vehicles. 
 
 Cited in notes (29 Am. St. Rep. 382) on degree of skill required of carrier of 
 passengers; (5 Eng. Rul. Cas. 462) on extent of duty to secure safety of passen- 
 gers. 
 
 3 L. R. A. 435, LOUISVILLE, N. A. & C. R. CO. v. BONEY, 117 Ind. 501, 20 N. 
 
 E. 432. 
 l.icns on, and sales of, railroads. 
 
 Cited in Bloxham v. Florida C. & P. R. Co. 35 Fla. 728, 17 So. 902, holding rail- 
 i#ad not exempt from taxation if its predecessor not exempt; Western U. Teleg 
 Co. v. Indiana. 165 U. S. 309, 41 L. ed. 727, 17 Sup. Ct. Rep. 345, holding act 
 valid imposing 50 per cent penalty on telegraph company for nonpayment of 
 taxes: Lake Erie & W. R. Co. v. Bouker, 9 Ind. App. 433, 36 N. E. 864, holding 
 personal judgment might be had against railroad to enforce sewer assessment 
 liens; Indianapolis & V. R. Co. v. Capitol Paving & Constr. Co. 24 Ind. App. 117, 
 54 X. E. 1076. holding railroad right of way in street not assessable for local 
 improvement to be assessed on property fronting or abutting on street; Louisville, 
 N. A. & C. R. Co. v. State, 8 Ind. App. 378, 35 X. E. 916, holding railroad cannot 
 be sold for taxes ; Western U. Teleg. Co. v. State, 146 Ind. 60, 44 N. E. 793, hold- 
 ing property of telegraph company cannot be sold for taxes, but receiver might be 
 appointed; Louisville, X. A. & C. R. Co. v. State, 122 Ind. 445, 24 N. E. 350, 
 holding act giving lien on railroad for ditch assessments does not permit sale of 
 .body of road; Chicago, R. I. & P. R. Co. v. Ottumwa, 112 Iowa, 319, 51 L. R. A. 
 
3 L.R.A. 435] L. R. A. CASES AS AUTHORITIES. 510 
 
 771, 83 N. W. 1074 (dissenting opinion), majority holding cost of paving and 
 curbing public highway cannot be assessed against railroad right of way; Chi- 
 cago & N. W. R. Co. v. Ellson, 113 Mich. 35, 71 X. W. 324, holding coal of rail- 
 road could be seized in payment of tax; People ex rel. Manhattan R. Co. v. Bar- 
 ker, 165 N. Y. 330. 59 N. E. 151 (dissenting opinion), majority holding that as- 
 sessment against elevated railway should not have been vacated entirely; Farmers 
 Loan & T. Co. v. Canada & St. L. R. Co. 127 Ind. 258, 11 L. R. A. 744, 26 X. E. 
 784, holding mechanics' lien can be acquired on part of railroad; Adams v. 
 Grand Island & W. C. R. Co. 12 S. D. 427, 81 N. W. 960, holding contractor can 
 file his lien upon the part of the railroad constructed by him ; Midland R. Co. 
 v. Wilcox, 122 Ind. 95, 23 X. E. 506, holding lien given upon railroad meant to be 
 attached to whole line; Connor v. Tennessee C. R. Co. 54 L. R. A. 695, 48 C. C. A. 
 740, 109 Fed. 940, holding sale of part of railroad roadbed apart from franchise, 
 under foreclosure of contractor's lien, ineffective; State ex rel. Wood v. Hare y 
 121 Ind. 309, 23 N. E. 145, holding franchise passes with sale of road on execu- 
 tion; Chicago & I. Coal R. Co. v. Hall, 135 Ind. 99, 23 L. R. A. 237, 34 X. E. 704, 
 holding that damages lie against successor of a railroad taking land; Wall v, 
 Xorfolk & W. R. Co. 52 W. Va. 489, 64 L. R. A. 506, 94 Am. St. Rep. 948, 44 S. 
 E. 294, holding loaded freight cars used in interstate commerce not subject to at- 
 tachment; Pittsburgh, C. C. & St. L. R. Co. v. Fish, 158 Ind. 528, 63 N. E. 454, 
 holding that railroad will not be sold piecemeal to satisfy lien for street im- 
 provements; Pere Marquette R. Co. v. Baertz. 36 Ind. App. 420. 74 X. E. 51, hold- 
 ing that a railroad cannot be sold in parts to satisfy a labor lien; Southern Cali- 
 fornia R. Co. v. Workman, 146 Cal. 85, 79 Pac. 586, 2 A. & E. Ann. Cas. 583, 
 holding that the right of way of a railroad cannot be sold on execution or for a 
 street assessment; Pere Marquette R. Co. v. Smith, 36 Ind. App. 441, 74 X. E. 
 545, holding that a personal judgment is to be rendered to satisfy the lien of a 
 laborer where road is practically completed. 
 
 Cited in note (20 L. R. A. 738) on execution or judicial sale of corporate fran- 
 chise or property necessary to its enjoyment. 
 Liability of corporation for debts of predecessor. 
 
 Cited in Xew York Security & T. Co. v. Louisville, E. & St. L. Con?ol. R. Co. 
 102 Fed. 393, holding that consolidated railroad assumed mortgage indebtedness 
 of constituent company; Berthold v. Holladay-Klotz Land & Lumber Co. 91 Mo. 
 App. 240, holding that judgment creditor of corporation can maintain creditor's 
 bill against another corporation acquiring former's assets; Cleveland, C. C. & St. 
 L. R. Co. v. Prewitt, 134 Ind. 559, 33 N. E. 367, holding consolidated railway 
 subject to liabilities of constituent roads; Louisville Trust Co. v. Louisville. X. A. 
 & C. R. Co. 22 C. C. A. 389, 43 U. S. App. 550, 75 Fed. 443, holding that new 
 railroad corporation after consolidation has attributes of old; Lake Shore & M. 
 S. R. Co. v. Mclntosh, 140 Ind. 269, 38 N. E. 476^ holding present owner of 
 railroad liable for negligent construction of crossing by prior owner; Berry v. Kan- 
 sas City, Ft. S. & M. R. Co. 52 Kan. 775, 39 Am. St. Rep. 381, 36 Pac. 724, holding 
 consolidated railroad liable for tort of constituent company; Morrison v. American 
 Snuff Co. 79 Miss. 338, 89 Am. St. Rep. 598, 30 So. 723, holding consolidated 
 manufacturing company liable for debt of constituent company to salesman : Rand 
 v. Wright, 141 Ind. 236, 39 N. E. 447. holding that partners in new firm assumed 
 liabilities of old; Citizens' Street R. Co. v. Robbins, 144 Ind. 678, 42 N .E. 916, 
 holding that pleading did not disclose assumption of debt; Longview v. Craw- 
 fordsville, 164 Ind. 126, 68 L.R.A. 626, 73 X. E. 78 ; 3 A. & E. Ann. Cas. 496, 
 holding thai where a new corporation is substituted for the original company 
 that the new corporation is liable on liabilities of the old company; Atlantic 
 & B. R. Co. v. Johnson, 127 Ga. 396, 11 L.R.A. (X.S.) 1119, 56 S. E. 482, holding 
 
5H L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 440 
 
 where two corporations consolidate and one goes entirely out of existence and 
 no arrangements are made as to liabilities that consolidated corporation is liable 
 for all liabilities of corporation absorbed. 
 
 Cited in footnote to Busell Trimmer Co. v. Coburn, 69 L.R.A. 821, which holds 
 claim by president manager of corporation for subsequent salary not covered by 
 covenant by purchaser of its business and effects to indemnify it against existing 
 contracts and engagements. 
 
 Cited in notes (5 L. R. A. 727) on succession of consolidated corporation to 
 rights and obligations of its constituents; (23 L. R. A. 231) on liability of consol- 
 idated railroad company for debts of its predecessor; (52 L. R. A. 391) on right 
 of corporations to consolidate; (5 L. R. A. 726) on aivthority conferred on rail- 
 roads to consolidate; (11 L.R.A.(N.S.) 1120, 1121) on effect of consolidation, 
 merger, or absorption of corporation, on unsecured liabilities, in absence of statu- 
 tory or contract provision; (59 Am. St. Rep. 554, 555) as to when corporation 
 becomes liable for debts of preceding corporation or partnership; (89 Am. St. 
 Rep. 624) on succession of consolidated corporation to property, powers, privileges, 
 franchises, etc., of constituent companies; (89 Am. St. Rep. 638) on liability of 
 consolidated company for obligations of constituent companies prior to con- 
 solidation. 
 
 Distinguished in Miles Lamp Chimney Co. v. Erie F. Ins. Co. 164 Ind. 183, 73 
 X. E. 107, holding where old corporation still exists and is not merged into the 
 new that property rights of old do not by mere fact of a change go to the new. 
 Grant of public property without authority. 
 
 Cited in Collett v. Vanderburgh County, 119 Ind. 31, 4 L. R. A. 324, 21 N. E. 
 329, holding public property of corporation cannot be granted away without 
 authority, by those holding it in trust. 
 Federal jurisdiction of consolidated railways. 
 
 Cited in Louisville, N. A. & C. R. Co. v. Louisville Trust Co. 174 U. S. 566, 43 L. 
 ed. 1088, 19 Sup. Ct. Rep. 817, holding that consolidation of railroad of one state 
 with railroad of another does not affect Federal jurisdiction; Grenell v. Ferry, 
 110 Mich. 264, 68 N. W. 144, holding that suit in equity is controlled by situa- 
 tion at time of filing bill. 
 Constitutionality of statutes. 
 
 Cited in Ex parte Walsh, 59 Tex. Crim. Rep. 419, 129 S. W. 118, upholding 
 statute prohibiting betting on horse races. 
 Xatnre of railroad property. 
 
 Cited in note (66 L.R.A. 38, 41) on railroad right of way and superstructure as 
 realty. 
 
 3 L. R. A. 440, LEWARK v. CARTER, 117 Ind. 206, 10 Am. St. Rep. 40, 20 N. E. 
 
 119. 
 Rule caveat emptor as applied in judicial sales. 
 
 Cited in Stearns v. Edson, 63 Vt. 263, 25 Am. St. Rep. 758, 22 Atl. 420, and 
 Norton v. Nebraska Loan & T. Co. 35 Neb. 470, 18 L. R. A. 89, 37 Am. St. Rep. 
 441, 53 N. W. 481, holding rule of caveat emptor applies in all force to all ju- 
 dicial sales. 
 
 Cited in notes (18 L.R.A. 88) on effect of misrepresentation to purchasers by 
 sheriff on judicial sale; (12 Eng. Rul. Cas. 296; 12 Am. St. Rep. 36; 13 Am. St. 
 Rep. 431; 14 Am. St. Rep. 407) on fraudulent representations. 
 
 Disapproved in Dresser v. Kronberg, . 108 Me. 426, 36 L.R.A.(N.S-) 1222, 81 
 Atl. 487, holding that bona fide purchaser at execution sale can recover from 
 
A L.R.A. 440] L. R. A. CASES AS AUTHORITIES. 512 
 
 judgment creditor for money had and received, where property sold belonged to 
 
 third person. 
 
 False representations made in good faith. 
 
 Cited in Marley v. National Bldg. Loan & Sav. Asso. No. 2, 28 Ind. App. 371, 
 
 02 N. E. 1023, dismissing complaint to cancel bond and mortgage because of 
 defendant's representations, not alleging mistake or fraud. 
 
 Amendment to pleading's. 
 
 Cited in Matthews v. Rund, 27 Ind. App. 643, 62 N. E. 90, holding it error to 
 permit amendment after submission, changing issues. 
 
 Distinguished in Thomas v. Hawkins, 13 Ind. App. 331, 40 X. E. 813 (dissent- 
 ing opinion), majority holding that after demurrer it is within court's discre- 
 tion to refuse amendment departing from original cause. 
 Variance. 
 
 Cited in Anderson v. Chilson, 8 S. D. 69, 65 N. W. 435, holding that pleading 
 for equitable relief will not support judgment for damages for breach of contract. 
 
 3 L. R. A. 443, PAUL v. TRAVELERS INS. CO. 112 N. Y. 472, 8 Am. St. Rep. 
 
 758, 20 N. E. 347. 
 Exceptions from liability on accident policy. 
 
 Cited in Fidelity & C. Co. v. Waterman, 161 111. 634, 32 L. R. A. 655, 44 N. E. 
 283, Affirming 59 111. App. 299; Lowenstein v. Fidelity & C. Co. 88 Fed. 475, Af- 
 firmed in 46 L. R. A. 452, 38 C. C. A. 31, 97 Fed. 18; Menneiley v. Employers' 
 Liability Assur. Corp. 148 N. Y. 599, 31 L. R. A. 687, 51 Am. St. Rep. 716, 43 X. 
 E. 54, Reversing 72 Hun, 478, 25 N. Y. Supp. 230, holding death from involun- 
 tary inhalation of illuminating gas accidentally escaping into bedroom, covered 
 by policy in spite of its express provision against liability in case of ''inhaling 
 gas;" Pickett v. Pacific Mut. L. Ins. Co. 144 Pa. 91, 13 L. R. A. 662, 27 Am. 
 St. Rep. 618, 22 Atl. 871, 28 W. X. C. 456, holding exception against injury by 
 "inhalation of gas" does not prevent liability, where death due to breathing gas 
 in shallow well while at work ; Metropolitan Acci. Asso. v. Froiland, 59 111. App. 
 526, and Travelers' Ins. Co. v. Dunlap, 160 111. 645, 52 Am. St. Rep. 355, 43 X. 
 E. 765, Affirming 59 111. App. 518, holding provision for nonliability in case of 
 "taking poison" by insured not cover accidental taking; Railway Officials & E. 
 Acci. Asso. v. Drummond, 56 Xeb. 241, 76 N. W. 562, holding exemption from 
 liability in case of death resulting from intentional acts by third person does not 
 cover injuries by robber, if unintentional; Kasten v. Interstate Casualty Co. 99 
 Wis. 77, 40 L. R. A. 653, 74 X. W. 534, holding exemption in case of poison 
 absorption relieves insurer from liability for death from absorption of septic poi- 
 son in course of dentistry practice; Gresham v. Equitable Acci. Ins. Co. 87 Ga. 
 498, 13 L. R. A. 839, 27 Am. St. Rep. 263, 13 S. E. 752, holding death from vol- 
 untary personal encounter not covered by policy exempting from liability for in- 
 juries received in fighting: Preferred Acci. Ins. Co. v. Robinson, 45 Fla. 533, 61 
 L.R.A. 147, 33 So. 1005, holding eye's absorption of poison within exceptions as to 
 liability; Appel v. .Etna L. Ins. Co. 86 App. Div. 87, 83 X. Y. Supp. 238, holding 
 death from appendicitis caused by contact of appendix with muscle while riding 
 bicycle, not within policy; Travelers' Ins. Co. v. Ayers, 217 111. 392. 2 L.R.A. 
 (X.S.) 170, 75 X. E. 506, holding death by asphyxiation from accidental inhala- 
 tion of gas while asleep not within the provisions of policy exempting the insurer 
 from liability for death resulting directly or indirectly from any gas or vapor; 
 Sullivan v. Modern Brotherhood, 167 Mich. 532, L.R.A.(X.S.) , 133 X. W. 
 486, holding that gonorrheal infection of eye from splashing of water in washing 
 clothes was accident. 
 
 Cited in footnotes to Travelers Ins. Co. v. McCarthy, 11 L. R. A. 297, which 
 

 513 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 443 
 
 holds accident insurance company not liable for intentional injuries by third 
 person; Shevlin v. American Mut. Acci. Asso. 36 L. R. A. 52, which holds jump 
 ing in dark from moving freight train exposure to unnecessary danger; Follis 
 v. United States Mut. Acci. Asso. 28 L. R. A. 78, which holds attempt to cross 
 bridge on ties voluntary exposure to danger; Dozier v. Fidelity & C. Co. 13 L. 
 R. A. 114, which holds sunstroke not bodily injury; Duran v. Standard Life 
 & Acci. Ins. Co. 13 L. R. A. 637, which holds injury by slipping while hunting 
 on Sunday not covered by insurance policy. 
 
 Cited in notes (6 L. R. A. 496) on death of insured by crime; (9 L. R. A. 685) 
 on restrictions as to occupation and employment of insured; (3 L. R. A. 487) on 
 stipulation against suicide or intentional self-destruction; (13 L. R. A. 661) on 
 death of insured from inhaling gas; (1 L.R.A.(N.S.) 423) on injury to insured 
 by own act while asleep as an accident. 
 
 Distinguished in Meehan v. Traders & Travelers Acci. Co. 34 Misc. 160, 68 X. 
 Y. Supp. 821, holding exemption from liability in case of "contact with poison- 
 ous substances" covers injury from carbolic acid thrown in insured's face by third 
 person; McGlother v. Provident Mut. Acci. Co. 32 C. C. A. 320, 60 U. S. App. 705. 
 89 Fed. 687, 690, holding exemption in case of "death resulting from poison'' 
 covers death caused by accidental and unintentional drinking of poison; Early v. 
 Standard Life & Acci. Ins. Co. 113 Mich. 62, 67 Am. St. Rep. 445, 71 N. W. 500. 
 holding exception of "death by poison" covers death from poison administered by 
 druggist through mistake; Porter v. Preferred Acci. Ins. Co. 109 App. Div. 105. 
 95 X. Y. Supp. 682, holding policy provides against voluntary or involuntary 
 inhaling of gas, company is not liable for death caused by involuntary inhaling 
 of gas in a hotel. 
 
 Disapproved in Richardson v. Travelers' Ins. Co. 46 Fed. 844, holding death 
 from inhaling illuminating gas, whether accidental or intentional, within exemp- 
 tion from liability where injury results from "inhaling gas;" Preferred Acci. Ins. 
 Co. v. Robinson, 45 Fla. 533, 61 L.R.A. 147, 33 So. 1005, 3 A. & E. Ann. Cas. 931, 
 holding injury to eye by contact with poisoning not covered by a policy providing 
 no recovery where injury occurred by poison. 
 ''Accidental" death of inttnred. 
 
 Cited in Tucker v. Mutual Ben. Life Co. 50 Hun, 53, 4 N. Y. Supp. 505, holding 
 death by drowning in storm through capsizing of rowboat accidental ; Wehle v. 
 United States Mut. Acci. Asso. 153 N. Y. 122, 60 Am. St. Rep. 598, 47 X. E. 35, 
 holding death by drowning while bathing accidental; Healey v. Mutual Acci. 
 Asso. 133 111. 563, 9 L. R. A. 373, 23 Am. St. Rep. 637, 25 X. E. 52, holding death 
 from accidentally drinking poison covered by policy insuring against death by 
 "external, violent, and accidental means;" American Acci. Co. v. Reigart, 94 Ky. 
 551, 21 L. R. A. 652, 42 Am. St. Rep. 374, 23 S. W. 191, holding death resulting 
 from lodgment of food in windpipe while eating accidental ; Pickett v. Pacific 
 Mut. L. Ins. Co. 144 Pa. 91, 13 L. R. A. 662, footnote p. 661, 2& W. X. C. 456, 
 27 Am. St. Rep. 618, 22 Atl. 871, holding death by inhalation of gas at bottom of 
 shallow well accidental; Western Commercial Travelers Asso. v. Smith, 40 L. R. 
 A. 657, 29 C. C. A. 228, 56 U. S. App. 393, 85 Fed. 406, holding death by blood 
 poisoning, resulting from abrasion of skin of toe by wearing new shoe, accidental ; 
 Williams v. United States Mut. Acci. Asso. 38 X. Y. S. R. 380, 14 X. Y. Supp. 
 728, holding question of intentional death of insured for jury, where deceased 
 went upon railroad tracks in front of slowly approaching train ; Travelers Ins. 
 Co. v. Hunter, 30 Tex. Civ. App. 493, 70 S. W. 798, sustaining company's liability 
 where accidental injury causes rheumatism which causes death; Travelers' Ins. 
 Co. v. Hunter, 30 Tex. Civ. App. 493, 70 S. W. 798, holding death by accidental 
 .means where accidental injury produced rheumatism which caused death; Jenkins 
 L.R.A. An. Vol. L 33. 
 
3 L.R.A. 443] L. R. A. CASES AS AUTHORITIES. 514 
 
 v. Hawyeye Commercial Men's Asso. 147 Iowa, 116, 30 L.R.A.(N.S.) 1183, 124 X. 
 W. 199, holding death from swallowing fish bone accidental, though direct cause 
 was blood poison; Pervangher v. Union Casualty & Surety Co. 85 Miss. 35, 37 So. 
 461, holding an allegation of a death from accidental external means resulting in 
 internal injury sufficient to come within a death from "accidental means;" X. W. 
 Commercial Travellers' Asso. v. London Guarantee & Acci. Co. 10 Manitoba L. 
 Rep. 551, holding death by freezing is death through external, violent and acci- 
 dental means within meaning of policy. 
 
 Cited in footnotes to Fidelity & C. Co. v. Loewenstein, 46 L. R. A. 450, which 
 holds death by accidentally inhaling gas while asleep covered by a'ccident policy; 
 I\Ienneiley v. Employers' Liability Assur. Corp. 31 L. R. A. 686, which holds death 
 by inhaling illuminating gas while asleep covered by accident policy; Jarnagin v. 
 Travelers' Protective Asso. 68 L.R.A. 499, which holds that failure of police 
 officers to protect insured while in their charge from assaults by other persons will 
 not take his killing out of provision against recovery in case of death from 
 intentional injuries. 
 
 Cited in notes (9 L. R. A. 371) on death of insured by external, violent, and 
 accidental means; (30 L. R. A. 206, 212) on what constitutes an accident within 
 meaning of accident insurance policy; (30 L.R.A. (N.S.) 1182) on death or injury 
 from substance taken internally as caused by external means; (12 Am. St. Rep. 
 272) on death by voluntary exposure to unnecessary danger, etc.; (52 Am. St. 
 Rep. 364) on effect of insured's taking poison. 
 
 Distinguished in Bacon v. United States Mut. Acci. Asso. 123 N. Y. 308, 9 L. 
 R. A. 618, footnote p. 617, 20 Am. St. Rep. 748, 25 N. E. 399, holding death from 
 malignant pustule as result of accidental contact with diseased animal matter, 
 death from disease, not accident; Carnes v. Iowa State Traveling Men's Asso. 106 
 Iowa. 285, 68 Am. St. Rep. 306, 76 N. W. 683, holding death from overdose of 
 morphine, intentionally taken but in ignorance of effect, not accidental; Feder 
 v. Iowa State Traveling Men's Asso. 107 Iowa, 540, 43 L. R. A. 694, 70 Am. St. 
 Rep. 212, 78 N. W. 252, holding death due to rupture of blood vessel, caused by 
 voluntary act, not accidental; Schmid v. Indiana Travelers' Acci. Asao. 42 Ind. 
 App. 494. 85 N. E. 1032, holding death from paralysis caused by carrying bas- 
 gage up a long flight of stairs not a death from "accidental means." 
 
 Disapproved in Healy v. Mutual Acci. Asso. 35 111. App. 20, holding death by 
 accidental taking of chloral not accidental. 
 
 Visible siun.s of injury. 
 
 Cited in Freeman v. Mercantile Mut. Acci. Asso. 156 Mass. 354, 17 L. R. A. 755, 
 30 N. E. 1013, upholding instruction declaring it sufficient if symptoms or signs 
 became visible upon inspection of interior of body after death; Bernays v. United 
 States Mut. Acci. Asso. 45 Fed. 457. holding bad, answer based on lack of visible 
 marks of injury, where death resulting from erysipelas caused by accidental cut, 
 admitted: Root v. London Guarantee & Acci. Co. 92 App. Div. 583, 86 N. Y. 
 Supp. 1055. holding insured's pallor and emaciated condition "visible signs of in- 
 jury" within policy; Travelers' Ins. Co. v. Avers, 119 111. App. 406. holding policy 
 excepting injuries of which there is no visible mark on body not to apply to 
 invohintary death by asphyxiation; Rosenthr.l v. American Bonding Co. 143 
 App. Div. 367, 128 N. Y. Supp. 553. upholding recovery on burglary insurance 
 policy requiring visible signs of forcible entry, where burglars opened unlocked 
 door. 
 
 Cited in note (9 L. R. A. 687) on external visible sign of injury as essential 
 to right of recovery. 
 Construction of conditions in insurance policy. 
 
 Cited in Wehle v. United States Mut. Acci. Asso. 153 N. Y. 122, 60 Am. St. 
 
515 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 447 
 
 Hep. 598, 47 X. E. 35, holding reservation to company of right to view body of 
 deceased strictly construed to require exercise of right within reasonable time; 
 Rapid Safety Fire Extinguisher Co. v. Hay-Budden Mfg. Co. 37 Misc. 560, 75 X. 
 Y. Supp. 1008 (dissenting opinion), as to construing words most strictly against 
 party using them; Wright v. Fire Ins. Co. 12 Mont. 483, 19 L. R. A. 219, 31 
 Pac. 87, holding that provision voiding policy in case of mortgage on merchandise 
 applies only to merchandise and does not affect other chattels covered thereby; 
 -Etna L. Ins. Co. v. Fitzgerald, 165 Ind. 321, 1 L.R.A. (X.S.) 425, 112 Am. St. Rep. 
 232, 75 X. E. 262, 6 A. & E. Ann. Cas. 551, holding that interpretation giving pro- 
 tection is to be preferred; Continental Casualty Co. v. Colvin, 77 Kan. 568, 95 Pac. 
 565; Garvey v. Phoenix Preferred Acci. Ins. Co. 123 App. Div. 109, 108 N. Y. Supp. 
 186; Sinclair v. National Surety Co. 132 Iowa, 557, 107 N. W. 184, holding that 
 an ambiguous term in policy is to be construed against insurance company; 
 Peterson v. Modern Brotherhood, 125 Iowa, 572, 67 L.R.A. 635, 101. X. W. 289 
 (dissenting opinion), on construction of a policy in favor of assured; Schumacher 
 v. Great Eastern Casualty & Indemnity Co. 197 X. Y. 61, 27 L.R.A.(N.S.) 482, 90 
 X. E. 353, holding a general requirement as to external, violent and accidental 
 means does not apply to a separate provision as to liability in case of death from 
 certain specified causes. 
 
 Cited in footnotes to Humphreys v. Xational Ben. Asso. 11 L. R. A. 564, which 
 holds loss of sight of only eye covered by provision for loss of sight of both eyes; 
 Dailey v. Preferred Masonic Mut. Acci. Asso. 26 L. R. A. 171, which holds risk 
 of getting on and off moving train by passenger conductor covered by accident 
 policy; Eury v. Standard Life & Acci. Ins. Co. 10 L. R. A. 534, which holds no- 
 tice necessary before forfeiture of policy for nonpayment of premium. 
 
 Cited in notes (13 L. R. A. 264) on burden of proving breach of condition in 
 policy; (10 L. R. A. 383) on conditions in policy as to increase of risk by change 
 in occupation; (17 L. R. A. 754) on proximate cause of death within meaning of 
 life insurance policy; (14 Eng. Rul. Cas. 22, 25) on rules for construing insurance 
 policies. 
 Construction of contracts. 
 
 Cited in Gunther v. Marteau, 73 Misc. 44, 132 X. Y. Supp. 82, construing writ- 
 ing, acknowledging loan and providing that in case of accident or death of signer 
 lender has right to claim amount from his estate, as loan payable on demand. 
 
 Cited in note (16 Am. St. Rep. 306) on construction of contracts. 
 
 3 L. R. A. 447, YOUMANS v. WAGEXER, 30 S. C. 302, 9 S. E. 106. 
 Inchoate right of dotver. 
 
 Cited in Scheuer v. Chloupek, 130 Wis. 79, 109 N. W. 1035, holding inchoate 
 right of do\ver ceases where party entitled to dower accepts a deed of fee. 
 
 Cited in footnote to Hart v. Burch, 6 L. R. A. 371, which holds ineffectual, 
 release of dower to one having no title. 
 
 Distinguished in Davis v. Townsend, 32 S. C. 114, 10 S. E. 837, holding convey- 
 ance to trustee to use of wife does not merge inchoate right of dower; Huff v. 
 Wheeler, 27 Misc. 768, 59 X. Y. Supp. 716, holding inchoate right of dower un- 
 extingui.shable except by death or wife's conveyance. 
 Merger of estates. 
 
 Cited in note (99 Am. St. Rep. 157) on merger of estates. 
 
 Distinguished in Beachamp v. Bertig. 90 Ark. 368, 23 L.R.A.(X.S.) 665, 119 S. 
 W. 75. holding that doctrine of merger does not apply where equities would 
 thereby be defeated; McCreary v. Coggeshall, 74 S. C. 57, 7 T-.R.A.(X.S.) 442, 53 
 S. E. 978. 7 A. & E. Ann. Cas. 693, holding that a merger will not take place 
 where a contrary intention affirmatively appearg. 
 
3 L.R.A. 449] L. R. A. CASES AS AUTHORITED. 516 
 
 3 L. R. A. 449, WESTERN U. TELEG. CO. v. NEW YORK, 2 Inters. Com. Rep. 
 
 533, 38 Fed. 552. 
 Acts and ordinances regulating- use of electric wires. 
 
 Cited in Richmond v. Southern Bell Teleph. & Teleg. Co. 28 C. C. A. 665, 42 U. 
 S. App. 686, 85 Fed. 25, holding right of telephone company to use streets for 
 wires subject to police power of city; United States Illuminating Co. v. Grant, 55 
 Hun, 238, 8 N. Y. Supp. 788 (concurring opinion), as to constitutionality of act 
 authorizing "board of control" to regulate use of electric wires in city highways; 
 American Rapid Teleg. Co. v. Hess, 125 N. Y. 651, 13 L. R. A. 458, 21 Am. St. 
 Rep. 764, 26 N. E. 919, holding legislative acts providing for regulation of electric 
 wires in streets constitutional; Western U. Teleg. Co. v. Mellon, 100 Tenn. 434, 
 45 S. W. 443, holding telegraph company liable for negligence in failing to deliver 
 message, although engaged in interstate commerce; State ex rel. Wisconsin 
 Teleph. Co. v. Janesville Street R. Co. 87 Wis. 78, 22 L. R. A. 763, 41 Am. St. Rep. 
 23, 57 N. W. 970, holding ordinance regulating stringing of electric wires in city 
 reasonable exercise of police power; O'Brien v. Erie, 20 Pa. Co. Ct. 343, 7 Pa. 
 Dist. R. 495, and Geneva v. Geneva Teleph. Co. 30 Misc. 242, 62 N. Y. Supp. 172, 
 holding municipality may order electric wires under ground and poles taken from 
 streets; State v. Western U. Teleg. Co. 43 Mont. 449, 117 Pac. 93, holding that 
 state cannot tax right of telegraph company to transact business as agent of 
 government. 
 
 Cited in footnote to Northwestern Teleph. Exch. Co. v. Minneapolis, 53 L. R. A. 
 175, which requires council's discretion in compelling telegraph company to put 
 under ground wires placed overhead under ordinance, to be reasonably exercised. 
 
 Cited in notes (5 L. R. A. 161) on state regulation of telephone companies; 
 (8 L. R. A. 854) on private interests subservient to public interests; (10 L. R 
 A. 497) on legislative control of electric wires in city streets; (13 L. R. A. 454) 
 on telegraph companies subject to police power of municipalities; (24 L. R. A. 
 165) on power of states to control or impose burdens on interstate telegraph and 
 telephone companies; (31 L. R. A. 804, 805) on police regulation of electric com- 
 panies; (34 L. R. A. 370) on grant of franchises to electrical subway companies. 
 
 Distinguished in St. Louis v. Western U. Teleg. Co. 39 Fed. 60, holding license 
 tax on telegraph poles not valid "regulation." 
 Patent rights. 
 
 Cited in note (29 L. R. A. 792) on power of state to restrict and regulate 
 sale or enjoyment of patent rights. 
 Franchise rights in streets. 
 
 Cited in People ex rel. New York Electric Lines Co. v. Ellison, 188 N. Y. 534, 
 81 N. E. 447, holding that legislature had power, to authorize the laying of elec- 
 trical conduits underground though it had authorized another company to do 
 same. 
 
 Cited in note (14 L.R.A.(N.S.) 655, 656) on right to require underground tele- 
 graph or telephone wires. 
 
 Questioned in Sunset Teleph. & Teleg. Co. v. Pomona, 164 Fed. 571, holding 
 that a city has a right to remove poles and wires from street where franchise 
 has expired. 
 
 3 L. R. A. 455, McDERMOTT v. CHICAGO & N. W. R. CO. 38 Fed. 529. 
 Removal of cause. 
 
 Cited in note (11 L. R. A. 568) on removal of cause for prejudice or local 
 influence. 
 
517 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 464 
 
 3 L. R. A. 458, SAWYER v. McGILLICUDDY, 81 Me. 318, 10 Am. St. Rep. 260, 
 
 17 Atl. 124. 
 Who shonld repair leased property. 
 
 Cited in O'Connor v. Andrews, 81 Tex. 34, 16 S. W. 628, holding owner of build- 
 ing leased to several tenants liable for injury to passerby occasioned by fall of 
 cornice and fire wall; Foren v. Rodick, 90 Me. 279, 38 Atl. 175, holding owner of 
 office building liable for injury to third person, occasioned by unguarded cellar- 
 way near main entrance; Abbott v. Jackson, 84 Me. 459, 24 Atl. 900, holding 
 landlord not liable to third person for neglect in keeping in repair railroad cross- 
 ing used exclusively by tenant; La Plante v. La Zear, 31 Ind. App. 438, 68 N. E. 
 312, holding landlord liable for failure to repair steps of apartment house; Burner 
 v. Higman & S. Co. 127 Iowa, 590, 103 N. W. 802, holding tenant liable to sub- 
 tenant of portion of building for failure to properly guard elevator where subten- 
 ant is removing stored goods; Perrine v. Union Stock Yards Co. 81 Neb. 793, 116 
 X. W. 776, holding stockyard company liable for negligent maintenance of an 
 alley through which it invited tenants using yards to pass; Oerter v. Zeigler, 
 59 Wash. 424, 109 Pac. 1058, holding that landlord of office building is not bound 
 to keep free from ice steps leading to basement leased to different tenants; 
 Weaver Mercantile Co. v. Thurmond, 68 W. Va. 536, 33 L.R.A.(N.S.) 1065, 70 S. 
 E. 126. holding the landlord is bound to prevent water from escaping from tank 
 which supplies several rented houses. 
 
 Cited in notes (14 L. R. A. 239) on responsibility of landlord for injuries re- 
 sulting from defects in portions of building remaining in his possession; (23 L. 
 R. A. 156) on liability of landlord as to condition of part of premises not con- 
 trolled by tenant; (3 L.R.A.(N.S.) 316) on liability of landlord for injury in com- 
 mon passageway; (20 Am. St. Rep. 654) on necessity of keeping leased premises 
 in repair: (9 Eng. Rul. Cas. 458) on implied obligation of landlord to repair, and 
 implied warranty of fitness of premises for purposes for which they are let. 
 
 Distinguished in McKenzie v. Cheetham, 83 Me. 549, 22 Atl. 469, holding that 
 guest of sole tenant cannot recover against landlord for personal injury due to 
 defective stairway. 
 
 3 L. R. A. 460, KIXGSBURY v. MATTOCKS, 81 Me. 310, 17 Atl. 126. 
 "Alabama" claimants. 
 
 Cited in Taft v. Marsily, 120 N. Y. 478, 24 N. E. 926, holding that assignee in 
 bankruptcy did not take amount of award by Alabama claims commission. 
 
 Cited in footnote to Manning v. French, 4 L. R. A. 339, which holds commis- 
 sioners of Alabama claims authorized to remove unfit attorney. 
 
 Cited in note (13 L. R. A. 259) on judges of court of commissioners of Ala- 
 bama claims. 
 
 Overruled in effect in Williams v. Heard, 140 U. S. 536, 35 L. ed. 553, 11 Sup. 
 Ct. Rep. 885, holding Alabama award passed to assignee in bankruptcy. 
 BanUrnptcy as affecting: claims auniiist sovereign. 
 
 Cited in Campbell v. United States, 28 Ct. Cl. 513, holding claims for property 
 seized by army in the seceded states during civil war do not pass in bankruptcy 
 and may be prosecuted by the original claimant. 
 
 3 L. R. A. 464, PEOPLE v. SHERWOOD, 113 N. Y. 174, 21 N. E. 87. 
 Succession tax. 
 
 Followed without opinion in Re Hall, 29 N. Y. S. R. 367. 8 N. Y. Supp. 55ft 
 Cited in Ruckgaber v. Moore, 104 Fed. 955. holding United States war tax 01 
 1898, imposing tax on estates passing under inheiitance laws of "state or terri- 
 tory," does not burden estate distributable by law of foreign country ; Re Bronson, 
 
3 L.R.A. 464] L. R. A. CASES AS AUTHORITIES. 518 
 
 150 N. Y. 11, 34 L. R. A. 242, 55 Am. St. Rep. 632, 44 X. E. 707, Modifying 
 1 App. Div. 548, 37 N. Y. Supp. 476, holding stock but not bonds of local corpo- 
 ration, held by nonresident owner at domicil, subject to inheritance tax; Re 
 Miller, 77 App. Div. 479, 78 N. Y. Supp. 930, holding antenuptial transfer and 
 retransfer in trust not taxable; Re Wolfe, 89 App. Div. 351, 85 N. Y. 
 Supp. 949, holding refused legacy, which passes to residuary legatee, not taxable 
 at same rate as if accepted; State ex rel. Floyd v. District Ct. 41 Mont. 368. 100 
 Pac. 438, holding inheritance tax law constitutional. 
 
 Cited in note (127 Am. St. Rep. 1096) on inheritance taxation. 
 Jurisdiction of surrogate thereunder. 
 
 Cited in Re Ullmann, 137 N. Y. 407, 33 N. E. 480, holding it within surro- 
 gate's jurisdiction and duty to determine all matters arising in distribution of 
 estate under will or under statute of distribution; Re Embury. 19 App. Div. 
 215, 79 N. Y. S. R. 882, 45 N. Y. Supp. 881, holding surrogate's court without 
 jurisdiction to impose tax on personalty of nonresident decedent, where no realty 
 within county. 
 Construction of succession tax act. 
 
 Cited in Re Harbeck, 161 N. Y. 217, 55 X. E. 850, holding bequests in execution 
 of power created by will in force prior to inheritance tax law not subject to tax ; 
 Re Vassar, 127 N. Y. 12, 27 N. E. 394, holding that provision of tax exempting 
 from its operation institutions "now exempt from taxation" covers hospital 
 whose charter exempts all personalty, although realty outside hospital buildings 
 remained subject; Re Sherwell, 11 X. Y. Supp. 897, holding share of each legatee 
 entitled to deduction of $500, and balance only subject to inheritance tax laws 
 of 1887, chap. 713: Re Kimberly, 27 App. Div. 473, 50 N. Y. Supp. 586, holding 
 legacy to charitable organization, the property of which is exempt from taxation, 
 not subject to transfer tax imposed by Laws 1896, chap. 908, 220; Re Hunting- 
 ton, 34 Misc. 512, 70 N. Y. Supp. 429, holding specially exempted corporation 
 not subject to transfer tax by Laws 1896, art. 2, as amended by Laws 1900, 
 chap. 382, 2; People ex rel. Young Men's Asso. v. Sayles, 32 App. Div. 201, 
 53 N. Y. Supp. 67, holding property of corporation organized solely for benevo- 
 lent purposes subject to taxation where not "exclusively used" in furtherance of 
 such ends; Re Howell, 34 Misc. 435, 69 X. Y. Supp. 1016, holding remainders to 
 children surviving at death of mother, contingent, and not subject to tax; 
 Hoffman's Estate, 5 Misc. 441, 26 N. Y. Supp. 888, holding determination of 
 liability of estate to taxation under Laws 1892. chap. 399, governed by value of 
 personalty passing to legatees not exempted; People v. Griffith, 245 111. 539, 92 
 X. E. 313, holding that definition of what property of nonresidents is subject to 
 inheritance tax should not be extended beyond clear import of language; Re 
 Stebbins, 52 Misc. 441, 103 X. Y. Supp. 563, holding that property cannot be sub- 
 jected to an inheritance tax without the clear warrant of law; Re Clark, 2 
 Connoly, 184, 9 X. Y. Supp. 444, holding a bank account and a bond and morts:a2re 
 of a nonresident subject to inheritance tax; State ex rel. Gage v. Probate Ct. 112 
 Minn. 285, 128 X. W. 18, holding that inheritance tax is to be computed on valuo, 
 at time of decedent's death, of beneficiary's interest; Tilford v. Dickinson. 70 X 
 J. L. 304, 75 Atl. 574, holding that executor cannot relieve property within state 
 from taxation by applying it to exempt legacies and by paying taxable legacies 
 from foreign property; Re Arnot. 145 App. Div. 714. 130 X. Y. Supp. 499. holding 
 bequests to art gallery not taxable. 
 
 Cited in footnote to Re Swift, 18 L.R.A. 709. as to what is subject to suc- 
 cession tax. 
 
 Cited in notes (4 L. R. A. 171) on succession tax as tax on property; (12 
 L. R. A. 402) on succession taxes under Xew York statutes. 
 
519 L. R. A. CASES AS AUTHORITIES. [3 L.R.A 464 
 
 Distinguished in Re Embury, 20 Misc. 79, 45 N. Y. Supp. 821, holding that 
 where intention to tax is clear, liberal construction in favor of provisions for 
 enforcement of tax prevails; Re Stewart, 131 X. Y. 282, 14 L. R. A. 840, 30 X. E. 
 184, Reversing 61 Hun, 547, 16 X. Y. Supp. 388, holding appraisal of contingent 
 interests may be made at time of vesting after decedent's death, under power of 
 surrogate to appoint appraiser "whenever occasion requires." 
 Situs of stocka and bonds. 
 
 Cited in Re Corning, 3 Misc. 162, 1 Power, 180, 23 X. Y. Supp. 285, holding 
 mortgage bonds on foreign property kept outside state, subject to inheritance tax 
 on estate of resident; Re James, 144 N. Y. 10, 43 Am. St. Rep. 725, 38 X. E. 961, 
 Affirming 77 Hun, 214, 28 N. Y. Supp. 351, Reversed in 6 Misc. 206, 1 Power, 604, 
 holding stocks and bonds of foreign corporations kept on deposit in state by 
 nonresident decedent have situs at domicil of corporation or of shareholder: 
 Re dishing, 40 Misc. 505, 82 X. Y. Supp. 792, holding Xew York national bank 
 stock of nonresident taxable; Re Bishop, 82 App. Div. 116, 81 X. Y. Supp. 474, 
 holding stock in foreign corporation taxable if owner resident; Re Gibbes, 84 
 App. Div. 512, 83 X. Y. Supp. 53, holding not taxable bonds owned by deceased 
 nonresident in foreign corporation, which passed to nonresident; dissenting opin- 
 ion in Re Whiting, 150 N. Y. 33, 34 L. R. A. 235, 55 Am. St. Rep. 640, 44 X. E. 
 715, Modifying 2 App. Div. 592, 38 X. Y. Supp. 131, majority holding bonds of 
 foreign corporations kept by nonresident owner on deposit within state subject 
 to inheritance tax; Xeilson v. Russell, 76 X. J. L. 656, 19 L.R.A.(X.S.) 887, 131 
 Am. St. Rep. 673, 71 Atl. 266, holding inheritance tax not to apply to stock of a 
 Xew Jersey corporation belonging to a testator domiciled in England. 
 
 Cited in notes (19 L.R.A. (X.S.) 888, 889) on transfer tax in respect of stock in 
 domestic corporation belonging to estate of nonresident; (62 Am. St. Rep. 455) 
 on situs of personal property for purposes of taxation. 
 
 Distinguished in Re Leopold, 35 Misc. 370, 71 X. Y. Supp. 1032, holding 
 funds forwarded to bank in state for purpose of purchase of stock in foreign 
 corporation not subject to tax, though deceased died before transaction com- 
 pleted; Eidman v. Martinez, 184 U. S. 587, 46 L. ed. 703, 22 Sup. Ct. Rep. 
 515, holding corporate bonds in hands of local agent of foreign intestate not 
 subject to war tax of 1898, providing for tax on personalty passing under laws 
 of "any state" where governed by foreign law; Xeilson v. Riissell, 76 X. J. L. 32, 
 69 Atl. 476, holding act to extent to stock of a Xew Jersey corporation held by a 
 nonresident passing by will. 
 
 Cited as changed by statute in Re Romaine, 127 X. Y. 83, 12 L. R. A. 405, 
 27 X. E. 759, Affirming 58 Hun, 110, 11 X. Y. Supp. 313, holding stocks and 
 bonds of deceased nonresident, deposited in Xew York for safe keeping, have local 
 situs for purpose of taxation under amended (1887) inheritance tax. 
 
 Qualified in Re Swift, 137 X. Y. 83, 18 L. R. A. 711, 32 N. E. 1096, Reversing 
 2 Connoly, 650, 16 X. Y. Supp. 193, holding personalty of resident decedent situ- 
 ated out of state subject to tax, although proceeds of realty out of state brought 
 in for distribution not subject. 
 Construction of special tax provisions. 
 
 Cited in Re Starbuck, 63 Misc. 159, 116 X. Y. Supp. 1030, holding that to bring 
 property within provisions of a special tax it must be shown that property is 
 clearly within its provisions; People ex rel. McKnight v. Union Bag & Paper Co. 
 63 Misc. 134, 118 X. Y. Supp. 456. holding that if there is any doubt that certain 
 property is subject to a special tax the property should not be taxed; Re Kennedy, 
 113 App. Div. 6. 99 X. Y. Supp. 72, holding that a transfer tax should be strictly 
 const rue- 1: Re Mergentime, 129 App. Diy. 374. 113 X. Y. Supp. 948, holding a 
 bequest of personal property to an art museum not within transfer tax. 
 
3 L.R.A. 464] L. R. A. CASES AS AUTHORITIES. 520 
 
 Deceased's residence. 
 
 Cited in Re Vinot, 26 N. Y. S. R. 611, 7 N. Y. Supp. 517, and James's Estate, 
 6 Misc. 207, 27 N. Y. Supp. 288, holding nonresidence of deceased imma- 
 terial under inheritance tax law as amended in 1887. 
 Exemption. 
 
 Cited in Eidman v. Martinez, 184 U. S. 583, 46 L. ed. 701, 22 Sup. Ct. Rep, 
 515, dictum to effect that rule regarding proof of exemption from general taxa- 
 tion differs from rule regarding proof of nonliability to special taxation. 
 
 3 L. R. A. 468, FIRST PRESBY. CHURCH v. COOPER, 112 N. Y. 517, 8 Am. 
 
 St. Rep. 767, 20 N. E. 352. 
 Wben promise to pay binding-; consideration. 
 
 Cited in Keuka College v. Ray, 167 N. Y. 100, 60 N. E. 325, Affirming 41 App. 
 Div. 202, 58 N. Y. 745, holding that founding of college makes subscription in 
 consideration thereof binding; Irwin v. Lombard University, 56 Ohio St. 19, 36 
 L. R. A. 241, 60 Am. St. Rep. 727, 46 N. E. 63. holding that founding of a pro- 
 fessorship on strength of subscriptions rendered them binding; Lasar v. Johnson, 
 125 Cal. 553, 58 Pac. 161, holding subscription followed by obligation incurred 
 on strength of request binding; Martin v. Meles, 179 Mass. 116, 60 N. E. 397, 
 sustaining right to recover on subscription contribution to fund to carry on 
 litigation, after expense has been incurred; Johnson v. Tennessee Oil, etc. Co. 
 74 X. J. Eq. 41, 69 Atl. 788, holding an agreement to voluntarily contribute, 
 enforceable where obligations are inciirred in reliance on promise: Keuka College 
 v. Ray, 41 App. Div. 202, 58 N. Y. Supp. 745, holding a note given to a corpora- 
 tion as an inducement to a third party to make a gift to it is enforceable where 
 gift is so made; Commercial Travelers' Home Asso. v. McXamara, 95 App. Div. 
 4, 88 N. Y. Supp. 443, on when voluntary subscriptions are binding. 
 
 Cited in footnote to Ballard v. Burton, 16 L. R. A. 664, which holds forbearance 
 to withdraw money from bank consideration for third person signing certificate 
 of deposit as surety. 
 
 Cited in notes (3 L. R. A. 762) on consideration for contract; (12 L. R. A. 
 465) on good consideration for contract; (3 L. R. A. 859) on interpretation of 
 words in contract; (39 Am. St. Rep. 745) on moral obligation as consideration to 
 uphold express promise. 
 
 Distinguished in Gerard v. Cowperthwait, 2 Misc. 379, 21 N. Y. Supp. 1092. 
 holding consideration for giving bond under seal, complete on its face, could not 
 be inquired into; Commercial Travelers' Home Asso. v. McXamara, 42 Misc. 259, 
 86 X. Y. Supp. 608, sustaining corporation's right to compel treasurer to pay over 
 fund contributed. 
 'When promise to pay not binding 1 . 
 
 Cited in Rev v. Equitable L. Assur. Soc. 16 App. Div. 203, 44 N. Y. Supp. 745. 
 holding recovery cannot be had on life policy for which no consideration was 
 paid; Myers v. Dean, 11 Misc. 370, 32 X. Y. Supp. 237, holding promise without 
 consideration, made after services performed gratuitously, will not support 
 action; Hull v. Pearson, 38 App. Div. 593, 56 X. Y. Supp. 518, holding gratuitous 
 subscription in behalf of educational institution not binding: Twenty-third Street 
 Baptist Church v. Cornell, 117 X. Y. 604, 6 L. R. A. 807, 23 X. E. 177, holding 
 that invalid gratuitous subscription to church building fund cannot be validated 
 by erecting church after death of subscriber : Davis v. Bronson, 2 X. D. 309. 
 16 L. R. A. 659, 33 Am. St. Rep. 783, 50 X. Vs . S36, holding erection of creamery 
 under contract, after refusal by other party to perform, gave no right of recovery 
 on contract price; People's Bank & T. Co. v. Weidinger, 73 X. J. L. 438. 64 AtL 
 
S21 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 472 
 
 179, holding a gratuitous promise for benefit of a third party not binding where 
 not acted upon by other parties in reliance thereon. 
 
 Cited in footnote to Rogers v. Galloway Female College, 39 L. R. A. 636, which 
 construes subscription to obtain location of college "at" or "in" certain town 
 does not require placing it within corporate limits. 
 
 Cited in notes (6 L. R. A. 807) on unenforceable contracts; (12 L. R. A. 464) 
 on enforceability of mere voluntary promise. 
 Prerequisite conditions precedent. 
 
 Cited in Sager v. Gonnerman, 50 Misc. 506, "100 X 1 . Y. Supp. 406, holding re- 
 covery upon a contract upon condition precedent can be had only upon a showing 
 of strict performance by party in whose favor the provision is made. 
 
 3 L. R. A. 472, LAND, LOG & LUMBER CO. v. BROWN, 73 Wis. 294, 40 N. W. 
 
 482. 
 Relation of court to other departments. 
 
 Cited in Grunert v. Spalding, 104 Wis. 208, 78 N. W. 606, refusing to disturb 
 town as created by county board, though of irregular shape, where it is one 
 continuous tract; People ex rel. Woodyatt v. Thompson, 155 111. 470, 40 N. E. 307, 
 holding that courts will not revise apportionment act on ground that senatorial 
 districts created are not as compact as possible. 
 Special legislation. 
 
 Cited in Wagner v. Milwaukee County, 112 Wis. 606, 88 N. W. 577, holding 
 act providing for construction of viaducts in counties invalid, if applicable to 
 one county only; State ex rel. Busacker v. Groth, 132 Wis. 297, 112 N. W. 
 431, sustaining a general law applicable to all counties of a certain population; 
 Bingham v. .Milwaukee County, 127 Wis. 349, 106 N. W. 1071, holding a classifica- 
 tion of counties by population to be proper; Smith v. Burlington, 129 Wis. 341, 
 109 X. W. 79, holding classification of municipalities according to population for 
 purpose of conferring powers to be proper ; State ex rel. Scanlan v. Archibold, 146 
 Wis. 371, 131 N. W. 895, holding valid, act providing for election of one super- 
 visor in each assembly district in counties of certain population. 
 
 Cited in footnotes to State, Alexander, Prosecutor, v. Elizabeth, 23 L. R. A. 
 525, which holds invalid special statute discriminating between municipalities 
 already having, and those not having, racecourse; Com. ex rel. Jones v. Blackley, 
 52 L. R. A. 367, which sustains classification of townships by density of popu- 
 lation ; Milwaukee County v. Isenring, 53 L. R. A. 635, which holds act regulating 
 sheriff's fees for particular county, local. 
 
 Cited in note (7 L. R. A. 193) on constitutionality of classification of cities 
 i>y statute. 
 "What property taxable. 
 
 Cited in Torrey v. Baldwin, 3 Wyo. 441, 26 Pac. 908, holding certain personal 
 property within county taxable. 
 
 Cited in footnote to Hamilton County v. Rasche Bros. 19 L. R. A. 584, which 
 holds statute as to taxes, not applying to all parts of state, unconstitutional. 
 
 Cited in notes (34 L. R. A. 197) on municipal taxation of rural lands within 
 limits of corporation; (14 L. R. A. 475) on public purposes for which money may 
 "be appropriated or raised by taxation; (61 L. R. A. 51) on taxation for mu- 
 nicipal water supply. 
 n---ii:i-t inii of statute. 
 
 Cited in Garland v. Hickey, 75 Wis. 183, 43 X. W. 832, upholding, as re- 
 enactment, act extending to other county existing act applicable to other counties. 
 
3 L.R.A. 472] L. R. A. CASES AS AUTHORITIES. 522 
 
 Power of towns and boroughs. 
 
 Cited in Washburn Waterworks Co. v. Washburn, 129 Wis. 80, 108 N. W. 194, 
 holding that a town board could be given power to contract for water for unin- 
 corporated towns of a certain class; Bennett v. Nebagamon, 122 Wis. 299, 99 
 X. W. 1039, holding a resolution of the electors of a town sufficient to adopt the 
 provisions of a statute permitting town authorities to assume powers of village 
 board. 
 
 Cited in footnote to Haupt's Appeal, 3 L. R. A. 536, which holds that borough 
 cannot furnish any of water supply to other municipality. 
 
 3 L. R. A. 476, STATE ex rel. BAYHA v. KANSAS CITY CT. OF APPEALS, 
 
 97 Mo. 331, 10 S. W. 855. 
 Dismissal of appeal. 
 
 Cited in Stauffer v. Salimonie Min. & Gas. Co. 147 Ind. 74, 46 N. E. 342, 
 holding that where controversy has been terminated by acts of appellant appeal 
 will be dismissed; Re Hutton, 92 Mo. App. 138, holding settlement after appeal 
 not ground for dismissal where amount received by appellant is due him, inde- 
 pendent of claim in suit; Miller v. Continental Assur. Co. 233 Mo. 97, 134 S. 
 W. 1003, holding that removed officers of insurance company against whom no 
 personal judgment was rendered cannot object to attorneys for company moving 
 that appeal by it be dismissed; Hicks v. St. Louis, 234 Mo. 653, 138 S. W. 342, 
 dismissing appeal from injunction restraining city from shutting off water, on 
 enactment of ordinance authorizing water to be continued to be furnished. 
 Superintending; control of supreme court over inferior eonrts. 
 
 Cited in State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 617, 51 L. R. A. 
 60, 79 N. W. 1081, and State ex rel. Hawes v. Mason, 153 Mo. 55, 54 S. W. 524, 
 holding superintending jurisdiction of supreme court over inferior courts is as 
 broad as exigencies of case demands. 
 
 Cited in notes (51 L.R.A. 58, 110) on superintending control and supervisory 
 jurisdiction of superior over inferior tribunals; (15 Eng. Rul. Cas. 135) on 
 power of higher court to require justices to review their discretionary decisions. 
 Mandamus to inferior tribunals and corporate bodies. 
 
 Cited in State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 618, 51 L. R. A. 
 60, 79 N. W. 1081, holding writ lies to compel recognition of absolute right in 
 inferior court, notwithstanding appealable orders remain unreversed; State 
 ex rel. St. Louis, K. & N. W. R. Co. v. Klien, 140 Mo. 513, 41 S. W. 895, holding 
 supreme court may compel entry of final judgment by circuit court; Schintz v. 
 Morris, 13 Tex. Civ. App. 594, 35 S. W. 516, holding that district court may be 
 compelled to grant new trial upon whole case, when verdict set aside in part; 
 State ex rel. Schonhoff v. O'Bryan, 102 Mo. 259, 14 S. W. 933, holding that 
 court wrongfully remanding case taken to it on change of venue may be com- 
 pelled to proceed with cause; State ex rel. Martin v. Wofford, 121 Mo. 67, 25 
 S. W. 851, holding county criminal court may be compelled to order transcript 
 of stenographer's notes, without cost to defendant, when entitled to it under 
 statute; State ex rel. Kelleher v. St. Louis Public Schools, 134 Mo. 311, 56 Am. 
 St. Rep. 503, 35 S. W. 617, holding that school board may be compelled to hold 
 impartial election for director, when discretion abused; State ex rel. Klotz v. 
 Ross, 118 Mo. 76, 23 S. W. 196 (dissenting opinion), majority holding that 
 mandamus will not lie for review of order appointing receiver; State ex rel. 
 Third Nat. Bank v. Smith, 107 Mo. 534, 17 S. W. 901 (dissenting opinion), 
 majority holding that court of appeals cannot be compelled to certify cause 
 to supreme court for review; State ex rel. Stanberry v. Smith, 172 Mo. 627, 73 
 S. W. 134, and State ex rel. Chicago, R. I. & P. R. Co. v. Smith, 172 Mo. 459, 
 
523 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 482 
 
 72 S. W. 692, holding mandamus proper remedy to compel lower court to hear 
 case; State ex rcl. Mississippi River & B. T. R. Co. v. Bearing, 173 Mo. 511, 
 
 73 S. W. 485, holding that mandamus lies to compel lower court to hear evidence 
 as to exceptions in commissioner's report; Golden Gate Tile Co. v. Superior Ct. 
 159 Cal. 478, 114 Pac. 978, holding that mandamus will lie to compel superior 
 court to take jurisdiction of appeal from justice's court; State ex rel. Umbreit 
 v. Helms, 136 Wis. 441, 118 N. W. 158, sustaining right of Supreme Court to 
 compel court below to try a criminal cause; Wandelohr v. Rainey, 100 Tex. 475, 
 TOO S. W. 1155, holding mandamus proper remedy where court refused to permit 
 a transcript to be filed. 
 
 Cited in footnote to Port Royal Min. Co. v. Hagood, 3 L. R. A. 841, which 
 refuses to compel board of agriculture by mandamus to issue license to mine 
 phosphate rock. 
 
 Cited in note (13 L. R. A. 121) on mandamus in general. 
 
 Distinguished in State ex rel. Springfield Traction Co. v. Broaddus, 207 Mo. 
 123, 105 S. W. 629, holding mandamus from supreme court not to lie to compel 
 court of appeals to hear and decide a cause on ground that it erroneously held 
 no bill of exceptions had been filed. 
 Certiorari or writ of prohibition to inferior tribnnal. 
 
 Cited in State ex rel. Walbridge v. Valliant, 123 Mo. 540, 28 S. W. 586 (dis- 
 senting opinion), majority holding that writ will not lie to review interlocutory 
 order involving jurisdiction of circuit court, before final judgment; Crooks v. 
 Fourth Judicial Dist. Court, 21 Utah, 108, 59 Pac. 529 (dissenting opinion), 
 majority holding order dismissing appeal from judgment of justice of the peace, 
 for want of jurisdiction, not reviewable on certiorari; State ex rel. Anheuser- 
 Busch Brewing Asso. v. Eby, 170 Mo. 516, 71 S. W. 52, holding that supreme 
 court has power to issue writ of prohibition to lower court to prevent trial of 
 certain liquor cases. 
 When cloud on title may be removed in equity. 
 
 Cited in Verdin v. St. Louis, 131 Mo. 80, 33 S. W. 480. holding that equity will 
 entertain suit to cancel tax bills void on their face (distinguished in dissenting 
 opinion) ; Longwell v. Kansas City, 69 Mo. App. 185, holding that equity will 
 remove cloud created by judgment, void for want of notice; Rogers v. First 
 Nat. Bank, 82 Mo. App. 384, holding title which is defective on face of record 
 not such cloud as is within jurisdiction of equity to remove. 
 Injunction to prevent cloud on title. 
 
 Cited in Skinker v. Heman, 64 Mo. App. 448, holding that equity will interpose 
 by injunction to prevent cloud being cast on title; Rose v. Trestrail, 62 Mo. App. 
 359, holding that injunction will lie to prevent work being done on street im- 
 provement, when not begun until after contract has expired. 
 Right of suitor to decision. 
 
 Cited in State ex rel. Hadley v. Standard Oil Co. 218 Mo. 389, 116 S. W. 902, 
 holding that a party is entitled to relief claimed or an adjudication of why 
 redress is denied him. 
 
 3 L. R. A. 482, FRINK v. SOUTHERN EXP. CO. 82 Ga. 33, 8 S. E. 862. 
 Recovery against surety of penalty and interest. 
 
 Cited in Whereatt v. Ellis, 103 Wis. 355, 74 Am. St. Rep. 865, 79 N. W. 416, 
 holding recovery on bond may include both penalty and interest; United States 
 Fidelity & G. Co. v. American Blower Co. 41 Ind. App. 626. 84 N. E. 555, 
 holding a surety liable for interest upon a delayed claim for materials furnished 
 
3 L.R.A. 482] L. R. A. CASLS AS AUTHORITIES. 524 
 
 to the principal; McDonald v. Loewen, 145 Mo. App. 59, 130 S. W. 52, holding 
 sureties on attachment bond liable for interest from date action was commenced. 
 
 Cited in notes (8 L. R. A. 486) on what, essential to bind surety on bond; 
 (9 L. R. A. 353) on liability of surety or guarantor; (55 L. R. A. 385) on 
 penalty as limit of liability on statutory bond. 
 Liability of agent for negligence. 
 
 Cited in Cave v. Lougee, 134 Ga. 136, 67 S. E. 667, holding agent liable for 
 money lost through his failure to use ordinary care. 
 Admissibility of declarations of agents. 
 
 Cited in note (131 Am. St. Rep. 321) on admissibility of declarations and 
 acts of agents. 
 
 3 L. R. A. 486, BLACKSTONE v. STANDARD LIFE & ACCI. INS. CO. 74 Mich. 
 
 592, 42 N. W. 156. 
 Causes of death avoiding policy. 
 
 Cited in Sherar v. Prudential Ins. Co. 63 Neb. 536, 56 L. R, A. 614, 88 N. \V. 
 687, holding stipulation against liability in case of death by suicide relieves 
 insurer, though insured insane ; Knapp v. Order of Pendo, 36 Wash. 607, 79 Pac. 
 209; Tuttle v. Iowa State Traveling Men's Asso. 132 Iowa, 654, 7 L.R.A.(N.S.) 
 223, 228, 104 N. W. 1131, holding death from suicide which springs from an 
 insane impulse of a disordered or insane mind is through external violent and 
 accidental means within meaning of an accident policy. 
 
 Cited in notes (6 L. R. A. 496) on death caused by crime; (13 L. R. A. 838) 
 on death resulting from violation of law; (30 L. R. A. 207) on intentional 
 injuries avoiding policy; (3 L. R. A. 443) on conditions in accident insurance 
 policy; (35 L. R. A. 259, 261, 265) on insanity as affecting condition against 
 suicide; (17 L. R. A. 754) on proximate cause of death within meaning of 
 life policy; (1 L.R.A. (N.S.) 423) on injury to insured by own act while asleep 
 as an accident; (7 L.R.A. (N.S.) 223) on suicide as death through external, 
 violent, and accidental means; (14 Eng. Rul. Gas. 23; 84 Am. St. Rep. 544, 546, 
 548, 549) on self-destruction as defense to life insurance. 
 Avoidance of policy for concealment of facts. 
 
 Cited in note (6 Eng. Rul. Cas. 833) on avoidance of insurance contract 
 for failure of insured to disclose all material facts. 
 
 3 L. R. A. 497, CALLAHAM v. ROBINSON, 30 S. C. 249, 9 S. E. 120. 
 Dower. 
 
 Cited in Hiers v. Gooding, 43 S. C. 434, 21 S. E. 310, holding annuity made 
 a charge on entire property not repugnant to claim of dower; Sumerel v. Suinerel, 
 34 S. C. 89, 12 S. E. 932, holding provisions of will not repugnant to claim 
 of dower; Latta v. Brown, 96 Tenn. 348, 31 L. R. A. 842, 34 S. W. 417, holding 
 devisees must contribute to make up share of devisee disappointed by widow 
 electing dower; Bannister v. Bannister. 37 S. C. 534, 16 S. E. 612, holding that 
 provisions of will were intended to be in lieu of dower; Otts v. Otts, 80 S. C. 19, 
 61 S. E. 109, holding a devise of a small tract of land "for life or widowhood" 
 not to bar dower in other large tracts of land; Scott v. Vaughn. 83 S. C. 365, 
 65 S. E. 269, holding same where testator divided his property into two parts 
 and made ample provision for wife out of one. 
 
 Cited in footnotes to Youmans v. Wagener, 3 L. R. A. 447. which holds inchoate 
 dower right merged in fe^ of land conveyed to wife by purchaser at execution 
 sale against husband: Tart v. Burch, 6 L. R. A. 371. which holds ineffectual, 
 release of dower to one Slaving no title; Tripp v. Nobles, 67 L.R.A. 449. which 
 holds widow offering for probate and undertaking to carry out as administratrix 
 
525 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 507 
 
 with the will annexed, husband's will devising her own land to her for life with 
 remainder over and an additional sum of money estopped to assert her absolute 
 title to the land. 
 
 Cited in notes (18 L. R. A. 79) on power of husband or his creditors to defeat 
 wife's right of dower; (13 L.R.A. 442) on bar of inchoate right of dower; (92 
 Am. St. Rep. 697) on widow's election between will and dower or community 
 property; (10 Eng. Rul. Cas. 349) on necessity of election between devise 
 and dower. 
 
 3 L. R. A. 503, IMPERIAL REF. CO. v. WYMAN, 38 Fed. Rep. 574. 
 Pleading citizenship. 
 
 Cited in Foster v. Cleveland, C. C. & St. L. R. Co. 56 Fed. 436, holding that 
 allegation of citizenship in complaint, uncontroverted by pleading or proof, must 
 stand as alleged. 
 Jurisdiction. 
 
 Cited in Terry v. Davy, 46 C. C. A. 143, 107 Fed. 52, holding plea in abatement 
 to jurisdiction properly submitted to jury as separate issue; Desert King Min. 
 Co. v. \Yedekind, 110 Fed. 877, holding want of jurisdiction cannot be raised by 
 motion except where it appears on face of complaint; National Masonic Acci. 
 Asso. v. Sparks, 28 C. C. A. 402, 49 U. S. App. 681, 83 Fed. 227, holding general 
 denial without proper averments does not raise question of jurisdiction; Hill v. 
 Walker, 92 C. C. A. 633, 167 Fed. 244, 250, holding that question of jurisdiction: 
 of Federal court cannot be tried under a general denial. 
 Federal court practice. 
 
 Cited in Virginia v. Felts, 133 Fed. 90, holding where case is removed to 
 federal court issues of fact should be tried by jury subject to right to direct a 
 verdict. 
 Limited partnership. 
 
 Cited in Spencer Optical Mfg. Co. v. Johnson, 53 S. C. 536, 31 S. E. 392, holding' 
 statutory condition precedent to formation of limited partnerships must be 
 strictly complied with. 
 
 Cited in footnotes to State, Tide Water Pipe Co., Prosecutor, v. State Board. 
 27 L. R. A. 684. which holds limited partnership a corporation for purpose of 
 taxation: Edwards v. Warren Linoline & Gasoline Works, 38 L. R. A. 791, which 
 holds partnership association organized under laws of Pennsylvania regarded aa 
 partnership instead of corporation in Massachusetts. 
 
 Cited in note (8 L. R. A. 713) on limited partnerships. 
 
 Distinguished in Youngstown Coke Co. v. Andrews Bros. Co. 79 Fed. 672, 
 holding limited partnership associations within jurisdiction of Federal courts. 
 
 3 L. R. A. 507, BRADLEY v. BRIGHAM, 149 Mass. 141, 21 N. E. 301. 
 Election of remedies. 
 
 Cited in Clare v. Xew York & X. E. R. Co. 172 Mass. 214, 51 N. E. 1083, 
 holding separate actions upon alternative, but not inconsistent, remedies, fol 
 personal injury, cannot be prosecuted at same time; Riley v. Hale. 158 Mass. 
 245. 33 X. E. 491, holding that lessor cannot treat lease as valid for collection 
 of rent, and invalid as to implied covenant for quiet enjoyment: O'Meara v. 
 McDennott, 43 Mont. 106, 115 Pac. 912, holding that bringing of action as 
 partner for accounting, in which court held that plaintiff was not partner but 
 employee, does not bar action as employee. 
 
 Cited in note (22 Am. St. Rep. 564) on collusiveness of judgment. 
 
 Distinguished in Johnson-Brinkman Commission Co. v. Missouri P. R. Co. 
 
3 L.R.A. 507] L. R. A. CASES AS AUTHORITIES. 526 
 
 126 Mo. 349, 26 L. R. A. 842, 47 Am. St. Rep. 675, 28 S. W. 870, holding vendoi 
 bringing attachment against vendee not estopped from bringing replevin for 
 goods, after dismissal of attachment. 
 
 3 L. R. A. 508, KYTE v. COMMERCIAL UNION ASSUR. CO. 149 Mass. 116, 
 
 21 N. E. 361. 
 Increase of risk avoiding 1 policy of insurance against flre. 
 
 Cited in Standard Life & Acci. Ins. Co. v. Martin, 133 Ind. 380, 33 N. E. 105, 
 holding parties may contract that forbidden hazard shall avoid policy, or that 
 increase of hazard shall diminish amount of insurance; Davis v. J5tna Mut. F. 
 Ins. Co. 67 N. H. 340, 39 Atl. 902, holding any fact material to risk, which 
 increases danger of loss and would influence taking of risk or amount of pre- 
 mium to be charged, avoids policy; Wainer v. Milford Mut. F. Ins. Co. 153 
 Mass. 339, 11 L. R. A. 600, 26 N. E. 877, holding policy may become void upon 
 premises remaining vacant thirty days; Norwaysz v. Thuringia Ins. Co. 204 111. 
 346, 68 N. E. 551, holding storage of gasoline, other than in place where policy 
 permits, violation of policy; Shutts v. Milwaukee Mechanics' Ins. Co. 359 Mo. 
 App. 439, 141 S. W. 15, holding that removal of household goods to another 
 building did not ipso facto avoid policy, but gave insurer right to forfeit policy, 
 which right was waived. 
 
 Cited in notes in (16 Am. St. Rep. 449; 66 Am. St. Rep. 694, 695) on what 
 .constitutes an increase of hazard. 
 Effect on loss immaterial. 
 
 Cited in Martin v. Capital Ins. Co. 85 Iowa, 651, 52 N. W. 534, holding that 
 .if unauthorized use of premises increases risk, it is immaterial whether such 
 use contributed to loss; Turnbull v. Home F. Ins. Co. 83 Md. 321, 34 Atl. 875, 
 holding it immaterial, under condition that keeping of prohibited article on 
 premises will avoid policy, that same was not cause of fire; Imperial F. Ins. 
 Co. v. Coos County, 151 U. S. 469, 38 L. ed. 238, 14 Sup. Ct. Rep. 379, holding 
 that breach of condition that mechanics shall not be employed in altering or 
 repairing avoids policy, although fire not caused thereby. 
 Where breach not existing at time of loss. 
 
 Cited in Hill v. Middlesex Mut. Assur. Co. 174 Mass. 545, 55 N. E. 319, 
 holding policy may be avoided for past breach of condition not contributing to 
 loss; Hoover v. Mercantile Town Mut. Ins. Co. 93 Mo. App. 118, 69 S. W. 42, 
 holding breach of condition subsequent vitiates policy, though breach may not 
 continue up to time of loss; Georgia Home Ins. Co. v. Rosenfield, 37 C. C. A. 105, 
 95 Fed. 366, holding, under condition that other insurance will avoid policy, that 
 same is not revived on expiration of additional insurance, unless by consent 
 of insurer; Sumter Tobacco Warehouse Co. v. Phoenix Assur. Co. 76 S. C. 80, 
 10 L.R.A.(N.S.) 741, 121 Am. St. Rep. 941, 56 S. E. 654, 11 A. & E. Ann. Gas. 
 780, holding a temporary increase of hazard which ceases before loss will not 
 prevent recovery; Port Blakely Mill Co. v. Springfield F. & M. Ins. Co. 59 
 Wash. 522, 28 L.R.A.(N.S.) 604, 140 Am. St. Rep. 863, 110 Pac. 36 (dissenting 
 opinion), on avoidance of policy by temporary breach by insured of warranty 
 to keep sprinkler system in order. 
 
 Cited in footnote to State Ins. Co. v. Schreck, 6 L. R. A. 524, which holds policy 
 on all personalty, without specifying it, avoided by transfer of title, only as to 
 property encumbered at time of loss. 
 
 Cited in notes (10 L.R.A. (N.S.) 737) on effect of temporary condition ceasing 
 before loss, under general provision against increase of risk, or specific provision 
 against certain conditions; (80 Am. St. Rep. 309) on revival of forfeited insur- 
 ance by discontinuance of cause of forfeiture before loss. 
 
327 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 510 
 
 3 L. R. A. 510, STATE ex rel. CLAPP v. MINNESOTA THRESHER MFG. 
 
 CO. 40 Minn. 213, 41 N. W. 1020. 
 Right to trial by jury. 
 
 Cited in Atty.-Gen. v. Sullivan, 163 Mass. 452, 28 L. R. A. 457, 40 N. E. 843, 
 holding proceeding by quo warranto to try title to office not triable to jury; 
 State ex rel. Mullen v. Doherty, 16 Wash. 385, 58 Am. St. Rep. 39, 47 Pac. 958, 
 and Schmidt v. Schmidt, 47 Minn. 453, 50 N. W. 598, holding article of Consti- 
 tution providing for trial by jury in all cases at law merely continues right as 
 it existed in territory at adoption of Constitution; Koeper v. Louisville, 109 
 Minn. 522, ]24 N. W. 218, holding defendant not entitled to jury trial in action 
 to compel it to close opening in bank of lake, to restrain it from flooding plain- 
 tiff's land and for incidental damages; State ex rel. Gates v. Standard Oil Co. 
 120 Tenn. 124, 110 S. W. 565, on right to jury trial in quo warranto proceedings; 
 State v. Strasburg, 60 Wash. 115, 32 L.R.A.(N.S.) 1218, 110 Pac. 1020, Ann. 
 Cas. 1912B, 917, holding that attempt to deprive one accused of crime of defense 
 of insanity is ineffectual under constitutional guaranty of trial by jury. 
 
 Cited in note (24 L. R. A. 807) on right to jury in quo warranto proceeding. 
 Corporations; forfeiture of charter. 
 
 Cited in State ex rel. Childs v. American Sav. & L. Asso. 64 Minn. 357, 67 
 N. W. 1, holding acts amounting to clear violation of conditions upon which 
 franchise granted justifies action by state to enjoin use; State ex rel. Johnson 
 v. Southern Bldg. & L. Asso. 132 Ala. 56, 31 So. 375, holding abuse must be 
 wilful, continued, and relate to essence of franchise, and it must appear no 
 adequate relief obtainable in any other mode; State ex rel. Atty. Gen. v. Twin 
 Village Water Co. 98 Me. 230, 56 Atl. 763, holding that nonuser of electric light 
 franchise, through people's lack of desire for such light, not warrant revocation; 
 Attorney General v. New York, N. H. & H. R. Co. 197 Mass. 197, 83 N. E. 408, 
 on restraining a corporation for exercise of powers not authorized by its charter. 
 
 Cited in footnote to State ex rel. Sheets v. Mt. Hope College Co. 52 L. R. A. 365, 
 which authorizes dissolution of educational institution for sale of diplomas with- 
 out regard to merit. 
 
 Cited in notes (9 L. R. A. 35-37) on forfeiture of corporate franchise; 
 (9 L.R.A. 275) on dissolution of corporations; (8 Am. St. Rep. 182) on for- 
 feiture of corporate franchises; (70 Am. St. Rep. 178) on doctrine that only 
 state may raise question of ultra vires. 
 Misnser must threaten substantial injury to public. 
 
 Cited in People ex rel. Union P. R. Co. v. Colorado Eastern R. Co. 8 Colo. 
 App. 307, 46 Pac. 219, holding that to justify proceedings by quo warranto 
 against corporation it must appear public interests affected. 
 
 Cited in note (7 L. R. A. 319) on quo warranto for illegal exercise of corpo- 
 rate franchise. 
 Limitation upon business of corporation; nature of corporate business. 
 
 Cited in Williams v. Citizens' Enterprise Co. 25 Ind. App. 357, 57 N. E. 581, 
 holding statute authorizing incorporation for several kinds of business, stated 
 in disjunctive, not authority for incorporation for all purposes named; Burke v. 
 Mead, 159 Ind. 261, 64 N. E. 880, holding power to manufacture and sell electrical 
 supplies not incident to power to sell electricity for heat and light; Marion Bond 
 Co. v. Mexican Coffee & Rubber Co. 160 Ind. 562, 65 N. E. 748, denying that 
 specification of some unauthorized powers renders legality of organization subject 
 to collateral attack; Minneapolis & St. P. Suburban R. Co. v. Manitou Forest 
 Syndicate, 101 Minn. 145, 112 N. W. 13, holding the real character of a cor- 
 poration must be determined from those portions of its articles of association 
 
3 L.R.A. 510] L. R. A. CASES AS AUTHORITIES. 528 
 
 expressing the nature and scope of its business; International Boom Co. v. Rainy 
 Lake River Boom Corp. 97 Minn. 519, 107 N. W. 735, holding it cannot be made 
 one kind of corporation merely by being labeled as such, if its declared objects 
 show it to be something else; Hamilton Nat. Bank v. American Loan & T. Co. 
 66 Xeb. 77, 92 N. W. 189, holding a corporation doing a general banking business 
 was a bank and liable as such though it designated itself in the articles filed 
 as a "Loan and Trust Company." 
 Purchase by corporation of its own stock. 
 
 Cited in note (61 L. R. A. 625) on right of corporation to purchase its own 
 shares of stock. 
 
 Distinguished in Lowe v. Pioneer Threshing Co. 70 Fed. 647, holding that 
 purchase by corporation of its own stock, by transfer of nearly entire assets, 
 although with consent of majority stockholders, will be enjoined as instance of 
 minority stockholders. 
 What is corporate franchise. 
 
 Cited in Maestri v. Board of Assessors, 110 La. 526, 34 So. 658, holding that 
 grant of exclusive privilege to build and rent market place for twenty-five years, 
 then convey to city, constitutes franchise. 
 
 Cited in footnote to Spring Valley Waterworks v. Barber, 21 L. R. A. 416, 
 which denies right to franchise tax against water company in county where it 
 has only water pipe and right of way. 
 Personal liability of stockholders for corporate debts. 
 
 Cited in Arthur v. Willius, 44 Minn. 415, 46 N. W. 851, holding Constitution 
 excepting stockholders of manufacturing and mechanical corporations from indi- 
 vidual liability applies only to corporations organized exclusively for those 
 purposes; Mohr v. Minnesota Elevator Co. 40 Minn. 346, 41 N. W. 1074, holding 
 stockholders in elevator company not brought within exception to rule of per- 
 sonal liability by denominating organization to be for manufacturing purposes; 
 St. Paul Barrel Co. v. Minneapolis Distilling Co. 62 Minn. 449, 64 N. W. 1143, 
 holding corporation organized not only to distill and manufacture, but also to 
 buy and sell, liquors, not within exception to constitutional provision; Nicollet 
 Xat. Bank v. Frisk-Turner Co. 71 Minn. 418, 70 Am. St. Rep. 334, 74 N. W. 160, 
 holding purpose of constitutional provision exempting stockholders is to encourage 
 manufacturing; Willis v. Mabon, 48 Minn. 149, 16 L. R. A. 284, 31 Am. St. Rep 
 626, 50 N. W. 1110, holding that Const, art. 10, 3, making stockholders in cor 
 poration liable for corporate debts to amount of stock held, is self-executing: 
 First Nat. Bank v. Converse, 200 U. S. 435, 50 L. ed. 540, 26 Sup. Ct. Rep. 306, 
 holding it must appear that the Minnesota corporation was organized for the 
 exclusive purpose of engaging in manufacturing or the double liability of stock- 
 holders would result; Merchants' Xat. Bank v. Minnesota Thresher Mfg. Co. 
 90 Minn. 147, 95 N. W. 767, holding its purpose must so appear or its stock- 
 holders are not within the exception to the general rule of constitutional liability 
 for the debts of the corporation ; Converse v. Aver, 197 Mass. 452, 84 N. E. 98 : 
 Bernheimer v. Converse, 206 U. S. 524, 51 L. ed. 1172, 27 Sup. Ct. Rep. 755 
 holding the Minnesota thresher manufacturing company is not a manufacturing 
 or mechanical corporation within the exception as to stockholders liability; Con- 
 verse v. JEtna, Nat. Bank, 79 Conn. 169, 64 Atl. 341, 7 A. & E. Ann. Cas. 75, 
 holding shareholders in the Minnesota Thresher Manufacturing Co. subject to 
 a double liability, as the company was not incorporated solely for manufacturing 
 purposes. 
 Corporations exempt fro..-, taxation. 
 
 Cited in Detroit Home & Day School v. Detroit, 76 Mich. 534, 6 L. R. A. 101, 
 
529 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 521 
 
 43 N". W. 593 (dissenting opinion), majority holding educational corporation 
 within statute exempting "scientific institutions" from taxation. 
 Remedy against unauthorized exercise of powers. 
 
 Cited in footnote to Guillotte v. Poincy, 5 L. R. A. 403, which holds disputed 
 title to office cannot be determined by injunction. 
 
 Cited in note (8 L. R. A. 229) on trial of title to office. 
 Nature of Code remedy in nature of QUO warranto. 
 
 Cited in State ex rel. Young v. Kent, 96 Minn. 270, 1 L.R.A.(N.S.) 834, 104 
 X. W. 948, 6 A. & E. Ann. Gas. 905, holding the information in the nature of 
 quo warranto as it exists in Minnesota is substantially that known in England 
 after the enactment of Statute of Anne. 
 Original jurisdiction conferrable on Supreme Court. 
 
 Cited in Painter v. United States. 6 Ind. Terr. 514, 98 S. W. 352, on juris- 
 diction given appellate courts over original remedial writs; Lauritsen v. Seward, 
 99 Minn. 322, 109 N. W. 404, holding the cases intended by the term "remedial 
 cases" are those where the remedy is afforded summarily through certain extra- 
 ordinary writs. 
 Validity of purchase of corporation stock frith assets of corporation. 
 
 Cited in Edmunds v. Illinois C. R. Co. 2 111. C. C. 483, holding the buying 
 by one corporation of stock of another corporation is not malum in se. 
 
 3 L. R. A. 519, VANCLEAVE v. CLARK, 118 Ind. 61, 20 N. E. 527. 
 Contract for hoard and care. 
 
 Cited in Maxwell v. Burton, 3 Ind. App. 425, 29 N. E. 943, holding that con- 
 tract must furnish measure of compensation notwithstanding subsequent change 
 in conditions increasing burden; Davidson v. Smith, 18 Pa. Dist. R. 713, 36 Pa. 
 Co. Ct. 351, on the disfavor with which courts view contracts upon condition 
 of subsequent support and maintenance and holding that recovery for breach 
 must be limited to actual loss sustained notwithstanding terms. 
 
 Cited in footnote to Tuttle v. Burgett, 30 L. R. A. 214, which upholds mort- 
 gagee's right to claim support, under mortgage, at any reasonable place. 
 
 Cited in note (14 L.R.A. (N.S.) 538) on right of one breaking contract to 
 support another to recover on quantum meruit. 
 Contracts for heiiefit of third party. 
 
 Cited in Case v. Case, 137 App. Div. 396, 121 N. Y. Supp. 746, holding that 
 son conveying property received from mother to his brother on his promise to 
 mother to support her can maintain action against brother for his failure to 
 support mother. 
 
 Cited in notes (25 L.R.A. 261) on right of third party to sue upon contract 
 made for his benefit; (71 Am. St. Rep. 205) on same point. 
 Appeal; presumptions. 
 
 Overruled in effect in State v. Winstandley,. 151 Ind. 498, 51 N. E. 1054, 
 holding that when all instructions are not in record, erroneous instruction was 
 presumably withdrawn by another. 
 
 3 L. R. A. 521, HULL v. YOUNG, 30 S. C. 121, 8 S. E. 695. 
 Partner's power to bind firm. 
 
 Cited in Pollock v. Jones, 61 C. C. A. 558, 124 Fed. 166, denying firm bound 
 by one partner's unauthorized execution of sealed vote: Ex parte Wilson, 84 
 S. C. 450, 66 S. E. 675, .to point that note of partnership signed by a single 
 member thereof is customary and presumptively authorized. 
 L.R.A. Au. Vol. I. 34. 
 
3 L.R.A. 521] L. R. A. CASES AS AUTHORITIES. 530 
 
 Cited in note (17 L.R.A. (N.S.) 970, 972) on power of partner to bind firm 
 by note or bill under seal. 
 
 Disapproved in Merchants' & F. Bank v. Johnston, 130 Ga. 666, 17 L.R.A. 
 (N.S.) 974, 61 S. E. 543, 14 A. & E. Ann. Cas. 546, holding that one member 
 of a commercial firm, can bind it by the signing its name to a promissory note 
 under seal in the course of the business of the partnership. 
 
 3 L. R. A. 523j SEYK v. MILLERS' NAT. INS. CO. 74 Wis. 67, 41 N. W. 443. 
 Liability for loss on policy. 
 
 Cited in MacKinnon v. Mutual F. Ins. Co. 83 Wis. 19, 53 N. W. 19, holding 
 company liable for loss occurring within limit allowed for payment, after notice 
 of unpaid assessment; Johnston v. Phelps County Farmers' Mut. Ins. Co. 63 
 Neb. 25, 56 L. R. A. 129, 88 N. W. 142, holding that no forfeiture arises from 
 nonpayment of assessment after loss; Sanford v. Royal Ins. Co. 11 Wash. 673, 
 40 Pac. 609, holding that release of entire claim for part only, is without con- 
 sideration, after loss has been adjusted, if there is no bona fide ground for dis- 
 puting company's liability. 
 
 Cited in note (63 L. R. A. 866) on conflict of laws as to valued polices of in- 
 surance. 
 Applicability of insurance statutes to foreign policies. 
 
 Cited in Stanhilber v. Mutual Mill Ins. Co. 76 Wis. 291, 45 N. W. 221, hold- 
 ing Wisconsin rule as to indorsement of copy of application on policy applies 
 to foreign policies on property in state. 
 Total destruction of insured building. 
 
 Cited in Dick v. Equitable F. & M. Ins. Co. 92 Wis. 54, 65 N. W. 742, hold- 
 ing evidence sufficient to show building totally destroyed for all practical or 
 useful purposes; Pennsylvania F. Ins. Co. v. Drackett, 63 Ohio St. 56, 81 Am. 
 St. Rep. 608, 57 N. E. 962; Northwestern Mut. L. Ins. Co. v. Rochester German 
 Ins. Co. 85 Minn. 55, 56 L. R. A. Ill, 88 N. W. 265; Lindner v. St. Paul F. & 
 M. Ins. Co. 93 Wis. 533, 67 N. W. 1125, holding loss of building total where its 
 identity as building is destroyed; St. Clara Female Academy v. Northwestern 
 Nat. Ins. Co. 98 Wis. 267, 67 Am. St. Rep. 805, 73 N. W. 770, holding destruc- 
 tion leaving nothing but foundation walls, total; Temple v. Niagara F. Ins. Co. 
 109 Wis. 375, 85 N. W. 361, holding it, under Wisconsin statutes, optional with 
 insurer to rebuild or replace property totally destroyed; German Ins. Co. v. 
 Eddy, 36 Neb. 466, 19 L. R. A. 709, 54 N. W. 856, holding loss total when 
 structure is totally destroyed as" a building; O'Keefe v. Liverpool, L. & G. Ins. 
 Co. 140 Mo. 565, 39 L. R. A. 820, 41 S. W. 922, holding destruction of building, 
 except foundation and upper part of one wall, total loss; Royal Ins. Co. v. 
 Mclntyre, 90 Tex. 178, 35 L. R. A. 676, 59 Am. St. Rep. 797, 37 S. W. 1068, 
 holding no total loss if remnant may reasonably be used as basis for restoring 
 building; Corbett v. Spring Garden Ins. Co. 155 N. Y. 394, 41 L. R. A. 320, 50 
 N. E. 282, holding not a total loss where walls and foundations remain prac- 
 tically intact; Palatine Ins. Co. v. Weiss, 109 Ky. 468, 59 S. W. 509, holding 
 that total loss occurs when building unsafe and has to be torn down; Rogers 
 v. Connecticut F. Ins. Co. 157 Mo. App. 682, 139 S. W. 265, holding engine and 
 dynamo in electric light plant a total loss, where they were so badly damaged 
 as to be valueless for use as integral part of plant; Reed v. Firemen's Ins. Co. 
 81 N. J. L. 531, 35 L.R.A.(N.S.) 348, 80 Atl. 462, holding that appropriation 
 by owner of proceeds of sale of debris would not invalidate insurance of mortgage. 
 
 Cited in footnotes to German Ins. Co. v. Eddy, 19 L. R. A. 707, which holds 
 loss total where all combustible material in building destroyed; Daggs v. Orient 
 Jns. Co. 35 L. R. A. 227, which upholds statute requiring payment of full 
 
531 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 528 
 
 amount of policy on total loss; Royal Ins. Co. v. Mclntyre, 35 L. R. A. 672, 
 which holds that no total loss results while remnant of building remains, rea- 
 sonably adapted for use in restoring building; Corbett v. Spring Garden Ins. 
 Co. 41 L. R. A. 318, which denies liability on policy insuring against total de- 
 struction of building, which could be repaired for one third its value; Thur- 
 ingia Ins. Co. v. Malott, 55 L. R. A. 277, which holds total loss to be such in- 
 jury as to destroy identity and specific character of building as such; North- 
 western Mut. L. Ins. Co. v. Rochester German Ins. Co. 56 L. R. A. 108, which 
 holds no "total loss" of building if remnant remains reasonably adapted for 
 use; Hartford Fire Ins. Co. v. Redding, 67 L.R.A. 518, which upholds statute 
 requiring insurer to fix insurable value of property and state the same in the 
 policy and making measure of damages in case of total loss the amount so fixed. 
 
 Cited in notes (56 L.R.A. 787) on constructive total loss of insured building; 
 (59 Am. St. Rep. 811) as to when property is "wholly destroyed" or a "total 
 loss" within meaning of insurance policy. 
 Stipulations as affecting statutory rights. 
 
 Cited in Pennsylvania F. Ins. Co. v. Drackett, 63 Ohio St. 54, 81 Am. St. 
 Rep. 608, 52 N. E. 962, holding consent to arbitration not a waiver of right 
 to recover for total loss under statute; Havens v. Germania F. Ins. Co. 123 Mo. 
 420, 26 L. R. A. Ill, 45 Am. St. Rep. 570, 27 S. W. 718, holding stipulations of 
 insurance policy must yield to statutes; Sachs v. London & L. F. Ins. Co. 113 
 Ky. 95, 67 S. W. 23, holding company liable for full extent of damage though re- 
 quired amount of insurance not maintained. 
 
 Cited in footnote to Gibbs Brewing Co. v. De France, 28 L. R. A. 386, which 
 holds agreement to return or pay for barrels, etc., in which beer shipped con- 
 trary to law unenforceable. 
 Submission to arbitration. 
 
 Cited in Montgomery v. American Cent. Ins. Co. 108 Wis. 157, 84 N. W. 175, 
 holding independent agreement for appraisal of loss valid. 
 
 Cited in note ( 10 L. R. A. 559 ) on submission to arbitration as condition 
 precedent to action on fire insurance policy. 
 Answers in application for policy. 
 
 Cited in footnote to Union Cent. L. Ins. Co. y. Pollard, 36 L. R. A. 271, as 
 to law governing effect of answers in application for policy, and their use in 
 evidence. 
 Transfer of title. 
 
 Cited in footnote to State Ins. Co. v. Schreck, 6 L. R. A. 524, which holds 
 policy on all personalty, without specifying it, avoided by transfer of title, 
 only as to property encumbered at time of loss. 
 Statute of frauds. 
 
 Cited in note (19 L. R. A. 792) on conflict of laws as to statute of frauds. 
 Kiiv.'t of valued policy law. 
 
 Cited in Ritchie County Bank v. Fireman's Ins. Co. 55 W. Va. 277, 47 S. E. 
 D4, holding that all provisions of a policy in conflict with a valued policy statute 
 are void. 
 
 3 L. R. A. 528, PRINCE GEORGE'S COUNTY v. LAUREL, 70 Md. 443, 17 Atl. 
 
 388. 
 Imposition of debt upon taxpayers. 
 
 Cited in McClelland v. State, 138 Ind. 338, 37 N. E. 1089, holding legisla- 
 ture cannot impose upon taxpayers burden of reimbursing public officer for loss 
 <of school moneys not raised by taxation. 
 
H L.R.A. 528] L. R. A. CASES AS AUTHORITIES. 532 
 
 Inequality of taxation. 
 
 Cited in Schley v. Lee, 106 Md. 402, 67 Atl. 252, sustaining right to limit 
 taxation of certain property where public policy requires it; Curtis v. Mactier, 
 115 Md. 396, 80 Atl. 1066, holding void, act denying village power to tax certain 
 part of its territory. 
 
 3 L. R. A. 529, PATTERSON v. HAYDEN, 17 Or. 238, 11 Am. St. Rep. 822, 
 
 21 Pac. 129. 
 Reformation as affecting: ivommrs chastity. 
 
 Cited in Norton v. State, 72 Miss. 135, 48 Am. St. Rep. 538, 16 So. 264, hold- 
 ing woman who has fallen and reformed, chaste within meaning of seduction 
 statutes. 
 Seduction. 
 
 Cited in Robinson v. Powers, 129 Ind. 482, 28 N. E. 1112, upholding instruc- 
 tion that seduction is defined by the law books in certain words, the definition 
 being correct; Stowers v. Singer, 113 Ky. 589, 68 S. W. 637, holding that se- 
 duction implies use of artifice or promises to chaste woman; Ireland v. Ward, 
 51 Or. 103, 93 Pac. 932, holding that to "seduce" a female is to use some influ- 
 ence, promise or means which induces her to surrender her chastity: Salchert v. 
 Reinig, 135 Wis. 206, 115 N. W. 132, holding no seduction where party was hav- 
 ing intercourse at intervals prior to promise of marriage; Simmons v. State, 54 
 Tex. Crim. Rep. 627, 114 S. W. 841, holding under penal law of Texas that an 
 unchaste woman could not be seduced. 
 
 Cited in note (76 Am. St. Rep. 663, 664, 667, 669) on what is seduction. 
 Cause of action. 
 
 Distinguished in Anderson v. Aupperle, 51 Or. 559, 95 Pac. 330. holding that 
 common law right of action for seduction of an unmarried female in name of 
 one having right to services not abrogated by a statute giving father right 
 though there is no loss of services. 
 Measure of damages. 
 
 Cited in Gemmill v. Brown, 25 Ind. App. 17, 56 N. E. 691, holding that plaintiff 
 may recover for anguish of mind and pains and suffering of childbirth. 
 Right of jury to determine effect of evidence. 
 
 Cited in Messinger v. Union Warehouse Co. 39 Or. 549, 65 Pac. 808, holding 
 any evidence, however slight, tending to prove fact in case should be submitted 
 to jury. 
 
 Cited in note (14 Am. St. Rep. 38) on invasion by court of province of jury. 
 
 3 L. R. A. 532, ALLEN v. PIONEER PRESS CO. 40 Minn. 117, 12 Am. St. Rep. 
 
 707, 41 N. W. 936. 
 Title of act. 
 
 Cited in Ek v. St. Paul Permanent Loan Co. 84 Minn. 249, 87 N. W. 844, 
 and Winters v. Duluth, 82 Minn. 132. 84 N. W. 788, holding title of act suffi- 
 cient if not cloak for legislation on dissimilar measures; State ex rel. Olsen v. 
 Board of Control, 85 Minn. 174, 88 N. W. 533, holding title of act should be 
 liberally construed to uphold law. 
 
 Cited in notes (19 Am. St. Rep. 872; 64 Am. St. Rep. 74, 106) on sufficiency 
 of title of statute. 
 Special or class legislation. 
 
 Cited in Cameron v. Chief --o. M. & St. P. R. Co. 63 Minn. 388, 31 L. R. A. 
 555, 65 N. W. 652, holdir. ; valid law reasonably confined to particular class, 
 operating thereon alike under similar circumstances; Gray v. Minnesota Tribune 
 
533 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 532 
 
 Co. 81 Minn. 334, 84 N. W. 113, without special discussion or holding on this 
 point; Sasser v. Martin, 101 Ga. 456, 29 S. E. 278, holding legislative classifi- 
 cation must have regard to character of legislation of which it is a feature; 
 State ex rel. Terre Haute v. Kolsera, 130 Ind. 460, 14 L. R. A. 576, 29 N. E. 595 
 (dissenting opinion), majority holding courts have no power to determine 
 whether legislative classification is good or vicious; Brimm v. Jones, 11 Utah, 
 205, 29 L. R. A. 99, 39 Pac. 825, upholding law relating only to drivers of herds 
 of horses, mules, etc.; Christy v. Elliott, 216 111. 41, 1 L.R.A. (N.S.) 227, 108 Am. 
 St. Rep. 196, 74 N. E. 1035, 3 A. & E. Ann. Gas. 487 ; State v. Swagerty, 203 Mo. 
 525, 10 L.R.A.(N.S.) 603, 120 Am. St. Rep. 67, 102 S. W. 483, 11 A. & E. Ann. 
 Cas. 755, holding a statute regulating operation and speed of automobiles on 
 the public highways is not unconstitutional in that it does not apply to all 
 vehicles used on the public highways; State ex rel. Bd. of Education v. Brown, 
 97 Minn. 409, 5 L.R.A. (N.S.) 334, 106 N. W. 477, holding laws legalizing bonds, 
 voted upon by cities for high school buildings being curative acts are not special 
 legislation and unconstitutional; Comer v. Age-Herald Pub. Co. 151, Ala. 616, 
 13 L.R.A. (N.S.) 528, 44 So. 673, holding a statute not unconstitutional because 
 it relates to libel by newspapers alone. 
 
 Cited in notes (15 Am. St. Rep. 75) on special acts; (21 Am. St. Rep. 785) 
 on what is a general law. 
 Statutes limiting- recovery for libel. 
 
 Cited in footnote to Osborn v. Leach, 66 L.R.A. 648, which sustains statute 
 limiting right to escape punitive damages for publication of libel by retraction 
 to publishers of newspapers and periodicals. 
 
 Cited in note (15 Am. St. Rep. 347) on statutes limiting recovery for news- 
 paper libel. 
 
 Disapproved in effect in Osborn v. Leach, 135 N. C. 639, 47 S. E. 811, sustain- 
 ing statute depriving person of right to recover punitive damages for libel; 
 Hanson v. Krehbiel, 68 Kan. 677, 64 L.R.A. 793, footnote, p. 790, 75 Pac. 1041, 
 declaring void a statute denying right in certain cases to one injured in repu- 
 tation to have redress by due process of law. 
 Pleading-. 
 
 Cited in Holston v. Boyle, 46 Minn. 433, 49 N. W. 203, holding special damages 
 must still be alleged under statute, to be proved. 
 Good faith. 
 
 Cited in Gray v. Times Newspaper Co. 74 Minn. 457, 73 Am. St. Rep. 363, 
 77 N. W. 204, holding question of good faith in publication of libelous article, 
 one for jury; Mattson v. Albert, 97 Tenn. 235, 36 S. W. 1090, holding malice 
 may be presumed from statements libelous per se. and not privileged. 
 
 Cited in footnotes to Press Pub. Co. v. McDonald, 26 L. R. A. 531, which 
 authorizes punitive damages for failure of effort to verify truth of libelous dis- 
 patch before printing in newspaper; Nissen v. Cramer. 6 L. R. A. 780, which 
 holds relevant words spoken by party to action during trial privileged. 
 
 Cited in notes (9 L. R. A. 621) on definition of libel; (14 L. R. A. 586) on 
 unjust discrimination. 
 
 Distinguished in Post Pub. Co. v. Butler, 71 C. C. A. 309, 137 Fed. 727, hold- 
 ing a statute declaring the presumption of malice shall be rebutted by the pub- 
 lication of a full retraction, requires that the retraction must be at the demand 
 of the one libeled and is put in operation by such retraction: Gray v. Minne- 
 sota Tribune Co. 81 Minn. 334, 84 N. W. 113, holding an attempted retraction 
 not in compliance with the law was not a statutory retraction. 
 
3 L.R.A. 536] L. R. A. CASES AS AUTHORITIES. 534 
 
 3 L. R. A. 536, HAUPT'S APPEAL, 125 Pa. 211, 17 Atl. 436. 
 Riparian right in stream. 
 
 Cited in Clark v. Pennsylvania R. Co. 145 Pa. 449, 27 W. N. C. 52, 27 Am. St. 
 Rep. 710, 22 Atl. 989, holding railway lias no right to materially affect amount 
 of water in stream by diversion to supply locomotives; Philadelphia & R. R. Co. 
 v. Pottsville Water Co. 182 Pa. 425, 38 Atl. 404, Affirming 18 Pa. Co. Ct. 509, 
 holding lessee of riparian owner has no greater right to use of water than les- 
 sor; Lord v. Meadville Water Co. 135 Pa. 130, 8 L. R. A. 204, 26 W. N. C. 112 T 
 20 Am. St. Rep. 864, 19 Atl. 1007, holding rights of owner of spring forming 
 source of stream only those of riparian owner; Leavenworth v. Prospect Rock 
 Water Co. 8 Kulp, 314, holding small spring sending stream in well-defined 
 course across lands of several owners not private; Lehigh Coal & Nav. Co. v. 
 Scranton Gas & Water Co. 6 Pa. Dist. R. 303, sustaining right to divert 
 and store flood waters; Shippensburg Water Case, 21 Pa. Co. Ct. 89, sustaining 
 borough's right to condemn small mountain stream; Wolf v. Crothers, 21 Pa. 
 Co. Ct. 631, holding stream flowing from spring through natural course, a water- 
 course; Standard Plate Glass Co. v. Butler Water Co. 28 Pittsb. L. J. N. S. 
 166, 5 Pa. Super. Ct. 563, 41 W. N. C. 192, holding water company, which has 
 built works on bank of stream without condemning water, liable for diminish- 
 ing flow; Gring v. Sinking Spring Water Co. 7 Pa. Super. Ct. 68, holding stream 
 which crosses highway and finally flows over land of another owner not pri- 
 vate; Craig v. Shippensburg, 7 Pa. Super. Ct. 529, and Irving v. Media. 10 Pa. 
 Super. Ct. 145, 7 Del. Co. Rep. 378, 44 W. N. C. 134, denying right of upper 
 riparian owner to sell water to nonriparian owners without compensation to 
 lower mill owner; Filbert v. Dechert, 22 Pa. Super. Ct. 366. sustaining right to 
 take from stream water necessary for wants of inmates of state hospital : Peo- 
 ple v. Hulbert, 131 Mich. 173, 64 L. R. A. 275, 91 N. W. 211, sustaining right of 
 upper riparian owner to bathe in lake from which municipality takes its water 
 supply; Hunt v. Graham, 15 Pa. Super. Ct. 47, denying liability for excavating 
 holes in navigable river, in which careless bather drowned; Com. v. Emmers, 221 
 Pa. 303, 70 Atl. 762, 33 Pa. Super. Ct. 157, denying right of riparian owner to 
 discharge impurities from a mine into a stream; Lonsdale Co. v. Woonsocket, 
 25 R. I. 433, 56 Atl. 448, holding that a city has no right as against a lower 
 proprietor to diminish the amount of water by obstructing it for a water sup- 
 ply; Stauffer v. East Stroudsburg, 215 Pa. 144, 64 Atl. 411, holding that a bor- 
 ough has no authority to construct a reservoir to furnish water to a railroad for 
 its locomotives; Octoraro Water Go's Petition, 15 Pa. Dist. Rep. 769, 23 Lane. L. 
 Rev. 198, holding every riparian owner is entitled to the natural flow of water 
 subject to reasonable use of other riparian owners; Union Water Co. v. Enter- 
 prise Oil Co. 21 Pittsb. L. J. N. S. 160, denying to water company injunction 
 restraining oil company from defiling stream from which water company draws 
 its water. 
 
 Cited in footnotes to Canton v. Shock, 58 L. R. A. 637, which holds city liablt, 
 to lower proprietor, for furnishing water to outside persons for transportation, 
 or unreasonable amount to manufactures; Fisk v. Hartford, 38 L. R. A. 474, 
 which denies riparian owner's right to have sewage turned into stream above 
 his mill; Barre Water Co. v. Carnes, 21 L. R. A. 769, which holds owner of fran- 
 chise for supplying water to village entitled to divert sufficient to supply needs, 
 as against water company supplying lower village; New Whatcom v. Fairhavert 
 Land Co. 54 L. R. A. 190, which denies city's right to appropriate waters of 
 navigable lake for water supply, to injury of riparian owner. 
 
 Cited in notes (58 L.R.A. 243) on acquisition of water supply by right of emi- 
 
535 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 539 
 
 nent domain; (37 L.R.A. (N.S.) 312, 314) on right of government to divert water 
 from nontidal stream without compensation to riparian owner. 
 
 Distinguished in Rudolph v. Pennsylvania S. Valley R. Co. 186 Pa. 551, 47 
 L. R. A. 786, 40 Atl. 1083, 14 Montg. Co. L. Rep. 157, 42 W. N. C. 377, holding 
 riparian right in waters of stream . a property right for which compensation 
 must be made by corporation destroying same under eminent domain. 
 Borongrh act of 1851. 
 
 Cited in Nelson v. Warren, 200 Pa. 507, 50 Atl. 250, holding that act of 1873, 
 P. L. 547, does not authorize the construction of public waterworks by borough 
 after having contracted under Laws of 1851 with private company for supply. 
 Right of municipality to supply nonresident with water. 
 
 Cited in note (34 L.R.A. (N.S.) 542) on right or duty of municipality to sup- 
 ply nonresident with water. 
 
 3 L. R. A. 539, WOLFE v. MISSOURI P. R. CO. 97 Mo. 473, 10 Am. St. Rep. 
 
 331, 11 S. W. 49. 
 Evidence of telephone conversations. 
 
 Cited without opinion in Logan v. Berkshire Apartment House, 3 Misc. 
 301, 22 N. Y. Supp. 776. 
 
 Cited in Shawyer v. Chamberlain, 113 Iowa, 744, 86 Am. St. Rep. 411, 84 N. 
 W. 661, and Southwark Nat. Bank v. Smith, 21 Pa. Co. Ct. 6, 7 Pa. Dist. R. 
 185, holding weight, and not admissibility, of evidence affected by nonidentifi- 
 cation of voice at other end of line; Oskamp v. Gadsden, 35 Neb. 12, 17 L. R. 
 A, 442, 37 Am. St. Rep. 428, 52 N. W. 718, holding conversation over telephone, 
 in which central operator repeated the communications to the party at the 
 other end of the line, admissible; C. C. Thompson & W. Co. v. Appleby, 5 Kan. 
 App. 682, 48 Pac. 933, and Guest v. Hannibal & St. J. R. Co. 77 Mo. App. 261, 
 holding party at other end of telephone presumptively the one called for, where 
 both parties connect with same central office; Merrill v. Southwestern Teleg. 
 & Teleph. Co. 31 Tex. Civ. App. 615, 73 S. W. 422, holding overhearing conver- 
 sation as to mother's death by one using line no proof of notice of object of 
 previous call; Young v. Seattle Transfer Co. 33 Wash. 231, 63 L. R. A. 991, 99 
 Am. St. Rep. 942, 74 Pac. 375, denying company rendered liable by telephone 
 statement that expressman took trunk away; Gilpin v. Savage, 60 Misc. 608, 112 
 X. Y. Supp. 802; Star Bottling Co. v. Cleveland Faucet Co. 128 Mo. App. 523, 
 309 S. W. 802, holding thatr telephone conversations stand on same footing as 
 other conversations between parties; Conkling v. Standard Oil Co. 138 Iowa, 602, 
 116 X. W. 822; Miller v. Leib, 109 Md. 425, 72 Atl. 466; Kansas City Star Pub. 
 Co. v. Standard Warehouse Co. 123 Mo. App. 18, 99 S. W. 765; General Hospital 
 Soc. v. New Haven Rendering Co. 79 Conn. 583, 118 Am. St. Rep. 173, 65 Atl. 
 1065, 9 A. & E. Ann. Cas. 168, holding a telephone communication by one ap- 
 parently in charge of office to be admissible; Godair v. Ham Nat. Bank, 225 111. 
 575, 116 Am. St. Rep. 172, 80 N. E. 407, 8 A. & E. Ann. Cas. 447, holding same 
 where conversation was between bank and office in regard to a draft in bank; 
 Western U. Teleg. Co. v. Rowell, 153 Ala. 315, 45 So. 73, holding a telephone 
 communication in relation to business to be admissible though voice is not identi- 
 fied; Hodges v. Weedon, 19 Pa. Dist. R. 732, 57 Pittsb. L. J. 615, holding tele- 
 phone conversation admissible, where person answering phone said that he was 
 person with whom witness had had correspondence concerning claim ; State v. 
 Vickers, 209 Mo. 31, 106 S. W. 999; McCarthy v. Peach, 186 Mass. 68, 70 N. E. 
 1029, 1 A. & E. Ann. Cas. 801, allowing a witness to testify as to what he heard 
 another say over the telephone where such other identifies party to whom he was 
 
3 L.R.A. 539] L. R. A. CASES AS AUTHORITIES. 53G 
 
 talking; American Xat. Bank v. First Xat. Bank, 41 Tex. Civ. App. 397, 92 S. W. 
 439, holding a telephone communication to be admissible though voice is not 
 identified where communication was probable and no other person appeared to 
 have any interest in holding such communication ; Wicks v. Wheeler, 157 111. 
 App. 580; Rogers Grain Co. v. Tanton, 136 111. App. 538, holding the mere fact 
 that the party testifying to a telephone conversation could not identify the voice 
 of the person to whom he was speaking, does not render the conversation incom- 
 petent; Knickerbocker Ice Co. v. Gardiner Dairy Co. 107 Md. 571. 16 L.R.A. 
 (N.S.) 757, 69 Atl. 405, holding communication by telephone admissible though 
 voice is not recognized where party called for a corporation and was informed 
 that he was talking to it and received a product mamifactured by it which was 
 then ordered; Barrett v. Magner, 105 Minn. 121, 127 Am. St. Rep. 531, 117 N. 
 W. 245, holding telephone communication admissible where identity is estab- 
 lished with reasonable certainty by recognition of voice or other circumstances: 
 Young v. Seattle Transfer Co. 33 Wash. 231, 63 L.R.A. 988, 99 Am. St. Rep. 942. 
 74 Pac. 375, holding that the receiving of possession of a trunk by a storage 
 company is not shown by a response to a telephone message where voice is not 
 recognized or identity shown; Gilliland v. Southern R. Co. 85 S. C. 36, 27 L.R.A. 
 (N.S.) 1111, 137 Am. St. Rep. 861, 67 S. E. 20, holding one who answers a tele- 
 phone call from the place of business of a person called for and undertakes to 
 respond as agent is presumed to speak for him. 
 
 Cited in notes (17 L.R.A. 440) on evidence of conversations by telephone; 
 <6 L.R.A. (N.S.) 1181, 1185) on necessity and sufficiency of identification as foun- 
 dation for admission of communication by telephone; (10 Am. St. Rep. 135: 127 
 Am. St. Rep. 539, 541, 543, 545. 547, 552, 554, 555) on law of telephone as ap- 
 plied to contracts and evidence. 
 
 Distinguished in Rueckheim Bros. v. Service Ice Cream & Candy Co. 146 111. 
 App. 610, holding an unidentified telephone call inadmissible where it is not 
 shown to be connected with place of business. 
 Shipper's title. 
 
 Cited in Davis v. Jacksonville S. E. Line, 126 Mo. 77, 28 S. W. 965, holding 
 allegation of possession by shipper sufficient allegation of ownership to sustain 
 action against carrier for failure to deliver. 
 
 Cited in footnote to Carter v. Southern R. Co. 50 L. R. A. 354, which sustains 
 agent's right to bring action in own name against carrier for breach of contract 
 to ship goods. 
 
 Cited in note (26 L.R.A. (N.S.) 439) on right of one to whom goods consigned 
 for sale, to maintain action for damages or loss during transit. 
 Delivery to owner. 
 
 Cited in Shellenberg v. Tremont. E. & M. Valley R. Co. 45 Neb. 491, 50 Am. 
 St. Rep. 561, 63 X. W. 859, holding delivery to owner excuses failure to deliver 
 to consignee; National X'ewark Bkg. Co. v. Delaware L. & W. R. Co. 70 N. J. L. 
 779, 66 L.R.A. 598, 103 Am. St. Rep. 825, 58 Atl. 311, holding delivery of goods 
 to true owner though not consignee relieves carrier from liability. 
 
 Cited in notes (38 L. R. A. 358) as to whom may delivery be made under bill 
 of lading; (37 L.R.A. 178) on delivery to impostor by carrier; (12 L.R.A. (N.S.) 
 259) on duty of carrier to recognize demands of stranger on property delivered 
 for transportation; (33 L.R.A. (N.S.) 686) on right of bailee to assert against 
 bailor defense of surrender of property to true owner; (34 Am. St. Rep. 732, 
 734) on right of common carrier to deliver property to true owner. 
 Status of factor. 
 
 Cited in Beardsley v. Schmi It. 120 Wis. 409, 102 Am. St. Rep. 991, 98 N. W. 
 235, holding that factor to be a trustee of an express trust. 
 
537 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 545 
 
 Judicial notice of scientific facts. 
 
 Cited in note (124 Am. St. Rep. 32) on judicial notice of scientific facts. 
 
 3 L. R. A. 542, SAVILLE v. J5TNA INS. CO. 8 Mont. 419, 20 Pac. 646. 
 
 Followed without opinion in Saville v. London & L. Fire Ins. Co. 8 Mont. 
 
 431, 20 Pac. 650. 
 When action on adjustment may be sustained. 
 
 Cited in Stockton Combined Harvester & Agri. Works v. Glenn's Falls Ins. Co. 
 98 Cal. 569, 33 Pac. 633, denying right to recover in action on promise to pay 
 proportionate share of loss, where no promise to make such payment was made. 
 Effect of additional insurance. 
 
 Cited in footnote to Sweeting v. Mutual F. Ins. Co. 32 L. R. A. 570, which holds 
 earlier insurance policy not avoided by subsequent insurance invalid because 
 of former policy. 
 
 Cited in notes (15 L.R.A. 128) on what constitutes double insurance for pur- 
 pose of apportionment of loss; (36 L.R.A. (N.S.) 351) on applicability of pro- 
 vision for prorating where other policy invalid. 
 
 3 L. R. A. 545, HUSKINS v. CINCINNATI, N. O. & T. P. R. CO. 37 Fed. 504, 
 Removal of canse to Federal court. 
 
 Cited in footnote to McDermott v. Chicago & N. W. R. Co. 3 L. R. A. 455, which 
 holds amount in controversy not element in determining removability for preju- 
 dice. 
 
 Cited in notes (9 L. R. A. 232; 11 L. R. A. 571, 572) on removal of cause for 
 local prejudice. 
 
 After amendment of complaint. 
 
 Cited in Yarde v. Baltimore & O. R. Co. 57 Fed. 915, holding defendant en- 
 titled to removal where amendment increasing damages confers right not pre- 
 viously existing, although time within which properly asked after filing original 
 complaint has elapsed; Mattoon v. Reynolds, 62 Fed. 417, holding right to exist 
 on amendment of suit for injunction, by court for damages by reason of fraud; 
 Cookerly v. Great Northern R. Co. 70 Fed. 278, holding amendment of complaint 
 by discontinuance against resident parties and continuance against foreign party 
 entitles latter to removal within time to answer after discontinuance as to resi- 
 dent parties. 
 
 Cited in footnote to Herndon v. JEtna F. Ins. Co. 10 L. R. A. 53, which holds 
 defective petition for removal of cause not aided by allegations of complaint as 
 to residence. 
 
 Distinguished in Texas v. Day Land & Cattle Co. 49 Fed. 595, holding amend- 
 ment of proceeding to recover penalty by addition of count for civil damages does 
 not, under penal proceedings, subject to removal to Federal court. 
 Sufficiency of affidavit. 
 
 Cited in Amy v. Manning, 38 Fed. 536, holding insufficient an affidavit on be- 
 lief of party seeking removal, without disclosing facts showing existence of preju- 
 dice or local influence: Cooper v. Richmond & D. R. Co. 8 L. R. A. 367, 42 Fed. 
 698, holding sufficient affiant's statement of positive knowledge of prejudice; 
 Walcott v. Watson, 46 Fed. 531, holding sufficient affidavit setting out facts con- 
 stituting prejudice. 
 
 Xotice of application for. 
 
 Cited in Bonner v. Meikle, 77 Fed. 488, and Reeves v. Corning, 51 Fed. 778, 
 holding notice not essential to jurisdiction to grant motion, though better prac- 
 tice; Carson & R. Lumber Co. v. Holtzclaw, 39 Fed. 886, holding affidavits by 
 
3 L.R.A. 545] L. R. A. CASES AS AUTHORITIES. 538 
 
 plaintiff admissible to controvert allegations of petition filed ex parte before 
 granting order. 
 
 Finality of ex parte order. 
 
 Cited in Ellison v. Louisville & N. 11. Co. 50 C. C. A. 530, 112 Fed. 806, hold- 
 ing subject to revision upon seasonable application of plaintiff thereafter contest- 
 ing allegations of petitions on which granted. 
 
 3 L. R. A. 549, MONROE v. HANNAN, 7 Mackey, 197. 
 Classes of persons protected by mechanics' lien law. 
 
 Cited in Leitch v. Central Dispensary & E. Hospital, 6 App. D. C. 252, hold- 
 ing material man contracting with subcontractor not entitled to lien; Nixon v. 
 Cydon Lodge, K. of P. 56 Kan. 305, 43 Pac. 236, holding only subcontractors con- 
 tracting with original contractor within protection of statute. 
 
 Cited in footnote to Hightower v. Bailey, 49 L. R. A. 255, which sustains lien 
 to subcontractors or material men, irrespective of notice of claim or state of 
 account between owner and principal contractor. 
 
 Disapproved in Fruin-Bambrick Constr. Co. v. Jones, 60 Mo. App. 8, holding 
 material men furnishing material to subcontractor entitled to lien. 
 Rights of lien claimants controlled hy contract with owner. 
 
 Cited in Herrell v. Donovan, 7 App. D. C. 342, holding rights of subcon- 
 tractors governed by terms of contract with owner. 
 
 Distinguished in Stephens v. Duffy, 41 Ind. App. 390, 83 N. E. 268, holding, on 
 rehearing, that the servant of a subcontractor as well as the independent con- 
 tractor from a subcontractor are entitled to lien for labor performed upon build- 
 ing under state statute. 
 
 3 L. R. A. 554, STATE v. CHICAGO, B. & Q. R. CO. 37 Fed. 497. 
 Removal of causes; pleadings. 
 
 Cited in footnote to Herndon v. ..Etna F. Ins. Co. 10 L. R. A. 53, which holds 
 petition for removal of cause not aided by allegations as to residence in com- 
 plaint. 
 
 Cited in note (5 L. R. A. 476) on removal of causes. 
 Action to recover penalty under state statute. 
 
 Followed in Arkansas v. St. Louis & S. F. R. Co. 173 Fed. 574, holding an action 
 to recover penalty for violation of any rule made by the railroad and warehouse 
 commission, was a criminal action and not removable. 
 
 Cited in Indiana use of Delaware County v. Alleghany Oil Co. 85 Fed. 873, and 
 Huntington v. Attrill, 146 U. S. 673, 36 L. ed. 1130, 13 Sup. Ct. Rep. 224, holding 
 circuit court cannot entertain suit to recover penalty imposed by way of punish- 
 ment for violation of state statute; Texas v. Day Land & Cattle Co. 41 Fed. 230, 
 holding action to recover penalty for unlawful herding and grazing not remov- 
 able; Gruetter v. Cumberland Teleph. & Teleg. Co. 181 Fed. 252, holding that 
 action by individual to recover penalty against telephone company for discrimi- 
 nation in service is civil action and removable. 
 
 Distinguished in United Breweries Co. v. Colby, 170 Fed. 1011, holding that 
 under a statute giving the person a right of action to recover money paid for 
 intoxicating liquors, such action is not criminal and the circuit court has juris- 
 diction. 
 Action to recover penalty not civil. 
 
 Cited in United States v. Mexican Nat. R. Co. 40 Fed. 771, holding action to 
 recover penalty not within statute giving circuit court original cognizance of 
 all suits of civil nature involving certain amount. 
 
539 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 559 
 
 3 L. R. A. 559, HUSSEY v. COGER, 112 N. Y. 614, 8 Am. St. Rep. 787, 20 X. 
 
 E. 556. 
 Liability for injury caused by negligence. 
 
 Cited in Perry v. Rogers 157 N. Y. 256, 51 N. E. 1021 holding master aot liable 
 for injury due to falling of ledge of rock, weakened by blasting; Mancuso v. 
 Cataract Constr. Co. 87 Hun, 521, 34 N. Y. Supp. 273, nor for injury due to 
 accidental ignition of unexploded blast; Collins v. Crimmins, 11 Misc. 27, 31 
 X. Y. Supp. 860, nor for injury due to falling bank of earth, master having fur- 
 nished safe tools; Fannessey v. Western U. Telegraph Co. 6 Misc. 324, 20 N. Y. 
 Supp. 796, nor for injury to servant struck by brick from properly constructed 
 chute; Hogan v. Smith, 31 N. Y. S. R. 801, 9 N. Y. Supp. 881, holding it a ques- 
 tion for jury whether master had furnished reasonably safe place for servants; 
 Ballard v. Hitchcock Mfg. Co. 71 Hun, 589, 24 N. Y. Supp. 1101, holding it a 
 question for jury whether boiler explosion was due to master's negligence; 
 Hackett v. Masterson, 88 App. Div. 75, 84 N. Y. Supp 751, denying master's liabil- 
 ity where servant failed to use all of adequate appliance furnished to lay pipe; 
 McLaine v. Head & D. Co. 71 N. H. 296, 58 L. R. A. 463, 93 Am. St. Rep. 522, 52 
 Atl. 545, holding foreman's failure to warn laborer in trench of dumping of 
 earth, not breach of duty to provide safe place; Southern Indiana R. Co. v. Har- 
 rell, 161 Ind. 698, 63 L. R. A. 466, 62 X. E. 262, holding foreman of bridge gang 
 does not represent master when disobeying broad instructions not to raise stones 
 when train passing. J 
 
 Cited in note (10 Am. St. Rep. 835) on duty to supply safe machinery, etc., for 
 servants. 
 Of coservant. 
 
 Cited in Filbert v. Delaware & H. Canal Co. 121 N. Y. 212, 23 N. E. 1104, 
 holding master not liable for injury to servant due to coservant's negligent re- 
 moval of planks from pit; McCampbell v. Cunard S. S. Co. 144 N. Y. 557, 39 X. 
 E. 637, nor for injury due to coservant's negligence in fastening skid to dock; 
 Kimmer v. Weber, 151 N. Y. 422, 56 Am. St. Rep. 630, 45 N. E. 860, nor for in- 
 jury due to defective scaffolding, built by servants from suitable materials; 
 Stewart v. New York O. & W. R. Co. 28 N. Y. S. R. 217, 8 N. Y. Supp. 19, nor 
 for injury due to negligence of servants in thawing out dynamite cartridges; 
 Mahoney v. Vacuum Oil Co. 76 Hun, 583, 28 N. Y. Supp. 196, nor for injury due 
 to breaking of planks placed over hole in floor by coservant; Griffiths v. New 
 Jersey & X. Y. R. Co. 5 Misc. 322, 25 N. Y. Supp. 812, nor for injury due to 
 breaking of obviously defective beam selected and put in place by servant and 
 fellow workmen; Hutchinson v. Charles F. Parker & Co. 39 App. Div. 137, 57 
 X. Y. Supp. 168, nor for injury due to striking unexploded dynamite cartridge 
 with pick by servant's coemployee; Schott v. Onondaga County Sav. Bank, 49 
 App. Div. 505. 63 X. Y. Supp. 631, nor for injury due to coservant's negligence 
 in dumping dirt, although foreman promised to give warning of danger; Bate- 
 man v. Xew York C. & H. R. R. Co. 178 N. Y. 89, 70 N. E. 109, reversing 67 App. 
 Div. 244, 73 N. Y. Supp 390, holding it question for jury whether failure to put 
 liinges on trap door was negligence; O'Brien v. Buffalo Furnace Co. 68 App. Div. 
 457, 73 N. Y. Supp. 830, nor for injury to servant uninformed of danger, due to 
 negligence of experienced coservant; Schaub v. Hannibal & St. J. R. Co. 106 Mo. 
 89. 16 S. W. 924, nor for injury to brakeman through trainman's negligence; 
 Hanna v. Granger, 18 R. I. 512, 28 Atl. 659, nor for injury due to negligent 
 starting of engine by coservant; Deep Min. & Drainage Co. v. Fitzgerald, 21 Colo. 
 543, 43 Pac. 210, Ell v. Northern P. R. Co. 1 N. D. 352, 12 L. R. A. 102, 26 Am. 
 St. Rep. 621, 48 N. W. 222, holding liability of mrrter for injury to servant 
 through negligence of coservant does not depend upon relative ranks of the two 
 
L 
 
 3 L.R.A. 559] L. R. A. CASES AS AUTHORITIES. 540 
 
 servants; Vogel v. American Bridge Co. 88 App. Div. 70, 84 N. Y. Supp. 799, 
 holding foreman of bridge gang and "boss of job," with power to hire and dis- 
 charge, not fellow servant; Peet v. H. Remington & Son Pulp & Paper Co. 86 
 App. Div. 105, 83 N. Y. Supp. 524, holding servant's failure to close opening 
 through which logs thrown into grinding room, causing injury, act of fellow 
 servant; Cleveland, C. C. & St. L. R. Co. v. Foland, 174 Ind. 419, 92 N. E. 165, 
 holding that foreman of railroad bridge gang in ordering stays removed from tops 
 of piling acted merely as superior fellow servant; Dair v. New York & P. R. S. S. 
 Co. 204 N. Y. 349, 40 L.R.A.(N.S.) 923, 97 N. E. 711, holding that act of foreman 
 in transferring to other work some of men furnished by master to load vessel 
 was act of fellow servant; Stauber v. McEntee, 29 Jones & S. 340, 19 X. Y. Supp. 
 900, on the liability of master for negligent acts of fellow servant; Standard Pot- 
 tery Co. v. Moudy, 35 Ind. App. 435, 73 N. E. 188, holding master not liable for 
 injuries to servant by negligence of fellow servant; Connolly v. North Jersey 
 Street R. Co. 76 N. J. L. 4, 69 Atl. 487 ; Koszlowski v. American Locomotive Co. 96 
 App. Div. 42, 89 N. Y. Supp. 55; Miller v. American Bridge Co. 216 Pa. 563, 65 
 Atl. 1109; Shaw v. New Year Gold Mines Co. 31 Mont. 149, 77 Pac. 515, holding 
 master not liable for injuries where by the negligence of the. servants the place 
 of working is made unsafe; Haskell & B. Car Co. v. Przezdziankowski, 170 Ind. 
 10, 14 L.R.A.(N.S.) 977, 127 Am. St. Rep. 352, 83 N. E. 626, holding same, and 
 the master is not negligent in not providing a man to warn servants of such 
 dangers as are not reasonably to be apprehended; Gila Valley, G. & N. R. Co. 
 v. Lyon, 8 Ariz. 128, 71 Pac. 957, on the same point. 
 
 Cited in footnotes to Byrnes v. New York, L. E. & W. R. Co. 4 L. R. A. 151, 
 which holds station agent and brakeman fellow servants; St. Louis, I. M. & S. 
 R. Co. v. Rice, 4 L. R. A. 173, which holds yard inspector and yard foreman fel- 
 low servants; Gulf, C. & S. F. R. Co. v. Blohn, 4 L. R. A. 764, which holds loco- 
 motive engineer and fireman fellow servants; Wischam v. Rickards, 10 L. R. A. 
 97, which holds factory employee assisting servants of one delivering fly-wheel, 
 servant of latter; Daniel v. Chesapeake & O. R. Co. 16 L. R. A. 383, which holds 
 conductor and brakeman on different trains not fellow servants; Palmer v. Michi- 
 gan C. R. Co. 17 L. R. A. 637, which holds assistant roadmaster not fellow ser- 
 vant of gang of men working under him. 
 
 Cited in notes (4 L. R. A. 794, 795; 5 L. R. A. 735; 7 L. R. A. 503) on who 
 are fellow servants. 
 
 Distinguished in Wooden v. Western New York & P. R. Co. 43 N. Y. S. R. 220, 
 16 N. Y. Supp. 840, holding master liable to servant for negligence of coservant 
 in letting train down grade by gravity; Bagley v. Consolidated Gas. Co. 13 Misc. 
 8, 34 N. Y. Supp. 187, holding master liable for falling upon servant of plank 
 dislodged from scaffold by hoisting of tank. 
 Of foreman. 
 
 Cited in Quigley v. Levering, 167 N. Y. 64, 54 L. R. A. 74, 60 N. Y. 276, hold- 
 ing master not liable for injury due to foreman's failure to have madiim TV 
 oiled; Jenkinson v. Carlin, 10 Misc. 23, 30 N. Y. Supp. 530, nor for injury due 
 to failure of foreman to see that check rope was attached to derrick: Miller v. 
 Thomas, 15 App. Div. 107, 44 N. Y. Supp. 277, nor for injury due to undermining 
 of coal upon which servant was at work under foreman; Vitto v. Keogan, 15 
 App. Div. 331, 44 N. Y. Supp. 1, nor for injury due to failure of foreman to tell 
 servant that hole directed to be cleaned contained dynamite; Ulrich v. New York 
 C. & H. R. R. Co. 25 App. Div. 4(>.. 51 N. Y. Supp. 5, nor for injury due to mis- 
 judgment of competent foreman as to detail of work; Brown v. Terry, 67 App. 
 Div. 227, 73 N. Y. Sup. 733, nor for injury due to falling of ventilator upon 
 which servant was working under directions of competent foreman; O'Connall 
 
541 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 559 
 
 v. Thompson-Starrett Co. 72 App. Div. 52, 76 N. Y. Supp. 296, nor for failure 
 of competent foreman to furnish sufficient number of men provided by master for 
 the work; O'Brien v. American Dredging Co. 53 N. J. L. 297, 21 Atl. 324, nor 
 for injury due to negligence of foreman, of workmen with whom he labors; 
 Illinois C. R. Co. v. Bolton, 99 Tenn. 277, 41 S. W. 442, nor for injury to section 
 hand through negligence of section foreman engaged at the time as a fellow 
 laborer; Geesen v. Saguin, 115 Iowa, 10, 87 N. W. 745, nor for injury due to 
 negligence of foreman at a guy rope in pulling down pile; McLaine v. Head & 
 D. Co. 71 N. H. 296, 58 L. R. A. 463, 52 Atl. 545, nor for injury due to foreman's 
 failure to give warning of danger; Cullen v. Norton, 24 N. Y. S. R. 103, 5 N. Y. 
 Supp. 523, holding question whether injury was caused by coservant's negligence 
 for jury; Cullen v. Norton, 126 N. Y. 7, 26 N. E. 905, Reversing 29 N. Y. S. R. 
 701, 9 N. Y. Supp. 174, holding master not liable for killing laborer by blast 
 through negligence of foreman; Simone v. Kirk, 57 App. Div. 465, 67 N. Y. Supp. 
 1019, holding master not liable to servant working under foreman's directions, 
 for undermining a pile of ballasting material; Korber v. J. Ottman Lithographing 
 Co. 49 Misc. 463, 97 N. Y. Supp. 1044, holding that the failure of defendant's fore- 
 man to hold the ladder on which plaintiff was working was an act of a fellow 
 servant for which the master was not liable; Tivnan v. Keahon, 117 App. Div. 
 54, 101 N. Y. Supp. 1076 (dissenting opinion), on the liability of master for negli- 
 gent acts of foreman. 
 
 Cited in note (40 L.R.A. (N.S.) 919) on liability of master for foreman's 
 failure to designate enough hands to perform work. 
 
 Distinguished in Hatton v. Hilton Bridge Const. Co. 42 App. Div. 402, 59 N. 
 Y. Supp. 272, holding master liable for injury to servant due to foreman's failure 
 to carry out master's instructions as to construction of scaffold. 
 Of superintendent. 
 
 Cited in Meeker v. C. R. Remington & Son Co. 53 App. Div. 598, 65 N. Y. 
 JSupp. 1116, holding master not liable for injury due to negligent opening of 
 steam valve by master's superintendent; Stockmeyer v. Reed, 55 Fed. 261, nor 
 for injury due to negligence of master's superintendent in pounding and prying 
 upon rock in stone quarry; Mast v. Kern, 34 Or. 250, 75 Am. St. Rep. 580, 54 
 Pac. 950, nor for injury caused by master's superintendent prematurely ordering 
 powder placed in hole. 
 Of vice principal. 
 
 Cited in notes (51 L. R. A. 518, 529, 561, 594, 617) on vice principalship con- 
 sidered with reference to superior rank of negligent servant; (54 L. R. A. 61, 
 111, 117, 118, 121) on vice principalship as determined with reference to char- 
 acter of act causing injury; (4 L. R. A. 852) on master's liability for negligence 
 of superior servant; (11 Am. St. Rep. 596) on liability of master for negligence 
 of subordinate to whom he intrusts entire charge of his business; (75 Am. St. 
 Rep. 587, 589, 590, 603, 634, 637) on who is a vice principal. 
 
 Distinguished in Taylor v. Evansville & T. H. R. Co. 121 Ind. 126, 6 L. R. A. 
 586, 16 Am. St. Rep. 372, 22 N. E. 876, holding master liable where negligence 
 was act of master's representative. 
 Assumption of risk by employee. 
 
 Cited in Brunell v. Southern P. Co. 34 Or. 264, 56 Pac. 129, holding negli- 
 gence of coservant one of risks servant assumes. 
 
 Cited in note (5 L. R. A. 792) on assumption of risk of employment by volun- 
 teer. 
 
3 L.R.A. 563] L. R. A. CASES AS AUTHORISES, 542 
 
 3 L. R. A. 563, COX v. PEARCE, 112 M. Y. 637, 20 N. E. 566. 
 Xotice to agent. 
 
 Cited in Fulton v. Metropolitan L. Ins. Co. 47 N. Y. S. R. 112, 19 N. Y. Supp. 
 660, Affirming 1 Misc. 479, 21 N. Y. Supp. 470, holding insurance company charge- 
 able with agent's knowledge of failure of applicant to comply with application 
 rules; American Cent. Ins. Co. v. Hagerty, 92 Hun, 31, 36 N. Y. Supp. 558, 21 
 Misc. 218, 79 N. Y. S. R. 621, 45 N. Y. Supp. 617, holding notice to general agent 
 of insurance company notice to company; Weber v. Germania F. Ins. Co. 16 
 App. Div. 600, 44 N. Y. Supp. 976, holding evidence showing notice to insurance 
 agent during negotiations for insurance sufficient to go to jury on such question; 
 Lockwood v. Dillenbeck, 104 App. Div. 76, 93 N. Y. Supp. 321; Gardner v. Pitcher, 
 109 App. Div. 109, 95 N. Y. Supp. 678, holding notice to agent of rejection of 
 claim in probating an estate is notice to the principal; Robertson Lumber Co. v. 
 Anderson, 96 Minn. 530, 105 X. W. 972; Straus, G. & Co. v. Sparrow, 148 X. C. 
 313, 62 S. E. 308, holding notice to agent of retirement of partner was notice 
 to principal, when acquired within the course of his agency; Jenkins Bros. Shoe 
 Co. v. Renfrew, 151 N. C. 326, 25 L.R.A.(N.S.) 233, 66 S. E. 212, holding knowl- 
 edge of agent is imputed to principal where acquired within scope of agency, or 
 before and which he had in mind, and not against his interest. 
 Xotice in one transaction as notice in subsequent ones of same nature. 
 
 Cited in Webb v. John Hancock Mut. L. Ins. Co. 162 Ind. 639, 66 L.R.A. 647, 
 69 N. E. 1006, holding that where the mortgagee at the time of making the loan 
 had knowledge that there was an evasion of the statutes, and at the time the 
 second loan was made had same means of information, he will be held charge- 
 able with knowledge at that time. 
 
 3 L. R. A. 565, TRINITY & S. R. CO. v. MEADOWS, 73 Tex. 32, 11 S. W. 145. 
 Damage due to taking or nse of right of way by carrier. 
 
 Cited in Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 173, 9 L. R. A. 300,. 22 Am. 
 St. Rep. 42, 14 S. W. 259, upholding recovery by landowner of damages by 
 reason of vibration, smoke, noxious vapors, and noise of passing trains; Fort 
 Worth & R. G. R. Co. v. Jennings, 76 Tex. 376, 8 L. R. A. 181, 13 S. W. 270, hold- 
 ing portion of right of way granted to one company cannot be conveyed to another 
 without compensating abutting land owner holding fee; Gulf, C. & S. F. R. Co. 
 v. Oakes, 94 Tex. 162, 52 L. R. A. 299, 86 Am. St. Rep. 835, 58 S. W. 999, hold- 
 ing railroad company not liable for spreading to lands of adjoining proprietor 
 of Bermuda grass planted on right of way; Rische v. Texas Transp. Co. 27 Tex. 
 Civ. App. 34, 66 S. W. 324, holding carrier liable for injuries to property of 
 abutting woner; Oklahoma City & T. R. Co. v. Dunham, 39 Tex. Civ. App. 578, 
 88 S. W. 849, holding railroad company not liable for injuries to lot by opera- 
 tion of railroad upon a street under grant reserved in dedication by plat. 
 
 Cited in footnotes to Theobold v. Louisville. N. O. & T. R. Co. 4 L. R. A. 735, 
 which holds steam railroad cannot be operated in street without condemnation or 
 consent of abutting owner; Raining v. New York, L. & W. R. Co. 14 L. R. A. 
 133, which holds abutting owner entitled to compensation on closing of street 
 by railroad embankment. 
 
 Cited in notes (4 L. R. A. 786) on right of eminent domain; (8 L. R. A. 
 453) on right to construct and operate street railroad lines; (47 L. R. A. 782) 
 on pollution of water as element of damages for taking railroad right of way; 
 (106 Am. St. Rep. 255 )on railroads as additional servitudes in highways. 
 Compensation for taking private property. 
 
 Cited in Johnson v. St. Louis, 96 C. C. A. 617. 172 Fed. 34, on the right to com- 
 pensation for loss of lateral support in building sewer. 
 
543 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 567 
 
 Cited in notes (22 Am. St. Rep. 51) on compensation for subsequent damages; 
 (109 Am. St. Rep. 909) on what constitutes "damage" to property within provi- 
 sion that property shall not be taken or damaged for public use without com- 
 pensation. 
 Rigrht to compensation (or injury to riparian rights. 
 
 Cited in Bigham Bros. v. Port Arthur Canal & Dock Co. 100 Tex. 202, 13 L.R.A. 
 (X.S.) 660, 97 S. W. 686, holding canal company liable for compensation where 
 their improvements damaged the riparian rights of another. 
 
 Distinguished in Teel v. Rio Bravo Oil Co. 47 Tex. Civ. App. 160, 104 S. W. 420, 
 holding oil company liable for unnecessary pollution of stream in operating oil 
 well. 
 
 3 L. R. A. 567, EAST LINE & R. RIVER R. CO. v. CULBERSON, 72 Tex. 375, 
 
 13 Am. St. Rep. 805, 10 S. W. 706. 
 Liability for negligence as between lessor and lessee. 
 
 Cited in Trinity & S. R. Co. v. Lane, 79 Tex. 647. 15 S. W. 477, holding rail- 
 road company liable for injury to employees of another company, due to improp- 
 erly constructed tracks; Kansas & G. S. L. R. Co. v. Dorough, 72 Tex. Ill, 10 
 S. W. 711, holding that under general denial defendant may show plaintiff's 
 injury was caused by servants of its receiver; Texas & P. R. Co. v. Moore, 8 
 Tex. Civ. App. 292, 27 S. W. 962, holding lessor not liable to lessee's employee 
 struck by properly built bridge, through lessee's failure to give proper warning 
 of danger; Galveston, H. & S. A. R. Co. v. Daniels, 9 Tex. Civ. App. 256, 28 
 S. W. 548, holding lessor liable for killing of lessee's employee by collapse of 
 bridge; Collins v. Texas & P. R. Co. 15 Tex. Civ. App. 171, 39 S. W. 643, holding 
 carrier's leasing excursion train to association liable for insults to passenger by 
 other members of party; Lee v. Southern P. R. Co. 116 Cal. 105, 38 L. R. A. 73, 
 58 Am. St. Rep. 140, 47 Pac. 932, holding lessor liable to lessee's employee for 
 negligent construction of its road; Hukill v. Maysville & B. S. R. Co. 72 Fed. 753, 
 holding lessor not liable to lessee's servant for negligence of lessee operating road 
 under void lease; Baltimore & O. & C. R. Co. v. Paul, 143 Ind. 28, 28 L. R. A. 218; 
 40 X. E. 519, holding carrier not liable to brakeman of another company for negli- 
 gence of fellow servant on employer's train; Buckner v. Richmond & D. R. Co. 72 
 Miss. 880, 18 So. 449, holding lessor not liable to servant of lessee for injury in 
 use of leased defective machinery; Arrow-smith v. Nashville & D. R. Co. 57 Fed. 
 171, holding lessor under valid lease not liable for injury to passenger through 
 lessee's negligence; Chicago & G. T. R. Co. v. Hart, 209 111. 424, 66 L. R. A. 80, 
 70 N. E. 654 (dissenting opinion), majority holding statutory permission to rail- 
 road to lease property not absolve it from liability for injuries to servants of 
 lessee due to defects in rolling stock; Williard v. Spartanburg U. & C. R. Co. 124 
 Fed. 800; Swice v. Maysville & B. S. R. Co. 116 Ky. 257, 75 S. W. 278, holding 
 lessor not liable for injury to servant of lessee through lessee's negligence; Chi- 
 cago & G. T. R. Co. v. Hart, 209 111. 424, 66 L.R.A. 80, 70 X. E. 654 (dissenting 
 opinion), on the same point; Travis v. Kansas City, S. & G. R. Co. 119 La. 490, 
 10 L.R.A.(X.S.) 1190, 121 Am. St. Rep. 526, 44 So. 274, holding lessor not liable 
 for injury to employee of lessee, because of breach of contract of employment; 
 Illinois C. R. Co. v. Sheegog, 126 Ky. 275, 103 S. W. 323, holding lessor liable for 
 injury to lessee's servant, through a breach of duty by lessee, which it owed to 
 the public: Moorshead v. United R. Co. 203 Mo. 160, 100 S. W. 611, holding lessor 
 street railway not liable for injury to passenger from negligence of lessee in 
 starting car too suddenly; Gulf, C. & S. F. R. Co. v. Gaskill. 103 Tex. 443. 129 
 S. \V. :U5. holding that railroad which constructed spur track to compress com- 
 pany under agreement to operate cars thereon is not liable as matter of law for 
 
3 L.R.A. 567] L. R. A. CASES AS AUTHORITIES. 544 
 
 injury to superintendent of such company by operation of car by such company's 
 employees; Empire Trust Co. v. Egypt R. Co. 182 Fed. 106, holding lessor rail- 
 road not liable for labor or materials furnished lessee in operating road. 
 
 Cited in footnote to Harden v. North Carolina R. Co. 55 L. R. A. 784, which. 
 denies power of lessor of railroad to exempt itself from liability to employees of 
 Jessee. 
 
 Cited in notes (7 L. R. A. 345) on liability of lessor of railroad for injury 
 resulting from negligence of lessee; (37 L. R. A. 83) on responsibility of grantee 
 of public franchises for acts of servants of lessee in possession under unauthorized 
 -contract; (44 L. R. A. 739, 749, 754) on liability of lessor of railroad for inju- 
 ries by negligence of another company using road under lease, license, or other 
 contract; (46 L. R. A. 89-91) on right of servant to recover damages from per- 
 sons other than his master for injuries received in performance of duties; (66 
 L.R.A. 143) on liability of lessor of railroad for negligence of lessee; (58 Am. St. 
 Rep. ]55) on liability of lessor of railroad to third persons. 
 
 Distinguished in Texas & P. R. Co. v. Gay, 86 Tex. 607, 25 L. R. A. 66, 26 
 'S. W. 599, holding railroad company liable for negligent injury to employee of 
 receiver collusively appointed; Washington v. Texas & Ft. S. R. Co. 22 Tex. Civ. 
 App. 191, 54 S. W. 1092, holding carrier not liable for shipper's negligence in 
 loading on its tracks car of connecting line; Oriental Invest. Co. v. Barclay, 
 25 Tex. Civ. App. 554, 64 S. W. 80, sustaining recovery of servants of lessee 
 against lessor when two practically identical; Moorshead v. Union R. Co. 119 Mo. 
 App. 570, 96 S. W. 261, holding lessor not liable for injuries to passengers by 
 servants of lessor, where statute authorized the leasing. 
 .Negligence of coservant. 
 
 Cited in footnote- to Byrnes v. New York, L. E. & W. R. Co. 4 L. R. A. 151, 
 which holds station agent and brakeman fellow servants. 
 Statute of limitations. 
 
 Cited in Green v. Sanford, 34 Neb. 367, 51 N. W. 967, holding action barred 
 as to new defendant brought in after expiration of statute of limitations. 
 
 Distinguished in Becker v. Gulf City Street R. & Real Estate Co. 80 Tex. 486, 
 15 S. W. 1094, holding amendment of defectively stated cause of action brought 
 in time not prevented by statute of limitations. 
 Correction of record. 
 
 Cited in Maxson v. Jennings, 19 Tex. Civ. App. 705, 48 S. W. 781, holding that 
 trial judge may, at next term after judgment, strike from record exceptions not 
 presented within statutory time; Glaser v. Hackett, 38 Fla. 88, 20 So. 820, hold- 
 ing that bill of exceptions, regular in form, cannot be assailed in appellate court ; 
 McClure-Mabie Lumber Co. v. Brooks, 46 W. Va. 733, 34 S. E. 921, holding that 
 court retaining original record of case may, under proper circumstances, correct 
 mistakes therein; Corralitos Co. Mackay, 31 Tex. Civ. App. 318, 72 S. W. 624, 
 and Cain v. State, 42 Tex. Crim. Rep. 211, 59 S. W. 275, sustaining court's power 
 during term, to correct record after approval. 
 
 3 L. R. A. 572, RECE v. NEWPORT NEWS & M. VALLEY R. CO. 32 W. Va. 
 
 164, 9 S. E. 212. 
 Residence of corporation. 
 
 Cited in Humphreys v. Newport News & M. Valley Co. 33 W. Va. 137, 10 S. 
 E. 39, holding foreign corpora ion suable in any county wherein it does business, 
 if process can be legally served there; Amsden v. Norwich Union F. Ins. Soc. 44 
 Fed. 517, holding foreign corporation's appointment of resident agent in Indiana 
 does not constitute it a resident of that state; Tennis Bros. Co. v. Wetzel & T. 
 
545 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 579 
 
 R. Co. 140 Fed. 196, on the right of a foreign corporation to sue in local courts; 
 Baltimore & 0. R. Co. v. Allen, 58 W. Va. 398, 3 L.R.A.(X.S.) 615, 112 Am. St. 
 Hep. 975, 52 S. E. 465, holding a railroad corporation chartered in another state 
 but operating in this, may be proceeded against as garnishee in this state. 
 
 Cited in notes (8 L.R.A. 242) on law of comity as to foreign corporations; 
 (85 Am. St. Rep. 907, 921) on jurisdiction of foreign corporations. 
 
 Distinguished in Chesapeake & O. R. Co. v. Howard, 14 App. D. C. 284, hold- 
 ing lessee under lease void by laws of home state liable for negligent injury to 
 passenger on leased line. 
 Removal of causes. 
 
 Cited in footnotes to Herndon v. JEtna F. Ins. Co. 10 L. R. A. 53, which holds 
 petition for removal of cause not aided by allegations as to residence in com- 
 plaint. 
 
 Cited in notes (11 L. R. A. 568) on right of foreign corporation to remove cause 
 for prejudice or local influence; (24 L. R. A. 294) on conditions against foreign 
 corporation invoking Federal jurisdiction. 
 
 3 L. R. A. 576, BURROWS v. KLUXK, 70 Md. 451, 14 Am. St. Rep. 371, 17 Atl. 
 
 378. 
 Alteration of instruments. 
 
 Cited in Bank of Herington v. Wangerin, 65 Kan. 426, 59 L. R. A. 718, 70 
 Pac. 330, holding note fraudulently raised by payee void in hands of innocent 
 purchaser; Walsh v. Hunt, 120 Cal. 53, 39 L. R. A. 700, 52 Pac. 115, holding 
 mortgage note, raised by stranger after execution, good as to the amount for 
 which originally executed; Exchange Nat. Bank v. Bank of Little Rock, 22 L. 
 II. A. GS9, 7 C. C. A. 121, 19 U. S. App. 152, 58 Fed. 143, holding bank not liable 
 to innocent purchaser from one of its own clerks for draft raised by him; Mer- 
 ritt v. Boyden, 191 111. 142, 85 Am. St. Rep. 246, 60 N. E. 907, holding no alter- 
 ation in note; Good Roads Machinery Co. v. Moore, 25 Ind. App. 484, 58 X. E. 
 540, holding alteration of contract by sales agent, increasing his territory, re- 
 leases surety on bond; Gisriel v. Burrows, 72 Md. 374, 20 Atl. 240, holding that 
 one understood by all parties to be indorser cannot be held as maker of note; 
 Young v. Baker, 29 Ind. App. 135, 64 X. E. 54, holding unauthorized insertion 
 of name of ba'nk where note payable, material alteration; Merchants' Xat. Bank 
 v. Baltimore, C. & R. S. B. Co. 102 Md. 580, 63 Atl. 108, holding change of date 
 of negotiable bill of lading was material and avoided the instrument; National 
 Exch. Bank v. Lester, 194 X. Y. 470, 21 L.R.A. (X.S.) 409, 87 N. E. 779, 16 A. & 
 E. Ann. Cas. 770, holding accommodation indorser not liable to bona fide holder 
 for amount shown by face of note after its alteration after delivery. 
 
 Cited in notes (35 L. R. A. 470) on alteration of note as affecting bona fide 
 holders; (22 L. R. A. 686) on liability of maker or drawer on raised nego- 
 tiable paper; (6 L.R.A. 470) on effect of alteration of written instrument; (86 
 Am. St. Rep. 108, 111, 121) on unauthorized alteration of written instruments; 
 (4 Eng. Rul. Cas. 647) on estoppel to deny liability to bona fide holder on com- 
 mercial paper issued in blank and subsequently filled up. 
 
 3 L. R. A. 579, NEWBOLD v. PEABODY HEIGHTS CO. 70 Md. 493, 17 Atl. 
 
 372. 
 Covenants and agreements in conveyances. 
 
 Cited in Peabody Heights Co. v. Willson, 82 Md. 198, 36 L. R. A. 395, 32 Atl. 
 386, refusing specific performance of land contract because of building restric- 
 tion; West Boundary Real Estate Co. v. Bayless, 80 Md. 507, 31 Atl. 442. hold- 
 ing grantee in deed not bound by covenants in contract not referred to in deed; 
 L.R.A. Au. Vol. I. 35. 
 
3 L.R.A. 579] L. R. A. CASES AS AUTHORITIES. 546 
 
 Foreman v. Sadler, 114 Md. 577, 80 Atl. 298, holding that purchaser from grantee 
 of lot under deed containing building restrictions takes title free from restric- 
 tions, where original owner sells greater part of tract free from restrictions; 
 Guyer v. Auers, 132 111. App. 530, upholding a restrictive covenant against the 
 sale of intoxicating liquors; Dawson v. Western Maryland R. Co. 107 Md. 88, 14 
 L.R.A.(X.S.) 812, 126 Am. St. Rep. 337, 68 Atl. 301, 15 A. & E. Ann. Cas. 678, 
 holding one purchasing with notice from subvendee, land on which a formei 
 vendor has imposed a restriction as to its use, enforceable against his vendee, 
 takes subject to restriction; 
 
 Cited in notes (20 L.R.A. 637) on exception and reservation of easements; 
 (15 L.R.A. (>i.S.) 1131) on recorded agreement restricting use of property as 
 binding successor in title; (34 Am. St. Rep. 708) on implied grant of easements 
 by severance and sale of property; (95 Am. St. Rep. 215) on validity of condi- 
 tions and restrictions in deed; (15 Eng. Rul. Cas. 284) on necessity of pur- 
 chaser observing restrictive stipulations known to him. 
 Specific performance of contract for sale of land. 
 
 Cited in Callaway v. Baltimore, 99 Md. 321, 57 Atl. 661; Shea v. Evans, 109 1 
 Md. 234, 72 Atl. 600, holding a court of equity would not decree specific per- 
 formance of bare contract of sale, where the vendor cannot give a marketable 
 title. 
 Enforcement of covenants. 
 
 Annotation cited in Greensboro Ferry Co. v. New Geneva Ferry Co. 34 Pa. Co. 
 Ct. 37, on the enforcement of covenants in equity. 
 
 3 L. R. A. 583, SPRING GARDEN HANK v. RULINGS LUMBER CO. 32 \V. 
 Va. 357, 9 S. E. 243. 
 
 Report of decision in proceedings to administer trust under subsequent deed 
 by same defendant, in Hulings v. Hulings Lumber Co. 38 W. Va. 363, 18 S. E.620. 
 Grants to corporation before charter granted. 
 
 Cited in Clarksburg Electric Light Co. v. Clarksburg, 47 W. Va. 749, 50 L. 
 R. A. 152, 35 S. E. 994, holding grant of franchise to corporation not then char- 
 tered, which corporation after being chartered accepts, valid; Chicago Teleph. 
 Co. v. Northwestern Teleph. Co. 199 111. 346, 65 N. E. 329, Affirming 100 111. App. 
 57, holding ordinance granting franchise, presented before, but not passed till 
 after, corporation fully organized, valid; Santaquin Min. Co. v. High Roller Min.. 
 Co. 25 Utah, 291, 71 Pac. 77, holding placing of deed in hands of promoter for 
 company when formed, not a delivery; AVheeling Creek Gas, Coal & Coke Co. v. 
 Elder, 54 W. Va. 343, 46 S. E. 357, on the power of a corporation to ratify grants 
 to its promoters. 
 
 Distinguished in Bonanza Min. & Smelter Co. v. Ware, 78 Ark. 318, 95 S. W. 
 765, holding corporation not liable upon notes signed by two persons as its presi- 
 dent and secretary before its incorporation, in pay for land. 
 
 3 L. R. A. 587, TAYLOR MFG. CO. v. HATCHER, 39 Fed. 440. 
 Loss of profits as element of damage. 
 
 Cited in Collins v. Lavelle, 19 R. I. 46. 31 Atl. 434, holding, in action for 
 breach of contract to sell store, evidence of previous profits admissible on ques- 
 tion of damages for loss of business; Mott v. Chew, 137 Fed. 198, on the recovery 
 of profits as damages; Emerson v. Pacific Coast & N. Packing Co. 96 Minn. 7. 1 
 L.R.A.(N.S.) 450, 113 Am. St. Rep. 603, 104 X. W. 573, 6 A. & E. Ann. Cas. 973, 
 holding profits recoverable as damages where they are such as would have proxi- 
 mately resulted from the contract, excluding conjectural ones; Young v. Metcalf 
 
547 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 594 
 
 Land Co. 18 X. D. 449, 122 X. W. 1101, holding that real estate broker is entitled 
 to profits on proposed sales disapproved of by owner on untenable ground; Calla- 
 han v. Chickasha Cotton Oil Co. 17 Okla. 559, 87 Pac. 331, holding that for breach 
 of contract for failure to supply mill machinery, the profits could not be recovered 
 as damages, where they depended upon a satisfactory market. 
 
 Cited in footnote to Blagen v. Thompson, 18 L. R. A. 315, which holds loss of 
 profits of surrendered land contract recoverable for breach of contract to con- 
 struct motor railway. 
 
 Cited in notes (53 L. R. A. 35) on loss of profits as an element of damages for 
 breach of contract; (53 L. R. A. 40, 41) on same; effect of uncertainty of amount; 
 (53 L. R. A. 44) on same; distinction between direct and collateral profits. 
 Measure of dnmngres. 
 
 Cited in Purdorn Xaval Stores Co. v. Western U. Teleg. Co. 153 Fed. 331, hold- 
 ing measure for failure to deliver telegram was the difference between the price 
 specified in the telegram and the value of what was offered; Portland Co. v. 
 Searle, 169 Fed. 973, holding measure for breach of executory contract to con- 
 struct and deliver railway equipment was the outlay and expenses less value of 
 materials on hand, and profits he would have realized; Thebideau v. Cairns, 171 
 Fed. 239, holding measure of damages for failure to load schooner was the differ- 
 ence between what it would have earned, and what it did earn plus damage for 
 additional time to load. 
 
 Cited in footnote to Rockefeller v. Merritt, 35 L. R. A. 633, which holds measure 
 of damage for fraud in inducing exchange of property, difference between actual 
 value of property parted with and that received. 
 
 Cited in notes (4 L. R. A. 670) on measure of damages on breach of contract 
 to convey; (6 L. R. A. 552; 11 L. R. A. 681) on damages for breach of contract; 
 (18 L. R. A. 386) on measure of damages for breach of implied warranty. 
 Proximate cause. 
 
 Cited in note (6 L. R. A. 194) on proximate and remote cause of injury. 
 Exceptions to master's report. 
 
 Cited in Cutting v. Florida R. & Nav. Co. 43 Fed. 747, holding exceptions not 
 alluding to evidence nor supported by statement, not to be considered; Folkmire 
 v. Michigan United R. Co. 157 Mich*. 166, 121 X. W. 811, 17 A. & E. Ann. Gas. 
 970. holding it contributory negligence per se to drive upon a railroad crossing 
 without looking, when the train by which the deceased was killed was in plain 
 sight. 
 
 3 L. R. A. 594; FREEMAN v. DULCTH, S. S. & A. R. CO. 74 Mich. 86, 41 N. W. 
 
 87i>. 
 Ditty of traveler or carrier approaching crossing:. 
 
 Cited in Baker v. Kansas City, Ft. S. & M. Co. 122 Mo. 571, 26 S. W. 20, hold- 
 ing negligence of company in not giving signals at crossing does not excuse 
 traveler from looking and listening; White v. Chicago & X. W. R. Co. 102 Wis. 
 497, 78 X. W. 585, holding failure to close crossing gates does not excuse negli- 
 gence of traveler; Shirk v. Wabash R. Co. 14 Ind. App. 133, 42 N. E. 656; Graf 
 v. Chicago & N. W. R. Co. 94 Mich. 583, 54 X. W. 388; Grostick v. Detroit, L. 
 & X. R. Co. 90 Mich. 598, 51 X. W. 667, holding failure of person crossing rail- 
 road to use senses to ascertain proximity of train, negligence as mutter of law; 
 Chicago, St L. & P. R. Co. v. Butler, 10 Ind. App. 274, 38 X. E. 1 (dissenting 
 opinion), majority holding one not negligent as matter of law in approaching 
 (inking while looking and listening; Monroe v. Lake Shore & M. S. R. Co. 129 
 Mich. 311, 88 X. W. 888, holding company liable to traveler, who looked and 
 
3 L.R.A. 594] L. R. A. CASES AS AUTHORITIES. 548 
 
 listened, for injuries, from unlighted and detached car; Kinyon v. Chicago & N. 
 W. R. Co. 118 Iowa, 359, 96 Am. St. Rep. 391, 92 N. W. 40, holding running of 
 train at high rate of speed across dangerous crossing, without sounding signal, 
 negligence; Hampel v. Detroit, G. R. & W. R. Co. 138 Mich. 3, 108 Am. St. Rep. 
 275, 100 N. W. 1002, on the same point. 
 
 Cited in footnotes to Lake Shore & M. S. R. Co. v. Franz, 4 L. R. A. 389, which 
 holds no amount of negligence excuses driving on crossing without stopping, 
 looking, and listening; Patton v. East Tennessee, V. & G. R. Co. 12 L. R. A. 184, 
 which holds person negligent in going on track immediately after train passes 
 without looking and listening; Louisville & N. R. Co. v. Webb, 11 L. R. A. 674, 
 which holds failure to use senses before crossing track not excused by unlawful 
 speed of train and watchman's failure to do duty; Keenan v. Union Traction Co. 
 58 L. R. A. 217, which holds failure to look for train within 35 feet of track, 
 negligence; Western & A. R. Co. v. Ferguson, 54 L. R. A. 802, which holds fail- 
 ure to look within 30 feet of track will not prevent recovery. 
 
 Cited in notes (7 L. R. A. 318) on duty of traveler to stop, look, and listen; 
 (9 L.R.A. 163) on recovery defeated by contributory fault; (21 L.R.A.(X.S.) 434) 
 as to whether wantonness or wilfulness may be predicated of omission of a duty 
 before discovery of person in peril on track; (20 Am. St. Rep. 114, 115) on duty 
 of railroad company toward person approaching track; (20 Am. St. Rep. 453) 
 on duty of railroad company as to persons on track. 
 Xes'ligence ; duty of railroad to uuard crossings. 
 
 Cited in English v. Southern P. R. Co. 13 Utah, 421, 35 L. R. A. 160, 57 Am. 
 St. Rep. 779, 45 Pac. 47, holding statute requiring locomotives to whistle and 
 ring at crossings does not excuse railroad's failure to adopt further precautions 
 dictated by common prudence; Grand Trunk R. Co. v. Ives, 144 U. S. 422, 36 
 L. ed. 491, 12 Sup. Ct. Rep. 679, holding duty to provide flagmen or gates at cross- 
 ings may exist outside of statute, if situation reasonably requires it; Willet v. 
 Michigan C. R. Co. 114 Mich. 416, 72 N. VV. 260, holding negligence of railroad 
 in not guarding crossing where view obstructed, question for jury; Philip v. Hera- 
 ty, 135 Mich. 452, 97 N. W. 963, holding it question for jury whether it was neg- 
 ligent to back train across street without flagging, in absence of watchman; 
 Barnum v. Grand Trunk Western R. Co. 148 Mich. 373, 111 N. W. 1036, holding 
 that it is not negligence per se not to have flagman at a railway crossing, but it 
 depends on circumstances of the case; Folkmire v. Michigan United R. Co. 1.37 
 Mich. 162, 121 N. W. 811, 1 7 A. & E. Ann. Cas. 979, holding it a question to be 
 determined by circumstances of each case whether railroad company was negli- 
 gent in not keeping flagman at crossing. 
 
 Cited in notes (9 L. R. A. 159) on duty of railway to warn traveler on ap- 
 proach to highway crossing; (9 L. R. A. 161) on high rate of speed; (8 L. R. A. 
 783) on when contributory negligence not a defense; (22 L.R.A.(N.S.) 238) on 
 aiecessity for flagman or gateman at crossing where traveler's view is obstructed. 
 
 3 L. R. A. 599, Re EYSAMAN. 113 N. Y. 62, 20 X. E. 613. 
 
 Followed without discussion in Parks v. Andrews, 67 Hun, 650, 23 N. Y. Supp. 
 1153. 
 Reversible error; evidence. 
 
 Cited in Harvey v. Van Cott, 71 Hun, 401, 25 N Y. Supp. 25, holding judgment 
 supported by competent, undisputed evidence not reversible for admission of 
 improper evidence; Re Bernsee, 71 Hun, 30. 24 N. Y. Supp. 504, holding imma- 
 terial evidence, improperly admitted, not reversible error; Jones v. Perkins. 20 
 App. Div. 44, 51 N. Y. Supp. 380, and Peyton v. Now York Elev. R. Co. 62 Hun, 
 539, 17 N. Y. Supp. 244, holding reversal proper where evidence erroneously 
 
549 L. E. A. CASES AS AUTHORITIES. [3 L.R.A. 599 
 
 admitted cannot be said not to have affected result; Heyne v. Doerfler, 124 N. 
 Y. 510, 20 X. E. 1044, holding that judgment not sustained by preponderance 
 of competent evidence must be reversed; Huntley v. Huntley, 73 Hun, 264, 26 N. 
 Y. Supp. 266, holding exclusion of material evidence by referee reversible error. 
 
 I ited in note (8 L. R. A. 609) on objections to evidence, to indefinite to save 
 question for review. 
 Exception ; waiver of. 
 
 (.'ited in Metropolitan Nat. Bank v. Commercial State Bank, 104 Iowa, 692, 74 
 X. W. 26, holding exception to erroneous evidence not waived by failure to 
 object to subsequent similar evidence. 
 Sufficiency of objection to evidence. 
 
 Cited in People v. Smilie, 118 App. Div. 614, 103 N. Y. Supp. 348, holding ob- 
 jection to testimony made at the time the preliminary testimony was being in- 
 troduced was properly made, though the formal offer had not then been made. 
 Personal transactions with deceased or incompetent persons. 
 
 Cited in Petrie v. Petrie, 126 X. Y. 683, 4 Sup. Ct. App. 482, 27 N. E. 958; 
 Re Dunham, 121 N. Y. 577, 24 X. E. 932; Devlin v. Greenwich Sav. Bank, 125 
 N. Y. 758, 4 Silv. Ct. App. 606, 26 N. E. 744; Eighmie v. Taylor, 68 Hun, 583 r 
 23 N. Y. Supp. 248; Re Palmateer, 78 Hun, 49, 28 N. Y. Supp. 1062; Gambee v. 
 Gambee, 24 App. Div. 448, 48 N. Y. Supp. 501; Leary v. Corvin, 63 App. Div. 
 154, 71 N. Y. Supp. 335, Affirming 29 Misc. 73, 60 N. Y. Supp. 563, holding 
 interested witness cannot testify to conversations between deceased and third 
 persons, though not participating; Boyd v. Boyd, 164 N. Y. 245, 58 N. E. 118 r 
 holding party to action cannot testify to signature of disputed instrument by 
 deceased; Adams v. Morrison, 113 N. Y. 158, 20 N. E. 829, holding plaintiff can- 
 not testify to entry by deceased in book in his presence, to prove existence of 
 copartnership; Herrington v. Winn. 60 Hun, 237, 14 N. Y. Supp. 612, holding 
 claimant against estate cannot testify that certain figures were entered by third 
 person in book by deceased's direction; Davis v. Davis, 86 Hun. 403, 33 N. Y. 
 Supp. 477, holding party cannot give evidence of acts and conversation of deceased 
 to sustain alleged gift to him; Dolan v. Leary, 69 App. Div. 461, 74 N. Y. Supp. 
 981, holding party incompetent to testify to execution of deeds by deceased to 
 intermediary and by intermediary to him; Richards v. Crocker, 49 N. Y. S. R. 
 250, 20 N. Y. Supp. 954, holding interested witness cannot testify to physical 
 condition of deceased; Re Beck, 6 App. Div. 215, 39 N. Y. Supp. 810, holding 
 testimony of subscribing witness beneficially interested in will competent on 
 probate; Re Bernsee, 141 N. Y. 392, 36 N. E. 314, holding beneficiary under will 
 cannot testify to conversation between testator and attesting witness; Hutton 
 v. Smith, 175 N. Y. 381, 67 N. E. 633, holding admission of testimony of con- 
 versation between trustee and another in plaintiff's presence, not reversible error, 
 where same fact appears by other evidence; Trowbridge v. Stone, 42 W. Va. 
 458. 26 S. E. 363, holding interested witnesses cannot testify as to value of labor 
 performed by insane plaintiff for committee; McCoy v. Conrad, 64 Xeb. 155, 89 
 X*. W. 665. on the disqualification of the heirs of testator as witnesses to trans- 
 actions and conversation with deceased; Hutton v. Smith, 175 X. Y. 381, 67 
 X. E. 633, holding plaintiff in an action against the heirs at law of an alleged 
 trustee, cannot testify to a conversation between the trustee and another, to 
 establish a trust in lands; Burdick v. Burdick, 180 X". Y. 264, 73 X. E. 23, 
 holding in an action to set aside a deed executed by a decedent because obtained 
 without consideration, by undue influence, testimony by the grantee of a con- 
 versation between grantor and another was inadmissible; Holland v. Holland, 98 
 App. Div. 375, 90 N. Y. Supp. 208, holding evidence of personal transactions and 
 
3 L.R.A. 599] L. E. A. CASES AS AUTHORITIES. 550 
 
 communications with a testator, since deceased, is incompetent, although the wit- 
 ness, a party in interest took no part in them; Pringle v. Burroughs, 100 App. 
 Div. 369, 91 N. Y. Supp. 750, holding legatee under a prior will is a party in 
 interest in an action to test validity of subsequent will; Wilber v. Gillespie, 127 
 App. Div. 608, 112 X. Y. Supp. 20, holding that testimony by plaintiff to prove 
 delivery by reason of possession of note by her at the time of the maker's death, 
 was inadmissible; Boyd v. Boyd, 31 N. Y'. Civ. Proc. Rep. 258, holding testimony 
 of defendant's wife and the defendant as to the deceased signing the disputed, 
 paper, was inadmissible; Griswold v. Hart, 142 App. Div. 116, 126 N. Y. Supp. 
 1011, 2 N. Y. Civ. Proc. Rep. (N. S.) 301, holding that son-in-law cannot testify to 
 statements of intestate to daughter in his presence to establish gift to her. 
 
 Cited in note (29 L.R.A.(X.S.) 1186, 1187) on competency of interested witness 
 to testify as to transactions with deceased in which he did not participate. 
 Taxation of transfer in contemplation of death. 
 
 Cited in Re Spaulding, 2 Misc. 422, 50 N. Y. Supp. 398, holding gifts made 
 two years before death, followed by absolute possession by donee, not subject 
 to transfer tax. 
 
 3 L. R. A. 606, GRANT v. KUGLAR, 81 Ga. 637, 12 Am. St. Rep. 348. 8 S. E. 
 
 878. 
 Riparian rights. 
 
 Cited in Horton v. Fulton, 130 Ga. 468, 60 S. E. 1059, holding owners of saw- 
 mill liable for throwing sawdust into a non-navigable stream so as to cause it to 
 overflow lands of others; Price v. High Shoals Mfg. Co. 132 Ga. 255. 22 L.R.A. 
 (N.S.) 691, 64 S. E. 87 (dissenting opinion), on the effect of statutes on the ri- 
 parian rights. 
 
 Cited in notes (7 L. R. A. 614) on riparian rights; (41 L. R. A. 746) on cor- 
 relative rights of upper and lower proprietors as to acceleration of flow of 
 stream; (10 L.R.A. 255) on nuisance, casting water on land; (85 Am. St. Rep. 
 725) on right of landowner to accelerate or diminish flow of water to or from 
 lands of another; (23 Eng. Rul. Gas. 810) on right to erect barriers against the 
 sea. 
 
 3 L. R. A. 607, JUDK1NS v. WOODMAN, 81 Me. 351, 17 Atl. 298. 
 Trespass for removal of fixtures by mortgagor. 
 
 Cited in note (43 Am. St. Rep. 435) on maintenance by mortgagee of trespass 
 for waste or removal of fixtures by mortgagor. 
 
 3 L. R. A. 608, HUNT v. ADAMS, 81 Me. 356, 17 Atl. 298. 
 
 3 L. R. A. 609, HAINES v. HALL, 17 Or. 165, 20 Pac. 831. 
 Floatable streams as navigable waters. 
 
 Cited in Hallock v. Suitor, 37 Or. 12, 60 Pac. 384, holding stream having 
 floatable capacity at certain periods navigable; United States v. Rio Grande Dam 
 A Irrig. Co. 9 N. M. 299, 51 Pac. 674, holding stream not subserving in natural 
 state, at regular seasons, purposes of commercial intercourse, not navigable ; 
 Nutter v. Gallagher, 19 Or. 381, 24 Pac. 252, holding stream occasionally capable 
 of floating logs, but not usable by general public, not navigable; Griffith v. 
 Holman, 23 Wash. 354, 54 L. R. A. 182, 83 Am. St. Rep. 821, 63 Pac. 239, hold- 
 ing stream incapable of floatage of practical utility as public highway not navi- 
 gable; Kamm v. Normand, 50 Or. 11, 11 L.R.A.(N.S-) 291, 126 Am. St. Rep. 698, 
 Dl Pac. 448, holding a stream not navigable which at all times, except extreme 
 3iigh water, was unfit for floating logs. 
 
551 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 620 
 
 Cited in footnote to Rigney v. Tacoina Light & Water Co. 26 L. R. A. 425, 
 which holds as watercourse united volume of stream spreading out into swamp 
 or lake. 
 
 Cited in notes (42 L. R. A. 327) on what waters are navigable; (5 L. R. A. 
 393) on navigable watercourses; (41 L. R. A. 672) on right to use stream for 
 floating logs; (12 L.R.A. 632) on navigable waters as public highways; (126 Am. 
 St. Rep. 726, 727, 729) on what waters are navigable. 
 H iiih t> of riparian owners. 
 
 Cited in footnote to Brooks v. Cedar Brook & S. C. River Improv. Co. 7 L. R. 
 A. 460, which denies recovery to riparian owner for washing away of soil occa- 
 sioned by dam. 
 
 Cited in notes (4 L. R. A. 573; 7 L. R. A. 614) on rights of riparian owners; 
 (5 L. R. A. 62) on riparian rights of owners bounding on navigable streams; 
 {8 L. R. A. 92) on title to soil below ordinary high-water mark; (8 L. R. A. 
 579) on property in unnavigable lakes; (13 L. R. A. 395) on right to erect 
 embankment; (9 L. R. A. 812) on damages recoverable for diversion of water 
 of stream; (4 L.R.A. (X.S.) 878) on right of way on shore. 
 
 Explained in Hunter v. Grande Ronde Lumber Co. 39 Or. 451, 65 Pac. 598, 
 holding that riparian owner to recover damages must show negligent use of 
 floatable stream. 
 Equity jurisdiction; absence of adequate legal remedy. 
 
 Cited in Norton v. Elwert, 29 Or. 589, 41 Pac. 926, holding equity may compel 
 removal of encroaching wall; Strawberry Valley Cattle Co. v. Chipman, 13 Utah, 
 471, 45 Pac. 348, holding equity may enjoin repeated continuing trespasses on 
 grazing lands. 
 
 Cited in footnote to Lowery v. Pekin, 51 L. R. A. 301, which sustains injunction 
 against city taking possession of embankment built and owned by lessor from 
 city. 
 
 Cited in notes (5 L. R. A. 662) on remedy in equity to protect private rights; 
 (6 L. R. A. 90) on injunction to restrain threatened wrong; (11 L. R. A. 208) 
 on equitable relief against waste and trespass; (41 L. R. A. 497) on injunction 
 against injuries to riparian owner by running logs in streams; (13 L.R.A.(X.S-) 
 178) on injunction against repeated trespass; (36 L. ed. U. S. 84) on what rem- 
 edy at law will prevent remedy in equity; (10 Eng. Rul. Cas. 314) on mandatory 
 injunction for protection of easement. 
 
 3 L. R. A. 620, FURGESON v. JONES, 17 Or. 204, 11 Am. St. Rep. 808, 20 Pac. 
 
 842. 
 Adoption of heir. 
 
 Cited in Watts v. Dull, 184 111. 90, 75 Am. St. Rep. 141, 56 N. E. 303, holding 
 statute conferring power of adoption must be strictly followed; Non-She-Po v. 
 Wa-Win-Fa, 37 Or. 216, 82 Am. St. Rep. 749, 62 Pac. 15, holding decree of court 
 pursuant to statute necessary to legal adoption; Sarazin v. Union R. Co. 153 
 Mo. 485, 55 S. W. 92, holding defective acknowledgment invalidates deed of 
 adoption; Webb v. Jackson, 6 Colo. App. 214, 40 Pac. 467, holding right of 
 adopted children to inherit fixed by statute; Re Renton, 10 Wash. 542, 39 Pac. 
 145, holding presumptive adoption does not sustain right to contest will; 
 Thomas v. Thomas. (i4 Xeb. 589, 90 N. W. 630, holding that father's intention to 
 make illegitimate child heir need not appear in writing; Re Renton, 10 Wa*h. 
 542, 39 Pac. 145, holding clear proof of adpotion necessary, and presumption not 
 prevail; Woodward's Appeal, 81 Conn. 165, 70 Atl. 453; Henry v. Taylor, 16 S. D. 
 428, 93 N. W. 641, holding that there must be a strict compliance with the stat- 
 utes in the adoption of a child; Sires v. Melvin, 135 Iowa, 479, 113 N. W. 
 
3 L.R.A. 620] L. R. A. CASES AS AUTHORITIES. 552 
 
 106 (dissenting opinion), on the necessity of strict compliance with provisions of 
 statute providing adoption of child; Tiffany v. Wright, 79 Xeb. 14, 112 X. Vf. .311, 
 holding that an adoption of child against the wishes of the parents, can only 
 be made by strict compliance with the statute; Willis v. Bell, 86 Ark. 478, 111 
 S. W. 808, holding decree of adoption void, where made without consent of the 
 father, though that of the mother was given, and she had been awarded the cus- 
 tody of the child in a decree of divorce, where statute required consent of 
 parents. 
 
 Cited in footnote to \ an Matre v. Sankey, 23 L. R. A. 665, which authorizes 
 descent of land to child adopted in other state. 
 
 Cited in notes (30 L.R.A. (N.S.) 147, 151) on validity of adoption without con- 
 sent of parents; (39 Am. St. Rep. 216, 218, 219, 221) on adoption of children; 
 (109 Am. St. Rep. 675) on effect of adoption on kindred of adopting person. 
 
 Distinguished in Re Johnson, 98 Cal. 539, 21 L. R. A. 382, 33 Pac. 460, hold- 
 ing irregularity in failing to examine child does not invalidate adoption: Mul- 
 lany's Adoption, 25 Fa. Co. Ct. 564, holding adoption not invalid for failure to 
 file consent, not required by statute to appear of record; Xugent v. Powell, 4 
 Wyo. 202, 20 L. R. A. 206, 62 Am. St. Rep. 17, 33 Pac. 23, holding abandonment 
 by father gives mother right to relinquish child in adoption proceedings. 
 Suit to aiinnl decree void on face. 
 
 Cited in Blythe v. Hinckley, 84 Fed. 254, holding that Federal court will not 
 entertain suit to annul decree of state court for want of jurisdiction appearing 
 on record. 
 Jurisdiction conferred by statute must affirmatively appear. 
 
 Cited in Ex parte Clark, 87 Cal. 641, 25 Pac. 967, holding in adoption proceed- 
 ings jurisdiction of subject-matter and persons must affirmatively appear; Hind- 
 man v. O'Connor, 54 Ark. 643, 13 L. R. A. 498, 16 S. W. 1052, holding record 
 must affirmatively show court's jurisdiction to validate order removing minor's 
 disabilities; Kelley v. Kelley, 161 Mass. 118, 25 L. R. A. 809, 42 Am. St. Rep. 389, 
 36 X. E. 837, holding jurisdiction of court of another state to grant alimony 
 must be proved to obtain execution on judgment; De Vail v. De Vail, 57 Or. 137,. 
 109 Pac. 755. holding that court of general jurisdiction becomes inferior court 
 when it takes cognizance of cause pursuant to statutory authority and its record 
 must affirma lively show jurisdiction. 
 Decree rendered without jurisdiction collaterally assailable. 
 
 Cited in Little Rock Junction R. R. v. Burke, 13 C. C. A. 348, 27 U. S. App. 
 736, 66 Fed. 90, holding decree of sale for taxes collaterally impeaclmble, when 
 want of jurisdiction appears on record; Frankel v. Satterfield, 9 Houst. (Del.) 
 206, 19 Atl. 898, holding scire facias will not issue to revive judgment void for 
 want of jurisdiction appearing on record; Puckett v. Benjamin, 21 Or. 380, 28 
 Pac. 67, raising, without considering, question whether judgment binds non- 
 appearing defendant concealed within state, not served with summons. 
 
 Cited in notes (30 L.R.A. (X.S.) 159) on right of parties to adoption proceeding, 
 or their privies, to attack decree; (13 Am. St. Rep. 220) on validity of judgments- 
 rendered without jurisdiction; (15 Am. St. Rep. 143) on conclusiveness of judg- 
 ments upon collateral attack; (11 Eng. Rul. Cas. 16) on collateral attack on 
 judgment, if lack of jurisdiction appears affirmatively on record. 
 Construction of statutes in derogation of common lavr. 
 
 Cited in Casey v. St. Louis Transit Co. 116 Mo. App. 257, 91 S. W. 4] 9, hold- 
 ing statutes in derogation o, common-law are to be strictly construed; Long v. 
 Dufur, 58 Or. 170, 113 Pac. 59; Purinton v. Jamrock, 195 Mass. 197, 18 L.R.A. 
 
-553 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 631 
 
 (X.S.) 929, 80 X. E. 802, holding that statutes providing for adoption of chil- 
 dren are in derogation of common law and must be strictly construed. 
 
 3 L. R. A. 626, DIOCESE OF EAST CAROLINA v. DIOCESE OF NORTH CARO 
 
 LI.N'A, 102 X. C. 442, 9 5. E. 310. 
 Division of proprety upon separation of religions societies. 
 
 Cited in Eutaw Street M. E. Church v. Asbury Sunday-School Soc. 109 Md. 
 677, 72 Atl. 199, on the division of property upon the separation of religious 
 societies. 
 
 3 L. R. A. 631, BOWMAN v. PHILLIPS, 41 Kan. 364, 13 Am. St. Rep. 292, 21 
 
 Pac. 230. 
 Contracts in violation of law. 
 
 Cited in Yount v. Denning, 52 Kan. 636, 35 Pac. 207, holding unlicensed real 
 estate agent cannot recover commissions; Naglebaugh v. Harder & H. Coal Min. 
 Co. 21 Ind. App. 555, 51 N. E. 427, holding action not maintainable by assignee 
 on trade checks issued to employees in violation of law; Winchester Electric 
 Light Co. v. Veal, 145 Ind. 511, 41 N. E. 334, holding officer cannot maintain 
 action to recover public funds illegally loaned; Haddock v. Salt Lake City, 
 23 Utah, 528, 65 Pac. 491, holding recovery cannot be had for constable's services 
 rendered under illegal contract; Brock v. Jones County, 145 Iowa, 406, 124 X. W. 
 209, holding that member of county medical society which had contract with 
 county to serve poor is estopped by receipt of his share of compensation to society 
 to claim that contract violated provisions of law; McXeill v. Durham & C. R. Co. 
 135 N. C. 722, 67 L.R.A. 245, 47 S. E. 765 (dissenting opinion), on the enforce- 
 ment of illegal contracts. 
 
 Cited in notes (12 L.R.A. 122) on courts will not take jurisdiction in cases of 
 illegal contracts; (16 Am. St. Rep. 699) on illegal contracts. 
 
 Distinguished in Concordia v. Hagaman, 1 Kan. App. 40, 41 Pac. 133, holding 
 reasonable worth of services rendered under contract by councilman with city 
 recoverable. 
 Contracts agrainst public policy. 
 
 Cited in Moreland v. Devenney, 72 Kan. 474, 83 Pac. 1097, holding agreement 
 whereby attorneys are to carry on litigation at their own expense for a share 
 of amount recovered is void; Kansas City E. R. Co. v. Service, 77 Kan. 320, 14 
 L.R.A.(X.S.) 1107, 94 Pac. 262, holding a contract between attorney and client 
 whereby the latter was not to settle or compromise the cause of action without 
 the former's consent was contrary to public policy and void; Binswanger v. 
 Stanford, 28 Okla. 430, 114 Pac. 621, holding that firm selling intoxicating 
 liquors, knowing that buyers? would sell same contrary to law, cannot recover 
 therefor, as contract was against public policy. 
 
 Cited in footnotes to Boyle v. Adams, 17 L. R. A. 96, which holds agreement 
 to withdraw bid for state property void; Spahling v. Ewing, 15 L. R. A. 727, 
 \vlwch holds void a contract to give percentage of claim against government for 
 services rendered under illegal or champertous contract; (38 L.R.A. (N.S. ) 842) 
 contract by justice to secure arrest of person over whom he has no jurisdiction, 
 with compensation contingent on recovery of property, void; Gloucester Isinglass 
 & Glue Co. v. Russia Cement Co. 12 L. R. A. 563, which holds agreement to pre- 
 sent competition between corporations in manufacture of glue under patent 
 valid; Brooks v. Cooper. 21 L. R. A. 617, which holds void contract between news- 
 papers for alternate selection and division of profits of public printing; Leonard 
 v. Poole, 4 L. R. A. 7'28. which holds one engaging in plot to raise price of lard 
 cannot be aided by court as against coplotter. 
 
3 L.R.A. 631] L. R. A. CASES AS AUTHORITIES. 554 
 
 Cited in notes (6 L. R. A. 615) on contracts against public policy; (8 L. R. 
 A. 501) on no remedy on contracts against public policy; (12 L. R. A. 121) on 
 certain contracts not binding; (11 L. R. A. 504) on contracts in general restraint 
 of trade; (4 L.R.A. 157) on validity of contracts in partial restraint of trade; 
 (38 L.R.A. (N.S.) 1202) on right of attorney to recover on quantum nieruit for 
 services rendered under illegal or champertous contract; (38 L.R.A. (N.S.) 842) 
 on validity of contract by attorney to secure suspension of criminal law as to 
 offenses thereafter committed; (12 Am. St. Rep. 512) on law of champerty; 
 (119 Am. St. Rep. 1035) as to when attorneys contract of employment is void a 
 against public policy' because procured by solicitation; (33 L. ed. U. S. 73) on 
 validity of contracts in restraint of trade; (6 Eng. Rul. Gas. 391) on invalidity 
 of champertous agreement or one for compounding a felony. 
 
 3 L. R. A. 634, DILLINGHAM v. ANTHONY, 73 Tex. 47, 15 Am. St. Rep. 753, 
 
 11 S. W. 139. 
 Actions :iu:iin*i receivers in courts other than one appointing'. 
 
 Cited in Gay v. Brierfield Coal & I. Co. 94 Ala. 317, 16 L. R. A. 570, 33 Am. 
 St. Rep. 122, 11 So. 353, holding state court may entertain suit against Federal 
 receiver, but cannot interfere with property; Dillingham v. Hawk, 23 L. R. A. 
 519, 9 C. C. A. 103, 23 U. S. App. 213, 60 Fed. 496, and Malott v. Shimer, 153 
 Ind. 41, 74 Am. St. Rep. 278, 54 N. E. 101, holding Federal receiver may be sued 
 in negligence action in state court without permission, but payment enforceable 
 only by Federal court; Garrison v. Texas & P. R. Co. 10 Tex. Civ. App. 137, 30 
 S. W. 725, holding judgment in state court suit against Federal receiver con- 
 clusive as to amount; Gardner v. Caldwell, 16 Mont. 233, 40 Pac. 590, holding 
 judgment in court of co-ordinate jurisdiction in another district not collectible 
 out of property in hands of receiver; Rogers v. Chippewa Circuit Judge, 135 Mich 
 83, 97 N. W. 154, 3 A. & E. Ann. Cas. 114, holding that state court has no juris- 
 diction to enjoin the receiver of a telegraph company appointed by a Federal 
 court to prevent application of rates fixed by the court appointing; Davis Coal 
 & Coke v. Hess, 30 Pa. Super. Ct. 196, on the necessity of court appointing 
 receiver to recognize a judgment against him in another court; Paine v. Carpen- 
 ter, 51 Tex. Civ. App. 193, 111 S. W. 430, holding that receiver, without leave of 
 appointing court, may be joined in foreclosure suit in county other than that in 
 which receivership suit is pending; Kittrell v. First Nat. Bank, 56 Tex. Civ. App. 
 397, 120 S. W. 1104, holding that jurisdiction of court appointing receiver is 
 exclusive and cannot be interfered with by another court. 
 
 Cited in notes ( 11 L. R. A. 481 ) on actions and suits against receiver; (6 L. 
 R.A. 792) on receiver, appointment of; (71 Am. St. Rep. 356) on relation of re- 
 ceivers to pre-existing liens and remedies for their enforcements; (74 Am. St. Rep. 
 293, 296, 298) on action without leave of court against receiver or person for 
 whom he is appointed; (94 Am. St. Rep. 55, 57) on effect of judgments against 
 receivers in other than appointing court. 
 Duty of carrier to protect passeng-ers from violence or insult. 
 
 Cited in Missouri K. & T. R. Co. v. Russell, 8 Tex. Civ. App. 581, 28 S. W. 
 1042, holding railroad liable to one pushed from car steps by quarreling pas- 
 sengers; International & G. N. R. Co. v. Miller, 9 Tex. Civ. App. 106, 28 S. W. 
 233, holding railroad liable for excessive violence of passenger assisting con- 
 ductor to eject another. 
 
 Cited in note (35 L. ed. U. S. 922) on negligence of railroad companies toward 
 passengers. 
 
 Distinguished in Friar v. Orange & N. W. R. Co. 45 Tex. Civ. App. 566, 101 S. 
 
555 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 634 
 
 W. 274, holding where an intoxicated man in a crowded car was requested to 
 deliver up the pistol, he was brandishing and he gave it to his wife, from whom 
 the brakeman took it, there was no assault upon her. 
 Liinbility of receiver operating- railroad. 
 
 Cited in Huguelet v. Warfield, 84 S. C. 90, 65 S. E. 985, holding receivers op- 
 erating railroad are common carriers and liable as such for loss of freight. 
 Carrier's liability for torts of employees. 
 
 Cited in Gulf, C. fe 8. F. R. Co. v. Conder, 23 Tex. Civ. App. 489, 58 S. W. 
 58, holding railroad company liable for wrongful arrest of passenger caused by 
 conductor; St. Louis S. W. R. Co. v. Berger, 64 Ark. 620, 39 L. R. A. 787, 44 
 Pac. 809, holding carrier liable for use of more than reasonable force by con- 
 ductor when assaulted by passenger; St. Louis S. W. R. Co. v. Griffith, 12 Tex. 
 Civ. App. 636, 35 S. W. 741, holding railroad liable for assault by station agent 
 on one waiting for train; Indianapolis Union R. Co. v. Cooper, 6 Ind. App. 205, 
 33 X. E. 219, holding railroad liable for assault by gateman on passenger on 
 way to train; Galveston, H. & S. A. R. Co. v. La Prelle, 27 Tex. Civ. App. 497, 
 65 S. W. 488, holding previous assault by passenger not justify assault by con- 
 ductor; St. Louis S. W. R. Co. v. Johnson, 29 Tex. Civ. App. 185, 68 S. W. 58, 
 suM;iining carrier's liability for conductor's assault and use of profane language 
 toward noisy passenger; Denison & S. R. Co. v. Randell, 29 Tex. Civ. App. 463, 
 69 S. W. 1013, holding carrier liable for abusive treatment of passenger, from 
 whom conductor took one fare but demanded another; Johnson v. Detroit, Y. 
 & A. A. R. Co. 130 Mich. 455, 90 N. W. 274, holding carrier liable for con- 
 ductor's wilful assault upon passenger; Taillon v. Mears, 29 Mont. 170, 74 Pac. 
 421. 1 A. & E. Ann. Cas. 613, holding carrier is liable to passenger for injuries to 
 latter caused by negligent acts of its servants; Houston & T. R. Co. v. Batchler, 
 37 Tex. Civ. App. 122, 83 S. W. 902, holding carrier liable for assault made upon 
 passenger by servant within a reasonable time which the former has to leave 
 the car, upon arrival at destination; Gulf, C. & S. F. R. Co. v. Luther, 40 Tex. 
 Civ. App. 522, 90 S. W. 44, holding a carrier liable to a passenger waiting at a 
 depot for a train, resulting from the improper acts of servant in charge of the 
 depot, done in the course of his employment. 
 
 Cited in footnotes to North Chicago City R. Co. v. Gastka, 4 L. R. A. 481, 
 which holds carrier liable for conductor's lack of care in ejecting passenger for 
 nonpayment of fare; Farber v. Missouri P. R. Co. 20 L. R. A. 350, which holds 
 driving of trespasser from freight train by brakeman not to be within scope of 
 employment; Pullman Palace Car Co. v. Smith, 13 L. R. A. 215, which holds 
 sleeping-car company liable for servants causing passengers to get off at wrong 
 place. 
 
 Cited in notes (12 L. R. A. 339) on carrier's liability for torts of agents; 
 (3 L.R.A. 734) on expulsion of passenger from train; (4 L.R.A. (N.S.) 503) on 
 liability of carrier for malicious act of servant beyond scope of employment when 
 master owes special duty to party injured; (54 Am. St. Rep. 86) on liability of 
 carrier for wilful, malicious or criminal acts of servants; (88 Am. St. Rep. 792) 
 on liability of Carrier for unauthorized acts of agent; (40 L.R.A. (N.S. ) 1042, 
 1044, 1052, 1055, 1084) on liability of carrier for wilful torts of servants to 
 passengers. 
 
 Distinguished in Bess v. Chesapeake & O. R. Co. 35 W. Va. 496, 29 Am. St. 
 Rep. 820, 14 S. E. 234, holding railroad not liable for assault on trespasser not in 
 course of employment; Holler v. Ross, 68 N. J. L. 328, 59 L. R. A. 945, 96 Am. 
 St. Rep. 546, 53 Atl. 472, denying employer's liability for servant's shooting 
 trespasser upon realty on which master's property stored. 
 
3 L.E.A. 634] L. R. A. CASES AS AUTHORITIES. 556 
 
 Corporate liability for exemplary damages. 
 
 Cited in Texas & P. Coal Co. v. Lawson, 10 Tex. Civ. App. 496, 31 S. YV. 843, 
 holding corporation whose officers conspire to ruin plaintiff's business liable for 
 exemplary damages; Gulf, C. & S. F. R. Co. v. Reed, 80 Tex. 365, 26 Am. St. 
 Rep. 749, 15 S. W. 1105, holding railroad company not authorizing or ratifying 
 act of yardmaster throwing carcasses in stream not liable for exemplary dam- 
 ages. 
 
 Cited in notes (4 L.R.A.(N.S.) 507; 37 L. ed. U. S. 98) on liability of railroad 
 or other corporation for punitive or exemplary damages. 
 
 3 L. R. A. 639, MISSOURI P. R. CO. v. PLATZER, 73 Tex. 117, 15 Am. St. Rep. 
 
 771, 11 S. W. 160. 
 Question for jury. 
 
 Cited in Galveston, H. & S. A. R. Co. v. Lewis, 5 Tex. Civ. App. 642, 25 S. W. 
 293, holding negligence of railway company should not have been submitted to 
 jury unless it was proximate cause of injury; Texas & P. R. Co. v. Moore. 8 Tex. 
 Civ. App. 296, 27 S. W. 962, holding knowledge by servant of rule of railroad 
 company should have been assumed in instruction to jury; Rost v. Missouri P. 
 R. Co. 76 Tex. 173, 12 S. W. 1131, holding refusal to charge upon point not in 
 petition and proof, no error; Houston & T. C. R. Co. v. Anderson, 44 Tex. Civ. 
 App. 397, 98 S. W. 440, holding where oil train was wrecked and oil ran onto 
 adjacent property for several days without any attempt on the part of the rail- 
 road company to stop it, the question of negligence was for the jury. 
 Charge upon issues mot raised by evidence. 
 
 Cited in Whitaker v. Thayer, 38 Tex. Civ. App. 539, 86 S. W. 364, holding 
 charge erroneous where there was no evidence submitted which raised an issue 
 on the point. 
 Currier's liability for spread of fire. 
 
 Cited in Galveston, H. & S. A. R. Co. v. Chittim, 31 Tex. Civ. App. 43, 71 S. 
 W. 294, holding it not negligence for train crew not to leave train to extinguish 
 fires started by sparks; Pittsburgh, C. C. & St. L. R. Co. v. Brough, 168 Ind. 
 380, 12 L.R.A.(N.S.) 402, 81 N. E. 57, holding duty of railroad company to pre- 
 vent spread of fires upon right of way, is secondary to duty toward state to 
 operate its trains on time; Gulf, C. & S. F. R. Co. v. Meentzen Bros. 52 Tex. Civ. 
 App. 420, 113 S. W. 1000, holding that railroad employees, though they heard 
 cries for help and knew of existence of fire, were not bound to assist in arresting.' 
 fire, unless engine started fire; Pfeiffer v. Aue, 53 Tex. Civ. App. 09. 115 S. W. 
 300, holding landowner not liable for spread of fire to adjoining premises, if he 
 uses reasonable care to prevent its spreading. 
 
 Cited in footnotes to Louisville. X. A. & C. R. Co. v. Hart, 4 L.R.A. 549. 
 which holds railroad company liable for tire set by sparks from locomotive 
 spreading from right of way: Norfolk & W. R. Co. v. Fritts, 68 L.R.A. SG4, which 
 sustains liability for fire of railroad company unnecessarily running heavy 
 freight train up grade at double its scheduled speed in dry season and during 
 heavy wind. 
 
 Cited in notes (11 L. R. A. 507) on right of railroad company to burn com- 
 hustibles on its right of way; (9 L. R. A. 750) on duty and obligations of rail- 
 road company to guard against setting out tires; (5 L. R. A. 591) on negligence 
 of railroad company in not keeping track clear of combustibles. 
 
 Liability of railroad for escape of injurious substance to neighboring 
 land. 
 
 Cited in Houston & T. C. R. Co. v. Crook. 50 Tex Civ. App. 30, 1:20 S. W. 594, 
 
557 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 647 
 
 holding railroad liable for escape of oil from tanks and engines to neighboring 
 land. 
 
 3 L. R. A. 642, BELL v. INDIAN LIVE STOCK CO. (Tex.) 11 S. W. 344. 
 Garnishment of tvag-es. 
 
 Cited in Dempsey v. McKennell, 2 Tex. Civ. App. 286, 23 S. W. 525, holding 
 wages due for services under a contract to nurse a person during an attack of 
 sickness were exempt from garnishment though the amount was fixed. 
 
 Cited in footnotes to Rustad v. Bishop, 50 L. R. A. 168, which denies right to 1 
 hold back successive exempt wages by successive garnishments and reach same 
 by new garnishment after exemption period expires; Siever v. Union P. R. Co. 
 (51 L. R. A. 319, which sustains right to injunction against prosecution of multi- 
 plicity of garnishment proceedings for exempt wages. 
 
 Cited in note (102 Am. St. Rep. 92, 95, 96) on exemption of wages, salaries, 
 and earnings. 
 
 Distinguished in Sydnor v. Galveston, 4 Tex. App. Civ. Cas. (Willson) 95, 15 
 S. W. 202, holding that compensation from city to physician, under employment 
 to attend small-pox patients for certain number of days at certain sum per day, 
 is exempt from garnishment. 
 Nonresident's right to exemptions. 
 
 Cited in Bond v. Turner, 33 Or. 555, 44 L. R. A. 431, 54 Pac. 158, sustaining 
 nonresident's right to claim exemption of furniture; Himmel v. Eichengreen, 107 
 Md. 615, 69 Atl. 511, holding nonresident entitled to exemption of money or oth- 
 er benefit to be paid by fraternal insurance company, from attachment or 
 garnishes. 
 
 "Current." 
 
 Distinguished in Berlin Iron Bridge Co. v. San Antonio, 62 Fed. 890, holding 
 a debt created by city in erecting bridge was not a current expense to be paid 
 out of current revenues, though it was to be paid immediately. 
 Definition of wages. 
 
 Cited in First Nat. Bank v. Barnum, 160 Fed. 247, holding that music teacher 
 is not wage-earner under bankruptcy act. 
 
 3 L. R. A. 644, ANDERSON v. STATE, 27 Tex. App. 177, 11 Am. St. Rep. 189, 
 
 11 S. W. 33. 
 Negligent homicide. 
 
 Approved in People v. Davis, 1 111. C. C. 262, holding person not guilty of 
 manslaughter merely because at time of killing he was engaged in an unlawful 
 act or omission unless it was the natural consequence that it was dangerous 
 to life. 
 
 Cited in Pittsburgh, C. C. & St. L. R. Co. v. Ferrell, 39 Ind. App. 536, 78 N. E. 
 988 (dissenting opinion), on the negligent act of engineer in colliding with pas- 
 senger coach, as manslaughter. 
 
 Cited in notes (61 L.R.A. 297) on negligent homicide; (90 Am. St. Rep. 572) 
 on unintentional homicide in commission of unlawful act; (124 Am. St. Rep. 
 328, 331) on homicide by inattention or neglect of duty. 
 
 3 L. R. A. 647, FARRELL v. RICHMOND & D. R. CO. 102 N. C. 390, 11 Am. St. 
 
 Rep. 760, 9 S. E. 302. 
 When goods may he stopped in transit. 
 
 Cited in Rogers v. Schneider, 13 Ind. App. 30, 41 N. E. 71, holding jury shouhT 
 determine whether goods were in transit; Williams v. Hodges, 113 N. C. 38, 18 
 
3 L.R.A. 647] L. R. A. CASES AS AUTHORITIES. 558 
 
 S. E. 83, holding goods not in transit when there was an express agreement with 
 carrier that they should be held in storage for purchaser; Lewis v. Sharvey, 
 58 Minn. 471, 59 N. W. 1096, holding goods were ?till in transit when stopped; 
 Crass v. Memphis & C. R. Co. 96 Ala. 453, 11 So. 480, holding bill of inter- 
 pleader in case of goods stopped in transit objectionable, and permitting amend- 
 ment. 
 
 Cited in footnotes to Johnson v. Eveleth, 48 L. R. A. 50, which holds logs sub- 
 ject to stoppage in transitu while being driven down river by log-driving com- 
 pany; Jeffris v. Fitchburg R. Co. 33 L. R. A. 351, which holds right to stoppage 
 in transitu not defeated by delivery of part of consignment; Brewer Lumber 
 Co. v. Boston & A. R. Co. 54 L. R. A. 435, which holds right of stoppage in tran- 
 situ not lost by carriers storage for failure to unload in time, while freight 
 charges unpaid. 
 
 Cited in notes (4 L. R. A. 732; 11 L. R. A. 347, 349) on right of stoppage in 
 transitu; (15 Am. St. Rep. 430; 23 Eng. Rul. Cas. 410) on right of stoppage in 
 transitu; (23 Eng. Rul. Cas. 433) on termination of right of stoppage in transitu. 
 Charge to Jury. 
 
 Cited in Willis v. Atlantic & D. R. Co. 122 N. C. 909, 29 S. E. 941,; Norton 
 v. North Carolina R. Co. 122 N. C. 934, 29 S. E. 886; Bottoms v. Seaboard & 
 R. R. Co. 109 N. C. 72, 13 S. E. 738; Witsell v. West Asheville & S. S. R. Co. 
 120 N. C. 558, 27 S. E. 125, holding refusal to charge that plaintiff cannot re- 
 cover, no error; Alexander v. Richmond & D. R. Co. 112 N. C. 732, 16 S. E. 896, 
 holding charge that recovery cannot be had not objectionable if it cannot mislead ; 
 Postal Teleg.-Cable Co. v. Grantham, 109 C. C. A. 370, 187 Fed. 62, holding that 
 instructions concluding with words "plaintiff cannot recover" are properly re- 
 fused; Jones v. Balsley, 154 N. C. 65, 69 S. E. 827, holding that prayer for 
 instruction that if jury believe evidence, plaintiffs are not entitled to recover may 
 be disregarded, when case is tried upon specific issues. 
 
 3 L. R. A. 653, SESLER v. MONTGOMERY, 78 Cal. 486, 12 Am. St. Rep. 76, 
 
 19 Pac. 686, 21 Pac. 185. 
 Libel and slander. 
 
 Cited in footnotes to Nissen v. Cramer, 6 L. R. A. 780, which holds relevant 
 words spoken by party to action during trial privileged; Wilcox v. Moon, 15 L. 
 R. A. 760, which holds libel on woman not published to husband by his reading 
 sealed letter addressed to her. 
 
 Cited in note (9 L. R. A. 621) on what constitutes libel. 
 Comments on failure to produce witnesses. 
 
 Cited in Chicago, B. & Q. R. Co. v. Krayenbuhl, 70 Neb. 771, 98 N. W. 44, 
 holding it is customary to permit attorneys to comment on the failure to produce 
 Avitnesses who have been shown to know the facts. 
 Reference to common-law to supplement statute. 
 
 Cited in People v. Vasquez, 9 Cal. App. 548, 99 Pac. 982, holding where code 
 iailed to provide as to who should summon jurors when sheriff was disqualified, 
 reference must be had to the common-law. 
 
 3 L. R. A. 654, McGHEE v. EDWARDS, 87 Tenn. 506, 11 S. W. 316. 
 Privity of liens. 
 
 Cited in Wright v. Sherman, 3 S. D. 296, 17 L. R. A. 794, 52 X. W. 1003. and 
 Hanch v. Ripley, 127 Ind. 155, 11 L. R. A. 63, 26 N. E. 70, holding adjuster's 
 lien inferior to prior recorded chattel mortgage; Sullivan v. Clifton, 55 N. J. 
 L. 325, 20 L. R. A. 720, 39 Am. St. Rep. 652, 26 Atl. 964, holding liveryman's 
 
559 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 659 
 
 lien subordinate to prior mortgage; Stone v. Kelley, 59 Mo. App. 220, and Lazar- 
 us v. Moran, 64 Mo. App. 241, holding livery-stable keeper's lien subordinate to 
 prior mortgage; Howard v. Gemming, 10 Wash. 3, 38 Pac. 748, holding costs of 
 foreclosure of second mortgage can only be paid out of proceeds of property after 
 first mortgage satisfied. 
 
 Cited in footnote to Sullivan v. Clifton, 20 L. R. A. 719, which holds livery- 
 stable keepers lien subordinate to prior recorded mortgage. 
 
 Cited in notes (12 L.R.A. (N.S.) 311) on priority as between chattel mortgage 
 and lien for food or care furnished animals; (22 Am. St. Rep. 624) on right 
 to mechanic's lien. 
 
 Distinguished in Heckman v. Tammen, 84 111. App. 551, holdirqj that laborer's 
 liens have priority over prior chattel mortgage. 
 
 3 L. R. A. 656, SHELDON AXLE CO. v. STANDARD AXLE WORKS, 37 Fed. 
 
 789. 
 
 in patented article. 
 
 Cited in Jackson v. Vaughan, 73 Fed. 839, holding patented article purchased 
 in one territory may be sold in another; California Electrical Works v. Finck, 
 47 Fed. 585, holding purchaser of patented article cannot sell it in territory be- 
 longing to assignee of patentee. 
 
 Cited in footnotes to Heaton-Peninsular Button-Fastener Co. v. Eureka Spe- 
 cialty Co. 35 L. R. A. 728, which sustains patentee's right to require purchaser 
 of machine to purchase necessary unpatented article from him exclusively; Good- 
 year Shoe Mach. Co. v. Jackson, 55 L. R. A. 692, which holds purchaser of 
 patented article entitled to have it repaired or restored after decay or injury, 
 but not to have it entirely reconstructed. 
 
 Cited in note (55 L. R. A. 636) on right of purchaser of personal property to 
 sell or use it free from restrictions affecting it in vendor's hands. 
 
 3 L. R. A. 658, PARSONS v. LINDSAY, 41 Kan. 336, 13 Am. St. Rep. 290, 21 Pac. 
 
 227. 
 Sunday law. 
 
 Cited in Fox v. Nachtsheim, 3 Wash. 688, 29 Pac. 140, holding judgment ren- 
 dered on Sunday will be reviewed on appeal to determine its validity; Standard 
 Implement Co. v. Parlin & O. Co. 51 Kan. 576, 33 Pac. 363, holding delivery of 
 mortgage on Sunday to register of deeds, with request to file, not filing; Ex 
 partc Tice, 32 Or. 188, 49 Pac. 1038, holding jury cannot be discharged on Sunday 
 because of failure to agree. 
 
 Cited in footnotes to Sullivan v. Maine C. R. Co. 8 L. R. A. 427 which holds 
 riding for exercise on Sunday not violation of statute; Havens v. Stiles, 56 L. 
 R. A. 736, which authorizes filing complaint and issuing summons on Sunday; 
 Porter v. Pierce, 7 L. R. A. 847, which excludes Sunday in determining time to 
 redeem. 
 
 Cited in notes (11 L. R. A. 63) on legality of contract made on Sunday; (7 L. 
 R. A. 327) on receiving verdict on Sunday. 
 Common law. 
 
 Cited in notes (22 L. R. A. 502) on adoption of common law in the United 
 States. 
 
 3 L. R. A. 659, HARRISON COUNTY v. SEAL, 66 Miss. 129, 14 Am. St. Rep. 
 
 545, 5 So. 622. 
 Dedication of streets. 
 
 Cited in Heitz v. St. Louis, 110 Mo. 626, 19 S. W. 735, holding revocation of 
 
3 L.R.A. G59] L. R. A. CASES AS AUTHORITIES. 560- 
 
 dedication of streets not accomplished by deeding the streets; Riley v. Buchanan,. 
 25 Ky. L. Rep. 867, 63 L. R. A. 645, 76 S. W. 527, holding intention to dedicate 
 street presumed where use suffered for long time; Riley v. Buchanan, 116 Ky.. 
 633, 63 L.R.A. 642, 76 S. W. 527, 3 A. & E. Ann. Cas. 788, holding dedication, 
 of highway may be implied from long continued user by the public; Sowad/.ki 
 v. Salt Lake County, 36 Utah, 134, 104 Pac. Ill, holding that dedication of 
 streets by filing plat is complete without formal acceptance by public author- 
 ities; Pence v. Bryant, 54 W. Va. 267, 46 S. E. 275, holding dedication of land 
 as street cannot be retracted after long user, though there has been no formal 
 acceptance by the public officials. 
 
 Cited in notes (6 L. R. A. 261) on estate created by dedication; (9 L. R. A. 
 552) on dedication of land by platting and sale of lots; (14 L.R.A. (N.S.) 1068) 
 on effect of conveyance of lots laid down on plats, to prevent change in use or 
 form; (57 Am. St. Rep. 752, 754) on highways by user. 
 
 '6 L. R. A. 661, PENSACOLA & A. R. CO. v. STATE, 25 Fla. 310, 2 Inters. Com. 
 
 Rep. 522, 5 So. 833. 
 Enforcement of railroad tariff rates. 
 
 Cited in Storrs v. Pensacola & A. R. Co. 29 Fla. 630, 11 So. 226, holding bill 
 alleging that rates fixed by state commissioners are unjust and unreasonable 
 compared with those permitted by other railways not sufficient; State ex rel. 
 Lamar v. Jacksonville Terminal Co. 41 Fla. 401, 27 So. 225, holding resort to- 
 mandamus and other remedies not forbidden, by implication, by Constitution 
 requiring legislature to provide penalties and forfeitures for violation of orders 
 of railroad commissioners. 
 
 Cited in note (12 L. R. A. 436) on railroads as carriers in general. 
 Duty to carry at reasonable rates. 
 
 Cited in State ex rel. Ellis v. Atlantic Coast Line R. Co. 53 Fla. 671, 13 
 L.R.A. (N.S.) 327, 44 So. 213, 12 A. & E. Ann. Cas. 359, on the duty of a 
 common carrier to carry for a reasonable rate. 
 Reasonableness of rates determined by courts. 
 
 Cited in Spring Valley Water Works v. San Francisco, 82 Cal. 315, 6 L. E. A. 
 762, 16 Am. St. Rep. 116. 22 Pac. 910. holding reasonableness of water rates 
 fixed by municipality subject to review by court of equity; Storrs v. Pensacola 
 & A. R. Co. 29 Fla. 630, 11 So. 226, holding that courts cannot determine ques- 
 tion when there is room for a difference of intelligent opinion; State ex rel. 
 State Railroad Comrs. v. Seaboard Air Line R. Co. 48 Fla, 146, 37 So. 314. on 
 the evidence admissible to prove reasonableness of rates. 
 
 Cited in footnote to Fitzgerald v. Grand Trunk R. Co. 13 L. R. A. 70, which 
 holds agreement for rebate to one shipper illegal. 
 
 Cited in note (8 L.R.A. (N.S.) 530) on power of judiciary to fix rates of 
 public-service corporations. 
 State control of business of corporations and individuals. 
 
 Cited in State ex rel. Lamar v. Jacksonville Terminal Co. 41 Fla. 413, 27 So. 
 225, holding state entitled to regulate charges of company operating common 
 passenger terminal station for use of one or more railroads; Buffalo v. Collins 
 Baking Co. 24 Misc. 748, 53 N. Y. Supp. 968, holding city ordinance requiring 
 all bread baked by licensed bakers to be made into loaves of 1% pounds un- 
 reasonable and oppressive; State v. Atlantic Coast Line R. Co. 56 Fla. 627, 32 
 L.R.A. (N.S.) 656, 47 So. 969, holding that the states are supreme as to the 
 regulation of intra-state commerce, except where it violates the Federal con- 
 stitution as to taking private property without due process of law. 
 
561 L. B. A. CASES AS AUTHORITIES. [3 L.R.A. 679 
 
 Cited in footnote to Chicago, B. & Q. R. Co. v. Jones, 24 L. R. A. 141, which 
 holds only transportation within state within provisions of state statute regu- 
 lating carriers' rates. 
 
 Cited in notes (9 L. R. A. 755) on state power to regulate freights and fares; 
 (33 L.R.A. 183) on legislative power to fix tolls, rates, or prices; (62 Am. St. 
 1'ep. 296, 298) on regulation of rates; (44 L. ed. U. S. 418) on reasonableness 
 of state limitation of railroad rates. 
 
 3 L. R. A. 672, STATE ex rel. DICKINSON v. NEELY, 30 S. C. 587, 9 S. E. 664. 
 Municipal power of taxation. 
 
 Cited in State ex rel. Bartless v. Beaufort, 39 S. C. 11, 17 S. E. 355, holding 
 raxes voted by town must be for welfare of town and for corporate purpose. 
 
 Cited in note (14 L. R. A. 479) on public purposes for which money may be 
 appropriated or raised by taxation. 
 
 Validity of township bonds in aid of railroad. 
 
 Cited in Darlington v. Atlantic Trust Co. 16 C. C. A. 34, 25 U. S. App. 354, 
 68 Fed. 855, holding such bonds to be for "corporate purpose" within Constitu- 
 tion of South Carolina; Folsom v. Township Ninety Six, 159 U. S. 624, 40 L. 
 ed. 283, 16 Sup. Ct. Rep. 174, holding issue not contrary to Constitution of 
 South Carolina, requiring taxes assessed to be for "corporate purpose;" Con- 
 g.iree Constr. Co. v. Columbia Twp. 49 S. C. 542, 27 S. E. 570, holding uncon- 
 stitutional, act authorizing township to issue bonds in aid of construction of 
 railroad: Massachusetts & S. Constr. Co. v. Cherokee Twp. 42 Fed. 753, sustain- 
 ing order requiring delivery of bonds issued in aid of railroad. 
 Power of legislature to enact curative acts. 
 
 Cited in Hodge v. School Dist. 80 S. C. 520, 61 S. E. 1009, holding legislature 
 has authority to validate any act which it might have authorized. 
 Act providing: for payment of illegal bonds. 
 
 Cited in Bouknight v. Davis, 33 S. C. 413, 12 S. E. 96, holding act conclusive 
 as to rights of parties when fact that aid was voted is not denied; Gorham v. 
 Broad River Twp. 109 Fed. 774; Massachusetts & S. Constr. Co. v. Cane Creek 
 Twp. 45 Fed. 336 ; Finance Co. v. Charleston, C. & C. R. Co. 52 Fed. 679, hold- 
 ing act providing for payment of illegal township- bonds not in conflict with 
 South Carolina Constitution; Holstein v. Edgetield County, 64 S. C. 382, 42 S. E. 
 180, holding that court adjudging void act authorizing town to subscribe for 
 bonds will enforce decision of United States circuit court upholding act; Graham 
 v. Folsom, 200 U. S. 252, 50 L. ed. 468, 26 Sup. Ct. Rep. 245 (affirming 131 
 Fed. 496), holding that the legislature could invest the power to levy taxes for 
 township, in the county officials, where the township had been destroyed by 
 legislative action, with bonds outstanding against it; Smith v. Walker, 74 S. 
 C. 527, 54 S. E. 779, holding legislature may provide for the payment of bonds 
 of a municipal corporation which has been defectively organized, by taxes upon 
 property represented by such territory. 
 Corporate character of township. 
 
 Cited in Granniss v. Cherokee Twp. 47 Fed. 428, holding township is corporate 
 body. 
 Effect of act repealing charter of corporation. 
 
 Cited in State v. Port Royal & A. R. Co. 45 S. C. 451, 23 S. E. 363, majority 
 holding that act does not operate to abate pending suit for forfeiture of charter. 
 
 3 L. R. A. (170. SPRAGUE v. WARREN, 26 Neb. 326, 41 N. W. 1113. 
 Wagering contract invalid. 
 
 Cited in Morrissey v. Broomal, 37 Neb. 785, 56 N. W. 383, and Watte v. 
 L.IUA. Au. Vol. I. 36. 
 
3 L.R.A. 679] L. R. A. CASES AS AUTHORITIES. 562 
 
 Wickersham, 27 Neb. 473, 43 N. W. 250. holding purchase of grain, where no 
 delivery intended, but performance to be by settlement of differences, is wagering 
 contract, and void; Wheeler v. Metropolitan Stock Exchange, 72 N. H. 319, 
 56 Atl. 754, holding contract for purchase and sale of stock, without actual 
 delivery, one party to pay difference between contract price and market price, 
 illegal; Beidler & R. Lumber Co. v. Coe Commission Co. 13 X. D. 647, 102 N. 
 W. 880, holding a contract for the delivery of grain in the future, made without 
 intention to so deliver but to settle the difference in market price in cash, was 
 a wagering contract, and void; Mendel v. Boyd, 3 Neb. (Unof.) 478, 91 N. W. 
 860, holding speculations on the rise and fall of the market were gambling 
 transactions and void. 
 
 Cited in footnotes to Appleton v. Maxwell, 55 L. R. A. 93, which denies right 
 of action for money loaned to be used in gambling; Cashman v. Root, 12 L. R. A. 
 511, which holds void purchase of stock on margin by broker for customer; 
 Booth v. People, 50 L. R. A. 762, which sustains statute making options for 
 sale of commodities which have been subject of gambling operations unlawful; 
 First Nat. Bank v. Carroll, 8 L. R. A. 275, which holds guaranty that cattle 
 will sell at specified price, in consideration of receiving all above such price, 
 gambling contract; Jemison v. Citizens' Sav. Bank, 9 L. R. A. 708, which holds 
 speculative dealing in cotton futures by savings bank, ultra vires; Drinkall v. 
 Movius State Bank, 57 L. P.. A. 341, which holds title to cashier's check, acquired 
 by payee's indorsement to gambler in payment for chips to be used in gambling, 
 defective; Olson v. Sawyer Goodman Co. 53 L. R. A. 648, which holds void an 
 agreement to debit and credit, on accounts due employees, their winnings at 
 card games w r ith each other; Ullman v. St. Louis Fair Asso. 56 L. R. A. 606, 
 which denies right to abandon partly executed, illegal bookmaking contract for 
 specified period, and recover back pro rata amount of money paid; Central Stock 
 & Grain Exchange v. Bendinger, 56 L. R. A. 875, which holds broker liable to 
 refund to principal money illegally taken from agent as margin on gambling 
 transaction; Scales v. State, 66 L.R.A. 730, which holds wagering contract in 
 future not shown by fact that purchaser intended to sell his contract before 
 time for performance arrived unless noncontemplation of actual performance 
 of obligation by other party is also shown. 
 
 Cited in note (5 L. R. A. 201) on wagers and wagering contracts. 
 Recovery under illegal contract. 
 
 Cited in Ives v. Boyce, 85 Neb. 325, 25 L.R.A. (N.S.) 150. 123 N. W. 318, 
 holding no recovery can be had at common-law under illegal contracts. 
 
 Cited in footnotes to Baxter v. Deneen, 64 L.R.A. 949, which holds that broker 
 with whom margins have been deposited in a stock gambling transaction will 
 not be enjoined from violating agreement to keep them on deposit in a specified 
 bank until the transaction is closed: Fuller v. Berger, 65 L.R.A. 381, which 
 holds that equity will not refuse relief against infringement of patent because 
 owner has devoted it wholly to an immoral use. 
 
 Cited in notes (11 L.R.A. (N.S.) 577) on right of broker to recover commis- 
 sions or advances in furthering wagering contract; (119 Am. St. Rep. 174, 175i 
 on defenses to obligations given for gambling debts. 
 Courts will u<> behind contract to determine character. 
 
 Cited in Rogers v. Marriott, 59 Neb. 775, 82 N. W. 21, holding courts not 
 bound by form of contract if evidence shows it is based on wagering transaction ; 
 Dows v. Glaspel, 4 N. Dak. 266, 60 N. \Y. 60, and Mohr v. Miesen, 47 Minn. 234, 
 49 N. W. 862, holding real understanding between parties may be gathered from 
 facts and attending circumstances. 
 
563 L. R. A. CASES AS AUTHORITIES. [3 L.lt.A. 683 
 
 Cited in note (22 L.R.A. (X.S.) 177) on inference as to character of trans- 
 action on margin. 
 Burden of proof on party enforcing: contract. 
 
 Cited in Bartlett v. Collins, 109 Wis. 484, 83 Am. St. Rep. 928, 85 N. W. 703, 
 holding that to support purchase of grain for future delivery, it must appear that 
 actual delivery and receipt of grain intended. 
 Effect of finding- of trial court on appeal. 
 
 Distinguished in Mulford v. Caesar, 53 Mo. App. 272, holding finding of trial 
 court against wagering character of contract is binding on appeal. 
 
 3 L. R. A. 683, PARSONS v. NEW YORK C. & H. R. R. CO. 113 N. Y. 355, 
 
 10 Am. St. Rep. 450, 21 N. E. 145. 
 When railroad liable for negligence. 
 
 Cited in Daniel v. Petersburg, R. Co. 117 N. C. 612, 23 S. E. 327, holding 
 railroad liable for killing of passenger by its employee, while getting his bag- 
 gage; Jewell v. New York C. & H. R. R. Co. 27 App. Div. 502, 50 N. Y. Supp. 
 848, holding railroad's negligence question for jury, where train was driven at 
 high speed past train at station from which passengers alighting; Golberg v. 
 Xew York C. & H. R. R. Co. 39 N. Y. S. R. 786, 15 N. Y. Supp. 579, holding 
 railroad liable for injuries to passenger alighting from train and crossing track 
 to reach river; Chicago, R. I. & P. R. Co. v. Sattler, 64 Neb. 640, 57 L. R. A. 
 S92, 97 Am. St. Rep. 666, 90 N. W. 649, holding that passenger alighting from 
 train without invitation of company, express or implied, or for some necessity- 
 tine to traveling, must exercise ordinary care; Birmingham R. Light & P. Co. 
 v. Jung, 161 Ala. 473, 49 So. 434, holding that if the passenger has the consent 
 of the conductor to temporarily leave the car at a place at which passengers 
 are not received, the carrier owes the former the duty to see that he is not 
 in a place of danger before moving the car; St. Louis, I. M. & S. R. Co. v. 
 Glossup. 88 Ark. 229, 114 S. W. 247; Gannon v. Chicago, R. I. & P. R. Co. 141 
 Iowa, 40, 23 L.R.A. (N.S.) 1062, 117 N. W. 966, holding person who had 
 alighted upon a station platform for the purpose of exercise and recreation 
 was still a passenger to whom railway owed duty of protection. 
 
 Cited in notes (11 L. R. A. 385) on duty of railroad employees in approaching 
 road crossings to give warning; (11 L. R. A. 435) on rate of speed of railroad 
 train; (10 L. R. A. 140) on duty owed by railroad company to intruders and 
 trespassers; (7 L. R. A. 316) on duty of railroad company to give warning on 
 approaching highway crossing; (7 L. R. A. Ill) on duty of railroads to furnish 
 safe stations and platforms for use of passengers; (9 L. R. A. 161) on high 
 rate of speed; (40 L.R.A. (N.S.) 1060, 1064) on liability of carrier for wilful 
 torts of servants to passengers. 
 
 Distinguished in Silberstein v. Houston, W. a. & P. Ferry R. Co. 117 N. Y. 
 296, 22 N. E. 951, holding evidence of icy condition between railway tracks not 
 admissible to impute negligence. 
 Contributory negligence for jury. 
 
 Cited in Chicago, St. L. & P. R. Co. v. Spilker, 134 Ind. 410, 33 N. E. 280, 
 holding contributory negligence not necessarily shown where traveler, before driv- 
 ing across tracks, stopped twice, looked and listened ; O'Harra v. New York C. 
 & H. R. R. Co. 92 Hun, 60, 36 N. Y. Supp. 567, holding contributory negligence 
 of militiaman called by railroad company to guard its property, and killed 
 while on duty at end of "dead" cars, for jury; Watson v. Oxanna Land Co. 92 
 Ala. 326, 8 So. 770, holding negligence of passenger not necessarily disclosed, 
 .although he might have seen hole had he looked; Turell v. Erie R. Co. 49 
 
3 L.R.A. 683] L. R. A. CASES AS AUTHORITIES. 564 
 
 App. Div, 97, 63 N. Y. Supp. 402, holding question for jury to determine, where 
 thirteen-year-old boy stopped and listened, and testified he did not hear or see- 
 train; Beeeher v. Long Island R. Co. 35 App. Div. 290, 55 X. Y. Supp. 23, holding 
 it for jury where deceased passenger crossed track that had not been used for 
 incoming train for long time; Conley v. Albany R. Co. 22 App. Div. 325. 47 
 N. Y. Supp. 738, holding it for jury where deceased crossed trolley track behind 
 another car; Harper v. Delaware, L. & W. R. Co. 22 App. Div. 276, 47 X. Y. Supp. 
 933, holding it for jury where motorman attempted to cross track, and was 
 invited by his conductor, ahead of car, to come on; Martin v. Third Ave. R. Co.- 
 27 App. Div. 63, 50 X. Y. Supp. 284, holding it for jury where man crossing 
 trak was struck by one car in going behind another; Smith v. Xe\v York C. & 
 H. R. R. Co. 4 App. Div. 496, 38 X. Y. Supp. 668, holding it for jury where 
 evidence conflicting as to the giving of signals; Haupt v. Xew York C. & H. R. 
 R, Co. 20 Misc. 294, 45 X. Y. Supp. 666, holding it for jury where traveler's 
 first view of tracks is only when he is upon them; Bond v. Xew York C. &: 
 H. R. R. Co. 69 Hun, 478, 23 X. Y. Supp. 450, holding it for jury where- 
 traveler drove onto crossing on trot after gates had been raised and invitation' 
 given by gate-keeper; Zwack v. Xew York, L. E. & W. R. Co. 8 App. Div. 488. 
 40 X. Y. Supp. 821, holding it for jury where boy looked both ways and did 
 not see approaching train ; Seeley v. Xew York C. & H. R. R. Co. 8 App. Div. 406, 
 40 X. Y. Supp. 866, holding it for jury where deceased looked both ways before 
 crossing; Wilber v. Xew York C. & H. R. R, Co. 8 App. Div. 142, 40 X. Y. Supp. 
 471, holding it for jury where evidence conflicting as to distance train could be 
 seen through falling snow ; Wilbur v. Delaware, L. & W. R. Co. 85 Hun, 157,. 
 32 X. Y. Supp. 479, holding it for jury where deceased struck by flyer, and 
 evidence conflicting as to giving of signals; McPeak v. Xew York C. & H. R. 
 R. Co. 85 Hun, 113, 32 X. Y. Supp. 647, holding it for jury where injured 
 person crossing track could hear nothing because of noise of stalled freight engine ; 
 Kelsey v. Staten Island Rapid Transit R. Co. 78 Hun, 209, 28 X. Y. Supp. 974. 
 holding it for jury where it was a question whether injured person exercised 
 ordinary care at highway crossing; Pitts v. Xew York, L. E. & W. R. Co. 79- 
 Hun, 549, 29 X. Y. Supp. 871, holding it for jury where evidence conflicting as 
 to distance at which headlight of locomotive might have been seen; Richardson 
 v. Xew York C. & H. R. R.^Co. 40 X. Y. S. R. 618, 15 X. Y. Supp. 868, holding 
 it for jury where woman drives across tracks upon invitation of flagman, as she 
 believes; Tucker v. Xew York C. & H. R. R. Co. 33 X. Y. S. R. 865, 11 X. Y. . 
 Supp. 692, holding question for jury in case of boy struck on crossing, and 
 evidence conflicting as to blowing of locomotive whistle and ringing of bell ; 
 Murphy v. Rome, W. & O. R. Co. 32 X. Y. S. R. 382, 10 X. Y. Supp. 354, holding 
 jury should determine as to, when passenger alighted from train as it war- 
 being started; Wiel v. ^Yright, 29 X. Y. S. R. 765, 8 X. Y. Supp. 776, holding 
 it for jury when evidence is conflicting as to whether person injured by horse, 
 saw it before he was struck; Popp v. Xew York C. & H. R. R. Co. 26 X. Y. 
 S. R. 639, 7 X. Y. Supp. 249, holding it for jury where plaintiff's wagon struck 
 while crossing track after listening for train; Moeller v. Brewster, 57 Hun, 555, 
 11 X. Y. Supp. 484, holding it for jury where deceased was testing radiators; 
 Wall v. Delaware, L. & W. R. Co. 54 Hun, 460, 7 X. Y. Supp. 709, holding il 
 for jury where evidence as to whether locomotive whistle blown contradictory; 
 Beckwith v. Xew York C. & H. R. R, Co. 54 Hun, 449, 7 X. Y. Supp. 719, 
 holding it for jury when approaching train was neither seen nor heard; Wiwi- 
 rowski v. Lake Shore & M. S. R. Co. 58 Hun, 42, 11 X. Y. Supp. 361, holding it 
 question for jury when evidence shows that no danger was disclosed by careful 
 observation; Dobert v. Troy City R. Co. 91 Hun, 33, 36 X. Y. Supp. 105, holding 
 
565 L. E. A. CASES AS AUTHORITIES. [3 L.R.A. 683 
 
 jury should determine, where passenger alighted and passed behind his car and 
 onto adjoining track; Dwinelle v. New York C. & H. R. R. Co. 120 N. Y. 122, 
 8 L. R. A. 226, 17 Am. St. Rep. 611, 24 N. E. 319, holding jury must determine 
 whether sleeping-car porter was acting within scope of his duty at the time he 
 assaulted passenger; Gradert v. Chicago & X. W. R. Co. 109 Iowa, 551, 80 N. W. 
 -559, holding it for jury where passenger was killed by collision after mounting 
 platform of way car of freight train; Atchison, T. & S. F. R. Co. v. Shean, 18 
 Colo. 372, 20 L. R. A. 730, 33 Pac. 108, holding it for jury where passenger did 
 not look and listen before crossing track; Haden v. Clarke, 32 N. Y. S. R. 480, 
 10 X. Y. Supp. 291, holding question for jury when traveler injured at toboggan 
 slide; Grand Trunk R. Co. v. Ives, 144 U. S. 432, 36 L. ed. 494, 12 Sup. Ct. Rep. 
 679, holding contributory negligence of deceased for jury and fully covered by 
 charge; Zucker v. Whitridge, 143 App. Div. 202, 128 N. Y. Supp. 233, holding 
 ^contributory negligence of pedestrian crossing street railroad tracks when car 
 temporarily obstrvicted his view, question of fact; Popp v. Xew York C. H 
 R. R. Co. 4 Silv. Sup. Ct. 244, 7 N. Y. Supp. 249, holding contributory negligence 
 was for jury where it is to be inferred from the evidence; Towns v. Rome, W. 
 & 0. R. Co. 4 Silv. Sup. Ct. 335, 8 N. Y. Supp. 137, holding contributory negli- 
 gence of milkman crossing tracks where view was obstructed, question of fact. 
 
 Cited in footnotes to Lorenz v. Burlington, C. R. & X. R. Co. 56 L.R.A. 752, 
 which holds negligence of one pursuing cow, in not looking and listening before 
 crossing railroad track, for jury; Colorado & Southern R. Co. v. Thomas, 70 
 L.R.A. 681, which holds failure to look and listen before crossing track not 
 excused by existence of building adjoining highway which would obstruct view 
 of tracks and by noise created therein which would prevent hearing approaching 
 train. 
 
 Cited in note (27 L.R.A. (X.S.) 129) on duty of passenger to stop, look, and 
 listen before crossing track adjacent to his train. 
 Contributory neg'ligrence as matter of law. 
 
 Cited in Grostick v. Detroit, L. N. R. Co. 90 Mich. 617, 51 N. W. 667 (dis- 
 senting opinion), majority holding it contributory negligence, as matter of law, 
 if man crossing track neither looks nor listens; McGoldrick v. Xew York C. & 
 H. R. R. Co. 49 N. Y. S. R. 568, 20 N. Y. Supp. 914, holding it not negligence, 
 ^s matter of law, for one to carry knife wrapped up in way in which he has 
 carried it safely for years; Cranch v. Brooklyn Heights R. Co. 186 X. Y. 316, 
 78 N. E. 1078, reversing 107 App. Div. 342, 93 X. Y*. Supp. 169, holding woman 
 who stepped from a place of safety ahead of a fast running train, which she 
 knew was approaching, but expected to stop, was guilty of contributory negli- 
 gence as a matter of law, when she did not look to see how close the train was -. 
 Anderson v. Grand Trunk R. Co. 27 Ont. Rep. 447, holding person not guilty 
 of contributory negligence as matter of law, because of being upon track, where 
 impliedly invited by company recognizing place as station; Donnelly v. Katz. 
 133 App. Div. 908, 117 X. Y. Supp. 644 (dissenting opinion), on what con- 
 stitutes contributory negligence. 
 
 Cited in footnotes to Woehrle v. Minnesota Transfer R. Co. 52 L. R. A. 349, 
 which holds traveler's failure to look and listen, when watchman absent, not 
 negligence per se; Feeney v. Long Island R. Co. 5 L. R. A. 544, which holds 
 traveler not negligent per se in failing to notice that farther gate coming down, 
 before reaching it. 
 
 Cited in notes (8 L. R. A. 783) as to when contributory negligence not a 
 defense; ( 16 L. R. A. 267) on presumption as to exercise of due care by person 
 .found to have been killed by alleged negligence of another. 
 
3 L.R.A. 683] L. R. A. CASES AS AUTHORITIES. 56$ 
 
 Who is a passenger. 
 
 Cited in Alabama G. S. R. Co. v. Coggins, 32 C. C. A. 5, 60 U. S. App. 140, 8S-' 
 Fed. 459, holding passenger alighting at intermediate station for refreshment 
 or exercise is still a passenger; Chicago, R. I. & P. R. Co. v. Sattler, 64 Neb. 647, 
 57 L. R. A. 895, 97 Am. St. Rep. 666, 90 N. W. 649, holding passenger who left 
 his train on a siding to get water at a pump, and was struck returning, not ;i 
 passenger being transported over road within statute ; Dwindle v. New York 
 C. & H. R. R. Co. 120 N. Y. 126, 8 L. R. A. 226, 17 Am. St. Rep. 611, 24 X. E. 
 319, holding railroad company would be liable for injury to passenger by it* 
 negligence, while waiting on its grounds for extra train ; Arkansas C. R. Co. v. 
 Bennett, 82 Ark. 400, 102 S. W. 198, holding passenger on freight train does 
 not lose his character as such by leaving the train to talk with an acquaintance 
 while the cars were being switched; Laub v. Chicago, B. & Q. R. Co. 118 Mo. 
 App. 499, 94 S. W. 550, holding person who had alighted at an intermediate 
 station at the invitation of the carrier to obtain lunch, was still a passenger,, 
 though at the time was walking beside the train for purpose of exercise; Miller 
 v. Brooklyn Heights R. Co. 124 App. Div. 538, 108 N. Y. Supp. 960, holding; 
 passenger on street car did not lose character as such by walking from front 
 platform to rear to demand transfer, where his leaving car was made necessary 
 by crowded condition of car; Daniel v. Petersburg R. Co. 117 N. C. 612, 4 
 L.R.A.(N.S.) 504, 23 S. E. 327, on the loss of character as passenger by alight- 
 ing at intermediate station ; Missouri, K. & T. R. Co. v. Price, 48 Tex. Civ. 
 App. 213, 106 S. W. 700, holding person who alighted for the purpose of getting 
 a lunch, after telling the conductor, continued his relation as passenger; Layne 
 v. Chesapeake & O. R. Co. 6 W. Va. 626, 67 S. E. 1103, holding that passenger 
 does not cease to be such by alighting at intermediate station to engage in 
 altercation with railroad employee; Austin v. St. Louis & S. F. R. Co. 149 Mo. 
 App. 405, 130 S. W. 385, holding that passenger does not cease to be such by 
 alighting from caboose of wrecked train at invitation of conductor. 
 
 Cited in note (15 L. R. A. 399) on rights and liabilities of parties when pas- 
 senger temporarily leaves vehicle before completion of journey. 
 
 Distinguished in Zeccardi v. Yonkers R. Co. 190 N. Y. 391, 17 L.R.A.(N.S.) 
 772, 83 N. E. 31, holding person who had alighted from street-car to stop fight 
 between persons on the street was no longer a passenger, to whom street-railway 
 company owed any duty. 
 
 Limited in Chicago, R. I. & P. R. Co. v. Sattler, 64 Neb. 640, 57 L.R.A. 890 r 
 97 Am. St. Rep. 666, 90 N. W. 649, holding that the carrier owes no duty to. 
 passenger who leaves train at intermediate station, at a place not designed for 
 the discharge of passengers, of his own volition, on an errand not connected 
 with his journey. 
 Effect of <! in isxioii of improper evidence. 
 
 Cited in Myhill v. Bogardus, 166 N. Y. 615, 59 N. E. 900, holding that im- 
 proper evidence already before jury cannot be reviewed by exception. 
 
 3 L. R. A. 687, STATE v. HORACEK, 41 Kan. 87, 20 Pac. 204. 
 Whether dispensing liquors by social club to members is sale. 
 
 Cited in Com. v. Tierney, 1 Pa. Dist. R. 20, holding furnishing of liquors by- 
 club to members, at usual retail prices, is sale within liquor license act; Man- 
 ning v. Canon City, 45 Colo. 577, 23 L.R.A.(N.S.) 195, 101 Pac. 978, holding 
 sale by club through its board of control to its members was a sale within the 
 ordinance against sales of intoxicating liquors; Ada County v. Boise Commercial 
 Club, 20 Idaho, 437. 38 L.R.A. (N.S.) 110, 118 Pae. 1086, holding that distribu- 
 
567 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 690 
 
 tion of liquors by club to members without profit, to be consumed in clubrooms, 
 is sale. 
 
 Cited in footnotes to People v. Adelphi Club, 31 L. R. A. 510, which holds dis- 
 tribution of liquor by social club to members not illegal sale; State ex rel. Bell 
 v. St. Louis Club, 26 L. R. A. 573, which holds distribution of liquor among 
 members by social club not illegal; State ex rel. Stevenson v. Law & Order Club, 
 02 L. R. A. 885, denying right of incorporated club, without license, to dispense 
 liquors to members for checks delivered upon payment of assessments. 
 
 Cited in note (24 Am. St. Rep. 36, 43) on distribution of liquor by social clubs. 
 
 Distinguished in People v. Adelphi Club, 149 N. Y. 13, 31 L. R. A. 513, 52 
 Am. St. Rep. 700, 43 N. E. 410, holding supplying liquors by club to members, 
 without profit, not sale within statute prohibiting sale without license; People 
 v. Adelphi Club. 12 X. Y. Crim. Rep. 6, holding, under local statute, furnishing 
 of liquors by club to its members was not a sale and no license was required. 
 
 Disapproved in State ex rel. Bell v. St. Louis Club, 125 Mo. 329, 26 L. R. A. 
 580, 28 S. W. 604, holding that distribution of liquors owned by club, to its 
 members, is not sale within dramshop act. 
 Whether social club within statute r-ii u la t i iin sale. 
 
 Cited in Mohrman v. State, 105 Ga. 716, 43 L. R. A. 401, 70 Am. St. Rep. 74, 
 32 S. E. 143, holding furnishing of liquors by social club to members only, on 
 Sunday, within statute against keeping open tippling house on Sunday. 
 
 Cited in footnotes to State v. Boston Club, 20 L. R. A. 185, which holds in- 
 corporated institutions selling liquor to members owe license; Barden v. Mon- 
 tana Club, 11 L. R. A. 593, which holds social club not subject to license tax. 
 
 Cited in notes (6 L. R. A. 128) on evasion of liquor laws by social clubs; (12 
 L. R. A. 413) on late cases respecting application of intoxicating liquor laws to 
 social clubs; (12 L.R.A.(N.S.) 521) on applicability of liquor laws to social club. 
 
 Disapproved in effect in Barden v. Montana Club, 10 Mont. 335, 11 L. R. A. 
 594, 24 Am. St. Rep. 27, 25 Pac. 1042, holding social club serving liquors to 
 members and their guests, without profit, not retail liquor seller within Montana 
 license law. 
 
 3 L. R. A. 690, BUNTING v. SPEAKS, 41 Kan. 424, 21 Pac. 288. 
 Construction of estates in remainder, whether vested or contingent. 
 
 Cited in McLaughlin v. Penney, 65 Kan. 530, 70 Pac. 341, holding intent to 
 create contingent remainder by will not presumed, but must be clearly expressed; 
 Shafer v. Tereso, 133 Iowa, 34<3, 110 N. W. 846, holding that if there be a person 
 in being capable of taking the estate should it be immediately terminated then 
 it is a vested estate, if not, then contingent; \Yilliams v. Bricker, 83 Kan. 57, 
 30 L.R.A. (N.S.) 346, 109 Pac. 998, on construction of devise to widow for life 
 and remainder to children living at her death. 
 
 Cited in footnotes to Starnes v. Hill, 22 L. R. A. 598, which holds indefeasible 
 fee not vested in one to whom life estate given, with estate in fee to his "heirs;" 
 Green v. Grant, 18 L. R. A. 381, which holds that woman's issue is without 
 vested interest in land devised to her for life, with direction to convey to such 
 issue as she shall appoint; Bowen v. Hackney, 67 L.R.A. 440, which holds that 
 no estate vests in children until widow's death under will giving life estate to 
 widow and providing that at her death that given to her for life shall be equally 
 divided between all the children, the representatives of those having died to 
 stand in place of ancestors. 
 
 Cited in notes (9 L.R.A. 214) on vested and contingent remainders distin- 
 guished; (33 L.R.A. (N.S. ) 15, 25) on time for ascertaining who take under 
 gift over to testator's heirs, next of kin, etc.; (37 Am. St. Rep. 146) on vested 
 
3 L.R.A. 690] L. R. A. CASES AS AUTHORITIES. 568 
 
 and contingent remainders; (37 Am. St. Rep. 147) on vested and contingent 
 legacy. 
 
 Distinguished in Dixon v. Dixon, 85 Kan. 381, 116 Pac. 886, holding that 
 rule favoring vested rather than contingent remainders does not change language 
 and intention clearly expressed in trust deed. 
 "Heirs." 
 
 Distinguished in Neal v. Davis, 53 Or. 429, 99 Pac. 69, holding the word heirs 
 does not mean children, unless accompanied by some qualifying words. 
 
 3 L. R. A. 702, WOODWARD v. BROOKS, 128 111. 222, 15 Am. St. Rep. 104, 20 
 
 N. E. 685. 
 Validity of voluntary general assignment made in another state. 
 
 Cited in Consolidated Tank Line Co. v. Collier, 48 111. App. 535, 148 111. 263, 
 39 Am. St. Rep. 181, 35 N. E. 756, holding assignment with preferences valid 
 in Illinois, if valid where made, and not detrimental to local creditors ; Whithed 
 v. J. Walter Thompson Co. 86 111. App. 85, holding common-law 7 assignment by 
 corporation presumed valid, where made as against attachment by foreign cred- 
 itor; Townsend v. Coxe, 151 111. 69, 37 N. E. 689, holding assignment conditioned 
 for release of assignor invalid as contravening local law; Covell v. Fowler, 144 
 Fed. 538, holding method of enforcing liability of nonresident stockholder of 
 insolvent bank must conform to procedure of forum whose aid is invoked. 
 
 Cited in notes (23 L. R. A. 38) on transfer of property out of state by vol 
 untary assignment; (17 L. R. A. 85) on validity of assignment determined by 
 law of domicil. 
 Protection of local creditors against foreign receivers and assignees. 
 
 Followed in Bank of Nova Scotia v. Booth, 19 Manitoba L. Rep. 477, holding 
 that resident creditor of foreign corporation in hands of receiver can serve such 
 corporation, where its debtor to amount exceeding $200 resides in same province 
 as such creditor. 
 
 Cited in Smith v. Lamson Bros. 184 111. 72, 56 N. E. 387; Smith v. Lamson 
 Bros. 82 111. App. 468; Holbrook v. Ford, 153 111. 64, 27 L. R. A. 327, 46 Am. St. 
 Rep. 917, 39 N. E. 1091, holding attachment by local creditor will be upheld 
 as against foreign receiver or assignee; Hunt v. Gilbert, 54 111. App. 495, holding 
 receiver of foreign corporation cannot acquire title to property in Illinois as 
 against attachment by local creditor; Hughes v. Runner, 91 Wis. 120, 64 N. W. 
 887, holding debenture bond of foreign insurance company, held as security for 
 local policy holders, subject to claims of latter as against assignee of insurance 
 company; Re John L. Nelson & Bro. Co. 149 Fed. 593, holding assignee in 
 Illinois for benefit of creditors cannot withdraw funds of assignor located in 
 Xew York before payment of attaching New York creditors; Smith v. Berz, 125 
 111. App. 130, holding neither voluntary nor statutory assignee from foreign 
 jurisdiction, nor receiver appointed by foreign court can successfully hold prop- 
 erty of which he has not obtained possession in jurisdiction appointing him, 
 against attaching creditors of insolvent estate citizens of state of situs. 
 
 Cited in notes (6 L.R.A. 110) on law of comity in enforcement of rights: 
 (65 L.R.A. 355, 357) on transfer of property out of state by bankruptcy or 
 insolvency proceedings or assignment for creditors; (59 Am. St. Rep. 881) on 
 injunction against suits interfering with bankruptcy proceedings in another 
 jurisdiction. 
 
 Distinguished in May v. Gesellschaft, 211 111. 316, 71 N. E. 3001, holding 
 under statute, person interpleading in attachment under claim of assignment 
 from nonresident owner cannot urge that his claim should be preferred as that 
 
569 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 70S 
 
 of resident creditor because defendant was nonresident and plaintiff sought to- 
 recover for trustee of such nonresident's domicile. 
 
 Itiulit* of foreign creditors inferior to title of foreign assignee or re- 
 ceiver. 
 
 Cited in Walton v. Detroit Copper & Brass Rolling Mills, 37 111. App. 268, sus- 
 taining assignment as against attaching creditor from another state, having- 
 notice of assignment; Oilman v. Ketcham, 84 Wis. 68, 23 L. R. A. 57, 36 Am. St. 
 Rep. 899, 54 N. W. 395, upholding title of foreign receiver of dissolved corpora- 
 tion as against garnishment by foreign creditor. 
 Validity of contracts made in another state. 
 
 Cited in Schlee v. Guckenheimer, 179 111. 597, 54 N. E. 302, holding contract 
 Viilid at common law presumed to be valid where made; Smith v. Jones, 63 Ark. 
 240, 37 S. W. 1052, holding contract of sale made in another state transfers title 
 to property as against claims of local creditors; Judy v. Evans, 109 111. App, 
 156, holding unenforceable, contract of sale valid where made, but void here; 
 McCoy v. Griswold, 114 111. App. 560, holding validity and construction of con- 
 tract determined by law of place where made. 
 
 Cited in note (6 L. R. A. 108) on law of place governing construction and 
 validity of contracts. 
 
 3 L. R. A. 705, STATE v. RICHARDS, 32 Va. 348, 9 S. E. 245. 
 Peddler's license ; interstate commerce. 
 
 Cited in Emert v. Missouri, 156 U. S. 309, 39 L. ed. 433, 5 Inters. Com. Rep.. 
 76, 15 Sup. Ct. Rep. 367, Affirming 103 Mo. 249, 11 L. R. A. 221, 3 Inters. Com. 
 Rep. 529, 23 Am. St. Rep. 874, 15 S. W. 81, holding statute license for peddling,, 
 without discrimination against goods of other states, not interference with in- 
 terstate commerce; Saulsbury v. State, 43 Tex. Grim. Rep. 94, 96 Am. St. Rep.. 
 837. 63 S. W. 568, holding liable peddler who had buggies shipped to him in 
 state, which he put together and peddled. 
 
 Cited in footnotes to Brownback v. North Wales, 49 L. R. A. 446, which holds 
 valid as to residents, ordinance requiring license for sale of goods on street or by 
 soliciting orders from house to house; McLaughlin v. South Bend, 10 L. R. A. 357, 
 which holds requirement of peddling license unenforceable against person nego- 
 tiating for sale of property in other state; Rosenbloom v. State, 57 L. R. A. 923, 
 which sustains license tax on peddlers, though venders of own products exempt; 
 Emmons v. Lewiston, 8 L. R. A. 328, which holds ordinance requiring license of 
 book canvassers invalid. 
 
 Cited in notes (8 L. R. A. 273) on peddlers' licenses; (7 L. R. A. 667) on 
 hawkers and peddlers subject to state license; (14 L. R. A. 98) on peddlers and 
 drummers as related to interstate commerce; (11 L. R. A. 219) on state au- 
 thority to impose licenses; (12 L. R. A. 624) on supreme power of Congress to 
 regulate interstate commerce; (60 L. R. A. 690) on taxation of trade and the 
 commerce clause; (19 L.R.A.(N.S.) 315) on license or occupation tax on hawk- 
 ers, peddlers, and persons engaged in soliciting orders by sample or otherwise,, 
 as violating the commerce clause. 
 
 Disapproved in French v. State, 42 Tex. Grim. Rep. 224, 52 L. R. A. 161, 58 
 S. W. 1015, holding occupation tax on peddlers, as applied to agent of nonresi- 
 dent organ company peddling from wagon, is interference with interstate com- 
 merce. 
 Taxation. 
 
 Cited in note (4 L. R. A. 810) on uniformity of taxation. 
 Indictment need not negative exception. 
 
 Cited in State v. Dry Fork R. Co. 50 W. Va. 237, 40 S. E. 447, holding that 
 
3 L.H.A. 705] L. R. A. CASES AS AUTHORITIES. 570 
 
 when exception or proviso not in description of offense, it need not be negatived 
 in indictment. 
 
 3 L. R. A. 709, TEMPLE v. BAKER, 125 Pa. 634, 11 Am. St. Rep. 926, 17 
 
 Atl. 516. 
 Indorser's liability. 
 
 Cited in Moran v. Bates, 16 Lane. L. Rev. 148, denying liability of irregular 
 indorser on note transferred after maturity; Breyfogle v. De Rone, 6 Northampton 
 Co. Rep. 85, holding indorser under "credit drawer" on face of note not liable to 
 payee; Alldred's Estate, 229 Pa. 631, 79 Atl. 141, holding that directors, in- 
 dorsing corporate note, by accepting benefit of indemnity become principals and 
 cannot set up nonpresentment and want of notice of dishonor; American Trust 
 Co. v. Canevin, 59 Pittsb. L. J. 239, 107 C. C. A. 543, 184 Fed. 658, holding 
 that bishop indorsing church note as trustee is not personally liable; Columbia 
 Bldg. Asso. v. Boyd, 26 Lane. L. Rev. 229, holding that indorser of note before 
 payee is second indorser and not liable to payee. 
 
 Cited in footnote to Witty v. Michigan Mut. L. Ins. Co. 8 L. R. A. 365, which 
 holds note negotiable, although blank in body as to amount and place of payment. 
 
 Cited in note (72 Am. St. Rep. 683) on effect of indorsement by stranger 
 before delivery. 
 
 Distinguished in First Nat. Bank v. Bachman, 3 Pa. Dist. R. 460, 10 Lane. L. 
 Rev. 414, holding that corporate note, payable to one as treasurer, operates as 
 though payable to self. 
 Delivery. 
 
 Cited in note (6 L. R. A. 471) on delivery essential to validity of note. 
 Collateral agreements. 
 
 Cited in Weaver v. Adams, 132 Pa. 395, 19 Atl. 271, holding judgment by con- 
 fession cannot be shown to have been in consideration of agreement by judgment 
 creditor to pay self and other creditors. 
 
 3 L. R. A. 711, THE CURTIS, 37 Fed. 705. 
 Admiralty jurisdiction over torts. 
 
 Cited in Bain v. Sandusky Transp. Co. 60 Fed. 914, holding jurisdiction limited 
 to maritime torts, of which test is locality, and which must be committed on 
 water; Hermann v. Port Blakely Mills Co. 69 Fed. 650, holding locus of damage, 
 and not loans of origin of tort, real test of jurisdiction; The John C. Sweeney, 
 55 Fed. 543, holding admiralty without jurisdiction of libel against schooner for 
 injury to swing bridge resting on pier in river; The Blackheath, 122 Fed. 113, 
 denying admiralty jurisdiction of action for damages for injury to immovable 
 beacon-light structure; The Mackinaw, 165 Fed. 352, holding admiralty has juris- 
 diction of action for injury to person on pontoon, by moving vessel, although 
 pontoon is fastened to shore by cable. 
 
 Cited in note (21 L.R.A. (N.S. ) 324) on jurisdiction of action growing out 
 of collision of vessel with bridge. 
 
 Distinguished in The Strabo. 90 Fed. 112, holding, where workman falls to 
 dock from ladder defectively secured to ship's rail, case within jurisdiction. 
 
 Disapproved in West v. Martin, 47 Wash. 423, 92 Pac. 334, holding admiralty 
 has jurisdiction of injury where pier of lawfully constructed bridge resting on 
 bottom of navigable stream is run into by vessel. 
 Test of locality of tort. 
 
 Cited in Rundell v. Louisiana Campagnie Generale Transatlantique, 49 L. R. 
 A. 94, 40 C. C. A. 628, 100 Fed. 657, holding locus oi tort determined by place 
 where damage and injury arose. 
 
571 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 724 
 
 Conflict of lav. s in admiralty jnrindiction. 
 
 Cited in Rundell v. Louisiana Campagnie Generale Transatlantique, 49 L. R. 
 A. 95, 40 C. C. A. 629, 100 Fed. 658, holding case of death from drowning, as re- 
 sult of collision on high seas, must be adjudged according to admiralty law of 
 United States, and not local law of nation to which vessel belongs. 
 
 3 L. R. A. 713, FERRIS v. VANIER, 6 Dak. 186, 42 N. W. 31. 
 Discrimination in taxation. 
 
 Cited in Gay v. Thomas, 5 Okla. 14, 46 Pac. 578, holding that property of citi- 
 zens within Indian reservations can be taxed by territorial legislation; Meade 
 County v. Hoehn, 12 S. D. 504, 81 N. W. 887, holding that illegal assessment in 
 unorganized county does not relieve personal property therein from taxation in 
 organized county; Meade County v. Hoehn, 12 S. D. 472, 81 N. W. 886, holding 
 personal property situated in unorganized county taxable in organized county 
 where owner resides; Northern P. R. Co. v. Barnes, 2 N. D. 330, 51 N. W. 386, 
 holding act taxing gross earnings of railroads valid; Frontier Land & Cattle 
 Co. v. Baldwin, 3 Wyo. 770, 31 Pac. 403, holding exemption from taxation of 
 goods of merchant to keep up stock not unlawful discrimination; Dupree v. 
 Stanley County, 8 S. D. 32, 65 N. W. 426. holding taxation for state purposes 
 Talid; McClelland v. State, 138 Ind. 338, 37 N. E. 1089, holding act to reimburse 
 public officer for money lost in official capacity invalid; State ex rel. Reno v. 
 Boyd, 27 Nev. 257, 74 Pac. 654, holding statute void which provides moneys 
 received trom licenses in cities shall be apportioned in varying amounts to state, 
 to county in which city is located and to city itself. 
 
 Cited in footnotes to State, Alexander, Prosecutor, v. Elizabeth, 23 L. R. A. 
 525, which holds invalid special statute discriminating between municipalities 
 already having, and those not having, racecourse; Rode v. Siebe, 39 L. R. A. 342, 
 which holds discrimination between taxes on personalty and on realty justified by 
 difference between them; Hamilton County v. Rasche Bros. 19 L. R. A. 584, 
 which holds statute as to taxes, not applying to all parts of state, unconstitu- 
 tional ; Milwaukee County v. Isenring, 53 L. R. A. 635, which holds act regulat- 
 ing sheriff's fees for particular county, local. 
 
 Cited in notes (19 L. R. A. 79) on power of state legislature to exempt from 
 taxation; (7 L. R. A. 194) on prohibition against local and special legislation. 
 
 3 L. R. A. 724, RUBY v. TALBOTT, 5 N. M. 251, 21 Pac. 72. 
 Alteration of note. 
 
 Cited in Richardson v. Fellner, 9 Okla. 520, 60 Pac. 270, holding evidence of 
 material alteration of note admissible; Cox v. Alexander, 30 Or. 446, 46 Pac. 
 794, holding insertion of name of payee and place of payment in blanks in note 
 does not void it. 
 
 Cited in footnote to Rochford v. McGee, 61 L. R. A. 335, which holds removal 
 of note written below perforated line on application for insurance a material 
 alteration rendering it void. 
 
 Cited in notes (22 L. R. A. 687) on liability of maker or drawer on raised 
 negotiable paper; (6 L. R. A. 469; 7 L. R. A. 743) on effect of alteration of 
 written instruments; (6 L.R.A. 626) on use of fictitious names in negotiable 
 paper; ( :V2 L.R.A. (X.S.) 517) on alteration of date of note: (86 Am. St. Rep. 
 96, 97, 99, 103, 105) on unauthorized alteration of written instruments. 
 
3 L.R.A. 733] L. R. A. CASES AS AUTHORITIES. 572: 
 
 3 L. R. A. 733, SOUTH FLORIDA R. CO. v. RHOADS, 25 Fla. 40, 23 Am. St. 
 
 Rep. 506, 5 So. 633. 
 What are reasonable railroad regulations. 
 
 Cited in Southern R. Co. v. Watson, 110 Ga. 690, 36 S. E. 209, holding rule of 
 railroad putting time limit on use of ticket reasonable; Muckle v. Rochester 
 R. Co. 79 Hun, 35, 29 N. Y. Supp. 732, holding rule of street railway limiting 
 time of use of transfer ticket reasonable; Chilton v. St. Louis & I. M. R. Co. 
 19 L. R. A. 270, 21 S. W. 458 (omitted from official report in 114 Mo. 91), 
 holding resonableness of regulation excluding negroes from ladies' car is ques- 
 tion of law. 
 
 Cited in footnotes to Dwindle v. New York C. & H. R. R. Co. 8 L. R. A. 224,. 
 which holds railroad company liable for acts of porter of sleeping or drawing- 
 room car; North Chicago City R. Co. v. Gastka, 4 L. R. A. 481, which holds 
 carrier liable for conductor's lack of care in ejecting passenger for nonpay- 
 ment of fare; Gulf, C. & S. F. R. Co. v. Henry, 16 L. R. A. 318, which holds 
 ticket good for continuous passage does not entitle holder to stop at interme- 
 diate points. 
 
 Cited in notes (43 L. R. A. 363) on duties of master and servant as to rules 
 promulgated for safe conduct of business; (26 L. R. A. 133) on place at which 
 one refusing to pay fare may be ejected; (12 L. R. A. 824) on ejection of 
 passenger for refusal to pay fare; (9 L. R. A. 688) on expulsion of passenger; 
 (3 L. R. A. 635) on liability of company for injuries resulting from misconduct 
 of its servants. 
 
 Distinguished in Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 448, 43 So- 
 318, excluding as evidence rule as to standing on platform of car. 
 Determination of reasonableness. 
 
 Cited in Western U. Teleg. Co. v. Love Banks Co. 73 Ark. 208, 83 S. W. 949, 
 3 A. & E. Ann. Gas. 712, holding it for court whether regulation of telegraph 
 company in fixing office hours at certain place were reasonable; Cincinnati. N. 
 O. & T. P. R. Co. v. Lovell, 141 Ky. 260, L.R.A.(N.S.) , 132 S. W. 569, 
 holding that construction of rules is for court. 
 
 Cited in note (43 Am. St. Rep. 153) on determination by court of reason- 
 ableness of by-laws. 
 
 3 L. R. A. 739, TOWNSHEND v. GOODFELLOW, 40 Minn. 312, 12 Am. St. Rep. 
 
 736, 41 N. W. 1056. 
 Specific performance of contract. 
 
 Cited in Fairchild v. Marshall. 42 Minn. 18, 43 N. W. 563, decreeing specific 
 performance where election of insane woman under provisions of will, made by 
 court; Brown v. Munger, 42 Minn. 487, 44 N. W. 519, decreeing specific per- 
 formance of contract originally unenforceable, but subsequently made good:. 
 Easton v. Montgomery, 90 Cal. 315, 25 Am. St. Rep. 123, 27 Pac. 280, holding 
 vendor need not be clothed with absolute title at time of entering into contract 
 for sale; Blanton v. Kentucky Distilleries & Warehouse Co. 120 Fed. ;!oS, de- 
 creeing specific performance where vendor had some title which could be per- 
 fected; Gray v. Smith, 28 C. C. A. 173, 48 U. S. App. 581, 83 Fed. 829, Affirm- 
 ing 76 Fed. 531, holding vendor, without title or contractual relation to obtain 
 one, cannot recover damages if purchaser withdraws; Easton v. Lockhart, 10' 
 N. D. 186, 86 N. W. 697, holding vendee must be prepared to fulfil on his 
 part, to obtain specific performance of contract; Gregory v. Christian, 42 Minn. 
 306, 18 Am. St. Rep. 507, 44 N. W. 202, holding vendor has reasonable time 
 after demand to prepare conveyance, but not to perfect title; Tewksbury v. 
 Howard, 138 Ind. Ill, 37 N. E. 355, stating good title at time of decree for 
 
573 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 739 
 
 specific performance sufficient; Duluth Loan & Land Co. v. Klovdahl, 55 Minn. 
 343, 56 N. W. 1119, holding allegations of encumbrances, possible to be re- 
 moved before completion of time of contract, no defense to instalment due; 
 Brown v. Lee, 1 :3 C. C. A. 141, 192 Fed. 821, holding that vendor is not able 
 to perform, where he requires vendee's money to obtain title; Martinson v. 
 Regan, 18 N. D. 472, 123 X. W. 285; Armstrong v. Maryland Coal Co. 67 VV. 
 Va. 611, 69 S. E. 195; Provident Loan Trust Co. v. Mclntosh Co. 68 Kan. 462. 
 75 Pac. 498, 1 A. & E. Ann. Cas. 906, holding that contract of sale will be 
 sustained though vendor did not have title at the time but had sucli control 
 thereof that he can fulfill his agreement; Day v. Mountin, 70 C. C. A. 190, 137 
 Fed. 702, holding contract for sale of land not owned by vendor at time of 
 contract, such fact being known to vendee, enforceable where he obtains title 
 and is able to perform; McNeny v. Campbell, 81 Neb. 758, 116 N. W. 671, 
 holding that person can make valid agreement for sale of land, when he can 
 acquire title by voluntary act of owner or by proceedings at law or in equity; 
 Greer v. International Stock Yards, 43 Tex. Civ. App. 377, 96 S. W. 79, holding 
 that land contract will be enforced, wheie question of vendor's title by limita- 
 tion is one of law. 
 
 Cited in footnote to Hodges v. Kowing, 7 L. R. A. 87, which holds that rem- 
 edy at law will not defeat specific performance of contract for sale of land. 
 
 Cited in notes (12 L. R. A. 245) on rights and remedies of vendor; (5 L. R. A. 
 654) on equity compelling vendee to take defective title; (10 L. R. A. 127) on 
 application of doctrine of laches. 
 What is marketable title. 
 
 Cited in Hedderly v. Johnson, 42 Minn. 446, 18 Am. St. Rep. 521, 44 N. W. 
 527, holding reservation of right of way for railroad did not affect marketability 
 of title; Austin v. Barnum, 52 Minn. 139, 53 N. W. 1132, holding undischarged 
 mortgage rendered title unmarketable; Harrass v. Edwards, 94 Wis. 464, 69 N. 
 W. 69, holding deed not entitled to be recorded except as to one of twenty grant- 
 ors not marketable title; Richmond v. Koenig, 43 Minn. 481, 45 N. W. 1093, 
 holding title not marketable when existence of uncertain homestead is neces- 
 sary to defeat apparent lien of judgments; Menage v. Burke, 43 Minn. 212, 19 
 Am. St. Rep. 235, 45 N. W. 155, holding that foreclosure of mortgage to indi- 
 viduals of a firm passed title; Brown v. Jones, 52 Minn. 490, 55 N. W. 54, 
 holding vendee equitable owner subject to contract, in foreclosure of liens; 
 McXutt v. Nelland, 82 Kan. 426, 108 Pac. 834, holding unmarketable, title rest- 
 ing on deed of foreign assignee solely by virtue of order of foreign court; Wil- 
 liams v. Bricker, 83 Kan. 56, 30 L.R.A. (N.S.) 345, 109 Pac. 998, holding title 
 unmarketable, if there be doubt or uncertainty suflicient to form basis of litiga- 
 tion; Howe v. Coates, 97 Minn. 397, 4 L.R.A. (N.S.) 1178, 114 Am. St. Rep. 
 723, 107 N. W. 397, holding title not marketable if there be a defect in the 
 record title which can be cured only by resort to parol evidence; Wollenberg 
 v. Rose, 45 Or. 621, 78 Pac. 751, holding that title which on its face is subject 
 to litigation is not marketable title; Harrette v. Whitney, 36 Utah, 599, 37 
 L.R.A. (X.S.) 381, 106 Pac. 522 (dissenting opinion), on marketability of title 
 based on final decree of distribution by probate court. 
 
 Cited in footnote to Ladd v. Weiskopf, 69 L.R.A. 785, which holds title not 
 rendered unmarketable so as to entitle vendee to rescind and recover back pur- 
 chase money by deed as to construction of a decree of distribution which is 
 conclusive on all parties interested. 
 
 Cited in notes (38 L.R.A. (N.S.) 10, 19, 27, 28; 132 Am. St. Rep. 994) on 
 what is a marketable title. 
 
3 L.R.A. 743] L. R. A. CASES AS AUTHORITIES. 574 
 
 3 L. R. A. 743, FLETCHER v. FITCHBURG R. CO. 149 Mass. 127, 21 X. E. 302. 
 Care required at railroad crossing* 
 
 Cited in Clark v. Boston & M. R. Co. 164 Mass. 439, 41 N. E. 666. holding no 
 absolute legal rule requiring person approaching crossing, under all circumstances 
 to stop, to look, and to listen; Johanson v. Boston & M. R. Co. 153 Mass. 60 r 
 26 N. E. 426, holding question of care for jury, where children of ten and 
 eleven, killed at crossing, looked, but view of track was obscured; Chase v_ 
 Maine C. R. Co. 167 Mass. 387, 45 N. E. 911, holding burden upon plaintiff 
 to show reasonable care in crossing track, although defendant be in fault; Stew- 
 art v. New York, X. H. & H. R. Co. 170 Mass. 432, 49 N. E. 650, holding 
 stepping upon track at crossing, without looking or listening, absorbed in deep- 
 thought, not use of due care; Debbins v. Old Colony R. Co. 154 Mass. 404, 28- 
 N. E. 274, holding no case for jury, where injured passenger, warned of 
 danger, crossed tracks without sufficiently looking; Tyler v. Old Colony R. Co, 
 157 Mass. 340, 32 N. E. 227, holding walking upon crossing without looking not 
 use of due care; Walsh v. Boston & M. R. Co. 171 Mass. 57, 50 N. E. 453, hold- 
 ing action not maintainable where it is merely conjectural whether person 
 killed at crossing looked or listened; St. Louis, 1. M. & S. R. Co. v. Martin, 
 61 Ark. 558, 33 S. W. 1070, holding recovery for death of one standing, talk- 
 ing, without listening, on main track at crossing on dark night, precluded: 
 Little Rock & Ft. S. R. Co. v. Cullen, 54 Ark. 436, 16 S. \V. 169, holding injured 
 person, crossing tracks without looking or listening, cannot recover although 
 train approached at unusual speed; Chicago & X. W. R. Co. v. Andrews, 130 Fed. 
 72, denying recovery of one who neglected to stop, look, and listen before cross- 
 ing tracks; Bates v. Fremont, E. & M. V. R. Co. 4 S. D. 407, 57 X. W. 72 
 (dissenting opinion), majority holding it question for jury whether plaintiff 
 took sufficient precautions to prevent killing of stock at crossing; Cincinnati. 
 I. St. L. & C. R. Co. v. Grames, 8 Ind. App. 147. 34 X. E. 613, holding exercis-; 
 of due care wheje- two -persons in wagon approached crossing with view ob- 
 structed, looked, listened, and started across on walk; Denver & R. G. R. Co. v 
 Ryan, 17 Colo. 101, 28 Pac. 79, holding going upon railroad track without look- 
 ing and listening and observing surroundings to be negligence; Carter v. Cen 
 tral Vermont R. Co. 72 Vt. 194, 47 Atl. 797, holding driving upon dansrerou-: 
 crossing without slackening speed and without vigilance prevents recovery. 
 Oleson v. Lake Shore & M. S. R. Co. 143 Ind. 412, 32 L. R. A. 151. 42 X. K. 
 736, holding failure to wait at crossing until wind had cleared smoke obscur- 
 ing view, contributory negligence; Chicago, K. & W. R. Co. v. Fisher, 49 Kan. 
 485, 30 Pac. 462, holding that traveler, knowing train is about due, must wait for 
 obscuring cloud of dust to clear, before attempting to cross tracks; Indianapolis 
 Union R. Co. v. Xeubacher, 16 Ind. App. b4. 44 X. E. 069, holding mere failure 
 to wait until view is unobstructed by passing train, where many trains pa-s 
 crossing daily, not contributory negligence, as matter of law; Donnelly v. Boston 
 & M. R. Co. 151 Mass. 212, 24 N. E. 38, holding obstruction of view by cars 
 at crossing does not exonerate person from all duty to investigate; Rogers v. 
 Boston & M. R, Co. 187 Mass. 219, 72 X. E. 945, holding it contributory negli- 
 gence to fail to stop and listen before driving on track where view is obstructed 
 and noise of own vehicle was known by driver to prevent hearing approaching 
 train; Union P. R. Co. v. Rosewater, 15 L.R.A.fX.S.) 809. 84 C. C. A. 616, 157 
 Fed. 174, 13 A. & E. Ann. Cas. 851, holding it contributory negligence to look 
 when it is of no avail and to fail to look again when danger could be seen 
 and avoided; Lundergan v. Xew York C. & H. R. R. Co. 203 Mass. 465. 89 
 N. E. 625, holding traveler at railroad crossing bound to make use of senses 
 to discover approach of train, although gates are open and unattended. 
 
575 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 751 
 
 Cited in footnotes to Feeney v. Long Island R. Co. 5 L. R. A. 544, which holds 
 traveler not negligent per se in failing to notice that farther gate coming 
 down, before reaching it; Louisville & X. R. Co. v. Webb, 11 L. R. A. 674, which 
 holds failure to use senses before crossing track not excused by unlawful 
 speed of train and watchman's failure to do duty; Oleson v. Lake Shore & M. 
 S. R. Co. 32 L. R. A. 149, which holds it negligent to attempt to cross track 
 immediately after passage of train whose smoke obstructs view; Woehrle v. Min- 
 nesota Transfer R. Co. 52 L. R. A. 343, which holds traveler's failure to look 
 and listen when watchman absent not negligence per se; Western & A. R. Co. v. 
 Ferguson, 54 L. R. A. 802, which holds failure to look when within 30 feet 
 of track not prevent recovery; Lorenz v. Burlington, C. R. & N. R. Co. 56 L. R. 
 A. 753, which holds negligence of one pursuing cow, in not looking and listen- 
 ing before crossing railroad track, for jury; Keenan v. Union Traction Co. 58 
 L. R. A. 217, which holds failure to look for train when within 35 feet of 
 track, negligence; Colorado & Southern R. Co. v. Thomas, 70 L.R.A. 681, which 
 holds failure to look and listen before crossing track not excused by existence 
 of building adjoining highway which would obstruct view of tracks and by 
 noise created therein which would prevent hearing approaching train. 
 
 Cited in notes (9 L. R. A. 161, 162, 163) on duty of traveler approaching rail- 
 road crossing; (37 L.R.A. (X.S.) 143) on duty of traveler approaching railway 
 crossing as to place and direction of observation. 
 
 Distinguished in Hubbard v. Boston & A. R. Co. 162 Mass. 135, 38 X. E. 366, 
 holding it question for jury whether deceased waited long enough after pas- 
 sage of freight train at crossing. 
 Duty of railroad company. 
 
 Cited in Santore v. Xew York C. & H. R. R. Co. 203 Mass. 441, 89 X. E. 619, 
 holding servant shoveling ashes in ash pit in roundhouse may rely on customary 
 warnings of approach of engine or car but is not relieved from reasonable use 
 of senses to ascertain their approach. 
 
 Cited in footnote to Birmingham Mineral R. Co. v. Jacobs, 12 L. R. A. 830,. 
 which holds failure to stop train within 100 feet of crossing of other railroad 
 not excused by fact that rear of train would be left standing across another 
 track. 
 
 Cited in notes (9 L. R. A. 158) on duty of railroad company as to travelers 
 on highway; (9 L. R. A. 157) on imputing driver's negligence to passenger. 
 
 3 L. R. A. 746, BLAKE v. TRADERS XAT. BAXK, 149 Mass. 250, 21- N. E. 
 381. 
 
 3 L. R. A. 747, COM. v. TOLMAX, 149 Mass. 229, 14 Am. St. Rep. 414, 21 X. E. 
 
 377. 
 What constitutes an "attempt." 
 
 Cited in footnotes to People v. Youngs, 47 L. R. A. 108, which holds prepara- 
 tion for committing burglary prevented by arrest of party while proceeding 
 towards house not an attempt; Groves v. State, 59 L. R. A. 598, which holds 
 mere preparatory acts for commission of crime not an attempt. 
 Sufficiency of exception to instructions. 
 
 Cited in Buck v. Territory, 1 Okla. Crim. Rep. 525, 93 Pac. 1017, holding 
 exception which challenges each and every paragraph in instruction should be 
 treated as general exception. 
 
 3 L. R. A. 751, UXITED STATES v. M.\\V, KI.L LAXD GRAXT CO. 5 X. M. 
 297, 21 Pac. 153. 
 
3 L.R.A. 754] L. R. A. CASES AS AUTHORITIES. 57G 
 
 3 L. R. A. 754, RANDALL v. DUFF, 79 Cul. 123, 19 Pac. 532, 21 Pac. 610. 
 
 Cited in later appeals in 101 Cal. S3, 35 Pac. 440; 116 Cal. 227, 58 Am. St. 
 Rep. 358, 48 Pac. 66. 
 Constructive notice. 
 
 Cited in Brock v. Pearson, 87 Cal. 588, 25 Pac. 963, holding Us pcndens no- 
 tice not destroyed by amendment of complaint. 
 
 Cited in notes (21 L.R.A. 36) on how far purchaser at execution or judicial 
 sale protected as a bona fide purchaser; (21 L.R.A. 36) on purchaser at execu- 
 tion or judicial sale as bona fide purchaser; (56 Am. St. Rep. 858, 809) on 
 law of lis pendens. 
 Scope of power of attorney. 
 
 Cited in Anderson v. Bigelow, 16 Wash. 200, 47 Pac. 426, holding general power 
 to sell and convey does not authorize dedication of part of property for street 
 purposes; Winter v. McMillan, 87 Cal. 262, 22 Am. St. Rep. 243, 25 Pac. 407, 
 holding it does not authorize attorney to give away property or to convey it 
 to himself for nominal consideration; Hunter v. Eastham, 95 Tex. 653, 69 S. 
 W. 66, holding it does not authorize conveyance for consideration running to 
 attorney; Alcorn v. Buschke, 133 Cal. 657, 66 Pac. 15, holding attorney has 
 no power to convey without consideration; Palmer v. Texas Tram & Lumber 
 Co. 3 Tex. Civ. App. 474, 23 S. W. 38, on validity of conveyance by attorne- 
 in excess of power. 
 Effect upon mortgage of judgment setting aside deed. 
 
 Cited in Hewlett v. Pilcher, 85 Cal. 54.4, 24 Pac. 781, holding it does not affect 
 lien of mortgage where mortgagee had no notice of cause for which deeds are 
 annulled. 
 Proper parties in equitable proceeding to adjust rights. 
 
 Cited in Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 601, 77 Pac. 
 1113, holding purchasers from one who it is alleged unlawfully abstracted water 
 from tunnel, proper parties in action to restrain diversion of water. 
 Scope of mortgage foreclosure proceedings. 
 
 'Cited in Murray v. Etchepare, 129 Cal. 320, 61 Pac. 930, holding party who 
 claims by title paramount to mortgagor and mortgagee cannot litigate it in 
 foreclosure proceedings. 
 
 Cited in notes (68 Am. St. Rep. 359) on litigation of paramount titles in 
 suit to foreclose mortgage; (40 L.R.A. (N.S.) 842) on right of one in possession 
 claiming under void foreclosure. 
 When statute of limitations begins to run. 
 
 Cited in note (22 Am. St. Rep. 228) as to when statute of limitations begins 
 to run. 
 
 3 L. R. A. 759, ADRIAN v. McCASKILL, 103 N. C. 182, 14 Am. St. Rep. 788, 
 
 9 S. E. 284. 
 Indorsement without recourse. 
 
 Cited in Moore v. First Nat. Bank, 38 Colo. 341, 10 L.R.A. (N.S.) 260, 120 
 Am. St. Rep. 120, 88 Pac. 385, 12 A. & E. Ann. Cas. 268, holding where indorser 
 to whom is returned note as uncollectable by its indorsee, without recourse, 
 re-issues note without striking out its former indorsement, it is liable to its 
 transferee. 
 
 Cited in note (12 L.R.A. 371) on indorsement and transfer of commercial 
 paper without recourse. 
 
577 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 766 
 
 l.inliilit > of indorsers. 
 
 Cited in Lynch v. Loftin, 153 N. C. 273, 69 S. E. 143, holding that indorser 
 cannot recover against subsequent indorser. 
 
 Cited in note (10 L.R.A. (N.S.) 261) on liability of one retransfering re- 
 indorsed note for value without canceling his indorsement. 
 
 3 L. R. A. 761, LAFAYETTE COUNTY MONUMENT CORP. v. MAGOON, 73 
 
 \Vi<. 627, 42 N. VV. 17. 
 "When subscription enforceable. 
 
 Cited in McClanahan v. Payne, 86 Mo. App. 290, holding gratuitous subscrip- 
 tion unenforceable if withdrawn before acted upon; Seventh Day Baptist Memo- 
 rial Fund v. Saunders, 84 Wis. 573, 54 N. W. 1094, holding consideration for 
 subscription note sufficient where others executed similar notes, some of which 
 are paid; Gibbons v. Grinsel, 79 Wis. 371, 48 N. W. 255, holding subscriber lia- 
 ble on subscription to build, where person to whom it runs has incurred ob- 
 ligations on its strength. 
 
 Cited in note (4 L. R. A. 400) on conveyance of property to be acquired in 
 the future. 
 Parol evidence as to written agreement. 
 
 Cited in Providence Washington Ins. Co. v. Board of Education, 49 W. Va. 
 377, 38 S. E. 679, holding agent of insurance company cannot verbally waive 
 right to repair or rebuild damaged building. 
 
 Cited in footnote to Baer's Appeal, 4 L. R. A. 609, which holds inadmissible 
 oral evidence of contemporaneous agreement for withdrawal of money at any 
 time. 
 
 Cited in notes (6 L. R. A. 34) on prior negotiations merged in written con- 
 tract; (6 L. R. A. 38; 13 L. R. A. 622) on parol evidence to vary terms of 
 written instrument; (17 L. R. A. 271) on parol evidence to vary, add to, or 
 alter written contract; (6 L. R. A. 38) on parol evidence cannot vary terms of 
 contract; (31 L.R.A. (N.S.) 236) on admissibility of parol evidence as to man- 
 ner or means of paying written contract not within statute of frauds, purport- 
 ing to be payable in money. 
 K\t inji iii slum- tit of original debt. 
 
 Cited in Sutton v. Baldwin, 146 Ind. 364, 45 N. E. 518, holding debt extin- 
 guished by receiving check in payment. 
 
 Cited in note (35 L.R.A. (N.S.) 106) on payment by commercial paper. 
 
 3 L. R. A. 7G6, CROSSAN v. NEW YORK & N. E. R. CO. 149 Mass. 196, 14 
 
 Am. St. Rep. 408, 21 N. E. 367. 
 "When carrier can detain goods till freight paid. 
 
 Cited in Illinois C. R. Co. v. Brookhaven Mach. Co. 71 Miss. 673, 16 So. 252, 
 holding that last carrier cannot retain goods in order to collect for intermediate 
 carrier rates in excess of original contract; Fordyce v. Johnson. 56 Ark. 436, 19 
 S. W. 1050, holding final carrier entitled to lien on freight for its own charges 
 and those of former carrier paid by it, though in excess of amount guaranteed 
 in bill of lading given by initial carrier; Georgia R. & Bkg. Co. v. Murrah, 
 85 Ga. 347, 11 S. E. 779, holding last carrier can hold goods until charges of 
 other intermediate carriers have been paid. 
 
 Cited in footnotes to Taffe v. Oregon R. & Nav. Co. 58 L. R. A. 187, which 
 denies initial carrier's liability under bill of lading beyond own line; Union 
 State Bank v. Fremont, E. & M. Valley R. Co. 59 L. R. A. 939, which sus- 
 tains initial carrier's right to limit liability to own line; St. Louis, I. M. & S. 
 . Co. v. Coolidge, 67 L.R.A. 555, which holds that delay by initial carrier in 
 L.R.A. Au. Vol. I. 37. 
 
3 L.R.A. 766] L. R. A. CASES Ab AUTHORITIES. 578 
 
 transporting goods liable to injury by climate renders it liable for damage to 
 goods delivered to consignee in damaged condition, unless it shows that such 
 delay did not produce the injury in whole or part, notwithstanding delay of con- 
 necting carrier; Kansas City F. S. & M. R. Co. v. Washington, 69 L.R.A. 65, 
 which holds initial carrier checking baggage to destination on through ticket 
 liable for loss on connecting line. 
 
 Cited in notes (9 L. R. A. 450) on forwarding animals by connecting line; 
 (9 L.R.A. 836) on excuse for delay in transportation; (6 L.H.A. ( N.S. ) 1049) on 
 refusal of connecting carrier to surrender freight, under mistake as to rate or 
 prepayment, as conversion; (37 L. ed. U. S. 293) on duty and liability as car- 
 rier of live stock. 
 Binding; effect of written contract accepted Tvithont rending- 
 
 Cited in Usher v. Raymond Skate Co. 163 Mass. 4, 39 N. E. 416, holding that 
 note having been taken upon statement of stranger, holders took their chances 
 on it. 
 II iulus of connecting carrier*. 
 
 Cited in Reynolds v. Seaboard Air Line R. Co. 81 S. C. 385, 62 S. E. 445, hold- 
 ing connecting carrier may collect usual rates if initial carrier without authority 
 agrees to transport for less; Houston & T. R. Co. v. Everett, 99 Tex. 276, 89 S. 
 W. 761, holding in absence of course of dealing from which authority could be 
 implied or of agreement to that effect, initial carrier cannot make contract to 
 ship over route other than authorized by connecting carrier. 
 Riiilits of party on doubtful instructions by other contracting party. 
 
 Cited in Webb v. Hanley, 206 Mass. 304, 92 N. E. 429, holding that yacht 
 builder may stop work on boat on receipt of letter from buyer suggesting that 
 boat may be sold in different place than that in which he first intended to use it. 
 
 3 L. R. A. 769, RICE v. ANGELL, 73 Tex. 350, 11 S. W. 338. 
 Partnership good-will. 
 
 Cited in Dyer v. Shove, 20 R. I. 260, 38 Atl. 498, holding upon dissolution 
 of partnership each partner has equal right to use name of firm; Millspaugh 
 Laundry v. First Nat. Bank, 120 Iowa, 5, 94 N. W. 262, defining good-will as 
 benefit acquired by firm beyond value of stock, in consequence of patronage 
 received from regular customers. 
 
 Cited in footnote to Hutchinson v. Xay, 68 L.R.A. 186, which sustains sur- 
 viving partner's right to enter into competing business and solicit trade from 
 customers of old firm, notwithstanding sale of good will as part of firm assets at 
 instance of personal representative of deceased. 
 
 Cited in notes (40 Am. St. Rep. 570) on rights of partners, as to good will,, 
 after dissolution of firm; (96 Am. St. Rep. 611, 612) on good will of partner- 
 ship as means of making it productive on dissolution; (19 Eng. Rul. Cas. 664) 
 on partnership good will as partnership assets. 
 Kind of business to which good-will may attach. 
 
 Cited in Douthart v. Logan, 86 111. App. 311, holding no good-will attaches 
 to business of buying and selling grain on commission. 
 
 Cited in footnote to Slack v. Suddoth, 45 L. R. A. 589, which denies outgoing 
 partner's right to have forced sale of good-will of dental business. 
 Validity of partnership for indefinite period. 
 
 Cited in Johnson v. Jackson, 130 Ky. 755, 114 S. W. 260, 17 A. & E. Ann. Cas.. 
 699, holding contract to last during mutual will of parties valid. 
 
579 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 777 
 
 3 L. R. A. 773, JAMESON v. MAJOR, 86 Va. 51, 9 S. E. 480. 
 A p|i-:i ! from interlocutory decreed. 
 
 Cited in Noel v. Noel, 86 Va. 112, 9 S. E. 584, holding decree leaving anything 
 to be done by the court, interlocutory; Fredenheim v. Rohr, 87 Va. 786, 13 S. 
 E. 26G (dissenting opinion), majority upholding appeal from order of lower 
 court dissolving injunction; Southern R. Co. v. Glenn, 98 Va. 317, 36 S. E. 395, 
 holding interlocutory decree appealable at any time within year after final 
 decree; Hopkins v. Prichard, 51 W. Va. 392, 41 S. E. 347, holding decree appeal- 
 able by person whose rights were adjudicated thereby; Richmond v. Richmond, 
 <i2 W. Va. 215, 57 S. E. 736, holding decree in partition which adjudges title in 
 parties, interests they hold and that partition be made and leaves nothing to be 
 done but division of land, appealable. 
 
 Disapproved in ell'ect in Wood v. Harmison, 41 \V. Va. 382, 23 S. E. 560, hold- 
 ing interlocutory decree not appealable unless adjudicating all the principles 
 of the cause. 
 Construction of -vords of survivorship. 
 
 Cited in Gish v. Moomaw. 89 Va. 360, 15 S. E. 868, holding devise of re- 
 mainder after life estate to testator's surviving brothers or heirs means sur- 
 vivorship at testator's death ; Cheatham v. Gowor, 94 Va. 386, 26 S. E. 853, hold- 
 ing devise of remainder at death of life tenant to his surviving children referred 
 to survivors of life tenant; Chapman v. Chapman, 90 Va. 411, 18 S. E. 913, hold- 
 ing devise of remainder after life estate vests immediately upon testator's death; 
 Schaeffer v. Schaeffer, 54 W. Va. 684, 46 S. E. 150, on construction of terms of 
 survivorship. 
 
 Cited in note (25 Eng. Rul. Gas. 725) on construction of gift over to survivor 
 or survivors of bequest to a class. 
 
 3 L. R. A. 777, STATE ex rel. CHARLESTON, C. & C. R. CO. v. WHITE- 
 SIDES, 30 S. C. 579, 9 S. E. 661. 
 
 Followed without, discussion in State ex rel. Charleston, C. & C. R. Co. v. 
 Harper, 30 S. C. 587, 9 S. E. 664. 
 Proceedings for tvrit of mandamus. 
 
 Cited in Lord v. Bates, 48 S. C. 104, 26 S. E. 213, holding mandamus not 
 prerogative writ, but only a form of action governed by established rules; Lau- 
 ritsen v. Seward, 99 Minn. 325, 109 X. W. 404, holding mandamus will not lie 
 to determir.e election contest involving question of fraud and legality of elec- 
 tion, also citing annotation on this subject; State ex rel. Scale v. Durant, 71 S. 
 C. 3] 3, ol S. E. 146. holding mandamus will not lie to compel board of county 
 commissioners to pay portion of indebtedness growing out of formation of new 
 county, there being no plain duty on part of county to pay such amount. 
 
 Cited in notes (58 L. R. A. 834, 835, 866) on original jurisdiction of court 
 of last resort in mandamus case; (105 Am. St. Rep. 122) on necessary parties 
 to proceedings in mandamus. 
 Mandamus to compel official action. 
 
 Cited in State ex rel. Mauldin v. Matthews. 81 S. C. 416, 22 L.R.A. ( X.S. ) 737, 
 128 Am. St. Rep. 919, 62 S. E. 695, 16 A. & E. Ann. Cas. 182, holding mandamus 
 will lie to compel state board of pharmaceutical examiners to issue license to 
 graduate of reputable college upon payment of fee; Graham v. Folsom, 200 U. S. 
 252, 50 L. ed. 468, 26 Sup. Ct. Rep. 245, holding mandamus will lie to compel 
 county officers to assess and collect taxes to pay judgment on township bonds, 
 although corporate existence of township lias been abolished and corporate agents 
 removed. 
 
 Cited in footnotes to State ex rel. Cromelien v. lioyd, 19 L. R. A. 227, which 
 
3 L.R.A. 777] L. R. A. GASES AS AUTHORITIES. 580 
 
 denies mandamus to compel governor to issue election proclamation; Terri- 
 torial Insane Asylum v. Wolttey, 8 L. R. A. 188, which denies mandamus to 
 compel governor to sign warrant lor funds for asylum; People ex rel. Brod- 
 erick v. Morton, 41 L. R. A. 231, which denies right to mandamus to compel 
 performance of act by governor; Turnbull v. Giddings, 19 L. R. A. 853, which 
 holds unenforceable by mandamus legislator's right to have protest entered 
 on journal ; Greenwood Cemetery Land Co. v. Routt, 15 L. R. A. 369, which au- 
 thorizes mandamus to compel governor to execute patent for land purchased 
 from land board; State ex rel. Miller v. Barber, 27 L. R. A. 45, which holds 
 secretary subject to mandamus to compel affixing to commission of great seal 
 used by governor; Jackson v. State, 42 L. R. A. 792, which sustains right to 
 mandamus to compel reinstatement of pupil whose admission arbitrarily or 
 capriciously refused; Biggs v. McBride, 5 L. R. A. 115, which holds mandamus 
 not proper proceeding to try title to office. 
 
 Cited in notes (6 L. R. A. 161) on mandamus to compel performance of of- 
 ficial duty; (7 L. R. A. 105) on mandamus to enforce public duty; (47 L. 
 R. A. 519) on unconstitutionally of statute as defense against mandamus to 
 compel enforcement; (20 L.R.A. (N.S.) 802) on mandamus to compel public offi- 
 cer or board to perform contractual duty. 
 Injunction against state officers. 
 
 Cited in Butler v. Ellerbe, 44 S. C. 268, 22 S. E. 465, holding writ not 
 available to prevent payment of appropriation upon liability which state would 
 be estopped to deny. 
 Validity of township bonds issned in aid of railroad. 
 
 Cited in Congaree Constr. Co. v. Columbia Twp. 49 S. C. 542, 27 S. E. 
 570, holding act authorizing county to subscribe for railroad stock invalid; 
 Folsom v. Township Ninety Six, 159 U. S. 624, 40 L. ed. 282, 16 Sup. Ct. Rep. 
 174, and Darlington v. Atlantic Trust Co. 16 C. C. A. 34, 25 U. S. App. 354, 
 68 Fed. 855, holding such bonds to be tax for "corporate purpose" within Con- 
 stitution of South Carolina; Holstein v. Edgen'eld County, 64 S. C. 382, 42 S. 
 E. 180, holding that state court adjudging statute relating to issue of bonds void 
 will enforce subsequent decision of United States circuit court upholding act; Ex 
 parte Folsom, 131 Fed. 498, holding unconstitutional amendment of state consti- 
 tution passed for purpose of impairing payment of railroad aid bonds. 
 
 Cited in footnote to Rathbone v. Hopper, 34 L. R. A. 674, which author- 
 izes issuance of negotiable bonds by township. 
 
 Cited in note (14 L. R. A. 479) on validity of taxes in aid of railroads. 
 Validating: township bonds in aid of railroad. 
 
 Cited in Granniss v. Cherokee Twp. 47 Fed. 428; Bouknight v. Davis, 33 S. 
 C. 413, 12 S. E. 96; State ex rel. Dickinson v. Neely, 30 S. C. 602, 9 S. E. 664, 
 holding act providing for payment of township bonds in aid of railroad, not 
 validating act, but valid as imposing tax on property of township in aid of 
 railroad; Gorham v. Broad River Twp. 109 Fed. 774, holding act valid as with- 
 in taxing power of state in aid of public highways; Massachusetts & S. Constr. 
 Co. v. Cherokee Twp. 42 Fed. 752, holding that under such act railroad may 
 enforce delivery of bonds on completion of road through township, by action 
 for specific performance; Smith v. Walker, 74 S. C. 526, 54 S. E. 779, holding act 
 authorizing board of county commissioners to adjust bonded indebtedness of 
 township contracted in aid of railroads, constitutional. 
 
 Cited in note (27 L. R. A. 696) on statutes legalizing invalid municipal con- 
 tracts. 
 
581 L. K. A. CASES AS AUTHORITIES. [3 L.R.A. 781 
 
 Effect of act repealing charter of corporation. 
 
 Cited in State v. Tort R. & A. R. Co. 45 S. C. 451, 23 S. E. 363 (dissenting 
 opinion), majority holding that act does not operate to abate pending suit for 
 forfeiture of charters. 
 Validity of curative act. 
 
 Cited in Hodge v. School Dist. 80 S. C. 520, 61 S. E. 1009, holding curative 
 act valid, although retroactive, where legislature might originally have author- 
 ized it; Heacock v. Sullivan, 70 Kan. 754, 79 Pac. 659, holding legislature can- 
 not render valid unconstitutional act by curative act. 
 Constitutionality of taxation. 
 
 Cited in Murph v. Landrum, 76 S. C. 30, 56 S. E. 850, holding constitutional 
 act levying tax on counties voting out dispensary, for purpose of enforcing~~dis- 
 pensary law. 
 
 3 L. R. A. 781, BURKETT v. BURKETT, 78 Cal. 310, 12 Am. St. Rep. 58, 20 
 
 Pac. 715. 
 Conveyances between husband and wife. 
 
 Cited in Luhrs v. Hancock, 181 U. S. 572, 45 L. ed. 1008, 21 Sup. Ct. Rep. 
 726; Tillaux v. Tillaux, 115 Cal. 672, 47 Pac. 691; Ions v. Harbison, 112 Cal. 
 266, 44 Pac. 572; Oaks v. Oaks, 94 Cal. 68, 29 Pac. 330, holding conveyance 
 from husband to wife vests legal title in latter, subject to homestead rights 
 of husband; Tillaux v. Tillaux, 115 Cal. 671, 47 Pac. 691, holding conveyance 
 not prima facie void on account of marriage relation; Hamilton v. Hubbard, 
 134 Cal. 606, 65 Pac. 321, holding that conveyance by husband to wife, of his 
 own or community property, unless contrary intent appears, vests title in wife 
 as her separate property; Re Lamb, 95 Cal. 406, 30 Pac. 568, holding such 
 conveyance does not constitute abandonment of homestead; Re Winslow, 121 
 Cal. 95, 53 Pac. 362, holding separation agreement between husband and wife, 
 providing for equal division of all property, including homestead, operates as 
 abandonment of homestead; Alferitz v. Arrivillaga, 143 Cal. 649, 77 Pac. 657, 
 and Taylor v. Opperman, 79 Cal. 471, 21 Pac. 869, holding husband's deed of 
 community property to wife superior to subsequent deed to third person ; 
 Gleason v. Spray, 81 Cal. 219, 15 Am. St. Rep. 47, 22 Pac. 551, holding hus- 
 band's deed after homestead declaration void; Carter v. McQuade, 83 Cal. 278, 
 23 Pac. 348, holding husband's creditor with notice of transfer to wife, without 
 rights as against property given wife under separation agreement; Porter v. 
 Bucher, 98 Cal. 461, 33 Pac. 335, holding sale of hay not void for lack of 
 delivery, when stack on homestead land; Beedy v. Finney, 118 Iowa, 280, 91 N. 
 W. 1069, holding that husband and wife need not unite in deed of homestead 
 by husband to wife; Turner v. Bernheimer, 95 Ala. 245, 36 Am. St. Rep. 207, 10 
 So. 750, holding conveyance from husband to wife conveys legal title to her sub- 
 ject to all pre-existing homestead rights; Murphy v. Farquhar, 39 Fla. 358, 22 So. 
 681, holding attempted transfer of legal title by husband to wife does not give 
 to judgment against him any other or further lien or right in or to homestead 
 than it had before, if right to exemption be not otherwise forfeited; Loomis v. 
 Loomis, 148 Cal. 152, 1 L.R.A.(N.S.) 314, 82 Pac. 679, holding conveyance of 
 homestead by husband to wife conveys nothing, and does not affect right of sur- 
 vivorship of wife : Luhrs v. Hancock, 6 Ariz. 344, 57 Pac. 605, holding valid a 
 conveyance of homestead from husband to wife without latter joining in deed. 
 
 Cited in notes ( 10 L. R. A. 221 ) on husband's conveyance of homes'tead to 
 wife; (6 L.R.A. 559) on contracts between husband and wife; (69 L.R.A. 379) 
 on effect of conveyance by husband to wife; (126 Am. St. Rep. 107) on effect of 
 deed of community property by husband to wife. 
 
3 L.R.A. 781] L. R. A. CASES AS AUTHORITIES. 582 
 
 Distinguished in Freiermuth v. Steigleman, 130 Cal. 393, 80 Am. St. Rep. 
 138, 62 Pac. 615, holding mortgage ef homestead by wife to husband to se- 
 cure indebtedness invalid. 
 Effect of divorce upon homestead riulit. 
 
 Cited in Huellmantel v. Huellmantel, 124 Cal. 588, 57 Pac. 582, holding that 
 decree of divorce giving wife permanent alimony in lieu of homestead right 
 leaves title to homestead in husband, freed from homestead rights; Arp v. 
 Jacobs, 3 Wyo. 496, 27 Pac. 800, holding divorce terminates all interest in home- 
 stead by right of survivorship; Arp v. Jacobs, 3 Wyo. 496, 27 Pac. 800, holding 
 decree of divorce destroys right of survivorship to homestead. 
 
 Cited in notes (23 L. R. A. 240) on effect of divorce on homestead rights; (39 
 L.R.A. (X.S.) 198) on applicability of statutory provision for restoration of 
 property on divorce, to voluntary gifts or conveyances. 
 Moftgragre of homestead to third party. 
 
 Cited in Hart v. Church, 126 Cal. 476, 77 Am. St. Rep. 195, 58 Pac. 910, hold- 
 ing valid mortgage upon homestead can be made only by joint and concurrent 
 execution of conveyance by husband and wife; Cordano v. Wright, 159 Cal. 619, 
 115 Pac. 227, holding same; California Fruit Transf. Co. v. Anderson, 79 Fed. 
 406, holding mortgage by wife of homestead to secure antecedent debt of hus- 
 band not binding on her. 
 
 Cited in footnote to Wallace v. Travelers' Ins. Co. 26 L. R. A. 806, which 
 holds recorded power of attorney to husband insufficient showing of consent 
 to mortgage of homestead. 
 
 Cited in notes (12 Am. St. Rep. 684, 686; 95 Am. St. Rep. 924, 925) on effect 
 of conveyance or encumbrance of homestead by one spouse only. 
 
 Interest of spouse in homestead selected by other from separate prop- 
 erty. 
 
 Cited in Rosenberg Bros. & Co. v. Ross, 6 Cal. App. 759, 93 Pac. 284, holding 
 on selection of homestead by wife she and her husband become vested with joint 
 title therein. 
 
 3 L. R. A. 784, DUCHEMIN v. KENDALL. 149 Mass. 171, 21 N. E. 242. 
 Executory contracts for sale of stock. 
 
 Cited in Guilford v. Mason, 22 R. 1. 427, 48 Atl. 386, holding actual tender 
 not necessary to preserve rights under option contract to sell stock. 
 Cited in note (5 L. R. A- 202) on contracts for future delivery. 
 
 3 L. R. A. 785, BARNES v. BOARDMAN, 149 Mass. 106, 21 X. E. 308. 
 
 Other actions for partition, in Barnes v. Lynch, 151 Mass. 511, 21 Am. St. Rep. 
 470, 24 N. E. 783, and Barnes v. Boardman, 157 Mass. 481, 32 N. E. 070. 
 Mortn'nsre collateral to debt. 
 
 Cited in Com. v. Globe Investment Co. 168 Mass. 81, 40 X. E. 410, holding 
 legal holder of mortgage notes entitled to assignment of mortgage; Five v. Ber- 
 ry, 181 Mass. 443, 63 N. E. 1071, holding payment of debt discharges mortgage. 
 'Tax sale. 
 
 Cited in Land & River Improv. Co. v. Bardon, 45 Fed. 709. upholding as- 
 sessment and sale of quarter section owned by one person as one tract ; Bren- 
 tano v. Brentano, 41 Or. 19. (57 Pat-. 922. holding tax sale of separate tracts for 
 lump sum void; Sheafer v. Mitchell. 109 Tenn. 183, 71 S. W. 8(3, sustaining tax 
 deed executed by sheriff's successor thirteen years after sale; Charland v. Home 
 for Aged Women, 204 Mass. 567. 134 Am. St. Rep. 696, 91 N. E. 146. holding tax 
 deed void which does not contain statements prescribed by statute; North Real 
 
583 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 789 
 
 Estate Loan & T. Co. v. Billings Loan & T. Co. 36 Mont. 366, 93 Pac. 40, holding 
 sale of several disconnected town lots, which are assessed together and sold ec 
 masse, void. 
 
 Disapproved in Shelton v. Franklin. 224 Mo. 360, 123 S. W. 1084, holding tax 
 deed to more than the statutory forty acres was not presumptively a sale in 
 solido of more than the law allowed. 
 Laches. 
 
 Cited in Haven v. Haven, 181 Mass. 579, 64 N. E. 410, holding delay in assert- 
 ing rights, not operating to prejudice of opposite party, not laches. 
 Validity of conveyance by tenant in common as against co-tenant. 
 
 Cited in Benjamin v. American Teleph. & Teleg. Co. 196 Mass. 456, 82 N. E. 
 1581, 13 A. & E. Ann. Gas. 306, holding conveyance by metes and bounds by ten- 
 ant in common voidable as against cotenant. 
 
 3 L. R. A. 789, HUYCK v. ANDREWS, 113 N. Y. 81, 10 Am. St. Rep. 432, 20 
 
 N. E. 581. 
 What deemed encumbrance. 
 
 Cited in Nathan v. Morris, 62 Hun, 454, 17 N. Y. Supp. 13, holding restric- 
 tion against building on 10 feet of frontage an encumbrance; Kountze v. Hel- 
 j.iiith. 67 Hun, 347, 22 N. Y. Supp. 204. holding agreement by landowners re- 
 stricting character and location of buildings, running with land, creates recip- 
 rocal easements; Los Angeles Terminal Land Co. v. Muir, 136 Gal. 48, 68 Pac. 
 3-27. holding restriction in use of premises by grantee, not purporting to be for 
 benefit of adjoining estate, no easement; Eller v. Moore, 48 App. Div. 405, 63 
 N. V. Supp. 88, holding existence and assertion of right to use private road, 
 breach of covenant for quiet enjoyment; Copeland v. McAdory, 100 Ala. 557, 13 
 So. 545, holding public highway within covenant against encumbrances; Clark 
 v. Mossniun, 58 Neb. 93, 78 N. \V. 399, holding public highway not a breach 
 of covenant against encumbrances: Milot v. Reed, 11 Mont. 571, 29 Pac. 343, 
 holding taxes lawfully levied within covenant of warranty; Archer v. Archer, 
 84 Hun, 299, 32 N. Y. Supp. 410, holding natural stream not an easement; 
 Treadwell v. Inslee, 120 N. Y. 465, 24 N. E. 651, holding drain from grantor's 
 lands, right to which not reserved in deed of grantee's lot, not easement; Uih- 
 lein v. Matthews, 172 N. Y. 158, 64 N. E. 792, holding agreement not to use 
 ljuilding for saloon an encumbrance; Denman v. Mentz, 63 N. J. Eq. 616, 52 
 Atl. 1117, holding easement for light an encumbrance; Remsen v. Wingert, 112 
 App. Div. 238. 98 N. Y. Supp. 388, holding right to adjoining owner of keeping 
 windows forever open in house on adjoining lot, incumbrance; Kidder v. Childs, 
 130 App. Div. 262, 114 N. Y. Supp. 561 (dissenting opinion), on public high- 
 way as constituting incumbrance; Schurger v. Moorman, 20 Idaho, 107, 36 
 L.R.A. (N.S.) 320, 117 Pac. 122, holding that easement for maintenance of irri- 
 gation canal is not breach of covenant against incumbrances; Re Bensel, 140 App. 
 Div. 262, 125 N. Y. Supp. 128, holding that right of way is encumbrance; 
 Stuhr v. Butterfield, 151 Iowa, 745, 36 L.R.A. (N.S.) 325, 130 N. W. 897 (dis- 
 senting opinion), on drainage ditch as incumbrance. 
 
 Cited in notes (8 L. R. A. 617) on easement denned; (6 L. R. A. 107) on 
 covenants denned and construed. 
 
 Limited in Hymes v. Estey. 116 N. Y. 505. 15 Am. St. Rep. 421, 22 N. E. 1087, 
 holding public highway, of which there was no indication or notice, breach of 
 warranty. 
 Breach of covenant. 
 
 Cited in Pabst Brewing Co. v. Thorley, 76 C. C. A. 87, 145 Fed. 120, holding 
 
3 L.R.A. 789] L. R. A. CASES AS AUTHORITIES. 684 
 
 covenant for quiet possession broken where city which has given license to main- 
 tain vault under street revokes license after lease by licensee. 
 
 Cited in note (36 L.R.A.(X.S.) 314, 315) on existence of water right on land: 
 at time of conveyance as breach of covenants. 
 Damages for breach of covenant. 
 
 Cited in Brown v. Allen, 73 Hun, 295, 26 N. Y. Supp. 299, holding that 
 damages recoverable by purchaser who has removed timber, for breach of war- 
 ranty, bear same ratio to purchase price as value at time of eviction bore to. 
 value with timber; Humes v. Esty, 133 N. Y. 346, 31 N. E. 105, holding dam- 
 ages for eviction comprise depreciation in value by enforcement of easement, 
 with interest and costs of eviction action; Utica, C. & S. Valley R. Co. v. Gates,. 
 8 App. Div. 183, 40 N. Y. Supp. 316, Affirming 21 Misc. 209, 47 N. Y. Supp. 
 231, holding amount of encumbrances paid, not exceeding value of premises 
 when conveyed, recoverable upon covenant against encumbrances; De Long v. 
 Spring Lake & S. G. Co. 65 N. J. L. 7, 47 Atl. 491, holding measure of dam- 
 ages for breach of covenant against encumbrances amounting to failure of 
 title, consideration with interest; Herb v. Metropolitan Hospital, 80 App. Div. 
 150, 80 N. Y. Supp. 552, holding difference between value before and after 
 erection of wall measure of damages for breach of covenant. 
 Covenantee's knowledge of encumbrance. 
 
 Cited in Ladue v. Cooper, 32 Misc. 547, 67 N. Y. Supp. 319, and Eller v. 
 Moore, 48 App. Div. 406, 63 N. Y. Supp. 88, holding knowledge of existence 
 of easement no defense to action upon covenant against encumbrances: Xathan 
 v. Morris, 62 Hun, 456, 17 N. Y. Supp. 13, holding purchaser knowing of en- 
 cumbrance when contract signed may refuse to complete sale; Burr v. Lamas- 
 ter, 30 Xeb. 698, 9 L. R. A. 640, 27 Am. St. Rep. 428, 46 N. W. 1015, holding 
 covenant against encumbrances covers those known and unknown to purchaser: 
 Docter v. Darling, 68 Hun, 73, 22 N. Y. Supp. 594, holding oral evidence in- 
 admissible to show purchaser's knowledge of encumbrance; Pryor v. Buffalo. 19r 
 X. Y. 137, 90 X. E. 423, holding knowledge of occupancy of portion of premises- 
 by railroad does not defeat right of grantee to rely on covenant of title in grant- 
 or; Goodman v. Heilig, 157 X. C. 8, 36 L.R.A.(X.S.) 1006, 72 S. E. 806, hold- 
 ing that railroad right of way is not breach of covenant, as purchaser is pre- 
 sumed to have knowledge thereof; Smith v. Ward, 66 W. Va. 194, 33 L.R.A.. 
 (X.S.) 1032, 66 S. E. 234, holding that knowledge by grantee by warranty deecE 
 of superior claim to part of land will not bar him from compensation for such. 
 part. 
 
 Cited in note (4 L.R.A. (X.S.) 315, 316) on effect of purchaser's knowledge 
 of encumbrance in action for breach of covenant. 
 
 Distinguished in Charman v. Hibbler, 31 App. Div. 480, 52 X. Y. Supp. 212. 
 holding proof of grantee's knowledge of restrictions upon use of premises com- 
 petent in mitigation of damages. 
 "Interest In land." 
 
 Cited in Oates v. Headland, 154 Ala. 505, 45 So. 910, holding right to easement 
 is interest in land. 
 Creation of easements appurtenant. 
 
 Cited in^Ruhnke v. Aubert, 58 Or. 10, 113 Pac. 38, holding that right reserved 
 in deed to take water from ditch is easement appurtenant to land. 
 
 Cited in note (136 Am. St. Rep. 682) on creation and conveyance of easements- 
 appurtenant. 
 "\Vhnt covenants run with land. 
 
 Cited in note (82 Am. St. Rep. 668) on what covenants run with the land. 
 
585 , L. K. A. CASES AS AUTHORITIES. [3 L.R.A. 796 
 
 3 L. R. A. 795, JOHNSON v. GR1SARD, 51 Ark. 410, 11 S. W. 58f>. 
 
 Chattel unirl ii.'ii; i-. 
 
 Cited in notes (6 L. R. A. 643) on right to show that absolute sale is a 
 mortgage; (10 L. R. A. 491) on mortgage on implanted crops; (6 L. R. A. 
 618) on right to growing crops; (5 Eng. Rul. Cas. 137, 139) on validity of mort- 
 gage of future crops. 
 Sufficiency of description. 
 
 Cited in Henderson v. Gates, 52 Ark. 373, 12 S. W. 780, holding "my entire 
 crops of cotton and corn, to be raised the present year," sufficient; Lightle v. 
 Castleman, 52 Ark. 279, 12 S. W. 564, holding "black mare, six years old, in 
 mortgagor's possession," sufficient; Harkey v. Jones, 54 Ark. 159, 15 S. W. 192, 
 holding "brindle cow, three years old," sufficient, though mortgagor has two 
 such; Alferitz v. Ingalls, 83 Fed. 968, holding "8,000 sheep, and increase 
 thereof, now in county of M.," sufficient; Hughes v. Abston, 105 Tenn. 73, 58 
 S. W. 296, holding "my entire interest in crop of corn," etc., "to be grown by 
 me this present year" sufficient in Arkansas; Cragin v. Dickey, 113 Ala. 313, 
 21 So. 55, holding mortgage of 300 sheep in W. county, earmarked in manner 
 described, branded "D," valid between parties, though all not branded; Sho- 
 maker v. Waters, 56 Fla. 561, 47 So. 936, holding sufficient a description of "all 
 cotton, corn and other products grown or produced" upon mortgagor's farm in 
 given year, where county is shown 'and mortgagor owns but one farm ; First Nat. 
 Bank v. Rogers, 24 Okla. 363, 103 Pac. 582, holding sufficient description as fol- 
 lows; "product and proceeds of all my 1907 cotton and all my future crops un- 
 til note is paid. 
 
 Cited in footnote to Turpin v. Cunningham, 51 L. R. A. 800, which holds 
 mortgagee's rights not affected as against subsequent purchaser by change in 
 color of mortgaged norse after mortgage given. 
 
 Cited in note (23 L. R. A. 459) on sufficiency of description in sale or mort- 
 gage of future crops. 
 
 3 L. R. A. 796, MINNEAPOLIS THRESHING MACH. CO. v. DAVIS, 40 Minn. 
 
 110, 12 Am. St. Rep. 701, 41 N. W. 1026. 
 Subscriptions for stock in proposed corporation. 
 
 Cited in Badger Paper Co. v. Rose, 95 Wis. 151, 37 L. R. A. 165, 70 N. W. 
 302, holding agreement to take stock in corporation to be formed does not 
 constitute signer stockholder until accepted by corporation; Balfour v. Baker 
 City Gas Co. 27 Or. 306, 41 Pac. 164, holding formation of corporation con- 
 stitutes stock subscriber stockholder; Cravens v. Eagle Cotton Mills Co. 120 
 Ind. 14, 21 N. E. 981, holding conditional stock subscription becomes absolute 
 upon obtaining required amount of subscriptions; Chicago Bldg. & Mfg. Co. v. 
 Lyou, 10 Okla. 706, 64 Pac. 6, holding subscription to stock of proposed cor- 
 poration irrevocable; Nebraska Chicory Co. v. Lednicky, 79 Neb. 594, 113 N. W. 
 245, holding the subscription is in the nature of a continuing offer to the pro- 
 posed corporation which upon acceptance constitutes a contractual relation; 
 Garrett v. Philadelphia Lawn Mower Co. 39 Pa. Super. Ct. 82, holding that agree- 
 ment by subscribers that they will offer their stock to each other before selling 
 it is enforceable against their executors; Steely v. Texas Improv. Co. 55 Tex. Civ. 
 App. 472, 119 S. W. 319, holding that subscriber cannot withdraw his subscrip- 
 tion without unanimous consent of other subscribers; Greenbriar Industrial Ex- 
 position v. Squires, 40 W. Va. 312, 52 Am. St. Rep. 884, 21 S. E. 1015, holding 
 'where one takes part in the meeting of stockholders and votes as a stockholder 
 ior directors he cannot avoid an assessment on his stock though there is a de- 
 parture from the original plan of incorporation. 
 
3 L.R.A. 796] L. R. A. CASES AS AUTHORITIES. 586 
 
 Cited in footnote to Elyton Land Co. v. Birmingham Warehouse & Elevator 
 Co. 12 L. R. A. 307, which holds subscribers liable to creditors where stock paid 
 for by conveyance of land worth only amount assumed by corporation. 
 
 Cited in notes (33 L.R.A. 596) on withdrawal of subscription for shares of 
 corporation; (16 Am. St. Rep. 307) on subscription to stock in proposed corpo- 
 ration; (33 Am. St. Rep. 247) on subscription prior to organization of corpora- 
 tion; (136 Am. St. Rep. 739, 745), on nature and validity of subscription agree- 
 ment to corporate stock. 
 
 Distinguished in Northwestern Creamery Co. v. Lanning, 83 Minn. 20, 85 N, 
 W. 823, holding note given in consideration of establishment of milk-skimming 
 station and issuance of stock not subscription; Crow River Valley Creamery Co. 
 v. Strande, 104 Minn. 48, 115 N. W. 1038, holding where subscribers mutually 
 agree to pay loan to corporation being formed, which its directors were author- 
 ized to make, the corporation may sue a subscriber for his liability thereon. 
 Parol evidence of collateral agreement. 
 
 Cited in Newland Hotel Co. v. Wright, 73 Mo. App. 243, holding agree- 
 ment to accept payment of stock subscription in property not provable by 
 parol ; Ollesheimer v. Thompson Mfg. Co. 44 Mo. App. 182, holding liability of 
 subscriber as stockholder not affected by extrinsic agreement with promoter, 
 not amounting to fraudulent representations; Walter A. Wood Harvester Co. 
 v. Jefferson, 71 Minn. 370, 74 N. \Y. 149, holding evidence of false representa- 
 tions immaterial in action on stock subscription; Smith v. Mussetter, 58 Minn. 
 162, 59 N. W. 995, holding parol evidence admissible to show that delivery of 
 note conditional; Newland Hotel Co. v. Wright, 73 Mo. App. 243, holding a 
 subscription to stock cannot be varied by parol evidence showing a contempo- 
 raneous agreement; Mendenhall v. Ulrich, 94 Minn. 102, 101 N. \Y. 1057, 
 holding parol evidence is admissible to show that a written contract was intend- 
 ed to be operative only on the happening of some future event; Graham v. Sav- 
 age, 110 Minn. 513, 126 N". W. 394, holding inadmissible, parol evidence that, 
 real agreement was taking of subscriptions to stock instead of written agree- 
 ment to sell stock. 
 
 Cited in footnote to Baer's Appeal, 4 L. R. A. 609, which holds inadmissible 
 oral evidence of contemporaneous agreement for withdrawal of money at any 
 time. 
 
 Cited in notes (4 L. R. A. 609, 17 L. R. A. 271) on parol evidence to vary, add 
 to, or alter written contract; (6 L. R. A. 36) on parol evidence of prior or con- 
 temporaneous agreement to contradict or vary contract; (13 L. R. A. 622) on 
 parol evidence to vary terms of trust. 
 
 Distinguished in Northwestern Creamery Co. v. Lanning, 83 Minn. 20, 85 N. 
 W. 823, holding parol testimony is admissible to show failure of consideration, 
 for a written promise made by a subscriber to stock. 
 
 3 L. R. A. 801, FINLAYSON v. FINLAYSON, 17 Or. 347, 11 Am. St. Rep. 8Sfi,. 
 
 21 Pac. 57. 
 Equitable lien. 
 
 Cited in Stramann v. Scheeren, 7 Colo. App. 15, 42 Pac. 191, holding wife ha? 
 equitable lien on property improved with her money. 
 Fraudulent representations. 
 
 Cited in Evans v. Evans, 118 Ga. 894, 98 Am. St. Rep. 180, 45 S. E. 612. 
 holding inducement by wife of gift of real estate from husband, after she had 
 been guilty of adultery, or in contemplation thereof, such fraud on husband as 
 to entitle him to revocation on discovery of her conduct. 
 
 Cited in notes (11 L. R. A. 198) on fraudulent representations as ground 
 
587 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 808 
 
 of rescission; (6 L. R. A. 219) on false representations inducing entry into con- 
 tract; (10 L.R.A. 606) on proof of fraud must l -e clear and strong; (69 L.R.A. 
 360) on fraud in conveyance by husband to wife; (13 Am. St. Rep. 431) on 
 what representations are fraudulent; (65 Am. St. Rep. 507) on reformation of 
 contracts for fraud; (1 Am. St. Rep. 193) on improvements on property of wife 
 by husband; (12 Eng. Rul. Gas. 295) on what constitutes fraud and liability 
 therefor. 
 Parol evidence varying: written Instrument. 
 
 Cited in Staub v. Hampton, 117 Tenn. 726, 101 S. W. 776, holding parol evi- 
 dence admissible to identify land described. 
 
 Cited in notes (6 L. R. A. 45) on limits and exceptions to rule as to parol 
 evidence; (17 L. R. A. 272) on exceptions to rule against admission of parol evi- 
 dence; (5 L. R. A. 596) on oral evidence as consideration in sealed instrument; 
 (20 L. R. A. 108) on parol evidence as to consideration of deed; (3 L. R. A. 
 849) on parol evidence of patent and latent ambiguities in will; (28 L.R.A. 
 ( X.S. ) 877, 879) on statute of frauds as affecting parol variation of instrument; 
 (15 Am. St. Rep. 715; 11 Eng. Rul. Cas. 231) on parol evidence to contradict 
 written instrument; (24 Am. St. Rep. 714) on parol evidence as to deeds; (14 
 Eng. Rul. Cas. 754) on parol evidence as to consideration of deed. 
 Implied trust from donor's expectation to share in gitt. 
 
 Cited in note (24 L.R.A. (N.S.) 1043) on donor's expectation that donee will 
 allow him to share in benefit of property, as raising implied trust. 
 
 3 L. R. A. 808, RICHMOND & D. R. CO. v. CHILDRESS, 82 Ga. 719, 14 Am. St. 
 
 Rep. 189, 9 S. E. 602. 
 lliiilit to physical examination. 
 
 Cited in Gray v. State. 55 Tex. Crim. Rep. Ill, 22 L.R.A. (N.S.) 525, 114 S. 
 W. 635, holding accused in homicide case has right to have autopsy on body of 
 decedent to show character of wounds; Mutual L. Ins. Co. v. Griesa, 156 Fed. 
 402, holding court of equity has power to order exhumation of body in action 
 on life insurance policy where one defense is suicide by poison. 
 
 Cited in note (2 L.R.A. (N.S.) 387) on waiver of right to object to physical 
 examination or exhibition of person. 
 In action for personal injuries. 
 
 Cited in Alabama G. S. R. Co. v. Hill. 90 Ala. 77, 9 L. R. A. 444, 24 Am. St. 
 Rep. 764, 8 So. 90, holding abuse of discretionary power of trial court to order 
 physical examination ground for reversal: South Bend v. Turner, 156 Ind. 426, 
 54 L. R. A. 400, 83 Am. St. Rep. 200, 60 N. E. 271, holding refusal to order physi- 
 cal examination unattended by pain or danger reversible error; Hall v. Manson, 
 99 Iowa, 712, 34 L. R. A. 213, 68 N. W. 922, holding refusal to order measure- 
 ment of injured foot before jury, evidence being contradictory and witness not 
 objecting, error; Austin & X. W. R. Co. v. Cluck, 97 Tex. 176, 64 L. R. A. 496, 
 104 Am. St. Rep. 863. 77 S. W. 403, 1 Ann. Cas. 261, holding that plaintiff in 
 action tor personal injuries may be compelled to testify whether or not he refused 
 to submit to physical examination. 
 
 Cited in footnotes to Alabama G. S. R. Co. v. Hill, 9 L. R. A. 442, which holds 
 delicacy and refinement of feeling not ground for refusing to order surgical ex- 
 amination of plaintiff: Anonymous. 7 L. R. A. 425, which authorizes personal 
 examination of parties to suit for divorce on ground of malformation. 
 
 Cited in notes (14 L. R. A. 467) on power to compel plaintiff to submit to 
 physical examination; (9 L. R. A. 323) on right to compel party to furnish evi- 
 .iLfuinst himself. 
 
3 L.R.A. 808] L. R. A. CASES AS AUTHORITIES. 588 
 
 Distinguished in Bagwell v. Atlanta Consol. Street R. Co. 109 Ga. 612, 47 
 L. R. A. 487, 34 S. E. 1018, holding daughter's refusal to submit to physical 
 examination after attaining majority does not defeat father's action for loss of 
 services. 
 Power of court to order. 
 
 Cited in Lane v. Spokane Falls & X. R. Co. 21 Wash. 120, 46 L. R. A. 154, 
 158, 75 Am. St. Rep. 821, 57 Pac. 367; Ottawa v. Gilliland, 63 Kan. 172, 88 Am. 
 St. Rep. 232, 65 Pac. 252 ; O'Brien v. La Crosse, 99 Wis. 425, 40 L. R. A. 833, 75 
 N. W. 81; Savannah, F. & W. R. Co. v. Wainwright, 99 Ga. 255, 25 S. E. 622, 
 holding physical examination pending trial, within judge's discretion; Graves v. 
 Battle Creek, 95 Mich. 270, 19 L. R. A. 642, 35 Am. St. Rep. 561, 54 N. W. 757, 
 holding court may order exhibition of injured arm to physician, in jury's pres- 
 ence; Johnston v. Southern P. Co. 150 Cal. 542, 89 Pac. 348, 11 A. & E. Ann. Cas. 
 841, holding court can order physical examination by doctor of defendant where 
 plaintiff calls doctor to testify in her behalf; Brown v. Chicago, M. & St. P. R. 
 Co. 12 N. D. 68, 102 Am. St. Rep. 564, 95 N. W. 153, holding court has power 
 to order physical examination of female plaintiff; Macon R. & Light Co. v. Vin- 
 ing, 120 Ga. 514, 48 S. E. 232; Cedartown v. Brooks, 2 Ga. App. 590, 59 S. E. 
 836; Murphy v. Southern P. Co. 31 Xev. 141, 101 Pac. 322, 21 Ann. Cas. 502; 
 Western Glass Mfg. Co. v. Schoeninger, 42 Colo. 362, 15 L.R.A.(N.S.) 668, 126 
 Am. St. Rep. 165, 94 Pac. 342, holding it within discretion of trial court to 
 order examination; Macon & B. R. Co. v. Ross, 133 Ga. 83, 65 S. E. 146, hold- 
 ing court has power, in its discretion, to compel physical examination: Atlantic 
 Coast Line R. Co. v. Dees, 56 Fla. 135, 48 So. 28, holding, under statute, it is 
 within discretion of trial court to compel physical examination; Best v. Co- 
 lumbia Street R. Light & P. Co. 85 S. C. 429, 67 S. E. 1 (dissenting opinion), 
 on power of circuit court to require plaintiff in personal injury action to sub- 
 mit to physical examination by defendant's physicians, or those appointed by 
 court. 
 
 Cited in notes (15 L.R.A. (N.S. ) 667) on refusal of order for physical exam- 
 ination as abuse of discretion; (68 Am. St. Rep. 244, 247, 248, 249) on physical 
 examination of parties by order of court. 
 
 Distinguished in Austin & N. W. R. Co. v. Cluck, 97 Tex. 176, 64 L.R.A. 494, 
 104 Am. St. Rep. 863, 77 S. W. 403, 1 A. & E. Ann. Cas. 261, holding in absence 
 of statute authorizing it, court cannot compel physical examination. 
 
 Not followed in Union P. R. Co. v. Botsford, 141 U. S. 255, 35 L. ed. 739, 11 
 Sup. Ct. Rep. 1000, denying power of United States court to order physical ex- 
 amination before trial. 
 
 Disapproved in May v. Northern R. R. Co. 32 Mont. 527, 70 L.R.A. 113, 81 
 Pac. 328, 4 A. & E. Ann. Cas. 605, holding court cannot compel physical exami- 
 nation. 
 Discretionary power of courts. 
 
 Cited in Western & A. R. Co. v. Denmead, 83 Ga. 356, 9 S. E. 683, holding court 
 may, upon sufficient reasons, compel presence of female witness in court. 
 
 Cited in note (41 Am. St. Rep. 394) on power to compel party to produce boxes 
 and papers as evidence on examination of adversary. 
 
 3 L. R. A. 809, STRATTON v. CURRIER, 81 Me. 497, 17 Atl. 579. 
 Floatable streams. 
 
 Cited in People ex rel. Deneen v. Economy Light & P. Co. 241 111. 326, 89 X. E. 
 760, holding navigability of stream determined with reference to natural condi- 
 tion. 
 
589 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 822 
 
 Cited in note (22 L.R.A. (X.S.) 547, on rights and duties between those main- 
 taining dam and those using floatable stream. 
 It h-.li !-. of log: owners. 
 
 Cited in Mullen v. Penobscot Log-Driving Co. 90 Me. 569, 38 Atl. 557, holding 
 log owner has, at common law, right to only natural flow. 
 
 Cited in notes (41 L. R. A. 377) on right to use stream for floating logs; 
 (5 L. R. A. 393) on obstruction of navigable stream. 
 
 3 L. R. A. 812, MEREDITH v. SCALLION, 51 Ark. 361, 11 S. W. 516. 
 Execution sale unaffected by irregularity of process. 
 
 Cited in Stotts v. Brookfield, 55 Ark. 310, 18 S. W. 179, holding title of pur- 
 chaser upon execution not impaired by irregularity in issuance. 
 
 Cited in note (21 L. R. A. 43) on how far purchaser at execution or judicial 
 sale protected as bona fide purchaser. 
 Juristliction of probate court. 
 
 Cited in Hampton v. Cook, 64 Ark. 355, 62 Am. Ut. Rep. 194, 42 S. W. 535, 
 holding payment of judgment recovered in decedent's lifetime enforceable only in 
 probate court; Brown v. Xelms, 86 Ark. 390, 112 S. W. 373, holding probate court 
 has exclusive jurisdiction to enforce claims against estate. 
 
 Cited in footnote to Re Andrews, 17 L. R. A. 297, which holds jurisdiction of 
 court to elect for mentally incompetent widow to take against husband's will, not 
 abrogated by statute. 
 
 3 L. R. A. 816, PENNINGTON v. PENNINGTON, 70 Md. 418, 17 Atl. 329. 
 
 Construction of conditions in wills. 
 
 Cited in Wahl v. Brewer, 80 Md. 243, 30 Atl. 654, holding question whether 
 remainders are vested will not be determined during life of life tenant; Ellicott v. 
 Ellicott, 90 Md. 331, 48 L. R. A. 63, 45 Atl. 183, and Re Stickney, 85 Md. 103, 
 35 L. R. A. 696, 60 Am. St. Rep. 308, 36 Atl. 654, holding courts averse to con- 
 struing conditions to be precedent so as to defeat vesting of estate; Ege v. Hering, 
 108 Md. 416, 70 Atl. 221, holding on devise on certain condition or if devisee 
 declined to accept to another on same condition, and if neither accepted, then 
 property to be sold, gifts are preceding limitations and not conditions precedent, 
 and failure to take effect did not render inoperative provisions to sell. 
 
 Cited in footnotes to. Green v. Grant, 18 L. R. A. 381, which holds woman's 
 issue without vested interest in land devised to her for life, with direction to 
 convey to such issue as she shall appoint; Hertz v. Abrahams, 50 L. R. A. 361, 
 which holds estate tail created by devise to woman for separate use, with re- 
 mainder to another if she "has no issue"; Gannon v. Albright, 67 L.R.A. 97, which 
 holds devise to designated persons and "their heirs and assigns forever," not cut 
 down to fee tail by subsequent declaration that the share of one dying without 
 issue should go over to others. 
 
 Cited in notes (9 L. R. A. 211) on vested and contingent remainders distin- 
 guished; (9 L. R, A. 214) on vested remainders; (9 L. R. A. 215) on con- 
 tingent remainders: (29 L.R.A.(N.S-) 1163) on rule in Shelley's case; (10 
 Eng. Rul. C'as. 758) on creation of estate tail by gift to "heirs of the body" fol- 
 lowing gift of same subject to the praepositus. 
 
 3 L. R. A. 822, SMYTHE v. SPRAGUE, 149 Mass. 310, 21 N. E. 383. 
 Validity of unrecorded deeds and conveyances. 
 
 Cited in Anthony v. New York, P. & B. R, Co. 162 Mass. 61, 37 N. E. 780, 
 holding unrecorded lease to plaintiff sufficient title in action for damages to 
 
3 L.R.A. 822] L. R. A. CASES AS AUTHORITIES. 590 
 
 property; Edwards v. Barnes, 167 Mass. 209, 45 N. E. 351, holding land appar- 
 ently, but not actually, OAvned by deceased debtor cannot be taken by nonattach- 
 ment' creditors; Newbert v. Fletcher, 84 Me. 413, 24 Atl. 889, holding assignee has 
 no greater right against mortgagee than his assignor in insolvency could have 
 asserted; Valley Lumber Co. v. Hogan, 85 Wis. 374, 55 N. W. 415, holding gen- 
 eral assignee party to set aside unrecorded conveyance of assignor, although 
 fraudulent as to only part of creditors; Thompson v. Esty, 69 N. H. 76, 45 Atl. 
 566, upholding bona fide sale against assignee in insolvency, although possession 
 -was retained by vendor; Re Loveland, 84 C. C. A. 72, 155 Fed. 841, holding in- 
 crease of mortgage debt valid as against trustee in bankruptcy of mortgagor; 
 Re Merrow, 131 Fed. 9,94, on right of assignee under state insolvency law to 
 property conveyed before assignment. 
 
 Distinguished in Pratt v. Mackey, 172 Mass. 386, 52 N. E. 534, holding mort- 
 gage not recorded within time required by statute void from its inception if 
 avoided by assignee of mortgagor. 
 Bona flle purchaser for value. 
 
 Cited in footnotes to Odom v. Riddick, 7 L. R. A. 118, which holds bona fide 
 purchaser's title not impaired by grantor's undeclared lunacy; Van Raalte v. 
 Harrington, 11 L. R. A. 424, which holds relationship of preferred creditors fact 
 for consideration on question of fraud; Tillman v. Heller, 11 L. R. A. 628, which 
 holds purchaser without notice of seller's fraud, protected only to extent of pay- 
 ment. 
 
 Cited in note (10 L. R. A. 677) on protection of bona fide holder of commercial 
 paper. 
 
 3 L. R. A. 824, FAGUNDES v. CENTRAL P. R. CO. 79 Cal. 97, 21 Pac. 437. 
 Master's liability for incompetency of servant causing- injury. 
 
 Cited in Hardesty v. Largey Lumber Co. 34 Mont. 164, 86 Pac. 29, on rights 
 of injured servant under statute. 
 
 Cited in note (25 L. R. A. 712) on liability of master for injuries caused to 
 servant through incompctency of fellow servant. 
 "Who are fellow servants. 
 
 Cited in Grattis v. Kansas City, P. & G. R. Co. 153 Mo. 406, 48 L. R. A. 408, 
 77 Am. St. Rep. 721, 55 S. W. 108, holding fireman fellow servant of engineer 
 and conductor on same train; Mann v. O'SulIivan, 126 Gal. 65, 77 Am. St. Rep. 
 149, 58 Pac. 375, holding that carpenter employed to repair elevator shaft and 
 operator of elevator are fellow servants engaged "in the same general business;" 
 Congrave v. Southern P. R. Co. 88 Cal. 366, 26 Pac. 175, holding brakeman and 
 conductor on same train fellow servants; Daves v. Southern P. Co. 98 Cal. 23, 
 35 Am. St. Rep. 133, 32 Pac. 708, denying master's liability for section foreman's 
 failure to keep switch open, thereby injuring sectionhand; Stevens v. San Fran- 
 cisco & N. P. R. Co. 100 Cal. 567, 35 Pac. 165, holding fireman and oiler and 
 'engineer of ferryboat fellow servants, though latter has power to hire and dis- 
 charge; Livingston v. Kodiak Packing Co. 103 Cal. 264, 37 Pac. 149, holding mate 
 and servant of steward, fellow servants; Sartin v. Oregon Short Line R. Co. 
 27 Utah, 454, 76 Pac. 219, holding member of railroad fence gang fellow servant 
 of foreman and could not recover for injuries caused by negligence of latter in 
 operation of handcar, Atchison, T. & S. F. R. Co. v. Martin, 7 N. M. 169, 34 
 Pac. 536, holding section hand on handcar going to place of work to repair 
 railway and conductor and engineer of worktrain also engaged in repairing rail- 
 way follow servants; Ell v. Northern P. R. Co. 1 N. D. 349, 12 L.R.A. 101, 26 
 Am. St. Rep. 621, 48 N. W. 222, holding foreman of gang is fellow servant to 
 
591 L. R. A. GASES AS AUTHORITIES. [3 L.R.A. 820 
 
 'Member where his negligent act causing injury is one which pertains to duties of 
 mere servant, engaged in same general business. 
 
 Cited in notes (46 L. R. A. 3GO) on when conductor deemed coservant of 
 other railway employees; (5 L. R. A. 735) on who are fellow servants; (50 L. R. 
 A. 433, 435) on what servants deemed in same common employment. 
 Propriety of granting: motion for nonsuit. 
 
 Cited in Bohn v. Pacific Electric R. Co. 5 Cal. App. 624, 91 Pac. 115, holding 
 court has power to direct nonsuit at close of evidence where it would be obliged 
 to set aside verdict for plaintiff; Re Morey, 147 Cal. 507, 82 Pac. 57, holding it 
 in discretion of trial court and not error to grant motion for nensuit made at 
 close of evidence, where it would be duty of court to set aside verdict if jury 
 found for plaintiff. 
 Determination of negrlig-ence. 
 
 Cited in Brounton v. Southern P. R. Co. 2 Cal. App. 177, 83 Pac. 265, holding 
 where all facts in relation to loss of goods by fire at depot and cause thereof, 
 und acts done by defendants' servants to extinguish fire and preserve goods, are 
 undisputed, question of negligence one of law for court. 
 
 3 L. R. A. 826, CENTRAL LAND CO v. LAIDLEY, 32 W. Va. 134, 25 Am. St. 
 Rep. 797, 9 S. E. 61. 
 
 Report of decision on appeal from decision of Federal court in subsequent action 
 in Huntington v. Laidley, 176 U. S. 670, 44 L. ed. 631, 20 Sup. Ct. Rep. 526. 
 Aotice of defective conveyance. 
 
 Cited in Guffy v. Hukill, 34 W. Va. 61, 8 L. R. A. 765, 26 Am. St. Rep. 901, 
 11 S. E. 754, holding that lessee has no rights under forfeited lease of which sub- 
 sequent lessee could have notice; Harding v. Jennings, 68 W. Va. 358, 70 S. E. 1 ; 
 Reel v. Reel, 59 W. Va. 110, 52 S. E. 1023, holding subsequent purchaser not 
 charged with notice of rights attempted to be conveyed to another in void deed. 
 Kule as to refunding? of consideration. 
 
 Cited in Minis v. Machlin, 53 S. C. 6, 30 S. E. 585, holding married woman 
 need not return purchase money before suing to recover land conveyed by her 
 invalid release. 
 J,aml conveyed to married wniiiMii prior to 1868. 
 
 Cited in Pickens v. Kniseley, 36 W. Va. 800, 15 S. E. 997, holding land conveyed 
 to married woman in 1866 not her separate estate, without so specifying; Arnold 
 v. Bunnell, 42 W. Va. 483, 26 S. E. 359, holding deed in fee by husband and wife 
 conveyed husband's life estate only, when wife's acknowledgment was defective; 
 Xuttall v. McBey, 63 W. Va. 383, 60 S. E. 251, holding certificate of acknowl- 
 edgment made in 1868 by married woman, failing to state that on private ex- 
 amination she acknowledged instrument, renders deed void. 
 
 Statute of limitations. 
 
 Cited in Arnold v. Bunnell, 42 W. Va. 483, 26 S. E. 359, holding right of 
 grantee of fee to possession as against grantee of estate by curtesy does not begin 
 until husband's death; Merritt v. Hughes, 36 W. Va. 361, 15 S. E. 56, holding, 
 where husband conveys life estate, statute does not run against wife's reversion 
 until life estate ends; McXeeley v. South Penn Oil Co. 52 W. Va. 626, 62 L. R. 
 A. 569, 44 S. E. 508, holding that limitations begin to run at death of husband 
 who conveyed joint interest, and, after wife's death, conveyed balance. 
 
 Cited in note (10 L.R.A. (X.S.) 89) on effect of husband's life estate upon ad- 
 verse possession against wife. 
 Acknowledgment. 
 
 Cited in Morgan v. Snodgrass, 49 W. Va. 392, 38 S. E. 695, holding that as 
 
3 L.R.A. 826] L. R. A. CASES AS AUTHORITIES. 592. 
 
 general rule equity will not aid to cure defect iu married woman's acknowledg- 
 ments; Richards v. Mathews, 68 W. Va. 94, 69 S. E. 644, holding that under deed 
 from husband and wife, with acknowledgment defective as to wife, grantee takea 
 estate for life of husband. 
 
 Cited in notes (11 L. R. A. 193) on acknowledgment of deed by married 
 woman; (10 L. R. A. 857) on acknowledgment of deed by justice of peace. 
 Estoppel. 
 
 Cited in footnotes to Wilder v. Wilder, 9 L.R.A. 97, which holds married woman 
 estopped to claim vendors lien by representing that one loaning to vendee should 
 have first mortgage; Grice v. Woodworth, 69 L.R.A. 584, which holds married 
 woman estopped to set up invalidity of contract by her husband and herself to 
 sell homestead for failure to comply with certain conditions after purchaser had 
 paid purchase price, taken possession, and made valuable improvements. 
 
 3 L. R. A. 831, VILISKI v. MINNEAPOLIS, 40 Minn. 304, 41 N. W. 1050. 
 Rig-hts of abutting: owners to soil in high-way. 
 
 Cited in Andrews v. Youmans, 78 W T is. 58, 47 N. W. 304, holding public au- 
 thorities with easement may only remove trees essential to fit street for public- 
 travel ; District of Columbia v. Robinson, 14 App. D. C. 547, holding public au- 
 thorities with easement cannot remove gravel from one highway to improve 
 another; Haas v. Evansville, 20 Ind. App. 486, 50 N. E. 46, holding city can 
 remove natural soil from one street to another only when improvement of the 
 two streets is included in general plan; Anderson v. Bement, 13 Ind. App. 251, 
 41 N. E. 547, holding gravel cannot be taken by public from highway at one 
 place to improve highway at another remote place; Glencoe v. Reed, 93 Minn. 
 519, 67 L.R.A. 901, 101 N. W. 956, 2 A. & E. Ann. Cas. 594, holding that adjoin- 
 ing owner may remove gravel from highway, where it is not needed for im- 
 proving the highway and its removal causes no injury to the road bed. 
 
 Cited in footnote to Theobold v. Louisville, X. 0. & T. R. Co. 4 L. R. A. 735, 
 which holds steam railroad cannot be operated in street without condemnation, 
 or consent of abutting owner. 
 
 Cited in notes (4 L. R. A. 786) on right of eminent domain; (9 L. R. A. 551) 
 on form of dedication of land to public use. 
 
 3 L. R. A. 836, DREISBACH v. SERFASS, 126 Pa. 32, 17 Atl. 513. 
 Conveyance in consideration of services of grrnntee. 
 
 Cited in Ringrose v. Ringrose, 170 Pa. 608, 33 Atl. 129, holding deed in con- 
 sideration of support creates charge upon land, following it in hands of subse- 
 quent purchasers; Fritz v. Menges, 179 Pa. 131, 36 Atl. 213, holding deed in. 
 consideration of support conveys defeasible fee; Whitmore v. Hay. So Wis. 249, 
 39 Am. St. Rep. 838, 55 N. W. 708, holding deed to son in consideration of par- 
 ents' support, void as conveyance of homestead, valid as against other heirs; 
 Anspach v. Lightner, 31 Pa. Super. Ct. 220, holding conveyance of real estate 
 in fee simple, reserving property to grantor as long as she lived, but containing 
 no reservation in habendum, the object of grantor being to compensate grantee 
 fo'r services performed or to be performed, is deed and not will; Rice v. Rice, 
 23 Lane. L. Rev. 212; Rice v. Rice, 24 Lane. L. Rev. 90, holding that convey- 
 ance of fee provided that grantee will support grantor for life creates estate 
 upon condition and burden is on grantee of proving performance ; Helms v.. 
 Helms, 135 N. C. 174, 47 S. E. 415 (dissenting opinion), on necessity for per- 
 formance to recovery by grantee; Helms v. Helms, 137 N. C. 212, 49 S. E. 110 
 (dissenting opinion), on necessity for performance by grantee to maintain ac- 
 tion for possession. 
 
593 L. R. A. CASES AS AUTHORITIES. 3 L.R.^. 841? 
 
 Cited in notes (49 Am. St. Rep. 220) on conveyance to take effect after grant- 
 ors' death; (130 Am. St. Rep. 1052, 1055, 1056) on conveyances in consideration, 
 of support. 
 Intent to pass estate. 
 
 Cited in Lemon v. Graham, 131 Pa. 453, 6 L. R. A. 664, 19 Atl. 48, holding 
 effect of informal instrument transferring interest in real estate depends upon- 
 intent; Davis v. Martin, 8 Pa. Super. Ct. 138, holding that deeds given in con- 
 sideration of support will not pass estate if intention appears otherwise. 
 
 Cited note (14 Eng. Rul. Cas. 789) on determination of intention by consid- 
 eration of habendum clause. 
 What constitutes a trill. 
 
 Cited in Weaver v. Danehower, 27 Montg. Co. L. Rep. 115, holding that deed 
 providing that it is not to be delivered until aeath of one of grantors, is will. 
 
 Cited in footnote to Ferris v. Xeville, 54 L. R. A. 464, which holds sufficient as 
 will, paper executed as such, stating that it is good to specified person for 
 specified amount to be collected from writer's estate. 
 
 Cited in notes (12 L.R.A. 667) on creation or declaration of trust; (89 Am. St.. 
 Rep. 487, 499) on what constitutes a testamentary writing. 
 Performance of services by grantee. 
 
 Cited in Ringrose v. Ringrose, 170 Pa. 608, 33 Atl. 129. holding grantee of 
 land in consideration of support cannot retain it without performing the service; 
 Davis v. Martin, 8 Pa. Super. Ct. 138, holding burden upon grantee of showing 
 his performance of conditions of deed; Conlan v. Conlan, 20 Pa. Super. Ct. 50,. 
 holding grantee who had performed conditions entitled to possession. 
 
 Cited in footnotes to Cook v. Bartholomew, 13 L. R. A. 452, which holds a* 
 mortgage, deed conditioned on grantor supporting grantee for life; Glocke v. 
 Glocke, 57 L. R. A. 458, which holds land conveyed by aged parent to son prom- 
 ising to support him reverts to former on breach of agreement. 
 
 3 L. R. A. 839, FREILER v. KEAR, 126 Pa. 470, 17 Atl. 668, 906. 
 
 Report of second appeal in 133 Pa. 41, 19 Atl. 310. 
 Married woman's rights with respect to separate estate. 
 
 Cited in Meade v. Clarke, 159 Pa. 164, 23 L. R. A. 480, 39 Am. St. Rep. 669 r 
 28 Atl. 214, holding creditors of married woman have no lien on land conveyed by 
 her before, but with acknowledgment of deed after, judgment. 
 
 3 L. R. A. 841, PORT ROYAL MIX. CO. v. HAGOOD, 30 S. C. 519, 9 S. E. 686. 
 Mandamus. 
 
 Cited in State ex rel. School Dist. v. Rice, 32 S. C. 100, 10 S. E. 833, holding 
 that mandamus will not issue where legal right doubtful, or duty discretionary : 
 Harrison v. People, 97 111. App. 434 (dissenting opinion), majority upholding 
 mandamus to compel mayor to issue license, although power was discretionary; 
 State ex rel. Hunter v. Winterrood, 174 Ind. 597, 30 L.R.A. (N.S.) 888, 91 X. 
 E. 956, holding that petitioner for mandamus cannot require court to declare 
 statute void as condition precedent to issuance of writ ; State ex rel. Guenther- 
 v. Charleston Light & Water Co. 68 S. C. 552, 47 S. E. 979, holding mandamus 
 will not lie to compel removal of dam as obstruction in navigable stream, peti- 
 tion showing no special injury. 
 
 Cited in notes (16 L.R.A. (X.S.) 269) on right of relator in mandamus to 
 attack constitutionality of statute relied upon; (22 Am. St. Rep. 563) on 
 necessity of clearly establishing right to mandamus. 
 " L.R.A. Au. Vol. I. 38. 
 
3 L.R.A. 841] L. R. A. CASES AS AUTHORITIES. 594 
 
 Cited in footnote to Territorial Insane Asylum v. Wolfley, 8 L. R. A. 188, which 
 denies mandamus to compel governor to sign warrant for funds for asylum. 
 
 Distinguished in Ames v. People, 26 Colo. 90, 56 Pac. 656, considering on man- 
 damus by ministerial officer constitutionality of statute affecting rights of third 
 persons not parties who had tacitly consented to that mode of presenting the 
 question; Moore v. Napier, 64 S. C. 566, 42 S. E. 997, denying mandamus to 
 compel medical examiners to issue license without examination. 
 
 Limited in State ex rel. Fooshe v. Burley, 80 S. C. 131, 16 L.R.A.(X.S.) 271, 
 61 S. C. 255, holding where mandamus seeks to compel public officer to perform 
 duty prescribed by statute, he may contest validity of statute whose nature of 
 office is such as to require him to raise question of constitutionality, or his per- 
 sonal interest entitles him to do so. 
 Equal privileges and immunities. 
 
 Cited in note (14 L. R. A. 582) on equal privileges and immunities as to 
 property rights. 
 Delegation of legislative power. 
 
 Cited in Johnson v. Rock Hill, 57 S. C. 379, 35 S. E. 568, holding act giving 
 city power to grant waterworks franchise constitutional; State v. Moorehead, 
 42 S. C. 219, 26 L. R. A. 589, 46 Am. St. Rep. 719, 20 S. E. 544 (dissenting 
 opinion), majority holding act providing that commissioners fix certain li- 
 cense fees constitutional; Vesta Mills v. Charleston, 60 S. C. 8, 38 S. E. 
 226, holding legislature cannot authorize municipality to legislate so as to af- 
 fect jurisdiction of courts; Blue v. Beach, 155 Ind. 133, 50 L-. R. A. 70, 80 Am. 
 St. Rep. 195, 56 N. E. 89, upholding constitutionality of act allowing health 
 board to require vaccination as condition of attending school; Dastervignes v. 
 United States, 58 C. C. A. 350, 122 Fed. 34, sustaining statute authorizing 
 Secretary of Interior to regulate forest reservations; State v. Briggs, 45 Or. 371, 
 77 Pac. 750, 2 A. & E. Ann. Cas. 424, holding law vesting authority in board of 
 examiners to prescribe qualifications of barber not delegation of legislative pow- 
 <-r; Jones Bros. v. Southern R. Co. 76 S. C. 71, 56 S. E. 666, holding giving rail- 
 road commission power to prescribe rates for storage and fix time after recep- 
 tion of freight at destination when charges for storage shall begin, not delega- 
 tion of legislative powers; Kirk v. Board of Health (Kirk v. Wyman) 83 
 S. C. 381, 23 L.R.A.(N.S.) 1192, 65 S. E. 387, upholding delegation by legisla- 
 ture of power to boards of health to make rules and regulations for preservation 
 of public health; State v. Atlantic Coast Line R. Co. 56 Fla. 625, 32 L.R.A. 
 (X.S.) 652, 47 So. 969, upholding statute vesting authority in railroad com- 
 mission to make reasonable rules for intrastate transportation, for violation of 
 which rules a penalty prescribed by statute may be incurred; State Racing Com- 
 mission v. Latonia Agri. Asso. 136 Ky. 189, 25 L.R.A.(N.S.) 912, 123 S. W. 
 681, upholding law establishing racing commission to regulate racing of running 
 horses and breeding of thoroughbred horses, and granting power to issue license 
 to hold races ; Gulf, C. & S. F. R. Co. v. State, 56 Tex. Civ. App. 363, 120 S. W. 
 1028, holding that legislature can authorize railroad commission to make rule re- 
 quiring railroad to furnish cars for transportation beyond line. 
 Estoppel to raise constitutionality of statute. 
 
 Cited in Ross v. Lipscomb, 83 S. C. 149, 65 S. E. 451, holding party who in- 
 vokes provisions of statute as ground of relief cannot raise question as to its 
 constitutionality. 
 
595 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 854 
 
 3 L. R. A. 845, RAINWATER v. HARRIS, 51 Ark. 401, 11 S. W. 583. 
 
 3 L. R. A. 847, DOUGHERTY v. ROGERS, 119 Ind. 254, 20 N. E. 779. 
 \\ IM-II extrinsic evidence admissible. 
 
 Cited in Dowden v. Wood. 124 Ind. 236, 24 N. E. 1042, holding parol evidence 
 admissible to show that money represented by notes was not a loan but a 
 gift; West v. Rassman, 135 Ind. 291, 34 N. E. 991, holding surrounding cir- 
 cumstances may be looked into to determine the class to which distribution 
 in will should be made; Jennings v. Sturaevant, 140' Ind. 646, 40 N. E. 61, hold- 
 ing evidence admissible in construction of will ; Robbins v. Swain, 7 Ind. App. 
 491, 34 N. E. 670, admitting extrinsic evidence to explain testator's intention; 
 Whiteman v. Whiteman, 152 Ind. 274, 53 N. E. 225, admitting parol evidence 
 of circumstances surrounding will in order to correct date erroneously given; 
 Cravens v. Eagle Cotton Mills Co. 120 Ind. 11, 21 NT. E. 981, holding extrinsic 
 evidence might be given to explain collateral matters referred to in sub- 
 scription to stock; Dennis v. Holsapple, 148 Ind. 300, 46 L. R. A. 170, 62 
 Am. St. Rep. 526, 47 N. E. 631, holding extrinsic evidence can be given to de- 
 termine devisee; Sturgis v. Work, 122 Ind. 136, 17 Am. St. Rep. 349, 22 N. E. 
 996, holding extrinsic evidence not admissible to show that description of 
 land devised is erroneous; Chaplin v. Leapley. 35 Ind. App. 520. 74 N. E. 546, 
 holding parol evidence admissible where question of fact arises relative to what 
 testator lias actually done in way of providing for wife in lieu of her right in 
 his lands or in lieu of her. interest in any property devised by him; Darnell v. 
 Lafferty, 113 Mo. App. 303, 88 S. W. 784, holding parol evidence admissible to 
 elucidate writing Avhen language employed is ambiguous. 
 
 Cited in notes (3 L. R. A. 805) on parol evidence to explain latent ambi- 
 guity; (16 L. R. A. 322) on parol evidence of mistake in description of land de- 
 vised; (6 L.R.A.(N.S.) 943, 953, 963, 964) on correction of misdescription of 
 land in will; (15 Am. St. Rep. 715) on parol evidence as to writings. 
 Construction of instruments. 
 
 Cited in Mills v. Franklin, 128 Ind. 446, 28 N. E. 60, construing will to 
 pass fee; Boling v. Miller, 133 Ind. 604, 33 N. E. 354, construing will to 
 vest fee subject to be devested; Bailey v. Brown, 19 R. I. 682, 36 Atl. 581, con- 
 struing word "survive;" Slaughter v. Slaughter, 21 Ind. App. 643, 52 N. I". 
 Ofl4. holding receipt in full of claims against father's estate upon death, ad- 
 vancement, carrying interest as agreed; Pate v. Bushong, 161 Ind. 539, 63 L. 
 R. A. 507. 69 X. E. 291, holding mistake as to position of land will not defeat 
 devise, when size and characteristics of tracts given; Lee v. Lee. 45 Ind. App. 
 048, 91 X. E. 507, holding that intention controlling is not that which existed 
 in testator's mind when will was executed, but that embodied in language of 
 will itself. 
 
 Cited in notes (8 L.R.A. 740, 749) on construction of will; (11 L.R.A. (X.S.) 
 68) on bequest of stocks, bonds, or notes as general or specific; (38 L.R.A. (X.S.) 
 588, 592) on gift by testator as ademption of general legacy to donee; (21 Am. 
 St. Rep. 296) on essentials to advancement. 
 
 3 L. R. A. 854, GREGORY v. NEW YORK, 113 N. Y. 416, 21 N. E. 119. 
 Suspension of public officials. 
 
 Cited in Bringgold v. Spokane, 27 Wash. 207, 67 Pac. 612, holding police offi- 
 cer cannot be suspended by board pending charges ; Meyers v. New York, 69 
 Hun, 293. 23 X. V. Supp. 484, prior appeal 46 N. Y. S. R. 130, 18 X. Y. Supp. 
 304, holding inspector of regulating and grading city streets an employee mere- 
 
3 L.R.A. 854] L. R. A. CASES AS AUTHORITIES. 596. 
 
 ly and liable to removal as such; Emmitt v. New York, 128 N. Y. 119, 28 N. E. 
 19, holding inspector of masonry on New York aqueduct might recover sal- 
 ary during suspension; Wardlaw v. New York, 137 N. Y. 200, 33 N. E. 140,. 
 holding jury should determine whether suspended public officer waived rights 
 to salary by accepting other employment; Mullen v. New York, 34 N. Y. S. R. 
 913, 12 N. Y. Supp. 269, holding aqueduct commissioners could not suspend in- 
 spector of masonry; People ex rel. Stett'an v. Murray, 2 App. Div. 360, 37 
 N. Y. Supp. 848, holding excise inspector, asked to resign or stand discharged, 
 was discharged; People ex rel. Lion v. Murray, 5 App. Div. 289, 39 N. Y. Supp. 
 227, holding excise inspector removable at pleasure of board; Phelan v. New 
 York, 38 N. Y. S. R. 806, 14 N. Y. Supp. 785, holding superintending inspector 
 of masonry on public aqueduct estopped by agreement that payment should 
 cease during suspension; Morley v. New York, 35 N. Y. S. R. 263, 12 N. Y. 
 Supp. 609, holding assistant engineer in department of public works cannot 
 be suspended; Lethbridge v. New York, 27 Jones & S. 494, 15 N. Y. Supp. 562, 
 holding clerk in department of public works cannot be suspended; Wardlaw v. 
 New York, 46 N. Y. S. R. 862, 19 N. Y. Supp. 6, holding assistant engineer in 
 department of public works cannot be suspended; O'Hara v. New York, 46: 
 App. Div. 521, 62 N. Y. Supp. 146, holding watchman in public building, a 
 war veteran, cannot be removed at pleasure; Sheehan v. New York, 21 Misc. 
 601, 48 N. Y. Supp. 142, holding park laborer not officer whose compensation, 
 continued while awaiting employment; Gillan v. Board of Regents, 88 Wis. 14, 
 24 L. R. A. 338, 58 N. W. 1042, holding teacher in normal school, removable 
 at pleasure of board of regents, cannot recover for salary after removal; De- 
 Canio v. New York, 15 Misc. 41, 36 N. Y. Supp. 423, holding absence of aque- 
 duct inspector for sickness, but who continually reported for duty, did not 
 constitute abandonment of work; People ex rel. Brennan v. Scannell, 62 App. 
 Div. 255, 70 N. Y. Supp. U83, holding civil service rule regulating removal of 
 employee invalid; Mack v. New York, 37 Misc. 374, 75 N. Y. Supp. 809, hold- 
 ing that supervising engineer of village sewer system cannot recover of city 
 for work after annexation where it never recognized his contract with village; 
 Ransom v. Boston, 192 Mass. 306, 78 N. E. 481, 7 A. & E. Ann. Cas. 733, holding 
 veteran employed in labor service of city may on wrongful discharge maintain 
 action to recover wages for work subsequent to discharge; Griner v. Thomas, 
 101 Tex. 39, 104 S. W. 1058, 16 A. & E. Ann. Cas. 944, holding removal can 
 only be in mode prescribed by constitution; Sutliffe v. New York, 132 App. Div. 
 834, 117 N. Y. Supp. 813, holding public officer entitled to salary whether he 
 performs service or not where salary fixed by law is incident of office; Lethbridge 
 v. New York, 27 Jones & S. 487, 15 N. Y. Supp. 562, holding clerk in municipal 
 department appointed under civil service law cannot be suspended so as to de- 
 prive him of compensation; Wardlaw v. New York, 29 Jones & S. 175, 19 N. Y. 
 Supp. 6, holding city surveyor, whose office can be vacated only by death, resigna- 
 tion or removal, cannot be suspended without pay; Cull v. Wheltle, 114 Md. 89, 
 78 Atl. 820, holding that power of governor to suspend police commissioner 
 cannot be implied from power to remove for cause after trial. 
 
 Distinguished in Kelly v. New York, 70 Hun, 209, 24 N. Y. Supp. 1, hold- 
 ing inspector of masonry, dismissed for lack of work, not suspended; Beach v. 
 New York, 32 N. Y. S. R. 940, 10 N. Y. Supp. 793, holding clerkship meant 
 to be abolished although word "suspension'' used; Fox v. New York, 11 Misc. 
 307, 32 N. Y. Supp. 257, holding it for jury to determine whether there 
 really was suspension of inspector of masonry; Donnell v. New York, 68 
 Hun, 56, 22 N. Y. Supp. 661, holding that stenographer suspended from 
 further duty is removed; State ex rel. Douglas v. Megaarden, 85 Minn. 45, 89; 
 
597 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 850 
 
 Am. St. Rep. 534, 88 N. \V. 412, holding power to suspend sheriff pending re- 
 moval is incidental to governor's authority; Cook v. New York, 9 Misc. 338, 61 
 N. Y. S. R. 672, 30 N. Y. Supp. 404, holding that prison guard relieved from 
 duty was discharged; Lethbridge v. New York, 133 N. Y. 238, 30 N. E. 975, 
 denying recovery when funds appropriated to clerkship without fixed salary, 
 are exhausted; Re Croker, 78 App. Div. 191, 79 N. Y. Supp. 640, sustaining 
 power of fire commissioner to relieve chief from command during leave of 
 absence; People ex rel. Curren v. Cook, 117 App. Div. 790, 102 N. Y. Supp. 1087, 
 holding, under charter, clerk in employ of board of education who was subject 
 to removal for cause and suspension during trial of charges, was suspended during 
 trial of charges on which he was subsequently convicted; People ex rel. O'Brien 
 v. Butler, 120 App. Div. 755, 105 N. Y. Supp. 631, holding, under charter, tene- 
 ment house commissioner may suspend inspector without pay pending investiga- 
 tion of charges against him; Glynn v. Oswego, 71 Misc. 595, 130 N. Y. Supp. 
 860, holding that fireman may be suspended indefinitely; Maben v. Rosser, 24 
 Okla. 604, 103 Pac. 674, holding that court may suspend district judge pending 
 proceeding for his removal. 
 What court can pass on. 
 
 Cited in Kantrowitz v. Levin, 14 Misc. 566, 35 N. Y. Supp. 1072, holding 
 court authorized to determine facts by asking for direction of verdict; Ropes 
 v. Arnold, 81 Hun, 479, 30 N. Y. Supp. 997, holding party consented that court 
 should pass on disputable inference of fact; Banker v. Knibloe, 69 Hun, 540, 
 "23 N. Y. Supp. 1091, holding only questions reviewable on motion for new 
 trial are those raised by exception on trial. 
 Employment of officials for term of years. 
 
 Cited in Abrams v. Horton, 18 App. Div. 210, 79 N. Y. S. R. 889, 45 N. Y. 
 Supp. 887, holding county superintendents of poor cannot employ keeper of 
 almshouse for three years. 
 
 3 L. R. A. 857, HAIGHT v. HALL, 74 Wis. 152, 17 Am. St. Rep. 122, 42 
 
 N. W. 109. 
 Barring: curtesy. 
 
 Cited in McBreen v. McBreen, 154 Mo. 331, 77 Am. St. Rep. 758, 55 S. W. 463, 
 holding deed to married woman living separately, of land purchased with 
 separate estate and taken in terms to sole use, free of all marital rights of 
 husband, gives absolute estate in equity, free from curtesy; Re Kaufmann, 227 
 Mo. 413, 126 S. W. 1023, holding curtesy barred where deed conveys to husband 
 in trust for wife, for sole and separate use, benefit and behoof of wife, entirely 
 free from all control, restrain or interference as well as the estate of curtesy and 
 debts of husband; Jamison v. Zausch, 142 Fed. 899, holding curtesy not barred 
 by conveyances to wife in* usual form of warranty deed. 
 
 Cited in notes (7 L.R.A. 695) on tenancy by curtesy; (112 Am. St. Rep. 587) 
 on tenancy by the curtesy; (128 Am. St. Rep. 491) on nature and existence of 
 estates of tenancy by the curtesy. 
 
 Distinguished in Van Osdell v. Champion, 89 Wis. 665, 27 L. R. A. 775, 46 
 Am. St. Rep. 864, 62 N. W. 539, holding condition that realty devised should 
 not be subject to debts void. 
 
 3 L. R. A. 859, NEWHALL v. APPLETON, 114 N. Y. 140, 21 N. E. 105. 
 
 Later appeal in 25 Jones & S. 345, 9 N. Y. Supp. 306. 
 1 :iu- to explain terms of contract. 
 
 Cited in Smith v. Clews, 114 N. Y. 194, 4 L. R. A. 394, 11 Am. St. Rep. 
 ii27, 21 X. E. 160. holding usage admissible to explain "on approval" in receipt 
 
3 L.R.A. 859] L. R. A. CASES AS AUTHORITIES. 59$ 
 
 given by diamond dealer in trade contract; Brody v. Chittenden, 106 Iowa, 
 528, 76 N. W. 1009, holding evidence that, by custom, regulators and scales 
 in jeweler's trade not covered by mortgage on "fixtures ;" Atkinson v. Trues- 
 dell, 127 N. Y. 234, 27 N. E. 844, holding parol evidence of usage to explain 
 phrase "to be taken by Jan. 1st," in order for bottles, admissible ; Dwight v. 
 Cutting, 91 Hun, 41, 36 N. Y. Supp. 99, holding custom to allow for shrinkage 
 on measurement of bark admissible in behalf of defendant in action for pur- 
 chase price; Mclntosh v. Miner, 53 App. Div. 245, 65 N. Y. Supp. 735, holding 
 evidence to establish customary length of theatrical "season" competent in ac- 
 tion for breach of contract of employment; Briscoe v. Litt, 19 Misc. 7, 42 N. Y. 
 Supp. 908, holding custom to terminate theatrical employees' contracts on two 
 weeks' notice competent in action to recover contract price for services; Henry 
 v. Agostini, 12 Misc. 17, 33 N. Y. Supp. 37, holding evidence admissible to show 
 that "windows," in contract to furnish frames and sashes, refers only to ex- 
 terior windows; Schipper v. Milton, 51 App. Div. 525, 64 N. Y. Supp. 935, hold- 
 ing evidence admissible to show custom to regard specification of "manila hemp" 
 in sale contract, merely as measure of value of hemp sold; Underwood v. Green- 
 wich Ins. Co. 161 N. Y. 423, 55 N. E. 936, holding evidence admissible to es- 
 tablish custom to regard "binding slip," on application for renewal of insurance 
 policy, as binding merely until action by company; White v. Ellisburgh, 18 
 App. Div. 517, 79 N. Y. S. R. 1124, 45 N. Y. Supp. 1122, holding evidence of 
 custom to construct "iron bridge" with wooden joists admissible in action on 
 construction contract; Southampton v. Jessup, 173 N. Y. 89, 65 N. E. 949, hold- 
 ing parol evidence inadmissible when writing silent to show that bridge is to 
 be made of wood. 
 
 Cited in footnotes to Baltimore Base Ball & Exhibition Co. v. Pickett, 22 L. 
 R. A. 690, which holds special contract for definite time not affected by cus- 
 tom to discharge ball players on ten days' notice; Harris v. Sharpies, 58 L. R. 
 A. 214, which denies right under contract, to add lithographer's name for ad- 
 vertising purposes to lithographed cover design; German American Ins. Co.. 
 v. Commercial F. Ins. Co. 16 L. R. A. 291, which holds custom in particular 
 city as to what constitutes "building" or "risk" not presumed to be known to 
 foreign company; Delaware Ins. Co. v. S. S. White Dental Mfg. Co. 65 L.R.A. 
 387, which holds "marine policy providing that no risk shall attach until amount 
 and description is approved and indorsed thereon, not changed into open and' 
 unrestricted policy covering all property assured elects to report, by adopting; 
 agreement fixing uniform premium, supplying blanks on which to report risks 
 and a long continued custom of reporting risks by assured when convenient, and 
 their uniform acceptance by insurer. 
 
 Cited in notes (10 L. R. A. 786) on law, usage and custom as part of con- 
 tract; (12 L. R. A. 376) on construction of terms void in contracts; (13 L. R^ 
 A. 440) on custom and usage as law; (17 L. R. A. 272) on exception to rule 
 that parol evidence inadmissible to vary written contract; (6 L. R. A. 43) on 
 parol evidence as to meaning of words and phrases. 
 
 Distinguished in Thomas v. Sctitt, 127 N. Y. 141, 27 N. E. 961, holding 
 oral evidence tending to change complete transfer of title to lumber to agree- 
 ment for sale of lumber for mortgagor's benefit inadmissible; House v. Watch, 
 144 N. Y. 422, 39 N. E. 327, holding inadmissible, oral evidence to vary mu 
 ambiguous contract for transfer of realty; Simis v. New York, L. E. & VV. 
 R. Co. 1 Misc. 180, 20 N. Y. Supp. 639, holding custom of railroad to issue 
 tickets in lieu of those lost inadmissible in action on written contract contain- 
 ing no such stipulation; Booth Bros. v. Baird, 87 Hun, 455, 34 N. Y. Supp. 392, 
 holding parol evidence to explain meaning of "superficial yard," by local custom 
 
599 L. R. A. CASES AS AUTHORITIES. [3 L.R.A. 863 
 
 known to parties, inadmissible when custom not clearly established; Goulds 
 Mfg. Co. v. Munckenbeck, 20 App. Div. 614, 47 X. Y. Supp. 325, holding custom 
 not to charge interest until rendition of account not admissible to vary sale, con- 
 tract expressly providing "Terms: thirty days." 
 Pnrol evidence to explain ambiguity. 
 
 Cited in Southampton v. Jessup, 173 N. Y. 89, 65 N. E. 949, holding where 
 town trustees by resolution authorize party "to make roadway and erect bridge" 
 of fixed width and height, there is no ambiguity rendering parol evidence admis- 
 sible to show both parties intended certain material to be used. 
 
 Cited in note (14 Eng. Rul. Cas. 672) on parol evidence as to usage in inter- 
 pretation of written contracts. 
 
 3 L. R. A. 861, McBRYDE v. SAYER, 86 Ala. 458, 5 So. 791. 
 Rig-ht to injunction. 
 
 Cited in Clifton Iron Co. v. Dye, 87 Ala. 471, 6 So. 192, holding injunction 
 to restrain pollution of stream by upper riparian proprietor not granted where 
 complainant has other water available, and public interests favor industry caus- 
 ing injury; Allen v. LaFayette, 89 Ala. 652, 9 L. R. A. 501, 8 So. 30, refusing 
 to enjoin payment of void county bonds issued for money loaned by holder, 
 and legitimately expended in behalf of county; Brasher v. Miller, 114 Ala. 489, 
 21 So. 467, holding injunction to restrain payment of school teacher's salary 
 will not issue where services performed, though contract void; Amelia Mill. Co. 
 v. Tennessee Coal, Iron & R. Co. 123 Fed. 814, denying injunction against 
 use of ore washers, when loss to defendant greater than plaintiff's injury; 
 Wharton v. Hannon, 101 Ala. 558, 14 So. 630 (dissenting opinion), majority up- 
 holding injunction against obstruction of alley- way, though better ingress 
 and egress offered by other alley-way; Campau v. National Film Co. 159 Mich. 
 173, 123 X. W. 606. holding injunction will not issue to prevent carrying on busi- 
 ness of lessee where lessor' knew purpose for which property was leased, and 
 injunction would be unconscionable and result in hardship to lessee; Madison v. 
 Ducktown Sulphur, Copper & I. Co. 113 Tenn. 362, 83 S. W. 658, holding injunc- 
 tive relief may be refused in discretion of court where it will close large indus- 
 try and injuriously affect large number of people. 
 
 Cited in note (6 L.R.A. 159) on definition of easement; (13 Eng. Rul. Cas. 109). 
 on injunction to restrain breach of covenant; (13 Eng. Rul. Cas. 117) as to 
 when interlocutory injunction will be granted. 
 
 Distinguished in Ives v. Edison, 124 Mich. 406, 50 L. R. A. 137, 83 Am. St. 
 Rep. 329, 83 X. \V. 120 (footnote 50 L. R. A. 134), which sustains right of 
 owner of easement to injunction to compel restoration of stairway; South 
 & North Ala. R. Co. v. Highland Ave. & Belt R. Co. 98 Ala. 409, 39 Am. St. 
 Rep. 74, 13 So. 682, decreeing specific performance of agreement to permit 
 railway to lay track on defendant's land. 
 
 3 L. R. A. 863, CLANIN v. ESTERLY HARVESTING MACH. CO. 118 ImL 
 
 372, 21 N. E. 35. 
 Extrinsic evidence to vary contract. 
 
 Cited in Mclntosh-Huntington Co. v. Rice, 13 Colo. App. 407, 58 Pac. 358, 
 and Murray v. W. W.^imball Co. 10 Ind. App. 187, 37 N. E. 736, holding in 
 action by payee that parol evidence to establish delivery to payee or his agent 
 in escrow not admissible; Loonie v. Tillman. 3 Tex. Civ. App. 334, 22 S. W. 524, 
 and Cooper v. Merchants' & M. Nat. Bank, 25 Ind. App. 346, 57 X. E. 569, hold- 
 ing same true in action by indorsee; Conant v. National State Bank, 121 
 
3 L.R.A. 8U3] L. R. A. CASES AS AUTHORITIES. 000 
 
 Ind. 325, 22 N. E. 250, holding evidence to alter notes and mortgage inad- 
 missible in absence of fraud or mistake. 
 
 Cited in notes (20 L. R. A. 713) on admissibility of extrinsic evidence to 
 show who is liable as maker of note; (43 L. R. A. 460, 481) on breach of con- 
 temporaneous agreements as defense to promissory note; (45 L. R. A. 346) 
 on conditional execution of contract under parol agreement as to taking effect; 
 (18 L.R.A.(N.S.) 291) on parol evidence to show bill or note delivered upon 
 condition; (30 L.R.A.(N.S.) 44) on reference to extrinsic agreement as affecting 
 negotiability; (31 L.R.A. (N.S.) 237) on admissibility of parol evidence as to 
 manner or means of paying written contract not within statute of frauds, pur- 
 porting to be payable in money; (21 Am. St. Rep. 296) on parol evidence as to 
 notes. 
 
 Distinguished in Hunter v. First Xat. Bank, 172 Ind. 74, 87 N. E. 734, holding 
 under plea of non est factum, parol admissible to show that delivery of note in 
 its then form was unauthorized and note accordingly not fully executed. 
 "Contract of guaranty. 
 
 Cited in note (105 Am. St. Rep. 502) on contract of guaranty. 
 Delivery of note to payee as escrow. 
 
 Cited in note (130 Am. St. Rep. 927) on delivery of note to payee as escrow 
 Negotiability of note. 
 
 Cited in Gilpin v. People's Bank, 45 Ind. App. 55, 90 N. E. 91, holding that 
 'designation of consideration for promise to pay does not destroy its negotiability. 
 
L. R A. CASES AS AUTHORITIES. 
 
 CASES IN 4 L. R A. 
 
 4 L. R. A. 33, OLIVE v. STATE, 86 Ala. 88, 5 So. 653. 
 Judicial notice. 
 
 Cited in Roby v. Sheppard, 42 W. Va. 292, 26 S. E. 278, holding that judicial 
 notice will be taken of population of city; Anderson v. Com. 100 Va. 864, 42 
 S. E. 865, holding that court will not take judicial notice of fact that unin- 
 corporated hamlet is in particular county. 
 
 Cited in footnotes to Southern R. Co. y. Covenia, 40 L. R. A. 253, which holds 
 judicial notice will be taken that child under two cannot perform services of 
 value to parents; Com. v. King, 5 L. R. A. 536, which authorizes taking 
 of judicial notice that river is not a public highway; Jamieson v. Indiana 
 Natural Gas & Oil Co. 12 L. R. A. 652, which holds that judicial notice 
 will be taken that natural gas is dangerous agency; Richardson v. Buhl, 6 L. 
 R. A. 458, which holds courts will take judicial notice of illegal contracts; Wal- 
 cott v. Wells, 9 L. R. A. 60, which holds judicial notice will be taken of assign- 
 ment of judge to certain district. 
 
 Cited in notes (5 L.R.A. 364) on conflict of laws; (13 Am. St. Rep. 738) on 
 judicial notice; (82 Am. St. Rep. 446) on judicial notice of localities and boun- 
 daries. 
 Pnblic iiiv. invnys; obstructions In. 
 
 Cited in Webb v. Demopolis, 95 Ala. 135, 21 L. R. A. 70, 13 So. 289, holding 
 continuance of obstruction in public street for any length of time will not 
 prevent city from obtaining injunction; Reed v. Birmigham, 92 Ala. 349, 9 So. 
 161, holding statute of limitation no bar to proceeding to remove obstruction in 
 public street; Weiss v. Taylor, 144 Ala. 447, 39 So. 519, holding statute of lim- 
 itations not to run against a bill to abate public nuisance. 
 Waters as. . 
 
 Cited in Webster v. Harris, 111 Tenn. 692, 59 L. R. A. 330, 69 S. W. 782, hold- 
 ing lake not navigable in technical sense, whose bed is covered with trees and 
 stumps through which are no proper channels; Morrison Bros. v. Coleman, 87 Ala. 
 657, 5 L. R. A. 385, 6 So. 374, holding fresh-water stream not shown to have been 
 navigable to point of obstruction; Alabama S. River Nav. Co. v. Georgia P. R. 
 Co. 87 Ala. 155, 6 So. 73, holding company to improve river cannot remove ob- 
 struction until it is reached in progress of work; Blackman v. Mauldin, 164 Ala. 
 342, 27 L.R.A. (N.S.) 672, 51 So. 23, holding that a fresh water stream in a 
 settled coxintry able in its normal state without artifical aid to float local pro- 
 ducts is a "floatable stream" subject to public uses; Webster v. Harris, 111 Tenn. 
 692, 59 L.R.A. 330, 69 S. W. 782, holding extent of use for navigation a de- 
 termining factor as to navigability. 
 
 601 
 
4 L.R.A. 33] L. R. A. CASES AS AUTHORITIES. 602 
 
 Cited in notes (41 L. R. A. 371, 375) on right to use stream for floating 
 logs; (42 L. R. A. 317, 320) on what waters are navigable; (59 L. R. A. 79) 
 on right to obstruct or destroy rights of navigation; (53 L. R. A. 903) on 
 obstructions and encroachments in waterways; (67 L.R.A. 838) on right to im- 
 prove navigability of stream; (126 Am. St. Rep. 717, 722, 730) on what waters 
 are navigable. 
 Statutory declaration of navigability. 
 
 Cited in People ex rel. Deneen v. Economy Light & P. Co. 241 111. 330, 89 X. 
 E. 760, on compensation as a condition to legislative appropriation of a non- 
 navigable stream to public use for navigation. 
 Prescription and adverse possession. 
 
 Cited in Birmingham v. Land, 137 Ala. 546, 34 So. 613, holding maintenance 
 of nuisance for ten years no defense to action therefor; Mobile Transp. Co. v. 
 Mobile, 128 Ala. 351, 64 L. R. A. 343, 86 Am. St. Rep. 143, 30 So. 645, hold- 
 ing evidence of adverse possession of public land as against city, properly 
 rejected. 
 
 Cited in note (76 Am. St. Rep. 485) on adverse possession of public property. 
 
 4 L. R. A. 45, LANE'S APPEAL, 57 Conn. 182, 14 Am. St. Rep. 94, 17 Atl. 926. 
 Execution of will. 
 
 Cited in Packer v. Packer, 179 Pa. 583, 57 Am. St. Rep. 516, 36 Atl. 344, 
 holding will, not legally witnessed when executed, not validated by act dispens- 
 ing with requirement; Stone's Appeal, 74 Conn. 304, 50 Atl. 734, holding in- 
 valid, nuncupative will made by one who was neither mariner nor soldier; Hatha- 
 way v. Smith, 79 Conn. 511, 9 L.R.A.(N.S.) 312, 65 Atl. 1058, 9 A. & E. Ann. Cas. 
 99, on the observance of statutory formalities in force at time of execution of 
 will as essential to its proper execution; Bryan v. Bigelow, 77 Conn. 613, 107 Am. 
 St. Rep. 64, 60 Atl. 266, holding a sealed letter deposited with and referred to in 
 a, will is ineffective as a part of such will it not being executed as a will ; 
 Barker v. Hinton, 62 W. Va. 645, 59 S. E. 614, 13 A. & E. Ann. Cas. 1150; hold- 
 ing the laws with respect to execution at the time of execution apply as against 
 those in force at time of testator's death. 
 
 Disapproved in Langley v. Langley, 18 R. I. 621, 30 Atl. 465, holding will 
 not legally witnessed at time of execution validated on death of testator by 
 change in statute. 
 Retroactive statutes. 
 
 Cited in note (30 Am. St. Rep. 78) on retroactive statutes. 
 
 4 L.R.A. 48, LEPPLE v. HAWKE, 51 N. J. L. 208, 14 Am. St. Rep. 677, 17 
 
 Atl. 351. 
 Replevin. 
 
 Cited in Buis v. Cooper, 63 Mo. App. 202, holding exempt property cannot be 
 taken by replevin from officer. 
 
 4 L. R. A. 51, FOLEY v. PETTEE MACH. WORKS, 149 Mass. 294, 21 N. E. 304. 
 What risks employee assumes. 
 
 Cited in Connors v. Morton, 160 Mass. 335, 35 N". E. 860, holding that servant 
 took risk of working in obviously dangerous place about elevator well ; Daigle 
 v. Lawrence Mfg. Co. 159 Mass. 379, 34 N. E. 458, holding that servant took 
 obvious risk of removing waste from revolving cylinder; Murphy v. American 
 Rubber Co. 159 Mass. 267, 34 N. E. 268, holding servant assumes risk of uncov- 
 ered shafting; Rood v. Lawrence Mfg. Co. 155 Mass. 593, 30 N. E. 174, holding 
 
003 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 51 
 
 nineteen year old boy understood danger of holding onto shipper rod outside* 
 elevator well; Anderson v. Clark, 155 Mass. 370, 29 N. E. 589. holding that sea- 
 man took obvious risks of windlass and its appliances; Alexander v. Davis Bros. 
 Lumber Co. 124 La. 11, 49 So. 724, holding servant familiar with saw mills 
 took risk of working with gloved hands near to revolving cog-wheels in plain 
 sight. 
 
 Cited in footnotes to Goodrich v. New York C. & H. R. R. Co. 5 L. R. A. 750, 
 which holds risk from defective couplers not assumed; Williamson v. Newport 
 News & M. Valley Co. 12 L. R. A. 297, which holds brakeman assumes risk of 
 bridge known to be too low; Coyle v. Gritting Iron Co. 47 L. R. A. 147, which 
 holds that servant assumes obvious risk from using machine from which bolt 
 7iiissing; Mensch v. Pennsylvania R. Co. 17 L. R. A. 450, which holds danger 
 from projection of bolt from end of car a=sumed by brakeman; Lewis v. New 
 York & N. E. R. Co. 10 L. R. A. 513, which holds that servant cannot recover 
 for injuries from known defects though master promised to remedy them to 
 avoid injury to third persons; McKee v. Chicago, R. I. & P. R. Co. 13 L. R. A. 
 817. which holds risk from wing fences at cattle-guards assumed by brakemen; 
 <Stager v. Troy Laundry Co. 53 L. R. A. 459. which holds risk of hand passing 
 under guard rails into rollers not assumed as matter of law by servant operat- 
 ing mangle in laundry. Louisville & N. R. Co. v. Hall, 4 L. R. A. 710, which 
 holds company liable to brakeman for injury by low bridge; Jacksonville, T. & 
 K. W. R. Co. v. Galvin. 10 L. R. A. 337, which holds risk from projecting articles 
 r.ssumed by brakeman. 
 
 Cited in notes (12 L. R. A. 342) on employee assumes ordinary risks of his 
 employment; (8 L. R. A. 636) on servant's knowledge of defective and dangerous 
 machine. 
 Master'* dnty to guard machinery. 
 
 Cited in LaFayette Carpet Co. v. Stafford, 25 Ind. App. 190, 57 N. E. 944, 
 holding master not required to cover whizzer used to extract water from yarn; 
 Hale v. Cheney, 159 Mass. 271, 34 N. E. 255, holding master not bound to box 
 shaft; Wilson v. Massachusetts Cotton Mills, 169 Mass. 71, 47 N. E. 506, hold- 
 ing master not bound to cover cogwheels of machine used to hoist bales of cotton ; 
 Guedelhofer v. Ernsting, 23 Ind. App. 202, 55 N. E. 113, holding master not 
 bound to furnish guard on jointer; WMlcox v. Herbert, 90 Ark. 149, 118 S. W. 402, 
 holding master not necessarily negligent in selection of a more dangerous kind 
 of machinery or in altering machinery to render it less safe. 
 blaster's duty to -warn servant. 
 
 Cited in footnote to Ciriack v. Merchants Woolen Co. 6 L. R. A. 733, which 
 holds master not bound to warn twelve year old servant of danger from cog- 
 wheels in plain sight. 
 
 Cited in notes (44 L. R. A. 51) on master's duty to instruct and warn servants 
 as to perils of employment; (4 L. R. A. 851) on master's duty to inform servants 
 of extraordinary risks. 
 Statutory notice of injury to aervant. 
 
 Cited in McKenna v. Gould Wire Cord Co. 197 Mass. 411, 83 N. E. 1113, on 
 necessary steps to be taken by plaintiff after injury to entitle him to statutory 
 remedies; Chisholm v. Manhattan R. Co. 116 App. Div. 325, 101 N. Y. Supp. 622, 
 holding service of complaint alleging death was caused by common law negli- 
 gence of defendant's superintendent, not a compliance with statutory requirement 
 for notice to put statutory remedy in force; Williams v. Atchison, T. & S. F. R. 
 Co. 233 Mo. 083, 136 S. W. 304, holding that no recovery can be had for injury 
 
4 L.R.A. 51] L. R. A. CASES AS AUTHORITIES. 604 
 
 to switchman because of proximity of freight platform to track, unless state 
 inspector has given company notice. 
 
 Cited in note (19 Eng. Rul. Gas. 59) on necessity of notice to liability for in 
 jury due to neglect of statutory precautions. 
 
 4 L. R. A. 54, SEITHER v. PHILADELPHIA TRACTION CO. 125 Pa. 397, 11 
 
 Am. St. Rep. 905, 17 Atl. 338. 
 Effect of release of one joint tort-feasor. 
 
 Cited in Abb v. Northern P. R. Co. 28 Wash. 431, 58 L. R. A. 298, 92 Am. St. 
 Rep. 864, 68 Pac. 954, holding that satisfaction of claim by street railway re- 
 leased steam railway, a joint wrongdoer ; Hartigan v. Dickson, 81 Minn. 286 r 
 83 N. W. 1091, holding that satisfaction by railway of claim for injuries due to- 
 foreman barred action against foreman; Missouri, K. & T. R. Co. v. McWherter, 
 59 Kan. 351, 53 Pac. 135, holding release of alleged wrongdoer not bar to action 
 against real wrongdoer; O'Shea v. New York, C. & St. L. R. Co. 44 C. C. A. 604, 
 105 Fed. 562, holding satisfaction of claim by one of several joint tort-feasors 
 releases all ; Miller v. Beck, 108 Iowa, 578, 79 N. W. 344, holding release of one 
 wrongfjper does not release another who was not joint wrongdoer; Hubhard v. 
 St. Louis & M. R. R. Co. 173 Mo. 255, 72 S. W. 1073, holding release of express 
 company by employee from liability for injuries from collision of express wagon 
 with street car discharge of street car company; Abb v. Northern P. R. Co. 28 
 Wash. 431, 58 L. R. A. 298, 92 Am. St. Rep. 864, 68 Pac. 954, holding satisfaction 
 as to claim against one wrongdoer releases another, although stipulated other- 
 wise; McCoy v. Louisville & N. R. Co. 146 Ala. 336, 40 So. 306. holding judgment 
 and satisfaction against one of two or more joint tort feasors may be pleaded in 
 bar of further action on same subject by same plaintiff against the other joint 
 tort feasors; Ducey v. Patterson, 37 Colo. 221, 9 L.R.A. (X.S.) 1068, 119 Am. St. 
 Rep. 284, 86 Pac. 109, 11 A. & E. Ann. Gas. 393, on release of all joint tort- 
 feasors by taking of judgment and satisfaction from part; Cleveland, C. C. & 
 St. L. R. Co. v. Hilligoss, 171 Ind. 424, 131 Am. St. Rep. 258, 86 N. E. 485, hold- 
 ing a contract of release of one of several joint tort-feasors clearly showing a 
 surrender of all claim for recompense for injury done will release the other 
 wrong doers; Snyder v. Mutual Teleph. Co. 135 Iowa, 229, 14 L.R.A.(N.S-) 329, 
 112 N. W. 776, holding the acceptance of a voluntary satisfaction from one of two 
 joint tort-feasors giving receipt in full is a bar against the other though the 
 claimant intended by the acceptance that the other be not released; Ryan v. 
 Becker, 136 Iowa, 277, 14 L.R.A.(N.S.) 332, 111 N. W. 426, on the rule that 
 plaintiff in second action against different defendant is estopped from setting 
 up that defendant in first action from whom judgment and satisfaction was ob- 
 tained for same tort was not a joint tort-feasor; Sircey v. Hans Rees' Sons, 155 
 N. C. 303, 71 S. E. 310, holding that release of railroad from liability for in- 
 jury to switchman from being struck by pile of bark near track releases owner 
 of bark; Thorp v. Boudwin, 228 Pa. 171, 77 Atl. 421, holding that person in- 
 jured by collapse of building can sue landlord and tenant, but can have only one 
 satisfaction; Robinson v. St. Johnsbury & L. C. R. Co. 80 Vt. 140, 9 L.R.A. (X.S.) 
 1254, 66 Atl. 814, 12 A. & E. Ann. Gas. 1060, holding railway company and 
 express company with which it has a contract of carriage, under which the ex- 
 press company is to indemnify railroad for claiming for injuries through negli- 
 gence may be joint tort-feasors and an action by express messenger against rail- 
 road for injury may be barred by satisfaction from express company. 
 
 Cited in notes ( 58 L. R. A. 297, 307 ) on effect of release of one joint tort-feasor 
 on liability of another; (14 L.R.A. (N.S.) 322) on effect of release of person not 
 liable from liability for a tort to release another; (19 L.R.A. (X.S.) 619) on 
 
605 L. E. A. CASES AS AUTHORITIES. [4 L.R.A. 55 
 
 effect, in release of one joint tort feasor, of reservation of right as against others ; 
 (92 Am. St. Rep. 880, 881, 886) on release of one joint tort-feasor affecting 
 liability of others. 
 
 Distinguished in Derosa v. Hamilton, 3 Pa. Dist. R. 410, 4 Dauphin Co. Rep. 
 253, 14 Pa. Go. Ct. 317, holding release of two physicians in action for malprac- 
 tice not discharge of third. 
 
 4 L. R. A. 55, ELLIS v. GARY, 74 Wis. 176, 17 Am. St. Rep. 125, 42 N. W. 252. 
 Oral agreement to make will or convey land. 
 
 Followed in Loper v. Sheldon, 120 Wis. 31, 97 N. W; 524; Dixon v. Sheridan, 
 125 Wis. 64, 103 N. W. 239, holding an indivisible parol contract to devise both 
 realty and personalty is within statute of frauds and void as to both kinds of 
 property. 
 
 Cited in Grant v. Grant, 63 Conn. 538, 38 Am. St. Rep. 379, 29 Atl. 15, holding 
 specific performance of oral agreement to devise land to adopted child not en- 
 forceable by him; Dicken v. McKinley, 163 111. 327, 54 Am. St. Rep. 471, 45 N. E. 
 134, holding oral agreement by parents of child and adopting parent, in relation 
 to willing her property, within statute of frauds; Swash v. Sharpstein, 14 Wash. 
 436, 32 L. R. A. 799, 44 Pac. 862, holding within statute of frauds oral agree- 
 ment to devise land; Harman v. Harman, 17 C. G. A. 519, 34 U. S. App. 316, 70 
 Fed. 934, decreeing specific performance of agreement by uncle with his nephews 
 to leave land to them on death; Kessler's Estate, 87 Wis. 667, 41 Am. St. Rep. 
 74, 59 N. W 7 . 129, holding oral agreement to devise real estate in consideration 
 of services within statute of frauds; Rodman v. Rodman, 112 Wis. 378, 384, 88 
 N. W. 218, holding oral agreement to will property within statute of frauds; 
 Everdell v. Hill, 58 App. Div. 155, 68 N. Y. Supp. 719, holding alleged oral agree- 
 ment between sisters, that survivor should leave property to nieces, within 
 statute of frauds. 
 Statute of frauds Recovery on quantum mcrult. 
 
 Cited in Cann v. Cann, 40 W. Va. 155, 20 S. E. 910, holding son remaining un- 
 married and working farm for father on agreement for testamentary compensa- 
 tion entitled to quantum meruit from father's estate; Williams v. Williams, 114 
 \Yis. 79, 82, 89 N. W. 835, holding contract implied for services rendered one 
 brother by another in superintending building; Martin v. Martin, 108 Wis. 289, 
 81 Am. St. Rep. 895, 84 N. W. 439, holding boy not legally adopted, but always 
 treated as son, cannot recover for services in absence of agreement; Gorrell v. 
 Taylor, 107 Tenn. 570, 64 S. W. 888, holding services of daughter and son-in-law 
 during sickness of parent cannot be recovered for against his estate; Quinn v. 
 Quinn, 5 S. D. 333, 49 Am. St. Rep. 875, 58 N. W. 808, holding one adopted as 
 heir under agreement with his mother can maintain action to set aside con- 
 veyance and will in fraud of his rights as heir; Re Schmidt, 93 Wis. 124, 67 
 N. W. 37, holding son-in-law has no claim against father-in-law's estate for 
 board and lodging, without express agreement; IHitler v. Kent, ]52 Ala. 595, 
 44 So. 863, holding that evidence of an oral agreement for compensation though 
 void under statute of frauds is admissible in quantum meruit action to rebut 
 defense of gratuitous rendition of services; Raycraft v. Johnston, 41 Tex. Civ. 
 App. 470, 93 S. W. 237, holding that a person performing work on a parol 
 promise of gift of estate by will may sue on quantum meruit on non-performance 
 of promise, though such promise is void under statute of frauds; Taylor v. 
 Thieman, 132 Wis. 43, 122 Am. St. Rep. 943, 111 X. W. 229, holding an express 
 promise to will realty orally made admissible to rebut presumption that the serv- 
 
4 L.R.A. 55] L. R. A. CASES AS AUTHORITIES. COG 
 
 ices rendered by adopted son in consideration for promise were rendered gra- 
 tuitously, though the promise is void under statute of frauds. 
 
 Cited in footnote to Ulrich v. Ulrich, 18 L. R. A. 37, which holds that no pre- 
 sumption exists against parent's agreement to pay for services where evidence 
 tends to show agreement. 
 
 Cited in notes (57 L.R.A. 729) on parent's duty to support child, as affected' 
 by child's interest in trust estate or other property; (37 L.R.A. (N.S.) 640) oni 
 right to recover value of services rendered in consideration of contract to con- 
 vey or devise property which is void by the statute of frauds; (]02 Am. St. Rep.. 
 241 ) on contract for sale of land within statute of frauds. 
 _ Part performance; quantum meriiit. 
 
 Cited in Daily v. Minnick, 117 Towa, 569, 60 L. R. A. 843. 91 N. W. 913, holding 
 performance of consideration for conveyance of land by naming child after owner- 
 takes it out of statute of frauds; Leitgabel v. Belt, 108 Wis. 108, 83 N. W. 1111, 
 holding that evidence sustained agreement to pay niece, member of decedent's 
 family, for services; Kessler's Estate, 87 Wis. 664. 41 Am. St. Rep. 74, 59 N. W. 
 129, holding agreement to pay nephew living with aunt, for services in working 
 farm and managing property, can be proved by declaration and admission ; Todd 
 v. Bettingen, 98 Minn. 174, 107 N. W. 1049, 8 A. & E. Ann. Cas. 960, holding 
 an oral agreement to exchange stock for stock and realty is an entire contract 
 and a performance of the exchange to the extent of the stock does not take the- 
 agreement out of statute of frauds, the realty not passing by oral agreement,, 
 the whole agreement is void; Horton v. Stegmyer, 99 C. C. A. 332, 175 Fed. 700, 
 holding an oral agreement to devise real property or real and personal property 
 is void under statute of frauds, but a delivery of possession of realty to proposed 
 devisee will take promise out of the statute; Henrikson v. Henrikson, 143 Wis. 
 318, 33 L.R.A. (N.S.) 537, 127 N. W. 962, granting specific performance of oral 
 contract by one cotenant to convey his interest to another on deatli of life tenant, . 
 where grantee builds home, though he does not take possession. 
 
 Cited in note (6 L. R. A. 702) as to when promises not implied. 
 
 Distinguished in Cincinnati, S. & C. R. Co. v. Bensley, 19 L. R. A. 802, 2 
 C. C. A. 487, 6 U. S. App. 115, 51 Fed. 746. holding subscriptions to building on 
 condition of completion within specified time not enforceable on failure to com- 
 plete within such time though value of subscriber's property greatly enhanced . 
 by its construction. 
 Implication of agreement to pay for services of relative. 
 
 Cited in notes (11 L.R.A.(N.S.) 885, 895, 898) on implication of agreement 
 to pay for services of relative or member of household; (133 Am. St. Rep. 252,. 
 255) on presumption of gratuitous services by relations. 
 
 4 L. R. A. 60, RENO SMELTING MILL. & REDUCTION WORKS v. STEVEN- 
 SON, 20 Nev. 269, 19 Am. St. Rep. 364, 21 Pac. 317. 
 Adoption of English common law. 
 
 Cited in notes (22 L. R. A. 503, 505, 506) on adoption of the common law in 
 the United States. 
 Riparian rights. 
 
 Approved in Twaddle v. Winters, 29 Nev. 105, 85 Pac. 280, holding that land 
 patents, issued prior to congressional adoption of doctrine of prior appropria- 
 tion of running water in Nevada do not give such patentees in that state com- 
 mon law riparian rights to water previously appropriated. 
 
 Cited in Union Mill & Min. Co. v. Dangberg, 81 Fed. 92; Bliss v. Grayson, 24 
 Nev. 456, 56 Pac. 231; Drake v. Earhart, 2 Idaho, 724, 23 Pac. 541, holding- 
 
GOT L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 65 
 
 rights of riparian proprietor limited by prior appropriation; Slattery v. Harley, 
 58 Xeb. 577, 79 X. W. 151, raising, without deciding, rights of riparian owner 
 as against use for irrigation; Willey v. Decker, 11 \Vyo. 517, 73 Pac. 210, hold- 
 ing common-law doctrine as to riparian rights inapplicable to conditions in 
 Wyoming; Fitzpatrick v. Montgomery, 20 Mont. 186, 63 Am. St. Rep. 622, 50 
 Pac. 416, upholding doctrine of right to water by prior appropriation'; McFarland 
 v. Alaska Perseverance Min. Co. 3 Alaska, 331, holding that where a riparian 
 right claimed is repugnant to the doctrine of appropriation unsuited to 
 conditions of the country and in direct conflict with rules and usages based 
 thereon it will not be allowed; Boquillas Land & Cattle Co. v. St. David Co-op. 
 Commercial & Development Co. 11 Ariz. 135, 89 Pac. 504, holding that the com- 
 mon law rule that only riparian owners could divert water from streams for 
 irrigation purposes being inconsistent with the local Bill of Rights does not 
 apply; Drake v. Earhart, 2 Idaho, 757, 23 Pac. 541, holding that under act of Con- 
 gress patentees of land take subject to rights of prior appropriator of water in 
 stream running through such land to extent of such appropriation; Hough v. 
 Porter, 51 Or. 386, 98 Pac. 1083, as overruling an earlier Xevada case adhering 
 to common-law doctrine of riparian rights and establishing the doctrine of prior 
 appropriation; Anderson v. Bassman, 140 Fed. 21, as approving a holding that 
 the doctrine of prior appropriation without respect to location of lands, is in 
 force in Xevada and that common-law rule of riparian rights does not apply. 
 
 Cited in notes (8 L. R. A. 578) on property in unnavigable lakes; (30 L. R. 
 A. 679) on right of prior appropriator of water; (20 Am. St. Rep. 225) on ri- 
 parian rights; (25 Am. St. Rep. 254) on rights of prior appropriator of water; 
 (10 Eng. Rul. Cas. 218) on riparian owner's right to use of stream. 
 
 Distinguished in Huber v. Merkel, 117 Wis. 365, 62 L. R. A. 594, 98 Am. St. 
 Rep. 933, 94 N. W. 354, denying power of legislature to impair right of owner 
 of land to water from artesian well. 
 
 Disapproved in Clark v. Cambridge & A. Irrig. & Improv. Co. 45 Xeb. 806, 64 
 X. W. 239, and Lone Tree Ditch Co. v. Cyclone Ditch Co. 15 S. D. 529, 91 X. W. 
 352, holding common-law riparian rights prevail, as modified by statute; Craw- 
 ford Co. v. Hall, 67 Xeb. 335, 60 L. R. A. 896, 108 Am. St. Rep. 647, 93 X. W. 
 781, holding that common-law doctrine respecting riparian rights prevails in 
 Nebraska. 
 
 4 L. R. A. 65, STATE ex rel. HOLT v. DEXNY, 118 Ind. 449, 21 N. E. 274. 
 Authenticity of law. 
 
 Cited in State ex rel Benton County v. Boice, 140 Ind. 513, 40 N. E. 113, hold- 
 ing terms of authenticated, enrolled bill conclusive: Western U. Teleg. Co. v. 
 Taggart, 141 Ind. 284, 60 L. R. A. 683, 40 X. E. 1051. holding authenticated, en- 
 rolled bill conclusive evidence of due enactment. 
 
 Cited in note (40 L.R.A. (X.S.) 34, 38) on conclusiveness of enrolled bill. 
 
 Distinguished in State ex rel. Coffin v. Howell. 26 Xev. 102, 64 Pac. 466, hold- 
 ing bill passed over governor's veto invalidated by failure of presiding officers to 
 sign it. 
 "Town" inclusive of cities. 
 
 Cited in Indianapolis v. Higgins, 141 Ind. 9, 40 N. E. 671, holding cities in- 
 cluded within statute for protection of sidewalks in "towns." 
 Seimrtition of Kovernmental powers. 
 
 Cited in Parker v. State, 135 Ind. 536, 23 L. R. A. 859, 35 X. E. 179, holding- 
 stay pending appeal in capital case not within governor's constitutional power to 
 reprieve; Hovey v. State, 127 Ind. 598, 11 L. R. A. 767, 22 Am. St. Rep. 663, 27 
 N. E. 175, holding mandamus will not lie to compel action by chief executive of 
 
4 L.R.A. 65] L. R. A. CASES AS AUTHORITIES. 608 
 
 state; State ex rel. Young v. Brill, 100 Minn. 526, 111 X. W. 639, 10 A. & E. 
 Ann. Cas. 425, holding a statute, unconstitutional, providing for appointment by 
 court of public officers other than those necessarily connected with the judi- 
 ciary, such appointments belonging to another department of government. 
 Legislative appointments. 
 
 Cited in State ex rel. Yancey v. Hyde, 121 Ind. 29, 22 N. E. 644, holding gov- 
 ernor may fill state office upon creation by legislature, which attempted to put 
 power of appointment thereto in its appointee; State ex rel. Collett v. Gorby, 122 
 Ind. 20, 23 N. E. 678 (distinguished in dissenting opinion, p. 30), majority hold- 
 ing administrative state office, to be rilled indefinitely by legislative appoint- 
 ment, vacant at creation and subject to governor's appointing power; State 
 ex rel. Worrell v. Peelle, 121 Ind. 506, 22 N. E. 654, and French v. State, 141 Ind. 
 624, 29 L. R. A. 115, 41 N. E. 2, holding that legislature may appoint to office 
 existing, but appointment to which not provided for, at adoption of constitu- 
 tion authorizing choice in manner as now or hereafter provided by law, and 
 which otherwise refers to legislative appointments; State ex rel. Taylor v. Mount, 
 151 Ind. 687, 51 N. E. 417, holding legislative extension of terms of incumbents 
 not within constitutional provision for choosing all officers in manner as may 
 be prescribed by law; State ex rel. Lamar v. Dillon, 32 Fla. 593, 22 L. R. A. 141, 
 14 So. 383, holding legislative designation of commissioners to prepare for, hold, 
 and declare result of an initial municipal election, not executive function ; Purnell 
 v. Mann, 105 Ky. 116, 50 S. W. 264 (dissenting opinion), majority holding selec- 
 tion of commissioners for coming election, by legislative appointees, not execu- 
 tive function under constitutional power to provide for voting, determining elec- 
 tions, and making certificates; Pratt v. Breckinridge, 112 Ky. 11, 65 S. W. 136, 
 holding void, provision in law r for appointment of election commissioners by 
 legislature; Richardson v. Young, 122 Tenn. 502, 125 S. W. 664, holding valid, act 
 authorizing legislature to appoint board of elections. 
 
 Cited in footnotes to People ex rel. Richardson v. Henderson. 22 L. R. A. 751, 
 which denies inherent power of the executive to appoint officers ; Fox v. McDonald, 
 21 L. R. A. 529, which holds power to appoint to office to fill vacancy not inherent 
 in governor; Johnson v. State, 38 L. R. A. 373, which holds statute depriving 
 governor of power to appoint judges of inferior court by changing its name 
 void. 
 Rigrht of local self-government. 
 
 Cited in State ex rel. Geake v. Fox, 158 Ind. 128, 56 L. R. A. 895, 63 N. E. 19, 
 holding municipality's fundamental rights infringed by gubernatorial appoint- 
 ment of fire and inspection commissioners; State ex rel. Atty. Gen. v. Moores, 55 
 Neb. 511, 41 L. R. A. 634, 76 N. W. 175 (limited in dissenting opinion), holding 
 legislature cannot deprive state of local self-government by authorizing governor 
 to appoint metropolitan fire and police commissioners; Lexington v. Thompson, 
 113 Ky. 551, 57 L.R.A. 778, 101 Am. St. Rep. 361, 68 S. W. 477, hold- 
 ing legislative determination of salaries of municipal firemen void as per- 
 taining to local government; State ex rel. Clark v. Haworth, 122 Ind. 510, 
 7 L. R. A. 256, 23 X. E. 946 (dissenting opinion), majority holding uniform 
 text-book law no infringement upon right of local self-government; State ex rel. 
 Law v. Blend, 121 Ind. 518, 16 Am. St. Rep. 411, 23 X. E. 511, uphold- 
 ing act of legislature creating board of metropolitan police in all cities of 
 specified size; Morris v. Switzerland County, 131 Ind. 287, 31 N. E. 77, 
 holding county not liable for improper management of prison, unless statu- 
 tory; Jasper County v. Allman, 142 Ind. 578, 39 L. R. A. 62, 42 N. E. 206, holding 
 county not liable for negligent maintenance of bridge;, unless statutory; State 
 
609 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 65 
 
 ex rel. Workman v. Goldthait, 172 Ind. 219, 87 X. E. 133, holding that the 
 legislature may properly require and specify qualifications to holding any public 
 office not provided for by state constitution, such as county assessor or council- 
 man; State ex rel. Gerry v. Edwards, 42 Mont. 147, 32 L.R.A.(X.S.) 1082, 111 
 Pac. 734. Ann. Cas. 1912A, 1063, holding that park board appointed by governor 
 is not corporate authority of municipality; State ex rel. Williams v. Samuelson, 
 131 Wis. 515, 111 X. W. 712, holding that a legislative requirement of four 
 years residence in county for a candidate for office of county supervisor of as- 
 sessments, an office not provided for by constitution, is constitutional; Ex parte 
 Lewis, 45 Tex. Crim. Rep. 20, 108 Am. St. Rep. 929, 73 S. W. 811, holding that 
 a statute providing for appointment of three out of five commissioners as a 
 city governing board by the governor is a violation of the constitutional right 
 to local self government; Ex parte Anderson, 46 Tex. Crim. Rep. 390, 81 S. W. 
 973, on construction of constitution so as not to be a surrender of right to 
 local self government but as a restriction to the powers delegated therein. 
 
 Cited in footnotes to State ex rel. McCausland v. Freeman, 47 L. R. A. 67, 
 which sustains statute arbitrarily establishing high school and requiring its 
 maintenance by people of county; Davock v. Moore, 28 L. R. A. 783, which sus- 
 tains legislative power to provide for city board of health with power to incur 
 expenses without city's consent. 
 
 Cited in notes (15 L.R.A. (X.S.) 576) on state control of municipal fire de- 
 partment; (32 L.R.A. (X.S.) 534) on local option law as affecting charter power 
 of municipality to regulate liquor traffic. 
 
 Uistinginshed in Cones v. Benton County, 137 Ind. 407, 37 X. E. 272, holding 
 county not impliedly liable for negligence in construction and repair of free 
 gravel road ; State ex rel. Hendricks v. Marion County, 170 Ind. 603, 82 X. E. 482, 
 holding that a statute taking construction of public highways from control of 
 county commissioners not a violation of constitutional right to local self govern* 
 ment, such right not applying to counties as a governmental unit; Brown v. 
 Galveston. 97 Tex. 12, 75 S. W. 488, denying the inherent right of the people to 
 local self government based on history and tradition alone and not carried 
 into the Constitution. 
 State control of police. 
 
 Cited in State ex rel. Terre Haute v. Kolsem, 130 Ind. 436, 14 L. R. A. 568, 29 
 N. E. 595, upholding power of legislature to provide for appointment to munici- 
 pal board of police; State ex rel. Law v. Blend, 121 Ind. 521, 16 Am. St. Rep. 
 411, 23 X. E. 511, holding state may prescribe manner of selecting municipal 
 police force; Horton v. Xewport, 27 R. I. 291, 1 L.R.A.(N.S.) 518, 61 Atl. 759, 
 S A. & E. Ann. Cas. 1097, holding legislative regulation of city police in so far 
 .8 it constitutes a part of the state government, not unconstitutional as a 
 deprivation of local self government. 
 Vneonstitutionality of portion of statute. 
 
 Cited in Morris v. Powell, 125 Ind. 296, 9 L. R. A. 331, 25 N. E. 221, holding 
 section void because of unconstitutionally of certain provisions therein; Griffin 
 v. State, 119 Ind. 522, 22 X. E. 7, holding act creating system of court reporting 
 invalid because based upon unconstitutional requirement that judges prepare 
 syllabi; State ex rel. Geake v. Fox, 158 Ind. 128, 56 L. R. A. 895, 63 X. E. 19, 
 holding act for appointment of board for fire and police departments void for in- 
 validity of former; State v. Gerhardt, 145 Ind. 486, 33 L. R. A. 329, 44 X. E. 469 
 (dissenting opinion), majority holding statute not invalid because of unconstitu- 
 tionally of independent provisions; State ex rel. Law v. Blend, 121 Ind. 521, 
 16 Am. St. Rep. 411, 23 X. E. 511, holding act creating board of metropolitan 
 police valid, although provision for nonpartisan appointments is unconstitu- 
 L.R.A. Au. Vol. I. 39. 
 
4 L.R.A. 65] L. R. A. CASES AS AUTHORITIES. 010 
 
 tional; Northern P. R. Co. v. Barnes, 2 X. D. 385, 51 X. W. 386 (dissenting 
 opinion), as to rule that all parts of act so dependent, conditional, or connected 
 as to have been intended as a whole, must fall if part is unconstitutional; Swartz 
 v. Lake County, 158 Ind. 152, 63 X. E. 31, holding entire act not invalidated by 
 unconstitutional amendment; Xewton County v. State, 161 Ind. 627, 69 X. E. 442, 
 holding statute for relocation of county seats invalidated by unconstitutional 
 provision relative to building courthouses; Owen County v. Spangler, 159 Ind. 
 582, 65 N. E. 743, holding statute to validate bond issue rendered void by un- 
 constitutionally of dependent portions thereof. 
 Legislative restrictions on right to hold office. 
 
 Cited in notes (55 Am. St. Rep. 374) on legislative restrictions on right to 
 hold office; (32 L.R.A. (N".S.) 835) on constitutionality of statute making resi- 
 dence qualification of public officer. 
 Appointment from two parties. 
 
 Cited in State ex rel. Law v. Blend, 121 Ind. 522, 16 Am. St. Rep. 411, 23 X. E. 
 511, holding provision for appointment of police officers and patrolmen equally 
 from two leading political parties invalid for disfranchisement; Rathbone v. 
 Wirth, 150 N. Y. 492, 34 L. R. A. 420, footnote, p. 408, 45 N. E. 15, which holds 
 void statute for bipartisan police board of four members, to be selected by all 
 members of common council voting for two members only; Shaw v. Marshalltown, 
 131 Iowa, 150, 10 L.R.A. (N.S.) 835, 104 X. W. 1121, 9 A. & E. Ann. Cas. 1039 
 (dissenting opinion), on validity of appointment of city police and firemen from 
 two leading political parties of city; Render v. Louisville, 142 Ky. 416, 32 
 L.R.A. (X.S.) 534, 134 S. W. 458, holding valid, provision that members of munic- 
 ipal hospital commission shall be chosen from two dominant political parties. 
 Title of act. 
 
 Cited in footnote to State v. Snow, 11 L. R. A. 355, which holds prohibition 
 of sale of article intended for use as lard, containing other ingredients than 
 swine's flesh within title. 
 
 Cited in note (4 L.R.A. 93) on construction of constitutional requirement that 
 title of act must embrace its subject. 
 
 4 L. R. A. 79, STATE ex rel. JAMESON v. DENNY, 118 Ind. 382, 21 N. E. 252. 
 Local self-government. 
 
 Cited in State ex rel. Holt v. Denny, 118 Ind. 480, 4 L. R. A. 79, 21 X. E. 
 274 (dissenting opinion), and Evansville v. State, 118 Ind. 448, 4 L. R. A. 101, 
 21 N. E. 267 (dissenting opinion), majority holding in each case that act placing 
 police and fire departments of cities under commissioners elected by legislature 
 void; State ex rel. Atty. Gen. v. Moores, 55 Xeb. 508, 41 L. R. A. 633, 76 X. \V. 
 175, holding act conferring on governor right to appoint city fire and police com- 
 missioners invalid; State ex rel. Geake v. Fox, 158 Ind. 128, 56 L. R. A. 895, 63 
 N. E. 19, holding power to control city fire department cannot be vested in board 
 appointed by governor; State ex rel. White v. Barker, 116 Iowa, 104, 57 L. 1!. A. 
 250, 93 Am. St. Rep. 222, 89 N. W. 204, holding that management of water system 
 cannot be taken from municipality; Lexington v. Thompson, 113 Ky. 551, 57 L. R. 
 A. 778, 68 S. W. 477, holding legislature cannot fix salaries of city firemen r 
 Forsyth v. Hammond, 18 C. C. A. 179, 34 U. S. App. 352, 71 Fed. 446, holding act 
 giving right to appeal to courts from order of county commissioners enlarging 
 city boundaries unconstitutional; Rathbone v. Wirth, 6 App. Div. 291, 40 X. Y. 
 Supp. 535, holding act giving minority equality with majority in electing police 
 commissioners unconstitutional: State ex rel. Clark v. Haworth. 122 Ind. 509, T 
 L. R. A. 255, 23 N. E. 946 (dissenting opinion), majority act prescribing text- 
 
611 L. R. A. CASES AS AUTHORITIES. [4 L.R.A, 79 
 
 books for public schools, and regulating method of procuring them, valid; More- 
 land v. Millen, 126 Mich. 398, 85 N. W. 882, upholding act so far as it created 
 department of public works for city and provided for appointment of head there- 
 of by the mayor; Ex parte Corliss, 16 N. D. 478, 114 N. W. 962, on the implied 
 right of local self government as applied to cities and towns; Ex parte Anderson, 
 46 Tex. Crim. Rep. 394, 81 S. W. 973; McKinster v. Sager, 163 Ind. 675, 68 L.R.A. 
 (X.S.) 276, 106 Am. St. Rep. 268, 72 N. E. 854, on the rule that powers not 
 delegated by constitution remain by implication in the people; Lexington v. 
 Thompson, 113 &y. 551, 57 L.R.A. 775, 101 Am. St. Rep. 361, 68 S. W. 477, hold- 
 ing legislative determination of salaries of municipal fireman void as pertaining 
 to local government; State ex rel. Dithmar v. Bunnell, 131 Wis. 215, 110 N. W. 
 177, 11 A. & E. Ann. Cas. 560, holding that legislature may not bar a person 
 elected as prescribed by law and appoint a man in his place, though such body 
 has the right to prescribe laws for the election or appointment; Hayes' Petition, 
 139 Wis. 169, 120 N. W. 834, holding that the policy of the law is to leave 
 local matters respecting the opening, regulating and vacating of streets to the 
 local authorities. 
 
 Cited in footnotes to Davock v. Moore, 28 L. R. A. 783, which sustains legis- 
 lative power to provide for city board of health with power to incur expenses 
 without city's consent; State ex rel. McCausland v. Freeman, 47 L. R. A. 67, 
 which sustains statute arbitrarily establishing high school and requiring its 
 maintenance by people of county; Rathbone v. Wirth, 34 L. R. A. 408. which 
 holds void statute for bipartisan police board of four members, to be selected by 
 all members of common council voting for two members only. 
 
 Cited in note (48 L. R. A. 480) on power of legislature as to officers and local 
 administration of municipalities. 
 
 Distinguished in Newport v. Horton, 22 R. I. 207, 50 L. R. A. 338, 47 Atl. 312, 
 holding act providing for appointment by governor of police commissioners for 
 city valid: State ex rel. Terre Haute v. Kolsem, 130 Ind. 436, 14 L. R. A. 568, 
 29 X. E. 595, holding statute providing for appointment of police commissioners 
 by state officers not invasion of local autonomy ; State ex rel. Hendricks v. Marion 
 County, 170 Ind. 603, 82 N. E. 482, holding a statute taking control of public 
 highways from board of county commissioners, not a violation or right to local 
 self government, such rights applying only to towns and cities. 
 
 Not followed in Americus v. Perry, 114 Ga. 879, 57 L. R. A. 234, 40 S. E. 
 1004, holding that legislature may vest control of city police in board not elected 
 by city. 
 Independence of governmental branches. 
 
 Cited in Hovey v. State, 127 Ind. 598, 11 L. R. A. 767, 22 Am. St. Rep. 663, 
 27 N. E. 175, holding that courts cannot compel performance of executive act by 
 governor; Parker v. State, 135 Ind. 536, 23 L. R. A. 859, 35 N. E. 179, holding 
 stay of execution in capital case by court pending appeal not usurpation of gov- 
 ernor's power to reprieve; Purnell v. Mann, 105 Ky. 116, 50 S. W. 264 (dissenting 
 opinion), majority holding appointment of county election commissioners by 
 commission appointed by legislature no encroachment upon executive powers; 
 Langenberg v. Decker. 131 Ind. 479, 16 L. R. A. 112, 31 N. E. 190, holding power 
 to punish for contempt not conferable on tax commissioners; State ex rel. Terre 
 Haute v. Kolsem, 130 Ind. 442, 14 L. R. A. 570, 29 N. E. 595, holding necessity 
 for special law a legislature question not reviewable by courts; People v. Sals- 
 bury. 134 Mich. 546, 96 N. W. 936, holding a city attorney to be an executive 
 or judicial officer within the meaning of statute providing punishment for ac- 
 ceptance of bribes by such officers. 
 
4 L.R.A. 79] L. R A. CASES AS AUTHORITIES. U12 
 
 Power of appointing officers. 
 
 Cited in State ex rel. Harley v. Lindemann, ]32 Wis. 52, 111 N. W. 214, holding 
 void, act providing for appointment by circuit judges of city school directors. 
 
 Cited in footnotes to Fox v. McDonald, 21 L. R. A. 529, which holds power to 
 appoint to office to fill vacancy not inherent in governor; People ex rel. Richard- 
 son v. Henderson, 22 L. R. A. 751, which denies inherent power of the executive 
 to appoint officers; Johnson v. State, 38 L. R. A. 373, which holds statute de- 
 priving governor of power to appoint judges of inferior court by changing its 
 name void. 
 
 Cited in notes (16 L.R.A. 737) on constitutional power of courts or judges to 
 appoint officers; (13 Am. St. Rep. 132, 146) on legislative power to appoint to 
 office. 
 Legislature's power of appointment. 
 
 Cited in State ex rel. Worrell v. Peelle, 121 Ind. 506, 22 N. E. 654, and State 
 ex rel Yancey v. Hyde, 121 Ind. 36, 22 N. E. 644, holding that constitutional 
 provision conferring upon legislature power to prescribe manner of, does not in- 
 clude power of, appointment; State ex rel. Yancey v. Hyde, 121 Ind. 31, 22 N. E, 
 644, holding that legislature cannot fill office created by it, unless incident to legis- 
 lative power; State ex rel. Collett v. Gorby, 122 Ind. 19, 23 N. E. 678 (distin 
 guished in dissenting opinion, p. 30), holding that legislature cannot appoint 
 administrative state officer; State ex rel. Taylor v. Mount, 151 Ind. 687, 51 N. E. 
 417, holding that legislature cannot extend term of judges theretofore elected; 
 Pratt v. Breckinridge, 112 Ky. 11, 65 S. W. 136, holding void, provision in law 
 for appointment of election commissioners by legislature; Richardson v. Young, 
 122 Tenn. 502, 125 S. W. 664 ; holding valid, act authorizing legislature to 
 appoint board of elections. 
 
 Distinguished in French v. State, 141 Ind. 624, 29 L. R. A. 115, 41 N. E. 2, 
 holding that constitutional provision permitting legislature to prescribe manner 
 of appointing officers authorizes designation of functionary to make appointment; 
 Hovey v. State, 119 Ind. 390, 21 N. E. 890. holding legislature may appoint of- 
 ficers of state benevolent institutions. 
 Review of constitutional questions by court*. 
 
 Cited in Henderson v. State, 137 Ind. 557, 24 L. R. A. 473, 36 N. E. 257, hold- 
 ing that courts will pass upon constitutional question only when necessary to 
 decision. 
 
 Cited in notes (4 L. R. A. 65, 4 L. R. A. 93) on constitutional construction. 
 Health board must authorize all expenditures. 
 
 Cited in Martin v. Montgomery County, 27 Ind. App. 100, 60 N. E. 998, holding 
 that executive officer of health board cannot, without authority, incur indebt- 
 edness. 
 
 4 L. R. A. 93, EVANSVILLE v. STATE, 118 Ind. 426, 21 N. E. 267. 
 Legislative right to determine necessity for general law. 
 
 Cited in Vigo County v. Davis. 136 Ind. 543, 22 L. R. A. 527, 36 N. E. 141, 
 holding act permitting county commissioners within certain limits to fix compen 
 nation of judges, constitutional; State ex rel. Terre Haute v. Kolsem, 130 Ind. 
 436, 14 L. R. A. 569, 29 N. E. 595, holding legislature proper judge as to whether 
 law could properly be made general and uniform; Indianapolis v. Navin, 151 Ind. 
 155, 41 L. R. A. 343, 47 N. E. 525, holding that whether act relating to subject 
 not enumerated in 23, art. 4, can be made general, question for legislature; Ed- 
 monds v. Herbrandson, 2 N. D. 282, 14 L. R, A. 730, 50 N. W. 970, holding it a 
 purely legislative question whether general or special law should be enacted under 
 
013 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 93 
 
 Const, art. 2, 70; Stuart v. Kirley, 12 S. D. 257, 81 N. VV. 147, holding that 
 legislature must determine whether general law can be made applicable to subject 
 unspecified in Constitution; Smith v. Indianapolis Street R. Co. 158 Ind. 437, 
 63 N. E. 849, holding act of legislature in passing unforbidden special law not 
 reviewable; State ex rel. Smith v. Brown, 24 Okla. 445, 103 Pac. 762, holding 
 that what can be accomplished by general or special legislation is left to leg- 
 islature for determination, which is not reviewable by courts. 
 
 Cited in notes (12 Am. St. Rep. 827; 15 Am. St. Rep. 75) on province of leg- 
 islature to determine whether general or special statute should be enacted; (03 
 Am. St. Rep. 108) on constitutional inhibition against special legislation where 
 general law can be made applicable. 
 Granting of special privilege** or immunities. 
 
 Cited in State ex rel. Churchill v. Bemis, 45 Neb. 737, 64 N. W. 348, upholding 
 act providing for appointment of at least one of three commissioners from each 
 of two leading political parties; Rathbone v. Wirth, 150 N. Y. 485, 34 L. R. A. 
 418, footnote p. 408, 45 N. E. 15, Affirming 6 App. Div. 294, 40 N. Y. Supp. 535, 
 holding restriction of eligibility to office of police commissioners to two political 
 parties unconstitutional ; Bowden v. Bedell, 68 N. J. L. 453, 53 Atl. 198, holding 
 unconstitutional act limiting membership in board as to political parties; State 
 v. Garbroski, 111 Iowa, 499, 56 L. R. A. 572, 82 Am. St. Rep. 524, 82 N. W. 959, 
 holding exemption of Union soldiers from payment of license required of others 
 in like occupations unconstitutional; Shaw v. Marshalltown, 131 Iowa, 149, 10 
 L.R.A. (N.S.) 835, 104 N. W. 1121, 9 A. & E. Ann. Cas. 1039 (dissenting opinion) 
 on restriction of appointments to members of specified political parties; Render v. 
 Louisville, 142 Ky. 416, 32 L.R.A. (N.S.) 534, 134 S. W. 458, upholding pro- 
 vision that members of municipal hospital commission shall be chosen from two 
 dominant political parties. 
 
 Cited in footnote to Rathbone v. Wirth, 34 L. R. A. 408, which holds void, 
 statute for bipartisan police board of four members to be selected by all members 
 of common council voting for two members only. 
 
 Cited in notes (14 L.R.A. 581) on constitutional equality of privileges, im- 
 munities, and protection; (32 L.R.A. (N.S.) 835) on constitutionality of statute 
 making residence qualification of public officer; (55 Am. St. Rep. 373) on legis- 
 lative restrictions on right to hold office. 
 
 Distinguished in McCarter v. McKelvey, 78 N. J. L. 7, 138 Am. S. Rep. 583, 
 74 Atl. 316, upholding statute prohibiting appointment of more than a certain 
 proportion of members of municipal board from same political party. 
 
 Disapproved in State ex rel. Jones. v. Sargent, 145 Iowa, 307, 27 L.R.A. (N.S.) 
 727, 139 Am. St. Rep. 439, 124 N. W. 339, holding that a residential qualification 
 for the holding of an office imposed by legislature is not unconstitutional. 
 Right of local self-government. 
 
 Cited in Mode v. Beasley, 143 Ind. 315, 42 N. E. 727, upholding power of leg- 
 islature to relocate county seat; State ex rel. Law v. Blend, 121 Ind. 518, 16 Am. 
 St. Rep. 411, 23 N. E. 511, upholding act of legislature, creating board of metro- 
 politan police in all cities of specified size; Woods v. McCay, 144 Ind. 323, 33 L. 
 R. A. 99, 43 N. E. 269, upholding act creating court for three designated counties; 
 State ex rel. Clark v. Haworth, 122 Ind. 510, 7 L. R. A. 256, 23 N. E. 946 (dis- 
 senting opinion), majority holding power over schools exclusively legislative: 
 State ex rel. Geake v. Fox, 158 Ind. 128, 56 L. R. A. 895, 63 N. E. 19, holding that 
 legislature cannot authorize governor to appoint board to control municipal fire 
 department; Ex parte Corliss, 16 N. D. 478, 114 N. W. 962, on the implied right 
 of local self government as applied to cities and towns; McDonald v. Louisville, 
 113 Ky. 437, 68 S. W. 413, holding that a statute inconsistent with a local 
 
 I 
 
4 L.R.A. 93] L. R. A. CASES AS AUTHORITIES. 614 
 
 discretionary power conferred by charter on such locality is invalid; Lexington 
 v. Thompson, 113 Ky . 551, 57 L.R.A. 775, 101 Am. St. Rep. 361, 68 S. W. 477. 
 holding legislative fixing of salaries of municipal firemen void as pertaining to 
 local government; Horton v. Newport, 27 R. I. 291, 1 L.R.A. (N.S.) 518, 61 Atl. 
 759, 8 A. & E. Ann. Cas. 1097, holding legislative regulation of city police in so 
 far as it constitutes a part of the state government not invalid as pertaining 
 to local government. 
 
 Cited in footnote to State ex rel. McCausland v. Freeman, 47 L. R. A. 67, which 
 sustains statute arbitrarily establishing high school and requiring its maintenance 
 by people of county. 
 
 Cited in notes (1 L.R.A. (N.S.) 515) on right of local self-government; legis- 
 lative regulation of municipal officers; (15 L.R.A. (N.S.) 576) on state control 
 of municipal fire department. 
 
 Distinguished in State ex rel. Hendricks v. Marion County, 170 Ind. 603, 82 
 N. E. 482, holding a statute declaring manner of obtaining and improving public 
 highways, leaving out of consideration county boards of commissioners not in- 
 valid as pertaining to self-government, counties as municipalities not having 
 self-government rights. 
 
 Disapproved in Americus v. Perry, 114 Ga. 879, 57 L. R. A. 234, 40 S. E. 1004, 
 holding Constitution does not guarantee to municipalities absolute right of self- 
 government. 
 Metropolitan police legiHlation. 
 
 Cited in State ex rel. Atty. Gen. v. Moores, 55 Neb. 511, 41 L. R. A. 634, 70 X. 
 W. 175, holding that legislature cannot confer upon governor power to appoint 
 fire and police commissioners for metropolitan cities; Arnett v. State, 168 Ind. 
 182, 8 L.R.A. (N.S.) 1193, 80 N. E. 153, holding a statute providing a metropoli- 
 tan police force for certain cities is not unconstitutional as pertaining to 
 self-government because it cast burden of supporting the police system on the 
 municipality and denied its control over expenditure of funds in maintaining it. 
 Legislative, executive, and judicial powers. 
 
 Cited in Hovey v. State, 127 Ind. 598, 11 L. R. A. 767, 22 Am. St. Rep. 663, 27 
 N. E. 175, and Parker v. State, 135 Ind. 536, 23 L. R. A. 859, 35 N. E. 179, hold- 
 ing legislative, executive, and judicial powers equally co-ordinate and independ- 
 ent; Sluder v. St. Louis Transit Co. 189 Mo. 149, 5 L.R.A.(N.S.) 214, 88 S. \\ . 
 648, on the meaning and definition of "legislative power"; Oklahoma City v. 
 Shields, 22 Okla. 305, 100 Pac. 559; holding that the question whether or not a 
 measure is immediately necessary for the preservation of the public peace, health 
 or safety, rests solely with the legislature; Richardson v. Young, 122 Tenn. 
 502, 125 S. W. 664, holding valid, act authorizing legislature to appoint board 
 of elections. 
 
 Cited in footnotes to Fox v. McDonald, 21 L. R. A. 529, which holds power to 
 appoint to office to fill vacancy not inherent in governor; People ex rel. Richard- 
 son v. Henderson, 22 L. R. A. 751, which denies inherent power of the executive 
 to appoint officers; Johnson v. State, 38 L. R. A. 373, which holds statute depriv- 
 ing governor of power to appoint judges of inferior court by changing its name 
 void; Davock v. Moore, 28 L. R. A. 783, which sustains legislative power to pro- 
 vide for city board of health with power to incur expenses without city's consent. 
 
 Cited in notes (16 L. R. A. 737) on constitutional power of courts or judges to 
 appoint officers; (17 L. R. A. 842) on implied restrictions on the power of legis- 
 lature-: i 48 L. R. A. 481), on power of the legislature to impose burdens upon 
 municipalities and to control their local administrations and property; (13 Am. 
 St. Rep. 132) on legislative power to appoint to office. 
 
615 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 93 
 
 Lack of power in legislature to fill vacant offices. 
 
 Cited in State ex rel. Yancey v. Hyde, 121 Ind. 26, 22 N. E. 644, holding act 
 providing for appointment of chief of geological department by director elected 
 by legislature unconstitutional; State ex rel. Worrell v. Peelle, 121 Ind. 506, 22 
 N. E. 654, holding legislature cannot elect to state office; State ex rel. Collett v. 
 Gorby, 122 Ind. 20, 23 X. E. 678, holding that governor could appoint director of 
 geology to fill vacancy until general election by people; State ex rel. Taylor v. 
 Mount, 151 Ind. 687, 51 N. E. 417, holding provisions in law continuing judges 
 in office beyond time for which elected, unconstitutional. 
 Appointment of officers not specified in Constitution. 
 
 Cited in French v. State, 141 Ind. 624, 29 L. R. A. 115, 41 N. E. 2, holding that 
 general assembly may appoint to all offices existing, and not otherwise provided 
 for on adoption of Constitution; State ex rel. Terre Haute v. Kolsem, 130 Ind. 
 436, 14 L. R. A. 568, 29 N. E. 595, holding that legislature has power to provide 
 for appointment of municipal board of police; State v. Burnett, 119 Ind. 392, 21 
 N. E. 972 (dissenting opinion), majority holding legislature may appoint and 
 prescribe qualifications of governing officers of benevolent institutions of state; 
 State ex rel. Lamar v. Dillon, 32 Fla. 593, 22 L. R. A. 141, 14 So. 383, upholding 
 power of legislature to name temporary election commissioners; Purnell v. Mann. 
 105 Ky. 116. 50 S. W. 264 (dissenting opinion), majority upholding act providing 
 for selection of county commissioners of election by state commission selected by 
 legislature; Pratt v. Breckinridge, 112 Ky. 11, 65 S. W. 136, holding void, provi- 
 sion in law for appointment of election commissioners by legislature. 
 
 Not followed in Ware v. Fitchburg, 200 Mass. 72, 85 N. E. 951, holding that a 
 statute prescribing who shall be agents of city in carrying out a charitable trust 
 in favor of city and mode of their selection is valid especially when expressly 
 accepted by city. 
 Inhibitions by implication. 
 
 Cited in Denney v. State, 144 Ind. 513, 31 L. R. A. 730, 42 N. E. 929, holding 
 apportionment at time different from that specified therefor in Constitution 
 void; Capital Bank v. School Dist. No. 53, 1 N. D. 495, 48 N. W. 363, holding 
 school districts restrained from exercise of powers not specifically granted or nec- 
 essarily implied; Lexington v. Thompson, 113 Ky. 551, 57 L. R. A. 778, 101 Am. 
 St. Rep. 361, 68 S. W. 477, holding legislature cannot fix salaries of firemen in 
 municipalities; Diamond State Iron Co. v. Husbands, 8 Del. Ch. 226, 68 Atl. 240, 
 on constitutional inhibition of acts of Legislature conflicting either expressly or 
 by implication with some provision of the constitution; Ex parte Anderson, 46 
 Tex. Crim. Rep. 381, 81 S. W. 973, on the rule that powers not conferred by con- 
 stitution on the departments of government remain by implication in the people. 
 Title of net; plurality of subject. 
 
 Cited in footnotes to Thomas v. Wabash, St. L. & P. R. Co. 7 L. R. A. 145, which 
 holds provision limiting rights in water to railroad companies owning landings, 
 not within title; State v. Snow, 11 L. R. A. 355, which holds prohibition of sale 
 of article intended for use as lard, containing other ingredients than swine's flesh, 
 within title; State v. Burgdoerfer, 14 L. R. A. 846, which holds prohibition 
 against bookmaking and pool selling on events outside of state, without referring 
 to events within state, expressed by title "To Prohibit Bookmaking and Pool Sell- 
 ing;" Hronek v. People, 8 L. R. A. 837. which holds only one subject embraced in 
 sict regulating manufacture, etc., of explosives, and prescribing punishment for 
 violation of same. 
 
 Cited in notes ( 7 L. R. A. 145) on constitutional provision as to title of act; 
 <7 L. R. A. 309) on construction of railroads in streets of town or city; constitu- 
 
4 L.R.A. 93] L. R. A. CASES AS AUTHORITIES. 616 
 
 tional provisions as to title of act; (8 L.R.A. 858) on title of act; (12 Am. St. 
 Rep. 716) on title and subjectrmatter of statute. 
 Passage of law. 
 
 Distinguished in State ex rel. Coffin v. Howell, 26 Nev. 102, 64 Pac. 466, holding 
 bill passed over governor's veto invalidated by failure of presiding officers to sign it. 
 
 4 L. R. A. 101, STATE ex rel. HOVEY v. NOBLE, 118 Ind. 350, 10 Am. St. Rep. 
 
 143, 21 N. E. 244. 
 Delegation and separation of fundamental powers of government. 
 
 Cited in State ex rel. Terre Haute v. Kolsem, 130 Ind. 442, 14 L. R. A. 570, 29 
 N. E. 595, holding legislature exclusive judge as to whether general law can be 
 made applicable to metropolitan board of police; State ex rel. Yancey v. Hyde, 
 121 Ind. 30, 22 N. E. 644, holding act cannot deprive chief executive of power to 
 appoint state officer by delegating power of appointment to another officer; Cargar 
 v. Fee, 119 Ind. 538, 21 N. E. 1080, holding that temporary judge cannot delegate 
 his power; Parker v. State, 135 Ind. 538, 23 L. R. A. 860, 35 N. E. 179, upholding 
 power of appellate court to grant stay of execution pending appeal ; State ex 
 rel. Gibson v. Friedley, 135 Ind. 131, 21 L. R. A. 638, 34 N. E. 872, holding that 
 legislature cannot deprive judge of office by abolishing his judicial district; State 
 v. Runyan, 130 Ind. 209, 29 N. E. 779, holding that township trustee cannot 
 exercise functions of court; Ex partc Coombs, 38 Tex. Grim. Rep. 662, 44 S. W. 
 / 854, holding that legislature cannot devest constitutional courts of tlioir power; 
 Ex partc Ginnochio, 30 Tex. App.^ 592, 593, 18 S. W. 82, holding that legislature 
 cannot control judicial power distributed by Constitution; State v. LeClair, 86 Me. 
 530, 30 Atl. 7, holding act permitting clerk of court to make preliminary ex- 
 amination and issue warrant to seize liquor valid; Parker v. State, 133 Ind. 188, 
 18 L. R. A. 572, 32 N. E. 836, holding redistricting and apportionment acts in- 
 valid; Johnston v. State, 128 Ind. 18, 12 L. R. A. 236, 25 Am. St. Rep. 412, 27 X. 
 E. 422, holding act providing for determination of elective tie vote by lot, valid ; 
 State ex rel. Holman v. Roach, 123 Ind. 170, 24 N. E. 106, holding surveyor of 
 ditches not entitled to per diem for services performed by deputies which were 
 required to be done by himself; Chicago, K. & W. R. Co. v. Abilene Town Site Co. 
 42 Kan. 109, 21 Pac. 1112, holding validity of acts relating to condemnation com- 
 mission immaterial when parties have had full hearing before court; Forsyth v. 
 Hammond, 18 C. C. A. 179, 34 U. S. App. 552, 71 Fed. 446, holding act granting 
 appeal to courts from determination of county commissioners annexing territory 
 to city invalid; Hovey v. State, 127 Ind. 598, 11 L. R. A. 767, 22 Am. St. Rep. 
 663, 27 N. E. 175, holding governor's decision not to issue commission to one 
 claiming to be elected to office, final; Langenberg v. Decker, 131 Ind. 479, 16 L. R. 
 A. 112, 31 N. E. 190, holding power to punish for contempt to be a judicial func- 
 tion not residing in board of tax commissioners; DeVotie v. McGerr, 14 Colo. 
 581, 23 Pac. 980, holding validity of act providing for supreme court conmiission 
 not involved; State ex rel. Taylor v. Mount, 151 Ind. 686, 51 N. E. 417, holding 
 that legislature cannot extend term of elective judges; Butler v. Gage, 138 U. S. 
 59, 34 L. ed. 872, 11 Sup. Ct. Rep. 235, holding Federal question not involved in 
 relation to judicial powers of commission; Stults v. Allen County, 168 Ind. 542, 
 81 N". E. 471, 11 A. & E. Ann. Cas. 1021, holding a coroner in holding an inquest 
 not to be performing a judicial function and a county board may question the 
 necessity of an inquest; State ex rel. Walker v. Wagner, 170 Ind. 147, 82 N. E. 
 466. 15 A. & E. Ann. Cas. 1063. holding power of appointment to office not to be 
 legislative but the power to name the body or persons to make the appoint- 
 ment is legislative; Indianapolis v. State, 172 Ind. 476, 88 N. E. 687. holding 
 / an act requiring circuit courts to appoint appraisers to make reassessments on 
 
617 L. R. A. CASES AS AUTHORITIES. [4 L.RJL 101 
 
 <x>mplaint of property owners and giving their report the effect of a judgment 
 is not on interference with power of court. 
 
 Cited in footnote to Herndon v. Imperial F. Ins. Co. 18 L. R. A. 547, which de- 
 nies legislative power to give right to rehearing contrary to court rule. 
 
 Cited in notes (17 L. R. A. 842) on implied restrictions on power of legisla- 
 tures; (41 L. R. A. 570) as to when temporary absence of judge is fatal to trial. 
 
 Distinguished in People ex rel. Morgan v. Hayne, 83 Cal. 119, 7 L. R. A. 350, 
 17 Am. St. Rep. 217, 23 Pac. 1, holding act empowering court to appoint com- 
 missioners to "assist" it, valid; Van Walters v. Children's Guardians, 132 Ind. 
 569, 18 L. R. A. 432, 32 N. E. 568, holding board of children's guardians can keep 
 control of children whose custody awarded to them. 
 
 Disapproved in People ex rel. Morgan v. Hayne, 83 Cal. 119, 7 L. R. A. 350, 17 
 Am. St. Rep. 217, 23 Pac. 1, holding act empowering court to appoint commis- 
 sioners to "assist" it, valid; Fox v. McDonald, 101 Ala. 74, 21 L. R. A. 536, 46 
 Am. St. Rep. 98, 13 So. 416, holding act enabling probate judge to appoint police 
 commissioners for a city valid. 
 What powers courts have. 
 
 Cited in Hawkins v. State, 125 Ind. 572, 25 N. E. 818, holding that circuit 
 court has power to punish for contempt resistance to mandate to be enforced in 
 another county; State ex rel. Clark v. Haworth, 122 Ind. 469, 7 L. R. A. 242, 23 
 N. E. 946, holding it entirely within legislative power to enact that school books 
 shall be furnished by one making most acceptable bid; Ex parte Ginnochio, 30 
 Tex. App. 590, 18 S. W. 82, holding that judicial power is vested in criminal dis- 
 trict courts; Re Jessup, 81 Cal. 477, 22 Pac. 1028 (dissenting opinion), majority 
 holding that act giving court power to grant rehearing is valid; White County 
 v. Gwin, 136 Ind. 586, 22 L. R. A. 412, 36 X. E. 237, holding constitutional laws 
 binding on courts; White County v. Gwin, 136 Ind. 580, 22 L. R. A. 412, 36 X. K. 
 237. holding power granted to court to repair courthouse does not extend to 
 practically rebuilding it; Vigo County v. Stout, 136 Ind. 59, 22 L. R. A. 401, 35 
 N. E. 683, holding that judge can direct the running of elevator in courthouse; 
 Parker v. State, 135 Ind. 536, 23 L. R. A. 860, 35 X. E. 179, holding that court 
 can grant stay of criminal execution to enable it to investigate questions; Shu- 
 ,gart v. Miles, 125 Ind. 447, 25 X. E. 551, holding bill of exceptions granted by 
 judge appointed by court, part of record; Barnett v. State, 42 Tex. Grim. Rep. 
 -321, 62 S. W. 765 (dissenting opinion), majority upholding statute providing 
 against reversals of convictions for errors in court's charge, unless exceptions 
 reserved; Elkhart County v. Albright, 168 Ind. 578, 81 N. E. 578, holding that 
 courts although created by legislative derive their power from the constitution 
 and through their inherent power may require that which is essential to their 
 existence; Stevenson v. Milwaukee County, 140 Wis. 18, 121 X. W. 654, 17 Ann. 
 Cas. 901, holding that circuit court has inherent power to appoint necessary at- 
 tendants. 
 
 Cited in notes (22 L. R. A. 398) on power of courts to provide necessary 
 places and equipment for their business; (16 L. R. A. 737, 738) on constitu- 
 tional power of courts or judges to appoint officers; (35 Am. St. Rep. 63) on ju- 
 dicial investigation of constitutionality of legislative apportionments. 
 Creation of courts. 
 
 Distinguished in Baltimore & O. R. Co. v. Whiting, 161 Ind. 242, 68 N. E. 
 U66, holding that act conferring upon town clerk powers of justice of the peace 
 created a court. 
 Duty of court or judge. 
 
 Cited in Pennsylvania Co. v. Barton, 130 111. App. 585, holding absence of judge 
 
4 L.R.A. 101] L. 11. A. CASES AS AUTHORITIES. 618 
 
 during conclusion of trial not grounds for reversal when all parties consented 
 and no objection is raised, especially where neither party is prejudiced. 
 Source of Constitution. 
 
 Cited in Trapp v. Cook Constr. Co. 24 Okla. 854, 105 Pac. 667; Exparte Cain r 
 20 Okla. 131, 93 Pac. 974, 1 Okla. Crim. Rep. 12, on constitutions as being 
 instruments in the nature of express adoptions of approved systems and principles 
 in force and existence at the time of their adoption. 
 
 4 L. R. A. Ill, HARRISON v. HARRISON, 118 Ind. 179, 20 N. E. 746. 
 Application by banker of money due depositor. 
 
 Cited in Bedford Bank v. Acoam, 125 Ind. 585, 9 L. R. A. 560, 21 Am. St. 
 Rep. 258, 25 N. E. 713, holding that bank paying depositor's note, payable 
 there, may set off against balance on maker's account ; Shepard v. Meridian 
 Nat. Bank, 149 Ind. 547, 48 N. E. 352, holding bank knowingly receiving de- 
 posits of county clerk as such, cannot set off same against deficiency in individ- 
 ual account; State v. Beach, 147 Ind. 90, 36 L. R. A. 185, 46 N. E. 145, holding 
 that insolvent bank receiving deposit cannot apply it on depositor's unmatured 
 obligation, to avoid criminal liability for receiving deposit; O'Grady v. Stotts City 
 Bank, 106 Mo. App. 369, 80 S. W. 696, holding that bank cannot apply without 
 his consent, a depositor's money to payment of a check on which such depositor 
 is merely a guarantor; Callaham v. Bank of Anderson, 69 S. C. 383, 48 S. E. 
 293, 2 A. & E. Ann. Cas. 203 (dissenting opinion), on right of bank to apply 
 general deposit to indebtedness of depositor to bank. 
 
 Cited in footnotes to Gardner v. First Nat. Bank, 10 L. R. A. 45, which holds 
 authority given to bank to apply deposits to notes before maturity terminates 
 with death of depositor; First Nat. Bank v. Peltz, 36 L. R. A. 832, which holds 
 bank not bound to apply, to payment of note, deposit account of first indorser 
 for whose accommodation note made: Pickle v. People's Nat. Bank. 7 L. R. A. 
 93, which holds bank's acceptance of check inferred from its retention of same. 
 
 Cited in notes (9 L.R.A. 560) on set-off of unliquidated cross demands \K 
 banking; (22 Am. St. Rep. -834) on application by bank of money due depositor: 
 (111 Am. S. Rep. 423) on bankers' liens not founded on contract. 
 General rule in keeping: account with depositor. 
 
 Cited in Wasson v. Lamb, 120 Ind. 517, 6 L. R. A. 192, 16 Am. St. Rep. 342, 
 22 N. E. 729, holding bank which received and credited tax receipts as money 
 liable to depositors for so much cash ; Second Nat. Bank v. Gibboney, 43 Ind. 
 App. 497, 87 N. E. 1064, holding an entry in a pass book of a deposit is an ad- 
 mission of a debtor to holder of such book. 
 
 Cited in note (134 Am. St. Rep. 1023) on effect of balances struck in pa>- 
 books. 
 Trust in proceeds of collection by bank. 
 
 Cited in Union Nat. Bank v. Citizens' Bank, 153 Ind. 51, 54 N. E. 97, hold- 
 .ng proceeds of collection in ordinary course of dealing between banks, not pref- 
 erential as trust fund. 
 Special deposit. 
 
 Cited in Shopert v. Indiana Nat. Bank, 41 Ind. App. 477, 83 N. E. 515, hold- 
 ing that depositor may follow a deposit made under special agreement into 
 the hands of receiver and charge funds if more than the amount of deposit, wit!) 
 a trust providing that rights of third persons are not prejudiced. 
 Property in hands of receiver. 
 
 Cited in Shopert v. Indiana Nat. Bank, 41 Ind. App. 477, 83 N. E. 515, hold- 
 
619 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 117 
 
 ing that receiver takes property coming into his hands for administration sub- 
 ject to all valid legal and equitable claims. 
 
 4 L. R. A. 113, OILMAN v. JONES, 87 Ala. 691, 5 So. 785, 7 So. 48. 
 Maintenance and champerty. 
 
 Cited in Gandy v. Fortner, 119 Ala., 309, 24 So. 425, holding that purchaser 
 of remainderman's interest may maintain bill to set aside, as cloud, deed pro- 
 cured by fraud; Davis v. Webber, 66 Ark. 195, 45 L. R. A. 198, 74 Am. St. Rep. 
 81, 49 S. W. 822, holding agreement whereby attorney to receive statutory pen- 
 alty for default as fee in action on sheriff's bond, after client receives claim, 
 not void for champerty; Breeden v. Frankford Marine Acci. & Plate Glass Ins. 
 Co. 110 Mo. App. 317, 85 S. W. 930. Reversed in 220 Mo. 425, holding an insur- 
 ance company that has indemnified a mining company against liability for in- 
 juries to its employees, not liable for maintenance in defending damage suit 
 against mining company by employees; Breeden v. Frankford Marine Acci. & 
 Plate Glass Ins. Co. 220 Mo. 425, 119 S. W. 576, on the reasons for tempering 
 the common-law rules of maintenance; Smith v. Hartsell, 150 N. C. 76, 22 L.R.A. 
 (X.S.) 205, 63 S. E. 172, denning champerty and maintenance and holding that 
 an agreement by a claimant against an estate with owners of estate that he will 
 assist owners to recover the estate, they then to pay him his claim, is not cham- 
 pertous; Dent v. Arthur, 156 Mo. App. 479, 137 S. W. 285, holding not champer- 
 tous, agreement by attorney for garnishee that if latter would permit appeal 
 to be taken, former would guarantee him against loss. 
 
 Cited in footnotes to Newman v. Freitas, 50 L. R. A. 548, which holds void, 
 contract to pay attorney one third of all amounts recovered in divorce suit; 
 Reece v. Kyle, 16 L. R. A. 723, which holds attorney's agreement to advance 
 costs of collecting judgment not champertous; Croco v. Oregon Short-Line R. 
 Co. 44 L. R. A. 285, which authorizes agreement that attorney's compensation 
 shall depend on success and be payable out of proceeds of litigation; Johnson 
 v. Van Wyck, 41 L. R. A. 520, which holds agreement by attorney to prosecute 
 suit at own expense, for half of recovery, champertous; Irwin v. Curie, 58 L. 
 R. A. 830, which sustains right of person placing demands in attorney's hands 
 to recover agreed compensation though statute forbids such agreements; Dorr 
 v. C'amden, 65 L.R.A. 348, which holds that contract for contingent fee must, in 
 order to be sustained, be shown to have been entered into by the client after 
 full knowledge of the facts and circumstances justifying such contract. 
 
 Cited in notes (10 L. R. A. 190) on maintenance; (9 L. R. A. 92) on trans- 
 actions between attorney and client; (14 L. R. A. 746) on champertous con- 
 tracts of laymen; (13 Am. St. Rep. 300) on contracts of attorneys void as 
 against public policy; (28 Am. St. Rep. 757) on champerty. 
 Immaterial error by sustaining demurrer. 
 
 Cited in Louisville & N. R. Co. v. Trammell, 93 Ala. 353, 9 So. 870, holding 
 overruling demurrer to count not proved, and sustaining demurrer to special 
 plea of matter available .under general issue, not prejudicial; Laughran v. 
 Brewer, 113 Ala. 516, 21 So. 415, and Bromley v. Birmingham Mineral R. Co. 
 95 Ala. 398. 11 So. 341, holding sustaining of demurrer to count not prejudical 
 if benefit of issues had under another count; Capital City Water Co. v. National 
 Meter Co. 89 Ala. 402, 7 So. 419. holding sustaining of demurrer to plea not 
 prejudicial where matter tried under other issues. 
 
 4 L. R. A. 117, TRUMBULL v. TRUMBULL, 149 Mass. 200, 21 N. E. 366. 
 Estates tail. 
 
 Cited in Hall v. Cressey, 92 Me. 518, 43 Atl. 118, holding that deed to one, 
 
 I 
 
4 L.R.A. 137] L. R. A. CASES AS AUTHORITIES. 620 
 
 his heirs and assigns forever, with habendum to same effect, to take effect at 
 grantor's death with remainder over if grantee dies without children, creates 
 estate tail by construction; Kendall v. Clapp, 163 Mass. 69, 39 N. E. 773, hold- 
 ing that devise for life, and to heirs and assigns forever, not within statute per- 
 taining to grants for life, and after death to heirs in fee. 
 Rnle in Shelley's Case. 
 
 Cited in Nichols v. Gladden, 117 N. C. 502, 23 S. E. 459, holding deed for 
 life, and then to heirs in fee simple, vests entire estate in first taker under rule 
 in Shelley's Case; Wescott v. Binford, 1004 Iowa, 648, 65 Am. St. Rep. 530, 
 74 N. W. 18, holding that rule in Shelley's Case cannot defeat life estate clearly 
 intended to be devised by will; Sands v. Old Colony Trust Co. 195 Mass. 578, 
 81 N. E. 300, 12 A. & E. Ann. Cas. 837, on the abolishment of the Rule in 
 Shelley's Case in Massachusetts as to devises and deeds of land, making estate 
 for life in first taker with remainder in fee to heirs; Baxter v. Bickford, 201 Mass. 
 496, 88 N. E. 7, holding an estate to hold for life and to her "progeny" if any, 
 if not, then to testator's heirs at law, is an estate for life in first taker with 
 remainder in fee to her issue the word "progeny" being construed as one of 
 purchase; Cashman v. Bangs, 200 Mass. 502, 86 N. E. 932, holding a vested con- 
 tingent remainder subject to debts of one in whom it is vested where in case 
 of his death before happening of contingency the estate descends to his heirs. 
 
 Cited in footnote to Glover v. Condell, 35 L. R. A. 360, which holds owner- 
 ship of fvmd subject to limitation over given by bequest to son with provision 
 over in case of death without living heirs. 
 
 Cited in notes (22 Am. St. Rep. 654; 29 L.R.A. (N.S.) 976, 1044, 1125, 1163) 
 on rule in Shelley's case. 
 
 4 L. R. A. 118, EVERSON v. McMULLEN, 113 N. Y. 293, 10 Am. St. Rep. 445, 
 
 21 N. E. 52. 
 Subrogation in equity. 
 
 Cited in McMahon v. Specht, 64 App. Div. 130, 71 1ST. Y. Supp. 806, holding 
 purchaser at foreclosure subrogated to rights of mortgagee as against grantor 
 of mortgagor; Ohmer v. Boyer, 89 Ala. 280, 7 So. 663, holding tenant in com- 
 mon subrogated against co-owner, to rights of prior mortgagee of whole, where 
 entire mortgage paid to protect interest; Short v. Currier, 153 Mass. 184, 26 
 N. E. 444, holding that lien of purchaser of mortgage superior to that of at- 
 taching creditor who stands by while purchaser substitutes discharges of mort- 
 gage for assignments previously taken; Fowler v. Maus, 141 Ind. 54, 40 N. E. 
 56, holding grantee of vendee subrogated, as against dower rights of vendee's 
 widow, to lien of encumbrances paid by grantee, though same satisfied of record ; 
 Coffin v. Leech, 12 Misc. 598, 35 N. Y. Supp. 771, holding interest of child sub- 
 ject to proportional charge of mortgage paid by executors under will ordering 
 distribution of realty among children, where personal estate of child disposed 
 of by assignment of bankruptcy: Hughes v. Howell, 152 Ala. 302, 44 So. 410, 
 holding that the payment of a decree that is a lien on property in which the 
 paying person has a subsequent interest subrogates that person to the rights 
 under the decree; Belloff v. Dime Sav. Bank, 118 App. Div. 22, 103 N. Y. Supp. 
 273, holding that where plaintiff took title and paid mortgage he is subrogated 
 to the equitable rights of mortgagee thoiigh his title Avas only dower interest. 
 
 Cited in notes (12 Am. St. Rep. 506; 99 Am. St. Rep. 491) on right of subro- 
 gation. 
 
 Wife's dower right. 
 
 Cited in footnotes to Hart v. Burch, 6 L. R. A. 371, which holds ineffectual, 
 release of dower to one having no title; Kursheedt v. Union Dime Sav. Inst. 7 
 
621 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 126 
 
 L. R. A. 229. which holds inchoate right of dower not cut off by judgment in 
 foreclosure suit in which mortgagor's wife not served. 
 
 Cited in notes (5 L. R. A. 519) on wife's inchoate right of dower; (5 L. R. A. 
 821) on widow's right of dower; (13 L. R. A. 442) on bar of inchoate right of 
 dower. 
 
 4 L. R. A. 122, A7TNA L. INS. CO. v. HESSER, 77 Iowa, 381, 14 Am. St. Rep. 
 
 297, 42 N. W. 325. 
 Entry of judgment to grlve lien. 
 
 Cited in Callanan v. Votruba, 104 Iowa, 674, 40 L, R. A. 376, 63 Am. St. Rep. 
 538, 74 N. W. 13, holding judgment not a lien within Code, 3801, until entered 
 on court records, though signed by judge and marked "filed" by clerk; Western 
 Sav. Co. v. Currey, 39 Or. 412, 87 Am. St. Rep. 660, 65 Pac. 360, holding entry 
 of judgment in general "judgment lien docket" for all courts insufficient to 
 create lien, where statute requires separate docket for each court; State Ins. 
 Co. v. Prestage, 116 Iowa, 471, 90 N. W. 62, holding lien not created by filing 
 mere transcript by clerk of another county of what was done by justice of the 
 peace; State Sav. Bank v. Shinn, 130 Iowa, 368, 114 Am. St. Rep. 424, 106 N. W. 
 921, holding a judgment against a person in one name is a lien on property 
 deeded to that person in another name as against any purchaser knowing the 
 facts. 
 
 Cited in notes (23 Am. St. Rep. 500) on necessity of entry of record; (87 
 Am. St. Rep. 671) on errors in names as affecting lien of judgments. 
 Duties of clerk as to transcript of judgment. 
 
 Cited in Drahos v. Kopesky, 132 Iowa, 500, 109 N. W. 1021, holding that a 
 clerk of court cannot receive payment or satisfy a judgment rendered in another 
 court, of which he has a transcript. 
 Idem sonans. 
 
 Cited in Loser v. Plainfield Sav. Bank, 149 Iowa, 680, 31 L.R.A. (N.S.) 1116, 
 128 N. W. 1101, holding that record of mortgage in commonly known middle 
 name is notice to subsequent mortgagee taking conveyance from him by his first 
 name or initials. 
 
 Cited in note (100 Am. St. Rep. 339, 352) on idem sonans. 
 
 4 L. R. A. 125, THE CITY OF SALEM, 13 Sawy. 614, 2 Inters. Com. Rep. 418, 
 38 Fed. 762. 
 
 4 L. R. A. 126, CHICAGO CITY R. CO. v. ROBINSON, 127 111. 9, 11 Am. St. 
 
 Rep. 87, 18 N. E. 772. 
 Contributory neg'ligrence. 
 
 Cited in Chicago & A. R. Co. v. Fisher, 141 111. 627, 31 N. E. 406, holding 
 riding on steps or platform of steam railway excursion train not negligence 
 per se ; Lincoln Ice Co. v. Johnson, 37 III. App. 454, holding negligence imputa- 
 ble per se only when such conclusion results necessarily from facts; Perjue v. 
 Citizens' Electric Light & Gas Co. 131 Iowa, 713, 109 N. W. 280, holding de- 
 fendant not entitled to directed verdict unless case of contributory negligence 
 is so clearly made out that reasonable minds might not differ; Stewart v. Omaha 
 & C. B. Street R. Co. 83 Xeb. 103, 118 N. W. 1106, holding contributory negli- 
 gence to be for the jury under the circumstances. 
 
 Cited in footnote to Graney v. St. Louis, I. M. & S. R. Co. 38 L. R. A. 633, 
 which denies negligence per se of twelve year old boy in standing so near pass- 
 ing train as to be drawn under by current of air. 
 
4 L.R.A. 126] L. R. A. CASES AS AUTHORITIES. 622 
 
 Distinguished in Werk v. Illinois Steel Co. 154 111. 432, 40 X. E. 442, Affirm- 
 ing 54 111. App. 308, holding it negligence per se for laborer to stand with foot 
 on track near empty ore ladles to which he knew engine was about to couple; 
 Wabash R. Co. v. Smith, 58 111. App. 420, holding negligence question for jury 
 where deceased started rapidly across tracks behind passing train and was 
 struck by opposite-bound train moving in excess of legal speed. 
 In crossing street car track. 
 
 Cited in Cincinnati Street R. Co. v. Snell, 54 Ohio St. 208, 32 L. R. A. 279, 
 43 N. E. 207 ; Shea v. St. Paul City R. Co. 50 Minn. 400, 52 N. W. 902, holding 
 one who attempts to cross 'street railway track without looking both ways not 
 negligent per se; Atlanta Consol. Street R. Co. v. Bates, 103 Ga. 352, 30 S. E. 
 41, holding it not negligence per se for passenger to alight at crossing on wrong 
 side of car after it had stopped; Wallen v. North Chicago Street R. Co. 82 
 111. App. 107, holding it not negligence per se to attempt to cross street car 
 tracks immediately after alighting, where injury caused by car moving in op- 
 posite direction at unlawful speed without signal; Chicago City R. Co. v. 
 Roach, 76 111. App. 502, holding speed of cable car at crossing properly taken 
 into consideration with surrounding circumstances on point of negligence, 
 though moving slowly; Bass v. Norfolk R. & Light Co. 100 Va. 7, 40 S. E. 100, 
 holding failure to look and listen before crossing street car track not negli- 
 gence, as matter of law; Ames v. Waterloo & C. F. Rapid Transit Co. 120 Iowa, 
 661, 95 N. W. 161 (dissenting opinion), majority holding one crossing street 
 car track, with partly obstructed view, bound to look out for danger; Chicago 
 City R. Co. v. Jordan, 116 111. App. 656, holding question of negligence in cross- 
 ing street car tracks behind a car without looking for opposite bound car is a 
 question for jury in the light of the circumstances and under instructions; Ras- 
 tetter v. Peoria R. Co. 142 111. App. 419, holding that deceased was not negligent 
 in crossing track after the passing of a car obscuring from view a car coming from 
 opposite direction, such last car not having headlight lighted: Indianapolis Street 
 R. Co. v. Tenner, 32 Ind. App. 323, 67 N. E. 1044 (dissenting opinion), on the 
 rules governing negligence and contribution thereto in crossing street car tracks; 
 Hornstein v. United Railways Co. 195 Mo. 456, 4 L.R.A. (N.S.) 738, 113 Am. St. 
 Rep. 693, 92 S. W. 884, 6 A. & E. Ann. Cas. 699, as differentiating between steam 
 railways and street railways as to use of care by pedestrians in crossing tracks. 
 
 Cited in footnotes to Tesch v. Milwaukee Electric R. & Light Co. 53 L. R. A. 
 618, which requires traveler to look and listen before crossing street car track, 
 at place reasonably certain to eti'ect purpose; Kansas City-Leavenworth R. Co. 
 T. Gallagher, 64 L. R. A. 344, which holds it to be duty of pedestrian to look 
 and listen before crossing street railway track; Kansas City-Leave nworth R. Co. 
 v. Gallagher, 64 L.R.A. 344. which holds crossing electric railway track in front 
 of approaching car not negligence, if, in view of its distance, rate of speed, and 
 other circumstances, a reasonably prudent man would undertake to cross: Mar- 
 den v. Portsmouth, K: & Y. Street Railway. 60 L.R.A. 300, which holds failure 
 to look and listen before crossing street car track at public crossing not negli- 
 gence per se. 
 
 Cited in notes (7 L.R.A. 819) on negligence and contributory negligence on 
 street car track; (4 L.R.A. (N.S.) 730) on injury to street car passenger who 
 upon alighting passes around end of car, and is struck by car on other track; 
 <15 L.R.A. (N.S.) 259) on duty to look and listen before crossing electric road. 
 
 Distinguished in Weber v. Kansas City Cable R. Co. 100 Mo. 203, 7 L. R. A. 
 821, 18 Am. St. Rep. 541, 12 S. W. 804, holding it negligence per se for passen- 
 ger to alight on wrong side of moving grip car, though struck by car going op- 
 posite at unlawful speed at crossing; Chicago City R. Co. v. Fennimore, 199 111. 
 
623 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 126 
 
 15, 64 N. E. 985, holding it question for jury where plaintiff, crossing to wait 
 for car, stepped upon tracks immediately after passage of car going in opposite 
 direction and was struck by car running rapidly; Chicago City R. Co. v. Tuohy, 
 196 111. 414, 58 L. R. A. 271, 63 N. E. 997, holding it question for jury where 
 child, walking backward across track, was struck by trolley car running 16 miles 
 an hour without warning. 
 Imputed negligence. 
 
 Cited in True & T. Co. v. Woda, 104 111. App. 18, holding negligence of parents 
 in permitting child to play on street near dangerous lumber pile not imputable 
 where child exercised care usual in adult; Chicago City R. Co. v. Jordan, 116 
 111. App. 656, holding question of negligence of parents immaterial where the 
 child injured used due care; Richmond, F. & P. R. Co. v. Martin, 102 Va. 206, 
 45 S. E. 894, holding that where father's negligence contributed to tle health of 
 his child he cannot maintain an action for his own benefit for the death. 
 
 Cited in footnotes to Casey v. Smith, 9 L. R. A. 259, which holds negligence 
 of custodian imputable to young child; Smith v. Davenport, 11 L. R. A. 429, 
 which holds father not liable for wrongul acts of minor son; Bunting v. Hog- 
 sett, 12 L. R. A. 268, which holds carrier's negligence not imputable to passen- 
 ger. 
 
 Cited in notes (8 L. R. A. 495) on doctrine of imputed negligence; (8 L. R. 
 A. 44) on imputing negligence of another to child; (17 L. R. A. 78) on contrib- 
 utory negligence of parent; (6 L. R. A. 545) on doctrine of contributory negli- 
 gence of parent or guardian imputed to child; (17 L. R. A. 79) on imputing 
 parent's negligence to child; (21 L. R. A. 82) on contributory negligence of 
 parent or custodian as bar to action by child for negligent injuries; (6 L. R. 
 A. 143) on imputing negligence of one person to another; (18 L.R.A. (X.S.) 335) 
 on contributory negligence of parent as bar to action by parent or administrator 
 for death of child non sui juris; (110 Am. St. Rep. 282, 285) on imputed neg- 
 ligence. 
 
 Distinguished in Baltimore & O. S. W. R. Co. v. Pletz, 61 111. App. 164, hold- 
 ing negligence of parents in permitting child to gather coal around tracks and 
 chutes of mine imputable to child negligently upon tracks and aware of ap- 
 proaching danger; Bamberger v. Citizens' Street R. Co. 95 Tenn. 28, 28 L. R, 
 A. 490, 49 Am. St. Rep. 909, 31 S. W. 163, holding negligence of parent con- 
 tributory to death of infant child defeats recovery by him as administrator, 
 where he is sole beneficiary. 
 Contributory negligence of infant. 
 
 Cited in footnote to Gleason v. Smith, 55 L. R. A. 622, which denies lia- 
 bility for injury by collision with team, to twelve year old boy using street as 
 playground. 
 
 Cited in notes (6 L. R. A. 537) on infant not chargeable with contributory 
 negligence; (17 L. R. A. 78) on contributory negligence of child as bar to re- 
 covery; (12 L. R. A. 217) on contributory negligence of infant of tender age; 
 (10 L.R.A. 655) as to when children are sui juris; (11 L.R.A. (N.S.) 170) on 
 what acts of child in attempting to cross cartracks are negligence per se; 
 (14 Am. St. Rep. 591) on negligence of infant as bar to recovery for injuries. 
 Negligence of street railway company. 
 
 Cited in Chicago City R. Co. v. Jordan, 116 111. App. 659, holding that on a 
 finding that child used due care as applied to adults, a finding of negligence only, 
 on part of defendant is sufficient, it not being necessary to find wilful negligence; 
 Savage v. Chicago & J. R. Co. 142 111. App. 345. on the additional amount of 
 -care due from those in charge of street cars at street crossings; Devine v. Chicago 
 
 I 
 
4 L.R.A. 126] L. R. A. CASES AS AUTHORITIES. 624 
 
 City R. Co. 153 111. App. 387, holding that negligence of street railway in 
 running over girl, six years old, crossing street, is for jury; Harmon v. Peoria R. 
 Co. 160 111. App. 466. holding street railway liable for injury to passenger 
 struck by car on opposite track on walking around rear of car from which she 
 just alighted; Indianapolis Street R. Co. v. Bolin, 39 Ind. App. 177, 78 N. E. 
 210, holding that an allegation that accident is caused by driving of car at an 
 excessive rate of speed raises question for jury to be determined with reference 
 to existing conditions and circumstances; Louisville R. Co. v. Hudgins, 124 
 Ky. 84, 7 L.R.A. (N.S.) 155, 98 S. W. 275, holding street railway company liable 
 for negligent injury to passenger alighting from and crossing behind a car, by 
 being hit by car going in opposite direction though such last car is within speed 
 limit and passengers failed to look for its approach; Bremer v. St. Paul C. R. Co. 
 107 Minn. 331, 21 L.R.A. (N.S.) 893, 120 X. W. 382, holding that motorman in 
 passing car discharging passengers must have his car under such control as to 
 be able to stop it, within such time or space as to avoid injury to one using due 
 care under the circumstances; Coel v. Green Bay Traction Co. 147 Wis. 236. 133 
 N. W. 23; Stewart v. Omaha & C. B. Street R. Co. 88 Neb. 212, 129 N. W. 440, 
 Ann. Cas. 1912 B, 861, holding that motorman, when crossing street intersection, 
 where opposite car is discharging passengers, must keep lookout, giving warning 
 and have car under control. 
 
 Cited in footnotes to Smith v. Union Trunk Line, 45 L. R. A. 169, which holds 
 running two cable cars past each other at much frequented crossing without sig- 
 nal, gross negligence; Roberts v. Spokane Street R. Co. 54 L. R. A. 184, which 
 holds street car company not free from negligence per se in allowing cars to meet 
 at busy street crossing while running at rate of 2^ miles an hour. 
 
 Cited in notes (25 L.R.A. 665) on duty imposed on street railroad company 
 to avoid injuring child on track; (11 Am. St. Rep. 785) on negligence of railway 
 companies. 
 Liability for maintaining? dangerous attractions for children. 
 
 Cited in footnote to Siddall v. Jansen, 39 L. R. A. 112, which holds owner liable 
 to child injured by unguarded door to elevator, in store used by employees. 
 
 Cited in notes (49 Am. St. Rep. 408, 428) on negligence in dealing with 
 children. 
 
 4 L. R. A. 128, BAKER v. STATE, 82 Ga. 776, 14 Am. St. Rep. 192, 9 S. E. 743. 
 
 Contempt of court. 
 
 Cited in State ?. Crum, 7 N. D. 305, 74 N. W. 992, upholding power of court 
 to punish defiant attitude and disrespectful language of attorney during trial of 
 case, irrespective of propriety of court's orders; Emery v. State, 78 Neb. .">.">(). 
 9 L.R.A.(N.S.) 1126, 111 N. W. 374, holding an attempt to talk with a juror 
 upon the case in which the juror is serving is contempt of court; Ex parte 
 McCown, 139 N. C. 117, 2 L.R.A. (N.S.) 612, 51 S. E. 957, holding an assault 
 on a judge after court adjourned to meet on call of judge, made because of 
 judicial act of such judge constitutes a contempt of court; State v. Buddress, 
 63 Wash. 31, 114 Pac. 879, holding that court was in session though it tempora- 
 rily suspended business during fight between parties. 
 
 Cited in notes (8 L. R. A. 584) on contempt of court in presence of court; (8 
 L. R. A. 586) on summary punishment for contempt. 
 
 4 L. R. A. 131, CUMMINGTON v. BELCHERTOWN, 149 Mass. 223, 21 N. E. 435. 
 Impeachment of foreign judgment. 
 
 Cited in Kelley v. Kelley, 161 Mass. 113, 25 L. R. A. 807, 42 Am. St. Rep. 389, 
 
625 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 135 
 
 36 N. E. 837, holding foreign court of chancery presumptively without authority 
 to annul second marriage of woman whose husband still living, or to decree ali- 
 mony pendent e lite; Adams v. Adams, 154 Mass. 294, 13 L. R. A. 280, 28 N. E. 
 260, holding invalidity of foreign divorce for want of residence of parties provable 
 in suit by illegitimate son to establish interest in estate of father's brother; 
 Dickinson v. Dickinson, 167 Mass. 476, 45 N. E. 1091, holding divorce granted in 
 foreign jurisdiction on fictitious residence of pliintiff, a nullity in proceeding by 
 other party to obtain divorce at domicil; Haddock v. Haddock, 201 U. S. 592. 
 50 L. ed. 879, 26 Sup. Ct. Rep. 525, 5 A. & E. Ann. Cas. 1, holding a decree of 
 divorce from state other than that of matrimony the wife, still residing in matri- 
 monial state is not entitled to recognition as an annulment of marriage relation 
 in state of matrimony. 
 
 Cited in footnotes to Felt v. Felt, 47 L. R. A. 546, which holds divorce on sub- 
 stituted service in other state where complainant domiciled entitled to recognition 
 by interstate comity; Arrington v. Arrington, 52 L. R. A. 201, which holds foreign 
 decree for alimony after defendant's appearance entitled to fuii faith and credit : 
 Filer v. Filer, 6 L. R. A. 399, which holds jurisdiction to allow alimony not 
 ousted by plea of dismissal of former suit for absolute divorce; Trowbridge v. 
 Spinning, 54 L. R. A. 204, which holds judgment for alimony, though subject to 
 alteration, final for enforcement in another state. 
 
 Cited in notes (12 L. R. A. 576) on constitutional provision as to full faith 
 and credit of judgment; (16 L. R. A. 499) on domicil of wife for purpose of di- 
 vorce suit; (19 L. R. A. 816) on validity of decree of divorce obtained on publi- 
 cation or service out of state, where defendant did not appear; (59 L. R. A. 169) 
 on conflict of laws on subject of divorce; (21 Am. St. Rep. 219) on validity of 
 foreign decree of divorce. 
 
 Distinguished in Loker v. Gerald, 157 Mass. 45, 16 L. R. A. 500, 34 Am. St. Rep. 
 252, 31 N. E. 709, upholding divorce granted in foreign state on ground of deser- 
 tion to husband bona fide moving thither for residence. 
 Validity of marriage. 
 
 Cited in Donnelly v. Strong. 175 Mass. 159, 55 X. E. 892. holding concealment 
 of prior marriage and divorce by defendant not ground for annulment of marriage 
 induced by pregnancy for which libellant responsible: Smith v. Smith, 171 Mass. 
 408, 41 L. R. A. 801, 68 Am. St. Rep. 440, 50 N. E. 933, holding wife entitled to 
 divorce from syphilitic husband, where latter failed to disclose condition before 
 marriage: Lyon v. Lyon. 230 111. 370, 13 L.R.A. (X.S.) 1000, 82 X. E. 850, 12 A. 
 & E. Ann. Cas. 25 (affirming 132 111. App. 54), false statement that epilepsy was 
 cured was no ground to annul marriage. 
 
 Cited in footnote to Di Lorenzo v. Di Lorenzo, 63 L.R.A. 92, which upholds 
 right to annul marriage contract procured by fraudulent representations that 
 a child has been born to woman of which the man is the father. 
 
 Cited in note (13 L.R.A. (X.S.) 997) on misrepresentations or concealment 
 as to physical or mental condition as ground for annulling marriage. 
 Effect of divorce on separation agreement. 
 
 Cited in note (9 L. R. A. 113) on articles of separation. 
 
 4 L. R. A. 135, CHOLLETTE v. OMAHA & R. VALLEY R. CO. 26 Xeb. 159, 41 
 
 N. W. 1106. 
 
 Reaffirmed without special discussion on second appeal in 33 Xeb. 143, 49 N. 
 W. 1114. 
 
 Followed without special discussion in Omaha & R. Valley R. Co. v. Chollette, 
 41 Xeb. 582, 59 X. W. 921. 
 
 L.R.A. Au. Vol. I. 40. 
 
4 L.R.A. 135] L. R. A. CASES AS AUTHORITIES. 626 
 
 Hull roads; effect of sale or lease. 
 
 Cited in Harden v. North Carolina R. Co. 129 N. C. 301, 55 L. R. A. 787, 85 Am. 
 St. Rep. 747, 40 S. E. 184, holding lessor liable for negligence of lessee in operat- 
 ing road; James v. Western N. C. R. Co. 121 N. C. 529, 46 L. R. A. 311, 28 S. E. 
 537, holding foreclosure sale of railroad under second mortgage does not release 
 company from liability for manner in which road is operated; McCabe v. Mays- 
 ville & B. S. R. Co. 112 Ky. 874, 66 S. W. 1054, holding lessor not relieved by lease 
 from liability for negligence of lessee in operating railroad; Julian v. Central 
 Trust Co. 193 U. S. 103, 48 L. ed. 635, 24 Sup. Ct. Rep. 399, holding that prop- 
 erty of railroad company sold under foreclosure passed to purchaser unburdened 
 by liabilities of mortgagor; Illinois C. R. Co. v. Sheegog, 126 Ky. 272, 103 S. W. 
 323, on leasing as effecting the original obligation of a railroad company: Cling- 
 er v. Chesapeake & O. R. Co. 128 Ky. 744, 5 L.R.A. (N.S.) 1007, 109 S. W. 315, 
 holding that under statute granting right to railroads to lease right of way a 
 lease does not absolve the lessor from any of the duties to the public that it 
 owes under its charter with respect to the line leased; Moorshead v. Union R. 
 Co. 203 Mo. 158, 100 S. W. 611, Affirming 119 Mo. App. 569, 96 S. W. 261, hold- 
 ing that in the absence of a statute authorizing lease a lease of its property and 
 franchise by a railway company does not relieve it of is public duties and re- 
 sponsibilities and lessor is liable for torts of lessee. 
 
 Cited in notes (44 L. R. A. 738, 743) on liability of railroad company for in- 
 jury caused by negligence of lessee of road; (66 L.R.A. 155) on liability of rail- 
 roads with reference to legality of contractual arrangements; (21 Am. St. Rep. 
 179) on liability of railroad company for injuries inflicted by construction com- 
 pany. 
 Liability of railroad for negligence of connecting carrier. 
 
 Cited in Cherry v. Kansas City Ft. S. & M. R. Co. 61 Mo. App. 310, and Omaha 
 & R. Valley R. Co. v. Crow, 54 Neb. 751, 69 Am. St. Rep. 741, 74 X. W. 1066, hold- 
 ing, under contract for through transportation, initial carrier liable for negli- 
 gence of connecting carrier. 
 
 Cited in notes (5 Eng. Rul. Cas. 463; 106 Am. St. Rep. 611) on liability of 
 initial carrier for torts or negligence of connecting lines. 
 Statutes making railroad insurer of safety of passenger. 
 
 Cited in Chicago, R. I. & P. R. Co. v. Zernecke, 183 U. S. 585, 46 L. ed. 340, 22 
 Sup. Ct. Rep. 229; Clark v. Russell, 38 C. C. A. 542, 97 Fed. 901; Chicago, R. I. 
 & P. R. Co. v. Zernecke, 59 Neb. 694, 55 L. R. A. 613, 82 N. W. 26 ; Chicago, R. I. 
 & P. R. Co. v. Young, 58 Neb. 681, 79 N. W. 556, holding statutes imposing lia- 
 bility for all damage to person of passengers while being transported over road 
 not unconstitutional. 
 Injury to passenger tvhile in act of alighting: from train. 
 
 Cited in Smitson v. Southern P. Co. 37 Or. 80, 60 Pac. 907, holding passenger 
 entitled to reasonable time to alight, and failure to alight in fifteen seconds not 
 negligence, as matter of law. 
 
 Cited in note (7 L. R. A. 113) on duty of railroad to furnish safe stations and 
 platforms. 
 
 4 I,. R. A. 140, CRUIKSHANK v. HOME FOR THE FRIENDLESS, 113 N. Y. 
 
 337, 21 N. E. 64. 
 Suspension of power of alienation. 
 
 Cited in Booth v. Baptist Church of Christ, 126 N. Y. 237, 28 N. E. 238, holding 
 legacy to orphan asylum to be incorporated, vesting at indefinite future time, not 
 measured by lives, invalid; Underwood v. Curtis, 127 N. Y. 541, 28 N. E. 585, 
 
627 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 140 
 
 holding trust created by will, limited to one life and indefinite period thereafter, 
 void; Re New York, 55 Hun, 206, 7 N. Y. Supp. 836, holding testamentary gift to 
 three lives in being void; Trowbridge v. Metcalf, 5 App. Div. 323, 39 N. Y. Supp. 
 241, holding devise to executors, suspending power of alienation for five years, 
 void; Brandt v. Brandt, 13 Misc. 433, 34 N. Y. Supp. 684, holding trust in execu- 
 tors to receive rents and profits for a period of years before distribution void; 
 Staples v. Hawes, 39 App. Div. 551, 57 N. Y. Supp. 452, holding devise to trustee, 
 distribution suspended for term of years, invalid; Re Rounds, 25 Misc. 107, 54 X. 
 Y. Supp. 710, holding testamentary gift to a <c home," to be incorporated, void: 
 State v. Holmes, 115 Mich. 459, 73 X. W. 548, holding devise to state on condition 
 of acceptance within certain period and location therein of charitable institution 
 void; Re Tower, 49 Minn. 379, 52 N. W. 27, holding devise of real and personal 
 estate with power of sale not invalid; People v. Simonson, 126 N. Y. 306, 27 N. E. 
 380, Affirming 28 N. Y. St. R. 98, 7 N. Y. Supp. 861, holding legacy to nonexist- 
 ent musical institute, to be incorporated, void; Williams v. Lande, 74 Hun, 428, 
 26 N. Y. Supp. 705, holding agreement suspending alienation of stock for six 
 months void; Allen v. Stevens, 161 X. Y. 137, 55 X. E. 568, Affirming 22 Misc. 
 167, 49 X. Y. Supp. 431, holding, under statute, that supreme court must execxite 
 "trust created by will if no trustee named; Frazer v. Hoguet, 65 App. Div. 200, 
 72 X. Y. Supp. 840, holding certain devise not within statute of perpetuities; 
 Murray v. Miller, 178 X. Y. 322. 70 X. E. 870, holding void devise to treasurer 
 of incorporated association's "in trust, to apply the same to the uses and for the 
 benefit" of such body; Fay's Estate, 3 Cof. Prof. Dec. Anno. 274, holding a 
 trust made to expire twenty-five years after date of will void as suspending the 
 absolute power of alienation for a period of years; Johnson v. Preston, 226 
 111. 457, 10 L.R.A. (X.S.) 568, 80 X. E. 1001, holding an estate to vest on date 
 of probate of a will is a suspension of alienation that may not cease within 
 twenty one years and is void; Casgrain v. Hammond, 134 Mich. 429, 104 Am. 
 St. Rep. 610, 96 X. W. 510, holding that under the statutes a suspension of 
 alienation in a trust deed not based on lives and for a particular period is void; 
 Hayden v. Sugden, 48 Misc. 119, 96 X. Y. Supp. 681, holding a power of sale 
 in a will, creating a trust void for suspension of alienation, does not avoid 
 the statute on suspension where the proceeds remain subject to the trust; Tavs- 
 hanjian v. Abbot, 59 Misc. 648, 112 X. Y. Supp. 583, holding a bequest void for 
 suspension of alienation, where it is to vest on incorporation of a charity as 
 per provision in will which if possible of consummation could be so, only by 
 special act; Hillyer v. Vandewater, 3 Silv. Ct. App. 29, 24 X. E. 999 (dissenting 
 opinion), on a disposition of property in violation of statutes against perpetu- 
 ities; Re Rounds, 2 Gibbons, Sur. Rep. 573, holding void, devise, though trustee, 
 to unincorporated home, to be conveyed on its incorporation. 
 
 Cited in footnotes to Murphy v. Whitney, 24 L. R. A. 123, which holds agree- 
 ment that land descending to brothers and sisters shall, on death of last survivor, 
 pass to child of only married one not void as perpetuity; Cross v. United States 
 Trust Co. 15 L. R. A. 606, which upholds bequest valid by law of testator's 
 domicil. 
 
 Cited in notes (11 L. R. A. 86) on unlawful suspension of power of alienation; 
 (5 L. R. A. 34, 35) on applicability to charitable trusts of law against perpetui- 
 ties: (5 L.R.A. 33) on public charities; (26 L.R.A. (X.S.) 827) on allowance of 
 specified period for election to take under devise as violation of rule against 
 perpetuities; 10 Am. St. Rep. 574; 49 Am. St. Rep. 119, 120) on rule against 
 perpetuities. 
 
 Distinguished in Ranken v. James, 1 App. Div. 275, 37 X. Y. Supp. 159, holding 
 substituted devise took effect on failure of devise. 
 
4 L.R.A. 140] L. R. A. CASES AS AUTHORITIES. 628 
 
 Residuary bequests and devises. 
 
 Cited in Re Bonnet, 113 N. Y. 524, 21 N. E. 139, holding void legacy went to 
 residuary legatee; Lamb v. Lamb, 37 N. Y. S. R. 701, 14 N. Y. Supp. 206, holding 
 testator included real estate in residuary clause of will; Gallavan v. Gallavan, 57 
 App. Div. 321, 68 N. Y. Supp. 30, holding failure of devise carried it into residu- 
 ary clause; Smith v. Smith, 141 N. Y. 34, 35 N. E. 1075, holding lapsed legacy 
 went into residuary clause; Moffett v. Elmendorf, 152 N. Y. 485, 57 Am. St. Rep. 
 529, 46 N. E. 845, holding lapsed devise went into residuary clause; Adams v. 
 Anderson, 23 Misc. 707, 53 N. Y. Supp. 141, holding certain real estate a lapsed 
 devise falling into residuum; Re Allen, 151 N. Y. 249, 45 X. E. 554, holding un- 
 disposed income of half of estate fell into residue; Re Post, 30 Misc. 557, 64 N. 
 Y. Supp. 369, holding that inoperative legacies passed into residuary clause; Gal- 
 lavan v. Gallavan, 31 Misc. 283, 64 N. Y. Supp. 329, holding void devises went to 
 residuary devisees; Re Grossman, 113 N. Y. 510, 21 N. E. 180, holding general resid- 
 uary legatee entitled to income from residuum; Re Upham, 127 Cal. 93, 59 Pac- 
 315, holding residuary devisee and legatee was created by will; Watkins v. 
 Bigelow, 93 Minn. 230, 100 N. W. 1104, holding that where residuary clause 
 states that the property therein shall vest free from trust features of will which 
 may be invalid, the property vests absolutely if such features are invalid and 
 if valid it vests subject thereto. 
 
 Cited in notes (9 L.R.A. 202) on what passes by residuary bequests; (14 
 L.R.A.(N.S.) 82) on enforcement of general bequest for charity or religion: (48 
 Am. St. Rep. 198) on intent controlling in construction of will. 
 
 4 L. R. A. 145, FOWLER v. BOWERY SAV. BANK, 113 N. Y. 450, 10 Am. St. Rep 
 
 479, 21 N. E. 172. 
 Election of remedies. 
 
 Cited in Eufaula Grocery Co. v. Missouri Nat. Bank, 118 Ala. 414, 24 So. 389,. 
 holding that action against bank of deposit precludes action against bank of collec- 
 tion, for amount of draft; Crook v. First Nat. Bank, 83 Wis. 42, 35 Am. St. Rep. 
 17, 52 N. W. 1131, holding action against party to whom money has been wrong- 
 fully paid by bank precludes subsequent action in debt against bank; Terry v. Buek. 
 40 App. Div. 422, 57 N. Y. Supp. 980, holding action against broker for fraudulent 
 retention of proceeds of sale bars action against purchaser for purchase price; See- 
 man v. Bandler, 26 Misc. 374, 56 N. Y. Supp. 210, holding institution of replevin 
 action against assignee of alleged fraudulent vendee bars action against vendee 
 for purchase price; McLean v. Ficke, 94 Iowa, 295, 62 N. W. 753, holding attach- 
 ment of agent's property by party injured through agent's fraud precludes subse- 
 quent action against principal for agent's wrong; Cassidy v. New York, 62 H\m, 
 364, 17 N. Y. Supp. 71, holding judgment in action to recover land, requiring 
 accounting for award paid to defendant in pursuance of condemnation proceedings 
 after institution of action to recover, bars action against city to recover award; 
 Droege v. Ahrens & 0. Mfg. Co. 163 N. Y. 470, 57 N. E. 747, holding proof of 
 claim by vendor before vendee's assignee in insolvency bars subsequent rescission 
 of sale on ground of fraud, where facts were known at time of proof; Mills v. 
 Parkhurst, 30 N. Y. S. R. 141, 9 N. Y. Supp. 109, holding that creditor cannot 
 prove claim against assignee for benefit of creditors, pending his attack upon as- 
 signment on ground of fraud; Dietz v. Field, 17 Misc. 27, 39 N. Y. Supp. 257, 
 Affirmed in 10 App. Div. 427, 41 N. Y. Supp. 1087, holding action for conversion 
 of bonds bars subsequent proceeding to recover possession; Carroll v. Fethers, 102: 
 Wis. 443, 78 N. W. 604, holding action for money had and received, though dis- 
 missed, bars subsequent action against same defendants on same facts for conver- 
 sion; Terry v. Munger, 121 N. Y. 170, 8 L. R. A. 220, 18 Am. St. Rep. 803, 24 N, 
 
629 L. E. A. CASES AS AUTHORITIES. [4 L.R.A. 145 
 
 E. 272, holding that bringing action ex contractu on implied contract of sale 
 against one converting property, bars action for conversion against other persons 
 participating in former's acts; White v. White, 107 Ala. 423, 18 So. 3, holding 
 that creditor who takes judgment against debtor thereby waives rights to proceeds 
 of trust created by debtor in his favor; White v. White, 68 Vt. 166, 34 Atl. 425, 
 holding presentation of claims against estate, releases to which had been obtained 
 by fraud, bars suit for specific performance of settlement by which releases ob- 
 tained; Howell v. Campbell, 53 Kan. 749, 37 Pac. 120, holding that action by prin- 
 cipal against absconding agent, to recover purchase price of goods placed in his 
 hands to sell, preclude subsequent attachment thereof on theory that title has not 
 passed; Brady v. Cassidy, 9 Misc. 114, 29 N. Y. Supp. 45, holding that vendee, by 
 permitting vendor to appropriate portion of goods sold, waives right to refuse 
 payment for portion received without delivery of balance, and becomes liable for 
 purchase price, less damage by nondelivery; Brewer v. Ford, 59 Hun, 25, 12 N. Y. 
 Supp. 619 (dissenting opinion), majority holding trover maintainable to recover 
 property without surrender of purchase money notes; Campbell v. Kauffman Mill. 
 Co. 42 Fla. 343, 29 So. 435, holding election between inconsistent remedies, with 
 full knowledge of facts, binding; E. J. Codd Co. v. Parker, 97 Md. 325, 55 Atl. 
 623, holding election to sue undisclosed principal upon discovery binding; Barrell 
 v. Xewby, 62 C. C. A. 387, 127 Fed. 661, holding election by third party to hold 
 agent, after discovery of undisclosed principal, binding; Re Hildebrant, 120 Fed. 
 '996, holding filing of claims against estate of bankrupt for goods sold through 
 fraud of bankrupt, election to affirm contract; Wood v. Claiborne, 82 Ark. 520, 
 11 L.R.A.(X.S.) 916, 118 Am. St. Rep. 89, 102 S. W. 219, holding that to bar 
 action against agent by principal for payment of principals money to irrespon- 
 sible person the agent must show that principal not only obtained judgment but 
 a satisfaction also; Mark Means Transfer Co. v. Mackenzie, 9 Idaho, 174, 73 
 Pac. 135, holding that institution of suit for purchase price is a waiver of con- 
 dition in conditional sale contract showing an election on part of vendor to 
 waive his right of attachment and sue on contract; Dickson v. New York Biscuit 
 Co. 211 111. 492, 71 N. E. 1058, holding that an acceptance by beneficiaries of 
 profits of an invalid trustee's sale, precludes them from obtaining a reconveyance 
 from bona fide purchasers; Paris v. Sheppard, 125 Iowa, 258, 101 X. W. 114, 
 holding an intervention under a statute, in attachment proceedings after sale 
 thereunder precludes the intervenor from afterwards maintaining a suit for 
 recovery of the property; Sweet v. Montpelier Sav. Bank & T. Co. 69 Kan. 645, 
 77 Pac. 538, holding that where money has been wrongfully converted by cor- 
 poration the assets of corporation going into hands of receiver for insolvency a 
 following of funds in hands of receiver as a trust fund does not preclude an 
 action against the persons who wrongfully converted; Aho v. Republic Iron & 
 Steel Co. 104 Minn. 325, 116 N. W. 590, holding that a fraudulent release by 
 executor, of widow and children's right of action for death of husband and 
 father and a subsequent action by widow against the executor and one released 
 are no bar to an action by widow for negligent killing of her husband against 
 the person released; Parker v. Murphy, 56 Misc. 544, 107 N. Y. Supp. 202, on 
 election by decisive act made with full knowledge of all the facts; Hochberger 
 T. TAidvigh. >3 Misc. 314, 116 N. Y. Supp. 696, holding that plaintiff may not sue 
 bank for a payment of deposit, assigned to him with notice to bank to receiver 
 of depositor, after institution of suit by plaintiff against receiver on implied 
 assumpsit on permission of court; Carnegie Trust Co. v. Battery Place Realty 
 Co. i>7 Misc. 453, 122 X. Y. Supp. 697, holding that when there are two parties 
 claiming the same ehose-in-action the one having superior claim may sue in 
 assumpsit the other who receives the money or may repudiate the payment and 
 
4 L.R.A. 145] L. R. A. CASES AS AUTHORITIES. 633 
 
 sue the debtor; Lynde v. Lynde, 113 App. Div. 418, 99 N. Y. Supp. 283 (dissenting 
 opinion), on choice of remedies; Hine v. Hine, 118 App. Div. 589, 103 N. Y. Supp. 
 535, holding that where a devisee assigns his right to his share of proceeds- 
 from estate he cannot hold executor to account for the property from which the 
 proceeds arose; Re Ablowich, 118 App. Div. 632, 103 N. Y. Supp. 699 (dissenting 
 opinion), on election and prosecution to judgment of one of two inconsistent 
 remedies as a bar to use of other; Davenport v. Walker. 132 App. Div. 99, 116 
 N. Y. Supp. 411, on the rule that the election to sue on one of two inconsistent 
 causes of action is a bar to suit on the other; Re Hoffman, 136 App. Div. 520. 
 121 N. Y. Supp. 184, Reversing 62 Misc. 605, on loss of right of action against 
 bank by election to sue person to whom bank paid money; Turner v. Grimes, 75 
 Neb. 416, 106 N. W. 465, holding that plaintiff who has sued unsuccessfully on a 
 bill of sale cannot subsequently in another action, claim that title never passed; 
 Jones v. First Nat. Bank, 3 Neb. (Unof.) 79, 90 N. W. 912, holding prosecution 
 of suit to final judgment against person to whom bank paid plaintiff's money 
 is a bar to subsequent action against the bank; Seymour v. DuBois, 145 Fed. 
 1006, holding that a decree discharging counsel on payment of fee obtained on 
 petition is a binding election to discharge, precluding petitioner from asserting 
 that relation of attorney and client has not terminated. 
 
 Annotation cited in Carter, R. & Co. v. Howard, 17 Misc. 384, 39 N. Y. Supp. 
 1060, on election of inconsistent remedies. 
 
 Cited in footnotes to Crompton v. Beach, 18 L. R. A. 187, which holds condi- 
 tional vendor's exercise of option to enforce payment of note defeats right to re- 
 take property; Bradley v. Brigham, 3 L. R. A. 507, which holds action for con- 
 version against executor of deceased partner barred by suing for accounting; 
 Barndt v. Frederick, 11 L. R. A. 199, which holds conducting trial on theory sug- 
 gested by court conclusive election of form of action; Johnson-Brinkman Commis- 
 sion Co. v. Missouri P. R. Co. 26 L. R. A. 840, which holds mere commencement 
 of attachment suit not binding election of remedy; Miller v. Hyde, 25 L. R. A 
 42, which holds replevin of horse not defeated by prior attachment in suit for 
 trover; Walden Nat. Bank v. Birch, 14 L. R. A. 211, which holds recovery of 
 judgment against bank cashier on- note secured by bank stock not bar to action 
 on bond for misappropriating stock; Barchard v. Kohn, 29 L. R. A. 803, which 
 holds lien of chattel mortgage on exempt property not waived by obtaining judg- 
 ment and levying on mortgaged property; Draper v. Medlock. 69 L.R.A. 483, 
 which holds burden of proving that particular matter in controversy was neces- 
 sarily or actually determined in former litigation upon party pleading judgment 
 as an estoppel. 
 
 Cited in notes (13 L. R. A. 473) on election of remedy; (5 L. R. A. 693, 8 L. 
 R.A. 217) on collusiveness of election of remedy; (134 Am. St. Rep. 189) on 
 right to waive tort and sue in assumpsit. 
 
 Distinguished in McNutt v. Hilkins, 80 Hun, 238, 29 N. Y. Supp. 1047, holding 
 judgment for defendant in action by vendor against vendee for conversion does 
 not bar action for purchase price; Heidelbach v. National Park Bank, 87 Hun r 
 126, 33 N. Y. Supp. 794, holding that vendor may bring separate actions for pur- 
 chase price and to recover goods, under contract reserving title until full pay- 
 ment; Johnson-Brinkman Commission Co. v. Missouri P. R. Co. 126 Mo. 340. 2ft 
 L. R. A. 842, 47 Am. St. Rep. 675, 28 S. W. 870, holding, on dismissal of attach- 
 ment suit by vendor against vendee, that replevin may be brought; Clark v. Hall. 
 54 Xeb. 485, 74 N. W. 856, holding that judgment against individual members of 
 partnership does not bar subsequent action against new partnership assuming 
 this debt; Grossman v. Universal Rubber Co. 127 N. Y. 38, 13 L. R. A. 94, 27 N. 
 E. 400, holding that pendency of foreign proceeding in rem by vendor of real 
 
631 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 145 
 
 estate, to recover entire purchase price on ground of fraud, not bar to action on 
 purchase money note, though available as defense in abatement; Hurst v. Trow 
 Printing & Bookbinding Co. 2 Misc. 365, 22 N. Y. Supp. 371, holding retention of 
 matured notes in series issued under executory agreement prevents return of re- 
 mainder with notice of rescission from operating as entire rescission, so as to 
 bar recovery on matured notes retained; Cohoon v. Fisher, 146 Ind. 588, 36 L. R. 
 A. 195. 45 X. E. 787, holding that institution of suit to rescind contract for fraud 
 does not prevent substitution, before judgment, of action for damages by reason 
 of the fraud; Marshall v. Otto, 59 Fed. 255, holding that pledgee's attachment of 
 the property pledged on ground of pledgeor's nonresidence, and for purpose of pre- 
 venting his fraudulent disposition thereof, does not operate to waive pledge lien; 
 Russell v. McCall, 141 N. Y. 449, 38 Am. St. Rep. 807, 36 N. E. 498, Reversing 
 68 Hun, 54, 22 N. Y. Supp. 615, holding that unsatisfied judgment in accounting 
 against surviving partner, which covers misappropriation known at time of suit, 
 does not bar action against others joining in misappropriation; Central Nat. 
 Bank v. White, 47 N. Y. S. R. 304, 19 N. Y. Supp. 820, holding judgment by 
 brokers against their defaulting cashier, in which he is treated as customer, does 
 not preclude them from asserting contrary in action by customer for value of se- 
 curities embezzled; Re Linforth, 87 Fed. 390, holding that institution of proceed- 
 ing by secured creditor of bankrupt against security, upon condition of waiving 
 claim against estate, does not preclude such claim where proceeding subsequently 
 abandoned for good reason and without laches; Ernst v. Estey Wire Works Co. 20 
 Misc. 366, 45 X. Y. Supp. 932, holding that agreement by assignee not to sue di- 
 rectors of assigning corporation, made at time of taking additional security, does 
 not bar suit against debtor where assignee not aware of payment to assignor at 
 time of taking additional security; Eads v. Orcutt, 79 Mo. App. 522, holding 
 that statutory action against officers of insolvent bank may be brought after proof 
 of claim before assignee in insolvency; Detroit Heating & L. Co. v. Stevens, 20 
 Utah. 248, 58 Pac. 193, holding that trial by defendant upon ground of rescission 
 of contract, defense not being raised by pleadings, does not prevent amendment of 
 answer to claim breach of warranty on new trial ; State v. Bank of Commerce, 61 
 Neb. 26, 84 N. W. 406, holding that doctrine of election has no application where 
 party pursues remedy to which he is not entitled; Central Nat. Bank v. White, 
 29 Jones & S. 273, 19 N. Y. Supp. 820, holding that there has been no election 
 to become liable to the bank where defendant brings suit to recover balance 
 in favor of defaulting cashier doing business through defendant with bank funds. 
 Relation of bank: to depositor. 
 
 Cited in People ex rel. Heermance v. Dederick, 35 App. Div. 31, 54 N. Y. Supp. 
 519, holding savings bank not subject to taxation for deposits therein, since they 
 are debts which may be set off against amount of personal property; People e* 
 rcl. Newburgh Sav. Bank v. Peck, 22 Misc. 483, 50 N. Y. Supp. 820, holding ac- 
 cumulated surplus in savings bank exempt from taxation; Re Hurst, 111 App. 
 Div. 462. 97 N. Y. Supp. 697, holding that the relation between decedent and 
 her depositary, the savings bank, being that of creditor and debtor, to entitle the 
 administrator to commissions for collection of debts he must have withdrawn 
 deposits; Re White, 119 App. Div. 142, 103 N. Y. Supp. 868, holding that sum- 
 mary proceedings for recovery of money deposited in bank by decedent may not 
 be brought by personal representative the relation of decedent and bank being that 
 of creditor and debtor the usual process must be alone accessible. 
 
 Cited in footnote to Pickle v. People's Nat. Bank, 7 L. R. A. 93, which holds 
 acceptance of check necessary to give right of action against bank. 
 
 Cited in notes (86 Am. St. Rep. 777) on title of bank to money deposited 
 
4 L.R.A. 145] L. R. A. CASES AS AUTHORITIES. 632 
 
 with or collected by it; (105 Am. St. Rep. 734) on duties of savings banks 
 toward depositors. 
 
 Distinguished in Cassidy v. Uhlmann, 170 N. Y. 515, 63 N. E. 554, holding 
 director permitting deposit after knowledge of bank's insolvency, personally 
 liable to depositor for damages. 
 Deposits in trust. 
 
 Cited in Farleigh v. Cadman, 159 M. Y. 172, 53 N. E. 808, holding deposit 
 of fund in savings bank by father in his own name, "in trust for" adopted daugh- 
 ter present at the time, creates valid, irrevocable trust for her benefit; Re Muel- 
 ler, 15 App. Div. 69, 44 N. Y. Supp. 280, holding deposit "in trust for" another 
 conclusively presumed irrevocable trust, in absence of rebutting circumstances; 
 Robertson v. McCarty, 54 App. Div. 106, 66 N. Y. Supp. 327, holding retention 
 of deposit book by depositor and ignorance of beneficiary of deposit "in trust 
 for" him insufficient to rebut presumption of irrevocable trust; Millard v. Clark, 
 80 Hun, 149, 29 N. Y. Supp. 1012, holding deposit of money "subject to sole con- 
 trol of" another creates trust fund recoverable by beneficiary; Jenkins v. Baker, 
 77 App. Div. 513, 78 N. Y. Supp. 1074, holding implication of trust arising from 
 savings bank deposit "in trust" for another but rebutted by subsequent with- 
 drawal of the money; Re King, 51 Misc. 379, 101 N. Y. Supp. 279, holding where 
 money is deposited in bank in trust for another with stipulation "subject to con- 
 trol of" the depositor coupled with declarations on part of depositor that deposit 
 is for benefit of such person a trust is established. 
 
 Cited in notes (32 L.R.A. 374) on effect of depositing money in bank in trust 
 for third person; (1 L.R.A. (N.S.) 792) on bank deposit for other person as 
 gift or transfer of title. 
 Liability of trustee. 
 
 Cited in Hopper v. Brown, 34 Misc. 661, 70 N. Y. Supp. 592, holding six, and 
 not three, year limitation applies to action against trustee to recover funds 
 drawn by him from deposit in irrevocable trust for plaintiff; Noyes v. Turnbull, 
 54 Hun, 42, 7 N. Y. Supp. 114 (dissenting opinion), majority holding retiring 
 trustee in conduct of business under testamentary appointment not personally 
 liable to creditor dealing with successors in trust after such retirement, espe- 
 cially after notice. 
 Liability of party to whom payment is wrongfully made. 
 
 Cited in Dechen v. Dechen, 59 App. Div. 167, 68 N. Y. Supp. 1043, holding 
 beneficiary in trust deposit entitled to waive rights against bank and recover 
 from third party, to whom payment has been wrongfully made; Bates-Farley 
 Sav. Bank v. Dismukes, 107 Ga. 218, 33 S. E. 175, holding that stockholder in 
 building association who has given notice of withdrawal, under terms of con- 
 tract, may sue bank wrongfully collecting withdrawal value of stock, for money 
 had and received. 
 Time for taking objections. 
 
 Cited in Drexel v. True, 20 C. C. A. 266, 36 U. S. App. 611, 74 Fed. 14, hold- 
 ing objections other than those going to jurisdiction of court, if not taken on 
 trial, will not be considered on appeal; Barcus v. Dorries, 64 App. Div. 112, 71 
 N. Y. Supp. 695, holding objection that facts proved in defense were inadmissi- 
 ble under pleadings not available for first time on appeal; United States ex rel. 
 Search v. Choctaw, O. & G. R. Co. 3 Okla. 470, 41 Pac. 729, holding that right 
 of party to judgment on pleadings cannot be maintained for first time on ap- 
 peal. 
 
 Distinguished in Palmer v. Cypress Hill Cemetery, 122 N. Y. 436, 25 N. E. 
 
633 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 151 
 
 983, holding facts proved, but not found by court or referee, not available on 
 appeal to support reversal of judgment, though available to support it. 
 
 4 L. R. A. 151, BYRNES v. NEW YORK, L. E. & W. R. CO. 113 N. Y. 251, 21 
 N. E. 50. 
 
 Reaffirmed on subsequent appeal in 71 Hun, 210, 24 N. Y. Supp. 517. 
 N -ii 1 im-in-c of fellow servant. 
 
 Cited in Ford v. Lake Shore & M. S. R. Co. 117 N. Y. 639, 22 N. E. 946, 
 holding railroad not liable for negligent loading of lumber which fell on switch- 
 man; Sweeney v. Page, 64 Hun, 175, 18 N. Y. Supp. 890, holding negligent load- 
 ing of stone by coemployees not actionable; Bailey v. Delaware & H. Canal Co. 
 27 App. Div. 306, 50 N. Y. Supp. 87, holding railroad not liable to employee 
 for unsafe loading of timber; Dewey v. Detroit, G. H. & M. R. Co. 97 Mich. 335, 
 22 L. R. A. 294, 37 Am. St. Rep. 348, 56 N. VV. 756, holding railroad furnish- 
 ing competent inspector not liable to brakeman injured by projecting load; Page 
 v. Xaughton, 63 App. Di'. 381. 71 N. Y. Supp. 503, holding master not liable for 
 fellow servant's negligence in piling bags of cement; Filbert v. Delaware & H. 
 Canal Co. 121 N. Y. 212, 23 N. E. 1104, holding master not liable to, employee 
 falling into pit uncovered by coservants; Geoghegan v. Atlas S. S. Co. 3 Misc. 
 229, 22 N. Y. Supp. 749, holding master not liable for fellow servant's omission 
 to close doors, through which decedent fell; Berrigan v. New York, L. E. & W. 
 R. Co. 131 N. Y. 585, 30 N. E. 57, holding brakeman assumes risk of engineer's 
 negligence; Bryant v. New York C. & H. R. R. Co. 81 Hun, 168, 30 N. Y. Supp. 
 737, holding railroad not liable for a coemployee's failure to observe rules; 
 Reynolds v. Kneeland, 63 Hun, 289, 17 N. Y. Supp. 895, holding one cannot re- 
 cover for negligence of fellow servants using defective appliance originally per- 
 fect; Henry v. Ann Arbor R. Co. 140 Mich. 451, 103 N. W. 846, holding that a 
 station agent in lowering a platform used in unloading freight exercises the 
 act of a fellow servant to a conductor who is injured thereby; Ford v. Lake Shore 
 & M. S. R. Co. 2 Silv. Ct. App. 463, 22 N. E. 946, holding company not liable for 
 injury to employee caused by lumber falling from car where company supplied 
 car capable of holding lumber loaded thereon but the loaders failed to properly 
 load, though the car was not a lumber car; Koehler v. Xew York Steam Co. 84 
 App. Div. 224. 82 X. Y. Supp. 588, holding employer not liable though steam ap- 
 pliance is defective, he having made provision for inspection by competent serv- 
 ant; Fouquet v. New York C. & H. R. R. Co. 53 Misc. 124, 103 N. Y. Supp. 1105, 
 holding that a draftsman working in engineering department of railway com- 
 pany is a fellow servant with the person running the elevator in building which 
 the department is located. 
 
 Cited in footnotes to Dewey v. Detroit, G. H. & M. R. Co. 22 L. R. A. 292, 
 which holds railroad company not liable for injury to brakeman by load pro- 
 jecting beyond end of Hat car; Buck v. New Jersey Zinc Co. 60 L. R. A. 453, 
 which holds blacksmith in factory making link for chain to keep box of dump 
 car in position a fellow servant of one using car. 
 
 Cited in notes (4 L. R. A. 794, 5 L. R. A. 735) on who are fellow servants; 
 (50 L. R. A. 429) on what servants are deemed to be in same common employ- 
 ment apart from statutes, where no questions as to vice principalship arise; 
 (54 L. R. A. 127, 161) on vice principalship as determined with reference to 
 character of act causing injury; (75 Am. St. Rep. 604, 605, 622) on who is a 
 vice principal. 
 
 Distinguished in Pennsylvania R. Co. v. La Rue. 27 C. C. A. 366, 55 U. S. 
 App. 20, 81 Fed. 151, holding railroad liable for fellow servant's leaving de- 
 fective side stake on lumber car; Little Rock & M. R. Co. v. Moseley, 6 C. C. 
 
4 L.R.A. 151] L. R. A. CASES AS AUTHORITIES. 634 
 
 A. 228, 12 U. S. App. 514, 56 Fed. 1012, holding railroad liable to switchman 
 for car inspector's failure to repair defective coupling; Hogaii v. Smith, 31 N. 
 Y. S. R. 801, 9 N. Y. Supp. 881, holding one injured through defect in platform 
 built by coemployees entitled to go to jury on question of competency. 
 
 Disapproved in Frank v. American Tartar Co. 91 App. Div. 575, 87 X. Y. Supp. 
 -219, holding negligence of servant intrusted by master with duty of inspection of 
 .appliances is attributable to master. 
 I)ui > to furnish proper appliances. 
 
 Cited in McCampbell v. Cunard S. S. Co. 36 N. Y. S. R. 854, 13 N. Y. Supp. 
 288, holding employer furnishing reasonably safe appliances not liable to em- 
 ployee; Woods v. Long Island R. Co. 11 App. Div. 19, 42 N. Y. Supp. 140, hold- 
 ing railroad liable for misadjustment of brake rod on car, not part of train- 
 hand's duty; Irvine v. Flint & P. M. R. Co. 89 Mich. 419, 50 N. W. 1008, holding 
 railroad liable for improper loading, making car unsafe for brakeman; Jennings 
 v. New York, N. H. & H. R. Co. 12 Misc. 412, 33 N. Y. Supp. 585, holding rail- 
 road liable to brakeman for negligence of car inspector; Van Tassell v. Xe\v 
 York, L. E. & W. R. Co. 1 Misc. 303, 20 N. *. Supp. 708, holding railroad re- 
 lieved from liability to employee for defective appliances, by adopting rules for 
 inspection; La Croy v. New York, L. E. & W. R. Co. 132 N. Y. 572, 30 N. E. 391, 
 Reversing 57 Hun, 71, 10 N. Y. Supp. 382, holding railroad not liable to brake- 
 man knowingly disobeying rule requiring brakes to be tested; La Croy v. Xe\v 
 York, L. E. & W. R. Co. 4 Silv. Sup. Ct. App. 126, 30 N. E. 391, on the duty 
 of company to furnish its employees with rules and regulations. 
 
 Cited in notes (41 L.R.A. 123, 125) on assignability of duty of inspection; 
 (13 L.R.A.(X.S-) 388, 389) on liability of railroad to employee for injuries caused 
 by defectively loaded car; (98 Am. St. Rep. 302) on liability to servant for in- 
 juries due to defective machinery and appliances. 
 
 Distinguished in Dougherty v. Rome, W. & O. R. Co. 45 N. Y. S. R. 156, 18 
 N. Y. Supp. 841, holding railroad liable to section foreman struck by timber 
 projecting because of defective side stake. 
 Assumption of risk. 
 
 Cited in Devoe v. New York C. & H. R. R. Co. 70 App. Div. 499, 75 N. Y. 
 Supp. 136, holding railroad employee presumed to acquiesce in known rules. 
 
 Cited in note (43 L. R. A. 373) on duty of servant as to rules promulgated 
 by employer. ' 
 >:<>timi for nonsnit; when exception to denial waived. 
 
 Distinguished in Hopkins v. Clark, 158 X. Y. 303, 53 X. E. 27, holding fail- 
 ure to renew motion for nonsuit before going to jury waives exception. 
 
 4 L. R. A. 154, CARROLL v. GILES, 30 S. C. 412, 9 S. E. 422. 
 Contracts In restraint of trade. 
 
 Cited in Southworth v. Davison, 106 Minn. 121, 19 L.R.A.(N.S.) 771, 118 N. W. 
 363, 16 A. & E. Ann. Cas. 253, holding that a sale of good will and business is 
 not void if the good will is not limited as to time where there is a proper limita- 
 tion as to place. 
 
 Cited in footnotes to Clark v. Needham, 51 L. R. A. 785, which holds void, lease 
 of manufacturing machinery with agreement against lessor engaging in business 
 for five years; Wilkinson v. Colley, 26 L. R. A. 114, which holds injunction 
 against violating agreement not to practise medicine not prevented by naming 
 penalty; Kramer v. Old, 3,4 L. R. A. 389, which sustains contract restricting 
 seller from engaging in milling business in vicinity of certain city. 
 
 Cited in notes (11 L. R. A. 504) on validity of contracts in restraint of trade 
 
635 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 158 
 
 throughout state; (8 L. R. A. 470) on contracts in partial restraint of trade 
 as to locality; (11 L. R. A. 438) on contracts in partial restraint of trade pre- 
 sumptively void; (24 L.R.A.(N.S-) 926) on validity of agreement in restraint of 
 trade, ancillary to sale of business or profession, as affected by territorial scope; 
 (6 Eng. Rul. Gas. 452) on invalidity of contracts in restraint of trade. 
 To prevent competition. 
 
 Cited in Walter A. Wood Mowing & Reaping Co. v. Greenwood Hardware Co. 
 75 S. C. 386, 9 L.R.A.(N.S.) 507, 55 S. E. 973, 9 A. & E. Ann. Gas. 902, holding a 
 contract by which a retailer agrees to buy of wholesaler exclusively and whole- 
 saler agrees to sell to retailer exclusively certain machinery to be sold in certain 
 territory, is not in general restraint of trade; Turner v. Abbott, 116 Tenn. 730, 
 6 L.R.A.(N.S.) 897, 94 S. W. 64, 8 A. & E. Ann. Gas. 150, holding that one 
 who has 7 neither good will nor place of business may contract not to start a busi- 
 ness in competition with the other party to the contract. 
 
 Cited in footnotes to Gloucester Isinglass & Glue Co. v. Russia Cement Co. Is! 
 L. R. A. 563, which holds agreement to prevent competition between corporations 
 in manufacture of glue under patent, valid; Nester v. Continental Brewing Co. 
 24 L. R. A. 247, which holds combination of brewers to stifle competition with- 
 in specified place void; Chaplin v. Brown, 12 L. R. A. 428, which holds grocer's 
 agreement not to buy butter from makers for two years, if firm opens butter 
 store, void; More v. Bennett, 15 L. R. A. 361, which holds association of stenog- 
 raphers to control prices for work illegal combination; Texas Standard Cotton 
 Oil Co. v. Adoue, 15 L. R. A. 598, which holds combination to fix prices of cot- 
 ton seed and seed cotton void; Stockton v. Central R. Go. 17 L. R. A. 97, which 
 holds that lease of railroad franchises and roads tends to monopoly; State v. 
 Phipps, 18 L. R. A. 658, which holds combination by foreign companies to in- 
 crease rates of insurance unlawful; State ex rel. Watson v. Standard Oil Co. 15 
 L. R. A. 145, which holds agreement for transfer of corporate stock to trustees 
 to vote and receive dividends void; Pittsburgh Carbon Co. v. McMillin, 7 L. R. 
 A. 46, which holds party to illegal trust combination not entitled to proceeds as 
 against receiver of trust assets. 
 
 Cited in notes (13 L. R. A. 771) on nature of monopolies; (12 L. R. A. i54) 
 on remedy against monopoly by injunction; (24 L.R.A.(N.S.) 934, 936, 941) on 
 validity of agreement by employee not to engage in competing business, as 
 affected by scope in time and territorial extent. 
 
 4 L. R. A. 158, DAWE v. MORRIS, 149 Mass. 188, 14 Am. St. Rep. 404, 21 N. E. 
 
 313. 
 \\ In-ii action for deceit lies. 
 
 Cited in Durkin v. Cobleigh, 156 Mass. Ill, 32 Am. St. Rep. 436, 30 N. E. 
 474, holding that false representation to grantee as to existence of right of way 
 appurtenant to estate granted is actionable; Kilgore v. Bruce, 166 Mass. 138, 
 44 N. E. 108, holding false statements as to market value of articles offered for 
 sale actionable, if made to unskilled person; iJullock v. Wooldridge, 42 Mo. App. 
 362, holding misrepresentation not ground for action for deceit unless made as 
 to existing fact; Alletson v. Powers, 72 Vt. 418, 48 Atl. 647, holding failure of 
 grantee to pay interest due on existing mortgage which he was told could run 
 for ten years if interest paid, precludes him from bringing action for deceit; Mc- 
 Cuskor v. Geiger. 195 Mass. 55, 80 X. E. 648, holding a misrepresentation of a 
 fact procuring the execution of a contract not actionable where wrong done came 
 from a breach of the contract and not from the misrepresentation; Mabnrdy v. 
 MoTIugh, 202 Mass. 149, 23 L.R.A.(N.S.) 491, 132 Am. St. Rep. 484, 88 N. E. 894, 
 
4 L.R.A. 158] L. R. A. CASES Ab AUTHOEITIES. 636: 
 
 16 A. & E. Ann. Cas. 500, as an indication of the plain disposition of the court 
 not to extend legal immunity for the falsehood of vendors in the course of nego- 
 tiations for sales beyond the bounds already established; Cerny v. Paxton & G. 
 Co. 78 Neb. 138, 10 L.R.A.(N.S.) 648, 110 N. W. 882, holding that where creditor 
 obtains mortgage in security of debt by promise, which he does not intend to 
 keep, that he will not allow property mortgaged to be sold under an agreed price 
 the promise is part consideration for mortgage not void under statute of frauds 
 and a breach thereof is actionable fraud. 
 
 Annotation cited in Anderson v. G. Heileman Brewing Co. 104 Minn. 329, 116 
 N. W. 655, holding a complaint in an action for fraud and deceit to be deficient 
 for failure to allege or show that the loss or damage suffered was by reason of 
 the fraud alleged. 
 
 Cited in footnotes to Chicora Fertilizer Co. v. Dunan, 50 L. R. A. 401, which 
 holds failure to inform creditor of pending negotiations increasing value of 
 collateral security sought to be released not fraudulent concealment; Nash v. 
 Minnesota Title Ins. & T. Co. 28 L. R. A. 753, which requires intent to deceive 
 to sustain action for false representations inducing execution of contract; Opie 
 v. Pacific Investment Co. 56 L. R. A. 778, which denies duty of indorser to dis- 
 close to mortgagee knowledge as to value of mortgage which he attempts to buy 
 for third person. 
 
 Cited in notes (6 L. R. A. 150, 151) on right of action for deceit; (11 L. R, 
 A. 197) on actions for deceit and fraudulent representations; (4 L. R. A. 146) 
 on election of remedies; (10 L.R.A.(N.S-) 644) on future promise as fraud; (IS 
 Am. St. Rep. 558, 559, 561) on liability for false representations; (12 Eng. Rul. 
 Cas. 297) on what constitutes fraud and liability therefor. 
 False representations as ground for rescission of contract. 
 
 Cited in Barnes v. Starr, 64 Conn. 156, 28 Atl. 980, holding promise to do act 
 in future not such fraudulent representation as affords ground for cancelation^ 
 of contract; Birmingham Warehouse & Elevator Co. v. Elyton Land Co. 93 Ala. 
 554, 9 So. 235, holding representation by vendor as to location of railroad near 
 land not ground for rescission, unless fraudulently made with intent to deceive; 
 Macklem v. Fales, 130 Mich. 72, 89 N. W. 581, holding fraud not shown by testi- 
 mony of parties as to representations as to cost of sale of article, no sugges- 
 tions as to such expense appearing in written contract; Lyons Buriel Vault Co.. 
 v. Taylor, 198 Mass. 69, 84 N. E. 320, holding that where it might be found that 
 purchasers are wholly ignorant or unskilled to the extent that they rely on state- 
 ment made, it is for the jury to determine now for they are justified in relying on 
 statements; McLennon v. Siebel, 135 Mo. App. 264, 115 S. W. 484, holding that 
 reliance on the misstatement by the party injured is necessary to justify a rescis- 
 sion of contract for misrepresentation. 
 
 Cited in notes (6 L. R. A. 219) on false representations inducing entry into, 
 contract; (10 L. R. A. 606) on contracts obtained by circumvention and deceit.. 
 Conspiracy to defraud. 
 
 Cited in Field v. Siegel, 99 Wis. 610, 47 L. R. A. 440, 75 N. W. 397.. holding 
 combination with insolvent debtor to enable him to cover up property to defeat 
 claim for goods previously purchased not ground for action; Com. v. Stuart, 207 
 Mass. 569, 93 N. E. 825, holding that proof of obtaining money in payment for 
 supposed half interest in another's pretended business by false representations as 
 to its profits, part of general scheme to defraud, will sustain indictment for 
 larceny. 
 
337 L. E. A. CASES AS AUTHORITIES. [4 L.R.A. 171 
 
 4 L. R. A. 161, HURLEY v. STATE, 46 Ohio St. 320, 21 N. E. 645. 
 Impeachment of witness by party calling; him. 
 
 Cited with special approval in Mascurides v. State, 86 Neb. 113, 125 N. W. 
 132, holding signed statement made by eye-witness was not admissible to con- 
 tradict testimony of such witness on stand. 
 
 Cited in State v. Steeves, 29 Or. 105, 43 Pac. 947, holding impeachment by 
 showing statements inconsistent with testimony not permitted, unless testimony 
 be material and prejudicial to party calling him; Masourides v. State, 86 Xeb. 
 113, 125 X. W. 132, holding that ordinarily a party cannot introduce evidence 
 for the sole purpose of impeaching his own witness but he may show the truth 
 by other witnesses without regard to contradictory declarations of impeached 
 witness; Mustill v. Thornton, 22 Ohio C. C. 612, 12 Ohio C. D. 596, holding that 
 witness may be questioned by party calling him as to contradictory statements 
 made out of court ; Katafiasz v. Toledo Consol. Electric Co. 1 Ohio C. C. X. S. 133, 
 24 Ohio C. C. 130, holding in admissible evidence that witness called by a party 
 did not state the facts to which he has testified to counsel when asked to state 
 all he knew about the case outside of court. 
 
 Cited in notes (21 L. R. A. 427, 429) on right to impeach own witness by 
 proof of contradictory or inconsistent statements; (82 Am. St. Rep. 57, 59; 11 
 Eng. Rul. Cas. 162) on discretion of court as to permitting cross-examination 
 of one's own witness. 
 Interrogating own witness as to statements Inconsistent with testimony. 
 
 Cited in Carpenter's Appeal, 74 Conn. 436, 51 Atl. 126, holding party sur- 
 prised by witness may, in discretion of court, examine him as to statements 
 contradictory of his testimony; Hall v. Chicago, R. I. & P. R. Co. 84 Iowa, 316, 
 51 X. W. 150, and Oldfather v. Zent, 21 Ind. App. 312, 52 N. E. 236, holding 
 examination permitted for purposes of proving recollection, showing testimony 
 incorrect, and affording opportunity to explain; Arnold v State, 5 Wyo. 446. 40 
 Pac. 967, holding unwilling witness may be interrogated, by party calling him, 
 concerning previous statements contradictory of his testimony; State v. Hughes, 
 8 Kan. App. 634, 56 Pac. 142, holding prosecution in criminal case may inter- 
 rogate witness as to statements previously made in affidavit inconsistent with 
 testimony; People v. Elco, 131 Mich. 530, 94 X. W. 1069, upholding right of 
 people to show contradictory statements of hostile witness called by district 
 attorney: Van Zandt v. State, 13 Ohio C. C. X. S. 527, 32 Ohio C. C. 138, holding 
 cross-examination by prosecuting attorney of state's witness concerning state- 
 ments by him at another time before grand jury and coroner not prejudicial error; 
 State v. Sederstrom, 99 Minn. 235, 109 X. W. 113, on the rule that a party who is 
 surprised by the testimony of a witness which he has called may be allowed to 
 show that the witness had previously made statements contrary to his testimony. 
 
 Disapproved in effect in Putnam v. United States, 162 U. S. 697, 40 L. ed. 
 1122. 16 Sup. Ct. Rep. 923, holding prosecution in criminal case not permitted 
 to refresh memory of witness by reference to testimony given before grand jury. 
 
 4 L. R. A. 171, WALLACE v. MYERS, 38 Fed. 184. 
 Succession of inheritance tax. 
 
 Followed in Plummer v. Coler, 178 U. S. 131, 134, 44 L. ed. 1007, 20 Sup. Ct. 
 Rep. 829, Affirming Re Plummer, 30 Misc. 20, 62 X. Y. Supp. 1024, holding suc- 
 cession tax a tax. not on property, but on its transmission by will or descent; 
 Re Wolfe. 2 Connoly. 617, 15 X. Y. Supp. 539, holding that a proceeding to enforce 
 a tax on legacies is not in rem; Re Tuigg, 2 Connoly, 635, 15 X. Y. Supp. 548, 
 holding a bequest of United States bonds subject to legacy tax. 
 
4 L.R.A. 171] L. R. A. CASES AS AUTHORITIES. 638 
 
 Cited in State v. Alston, 94 Tenn. 680, 28 L. R. A. 180, 30 S. W. 750, holding- 
 right of succession statutory, not natural, therefore taxable; Gelsthorpe v. Fur- 
 nell, 20 Mont. 304, 39 L. R. A. 173, 51 Pac. 267, and Minot v. Winthrop, 162 Mass. 
 119, 26 L. R. A. 262, 38 N. E. 512, holding inheritance tax of privilege is not 
 property; State v. Alston, 94 Tenn. 682, 28 L. R. A. 180, 30 S. W. 750, holding 
 exemption of direct descendants and estates less than $250 does not invalidate 
 inheritance tax act for want of uniformity; United States v. Perkins, 163 U. 
 S. 629, 41 L. ed. 288, 16 Sup. Ct. Rep. 1073; Cullom's Estate, 5 Mi.sc. 174, 25 N. 
 Y. Supp. 699; Re Merriam, 73 Hun, 589, 26 N. Y. Supp. 191, holding legacy 
 to United States subject to inheritance tax; Blackstone v. Miller, 188 U. S. 207 r 
 47 L. ed. 445, 23 Sup. Ct. Rep. 277, upholding validity of New York transfer 
 tax upon property of Illinois testator, deposited while law was in force; Booth 
 v. Com. (Rodman v. Com.) 130 Ky. 106, 33 L.R.A.(X.S.) 605, 113 S. W. 61, 
 holding inheritance tax valid though effect is to tax property otherwise exempt; 
 Re Vanderbilt, 2 Connoly, 322, 10 X. Y. Supp. 239, holding a statute requiring all 
 actions to recover a statutory penalty or forfeiture to be brought within two 
 years, from accrual of right has no application to proceedings to enforce a tax 
 on devolution of property; Atty. Gen. v. Lovitt, 35 X. S. 228, holding that a 
 bequest of debentures of the province of Nova Scotia exempted by statute from 
 taxation for provincial local or municipal purposes, is subject to valuation of 
 property for taxation under succession Duty act. 
 
 Cited in footnotes to Billings v. People, 59 L. R. A. 807, which sustains trans- 
 fer tax on lineal descendants to whom life estate given with remainder to lineal 
 descendants, but exempting lineal descendants taking fee; State v. Hamlin,' 25 
 L. R. A. 632, which holds succession tax valid; Drew v. Tifl't, 47 -L. R. A. 525, 
 which requires unifofmity and equal application in exemption from inheritance 
 tax; Re Swift, 18 L. R. A. 709, as to what is subject to succession tax; Ferry v. 
 Campbell, 50 L. R. A. 92, which holds succession tax void for want of notice 
 of proceedings to fix amount of tax. 
 
 Cited in notes (12 L. R. A. 402) on consideration of laws imposing collateral 
 inheritance tax ; ( 12 L. R. A. 852 ) on exemption of church property from special 
 assessment under exemption from taxes generally; (6 L.R.A.(X.S.) 736) on classi- 
 fication for purposes of succession tax on basis of amount; 9 L.R.A.(X.S.) 122) 
 on nature of right to take by will or inheritance; (23 L.R.A. (X.S.) 1208) on 
 applicability of general tax exemptions to inheritance or succession taxes; (33 
 L.R.A.(X.S.) 609) on nature of inheritance tax; (33 L.R.A.(X.S-) 594, 599; 41 
 Am. St. Rep. 581, 583) on constitutionality of collateral inheritance tax law; 
 (127 Am. St. Rep. 1065) on inheritance taxation; (1 Brit. Rul. Cas. 879) aa to 
 whether general exemption from taxation comprehends death duties. 
 License tax; foreign corporations. 
 
 Cited in Southern Cotton Oil Co. v. Wemple, 44 Fed. 25, holding taxation 
 of foreign corporations doing business within state not affected by taxability of 
 corporate property. 
 
 Cited in note (60 L. R. A. 339, 344) on constitutional equality in the United 
 States in relation to corporate taxation. 
 
 4 L. R. A. 173, ST. LOUIS, I. M. & S. R. CO. v. RICE, 51 Ark. 467, 11 S. W. 699. 
 Duty of master as to safety of appliances and place to Trorlc. 
 
 Cited In Southwestern Teleph. Co. v. Woughter, 56 Ark. 211, 19 S. W. 575, 
 holding master bound to use reasonable care, diligence, and caution in provid- 
 ing for safety of servant as to place to work and appliances; St. Louis & S. F. 
 R. Co. v. Fritts, 85 Ark. 463, 108 S. W. 841, holding employer not an insurer 
 of safety of appliances but to be under duty of using ordinary care in seeing 
 
639 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 173 
 
 that appliances are reasonably safe and are .so kept for their intended use; 
 St. Louis, I. M. & S. R. Co. v. Holmes, 88 Ark. 187, 114 S. W. 221, holding 
 refusal of instruction that failure to inspect raised no presumption of negli- 
 gence, proper; Murch Bros. Constr. Co. v. Hays, 88 Ark. 296, 114 S. W. 697, 
 holding that employer in construction of scaffolding used in erection of building 
 must use the diligence an ordinarily prudent person would use under similar 
 circumstances; Ozan Lumber Co. v. Bryan, 90 Ark. 227, 119 S. W. 73, holding 
 duty to provide safe appliances and place to work requires that he make rea- 
 sonable inspection to discover latent defects and dangers; Woodson v. Prescott 
 & N. W. R. Co. 91 Ark. 393, 121 S. W. 273, holding plaintiff entitled to a suitable 
 instruction presenting duty of master to properly inspect appliances; St. Louis r 
 I. M. &.S. R. Co. v. York, 92 Ark. 559, 123 S. W. 376, holding that where com- 
 pany fails to inspect couplings there is a failure to exercise ordinary care in 
 providing safe appliances; St. Louis, I. M. & S. R. Co. v. Rogers, 93 Ark. 569 r 
 126 S. W. 375, holding railroad liable for injury to brakeman from defective 
 car stirrup. 
 
 Cited in notes (41 L. R. A. 75) on duty of active inspection of instrumen- 
 talities; (41 L.R.A. 110, 111) on assignability of duty of inspection; (31 Am. St. 
 Rep. 349) on masters' duty to provide safe appliances and competent co-laborers; 
 (98 Am. St. Rep. 319) on liability to servant for injuries due to defective ma- 
 chinery and appliances. 
 Acts of servant constituting contributory negligence. 
 
 Cited in Bloyd v. St. Louis & S. F. R. Co. 58 Ark. 79, 41 Am. St. Rep. 85, 22 
 S. W. 1089, approving rule as to degree of care servant required to exercise for 
 nis own safety; Kansas & A. V. R. Co. v. White, 14 C. C. A. 484, 32 U. S. App. 
 192, 67 Fed. 483, holding that if accident causing injury would have happened, 
 and been attended with same results, even if party injured had not been guilty 
 of alleged negligent act, his negligence is not "contributory;" Bennett v. North- 
 ern P. R. Co. 2 N. D. 112, 13 L. R. A. 471, 49 N. W. 408, holding failure of 
 switchman to examine drawbar before making coupling, as rule required, con- 
 tributory negligence; Johnson v. Chesapeake & O. R. Co. 38 W. Va. 210, 18 S. 
 E. 573, holding brakeman uncoupling cars while in motion, contrary to rule, 
 guilty of contributory negligence; Keeley v. Cleveland, C. C. & St. L. R. Co. 158 
 111. App. 243, holding that brakeman cannot recover, where he knowingly violated 
 rule against going between cars to couple them. 
 
 Cited in footnote to Goodrich v. Xew York C. & H. R. R. Co. 5 L. R. A. 750,. 
 which holds brakeman not negligent per se in coupling cars with drawheads of 
 different heights. 
 
 Cited in notes (24 L. R. A. 657) on disobedience of master's rules as contribu- 
 tory negligence; (43 L. R. A. 366) on duty 'of servant in regard to rules promul- 
 gated by employer. 
 Who are fellow servants. 
 
 Cited in St. Louis, I. M. & S. R. Co. v. Brown, 67 Ark. 305, 54 S. W. 865, hold- 
 ing locomotive fireman and switchman on same train fellow servants; Kansas 
 City, Ft, S. & M. R. Co. v. Becker, 63 Ark. 487, 39 S. W. 358, holding that, if 
 neither engineer nor fireman on train have superintendence or control over the 
 other, they are fellow servants, otherwise not; Alabama G. S. R. Co. v. Carroll, 97 
 Ala. 129, 18 L. R. A. 435, 38 Am. St. Rep. 163. 11 So. 803, holding that car in- 
 spector is fellow servant of brakeman on freight train; Snellen v. Kansas City 
 Southern R. Co. 82 Ark. 337. 102 S. W. 193. holding a car repairer working on 
 a side track in the yards to be a fellow servant of a brakeman and switch crew; 
 Missouri, K. & T. R. Co. v. V"?e. 101 Tex. 462, 109 S. W. 112; Root v. Kansaa 
 
4 L.K.A. 173] L. R. A. CASES AS AUTHORITIES. 640 
 
 ity Southern R. Co. 195 Mo. 369, 6 L.R.A.(N.S.) 221, 92 S. YV. 621, on who are 
 fellow servants. 
 
 Cited in notes (4 L. R. A. 794) on who are fellow servants; (50 L. R. A. 420, 
 435) on what servants are deemed in common employment; (75 Am. St. Rep. 
 598, 599) on who is a vice principal. 
 Master's responsibility for incompetency of inspector. 
 
 Cited in note (54 L. R. A. 159) on negligence of coservants whose duty it is to 
 keep instrumentalities in proper condition. 
 Presumption tbat master has done bis duty. 
 
 Cited in St. Louis & S. F. R. Co. v. Hill, 79 Ark. 81, 94 S. W. 914, holding 
 that there is no presumption that company is negligent from the mere fact of a 
 wreck and injury to employee; St. Louis, I. M. & S. R. Co. v. Andrews, 79 Ark. 
 440, 96 S. W. 183, holding burden on injured person to show that master failed 
 to furnish reasonably safe place to work and negligence cannot be inferred 
 from occurrance of an injury; St. Louis & S. F. R. Co. v. Wells, 82 Ark. 375, 
 101 S. W. 738, holding negligence of company cannot be inferred from breaking 
 of coupling between engine and tender, burden of showing negligence being on 
 person so asserting; Chicago Mill & Lumber Co. v. Cooper, 90 Ark. 331, 119 S. 
 W. 672, holding a charge of negligence in using defective machinery causing 
 injury must be proven by preponderance of testimony as negligence of master 
 cannot be inferred from happening of the injury. 
 Inference as to verdict. 
 
 Cited in Merchants' Exch. Co. v. Sanders, 74 Ark. 18, 84 S. W. 786, 4 A. 4 E. 
 Ann. Cas. 955, holding that the court must draw the inference in favor of a 
 finding of jury that it was warranted by the evidence; Waters-Pierce Oil Co. v. 
 Knisel, 79 Ark. 622, 96 S. W. 342; St. Louis, I. M. & S. R. Co. v. Hill, 74 Ark. 
 480, 86 S. W. 303, holding that in determining whether verdict was warranted 
 by the evidence the strongest inference should be given in favor of the finding 
 of the jury. 
 
 4 L. R. A. 178, JONES v. BRITTON, 102 N. C. 166, 9 S. E. 554. 
 Homestead rights. 
 
 Cited in Vanstory v. Thornton, 112 N. C. 208 (dissenting opinion p. 212), 34 
 Am. St. Rep. 483, 17 S. E. 566, majority holding that exemption from execution 
 on judgments against vendor passes to purchaser of homestead; Stern v. Lee, 115 
 N. C. 445, 26 L. R. A. 817, 20 S. E. 736 (concurring opinion), and Gardner v. 
 Batts, 114 N. C. 504, 19 S. E. 794 (dissenting opinion) , majority in each case 
 holding enforcement of judgment against vendor of homestead postponed until 
 "his death and majority of youngest child; Tucker v. Tucker, 108 N. C. 237, 13 S. 
 E. 5, holding widow having homestead in husband's lands tenant for life within 
 statute providing for forfeiture to remainderman upon nonpayment of taxes; 
 Joyner v. Sugg, 132 N. C. 588, 44 S. E. 122, Affirming on rehearing, 131 N. C. 
 339, 42 S. E. 828, holding that entire title, less $1,000 worth, passed by deed of 
 trust by husband in which wife did not join, reserving homestead; Chadbourn 
 Sash, Door & Blind Co. v. Parker, 153 N. C. 134, 69 S. E. 1, holding that grantee 
 of judgment debtor cannot claim homestead as against levy on judgment against 
 latter prior to conveyance. 
 Of judgment creditors. 
 
 Cited in Younger v. Ritchie, 116 N. C. 784, 21 S. E. 911, holding judgment 
 creditors may set aside fraudulent conveyance of homestead; Vevan v. Ellis, i21 
 N. C. 234, 28 S. E. 471, holding statute of limitation of judgment lien suspended 
 during continuance of homestead, notwithstanding conveyance of land; Thomas v. 
 
641 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 190 
 
 Fulford, 117 N. C. 679, 23 S. E. 635, holding foreclosure of mortgage reserving 
 homestead rights does not cut off subsequent judgments; Springs v. Pharr, 131 N. 
 C. 194, 92 Am. St. Rep. 775, 42 S. E. 590, holding lien of judgment on homestead 
 not lost by creditors suing and obtaining second judgment thereon; Davenport 
 v. Fleming, 154 N. C. 295, 70 S. E. 472, holding that judgment creditor of debtor 
 who had made deed in trust for creditors reserving homestead, cannot enjoin 
 cutting of timber on homestead by debtor. 
 Injunction against \\ji>t- impairing security or reversion. 
 
 Cited in Farabow v. Green. 108 X. C. 343, 12 S. E. 1003, holding tenants for 
 life, with contingent interest in fee, may be enjoined from waste; Lancaster 
 County v. Fitzgerald, 74 Xeb. 436, 104 N. W. 875, 13 A. & E. Ann. Cas. 88, holding 
 county levying taxes may maintain suit against waste of real estate on which 
 taxes are past due and unpaid w r here the waste complained of would reduce value 
 of property to degree of its failure as security; Coffin v. Harris, 141 N. C. 713, 
 6 L.R.A. (X.S.) 127, 54 S. E. 437 (dissenting opinion), on the right of creditor 
 to restrain waste to property of debtor security for the debt, where waste com- 
 plained of is an impairment of the security. 
 
 Distinguished in Williams v. Brown, 127 X. C. 52, 37 S. E. 86, denying right to 
 enjoin mortgagee from foreclosing mortgage and from threatening to enjoin 
 mortgagor from cutting of timber. 
 Actions affecting title; necessary parties. 
 
 Cited in Springer v. Sheets, 115 X. C. 379, 20 S. E. 469, holding beneficiary 
 under trust deed necessary party to action to cancel prior mortgages and foreclose 
 trust deed. 
 
 4 L. R. A. 190, CITIZEXS' XAT. BAXK v. PIOLLET, 126 Pa. 194, 12 Am. St. 
 
 Rep. 860, 17 Atl. 603. 
 Effect of agreement written on note or bill. 
 
 Cited in Sawyer v. Campbell, 107 Iowa, 401, 78 N. W. 56, holding agreement 
 on face of note before delivery, to extend time of payment if asked for by all 
 makers, does not release sureties; De Hass v. Roberts, 59 Fed. 856, 24 Pittsb. L. 
 T. X. S. 274, holding that assignment indorsed on note without recourse destroyed 
 negotiability, and subsequent indorsement by transferee did not render him liable; 
 De Hass v. Dibert, 30 L. R. A. 192, 17 C. C. A. 83, 28 U. S. App. 559, 70 Fed. 
 231, holding indorser of note, assigned to him by payee without indorsement, li- 
 able to his indorsee. 
 What instruments are negotiable. 
 
 Cited in Washington County v. Williams, 49 C. C. A. 626, 111 Fed. 806, holding 
 Bounty bonds issued to aid in construction of railroad, and made payable by 
 taxation, not negotiable; Iron City Xat. Bank v. McCord, 139 Pa. 59, 27 W. X. 
 C. 153, 11 L. R. A. 560, 23 Am. St. Rep. 166, 21 Atl. 143, holding order requiring 
 notice ticket and depositor's book to be presented on payment, non-negotiable; 
 Valley Xat. Bank v. Crowell, 148 Pa. 286, 33 Am. St. Rep. 824, 23 Atl. 1068, hold- 
 ing statement on note that collateral accompanies it does not destroy negotiabil- 
 ity; Benny v. Dunn, 2 Lack. Legal Xews, 138, 26 Pittsb. L. J. X. S. 382, holding 
 note providing for sale of stock deposited as collateral if depreciating before ma- 
 turity, and for attorney's fee, not negotiable; City Xat. Bank v. Gunter Bros. 67 
 Kan. 233, 72 Pac. 842, holding note containing agreement by makers and indorsers 
 to all extensions and partial payments not negotiable; Union Stock Yards Xat. 
 Bank v. Bolan, 14 Idaho, 94, 125 Am. St. Rep. 146, 93 Pac. 508, holding a 
 promissory note containing stipulation waiving notice of extension of time to 
 sureties, guarantors, indorsers and makers, and waiving right of defense for 
 L.R.A. Au. Vol. I. 41. 
 
4 L.R.A. 190] L. R. A. CASES AS AUTHORITIES. 642 
 
 extension without notice is non-negotiable subject to all defenses and 
 equities in favor of maker while in hands of indorsee the same as if in hands 
 of payee thereof: first Xat. Bank v. Buttery, 17 X. D. 333. 16 L.R.A. (X.S.) 
 882, 116 X. W. 341, 17 A. & E. Ann. Cas. 52 (dissenting opinion), on non-nego- 
 tiability of a note on face of which is written an agreement for renewal at ma- 
 turity; Xeyens v. Port, 46 Pa. Super. Ct. 431, holding that written order for 
 goods ending with words of a promissory note is not negotiable; Xational Bank 
 v. Kenney, 35 Tex. Civ. App. 435, 80 S. W. 555, holding a note non-negotiable 
 where containing provision for waiver of protest by makers and indorsers for 
 nonpayment at maturity, and agreeing to extension and partial payments. 
 
 Cited in footnote to Xational Bank of Commerce v. Feeney, 46 L. R. A. 732, 
 which holds note rendered non-negotiable by stipulation for discount at 12 per 
 cent if paid before maturity. 
 
 Cited in notes (8 L. R. A. 394) on stipulations and agreements which destroy 
 negotiability; (31 L. R. A. 235) on provision for refusal as affecting negotiabil- 
 ity of note; (4 Eng. Rul. Cas. 192) on negotiability of note or bill of exchange. 
 
 Distinguished in Anniston Loan & T. Co. v. Stickney, 108 Ala. 150, 31 L. R. A. 
 237, 19 So. 63, holding that agreement to extend time of payment to definite pe- 
 riod, indorsed on note, does not destroy negotiability. 
 
 4 L. R. A. 193, PEARSALL v. EATON COUXTY, 74 Mich. 558, 42 X. W. 77. 
 Rights of abutting: otvners in street or stream. 
 
 Cited in Callen v. Columbus Edison Electric Light Co. 66 Ohio St. 177. 58 L. 
 R. A. 786, 64 N. E. 141, enjoining maintenance of poles and wires in corner of 
 lot on street; Bigelow v. Ballerino, 111 Cal. 564, 44 Pac. 307, holding abutting 
 owners right to use of street, property which cannot be taken without compensa- 
 tion; Long v. Wilson, 119 Iowa, 271, 60 L. R. A. 722, 97 Am. St. Rep. 315, 93 
 N. W. 282, holding abutting owner not bound by decree against city changing 
 boundaries of street, to which he was not party; Lathrop v. Racine, 119 Wis. 
 473, 97 N. W. 192, holding invalid, charter provisions authorizing city to order 
 riparian owners to build or pay for docks regardless of benefits: Marietta Chair 
 Co. v. Henderson, 121 Ga. 405, 104 Am. St. Rep. 156, 49 S. E. 312, 2 A. & E. 
 Ann. Cas. 83, on the right of abutting property owners to compensation for loss 
 sustained by vacation of streets; Ridgway v. Osceola, 139 Iowa. 594. 117 X. W. 
 974, holding that where a street or alley is necessary to the free and convenient 
 access to abutting property such street or alley cannot be vacated without pay- 
 ment of damages to owner of such property; Smith v. Beloit, 122 Wig. 416. 100 
 X. W. 877, holding that an order of supervisors vacating a part of a road does 
 not destroy the rights of abutting landholders to use such vacated part as a 
 road where the road as originally platted has been used for over 30 years; 
 Johnston v. Lonstorf, 128 Wis. 27, 107 X. W. 459, holding that neither the city 
 charter nor the laws authorizing vacation of streets authorize a vacation of part 
 of an alley without compensating protesting abutting owners. 
 
 Cited in footnotes to Lostutter v. Aurora, 12 L. R. A. 259, which authorizes city 
 to fit up abandoned well in street without abutting owner's consent; Levee Dist. 
 Xo. 9 v. Farmer, 23 L. R. A. 388, which holds discontinuance of road not taking 
 or damaging of abutter's property. 
 
 ' Cited in notes (26 L. R. A. 663, 665) on effect of abandonment of highway; (5 
 L. R. A. 661) on protection of private rights by constitutional law; (26 L. R. A. 
 456) on abandonment of highway by nonuser or otherwise than by act of public 
 authorities; (2 L.R.A.(X.S.) 269) on right of property owner whose access 
 from one direction is shut off or interfered with by closing of street; (15 L.R.A. 
 
643 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 196 
 
 (X.S.) 50) on cutting off access to highway as a taking; (27 Am. St. Rep. 419; 
 46 Am. St. Rep. 496) on recovery of damages for vacation of street. 
 
 Distinguished in Levee Dist. No. 9 v. Farmer, 101 Cal. 184, 23 L. R. A. 390, 35 
 Pac. 569, holding vacation of public road cannot be enjoined; Buhl v. Ft. Street 
 Union Depot Co.. 98 Mich. 608, 23 L. R. A. 396, 57 N. W. 829, holding partial 
 closing and occupation of street by depot company damnum absque injuria as to 
 abutting owner; Curry v. Place, 99 Mich. 527, 58 N. W. 472, holding proceedings 
 of supervisors in closing highway without notice and void; Cram v. Laconia, 71 
 N. H. 48, 57 L. R. A. 286, 51 Atl. 635, holding discontinuance of part of street 
 without cutting off access to general system is damnum absque injuria; Backus 
 v. Ft. Street Union Depot Co. 16!) U. S. 585, 42 L. ed. 864, 18 Sup. Ct. Rep. 445 
 (dissenting opinion), majority holding that no error in state court's ruling 
 as to compensation. 
 Injury to property by eminent domain. 
 
 Cited in Stockdale v. Rio Grande Western R. Co. 28 Utah, 211, 77 Pac. 849, 
 holding that any substantial interference with private property materially re- 
 ducing its value or by which the owners right to. its use and enjoyment is 
 abridged or lost is a taking of private property though possession of owner 
 remains undisturbed. 
 
 Cited in note (109 Am. St. Rep. 913) on what constitutes ''damage" to prop- 
 erty within provision that property shall not be taken or damaged for public 
 use without compensation. 
 Necessity for notice in condemnation proceedings. 
 
 Cited in note (4 L.R.A. (X.S.) 170) on necessity of providing in statute for 
 notice of hearing on question of damages for compensation in condemnation. 
 
 4 L. R. A. 194, COOPER v. SIMPSON, 41 Minn. 46, 16 Am. St. Rep. 667, 42 N. 
 
 W. 001. 
 Liability for laches in care of property. 
 
 Cited in Lindley v. Sullivan, 133 Ind. 593, 32 N. E. 738, holding negligence in 
 making collections on notes not shown; Minneapolis & N. Elevator Co. v. Betcher, 
 42 Minn. 211. 44 X. W. 5, holding pledgee not compelled to sell pledged property 
 at request of pledgeor; Loomis v. Reimers, 119 Iowa. 172, 93 N. W. 95, holding 
 bailee not liable for loss of goods replevied, for failure to defend action; Johnson 
 v. Downing, 76 Ark. 131, 88 S. W. 825, holding that the pledgees of a note as 
 collateral security are bound to use only reasonable diligence to collect it and 
 are liable only for negligence in failing to properly enforce the collection of the 
 note, and protect the owner from loss. 
 
 Cited in notes (17 L.R.A. 194; 83 Am. St. Rep. 392) on duty of pledgee as to 
 care of thing pledged. 
 
 Distinguished in Townsend v. Minneapolis Cold-Storage & Freezer Co. 46 Minn. 
 125, 48 X. W. 682. holding lien claimed for storage may be offset by damages 
 in excess of lien; Powell v. Gagnon, 52 Minn. 236, 53 X. W. 1148. holding void 
 foreclosure of chattel mortgage does not affect rights of parties to it. 
 
 4 L. R. A. 196, ^YILSOX v. HAYES, 40 Minn. 531, 12 Am. St. Rep. 754, 42 N. W. 
 
 467. 
 Defects in redemption proceedings. 
 
 Cited in Todd v. Johnson, 50 Minn. 314, 52 X. \Y. 864, holding defects in pro- 
 ceedings to redeem can be taken advantage of only by lienors and person from 
 whom redemption made; Sardeson v. Menage. 41 Minn. 310. 4.3 X. \Y. 66, holding 
 owner of land on redeeming from sheriff's sale on mortgage foreclosure need not 
 file documents produced to officer; Lightbody v. Lamniers, 98 Minn. 204, 108* 
 
4 L.R.A. 196] L. R. A. CASES AS AUTHORITIES. 644 
 
 N. W. 846, holding proof of heirship to person entitled to redeem is sufficient to 
 entitle party to redeem without the production of any records it not appearing 
 any probate proceedings have been completed. 
 Alteration of instruments. 
 
 Cited in Maldaner v. Smith, 102 Wis. 36, 78 N. W. 140, and Franklin v. Baker, 
 48 Ohio St. 304, 29 Am. St. Rep. 547, 27 N. E. 550, upholding presumption in 
 iavor of alteration before delivery of note; Montgomery v. Crossthwait, 90 Ala. 
 573, 12 L. R. A. 144, 24 Am. St. Rep. 832, 8 So. 498, holding that ratification of 
 materially altered instrument does not require new consideration to support it; 
 Moddie v. Breiland, 9 S. D. 511, 70 N. W. 637, holding signature of altered note 
 having been proved, note should be admitted; Cass County v. American Exch. 
 State Bank, 9 N. D. 265, 83 N. W. 12, and Klein v. German Nat. Bank, 69 Ark. 
 144, 86 Am. St. Rep. 183, 61 S. W. 572, sustaining right to introduce altered in- 
 strument in evidence without first explaining alterations; Richardson v. Fellner, 9 
 Okla. 520, 60 Pac. 270, holding change of "on" to "and" in note reciting that it 
 is given for "purchase price of buildings on lot" material; First Xat. Bank v. 
 Liewer, 109 C. C. A. 70, 18? Fed. 18; Colby v. Foxworthy, 80 Neb. 242, 114 X. W. 
 174, holding the burden of proof is upon the party alleging the material altera- 
 tion of an instrument of showing when it was altered; O. N. Bull Remedy Co. v. 
 Clark, 109 Minn. 399, 33 L.R.A.(N.S.) 522, 124 N. W. 20, 18 Ann. Cas. 413, 
 holding that cross-marking of material provision in contract, after its execution, 
 by one party, without other's consent, is material alteration; Farmers' Nat. 
 Bank v. Mc'Call, 25 Okla. 605, 26 L.R.A.(N.S-) 220, 106 Pac. 866, holding that 
 material alteration of note intentionally made by party entitled to any benefit 
 under it extinguishes all executory obligations. 
 
 Cited in footnotes to Rochford v. McGee, 61 L. R. A. 335, which holds removal 
 of note written below perforated line on application for insurance, material al- 
 teration rendering it void; Gleason v. Hamilton, 21 L. R. A. 210, which holds 
 mortgage not invalidated by alteration by attorney drawing same without mort- 
 gagee's knowledge; Brown v. Johnson Bros. 51 L. R. A. 403, which holds maker 
 released by payee's addition of name of other person as comaker; Simmons v. 
 Atkinson & L. Co. 23 L. R. A. 599, which holds insertion of words "or bearer" and 
 place of payment a material alteration; Foxworthy v. Colby, 62 L. R. A. 393, 
 which holds insertion of word "gold" before word "dollars," material alteration of 
 bond and mortgage; Foxworthy v. Colby, 62 L.R.A. 39.', which holds unauthorized 
 insertion of word "gold" before word "dollars." 
 
 Cited in notes (13 L. R. A. 314) on duty of party producing instrument to ac- 
 count for alteration; (6 L. R. A. 469) on effect of alteration of written instru- 
 ment; (12 L. R. A. 140) on necessity of consideration to validity of ratification 
 of altered note; (86 Am. St. Rep. 97, 122, 126, 127, 128, 132, 133) on unauthor- 
 ized alteration of written instruments; (39 L.R.A.(N.S.) 103, 104, 112, 113) 
 on presumption as to time of alteration in instrument and its effect on burden 
 of proof. 
 
 Distinguished in Taylor v. Acorn, 1 Ind. Terr. 442, 45 S. W. 130, holding addi- 
 tion of another name to the makers of note not material alteration ; Fletcher v, 
 Minneapolis F. & M. Mut. Ins. Co. 80 Minn. 154, 83 N. W. 29, holding alteratio* 
 of policy rendering it void not waived. 
 Ratification of note fraudulently obtained or altered. 
 
 Cited in First Nat. Bank v. Holan, 63 Minn. 530, 65 N. W. 952, holding note 
 procured from maker by fraud not ratified per se by mere promise to pay or 
 procuring of extension of time to pay; Holyfield v. Harrington, 84 Kan. 763, 39 
 Jj.R.A. (N.S.) 135, 115 Pac. 546, holding new consideration unnecessary to rati- 
 
645 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 205 
 
 fication of material alteration of note; Shuman v. Steinel, 129 Wis. 427, 7 
 L.R.A. (X.S.) 1052, 116 Am. St. Rep. 961, 109 X. W. 74, 9 A. & E. Ann. Cas. 1064, 
 as to when act is capable of ratification. 
 
 Cited in notes (36 L.R.A. (N.S.) 1015) on ratification of forged instrument; 
 (39 L.R.A. (X.S. ) 132) on necessity of consideration for ratification of un- 
 authorized alteration. 
 
 Disapproved in effect in State v. Paxton, 65 Xeb. 131, 90 N. W. 983, holding no 
 consideration required for ratification by sureties of alterations in official bond. 
 
 4 L. R. A. 202, MIXXEAPOLIS MILL CO. v. GOODXOW, 40 Minn. 497, 42 N. W. 
 
 356. 
 Mutual promises as consideration for contract. 
 
 Cited in Sanitary District v. McMahon & M. Co. 110 111. App. 523, holding cor- 
 poration employing contractor to build drainage canal, liable for damages caused 
 by delay in furnishing right of way; Jordan v, Indianapolis Water Co. 159 Ind. 
 345, 64 N. E. 680, holding agreement permitting one to draw water from canal 
 at certain seasons for stipulated rent, a contract, and not a license; Ames Brooks 
 Coi v. .Etna Ins. Co. 83 Minn. 350, 86 X. W. 344, holding mutual promises suf- 
 ficient consideration for contract; Ben C. Jones & Co. v. Gammel-Statesman Pub. 
 Co. 100 Tex. 333, 8 L.R.A. (X.S.) 1203, 99 S. W. 701, holding under a contract 
 by which one party was to print certain books from manuscript furnished by the 
 other party a promise to furnish such manuscript would be implied. 
 Construction of contracts. 
 
 Cited in Indianapolis Xorthern Traction Co. v. Brennen, 174 Ind. 25, 30 
 L.R.A. (X.S.) 99, 87 X. E. 215, holding electric railroad liable for damages for 
 delaying contractor of overhead work by its failure to have its track in agreed 
 condition. 
 
 Cited in notes (6 L. R. A. 702) as to when promise is not implied in contract; 
 (12 L. R. A. 376) on construction of terms used in contract. 
 
 Distinguished in Hoffman v. Maffioli, 104 Wis. 637, 47 L. R. A. 430, 80 N. W. 
 1032, holding that offer to furnish contractor stone "in such quantities as may be 
 desired" does not imply promise to furnish all stone required by contractor. 
 3Iutnality of contracts. 
 
 Cited in Thomas-Huycke-Martin Co. v. Gray, 94 Ark. 12, 140 Am. St. Rep. 
 93, 125 S. W. 659, holding that contract to buy output of sawmill at certain 
 price implies agreement to sell; Dreiske v. Davis Colliery Co. 156 111. App. 296, 
 holding that agreement to provide space for storage of certain amount of coal 
 implies agreement to store such coal; Dille v. Parker, 204 Mass. 165, 90 X. E. 
 520, holding that agreement of partner to buy another partner's interest at 
 certain price implies* agreement to accept such price; Stewart v. Herron, 77 
 Ohio St. 149, 82 X. E. 956, holding contract not wanting in mutuality which 
 provided for the sale of corporate stock, the vendor to remain in possession until 
 certain dividends accrued and no time stipulated therein for payment. 
 
 4 L. R. A. 205. AXDERSOX v. PILGRAM, 30 S. C. 499, 14 Am. St. Rep. 917, 9 
 
 S. E. 587. 
 Mortgage securing- several notes. 
 
 Cited in Interstate Bldg. & L. Asso. v. McCartha, 43 S. C. 75, 20 S. E. 807. 
 holding single mortgage may be given to secure several bonds or notes. 
 Action on instalment of debt not bar to snit for remainder. 
 
 Cited in McMakin v. Fowler, 34 S. C. 288, 13 S. E. 534, holding action on two 
 of series of five notes not bar to action on remaining notes though same referred 
 
4 L.R.A. 205] L. R. A. CASES AS AUTHORITIES. 646 
 
 to in complaint as part of consideration for property, when former notes only 
 submitted to jury. 
 
 Cited in note (37 L. R. A. 747) on proceedings to enforce mortgage for part 
 of mortgage debt. 
 Maintaining separate actions upon note anil mortgrag'e. 
 
 Cited in notes (73 Am. St. Rep. 566) on right of mortgagee, etc., to main- 
 tain action at law on the debt concurrently with foreclosure; (18 Eng. Rul. Cas. 
 442) on mortgagee's right to proceed on all remedies at one time. 
 
 Distinguished in Curtis v. Renneker, 34 S. C. 494, 13 S. E. 664, holding objec- 
 tion of another action pending waived if not pleaded. 
 
 4 L. R. A. 209, SOUTH CAROLINA S. B. CO. v. SOUTH CAROLINA R. CO. 30 
 
 S. C. 539, 14 Am. St. Rep. 923, 9 S. E. 650. 
 Right of private action for public nuisance. 
 
 Cited in Baltzeger v. Carolina Midland R. Co. 54 S. C. 249, 71 Am. St. Rep. 789, 
 32 S. E. 358, holding complaint for damages for public nuisance must allege spe- 
 cial or peculiar damage to plaintiff; The John C. Sweeney, 55 Fed. 539, and South 
 Carolina S. B. Co. v. Wilmington, C. & A. R. Co. 46 S. C. 334, 33 L. R. A. 541, 
 57 Am. St. Rep. 688, 24 S. E. 337, holding damages from obstruction of navi- 
 gable river must be peculiar to plaintiff and different in kind from that suf- 
 fered by others; Threatt v. Brewer Min. Co. 49 S. C. 131, 26 S. E. 970, holding 
 party seeking damages for obstruction of neighborhood road must show special 
 injury not common to public; Cherry v. Rock Hill, 48 S. C. 561. 26 S. E. 798, 
 holding change in course of street by city authorities does not give right of action 
 to resident compelled to take more circuitous route ; Carmichael v. Texarkana, 94 
 Fed. 573, holding individual may maintain action to abate nuisance caused by 
 discharge of city's sewage upon lands near his residence; Connecticut River Lum- 
 ber Co. v. Olcott Falls Co. 65 N. H. 377, 13 L. R. A. 830, 21 Atl. 1090, as tending 
 to support contention that action cannot be maintained by private person to abat<> 
 public nuisance; Manson v. South Bound R. Co. 64 S. C. 123, 41 S. E. 832, holding 
 fiction not maintainable by owners of property not abutting on public park to 
 enjoin its use as railway station; Thomas v. Wade, 48 Fla. 313, 37 So. 743, holding 
 a private user of navigable stream cannot bring suit to abate obstruction by 
 spanning bridge unless he alleges and proves that he suffers special injury dif- 
 ferent in degree and kind from that sustained by the public; State ex rel. Guen- 
 ther v. Charleston Light & Water Co. 68 S. C. 553, 47 S. E. 979, holding that 
 mandamus will not be granted to compel removal of obstruction in a navigablo 
 stream unless petitioner shows special injury therefrom other that common to 
 the general public; Drews v. Burton, 76 S. C. 366, 57 S. E. 176, holding that 
 where special injury is sustained from obstruction of a navigable stream the 
 person injured may recover damages therefor; McMeekin v. Central Carolina 
 Power Co. 80 S. C. 516, 128 Am. St. Rep. 885, 61 S. E. 1020, holding a showing 
 of special damage not common to general public necessary to civil remedy for 
 public nuisance; Gray v. Charleston & W. C. R. Co. 81 S. C. 372. 62 S. E. 442. 
 liolding allegation and proof of obstruction in public highway and of direct and 
 special damages resulting necessary to civil action for abatement or damages . 
 Barksdale v. Charleston & W. C. R. Co. 83 S. C. 292, 64 S. E. 1013, holding that 
 an injury to land on a navigable stream caused by a public nuisance affecting 
 the rights of navigation entitles the owner to sue. 
 
 Cited in footnotes to Farmers' Co-Op. Mfg. Co. v. Albemarle & R. R. Co. 29 L. 
 R. A. 700, which authorizes private action for public nuisance by one having com- 
 mon misfortune with class of persons, but not with entire public; Griffith v. Hoi- 
 man, 54 L. R. A. 178, which denies private individual's right to abate public nui- 
 
647 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 213 
 
 sance consisting of fence across navigable stream; South Carolina S. B. Co. v. 
 Wilmington, C. & A. R. Co. 33 L. R. A. 541, which denies steamboat owner's right 
 of action for obstructing navigation of river; Kuehn v. Milwaukee, 18 L. R. A. 
 553, which denies private suit for injury to public fishery; Pittsburgh, Ft. W. 
 & C. R. Co. v. Cheevers, 24 L. R. A. 15(5, which denies right of company to enjoin 
 congregating of hotel runners, etc., in front of station; Megargee v. Philadelphia, 
 19 L. R. A. 221, which denies right of action for defects in street leading to ware- 
 house injuring business and teams; Reyburn v. Sawyer, 65 L.R.A. 930, which 
 sustains right of owner of island to injunction against maintenance of fishing 
 nets in adjoining waters so as to obstruct navigation. 
 
 Cited in notes (4 L. R. A. 573) on remedy by injunction to protect right of 
 riparian owner; (40 L. R. A. 465) on injunction by municipalities against nui- 
 sances in waters and water courses; (9 L. R. A. 717) on remedy by action for 
 damages for nuisance; (10 L. R. A. 255) on casting water on land as nuisance; 
 (59 L.R.A. 83, 90) on right to obstruct or destroy rights of navigation; (57 Am. 
 St. Rep. 693, 696, 697; 38 L.R.A. (N.S.) 766) on private right of action for ob- 
 struction of navigable stream; (1 Eng. Rul. Cas. 598) on nonliability to indi- 
 vidual for injury suffered in common with public generally. 
 
 Distinguished in Mauldin v. Greenville, 33 S. C. 18, 8 L. R. A. 294, 11 S. E. 434, 
 holding resident taxpayer may maintain action to enjoin city council from pur- 
 chasing and operating electric light plant, and from issuing bonds in payment 
 thereof contrary to law; Jones v. Seaboard Air Line R. Co. 67 S. C. 194, 45 
 S. E. 188, holding railway company liable to owner of land on navigable stream 
 for damages for obstructing flow of freshet waters. 
 
 4 L. R. A. 213, WOODMAN v. METROPOLITAN R. CO. 149 Mass. 335, 14 Am. 
 
 St. Rep. 427, 21 N. E. 482. 
 Neg'lift'eiice of independent contractor. 
 
 Cited in Cabot v. Kingman, 166 Mass. 406, 33 L. R. A. 46, 44 N. E. 344, hold- 
 ing if duty arises from thing to be done, responsibility attaching of seeing duty 
 performed cannot be escaped by delegating performance to contractor ; Curtis v. 
 Kiley, 153 Mass. 126, 26 N. E. 421, holding if work likely to render premises 
 dangerous, owner not relieved from obligation of set- ing clue care is used by em- 
 ployment of independent contractor; Pye v. Faxon, 156 Mass. 474, 31 N. E. 640, 
 holding owner liable for negligence if performance of lawful contract neces- 
 sarily will bring wrongful consequences to pass, unless guarded against; Wether- 
 bee v. Partridge, 175 Mass. 186, 78 Am. St. Rep. 486, 55 N. E. 894, holding blast- 
 ing rock so evidently attended with wrongful consequences unless guarded against 
 as to impose duty on principal to see due cure used; Robbins v. Atkins, 168 
 Ma~^. 47. 4(3 X. E. 425, holding owner of tenement liable for injury from giving 
 way of cellar stairs, due to contractor, employed to deepen cellar, removing sup- 
 port; Wertheimer v. Saunders, 95 Wis. 580, 37 L. R. A. 148, 70 N. W. 824, hold- 
 ing landlord undertaking to put on new roof, at request of tenant, liable for 
 injury from elements due to want of 'care and skill of contractor; Reynolds v. 
 Van Beuren, 10 Misc. 7"07, 31 N. Y. Supp. 827, holding lessee of roof privilege 
 for advertising liable for injury from fall of sign erected by independent con- 
 tractor; Cameron v. Oberlin, 19 Ind. App. 147, 48 X. E. 386, holding landowner 
 employing contractor to clear up land liable for negligence of latter in permitting 
 fire to escape to adjacent lands; Johnston v. Phoenix Bridge Co. 44 App. Div. 
 584, 60 X. Y. Supp. 913, holding contractor who sublets contract for building 
 elevated railroad liable for injury to pedestrian from fall into excavation in 
 sidewalk, left unguarded by subcontractor: Thomas v. Harrington, 72 N. H. 48, 
 65 L. R. A. 750, 54 Atl. 285, holding owner liable for negligence of contractor 
 
4 L.R.A. 213] L. R. A. CASES AS AUTHORITIES. 648 
 
 laying water pipe, in not guarding trench; Colgrove v. Smith (Cal.) 27 L. R. A. 
 591, 36 Pac. 411, holding water company liable for negligence of independent 
 contractor in failing to cover pipes; Benjamin v. Metropolitan Street R. Co. 
 133 Mo. 285, 34 S. W. 590, holding that failure of independent contractor de- 
 livering coal, to properly replace cover of manhole, will not relieve owner from 
 liability for resulting injury; North Chicago Street R. Co. v. Dudgeon, 184 111. 
 482, 56 N. E. 796, Affirming 83 111. App. 532, holding street railroad repairing 
 track under authority of charter and special permit, responsible for negligence 
 of contractor leaving paving stone piled near track; Downey v. Low, 22 App. 
 Div. 462, 48 N. Y. Supp. 207, applying same rule where contractor employed to 
 remove ashes left coal chute open and unguarded; Lorenzo v. Wirth, 170 Mass. 
 602, 40 L. R. A. 349, 49 N. E. 1010 (dissenting opinion), majority holding lessee 
 of premises not liable, under circumstances of case, for injury to pedestrian from 
 falling into unguarded coal hole; Luce v. Holloway, 156 Cal. 165, 103 Pac. 886. 
 holding contractor liable for injury caused by negligence of independent sub-con- 
 tractor causing derailment of engine, where it appeared from the nature of the 
 work that such would be the result unless vigilance was used; Keyes v. Second 
 Baptist Church, 99 Me. 310, 59 Atl. 446, holding an independent contract does 
 not relieve the employer from liability for injury caused by contractor in failing 
 to put up barriers and warnings in making building repairs necessarily dan- 
 gerous to passing public; Symons v. Allegany County, 105 Md. 262, 65 Atl. 
 1067, holding road directors not liable for negligent use of a stone quarry by 
 independent contractor loaned to him by directors where such quarry and nature 
 of contract is not necessarily dangerous; Davis v. John L. Whiting Son & Co. 
 201 Mass. 93, L.R.A.(N.S.) , 87 N. E. 199, holding owner of building not 
 liable for injury caused by employees of independent contractor through their un- 
 skillful execution of the work under the contract of the condition of the build- 
 ing not causing any particular danger; Boucher v. New York. X. H. & H. R. Co. 
 196 Mass. 360, 13 L.R.A.(N.S.) 1180, 82 N. E. 15, holding the operation of gates 
 by independent contractor at a grade crossing in a crowded street necessarily dan- 
 gerous, does not relieve the company from liability for negligence of gate tender: 
 Carey v. Baxter, 201 Mass. 526, 87 N. E. 901, on liability for negligence of in- 
 dependent contractor in leaving unguarded space from which steps were removed ; 
 Ray v. Jones & A. Co. 92 Minn. 106, 99 N. W. 782, holding that the owner of a 
 building allowing the opening of a coal hole by servant of deliverer of coal 
 owed the duty to see that ordinary care is used in keeping passersby from in- 
 jury therefrom; Thomas v. Wisconsin C. R. Co. 108 Minn. 489, 23 L.R.A. (X.S.) 
 959, 122 N. W. 456, holding that master owes to his servants that he will use 
 reasonable care in protecting them from negligence of independent contractor put 
 in action where such servants are at work; Eberson v. Continental Invest. Co. 
 130 Mo. App. 307, 109 S. W. 62, holding lessor liable to lessee for negligence of 
 lessor's independent contractor in making repairs on leased premises where such 
 work is necessarily dangerous to lessees' property or life; O'Hara v. Laclede Gas- 
 light Co. 131 Mo. App. 437, 452, 110 S. W. 642, holding that where it is duty of 
 employer to personally guard street temporarily obstructed, it is immaterial 
 whether a sub-contractor causing injury by negligence was independent or not, to- 
 fix liability of company; Thomas v. Hammer Lumber Co. 153 X. C. 357. 32 L.R.A. 
 (N.S.) 587, 69 S. E. 275, holding owner of logging railroad liable for fire on 
 adjoining premises from defective engine operated by independent contractor; 
 Thomas v. Harrington, 72 N. H. 48, 65 L.R.A. 750, 54 Atl. 285, holding owners 
 of house liable for injury caused by negligence of independent contractor in leav- 
 ing ditch open and unguarded which was made for purpose of piping house for 
 water; Stevens v. United Gas & Electric Co. 73 N. H. 169, 70 L.R.A. 124, 60 AtL 
 
649 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 213 
 
 848, holding the duty imposed on one maintaining electric wires of high voltage 
 to protect invitees from injury cannot be delegated; McHarge v. Newcomer, 117 
 Tenn. 614, 9 L.R.A. (N.S.) 302, 100 S. W. 700, holding owner of building liable 
 for injury to passerby on crowded street, from fall of awning roller being put 
 up by independent contractor, owner not taking precautions to protect passersby; 
 Cameron Mill & Elevator Co. v. Anderson, 34 Tex. Civ. App. 108, 78 S. W. 8, 
 holding that where the injury is the direct result of the work authorized to be 
 done by the contractor the employer is liable ; Vickers v. Kanawha & W. V. R. Co. 
 04 W. Va. 478, 20 L.R.A.(X.S.) 797, 131 Am. St. Rep. 929, 63 S. E. 367, holding 
 railroad company liable for injury to servant caused by negligence of independ- 
 ent contractor, the duty of company to provide safe place to work being un- 
 assignable; Wagner v. Boston Elev. R. Co. 188 Mass. 443, 74 N. E. 919, holding 
 a contract by which sub-contractor agreed to indemnify street railway company 
 for injuries cavised his employees by servants of company does not relieve com- 
 pany from liability for injury to such employees caused by negligent operation of 
 defendants street cars. 
 
 Cited in notes (14 L.R.A. 829, 834) on exceptions to rule that employer is 
 not liable for acts of independent contractor; (65 L.R.A. 845, 854) on liability for 
 injuries caused by performance of work by independent contractor which is dan- 
 gerous unless certain precautions are observed; (21 Am. St. Rep. 179) on liabil- 
 ity of railroad company for injuries inflicted by construction company;" (76 
 Am. St. Rep. 414, 415: 19 Eng. Rul. Cas. 187) on liability for injury due to 
 negligence of independent contractor. 
 
 Distinguished in Boomer v. Wilbur, 176 Mass. 484, 53 L. R. A. 173, 57 N. E. 
 1004, holding repair of chimney not necessarily nuisance requiring owner to 
 guard against injury to passer-by from fall of brick; Independence v. Slack, 
 134 Mo. 76, 34 S. W. 1094. holding owner not liable for injury from stone per- 
 mitted to remain in street by contractor employed to construct sidewalk; Leavitt 
 v. Bangor & A. R. Co. 89 Me. 520, 36 L. R. A. 384, 36 Atl. 998, holding railroad 
 contracting for sawing of wood along road, not liable for fire set by cooking car 
 of contractor, placed by railroad on spur track; Quinn v. Crimmings, 171 Mass. 
 256, 42 L. R. A. 102, 68 Am. St. Rep. 420, 50 X. E. 624, holding where duty to 
 maintain partition fence rests on one of two adjoining proprietors, other is not 
 liable for injury to third person from fall of fence; Hoff v. Shockley, 122 Iowa, 
 728, 64 L. R. A. 542, 98 X. W. 573, holding owner not liable for negligence of 
 independent contractor building house in failing to light street obstruction. 
 Sufficiency of evidence to sustain finding:. 
 
 Cited in Miller v. Inman, 40 Or. 166, 66 Pac. 713, holding evidence that de- 
 ceased's clothes were found' wrapped around a coupling, sufficient to sustain 
 finding that projecting bolt caused his death. 
 ZVeg-ligence of street rail-way company. 
 
 Cited in note (52 L. R. A. 452, 462) on liability of street railway company 
 for defect in track or street. 
 
 Distinguished in Millie v. Manhattan R. Co. 5 Misc. 303, 25 N. Y. Supp. 753, 
 holding elevated railroad company not liable for injury to passenger tripping 
 and falling on its stairway. 
 Duty to prevent injury from lawful acts. 
 
 Cited in Deming v. Terminal R. Co. 49 App. Div. 500, 63 N. Y. Supp. 615, 
 holding permission to obstruct highway carries with it corresponding duty not 
 to allow obstruction to become unnecessarily dangerous, or to remain unreasonable 
 length of time; Blessington v. Boston, 153 Mass. 413, 26 N. E. 1113, holding city 
 intrusting to street railway employees duty of guarding sewer trench in highway, 
 responsible for their neglect, whether momentary or otherwise; Ainsworth v. 
 
4 L.R.A. 213] L. R. A. CASES AS AUTHORITIES. 650 
 
 Lakin, 180 Mass. 400, 57 L. R. A. 132, 91 Am. St. Rep. 314, 62 N. E. 746, holding 
 owner of premises destroyed by lire bound to see proper care taken to prevent 
 damage from fall of wall; Kaiser v. Detroit & X. W. R. Co. 131 Mich. 507, 91 
 N. W. 752, holding authority to construct railroad in street no defense to action 
 for injuries caused by creation of nuisance therein ; Kenyon v. Chicago City R. 
 Co. 235 111. 410, 85 N. E. 660, holding that one who puts obstruction in street 
 without properly guarding it, cannot avoid liability for injury therefrom by- 
 showing duty of a third person to guard, remove or maintain such obstruction 
 safe condition; Flynn v. Butler, 189 Mass. 388, 75 X. E. 730, holding that a per- 
 son maintaining a powder magazine is bound under all circumstances to so handle 
 the powder as not to jeopardize persons or property in its vicinity. 
 Crossing: street at point other than crossing. 
 
 Cited in Slee v. Lawrence. 162 Mass. 408, 38 N. E. 708, holding question 
 whether pedestrian was negligent in leaving sidewalk because of crowd, and 
 crossing street at point other than crossing, is for jury. 
 
 Cited in footnotes to Suburban Electric Co. v. Xugent, 32 L.R.A. 700. which 
 holds person using street has right to presume that it is free from dangerous 
 obstacles; Wheat v. St. Louis, 64 L.R.A. 292, which holds that one attempting 
 to turn horse and milk wagon around in vicinity of manhole which he knows 
 projects above the surface of the street, guilty of contributory negligence. 
 Recovery for death on circumstantial evidence. 
 
 Cited in note (2 L.R.A. (N.S.) 907) on recovery for death on circumstantial 
 evidence. 
 
 4 L. R. A. 215, LINCOLN v. PERRY, 149 Mass. 368, 21 N. E. 671. 
 Descent of mixed funds. 
 
 Cited in Lawrence v. Crane, 158 Mass. 393, 33 N. E. 605, and Heard v. Read, 
 169 Mass. 225, 47 N. E. 778, holding that trust fund of personal and real estate 
 goes to persons who would inherit realty by law; Eastham v. Barrett, 152 Mass. 
 58, 25 X'. E. 33, holding inheritable estate in land given tt statutory heir, de- 
 scends like real property; Gray v. Whittemore. 192 Mass. 380, 10 L.R.A. (N.S.) 
 1150, 116 Am. St. Rep. 246, 78 N. E. 422, holding trust fund of personal and 
 real estate devised to heirs of life tenant to the income, goes in whole to those 
 technically described as heirs unless indication of intention that two kinds of 
 property should go in different directions. 
 Law by which "heirs" are determined. 
 
 Cited in Codman v. Krell, 152 Mass. 218, 25 N. E. 90, requiring term "heirs 
 at law" in deed of trust to be determined by law of donor's domicil where it 
 was evidently in mind; Keith v. Eaton, 58 Kan. 736, 51 Pac. 271, holding will 
 to be interpreted in light of law of domicil, unless contrary shown from tes- 
 tator's circumstances or from whole instrument; Adams v. Adams, 154 Mass. 
 202, 13 L. R. A. 280, 28 N. E. 260, raising, without deciding, question whether 
 ''children" in will means legitimate children if illegitimate children are recog- 
 nized as children for some purposes at domicil; Re Riesenberg, 116 Mo. App. 
 315, 90 S. W. 1170, holding law of domicile of testator at execution of will con- 
 trol as to who are heirs of devisee to take in case of devisee's death prior to tes- 
 tator; Brandeis v. Atkins, 204 Mass. 475, 26 L.R.A. (N.S.) 231, 90 N. E. 861, 
 on the determination of the heirs at law by law of domicile of testator. 
 
 Cited in notes (2 L.R.A. (N.S.) 448) on conflict of laws as to wills: (2 Brit. 
 Rul. Cas. 557) on law governing ascertainment of members of class taking under 
 will. 
 
651 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 218 
 
 Statutory heir. 
 
 Cited in Motherway v. \VaIl, KiS Mass. 337, 47 N. E. 135, holding realty of 
 less than $5,000 devised to others without husband's written consent descends 
 to husband as statutory heir of wife dying without issue; Howe v. Berry, 168 
 Mass 419, 47 N. E. 104, holding Mass. Pub. Stat. chap. 124, 1, giving husband 
 fee in wife's realty deceased without issue living, applies where they had no 
 children; Gluey v. Levering, 167 Mass. 448, 45 N. E. 766, holding devise to 
 ''heirs at law," of specih'ed person, includes widow as statutory heir to extent of 
 $5,000 only; Re Smith, 150 Mass. 411, 31 N. E. 387, holding surviving husband 
 entitled to $5,000 only in which he is given an estate in fee by statute under pro- 
 vision in trust deed to convey to "heirs at law" of his deceased wife such shares 
 as they would have taken if she had died intestate; International Trust Co. v. 
 Williams, 183 Mass. 173, 66 X. E. 798, holding heirs of life tenant under statute 
 to have been her husband and child; Proctor v. Clark, 154 Mass. 48, 12 L. R. A. 
 724, 27 N. E. 673, holding widow "heir at law" within meaning of third person's 
 will, to extent of $5,000 in which she is given estate in fee, by statute, but not as 
 to property in which she is given only life estate. 
 "Heirs" and "issue." 
 
 Cited in Blodgett v. Stowell, 389 Mass. 143, 75 N. E. 138, holding under a 
 statute that an adopted child may not take under the will of adopted parent's 
 father as "heir or issue" where such child was adopted and adopting parent 
 died after enactment of statute the heirs of adopting parent are ascertainable 
 as of the date of his death; Holmes v. Holmes, 198 Mass. 557, 80 N. E. 614, hold- 
 ing that a trust fund devised after a limitation to the legal heirs of the life 
 Ijeneficiary surviving, goes to those who would inherit realty of survivor if he 
 had died intestate determined as of date of his death; Boston Safe Deposit & 
 T. Co. v. Blanchard, ]96 Mass. 41, 81 N. E. 654, holding in a devise to heirs in 
 default of certain descendants the property goes to those who would have been 
 testators own right heirs had lie died intestate if his wife had predeceased and he 
 liad died at the instant his wife in fact died; Walton v. Draper, 206 Mass. 23, 91 
 X. E. 884, holding that evidence of conversations with testatrix, either before 
 or after the will was executed, is inadmissible when language of will is un- 
 ambiguous. 
 Extrinsic evidence of testator's intent. 
 
 Cited in Best v. Berry, 189 Mass. 512, 109 Am. St. Rep. 651, 75 N. E. 743, 
 holding inadmissible, memorandum by testator disposing of property; Polsey 
 v. Newton, 199 Mass. 455, 85 N. E. 574, 15 A. & E. Ann. Gas. 139, denying 
 petition to change will from "their three children" to "my three grand children" 
 on a showing that testator had intended scrivener to so make the will; Sibley 
 v. Maxwell, 203 Mass. 105, 89 X. E. 232, holding a letter not referred to in will 
 nor executed as a will nor forming part thereof is inadmissible to change or 
 vary disposition of property under the will admitted to probate. 
 
 4 L. R. A. 218, TYLER v. SAXBORN, 128 111. 136, 15 Am: St. ep. 97, 21 N. E. 
 
 193. 
 Trustee's relation to trust property. 
 
 Cited in Lagger v. Mutual Union Loan & Bldg. Asso. 146 111. 296, 33 N. E. 
 946, holding administratrix cannot indirectly sell property of estate to herself; 
 ,T. W. Butler Paper Co. v. Robbins. 151 111. 625, 38 X. E. 153, holding that presi- 
 dent of corporation cannot under power to borrow money for it properly act as 
 agent for his wife in lending it; Ualbraith v. Tracy, 153 111. 63, 28 L. R. A. 139, 
 46 Am. St. Rep. 867, 38 N. E. 937. holding administrator cannot become purchaser 
 on foreclosure of trust property; Hannah v. People, 198 111. 89, 64 N. E. 776, 
 
4 L.R.A. 218] L. E. A. CASES AS AUTHORITIES. 652 
 
 holding public warehousemen must not be disqualified by private interest; Jef- 
 frey v. J. W. Butler Paper Co. 37 111. App. 101, holding officers of corporation 
 may not deal with themselves or with their near relatives or agents of the cor- 
 poration; Anderson v. First Nat. Bank, 5 N. D. 83, 64 N. W. 114, holding agent 
 authorized to sell at certain price cannot sell to himself; Ferguson v. Bateman, 1 
 App. D. C. 292, holding trustee by answer cannot shift burden from himself 
 of showing individual sale to cestui que trust was without deception; Taylor v. 
 Klein, 47 App. Div. 347, 62 N. Y. Supp. 4, holding title of committee by purchase 
 through wife at fair value at judicial sale of lunatic's property, not marketable; 
 Strauss v. Benheim, 28 Misc. 660, 661, 59 N. Y. Supp. 1054, upholding title in 
 sale of infant's property by special guardian to wife confirmed by court, in 
 attack by third party after twenty-six years; Frazier v. Jeakins, 64 Kan. 631, 
 57 L. R. A. 577, 68 Pac. 24, holding sale of minor's property by guardian to her 
 husband voidable by minor; Frazier v. Jeakins, 64 Kan. 618, 57 L. R. A. 577, 
 footnote p. 575, 68 Pac. 24, holding guardian's sale to her husband void; Borst 
 v. Lynch, 133 Iowa, 569, 110 N. W. 1031, holding that in a speculative sale of 
 trust property the trustee shall account to owner for full amount received in- 
 cluding profits though trustee agreed to give one-half thereof to another, and 
 the face value of security for purchase price did not cover profit; Curry v. King, 
 6 Cal. App. 576, 92 Pac. 662, holding that sale will be set aside where it was 
 procured by agent for sale of the property so that he might obtain it from 
 purchaser for himself and relatives; Hayes v. Hall, 188 Mass. 513, 74 X. E. 935; 
 on sale by trustee to his wife; Atkins v. Atkins, 195 Mass. 129, 11 L.R.A. (X.S.) 
 276, 122 Am. St. Rep. 221, 80 N. E. 806, holding that the fact that husband was 
 acting in a representative capacity in sale of realty to wife does not in a suit 
 thereon bring the case within the equitable exception to the common-law rule 
 that such a contract is a nullity; Fiske v. Waite, 53 Or. 149, 99 Pac. 283, 
 holding that agent of broker for sale of realty cannot himself purchase the 
 realty and turn it over to another for advanced price without full disclosure to 
 owner; Wells v. Cochran, 84 Neb. 281, 120 N. W. 1123, holding burden on 
 agent to show knowledge of facts and consent of principal in his retention and 
 right to profits from subject of agency; Blair v. Johnson, 215 111. 559, 74 X. E. 
 747, holding that wife of life tenant acquires no title by purchase of property 
 at tax sale; Fox v. Simons, 251 111. 321, 96 X. E. 233, holding that agent em- 
 ployed to secure oil leases cannot secure any for himself, without his employ- 
 er's consent. 
 
 Cited in footnotes to Jansen v. Williams, 20 L. R. A. 207, which denies 
 agent's right to become purchaser without principal's acquiescence; Boswell v. 
 Cunningham, 21 L. R. A. 54, which denies agent's right to acquire adverse interest 
 in subject-matter of agency; Kimball v. Ranney, 46 L. R. A. 403, which denies 
 right of agent employed to sell mortgaged property for owner to purchase at 
 sale; Strong v. Brennan, 47 L. R. A. 792, which denies right of attorney to re- 
 cover for services to association employing him when also engaged and paid by 
 adverse party; Holmes v. Cathcart, 60 L. R. A. 734, which requires agent, 
 authorized to make sale or exchange at specified terms, to disclose to principal 
 facts as to more advantageous jane learned of; Trice v. Comstock, 61 L. R. A. 
 176, which denies right of one employed to conduct probable customers to prin- 
 cipals engaged in reselling at advances options procured from owners, to pur- 
 chase for own benefit adversely to principals even after agency terminates; 
 Van Dusen v. Bigelow, 67 L.R.A. 288, which holds that agent for collecting 
 rent, paying tax, seeing to repairs and giving advice as to value of farm lands, 
 cannot purchase for himself without full disclosure of all facts bearing on the 
 value of the land; State v. Edwards, 69 L.R.A. 667, which denies right of com- 
 
653 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 229 
 
 mission merchants to whom grain is consigned for sale on commissions to pur- 
 chase themselves after business hours at highest price of the day on the board of 
 trade. 
 
 Cited in notes (5 L. R. A. 166, 9 L. R. A. 792) on general rule as to trustee 
 purchasing at his own sale; (6 L. R. A. 370) on rule as to persons acting in 
 fiduciary capacity purchasing trust property; (8 L. R. A. 486) on what is 
 necessary to bind surety on bond; (10 L. R. A. 101) on rule as to person in 
 trust relation obtaining adverse title to trust property; (12 L. R. A. 396) on 
 rule as to agent acting in double capacity; (13 L. R. A. 490, 492) on confidential 
 relation between parties; (22 Am. St. Rep. 250) on validity of agent's acts for 
 his own benefit; (80 Am. St. Rep. 559, 565) on purchase by agent of principal's, 
 property. 
 
 4 L. R. A. 222, THOMAS v. BURNETT, 128 111. 37, 21 N. E. 352. 
 Actual or constructive notice of facts affecting; title to land. 
 
 Cited in Sternbach v. Leopold, 50 111. App. 499, holding lien of creditor's mort- 
 gage procured by debtor's voluntary act not prior to that of earlier unrecorded 
 mortgage; Helm v. Kaddatz, 107 111. App. 417, and Adam v. Tolman, 180 111. 64 r 
 54 N. E. 174, Affirming 77 111. App. 182, holding recorded mortgage on property 
 by one in possession without apparent title sufficient to warn purchaser; Ray v. 
 Keith, 218 111. 186, 75 N. E. 921, holding perfection of attachment levied with- 
 out notice, by judgment execution sale and deed will ripen into a legal estate 
 superior to rights under a prior unrecorded deed. 
 
 Cited in footnotes to Brinser v. Anderson, 6 L. R. A. 205, which holds pur- 
 chaser required to inquire into rights of possessor though he knows of lease to 
 him; Rock Island & P. R. Co. v. Dimick, 19 L. R. A. 105, which holds open and 
 exclusive possession of passageway through railroad embankment notice of 
 rights to purchaser of railroad; Gibson v. Thomas, 70 L.R.A. 768, which holds 
 unrecorded release of portion of property covered by mortgage by holder to mort- 
 gagor not binding on subsequent assignee of mortgage without notice. 
 
 Cited in notes (8 L.R.A. 211) on constructive notice to title to land by pos- 
 session; (11 Eng. Rul. Gas. 548; 13 L.R.A. (N.S.) 84) on possession of land as 
 notice of title. 
 
 4 L. R. A. 224, SHINN v. SHINN, 42 Kan. 1, 21 Pac. 813. 
 Tenancy by the entirety. 
 
 Cited in Wilson v. Johnson. 4 Kan. App. 751, 46 Pac. 833, and Simons v. 
 McLain, 51 Kan. 160, 32 Pac. 919, holding estates by joint tenancy existed in. 
 Kansas prior to March 10, 1891; Branch v. Polk, 61 Ark. 394, 30 L. R. A. 329 
 54 Am. St. Rep. 266, 33 S. W. 424, holding wife and husband must join in deed 
 to whole estate to convey full estate by entirety; Holmes v. Holmes, 70 Kan 
 892, 79 Pac. 163, holding that the statute abolishing survivorship estates ity 
 entirety as recognized at the common law did" not effect the rights of a survivor 
 to an estate vested prior to its enactment. 
 Wife's property. 
 
 Cited in State v. Shaw, 79 Kan. 398, 21 L.R.A.(N.S.) 29, 131 Am. St. Re r . 
 298. 100 Pac. 78, holding that a house conveyed by husband to wife is a hoi^e 
 held by "one other than" the husband under the statute on arson. 
 
 4 L. R. A. 229, OWEN v. ROBERTS, 81 Me. 439, 17 Atl. 403. 
 Effect of insolvency act on attachment. 
 
 Cited in Peabody v. Stetson. 88 Me. 279. 34 Atl. 74, holding attachment /-rior 
 to insolvency act not dissolved by provisions of that act. 
 
 
4 L.E.A. 231J L. R. A. CASES AS AUTHORITIES. 654 
 
 4 L. R. A. 231, PADDOCK v. ATCH1SON, T. & S. F. R. CO. 37 Fed. 841. 
 Ejection of or refusal to take pSissenjfer. 
 
 Cited in Zion v. Southern P. Co. 67 Fed. 503, holding compensatory damages 
 recoverable for insult, abuse, and undue violence in expelling passenger; Owens 
 v. Macon & B. R. Co. 119 Ga. 233, 63 L.R.A. 948, 46 S. E. 87, denying liability of 
 carrier for refusal to transport insane person who was boisterous and using ob- 
 scene language; Owens v. Macon & B. R. Co. 119 Ga. 233, 63 L.R.A. 946, 46 S. E. 
 87, holding carrier entitled to reasonable notice to prepare for transportation of a 
 lunatic; Calhoun v. Pullman Co. 16 L.R.A. (N.S.) 577, 86 C. C. A. 387, 159 Fed. 
 389, holding sleeping car company not liable for manner in which carrier per- 
 forms its contract of carriage though a passenger has a special contract for berth 
 with such sleeping car company; Connors v. Cunard S. S. Co. 204 Mass. 315, 26 
 L.R.A. (N.S.) 176, 134 Am. St. Rep. 662, 90 N. E. 601, 17 A. & E. Ann. Gas. 1051, 
 on the limitations to the general rule that a common carrier is obliged to carry 
 any one presenting himself with the price of carriage. 
 
 Cited in notes (11 L. R. A. 432) on ejection of passengers; (31 L. R. A. 263) 
 on duty of carriers as to passengers taken ill during journey; (26 Am. St. Rep. 
 335) on liability of sleeping car company for ejection of passenger; (35 L. ed. 
 U. S. 923 ) on duty of railroad to accept all passengers. 
 Passenger affected with communicable disease. 
 
 Cited in Pullman Car Co. v. Krauss, 145 Ala. 400, 4 L.R.A. (N.S.) 105, 40 So. 
 398, 8 A. & E. Ann. Cas. 218, holding sleeping car company justified in rescind- 
 ing a contract to furnish berth on grounds that holder of ticker has loathsome 
 contagious disease. 
 Inability of railroad for acts of employee of sleeping; car company. 
 
 Cited in note (23 L.R.A. (N.S.) 1059) on liability of railroad for acts of em- 
 ployee of sleeping or Pullman car company toward passengers. 
 
 4 L. R. A. 232, ANVIL M1N. CO. v. SHERMAN, 74 Wis. 226, 42 N. \V. 226. 
 Liability of subscriber to stock of corporation. 
 
 Cited in Wechselberg v. Flour City Nat. Bank, 26 L. R. A. 475, 12 C. C. A. 
 61, 24 U. S. App. 308, 64 Fed. 95, holding previous to paying in requisite statu- 
 tory percentage of value of stock, subscribers liable for debts made in name of 
 corporation. 
 
 Cited in notes (45 L.R.A. 647) on assessments on paid-up stock; (93 Am. St. 
 Rep. 370, 373, 379) on liability to corporations of subscribers to stock. 
 
 Distinguished in Port Edwards, C. & N. R. Co. v. Arpin, 80 Wis. 217, 49 N. 
 W. 828, holding railroad company may assess without regard to aggregate stock 
 subscription or payments; Milwaukee Brick & Cement Co. v. Schoknecht, 108 
 Wis. 464, 84 N. W. 838, holding duly organized corporation may recover balance 
 of unpaid subscription; La Crosse Brown Harvester Co. v. Goddard, 114 Wis. 
 612, 91 N. W. 225, sustaining allegation of payment in money and property of 
 requisite statutory precentage of stock value. 
 
 4 L. R. A. 236, Re REINITZ, 39 Fed. 204. 
 
 Immunity from arrest after extradition for different crime. 
 
 Cited in Re Baruch, 41 Fed. 472, holding prisoner brought from one state to 
 another on foreign extradition and discharged has reasonable time to return 
 Ibefore arrest on civil process; Ex parte Browne, 148 Fed. 70, holding person 
 extradited from Canada on a specific charge not subject to commitment for a 
 proceeding had prior to and distinct from charge on which he was extradited. 
 
 Cited in footnotes to King v. McLean Asylum, 26 L R. A. 784, which sustains 
 Federal jurisdiction of habeas corpus case between citizens of different states 
 
655 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 241 
 
 involving right to liberty from restraint as insane person; Murray v. Wilcox, 
 64 L. R. A. 5:34, which holds defendant in criminal case coining into state to 
 attend trial exempt from service of civil process. 
 
 4 L. R. A. 239, WATK1NDS v. SOUTHERN P. CO. 14 Sawy. 30, 38 Fed. 711. 
 Pleading- defense of contributory negligence. 
 
 C'ited in Berry v. Lake Erie & W. R. Co. 70 Fed. 194, denying necessity of 
 pleading or proving freedom from contributory negligence; New Castle Bridge 
 Co. v. Doty, 37 Ind. App. 88, 76 N. E. 557, holding contributory negligence to be 
 an affirmative defense and must be proven by fair preponderance of evidence to 
 defeat action for negligence with burden on defendant; Berry v. Lake Erie & W. 
 R. Co. 70 Fed. 194, holding contributory negligence matter of defense to be 
 averred and proved by defendant and plaintiff need not aver freedom therefrom.' 
 
 Cited in notes (7 L.R.A. 819) on negligence and contributory negligence on 
 street railroad; (33 L.R.A. (N.S.) 1201, 1209) on pleading defense of contribu- 
 tory negl igence. 
 Reply. 
 
 Cited in Seffert v. Northern P. R. Co. 49 Or. 96, 88 Pac. 962, 13 A. & E. Ann. 
 Cas. 883, holding that a denial in a reply of each and every allegation in the 
 answer contained except such facts in the complaint as are confessed and avoided, 
 is not a nullity and if merely defective must be questioned or objection is waived; 
 Coney Island Co. v. Denman, 79 C. C. A. 375, 149 Fed. 693, on defense of con- 
 tributory negligence as precluding denial of negligence in the answer. 
 Allegation of matter of defense in complaint. 
 
 Cited in Peters v. Hanger, 67 C. C. A. 386, 134 Fed. 590, holding that where 
 an allegation in complaint is a matter of defense plaintiff need not prove it 
 where such matter is immaterial. 
 
 4 L. R. A. 241, CARPENTER v. GREENOP, 74 Mich. 664, 16 Am. St. Rep. 662, 
 
 42 N. W. 276. 
 
 Report of second appeal in 84 Mich. 49, 47 N. W. 509. 
 Dealings of partners bet-ween themselves as individuals. 
 
 Cited in Jennings v. Pratt, 19 Utah, 137, 56 Pac. 951, and Campbell v. Bane, 
 119 Mich. 42, 77 N. W. 323, holding suit at law maintainable to enforce contract 
 made between partners as individuals; Halleck v. Streeter, 52 Neb. 829, 73 N. W. 
 219, holding partner may sue co-partner at law on cause of action not connected 
 with partnership; Re Telfer, 106 C. C. A. 366, 184 Fed. 226, holding that judi- 
 cial recognition of partnership entity does not change rule fixing substantive 
 rights of creditors respectively of firm and of partners; Kalamazoo Trust Co. 
 v. Merrill, 159 Mich. 654, 124 N. W. 597, holding a copartnership bank holding 
 notes against debtors some of whom are members of bank cannot sue on such 
 notes. 
 
 Cited in footnote to Hopkins v. Adey, 50 L. R. A. 498, which holds unenforce- 
 able, note by one partner and comaker to other partner though money used in 
 paying firm obligations. 
 
 Cited in notes (46 L. R. A. 772) on rights of stockholder of negotiable paper 
 transferred after maturity as to partnership paper; (11 L. R. A. 238) on com- 
 mercial paper executed by nontrading partner. 
 
 Distinguished in Clinton Loan Asso. v. Terrell, 114 N. C. 303, 19 S. E. 240, 
 holding statute of limitations does not begin to run, on indorsement by partner 
 of third person's note to firm, until settlement of firm's affairs. 
 
4 L.R.A. 241] L. R. A. CASES AS AUTHORITIES. 658 
 
 Title of transferee of overdue note. 
 
 Cited in note (4 Eng. Rul. Gas. 398) on title of transferee of overdue note or 
 bill. 
 
 4 L. R. A. 244, LOUISVILLE, E. & ST. L. R. CO. v. WILSON, 119 Ind. 352, 21 
 N. E. 341. 
 
 Judgment upon new trial on amended complaint, Affirmed in 132 Ind. 510, 
 18 L. R. A. 106, 32 N. E. 311. 
 Parol agreement as to written contract. 
 
 Cited in Stewart v. Cleveland, C. C. & St. L. R. Co. 21 Ind. App. 224, 52 N. E. 
 89, holding oral negotiations merged in written contract made substantially at 
 time of shipment; Providence Washington Ins. Co. v. Board of Education, 49 
 W. Va. 377, 38 S. E. 679, holding parol proof of contemporaneous waiver of con- 
 dition in insurance policy, inadmissible; Indianapolis, D. & W. R. Co. v. For- 
 sythe, 4 Ind. App. 327, 29 N. E. 1138, holding complaint upon carrier's implied 
 contract and proof of bill of lading exempting from liability charged, at fatal 
 variance; Cleveland, C. C. & St. L. R. Co. v. Moline Plow Co. 13 Ind. App. 234, 
 41 N. E. 480, holding agency of consignee in bill of lading subject to parol proof; 
 Pennsylvania Co. v. Clark, 2 Ind. App. 152, 27 N. E. 586, holding failure to ship 
 cattle on particular train no breach of written contract silent as to time or train 
 of shipment or delivery; Getting v. Kansas City Stock Yards Co. 183 U. S. 98, 
 46 L. ed. 104, 22 Sup. Ct. Rep. 30, holding equal protection denied by law regu- 
 lating charges of stock-yard companies and inapplicable to other like concerns. 
 
 Cited in note (6 L. R. A. 39) on written contracts as evidence. 
 Bills of lading. 
 
 Cited in Chicago, I. & L. R. Co. v. Hostetter, 171 Ind. 478, 84 N. E. 534. 
 holding that where bill of lading of live stock is silent on care of stock in transit 
 the duty devolves on the carrier by implication of the common law; Portland 
 Flouring Mills Co. v. British & F. M. Ins. Co. 65 C. C. A. 344, 130 Fed. 863. 
 holding evidence of custom of doing business between parties to bill of lading 
 not admissible to vary contract contained in the bill which is plain and unam- 
 biguous; Central R. & Bkg. Co. v. Hasselkus, 91 Ga. 387, 44 Am. St. Rep. 37, 
 17 S. E. 838, holding inadmissible, parol evidence as to time of delivery, not 
 mentioned in bill of lading. 
 
 Cited in notes (10 L. R. A. 416, 9 L. R. A. 264) on bills of lading. 
 
 Distinguished in Cleveland, C. C. & St. L. R. Co. v. Tyler, 9 Ind. App. 690. 
 35 N. E. 523, holding baggage check but prima facie evidence of carrier's con- 
 tract. 
 Custom us evidence to prove carrier's rates. 
 
 Cited in Halliday Mill Co. v. Louisiana & M. W. R. Co. 80 Ark. 540, 98 S. 
 W. 374, holding expert testimony admissible to show reasonable rate for ship- 
 ment of goods, the witness having special knowledge of rates under similar con- 
 ditions though he had no knowledge of cost of transportation or financial con- 
 dition on the road in question. 
 
 4 L. R. A. 247, BELL v. PELT, 51 Ark. 433, 14 Am. St. Rep. 57, 11 S. W. 684. 
 Equitable 1 i-n>. 
 
 Cited in Williams v. Cunningham, 52 Ark. 442, 12 S. W. 1072, holding equitable 
 lien on crop to be grown created by instrument expressing such intention ; Martin 
 v. Schichtl, 60 Ark. 599, 31 S. W. 458, holding misnomer of lien does not defeat 
 intention of parties; Whitely v. Central Trust Co. 34 L. R. A. 307, 22 C. C. A. 
 74, 43 U. S. App. 643, 76 Fed. 80, holding judgment for breach of vendee's cove- 
 nants in deed not equitable lien on land; Ward v. Stark, 91 Ark. 273, 121 S. 
 
657 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 252 
 
 W. 382, holding a duly executed instrument reciting that the agreement therein 
 shall be a lien on property described until payment of purchase price of im- 
 provements thereon is an equitable lien or mortgage; Cox v. Smith, 93 Ark. 
 375, 137 Am. St. Rep. 89, 125 S. \V. 437, holding that vendor has lien for amount 
 unpaid, where vendee agrees to pay part of price by building partition wall, or in 
 default thereof, cash, and he does not build wall; Denison & N. R. Co. v. Raney- 
 Alton Mercantile Co. 3 Ind. Terr. 156, 53 S. W. 496, holding that where supplies 
 are furnished constructive camps on promise that indebtedness for same shall be 
 lien on railroad, by railroad company through orders of court, such indebtedness 
 shall be an equitable lien on property for company, though orders of court 
 were without jurisdiction; Garrison v. Vermont Mills, 154 X. C. 7, 31 L.R.A. 
 (N.S.) 453, 69 S. E. 743, holding that contract between manufacturer and sales 
 agent that agent will make advances on goods on hand in storehouse of manu- 
 facturer, gives agent equitable lien; Harrigan v. Gilchrist, 121 Wis. 360, 361, 99 
 N. W. 909, holding an attempt to make a mortgage sufficient being done to enable 
 a court of equity to ascertain with certainty the purpose of the parties, the 
 property involved and the terms of the contract is a good equitable mortgage. 
 Cited in note (32 Am. St. Rep. 656) on what constitutes a mortgage. 
 
 4 L. R. A. 251, ROBINSON v. GERMAN INS. CO. 51 Ark. 441, 11 S. W. 686. 
 Insurance premium notes. 
 
 Cited in German American Ins. Co. v. Divilbiss, 67 Mo. App. 503, and Phenix 
 Ins. Co. v. Rollins, 44 Neb. 750, 63 N. W. 46, holding clause in policy providing 
 for suspension for nonpayment of premium does not prevent recovery on note; 
 Economic Life Asso. v. Spinney, 116 Iowa, 387, 89 N. W. 1095, holding insurer 
 entitled to recover amount due on premium note after forfeiture of policy for 
 nonpayment. 
 Insurance policy, parol evidence to vary. 
 
 Cited in Germania Ins. Co. v. Bromwell, 62 Ark. 47, 34 S. W. 83, holding parol 
 evidence inadmissible to contradict insurance policy. 
 
 Cited in note (20 Am. St. Rep. 826) on parol evidence to contradict insurance 
 policy. 
 
 Authority of foreign corporations to tlo business not disputable on ap- 
 peal. 
 
 Cited in St. Louis, A. & T. R. Co. v. Fire Asso. of Philadelphia, 55 Ark. 174, 
 18 S. W. 43, holding foreign corporation's compliance with statutory requirements 
 cannot be questioned first on appeal. 
 
 4 L. R. A. 252, FT. SMITH v. DODSON, 51 Ark. 447, 14 Am. St. Rep. 62, 11 S. W. 
 
 687. 
 Estray proceedings; strict compliance -with statute necessary. 
 
 Cited in McCrossin v. Davis, 100 Ala. 633, 13 So. 607, holding one claiming 
 under estray proceedings must show strict compliance with statute. 
 
 Cited in note (90 Am. St. Rep. 217, 219) on summary proceedings to impound 
 and sell animals. 
 Liability of city. 
 
 Cited in Gregg T. Hatcher, 94 Ark. 57, 27 L.R.A. (N.S.) 140, 125 S. W. 1007 ; 
 21 Ann. Cas. 982, holding city not liable for an unlawful impounding under an 
 ordinance authorized by legislature. 
 
 Cited in note (27 L.R.A. (N.S.) 139) on municipal liability for impounding 
 animals. 
 . Constitutionality of statutes. 
 
 Cited in footnotes to Greer v. Downey, 61 L. R. A. 408, which holds void stat- 
 L.R.A. Au. Vol. I. 42. 
 
4 L.R.A. 2.V2] L. R. A. CASES AS AUTHORITIES. 653 
 
 ute authorizing without judicial proceeding sale at auction of trespassing ani- 
 mals after specified notice; Burdett v. Allen. 14 L. R. A. 337. which holds sum- 
 mary proceedings for impounding animals at large unconstitutional. 
 Deprivation of property -without cine process. 
 
 Cited in Clapp v. Houg, 12 N. D. 608, 65 L.R.A. 761, 102 Am. St. Rep. 589, 
 9S X. \V. 710, holding a statute providing for special administration of the prop- 
 erty of a person thought to be dead, void as a taking of property without due 
 process of law. 
 
 4 L. R. A. 255, POPE v. POLLOCK, 46 Ohio St. 367, 15 Am. St. Rep. 608, 21 
 
 N. E. 356. 
 Malicious civil prosecution, when action maintainable. 
 
 Cited in Antcliff v. June, 81 Mich. 490, 10 L. R. A. 626, 21 Am. St. Rep. 533, 
 45 N. W. 1019; Metcalf v. Bockoven, 62' Neb. 884, 87 N. W. 1055; McCormick 
 Harvesting Mach. Co. v. Willan, 63 Neb. 393, 56 L. R. A. 340, 93 Am. St. Rep. 
 449 88 N. W. 497; Kolka v. Jones, 6 N. D. 465, 66 Am. St. Rep. 615, 71 N. W. 
 558, holding action maintainable for malicious prosecution of civil suit without 
 probable cause, though no interference with person or property ; McPhcrson v. 
 Runyon, 41 Minn. 525, 16 Am. St. Rep. 727, 43 N. W. 392, holding action main- 
 tainable for malicious prosecution of replevin proceedings; Cooper v. Armour, 
 8 L. R. A. 48, 42 Fed. 217, holding one accused before magistrate of criminal 
 offense, but not arrested, cannot maintain action; Whitesell v. Study, 37 Ind. 
 App. 432, 76 N. E. 1010. holding that the action may be maintained where the 
 malicious suit was commenced by summons only, process of attachment not being 
 essential; Laver v. Canfield, 7 Ohio C. C. N. S. 395, 28 Ohio C. C. 435, holding 
 that action will lie for, maliciously and without probable cause, prosecuting 
 action in forcible entry and unlawful detainer; Wilson v. Whitacre, 4 Ohio C. 
 C. 21, 2 Ohio C. D. 396, on same point. 
 
 Cited in footnotes to Zinn v. Rice, 12 L. R. A. 288, which holds action for ex- 
 cessive attachment of goods maintainable before termination of suit ; Sneeden 
 v. Harriss, 14 L. R. A. 389, which authorizes action for malicious abuse of civil 
 process to accomplish collateral purpose; McCormick Harvesting Mach. Co. v. 
 Willan, 56 L. R. A. 338,, which authorizes suit for malicious prosecution of 
 civil action without restraint of person or seizure of property; Abbott v. 
 Thorne, 65 L.R.A. 826, which denies right of action for malicious prosecution of 
 civil action in whi?h there was no arrest or attachment of property and no 
 special injuries inflicted. 
 
 Cited in notes (13 L. R. A. 60) on general rules as to malicious prosecution; 
 (10 L. R. A. 622) on, when action for malicious prosecution maintainable; 
 {13 L.R.A. 464) en what must be shown in action for malicious prosecution; 
 (93 Am. St. Rep. 457, 467) on liability for malicious prosecution of civil action. 
 
 Distinguished in Cincinnati Daih- Tribune Co. v. Bruck, 61 Ohio St. 491, 76 
 Am. St. Rep. 433, 56 N. E. 198, holding suit not maintainable for malicious 
 prosecution, without probable cause, of action for dissolution of corporation. 
 Malice anil want of probable cause essential. 
 
 Cited in Mitchell v. Silver Lake Lodge, 29 Or. 301, 45 Pac. 798, holding malice 
 and want of probable cause must be alleged in action for wrongful attachment 
 not brought on bond; Waring v. Fletcher, 152 Ind. 629, 52 X. E. 203. holding in 
 action for suing out attachment in excess of debt, malice and want of probable 
 cause must be proved. 
 
 Cited in footnote to Le Clear v. Perkins, 26 L. R. A. 627, which holds advice 
 of counsel admissible as defense to malicious prosecution of civil suit. 
 
659 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 261 
 
 Cited in note (12 L. R. A. 760) on defense of reasonable and probable cause in 
 notion for malicious prosecution. 
 
 What In term i nation of prosecution. 
 
 Cited in Southern Car & Foundry Co. v. Adams, 131 Ala. 156, 32 So. 503, 
 holding dismissal of charge without trial such termination as will sustain action. 
 Cited in footnotes to Craig v. Ginn, c3 L. R. A. 713, which holds discharge of 
 prosecution by agreement on defendant's paying half amount claimed to have 
 been obtained by false pretenses, not termination supporting action for malicious 
 prosecution; Luby v. Bennett, 56 L. R. A. 261, which holds suit for malicious 
 prosecution maintainable if material issues of prosecution decided in defendant's 
 favor before suit commenced. 
 
 Damages. 
 
 Cited in footnote to Stoecker v. Xathanson, 70 L.R.A. 667, which holds loss 
 of employment because of false imprisonment element of damages where offer of 
 employment was withdrawn because thereof, though contract had not actually 
 been completed. * 
 Attorneys' fees as costs. 
 
 Cited in Watson v. Watson, 21 Ohio C. C. 251, .11 Ohio C. D. 464, holding 
 attorneys' fees not included in "costs" in action for dower. 
 
 4 L. R. A. 261, USHER v. WEST JERSEY R. CO. 126 Pa. 206, 12 Am. St. Rep. 
 
 863, 17 Atl. 597. 
 Statutory eanse of action for deatb. 
 
 Cited in Major v. Burlington, C. R. & X. R. Co. 115 Iowa, 314, 88 X. W. 815, 
 "holding action not maintainable by widow for damages resulting to her individu- 
 ally for wrongfully killing of husband; Fisher v. Lehigh & X. E. R. Co. 12 Xorth. 
 Co. Rep. 396, 20 Pa. Dist. R. 446, holding that widow will not be required to 
 elect between action in state court under state statute and action in Federal 
 vcourt under Federal statute. 
 
 Cited in notes (5 L. R. A. 174, 7 L. R. A. 154) on action for damages for 
 death caused by negligence; (70- Am. St. Rep. 670, 673) on actions for death 
 of human being. 
 Enforcement in other state. 
 
 Cited in Xelson v. Chesapeake & 0. R. Co. 88 Va. 977, 15 L. R. A. 587, 14 
 "S. E. 838, holding statutory cause of action for death enforceable in another 
 state when not inconsistent with laws or policy; Hanna v. Grand Trunk R. Co. 
 41 111. App. 130, holding action maintainable for causing death in another state, 
 though statutes differ as to nominal plaintiff and limit of recovery; Kiefer v. 
 Grand Trunk R. Co. 12 App. Div. 32, 42 X. Y. Supp. 171, holding interest on 
 damages not allowable in action for death when not given where injury occurred; 
 Boulden v. Pennsylvania R. Co. 205 Pa. 269, 54 Atl. 906, holding action for 
 death arising in Xew Jersey maintainable in Pennsylvania by Xew Jersey admin- 
 istrator without ancillary administration: McGinnis v. Missouri Car & Foundry 
 Co. 174 Mo. 231, 97 Am. St. Rep. 553, 73 S. W. 586, holding void statute au- 
 thorizing action by person appointed by court, for negligent killing of person in 
 other state whose statute requires such action to be brought by administrator; 
 Fabel v. Cleveland, C. C. & St. L. R. Co. 30 Ind. App. 272, 65 X. E. 929, denying 
 right of father in individual capacity to maintain action in Indiana for negli- 
 gent killing of son in Ohio; Thorpe v. Union P. Coal Co. 24 Utah. 481, 68 Pac. 
 145, holding that action in Utah for negligent killing of person in Wyoming must 
 be brought in name of personal representative of deceased: Stewart v. Great 
 Northern R. Co. 103 Minn. 157, 123 Am. St. Rep. 318, 114 X. W. 953, holding that 
 
4 L.R.A. 201] L. R. A. CASES AS AUTHORITIES. 660 
 
 plaintiff must plead a statute of the state where killing occurred creating the- 
 liability, and also his personal right to maintain the action; Connor v. New 
 York, N. H. & H. R. Co. 28 R. I. 562, 18 L.R.A. (N.S.) 1256, 68 Atl. 481, 13 A.. 
 & E. Ann. Cas. 1033, holding that where cause of action arose in Connecticut, un- 
 der statute providing for suit by administrator appointed in that state, he 
 may maintain action in Rhode Island where statute provides, that administrator 
 whether appointed within or without state may bring action. 
 
 Cited in notes (10 L. R. A. 767) on recognition of foreign laws; (6 L. R. A, 
 110) on law of comity in enforcement of rights; (56 L. R. A. 197, 210, 211, 213) 
 on conflict of laws as to action for death or bodily injury; (14 Am. St. Rep. 
 355) on action to enforce cause of action created by statute of another state. 
 
 Rig-ht of action, in whom. 
 
 Approved in Wooden v. Western N. Y. & P. R. Co. 126 N. Y. 16, 13 L. R. A. 
 461, 22 Am. St. Rep. 803, 26 N. E. 1050, and Stone v. Groton Bridge & Mfg. Co. 
 77 Hun, 102, 28 N. Y. Supp. 446, holding that only person designated as plaintiff 
 in statute giving cause of action can maintain action in another state; Derr v. 
 Lehigh Valley R. Co. 158 Pa. 370, 33 W. N. C. 295, 38 Am. St. Rep. 848, 27 Atl. 
 1002, denying right to maintain action in one state for death therein of person 
 injured in other state unless negligence proximately causing injury occurred in 
 former state; Hoodmacher v. Lehigh Valley R. Co. 218 Pa. 22, 66 Atl. 975, 
 holding that the right of action arose in Pennsylvania, where negligent cause 
 originated in that state continued into New Jersey where injuries were inflicted' 
 and death occurred in former state. 
 
 Cited in Fithian v. St. Louis & S. F. R. Co. 188 Fed. 844, holding that action 
 under employer's liability act can be brought only in name of person to whom 
 right is given by act; Salmon v. Rathjens, 152 Cal. 294, 92 Pac. 733, holding 
 the right of action for death by negligence being statutory must be brought by 
 or in the names of persons, entitled to the right of action by the statute; Harsh- 
 man v. Northern P. R. Co. 14 N. D. 72, 103 N. W. 412, holding where the right 
 of action is given to particular persons it cannot be brought by sole beneficiary 
 he not being one of the persons specified in statute; La Bar v. New York, S. & 
 W. R. Co. 218 Pa. 263, 67 Atl. 413, holding that the action must be in the names, 
 of the persons to whom the right is given by statute of state in which injuries 
 were inflicted and the death occurred; Kober's Estate, 17 Pa. Dist. R. 185, hold- 
 ing where right of action is, by statute of place where injury was inflicted, in; 
 the personal representative, the decedent being an intestate it is necessary that 
 letters of administration be granted; Jack v. Pennsylvania R. Co. 43 Pa. Super. 
 Ct. 342, holding that widow who has recovered damages for death of husband 
 cannot sue in another state upon his relief fund claim, where recovery of dam- 
 ages bars injury benefits. 
 
 Cited in footnote to O'Reilly v. New York & N. E. R. Co. 6 L. R. A. 719, which 
 authorizes suit by personal representatives for death by negligent act of carrier 
 in other state. 
 
 Cited in note (17 L. R. A. 77) on action by parent for death of child. 
 Corporations ; service of process. 
 
 Distinguished in Phillips v. Burlington Library Co. 141 Pa. 466, 28 W. N. C.. 
 22, 23 Am. St. Rep. 304, 21 Atl. 640, holding jurisdiction of cause of action- 
 arising elsewhere not acquired by serving within state officer of foreign corpora- 
 tion not doing business therein. 
 
 \ i-ivl iji;'ii'> action Damages. 
 
 Cited in footnote to Illinois C. R. Co. v. Slater, 6 L. R. A. 418, which authorizes 
 allowance to infant for loss by injury, of earnings during minority. 
 
661 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. i!68 
 
 Admission of deceilent us evidence. 
 
 Cited in footnote to Georgia R. & Bkg. Co. v. Fitzgerald, 49 L. R. A. i75, which 
 holds evidence of admission by person injured that injury was due to accident 
 admissible against his widow. 
 Comity between gtates. 
 
 Cited in Doubt v. Pittsburg & L. E. R. Co. 19 Pa. Co. Ct. 184, 6 Pa. Dist. R. 
 242, 27 Pittsb. L. J. N. S. 272, declining to aid one in obtaining depositions who 
 unnecessarily went to another state to bring action; Keep v. National Tube Co. 
 154 Fed. 123, holding that a difference in the lex loci and the lex fori as to 
 amount of damages recoverable, limitation of time to bring action, and provision 
 for deduction from amount recovered, for funeral expense, does not warrant 
 refusal of comity. 
 
 4 L. R. A. 265, FRANKE v. PADUCAH WATER SUPPLY CO. 88 Ky. 467, 11 
 
 S. W. 432, 718. 
 Delegation of municipal powers. 
 
 Cited in Arnold v. Pawtucket, 21 R. I. 19, 41 Atl. 576, holding power con- 
 ferred on district to regulate use of water and fix price cannot be delegated; Til- 
 ford v. Belknap, 126 Ky. 249, 11 L.R.A.(N.S.) 709, 103 S. W. 289, holding 
 municipal ordinance requiring consent of owners of buildings within certain 
 radius of proposed building, necessary to permit construction of such building 
 a delegation to private citizens of a governmental power. 
 
 Cited in note (20 L. R. A. 725) on delegation of municipal power as to license. 
 Municipal water anpply. 
 
 Cited in note (61 L. R. A. 106) on establishment and regulation of municipal 
 water supply. 
 
 Distinguished in Pocatello Water Co. v. Standley, 7 Idaho, 161, 61 Pac. 518, 
 upholding right of water company to enjoin plumber from tapping its mains. 
 Validity of plumber's license act. 
 
 Cited in note (5 L.R.A. (N.S.) 675) on constitutionality of statute requiring 
 plumbers to be licensed. 
 
 4 L. R. A. 268, KING v. BATES, 149 Mass. 73, 21 N. E. 237. 
 Guaranty. 
 
 Cited in footnote to Staver & Walker v. Locke, 17 L. R. A. 652, which hold.i 
 payment of notes taken by agent for goods sold not covered by guaranty of fuil 
 performance of agent's engagements. 
 
 Cited in notes (4 L. R. A. 343, 8 L. R. A. 381) on rule of construction of 
 guaranty; (21 L.R.A. (N.S.) 154) on maturity of obligation as terminating 
 liability of guarantor of interest. 
 
 Distinguished in Bousquet v. Ward, 116 Iowa, 130, 89 N. W. 196, holding 
 guarantors not liable for interest accruing after maturity of bonds; Merritt v. 
 Haas. 106 Minn. 280, 21 L.R.A. (N.S.) 156, 119 N. W. 247, holding that contract 
 of guaranty includes payment of interest till date of maturity where agreement 
 is to pay interest until note is "paid in full." 
 Notice of default. 
 
 Cited in Welch v. Walsh, 177 Mass. 560, 52 L. R. A. 784, 83 Am. St. Rep. 302, 
 59 N. E. 440, holding guarantor of lease not entitled to notice of default in 
 paying rent. 
 
 Cited in footnote to Nading v. McGregor, 6 L. R. A. 686, which holds notice 
 unnecessary to one agreeing "guarantee to pay for" any timber of certain class. 
 
4 L.R.A. 268] L. R. A. CASES AS AUTHORITIES. 662 
 
 Promissory notes? Interest. 
 
 Cited in Kendall v. Equitable Life Assur. Soc. 171 Mass. 574, 51 X. E. 464, 
 holding rate of interest after maturity stipulated in note continues until payment 
 or judgment. 
 
 4 L. R. A. 272, PROPRIETORS OF MILLS v. BRAIXTREE WATER SUPPLY 
 
 CO. 149 Mass. 478, 21 N. E. 761. 
 Private rights in public -waters. 
 
 Cited in Proprietors of Mills v. Randolph, 157 Mass. 349, 32 X. E. 153, holding 
 mill owners entitled to damages for taking waters of public pond for public 
 use only where statute authorizes compensation. 
 
 Cited in footnotes to Auburn v. Union Water-Power Co. 38 L. R. A. 188, which 
 holds taking one-fifteenth water supply of great pond for city not unreasonable 
 as to owners of mill privileges; Watuppa Reservoir Co. v. Fall River, 13 L. R. A. 
 255, which holds right of private persons in great ponds not affected by ordinance 
 of 1647; Atty. Gen. ex rel. Mann v. Revere Copper Co. 9 L. R. A. 510, which 
 holds private rights in great ponds acquirable by prescription; Concord Mfg. Co. 
 v. Robertson, 18 L. R. A. 679, as to abutter's rights in public water and land 
 under same. 
 
 Cited in notes (8 L.R.A. 578) on property in unnavigable lakes; (7 Eng. RuT. 
 Cas. 485) on injunction against pollution and diversion of stream. 
 
 Distinguished in Proprietors of Mills v. Com. 164 Mass. 232, 41 X. E. 280, 
 holding corporation not exercising right to erect dam and lower outlet of great 
 pond not entitled to damages for taking adjoining lands for public park. 
 Percolating waters; right to. 
 
 Cited in Hollingsworth & V. Co. v. Foxborough Water Supply Dist. 165 Mass. 
 188, 42 N. E. 574, holding one not entitled to draw water from pond directly, 
 cannot by percolation; Forbell v. Xew York, 47 App. Div. 376. 61 X. Y. Supp. 
 1005, holding city cannot drain percolating water from land to which it has 
 no title. 
 
 Cited in note (19 L. R. A. 98) on rights in subterranean waters. 
 "Spring" defined. 
 
 Cited in Gring v. Sinking Spring Water Co. 7 Pa. Super. Ct. 67, defining- 
 "spring" as water at point of issue from earth ; not including water course there- 
 from. 
 Collateral liability for taking for pnblic use. 
 
 Cited in Emerson v. Somerville, 166 Mass. 117, 44 X. E. 110, raising without 
 deciding question whether city purchasing land for park is collaterally liable to. 
 owner of buildings thereon. 
 Proper parties complainant in bill in eqnity. 
 
 Cited in Lonsdale Co. v. Woonsocket, 21 R. I. 500, 44 Atl. 929. holding mill 
 owners having common interest in preventing diversion of water may join in bill. 
 Concurrent jurisdiction of law and eqnity. 
 
 Cited in Kewanee v. Otley, 204 111. 411, 68 X. E. 388, holding recovery of 
 judgment at law for damages not a bar to later action for injunction against 
 continuing nuisance. 
 
 Cited in note (10 Eng. Rul. Cas. 314) on remedy of owner of easement by 
 action at law and by injunction. 
 
 4 L. R. A. 275, KYLE v. TEXAS & X. O. R. CO. (Tex. App.) report. 
 Eminent domain, when right exists. 
 
 Cited in Chattanooga Terminal R. Co. v. Felton, 69 Fed. 279, holding land 
 
663 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 280 
 
 may not be condemned for spur switch to private factory; Riley V. Louisville, 
 H. & St. L. R. Co. 142 Ky. 69, 35 L.R.A.(N.S-) 638, 133 S. W. 971, holding that 
 railroad spur to factory is for public use, if intention is to extend it further 
 when business justifies it. 
 
 Cited in notes (20 L. R. A. 4.38) on power to condemn right of way for railroad 
 sidings to private establishment: (4 L.R.A. 792) on right of eminent domain: (22 
 L.R.A.(X.S-) 3) on judicial power over eminent domain. 
 
 Disapproved in Ulmer v. Lime Rock R. Co. 98 Me. 590, 57 Atl. 1001, upholding 
 right of railroad company to condemn right of way for branch track to lime 
 quarry; Zircle v. Southern R. Co. 102 Va. 22, 102 Am. St. Rep. 805, 45 S. E. 
 802, upholding right to condemn property for right of way to private mills. 
 Kiulit of way. 
 
 Cited in footnote to Herrman v. Roberts, 7 L. R. A. 226, which holds grantee 
 of right of way entitled to rights incident to enjoyment of right of passage. 
 License to use property. 
 
 Cited in footnote to Pierce v. Cleland, 7 L. R. A. 752, which holds license to use 
 property irrevocable after money expended. 
 
 Cited in notes (10 L. R. A. 487) on effect of executed license; (6 L. R. A. 
 160) on easement and license distinguished. 
 
 4 L. R. A. 280, MISSOURI P. R. CO. v. RICHMOND, 73 Tex. 568, 15 Am. St 
 
 Rep. 794, 11 S. W. 555. * 
 
 Liability of corporation for libel. 
 
 Cited in Belo v. Fuller, 84 Tex. 452, 31 Am. St. Rep. 75, 19 S. W. 616, holding 
 corporation civilly liable for libel: Hypes v. Southern R. Co. 82 S. C. 318, 21 
 L.R.A. (N.S.) 874. 64 S. E. 395, 17 A. & E. Ann. Cas. 620, holding railroad com- 
 pany liable for slander of engineer by division superintendent made within scope 
 of his authority and in discharge of his duties, though the company had no 
 knowledge or gave no consent. 
 
 Cited in notes (115 Am. St. Rep. 725, 726) on corporate liability for libel 
 and slander; (16 Eng. Rul. Cas. 756) on liability of corporation for malicious 
 prosecution. 
 What onatitntes libel. 
 
 Cited in Nettles v. Somervell, 6 Tex. Civ. App. 631, 25 S. W. 658, holding 
 publication of person as unworthy of trust or credit, libelous; St. James Mili- 
 tary Academy v. Gaiser, 125 Mo. 525, 28 L. R. A. 674, 46 Am. St. Rep. 502, 28 
 S. W. 851, holding charge that school teaching and permitting dancing harmful 
 to community's moral and religious interests, libelous per se; Mayo v. Goldman, 
 57 Tex. Civ. App. 477, 122 S. W. 449, holding it slanderous per se to impute to 
 clerk that he has been bribed to betray confidence of employer. 
 
 Cited in footnotes to Moore v. Manufacturers Xat. Bank, 11 L. R. A. 753, which 
 holds reference in statement to sureties of cashier to items drawn by "collusion 
 with teller" libelous as to teller: Woodruff v. Bradstreet Co. 5 L. R. A. 555, 
 which holds publication that judgment recovered against merchant or trader 
 libelous. 
 
 Cited in notes (9 L.R.A. 621) on libel and slander; (4 L.R.A. (N.S.) 1122) 
 on liability growing out of giving or refusing information affecting character or 
 reputation of servant; (17 Eng. Rul. Cas. 252) on right of servant as to tes- 
 timonial as to character after termination of relation. 
 Privileged fomniunicationg. 
 
 Cited in Schulze v. Jalonick, 18 Tex. Civ. App. 308, 44 S. W. 580, holding 
 ixmimunication to agents of insurance company of matter for their guidance, 
 
4 L.R.A. 280] L. E. A. CASES AS AUTHORITIES. 664 
 
 privileged; Rude v. Nass, 79 Wis. 328, 24 Am. St. Rep. 717, 48 N. W. 555, holding 
 reply to letter written by third person at request of person interested, privileged; 
 Younians v. Smith, 153 N. Y. 220, 47 N. E. 265, holding list of questions to be 
 asked, submitted to witnesses by attorney, privileged. 
 
 Cited in footnotes to Conroy v. Pittsburgh Times, 11 L. R. A. 725, which holds 
 privileged communication one properly made on proper occasion from proper 
 motive on probable cause; Fresh v. Cutter, 10 L. R. A. 67, which holds voluntary 
 communication in good faith to neighbor about to employ servant that he had 
 stolen, privileged; Brown v. Norfolk & W. R. Co. 60 L. R. A. 472, which holds 
 privileged, publication as to reason for employee's discharge; Hemmens v. Nelson, 
 20 L. R. A. 440, which holds statement by principal of deaf mute institute to 
 executive committee as to improper acts of department superintendent privileged; 
 Nissen v. Cramer, 6 L. R. A. 780, which holds releVant words spoken by party to 
 action during trial privileged; Rothholz v. Dunkle, 13 L. R. A. 655, which holds 
 communication by bank cashier to stockholder as to solvency of surety on bond 
 to bank, privileged; Sullivan v. Strahorn-Hutton-Evans Commission Co. 47 L. R. 
 A. 859, which holds imputation of evil motives as dishonesty in letter complaining 
 of nonpayment of debt by third person through bank, not privileged. 
 
 Cited in notes (104 Am. St. Rep. 112, 150) on what libelous statements are 
 privileged; (9 Eng. Rul. Cas. 81, 82) as to what communications enjoy a quali- 
 fied privilege. 
 Necessity of proving? mallcje. 
 
 Cited in Missouri P. R. Co. v. Behee, 2 Tex. Civ. App. 109, 21 S. W. 384, 
 holding railroad list of employees discharged for cause privileged; malice essen- 
 tial to recovery for false statement; Hebner v. Great Northern R. Co. 78 Minn. 
 292, 79 Am. St. Rep. 387, 80 N. W. 1128, holding damages not recoverable for 
 privileged communication without proving actual malice; Vial v. Larson, 132 
 Iowa, 210, 109 N. W. 1007, holding that where defendant honestly believed 
 derogatory statements made, to be true, burden is on plaintiff to show malice. 
 
 Cited in footnote to Nichols v. Eaton. 47 L. R. A. 483, which holds communi- 
 cation by a principal to agent as to business of agency not actionable unless 
 actuated by malice. 
 Plea of privilege, what provable under. 
 
 Cited in Cranfill v. Hayden, 22 Tex. Civ. App. 667, 55 S. W. 805, holding proof 
 of truth of alleged libel admissible under plea of privilege. 
 Corporation's liability tor malice. 
 
 Cited in Emerson, T. & Co. v. Skidmore, 7 Tex. Civ. App. 646, 25 S. W. 671, 
 holding corporation liable for exemplary damages for malice of agent represent- 
 ing it in attachment proceeding. 
 
 Cited in notes (10 L. R. A. 129) on corporations as persons; (63 L. R. A. 
 290, 292, 293 ) on blacklisting employees. 
 Security for costs. 
 
 Cited in Bearup v. Coffey, 9 N. M. 502, 55 Pac. 289, holding affidavit of 
 financial disability takes place of cost-bond; Posey v. Aiken, 17 Tex. Civ. App. 
 45, 42 S. W. 368, holding tender of cost-bond after motion made, but before 
 dismissal, sufficient. 
 Exemplary damagres. 
 
 Cited in notes (28 Am. St. Rep. 881; 8 Eng. Rul. Cas. 378) on right to puni- 
 tive damages; (59 Am. St. Rep. 590, 594) on exemplary damages against cor- 
 porations. 
 
665 ' L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 287 
 
 4 L. R. A. 284, ATCHISON, T. & S. F. R. CO. v. MORGAN, 42 Kan. 23, 16 Am. 
 
 St. Rep. 471, 21 Pac. 809. 
 Fixtures, what constitute. 
 
 Cited in Button v. Ensley, 21 Ind. App. 49, 69 Am. St. Rep. 340, 51 N. E. 380, 
 holding house on blocks, built as permanent improvement, fixture ; McFarlane v. 
 Foley, 27 Ind. App. 486, 87 Am. St. Rep. 264, 60 N. E. 357, holding chandeliers 
 put up as permanent improvement, fixtures; \Yinslow v. Bromich, 54 Kan. 305, 
 45 Am. St. Rep. 285, 38 Pac. 275, holding wagons used to convey syrup from 
 place to place in sugar factor}', not fixtures; Traders Bank v. First Nat. Bank, 
 C Kan. App. 400, 50 Pac. 1098, holding whether store furnishings fixtures, ques- 
 tion of fact; Marshall v. Bacheldor, 47 Kan. 445, 28 Pac. 168, holding character 
 of property treated in' contract as personalty not affected by subsequent annexa- 
 tion; Skinner v. Ft. Wayne, T. H. & S. W. R. Co. 99 Fed. 468, holding railroad 
 tracks remain personalty after extinguishment of easement by foreclosure of 
 prior mortgage; St. Louis, K. & S. W. R. Co. v. Nyce, 61 Kan. 404, 48 L. R. A. 
 247, 59 Pac. 1040, holding railroad tracks, bridges, and station not fixtures 
 passing under foreclosure of prior mortgage; Gartland v. Hickman, 56 W. Va. 
 85. 67 L.R.A. 700, 49 S. E. 14, holding engines, tanks and pipes put on premises 
 by lessees of oil rights not to pass to lessor on termination of lease for non- 
 payment of rental ; Hereford v. Pusch, 8 Ariz. 84, 68 Pac. 547, holding that a 
 fence placed on government land by mistake passes to one subsequently acquiring 
 deed from government; Gasaway v. Thomas, 56 Wash. 80, 105 Pac. 168, on the 
 difficult application of the rule of fixtures to any given circumstances. 
 
 Cited in footnotes to Murray v. Bender, 63 L.R.A. 783, which holds chairs, 
 stage fixtures, and drop curtains annexed to theater to make possible the use of 
 the building, fixtures; Giddings v. Freedley, 65 L.R.A. 327, which holds main 
 belt transmitting power from an engine so annexed to building as to be real 
 estate, to machinery in mill, real estate. 
 
 Cited in notes (4 L. R. A. 674, 5 L. R. A. 150, 6 L. R. A. 249, 10 L. R. A. 723) 
 on \\lmt are fixtures; (66 L.R.A. 42) on nature of railroad as realty or person- 
 alty. 
 
 ])i-iinguished in Fernie v. Chicago, R. I. & P. R. Co. 9 Kan. App. 616, 58 Pac. 
 492. holding rails, ties, etc., forming railway line, fixtures. 
 Improvements made on land of another. 
 
 Cited in note (16 L. R. A. 807) on value of improvements made by one taking 
 property by eminent domain as element of damages. 
 
 4 L. R. A. 287, MELOY v. CHICAGO & N. W. R. CO. 77 Iowa, 743,' 14 Am. St. 
 
 Pvep. 325, 42 X. W. 563. 
 Duty of railroad to employees as respects track and roadhed. 
 
 Cited in Gordon v. Chicago, R. I. & P. R. Co. 129 Iowa, 755, 106 N. W. 177, 
 holding that under the duty to supply safe road and track the jury may inquire 
 into the construction of the road though questions of engineering are involved; 
 Haas v. St. Louis & Suburban R. Co. Ill Mo. App. 713, 90 S. W. 1155, holding 
 workman employed on tracks not a fellow servant with motorman on same road. 
 
 Cited in footnote to Smith v. Erie R. Co. 59 L. R. A. 302, which holds company 
 bound, as to employees riding on trains, to exercise reasonable care to maintain 
 safe track and roadbed. 
 
 Cited in notes (31 L.R.A. 323) on railroad employees or officers as pas- 
 sengers; (16 Am. St. Rep. 883) on duty of railroad to employees as to track. 
 
 Distinguished in Carlson v. Oregon Short Line & U. N. R. Co. 21 Or. 454. 28- 
 Pac. 497, holding employee engaged in repairing track known to be dilapidated, 
 assumes risks incident to such condition. 
 
4 L.R.A. 287] L. 11. A. CASES AS AUTHORITIES. G6G 
 
 Cited in footnote to Florida C. & P. R. Co. v. Sullivan, 61 L. R. A. 410, which 
 denies negligence of white passenger in riding in car set apart for negroes. 
 ^es'liifeiice; unlawful speed of triit as. 
 
 Cited in Grand Trunk R. Co. v. Ives, 144 U. S. 418, 36 L. ed. 489, 12 Sup. Ct. 
 Rep. 679, holding running trains at greater speed than allowed by ordinance 
 circumstance from which negligence inferable; Chicago & X. W. R. Co. v. O'Brien, 
 82 C. C. A. 461, 153 Fed. 514, holding company liable for death caused by 
 running of train at excessive rate of speed around a curve and down a steep 
 grade. 
 Evidence of otlier accidents. 
 
 Cited in footnote to Bemis v. Temple, 26 L. R. A. 254, which upholds right to 
 show effect on different horses of suspended flag. 
 Relation of servant off duty. 
 
 Cited in note {12 L.R.A. (X.S.) 856) on existence of relationship where servant 
 goes on master's premises at other than hours of actual labor. 
 -Contributory nejflis'ence of railroad employees. 
 
 Cited in footnote to Milbourne v. Arnold Electric P. Station Co. 70 L.R.A. 
 600, which holds railroad employee not negligent per se in taking exposed posi- 
 tion on flat car unless risk of injury is so great that no person of ordinary 
 prudence would assume it. 
 .Assumption of risk. 
 
 Cited in Martin v. DOS Moines Edison Light Co. 131 Iowa, 733, 106 X. W. 359. 
 ^holding that servant in making dangerous repairs does not assume risks arising 
 :from negligence of master unless shown to him or possible of discovery by use 
 of due diligence; Kinsel v. Xorth Butte Min. Co. 44 Mont. 466, 120 Pac. 797, 
 holding that miner timbering mine does not assume risk of injury from collapse 
 <due to negligent placing of timbers during his absence. 
 
 Cited in note (19 L.R.A. (X.S.) 346) on servant's assumption of risk from 
 ^changing condition of working place during progress of work. 
 
 -4 L. R. A. 291, STATE v. POWELL, 103 X. C. 424, 14 Am. St. Rep. 821, 9 S. E. 
 627. 
 
 Followed without special discussion in State v. Hill, 114 N. C. 782, 18 S. E. 
 971. 
 Felonious intent; secrecy not necessary element. 
 
 Cited in State v. Coy, 119 N. C. 903, 26 S. E. 120, holding felonious intent in 
 -open taking question for jury: State v. Bradburn. 104 X. C. 882, 10 S. E. .1 :>'>. 
 holding secrecy of robbery not indispensable element of felonious intent; State 
 v. Foy, 131 N. C. 805, 42 S. E. 934, holding that one cannot be convicted of lar- 
 ceny when taking not inconsistent with honest intent; Long v. State. 44 Fla. 
 140, 32 So. 870, 14 Am. Crim. Rep. 453, on submission of question of felonious 
 intent to the jury on the evidence of a taking without claim of right with 
 intent to deprive owner of possession, such taking being open with no intent 
 to conceal. 
 
 Cited in footnote to State v. Xelson, 68 L.R.A. 283, which holds that felon- 
 iously breaking and entering livery stable where one's horse is kept for purpose 
 of removing it and depriving stable keeper of lien for food and care may be 
 burglary. 
 
 Cited in notes (52 L.R.A. 139) on larceny of money or property delivered by 
 mistake; (21 L.R.A. (X.S.) 312) as to whether indictment involving felonious 
 taking may lay ownership in one in possession as agent, bailee, etc. 
 
667 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 296 
 
 4 L. R. A. 294, MOORE v. BARRY, 30 S. C. 530, 9 S. E. 589. 
 Delegation of legislative powers. 
 
 Cited in footnote to State ex rel. Baltzell v. Stewart, 6 L. R. A. 394, which 
 holds grant to drainage commissioners of power to determine what land bene- 
 fited, not unlawful delegation of power. 
 Taxation. 
 
 Cited in notes (8 L. R. A. 369) on constitutional restriction as to valuation, 
 equality, and uniformity in taxation; (60 L. R. A. 239) on procedure for the 
 establishment of drains and sewers; (133 Am. St. Rep. 939) as to whether a 
 personal liability may be created for an assessment. 
 
 4 L. R. A. 296, FORDYCE v. McCAXTS, 51 Ark. 509, 14 Am. St. Rep. 69, 11 S. 
 
 W. 694. 
 
 Second appeal, 55 Ark. 385, 18 S. W. 371. 
 Damagea for death caused by negligence. 
 
 Cited in Fordyce v. McCants, 55 Ark. 385, 18 S. W. 371, holding on second 
 appeal father entitled to recover for death of adult son amount equivalent to 
 son's usual contribution to support during father's expectancy; Smith v. Chicago, 
 M. & St. P. R. Co. 6 S. D. 591, 28 L. R. A. 576, 62 N. W. 967, holding only nom- 
 inal damages recoverable for death of adult son, without proof of pecuniary loss; 
 St. Louis, I. M. & S. R. Co. v. Xeedham, 3 C. C. A. 148, 10 U. S. App. 339, 52 
 Fed. 379, holding only actual pecuniary damages recoverable by widow in action 
 for husband's death; St. Louis, M. & S. E. R. Co. v. Garner, 76 Ark. 557, 89 
 S. W. 550, holding father cannot recover for wrongful death of adult son in 
 the absence of a showing that son was of financial or substantial assistance to 
 him or that he had reasonable expectation of pecuniary benefit from continued 
 life of son; Jacksonville Electric Co. v. Bowden, 54 Fla. 475, 15 L.R.A. (N.S.) 
 457, 45 So. 755 (dissenting opinion) on the measure of damages recoverable 
 for wrongful death; Huff v. Peoria & E. R. Co. 127 111. App. 250, holding evi- 
 dence of an agreement on part of deceased to reimburse father for expense of 
 education by assisting in education of sisters admissible to show actual damage 
 to father; Young v. Beveridge. 81 Xeb. 182, 115 X. W. 766, holding measure of 
 recovery to be present value of husband's support during joint expectancy of life 
 of deceased and wife and minority of child; Missouri, K. & T. R. Co. v. Foreman, 
 98 C. C. A. 281, 174 Fed. 380, holding under statute that mother of deceased is a 
 necessary party plaintiff though she may not have sustained any pecuniary losa 
 by reason of the death. 
 
 Cited in notes (17 L.R.A. 73) on construction of state statutes giving cause of 
 action for negligently causing death; (8 Eng. Rul. Cas. 426) on measure of 
 damages for death of relative. 
 
 Distinguished in Warren & 0. Valley R. Co. v. Waldrop, 93 Ark. 139, 123 S. 
 \V. 702. holding that instruction that damages should be amount deceased would 
 contribute to wife is not erroneous because not stating during her life. 
 !{< ui--t:i . su IIX.CM tii-ii i declarations. 
 
 Cited in Xational Masonic Acci. Asso. v. Shryock, 20 C. C. A. 8, 36 U. S. App. 
 <558, 73 Fed. 778. holding declarations as to accident, two hours after, not part 
 of res gestce; Fidelity & C. Co. v. Haines, 49 C. C. A. 382, 111 Fed. 340, holding 
 declaration of agent day after making insurance contract, not part of 'res gestce. 
 
 Cited in note (16 Am. St. Rep. 407) on what constitutes res gestae. 
 General law superseding prior special legislation. 
 
 Cited in Davis v. St. Louis, I. M. & S. R. Co. 53 Ark. 125, 7 L. R. A. 284, 13 
 S. \V. 801, holding general act regarding suits for wrongfully causing death 
 supersedes act relating to killing persons by trains. 
 
4 L.R.A. 298] L. R. A. CASES AS AUTHORITIES. 66* 
 
 4 L. R A. 298, STATE v. CHICAGO, M. & ST. P. R. CO. 77 Iowa, 442, 42 N. W, 
 
 365. 
 Effect of proof of similar crimes, where Indictment Is for one act. 
 
 Cited in Palin v. State, 38 Neb. 866, 57 N. W. 743, holding proof of similar 
 distinct offenses entitles accused to require prosecutor to elect upon which he 
 relies for conviction. 
 Obstructing- hinliwnjx; plea of necessity. 
 
 Cited in Chicago & N. W. R. Co. v. Prescott, 23 L. R. A. 658, 8 C. C. A. 113, 
 19 U. S. App. 291, 59 Fed. 242, holding location of depot no justification for ob- 
 struction of highway by trains; Jenks v. Lansing Lumber Co. 97 Iowa, 347, 66"- 
 N. W. 231, holding abutting owner cannot obstruct highway with cars and lum- 
 ber to damage of other owners. 
 
 Cited in notes ( 14 L. R. A. 557, 558) on obstruction of street or sidewalk for 
 business or building purposes; (18 L. R. A. 154) on liability of railroad company 
 for obstructing highway crossing; (6 L. R. A. 161) on mandamus to compel 
 removal of obstructions from highway; (16 Am. St. Rep. 209) on obstruction 
 of street or highway; (34 L. ed. U. S. 355) on occupation of highway by rail- 
 roads. 
 
 4 L. R. A. 300, STATE ex rel. McCARTY v. NELSON, 41 Minn. 25, 42, N. W. 548, 
 Recovery of compulsory payments. 
 
 Cited in Mearkle v. Hennepin County, 44 Minn. 548, 47 N. W. 165, holding 
 payment under protest, required by unconstitutional statute as condition prece- 
 dent to administration, recoverable; Joannin v. Ogilvie, 49 Minn. 567, 16 L. R. 
 A. 378, 32 Am. St. Rep. 581, 52 N. W. 217, holding payment of unfounded 
 mechanic's lien to clear title to obtain urgent loan, recoverable; \Yells v. Adams, 
 88 Mo. App. 226, holding payment of bonus to redeem real property, fraudu- 
 lently exacted, recoverable; First Nat. Bank v. Sargeant. 65 Neb. 605, 59 L. R. 
 A. 300, 91 N. W. 595, holding excess extorted by mortgagor from one desiring 
 to redeem in order to make advantageous sale, recoverable. 
 
 Cited in footnotes to Behring v. Somerville, 49 L. R. A. 578, which denies 
 right of mortgagor, compelled to pay first assignee, to recover amount previously 
 paid second assignee who surrendered mortgage; Langevin v. St. Paul, 15 L. R. 
 A. 766, which holds agent's mistaken belief that all of lots jointly sold for taxes 
 belonged to principal not ground for recovering back any of redemption money; 
 Scott v. Ford, 68 L.R.A. 469, which denies right to recover back money paid by 
 executors under mistaken belief that payee was entitled thereto as represents 
 tive of a deceased legatee. 
 
 Cited in notes (25 Am. St. Rep. 520) as to when payments are voluntary: (04 
 Am. St. Rep. 432) on recovery back of voluntary payment. 
 
 Distinguished in effect in \ ereycken v. Vanden Brooks, 102 Mich. 121, 60 N. 
 W. 687, holding payment, under protest, of more interest than legally demand- 
 able to prevent foreclosure, not recoverable. 
 Illegal taxes. 
 
 Cited in McGee v. Hennepin County, 84 Minn. 473, 88 N. W. 6, holding illegal 
 tax involuntarily paid, recoverable; Scottish Union & Nat. Ins. Co. v. Herriott, 
 109 Iowa, 611, 77 Am. St. Rep. 548, 80 N. W. 665, holding illegal license tax paid 
 in order to continue business, recoverable; Montgomery v. C'owlitz County, 14 
 Wash. 233, 44 Pac. 259, holding illegal tax paid under protest to avoid threatened 
 sale, recoverable; Cook County v. Fairbanks, 222 111. 591, 78 N. E. 895, holding 
 that money paid as fees to the probate clerk under protest may be recovered, 
 where the conditions of the estate demanded immediate action, where the clerk 
 
wy L. K. A. CASES AS AUTHORITIES. [4 L.R.A. 308 
 
 had no authority to demand such fees; Oakland Cemetery Asso. v. Ramsey 
 County, 98 Minn. 400, 116 Am. St. Rep. 377, 108 N. W. 857, holding that one who 
 is compelled to pay taxes illegally demanded, in order to record his deed to the 
 land may pay such taxes under protest and recover them by subsequent action; 
 Hazelton v. McGroarty, 6 Kulp. 538, 2 Pa. Dist. R. 291, holding that a voluntary 
 payment of money under claim of right without fraud and with full knowledge 
 of the facts can not be recovered back, unless there was duress or compulsion, 
 and mere protest will not make it involuntary payment. 
 
 Cited in footnotes to St. Anthony & D. Elevator Co. v. Soucie, 50 L. R. A. 
 262, which sustains right to recover illegal taxes paid under protest to prevent 
 tax collector's sale of personal property constructively seized; Walser v. Board 
 of Education, 31 L. R. A. 329, which denies right to recover back school taxes 
 paid by mistake to district not entitled to same; C. & J. Michel Brewing Co. v. 
 State, 70 L.R.A. 911, which holds that requiring foreign corporation to pay license 
 fee as condition precedent to sale of products within state or subject itself to 
 penalties supposed to be prescribed by statute not such compulsion as will entitle 
 it to recover amounts paid on statute being held unconstitutional. 
 
 Questioned in State ex rel. Baldwin v. Moore. 7 Wash. 175, 34 Pac. 461, hold- 
 ing payment of illegal tax made as choice of evils, voluntary. 
 
 Disapproved in Weston v. Luce County, 102 Mich. 533, 61 N. W. 15, holding 
 illegal tax paid under protest, to effect sale, not recoverable. 
 Necessity of protest. 
 
 Cited in De Graff v. Ramsey County, 46 Minn. 320, 48 N. W. 1135, holding pay- 
 ment made without protest under unconstitutional statute, not recoverable. 
 Mandamus, tvhen issnable. 
 
 Cited in State ex rel. Soucheray v. Krahmer, 92 Minn. 399, 100 N. W. 105, 
 holding that mandamus would not lie to compel a county auditor to certify all 
 taxes paid, upon a deed, where it appears that they have not been, though the 
 title has been registered. 
 
 Cited in footnote to Territorial Insane Asylum v. Wolfley, 8 L. R. A. 188, 
 which denies mandamus to compel governor to sign warrant for funds for asylum. 
 
 Cited in notes ( 19 Am. St. Rep. 95 ) on mandamus to officers. 
 
 Distinguished in Lobban v. State, 9 Wyo. 391, 64 Pac. 82, holding mandamus 
 lies to compel issuance of receipt in full to one paying all legal taxes. 
 
 4 L. R. A. 305, NORTON v. BAXTER, 41 Minn. 146, 16 Am. St. Rep. 679, 42 
 
 N. W. 865. 
 Tender; release of security. 
 
 Cited in Moore v. Norman, 43 Minn. 430, 9 L. R. A. 56, 19 Am. St. Rep. 247, 
 45 N. W. 857, holding tender after maturity extinguishes lien of chattel mort- 
 gage, though not kept good; Hyams v. Bamberger, 10 Utah, 17, 36 Pac. 202, 
 holding tender after maturity, before valid sale of pledged chattels, extinguishes 
 lien; Frenzer v. Richards. 60 Neb. 134, 82 N. W. 317, holding tender of principal 
 of usurious loan releases security; Starke v. Myers, 24 Misc. 580, 53 N. Y. Supp. 
 650, holding tender, not kept good, releases security; Pittsburg Plate Glass Co. 
 v. Leary, 25 S. D. 263, 31 L.R.A. (N.S.) 759, 126 N. W. 271, Ann. Cas. 1912 B, 
 028. holding that tender of amount of claim on which mechanics' lien is filed 
 stops interest and extinguishes lien. 
 
 4 L. R. A. 308, STATE v. MASSE V, 103 N. C. 356, 9 S. E. 632. 
 Statutory construction. 
 
 Cited in Leak v. Gay, 107 N. C. 481, 12 S. E. 312, holding amendatory act 
 subject to existing statutory rule of construction; Randall v. Richmond & D. R. 
 
4 L.R.A. 308] L. R. A. CASES AS AUTHORITIES. 670 
 
 Co. 104 N. C. 414, 10 S. E. 691, holding words of statute not having technical 
 meaning construed according to ordinary import. 
 
 Cited in note (25 L. R. A. 573) as to how far statutes will be regarded as hav- 
 ing abrogated maxim that one cannot profit by his own wrong. 
 Repeal by implication. 
 
 Cited in State v. Biggers, 108 N. C. 764, 12 S. E. 1024, holding statute not im- 
 pliedly repealed by later one, unless irreconcilably inconsistent ; State v. Coley r 
 114 N. C. 883, 19 S. E. 705, holding legislature may, by saving clause, retain pro- 
 visions of existing law as to previous crimes; State v. Perkins, 141 X. C. 798 r 
 9 L.R.A.(N.S.) 167, 53 S. E. 735, holding that where a later statute is clearly in- 
 tended by legislature to be prospective in operation it will not be construed to 
 repeal a prior statute on same subject; State v. Parker, 139 X. C. 587. 51 S. E. 
 1028, holding statute prohibiting sale of "any spirituous vinous malt or other 
 intoxicating liquors or any drink containing alcohol" not repealed by statute 
 prohibiting sale of spirituous vinous or malt liquors or "other intoxicating 
 drinks" and repealing conflicting laws; State v. Cantwell, 142 X. C. 610, 8 
 L.R.A.(X.S.) 505, 55 S. E. 820, 9 A. & E. Ann. Cas. 141 (dissenting opinion), 
 on repeal by implication only in case of irreconcilability. 
 Effect of repeal of criminal statute. 
 
 Cited in State v. Ramsour, 113 N. C. 644, 18 S. E. 707, holding one cannot be 
 punished for violation of law subsequently repealed. 
 
 4 L. R. A. 313, STOKES v: ANDERSON, 118 Ind. 533, 21 N. E. 331. 
 Agreement to pay money to wife, after separation. 
 
 Cited in Henderson v. Henderson, 37 Or. 150, 48 L. R. A. 769, 82 Am. St. Rep. 
 741, 60 Pac. 597, holding contract to pay certain sums to wife, in contemplation 
 of divorce for husband's misconduct, valid. 
 Delivery, what constitutes. 
 
 Cited in Merritt v. Temple, 155 Ind. 500, 58 N. E. 699, holding delivery to 
 third person of mortgage to be delivered to mortgagee, sufficient; Anderson v. 
 Anderson, 126 Ind. 66, 24 N. E. 1036. holding deeds kept in box by grantor not 
 delivered; Osborne v. Eslinger, 155 Ind. 356, 80 Am. St. Rep. 240, 58 X. E. 439, 
 holding delivery of package containing deeds to third person for safe keeping, to 
 be handed to grantor's executor, insufficient; Erickson v. Kelly, 9 N. D. 16, 81 
 N. W. 77, holding delivery of assignment of land contract to attorney for both 
 parties without intention of parting with control, insufficient; Phoenix Ins. Co. 
 v. Overman, 21 Ind. App. 519, 52 X. E. 771, holding chattel mortgage, recorded 
 but never delivered, of which mortgagee had no knowledge, invalid: Godman v. 
 Henby, 37 Ind. App. 4, 76 X. E. 423, holding that there is no delivery of note 
 where maker locked it with the mortgage in a drawer pending consultation with 
 attorney and payee unlocked drawer and took note and recorded mortgage which 
 had been acknowledged by maker before notary. 
 
 Cited in footnotes to Cook v. Patrick, 11 L. R. A. 573, which holds delivery of 
 deed to third person paying for property, sufficient delivery to grantees; Strough 
 v. Wilder, 7 L. R. A. 555, which holds possession prima facie evidence of delivery 
 of deed. 
 
 Cited in notes (13 L.R.A. 677) on essentials to validity of deed; (53 Am. St. 
 Rep. 551) on what is a delivery of a deed. 
 Agreements to obtain divorce. 
 
 Cited in Wilson v. Fahnestock, 44 Ind. App. 43, 86 X. E. 1037, holding void, 
 contract relating to alimony made pending suit for divorce; Barngrover v. Petti- 
 grew, 128 Iowa, 535, 2 L.R.A. (X.S.) 262, 111 Am. St. Rep. 206, 104 N. W. 904, 
 
671 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 321 
 
 holding agreement by husband to pay attorney and detective for obtaining proof 
 of wife's infidelity and procuring a divorce against public policy and void; Shee- 
 han v. Sheehan, 77 X. J. Eq. 414. 140 Am." St. Rep. 566, 77 Atl. 1063, holding 
 void, agreement by husband to make no defense to action for divorce to be 
 brought by wife. 
 
 Cited in note (12 L.R.A. (X.S.) 852) on validity of agreement between hus- 
 band and wife renouncing marital rights. 
 
 4 L. R. A. 321, COLLETT v. VAXDERBURGH COUNTY, 119 Ind. 27, 21 N. E. 
 
 320. 
 Adverse possession. 
 
 Cited in Webb v. Rhodes, 28 Ind. App. 397, 61 X. E. 73r>. holding occupancy 
 of enclosure including disputed strip for twenty years gives title by adverse pos- 
 session; Worthier v. Burbanks, 14(5 Ind. 543, 45 X. E. 779, holding actual occu- 
 pancy not necessary to acquire unproductive lands by adverse possession ; Dyer 
 v. Eldridge, 136 Ind. 657, 36 X. E. 522; Herif v. Griggs, 121 Ind. 475, 23 N. EL 
 279; Bowen v. Swander, 121 Ind. 167, 22 X. E. 725. holding title acquirable by 
 adverse possession without color of title; May v. Dobbins. 166 Ind. 334. 77 X. 
 E. 353, holding color of title not necessary to constitute adverse possession; Hel- 
 ton v. Fastnow, 33 Ind. App. 293, 71 X. E. 230, holding possession of land on 
 defendant's side of dividing fence for upwards of 40 years, such fence for that 
 time being recogni/ed by all parties as dividing line to the undisturbed posses- 
 sion of each to the land on his own side constitutes adverse possession of land in 
 question by defendant: Indianapolis Coal Traction Co. v. Dalton, 43 Ind. App. 
 336. 87 X. E. 552. holding adverse possession of premises under color of title 
 by appellee and grantor for over 20 years passes title though deed was defective 
 in description; Tolley v. Thomas, 46 Ind. App. 565, 93 X. E. 181, holding that 
 answer shows adverse possession, which alleges receipt of sheriff's deed, its record, 
 adverse possession for more than twenty years, payment of taxes, rental, and 
 lack of knowledge of adverse claimants. 
 
 Cited in footnote to Swan v. Munch, 35 L. R. A. 743, which holds title by pre- 
 scription obtainable by wrongful entry under claim of right. 
 
 Cited in notes (6 L. R. A. 833) on adverse possession; (10 L. R. A. 388) on 
 title under adverse possession: (15 L.R.A. (X.S.) 1180, 1189, 1207, 1258) on 
 necessity of color of title, not expressly made a condition by statute, in adverse 
 possession; (14 Am. St. Rep. 130) on what constitutes adverse possession; (76 
 Am. St. Rep. 494; 87 Am. St. Rep. 781) on right to acquire title by adverse 
 possession to lands devoted to public use. 
 Public easement, abandonment of. 
 
 Cited in Freedom v. Xorris, 128 Ind. 383, 27 X. E. 869, holding nonuser of 
 easement of access to river, for thirty years, abandonment; Xeitzel v. Spokane 
 International R. Co. 65 Wash. 109, 36 L.R.A. (X.S.) 527, 117 Pac. 864, holding 
 right of way abandoned where railroad never used land, but leased it to private 
 corporation. 
 Title to caiinl lands. 
 
 Cited in Indianapolis Water Co. v. Kingan, 155 Ind. 481, 58 X. E. 715, and 
 Peoria & E. R. Co. v. Attica, C. & S. R. Co. 154 Ind. 224. .'Hi X. K. 210, holding 
 purchasers of Wabash & Erie canal acquired fee. 
 Prescription. 
 
 Cited in Hall v. Breyfogle, 162 Ind. 500, 70 X. E. 883, holding that title by 
 prescription cannot be obtained to land dedicated to public for use as streets 
 and alleys through negligence of municipal officers in appropriating it to use 
 according to plot: Matthews v. Seaboard Air Line R. Co. 67 S. C. 505, 65 
 
4 L.R.A. 321] L. R. A. CASES AS AUTHORITIES. 672 
 
 L.K.A. 290, 46 S. E. 335, holding that a right of way cannot be procured by 
 prescriptive use by pedestrians over railway right of way, such users being merely 
 licensees. 
 
 Cited in note (61 L. R. A. 877) on construction and operation of roads as to 
 prescription. 
 
 4 L. R. A. 325, CHOPE v. EUREKA, 78 Cal. 588, 12 Am. St. Rep. 113, 21 Pac. 
 
 364. 
 Municipal corporations: liability for acts of officers. 
 
 Cited in Doeg v. Cook, 126 Cal. 216, 77 Am. St. Rep. 171, 58 Pac. 707, holding 
 corporation not liable for misfeasance, malfeasance, or nonfeasance of officers; 
 Arnold v. San Jose, 81 Cal. 619, 22 Pac. 877, holding municipal corporation not 
 liable for negligence of its officers in leaving excavation in street unguarded; 
 Sievers v. San Francisco, 115 Cal. 655, 56 Am. St. Rep. 153, 47 Pac. 687, holding 
 municipal corporation not liable for injury due to increase of street grade by 
 error city engineer; Collier v. Ft. Smith, 73 Ark. 450, 68 L.R.A. 238, 84 S. W. 
 480, holding city not liable for injury from negligence of servants in failing to 
 display danger signals and signs at a place where street being repaired was 
 barricaded; Ukiah City v. Ukiah Water & Improv. Co. 142 Cal. 182, 64 L.R.A. 
 236, 100 Am. St. Rep. 107, 75 Pac. 773, on the rule of nonliability of municipality 
 for negligence of officers and employees; Davoust v. Alameda, 149 Cal. 70, 5 
 L.R.A. (N.S.) 538, 84 Pac. 760, 9 A. & E. Ann. Cas. 847, holding municipal 
 operation of light plant not a governmental function and that liability attaches 
 for injury caused by negligence of employees therein ; Healdsburg Electric Light 
 & P. Co. v. Healdsburg, 5 Cal. App. 561, 90 Pac. 955, holding city not liable 
 for destruction of private property by wrongful act of its agents without the 
 scope of their authority; Schindler v. Young, 13 Cal. App. 21, 108 Pac. 733, on lia- 
 bility of city for damages to one injured in consequence of defective street; Ludlow 
 v. Fargo, 3 N. D. 488, 57 N. W. 506, holding general rule to be that a municipal 
 corporation is bound to use due care in the maintenance of a highway and is 
 under same rule of negligence as private persons with respect to maintenance, 
 free from obstructions, of such highway; Carson v. Genesee, 9 Idaho, 251, 108 
 Am. St. Rep. 127, 74 Pac. 862, holding municipal corporations having statutory 
 control over streets and alleys are liable for injury caused by negligent mainte- 
 nance of such streets; Sels v. Greene, 81 Fed. 556. holding a reclamation dis- 
 trict being a quasi public corporation in California not liable for negligence 
 in performance of its duties, or for a nuisance. 
 
 Cited in footnotes to Burns v. Bradford, 11 L. R. A. 726, which holds city 
 not liable for injury due to slight deviation of sidewalk from original level; 
 Potter v. Jones, 12 L. R. A. 160, which holds city not liable for negligence in 
 blasting for schoolhouse; Curran v. Boston, 8 L. R. A. 243, which holds city not 
 liable for negligence of workhouse officers; Snider v. St. Paul, 18 L. R. A. 151, 
 which holds city not liable for negligence of agents in providing and maintaining 
 city hall; Childrey v. Huntington, 11 L. R. A. 313, which holds city not liable 
 for injury to policeman while struggling with person under arrest by catching 
 foot in hole not dangerous to persons walking; South Bend v. Turner, 54 L. R. 
 A. 396, which holds city liable for child falling into manhole in sewer left un- 
 covered for several weeks near pile of sand played in by children ; Culver v. 
 Streator, 6 L. R. A. 270, which holds city liable for negligence of employee 
 enforcing ordinance against unmuzzled dogs running at large; Shelby v. Clagett, 
 
 5 L. R. A. 606, which holds exhaustion of corporate funds will not relieve from 
 liability for injury by defective sidewalk; Wilson v. Mitchell, 65 L.R.A. 158, 
 which holds that municipality cannot ratify act of waterworks superintendent 
 
673 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 331 
 
 wrongfully connecting well with city water mains so as to become liable for 
 water taken from the well. 
 
 Cited in notes (9 L. R. A. 209, 210) on liability of municipal corporations for 
 acts or omissions of officers or agents; (10 L. R. A. 737) on liability of munici- 
 pal corporation for neglect to keep streets and sidewalks in safe condition; (5 
 L. R. A. 253) on liability of municipal corporations for injuries from defective 
 streets, bridges, etc.; (30 Am. St. Rep. 384) on liability of cities for negligence 
 and other misconduct of officers and agents; (103 Am. St. Rep. 261, 262) on 
 municipal liability to persons injured by defects in, or want of repair of, 
 streets; (108 Am. St. Rep. 151, 152) as to what municipal corporations are 
 answerable for injuries due to defects in streets and other public places; (1 
 Eng. Rul. Cas. 622) on liability of municipalities for injuries from negligent fail- 
 ure to discharge duties. 
 Contributory negligence. 
 
 Cited in note (12 L. R. A. 280) on contributory negligence must be proximate 
 cause of injury to constitute defense. 
 Elements of damage. 
 
 Cited in note (8 L. R. A. 765) on mental anguish as element of damages in 
 case of personal injury. 
 
 4 L. R. A. 328, CUTLER v. AMERICAN EXCH. NAT. BANK, 113 N. Y. 593, 
 
 21 N. E. 710. 
 Banking Depositary trustee of special deposit. 
 
 Cited in American Exch. Nat. Bank v. Loretta Gold & S. Min. Co. 165 111. 
 110, 56 Am. St. Rep. 236, 46 N. E. 202, holding bank cannot apply on correspond- 
 ent's account deposit for transmission for designated beneficiary; Arnot v. Bing- 
 ham, 55 Hun, 557, 9 N. Y. Supp. 68, holding avails of note deposited for collec- 
 tion recoverable from insolvent bank; Goshorn v. People's Nat. Bank, 32 Ind. 
 App. 430, 102 Am. St. Rep. 248, 69 N. E. 185, holding the drawing of a check 
 on bank and handing it to cashier to deposit with a trust company, the cashier 
 instead of turning it back into cash to cover embezzlement is not payment of 
 deposit; People ex rel. Zotti v. Flynn, 135 App. Div. 281, 120 N. Y. Supp. 511, 
 holding that where steamship ticket agent receives money to transmit to foreign 
 country he does so in a fiduciary capacity and a deposit of same in his own 
 name is a conversion amounting to larceny under statute. 
 
 Cited in footnote to Pickle v. People's Nat. Bank, 7 L. R. A. 93, which holds 
 -acceptance of check necessary to give right of action against bank. 
 
 Cited in notes (8 L.R.A. 45) on liability of agent of collecting bank; (21 
 L.R.A. (N.S.) 816) on duty of bank as to payment of money held as bailee; 
 (22 Am. St. Rep. 876) on bank deposits; (86 Am. St. Rep. 778. 779) on title ot 
 bank to money deposited with or collected by it. 
 
 4 L. R. A. 331, ROOT v. LONG ISLAND R. CO. 114 N. Y. 300, 11 Am. St. Rep. 
 
 643, 21 N. E. 403. 
 Carriers; discrimination, -when justified. 
 
 Cited in Lough v. Outerbridge, 143 N. Y. 278, 25 L. R. A. 677, 42 Am. St. Rep. 
 712, 38 N. E. 292. holding carrier may give reduced rates to customers agreeing 
 to give all their business: Interstate Commerce Commission v. Baltimore & O. 
 R. Co. 43 Fed. 55, holding party rates offered to public generally lawful ; Cleve- 
 land, C. C. & I. R. Co. v. Closser, 126 Ind. 353, 9 L. R. A. 757, 22 Am. St. Rep. 
 593, 26 N. E. 159, holding rebate to shipper not illegal where discrimination 19 
 not unjust or oppressive; Western U. Teleg. Co. v. Call Pub. Co. 44 Neb. 335, 
 27 L. R. A. 625, 48 Am. St. Rep. 729, 62 N. W. 506, holding difference in condi- 
 L.R.A. Au. Vol. L 43. 
 
4 L.R.A. 328] L. R. A. CASES AS AUTHORITIES. 674 
 
 tions affecting service justifies discrimination in rates; Kidder v. Fitchburg R. 
 Co. 165 Mass. 400, 43 N. E. 115, holding persons doing express business entitled to 
 equal accommodations on trains; Louisville, E. & St. L. Consol. R. Co. v. Wilson, 
 132 Ind. 526, 18 L. R. A. 109, 32 N. E. 311, holding railroad cannot discriminate 
 between shippers of same goods from same points in full cars; Strough v. New 
 York C. & H. R. R. Co. 92 App. Div. 585, 87 N. Y. Supp. 30, holding question 
 whether carrier unreasonably neglected to provide sufficient number of cars for 
 freight properly submitted to jury; Fairford Lumber Co. v. Tombigbee Valley 
 R. Co. 165 Ala. 285, 51 So. 770, holding sufficient, complaint for overcharge 
 of freight, alleging extortion of excessive rate and compulsion to pay such 
 rate to have freight moved; New York Teleph. Co. v. Siegel-Cooper Co. 202 N. 
 Y. 508, 36 L.R.A.(N.S.) 563, 96 N. E. 109, Affirming 137 App. Div. 160, 121 X. 
 Y. Supp. 1033, holding that telephone company does not make unjust discrim- 
 ination by furnishing service to municipalities, charitable institutions and clergy- 
 men at discount; Wright v. Glen Teleph. Co. 112 App. Div. 746, 99 X. Y. Supp. 
 85, holding a refusal to supply telephone service to an applicant at rates charged 
 others making same use and a demand of an unusual rate, constitutes unjust dis- 
 crimination; State v. Central Vermont R. Co. 81 Vt. 469, 130 Am. St. Rep. 1065, 
 71 Atl. 194, holding a difference in charge of 50 cents per ton for transportation 
 of coal against the complainant not an unjust discrimination where the regular 
 charge as paid by complainant is reasonable and annotation cited to same point; 
 Steinman v. Edison Electric Illuminating Co. 24 Lane. L. Rev. 336, 17 Pa. Dist. 
 R. 463, holding that in case of discrimination the jury is not bound to find that 
 it is unjust. 
 
 Annotation cited in Missouri K. & T. R. Co. v. New Era Mill Co. 79 Kan. 440, 
 100 Pac. 273, on the law in general on lawful and just discrimination by carriers 
 against localities and individuals. 
 
 Cited in notes (9 L.R.A.) 756) on state power to regulate freights and fares; 
 (22 Am. St. Rep. 611) on carrier's right to discriminate; (5 Eng. Rul. Cas. 378, 
 380) on unjust discriminations by carriers. 
 Agreement for rebate. 
 
 Cited in Parks v. Jacob Dold Packing Co. 6 Misc. 572, 27 N. Y. Supp. 289, 
 holding contract by shipper for rebate from carriers illegal. 
 
 Cited in footnotes to Fitzgerald v. Grand Trunk R. Co. 13 L.R.A. 70, which 
 holds agreement for rebate to one shipper illegal; Laurel Cotton Mills v. Gulf 
 & S. I. R. Co. 66 L.R.A. 453, which holds milling in transit agreement between 
 manufacturer and carrier by which former is to be credited on freight bills for 
 manufactured goods shipped freight paid on raw materials shipped to mill not 
 prohibited rebate. 
 
 Cited in note (26 L.R.A. (N.S.) 552) on right of carrier to grant rebate or 
 allowance for use of shipper's tracks. 
 Nonperformance of contract. 
 
 Distinguished in Indian Mountain Jellico Coal Co. v. Asheville Ice & Coal Co. 
 134 N. C. 583, 47 S. E. 116, holding seller not excused from absolute contract to 
 deliver certain quantity of coal, except as specified in contract. 
 
 4 L. R. A. 333, DOBBIN v. CORD1NER, 41 Minn. 165, 16 Am. St. Rep. 683, 42 
 
 N. W. 870. 
 What constitutes an estoppel. 
 
 Cited in Esty v. Cummings, 80 Minn. 519, 83 N. W. 420, holding grantor es- 
 topped to assert contract of defeasance against lender of money relying on appear- 
 ance of title; St. Louis & S. F. R. Co. v. Foltz. 52 Fed. 631, holding married 
 woman retaining award estopped to assert illegality of condemnation of her 
 
675 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 330 
 
 separate property; Knight v. Schwandt, 07 Minn. 73, 69 N. W. 626, holding mar- 
 ried woman estopped by void deed from acquiring title; Laythe v. Minnesota 
 Loan & Invest. Co. 101 Minn. 155, 112 X. W. 65, holding that where a married 
 daughter transferred the land to her mother, without her husband joining in 
 the deed, a court will not cancel the deed, where it appears that the legal title 
 should have been in the mother. 
 
 Cited in footnotes to Wilder v. Wilder, 9 L. R. A. 97, which holds married 
 woman estopped to claim vendor's lien by representing that one loaning to vendee 
 should have first mortgage; O'Connor v. Clark, 29 L. R. A. 607, which holds one 
 permitting another to have name and occupation painted on wagon estopped to 
 assert title as against innocent purchaser; Grice v. Woodworth, 69 L.R.A. 584 r 
 which holds married woman estopped to set up invalidity of contract by her 
 husband and herself to sell homestead for failure to comply with certain con- 
 ditions after purchaser has paid purchase price, taken possession, and made 
 valuable improvements. 
 
 Cited in notes (4 L.R.A. 783) on application of rule of estoppel to married 
 women; (7 L.R.A. 641) on wife's capacity to contract; (20 Am. St. Rep. 943; 
 57 Am. St. Rep. 171, 172, 179) on estoppel of married women. 
 Imperfectly attested conveyances; validity. 
 
 Cited in Lydiard v. Chute, 45 Minn. 279, 47 N. W. 967, holding defectively 
 acknowledged deed valid between parties; Roberts v. Nelson, 65 Minn. 242, 68 
 X. W. 14, holding lease subscribed by one witness valid. 
 
 4 L. R. A. 336, RAINSBURG v. FYAN, 127 Pa. 74, 17 Atl. 678. 
 Municipal indebtedness. 
 
 Cited in Safe Deposit Bank v. Schuylkill County, 190 Pa. 191, 42 Atl. 539, 
 raising without deciding question whether failure to file statement as to in- 
 debtedness, etc., invalidates county's note; Wade v. Oakmont, 165 Pa. 484, 30 
 Atl. 959, holding where new and old indebtedness are less than 2 per cent of 
 assessed valuation, statement need not be filed; Re Hempfield Twp. 57 Pittsb. 
 L. J. N. S. 243, 36 Pa. Co. Ct. 545, 11 Del. Co. Ct. Rep. 203, holding notwith- 
 standing statute an advance of money to county board by one of members to 
 pay for machinery may be recovered; Bloomsburg Land Improv. Co. v. Blooms- 
 burg, 215 Pa. 460, 64 Atl. 602, 31 Pa, Co. Ct. 616, holding no recovery of rent 
 may be had for lease of a public amusement park to a borough such borough 
 maintaining park as source of reveneue; Long v. Lemoyne, 222 Pa. 318, 21 L.R.A. 
 (X.S.) 477, 71 Atl. 211, holding that money loaned to a Iborough under an invalid 
 resolution may be recovered in an action for money had and received though 
 the note given is void. 
 
 Cited in footnote to McBean v. Fresno, 31 L. R. A. 794, which holds limitation 
 of city indebtedness not violated by contract to pay annual sum for term of years, 
 if annual sum within limit. 
 
 Cited in note (7 L. R. A. 760) on power of municipalities to borrow money. 
 Bonn fide holders of municipal bonds. 
 
 Cited in footnotes to Wilkes County v. Call, 44 L. R. A. 252. which denies 
 possibility of there being bona fide holder of county bonds issued under unconsti- 
 tutional statute; Flagg v. School Dist. No. 70, 25 L. R. A. 363, which denies 
 right to question, as against bona fide purchaser, consideration of bonds issued 
 to pay audited claims. 
 
 Cited in note (51 Am. St. Rep. 834, 861) on municipal bonds in hands of bona 
 fide holders. 
 
4 L.K.A. 339] L. R. A. CASES AS AUTHOIUT1ES. 676 
 
 4 L. R. A. 339, MANNING v. FRENCH, 14!) M:is s . 391, 21 N. E. 945. 
 
 Appeal dismissed in 133 U. S. 186, 33 L. ed. 582, 10 Sup. Ct. Rep. 258, for want 
 of jurisdiction. 
 <'o nrls: inherent powers. 
 
 Cited in Re Ricker, G6 N. H. 211, 24 L. R. A. 741, 29 Atl. 559, holding power 
 to admit or remove attorneys inherent in court. 
 
 Cited in notes (13 L.R.A. 259) on judges of court of commissioners of Alabama 
 claims; (15 Eng. Rul. Cas. 51) on civil liability of judges. 
 HiiilH of disbarred attorney to practice. 
 
 Cited in note (24 L.R.A. (N.S. ) 757) on right of disbarred or suspended attor- 
 ney or unlicensed person to transact legal business for another. 
 
 4 L. R. A. 343, NATIONAL EXCH. BANK v. GAY, 57 Conn. 224, 17 Atl. 555. 
 Guaranty, construction of. 
 
 Cited in Denniston v. Schaal, 5 Pa. Super. Ct. 636, 41 W. N. C. 319, holding 
 intention of parties gathered from accompanying circumstances governs construc- 
 tion of guaranty; Gay v. Ward, 67 Conn. 153, 32 L. R. A. 819, 34 Atl. 1025, 
 holding guarantor's estate not liable for renewals or advancements made after 
 and with knowledge of his death. 
 
 Cited in footnotes to Staver & Walker v. Locke, 17 L. R. A. 652, which holds 
 payment of notes taken by agent for goods sold not covered by guaranty of full 
 performance of agent's engagements; Laclnnan v. Block, 28 L. R. A. 255, which 
 holds surety not discharged by creditor's failure to disclose debtor's previous 
 embezzlement; Blyth v. Pinkerton, 57 L. R. A. 468, which holds guaranty of de- 
 tective's salary and expenses in working up murder case ceases on conviction of 
 suspect and settlement of bill. 
 
 Cited in notes (4 L. R. A. 268, 6 L. R. A. 383, 8 L. R. A. 381) on construction 
 of contract of guaranty; (8 L.R.A. 382) on continuing guaranty; (16 L.R.A. (N.S.) 
 775) as to when guaranty of commercial paper covers renewals; (39 L.R.A. (N.S. ) 
 735) as to when a guaranty is continuing. 
 
 Distinguished in Home Sav. Bank v. Hosie, 119 Mich. 127, 77 N. W. 625, hold- 
 ing bond to secure loans during ensuing year continuing guaranty binding estate 
 of obligor dying within year; Schoonover v. Osborne, 117 Iowa, 432, 90 X. W. 
 844, holding act of charging advancements and crediting payments as one con- 
 tinuous account not affected by secret intentions to apply payments otherwise. 
 Necessity of notice of acceptance. 
 
 Cited in footnotes to German Sav. Bank v. Drake Roofing Co. 51 L. R. A. 758, 
 which holds notice of acceptance necessary to bind guarantor; Nading v. Mc- 
 Gregor, 6 L. R. A. 686, which holds notice unnecessary to one agreeing "guar- 
 antee to pay for" any timber of certain class; Wright v. Griffith, 6 L. R. A. 639, 
 which holds unnecessary notice of acceptance of guaranty given after refusal of 
 credit; Cowan, M. & Co. v. Roberts, 65 L.R.A. 729, which holds notice of accept- 
 ance not necessary to bind one guaranteeing debt with provision that guaranty 
 shall remain in force until full payment or discharge in writing. 
 Obligor's direct interest affecting liability. 
 
 Cited in Pittsburgh, C. C. & St. L. R. Co. v. Keokuk & H. Bridge Co. 46 C. 
 (C. A. 645, 107 Fed. 788, holding railroads using bridge agreeing to make up 
 deficiencies in tolls not discharged by bridge company's departure from contract. 
 ^Vational banks Extension of corporate existence. 
 
 Cited in First Presby. Church v. National State Bank, 57 N. J. L. 31, 29 Atl. 
 320, holding extension of existence of national bank does not affect its identity; 
 C. Lamb & Sons v. Dobson, 117 Iowa, 128, 90 N. W. 607, holding that life of 
 
677 L. R. A. GASES AS AUTHORITIES. [4 L.R.A. 353 
 
 corporation may be prolonged by amendment to articles in compliance with 
 
 statute. 
 
 Bank's possession of check. 
 
 Cited in footnote to Pickle v. People's Nat. Bank, 7 L. R. A. 93, which holds 
 possession of check by bank raises no presumption of payment to payee. 
 
 4 L. R. A. 348, PHINNEY v. PHINNEY, 81 Me. 450, 10 Am. St. Rep. 266, 17 
 
 Atl. 405. 
 Constitutional law Impairment of contracts. 
 
 Cited in Allen v. Allen, 95 Cal. 197, 205, 16 L. R. A. 652, 655, 30 Pac. 213, 
 holding time for redemption from mortgage cannot be extended by subsequent 
 statute; Yeatman v. King, 2 N. D. 430, 33 Am. St. Rep. 797, 51 N. W. 721, holding 
 statute making seed-grain liens superior to existing mortgages unconstitutional; 
 Green v. Thornton, 8 Cal. App. 166, 96 Pac. 382, holding statutes changing time 
 of redemption not applicable to obligations entered into prior to the changes; 
 Hayes v. Briggs, 106 Me. 427, 76 Atl. 905, holding that statute authorizing 
 probate judge to instruct administrator to sue on probate bond affects remedy 
 only. 
 
 Cited in footnotes to Peninsular Lead & Color Works v. Union Oil & Paint Go. 
 42 L. R. A. 331, which holds statute for dissolution of attachment by assignment 
 for creditors within ten days void as to contracts made when right of attachment 
 absolute; Second Ward Sav. Bank v. Schranck, 39 L. R. A. 569, which denies right 
 to change remedy on existing notes on warrants of attorney; Lawrence v. Louis- 
 ville, 27 L. R. A. 560, which holds right to compel defense of limitation pro- 
 tected against subsequent change of law; International Bldg. & L. Asso. v. 
 Hardy, 24 L. R. A. 284, which denies legislative power to change remedy for 
 enforcing trust deed; Kirkman v. Bird, 58 L. R. A. 670, which sustains as to 
 prior obligations statute exempting wages for sixty days preceding levy; Jones 
 v. German Ins. Co. 46 L. R. A. 860, which sustains statute shortening time of 
 insurance company's immunity from suit without extending period of limita- 
 tions; Beverly v. Barnitz, 31 L. R. A. 74, which upholds statute changing remedy 
 on mortgage contract by extending time for redemption; White v. Farmers' 
 Higliline Canal & Reservoir Co. 31 L. R. A. 828, which holds act regulating dis- 
 tribution of water from canals valid as applied to prior contract; Miners' & 
 Merchants' Bank v. Snyder, 68 L.R.A. 312, which holds corporate creditor's con- 
 tract rights not impaired by statute requiring all creditors to unite in one suit 
 against all stockholders for equitable distribution of liability fund among cred- 
 itors. 
 
 Cited in notes (10 L. R. A. 407) on power to take away vested rights; (16 
 L. R. A. 647 ) on change of decision of state court as unconstitutional impairment 
 of contract; (120 Am. St. Rep. 470) on effect of statutes making pre-existing 
 contracts illegal. 
 
 Distinguished in Fitzgerald v. Phelps & B. Windmill Co. 42 W. Va. 579, 26 
 S. E. 315, holding subsequent act providing for sale on execution, constitutional. 
 
 4 L. R. A. 353, LOOS v. WILKINSON, 113 N. Y. 485, 10 Am. St. Rep. 495, 21 
 
 N. E. 392. 
 Rule as to recovery of actual damages. 
 
 Cited in Dyka v. National Transit Co. 22 App. Div. 362, 49 N. Y. Supp. 180, 
 holding measure of damages for oil wrongfully taken from land under supposi- 
 tion of legal right, is value in the earth: Costicli v. Rochester, 68 App. Div. 631, 
 73 N. Y. Supp, 835, holding owner whose property is covered through overflow 
 from sewer in heavy rainfalls not entitled to punitive damages; Boshart v. 
 
4 L.R.A. 353] L. R. A. CASES AS AUTHORITIES. 678 
 
 Kirley, 34 Misc. 246, 69 N. Y. Supp. 623, holding, upon disagreement, allowances 
 to mortgagee under void mortgage should be settled by referee or court ; Smith 
 v. \Yise, 132 N. Y. 179, 30 N. E. 229, holding allowance to fraudulent assignee 
 for appraising stock, legal services, rent of factory, labor, etc., properly refused ; 
 Hamilton Nat. Bank v. Halsted, 134 N. Y. 524, 525, 30 Am. St. Rep. 693, 31 
 N. E. 900, holding fraudulent transferee of securities, subject to valid debt lien 
 liable only for value of debtor's equity; Brown v. Chubb, 135 N. Y. 181, 31 N. 
 E. 1030, holding constructively fraudulent grantee of land may hold it as security 
 for honest debt; Hamilton Nat. Bank v. Halsted, 56 Hun, 534, 9 N. Y. Supp. 
 852, holding fraudulent vendee entitled to reimbursement for money paid in 
 relieving property from encumbrance; McConihe v. Derby, 62 Hun, 94, 16 N. Y. 
 Supp. 474, holding fraudulent vendee cannot retain proceeds of property sold 
 and applied to his own debt; Abell v. Bradner, 39 N. Y. S. R. 10, 15 N. Y. Supp. 
 64, holding accountability of administrator for rents of intestate's property pur- 
 chased by him must only be fair rental value; Daisy Roller Mills v. Ward, 6 N. 
 D. 325, 70 N. W. 271, holding fraudulent grantee cannot hold land as security 
 for advances; Baldwin v. June, 68 Hun, 287, 22 N. Y. Supp. 852, holding fraudu- 
 lent grantee with knowledge can hold property as security for value of land con- 
 veyed in exchange; Ackerman v. Merle, 137 Cal. 172, 69 Pac. 983, holding fraudu- 
 lent grantee paying mortgage, entitled to subrogation, upon the setting aside of 
 conveyance on behalf of creditors. 
 
 Distinguished in Baldwin v. Short, 54 Hun, 476, 7 N. Y. Supp. 717, holding 
 fraudulent grantee with knowledge cannot hold property as security for valid 
 debt. 
 Collection of rent. 
 
 Cited in Collins v. Collins, 8 App. Div. 507, 40 N. Y. Supp. 902, holding co- 
 tenant chargeable with share of amount executrix found entitled to for collec- 
 ing rent. 
 Taxes and repairs. 
 
 Cited in Haight v. Pine, 10 App. Div. 474, 42 N. Y. Supp. 303, holding one in 
 wrongful possession of land entitled to allowance for expenditures for taxes and 
 repairs. 
 Interest. 
 
 Cited in Elmira Iron & S. Rolling Mill. Co. v. Llmira, 5 Misc. 196, 25 N. Y. 
 Supp. 657, holding contract rate of interest on bond, less than legal rate, con- 
 tinues after maturity. 
 T)eetl as security for liability of Indorser. 
 
 Cited in Lazarus v. Rosenberg, 70 App. Div. 107, 75 N. Y. Supp. 11, upholding 
 deed transferred as security for indorsement against creditors to extent of such 
 liability. 
 Fraudulent conveyances. 
 
 Cited in Putzel v. Schulhotf, 25 Jones & S. 508, 8 N. Y. Supp. 651, holding 
 creditors not entitled to policies on property fraudulently transferred, not taken 
 out for benefit of judgment debtor or his creditors. 
 
 Cited in note (9 L. R. A. 416) on validity of voluntary conveyance. 
 Accountability of grantee on cancelation. 
 
 Cited in Adams v. Young, 200 Mass. 591, 86 N. E. 942, holding that the bona 
 fide purchaser of stock of merchandise in bulk is entitled to subrogation to secur- 
 ities of creditors of vendor whose claims he has paid, though the sale to him is 
 fraudulent as to such creditors; Re Medina Quarry Co. 179 Fed. 933, holding 
 that where one in fraud of creditors of transferor takes a transfer in bad faith 
 
679 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 3G8 
 
 he is not a trespasser and is only accountable for net profits earned from opera- 
 tion of the business transferred after allowance of expenditures other than taxes. 
 
 4 L. R. A. 360, BRACKENRIDGE v. STATE, 27 Tex. App. 513, 11 S. W. 630. 
 Removal of public officer. 
 
 Cited in State v. Welsh, 109 Iowa, 22, 79 N. W. 369, holding misconduct prior 
 to re-election ground for removal; State ex rel. Schultz v. Patton, 131 Mo. App. 
 632, 110 S. W. 636, holding defalcations in office of collector prior to election 
 to office of treasurer not grounds for removal from last office. 
 Disqualification of juror Xew trial. 
 
 Cited in note (18 L. R. A. 474) on disqualification of juror as ground for new 
 trial. 
 
 Overruled in Leeper v. State, 29 Tex. App. 71, 14 S. W. 398, holding disqualifi- 
 cation of juror not ground for new trial. 
 {.liability of officer tvrongrfnlly receiving fees. 
 
 Cited in footnote to Marcotte v. Allen, 40 L. R. A. 185, which holds officer 
 receiving fees to which he has no right, without informing person paying him, 
 liable to action for money had and received. 
 
 Cited in note (116 Am. St. Rep. 451, 452) on what constitutes extortion. 
 Evidence. 
 
 Cited in note (62 L. R. A. 277, 341) in evidence of other crimes in criminal case. 
 Statutory demand or presentment of claim. 
 
 Cited in Efland v. Southern R. Co. 146 K C. 133, 59 S. E. 359, holding a written 
 statement of overcharges in separate items accompanied by bill of lading and 
 paid freight bill amounts to a written demand for each overcharge in compli- 
 ance with statute; Babbitt v. Chicago & A. R. Co. 149 Mo. App. 449, 130 S. W. 
 364. holding that demand within statute as to interest on accounts is request 
 to do particular thing, under claim of right on part of person requesting. 
 
 4 L. R. A. 365, GRAYSON v. WILLOUGHBY, 78 Iowa, 83, 42 N. W. 591. 
 Corporations; consolidation. 
 
 Cited in Chevra, Bnai Israel v. Chevra Bikur Cholim, 24 Misc. 190, 52 N. Y. 
 Supp. 712, holding corporations cannot consolidate without legislative authority. 
 
 Cited in notes (52 L.R.A. 391) on right of corporations to consolidate; (52 
 Am. St. Rep. 55] ) on estoppel of member of consolidated insurance company. 
 
 4 L. R. A. 367, POMEROY'S APPEAL, 127 Pa. 492, 18 Atl. 4. 
 Effect of Probate. 
 
 Cited in Re Miller, 216 Pa. 256, 65 Atl. 681, holding a decree admitting will 
 to probate is conclusive as to the appointment of the executor named therein 
 when unappealed from; Taylor's Estate, 24 Montg. Co. L. Rep. 127, holding that 
 granting of letters testamentary is pro forma act to give effect to will. 
 
 4 L. R. A. 368, HINDMARCH v. HOFFMAN, 127 Pa. 284, 14 Am. St. Rep. 842, 
 
 18 Atl. 14. 
 Assumpsit for money received by third person. 
 
 Cited in Fay v. Slaughter, 194 111. 168, 56 L. R. A.. 569, 88 Am. St. Rep. 148, 
 62 X. E. 592. holding drawer cannot recover from innocent person through whose 
 bank account checks fraudulently obtained were passed; Greer v. Newland, 70 
 Kan. 313. 70 L.R.A. 557, 109 Am. St. Rep. 424, 77 Pac. 98, holding commission 
 merchant liable to mortgagee for proceeds from acceptance and sale of mort- 
 gaged stock though he lias only constructive knowledge of mortgage by way of 
 
4 L.R.A. 368] L. R. A. CASES AS AUTHORITIES. 680 
 
 record; Humbird v. Davis, 230 Pa. 320, 59 Atl. J082, holding that where agent 
 has made a profit from money of his principals such principals may maintain ani 
 action in assumpsit for money had and received against the agent; Sensenig v. 
 Seiverling, 22 Lane. L. Rev. 76, holding that owner of horse may replevin him 
 from person with whom owner's agent traded withoiit authority or sue such 
 person for conversion, on refusal to give up horse; Linton v. Shenk, 25 Lane. L. 
 Rev. 338, holding that widow cannot maintain assumpsit against executors of 
 husband for money she entrusted to one of them. 
 
 Cited in footnote to Soderberg v. King County, 33 L. R. A. 670, which author- 
 izes assumpsit against county for fees erroneously paid by sheriff on foreclosure 
 sale. 
 Conversion. 
 
 Cited in Dixon v. Owens, 21 Pa. Super. Ct. 377, holding race-track owner 
 permitting trainer wrongfully to take away horse, liable to owner for value 
 thereof; Hornefius v. Wilkinson, 51 Or. 48, 93 Pac. 474, holding tort can be 
 waived and action brought on implied contract for money given to defendant 
 to invest with his own when he conveys property bought and fails to account. 
 Title of one taking- money from thief. 
 
 Cited in note (25 L.R.A. (N.S.) 635) on title of one taking money from thief 
 or embezzler. 
 
 4 L. R. A. 370, BAKER v. BREM, 103 N. C. 72, 9 S. E. 629. 
 Negotiable Instruments Rig-hts of maker. 
 
 Cited in Mader v. Cool, 14 Ind. App. 303, 56 Am. St. Rep. 304, 42 N. E. 945, 
 holding payee transferring note wanting consideration to bona fide holder, liable 
 to maker; Burgess v. Alcorn, 75 Kan. 737, 90 Pac. 239, on the liability of payee 
 to maker of negotiable note for face value of note where there is a failure of 
 consideration therefor and the note is in the hands of a bona fide holder. 
 
 Cited in note (27 L. R. A. 521) on liability for transferring negotiable note- 
 to bona fide holder so as to cut off defense. 
 
 Instructions, what improper. 
 
 Cited in Norton v. North Carolina R. Co. 122 N. C. 934, 29 S. E. 880. holding 
 refusal of instruction that in certain event plaintiff could not recover, no error; 
 Rickert v. Southern R. Co. 123 N. C. 258, 31 S. E. 497, holding where evidence- 
 conflicting, request to charge, "If jury believe evidence, answer to issue should 
 be 'No,'" properly refused; Jones v. Balsley, 154 N. C. 65, 69 S. E. 827, holding 
 improper instruction that if jury believe evidence, plaintiff is entitled to recover. 
 
 Distinguished in Alexander v. Richmond & D. R. Co. 112 N. C. 732, 16 S. E.. 
 896, holding conclusion of instruction in objectionable form not error where 
 facts given as requested. 
 Rescission of contracts. 
 
 Cited in notes (9 L.R.A. 611) on rescission of contract for breach of warranty; 
 (36 L.R.A. (N.S.) 468, on sales: use as waiver of right to rescind for breach of 
 warranty or noncompliance with contract. 
 
 4 L. R. A. 373, CHIPPEWA LUMBER CO. v. TREMPER, 75 Mich. 30, 13 Am. 
 
 St. Rep. 420, 42 N. W. 532. 
 Deeds; restrictions as to nse of premises. 
 
 Followed in Burdell v. Grandi, 152 Cal. 380, 14 L.R.A. (N.S.) 912, 92 Pac. 
 1022, holding a condition in deed prohibiting sale of liquor under penalty of 
 forfeiture inserted to enable grantor to obtain a monopoly on retail liquor 
 traffic is invalid. 
 
681 L. R. A. CASES AS AUTHORITIES. . [4 L.R.A. 380 
 
 Cited in Jenks v. Pawlowski, 98 Mich. 112, 22 L. R. A. 864, 39 Am. St. Rep. 
 522, 56 N. W. 1105, holding restriction cannot be insisted on by grantor if 
 adjoining property thereafter conveyed without restriction; Brown v. Wright man, 
 5 Cal. App. 394, 90 Pac. 467, holding that conveyance and lease of tracts ad- 
 joining tract restricted in deed, by same grantor for a purpose the subject of 
 the restriction on the restricted tract is a waiver of such restriction. 
 
 Cited in notes (28 L.R.A.(N.S.) 709) on enforcement of restrictive covenant 
 as affected by change in neighborhood; (79 Am. St. Rep. 762) on restrictions 
 as to intoxicating liquors; (95 Am. St. Rep. 222) on validity of conditions and 
 restrictions in deed. 
 
 Distinguished in Frink v. Hughes, 133 Mich. 66, 94 N. W. 600, holding a building 
 restriction in deed not waived by failure to insert same restriction in subsequent 
 deeds to adjoining tracts where such subsequent grantees have followed the 
 scheme of the restriction; Whealkate Min. Co. v. Mulari, 152 Mich. 610, 18 L.R.A. 
 (N.S. ) 148, 116 N. W. 360, holding a condition in a deed against sale of liquors 
 except by grantor valid where the purpose of grantor is to confine traffic to cer- 
 tain limits and keep it under control. 
 
 4 L. R. A. 376, HILL v. DENVER & R. G. R. CO. 13 Colo. 35, 21 Pac. 914. 
 Lien of bailee. 
 
 Annotation cited in Estey Co. v. Dick, 41 Pa. Super. Ct. 616, holding that 
 warehouseman has no lien as against owner of piano wrongfully stored by a 
 bailee. 
 Carriers. 
 
 Cited in notes (5 Eng. Rul. Cas. 283) on carrier's right to retain good? until 
 payment of freight; (2 Brit. Rul. Cas. 612) on effect of deviation upon carrier's 
 right to lien. 
 
 4 L. R. A. 378, WILSON v. ST. PAUL, M. & M. R. CO. 41 Minn. 56, 42 N. W. 600. 
 License. 
 
 Cited in Minneapolis Western R. Co. v. Minneapolis & St. L. R. Co. 58 Minn. 
 132, 59 N. W. 983, holding construction of tracks upon another's land by per- 
 mission and consent mere revocable license; Schultz v. Huffman, 127 Mich. 279, 
 86 N. W. 823, holding right of drainage through lands of another cannot be 
 created by parol; Munsch v. Stelter, 109 Minn. 406, 25 L.R.A.(N.S.) 731, 134 
 Am. St. Rep. 785, 124 N. W. 14, enjoining obstruction by one owner, of ditch 
 constructed by joint co-operation under verbal agreement; Re White Plains, 
 124 App. Div. 3, 108 N. Y. Supp. 596, holding that the right to enter upon 
 land under a license continued until notice of revocation unless revoked by con- 
 veyance, when as against the grantee the licensee becoms a trespasser. 
 
 Cited in footnote to Rodefer v. Pittsburg 0. V. & C. R. Co. 70 L.R.A. 844, 
 which holds siding or switch constructed by railroad company to manufactory 
 at expense of and over land of manufacturer for sole purpose of affording facili- 
 ties for receiving and shipping freight and silent as to period it is to remain 
 not maintainable by railroad company against manufacturer's objection. 
 
 Cited in notes (10 L.R.A. 487) on right by prescription to use lands of 
 another; (49 L.R.A. 500) on revocability of license to maintain a burden upon 
 land, after the licensee has incurred expense in creating the burden; (31 Am. 
 St. Rep. 715, 716) on nature and revocation of parol" licenses. 
 
 4 L. R. A. 380, CARL v. STATE, 87 Ala. 17, 6 So. 118. 
 
 Second appeal in 89 Ala. 97, 8 So. 156. 
 Evidence ns to intoxicating Quality of liquor. 
 
 Cited in Brantley v. State, 91 Ala. 49, 8 So. 816, holding testimony of wit- 
 
4 L.R.A. 380] . L. R. A. CASES AS AUTHORITIES. 682 
 
 nesses as to intoxicating effect of beverage upon themselves admissible; Com. v. 
 Gavin, 160 Mass. 524, 36 X. E. 484, holding testimony of barkeeper that he 
 sold intoxicating beer evidence that beer was intoxicating; State v. Gillispie. G3 
 W. Va. 155, 59 S. E. 957, holding opinion of witness as to whether he thought 
 cider of which he drank would cause intoxication if drank to excess admissible; 
 State v. Good. 56 W. Va. 219, 49 S. E. 121, holding it proper to show that at 
 other times or on other persons a druggist concoction produced none of the 
 effects of intoxication. 
 What liquors are intoxicating. 
 
 Cited in Wadsworth v. Dunnam, 98 Ala. 612, 13 So. 597, holding question for 
 jury whether a cordial is intoxicating; Wadsworth v. Dunnam, 117 Ala. 671, 
 23 So. 699, holding test of intoxicating liquor within statute is whether intoxi- 
 cating quantity may reasonably be drunk; Walker v. Dailey, 101 111. App. 582, 
 holding fact lemon extract would intoxicate as beverage not sufficient to make 
 sale illegal under prohibitory liquor law State v. Kezer, 74 Vt. 53, 52 Atl. 116, 
 holding illegal, sale of essence containing large percentage of alcohol, with knowl- 
 edge it was to be used as a beverage; Marks v. State, 159 Ala. 82, 133 Am. St. 
 Rep. 20, 48 So. 864, on the construction of prohibition laws and the meaning of 
 words and phrases commonly used therein as to what liquors and drinks are 
 intoxicating and come within the prohibition. 
 
 Cited in note (20 L. R. A. 647) on what liquors are within statutory restric- 
 tions as to sale of "spirituous," "vinous," "fermented," and other intoxicating 
 liquors. 
 
 4 L. R. A. 382, MARSH v. SUPREME COUNCIL A. L. OF H. 149 Mass. 512, 21 
 
 N. E. 1070. 
 Beneficiaries entitled to proceeds of certificates. 
 
 Cited in Smith v. Boston & M. R. Relief Asso. 168 Mass. 214, 46 X. E. 626, 
 holding that, where last designation of sister in certificate fails because she is 
 not a "dependent" upon holder, previous designation of wife remains in force; 
 Sargent v. Supreme Lodge K. of H. 158 Mass. 564, 33 X. E. 650, holding bene- 
 ficiary falsely designated as "dependent," not entitled to proceeds of beneficiary 
 certificate; Pease v. Supreme Assembly Royal Soc. of G. F. 17G Mass. 507. 57 
 X. E. 1003, holding bill in equity proper to determine rights between rival 
 claimants to certificate proceeds. 
 
 Cited in note (52 Am. St. Rep. 571) on beneficiaries entitled to proceeds of 
 certificates. 
 NJII iir<- of l>eneflt certificate of insurance. 
 
 Cited in Anthony v. Massachusetts Ben. Asso. 158 Mass. 324, 33 X. E. 577, 
 holding member of beneficiary association could assign part of money payable 
 under certificate to sister; Sanborn v. Black, 07 X. H. 538, 35 Atl. 942, holding 
 directors of association cannot arbitrarily refuse consent to substitution of 
 beneficiary; Danielson v. Wilson, 73 111. App. 297; Hanna v. Hanna, 10 Tex. Civ. 
 App. 101, 30 S. W. 820, holding beneficiaries must be determined by association 
 by-laws, not by certificate. 
 
 Cited in note (12 L. R. A. 210) on certificates of membership in benefit society 
 as insurance policies in effect. 
 Statutory enlargement of association's powers. 
 
 Cited in Tepper v. Supreme Council of R. A. 61 X. J. Eq. 643, 88 Am. St. 
 Rep. 449, 47 Atl. 460, holding stepchildren of insured properly designated in 
 certificate as "members of the family;" Mathewson v. Supreme Council R. A. 
 
083 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 382 
 
 146 Mich. 679, 110 N. W. 69, on designation of beneficiary contrary to by-laws 
 under a statutory amendment. 
 Change of beneficiary. 
 
 Cited in McGowan v. Supreme Court, I. O. of F. 104 Wis. 181, 80 N. W. 603, 
 holding equity will afford relief where insured does every substantial act re- 
 quired to substitute beneficiary before dying; Clark v. Supreme Council R. A. 
 176 Mass. 471, 57 N. E. 787, holding that equity will afford relief where in- 
 tended transfer is prevented by fraud of beneficiary; Jory v. Supreme Council 
 A. L. of H. 105 Cal. 27, 26 L. R. A. 735, 45 Am. St. Rep. 17, 38 Pac. 524, 
 upholding substitution of ^ beneficiary, insured having taken all steps possible 
 therefore; Supreme Conclave R. A. v. Cappella, 41 Fed. 7, holding original bene- 
 iiciary estopped by misconduct from denying compliance of insured with formali- 
 ties as to substitutions; Lahey v. Lahey, 174 N. Y. 155, 61 L. R. A. 795, 95 Am. 
 St. Rep. 554, 66 N. E. 670, holding insured not deprived of right to change bene- 
 ficiary by refusal of original beneficiary to deliver certificate on demand; Schardt 
 v. Schardt, 100 Tenn. 280, 45 S. W. 340, holding that association, may waive 
 formality as to surrender of certificate on change of beneficiary; Holden v. Mod- 
 ern Brotherhood, 151 Iowa, 681, 132 N. W. 329, holding beneficiary changed, where 
 insured did everything except surrender original certificate which original bene- 
 ficiary refused to deliver; Grand Lodge, A. O. U. W. v. McFadden, 213 Mo. 290, 
 111 S. W. 1172, holding that where insured did all he could to comply with by- 
 laws in changing beneficiary except to turn in original certificate to endorse 
 change thereon, an equitable change will be decreed; Grand Lodge, A. 0. U. W. 
 v. O'Malley, 114 Mo. App. 206, 89 S. W. 68, holding substantial compliance with 
 by-laws for protection of society sufficient in making change of beneficiary. 
 
 Cited in notes (7 L. R. A. 189) on transfer of mutual benefit certificates; 
 (15 L. R. A. 353) on changing designation in benefit certificate otherwise than 
 in prescribed method; (49 L. R. A. 738, 739, 754) on power of insured to destroy 
 rights of beneficiary; (14 Am. St. Rep. 527; 25 Am. St. Rep. 264; 52 Am. St. 
 Rep. 562) on change of beneficiary; (87 Am. St. Rep. 516) on assignment of 
 life insurance policies. 
 Mature of beneficiary's right. 
 
 Cited in Mutual L. Ins. Co. v. Twyman, 122 Ky. 522, 121 Am. St. Rep. 471, 
 92 S. W. 335, holding insured may change beneficiaries as he chooses no right 
 vesting in beneficiary before death of insured, where policy stipulates for as- 
 signment or change of beneficiary with consent of company; Davis v. Supreme 
 Council R. I. 195 Mass. 408, 10 L.R.A.(X.S.) 724, 81 N. E. 294, 11 A. & E. Ann. 
 Cas. 777, holding no such interest in beneficiary as to enable him to maintain 
 suit on policy allowing change of beneficiary, where insured being of sound mind 
 committed suicide there being no suicide clause; Cook v. Supreme Conclave I. 
 O. H. 202 Mass. 88, 88 X. E. 584, holding executor cannot recover in policy issued 
 to fraternal society in benefit of assured's wife where she predeceased insured 
 and he did not substitute new beneficiary. 
 
 Cited in notes (19 Am. St. Rep. 790: 52 Am. St. Rep. 566) on nature of right of 
 beneficiary in mutual or membership life or accident insurance. 
 Res jmlicata. 
 
 Cited in note (7 L. R. A. 582) on doctrine of res judicata. 
 
 Distinguished in O'Brien v. Continental Casualty Co. 184 Mass. 585, 69 N. E. 
 308, denying right of creditor in equity to substitution as beneficiary in policy 
 surrendered for that purpose. 
 Meaning of word "family." 
 
 Cited in Townsend v. Townsend, 156 Mass. 456, 31 N. E. 632, construing word 
 
4 L.R.A. 382] L. R. A. CASES AS AUTHORITIES. 684 
 
 "family" used in will as not confined to persons actually living with testator; 
 Speer v. Boston Police Relief Asso. 195 Mass. 353, 81 N. E. 196, holding that 
 where only members of insured's family may be named as beneficiaries two chil- 
 dren married and moved away are not such persons as may be beneficiaries. 
 
 4 L. R. A. 386, VANHORNE v. CORCORAN, 127 Pa. 255, 18 Atl. 16. 
 Special partnerships niul sufficiency of schedules of contribution. 
 
 Cited in Laflin & R. Powder Co. v. Steytler, 146 Pa. 443, 14 L. R. A. 695, 29 
 W. X. C. 233, 23 Atl. 215, holding schedule describing and valuing as a whole 
 several tracts of coal land and rights, sufficient; Haslet v. Kent, 160 Pa. 88, 
 34 W. N. C. 58, 28 Atl. 501, holding that contributions to capital of special 
 partnership cannot be made in personal property of another limited company 
 subject to its debts; Fourth Street Nat. Bank v. Whitaker, 170 Pa. 304, 37 W. X. 
 C. 79, 33 Atl. 100, holding special partner liable as general partner where 
 capital stock contributed by him as unimpaired was unknowingly impaired; 
 Blumenthal Bros. v. Whitaker, 170 Pa. 315, 37 W. X. C. 84, 33 Atl. 103. holding 
 statement that half of specified amount of capital was in goods and merchandise, 
 insufficient; Robbins Electric Co. v. Weber, 172 Pa. 645, 37 W. X. C. 466, 34 
 Atl. 116, holding itemized statement of property contributed sufficient; First 
 Nat. Bank v. Creveling, 177 Pa. 284, 39 W. N. C. Ill, 35 Atl. 595, holding state- 
 ment of real estate contributed at certain value, without specifying lien, defective; 
 Reynolds v. Creveling, 17 Pa. Co. Ct. 29, 4 Pa. Dist. R. 419, holding that where 
 property contributed is subject to liens or debts, certificate should so state; Frank 
 v. Lewis Foundry & Mach. Co. 24 Pittsb. L. J. X. S. 34, holding organization of 
 special partnership upon part payment of stock in encumbered property and over- 
 due notes, illegal; Re Mill Work & Mantel Co. 4 Pa. Super. Ct. 117, holding 
 special partners liable as general partners for filing statement materially untrue 
 and failure to keep subscription book; Siegel v. Haines. 15 Pa. Co. Ct. 46, 
 3 Pa. Dist. R. 467, 35 W. N. C. 358, holding special partners liable as general 
 partners where certificate fails to describe nature and value of goods contributed ; 
 Deckert v. Chesapeake Western Co. 101 Va. 809, 45 S. E. 799, holding word 
 "capital" in statute relating to partnership associations to mean cash or its 
 equivalent; Wood v. Sloman, 150 Mich. 188, 114 X. W. 317, holding a contribu- 
 tion described in schedule of assets as a formula for manufacture valued at 
 45499.998, is insufficient to comply with statute providing for limited partnerships; 
 Chatham Xat. Bank v. Gardner, 31 Pa. Super. Ct. 137, holding members of defec- 
 tive limited partnership liable as general partners, the defect consisting in non- 
 compliance with enabling statute. 
 
 Cited in footnote to Edwards v. Warren Linoline & Gasoline Works, 38 L. R. A. 
 791, which holds partnership association organized under laws of Pennsylvania 
 regarded as partnership instead of corporation in Massachusetts. 
 
 Cited in note (8 L. R. A. 712, 713) on limited partnerships. 
 
 Distinguished in Rehfuss v. Moore, 134 Pa. 473, 26 W. X. C. 108, 7 L. R. A. 665, 
 19 Atl. 756, holding patent-right property contributable to capital of limited 
 partnership. 
 Strict construction of statute. 
 
 Cited in Gearing v. Carroll, 151 Pa. 85, 30 W. N. C. 537, 24 Atl. 1045, holding 
 limited-partnership act must be strictly complied with to obtain its benefits; 
 Hogan v. Hadzsits, 113 Mich. 572, 71 X'. W. 1092, holding specification of con- 
 tribution of special partner in renewal of partnership referred to original con- 
 tribution; Abington Dairy Co. v. Reynolds, 24 Pa. Super. Ct. 639, on burden of 
 showing compliance with the provisions of the .enabling act as resting upon per- 
 sons seeking to set up limited partnership as a defense to individual suit. 
 
685 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 389 
 
 4 L. R. A. 389, LAKE SHORE & M. S. R. CO. v. FRANZ, 127 Pa. 297, 18 Atl. 22. 
 When nonsuit will be refused. 
 
 Cited in Ellis v. Lake Shore & M. S. R. Co. 138 Pa. 521, 21 Am, St. Rep. 914, 
 21 Atl. 140, holding question for jury whether person injured stopped to look 
 and listen at best place at railroad crossing; Ely v. Pittsburgh, C. C. & St. L. R. 
 Co. 158 Pa. 236, 27 Atl. 970, holding facts as to negligence being in dispute must 
 go to jury; Baltimore & O. & C. R. Co. v. Walborn, 127 Ind. 148, 26 N. E. 207, 
 holding questions for jury where more than one inference can be drawn from 
 facts; Bracken v. Pennsylvania R. Co. 32 Pa. Super. Ct. 28, holding nonsuit 
 should be refused under evidence of negligent operation of railroad gates allow- 
 ing people unwarned on crossing while train is passing; Shoemaker v. Philadel- 
 phia, B. & W. R. Co. 9 Del. Co. Rep. 308, holding case for jury, where plaintiff 
 drove on tracks on dark foggy morning, safety being up; Cleveland, C. C. & St. L. 
 R. Co. v. Houghland, 44 Ind. App. 81, 85 N. E. 369, holding that plaintiff should 
 be nonsuited, where he drove on track in fog after hearing whistle of train. 
 Care required at railroad crossings. 
 
 Cited in Roland v. Philadelphia & R. R. Co. 224 Pa. 632. 73 Atl. 958, holding 
 failure to lower gates for passing train evidence of negligence but not con- 
 clusive of itself; Union P. R. Co. v. Rosewater, 15 L.R.A. (N.S.) 808, 84 C. C. 
 A. 616, 157 Fed. 172, 13 A. & E. Ann. Cas. 851, holding that the signal of a 
 flagman to cross will not relieve the person crossing from duty to look and 
 listen before venturing onto tracks; Cleveland, C. C. & St. L. R. Co. v. Powers, 
 173 Ind. 117, 88 N. E. 1073, holding that railroad laborer has no right to rely 
 upon schedule of trains, nor tracks usually taken. 
 
 Cited in footnotes to Van Auken v. Chicago & W. M. R. Co. 22 L. R. A. 33, 
 which holds failure to look and listen on dark night not prevent recovery for 
 injury by engine running backward; Lorenz v. Burlington, C. R. & N. R. Co. 
 56 L. R. A. 753, which holds negligence of one pursuing cow in not looking and 
 listening before crossing railroad track, question for jury: Woehrle v. Minnesota 
 Transfer R. Co. 52 L. R. A. 348, 349, which sustains traveler's right to rely on 
 watchman's absence from crossing; Colorado Southern R. Co. v. Thomas. 70 
 L.R.A. 681, which holds failure to look and listen before crossing track not ex- 
 cused by existence of building adjoining highway which would obstruct view of 
 tracks and by noise created therein which would prevent hearing approaching 
 train. 
 
 Cited in notes (7 L.R.A. 318) on duty of traveler to stop, look, and listen; 
 (4 L.R.A. (X.S.) 521) on duty of traveler going upon railroad crossing when 
 gates are open; (17 L.R.A.(N.S.) 505) on duty to stop, look and listen after 
 entering on first track; (33 L.R.A. (N.S.) 990) on railroads: duty as to opera- 
 tion of safety gates at crossings. 
 
 Distinguished in Matthews v. Philadelphia & R. R. Co. 161 Pa. 32, 28 Atl. 936, 
 holding rule that open safety gates invite traveler to cross, not applicable to 
 trespasser on tracks. 
 Measure of damages. 
 
 Cited in McCloskey v. Bells Gap R. Co. 156 Pa. 258, 27 Atl. 246, upholding 
 misleading general instructions followed by correct enumeration of items of 
 damages recoverable; Braithwaite v. Hall, 168 Mass. 40, 46 N. E. 398, holding 
 wages lost through inability to work in consequence of defendant's negligence, 
 proper damages. 
 Future pain and suffering;. 
 
 Cited in Wallace v. Pennsylvania R. Co. 222 Pa. 561, 128 Am. St. Rep. 817. 77 
 Atl. 1086. holding pain and suffering an element of damage both as to that 
 
4 L.R.A. 389] L. R. A. CASES AS AUTHORITIES. 686 
 
 endured and that which will probably be endured in future as a consequence of 
 the injury. 
 
 4 L. R. A. 392, SMITH v. CLEWS, 114 N. Y. 190, 11 Am. St. Rep. 627, 21 
 
 N. E. 160. 
 Effect 011 contracts of custom of trade. 
 
 Cited in Atkinson v. Truesdell, 127 N. Y. 234, 27 N. E. 844, holding evidence of 
 custom regarding shipment of glass bottles admissible; Burbridge v. Gunibel, 72 
 Miss. 377, 16 So. 792, holding offer to show custom in cotton trade should have 
 been received; Smith v. Clews, 35 N. Y. S. R. 670, 12 N. Y. Supp. 471, holding 
 custom in diamond trade of receipt of diamonds on approval showed no title 
 passed; Saunders v. Payne, 36 N. Y. S. R. 733, 12 N. Y. Supp. 735, holding de- 
 livery of diamonds in the trade, for inspection, passed no title; Booth Bros. v. 
 Baird, 87 Hnn, 455, 35 N. Y. Supp. 392, holding term used in trade not so firmly 
 established as to require assumption that parties contracted with reference to 
 it; Everitt v. Indiana Paper Co. 25 Ind. App. 292, 57 N. E. 281, holding usage in 
 paper trade presumed to have been considered by parties to contract; Pucci v. 
 Barney, 2 Misc. 356, 21 N. Y. Supp. 1099, holding evidence of custom of surveyors 
 in making allowances for excavation below depths mentioned in contract ad- 
 missible; Neff v. Klepfer, 16 Misc. 51, 37 N. Y. Supp. 654, holding evidence ad- 
 missible to explain meaning of contract to keep boxes on call; Underw T ood v. 
 Greenwich Ins. Co. 161 N. Y. 424, 55 N. E. 936, holding evidence admissible of 
 custom as to effect of binding slip in insurance; Re Hayes, 37 Misc. 272, 75 N. Y. 
 Supp. 312, holding evidence admissible to prove custom of stock exchange in re- 
 lation to transfer of seat; Hammann v. Jordan, 129 N. Y. 66, 29 N. E. 294, hold- 
 ing evidence of custom of putting flues in party walls in New York admissible 
 on building contract; Van Camp Packing Co. v. Hartman, 126 Ind. 180, 25 
 N. E. 901, holding express contract cannot be varied by evidence of custom of a 
 different time for receiving goods; Scott v. Hartley, 126 Ind. 243, 25 N. E. 826, 
 holding parol evidence of custom not admissible to vary terms of express con- 
 tract; Anderson v. Dickinson, 72 Hun, 561, 25 N. Y. Supp. 533, construing con- 
 tract in reference to commissions; Chilberg v. Lyng, 63 C. C. A. 451, 128 Fed. 
 902, holding custom contrary to public policy not available to defendant in 
 action to recover money received by defendant as selling agent. 
 
 Cited in footnotes to German American Ins. Co. v. Commercial F. Ins. Co. 16 
 Li. R. A. 291, which holds custom in particular city as to what constitutes "build- 
 ing" or "risk" not presumed to be known to foreign company; Baltimore Base 
 Ball & Exhibition Co. v. Pickett, 22 L. R. A. 690, w r hich holds special contract 
 for definite time not affected by custom to discharge ball players on ten days' 
 notice; Pennsylvania R. Co. v. Xaive, 64 L.R.A. 443, Avhich holds carrier not 
 negligent in failing to notify consignee of arrival of perishable goods on legal 
 holiday on which by general custom of locality all business is suspended; Dela- 
 ware Ins. Co. v. S. S. White Dental Mfg. Co. 65 L.R.A. 387, which holds marine 
 policy providing that no risk shall attach until amount and description is ap- 
 proved and indorsed thereon, not changed into open and unrestricted policy cov- 
 ering all property assured elects to report, by adopting agreement fixing uniform 
 premium, supplying blanks on which to report risks, and a long continued cus- 
 tom of reporting risks by assured when convenient, and their uniform acceptance 
 l>y insurer. 
 
 Cited in notes (13 L. R. A. 440) on custom and usage as law; (10 L. R. A. 
 785) on law usage and custom as part of contract. 
 A<lmissil>ility of evidence in relation to written contract. 
 
 Cited in Thomas v. Scutt, 127 N. Y. 141, 27 N. E. 961, holding evidence not 
 
687 L. K. A. CASES AS AUTHORITIES. [4 L.R.A. 393 
 
 admissible to show complete written contract part performance of entire verbal 
 agreement ; Williams v. Searcy, 94 Ala. 364, 10 So. 632, holding parol evidence 
 not admissible to contradict terms of written contract; House v. Walch, 144 
 N. Y. 422, 39 X. E. 327, holding evidence inadmissible to vary contract relating 
 to sale of real estate; Sage v. Shepard & M. Lumber Co. 4 App. Div. 294, 39 N. Y. 
 Supp. 449, holding principal did not hold out agent as acting for him in sale 
 of lumber; Southampton v. Jessup, 173 N. Y. 89, 65 N. E. 949, holding parol 
 evidence inadmissible to vary unambiguous resolution of town trustees. 
 
 Cited in footnote to Harris v. Sharpies, 58 L. R. A. 214, which denies right 
 under contract to add lithographer's name for advertising purposes to litho- 
 graphed cover design. 
 
 Cited in note (14 Eng. Rul. Cas. 673) on parol evidence as to usage in inter- 
 pretation of written contracts. 
 Title of groods pledged. 
 
 Cited in La Fetra v. Glover, 10 Misc. 71, 31 N. Y. Supp. 150, holding pledgee 
 acquires no title if pledger has none; Williams v. Ashe, 111 Cal. 184, 43 Pac. 595, 
 holding purchaser from pledgee takes at least the limited title latter can pass; 
 Eisenberg v. Nichols, 22 Wash. 75, 79 Am. St. Rep. 917, 60 Pac. 124, holding 
 innocent purchaser from retailer of diamonds under memorandum contract with 
 wholesaler protected by statute relating to conditional sale; Kauffman v. Klang, 
 1C Misc. 381, 38 N. Y. Supp. 56, holding unauthorized pledge to one without 
 notice that another is owner vests no title in pledgee ; Ludwin v. Barruch, 34 
 Misc. 545, 69 X. Y. Supp. 933, holding owner cannot regain possession of chattels 
 pledged by agent to whom intrusted without paying advances; Schwab v. Oat- 
 man, 56 Misc. 398, 106 X. Y. Supp. 741-, holding buyers not estopped to assert 
 their title against honest purchasers by following custom of business in leaving 
 goods in possession of selling agent until ready to receive goods and designate 
 points of delivery, where selling agent obtained advances thereon from defend- 
 ants. 
 
 Cited in notes (25 L.R.A. (X.S.) 778) on right of one leaving chattels in an- 
 other's possession as against latter's vendees or creditors; (10 Eng. Rul. Cas. 
 533) on priority between equities in case of act or omission due to negligence or 
 misplaced confidence. 
 
 4 L. R. A. 395, LOVELAXD v. GARDXER, 79 Cal. 317, 21 Pac. 766. 
 IVegrligrent construction and maintenance of fence. 
 
 Cited in Winkler v. Carolina & X. W. R. Co. 126 X. C. 372, 78 Am. St. Rep. 
 663, 35 S. E. 621, holding injury to stock by reason of negligently constructed 
 barbed-wire fence actionable; Kuhnert v. Angell, 10 X. D. 63, 88 Am. St. Rep. 
 675, 84 X. W. 579, assuming, but not deciding, construction of barbed-wire fence 
 injuring horse was negligent and actionable. 
 
 Cited in footnotes to Quinn v. Crimmings, 42 L. R. A. 101, which denies land- 
 owner's liability for dangerous condition of part of division fence which adjoin- 
 ing owner has agreed to maintain; Quigley v. Clough, 45 L. R. A. 500. which 
 denies owner's liability for injury to person walking by mistake after dark against 
 barbed-wire fence on private premises; Beinhorn v. Griswold, 59 L. R. A. 771, 
 which denies liability of owner of unfenced land for death of trespassing animals 
 by drinking poisonous liquids used in his business. 
 
 Cited in notes (12 L.R.A. 602) on liability of owner for injuries by defective 
 fence; (14 Am. St. Rep. 436) on negligent maintenance of barbed-wire fence; 
 (54 Am. St. Rep. 514) on liability for injuries due to defects in partition fences. 
 
 Disapproved in Foster v. Swope, 41 Mo. App. 144, but holding killing of mule 
 on highway because of defendant's dangerous fence actionable. 
 
4 L.E.A. 395] L. R. A. CASES AS AUTHORITIES. 688 
 
 New trinl. 
 
 Cited in Davis v. Southern P. Co. 98 Cal. 18, 32 Pac. 646, upholding right of 
 trial court to deny motion for new trial on condition that plaintiff remit part of 
 verdict; Murray v. Heinze, 17 Mont. 364, 42 Pac. 1057, holding verdict of jury 
 in disregard of erroneous instruction is against law and will be set aside. 
 
 4 L. R. A. 396, McCANDLESS v. BELLE PLAINE CANNING CO. 78 Iowa, 161, 
 
 16 Am. St. Rep. 429, 42 N. W. 635. 
 Bills and notes; construction. 
 
 Cited in Dey v. Ramsdell, 90 Iowa, 732, 52 N. W. 208. and Lee v. Percival, 85 
 Iowa, 641, 52 N. W. 543, holding note signed by persons describing themselves a 
 president and secretary of corporation is individual obligation of signers. 
 
 Cited in footnotes to Miller v. Roach, 6 L. R. A. 71, which holds note with 
 "Treasurer" added to name and sealed with corporate seal, corporate obliga- 
 tion; Reeve v. First Nat. Bank, 16 L. R. A. 143, which holds note signed with 
 corporate name followed by signature of one as "Pres.", is note of corporation. 
 
 Cited in notes (19 L.R.A. 676) on personal liability of officers on note made for 
 corporation; (48 Am. St. Rep. 919) on personal liability of corporate officers to- 
 third persons; (4 Eng. Rul. Cas. 284, 285) on liability of one signing bill or note 
 as agent. 
 Parol evidence to show person intended to be bound. 
 
 Cited in Mathews v. Dubuque Mattress Co. 87 Iowa, 248, 19 L. R. A. 678, 54 
 N. W. 225, holding note signed "Dubuque Mattress Co., John Kapp. Pt.", imports 
 personal obligation of signer, and parol evidence is inadmissible to show contrary 
 intention; Wiera v. Treese, 27 Okla. 777, 117 Pac. 182, holding admissible parol 
 evidence to show that officers of corporation executed note with intention of 
 binding themselves personally. 
 
 Cited in notes (6 L.R.A. 40) on inadmissibility of parol evidence to show in- 
 tention of parties to contract; (20 L. R. A. 706) on admissibility of extrinsic 
 evidence to show liability as maker of note. 
 
 Distinguished in Hunt v. Listenberger, 14 Ind. App. 323, 42 X. E. 240, holding 
 indorsement of warrant with partnership name, and by one describing himself 
 as agent, binds the firm. 
 
 Disapproved in effect in Swarts v. Cohen, 11 Ind. App. 23, 38 N. E. 536, hold- 
 ing note signed by name of corporation, followed by one describing himself as 
 president, is ambiguous, and parol evidence is admissible to explain. 
 Mistake in signature to note reformed in equity. 
 
 Cited in Capital Sav. Bank & T. Co. v. Swan, 100 Iowa, 722, 69 N. W. 1065, 
 holding mistake of secretary and treasurer of corporation in signing note for 
 company to precede his signature with word "by," may be corrected in equity. 
 
 4 L. R. A. 398, KIMBALL v. GAFFORD, 78 Iowa, 65, 42 N. W. 583. 
 Receiver's right to property. 
 
 Cited in Gay v. Ray, 195 Mass. 17, 80 N. E. 693, holding if partnership prop- 
 erty insufficient to pay debts of firm receiver should turn over property and' 
 assets in his hands to trustee in bankruptcy subject to payment of his fees and 
 charges; Re New Glenwood Canning Co. 150 Iowa, 700, 130 X. W. 800, holding 
 that equitable lien is enforcible against property of corporation in hands of 
 receiver. 
 
 4 L. R. A. 401, PEDEN v. CHICAGO, R. I. & P. R. CO. 78 Iowa, 131, 42 N. W. 
 
 625. 
 Measure of dainag-es. 
 
 Cited in Willitts v. Chicago, B. & K. C. R. Co. 88 Iowa, 289, 21 L. R. A. 61 1^ 
 
689 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 40tt 
 
 55 X. W. 313, holding difference between value of land, including crops, before 
 and after flooding, proper measure of damages; Harvey v. Mason City & Ft. D. 
 R. Co. 129 Iowa, 480, 3 L.R.A. ( N.S. ) 980, 113 Am. St. Rep. 483, 105 N. W. 958, 
 holding damages for injury to lands by flooding found by ascertaining, deprecia- 
 tion in value; Hall v. Wabash R. Co. 141 Iowa, 253, 119 N. W. 927, holding in 
 ascertaining damages for taking right of way, damages to farm as whole are to 
 be estimated rather than some particular government subdivisions from which 
 right of way has been taken. 
 
 Cited in note (57 L. R. A. 944) on what lands are to be deemed part of the 
 tract damaged by taking a portion thereof under eminent domain. 
 Covenant in right of way. 
 
 Cited in footnote to Doty v. Chattanooga Union R. Co. 48 L. R. A. 1GO, which 
 holds covenant for running certain trains binding on subsequent purchaser of 
 railroad. 
 Admissions on previous trial. 
 
 Cited in McDermott v. Mahoney, 139 Iowa, 301, 115 N. W. 32, holding admis- 
 sions made for party appearing in record of one trial admissible on another 
 trial subject to explanation that they were made by mistake or without au- 
 thority. 
 Declarations of agents. 
 
 Cited in note (131 Am. St. Rep. 326) on declarations and acts of agents of 
 carriers. 
 
 4 L. R. A. 404. HATCH v. LAMOS, 65 N. H. 1, 17 Atl. 979. 
 Conditional sales. 
 
 Cited in Cutting v. Whittemore, 72 N. H. Ill, 54 Atl. 1098, upholding right 
 of conditional vendee in possession to mortgage his interest in the property; 
 Michelson v. Collins, 72 N. H. 554, 58 Atl. 50, holding that vendor may re- 
 cover unpaid-for goods from donee of conditional vendor; National Cash Register 
 Co. v. Wapples, 52 Wash. 660, 101 Pac. 227, holding rights of conditional vendee 
 before rescission transferable subject to rights of vendor. 
 
 4 L. R. A. 406, COHEN v. NEW YORK, 113 N. Y. 532, 10 Am. St. Rep. 506, 
 
 21 N. E. 700. 
 
 Affirmed on new trial in 128 N. Y. 595, 27 N. E. 1074. 
 Obstructions in and use of street or highway. 
 
 Followed in Frank v. Warsaw, 198 N. Y. 467, 31 L.R.A. (N.S.) 678, 92 N. E. 17, 
 holding peanut roaster in street, an unlawful obstruction. 
 
 Cited in Ladoga v. Linn, 9 Ind. App. 20, 36 N. E. 159, holding storage of dray 
 in public street for unreasonable time a nuisance; People ex rel. Thompson v. 
 Brookfield, 6 App. Div. 399, 39 N. Y. Supp. 673, holding hackman not per- 
 mitted to use portions of public streets for hack stand; Lawton v. Olmstead, 40 
 App. Div. 546, 58 N. Y. Supp. 36, holding piled logs in highway a nuisance ren- 
 dering owner liable for injury caused by them; Murphy v. Leggett, 29 App. Div. 
 312, 51 N. Y. Supp. 472, holding owner liable for injuries caused by permanent 
 platform in street; Bradford v. Self, 21 App. Div. 153, 47 N. Y. Supp. 508, 
 holding evidence tending to show length of time truck had been unlawfully left 
 in street admissible; Studeor v. Gouverneur, 15 App. Div. 230, 44 N. Y. Supp. 
 122, holding village not negligent in permitting vehicles to stand on street in 
 front of shops: Simis v. Brookfield, 13 Misc. 571. 34 N. Y. Supp. 695, dissolv- 
 ing injunction restraining removal of obstructions in street; Wells v. Brook- 
 lyn, 9 App. Div. 64, 41 N. Y. Supp. 143. Reversing 16 Misc. 315, 38 N. Y. Supp. 
 L.R.A. Au. Vol. I. 44. 
 
4 L.R.A. 406] L. R. A. CASES AS AUTHORITIES. 690 
 
 309, holding city liable for injuries caused by show case permanently fastened 
 to post in street without permission; Sullivan v. McManus, 19 App. Div. 168, 
 45 X. Y. Supp. 1079, holding livery-stable proprietors liable for injuries by col- 
 lision with wagon left in street; Brinkman v. Eisler, 40 X. Y. S. R. 866, 16 N. 
 Y. Supp. 154, holding recovery cannot be had for erection of unlawful awn- 
 ing over sidewalk; Murphy v. Suburban Rapid Transit Co. 40 N. Y. S. R. 229, 
 15 N. Y. Supp. 837, holding rapid-transit company liable for injuries due to 
 loose plank; Hoey v. Gilroy, 37 N. Y. S. R. 756, 14 N. Y. Supp. 159, holding 
 shed obstruction in city street cannot be validated by ordinance; Hyland v. 
 Burns, 10 App. Div. 386, 41 N. Y. Supp. 873, holding stone pile in street line 
 a nuisance; Howard v. Brooklyn, 30 App. Div. 221, 51 N. Y. Supp. 1058, holding 
 city not liable for injuries to traveler by bicycle on sidewalk because it failed 
 to pass ordinance forbidding such use; Delaware, L. & W. R. Co. v. Buffalo, 65 
 Hun, 468, 20 N. Y. Supp. 448, holding question whether bridge abutments 
 unnecessarily obstructed street not removed by consent of city; Delaware, L. 
 & W. R. Co. v. Buffalo, 4 App. Div. 567, 38 N. Y. Supp. 510, holding city may 
 remove obstruction of pier and embankment constituting foundation of bridge 
 over street; Stedman v. Rome, 88 Hun, 281, 34 N. Y. Supp. 737, holding city'* 
 negligence in maintaining bridge 7 inches above sidewalk is for jury; Costicb 
 v. Rochester, 68 App. Div. 630, 73 N. Y. Supp. 835, holding punitive damages 
 not recoverable for inundation by water course swelled by overflow sewer; Coa- 
 tello v. State, 108 Ala. 53, 35 L. R. A. 306, 18 So. 820, sustaining criminal 
 prosecutions for maintaining fruit and candy stands on sidewalk of public 
 street; Pennsylvania Coal Co. v. Chicago, 181 111. 309, 53 L. R. A. 230, 54 N. E. 
 825 (dissenting opinion), majority holding that railway companies not en- 
 titled to injunction restraining hack stand permitted by city at station; Scan- 
 Ion v. Wedger, 156 Mass. 466, 16 L. R. A. 395, 31 N. E. 642 (dissenting 
 opinion), majority holding that voluntary spectator injured by unauthorized 
 display of fireworks in highway cannot recover; Kalteyer v. Sullivan, 18 Tex. 
 Civ. App. 494, 46 S. W. 288, holding injunction will lie in favor of abutting 
 owner to restrain the closing of public alley; Fifield v. Phoenix, 4 Ariz. 288, 24 L. 
 R. A. 432, 36 Pac. 916, holding city not liable for injuries by explosion of fire- 
 works in public street permitted by public officer; Ladoga v. Linn, 9 Ind. App. 
 17, 36 N. E. 159, holding verdict of jury that horse took fright at dray left 
 standing in public street sustained by evidence; Farley v. New York, 152 X. 
 Y. 225, 57 Am. St. Rep. 511, 46 N. E. 506, holding knowledge by policeman of 
 storage of truck on public street for several months imputable to city; People 
 x rel. Van Xorder v. Sewer, Water & Street Commission, 90 App. Div. 557, 
 86 N. Y. Supp. 445, denying hackman's riglit to carry on business in streets of 
 village without license; Donovan v. Pennsylvania Co. 61 L. R. A. 144, 57 C. C. A. 
 366, 120 Fed. 219, upholding right of railway company to enjoin hackmen from 
 congregating upon sidewalk and around doors of station; Pettit v. Grand Junc- 
 tion, 119 Iowa, 358, 93 X. W. 381, upholding action against municipality for 
 damages and abatement of nuisance for erection of public buildings in dedi- 
 cated street; Richmond v. Smith, 101 Va. 168, 43 S. E. 345, holding temporary 
 carnival platform erected in street nuisance per se; Longnecker v. Wichita R. 
 & Light Co. 80 Kan. 422, 102 Pac. 492, holding individual has no right to keep 
 horses lodged in street nor to use street as addition to barn for storing vehicles: 
 Bevis v. Vanceburg Teleph. Co. 121 Ky. 185, 89 S. W. 126, holding telephom 
 company without right to erect poles so as to interfere with or render danger- 
 ous use of highway by public for travel; Com. v. Morrison, 197 Mass. 205, 14 
 L.R.A.(X.S.) 197, 125 Am. St. Rep. 338, 83 X. E. 415, holding one keeping lunch 
 
691 L- R. A. CASES AS AUTHORITIES. [4 L.R.A. 406 
 
 wagon in street at night not protected by municipal ordinance from prosecu- 
 tion for obstruction to travel on public way; United Restaurant & Realty Co. 
 v. Schulte, 67 Misc. 635, 124 N. Y. Supp. 835, holding owner or tenant of prem- 
 ises abutting on street cannot use street space for his own private gain, hence 
 lessee of store in hotel building cannot complain if lessor grants exclusive 
 privilege of maintaining cab stand in front of hotel; Landau v. New York, 180 
 N. Y. 54, 105 Am. St. Rep. 709, V2 N. E. 631, holding city liable for explosion of 
 fire works on public street where board of aldermen grants permission to discharge 
 them; Godfrey v. New York, 104 App. Div. 365, 93 N. Y. Supp. 899, holding city 
 jointly liable with contractor for injury resulting from failure to properly guard 
 paving material which city gave contractor permission to place in roadway; 
 Johnson v. New York, 309 App. Div. 829, 96 N. Y. Supp. 754, holding city liable 
 for consequences of unauthorized act of board of alderman in permitting automo- 
 bile speed trials on highway; De Agramonte v. Mt. Vernon, 112 App. Div. 294, 
 98 N. Y. Supp. 454, holding a municipality not liable for negligence of one it has 
 licensed to give a fire works display in a city park; Parks v. New York, 111 
 App. Div. 840, 98 N. Y. Supp. 94, holding city liable for negligence of abutting 
 landowner in erecting bridge over excavation in sidewalk which city permitted 
 landowner to make; Sweet v. Perkins, 315 App. Div. 788, 101 N. Y. Supp. 163 
 <dissenting opinion), as to what is lawful use of highway by adjacent propri- 
 etor; Frank v. Warsaw, 116 App. Div. 625, 101 N. Y. Supp. 938 (dissenting 
 opinion), on liability of municipality for injury in consequence of unlawful use 
 of or obstruction in street; Mansfield v. Xew York, 119 App. Div. 201, 104 N. Y. 
 Supp. 386, holding wooden awning extending over sidewalk and supported by 
 posts in sidewalk nuisance, and city liable for injury to person caused by truck 
 striking post and causing awning to fall; Warden v. New York, 123 App. Div. 
 737, 108 N. Y. Supp. 305, holding that placing of contractor's tool box on side- 
 walk is public nuisance, and that it is no answer to charge of nuisance that 
 even with obstruction in highway there is room for pedestrians, nor that obstruc- 
 tion is not fixture; "Tolkon v. Reimer Co. 125 App. Div. 696, 110 N. Y. Supp. 
 129, holding obstruction of street for purpose of vending wares constitutes un- 
 lawful encroachment thereon; Radichel v. Kendall, 121 Wis. 563, 99 N. W. 348, 
 holding street may be rendered unsafe for public use so as to charge municipality 
 with consequences by long continued use thereof for purpose of storing vehicles 
 or other objects therein. 
 
 Cited in footnotes to Copland v. Seattle, 65 L.R.A. 333, which denies liability 
 of city for death of one killed by fall of material from building in process of 
 construction under permit from city; Temby v. Ishpeming, 69 L.R.A. 618, which 
 denies liability of city for injuries to traveler by fall of billboard insecurely 
 fastened by abutting owner. 
 
 Cited in notes (39 L. R. A. 650, 653, 678) on municipal power over nuisances 
 affecting highways and waters; (36 L. R. A. 610) on power of municipal corpo- 
 rations to define, prevent, and abate nuisances; 8 L. R. A. 829; 14 L. R. A. 557) 
 on obstruction of street or sidewalk for business or building purposes; (10 L. R. 
 A. 474) on liability of municipality for permitting street obstruction; (15 Am. 
 St. Rep. 845, 847; 19 L.R.A.(N.S.) 508; 20 L.R.A.(N.S.) 612, 737) on liability of 
 municipality for defects or obstructions in streets; (25 L.R.A.(N.S-) 401, 404) 
 on power of municipality to grant or lease space on street or sidewalk; (32 
 L.R.A. (N.S.) 896) on liability of municipality licensing obstructions; (16 Am. 
 St. Rep. 209) on obstruction of street or highway; (125 Am. St. Rep. 350) on 
 grant by city of right to use streets and sidewalks for private purpose. 
 
 Distinguished in Robert v. Powell, 24 Misc. 243, 52 X. Y. Supp. 918, holding 
 
4 L.R.A. 406] L. R. A. CASES AS AUTHORITIES. 692 
 
 carriage stone on edge of street not a common nuisance for maintenance of 
 which owner liable for injuries; Lechner v. Newark, 19 Misc. 456, 44 N. Y. Supp. 
 556, holding village not liable for injury in bicycle collision on sidewalk because 
 of ordinance relating to its use by bicycles; Toomey v. Albany, 38 N. Y. S. IL 
 92, 14 N. Y. Supp. 572, holding allegation did not disclose that city was lia- 
 ble for injuries to one run into by coasting party; Fifield v. Phoenix, 4 Ariz. 288 r 
 24 L.R.A. 430, 36 Pac. 9] 6, where case was not upon theory city was guilty of 
 maintaining nuisance; Buckley v. New York, 135 App. Div. 514, 120 N. Y. jBupp^ 
 423, holding excavation in street for purpose of repairing break in sewer not 
 nuisance per se in which city by authorizing or permitting it, becomes partner; 
 Collender v. Reardon, 138 App. Div. 745, 12.3 X. Y. Supp. 587, holding that pres- 
 ence in street of licensed push cart peddler is not contributory negligence per se. 
 What is proximate online of injury. 
 
 Cited in Murphy v. Leggett, 164 N. Y. 127, 58 N. E. 42, holding condition of 
 platform and steps in street proximate cause of injury; Mars v. Delaware & H. 
 Canal Co. 54 Hun, 630, 8 N. Y. Supp. 107, holding railway not liable for in- 
 jury caused by engine maliciously moved from siding onto main track; Postal 
 Teleg. Cable Co. v. Zopfi, 93 Tenn. 375, 24 S. W. 633, holding telegraph pole 
 left in street near platform upon which child fell proximate cause of injury; 
 McFarlane v. Sullivan, 99 Wis. 363, 74 N. W. 559, holding proximate cause of 
 injury was not stone in highway, but breaking of line by which horse was driv- 
 en; Leeds v. New York Teleph. Co. 64 App. Div. 488, 72 N. Y. Supp. 250, hold- 
 ing striking of wire passed around ancient chimney from which brick fell 
 concurrent negligence; Leeds v. New York Teleph. Co. 178 N. Y. 124, 70 N. E. 
 219, Reversing 79 App. Div. 124, 80 N. Y. Supp. 114, holding telephone com- 
 pany not liable for injury due to derrick striking wire attached to chimney, 
 causing latter to fall; Williams v. San Francisco & N. W. R. Co. 6 Cal. App. 725, 
 93 Pac. 122, holding railroad company liable for causing death of person, whose 
 horse, frightened by train, ran away, buggy colliding with wood pile placed in 
 highway by company and deceased being thrown to ground; Wheeler v. Ft. 
 Dodge, 131 Iowa, 581, 9 L.R.A. (X.S.) 153, 108 N. W. 1057, holding whether allow- 
 ing wire in street upon which performer made "slide for life" was proximate 
 cause of plaintiff's injury by being struck by performer whose harness gave way 
 causing performer to fall, question for jury; Frank v. Warsaw, 198 N. Y. 468, 
 31 L.R.A.(N.S.) 676, 92 N. E. 17, holding presence of steam peanut roaster and 
 popcorn heater in street proximate cause of plaintiff's injury by explosion of 
 boiler thereof; Kurlauchick v. Sklamberg, 56 Misc. 476, 107 N. Y. Supp. 117, 
 holding use of sidewalk amounting to nuisance by reason of which injury results, 
 constitutes proximate cause of injury; Frank v. Warsaw. 116 App. Div. 631, 101 
 N. Y. Supp. 947 (dissenting opinion), as to when injuries are within rule of 
 proximate cause. 
 
 Distinguished in Van Cleef v. Chicago, 240 111. 326, 23 L.R.A. (N.S.) 643, 130 
 Am. St. Rep. 275, 88 N. E. 815, Affirming 144 111. App. 494, holding negligence 
 in construction of steps to street show was proximate cause of one hurt by being 
 crowded off; Stafford v. Canavan Bros. Co. 135 App. Div. 891, 120 N. Y. Supp. 
 314, holding leaving of root of tree near to cable of engine used in drawing ex- 
 cavated material up out of excavation was not proximate cause of killing of 
 worker in cut by root being caught by cable and thrown upon him. 
 Vltrn vires acts. 
 
 cited in Lancaster v. Reisner, 14 Lane. L. Rev. 196, holding city cannot sell 
 right to use public street for hack stand; Delaware, L. & W. R. Co. v. Buffalo, 
 158 N. Y. 273, 53 N. E. 44, holding city has no power to surrender half of 
 street to use of railroad for street crossing; Odell v. Bretney, 38 Misc. 605. 78". 
 
693 L. E. A. CASES AS AUTHORITIES. [4 L.R.A. 409 
 
 X. Y. Supp. 67, holding city cannot license special hack stands in front of 
 liotel with consent of proprietors; Speir v. Brooklyn, 139 N. Y. 13, 21 L. R. A. 
 645, 36 Am. St. Rep. 664, 34 N. E. 727, Affirming 45 N. Y. S. R. 264, 18 X. V. 
 Supp. 170, and 46 X. Y. S. R. 562, 19 N. Y. Supp. 665, holding city liable for 
 injuries resulting from explosion of fireworks under permit from mayor; Utica 
 v. Utica Teleph. Co. 24 App. Div. 367, 48 N. Y. Supp. 916, holding city can 
 restrain telephone company from erecting poles; Mahon v. New York, 10 Misc. 
 666, 31 N. Y. Supp. 676, holding interference by park commissioners with car- 
 rying out contract with city authorized abandonment of contract. 
 
 Cited in notes (30 Am. St. Rep. 406), on liability of cities for ultra vires acts of 
 officers and agents; (34 Am. St. Rep. 27) on municipal liability for torts not 
 sanctioned by charter. 
 Joint and several liability of joint tort-feasors. 
 
 Cited in Demarest v. Forty-second Street, M. & St. X. Ave. R. Co. 104 App. 
 Div. 505, 93 X. Y. Supp. 663, holding allegation that injury was due solely 
 to defendent's negligence would not defeat recovery against defendant, though 
 negligence of another contributed to injury. 
 
 4 L. R. A. 409, MIXTY v. UNIOX P. R. CO. 2 Idaho, 471, 21 Pac. 660. 
 Master's duty to employees. 
 
 Cited in footnotes to Smith v. Erie R. Co. 59 L. R. A. 302, which holds com- 
 pany bound, as to employees riding on trains, to exercise reasonable care to 
 maintain safe track and roadbed; Duntley v. Inman, P. & Co. 59 L. R. A. 785, 
 which denies liability for failure to furnish better belt shifter if one furnished 
 under proper use. 
 Presumption of negligence. 
 
 Cited in Xational Biscuit Co. v. Wilson, 169 Ind. 447, 82 N. E. 916, holding 
 that when employee is injured while operating freight elevator, mere happening 
 of accident raises no presumption and cannot serve as proof of master's negli- 
 gence; Xewhouse v. Kanawha & W. V. R. Co. 62 W. Va. 564, 59 S. E. 1071, 
 holding suspension of wire cables across track of railroad so low as to obstruct 
 track and passage of train, constitutes negligence per se. 
 
 Cited in footnote to Duntley v. Inman, P. & Co. 59 L. R. A. 785, which holds 
 want of care not shown by breaking of piece of machinery causing servant's 
 death. 
 
 Cited in note ( 113 Am. St. Rep. 1007 ) on presumption of negligence from hap- 
 pening of accident causing personal injuries. 
 Servant's notice of defects. 
 
 Cited in Cleveland, C. C. & St. L. R. Co. v. Parker, 154 Ind. 155, 56 N. E. 
 86, holding complaint against railroad tor injury to employee from negligent 
 construction of sidetrack must allege employee was without notice of defect. 
 FellOTT servants. 
 
 Cited in note ( 5 L. R. A. 735 ) on who are fellow servants. 
 Assumption of risk. 
 
 Cited in Zienke v. Northern P. R. Co. 8 Idaho, 65, 66 Pac. 828, on assumption 
 of risk; Goure v. Storey, 17 Idaho, 363, 105 Pac. 794, holding laborer who, while 
 using wheelbarrow to transport building stone in building, was struck by handles 
 thereof when it tipped and thrown down stairway shaft and injured assumed 
 risk of such accident. 
 
 Cited in note (4 L.R.A. (X.S.) 849) on servant's assumption of obvious risks 
 arising from master's negligence. 
 
4 L.R.A. 409] L. R. A. CASES AS AUTHORITIES. 694 
 
 Burden of proof of contributory ueg-ligeuce. 
 
 Cited in Haner v. Northern P. R. Co. 7 Idaho, 309, 62 Pac. 1028, holding it 
 error to instruct that burden of proof was on defendant to establish contributory 
 negligence on part of plaintiff. 
 
 Disapproved in effect in Adams v. Bunker Hill & S. Min. Co. 12 Idaho, 645, 
 11 L.R.A.(N.S-) 850, 89 Pac. 624, denying arguendo that burden of proof is on. 
 plaintiff to show absence of contributory negligence on his part. 
 
 4 L. R. A. 413, RICHMOND v. MISSISSIPPI MILLS, 52 Ark. 30, 11 S. W. 960. 
 "When conveyance construed us assignment for benefit of creditors. 
 
 Cited in Appolos v. Brady, 1 C. C. A. 301, 44 U. S. App. 209, 49 Fed. 403; 
 Fecheimer v. Robertson, 53 Ark. 106, 13 S. W. 423; Robson v. Tomlinson, 54 
 Ark. 234, 15 S. W. 456; Wood v. Adler-Goldman Commission Co. 59 Ark. 275 r 
 27 S. W. 490; Adler-Goldman Commission Co. v. Phillips, 63 Ark. 52, 37 S. W. 
 297, Westchester F. Ins. Co. v. Blackford, 2 Ind. Terr. 375, 51 S. W. 978; Apollos 
 v. Staniforth, 3 Tex. Civ. App. 506, 22 S. W. 1060, holding test is whether 
 intention of parties to devest debtor of title, and make appropriation of prop- 
 erty to raise fund to pay debts; Westchester F. Ins. Co. v. Blackford, 2 Ind^ 
 Terr. 373, 51 S. W. 978, holding assignment contemplates intervention and agency 
 of trustee, though none be named in deed; Fecheimer v. Robertson, 53 Ark. 
 104, 105, 13 S. W. 423, holding test whether successive mortgages con- 
 stitute assignment is whether they are impressed with trust char- 
 acter, so other creditors can call grantee to account for proceeds; 
 Box v. Goodbar, 54 Ark. 8, 14 S. W. 925, construing absolute conveyance to 
 raise fund to pay debts, grantee being named as trustee, is assignment, and 
 void as not executed according to law; Marshall v. Livingston Nat. Bank, 11 
 Mont. 363, 28 Pac. 312, holding chattel mortgage with power of immediate sale, 
 and providing for payment of surplus, after satisfaction of debt secured, to 
 mortgagor, is assignment; Cribb v. Hibbard, S. B. & Co. 77 Wis. 205, 46 N. W. 
 168, holding successive chattel mortgages not covering all of debtor's property, 
 and without collusion between mortgagees, not assignment; Byrd v. Perry, 7 
 Tex. Civ. App. 388, 26 S. W. 749, holding mortgage reserving to grantors any 
 surplus remaining after payment of debt secured, and not conveying all of 
 debtor's property, not assignment; Grimes Dry Goods Co. v. Malcolm, 164 U. 
 S. 487, 41 L. ed. 525, 17 Sup. Ct. Rep. 158; Raimvater-Boogher Hat Co. v. 
 Malcolm, 2 C. C. A. 479, 10 U. S. App. 249, 51 Fed. 737, holding conveyance 
 to be void if grantor pays certain debts within sixty clays, otherwise grantee 
 to sell, and apply proceeds to payment of debts in order named, not assignment ; 
 Smead v. Chandler, 71 Ark. 515, 76 S. W. 1066. holding deed of trust to. 
 secure debt, to be void upon payment of debt, a mortgage; Tapp v. Williams. 83 
 Ark. 185, 103 S. W. 161, holding instrument executed by debtors with intention, 
 to transfer property to trustee for purpose of raising fund to pay their debts is 
 assignment for benefit of creditors; Brecht v. Law Union & Crown Ins. Co. 153 
 Fed. 456, on distinction between mortgage and assignment for benefit of cred- 
 itors. 
 
 Cited in note (10 L. R. A. 709) on what conveyances operate as assignment 
 for creditors. 
 
 Distinguished in Hershiser v. Higman, 31 Neb. 539, 28 Am. St. Rep. 527, 48 
 N. W. 272, holding several chattel mortgages, having priority in order given, to 
 secure bona fide criditors, not assignment; Blass v. Goodbar, 65 Ark. 519, 520, 
 47 S. W. 630, holding pledge of stock of goods as security for debt, not assign- 
 ment, when creditor not to act as trustee; Smith v. Moore, 2 Ind. Terr. 132, 48 
 S. W. 1025, holding mortgage by failing debtor of all his property to four 
 
G95 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 420 
 
 creditors, and reserving surplus after payment of indebtedness, not assignment; 
 Marquese v. Felsenthal, 58 Ark. 296, 24 S. W. 493, holding mortgage of entire 
 stock of goods not construed as assignment because debt payable on demand,, 
 and grantor unable to continue business; Smith v. Empire Lumber Co. 57 Ark. 
 226, 21 S. W. 225, construing instrument in form of mortgage, conveying nearly 
 all of insolvent debtor's property, to be mortgage in fact, where evidence 
 showed such was intention of parties. 
 Embracing other instrument. 
 
 Cited in Daugherty v. Bogy, 3 Ind. Terr. 219, 53 S. W. 542, holding mortgage 
 and contract made in transaction between debtor and creditor constituted one 
 transaction fraudulent as operating to hinder, delay and defraud another cred- 
 itor. 
 Evidence to vary effect of conveyance. 
 
 Cited in Apollos v. Staniforth, 3 Tex. Civ. App. 506, 22 S. W. 1060, and Box 
 v. Goodbar, 54 Ark. 8, 14 S. W. 925, holding deed absolute in form .may be 
 shown to have been intended as a mortgage, or that one conditional in form 
 was intended to be absolute. 
 General assignment with preferences. 
 
 Cited in note (37 L. R. A. 338) on whether preference by mortgage or sale ia 
 assignment. 
 
 Distinguished in Worthen v. Griffith, 59 Ark. 572, 43 Am. St. Rep. 50, 28 S. 
 W. 286, holding confession of judgment in contemplation of general assignment 
 does not affect validity. 
 
 4 L. R. A. 420, DOYLE v. CHICAGO, ST. P. & K. C. R. CO. 77 Iowa, 607, 42" 
 
 N. W. 555. 
 Liability of master for negligence of employees. 
 
 Cited in Keatley v. Illinois C. R. Co. 103 Iowa, 289, 72 N. W. 545, holding 
 railroad liable for injury from omission of foreman of iron gang, having con- 
 trol of speed of train across bridge, to signal engineer to slow up, if condition 
 of bridge required it. 
 
 Cited in footnote to Pennsylvania R. Co. v. Martin, 55 L. R. A. 361, which, 
 denies duty of railroad company to use care to avoid injury to one using track 
 for own affairs. 
 
 Cited in note (8 L. R. A. 464) on liability of master for injuries from negli- 
 gence of servant. 
 Unanticipated resnlts of negligent acts. 
 
 Cited in Texas & P. R. Co. v. Carlin, 60 L. R. A. 465, 49 C. C. A. 610, 111 Fed. 
 781, holding if negligent act likely to result in familiar injury, fact that result 
 produced was peculiar and unanticipated will not relieve from liability; Scagel 
 v. Chicago, M. & St. P. R. Co. 83 Iowa, 388, 49 N. W. 990, holding party liable 
 for results produced by natural causes, although unexpected and unusual, if 
 they could have been prevented by ordinary diligence; Osborne v- Van Dyke r 
 113 Iowa, 559, 54 L. R. A. 368, 85 N. W. 784, holding party liable for injurjr 
 to bystander from blow aimed at horse, if striking horse was negligent under ex- 
 isting circumstances, although result not anticipated; Terre Hante & I. R. Co. 
 v. Fowler, 154 Ind. 691, 48 L. R. A. 534, 56 N. E. 228, holding railroad in 
 constructing trestle required to provide against such dangers as can rea- 
 sonably be foreseen; Goe v. Northern P. R. Co. 30 Wash. G58, 71 Pac. 182,. 
 holding master's negligence question for jury, where laborer fell from unsafe 
 boom striking lever of engine which started machinery by which he was hurt; 
 Memphis Consol. Gas & Electric Co. v. Creighton, 106 C. C. A. 98, 183 Fed. 556,. 
 
4 L.R.A. 420] L. R. A. CASES AS AUTHORITIES. 696 
 
 holding gas company liable to roomer injure 1 } by explosion of gas escaping from 
 defective pipe; Williamson Iron Co. v. McQueen, 144 Ala. 276, 40 So. 306, holding 
 in action to recover damages for death of person by being burned by molten 
 matter which issued from furnace which gave way, that because negligence in 
 allowing furnace to be loaded with improper material produced effect never 
 before observed was not- reason for saying servant was in exercise of due care; 
 St. Louis, I. M. & S. R. Co. v. Jackson, 96 Ark. 474, 31 L.R.A.(X.S.) 986, 132 
 S. W. 206, holding railroad liable for injury to boy on platform from his being 
 -crushed by swinging car door on passing train; Waiters v. Waterloo, 126 Iowa. 
 204, 101 N. W. 871, holding where plaintiff, who was subject to dizziness by 
 reason of previous fall on sidewalk, fell upon sidewalk again in following month 
 that cause of second fall was icy condition of walk; Burk v. Creamery Package 
 Mfg. Co. 126 Iowa, 734, 106 Am. St. Rep. 377, 102 N. W. 793, holding test is, 
 whether ordinary prudence would have suggested to person sought to be charged 
 with negligence that his act or omission would probably result in injury to 
 someone; Dean v. Kansas City, St. L. & C. R. Co. 199 Mo. 411, 97 S. W. 910, 
 holding railroad company liable to section hand struck upon knee and injured 
 by piece of coal hurled from tender of locomotive of passing train. 
 
 Cited in footnotes to Texas & P. R. Co. v. Carlin. 00 L. R. A. 462, which sus- 
 tains liability for negligence likely to produce injury, though particular injury 
 not anticipated; Osborne v. Van Dyke, 54 L. R. A. 367, which holds one unlaw- 
 fully beating liable for injury by unintentional blow on bystander; West Vir- 
 ginia C. & P. R. Co. v. State, 61 L. R. A. 574. which holds railroad liable for 
 injury to bystander by car broken loose from train, and thrown from right of 
 way by collision with another car at foot of decline. 
 
 Cited in notes (8 L. R. A. 82) on liability fo- injuries produced by negli- 
 gence; (4 L. R. A. 852) on duty of master to inform servant of extraordinary 
 risks. 
 
 Distinguished in Cleveland, C. C. & St. L. R. Co. v. Berry, 152 Ind. 619, 46 
 L. R. A. 57, 53 N. E. 415, holding evidence insufficient to show iron pin thrown 
 by tender of rapidly moving train was in position from which it might reason- 
 ably be anticipated it would be so thrown; Reilly v. Chicago & N. W. R. Co. 
 122 Iowa, 527, 98 N. W. 464, holding railway company not liable for injury by 
 train to employee of independent contractor, due to negligence of latter. 
 Fellow servants. 
 
 Cited in footnote to Gulf, C. & S. F. R. Co. v. Blolm, 4 L. R. A. 764, which 
 holds locomotive engineer and fireman fellow servants. 
 Hazards of railway operation. 
 
 Cited in Dunn v. Chicago R. I. & P. R. Co. 130 Iowa, 593, 6 L.R.A. (N.S.) 458, 
 107 N. W. 616, 8 A. & E. Ann. Cas. 226 (dissenting opinion) on peculiar hazards 
 of railway operation to which employee exposed. 
 .\<-u-i iu-e-:i'- as question for jndgre or jury. 
 
 Cited in Hill v. Atchison, T. & S. F. R. Co. 81 Kan. 385, L.R.A.(N.S.) , 
 ]05 Pac. 447 (dissenting opinion) on trespass by judge on functions of jury in 
 negligence case. 
 Presumption of negligence. 
 
 Cited in note (113 Am. St. Rep. 1006) on presumption of negligence from hap- 
 pening of accident causing personal injuries as between master and servant. 
 
 4 L. R. A. 422, FREEMAN v. CITIZENS NAT. BANK, 78 Iowa, 150, 42 N. 
 
 W. 632. 
 Rights against bank of collection. 
 
 Cited in Lnited States Nat. Bank v. Westervelt, 55 Neb. 429, 75 N. W. 857. 
 
697 L. B. A. CASES AS AUTHORITIES. [4 L.R.A. 429 
 
 holding bad faith not shown by taking security for its own claim, where bank 
 performs duty as mere collecting agent and neither conceals nor misrepresents 
 facts to principal. 
 
 Cited in footnotes to Armstrong v. Boyertown Nat. Bank, 9 L. R. A. 553, which 
 denies right of receiver or creditors of bank crediting owner with draft re- 
 ceived for collection to demand proceeds from collecting bank; Corn Exch. Bank 
 v. Farmers Nat. Bank, 7 L. R. A. 559, which holds only first of several banks re- 
 ceiving check for collection, agent of payee; Pickle v. People's Nat. Bank, 7 L. R. 
 A. 93, which holds acceptance of check necessary to give right of action against 
 bank; Garrison v. Union Trust Co. 70 L.R.A. 615, which holds rule that bank 
 making collection is entitled to lien on proceeds to balance account with corre- 
 spondent as against title of original transmitting bank not changed by fact 
 that bank to which draft was sent by correspondent for collection was insolvent 
 when receiving notice of collection from third bank to which draft was forwarded 
 for collection and credit. 
 
 Cited in notes (7 L.R.A. 858; 77 Am. St. Rep. 615, 628) on duties, rights, obli- 
 gations, and liabilities of bank for collection; (7 L.R.A. 845) on ownership of 
 paper indorsed in blank. 
 
 Distinguished in Bern v. Kellogg, 54 Neb. 564, 74 N. W. 844, holding failure to 
 collect draft during more than fortnight, without communication to payee, fol- 
 lowed by taking conveyance of drawee's property in satisfaction of bank's debts, 
 bad faith in addition to negligence. 
 
 4 L. R. A. 425, CLEMENT v. NATIONAL BANK, 61 Vt. 298, 17 Atl. 717. 
 \Vlint governs description of land. 
 
 Cited in Graves v. Mattison, 67 Vt. 634, 32 Atl. 498, holding distance must 
 yield to fixed boundary of building; Chapman v. Longworth, 71 Vt. 230, 44 Atl. 
 o,")2, holding description in former deed will be read into deed which refers to it 
 for description. 
 Covenants in deeds. 
 
 Cited in Curtis v. Brannon, 98 Tenn. 157, 38 S. W. 1073, holding covenant of 
 seizin broken at instant it is made, 
 
 Cited in footnote to Hodges v. Wilkinson, 17 L. R. A. 545, which holds action 
 for breach of implied warranty of title of personalty sold, after its taking by 
 third person, not premature. 
 
 Cited in note (6 L. R. A. 107) on covenants definite and construed. 
 
 4 L. R. A. 429, BROOKS v. FISCHER, 79 Cal. 173, 21 Pac. 652. 
 Constitutional law. 
 
 Cited in Davies v. Los Angeles, 86 Cal. 41, 24 Pac. 771, holding charters framed 
 or adopted under Constitution subject to general laws; People ex rel. Graves v. 
 McFadden, 81 Cal. 500, 15 Am. St. Rep. 66, 22 Pac. 851, holding that constitu- 
 tionality of special provisions not affecting whole act will not be passed on 
 where question relates to validity of whole. 
 
 Distinguished in Mullan v. State, 114 Cal. 586, 34 L. R. A. 264, 46 Pac. 670, 
 holding employment of attorney to represent state in special matter not au- 
 thorized by concurrent resolution of legislature confirming appointment by gov- 
 ernor; People v. Gunn, 85 Cal. 244, 24 Pac. 718, holding municipality must bfr 
 made party to proceeding to test validity of its charter ; People v. Toal, 85 Cal. 
 334, 24 Pac. 603, holding inferior courts must be established by legislature by 
 laws passed and approved in constitutional method; Security Sav. Bank & T. Co. 
 v. Hinton, 97 Cal. 217, 32 Pac. 3, holding power of taxation necessarily implied 
 in authorization of freeholder's municipal charters by legislature, where consti- 
 
4 L.R.A. 429] L. R. A. CASES AS AUTHORITIES. 698 
 
 tution prohibits legislature from taxing municipal corporations for municipal 
 purposes; Mullan v. State, 114 Cal. 586, 34 L.R.A. 264, 46 Pac. 670, holding that 
 legislature cannot enact laws in any other mode than by bill. 
 
 Distinguished in Milner v. Reibenstein, 85 Cal. 594, 24 Pac. 935, denying right 
 of city justice of the peace to draw additional salary as ex officio judge of munici- 
 pal court. 
 Membership of legislative departments. 
 
 Cited in McDonald v. Dodge, 97 Cal. 114, 31 Pac. 909, holding mayor not part 
 t>f legislative department of city; Harrison v. Roberts, 145 Cal. 180, 78 Pac. 5^7; 
 holding mayor not part of legislative department of city and county. 
 
 4 L. R. A. 432, NEW YORK, L. E. & W. R. CO. v. EXCHES, 127 Pa. 316, 14 
 
 Am. St. Rep. 848, 17 Atl. 991. 
 Boarding moving cars. 
 
 Cited in Eikenberry v. St. Louis Transit Co. 103 Mo. App. 451, 86 S. W. 360, 
 holding boarding of moving street car not to be negligence per se. 
 
 Cited in note (17 Am. St. Rep. 429) on contributory negligence in alighting 
 from moving train. 
 Liability for injuries to passengers. 
 
 Cited in Bertram v. Peoples R. Co. 154 Mo. 666, 55 S. W. 1040 (dissenting 
 opinion), majority holding sustaining judgment that passenger was injured by 
 being jerked beyond side of street car in starting it. 
 
 Cited in notes (21 L. R. A. 359) on injuries in getting on and off railroad 
 trains; (8 L. R. A. 674) on contributory negligence of passenger. 
 Instructions to Jury. 
 
 Cited in Neff v. Harrisburg Traction Co. 192 Pa. 505, 44 W. N. C. 404, 73 Am. 
 "St. Rep. 825, 43 Atl. 1020, holding jury should be instructed that passenger 
 alighting from moving car cannot recover; Ranck v. Brackbill, 21 Lane. L. Rev. 
 108, holding that court should instruct jury as to legal effect that should be 
 given to evidence; Mahler v. Hartman, 27 Lane. L. Rev. 317, holding that court 
 Tnust instruct jury as to effect of contributory negligence on plaintiff's right 
 to recover. 
 
 4 L. R. A. 434, ORTHWEIN v. THOMAS, 127 111. 554, 11 Am. St. Rep. 159, 
 
 21 N. E. 430. 
 
 Report of later appeal in Brooklyn v. Orthwein, 140 111. 623, 31 N. E. 111. 
 Xstoppel By recitals in deed. 
 
 Cited in Guilfoil v. Arthur, 158 111. 607, 41 1ST. E. 1009, holding trustee estopped 
 by recitals of deed under which he enters into possession, and cannot claim ad- 
 versely to title; Smith v. Young, 160 111. 174, 43 X. E. 486, holding deed describ- 
 ing lot conveyed with reference to certain plat estops grantor and grantee to 
 deny existence of easement in alley designated on plat; Despain v. Wagner, 163 
 111. 600, 45 N. E. 129, holding grantor's description of grantee in deed as her 
 husband, estops subsequent grantees from denying parties were husband and 
 wife; Chloupek v. Perotka, 89 Wis. 556, 46 Am. St. Rep. 858, 62 N. W. 537, 
 holding grantee in deed correcting prior deed estopped^ as against grantor, from 
 claiming title under first deed to land not described in second; Xewton v. Xewton, 
 52 App. Div. 99, 64 N. Y. Supp. 981, questioning whether grantee accepting deed 
 expressly excepting certain property described in previous conveyance, estopped to 
 claim title to excepted premises; McXaughton v. Burke, 63 Xeb. 707, 89 X. W. 
 274, denying right of grantee subject to mortgage to deny validity of mortgage 
 
699 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 434 
 
 while claiming tinder deed; Trustees of Schools v. Wilson, 215 111. 356, 74 N. E. 
 375, holding claimants of title by connected chain of title from maker of mort- 
 gage warranted in relying on rentals in mortgage that mortgagor had good title, 
 where mortgagees accepted such mortgage; Langley v. Kesler, 57 Or. 288, 110 
 Pac. 401, holding that claimants under husband's will are not estopped by deed 
 to husband and wife reciting that it was made to correct prior deed to husband. 
 
 Cited in notes (13 Am. St. Rep. 590) on estoppel by recitals in- bonds; (11 Eng. 
 Rul. Cas. 72) on extent of estoppel by deed. 
 
 Distinguished in Wellman v. Miner, 179 111. 338, 53 N. E. 609, holding release 
 of mortgage not deed, and hence recitals that residue of property is held as se- 
 curity for unpaid part of debt not acknowledgment of debt, which would toll 
 statute of limitations; Cobb v. Oldfield, 151 111. 541, 42 Am. St. Rep. 263, 38 
 N. E. 142, holding claimant to title in possession who purchases outstanding 
 claim of title may show grantor had no title. 
 By record. 
 
 Cited in notes (11 L. R. A. 310) on judgment against executor not conclusive 
 on heirs; (7 L.R.A. 581) on res judicata; (12 Am. St. Rep. 200) on res judicata; 
 (29 Am. St. Rep. 792) on who are estopped by judgments; (112 Am. St. Rep. 
 28) on effect of judgment against tenant as res judicata. 
 Presumption of legitimacy of children. 
 
 Cited in Learning's Estate, 25 Pa. Co. Ct. 442; Adger v. Ackerman, 52 C. C. 
 A. 570, 115 Fed. 126, holding every intendment is to be indulged in favor of 
 legitimacy of offspring; Jones v. Gilbert, 135 111. 31, 25 N. E. 566, holding burden 
 is on party attacking validity of marriage, and consequent legitimacy of chil- 
 dren; Eddy's Estate, 8 Pa. Dist. R. 701, holding evidence to overcome presump- 
 tion of legitimacy must be conclusive; Wile's Estate, 6 Pa. Super. Ct. 441, 41 
 W. N. C. 574, Affirming 6 Pa. Dist. R. 385, 19 Pa. Co. Ct. 606, 15 Lane. L. Rev. 
 384, holding divorce will be presumed in aid of presumption of legitimacy of 
 child by second marriage; Bethany Hospital Co. v. Hale, 64 Kan. 371, 67 Pac. 
 848, holding presumption of legitimacy of child born in wedlock not overthrown 
 by assertions and recognition by putative father; Stone v. Salisbury, 209 111. 
 5, 70 N. E. 605, holding question of legitimacy of child conceded in partition 
 suit not res judicata in action involving other property rights; Jackson v. Phalen, 
 237 Mo. 150, 140 S. W. 879, holding that law presumes that second marriage is 
 legal and that children are legitimate; Walker v. Roberson, 21 Okla. 299. 97 
 Pac. 609, holding "child" or "children" in statute, deed of conveyance, or will 
 means, prima facie, legitimate child or children; Learning's Estate, 10 Pa. Dist. 
 R. 392, holding every intendment in favor of marriage and legitimacy of children 
 will be made where seduction of mother under promise of marriage is followed 
 ty long cohabitation and repute and registration of children in father's name. 
 
 Cited in notes (8 L.R.A. 102) on presumption of legitimacy of child born 
 in wedlock; (36 L.R.A.(X.S-) 258) on proof establishing bastardy of married 
 woman's child; (12 Am. St. Rep. 101, 102; 22 Am. St. Rep. 900) on presumption 
 *>f legitimacy of child born in wedlock; (126 Am. St. Rep. 265) on proof of ille- 
 gitimacy of child born in wedlock. 
 Husband and wife as joint tenants. 
 
 Cited in Thornburg v. Wiggins, 135 Ind. 178, 22 L. R. A. 44, 41 Am. St. Rep. 
 422, 34 N. E. 999, holding judgment against either husband or wife not lien upon 
 land conveyed to them jointly. 
 
 Cited in note (30 L. R. A. 328) on disposition or encumbrance of entirety 
 property as respects rights of survivorship. 
 
4 L.R.A. 434] L. R. A. CASES AS AUTHORITIES. 700 
 
 l.jn-ln-s: burden of proof. 
 
 Cited in Anderson v. Northrop, 30 Fla. 638, 12 So. 318, holding burden on 
 imrtv charging laches to show adversary had knowingly foreborne to assert rights. 
 Laches not imputable to party in possession of real estate. 
 
 Cited in Shaw v. Allen, 184 111. 79, 56 N. E. 403; Shaw v. Allen, 85 111. App. 
 26, holding owner in possession not chargeable with laches in not commencing 
 action to remove subsequent cloud on title; Boyd v. Boyd, 163 111. 615, 45 N. E. 
 118, holding laches cannot be imputed to beneficiary of trust in possession in 
 action to establish resulting trust; Wright v. Stice, 173 111. 577, 51 N. E. 71, 
 holding possession and payment of taxes by life tenant not presumed to be for 
 purpose of creating title in remainderman in bar of his own title. 
 "When cause of action accrues anil statute of limitation beg-iiis to run. 
 
 Cited in Anderson v. Northrop, 30 Fla. 632, 638, 12 So. 318; Lewis v. Barnhart, 
 145 U. S. 73, 36 L. ed. 628, 12 Sup. Ct. Rep. 772; Turner v. Hause, 199 111. 472 r 
 65 N. E. 445; Beattie v. Wbipple, 154 111. 281, 40 N. E. 340; Mettler v. Miller, 
 129 111. 643, 22 N. E. 529, holding statute does not run against remainderman 
 during continuance of life estate; Ferguson v. Herr, 64 Neb. 659, 90 N. W. 625, 
 holding action in ejectment not maintainable by heirs until expiration of in- 
 tervening tenacy by curtesy; Webster v. Pittsburg, 78 Ohio St. 97, 15 L.R.A. 
 (N. S.) 1157, 84 N. E. 592; Blair v. Johnson, 215 111. 562, 74 N. E. 747, holding 
 statute of limitations does not run 'against remaindermen until death of life 
 tenant. 
 
 Cited in notes (19 L. R. A. 847) on adverse possession against remaindermen 
 and owners of future estates; (7 L. R. A. 658) on statute of limitations does not 
 begin to run until right of action accrues; (10 L.R.A.(N.S-) 89) on effect of 
 husband's life estate upon adverse possession against wife; (13 Am. St. Rep. 
 78, 79; 14 Am. St. Rep. 638) on running of limitations against reversioner. 
 
 Distinguished in Ogden v. Leland University, 49 La. Ann. 196, 21 So. 685, 
 holding in action by heirs to recover undivided half of land as against grantee of 
 joint owner, who had attempted to convey entire estate, defendant entitled to 
 plead prescription of ten years; Chase v. Chase, 20 R. I. 207, 37 Atl. 804, holding 
 heirs guilty of laches in not commencing action to set aside deed during posses- 
 sion of life tenant, where grantees could not be restored to former position. 
 Rig'hts and estoppels of privies. 
 
 Cited in Hood v. Morgan, 47 W. Va. 822, 35 S. E. 911, holding privies are 
 those who are partakers, or have an interest in any action or thing, or any rela- 
 tion to another; Pearce v. Rice, 142 U. S. 39, 35 L. ed. 930, 12 Sup. Ct. Rep. 130. 
 holding transferee of notes pending action on guaranty succeeds to rights of 
 guaranty; Holt Mfg. Co. v. Collins, 154 Cal. 273, 97 Pac. 516, holding vendor de- 
 livering possession of property to another under conditional sale contract not 
 privy bound by judgment against such other; Towle v. Quant, 246 111. 573, 92 
 N. E. 967, holding that heir of land purchased from assignee of tax deed is es- 
 topped to deny affidavit of holder of certificate of purchase ; Smith v. White, 63 
 W. Va. 475, 14 L.R.A. (N.S.) 532, 60 S. E. 404, holding privy in estate not bound 
 by judgment against him from whom he derives his estate after he derives it. 
 
 4 L. R. A. 440, RAYMOND v. VAUGHAN, 128 111. 256, 15 Am. St. Rep. 112, 21 
 
 N. E. 566. 
 Insanity affecting; rights of partners or third parties. 
 
 Cited in Jurgens v. Ittmann, 47 La. Ann. 372, 16 So. 952, holding customers of 
 partnership not obliged to keep themselves informed as to mental condition of 
 partners; Bissell v. Peirce, 184 111. 67. 56 N. E. 374, holding agreement between. 
 
701 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 445 
 
 four persons in nature of copartnership in relation to land, terminated by in- 
 sanity of one; Kent v. West, 33 App. Div. 123, 53 N. Y. Supp. 244, holding com- 
 mittee of lunatic cannot make contract disposing of ward's property; Cresse v. 
 Loper, 72 N. J. Eq. 786, 65 Atl. 1003, holding partner assuming management of 
 whole business upon insanity of co-partner is trustee and cannot purchase part- 
 nership property himself; Barclay v. Barrie, 142 App. Div. 673, 127 N. Y. Supp. 
 403, holding that firm will not be dissolved on insanity of partner, unless it is 
 permanent; Vautier's Estate, 18 Pa. Dist. R. 554, holding estate of decedent 
 insane partner liable for debts contracted by same partners between date of 
 .adjudication of lunacy and date when insanity found to have commenced. 
 
 Cited in note (69 Am. St. Rep. 428, 429) on insanity as ground for dissolution 
 of partnership. 
 
 4 L. R. A. 445, RICHMAN v. MUSCATINE COUNTY, 77 Iowa, 513, 14 Am. St. 
 
 Rep. 308, 42 N. W. 442. 
 Legislative act must embrace but one subject. 
 
 Cited in Guaranty Sav. & L. Asso. v. Ascherman, 108 Iowa, 153, 78 N. W. 
 823, holding contracts between building and loan associations and their mem- 
 bers within subject of act "relating to building and loan association;" Beresheim 
 v. Arnd, 117 Iowa, 90, 90 N. W. 506, holding assessment of taxes authorized under 
 title providing for "listing." 
 
 Cited in notes (28 Am. St. Rep. 387) on statutes embracing only one subject; 
 (64 Am. St. Rep. 75, 106) on sufficiency of title of statute. 
 Constitutional provisions against local or special legislation. 
 
 Cited in State ex rel. West v. Des Moines, 96 Iowa, 529, 31 L. R. A. 190, 59 
 Am. St. Rep. 381, 65 N. W. 818, holding prohibition of Iowa Constitution as to 
 local and special legislation is absolute as to enumerated cases; Chicago, R. I. & 
 P. R. Co. v. Independent District, 99 Iowa, 562, 68 N. W. 881, holding curative 
 act legalizing levy of taxes for school purposes in particular district not special 
 legislation. 
 
 Cited in footnotes to Milwaukee County v. Isenring, 53 L. R. A. 635, which 
 holds act regulating sheriff's fees for particular county, local; Hamilton County 
 v. Rasche Bros. 19 L. R. A. 584, which holds statute as to taxes not applying to 
 all parts of state unconstitutional. 
 
 Cited in notes (7 L.R.A. 194) on prohibition of local and special legislation; 
 (5 L.R.A. (N.S.) 331) on curative act as special legislation; (93 Am. St. Rep. 110, 
 ]]3) on constitutional inhibition against special legislation where general law 
 -can be made applicable. 
 Power to determine whether general law applicable. 
 
 Cited in Edmonds v. Herbrandson, 2 N. D. 282, 14 L. R. A. 730, 50 N. W. 
 970, and Stuart v. Kirley, 12 S. D. 257, 81 N. W. 147, holding determination 
 whether general law can be made applicable to subject rests with legislature; 
 St. Louis Southwestern R. Co. v. State, 97 Ark. 478, 134 S. W. 970, holding same; 
 Oklahoma City v. Shields, 22 Okla. 305, 100 Pac. 559, holding under constitution- 
 al provision that no act shall take effect until ninety days after adjournment of 
 session at which passed, unless in case of emergency, legislature is sole judge 
 as to existence of emergency ; State ex rel. Smith v. Brown, 24 Okla. 445, 103 Pac. 
 762, holding that determination by legislature of what can be accomplished 
 by general or special law is not reviewable by courts. 
 
 Cited in note (14 L. R. A. 566) on legislative discretion as to local and general 
 - statutes. 
 
4 L.R.A. 445] L. R. A. CASES AS AUTHORITIES. 702 
 
 Presumption In favor of constitutionality of legislative acts. 
 
 Cited in Owen v. Sioux City, 91 Iowa, 197, 59 N. W. 3, holding legislative act 
 will not be held unconstitutional unless clearly in conflict therewith; Eckerson v. 
 Des Moines, 137 Iowa, 475, 115 N. W. 177, holding courts will not interfere on 
 constitutional grounds unless act clearly and palpably within inhibition of 
 fundamental law. 
 Effect ot cnrative act upon prior judgment. 
 
 Cited in Iowa Sav. & L. Asso. v. Heidt, 107 Iowa, 303, 43 L. R. A. 692, 70 
 Am. St. Rep. 197, 77 N. W. 1050, holding curative act validating usurious con- 
 tract passed after decree adjudging contract invalid not unconstitutional as im- 
 pairing vested right; Ferry v. Campbell, 110 Iowa, 299, 50 L. R. A. 90, 81 N. W. 
 604, holding judgment restraining collection of inheritance tax, because statute 
 failed to provide notice of assessment, may be reversed where curative act passed 
 pending appeal; State ex rel. Lownsberry v. District Ct. 102 Minn. 490, 113 X. 
 W. 697, holding operation of curative legislation validating contract unaffected 
 by existing judgment adjudging contract void and restraining performance 
 thereof. 
 AVIisit acts may be validated by cnrative acts. 
 
 Cited in Witter v. Polk County, 112 Iowa, 391, 83 X. W. 1041, and Bresser v. 
 Saarman, 112 Iowa, 727, 84 N. W. 920, holding requirement of statute which 
 might have been dispensed with by legislature when enacted, may be dispensed 
 with by curative act; Shuttuck v. Smith, 6 N. D. 80, 69 N. W. 5, holding de- 
 fective tax levy which might have been authorized originally may be validated 
 by curative act; Clinton v. Walliker, 98 Iowa, 660, 68 N. W. 431, and Tuttle v. 
 Polk, 84 Iowa, 16, 50 N. W. 38, holding legislature may legalize defective paving 
 contract, if omission such as might have been dispensed with by prior statute; 
 Xottage v. Portland, 35 Or. 551, 76 Am. St. Rep. 513. 58 Pac. 883, holding act 
 covering defective proceeding for street improvement available as defense in 
 action to restrain collection of assessment; Thomas v. Portland, 40 Or. 53, 66 
 Pac. 439, holding act giving right of action for cost of street improvement, after 
 assessment adjudged invalid, not taking of property without due process of la\v; 
 Fair v. Buss, 117 Iowa, 166, 90 X. W. 527, holding that legislature can legalize 
 void act; Gill v. Patton, 118 Iowa, 90, 91 X. W. 904, upholding power of legisla- 
 ture to authorize cities to correct assessment of special tax by reassessment; 
 McSurely v. McGrew, 140 Iowa, 172, 332 Am. St. Rep. 248, 118 X. W. 415, holding 
 legislature generally speaking, may by subsequent act validate and confirm pre- 
 vious acts of corporation otherwise invalid; Ida Grove v. Ida Grove Armory Co. 
 
 146 Iowa, 694, 125 X. W. 866, holding that acts of town council with relation 
 to erection of city hall were fully legalized by curative act; Carr v. District Ct 
 
 147 Iowa, 676, 126 X. W. 791, holding that legislature can legalize school war- 
 rants; Heacock v. Sullivan, 70 Kan. 7-54. 79 Pac. 659, holding legislature cannot by 
 curative act render valid an unconstitutional act; Baucum v. Claiborne Parish, 
 119 La. 536, 44 So. 289, holding legislature might dispense with statement of 
 amount of tax in petition of taxpayers for election as required by statute with- 
 out infringing constitutional provision as to special elections; State ex rel. 
 Richardson v. Larkin, 41 Tex. Civ. App. 265, 90 S. W. 912, holding legislature 
 had power by special act to pass curative act legalizing defective incorporation of 
 city already in existence under general laws; Allen v. Davenport, 65_C. C. A. 641, 
 132 Fed. 223 (dissenting opinion), on curative legislation validating acts defec- 
 tive by reason of omission or want of compliance which could have been dispensed 
 with by prior statute. 
 
703 L. K. A. CASES AS AUTHORITIES. [4 L.K.A. 455 
 
 Courts not controlled by previous rulings in name case. 
 
 Cited in Seery v. Murray, 107 Iowa, 390, 77 N. W. 1058, holding judge not re- 
 quired to indorse or follow rulings of another judge sitting in prior proceedings 
 in same case; Van Werden v. Equitable Life Assur. Soc. 99 Iowa, 623, 68 X. W. 
 892; Bibbins v. Polk County, 100 Iowa, 495, 69 N. W. 1007; Perry v. Baker, 61 
 Neb. 843, 86 X. W. 692, holding court not concluded by ruling on demurrer to 
 petition, upon same question arising at subsequent stage of case; Dela Beckwith 
 v. Colusa County, 146 Cal. 500, 80 Pac. 717, holding court may reconsider ruling 
 on demurrer at any time prior to final judgment in favor of party. 
 Jurisdiction of county board of supervisors in proceedings for drafnagre 
 district. 
 
 Cited in Seibert v. Lovell. 92 Iowa, 511, f 1 N. W. 197, holding sufficiency of 
 petition to confer jurisdiction to be determined from petition when filed, with- 
 out regard to subsequent acts of petitioners; Sim v. Rosholt, 16 X. D. 81, 11 
 L.R.A.(N.S.) 378, 112 N. W. 50, holding jurisdiction of board to establish drain 
 having attached by filing of sufficient petition retention of jurisdiction could 
 not depend upon subsequent act of petitioners. 
 
 4 L. R. A. 453, RICHARDS v . KNIGHT, 78 Iowa, 69, 42 N. W. 584. 
 Title to mortprag-ed property on foreclosure. 
 
 Cited in Lombardi v. Shero, 14 Tex. Civ. App. 597, 37 S. W. 613, holding im- 
 mature crops are mortgaged with the land; Re Sullivan, 142 Fed. 621, holding 
 matured crops not part of realty constituting homestead of bankrupt. 
 
 Cited in footnotes to Sievers v. Brown. 45 L. R. A. 642. which holds vendor en- 
 titled to crops planted by one in possession after refusal to comply with con- 
 tract of purchase; Whithed v. St. Anthony & D. Elevator Co. 50 L. R. A. 254, 
 which holds purchaser on foreclosure of leased land entitled to wheat stored by 
 tenant for payment as rent. 
 
 Cited in notes (10 L. R. A. 492) on mortgage of crops; (6 L. R. A. 618) on 
 growing crops; (23 L.R.A. 452) on sale or mortgage of future crops; (15 Eng. 
 Rul. Gas. 558) on effect of custom as to tenant's right in waygoing crop. 
 
 Disapproved in Reilly v. Carter, 75 Miss. 801, 65 Am. St. Rep. 621, 23 So. 435, 
 holding mortgagee after purchase on foreclosure sale holds as absolute owner 
 land and unsevered crops. 
 Instructions on matters not proved. 
 
 Cited in note (17 Am. St. Rep. 252) on instructions upon matters not proved, 
 disputed nor involved in the case. 
 
 4 L. R. A. 455, MEREDITH v. KUXZE, 78 Iowa, 111, 42 N. W. 619. 
 Description of mortgaged property. 
 
 Cited in footnote to Turpin v. Cunningham, 51 L. R. A. 800, which holds mort- 
 gagee's rights not affected as against subsequent purchaser by change in color 
 of mortgaged horse after mortgage given. 
 
 Distinguished in Johnson v. Rider, 84 Iowa, 53, 50 N. W. 36, holding descrip- 
 tion of property as mortgagor's "undivided two-thirds interest in any and all 
 crops grown" on certain farm for designated year, sufficient; Frick v. Fritz, 115 
 Iowa. 445, 91 Am. St. Rep. 165, 88 X. W. 961, holding mortgage on herd of cattle 
 distinctly pointed out therein, not rendered insufficient by subsequently mingling 
 rierd with other cattle; Armstrong v. Ford, 10 Wash. 69, 38 Pftc. 866. upholding 
 mortgagee's lien as against mortgagor on goods purchased to renew stock after 
 sales under mortgage providing for sale and replenishment from time to time. 
 
4 L.R.A. 455] L. E. A. CASES AS AUTHORITIES. 704 
 
 4 L. R. A. 457, JOSLYN v. KING, 27 Neb. 38, 20 Am. St. Rep. 656, 42 X. \V. 7.36. 
 Registered mail. 
 
 Cited in Boston Ins. Co. v. Chicago, R. I. & P. R. Co. 118 Iowa, 434, 59 L. R. 
 A. 801, 92 N. W. 88, holding railroad carrying mail under United States con- 
 tract, not liable to sender of registered mail for negligence. 
 
 Cited in footnote to Ross v. Hawkeye Ins. Co. 34 L. R. A. 466, which holds 
 notice by registered letter completed by due registration at office from which sent. 
 
 4 L. R. A. 458, DWELLING HOUSE INS. CO. v. BRODIE, 52 Ark. 11, 11 S. 
 
 W. 1016. 
 Inaccuracies in policy. 
 
 Cited in Bennett v. Massachusetts Mut. L. Ins. Co. 107 Tenn. 377, 64 S. W. 
 758, holding insured can recover premiums on policy issued upon application in 
 which false answers were written by medical examiner; Tubbs v. Dwelling-house 
 Ins. Co. 84 Mich. 651, 48 N. W. 296, holding fire insurance company cannot avoid 
 policy for misstatements by its agent in application where correct answer was 
 given; Providence Life Assur. Soc. v. Reutlinger, 58 Ark. 543, 28 S. W. 835, hold- 
 ing life insurance company cannot defeat policy issued upon false answer writ- 
 ten in application by its medical examiner if correct answer was given; Sprott v- 
 New Orleans Ins. Asso. 53 Ark. 223, 13 S. W. 799, holding fire insurance con 
 pany cannot defeat policy warranting a fact known to be false by agent insert- 
 ing it. 
 
 Cited in footnote to Globe Mut. L. Ins. Asso. v. Wagner, 52 L. R. A. 649, which 
 holds policy not avoided by false statement that none of applicant's brothers 
 dead. 
 Limitation of action on policy. 
 
 Cited in footnote to Union Central L, Ins. Co. v. Spinks, 69 L.R.A. 264, which 
 holds void provision that suit shall be brought on life policy within period less 
 than that fixed by statute of limitations. 
 
 Cited in note (8 L. R. A. 49) on limitation of action on fire insurance policy. 
 When conditions waived. 
 
 Cited in Phoenix Ins. Co. v. Flemming, 65 Ark. 62, 39 L. R. A. 793, 67 Am. St. 
 Rep. 900, 44 S. W. 464, holding knowledge of agent that fireworks were kept for 
 sale on insured premises at time policy issued must be shown to waive for- 
 feiture; German American Ins. Co. v. Humphrey, 62 Ark. 353, 54 Am. St. Rep. 
 297, 35 S. W. 428, holding clerk of local agent cannot waive forfeiture of policy 
 due to encumbrance; Burlington Ins. Co. v. Kennerly, 60 Ark. 538, 31 S. W. 155, 
 holding local agent cannot waive proof of loss within specified time; Hartford F. 
 Ins. Co. v. Amos, 98 Ga. 535, 25 S. E. 575, holding fire insurance company waived 
 stipulation limiting time of commencing suit by promise to adjust loss ; Phoenix 
 Ins. Co. v. Public Parks Amusement Co. 63 Ark. 202, 37 S. W. 959, holding for- 
 feiture waived by agents of fire insurance company; King v. Cox, 6i> Ark. 211, 
 37 S. W. 877, holding insurance company knew of and assented to sale of prem- 
 ises to one of the members of firm; State Mut. Ins. Co. v. Latourette, 71 Ark. 
 247, 74 S. W. 300, upholding authority of local agent to waive warranty as to 
 title, although company stipulates not to be bound by promises not in contract; 
 German-American Ins. Co. v. Harper, 75 Ark. 100, 86 S. W. 817, holding company 
 waived forfeiture where it had notice of other insurance and its renewal and 
 made no objection until after fire; Capital F. Ins. Co. v. Montgomery, 81 Ark. 
 510, 99 S. W. 687, holding warranty that insured property was unincumbered 
 waived by communication to agent by insured, who was illiterate, of knowledge 
 that property was mortgaged; Capital F. Ins. Co. v. Johnson, 82 Ark. 95, 109 
 
705 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 458 
 
 S. W. 749, holding all advantages of misrepresentations as to title and incum- 
 brances waived by agreement of company to indorse insurance on building in 
 new location to which moved; Rock Island Plow Co. v. Rankin, 89 Ark. 29, 115 
 S. W. 943, holding waiver of warranty in policy may be proved by parol evi- 
 dence, and by analogy, waiver of penalty clause in contract may be proved in 
 same way; Fidelity & G. Co. v. Brown, 4 Ind. Terr. 410, 69 S. W. 915, holding 
 action taken by company upon notice it had of accident to insured, without any 
 intimation that it refused to pay because of want of notice, constituted waiver 
 of such notice; Leisen v. St. Paul F. & M. Ins. Co. 20 N. D. 333, 30 LH.A.(N.S.) 
 550, 127 N. W. 837, holding that insurance company by issuing policy with 
 knowledge of facts rendering void, waives forfeiture. 
 
 Cited in notes (13 L.R.A.(X.S.) 842) on effect of nonwaiver agreement on con- 
 ditions existing at inception of policy; (16 L.R.A. (X.S.) 1240) on parol evidence 
 rule as to varying or contracting written contracts, as affected by doctrine of 
 waiver or estoppel as applied to insurance policies; (107 Am. St. Rep. 135) on 
 waiver of provisions of nonwaiver or written waiver of conditions and forfeitures 
 in policies. 
 
 Distinguished in Parsons v. Lane (Re Millers' & Mfrs.' Ins. Co.) 97 Minn. 107, 
 4 L.R.A.(X.S.) 236, 106 X. W. 485, 7 A. & E. Ann. Gas. 1144, where neither com- 
 pany nor its agent had knowledge of conditions, and there were no facts upon 
 which to base waiver. 
 Estopped by acts of agent or officers. 
 
 Cited in New York L. Ins. Co. v. Rassell, 23 C. C. A.. 54, 40 U. S. App. 530, 
 77 Fed. 106, holding life insurance company cannot defend because facts communi- 
 cated to agent not set forth fully in application; Standard Life & Acci. Ins. Co. v. 
 Schmaltz, 66 Ark. 597, 74 Am. St. Rep. 112, 53 S. W. 49, holding accident in- 
 surance company liable for death due to overexertion by machinist engaged at his 
 trade; Steel v. Phenix Ins. Co. 2 C. C. A. 467, 7 U. S. App. 325, 51 Fed. 719, 
 holding fire insurance company cannot defend for delay in bringing suit if state- 
 ments of its own agents caused the delay; Germania Ins. Co. v. Bromwell, 62 
 Ark. 48, 34 S. W. 83, holding estoppel and waiver cannot arise on policy not 
 yet issued; Southern Ins. Co. v. Hastings, 64 Ark. 257, 41 S. W. 1093, holding 
 insurance company estopped to set up false answers written in policy by its own 
 agent; Franklin L. Ins. Co. v. Galligan, 71 Ark. 299, 73 S. W. 102, holding com- 
 pany estopped from asserting falsity of answers in application, by knowledge of 
 its examining physician of their falsity; People's F. Ins. Asso. v. Goyne, 79 Ark. 
 323, 16 L.R.A.(X.S.) 1191, 96 S. W. 365, 9 A. & E. Ann. Cas. 373, holding that 
 insurance company may be estopped by conduct of its agent, acting within ap- 
 parent scope of his authority, from availing itself of false answer to material 
 question or other breach of warranty or violation of provisions of policy or ap- 
 plication, notwithstanding clauses to contrary effect in policy, and that such 
 estoppel is provable by parol. 
 
 Cited in footnote to State Ins. Co. v. Schreck, 6 L. R. A. 524, which denies 
 necessity of reforming policy misdescribing place where property is situated 
 before bringing action, where mistake was that of insurance agent, and assured 
 continually resided on premises. 
 
 Cited in notes (16 L. R. A. 34) on effect of knowledge by insurer's agent of 
 falsity of statements in application; (8 L. R. A. 71) fire insurance not affected by 
 wrongful acts of company's agent. 
 Authority of insjnrance nrent. 
 
 Cited in Fidelity Mut. L. Ins. Co. v. Bussell, 75 Ark. 29, 86 S. W. 814, holding 
 collecting agent without authority to grant extension of time of payment of 
 L.R.A. Au. Vol. I. 45. 
 
4 L.R.A. 458] L. R. A. CASES AS AUTHORITIES. 700 
 
 overdue premium note; Phooenix Assur. Co. v. Boyette, 77 Ark. 51, 90 S. W. 284, 
 holding agent with power to issue policy on all cotton in warehouse has power to 
 issue policy on portion thereof; Remmel v. Witherington, 76 Ark. 375, 88 S. W. 
 967, holding general agent of insurance company responsible for act of special 
 agent who procured premium note from illiterate person by fraud. 
 
 4 L. R. A. 462, VAHLBERG v. KEATON, 51 Ark. 534, 14 Am. St. Rep. 73, 11 
 
 S. W. 878. 
 What constitutes usury. 
 
 Cited in Ellenbogen v. Griffey, 55 Ark. 272, 18 S. W. 126, questioning, but not 
 deciding, whether reasonable charge for examining title and drafting securities 
 constitutes usury; Richardson v. Shattuck, 57 Ark. 352, 21 S. W. 478,* holding re- 
 quiring borrower to furnish abstract of title and to record mortgage, in addition 
 to highest legal interest, not usury. 
 
 Cited in note (46 Am. St. Rep. 189, 197, 199) on what transactions are usurious. 
 Reservation of interest in advance. 
 
 Cited in Bank of Newport v. Cook, 60 Ark. 290, 29 L. R. A. 763, 46 Am. St. 
 Rep. 171, 30 S. W. 35, and Baird v. Millwood, 51 Ark. 549, 11 S. W. 881, holding 
 reserving interest in advance not usury; First Xat. Bank v. Waddell. 74 Ark. 251, 
 85 S. W. 417, 4 A. & E. Ann. Cas. 818, holding agreement for monthly pay- 
 ments of interest is merely taking interest in advance, which is not usurious. 
 
 Cited in note (29 L. R. A. 764) on lawfulness of taking interest in advance. 
 Bonus to borrower's agent. 
 
 Cited in Dryfus v. Burnes, 53 Fed. 410, and Baird v. Millwood, 51 Ark. 549, 
 11 S. W. 881, holding commissions paid by borrower to his agent form no part 
 of interest. 
 
 Cited in note (24 Am. St. Rep. 239) on bonus paid to agent as usury. 
 Bonus to lender's agent. 
 
 Cited in Barger v. Taylor, 30 Or. 237, 47 Pac. 618; Short v. Pullen, 63 Ark. 
 386, 38 S. W. 1113; Hughes v. Griswold, 82 Ga. 308, 9 S. E. 1092; Hendrickson 
 v. Godsey, 54 Ark. 157, 15 S. W. 193, holding reservation of excessive bonus 
 by lender's agent without lender's knowledge, not usury; Brown v. Archer, 62 
 Mo. App. 288, holding compensation of loan association's agent by exactions over 
 legal interest usurious; American Mortg. Co. v. Woodward, 83 S. C. 528. 65 
 S. E. 739, holding receipt of excessive and unreasonable commissions by agent of 
 lender with knowledge, actual or constructive, of principal, renders transaction 
 usurious, if such commissions and interest added exceed lawful rates. 
 
 Cited in footnote to Clarke v. Havard, 51 L. R. A. 499, which holds usurious,, 
 commission paid by borrower to lender's agent. 
 
 Cited in note (19 L.R.A.(N.S.) 392) on commissions charged borrower by 
 lender's agent as usury. 
 
 Distinguished in Martin v. Adams, 66 Ark. 15, 48 S. W. 494, holding payment 
 of bonus to broker not acting for lender and without lender's knowledge not 
 usury. 
 
 American laws modeled after English statutes. 
 
 , Cited in Little Rock.& Ft. S. R. Co. v. Oppenheimer, 64 Ark. 295, 44 L. R. A. 
 362, 43 S. W. 150 (dissenting opinion) as to adoption of construction by Eng- 
 lish courts of English statute on adopting statute. 
 
 Construction of constitution according to legislative construction there- 
 of. 
 
 Limited in Griffin v. Rhoton, 85 Ark. 95, 107 S. W. 380, holding judges war- 
 
707 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. <JO 
 
 ranted in looking to extraneous matters for aid in construing constitutional 
 provisions only when examination of Constitution leaves doubt. 
 
 4 L. R. A. 466, HANDY v. GLOBE PUB. CO. 41 Minn. 188, 16 Am. St. Rep. 
 
 695, 42 N. W. 872. 
 Sunday labor. 
 
 Cited in Stewart v. Thayer, 168 Mass. 520, 60 Am. St. Rep. 407, 47 N. E. 420, 
 holding contract for band performances some of which were to be before sunset 
 on Sunday void; Publishers; George Knapp & Co. v. Culbertson, 152 Mo. App. 
 153, 133 S. W. 55, holding contract for advertisement in Sunday papers, void; 
 Telfer v. Lambert, 79 N. J. L. 301, 75 Atl. 779, holding void, entire contract to 
 finish certain work, most of which is to be done on Sunday. 
 
 Cited in footnotes to State v. McBee, 60 L. R. A. 638, which holds pumping oil 
 well on Sunday work of necessity, if permanent, material loss and injury would 
 otherwise result; Arnheiter v. State, 58 L. R. A. 392, which holds sale of meat 
 by butcher to customers on Sunday not work of necessity or charity; Dugan 
 v. State, 9 L. R. A. 321, which holds pilot on boat carrying pleasure parties 
 on Sunday, punishable; First M. E. Church v. Donnell, 46 L. R. A. 858, which 
 sustains subscription to church indebtedness made on Sunday; State v. Collett, 
 64 L.R.A. 204, which holds repairing of belt in factory on Sunday so as to pre- 
 vent two hundred hands from losing work on the following day. 
 
 Cited in note (30 Am. St. Rep. 27) on work which may be done on Sunday. 
 What are illegal contracts. 
 
 Cited in Denning v. Yount, 62 Kan. 221, 50 L. R. A. 105, 61 Pac. 803, holding 
 repeal of ordinance requiring license fee from real-estate agents does not vali- 
 date agreement for commission prior thereto; Fleming v. Greene, 48 Kan. 650, 
 20 Pac. 11, holding notes given for excess of invoice fraudulently made by col- 
 lusion with payee void; Crichfield v. Bermudez Asphalt Paving Co. 174 HI. 
 484, 42 L. R. A. 353, 51 N. E. 552, holding agreement to obtain contracts 
 from city for paving company void; Sawyer v. Sanderson, 113 Mo. App. 245, 88 
 S. W. 151, holding contract made in violation of express statutory provisions 
 are inoperative and void; Cohen v. Conrad, 110 Minn. 209, 124 N. W. 992, hold- 
 ing that void stipulations for enforcement of payment of rent are no defense 
 to action for rent. 
 
 Cited in notes in 12 L.R.A. 121, on inability to ratify illegal contract; (117 
 Am. St. Rep. 498, 505) on contracts, consideration for which has partly failed, 
 or is partly illegal. 
 Pleading- illegality of a contract. 
 
 Cited in Rucker v. Bolles, 67 C. C. A. 30, 133 Fed. 862, holding that where the 
 plaintiff on his part admitted the invalidity of the illegal contract, on trial the 
 defendant need not plead the same; Frankel v. Killer, 16 N. D. 392, 113 N. W. 
 1067, 15 A. & E. Ann. Cas. 265, holding that the illegality of a contract, relied 
 upon as a defense, must be pleaded, unless it appears so upon its face or from 
 the plaintiff's evidence. 
 Contracts incapable of ratification. 
 
 Cited in note (59 Am. St. Rep. 639) on contracts incapable of ratification. 
 
 4 L. R. A. 470, SLOAN v. COBURN, 26 Neb. 607, 42 N. W. 726. 
 Chattel mortgage; when transaction so construed. 
 
 Cited in Musser v. King, 40 Neb. 898, 42 Am. St. Rep. 700, 59 N. W. 744, hold- 
 ing chattel mortgage is pledge of personal property, whether written or oral, to 
 secure performance of promise. 
 
4 L.R.A. 470j L. R. A. CASES AS AUTHORITIES. 708 
 
 Fraud, burden of proof. 
 
 Cited in Blumer v. Bennett, 44 Neb. 879, 63 N. W. 14, holding burden on 
 creditors attacking title of chattel mortgagee taking immediate possession. 
 Declarations of grantor in disparagement of title. 
 
 Cited in Armagost v. Rising, 54 Neb. 768, 75 N. W. 534; McDonald v. Bowman, 
 40 Neb. 273, 58 N. W. 704, holding proof of declarations of mortgagor in pos- 
 session subsequent to execution of mortgage admissible to show his intent; 
 O'Hare v. Duckworth, 4 Wash. 475, 30 Pac. 724, holding declarations of grantor 
 preceding conveyance competent evidence of fraudulent intent in its execution. 
 
 Distinguished in Kyd v. Cook, 56 Neb. 81, 71 Am. St. Rep. 661, 76 N. W. 
 524, holding evidence of declarations of vendor not in possession, aa to pur- 
 pose of conveyance, not admissible against subsequent grantee. 
 Intent to hinder and delay creditors. 
 
 Cited in Livingston v. Swotford Bros. Dry Goods Co. 12 Colo. App. 333, 56 
 Pac. 355, holding intent participated in by both chattel mortgagor and mort- 
 gagee renders conveyance void as to creditors. 
 Instructions must be applicable to evidence. 
 
 Cited in Farmers' Loan & T. Co. v. Montgomery, 30 Neb. 41, 46 N. W. 214, 
 holding instruction assuming state of facts of which there is no evidence, re- 
 versible error. 
 
 4 L. R. A. 473, GERMANIA INS. CO. v. SWIGERT, 128 111. 237, 21 N. E. 530. 
 Retaliatory insurance legislation. 
 
 Cited in Union Cent. L. Ins. Co. v. Durfee, 164 111. 194, 45 N. E. 441, holding 
 statute imposing tax on foreign company enforceable, though there is no local 
 company capable of doing business in such foreign state; State v. Insurance 
 Co. of N. A. 71 Neb. 326, 99 N. W. 36, holding law, imposing upon foreign insur- 
 ance companies tax of same amount as is required by state wherein such com- 
 panies are created to be paid by insurance companies of other states doing busi- 
 ness in such foreign state, enforceable regardless of question whether domestic 
 insurance companies are doing business in foreign state discriminating in favor 
 of its own companies. 
 
 Cited in notes (8 L. R. A. 131; 24 L. R. A. 304) on retaliatory legislation. 
 
 4 L. R. A. 477, THOMAS v. WESTCHESTER COUNTY, 115 N. Y. 47, 21 N. 
 
 E. 674. 
 Payment; what amounts to. 
 
 Cited in Walrath v. Abbott, 75 Hun, 453, 27 N. Y. Supp. 529, holding assign- 
 ment of third mortgage not payment of antecedent debt, where insolvency of 
 mortgagor unknown to either party. 
 
 Cited in footnote to Hall v. Stevens, 5 L. R. A. 802, which holds debt 
 paid by giving and receiving draft on insolvent bank before it ceased busi- 
 ness. 
 
 Cited in notes (9 L.R.A. 263) on acceptance of check, not ipso facto payment; 
 (77 Am. St. Rep. 629; 10 L.R.A.(N.S.) 535; 35 L.R.A.(N.S.) 30) on payment by 
 commercial paper. 
 Counties; enforcement of claims. 
 
 Cited in Kennedy v. Queens County, 47 App. Div. 257, 62 N. Y. Supp. 276, 
 and People ex rel. Martin v. Westchester County, 57 App. Div. 137, 67 N. Y. 
 Supp. 981, holding it optional with claimant against county to present account 
 to board for audit or bring action thereon. 
 
709 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 481 
 
 4 L. R. A. 480, GILLS LITHOGRAPHIC & LIBERTY PRINTING CO. v. CHASE, 
 149 Mass. 459, 14 Am. St. Rep. 439, 21 N. E. 765. 
 
 4 L. R. A. 481, NORTH CHICAGO CITY R. CO. v. GASTKA, 128 111. 613, 21 
 
 N. E. 522. 
 Carrier's liability for servant's acts. 
 
 Cited in Illinois C. R. Co. v. Davenport, 75 111. App. 583, holding carrier liable 
 for wanton and wilful ejection of trespasser from moving train by brakeman; 
 Chicago, M. & St. P. R. Co. v. Doherty, 53 111. App. 285, holding railway liable 
 for injuries received by boy stealing ride on engine, through fall under cars 
 caused by engineer throwing coal at him; Hagerstrom v. West Chicago Street 
 R. Co. 67 111. App. 66, holding negligence of railway question for jury where 
 conductor spat upon and struck at boy stealing ride on back of car, whereby he 
 jumped off and was injured by car coming in opposite direction; Tri-City R. Co. 
 v. Gould, 118 111. App. 604, holding employment of excessive force, or other un- 
 reasonable means in removing passenger for using vulgar or indecent language, 
 or removal under circumstances likely to cause injury, resulting in injury, ren- 
 ders carrier liable for act of conductor; Brink's Chicago City Exp. Co. v. Brophy, 
 136 111. App. 150, holding master liable for act of servant in striking person, 
 though striking not necessary in carrying out master's orders as to nondelivery 
 of goods without receipt; Hickey v. Chicago City R. Co. 148 111. App. 215, holding 
 trespasser not obliged to jump off in front of trolley car while it is running at 
 order of conductor that he remove himself from dangerous position. 
 
 Cited in notes (6 L. R. A. 242) on liability of railroad company for acts of 
 agents and servants; (27 L. R. A. 189) on master's civil responsibility for 
 wrongful or negligent act of servant or agent towards one who has no claim on 
 master by reason of contract incipient or perfected; (13 L.R.A. (N.S.) 365, 370) 
 on liability of railroad for negligence in ejecting trespasser from moving train; 
 (32 Am. St. Rep. 99) on carrier's duty to protect passengers from assault; (35 
 L. ed. U. S. 923) on negligence of railroad companies toward passengers. 
 
 Distinguished in Belt R. Co. v. Banicki, 102 111. App. 648, holding railroad 
 company not liable for injury caused by shot fired by freight watchman at 
 trespasser peacefully leaving premises; Barger v. North Chicago Street R. Co. 
 54 111. App. 285, holding judgment for defendant will not be reversed in action 
 by trespasser for personal injuries, where complaint does not show act of 
 defendant's servant within scope of employment. 
 Sufficiency of preponderance of evidence. 
 
 Cited in West Chicago Street R. Co. v. Loftus, 83 111. App. 196, upholding 
 instruction that "slight preponderance" of evidence in favor of plaintiff suffi- 
 cient. 
 Consent to absence of witness. 
 
 Distinguished in Kellyville Coal Co. v. Hill, 94 111. App. 92, same case 95 
 111. App. 668, holding affidavit in support of motion for continuance on ground 
 of absence of witness need not show that absence was without consent where 
 the witness had never been in court and reasonable efforts to secure his at- 
 tendance failed. 
 Acts of servant outside master's business or servant's employment. 
 
 Cited in Hills v. Strong, 132 111. App. 178, holding master not liable for negli- 
 gence of person to whom servant, without authority, turned over team and wagon 
 of master. 
 
 Cited in notes (4 L.R.A. (X.S.) 488) on liability for malicious act of servant 
 when master owes special duty to party injured; (19 Am. St. Rep. 713) on mas- 
 ter's liability for servant's acts in course of employment. 
 
4 L.R.A. 481] L. R. A. CASES AS AUTHORITIES. 710 
 
 Instructions to Jury. 
 
 Cited in People ex rel. Rardin v. Rardin, 151 111. App. 85, on misleading in- 
 struction. 
 
 4 L. R. A. 483, MILLER v. POWERS, 119 Ind. 79, 21 N. E. 455. 
 Rescission or reformation of contract. 
 
 Cited in footnotes to Decker v. Schulze, 27 L. R. A. 335, which holds mere 
 breach of covenant as to title not ground for rescinding executed sale of land; 
 Bigham v. Madison, 47 L. R. A. 267, which authorizes rescission for mutual 
 mistake as to location of boundary lines pointed out by vendor; Atherton v. 
 Roche, 55 L. R. A. 591, which denies power to reform deed to daughter and 
 husband and "their" heirs so as to include all heirs of her body. 
 Mistake, as a result of ignorance or negligence. 
 
 Cited in McLean v. Lowe, 126 Ind. 458, 26 N. E. 398, holding indorser of 
 draft liable although ignorant ot his liability when indorsing; Fidelity & C. 
 Co. v. Teter, 136 Ind. 678, 36 N. E. 283, holding parties without mistake or fraud 
 bound by clear terms of contract; Stewart v. Chicago & E. I. R. Co. 141 Ind. 
 61, 40 N. E. 67, holding contracting party must use reasonable diligence to as- 
 certain facts on which he acts; Wood v. Wack, 31 Ind. App. 255, 67 N. E. 562, 
 holding person signing bound by contract from which stipulations agreed upon 
 were omitted; Wayne International Bldg. & L. Asso. v. Gilmore, 37 Ind. App. 
 152, 72 N. E. 190, holding where bond and mortgage and by-laws of loan asso- 
 ciation were not susceptible of construction put upon them by representations 
 of agent of association, person signing bond and mortgage was bound, it not 
 being shown that he was prevented from knowing provisions when he .signed. 
 
 Cited in footnote to Langevin v. St. Paul, 15 L. R. A. 766, which holds agent's 
 mistaken belief that all of lots jointly sold for taxes belonged to principal not 
 ground to recover back any of redemption money. 
 
 Cited in notes (6 L. R. A. 836) on necessity of mistake being material and 
 free from culpable negligence; (11 L. R. A. 857) on mistake in written con- 
 tract; relief fund; (5 L. R. A. 153, 154) as to when relief obtainable in 
 equity for mistake. 
 
 Distinguished in Givan v. Masterson, 152 Ind. 132, 51 N. E. 237, setting aside 
 deed executed under belief it was mortgage, through fraud of stepfather. 
 Concealment as affecting statute of limitations. 
 
 Cited in Kennedy v. Warnica, 136 Ind. 164, 36 N. E. 22, dismissing com- 
 plaint in action barred by statute, active concealment not being shown; Jack- 
 son v. Jackson, 149 Ind. 243, 47 N. E. 963; Dearborn County v. Lods, 9 Ind. 
 App. 373, 36 N. E. 772; Bower v. Thomas, 22 Ind. App. 508, 54 N. E. 142; 
 Lemster v. Warner, 137 Ind. 81, 36 N. E. 900, holding statute will run unless 
 there be an affirmative act, trick, or artifice to prevent or elude inquiry; Fortune 
 v. English, 128 111. App. 543, holding mere silence by person liable to action not 
 concealment within meaning of statute, something of affirmative character must 
 be said or done. 
 
 Cited in notes (6 L.R.A. 799) on statute of limitations running from discovery 
 -of concealed fraud; (14 Am. St. Rep. 277) on time to object on ground of fraud. 
 
 4 L. R. A. 488, DAYTON V. ADK1SSON, 45 N. J. Eq. 603, 14 Am. St. Rep. 
 
 763, 17 Atl. 964. 
 Legitimation of child by marriage. 
 
 Cited in Tuttle v. Woolworth, 74 N. J. Eq. 320, 77 Atl. 684, holding facts of 
 ase bring it within principle of cited case but that discussion of questions arising 
 out of statutory legitimation is unnecessary; Finley v. Brown, 122 Tenn. 336, 
 
711 L. R. A. CASES AS .AUTHORITIES. [4 LJ?.A. 493 
 
 25 L.R.A.(N.S.) 1291, 123 S. W. 359, on legitimation by marriage and extraterri- 
 torial effect of such legitimation. 
 
 Cited in footnote to Fowler v. Fowler, 59 L. R. A. 318, which holds legitimation 
 by law of parents' domicil, binding elsewhere. 
 
 Cited in notes (13 L.R.A. 276, 278) on effect of subsequent marriage of parents 
 on antenuptial issue; (65 L.R.A. 181) on conflict of laws as to legitimacy; (5 
 Eng. Rul. Cas. 764) on law governing status of legitimacy. 
 
 4 L. R. A. 491, COLLAR v. COLLAR, 75 Mich. 414, 42 N. W. 847. 
 
 Judgment for plaintiff on new trial reversed and new trial ordered, in Collar v. 
 Collar, 86 Mich. 508, 13 L. R. A. 623, 49 N. W. 551. 
 Action to recover trust funds. 
 
 Cited in Harris v. Clark, 94 Iowa, 329, 62 N. W. 854, holding debt lies to re- 
 cover sum realized by defendant on sale of land under parol agreement with 
 plaintiff where after receipt of proceeds defendant has promised to pay over 
 same; Logan v. Brown, 20 Okla. 349, 20 L.R.A.(N.S.) 299, 95 Pac. 441, holding 
 where one takes title to real property under parol agreement to hold same and 
 sell it for grantor, after having sold it and received proceeds, he is liable for 
 proceeds thereof to grantor. 
 Parol evidence as to writings. 
 
 Cited in note (15 Am. St. Rep. 714) on parol evidence as to writings. 
 
 4 L. R. A. 493, WILLIS v. SHARP, 113 N. Y. 586, 21 JSi. E. 705. 
 Continuance of business of deceased by his representative. 
 
 Cited in Stewart v. Robinson, 115 N. Y. 336, 5 L. R. A. 413, 22 N. E. 160, 
 holding estate not liable for debts of partnership continued by surviving partner 
 solely under ante mortem agreement; Thomas Adams & Co. v. Albert, 155 N. Y. 
 365, 63 Am. St. Rep. 675, 49 N. E. 929, holding unliquidated interest of re- 
 tiring partner remains at risk of the business; Munzor's Estate, 4 Misc. 376, 25 
 N. Y. Supp. 818, and Kenyon v. Olney, 39 N. Y. S. R. 841, 15 N. Y. Supp. 
 416, holding debts contracted by administrator in continuing business of intes- 
 tate not binding on estate; Re MuIIon, 74 Hun, 366, 26 N. Y. Supp. 683, holding 
 property bought by administrators would belong to them personally, if assum- 
 ing to carry on business in name of estate; Re Rumsey. 45 N. Y. S. R. 456, 18 
 N. Y. Supp. 402, holding direction in will to continue business for specified time 
 unless deemed unprofitable by executors, valid; Darling v. Powell, 20 Misc. 242, 
 45 N. Y. Supp. 794, holding executors liable personally for debts contracted as 
 executors after testator's death; McCue v. Finck, 20 Misc. 507, 46 N. Y. Supp. 
 242, holding estate not liable for tort of executor in connection with conduct 
 of business decided by will ; Dexter v. Dexter, 43 App. Div. 278, 60 N. Y. Supp. 
 371 (dissenting opinion) majority denying surviving partner's right to con- 
 tinue business of firm; Saperstein v. Ullman, 168 N. Y. 637, 61 N. E. 553, dissent- 
 ing opinion, Affirming 49 App. Div. 448, 63 N. Y. Supp. 626, majority de- 
 nying liability of executor as such, for debts contracted by him while continu- 
 ing testator's business, under will expressing such wish; Re Hickey, 34 Misc. 
 362, 69 N. Y. Supp. 844, holding creditor can only reach assets in testator's busi- 
 ness at time of death, when executor continues by permission in will; Packard 
 v. Kingman, 109 Mich. 506, 67 N. W. 551, holding estate liable on executor's 
 contract in continuing testator's business under authority of will; Ferris v. 
 Van Ingen, 110 Ga. 109, 35 S. E. 347, holding testator may authorize surviv- 
 ing partner to carry on firm's business so as to bind estate for debts; Porter v. 
 Long, 124 Mich. 593, 83 N. W. 601, holding surviving partner and executor not 
 entitled to compensation, aside from share of profits for managing nrm business; 
 
4 L.R.A. 493] L. R. A. CASES AS AUTHORITIES. 712 
 
 Re McCollum, 80 App. Div. 363, 80 N. Y. Supp. 755, holding authority not 
 conferred upon executor to continue business by oral request of testator; Thorn 
 v. de Breteuil, 86 App. Div. 421, 83 X. V. Supp. 849, denying that beneficiaries 
 can prevent business from being continued by executors as directed by will; 
 Roberts v. Hale, 124 Iowa, 300, 99 N. W. 1075, 1 A. & E. Ann. Gas. 940, holding 
 assets of estate liable for debts incurred by trustee in carrying on business 
 where will sets them apart for purposes of such business; Campbell v. Faxon, 
 73 Kan. 680, 5 L.R.A. (X.S.) 1005, 85 Pac. 760, holding administrator carrying on 
 business for estate without authority personally bound by contracts made in con- 
 duct of business but estate not bound; American Surety Co. v. McGuire, 54 Misc. 
 80, 103 N. Y. Supp. 753, holding that in action by surety on official bond of ad- 
 ministrator to have its liability determined and itself discharged, that creditor of 
 business carried on by administrator after his decedent's death, might intervene; 
 Thorn v. De Breteuil, 179 N. Y. 78, 71 N. E. 470, holding direction by testator 
 that his business shall be carried on will be construed as authority to carry it on 
 witli funds already invested in it at time of testator's death ; Re United States 
 Mortg. & T. Co. 114 App. Div. 536, 100 N. Y. Supp. 12, holding representative 
 carrying on business without authority not required to file itemized account of 
 receipts and disbursements therein, or vouchers for such disbursements; Manhat- 
 tan Oil Co. v. Gill, 118 App. Div. 19, 103 X. Y. Supp. 364, holding where executor 
 authorized to continue business but not authorized to involve general assets of es- 
 tate, persons dealing with him bound to know only property embarked in business 
 answerable; Farrelly v. Schaettler, 121 App. Div. 682, 106 X. Y. Supp. 445, 
 holding estate not liable for obligation created in connection with, but not as 
 part of, business executrix was carrying on under provisions of will ; Steele v. Leo- 
 pold, 335 App. Div. 257, 120 X. Y. Supp. 569, holding testator may direct that his 
 executors continue or open and conduct for given time speculative account for 
 benefit of estate. 
 
 Cited in notes (19 Eng. Rul. Cas. 516) on option of personal representative of 
 deceased partner to become partner; (40 L.R.A. (X.S.) 204, 205, 206, 207, 212, 
 214, 218, 224, 225, 226, 233, 234) on personal representative, testamentary trus- 
 tee, or guardian carrying on business. 
 
 Distinguished in Columbus Watch Co. v. Hodenpyl, 135 X. Y. 434, 48 N. Y. 
 S. R. 449, 32 X. E. 239, Affirming 61 Hun, 560, 16 X. Y. Supp. 337, holding where 
 executor continued testator's interest in business with surviving partner exe- 
 cution might issue, without surrogate's leave; Re Stern, 2 Connoly, 205, 9 N. Y. 
 Supp. 445, holding to same effect. 
 Liability for debts contracted by representative. 
 
 Cited in Rogers v. Wendell, 54 Hun, 544, 7 X. Y. Supp. 781, holding receiver 
 liable personally for services of agent in preservation of receivership property; 
 Meyer v. Lexow, 1 App. Div. 117, 37 X. Y. Supp. 67, holding temporary re- 
 ceiver cannot contract debts chargeable upon fund without court's authority; 
 Mulrein v. Smillie, 25 App. Div. 137, 48 X. Y. Supp. 994, holding mechanic, to 
 bind trust estate for repairs, must show contract contemplated charging estate; 
 Re Ginsburg, 27 Misc. 754, 59 X. 1. Supp. 656, holding landlord with personal 
 judgment against general assignee for rent, cannot look to estate for payment ; 
 Blum v. Dabritz, 39 Misc. 801, 81 X. Y. Supp. 315. holding estate not liable 
 for illegal eviction of tenant by executor; O'Brien v. Jackson, 167 X. Y. 35, 60 
 X. E. 238, Reversing 42 App. Div. 173, 58 X. Y. Supp. 1044, holding executors 
 and trustees making new contract as representatives and for estate's benefit, 
 liable individually; Hamlin v. Smith, 72 App. Div. 610, 76 X. Y. Supp. 258, 
 holding creditor loaning necessary money to executor individually for estate en- 
 titled to be subrogated to executor's right of reimbursement; American Surety 
 
713 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 495 
 
 Co. v. McDermott, 5 Misc. 299, 25 N. Y. Supp. 467, holding covenant by 
 receiver for "himself, his heirs, etc.," individual obligation; Valley Xat. Bank 
 v. Crosby, 108 Iowa, 654, 79 N. W. 383, holding administrator cannot bind es- 
 tate by contract except by statutory authority; Brackett v. Ostrander, 126 App. 
 Div. 535, ]10 X. Y. Supp. 779, holding rule that executors are personally liable 
 for their contracts, although made for benefit of estate which they represent, and 
 that such contracts may not be enforced directly against estate is not absolute 
 or unqualified. 
 
 - Cited in note (52 Am. St. Rep. 129) on liabilities of estates of decedents on 
 contracts and for torts of personal representatives. 
 
 K<i ii i t:i !>! cinim Huninst estate. 
 
 Cited in Mander v. Low, 12 Misc. 321, 33 N. Y. Supp. 719, holding necessary 
 pledge of credit of estate only enforceable in equity. 
 
 Distinguished in Norling v. Allee, 37 N. Y. S. R. 411, 13 N. Y. Supp. 791> 
 holding trustees not liable for injuries caused by fall of fence on property of 
 estate. 
 "Waiver of objections to pleadings. 
 
 Cited in Lane v. Wheelwright, 53 N. Y. S. R. 369, 23 N. Y. Supp. 576, 
 holding objection that different causes of action are not separated and num- 
 bered, not taken by demurrer or answer, waived. 
 Testator's power to interfere ivitb settlement of his estate. 
 
 Cited in Mills v. Smith, 193 Mass. 18, 6 L.R.A.(N.S.) 870, 78 N. E. 765, holding 
 contract not objectionable on ground it unreasonably and unlawfully interfered 
 with settlement of testator's estate. 
 
 4 L. R. A. 495, JONES v. BATES, 26 Neb. 693, 42 N. W. 751. 
 i.iii "<>' dealer's liability independent of sureties. 
 
 Cited in Uldrich v. Gilmore, 35 Neb. 291, 53 N. W. 135. holding invalidity of 
 sureties' bond does not affect dealer's personal liability for injury resulting from 
 furnishing intoxicating liquors. 
 
 Liability for resulting^ injury. 
 
 Cited in Murphy v. Gould, 40 Neb. 731, 59 N. W. 383, upholding instruc- 
 tion that party selling or giving liquor to another causing intoxication, liable 
 to latter's wife for any resulting injury to her means of support; Schiek v. 
 Sanders, 53 Neb. 669, 74 N. W. 39, holding liability not limited to cases in which 
 intoxication direct and proximate cause of, provided it contributed to, injury; 
 Cornelius v. Hultman, 44 Neb. 444, 62 N. W. 891, refusing to disturb ver- 
 dict of jury against defendant on issue whether or not defendant personally or 
 by his servants sold intoxicating liquor to deceased; Gorey v. Kelly, 64 Neb. 
 607, 90 N. W. 554, upholding instruction that wife and children are entitled to 
 compensation for loss of support caused by husband's intoxication; Stahnka 
 v. Kreitle. 66 Neb. 832, 92 X. W. 1 042, holding dealers jointly and severally liable 
 for failure of husband incapacitated by drinking of intoxicants to support wife 
 during time they contributed to such failure only. 
 
 Cited in footnote to Gage v. Harvey, 43 L. R. A. 143, which holds loss of money 
 taken from intoxicated person's pocket not included in damages from sale of 
 liquor to him. 
 Probable reformation of drunkard as affecting damages. 
 
 Disapproved in Stahnka v. Kreitle, 66 Neb. 832, 92 N. W. 1042, urging im- 
 probability that drunkard will reform if liquor is not furnished him by saloon- 
 keepers; Acken v. Tinglehoff, 83 Neb. 298, 119 N. W. 450, conceding drunkard 
 may reform, but denying any presumption that he will. 
 
4 L.R.A. 499] L. R. A. CASES AS AUTHORITIES. 714 
 
 4 L. R. A. 499, STRAFFORD v. SHARON, 61 Vt. 126, 17 Atl. 793, 18 Atl. 308. 
 Vested rights against municipal corporation. 
 
 Disapproved in Underbill v. Essex, 64 Vt. 32, 23 Atl. 617, holding no vested 
 right created in favor of adjoining towns by judgment apportioning expense oi 
 bridge upon town within which not situated. 
 Legislative control of municipalities. 
 
 Cited in note (48 L. R. A. 492) on power of legislature to impose burden* 
 on municipalities and to control their local administration and property. 
 
 4 L. R. A. 500, GOLDSMITH v. JOY, 61 Vt. 488, 15 Am. St. Rep. 923, 17 Atl. 
 
 1010. 
 Provocation As justification of assault. 
 
 Cited in Willey v. Carpenter, 64 Vt. 215, 15 L. R. A. 855, 23 Atl. 630, hold- 
 ing malignant speeches and taunts intended to provoke attack, not justification 
 of assault. 
 
 Cited in footnotes to Baltimore & O. R. Co. v. Barger, 26 L. R. A. 220, which 
 holds passenger's profane and abusive language not excuse carrier's liability for 
 assault by conductor; Berkner v. Dannenberg, 60 L. R. A. 559, which author- 
 izes consideration of abusive language in mitigation only, not justification, for 
 assault. 
 
 Cited in note (38 L.R.A.(N.S.) 518) on provocation less than an assault, as a 
 defense to a civil action for an assault and battery. 
 In mitigation of damages. 
 
 Approved in Grace v. Dempsey, 75 Wis. 324, 43 N. W. 1127, holding inad- 
 missible to mitigate actual damages; Mangold v. Oft, 63 Neb. 399, 88 N. W. 
 507, holding that threats cannot be shown in mitigation of compensatory 
 damages; Barrette v. Carr, 75 Vt. 428, 56 Atl. 93, holding actual damages can- 
 not be reduced by evidence of provocation ; Mahoning Valley R. Co. v. De 
 Pascale, 70 Ohio St. Ibo, 65 L. R. A. 863, 71 N. E. 633, holding that provocation 
 may be considered in mitigation of punitive damages only. 
 
 Cited in Marriott v. Williams, 152 Cal. 710, 125 Am. St. Rep. 87, 93 Pac. 875, 
 holding provocation to be considered only in reduction of, or set off against 
 exemplary damages; Armstrong v. Rhoads, 4 Penn. (Del.) 155, 53 Atl. 43.5. 
 to same effect; De Laurin v. Murray, 75 Ark. 238, 87 S. W. 131, holding only 
 provocation so recent as not to allow cooling time is competent to mitigate dam- 
 ages; and then mitigation extends only to exemplary damages; Warner v. Tal- 
 bot, 112 La. 830, 66 L.R.A. 343, 104 Am. St. Rep. 460, 36 So. 743, holding provo- 
 cation in mitigation of exemplary damages must be immediate. 
 
 Cited in footnote to Mahoning Valley R. Co. v. De Pascale, 65 L.R.A. 860, which 
 holds that words of provocation may be considered in mitigation of punitive, but 
 not of compensatory damages. 
 
 Cited in note (11 L.R.A. (N.S.) 671) on provocation as mitigating damages for 
 assault. 
 
 Disapproved in Genung v. Baldwin, 77 App. Div. 586, 77 N. Y. Supp. 569, 
 holding that provocation may be considered in reduction of compensatory dam- 
 
 Abusive language as justification for trespass. 
 
 Cited in Heath v. Hagan. 135 Iowa, 498, 113 N. W. 342, holding arrest not 
 justified if words used do not amount to breach of peace. 
 Right to punitive damages. 
 
 Cited in notes (28 Am. St. Rep. 871; 8 Eng. Rul. Cas. 378) on right to punitive 
 damages. 
 
715 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 503 
 
 4 L. R. A. 503, PRIESTLEY'S APPEAL, 127 Pa. 420, 17 Atl. 1084. 
 
 Followed without special discussion in Cutter's Appeal, 127 Pa. 435, 17 
 Atl. 1100. 
 Notice of :i<lm ini.st rator's settlement or of other judicial proceeding. 
 
 Cited in Ferguson v. Yard, 164 Pa. 596, 35 W. N. C. 433, 30 Atl. 517, holding 
 allegation of want of actual notice of settlement of administrator's account or oi 
 decree of distribution, immaterial where statutory notice has been given; Yocum 
 v. Commercial Nat. Bank, 195 Pa. 416, 46 Atl. 94, holding account of executor 
 showing erroneous payments cannot be subsequently attacked by administrator 
 d. b. n. c. t. a. after due advertisement, adjudication, and confirmation without 
 objection; Re Harrisburg & C. Turnpike, 2 Dauphin Co. Rep. 54, holding that 
 legislature may provide for service of notice by publication in condemnation pro- 
 ceedings; Tracy's Estate, 15 Montg. Co. L. Rep. 34, holding notice by advertis- 
 ing executor's account binding on all parties in interest; Sheet's Estate, 215 Pa. 
 172, 64 Atl. 413, holding allegation of want of actual notice of settling of ac- 
 count of administrator or of decree of distribution of no avail where it appears 
 notice provided by act of assembly has been given; Been's Estate, 30 Pa. Co. Ct. 
 368, 13 Pa. Dist. R. 695, holding notice by advertisement required by law, given 
 before adjudication of account, sufficient; Umbstaetter's Estate, 57 Pittsb. L. J. 
 605, 19 Pa. Dist. R. 1121, refusing to suspend decree of distribution for claim 
 not presented at audit of estate after due notice; Meeh's Estate, 24 Montg. Co 
 L. Rep. 97, 18 Pa. Dist. R. 69, holding notice of filing of account and of time 
 and place of audit duly given by advertisement as required by law and rule of 
 court sufficient. 
 Bill of review. 
 
 Cited in Re Adams, 183 Pa. 138, 38 Atl. 514, holding beneficiary not entitled 
 to bill to review trustee's account fifteen years after filing, where facts on which 
 impeached known at time of filing; Vastine's Estate, 190 Pa. 447, 44 W. N. C. 
 32, 42 Atl. 1038, holding trustee's account will not be opened after lapse of five 
 years on ground of excessive fees to trustee, where it was approved by cestui que 
 trust before filing and confirming; Seager's Estate, 6 Pa. Dist. R. 106; Boswell's 
 Estate, 6 Pa. Dist. R. 353, 19 Pa. Co. Ct. 537; Martin's Estate, 21 Pa. Co. Ct. 
 146, 7 Pa. Dist. R. 409; Kachline's Estate, 7 Pa. Super. Ct. 165; Bickford's Es- 
 tate, 16 Pa. Super. Ct. 575; Re Sugar Notch, 10 Kulp, 261; Rostonski's Estate, 
 7 Northampton Co. Rep. 215; Hensler's Estate, 17 Lane. L. Rev. 260; Bailey's 
 Estate, 208 Pa. 598, 57 Atl. 1095, holding bill of review allowable as matter 
 of right, only for error of law appearing upon face of record, or for new mattery 
 Straw's Estate, 10 Kulp, 140, refusing to grant application for review, where 
 denials in answer to petition are not overcome by two witnesses, or equivalent; 
 Lee's Estate, 9 Pa. Co. Ct. 662, 20 Phila. 136, 29 W. N. C. 348, denying petition 
 for review where made six years after discovery of note not included in guardian's 
 adjudicated account; Wright's Estate, 25 Pa. Co. Ct. 597, 32 Pittsb. L. J. N. S, 
 211, permitting bill of review where proceeds of real and personal estate were 
 mingled in administrator's account which was confirmed; State v. Illinois C. R. Co. 
 246 111. 244, 92 N. E. 814, holding that adjustment by governor of semi-annual 
 accounts of railroad can be reviewed by courts only for fraud, accident or mis- 
 take; Price's Estate, 29 Pa. Co. Ct. 450, 12 Pa. Dist. R. 693, holding review can 
 only be demanded as matter of right for error in law apparent on face of record 
 or for new matter which has arisen since decree; though as matter of grace it 
 my be granted for new proof which has since come to light, and which was 
 inaccessible at original hearing; Meeh's Estate. 24 Mont. Co. L. Rep. 97, 18 Pa. 
 Dist. R. 69, to same effect; Milliken's Estate, 36 Pa. Co. Ct. 188, holding account 
 passed and settled and confirmed reviewable as matter of right only for error 
 
4 L.R.A. 503] L. R. A. CASES AS AUTHORITIES. 716 
 
 of law apparent on record itself, or for new matter which has arisen since de- 
 cree: Guarantee Trust & S. D. Co. v. Stover, 17 Pa. Dist. R. 689, holding loss of 
 testimony taken by referee could not be regarded as affording affirmative testi- 
 mony in favor of petitioner to intervene, but on contrary evidence averred to 
 have been lost was not reviewable even if it had ; Barr's Estate, 43 Pa. Super. Ct. 
 544. denying review of executor's account for fraud in inducing testator to buy 
 stock, on petition presented ten years after purchase of stock, nine years after 
 testator's death and four years after confirmation of account. 
 
 Cited in footnote to Watkinson v. Watkinson, 69 L.R.A. 397, which holds that 
 bill of review cannot be filed after three years from final decree except in case 
 of new or newly discovered evidence. 
 
 Cited in note (30 L.R.A. (N.S.) 1032, 1040) on bill of review for newly dis- 
 covered evidence. 
 Conclusiveness of responsive answer. 
 
 Followed in Huston v. Harrison, 168 Pa. 151, 31 Atl. 987, holding responsive 
 answer conclusive when no contradictory evidence is offered. 
 Subscription to corporate stock. 
 
 Cited in footnote to Capps v. Hastings Prospecting Co. 24 L. R. A. 259, which 
 holds agreement to subscribe for stock within specified time from organization 
 not binding till company lawfully organized. 
 
 Cited in note (38 L. R. A. 490) on bonus stock of corporations. 
 Personal liability of stockholders. 
 
 Cited in Morse v. Pacific R. Co. 93 111. App. 37, holding legal, although not 
 equitable, owner of stock liable for debts of corporations; Sherwood v. Illinois 
 Trust & Sav. Bank, 195 111. 119, 88 Am. St. Rep. 183. 62 X. E. 835, holding stock- 
 holder personally liable although trustee, stock having been issued directly to him. 
 
 4 L.R.A. 507, WIXSTOX v. BROOKS, 129 ILL. 64, 21 X. E. 514. 
 Kiulu of corporation to dispose of stock. 
 
 Cited in Ross v. Sayler, 104 111. App. 24, holding corporation may sell stock 
 at price it chooses not prejudicing creditors or stockholders; Higgins v. Lansingh, 
 154 111. 336, 40 X. E. 302, holding excessive issue of stock for land as only capital 
 of corporation not fraud on corporation. 
 Liability of subscribers to stock. 
 
 Citec' in notes (29 Am. St. Rep. 165) on who are stockholders liable for unpaid 
 subscriptions; (31 Am. St. Rep. 650) on validity of agreements diminishing 
 stockholder's liability for unpaid subscriptions; (93 Am. St. Rep. 388) on lia- 
 bility to corporations of subscribers to stock. 
 
 4 L. R. A. 511, YVARDLE v. TOWXSEXD, 75 Mich. 385, 42 X. W. 950. 
 Insurance assessments Xotice. 
 
 Cited in Wardle v. Cummings, 86 Mich. 400, 49 X. W. 212, holding publica- 
 tion or substituted service of notice of assessment sufficient. 
 Liability for nncollected. 
 
 Cited in Insurance Commissioner v. Commercial Mut. Ins. Co. 20 R. I. 8, 
 3(i Atl. 930; Davis v. Shearer, 90 Wis. 258, 62 X. W. 1050; Peake v. Yule, 123 
 Mich. 682, 82 X. W. 514, holding member liable for proportionate share of 
 uncollectible assessments for losses occurring during life of policy; Equity Mut. 
 F. Ins. Corp. v. Murray, 131 Ky. 750, 115 S. W. 816, holding receiver of insolvent 
 mutual insurance association may assess solvent members thereof to make up 
 for inability of insolvent members to respond to assessments. 
 
717 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 519 
 
 Cited in note (32 L, R. A. 487, 501, 508) on liability of members of mutual 
 fire insurance company. 
 
 Distinguished in Ionia, E. & B. Farmers' Mut. F. Ins. Co. v. Otto, 97 Mich. 
 523, 56 N. W. 755, holding member liable for losses assessable at time of with- 
 drawal, but not for those subsequently occurring by reason of failure to collect. 
 
 Losses prior to date of policy. 
 
 Cited in Detroit Manufacturers' Mut. F. Ins. Co. v. Merrill, 101 Mich. 394, 
 59 N. W. 661, holding assessment void which included losses occurring prior to 
 ' date of policy. 
 
 Amount. 
 
 Cited in Ionia, E. & B. Farmers' Mut. F. Ins. Co. v. Davis, 100 Mich. 612, 
 32 L. R. A. 489, 59 X. W. 250, holding assessment of 30 per cent not unreasonable 
 where litigation probable; Nichol v. Murphy, 145 Mich. 430, 108 N. W. 704, 
 holding limitation in contract between policy holder and mutual insurance com- 
 pany cannot relieve members from liability to pay proportionate share of losses 
 and expenses of insolvent company for period during which they were members. 
 
 Distinguished in Collins v. Welch, 141 Mich. 678, 105 N. W. 31, holding member 
 of mutual fire insurance company could not attack assessment as excessive in 
 action against him by receiver to collect the amount assessed, but should have 
 made attack in direct proceeding. 
 Sufficiency of title of statute. 
 
 Cited in State ex rel. Sparks v. State Bank & T. Co. 31 Nev. 468, 103 Pac. 407, 
 upholding title to act creating board of bank commissioners. 
 
 Cited in notes (64 Am. St. Rep. 98) on sufficiency of title of statute; (79 Am. 
 St. Rep. 471) as to when title of statute embraces only one subject, and what 
 may be included thereunder. 
 
 4 L. R. A. 516. SUFFOLK SAV. BANK v. BOSTON, 149 Mass. 364, 21 N. E. 665. 
 Protection of bona fide holders of municipal bonds. 
 
 Cited in footnotes to Flagg v. School Dist. Xo. 70, 25 L. R. A. 363, which de- 
 nies right to question, as against bona fide purchaser, consideration of bonds 
 issued to pay audited claims; Wilkes County v. Call, 44 L. R. A. 252, which de- 
 nies possibility of anyone being a bona fide holder of county bonds issued under 
 unconstitutional statute. 
 
 Cited in note (51 Am. St. Rep. 824, 834) on municipal bonds in hands of bona 
 fide holders. 
 \\ l> are bona flde purchasers. 
 
 Cited in Wenz v. Pastene, 209 Mass. 363, L.R.A.(N.S.) , 95 N. E. 793, 
 holding that purchaser, on receiving notice of unrecorded lease after part pay- 
 ment under his contract, ceases to be bona fide purchaser. 
 
 4 L. R. A. 519, McINTIRE v. ROBERTS, 149 Mass. 450, 14 Am. St. Rep. 432, 
 
 22 N. E. 13. 
 Liability for injuries resulting- from dangrerous condition of premises. 
 
 Cited in Quigley v. Clough, 173 Mass. 430, 45 L. R. A. 502, 73 Am. St. Rep. 303, 
 53 N. E. 884. holding owner of house not liable to trespasser injured in dark by 
 barbed-wire fence maintained to prevent pedestrians crossing grass plot; Da neck 
 v. Pennsylvania R. Co. 59 N. J. L. 417, 59 Am. St. Rep. 613, 37 Atl. 59, holding 
 railway not liable for injuries caused by party driving team into unfenced rail- 
 road cut, where highway terminated 20 feet away in higher ground owned by 
 third party: Mead v. Strauss, 202 Mass. 401, 88 N. E. 889, holding abutter not 
 liable for injury sustained by lady in leaving his premises by reason of her 
 
4 L.R.A. 519] L. R. A. CASES AS AUTHORITIES. 718 
 
 gown catching upon stake on his land set near private walk connecting with side- 
 walk; Sheehan v. Bailey Bldg. Co. 42 Wash. 539, 85 Pac. 44, holding owner of 
 premises adjacent to street not required to anticipate or guard against unusual 
 and extraordinary occurrences. 
 
 Cited in note (26 L.R.A. 691) on liability for dangerous condition of private 
 grounds lying open beside highway or frequented path; (9 L. R. A. 643) on acci- 
 dents at elevator shafts; (25 Eng. Rul. Cas. 114) on liability for injury to tres- 
 passer by dangerous instrumentalities. 
 
 4 L. R. A. 521, CONVERSE v. HOOD, 149 Mass. 471, 21 N. E. 878. 
 Specific performance. 
 
 Cited in footnotes to Hodges v. Rowing, 7 L.R.A. 87, which holds specific per- 
 formance of contract for sale of land not defeated by remedy at law; Hearst v. 
 Putnam Min. Co. 66 L.R.A. 784, which denies right of holders of stock in cor- 
 poration whose property has been sold to maintain suit to enforce trust in such 
 property for their own benefit. 
 Necessity for injury in action based on fraud. 
 
 Cited in footnote to Kidd v. New Hampshire Traction Co. 66 L.R.A. 574, 
 which upholds right of stockholders whose officers have fraudulently transferred 
 its assets to another corporation to maintain suit in equity against latter for 
 rescission of contract or for damages without joining former corporation as 
 defendant. 
 
 Cited in notes (6 L.R.A. 150) on right of action for deceit; (12 Eng. Rul. Cas. 
 295) on what constitutes fraud and liability therefor. 
 
 4 L. R. A. 525, TRINKLE v. JACKSON, 86 Va. 238, 9 S. E. 986. 
 Sales of land "in gross." 
 
 Cited in Farrier v. Reynolds, 88 Va. 145, 13 S. E. 393, holding vendee not en- 
 titled to abatement of purchase price on sale of enclosed "Duncan farm, contain- 
 ing 56 acres, more or less" where no fraud, though farm contained but 41 acres; 
 Farris v. Hughes, 89 Va. 933, 17 S. E. 518, holding vendor entitled to specific per- 
 formance of contract of sale of enclosed tract of 282 acres expressly stipulated 
 to be in gross though deficient in quantity by 7 acres; Grayson v. Buchanan, 88 
 Va. 254, 13 S. E. 457, holding vendee entitled to abatement where vendor repre- 
 sented tract to contain 140 acres and spring, and in fact contained only 128 acres 
 and no spring; Berry v. Fishburne, 104 Va. 461, 51 S. E. 827, holding sale was 
 by acre and not in gross where proof of sale in gross was not clear, evidence 
 tending to show sale by acre. 
 
 Cited in footnote to Xewman v. Kay, 68 L.R.A. 908. which denies right of 
 vendor of land in gross to recover compensation or rescind contract because of 
 excess above supposed quantity. 
 
 Cited in note (11 L. R. A. 376) on relief of purchaser in case of mutual mis- 
 take in quantity of land sold. 
 
 4 L. R. A. 529, BRUEN v. GILLET, 115 N. Y. 10, 12 Am. St. Rep. 764, 21 N. 
 
 E. 676. 
 
 Liability of executors, administrators, and trustees for acts of asso- 
 ciates. 
 
 Cited in Re Cozzens, 2 Connoly, 625, 39 N. Y. S. R. 389, 15 N. Y. Supp. 771, 
 and Nanz v. Oakley, 120 N. Y. 89, 9 L. R. A. 227, 24 N. E. 306, holding executors 
 jointly responsible for joint acts and separately answerable for separate acts 
 and defaults; Cocks v. Haviland, 124 X. Y. 429, 26 N. E. 976, holding mere 
 passiveness of executor does not make him liable for waste of coexecutor; Re 
 
719 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 535 
 
 Westerfield, 32 App. Div. 340, 53 X. Y. Supp. 25, holding when trustee learns of 
 default of cotrustee he must inform cestui que trust ; Re Westerfield, 48 App. 
 Div. 544, 63 X. Y. Supp. 10, holding rule as to liability of executor for devastavit 
 of coexecutor applies to testamentary trustees; Re Blauvelt, 131 N. Y. 252, 30 
 X. E. 194, holding executrix not liable for coexecutrix's waste of proceeds of sale 
 made by latter under power in will; Purdy v. Lynch, 145 N. Y. 473, 40 N. E. 
 232, Reversing 72 Hun, 276, 25 N. Y. Supp. 775, holding two trustees not liable 
 for funds which came solely without negligence into hands of third trustee; 
 Thompson v. Hicks, 1 App. Div. 280, 37 N. Y. Supp. 340, and Re Litzenberger, 85 
 Hun, 516, 33 X. Y. Supp. 155, holding executor liable for waste where funds are 
 by him placed in hands of coexecutor; Briggs v. Spaulding, 141 U. S. 151, 35 
 L. ed. 670, 11 Sup. Ct. Rep. 924, holding bank directors must exercise reasonable 
 supervision over bank business; Farmers Loan & T. Co. v. Pendleton, 179 N. Y. 
 494, 72 X. E. 508, holding trustee not liable for fund in hands of cotrustee unless 
 fund subsequently comes into his hands, or is dissipated by reason of his negli- 
 gence or with his consent; Re Johnson, 42 Misc. 655, 87 N. Y. Supp. 733, holding 
 executor not liable for amounts received by coexecutor representing checks turned 
 over to him by executor, but liable for moneys turned over to coexecutor where 
 testimony failed to disclose what was done with it; Re Dougherty, 43 Misc. 472, 
 89 X. Y. Supp. 549, holding executor responsible for negligence in allowing assets 
 of estate to come into hands of coexecutor who lost them in private speculation; 
 Re Mallon, 43 Misc. 570, 89 X. Y. Supp. 554, on liability of executor who remains 
 passive and allows coexecutor to deplete estate; Re Provost, 87 App. Div. 89, 
 84 X. Y. Supp. 29, holding administratrix who indorsed check payable to herself 
 and coadministrator, who obtained money thereon and appropriated it so it 
 was lost to estate, not liable as having received money; Re Hunt, 88 App. Div. 
 55, 84 X. Y. Supp. 790, holding that where property, funds, or assets of estate 
 have once come into joint control or joint possession of trustees, it is duty of 
 each to see fund does not go out of his control or possession unless applied to 
 fulfilment of trust; Palmer v. Ward, 91 App. Div. 451, 86 X. Y. Supp. 990, hold- 
 ing administrator responsible who signed joint checks which permitted coadmin- 
 istrator to draw upon joint account and thus obtain money, but not liable in 
 absence of negligence for money drawn from bank by coadministrator on his sole 
 signature, nor for indorsing check payable to administrators jointly and leaving 
 it with coadministrator for deposit; Re Halsted, 110 App. Div. 911, 95 X. Y. 
 Supp. 1131 (dissenting opinion), majority however affirms 44 Misc. 176, 89 X. Y. 
 Supp. 806, on opinion of surrogate which holds delivery of bonds to cotrustee 
 for deposit and formal execution of assignment of mortgage would not make 
 trustee liable. 
 
 Cited in note (11 L.R.A. (X.S.) 322) on liability of coexecutor for default of 
 one permitted to manage estate. 
 
 4 L. R. A. 535, PURPLE v. FARRIXGTOX, 119 Ind. 164, 21 N. E. 543. 
 Waiver of answer. 
 
 Cited in Havens v. Gard, 131 Ind. 523, 31 X. E. 354, holding quite doubtful 
 whether submitting to trial without answer does not waive it; Schnull v. Mc- 
 Pheeters, 12 Ind. App. 511, 40 X. E. 758, holding answer waived in attachment 
 after plaintiffs proceed to trial and introduce evidence; Helton v. Wells, 12 Ind. 
 App. 608, 40 X. E. 930, holding reply to affirmative answer waived on proceeding 
 to trial; First Xat. Bank v. Farmers' & M. Xat. Bank. 171 Ind. 332, 84 N. E. 417, 
 holding failure of parties to answer not admission of allegations against them. 
 Preference of individual over partnership or corporate creditors. 
 
 Cited in Studebaker Bros. Mfg. Co. v. Bird, 119 Ind. 429, 21 X. E. 1086, hold- 
 
4 L.R.A. 535] L. R. A. CASES AS AUTHORITIES. 720 
 
 ing individual creditor may secure indebtedness out of partnership assets to ex- 
 clusion of partnership creditors; Johnson v. McClary, 131 Ind. 106, 30 N. E. 888, 
 holding partnership receiver cannot attach transfer of firm property to secure 
 bona fide debts of individual partners; Henderson v. Indiana Trust Co. 143 Ind. 
 566, 40 N. E. 516, upholding right of insolvent corporation to prefer any claims 
 although secured by indorsements of directors and part of stockholders; Sim- 
 mons Hardware Co. v. Thomas, 147 Ind. 320, 46 X. E. 645, upholding bona fide 
 partnership mortgage to secure individual indebtedness of partners; Selz, S. & 
 Co. v. Slayer, 151 Ind. 429, 51 X. E. 485, upholding sale of partnership property 
 against creditors of firm; Mannen v. Bailey, 51 Kan. 447, 32 Pac. 1085, uphold- 
 ing mortgage securing individual debt of partner furnishing whole capital of 
 the business; Mansur-Tebbetts Implement Co. v. Ritchie, 159 Mo. 225, 60 S. W. 
 87; Noyes v. Ross, 23 Mont. 435, 47 L. R. A. 405, 75 Am. St. Rep. 543, 59 Pac. 
 367; Bedford v. McDonald, 102 Tenn. 365, 52 S. W. 157; Reyburn v. Mitchell, 106 
 Mo. 373, 27 Am. St. Rep. 350, 16 S. W. 592, holding bona fide waiver of part- 
 ners' equities destroys derivative equities of creditors; Kincaid v. National Wall- 
 paper Co. 63 Kan. 291, 54 L. R. A. 414, 88 Am. St. Rep. 243, 65 Pac. 247, and 
 Re Edwards, 122 Mo. 431, 29 L. R. A. 687, 25 S. W..904, holding assets of in- 
 solvent firm may in good faith be applied to individual debts of partners ; Ex- 
 celsior Mill Co. v. Hanover, 102 Wis. 316, 78 X. W. 737 (concurring opinion), 
 as to validity of conveyance of insolvent firm assets to pay individual partner's 
 debt. 
 
 Cited in footnote to Kincaid v. Xational Wall Paper Co. 54 L. R. A. 412, 
 which sustains right of partners to appropriate, with other partners' consent, in- 
 terest in firm to pay individual in preference to firm debts. 
 
 Cited in notes (9 L. R. A. 417) on validity of voluntary conveyance; (29 L. R, 
 A. 682) on assumption by partnership of individual debts of partners; (2 L.R.A. 
 (X.S.) 256) on right of partnership as against firm creditors to sell or mortgage 
 firm property to discharge or secure member's individual debt; (14 Am. St. Rep. 
 725; 43 Am. St. Rep. 374) on partner's disposal of property for individual debts. 
 
 Distinguished in State ex rel. Miller v. Day, 3 Ind. App. 160, 29 X. E. 436^ 
 holding partners cannot waive equities so as to defeat fixed liens. 
 
 Disapproved in effect in Jackson Bank v. Durfey, 72 Miss. 977, 31 L. R. A. 471, 
 48 Am. St. Rep. 596. 18 So. 456, holding insolvent partners cannot use assets 
 of insolvent partnership to prefer individual creditors. 
 
 4 L. R. A. 538, RUSSELL v. CEDAR RAPIDS IXS. CO. 78 Iowa, 216, 42 X. 
 
 W. 654. 
 Parol evidence rnle. 
 
 Cited in note (5 L. R. A. 638) on varying of terms of insurance contract. 
 Conditions in fire policy. 
 
 Cited in Martin v. Capital Ins. Co. 85 Iowa, 650, 52 N. W. 534, holding policy 
 upon dwelling-house not invalidated under clause concerning change or increase 
 of risk, by use for unauthorized purpose; Collins v. Merchants & B. Mut. Ins. 
 Co. 95 Iowa, 543, 58 Am. St. Rep. 438, 64 X. W. 602, holding mortgage not in- 
 crease of risk as matter of law; Kansas Farmers' F. Ins. Co. v. Saindon, 52 
 Kan. 494, 39 Am. St. Rep. 356, 35 Pac. 15, holding renewal or substitution of 
 mortgages not increase of risk; Greenlee v. Xorth British & M. Ins. Co. 102 
 Iowa, 432, 63 Am. St. Rep. 455, 71 X. W. 534, holding subjecting property to 
 judgment and execution sale, under mechanics' lien filed at date of policy, not 
 presumed increase of hazard ; Gerling v. Agricultural Ins. Co. 39 W. Va. 697, 20 
 S. E. 691, holding judgment in invitum not within provision invalidating policy 
 if subject-matter becomes encumbered with judgment; Schloss v. Westchester F 
 
721 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 543 
 
 Ins. Co. 141 Ala. 574, 109 Am. St. Rep. 58. 37 So. 701, holding sale by insured 
 without change of possession attended immediately by resale which leaves in- 
 sured with same title he had at beginning not alienation within provisions of 
 policy. 
 
 Cited in footnotes to Kircher v. Milwaukee Mechanics Mut. Ins. Co. 5 L. R. A. 
 779, which holds policy on dwelling-house not forfeited by shaving hoops in it 
 previous to fire; Walton v. Agricultural Ins. Co. 5 L. R. A. 677, which holds 
 policy to husband and wife avoided by conveyance to wife through third person; 
 State Ins. Co. v. Schreck, 6 L. R. A. 524, which holds policy on all personalty 
 without specifying it, avoided by transfer of title, only as to property encumbered 
 at time of loss; Blackwell v. Miami Valley Ins. Co. 14 L. R. A. 431, which holds 
 taking partner in business not sale avoiding policy; Olney v. German Ins. Co. 
 13 L. R. A. 684, which holds chattel mortgage by partner on firm property 
 a change of "interest." 
 
 Cited in notes (11 L. R. A. 345) on contracts of fire insurance; (10 L. R. 
 A. 359) on effect of provision against increase of risk; (11 L. R. A. 293) on 
 conditions in fire policy against transfer and alienation of interest; (107 Am. St. 
 Rep. 122) on waiver of provisions of nonwaiver or written waiver of conditions 
 and forfeitures in policies. 
 Opinion evidence. 
 
 Cited in Warshawky v. Anchor Mut. F. Ins. Co. 98 Iowa, 225, 67 N. W. 237, 
 holding evidence that unauthorized use of building insured increased risk con- 
 trary to policy, admissible in action thereon; Krell v. Chickasaw Farmer's Mut. 
 F. Ins. Co. 127 Iowa, 751, 104 X. \V. 364, holding, it seems, testimony of ex- 
 perienced person that use of feed cooker in barn increases hazard of fire is not 
 open to objection. 
 
 Distinguished in Lee v. Agricultural Ins. Co. 79 Iowa, 381, 44 N. W. 683, hold- 
 ing opinion evidence as to increase of hazard properly excluded where witness's 
 experience or knowledge not shown. 
 
 Disapproved in Penn Mut. L. Ins. Co. v. Mechanics' Sav. Bank & T. Co. 38 
 L. R. A. 61, 19 C. C. A. 300, 37 U. S. App. 692, 72 Fed. 427, holding insurance 
 expert may not testify as to his opinion as to whether undisclosed or misrepre- 
 sented facts were material to risk. 
 Xotice. 
 
 Cited in German Ins. Co. v. Heiduk, 30 Neb. 297, 27 Am. St. Rep. 402, 46 N. W. 
 481, holding notice to local agent of additional insurance not notice to company, 
 where policy provides that no notice to agent shall affect conditions until in- 
 dorsed. 
 
 Cited in notes (10 L. R A. 145) on rescission of insurance by insured; (8 L. 
 R. A. 719) on termination of contract of insurance and notice thereof. 
 
 4 L. R. A. 543, ALTENBURG v. COM. 126 Pa. 602, 17 Atl. 799. 
 Who prohibited from furnishing: liquor. 
 
 Cited in Re Bucks County Prison, 15 Pa. Co. Ct. 582, holding furnishing of 
 liquor by sheriff and others to prisoners, within condemnation of statute ; Com. v. 
 Herman, 4 Pa. Dist. R. 414, holding wrongful intent necessary to conviction of 
 one charged with furnishing liquors to minors on Sunday; Com. v. Heckler, 36 
 \V. X. C. 364, Reversing 14 Pa. Co. Ct. 467 (Quarters Sessions), holding gift of 
 drink on Sunday while soliciting votes for coming election on premises of voter 
 unlawful. (Reversed in Supreme Court); People v. Bird, 138 Mich. 33, 67 
 L.R.A. 425, 110 Am. St. Rep. 299, 100 X. W. 1003. 4 A. & E. Ann. Cas. 1062, 
 holding person furnishing minor in his home with liquor not liable under statute 
 for furnishing liquor to minor; Com. v. Quick, 31 Pa. Co. Ct. 543, 15 Pa. Dist. 
 L.R.A. Au. Vol. I. 46. 
 
4 L.R.A. 543] L. R. A. CASES AS AUTHORITIES. 722 
 
 R. 261, holding furnishing of liquor by adult man to girl between fourteen and 
 fifteen years of age, who is under charge of probation officer of juvenile court as 
 delinquent child affects public morals, concerns community, and is cognizable 
 by court; Com. v. Miller, 38 Pa. Co. Ct. 270, 20 Pa. Dist. R. 917, on whether it is 
 misdemeanor to furnish liquor to one's minor or intemperate children or guests. 
 
 Cited in notes (9 L.R.A. 814) on construction of liquor laws of Pennsylvania; 
 (21 L.R.A. (N.S.) 135) on social treating as offense under liquor law. 
 
 Distinguished in Com. v. Carey, 151 Pa. 372, 25 Atl. 140, upholding right to 
 furnish guests with liquor, though minors and on Sunday; Austin v. State, 22 
 Ind. App. 230, 53 N. E. 481, holding furnishing of liquor to guests on New Year's 
 day not violation of statute prohibiting sale or gift of liquor on legal holiday. 
 Power of state over sale of liquor. 
 
 Cited in Vail's Application, 20 Pa. Dist. R. 655, refusing application for license 
 where liquors were sold to persons of intemperate habits after notice. 
 
 Cited in footnote to State ex rel. Galle v. New Orleans, 67 L.R.A. 70, which 
 denies right to refuse liquor license on objection of minority property holders 
 or on ground that no more barrooms are needed. 
 
 Cited in note (7 L. R. A. 296) on right of state to prohibit manufacture and 
 sale of spirituous liquors. 
 Former acquittal as defense. 
 
 Cited in Com. v. Montross, 8 Pa. Super. Ct. 242, holding evidence of acquittal 
 of selling liquor on Sunday properly excluded on trial of same defendant for 
 selling without license; Com. v. Tadrick, 1 Pa. Super. Ct. 567, 38 W. N. C. 218, 
 holding accused entitled on general issue to readmission of evidence rendered 
 nugatory by adverse decision on plea of autrefois. acquit; Muckenfuss v. State, 
 55 Tex. Crim. Rep. 230, 20 L.R.A.(N.S.) 785, 131 Am. St. Rep. 813, 116 S. W. 51, 
 16 A. & E. Ann. Cas. 768, holding theater giving more than one performance 
 on Sunday not punishable for each performance under statute prohibiting keeping 
 place of amusement open on Sunday; Com. v. Bur well, 59 Pittsb. L. J. 718, 15 
 Luzerne Leg. Rep. 427, 38 Pa. Co. Ct. 682, holding that district attorney, where 
 indictment includes charge of previous conviction of like offense, should move 
 for double-time sentence. 
 
 Cited in notes (31 L.R.A. (N.S.) 713) on right to convict for several offenses 
 growing out of same facts; (92 Am. St. Rep. 155) on identity of offenses on plea 
 of former jeopardy. 
 
 Distinguished in Com. v. Jonea, 33 Pa. Co. Ct. 127, 15 Pa. Dist. R. 937, holding 
 sale of liquor on Sunday by unlicensed person warrants conviction both for crime 
 of selling liquor without license and for selling liquor on Sunday. 
 
 4 L. R. A. 545, INTERNATIONAL & G. N. R. CO. v. TISDALE, 74 Tex. 8, 11 
 
 S. W. 900. 
 Liability of connecting: carriers. 
 
 Cited in Ft. Worth & D. C. R. Co. v. Fuller, 3 Tex. Civ. App. 341, 22 S. W. 
 1006, holding several carriers are partners in such sense as to render each liable 
 for negligence of others; Miller v. Texas & N. 0. R. Co. 83 Tex. 521, 18 S. W. 
 954, holding joint liability between railway on which injury resulted and that 
 executing bill of lading not presumed from fact of hauling car and collecting 
 charges; International & G. N. R. Co. v. Campbell, 1 Tex. Civ. App. 510, 20 S. W. 
 845, holding connecting line bound to carry shipper of stock on pass of shipping 
 railway; Gulf, C. & S. F. R. Co. v. Wilbanks, 7 Tex. Civ. App. 494, 27 S. W. 
 302, holding each connecting carrier liable for negligence in shipments of freight 
 over lines of others, notwithstanding stipulation limiting liability. 
 
 Cited in notes (31 L.R.A.(N.S.) 45, 46, 94, 95, 97) on liability of connecting 
 
723 L- R. A. CASES AS AUTHORITIES. [4 L.R.A. 545 
 
 carrier for loss beyond own line; (22 Am. St. Rep. 58) on presumption as to 
 where loss occurred in case of connecting carriers. 
 
 Distinguished in Texas & N. 0. R. Co. v. Gray, 45 Tex. Civ. App. 211, 99 S. W. 
 1125, holding a petition by plaintiff charging that the agent of the initial carrier 
 was the agent of defendant a connecting carrier and they all acted together as 
 the agent of each other did not charge a partnership between the connecting lines. 
 Limitation of carrier's liability. 
 
 Distinguished in Missouri P. R. Co. v. Edwards, 78 Tex. 312, 14 S. W. 607, 
 holding stipulation in shipping contract that liability of company for total loss 
 of stock should in no case exceed specified amount per head, invalid. 
 Strikes as defense. 
 
 Cited in Southern P. R. Co. v. Johnson, 4 Tex. App. Civ. Gas. (Willson) 69, and 
 Missouri P. R. Co. v. Levi, 4 Tex. App. Civ. Cas. (Willson) 129, holding inter- 
 ference by strikers defense to action for nondelivery of freight in reasonable 
 time. 
 JYeeessity of verified denial. 
 
 Cited in McCormick Harvesting Mach. Co. v. Slover, 4 Tex. App. Civ. Cas. 
 (Willson) 397, holding plea of non est factum in action on written instrument 
 must be sworn to; Gulf, C. & S. F. R. Co. v. Wilson, 7 Tex. Civ. App. 131, 26 
 S. W. 131, holding unverified answer denying existence of partnership between 
 carriers admits such allegation; Gulf, C. & S. F. R. Co. v. Edloff, 89 Tex. 456, 34 
 S. W T . 414, and Atchison, T. & S. F. R. Co. v. Grant, 6 Tex. Civ. App. 680, 26 S. W. 
 286, holding partnership between carriers admitted by failure to deny by verified 
 answer; Gulf, C. & S. F. R. Co. v. Wilbanks, 7 Tex. Civ. App. 493, 27 S. W. 302, 
 holding assumption in charge to jury of partnership between carriers proper 
 when not denied under oath; International & G. N. R. Co. v. Anderson, 3 Tex. 
 Civ. App. 11, 21 S. W. 691, holding shipping contract properly admitted in evi- 
 dence where allegation of petition that was executed by connecting carriers as 
 defendant's agent, is not denied under oath, though contract does not show that 
 it was so executed; Missouri, K. & T. R. Co. v. Stoner, 5 Tex. Civ. App. 73, 23 
 S. W. 1020, holding ratification by one carrier of contract with another must 
 be alleged or proven; Ft. Worth & D. C. R. Co. v. Johnson, 5 Tex. Civ. App. 26, 
 23 S. W. 827, holding burden on plaintiff to show connection of railway with 
 execution of bill of lading where allegation of partnership with initial carrier is 
 denied under oath; Smith v. Western U. Teleg. Co. 84 Tex. 363, 31 Am. St. Rep. 
 59, 19 S. W. 441, holding denial under oath of existence of partnership of tele- 
 graph company with line from which it received message for transmission to 
 other point unnecessary when not alleged in petition; International & G. N. R. 
 Co. v. Ing, 29 Tex. Civ. App. 399, 68 S. W. 722, holding that passenger ejected 
 from train need not prove execution and issuance of ticket by railroad company 
 which does not plead non est factum. 
 
 Distinguished in Dillingham v. Fischl, 1 Tex. Civ. App. 552, 21 S. W. 554, hold- 
 ing denial of allegation not contained in petition unnecessary. 
 Liability of carrier of live stock. 
 
 Cited in footnote to Good v. Galveston, H. & S. A. R. Co. 4 L.R.A. 801, which 
 holds carrier liable for needless delay, confinement, and bruising of live stock. 
 Admission by failure to deny allegations of pleading. 
 
 Cited in International & G. N. R. Co. v. Ing, 29 Tex. Civ. App. 399, 68 S. W. 
 722, holding in an action for wrongful ejectment from a train plaintiff who al- 
 leges his ticket was issued by defendant need not prove such issuance where such 
 allegation is not denied. 
 
4 L.R.A. 549] L. R. A. CASES AS AUTHORITIES. 724 
 
 4 L.R.A. 549, LOUISVILLE, X. A. & C. R. CO. v. HART, 119 IXD. 273, 21 X. 
 
 E. 753. 
 Liability for fire spreading- to other land. 
 
 Cited in Lake Erie & W. R. Co. v. Clark, 7 Ind. App. 156. 52 Am. St. Rep. 442,. 
 34 X. E. 587; Pittsburgh, C. C. & St. L. R. Co. v. Iddings, 28 Ind. App. 512, 62 
 X'. E. 112, Cleveland, C. Cfl & St. L. R. Co. v.o Hadlt-y. 12 Ind. App. 523, 40 X. E. 
 760; Chicago & E. R. Co. v. Bailey, 19 Ind. App. 167, 40 X. E. G88, holding 
 railroad liable for fire due to accumulated material on its right of way; Fien v. 
 Louisville, N. A. & C. R. Co. 15 Ind. App. 308, 44 X. E. 45, holding railroad 
 liable for fire spreading on its own land without efforts by its employees to put 
 it out; Lake Erie & W. R. Co. v. Miller, 24 Ind. App. 664, 57 X. E. 596, holding 
 railroad liable for negligently permitting fire, set upon its own land, to escape; 
 Pittsburgh, C. C. & St. L. R. Co. v. Indiana Horseshoe Co. 154 Ind. 331, 56 X. E. 
 766. holding railroad negligent for permitting accumulation of dry material, and 
 not attempting to put out fire; Pittsburgh, C. C. & St. L. R. Co. v. Wise, 36 Ind. 
 App. 63, 74 N. E. 1107, on liability of railroad company where fire spreads from 
 right of way to adjoining land. 
 
 Cited in footnote to Xorfolk & W. R. Co. v. Fritts, 68 L.R.A. 864, which sus- 
 tains liability for fire of railroad company unnecessarily running heavy freight 
 train up grade at doiible its scheduled speed in dry season and during heavy wind. 
 
 Cited in note (9 L. R. A. 750) on duty and obligation of railroad company to 
 guard against setting of fire. 
 Special verdict. 
 
 Cited in Cincinnati, I. St. L. & C. R. Co. v. Grames, 8 Ind. App. 142, 34 N. E. 
 613, holding instructions as to negligence and contributory negligence improper 
 when special verdict to be returned; Louisville, X. A. & C. R. Co. v. Lynch, 147 
 Ind. 174, 34 L. R. A. 296. 44 X. E. 997, holding general instructions inappropriate 
 Nfhere special verdict required; Cook v. McXaughton, 128 Ind. 417, 28 X. E. 74, 
 holding special verdict not too defective to warrant judgment when it finds all 
 facts necessary to recovery; Lake Shore & M. S. R. Co. v. Stupak, 123 Ind. 224, 
 23 N. E. 246, holding submission of draft of special verdict by opponent cannot be 
 objected to because of omission of facts; Xicodemus v. Simons, 121 Ind. 569, 23- 
 X. E. 521, holding facts, about which special verdict silent, treated as though 
 found against party required to prove them : Western U. Teleg. Co. v. Xewhouse, 
 6 Ind. App. 423, 33 X. E. 800, holding court must charge jury as to law gov- 
 erning measure of damages where special verdict required rendering them; Ross 
 v. Hobson, 131 Ind. 169, 26 X. E. 775: Hamilton v. By ram. 122 Ind. 286, 23 
 X. E. 795; Xicodemus v. Simons, 121 Ind. 566, 23 X. E. 521; Citizens Bank v. 
 Bolen, 121 Ind. 304, 23 X. E. 146, holding renirc de novo not proper remedy 
 when special finding not defective in form ; Germania F. Ins. Co. v. Columbia 
 Encaustic Tile Co. 11 Ind. App. 388, 39 X. E. 304, holding venire de novo not 
 proper remedy for finding mere evidenciary facts in special verdict; Evansville & 
 T. H. R. Co. v. Tait, 2 Ind. App. 242, 28 X. E. 443. holding failure to find on 
 particular matter in issue no ground for venire de novo; Roller v. Kling, 150 
 Ind. 162, 49 X. E. 948, holding general instructions in case of special verdict 
 harmless. 
 Effect of fnilnre to find. 
 
 Cited in Atchison, T. & S. F. R. Co. v. Johnson, 3 Okla. 53, 41 Pac. 641, holding 
 answer by the jury that they did not know whether conductor knew injured 
 party was on train equivalent to finding he did not know it; Cochran v. Thomas, 
 131 Mo. 278. 33 S. \V. 6, holding refusal of court to state conclusion of law equiva- 
 lent to its being held immaterial : Manor v. Jay County. 137 Ind. 390, 34 N. E. 
 959, holding failure by court to find material fact equivalent to finding it against 
 
725 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 555 
 
 part\ T required to prove it: Chicago & E. R. Co. v. Field, 7 Ind. App. 176. 52 
 Am. St. Rep. 444, 34 X. E. 406, holding failure to find party a passenger equiva- 
 lent to finding he was not; Pittsburg, C. C. & St. L. R. Co. v. O'Brien, 142 Ind. 
 222, 41 N. E. 528, holding failure to find right of possession in action for pos- 
 session of real estate equivalent to finding against right; Belshaw v. Chitwood, 
 141 Ind. 381, 40 X. E. 908, and Racer v. Wingate, 138 Ind. 126, 36 N. E. 538, 
 holding verdict, silent as to essential fact, equivalent to finding against party 
 with burden of proof. 
 Variance between allegations and proof. 
 
 Cited in Southern Indiana R. Co. v. Hoggatt, 35 Ind. App. 349, 73 X. E. 1096, 
 holding where plaintiff alleged injuries were due to the defective condition of 
 handle-bar and cog-wheel of hand car, proof that the handle-bar was negligently 
 allowed to become defective would entitle plaintiff to recover although no proof 
 of defective cog-wheel was offered. 
 
 4 L. R. A. 555, MOORE v. KEXOCKEE TVVP. 75 Mich. 332, 42 X. W. 944. 
 Constructive notice. 
 
 Cited in Campbell v. Kalamazoo, 80 Mich. 661, 45 X. W. 652, holding munici- 
 pality need not have actual notice or knowledge of defective sidewalks; Randall 
 v. Southfield Twp. 116 Mich. 504, 74 X. W. 716, and Blank v. Livonia Twp. 95 
 Mich. 234, 54 X. W. 877, holding question for jury whether highway commis- 
 sioner, by repairing bridge, had notice of its defects; Alberts v. Vernon, 96 
 Mich. 550, 55 X. W. 1022, holding evidence of others tripping on defective 
 walk before accident competent, as bearing upon constructive notice; Corey v. 
 Smalley, 106 Mich. 260, 58 Am. St. Rep. 474, 64 X. W. 13, holding possession 
 of land by contract purchaser constructive notice of his rights; Aben v. 
 Ecorse Twp. 113 Mich. 11, 71 X. W. 329, holding notice of defective condition 
 of bridge question for jury, under circumstances of case; Snyder v. Albion, 113 
 Mich. 280, 71 X. W. 475, holding long-standing defects sufficient to arrest at- 
 tention of passers-by, constructive notice; McEvoy v. Sault Ste Marie, 136 Mich. 
 175, 98 X. W. 1006. holding actual notice to superintendent of city streets of an 
 obstruction is notice to the city. 
 
 Cited in footnote to Thomas v. Flint, 47 L. R. A. 499, which holds mere 
 existence of defect in bridge for two or three days not constructive notice to city. 
 
 Distinguished in Thomas v. Flint, 123 Mich. 12, 47 L. R. A. 501, 81 X. W. 936, 
 holding liability cannot be predicated on failure to make inspections merely. 
 Effect of new law upon rights accruing- under former statute. 
 
 Cited in Dennison v. Allen, 106 Mich. 300, 64 X. W. 38, holding pending 
 suit not affected by repealing act without saving clause, substantially re-enact- 
 ing law repealed; Brady v. Hayward, 114 Mich. 331, 72 X. W. 233, holding pro- 
 ceedings under statute not terminated by subsequent amendment; Atty. Gen. 
 v. Railroad Commissioners, 117 Mich. 480, 76 X. W. 69, holding statute re- 
 vising whole subject of former statute, intended as substitute, repeals by im- 
 plication; Reynolds v. Bowen, 138 Ind. 450, 36 X. E. 756, holding re-enactment 
 of section of old law keeps section in force without interruption; State v. Kates, 
 149 Ind. 48, 48 X. E. 365, holding re-enactment not a repeal of a statute; White 
 Sowing Mach. Co. v. Harris, 161 111. App. 131 (dissenting opinion), on whether 
 foreign corporation which has complied with law as to license to do business 
 must comply with new act on same subject; Sayer v. Brown, 119 Ga. 547, 46 S. 
 E. 649, holding an act is not repealed by a subsequent act which provides that 
 certain section of the former act be stricken out and new matter enacted in lieu 
 thereof; People v. Schoenberg, 161 Mich. 94, 125 X. W. 779, holding the substan- 
 tial re-enactment by repealing statute without a saving clause, of the laws re- 
 
4 L.R.A. 555] L. R. A. CASES AS AUTHORITIES. 726 
 
 pealed will not affect pending suits; Great Northern R. Co. v. United States, 84 
 C. C. A. 93, 155 Fed. 950; State ex rel. Ruesswig v. McDonald, 101 Minn. 354, 112 
 N. W. 278, on the amendment or revision of a statute as not affecting proceed- 
 ings pending. 
 
 Cited in footnote to Tufts v. Tufts, 16 L. R. A. 482, which holds cause of ac- 
 tion for divorce not taken away by repeal of statute. 
 
 Cited in note (5 L. R. A. 315) on when repeal of statute does not affect prior 
 suit. 
 
 Distinguished in Detroit v. Chapin, 108 Mich. 143, 37 L. R. A. 398, 66 N. W. 
 587, holding proceedings under law repealed by materially different act, without 
 saving clause, terminated thereby. 
 Municipal duty as to bridges. 
 
 Cited in note (27 L.R.A. (N.S.) 833) on municipal duty to construct and main- 
 tain bridges in condition to sustain unusual weight. 
 Expert evidence. 
 
 Cited in Dardanelle Pontoon Bridge & Turnp. Co. v. Crooin, 95 Ark. 290, 30-' 
 L.R.A.(N.S.) 366, 129 S. W. 280, admitting opinion of expert that guard rail of 
 toll bridge was improperly constructed. 
 Adin ii ii III y of evidence of similar conditions. 
 
 Cited in Lamed v. Vanderlinde, 165 Mich. 468, 131 X. W. 165, holding inad- 
 missible, evidence of other accidents at place of injury to show its dangerous 
 condilfon. 
 
 4 L. R. A. 561, NASH v. JEWETT, 61 Vt. 501, 15 Am. St. Rep. 931, 18 Atl. 47, 
 Infancy as defense. 
 
 Cited in Slayton v. .Barry, 175 Mass. 514, 49 L. R. A. 561, footnote p. 560, 78 
 Am. St. Rep. 510, 56 N. E. 574, holding infant cannot be held for tort aris- 
 ing out of contract which, by his false representations as to age, other party 
 was induced to make; Little v. Gallus, 4 App. Div. 584, 38 N. Y. Supp. 487 (dis- 
 senting opinion) majority holding that manufacturer of typewriter ribbon 
 has implied contract with minor employee in confidential relation not to divulge 
 trade secrets; Caswell v. Parker, 96 Me. 40, 51 Atl. 238, holding infancy good 
 defense to action against minor for conversion of shoes taken by him to be sold 
 on commission. 
 
 Cited in footnote to Eliot v. Eliot, 15 L. R. A. 259, which holds infant not 
 estopped by fraudulent declaration as to age. 
 
 Cited in notes (57 L.R.A. 679) on liability of infant for torts; (18 Am. St, 
 Rep. 721) on contracts of infants. 
 
 4 L. R. A. 563, CORNWALL v. DAVIS, 38 Fed. 878. 
 
 Reaffirmed on final hearing in 44 Fed. 533, which was Affirmed in 156 U. S.. 
 680, 39 L. ed. 578, 15 Sup. Ct. Rep. 555. 
 Estoppel to deny validity of jnflgrment. 
 
 Cited in De Kohly v. Fernandez, 58 Misc. 29, 110 N. Y. Supp. 398, holding plain- 
 tiff having pleaded the judgment of an intermediate court of appeal in reply to a 
 supplemental answer is estopped from questioning the jurisdiction of the courts. 
 
 4 L. R. A. 566, MANSFIELD v. NEW YORK C. & H. R. R. CO. 114 N. Y. 331, 
 
 21 N. E. 735, 1037. 
 Interest on damag-es. 
 
 Cited in Brush v. Long Island R. Co. 10 App. Div. 540, 42 N. Y. Supp. 103, 
 holding exception to instruction of jury in relation to interest on damages un- 
 available; Hood v. Hay ward, 124 N. Y. 23, 26 N. E. 331, holding interest be- 
 
727 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 572 
 
 gan to run from time breach of bond was adjudicated and damages thus li- 
 quidated; Laycock v. Parker, 103 Wis. 132, 79 N. W. 327, holding interest allow- 
 able from date of demand where market value of items reasonably certain; Weber 
 & Co. v. Hearn, 49 App. Div. 217, 63 N. Y. Supp. 41; Delafield v. Westfield, 41 
 App. Div. 29, 58 N. Y. Supp. 277; Sloan v. Baird, 12 App. Div. 486, 42 N. Y. 
 Supp. 38; Gray v. Central R. Co. 89 Hun, 478, 35 N. Y. Supp. 378; Button v. Kin- 
 netz, 88 Hun, 39, 34 N. Y. Supp. 522; Benedict v. Sliter, 82 Hun, 198, 31 N. Y. 
 Supp. 413; Reich v. Colwell Lead Co. 50 N. Y. S. R. 300, 21 N. Y. Supp. 495; 
 Sloan v. Baird, 162 N. Y. 329, 56 N. E. 752; Button v. Kinnetz, 88 Hun, 39, 68 
 N. Y. S. R. 307, 34 N. Y. Supp. 522; Sayre v. State, 123 N. Y. 297, 25 N. E. 163, 
 holding interest on unliquidated damages not recoverable ; Jamieson v. New 
 York & R. B. R. Co. 11 App. Div. 54, 42 N. Y. Supp. 915, holding instruction 
 to compute interest on unliquidated damages in tort error; Peetsch v. Quinn, 7 
 .Mi-c. 7, 27 N. Y. Supp. 323, holding interest recoverable on account for goods 
 sold from time of delivery; Hopkins v. Clark, 90 Hun, 8, 35 N. Y. Supp. 360, 
 holding interest recoverable from commencement of action; Gray v. Central 
 R. Co. 157 N. Y. 486, 52 N. E. 555, holding interest cannot be recovered on dam- 
 ages for breach of contract to buy steamboat in absence of proof of market 
 value: Sloan v. Baird, 30 N. Y. Civ. Proc. Rep. 363, holding interest was not 
 recoverable on unliquidated damages for breach of contract of sale of property 
 where such property had no established market value; Chamberlain v. Dunlop, 
 5 Silv. Sup. Ct. 105, 8 X. Y. Supp. 125, holding interest was not recoverable on 
 an unliquidated claim for damages for failure to rebuild under terms of lease; 
 Helene v. Corn Exch. Bank, 96 App. Div. 395, 89 X. Y. Supp. 310, holding party 
 making a demand on a bank to pay over money, which is refused, may recover 
 interest on such claim if entitled to recover; Anthony v. Moore & M. Co. 135 
 App. Div. 205. 120 X. Y. Supp. 402, holding interest was not recoverable on a 
 claim for damages for failure to repair an automobile; Hood v. Hay ward, 20 N. 
 Y. Civ. Proc. Rep. 68 (dissenting opinion), on interest as not beginning to run 
 until damages are liquidated. 
 
 Cited in notes (28 L.R.A. (X.S.) 26) on interest on unliquidated damages; 
 (14 Eng. Rul. Cas. 562) as to when interest will be allowed. 
 
 4 L. R. A. 572, ULBRICHT v. EUFAULA WATEK CO. 86 Ala. 587, 11 Am. 
 
 St. Rep. 72, 6 So. 78. 
 "When injunction lies. 
 
 Cited in Graves v. Smith, 87 Ala. 453, 5 L. R. A. 300, 13 Am. St. Rep. 60, 6 
 So. 308. sustaining injunction restraining part owner of party wall from mak- 
 ing windows or other openings in it; Jones v. Conn, 39 Or. 44, 54 L. R. A. 
 635, 87 Am. St. Rep. 634, 64 Pac. 855, and Franklin v. Pollard Mill Co. 88 Ala. 
 323, 6 So. 685, holding, where special damages are not shown, injunction will 
 only issue to prevent acquisition of prescriptive right to divert water; Brasher 
 v. Miller, 114 Ala. 489, 21 So. 467, refusing to enjoin payment of teacher 
 because of illegal contract of employment. 
 
 Cited in notes (7 Eng. Rul. Cas. 485) on liability to indictment or injunction 
 of public service corporation exceeding its powers; (10 Eng. Rul. Cas. 313) on 
 mandatory injunction for protection of easement. 
 Measure of damages. 
 
 Distinguished in Green Bay & M. Canal Co. v. Kaukauna Water Power Co. 
 112 Wis. 335, 62 L. R. A. 587, 87 N. W. 864, holding appropriator of water 
 power created by dam liable for rental value of power, though not in use by 
 owner. 
 
4 L.R.A. 572] L. R. A. CASES AS AUTHORITIES. 728 
 
 of riparian owners. 
 
 Cited in Tennessee Coal, I. & R. Co. v. Hamilton, 100 Ala. 258, 46 Am. St. Rep. 
 48. 14 So. 167, holding upper riparian owner cannot unfit river for domestic use, 
 or cause it to fill channel and deposit debris; Webster v. Harris, 111 Tenn. 700, 59 
 L.R.A. 332, 69 S. W. 782, holding equity will protect owner of lake land from 
 draining of lake by other riparian owners; Meng v. Coffey, 67 Neb. 512. 60 L.R.A. 
 914, 93 N. W. 713, upholding right of riparian owner to take reasonable quantity 
 of water from stream for irrigation purposes; People v. Hulbert, 131 Mich. 173, 
 64 L.R.A. 275, 91 N. W. 211, upholding right of upper riparian owner to bathe in 
 lake although lower owner draws water supply therefrom; Alabama Consol. Coal 
 & I. Co. v. Turner, 145 Ala. 651, 117 Am. St. Rep. 61, 39 So. 603, holding the un- 
 disturbed enjoyment of the waters of a stream by a riparian owner for a period 
 of ten years with the knowledge of lower riparian owner raises a presumption 
 of title as against right of lower owner w r hich might have been asserted; Central 
 R. Co. v. Champion, 160 Ala. 521, 49 So. 415, holding a riparian owner might 
 enjoin the obstruction of a stream by a railroad in such a way as to cause the 
 water to back onto complainant's land; Meng v. Coffee, 67 Neb. 512, 60 L.R.A. 
 $10, 108 Am. St. Rep. 697, 93 N. W. 713, holding a riparian owner might use 
 waters of a stream for irrigation purposes where such use is reasonable with 
 reference to the character and size of stream and the uses put to by other ri- 
 parian owners; Webster v. Harris, 111 Tenn. 700, 59 L.R.A. 324, 69 S. W. 782, 
 on right of riparian owner to protect his enjoyment of a stream by injunction 
 and also citing annotations on this point; North Alabama, C. I. & R. Co. v. Jones, 
 156 Ala. 367, 47 So. 144, on riparian owner as having a right to have a stream 
 flow through his land without material diminution or alteration in quality. 
 
 Cited in footnotes to Gould v. Eaton, 38 L. R. A. 181, which denies riparian 
 owner's power to transfer right to divert water from stream to use on nonripa- 
 rian land; Stock v. Jefferson, 38 L. R. A. 355, which holds diversion of water 
 from mill without compensation not justified by improvement of highways, 
 drainage of land, or general improvement of country. 
 
 Cited in notes (5 L. R. A. 62; 5 L. R. A. 689) on riparian rights of owners 
 bounding on navigable streams; (7 L. R. A. 613) on riparian rights; (8 L. R. 
 A. 578) on property in unnavigable lakes; (9 L. R. A. 195) on franchise of 
 water companies; (9 L. R. A. 812) on riparian right to use of waters of 
 stream; (41 L. R. A. 740, 743) on correlative rights of upper and lower proprie- 
 tors as to use and flow of water in stream; (37 L.R.A. (N.S.) 312, 313) on right 
 of government to divert water without compensation to riparian owner; (81 
 Am. St. Rep. 485) on liability of water companies to riparian owners for taking 
 water from stream; (10 Eng. Rul. Cas. 217) on riparian owner's right to use of 
 stream. 
 Subsurface water. 
 
 Cited in Tampa Waterworks Co. v. Cline, 37 Fla. 602, 33 L. R. A. 382, 53 
 Am. St. Rep. 262, 20 So. 780, holding subsurface water without known channel 
 may be appropriated by owner of soil. 
 
 4 L. R. A. 575, ANHEUSER-BUSCH BREWING ASSO. v. HUTMACHER, 127 
 111. 652, 21 N. E. 626. 
 
 Garnishee proceedings in Hutmacher v. Anheuser-Busch Brewing Asso. 71 
 111. App. 156. 
 Vilin i->ihili t > of copy of telegrraph message in evidence. 
 
 Cited in Nickerson v. Spindell, 104 Mass. 28, 41 N. E. 105, holding sender 
 of telegram taking initiative, message delivered may be treated as original be- 
 tween him and receiver; Bond v. Hurd, 31 Mont. 319, 78 Pac. 579, 3 A. & E. Ann. 
 
729 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 58:i 
 
 Cas. 566. holding the reply telegram delivered to the telegraph company and not 
 the one delivered by the company was the original for evidentiary purposes. 
 
 Cited in notes (50 L.R.A. 253) on telegram as writings to make contract with- 
 in statute of frauds; (110 Am. St. Rep. 745) on contracts by telegraph. 
 Proper cross-examination. 
 
 Cited in Schmidt v. Chicago C. R. Co. 239 111. 499, b8 N. E. 275, on necessity 
 that cross-examination be limited to facts elicited by the examination in chief. 
 
 Cited in note (11 Eng. Rul. Cas. 171) on right to cross-examine witness called 
 and sworn though not examined. 
 
 4 L. R. A. 579, BOLZER v. PEOPLE, 129 ill. 112, 21 N. E. 818. 
 Threats as evidence on trial for homicide. 
 
 Cited in note (21 Am. St. Rep. 355) on threats as evidence on trial for homi- 
 cide. 
 Heat of passion redncingr degree of homicide. 
 
 Cited in note (5 L.R.A.(X.S.) 821, 826) on heat of passion which will mitigate 
 or reduce degree of homicide. 
 
 4 L. R. A. 582, FARRIS v. PEOPLE, 129 111. 521, 16 Am. St. Rep. 283, 21 N. E. 
 
 821. 
 Acliiiisailtility of evidence of other crimes. 
 
 Cited in State v. Kent, 5 X. D. 549, 35 L. R. A. 530, 67 N. W. 1052, holding 
 evidence of former crimes admissible to show motive for murder of wife; Bishop 
 v. People, 194 111. 369, 62 X. E. 785, holding evidence as to commission of 
 wholly different and unconnected crime inadmissible to prove theft; State v. 
 May, 142 Mo. 154, 43 S. W. 637, holding evidence of resistance to arrest of ac- 
 cused subsequent to homicide inadmissible; People v. Lane, 100 Cal. 387, 34 Pac. 
 856, holding evidence of shots fired at another man outside of house when 
 and just after murder committed, inadmissible; Proper v. State, 85 Wis. 629, 
 55 X. W. 1035, holding evidence of intercourse on former occasions with older 
 girl in presence of victim of assault admissible; Moore v. United States, 150- 
 U. S. 61, 37 L. ed. 998, 14 Sup. Ct. Rep. 26, holding evidence that murdered man 
 had been at place of another murder not incompetent as tending to connect him 
 with latter crime; Dubois v. People, 200 111. 163, 93 Am. St. Rep. 183, 65 X. E. 
 658, holding evidence that confidence game had been worked by accused before 
 admissible in showing guilty knowledge; Gorgo v. People, 100 111. App. 132, 
 holding evidence of assault on another just before that for which accused 
 charged admissible; Towne v. People, 89 111. App. 283, holding evidence of 
 former conspiracy to wreck association not admissible in proceeding for crim- 
 inal conspiracy to injure business; Williams v. People, 166 111. 134, 46 X. K. 
 749, holding evidence that accused was engaged- with others in following show 
 in order to steal and pick pockets admissible on charge of assault to steal; Paint- 
 er v. People, 147 111. 463, 35 X. E. 04, holding evidence of former assault* 
 on woman competent in trial for her murder; Lyons v. People, 137 111. 613, 
 J7 X. E. (577. holding evidence of stabbing of woman, in trial for murder of 
 man when both grew out of same quarrel, admissible; Henry v. People, 198 111. 
 187, 65 X. E. 120, holding evidence of threats against deceased shortly prior to- 
 murder admissible; Addison v. People, 193 111. 410, 62 X. E. 235, holding evi- 
 dence that accused had been drinking a short time before or on the day of 
 assault inadmissible; Glover v. People, 204 111. 177, 68 N. E. 464, holding evidence 
 of previous threats admissible on charge of extortion: Colonial Mut. F. Ins. Co. 
 v. Ellingcr, 112 111. App. 309, holding that upon issue of incendiarism, proof of 
 other fires than one charged incompetent; Raines v. State, 81 Miss. 497, 33 
 
4 L.R.A. 532] L. R. A. CASES AS AUTHORITIES. 730 
 
 19, holding evidence of previous ill-treatment, assaults, threats of divorce, 
 and shot holes in wall, incompetent on issue whether accused murdered his 
 wife; State v. Fitchette, 88 Minn. 149, 92 X. W. 527, holding evidence of 
 similar offense inadmissible on trial of one accused of receiving reward for 
 procuring appointment; People v. Blevins, 251 111. 393, 96 X. E. 214, Ann. Cas. 
 1912 C, 451, holding that admission of evidence that accused had pleaded guilty 
 to a crime is prejudicial error; People v. Jennings, 252 111. 544, L.R.A.(X.S.) 
 , 96 X. E. 1077, holding admissible, evidence that, shortly before crime, accused 
 was seen near scene of crime, though he was engaged in other offenses vs hen 
 seen; State v. Hazlet, 16 X. D. 438, 113 X. W. 374, holding in a prosecution for 
 murder the court erred in permitting proof that defendant had committed the 
 crime of sodomy; Schultz v. People, 210 111. 204, 71 X. E. 405, holding where 
 defendant was charged with having received certain stolen goods with knowledge 
 of the theft it was error for the court to admit in evidence other property claimed 
 to have come into defendant's possession in the same; State v. Kelliher, 49 Or. 
 84, 88 Pac. 867, holding in a prosecution for forgeries evidence of other forgeries 
 by defendant are inadmissible; Sorenson v. United States, 94 C. C. A. 181, 168 
 Fed. 794, on the admissibility of evidence of other crimes. 
 
 Cited in notes (62 L.R.A. 197, 201) on evidence of other crimes in criminal 
 case; (105 Am. St. Rep. 981, 1001) on admissibility of evidence of other crimes. 
 
 Distinguished in Thompson v. United States, 75 C. C. A. 172, 144 Fed. 18, 7 
 A. & E. Ann. Cas. 62, holding on trial of defendant for counterfeiting in connec- 
 tion with another, such other person might properly testify that prior to such 
 act defendant stated he was liable to arrest for abortion and wanted the money 
 to deposit for bail in such case; People v. Hagenow, 236 111. 528, 86 X. E. 370, 
 holding in a prosecution of accused for causing the death of a patient by pro- 
 ducing an abortion, evidence that she held herself out as engaged in such a busi- 
 ness and that she had caused abortions on several women resulting in their death 
 was admissive. 
 Admissibility of collateral evidence In criminal cases. 
 
 Cited in State v. Moore, 77 Kan. 740, 95 Pac. 409, on the inadmissibility of 
 collateral facts not connected with the subject-matter in the trial of a criminal 
 case. 
 Motive in homicide. 
 
 Cited in Clefford v. People, 229 111. 640, 82 N. E. 343, holding evidence of 
 motive was not essential to constitute murder where the evidence showed beyond 
 a reasonable doubt that accused killed deceased with malice aforethought. 
 
 Cited in note (8 Eng. Rul. Cas. 87) on evidence of subsequent acts to prove 
 intent or motive for crime. 
 
 4 L. R. A. 586, XATIOXAL BAXK v. BAKER, 128 111. 533, 21 N. E. 510. 
 Action on appeal bond in Xational Bank v. Baker, 58 111. App. 344. 
 Sale of stock pledged as collateral security. 
 
 Cited in Huiskamp v. West, 47 Fed. 249, holding under Illinois law pledgee of 
 stock as collateral cannot sell until after default and demand; Hiscock v. Varick 
 Bank, 206 U. S. 38, 51 L. ed. 952, 27 Sup. Ct. Rep. 681, holding a sale of collateral 
 security at public auction without notice and the purchase thereof by the pledgee 
 are not void as against the trustee in bankruptcy of pledger the contract of 
 pledger permitting and there being no fraud. 
 
 Cited in notes (43 L.R.A. 747, 755) on pledgee's conversion of pledged property 
 by invalid sale; (121 Am. St. Rep. 201) on rights, remedies, and liabilities of 
 pledgees of corporate stock. 
 
731 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 594 
 
 4 L. R. A. 589, WILSOX v. BUTLER COUNTY, 26 Neb. 676, 42 N. W. 891. 
 Recovery of amount paid at illegral tax Bale or for illegal taxes. 
 
 Cited in Fuller v. Colfax County, 33 Neb. 723, 50 N. W. 1044, holding county 
 liable to purchaser for amount paid, with interest ; Pennock v. Douglas County, 
 39 Xeb. 297, 27 L. R. A. 124, 42 Am. St. Rep. 579, 58 N. W. 117, dismissing claim 
 for repayment for failure to pursue proper statutory remedy; Kelley v. Gage 
 County, 67 Xeb. 10, 93 X. W. 194, holding county not liable where a sale of real 
 estate for nonpayment of taxes is void because of irregularities on the part of 
 officials of a city levying such taxes for special improvements; Joliet Stove 
 Works v. Kiep, 230 111. 557, 82 X. E. 875, 12 A. & E. Ann. Cas. 227, holding a 
 purchaser at an illegal tax sale paying subsequent taxes on the property may 
 recover such taxes from the owner. 
 
 Cited in footnotes to Budge v. Grand Forks, 10 L. R. A. 165, which holds 
 purchaser at invalid tax sale not entitled to recover from city money paid; 
 Pennock v. Douglas County, 27 L. R. A. 121, which denies power to compel city 
 to refund money received on void sale for special assessment; St. Anthony & 
 D. Elevator Co. v. Soucie, 50 L. R. A. 262, which sustains right to recover illegal 
 taxes paid under protest to prevent tax collector's sale of personal property 
 constructively seized; C. & J. Michel Brewing Co. v. State, 70 L.R.A. 911, which 
 holds that requiring foreign corporation to pay license fee as condition precedent 
 to sale of products within state or subject itself to penalties supposed to be 
 prescribed by statute not such compulsion as will entitle it to recover amounts 
 paid on statute being held unconstitutional. 
 
 Cited in note (12 L. R. A. 619) on remedy for levy of assessment by mistake. 
 
 Distinguished in Martin v. Kearney County, 62 Neb. 543, 87 N. W. 351, hold- 
 ing purchaser of property at unauthorized tax sale cannot recover purchase 
 money without statutory authority. 
 Payment of taxes to protect purchaser's interest In land. 
 
 Cited in John v. Connell, 61 Xeb. 270, 85 N. W. 82, holding owner of suppos- 
 edly valid tax-sale certificate, paying subsequent taxes, entitled to subrogation. 
 
 4 L. R. A. 594, RYCHLICKI v. ST. LOUIS, 98 Mo. 497, 14 Am. St. Rep. 651, 11 
 
 S. W. 1001. 
 Surface waters. 
 
 Cited in Cannon v. St. Joseph, 67 Mo. App. 370, holding city liable for col- 
 lecting large body of water by street improvement and throwing it in artificial 
 body on private property; Carson v. Springfield, 53 Mo. App. 295, holding city 
 liable for overflow from gutters of water diverted thereto by its highway improve- 
 ments, during ordinary rains; Payne v. Kansas City, St. J. & C. B. R. Co. 112 Mo. 
 18, 17 L. R. A. 631, 20 S. W. 322, holding dam to protect land authorized by leg- 
 islature, built in old river bed, leaving sufficient channel for ordinary high 
 stages, lawful public improvement; Paddock v. Somes, 102 Mo. 238, 10 L. R. A. 
 258. 14 S. W. 746, holding individual liable for throwing surface or drainage 
 waters on neighbor's lands, by artificial channel; Brandenberg v. Zeigler, 62 S. 
 C. 23, 55 L. R. A. 417, 89 Am. St. Rep. 887, 39 S. E. 790, holding owner 
 of pond of surface water cannot drain it upon neighbor's land to his injury 
 by cutting through natural rim to basin; Norfolk & W. R. Co. v. Carter, 91 Va. 
 593. 22 S. E. 517. holding railroad liable for obstructing natural channel of 
 surface water; Central R. Co. v. Windham, 126 Ala. 560, 28 So. 392, holding rail- 
 road liable for injury from diversion of surface rain water from natural chan- 
 nel, by improvements; Hume v. Des Moines, 146 Iowa, 639, 29 L.R.A.(X.S.) 134, 
 125 X. W. 846, Ann. Cas. 1912 B, 904, holding city liable for negligently obstruct- 
 ing drains, in grading street; Ready v. Missouri P. R. Co. 98 Mo. App. 469, 72 
 
4 L.K.A. 594] L. R. A. CASES AS AUTHORITIES. 732: 
 
 S. W. 142, holding defendant company liable for damages where the putting in 
 of a culvert caused surface water to flood plaintiff's land which before never 
 reached her land; Chicago. R. I. & P. R. Co. v. Groves, 20 Okla. 114, 22 L.R.A. 
 (X.S.) 808, 93 Pac. 755, holding defendant company was liable for the flooding 
 of plaintiff's land caused by the building of an embankment across a well defined 
 channel through which surface water was discharged; Chicago, R. I. & P. R. Co. 
 v. Johnson, 25 Okla. 765, 27 L.R.A.(N.S.) 881, 107 Pac. 662, holding defendant 
 liable where by means of artificial channels it collects surface water and leads 
 it so that it overflows land of plaintiff; Lewis v. Springfield, 142 Mo. App. 88, 
 125 S. W. 824, on city as having no right to collect surface water and cast it on 
 private property; Adams v. Oklahoma City, 20 Okla. 531, 95 Pac. 975, on liability 
 of city where surface water is cast onto land of private owners. 
 
 Cited in notes (21 L. R. A. 597) on rights as to flow of surface water; (7 
 L. R. A. 465) on damages recoverable for negligent construction of sewer; (53 : 
 L. R. A. 635) on extent of trespasser's liability for consequential injuries result- 
 ing from the trespass; (30 Am. St. Rep. 394, 395) on liability of cities for inter- 
 ference with surface waters by grading streets; (85 Am. St. Rep. 731) on right 
 of landowner to accelerate or diminish flow of water to or from lands of another. 
 
 Distinguished in 115 Mo. 666, 22 S. W. 908, holding on second appeal city 
 not liable for continued discharge of water from highway, through another's 
 act, where it abates such nuisance two months after notice; Mclnery v. St. 
 Joseph, 45 Mo. App. 298, holding city liable for overflow of surface water 
 on abutting property by its obstructing gutter; Byrne v. Keokuk & W. R. Co. 
 47 Mo. App. 388, holding railway liable for diverting surface waters by mere 
 failure to construct ditches and drains, under Mo. Rev. Stat. 1889, 2614; 
 Gulath v. St. Louis, 179 Mo. 54, 77 S. W. 744, holding a city not liable where 
 because of a rainstorm, such as had never occurred before lands were flooded 
 from a sewer, properly constructed and having a sufficient capacity under ordi- 
 nary conditions; Jackson v. Wabash R. Co. 154 Mo. App. 478, 135 S. W. 977, 
 holding railroad liable for damages to abutters from flooding of their land by 
 surface water caused by construction of switch in street. 
 
 4 L. R. A. 601, GARLITZ v. STATE, 71 Md. 293, 18 Atl. 39. 
 Competency of juror for impartiality. 
 
 Cited in Gillespie v. State, 92 Md. 172, 48 Atl. 32: United States v. Barber, 
 21 D. C. 459; United States v. Schneider, 21 D. C. 397, holding juror with- 
 in rule of impartiality although having opinion based on rumor and newspaper 
 accounts, if able to render impartial verdict; Horton v. United States, 15 
 App. D. C. 319, holding qualification of jurors question for sound discretion 
 of court; State v. Morrison, 67 Kan. 161,. 72 Pac. 554, holding competent, juror 
 not having opinion as to justihcation accused had for killing, where prisoner 
 pleads self-defense; Guy v. State, 96 Md. 695, 54 Atl. 879, holding membership in 
 law and order league not disqualification for juror in excise violation case. 
 
 Cited in notes (35 L.R.A.(X.S.) 1000) on opinion gained from newspaper as 
 disqualifying juror in criminal case; (40 L. ed. U. S. 238) on disqualification of 
 jurors by reason of previously formed opinions. 
 Admisaibility of evidence of conduct and appearance of accused. 
 
 Cited in Handy v. State, 101 Md. 45, 109 Am. St. Rep. 558, 60 Atl. 452, holding 
 where insanity is not set up as a defense and there was evidence of premedita- 
 tion, evidence as to defendant's feelings and condition of mind on the day of the 
 homicide is inadmissible. 
 
 ArR-nment of counsel. 
 
 Cited in Vickers v. United States, 1 Okla. Crim. Rep. 466, 98 Pac. 467, holding 
 
733 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 609 
 
 a new trial will be properly granted where the prosecuting attorney in address- 
 ing the jury goes out side record and appeals to the passions and prejudices of 
 jury; Cox v. Territory, 2 Okla. Crim. Rep. 680. 304 Pac. 378, holding that state- 
 ment of county attorney that if evidence did not bring about a conviction, he 
 would quit prosecuting horse thieves. 
 Meat of |i:isxiiiii reducing degree of homicide. 
 
 Cited in notes (5 L.R.A.(X.S.) 817) on heat of passion which will mitigate or 
 reduce degree of homicide; (38 L.R.A.(X.S.) 100) on degree of homicide in killing 
 wife, as affected by her confession of, or declaration of intent to commit, 
 adultery; (92 Am. St. Rep. 220) on killing of adulteress. 
 
 4 L. R. A. 606, SEIBERT v. TODD, 31 S. C. 206, 9 S. E. 822. 
 Dower right. 
 
 Cited in footnote to Hart v. Burcli, 6 L. R. A. 371, which holds ineffectual, 
 release of dower to one having no title. 
 
 Cited in notes (8 L. R. A. 443) on protection of wife's right of dower; (13 
 L. R. A. 442) on bar of inchoate right of dower. 
 Procedure in foreclosure. 
 
 Cited in Bird v. Kendall, 62 S. C. 186, 40 S. E. 142, holding fact that claim 
 under mortgage is set up by codefendant, instead of in separate proceeding to 
 enforce same, immaterial as regards rights of parties. 
 
 4 L. R. A. 609, BAER'S APPEAL, 127 Pa. 360, 18 Atl. 1. 
 Effect of deposit on certificate. 
 
 Cited in Eshleman v. Bolenius, 144 Pa. 272, 28 W. N. C. 574, 22 Atl. 758, 
 holding administrator liable upon bank's insolvency for deposit by attorney 
 upon certificate payable in one year, with interest; State Bank's Case, 13 Pa. 
 Co. Ct. 438, 3 Pa. Dist. R. 7, holding interest-bearing time deposit a loan to 
 bank. 
 
 Cited in note (6 L. R. A. 36) on proof of prior or contemporaneous agreement 
 to contradict or vary contract. 
 
 Distinguished in Law's Estate, 144 Pa. 507, 28 W. N. C. 491, 14 L. R. A. 106, 
 22 Atl. 831, Reversing 27 W. X. C. 346, 9 Pa. Co. Ct. 227, 47 Phila. Leg. Int. 
 504, holding money placed in bank by trustee pending investment, at small inter- 
 est and requiring two weeks' notice for withdrawal, not loan at risk of trustee 
 in due care. 
 Duties and liabilities of trustee. 
 
 Cited in Carr's Estate, 8 Del. Co. Rep. 561, holding executor individually re- 
 sponsible for trust funds loaned on personal security; Breneman v. Mylin, 12 Pa. 
 Co. Ct. 325, 2 Pa. Dist. R. 297, 10 Lane. L. Rev. 10, holding trustees exercis- 
 ing due care not liable for loss due to failure of bank of deposit; Re Schlcgel, 
 34 Pittsb. L. J. X*. S. 410, holding it question for court whether corporation 
 stock may be transferred by administrator to guardian in distribution. 
 
 Cited in notes (7 L.R.A. (X.S.) 619) on liability of executor or administrator 
 for loss of bank deposit; (98 Am. St. Rep. 374) on deposit of trust fund in bank 
 by executors or administrators. 
 
 Distinguished in Re Seanians, 2 Lack. Legal News, 272, holding executor con- 
 tinuing deposit made by testator, not liable for loss caused by failure of bank. 
 Parol evidence to vary written agreement. 
 
 Cited in Re Lippincott, 31 Pittsb. L. J. N. S. 374, holding contemporary parol 
 agreement incompetent to vary terms of church subscription in absonce of 
 fraud or mistake ; Bartholomay Brewery Co. v. Thomeier, 38 W. N. C. 544, 2 
 
4 L.R.A. C09] L. R. A. CASES AS AUTHORITIES. 734 
 
 Pa. Super. Ct. 354, holding testimony of surety as to contemporary parol agree- 
 ment insufficient to limit liability on bond. 
 Deposit of funds amounting; to a loan. 
 
 Cited in Corcoran v. Kostrometinoff, 21 L.R.A. (X.S.) 402, 91 C. C. A. 619, 164 
 Fed. 687, holding the deposit by a guardian of her wards funds in a bank for a 
 fixed period of time upon a certificate of deposit, amounts to a loan without 
 security; Com. ex rel. Atty. Gen v. State Bank, 32 Pa. Co. Ct. 54, on deposits 
 by trustees in the nature of a loan. 
 
 Cited in note (33 Am. St. Rep. 227) on deposit as loan. 
 
 4 L. R. A. 611, GILLIS v. WESTERN U. TELEG. CO. 61 Vt. 461, 15 Am. 
 
 St. Rep. 917, 17 Atl. 736. 
 Limitation of liability of transmitter or carrier. 
 
 Cited in Wertz v. Western U. Teleg. Co. 7 Utah, 449, 13 L. R. A. 512, 27 Pac. 
 172, and Reed v. Western U. Teleg. Co. 135 Mo. 673, 34 L. R. A. 497, 58 Am. 
 St. Rep. 609, 37 S. W. 904, holding limitation of liability of telegraph com- 
 pany for errors and mistakes in transmitting unrepeated messages, not valid 
 as to operators' negligence; Thompson v. Western U. Teleg. Co. 107 N. C. 458, 
 12 S. E. 427, holding stipulation as to unrepeated telegrams, no protection 
 against delay in transmission amounting to gross negligence; Brown v. Postal 
 Teleg. Co. Ill N. C. 192, 17 L. R. A. 650, 32 Am. St. Rep. 793, 16 S. E. 179, 
 holding restriction of liability for negligence void as to mistakes as well as to 
 delays in transmission of telegrams; Davis v. Central Vermont R. Co. 66 
 Vt. 294, 44 Am. St. Rep. 852, 29 Atl. 313, holding carrier not liable for loss 
 by fire without its negligence under bill of lading exempting from such liability 
 except for negligence; Ranchau v. Rutland R. Co. 71 Vt. 147, 76 Am. St. Rep. 
 761, 43 Atl. 11, holding passenger unable to read or write not bound by restric- 
 tion upon liability for lost baggage printed upon railroad ticket, where not 
 informed; Hill v. Western U. Teleg. Co. 85 Ga. 429, 21 Am. St. Rep. 166, 11 S. E. 
 874, holding sender of telegram assents to stipulation limiting liability by sign- 
 ing blank containing it; Strong v. Western U. Teleg. Co. 18 Idaho, 403, 30 
 L.R.A.(N.S.) 417, 109 Pac. 910, Ann. Cas. 1912 A, 55, holding that stipulation 
 exempting telegraph company from damages for its own negligence is void; 
 Sprigg v. Rutland R. Co. 77 Vt. 354. 60 Atl. 143, on limitations against liability 
 for loss, when against public policy; Joshua L. Bailey & Co. v. Western U. Teleg. 
 Co. 227 Pa. 529, 76 Atl. 736, on disability to stipulate for exemption from lia- 
 bility for negligence. 
 
 Cited in footnotes to Western U. Teleg. Co. v. Stevenson, 5 L. R. A. 515, which 
 holds stipulation limiting liability to repeated message valid ; Brown v. Postal 
 Teleg. Cable Co. 17 L. R. A. 648, which holds limitation of amount of liability 
 for mistake in transmitting telegram void as to mistake caused by negligence; 
 Birkett v. Western U. Teleg. Co. 33 L. R. A. 404, which holds valid, condition 
 against liability beyond amount paid for sending unrepeated message; Coit v. 
 Western U. Teleg. Co. 53 L. R. A. 678, which holds one requesting another to 
 furnish information by telegram bound by latter's agreement relieving company 
 from liability for unrepeated messages. 
 
 Cited in notes (13 L.R.A. 511) on effect of stipulations in contract to trans- 
 mit telegram; (11 L.R.A. (N.S.) 563) on validity of limitation of liability for 
 unrepeated telegrams. 
 
 Distinguished in Sherrill v. Western U. Teleg. Co. 109 N. C. 531, 14 S. E. 94, 
 holding limitation of liability for damages to claims presented within sixty days 
 after sending, valid; Kirby v. Western U. Teleg. Co. 7 S. D. 629, 30 L. R. A. 
 
735 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 621 
 
 623, 65 N. W. 37, holding limitation of liability for damages or penalties to claim 
 presented within sixty days after filing telegram for transmission, valid. 
 Liability for negligence in transmitting; telegram. 
 
 Cited in Cowan v. Western U. Teleg. Co. 122 Iowa, 384, 64 L. R. A. 550, 98 
 N. \V. 281, holding telegraph company liable in tort for negligent transmission, 
 of telegram; Shaw v. Postal Teleg. & Cable Co. 79 Miss. 696, 56 L. R. A. 493 r 
 footnote p. 486, 89 Am. St. Rep. 666, 31 So. 222 (dissenting opinion) denying 
 power to enforce, in other state, liability for mistakes in transmitting cipher 
 telegram without payment of additional fee, required to insure against mistakes; 
 Western U. Teleg. Co. v. Adams, 6 L. R. A. 844. which holds that ignorance- 
 of relations between parties to message does not excuse neglect in delivering; 
 Wi-stern U. Teleg. Co. v. Short, 9 L. R. A. 744, which holds company prima 
 facie liable for failure to deliver telegram. 
 
 4 L. R. A. 616, MONTGOMERY GASLIGUT CO. v. MONTGOMERY, 87 Ala. 
 
 245, 6 So. 113. 
 Sale at price to be appraised. 
 
 Cited in Mobile v. Wood, 95 Fed. 538, holding want of consent to submission 
 and failure to concur in appointment of arbitrators, fatal to award. 
 
 Cited in notes (8 L. R. A. 488) on manufacture and distribution of gas as a 
 public franchise; (9 L. R. A. 37) on monopolies. 
 
 Distinguished in Farmington v. Farmington Water Co. 93 Me. 200, 44 Atl. 
 609, holding village need not bind itself to purchase waterworks at appraisal 
 value before obtaining under contract, providing that it "shall have the right to 
 buy" and company "agree to sell" at such price; Livermore v. Millville, 71 N. J. 
 L. 510, 59 Atl. 217, holding a water company by appointing commissioners to 
 arrange terms of selling plant to city acceded to city's view of the construction 
 of the statute, that the city need only acquire it provided the purchase price be 
 agreeable to the city. 
 Injunction against legislation. 
 
 Cited in footnote to State ex rel. Rose v. Superior Court, 48 L. 'R. A. 819", 
 which denies right to injunction against passage of ordinance creating con- 
 tract. 
 
 Cited in note (13 L. R. A. 845) on injunction to prevent passage of munici- 
 pal ordinance. 
 r 
 
 Distinguished in Poppleton v. Moores, 62 Neb. 855, 88 N. W. 128, holding in- 
 junction lies to restrain city's continuance in forbidden contractual relations 
 affecting interests of citizens. 
 Specific performance of contract vrith municipality. 
 
 Cited in Castle Creek Water Co. v. Aspen, 76 C. C. A. 516, 146 Fed. 11, 8 A. 
 & E. Ann. Cas. 660, holding waterworks company might have a specific perform- 
 ance of a contract with city to purchase the plant at a price determined by 
 appraisers; Slocum v. North Platte, 112 C. C. A. 510, 192 Fed. 263, enforcing 
 contract by city to purchase waterworks. 
 
 4 L. R. A. 621, STATE v. CARTER, 98 Mo. 431, 11 S. W. 979. 
 Effect of escape of prisoner npon right of appeal. 
 
 Cited in State v. Logan, 125 Mo. 26, 28 S. W. 176, upholding refusal of trial 
 judge to sign bill of exceptions after escape of defendant. 
 
 Cited in note (26 L.R.A.(N.S. 922) on effect of escape on appeal from con- 
 viction. 
 
4 L.R.A. 622] L. R. A. CASES AS AUTHORITIES. 736 
 
 4 L. R. A. 622, IRON MOUNTAIN R. CO. v. B1NGHAM, 87 Tenn. 522, 11 S. 
 
 W. 705. 
 Land bounded by street or river. 
 
 Cited in Reeves v. Allen, 101 Tenn. 414, 47 S. \V. 495. holding deed to side 
 of street does not convey title to the middle; State v. Taylor, 107 Tenn. 403, 
 64 S. W. 706, holding municipality receives only an easement in street dedi- 
 cated for public use; Hanlon v. Hobson, 24 Colo. 289, 42 L. R. A. 513, 51 Pac. 
 433, holding title to land bounded by non-navigable river extends to middle. 
 
 Cited in footnote to Crocker v. Cotting, 33 L. R. A. 245, which holds no part 
 of passageway included in grant of land "bounded by" such passageway. 
 
 Cited in notes (7 L.R.A. 548) on ownership of fee in streets; (11 Am. St. 
 Rep. 682) on abutting lot-owners. 
 Power to license use of streets. 
 
 Cited in Louisville & N. R. Co. v. Mississippi & T. R. Co. 92 Tenn. 692, 22 
 S. W. 920, allowing foreign company benefit of railroad company's contract with 
 city to permit other companies to use its tracks in street; Citizens' Street R. 
 Co. v. Africa, 100 Tenn. 43, 42 S. W. 485, holding validity of franchise to 
 street railways dependent upon provisions of charter; Knoxville v. Africa, 
 43 C. C. A. 258, 47 U. S. App. 74, 77 Fed. 507, upholding legislative power to 
 delegate to municipality power to grant right of way in streets; Pepper v. Union 
 R. Co. 113 Tenn. 58, 85 S. W. 864, on legislature as having authority to authorize 
 the building of a railroad, streets or alleys of cities or towns. 
 
 Cited in footnote to Theobold v. Louisville, N. O. & T. R. Co. 4 L. R. A. 735, 
 which holds steam railroad cannot be operated in street without condemna- 
 tion or consent of abutting owner. 
 
 Cited in notes (12 L. R. A. 115) on authorizing obstructions in highway; (48 
 L. R. A. 492) on power of legislature to impose burdens on municipalities and 
 to control their local administration and property. 
 Consequential damages. 
 
 Cited in Brumit v. Virginia & S. W. R. Co. 100 Tenn. 135, 60 S. W. 505, holding 
 abutting owner with easement in street must show special injury through use of 
 street by another under license; High Bridge Lumber Co. v. United States, 16 C. 
 C. A. 464, 37 U. S. App. 234, 69 Fed. 324, holding, without statutory authority, 
 consequential damages from skilfully constructed works not recoverable; Gar- 
 rett v. Lake Roland Elev. R. Co. 79 Md. 287, 24 L. R. A. 399, 29 Atl. 830, dis- 
 cussing bill to enjoin building of railroad abutment in street, holding Mary- 
 land acts provide ample remedies for consequential damages; Salliotte v. King 
 Bridge Co. 58 C. C. A. 470, 122 Fed. 382, denying right of riparian owner to 
 recover damages for washing away of banks caused by increase of current 
 due to building of bridge. 
 
 Cited in footnote to .People ex rel. Kunze v. Ft. Wayne & E. R. Co. 16 L. R. 
 A. 752, which holds street railway not additional servitude. 
 
 Cited in note (17 L. R. A. 477) on what use of street or highway consti- 
 tutes additional burden. 
 
 Distinguished in East End Street R. Co. v. Doyle, 88 Tenn. 747, 9 L. R. A. 
 102, 17 Am. St. Rep. 933, 13 S. W. 936, holding construction of railroad upon 
 highway constitutes additional compensatory burden upon fee. 
 Itiuln* of abutting- owner. 
 
 Cited in Hamilton County v. Rape, 101 Tenn. 225, 47 S. W. 416, holding right 
 of abutting owner to ingress and egress cannot be taken without compensation; 
 Brumit v. Virginia & S. W. R. C'o. 106 Tenn. 139, 60 S. W. 505, holding damages 
 recoverable for impairing abutting owner's right of ingress and egress; Frazier 
 
737 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 632 
 
 v. East Tennessee Teleph. Co. 115 Tenn. 421, 3 L.R.A. (X.S.) 325, 112 Am. St. 
 Rep. 856. 90 S. W. G20, 5 A. & E. Ann. Cas. 838, holding telephone wires and 
 poles erected in street were not such an additional burden as to entitle abutting 
 owners to compensation; Acker v. Knoxville, ]17 Tenn. 228, 96 S. W. 973, 
 holding plaintiffs who owned to the center of a street could not recover against 
 a city because it permitted a railroad company to build its line on the side of 
 street beyond plaintiff's property line; Coyne v. Memphis, 118 Tenn. 661, 102 
 S. W. 355, holding a city changing the grade of a street is liable for the im- 
 pairment of the easement to and from an abutting lot; Louisville & N. Terminal 
 Co. v. Lellyett, 114 Tenn. 402, 1 L.R.A.(N.S.) 91, 85 S. W. 881, holding prop- 
 erty owner might recover damages for injury to her property by the erection in 
 the rear proximity of round houses, coal sheds and necessary tracks; Gossett v. 
 Southern R. Co. 115 Tenn. 390, 1 L.R.A. (X.S.) 110, 112 Am. St. Rep. S46, 89 
 S. W. 737, holding an adjoining property owner was entitled to recover damages 
 sustained by the noise and discomfort resulting from blasting operations; Salli- 
 otte v. King Bridge Co. 65 L.R.A. 636, 58 C. C. A. 466, 122 Fed. 382, on abutter 
 as not entitled to damages for a change in grade of street where property not 
 appropriated thereby. 
 
 Cited in footnote to Lostutter v. Aurora, 12 L. R. A. 259, which authorizes 
 city to fit up abandoned well in street without abutting owner's consent. 
 
 Cited in notes (11 L.R.A. 750) on right of commissioners to close highway; 
 (36 L.R.A.(X.S.) 697, 753, 755, 769, 783, 800) on abutter's right to compensa- 
 tion for railroads in streets. 
 Abuse of privileges by grantee or licensee. 
 
 Cited in Anderson v. Miller, 96 Tenn. 49, 31 L. R. A. 607, 54 Am. St. Rep. 
 812, 33 S. W. 615, holding subtenant's rights in premises cannot exceed his les- 
 sor's; Pittsburg, C. & St. L. R. Co. v. Hood, 36 C. C. A. 426, 94 Fed. 621, hold- 
 ing use of public street by railway must be strictly within provisions of grant; 
 Missouri, K. & T. R. Co. v. Hopson, 15 Tex. Civ. App. 133, 39 S. W. 384, holding 
 release of damages from construction of railway in street does not include dam- 
 ages for unnecessary construction. 
 Right of property ovrner to enjoin use of streets. 
 
 Cited in Wilkins v. Chicago, St. L. & N. 0. R. Co. 110 Tenn. 464, 75 S. W. 1026, 
 holding property owners who own no property on a street about to be closed 
 under a contract with a railroad company cannot enjoin the performance of such 
 contract. 
 
 4 L. R. A. 628, Re BIRDSOXG, 39 Fed. 599. 
 Cruel find unusual punishments. 
 
 Cited in footnotes to Hobbs v. State, 18 L. R. A. 774, which holds imprison- 
 ment from two to ten years and fine not exceeding $2,000 for white-cap conspir- 
 acy not cruel and unusual; Com. v. Murphy, 30 L. R. A. 734, which sustains stat- 
 ute imposing imprisonment for life for criminal intimacy with girl under 
 sixteen. 
 
 Cited in note (35 .u. R. A. 566) on cruel and unusual punishments. 
 
 4 L. R. A. 632, DE KAY v. CHICAGO, M. & ST. P. R. CO. 41 Minn. 178, 16 Am. 
 
 St. Rep. 687, 43 X. W. 182. 
 Liability for injury to passengers at intermediate stations. 
 
 Cited in Schilling v. Winona & St. P. R. Co. 66 Minn. 256, 68 N. W. 1083. 
 
 holding carrier not bound to furnish safe ingress and egress at intermediate 
 
 station for passenger on freight train; Hermeling v. Chicago, St. P. M. & 0. R. 
 
 Co. 105 Minn. 138, 117 X. \V. 341, holding that a passenger on a special train, 
 
 L.R.A. Au. Vol. I. 47. 
 
4 L.R.A. 632] L. R. A. CASES AS AUTHORIliES. 738' 
 
 which was side-tracked, who left the train and went upon the platform of the 
 depot, was then no passenger so that the company owed him the duty of 
 lighting its platform. 
 
 Cited in footnote to Chesapeake & O. R. Co. v. King, 49 L. R. A. 102, which 
 sustains alighting passenger's right to presume against dangerous operation of 
 trains. 
 
 Cited in notes (8 L. R. A. 674) on carrier's duty to use care for safety of pas- 
 sengers; (11 L. R. A. 367) on duty of carrier to assist in landing passengers 
 safely; (15 L. R. A. 399) on rights and liabilities of parties when passenger tem- 
 porarily leaves vehicle before completion of journey. 
 
 Criticised in Alabama G. S. R. Co. v. Coggins, 32 C. C. A. 1, 60 U. S. App. 
 140, 88 Fed. 459, holding company allowing passenger to alight at intermediate- 
 station for reasonable and useful purposes must use due care for his safety. 
 Passengers alighting from train at nnnsnal place. 
 
 Cited in Chicago, St. P. M. & O. R. Co. v. Myers, 25 C. C. A. 486, 49 U. S. 
 App. 279, 80 Fed. 364, holding carrier not liable where passenger of mature age 
 is hurt, unnecessarily exposing himself to danger; Chicago, R. I. & P. R. Co. v. 
 Sattler, 64 Neb. 639, 57 L. R. A. 892, 97 Am. St. Rep. 666, 90 N. W. 649, holding 
 one who leaves train at point not intended for discharge of passengers assumes 
 all ordinary risks; Layne v. Chesapeake & O. R. Co. 66 W. Va. 626, 67 S. E. 1103,. 
 holding that passenger does not cease to be such by alighting at intermediate 
 station to engage in altercation with railroad employee. 
 
 Distinguished in Tubbs v. Michigan C. R. Co. 107 Mich. 115, 61 Am. St. Rep. 
 320, 64 N. W. 1061, holding on invitation to board train standing at station 
 passenger has right to assume way is clear. 
 Contributory negligence on railroad track. 
 
 Cited in Hermeling v. Chicago, St. P. M. & 0. R. Co. 105 Minn. 136, 117 X. W. 
 341, holding that the fact that the conductor called "all aboard" does not ex- 
 cuse the contributory negligence of the deceased in stepping in front of the 
 approaching train. 
 
 Cited in note (27 L.R.A. (N.S.) 129) on duty of passenger to stop, look, and' 
 listen before crossing track adjacent to his train. 
 
 4 L. R. A. 637, JACKSON v. ROWELL, 87 Ala. 685, 6 So. 95. 
 Undue Influence. 
 
 Cited in Adair v. Craig, 135 Ala. 335, 33 So. 902, holding undue influence to 
 be such as dominates and coerces grantor's will; Frick v. Kabaker, 116 Iowa,, 
 510, 90 N. W. 498, holding that undue influence, if relied on to invalidate bill 
 of sale, must be pleaded. 
 Rights assertable l>> heirs. 
 
 Cited in Watson v. Barber, 105 La. 460, 29 So. 949, holding heirs cannot as- 
 sert right decedent was estopped from asserting. 
 Value of homestead. 
 
 Cited in Dolan v. Dolan, 91 Ala. 156, 8 So. 491, holding denial of Ijomestead 
 right for excess of value precludes objection to selection of land in lieu thereoi 
 because less in value. 
 
 4 L. R. A. 641, ERCK v. CHURCH, 87 Tenn. 575, 11 S. W. 794. 
 Adverse possession. 
 
 Cited in Rembert v. Edmondson, 99 Tenn. 18, 63 Am. St. Rep. 819, 41 S. W. 
 935, holding parol sale and delivery of premises held adversely sufficient privity 
 for continuous possession; McLemore v. Durivage, 92 Tenn. 493, 22 S. W. 207,. 
 
739 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 648 
 
 holding successive connected possessions of land, with privity of estate amount- 
 ing to requisite statutory period, constitute adverse possession; Nichols v. New 
 England Furniture Co. 100 Mich. 252, 59 N. W. 155, holding possession not ad- 
 verse where conveyances of predecessors of claimant do not purport to convey 
 premises occupied; Rowland v. Williams, 23 Or. 521, 32 Pac. 402, holding oc- 
 cupance of pre-emption claim and making permanent improvements with intent 
 to claim it, adverse possession; Illinois Steel Co. v. Budzisz, 106 Wis. 514, 48 
 L. R. A. 836, 80 Am. St. Rep. 54, 81 N. W. 1027, holding privity between suc- 
 cessive occupants to constitute adverse possession need not be written convey- 
 ance; Treece T. American Asso. 58 C. C. A. 269, 122 Fed. 601, holding statute 
 not started by unintentional possession of another's land; Sheldon v. Michigan 
 C. R. Co. 361 Mich. 511, 126 N. W. 1056, holding that successive disseisins can- 
 not be tacked so as to constitute continuous possession of land not included in 
 deeds, where grantees rely on deed to show privity of estate; Kittel v. Steger, 
 a21 Tenn. 411, 117 S. W. 500, holding party claiming under a deed conveying 
 by definite boundaries might by entering and inclosing part of such land and 
 claiming adverse!}* acquire title by adverse possession to such boundaries;. 
 Rennert v. Shirk, 163 Ind. 551, 72 N. E. 546, on the acquirement of title to land 
 by adverse possession. 
 
 Cited in footnotes to Heard v. Phillips, 44 L. R. A. 369, which holds void, con- 
 veyance by administrator of land held by third person under bond for title by 
 intestate; Balkham v. Woodstock Iron Co. 11 L. R. A. 230, which holds posses- 
 sion of life tenant after purchasing remainder at administrator's sale, adverse; 
 Sontag v. Bigelow, 16 L. R. A. 326, which holds cotenant's receipt of rents and 
 payment of taxes insufficient claim of adverse possession; Hook v. Joyce, 21 
 L. R. A. 96, which holds title to easement of burial lot acquirable by prescrip- 
 tion; Swan v. Munch, 35 L. R. A. 743, which holds title by prescription obtain- 
 able by wrongful entry under claim of right; Illinois Steel Co. v. Budzisz, 48 
 L. R. A. 830, which holds parol transfer of right of adverse holder sufficient to 
 authorize transferee to tack two possessions. 
 
 Cited in notes (33 L.R.A. (N.S.) 930) on adverse possession due to ignorance 
 or mistake as to boundary; (35 L.R.A. (N.S.) 500) on adverse possession: parol 
 transfer of possession as basis of tacking. 
 
 4 L. R. A. 648, NELSON v. HAYWOOD COUNTY, 87 Tenn. 781, 11 S. W. 885. 
 
 Report of later appeal in Nelson v. Hay wood County, 91 Tenn. 598, 20 S. W. 1. 
 Estoppel. . 
 
 Cited in Miller v. American Mut. Acci. Ins. Co. 92 Tenn. 181, 20 L. R. A. 772, 
 21 S. W. 39, holding insurance company estopped as against good-faith policy 
 holder, to deny proper acceptance of amendment of charter by majority of stock- 
 holders, where officers assume to exercise power conferred thereby. 
 
 Cited in footnotes to Huron v. Second Ward Sav. Bank, 49 L. R. A. 534, which 
 holds city estopped by recitals in bonds as to purpose of issuance; Independent 
 School Dist. v. Rew, 55 L. R. A. 364, which holds municipal corporation estopped 
 to deny truth of recitals in bonds held by innocent purchaser. 
 
 Cited in note (7 Eng. Rul. Cas. 371) on estoppel of municipality to deny 
 validity of railroad aid bonds. 
 Effect of adoption of Constitution. 
 
 Cited in State v. Planters' F. & M. Ins. Co. 95 Tenn. 208, 31 S. W. 992, hold- 
 ing offer of exemption from taxation by charter, withdrawn by Constitution, 
 where charter not accepted until after adoption thereof; Fidelity Trust & 
 Safety-Vault Co. v. Lawrence County, 34 C. C. A. 558, 92 Fed. 580, holding statute 
 conferring right upon county to subscribe for railroad stock on majority vote 
 
4 L.R.A. U4SJ L. R. A. CASES AS AUTHORITIES. 740 
 
 repealed, and not amended, by provision of Constitution requiring three-fourths 
 
 vote. 
 
 Consolidation of corporations. 
 
 Cited in notes (52 L.R.A. 383) on right of corporation to consolidate; (89 
 Am. St. Rep. 629, 631) on effect of consolidation of corporations. 
 Usury. 
 
 Cited in note (62 L. R. A. 54) on conflict of laws as to interest and usury. 
 Bonds in aid of railroad. 
 
 Cited in Colburn v. McDonald, 72 Xeb. 436, 100 X. W. 961, holding a propo- 
 sition to vote bonds to aid in the construction of a railroad is not rendered void 
 because it authorizes county to accept capital stock of company. 
 Stock subscription as of what date. 
 
 Distinguished in Red River Furnace Co. v. Tennessee C. R. Co. 113 Tenn. 
 717, 87 S. \\. 1016, holding a subscription by city to stock of a railroad company 
 \vas not completed until the date the mayor actually made the subscription and 
 not from the date authorized. 
 
 4 L. R. A. 660, PEPPER v. WESTERN U. TELEG. CO. 87 Tenn. 554, 10 Am. 
 
 St. Rep. 699, 11 S. W. 783. 
 Contracts by tele&raph. 
 
 Cited in Postal Teleg. Cable Co. v. Schaefer, 110 Ky. 915, 62 S. W. 1119, hold- 
 ing seller not bound to deliver potatoes at erroneous price transmitted by negli- 
 gence of telegraph company; Strong v. Western U. Teleg. Co. 18 Idaho, 413, 30 
 L.R.A.(X.S.) 420, 109 Pac. 910, Ann. Cas. 1912 A, 55, holding that sender of 
 telegram does not make telegraph company his agent and is not bound to sendee 
 by negligently altered telegram. 
 
 Cited in note (110 Am. St. Rep. 745, 748, 753) on contracts by telegraph. 
 
 Disapproved in Flynn v. Kelly, 12 Ont. L. Rep. 444, holding defendant send- 
 ing an order for goods at plaintiff's expense was not bound to accept the goods 
 where the telegraph company made a mistake in the transmission of the message. 
 Limitation of liability. 
 
 Cited in Louisville & X. R. Co. v. Wynn, 88 Tenn. 326, 14 S. W. 311, holding 
 liability for negligence not avoidable by contract; Joshua L. Bailey & Co. v. 
 Western U. Teleg. Co. 227 Pa. 520, 76 Atl. 736, on disability to stipulate against 
 liability for negligence. 
 
 Cited in footnotes to Brown v. Postal Teleg. Cable Co. 17 L. R. A. 648, which 
 Hiolds limitation of amount of liability for mistake in transmitting telegram void 
 as to mistake caused by negligence; Birkett v. Western U. Teleg. Co. 33 L. R. A. 
 404. which holds valid, condition against liability beyond amount paid for send- 
 ing unrepeated message; Shaw v. Postal Teleg. Cable Co. 56 L. R. A. 486, which 
 upholds provision against liability for mistakes in transmitting cipher telegram 
 without payment of additional fee to insure accuracy; Coit v. Western U. Teleg. 
 Co. 53 L. R. A. 078, which holds one asking for information by telegram bound 
 by agreement of one furnishing it that telegraph company shall not be liable for 
 mistakes in unrepeated messages. 
 
 Cited in note (11 L.R.A. (X.S.) 563) on validity of limitation of liability for 
 "jnrepeated telegrams. 
 Damages for IK-H I iii.-n i transmission of telegrams. 
 
 Cited in Fererro v. Western U. Teleg. Co. 9 App. D. C. 471, 35 L. R. A. 552, 
 holding message "fifty-five cents, usual terms, quick acceptance" sufficiently indic- 
 ative of business transaction to support recovery for actual damages resulting 
 from negligent alteration in transmission; Bierhaus v. Western U. Teleg. Co. 8 
 
74] L. R. A. (ASKS AS AUTHORITIES. [4 L.R.A. 660 
 
 Ind. App. 252, 34 N. E. 581, holding actual damages recoverable for failure to 
 promptly deliver, "Have you claim against P. L. Davis? Answer how much," 
 whereby benefit of attachment lost; Western U. Teleg. Co. v. Crawford, 110 Ala. 
 467, 20 So. Ill, holding actual damages recoverable by sender for negligent al- 
 teration of message "Best offer is seven and eighth" to "seven and eighty;" 
 Postal Teleg. Cable Co. v. Lathrop, 131 111. 585, 7 L. R. A. 477, 19 Am. St. Rep.*55, 
 23 X. E. 583, holding "Please buy in addition to thousand August, one thousand 
 cheapest month," intelligible commercial message entitling sender to actual dam- 
 ages resulting from negligent mistake in transmission; Western U. Teleg. Co. v. 
 Church, 3 Xeb. (Unof.) 33, 57 L.R.A. 909, 90 X. W. 878, holding substantial dam- 
 ages recoverable by sender for delay in sending message addressed to doctor and 
 calling his attendance "at once;" Shaw v. Postal Teleg. & Cable Co. 79 Miss. 696. 
 56 L.R.A. 493, 89 Am. St. Rep. 666, 31 So. 222 (dissenting opinion), for proposi- 
 tion that telegraph company is liable to sender for actual damage resulting from 
 negligent change of "chapter" to "'chatter" in cipher message; Western U. Teleg. 
 Co. v. Church, 3 Xeb. (Unof.) 33, 57 L.R.A. 905, 90 X. W. 878, holding where the 
 delivery of a telegram was negligently delayed the sender might recover dam- 
 ages for the additional pain and suffering in mind and body caused by the 
 failure of physician to receive the telegram in proper time; Hocutt v. Western 
 U. Teleg. Co. 147 X. C. 193, 60 S. E. 980, holding the sender of a telegram could 
 recover only nominal damages for a failure to send a telegram where the act 
 of the sender contributed to the result; Bowie v. Western U. Teleg. Co. 78 S. C. 
 429, 59 S. E. 65, holding that sendee of a message wrongly quoting the price of 
 flour offered for sale, might where he purchased at such supposed price and had 
 to pay the difference recover from the telegraph company the difference between 
 the market value and that stated in the message ; Western U. Teleg. Co. v. Potts. 
 120 Tenn. 44, 19 L.R.A. (N.S.) 481, 127 Am. St. Rep. 991, 113 S. W. 789, on how 
 telegraph company may learn the grounds on which to base an estimate of dam- 
 ages in case of failure to deliver. 
 
 Cited in footnotes to McPeek v. Western U. Teleg. Co. 43 L. R. A. 214, which 
 holds loss of reward offered for capture of criminal, within damages recoverable 
 for failure to deliver telegram; Fererro v. Western U. Teleg. Co. 35 L. R. A. 548, 
 which limits damage for mistake in telegram as to price in offer to sell goods, to 
 difference in price; Western U. Teleg. Co. v. Xorth Packing & Provision Co. 52 
 L. R. A. 275, which holds agent purchasing live stock because of delay in deliv- 
 ering telegram, not required to resell before communicating with principal, to 
 reduce damages; Western U. Teleg. Co. v. Xye & S. Grain Co. 63 L.R.A. 803, 
 which holds difference in value between market value of corn and the price at 
 which it could have been sold the measure of damages for negligent delay of tele- 
 gram; Hays v. Western U. Teleg. Co. 67 L.R.A. 481, which holds that change in 
 telegram so as to quote price of mules at ten dollars per head less than market 
 price resulting in sendee's ordering purchase of designated number, renders tele- 
 graph company liable for difference between price paid and that stated in tele- 
 gram. 
 
 Cited in notes in (10 Am. St. Rep. 782, 788; 117 Am. St. Rep. 290, 291) on 
 elements of damages recoverable for failure to transmit and deliver telegrams: 
 (14 Am. St. Rep. 564: 48 Am. St. Rep. 612) on rights, duties, and liabilities 
 of telegraph companies. 
 Sendee's rig-fat to maintain notion asrainst telegraph company. 
 
 Cited in Shingleur v. Western U. Teleg. Co. 72 Miss. 1034, 30 L. R. A. 445, 48 
 Am. St. Rep. 604. 18 So. 425, holding telegraph company independent principal 
 liable only in action ex delict o by sendee, though liable also ex contract it to 
 sender; Postal Teleg. Cable Co. v. Ford, 117 Ala. 674, 23 So. 684, holding benefit 
 
4 L.R.A. 660] L. R. A. CASES AS AUTHORITIES. 742 
 
 to sendee not sufficient to establish privity essential to action by sendee ex con- 
 tractu against telegraph company for failure to deliver; Barker v. Western U. 
 Teleg. Co. 134 Wis. 153, 14 L.R.A. (N.S.) 536, 126 Am. St. Rep. 1017, 114 X. W. 
 439, holding damages might be recovered by a physician for a failure to deliver 
 a message to him containing an inquiry as to whether he would see other pro- 
 fessionally; Wolf Co. v. Western U. Teleg. Co. 24 Pa. Super. Ct. 135, holding the 
 sendee of a telegram purchasing machinery at prices quoted in a telegram which 
 by mistake of operator were too low might recover damages from the telegraph 
 company; Eureka Cotton Mills v. Western U. Teleg. Co. 88 S. C. 513, 70 S. E. 
 1040, Ann. Cas. 1912 C, 1273 (dissenting opinion), on cause of action of sender 
 for error in transmission of telegram. 
 
 4 L. R. A. 664, CRISMAN v. DORSEY, 12 Colo. 567, 21 Pac. 920, 
 Sufficiency of attachment. 
 
 Cited in Gottlieb v. Barton, 13 Colo. App. 152, 57 Pac. 754, holding attachment 
 imperative where goods were not separated from others nor taken possession of 
 otherwise than by appointment of proprietor of shop in which all goods stored, 
 custodian thereof; Throop v. Maiden, 52 Kan. 263, 34 Pac. 801, holding attach- 
 ment void as against subsequent recorded mortgage where corn crop covered 
 thereby not taken possession of personally nor by agent, nor notices posted, though 
 owner notified of levy. 
 
 Cited in footnote to Battle Creek Valley Bank v. First Nat. Bank, 56 L. R. A. 
 124, which holds physical seizure or dispossession essential to levy of execution 
 on chattels. 
 
 Distinguished in Hendrie & B. Mfg. Co. v. Collins, 13 Colo. App. 12, 56 Pac. 815, 
 questioning whether it' is necessary to take possession of property in hands of 
 third person under garnishment statute. 
 
 4 L. R. A. 670, JOHNSON v. McMULLIN, 3 Wyo. 237, 21 Pac. 701. 
 Damages for breach of contract. 
 
 Cited in Madden v. Caldwell, 16 Idaho, 69, 21 L.R.A.(N.S.) 337, 100 Pac. 
 358, holding the measure of damages recoverable by a vendee who is ousted 
 from possession by a subsequent grantee who was first to record deed are the 
 actual damages sustained by reason of the breach of the covenant to warrant and 
 defend the title and peaceful possession in vendee; Roberts v. Braffett, 33 Utah, 
 91, 92 Pac. 789 (dissenting opinion), on measure of damages recoverable by 
 vendee for breach of contract of sale. 
 
 Cited in footnote to Arentsen v. Moreland, 65 L.R.A. 973. which holds that 
 knowledge by one contracting to purchase land that the vendor hrs only an op- 
 tion contract to purchase and has contracted to sell the saw timber to a third 
 person will not deprive him of his right to damages, where vendor refuses to con- 
 vey more than the land free from the timber. 
 
 Cited in notes (11 L.R.A. 681) on damages for breach of contract; (16 L.R.A. 
 (N.S.) 769; 106 Am. St. Rep. 976) on measure of vendee's damages on breach 
 of contract to convey realty. 
 Time as of essence of contract. 
 
 Cited in note (104 Am. St. Rep. 267) on time as of essence of contract for sale 
 of land. 
 
 4 L. R. A. 673, GOODSELL v. TAYLOR, 41 Minn. 207, 16 Am. St. Rep. 700, 42 
 
 N. W. 873. 
 
 Liability of owner of elevator. 
 Cited in Kentucky Hotel Co. v. Camp, 97 Ky. 431, 30 S. W. 1010, holding owner 
 
743 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 673 
 
 liable for injuries to small boy through operation of car by inexperienced youth; 
 Springer v. Ford, 189 111. 434, 52 L. R. A. 931, 82 Am. St. Rep. 464, 59 N. E. 953, 
 holding lessor liable to employee of tenant injured by fall of freight elevator op- 
 erated by owner due to defective machinery; Mitchell v. Marker, 25 L. R. A. 36, 
 10 C. C. A. 306, 22 U. S. App. 325, 62 Fed. 144, Affirming 54 Fed. 638, holding 
 passenger elevators within rule governing other carriers of passengers requiring 
 Jiighest degree of care; Southern Bldg. & L. Asso. v. Lawson, 97 Tenn. 371, 56 
 Am. St. Rep. 804, 37 S. W. 86, upholding instruction that owner of office building 
 must use toward persons rightfully in building "the highest degree of care and 
 <?aution;" McGrell v. Buffalo Office Bldg. Co. 90 Hun, 34, 35 N. Y. Supp. 599, 
 holding negligence for jury where no door to car, and elevator attained speed of 
 8 feet per second immediately upon starting with unwarned and unattended in- 
 fant as only passenger; Riland v. Hirshler, 7 Pa. Super. Ct. 386, holding negli- 
 gence for jury where plaintiff injured by reason of having stepped into shaft 
 tli rough open door, under descending elevator, where latter apparent and warning 
 given; Obermeyer v. Logeman X^hair Mfg. Co. 229 Mo. 105, 129 S. W. 209, 
 .affirming 120 Mo. App. 69, 96 S. W. 673, holding that question as to whether 
 elevator was negligently constructed was for jury. 
 
 Cited in footnote to Dwindle v. New York C. & |H. R. R. Co. 8 L. R. A. 224, 
 which holds railroad company liable for acts of porter of sleeping or drawing- 
 -room car. 
 
 -Cited in notes (25 L. R. A. 33) on liability for injuries to elevator passenger; 
 (8 L.R.A. 674) on contributory negligence of passenger; (56 Am. St. Rep. 807, 
 808) on liability of owners of elevators used for passengers or employees. 
 
 Distinguished in McDonough v. Lanpher, 55 Minn. 501, 43 Am. St. Rep. 541, 57 
 N. W. 152, holding liability not similar where passenger is employee. 
 Owner of passenger elevator as a common carrier of passengers. 
 
 Cited in Ohio Valley Trust Co. v. Wernke, 42 Ind. App. 334, 84 N. E. 999; Bel- 
 vedere Bldg. Co. v. Bryan, 103 Md. 537, 64 Atl. 44; Quimby v. Bee Bldg. Co. 
 :87 Neb. 196, 138 Am. St. Rep. 477, 127 N. W. 118; Edwards v. Burke, 36 Wash. 
 112, 78 Pac. 610, holding that the character of one operating a passenger elevatoi 
 in a building, is that of a common carrier of passengers, with the same duties 
 and liabilities. 
 
 Disapproved in Burgess v. Stowe, 134 Mich. 210, 96 N. W. 29; Edwards v. 
 Manufacturers Bldg. Co. 27 R. I. 249, 2 L.R.A. (N.S.) 746, 114 Am. St. Rep. 37, 
 61 Atl. 646, 8 A. & E. Ann. Gas. 974, holding that a landlord who maintains and 
 operates a passenger elevator is not a common carrier of passengers. 
 Presumptive negligence. 
 
 Cited in Springer v. Ford, 189 111. 435, 52 L. R. A. 931, 82 Am. St. Re. p. 464, 
 59 N. E. 953, and Ellis v. Waldron, 19 R. I. 371, 33 Atl. 869, holding mere fact of 
 fall of elevator, not obviously defective, raises presumption of negligence against 
 owner in regard to its condition at time of lease; Gibson v. International Trust 
 Co. 177 Mass. 103, 52 L. R. A. 929, 58 N. E. 278, holding presumption of negli- 
 gence arising from injury as result of sudden start of elevator while passenger 
 entering, rebutted by proof that proximate cause was act of one not employed by 
 owner or engaged in operation of car. 
 
 Cited in note (113 Am. St. Rep. 1030) on presumption of negligence from 
 happening of accident causing personal injuries. 
 Expert testimony. 
 
 Cited in Bruce v. Beall, 99 Tenn. 316, 41 S. W. 445, holding question whether 
 
4 L.R.A. 673] L. E. A. CASES AS AUTHORITIES. 744 
 
 "prudent" person would use elevator after breaking of certain, and crystallization 
 of all, strands in elevator rope, solely for jury. 
 
 Cited in note (41 L. R. A. 153) on admissibility of opinions as evidence. 
 
 4 L. R. A. 674, HILL v. MUXDAY, 89 Ky. 36, 11 S. W. 95G. 
 Property rig'hts in ice. 
 
 Cited in footnotes to Marsh v. McXider. 20 L. R. A. 333. which authorizes sale 
 by tenant of right to cut ice on running stream ; Mansfield v. Place, 18 L. R. A. 
 39, which holds prescriptive right to entire ice on pond acquired by cutting from 
 any points desired. 
 What are fixtures. 
 
 Cited in footnotes to Leonard v. Clough, 16 L.R.A. 306, which holds barn 
 placed by owner on his own land on stones resting on the surface a fixture; 
 Murray v. Bender, 63 L.R.A. 783, which holds chairs, stage fixtures, and drop 
 curtains annexed to theater to make possible the use of the building, fixtures. 
 
 Cited in notes (5 L. R. A. 594, 6 L. R. A. 249, 10 L. R. A. 723), on what are 
 fixtures; (9 L.R.A. 700) on tenant's right to remove fixtures; (69 L.R.A. 894) 
 on things placed on land with intention of annexing but never actually attached, 
 as fixtures. 
 
 4 L. R. A. 675, BEARD v. STATE, 71 Md. 275, 17 Am. St. Rep. 536, 17 Atl. 1044, 
 Judgment overruling motion in arrest of judgment affirmed in 74 Md. 131. 21 
 Atl. 700. 
 Instructions in criminal cases. 
 
 Cited in Ridgely v. State, 75 Md. 512, 23 Atl. 1099. holding failure of court orr 
 trial for libel to instruct jury that no evidence to support the charge had been 
 introduced, not ground for reversal : State v. Jules, 85 Md. 313, 36 Atl. 1027, hold- 
 ing court cannot bind jury by instructions defining crime or declaring sufficiency 
 or insufficiency of evidence; Guy v. State, 96 Md. 699, 54 Atl. 879, holding that 
 where jury is judge of law and fact, court may, upon request, instruct as to the 
 law, for assistance of jury; Esterline v. State, 105 Md. 636, 66 Atl. 269, holding 
 instructions of court in criminal case are subject to review on appeal when 
 erroneous; Dick v. State, 107 Md. 17, 68 Atl. 286, holding court in criminal 
 cause might properly refuse to charge that jury were not to pay any attention, 
 to the remarks of the court; Garland v. State, 112 Md. 99, 75 Atl. 631, holding 
 in a criminal case the court cannot be required to instruct the jury. 
 
 Cited in footnote to State v. Main, 36 L. R. A. 623, which holds jury in crim- 
 inal case must take decision of court as to constitutionality of statute on which 
 prosecution based. 
 Evidence as to keeping of disorderly house. 
 
 Cited in Shaffer v. State. 87 Md. 127, 39 Atl. 313, holding general reputation 
 of frequenters competent; State v. McGahan, 48 W. Va. 441, 37 S. E. 573, holding 
 evidence of consort of men and women, nothing improper in their conduct being 
 shown, insufficient to establish bad reputation; State v. Ireton, 89 Minn. 342, 
 94 X. W. 1078, holding fact that public has not been openly disturbed no de- 
 fense to charge of keeping disorderly house under Minnesota statute; State v, 
 Cambron, 20 S. D. 287, 305 X. W. 241, holding testimony as to the manner of 
 business connected with the house, who went there, what they did there 
 was admissible as showing the character of the place. 
 
 Cited in note (20 L. R. A. 612) on evidence in cases of disorderly houses and 
 houses of ill fame. 
 
 Distinguished in State v. Hull, 18 R. I. 209, 20 L. R. A. 615, 20 Atl. 191, holding 
 general reputation of party charged with keeping disorderly house inadmissible. 
 
745 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. G80 
 
 What is a disorderly house. 
 
 Cited in Com. v. Goodall, 1G5 Mass. 591, 43 N. E. 520, holding resort to house 
 for immoral purposes sufficient to render house "disorderly." 
 Suppression of disorderly house. 
 
 Cited in note (4 L. R. A. 751) on suppression of house of ill fame. 
 Evidence of specific Instances to prove character. 
 
 Cited in note (14 L.R.A. (N.S.) 694) on evidence of specific instances to prove 
 character. 
 Dancing: as nuisance. 
 
 Cited in note (18 L.R.A.(N.S.) 700) on dancing as nuisance. 
 
 4 L. R. A. 680, ANDERSON v. BELLINGER, 87 Ala. 334, 13 Am. St. Rep. 46, 6 
 So. 82. 
 
 Followed without discussion in Lessley v. Cooper, 151 Ala. 662, 43 So. 1020. 
 'Sureties; measure of liability. 
 
 Cited in May v. Alabama Nat. Bank, 111 Ala. 513, 20 So. 459, holding liability 
 of surety to be strictly construed according to letter of undertaking; Manatee 
 County State Bank v. Weatherly, 144 Ala. 658, 39 So. 988, holding no liability 
 or guaranty of payment for oranges containing a condition that bill of lading be 
 accompanied by certificate as to soundness according to contract whore the 
 certificate failed to affirm that they were shipped according to such contract; 
 W. J. Lemp Brewing Co. v. Secor, 21 Okla. 544, 96 Pac. 636, on contract of surety- 
 ship to be construed strictly in favor of surety. 
 
 Cited in notes (8 L. R. A. 735) on suretyship; (9 L. R. A. 353) on liability of 
 surety as guarantor; (11 L. R. A. 852) on sureties on bond by assignee for 
 creditors; (29 L.R.A. (X.S.) 751, 752) on defects or irregularities as defense to 
 action on replevin bond which has served its purpose; (63 Am. St. Rep. 327, 338) 
 on discharge of surety or guarantor by matters existing at or before execution 
 of contract. 
 Effect of altering instruments On liability of sureties. 
 
 Cited in Crescent Brewing Co. v. Handley. 90 Ala. 488, 7 So. 912; Vann v. 
 Lunsford, 91 Ala. 579, 8 So. 719; Rudulph v. Brewer, 96 Ala. 193, 11 So. 314, 
 holding surety discharged by material alteration in terms of contract, even 
 though beneficial; White Sewing Mach. Co. v. Saxon, 121 Ala. 409, 25 So. 784, 
 holding signature of attesting witness to unattested bond, after execution, is ma- 
 terial alteration, relieving surety; JEtna Indemnity Co. v. Waters, 110 Md. 698, 
 73 Atl. 712, holding an alteration of a thirteen thousand dollar contract which 
 made a difference of thirty dollars was so material as to discharge a surety 
 thereon. 
 
 Cited in note (86 Am. St. Rep. 87) on unauthorized alteration of written 
 instruments. 
 On liability of principal. 
 
 Cited in Montgomery v. Crossthwait. 90 Ala. 571, 12 L. R. A. 143, 24 Am. St. 
 Eep. 832, 8 So. 498; Lesser v. Scholze. <13 Ala. 339. 9 So. 273: Winter & Loeb v. 
 Pool. 100 Ala. 504, 14 So. 411, same case on second appeal. 104 Ala. 582, 16 So. 
 543 holding unauthorized material alteration of note fatal to recovery, unless 
 made by stranger; Brown v. Johnson Bros. 127 Ala. 294. 51 L. R. A. 404, 85 Am. 
 St. Rep. 134, 28 So. 579, holding signature of another person to note, after de- 
 livery, without knowledge or consent of original maker, discharges latter; Green 
 v. Sneed, 101 Ala. 207, 46 Am. St. Rep. 119, 13 So. 277, holding filling of blank in 
 note with amount larger than that authorized by maker, vitiates instrument, al- 
 though made without fraudulent intent. 
 
4 L.R.A. 680] L. R. A. CASES AS AUTHORITIES. 746' 
 
 On instrument as evidence. 
 
 Distinguished in Alabama State Land Co. v. Thompson, 104 Ala. 573, 53 Am. St. 
 Rep. 80, 16 So. 440, holding unauthorized material alteration in deed by grantee, 
 after execution, does not destroy instrument as evidence of title. 
 Sunday laws. 
 
 Cited in footnotes to Sullivan v. Maine C. R. Co. 8 L. R. A. 427, which holds- 
 riding for exercise on Sunday not violation of statute; First M. E. Church v. 
 Donnell, 46 L. R. A. 858, which sustains subscription to church indebtedness made 
 on Sunday; Porter v. Pierce, 7 L. R. A. 847, which excludes Sunday in determin- 
 ing time to redeem; Rodman v. Robinson, 65 L.R.A. 682, which sustains Sunday 
 contract for purchase and sale of real estate. 
 
 Cited in note (7 L. R. A. 498) on contracts made on Sunday. 
 
 4 L. R. A. 682, COBBS v. HIXSON, 75 Mich. 260, 42 N. W. 818. 
 Invalid contracts. 
 
 Cited in footnotes to Brooks v. Cooper, 21 L. R. A. 617, which holds void, con- 
 tract between newspapers for alternate selection and division of profits of public 
 printing; Livingston v. Page, 59 L. R. A. 336, which holds void, contract by pub- 
 lisher of newspaper to use it in influencing choice of delegates, anJ action of 
 convention. 
 
 Cited in notes (6 L.R.A. 458) on relief in case of fraudulent contract; (6 
 L.R.A. 615, 8 L.R.A. 501) on invalidity of contracts against public policy; 
 (6 Eng. Rul. Cas. 346, 347) on invalidity of agreement affecting selection of 
 officers. 
 
 4 L. R. A. 685, BROWNELL v. GREENWICH, 114 N. Y. 518, 22 N. E. 24. 
 
 Followed, without discussion, in Smith v. Greenwich, 145 N. Y. 650, 40 N.. 
 E. 254. 
 Construction of words "due" and "duly." 
 
 Cited in Slattery v. Doyle, 180 Mass. 29, 61 N. E. 264, holding "due notice" of 
 appointment of administrator not given, unless requirements of statute complied 
 with; Waklee v. Davis, 50 Fed. 523, holding allegation that judgment was "duly 
 entered" is sufficient statement of jurisdictional facts; People ex rel. Batchelor 
 v. Bacon, 37 App. Div. 417, 55 N. Y. Supp. 1045, holding allegation that judgment 
 "was recovered" not equivalent to statement that it was "duly rendered;" Baxter 
 v. Lancaster, 58 App. Div. 382, 68 N. Y. Supp. 1092. holding allegation in action 
 on appeal bond that specific sum was "duly awarded as costs and disbursements" 
 on appeal entitles plaintiff to prove that such matter was made subject of judg- 
 ment below; Clemens v. American F. Ins. Co. 70 App. Div. 437, 75 1ST. Y. Supp. 
 484, holding insufficient allegation of having rendered proofs of loss under fire in- 
 surance policy not equivalent to allegation that conditions of contract had been 
 duly performed; Citizens' State Bank v. Morse, 60 Kan. 529, 57 Pac. 115, holding 
 condition in bond to "duly prosecute" replevin suit does not require obligor to 
 prosecute successfully; People ex rel. Hovey v. Bainbridge, 26 Misc. 223. 56 N. Y. 
 Supp. 04, holding statute requiring petition for submission of proposition to town 
 meeting shall be "duly filed" with officer named, means filed according to said 
 statute; People ex rel. Harris v. Land Office Comrs. 90 Hun, 530, 36 N. Y. Supp. 
 29, holding statement in petition that application was "duly" made according to 
 specified statute, sufficient averment of proper presentation of application toj 
 comptroller for cancelation of tax sales; Rogers v. Trumble, 80 Neb. 319, .125 N. 
 W. 600, holding the finding that the demand was "duly" made for a mortgage 
 does not refer to the form alone but to the substance as well; Reynolds v. Harlem 
 Constr. Co. 71 Misc. 448, 128 N. Y. Supp. 642; Sherl v. Kurzman, CO Mic. 332 > 
 313 N. Y, Supp. 288, holding if an execution was "duly issued" it was issued! 
 
747 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 685 
 
 according to law as well as in matters of form; Hollis v. Brooklyn Heights R. 
 Co. 128 App. Div. 824, 113 X. Y. Supp. 4; Sherman v. Ecker, 59 Misc. 218, lift 
 X. Y. Supp. 265; Levy v. Cohen, 103 App. Div. 198, 92 X. Y. Supp. 1074, 
 on "duly" as meaning according to law; Benedict v. Clarke, 139 App. Div. 243, 
 123 N. Y. Supp. 964, holding tha't allegation that judgment was "duly rendered" 
 is sufficient as against general demurrer. 
 Municipal bonds; validity of judgment of county judge. 
 
 Cited in Hoag v. Greenwich, 133 N. Y. 157, 30 X. E. 842, holding judgment au- 
 thorizing bonding of town clothed with legal presumptions attending ordinary 
 judgments.. 
 
 Cited in footnotes to Rathbone v. Hopper, 34 L. R. A. 674, which authorizes 
 issuance of negotiable bonds by township; Dell Rapids v. Irving, 29 L. R. A. 861, 
 which holds townships organized under state laws not a "municipal corporation." 
 Strict compliance with power to issue bonds or make contracts. 
 
 Cited in People's Bank v. School Dist. Xo. 52, 3 X. D. 499, 28 L. R. A. 644, 57 
 X. W. 787. holding under statute authorizing issue of municipal bonds payable in 
 not less than ten years, bonds payable eleven days less than ten years are void; 
 Bell v. Kirkland, 102 Minn. 224, 13 L.R,A.(X.S.) 798, 120 Am. St. Rep. 62], 
 113 N. W. 271, holding where a municipal corporation let a contract for the 
 construction of a sewer without satisfying statutory requirements and without 
 obtaining consent of property owners through whose land it passed, the bondsmen 
 of contractor in a suit for materials could not set up ultra vires. 
 
 Distinguished in Citizens' Sav. Bank v. Greenburgh, 60 App. Div. 230, 70 X. Y. 
 Supp. 68, holding sale of highway bonds to broker partly for cash and partly for 
 credit, contrary to authority of commissioners, not merely irregularity. 
 Acts of commissioners bindingr on town. 
 
 Cited in Williamsburgh Sav. Bank v. Solon, 136 X. Y. 479, 30 X. E. 1058, hold- 
 ing town bound by representations of commissioners that bonds in aid of railroad 
 were issued in pursuance of authority conferred. 
 When bonds deemed "issued." 
 
 Cited in Sechrist v. Rialto Irrig. Dist. 129 Cal. 645, 62 Pac. 261, holding bonds 
 of irrigation district are not "issued" until delivered for valuable consideration ; 
 Moller v. Galveston, 23 Tex. Civ. App. 700, 57 S. W. 1116, holding statute requir- 
 ing proposition to be submitted to popular vote before "issuance" of bonds, not 
 applicable to bonds previously "executed," but not registered as required by law; 
 Black v. Fishburne, 84 S. C. 453, 66 S. E. 681, holding bonds could not be re- 
 garded as issued until a contract of sale is completed and a delivery of the 
 bonds made; Zimmerman v. Timmerman, 193 X. Y. 493, 86 X. E. 540, holding 
 a mortgage bond of a railroad company is deemed issued when it comes into the 
 hands of the holder so executed and delivered as to bind obligor. 
 Employment of assistance in negotiation of bonds. 
 
 Cited in Armstrong v. Ft. Edward, 159 X. Y. 318, 53 X. E. 1116, Reversing 84 
 Hun, 265, 32 X. Y. Supp. 433, holding authority to water commissioners to sell 
 bonds includes power to employ proper assistance to effect sale, and person em- 
 ployed need not be broker. 
 Rights of purchaser of bonds. 
 
 Cited in Hoag v. Greenwich. 133 X. Y. 163, 30 X. E. 842, Affirming 39 X. Y. S. 
 R. 971, 15 X. Y. Supp. 743, holding issue of bonds making more than 10 per cent 
 of entire loan payable in one year, contrary to statute, not invalid in hands of 
 innocent purchaser; Ontario v. Union Bank, 21 Misc. 771, 47 X. Y. Supp. 927, 
 holding purchaser of town bonds bound to take notice of express statutory limi- 
 tations upon authority of municipality; Citizens' Sav. Bank v. Greenburgh, 17$ 
 
4 L.R.A. 685] L. R. A. CASES AS AUTHORITIES. 748 
 
 X. V. 223, 65 N. E. 978, holding irregularities of officers of towns in the disposal 
 of bonds did not affect their validity in the hands of innocent bona fide purchasers. 
 
 Cited in footnotes to ^Yilkes County v. Call, 44 L. R. A. 252, which denies pos- 
 sibility of bona fide holder of county bonds issued under unconstitutional statute; 
 Flagg v. School Dist. Xo. 70. 25 L. R. A. 363, winch denies right to question, as 
 against bona fide purchaser, consideratidn of bonds issued to pay audited claims. 
 
 Distinguished in Citizens Sav. Bank v. Greenburg, 31 Misc. 431, 65 X. Y. Supp. 
 554, holding authority of town to issue bonds is special, and all persons taking 
 bonds are chargeable with knowledge of limitations on authority imposed by 
 statute. 
 Construction of powers in sreneral. 
 
 Cited in People ex rel. Percival v. Cram, 29 Misc. 366, 61 X T . Y. Supp. 858, hold- 
 ing when power given, or duty imposed, by statute, everything necessary to make 
 power effectual or essential to performance of duty, is "implied;" Litchfield v. 
 Bond, 105 App. Div. 231, 93 N. Y. Supp. 1016, on statute authorizing an act to 
 be done as authorizing all that is necessarily done in its performance. 
 
 Cited in note ( 1 1 L. R. A. 583 ) on delegated authority cannot be redelegated. 
 Validating- acts. 
 
 Cited in Kittinger v. Buffalo Traction Co. 160 X. Y. 384, 54 X. E. 1081, hold- 
 ing that acts done pursuant to statutory authority not strictly followed may be 
 validated by legislature. 
 
 Cited in notes (27 L. R. A. 698) on statutes legalizing invalid municipal con- 
 tracts: (48 L. R. A. 479) on validating defective obligations. 
 Pleading:; action to collect assessment. 
 
 Cited in Ithaca v. Cornell, 75 Hun, 428, 27 X'. Y. Supp. 682, holding allegations 
 of complaint to enforce personal liability for assessment for improvement 
 sufficient. 
 
 Cited in note (15 L.R.A. 673) on cross-examination of defendant in criminal 
 
 Distinguished in People v. Hinksman, 192 X. Y. 433, 85 N. E. 676, holding 
 that general character of witness testifying in his own behalf is not open to 
 attack through evidence of other witnesses unless he introduces evidence of good 
 character. 
 
 4 L. R. A. 692, WEST v. FIRST PRESBY. CHURCH, 41 Minn. 94, 42 X. W. 922. 
 Requisites to "call" to become pastor of Presbyterian church. 
 
 Cited in First Presby. Church v. Myers, 5 Okla. 822, 38 L. R. A. 693, 50 Pac. 
 70, holding "call" to minister from congregation of Presbyterian church, not au- 
 thorized by Presbytery, does not entitle minister to recover salary designated in 
 call. 
 Liability of church corporation upon contract of service. 
 
 Cited in footnote to Parshley v. Third M. E. Church, 30 L. R. A. 574, which de- 
 fies liability of church corporation for services of attorney under procurement 
 of individual trustees. 
 
 Cited in note (38 L.R.A. 688) on liability for salary of pastor. 
 
 4 L. R. A. 699, HEISKELL v. CHICKASAVV LODGE XO. 8, 87 Tenn. 688, 11 S. 
 
 W. 825. 
 Sufficiency of devise to charitable use. 
 
 Cited in Johnson v. Johnson. 92 Tenn. 504. 22 L. R. A. 180, footnote p. 179, 
 36 Am. St. Rep. 104, 23 S. W. 114. holding devise to trustees for "some charitable 
 purpose" preferably educational, but within trustee's discretion, too indefinite in 
 
749 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. G99 
 
 equity; Dye v. Beaver Creek Church, 48 S. C. 456, 59 Am. St. Rep. 724, 26 S. E. 
 717, holding devise "for poor children, for their tuition," not void for uncertainty 
 in objects and beneficiaries; Re John, 30 Or. 525, 36 L. R. A. 252, 47 Pac. 341, 
 holding charitable trust will not fail because judges fail to appoint board ol 
 trustees to succeed executors as authorized, or because board not of perpetual suc- 
 cession in law; Troutman v. De Boissiere, 66 Kan. 39, 71 Pac. 286 (dissenting 
 opinion), majority holding void, gift in perpetual trust to provide home for chil- 
 dren of deceased Odd Fellows; Troutman v. De Boissiere Odd Fellows' Orphans' 
 Home, 66 Kan. 39, 5 L.R.A.(N.S.) 718, 71 Pac. 286 (dissenting opinion), on 
 validity of gift to trustees to provide orphans' home. 
 
 Cited in footnotes to Adams Female Academy v. Adams, 6 L. R. A. 785, which 
 authorizes use for public school of fund bequeathed to establish "female 
 academy;" Crerar v. Williams, 21 L. R. A. 454, which holds arbitrary powers not 
 given trustees of charity by authority to set aside amount of income to pay ex- 
 penses; People ex rel. Atty. Gen. v. Dashaway Asso. 12 L. R. A. 117, which holds 
 promotion of cause of temperance, too vague description of purpose for which 
 corporation formed; Gambel v. Trippe, 15 L. R. A. 235, which holds bequest to 
 trustees to pay over "to some Presbyterian institution" in specified city void for 
 indefiniteness; Kelly v. Nichols, 19 L. R. A. 413, as to what constitutes char- 
 itable use or trust; Harrington v. Pier, 50 L. R. A. 307, which holds bequest for 
 promotion of temperance work in certain city not fatally indefinite; Woman's 
 Foreign Missionary Soc. v. Mitchell, 53 L. R. A. 711, which holds legacy to 
 Board of Managers of Foreign Missionary Society of M. E. Church properly paid 
 to Woman's Foreign Missonary Society; Thompson v. Brown, 62 L.R.A. 398, 
 which upholds devise of fund to be distributed by executor "to the poor" in his 
 discretion. 
 
 Cited in notes (5 L. R. A. 37) on what are charitable gifts; (5 L. R. A. 109) 
 on charitable uses; (6 L. R. A. 84) on what constitutes public charities; (6 L. 
 R. A. 511) on charitable gifts; (10 L. R. A. 767) on construction of wills and 
 administration; (14 L.R.A.(N.S.) 75, 105, 110, 116, 122) on enforcement of 
 general bequest for charity or religion; (63 Am. St. Rep. 262) on what are 
 charitable uses or trusts. 
 Capacity to take property. 
 
 Cited in Rhodes v. Rhodes, 88 Tenn. 638, 13 S. W. 590, holding unincorporated 
 religious organization not qualified to take personalty under capacity to take 
 land for purposes of public worship; Xance v. Busby, 91 Tenn. 314, 15 L. R. A. 
 804, 18 S. W. 874. holding deed to religious society not defeated by nonincorpora- 
 tion, where authorized by statute; Chattanooga, R. & C. R. Co. v. Evans, 14 C. 
 C. A. 122, 31 U. S. App. 432, 66 Fed. 816, holding penal statute declaring it un- 
 lawful for any foreign corporation to acquire property without complying with 
 conditions, does not invalidate purchase without compliance. 
 
 Cited in footnote to Penny v. Croul, 5 L. R. A. 858. which holds board of 
 water commissioners may receive gift of income to ornament and maintain library 
 on waterworks grounds. 
 AVho may attack devise or errant to charity for want of power. 
 
 Cited in Farrington v. Putnam, 90 Me. 433, 38 L. R. A. 350, 37 Atl. 652, hold- 
 ing bequest to charitable corporation in excess of amount permitted by general 
 law. avoidable by state alone: Hubbard v. Worcester Art Museum. 194 Mass. 289, 
 9 L.R.A. (X.S.) 694, 80 X. E. 490, 10 A. & E. Ann. Cas. 1025, holding a devise 
 to a charitable corporation in excess of the amount it is authorized to hold ia 
 valid against all but the state; Barnes v. Multnomah County, l4u Fed. 698 r 
 holding an objection that a county had no power to purchase and hold lands 
 
4 L.R.A. 000 j L. R. A. CASES AS AUTHORITIES. 750 
 
 for the purpose intended could only be raised by the state where the right existed 
 for some purposes. 
 
 Cited in note (60 Am. St. Rep. 320) on right of heirs to assail legacy to cor- 
 poration. 
 
 Distinguished in Buckeye Marble Freestone Co. v. Harvey, 02 Tenn. 120, 18 
 L. R. A. 255, 36 Am. St. Rep. 71, 20 S. W. 427, holding contract by stockholder 
 and president of corporation to pay half of liability which may be fixed by suits, 
 made part of transfer of his stock to another corporation to transfer control, 
 void and unenforceable although vendee has executed its part of contract. 
 Availability of defense of ultra vires. 
 
 Cited in note (70 Am. St. Rep. 178) on doctrine that only state may raise 
 question of ultra vires. 
 
 4 L. R. A. 707, PEOPLE v. HINCHMAN, 75 Mich. 587, 42 N. W. 1006. 
 Sufficiency of information. 
 
 Cited in note ( 10 L. R. A. 247 ) on form and sufficiency of indictment under 
 liquor laws. 
 
 Distinguished in Peters v. Eaton Circuit Judge, 153 Mich. 470, 117 N. W. 68, 
 holding a druggist could not be convicted for the sale of liquor for other than 
 medical purposes where no averment that he had given the prescribed druggists' 
 bond. 
 Testimony of subsequent facts. 
 
 Cited in State v. Ah Lee, 18 Or. 544, 23 Pac. 424, holding testimony as to 
 when Avitness heard of an occurrence hearsay and not competent as to time 
 thereof. 
 Oral evidence of testimony on examination. 
 
 Cited in Kain v. Larkin, 131 N. Y. 312, 30 N. E. 105, holding oral evidence 
 of testimony on examination reduced to writing and read over to and subscribed 
 by witness, incompetent. 
 
 Cited in note (11 Eng. Rul. Cas. 215, 507) on oral evidence of testimony. 
 Reliance upon purchaser's statement. 
 
 Cited in White v. State, 45 Tex. Crim. Rep. 604, 79 S. W. 523, holding court 
 properly refused a charge that if the accused made the sale of the liquor in good 
 faith he could not be convicted although he made no extended investigation of 
 the purpose of the purchaser whom he did not know. 
 
 Cited in notes (7 L. R. A. 297) on permits to pharmacists; (10 L. R. A. 81, 82) 
 on regulation of sales by druggists. 
 
 Distinguished in McDonald v. Casey, 84 Mich. 508, 47 N. W. 1104, holding 
 saloon keeper knowingly selling liquor to drunkard, not excused by reliance upon 
 purchaser's statement that it was for medicine. 
 
 4 L. R. A. 709, PEOPLE v. PEARL, 76 Mich. 207, 15 Am. St. Rep. 304, 42 N. 
 
 W. 1109. 
 Liability for cbastising^ aggressor. 
 
 Cited in Shriver v. Bean, 112 Mich. 514, 7i N. W. 145 (dissenting opinion), 
 majority holding force of testimony of threat made by one claiming accidental 
 discharge of firearm in defense to charge of assault, for jury upon issue of in- 
 tent; Barr v. State, 45 Neb. 464, 63 N. W. 856, holding one honestly and in good 
 faith anticipating great bodily harm, justified in using such force in self-de- 
 fense as to him appeared reasonably necessary; People v. Conley, 106 Mich. 
 425, 64 N. W. 325, holding question of intent to do great bodily harm less than 
 
.751 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 710 
 
 murder, for jury, where testimony tends to show ill will of long standing, and 
 aggravated assault with threat to kill. 
 
 Cited in footnotes to State v. Bartlett, 59 L.R.A. 756, -which holds one inca- 
 pable of defending himself, justified in using deadly weapon when assaulted in 
 street with whip; State v. Evenson, 64 L.R.A. 77, which holds that one assaulted 
 by citizens of town to compel him to leave may repel the attack by such force 
 
 as is necessary short of killing assailants. 
 
 4 L. R. A. 710, LOUISVILLE & N. R. CO. v. HALL, 87 Ala. 708, 13 Am. St. 
 Rep. 84, 6 So. 277. 
 
 Judgment on verdict on new trial reversed in Louisville & N. R. Co. v. Hall, 
 91 Ala. 112, 24 Am. St. Rep. 863, 8 So. 371. 
 
 Referred to in Lay v. Nashville, C. & St. L. R. Co. 131 Ga. 346, 62 S. E. 189, 
 .as having been read to jury on trial. 
 Duty to give warning? at crossings. 
 
 Cited in Louisville & N. R. Co. v. Markee, 103 Ala. 173, 49 Am. St. Rep. 21, 
 15 So. 511, holding railway company under no obligation to employee to blow 
 whistle at curve or crossing, by reason of Code, 1144; Central R. Co. v. Mar- 
 tin, 138 Ala. 546, 36 So. 426, holding statutory requirement as to signals not 
 for protection of trainmen of different companies using same road; (7 L. R. A. 
 317) on duty to ring bell or blow whistle on approaching highway crossing; 
 (9 L. R. A. 158) on duty of railroad to warn travelers on approach to highway 
 crossing; (16 L. R. A. 119) as to railway crossings at which signals of trains 
 are required; Lewis v. Southern R. Co. 143 Ala. 137, 38 So. 1023, holding the 
 requirement of a statute that signals be given as a train approaches a public 
 road crossing only applies to grade crossings; New York, C. & St. L. R. Co. 
 v. Martin, 35 Ind. App. 676, 72 N. E. 654, holding a person injured by reason 
 of his horse taking fright at a train which approached a crossing without giving 
 a signal could not recover damages where at time he was travelling a side 
 road parallel to track; Everett v. Great Northern R. Co. 100 Minn. 319, 9 L.R.A. 
 (N.S.) 708, 111 N. W. 281, ]0 A. & E. Ann. Cas. 294, holding same where horse 
 of plaintiff travelling on a parallel street took fright at a freight car being moved 
 by hand; Lepard v. Michigan C. R. Co. 166 Mich. 387, 40 L.R.A. (N.S.) 1112, 130 
 N. W. 668, holding that sectionman cannot maintain action for negligence of rail- 
 road in failing to blow whistle at crossing. 
 
 Cited in notes (14 Am. St. Rep. 87) on duty of railway company as to persons 
 upon or approaching crossings; (16 Am. St. Rep. 247) on signals at railway 
 .crossings; (57 Am. St. Rep. 781) on negligence at railroad crossings; (100 Am. 
 St. Rep. 202) on right to recover, in absence of privity, for failure of railroad 
 to give signals at crossing. 
 Duty to maintain proper roadbed and appliances. 
 
 Cited in Alabama G. S. R. Co. v. Moody, 92 Ala. 286, 9 So. 238, holding duty 
 to employees discharged by use of appliances ordinarily used on well-regulated 
 roads, though not the newest inventions; Louisville & N. R. Co. v. Banks, 104 
 Ala. 513, 16 So. 547, holding it not wilful negligence to construct bridge so low 
 
 as to compel brakeman to stoop, though possible to build higher at slight ex- 
 pense and without inconvenience to public; Louisville & N. R. Co. v. Campbell, 
 97 Ala. 152, 12 So. 574, holding unnecessary to inspect brakes by removal of 
 rods, where such inspection not customary; Georgia P. R. Co. v. Davis, 92 Ala. 
 309, 25 Am. St. Rep. 47, 9 So. 252, holding brakeman authorized to assume that 
 roadbed and adjoining banks are in safe condition for him to perform duties. 
 
 Cited in note (41 L. R. A. 62) on knowledge as element of employer's liability 
 to injured servant. 
 
4 L.R.A. 710] L. R. A. CASES AS AUTHORITIES. 752 
 
 Evidence concerning: sufficiency. 
 
 Cited in East Tennessee, V. & G. R. Co. v. Thompson, 94 Ala. 639, 10 So. 280, 
 holding length of time supply pipe to water tank had been in use without caus- 
 ing injury to employees, competent in action for death of brakeman caused there- 
 by; Richmond & D. R. ,Co. v. Jones, 92 Ala. 225, 9 So. 276, holding evidence 
 as to drawheads customarily used on engines by well-regulated railroads com- 
 petent; Schlaff v. Louisville & N. R. Co. 100 Ala. 388, 14 So. 105, holding gen- 
 eral reputation of bridge as being too low incompetent to prove that fact, though 
 admissible to show knowledge of its condition by railway company; Louisville & 
 X. R. Co. v. Jones, 130 Ala. 473. 30 So. 586, holding use of appliance by eight 
 other specific railways not conclusive as to sufficiency; Brady v. North Jersey 
 Street R. Co. 76 X. J. L. 748, 71 Atl. 238, holding an entry in a book kept by the 
 company in which motormen were required to enter the condition of their 
 cars was admissible in evidence as showing notice to the master of an existing 
 condition. 
 Necessity justifying: dangerous condition. 
 
 Distinguished in Kansas City, M. & B. R. Co. v. Burton, 97 Ala. 251, 12 So. 
 88, holding convenience of shipper no excuse for leaving freight car on siding 
 dangerously near adjoining track. 
 Assumption of risk. 
 
 Cited in Louivsille & N. R. Co. v. Stutts, 105 Ala. 376, 53 Am. St. Rep. 127, 
 17 So. 29, holding engineers continuing in service aware of patent defects in en- 
 gine and trestle cannot recover for injuries due to such defects; Highland Ave. 
 & Belt R. Co. v. Walters, 91 Ala. 442, 8 So. 357, holding continuance in employ 
 after knowledge of danger and notice to employer not negligence unless danger 
 so great that reasonable man would not have continued in service; Birmingham 
 R. & Electric Co. v. Allen, 99 Ala. 370, 20 L. R. A. 460, 13 So. 8, holding em- 
 ployers' liability act (Code, 2590) does not alter rule where employee continues 
 in service after knowledge of danger, although employer aware of defect; Chi- 
 cago, R. I. & P. R. Co. v. Galloway, 137 111. App. 306, on doctrine of assumed risk 
 as not applying against an inexperienced servant. 
 Contributory negligence. 
 
 Cited in Chewning v. Ensley R. Co. 100 Ala. 495, 14 So. 204, holding party 
 waiting to board train, who absent-mindedly steps back upon cross-ties where 
 struck by engine, guilty of contributory negligence; Tuscaloosa Waterworks Co. 
 v. Herren, 131 Ala. 84, 31 So. 444, holding no recovery by employee injured 
 through fall caused by beam temporarily placed carelessly on stairway, of which 
 he was aware but had momentarily forgotten; Louisville & N. R. Co. v. Banks, 
 104 Ala. 513, 16 So. 547, holding no recovery for death of brakeman struck by 
 low bridge under which he had passed many times and of which duly warned; 
 Anderberg v. Chicago & N. W. R. Co. 98 111. App. 210, holding unnecessary to 
 \varn switchman of danger of bridge under which he had passed several times 
 daily for four months; McLaren v. Alabama Midland R. Co. 100 Ala. 510, 14 So. 
 405, holding no recovery by passenger injured while boarding slowly moving 
 train, by reason of dangerous proximity of platform, where aware of danger of 
 which temporarily forgetful; Wood v. Richmond & D. R. Co. 100 Ala. 661, 13 
 So. 552, holding temporary forgetfulness by passenger, of lumber negligently 
 piled on platform, prevents recovery for injury caused thereby while approaching 
 to board train. 
 
 Cited in notes (7 L. R. A. 678, 12 L. R. A. 279) on contributory negligence 
 as defense; (49 L. R. A. 54) on contributory negligence in entering or remaining 
 in employment. 
 
753 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 710 
 
 Pleading: contributory negligence. 
 
 Cited in Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 424, 11 So. 262, hold- 
 ing general issue insufficient to raise question of contributory negligence; Mc- 
 Donald v. Montgomery Street R. Co. 110 Ala. 175, 2. So. 317; Leaven worth 
 Light & Heating Co. v. \Yaller, 65 Kan. 519, 70 Pac. 365, holding no admission 
 of defendant's negligence where plea of contributory negligence accompanied 
 by denial. 
 Obscure or argumentative instruction to jury. 
 
 Cited in Georgia P. R. Co. v. Propst, 90 Ala. 3, 7 So. 635; Croft v. State. 95 
 Ala. 4, 10 So. 517; Troy Fertilizer Co. v. Norman, 107 Ala. 682, 18 So. 201; 
 Adams v. State, 115 Ala. 91, 67 Am. St. Rep. 17, 22 So. 612; McGee v. State, 
 117 Ala. 231, 23 So. 797, holding such instruction should not be given; Ala- 
 bama Consolidated Coal & I. Co. v. Heald, 168 Ala. 651, 53 So. 162, holding that 
 charge that if jury believe that foul air in mine was proximate cause of plain- 
 tiff's death, and not order of master mechanic, there could be no recovery, is 
 properly refused. 
 Harmless error. 
 
 Cited in Louisville & N. R. Co. v. Trammell, 93 Ala. 353, 9 So. 870, and Louis- 
 ville & N. R. Co. v. Davis, 91 Ala. 493, 8 So. 552, holding judgment not reversed 
 for error in sustaining demurrer to plea where benefit of matters specially 
 pleaded obtained under general issue; Northern Alabama R. Co. v. Mansell, 138 
 Ala. 561, 36 So. 459, holding defendant not injured by sustaining of demurrer 
 to plea where its averments were admissible under general issue. 
 Duty to vrarn servant. 
 
 Cited in Fisher v. Prarie, 26 Okla. 343, 109 Pac. 514, holding that it is duty- 
 of master to warn lineman of dangers of duties of troubleman, though lineman 
 represented himself as experienced and competent. 
 
 Cited in notes (44 L. R. A. 54, 83) on duty of master to instruct and warn-, 
 servant as to perils of employment. 
 Exemplary or punitive damages. 
 
 Cited in Florida C. & P. R. Co. v. Mooney, 45 Fla. 293, 110 Am. St. Rep. 73, 
 33 So. 1010, holding court erred in refusing to charge that exemplary or punitive 
 damages should not be given where there was no evidence tending to prove neg- 
 ligence of gross character. 
 Pleading negligence. 
 
 Cited in Atlantic Coast Line R. Co. v. Beazley, 54 Fla. 325, 45 So. 761, holding 
 a declaration in action for personal injuries which states that plaintiff in the 
 course of his duties occupied a particular position where he was injured because 
 of defendant's negligence, is not demurrable as showing that plaintiff voluntarily 
 exposed himself to such danger; Lacy- Buck Iron Co. v. Holmes, 164 Ala. 102, 
 51 So. 236, holding that complaint for death of servant by being knocked from 
 car by overhead beam through failure of engineer to give warning on starting 
 must allege duty of engineer to give warning. 
 Admissibility of evidence of condition before and after accident. 
 
 Cited in note (32 L.R.A.(N.S.) 1163) on admissibility of evidence of condition 
 before and after accident of property whose defects alleged to have caused injury. 
 
 4 L. R. A. 716, HOUSTON v. TLMMKUMAN, 17 Or. 499, 11 Am. St. Rep. 848, 
 
 21 Pac. 1037. 
 Who affected by Us neudeiis. 
 
 Cited in Jennings v. Kiernan, 35 Or. 358, 55 Pac. 443, holding judgment for 
 United States annulling land patent not binding upon one without notice who 
 L.R.A. Au. Vol. L 48. 
 
4 L.E.A. 7] 6] L. R. A. CASES AS AUTHORITIES. 754 
 
 to knowledge of government has equity under executory purchase, although pend- 
 inf that action he receives deed which he fails to record; Bergman v. Inman, 43 
 Or. 459, -99 Am. St. Rep. 771, 72 Pac. 1086, holding purchaser of logs pending 
 litigation to determine question of lien, takes subject to judgment of court in 
 relation thereto; Posson v. Guaranty Loan Asso. 44 Or. 107, 74 Pac. 923. holding 
 an assignment hy defendant during the pendency of a suit of the subject-matter 
 thereof does not defeat the suit. 
 
 Cited in footnotes to Mach v. Blanchard, 58 L.R.A. 811, which holds mortga- 
 gee of land restored to mortgagor by default judgment against his grantee, takes 
 subject to having title defeated by opening of judgment; DiNola v. Allison, 65 
 L.R.A. 419, which holds title of stranger purchasing after taking of appeal from 
 judgment from one who had purchased land at his own foreclosure sale subject 
 to defeat by reversal of the judgment. 
 
 Cited in notes (7 L. R. A. 812) on notice of Us pendens; (8 L. R. A. 553) on 
 effect of notice of pendency of suit; (56 Am. St. Rep. 854, 858, 864, 865, 870) 
 on law of lis pendens. 
 When lis pendens effective. 
 
 Cited in Moody v. Millen, 103 Ga. 454, 30 S. E. 258, holding doctrine of lis 
 pendens inapplicable to bona fide purchaser from claimant, whose claim, duly 
 returned and filed, was interposed before notice; Moragne v. Don, 143 Ala. 463, 
 111 Am. St. Rep. 52, 39 So. 161, 5 A. & E. Ann. Cas. 331, holding the pendency 
 of a bill in chancery for the removal of the administration of an estate into 
 chancery is not lis pendens to affect the title to land sold under execution issued 
 on the decree rendered. 
 Title to realty in suit for divorce. 
 
 Cited in Wetmore v. Wetmore, 40 Or. 333, 67 Pac. 98, holding title to realty 
 cannot be litigated in proceeding primarily for divorce, and which fails on that 
 ground; Huffman v. Huffman, 47 Or. 615, 114 Am. St. Rep. 943, 86 Pac. 593, 
 holding where a wife was granted a divorce and custody of children court had 
 no authority to award to her possession of land occupied by the husband within 
 the intention of homestead laws. 
 
 Cited in note (102 Am. St. Rep. 706) on power of courts to create and enforce 
 liens to secure payment of alimony. 
 Allegation sufficient to reach realty. 
 
 Cited as obiter in Ross v. Ross, 21 Or. 12, 26 Pac. 1008, holding divorced party 
 without title to one third of other's realty where same not mentioned in allega- 
 tions or decree. 
 
 4 L. R. A. 721, CARTERVILLE v. COOK, 129 111. 152, 16 Am. St. Rep. 248, 
 
 22 N. E. 14. 
 Liability in cases of concurrent negligence. 
 
 Cited in Doremus v. Root, 23 Wash. 715, 54 L. R. A. 657, 63 Pac. 572, holding 
 master not liable on theory of respondent superior when servant not found neg- 
 ligent; Johnson v. Chapman, 43 W. Va. 642, 28 S. E. 744, holding owner of 
 building crushed by two other buildings can maintain joint or separate action 
 against owners; Cook v. Minneapolis, St. P. & S. Ste. M. R. Co. 98 Wis. 643, 
 40 L. R. A. 463, 67 Am. St. Rep. 830, 74 N. W. 561, holding railway not liable 
 for loss due to fire negligently allowed to spread from its right of way and 
 combining with independent fire that would have burned property; Matthews 
 v. Delaware, L. & W. R. Co. 56 N. J. L. 37, 22 L. R. A. 262, 27 Atl. 919, hold- 
 ing railway liable for injury to passengers in street car crossing railway due 
 to combined negligence of railways; Omaha v. Richards, 49 Neb. 249, 68 X. W. 
 528, holding city liable for drowning of boy in pond negligently permitted to 
 
755 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 721 
 
 accumulate in street and left unguarded; Olathe v. Mizee, 48 Kan. 438, 30 Am. 
 St. Rep. 308, 29 Pac. 754, holding city Habit; for injury due to one crossing 
 street, falling into unguarded and unlighted excavation while stepping aside 
 for passersby; Cleveland, C. C. & I. R. Co. v. Wynant, 134 Ind. 695, 34 X. E. 569, 
 holding railway liable for injury due to car and noise concurring to frighten 
 horse; Brown v. Coxe Bros. & Co. 75 Fed. 691. holding cause not removable 
 to Federal court when action for concurring negligence is treated as joint lia- 
 bility preventing severability ; Ashborn v. Waterbury, 70 Conn. 555, 40 Atl. 458, 
 holding town liable for accident due to falling down embankment unguarded by 
 railing, combined with depression and pile of stone in highway; Colorado Mortg. 
 & Invest. Co. v. Rees, 21 Colo. 446, 42 Pac. 42, holding company liable for un- 
 safe condition of elevator the door of which was left open by trespasser; Malott 
 v. Hood, 99 111. App. 363, holding master liable for injury due to absence of 
 handholds combined with uneven condition of ground; Chicago & E. I. R. Co. 
 v. Mochell, 96 111. App. 183, holding railroad liable for injury due to concur- 
 rence of train running at unlawful speed and recklessness of street railway em- 
 ployees; Flora v. Pniett, 81 111. App. 164, holding city liable for injury due to 
 unsafe condition of lumber pile, combined with boy sliding down a post ; Mc- 
 Gregor v. Reid, M. & Co. 178 111. 470, 69 Am. St. Rep. 332, 53 N. E. 323, hold- 
 ing master liable for injury due to negligence in putting up elevator, combined 
 with want of repair of safety device ; Chicago & A. R. Co. v. Nelson, 53 111. App. 
 154. holding railroad liable for injury to lad slipping under engine from cinder 
 pile at crossing; Murphysboro v. Woolsey, 47 111. App. 449, holding city liable 
 for injury due to child by negligence of mother, combined with slanting side- 
 walk; Champaign v. Jones, 32 111. App. 181, holding city liable for injury due 
 to sudden backing of other team and frozen mudrow in middle of street, while 
 one is driving between them; Danville v. Makemson, 32 111. App. 114, holding 
 city liable for injury due to shying horse throwing wagon down unguarded 
 embankment; Swisher v. Illinois C. R. Co. 182 111. 549, 55 N. E. 555, holding 
 railroad liable for injury due to combined negligence of vice principal and fel- 
 low servant: Rock Falls v. Wells, 169 111. 227, 48 N. E. 440, holding city liable 
 for injury due to concurrence of runaway and defective condition of street; 
 Pullman Palace Car Co. v. Laack, 143 111. 261, 18 L. R. A. 220, 32 N. E. 285, 
 holding master liable for injuries due to its negligence concurring with that of 
 fellow servant; St. Louis Bridge Co. v. Miller, 138 111. 476, 28 N. E. 1091, Affirm- 
 ing 39 111. App. 375, holding bridge company liable for injuries due to squeez 
 ing by drove of mules driven over bridge without proper barriers between 
 footpath and carriageway; Joliet v. Shufeldt, 144 111. 409, 18 L. R. 
 A. 751, 36 Am. St. Rep. 453, 32 N. E. 969, Affirming 42 111. App. 219, holding 
 city liable for injury due to concurrence of accidental runaway and defective 
 street; Boyle v. Illinois C. R. Co. 88 111. App. 259, holding evidence did not 
 disclose contributory negligence on part of railway; Armour v. Golkowska. 202 
 111. 149. 66 X. E. 1037, holding it unnecessary for servant, injured by falling 
 of barrel from unrailed platform, to show force that set it in motion; Farrell v. 
 Eastern Machinery Co. 77 Conn. 492. 68 L.R.A. 242, 107 Am. St. Rep. 45, 59 Atl. 
 611, holding an employer was liable for the death of an employee through the 
 negligence of one in charge of the installation of elevators who negligently sup- 
 plied defective material from the supply kept by defendant for that purpose: 
 Missouri Malleable Iron Co. v. Dillon. 206 111. 157, 69 X'. E. 12. holding defendant 
 liable for injuries to an employee by the falling of a hot iron casting from a 
 truck, one of the wheels of which had dropped into a hole in the floor where the 
 foreman in charge was also negligent in the way he ordered its removal; Siegel, 
 .C. & Co. v. Trcka, 218 111. 5G3, 2 L.R.A. (X.S.) 650, 109 Am. St. Rep. 302, 7:> X. K. 
 
4 L.R.A. 721] L. R. A. CASES AS AUTHORITIES. 756 
 
 1053, Affirming 115 111. App. 59, holding a master is not excused from liability for 
 an injury to servant through the act of a fellow servant where the accident 
 would not have happened but for the negligent construction of an elevator; 
 Chicago & A. R. Co. v. Averill, 224 111. 521, 79 X. E. 654, holding a railroad 
 company was not relieved from liability for an injury to passenger on a street 
 car due to a misunderstanding of signals between the motorman and conductor 
 of street car where it would not have happened if defendant company maintained 
 gates at street crossings as required by ordinance; Ford v. Hine Bros. Co. 237 111. 
 469, 86 X. E.' 1051, holding defendant was not excused from liability to conductor 
 of a street car for injury by reason of the mismanagement of a team, by negli- 
 gence of motorman in failing to let the wagon pass; Flanagan v. Wells Bros. Co. 
 237 111. 87, 127 Am. St. Rep. 315, 86 X. E. 609, Affirming 139 111. App. 241, refus- 
 ing an instruction that defendants were not liable for the consequences of their 
 negligent act if the negligence of a third party concurred in the injury; Strauhal 
 v. Asiatic S. S. Co. 48 Or. 107, 85 Pac. 230, holding a steamship company might 
 be held liable for the death of an employee caused by a barge which they had 
 chartered turning over because of its defective condition notwithstanding the 
 owners were also liable for furnishing a barge in such a condition; Elgin, A. 
 & S. Traction Co. v. Wilson, 120 111. App. 373; Byron Teleph. Co. v. Sheets, 122 
 111. App. 8; Chicago v. Reid, 141 111. App. 526; Illinois C. R. Co. v. Siler, 229 111. 
 397, 15 L.R.A.(X.S.) 823, 82 X. E. 362, 11 A. & E. Ann. Cas. 368, on effect of 
 concurring negligence of a third party on liability of one sued for negligently 
 causing an injury; Indianapolis Union R. Co. v. Waddington, 169 Ind. 459, 82 
 N. E. 1030, on right to maintain a joint action against parties whose concurrent 
 negligence causes an injury. 
 
 Cited in footnote to Horrigan v. Clarksburg, 5 L. R. A. 609, which denies 
 recovery for injury on defective highway where negligence in using defective 
 sleigh concurred. 
 
 Cited in notes (17 L. R. A. 35) on effect of concurring negligence of third 
 person on liability of one sued for negligently causing injury; (6 L. R. A. 143) 
 on imputing one person's negligence to another; (20 L.R.A.(X.S.) 742) on liability 
 of municipality for defects or obstructions in streets; (106 Am. St. Rep. 608) on 
 liability of initial carrier for torts or negligence of connecting lines. 
 Liability of master for neglig-ence of servant. 
 
 Cited in McGinnis v. Chicago, R. I. & P. R. Co. 200 Mo. 360.. 9 L.R.A.iX.S.) 
 880, 118 Am. St. Rep. 661, 98 S. W. 590, 9 A. & E. Ann. Cas. 656, on when em- 
 ployer liable for the negligent act of an employee. 
 
 Annotation cited in Southern R. Co. v. Harbin, 135 Ga, 125, 30 L.R.A. (X.S.) 
 408, 68 S. E. 1103, 21 Ann. Cas. 1011, holding that verdict against railroad and 
 for engineer, in action against both for negligence, will be set aside. 
 Proximate cause of injury. 
 
 Cited in Metropolitan Acci. Asso. v. Taylor, 71 111. App. 139, holding voluntary- 
 exposure the proximate cause of death of insured by locomotive while on track; 
 North Chicago Street R. Co. v. Dudgeon, 184 111. 488, 56 N. E. 796, Affirming 
 83 111. App. 533, holding pile of stones left beside track was proximate cause of 
 injury; Chicago City R. Co. v. O'Donnell, 109 111. App. 622, holding conductor's 
 threats frightening boy off car so that he was run over by another car, efficient 
 cause of accident; Louisville & N. R. Co. v. Morgan, 165 Ala. 421, 51 So. 827, 
 holding that want of railing was proximate cause, where shying of inner mule 
 pushed wagon off platform; Obermeyer v. F. H. Logeman Chair Mfg. Co. 221) Mo. 
 110, 129 S. W. 209. Affirming 120 Mo. App. 74, 96 S. W. 673, holding defendant 
 was liable where an employee while stepping back to avoid another employee who 
 had stepped on his foot, was injured because of the negligent construction of an 
 
757 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 724 
 
 elevator; Miller v. United R. Co. 155 Mo. App. 541, 134 S. W. 1045, holding owner 
 of team leaving it unhitched liable for injury to passenger on car with which it 
 collided, though motorman could have prevented collision; Harton v. Forest City 
 Teleph. Co. 141 X. C. 461, 54 S. E. 299, holding defendant company allowing 
 a telephone pole to remain in such a defective condition that it fell across a road 
 was liable where after being replaced by a traveler it again fell killing plaintiffs 
 intestate; Forney v. Melvin, 130 111. App. 205, holding defendant village was liable 
 for injury to plaintiff by a fall due to her slipping on a side walk and catching 
 her foot in a hole negligently allowed to remain in sidewalk; Seith v. Common- 
 wealth Electric Co. 241 111. 261, 24 L.R.A.(N.S-) 982, 132 Am. St. Rep. 204, 89 
 N. E. 425, on it not being necessary that negligent act be the sole cause in order 
 to be the proximate cause; Miller v. Kelly Coal Co. 145 111. App. 454, denning 
 proximate cause. 
 
 Cited in notes (8 L.R.A. 84) on intervening agency breaking causal connection; 
 (9 L.R.A.(X.S.) 549) on obstructions in highway as proximate cause of injury 
 notwithstanding intervening cause; (18 L.R.A. (X.S.) 1138) on what injuries may 
 be deemed proximately caused by absence of guard rail in highway; (36 Am. St. 
 Rep. 845) on proximate and remote cause. 
 Contribution among joint wrong-doers. 
 
 Cited in Eaton & P. Co. v. Mississippi Valley Trust Co. 123 Mo. App. 130, 100 
 S. W. 551, on liability for contribution among joint wrong-doers. 
 
 4 L. R. A. 724. JEXSEX v. UNION P. R. CO. 6 Utah, 253, 21 Pac. 994. 
 Dae process of law. 
 
 Cited in Schenck v. Union P. R. Co. 5 Wyo. 433, 40 Pac. 840, holding statute 
 in relation to killing stock by engines and cars unconstitutional in rendering 
 railway company liable in absence of negligence; Denver & R. G. R. Co. v. Out- 
 calt, 2 Colo. App. 405, 31 Pac. 177,. holding statute fixing upon railroad compa- 
 nies absolute liability for stock killed or injured and authorizing recovery oi 
 double appraised value, with attorney's fee, upon failure to pay within time 
 prescribed, unconstitutional; Ives v. South Buffalo R. Co. 201 X. Y. 298, 34 
 L.R.A.(X.S.) 175, 94 X. E. 431, Ann. Cas. 1912 B, 156, holding that statute making 
 employer liable for injury without his fault, unless it was caused by wilful mis- 
 conduct of employee, is void. 
 
 Cited in footnotes to Wadsworth v. Union P. R. Co. 23 L. R. A. 812, which 
 holds unconstitutional act creating absolute liability for stock killed or injured 
 by trains; Gulf, C. & S. F. R. Co. v. Ellis, 17 L. R. A. 286. which holds valid 
 act authorizing attorneys' fees against railroad corporations in suits on claims; 
 Carleton v. Rugg, 5 L. R. A. 193, which holds statute authorizing injunction 
 against liquor nuisance, does not unlawfully deprive of property or privileges. 
 
 Cited in notes (13 L. R. A. 68, 11 L. R. A. 225, 5 L. R. A. 359) on due process 
 of law; (25 L. R. A. 162) on constitutionality of statutes making railroad 
 companies absolutely liable for damage by fires set out by them or for stock 
 killed by them irrespective of negligence; (31 L.R.A.(X.S.) 862) on constitu- 
 tionality of statutes requiring railroad to fence tracks and build cattle guards; 
 (62 Am. St. Rep. 170) on protection of corporations from special and hostile legis- 
 lation. 
 Joinder of causes of action. 
 
 Cited in Oberndorfer v. Mover, 30 Utah, 332, 84 Pac. 1102, denying a motion 
 to compel plaintiff to elect between two counts, one on an open account and one 
 for an account stated for the same cause of action. 
 
4 L.R.A. 726] L. R. A. CASES AS AUTHORITIES. 758 
 
 4 L. R. A. 726, Re KANAKA XI AN, 6 Utah, 259, 21 Pac. 993. 
 Who are capable of naturalization. 
 
 Cited in Re Yamashita, 30 Wash. 237, 59 L. R. A. 672, footnote, p. 671, deny- 
 ing right of Japanese to become citizens of United States; Re San C. Po, 7 Misc. 
 472, 28 N. Y. Supp. 383, holding Burmese entitled to United States citizenship; 
 State ex rel. United States v. District Ct. 107 Minn. 450, 22 L.R.A.(N.S.) 1042 r 
 120 JJ". W. 898, holding an applicant otherwise qualified for naturalization should 
 not necessarily be denied the right because he has no accurate knowledge of the 
 Federal Constitution and form of government; Re Halladjian, 174 Fed. 844, hold- 
 ing Armenians entitled to naturalization. 
 
 Cited in note (22 L.R.A. (N.S.) 1042) on test of intelligence in naturalization 
 proceedings. 
 
 4 L. R. A. 728, LEONARD v. POOLE, 114 N. Y. 371, 11 Am. St. Rep. 667, 21 
 
 N. E. 707. 
 Combinations in restraint of trade. 
 
 Cited in People v. Sheldon, 66 Hun, 593, 21 N. Y. Supp. 859, holding associa- 
 tion of coal dealers to regulate prices, though restricted to reasonable rates, il- 
 legal; People v. Milk Exchange, 145 N. Y. 274, 27 L. R. A. 441, 45 Am. St. Rep. 
 609, 39 N. E. 1062, holding corporation fixing price of milk sold on commission 
 to stockholders combination in restraint of trade; United States v. Addyston 
 Pipe & Steel Co. 46 L. R. A. 134, 29 C. C. A. 157, 54 U. S. App. 723, 85 Fed! 288, 
 holding agreement between pipe companies restricting competition and fixing 
 prices illegal; National Harrow Co. v. E. Bement & Sons, 21 App. Div. 295, 47 
 N. Y. Supp. 462, holding contract by corporation controlling patents limiting 
 manufacture by licensees and fixing prices, invalid; De Witt Wire-Cloth Co. v. 
 New Jersey Wire-Cloth Co. 16 Daly, 532, 14 N. Y. Supp. 277, holding agreement 
 to regulate price of wirecloth illegal ; Cummings v. Union Blue Stone Co. 164 
 N. Y. 405, 52 L. R. A. 263, 79 Am. St. Rep. 655, 58 N. E. 525, holding contract 
 by principal producers of blue stone to sell only through common agent to main- 
 tain prices, illegal ; John D. Park & Sons Co. v. National Wholesale Druggists' 
 Asso. 175 N. Y. 36, 62 L. R. A, 647, 96 Am. St. Rep. 578, 67 N. E. 136 (dissent- 
 ing opinion), majority upholding agreement between manufacturers of medicines 
 and association of wholesale dealers for maintenance of uniform jobbing and 
 selling price; Southard v. George W. Jump Co. 43 Misc. 170, 88 N. Y. Saipp.. 
 317, holding combination to prevent competition at private sale not illegal; People 
 v. Klaw, 55 Misc. 91, 106 N. Y. Supp. 341, holding a contract for the manage- 
 ment of theatres by which parties controlling theatres agree not to book rival 
 attractions and that certain attractions are to play or not to play in certain 
 localities at certain times was not a contract in restraint of trade. 
 
 Cited in footnotes to Herriman v. Menzies, 35 L. R. A. 318, which sustains 
 association of master stevedores fixing minimum prices with stipulation against 
 unauthorized discounts; State v. Phipps, 18 L. R. A. 658, Avhich holds combina- 
 tion by foreign companies to increase rates of insurance unlawful. 
 
 Cited in note (13 L. R. A. 770) on nature of monopolies. 
 Validity of anti-monopoly latva. 
 
 Cited in Re Davies, 168 N. Y.' 101, 56 L. R. A. 860, 61 N. E. 118, holding 
 anti-monopoly act relating to commodities in common use valid as codification 
 of common law; State ex rel. Durner v. Huegin, 110 Wis. 253, 62 L. R. A. 742, 
 S5 N. W. 1046, holding contracts restricting competition void at common law 
 and subject to legislative exercise of police power. 
 Action* based on illegal contracts. 
 
 Cited in Judd v. Harrington, 139 N. Y. 110, 34 N. E. 790, holding courts wilL 
 
759 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 732 
 
 not enforce contract to suppress competition; Unckles v. Colgate, 148 N. Y. 
 535, 43 X. E. 59, Aiiinning 72 Hun, 12,5, 25 N. Y. Supp. 672, holding equity will 
 not distribute assets of unlawful combination; Texas Standard Oil Co. v. Adoue, 
 83 Tex. 663, 15 L. R. A. 603, 29 Am. St. Rep. 690, 19 S. W. 274, holding action 
 not maintainable upon contract between cotton-oil mills fixing buying and sell- 
 ing prices; Gray v. Oxnard Bros. Co. 59 Hun, 393, 13 X. Y. Supp. 86, Affirming 
 31 N. Y. S. R. 971, 11 N. Y. Supp. 118, holding receiver of corporation dissolved 
 for participation in illegal combination cannot enforce accounting; McMullen v. 
 Hoffman, 174 U. S. 655, 43 L. ed. 1123, 19 Sup. Ct. Rep. 839, Affirming 45 L. R. A. 
 413, 28 C. C. A. 182, 48 U. S. App. 596, 83 Fed. 376, holding action not maintain- 
 able on agreement to share profits on public contract obtained by collusive bid- 
 ding; Winchester Electric Light Co. v. Veal, 145 Ind. 511, 41 N. E. 334, holding 
 action not maintainable by officer loaning public funds in violation of statute; 
 Work v. American Mut. L. Ins. Co. 31 Ind. App. 157, 67 X. E. 458, holding pre- 
 miums paid on illegal policy not recoverable; Sheppey v. Stevens, 185 Fed. 153, 
 sustaining demurrer to complaint on agreement between heirs of wealthy man 
 to endeavor to break- off his improper relations with others and to share equally 
 whatever is left by him to either; Sirkin v. Fourteenth Street Store, 124 App. 
 Div. 390, 108 N. Y. Supp. 830, holding plaintiff could not maintain an action on a 
 contract which was obtained by secretly bribing defendant's agents; Ruemmeli 
 v. Cravens, 13 Okla. 355, 74 Pac. 908, holding plaintiff who had entered into a 
 contract with defendant for the sale of liquor at wholesale in a certain territory 
 without procurring the proper license could not maintain an action on such con- 
 tract to recover money received by defendant for his benefit. 
 
 Cited in notes (6 L. R. A. 615, 8 L. R. A. 501) on invalidity of contracts against 
 public policy; (16 Am. St. Rep. 699) on enforcement of illegal contracts; (99 
 Am. St. Rep. 327; 23 L.R.A. (X.S.) 485) on accounting between members of il- 
 legal or void partnership, or one engaged in illegal business. 
 
 Distinguished in Irwin v. Curie, 171 X. Y. 415, 58 L. R. A. 832, 64 X. E. 161, 
 Reversing 56 App. Div. 516, 67 X. Y. Supp. 380, holding action maintainable 
 against attorney on agreement to divide fees on business brought in; Scott v. 
 Wiswall, 42 L. R. A. 86, 30 C. C. A. 341, 57 U. S. App. 179, 86 Fed. 673, holding 
 tug owner's membership of unlawful combination does not prevent recovery of 
 reasonable towage charges. 
 
 Limited in Pullman's Palace Car Co. v. Central Transp. Co. 171 U. S. 151, 
 43 L. ed. 114, 18 Sup. Ct. Rep. 808, holding party disaffirming illegal contract may 
 recover property delivered thereunder. 
 Illegal intent of complainant as defense to prosecution. 
 
 Distinguished in People v. McHale, 39 N. Y. S. R. 761, 15 N. Y. Supp. 496, 
 holding desire of prosecutrix to conceal ownership of money from poor authori- 
 ties no defense to prosecution for larceny. 
 
 4 L. R, A. 732, FEXKHAUSEX v. FELLOWS, 20 Xev. 312, 21 Pac. 88ft. 
 Stoppage in trausitn. 
 
 Cited in footnotes to Johnson v. Eveleth, 48 L. R. A. 50, which holds logs sul- 
 ject to stoppage in Iransitu while being driven down river by log-driving com- 
 pany: Jeffris v. Fitchburg R. Co. 33 L. R. A. 351, which holds stoppage in transitu 
 not defeated by delivery of part of consignment; Brewer Lumber Co. v. Boston & A. 
 R. Co. 54 L. R. A. 435, which holds right of stoppage in transitu not lost by car- 
 rier's storage for failure to unload in time while freight charges unpaid. 
 
 Cited in note (11 L, R, A. 347) on right of stoppage in transitu. 
 
4 L.R.A. 732] L. E. A. CASES AS AUTHORITIES. 760 
 
 Vendor's lien. 
 
 Cited in footnote to Conrad v. Fisher, 8 L. R. A. 147, which holds lien for goods 
 sold, lost by not asserting in time. 
 
 4 L. R. A. 734, ALLEN v. JOHNSON, 76 Mich. 31, 42 N. W. 1075. 
 Contributory negligence. 
 
 Cited in Hadley v. Lake Erie & W. R. Co. 21 Ind. App. 686, 53 N. E. 337, holding 
 one injured by overturning of wagon placed against car knowing it would soon be 
 moved cannot recover. 
 
 Cited in note (9 L. R. A. 643) on contributory negligence defeating recovery. 
 Landlord's liability for defect in premises. 
 
 Cited in note (23 L. R. A. 158) on liability of landlord as to condition of part 
 of premises not controlled by tenant. 
 
 4 L. R. A. 735, THEOBOLD v. LOUISVILLE, N. 0. & T. R. Co. 66 Miss. 279, 14 
 
 Am. St. Rep. 564, 6 So. 230. 
 Streets, what use entitles abutting- owner to compensation. 
 
 Cited in Kane v. New York Elev. R. Co. 125 N. Y. 180, 11 L. R. A. 644, 26 N. E. 
 278, holding elevated railroad in street interfering with light, air, and access en- 
 titles abutting owner to compensation; White v. Northwestern N. C. R. Co. 113 
 X. C. 616, 22 L. R. A. 629, 37 Am. St. Rep. 639, 18 S. E. 330, and Alabama & V. R. 
 Co. v. Bloom, 71 Miss. 252, 15 So. 72, holding railroad constructing track in street 
 must compensate abutting owners, whether fee in public or not; Dooly Block v. 
 Salt Lake Rapid Transit Co. 9 Utah, 42, 24 L. R.. A. 613, 33 Pac. 229. holding 
 abutting owners have easement in street irrespective of ownership of fee; Stowers 
 v. Postal Teleg. Cable Co. 68 Miss. 563, 12 L. R. A. 864, 24 Am. St. Rep. 290, 9 So. 
 356, holding abutting owner entitled to compensation for erection of telegraph 
 line, though public owns fee of street; Donovan v. Allert, 11 N. D. 299, 58 L.R.A. 
 781, 95 Am. St. Rep. 720, 91 N. W. 441, holding abutting owner entitled to 
 compensation for use of street for telephone poles; Gulf Coast Ice & Mfg. Co. 
 v. Bowers, 80 Miss. 582, 32 So. 133, holding abutting owner not entitled to 
 compensation for poles and wires for street lighting; Miller v. Detroit, Y. & 
 A. A. R. Co. 125 Mich. 175, 51 L.R.A. 958, 84 Am. St. Rep. 569, 84 N. W. 
 49 (dissenting opinion), majority holding street railway may, upon notice and 
 opportunity to abutting owner to remove, remove trees from highway without 
 compensation ; Seaboard Air Line R. Co. v. Southern Invest. Co. 53 Fla. 
 843, 44 So. 351, 13 A. & E. Ann. Cas. 18, holding abutting owner entitled to 
 compensation where steam railroad is constructed in the street; Ridgway v. Os- 
 ceola, 139 Iowa, 595, 117 N. W. 974, holding abutting owner entitled to com- 
 pensation for injury sustained by the vacation of a street and alley; Y T azoo & 
 M. Valley R. Co. v. Lefoldt, 87 Miss. 320, 39 So. 459, holding street railway liable 
 to abutting owner for damages caused by its raising the grade of the street; 
 Slaughter v. Meridian Light & R. Co. 95 Miss. 273, 25 L.R.A.(N.S.) 1272, 48 So. 
 6, holding that street railway in street is such additional burden as entitles 
 abutting owner to compensation; Duyckinck v. New York Elev. R. Co. 3 Silv. Ct. 
 App. 323, 26 N. E. 278, holding abutting owner entitled to compensation for 
 injuries to his property from the construction of an elevated railway in the 
 street; Foster Lumber Co. v. Arkansas Valley & W. R. Co. 20 Okla. 600, 30 
 L.R.A. (N.S.) 240, 100 Pac. 110, holding adjoining owner entitled to compensa- 
 tion where access to his property has been interferred with by the building of a 
 railway in the street; South Bound R. Co. v. Burton, 67 S. C. 523, 46 S. E. 340, 
 holding abutting owner entitled to compensation where steam railway is con- 
 structed in the street, though such owner has no fee in the street v Hazlehurst v. 
 
761 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 738 
 
 Mayes, 84 Miss. 11, 64 L.R.A. 806, 36 So. 33, holding abutting owner entitled to 
 compensation for additional servitude in street whether or not he owns the fee 
 in the street; Bronson v. Albion Teleph. Co. 67 Xeb. 115, 60 L.R.A. 428, 93 N. W. 
 201, 2 A. & E. Ann. Cas. 639, holding ownership of fee to be immaterial on ques- 
 tion of compensation to abutting owner; Southern Bell Teleph. & Teleg. Co. v. 
 Mobile, 162 Fed. 530, holding that right granted to telephone company to con- 
 struct telephone line in the street, does not relieve him from duty to give com- 
 pensation to adjoining owners; Louisville & N. R. Co. v. Mobile, J. & K. C. R. Co. 
 124 Ala. 166, 26 So. 895, holding that the unauthorized construction of a railroad 
 in a street is a nuisance which may be enjoined. 
 
 Cited in notes (7 L. R. A. 548) on ownership of fee in streets; (17 L. R. A. 476) 
 on what use of street or highway constitutes additional burden; (14 L. R. A. 383) 
 on injury to abutter's easements by railroad in street; (61 L.R.A. 677) on use 
 of streets for drainage; (25 Am. St. Rep. 479; 27 Am. St. Rep. 402; 31 Am. St. 
 Rep. 733; 35 Am. St. Rep. 536; 34 L. ed. U. S. 355; 36 L.R.A.(X.S.) 733, 764) 
 on abutter's right to compensation for railroads in streets. 
 
 Disapproved in Garrett v. Lake Roland Elev. R. Co. 79 Md. 281, 24 L. R. A. 397, 
 29 Atl. 830, holding erection in street of elevated railway abutment not taking of 
 abutting owner's property. 
 What constitutes taking: for public use. 
 
 Cited in Richardson v. Mississippi Levee Comrs. 77 Miss. 536, 26 So. 963, rais- 
 ing, without deciding question whether obstruction of drainage by public levee 
 entitles owner to compensation. 
 
 Cited in notes (15 L.R.A. (X.S.) 53) on cutting off access to highway as a 
 taking; (16 Am. St. Rep. 613) on what is taking of property for public use. 
 Condemnation Measure of damages. 
 
 Cited in note (8 L. R. A. 330) on measure of damages for land condemned for 
 railroad purposes. 
 
 4 L. R. A. 738, MIDDLEDITCH v. WILLIAMS, 45 N. J. Eq. 726, 17 Atl. 826. 
 
 Second appeal, 47 X'. J. Eq. 585, 21 Atl. 290. 
 Mental capacity; insane delusions. 
 
 Cited in Re Kendrick, 130 Cal. 365, 62 Pac. 605, holding temporary hallucina- 
 tions or unfounded dislikes not insane delusions; Re Scott, 128 Cal. 62, 60 Pac- 
 527. holding irrational inference or unreasonable prejudice not insane delusion; 
 McClary v. Stull, 44 Xeb. 189, 62 N. W. 501, holding belief in spiritualism does- 
 not show want of testamentary capacity; Potter v. Jones, 20 Or. 248, 12 L. R. A. 
 165, 25 Pac. 769, holding erroneous belief in wife's infidelity does not incapacitate 
 testator; Re Henry, 18 Misc. 154, 41 X. Y. Supp. 1096, holding delusion not influ- 
 encing provisions of will does not incapacitate testator; Smith v. Smith. 48 X. J. 
 Eq. 570, 25 Atl. 11, holding erroneous conclusion as to ability to procreate children 
 not insane delusion; Kern v. Kern, 51 X. J. Eq. 578, 26 Atl. 837, holding mental 
 weakness with delusions not influencing action, no ground for annulling mar- 
 riage; Re Kauffele, 32 Pittsb. L. J. X. S. 347, holding belief in wife's infidelity 
 founded upon reports, not an insane delusion; Wait v. Westfall, 161 Ind. 665, 68 
 X. E. 271, holding mere delusion as to ability to locate hidden treasure, insuffi- 
 cient to invalidate will; Riddle v. Gibson, 29 App. D. C. 249, holding resentment 
 against relatives for neglect not evidence of insane delusion; Owen v. Crum- 
 baugh, 228 111. 401, 119 Am. St. Rep. 442, 81 X. E. 1044, 10 A. & E. Ann. Cas. 606, 
 holding that belief in spiritualism is not an insane delusion; Friedersdorf v. 
 Lacy, 173 Ind. 433. 90 X. E. 766, holding that fear of being poisoned by certain 
 persons is not insane delusion; Henderson v. Jackson, 138 Iowa, 331, 26 L.R.A. 
 (X.S.) 481, 111 X. W. 821, holding belief or hallucination that premise to husband, 
 
i L.R.A. 738] L. R. A. CASES AS AUTHORITIES. 762 
 
 deceased some years before was binding upon her insufficient to show testamen- 
 tary incapacity or undue influence; Gesell v. Baugher, 100 Md. 686, 60 Atl. 4S1, 
 holding that insane delusions as to particular persons or things does not invali- 
 date a will where not affected thereby; Taylor v. McClintock, 87 Ark. 278, 112 
 S. \V. 40,">. as denning insane delusions. 
 
 Cited in notes (37 L. R. A. 262) on what are insane delusions; (12 L. R. A. 161, 
 162) on testamentary capacity as affected by insane delusion; (16 L. R. A. 678) 
 on belief in spiritualism, witchcraft, etc., as affecting capacity to make will or 
 deed; (15 L.R.A.(X.S.) 674) on belief in spiritualism as affecting testamentary 
 -capacity; (63 Am. St. Rep. 83, 87, 93) on insane delusions. 
 
 Distinguished in Bohler v. Hicks, 120 Ga. 804, 48 S. E. 306; Snell v. Weldon, 
 243 111. 519, 90 X. E. 1061, holding that belief based on facts though erroneous 
 and illogical is not an insane delusion. 
 When question for jury. 
 
 Cited in Steimkuehler v. Wempner, 169 Ind. 165, 15 L.R.A.(N.S.) 679, 81 N. E. 
 482, holding that where will was affected by "spiritualistic revelations" question 
 of testamentary capacity was for jury; Johnson v. Johnson, 105 Md. 88, 121 
 Am. St. Rep. 570, 65 Atl. 918, holding testamentary capacity to be question for 
 jury where insane delusion as to wife's chastity appeared from the evidence. 
 Testator's purpose not defeated by injustice of will. 
 
 Cited in Smith v. Smith, 48 N. J. Eq. 591, 25 Atl. 11, holding courts will up- 
 hold will though unjust, of competent testator; Morgan v. Morgan, 30 App. D. C. 
 448, 13 A. & E. Ann. Cas. 1037, holding that fact of unnatural and unjust dispo- 
 sition made by will can not be submitted to jury in question of testamentary 
 incapacity in the absence of other evidence thereof. 
 Evidence Testator's declarations. 
 
 Cited in Re Gordon, 50 X. J. Eq. 425, 26 Atl. 268, holding testator's declara- 
 tions not admissible upon issue of forgery of disputed will; Gwin v. Gwin, 5 
 Idaho, 286, 48 Pac. 295, holding declarations of testator after execution of will 
 inadmissible on question of duress or undue influence; Re Davis, 73 X. J. Eq. 620. 
 8 Atl. 756; Hobson v. Moorman, 115 Tenn. 94. 3 L.R.A.(X.S-) 758, 90 S. W. 152. 
 5 A. & E. Ann. Cas. 601, holding testator's declarations admissible to show state 
 of mind but not to prove fact of undue influence. 
 
 Cited in note (107 Am. St. Rep. 463) on admissibility of testator's declarations 
 to sustain, defeat or aid in construction of alleged will. 
 "Wills Undue influence. 
 
 Cited in footnotes to Re Shell, 53 L.R.A. 387, which holds undue influence in 
 procuring will not inferable from motive and opportunity alone; Kennedy v. 
 Dickey, 68 L.R.A. 317, which holds will not annulled for undue influence by hon- 
 est and moderate intercession or persuasion unaccompanied with fraud, deceit. 
 threats, or putting in fear. 
 Spiritualistic manifestations as imposture. 
 
 Cited in footnote to People v. Gilman, 46 L. R. A. 218, which holds conspiracy 
 to cheat by materializing seances and professed medium punishable, though obvi- 
 ous humbug. 
 
 4 L. R. A. 742, JUDSOX v. BESSEMER. 87 Ala. 240, 6 So. 267. 
 Constitutional requirement that act contain one subject, expressed in 
 title. 
 
 Cited in State ex rel. Porter v. Crook, 126 Ala. 615, 28 So. 745, and Hawking 
 v. Roberts, 122 Ala. 143, 27 So. 327, holding law containing one subject valid 
 though two expressed in title; Alabama G. S. R. Co. v. Reed, 124 Ala. 257, 82 Am. 
 
763 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 74,3 
 
 : St. Rep. 166, 27 So. 19, holding provisions of act germane to general subject in 
 title, valid; Blakey v. Montgomery, ]44 Ala. 485, 39 So. 745, holding act entitled 
 "to authorize issue of bonds valid though body of act provides for issue pursuant 
 to authority granted by election; Chattanooga Sav. Bank v. Tanner, 157 Ala. 504. 
 47 So. 790, holding that surplusage in title does not invalidate act. 
 Constitutional prohibition of revival, extension, or amendment of stat- 
 nte by reference to title. 
 
 Cited in Maxwell v. State, 89 Ala. 158, 7 So. 824, holding act repealed cannot 
 be revived without re-enactment at length ; Miller v. Berry, 101 Ala. 534, 14 So. 
 4555, holding act extending operation of former act by reference to title unconsti- 
 tutional; Leep v. St. Louis, I. M. & S. R. Co. 58 Ark. 444, 23 L. R. A. 277, 41 
 Am. St. Rep. 109, 25 S. \V. 75 (dissenting opinion), majority holding constitu- 
 tional reservation of right to alter corporate charters authorizes amendment of 
 corporation law without reference thereto. 
 Municipal power to issue gold-coin bonds. 
 
 Cited in Farson v. Sinking Fund Comrs. 97 Ky. 126, 30 S. W. 17, and Woodruff 
 -v. Mississippi, 162 U. S. 301, 40 L. ed. 975, 16 Sup. Ct. Rep. 820, holding, in ab- 
 sence of legislative restriction, municipal gold-coin bonds valid; Skinner v. Santa 
 Rosa, 107 Cal. 473, 29 L. R. A. 520, 40 Pac. 742, holding provision making bonds 
 "payable in gold coin or lawful money" does not authorize bonds payable in gold; 
 Murphy v. San Luis Obispo, 119 Cal. 627, 39 L. R. A. 446, 51 Pac. 1085, holding 
 statute authorizing bonds "payable in gold or lawful money" authorizes bonds 
 payable in gold; Carlson v. Helena, 39 Mont. 113, 102 Pac. 39, 17 A. & E. Ann. 
 <Cas. 1233, holding that city council may issue bonds payable in "gold coin" under 
 general statute permitting issue of bonds; Hillsborough County v. Henderson, 45 
 Fla. 361, 33 So. 997, holding same as to county. 
 
 Cited in note (51 Am, St. Rep. 852) on municipal bonds in hands of bona fide 
 holders. 
 
 Distinguished in Burnett v. Maloney, 97 Tenn. 709, 34 L. R. A. 544, 37 S. W. 
 689, holding statute authorizing bond issue does not authorize bonds "payable in 
 United States gold coin of present weight and fineness." 
 Effect of unconstitutional repealing act. 
 
 Cited in Equitable Guarantee & T. Co. v. Donahoe, 3 Penn. (Del.) 199, 49 
 Atl. 372, holding section in original law specifically repealed not left standing 
 because of unconstitutional substitute. 
 
 4 L. R. A. 744, WEEKS v. HARRIMAN, 65 N. H. 91, 23 Am. St. Rep. 21, 18 Atl. 
 
 87. 
 Conclusiveness of foreign judgment. 
 
 Approved in American Mut. L. Ins. Co. v. Mason, 159 Ind. 17, 64 N. E. 525, 
 holding judgment of court of other state having jurisdiction, conclusive on merits, 
 and not open to collateral attack. 
 
 Cited in note (103 Am. St. Rep. 321) on judgments of courts of other states. 
 
 4 L. R. A. 745, PATTERSON v. MINNESOTA MFG. CO. 41 Minn. 84, 16 Am. St. 
 
 Rep. 671, 42 N. W. 926. 
 Rights' and liabilities of corporate officer or stockholder. 
 
 Cited in McKusick v. Seymour, S. & Co. 48 Minn. 169, 50 N. W. 1114, holding 
 individual liability of stockholder for corporate debts enforceable in sequestration 
 proceeding by creditor; John A. Roeblings Sons Co. v. Mode, 1 Penn. (Del.i ">:21. 
 43 Atl. 4SO, holding action by creditor to hold corporation officer individually 
 liable for claim, not maintainable. 
 
 Cited in notes (8 L. R. A. 2.53) on personal liability of directors for acts done 
 
4 L.R.A. 745] L. R. A. CASES AS AUTHORITIES. 76* 
 
 without authority: (9 L. R. A. 652) on liability of corporate directors; (9 L. R. 
 A. 053) on corporations primarily interested and must bring suit; (22 Am. St. 
 Rep. 530; 74 Am. St. Rep. 611) on liability of corporate directors for torts. 
 Penal nature of personal-liability statute. 
 
 Cited in Merchants' Xat. Bank v. Northwestern Mfg. & Car Co. 48 Minn. 356, 
 51 N. W. 117, holding action to enforce individual liability of corporation direct- 
 ors barred in three years. 
 Effect of appointment of receiver on individual creditor's i-iuhts. 
 
 Cited in Gushing v. Perot, 175 Pa. 76, 34 L. R. A. 740, 52 Am. St. Rep. 835,. 
 34 Atl. 447, holding receiver proper party to assert common right of creditors for 
 common benefit; Bailey v. O'Neal, 92 Ark. 330, 122 S. W. 503, holding receivers 
 of bank not necessary parties to action by creditors against directors. 
 
 Distinguished in Minnesota Thresher Mfg. Co. v. Langdon, 44 Minn. 40, 40 X. 
 W. 310, holding receiver proper party to bring action to recover corporation 
 capital wrongfully withdrawn. 
 Rig-fat of creditor to sue individually. 
 
 Cited in National New Haven Bank v. Northwestern Guaranty Loan Co. 61 
 Minn. 393, 63 N. W. 1079, holding individual creditor specially damaged may 
 maintain action against unfaithful corporation official to enforce personal 
 liability; Swartley v. Oak Leaf Creamery Co. 135 Iowa, 578, 113 N. W. 496, 
 holding that the creditors may maintain an action against the directors of the 
 corporation to enforce the personal liability for malfeasance in office, without 
 first exhausting the property of the corporation. 
 Necessity of obtaining: judgment against corporation. 
 
 Cited in M. I. Wilcox Cordage & Supply Co. v. Mosher, 114 Mich. 66, 72 N. W. 
 117, holding creditor need not obtain judgment on claim against corporation be- 
 fore enforcing individual liability of directors for default. 
 Negligence of corporation director. 
 
 Cited in Utley v. Hill, 155 Mo. 269, 49 L. R. A. 334, 78 Am. St. Rep. 569, 55 S, 
 W. 1091, holding directors not liable to depositor under statute for mere neglect 
 to investigate affairs of bank; Lewis v. Montgomery, 48 111. App. 287, holding 
 that while the duty of a director is to know what the corporation is doing, and: 
 it is negligence for him not to know, such negligence is not such an assent within 
 the meaning of the statute as to make him personally liable. 
 Release of one of several wrongdoers from liability. 
 
 Cited in Burns v. Womble, 131 N. C. 177, 42 S. E. 573, holding release of sher- 
 iff from liability for trespass releases plaintiff in writ executed by him. 
 
 4 L. R. A. 751, PEOPLE v. HANRAHAN, 75 Mich. 611, 42 N. \\. 1124. 
 Title of laws. 
 
 Cited in People v. Wagner, 86 Mich. 597, 13 L. R. A. 288, 24 Am. St. Rep. 141, 
 49 N. W. 609, and Chicago Union Traction Co. v. Chicago, 207 111. 547. 09 N. K. 
 849, holding constitutional provisions relating to title of laws not applicable to 
 city ordinances. 
 Legislature's power to pass local laws. 
 
 Cited in Davock v. Moore, 105 Mich. 132, 63 N. W. 424. holding consent of 
 locality to taxation under "act to establish board of health for city of Detroit" 
 not necessary. 
 Legislative powers. 
 
 Cited in Feek v. Bloomingdale Twp. 82 Mich. 412, 10 L. R. A. 75, 47 N. W. 37. 
 holding Constitution does not prohibit legislature from enacting or suspending 
 laws in particular localities. 
 
765 L. R. A. CASES AS AUTHORITIES. [4 L.H.A. 751 
 
 Cited in footnote to Sutton v. State, 33 L. R. A. 589, which holds classification 
 of owunties according to previous census without respect to actual population 
 void. 
 State and local regulations covering the name subject. 
 
 Cited in St. Ignace v. Snyder, 75 Mich. 652, 42 X. \\ . 1130, upholding city's 
 power to punish as misdemeanors, statutory felonies committed within its limits ; 
 People v. Detroit White Lead Works, 82 Mich. 479, 9 L. R. A. 726, 46 N. W. 735, 
 upholding city-nuisance ordinance, although state law existed relating to same 
 subject; Hood v. Von Glahn, 88 Ga. 408, 14 S. E. 564, and Yankton v. Douglass, 
 8 S. D. 447, 66 X. W. 923, upholding local ordinance against "tippling," in ad- 
 dition to state law on same subject; State ex rel. Milwaukee v. Xewman, 9ti Wis. 
 269, 71 X. W. 438, upholding action for penalty by city under ordinance against 
 gaming covered by state law; State ex rel. Cooper v. Brazee, 139 Wis. 544, 121 
 X. W. 247, holding that "every person convicted may appeal" includes person 
 found guilty of violating an ordinance though such prosecutions are civil ac- 
 tions; Alma v. Clow, 146 Mich. 449, 109 X. W. 853, holding municipal ordinance 
 regulating peddling valid though general law also covered the subject. 
 
 Cited in footnotes to L'Hote v. Xew Orleans, 44 L. R. A. 90, which sustains 
 ordinance assigning limits beyond which houses of prostitution are prohibited; 
 .State v. Chauvet, 51 L. R. A. 630, which holds covered wagon moving from place 
 to place a house within prohibition against houses of ill fame; Ogden v. Madison, 
 55 L. R. A. 506, which sustains city's power to impose penalty for keeping house 
 of ill fame though misdemeanor under state statute. 
 
 Cited in notes (39 L.R.A. 522) on municipal power as to nuisance affecting 
 public morals, decency, peace, and good order; (1 L.R.A.(X.S.) 384) on power of 
 municipality to legislate on subjects covered by state laws; (110 Am. St. Rep. 
 153: 17 L.R.A. (X.S.) 57, 70; 31 L.R.A. (X.S.) 703) on power of municipality to 
 punish act also an offense under state law. 
 Repeal of special laws by general acts or amendments thereof. 
 
 Cited in People ex rel. Terry v. Keller, 35 App. Div. 500, 54 X. Y. Supp. 1011, 
 holding local civil-service act not repealed by amendment of prior general law on 
 same subject; People v. Thompson, 161 Mich. 395, 126 X. W. 466, holding that 
 where the provisions of two acts may stand as consistent the former is not re- 
 pealed by implication though both may apply to the same subject; Rorabacher v. 
 Xichols, 165 Mich. 129, 130 X. W. 189, holding that act as to condemnation by 
 cities of fourth class does not repeal prior act applicable to all cities. 
 
 Distinguished in People v. Furman, 85 Mich. Ill, 48 X. W. 169, holding general 
 liquor law of 1887 repealed all inconsistent municipal ordinances and charter 
 provisions; People v. Mallette, 79 Mich. 601, 44 X. W. 962, holding general crim- 
 inal law not superseded by prior city charters. 
 Right of trial by jury. 
 
 Cited in Detroit Xat. Bank v. Blodgett, 115 Mich. 171, 73 X. W r . 885, holding 
 legislature cannot abridge right of court of chancery to pass upon question of 
 fact. 
 Cruel and unusual punishments. 
 
 Cited in Loeb v. Jennings, 133 Ga. 803, 67 S. E. 101, holding that legislature 
 has power to authorize municipalities to sentence offenders against ordinances, to 
 labor. 
 
 Cited in note (35 L. R. A. 567) on cruel and unusual punishments. 
 
4 L.R.A. 757] L. R. A. CASES AS AUTHORITIES. 766: 
 
 4 L. R. A. 757, PEOPLE v. GIBLIN, 115 N. Y. 196, 21 N. E. 1062. 
 Proof under indictment with general count. 
 
 Cited in People v. Meyer, 162 N. Y. 370, 56 N. E. 758, and People v. Osmond, 
 138 N. Y. 84, 33 N. E. 739, holding under common-law indictment for murder 
 facts amounting to murder under statute provable; People v. Constantino, 153 
 N. Y. 39, 47 N. E. 37, sustaining conviction under indictment with common-law 
 count for murder in first degree; People v. Peck, 67 Hun, 572, 22 N. Y. Supp. 576, 
 holding circumstances of statutory crime, other than those set forth in statute, 
 need not be pleaded; Ex parte Dela, 25 Nev. 354, 83 Am. St. Rep. 603, 60 Pac. 217, 
 holding under statute proof of murder in perpetration of felony stands in lieu of 
 proof of malice aforethought; Rayburn v. State, 69 Ark. 179, 63 S. W. 350, hold- 
 ing specific allegation unnecessary to permit proof of murder in attempt to rob ; 
 People v. Flanigan, 174 N. Y. 373, 66 N. E. 988, and People v. Sullivan, 173 X. Y. 
 141, 63 L. R. A. 382, 93 Am. St. Rep. 582, 65 N. E. 989, holding that under indict- 
 ment for murder in the first degree facts bringing crime within any of the provi- 
 sions of the statute relating thereto are provable; Chelsey v. State, 121 Ga. 342, 
 49 S. E. 258, holding indictment for murder sufficient where it charged that 
 the act was done "unlawfully, feloniously and with malice aforethought;" People 
 v. Schermerhorn, 203 N. Y. 72, 96 N". E. 376, sustaining conviction of murder in, 
 first degree under common-law indictment, on proof of homicide in commission 
 of felony; People v. Darragh, 141 App. Div. 412, 126 N. Y. Supp. 522, sustaining 
 conviction of manslaughter in first degree of chauffeur running over boy, under 
 common-law indictment for murder in first degree. 
 
 Cited in note (63 L. R. A. 394) on homicide in the commission of an unlawful: 
 act. 
 
 Cross-examination of defendant. 
 
 Cited in Territory v. O'Hare, 1 N. D. 45, 44 N. W. 1003, holding not error to. 
 permit cross-examination of defendant as to antecedents; People v. Barry, 132 
 App. Div. 240, 116 N. Y. Supp. 870, holding that where defendant in criminal 
 prosecution testifies in his own behalf he may be cross-examined as to any vicious, 
 or criminal acts committed during period covered by his testimony in chief;. 
 People v. Fiori, 123 App. Div. 183, 108 N. Y. Supp. 416, holding that witness may 
 be cross examined as to his associating with persona of bad character, on ques- 
 tion of credibility; People ex rel. Walters v. Lewis, 111 App. Div. 377, 97 N. Y.. 
 Supp. 1057, holding that upon review of dismissal of police officer, he may be- 
 cross-examined as to his past record; Ritchey v. Pakas, 136 App. Div. 884, 121 
 N. Y. Supp. 834, on purpose and scope of cross-examination. 
 
 4 L. R. A. 759, ESSEX SAV. BANK v. MERIDEN F. INS. CO. 57 Conn. 335, 17, 
 
 Atl. 930, 18,Atl. 324. 
 Transfer of title avoiding 1 policy. 
 
 Cited in Brown v. Cotton & Woolen Mfrs. Mut. Ins. Co. 156 Mass. 588, 31 N. E, 
 691, holding it immaterial whether the consideration be of substantial value; 
 Pope v. Glenn Falls Ins. Co. 136 Ala. 676, 34 So. 29, holding mortgagor, after 
 foreclosure and expiration of time for redemption, without insurable interest. 
 Indivisibility of insurance contract. 
 
 Cited in Southern F. Ins. Co. v. Knight, 111 Ga. 634, 52 L. R. A. 74, 78 Am. St. 
 Rep. 216, 36 S. E. 821, holding insurance contract entire and indivisible where 
 premium is payable in gross; Benham v. Farmers' Mut. F. Ins. Co. 165 Mich. 418. 
 - L.R.A.(N.S-) , 131 N. W. 87, Ann. Gas. 1912 C, 983, holding that policy on 
 buildings, stock and other property, stating separately amount of insurance on< 
 each item, is divisible. 
 
767 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 76<V 
 
 Cited in footnotes to State Ins. Co. v. Schreck, 6 L. R. A. 524, which holda 
 policy separately valuing personalty and realty separable; Coleman v. New Or- 
 leans Ins. Co. 16 L. R. A. 174, which holds policy for separate amounts on store- 
 house and goods severable. 
 
 Cited in notes (9 L. R. A. 627) on title or interest of insured in fire policy; 
 (19 L.R.A. 211, 214) on severability of insurance in same policy; (29 Am. St. 
 Rep. 910) on entirety in insurance contract. 
 
 Disapproved in Coleman v. New Orleans Ins. Co. 49 Ohio St. 320, 16 L. R. A. 
 176, 34 Am. St. Rep. 565, 31 N. E. 279, holding contract for insurance on build- 
 ing and stock premium in gross, severable; Thurber v. Royal Ins. Co. 1 Marv. 
 (Del.) 257, 40 Atl. 1111, upholding policy as to personal property though held 
 void as to real estate, where amount on each is specifically fixed. 
 Insnrable Interest. 
 
 Cited in Pope v. Glenn Falls Ins. Co. 136 Ala. 676, 34 So. 29, holding that rights 
 under contract void under statute of frauds confers no insurable interest. 
 
 Cited in note (13 Eng. Rul. Cas. 278) on insurable interest of agent. 
 Presumption of insurer's knowledge. 
 
 Cited in note (27 Am. St. Rep. 710) on presumption of insurer's knowledge. 
 
 4 L. R. A. 764, GULF, C. & S. F. R. CO. v. BLOHN, 73 Tex. 637, 11 S. W. 867. 
 Submission of issue without evidence. 
 
 Cited in Texas & P. R. Co. v. Moore, 8 Tex. Civ. App. 296, 27 S. W. 962, holding 
 submitting material issue to jury without evidence reversible error. 
 Fellow servants. 
 
 Cited in Hobbs v. Atlantic & N. C. R. Co. 107 N. C. 3, 9 L. R. A. 839, 12 S. E, 
 124, holding brakeman or fireman and locomotive engineer, fellow servants. 
 
 Cited in notes (5 L. R. A. 735) on who are fellow servants; (12 L. R. A. 97) 
 on master's liability for negligence of coservant acting under authority; (5Q 
 L. R. A. 431) on what servants deemed in same common employment apart from 
 statutes, where no questions as to vice principalship arise; (20 Am. St. Rep. 368) 
 on who are fellow-servants; (23 Am. St. Rep. 166) on master's liability for neg- 
 ligence of fellow servants. 
 
 4 L. R. A. 766, COOPER v. STATE, 86 Ala. 610, 11 Am. St. Rep. 84, 6 So. 110. 
 Evideneej constitutional privilege of accused. 
 
 Cited in Davis v. State, 131 Ala. 16, 31 So. 569, holding defendant's refusal 
 to compare shoes with tracks not provable; Pate v. State, 150 Ala. 18, 43 So. 343 r 
 holding that defendant, in prosecution for murder, testifying in his own behalf 
 may be cross-questioned in reference to the shooting of the father of the person 
 whom he was being tried for killing. 
 
 Cited in notes (32 L.R.A.(X.S-) 774) on incriminating evidence furnished under 
 compulsion; (94 Am. St. Rep. 343) on compelling accused to perform acts and 
 submit person to inspection and examination. 
 
 Distinguished in Williams v. State, 98 Ala. 54, 13 So. 333, holding defendant 
 testifying as to age may be required to stand before jury; Potter v. State, 92 Ala. 
 40, 9 So. 402, holding proof of correspondence of defendant's feet with tracks,, 
 upon comparison voluntarily made, admissible. 
 Experiments as evidence. 
 
 Cited in note (53 Am. St. Rep. 378) on experiments as evidence. 
 
4 L.R.A. 767] L. R. A. CASES AS AUTHORITIES. 768 
 
 4 L. R. A. 767, FARMERS' HIGH LINE CANAL v. SOUTHWORTII, 13 Colo. 
 Ill, 21 Pac. 1028. 
 
 Followed, without special discussion, in Townsend v. Fulton Irrigating Ditch 
 Co. 17 Colo. 145, 29 Pac. 453. 
 Prior appropriation of water. 
 
 Cited in Taughenbaugh v. Clark, 6 Colo. App. 244, 40 Pac. 153; Combs v. Agri- 
 cultural Ditch Co. 17 Colo. 151, 31 Am. St. Rep. 275. 28 Pac. 96G-. Nevada Ditch 
 Co. v. Bennett, 30 Or. 90, 60 Am. St. Rep. 777, 45 Pac. 472; Colorado Land & 
 W. Co. v. Rocky Ford Canal, R. L. Loan & T. Co. 3 Colo. App. 552, 34 Pac. 580, 
 holding application within reasonable time to beneficial use, essential to appro- 
 priation; Becker v. Marble Creek Irrig. Co. 15 Utah, 228, 49 Pac. 892, and Ft. 
 Morgan Land & Canal Co. v. South Platte Ditch Co. 18 Colo. 3, 30 Am. St. Rep. 
 259, 30 Pac. 1032, Holding only actual use gives priority: Union Mill. & Min. 
 Co. v. Dangberg, 81 Fed. 95, holding excessive diversion gives no -priority; Walsh 
 v. Wallace, 26 Nev. 327, 99 Am. St. Rep. 692, 67 Pac. 914, holding survey of land 
 on river and cultivation of wild grass produced by overflow not an appropriation 
 of water; Snyder v. Colorado Gold Dredging Co. 104 C. C. A. 136, 181 Fed. 67, 
 holding that location of riparian gold placer claim is not appropriation of water; 
 Wellington v. Beck. 30 Colo. 411, 70 Pac. 687, on waters as being appropriated" 
 for irrigation purposes when actually applied to the land for such purpose; Walsh 
 v. Wallace, 26 Nev. 327, 99 Am. St. Rep. 692, 67 Pac. 914, holding that to consti- 
 tute valid appropriation there must be actual diversion with intent to apply 
 the w y ater to a beneficial use, followed by application to such use within a reason- 
 able time. 
 
 Cited in notes (30 L. R. A. 676) on right of prior appropriation of water; 
 {8 L.R.A. 578) on property in unnavigable lakes; (60 Am. St. Rep. 807) on what 
 constitutes an appropriation of water. 
 It in h <> of appropriators. 
 
 Cited in Nichols v. Mclntosh, 19 Colo. 24, 34 Pac. 278, holding persons may 
 take water through same head-gate without losing priorities; Greer v. Heiser, 
 16 Colo. 314, 26 Pac. 770, holding quantity of water appropriated when ditch 
 constructed correct basis for decree of priority; Larimer & W. Irrig. Co. v. 
 Wyatt, 23 Colo. 491, 48 Pac. 528, holding prorating act applies only to consum- 
 ers having contemporaneous priorities; Nichols v. Mclntosh, 19 Colo. 26, 34 
 Pac. 278, holding adjudication of priorities under irrigation acts will not, with- 
 out due process, aftect vested rights; Oppenlander v. Left Hand Ditch Co. 18 
 Colo. 149, 31 Pac. 834, holding Colorado Constitution abrogates common-law 
 riparian rights; Park v. Park, 45 Colo. 354. 101 Pac. 403. holding that there may 
 be different priorities in waters of the same ditch; Farmers' High Line Canal & 
 Reservoir Co. v. White, 32 Colo. 117, 75 Pac. 415. holding that appropriations of 
 waters of the same ditch may have different priorities and in case of scarcity 
 of waters, the ones having first priorities cannot be compelled to pro rate; Ala- 
 mosa Creek Canal Co. v. Nelson, 42 Colo. 147, 93 Pac. 1112, holding that priorities 
 established by decree may be lost by abandonment. 
 
 Cited in notes (46 L.R.A. 322, 323) on right to store appropriated water; 
 (20 Am. St. Rep. 225) on right of prior appropriator of water for irrigation; 
 (25 Am. St. Rep. 254) on rights of prior appropriator of water. 
 Prior appropriation, how pleaded. 
 
 Cited in Church v. Stillwell, 12 Colo. App. 49, 54 Pac. 395, and Downing v 
 Agricultural Ditch Co. 20 Colo. 551, 39 Pac. 336, holding facts establishing prior 
 water right must be pleaded; Wellington v. Beck, 30 Colo. 411, 70 Pac. 687, 
 holding answer of prior appropriation for irrigation sufficient, in action to rf.~ 
 strain diversion of waters of creek; Sterling v. Pawnee Ditch Extension Co. 42 
 
769 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 77G 
 
 Colo. 429, 15 L.R.A.(N.S.) 242, 94 Pac. 339, holding that substantive facts show- 
 ing prior appropriation must be pleaded; Soden v. Murphy, 42 Colo. 356, 94 
 Pac. 353, on object and purpose of pleadings. 
 
 Distinguished in Farmers Independent Ditch Co. v. Agricultural Ditch Co. 
 22 Colo. 522, 55 Am. St. Rep.. 149, 45 Pac. 444, Reversing 3 Colo. App. 261, 32 
 Pr.c. 722, holding allegation of date of construction of canal, amount of water 
 taken, and application for agricultural purposes, sufficient; Hackett v. Larimer 
 & W. Reservoir Co. 48 Colo. 183, 109 Pac. 965, on necessity of alleging facts show- 
 ing priority of appropriation. 
 Irrigation ditch companies. 
 
 Cited in Wyatt v. Larimer & W. Irrig. Co. 18 Colo. 308, 36 Am. St. Rep. 280, 
 33 Pac. 144, Reversing 1 Colo. App. 498, 29 Pac. 906, holding canal company 
 consumer's agent, not proprietor of water diverted; Nevada Ditch Co. v. Bennett, 
 30 Or. 97, 60 Am. St. Rep. 777, 45 Pac. 472, holding canal company agent to 
 effect diversion; Wyatt v. Larimer & W. Irrig. Co. 18 Colo. 313, 36 Am. St. Rep. 
 280, 33 Pac. 144, holding canal company's contracts to furnish water in excess 
 of ability, illegal; Combs v. Farmers' High Line Canal & Reservoir Co. 38 Colo. 
 432, 88 Pac. 396, on irrigation company as trustee for, and as representing the 
 consumers; Albuquerque Land & Irrig. Co. v. Gutierrez, 10 N. M. 251, 61 Pac. 357, 
 on canal company as an agency for the distribution of water to consumers. 
 
 Limited in Wyatt v. Larimer & W. Irrig. Co. 1 Colo. App. 489, 29 Pac. 906, 
 holding irrigation canal company not common carrier. 
 Validity of irrigation laws. 
 
 Cited in Roberson v. People, 40 Colo. 125, 90 Pac. 79, holding irrigation law 
 valid as a proper exercise of the police power of the state. 
 
 4 L. R. A. 776, GRUBE v. MISSOURI P. R. CO. 98 Mo. 330, 14 Am. St. Rep. 
 
 645, 11 S. W. 736. 
 Laws and ordinances regulating operation of railroad. 
 
 Cited in Jackson v. Kansas City, Ft. S. & M. R. Co. 157 Mo. 639, 80 Am. St. 
 Rep. 650, 58 S. W. 32, and Bluedorn v. Missouri P. R. Co. 108 Mo. 444, 18 S. W. 
 1103, holding laws and ordinances regulating speed of railroad trains purely po- 
 lice regulations; Jackson v. Kansas City, Ft. S. & M. R. Co. 157 Mo. 641, 80 
 Am. St. Rep. 650, 58 S. W. 32; Hutchinson v. Missouri P. R. Co. 161 Mo. 253, 
 64 Am. St. Rep. 710, 61 S. W. 635; Prewitt v. Missouri, K. & T. R. Co. 134 Mo. 
 626, 36 S. W. 667; Dahlstrom v. St. Louis, I. M. & S. R. Co. 108 Mo. 538, 18 S. 
 W. 919, holding running a train in violation of city ordinance negligence per 
 se; Jackson v. Kansas City, Ft. S. & M. R. Co. 157 Mo. 633, 80 Am. St. Rep. 
 650, 58 S. W. 32, holding ordinance regulating speed of trains in city, applied 
 to railroad yards; Baltimore & O. S. W. R. Co. v. Peterson, 156 Ind. 371, 59 X. 
 E. 1044, holding ordinance regulating handling of cars in railroad company's 
 yards, valid; Sluder v. St Louis Transit Co. 189 Mo. 131, 5 L.R.A.(X.S.) 
 201, 88 S. W. 648, holding that city has right under its police power to pass an 
 ordinance requiring motormen on street cars to keep vigilant watch for pedes- 
 trians on or near the track. 
 
 Cited in footnote to Chicago & A. R. Co. v. Carlinville, 60 L. R. A. 391, which 
 sustains ordinance limiting speed of interstate trains to 10 miles an hour within 
 <>ity limits. 
 
 Cited in notes (7 L. R. A. 318) on duty to slacken speed at highway cross- 
 ings; (11 L. R. A. 435) on rate of speed of railway train; (39 L. R. A. 615) 
 on municipal control over public nuisances on streets and highways created by 
 street railroads and other electrical companies; (5 L.R.A.(N.S.) ]!>!. 1!>7, 208) 
 on violation of police ordinance as to railroads aa ground for private action. 
 L.R.A. Au. Vol. I. 49. 
 
4 L.R.A. 776] L. R. A. CASES AS AUTHORITIES. 770 
 
 Proof of knowledge of servant's incompetence. 
 
 Cited in Baltimore & O. R. Co. v. Camp, 20 C. C. A. 628, 54 U. S. App. 110, 
 81 Fed. 808, holding evidence as to servant's reputation for competence admis- 
 sible on part of defense; Western Stone Co. v. Whalen, 151 111. 483, 42 Am. St. 
 Rep. 244, 38 N. E. 241, holding general reputation of servant's incompetence ad- 
 missible; Texas C. R. Co. v. Rowland, 3 Tex. Civ. App. 162, 22 S. W. 134, hold- 
 ing evidence as to amount of intoxicants consumed by servant daily, supple- 
 mented by testimony as to general reputation for sobriety and of defendant's 
 knowledge, competent; Wicklund v. Saylor Coal Co. 119 Iowa, 337, 93 N. W. 
 305, holding single accident not shown to have been negligent, and warnings by 
 superintendent, insufficient to charge master. 
 
 Cited in notes (41 L. R. A. 98) on general reputation of delinquent servant 
 as notice to master of servant's untitness; (48 L. R. A. 390) on probative value 
 of delinquent servant's reputation as tending to show master's culpability; (14 
 L.R.A.(N.S.) 760, 761, 764) on evidence of specific instances to prove knowledge 
 of incompetency of servant; (20 L.R.A.(X.S.) 324) on inference as to breach of 
 duty to employ or retain none but competent servants, from fact of incom- 
 petence. 
 
 Distinguished in Southern P. Co. v. Hetzer, 1 L.R.A.(X.S.) 292, 68 C. C. A. 26, 
 135 Fed. 277, holding evidence of specific acts of negligence unknown to master in- 
 admissible to prove incompetence of servant in action against master. 
 Direction of verdict. 
 
 Cited in Hopkins v. Nashville, C. & St. L. R. Co. 96 Tenn. 409, 32 L. R. A. 
 362, 34 S. W. 1029, holding court may discuss case on demurrer -to evidence. 
 
 4 L. R. A. 782, CORCORAN v. CORCORAN, 119 Ind. 138, 12 Am. St. Rep. 390, 
 
 21 N. E. 468. 
 Contracts ly husband and wife. 
 
 Cited in Yelton v. Kerns, 16 Ind. App. 94. 44 N. E. 687. holding wife not bound 
 by oral agreement to waive statutory allowance on consideration moving to third 
 party; Fitzpatrick v. Burchill, 7 Misc. 466, 28 N. Y. Supp. 389, upholding con- 
 veyance by husband to wife where former was not indebted; Dempster Mill 
 Mfg. Co. v. Bundy, 64 Kan. 449, 56 L. R. A. 740, footnote, p. 739, 67 Pac. 816, 
 holding agreement of husband and wife to work for each other, product of labor 
 to be wife's property, void; Robinson v. Foust, 31 Ind. App. 388, 99 Am. St. 
 Rep. 269, 68 N. E. 182. holding enforceable, agreement by which wife supported 
 husband out of her own means, on promise of grandfather to make provision for 
 her. 
 
 Cited in notes (6 L.R.A. 559) on contracts between husband and wife; (15 
 Am. St. Rep. 531) on same point; (21 Am. St. Rep. 84) on conveyance between 
 husband and wife; (15 L.R.A. (X.S.) 491) on validity of antenuptial contract 
 by husband or wife to support the other. 
 
 Distinguished in Comstock v. Coon, 135 Ind. 645, 35 N. E. 909, holding wife 
 entitled to reformation of deed from husband, for valuable consideration, because 
 of misdescription. 
 Allowance for acts beneficial to another. 
 
 Cited in Williamson v. Jones, 43 W. Va. 592, 38 L. R. A. 708, 64 Am. St. 
 Rep. 91, 27 S. E. 410, allowing person taking petroleum, under mistake of title, 
 all costs of production, including boring; McXeely v. South Penn Oil Co. 58 
 \\ . Va. 444, 52 S. E. 480, on allowance to person taking oils from land under 
 mistake as to title in action by rightful owner. 
 
771 L. R. A. CASES AS AUTHORITIES. [4 L.R A. 783 
 
 4 L. R. A. 783, LONG v. CROSSAN, 119 Ind. 3, 21 N. E. 450. 
 Estoppel of married vroman to deny validity of contracts because ot 
 coverture. 
 
 Cited in Shirk v. North, 138 Ind. 218, 37 N. E. 590, holding wife's unrestricted 
 indorsement of notes, as security for debt of husband, estops her from claiming 
 same as against innocent purchaser; Government Bldg. & Loan Inst. No. 2 v. 
 Denny, 154 Ind. 269, 55 N. E. 757, holding married woman estopped to deny 
 validity of mortgage made by her grantee for his own benefit, where mortgagee 
 has no notice that conveyance is without consideration, and it was made to evade 
 statute against contract of suretyship; Percifield v. Black, 132 Ind. 387, 31 N. E. 
 955, holding married woman not estopped from setting up invalidity of parol 
 agreement to sell real estate by reason of her incapacity. 
 
 Cited in footnotes to Wilder v. Wilder, 9 L. R. A. 97, which holds married 
 woman estopped to claim vendor's lien by representing that one loaning to ven- 
 dee should have first mortgage; Hunt v. Reilly, 59 L. R. A. 206, which holds 
 wife's failure to notify purchaser of rights after learning of forgery of her name 
 to husband's deed does not estop her to claim dower; Grice v. Wocxlworth, 69 
 L.R. A. 584, which holds married woman estopped to set up invalidity of contract 
 by her husband and herself to sell homestead for failure to comply with certain 
 conditions after purchaser has paid purchase price, taken possession, and made 
 valuable improvements. 
 
 Cited in notes (16 Am. St. Rep. 686; 57 Am. St. Rep. 173) on estoppel of 
 married women. 
 Invalidity of contract of suretyship by married woman. 
 
 Cited in Goff v. Hankins, 11 Ind. App. 458, 39 N. E. 294, holding statute pro- 
 hibiting contracts of suretyship by married woman is limitation upon her right 
 of contract respecting her separate property, and applicable to both personal and 
 real property; Cummings v. Martin, 128 Ind. 22, 27 N. E. 173, holding contract 
 for loan in form with wife as principal, but in fact one of suretyship for hus- 
 band, void as to wife; Wilson v. Logue, 131 Ind. 193, 31 Am. St. Rep. 426, 30 
 N. E. 1079, holding mortgage of lands held by husband and wife by entireties, 
 to secure debt of husband, is void, although note signed by wife; Bragg v. Lam- 
 port, 38 C. C. A. 469. 96 Fed. 632, holding married woman conveying property 
 to son to enable latter to mortgage it, estopped from denying validity of mort- 
 gage; Weil v. Waterliouse, 46 Ind. App. 691, 91 N. E. 746, holding that married 
 woman cannot guaranty rent to become due from husband. 
 
 Cited in footnote to National Granite Bank v. Tyndale, 51 L. R. A. 447, which 
 authorizes action at law against estate of married woman for loan made to her 
 on her credit though notes given by her void. 
 
 Cited in note (8 L. R. A. 407) on incapacity of married woman to contract 
 as surety. 
 
 Distinguished in Grzesk v. Hibberd, 149 Ind. 359, 48 N. E. 361; Government 
 Bldg. & Loan Inst, No. 2 v. Denny, 154 Ind. 267, 55 N. E. 757; Abicht v. Searls, 
 154 Ind. 597, 57 N. E. 246, holding where purpose of conveyance by husband 
 and wife, and reconveyance to husband, is to evade statute against wife's con- 
 tract of suretyship, mortgage by husband and wife for husband's debt, void. 
 Attempt to accomplish prohibited acts indirectly. 
 
 Cited in Citizens' Street R. Co. v. Shepherd, 29 Ind. App. 421, 62 N. E. 300, 
 as to duty of court to deal with a transaction according to the substance, with- 
 out regard to the form; Field v. Campbell, 164 Ind. 394, 108 Am. St. Rep. 301, 
 72 N. E. 260, on question of validity of married woman's contract being de- 
 termined by the substance of the contract regardless of its form. 
 
4 L.R.A. 783] L. R. A. CASES AS AUTHORITIES. 772 
 
 Distinguished in Webb v. John Hancock Mut. L. Ins. Co. 102 Ind. 639, 66 
 L.R.A. 647, 69 N. E. 1006, holding mortgagee chargeable with notice of evasion 
 of statute where abstract showed conveyance from wife to husband upon nominal 
 consideration immediately prior to the application for the loan. 
 
 4 L. R. A. 785, BARRE R. CO. v. MONTPELIER & W. RIVER R. CO. 61 Vt. 1, 
 
 15 Am. St. Rep. 877, 17 Atl. 923. 
 Rights acquired by railroad by location of right of way. 
 
 Cited in Union Terminal R. Co. v. Kansas City Belt R. Co. 9 Kan. App. 291, 
 60 Pac. 541, holding condemnation proceeding by railroad to acquire right of 
 way located and occupied by railroad, invalid; Kanawha, G. J. & E. R. Co. v. 
 Glen Jean, L. L. & D. W. R. Co. 45 W. Va. 128, 30 S. E. 86 (dissenting opinion), 
 majority holding survey and location of railroad followed by condemnation gives 
 priority of title over deed to rival railroad made after survey, but before pro- 
 ceedings for condemnation; Minneapolis & St. L. R. Co. v. Chicago, M. & St. P. R. 
 Co. 116 Iowa, 690, 88 N. W. 1082, holding condemnation proceedings not begun 
 by survey so as to give prior right; Southern Indiana R. Co. v. Indianapolis & 
 L. R. Co. 168 Ind. 370, 13 L.R.A. (N.S.) 202, 81 N. E. 65, holding legal loca- 
 tion of railway necessary before railroad company's lands are exempt from 
 appropriation by another railway; Ft. Wayne & S. W. Traction Co. v. Ft. Wayne 
 & W. R. Co. 170 Ind. 58, 16 L.R.A. (N.S.) 544, 83 N. E. 665, holding that the 
 filing of an instrument of appropriation by an interurban railroad company gives 
 it priority in lands affected; Nicomen Boom Co. v. North Shore Boom & Driv- 
 ing Co. 40 Wash. 326, 82 Pac. 412, holding that boom company has priority in 
 lands for boom purposes where adjoining lands already in use and extensions 
 being made as required by the business; Chesapeake & O. R. Co. v. Deepwater 
 R. Co. 57 W. Va. 657, 50 S. E. 890, holding that survey adopted by corporate 
 action is sufficient to give priority as against another corporation. 
 
 Cited in note (12 L. R. A. 220, 221) on what is sufficient location of railroad 
 to exclude appropriation by railroad. 
 
 Distinguished in Atlanta, K. & N. R. Co. v. Southern R. Co. 66 C. C. A. 601, 
 
 131 Fed. 666, holding that preliminary survey gives no priority in absence of 
 statute; Milwaukee Light, Heat & Traction Co. v. Milwaukee-Northern R. Co. 
 
 132 Wis. 340, 112 N. W. 663, holding priority acquired by the company first 
 making a completed location by survey, and by obtaining options on the lands 
 affected. 
 
 Authority to exercise right of eminent domain. 
 
 Annotation cited in Pennsylvania Teleph. Co. v. Hoover, 24 Pa. Super. Ct. 98, 
 holding that telephone company has not the right of eminent domain over pri- 
 vate lands. 
 
 Cited in footnotes to Board of Health v. Van Hoesen, 14 L. R. A. 114, which 
 liolds power of eminent domain not conferable on rural cemetery corporation: 
 Wisconsin Water Co. v. Winans, 20 L. R. A. 662, which denies water-supply 
 company's right to condemn land for pipe line. 
 
 Cited in notes (7 L. R. A. 152) on exercise of right of eminent domain a po- 
 litical, not judicial, question; (5 L. R. A. 663) on when exercise of right of 
 eminent domain enjoined; (12 L. R. A. 675) on right of eminent domain. 
 Condemnation of lauds already devoted to public use. 
 
 Cited in Southern P. R. Co. v. Southern California R. Co. Ill Cal. 228, 43 
 Pac. 602; Seattle & M. R. Co. v. State, 7 Wash. 164, 22 L. R. A. 225, 38 Am. 
 St. Rep. 866, 34 Pac. 551; Rutland-Canadian R. Co. v. Central Vermont R. Co. 
 72 Vt. 133, 47 Atl. 399, holding property already taken for public use cannot 
 l>e taken for another public use without legislative authority; Indianapolis & 
 
773 L. K. A. CASES AS AUTHOKillKS. [4 L.R.A. 793 
 
 V. R. Co. v. Indianapolis & M. Rapid Transit Co. 33 Ind. App. 344, 67 N. E. 
 1013, holding that interurban railway company has no power to condemn part 
 of right of way of railroad for its track to avoid a curve in its line; Memphis 
 State Line R. Co. v. Forest Hill Cemetery Co. 116 Term. 413, 94 S. W. 69, hold- 
 ing that railway can not condemn right of way through public cemetery, though 
 all the lands are not in use for cemetery purposes; State ex rel. Portland & 
 S. R. Co. v. Superior Ct. 45 Wash. 278, 88 Pac. 201, denying railroad company 
 right to condemn right of way over another company's terminal grounds and 
 tracks where reasonable route exists over other lands. 
 
 Cited in footnotes to Diamond Jo Line Steamers v. Davenport, 54 L. R. A. 
 859, which authorizes condemnation for public wharf of land used by carrier as 
 landing place; Paxton & H. Irrig. Canal & Land Co. v. Farmers' & M. Irrig. & 
 Land Co. 29 L. R. A. 853, which holds condemnation of land for irrigating ditches 
 to be "for" public purpose; Denver Power & Irrig. Co. v. Colorado & S. R. Co. 
 60 L. R. A. 383, which denies power of reservoir company to condemn land de- 
 voted to purpose of railroad unless public necessity requires; Re Board of Street 
 Opening, 16 L. R. A. 180, which authorizes taking of private cemetery for pub- 
 lic park; Re Brooklyn, 26 L. R. A. 270, which upholds act authorizing city to 
 acquire property of water company; Re Stewart. 33 L. R. A. 427, which upholds 
 statute giving right to condemn warehouse site on right of way of railway; 
 Cleveland, C. C. & St. L. R. Co. v. Ohio Postal Teleg. Co. 62 L.R.A. 951, which 
 holds determination that practical uses of railroad right of way will not be 
 interfered with by appropriation of part thereof by magnetic telegraph com- 
 pany prerequisite to such appropriation. 
 
 Cited in notes (5 L.R.A. (N.S.) 516) on right of railroad to condemn right 
 of way over or across tracks of another for spur to private establishments; (26 
 Am. St. Rep. 432) on right of one railway to cross another. 
 
 Distinguished in Butte, A. & P. R. Co. v. Montana Union R. Co. 16 Mont. 
 544, 31 L. R. A. 311, footnote, p. 298, 50 Am. St. Rep. 508, 41 Pac. 232, holding 
 unused portion of railroad right of way may be taken by condemnation by an- 
 other railroad for more necessary public use; Portneuf Irrigating Co. v. Budge, 
 16 Idaho, 131, 100 Pac. 1046, 18 Ann. Gas. 674, holding, under statute, lands 
 appropriated to public use may be taken for a more necessary public use. 
 What constitutes public purpose. 
 
 Cited in State ex rel. Railroad & W. Commission v. Willmar & S. F. R. Co. 
 88 Minn. 454, 93 N. W. 112, holding spur track to quarry, and devoted to traffic, 
 not a private track; Jones v. Newport News & M. Valley Co. 13 C. C. A. 99, 
 31 U. S. App. 92, 65 Fed. 740, upholding right of railroad company to discon- 
 tinue a switch to private warehouse; State ex rel. Burr v. Atlantic Coast Line 
 R. Co. 59 Fla. 629, 52 So. 4, holding that devotion of spur tracks, connected 
 with railway system, to purposes of traffic is public use. 
 
 Cited in notes (20 L. R. A. 438) on power to condemn right of way for railroad 
 siding to private establishments; (7 L. R. A. 767) on vested rights subordinate 
 to power of eminent domain; (14 L. R. A. 480) on public purposes for which 
 money may be raised by taxation; (11 L. R. A. 286) on constitutional protec- 
 tion of property rights. 
 
 4 L. R. A. 793, LINDVALL v. WOODS, 41 Minn. 212, 42 N. W. 1020. 
 Who are fellow servants. 
 
 Cited in Jacobsen v. Minneapolis, 115 Minn. 401, 132 X. W. 341, holding that 
 servant placing timbers across trench to support concrete mixer is fellow servant 
 of workman in trench. 
 
4 L.R.A. 793] L. R. A. CASES AS AUTHORITIES. 774 
 
 Cited in footnote to Baltimore & O. R. Co. v. Andrews, 17 L. R. A. 190, which 
 holds conductor and engineer fellow servants of brakenian on another train. 
 
 Cited in notes (5 L.R.A. 735; 20 Am. St. Rep. 368) on who are fellow-servants; 
 (75 Am. St. Rep. 588, 589, 596, 602, 620, 640) on who is a vice principal. 
 Foreman and employees under him. 
 
 Cited in Callan v. Bull, 113 Cal. 605, 45 Pac. 1017; Bell v. Lang, 83 Minn. 
 231, 80 X. W. 95; Ling v. St. Paul, M. & M. R. Co. 50 Minn. 164, 52 X. W. 
 378, holding as to details incident to performance of work foreman and com- 
 mon laborer are fellow servants; Atchison, T. & S. F. R. Co. v. Martin. 7 X. M. 
 172, 34 Pac. 536, holding foreman of section-gang fellow servant of section-hand 
 in operation of hand car; Corneilson v. Eastern R. Co. 50 Minn. 26, 52 N. W. 
 224, holding engineer in charge of blasting, fellow servant of laborer injured 
 while removing unexploded charge of powder by method directed by engineer; 
 Hanna v. Granger, 18 R. I. 512, 28 Atl. 659, holding engineer of stenm roller, 
 used in repairing streets, fellow servant of flagman to roller, injured by engi- 
 neer negligently starting roller without warning; Hjelm v. Western Granite 
 Contracting Co. 94 Minn. 172, 102 X. W. 384, holding that the person operat- 
 ing the quarry, and having charge of the blasting was a vice-principal; Jeraming 
 v. Great Xorthern R. Co. 96 Minn. 313, 1 L.R.A. (N.S.) 704, 104 X. W. 1079. 
 holding that a foreman to the extent to which the master's absolute and per- 
 sonal duties are delegated to him, acts as a vice-principal, but where engaged 
 with others in the common employment, he is a fellow servant; Doerr v. Daily 
 News Pub. Co. 97 Minn. 250, 106 N. W. 1044, holding that the act of the fore- 
 man of the press room in starting a press, while engaged with the servant in 
 the ordinary usual duty of running the machine, is the act of a fellow servant; 
 Borgerson v. Cook Stone Co. 91 Minn. 95, 97 X. W. 734, holding that a fore- 
 man in charge of a quarry, by placing one man so as to make the place where 
 another worked, more dangerous, acted as a vice-principal ; McCoy v. Xorthern 
 Heating & Electric Co. 104 Minn. 237, 116 N. W. 488, holding that where a 
 foreman directed the servant to enter a trench which was dangerous because 
 not properly protected from caving in, the foreman acted as a vice-principal ; 
 Fahey v. Federal Steel Foundry Co. 19 Pa. Dist. R. 317, 11 Del. Co. Ct. Rep. 107, 
 holding that helper engaged in fusing iron in steel foundry is fellow servant of 
 foreman directing him how to make plugs. 
 
 Cited in footnote to Palmer v. Michigan C. R. Co. 17 L. R. A. 637, which holds 
 assistant road-master not fellow servant of gang of men working under him. 
 
 Cited in notes (12 L.R.A. 97) as to when master is liable for negligence of 
 coservant acting under authority; (18 L.R.A. 824) on negligent superiors. 
 
 Distinguished in Lohman v. Swift & Co. 105 Minn. 151, 117 N. W. 418, hold- 
 ing that where the foreman started a machine in motion which the servant was 
 repairing pursuant to the master's orders, the foreman was a vice-principal and 
 not a fellow-servant. 
 Test whether one Is vice principal or fellow servant. 
 
 Cited in Ell v. Northern P. R. Co. 1 X. D. 352, 12 L. R. A. 102, 26 Am. St. 
 Rep. 621, 48 N. W. 222; Carlson v. Xorthwestern Teleph. Exchange Co. 63 Minn. 
 432, 65 N. W. 914; Lundberg v. Shevlin-Carpenter Co. 68 Minn. 137, 70 N. W. 
 1078; O'Xiel v. Great Xorthern R. Co. 80 Minn. 30, 51 L. R. A. 539, 82 X. W. 
 1086, holding test whether one is vice principal, not superiority of rank, but 
 nature of duty or service; Callan v. Bull, 113 Cal. 601, 45 Pac. 1017. and 
 Perras v. A. Booth & Co. 82 Minn. 196, 84 X. W. 739, holding servant to whom 
 is delegated master's duty to provide safe instrumentalities and place to work, 
 is vice principal when engaged in performance of special powers; Soutar v. 
 31inneapolis International Electric Co. 68 Minn. 20. 70 X. W. 790, holding per- 
 
775 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 793 
 
 son authorized by master to provide appliances and place to work and to su- 
 pervise performance of work is vice principal; Wellston Coal Co. v. Smith, 65 
 Ohio St. 76, 55 L. R. A. 102, 87 Am. St. Rep. 547, 61 X. E. 143, holding em- 
 ployee to whom mine hoss delegates duty of keeping entry to mine safe is not 
 as to performance of such duty fellow servant to other miners; Carlson v. North- 
 western Teleph. Exchange Co. 63 Minn. 437, 65 N. W. 914 (dissenting opinion), 
 majority holding foreman in charge of work of excavating ditch, with authority 
 to employ and discharge men, is vice principal; Pasco v. Minneapolis Steel & 
 Machinery Co. 105 Minn. 133, 18 L.R.A.(N.S.) 155, 117 N. W. 479, holding that 
 the test of a fellow-servant or vice-principal is whether the person was entrusted 
 with some absolute duty of the master, and not the nature of his duty, service 
 or rank. 
 
 Cited in notes (51 L. R. A. 604, 614) on vice principalship considered with 
 reference to superior rank of negligent servant; (54 L. R. A. 39, 40, 42, 43) on 
 vice principalship as determined with reference to character of act which caused 
 injury; (8 L. R. A. 818) on vice principals and agents; (54 L. R. A. 60) on 
 servant acting in dual capacity; (54 L. R. A. 69) on what duties cannot be 
 delegated. 
 
 Distinguished in Blomquist v. Chicago, M. & St. P. R. Co. 60 Minn. 430, 62 
 N. W. 818, holding foreman in charge of construction of platform and erection 
 of derrick is vice principal, and not fellow servant, of common laborer. 
 Servants In different departments. 
 
 Cited in Bergquist v. Minneapolis, 42 Minn. 472, 44 N. W. 530, holding laborer 
 excavating trench is fellow servant with laborer putting in curbing as ex- 
 cavation progressed; Eraser v. Red River Lumber Co. 45 Minn. 237, 47 X. \V. 
 785, holding "sorter" and "piler" of lumber under same general control, and 
 engaged in promoting common object, are fellow servants. 
 
 Cited in footnotes to Clarke v. Pennsylvania Co. 17 L. R. A. 811, which holds 
 section boss of one gang and member of another gang fellow servants; Fisher v. 
 Oregon Short Line & U. X. R. Co. 16 L. R. A. 519, which holds section foreman 
 and conductor not fellow servants; Wischam v. Rickards, 10 L. R. A. 97, which 
 holds factory employee assisting servants of one delivering fly-wheel, servant 
 of latter. 
 Liability of master for negligence of fellow servant. 
 
 Cited in Greeley v. Foster, 32 Colo. 304, 75 Pac. 351, holding master's duty 
 to provide safe place for the servant to work, did not apply where at order of 
 foreman servant went into a caving trench to shore it up. 
 Duty of master in respect to safety of appliances and structures. 
 
 Cited in footnotes to Lehigh & W. Coal Co. v. Hayes, 5 L. R. A. 441, which 
 holds master furnishing ordinary appliances not liable for failure to furnish 
 unusual one; Sweet v. Ohio Coal Co. 9 L. R. A. 861, which holds master may 
 -conduct business in own way, though another method less hazardous; Pittsburg 
 & L. E. R. Co. v. Henley, 15 L. R. A. 384, which holds use of two coupling de- 
 vices not negligence per se; McKee v. Chicago, R. I. & P. R. Co. 13 L. R. A. 817, 
 which holds placing wing fences at cattle-guard almost 4 feet from track not 
 negligence; Goodrich v. Xew York C. & H. R. R. Co. 5 L. R. A. 750, which holds 
 master liable for using foreign cars with defective coupling apparatus. 
 
 Cited in note (20 Am. St. Rep. 40) on duty toward servant to furnish safe 
 .appliances. 
 Assumption of risk. 
 
 Cited in Brunell v. Southern P. Co. 34 Or. 264, 56 Pac. 129, holding act of 
 section-hand dropping tamping bar, which being struck by approaching grip car 
 
4 L.R.A. 793] L. R. A. CASES AS AUTHORITIES. 776 
 
 was thrown against leg of another section-hand, is within risk assumed by lat- 
 ter; Baltimore & O. S. W. R. Co. v. Welsh, 17 Ind. App. 513, 47 N. E. 182, hold- 
 ing employee on construction train assumes risk of injury from defective con- 
 dition of railroad; McQueeny v. Chicago, M. & St. P. R. Co. 120 Iowa. 52."). U4 
 N. W. 1124, holding railroad company not liable for injury to employee by 
 caving of bank due to apparent nature of soil. 
 
 Cited in notes (13 L. R. A. 375) on when servant assumes risk of safety of 
 implements; (6 L. R. A. 585) on nonassumption by employee of risk of neg- 
 ligence of master's representative: (7 L. R. A. 503) on combined negligence of 
 master and servant. 
 Liability of master in respect to temporary structures used in -work. 
 
 Cited in F. C. Austin Mfg. Co. v. Johnson, 32 C. C. A. 317, 60 U. S. App. 661, 89 
 Fed. 684 (dissenting opinion), majority holding scaffolding built under direc- 
 tion of general agent to support superstructure of bridge is appliance furnished 
 by master; Kerr-Murray Mfg. Co. v. Hess, 38 C. C. A. 647, 98 Fed. 61 (dissent- 
 ing opinion), majority holding master responsible for negligence of servant 
 providing defective material for scaffolding, without regard to rank; Ralph v. 
 American Bridge Co. 30 Wash. 505, 70 Pac. 1098, holding master liable for in- 
 jury to servant due to defective ladder; Hamlin v. Lanquist & I. Co. Ill Minn. 
 497, 127 N. W. 490, 20 Ann. Cas. 893 (dissenting opinion), on liability of mas- 
 ter for injury to servant from failure of fellow servant to fasten derrick witb 
 clamps furnished by master. 
 
 Cited in footnote to St. Louis, A. & T. R. Co. v. Triplett, 11 L. R. A. 773, 
 which holds master's duty to protect repair track not fulfilled by adopting rule 
 sufficient if faithfully observed by employees. 
 
 Cited in notes (54 L. R. A. 144, 148) on negligence of coservant in respect 
 to preparation or structual modification of instrumentalities or their parts; 
 (51 L. R. A. 531) on doctrine that vice principalship not deducible merely from 
 possession of power over injured servant as applied to construction work. 
 
 Distinguished in Sims v. American Steel Barge Co. 56 Minn. 72, 45 Am. St. 
 Rep. 451, 57 N. W. 322, holding stage builders not fellow servants to ship-plater 
 using staging when latter furnished by master. 
 Scaffolding made by laborers. 
 
 Cited in Oelschlegel v. Chicago G. W. R. Co. 73 Minn. 331, 76 N. W. 56, and 
 Marsh v. Herman, 47 Minn. 539, 50 N. W. 611, holding where construction of 
 scaffolding is part of main work to be done and used as means of doing remainder, 
 those engaged in entire work are fellow servants. 
 Res jndicata. 
 
 Cited in Matteson v. United States & C. Land Co. 112 Minn. 193, 127 X. W. 
 629, holding that law established in former action dismissed without prejudice 
 does not become res judicata. 
 
 4 L. R. A. 800, MOXAGHAN v. STATE, 66 Miss. 513, 6 So. 241. 
 Sale of intoxicating liquor to minors. 
 
 Cited in Beck v. State, 69 Miss. 218, 13 So. 835. holding one who aids in unlaw- 
 ful sale of intoxicating liquor properly convicted : Yakel v. State, 30 Tex. App. 
 399, 20 S. W. 205, holding delivery of liquor to minor paying for it. violation of 
 the law, although minor was sent by father: Re Mac Rae. 75 Xeh. 760, 121 Am. 
 St. Rep. 829, 106 N. W. 1020, holding intoxicating liquor delivered to a minor 
 who purchases for, and delivers to one to whom it can lawfully be sold, is not 
 a sale to the minor. 
 
 Cited in notes (10 L.R.A. 544) on sale of intoxicating liquors to minors r. 
 
777 L. K. A. CASES AS AUTHORITIES. [4 L.R.A. 809 
 
 (3 L.R.A. (X.S.) 1196) on penal liability for selling liquor to minor acting as 
 agent for adult; (41 Am. St. Rep. 821) on sale of liquors to minors by direc- 
 tion of parents. 
 Construction of statutes. 
 
 Cited in note (30 Am. St. Rep. 265) on construction of statutes. 
 
 4 L. R. A. 801, GOOD v. GALVESTON, H. & S. A. R. CO. (Tex.) 11 S. W. 854. 
 Carrier's contract. 
 
 Cited in Norfolk & W. R.,Co. v. Reeves, 97 Va. 294, 33 S. E. 606, holding car- 
 rier waived stipulation of notice of claim when name of carrier's freight agent 
 and location of office blank. 
 
 Cited in notes (6 L. R. A. 854) on carrier's power to stipulate for exemption 
 from liability for neglect of itself, its servants, or its agents; (9 L. fR. A. 450) on 
 duty to feed and water stock; (9 L. R. A. 452) on carrier's liability for mis- 
 carriage and wrongful delivery; (44 L. R. A. 455) on statutory duties of carriers 
 of live stock, with reference to care of stock during transportation; (7 L.R.A. 
 (N.S. ) 1045) on reasonableness of time fixed for presenting claim for damages 
 to livestock shipped; (17 L.R.A. (N.S. ) 645) on notice of loss or injury to goods, 
 required by carrier's contract as condition precedent. 
 
 4 L. R. A. 803, .PARKER v. PEOPLE, 13 Colo. 155, 21 Pac. 1120. 
 Consolidation of indictments. 
 
 Cited in Howard v. United States, 34 L. R. A. 515, 21 C. C. A. 592, 43 U. S. 
 App. 678, 75 Fed. 992, holding that cumulative sentences may be imposed; Re 
 Walsh, 37 Neb. 456, 55 N. W. 1075, and Re Packer, 18 Colo. 531, 33 Pac. 578, hold- 
 ing successive penalties for several convictions, proper; Re Packer, 18 Colo. 528, 
 33 Pac. 578, holding that separate judgments should be entered where cases are 
 consolidated for trial; Re Dolph, 17 Colo. 39, 28 Pac. 470, holding act permitting 
 criminal proceedings by information concurrently with indictment, valid. 
 
 Cited in notes (9 L.R.A. 182) on joining of offenses of same general character 
 in indictment; (3 L.R.A. (N.S.) 414) on consolidation of two indictments for 
 trial; (7 L.R.A. (N.S.) 125) on cumulative sentences. 
 
 Grand jury. 
 
 Cited in notes (27 L. R. A. 788) on organization of grand jury; (27 L. R. A. 
 847) on number of grand jurors necessary or proper to act. 
 Rig-hts of prisoner on trial. 
 
 Cited in note (39 L. R. A. 821) on rights of prisoner to appear unmanacled at 
 his trial. 
 
 4 L. R. A. 809, CHADDOCK v. DAY, 75 Mich. 527, 13 Am. St. Rep. 468. 42 N. W. 
 977. 
 
 Licensing; venders. 
 
 Cited in State v. Foster, 22 R. I. 173, 50 L. R. A. 344, 46 Atl. 833, holding act 
 regulating sales by itinerant venders valid; Stull v. De Mattos, 23 Wash. 76, 51 
 L. R. A. 895, 62 Pac. 451, holding license fee of transient merchants unreasonable: 
 Saginaw v. Saginaw Circuit Judge, 106 Mich. 35. 63 N. W. 985, holding ordinance 
 requiring unreasonable license fees void; Re Snyder, 10 Idaho, 695, 68 L.R.A. 713, 
 79 Pac. 819, holding invalid ordinance prohibiting farmers from selling beef in 
 city without license; Allport v. Murphy, 153 Mich. 492, 116 X. W. 1070. hold- 
 ing peddler's license ordinance valid and applicable as well to resident store- 
 keepers as to other persons peddling; State v. Wright, 53 Or. 350, 21 L.R.A. 
 
4 L.R.A. 809] L. R. A. CASES AS AUTHORITIES. 77S 
 
 (X.S. ) 353, 100 Pac. 296, holding peddler's license law invalid where made ap- 
 plicable only to the selling of certain articles. 
 
 Cited in footnotes to Knisely v. Cotterel, 50 L. R. A. 86, which sustains statute 
 fixing different rates of license for retailers, wholesalers, and sellers on board of 
 trade; Com. use of Titusville v. Clark. 57 L. R. A. 348, which holds void, exemp- 
 tion from license tax of contractors and real-estate dealers, but not others, whose 
 business less than $1,000; State v. Robinson, 6 L. R. A. 339, which construes 
 charter provision as to licensing hackmen, etc., as not applying to one hiring rigs 
 to persons using same; Littlefield v. State, 28 L. R. A. 588, which limits power to 
 license sales of milk to regulation, and not raising of revenue; Com. v. Brown, 28 
 L. R. A. 110, which sustains weekly tax on sales of oysters; Harrodsburg v. Ren- 
 fro, 51 L. R. A. 897, which holds void, ordinance imposing greater license fee for 
 sale of liquors on main street of town than elsewhere. 
 
 Cited in notes ( 30 L. R. A. 434) on limit of amount of license fees; (24 L. R. 
 A. 585) on market regulations restricting sales; (9 L. R. A. 788) on municipal 
 license; (9 L. R. A. 70) on regulation of markets and market houses; (6 L. R 
 A. 509) on license of occupations, and privilege taxes; (35 L.R.A. (N.S.) 1075) 
 on validity of license tax on peddlers so high as to be prohibitory; (47 Am. St. 
 Rep. 702) on license or regulation of business as sanitary measure; (129 Am. 
 St. Rep. 264, 269, 275) on constitutional limitations on power to impose license 
 or occupation taxes; (16 Am. St. Rep. 584; 28 Am. St. Rep. 184)1 on validity of 
 municipal ordinance. 
 
 Distinguished in Grand Rapids v. Braudy, 105 Mich. 678, 32 L. R. A. 121, 55 
 Am. St. Rep. 472, 64 N. W. 29, holding license fee and bond required of pawn- 
 brokers and junk-dealers reasonable; People v. Baker, 115 Mich. 200, 73 N. W. 
 115, holding peddler's license fee of $5 per day unreasonable. 
 Practice In mandamus. 
 
 Cited in Allport v. Murphy, 153 Mich. 490, 116 N. W. 1070, on practice in 
 order to show cause why mandamus should not issue to compel the issue of a. 
 warrant for peddling without license. 
 
 Cited in note (15 Eng. Rul. Cas. 136) on when mandamus lies. 
 Uniformity of taxation. 
 
 Cited in foot note to Nathan v. Spokane County, 65 L.R.A. 337. which holds 
 property liable to taxation under general laws of state not exempt because re- 
 turned for taxation for same years in another state. 
 
 4 L. R. A. 813, DETROIT v. BEECHER, 75 Mich. 454, 42 N. W. 986. 
 
 Reaffirmed on second appeal in 92 Mich. 269, 52 N. W. 731. 
 Proceedings for talcing: property for public nse. 
 
 Cited in Trowbridge v. Detroit, 99 Mich. 445, 58 N. W. 368. holding proceedings 
 for street opening may be taken under general act as well as under charter; 
 Grand Rapids School Furniture Co. v. Grand Rapids, 92 Mich. 570, 52 N. W. 
 1028, holding that damages for taking property for street opening cannot be 
 considered in making assessment for benefit; Grand Rapids v. Luce, 92 Mich. 94, 
 52 N. W. 635, holding street shall not be opened unless benefit to public shall 
 equal compensation awarded to landowners; Miller v. Oakwood T\vp. 9 N. D. 625,. 
 84 N. W. 556, holding that newly established highway should not be vacated un- 
 less new conditions render it Unnecessary or undesirable; ^Yater Comrs. v. Lor- 
 inan, 158 Mich. 613, 123 N. W. 52, holding unconstitutional act which fails to- 
 provide that jury must pass upon the necessity for the taking; Boussneur v. 
 Detroit, 153 Mich. 588, 117 N. W. 220, on validity of proceedings where ne- 
 cessity, and valuation were passed upon by two different juries. 
 
779 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 826 
 
 Cited in notes (8 L.R.A. 323) on condemnation of property by municipalities 
 for public uses; (22 LvR.A. (X.S.) 70,' 71) on judicial power over eminent do- 
 main; (85 Am. St. Rep. 304, 313) on elements of damages allowable in eminent 
 domain proceedings. 
 
 4 L. R. A. 819, WALES v. BOWDISH, 61 Vt. 23, 17 Atl. 1000. 
 When property chargeable tvith debts of donee. 
 
 Cited in Patten v. Herring, 9 Tex. Civ. App. 646, 29 S. W. 388, holding property 
 devised in trust may be exempted from debts of beneficiary if such intention rea- 
 sonably certain; Seymour v. McAvoy, 121 Cal. 442, 41 L. R. A. 547, 53 Pac. 946, 
 holding testamentary trust may provide that interest of beneficiary shall not be 
 subject to claims of creditors: Patterson v. Lawrence, 83 Ga. 708, 7 L. R. A. 145, 
 10 S. E. 355, holding unexecuted power of appointment vests no interest in donee 
 and therefore not subject to his debts; Price v. Cherbonnier, 103 Md. 110, 63 
 Atl. 209, holding property not chargeable with debts where decedent had an 
 equitable estate therein with power to devise to particular persons, and limi- 
 tation over in case of failure to exercise the power; Merchants' Nat. Bank V. 
 Crist, 140 Iowa, 313, 23 L.R.A. (X.S.) 529, 132 Am. St. Rep. 267, 118 N. W. 
 394, on doctrine of spendthrift's trusts. 
 
 Cited in footnotes to Murphy v. Delano, 55 L. R. A. 727, which holds income of 
 spendthrift trust not within reach of creditors by void agreement of trustee to 
 pay certain portion of income absolutely to beneficiary; Roberts v. Stevens, 17 
 L. R. A. 266. which authorizes establishment of spendthrift trust free from rights 
 of creditors; Hutchinson v. Maxwell, 57 L. R. A. 384, which denies power to cre- 
 ate equitable life estate free from debts of beneficiary; Leigh v. Harrison, 18 L. 
 R. A. 49, which denies creditor's right to reach debtor's interest under spend- 
 thrift trust. 
 
 Cited in notes (7 L.R.A. 367) on legacy to nephews and nieces; (21 Eng. Rul. 
 Cas. 586) on executed general power as assets for payment of debts of deceased 
 donee of the power; (25 Eng. Rul. Cas. 625; 24 Am. St. Rep. 696) on spendthrift 
 trusts. 
 What may- he considered fn construing will. 
 
 Cited in Bailey v. Brown, 19 R. I. 674, 36 Atl. 581, holding will must be studied 
 in light of surrounding circumstances to determine intent. 
 
 4 L. R. A. 826, FEENEY v. HOWARD, 79 Cal. 525, 12 Am. St. Rep. 162, 21 Pac. 
 
 984. 
 Creation of trnst in property. 
 
 Cited in Moore v. Hamerstag. 109 Cal. 124, 41 Pac. 805, holding conveyance of 
 mining claim by locator cannot thereafter be turned into a trust by oral declara- 
 tion of parties thereto ; Kimball v. Tripp, 136 Cal. 635, 69 Pac. 428, holding prop- 
 erty conveyed to agent in trust though not in writing cannot be converted to 
 agent's use; Adams v. Lambard, 80 Cal. 435. 22 Pac. 180, holding parol agreement 
 to reconvey upon payment of debt where relations of grantor and grantee confi- 
 dential, a trust enforceable in equity; Hasshagen-v. Hasshagen, 80 Cal. 518, 22 
 Pac. 294, declaring trust not created by verbal agreement to reconvey property 
 deeded to defraud creditors; Alaniz v. Casenave, 91 Cal. 46. 27 Pac. 521, holding 
 that fraudulent intent need not be proved to establish constructive trust, where 
 relations of grantor and irrantee were confidential: Babcock v. Chase, 111 Cal. 
 353, 43 Pac. 1105, refusing to set aside absolute deed of property with request that 
 it be held for grantor, where no fraud appeared or confidential relations existed: 
 Haussman v. Burnham, 59 Conn. 143. 21 Am. St. Rep. 74. 22 Atl. 1065 (dissenting 
 opinion), majority holding that equity will compel reconveyance, by heirs, where 
 
4 L.R.A. 826] L. R. A. CASES AS AUTHORITIES. 780 
 
 ancestor, in attempting to comply with agreement to reconvey, executed defective 
 deed; Gray v. Walker, 157 Cal. 384, 108 Pac. 278, holding that trust does not 
 arise where man conveys land to his uncle upon understanding that latter will 
 reconvey it on request; Cooney v. Glynn, 157 Cal. 587, 108 Pac. 506. holding that 
 trust arises from conveyance by mother to son on his parol promise to hold it in 
 trust for daughter; Kinley v. Thelen, 158 Cal. 183, 110 Pac. 513, holding that 
 parol trust agreement to pay purchase price and taxes on land is unenforcible. 
 
 Cited in notes (115 Am. St. Rep. 778) on creation of trusts in land by parol; 
 (39 L.R.A. (N.S.) 912, 928) on grantee's oral promise to grantor as giving rise 
 to constructive trust. 
 
 Distinguished in Chamberlain v. Chamberlain, 7 Cal. App. 636, 95 Pac. 659, 
 holding that constructive trust arises where a conveyance is induced by deceit 
 and fraudulent representations. 
 Parol evidence as to written agreement. 
 
 Cited in Langley v. Rodriguez, 122 Cal. 581, G8 Am. St. Rep. 70, 55 Pac. 406, 
 holding evidence admissible that oral agreement to induce execution of written 
 agreement was made without any intention of performing it. 
 
 Cited in notes (5 L. R. A. 596) on oral evidence of consideration in sealed in- 
 strument; (6 L. R. A. 34) on parol evidence to contradict consideration of con- 
 tract; (20 L.R.A. 108) on parol evidence as to consideration of deed; (20 L.R.A. 
 108; 14 Eng. Rul. Cas. 754) on parol evidence as to consideration of deed; (15 
 Am. St. Rep. 715) on parol evidence as to writings. 
 
 Distinguished in Brooks v. Union Trust & Realty Co. 146 Cal. 137, 79 Pac. 843, 
 holding parol evidence admissible to establish resulting trust under statute 
 though consideration be expressed. 
 Estoppel by recital. 
 
 Cited in Chaff ee v. Browne, 109 Cal. 220, 41 Pac. 1028, holding recital in mort- 
 gage on separate property of married woman, that she and her husband were 
 jointly and severally indebted for goods for purchase price of which it was given, 
 not binding on her. 
 Necessity of pleading: statute of frauds. 
 
 Cited in Hamilton v. Thirston, 93 Md. 220. 48 Atl. 709, holding statute of 
 frauds need not be pleaded when contract is denied by answer; Williams-Hay ward 
 Shoe Co. v. Brooks, 9 Wyo. 430, 64 Pac. 342, holding statute of frauds need not be 
 pleaded in action on oral contract for sale of goods ; Bickle v. Irvine, 9 Mont. 
 253, 23 Pac. 244, holding facts constituting fraud must be pleaded; Israel v. Day. 
 17 Colo. App. 207, 68 Pac. 122, holding defense of sale to plaintiff in violation of 
 statute of frauds, admissible under general denial in replevin; Hodgkins v. Dun- 
 ham, 10 Cal. App. 698, 103 Pac. 351, holding that where facts alleged show the 
 intent to deceive, it need not be alleged in express words; Bickle v. Irvine, 9 
 Mont. 253, 23 Pac. 244, holding facts showing constructive fraud not admis- 
 sible under general denial; Bleyer v. Bleyer, 219 Mo. 121, 117 S. W. 709, on 
 burden of proof where fraud and also fiduciary relationship appears. 
 
 Cited in note in 78 Am. St. Rep. 654. as to when and how statute of frauds 
 must be pleaded. 
 Pleading: ultimate facts. 
 
 Cited in Simons v. Bedell, 122 Cal. 346, 68 Am. St. Rep. 35, 55 Pac. 3, holding 
 rule requiring pleading of ultimate facts instead of evidentiary facts, not violated 
 in complaint. 
 Future promises as fraud. 
 
 Cited in note (10 L.R.A. (X.S. ) 641) on future promise as fraud. 
 
781 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 835 
 
 4 L. R. A. 831, LANG v. LYNCH, 38 Fed. 489. 
 Regulations of commerce In intoxicating; liquors. 
 
 Cited in Hart v. State, 87 Miss. 179, 112 Am. St. Rep. 437, 39 So. 523, holding 
 act making it misdemeanor to act as agent for buyer or seller of intoxicating 
 liquors within territory where sale is prohibited, not violative of commerce clause 
 of constitution; State v. Delamater, 20 S. D. 33, 8 L.R.A. (N.S.) 779, 129 Am. St. 
 Rep. 907, 104 N. W. 537, on taking orders for intoxicating liquors as constitut- 
 ing part of transaction of sale; Jones v. Yokum, 24 S. D. 183, 123 N. W. 272, 
 holding that law require license by wholesale liquor dealers applies to nonresi- 
 dent dealers selling through traveling salesmen. 
 
 Cited in notes (7 L. R. A. 183) on validity of statutes relating to imported 
 liquor; (15 L. R. A. 837) on right to recover price of intoxicating liquor sold for 
 illegal uses; (61 L. R. A. 427) on conflict of laws as to sales of intoxicating 
 liquors; (15 L.R.A. (N.S.) 928) on constitutional right to prohibit sale of intoxi- 
 cants. 
 
 4 L. R. A. 832, TUTEUR v. CHASE, 66 Miss. 476, 14 Am. St. Rep. 577, 6 So. 241. 
 Notice of fraud. 
 
 Cited in Fluegel v. Henschel, 7 N. D. 279, 66 Am. St. Rep. 642, 74 N. W. 996, 
 holding vendee under no duty to inquire into motives or circumstances of vendor 
 unless circumstances put prudent men on inquiry; Graham v. Morgan, 83 Miss. 
 605, 35 So. 874, holding conveyance by husband to wife in satisfaction of valid 
 indebtedness valid as against another creditor. 
 
 Cited in notes (6 L. R. A. 151) on investigation by purchaser; (9 L. R. A. 415) 
 on validity of voluntary conveyances; (32 L. R. A. 34, 46) on participation by 
 purchaser in fraud of vendor which will invalidate transfer for good considera- 
 tion as against the vendor's creditors; (28 Am. St. Rep. 618) as to when volun- 
 tary conveyances are fraudulent; (34 Am. St. Rep. 399, 402) OB vendee's knowl- 
 edge as affecting validity of fraudulent conveyance. 
 
 4 L. R. A. 834, WHITFIELD v. MERIDIAN, 66 Miss. 570, 14 Am. St. Rep. 596, 
 
 6 So. 244. 
 Streets; duty to keep in repair. 
 
 Cited in notes (10 L.R.A. 735) on duty of municipal corporation to keep 
 streets and sidewalks in safe condition; (20 L.R.A. (N.S.) 530, 706, 729) on 
 liability of municipality for defects or obstructions in streets; (29 L.R.A. (N.S.) 
 824) on duty of municipality as to condition of rural highway within its limits; 
 (30 Am. St. Rep. 385; 103 Am. St. Rep. 260, 264, 266, 281, 108 Am. St. Rep. 
 151) on municipal liability to persons injured by defects in, or want of repair 
 of, streets. 
 Notice of defects. 
 
 Cited in Bradford v. Anniston, 92 Ala. 351, 25 Am. St. Rep. 60, 8 So. 683, 
 holding notice to strat overseer of defect in street is notice to city. 
 
 Cited in notes (10 L.R.A. 740) on proof of corporation's notice of defect in 
 street essential to recovery for personal injury; (30 Am. St. Rep. 525) on notice 
 of defects in streets. 
 
 4 L. R. A. 835, PEARSON v. STATE, 66 Miss. 510, 6 So. 243. 
 Intoxicating; liquors; sales in places prohibited. 
 
 Cited in State v. Shields, 110 La. 556, 34 So. 673, holding sales of liquor on out- 
 side orders take place upon delivery of goods to carrier for shipment; Anglin v. 
 State. 96 Miss. 221, 50 So. 728, holding that sale is made in state where seller 
 delivered liquor to buyer, though buyer went into seller's state and ordered and 
 
4 LJLA. 835] L. R. A. CASES AS AUTHORITIES. 
 
 paid for it there; Hurley v. Corinth, 97 Miss. 408, 52 So. 695, holding that sale is 
 nude in state, where order front outside state is filled by delivery of liquor to 
 
 Cited in footnotes to Com. T. Fleming, 5 L. B. A. 470, which holds delivery of 
 liquors to carrier to be sent C. O. D. at place where seller licensed to fill orders 
 by mail, from other places, not illegal; State v. Cairns, 53 L. K- A. 55, which de- 
 nies guilt of express company's agent delivering to consignee goods sent C. O. D. 
 with reason to believe they are liquors. 
 
 Cited in note (7 L. R. A. 184) on validity of statutes relating to imported 
 liquors. 
 
 Distinguished in Hart T. State, 87 Miss. 182, 112 Am. St. Rep. 437, 39 So. 523, 
 holding person guilty of illegal sale where he acted as agent and took the order 
 pursuant to which the liquor was afterward delivered. 
 Ke* *f delivery *f smm** t* cmrrier * title f eoMim*r. 
 
 Cited in Queen City Mfg. Co. T. Blalaek, Miss. , 31 L.RJL 223, 18 So. 800, 
 holding delivery of goods in course of trade to carrier for shipment out of state, 
 came to remain property of consignor until delivered, is "removal of goods beyond 
 the state" constituting ground for attachment. 
 
 Cited in note (22 L R. A. 425) on passing of title to property by delivery to 
 carrier for transportation. 
 
 4 L. R. A. 836, MT. ACBURX CEMETERY v. CAMBRIDGE, 150 Mass. 12, 22 N. 
 
 EL 66. 
 Validity of peeial m*mrm*^*mtm. 
 
 Cited in Sears T. Boston, 173 Mass. 76, 43 L R. A. 836, 53 N. E. 138, holding 
 street sprinkling an improvement for which abntter may be assessed; Sears v. 
 Street Comrs. 173 Mass. 352, 53 X. EL 876, holding act authorizing special sewer 
 assessment irrespective of or beyond amount of special benefits, unconstitutional 
 and void; Stevens v. Port Huron, 149 Mich. 555, 113 X. W. 291, 12 A. t EL Ann. 
 Cas. 603 (dissenting opinion) on special benefit to property as being essential tc 
 justify special assessment. 
 Exemption <* peetal mmmimmmmimt. 
 
 Cited in Boston v. Boston A A. R. Co. 170 Mass. 99, 49 X. EL 95, holding abut- 
 ting land within railroad right of way nonassessable for highway improvements; 
 Re Sixth Ave. 59 Wash. 48, 109 Pac. 1052, Ann. Cas. 1912A, 1047, holding that 
 lots conveyed by private cemetery to private owners are exempt from local im- 
 provement assessments. 
 
 Cited in note (35 L. R. A. 37) on liability to local assessments for benefits, of 
 property exempt from general taxation. 
 BJ grh t i eeMteterr !. 
 
 Cited in Anderson v. Acheson, 132 Iowa, 757, 9 L.RJMX-S.) 223, 110 X. W. 
 335, holding that one burying his dead in public cemetery under license acquires 
 an interest which continues as long as the place is used as a cemetery and his 
 license is not revoked by death. 
 
 4 L R. A. 40, BILEC v. PAISLEY, 18 Or. 47, 21 Pac. 934. 
 Effect *r ataeMee *f tmflmmmrtm. 
 
 Cited in Strickland v. Geide, 31 Or. 378, 49 Pac. 982, holding not necessary 
 to show existence of lawful indosure before damages recoverable for trespass 
 by sheep; Collins v. Lnndqnist, 154 Mich. 660, 118 X. W. 596, holding land owner 
 not bound to fence against trespassing cattle but may recover for any damages 
 done by them regardless off absence of fence; Pacific Livestock Co. v. Murray, 45 
 
783 L. R. A. CASES AS AUTHORITIES. [4 UtA. 845 
 
 Or. 1D7. 76 Pac. 1079, holding owner of sheep trespassing on unfeneed lands 
 liable for damages where statute requiring fences is not made applicable to 
 sheep; Harrison v. McClellan, 64 Misc. 433, 118 X. Y. Supp. 573; Wood v. Snider, 
 187 X. Y. 31, 12 L.R_A.(X.S.) 914, 79 N. E. 85S, on common law liability for 
 damages caused by trespassing animals as being the recognition of a natural 
 right pertaining to ownership. 
 
 Cited in note (22 L. R. A. 57, 60) as to liability of owner for trespass of 
 cattle. 
 
 Distinguished in Monroe v. Cannon, 24 Mont. 325, 81 Am. St. Rep. 439, 61 
 Pac. 863, holding owner liable for deliberately herding sheep on another's pas- 
 ture, notwithstanding statutory liability for animals breaking into fenced in- 
 closures. 
 Validity of statute requiring fence. 
 
 Cited in Poindexter T. May, 98 Va. 150, 47 L. R. A. 592, 34 S. E. 971, holding 
 statute denying landowner any recovery for trespass by animjilq unless lawfully 
 fenced, valid. 
 Liability of agrent hiring servants. 
 
 Cited in note (37 L. R. A. 49) on which of two or more persons is the master 
 of another who is hired by an agent. 
 Title necessary to maintain trespaaa. 
 
 Cited in Kunkel v. Utah Lumber Co. 29 Utah, 22, 81 Pac. 897, 4 A. A E. Ann. 
 Caa. 187, holding actual possession under tax deed sufficient to maintain tres- 
 pass against one without any title. 
 
 Cited in note (30 LJLA.(X.S.) 254) on necessity and character of title or 
 possession to sustain action of trespass. 
 
 4 L. R. A. 845, PEOPLE v. STEPHEXS, 79 CaL 428, 21 Pac. 856. 
 
 Former judgment. 
 
 Cited in People v. McDaniels, 137 Cal. 195, 59 L. R. A. 579, 92 Am. St. Rep. 
 81, 69 Pac. 1006, holding conviction of battery bars subsequent prosecution for 
 lesser offense included therein; People T. Defoor. 100 Cal. 155, 34 Pac. 642, 
 holding conviction of assault bar to prosecution for mayhem committed during 
 same assault; Cook v. State, 43 Tex. Crlm. Rep. 188, 96 Am. St. Rep. 854, 63 
 S. W. 872, holding that upon contradictory evidence, question whether trans- 
 action was one and the same act is for jury under plea of former acquittal. 
 
 Cited in footnotes to People v. McDaniels, 59 L. R. A. 578, which holds prose- 
 cution for assault to commit murder barred by conviction of battery for same 
 acts; Xissen v. Cramer, 6 L. R. A. 780, which holds relevant words spoken by 
 party to action during trial privileged; Xordlinger v. United States, 70 L.R.A. 
 227, which holds acquittal of larceny of piano bar to subsequent prosecution for 
 same offense except that instrument is described as an auto-electric piano or auto- 
 elect ra. 
 
 Cited in notes (9 L.R.A. 621) as to libel and slander; (92 Am. St. Rep. 123) 
 on identity of offenses on plea of former jeopardy. 
 Splitting P otfenses. 
 
 Cited in People v. Bunkers, 2 CaL App. 204, 84 Pac. 364. holding that per- 
 son guilty of a crime can not also be found guilty as an accomplice upon the 
 same overt acts. 
 
 Distinguished in United States v. Howell, 65 Fed. 407, holding that indict- 
 ment for having in possession counterfeit coin may be split up into several 
 counts each alleging possession of different denomination of coins. 
 
4 L.R.A. 848] L. R. A. CASES AS AUTHORITIES. 784 
 
 4 L. R. A. 848, PHOENIX INS. CO. v. COPELAND, 86 Ala. 551, 6 So. 143. 
 
 Third appeal in 90 Ala. 616, 38 Am. St. Rep. 134, 11 So. 746. 
 Effect of sustaining demurrer. 
 
 Cited in Louisville & N. R. Co. v. Davis, 91 Ala. 493, 8 So. 552, refusing to 
 reverse for error in sustaining demurrer to special plea of matters of which 
 defendant had full benefit under general issue; Powell v. Henry, 96 Ala. 415, 
 11 So. 311, and Louisville & N. R. Co. v. Trammell, 93 Ala. 353, 9 So. 870, 
 holding sustaining demurrer to special plea not prejudice where matter therein 
 was equally available under general issue. 
 Harmless error. 
 
 Cited in note (11 Am. St. Rep. 288) on harmless error. 
 Estoppel to avoid policy. 
 
 Cited in Commercial Union Assur. Co. v. Ryalls, 169 Ala. 538, 53 So. 754 (dis- 
 senting opinion), on estoppel of company to avoid policy, where insured fully 
 informs agent of true state of title. 
 
 Cited in notes (16 L.R.A.(N.S.) 1225) on parol evidence rule as to varying or 
 contracting written contracts, as affected by doctrine of estoppel as applied to 
 insurance policies; (29 Am. St. Rep. 909) on estoppel to avoid policy for en- 
 cumbrances on insured property. 
 Force of agent's subsequent admissions. 
 
 Distinguished in Liverpool & L. & G. Ins. Co. v. Tillis, 110 Ala. 211, 17 So. 
 672, holding special adjuster with authority of general adjuster waived con- 
 dition of formal proofs of loss by denying insurer's liability. 
 Notice. 
 
 Cited in Pope v. Glens Falls Ins. Co. 130 Ala. 359, 30 So. 496, and Western 
 Assur. Co. v. Stoddard, 88 Ala. 611, 7 So. 379, both holding notice of extent of 
 applicant's ownership to insurance agent pending negotiation, is notice to in- 
 surer; London & L. F. Ins. Co. v. Fischer, 34 C. C. A. 505, 92 Fed. 502, holding 
 condition of insurance policy against encumbrances waived by delivery with 
 knowledge thereof by agent authorized to withhold or deliver it; Liberty Ins. 
 Co. v. Boulden, 96 Ala. 513, 11 So. 771, holding condition of fire policy to be 
 void if insured not unconditional and sole owner, not avoided by notice to agent 
 that applicant had only a bond for title, and not a deed. 
 
 Cited in notes (8 L. R. A. 719) on notice of termination of contract of in- 
 surance; (16 L. R. A. 34) as to effect of knowledge by insurer's agent of falsity 
 of statements in application. 
 Effect of other insurance. 
 
 Cited in Arnold v. St. Paul, F. & M. Ins. Co. 106 Tenn. 532, 61 S. W. 1032. 
 holding policy taken out by insured's agent with condition against additional 
 insurance, invalidated by subsequent insurance without knowledge of agent's 
 act. 
 
 Cited in footnote to State Ins. Co. v. Schreck, 6 L. R. A. 524, which holds 
 policy on all personalty without specifying it, avoided by transfer of title, only 
 as to property encumbered at time of loss. 
 
 Cited in notes (10 L. R. A. 145) on cancelation of contracts of insurance: 
 (11 L. R. A. 345) on contracts of fire insurance; (5 L. R. A. 638) as to varying 
 terms of insurance contract. 
 Declarations of agent to prove agency. 
 
 Cited in note ( 16 Am. St. Rep. 199 ) on declarations of agent to prove agency. 
 Latitude on cross-examination. 
 
 Cited in Long v. Booe, 10G Ala. 580, 17 So. 716, holding latitude of cross- 
 examination within discretion of court. 
 
 Cited in note (14 Am. St. Rep. 480) on cross-examination of witnesses. 
 
785 L. R. A. CASES AS AUTHORITIES. [4 L.R.A. 850 
 
 Impeachment of witnesses. 
 
 Cited in Ott v. State, 160 Ala. 33, 49 So. 810, holding evidence admissible, on 
 question of bias of witness, showing that he tried to prevent certain justices 
 from presiding at the trial. 
 
 4 L. R. A. 850, BRAZIL BLOCK COAL CO. v. GAFFNEY, 119 Ind. 455, 12 Am. 
 
 St. Rep. 422, 21 N. E. 1102. 
 Imputing; negligence. 
 
 Cited in Williams v. South & North Ala. R. Co. 91 Ala. 639, 9 So. 77, hold- 
 ing father suing to recover for injuries to infant son during employment re- 
 sponsible for latter's contributory negligence, only if he consented to perilous 
 employment. 
 Duty to warn servant. 
 
 Cited in Stewart v. Patrick, 5 Ind. App. 53, 30 N. E. 814, holding master liable 
 for injury to inexperienced boy put at dangerous machine without warning as 
 to danger; Thomas Madden, Son & Co. v. Wilcox, 174 Ind. 665, 91 N. E. 933, 
 holding that ordering inexperienced boy, without warning or instruction, to 
 operate towpicker is negligence; Vanesler v. Moser Cigar & Paper Box Co. 108 
 Mo. App. 629, 84 S. W. 201, holding it to be the duty of employer to instruct 
 minor ten years of age when employed in dangerous place; Laporte Carriage 
 Co. v. Sullender, 165 Ind. 298, 75 X. E. 277, holding allegation showing necessity 
 of warning or instruction essential in order to hold master liable for failure to 
 warn or instruct. 
 
 Cited in footnotes to Ciriack v. Merchants Woolen Co. 6 L. R. A. 733, which 
 holds master not bound to warn twelve-year old servant of danger from cog 
 wheels in plain sight; Holland v. Tennessee Coal, Iron & R. Co. 12 L. R. A. 
 232. which holds it master's duty to warn servant of danger of flying iron when 
 boil of iron punctured; Tennessee Coal, Iron & R. Co. v. Kyle, 12 L. R. A. 103, 
 which holds running freight train without cow-catcher negligence; Fisher v. 
 Oregon Short Line & U. N. R. Co. 16 L. R. A. 519, holding it section foreman's 
 duty to notify conductor of approaching train, of snowslide. 
 
 Cited in notes (12 L. R. A. 344) as to duty and obligation of master; (7 L. 
 R. A. 172) as to master's duty not to expose servant to extraordinary risks; 
 (8 L. R. A. 636) as to effect of servant's knowledge of defective and dangerous 
 machinery; (8 L. R. A. 819) as to master's duty to instruct servant in use of 
 dangerous machinery. 
 Liability for injury outside scope of employment. 
 
 Cited in note (48 L. R. A. 799, 806) on liability for injuries received by the 
 servant in the performance of duties outside the scope of his original contract. 
 Risks assumed by servant. 
 
 Cited in Cudahy Packing Co. v. Marcan, 54 L. R. A. 258, which holds risk of 
 block on which minor employee works slipping on greasy floor assumed; Marino 
 v. Lehmaier, 61 L. R. A. 811, which holds risk of employment not assumed 
 per se, by child whose employment is forbidden because of immature age. 
 
 Cited in notes (24 Am. St. Rep. 323) on servant's right to rely on master's su- 
 perior knowledge of risk; (87 Am. St. Rep. 578, 580) on assumption of risk. 
 
 Distinguished in Levey v. Bigelow, 6 Ind. App. 699, 34 N. E. 128, holding 
 master not liable to infant employee who voluntarily exposes himself to obvi- 
 ous danger fully appreciated, without notice. 
 L.R.A. Au. Vol. L 50. 
 
4 L.R.A. 858] L. R. A. CASES AS AUTHORITIES. 786 
 
 4 L. R. A. 858, MEMPHIS & C. R. CO. v. GREER, 87 Tenn. 698, 11 S. W. 931. 
 Equitable set-off. 
 
 Cited in Central Appalachian Co. v. Buchanan, 33 C. C. A. 607, 62 U. S. App. 
 195, 90 Fed. 462, holding claim against insolvent subject of equitable set-off, 
 although unliquidated; De Laval Separator Co. v. Sharpless, 134 Iowa, 30, 111 
 N. W. 438, holding that court of equity will decree a set-off in favor of judg- 
 ment debtor in action by assignee of judgment, where the assignor is insolvent, 
 
 Cited in notes (10 L. R. A. 378) as to right of set-off; (9 L. R. A. 108) on 
 set-off of unliquidated cross-demand; (10 L. R. A. 378) as to rule concerning 
 equitable cross-demands; (12 L. R. A. 321) as to set-off for damage by negli- 
 gence and want of skill in performance of services; (31 L. R. A. 765, 767) on 
 injunctions against judgments for defenses existing prior to their rendition; (47 
 Am. St. Rep. 594) on equitable set-off after insolvency. 
 Agent's liability for misfeasance. 
 
 Cited in Kirkeys v. Crandall, 90 Tenn. 538, 18 S. W. 246, holding agent to 
 procure acceptance liable to principal for loss from taking acceptance from 
 officer known to him to be unauthorized therefor. 
 
 4 L. R. A. 863, HUGHES v. RECORDER'S COURT, 75 Mich. 574, 13 Am. St. 
 
 Rep. 475, 42 N. W. 984. 
 Regulation of truck marketing. 
 
 Cited in People v. Keir, 78 Mich. 104, 43 N. W. 1039, holding ordinance for- 
 bidding market wagons standing in street to be moved ouly when produce sold 
 out, within power to prevent obstructions; Hutchins v. Durham, 118 N. C. 469, 
 32 L. R. A. 707, 24 S. E. 723, holding occupant of market stall under ordinance 
 reserving discretionary power of revocation, licensee, and not lessee. 
 
 Cited in notes (24 L.R.A. 584) as to market regulations restricting sales; 
 (16 Am. St. Rep. 584) on municipal ordinances; (23 Am. St. Rep. 584) on power 
 of municipality to establish and regulate markets. 
 
 Distinguished in Grand Rapids v. Braudy, 105 Mich. 678, 32 L. R. A. 121, 
 55 Am. St. Rep. 472, 64 N. W. 29, holding arbitrary power of revocation of li- 
 cense of junk-dealer may be reserved in ordinance regulating license. 
 Prohibition ugainst criminal prosecutions. 
 
 Cited in Crittenden v. Booneville, 92 Miss. 285, 131 Am. St. Rep. 518, 45 
 So. 723, holding that prohibition lies to prevent prosecutions for violations of 
 void ordinance against operation of pool room. 
 
 Cited in notes 37 L.R.A. (N.S. ) 449, on prohibition to prevent numerous un- 
 founded prosecutions for alleged violation of statute or ordinance; (111 Am. St. 
 Rep. 935, 952) on writ of prohibition against criminal prosecutions. 
 
L. R A. CASES AS AUTHORITIES. 
 
 OASES IN 5 L. E. A. 
 
 5 L. R. A. 33, STRATTON v. PHYSIO-MEDICAL INST. 149 Mass. 505, 14 Am. 
 
 St. Rep. 442, 21 N. E. 874. 
 What are beqneats to pnbllc charity. 
 
 Cited in Greer County v. Texas, 197 U. S. 242, 49 L. ed. 738, 25 Sup. Ct. Rep. 
 437, on a grant of public school lands creating a public charity; Webber Hos- 
 pital Asso. v. McKenzie, 104 Me. 328, 71 Atl. 3032, holding a hospital which is 
 owned by private persons is not a charitable institution, though it indirectly 
 serves a charitable end; Hubbard v. Worcester Art Museum, 194 Mass. 290, 9 
 L.R.A.(X.S.) 695, 80 N. E. 490, 10 A. & E. Ann. Cas. 1025, on charitable trust 
 arising by implication from bequest to body organized for such purposes: Re 
 Shattuck, 193 N. Y. 453, 86 N. E. 455, on the word "educational" as describing 
 a charitable purpose. 
 
 Cited in footnotes to Re Sellers Chapel M. E. Church, 11 L. R. A. 282, which 
 holds trust for charitable use created by conveyance to trustees for erection of 
 church; Crerar v. Williams, 21 L. R. A. 454, which holds gift of free public li- 
 brary in great city charitable. 
 
 Cited in notes (5 L. R. A. 106) on what are public charities; (13 L. R. A. 
 218) on legislative power over administration of trusts by municipal corpora- 
 tions: (63 Am. St. Rep. 250, 259) on what are charitable uses or trusts. 
 Uncertainty In charitable grift. 
 
 Cited in footnotes to Gambel v. Trippe, 15 L. R? A. 235, whicli holds bequest 
 to trustees to pay over "to some Presbyterian institution" in specified city void 
 for indefiniteness ; Harrington v. Pier, 50 L. R. A. 307, which holds bequest for 
 promotion of temperance work in certain city not fatally indefinite; People ex 
 rel. Atty. Gen. v. Dashaway Asso. 12 L. R. A. 117, which holds promotion of 
 cause of temperance too vague description of purpose for which corporation 
 formed; Johnson v. Johnson, 22 L. R. A. 179, which holds devise to trustees for 
 some charitable purpose, with preference for something of educational nature, 
 bad for indefiniteness; Woman's Foreign Missionary Soc. v. Mitchell, 53 L. R. A. 
 711, which holds legacy to board of managers of Foreign Missionary Society of 
 M. E. Church properly paid to Woman's Foreign Missionary Society Thonpon 
 v. Brown, 62 L. R. A. 398, holding devise of fund to be distributed by execute; 
 to poor, in his discretion, valid. 
 
 Cited in notes (12 L.R.A. 415) on charitable uses and trusts; (14 L.R.A.(N.S.) 
 69, 108, 118) on enforcement of general bequest for charity or religion. 
 
 Distinguished in Haynes v. Carr, 70 N. H. 483, 49 Atl. 638, holding devise 
 to trustees for benefit of "the poor and destitute of the state," and "for charitable 
 and educational purposes therein," valid. 
 
 787 
 
5 L.R.A. 33] L. R. A. CASES AS AUTHORITIES. 788 
 
 Doctrine of cy pres. 
 
 Cited in Ely v. Atty. Gen. 202 Mass. 548, 89 N. E. 166, holding where the 
 founding of a home for Deaf Children as provided by the will, was impracticable 
 for want of funds to support it, the amount would be given to an established 
 home, for the same service. 
 
 Cited in footnotes to Adams Female Academy v. Adams, 6 L.R.A. 785, which' 
 authorizes use for public school of fund bequeathed to establish "female acad- 
 emy;" Kelly v. Nichols, 19 L.R.A. 413, which holds doctrine of cy pres inappli- 
 cable to bequest not made to definite charitable use; Teele v. Bishop of Derry, 38 
 L.R.A. 629, which denies right to divert fund, bequeathed for building of chapel 
 which people became too poor to support, for repair of neighboring parish church ; 
 Gladding v. St. Matthew's Church, 65 L.R.A. 225, whicl: holds that legacj to & 
 particular church will not be administered cy pres after termination of its ex- 
 istence in behalf of deaf mutes for whose benefit the church was. 
 Authority of trustees of charity. 
 
 Cited in note (11 L. R. A. 214) on authority of trustees for charitable use. 
 Lapsing- of charitable devise. 
 
 Cited in Teele v. Bishop of Derry, 168 Mass. 343, 38 L. R. A. 631, footnote p. 
 629, 60 Am. St. Rep. 401, 47 N. E. 422, holding that devise to erect chapel in par- 
 ticular village lapses where population too poor to maintain same and bishop re- 
 fuses to assist; Bullard v. Shirley, 153 Mass. 560, 12 L. R. A. 112, 27 X. E. 766, 
 holding bequest to town on condition that it support clergyman lapses where town, 
 could not legally support same. 
 Reversion of lapsed devise. 
 
 Cited in Lyman v. Coolidge, 176 Mass. 8, 56 N. E. 831, holding share of devisee 
 dying before testatrix passes as intestate estate where devisee one of class each 
 taking in certain proportion, without survivorship. 
 
 5 L. R. A. 43, MARSTOX v. BIGELOW, 150 Mass. 45, 22 X. E. 71. 
 Action by beneficiary of contract. 
 
 Cited in Borden v. Boardman, 157 Mass. 413, 32 N. E. 469, holding that benefi- 
 ciary in contract to which he is stranger cannot sue obligor; Saunders v. Saun- 
 ders, 154 Mass. 338, 28 N. E. 270, holding that widow cannot sue on covenant by 
 defendant with husband, and "to and Avith such person as may be his wife at time 
 of his decease;" White v. Mt. Pleasant Mills Corp. 172 Mass. 464, 52 N. E. 632, 
 holding that minor, on repudiation of subscription to stock, cannot sue. for money 
 had or received, a new corporation which, under an agreement with the original 
 corporation, has issued its stock to the shareholders of the latter in lieu of the 
 latter's own stock; Knights of Modern Maccabees v. Sharp, 163 Mich. 455, 33 
 L.R.A.(N.S.) 783, 128 N. W. 786, to the point that person who is not party to 
 contract cannot sue upon it at law. 
 
 Cited in notes (25 L. R. A. 260, 268, 272) on right of third party to sue on 
 contract made for his benefit; (43 L. R. A. 472) on parties to contemporaneous 
 agreements, breach of which urged as defense to promissory note; (39 Am. St. 
 Rep. 532) on promise for benefit of third person; (71 Am. St. Rep. 180, 204) 
 on right of third person to sue on contract made for his benefit; (1 Eng. Rul. 
 Cas. 398) on obligation of third person for smaller amount as a satisfaction. 
 
 Distinguished in Aldrich v. Carpenter, 160 Mass. 170, 35 X. E. 456, holding that 
 beneficiary of oral agreement may sue promisor w r here case is tried by stipulation 
 under Rhode Island law: Xash v. Com. 174 Mass. 337, 54 X. E. 865, holding ma- 
 terialman may sue commonwealth for payment under public contract with 
 
789 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 45 
 
 builder, by which moneys for materials are reservable by commonwealth for such 
 
 payment. 
 
 Pretmmption of receipt of letter** duly mailed. 
 
 Cited in Pitts v. Hartford Life & Annuity Ins. Co. 66 Conn. 384, 50 Am. St. Rep. 
 96, 34 Atl. 95, holding presumption of receipt conclusive in absence of evidence 
 to contrary; Conolidated Coal Co. v. Block & H. Smelting Co. 53 111. App. 573, 
 holding that presumption arises though notice required by express contract: Mc- 
 Dowell v. Aetna Ins. Co. 164 Mass. 446, 41 N. E. 665, holding secondary evidence 
 of letters duly mailed admissible, where originals not produced after notice nor 
 evidence of nonreceipt given; Bostain v. De Laval Separator Co. 92 Md. 487, 48 
 Atl. 75, holding it error to charge jury that rejection of offer must be made with- 
 in reasonable time after sending, instead of after receipt, of letter, where no 
 evidence as to length of time of transmission. 
 
 Cited in footnote to Ross v. Hawkeye Ins. Co. 34 L. R. A. 466, which holds 
 notice by registered letter completed by due registration at office from which sent. 
 Receipt of letter. 
 
 Cited in Manitoba Mortg. & Invest. Co. v. Weiss, 18 S. D. 465, 112 Am. St. Rep. 
 799, 101 N. W. 37, 5 A. & E. Ann. Gas. 858, holding that the question as to the 
 receipt of a letter was for the jury, where the evidence was conflicting. 
 
 5 L. R. A. 45, KANSAS CITY LAND CO. v. HILL, 87 Tenn. 589, 11 S. W. 797. 
 Remedies of vendee. 
 
 Cited in Curtis v. Brannon, 98 Tenn. 162. 38 S. W. 1073, holding that vendee 
 cannot recover for breach of covenant of seisin without returning possession of 
 land; McElya v. Hill, 105 Tenn. 329, 59 S. W. 1025, holding evidence of insolvency 
 of vendor competent in bill by vendee to rescind sale of land, since only remedy 
 otherwise is on covenants in deed; Matthews v. Crowder, 111 Tenn. 740, 69 S. W. 
 779, holding where grantors in a deed in fee, with covenant of warranty, have 
 not such title, the grantee, though he has not been evicted, may sue in equity for 
 rescission, where grantor is insolvent. 
 
 Cited in notes (12 L.R.A. 246) on rights and remedies of vendee; (21 L.R.A. 
 (N.S.) 380) on right of grantee in possession to question right of grantor to 
 collect purchase money. 
 AVlm t are vested remainders. 
 
 Cited in Sanders v. Byrom, 112 Tenn. 478, 79 S. W. 1028, holding where an es- 
 tate is conveyed in trust for the benefit of a daughter during her life and then 
 to her children, the estate to the children is a vested estate to the class, but 
 not to any one; Archer v. Jacobs, 125 Iowa, 479, 101 N. W. 195, holding the un- 
 certainty that the remainderman will outlive the life tenant, does not make the 
 remainder contingent. 
 
 Cited in footnotes to Starnes v. Hill, 22 L.R.A. 598, which holds indefeasible 
 fee not vested in one to whom life estate given with estate in fee to his "heirs:" 
 Allison v. Allison, 63 L.R.A. 920, which holds that devise of remainder at death 
 of life tenant to be divided among testator's heirs at law refers to heirs living 
 at testator's death; Bowen v. Hackney, 67 L.R.A. 441, which holds that no estate 
 vests in children until widow's death under will giving life estate to widow and 
 providing that at her death that given to her for life shall be equally divided 
 between all the children, the representatives of those having died to stand in 
 place of ancestors. 
 
 Cited in note (9 L. R. A. 213) on vested remainders. 
 Effect of uncertainty of remaindermen. 
 
 Cited in Rutherford v. Rutherford, 116 Tenn. 388, 115 Am. St. Rep. 799, 92 S. 
 W. 1112, holding there can be no partition among contingent remaindermen. 
 
5 L.R.A. 45] L. R. A. CASES AS AUTHORITIES. 79 
 
 Constructive notice as to title. 
 
 Cited in note (21 Eng. Rul. Cas. 770) on purchaser being affected with con- 
 structive notice of all facts which would have been discovered by requiring usual 
 title. 
 
 5 L. R. A. 52, THE CITY OF CARLISLE, 39 Fed. 807. 
 Care of seaman's injuries during service. 
 
 Cited in Olsen v. The Scotland, 47 C. C. A. 335, 42 Fed. 927, holding vessel 
 liable for failure of master to afford opportunity to reset dislocated shoulder; 
 Whitney v. Olsen, 108 Fed. 297, holding owners of vessel liable for failure of 
 master to proceed to nearest port, where third mate broke leg during voyage. 
 
 Cited in notes (28 L.R.A. 552) on duty of master to furnish medical aid to 
 servant; (31 Am. St. Rep. 806; 4 L.R.A. (N.S.) 72, 77) on duty to provide medi- 
 cal assistance for seaman. 
 Admiralty jurisdiction. 
 
 Cited in Tracey v. The Walter D. Wallet, 66 Fed. 1013, holding libel for dam- 
 ages against British ship by British sailor, determinable by English law, not en- 
 tertained in United States courts; Pouppirt v. Elder Dempster Shipping, 122 Fed. 
 987, sustaining admiralty's jurisdiction of action for personal injuries sustained 
 on high seas; The Ester, 190 Fed. 222, to the point that where special circum- 
 stances exist courts of admiralty will take jurisdiction over controversies be- 
 tween foreign seamen though foreign consul protests. 
 Joinder of causes. 
 
 Cited in The Clan Graham, 153 Fed. 978, holding that actions for personal 
 injury in rem against a vessel, and in personam against the stevedores, though 
 the latter are neither masters nor owners of the vessel, may be joined, where 
 the injury resulted from the negligence of both. 
 
 5 L. R. A. 61, PARKER v. W 7 EST COAST PACKING CO. 17 Or. 510, 21 Pac. 822. 
 Riparian rights. 
 
 Cited in Hanford v. St. Paul & D. R. Co. 43 Minn. 117, 7 L. R. A. 725, 44 N. W. 
 1144, holding riparian right to use of public water extends to any purpose not in- 
 consistent with public right, though not connected with use of navigable water; 
 Mills v. United States, 12 L. R. A. 679, 46 Fed. 743, holding stoppage of flow of 
 canals by reason of elevation of flow of tide, resulting from channel improvements 
 by government, damnum absque injuria as to riparian proprietor; Hobart v. 
 Hall, 174 Fed. 451, on the right to grant riparian rights. 
 
 Cited in notes (40 L. R. A. 602) on right of owner of upland to access to naviga- 
 ble water; (40 L.R.A. 643) on right to erect wharves; (19 Am. St. Rep. 232) 
 on rights of littoral and riparian owners in navigable waters; (20 Am. St. Rep. 
 136) on riparian rights. 
 Who may maintain ejectment. 
 
 Cited in Coquille Mill & Mercantile Co. v. Johnson, 52 Or. 554, 132 Am. St. 
 Rep. 716, 98 Pac. 132, holding that ejectment will not lie for possession of right 
 to continued enjoyment of franchise by riparian owner to operate boom in navi- 
 gable stream. 
 
 Cited in notes (18 L.R.A. 786) on what title or interest will support an action 
 of ejectment; (116 Am. St. Rep. 574, 577, 579) on property or invasion of pos- 
 session for which ejectment is maintainable. 
 Extent of ownership of tidal land. 
 
 Cited in Sage v. New York, 154 N. Y. 78, 38 L. R. A. 613, 61 Am. St. Rep. 592, 
 47 N. E. 1096, holding grant by state of riparian land contains implied reservation 
 
791 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 69 
 
 of right to improve channel for navigation without compensation; Eisenbach v. 
 Hatfield, 2 Wash. 282, 12 L. R. A. 651, 26 Pac. 539 (dissenting opinion), majority 
 holding riparian proprietor has no right to build wharves below high-water mark. 
 
 Cited in footnotes to Webb v. Demopolis, 21 L. R. A. 62, which holds riparian 
 owner's title extends to low-water mark on navigable river; St. Louis, I. M. & S. 
 R. Co. v. Ramsey, 8 L. R. A. 559, which holds title to land under navigable river 
 in state. 
 
 Cited in notes (45 L. R. A. 239) on title to land between high-water and low- 
 water marks; (16 L. R. A. 354) on ownership of flats or land below high-water 
 mark; (12 L. R. A. 677) on title to soil under navigable waters; (8 L. R. A. 91) 
 on littoral owner's right to soil to low-water mark; (12 L. R. A. 633, 636) on 
 qualified property in water front. 
 
 Limited in Bowlby v. Shively, 22 Or. 422, 30 Pac. 154, holding that grantee of 
 land adjoining navigable water by deed from state takes only to high-tide mark, 
 without right to erect wharf upon tidal flats or in waters beyond. 
 Severability of appurtenant rights. 
 
 Cited in Montgomery v. Shaver, 40 Or. 250, 66 Pac. 923, holding wharf rights 
 of riparian owner may be lost through adverse possession of trespasser; Miller 
 v. ^lendenhall, 43 Minn. 102, 8 L. R. A. 94, 19 Am. St. Rep. 219, 44 N. W. 1141, 
 holding grantee of upland lot under plan for development of tidal flat, which 
 cuts off access to channel, cannot maintain suit in equity to set aside deeds of 
 intervening lots; Hanford v. St. Paul & D. R. Co. 43 Minn. 117, 7 L. R. A. 727, 
 44 X. W. 1144, holding condemnation of riparian land by railroad company in- 
 cludes riparian rights, and authorizes construction of right of way so as to 
 obstruct access to upland. 
 
 Cited in footnotes to Gilbert v. Eldridge, 13 L. R. A. 411, which authorizes the 
 severance from upland of riparian right to reclaim land under shallow water; 
 Hanford v. St. Paul & D. R. Co. 7 L. R. A. 722, which authorizes separate transfer 
 of riparian right to improve and reclaim submerged lands. 
 
 Cited in notes (8 L. R. A. 92) on alienation of riparian right; (40 L. R. A. 
 393) on separation of riparian rights from upland. 
 
 5 L. R. A. 66, HOWES v. UNITED STATES, 24 Ct. Cl. 170. 
 Set-off. 
 
 Cited in Labadie v. United States, 33 Ct. Cl. 480, upholding authority of 
 treasury officers to set off indebtedness due from claimant against judgment; 
 Pennebaker v. United States, 29 Ct. Cl. 41, holding treasury percentage regulation 
 allowed to attorney for prosecuting claim not applicable where claimant is in 
 arrears with United States. 
 
 Cited in footnote to Lauraglenn Mills v. Ruff, 49 L. R. A. 448, which denies 
 stockholder's right to set off corporate obligation against liability as shareholder 
 in action at law. 
 Assignment of claims against government. 
 
 Distinguished in Burke v. Davis, 63 Fed. 460, holding judgments against col- 
 lectors for excess of duties not claims against United States within U. S. Rev. 
 Stat. 3477, U. S. Comp. Stat. 1901, p. 2320. 
 
 5 L. R. A. 69, ROMERO v. UNITED STATES, 24 Ct. Cl. 331. 
 Claims for salary by officers de facto. 
 
 Cited in Morey v. United States, 35 Ct. Cl. 605, and Belcher v. United States, 
 34 Ct. Cl. 422. holding legal right of officer to salary depends upon his being an 
 officer de jure; Jackson v. United States, 42 Ct. Cl. 41, holding that legal title 
 
5 L.R.A. G9] L. R. A. CASES AS AUTHORITIES. 792 
 
 to salary attached to office depends upon being de jure an officer; State ex rel. 
 Workman v. Goldthait, 172 Ind. 224, 87 N. E. 133, holding member of tax- ferret 
 commission can not recover for services under the contract, as he was not an 
 officer de jure. 
 
 Cited in note (32 L.R.A. (N.S.) 949) on right of de facto officer to salary. 
 
 5 L. R. A. 71, Re CRAWFORD, 113 N. Y. 560, 21 N. E. 692. 
 
 What constitutes trust. 
 
 Cited in Wadd v. Hazelton, 137 X. Y. 219, 21 L. R. A. 698, 33 Am. St. Rep. 707, 
 33 N. E. 143, holding that assignment of bond and mortgage without delivery 
 does not amount to declaration of trust; Hamer v. Sid way, 57 Hun, 237, 11 N. Y. 
 Supp. 182, holding declaration of trust not disclosed; Von Hesse v. MacKaye, 
 62 Hun, 463, 17 N. Y. Supp. 55, holding valid trust in third person created by 
 donor delivering bonds to trustee whose receipt contains declaration of trust 
 although donor retains control to time of his death ; Phipard v. Phipard, 55 Hun, 
 436, 8 N. Y. Supp. 728, holding that policy of insurance was shown to be held 
 an trust for children by written declaration that it was for their benefit; Cun- 
 ningham v. Davenport, 74 Hun, 55, 26 N. Y. Supp. 322, holding that deposit in 
 one's own name in trust for brother constitutes trust; Re Pilsbury, 51 Misc. 381, 
 99 N. Y. Supp. 62, holding where an indorsement on an envelope containing 
 bonds indicates an intention to make a gift, which fails for want of delivery, 
 the court will not construe the transaction as a trust. 
 
 Cited in footnote to Say re v. Weil, 15 L. R. A. 544, which holds irrevocable a 
 deposit to one's self as trustee for specified children. 
 
 Cited in notes (6 L.R.A. 405) on deposit of fund in trust for another; (34 
 Am. St. Rep. 210, 223) on voluntary trusts arising from declarations of trustor. 
 
 Distinguished in Millard v. Clark, 80 Hun, 151, 29 N. Y. Supp. 1012, holding 
 deposit in name of another subject to control of depositor, coupled with declara- 
 tion of trust, indicate control as that of trustee. 
 What constitutes gift. 
 
 Cited in Richardson v. Emmett, 61 App. Div. 211, 70 N. Y. Supp. 546, holding 
 transfer of stock valid gift; Wadd v. Hazelton, 137 N. Y. 219, 21 L. R. A. 698, 
 33 Am. St. Rep. 707, 33 N. E. 143, holding deposit by father in name of servant 
 aiot gift; Beaver v. Beaver, 137 N. Y. 66, 32 N. E. 998, Reversing 62 Hun, 204, 
 16 N. Y. Supp. 479, holding deposit in son's name not shown to be gift; Hamer 
 v. Sidway, 57 Hun, 234, 11 N. Y. Supp. 182, holding declaration of intention to 
 give does not constitute gift in absence of delivery; Brow T n v. Blackman, 71 Hun, 
 360, 25 N. Y. Supp. 15, holding that assignment and record of bond and mortgage 
 in daughter's name, with receipt by her of amount in full of legacy, evidenced 
 valid gift; Bettinger v. Van Alstine, 79 Hun, 524, 29 N. Y. Supp. 904, holding 
 that deeds executed to parties without consideration, delivered to and recorded 
 by third party, did not amount to gift; Telford v. Patton, 144 111. 627, 33 N. E. 
 1119, holding certificate of deposit in another's name, but retained by depositor, 
 not gift; Liebe v. Battmann, 33 Or. 245, 72 Am. St. Rep. 705, 54 Pac. 180, 
 liolding indorsement of note and placing it in sealed, addressed envelope on table 
 by one about to die does not constitute gift; Beaver v. Beaver, 117 N. Y. 432, 
 C L. R. A. 408, 15 Am. St. Rep. 531, 22 N. E. 940, holding constructive delivery 
 to son of deposit in his name not shown; Williamson v. Johnson, 62 Vt. 381, 
 D L. R. A. 278, 22 Am. St. Rep. 117, 20 Atl. 279, holding gift of money to enable 
 fiancee to prepare for marriage revocable by breaking off of engagement; Re 
 Holmes, 79 App. Div. 266, 79 N. Y. Supp. 592, holding delivery of pass book to 
 one who draws checks on deposit, irrevocable gift; Allen- West Commission Co. 
 r. Grumbles, 129 Fed. 290, holding delivery of assignment of stock, donor retaining 
 
7U3 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 78 
 
 certificates, ineffective; West v. McC'ullough, 123 App. Div. 854, 108 N. Y. Supp. 
 493 (dissenting opinion), on sufficiency of delivery to constitute gift; C^irlon v. 
 Ryan, 73 Misc. 602, 133 N. Y. Supp. 629, holding that indorsement and delivery 
 of note to third person with written instructions to deliver it to certain person 
 upon indorsee's death as gift, constitutes gift on such delivery. 
 
 Cited in footnotes to Williamson v. Johnson, 9 L. R. A. 277, which holds gift 
 to enable fiancee to pay wedding expenses, conditional on marraige; Porter v. 
 Woodhouse, 13 L. R. A. 64, which holds warranty deeds not delivered, by donor 
 giving to third person; Gammon Theological Seminary v. Robbins, 12 L. R. A. 
 506, which holds instrument declaring that holder gives note, insufficient as 
 gift where he retains possession. 
 
 Cited in notes (11 L. R. A. 684) on delivery and retention essential to validity 
 of gift; (21 L. R. A. 693) on undelivered written transfer or assignment of 
 property as a gift; (19 L. R. A. 700) on delivery of bank book to sustain gift of 
 money in bank; (12 Eng. Rul. Cas. 435) on necessity of delivering gift inter 
 vivos. 
 Sufficiency of delivery of deed. 
 
 Cited in Indiana Trust Co. v. Byram, 36 Ind. App. 22, 72 N. E. 670 (dissenting 
 opinion), on the intention of the parties as controlling fact of delivery of instru- 
 ment. 
 Ademption of legacy. " 
 
 Cited in Re Turfler, 1 Power, 408, note, holding that money gift subsequent to 
 execution of will does not adeem pro tanto legacy to daughter. 
 
 Cited in notes (95 Am. St. Rep. 352; 12 L.R.A. 570) on ademption of legacy: 
 (38 L.R.A.(N.S.) 589, 596) on gift by testator as ademption of general legacy 
 to donee. 
 Executor's commissions. 
 
 Cited in Re Emerson, 59 Hun, 247, 12 N. Y. Supp. 788, holding executor en- 
 titled to accounting and discharge, with commissions as such, though also trus- 
 tee; Re Beard, 77 Hun, 113, 28 N. Y. Supp. 305, holding duties of executors 
 and trustees separate, entitling them to double commissions. 
 
 Cited in footnote to Re Rutledge, 47 L. R. A. 721, which sustains surrogate's 
 discretion in withholding commissions from executor neglecting duties. 
 
 5 L. R. A. 78, Re NEAGLE, 14 Sawy. 232, 39 Fed. 833. 
 
 Affirmed in 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658. 
 Jurisdiction of Federal courts. 
 
 Cited in Re Lyman, 55 Fed. 43, holding unlawful ousting of Federal court with 
 its records properly restrained ; Ex parte Jervey, 66 Fed. 959, holding that Fed- 
 eral court has jurisdiction of suit involving dispensary law as an interference 
 with interstate commerce. 
 Habeas corpus. 
 
 Approved in Ex parte Caldwell, 138 Fed. 489, holding the jurisdiction of Fed- 
 eral courts to issue habeas corpus, is co-extensive with the common-law right^ 
 and extends to the release of persons in custody under state laws. 
 
 Cited in Ex parte Ulrich, 43 Fed. 664, holding writ of habeas corpus will not 
 be issued by Federal court where criminal court of state has complete jurisdiction. 
 
 Distinguished in Re Krug, 79 Fed. 310, holding that habeas corpus will not 
 issue to take prisoner from custody of state officers because of faulty indictment ; 
 Re Fox, 51 Fed. 431, holding that writ of habeas corpus will not issue to take 
 prisoner awaiting trial from jail to respond to indictment in Federal court. 
 
5 L.R.A. 78] L. R. A. CASES AS AUTHORITIES. 794 
 
 "VVlieii homicide justifiable. 
 
 Cited in North Carolina v. Kirkpatrick, 142 Fed. 694, holding homicide by 
 .Federal revenue officer in discharge of duty justifiable. 
 
 Cited in notes (6 L.R.A. 425) on right to self-defense; (67 L.R.A. 294, 306) 
 on homicide by official action or by officers of justice; (67 L.R.A. 533) on homi- 
 cide to prevent criminal or unlawful acts. 
 Where court chambers ore. 
 
 Cited in Re Lux, 100 Cal. 601, 35 Pac. 341, holding that inventory of estate 
 of deceased presented to court or judge at chambers is returned; Ex parte Steele, 
 162 Fed. 718, holding that a judge of a court of bankruptcy, who was the judge 
 in two districts could make an order to be entered in the court of either, as to a 
 mere administrative matter, though not present in the court, if he be at the time 
 in either district. 
 
 5 L. R. A. 95, MILNER v. BOWMAN, 119 Ind. 448, 21 N. E. 1094. 
 Iiisurnble interest. 
 
 Cited in Ingersoll v. Knights of Golden Rule, 47 Fed. 275, holding that bene- 
 ficiary in mutual benefit association need not have pecuniary interest in assured; 
 Gordon v. Ware Nat. Bank, 67 L.R.A. 554, 65 C. C. A. 580, 132 Fed. 448, holding 
 assignment of life insurance policy is not void because the assignee had no in- 
 surable interest in the life insured, unless the assignment is made in bad faith; 
 Rylander v. Allen, 125 Ga. 216, 6 L.R.A..(N.S.) 135, 53 S. E. 1032, 5 A. & E. Ann. 
 Cas. 355, holding that one may procure a policy upon his own life and assign it 
 to one who has no insurable interest in the life, provided it is not done as a 
 cover for a wagering policy. 
 
 Cited in footnotes to Opitz v. Karel, 62 L. R. A. 982, holding that woman has 
 insurable interest in life of man she is engaged to; Kurd v. Doty, 21 L. R. A. 
 746, which denies right of trustee receiving proceeds of insurance policy, to refuse 
 payment to beneficiaries as having no insurable interest. 
 
 Cited in notes (25 L.R.A. 627) on right to take life insurance for benefit of 
 stranger; (6 L.R.A.(N.S.) 129) on validity of assignment not made as cover 
 for wager policy of life insurance to one having no insurable interest; (52 Am. 
 St. Rep. 559; 128 Am. St. Rep. 311) on life insurance in favor of persons having 
 no insurable interest. 
 
 Distinguished in Davis v. Brown, 159 Ind. 646, 65 N. E. 908, holding assignee 
 of policy from one procuring it on own life entitled to proceeds. 
 Change of beneficiary. 
 
 Cited in Robinson v. United States Mut. Acci. Asso. 68 Fed. 826, holding bene- 
 ficiary substituted for son and daughter in accident insurance policy, premiums 
 on which have been paid by assured, can maintain action of policy; Anthony T. 
 Massachusetts Ben. Asso. 158 Mass. 324, 33 N. E. 577, holding that assignment 
 of benefit association certificate may be made to sister of member; Kessler v. 
 Kuhns, 1 Ind. App. 518, 27 N. E. 980, holding beneficiary of life policy on life of 
 another cannot assign to his creditor; Nye v. Grand Lodge, A. 0. of U. W. 9 Ind. 
 App. 143, 36 N. E. 429, holding sale of policy for considerably less than its face, 
 the assignee agreeing to keep up premiums, not gambling; Mason v. Mason, 160 
 Ind. 195, 65 N. E. 585, holding beneficiary without claim where new certificate 
 fails to state name; Waldum v. Homstad, 119 Wis. 319, 90 N. W. 806, sustaining 
 claim of new beneficiary though officer failed to make change before insurer's 
 death; Bunyan v. Reed, 34 Ind. App. 301, 70 N. E. 1002, holding that beneficiary 
 under mutual benefit certificate acquires no vested rights therein, until the 
 death of the insxired, and the latter may change the beneficiary, subject only to 
 the limitations fixed by the by-laws. 
 
795 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 100 
 
 Cited in footnotes to McQuillan v. Mutual Reserve Fund Life Asso. 56 L. R. A. 
 233, which sustains right to provide that assigned policy shall be void as to all 
 above debt due assignee; Steele v. Gatlin, 59 L. R. A. 129, which holds complete 
 gift not made by verbal assignment of life policy, accompanied with words indicat- 
 ing intent to give, and delivery of, policy; Simcoke v. Grand Lodge, A. O. of U. 
 W. 15 L. R. A. 114, which holds that granting of new beneficiary certificate pre- 
 cludes question as to sufficiency of attestation to signature to application for 
 change; Clark v. HirschI, 9 L. R. A. 841, which holds beneficiary changed though 
 letter announcing change to association not received till after member's death; 
 Schmidt v. Iowa K. of P. Ins. Asso. 11 L. R. A. 205, which holds indorsement, 
 of benefit certificate, by third person on oral request through third person of 
 member not present at time of indorsement, sufficient change of beneficiary; 
 Luhrs v. Luhrs, 9 L. R. A. 534, which holds failure to formally change bene- 
 ficiaries does not prevent recovery by substituted one; Hinton v. Mutual Reserve 
 Fund L. Asso. 65 L.R.A. 161, which holds insurance company not liable on pol- 
 icy issued to wife of mortgagor and assigned by her to mortgagee as security for 
 the debt. 
 
 Cited in notes (15 L. R. A. 350, 352) on changing designation in benefit cer- 
 tificate otherwise than in prescribed method; (7 L. R. A. 189) on transfer of 
 mutual benefit certificate; (49 L. R. A. 750, 755) on power of insured to destroy 
 rights of beneficiary; (14 Am. St. Rep. 527; 19 Am. St. Rep. 789; 52 Am. St. 
 Rep. 562) on change of beneficiaries in mutual benefit association; (52 Am, St. 
 Rep. 565, 566, 567; 87 Am. St. Rep. 508, 516, 518), on assignment of life insur- 
 ance policies; (25 Am. St. Rep. 264; 52 Am. St. Rep. 570, 571) on distribution 
 of proceeds of mutual or membership life or accident insurance on death of 
 beneficiary before assured. 
 
 Distinguished in Carter v. Carter, 35 Ind. App. 78, 72 N. E. 187, holding that 
 where husband transferred his benefit certificate to his wife under an ante-nup- 
 tial agreement, he could not afterward procure another payable to some other 
 person on the ground that the old was beyond his control. 
 Difference Ix-tween policies and benefit certificates. 
 
 Cited in notes (12 L. R. A. 210) on distinction between mutual benefit certifi- 
 cate and life insurance policy; (9 L. R. A. 189) on forfeiture of benefit certificate 
 for nonpayment of assessment. 
 Review by courts of decisions of benefit societies. 
 
 Cited in note (9 L. R. A. 428) on review by courts of decisions of officers sus- 
 pending member of mutual benefit association. 
 
 5 L. R. A. 100, CHEWACLA LIME WORKS v. DISMUKES, 87 Ala. 344, 6 So. 
 
 122. 
 Powers of corporation. 
 
 Cited in Deaton Grocery Co. v. International Harvester Co. 47 Tex. Civ. App. 
 274, 105 S. W. 556, holding a corporation organized under statute, which merely 
 describes the nature of its business, has power to do such things as are reason- 
 ably necessary to accomplish its purpose; Gulf Yellow Pine Lumber Co. v. Chap- 
 man, 159 Ala. 417. 48 So. 662, holding a corporate authority to buy and sell 
 goods and purchase for cash or credit, was ancilliary to its main business of 
 lumbering, and did not authorize it to buy or sell for another, or become a 
 surety for him. 
 Ultra Aires contracts. 
 
 Cited in Simmons v. Troy Iron Works, 92 Ala. 428, 9 So. 160, holding machinery 
 company cannot engage in ice business; Arrington v. Savannah & W. R. Co. 95 
 
5 L.R.A. 100] L. R. A. CASES AS AUTHORITIES. 796 
 
 Ala. 437, 11 So. 7, holding power to construct branch road not given by charter, 
 governed by statutes; Steiner v. Steiner Land & Lumber Co. 120 Ala. 140, 26 
 So. 494, holding unanimous consent of stockholders will not empower corporation 
 to engage in unauthorized business; Adams & W. Co. v. Deyette, 8 S. D. 128, 31 
 L. R. A. 501, 59 Am. St. Rep. 751, 65 N. W. 471, holding purchase by corporation 
 of its own stock, wholly without authority, ultra vires; Powell v. Murray, 3 
 App. Div. 276, 38 N. Y. Supp. 233, holding purchase by manufacturing company 
 of right to sell product of another company, ultra vires ; Xorthside R. Co. v. 
 Worthington, 88 Tex. 570, 53 Am. St. Rep. 778, 30 S. W. 1055, holding that com- 
 pany may exercise implied powers incidental to business, and no more; Southern 
 Mut. Aid Asso. v. Boyd, 145 Ala. 174, 41 So. 164, holding a mutual benefit asso- 
 ciation organized to pay benefits for sickness and death, has no authority to issue 
 policies making part of assessments returnable at certain times, less the bene- 
 fits paid; Southern Mut. Aid Asso. v. Cobb, 60 Fla. 211, 53 So. 505, on right of 
 corporation to plead ultra vires where it has received benefits under contract. 
 Actions to enforce ultra vires contracts. 
 
 Cited in Long v. Georgia P. R. Co. 91 Ala. 521, 24 Am. St. Rep. 931, 8 So. 
 706, holding court of equity will not rescind or grant relief against ultra vires 
 contract; First Nat. Bank v. Winchester, 119 Ala. 171, 72 Am. St. Rep. 904, 
 24 So. 351, holding ultra vires note and mortgage executed by corporation as 
 surety not enforceable against it; Cleveland School Furniture Co. v. Greenville, 
 146 Ala. 564, 41 So. 862, holding that the retention and use of school furniture 
 did not estop the city from pleading the defense of ultra vires; First Nat. Bank 
 v. Henry, 159 Ala. 398, 49 So. 97 (dissenting opinion), on the defense of ultra 
 vires. 
 Corporate taxation. , 
 
 Cited in note (64 L. R. A. 56) on taxation of manufacturing corporations in 
 United States. 
 
 5 L. R. A. 102, MATTHEWS v. DIXEY, 149 Mass. 595, 22 N. E. 61. 
 Party Trails. 
 
 Cited in Walker v. Stetson, 162 Mass. 88, 44 Am. St. Rep. 350, 38 N. E. 18, 
 holding party wall owner not liable for addition by adjoining owner strengthen- 
 ing lower portion; Normille v. Gill, 159 Mass. 428, 38 Am. St. Rep. 441, 34 X. 
 E. 543, holding builder of party wall cannot make windows to be used until 
 neighbor builds; Barry v. Edlavitch, 84 Md. 113, 33 L. R. A. 296, 35 Atl. 170, 
 holding prescriptive right to use wall limited to height used; Negus v. Becker, 
 72 Hun, 482, 25 N. Y. Supp. 640, holding party wall agreement gives right to 
 extend wall for whole length of line; Fleming v. Cohen, ]86 Mass. 328, 104 Am. 
 St. Rep. 572, 71 N. E. 563, holding the easement of support afforded by a party 
 wall is not confined to the original buildings, but extends to new buildings that 
 may be erected, and either proprietor may repair at any time. 
 
 Cited in footnotes to Barry v. Edlavitch, 33 L. R. A. 294, which holds ease- 
 ment acquired by possession, in party wall appurtenant to estate; Harber v. 
 Evans, 10 L. R. A. 41, which authorizes injunction against making openings in 
 party wall ; Everett v. Edwards, 5 L. R. A. 110, which upholds equal rights of 
 both owners to use, but not to weaken, addition to party wall ; Putzell v. Drovers' 
 
 6 M. Nat. Bank, 22 L. R. A. 632, which upholds right to remove boundary wall 
 for erection of better wall; Clemens v. Speed, 19 L. R. A. 240, which denies to 
 party wall owners easement from support of buildings ; Swift v. C'alnan, 37 L. 
 R. A. 462, which sustains right to recover on agreement to pay half of expense 
 of party wall on using same; Burr v. Lamaster, 9 L. R. A. 637. which holds 
 party wall, and agreement to pay for same on using it, an encumbrance; Motfe 
 
797 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 104 
 
 v. Oppenheimer, 17 L. R. A. 409, which construes as running with the land agree 
 nient for party wall expressly declared to run with land; Lincoln v. Burrage, 52 
 L. R. A. 110, .which holds grantee's promise to pay p.irt of cost of party wall 
 when used not run with land. 
 
 Cited in notes (7 L.R.A. 649) on use of party wall; (20 L.R.A.(X.S.) 387; 14 
 Am. St. Rep. 468) on right to build upon and increase height of party wall; (66 
 L.R.A. 679, 683, 691, 706) on enfoVcement of obligation to contribute to cost 
 of party walls, by or against grantees or successors in title; (89 Am. St. Rep. 
 931, 940) on party walls. 
 
 5 L. R. A. 104, BULLARD v. CHANDLER, 149 Mass. 532, 21 N. E. 951. 
 
 Application by trustees as to their duty to give bonds in Bullard v. Atty. Gen. 
 153 Mass. 250, 26 N. E. 691. 
 "What are charitable gifts. 
 
 Cited in Weber v. Bryant, 161 Mass. 403, 37 N. E. 203, holding bequest for 
 benevolent or charitable purposes, public or private, creates public charity : 
 Darcy v. Kelley, 153 Mass. 437, 26 N. E. 1110, holding bequest for poor relief 
 fund, public charity; Haynes v. Carr, 70 N. H. 481, 49 Atl. 638, holding charit- 
 able bequest vesting expenditure in trustees' discretion valid; Murdock v. Bridges. 
 91 Me. 134, 39 Atl. 475, holding trust in fund to be distributed as trustee thinks 
 best, not charitable, and invalid: Troutman v. De Boissiere Odd Fellows' Orphans' 
 Home (Kan.) 5 L,R.A.(N.S.) 698, 64 Pac. 33, holding bequest in trust for the 
 purpose of creating a home for the orphans of deceased members of a fraternal in- 
 surance society designated, was a charitable gift; Re Distribution of Funds, 27 
 Montg. Co. L. Rep. 188, holding that charity may be public charity, although ad- 
 ministered by private hand. 
 
 Cited in footnotes to Kelly v. Nichols, 19 L. R. A. 413, as to what constitutes- 
 charitable use or trust; Crerar v. Williams, 21 L. R. A. 454, which holds gift 
 of free public library in great city charitable; Re Sellers Chapel M. E. Church, 
 11 L. R. A. 282, which holds trust for charitable use created by conveyance to 
 trustees for erection of church; Adams Female Academy v. Adams, 6 L. R. A. 
 785, which authorizes use for public school of fund bequeathed to establish 
 "female academy;" Bird v. Merklee, 27 L. R. A. 423, which holds bequest to 
 churches to buy coal for poor, direct gift to churches; Woman's Foreign Mission- 
 ary Soc. v. Mitchell, 53 L. R. A. 711, which holds legacy to board of managers 
 of Foreign Missionary Society of M. E. Church properly paid to Woman's For- 
 eign Missionary Society. 
 
 Cited in notes (7 L. R. A. 766; 13 L. R. A. 218) on power of municipality to 
 take and administer property in trust for charitable uses; (11 L. R. A. 214) 
 on authority of trustees of religious corporations; (4 L. R. A. 699) on gift of 
 fund to be maintained; (63 Am. St. Rep. 263) on what are charitable uses or 
 trusts. 
 Indefiniteness of charitable gifts. 
 
 Cited in Fox v. Gibbs, 86 Me. 94, 29 Atl. 940, holding bequest for "benevolent 
 and charitable purposes" not void for indefiniteness; Woodroof v. Hundley, 147 
 Ala. 292, 39 So. 907. holding a charitable gift definite and valid, where it was 
 for the purpose of aiding young men studying for the ministry in a designated 
 Protestant denomination or one to be selected by the executors, the men to be 
 selected by them also; Minot v. Atty. Gen. 189 Mass. 180, 75 N. E. 149, holding 
 that bequest to such persons or corporations as the executors might choose or to 
 persons whom he had overlooked, was too indefinite and the whole trust void; 
 Selleck v. Thompson, 28 R. I. 355, 67 Atl. 425, holding that where testatrix di- 
 
5 L.R.A. 104] L. R. A. CASES AS AUTHORITIES. 79&' 
 
 reeled her executors to designate the beneficiaries of a charitable trust, it was 
 sufficiently definite. 
 
 Cited in footnotes to People v. Powers, 35 L. R. A. 502, which holds trust to 
 dispose of property among such charitable and benevolent institutions as trustee 
 shall choose void for indefiniteness; Harrington v. Pier, 50 L. R. A. 307, which 
 holds bequest for promotion of temperance work in certain city not fatally in- 
 definite; People ex rel. Atty. Gen. v. Dashaway Asso. 12 L. R. A. 117, which 
 holds promotion of cause of temperance too vague description of purpose for 
 which corporation formed; Thompson v. Brown, 62 L.R.A. 398. which upholds 
 devise of fund to be distributed by executor "to the poor" in his discretion. 
 
 Cited in notes (12 L.R.A. 415) on bequests held void for uncertainty; (4 L.R.A. 
 700) as to when gifts sufficiently definite; (14 L.R.A. (N.S.) 68, 71, 91) on en- 
 forcement of general bequest for charity or religion; (5 Eng. Rul. Cas. 578) on: 
 invalidity of charitable bequests for indebtedness. 
 Testamentary trust; ly whom administered. 
 
 Cited in White v. Massachusetts Inst. of Technology, 171 Mass. 96, 50 N. E. 
 512, holding where no trustee of bequest of use of money appointed, executor 
 acts; Boston v. Doyle, 184 Mass. 382, 68 N. E. 851, holding that equity will- 
 appoint other trustees when board of selectmen ceases to exist; Grant v. Saunders, 
 121 Iowa, 88, 95 N. W. 411, sustaining court's power to appoint trustee in place 
 of one named in will; Payne v. Robinson, 26 App. D. C. 287, 6 A. & E. Ann. Cas. 
 784, holding gift of interest was not gift of principal, but executor held the latter 
 in trust. 
 Rule of statutory construction. 
 
 Cited in Com. v. Kelley, 177 Mass. 223, 58 N. E. 691, holding exception in act. 
 regulating sale of liquor confined to last antecedent. 
 Recognition of foreign lawa. 
 
 Cited in note ( 10 L. R. A. 767 ) on comity in recognizing foreign laws. 
 Disherison. 
 
 Cited in note (11 L. R. A. 768) on disherison by will. 
 Requested instructions by trustee. 
 
 Cited in Peabody v. Tyszkiewicz, 191 Mass. 322, 77 N. E. 839, holding that 
 under a petition for instructions a court is not bound to give them as to future 
 contingencies; Polsey v. Newton, 199 Mass. 456, 85 N. E. 574, 15 A. & E. Ann. 
 Cas. 139 (dissenting opinion), on the same point; Sibley v. Maxwell, 203 Mass. 
 307, 89 N. E. 232, holding that on a bill for instruction, an executor is entitled 
 to instructions only as to his present duties, and not as to accounts, questioned 
 but not yet allowed by Probate Court. 
 Moot questions. 
 
 Cited in Hall v. Cogswell, 183 Mass. 523, 67 N. E. 644, holding that court 
 refuses to consider moot questions; Searls v. Charitable Baptist Soc. 30 R. I. 480, 
 76 Atl, 160, holding that trustee cannot maintain suit for construction of will 
 where the questions propounded may never arise. 
 
 5 L. R. A. 110, EVERETT v. EDWARDS, 149 Mass. 588, 14 Am. St. Rep. 462, 
 
 22 N. E. 52. 
 Party walls. 
 
 Cited in Walker v. Stetson, 162 Mass. 88, 44 Am. St. Rep. 350, 38 N. E. 18; 
 Tate v. Fratt, 112 Cal. CIS, 44 Pac. 1061; Matthews v. Dixey, 149 Mass. 599, 
 5 L. R. A. 103, 22 N. E. 61 ; Carlton v. Blake, 152 Mass. 179, 23 Am. St. Rep. 
 818, 25 N. E. 83, holding part owner of party wall has right to increase its 
 height; Fidelity Lodge, No. 59, I. 0. 0. F. v. Bond, 147 Ind. 443, 45 N. E. 340,, 
 
799 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 115 
 
 restraining continuance of party wall with windows for exclusive use of builder^ 
 Normille v. Gill, 159 Mass. 428, 38 Am. St. Rep. 441, 34 N. E. 543, holding part 
 owner of party wall cannot, against objection, leave openings for windows; 
 Bright v. Allan, 203 Pa. 397, 93 Am. St. Rep. 769, 53 Atl. 251, and Barry v. 
 Edlavitch, 84 Md. 113, 33 L. R. A. 296, 35 Atl. 170, holding prescriptive right 
 to use wall on another's land limited to extent used; Fleming v. Cohen, 186- 
 Mass. 326, 104 Am. St. Rep. 572, 71 N. E. 563, on the right of support from 
 party wall; Bellenot v. Laube, 104 Va. 847, 52 S. E. 698, holding either proprie- 
 tor of a party wall may increase the height of the wall for the purpose of using 
 it in constructing new building. 
 
 Cited in footnotes to Matthews v. Dixey, 5 L. R. A. 102, which upholds right 
 to use and extend party wall erected by adjoining owner; Burr v. Lamaster, 
 9 L. R. A. 637, which holds party wall, and agreement to pay for same on using 
 it, an encumbrance; Harber v. Evans, 10 L. R. A. 41, which authorizes injunction 
 against making openings in party wall; Clemens v. Speed, 19 L. R. A. 240, which 
 denies to party wall owners reciprocal easement from support of buildings; 
 Putzell v. Drovers' & M. Nat. Bank, 22 L. R. A. 632, which upholds right to 
 remove boundary wall for erection of better wall. 
 
 Cited in notes (7 L.R.A. 649) on use of party wall; (20 L.R.A. (X.S.) 387) oa 
 right to raise height of party wall; (89 Am. St. Rep. 926, 931, 932), on party 
 walls. 
 Prevention of acts in derogation of property rights. 
 
 Cited in Stewart v. Finkelstone, 206 Mass. 35, 28 L.R.A.(N.S.) 636, 138 Am. 
 St. Rep. 370, 92 N. E. 37, holding that mortgagee of land may sue in equity to- 
 prevent injuries to property by violation of restrictive covenants. 
 
 Cited in note (123 Am. St. Rep. 302) on intervention by lienholders. 
 
 5 L. R. A. 115, BIGGS v. McBRIDE, 17 Or. 640, 21 Pac. 878. 
 Time of taking effect of emergency statute. 
 
 Cited in Bennett Trust Co. v. Sengstacken, 58 Or. 344, 113 Pac. 863, holding- 
 that bill containing emergency clause and providing that it will become law on 
 governor's approval, becomes effective in five days if not returned by governor,- 
 unless general adjournment prevents such return. 
 
 Cited in note (13 Am. St. Rep. 739) on time of taking effect of emergency- 
 statute on passage of governor's veto. 
 Power of appointment to public office. 
 
 Cited in State ear rel. Wagner v. Compson, 34 Or. 27, 54 Pac. 349, and Eddy 
 v. Kincaid, 28 Or. 557, 41 Pac. 158, upholding act vesting in legislature power to- 
 appoint railroad commissioners; State ex rel. Sherman v. George. 22 Or. 150, 
 16 L. R. A. 740. 29 Am. St. Rep. 586, 29 Pac. 358, upholding statute providing 
 for appointment by court of bridge committee; State ex rel. Standish v. Boucher, 
 3 N. D. 395, 21 L. R. A. 544, 56 N. W. 142, holding appointing power does not, in 
 absence of constitutional provision, reside in governor; Atty. Gen. ex rel. May- 
 bury v. Bolger, 128 Mich. 360, 87 N. W. 366. holding act providing for appoint- 
 ment of park commissioner by council constitutional; Pratt v. Breckinridge, 112. 
 Ky. 13, 65 S. W. 136, denying legislative power to appoint election commis- 
 sioners; Purnell v. Mann, 105 Ky. 118, 50 S. W. 266 (dissenting opinion), ma- 
 jority holding act providing for selection of county election commissioners by 
 commission appointed by legislature constitutional ; State ex rel. Yancey v. 
 Hyde, 121 Ind. 41. 22 N. E. 644 (dissenting opinion), majority holding legislature 
 cannot fill vacant state office: Southern P. Co. v. Bartine, 170 Fed. 746, hold- 
 ing that all power of appointment is not impliedly vested in the governor, where 
 the constitution is silent on that matter; Richardson v. Young. 122 Tenn. 4! : - 
 
5 L.R.A. 115] L. R. A. CASES AS AUTHORITIES. 800 
 
 S. W. (i64, to the point that power of appointment to office is political power and 
 may be vested in either department of government. 
 Removal of public officer. 
 
 Cited in State ex rel. Atty. Gen. v. Johnson. 30 Fla. 483, 18 L. R. A. 416, 11 
 So. 845, and Knox County v. Johnson, 124 Ind. 153, 7 L. R. A. 687, 19 Am. St. 
 Rep. 88, 24 N. E. 148, holding officer not removable for cause without hearing; 
 State ex rel. "Hitchcock v. Hewitt, 3 S. D. 195, 16 L. R. A. 417, 44 Am. St. Rep. 
 788, 52 N. W. 875, and State ex rel. Hastings v. Smith, 35 Neb. 33, 16 L. 
 R. A. 797, 52 N. W. 700, holding officer appointed for definite term not removable 
 without hearing; Shurtleff v. United States, 189 U. S. 314, 47 L. ed. 831, 23 
 Sup. Ct. Rep. 535, upholding President's removal of appraiser of merchandise; 
 Hagerty v. Shedd, 75 N. H. 396, 139 Am. St. Rep. 725, 74 Atl. 1055, holding that 
 statute authorizing removal of municipal officer for cause means for legal cause 
 after notice and hearing. 
 
 Cited in notes (16 Am. St. Rep. 648) on removal of officers by governor; (40 
 Am. St. Rep. 45) on removal from office. 
 Constitutional law ; construction. 
 
 Cited in Detroit v. Chapin, 108 Mich. 143, 37 L. R. A. 398, 66 N. W. 587, hold- 
 ing contemporaneous construction of Constitution entitled to great weight. 
 Scope of legislative power. 
 
 Cited in Travelers' Ins. Co. v. Oswego Twp. 7 C. C. A. 678, 19 U. S. App. 321, 
 59 Fed. 67, holding right to determine manner of issuing township bonds vested 
 in legislature; Thompson v. State, 56 Fla. Ill, 47 So. 816, on the authority of 
 the legislature under the constitution to determine when an emergency exists to 
 make statutes effective immediately; Kadderly v. Portland, 44 Or. 149, 74 Pac. 
 710, holding that the question as to whether a law is necessary within the initia- 
 tive and referendum clause of the constitution is for the legislature; Oklahoma 
 City v. Shields, 22 Okla. 303, 100 Pac. 559, on the same point. 
 Mandamus, when issnanle. 
 
 Cited in Lynde v. Dibble, 19 Wash. 330, 53 Pac. 370, holding title to office not 
 triable by mandamus; Caffrey v. Caffrey, 28 Pa. Super. Ct. 25, holding manda- 
 mus will not lie in favor of a person claiming the office of school director, where 
 there is another person in the office and recognized by the other members. 
 
 Cited in footnotes to Territorial Insane Asylum v. Wolfley, 8 L. R. A. 188, 
 which denies mandamus to compel governor to sign warrant for funds for asy- 
 lum; People ex rel. Daley v. Rice, 14 L. R. A. 644, which authorizes mandamus 
 to compel canvassing board to disregard illegal return; People ex rel. Corscad- 
 den v. Howe, 66 L.R.A. 664, which holds that mandamus will lie to compel pay- 
 ment by county treasurer of salary of superintendent of county penitentiary 
 whom commissioners have attempted to remove from office under invalid statute 
 during time he retains possession of the office. 
 
 Cited in note (98 Am. St. Rep. 885) on mandamus as proper remedy against 
 public officers. 
 
 5 L. R. A. 121, TAYLOR v. STREET, 82 Ga. 723, 9 S. E. 829. 
 Estoppel of ufiiniiir or heirs. 
 
 Cited in Equitable Mortg. Co. v. Butler, 105 Ga. 561, 31 S. E. 395, holding 
 grantor may be estopped as to purchasers without notice, by procuring record- 
 ing of deed, from denying delivery. 
 
 Cited in note (28 Am. St. Rep. 34) on estoppel of heirs. 
 
 Distinguished in Thornton v. Ferguson, 133 Ga. 829, 134 Am. St. Rep. 226, 67 
 S. E. 97, holding that estoppel in pais on account of misrepresentations by own- 
 
801 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 120 
 
 er of land to induce another person to extend credit upon it and accept a mort- 
 gage from another person, will not affect a subsequent grantee who was a bona 
 fide purchaser. 
 Harmless erroneous instruction*. 
 
 Cited in Charleston & S. R. Co. v. Green, 95 Ga. 366, 22 S. E. 540, holding that 
 verdict being only one proper, errors in instructions to jury immaterial. 
 Delivery of deed. 
 
 Cited in footnotes to Strough v. Wilder, 7 L. R. A. 555, which holds possession 
 prima facie evidence of delivery of deed; Cook v. Patrick, 11 L. R. A. 573, which 
 holds delivery of deed to third person paying for property sufficient delivery to 
 grantees; Robbins v. Rascoe, 38 L. R. A. 238, which holds delivery of deed to 
 natural child, to deputy clerk of court, with instructions for proving it, passes 
 title. 
 
 Cited in note (13 L. R. A. 677) on essentials to validity of deed. 
 
 5 L. R. A. 122, READ v. MOSBY, 87 Tenn. 759, 11 S. W. 940. 
 Assignment of future contingent interest. 
 
 Cited in Glenn v. Burns, 100 Tenn. 301, 45 S. W. 784, holding contingent in- 
 terest under life insurance policy transmissible; Hale v. Hollon, 90 Tex. 430, 
 36 L. R. A. 77, 59 Am. St. Rep. 819, 39 S. W. 287, holding conveyance of expect- 
 ancy, not in fraud of creditors, valid; Gore v. Howard, 94 Tenn. 582, 30 S. W. 
 730. holding heir apparent relinquishing expectancy to ancestor for value estopped 
 to contest will: Taylor v. Swafford, 122 Tenn. 307, 25 L.R.A.(N.S.) 443, 123 S. 
 W. 350, holding a contract of sale of the expectancy of an heir sui juris will be 
 sustained in equity, if fair and honest. 
 
 Cited in footnotes to Wiant v. Hays, 23 L. R. A. 82, which holds right to excess 
 of proceeds of land sold on forfeiture of nonentry on assessor's books, assignable; 
 Erickson v. Brookings County, 18 L. R. A. 347, which holds assignable right of 
 xmrchaser at unlawful tax sale to have money refunded. 
 
 Cited in notes (33 L.R.A. 276) on validity of sale of expectancy by prospective 
 heir; (56 Am. St. Rep. 349; 24 Eng. Rul. Cas. 769, 773) on validity and en- 
 forceability of assignment of expectancy. 
 
 .-> L. R. A. 126, SEYMOUR v. CUMMINS. 119 Ind. 148, 21 N. E. 549. 
 Liability of city assuming duty, for negligent performance. 
 
 Cited in Lenzen v. New Braunfels, 13 Tex. Civ. App. 366, 35 S. W. 341, holding 
 city liable for negligent failure to supply water to extinguish fire; Valparaiso 
 v. Adams, 123 Ind. 252, 24 N. E. 107, holding city not using reasonable care in 
 adopting plan for grading liable to landowner injured. 
 
 Cited in footnotes to Huffmire v. Brooklyn, 48 L. R. A. 421, which sustains 
 city's liability for destruction of oysters by sewage cast on beds; Miles v. Wor- 
 cester, 13 L. R. A. 841, which holds city liable for encroachment by retaining wall 
 on filling schoolyard; Long v. Elberton, 46 L. R. A. 428, which denies liability of 
 city to neighboring property owners for erection of prison within city limits, 
 unless so negligently maintained as to constitute nuisance; Snider v. St. Paul, 
 18 L. R. A. 151, which holds city not liable for negligence of agents in providing 
 and maintaining city hall. 
 
 Cited in notes (7 L.R.A. 156, 157) on liability of municipality for creation of 
 nuisance; (65 L.R.A. 752) on liability for acts of independent contractor where 
 injury is direct result of work contracted for; (30 Am. St. Rep. 380) on liability 
 of cities for negligence and other misconduct of officers and agents; (76 Am. St. 
 Rep. 417. 419. 420) on liability for negligence and torts of independent con- 
 L.R.A. Au. Vol. I. 51. 
 
5 L.R.A. 126] L. R. A. CASES AS AUTHORITIES. 802 
 
 tractors, (16 Eng. Rul. Gas. 628) on liability of officers for permitting or failing 
 to abate nuisance. 
 As to seTveru. 
 
 Cited in Kolb v. Knoxville, 111 Tenn. 315, 76 S. W. 823, holding accumulations 
 of garbage and foul smelling substances constituted a nuisance, though caused 
 by sewer out of repair. 
 
 Cited in footnotes to Nevins v. Fitchburg, 47 L. R. A. 312, which denies city's 
 right to discharge sewer into tailrace; Hughes v. Auburn, 46 L. R. A. 636, 
 which denies city's liability for disease due to neglect of proper sanitary precau- 
 tions as to sewer system; Williams v. Greenville, 57 L. R. A. 207, which denies 
 city's liability for sickness, etc., from permitting filth from drainage ditch to flow 
 on adjoining land; Price v. Oakfield Highland Creamery Co. 24 L. R. A. 333, 
 which authorizes injunction against allowing filth to flow from creamery to 
 adjoining premises; Uppington v. New York, 53 L. R. A. 550, which denies city's 
 liability for failure to select best possible route, or adopt best possible plan, for 
 sewer. 
 
 Cited in notes (7 L. R. A. 465) on damages recoverable for negligent construc- 
 tion of sewer; (61 L. R. A. 685, 706, 711) on duty and liability of municipality 
 with respect to drainage; (29 Am. St. Rep. 647, 738, 739, 742) on municipal 
 liability for defects in and want of repair of sewers. 
 Right to divert surface water. 
 
 Cited in footnotes to Johnson v. Chicago, St. P. M. & 0. R. Co. 14 L. R. A. 
 495, which authorizes diversion of surface water; Paddock v. Somes, 10 L. R. A. 
 255, holding one liable for collecting water into artificial channels and casting 
 it upon neighbor's land. 
 Abatement of action. 
 
 Cited in Pennsylvania Co. v. Davis, 4 Ind. App. 54, 29 N. E. 425, holding 
 action for negligently causing child's death does not abate on father's death; 
 Union Sav. Bank & T. Co. v. Western U. Teleg. Co. 79 Ohio St. 98, 128 Am. St. 
 Rep. 675, 86 N. E. 478, holding action for trespass to realty may be revived in 
 the name of the executor or administrator of deceased plaintiff. 
 Appeal; v. lint revlewable. 
 
 Cited in Pittsburgh, C. C. & St. L. R. Co. v. Indiana Horseshoe Co. 154 Ind. 
 324, 56 N. E. 766, and Dudley v. Pigg, 149 Ind. 369, 48 N. E. 642, holding rulings 
 on motion, not part of record, not considered; Thomas v. Griffin, 1 Ind. App. 
 459, 27 N. E. 754, holding bill of exceptions tiled after close of term, on leave, 
 will not embrace motions upon framing issues. 
 
 5 L. R. A. 130, UNITED STATES v. KOCH, 40 Fed. 250. 
 Trade-marks and trade-names. 
 
 Cited in footnotes to Carsons v. Ury, 5 L. R. A. 614, which authorizes injunc- 
 tion against counterfeit of union label ; Chadwick v. Covell, 6 L. R. A. 839, which 
 holds grantee from other than exclusive owner of trade-mark to medicine made 
 according to secret recipes not entitled to use by others. 
 
 Cited in notes (5 L. R. A. 599) on trade-marks under United States statutes; 
 (6 L. R. A. 823) on trade-name and trade-mark; (9 L. R. A. 147) on when prop- 
 erty in trademark attaches; (25 L.R.A.(X.S.) 475) on validity of penal statute 
 to protect trademarks. 
 
 5 L. R. A. 132, LOUISVILLE, N. O. & T. R. CO. v. STATE, 66 Miss. 662, 2 Inters. 
 
 Com. Rep. 615, 14 Am. St. Rep. 599, 6 So. 203. 
 
 Affirmed in 133 U. S. 587, 33 L. ed. 784, 2 Inters. Com. Rep. 801, 10 Sup. Ct. 
 Rep. 348. 
 
803 L. E. A. CASES AS AUTHORITIES. [5 L.R.A. 137 
 
 Civil rinlit of negroes. 
 
 Cited in Plessy v. Ferguson, 163 U. S. 548, 41 L. ed. 259, 16 Sup. Ct. Rep. 1138, 
 Affirming 45 La. Ann. 85, 18 L. R. A. 642, 11 So. 948, upholding act requiring 
 separable or separate cars for white and black races; Anderson v. Louisville & 
 N. R. Co. 62 Fed. 50, upholding act requiring separate cars for whites and blacks; 
 Chesapeake & O. R. Co. v. Kentucky, 179 U. S. 391, 45 L. ed. 246, 21 Sup. Ct. 
 Rep. 101, holding separable coach act for blacks and whites valid as to state pas- 
 sengers; Chilton v. St. Louis & I. M. R. Co. 114 Mo. 93, 19 L. R. A. 271, 21 S. 
 W. 457, holding negress may be removed from ladies' car when she has seat 
 offered in equally commodious and comfortable car; State ex rel. Abbott v. Hicks, 
 44 La. Ann. 775, 11 So. 74, holding act requiring train officials to assign passen- 
 gers according to color, invalid as applied to interstate passenger; State v. 
 Treadaway, 126 La. 313, 139 Am. St. Rep. 514, 52 So. 500, 20 Ann. Cas. 1297, to 
 the point that word "colored" in statute is used to designate negroes proper and 
 persons of mixed negro blood. 
 
 Cited in footnote to Cecil v. Green, 32 L. R. A. 566, which holds drug store 
 where soda water sold not place of accommodation and amusement within civil 
 rights act. 
 
 Cited in notes (18 L.R.A. 641) on rights of colored passengers; (25 Am. St. 
 Rep. 876) on 14th amendment as to special privileges, burdens and restrictions 
 founded on race; (45 L. ed. U. S. 245) on separate coach acts. 
 Application of state statutes to Interstate commerce. 
 
 Cited in McCabe v. Atchison, T. & S. F. R. Co. 109 C. C. A. 110, 186 Fed. 973, 
 to the point that state statute regulating carrying of white and colored passen- 
 gers within state does not interfere with interstate commerce; State ex rel. Cole- 
 man v. Western U. Teleg. Co. 75 Kan. 624, 90 Pac. 299, holding that provision of 
 statute requiring any foreign corporation, as a condition precedent to doing busi- 
 ness within the state, to perform certain acts, does not apply to companies 
 doing wholly interstate business. 
 
 Cited in notes (27 Am. St. Rep. 568) on state regulation of interstate com- 
 merce; (62 Am. St. Rep. 291) on state regulation of rates as interference with 
 interstate commerce. 
 
 5 L. R. A. 135, THIXGVALLA LINE v. UNITED STATES, 24 Ct. Cl. 255. 
 Jurisdiction of claims dependent on treaty. 
 
 Cited in Hayes v. United States, 44 Ct. Cl. 498, holding that section 1066, Re- 
 vised Statutes, forbidding jurisdiction of claims dependent on treaty, does not 
 apply to cases transmitted under Bowman Act. 
 Treaty guaranties to aliens. 
 
 Cited in note (16 L.R.A. 277) on treaty guaranties to aliens. 
 
 5 L. R. A. 137, HAXGEX v. HACHEMEISTER, 114 N. Y. 566, 11 Am. St. Rep. 
 
 691, 21 N. E. 1046. 
 Retention of ponseNslon or sale of goods by pledgeor or mortgagor 
 
 Cited in Spurr v. Hall, 46 App. Div. 457, 61 N. Y. Supp. 854, holding chattel 
 mortgage not fraudulent because a little nay, covered by mortgage, by consent 
 of mortgagee was fed to mortgaged horses; 13osliart v. Kirley 34 Misc. 246, 69 
 N. Y. Supp. 623, holding that facts disclosed intention that mortgagor should 
 remain in possession of chattels in fraud of creditors; Hardt v. Deutsch, 30 App. 
 Div. 591, 52 X. Y. Supp. 335, holding that mortgagee may retain possession of 
 property under voidable mortgage voluntarily delivered by mortgagor; Hardt v. 
 Deutsch, 22 Misc. 68, 48 X. Y. Supp. 564, holding agreement that mortgagor may 
 sell mortgaged chattels in course of trade, without applying proceeds to debt, 
 
5 L.R.A. 137] L. R. A. CASES AS AUTHORITIES. 804 
 
 voids mortgage; Hedges v. Polhemus, 9 Misc. 681, 30 X. Y. Supp. 006, holding 
 reservation in chattel mortgage of right to use some tilings mortgaged, involving 
 their consumption, voids mortgage; Wise v. Rider, 68 N. Y. S. R. 718, 34 N. Y. 
 Supp. 782, holding sales made by chattel mortgagor for a few days, in absence of 
 evidence of agreement with mortgagee, does not render mortgage void ; Jackson 
 v. Kincaid, 4 Okla. 579, 46 Pac. 587, holding pledge invalid unless possession 
 taken by pledgee; Sparks v. Brown, 46 Mo. App. 538, holding evidence of agree- 
 ment to allow mortgagor to retain and sell mortgaged chattels admissible; Vree- 
 land v. Pratt, 42 N. Y. S. R. 583, 17 N. Y. Supp. 307, holding unfiled chattel 
 mortgage vaiid as against creditors in absence of agreement that mortgagor was 
 to remain in possession; Re Filley, 47 N. Y. S. R. 434, 20 N. Y. Supp. 427, 1 
 Power 239, discussing requirement of bond covering property alleged to be fraud- 
 ulently conveyed by executor; Wise v. Rider, 68 N. Y. S. R. 717, 34 X. Y. Supp. 
 782, holding validity of chattel mortgage to secure valid debt not affected by in- 
 validity of prior mortgages; Re Carpenter, 125 Fed. 835, holding secret condi- 
 tional purchase of goods for resale invalid as against trustee of bankrupt ven- 
 dee; Skillen v. Endelman, 39 Misc. 263, 79 X. Y. Supp. 413, holding mortgage 
 invalidated by secret understanding that mortgagor may dispose of property; 
 Pontiac Buggy Co. v. Skinner, 158 Fed. 868, on the invalidity of chattel mort- 
 gages giving mortgagor right to sell for his own benefit; Re Hartman, 185 Fed. 
 200, holding that chattel mortgage with provision permitting mortgagor to sell 
 goods and to use proceeds for support of family and to replenish stock, is void 
 as to creditors; Citizen's State Bank v. Brown, 110 Minn. 180, 124 N. W. 990, 
 holding a chattel mortgage void as a matter of law as to creditors where there was 
 a tacit agreement that the mortgagor could at any time sell the property and 
 apply the proceeds to his own benefit; Zartman v. First Xat. Bank, 189 N. Y. 
 273, 12 L.R.A.(X.S.) 1086, 82 N. E. 127, Affirming 109 App. Div. 409, 96 X. Y. 
 Supp. 633, holding provision in a chattel mortgage allowing mortgagor to sell 
 for his own benefit, rendered the mortgage void as a matter of law as to credit- 
 ors; Skilton v. Codington, 185 X. Y. 90, 113 Am. St. Rep. 885, 77 X. E. 790, hold- 
 ing chattel mortgage void as a matter of law, where it gave the mortgagor the 
 power to sell the goods and apply them in satisfaction of the mortgage, except 
 that he should be entitled to a certain amount of the proceeds to aid in re- 
 plenishing stock. 
 
 Cited in footnote to Marks v. Miller, 14 L. R. A. 190, which holds presumption 
 >i fraud for retention of chattels covered by unrecorded mortgage not conclusive. 
 
 Cited in notes (18 L. R. A. 609) on effect on validity of mortgage of merchan- 
 dise, of provision or agreement giving mortgagor possession with power of sale; 
 (23 L.R.A. 477) on sale or mortgage of future crops; (15 Am. St. Rep. 914; 35 
 L. ed. U. S. 172) on effect of permission to chattel mortgagor to retain posses- 
 sion and sell chattels. 
 
 Distinguished in Re Perlhefter, 177 Fed. 304, holding that a chattel mortgage 
 was not void as a matter of law though the mortgagor had the right to sell, 
 where he was to apply the proceeds on the payment of the mortgage; Glover v. 
 Ehrlich, 62 Misc. 248, 114 X. Y. Supp. 992, holding that where there was no 
 .agreement that the mortgagor could sell for his own benefit, the fact that he 
 retained possession with right to sell for mortgagee's benefit did not render the 
 mortgage void. 
 Rig-lit of administrator to avoid fraudulent conveyance of ilecedent. 
 
 Cited in footnote to Blackman v. Baxter, 70 L.R.A. 250. which sustains right 
 of general creditors of insolvent estate to attack through administrator chattel 
 mortgage not recorded before mortgagor's death, under statute making mort- 
 gage invalid, where mortgagor retains possession of chattels. 
 
805 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. UI 
 
 Cited in note (135 Am. St. Rep. 333) on right of administrator to avoid fraud- 
 ulent conveyance of decedent. 
 Proof of valae of property. 
 
 Cited in Devlin v. Xew York, 4 Misc. 100. 24 X. Y. Supp. 116, holding evidence 
 of what overcoat, lost in bathing establishment, cost, sufficient to establish value 
 at time of loss; Bowdish v. Page. 81 Hun, 177. 30 N. Y. Supp. 691, holding evi- 
 dence of price at which goods sold competent in action for conversion; Rhein- 
 feldt v. Dahlman, 19 Misc. 168, 43 N. Y. Supp. 281, holding price paid for article 
 some evidence of its value: Waterman v. American Pin Co. 19 Misc. 040. 44 X. 
 Y. Supp. 410, holding cost price sufficient upon which to base judgment as to 
 value; Bini v. Smith. 36 App. Div. 466, 55 N. Y. Supp. 822, holding cost of prop- 
 erty insured some evidence of its value at time of loss; Kyd v. Cook, 56 Xeb. 76, 
 71 Am. St. Rep. 661, 76 X. W. 524, holding damages for loss of credit recoverable; 
 Smith v. Mine & S. Supply Co. 32 Utah, 30, 88 Pac. 683, holding that evidence 
 of the cost price of household goods was admissible to aid in determining the 
 actual value. 
 
 Cited in notes (30 Am. St. Rep. 39) on adinissibility of nonexpert opinions as 
 to value of property; (31 Am. St. Rep. 734) on mode of proving value of rail- 
 road property. 
 Exclusion of irrelevant evidence. 
 
 Cited in State v. Marcks, 140 Mo. 677, 43 S. W. 1095, holding irrelevant evi- 
 dence may be excluded before final submission to jury. 
 Exception to admission of evidence. 
 
 Cited in Kissinger v. Staley, 44 Xeb. 786, 63 N. W. 55, holding motion to strike 
 out irresponsive evidence should be made and exception taken to refusal ; Wilson 
 v. Boasberg, 1 Misc. 437, 21 N. Y. Supp. 915, holding general exception to evi- 
 dence, without motion thereafter to strike out testimony, presented no question 
 on appeal: Caldwell v. State, 50 Fla. 8, 39 So. 188, holding that in order to re- 
 view an exception to evidence previously given there must have been a motion 
 to strike out or to direct jury to disregard the same, which was refused and 
 excepted to. 
 
 Cited in note (8 L. R. A. 608) as to when exceptions to ruling must be taken. 
 Loss of credit as damages. 
 
 Cited in Tootle v. Kent, 12 Okla. 689, 73 Pac. 310, holding loss of credit an 
 element of damages for wrongfully closing store under mortgage. 
 
 5 L. R. A. 141, WILSOX v. FIXE, 40 Fed. 52. 
 
 Power of land department to cancel pre-emption certificates. 
 
 Cited in American Mortg. Co. v. Hopper, 48 Fed. 48, holding Land Depart- 
 ment cannot of its own authority cancel pre-emption law final certificate; 
 Northern P. R. Co. v. Barnes, 2 X. D. 373, 51 X. W. 386, holding proper home- 
 stead entry indefeasible except on pre-emptors default; Bash v. Cascade Min. Co. 
 29 Wa-h. 54. 09 Pac. 402. holding that certificate stands in place of patent. 
 
 Cited in notes (9 L.R.A. 777) on homestead on public land; (75 Am. St. Rep. 
 881) on right of entryman to notice and hearing before cancelation of entry. 
 
 Distinguished in German Ins. Co. v. Hayden, 21 Colo. 13S. 52 Am. St. Rep. 
 200. 40 Pac. 453, upholding cancelation of entry by Land Department, land not 
 being subject to entry. 
 
 Disapproved in Pierce v. Frace, 2 Wash. 92, 26 Pac. 194. and Parsons v. Venzke. 
 4 X. D. 470. 50 Am. St. Rep. 669, 61 X. W. 1036. holding Land Department has 
 power to cancel entry cfrtillcate: Am-ri<-an Mortg. Co. v. Hopper, 12 C. C. A. 294, 
 29 U. S. App. 12, 64 Fed. 554. Affirming 56 Fed. 69, upholding Land Department's 
 
5 L.K.A. 141] L. R. A. CASES AS AUTHORITIES. 806 
 
 power to cancel pre-emption certificate, where entry is fraudulently made, though 
 final certificate issued. 
 
 5 L. R. A. 143, DUNDAS v. LANSING, 75 Mich. 499, 13 Am. St. Rep. 457, 42 
 
 N. W. 1011. 
 Municipal liability for defective sidewalk. 
 
 Cited in footnotes to Shelby v. Clagett, 5 L. R. A. 606, which holds that ex- 
 haustion of corporate funds does not relieve from liability for injury by defective 
 sidewalk; Teagar y. Flemingsburg, 53 L. R. A. 791, which holds mere building 
 of step in sidewalk not negligence rendering city liable for injury to pedestrians; 
 Harden v. Jackson, 66 L.R.A. 986, which holds plank sidewalk not so unsafe as 
 to render city liable to one falling thereon because his cane goes through, al- 
 though the edges of planks have become so decayed as not to withstand pressure 
 of cane. 
 
 Cited in notes (10 L. R. A. 737) on duty of municipality to keep streets and 
 sidewalks in safe condition; (19 L. R. A. 454) on distinction between public and 
 private functions of municipal corporations in respect to liability for negligence; 
 (103 Am. St. Rep. 282; 20 L.R.A.(N.S-) 665, 698, 708, 719) on liability of munic- 
 ipality for defects or obstructions in streets. 
 Evidence of declarations a* to injuries. 
 
 Cited in Jones v. Portland, 88 Mich. 605, 16 L. R. A. 440, 50 N. W. 731, holding 
 statement by injured person to attending physician as to cause, inadmissible; 
 Huron Printing & Bindery Co. v. Kittleson, 4 S. D. 525, 57 N. W. 233, holding 
 declarations admissible where part of the transaction; Fallon v. Rapid City, 17 
 S. D. 577, 97 N W. 1009, holding statements made to the plaintiff's mother after 
 the accident that the former had injured her foot was not competent evidence as 
 a part of the res gestae. 
 
 Cited in note (20 Am. St. Rep. 518) on. hearsay evidence as to injuries. 
 Evidence admissible as part of res grestnte. 
 
 Cited in Drake Coal Co. v. Croze, 165 Mich. 125, 130 N. W. 355, holding that 
 letter written by party after time contract is alleged to have been made is not 
 admissible to corroborate such party as to what contract was. 
 
 Cited in note (16 Am. St. Rep. 22, 407) on what constitutes res gestae. 
 Physician's opinion of cause. 
 
 Cited in Jones v. Portland, 88 Mich. 605, 16 L. R. A. 440, 50 N. W. 731, holding 
 testimony of physician as to cause of injuries inadmissible; Lyon v. Grand 
 Rapids, 121 Wis. 620, 99 N. W. 311, holding that a question to a physician as to 
 what caused a particular diseased condition of plaintiff, basing his opinion on 
 the fact that she had testified truly, was not reached by the objection that it was 
 incompetent, and did not prevent him from going outside the field of scientific 
 knowledge. 
 Wotice of defects in hiuh wi> y. 
 
 Cited in Fuller v. Jackson, 82 Mich. 484, 46 N. W. 721, holding knowledge by 
 street commissioner or alderman notice to city of defect in walk ; Platz v. McKean 
 Twp. 178 Pa. 611, 36 Atl. 136, holding notice to supervisor, notice to township 
 of highway defect; Cunningham v. Thief River Falls, 84 Minn. 25, 86 N. W. 763, 
 "holding notice to mayor of defect in street, notice to city; Miller v. Mullan, 17 
 Idaho, 43, 104 Pac. 660, on the sufficiency of notice to munic : pality of defective 
 condition of sidewalk; McEvoy v. Sault Ste. Marie, 136 Mich. 175, 98 N. W. 1006, 
 liolding actual notice to superintendent of streets is notice to the city of defec- 
 tive condition of streets; Nothdurft v. Lincoln, 66 Neb. 440, 96 N. W. 163, hold- 
 
807 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 143 
 
 ing that notice of defective sidewalk must be established by evidence and can- 
 not be left to mere conjecture or inference of the jury. 
 
 Cited in footnote to Cleveland v. Payne, 70 L.R.A. 841, which holds policeman's 
 knowledge of defect in street not such notice to city as to make it responsible 
 for damages resulting from defect. 
 
 Cited in notes (10 L.R.A. 738) on notice of defect in sidewalk; (30 Am. St. 
 Rep. 525) on notice of defects in streets. 
 
 Distinguished in Fuller v. Jackson. 92 Mich. 205, 52 N. W. 1075 holding actual 
 notice of general broken and unsafe condition of piece of sidewalk, notice of 
 particular defects. 
 Notice of claim for injnry. 
 
 Cited in Dollar v. Marquette, 123 Mich. 192, 82 N. W. 36, requiring council to 
 act on notice of claim for injury duly presented, without demanding as con- 
 dition appearance with witnesses before council. 
 
 Cited in note (10 L. R. A. 739) on presentation of claims for damages from 
 defective sidewalk. 
 Evidence of other defects. 
 
 Cited in Tice v. Bay City, 78 Mich. 210, 44 N. W. 52, holding evidence of 
 defective condition of walk at other places beyond defect causing injury, inad- 
 missible. 
 
 Distinguished in Boyle v. Saginaw, 124 Mich. 350, 82 N. W. 1057, holding 
 evidence of condition of walk in close proximity to defect causing injury, com- 
 petent to charge city with notice; Campbell v. Kalamazoo, 80 Mich. 660, 45 X. W. 
 G52, holding evidence of defective condition of entire walk before premises com- 
 petent to show notice to, and negligence of, city, where exact place of accident not 
 alleged. 
 Contributory negligence. 
 
 Cited in Engel v. Smith, 82 Mich. 7, 21 Am. St. Rep. 549, 46 N. W. 21 ; Colum- 
 bus v. Strassner, 124 Ind. 487, 25 N. E. 65 ; Becker v. Detroit Citizens' Street R. 
 Co. 121 Mich. 586, 80 N. W. 583, all holding question of contributory negligence 
 for jury when testimony conflicting or facts doubtful; Brezee v. Powers, 80 
 Mich. 183, 45 N. W. 130, holding contributory negligence for jury when to be 
 determined by inference from facts and circumstances about which honest, in- 
 telligent, and impartial men might differ; Graves v. Battle Creek, 95 Mich. 272, 
 19 L. R. A. 643, 35 Am. St. Rep. 561, 54 X. W. 757, holding excuse for nonatten- 
 tion for jury where plaintiff could have seen defect, but became frightened and 
 hurried on just before stumbling; Vergin v. Saginaw, 125 Mich. 502. 84 X. \V. 
 1075, holding person not necessarily negligent in stepping into hole in walk, 
 filled with snow and ice, where defect not in mind at time, although known; 
 Sias v. Reed City, 103 Mich. 314, 61 X'. W. 502, holding person knowing of 
 defect in walk and watching for it not precluded from recovery for injuries when 
 reaching it sooner than expected; Chicago v. Fitzgerald, 75 111. App. 179, holding 
 lor jury question of ordinary care in use, after dark, of sidewalk known to 
 have defect, which was discovered too late to be avoided ; Finn v. Adrian, 93 Mich. 
 507, 53 X. \V. 614, holding knowledge of street being repaved, and crosswalk par- 
 tially torn up eight days before, not sufficient to charge with contributory negli- 
 gence in attempting to cross on dark night; Schwingschlegl v. Monroe, 113 Mich. 
 85, 72 X. \Y. 7, holding familiarity with unsafe condition of sidewalk will not 
 preclude recovery, if caution of prudent man used; Haines v. Lake Shore & 
 M. S. R. Co. 129 Mich. 484, 89 X. W. 349, holding one who stopped 75 feet from 
 track to look and listen, not guilty of negligence; Styles v. Decatur, 131 Mich. 
 448, 91 X. \V. 622, holding it question for jury whether contributory negligence 
 
5 L.R.A. 343] L. R. A. CASES AS AUTHORITIES. 808 
 
 to pass over walk knowing boards to be loose; Ramsay v. C. K. Eddy & Sons, 
 123 Mich. 164, 82 N. W. 129 (dissenting opinion), majority holding brakeiuan 
 switching in daytime guilty of contributory negligence in being caught by pro- 
 jecting boards, visible if he looked; Carson v. Genesee, 9 Idaho. 240. 108 Am. St. 
 Rep. 127, 74 Pac. 862, holding previous knowledge of defective condition of high- 
 wav is not per se evidence of negligence in person in using same; Belyea v. Port 
 Huron, 136 Mich. 507, 99 X. W. 740, holding that a man is not precluded from 
 recovering for personal injuries because he used a sidewalk which he knew to be 
 in a defective condition, if he used such care as the danger required from a pru- 
 dent man; Hodge v. St. Louis, 146 Mich. 180, 109 X. W. 252 (dissenting opinion), 
 on the use of defective sidewalk with notice of its condition, as contributory 
 negligence; Scharman v. Bay County Bridge Commission. 158 Mich. 82, 122 X. W. 
 1098, holding that bicyclist riding off unguarded end of open drawbridge in dark 
 is not negligent, as matter of law. 
 
 Cited in footnote to Wheat v. St. Louis, 64 L.R.A. 292, which holds that one 
 attempting to turn horse and milk wagon around in vicinity of manhole which 
 he knows projects above the surface of the street, guilty of contributory negli- 
 gence. 
 
 Cited in notes (10 L. R. A. 740) on contributory negligence as defense for 
 injury from defective sidewalk; (13 L. R. A. 729) as to determination by jury of 
 question of negligence; (16 L.R.A.(X.S.) 464) on negligence in attempting to 
 cross, after dark, defective or obstructed street; (17 L.R.A.(X.S.) 200) on negli- 
 gence in falling on uneven sidewalk; (21 L.R.A.(X.S.) 638, 640) on contributory 
 negligence as affecting municipal liability for defects and obstructions in streets. 
 
 Distinguished in Irion v. Saginaw, 120 Mich. 298. 79 X. W. 573, holding that- 
 pedestrian cannot recover for injury from defective sidewalk, where, knowing of 
 defect in walk, and of necessity of care, he chances safety without necessity: 
 Benedict v. Port Huron, 124 Mich. 605, 83 X. W. 614, holding momentary forget- 
 fulness of conditions not excuse for failure to act on information thereof; Cloney 
 v. KalamazoOj 124 Mich. 660, 83 X. W. 618, holding one approaching crossing 
 known to be torn up, and when sufficiently lighted to observe, guilty of contribu- 
 tory negligence in walking off walk without looking; King v. Colon Twp. 125 
 Mich. 515, 84 N. W. 1077, holding girl fourteen years old, knowing of hole 
 in highway, guilty of contributory negligence when, if looking, she would have 
 seen it. 
 As question for the jury. 
 
 Cited in McCormick v. Detroit, G. H. & M. R. Co. 141 Mich. 21, 104 X. W. 390 r 
 holding that the question of contributory negligence was for the jury, in action 
 for personal injuries, by reason of defective condition of station platform where 
 plaintiff knew of the defective condition; Wiens v. Ebel, 69 Kan. 704, 77 Pac. 553. 
 holding contributory negligence was for the jury in action for personal injuries 
 sustained while using street known to be in a defective condition: Hunter v. 
 Durand, 137 Mich. 50, 100 X. W. 191, holding same where plaintiff knew of 
 defective condition of a sidewalk, but knew some repairs had been made; Branch 
 v. Klatt, 165 Mich. 671, 131 N. W. 107, holding that question of contributory 
 negligence was for jury where person leaving theater in dark fell down an un- 
 expected step. 
 
 Distinguished in Tracey v. South Haven Twp. 132 Mich. 496, 93 X. W. 1065, 
 holding that where there was no care at all the court could say that there was not 
 due care. 
 A ;i 1:1 isxi Itilil y of testimony to impeach party's own witness. 
 
 Cited in Western U. Teleg. Co. v. Xorthcutt, 158 Ala. 561, 132 Am. St. Rep. 
 
09 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 152 
 
 38, 48 So. 553, holding plaintiff could not ask his own witness a question for the 
 
 purpose of impeaching the latter's credit, where testimony contradicted his own. 
 
 Cited in note (82 Am. St. Rep. 63) on impeachment of party's own witness. 
 
 5 L. R. A. 150, COLLAMORE v. GILLIS, 149 Mass. 578, 14 Am. St. Rep. 460, 
 
 22 N. E. 46. 
 Fixtures, what are. 
 
 Cited in filler v. Waddingham (Cal.) 11 L. R. A. 511, 25 Pac. 688, holding 
 permanent building on mudsills by vendee under land contract, fixture; Re New 
 York City (Re Improvement of Water Front) 192 N T . Y. 302, 18 L.R.A.(X.S.) 
 426, 127 Am. St. Rep. 903, 84 N. E. 1105, holding that anything that was capable 
 of being removed from the premises, without substantial injury to the freehold 
 was not a fixture, as between tenant and landlord. 
 
 Cited in footnotes to Leonard v. dough, 16 L. R. A. 306, which holds a barn 
 placed by owner on own land or which stands resting on surface a fixture; 
 Demby v. Parse, 12 L. R. A. 87, which holds buildings erected by third person 
 on land in life tenant's possession not removable against remainderman's objec- 
 tion. 
 
 Cited in notes (6 L.R.A. 249, 10 L.R.A. 723, 724; 12 Eng. Rul. Cas. 226) on 
 what constitutes fixtures. 
 Fixture**; rights of landlord and tenant. 
 
 Cited in Baker v. McClurg, 198 111. 34, 59 L. R. A. 133, footnote p. 131, 92 
 Am. St. Rep. 261, 64 N. E. 701, Affirming 96 111. App. 171, which sustains tenant's 
 right to remove as trade fixtures, ovens and engine boilers placed by him in 
 bakery building with intent to remove; John P. Squire & Co. v. Portland, 106 
 Me. 240, 30 L.R.A. (X.S.) 580, 76 Atl. 679, 20 Ann. Cas. 603, holding that fixture 
 can be removed by tenant only when it will cause no material injury to premises. 
 
 Cited in footnotes to Wright v. Du Bignon, 57 L. R. A. 669, which denies 
 right of tenant to remove fixtures annexed by him to freehold; Sanitary Dist. v. 
 Cook, 39 L. R. A. 369, which denies right to remove, after new lease expires, 
 trade fixtures erected by tenant; Western & A. R. Co. v. State, 14 L. R. A. 438, 
 which holds railroad lessee not entitled to substitute old rails and appliances at 
 end of term; Radey v. McCurdy, 67 L.R.A. 359, which holds insertion in renewal 
 lease of provision entitling tenant to remove trade fixtures not necessary to en- 
 able him to remove such fixtures before termination of extended period; Bergh 
 v. Herring-Hall-Marvin Safe Co. 70 L.R.A. 756, which holds boilers, engines, 
 shafting, and heating apparatus placed in building by tenant to carry on busi- 
 ness therein and capable of easy removal without injury to building removable 
 as trade fixtures. 
 
 Cited in notes (9 L.R.A. 700) on tenant's right to remove fixtures; (18 L.R.A. 
 (N.S.) 424) on tenant's right to remove trade fixtures as dependent upon re- 
 movability without injury to themselves. 
 
 Xot followed in Hertzberg v. Witte, 22 Tex. Civ. App. 321, 54 S. W. 921, hold- 
 ing taking new lease does not defeat tenant's right to remove buildings reserved 
 in old lease. 
 
 5 L. R. A. 152. PAGE v. HIGGIXS, 150 Mass. 27, 22 N. E. 63. 
 Mitttnke, when relief obtainable. 
 
 Cited in Corbett v. Craven, 196 Mass. 321, 82 X. E. 37, holding that the mistake 
 which is the ground for equitable relief, must be a mutual mistake and not of 
 one: Eustis Mfg. Co. v. Saco Brick Co. 198 Mass. 218, 84 X. E. 449, holding that 
 where by a mistake of fact the instrument does not set forth correctly the r >n- 
 tract, equity will reform it so that it will; Tourtillotte v. Tourtillotte, 205 Mass. 
 
6 L.R.A. 152] L. E. A. CASES AS AUTHORITIES. 810 
 
 552, 91 N. E. 909, to the point that mutual mistake in deed may be corrected in 
 equity. 
 
 Annotation cited in Allen v. Kitchen, 16 Idaho, 148, L.R.A. (N.S.) , 100 
 Pac. 1052, holding court of equity has no authority to reform contract not suf- 
 ficient within the statute of frauds; Errett v. Wheeler, 109 Minn. 165, 26 L.R.A. 
 (N.S.) 820, 123 N. W. 414, on the right to relief in equity because of mistake 
 of law. 
 
 Cited in footnotes to Bigham v. Madison, 47 L. R. A. 267, which authorizes 
 rescission for mutual mistake as to location of boundary lines pointed out by 
 vendor; Alton v. First Nat. Bank, 18 L. R. A. 144, which denies indorsee's right 
 to recover back amount paid under mistaken belief as to liability; Langevin v. 
 St. Paul, 15 L. R. A. 766, which holds agent's mistaken belief that all of lots 
 jointly sold for taxes belonged to principal not ground to recover back any of 
 redemption money; Och v. Missouri, K. & T. R. Co. 36 L. R. A. 442, which holds 
 release by woman while dazed and nervous from shock in railway accident binding 
 on her, though obtained by misrepresenting contents. 
 
 Cited in notes (12 L. R. A. 273) on equity jurisdiction to correct mistakes in 
 contracts"; (6 L. R. A. 835) on remedies in case of mistake in written instrument; 
 (17 L. R. A. 273) on parol evidence to vary written contract in case of fraud, 
 surprise, or mistake; (11 L. R. A. 857) on mistake in written contract; relief 
 from; (5 L.R.A. 712) on reformation of insurance policy; (28 L.R.A. (N.S.) 844, 
 845, 849, 897) on relief from mistake of law as to effect of instrument; (55 Am. 
 St. Rep. 515) on ignorance of one's rights as a ground of relief; (117 Am. St. 
 Rep. 231, 242) on mistakes for which written instruments may be canceled or 
 corrected in equity. 
 Reformation of deeds. 
 
 Cited in Loud v. Barnes, 154 Mass. 345, 28 N. E. 271, holding deed cannot be 
 reformed unless mistake common to all parties; Richardson v. Adams, 171 Mass. 
 449, 50 N. E. 941, holding proof of mistake must be clear, full and decisive; 
 Robinson v. Braiden, 44 W. Va. 192, 28 S. E. 798, holding misdescription in deed, 
 working no injury, not ground for reformation. 
 
 Cited in footnotes to Atherton v. Roche, 55 L. R. A. 591, which denies powei 
 to reform deed to daughter and husband and "their" heirs, so as to include all 
 heirs of her body; Davis v. Ely, 5 L. R. A. 810, which holds admissible parol 
 evidence that part of land to be conveyed was fraudulently omitted; Decker v. 
 Schulze, 27 L. R. A. 335, which holds mere breach of covenant as to title not 
 ground for rescinding executed sale of land. 
 
 Cited in note (65 Am. St. Rep. 490) on reformation of contracts. 
 
 5 L. R. A. 161, COMMERCIAL U. TELEG. CO. v. NEW ENGLAND TELEPH. 
 
 & TELEG. CO. 61 Vt. 241, 15 Am. St. Rep. 893, 17 Atl. 1071. 
 Equality in public UN-.-; compnlNory service. 
 
 Cited in Haugen v. Albina Light & Water Co. 21 Or. 423, 14 L. R. A. 428, 28 
 Pac. 244, holding corporation organized to supply city and inhabitants with 
 water must furnish to all applicants, although no stipulation thereto in fran- 
 chise; Inter-Ocean Pub. Co. v. Associated .Press, 184 111. 452, 48 L. R. A. 574, 
 75 Am. St. Rep, 184, 56 N. E. 822, holding press association's by-law against 
 members' furnishing news to, or receiving news from, any person or corporation 
 declared antagonistic, void; Delaware & A. Teleg. & Teleph. Co. v. Delaware, 30 
 W. N. C. 371, holding telegraph and telephone companies subject to the rules 
 governing common carriers; Godwin v. Carolina Teleph. & Teleg. Co. 136 N. C. 
 259, 67 L.R.A. 252, 103 Am. St. Rep. 941, 48 S. E. 636, 1 A. & E. Ann. Cas. 203; 
 State ex rel. Goodwine v. Cadwallader, 172 Ind. 635, 87 N. E. 644, holding a 
 
811 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 166 
 
 telephone a public carrier of news which must furnish impartial service to all the 
 public alike; Home Teleph. Co. v. Granby & X. Teleph. Co. 147 Mo. App. 228, 126 
 S. W. 773, holding that telephone companies are under obligation to furnish im- 
 partial service. 
 
 Cited in notes (31 L. R. A. 804) on police regulation of electric companies; 
 (15 L. R. A. 321) as to compulsory service by party whose business it is to serve 
 the public; (6 Eng. Rul. Cas. 452) on invalidity of contracts in restraint of trade; 
 (7 Eng. Rul. Cas. 463) on right to compel public service corporation to perform 
 its obligations and to refrain from exceeding its powers. 
 
 Distinguished in Kates v. Atlanta Baggage & Cab Co. 107 Ga 649, 46 L. R. A. 
 437, 34 S. E. 372, holding railway company may grant exclusive privilege of 
 entering trains to solicit transportation of passengers and baggage, and rent to 
 such licensee portion of depot. 
 Public use of patent. 
 
 Cited in Delaware & A. Teleg. & Teleph. Co. v. Delaware, 2 C. C. A. 45, 3 U. S. 
 App. 30, 50 Fed. 681, 30 W. N. C. 371, holding patent applied to public use 
 becomes subject to legal regulation in such use; Delaware ex rel. Postal Teleg. 
 & Cable Co. v. Delaware & A. Teleg. & Teleph. Co. 47 Fed. 638, holding that 
 upon offering patent to public use, patentee cannot contract to restrict use for 
 particular purpose to licensee. 
 
 Cited in note (29 L. R. A. 792) on power of state to restrict and regulate the 
 sale or enjoyment of patent rights. 
 When ma n <ly m ii- will issue. 
 
 Cited in footnotes to Territorial Insane Asylum v. Wolfley, 8 L. R. A. 188, 
 which denies mandamus to compel governor to sign warrant for funds for asylum; 
 Hangen v. Albina Light & Water Co. 14 L. R. A. 424, which holds mandamus 
 appropriate remedy to compel supply of water. 
 
 Cited in notes (7 L. R. A. 105) on mandamus to enforce public duty; (11 L. 
 R. A. 763) as to issuance of mandamus to control executive discretion. 
 
 5 L. R. A. 166, ANDERSON v. BUTLER, 31 S. C. 183, 9 S. E. 797. 
 Purchase, etc., by trustee, etc., at own sale. 
 
 Cited in Fishburne v. Smith, 34 S. C. 333, 13 S. E. 525, holding sale invalid 
 where representative of mortgagee withdrew bid at suggestion of trustee, and 
 thereafter property was sold to same bidder for less sum; Scottish-American 
 Mortg. Co. v. Clowney, 70 S. C. 240, 49 S. E. 569, 3 A. & E. Ann. Cas. 437, holding 
 where a trustee having power of sale for reinvestment executes a deed to his 
 wife, the deed is voidable at the option of the beneficiaries; Marquam v. Ross, 
 47 Or. 405, 83 Pac. 852, holding a trust company with a lien upon the mortgaged 
 premises, may purchase at the foreclosure sale under the trust deed, to protect 
 its lien. 
 
 Cited in footnotes to Frazier v. Jeakins. 57 L. R. A. 575, which holds guardian's 
 sale to her husband, void; Harrison v. Mulvane, 54 L. R. A. 405, which holds 
 one charged with selling corporate stock to pay encumbrances, one of which he 
 owns, not forbidden, as trustee, to buy prior liens to protect own interests. 
 
 Cited in notes (9 L. R. A. 792) on purchase of trust property by trustee; 
 (13 L.R.A. 492) on effect of purchase by trustee; (136 Am. St. Rep. 808) on who 
 may not purchase at judicial, execution, or other compulsory sales because so 
 doing may conflict with their duties. 
 Execution of power under will. 
 
 Cited in Ashley v. Holman, 55 S. C. 131, 32 S. E. 992, holding that courts may 
 control execution of limited power by declaring execution contrary to limitations 
 
5 L.R.A. 166] L. R. A. CASES AS AUTHORITIES. 812 
 
 imposed invalid; Rose v. Thornley. 33 S. C. 323. 12 S. E. 11, holding that under 
 will directing sale in discretion of executor courts cannot, at instance of dis- 
 tributees, require sale to be made by master; Rice v. Coleman. 87 S. C. 340, 69 
 S. E. 516, Ann. Cas. 1912 B, 1016, holding that legatees and devisees cannot 
 enjoin sale of realty by executors having unlimited powers, though court might 
 differ as to wisdom of sale. 
 
 5 L. R. A. 172, YVIXXT v. INTERNATIONAL & G. N. R. CO. 74 Tex. 32, 11 
 
 S. W. 907. 
 Exemplary damagres in cases of negligence. 
 
 Cited in Gulf, C. & S. F. R. Co. v. Compton, 75 Tex. 674, 13 S. W. 667, holding 
 running of water train without conductor not such wilful neglect of duty as to 
 warrant recovery, when trains so run for year without accident. 
 
 Distinguished in Sternenberg v. Mailhos, 39 C. C. A. 413, 99 Fed. 48, holding 
 absence of ground for exemplary damages not ground for peremptory instruction 
 for defendant, when evidence supports claim for actual damages. 
 Damages for negligent act cansing death. 
 
 Cited in Houston City Street R. Co. v. Sciacca, 80 Tex. 355, 16 S. W. 31, holding 
 recovery for death of minor child not limited to services during minority, but 
 may extend to benefits after majority: Galveston, H. & S. A. R. Co. v. Hughes, 
 22 Tex. Civ. App. 139, 54 S. W. 264, holding that measure of damages for 
 killing son is sum equal to pecuniary benefit plaintiffs had reasonable expectation 
 of receiving; International & G. N. R. Co. v. Kuehn, 2 Tex. Civ. App. 217, 21 
 S. W. 58, holding that measure of damages for causing death of father is what 
 child can reasonably expect to receive during probable duration of life, and not 
 cost of raising child. 
 
 Cited in footnote to Brink v. Wabash R. Co. 53 L. R. A. 811, which denies 
 right to recover for nonperformance of contract to support parent through negli- 
 gent killing of son. 
 
 Cited in notes (7 L. R. A. 154) on action for damages for death caused by 
 negligence; (17 L. R. A. 77) on measure of recovery for death caused by negli- 
 gence; (16 Am. St. Rep. 248) on measure of damages for death of child: (70 Am. 
 St. Rep. 679) on actions for death of human being. 
 When damage presumed. 
 
 Cited in Haug v. Great Northern R. Co. 8 N. D. 35, 42 L. R. A. 673, 73 Am. 
 St. Rep. 727, 77 N. W. 97, holding pecuniary damage presumed to widow and 
 minor children from death of husband and father; Gulf, C. & S. F. R. Co. v. Hall. 
 34 Tex. Civ. App. 542, 80 S. W. 133, on proof of relationship between parties as 
 implying that parent will receive support from the child. 
 Pleading' in actions of negligence. 
 
 Cited in notes (59 L.R.A. 227) on sufficiency of general allegations of negli- 
 gence; (16 Am. St. Rep. 313) on pleading negligence. 
 
 V 
 
 5 L. R. A. 176, ASKEY v. WILLIAMS, 74 Tex. 294, 11 S. W. 1101. 
 Infant's deed; action to disaffirm. 
 
 Cited in Simkin* v. Searcy, 10 Tex. Civ. App. 413, 32 S. W. 849, holding action 
 by minor's heirs to disaffirm deed five years after majority, too late; Peck v. 
 Cain, 27 Tex. Civ. App. 40, 63 S. \V. 177, denying infant's liability for abandon-' 
 merit of lease; Hatton v. Bodan Lumber Co. 57 Tex. Civ. App. 487, 123 S. W. 
 163, holding minor's deed voidable only, subject to repudiation within reasonable 
 time after his majority. 
 
813 L. R. A. CASES AS Al/fHORITIES. [5 L.B.A. 179 
 
 Validity of act* of persons under diMabillty. 
 
 Cited in Brown v. Farmers & M. Nat. Bank, 88 Tex. 274, 33 L. R. A. 363, 31 
 S. \V. 285, holding infant's contract to repay borrowed money not void, making 
 undertaking to answer for his default collateral; Williams v. Sapieha, 94 Tex. 
 433, 61 S. W. 115, holding power of attorney to convey by insane person voidable, 
 not void; First Nat. Bank v. McGinty, 29 Tex. Civ. App. 541, 69 S. W. 495, 
 holding owner of note executed by lunatic entitled to recover portion spent for 
 necessaries. 
 
 Cited in notes (18 Am. St. Rep. 584, 588, 589, 607, 633, 645, 646, 655, 675; 6 
 Eng. Rul. Cas. 54) on validity of contract by infant. 
 Infant's liability for necessaries. 
 
 Cited in footnotes to Goodman v. Alexander. 55 L. R. A. 781, which authorizes 
 recovery against infant for food and lodging, without alleging that defendant an 
 orphan; Gregory v. Lee, 25 L. R. A. 618, which holds minor leasing rooms while 
 attending college bound to pay for same as necessary, only while occupying them. 
 
 Cited in notes (15 L. R. A. 211) on contract by infant to work for necessaries; 
 (12 L. R. A. 859) on implied promise to pay for necessaries purchased by infant. 
 "What are necessaries. 
 
 Cited in Crafts v. Carr, 24 R. I. 406, 60 L. R. A. 132, footnote p. 128, 96 Am. 
 St. Rep. 721, 53 Atl. 275, which holds services of attorney in prosecuting for 
 infant action for damages for indecent assault on her, necessaries; Fisher v. Shea, 
 97 Me. 375, 61 L. R. A. 568, footnote p. 567, 54 Atl. 846, which holds defense of 
 suit against policeman for assault while acting in line of duty, within exception 
 of claims for necessaries in statute prohibiting garnishment of wages; Mclsaac 
 v. Adams, 190 Mass. 119, 112 Am. St. Rep. 321, 76 N. E. 654, 5 A. & E. Ann. Cas. 
 729, holding attorney's fees for services in settling an estate of a deceased person, 
 in which the minor was interested, are not necessaries. 
 
 Cited in note (96 Am. St. Rep. 735) on infant's liability for attorney's fees. 
 Costs in partition snit. 
 
 Cited in Powell v. Naylor, 32 Tex. Civ. App. 343, 74 S. W. 338, holding that 
 in partition suits, the defendants are liable for costs incurred by them in con- 
 testing rights of the successful plaintiffs. 
 
 5 L. R. A. 179, HENRY v. NEWBURYPORT, 149 Mass. 582, 22 N. E. 75. 
 KiKlits of riparian owner in ebb and flow of tide. 
 
 Cited in -Mills v. United States, 12 L. R. A. 680, 46 Fed. 745, holding diversion 
 of waters of river from rice canals and ditches of riparian proprietor to effect 
 improvement of stream for navigation, damnum absque injuria. 
 
 Cited in notes (12 L. R. A. 636, 639) on ownership of tide lands. 
 Ordinance of 1647. 
 
 Cited in Concord Mfg. Co. v. Robertson, 66 N. H. 26, 18 L. R. A. 693, 25 Atl. 
 718, holding object of ordinance was to induce erection of wharves for benefit of 
 commerce; Com. v. Boston Terminal Co. 185 Mass. 283. 70 N. E. 12."). holding 
 that under the ordinance of 1647 the proprietor of the upland took a fee in the 
 lands between high and low water marks; Old Colony Street R. Co. v. Phillips, 
 207 Mass. 179. 93 X. K. 792. to the point that under ordinance of 1647 proprietor 
 of upland on shore between high and low water mark had rigM to build wharves, 
 but not so as to impede navigation or cut off other owners. 
 
 Cited in footnotes to Watuppa Reservoir Co. v. Fall River, 13 L. R. A. 255, 
 which holds right of private persons in great pond not affected by ordinance of 
 1647; Atty. Gen. ex rcl. Mann. v. Revere Copper Co. 9 L. R. A. 510, which holds 
 town could not transfer title to great pond, granted to it before ordinance of 1647- 
 
5 L.R.A. 179] L. R. A. CASES AS AUTHORITIES. 814 
 
 Riparian rights as affected by erection of wharves. 
 
 Cited in notes (12 L. R. A. 617) on right of riparian owners to dock to low- 
 water mark; (12 L. R. A. 635) on establishment of dock and harbor lines; (14 
 L. R. A. 499) on establishment of dock lines; (40 L. R. A. 639) on right to erect 
 wharves. 
 Right to land under water. 
 
 Cited in Butler v. Atty. Gen. 195 Mass. 83, 8 L.R.A.(N.S.) 1048, 80 N. E. 688, 
 holding that the littoral owners take the fee to their portion of the land between 
 high and low water mark, subject to the rights of the public for navigation and 
 free fowling. 
 
 Cited in footnotes to Concord Mfg. Co. v. Robertson, 18 L. R. A. 679, as to 
 abutter's rights in public water and land under same; Gilbert v. Eldridge, 13 L. 
 R. A. 411, which authorizes the dissociation from upland of riparian right to 
 reclaim land under shallow water. 
 Nuisance; right of private action. 
 
 Cited in footnote to State v. Stark, 54 L. R. A. 910, which denies right of pri- 
 vate person to abate liquor nuisance without process of law. 
 
 Cited in note (6 L. R. A. 280) on action for damages from nuisance. 
 
 5 L. R. A. 183, REICHERT v. ST. LOUIS & S. F. R. CO. 51 Ark. 491, 11 S. W. 
 
 696. 
 Right of owner of fee in highway to compensation for nse by railway. 
 
 Cited in Canastota Knife Co. v. Newington Tramway Co. 69 Conn. 185, 36 Atl. 
 1107 (dissenting opinion), majority holding electric railway in public highway 
 not additional servitude for which owner of fee entitled to compensation; De 
 Lucca v. North Little Rock, 142 Fed. 600, holding that the building of a viaduct 
 over railroad to avoid grade crossing is not an additional servitude which gives 
 adjoining owner right to compensation. 
 
 Cited in note (36 L.R.A.(N.S.) 700, 702, 832) on abutter's right to compensa- 
 tion for railroads in streets. 
 Estopped by acquiescence. 
 
 Cited in Ferguson v. Covington & C. Electric R. & Transfer & Bridge Co. 108 
 Ky. 672, 57 S. W. 460, holding that owner's acquiescence for number of years in 
 railroad's occupation of street bars right to injunction; Little Rock R. & Electric 
 Co. v. North Little Rock, 76 Ark. 64, 88 S. W. 826 (dissenting opinion), on the 
 estoppel by silence to eject railroad from land; Union Sawmill Co. v. Fekenthal 
 Land & Townsite Co. 87 Ark. 121, 128 Am. St. Rep. 25, 112 S. W. 205, holding 
 that a landowner who stands by and watches a railroad being built over his land 
 without acting cannot afterward enjoin same or have it removed; St. Louis, I. 
 M. & S. R. Co. v. Batesville & W. Teleph. Co. 80 Ark. 503, 97 S. W. 660, on the 
 right of a railroad company to remove poles of a telephone company in place when 
 railroad was built; Gurnsey v. Northern California Power Co. 160 Cal. 710, 36 
 L.R.A.(N.S.) 192, 117 Pac. 906, holding that owner of land estopped from main- 
 taining ejectment against public service corporation which he permitted to occu- 
 py land without compensation. 
 
 Cited in footnote to Old Times Distillery Co. v. Casey, 42 L. R. A. 466, which 
 holds right to enjoin use of trade-mark lost by ten years' delay. 
 
 Cited in notes 17 Am. St. Rep. 24, on estoppel in pais; (7 L.R.A.(N.S.) 996) 
 on remedy of abutting owner as affected by consent to construction of track 
 in street or highway. 
 
 5 L. R. A. 189, CURDY v. BERTON, 79 Cal. 420, 12 Am. St. Rep. 157, 21 Pac. 858. 
 Constructive trusts arising from fraud of party in fiduciary relation. 
 
 Cited in Ransdel v. Moore. 153 Ind. 419, 53 L. R. A. 762, 53 N. E. 767, holding 
 
815 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 193 
 
 husband promising wife on death-bed to convey certain property to her brothers 
 deemed trustee as to property designated; Ludington v. Patton, 111 Wis. 257, 
 86 N. \V. 571, holding executors fraudulently preventing widow from electing to 
 take distributive share in husband's estate may be required to account for such 
 share by heirs of widow the same as though election had been made; Gemmel v. 
 Fletcher, 76 Kan. 592, 92 Pac. 713, holding where husband holds property of wife, 
 and to prevent her disposing of it by will during her last sickness, promised to 
 convey the real estate to another and the wife afterward died relying upon that 
 promise, and the husband refuses to convey, equity will impose a constructive 
 trust on the realty. 
 
 Cited in footnotes to Anglo-American Sav. & L. Asso. v. Campbell, 43 L.R.A. 
 622, which sustains constructive trust in favor of persons contributing labor or 
 materials for building, in full amount agreed to be advanced by third person; 
 Stahl v. Stahl, 68 L.R.A. 617, which holds constructive trust created where 
 mother ill in bed at solicitation of children conveys property to one of them on 
 his agreeing to hold it for benefit of all to avoid expense and his conveyance 
 thereof to another child with notice. 
 
 Cited in notes (106 Am. St. Rep. 97) on heir, devisee or legatee as trustee ex 
 maleficio; (58 L.R.A. 115) on trust implied to effectuate purpose when terms of 
 contract cannot be given effect; (8 L.R.A.(X.S.) 699, 703) on constructive trust 
 from fraud in frustrating decedent's intention to give property to third person; 
 (33 L.R.A. (X.S.) 997) as to whether constructive trust may be based upon under- 
 taking to hold for another's benefit property received through devise or inherit- 
 ance, where no actual testamentary intention frustrated. 
 
 5 L. R. A. 193, CARLETON v. RUGG, 149 Mass. 550, 14 Am. St. Rep. 446, 22 N. 
 
 E. 55. 
 Injunction, when proper. 
 
 Cited in Buel v. Baltimore & O. S. W. R. Co. 24 Misc. 667, 53 N. Y. Supp. 749, 
 holding bondholder entitled to preliminary injunction against paying out funds 
 of consolidated railroad in which earnings of constftuents are mingled; Evans 
 v. Reading Chemical Fertilizing Co. 160 Pa. 215, 28 Atl. 702. holding operation 
 of fertilizer factory, constituting nuisance, enjoinable; Worthington v. Waring, 
 157 Mass. 423, 20 L. R. A. 344, 34 Am. St. Rep. 294, 32 N. E. 744, holding equity 
 will not enjoin blacklisting, or compel reinstatement of striking employees; 
 Re Arkansas R. Rates, 168 Fed. 723, holding that in issuing a preliminary in- 
 junction, the comparative injury in granting and refusing it must be considered; 
 State ex rel. Lyon v. Columbia Water Power Co. 82 S. C. 191, 22 L.R.A.(N.S.) 
 440, 129 Am. St. Rep. 876, 63 S. E. 884, 17 A. & E. Ann. Cas. 343, holding public 
 nuisance may be enjoined, where it consists of obstruction of public highway. 
 
 Cited in notes (9 L. R. A. 716; 12 L. R. A. 754) on remedy by injunction 
 against nuisances; (6 L. R. A. 763) on abatement of public nuisance; (20 L. R. 
 A. 165) on power of equity to grant mandatory injunctions against nuisances; 
 (41 L. R. A. 321) on injunctions by municipal corporations against nuisances 
 affecting public morals, good order, health, and safety; (19^Eng. Rul. Cas. 305) 
 as to when injunction against nuisance will be granted. 
 Agralnst using; premises for sale of liqnor. 
 
 Followed without special discussion in State v. Massey, 72 Vt. 221, 47 Atl. 834. 
 
 Cited in State ex rel. Rhodes v. Saunders, 66 N. H. 84, 18 L. R. A. 654, 25 
 Atl. 588, holding use oi buildings for sale of liquor, though criminal offense, en- 
 joinable by equity; White v. Creamer, 175 Mass. 570, 56 N. E. 832, as to whether 
 petition to abate liquor nuisance is maintainable; Hartley v. Henretta, 35 Y\ . 
 Va. 237, 13 S. E. 375 (dissenting opinion), majority holding equity cannot en- 
 
5 L.R.A. 193] L. R. A. CASES AS AUTHORITIES. 816 
 
 join, or abate place of, illegal sale of liquor until owner's conviction; Devanney 
 v. Hanson, 60 W. Va. 8, 53 S. E. 60.'), holding that equity has jurisdiction to en- 
 join the sale of intoxicating drinks at a building contrary to law. 
 
 Cited in note (7 L. R. A. 300) on disobedience of injunction against sale -A 
 liquor, as contempt of court. 
 Ag'ainst crimes. 
 
 Cited in Weakley v. Page, 102 Tenn. 202, 46 L. R. A. 558, 53 S. W. 551, holding 
 bawdy house, though subject of criminal prosecution, enjoinable; Columbian 
 Athletic Club v. State, 143 Ind. 109, 28 L. R. A. 731, 52 Am. St. Rep. 407, 40 N. 
 E. 914, holding criminality of prize fighting no ground for denying injunction ; 
 State ex rel. Crow v. Canty, 207 Mo. 459, 15 L.R.A.(N.S.) 755, 123 Am. St. Rep. 
 393, 105 S. W. 1078, 13 A. & E. Ann. Caa. 787, holding a public nuisance may be 
 abated, although the offenders are amenable to criminal law; Ex parte Allison, 
 48 Tex. Crim. Rep. 638, 3 L.R.A.(X.S-) 626, 90 S. W. 492, 13 A. & E. Ann. Cas. 
 684, holding that where property rights are involved the courts will issue in- 
 junction, although it may be to restrain crime. 
 
 Cited in note (23 L.R.A. (N.S.) 691) on state's right to enjoin public nuisance 
 which is also a crime. 
 Constitutionality of statute grtvlng power to enjoin. 
 
 Cited in Ex parte Allison, 99 Tex. 463, 2 L.R.A.(N.S.) 1114, 122 Am. St. Rep. 
 653, 90 S. W. 870, holding statute authorizing any citizen to sue to enjoin main- 
 tenance of games prohibited by the statutes was constitutional ; Burckell v. State, 
 47 Tex. Civ. App. 395, 106 S. W. 190, holding statute giving power to enjoin the 
 public sale of intoxicating liquors without a license, is constitutional. 
 Right to jury trial. 
 
 Cited in Shapira v. D'Arcy, 180 Mass. 378, 62 N. E. 412, holding constitutional 
 right of jury trial does not extend to suit in equity; United States v. Debs, 5 
 Inters. Com. Rep. 209, 64 Fed. 753, holding statutory power to enjoin combina- 
 tions in restraint of interstate commerce not invasion of right to jury trial ; 
 State v. Murphy, 71 Vt. 137, 41 Atl. 1037, holding proceeding for violating in- 
 junction against maintaining place for illegal sale of liquor not invasion of con- 
 stitutional right of jury trial; Davis v. Auld, 96 Me. 568, 53 Atl. 118, raising, 
 without deciding, question whether statute giving equity power to enjoin liquor 
 nuisance invades right to jury trial; People ex rel. Atty. Gen. v. Tool, 35 Colo. 
 239, 6 L.R.A.(N.S.) 827, 117 Am. St. Rep. 198, 86 Pac. 224, holding that a right 
 to trial by jury does not extend to charges for contempt for violation of injunc- 
 tion. 
 
 Cited in footnotes to State ex rel. Rhodes v. Saunders, 18 L.R.A. 646, which 
 denies right to jury trial in equity case; Chessman v. Hale, G8 L.R.A. 410, which 
 sustains plaintiff's right to have questions as to existence of nuisance and amount 
 of damages tried by jury in suit to enjoin the nuisance and for damages. 
 Police power. 
 
 Cited in Com. v. Huntley, 156 Mass. 240, 15 L. R. A. 842, 30 N. E. 1127, hold- 
 ing statute prohibiting sale of oleomargarine, imitating butter, constitutional, 
 even when applied to original packages brought from another state. 
 
 Cited in footnotes to Laugel v. Bushnell, 58 L. R. A. 266, which sustains 
 ordinance declaring places where hop ale, hop and malt meal, and cider sold, 
 nuisances; Landry v. New Iberia, 58 L. R. A. 285, which denies city's power to 
 arbitrarily declare particular licensed saloon a nuisance. 
 
 Cited in note (20 Am. St. Rep. 556) on due process of law. 
 Parol evidence to identify person and property. 
 
 Cited in note (6 L. R. A. 43) on parol evidence to identify person and prop- 
 erty. 
 
8J7 L. K. A. CASES AS AUTHORITIES. [5 L.R.A. 200 
 
 Power of legislature to extend equity jurisdiction. 
 
 Cited in American Exp. Co. v. Southern Indiana Exp. Co. 167 Ind. 310, 78 X 
 E. 1021, holding that the legislature has the power to increase the powers of the 
 courts of equity. 
 
 5 L. R. A. 200, HARVEY v. MERRILL, 150 Mass. 1, 15 Am. St. Rep. 159, 22 X. 
 
 E. 49. 
 What are vragperingr and ultra vires contracts. 
 
 Cited in Goodwin v. Massachusetts Loan & T. Co. 152 Mass. 195, 25 X. E. 
 100, holding purchases of cotton futures legal under the circumstances; Xorthrup 
 v. Buffington, 171 Mass. 471, 51 N. E. 7, holding delivery was not intended, but 
 margins were paid as protection in transactions between parties ; Chase v. 
 Boston, 180 Mass. 460, 62 N. E. 1059, holding brokers properly taxed for stocks 
 in their possession; Farnum v. Whitman, 187 Mass. 383, 73 N. E. 473, holding 
 that to render a contract for the sale of wheat void as a wagering contract both 
 the parties must intend not to deliver or accept, but it is not enough that one 
 does so ; Fiske v. Doucette, 206 Mass. 284, 92 X. E. 455, to the point that fictitious 
 sales of stock though in compliance with rules of stock exchange may be wager- 
 ing contract; Carson v. Milwaukee Produce Co. 133 Wis. 92, 113 X*. W. 393, 
 holding contracts in the form of sales of personal property where neither party 
 intends to deliver or accept the property nominally sold are gambling contracts, 
 where they intend to settle the differences in prices in cash. 
 
 Cited in footnotes to First Xat. Bank v. Carroll, 8 L. R. A. 275, which holds 
 guaranty that cattle will sell at specified price, in consideration of receiving all 
 above such price, gambling contract; Cashman v. Root, 12 L. R. A. 511, which 
 holds purchase of stock on margin by broker for customer void; Booth v. People, 
 50 L. R. A. 762, which sustains statute making unlawful, options for sale of com- 
 modities which have been subject of gambling operations; Olson v. Sawyer Good- 
 man Co. 53 L. R. A. 648, which holds void an agreement to debit and credit on 
 accounts due employees, their winnings at card games with each other; Drinkall 
 v. Movious Suite Bank, 57 L. R. A. 341, which holds title to cashier's check, 
 acquired by payee's indorsement to gambler in payment for chips to be used in 
 gambling, defective; Jemison v. Citizens' Sav. Bank, 9 L. R. A. 708, which holds 
 speculative dealing in cotton futures by savings bank, ultra vires; Scales v. 
 State, 66 L.R.A. 730, which holds wagering contract in futures not shown by fact 
 that purchaser intended to sell his contract before time for performance arrived 
 uiilo* noncontemplation of actual performance of obligation by other party is 
 also shown. 
 
 Cited in notes (12 L. R. A. 121) on contracts not binding on makers; (7 L. 
 R. A. 705) as to when promissory note is invalid; (6 L. R. A. 588) on contracts 
 wholly void, being void as to everybody. 
 Effect of immoral use on risrht to relief. 
 
 Cited in Fuller v. Berger. 65 L.R.A. 381, enjoining infringement of patent on 
 bogus-coin detector, though devoted wholly to immoral use; Gibney v. Olivette, 
 196 Mass. 295, 82 X. E. 41, holding that one who has advanced money to be used in 
 an illegal transaction cannot recover the money from the wrongdoer he has aided. 
 
 Cited in footnotes to Fuller v. Berger. 63 L.R.A. 381, which holds that equity 
 will not refuse relief against infringement of patent because owner has devoted 
 it wholly to an immoral use: Woodson v. Hopkins, 70 L.R.A. 645. which holds 
 one conducting loan office and receiving rates of interest so extortionate a- to 
 shock moral sense and be against public policy not entitled to aid of equity to 
 compel agent to pay over money received in business or to obtain possession 
 of property pertaining to business. 
 L.R.A. An. Vol. I. 52. 
 
5 L.R.A. 200] L. R. A. CASES AS AUTHORITIES. 818 
 
 Right of recovery on watering contracts. 
 
 Cited in Barnes v. Smith, 159 Mass. 347, 34 N. E. 403, holding mere expecta- 
 tion that delivery of shares purchased would not be called for does not debar 
 broker from recovering his commission; Mohr v. Miesen, 4" Minn. 234, 49 X. 
 W. 862, holding that broker who advances money to enable his customer to carry 
 Avagering contract cannot recover it; Davy v. Bangs, 174 Mass. 242, 54 X. E. 
 536, holding that one who employs another to buy and sell stocks on margin with- 
 out intending delivery may recover payment made therefor under statute; Lyons 
 v. Coe, 177 Mass. 383, 59 N. E. 59, holding employer of broker on wagering con- 
 tract might recover under statute amount paid by him; Nave v. Wilson, 12 Ind. 
 App. 43, 38 N. E. 876, holding intimate connection between principal and agent 
 in promoting illegal transactions in futures prevents operation of rule that agent 
 must account to principal for moneys received by him; Wakefield v. Farnum, 170 
 Mass. 425, 49 N. E. 640, holding court not required to find that recovery should 
 be had on evidence of wagering contract; Rice v. Winslow, 182 Mass. 275, 65 
 N. E. 366, holding that equity will restrain foreclosure of mortgage and compel 
 surrender of note given under wagering contract; Wimvard v. Lincoln, 23 R. I. 
 493, 64 L. R. A. 176, 51 Atl. 106, holding transaction by which broker purchased 
 stock for customer, to be delivered on demand, valid ; Garseed v. Sternberger, 
 135 N. C. 502, 47 S. E. 603, denying right to reimbursement of one purchasing 
 cotton "futures" for another at loss; Wheeler v. Metropolitan Stock Exchange, 
 72 N. H. 318, 56 Atl. 754, holding contract for purchase of stock without delivery, 
 one party to pay difference between prices, void; Beers v. Wardwell, 198 Mass. 
 240, 84 X. E. 306, holding commissions for services cannot be recovered if based 
 on a wagering contract; Hallet v. Aggergaard, 21 S. D. 558, 14 L.R.A.(X.S-) 1253, 
 114 X. W. 696, holding that broker's commissions in purchase of grain for future 
 delivery will not be defeated unless neither party had any intention of receiving 
 or delivering property. 
 
 Cited in footnotes to Ullman v. St. Louis Fair Asso. 56 L. R. A. 606, which 
 denies right to abandon partly executed, illegal bookmaking contract for speci- 
 fied period, and recover back pro rata amount of money paid; Central Stock & 
 Grain Exchange v. Bendinger, 56 L. R. A. 875, which holds broker liable to 
 refund to principal, money illegally taken from agent as margin on gambling 
 transaction; Appleton v. Maxwell, 55 L. R. A. 93, which denies right of action 
 for money loaned to be used in gambling; Baxter v. Deneen, 64 L.R.A. 949, which 
 holds that broker with whom margins have been deposited in a stock gambling 
 transaction will not be enjoined from violating agreement to keep them on de- 
 posit in a specified bank until the transaction is closed. 
 
 Cited in note (11 L.R.A.(X.S.) 575) on right of broker to recover commissions 
 or advances in furthering wagering contract. 
 Conflict of lawn. 
 
 Cited in Mittenthal v. Mascagni, 183 Mass. 23, 60 L. R. A. 814. 97 Am. St. 
 Rep. 404, 66 X. E. 425, assuming law of Italy similar to ours as to effect of stipu- 
 lation in contract for adjustment of differences; Parrot v. Mexican C. R. Co. 207 
 Mass. 193, 34 L.R.A. (X.S.) 275, 93 X. E. 590, to the point common law will be 
 presumed to be same in different states in absence of evidence. 
 
 Cited in notes (64 L.R.A. 169) on conflict of laws as to gambling contracts, 
 when public policy of forum does not interfere; (67 L.R.A. 56, 61) on how case 
 determined when proper foreign law not proved; (113 Am. St. Rep. 875) on proof 
 of foreign laws and their effect. 
 
 5 L. R. A. 206, APPLETOX v. AMES, 150 Mass. 34, 22 N. E. 69. 
 Right of tenant to notice to qnit. 
 
 Cited in Wallace v. Ocean Grove Camp Meeting Asso. 78 C. C. A. 406, 148 Fed. 
 
819 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 209 
 
 673, holding that a tenant who has repudiated the relation of landlord and tenant 
 is not entitled to notice to quit; Poison v. Parsons, 23 Okla. 784, 25 L.R.A. (N.S.) 
 108, 104 Pac. 336, holding in an action of forcible entry and detainer, preliminary 
 notice to quit is waived where relation of landlord and tenant is denied by the 
 defendant; Benton v. Williams, 202 Mass. 192, 88 N. E. 843, on the rights of a 
 tenant at sufferance. 
 
 Cited in notes (25 L.R.A.(X.S-) 105) on denial of tenancy as waiver of notice 
 to quit or demand of possession; (15 Eng. Rul. Cas. 656) on necessity of notice 
 to quit to tenant denying right of person entitled as successor to landlord. 
 
 Distinguished in Lowman v. West, 8 Wash. 3GO, 36 Pac. 258, holding defendants 
 answering in action of unlawful detainer do not forfeit right to notice. 
 Termination of lease as forfeiture of sub-lease. 
 
 Cited in Geer v. Boston Little Circle Zinc Co. 126 Mo. App. 181, 103 S. W. 151, 
 on the forfeiture of the lease as a forfeiture of a sub-lease; Casassa v. Smith, 
 206 Mass. 71, 91 N. E. 891, holding that sublessee may, upon forfeiture of lease 
 by lessor attorn to owner, and sue his lessor upon implied covenant for quiet 
 enjoyment. 
 
 Cited in notes (117 Am. St. Rep. 99; 7 L.R.A.(N.S.) 222) on effect of surrender 
 of original lease on rights of sublessee. 
 
 5 L. R. A. 209, HODGKIXS v. FARRINGTON, 150 Mass. 19, 15 Am. St. Rep. 
 
 168, 22 N. E. 73. 
 Revocation of license to use land of another. 
 
 Cited in Hathaway v. Yakima Water, Light & P. Co. 14 Wash. 473, 53 Am. 
 St. Rep. 874, 44 Pac. 896, holding license to maintain a waste ditch upon land 
 of another revocable at will of licensor; Great Falls Waterworks Co. v. Great 
 Northern R. Co. 21 Mont. 501, 54 Pac. 963, holding parol license to lay water 
 mains revocable at any time, though mains laid at great expense, and maintained 
 for six years; Nowlin Lumber Co. v. Wilson, 119 Mich. 413, 78 N. W. 338, hold- 
 ing license in writing to construct logging railway across land, without compen- 
 sation, not irrevocable because of expenditure of money by licensee. 
 
 Cited in footnote to Rodefer v. Pittsburg, 0. V. & C. R. Co. 70 L.R.A. 844, 
 -which holds siding or switch constructed by railroad company to manufactory at 
 expense of and over land of manufacturer for sole purpose of affording facilities 
 for receiving and shipping freight and silent as to period it is to remain not main- 
 tainable by railroad company against manufacturer's objection. 
 
 Cited in notes ( 10 L. R. A. 484 ) on right by prescription to use of lands of 
 another; (49 L. R. A. 504) on revocability of license to maintain burden on land 
 after expense incurred; (31 Am. St. Rep. 714) on nature and revocation of parol 
 licenses; (136 Am. St. Rep. 684) on license as personal revocable privilege to do 
 something on land of another; (10 Eng. Rul. Cas. 93) on what is necessary to 
 obtain easement by prescription; (16 Eng. Rul. Cas. 80) on revocability of license. 
 
 Distinguished in Watson v. Adams, 32 Ind. App. 283, 69 X. E. 696, holding 
 that a parol license to cut growing timber could not be revoked, where same had 
 been acted upon by the vendee. 
 Conveyance by licensor as revocation. 
 
 Cited in Hicks Bros. v. Swift Crook Mill Co. 133 Ala. 416, 57 L. R. A. 721, 
 91 Am. St. Rep. 38, 31 So. 947, holding subsequent conveyance of land by licensor 
 operates as revocation of license to construct dam and ditch; Bunke v. Xew York 
 Teloph. Co. 110 App. Div. 248, 97 X. Y. Supp. 6(5, holding sale by owner of prem- 
 ises was revocation of license to attach telephone wires to roof; Re White Plains, 
 124 App. Div. 5, 108 X. Y. Supp. o96, holding license to enter lands to construct 
 improvements for sewer system, was revoked ipso fpcto by conveyance. 
 
5 L.R.A. 209] L. R. A. CASES AS AUTHORITIES. 820 
 
 Removal of 'property constructed under license. 
 
 Cited in Great Falls Waterworks Co. v. Great Northern R. Co. 21 Mont. 501, 
 54 Pac. 963, holding, upon revocation of parol license to lay water mains, licensee 
 entitled to reasonable time to remove property; Schade Brewing Co. v. Falls City 
 Pickle Works, 55 Wash. 204, 104 Pac. 175, holding that if the right to maintain 
 the drain over the servient estate was revoked by sale, it was for the owner of 
 latter to remove the same as the owner of the former was not bound to. 
 
 Cited in note (36 L.R.A.(N.S.) 403) on mandatory injunction for removal of 
 encroaching structure. 
 Acquiescence by owner without knowledge of nse of land. 
 
 Cited in Cautley v. Morgan, 51 W. Va. 311, 41 S. E. 201, holding that eject- 
 ment will lie against party, who, having license to extend party wall 10 inches 
 upon lot of adjoining proprietor, takes 16 inches without knowledge of licensor; 
 Harrington v. McCarthy, 169 Mass. 494, 48 N. E. 278, holding owner not guilty 
 of laches may enjoin maintenance of building projecting over his boundary line. 
 
 5 L. R. A. 213, GOULD v. STEIN, 149 Mass. 570, 14 Am. St. Rep. 455, 22 X. E. 
 
 47. 
 Implied warranty. 
 
 Cited in Morse v. Moore, 83 Me. 479, 13 L. R. A. 225, 23 Am. St. Rep. 783, 
 22 Atl. 362, and Northwestern Cordage Co. v. Rice, 5 N. D. 434, 57 Am. St. Rep. 
 563, 67 N. W. 298, holding that sale by particular description constitutes war- 
 ranty that article answers that description; Hobart v. Young, 63 Vt. 370, 12 L. 
 R. A. 697, 21 Atl. 612, holding positive statements descriptive of kind, or assert- 
 ive of quality and condition, of thing sold are warranties, if reasonably suscep- 
 tible of such construction, and relied on; Timken Carriage Co. v. Smith, 123 
 Iowa, 558, 99 N. VV. 183, holding warranty implied when carriage sold by descrip- 
 tion, without opportunity to inspect; Ideal Wrench Co. v. Garvin Mach. Co. 
 92 App. Div. 204, 87 N. Y. Supp. 41 (dissenting opinion), majority holding that 
 no warranty survives acceptance under contract for goods "equal to model/" 
 As to quality. 
 
 Cited in Miller v. Moore, 83 Ga. 692, 6 L. R. A. 376, 20 Am. St. Rep. 329, 10 
 S. E. 360, holding that sale of "No. 2 white mixed corn, bulk" imports warranty 
 as to both quality and variety; Love v. Miller, 104 N. C. 588, 10 S. E. 685, hold- 
 ing contract to sell cotton of "average grade of middling and nice" is warranty 
 that cotton shall be in fact of quality contracted for. 
 
 Cited in note (102 Am. St. Rep. 614, 615) on implied warranty of quality. 
 As to description and sample. 
 
 Cited in Miamisburg Twine & Cordage Co. v. Wohlhuter, 71 Minn. 485, 74 N. 
 W. 175, holding, when goods warranted to correspond both to description and 
 sample, not enough that bulk correspond to sample only; Putnam-Hooker Co. v. 
 Hewins. 204 Mass. 430, 90 N. E. 983, holding a description of the cloth in letters 
 constituting the contract, was a warranty of cloth to be delivered; Proctor v. 
 Atlantic Fish Cos. 208 Mass. 354, 94 N. E. 281, holding that sale of goods by 
 description amounts to warranty that goods are as described even though goods 
 were inspected but difference not detected. 
 
 Cited in notes (70 L.R.A. 664) on warranty on sale of goods by sample; (35 
 L.R.A. (N.S.) 270, 283, 285) on effect of sale with particular description of kind 
 or quality; (23 Eng. Rul. Cas. 464) on implied warranty on sale of goods by 
 description. 
 Burden of proof as to breacli of warranty. 
 
 Cited in Roth v. Continental Wire Co. 94 Mo. App. 270, 68 S. W. 594, holding 
 
821 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 221 
 
 burden on buyer to establish defense of breach of warranty to action for purchase 
 
 price. 
 
 Waiter of implied warranty toy failure to Inspect. 
 
 Cited in Atkins Bros. Co. v. Southern Grain Co. 119 Mo. App. 125, 95 S. W. 
 949, holding failure to inspect a shipment of corn did not preclude the purchaser 
 from relying upon the implied warranty of merchantable quality. 
 
 Cited in note (24 L.R.A.(N.S.) 237, 239) on failure to inspect or test as waiver 
 of express warranty. 
 Kiuiit to rely on express warranty. 
 
 Cited in Oak Lawn Sugar Co. v. Sparks Bros. Mule Co. 159 Mo. App. 500, 141 
 S. W. 698, holding that vendee may rely on express warranty even though he 
 inspects goods, but it must appear that he did so rely. 
 
 5 L. R. A. 217, STATE ex rel. CLEMENTS v. HUMPHREYS, 74 Tex. 466, 12 S. 
 
 W. 99. 
 Improperly influencing voters. 
 
 Cited in Wallis v. Williams, 50 Tex. Civ. App. 628, 110 S. W. 785, holding 
 that there was no presumption that persons other than those shown to have 
 been so, were affected by the improper influences. 
 Legal effect of bribery in election, before criminal conviction. 
 
 Cited in note (90 Am. St. Rep. 88) on effect of offer of candidate to donate 
 salary. 
 
 Distinguished in Tinkle v. Wallace, 167 Ind. 387, 79 N. E. 355, holding that an 
 election may be contested under the local statutes on the ground of bribery 
 without a previous criminal conviction of the offenders. 
 
 5 L. R. A. 219, LINDSAY v. GARVIN, 31 S. C. 259, 9 S. E. 862. 
 Agreement as to extension of mortgages. 
 
 Cited in O'Neill v. Bennett, 33 S. C. 245, 11 S. E. 727, holding evidence of 
 oral agreement to extend mortgage for advances inadmissible; Levi v. Blackwell, 
 35 S. C. 516, 15 S. E. 243, holding equitable mortgage can be extended to cover 
 indebtedness due mortgagee, not included in it. 
 
 Cited in notes (6 L.R.A. 37) on proof of subsequent agreement to contradict 
 or vary written contracts; (56 Am. St. Rep. 668) on modification of written con- 
 tract by subsequent parol agreement. 
 
 5 L. R. A. 221, TEFFT v. STERN BERG, 40 Fed. 2. 
 
 Conflict of jurisdiction. 
 
 Cited in East Tennessee, V. & G. R. Co. v. Atlanta & F. R. Co. 15 L. R. A. 113, 
 49 Fed. 617, holding appointment of receiver of railroad by Federal court gives 
 paramount jurisdiction of property over receiver subsequently appointed by 
 state court, upon bill filed previous to that in Federal court; Re Macon Sash 
 Door & Lumber Co. 112 Fed. 333, holding comity between state and Federal 
 courts does not preclude Federal court taking jurisdiction of bankrupt estate 
 after appointment of receiver by state court in insolvency proceeding; Cobe v. 
 Ricketts, 111 Mo. App. 110, 85 S. W. 131, holding where a state court has juris- 
 diction of the parties and subject-matter of a suit to wind-up a building and 
 loan association prior to one for same purpose in a Federal court, it has jurisdic- 
 tion to finally determine the same, notwithstanding the other suit. 
 
 Cited in footnotes to Gay v. Brierfield Coal & I. Co. 16 L. R. A. 5ti4. which 
 authorizes suit in state court by creditors of mortgagor, although foreclosure 
 suit pending in Federal court; East Tennessee, V. & G. R. Co. v. Atlanta & F. 
 R. Co. 15 L. R. A. 109, which holds that amicable proceeding in state court doea 
 
5 L.R.A. 221] L. R. A. CASES AS AUTHORITIES. 822 
 
 not prevent Federal court appointing receiver; Ford v. Judsonia Mercantile Co. 
 
 6 L. R. A. 714, which holds that sheriff's custody of attached property cannot be 
 transferred to receiver by court of chancery. 
 
 Hit; lit to levy on property in custody of law. 
 
 Cited in Pitkin v. Burnham, 62 Neb. 397, 55 L. R. A. 287, 89 Am. St. Rep. 
 763, 87 N. W. 160, holding property held by officer under valid process not subject 
 to levy by another officer under different process against same debtor; Allen v. 
 Gerard, 21 R. I. 469, 49 L. R. A. 352, 79 Am. St. Rep. 816, 44 Atl. 592, holding 
 mone^y payable by one as clerk of court not subject to trustee process; Reger 
 v. Manhattan Brass Co. 6 Pa. Super. Ct. 379, 41 W. N. C. 422, holding property in 
 hands of claimant under bond to deliver to sheriff not subject to other process 
 against same debtor. 
 
 Cited in footnote to Tuck v. Manning, 5 L. R. A. 666, which refuses to allow 
 general creditors to intervene and obtain money paid into court for their debtor. 
 
 Cited in note (10 L.R.A. 52.9) on property in custody of law not subject to 
 seizure. 
 
 5 L. R. A. 226, BROWN v. CIRCUIT JUDGE, 75 Mich. 274, 13 Am. St. Rep. 
 
 438, 42 N. W. 827. 
 Jury trial in chancery cases. 
 
 Cited in Maier v. Wayne Circuit Judge, 112 Mich. 494, 70 N. W. 1032, holding 
 statute that all issues upon the legality of a marriage (except physical inca- 
 pacity) shall be tried by jury, not mandatory, but may be waived; Raymond v. 
 Flavel, 27 Or. 231, 40 Pac. 158, holding submission to jury discretionary under 
 Code authorizing submission whenever, in an equity suit, it becomes necessary 
 or proper to obtain verdict; McCarthy v. Kent Circuit Judge, 118 Mich. 365, 76 
 N. W. 756, holding jury's findings merely advisory under statute making prac- 
 tice same as in personal actions at law. 
 Rig-ht to jury trial in equity cases and conclnsiveness of verdict. 
 
 Cited in Smith v. Speed, 11 Okla. 107, 55 L. R. A. 406, 66 Pac. 511, holding that 
 legislature cannot require hearing for contempt to be submitted to trial by jury; 
 Detroit Nat. Bank v. Blodgett, 115 Mich. 170, 73 N. W. 885, holding chancery 
 power to pass upon questions of fact without jury cannot be abridged by statute; 
 Arnold v. Sinclair, 12 Mont. 278, 29 Pac. 1124, holding verdict not binding upon 
 court under Code provision that in all cases issues of fact must be tried to a 
 jury; Laprad v. Sherwood, 79 Mich. 523, 44 N. W. 943, as to invalidity of statute 
 providing for trial of chancery cases by jury. 
 Power of legislature over courts. 
 
 Cited in Johnson v. State, 42 Tex. Grim. Rep. 97, 51 L. R. A. 277, 58 S. W. 
 60 (dissenting opinion), majority holding Code provision against reversing judg- 
 ment for error in charge, not excepted to by bill or motion for new trial, valid 
 as affecting remedy, and not rights; Nichols v. Superior Court Judge, 130 Mich. 
 195, 89 N. W. 691, holding that legislature created superior court with power to 
 punish contempts; Barnett v. State, 42 Tex. Grim. Rep. 321, 62 S. W. 765 (dis- 
 senting opinion), majority sustaining statute as to reservation of exceptions in 
 criminal cases. 
 
 Distinguished in Webber v. Hayes, 117 Mich. 259, 75 N. W. 622, holding 
 statute permitting garnishment for lands held by conveyance void as to creditors 
 not unconstitutional as depriving equity of jurisdiction. 
 Encroachment upon powers of judiciary. 
 
 Cited in Bridge Street & A. Gravel-Road Co. v. Hogadone, 150 Mich. 648, 114 
 N. W. 917, holding a statute which gave to the toll-road commissioners the right 
 
823 L, R. A. CASES AS AUTHORITIES. [5 L.R.A. 231 
 
 to determine when a toll road was out of repair and to prohibit the toll company 
 from taking toll thereafter, was an encroachment upon the courts of chancery, 
 and unconstitutional. 
 Equity jurisdiction. 
 
 Cited in Mack v. Frankfort, 123 Mich. 425, 82 N. W. 211, holding allegation of 
 fraud in issuance of bonds not basis for bill in equity, where equity powers not 
 necessary to relief sought; Northwestern Mut. L. Ins. Co. v. Amos, 136 Mich. 237, 
 98 N. W. 1018 (dissenting opinion) ; Fred Macey Co. v. Macey, 143 Mich. 160, 5 
 L.R.A. (X.S.) 1048, 106 N. W. 722, on the concurrent jurisdiction of courts of 
 equity and of law in cases of fraud. 
 Repeals by Implication. 
 
 Cited in Re Bushey, 105 Mich. 68, 62 N. W. 1036, holding legislature not pre- 
 sumed to have intended to repeal a law not referred to, unless intent clear. 
 When mandamus or certiorarl lies. 
 
 Cited in State v. Hart, 19 Utah, 444, 57 Pac. 415, and Brown v. Pontiac Min. 
 Co. 105 Mich. 656, 63 N. W. 1000, holding mandamus to inferior court, proper 
 remedy for refusal to entertain jurisdiction; Crooks v. Fourth Judicial Dist. 
 Court, 21 Utah, 108, 59 Pac. 529 (dissenting opinion), majority denying right to 
 cortiorari to review judgment of district court dismissing appeal, where judgment 
 made final by Constitution. 
 
 Cited in footnote to Territorial Insane Asylum v. Wolfley, 8 L. R. A. 188, which 
 denies mandamus to compel governor to sign warrant for funds for asylum. 
 
 Cited in note (15 Eng. Rul. Cas. 135) on power of higher court to require 
 justices to review their discretionary decisions. 
 Infringement on powers of law court ly chancery. 
 
 Cited in note (8 L.R.A. (N.S.) 866) on infringement upon powers of law court 
 by permitting chancery to set aside verdict upon issue directed. 
 Retention of jurisdiction by court first acquiring: it. 
 
 Cited in Hartford F. Ins. Co. v. Ledford, 151 111. App. 417, to the point that 
 court first acquiring jurisdiction of subject-matter must retain it until fully dis- 
 posed of unless complete justice cannot be done. 
 
 5 L. R. A. 231, CASE MFG. CO. v. SMITH, 40 Fed. 339. 
 Waiver of lien. 
 
 Cited in Henry & C. Co. v. Fisherdick, 37 Neb. 223, 55 N. W. 643; Peninsular 
 General Electric Co. v. Norris, 100 Mich. 506, 59 N. W. 151; Hooven, O. & R. Co. 
 v. John Featherstone's Sons, 49 C. C. A. 243, 111 Fed. 95, Affirming 99 Fed. 181, 
 holding reservation of title not a waiver of mechanic's lien for property sold; 
 Farmers' & M. Nat. Bank v. Taylor, 91 Tex. 82, 40 S. W. 876, holding lien not 
 waived by taking note and mortgage on the property and suing thereon; Warner 
 Elevator Mfg. Co. v. Capitol Invest. Bldg. & L. Asso. 127 Mich. 326, 89 Am. St. 
 Rep. 473, 86 N. W. 828, and Phoenix Mfg. Co. v. McCormick Harvesting Mach. 
 Co. Ill Wis. 574, 87 N. W. 458, holding mere taking of chattel mortgage on 
 chattels before annexation to realty not a waiver of mechanic's lien. 
 Of conditional vendor. 
 
 Cited in Pettyplace v. Groton Bridge & Mfg. Co. 103 Mich. 160, 61 N. W. 266, 
 holding conditional sale of personal property not made absolute by vendor's 
 accepting additional security; Mizell Live Stock Co. v. J. J. McCaskill Co. 59 Fla. 
 329, 51 So. 547, to the point that conditional sale of property expressed in instru- 
 ment is not inconsistent with lien upon other property given by same instrument; 
 Scott Mfg. Co. v. Morgan, 22 Montg. Co. L. Rep. 207; Elwood State Bank v. 
 Mock, 40 Ind. App. 688, 82 N. E. 1003, holding right of vendor of machinery to 
 
5 L.R.A. 231] L. R. A. CASES AS AUTHORITIES. 824 
 
 take and hold mechanic's lien not waived by stipulating in contract of sale that 
 title remains in him until full payment of purchase price; Fairbanks-Morse Co. 
 v. Union Bank & T. Co. 55 Wash. 542, 104 Pac. 815, holding retention of title to 
 marine engine under conditional sale contract not waiver of lien upon vessel. 
 Priority of liens. 
 
 Cited in note (12 L. R. A. 35) on priority of mechanic's liens over subsequent 
 liens. 
 
 5 L. R. A. 233, JENNINGS v. BANK OF CALIFORNIA, 79 Cal. 323, 12 Am. 
 
 St. Rep. 145, 21 Pac. 852. 
 Corporation's lien on stock for stockholder's indebtedness. 
 
 Cited in Costello v. Portsmouth Biewing Co. 69 N. H. 409, 43 Atl. G40, holding 
 Tjy-law creating lien on stock binding on stockholder chargeable with notice ; 
 Stafford v. Produce Exchange Bkg. Co. 61 Ohio St. 168, 76 Am. St. Rep. 371, 55 
 N. E. 162, holding that corporation may assert lien reserved in stock certificate 
 against transferee; Bronson Electric Co. v. Rheubottom, 122 Mich. 611, 81 N. W. 
 563, holding by-law creating lien on stock for debts due to corporation valid 
 except against innocent purchasers for value; Morrison-Wentworth Bank v. 
 Kerdolff, 75 Mo. App. 301. holding to the same effect; Lankershim Ranch Land 
 
 6 Water Co. v. Herberger, 82 Cal. 603, 23 Pac. 134, denying lien for unpaid 
 instalments where possession of certificate lacking; Ralston v. Bank of California, 
 112 Cal. 214, 44 Pac. 476, holding bank's refusal to transfer stock not conversion 
 when owner indebted to bank; Des Moines Nat. Bank v. Warren County Bank, 
 97 Iowa, 210, 66 N. W. 154, holding effect of knowledge of by-law giving bank 
 lien on stock for debts due it from stockholder, was to make contract by which 
 bank was given lien upon stock represented, valid as between bank and stock- 
 holder, for liabilities incurred after certificate issued; Des Moines Loan & T. 
 Co. v. Des Moines Nat. Bank, 97 Iowa, 675, 66 N. W T . 914, holding that corpora- 
 tion has no lien, where it made no claim thereto when stock was presented to it 
 by assignee and indorsement made on stubs that he held it as collateral. 
 
 Cited in footnote to Buffalo German Ins. Co. v. Third Nat. Bank, 48 L. R. A. 
 107, which denies equitable lien on national bank stock under by-law in conflict 
 with act of Congress. 
 
 Cited in note (39 L.R.A. (N.S.) 293, 297) on priority as between lien of corpo- 
 ration and pledgee or purchaser of stock. 
 Agent's power to act for corporation. 
 
 Cited in Greig v. Riordan, 99 Cal. 322, 33 Pac. 913, holding corporation's 
 agent may assign chose in action; Greig v. Riordan, 99 Cal. 322, 33 Pac. 913, 
 sustaining power of corporate general manager to assign chose in action for 
 collection; Preston v. Central California Water & Irrig. Co. 11 Cal. App. 201, 104 
 Pac. 462, holding proof of execution of assignment of account for transporting 
 freight by manager or superintendent of railroad corporation, and of account for 
 goods sold by mercantile company by manager thereof prima facie proof of 
 authority of managers to execute them. 
 Rig'hts of aasig-nee. 
 
 Cited in Miller v. Engle, 3 Cal. App. 334, 85 Pac. 159, holding assignee of 
 certificate of purchase of state lands has no equities entitling him to greater 
 rights than his assignor. 
 
 Cited in note (57 Am. St. Rep. 391, 395) on rights of assignee of stock not 
 transferred in manner prescribed by regulations. 
 
S-15 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 230 
 
 5 L. R. A. 230, OMAHA & G. SMELTING & REF. CO. v. TABOR, 13 Colo. 41, 
 16 Am. St. Rep. 185, 21 Pac. 925. 
 
 Subsequent action to recover money paid by plaintiff as result of adjudication 
 in main case in Omaha & G. Smelting & Ref. Co. v. Rucker, 6 Colo. App. 335, 
 40 Pac. 853. 
 Evidence of agrent's declarations. 
 
 Cited in Union Coal Co. v. Edtnan, 16 Colo. 440, 27 Pac. 1060, holding reports 
 signed by one as superintendent inadmissible to show agency. 
 Trover. 
 
 Cited in Jones v. Kellogg, 51 Kan. 284, 37 Am. St. Rep. 278, 33 Pac. 997, 
 holding title in third person no defense in action for trover; Crosby v. Stratton, 
 17 Colo. App. 217, 68 Pac. 130, holding right to purchase stock not support 
 action in trover against one who purchased more than proportionate share. 
 
 Cited in note in (14 Am. St. Rep. 804) on conversion of personalty sufficient 
 to sustain trover. 
 Conversion: license by cotennnt HS defense. 
 
 Cited in Sullivan v. Sherry, 111 Wis. 478, 87 Am. St. Rep. 890, 87 N. W. 471, 
 holding licensee of cotenant liable for conversion of timber. 
 
 Cited in note (91 Am. St. Rep. 882, 884) on effect of license by cotenant of 
 mine. 
 Parol evidence as to intention. 
 
 Cited in note (6 L. R. A. 40) on parol evidence as to intention. 
 Government land; effect of final certificate. 
 
 Cited in Struby-Estabrook Mercantile Co. v. Davis, 18 Colo. 95, 36 Am. St. 
 Rep. 266, 31 Pac. 495, holding final receipt issued upon homestead entry binding 
 as patent; Sayre v. Sage, 47 Colo. 563, 568, 108 Pac. 160, holding purchaser not 
 invested with any additional property in land by patents, but only given better 
 legal evidence of title. 
 Adverse possession. 
 
 Cited in notes (9 L.R.A. 772) en adverse possession under color of title; (12 
 L.R.A.(N.S.) 1144) on right of permissive possessor to acquire title by adverse 
 possession; (15 L.R.A.(X.S.) 1185) on necessity of color of title, not expressly 
 made a condition by statute, in adverse possession; 40 L.R.A.(X.S.) 822, on 
 title to mining claim by adverse possession. 
 Conversion by purchaser in grood faith. 
 
 Cited in footnotes to Woods v. Nichols, 48 L. R. A. 773, which holds purchaser 
 in good faith from purchaser by conditional sale liable for conversion on resell- 
 ing; Dean v. Cushman, 55 L. R. A. 959, which denies liability for conversion 
 without demand, of purchaser in good faith of mortgaged chattels from mort- 
 gagor in possession. 
 Conversion; measure of damages. 
 
 Cited in Sylvester v. Craig, 18 Colo. 48, 31 Pac. 387, and Sutton v. Dana, 15 
 Colo. 101, 25 Pac. 90, holding measure of damages for conversion is value at time 
 of taking, witli interest; Illinois C. R. Co. v. Le Blanc, 74 Miss. 648, 21 So. 748, 
 and Dai-ant Min. Co. v. Percy Consol. Min. Co. 35 C. C. A. 254, 93 Fed. 168, 
 holding only value of ore in place recoverable, where taking inadvertent ; White 
 v. Yawki-y, 108 Ala. 275, 32 L. R. A. 201, 54 Am. St. Rep. 159, 19 So. 360, 
 holding value immediately after severance, with interest, recoverable for con- 
 version of logs by innocent trespasser; United Coal Co. v. Canon City Coal Co. 
 24 Colo. 123, 48 Pac. 104."). holding damages for coal mined by wilful trespassers, 
 value at time of conversion without deduction for labor; White v. Yawkey, 108 
 
5 L.R.A. 236] L. R. A. CASES AS AUTHORITIES. 826 
 
 Ala. 275, 32 L.R.A. 199, 54 Am. St. Rep. 159, 19 So. 360, holding measure of 
 damages for conversion of logs or trees where trespass unintentional value im- 
 mediately after severance with interest; Sigel-Campion Live Stock Co. v. Holly, 
 44 Colo. 583, 101 Pac. 68, holding measure of damages is fair market value of 
 property at time of conversion and under local statute legal rate of interest 
 from time of conversion to time of trial; Bender v. Brooks, 103 Tex. 336, 127 
 S. W. 168, holding that measure of damages against one who innocently takes 
 oil from another's land is market value of oil taken less reasonable cost of 
 producing it. 
 
 Cited in note (17 Eng. Rul. Cas. 883, 884) on measure of damages against one 
 mining beyond the limits of his property. 
 Interest ; when recoverable. 
 
 Cited in Salazar v. Taylor, 18 Colo. 543, 33 Pac. 369, holding interest recover- 
 able as such only as by statute provided; Updegraff v. Lesem, 15 Colo. App. 312, 
 62 Pac. 342, and Perkins v. Marrs, 15 Colo. 266, 25 Pac. 168, holding damages 
 equivalent to interest allowable for conversion; New Dunderberg Min. Co. v. Old, 
 38 C. C. A. 93, 97 Fed. 154, holding interest recoverable from date of wrongful 
 conversion of property; American Xat. Bank v. Hammond, 25 Colo. 375, 55 Pac. 
 1090, holding damages equal to interest recoverable in action for false representa- 
 tions inducing sale on credit; Mayo v. Wahlgreen, 9 Colo. App. 518, 50 Pac. 40, 
 holding interest recoverable as damages in action for misrepresenting to partner 
 purchase price of property; Pettit v. Thalheimer, 3 Colo. App. 358, 33 Pac. 277, 
 holding interest not recoverable in action against agent for negligence in placing 
 loan; Greeley, S. L. & P. R. Co. v. Yount, 7 Colo. App. 193, 42 Pac. 1023, holding 
 interest not recoverable for unauthorized appropriation of land; Isabella Gold 
 Min. Co. v. Glenn, 37 Colo. 173, 86 Pac. 349, holding interest recoverable in action 
 for breach of covenant of quiet enjoyment in mining lease; Montezuma County 
 v. Wheeler, 39 Colo. 213, 89 Pac. 50, holding interest recoverable only where 
 there is express statutory provision therefor; Cree v. Lewis, 49 Colo. 194, 112 
 Pac. 326, holding that one who wrongly converts money may be required to pay 
 interest thereon; Brown v. First Xat. Bank, 49 Colo. 400, 113 Pac. 483, holding 
 that director of bank who has misappropriated money is liable for interest from 
 time of taking; Denver v. Barber Asphalt Paving Co. 72 C. C. A. 402, 141 Fed. 
 71, holding interest, whether as damages or under statute, must be given from 
 date of demand of payment for labor performed and materials furnished. 
 
 Cited in note (28 L.R.A.(X.S.) 21, 30) on interest on unliquidated damagea 
 Color of title. 
 
 Cited in Sayre v. Sage, 47 Colo. 563, 108 Pac. 160, holding color of title can 
 only arise out of instrument purporting to convey real estate. 
 Parol variation of consideration in deed. 
 
 Distinguished in Cheesman v. Xicholl, 18 Colo. App. 177, 70 Pac. 797, holding 
 though additional consideration rest upon contingency, oral agreement to pay it 
 may be proved and recovered upon by vendor. 
 Revocabillty of license. 
 
 Cited in notes (31 Am. St. Rep. 713) on nature and revocation of parol licenses; 
 (16 Eng. Rul. Cas. 80) on revocability of license. 
 Evidence as to credibility of witness. 
 
 Cited in note (82 Am. St. Rep. 42) on evidence to show credibility or bias of 
 witness. 
 
 e L. R. A. 245, BOGGS v. BODKIN, 32 W. Va. 566, 9 S. E. 891. 
 
 Subsequent action of ejectment by same petitioners, in Bodkin v. Arnold, 45 
 W. Va. 94, 30 S. E. 154. 
 
827 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 253 
 
 Subsequent action for inesne profits, in Bodkin v. Arnold, 48 W. Va. 109, 35 
 S. E. 980. 
 Specific performance of laud contract. 
 
 Cited in Miller v. Lorentz, 39 W. Va. 172, 19 S. E. 391, decreeing specific per- 
 formance of partly completed verbal contract for sale of land ; McCully v. McLean, 
 48 W. Va. 629, 37 S. E. 559, holding parol contract for exchange of lands will 
 not be enforced where it appears to have been altered; Dunn v. McGovern, 116 
 Iowa, 666, 88 X. W. 938, denying specific performance when contract is ambiguous; 
 RatlifT v. Sommers, 55 W. Va. 43, 46 S. E. 712, 1 A. & E. Ann. Cas. 970, holding 
 parol contract enforceable in equity, where there was possession, payment, and 
 improvements by vendee; Bell v. Whitsell, 64 W. Va. 5, 60 S. E. 879, holding 
 oral contract for sale of land will not be enforced in equity unless established 
 by full, clear, and convincing evidence; Armstrong v. Maryland Coal Co. 67 
 W. Va. 613, 69 S. E. 195, holding that vendor may enforce specific performance 
 if able to give title at stipulated time though he could not do so at time contract 
 was made; School Dist. No. 1 v. Holt, 226 Mo. 419, 126 S. W. 462, holding con- 
 tract taken out of statute of frauds where possession was had by both parties in 
 pursuance of agreement and buyer could not be restored to statu quo. 
 
 Cited in footnotes to Russell v. Briggs, 53 L. R. A. 556, which holds super- 
 intendence of repairs on buildings, etc., insufficient to entitle one to specific per- 
 formance of oral agreement to convey interest in land to be received in exchange; 
 Hodges v. Kowing, 7 L. R. A. 87, which holds contract enforceable against pur- 
 chaser though not signed by vendor; Coffey v. Emigh, 10 L. R. A. 127, which 
 holds fair, reasonable, and just contract enforceable if both parties are able to 
 perform. 
 Rescission of contract. 
 
 Cited in Cunningham v. Cunningham, 46 W. Va. 4, 32 S. E. 998, holding posses- 
 sion of land taken under verbal contract of sale must be surrendered to make 
 complete recission; Marsh v. Despard, 56 W. Va. 140, 49 S. E. 24, holding 
 executory contract for sale of land rescinded by purchaser's leasing from seller. 
 Proof of ovrneranip. 
 
 Cited in Tregea v. Mills, 11 Wyo. 456, 72 Pac. 578, holding preponderance of 
 evidence required to show land belonged to partnership. 
 
 5 L. R. A. 253, GOSHEN v. ENGLAND, 119 Ind. 368, 21 N. E. 977. 
 Liability of municipality for neglect. 
 
 Cited in Nappanee v. Ruckman, 7 Ind. App. 364, 34 N. E. 609, holding 
 municipal corporation liable for negligence in failing to keep street in repair; 
 Elliott v. Kansas City, 174 Mo. 567, 74 S. W. 617, holding city liable for reputable 
 physician's mistakes in treating one who fell on defective walk. 
 
 Cited in footnotes to Burns v. Bradford, 11 L. R. A. 726, which holds city not 
 liable for injury due to slight deviation of sidewalk from original level ; Childrey 
 v. Huntington, 11 L. R. A. 313, which holds city not liable for injury to policeman 
 while struggling with person under arrest, by catching foot in hole not dan- 
 gerous to persons walking; Teagar v. Fleir.ingsburg, 53 L. R. A. 792, which holds 
 mere building of step in sidewalk not negligence rendering city liable for injury 
 to pedestrians ; Texas & P. R. Co. v. White, 62 L. R. A. 90, holding aggravation 
 c-f injury through failure to obtain medical treatment not chargeable against one 
 causing injury; Harden v. Jackson, 66 L.R.A. 986, which holds plank sidewalk 
 not so unsafe as to render city liable to one falling thereon because his cane 
 goes through, although the edges of planks have become so decayed as not to 
 withstand pressure of cane. 
 
5 L.R.A. 253] L. R. A. CASES AS AUTHORITIES. 828 
 
 Cited in notes ( 10 L. R. A. 737 ) on duty of municipality to keep streets and 
 sidewalks in safe condition, and liability for neglect to do so; (9 L. R. A. 210) 
 on liability of municipality for acts or omissions of officers or agents; (19 L. 
 R. A. 454) on distribution between public and private functions of municipalities 
 as to liability for negligence. 
 Contributory neK-lisreiice. 
 
 Cited in note (12 L. R. A. 280) on contributory negligence must be proximate 
 cause of injury. 
 Subsequent neg'lisence affectinsr recovery for injury. 
 
 Cited in Belcher v. Missouri, K. & T. R. Co. 92 Tex. 597. 50 S. W. 559, holding 
 that owner of cattle can recover for such portion of injury done cattle by failure 
 of railroad to provide feed, as his diligence could not have avoided; Terre Haute 
 
 6 I. R. Co. v. Sheeks, 155 Ind. 99, 56 X. E. 434, holding aggravation of injuries 
 by negligence of injured, matter of defense ; Columbia City v. Langohr, 20 Ind. 
 App. 404, 50 X. E. 831, holding recovery for injury should not be reduced if 
 directions prescribed by physician aggravated injury; Citizens' Street R. Co. 
 v. Hobbs, 15 Ind. App. 619. 43 X. E. 479. holding injured party cannot recover for 
 aggravation of injury caused by neglect in procuring medical attendance; Salem 
 v. Walker, 16 Ind. App. 691, 46 X. E. 90, holding recovery not allowable for injury 
 by being thrown from horse, when rider rode him up to obstruction after being 
 once frightened; Cromer v. Logansport, 38 Ind. App. 671, 78 X. E. 1045, holding 
 burden of proof on defendant in cases involving question as to duty of plaintiff to 
 minimize damages whether action in contract or tort; Indiana Union Traction Co. 
 v. Ohne. 45 Ind. App. 635, 89 X. E. 507, holding that subsequent aggravation of 
 injury by party does not constitute contributory negligence; Viou v. Brooks- 
 Scanlon Lumber Co. 99 Minn. 104, 108 X. W. 89], 9 A. & E. Ann. Cas. 318, on 
 burden of defendant in action for personal injury to show amount of aggravation 
 due to malpractice in reduction of damages; Atkinson v. Fisher, 4 Xeb. (Unof.) 
 23, 93 X. W. 211) holding negligence of person injured may be taken into con- 
 sideration in determining damages and he cannot recover for damages avoidable 
 by reasonable and ordinary diligence. 
 
 Cited in footnotes to Maguire v. Slieehan. 59 L.R.A. 496. which sustains lia- 
 bility for entire injury through negligence, though shock brought on delirium 
 tremens, retarding recovery; Chicago City R. Co. v. Saxby, 68 L.R.A. 164. which 
 sustains right of injured person to recover for tuberculous condition of knee re- 
 sulting from injury, notwithstanding fact that tuberculosis was organic and mis- 
 takes in treatment. 
 
 Cited in note (49 L. R. A. 826, 827, 829, 830) on obeying or disobeying 
 physician as affecting remedy of injured person against one who injured him. 
 Qualification of juror*. 
 
 Cited in Michigan City v. Phillips, 163 Ind. 45o. 71 X. E. 20.">. holding jurors 
 who are made members of regular panel just before trial not subject to challenge 
 as jurors who have served within year under statute, though they have served 
 during same term; Mason v. State, 170 Ind. 197, 83 X. E. 613, holding sus- 
 taining of challenge of juror as having served within year by trial court raises 
 presumption that juror was not member of regular panel. 
 
 Cited in footnote to Reed v. Peacock. 49 L. R. A. 423, which holds Odd Fellow 
 not disqualified as juror in action by Odd Fellow of other lodge. 
 
 Distinguished in Brooks v. Jennings County Agri. Joint Stock Asso. 35 Ind, 
 App. 223, 73 X. E. 951, holding under later statute that juror, though membvr 
 of regular panel, may be challenged as having served within year. 
 
829 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 270 
 
 Evidence of subsequent precautions. 
 
 Cited in footnotes to Bemis v. Temple, 26 L. R. A. 254, which upholds right to 
 show effect on different horses of suspended flag; Georgia S. & F. R. Co. v. 
 Cardedge, 59 L. R. A. 118, which holds incompetent, evidence of additional 
 precautions after injury. 
 
 Cited in note (32 L.R.A.(N.S.) 1106, 1146) on admissibility of evidence of 
 condition before and after accident of property whose defects alleged to have 
 caused injury. 
 
 Disapproved in part in Terre Haute & I. R. Co. v. Clem, 123 Ind. 21, 7 L. R. A. 
 590, 18 Am. St. Rep. 303, 23 N. E. 965, holding evidence of subsequent repairs 
 inadmissible to show negligence. 
 
 IH-IViKla nt's knowledge of conditions as affecting liability for negli- 
 gence. 
 
 Cited in Cleveland, C. C. & St. L. R. Co. v. Loos, 38 Ind. App. 11, 77 N. E. 
 948 (dissenting opinion), on knowledge of defendant implied from prior occur- 
 rences and conditions, as basis of action for negligence. 
 Evidence of physician as to injury. 
 
 Cited in Allen v. Bear Creek Coal Co. 43 Mont. 283, 115 Pac. 673, holding that 
 evidence of attending physician as to character of injury is proper. 
 
 Cited in note (24 Am. St. Rep. 752) on evidence of physician as to character 
 of injury. 
 
 5 L. R. A. 259, UTAH MIX. & MFG. CO. v. DICKERT & M. SULPHUR CO. 6 
 
 Utah, 183.. 21 Pac. 1002. 
 Abandonment of mining claim. , 
 
 Cited in Lockhart v. Wills. 9 X. M. 270, 50 Pac. 318, holding evidence ot 
 wrongful ouster of locator of mining claim admissible on question of abandonment. 
 
 Cited in notes (87 Am. St. Rep. 412) on abandonment and forfeiture of min- 
 ing claims: (9 L.R.A. (X.S.) 1137) on effect of assessment work on mining claim 
 by one not owner of legal title to prevent forfeiture. 
 Relocation. 
 
 Cited in Thompson v. Burk, 2 Alaska, 253, holding agent, trustee, or other 
 person holding confidential relations with original locator, not permitted to 
 relocate mining claims and secure advantages to himself from breach of trust 
 obligations. 
 
 Cited in note (68 L.R.A. 836) on relocation of mining claim as abandoned or 
 forfeited. 
 
 5 L. R. A. 270, BOETTLER v. TEXDICK, 73 Tex. 488, 11 S. W. 497. 
 Arbitrator's decision as affecting recovery for vrorlc. 
 
 Cited in Electric Lighting Co. v. Elder Bros. 115 Ala. 152, 21 So. 983, holding 
 partv to whose satisfaction work is to be done must be dissatisfied in good faith: 
 Hanley v. Walker, 79 Mich. 615, 8 L. R. A. 209, 45 N. W. 57, holding architect's 
 certificate precedent to right of recovery, Collier v. Betterton, 8 Tex. Civ. App. 
 484, 29 S. W. 490, holding acceptance by architect of building binding upon 
 owner as to material and work; Childress v. Smith. 90 Tex. (il(i, 40 S. W. 389, 
 holding default in failing to pay as work progressed must be shown not to be 
 due to architect's fraudulent or wilful refusal to give certificate: Parlin & O. Co. 
 v. Greenville. 61 C. C. A. 597, 127 Fed. 61, holding committee's unreasonable 
 refusal to approve garbage furnace will not defeat recovery; Korbly v. Loomis, 
 172 Ind. 3.55, 88 X. E. 698, holding provision 6f contract making certificate 
 of architect or engineer condition precedent to assertion of right thereunder is 
 
5 L.R.A. 270] L. R. A. CASES AS AUTHORITIES. 83O 
 
 valid and claimant of such right must show by proper allegations, perform- 
 ance, waiver or valid reason for noncompliance with conditions; Boston Store 
 v. Schleuter, 88 Ark. 223, 114 S. W. 224, holding decision of architect concern- 
 ing manner of execution of work, necessity for changes in method of propping; 
 up walls, and all necessary alterations, binding on parties to contract; Carnegie 
 Public Library Asso. v. Harris, 43 Tex. Civ. App. 167, 97 S. W. 520, holding 
 where no fraud, or gross negligence on architect's part, final certificate of archi- 
 tect that contractor was entitled to amount sued for, entitled him to recover; 
 Kettler Brass Mfg. Co. v. O'Neil, 57 Tex. Civ. App. 571, 122 S. W. 900, hold- 
 ing that decision of architect is conclusive under contract binding parties by 
 "fair exercise of his judgment." 
 
 Cited in footnotes to Arnold v. Bournique, 20 L. R. A. 493, which holds con- 
 tractor entitled to payment on delivery of architect's certificate handed back with- 
 out presentation to owner; Spence v. Ham, 51 L. R. A. 238, which holds building 
 contract not substantially performed where structural defects created by omission 
 remediable only by partial reconstruction; Deyo v. Hammond, 25 L. R. A. 710, 
 which holds that failure to test speed of horses within time fixed will not relieve 
 from paying extra amount if other proof of requisite speed given. 
 
 Cited in note (17 L. R. A. 211) on promise to give full satisfaction; subject 
 to judgment of promisee. 
 
 Distinguished in Florida Athletic Club v. Hope Lumber Co. 18 Tex. Civ. App. 
 170, 44 S. W. 10, holding jurisdiction of court not ousted by agreement to 
 arbitrate; Eastham Bros. v. Blanchette, 42 Tex. Civ. App. 209, 94 S. W. 441,. 
 holding employer of architect, by provision making decision of architect final 
 on all questions of dispute between builder and owner of building is not pre- 
 sumed therefrom to intend to leave to final decision of architect question of ful- 
 fillment of architect's contract; Stewart v. Rutter, 48 Tex. Civ. App. 278, 107 
 S. W. 936, holding decision of architect not conclusive when not so provided in 
 contract and language tends to show absence of intention to make him final 
 arbiter. 
 Caring defective petition. 
 
 Cited in Par! in & O. Co. v. Hanson, 21 Tex. Civ. App. 402, 53 S. W. 62, holding 
 allegations in answer cured omission in petition. 
 Evidence of breach. 
 
 Cited in Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 30 L. R. A. 771, 53 Am. 
 St. Rep. 790, 33 S. W. 652, holding evidence to show work not according to con- 
 tract inadmissible in absence of fraud or mistake. 
 Measure of damages. 
 
 Cited in notes (6 L. R. A. 552 ; 11 L. R. A. 681) on measure of damages for 
 breach of contract. 
 Time as essence of contract. 
 
 Cited in footnote to Garrison v. Cooke, 61 L. R. A. 342, which holds time of 
 essence of subscription for cost of railroad in consideration of running of trains 
 by specified date. 
 Building: contracts. 
 
 Cited in notes (12 L. R. A. 502) on building contract; extra work; (8 L. R. A. 
 207) on building contracts: (10 L. R. A. 829) on performance of building con- 
 tract within given time; (9 L. R. A. 53) on "substantial compliance" with 
 building contract. 
 
 5 L. R. A. 276, BOOXE v. CLARK, 129 II!, 466, 21 N. E. 850. 
 
 Order of alienation ; compelling turtii>onnt creditor to resort to other 
 secnrity. 
 
 Cited in Monarch Coal & Min. Co. v Hand, 197 111. 290, 64 N. E. 381, Affirm- 
 
831 L. 11. A. CASES AS AUTHORITIES. [5 L.R.A. 276 
 
 ing 99 111. App. 324 holding rule of sale of lots in inverse order of alienation not 
 applicable when conveyance made subject to mortgage. 
 
 Cited in notes in 39 L.R.A. (X.S.) 361, on rule as to inverse order of alienation 
 as affected by assumption of mortgage; 39 L.R.A. (N.S.) 1000, on right of junior 
 to compel paramount creditor to resort primarily to property of third person. 
 When cross-bill necessary. 
 
 Cited in Gardner v. Cohn/191 111. 558, 61 N. E. 492, holding cross-bill properly 
 dismissed where, under original bill, court could determine priority of liens and 
 order distribution of funds accordingly; Boone v. Colehour, 50 111. App. 665, 
 holding cross-bill by subsequent encumbrancer unnecessary to enable him to 
 claim right to surplus; Powell v. Starr, 100 111. App. 107, holding junior encum- 
 brancer cannot participate in proceeds of mortgage sale without asking for 
 such relief by cross-bill; Dates v. Winstanley, 53 111. App. 631, holding right to 
 have lots sold in inverse order of alienation must be asserted by cross-bill ; 
 Boone v. Colehour, 165 111. 315, 46 N. E. 253, holding filing of cross-bill in 
 foreclosure proceedings before bar of note secured, which is dismissed, does not 
 prevent application of bar of laches to foreclosure suit begun after note barred; 
 Dunbar v. American Teleph. & Teleg. Co. 238 111. 489, 87 N. E. 521, hold- 
 ing cross-bill unnecessary to sustain grant of affirmative relief; but that dis- 
 missal of cross-bill is not adjudication that complainant has no rights in subject 
 matter of litigation. 
 Effect of assumption of debt. 
 
 Cited in Stites v. Thompson, 98 Wis. 331, 73 N. W. 774, holding assumption of 
 mortgage debt by purchaser makes him principal debtor. 
 
 Cited in notes (7 L. R. A. 34, 35) on personal liability for debt of vendee 
 assuming encumbrance; (8 L. R. A. 317) on mortgagor conveying premises sub- 
 ject to mortgage debt. 
 Subrogation. 
 
 Cited in footnote to Wyman v. Ft. Dearborn Nat. Bank, 48 L. R. A. 565, which 
 holds holder of check drawn by bank which becomes insolvent before presentation 
 entitled to subrogation to collateral held by drawee bank, which applies deposit 
 on own claims against drawer. 
 
 Cited in notes (13 L.R.A.619) on doctrine of subrogation; (68 L.R.A. 514) 
 on extinction of judgments against principals by sureties' payment. 
 Priority of liens. 
 
 Cited in footnote to Gray v. H. M. Loud & Sons Lumber Co. 54 L. R. A. 731, 
 which denies right of one having unrecorded contract for part of tract of land, 
 all of which is subsequently mortgaged, to cast burden of motrgage on subsequent 
 purchasers of remainder. 
 Rig-hts of niurtunu*-!'. 
 
 Cited in note (6 L. R. A. 612) on remedies of mortgagee on sale of mortgaged 
 premises. 
 Partnership in land deals. 
 
 Cited in MacDonald v. Dexter, 234 111. 522, 85 N. E. 209, holding agreement 
 to share in profits of sale of land does not create trust giving interest in land. 
 
 Cited in notes (8 L. R. A. 657) on partnership in real estate speculation; 
 (27 L. R. A. 456, 481) as to what real estate will be considered partnership 
 property. 
 Condition subsequent or precedent. 
 
 Cited in Waggoner v. Wabash R. Co. 185 111. 159, 56 N. E. 1050, holding 
 possession of railroad, lawful in inception, not wrongful because of failure to per- 
 form condition of erecting depot on land; O'Donnell v. Robson, 239 111. 636, 88 
 
5 L.R.A. 276] L. R. A. CASES AS AUTHORITIES. 832 
 
 X. E. 175, holding rights under condition subsequent or possibility of reverter 
 can be availed of only by grantors or their heirs, such right is unassignable and 
 does not pass by conveyance. 
 
 Cited in notes (60 L.R.A. 751) on transferability of right of entry for con- 
 dition broken; (79 Am. St. Rep. 750, 769) on what words create condition 
 subsequent. 
 Foreclosure upon separate propertied. 
 
 Cited in Nix v. Thackaberry, 240 111. 360, 88 X. E. 811, on separate decrees 
 for sale of different properties affected. 
 Construction of deeds. 
 
 Cited in South Penn Oil Co. v. Knox, 68 W. Va. 376, 69 S. E. 1020 (dissenting 
 opinion), on subsequent clause in deed summing up intention of parties as to 
 what shall pass, as controlling. 
 Description In deed. 
 
 Cited in Decker v. Stansberry, 249 111. 493, 94 X. E. 940.. Ann. Cas. 1912A, 
 227, holding that deed containing two descriptions will be construed most favor- 
 ably to grantee; Hornet v. Dumbeck, 39 Ind. App. 495, 78 X. E. 691, holding 
 particular description of land referred to as being all of certain tract not before 
 conveyed, conveys all not before conveyed, though tract be larger than that 
 covered by particular description. 
 Record of instrument. 
 
 Cited in Lowden v. Wilson, 233 111. 349, 84 X. E. 245, holding recording of 
 prior deed not notice to prior purchaser who has recorded his deed. 
 
 Cited in footnote to Gibson v. Thomas. 70 L.R.A. 768. which holds unrecorded 
 release of portion of property covered by mortgage by holder to mortgagor not 
 binding on subsequent assignee of mortgage without notice. 
 Marshalling assets of mortgagor. 
 
 Cited in note (18 Eng. Rul. Cas. 212) on marshalling assets of mortgagor. 
 Dedication of land by mortgagor. 
 
 Cited in note (31 L.R.A. (X.S. ) 1027) on dedication of land by mortgagor. 
 Right of third persons to take advantage of champerty. 
 
 Cited in note (35 L.R.A. (X.S.) 513, 514) on right of third persons to take 
 advantage of champerty. 
 
 5 L. R. A. 297, KXOX v. ARMSTEAD, 87 Ala. 511, 13 Am. St. Rep. 65, 6 So. 311. 
 Purchase by mortgagee or trustee. 
 
 Cited in Gamble v. Caldwell, 98 Ala. 579, 12 So. 424, holding conveyance to 
 agent of mortgagee on foreclosure of mortgage authorizing mortgagee to pur- 
 chase vests title in him as trustee, and supports action of ejectment against 
 mortgagor; Pollard v. American Freehold Land Mortg. Co. 103 Ala. 298, 16 
 So. .801, denying right of mortgagee at sale under power in mortgage, to pur- 
 chase, either directly or indirectly: Birmingham Xat. Bank v. Steele. 98 Ala. 
 91, 12 So. 783, holding creditor of mortgagor not entitled to disaffirm fore- 
 closure sale at which unauthorized mortgagee became purchaser : Etna Coal & I. 
 Co. v. Marting Iron & Steel Co. 61 C. C. A. 404, 127 Fed. 40. sustaining right of 
 trustees of corporate mortgage individually to purchase at own sale for bond- 
 holder's benefit; Drake v. Rhodes, 155 Ala. 502, 130 Am. St. Rep. 62, 46 So. 769, 
 holding stipulation in mortgage giving mortgagee privilege of becoming pur- 
 chaser is valid. 
 
 Cited in notes (16 Am. St. Rep. 58; 92 Am. St. Rep. 580) on purchase by 
 mortgagee at sale under power. 
 
833 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 298 
 
 Mortgagor's right to Bet aside. 
 
 Cited in Alexander v. Hill, 88 Ala. 488, 16 Am. St. Rep. 55, 7 So. 238, holding 
 infant heirs of mortgagor, on attaining majority, may disaffirm purchase by 
 mortgagee without power on foreclosure sale during infancy; American Freehold 
 Land Mortg. Co. v. Pollard, 120 Ala. 7, 24 So. 736, holding mortgagor's only right 
 after purchase by unauthorized mortgagee at foreclosure sale, is by suit in 
 equity to disaffirm; Mason v. American Mortg. Co. 124 Ala. 348, 26 So. 900, 
 holding lapse of four years after foreclosure sale at which unauthorized mortgagee 
 became purchaser sufficient laches to bar suit by mortgagor to rescind. 
 Mortgagee's right to compel election. 
 
 Cited in American Freehold Land Mortg. Co. v. Sewell, 92 Ala. 169, 13 L. R. A. 
 300, 9 So. 143, holding mortgagee purchasing on foreclosure entitled to bill to 
 compel mortgagor to elect to ratify or disaffirm sale, where mortgage governed 
 iby local law though mortgage notes usurious at place of payment. 
 Ratification. 
 
 Cited in Montgomery v. Crossthwait, 90 Ala. 572, 12 L. R. A. 144, 24 Am. St. 
 Rep. 832, 8 So. 498, holding that waiver of protest and notice by indorser after 
 alteration of note by maker ratifies alteration. 
 Right of redemption as inseparable to mortgage. 
 
 Cited in note (18 Eng. Rul. Cas. 365) on right of redemption as inseparable 
 to attempt to mortgage. 
 
 5 L. R. A. 298, GRAVES v. SMITH, 87 Ala. 450, 13 Am. St. Rep. 60, 6 So. 308. 
 Party wall. 
 
 Cited in Huston v. De Zeng. 78 Mo. App. 531, holding parties, each owner in 
 severally of so much of wall as stands upon his land, subject to cross easement 
 in favor of neighbor; Springer v. Darlington, 207 111. 244, 69 N. E. 946, holding 
 that party wall means solid wall. 
 
 Cited in footnote to Burr v. Lamaster, 9 L. R. A. 637, which holds party wall 
 and agreement to pay for same on using it, an encumbrance. 
 
 Cited in note (89 Am. St. Rep. 928, 930) on party walls. 
 Right to heighten. 
 
 Cited in Tate v. Fratt, 112 Cal. 618, 44 Pac. 1061, holding party wall may be 
 heightened by joint owner where no injury results to adjoining building; Bellenot 
 v. Laube, 104 Va. 847, 52 S. E. 698, holding one owner may carry wall up to 
 necessary height for his purposes, and action will not lie by his adjacent owner 
 to compel its removal. 
 
 Distinguished in Barry v. Edlavitch, 84 Md. 112, 33 L. R. A. 296, 35 Atl. 170, 
 holding prescriptive right to use wall wholly on neighbor's land gives no right to 
 prevent his rebuilding and heightening same, with windows in addition, where 
 no injury to support. 
 Right to insert irindorrs In. 
 
 Cited in Fidelity Lodge, No. 59, I. O. O. F. v. Bond, 147 Ind. 442, 45 N. E. 338, 
 holding that windows may not be inserted in addition to party wall on heighten- 
 ing same, though flues and chimneys may be built in; Weems v. Mayfield, 75 Miss. 
 294, 22 So. 892, enjoining cutting of windows in party wall at a height above 
 complainant's structure; Everly v. Driskill, 24 Tex. Civ. App. 421, 58 S. W. 
 1046, holding convenience to defendant and absence of injury to complainant 
 do not justify opening windows in party wall ; Dunscomb v. Randolph, 107 Tenn. 
 101. 89 Am. St. Rep. 915, 64 S. W. 21, holding party permitting neighbor to cut 
 windows in party wall at considerable expense estopped to interrupt enjoyment in 
 .absence of evidence of damage or desire to use wall; Normille v. Gill, 159 Mass. 
 L.R.A. Au. Vol. 1. 53. 
 
5 L.R.A. 298] L. R. A. CASES AS AUTHORITIES. 834 
 
 428, 38 Am. St. Rep. 441, 34 N. E. 543, denying right of one party to make open- 
 ings in party wall for windows; Coggins v. Carey, 106 Md. 214, 10 L.R.A. (X.S.) 
 1197, 124 Am. St. Rep. 468, 66 Atl. 673, holding opening of windows in party 
 wall may be enjoined and mandatory injunction may issue requiring spaces 
 opened to be closed; Keifer v. Dickson, 41 Ind. App. 549, 84 N. E. 523, holding 
 presence or absence of windows not infallible test of party wall, but their pres- 
 ence good indication that it is not party wall. 
 
 Cited in footnote to Harber v. Evans, 10 L. R. A. 41, which authorizes injunc- 
 tion against making openings in party wall. 
 
 Cited in note (10 L.R.A. (N.S.) 1191) on right to open windows, or apertures, 
 in party wall. 
 Other incidents of ownership. 
 
 Cited in Merchants Bank v. Foster, 124 Ala. 698, 27 So. 515, holding joint 
 owner of wall not liable to contribution for repairs in absence of contract: 
 Lederer v. Colonial Invest. Co. 130 Iowa, 160, 106 N. W. 357, 8 A. & E. Ann. 
 Cas. 317, holding statute did not intend adjoining owners should own wall in 
 common and be thereby entitled to extend joists or timbers into wall beyond 
 its center. 
 
 Cited in footnotes to Putzell v. Drovers' & M. Nat, Bank, 22 L. R. A. 632, 
 which upholds right to remove boundary wall each part of w y hich is owned in 
 several ty, for erection of better one at expense of one removing; Mott v. Oppen- 
 heimer, 17 L. R. A. 409, which construes as running with the land agreement for 
 party wall expressly declared to run with land; Clemens v. Speed, 19 L. R. A. 
 240, which denies to party-wall owners reciprocal easement of support of build- 
 ings. 
 
 5 L. R. A. 300, NEW HAVEN WIRE CO. CASES, 57 Conn. 352, 18 Atl. 266. 
 Conditional sales. 
 
 Cited in Mack v. Story, 57 Conn. 414, 18 Atl. 707, holding title in vendor as 
 against attaching creditor of vendee, where goods purchased under agreement 
 reserving title to vendor until sale by vendee; First Nat. Bank v. Alton, 60 
 Conn. 407, 22 Atl. 1010, holding indorser of promissory note given, on its face, 
 in pursuance of sale reserving title to vendor until payment, liable as guarantor 
 merely, since note not negotiable; Faisst v. Waldo, 57 Ark. 274, 21 S. W. 436, 
 holding vendor of oxen under contract reserving title until payment by services, 
 valid conditional sale; Triplett v. Mansur & T. Implement Co. 68 Ark. 234, 82 
 Am. St. Rep. 284, 57 S. W. 261, holding agreement in conditional sale reserving 
 title to vendor, that vendee should sell as property of vendor, valid even as 
 against innocent purchaser for value; Standard Implement Co. v. Parlin & 0. 
 Co. 51 Kan. 546, 33 Pac. 360, holding that vendor in conditional sale may recover 
 possession of property from mortgagee of vendee, whose mortgage secures only 
 prior indebtedness; National Cash Register Co. v. Lesko, 77 Conn. 278, 58 Atl. 
 967, holding conditional sale may be made by instrument signed by vendee only : 
 Peasley v. Noble, 17 Idaho, 693, 27 L.R.A. (N.S.) 218, 134 Am. St. Rep. 270, 107 
 Pac. 402, holding purchaser from conditional vendee under contract empowering 
 such vendee to sell obtains good title; Re E. W. Newton & Co. 83 C. C. A. 23, 
 153 Fed. 844, holding that in Arkansas contract of conditional sale is valid, 
 though containing provision that vendee may sell property in usual course of 
 business. 
 
 Cited in footnote to Feeley v. Boyd, 65 L.R.A. 943, which holds immediate 
 delivery followed by actual and continued change of possession of fruit in bins 
 shown by purchaser sending representative the same evening to take possession, 
 and sending man the next morning to prepare for shipment. 
 
835 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 300 
 
 Cited in notes (12 L. R. A. 703) on conditional sale; (12 L. R. A. 447) on sale 
 of personal property on instalment plan; (134 Am. St. Rep. 281) as to when a 
 person holding property under conditional sale may transfer a perfect title; (23 
 Eng. Rul. Cas. 348) on presumption as to passing of title where goods are not 
 in deliverable state. 
 Priorities in insolvents' estates. 
 
 Cited in Re Waddell-Entz Co. 67 Conn. 333, 35 Atl. 257, holding creditor se- 
 cured by additional obligations of debtor entitled to share in insolvent estate only 
 in proportion to actual claim ; Re E. S. Greeley & Co. 7t) Conn. 498, 40 Atl. 233, 
 holding creditor refusing to release foreign garnishment not equitably entitled to 
 prior claim against insolvent's estate, although garnishee subsequently also 
 insolvent. 
 Attachments. 
 
 Cited in Longstaff v. Hurd, 66 Conn. 360, 34 Atl. 91, holding attachments 
 levied after appointment of receiver invalid. 
 
 Distinguished in Central Trust Co. v. Worcester Cycle Mfg. Co. 114 Fed. 662, 
 holding attachment not dissolved by appointment of receiver in suit to foreclose 
 mortgage. 
 Mortg-ag-es. 
 
 Cited in Re Wilcox & H. Co. 70 Conn. 232, 39 Atl. 163, holding chattel mort- 
 gage, not recorded until after receiver takes possession of debtor's property t 
 invalid as to him; Newtown Sav. Bank v. Lawrence, 71 Conn. 365, 41 Atl. 1054,. 
 holding real-estate mortgage unrecorded for two years prior to insolvency cannot 
 be foreclosed after appointment of receiver. 
 Receivers. 
 
 Cited in Betts v. Connecticut L. Ins. Co. 76 Conn. 377, 56 Atl. 617, holding 
 receiver, for certain purposes, represents both corporation and its creditors and 
 may enforce, under direction of court, whatever rights it or they have against 
 president arising out of subscription for stock by president. 
 
 Cited in note (6 L. R. A. 793) on receiver as officer of court. 
 Potvers of majority stock owner. 
 
 Cited in Chase v. Michigan Teleph. Co. 121 Mich. 634, 80 N. W. 717, denying 
 power of corporation owning nearly entire stock of other company to act for 
 latter company in purchasing its property and franchises. 
 I-ialiilities of stockholders. 
 
 Cited in Barrows v. Natchaug Silk Co. 72 Conn. 665, 45 Atl. 951, holding stock- 
 holder whose subscription obtained by fraud of which he is presumptively aware 
 cannot repudiate liability after lapse of several years, on insolvency of corpora- 
 tion. 
 Advances to finance purchase or upon bill of lading:. 
 
 Cited in Re Cattus, 106 C. C. A. 171, 183 Fed. 735, to the point that banker 
 who advances money on bills of lading will be protected as having title to goods 
 covered by bill; Mather v. Gordon, 77 Conn. 344, 59 Atl. 424, holding right to 
 exclusive possession of potatoes and right of property in them as security for 
 money advanced obtained by discounting draft accompanied by bill of lading; 
 Moors v. Drury, 186 Mass. 425, 71 N. E. 810, holding banker making advances 
 to merchant upon goods imported by latter, and retaining title is owner and 
 not mortgagee or pledgee; Re E. Reboulin Fils & Co. 165 Fed. 348, holding 
 banker who makes advances on goods imported by merchant and obtains bills 
 of lading which he afterwards gives to merchant taking back trust receipt allow- 
 ing latter to sell does not lose title to goods. 
 
5 L.R.A. 300] L. R. A. CASES AS AUTHORITIES. 836 
 
 Criticized in Charavay v. York Silk Mfg. Co. 170 Fed. 822, holding bank 
 which advances money for purchase of goods, lets purchaser have them upon 
 trust receipt, and then takes goods back and sells them, is entitled to claim 
 difference between amount advanced and amount realized by sale. 
 Defective formation of corporations. 
 
 Cited in note (33 Am. St. Rep. 186) on defective formation of corporations. 
 Recovery of property obtained by fraud. 
 
 Cited in note (26 Am. St. Rep. 569) on recovery of property obtained by fraud. 
 
 5 L. R. A. 315, COOTS v. DETROIT, 75 Mich. 628, 43 N. W. 17. 
 Duty to keep streets in safe condition. 
 
 Cited in Kansas City v. McDonald, 60 Kan. 489, 45 L. R. A. 432, 57 Pac. 123, 
 holding municipality liable for injury to fireman caused by unguarded pile of 
 building material left in street by abutting owner. 
 
 Cited in notes (103 Am. St. Rep. 275; 20 L.R.A.(N.S.) 748) on liability of 
 municipality for defects or obstructions in streets. 
 Who are fellow servants. 
 
 Cited in Hanna v. Granger, 18 R. I. 508, 28 Atl. 659, holding flagman and 
 engineer of steam street roller, both in employ of city, fellow servants. 
 
 Cited in notes (5 L. R. A. 735) on who are fellow servants; (18 L. R. A. 794) 
 on what constitutes common employment. 
 Contribntory negligence. 
 
 Cited in Grand v. Michigan C. R. Co. 83 Mich. 575, 11 L. R. A. 406, 47 N. W. 
 837 (dissenting opinion), majority holding brakeman guilty of contributory 
 negligence in attempting to perform duties at switch which he knew was not 
 blocked in accordance with law. 
 
 Cited in note (11 L. R. A. 34) on care required of traveler on highway. 
 Provision for injured fireman as exemption of mnncipality from lia- 
 bility. 
 
 Cited in Kansas City v. McDonald, 60 Kan. 485, 45 L. R, A. 431, 57 Pac. 123, 
 holding municipal liability for injury caused by negligent condition of street not 
 affected by fact that amount of insurance policy provided by city was collected 
 by insured. 
 Effect of repeal of statute on cause of action. 
 
 Cited in footnote to Tufts v. Tufts, 16 L. R. A. 482, which holds cause of action 
 for divorce not taken away by repeal of statute. 
 Excessive damages on appeal. 
 
 Cited in Brockmiller v. Industrial Works, 148 Mich. 649, 112 N. W. 688, 
 holding whether damages found by jury excessive not question of law where 
 there was evidence upon which to base verdict of jury, and motion for new 
 trial on ground of excessiveness not made. 
 
 Cited in note (26 L. R. A. 395) on power of appellate court to interfere with 
 verdict for excessive damages. 
 
 Distinguished in McDonald v. Champion Iron & Steel Co. 140 Mich. 413, 103 
 N. W. 829, holding rule that question whether damages found by jury are exces- 
 sive is not one of law is inapplicable where parent seeks recovery for value of 
 services of son and can recover only amount of his prospective earnings until 
 he would become of age, less what it would cost to support him. 
 Existence of relation of master and servant. 
 
 Cited in note (22 Am. St. Rep. 478) as to when relation of master and 
 servant exists. 
 
837 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 323 
 
 5 L. R. A. 323, FRAME v. FRAME, 32 W. Va. 463, 9 S. E. 901. 
 PoNMeftgion as notice. 
 
 Cited in Xorman v. Bennett, 32 W. Va. 624, 9 S. E. 914, holding purchaser of 
 property in possession of one claiming title adverse to vendor cannot resist 
 suit for specific performance against such vendor by heirs of possessor, as pur- 
 chaser without notice; Urpman v. Lowther Oil Co. 53 W. Va. 513, 97 Am. St. 
 Rep. 1027, 44 S. E. 433, holding that purchaser of equitable interest in land in 
 third person's possession, takes what title vendor has; Nuttall v. McNey, 63 
 W. Va. 383, 60 S. E. 251, holding actual possession under title bond notice of 
 rights of persons under that title and sufficient to put one on inquiry of those 
 in possession to ascertain all their rights; Pippin v. Richards, 146 Wis. 74, 130 
 N. W. 872, holding that continued possession by grantor after conveyance pro- 
 cured by fraud in constructive notice to purchaser from fraudulent vendee. 
 
 Cited in notes (15 L.R.A. 68) on nature of title or estate of holder of sheriff's 
 certificate before obtaining deed; (13 L.R.A.(N.S.) 123; 104 Am. St. Rep. 332; 
 
 II Eng. Rul. Cas. 548) on possession as notice of title. 
 Specific performance of oral contract. 
 
 Cited in Goodwin v. Bartlett, 43 W. Va. 335, 27 S. E. 325, refusing relief on 
 oral contract to devise realty where promisee never in possession, though services 
 performed thereon; Young v. Crawford, 82 Ark. 45, 100 S. W. 87, holding pos- 
 session and improvements made insufficient, under the evidence, to give right to 
 compel performance of parol gift; Maas v. Anchor F. Ins. Co. 148 Mich. 434, 
 
 III X. W. 1044. holding parol gift of land followed by possession and improve- 
 ments makes donee equitable owner; Re Henderson, 142 Fed. 574, holding under 
 West Virginia cases reasonable certainty in establishment of verbal agreement 
 does not mean mathematical certainty, but that evidence must leave court satis- 
 fied and convinced as to terms of agreement, and must be so definite as to guide 
 court safely in carrying it into execution; Henderson v. Henrie, 68 W. Va. 565, 
 34 L.R.A.(N.S.) 631, 71 S. E. 172, Ann. Cas. 1912B, 318, holding that verbal 
 contract to sell land is not enforcible unless some collateral circumstance, con- 
 stituting an independent equity, exists. 
 
 Cited in footnotes to Kofka v. Rosicky, 25 L. R, A. 207, which upholds right 
 to specific performance of oral contract wholly performed by one party and 
 partly by other; Russell v. Briggs, 53 L. R. A. 556, which holds superintendence 
 of repairs on building, etc., insufficient to take out of statute of frauds, oral 
 agreement to convey interest in land to be received in exchange; Graves v. Gold- 
 thwait, 10 L. R. A. 763, which refuses specific performance of oral agreement by 
 cotenant to convey interest in land; Hodges v. Rowing, 7 L. R. A. 87, which 
 holds contract enforceable against purchaser though not signed by vendor; Cof- 
 fey v. Emigh, 10 L. R. A. 127, which holds fair, reasonable, and just contract 
 enforceable when both parties able to perform. 
 
 Cited in note (8 L.R.A. (X.S.) 872) on possession as ground for specific per- 
 formance of parol gift of, or contract to convey, realty. 
 
 Distinguished in Crim v. England, 46 W. Va. 487, 76 Am. St. Rep. 826, 33 S. 
 E. 310, holding donee entitled to conveyance of legal title where, in reliance on 
 gift, he has gone into possession, erected houses, planted orchard, and placed 
 land under cultivation; Miller v. Lorentz, 39 W. Va. 172, 19 S. E. 391, holding 
 vendee under specific oral contract entitled to relief, where possession complete 
 and continued, and vendor insolvent; Ansell v. Cox, 57 W. Va. 569, 50 S. E. 
 806, where no parol contract for purchase appeared. 
 Kiuli ts of possessor. 
 
 Cited in Xuttall v. McVey, 63 W. Va. 384, 66 S. E. 251, holding possession 
 under title bond gives right to enforce performance not barred by time. 
 
5 L.R.A. 334} L. R. A. CASES AS AUTHORITIES. 838 
 
 5 L. R. A. 334, ALDERSOX v. KANAWHA COUNTY, 32 W. Va. 640, 25 Am. 
 
 St. Rep. 840, 9 S. E. 868. 
 Jurisdiction in election cases. 
 
 Cited in Brown v. Randolph County Court, 45 W. Va. 834, 32 S. E. 165, holding 
 that equity disclaims jurisdiction in cases of contested elections; Weaver v. 
 Toney, 107 Ky. 435, 50 L. R. A. 109, footnote p. 105, 54 S. W. 732, holding that 
 court of equity cannot interfere by injunction in matters relating to elections; 
 Morgan v. County Court, 53 W. Va. 376, 44 S. E. 182, holding that mandamus lies 
 to compel court to declare result of vote on county seat relocation. 
 
 Cited in footnote to State ex rel. McCaffery v. Aloe, 47 L. R. A. 393, which 
 denies right to injunction to protect purely political right of citizen as voter. 
 
 Cited in note (42 Am. St. Rep. 236) on jurisdiction of equity over elections. 
 Jurisdiction in contempt proceedings. 
 
 Cited in McMillan v. Hickman, 35 W. Va. 713, 14 S. E. 227, holding order 
 discharging rule for contempt not reviewable on chancery appeal; State ex rel. 
 Bettman v. Harness, 42 W. Va. 415, 26 S. E. 270, holding court awarding in- 
 junction has jurisdiction of contempt proceeding for disobedience. 
 Nature of contempt proceeding's. 
 
 Cited in State v. Cunningham, 33 W. Va. 611, 11 S. E. 76, holding contempt 
 proceeding criminal in its nature, entitling respondent to presumption of inno- 
 cence and conformity to official duty. 
 Distinction between law and equity. 
 
 Distinguished in State v. Blair, 63 W. Va. 640, 60 S. E. 795, holding judgment 
 at law entered in book for chancery proceedings not void. 
 
 5 L. R. A. 340, RIGGS v. PALMER, 115 N. Y. 506, 12 Am. St. Rep. 819, 22 N. 
 
 E. 188. 
 Construction of statutes. 
 
 Cited in Lynip v. Buckner, 22 Nev. 440. 30 L. R. A. 357, 41 Pac. 762; Opinion 
 of the Justices, 66 N. H. 657, 33 Atl. 1076; State v. Brown. 7 Wash. 13. 34 Pac. 
 132; Board of Education v. Brown, 12 Utah, 272, 42 Pac. 1109; People ex rel. 
 Gentilesco v. Excise Board, 7 Misc. 417, 27 N. Y. Supp. 983; People ex rel. 
 Eakins v. Roosevelt, 12 Misc. 624, 24 N. Y. Supp. 228; Allen v. Stevens. 22 
 Misc. 175, 49 N. Y. Supp. 431; Hurst v. New York, 55 App. Div. 73, 67 X. Y. 
 Supp. 84; People ex rel. Bagley v. Hamilton, 25 App. Div. 430, 49 N. Y. Supp. 
 605, holding thing within intention of law makers part of statute; McDowall 
 v. Sheehan, 129 N. Y. 207, 29 X. E. 299, holding word "creditors" not to include 
 directors in statute providing for personal liability of stockholders; People 
 ex rel. Huntington v. Crennan. 141 N. Y. 244, 36 N. E. 187, holding that what- 
 ever is necessarily implied in statute is part thereof; People ex rel. Manhattan 
 R. Co. v. Barker, 152 X. Y. 447, 46 N. E. 875, holding decision of assessors not 
 finding of fact within meaning of restrictions on appeals; People ex rel. Onon- 
 daga County Sav. Bank v. Butler, 147 N. Y. 169, 41 N. E. 416, holding that 
 law makers' intention is to be gathered from whole statute, and sometimes from 
 statutes in para materia ; Kittredge v. Peekskill, 23 N.Y. Supp. 801, holding that 
 power in act to extend limits of villages incorporated applied to those incorpo- 
 rated under such act; Armstrong v. Combs, 15 App. Div. 240. 44 X. Y. Supp. 
 171, holding thing within letter not within statute if contrary to its intention; 
 Welt-man v. Posenecker, 19 Misc. 593, 44 X. Y. Supp. 406, holding that spirit 
 of law is above mere cavil about words: Browning v. Collis, 21 Misc. 157. 47 
 X. Y. Supp. 76, holding clear intent of statute should be given effect, although 
 conveyed in imperfect language: Kc McCutcheon, 25 Misc. 651, 56 X. Y. Supp. 
 370, holding whole law must be examined to determine whether part of prior 
 
839 L. R. A. CASES AS AUTHORITIES. 5 L.R.A. 340 
 
 law is repealed by implication by new section; Re Labrake, 29 Misc. 88, 60 X. 
 Y. Supp. 571, holding that statutes should be rationally construed so as to 
 prevent consummation of injustice; Morgan v. Hedstrom, 164 X. Y. 230, 58 X. E. 
 26, holding that act making corporation directors personally liable for corpo- 
 ration's debts for defaults should be liberally construed as to meaning of debts; 
 Beley v. Naphtaly, 169 U. S. 360, 42 L. ed. 777, 18 Sup. Ct. Rep. 354, constru- 
 ing act to "quiet titles" through grants from Mexican government not to re- 
 quire proof of actual grant; Gabel v. Williams, 39 Misc. 495, 80 N. Y. Supp. 
 489, holding service of written notice to redeem from tax sale necessary before 
 ouster of occupant; O'Shea v. Lehigh Valley R. Co. 79 App. Div. 256, 79 N. Y. 
 Supp. 890, denying right of father, as administrator, to recover for son's death, 
 to which farmer's negligence contributed; Donahue v. Keeshan, 91 App. Div. 
 606, 87 N. Y. Supp. 144, holding word "officer" in New York charter does 
 not relate to policeman; Rhinehart v. Redfield, 93 App. Div. 414, 87 N. Y. 
 Supp. 789, holding ordinance granting right to lay pipes in street for benefit of 
 limited number void; Walden v. Jamestown, 178 N. Y. 216, 70 N. E. 466, hold- 
 ing service of notice seventy-two hours after accident compliance with ordinance 
 requiring service within forty-eight hours, when severe pain caused delay; State 
 ex rel. Hay v. Hindson, 40 Mont. 356, 106 Pac. 362, holding intention of law 
 makers is to be ascertained, if possible, and when ascertains controls; Re Avery, 
 45 Misc. 535, 92 N. Y. Supp. 974, holding legislature intended to prohibit ap- 
 pointment of certain classes of persons as executors by statute providing they 
 were incompetent to serve as such; O'Reilly v. Brooklyn Heights R. Co. 95 App. 
 Div. 261, 89 N. Y. Supp. 41, holding burden of carrying passengers through for 
 one fare intended to go with statutory privilege of railways to consolidate; VVelk 
 v. Jackson Architectural Iron \Yorks, 98 App. Div. 252, 90 N. Y. Supp. 541 
 (dissenting opinion), on testing statutes enlarging scope of common law by con- 
 sidering what legislature would say if acquainted with situation presented by 
 case in hand; Dieterich v. Fargo, 119 App. Div. 320, 104 N. Y. Supp. 334 (dis- 
 senting opinion) ; People ex rel. Erie R. Co. v. Railroad Comrs. 105 App. Div. 
 276, 93 X. Y. Supp. 584, on rule thing within letter is not within spirit of 
 statute if contrary to its intention; Wightman v. Catlin, 113 App. Div. 29, 98 
 N. Y. Supp. 1071, holding statute prohibiting attorneys from buying claims for 
 purpose of suing thereon not intended to deprive attorneys of privileges accorded 
 other men in purchase of claims; Re Evans, 113 App. Div. 374, 98 N. Y. Supp. 
 1042, applying test of asking law maker, supposedly present, if he intended to 
 comprehend given case and holding statute requires that acts sufficient to revoke 
 will be actually done, not merely directed to be done; Re Hertle, 120 App. Div. 
 723, 105 N. Y. Supp. 765 (dissenting opinion), on ground and cause of making 
 statute as explanatory of its intent; People v. Sturgis, 121 App. Div. 408, 106 
 X. Y. Supp. 61, holding provision of statute not within spirit of enactment is 
 not part of law and is to be disregarded; Re Board of Rapid Transit R. Comrs. 
 128 App. Div. 107, 112 N. Y. Supp. 619, holding thing within intention of statute 
 is within statute, though exact literal construction would exclude it; People ex 
 rel. Hunt v. Lane, 132 App. Div. 408, 116 X. Y. Supp. 990, holding thing within 
 letter of statute not within statute unless within intention of makers; Territory 
 ex rel. Albuquerque v. Pinney, 15 X. M. 633, 114 Pac. 367; Hicks v. Krigbaum, 
 13 Ariz. 241, 108 Pac. 482, to the point that things which is within letter of 
 statute is not with'n statute unless it be within intention of makers; Moody 
 v. McKinney, 73 S. C. 441, 53 S. E. 543, holding that horse and buggy taken, 
 without owner's knowledge, to transport liquors at night is not subject to con- 
 fiscation. 
 
 Annotation cited in State v. Heffernan, 24 S. D. 12, 25 L.R.A. (X.S.) 887, 140 
 
5 L.R.A. 340] L. R. A. CASES AS AUTHORITIES. 840 
 
 Am. St. Rep. 764, 123 N. W. 87, to the point that things necessarily implied in 
 statute are substantial part thereof. 
 
 Cited in notes (10 L.R.A. 841) on strict construction of statutes in derogation 
 of common law; (30 Am. St. Rep. 265) on construction of statutes; (30 Am. 
 St. Rep. 775) on meaning of word "may" in statute; (14 Eng. Rul. Cas. 833) 
 on rules for interpretation of statute. 
 Wrongrdoer profiting: by His own wrong;. 
 
 Cited in Holmes v. Davenport, 27 Abb. N. C. 347, 18 N. Y. Supp. 56, holding 
 that proceeds of life insurance policy belong to partnership, premiums having 
 been paid with embezzled partnership funds; Simcox's Estate, 15 Pa. Co. Ct. 
 388, holding that widow, party to lorgery of will, cannot object to payment of 
 counsel fees out of her share in estate; State v. Hope, 100 Mo. 359, 8 L. R. A. 
 613, 13 S. W. 490, holding constitutional, statute permifting verdict where de- 
 fendant is wilfully and voluntarily absent; Hannig v. Mueller, 82 Wis. 242, 52 
 N. W. 98, holding it doubtful whether equity would be justified in confirming 
 fraud of trustee for his daughter's benefit; Clinton County v. Davis, 64 L. R. A. 
 780, denying vote buyer's right to reward for information concerning sale of 
 votes; Staub v. Myers, 16 App. Div. 479, 44 N. Y. Supp. 954 (dissenting opin- 
 ion), majority holding money acquired in gambling game "not wrongfully taken 
 and detained" within law authorizing order of arrest therefor; Phillips v. Chase, 
 203 Mass. 566, 30 L.R.A.(N.S.) 166, 89 N. E. 1049, 17 A. & E. Ann. Cas. 544, 
 holding procurement by father of adoption of his son by father's wife, in order 
 to secure his wife's property for his son, so that he himself might profit thereby 
 sufficient to bring case within doctrine that wrongdoer cannot profit by his own 
 wrong; Murray v. Interurban Street R. Co. 118 App. Div. 37, 102 N. Y. Supp. 
 1026, holding jury could not consider wages paid for placing bets in fixing 
 amount of damages; Ingraham v. Phillips, 133 App. Div. 902, 117 N. Y. Supp. 
 165 (dissenting opinion), on rule against permitting party to take advantage 
 of his own wrong. 
 
 Cited in footnotes to Wolf v. Youbert, 21 L. R. A. 772, which holds firm not 
 prevented from recovering debt by using misleading or improper firm name; 
 Hahn v. Bettingen, 50 L. R. A. 669, which denies right of one suing for breach 
 of promise to recover for loss from breaking previous engagement to other man 
 at defendant's request; Clinton County Comrs. v. Davis, 64 L.R.A. 780, which 
 holds that a vote buyer cannot claim the reward offered by statute to one fur- 
 nishing information resulting in conviction of person selling vote. 
 
 Cited in notes ( 5 L. R. A. 693 ) on estoppel ; ( 25 L. R. A. 564 ) on how far stat- 
 utes will be regarded as having abrogated the maxim that one cannot profit 
 by his own wrong. 
 
 Distinguished in Lewin v. Lehigh Valley R. Co. 52 App. Div. 76, 65 N. Y. Supp. 
 49, holding father, although guilty of contributory negligence, may recover for 
 killing of his child; State ex rel. Ketcham v. Terre Haute & I. R. Co. 166 Ind. 
 583, 77 N. E. 1077, holding courts will not hear and determine charge of fraud 
 and corruption to annul or supply legislative action; Roche v. Nason, 185 N. 
 Y. 136, 77 N. E. 1007, Affirming 105 App. Div. 267, 93 N. Y. Supp. 565, holding 
 principle that law will not permit person to acquire property as result of his 
 own crime inapplicable to case of one actuated by intention to commit suicide 
 in making his will. 
 
 Disapproved in Collins v. Metropolitan L. Ins. Co. 232 111. 42. 14 L.R.A.(N.S.) 
 359, 122 Am. St. Rep. 54, 83 N. E. 542, 13 A. & E. Ann. Cas. 129, holding 
 execution of assured for crime no defense to action upon life insurance policy, 
 in absence of stipulation exempting company from liability for death from this- 
 cause. 
 
S41 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 340 
 
 By committing- murder. 
 
 Cited in Re Fleming, 16 Misc. 444, 38 N. Y. Supp. 611, holding application 
 for remainderman suspended until after trial for murder of life tenant; Schmidt 
 v. Northern Life Asso. 112 Iowa, 45, 51 L. R. A. 144, 84 Am. St. Rep. 323, 83 
 N. W. 800, holding murder of assured by beneficiary forfeits right of recovery 
 by assignee of children of beneficiary as heirs; Wellner v. Eckstein, 105 Minn. 
 449, 117 N. W. 830 (dissenting opinion), as to whether murderer can inherit 
 interest in property of person he kills; Gollnik v. Mengel, 112 Minn. 352, 128 
 N. W. 292, holding that under statute heir may inherit even though death of 
 ancestor was caused by wilful criminal act of heir; Perry v. Strawbridge, 209 
 Mo. 633, 16 L.R.A.(N.S.) 248, 123 Am. St. Rep. 510, 108 S. W. 641, 14 A. & E. 
 Ann. Gas. 92, holding husband who murders his wife cannot inherit part of 
 her estate; Logan v. Whitley, 129 App. Div. 670, 114 N. Y. Supp. 255, holding 
 representative of wife entitled to recover amount given wife by antenuptial con- 
 tract in lieu of her dower and distributive share of personalty, to be paid upon 
 husband's death if she survived, where husband shot wife and committed suicide. 
 
 Cited in footnotes to Holdom v. Ancient Order of U. W. 31 L. R. A. 67, which 
 holds policy not forfeited by killing of insured by insane beneficiary; New York 
 L. Ins. Co. v. Davis, 44 L. R. A. 305, which holds only assignee's interest in 
 policy forfeited by his murder of insured. 
 
 Cited in notes (3 L.R.A. (N.S.) 729) on homicide as affecting devolution of 
 property; (34 L.R.A. (N.S.) 967) on murderer of testator as legatee. 
 
 Distinguished in Ellerson v. Westcott, 148 N. Y. 153, 42 N. E. 540, Revers- 
 ing 88 Hun, 391, 34 N. Y. Supp. 813, holding will not invalidated by testator's 
 murder by devisee; McAllister v. Fair, 72 Kan. 537, 3 L.R.A. (NJ3.) 731, 115 
 Am. St. Rep. 233, 84 Pac. 112, 7 A. & E. Ann. Cas. 973, holding husband who 
 murdered his wife not prevented by his crime from inheriting her property; 
 McKinnon v. Lundy, 21 Ont. App. Rep. 563, holding one guilty of manslaughter 
 not prevented from taking as heir or devisee of person killed. 
 
 Distinguished and criticized in Lanier v. Box, 112 Tenn. 406, 64 L.R.A. 463, 
 footnote 458, 79 S. W. 1042, holding one murdering wife deprived of common-law 
 right to her property. 
 
 Disapproved in Shellenberger v. Ransom, 41 Neb. 637, 25 L. R. A. 571, 59 
 N. W. 935, Reversing on rehearing 31 Neb. 69, 10 L. R. A. 812, 28 Am. St. Rep. 
 500. 47 N. W. 700, holding that murderer does not forfeit inheritance from 
 murdered daughter; Carpenter's Estate, 170 Pa. 210, 29 L. R. A. 149, 36 W. N. 
 C. 519, 50 Am. St. Rep. 765, 32 Atl. 637, Affirming 1 Lack. Legal News 162, 
 holding son not deprived of right of inheritance because he murders his 
 father to secure it. 
 Power of court to grant final relief. 
 
 Cited in Mixsell v. New York, N. H. & H. R. Co. 22 Misc. 82, 49 N. Y. Supp. 
 413, upholding court's power to dismiss complaint after setting aside a verdict. 
 Right to maintain partition. 
 
 Cited in Drake v. Drake, 61 App. Div. 9, 70 N. Y. Supp. 163, holding person 
 -entitled to possession as tenant in common may maintain partition proceeding. 
 Revocation of will. 
 
 Cited in footnotes to Re Hulett, 34 L. R. A. 384, which holds will not re- 
 voked by marriage alone; Miles's Appeal, 36 L. R. A. 176, which holds erasure 
 of specific legacy from will not revocation of such legacy; Ingersoll v. Hopkins, 
 40 L. R. A. 191, which holds will giving testator's property to woman, made 
 executor, revoked by testator's subsequent marriage to her; Hudnall v. Ham, 4S 
 Xu R. A. 557, which holds widow precluded from contesting husband's will 
 
5 L.R.A. 340] L. R. A. CASES AS AUTHORITIES. 842 
 
 by antenuptial contract agreeing to release all interest in his estate; Glascott 
 v. Bragg, 56 L. R. A. 258, which holds will in favor of third person revoked by 
 marriage and adoption of child; Billington v. Jones. 56 L. R. A. 654, which 
 holds will revoked by writing on it statement that it is void, and that it is 
 killed, and filing it away; Re Kelly, 56 L. R. A. 754, which holds woman's 
 will not revoked by subsequent marriage; Cutler v. Cutler, 57 L. R. A. 209, 
 which holds will revoked by adopting mutilations by vermin; Re Teopfer, 67 
 L.R.A. 315, which holds antenuptial will revoked by testator's marriage; Re 
 Xewlin, 68 L.R.A. 464, which holds sufficient provision for unborn child to sus- 
 tain will made by establishing remainder to be divided among children and a 
 fee to be divided among or held in trust for them on arriving at maturity. 
 
 Cited in note (7 L. R. A. 486) on revocation, revival, and republication of will. 
 Dae process of law. 
 
 Cited in Williams v. Port Chester, 97 App. Div. 100, 89 N. Y. Supp. 671, hold- 
 ing on the fundamental principles of jurisprudence as an element of ''due process 
 of law/' 
 
 5 L. R. A. 349, HILL v. PORT ROYAL & W. C. R. CO. 31 S. C. 393, 10 S. E. 91. 
 
 Action against county in Hill v. Laurens County, 34 S. C. 141, 13 S. E. 318. 
 Oh n 11 we In location, of highway. 
 
 Cited in note (26 L. R. A. 829) on discontinuance or vacation of highway by 
 acts of public authorities. 
 Proximate cause of injury. 
 
 Cited in Land v. Southern R. Co. 67 S. C. 294, 45 S. E. 203, denying recovery 
 where proof shows flagman killed by train other than one alleged. 
 
 Cited in footnote to McAnally v. Pennsylvania R. Co. 47 L. R. A. 788, which 
 denies right of recovery for loss of leg by one thrown down by man in effort to 
 save him from dangerous position near track. 
 
 Cited in notes (6 L. R. A. 143) on imputing negligence of one person to an- 
 other; (7 L. R. A. 132) on regarding proximate and not remote cause of in- 
 jury; (36 Am. St. Rep. 845) on proximate and remote cause. 
 
 5 L. R. A. 352, STATE, RILEY, PROSECUTOR, v. TRENTON, 51 N. J. L. 498, 
 
 18 Atl. 116. 
 Power of municipality to punish acts also state offenses. 
 
 Cited in note (17 L.R.A. (N.S.) 54) on power of municipality to punish act 
 also an offense under state law. 
 City excise departments. 
 
 Cited in State, Davis, Prosecutor, v. Cherry, 53 N. J. L. 174, 20 Atl. 825. 
 holding excise commissioners without power to provide for fee to city clerk or 
 salaried inspectors; State v. Dudgeon, 83 Neb. 378, 119 N. W. 676, sustaining 
 provision in charter giving rules of excise board when duly adopted and pub- 
 lished, like force and effect as ordinances adopted by city council. 
 Legislative delegation of power. 
 
 Cited in Schwarz v. Dover, 70 N. J. L. 505, 57 Atl. 394, holding delegation 
 of power not authorized by statute authorizing common council to determine 
 in its discretion whether excise board ought to be established. 
 
 Cited in notes (20 L.R.A. 724) on delegation of municipal power as to 
 license; (11-1 Am. St. Rep. 299) on delegation of power to municipality to 
 regulate dealing in intoxicating liquors. 
 Right to jury trial. 
 
 Cited in Loeb v. Jennings, 333 Ga. 805, 67 S. E. 101, holding trial of person 
 
843 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 359 
 
 by recorder without jury and sentence to work on streets or other public works 
 of city does not constitute lack of due process. 
 
 Cited in footnote to Re Kinsel, 56 L. R. A. 475, which denies right to jury 
 trial in prosecution for violating city ordinance. 
 
 5 L. R. A. 353, ABSECOM MUTUAL LOAN & BLDG. ASSO. v. LEEDS, 50 N. 
 
 J. L. 399, 18 Atl. 82. 
 Indorsement. 
 
 Cited in Cadwallader v. Hirshfeld, 62 N. J. L. 749, 72 Am. St. Rep. 671, 42 
 Atl. 1075, holding that on mere indorsement of note prior to that of payee, no 
 liability to payee arises; Lowry v. Tivy, 69 N. J. L. 96, 54 Atl. 521, holding 
 extrinsic evidence admissible to show what was contract of parties to notes of 
 individual partner indorsed in firm name; Elliott v. Moreland, 69 N. J. L. 217, 
 54 Atl. 224, holding irregular indorsement of note by married woman before its 
 acceptance by payee does not per se import contract by her; Lowry v. Tivy, 70 
 N. J. L. 458, 57 Atl. 267, holding notes made before new Negotiable Instruments 
 Act of 1902 governed by decision in cited case. 
 
 Cited in notes (14 Am. St. Rep. 794) on indorsers and indorsements; (72 
 Am. St. Rep. 683) on effect of indorsement by stranger before delivery; (4 Eng. 
 Rul. Cas. 551) on presumptive order of liability among parties to bill or note. 
 
 5 L. R. A. 357, ARNOLD v. CARPENTER, 16 R. I. 560, 18 Atl. 174. 
 Resale of property. 
 
 Distinguished in McKiernan v. Valleau, 23 R. I. 506, 51 Atl. 102, sustaining 
 vendor's right to resell property bought at auction, after vendee's failure to com- 
 plete contract. 
 
 5 L. R. A. 359, Re GANNON, 16 R. I. 537, 27 Am. St. Rep. 759, 18 Atl. 159. 
 Due process of law. 
 
 Cited in Carr v. Brown, 20 R. I. 219, 38 L. R, A. 296, 78 Am. St. Rep. 855, 38 
 Atl. 9, holding statute authorizing administration on estate of person not heard 
 from in seven years, void; Modern Loan Co. v. Police Ct. 12 Cal. App. 592, 108 
 Pac. 56, holding provisions of statute authorizing magistrate to adjudicate right 
 to possession of personal property without notice to person from whose pos- 
 session it was taken or who claims title void. 
 
 Cited in footnote to Gulf, C. & S. F. R. Co. v. Ellis, 17 L. R. A. 286, which up- 
 holds act authorizing attorneys' fees against railroad corporations in suits on 
 claims. 
 
 Cited in notes (11 L. R. A. 225; 13 L. R. A. 68) on what constitutes due proc- 
 ess of law. 
 Commitment of incompetent persons. 
 
 Cited in Re Dowdell, 169 Mass. 389, 61 Am. St. Rep. 290, 47 N. E. 1033, up- 
 holding statute for commitment of insane, which does not take away control of 
 property or right to determine necessity of confinement; Porter v. Ritch, 70 
 Conn. 256, 39 L. R. A. 359, 39 Atl. 169, sustaining order for temporary con- 
 finement of person alleged to be insane; People ex rel. Ordway v. St. Saviour's 
 Sanitarium, 34 App. Div. 372, 56 N. Y. Supp. 431, holding ex parte final com- 
 mitment of inebriate woman to private sanitarium, invalid; Re Lambert, 134 
 Cal. 634, 55 L. R. A. 860, 86 Am. St. Rep. 296, 66 Pac. 851, holding statute for 
 commitment, without notice, of person alleged to be insane, void; Ex parte 
 Scudamore, 55 Fla. 227, 46 So. 279, holding statutes requiring personal presence 
 of subject of inquiry as to sanity provide sufficient notice; Re Allen, 82 Vt. 372, 
 26 L.R.A. (X.S. i 238, 73 Atl. 1078, holding permanent confinement for insanity 
 
5 L.R.A. 359] L. Px. A. CASES AS AUTHORITIES. 844 
 
 lawful only when in pursuance of judgment of court of competent jurisdiction 
 after alleged insane person has had sufficient notice and adequate opportunity 
 to defend; Ke Boyett, 136 N. C. 423, 67 L.R.A. 976, 103 Am. St. Rep. 944, 48 
 S. E. 789, 1 A. & E. Ann. Cas. 729, holding invalid statute providing person 
 acquitted of capital felony and committed to hospital cannot be released except 
 by act of legislature; People ex rel. Peabody v. Chanler, 196 N. Y. 525, 25 
 L.R.A. (N.S.) 950, 89 N. E. 1109, Affirming on opinions below 133 App. Div. 
 164, 117 N. Y. Supp. 322, which holds right to institute judicial proceedings 
 under statutes sufficient protection of liberty of insane person committed to 
 asylum after acquittal of crime on ground of insanity. 
 
 Cited in note (43 Am. St. Rep. 532, 540) on due process of law as applied to 
 insane persons. 
 
 Distinguished in Re Crosswell, 28 R. I. 141, 66 Atl. 55, 13 A. & E. Ann. 
 Cas. 874, sustaining law giving power to confine insane person on commitment 
 by parent guardian or relative only until he chooses to apply to court for relief. 
 
 Disapproved in Re Clark, 86 Kan. 553, 39 L.R.A. (N.S.) 686, 121 Pac. 492, 
 holding that statute relating to confinement of person acquitted of crime because 
 insane, is not unconstitutional. 
 
 5 L. R. A. 361, OLNEY v. CONANICUT LAND CO. 16 R. I. 597, 27 Am. St. Rep. 
 
 767, 18 Atl. 181. 
 Preferences by corporations. 
 
 Cited in Ingwersen Bros. v. Edgecombe, 42 Neb. 744, 60 N. W. 1032, and 
 Hays v. Citizens' Bank, 51 Kan. 540, 33 Pac. 318, holding that directors must 
 share ratably with other creditors in distribution of insolvent corporation's 
 assets; Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co. 86 Tex. 162, 22 
 L. R. A. 815, 24 S. W. 16, holding that insolvent corporation cannot prefer cred- 
 itors; Munson v. Genesee Iron & Brass Works, 37 App. Div. 206, 56 N. Y. Supp. 
 139, holding mortgage by corporation in contemplation of insolvency assailable 
 by one who has obtained a judgment for damages by tort; Corey v. Wadsworth, 
 99 Ala. 76, 23 L. R. A. 621, 42 Am. St. Rep. 29, 11 So. 350; W. P. Noble Mercan 
 tile Co. v. Mt. Pleasant Equitable Co-op. Inst. 12 Utah, 232, 42 Pac. 869; Howe. 
 B. & Co. v. Sanford Fork & Tool Co. 44 led. 233, holding mortgage by in- 
 solvent corporation to secure directors on liability as indorsers, invalid as to 
 general creditors; Taylor v. Mitchell, 80. Minn. 496, 83 N. W. 418, holding in- 
 solvent corporation directors cannot prefer themselves over other creditors ; 
 Nappanee Canning Co. v. Reid, M. & Co. 159 Ind. 634, 59 L. R. A. 205, 64 N. E. 
 1115 (dissenting opinion), majority holding insolvent corporation creditors 
 may prefer their own unsecured claims; City Nat. Bank v. Goshen Woolen Mills 
 Co. 35 Ind. App. 577, 69 N. E. 206, holding directors or officers of insolvent 
 corporation not permitted to be preferred as creditors, or to prefer themselves. 
 
 Cited in notes (45 Am. St. Rep. 835; 57 Am. St. Rep. 78) on preferences 
 by insolvent corporations. 
 Directors as trustees. 
 
 Cited in Hutchison v. Rock Hill Real Estate & Loan Co. 65 S. C. 64, 43 S. 
 E. 295, holding that directors hold assets of corporation as trustees for 
 stockholders. 
 
 Cited in footnote to Stewart v. Harris, 66 L.R.A. 261, which holds managing 
 officers of corporation not only trustees of corporate entity and corporate prop- 
 erty but also to some extent for corporate shareholders. 
 
 Cited in notes (36 L. ed. U. S. 1079) on fiduciary relations of officers and 
 their dealings with corporate property; (7 Eng. Rul. Cas. 643) on directors 
 as trustees. 
 
845 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 367 
 
 5 L. R. A. 364, O'REILLY v. NEW YORK & N. E. R. CO. 16 R. I. 389, 17 Atl. 
 
 906. 
 Pleading statute of another state; necessity for. 
 
 Cited in Taylor v. Slater, 21 R. I. 105, 41 Atl. 1001, requiring statutes of an- 
 other state to be pleaded; McKnight v. Oregon Short Line R. Co. 33 Mont. 42, 
 82 Pac. 661, holding statute of sister state must be pleaded and proved as fact 
 by party relying thereon; Moore v. Pywell, 29 App. D. C. 317, 9 L.R.A. (N.S.) 
 1078, 35 Wash. L. Rep. 225, holding that courts of District of Columbia will 
 take judicial notice of Maryland statute, in action thereunder for wrongful 
 death. 
 Statutory causes of action; when penal. 
 
 Cited in Matheson v. Kansas City, Ft. S. & M. R. Co. 61 Kan. 670, 60 Pac. 
 747, holding statute providing for forfeiture of fixed sum for negligently caus- 
 ing death, penal; Raisor v. Chicago & A. R. Co. 215 111. 55, 106 Am. St. Rep. 
 153, 74 N. E. 69, 2 A. & E. Ann. Cas. 802, Affirming 117 111. App. 488, holding 
 foreign statute providing for forfeiture without proof of damage of given sum 
 by railroad for every passenger whose death was caused by its negligence, penal 
 and not enforceable. 
 
 Cited in note (19 Eng. Rul. Cas. 56) on liability for injury due to neglect 
 of statutory precautions. 
 
 Distinguished in Gardner v. New York & N. E. R. Co. 17 R. I. 792, 24 
 Atl. 831, holding statute giving astion for, and limiting recovery to, loss sus- 
 tained by negligence, not penal; Aylsworth v. Curtis, 19 R. I. 523, 33 L. R. A. 
 112, 61 Am. St. Rep. 785, 34 Atl. 1109, holding action for twice value of stolen 
 article not restored, not penal. 
 Snrvivability of action. 
 
 Cited in footnote to Perkins v. Stein, 20 L. R. A. 861, which holds survivable, 
 action for negligently driving over person. 
 
 Cited in note (5 L.R.A.(N.S.) 757) on law governing as to survival of cause 
 of action or revival of action for personal injuries. 
 Right to sue in other state. 
 
 Cited in Hancock Nat. Bank v. Farnum, 20 R. I. 471, 40 Atl. 341, holding ac- 
 tion to enforce stockholder's liability not maintainable in other state; Connor 
 v. New York, N. H. & H. R. Co. 28 R. I. 562, 18 L.R,A.(N.S.) 1256, 68 Atl. 
 481, 13 A. & E. Ann. Cas. 1033, holding where foreign statute creates cause 
 of action for death by wrongful act similar to that given by domestic statute 
 action is maintainable in domestic jurisdiction. 
 
 Cited in notes (15 L. R. A. 584) on rights of action for causing death ac- 
 cruing under foreign statute; (56 L. R. A. 210, 222) on conflict of laws as to 
 action for death for bodily injury; (1 Eng. Rul. Cas. 545) on right of action 
 in favor of subject for cause arising in other country notwithstanding alleged 
 proceedings in such country. 
 Plea in abatement. 
 
 Cited in Providence v. McDonough, 24 R. I. 499, 53 Atl. 866, as a proper case 
 for sustaining a plea in abatement. 
 
 5 L.R.A. 367, LEHIGH AYE. R. CO.'S APPEAL, 129 Pa. 405, 18 Atl. 498. 
 
 Followed without discussion in 129 Pa. 421, 18 Atl. 414. 
 Limitation of corporate Indebtedness. 
 
 Cited in Morimura, A. & Co. v. Traeger, 8 Northampton Co. Rep. 6, holding 
 excess of indebtedness over capital stock, rendering director liable, does not em- 
 
5 L.R.A. 367] L. R. A. CASES AS AUTHORITIES. 846 
 
 brace actions arising ex delicto; Morimura, A. & Co. v. Tracger, 31 Pa. Dist. 
 R. 381, holding limitation of indebtedness to amount of capital stock paid in 
 applies only to fund designated in corporate charter, contributed by stockholders 
 for prosecution of business of company. 
 
 Cited in note (111 Am. St. Rep. 329) on implied power of corporations to 
 borrow money and give evidence of indebtedness and security therefor. 
 What Is actual capital stock. 
 
 Cited in Stemple v. Bruin, 57 Fla. 179, 49 So. 151, holding that actual capital 
 stock of corporation is amount of its authorized capital that has been subscribed 
 for and paid in. 
 Par value of stock. 
 
 Distinguished in Smith v. State, 99 Miss. 875, 35 L.R.A.(N.S.) 792, 56 So. 
 179, holding that par value of stock means face value plus amount of accrued 
 interest. 
 
 5 L. R. A. 370, BELL v. WILSON, 52 Ark. 171, 12 S. W. 328. 
 Fraudulent deed. 
 
 Cited in Doster v. Manistee Nat. Bank, 67 Ark. 328, 48 L. R. A. 335, 77 
 Am. St. Rep. 116, 55 S. W. 137, to point that fraudulent deed is good inter 
 partes; Parrott v. Crawford, 5 Ind. Terr. 112, 82 S. W. 688, holding transfer, 
 though fraudulent, divests grantor of all right, title or interest he may have in 
 the property. 
 
 Cited in note (67 L.R.A. 889) on effect on legal title of conveyance of land 
 in fraud of creditors. 
 
 5 L. R. A. 371, ARBENZ v. WHEELING & H. R. CO. 33 W. Va. 1, 10 S. E. 14. 
 Easement in street. 
 
 Cited in Yates v. West Grafton, 34 W. Va. 787, 12 S. E. 1075, holding author- 
 ized use of street by railroad not an abandonment or perversion of the ease- 
 ment; Hardman v. Cabot, 60 W. Va. 667, 7 L.R,A.(N.S.) 510, 55 S. E. 756, 9 
 Ann. Cas. 1030, holding additional burden not imposed on highway by use 
 thereof for pipe line. 
 
 Cited in note (36 L.R.A. (N.S.) 684) on abutter's right to compensation for 
 railroads in streets. 
 Taking: fee. 
 
 Cited in Watson v. Fairmont & Suburban R. Co. 49 W. Va. 539, 39 S. E. 193, 
 holding authorized construction of railroad in street not a taking of ad- 
 joining owner's fee. 
 Power of municipal corporation. 
 
 Cited in Clarksburg Electric Light Co. v. Clarksburg, 47 W. Va. 743, 50 L. 
 R. A. 148, 35 S. E. 994, holding municipal corporation has no power to grant 
 an exclusive franchise to an electric light company. 
 
 Cited in footnote to Chicago G. W. R. Co. v. First M. E. Church, 50 L. R. A. 
 488, which holds water tank in street and station at which bells constantly 
 rung and whistles blown within few rods of church, a nuisance. 
 
 Cited in notes (9 L. R. A. 101) on grant of franchise to street railroads; (8 
 L. R. A. 453) on right of street railway to construct and operate its line. 
 Statutory construction. 
 
 Cited in O'Donnell v. Preston, 74 App. Div. 87, 77 N. Y. Supp. 305, holding 
 word "along" in prohibition against constructing sidepath "upon or along" any 
 sidewalk indicates superimposition, and does not mean "alongside of." 
 
847 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 378 
 
 Injunctlve relief. 
 
 Cited in Ohio River R. Co. v. Gibbens, 35 W. Va. 59, 12 S. E. 1093, and Ward 
 v. Ohio River R. Co. 35 W. Va. 485, 14 S. E. 142, holding owner cannot enjoin 
 railroad construction unless value of his property totally destroyed; Watson v. 
 Fairmont & Suburban R. Co. 49 W. Va. 540, 39 S. E. 193, holding authorized 
 railroad cannot be enjoined as a public nuisance and special injury; Edwards v. 
 Thrash, 26 Okla. 479, 138 Am. St. Rep. 975, 109 Pac. 832, holding that injunc- 
 tion does not lie to prevent municipality from paving dedicated street, until 
 abutting owner has been paid for damages caused by change of grade; Uhl v. 
 Ohio River R. Co. 56 W. Va. 503, 68 L.R.A. 143, 107 Am. St. Rep. 968," 49 S. 
 E. 378, 3 A. & E. Ann. Cas. 201, on absence of power of court to enjoin or control 
 construction of work of internal improvement authorized by law; Clayton v. 
 County Co. 58 W. Va. 262, 2 L.R.A.(N.S.) 602, 52 S. E. 103, holding "semble 
 that injunction to prevent establishment of public road is not supported by 
 private easement in alley whereon road is located; Wheeling & E. G. R. Co. v. 
 Triadelphia, 58 W. Va. 502, 4 L.R.A.(N.S.) 330, 52 S. E. 499, holding though 
 citizen have special interest in sense of being damaged by exercise of power to 
 establish roads, if property is not actually taken, but only injured, he has no 
 power to interfere and must resort to action at law for damages; Hardman v. 
 Cabot, 60 W. Va. 667, 7 L.R.A.(N.S.) 510, 55 S. E. 756, 9 A. & E. Ann. Cas. 
 1030, holding injunction will not lie for rightful occupation of road unless in- 
 jury amounts to virtual taking; Jackson v. Big Sandy & C. R. Co. 63 W. Va. 
 22, 129 Am. St. Rep. 955, 59 S. E. 749, holding subjection of private property 
 to uses and purposes of common carrier amounts to taking thereof within 
 meaning of constitution, for prevention of which equity interposes by injunction. 
 
 Cited in note (28 L.R.A. (X.S. ) 1083) on preventive remedy of nonconsenting 
 abutting owner where use of highway for street railway authorized by public. 
 Effect of legislative authority on liability for nuisance. 
 
 Cited in note (1 L.R.A. (N.S.) 94, 132) on effect of legislative authority upon 
 liability for private nuisance. 
 
 5 L. R. A. 378, ROUSE v. MERCHANTS' NAT. BANK, 46 Ohio St. 493, 15 Am. 
 St. Rep. 644, 22 N. E. 293. 
 
 Followed without discussion in Sayler v. Simpson, 46 Ohio St. 510, 24 N. E. 
 596. 
 Preference by insolvent 
 
 Cited in Farmers' Nat. Bank v. Miller, 9 Ohio C. C. 113, holding mortgage by 
 insolvent debtor to wife inures to benefit of all creditors. 
 By insolvent corporation. 
 
 Cited in Meisse v. Loren, 4 Ohio N. P. 104, to point that corporation cannot 
 prefer creditors; Re Home Mut. Aid Asso. 3 Ohio N. P. 150, holding that in- 
 solvent association cannot prefer matured certificate holders; Benedict v. Mar- 
 ket Xat. Bank, 4 Ohio N. P. 233, holding that corporation cannot give creditor 
 a secret inchoate preference; Thompson v. Huron Lumber Co. 4 Wash. 605, 30 
 Pac. 741, holding that the directors of an insolvent corporation cannot create 
 a voluntary preference; Commercial Nat. Bank v. Burch, 40 111. App. 515, 
 holding directors of insolvent corporation, trustees of its funds which they 
 may not give away or appropriate: Biddle Purchasing Co. v. Port Townsend Steel 
 Wire & Nail Co. 16 Wash. 693, 48 Pac. 407, holding insolvent corporation can- 
 not prefer a creditor by mortgage executed for security for antecedent debt: 
 Benedict v. Market Nat. Bank, 19 Ohio C. C. 410. 10 Ohio C. D. 506, holding 
 invalid judgment note given by corporation for purpose of creating preference 
 in case of insolvency. 
 
5 L.R.A. 378] L. PL A. CA*ES AS AUTHORITIES. 848 
 
 Cited in notes (45 Am. St. Rep. 826; 57 Am. St. Rep. 77; 22 L.R.A. 804) on 
 preferences by insolvent corporations. 
 
 Distinguished in Damarin v. Huron Iron Co. 47 Ohio St. 589, 26 X. E. 37. 
 upholding mortgage executed by insolvent corporation to obtain extension of 
 credit: First Nat. Bank v. McKinney, 16 Ohio C. C. 84, holding insolvent for- 
 eign corporation may give judgment note to be enforced in foreign state, and 
 assign accounts to resident creditor; Re George D. Winchell Mfg. Co. 1 Ohio 
 X. P. 138, holding judgment taken just before assignment on cognovit note giv- 
 en nearly two months before by corporation valid; Ford v. Lamson, 17 Ohio 
 C. C. o43, upholding payment by insolvent corporation transacting business. 
 in absence of collusion or knowledge by creditor; Adams & W. Co. v. Deyette, 8 
 S. D. 142, 31 L. R- A. 506, 59 Am. St. Rep. 751. 65 X. W. 471 (dissenting opin- 
 ion), majority holding insolvent corporation without right to prefer creditors: 
 Carter Cattle Co. v. McGillin, 21 Ohio C. C. 213, 11 Ohio C. D. 415, Affirming 
 7 X. P. 584, 10 Low D. 163, holding that where Ohio corporation carries on its 
 entire business in another state, the question of giving references in case of 
 insolvency, is governed by the laws of such state. 
 
 Questioned in Gould v. Little Rock, M. R. & T. R, Co. 52 Fed. 684, and Weyeth 
 Hardware & Mfg. Co. v. James- Spencer-Bateman Co. 15 Utah, 132, 47 Pac. 604 r 
 holding insolvent corporation may, in absence of statute, prefer creditors. 
 
 Disapproved in Warren v. First Nat. Bank, 149 m. 28, 25 L. R, A. 752. 38 
 X. E. 122, holding mere insolvency does not deprive directors of right to dispose 
 of corporate property in good faith, though preference to creditors results. 
 Of officer or director. 
 
 Cited in W. P. Noble Mercantile Co. v. Mt. Pleasant Equitable Co-op. Inst. 
 12 Utah, 232, 42 Pac. 869, holding directors of insolvent corporation cannot 
 prefer themselves over other creditors; Howe. B. & Co. v. Sanford Fork & Tool 
 Co. 44 Fed. 233, holding public policy forbids directors of insolvent corporation 
 from securing preferences; Ingwersen Bros. v. Edgecombe, 42 Xeb. 744, 60 N. 
 W. 1032, holding directors and officers of an insolvent private corporation can- 
 not secure preference; James Clark Co. v. Colton, 91 Md. 214, 49 L. R, A. 705, 
 46 Atl. 386, holding insolvent bank cannot pay a debt to an officer or director 
 in preference to debts due to others; Goodyear Rubber Co. v. George D. Scott 
 Co. 96 Ala. 442, 11 So. 370, holding director of insolvent corporation cannot 
 prefer an indebtedness on which he is also liable; Tobin Canning Co. v. Fraser, 
 81 Tex. 413, 17 S. W. 25, holding director of insolvent corporation cannot pur- 
 chase its property for less than its value; City Xat. Bank v. Goshen Woolen 
 Mills Co. 35 Ind. App. 577, 69 X. E. 206. holding directors or officers of insol- 
 vent corporation not permitted to be preferred as creditors or to prefer them- 
 selves. 
 
 Cited in footnotes to Olney v. Conanicut Land Co. 5 L. R. A. 361, which holds 
 directors cannot prefer debts due to themselves; Hill v. Pioneer Lumber Co. 21 
 L. R. A. 560, which denies right of director to obtain preference; Corey v. Wads- 
 worth, 44 L. R. A. 782, which holds insolvent corporation may prefer creditor, 
 although a stockholder, director or officer. 
 While going concern. 
 
 Applied in Smith Middlings Purifier Co. v. McGroarty, 136 U. S. 241. 34 L. 
 ed. 348, 10 Sup. Ct. Rep. 1017, holding insolvent trading corporation which has 
 ceased to do business cannot by mortgage prefer creditors. 
 
 Cited in Remington v. Central Press Asso. Co. 3 Ohio X. P. 260. holding insolv- 
 ent corporation cannot prefer creditors by mortgage, although transacting 
 business; Coler v. Allen, 52 C. C. A. 392. 114 Fed. 612, holding insolvent corpora- 
 tion may. in good faith, while a going concern, execute mortgage to secure exten- 
 
849 L. R, A. CASES AS AUTHORITIES. [5 L.R.A. 378 
 
 sion and further advance; Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co. 
 86 Tex. 160, 22 L. R. A. 814, 24 S. W. 16, holding insolvent corporation, no 
 longer carrying on business, without implied power to give preferences; Ford 
 v. Lamson, 17 Ohio C. C. 544, upholding levy on property of insolvent corpora- 
 tion transacting business, in absence of collusion. 
 In transfer by foreigrn corporation. 
 
 Cited in Bryant v. Johnson, 12 Ohio C. C. 103, holding transfer of property 
 in state by insolvent foreign corporation to foreign creditor voidable, but not 
 void; Nathan v. Lee, 152 Ind. 238, 43 L. R, A. 824. 52 N. E. 987, holding deci- 
 sion will not be followed in Indiana to invalidate preferential mortgage upon 
 land in Indiana executed by insolvent Ohio corporation to Ohio creditors; First 
 Nat. Bank v. McKinney, 16 Ohio C. C. 84, in which petition to have transfer 
 by insolvent foreign corporation declared void considered as equitable action 
 based on main case; Hall v. Ohio & W. Coal & I. Co. 24 Ohio L. J. 310, 11 Ohio 
 Dec. Reprint, 72, holding that corporation chartered in another state may make 
 deed of assignment for benefit of all its creditors which will pass title to real 
 property in Ohio. 
 
 Cited tn note (17 L. R, A. 85) on conflict of laws as to assignments to cred- 
 itors. 
 AM ground of attachment. 
 
 Cited in Stone v. Lorain Sav. & Bkg. Co. 8 Ohio C. C. 639, holding wrongful 
 preference by corporation of one creditor not ground for attachment by another. 
 Trust fund theory. 
 
 Cited in Brown, B. & Co. v. Lake Superior Iron Co. 134 U. S. 534, 33 L. ed. 
 1024, 10 Sup. Ct. Rep. 604, in support of contention that property of insolvent 
 corporation is trust fund which a court of equity should interfere to preserve; 
 Cheney v. Maumee Cycle Co. 20 Ohio C. C. 22, holding property of insolvent cor- 
 poration trust fund for creditors; Meisse v. Loren, 4 Ohio N. P. 101, holding cap- 
 ital stock of corporation trust fund for creditors; Philips v. Ammon-Stevens Co. 
 2 Ohio X. P. 189, holding property of insolvent corporation trust fund, and 
 preferential transfer void; Conover v. Hull, 10 Wash. 684, 45 Am. St. Rep. 
 810, 39 Pac. 166. holding stock and property of insolvent corporation a trust 
 fund which it cannot divert by preferring creditors; Cincinnati Equipment Co. 
 v. Degnan, 107 C. C. A. 158, 184 Fed. 843, holding that where receiver of cor- 
 poration is appointed in creditor's suit, he holds the property in trust for 
 creditors: Everhardt v. United States Invest. & Redemption Co. 8 Ohio N. P. 
 530. 11 Ohio S. & C. P. Dec. 697, on insolvent corporation which has quit doing 
 business, as holding its property in trust for the creditors. 
 
 Cited in note (42 Am. St. Rep. 767) on corporate assets as a trust fund. 
 
 Distinguished in Alberger v. National Bank, 123 Mo. 324, 27 S. W. 657, hold- 
 ing that insolvency alone does not impress upon corporate property a trust for 
 creditors generally. 
 
 Disapproved in John V. Farwell Co. v. Sweetzer, 10 Colo. App. 424, 51 Pac. 
 1012, holding assets of insolvent corporation are not trust fund for equal distri- 
 bution, but that bona fide preferences may be made. 
 Equitable lien of creditors. 
 
 Cited in Farmers' Loan & T. Co. v. Canada & St. L. R. Co. 127 Ind. 250, 11 
 L. R. A. 748, 26 N. E. 784, to point that creditors may have general equitable 
 lien upon funds of insolvent corporation. 
 
 Distinguished in Farmers' Loan & T. Co. v. Canada & St. L. R, Co. 127 Ind. 
 271. 11 L. R. A. 748, 26 N. E. 784. holding general equitable lien of creditors of 
 insolvent corporation cannot defeat specific liens upon the property. 
 L.R.A. Au. Vol. I. 54. 
 
5 L.R.A. 378] L. E. A. CASES AS AUTHORITIES. . 850 
 
 Action against directors. 
 
 Cited in Meisse v. Loren, 5 Ohio N. P. 308, upholding right of creditor and 
 stockholder of insolvent bank to sue directors for gross negligence; Zinn v. Bax- 
 ter, 17 Ohio C. C. 288, holding trust relation between shareholder and directors 
 ceases on sale of stock, and former cannot thereafter sue latter. 
 Appointment of receiver. 
 
 Cited in Cheney v. Maumee Cycle Co. 64 Ohio St. 213, 60 N. E. 207, holding 
 order appointing receiver of insolvent corporation includes real estate; Whit- 
 ney v. Hanover Nat. Bank, 71 Miss. 1020, 23 L. R. A. 534, 15 So. 33, holding 
 decree in suit by general creditors appointing receiver for insolvent bank which 
 had surrendered assets to chancellor, who had appointed receiver, not subject to 
 collateral attack. 
 Powers of directors and trustees of corporation. 
 
 Cited in Arbuckle v. Woolson Spice Co. 21 Ohio C. C. 369, 11 Ohio C. D. 734, 
 on rights and duties of directors of corporation as to its property; In re Em- 
 press Josephine Toilet Co. (Dissolution of) 1 Ohio N. P. N. S. 23, 13 Ohio S. 
 
 6 C. P. Dec. 663, holding invalid, note of insolvent corporation given by director 
 thereof in payment of his personal debt, though the amount was due him for 
 salary, but he owed for assessment upon stock; Mansfield v. Cincinnati Ice Co. 
 28 Ohio L. J. 115, 11 Ohio Dec. Reprint, 620, on trustees of insolvent corpora- 
 tion as representing creditors. 
 
 Compulsory allowance of claim. 
 
 Cited in Meader v. Root, 11 Ohio C. C. 86, holding superior court has juris- 
 diction of action against trustee of insolvent estate to compel allowance of 
 claim. 
 
 5 L. R. A. 384, MORRISON v. COLEMAN, 87 Ala. 655, 6 So. 374. 
 Navigability of stream. 
 
 Cited in Bayzer v. McMillan Mill Co. 105 Ala. 397, 53 Am. St. Rep. 133, 16 
 So. 923, holding stream non-navigable if adapted only to transportation of saw- 
 logs at occasional periods during freshets; United States v. Rio Grande Dam & 
 Irrig. Co. 9 N. M. 299, 51 Pac. 674, holds navigability depends upon public com- 
 mercial use. 
 
 Cited in notes (7 L. R. A. 674) on test of navigability of rivers; (41 L. R. 
 A. 374) as to what streams are floatable; (42 L. R. A. 321) on periodicity as 
 affecting navigability; (126 Am. St. Rep. 732) on what waters are navigable. 
 Diversion of water. 
 
 Cited in note (9 L. R. A. 812) on diversion of water of streams. 
 Receivers receipt as title to public land. 
 
 Cited in Thompson v. Easier, 148 Cal. 648, 113 Am. St. Rep. 321, 84 Pac. 161, 
 holding issuance of receiver's receipt to homestead entryman in possession and 
 claiming land gives him right to maintain or defend suit concerning the land. 
 
 Cited in note (20 Am. St. Rep. 842) on right of settler on public lands before 
 issuance of patent. 
 
 5 L. R. A. 386, Re SUGAR TRUST, 54 Hun, 354, 7 N. Y. Supp. 406. 
 
 Affirmed in 121 N. Y. 582, 9 L. R. A. 33, 18 Am. St. Rep. 843, 24 N. E. 834. 
 Acts constituting abuse of corporate franchise. 
 
 Cited in State ex rel. Snyder v. Portland Natural Gas & Oil Co. 153 Ind. 487, 
 53 L. R. A. 415, 74 Am. St. Rep. 314, 53 N. E. 1089, holding gas company 
 contracting with competing company that neither will sell gas to consumers 
 of the other, subject to judgment of ouster; Distilling & Cattle Feeding Co. v. 
 
851 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 386 
 
 People, 156 111. 487, 47 Am. St. Rep. 200, 41 N. E. 188, holding scheme of 
 distilling company to get control of entire distilling business of United States, 
 for purpose of removing competition and creating monopoly, unlawful; Queen 
 Ins. Co. v. State, 86 Tex. 275, 22 L. R. A. 492, 24 S. W. 397, raising ques- 
 tion whether contract in restraint of trade between corporations is ground for 
 forfeiture of franchises. 
 
 Cited in footnotes to Stockton v. Central R. R. Co. 17 L. R. A. 97, which holds 
 lease of railroad franchise and tracks to railway corporation of another state, 
 in excess of corporate power; State ex rel. Watson v. Standard Oil Co. 15 L. 
 R. A. 145, which holds agreement for transfer of corporate stock to trustees to 
 vote and receive dividends void; State ex rel. Sheets v. Mt. Hope College Co. 
 52 L. R. A. 365, which authorizes dissolution of educational institution for 
 sale of diplomas without regard to merit; Illinois Trust & Sav. Bank v. Doud, 
 52 L. R. A. 481, which denies right to forfeit franchise for failure to exercise 
 all of granted power. 
 
 Cited in notes (9 L. R, A. 34) on conditions attached to grant of corporate 
 franchise; (8 L. R. A. 500) on consolidation of corporations, creating trust, 
 ultra vires; (8 L. R. A. 498) on corporate franchises as public grants. 
 "Who in ay raise question of invalidity of incorporation. 
 
 CSted in Willoughby v. Chicago Junction R. & U. S. Co. 50 N. J. Eq. 676, 25 
 Atl. 277, holding invalidity of incorporation can be attacked only by attor- 
 ney general on behalf of people. 
 Trade combinations. 
 
 Cited in Hentz v. Havemeyer, 58 App. Div. 40, 68 N. Y. Supp. 440, holding de- 
 termination as to validity of combination agreement unnecessary to decision; 
 Gray v. Oxnard Bros. Co. 59 Hun, 388. 13 N. Y. Supp. 86, holding action for ac- 
 count of corporate member's share of profits of illegal combination not main- 
 tainable; Knight & J. Co. v. Miller, 172 Ind. 42, 87 N. E. 823, holding it un- 
 necessary to show immediate results of act are to suppress competition or create 
 monopoly; their tendency to do so is sufficient; DeWitt Wire-Cloth Co. v. New 
 Jersey Wire-Cloth Co. 16 Daly, 532, 14 N. Y. Supp. 277, holding same in effect, 
 and that agreement to restrict competition and arbitrarily enhance price of 
 commodity of commerce is unlawful; Pocahontas Coke Co. v. Powhatan Coal & 
 Coke Co. 60 W. Va. 529, 10 L.R.A. (N.S.) 284, 116 Am. St. Rep. 901, 56 S. E. 
 264, 9 A. & E. Ann. Gas. 667, holding court not limited to consideration of 
 purpose stated in ascertaining real purpose of contract. 
 
 Cited in note (41 L. ed. U. S. 1009, 1010) on validity of contracts in restraint 
 of trade. 
 
 Distinguished in People v. Klaw, 55 Misc. 91, 106 N. Y. Supp. 341, holding 
 plays and entertainments of stage are not articles or useful commodities of 
 common use, and business of owning, leasing and controlling theaters is not 
 trade. 
 To control prices. 
 
 Cited in Lovejoy v. Michels, 88 Mich. 28, 13 L. R. A. 775, 49 N. W. 901, hold- 
 ing combination of manufacturers to sell goods at agreed price, unlawful; Bailey 
 v. Master Plumbers' Asso. 103 Tenn. 107, 46 L. R. A. 563, 52 S. W. 853, holding 
 by-law of master plumbers' association, requiring member bidding on work 
 against another member to pay stated sum to association, invalid; Queen Ins. Co. 
 v. State, 86 Tex. 270, 22 L. R. A. 492, 24 S. W. 397, holding combination between 
 insurance companies to increase rates not within statute prohibiting trusts; 
 United States v. Addyston Pipe & Steel Co. 46 L. R. A. 136, 29 C. C. A. 160, 54 
 U. S. App. 723, 85 Fed. 291, Modified in 175 U. S. 211, 44 L. ed. 136, 20 Sup. Ct. 
 Rep. 96, holding combination of manufacturers to regulate sales and prices of pipe, 
 
5 L-RJL 3SJ JL. R A. CASES AS AUIEORIHES, 
 
 ; Jolia IX JRuk * Sou COL T. Sanaa! mohsafe Dmggistsf Asso. 173 X. 
 Y. Sss, 2 JL. R A. (MS, 96 Am. SSL Rep. 5IS, <S7 X. JBL 13)6 {dissoAiag opuukn), 
 aujjnittj haUiag ao boywott effected by refusal of autawEaetianre to sell madidac* 
 to oae Mi anaiialaiaiag agreed poet: State ex reL Cktes T. Staadaid Oil Co. 
 32* Teaa. 177, 11* & W. 307, kddiag coaateiamadiag of orders given to s 
 off two aaapetiag oil seffiers by mhajfcs ia parsoaaiee of agreeawot; to eoatand 
 ariee <of ofl adawfdl; Outod Slates T. MacAadiros Jfc T. Oa. 149 Fed. SS4, 
 of trade im Ikoriee paste "riitaaF awaopofy aa diffeitentutied 
 
 IL^-. ____ ^ _ J __ _ - _ ^^-M- 
 
 anr gr*t OK rojrau pouDmiu 
 died ia fnottMte to Slate v. P&ippK 18 L R. A. 638, wfckh koUte eoariaamtiai 
 
 to iaocase rates, eoatranr to stale 
 
 ia nstniat off trade. 
 ((11 L. R. A. 437, 4381 coatiachii to icgobte CMayetUioa ia 
 
 ia Uaited States v. l^avs-lEsBoari Freight AMD. 34 L B- A, S3, 
 7 C. CL A. 74, 4 laters. Com Rep. 453, 19 U. S. App. 3C, 58 Fed. 70, svstainin^ 
 
 eoatxaet to preweat eaaa^etittMBi ia fie^gat rates by agreemeat to fliiig* rates 
 fiadbyjai 
 
 da. T. Garat, 1SR. 
 
 Am. SL Rep. 784, 28 AIL 973, boldBMf agraeweat betwwea iaeorpoimtora Bot to 
 
 for five jan not iaralid aa creatiag 
 
 Cited ia Bnnm v. Jaeobx' Fkanaaey Co. 115 tia. 443, 57 LL R. A. 354, 90 Am, 
 SL Rep. 19ft, 41 & EL 553, aoMiBg eancy nrffl ajoia scheme off local 
 to piimiai. wfcnlrab- iiaini thiuaghum Onted States aeDiag to 
 
 DntiagoiAed at Stadtoa T. Ameaemm Tobaceo Co. 55 Jf. J. Eq. 37, 3 
 AtL 971, kaldiag eqnttj wflffl aot eajoia act of tnrporm&om witUa corporate 
 that it vns orgaarand miiA ia n|g,a to exerage pua<i il- 
 
 ia 121 ST. Y. 9H2, 9 L R. A. 33, IS Am St. Rep. 841, 24 X. EL 834, 
 
 off aaunBactaxng mapmi iiilaai wiUk 
 of tiKfcl, aalifal 
 
 Cited ia otn (9 L. R. A. 3; 13 L. R. A. 711 .) oa 
 DnHaganhed a* Onited States T. E. CL Ka^rit Co. W Fed. 310, 
 
 off xteck off anbr tmtpaatioa ia anftcr tale, as put 
 coatxol of 
 
 Cited m State IT. AaHtiooi Sagar Ref. OOL 108 La. *39, 32 So. 9t5, 
 
 $ft"BSU* IcfiBBT afUDttrfaaClbBDlH' CXKHUlt XNIDB SlCBBSB JMiJ_ 
 
 Elertrie Secaritin Co. T. State, 91 JEm. 9ffl, 124 Am St. 
 ia&. 44 So. 78S, taldiag fid&at that euBpuiaie eriateaee aad corporate faae- 
 
 : - ; .-- :-:::":-: :- *-f - . . ; :; ;. -:-.. : :^.i v 1^1 .1- - ..- i -..-. 5 _ ;- 
 
 5 L. R. A. JK. G ASIKHC T. MACE. 33 W. Va. 14, 25 Am SL Rep. 848, 1* 8. EL 
 
 ' 
 
 Gted n Rogas T. Coal Bmr Rom & Driving Oa. 41 W. Ta. 597, 23 S. EL 
 
-:3 L. R, A. CASES AS AUTHORITIES. [5 LJLA. 409 
 
 919, holding party liable for injury to riparian ptopqty caused by boom though 
 latter built and managed without mgliftumt; Watte w. Norfolk ft W. R. Co. 39 
 W. Va. 211, 23 L, R. A. 679, 45 Am. St. Rep. 894, 19 S. E. 521, holding damages 
 uffered by milldam through negligent blasting recoverable though dam con- 
 structed in floatable stream without sluiceway; Connecticut River Lumber Co. v. 
 Oleott Falls Co. 65 ST. H. 377, 13 L. R. A. 830, 21 AtL 1090, holding bill to en- 
 join as public nuisance maintenance of dam without sluiceways in floatable 
 stream properly brought by lumber company, where attorney general joined as 
 party plaintiff; Piekens T. Goal River Boom ft Timber Go. 51 W. Va. 449, 90 
 Am. St. Rep. 819, 41 S. EL 400, holding lumber company liable to mill owner 
 for damages occasioned by deposit of sand at milldam as result of maintenance 
 of boom in too dose proximity thereto; Miller T. State, 124 Tenn. 293. 35 LuRJL 
 <NJS.) 411, 137 S. W. 760; Blackman T. Manldm, 164 Ala. 347, 27 LJLA, iX-Sv) 
 73, 51 So. 23, holding that right of floatage in otherwise non-navigable stream 
 cannot be insisted upon to exclusion of use of water for machinery by riparian 
 owner: Minnesota Canal ft Power Go. v. Kooehiehing Co. 97 Minn. 441, 5 L.RJL 
 <XJ?J 644, 107 X. W. 4O5, 7 A. ft EL Ann. Gas. 1182, on where public have a 
 right of way in streams. 
 
 Cited in notes (7 L. R. A. 674) on navigable rivers as public highways; (13 
 L. R. A. 828) on navigable waters; floatage of logs; ((41 L. R. A. 374) on right 
 to use streams for floating logs; ([59 L. R. A. 53, 79) on right to obstruct or 
 destroy rights of navigation; 22 L.B.A. ( X-S, ;) 547) on rights and duties be- 
 tween those maintaining dam and those using floatable stream. 
 Xmrtcmfcle wmten; warn* ewMtttwte. 
 
 Cited in Gwaltney v. Scottish Carolina limber ft Land Co. Ill U. C. 557, 16 
 & E. 692, holding evidence that stream was floatable above certain point in- 
 sufficient to justify taking from jury question of floatahiliry in which logs had 
 been floated above; Burke County T. Catawha Lumber Go. 116 X. C, 736, 47 Am. 
 St. Rep. 829, 21 S. EL 941, holding stream floatable where it rises eight to ten 
 times yearly, to sufficient height to carry logs over shoals and bars; Webster T. 
 Hariss, 111 Tenn. 691, 59 L. R. A. 330, 69 S. W. 782, holding arm of lake though 
 18 to 20 feet deep not navigable where filled with stumps and snags through 
 which no channel located; Hot Springs Lumber ft Mfg. Go. v. Revercomb, 196 Va. 
 181, 9 L J - 897, 55 S. EL 580, holding a stream is a navigable or float- 
 
 able one, if by the increased precipitation at seasons recurring periodically the 
 stream will be of substantial use to public for transportation; State ex reL 
 TJnited Tanners Timber Co. v. Superior Ct. 60 Wash. 196, 110 Pae. 1017, holding 
 that stream is navigable for floatage of timber products where during natural 
 freshets in winter, spring, and fall it is floatable for logs and is used at all times 
 for floating shingle bolts: People ex reL Highway Gomrs. T. Whiteside County, 122 
 HL App. 43, on what constitutes navigable waters; Harrison T. Fite, 78 C. C. A. 
 447, 148 Fed. 784, on the test of the navigability of a stream as being its capa- 
 city for usefulness as a public highway of transportation. 
 
 Cited in footnote to Heyward v. Farmers' Min. Co. 28 L. R. A. 42, which holds 
 navigable capacity test of navigability. 
 
 Cited in notes (42 T. it 4 318, 319; 126 Am. St. Rep. 711, 722, 727, 729, 730) 
 on what waters are navigable. 
 
 5 L, R. A. 400, KLIXE v. McLALS, 33 W. Va, 32, 10 S. K. 11. 
 
 Cited in Clifton v. Montague, 40 W. Va, 216, 33 L. R. A. 456. 52 Am. St. Rep. 
 72, 21 S. EL 858, holding no covenant as to quality or capacity inferable from 
 description in lease of bind, -including six salt wells;" Arbenz v. Esley, 52 W. 
 
5 L.R.A. 400] L. R. A. CASES AS AUTHORITIES. 854 
 
 Va. 483, 61 L. R. A. 9GO, 44 S. E. 149, holding landlord bound to keep roof in 
 repair not bound to rebuild after fire. 
 
 Cited in notes (10 L.R.A. 148) on rights and remedies of lessee as to repairs; 
 (9 Eng. Rul. Cas. 457) on implied obligation of landlord to repair, and implied 
 warranty of fitness of premises for purposes for which they are let. 
 Variance. 
 
 Cited in Jenkins v. Chesapeake & O. R. Co. 61 W. Va. 600, L.R.A. (N.S.) , 
 57 S. E. 48, 11 A. & E. Ann. Cas. 967, holding in action for breach of contract 
 a declaration upon a special contract is not supported by proof of an implied 
 contract. 
 
 5 L. R. A. 403, GUILLOTTE v. POINCY, 41 La. Ann. 333, 6 So. 507. 
 Who may bring action to contest title to office. 
 
 Distinguished in State v. Grandjean, 51 La. Ann. 1101, 25 So. 940, holding title 
 of de facto officer to office may be tested by attorney general without joining as 
 plaintiff any claimant to office, and without appointment to fill vacancy having 
 been made. 
 Injunction, etc., to protect de facto officer. 
 
 Cited in Poyntz v. Shackelford, 107 Ky. 556, 54 S. W. 855, holding injunction 
 issues to protect officer rightfully in office from interference with performance of 
 duties by claimants about to qualify for same office; Priddie v. Thompson, 82 
 Fed. 191, and Butler v. White, 83 Fed. 589, holding injunction may issue to 
 restrain removal of de facto civil service employees by appointing power, until 
 legal determination of validity of their commission; State ex rel. Fairbanks v. 
 Superior Court, 17 Wash. 16, 61 Am. St. Rep. 893, 48 Pac. 741, holding title of 
 de facto officer not determinable upon petition for injunction to restrain inter- 
 ference with office; State v. Alexander, 107 Iowa, 183, 77 N. W. 841, holding 
 injunction restraining exercise of duties of office by de facto incumbent will not 
 issue incidentally in Code proceeding to test his title thereto; Stenglein v. Sag- 
 inaw Circuit Judge, 128 Mich. 442, 87 N. W. 449, holding mandamus will not 
 issue to compel the dissolution of injunction in protection of de facto officer, where 
 injunction proceeding is not clearly without merit; Howe v. Dunlap, 12 Okla. 479, 
 72 Pac. 895 (dissenting opinion), majority denying injunction to test city at- 
 torney's right to office; Barendt v. McCarthy, 160 Cal. 688, 118 Pac. 228 (dis- 
 senting opinion), on power to issue injunction to protect incumbent of office 
 pending action to determine contest; Hollar v. Cornett, 144 Ky. 422, 138 S. W. 
 298, holding that injunction lies to prevent substituted trustees of board of 
 education from exercising duties of members of board; Sanders v. Emmer, 115 
 La, 595, 39 So. 631, holding injunction might issue at the instance of a de facto 
 officer to prevent claimants from taking possession of until their rights are 
 adjudicated; Jackson v. Rowell, 119 La. 883, 44 So. 689, holding the members 
 of a parish school board sought to be removed from office by the governor might 
 maintain an injunction to protect their possession against the new board ap- 
 pointed by the governor; Callaghan v. Irvin, 40 Tex. Civ. App. 457, 90 S. W. 
 335, holding city marshal might enjoin mayor and city counsel from interfering 
 with his possession of office; Callaghan v. Tobin, 40 Tex. Civ. App. 445, 90 S. 
 W. 328, holding same in case of chief of fire department; Hardy v. Reamer, 84 
 S. C. 488, 66 S. E. 678; Gleason v. Wisdom, 120 La. 635, 45 So. 530, on right 
 of public officer to protect his possession by injunction against claimants. 
 
 Cited in footnote to People ex rel. Corscadden v. Howe, 66 L.R.A. 664, which 
 denies jurisdiction of equity to restrain attempted removal from office of public 
 official by proper authorities in accordance with provisions of invalid statute. 
 
855 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 406 
 
 Cited in notes (8 L.R.A. 229) on proceeding to test right to office; (42 Am. 
 St. Rep. 236, 237) on determination of title to office in injunction proceedings. 
 
 Distinguished in Callan v. Fire Department, 45 La. Ann. 675, 12 So. 834, hold- 
 ing injunction will not issue where alleged de facto officer actually superseded 
 by another, and petition fails to show that complainant is exercising duties of 
 officer; Ward v. Sweeney, 106 Wis. 48, 82 N. W. 169, holding injunction to keep 
 claimants out of office until legal establishment of right thereto, properly denied 
 where exceptional circumstances are not shown; Reemelin v. Mosby, 47 Ohio St. 
 572, 26 N. E. 717, holding injunction will not issue to restrain mayor from 
 appointing officers on ground that statute on which right is based is unconstitu- 
 tional; Landes v. Walls, 160 Ind. 219, 66 N. E. 679, denying injunction against 
 appointees from acting as councilmen pending contest as to title; People ex rel. 
 Hinckley v. District Court, 29 Colo. 281, 93 Am. St. Rep. 61, 68 Pac. 224, deny- 
 ing courts' power to enjoin members of board of commissioners from seating 
 adversary. 
 
 5 L. R. A. 405, GRIGGS v. SWIFT, 82 Ga. 392, 14 Am. St. Rep. 176, 9 S. E. 1062. 
 Termination of contract by death. 
 
 Cited in Greenburg v. Early, 4 Misc. 101, 23 N. Y. Supp. 1009, holding con- 
 tract of employment dissolved by death of partner in employing firm. 
 
 Cited in note (6 L. R. A. 728) on service terminated by death of master. 
 
 Distinguished in Hughes v. Gross, 166 Mass. 65, 32 L. R. A. 621, 55 Am. St. 
 Rep. 375, 43 N. E. 1031, holding contract for renewal of employment not dis- 
 solved by death of one partner in employing firm. 
 Excuse for nouperformance. 
 
 Cited in Re Inman & Co. 171 Fed. 193, holding an adjudication in involuntary 
 bankruptcy terminates a contract of employment. 
 
 Distinguished in Hipp v. Fidelity Mut. L. Ins. Co. 128 Ga. 497, 12 L.R.A. 
 (N.S.) 325, 57 S. E. 892, holding the sickness of an insured which prevented 
 the payment of premiums on a policy before his death would not prevent the 
 forfeiture of the policy for nonpayment. 
 
 5 L. R. A. 406, BROUGHTON v. McGREW, 39 Fed. 672. 
 Libel and slander. 
 
 Cited in Graybill v. De Young, 140 Cal. 329, 73 Pac. 1067, holding instruction 
 that jury could consider influence and circulation of paper proper. 
 
 Cited in notes (9 L. R. A. 621) on definition of libel; (6 L. R. A. 364) on 
 libel; damages in case of express malice; (4 L.R.A. (N.S.) 1109, 1113) on lia- 
 bility growing out of giving or refusing information affecting character or 
 reputation of servant. 
 Privilege. 
 
 Cited in Ashcroft v. Hammond, 132 App. Div. 6, 116 N. Y. Supp. 362, holding 
 question for jury whether telegram between stockholders reflecting on manage- 
 ment of corporation was sent in good faith; Abraham v. Baldwin, 52 Fla. 157, 
 10 L.R.A. (N.S.) 1055, 42 So. 591, 10 A. & E. Ann. Cas. 1148, on when com- 
 munications are privileged. 
 
 Cited in footnotes to Nichols v. Eaton. 47 L. R. A. 483, which holds communi- 
 cation by principal to agent as to business of agency not actionable unless actu- 
 ated by malice: Elmer y. Fessenden, 5 L. R. A. 724, which holds admissible 
 declarations of workmen on quitting work, that defendant had told them work 
 was dangerous from presence of arsenic in silk used : Nissen v. Cramer, 6 L. R. A. 
 780, which holds relevant words spoken by party to action during trial privi- 
 
5 L.R.A. 406] L. R. A. CASES AS AUTHORITIES. 856 
 
 leged; Hemmens v. Nelson, 20 L. R. A. 441, which holds statement by principal 
 of deaf mute institute to executive committee as to improper acts of department 
 superintendent privileged; Sullivan v. Strahorn-Hutton-Evans Commission Co. 
 47 L. R. A. 859, which holds imputation of evil motives, as dishonesty, in let- 
 ter complaining of nonpayment of debt by third person through bank, not privi- 
 leged. 
 
 Cited in notes (20 L.R.A. (N.S.) 364) on libel and slander; privilege as 
 affected by extent of publication; (26 LJELA.(N.S.) 1081, 1083) on qualified 
 privilege of communication between members of association or private corpora- 
 tion. 
 Misconduct of counsel. 
 
 Cited in note (37 L. ed. U. S. 1003) as to when counsel's address to jury is 
 ground of error. 
 
 5 L. R. A. 410, STEWART v. ROBINSON, 115 N. Y. 328, 22 N. E. 160, 163. 
 
 Action by receiver on debt due from third party to deceased partner's estate 
 in Colwell v. Garfield Nat. Bank, 119 N. Y. 411, 23 N. E. 739. 
 
 Action to foreclose mortgage executed by surviving partner in Bell v. Hepworth, 
 134 N. Y. 446, 31 N. E. 918. 
 Rights and liability of deceased partner's estate. 
 
 Followed without discussion in Delamater v. Hepworth, 115 N. Y. 664, 22 N. E. 
 163. 
 
 Cited in Re Kalbfell, 27 Pittsb. L. J. N. S. 211, holding general estate of de- 
 ceased partner not liable for debts contracted after decease, although agreement 
 provided for specific time for firm's duration and for supplanting of son in case of 
 decease; McArdle v. West Philadelphia Title & T. Co. 42 W. N. C. 242, 7 Pa. 
 Super. Ct. 337, holding executors continuing employment of half testator's estate 
 in partnership business pursuant to will, not liable individually or in representa- 
 tive capacity for debts thereafter incurred by firm, in excess of half estate; 
 Butcher v. Hepworth, 115 N. Y. 342, 22 N. E. 163, holding executors of deceased 
 partner not copartners of survivor under partnership contract; Bell v. Hepworth, 
 134 N. Y. 446, 47 N. Y. S. R. 810, 31 N. E. 918, holding mortgage executed by 
 survivor with consent of executors of deceased partner valid, a lien on firm 
 property prior to deceased partner's claim; Wilcox v. Derickson, 168 Pa. 337, 31 
 Atl. 1080, holding executor not required to accept testator's stock in joint stock 
 company so as to render general estate liable for firm debts contracted after his 
 death, by stipulation in articles of association that death of one partner should 
 not dissolve association; Campbell v. Campbell, 40 N. Y. S. R. 818, 16 N. Y. Supp. 
 165, holding acceptance of account by surviving partner by administratrix of de- 
 ceased partner bars right to subsequent accounting in absence of fraud or mistake; 
 Dexter v. Dexter, 43 App. Div. 273, 60 N. Y. Supp. 371, holding executrix of de- 
 ceased partner permitting firm business to continue after payment of debts due 
 at dissolution, thereby becomes mere creditor of surviving partner; Manhattan 
 Oil Co. v. Gill, 118 App. Div. 19, 103 N. Y. Supp. 364, holding legatees are not 
 liable as partners where the representatives of the decedent continue the busi- 
 ness as directed by the will: Rand v. Wright, 141 Ind. 234, 39 N. E. 447, holding 
 a partnership agreement that upon the death of any member of the firm his 
 legal representative shall occupy his place in the partnership, controls only 
 property of the deceased in the firm at the time of his death ; Wilcox v. Derick- 
 son, 168 Pa. 337, 31 Atl. 1080, holding where an agreement that on death of 
 partner his legal representative shall succeed to his interest, the representative 
 is not bound to accept the stock of the deceased partner so as to charge his es- 
 tate with firm debts contracted after his death. 
 
857 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 417 
 
 Cited in notes (79 Am. St. Rep. 715) on liability of deceased partner's estate; 
 (40 L.R.A. (X.S. ) 219 on personal representative, testamentary trustee, or guard- 
 ian carrying on business. 
 
 Distinguished in Rand v. Wright, 141 Ind. 234, 39 N. E. 447, holding partner- 
 ship to continue after death of member where articles of agreement provide that 
 heirs, etc., "shall occupy same place in copartnership" and shall not withdraw 
 capital until expiration of partnership period; Woarms v. Bauer, 26 N. Y. S. R. 
 937, 7 N. Y. Supp. 323, holding validity of partnership agreement, by which inter- 
 est of partner to be continued in firm on decease, cannot be questioned by debtor 
 in action by executors to collect debt; Walker v. Steers, 38 N. Y. S. R. 659, 14 N. 
 Y. Supp. 398, upholding validity of stipulation in partnership contract, for contin- 
 uation of business by surviving partner until expiration of agreed duration of 
 firm. 
 Right* of snrvlvinsr partner. 
 
 Cited in Porter v. Long, 124 Mich. 593, 83 N. W. 601, holding survivor not en- 
 titled to compensation for winding up firm business where simply carrying out 
 contracts between partners which contemplated continuance of firm until comple- 
 tion thereof. 
 
 Cited in footnote to Philbrook v. Newman, 34 L. R. A. 265, which holds good 
 will passes to surviving partners on purchase of interest of deceased. 
 Accumulations. 
 
 Cited in Thorn v. de Breteuil, 86 App. Div. 421, 83 N. Y. Supp. 849, holding 
 direction to continue business, accumulating profits until children reach age of 
 twenty-five, invalid. 
 
 5 L. R. A. 414, SPYCHER v. WERNER, 74 Wis. 456, 43 N. W. 161. 
 Novation. 
 
 Cited in Bank of Antigo v. Ryan, 105 Wis. 40, 80 N. W. 441, raising, without, 
 deciding, question whether third person's agreement to give mortgage constitutes 
 novation; Bohn Mfg. Co. v. Reif, 116 Wis. 480, 93 X. W. 466, holding that evi- 
 dence fails to show novation of debtors; Frederick Town Sav. Inst. v. Michael, 81 
 Md. 507, 33 L. R. A. 636, 32 Atl. 340 (dissenting opinion), majority holding tak- 
 ing of new note secured by void mortgage discharges surety on prior note; Mul- 
 vane v. Sedgley, 63 Kan. 121, 55 L. R. A. 557, 64 Pac. 1038 (dissenting opinion) _ 
 majority holding bar of action against purchaser assuming mortgage releases- 
 mortgagor where mortgagee recognized assumption. 
 
 Cited in notes (6 L. R. A. 688; 13 L. R. A. 390) on novation; (10 L. R. A. 369) 
 on novation by substitution of party; (33 L. R. A. 633) on liability of obligors 
 on original contract as affected by renewal or substituted contract which is void. 
 Hialit of assignee of chose in action to sue. 
 
 Cited in note (5 L. R. A. 430) on right of assignee of chose in action to sue in 
 his own name. 
 
 5 L. R. A. 417, LAWRENCE v. WHITNEY, 115 N. Y. 410, 22 N. E. 174. 
 
 Covenants running: -with land. 
 
 Cited in footnote to Houston v. Zahm, 65 L.R.A. 799, which holds that a 
 covenant by a vendor to open a way through another tract which he contem- 
 plates purchasing does not run with the latter tract after coming into the 
 vendor's possession. 
 
 Cited in notes (66 L.R.A. 683) on enforcement of obligation to contribute to 
 cost of party walls, by or against grantees or successors in title; (67 L.R.A. 
 404) on grant of water power as covenant running with land. 
 
5 L.R.A. 417] L. R. A. CASES AS AUTHORITIES. 858 
 
 Necessary parties in riparian controversy. 
 
 Cited in Climax Specialty Co. v. Seneca Button Co. 54 Misc. 155, 103 N. Y. 
 Supp. 822, holding other riparian owners along defendant's mill race who do 
 not appear to claim any rights on an alleged wrongful diversion of water are 
 not necessary parties to an injunction suit. 
 
 5 L. R. A. 422, POST v. WEIL, 115 N. Y. 361, 12 Am. St. Rep. 809, 22 N. E. 145. 
 
 Followed without discussion in Post v. Bernheimer, 115 N. Y. 664, 22 N. E. 149. 
 Covenant or condition, which. 
 
 Cited in Clement v. Burtis, 121 N. Y. 709, 24 N. E. 1013, holding conveyance 
 upon express condition that grantee, his heirs or assigns, shall have no erection or 
 business creating nuisance thereon, covenant, and not condition subsequent ; Graves 
 v. Deterling, 120 N. Y. 456, 24 N. E. 655, holding grant containing a final clause 
 wherein it is covenanted and agreed that the premises shall be used for no noxious 
 or offensive business, without provision for re-entry, creates covenant, and not 
 condition; Los Angeles University v. Swarth, 54 L. R. A. 266, 46 C. C. A. 651, 107 
 Fed. 803, construing deed given on express condition that land conveyed shall be 
 used for campus, as covenant, and not condition; Van Schaick v. Lese, 31 Misc. 
 613, 66 N. Y. Supp. 64, holding deed, to be void and estate to revert in certain 
 event, created condition subsequent; Winn v. State, 55 Ark. 364, 18 S. W. 375, 
 holding stipulation to make certain improvements or forfeit lease, condition, and 
 not covenant; Moore v. Prentiss Tool & Supply Co. 133 N. Y. 151, 30 N. E. 736, 
 holding agreement at time of giving mortgage that mortgagee should start 
 mortgagor in business, not condition, either precedent or subsequent and not avail- 
 able to latter's vendee; Bragdon v. Blaisdell, 91 Me. 328, 39 Atl. 1036, holding 
 agreement to ship from vendor's wharf, made part of the condition and considera- 
 tion of deed of quarry lot, not condition subsequent, there being no intent shown ; 
 Scovill v. McMahon, 62 Conn. 388, 21 L. R. A. 61, 36 Am. St. Rep. 350, 26 Atl. 479, 
 holding requirement of fence around cemetery for which land is conveyed, not 
 condition subsequent; Elyton Land Co. v. South & North Ala. R. Co. 100 Ala. 
 407, 14 So. 207, holding conveyance of right of way. with proviso that any other 
 railroad may lay parallel track thereon, but without reservation of right of re- 
 entry, covenant, or limitation and not condition subsequent; Graves v. Deterling, 
 120 N. Y. 457, 24 N. E. 655, holding that "it is covenanted and agreed," although 
 not determinative, persuasive of covenant rather than condition; Clement v. 
 Burtis, 3 Silv. Ct. App. 63, 25 Abb. N. C. 348, 24 N. E. 1013, holding a clause 
 in a deed reciting that the grant is upon the express condition that the grantee, 
 his heirs or assigns shall not maintain a nuisance on the premises does not 
 create a condition subsequent but a covenant running with the land; Druecker v. 
 McLaughlin, 235 111. 372, 85 X. E. 647, holding a provision in a deed of land 
 which recites that the deed is upon the express condition that the grantee shall 
 keep the premises open as a private way "forever or until same shall be taken or 
 condemned" is a covenant; Koch v. Streuter, 232 111. 598, 83 N. E. 1072, holding 
 the absence or presence of a re-entry clause is important in the determination of 
 whether a provision in a deed is a covenant or a condition: Springfield & X. E. 
 Traction Co. v. Warrick, 249 111. 474, 94 N. E. 933, Ann. Cas. 1912 A, 187, holding 
 that clause in deed for railroad right of way providing that unless road is com- 
 pleted within two years land shall revert without payment of consideration, is 
 condition subsequent; Richter v. Distelhurst, 110 App. Div. 271, 101 N. Y. Supp. 
 634, on the construction of a clause in a deed as whether a condition or a 
 covenant as not depending upon the technical language used: Zweig v. Sweedler, 
 140 App. Div. 320, 125 N. Y. Supp. 171, holding that whether or not words in 
 
859 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 422 
 
 deed create condition subsequent does not necessarily depend upon the technical 
 language used. 
 
 Cited in footnote to Los Angeles University v. Swarth, 54 L. R. A. 262, which 
 holds covenant, not condition, created by deed conditioned that land shall be 
 used exclusively for college campus. 
 
 Cited in notes (31 Am. St. Rep. 46) on condition subsequent in deeds; (79 
 Am. St. Rep. 748, 751) on what words create condition subsequent; (15 Eng. 
 Rul. Cas. 687) on what is requisite to constitute a covenant in a lease. 
 
 Distinguished in Oregon R. & Nav. Co. v. McDonald, 58 Or. 231, 32 L.R.A. 
 (N.S.) ]21, 112 Pac. 413, holding that conveyance to railroad on condition that 
 it would construct line within two years created condition subsequent. 
 
 Criticized in Clapp v. Wilder, 176 Mass. 335, 50 L. R. A. 121, 57 N. E. 692, 
 holding express condition that grantee, his heirs and assigns, shall never build 
 nearer street creates conditional fee. 
 Construction of covenant or condition. 
 
 Cited in Cooper v. United States Mut. Acci. Asso. 57 Hun, 410, 10 N. Y. Supp. 
 748, requiring construction of insurance policy which will avoid forfeiture where 
 language is ambiguous; Rose v. Hawley, 118 N. Y. 511, 23 N. E. 904, holding area 
 under, with gratings in, sidewalk not inhibited by deed of land to be forever a 
 public highway without other erection upon it than a monument; Krekeler v. Aul- 
 bach, 51 App. Div. 594, 64 N. Y. Supp. 908, holding deed's provision restricting 
 height of building, restriction for grantor's benefit only, in view of no right of re- 
 entry, or specification of heirs and assigns, and other circumstances; Allen v. 
 Farmers' Loan & T. Co. 18 App. Div. 32, 79 N. Y. S. R. 402, 45 N. Y. Supp. 398, 
 holding under bequest of income "to A. and of her husband," testator's son, right 
 to participate not dependent on continuance of family relation ; Equitable Life 
 Assur. Soc. v. Brennan, 30 Abb. N. C. 266, 24 N. Y. Supp. 787, holding covenants 
 to be for benefit of prior vendees where vendor has disposed of entire tract; Round 
 Lake Asso. v. Kellogg, 47 N. Y. S. R. 675, 20 N. Y. Supp. 261, holding assignee 
 of lease made subject to rules adopted from time to time, subject to regulation re- 
 quiring obtaining license or permit for sale of general merchandise; Spencer v. 
 Stevens, 18 Misc. 113, 41 N. Y. Supp. 39, holding deed upon condition against 
 sale of intoxicants, covenant running with land; Schwoerer v. Leo, 39 Misc. 508, 
 80 N. Y. Supp. 399, holding that restriction as to setback from building line runs 
 only to first grantee; Gebhard v. Addison, 87 App. Div. 378, 84 N. Y. Supp. 418, 
 holding parcel retained out of plot not subject to restrictions over lots sold : 
 Equitable Life Assur. Soc. v. Brennan, 30 Abb. N. C. 266, 24 N. Y. Supp. 784, 
 holding a covenant against the erection of any stable on lots conveyed where 
 grantor originally owner remainder of block which he conveyed with like re- 
 striction inures to benefit of prior grantees; Minard v. Delaware, L. & W. R. 
 Co. 139 Fed. 64; St. Peter's Church v. Bragaw, 144 N. C. 132, 10 L.R.A.(N.S.) 
 637, 56 S. E. 688; Silver Springs, 0. & G. R. Co. v. Van Ness, 45 Fla. 573, 34 
 So. 884, on ambiguous language in a deed as to construe as a covenant rather 
 than a condition subsequent; Barkhausen v. Chicago, M. & St. P. R. Co. 142 
 Wis. 298, 124 N. W. 649, on how ambiguous language in a deed is to be con- 
 strued: Green County v. Quinlan, 211 U. S. 594, 53 L. ed. 342, 29 Sup. Ct. 
 Rep. 162, on court disregarding the technical meaning of the word "condition" 
 where possible to construe ambiguous language to be a covenant; Korn v. Camp- 
 bell, 119 App. Div. 407, 104 N. Y. Supp. 462 (dissenting opinion), on the 
 presumption as to the purpose of restrictions inserted in a deed; Barnes v. 
 Southfield Beach Co. 202 N. Y. 305, 95 N. E. 691, to the point that technical 
 rules of construction must, generally, yield to the ; plication to contracts, of 
 good sense and reason; Ball v. Milliken, 31 R. I. 53, 37 L.R.A. (N.S.) 637, 76 
 
5 L.R.A. 422] L. E. A. CASES AS AUTHORITIES. 860 
 
 Atl. 789, Ann. Gas. 1912B, 30, holding that restrictive covenant in deed was 
 made for benefit of adjoining land. 
 
 Cited in footnotes to Sioux City & St. P. R. Co. v. Singer, 15 L. R. A. 751, 
 which holds condition against selling liquor on premises sold, valid; Jenks v. 
 Pawlowski, 22 L. R. A. 863, which denies vendor's right to enjoin breach of con- 
 dition against sale of liquor where sales made on adjoining premises sold without 
 restriction; Wakefield v. Van Tassell, 65 L.R.A. 511, which upholds condition 
 in deed of land that no grain shall ever be handled thereon. 
 
 Cited in notes (82 Am. St. Rep. 682) on what covenants run with the land; 
 (95 Am. St. Rep. 223) on validity of conditions and restrictions in deed; (14 
 Eng. Rul. Cas. 802) on construing deed so as to take effect if possible. 
 Extinguishment of covenants. 
 
 Cited in Muscogee Mfg. Co. v. Eagle & P. Mills, 126 Ga. 218, 7 L.R.A. ( N.S. ) 
 1144, 54 S. E. 1028, holding a covenant in a deed restricting its use for the 
 (benefit of adjacent land is extinguished by the vesting in one person of the 
 title to both tracts. 
 
 Cited in note (1 Brit. Rul. Cas. 480) on effect upon easement of unity of seisin. 
 Equity jurisdiction as regards covenants. 
 
 Annotation cited in Greensboro Ferry Co. v. New Geneva Ferry Co. 34 Pa. 
 Co. Ct. 37, on jurisdiction in equity to restrain breach of covenants. 
 
 5 L. R. A. 428, TAPPAN v. ALBANY BREWING CO. 80 Cal. 570, 13 Am. St. 
 
 Rep. 174, 22 Pac. 257. 
 Specific performance of contract. 
 
 Cited in footnotes to Hodges v. Kowing, 7 L. R. A. 87, authorizing specific per- 
 formance of fair contract for sale of land, though remedy at law exists; Coffey 
 v. Emigh, 10 L. R. A. 127, which authorizes specific enforcement of fair, reason- 
 able, and just contract where both parties are able to perform. 
 
 Cited in footnotes to Chicora Fertilizer Co. v. Dunan, 50 L. R. A. 401, which 
 holds failure to inform creditor of pending negotiations increasing value of collat- 
 eral security sought to be released not fraudulent concealment ; Opie v. Pacific In- 
 vestment Co. 56 L. R. A. 778, which denies duty of indorser to disclose to mort- 
 gagee knowledge as to value of property which he attempts to buy for third per- 
 son; Hardy v. American Exp. Co. 59 L. R. A. 731, holding carrier collecting bill 
 for goods sent C. O. D., before delivery, knowing them to be damaged, liable for 
 amount paid. 
 
 Cited in notes (12 L. R. A. 121) on contracts not binding on makers; (10 L. 
 R. A. 606) on contract obtained by circumvention and deceit; (117 Am. St. 
 Rep. 524) on illegality of contracts in relation to prosecution of civil suits. 
 Frand as a defence. 
 
 Cited in Turner v. Ware, 2 Ga. App. 60, 58 S. E. 310, holding in an action 
 on a promissory note where the maker sets up the defense that he was induced 
 to sign by wilful fraud the court erred in excluding proof. 
 
 5 L. R. A. 429, MEMPHIS & L. R. R. CO. v. KERR, 52 Ark. 162, 20 Am. St. Rep. 
 
 159, 12 S. W. 329. 
 Dnty of railroad company as to persons on track. 
 
 Cited in Bostwick v. Minneapolis & P. R. Co. 2 N. D. 454, 51 N. W. 781, holding 
 fact that person on track is trespasser does not absolve railroad from exercise of 
 care to avoid injury. 
 
861 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 430 
 
 Cited in note (9 L.R.A.(N.S.) 374) on duty of railroad trainmen to keep 
 lookout. 
 
 Distinguished in Prescott & N. W. R. Co. v. Brown, 74 Ark. 609, 86 S. W. 
 809, holding (by reason of statute) the burden was on railroad to show that 
 persons running a train kept a constant lookout for persons and property on 
 tracks. 
 As to stock. 
 
 Cited in Johnson v. Stewart, 62 Ark. 168, 34 S. W. 889, holding it duty of rail- 
 road prior to act 1891 to use reasonable effort to avoid injury, if animal discov- 
 ered, or might have been discovered with proper watchfulness; St. Louis S. W. R. 
 Co. v. Russell, 62 Ark. 185, 34 S. W. 1059, holding railroad not liable for killing 
 of cattle on track where engineer was on lookout, but fireman was not, if engineer 
 in position to see; Chicago, R. I. & P. R. Co. v. Woodworth, 1 Ind. Terr. 23, 35 S. 
 W. 238, holding railroad not liable for killing stock on track, unless killing was 
 result of negligence; St. Louis & S. F. R. Co. v. Zachary, 2 Ind. Terr. 546, 53 S. 
 W. 327, holding railroad not liable for killing stock on track, when fireman on 
 lookout, and train could not have been stopped in time to avoid danger, after ani- 
 mals discovered; Atchison, T. & S. F. R. Co. v. Davis, 26 Okla. 364, 109 Pac. 
 551, holding that railroad was bound to use ordinary care to prevent injury 
 to mules trespassing on tracks. 
 
 Cited in notes (5 L.R.A. 431) on doctrine of "last clear chance;" (9 L.R.A. 
 (N.S.) 348) on duty of railroad to fence right of way; (21 Am. St. Rep. 289) 
 on duty of railroad company to animals on or near track. 
 
 Distinguished in Kansas City Southern R. Co. v. Ingram, 80 Ark. 270, 97 S. 
 W. 55, holding as to an accident occurring in Indian Territory where the cited 
 case is not authority the duty to lookout was properly charged. 
 
 Disapproved in Gulf, C. & S. F. R. Co. v. Washington, 1 C. C. A. 290, 4 U. S. 
 App. 121, 49 Fed. 351, holding railroad bound to exercise reasonable care to dis- 
 cover stock on track and to avoid injury after they are discovered. 
 Contributory negligence of person Injnred on railroad track. 
 
 Cited in St. Louis S. W. R. Co. v. Dingman, 62 Ark. 252, 35 S. W. 219, and 
 St. Louis, I. M. & S. R. Co. v. Leathers, 62 Ark. 240, 35 S. W. 216 (dissenting 
 opinion), majority holding contributory negligence defense to action under statute 
 making railroad liable for killing person on track through failure to keep lookout. 
 
 5 L. R. A. 430, CONTINENTAL INS. CO. v. MUNNS, 120 Ind. 30, 22 N. E. 78. 
 Insurance; estoppel to set up forfeiture against assignee of policy. 
 
 Cited in Hall v. Niagara F. Ins. Co. 93 Mich. 189, 18 L. R. A. 139, 32 Am. St. 
 Rep. 497, 53 N. W. 727, holding assent of insurer to assignment of policy to 
 grantee estops insurer from setting up prior forfeiture; Furbush v. Consolidated 
 Patrons, 140 Iowa, 245, 118 N. W. 371, holding insurance company could not 
 set up as against an assignee of policy, with insurer's consent, that the risk had 
 been increased by the installation of a gas plant after the policy issued where 
 plaintiff's vendor had been assured that it would make no difference as to the 
 risk; Bayless v. Merchants' Town Mut. Ins. Co. 106 Mo. App. 688, 80 S. W. 289, 
 holding a policy of insurance could not be forfeited in the hands of an assignee 
 thereof, for a breach of an inventory clause, where policy assigned with consent of 
 insurer. 
 
 Cited in notes (18 L.R.A. 136) on effect of assignor's acts of forfeiture upon 
 assignee; (22 Am. St. Rep. 330) on estoppel to set up forfeiture against assignee 
 <of policy. 
 
5 L.R.A. 430] L. R. A. CASES AS AUTHORITIES. 862 
 
 Assignment of policy. 
 
 Cited in New v. German Ins. Co. 5 Ind. App. 86, 31 N. E. 475, holding 
 assignment of policy to grantee of assured inoperative without consent of as- 
 sured; Manchester F. Assur. Co. v. Glenn, 13 Ind. App. 371, 55 Am. St. Rep. 
 225, 41 N. E. 847, holding assignment of policy is creation of new 
 contract, basis of which is terms of old policy; Virginia-Carolina Chemical 
 Co. v. Sundry Ins. Co. 108 Fed. 456, and Bullman v. North British & M. Ins. Co. 
 159 Mass. 122, 34 N. E. 169, holding such assignment is as if new policy'issued to 
 assignee, and entitles latter to sue thereon in his own name ; Moffitt v. Phenix Ins. 
 Co. 11 Ind. App. 237, 38 N. E. 835, holding transfer of property with oral assent 
 of insurer creates new contract, although consent not subsequently indorsed on 
 policy; American Mut. L. Ins. Co. v. Bertram, 163 Ind. 57, 64 L.R.A. 938, 70 N. E. 
 258, sustaining recovery of premiums paid by bona fide assignee of void policy; 
 American Mut. L. Ins. Co. v. Bertram, 163 Ind. 57, 64 L.R.A. 935, 70 N. E. 
 258, holding the assignee of a policy of insurance void because of want of an 
 insurable interest in the assignor might recover premiums paid by him after 
 being assured by agent and officers of insurance company of his right to hold 
 the policy; Miles Lamp Chimney Co. v. Erie F. Ins. Co. 164 Ind. 185, 73 N. E, 
 107, on policy of insurance as having no validity in the hands of an assignee 
 without the consent or approval of the insurer. 
 
 Cited in note (5 L. R. A. 414) on what constitutes novation. 
 
 Distinguished in Franklin Ins. Co. v. \Volff, 23 Ind. App. 553, 54 N. E. 772, 
 holding assignment of policy to mortgagee as security, with consent of insurer, 
 not new contract; Franklin Ins. Co. v. Wolff, 23 Ind. App. 557, 54 N. E. 772, hold- 
 ing rule that such assignment is new contract not applicable when policy void in 
 its inception. 
 Effect of failure to disclose fact material to risk in absence of inquiry. 
 
 Cited in Arthur v. Palatine Ins. Co. 35 Or. 31, 76 Am. St. Rep. 450, 57 Pac. 
 62, holding omission not breach of condition making policy void in case of con- 
 cealment or misrepresentation of material fact; German Mut. Ins. Co. v. Xie- 
 wedde, 11 Ind. App. 627, 39 N. E. 534, holding failure of insurer to inquire as to 
 encumbrances waives right of forfeiture on account of existing encumbrance; 
 Indiana Ins. Co. v. Pringle, 21 Ind. App. 569, 52 N. E. 821, holding failure to dis- 
 close encumbrance, contrary to condition of policy, avoids same, although agent 
 taking application makes no inquiry as to encumbrances; Milwaukee Mechanics' 
 Ins. Co. v. Nievvedde, 12 Ind. App. 147, 39 N. E. 757, holding, although assured 
 not asked for information as to encumbrances, subsequent execution of chattel 
 mortgage, without consent of insurer, avoids policy; Aetna Ins. Co. v. Holcomb, 
 89 Tex. 411, 34 S. W. 915, holding failure to inquire as to encumbrances not 
 waiver of right to declare forfeiture because of existing mortgage. 
 False entry in application by agent of insurer. 
 
 Distinguished in Bowlus v. Phenix Ins. Co. 133 Ind. 118, 20 L. R. A. 404, 32 N. 
 E. 319, holding where agent fails to report mortgage according to representation 
 of assured, subsequent renewal of mortgage will not avoid policy. 
 Avoidance of policy for breach of promissory warranty. 
 
 Cited in Continental Ins. Co. v. Vanlue, 126 Ind. 411, 10 L. R. A. 844, 26 N. E. 
 119, holding legal encumbrance created or suffered in violation of terms of con- 
 tract will defeat action on policy. 
 
 5 L. R. A. 432, SONDHEIM v. GILBERT, 117 Ind. 71, 10 Am. St. Rep. 23, 18 N. 
 
 E. 687. 
 Knowledge of, or participation in, illegal contract. 
 
 Cited in Marion Trust Co. v. Crescent Loan & Invest. Co. 27 Ind. App. 459, 87 
 
863 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 432 
 
 Am. St. Rep. 257, 61 N. E. 688, upholding recovery on insolvent building associ- 
 ation's note, proceeds of which were illegally applied with lender's knowledge; 
 Singleton v. Bank of Monticello, 113 Ga. 530, 38 S. E. 947; Jackson v. City Nat. 
 Bank, 125 Ind. 350, 9 L. R. A. 659, 25 X. E. 430; Wright v. Hughes, 119 Ind. 330, 
 12 Am. St. Rep. 412, 21 N. E. 907, holding mere knowledge of lender of borrow- 
 er's illegal purpose will not invalidate contract; Appleton v. Maxwell, 10 N. M. 
 759, 55 L.R.A. 96, 65 Pac. 158, holding lender sharing in gambling transaction 
 cannot recover; Plank v. Jackson, 128 Ind. 426. 26 N. E. 568, holding lender inter- 
 ested in or assisting in bringing parties to illegal contract together cannot re- 
 cover; Pape v. Wright, 116 Ind. 504, 19 X. E. 459, holding innocent broker entitled 
 to recover although his principal acts illegally; Appleton v. Maxwell, 10 X. M. 
 759, 55 L.R.A. 93, 65 Pac. 158, holding a party making a loan of money with the 
 understanding it is to be used in a gambling transaction cannot recover. 
 Partner's implied authority to execute firm note. 
 
 Cited in Schellenbeck v. Studebaker, 13 Ind. App. 440, 55 Am. St. Rep. 240, 41 
 N. E. 845, holding partner in nontrading firm has no implied authority to execute 
 partnership note, in absence of necessity or usage. 
 
 Cited in note (48 Am. St. Rep. 438, 439) as to when partnership is bound 
 by loan effected by one member. 
 Rig-fats of bona fide bolder for value as affected by statute. 
 
 Cited in Irwin v. Marquett, 26 Ind. App. 384, 84 Am. St. Rep. 297, 59 X. E. 38, 
 holding gaming check void in hands of bona fide holder for value under statute; 
 Spray v. Burk, 123 Ind. 568, 24 X. E. 588, holding it doubtful whether maker of 
 note given for gambling debt, inducing holder to purchase by false representations 
 that it was all right, is estopped from setting up invalidity under statute; Voreis 
 v. Xussbaum, 131 Ind. 270, 16 L. R. A. 47, 31 X. E. 70, holding note given 'by 
 married woman as surety void as to her in hands of innocent purchaser for value ; 
 Bohon v. Brown, 101 Ky. 362, 38 L. R. A. 505, 72 Am. St. Rep. 420, 41 S. W. 273. 
 holding note invalid by statute not good in hands of innocent purchaser for 
 value; Schmueckle v. Waters, 125 Ind. 268, 25 X. E. 281, holding note on wager- 
 ing contract void between parties, but enforceable in hands of innocent pur- 
 chaser for value: Lynchburg Xat. Bank v. Scott Bros. 91 Va. 656, 29 L. R. A. 829, 
 50 Am. St. Rep. 860, 22 S. E. 487, holding usurious negotiable paper good in 
 hands of innocent purchaser for value; Pape v. Hartwig, 23 Ind. App. 336, 55 X. 
 E. 271, and Tescher v. Merea, 118 Ind. 588, 21 X. E. 316, holding note valid on 
 face good in hands of innocent holder for value, although taken in violation of 
 patent rights statute; McMann v. Walker, 31 Colo. 263, 72 Pac. 1055, sustaining 
 bona fide holder's recovery on note executed to foreign corporation not filing cer- 
 tificate; Citizens' State Bank v. Xore, 67 Xeb. 71, 60 L.R.A. 738, 93 X. W. 160, 
 sustaining bona fide holder's right to recover on note given unlicensed practition- 
 er for medical services; McMann v. Walker. 31 Colo. 263, 72 Pac. 1055, holding 
 the note of a foreign corporation which had not complied with laws of the state 
 to do business is valid in the hands of a bona fide purchaser before maturity; 
 Citizens' State Bank v. Xore, 67 Xeb. 71, 60 L.R.A. 738, 93 N. W. 160, 2 A. & 
 E. Ann. Cas. 604, holding a note given for medical services by an unlicensed 
 practitioner may be recovered by a bona fide purchaser, notwithstanding a 
 statute prohibiting the practice of medicine without a license; Gray v. Boyle, 
 55 Wash. 582. 133 Am. St. Rep. 1042. 104 Pac. 828, holding a note given for 
 insurance premiums for a less sum than the full premium was valid in the hands 
 of a bona fide holder notwithstanding a statute prohibiting such discrimina- 
 tions: Arnd v. Sjoblom, 131 Wia. 044. 10 L.R.A.fX.S.) 844, 111 X. W. 666, 11 
 A. & E. Ann. Cas. 1179, holding a bona fide holder for value of a note given for 
 
5 L.R.A. 432] L. R. A. CASES AS AUTHORITIES. 864 
 
 lightning rods could recover thereon although the note did not contain on its 
 face an indication of the consideration as required by statute; Alexander v. 
 Hazelrigg, 123 Ky. 684, 97 S. W. 353, holding that under statute declaring 
 gambling debts void, a note given therefor is void ab initio and is of no effect 
 in the hands of an innocent purchaser notwithstanding the negotiable instru- 
 ment law. 
 Conflict of laws as to contracts. 
 
 Cited in Parker v. Moore, 53 C. C. A. 372, 115 Fed. 802, holding contract, valid 
 where made, not enforceable in another state if contrary to its morals, public 
 policy, or statutes; Vanderpoel v. Gorman, 3 Misc. 60, 22 N. Y. Supp. 541, hold- 
 ing assignment, valid where executed, not enforceable in another state, if against 
 its public policy or statutes; Brown v. Gates, 120 Wis. 352, 97 N. W. 221, 1 A. 
 
 6 E. Ann. Cas. 85; Midland Steel Co. v. Citizens' Nat. Bank, 34 Ind. App. 114, 
 72 N. E. 290, holding the liability of the maker of a note payable in another 
 state is determined according to the laws of such state. 
 
 Cited in notes (64 L.R.A. 162) on conflict of laws as to gambling and lottery 
 contracts; (55 Am. St. Rep. 775) on enforcement of contract outside of juris- 
 diction where made. 
 Construction of penal statutes. 
 
 Cited in Boyce v. O'Dell Commission Co. 109 Fed. 761, holding "bucket shop" 
 gambling transactions not a game within gaming statute; Dows v. Glaspel, 4 N. 
 D. 268, 60 N. W. 60, holding margins in gambling transactions not recoverable 
 under Minnesota statute; Hanks v. Brown, 79 Iowa, 563, 44 N. W. 811, holding 
 criminal statutes must be strictly construed. 
 Agreements declared wagering contracts. 
 
 Cited in Nave v. Wilson, 12 Ind. App. 42, 38 N. E. 876 ; Pearce v. Dill, 149 Ind. 
 145, 48 N. E. 788; Plank v. Jackson, 128 Ind. 426, 26 N. E. 568; Davis v. Davis, 
 119 Ind. 518, 21 N. E. 1112, holding agreement for sale of commodity neither in- 
 tended to be delivered nor paid for, a wagering contract; Lancaster v. McKinley, 
 33 Ind. App. 451, 67 N. E. 947, holding under a statute providing for the re- 
 covery of money or property lost by betting on any game, does not authorize a 
 recovery of money lost in bucket-shop transactions; Wilson v. National Fowler 
 Bank, 47 Ind. App. 692, 95 N. E. 269, holding that note given to cover losses in 
 bucket shop speculation is void in hands of original parties; Western U. Teleg. 
 o. v. State, 165 Ind. 511, 3 L.R.A. (N.S.) 162, 76 N. E. 100, 6 A. & E. Ann. Caa. 
 380, on option contracts as being void at common law. 
 
 Cited in footnote to Booth v. People, 50 L. R. A. 762, which sustains statute 
 making unlawful, options for sale of commodities which have been subject of gam- 
 bling operations. 
 
 Cited in notes (9 L. R. A. 657) on validity of contract remotely connected with 
 illegal transaction; (12 L.R.A. 121) on gambling contract; (15 Am. St. Rep. 
 167) on wagering contracts; (119 Am. St. Rep. 174, 175, 176) on defenses to ob- 
 ligations given for gambling debts; (10 Eng. Rul. Cas. 476) on validity of con- 
 tract for sale and future delivery of commodity to be procured by seller. 
 
 Distinguished in Ives v. Boyce, 85 Neb. 327, 25 L.R.A.(N.S.) 160, 123 N. W. 
 318, holding the sale and purchase for future delivery of stocks with the in- 
 tention that there should be no delivery but a settlement by the payment of the 
 difference in prices does not constitute a game of hazard. 
 
 5 L. R. A. 436, LANCASTER COUNTY v. FULTON, 128 Pa. 48, 18 Atl. 384. 
 
 Report of decision in action for reasonable compensation in 162 Pa. 294, 29 Atl. 
 763, Affirming 10 Lane. L. Rev. 81. 
 
*;.> L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 439 
 
 Contracts for extra compensation to public officer. 
 
 Cited in Dorsett v. Garrard, 85 Ga. 737, 11 S. E. 768, holding county commis- 
 sioner not entitled to charge commission for selling real estate for county ; Russell 
 v. Luzerne County, 7 Kulp, 279, 3 Pa. Dist. R. 493, denying county's liability to 
 -clerk of count}- officers for extra services rendered out of office hours; Pittsburg 
 v. Goshorn, 230 Pa. 221, 79 Atl. 505, on unenforcibility of agreement for greater 
 compensation of public officer where compensation is fixed by statute; Delaware 
 County v. Makiver, 11 Del. Co. Rep. 293, to the point that agreement to pay sal- 
 aried officer extra compensation is void; Fayette County v. County Comrs. 35 Pa. 
 Co. Ct. 403, 18 Pa. Dist. R. 219, holding a county solicitor who has been voted an 
 annual salary cannot be allowed compensation for extra services; Brown v. 
 Wingert, 38 Pa. Co. Ct. 483, holding that agreement to pay salaried public 
 officer extra compensation is void. 
 
 Cited in footnote to Buck v. Eureka, 30 L. R. A. 409, which holds void, contract 
 to pay city attorney compensation other than salary for conducting litigation for 
 <5ity. 
 
 Cited in notes (6 L.R.A. 615) on contracts against public policy; (26 L.R.A. 
 (N.S. ) 290) on applicability to nonconstitutional officer of constitutional pro- 
 vision against increase of salary during term. 
 Compensation for services by public officer rendered after term. 
 
 Cited in Buck v. Eureka, 109 Cal. 521, 30 L. R, A. 414, 42 Pac. 243, holding city 
 attorney cannot recover, under void contract for extra- compensation made during 
 term of office, for services rendered after expiration of term. 
 Who are "public officers." 
 
 Cited in Converse County v. Burns, 3 Wyo. 696, 29 Pac. 894, holding county 
 treasurer is "public officer" within constitutional provision against change in sal- 
 ary of public officers during term; Richie v. Philadelphia, 37 Pa. Super. Ct. 195, 
 35 Pa. Co. Ct. 312, 17 Pa. Dist. R. 80, holding real estate assessors were "public 
 officers," within meaning of constitution. 
 
 Cited in note (17 L. R. A. 248) on who are public officers. 
 Scope of dnties of public officer. 
 
 Cited in Buck v. Eureka, 109 Cal. 519, 30 L. R. A. 414, 42 Pac. 243, holding that 
 statute making it duty of city attorney to attend "all suits" in which city in- 
 terested means suits in all courts. 
 
 5 L. R, A. 439, PHILADELPHIA & R. R. CO. v. HUBER, 128 Pa. 63, 18 Atl. 334. 
 Master's duty respecting appliances. 
 
 Cited in Miller v. Inman, 40 Or. 166, 66 Pac. 713, holding master liable for 
 death of servant killed by being caught by projecting bolt on shaft; McConnell 
 v. Pennsylvania R. Co. 223 Pa. 451, 72 Atl. 849, on duty of railroad company to 
 provide employees with a safe place to work. 
 
 Cited in footnotes to Lehigh & W. Coal Co. v. Hayes, 5 L.R.A. 441, which 
 holds master furnishing ordinary appliances not liable for failure to furni.-h 
 unusual one; Crawford v. United R. & E. Co. 70 L.R.A. 489, which holds street 
 car company liable for injury to employee by defect in car due to custom in 
 leaving it for several hours of night in public street after inspection, without 
 rule or regulation for guarding from negligent or wanton injury. 
 Negligence is question for Jury. 
 
 Cited in Dooner v. Delaware & H. Canal Co. 164 Pa. 31, 30 Atl. 269, holding, 
 where inspector of cars young and incompetent, and freight car is received from 
 Another company without grab-iron or ladder, question of negligence for jury. 
 L.R.A. Au. Vol. I. 55. 
 
5 L.R.A. 439] L. E. A. CASES AS AUTHORITIES. 866 
 
 Servant's knowledge of defects. 
 
 Cited in Galveston, H. & S. A. R. Co. v. Slinkard, 17 Tex. Civ. App. 589, 
 44 S. W. 35, holding servant chargeable only with ordinary care in ascertainment 
 of danger incident to employment, and not precluded from recovery because he 
 might have gained knowledge of danger. 
 
 Cited in note (49 L. R. A. 47) on duty of servant to quit employment when ex- 
 posed to unusual danger. 
 
 Distinguished in Bemisch v. Roberts, 143 Pa. 10, 28 W. N. C. 172, 21 Atl. 998, 
 holding, when defect in appliance is so manifest that servant is bound to notice 
 and remedy it, he cannot recover for injury resulting therefrom. 
 Defects incident to risk of employment. 
 
 Distinguished in Bradbury v. Kingston Coal Co. 157 Pa. 243, 33 W. N. C. 97, 
 27 Atl. 400, holding, when defect not discoverable before accident, and same is 
 unknown, notwithstanding system of inspection, accident is incident to risk. 
 When master chargeable with knowledge. 
 
 Distinguished in Mensch v. Pennsylvania R. Co. 150 Pa. 610, 17 L. R. A. 453, 
 30 W. N. C. 552, 25 Atl. 31, holding railroad company not chargeable with knowl- 
 edge of defect in car, where system of inspection maintained, and inspectors not 
 incompetent. 
 Recovery for death on circumstantial evidence. 
 
 Cited in note (2 L.R.A. (N.S.) 905) on recovery for death on circumstantial 
 evidence. 
 
 5 L. R. A. 441, LEHIGH & W. COAL CO. v. HAYES, 128 Pa. 294, 15 Am. St. 
 
 Rep. 680, 18 Atl. 387. 
 Degree of care required of master in selecting appliances. 
 
 Followed in Norton v. Van Wickle, 12 Luzerne Leg. Reg. Rep. 119, holding 
 mine owner liable for injury to employee working in pocket from draw of coal, 
 where usual methods were used. 
 
 Cited in Innes v. Milwaukee, 96 Wis. 174, 70 N. W. 1064, holding master re- 
 quired to furnish such appliances only as are reasonably safe, and in general use; 
 Dooner v. Delaware & H. Canal Co. 171 Pa. 603, 33 Atl. 415, holding railroad 
 providing freight car without ladder, steps, or hand-holds not negligent, when 
 such cars in common use; Chicago & G. W. R. Co. v. Armstrong, 62 111. App. 
 234, holding master required to furnish only such appliances as are ordinarily 
 sufficient for purpose used, and such as, with reasonable care, can be used with- 
 out more danger than is ordinarily incident to business; McCarthy v. Boston 
 Duck Co. 165 Mass. 169, 42 N. E. 568, holding it within discretion of court 
 to exclude evidence of safer appliance, without offer to show it was commonly 
 used; Titus v. Bradford, B. K. R. Co. 136 Pa. 618, 26 W. N. C. 474, 20 Am. 
 St. Rep. 944, 20 Atl. 517, holding use of broad cars on narrow-gauge trucks not 
 negligence warranting recovery for death of brakeman. 
 
 Cited in footnote to Duntley v. Inman, P. & Co. 59 L. R. A. 785, which denies 
 liability for failure to furnish better belt shifter where that furnished was 
 safe if properly used. 
 
 Cited in notes (48 L.R.A. 70) on liability of employer for injuries to servant 
 from want of blocking at switches; (16 L.R.A. (N.S. ) 133) on furnishing servant 
 article in general use as measure of master's duty; (65 Am. St. Rep. 741) on 
 duty of railroads to furnish improved appliances; (87 Am. St. Rep. 568) on duty 
 of mine owners as to use of appliances similar to those in other mines; (98 
 Am. St. Rep. 293) on liability to servant for injuries due to defective machinery 
 and appliances; (37 L. ed. U. S. 728) on duty of master as to machinery and ap- 
 pliances. 
 
867 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 444 
 
 ! 
 
 Disapproved in effect in Geno v. Fall Mountain Paper Co. 68 Vt. 574, 35 Atl. 
 475, holding ''common use" of appliance not defense to action for injury from 
 its use, if not such as would commend it to prudent man in like circumstances. 
 Xes-lig-ence not Imputed from fact of injury. 
 
 Cited in Ash v. Verlenden Bros. 154 Pa. 249, 32 W. N. C. 199, 26 Atl. 374, 
 holding negligence cannot be presumed from mere fact of injury from machine 
 properly constructed; Sappenfield v. Main Street & Agri. Park R. Co. 91 Cal. 57, 
 
 27 Pac. 590, holding appliance not obviously dangerous, and proved safe from 
 use for long time, may be continued without imputation of negligence. 
 Liability of master for latent defects. 
 
 Cited in Johnson v. Boston & M. Consol. Copper & S. Min. Co. 16 Mont. 178, 
 40 Pac. 298, holding master required to furnisJi reasonably safe and suitable ma- 
 chinery, but not liable for latent defects. 
 Master's liability when place to work made dangerous by servants. 
 
 Cited in Devlin v. Phoenix Iron Co. 182 Pa. 114, 44 W. N. C. 431, 37 Atl. 927, 
 holding accumulation on floor of iron foundry of tools and materials used by 
 workmen not negligence of master. 
 
 Cited in footnote to Tradewater Coal Co. v. Johnson, 61 L. R. A. 161, which 
 holds master liable for failure of loaders to remove loose coal hanging in mine 
 rendering it unsafe for other employees. 
 
 5 L. R. A. 442, DEAN v. ST. PAUL UNION DEPOT CO. 41 Minn. 360, 16 Am 
 
 St. Rep. 703, 43 N. W. 54. 
 Dnty to keep premises safe for customers. 
 
 Cited in Corrigan v. Elsinger, 81 Minn. 47, 83 N. W. 492, holding storekeeper 
 inviting customers upon premises must keep them in reasonably safe condition; 
 Stuelpnagel v. Paper, C. & Co. Ill Minn. 5, 126 N. W. 281, holding that ware- 
 house owner is liable to patron for injury resulting from unguarded condition 
 of platform used in weighing goods. 
 
 Cited in note (86 Am. St. Rep. 509, 513, 514, 516, 520, 521), on liability of 
 property owner for nuisance which he did not create. 
 Liability for injury by third person. 
 
 Cited in footnotes to Henderson v. Dade Coal Co. 40 L. R. A. 95 which denies 
 liability of persons having custody of convict for damages for crime commit- 
 ted by him through failure to keep safely confined; Krantz v. Rio Grande W. R. 
 Co. 30 L. R. A. 297, which denies carrier's liability for unprovoked assault on 
 passenger after alighting at station, without effort by ticket agent to prevent 
 same; Exton v. Central R. Co. 56 L. R, A. 509, which holds carrier liable to 
 passenger at station for injury by scuffling cabmen. 
 Liability for servant's torts. 
 
 Cited in Cressy v. Republic Creosoting Co. 108 Minn. 355, 122 N. W. 484, 
 holding company furnishing creosoted blocks to city liable for assault by its 
 engineer on city's inspector; Swinarton v. Le Boutillier, 31 Abb. N. C. 283, 
 
 28 N. Y. Supp. 53, holding that storekeeper was liable to customer for loss of 
 eye resulting from mischievous snapping of pin by cash boy where habit existed 
 for some months. 
 
 Cited in note (33 L.R.A. (X.S.) 434) on liability of union depot company for 
 negligence of employees. 
 
 5 L. R. A. 444, TERRITORY v. DANIELS, 6 Utah, 288, 22 Pac. 159. 
 Taking of private property for public line. 
 
 Cited in Kaysville City v. Ellison, 18 Utah, 107, 43 L. R. A. 82, 72 Am. St. 
 
5 L.R.A. 444] L. R. A. CASES AS AUTHORITIES. 868 
 
 Rep. 772, 55 Pac. 386, and Ellison v. Linford, 7 Utah, 169, 25 Pac. 744, holding 
 municipal corporation cannot tax unbenefited farm lands for municipal pur- 
 poses; Linford v. Ellison, 155 U. S. 506, 39 L. ed. 240, 15 Sup. Ct. Rep. 179, 
 dismissing for want of jurisdiction appeal from judgment of territorial court 
 denying right of village to tax farm lands in unplatted part, unbenefited by mu- 
 nicipal government. 
 
 Cited in notes (34 L. R. ( A. 195, 200) on municipal taxation of rural lands 
 within corporate limits. 
 
 Distinguished in Cook v. Crandall, 7 Utah, 345, 26 Pac. 927, upholding tax 
 where premises were benefited by improvements and police protection, although 1 
 mile from platted city. 
 
 Disapproved in Kimball v. Grantsville City, 19 Utah, 398, 45 L. R. A. 637, 57 
 Pac. 1, holding that constitutional provision against taking private property for 
 public use without compensation does not limit state's taxing power. 
 Powers of territorial legislatures. 
 
 Approved in Mackey v. Enzensperger, 11 Utah, 174, 39 Pac. 541 (dissenting 
 opinion), majority upholding territorial act permitting verdict upon concurrence 
 of nine jurors. 
 
 Disapproved in Baca v. Perez, 8 N. M. 202, 42 Pac. 162, holding territorial 
 legislatures have power of apportioning offices subordinate to the use named 
 by Congress. 
 
 5 L. R. A. 449, AHERN v. STEELE, 115 N. Y. 203, 12 Am. St. Rep. 778, 22 N. 
 
 E. 193. 
 Liability for nuisance or negligence. 
 
 Cited in Morris v. Barrisford, 9 Misc. 15, 29 N. Y. Supp. 17, holding owner 
 liable for injury by fall of insecure awning; Finkelstein v. Huner, 77 App. Div. 
 427, 79 N. Y. Supp. 334, holding maintenance of leaky water closet, damaging 
 neighboring property, nuisance; Ackerman v. Cincinnati, S. & M. R. Co. 143 
 Mich. 62, 114 Am. St. Rep. 640, 106 N. W. 558, 8 A. & E. Ann. Cas. 118, hold- 
 ing a railroad company having authority to lease road was not liable for acts 
 done by the lessee in the subsequent maintenance and repair of the road; Stub- 
 ley v. Allison Realty Co. 124 App. Div. 167, 108 N. Y. Supp. 759. holding the 
 owner of a building was not liable for injuries caused by its collapse while in 
 course of construction, where the work done by an independent contractor, in 
 the absence of proof of negligence in selecting contractor or adopting plans; 
 Murphy v. Suburban Rapid Transit Co. 28 Jones & S. 25, 15 N. Y. Supp. 837, 
 holding defendants allowing the approaches to a bridge to become defective 
 were liable for injuries to plaintiff by reason thereof a duty being imposed on 
 defendant to maintain such approaches. 
 
 Cited in footnote to Rockport v. Rockport Granite Co. 51 L. R. A. 779, which 
 holds land owner liable for permitting guy rope to derrick to remain stretched 
 across highway. 
 
 Cited in note (9 L. R. A. 717) on liability for nuisance. 
 Of lessee. 
 
 Cited in Kuechenmeister v. Brown, 13 Misc. 141, 34 N. Y. Supp. 180, holding 
 lessee liable for maintaining nuisance; Lewy Art Co. v. Agricola, 169 Ala. 68, 
 53 So. 145, holding that tenant taking possession of building is liable for injury 
 from awning which constituted nuisance even though such nuisance existed be- 
 fore his occupation, provided he had notice of it; Andrus v. Bradley-Alderson Co. 
 117 Mo. App. 327, 93 S. W. 872, holding a tenant was not liable for an injury 
 to a servant because of the defective condition of an elevator, where such ele-~ 
 vator was used jointly by the several tenants of the building and was main- 
 
869 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 449 
 
 tainable by landlord; Ward v. Hinklejnan, 37 Wash. 380, 79 Pac. 956, hold- 
 ing a tenant was liable for the repair of an approach connecting the house with 
 the sidewalk. 
 
 Of lessor's grrnntee. 
 
 Cited in Lufkin v. Zane, 157 Mass. 121, 17 L. R. A. 253, 34 Am. St. Rp. 262, 
 31 N. E. 757, holding grantee subject to lease not liable for nuisance created by 
 tenant; Delaney v. New York Polyclinic Medical School & Hospital, 69 Misc. 626, 
 126 N. Y. Supp. 94, holding that vendee of premises subject to lease, who was 
 never in possession and never saw premises is not liable to person injured by 
 falling into coal hole in existence when purchase made. 
 
 Of lessor and lessee. 
 
 Cited in Prussak v. Button, 30 App. Div. 68, 51 N. Y. Supp. 761, holding 
 lessor and lessee liable for explosion of powder magazine. 
 
 Cited in note (61 L. R. A. 953) on liability as between owner and lessee for 
 safety of wharf or dock. 
 
 Distinguished in Woods v. Miller, 30 App. Div. 235, 52 N. Y. Supp. 217, hold- 
 ing neither lessor nor tenant liable to fireman stepping over party wall from 
 roof of adjoining house and falling down air shaft. 
 
 Of lessor to tenant. 
 
 Cited in Hines v. Willcox, 96 Tenn. 161, 34 L. R. A. 832, 54 Am. St. Rep. 
 823, 33 S. W. 914, holding landlord liable to tenant for defect existing at time 
 of lease, discoverable by reasonable diligence; Canavan v. Stuyvesant, 7 Misc. 
 118, 27 N. Y. Supp. 413, holding landlord of tenement liable for failure to cover 
 air shaft; Metzger v. Schultz, 16 Ind. App. 459, 59 Am. St. Rep. 323, 43 N. E. 
 886, holding lessor without knowledge of latent defect in plumbing done by for- 
 mer tenant not liable for gas explosion; Lindwall v. May, 111 App. Div. 459, 97 
 N. Y. Supp. 821, holding tenant might recover damages from landlord where 
 building rendered so unsafe by adjoining excavations that tenant was compelled 
 to vacate, it being possible for landlord to have kept building safe by the ex- 
 ercise of care. 
 
 Of lessor to third persons. 
 
 Cited in Fox v. Buffalo Park, 21 App. Div. 327, 47 N. Y. Supp. 788, holding 
 lessor of defective grandstand liable; Canandaigua v. Foster, 156 N. Y. 360, 
 41 L. R. A. 557, 66 Am. St. Rep. 575, 50 N. E. 971, holding lessor liable to public 
 for failure to repair sidewalk grating used by tenant; Hofferberth v. Myers, 42 
 App. Div. 189. 59 N. Y. Supp. 88, holding landlord liable for leaning of wall 
 damaging adjoining building, not beginning during lease; Stenberg v. Willcox, 
 96 Tenn. 171, 34 L. R. A. 619, 33 S. W. 917. holding landlord, chargeable with 
 knowledge liable to tenant's boarder for defect existing at time of lease un- 
 known to boarder: Timlin v. Standard Oil Co. 126 N. Y. 523, 22 Am. St. Rep. 
 84-T. 27 X. E. 786, holding lessor, chargeable with knowledge at time of lease of 
 nuisance dangerous to public or adjoining owner, liable; Hungerford v. Bent, 
 55 Hun, 6, 8 N. Y. Supp. 614. holding owner knowing of defect at time of lease 
 liable for injury to passerby; Schaefer v. Fond du Lac, 99 Wis. 339, 41 L. R. 
 A. 289 74 N. W. 810, holding lessor of street railroad with knowledge of exist- 
 ing defect liable to stranger; Schmidt v. Cook, 12 Misc. 453, 33 N. Y. Supp. 
 024. holding lessor, chargeable with knowledge of nuisance, liable for injury to 
 tenant's child; Babbage v. Powers, 26 N. Y. S. R. 801, 7 N. Y. Supp. 306; Xorl- 
 inp v. Allee, 37 N. Y. S. R. 411, 13 N. Y. Supp. 791; Miller v. New York, L. & 
 W. R. Co. 125 X. Y. 123. 26 N. E. 35, holding lessor out of possession not liable 
 for lessee's failure to repair; Sterger v. Van Sicklen, 132 X. Y. 501, 16 L. R. A. 
 641, 28 Am. St. Rep. 594, 30 N. E. 987, holding landlord covenanting to repair 
 
5 L.R.A. 449] L. R. A. CASES AS AUTHORITIES. 870 
 
 not liable to tenant's licensee; McKenzie v. Cheetham, 83 Me. 551, 22 Atl. 469, 
 holding landlord not liable to tenant's guest injured by defective stairway; 
 Curran v. Flammer, 49 App. Div. 295, 62 N. Y. Supp. 1061, holding lessor not 
 covenanting to repair not liable to tenant's customer for defect in sidewalk 
 grating not existing when premises leased; Schwalbach v. SI inkle, W. & K. Co. 
 97 Fed. 485, holding lessor not liable to employee injured by use of unsafe prem- 
 ises by lessee renting with knowledge thereof; Leaux v. New York, 87 App. Div. 
 403, 84 N. Y. Supp. 514, holding lessor not liable to employee of tenant for 
 injury from hole in sewer; Tedescki v. Berger, 150 Ala. 651, 11 L.R.A. (N.S.) 
 1062, 43 So. 960, holding a person whose home is adjoining a house of prostitu- 
 tion is entitled to an injunction against the lessor of the premises who is aware 
 of the use to which premises are put; Washington v. Episcopal Church of St. 
 Peter's, 111 App. Div. 403, 97 N. Y. Supp. 1072, holding the lessor of a building 
 was not liable to one falling down an unguarded elevator shaft, it not being 
 shown defect existed on the lease of the building; Uggla v. Brokaw, 117 App. 
 Div. 590, 102 N. Y. Supp. 857, holding lessor was not liable for personal injuries 
 to a traveler on a street struck by a skylight blown from the building where at 
 the time the building was entirely under control of tenant; Lusk v. Peck, 132 
 App. Div. 431, 116 N. Y. Supp. 1051, holding defendant leasing grounds for 
 the exhibition of a football game was liable for injuries received by a spectator 
 by reason of the defective condition of the premises existing at time lease was 
 made; Keeler v. Lederer Realty Corp. 26 R. I. 529, 59 Atl. 855, holding where 
 a landlord demises premises which are so out of repair as to be a nuisance he is 
 liable for injuries to a third person, although tenant bound to keep the premises 
 in repair; Hirschfield v. Alsberg, 47 Misc. 143, 93 N. Y. Supp. 617, on liability 
 of lessor of building to third persons for injuries due to defective condition 
 thereof; McLaughlin v. Kelly, 230 Pa. 258, 79 Atl. 552, holding that owner is 
 liable to third person for injury resulting from defective sidewalk if defect 
 existed at time he leased premises. 
 
 Cited in footnotes to Fellows v. Gilhuber, 17 L. R. A. 578, which holds lessor 
 of hotel not liable for injury to guest by defective awning; Lufkin v. Zane, 17 
 L. R. A. 251, which holds landlord not liable for tenant's unauthorized use of 
 premises, constituting nuisance. 
 
 Cited in notes (26 L. R. A. 203) on landlord's liability to third person for 
 condition of premises in tenant's possession; (34 L. R. A. 615) on liability of 
 landlord for injuries to tenant's guests and servants from defect in premises: 
 (11 L. R. A. 361) on wilful negligence of owner of premises as to keeping build- 
 ing in safe condition; (9 L. R. A. 799) as to when lessor is bound to keep prem- 
 ises in repair; (92 Am. St. Rep. 505, 507, 508, 514, 517, 530, 532) on liability 
 to third persons of lessors of real or personal property; (15 Eng. Rul. Cas. 
 341, 342) on liability of landlord letting premises in defective condition. 
 
 Distinguished in Matthews v. De Groff, 13 App. Div. 359, 43 N. Y. Supp. 
 237, holding landlord liable for coal hole originally in repair, in dangerous 
 condition at beginning of tenant's successive term. 
 Notice of; when necessary. 
 
 Cited in Philadelphia & R. R. Co. v. Smith, 64 Fed. 682, 27 L. R. A. 133, 12 
 C. C. A. 387, 28 U. S. App. 134, and Orvis v. Elmira, C. & N. R. Co. 17 App. 
 Div. 191, 45 N. Y. Supp. 367, holding grantee not liable for existing, but not 
 obvious, nuisance until notice and request to abate; Van Duzer v. Elmira, C. 
 
 6 N. R. Co. 75 Hun, 489, 27 N. Y. Supp. 474, holding grantee of premises not 
 liable for existing nuisance unless chargeable with notice; Steinke v. Bentley, 
 6 Ind. App. 669, 34 N. E. 97, holding notice to abate unnecessary where pur- 
 chaser assisted in creating nuisance ; Graham v. Chicago, I. &. L. R. Co. 39 Ind. 
 
871 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 464 
 
 App. 315, 77 N. E. 1055 (dissenting opinion), on notice of nuisance as necessary 
 to create a liability therefor; Beauchamp v. Excelsior Brick Co. 143 App. Div. 
 52, 127 X. Y. Supp. 686, holding that purchaser of land upon which nuisance 
 exists is not liable therefor until he has had notice and reasonable time to 
 abate it. 
 
 Cited in footnote to Philadelphia & R. R. Co. v. Smith, 27 L. R. A. 131, which 
 holds liability for continuing nuisance created by another dependent on prior 
 notice and request to remove. 
 
 Cited in note (27 L.R.A. (N.S.) 166) on necessity of notice to impose lia- 
 bility for continuing nuisance created by predecessor. 
 
 Distinguished in Vaughan v. Buffalo, R. & P. R. Co. 72 Hun, 472, 25 N. Y. 
 Supp. 246, holding successor to title of railroad company liable without notice 
 of continuing defect in original construction of highway; Valparaiso v. Bozarth, 
 153 Ind. 539, 47 L. R. A. 488, 55 N. E. 439, holding notice unnecessary before 
 bringing action against one creating nuisance. 
 
 Disapproved in Martin v. Chicago, R. I. & P. R. Co. 81 Kan. 347, 27 L.R.A. 
 (N.S.) 167, 105 Pac. 451, holding no notice and request to abate a nuisance 
 was necessary to hold the lessees of a railroad liable for injuries to stock 
 received from the existence of an excavation not properly guarded, defendant 
 having knowledge of its existence. 
 
 I, ease of trust property. 
 
 Cited in South End Warehouse Co. v. Lavery, 12 Cal. App. 453, 454, 457, 107 
 Pac. 1008, holding where trustees under a will were to stand seized of the real 
 property in trust to apply the income to the support of testator's daughter 
 during her life, they could not lease the estate for a period extending beyond 
 the life of the daughter. 
 
 Distinguished in Re New York, 81 App. Div. 32, 81 N. Y. Supp. 32, denying 
 power of trustee under will to lease beyond duration of trust. 
 
 Ancestor's knowledge not impotable to heirs. 
 
 Cited in Rice v. Ward, 92 Tex. 708, 51 S. W. 844, holding knowledge of maker 
 of deed intended as mortgage not imputable to heirs. 
 Damages for causing; death by negligence. 
 
 Cited in Gubbitosi v. Rothschilds, 37 Misc. 100, 74 N. Y. Supp. 775, holding 
 $200 for death of six year old boy inadequate. 
 Receivers as officers of conrt. 
 
 Cited in Stannard v. Robert H. Reid & Co. 118 App. Div. 314, 103 N. Y. 
 Supp. 521, on receivers as being officers of the court rather than agents of the 
 parties for whom appointed. 
 
 5 L. R. A. 464, PRINCE STEAM SHIPPING CO. v. LEHMANN, 39 Fed. 704. 
 
 Report of later appeal in 50 Fed. 115. 
 Stipulations ousting courts'* jurisdiction. 
 
 Cited in Mutual Reserve Fund Life Asso. v. Cleveland Woolen Mills, 27 C. C. 
 A. 214, 54 U. S. App. 290, 82 Fed. 510, and Healy v. Eastern Bldg. & L. Asso. 
 17 Pa. Super. Ct. 393, holding stipulation in contract that action shall be brought 
 in certain court invalid; Slocum v. Western Assur. Co. 42 Fed. 236, holding 
 stipulation for jurisdiction of foreign court in foreign marine insurance policy 
 invalid; Knorr v. Bates, 14 Misc. 503, 35 N. Y. Supp. 1060, holding stipulation 
 that no suit shall be brought on contract void; The Tampico, 151 Fed. 693, on 
 validity of stipulations ousting court's jurisdiction; Gough v. Hamburg Ameri- 
 kanische Packetfahrt Aktiengesellschaft, 158 Fed. 175, holding a provision in 
 a bill of lading that any disputes thereunder shall be determined by the law 
 
5 L.R.A. 464] L. R. A. CASES AS AUTHORITIES. 872 
 
 of a foreign country does not prevent an admiralty court of the United States 
 from taking jurisdiction. 
 
 5 L. R. A. 465, CHENEY v. DUNLAP, 27 Neb. 401, 43 N. W. 178. 
 Who may set up usury. 
 
 Cited in Building & Loan Asso. v. Walker, 59 Neb. 458, 81 N. W. 308, and 
 McKnight v. Phelps, 37 Neb. 859, 56 N. W. 722, holding foreclosure of equity 
 of redemption cannot set up usury in mortgage contract in action to foreclose; 
 Higbee v. JEtna Bldg. & L. Asso. 26 Okla. 330, 109 Pac. 236, Ann. Gas. 1912B, 
 223, holding that purchaser at bankrupt sale subject to mortgage cannot ques- 
 tion mortgage because of usury. 
 
 Cited in note (41 L. R. A. 711) on who may urge usurious character of debt 
 preferred in assignment for creditors. 
 
 Distinguished in Male v. Wink, 61 Neb. 750, 86 N. W. 472, holding mortgagor 
 entitled to defense in spite of sale of equity of redemption to third party: 
 National Mut. Bldg. & L. Asso. v. Retzman, 69 Neb. 672, 96 N. W. 204, holding 
 the purchaser of an equity of redemption, taking subject to a mortgage and 
 deducting from the purchase price sufficient to pay the mortgage is not estopped 
 to set up usury as a defense when the vendee and mortgagor at time of sale 
 agree that the encumbrance is usurious and only enough is retained out of 
 purchase price to pay the encumbrance; Bolen v. Wright, 89 Xeb. 119, 131 N. 
 W. 185, holding that usury may be pleaded by partner who for consideration, 
 has assumed payment of firm debt, although after dissolution he has renewed 
 usurious note by giving note in his own name. 
 
 5 L. R. A. 467, NEWMAN v. BANK OF CALIFORNIA, 80 Cal. 368, 13 Am. St. 
 
 Rep. 169, 22 Pac. 261. 
 Privity of estate. 
 
 Cited in Spotts v. Hanley, 85 Cal. 170, 24 Pac. 738, holding that suit to re- 
 cover property from tenant stops running of statute of limitations in favor of 
 landlord. 
 Rights of tenant in common. 
 
 Cited in Homer v. Ellis, 75 Kan. 678, 121 Am. St. Rep. 446, 90 Pac. 275, 
 holding a tenant in common was entitled to recover the possession of the entire 
 tract of land as against one in possession who had no title thereto but a lien 
 thereon for taxes paid; Keefe v. Doreland, 16 Mont. 20, 39 Pac. 916, holding 
 in ejectment for an undivided interest in a mining claim a judgment for the 
 entire claim is erroneous; Illinois Steel Co. v. Witsotski, 146 Wis. 571, 131 
 N. W. 848, to the point that one who has undivided interest in property is 
 entitled to possession against all persons except his cotenant. 
 
 Cited in note (50 Am. St. Rep. 839, 842) on action by cotenant to recover 
 possession of property of cotenancy. 
 
 Disapproved in Williams v. Coal Creek Min. & Mfg. Co. 115 Tenn. 580, 6 
 L.R.A. (N.S.) 714, 112 Am. St. Rep. 878, 93 S. W. 572, 5 A. & E. Ann. Cas. 
 822, holding a tenant in common was entitled to recover only the portion of the 
 premises to which showed title. 
 
 Judgment in favor of tenant in common as inuring- to benefit of co- 
 tenants. 
 
 Cited in Cassin v. Nicholson, 154 Cal. 503, 98 Pac. 190, holding a recovery 
 in ejectment by a tenant in common against an adverse claimant operates to- 
 prevent acquisition of title by adverse possession pending the action as against 
 cotenants not suing. 
 
873 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 470 
 
 5 L. R. A, 470, COM. v. FLEMING, 130 Pa. 138, 17 Am. St. Rep. 763, 18 Atl. 
 
 622. 
 Situs of sale. 
 
 Cited in Perlman v. Sartorius, 162 Pa. 324, 42 Am. St. Rep. 834, 29 Atl. 852, 
 holding sale on order taken in Pennsylvania for goods located in Maryland at 
 stipulated price without abatement for freight, sale in Maryland completed by 
 delivery to carrier; Halpin v. Kimball, 9 Kulp, 405, holding sale complete at 
 situs of vendor, where goods set aside and shipped in pursuance of purchaser's 
 order; Com. v. Gardner, 16 Montg. Co. L. Rep. 175, holding orders obtained by 
 agents in other counties, sent to vendor, accepted, goods set apart, and delivered 
 to carrier, sale at vendor's situs, though sent care of agent at vendee's situs; 
 Indiana County Licenses, 6 Pa. Dist. R. 363, in discussion of administration of 
 license law by license judge; Keller v. State, Tex. Grim. Rep. , 1 L.R.A. 
 (N.S.) 494, 87 S. W. 669, on a sale of goods as being complete at the place of de- 
 livery to the carrier; Puritan Mfg. Co. v. Roberts, 33 Pa. Co. Ct. 370, on title of 
 consignee of goods as vesting on a delivery thereof to the carrier. 
 
 Cited in note (23 Eng. Rul. Gas. 385) on retention of title on conditional 
 sale of goods, shipped C. O. D. 
 
 Of intoxicating- liquors. 
 
 Cited in Com. v. Hess, 148 Pa. 103, 17 L. R. A. 180, 33 Am. St. Rep. 810, 23 
 Atl. 977, upholding validity of sales to parties outside licensed county on orders 
 received within, filled on credit, by delivery either by wagon or rail; Com. v. 
 Holstine, 132 Pa. 362, 19 Atl. 273, upholding conviction of driver of licensee, 
 who took orders for and collected price of liquors in county not covered by em- 
 ployer's license, though liquor loaded at licensed store; State v. Mullin, 78 
 Ohio St. 369, 18 L.R.A.(N.S.) 613, 125 Am. St. Rep. 710, 85 N. E. 556, holding 
 a sale of intoxicating liquor C. 0. D. was complete at the place of delivery to 
 carrier; State v. Rosenberger, 212 Mo. 655, 20 L.R.A.(N.S.) 286, 126 Am. St. 
 Rep. 580, 111 S. W. 509, holding a sale of intoxicating liquor C. O. D. being 
 complete at the place of delivery to carrier a nonresident could not be con- 
 victed of a local option law in selling liquor to a resident of a local option 
 county; Re Washington County Licenses, 57 Pittsb. L. J. 520, 37 Pa. Co. Ct. 
 97; Com. v. Guinzburg, 46 Pa. Super. Ct. 493; Com. v. Weinstein, 11 Del. Co. 
 Rep. 9, to the point that sale of liquor takes place in county where delivered 
 to carrier although it was shipped in response to mail order C. O. D. ; Merri- 
 weather v. State, 48 Tex. Crim. Rep. 82, 86 S. W. 332, holding a liquor dealer 
 by selling intoxicating liquors C. 0. D. to a person in a town where he had no 
 license did not violate the liquor license law the sale being complete on a 
 delivery to the express company; Jones v. United States, 24 L.R.A. (X.S. ) 146, 
 95 C. C. A. 213, 170 Fed. 3, holding a retail liquor dealer is not subject to 
 prosecution for carrying on business without paying a special revenue tax by 
 shipping liquor from stock C. 0. D. to a purchaser at another point: Com. 
 v. Pollak, 33 Pa. Super. Ct. 602, on sales by brewing company to customers 
 in another county as being complete where liquor is delivered to carrier; Com. 
 v. Guja, 28 Pa. Super. Ct. 60, on liquor dealer under his license having the 
 right to ship directly to customers beyond the county in which he is licensed. 
 
 Cited in notes (22 L. R. A. 426) on passing of title to property by delivery 
 thereof to carrier for transportation to consignee or vendee; (7 L. R, A. 184) 
 on validity of statutes relating to imported liquors; (2 L.R.A. (X.S.) 383; 6 
 L.R.A. (X.S.) 631) as to where title passes upon shipment of liquor C. 0. D. 
 
 Distinguished in Com. v. Munk, 1 Pa. Super. Ct. 483, 38 W. N. C. 160, hold- 
 ing agent taking orders in unlicensed county, accepted and filled by employer 
 in licensed county through carrier, not guilty of violation of liquor law. 
 
5 L.R.A. 470] L. E. A. CASES AS AUTHORITIES. 874 
 
 Liability of carrier C. O. D. 
 
 Cited in State v. Cairns, 64 Kan. 786, 58 L. R. A. 57, footnote, p. 55, 68 Pac. 
 621, holding agent of express company, who delivers to consignee and collects 
 C. O. D. charges, not guilty of selling intoxicating liquors though aware of 
 character of contents of package; Crabb v. State, 88 Ga. 589, 15 S. E. 455, hold- 
 ing express agent delivering whiskey C. O. D. in county where sale prohibited, 
 liable to indictment where he had reason to suspect character of package; Mun- 
 sell v. Carthage, 105 111. App. 122, and Carthage v. Duvall, 202 111. 238, 66 N. 
 E. 1099, holding that title passed on delivery of liquor to carrier C. O. D. 
 United States v. Orene Parker Co. 121 Fed. 598, and United States v. Adams 
 Exp. Co. 119 Fed. 244, holding that title to liquor passed to consignee on deliv- 
 ery to carrier who collected price. 
 Reversal of verdict for Insufficiency of evidence. 
 
 Cited in Com. v. McManus, 143 Pa. 93, 14 L. R. A. 93, 22 Atl. 761 (concur- 
 ring opinion) as to power of supreme court to reverse conviction for insuffi- 
 ciency of evidence. 
 
 5 L. R, A. 476, AUSTIN v. GAGAN, 14 Sawy. 151, 39 Fed. 626. 
 Time for removal of cause to Federal court. 
 
 Cited in Beyer v. Soper Lumber Co. 76 Wis. 151, 44 N. W. 750; Nichols v. 
 Stevens, 123 Mo. 120, 45 Am. St. Rep. 514, 25 S. W. 578; Howard v. Southern 
 R. Co. 122 N. C. 947, 29 S. E. 778; Martin v. Carter, 48 Fed. 598, holding 
 stipulation of parties extending time to answer does not enlarge time within 
 which to remove; Price v. Lehigh Valley R. Co. 65 Fed. 826; Ruby Canyon Gold 
 Min. Co. v. Hunter, 60 Fed. 305; Rock Island Nat. Bank v. J. S. Keator Lumber 
 Co. 52 Fed. 898, holding order of court extending time to answer in pursuance 
 of stipulation of pai'ties does not enlarge time to remove; Velie v. Manufactur- 
 ers' Acci. Indemnity Co. 40 Fed. 548, holding extension of time to file answer 
 does not extend time within which to file petition for removal ; Spangler v. Atchi- 
 son, T. & S. F. R. Co. 42 Fed. 306, holding petition cannot be filed after third 
 day of term in Missouri, although time for answer extended by order of court; 
 McDonald v. Hope Min. Co. 48 Fed. 594, holding time not enlarged by filing 
 of demurrer to complaint; Brigham v. C. C. Thompson Lumber Co. 55 Fed. 883, 
 remanding case where petition filed after expiration of time to answer, proceed- 
 ings in state court having been taken after previous remand for want of ju- 
 risdictional facts in petition; Bowers v. Supreme Council American L. of H. 
 45 Fed. 81, holding that cause not lawfully removed within prescribed time 
 will be remanded sua sponte by Federal court; Wilson v. Big Joe Block Coal 
 Co. 135 Iowa, 535, 113 N. W. 348, 14 A. & E. Ann. Gas. 266, holding a petition 
 for the removal of a cause to the Federal courts must be made at or before 
 the time defendant is required by the state laws or rules of the state court to 
 plead. 
 
 Distinguished in Wilcox & G. Guano Co. v. Phoenix Ins. Co. 60 Fed. 932, hold- 
 ing removal properly granted after the twenty days within which to answer, 
 where petition filed within time to answer as extended by special order of court; 
 Lord v. Lehigh Valley R. Co. 104 Fed. 929, upholding removal in second circuit 
 after time to answer, but within time as extended by order of court; Muir v. 
 Preferred Acci. Ins. Co. 203 Pa. 342, 63 Atl. 158, granting removal after expira- 
 tion of time to answer, where application filed within time extended by stipu- 
 lations of parties; Tevis v. Palatine Ins. Co. 149 Fed. 561, holding where 
 plaintiff's counsel stipulated in writing that defendant might have an extension 
 of time in which to plead, plaintiff could not object that defendant might not 
 file a petition for a removal of the cause within such time. 
 
875 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 478 
 
 Grounds for removal of cause. 
 
 Cited in Blue Bird Min. Co. v. Largey, 49 Fed. 291, holding dispute as to 
 identity of veins of ore in mineral grants, solely question of fact not supporting 
 removal; Myrtle v. Nevada, C. & O. R. Co. 137 Fed. 195, holding an action 
 in a state court to recover for personal injuries by reason of defendant's failure 
 to properly equip cars with safety appliances was not removable to federal 
 court merely because of an allegation of complaint that defendants were engaged 
 in interstate commerce; Harris v. Rosenberger, 13 L.R.A. (N.S.) 765, 76 C. C. A. 
 225, 145 Fed. 453, on the constitutionality of a statute not being ground for 
 removal where such question has been passed on by United States Supreme 
 Court. 
 
 Cited in note (11 L. R. A. 572) on hearing and determination of right to re- 
 moval of cause for prejudice or local influence. 
 Federal statute Involved. 
 
 Cited in Fitzgerald v. Missouri P. R. Co. 45 Fed. 819, holding fact that Federal 
 law involved in case not ground for removal where no dispuie as to its meaning; 
 Murray v. Bluebird Min. Co. 45 Fed. 386, remanding cause where dispute is 
 merely upon immaterial point, or upon mixed question of law and fact determin- 
 able by jury; Southern P. R. Co. v. Whittaker, 47 Fed. 530, refusing removal in 
 action of ejectment in which plaintiff's title based on Federal statutes, validity of 
 which is admitted by defendant; Butler v. Shafer, 67 Fed. 163, remanding cause 
 where petition in ejectment involved merely determination whether defendant 
 claimed under one or the other Federal grant : Nelson v. Southern R. Co. 172 
 Fed. 479, holding an action for personal injuries based on a Federal statute 
 is not removable where declaration contains no suggestion that the result of 
 the suit will involve a construction of such act. 
 Petition for removal of cause. 
 
 Cited in State ex rel. Tillman v. Coosaw Min. Co. 45 Fed. 811, holding practice 
 to consider petition for removal part of record in determination of jurisdiction 
 of Federal court, not altered by act of 1887. 
 
 Cited in footnote to Herndon v. J^tna F. Ins. Co. 10 L. R. A. 53, which holds 
 petition for removal of cause not aided by allegations as to residence in 
 complaint. 
 
 5 L. R, A. 478, WESTCHESTER F. INS. CO. v. WEAVER, 70 Md. 536, 17 Atl. 
 
 401, 18 Atl. 1034. 
 Vacancy of Insnred property. 
 
 Cited in Agricultural Ins. Co. v. Hamilton, 82 Md. 91, 30 L. R. A. 634, 51 Am. 
 St. Rep. 457, 33 Atl. 429, holding house not actually used as place of abode vacant 
 within meaning of policy. 
 Ownership of insured property. 
 
 Cited in Hartford F. Ins. Co. v. Keating, 86 Md. 145, 63 Am. St. Rep. 499, 38 
 Atl. 29, holding title must be completely vested tc be sole and unconditional own- 
 ership wit.iin policy; Hebner v. Palatine Ins. Co. 157 HI. 149, 41 N. E. 627, 
 holding half ownership avoids policy requiring sole ownership; McWilliams v. 
 Cascade F. & M. Ins. Co. 7 Wash. 52, 34 Pac. 140, holding entire policy avoided 
 where ownership of one of articles insured was conditional; Phoenix Ins. Co. v. 
 Public Parks Amusement Co. 63 Ark. 201, 37 S. W. 959, holding ownership not 
 unconditional, title being reserved in vendor pending payment; Win. Skinner & 
 Sons' Ship-Building & Dry-Dock Co. v. Houghton, 92 Md. 94, 84 Am. St. Rep. 485, 
 48 Atl. 85, holding policy avoided by contract for sale, as change of interest 
 without consent of insurer, within terms of policy; Dow v. National Assur. 
 
5 L.R.A. 478] L. R. A. CASES AS AUTHORITIES. 876 
 
 Co. 26 R. I. 380, 67 L.R.A. 479, 106 Am. St. Rep. 728, 58 Atl. 999, holding a 
 policy of insurance on household goods containing a condition that the interest 
 should be unconditional would not cover a piano purchased on the installment 
 plan; Glens Falls Ins. Co. v. Michael, 167 Ind. 690, 8 L.R,A.(N.S.) 720, 74 
 N. E. 964 (dissenting opinion), on the peremptory character of a condition 
 of a policy that the insured be the unconditional owner of the property. 
 
 Cited in notes (11 L.R.A. 599) on what are insurable interests; (20 L.R.A. 
 (N.S. ) 779) on vendee under land contract as owner within meaning of insurance 
 policy; (29 Am. St. Rep. 909) on representations as to encumbrances as to 
 insured property. 
 
 Distinguished in Citizens' Mut. F. Ins. Co. v. Conowingo Bridge Co. 113 Md. 
 447, 77 Atl. 378, holding that policy is not avoided because of existence of 
 mortgage not disclosed, under clause making it void if title is other than 
 unconditional. 
 Sufficiency of compliance with stipulations of tbe policy. 
 
 Cited in Reynolds v. German American Ins. Co. 107 Md. 117, 15 L.R.A.(N.S.) 
 349, 68 Atl. 262, holding where an insurance policy contained a clause that 
 an inventory be taken within a certain time from date of policy or it should 
 be void, the policy was not enforceable where such inventory was not taken 
 fourteen days after the expiration of the required time. 
 Construction of Insurance policies. 
 
 Cited in McEvoy v. Security F. Ins. Co. 110 Md. 279, 22 L.R.A.(N.S.) 966, 
 132 Am. St. Rep. 428, 73 Atl. 157, on insurance policies as to be construed as 
 other contracts. 
 
 5 L. R. A. 480, BAYLES v. KANSAS P. R. CO. 13 Colo. 181, 2 Inters. Com. Rep. 
 643, 22 Pac. 341. 
 
 Report of second appeal in Kansas P. R. Co. v. Bayles, 19 Colo. 350, 35 Pac. 
 744. 
 Unjust discrimination by carriers. 
 
 Cited in Cleveland C. C. & I. R. Co. v. Closser, 126 Ind. 353, 9 L. R. A. 757, 3 
 Inters. Com. Rep. 391, 22 Am. St. Rep. 593, 26 N. E. 159, holding discrimination 
 without partiality inoffensive; Western U. Teleg. Co. v. Call Pub. Co. 44 Neb. 
 338, 27 L. R. A. 626, 48 Am. St. Rep. 729, 62 N. W. 506, holding difference in 
 rates under substantially similar circumstances, unjust discrimination; Interstate 
 Commerce Commission v. Baltimore & 0. R. Co. 3 Inters. Com. Rep. 201, 43 Fed. 
 55, holding "party rate" tickets for parties of ten, at reduced fare, not unjust 
 discrimination; Haurigan v. Chicago & N. W. R. Co. 80 Neb. 138, 113 N. W. 
 983, 16 A. & E. Ann. Cas. 450, holding a shipper paying freight in excess of 
 contract price might recover such excess although the rate which was agreed 
 to by mistake was less than that given to other shippers. 
 
 Cited in footnote to Western U. Teleg. Co. v. Call Pub. Co. 27 L. R. A. 622, 
 which authorizes difference in telegraph rates to morning and evening papers. 
 
 Cited in note (22 Am. St. Rep. 611) on carrier's right to discriminate. 
 Sufficiency of pleadings. 
 
 Cited in Rosebud Min. & Mill Co. v. Hughes, 16 Colo. App. 164, 64 Pac. 247, 
 holding complaint entitling plaintiff to any relief will withstand demurrer as to 
 insufficiency; Devino v. Central Vermont R. Co. 63 Vt. 103, 20 Atl. 953, holding 
 counts in negligence action not demurrable because of too many items of damage. 
 
 5 L. R. A. 493, CAMERON v. WHITE, 74 Wis. 425, 43 N. W. 155. 
 i !!! 1 and equitable causes of action. 
 
 Cited in Aultman Co. v. McDonough, 110 Wis. 269, 85 N. W. 980, holding, in 
 
877 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 496 
 
 case involving legal and equitable action, latter should be first tried; Krakow 
 v. Wille, 125 Wis. 286, 103 X. W. 1121, 4 A. & E. Ann. Cas. 1016, holding a 
 cause of action for the reformation of a contract for the sale of land and over 
 for damages for injury to the freehold by the cutting of trees by the vendor 
 after the making of the contract may be properly joined. 
 Performance by plaintiff. 
 
 Cited in Corbett v. Anderson, 85 Wis. 224, 54 N. W. 727, holding plaintiff en- 
 titled to abandon contract for hauling logs on defendant's breach; Walsh v. My- 
 ers, 92 Wis. 402, 66 N. W. 250, holding, on defendant's breach of contract to take 
 lye cans and failure to demand further performance, unnecesary for plaintiff to 
 keep in readiness to perform ; Tufts v. Weinfeld, 88 Wis. 652, 60 N. W. 992, hold- 
 ing, on countermand of order for soda water fountains, vendor cannot continue 
 their manufacture so as to charge full price. 
 Reformation of contract. 
 
 Cited in footnote to Bigham v. Madison, 47 L. R. A. 267, which authorizes re- 
 scission for mutual mistake as to location of boundary lines pointed out by 
 vendor. 
 
 Cited in note (117 Am. St. Rep. 237) on mistakes for which written instru- 
 ments may be cancelled or corrected in equity. 
 Damages for breach of contract. 
 
 Cited in Corbett v. Anderson, 85 Wis. 224, 54 N. W. 727, holding plaintiff en- 
 titled to recover profits on abandoning contract for hauling logs after defend- 
 ant's breach ; Walsh v. Myers, 92 Wis. 402, 66 N. W. 250, holding plaintiff entitled 
 to recover profits he would have made by furnishing lye cans, on defendant's breach 
 of contract to take; Sullivan v. McMillan, 37 Fla. 140, 53 Am. St. Rep. 239, 19 
 So. 340, holding, on breach of contract for hauling logs by defendant, plaintiff not 
 bound to seek similar contracts to protect himself from loss; Gardner v. Deeds, 
 116 Tenn. 138, 4 L.R.A.(N.S.) 746, 92 S. W. 518, 7 A. & E. Ann. Cas. 1172, 
 holding a manufacturer might recover for a breach of contract to purchase 
 buggies, to be ordered as needed, the profits he would have made, where he had 
 before the breach purchased the material for their construction; Duke v. Xorfolk 
 & W. R. Co. 106 Va. 158, 55 S. E. 548, holding on breach of contract by railroad 
 company to purchase a quantity of cross-ties, the seller may recover the differ- 
 ence between the contract price and the cost of making and delivering; W. J. 
 Holliday & Co. v. Highland Iron & Steel Co. 43 Ind. App. 352, 87 N. E. 249, 
 on measure of damages for breach of contract; Carolina Portland Cement Co. 
 v. Columbia Improv. Co. 3 Ga. App. 491, 60 S. E. 279, on right to have a 
 recovery of anticipated profits as damages for breach of contract; Richey v 
 Union Cent. L. Ins. Co. 140 Wis. 491, 122 X. W. 1030, on the recovery of the 
 loss of profits as damages. 
 
 Cited in notes (52 L.R.A. 255) on loss of profits of sale or purchase as dam- 
 ages; (4 L.R.A. (X.S.) 742) on measure of damages for purchaser's refusal to 
 accept goods specially manufactured; (21 Am. St. Rep. 121) on measure of 
 damages for breach of contract. 
 
 5 L. R. A. 496, LIEBSCHER v. KRAUS, 74 Wis. 387, 17 Am. St. Rep. 171, 43 X. 
 
 W. 166. 
 Parol evidence to explain \vritten contract. 
 
 Cited in Ball v. McGeoch, 81 Wis. 171, 51 X. W. 443, holding parol evidence 
 admissible to show fraud in procuring signature to written agreement; Elofrson 
 v. Lindsay, 90 Wis. 205, 63 X. W. 89, holding, in ejectment, parol evidence not 
 admissible to show that conveyances intended to cover land in controversy; 
 
5 L.R.A. 49G] L. R. A. CASES AS AUTHORITIES. 878 
 
 Swarts v. Cohen, 11 Ind. App. 23, 38 N. E. 536, holding note signed "National, 
 etc., Co., Mark Swarts, president," ambiguous, and parol evidence admissible; 
 Holt v. Sweetzer, 23 Ind. App. 242, 55 X. E. 254, holding parol evidence admissible 
 to explain ambiguous note; Mathews v. Dubuque Mattress Co. 87 Iowa, 53, 19 
 L. R. A. 682, 54 N. W. 225 (dissenting opinion), majority holding on note "we 
 promise to pay," signed "'Dubuque Mattress Co., John Knopp, Pt.," Knopp person- 
 ally liable, and parol evidence inadmissible; Wiers v. Treese, 27 Okla. 777, 117 
 Pac. 182, holding that note signed by individual with representative description 
 may be shown to have been intended to bind individual. 
 
 Cited in notes (20 L.R.A. 706) on admissibility of extrinsic evidence to show 
 who is liable as maker of note; (21 L.R.A. (N.S.) 1085) on parol evidence to 
 charge principal on note executed by agent. 
 Corporation notes. 
 
 Cited in Reeve v. First Nat. Bank, 54 N. J. L. 211, 16 L. R. A. 145, footnote p. 
 143, 33 Am. St. Rep. 675, 23 Atl. 853, holding note "we promise to pay," signed 
 "Warrick Glass Works, J. Price Warrick, Prest.," corporation's note; Nunne- 
 macher v. Poss, 116 Wis. 448, 92 N. W. 375, holding corporation and officers 
 bound as individuals on note signed with corporate name, by officers without offi- 
 cial designation; American Nat. Bank v. Omaha Coffin Mfg. Co. Neb. (Unof.) 
 324, 95 N. W. 672, holding note signed by president and secretary, with official 
 designation, corporate note; Aungst v. Creque, 72 Ohio St. 558, 74 N. E. 
 1073; English & S. A. Mortg. & Invest. Co. v. Globe Loan & T. Co. 70 Neb. 
 436, 97 N. W. 612, 6 A. & E. Ann. Gas. 999, holding a note signed with the 
 name of the corporation with the names of the president and secretary desig- 
 nated by their official title did not create any personal liability on the part of 
 such officials; Germania Nat. Bank v. Mariner, 129 Wis. 546, 109 N. W. 574, 
 holding on a note signed "the Northwestern Straw Works, "E. R. Stillman, 
 Treas. "John W. Mariner," it appearing that Mariner was secretary, there was 
 no personal liability on his part; Derby v. Gustafson, 131 111. App. 283, on 
 when officers signing are liable on note made for benefit of corporation. 
 
 Cited in notes (19 L.R.A. 676) on personal liability of officers on note made 
 for corporation; (21 L.R.A. (N.S.) 1060) on liability of principal on negotiable 
 paper executed by agent; (21 Am. St. Rep. 342) on personal liability of cor- 
 porate directors; (48 Am. St. Rep. 919) on personal liability of corporate 
 officers to third persons; (4 Eng. Rul. Cas. 283, 285, 286) on liability of one 
 signing bill or note as agent. 
 
 5 L. R. A. 498, TREADWELL v. WHITTIER, 80 Cal. 574, 13 Am. St. Rep. 175, 
 
 22 Pac. 266. 
 Proof in action for injury. 
 
 Cited in Samuels v. California Street Cable R. Co. 124 Cal. 296, 56 Pac. 1115, 
 holding evidence of uterine trouble admissible under allegations of bodily injury 
 and resultant damage; San Antonio & A. P. R. Co. v. Weigers, 22 Tex. Civ. App. 
 348, 54 S. W. 910, holding damages for permanent injuries recoverable under gen- 
 eral ad damnum clause, without being specified; Castino v. Ritzinan. 156 Cal. 
 588, 105 Pac. 739, holding in an action for personal injuries a general statement 
 of the whole amount of damages is sufficient where the damage claimed is the 
 natural and ordinary effect of the injuries; Flanagan v. Baltimore & 0. R. Co. 
 83 Iowa, 643, 50 N. W. 60, holding it unnecessary that a petition claiming 
 damages for loss of time for injuries causing permanent disability, allege the 
 character of plaintiff's occupation in order to introduce evidence showing occu- 
 pation and the extent of his earnings; Loofbourow v. Utah Light & R. Co. 33 
 Utah, 483, 94 Pac. 981, holding evidence of injured parties, vacation, earnings 
 
879 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 498 
 
 and loss was admissible under allegations as to the nature of his injuries, and 
 the results thereof on the conducting of his business, etc.; Cunningham v. New- 
 York C. & H. R. R. Co. 49 Fed. 439, holding in an action for damages for 
 personal injuries the opinions of medical experts as to the probable future 
 effects of the injuries are receivable. 
 Presumption as to negligence. 
 
 Cited in Bush v. Barnett, 96 Cal. 204, 31 Pac. 2, holding injury to passenger 
 presumed to be due to negligence of carrier; Bosqui v. Sutro R. Co. 131 Cal. 399, 
 63 Pac. 682, holding accident without fault of passenger prima facie proof of neg- 
 ligence on part of street railway; McCurrie v. Southern P. Co. 122 Cal. 562, 55 
 Pac. 324, holding carrier presumed to be negligent when injury shown to be 
 caused by instrumentalities in its business; Ellis v. Waldron, 19 R. I. 371, 33 Atl. 
 869, holding fall of elevator raised presumption of negligence; Winheim v. Field, 
 107 111. App. 149, holding that breaking of machinery causing elevator to fall 
 raises presumption of negligence; Fox v. Philadelphia, 208 Pa. 135, 65 L. R. A. 
 218, 57 Atl. 356, holding that crushing of one by elevator through no negligence 
 of his raises presumption of negligence; Montgomery & E. it. Co. v. Mallette, 92 
 Ala. 215, 9 So. 363, holding carrier prima facie liable for injury to passenger by 
 derailment of car; Renfro v. Fresno City R. Co. 2 Cal. App. 323, 84 Pac. 357, 
 holding the fact that a passenger standing with a foot on the step of the car 
 waiting to alight was thrown violently to the ground is sufficient prima facie 
 to charge the company with negligence; Budd v. United Carriage Co. 25 Or. 
 323, 27 L.R.A. 283, 35 Pac. 660, holding evidence that driver lost control of 
 stage coach and that horses ran away created a presumption that carrier was 
 negligent in providing safe horses and a competent driver; Laforrest v. O'Dris- 
 coll, 26 R. I. 552, 59 Atl. 923, on the mere happening of an accident as prima 
 facie evidence of negligence; Southern P. Co. T. Cavin, 75 C. C. A. 350, 144 
 Fed. 351, on the burden being on carrier to show that an injury to passenger 
 was not due to its negligence. 
 
 Cited in notes (13 L.R.A. (N.S.) 619) on presumption of negligence from 
 injury to passenger; (16 L.R.A. (N.S.) 931) on res ipsa loquitur as between 
 storekeeper and customer; (113 Am. St. Rep. 1030) on presumption of negli- 
 gence from happening of accident causing personal injuries. 
 Running: of elevator. 
 
 Cited in Kentucky Hotel Co. v. Camp, 97 Ky. 431, 30 S. W. 1010; Southern 
 Bldg. & L. Asso. v. Lawson, 97 Tenn. 371, 56 Am. St. Rep. 804, 37 S. W. 86; 
 Springer v. Ford, 189 111. 434, 52 L. R. A. 931, 82 Am. St. Rep. 464, 59 N. E. 
 953 ; Riland v. Hirshler, 7 Pa. Super. Ct. 386 ; Marker v. Mitchell, 54 Fed. 638, 
 holding passenger elevator must be run with same degree of care required of 
 carrier: McGrell v. Buffalo Office Bldg. Co. 90 Hun, 34, 35 N. Y. Supp. 599, hold- 
 ing owner of passenger elevator liable for death of child caused by running of 
 elevator; Griffen v. Manice, 166 N. Y. 197, 52 L. R, A. 926, 82 Am. St. Rep. 630. 
 59 N. E. 925, Reversing 47 App. Div. 75, 62 N. Y. Supp. 364, holding owner of 
 passenger elevator not liable for death caused by fall of balancing weight; Gibson 
 v. International Trust Co. 177 Mass. 103, 52 L. R. A. 929, 58 N. E. 278, holding 
 evidence did not disclose negligence in running elevator; Womble v. Merchants 
 Grocery Co. 135 N. C. 485, 47 S. E. 493, holding question whether elevator was 
 properly constructed, for jury; Klebe v. Parker Distilling Co. 207 Mo. 491, 13 
 L.R.A. (N.S.) 144, 305 S. W. 1057, holding an employer not liable for an injury 
 to a servant by the fall of a freight elevator where it was shown it was properly 
 inspected and no negligence existed on the part of the master it being under 
 the charge of plaintiff and other employees; Kappes v. Brown Shoe Co. 116 
 Mo. App. 167. 90 S. W. 1158, holding an employer maintaining a freight elevator 
 
5 L.R.A. 498] L. R. A. CASES AS AUTHORITIES. 880 
 
 is not required to provide the elevator with safety devices necessary in the 
 construction of a passenger elevator; Cooper v. Century Realty Co. 224 Mo. 
 723, 123 S. W. 848, holding the owners of an office building operating passenger 
 elevators were common carriers of passengers; Fox v. Philadelphia, 208 Pa. 135 r 
 Go L.R.A. 218, 57 Atl. 356, holding a city was liable where plaintiff attending 
 court in the city hall was injured by the negligence of the operator of an 
 elevator; Mitchell v. Marker, 25 L.R.A. 30, 10 C. C. A. 306, 22 U. S. App. 
 
 325, 62 Fed. 143, Affirming 54 Fed. 638, holding a carrier by elevator was 
 required to exercise the highest degree of care for the safety of passengers; 
 Ohio Valley T. Co. v. Wernkc, 42 Ind. App. 334, 84 N. E. 999, holding an 
 instruction that owner of a building, in action for damages caused by a pas- 
 senger elevator therein was liable as a common carrier of passengers for hire 
 was correct; Belvedere Bldg. Co. v. Bryan, 103 Md. 535, 64 Atl. 44; Burgess 
 v. Stowe, 134 Mich. 210, 96 N. W. 29; Edwards v. Burke, 36 Wash. 112, 78 
 Pac. 610; Shellaberger v. Fisher, 5 L.R.A.(N.S.) 257, 75 C. C. A. 9, 143 Fed 
 940; Sweeden v. Atkinson Improv. Co. 93 Ark. 402, 27 L.R.A. (N.S.) 126, 125 
 S. W. 439, on the owner of an elevator as owing to passengers the highest 
 degree of skill and care; Orcutt v. Century Bldg. Co. 201 Mo. 437, 8 L.R.A. 
 (N.S.) 932, 99 S. W. 1062, on the relation of passenger and carrier as existing 
 in the operation of passenger elevators. 
 
 Cited in notes (25 L.RA. 33; 2 L.R.A.(N.S.) 745, 748, 749, 751) on liability 
 for injuries to elevator passengers; (56 Am. St. Rep. 806, 807, 808) on lia- 
 bility of owners of elevators used for passengers or employees. 
 
 Distinguished in State, use of Arnold, v. Green, 95 Md. 229, 52 Atl. 673, holding 
 owner of passenger and freight elevator in warehouse not liable for injury not 
 shown to be caused by defective machinery or running of elevator; Watts v. 
 Murphy, 9 Cal. App. 568, 99 Pac. 1104, holding in an action for the death of 
 an employee an instruction that the defendants in the maintenance of an elevator 
 must use the utmost care and diligence in providing safe machinery, etc., was 
 erroneous. 
 
 Disapproved in Edwards v. Manufacturers' Bldg. Co. 27 R. I. 249, 2 L.R.A. 
 (N.S.) 746, 114 Am. St. Rep. 37, 61 Atl. 646, 8 A. & E. Ann. Gas. 974, holding 
 a landlord who maintains an elevator in his private building for the use of 
 tenants is not a common carrier and is bound to the exercise of only rea- 
 sonable care. 
 Damage recoverable under pleading. 
 
 Cited in Clare v. Sacramento Electric Power & Light Co. 122 Cal. 506, 55 Pac. 
 
 326, holding $2,000 damages not excessive for loss of eye, hearing of ear, and se- 
 vere shock to nervous system; Terrace Water Co. v. San Antonio Light & P. 
 Co. 1 Cal. App. 513, 82 Pac. 562, holding in action for breach of contract for 
 the sale of electric power, the plaintiff was entitled under the ad damiium 
 clause of the complaint to recover the difference between the contract price and 
 what it would cost to purchase the power from another. 
 
 Distinguished in Lombard! v. California Street R. Co. 124 Cal. 320, 57 Pac. 66, 
 holding evidence of net profits from business not admissible when value of time 
 has been alleged as basis of loss. 
 Duty of railroad to passengers. 
 
 Cited in Siemsen v. Oakland, S. L. & H. Electric R. Co. 134 Cal. 499, 66 Pac. 
 (572, holding railway liable for injury due to latent defects in manufacture of car; 
 Mitchell v. Southern P. R. Co. 87 Cal. 72, 11 L. R. A. 133, 25 Pac. 245, holding 
 railroad bound to prove admitted injury by derailment of car not due to want of 
 care; Southern R. Co. v. Burgess, 143 Ala. 370, 42 So. 35, holding an instruc- 
 
881 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 508 
 
 tion that a carrier owes to the passengers the highest degree of diligence 
 known to "very" diligent persons engaged in like business, is not objectionable 
 as requiring an exercise of extraordinary care; Valente v. Sierra R. Co. 151 
 Cal. 543, 91 Pac. 481, holding an instruction in action for death of a passenger 
 that railroad companies engaged in transporting passengers for hire are bound 
 to use the best precautions in practical use was objectionable as being too 
 broad; O'Callaghan v. Dellwood Park Co. 242 111. 343, 26 L.R.A. (N.S.) 1056, 
 134 Am. St. Rep. 331, 89 N. E. 1005, 17 A. & E. Ann. Cas. 407, holding the 
 operator of a scenic railway was bound to the exercise of the highest degree 
 of care for the safety of its patrons; Morgan v. Chesapeake & 0. R. Co. 127 
 Ky. 439, 15 L.R.A.(N.S.) 794, 105 S. W. 960, 16 A. & E. Ann. Cas. 608, holding 
 a carrier was liable where a passenger was injured by the breaking of a de- 
 fective axle on a foreign car being transported as a part of the train, where 
 such defect capable of discovery; Kline v. Santa Barbara Consol. R. Co. 150 
 Cal. 746, 90 Pac. 125, on the duty required of carrier in the carriage of pas- 
 senger; Dinnigan v. Peterson, 3 Cal. App. 767, 87 Pac. 218, on carrier a 
 owing the utmost care to a passenger. 
 
 Cited in footnote to Proud v. Philadelphia & R. R. Co. 50 L. R. A. 468, which 
 denies liability for injury by slipping on filth on car step in nighttime within 
 half hour after car inspected. 
 
 Cited in notes (31 L. R. A. 314) on duty of railroad carrier in respect to fur- 
 nishing proper cars for passengers; (7 L. R. A. 688) on obligations and liabilities 
 of carriers of passengers; (77 Am. St. Rep. 29; 5 Eng. Rul. Cas. 402) on 
 extent of duty to secure safety of passengers. 
 Contributory negligence of passenger. 
 
 Cited in Nagle v. California S. R. Co. 88 Cal. 91, 25 Pac. 1106, holding passenger 
 should look before he leaps from train stopped outside of station. 
 Duty owed l>y master to servant. 
 
 Cited in Sappenfield v. Main Street & Agri. Park R. Co. 91 Cal. 55, 27 Pac. 
 590, disapproving an instruction to the effect that it \vas the duty of the 
 master to furnish such appliances "as combine the greatest safety with the 
 practical use. 
 
 5 L. R. A. 508, FOREPAUGH v. DELAWARE, L. & W. R. CO. 128 Pa. '217, 15 
 Am. St. Rep. 672, 18 Atl. 503. 
 
 Conflict of laws. 
 
 Cited in McDermott v. Prudential Ins. Co. 7 Kulp, 249, holding wagering life 
 insurance policy, valid where made and payable, not enforceable here; City Bank 
 v. Easton Boot & Shoe Co. 6 Northampton Co. Rep. 28. holding action for wrong- 
 ful sale of property delivered to carrier in New York for this state determined by 
 laws of former; Cooke v. Addicks, 6 Pa. Super. Ct. 118, sustaining right to show 
 nature of indorsement on note executed elsewhere and enforced here; Healy v. 
 Eastern Bldg. & L. Asso. 17 Pa. Super. Ct. 394, construing as New York contract, 
 one made and to be performed there; Alexander v. Barker, 64 Kan. 401, 67 Pac. 
 829, denj - ing enforcement of contract of agency as to lands in another state where 
 contract invalid; Southern Exp. Co. v. Owens, 146 Ala. 418, 8 L.R.A. (N.S.) 
 372, 119 Am. St. Rep. 41, 41 So. 752, 9 A. & E. Ann. Cas. 1143, holding the 
 doctrine that a contract is governed by the law of the place can only be iiu 
 volved by so pleading and making proof of the law of such foreign jurisdiction; 
 Missouri, K. & T. R. Co. v. Hutchings, 78 Kan. 768, 99 Pac. 230, on the con- 
 chisiveness of the decisions of the courts of foreign states: Sutterly v. Fleshman, 
 41 Pa. Super. Ct. 134, to the point that rights under foreign statute, not con- 
 L.R.A. Au. Vol. I. 56. 
 
5 L.R.A. 508] L. R. A. CASES AS AUTHORITIES. 882 
 
 trary to policy of this state will be enforced by remedies according to procedure 
 of this state; Com. v. Tarraborrelli, 19 Pa. Dist. R. 236, to the point that state 
 courts are only tribunals to pass upon difference between common law of England 
 and that of this state. 
 
 Cited in footnote to Byrne v. Kansas City, Ft. S. & M. R. Co. 24 L. R. A. 693, 
 which requires Federal courts to follow construction by state courts of state stat- 
 ute as to effect of contributory negligence. 
 
 Cited in notes (67 L.R.A. 39) on how case determined when proper foreign 
 law not proved; (6 L.R.A. (N.S.) 214) on conflicting interpretations of common- 
 law rules in different jurisdictions; (40 L.R.A. (X.S.) 384) on questions of state 
 law as to which state court decisions must be followed in actions originating in, 
 or removed to, Federal courts. 
 As to contracts limiting- liability. 
 
 Cited in Fairchild v. Philadelphia, W. & B. R. Co. 148 Pa. 531, 24 Atl. 79, 
 holding contract for carriage of property to be interpreted according to law of 
 place where made; Fonseca v. Cunard S. S. Co. 153 Mass. 557, 12 L. R. A. 342, 25 
 Am. St. Rep. 660, 27 N. E. 665, holding contract limiting liability, valid in Eng- 
 land where .made, enforceable in Massachusetts; Frank v. Adams Exp. Co. 17 
 Pa. Dist. R. 469, 38 Pittsb. L. J. N. S. 335; Stewart v. Baltimore & 0. R. Co, 
 37 Pa. Super. Ct. 279, holding courts would enforce a stipulation of a contract 
 limiting carrier's liability for negligence although contrary to laws of the state, 
 the injury occurring in state where such a contract is valid; Geyer v. United 
 Spates Exp. Co. 27 Montg. Co. L. Rep. 36, holding that contract for carriage 
 of property is to be construed in accordance with the law of place where con- 
 tract is made. 
 
 Cited in footnote to Tecumseh Mills v. Louisville & N. R. Co. 49 L. R. A. 557, 
 which holds prohibition against carriers limiting liability inapplicable to contract 
 by domestic corporation in other state for transportation entirely outside of state. 
 
 Cited in note ( 63 L. R. A. 524 ) on conflict of laws as to carriers' contracts. 
 
 Distinguished in Hughes v. Pennsylvania R. Co. 202 Pa. 227, 63 L. R. A. 517, 
 97 Am. St. Rep. 713, 51 Atl. 990, holding contract limiting liability, made in an- 
 other state, void if injury occurs in Pennsylvania. 
 
 Disapproved in The Glenmavis, 69 Fed. 478, holding contract limiting liability, 
 valid in Germany where made, not enforceable in United States courts; Shaw v. 
 Postal Teleg. & Cable Co. 79 Miss. 692, 56 L. R. A. 492, 89 Am. St. Rep. 666, 31 
 So. 222 (dissenting opinion), majority holding that construction in state where 
 passed, of statute as authorizing contract limiting liability for mistake in trans- 
 mitting telegrams, will be followed elsewhere. 
 As to other contracts. 
 
 Cited in Baxter Nat. Bank v. Talbot, 154 Mass. 216, 13 L. R, A. 55, 28 N. E. 
 163, holding lex looi of contract governs indorsement of promissory note; F. B. 
 Hauck Clothing Co. v. Sharpe, 83 Mo. App. 391, holding law of place of per- 
 formance does not govern married woman's capacity to contract; John A. Tolman 
 Co. v. Reed, 115 Mich. 74, 72 N. W. 1104, holding guaranty dated in Illinois, 
 signed in Michigan, and mailed to guarantee in Illinois, Illinois contract; Parker 
 v. Moore, 53 C. C. A. 372, 115 Fed. 802, holding contract valid in state where made 
 not enforceable in another state if contrary to its morals, public policy, or 
 statutes. 
 
 Cited in notes (46 Am. St. Rep. 448, 454) on asserting against married 
 woman a liability valid in state where created but not in foreign; (55 Am. 
 St. Rep. 54) on place of contract; (55 Am. St. Rep. 775, 777) on enforcement 
 of contract outside of jurisdiction where made; (5 Eng. Rul. Caa. 889) on 
 
883 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 515 
 
 presumption that parties to contract intended to adopt law of place where 
 
 contract was made. 
 
 Contracts limiting- liability. 
 
 Cited in Pittsburgh, C. C. & St. L. R. Co. v. Mahoney, 148 Ind. 200, 40 L. R. A. 
 104, 62 Am. St. Rep. 503, 46 N. E. 917, holding common carriers may contract 
 as private carriers for exemption from liability; Richmond v. Southern P. Co. 41 
 Or. 57, 57 L. R. A. 618, 93 Am. St. Rep. 694, 67 Pac. 947, holding limited liabil- 
 ity agreement with person riding on freight train ticket not enforceable where 
 such trains carry passengers generally; Sager v. Northern P. R. Co. 166 Fed. 
 528; Clough v. Grand Trunk Western R. Co. 11 L.R.A.(N.S.) 448, 85 C. C. A. 
 1, 155 Fed. 83, holding a railroad company might enter into a contract ex- 
 empting absolutely from liability for injuries resulting from the moving of a 
 circus train owned by the owners of the circus. 
 
 Cited in notes (30 L.R.A. 161) on railroad companies as private carriers in 
 drawing special trains or special cars; (88 Am. St. Rep. 89, 126, 127, 128) 
 on limitation of carrier's liability in bills of lading; (230 Am. St. Rep. 35) 
 on liability of railroad hauling circus train under special contract; (130 Am. 
 St. Rep. 48) on whether injured employee of car owner is bound by contract 
 between car owner and railroad. 
 Common law. 
 
 Cited in note (22 L. R. A. 506) on adoption of common law in United States. 
 
 5 L. R. A. 515, WESTERN U. TELEG. CO. v. STEVENSON, 128 Pa. 442, 15 Am. 
 
 St. Rep. 687, 18 Atl. 441. 
 Taking- messages not -written on company's blanks. 
 
 Cited in note (56 L. R. A. 747) on contracts for telegrams not written on 
 company's blanks. 
 Liability for negligence as to telegrams. 
 
 Cited in footnote to Western U. Teleg. Co. v. Short, 9 L. R. A. 744, which 
 holds company prima facie liable for failure to deliver telegram. 
 Measure of damages. 
 
 Cited in Bowie v. Western U. Teleg. Co. 78 S. C. 429, 59 S. E. 65, holding a 
 mill company's quotation for flour delivered at a place miglit be taken as the 
 true market value in computing damages for a mistake in sending a telegram 
 quoting prices where correctness of such quotation is not*in question. 
 
 Cited in note (38 L. ed. U. S. 884) on damages for error in telegraph message, 
 or failure to deliver. 
 Contracts limiting liability. 
 
 Cited in Willock v. Pennsylvania R. Co. 166 Pa. 189, 35 W. N. C. 547, 27 L. R. 
 A. 229, 45 Am. St. Rep. 674, 30 Atl. 948, holding common carrier cannot stipu- 
 late for release from consequences of negligence or fraud; Primrose v. Western 
 U. Teleg. Co. 154 U. S. 20, 38 L. ed. 891, 14 Sup. Ct. Rep. 1098, holding stipulation 
 limiting liability unless message is repeated at sender's expense valid. 
 
 Cited in footnotes to Birkett v. Western U. Teleg. Co. 33 L. R. A. 404, which 
 liolds valid, condition against liability beyond amount paid for sending unre- 
 peated message; Coit v. Western U. Teleg. Co. 53 L. R. A. 678, which holds 
 transmission of telegram while wires working badly not gross negligence if wires 
 working well when actually sent. 
 
 Cited in notes (13 L.R.A. 510) on effect of stipulations in contract to transmit 
 telegram; (11 L.R.A. (N.S.) 562) on validity of limitation of liability for 
 unrepeated telegrams. 
 
 Disapproved in effect in Reed v. \Vestern U. Teleg. Co. 135 Mo. 668, 34 L. R. A. 
 
5 L.R.A. 515] L. R. A. CASES AS AUTHORITIES. 88* 
 
 495, 58 Am. St. Rep. 609, 37 S. W. 904, holding telegraph company cannot 
 exempt itself by contract from liability for negligence. 
 Primary and secondary evidence. 
 
 Cited in Williamsport v. Citizens' Water & Gas Co. 232 Pa. 249, 81 Atl. 316, 
 holding that in order to exclude evidence under best evidence rule, it must 
 appear that evidence not produced is of higher grade; American Mfg. Co. use 
 of Doniphan v. S. Morgan Smith Co. 33 Pa. Super. Ct. 473, distinguishing 
 between primary and secondary evidence; Dotterer v. State, 172 Ind. 367, 30 
 L.R.A.(N.S.) 854, 88 N. E. 689, holding the fact that a witness has been con- 
 victed of a crime may be shown by his parol testimony on cross-examination. 
 
 Cited in note (11 Eng. Rul. Cas. 506) on kinds of secondary evidence in 
 respect to lost instrument. 
 
 5 L. R. A. 517, REID v. SMOULTER, 128 Pa. 324, 18 Atl. 445. 
 Abolition of established office. 
 
 Cited in Com. ex rel. Atty. Gen. v. Samuels, 163 Pa. 286, 34 W. N. C. 430, 29 
 Atl. 909, holding act transferring duties and powers of county auditor to county 
 comptroller void as impliedly abolishing former office; People ex rel. Burby v. 
 Howland, 155 N". Y. 279, 41 L. R. A. 841, 49 N. E. 775, Affirming 17 App. Div. 172, 
 45 N. Y. Supp. 347, holding act taking away exercise of criminal jurisdiction by 
 justices of peace, and denying them compensation for such business, void; Mas- 
 senburg v. Bibb County, 96 Ga. 617, 23 S. E. 998, holding abolition of office of 
 county treasurer by statute void where office recognized by Constitution; Morris 
 v. Glover, 121 Ga. 755, 49 S. E. 786, holding a local act providing for the con- 
 solidation of the office of county treasurer with that of county clerk and vesting 
 the county clerk with the duties of the treasurer was unconstitutional as being 
 the abolishment by indirection of an office which the legislative body under the 
 Constitution did not have power to abolish; State ex rel. Thurmond v. Shreve- 
 port, 124 La. 187, 134 Am. St. Rep. 496, 50 So. 3, holding court may interfere 
 on mandamus where a city council having no authority to abolish the office of 
 auditor attempts to accomplish such result by reducing the salary so low that 
 no competent person can accept it; State ex rel. Tolerton v. Gordon, 236 Mo. 
 166, 139 S. W. 403, to the point that repeal of statute providing for salary of 
 officer is equivalent to removal of officer from office; Re County Auditor, 26 
 Lane. L. Rev. 118, holding that act providing for election of controller abolishes 
 office of auditor, where constitution enumerates such offices in alternative as 
 county offices. 
 
 Cited in note (135 Am. St. Rep. 259) on mandamus as remedy for illegal 
 attempt to abolish constitutionally established office. 
 
 Distinguished in Bugg v. Sebastian County, 64 Ark. 517, 43 S. W. 506, holding 
 act reducing salary of tax collector, but not to point where office could not be 
 filled satisfactorily, not unconstitutional. 
 Constitutional independence of conrts. 
 
 Cited in McCully v. State, 102 Tenn. 635, 46 L. R. A. 598, 53 S. W. 134 (dis- 
 senting opinion), majority holding abolition of circuit or chancery court by con- 
 current vote of legislature exercise of constitutional power. 
 Local or private legislation. 
 
 Cited in Lloyd v. Smith, 176 Pa. 219, 38 W. N. C. 365, 35 Atl. 199, Reversing 
 8 Kulp, 130, holding act ci'eating office of comptroller in counties having certain 
 population, constitutional; Powell v. Durclen, 61 Ark. 26, 31 S. W. 740, holding 
 abuse of discretion in fixing amounts of salaries by special law remediable in 
 court; Weston v. Herdman, 04 Neb. 28, 89 N. W. 384, holding act unnecessary 
 to appropriate salary for reporter, clerk, and librarian of court. 
 
885 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 519 
 
 Cited in footnotes to Herndon v. Imperial F. Ins. Co. 18 L. R. A. 547, which 
 denies legislative power to give right to rehearing contrary to court rule; Mil- 
 waukee County v. Isenring, 53 L. R. A. 635, which holds act regulating sheriff's 
 fees for particular county, local; Hamilton County v. Rasche Bros. 19 L. R. A. 
 584, which holds statute as to taxes, not applying to all parts of state, uncon- 
 stitutional. 
 Repeal by amendment. 
 
 Cited in Luzerne Water Co. v. Toby Creek Water Co. 148 Pa. 570, 24 Atl. 117, 
 Affirming 6 Kulp, 238, holding omission of water companies in amendment of 
 June 2, 1887, impliedly repeals exclusive privileges granted by act April 29, 1874; 
 Lehigh Valley Coal Co. v. United States Pipe Line Co. 3 Pa. Dist. R. 71, holding 
 act of June 2, 1883, as amending act 1874 as to transportation of petroleum, 
 invalid; Re Thirty-eighth W T ard Election, 35 Pa. Super. Ct. 260; Lehigh Valley 
 Coal Co. v. United States Pipe Line Co. 7 Kulp, 78; Com. ex rel. Conahay v. 
 Anderson, 11 North. Co. Rep. 387, 18 Pa. Dist. R. 599, 11 Del. Co. Rep. 56; 
 Re Martin, 209 Pa. 2<38, 58 Atl. 478, 29 Pa. Co. Ct. 292, 12 Luzerne Leg. Reg. 
 Rep. 40, on an amendment as operating as a repeal of former provisions not 
 incorporated in the amendment. 
 Power of appointment. 
 
 Distinguished in Robinson v. Lloyd, 10 Kulp, 56, holding power to appoint 
 assistant clerks of orphans' court vested in register. 
 Chnug-c of salary of subordinate officer during term. 
 
 Cited in note (37 L.R.A. (N.S.) 390) on change of salary of subordinate, .as 
 violating constitutional provision against changing public officer's salary during 
 term. 
 
 5 L. R. A. 519, MANDEL v. McCLAVE, 46 Ohio St. 407, 15 Am. St. Rep. 627, 
 22 N. E. 290. 
 
 Followed without discussion in Finley v. Bank, 52 Ohio St. 624, 44 N. E. 
 1135. 
 Inchoate dower right. 
 
 Cited in Crosby v. Farmers' Bank, 107 Mo. 444, 17 S. W. 1004, holding in- 
 choate right of dower to be such interest as equity will protect from fraudulent 
 sale; Green v. Estabrook, 168 Ind. 127, 120 Am. St. Rep. 349, 79 N. E. 373, 
 on wife's inchoate right of dower how barred; Fletcher v. Huntington, 8 Ohio 
 N. P. 335, 11 Ohio S. & C. P. Dec. 341, holding that unassigned right of dower 
 is an interest in real estate; Weyer v. Sager, 21 Ohio C. C. 714, 12 Ohio C. D. 
 193, holding that unassigned dower right may be aliened to a stranger; Winkler 
 v. State, 20 Ohio C. C. 361, 11 Ohio C. D. 124, on value of contingent dower 
 right. 
 
 Cited in notes (13 L. R. A. 442) on bar of inchoate right of dower; (18 L. 
 R. A. 77) on power of husband or his creditors to defeat wife's right to dower; 
 (39 Am. St. Rep. 35) on assignment of dower; (18 L.R.A. 77) on power of 
 husband, or his creditors, to defeat wife's right of dower. 
 
 Distinguished in Haggerty v. Wagner, 148 Ind. 649, 39 L. R. A. 392, 48 N. E. 
 366, holding dower extinguished by partition sale in action in which wife not 
 made party. 
 Encumbered property. 
 
 Cited in Sprague v. Law, 17 Ohio C. C. 737, holding wife dowable as against 
 judgment creditor in entire proceeds of property sold under foreclosure of mort- 
 gage executed by husband before marriage; Society for Savings v. Drake, 10 
 Ohio C. C. 60, holding wife joining in mortgage dowable in entire proceeds of 
 
5 L.R.A. 519] L. R. A. CASES AS AUTHORITIES. 886 
 
 sale on foreclosure for more than mortgage debt; Smith v. Rothschild, 4 Ohio 
 C. C. 551, holding wife consenting to partition sale, free of dower, by trustee 
 for husband's creditors, entitled to compensation for dower right; Joyce v. 
 Dauntz, 55 Ohio St. 552, 45 N. E. 900, holding purchaser of mortgaged premises 
 for full value, entitled to be subrogated to rights of first mortgagee to extent 
 that purchase was applied on his mortgage as against subsequent incumbran- 
 cers; Hewitt v. Cox, 55 Ark. 231, 15 S. W. 1026, holding widow cannot compel 
 administrator to apply personalty to debt secured by mortgage in which she 
 joined, as her dower right covers only equity of redemption ; Jewett v. Feld- 
 heiser, 68 Ohio St. 534, 67 N. E. 1072, holding purchase under judgment does 
 not affect wife's interest; Sprague v. Law, 7 Ohio N. P. 555. 5 Ohio S. & C. 
 P. Dec. 559; Moerlein Brewing Co. v. Westmeier, 4 Ohio C. C. 300, 2 Ohio C. D. 
 558, holding that wife's dower should be computed upon total proceeds of sale 
 of encumbered property and paid out of surplus; Fleming v. Jordan, 28 Ohio. 
 L. J. 333, 11 Ohio Dec. Reprint, 689, holding that dower should be computed 
 in total proceeds of sale of encumbered property including proceeds of insurance 
 policy thereon where part of property was destroyed; Kilgore v. Miller, 19 Ohio 
 C. C. 96, 10 Ohio C. D. 466, holding that where mortgage on several tracts 
 including homestead is released as to the latter, a judgment creditor cannot 
 have the mortgage enforced so as to reach such homestead. 
 
 Cited in footnotes to Kursheedt v. Union Dime Sav. Inst. 7 L. R. A. 229, 
 which holds inchoate right of dower not cut off by judgment in foreclosure suit 
 in which mortgagor's wife not served; Holden v. Dunn, 19 L. R. A. 481, which 
 holds widow entitled to dower in excess paid at foreclosure sale after husband's 
 death. 
 
 Distinguished in Re Hays, 104 C. C. A. 656, 181 Fed. 677; Nichols v. French, 
 83 Ohio St. 167, 93 N. E. 897, holding that dower should be computed only ih 
 surplus in case of sale of property for purchase money mortgage executed by 
 husband before marriage; Re Lingafelter, 32 L.R.A.(N.S.) 103, 104 C. C. A. 38, 
 181 Fed. 29, holding that where mortgage in which wife has joined is set aside 
 as void, her dower right is restored. 
 
 Disapproved in Hoy v. Varner, 100 Va. 607, 42 S. E. 690, holding wife sign 
 ing deed of trust only entitled to dower in surplus. 
 
 5 L. R. A. 523, BARTLETT v. PATTON, 33 W. Va. 71, 10 S. E. 21. 
 Construction of will. 
 
 Cited in Hawes v. Kepley, 28 Ind. App. 311, 62 N. E. 720, holding additional 
 gift to son not implied from expression in will "tried to make equitable distribu- 
 tion" of property, where devise to him is smaller than to other children; Carney 
 v. Kain, 40 W. Va. 820, 23 S. E. 650, holding devise to the living heirs in event 
 of unborn donees not coming into existence implied where will throughout ex- 
 cludes heirs in favor of issue in existence at death of survivor of testator's 
 children; Martin v. Martin, 52 W. Va. 395, 44 S. E. 198, holding devise to one 
 and his children does not entitle latter to maintain partition against former: 
 Coberly v. Earle, 60 W. Va. 302, 54 S. E. 336, on the presumption against 
 testator having intended any bequest or devise not set forth in the will. 
 
 Cited in notes (7 L. R. A. 420) on bequests giving life estates only; (8 L. R. 
 A. 741) on construction of will; (16 L.R.A.(N.S.) 484) on effect of bequest 
 for life of chattels consumable in use; (21 Am. St. Rep. 747; 14 Eug. Rul. 
 Cas. 655) on construction of wills. 
 Title by Implication. 
 
 Cited in Griffin v. Fairmont Coal Co. 59 W. Va. 58], 2 L.R.A.(N.S-) 1162. 
 53 S. E. 24 (dissenting opinion), on a deed as passing title by implication. 
 
 Cited in note (15 L.R.A. (N.S.) 74) on devise or bequest by implication. 
 
887 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 531 
 
 Interest of Hfe tenant In personal estate. 
 
 Cited in McDonald v. Jarvis, 64 W. Va. 66, 131 Am. St. Rep. 889, 80 S. E. 
 990, on the rights of life tenant as affecting personal estate; Roush v. Hyre, 
 62 W. Va. 128, 57 S. E. 368, holding the personal representative of a deceased 
 life tenant was chargeable with all the principal sum received from the sale 
 of personal estate by the life tenant with interest from death of life tenant; 
 Behrens v. Baumann, 66 W. Va. 59, 27 L.R.A. (N.S.) 1094, 66 S. E. 5, holding 
 that life tenant is not bound to account for such things as are consumable in 
 use thereof. 
 Admlssiblllty of declarations against Interest. 
 
 Cited in Smith v. Moore, 142 N. C. 289, 7 L.R.A.(N.S.) 690, 55 S. E. 275, 
 holding the declarations of a grantor since deceased, not in privity with either 
 party to the suit as to the reason for her making a deed of land were admis- 
 sible as against interest; Peters v. Nolan Coal Co. 61 W. Va. 397, 9 L.R.A. (N.S.) 
 992, 56 S. E. 735, holding a deed containing admissions of a nature against 
 interest of parties is admissible in evidence by a stranger. 
 
 Cited in notes (94 Am. St. Rep. 675) on admissibility against third persons 
 of declarations of deceased person; (2 Brit. Rul. Cas. 670) on admissibility as 
 between third parties of book entries against interest by deceased persons. 
 Impeachment of verdict, by jurors. 
 
 Cited in State v. Cobbs, 40 W. Va. 724, 22 S. E. 310, holding verdict of mur- 
 der in first degree, punishable by death, cannot be impeached by affidavit of 
 jurors that they were ignorant tha choice of punishment rested with them, 
 and referring with approval to annotation in 5 L. R. A. 523; Re Merriam, 108 
 Mich. 463, 66 N. W. 372, holding affidavit of jurors as to misconduct and preju- 
 dice of other members of panel not admissible to impeach verdict; Pickens v. 
 Coal River Boom & Timber Co. 58 W. Va. 20, 50 S. E. 872, 6 A. & E. Ann. 
 Cas. 285, holding affidavits of jurors are not admissible to prove that the plain- 
 tiff in an action treated them to liquor during the trial on a motion to set 
 aside a verdict; State v. Harris, 69 W. Va. 248, L.R.A. (N.S.) , 71 S. E. 
 609, to the point that evidence of jurors will not be received to impeach their 
 verdict. 
 
 Cited in notes (9 L. R. A. 820, 821; 11 L. R. A. 706) on juror impeaching his 
 own verdict; (31 L. R. A. 489) on right of jurors to act on their own knowledge 
 of facts in, or relevant to, the issue. 
 
 5 L. R. A. 529, THOMAS v. ARMSTRONG, 86 Va. 323, 10 S. E. 6. 
 Statute of frauds. 
 
 Cited in Reed v. Gold, 102 Va. 50, 45 S. E. 868, holding an oral subscription 
 to stock is not within the provisions of the statute of frauds relating to agree- 
 ments not to be performed within year where title passes at once though payment 
 not to be completed within year. 
 
 Cited in footnote to Lewis v. Tapman, 47 L. R. A. 385, which holds contract 
 to marry "within three years" not within statute of fraiuls. 
 
 Cited in notes (7 L.R.A. 785) on contracts not to be performed within one 
 year; (15 L.R.A. (N.S.) 329) on effect of statute of frauds upon parol contracts 
 for services performable within a year, though not so intended; (138 Am. St. 
 Rep. 602) on agreements not to be performed within a year; (6 Eng. Rul. Caa. 
 305) on validity of agreement to be performed on a contingency which may take 
 place within a year. 
 
 5 L. R. A. 531. \YELLS T. COLLINS, 74 Wis. 341, 43 N. W. 160. 
 Delivery to third party. 
 
 Cited in Bickford v. Mattocks, 95 Me. 551, 50 Atl. 894,- holding no delivery of 
 
5 L.R.A. 531] L. E. A. CASES AS AUTHORITIES. 
 
 note and mortgage to donee in whose favor made out, where donor places papers 
 in hands of third party for delivery, which does not take place, and donor sub- 
 sequently accepts payment of note himself; Flaherty v. O'Connor, 24 R. I. 590, 
 54 Atl. 376, holding delivery to third person of money to pay funeral expenses 
 of a deceased daughter, and to pay the remainder to certain others, constituted 
 such party an agent of the donor ao that gift could be revoked before the 
 delivery was made to the donees. 
 Incompatible relations between principal and agent. 
 
 Cited in note (9 L. R. A. 795) on agent assuming incompatible relations. 
 
 5 L. R. A. 533, TURNER v. IRON CHIEF MIN. CO. 74 Wis. 355, 17 Am. St. 
 
 Rep. 168, 43 N. W. 149. 
 Maturity of demand note. 
 
 Cited in Peninsular Sav. Bank v. Hosie, 112 Mich. 355,- 70 N. W. 890, hold- 
 ing indorsers on time note not discharged by taking of demand note by payee at 
 maturity thereof, since no extension of time thereby obtained; House v. Peacock, 
 84 Conn. 55, 78 Atl. 723, holding that note payable "on demand after date" 
 is so payable although made to bear interest from date; Barry v. Minahan, 127 
 Wis. 573, 107 N. W. 488, holding cause of action upon a demand note accrues 
 at the time of the loan. 
 Demand of payment and notice of nonpayment. 
 
 Cited in Harrisburg Nat. Bank v. Moffit, 3 Dauphin Co. Rep. 75, 24 Pa. Co. 
 Ct. 118, and Home Sav. Bank v. Hosie, 119 Mich. 130, 77 N. W. 625, holding 
 indorsers discharged where demand not made for two and a half years after in- 
 dorsement; Leonard v. Olson, 99 Iowa, 171, 35 L. R. A. 384, footnote, p. 381, 61 
 Am. St. Rep. 230, 68 N. W. 677, holding indorser discharged by delay of ten years 
 in making demand, where no notice of inability served; Oley v. Miller, 74 Conn. 
 -311, 50 Atl. 744, holding question of what is reasonable time for presentment and 
 demand, for jury. 
 
 Cited in footnotes to Oakley v. Carr, 60 L. R. A. 431, which holds notice of 
 dishonor sufficient if sent to last indorser, who is agent for collection only, by 
 first mail of day following dishonor; Williams v. Parks, 56 L. R. A. 759, which 
 sustains notary's liability on bond, for neglecting to give notice of dishonor; 
 Greeley v. Whitehead, 28 L. R. A. 286, which holds failure to properly present 
 note for payment waived by paying interest after maturity. 
 
 Cited in note (12 L. R. A. 727) on presentment and demand for payment. 
 
 5 L. R. A. 536, COM. v. KING, 150 Mass. 221, 22 N. E. 905. 
 State jurisdiction over navigable waters. 
 
 Cited in Manchester v. Massachusetts, 139 U. S. 264, 35 L. ed. 166, 11 Sup. 
 t. Rep. 559, Affirming 152 Mass. 248, 9 L. R. A. 243, 23 Am. St. Rep. 820, 25 
 N. E. 113, holding statute regulating menhaden fisheries in Buzzard's bay con- 
 stitutional in absence of Federal statute in regard thereto; Hutton v. Webb, 124 
 N. C. 754, 59 L. R. A. 40, 33 S. E. 169 (dissenting opinion), as to streams not 
 technically navigable being exclusively within state jurisdiction. 
 Judicial notice. 
 
 Cited in footnote to Richardson v. Buhl, 6 L. R. A. 458, which holds that na- 
 ture of illegal contracts will be judicially noticed by courts sna sponte. 
 
 Cited in note (82 Am. St. Rep. 44G) on judicial notice of localities and 
 ^boundaries. 
 
889 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 540 
 
 5 L. R. A. 538, JONES v. ATCHISON, T. & S. F. R. CO. 150 Mass. 304, 23 N. E. 
 
 43. 
 Execution of trust by executor. 
 
 Cited in Haskell v. Hill, 169 Mass. 129, 47 N. E. 586, holding duty to carry 
 out trusts created by will devolves on executor in absence of appointment of 
 trustee by probate court; Robinson v. Robinson, 105 Me. 71, 32 L.R.A.(N.S.) 
 679, 134 Am. St. Rep. 537, 72 Atl. 883, holding that power of sale by trustee 
 will be implied when he is charged with duty which cannot be performed without 
 power of sale. 
 Cbangre of investments by executor. 
 
 Cited in Taft v. Decker, 182 Mass. 109, 65 N. E. 507, on the necessity or 
 sufficiency of probate proceedings to authorize change of investments. 
 
 5 L. R. A. 540, MAYER v. DEAN, 115 N. Y. 556, 22 N. E. 261. 
 Motion to gro to jury. 
 
 Cited in Robbins v. Springfield F. & M. Ins. Co. 79 Hun, 119, 29 N. Y. Supp. 
 513; United States v. Bishop, 60 C. C. A. 125, 125 Fed. 183; Lagerquist v. United 
 States Industrial Ins. Co. 89 Hun, 26, 35 N. Y. Supp. 38, holding, where both 
 sides request direction of verdict, facts may be determined by trial judge; Camp- 
 bell v. Prague, 6 App. Div. 561, 39 N. Y. Supp. 558, holding that by request- 
 ing a verdict defendant does not waive right of submission to jury of specific 
 questions of fact; Stanford v. McGill, 6 N. D. 572, 38 L. R, A. 773, 72 N. W. 938; 
 Palmer v. Field, 76 Hun, 232, 27 N. Y. Supp. 736; Colejnan v. Pickett, 82 Hun r 
 288, 31 N. Y. Supp. 480; Groves v. Acker, 85 Hun, 49*3, 33 N. Y. Supp. 406; 
 Second Nat. Bank v. Weston, 31 App. Div. 406, 52 N. Y. Supp. 315; Stokes v. 
 Mackay, 46 N. Y. S. R. 945, 19 N. Y. Supp. 918; Riley v. Black, 48 N. Y. S. R. 
 762, 20 N. Y. Supp. 695; Flandreau v. Elsworth, 151 N. Y. 482, 4 N. E. 853; 
 Riley v. Black, 1 Misc. 293, 20 N. Y. Supp. 695; Phenix Ins. Co. v. Kerr, 129- 
 Fed. 724, holding asking for direction of verdict, without questioning submission, 
 of specific question of fact, waives right to go to jury; Litt v. Wabash R. Co. 
 50 App. Div. 552, 64 N. Y. Supp. 108, holding that exception and statement that 
 damages was question for jury was equivalent to request that that question be 
 submitted; Bowers v. Ocean Acci. & Guarantee Corp. 110 App. Div. 697, 97 
 N. Y. Supp. 485, holding that where both parties move for a directed verdict, 
 and several issues are involved, and afterward one party asks to have the case 
 sent to the jury, it is not error to deny the motion where he fails to state 
 the questions to be submitted. 
 Inspection of groods. 
 
 Cited in Meagely v. Hoyt, 3 Silv. Ct. App. 429, 26 N. E. 719. raising, but not 
 deciding, question whether plaintiff not bound to inspect goods bought, upon 
 receipt. 
 Evidence of statements by agent. 
 
 Cited in Duffus v. Schwinger, 7 Misc. 501, 27 N. Y. Supp. 949, holding, upon 
 establishment of agency, admission of agent within scope of authority admissible 
 against principal; Pharo v. Beadleston, 42 X. Y. S. R. 112, 17 N. Y. Supp. 730, 
 holding evidence as to fraudulent representations offered not to modify, but avoid, 
 contract; Cullinan v. Fidelity & C. Co. 41 Misc. 122, 83 N. Y. Supp. 969, holding 
 that surety admitting existence of hotel at place mentioned in complaint admits 
 certificate in force there; Ettlinger v. Weil, 94 App. Div. 297, 87 N. Y. Supp. 
 1049, holding vendors bound by broker's use of fraudulent letter which former 
 sent latter; Wilson v. Pritchett, 99 Md. 593, 58 Atl. 360, holding admissible, 
 evidence of false statements of agent in selling goods. 
 
5 L.K.A. 540] L. R. A. CASES AS AUTHORITIES. 890 
 
 Distinguished in Metropolitan Aluminum Mfg. Co. v. Lau, 61 Misc. 107, 112 
 N. Y. Supp. 1059, holding where agent agreed that order was taken subject to 
 countermand but the contract stated it was not parol evidence of the agreement 
 was not admissible. 
 Powers Incidental to agency. 
 
 Cited in Moore v. King, 57 Hun, 227, 10 N. Y. Supp. 651, holding agent to sell 
 authorized to make warranty; Eppens, S. & W. Co. v. Littlejohn, 164 N. Y. 195, 
 52 L. R. A. 814, 58 N. E. 19, holding agent to sell may contract as to time of de- 
 livery of goods sold; Grillenberger v. Spencer, 7 Misc. 606, 27 N. Y. Supp. 864, 
 upholding authority of agent under power of attorney to extend time of perform- 
 ance of contract for exchange of land. 
 Rule as to liability on receiving proceeds of fraud. 
 
 Cited in Jones v. Jones, 120 N. Y. 599, 24 N. E. 1016, holding grantee of 
 premises affected by fraudulent representation of agent; Aaron v. De Castro, 36 
 N. Y. S. R. 717, 13 X. Y. Supp. 372, holding principal selling stock responsible 
 for representations of his agent; French v. Stevenson, 32 N. Y. S. R. 768, 10 N. 
 Y. Supp. 386, refusing to enforce in hands of assignee judgment principal has 
 fraudulently refused to discharge after receiving proceeds; Steinbach v. Pru- 
 dential Ins. Co. 62 App. Div. 138, 70 N. Y. Supp. 809, holding insurance company 
 retaining premiums chargeable with fraud or mistake of its agent; Oehlhof v. 
 Soloman, 73 App. Div. 333, 76 N. Y. Supp. 716, holding party sharing in proceeds 
 of fraudulent sale liable for damages; Gunther v. Ullrich, 82 Wis. 228, 33 Am. 
 St. Rep. 32, 52 N. W. 88, holding principals liable for damages through fraudu- 
 lent representations f agent. 
 
 Distinguished in Carroll v. Tucker, 2 Misc. 400, 21 N. Y. Supp. 952, holding 
 rule that a principal cannot profit by agent's fraud not applicable to delegation 
 of agency. 
 Fraud vitiating contract. 
 
 Cited in Schumaker v. Mather, 38 N. Y. S. R. 552, 14 N. Y. Supp. 411, holding 
 question as to known falsity of representations, and whether relied on and 
 actually deceiving, for jury; Griffith v. Strand, 19 Wash. 694, 54 Pac. 613, hold- 
 ing it immaterial whether fraud relates to consideration or execution of con- 
 tract. 
 Proof of fraud In action for purchase price. 
 
 Cited in Elgin Jewelry Co. v. Withaup, 118 Mo. App. 133, 94 S. W. 572, 
 holding that where rescission for fraud is set up as a defense to an action for 
 the purchase price, testimony may be received in proof of the fraud. 
 \Vurrniity on sale by sample. 
 
 Cited in notes (70 L.R.A. 660, 665) on warranty on sale of goods by sample; 
 (29 L.R.A. (N.S.) 142) as to whether sale by sample excludes implied warranty 
 other than of conformity thereto. 
 Artmissilillity of parol warranty on sale. 
 
 Cited in note (19 L.R.A. (X.S.) 1197) on right to show parol warranty in 
 connection with contract of sale of personalty. 
 
 5 L. R. A. 541, SCHLUTER v. BOWERY SAV. BANK, 117 N. Y. 125, 15 Am. St. 
 
 Rep. 494, 22 N. E. 572. 
 Banks and banking. 
 
 Cited in note (7 L. R. A. 93) on banks and banking. 
 Payment to representative. 
 
 Cited in Re Hobson, 61 Hun, 511, 1C N. Y. Supp. 371, holding administrator a 
 trustee entitled to collect trust bond and discharge securing mortgage; People 
 
891 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 541 
 
 ex rel. Lewkowitz v. Fitzgerald, 29 Abb. N. C. 473, 21 N. Y. Supp. 912, compel- 
 ling recording of satisfaction of mortgage discharged by foreign executor of 
 mortgagee; Walker v. State Trust Co. 24 Misc. 501, 53 N. Y. Supp. 849, uphold- 
 ing payment of bank to special guardian of infant as depositor; Czech v. Bean, 
 35 Misc. 734, 72 N. Y. Supp. 402, holding mortgagor would be justified in paying 
 special administrator of mortgagee; Grah'ng v. Irving Sav. Inst. 37 Misc. 23, 74 
 N. Y. Supp. 741, upholding payment of deposit in name of "D. or G." to execu- 
 trix of "D." upon presentation of book, letters, and check; Maas v. German Sav. 
 Bank, 176 N. Y. 380, 98 Am. St. Rep. 689, 68 N. E. 658, Affirming 73 App. Div. 
 527, 77 N. Y. Supp. 256, Reversing 36 Misc. 155, 72 N. Y. Supp. 1068, which Af- 
 firmed 35 Misc. 194, 71 N. Y. Supp. 483, upholding payment to foreign instead of 
 domestic administrator, no creditors being affected; McCully v. Cooper, 114 Cal. 
 261, 35 L. R. A. 494, 55 Am. St. Rep. 66, 46 Pac. 82, holding ancillary may re- 
 cover from domiciliary administrator certificate of deposit of bank in ancillary 
 administrator's state; Overby v. Gordon, 13 App. D. C. 423 (dissenting opinion), 
 majority holding record of foreign court granting administration not admissible 
 in Georgia as proof of residence; Re Williams, 130 Iowa, 562, 107 N. W. 608, 
 holding payment to a foreign administrator was valid as against the claims 
 of an ancilliary one subsequently appointed within the state; Zeigler v. Storey, 
 220 Pa. 477, 17 L.R.A.(N.S.) 878, 69 Atl. 894, holding a payment to an adminis- 
 trator appointed by a court having jurisdiction, made in good faith is a legal 
 discharge of the debtor. 
 
 Cited in notes (21 L.R.A. 153) on validity of acts done by executor or admin- 
 istrator under letters testamentary, or of administration afterwards revoked or 
 held invalid; (29 L.R.A. (N.S.) 68) on payment of deposit to credit of minor 
 to person other than guardian. 
 Trusts. 
 
 Cited in Beeman v. Beeman, 88 Hun, 15, 34 N. Y. Supp. 484, holding explicit 
 declaration of intention must be shown to establish trust; Farleigh v. Cadman. 
 159 N. Y. 172, 53 N. E. 808, holding deposit in savings bank in name of trustee 
 for another an irrevocable trust; Wadd v. Hazleton, 62 Hun, 608, 17 N. Y. Supp. 
 410, enforcing voluntary trust to deliver assignment of bond and mortgage after 
 assignor's death. 
 
 Cited in note (32 L. R. A. 375) on effect of depositing money in bank in 
 trust for third person. 
 Conflict of laws. 
 
 Cited in General Conference Asso. v. Michigan Sanitarium & Benev. Asso. 166 
 Mich. 506, 132 N. W. 94, holding that holder of notes payable to deceased person, 
 indorsed by executor, appointed at decedent's domicil may sue maker, a cor- 
 poration having principal place of business in this state. 
 
 Cited in note (57 L. R. A. 364) on conflict of laws as to matrimonial law as to 
 property. 
 
 Gifts. 
 
 Cited in Hannan v. Sheehan, 3 Misc. 269, 22 N. Y. Supp. 935, holding change 
 of depositor's account to her own and sister's names and subsequent possession of 
 bank book by latter show intent to give, and delivery. 
 Powers, duties, and liabilities of foreign or ancillary administrators. 
 
 Cited in Re Fitch, 160 N. Y. 95, 54 N. E. 701, holding foreign executor cannot 
 maintain action at law or in equity in New York. 
 
 Cited in footnotes to Hopper v. Hopper, 12 L. R. A. 237, which holds foreign 
 executor taking out ancillary letters liable to suit as domestic executor; McCully 
 v. Cooper, 35 L. R, A. 492, which sustains right of ancillary administratrix to 
 
5 L.R.A. 541] L. R. A. CASES AS AUTHORITIES. 892 
 
 recover certificate of deposit from domiciliary administratrix temporarily within 
 state where former appointed. 
 
 Cited in notes (9 L. R. A. 245) on power and authority of foreign executors 
 and administrators; (9 L.R.A. 218) on ancillary administration of estates; (45 
 Am. St. Rep. 668) on power and duty of personal representative as to property 
 outside of state. 
 Validity of appointment of administrator. 
 
 Cited in Franklin v. Franklin, 91 Tenn. 129, 18 S. W. 61, holding appointment 
 of administrator by county court valid until revoked. 
 Proof of foreign la\v*. 
 
 Cited in Wright v. Chapin, 74 Hun, 526, 26 N. Y. Supp. 825, upholding com- 
 plaint alleging right of action under Canadian laws, upon Canadian judgment; 
 Showalter v. Rickert, 64 Kan. 84, 67 Pac. 454, holding statement of substance 
 of foreign statute in pleadings sufficient; Congregational Unitarian Soc. v. Hale, 
 27 N. Y. Civ. Proc. Rep. 306, 51 N. Y. Supp. 704; Audley v. Townsend, 49 Misc. 
 25, 96 N. Y. Supp. 439, holding foreign statutes cannot be proved without 
 being pleaded; Swing v. Wanamaker, 139 App. Div. 631, 124 N. Y. Supp. 231, 
 holding that allegation that policy of foreign insurance company is void because 
 company failed to comply with certain statutes of state where issued sufficiently 
 pleads statute. 
 Subsequent disco-very of will as avoiding 1 previous administration. 
 
 Cited in Perking v. Owen, 123 Wis. 243, 101 N. W. 415, holding that where 
 there had been an administration of an estate, and later a will is discovered, 
 all acts in the due administration of the estate will be revoked, so far as incon- 
 sistent with the probating of the will; Shober v. Wheeler, 144 N. C. 408, 57 
 S. E. 152, holding that a judgment recovered against an administrator of an 
 estate, is not avoided by the subsequent discovery of a will. 
 
 Cited in notes (17 L.R.A. (N.S.) 878) on payment to administrator as dis- 
 charge of debt when will subsequently discovered and probated; (81 Am. St. 
 Rep. 556, 557) on effect of subsequent discovery of will on previous adminis- 
 tration. 
 Sufficiency of allegations of jurisdiction. 
 
 Cited in Benedict v. Clarke, 139 App. Div. 243, 123 N. Y. Supp. 964, holding 
 that allegation that foreign judgment was "duly rendered" is sufficient to show 
 jurisdiction as against general demurrer. 
 
 5 L. R. A. 544, FEENEY v. LONG ISLAND R. CO. 116 N. Y. 375, 22 N. E. 402. 
 Duty of railroad as to operation of safety gates at crossing 1 . 
 
 Cited in note (33 L.R.A. (N.S.) 989) on duty of railroads as to operation of 
 safety gates at crossings. 
 Contributory negligence. 
 
 Cited in O'Keefe v. St. Louis & S. F. R. Co. 108 Mo. App. 183, 83 S. W. 308, 
 holding that where the plaintiff was injured by the safety gates at a railroad 
 crossing, she was not guilty of contributory negligence as a matter of law whe re- 
 she looked and the gates were motionless, and no warning bell was being rung. 
 
 Cited in footnotes to Van Auken v. Chicago & W. M. R. Co. 22 L. R. A. 33, 
 which holds failure to look and listen on dark night will not prevent recovery 
 for injury by engine running backward; Betts v. Lehigh Valley R. Co. 45 L. 
 R. A. 261, which sustains right of person approaching crossing where train is 
 receiving or discharging passengers to rely on rule requiring other train to stop; 
 Woehrle v. Minnesota Transfer R. Co. 52 L. R. A. 349, which sustains traveler's 
 right to rely on watchman's absence from crossing; Western & A. R. Co. v. 
 
393 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 544 
 
 Fergusou, 54 L. R. A. 802, which holds that failure to look when within 30 feet 
 of track does not prevent recovery; Keenan v. Union Traction Co. 58 L. R. A. 
 217, which holds failure to look for train within 35 feet of track, negligence: 
 Colorado & Southern R. Co. v. Thomas, 70 L.R.A. 681, which holds failure to 
 look and listen before crossing track not excused by existence of building ad- 
 joining highway which would obstruct view of tracks and by noise created therein 
 which would prevent hearing approaching train. 
 Question for jury as to. 
 
 Cited in Redmond v. Maitland, 23 App. Div. 197, 49 N. Y. Supp. 128, holding 
 it question for jury whether plaintiff colliding with dray while driving on race 
 track was negligent; Conlan v. New York C. & H. R. R. Co. 74 Hun, 119, 26 N. 
 Y. Supp. 659, holding question of contributory negligence properly submitted to 
 jury; Krulder v. Woolvertou, 11 Misc. 538, 32 N. Y. Supp. 742, holding that 
 case can be withdrawn from jury as to contributory negligence only when no 
 other inference possible; Benedict v. Union Agri. Soc. 74 Vt. 98, 52 Atl. 110, 
 holding it for jury to decide whether cyclist in race, trying to avoid collision 
 with rider, guilty of negligence in not seeing obstruction; Getnian v. Delaware, 
 L. & W. R. Co. 162 N. Y. 26, 56 N. E. 553 (dissenting opinion), majority holding 
 charge permitting finding of freedom from contributory negligence reversible 
 error, where evidence conclusively shows such negligence. 
 
 Cited in footnote to Lorenz v. Burlington, C. R. & N. R. Co. 56 L. R. A. 753, 
 which holds negligence of one pursuing cow, in not looking and listening before 
 crossing railroad track, for jury. 
 Confidential communications to physicians. 
 
 Cited in Hennessy v. Kelley, 30 Misc. 705, 64 N. Y. Supp. 562, holding statu- 
 tory provision may be waived by offering proof of facts as to which privilege 
 existed; McGillicuddy v. Farmers' Loan & T. Co. 26 Misc. 59, 55 N. Y. Supp. 242, 
 holding licensed but unregistered attending physician cannot testify as to patient's 
 ailment; Fox v. Union Turnp. Co. 59 App. Div. 369, 69 N. Y. Supp. 551, holding 
 general statement of injuries not a waiver of statutory protection; Griffiths v. 
 Metropolitan Street R. Co. 171 N. Y. 113, 63 N. E. 808, holding burden upon 
 party seeking protection of statute to show relation of physician and patient 
 existed; Dambmann v. Metropolitan Street R. Co. 55 Misc. 66, 106 N. Y. Supp. 
 221, holding that the relationship of physician and patient being proved, it will 
 be presumed that the communications were made for purposes of treatment; Re 
 Myer, 184 N. Y. 58, 76 N. W. 920, 6 A. A E. Ann. Gas. 26, 35 N. Y. Civ. Proc. Rep. 
 329, holding that a physician was prohibited from disclosing the fact that the 
 mother and son were both afflicted with paresis, where he obtained the informa- 
 tion while attending them in a professional capacity. 
 
 Distinguished in Griffiths v. Metropolitan Street R. Co. 33 N. Y. Civ. Proc. 
 113, holding where the witness was at the place of the accident and rendered 
 first aid to the injured, and accompanied him only part way to the hospital, 
 the information he obtained was admissible. 
 Expert testimony. 
 
 Cited in Tait v. Buffalo R. Co. 55 App. Div. 513, 67 N. Y. Supp. 403, holding 
 value of expert testimony depends upon whether hypothetical questions embrace 
 all material facts. 
 Request for instrnction limiting damages. 
 
 Cited in Carter v. Xuncla. 55 App. Div. 506, 66 N. Y. Supp. 1059, holding court 
 might decline to reverse for error in charge as to damages without specific re- 
 quest to limit; Mabrey v. Cape Girardeau & I. Gravel Road Co. 92 Mo. App. 610, 
 and Seitz v. Dry Dock, E. B. & B. R. Co. 16 Daly. 268, 10 N. Y. Supp. 1, holding 
 
5 L.R.A. 544] L. R. A. CASES AS AUTHORITIES. 894 
 
 objections to right to recover more than nominal damages not available without 
 specific request to limit. 
 Damages tor personal injuries. 
 
 Cited in Wolf v. Third Ave. R. Co. 67 App. Div. 613, 74 N. Y. Supp. 336, hold- 
 ing recovery for cost of operation necessary to relieve from injury to womb 
 caused by injury, proper; Schuler v. Third Ave. R. Co. 1 Misc. 354, 48 N. Y. S. R. 
 665, 20 N. Y. Supp. 683, and Koetter v. Manhattan R. Co. 36 N. Y. S. R. 615, 
 13 N. Y. Supp. 458, holding proper, recovery for future pain and suffering rea- 
 sonably to be expected; Batten v. St. Louis Transit Co. 102 Mo. App. 294, 76 S. 
 W. 727, holding future pain an element of damage for injury due to being thrown 
 from car; Turner v. Boston & M. R. Co. 158 Mass. 267, 33 N. E. 520, holding 
 recovery for future expenses necessitated by injury proper; Xiendorff v. Man- 
 hattan R. Co. 4 App. Div. 51, 38 N. Y. Supp. 690, holding that proof of loss of 
 time entitles plaintiff to nonsinal damages; Moran v. Dover, S. & R. Street R. 
 Co. 74 N. H. 501, 19 L.R.A.(N.S.) 922, 124 Am. St. Rep. 994, 69 Atl. 884, 
 holding that the jury could allow for medical services where same was proved, 
 but without evidence of their value; Gallamore v. Olympia, 34 Wash. 386, 75 
 Pac. 978, holding that future pain and suffering could be made an element of 
 damages, where proven, though not asked for in the complaint; Webster v. 
 Seattle, R. & S. R. Co. 42 Wash. 365, 85 Pac. 2, holding that where the plaintiff 
 in an action for personal injuries, had not recovered at the time of the action, 
 the jury could allow for medical attendance in the future. 
 
 Cited in notes (8 L. R. A. 765) on damages for personal injuries and mental 
 anguish; (10 L.R.A. 794) on damages for injury to person by negligence; (19 
 L.R.A. (N.S.) 923) on allowance for physician's services in action for injuries 
 without evidence of value thereof; (20 Am. St. Rep. 114) on elements of damages 
 for personal injuries. 
 Evidence admissible under pleading:. 
 
 Cited in Duggan v. Third Ave, R. Co. 8 Misc. 90, 28 N. Y. Supp. 598, holding 
 testimony as to plaintiff's loss of power over fractured leg proper without allega- 
 tions of permanent injury. 
 
 5 L. R. A. 546, SYRACUSE WATER CO. v. SYRACUSE, 116 N. Y. 167, 22 N. E. 
 
 381. 
 Public franchises. 
 
 Cited in Hudson River Teleg. Co. v. Watervliet Turnp. & R. Co. 56 Hun, 71, 9 
 N. Y. Supp. 177, holding legislative grant to telephone company to use electricity 
 does not exclude its use by railway in absence of words of exclusion; New York 
 Mail & Newspaper Transp. Co. v. Shea, 30 App. Div. 268, 51 N. Y. Supp. 563, 
 holding bridge trustees succeeding to rights of private corporation can grant 
 privileges to tube company subject to change for public convenience; Parkhurst 
 v. Capital City R. Co. 23 Or. 475, 32 Pac. 304, holding general power to permit 
 street railway to use streets not sufficient to enable city to grant exclusive privi- 
 lege; Connecticut River Lumber Co. v. Olcott Falls Co. 65 N. H. 380, 13 L. R. A. 
 832, 21 Atl. 1090, holding grant to manufacturing company of riparian rights 
 does not include discontinuance of public way; Adler v. Metropolitan Elev. R. Co. 
 28 Abb. N. C. 200, 18 N. Y. Supp. 858, holding street not included in route desig- 
 nated by rapid transit commission to be regarded as excluded ; Palladino v. 
 Xew York, 56 Hun, 573, 10 N. Y. Supp. 66, holding compensation for filling in 
 street unprovided for by contract, though in contemplation as necessary, not 
 recoverable; Southampton v. Jessup, 162 N. Y. 127, 56 N. E. 538, holding right 
 granted by trustees of town to make roadway and erect bridge a franchise; 
 Western U. Teleg. Co. v. Electric Light & P. Co. ITS N. Y. 331, 70 N. E. 866, 
 
895 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 546 
 
 holding grant of right to one corporation to construct subway no bar to another's 
 right to construct one near former; New York C. & H. R. R. Co. v. New York, 
 142 App. Div. 591, 127 N. Y. Supp. 513, holding that grant of right to use 
 street by railroad company will be strictly construed in favor of public; Schinzel 
 v. Best, 45 Misc. 464, 92 N. Y. Supp. 754, reported in 48 Misc. 233, on what 
 constitutes a vested franchise; Adler v. Metropolitan Elev. R. Co. 29 Jones & S. 
 103, 18 N. Y. Supp. 858, holding grants of franchises are construed most favor- 
 ably to the public, and nothing included unless expressly given; Boise City v. 
 Boise Artesian Hot & Cold Water Co. 108 C. C. A. 523, 186 Fed. 710. holding 
 that legislative grants to municipalities are to be strictly construed. 
 
 Cited in notes (9 L. R. A. 34) on strict construction of grant of corporate 
 right or privilege; (50 L. R. A. 146) on privilege of using streets as a contract 
 within constitutional provision against impairing obligation of contracts; (22 
 L.R.A. (N.S.) 935) on power of municipality in absence of express authority to 
 grant street franchises. 
 To water company. 
 
 Cited in Smith v. Westerly, 19 R. I. 442, 35 Atl. 526, holding general power 
 to permit use of streets to lay water pipes not sufficient to sustain grant of 
 exclusive privilege to water company; Danville v. Danville Water Co. 178 111. 
 308, 69 Am. St. Rep. 304, 53 N. E. 118, holding city may reduce water rates to 
 be paid water company previously fixed by ordinance; Warsaw Waterworks Co. 
 v. Warsaw, 16 App. Div. 505, 44 N. Y. Supp. 876; Colby University v. 
 Canandaigua, 69 Fed. 672; Colby University v. Canandaigua, 96 Fed. 451, 
 holding village can construct its own water system without purchasing 
 plant of existing company; Long v. Duluth, 49 Minn. 290, 32 Am. St. Rep. 
 547, 51 N. W. 913, holding city may establish own water supply notwith- 
 standing exclusive privilege to water company; Skaneateles Waterworks Co. v. 
 Skaneateles, 184 U. S. 362, 46 L. ed. 590, 22 Sup. Ct. Rep. 400, Affirming 161 
 N. Y. 162, 46 L. R. A. 690, 55 N. E. 562, holding village may maintain own water 
 system, notwithstanding incorporation of company to supply water; Long Island 
 Water Supply Co. v. Brooklyn, 166 U. S. 696, 41 L. ed. 1168, 17 Sup. Ct. Rep. 
 718, Affirming 143 N. Y. 610, 26 L. R. A. 275, 38 N. E. 983, Which Affirms 73 
 Hun, 506, 26 N. Y. Supp. 198, holding act enabling city to acquire by condemna- 
 tion plant and franchise of water company, including contract with village an- 
 nexed to city, valid; Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 257, 
 91 N. W. 1081, sustaining city's right to terminate water company's franchise to 
 injury of company's property; Helena v. Helena Waterworks Co. 58 C. C. A. 394, 
 122 Fed. 14, holding grant of franchise to water company no bar to city's con- 
 struction of system; Boise City Artesian Hot & Cold Water Co. v. Boise City, 
 59 C. C. A. 239, 123 Fed. 235, holding ordinance granting right to lay pipes in 
 street, without fixing duration of privilege, a license revocable at will; Farmers' 
 Loan & T. Co. v. Sioux Falls, 131 Fed. 901, holding city was not estopped from 
 constructing a water system of its own, by fact that it had granted the right 
 to another; Rogers Park Water Co. v. Chicago, 131 111. App. 49, holding that a 
 municipal corporation could not grant an exclusive franchise to supply water; 
 Brummitt v. Ogden Waterworks Co. 33 Utah, 299, 93 Pac. 828, holding that 
 unless a grant is made exclusive it will not be so construed except by unavoidable 
 implication arising from the terms of the grant. 
 
 Cited in notes (9 L. R. A. 196) on franchises to water companies; (61 L. R. A. 
 81-83) on establishment and regulation of municipal water supply. 
 tltra vires acts. 
 
 Cited in Lovejoy v. Foxcroft, 91 Me. 371. 40 Atl. 141. holding town ia m>ver 
 estopped from invoking ultra vires; Re Water Corars. 176 X. Y. 2."v2. .N X. E 
 
5 L.R.A. 546] L. R. A. CASES AS AUTHORITIES. 896 
 
 348, Reversing 71 App. Div. 553, 76 N. Y. Supp. 11, holding appraisal under con- 
 tract of village to purchase waterworks, void; Southington v. Southington Water 
 Co. 80 Conn. 654, 69 Atl. 3023, 13 A. & E. Ann. Cas. 411, holding that water 
 companies dealing with a municipality are chargeable with notice of the powers 
 and limitations contained in the charters; Palladino v. New York, 3 Silv. Ct. 
 App. 398, holding that one dealing with a municipality has notice of the statu- 
 tory limitations on their powers. 
 
 Cited in notes (7 L.R.A. 760) on power of municipalities to borrow money; 
 (22 Am. St. Rep. 768) on ultra vires contract of municipality. 
 
 Distinguished in De Witt v. Elmira Transfer R. Co. 134 N. Y. 500, 32 N. E. 42, 
 holding city acquired all title of state in abandoned canal land converted, under 
 act of legislature, into a street. 
 Special franchise tax. 
 
 Cited in People ex rel. Metropolitan Street R. Co. v. State Tax Comrs. 79 App. 
 Div. 202, 80 N. Y. Supp. 85 (dissenting opinion), majority declaring void, 
 special franchise tax act assessing property formerly assessed by local board. 
 
 5 L. R. A. 554, DALL v. NOBLE, 116 N. Y. 230, 15 Am. St. Rep. 398, 22 N. E. 
 
 406. 
 Arbitrary refusal to accept work or give certificate. 
 
 Cited in Richison v. Mead, 11 S. D. 643, 80 N. W. 131, holding arbitrary refusal 
 to accept well cannot defeat recovery for price; Electric Lighting Co. v. Elder 
 Bros. 115 Ala. 152, 21 So. 983, holding dissatisfaction with completion of well 
 must be reasonable; Church v. Shanklin, 95 Cal. 629, 17 L. R. A. 213, 30 Pac. 789, 
 holding decision of attorney as to real estate title, final under agreement that it 
 shall be perfected "to his satisfaction;" Wortman v. Kleinschmidt, 12 Mont. 
 335, 30 Pac. 280, holding allegations of unreasonable withholding of architect's 
 certificate sufficient; Dorwin v. Westbrook, 86 Hun, 365, 33 N. Y. Supp. 449, 
 holding fraud or dishonesty in final estimate of chief engineer will deprive it of 
 collusiveness ; Hopper v. Cutting, 37 N. Y. S. R. 505, 13 N. Y. Supp. 820, holding 
 jury should determine whether building was completed to satisfaction, when 
 omission was in minor particular; Grinnell v. Kiralfy, 55 Hun, 424, 8 N. Y. 
 Supp. 623, holding actress protected from arbitrary dismissal by provision for 
 dismissal if employer dissatisfied in good faith; Weeks v. O'Brien, 141 N. Y. 202, 
 36 N. E. 185, holding complaint should contain allegation of unreasonable with- 
 holding of architect's certificate; Thomas v. New York & G. L. R. Co. 139 N. Y. 
 182, 34 N. E. 877, holding wrongful withholding of certificate when demanded, no 
 obstacle to recovery; Vought v. Williams, 120 N. Y. 256, 8 L. R. A. 592, 17 Am. 
 St. Rep. 634, 24 N. E. 195, holding unreasonable refusal to find title good 
 cannot defeat right to enforce land contract; Gearty v. New York, 171 N. Y. 
 72, 63 N. E. 804, holding park commissioner and engineer cannot arbitrarily 
 refuse to accept paving; Hummel v. Stern, 15 Misc. 28, 36 N. Y. Supp. 443, hold- 
 ing recovery cannot be defeated by arbitrary refusal to accept work to be per- 
 formed to satisfaction; Hummel v. Stern, 21 App. Div. 546, 48 N. Y. Supp. 528, 
 liolding guaranty to perform work to satisfaction will not defeat recovery if 
 refusal arbitrary; New York & N. H. Automatic Sprinkler Co. v. Andrews, 4 
 Misc. 126, 23 N. Y. Supp. 998, holding arbitrary withholding of certificate of 
 approval for equipping factory may be shown; Pollock v. Pennsylvania Iron 
 Works Co. 13 Misc. 197, 34 N. Y. Supp. 129, holding provision that interpretation 
 by engineer shall be conclusive as to plans does not extend to specifications; 
 Hospital Supply Co. v. O'Neill, 10 Misc. 659, 31 N. Y. Supp. 792, holding refusal, 
 without reason, to accept plant erected in accordance with contract, no answer 
 
397 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 555 
 
 to action; Flanagan v. Fox, 3 Misc. 371, 23 N. Y. Supp. 344, holding breach 
 of contract to purchase land under contract that vendor shall furnish title which 
 specified company shall approve, not justified by its arbitrary refusal to approve; 
 Childs Lumber & Mfg. Co. v. Page, 28 Wash. 137, 68 Pac. 373, holding owner 
 liable after failure to object to materials used by contractor; Thurman v. Omaha, 
 64 Neb. 494, 90 N. W. 253, denying one bound to take bonds against advice of 
 counsel, when bid subject to opinion; Parlin & O. Co. v. Greenville, 61 C. C. A. 
 596, 127 Fed. 60, sustaining recovery for erection of garbage furnace where com- 
 mittee unreasonably refuses to accept; Ross v. New York, 85 App. Div. 612, 82 
 N. Y. Supp. 920, holding contractor entitled to recover for construction of sewer 
 -where work completed; Haehnel v. Trostler, 54 Misc. 264, 104 N. Y. Supp. 533, 
 holding if doubtful objections are honestly urged, the plaintiff must complete 
 to satisfaction of defendant. 
 
 Cited in footnote to Hildebrand v. American Fine Art Co. 53 L. R. A. 826, which 
 sustains right to recover pro rata on entire contract of employment terminated 
 toy employer for cause. 
 
 Cited in notes (9 L. R. A. 53) on "substantial compliance" with building 
 contract; (17 L. R. A. 208) on promise to give full satisfaction, subject to judg- 
 ment of promisee; (12 L.R.A.(N.S.) 406) on termination of contracts of em- 
 ployment which permit rescission by dissatisfied employer. 
 
 Distinguished in Crawford v. Mail & Exp. Pub. Co. 163 N. Y. 408, 57 N. E. 616, 
 holding that one employed to write articles for newspaper so long as satisfactory 
 to publisher may be discharged without reason given; Johnson v. Bindseil, 16 
 Daly, 232, 10 N. Y. Supp. 321, holding where plaintiff agreed to teach the de- 
 fendant in a certain art, payments at certain times if the lessons were satis- 
 factory, and he failed to complete the course because of sickness, he could not 
 recover; Snyder v. Greenhut, 71 Misc. 119, 127 N. Y. Supp. 1068, holding that 
 contract employing person as manager of department store and requiring that 
 he give satisfactory service may be terminated if services are unsatisfactory. 
 
 5 L. R. A. 555, WOODRUFF v. BRADSTREET CO. 116 N. Y. 217, 22 N. E. 354. 
 What constitutes libel. 
 
 Cited in Zinserling v. Journal Co. 26 Misc. 593, 57 N. Y. Supp. 905, holding 
 that court is to determine whether or not language of plain import is action- 
 able; Barnard v. Press Pub. Co. 43 N. Y. S. R. 507, 17 N. Y. Supp. 573, holding, 
 where words are capable of both harmless and injurious meaning, there is ques- 
 tion for jury and innuendoes proper; Lapham v. Noble, 54 Fed. 109, holding 
 import of circular to intending bidders, that any interference by specified broker 
 ;and agent, in the business, will not be to bidder's interest, is question for jury; 
 Press Pub. Co. v. McDonald, 26 L. R. A. 532, 11 C. C. A. 558, 26 U. S. App. 167, 
 63 Fed. 241, holding libelous nature of publication that missing employee is 
 living in luxury in Canada, for jury, as ambiguous; Young v. Fox, 26 App. Div. 
 267, 49 N. Y. Supp. 634, sustaining charge that publication, if true, clearly 
 reflected on plaintiff's chastity and marital fidelity, and is libelous per se; 
 Shea v. Sun Printing & Pub. Asso. 14 Misc. 417, 35 N. Y. Supp. 703, holding 
 charge that married woman "living" with other than husband, question for 
 jury; Willmann v. Press Pub. Co. 49 App. Div. 37, 63 N. Y. Supp. 515, holding 
 it question for jury whether, in libel, scoundrel is implied in accusation of being 
 a "sucker;" McKenzie v. Denver Times Pub. Co. 3 Colo. App. 557, 34 Pac. 577, 
 holding article implying that attachment has issued against business firm, 
 libelous per se; Spurlock v. Lombard Invest. Co. 59 Mo. App. 232, holding adver- 
 tisement of trustee's sale to pay bond secured by deed of trust not actionable 
 per se by maker; N. S. Sherman Mach. Co. v. Dun, 28 Okla. 449, 114 Pac. 617, 
 L.R.A. Au. Vol. L 57. 
 
5 L.R.A. 555] L. R. A. CASES AS AUTHORITIES. 898 
 
 holding that false publication in cipher by commercial agency as to person's 
 credit is not libelous per se; Denney v. Northwestern Credit Asso. 55 Wash. 333, 
 25 L.R.A. (N.S.) 1023, 104 Pac. 769, holding a publication by a mercantile agency 
 that any inquiry concerning the credit of a person should be made at the office 
 of the agency, as the information that it has was such that it preferred to 
 furnish it upon inquiry, and the information was not furnished because the 
 agency held a disputed account against him, was not libelous per se. 
 
 Cited in footnote to Dun v. Weintraub, 50 L. R. A. 670, as to what constitutes 
 libel of merchant. 
 
 Cited in note (8 L. R. A. 194) as to what constitutes libel or slander. 
 
 Necessity of nlH-ninu special damages. 
 
 Cited in Dun v. Maier, 27 C. C. A. 103, 52 U. S. App. 381, 82 Fed. 172, 
 holding, where words published not libelous per se, special damages must be 
 averred to warrant recovery; Dun v. Weintraub, 111 Ga. 418, 50 L. R. A. 672, 
 36 S. E. 808, holding statement that merchant has mortgaged stock, though same 
 unrecorded, not actionable without allegations of special damages; Beecher v. 
 Press Pub. Co. 60 App. Div. 540, 69 N. Y. Supp. 895, holding no question for 
 jury where publication not libelous per se, and no special damages alleged or 
 proved. 
 
 5 L. R. A. 557, CADY v. BRADSHAW, 116 N. Y. 188, 22 N. E. 371. 
 Waiver of protest. 
 
 Cited in National Hudson River Bank v. Reynolds, 57 Hun, 310, 10 N. Y. Supp. 
 669, holding indorser's waiver of notice of nonpayment inferable from indorse- 
 ment of renewal note; Roch v. London, 24 Misc. 385, 53 N. Y. Supp. 261, holding 
 protest waived by indorser's saying, upon maker destroying note for which he 
 has given a worthless check in exchange, that note will be paid at maturity; 
 Werr v. Kohles, 64 App. Div. 119, 71 N. Y. Supp. 713, holding waiver of protest 
 not shown by evidence that after note's maturity indorser paid year's interest, 
 and assured payment upon being urged thereto, there being no evidence of failure 
 to protest at maturity; First Nat. Bank v. Gridley, 112 App. Div. 404, 98 N. 
 Y. Supp. 445, on the waiver of protest as affected by the Negotiable Instrument 
 Law. 
 
 Cited in note (33 L.R.A. (N.S.) 641) on bills and notes: implied waiver of 
 presentment and notice by indorser before maturity. 
 
 Distinguished in Congress Brewing Co. v. Habernicht, 83 App. Div. 143, 82 
 N. Y. Supp. 481, holding payee's statement that he would shut maker up if he 
 didn't pay, not relieve holder of duty to present and give notice. 
 Credibility of witness. 
 
 Cited in Lowey v. Fidelity Printing Co. 16 Misc. 551, 38 N. Y. Supp. 711, 
 holding that credibility of interested witness is for jury; San Antonio v. 
 Porter, 24 Tex. Civ. App. 451, 59 S. W. 922, holding it proper to show amount 
 of witness's contingent fee on cross-examination of plaintiff's counsel to enable 
 jury to determine credibility. 
 
 Cited in note (82 Am. St. Rep. 56) on evidence to show credibility of bias of 
 witness. 
 
 5 L. R. A. 559, PEOPLE v. BUDD, 117 N. Y. 1, 15 Am. St. Rep. 460, 22 N. E. 670. 
 
 Followed without discussion in People ex rel. Annan v. Walsh, 117 N. Y. 621, 
 22 X. E. 682, and People ex rel. Pinto v. Rhinehart, 117 N. Y. 621, 22 N. E. 682. 
 Reversals; where verdict justified. 
 
 Cited in People v. Kerns, 7 App. Div. 540, 40 N. Y. Supp. 243, holding Code 
 
899 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 559 
 
 directing judgment without regard to technical defects or exceptions not affecting 
 substantial rights forbids reversal of conviction unless substantial rights of de- 
 fendant infringed. 
 Force of Federal decision. 
 
 Cited in Re Morgan, 26 Colo. 438, 47 L. R. A. 62, 77 Am. St. Rep. 269, 58 Pac. 
 1071, holding United States Supreme Court decision of invalidity not binding on 
 courts of another state favoring validity of eight-hour law; Ex parte v. Boyce, ' 
 27 Nev. 365, 65 L.R.A. 69, 75 Pac. 1, 1 A. & E. Ann. Cas. 66 (dissenting opinion), 
 on the force of Federal decisions. 
 i:\i-rciNt- of police power; regulation of bnsineaa and contracts. 
 
 Affirmed in 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45, 12 Sup. Ct. 
 Rep. 468, sustaining statute regulating fees for elevating and discharging grain 
 by elevators. 
 
 Cited in Brass v. North Dakota, 153 U. S. 400, 38 L. ed. 760, 4 Inters. Com. 
 Rep. 673, 14 Sup. Ct. Rep. 857, Affirming 2 N. D. 498, 52 N. W. 408, upholding 
 statute defining public warehouses and prescribing maximum charge for elevat- 
 ing and storing grain; Re Fuller, 62 App. Div. 429, 71 N. Y. Supp. 40, holding 
 statute allowing percentage of inheritance tax as fee for appraisal not without 
 due process; Rochester v. West, 29 App. Div. 128, 51 N. Y. Supp. 482, upholding 
 ordinance prohibiting unlicensed bill posting, or unauthorized erection of bill 
 boards over 6 feet high; People v. Rosenberg, 67 Hun, 60, 22 N. Y. Supp. 56, 
 upholding prohibition of fat rendering, bone boiling, and fertilizer making, within 
 any village or 3 miles therefrom; White v. Farmers' Highline Canal & Reservoir 
 Co. 22 Colo. 201, 31 L. R. A. 831, 43 Pac. 1028, holding irrigation contract giving: 
 consumer right to draw water from canal on tender of value subject to subsequent 
 statute prohibiting such acts and regulating distribution, but giving remedy for 
 contract right; Fayetteville & S. R. & Turnp. Co. v. Fayetteville, 37 Misc. 226, 
 75 N. Y. Supp. 180. holding manner of turnpike company's occupancy of village 
 highway may be regulated under police power; Electric Power Co. v. New York, 
 29 Misc. 51, 60 N. Y. Supp. 590, upholding act requiring all electric wires in 
 large cities to be placed in conduits; People v. Formosa, 61 Hun, 275, 16 N. Y. 
 Supp. 753, upholding law prohibiting insurance companies from unjust discrim- 
 ination among individuals of same class, and of same expectation of life; Beards- 
 ley v. New York. L. E. & W. R. Co. 15 App. Div. 257, 44 N. Y. Supp. 175, up- 
 holding law requiring railroads to issue mileage books; People v. Lochner, 73 
 App. Div. 122, 76 N. Y. Supp. 396, upholding statute limiting average work day 
 of bakers and confectioners to ten hours; Re Morgan, 26 Colo. 448, 47 L. R, A. 
 65, 77 Am. St. Rep. 269, 58 Pae. 1071, holding void, act prohibiting working more 
 than eight hours a day in mines and smelters; Forster v. Scott, 136 N. Y. 584, 
 18 L. R. A. 547, 32 X. E. 976, holding denial of compensation for buildings 
 erected on land after filing map of proposed street across it, although no proceed- 
 ings begun, unconstitutional taking; People ex rel. Zeese v. Maston, 79 Hun, 
 583, 29 N. Y. Supp. 891, upholding law authorizing commitment of minor to re- 
 formatory; Simpson v. New York Rubber Co. 80 Hun, 418, 30 N. Y. Supp. 339, 
 holding statute requiring machinery guards cannot be waived by servant; State 
 ex rel. Payne v. Kinloch Teleph. Co. 93 Mo. App. 358, 67 S. W. 684, holding tele- 
 phone company amenable to courts for arbitrary and unconscionable conduct 
 toward citizen: Chicago v. Jackson, 196 111. 503, 63 N. E. 1013, denying right 
 of city in exercise of police power, to require lowering of street grade and eleva- 
 tion of railroad track, without payment to abutting owner for resulting dam- 
 ages; Lough v. Outerbridge, 143 N. Y. 277, 25 L. R. A. 677, 42 Am. St. Rep. 
 712, 38 N. E. 292, holding shipper may be charged with ordinary reasonable rate 
 demanded at time when special low rates are offered on condition of agreement 
 
5 LJLA. 559] L. R. A. CASES AS AUTHORITIES. 900 
 
 not to ship by rival vessel, to which he will not agree; Judy v. Thompson, 156 
 Ind. 535, 60 N. E. 270, holding imposition of forfeiture to mortgagor of specified 
 sum with attorney's fees not special privilege nor taking without compensation; 
 Topham v. Interurban Street R- Co. 42 Misc. 510, 86 X. Y. Supp. 295, sustain- 
 ing power of legislature to prescribe transfers as regulation of rate of fare: 
 Xew York T. Chelsea Jute Mills, 43 Misc. 269, 88 N. Y. Supp. 10S5. sustaining 
 statute as to employment of child labor; Buffalo v. Buffalo Gas Co. 81 App. 
 Div. 508, 80 N. Y. Supp. 1093, sustaining statute prohibiting charge for gas 
 meter; Whiteley v. Terry, 83 App. Div. 200, 82 N. Y. Supp. 89, sustaining stat- 
 ute making it crime to sell real estate in certain cities, without owner's written 
 authority; Viemeister v. White, 88 App. Div. 49, 84 N. Y. Supp. 712. sustaining 
 statute prohibiting children from attending public school unless vaccinated; 
 People e* rL Connecting Terminal R. Co. v. Miller, 178 N. Y. 207. 70 X. E. 
 472, holding earnings of corporation from property in transit, in conveying it 
 by elevators from boats to tracks, not subject to tax; State ex reJ. Utiek v. Polk 
 County, 87 Minn. 337, 60 L. R. A. 180, 92 N. W. 216, sustaining statute pro- 
 Tiding for drainage of wet lands in certain eases; Re Tuthill. 36 App. Div. 503, 
 5$ N. Y. Supp. 657, raising, without deciding, question whether drainage law 
 within police power; Cotting v. Kansas City Stock Yards Co. 183 I - 
 L. ed. 99, 22 Sup. Ct- Rep. 30, holding void, penal statute applicable to one of 
 several public stockyards, and defining duties of their operators, and regulating 
 charges; People ex rel. Bnrby v. Howland, 155 N. Y. 294, 41 L. R. A. 846, 49 
 N. E. 775 (dissenting opinion), majority holding act relieving justice of peace 
 of criminal jurisdiction and denying him compensation therefor violation of 
 Constitution providing for such officers; People T. Buffalo Fish Co. 164 X. Y. 
 Ill, 52 K R. A. 810, 79 Am. St. Rep. 622, 58 N. E. 34 (dissenting opinion), 
 majority holding prohibition against having certain fish in possession during 
 close season void as to Canadian fish imported under United States revenue laws 
 for commerce; Henley T. State, 98 Tenn. 724, 39 L. R. A. 142. 41 S. W. 1104 
 (dissenting opinion), majority upholding right to require witness to attend 
 court and give evidence without state providing for expense; Delaware. L. & 
 W. R. Co. v. Central Stock-Yard ft T. Co. 46 N. J. Eq. 281, 6 L. R. A. 863, 
 19 AtL 185 (dissenting opinion), majority holding stockyards not compelled to 
 accept business, in absence of statute; Atty. Gen. v. Old Colony R. Co. 160 
 Mass. 96, 22 L. R. A. ^99 35 N. E. 252 (dissenting opinion), majority holding 
 act requiring issuance of mileage tickets good on several roads, without provid- 
 ing fund for redemption, creating lien, or putting any limit on number or time 
 for use, a taking without reasonable compensation; People v. Hawkins. 157 X. 
 Y. 22, 42 L. R. A. 499, 68 Am. St. Rep. 736, 51 N. E. 257 (dissenting opinion), 
 majority holding regulation of price of labor by marking of convict-made goods 
 not valid exercise of police power, at least as to foreign goods; Sun Printing 
 
 6 Pub. Aaso. v. New York, 8 App. Div. 272, 40 N. Y. Snpp. 607 (dissenting 
 opinion), majority holding act authorizing city to issue bonds for construction 
 of rapid transit tunnel, and to lease it when built, valid; State v. Loomis. 115 
 Mo. 328, 21 L. R. A. 808, 22 S. W. 350 (dissenting opinion), majority holding 
 law prohibiting giving of orders in payment of wages unless they are redeem- 
 able without discount, in cash or in supplies at option of holder, void: Den- 
 ninger v. Recorder's Ct 145 Gal. 641, 79 Pac. 364, on the power of the citv to 
 regulate charges for gas; Brooklyn Union Gas Co. v. New York, 50 Misc. 455. 
 100 N. Y. Snpp. 570, holding state had power to regulate charges for illuminat- 
 ing gas, but could not make this confiscatory; McGnire v. Chicago, B. & Q. R. 
 Co. 131 Iowa, 354, 33 LR-A.i(X.S.) 714, 108 X. W. 902, holding the railroad 
 fellow servant law a constitutional exercise of the police power; Wright v. Hart, 
 
L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 559 
 
 182 X. Y. 350. 2 L.R.A.(X.S.) 348, 75 N. E. 404, 3 A. 4 E. Ann. Cas. 263, 
 reversing 103 App. Div. 221, 93 N. Y. Supp. 60 (dissenting opinion), on the regu- 
 lation of public businesses as a taking of property without due process of law; 
 dissenting opinions in Saratoga Springs v. Saratoga Gas, Electric, Light. Heat 
 & P. Co. 122 App. Div. 222, 107 N. Y. Supp. 341; People v. Hawkins, 13 N. Y. 
 Crim. Rep. 311; People v. Buffalo Fish Co. 15 N. Y. Grim. Rep. 110, on 
 the regulation of certain businesses by the state; North Carolina Corp. Com- 
 mission v. Atlantic Coast Line R, Co. 137 N. C. 15, 115 Am. St. Rep. 636, 
 49 S. E. 191, holding that it is within the police power of the state to re- 
 quire railroads to make reasonable connections, with intersecting lines; Madi- 
 son v. Madison Gas A Electric Co. 129 Wis. 265, 8 LJl.A.(N.S.) 536, 116 
 Am. St. Rep. 944, 108 N. W. 65, 9 A. & E. Ann. Cas. 819, holding that a 
 grant of an exclusive franchise carried with it by implication, in the absence 
 of express provision, that gas is to be furnished at a reasonable rate; Mc- 
 Guire v. Chicago, B. i Q. R. Co. 131 Iowa, 354, 33 L.R.A.(N.S.) 714, 108 N. 
 W. 902, holding that statute declaring invalid any contract limiting liability 
 of railway for negligence of fellow servant is not unwarranted interference 
 with right of private contract; New York Teleph. Co. v. Siegel-Cooper Co. 
 137 App. Div. 161, 121 N. Y. Supp. 1033, to the point that duties and obliga- 
 tions of common carriers may be enforced by courts and legislature. 
 
 Cited in footnotes to State v. Edwards, 25 L. R. A. 504, which holds valid, 
 limitation of amount of toll for grinding; American Live Stock Commission Co. 
 v. Chicago Live Stock Exchange, 18 L. R. A. 190, which denies right to compel 
 stock exchange carrying on business in incorporated market to refrain from 
 discrimination; Bagg v. Wilmington, C. & A. R. Co. 14 L. R. A. 596, which 
 holds act compelling shipment of freight within specified time not interference 
 with commerce; Stockton v. Powell, 15 L. R. A. 42, which holds state improve- 
 ment of navigable water entirely within state not interference with commerce; 
 Rippe v. Becker, 22 L. R. A. 857, which denies power of state to own and 
 operate grain elevator; Lafarier v. Grand Trunk R. Co. 17 L. R. A. Ill, which 
 holds state statute giving ticket holder stopover rights not applicable outside of 
 state. 
 
 Cited in notes (10 L. R. A. 135) as to where police power is lodged; (13 L. R. 
 A. 107) as to state laws affecting interstate commerce; (13 L. R. A. 687) as to 
 state laws imposing taxes or penalties upon immigration; (33 L. R. A. 178) as 
 to legislative power to fix tolls, rates, or prices; (6 L.R.A.(N.S.) 836) on 
 businesses affected with public interest subjecting them to regulation and con- 
 trol in respect to rates or prices; (36 L.R.A. (X.S.) 220) on state law affecting 
 telegraphs as regulation of interstate commerce; (20 Am. St. Rep. 558) on 
 due process of law; (25 Am. St. Rep. 883, 889) on 14th Amendment as to 
 special privileges, burdens, and restrictions; (53 Am. St. Rep. 572) on defini- 
 tion of police power; (62 Am. St. Rep. 290. 299) on regulation of rates. 
 
 Distinguished in Bronk v. Barckley, 13 App. Div. 80, 43 N. Y. Supp. 400, hold- 
 ing authorized contract to furnish convict labor for stated term not abrogated 
 by constitutional provision; Rochester & C. Turn p. Road Co. v. Joel, 41 App. 
 Div. 50. 53 X. Y. Supp. 346, holding amendment to turnpike law, striking out 
 provision for collection of tolls for velocipedes or bicycles, unconstitutional. 
 
 Criticized in State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 448, 51 L. 
 R. A. 164. 81 Am. St. Rep. 368, 60 S. W. 91, holding press association without 
 exclusive or peculiar facilities or public franchise cannot be compelled to furnish 
 news to paper in town where others are supplied. 
 Public franchise. 
 
 Cited in Grannan v. Westchester Racing Asso. 153 N. Y. 461, 47 N. E. 896, 
 
5 L.R.A. 559] L. R. A. CASES AS AUTHORITIES. 902 
 
 Affirming 16 App. Div. 13, 44 X. Y. Supp. 790, holding legislature may determine 
 and direct conditions of exercise of rights under public franchise; New York 
 Bd. of Fire Underwriters v. Whipple & Co. 2 App. Div. 366, 37 N. Y. Supp. 712, 
 holding legislature may authorize organization of fire patrol and assessments 
 upon those engaged in insurance business tn support it; People ex rel. Tyroler 
 v. Warden of City Prison, 157 N. Y. 145, 43 L. R. A. 275, 68 Am. St. Rep. 763, 
 51 N. E. 1006 (dissenting opinion), majority holding law forbidding all but car- 
 riers' duly appointed agents, from being ticket brokers, violation of constitutional 
 liberty not justified by police powers; New York Cement Co. v. Consolidated 
 Hosendale Cement Co. 37 Misc. 753, 76 N. Y. Supp. 469, holding purchaser of 
 part of canal constructed under franchise limiting tolls bound by such limita- 
 tions. 
 When law declared unconstitutional. 
 
 Cited in Beardsley v. New York L. E. & W. R. Co. 17 Misc. 259, 40 N. Y. 
 Supp. 1077, holding reasonable doubt as to constitutionality of an act should be 
 resolved in favor of validity; Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. 
 Y. 357, 14 L. R. A. 484, 28 N. E. 358, holding that questions as to validity of 
 statutes are always important; Gould v. Mahaney, 39 App. Div. 431, 57 N. Y. 
 Supp. 363, holding constitutional authorization to create courts of justices of 
 the peace in cities does not contemplate courts with diminished jurisdiction; 
 Metz v. Maddox, 121 App. Div. 160, 105 N. Y. Supp. 702, on the presumption 
 of constitutionality of law; People ex rel. Peabody v. Baker, 59 Misc. 363, 110 
 N. Y. Supp. 848, holding a law requiring commitment to insane hospital of 
 person acquitted of crime by jury, on the ground of insanity, was constitu- 
 tional; Reid v. Stevens, 70 Misc. 182, 2 N. Y. Civ. Proc. Rep. N. S. 146, 126 
 N. Y. Supp. 379, to the point that statutes will be declared unconstitutional 
 only in the clearest cases; Woods v. Cottrell, 55 W. Va. 483, 65 L.R.A. 619, 
 104 Am. St. Rep. 1004, 47 S. E. 275, 2 A. & E. Ann. Cas. 933, holding a statute 
 which provided for the seizure of gaming implements is not unconstitutional 
 as taking property without due process of law. 
 
 5 L. R. A. 572, COHN v. NORTON, 57 Conn. 480, 18 Atl. 595. 
 Damage for breach of contract. 
 
 Cited in Lewis v. Hartford Dredging Co. 68 Conn. 236, 35 Atl. 1127, holding, 
 in action for breach of contract to spread shells over oyster bed, increase of value 
 of ground which would have followed execution of contract too speculative and 
 remote to constitute basis for estimate of damage; Bernhard v. Curtis, 75 Conn. 
 482, 54 Atl. 213, holding measure of damages for breach of contract to give pos- 
 session, difference between agreed rent and value of term plus rent paid in 
 advance; South Gardiner Lumber Co. v. Bradstreet, 97 Me. 174, 53 Atl. 1110, 
 holding difference between contract price and price when logs should have been 
 delivered, measure of damages for nondelivery; Devers v. May, 124 Ky. 393, 
 99 S. W. 255; Sloan v. Hart, 150 N. C. 273," 21 L.R.A.(N.S.') 241, 134 Am. 
 St. Rep. 911, 63 S. E. 1037, holding that the measure of damages for breach 
 of contract to lease is the difference between the rent agreed upon and the 
 market value of the term, plus any additional damages that can be proved; 
 Oldfield v. Angeles Brewing & Malting Co. 62 Wash. 264, 35 L.R.A. (N.S.) 429, 
 113 Pac. 630, Ann. Cas. 1912C, 1050; Skinner v. Gibson, 86 Kan. 436, 121 Pac. 
 513, holding that measure of damages for breach of contract of lease, where 
 lessor knew of intended use is difference between rent agreed upon and market 
 value of term, plus special damages proved. 
 
 Cited in notes (53 L.R.A. 35, 40) on loss of profits as element of damage; 
 (21 Am. St. Rep. 121) on measure of damages for breach of contract. 
 
903 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 579 
 
 Landlord's duty to pat tenant In possession. 
 
 Cited in notes (134 Am. St. Rep. 917) on landlord's duty to put tenant in 
 possession; (15 Eng. Rul. Gas. 367) on effect of demise of premises in pos- 
 session of tenant. 
 
 5 L. R. A. 575, ANTHONY v. HOUSEHOLD SEWING-MACHINE CO. 16 R. I. 
 
 571, 18 Atl. 176. 
 Hi wilts under ultra -vires contract. . 
 
 Cited in Bath Gaslight Co. v. Claffy, 151 N. Y. 45, 36 L. R. A. 671, 45 N. E. 
 390 (dissenting opinion), majority holding lessee of corporation liable under 
 ultra vires lease; Chicago Sign Printing Co. v. Wolf, 135 111. App. 371, to the 
 point that money loaned to corporation to be repaid in preferred stock to be 
 issued may be recovered where corporation was without power to issue such 
 stock. 
 Contracts; consideration. 
 
 Cited in Providence Albertype Co. v. Kent & S. Co. 19 R. I. 563, 35 Atl. 152, 
 holding promise based on agreement to deliver stock of future corporation, with- 
 out consideration. 
 Corporate stock. 
 
 Cited in Chicago Sign Printing Co. v. Wolf, 135 111. App. 371, holding that 
 stockholders were powerless to make any agreement involving increase of capital 
 stock, except to call meeting to do so in way provided by statute. 
 
 Cited in note (27 L. R. A. 137, 153) on preferred guaranty and interest bear- 
 ing stock. 
 
 5 L. R. A. 577, BORN v. HORSTMANN, 80 Cal. 454, 22 Pac. 338. 
 Condition In will for separation from hnsband. 
 
 Cited in Ellis v. Birkhead, 30 Tex. Civ. App. 532, 71 S. W. 31, sustaining trust 
 conditioned upon divorce; Ransdall v. Boston, 172 111. 446, 43 L.R.A. 528, 50 
 N. E. Ill, holding a bequest to a son, in trust for him, until such time as he 
 became unmarried, but if he dies, without being divorced and childless, then 
 over, was not void as against public policy; Coe v. Hill, 201 Mass. 22, 86 
 N. E. 949, holding provision in will for a daughter to enjoy a certain fund 
 if she procured a divorce from her husband, was invalid if made, for purpose 
 of inducing her to procure one without good cause; King's Estate, 58 Pittsb. 
 L. J. 378, holding valid, gift in trust for son, providing that if he should be 
 separated from his wife, he should receive gift free from trust. 
 
 Cited in notes (84 Am. St. Rep. 150; 25 Eng. Rul. Cas. 638) on validity of 
 condition in restraint of marriage. 
 
 Distinguished in Re Haight. 51 App. Div. 315, 64 N. Y. Supp. 1029, holding 
 a provision in a will that two thousand dollars of a certain income should be 
 paid his son for life, but if he procured a divorce from her, then to receive the 
 whole income, was void. 
 
 5 L. R. A. 579, MORGAN v. BALL, 81 Cal. 93, 15 Am. St. Rep. 34, 22 Pac. 331. 
 Chang-e of possession. 
 
 Cited in Carter v. McQuade, 83 Cal. 278, 23 Pac. 348, holding wife's claim to 
 property released by husband, superior to claim of latter's creditors; Murphy v. 
 Mulgrew, 102 Cal. 551, 41 Am. St. Rep. 200, 36 Pac. 857, holding sale of horses 
 to wife void, as to creditors, where there is no change of possession. 
 
 Cited in note (90 Am. St. Rep. 546) on attacks by creditors on conveyances 
 made by husbands to wives. 
 
5 L.R.A. 580] L. R. A. CASES AS AUTHORITIES. 904 
 
 5 L. R. A. 580, SCHMIDT v. BAUER, 80 Cal. 565, 22 Pac. 256. 
 
 Duty of owner or occupant of premises as to licensees or trespassers. 
 
 Cited in Peters v. Bowman, 115 Cal. 348, 56 Am. St. Rep. 106, 47 Pac. 113, 
 denying liability for death of boy drowned while trespassing on vacant lot; 
 Kennedy v. Chase, 119 Cal. 642, 63 Am. St. Rep. 153, 52 Pac. 33, denying liability 
 for injury to one who voluntarily entered ship and fell into unguarded hole; 
 Grundel v. Union Iron Works, 141 Cal. 567, 75 Pac. 184, denying liability for 
 death of one who "without business" entered ship and fell from gangway; Faris 
 v. Hoberg, 134 Ind. 276, 39 Am. St. Rep. 261, 33 N. E. 1028, holding owner owe* 
 no duty to guard elevator shaft as to person entering storeroom to look for 
 drayman; Thiele v. McManus, 3 Ind. App. 134, 28 N. E. 327, holding store- 
 keeper, inviting public to enter building for purposes of trade, not under obli- 
 gation to one not of class of persons invited, to guard open hatchway; Clark 
 v. Michigan C. R. Co. 113 Mich. 27, 67 Am. St. Rep. 442, 71 N. W. 327, holding 
 railroad company liable to trespasser or licensee falling over semaphore while 
 crossing right of way; Glaser v. Rothschild, 106 Mo. App. 428, 80 S. W. 332, 
 holding that one going upon premises as a licensee goes at his own risk; Cliffe 
 v. Pacific Mail S. S. Co. 81 Fed. 810, holding that owners of ships owe a positive 
 duty to stevedores employed on their ships to provide reasonable security 
 against danger to life and limb; Burns v. Dunham, C. & H. Co. 148 Cal. 210, 
 82 Pac. 959, on the degree of care which a store-keeper owes to one upon his 
 premises for the purpose of doing business; Shaw v. Goldman, 116 Mo. App. 
 339, 92 S. W. 165, holding that the proprietor of a public store is bound to use 
 reasonable care to keep the premises in a reasonably safe condition, or to warn 
 customers of any danger, unknown to the customer, but known to proprietor; 
 Herzog v. Hemphill, 7 Cal. App. 118, 93 Pac. 899, holding person, with permis- 
 sion to use toilet room was a mere licensee, to whom the owner owed no duty; 
 Emry v. Roanoke Nav. & Water-Power Co. Ill N. C. 99, 17 L.R.A. 701, 16 
 S. E. 18, holding that the landowner owes no duty to a wilful trespasser, 
 except not to wantonly injure him; Means v. Southern California R. Co. 144 
 Cal. 479, 77 Pac. 1001, 1 A. & E. Ann. Caa. 206, holding same as to one in a 
 freight depot; Brown v. Shirley Hill Coal Co. 47 Ind. App. 359, 94 N. E. 574, 
 holding that servant cannot recover for injury received while on an errand for 
 his own convenience; Hutchinson v. Cleveland-Cliffs Iron Co. 141 Mich. 349, 
 104 N. W. 698, holding servant guilty of contributory negligence so as to pre- 
 clude recovery, where he left his place of work and went to part of mill where 
 he had no business. 
 
 Cited in footnotes to Sterger v. Van Siclen, 16 L. R. A. 640, which holds 
 property owner not required to have stairways safe as to person on premises in 
 search of child; Benson v. Baltimore Traction Co. 20 L. R. A. 714, which denies 
 recovery to student falling into uncovered vat while class inspecting power 
 house under permission; Ryerson v. Bathgate, 57 L. R. A. 308, which denies 
 liability of owner for injury to one using premises for purpose not authorized 
 by invitation; Boyce v. Union P. R. Co. 18 L. R. A. 509, which requires pro- 
 prietor of bathing house to keep bottom free from substances which would injure 
 bather's feet. 
 
 Cited in notes (9 L. R. A. 642) on owner owes no duty to mere licensee; (11 
 L. R. A. 361) on duty of owner of building to keep it in safe condition; (7 L. 
 R. A. 621) on negligence in dangerous condition of premises; (9 L. R. A. 641) 
 on negligence as basis of liability; (14 L.R.A. (X.S.) 1120) on right of one 
 coming upon property on business with owner, but temporarily turning aside 
 for own purposes, to protection against defects; (17 L.R.A. (N.S.) 917) on 
 duty of owner of premises to protect licensee against hidden dangers; (14 Am. 
 
905 I" K. A. CASES AS AUTHORITIES. [5 L.R.A. 586 
 
 St. Rep. 436) on duty of owner or occupant as to safe maintenance of private 
 
 passage-way. 
 
 Who are licensees. 
 
 Cited in footnotes to Manning v. Chesapeake & O. R. Co. 16 L. R. A. 271, 
 which holds one making friendly call on telegraph operator a mere voluntary 
 licensee; Gibson v. Leonard, 17 L. R. A. 588, which holds fire insurance patrol- 
 man entering burning building to save property a mere licensee. 
 Allegations of negligence. 
 
 Cited in note (59 L. R, A. 271) on sufficiency of allegations of negligence. 
 
 6 L. R. A. 583, DALE v. SEE, 51 N. J. L. 378, 14 Am. St. Rep. 688, 18 Atl. 306. 
 Bailments; contract varying legal liability. 
 
 Cited in Ames v. Melendy, 64 Vt. 555, 24 Atl. 1052, holding custom sawyer 
 absolutely agreeing to keep logs safely, liable irrespective of negligence. 
 Practice on reversal by court of appeals. 
 
 Cited in State, Newark, Prosecutor v. Essex Club, 53 N. J. L. 107, 20 Atl. 769, 
 holding proper practice on reversal of erroneous reversal by court of common 
 pleas is to affirm judgment of trial court. 
 Appeal; what objections available. 
 
 Cited in Oliphant v. Brearley, 54 N. J. L. 523, 24 Atl. 660, holding ground of 
 objection relied on for reversal must be presented to court below. 
 
 Cited in note (8 L. R. A. 610) on necessity of stating grounds of exception. 
 
 Questions revlewnble. 
 
 Cited in Lavin v. Public Service R. Co. 77 N. J. L. 218, 71 Atl. 58, holding 
 a finding of fact will not be reviewed by appellate court where there is evidence 
 to support it. 
 
 When case retriable. 
 
 Cited in Feeney v. Rueger, 57 N. J. L. 357, 31 Atl. 217, holding that prior to 
 1888 common pleas could not retry case appealed from district court. 
 
 5 L. R. A. 586, ABBOTT v. HAPGOOD, 150 Mass. 248, 15 Am. St. Rep. 193, 22 
 
 X. E. 907. 
 Contracts by promoters. 
 
 Cited in Holyoke Envelope Co. v. United States Envelope Co. 182 Mass. 174, 
 65 X. E. 54, and Winters v. Hub Min. Co. 57 Fed. 288, holding contract made 
 for future corporation not binding; Ireland v. Globe Milling & Reduction Co. 
 20 R. I. 196, 38 L. R. A. 302, 38 Atl. 116, holding corporation cannot enforce 
 contract by proposed stockholders before organization, giving it option to pur- 
 chase stock; Tuttle v. Tuttle, 101 Me. 292, 64 Atl. 496, 8 A. & E. Ann. Cas. 
 260, holding corporation not liable for services rendered in its behalf under a 
 contract with its promoters, in the absence of ratification or provision in the 
 charter; Bradford v. Metcalf, 185 Mass. 207, 70 N. E. 40, holding after-organized 
 corporation was not bound by contracts with promoters in its behalf, nor could 
 it ratify; Dunning v. Bates, 186 Mass. 125, 71 N. E. 309, holding a corporation 
 to be formed for the benefit of bondholders of an old one, was not a party 
 to the trust for the benefit of the bondholders; Pennell v. Lothrop, 191 Mass. 
 360, 77 N. E. 842, holding that a corporation was not a proper party to a suit 
 to restrain the infringement of a copyright, under a contract made in its behalf 
 by one of the promoters; Koppel v. Massachusetts Brick Co. 192 Mass. 225, 78 
 N. E. 128, holding that a corporation was not liable for goods ordered by 
 another for its use three months before it was organized, though the goods 
 were transferred to it afterward, where it did not ratify the agreement; John 
 
5 L.R.A. 586] L. R. A. CASES AS AUTHORITIES. 906 
 
 L. Whiting & Sons Co. v. Barton, 204 Mass. 172, 90 X. E. 528, on the rights 
 of parties under contracts by promoters in behalf of proposed corporations. 
 
 Cited in notes (13 Am. St. Rep. 29; 17 Am. St. Rep. 161, 162, 163; 22 Eng. 
 Rul. Cas. 40; (26 L.R.A. 551) on liability of corporations on contract of 
 promoters. 
 
 Distinguished in Bonham Cotton Press Co. v. MeKellar, 86 Tex. 700, 26 S. W. 
 1056, holding contract of promoters adopted after incorporation and acquiesced 
 in by other party, valid; McArtlmr v. Times Printing Co. 48 Minn. 321, 31 Am. 
 St. Rep. 653, 51 N. W. 216, holding corporation may adopt contract made on its 
 behalf before organization; North Anson Lumber Co. v. Smith, 209 Mass. 337, 
 95 N. E. 838, holding that corporation could not recover on notes made by 
 defendant's intestate and indorsed to it but which by its conduct it agreed to 
 hold such maker harmless. 
 Limited partnerships. 
 
 Cited in footnote to Edwards v. Warren Linoline & Gasoline Works, 38 L. R. 
 A. 791, which holds partnership association organized under laws of Pennsyl- 
 vania regarded as partnership instead of corporation in Massachusetts. 
 Dainagres for breach of contract. 
 
 Cited in Hockersmith v. Hanley, 29 Or. 39, 44 Pac. 497, holding measure of 
 damages for breach of contract to sell cattle to be shipped to market is differ- 
 ence between market price and contract price plus transportation; New York 
 Bank Note Co. v. Kidder Press Mfg. Co. 192 Mass. 406, 78 N. E. 463, holding 
 that the measure of damages for breach of restrictive agreement not to aell 
 specially adapted machines to others, was the difference between the machines 
 protected by the agreement and the market value as affected by the breach ; 
 Leavitt v. Fiberloid Co. 196 Mass. 446, 15 L.R.A. (N.S.) 865, 82 N. E. 682, 
 holding that upon a breach of warranty the party may recover whatever dam- 
 ages follow as a natural consequence and a proximate result of such breach or 
 may have been within the contemplation of the parties at the time the contract 
 was made; C. W. Hunt Co. v. Boston Elev. R. Co. 199 Mass. 235, 85 N. E. 446, 
 holding the plaintiff could recover for loss caused by breach of contract to 
 furnish steel towers, which would have enabled them to operate more eco- 
 nomically; Hanson v. Wittenberg, 205 Mass. 327, 91 N. E. 383, holding that 
 amount of damages for breach of contract should be such as parties at time 
 of making contract are supposed to have contemplated would follow from breach. 
 
 Cited in notes (57 L.R.A. 195) on damages for breach of contract on sale of 
 article that has no market price; (36 L. ed. U. S. 801; 6 Eng. Rul. Cas. 625) 
 on damages recoverable for breach of contract. 
 
 Distinguished in Laporte Improv. Co. v. Brock, 99 Iowa, 489, 61 Am. St. Rep. 
 245, 68 N. W. 810, holding loss of rent not recoverable in action for failure to 
 furnish brick which might have been purchased elsewhere. 
 
 5 L. R. A. 587, HULL v. CHICAGO, ST. P. M. & O. R. CO. 41 Minn. 510, 16 Am. 
 
 St. Rep. 722, 43 N. W. 391. 
 Liability for loss of freight. 
 
 Cited in notes (6 L. R. A. 849) on liability of carrier for loss of goods; (11 L. 
 R. A. 616) on defenses in action for loss by carrier. 
 Burden of proof as to nejiHgence of carrier. 
 
 Cited in Shea v. Minneapolis, St. P. & S. Ste. M. R. Co. 63 Minn. 229, 65 N. 
 W. 458, holding carrier must not only show loss within excepted liability, but 
 also absence of negligence; Southard v. Minneapolis St. P. & S. Ste. M. R. Co. 
 60 Minn. 392, 62 N. W. 619, holding burden on carrier to show destruction of 
 
907 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 589 
 
 merchandise by fire, while in transit, not through negligence; Boehl v. Chicago, 
 M. & St. P. R. Co. 4 4Minn. 191, 46 N. W. 333, holding burden on carrier to show 
 injury to stallion in transit resulted from inherent nature or propensity of 
 animal; Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 135, 17 L.R.A. 343, 
 32 Am. St. Rep. 239, 31 N. E. 781, holding contract limiting liability does Tiot 
 relieve carrier from burden of showing exemption from duties imposed by law; 
 Louisville & N. R. Co. v. Touart, 97 Ala. 518, 11 So. 756, holding, notwithstand- 
 ing contract exempting carrier from liability, proof of breakage makes prima 
 facie case, and imposes burden on carrier to show exercise of due care; Hudson 
 River Lighterage Co. v. Wheeler Condenser & E. Co. 93 Fed. 377, holding burden 
 on carrier to overcome presumption of negligence arising from proof that casting 
 shipped in good order was found cracked on delivery; Owens Bros. v. Chicago, 
 R. I. & P. R. Co. 139 Iowa, 544, 117 N. W. 762, holding that burden is on 
 carrier to show contract varying his liability and that loss came within con- 
 tract; Duncan v. Great Northern R. Co. 17 N. D. 617, 19 L.R.A.(N.S.) 959, 
 118 N. W. 826; Fockens v. United States Exp. Co. 99 Minn. 407, 109 N. W. 
 834, holding that where goods are shown to have been delivered to carrier in 
 good condition and received from him damaged burden is on carrier to disprove, 
 negligence; Inman & Co. v. Seaboard- Air Line R. Co. 159 Fed. 970, on same 
 point. 
 
 Cited in footnote to Hears v. New York, N. H. & H. R. Co. 56 L. R. A. 884, 
 which holds that carrier has burden of proving that delivery of goods, in wet 
 condition not due to its negligence. 
 
 Cited in note (20 Am. St. Rep. 643) on burden of proving negligence of 
 carrier. 
 Contracts limiting,- liability of carrier. 
 
 Cited in Abrams v. Milwaukee, L. S. & W. R. Co. 87 Wis. 492, 41 Am. St. 
 Rep. 55, 58 N. W. 780, holding carrier cannot by contract exempt itself from 
 liability for injuries to live stock caused by its negligence. 
 
 Cited in footnote to Chicago & N. W. R. Co. v. Chapman, 8 L. R. A. 508, which 
 holds carrier cannot limit liability for gross negligence or wilful misconduct. 
 
 Cited in note (88 Am. St. Rep. 95, 125) on limitation of carrier's liability 
 in bills of lading. 
 Necessity of pleading and proving: limitation on liability. 
 
 Cited in Doss v. Moore, 69 Ark. 258, 63 S. W. 66, holding defense of want of 
 notice from shipper of loss or damage, as provided in contract, waived if not 
 pleaded. 
 
 5 L. R. A. 589, MAGOVERN v. ROBERTSON, 116 N. Y. 61, 22 N. E. 398. 
 
 Followed without discussion in Magovern v. Robertson, 127 N. Y. 691, 29 N. E. 
 150. 
 Who are liable as partners. 
 
 Cited in Hull v. Earth, 48 App. Div. 593, 62 N. Y. Supp. 946, and First Nat. 
 Bank v. Staples, 34 N. Y. S. R. 506, 11 N. Y. Supp. 809.. holding persons having 
 proprietary interest in business and in profits liable to creditors as partners; 
 Zabriskie v. Coates, 41 App. Div. 319, 58 N. Y. Supp. 523, holding, where enter- 
 prise is joint, and parties are to share profits and losses, they are liable to third 
 persons as partners, whether there is agreement of partnership or not; Donald v. 
 Guy, 127 Fed. 232, holding members of pilot association jointly liable for collision 
 caused by negligence of member. 
 
 Cited in footnotes to Dutcher v. Buck, 20 L. R. A. 776, which holds partnership 
 created between land owner and one cutting timber under contract for equal 
 
5 L.R.A. 589] L. R. A. CASES AS AUTHORITIES. 908 
 
 division of profits ; Shrum v. Simpson, 49 L. R. A. 792, which holds no partnership 
 created by contract for working farm and dividing proceeds; Brandon v. Connor, 
 63 L.R.A. 260, which holds partnership as to third persons constituted by agree- 
 ment with contractors for construction of railroad to furnish services and part 
 of necessary animals for use. 
 
 Cited in notes (115 Am. St. Rep. 415, 431) on what constitutes a partnership; 
 (18 L.R.A. (N.S.) 1049, 1052, 1073) on effect of agreement to share profits to 
 create partnership. 
 
 Distinguished in Re Schenkein, 113 Fed. 424, holding, where profits are made 
 measure of compensation to one having no other interest in business, partnership 
 does not exist. 
 
 5 L. R. A. 591, O'NEILL v. NEW YORK, O. & W. R. CO. 115 N. Y. 579, 22 N. E. 
 
 217. 
 Liability of railroad for fires. 
 
 Cited in Connelly v. Erie R. Co. 68 App. Div. 546, 74 N. Y. Supp. 277, holding 
 abutting owner cannot recover for fire started in railroad ties left on railroad 
 land for his accommodation; Hoffman v. King, 160 N. Y. 626, 46 L. R. A. 675, 
 73 Am. St. Rep. 715, 55 N. E. 401, holding fire communicated through inter- 
 vening buildings, remote cause of loss; Brush v. Long Island R. Co. 10 App. 
 Div. 540, 42 N. Y. Supp. 103, holding railway is bound to see that fire started by 
 its engine in accumulation on its land does not spread; Sherman v. Slayback, 34 
 N. Y. S. R. 383, holding railway liable for fire started in accumulated rubbish 
 on its land and spreading therefrom; Eighme v. Rome, W. & O. R. Co. 32 N. Y. 
 S. R. 759, 10 N. Y. Supp. 600, holding railway bound to use all reasonable care 
 to prevent spread of fire originating in combustible matter on its land; Collins 
 v. New York C. & H. R. R. Co. 33 N. Y. S. R. 571, 11 N. Y. Supp. 308, holding 
 fact that smokestack on engine was as good as any in use does not relieve rail- 
 way of responsibility for fire by sparks; Babcock v. Fitchburg R. Co. 140 X. Y. 
 319, 35 N. E. 596, holding railway should adopt such approved spark arresters 
 on its engine as have been adopted in the business; Stephenson v. Pennsylvania 
 R. Co. 20 Pa. Super. Ct. 167, holding railroad liable for damage from sparks 
 from locomotive falling into accumulations of rubbish, spreading thence to wood- 
 land; Carter v. Pennsylvania R. Co. 57 C. C. A. 127, 120 Fed. 665, holding rail- 
 road prima facie liable for loss of stock burned in car set afire by sparks from 
 engine. 
 
 Cited in footnote to Norfolk & W. R. Co. v. Fritts, 68 L.RA. 864, which 
 sustains liability for fire of railroad company unnecessarily running heavy 
 freight train up grade at double its scheduled speed in dry season and during 
 heavy wind. 
 
 Cited in notes (9 L. R. A. 750) on duty and obligations of railroad company 
 to guard against setting out fires; (21 L. R. A. 260) on liability for setting fires 
 which spread to property of others. 
 Questions for jury aa to. 
 
 Cited in Frace v. New York, L. E. & W. R. Co. 143 N. Y. 189, 38 N. E. 102, 
 holding burning of hotel as natural and direct result of sparks from engine 
 should be left to jury; Douglass v. Rome, W. & 0. R. Co. 1 Silv. Sup. Ct. 211, 
 23 N. Y. S. R. 457, 5 N. Y. Supp. 214, holding evidence of negligence by railway 
 in allowing material to accumulate on its land from which fire spread sufficient 
 to go to jury; Flinn v. New York C. & H. R. R. Co. 67 Hun, 634, 22 N. Y. Supp. 
 473, holding scattering of sparks or coals by engine in quantities to endanger 
 property some evidence of negligence; O'Reilly v. Erie R. Co. 72 App. Div. 
 230, 76 N. Y. Supp. 171, holding evidence that fires were discovered soon after 
 
909 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 594 
 
 engines passed probably sufficient to sustain finding that fires were set by engines ; 
 Brown v. Buffalo, R. & P. R. Co. 4 App. Div. 469, 38 N. Y. Supp. 655, holding 
 evidence sufficient for jury as to railway's negligence in permitting grass and 
 weeds to grow without cutting, from which fire spread; Continental Ins. Co. 
 v. Chicago & N. W. R. Co. 97 Minn. 473, 5 L.R.A. (N.S.) 107, 107 X. W. 548, 
 holding that where the defendant's negligence was attempted to be proved 
 partly by circumstantial evidence, it is for the jury to determine the question. 
 Proximate cause of injury. 
 
 Cited in Martin v. New York, O. & W. R. Co. 62 Hun, 184, 16 N. Y. Supp. 499, 
 holding sparks and cinders from engine firing brush on railway lands proximate 
 cause of destruction of wood-lot over a mile distant; Nary v. New York, O. & 
 W. R. Co. 29 N. Y. S. R. 633, 9 N. Y. Supp. 153, holding abandoned switch 
 engine proximate cause of collision causing death of intestate; Florida East 
 Coast R. Co. v. Welch, 53 Fla. 159, 44 So. 250, 12 A. & E. Ann. Cas. 210, 
 holding that the change of the wind during the progress of the fire set by the 
 defendant's engine did not affect the latter's liability; Babbitt v. Erie R. Co. 
 108 App. Div. 76, 95 N. Y. Supp. 429, on the sufficiency of evidence to show 
 fires were started by defendant's locomotive. 
 
 Cited in note (8 L. R. A. 85) on effect produced by intervening cause on lia- 
 bility for injuries by negligence. 
 Negligence in allowing combustible materials to gather on right of way. 
 
 Cited in Nichols v. Lehigh Valley R. Co. 61 Misc. 197, 114 N. Y. Supp. 942, 
 holding proof that company cut grass and allowed it to remain on its right 
 of way and the fire began thereon shortly after a train passed, was sufficient 
 to hold defendant liable; Smith v. Central Vermont R, Co. 80 Vt. 218, 67 Atl. 
 535, holding that where plaintiff charged negligence in allowing combustible 
 material to accumulate along the right of way, and its ignition and spreading,, 
 it was not necessary to prove any defect in the construction of the engine. 
 Questions first raised on appeal. 
 
 Cited in Drexel v. True, 20 C. C. A. 266, 36 U. S. App. 211, 74 Fed. 14, holding 
 question not relating to jurisdiction cannot be raised for first time on appeal; 
 United Press v. New York Press Co. 35 App. Div. 447, 54 N. Y. Supp. 807, holding 
 new theory of case cannot be raised for first time on appeal; Asher v. Deyoe, 
 77 Hun, 534, 28 N. Y. Supp. 890, holding objection to form of action not avail- 
 able for first time on appeal. 
 
 5 L. R. A. 594, McGORRISK v. DWYER, 78 Iowa, 279, 16 Am. St. Rep. 440, 4? 
 
 N. W. 215. 
 What is a fixture. 
 
 Cited in Thomson v. Smith, 111 Iowa, 721, 50 L. R. A. 782, 82 Am. St. Rep. 
 541, 83 N. W. 789, holding wagon scales intended to be part of realty, although 
 not actually attached to foundation built for them; Brownell v. Fuller, 60 Neb. 
 562, 83 N. W. 6G9, holding location of machinery in addition in alley makes no 
 difference as to its being trade fixture when it formed part of leased premises. 
 
 Cited in footnotes to Goddings v. Freedley, 65 L.R.A. 327, which holds main 
 belt transmitting power from an engine so annexed to building as to be real 
 estate, to machinery in mill, real estate; Murray v. Bender, 63 L.R.A. 783, 
 which holds chairs, stage fixtures, and drop curtains annexed to theater to make 
 possible the use of the building, fixtures. 
 
 Cited in notes (6 L. R. A. 249, 10 L. R. A. 723) on what constitutes fixtures; 
 (9 L. R. A. 700) on tenant's right to remove fixtures. 
 
5 L.R.A. 596] L. R. A. CASES AS AUTHORITIES. 910 
 
 5 L. R. A. 596, BENDER v. BEEN, 78 Iowa, 283, 43 N. W. 216. 
 Consideration. 
 
 Cited in Keller v. Strong, 104 Iowa, 587, 73 N. W. 1071, holding agreement to 
 accept less than amount due on sale of land, without consideration; Rauen v. 
 Prudential Ins. Co. 129 Iowa, 741, 106 N. W. 198, holding that where the 
 insurance company knew that it had no defense to the claim for insurance, a 
 release by the beneficiary for a lesser anieunt was without consideration and 
 would not defeat an action for the full amount; Cartan v. Wm. Tackaberry 
 Co. 139 Iowa, 588, 117 N. W. 953, holding that a part payment of a disputed 
 claim is not a release of the debtor, unless there are additional circumstances 
 making some consideration for the release; McKinnon v. Holden, 85 Neb. 411, 
 123 N. W. 439, on the part payment of a claim as a satisfaction thereof, 
 without other consideration. 
 
 Cited in notes (12 L.R.A. 469) on validity of contract without consideration; 
 {135 Am. St. Rep. 769) on burden of proving want of consideration. 
 Effect of seal. 
 
 Cited in note (11 L. R. A. 833) on effect of addition of seal on commercial 
 paper. 
 
 5 L. R. A. 597, NICHOLS v. DAY, 128 Pa. 428, 18 Atl. 333. 
 
 Who entitled to insurance or damages for injuries to realty. 
 
 Cited in Matthews v. American Cent. Ins. Co. 9 App. Div. 345, 41 N. Y. Supp. 
 304, holding it duty of heir or devisee to furnish proofs of loss or obtain appoint- 
 ment of temporary administrator where insured died before loss, and will was 
 contested; Callahan's Estate, 5 Lack. Legal News, 108, holding insurance money 
 from loss of property subject to deficiency and claims of devisees; O'Brien's 
 Estate, 19 Pa. Co. Ct. 468, holding interest of judgment creditors superior to 
 that of general creditors in proceeds of policy on building; Re Helbling, 32 Pitts. 
 L. J. N. S. 378, sustaining judgment creditor's claim to damages recovered by 
 devisee for injury to land from flood; De Witt v. Lehigh Valley R. Co. 21 Pa. 
 Super. Ct. 14, sustaining claim of creditors of remainderman in fund paid for 
 destruction of house in possession of life tenant. 
 
 5 L. R. A. 599, LAUGHMAN v. PIPER, 128 Pa. 1, 18 Atl. 415. 
 Trade-marks. 
 
 Cited in Columbia Mill Co. v. Alcorn, 150 U. S. 466, 37 L. ed. 1147, 14 Sup. 
 Ct. Rep. 151, holding word "Columbia" cannot be exclusively appropriated for 
 trade-mark; Koehler v. Sanders, 122 N. Y. 74, 9 L. R. A. 578, footnote p. 576, 
 25 N. E. 235, denying right to appropriate word "international" as trade-mark; 
 Elgin Butter Co. v. Elgin Creamery Co. 155 111. 136, 40 N. E. 616, holding butter 
 company cannot acquire exclusive use of name of place in connection with butter 
 and creamery; Church & D. Co. v. Russ, 99 Fed. 278, holding infringement shown 
 by use of another's trade-mark on articles of same class; Hoyt v. Hoyt, 143 Pa. 
 638, 29 W. N. C. 315, 13 L. R. A. 345, 24 Am. St. Rep. 575, 22 Atl. 755, holding 
 manufacturer cannot appropriate name not exclusively his, nor package used 
 generally in trade; Coffman v. Castner, 31 C. C. A. 59, 59 U. S. App. 35, 87 Fed. 
 462, holding geographical name cannot be appropriated by one doing business in 
 that place to exclusion of others doing business there; McVey v. Brendel, 144 Pa. 
 246, 13 L. R. A. 379, footnote, p. 379, 29 W. N. C. 5, 27 Am. St. Rep. 625, 22 
 Atl. 912, holding equity will not protect labor union in use of nontrade-mark 
 label ; Clark v. Scott, 4 Lack. Legal News, 163, restraining use of tobacco pack- 
 ages similar to those of plaintiff; Dyment v. Lewis, 144 Iowa. 514, 26 L.R.A. 
 (N.S.) 80, 123 N. W. 244, holding that one who has designated locality in 
 
H L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 603 
 
 connection with character of his business and locality has become important 
 with customers, will be protected against use of like trade name by another; 
 Re Quemahoning Valley Coal Co. 13 Pa. Dist. R. 447, on the use of a geo- 
 graphical name as a tradename; Tuckahoe Mineral Springs Co. v. Tuckahoe 
 Lithia Water Co. 18 Pa. Dist. R. 987, holding that a local descriptive name, 
 or the name of a widely diffused mineral cannot be used as a trademark; E. T. 
 Fraim Lock Co. v. Shimer, 43 Pa. Super. Ct. 231, 12 North Co. Rep. 11, on 
 words in common use as designating locality, section or origin of territory as 
 ligitimate for use as trademark; Re Standard Quemahoning Coal Co. 20 Pa. 
 Dist. R. 1010, holding that name of valley where coal is mined cannot be 
 appropriated as tradename by corporation engaged in coal business; 44 Cigar 
 Co. v. Cohen, 28 Lane. L. Rev. 235, holding that numerals employed to indicate 
 ownership may be valid trademark; Reymer & Bros. v. Huyler's, 190 Fed. 85, 
 59 Pitts. L. J. 636, to the point that tendency of courts is to restrict scope of 
 law applicable to technical trademarks and to extend scope in cases of unfair 
 competition. 
 
 Cited in footnotes to Levy v. Waitt, 25 L. R. A. 190, which refuses to enjoin 
 as infringement uninterrupted and innocent use, without question, of local 
 geographical name for five years; American Waltham Watch Co. v. United States 
 Watch Co. 43 L. R. A. 826, which authorizes injunction against deceptive use 
 of word "Waltham" by other manufacturer of watches at same place; Pillsbury- 
 Washburn Flour Mills Co. v. Eagle, 41 L. R. A. 162, which authorizes injunction 
 against use of geographical name on Hour made elsewhere from wheat of different 
 grade; Chadwick v. Covell, 6 L. R. A. 839, which holds grantee of trade-mark 
 to medicine made according to secret recipes who does not obtain exclusive right 
 to use, not entitled to enjoin use by others; Symonds v. Jones, 8 L. R. A. 570, 
 which holds transferrer of trade-mark, though containing his name or initials, 
 cannot use same. 
 
 Cited in notes (6 L. R. A. 823) on trade-name and trade-mark; (9 L. R. A. 
 145) on object of trade-mark; (9 L. R. A. 149) on right to exclusive use of 
 trade-mark; (9 L. R. A. 146) on trade-mark in geographical names; (9 L. R. A. 
 147) on when property right in trademark attaches; (26 L.R.A. (N.S.) 80, 82, 
 88, 90) on right to protection in use of geographical name; (85 Am. St. Rep. 
 108) on what words or phrases may constitute a valid trademark; (45 L. ed. 
 U. S. 366, 367) on trademark in geographical name. 
 Sale or assignment. 
 
 Cited in Kronthal Waters v. Becker, 137 Fed. 652, holding that a tradename 
 which was not good as a technical trademark, passed under a sale of assets 
 and good-will of a business. 
 
 Cited in note (1 L.R.A.(N.S.) 706, 717, 722) on sale of trademark. 
 Payment of royalty. 
 
 Cited in Miller v. Billington, 6 Pa. Dist. R. 336, sustaining right to enforce 
 contract reserving royalty, although one certificate void. 
 
 5 L. R. A. 603, WILLS v. MANUFACTURERS NATURAL GAS CO. 130 Pa. 222, 
 
 18 Atl. 721. 
 To whom provision for forfeiture on default available. 
 
 Cited in Su?quehanna Mut. F. Ins. Co. v. Leavy, 136 Pa. 514, 20 Atl. 502. 
 holding provision avoiding policy for nonpayment of premium available to in- 
 surer only. 
 Leases. 
 
 Followed without discussion in Gibson v. Oliver, 158 Pa. 279, 27 Atl. 961. 
 
5 L.R.A. 603] L. R. A. CASES AS AUTHORITIES. 912 
 
 Cited in Westmoreland & C. Natural Gas Co. v. Dewitt, 130 Pa. 253, 5 L. R. A. 
 734, 18 Atl. 724, holding clause providing for forfeiture of lease upon lessee's 
 default not self-operating; Edmonds v. Mounsey, 15 Ind. App. 403, 44 N. E. 196, 
 holding provision avoiding lease on lessee's default does not benefit lessee unless 
 lessor so elects; Island Coal Co. v. Combs, 152 Ind. 390, 53 N. E. 452, holding 
 provision for forfeiture for failure to begin operations under mining lease, at 
 lessor's option, avoids lessee's rights; Evans v. Consumers' Gas Trust Co. (Ind.) 
 31 L. R. A. 676, 29 N. E. 398; Roberts v. Bettman, 45 W. Va. 147, 30 S. E. 95; 
 Thomas v. Hukill, 34 W. Va. 397, 12 S. E. 522, holding lease providing for 
 forfeiture on lessee's default terminable only at lessor's option; Bartley v. 
 Phillips, 165 Pa. 329, 36 W. N. C. 21, 30 Atl. 842, Subsequent Appeal in 179 
 Pa. 182, 36 Atl. 217;Cochran v. Pew, 159 Pa. 187, 33 W. N. C. 548, 28 Atl. 219; 
 Sanders v. Sharp, 153 Pa. 567, 31 W. N. C. 377, 25 Atl. 524; Woodland Oil Co. 
 v. Crawford, 55 Ohio St. 178, 34 L. R. A. 67, 44 N. E. 1093; Jones v. Western 
 Pennsylvania Natural Gas Co. 146 Pa. 211, 29 W. N. C. 268, 23 Atl. 386; 
 Leatherman v. Oliver, 151 Pa. 650, 31 W. N. C. 206, 25 Atl. 309; Miller v. 
 Logan, 31 Pittsb. L. J. N. S. 217, holding that provision avoiding oil lease for 
 failure to drill is for lessor's benefit; Ogden v. Hatry, 145 Pa. 642, 23 Atl. 334, 
 holding provision avoiding lease on lessee's default, "extinguishing rights of par- 
 ties as if agreement had never been made," for lessor's benefit; Morris v. De Wolf, 
 11 Tex. Civ. App. 701, 33 S. W. 556; Brown v. Cairns, 63 Kan. 587, 66 Pac. 639; 
 Agerter v. Vandergrift, 138 Pa. 593, 27 W. N. C. 238, 21 Atl. 202; Fennell v. 
 Guffey, 139 Pa. 344, 20 Atl. 1048; Ray v. Western Pennsylvania Natural Gas 
 Co. 138 Pa. 587, 12 L. R. A. 291, 27 W. N. C. 235, 21 Am. St. Rep. 922, 20 Atl. 
 1065, holding lessee cannot set up default working forfeiture, as defense to 
 action on lease; Bettman v. Shadle, 22 Ind. App. 548, 53 N. E. 662, holding pro- 
 vision that lessee pay $2 per day until well commenced, or surrender lease, 
 renders lessee liable for penalties accruing prior to surrender; Glasgow v. Char- 
 tiers Oil Co. 31 W. N. C. 208, denying liability of lessee of oil lands leased on 
 condition, and not under covenant; Aderhold v. Oil Well Supply Co. 33 W. N. C. 
 338, holding purchaser of oil lease at sheriff's sale liable for breach of condition; 
 Verdolite Co. v. Richards, 7 Northampton Co. Rep. 119, holding equity will not 
 declare forfeiture for nonpayment of rent, without notice, after lessor's acquies- 
 cence in other violations; McCarty v. Mellon, 5 Pa. Dist. R. 429, refusing to 
 declare forfeiture of oil lease after lessor suffered lessee to continue; Wheeling 
 v. Phillips, 10 Pa. Super. Ct. 637, denying landlord's right to sue for back rent and 
 also declare forfeiture; English v. Yates, 205 Pa. 108, 54 Atl. 503. holding that 
 lessee cannot by own default end lease and discharge surety; Henne v. South 
 Penn Oil Co. 52 W. Va. 200, 43 S. E. 147, holding lessor's releasing oil lands 
 subject to first lease not operate as forfeiture; Johnson v. Lehigh Valley Traction 
 Co. 130 Fed. 942, denying forfeiture of railroad lease for nonpayment of divi- 
 dends; Perry v. Acme Oil Co. 44 Ind. App. 212, 88 N. E. 859, holding that 
 under provision in oil lease that well will be sunk within certain time or 
 failing therein to pay certain rentals, and failing to pay, lease to determine, 
 lessor may elect to determine lease or sue for breach of covenant; Wilmore 
 Coal Co. v. Brown, 147 Fed. 938, holding a condition in mining lease that same 
 shall be forfeited if a railroad is not built to a certain place within five years, 
 is for the benefit of the lessors, and does not pass by assignment to others; 
 Steele v. Maher, 38 Pa. Super. Ct. 194, holding clause providing for forfeiture 
 in case of breach of covenants is for the benefit of the lessor and is enforceable 
 at his -option; Glasgow v. Griffith, 22 Pittsb. L. J. N. S. 182, holding that 
 lessor cannot recover monthly payments under lease providing for its termina- 
 tion unless well is completed before certain date or lessee pays monthly sum 
 
913 L. R, A. CASES AS AUTHORITIES. [5 L.R.A. 606 
 
 until completion; Lawson v. Williamson Coal & Coke Co. 61 W. Va. 675, 57 
 S. E. 258, holding provision in lease that upon failure of lessee to comply with 
 the provisions of the lease that the same shall be forfeited, is for the benefit 
 of the lessor, and does not make it optional with the lessee whether he will 
 accept the lease. 
 
 Cited in notes (31 L.R.A. 675) on forfeiture of oil and gas lease; (26 Am. 
 St. Rep. 911, 913) on forfeiture of lease for breach of condition by lessee; (15 
 Eng. Rul. Gas. 567) on lessor's option to avoid lease on lessee's omission or 
 commission of acts stipulated for or against. 
 
 Distinguished in Ramsey v. White, 21 Pittsb. L. J. N. S. 426, holding sur- 
 render of lease after commencement of action for monthly payments, sufficient 
 defense, where lease provides that lessee may surrender lease at any time and 
 that payments made shall be full stipulated damages for nonfulfillment of 
 lease; Vanvoorhis v. Oliver, 22 Pittsb. L. J. N. S. 114, holding that lessee may 
 avail himself of elective right in lease to complete well within certain time or 
 pay annual rental until completion. 
 
 Insurance assessments. 
 
 Cited in Dettra v. Murray, 18 Pa. Co. Ct. 11, 5 Pa. Dist. R. 202, holding non- 
 payment of insurance assessment will not alone work forfeiture. 
 
 Land contracts. 
 
 Cited in Chambers v. Anderson, 51 Kan. 392, 32 Pac. 1098, holding provision 
 annulling land contract on default in payments, for vendor's benefit. 
 
 Distinguished in Vito v. Birkel, 209 Pa. 209, 58 Atl. 127, holding that where 
 time was the essence of the contract a condition in the contract of sale for 
 forfeiture for failure to pay installment was self-operating. 
 
 Construction of railroads. 
 
 Cited in Scranton R. Co. v. Scranton, 5 Lack. Legal News, 258, sustaining in- 
 junction against construction of railway after forfeiture; Burke v. Carbondale 
 Traction Co. 15 Pa. Co. Ct. 160, 3 Pa. Dist. R. 751, holding ordinance necessary 
 to declare forfeiture of right to build railway granted by ordinance. 
 Lease; rights under, where no time limit set. 
 
 Followed in Sheasley v. Condrin, 10 Pa. Dist. R. 57, holding a provision in 
 a lease for recovering rent in arrears, at time of repossessing under forfeiture 
 clause, will be enforced. 
 
 Cited in Edwards v. Tola Gas Co. 65 Kan. 366, 69 Pac. 350, denying forfeiture 
 of gas lease when time not essence of contract. 
 
 Distinguished in Harlan v. Logansport Natural Gas Co. 133 Ind. 330, 32 N. E. 
 930, holding no rights accrue to lessor of right of way for pipe line until occu- 
 pation, lease fixing no time limit. 
 
 5 L. R. A. 606, SHELBY v. CLAGETT, 46 Ohio St. 549, 22 N. E. 407. 
 Evidence of nonprofessional vritness. 
 
 Cited in Baltimore & O. R. Co. v. Rambo, 8 C. C. A. 8, 16 U. S. App. 277, 
 59 Fed. 77, and Lake Shore & M. S. R. Co. v. Gaffney, 9 Ohio C. C. 35, holding 
 nonprofessional witness may testify to observation of injured person's suffering; 
 Clow v. Smith, 85 Neb. 670, 124 N. W. 140, holding that the wife of the 
 defendant in a bastardy proceeding may testify that the plaintiff was at the 
 time she became pregnant intimate with another man, not the defendant, and 
 her opinion was that this man was the father of the plaintiffs child; Horn 
 v. State, 12 Wyo. 148, 73 Pac. 705, holding that a nonexpert witness may 
 testify as to the manner in which a conversation was carried on, and his 
 opinion as to the state of mind of the parties to it; Baltimore & 0. Ry. v. 
 L.R.A. Au. Vol. I. 58. 
 
5 L.R.A. 606] L. R. A. CASES AS AUTHORITIES. 914 
 
 Stoltz, 18 Ohio C. C. 95, 9 Ohio C. D. 640, holding admissible opinion of non- 
 expert witness who saw train, as to speed at which it was moving. 
 
 Cited in note (30 Am. St. Rep. 38) on admissibility of nonexpert opinions. 
 \ ilm is.i i.i 1 i t > of evidence as to character. 
 
 Cited in Smith v. Johnson, 3 Ohio X. P. N. S. 10, 16 Ohio S. & C. P. Dec. 
 44, holding inadmissible in personal injury action evidence of plaintiff's "irregu- 
 lar habits" for purpose of showing that ill health was not-wholly due to injury; 
 Smith v. Johnson, 3 Ohio N. P. N. S. 11, 16 Ohio S. & C. P. Dec. 45, holding 
 inadmissible in civil action evidence of bad moral character of witness, on 
 question of his credibility. 
 Municipal liability for defective highway. 
 
 Cited in Birmingham v. Lewis, 92 Ala. 356, 9 So. 243, holding lack of funds 
 no defense where other means not exhausted; Heath v. Manson, 147 Cal. 700, 
 82 Pac. 331, holding lack of funds no defense to action for injuries through 
 defective sidew r alk, where provision was made for providing funds. 
 
 Cited in notes (10 L. R. A. 736) on duty of municipality to keep streets and 
 sidewalks in safe condition, and liability for neglect to do so; (10 L. R. A. 738) 
 on notice of defect in sidewalk; (10 L. R. A. 740) on proof of unsafe condition 
 of sidewalk; (20 L.R.A. ( N.S. ) 530, 719, 723) on liability of municipality for 
 defects or obstructions in streets. 
 Notice. 
 
 Cited in Nothdurft v. Lincoln, 66 Neb. 439, 96 N. W. 165, holding that the 
 fact of notice to the city of a defect in a sidewalk must be proved and cannot 
 be left to conjecture; Scrogin v. Cincinnati, 13 Ohio C. C. N. S. 294, 3 Ohio 
 C. C. 649, holding that notice to city of bad condition of sidewalk due to 
 sliding of adjacent hillside is not notice as matter of law of particular defect 
 causing injury. 
 
 Cited in notes (10 L.R.A. 738) on notice of defect in sidewalk; (30 Am. St. 
 Rep. 525) on notice of defects in streets. 
 
 5 L. R. A. 609, HORRIGAN v. CLARKSBURG, 150 Mass. 218, 22 N. E. 897. 
 Contributory negligence. 
 
 Cited in note (10 L. R. A. 477) on contributory negligence precluding recovery 
 for injury in highway. 
 Liability of municipality for defects in streets. 
 
 Cited in notes (13 L.R.A. (N.S.) 1255; 20 L.R.A. (N.S.) 735, 741) on liability 
 of municipality for defects or obstructions in streets. 
 
 5 L. R. A. 611, NORFOLK SOUTHERN R. CO. v. BARNES, 104 N. C. 25, 10 
 
 S. E. 83. 
 Passing of title by delivery to carrier. 
 
 Cited in State v. Groves, 121 N. C. 634, 28 S. E. 493, holding delivery of goods 
 for shipment to vendee completes sale; United States v. Orene Parker Co. 121 
 Fed. 599,' and United States v. Adams Exp. Co. 119 Fed. 244, holding that title 
 to liquor passed to consignee on delivery to carrier who collected price; Jones 
 v. United States, 24 L.R.A. (N.S.) 146, 95 C. C. A. 213, 170 Fed. 4, on the 
 passing of title by delivery to carrier, so as to fix place of sale; Asheboro 
 Wheelbarrow & Mfg. Co. v. Southern R. Co. 149 N. C. 263, 62 S. E. 1091, 
 holding that where goods were shipped, consigned to seller, marked to notify 
 the purchaser, title did not pass; State v. J. W. Kelly & Co. 123 Tenn. 569. 
 36 L.R.A. (N.S.) 175, 133 S. W. 1011, holding that title to goods passes upon 
 delivery to carrier where goods are ordered through mail. 
 
15 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 612 
 
 Cited in notes (22 L.R.A. 425) on passing of title to property by delivery 
 to carrier for transportation to consignee or vendee; (23 Eng. Rul. Gas. 385) 
 on retention of title after shipment C. 0. D. 
 
 Distinguished in State v. Caldwell, 127 N. C. 526, 37 S. E. 138, holding goods 
 consigned to vendor remain his property, until actual delivery to vendee by 
 vendor or his agent. 
 L.OSS of lien by parting with posaeaaion. 
 
 Cited in Lembeck v. Jarvis Termirfal Cold Storage Co. 68 N. J. Eq. 498, 59 
 Atl. 360, holding that as against third persons without notice, a lien of a 
 carrier for freight was lost by delivery to the consignee though the latter agreed 
 to hold them until the freight was paid. 
 
 Cited in notes (5 Eng. Rul. Cas. 285; 16 Eng. Rul. Cas. 145) on loss of 
 lien by parting with possession. 
 
 5 L. R. A. 612, BLOOD BALM CO. v. COOPER, 83 Ga. 457, 20 Am. St. Rep. 324, 
 
 10 S. E. 118. 
 Liability for sale of dangerous article. 
 
 Cited in Peters v. Peters v. Johnson, 50 W. Va. 650, 57 L. R. A. 430, 88 Am. 
 St. Rep. 909, 41 S. E. 190, holding seller of poisonous drug by mistake liable 
 to third person taking it for medicine; Woodward v. Miller, 119 Ga. 621, 64 L.R.A. 
 935, 46 S. E. 847, holding manufacturer of buggy knowing it to be unsafe, liable 
 to one injured; Woodward v. Miller, 119 Ga. 621, 64 L.R.A. 932, 100 Am. St. 
 Rep. 188, 46 S. E. 847, holding manufacturer liable for injuries to person for 
 whom buggy was intended, where the former sold to a municipality a buggy 
 which it knew to be defective but had covered the defect with paint; Darks 
 v. Scudder-Gale Grocer Co. 146 Mo. App. 265, 130 S. W. 430, holding dealer 
 liable to one injured by poison sold by him for harmless compound, provided 
 injury was direct and probable consequence of dealer's negligence; Tomlinson 
 v. Armour & Co. 75 X. J. L. 760, 19 L,R.A.(N.S.) 937, 70 Atl. 314, holding a 
 manufacturer liable for placing in cans for sale, diseased meats, to persons 
 injured by eating same though purchased from a retailer; Hasbrouck v. Armour 
 
 6 Co. 139 Wis. 364, 23 L.R.A. (N.S.) 879, 121 N. W. 157, holding manufacturer 
 of soap was not liable for injuries to a buyer, through the dropping of a needle 
 into the soap in the course of manufacture; Watson v. Augusta Brewing Co. 
 124 Ga. 123, 1 L.R_A.(N.S.) 1180, 110 Am. St. Rep. 157, 52 S. E. 152, holding 
 manufacturer liable for injuries through swallowing pieces of glass, while drink- 
 ing beverage, bottled by such manufacturer; Weiser v. Holzman, 33 Wash. 92, 
 99 Am. St. Rep. 932, 73 Pac. 797, holding manufacturer or dealer is liable for 
 injuries through explosion of champagne cider, in a bottle which is sufficient 
 to stand the pressure of the charge within; O'Neill v. James, 138 Mich. 573, 
 68 L.R.A. 346, 110 Am. St. Rep. 321, 101 N. W. 828, 5 A. & E. Ann. Cas. 177, 
 on the same point. 
 
 Cited in footnote to Skinn v. Reutter, 63 L.R.A. 743, which holds seller of 
 diseased hogs liable for injury to life or property resulting therefrom. 
 
 Cited in notes (13 L.R.A. (N.S.) 647) on liability of druggist for injury to 
 stranger from drug or poison sold; (29 L.R.A. (N.S.) 902) on duty of druggist 
 or apothecary in sale or compounding of drugs or medicines; (55 Am. St. Rep. 
 257) on liability of apothecaries and druggists; (100 Am. St. Rep. 198) on 
 right to recover for negligence in absence of privity. 
 
 Distinguished in Salmon v. Libby, McNeil & Libby, 114 111. App. 265, holding 
 where the nature of the foodstuff is not inherently dangerous, and there is no 
 fraud, concealment or implied invitation, and where there is no privity of con- 
 tract between the parties, the dealer is not liable. 
 
5 L.R.A. 614} L. R. A. CASES AS AUTHORITIES. 916 
 
 5 L. R. A. 614, CARSONS v. URY, 39 Fed. 777. 
 Protection of union labels. 
 
 Cited in State v. Bishop, 128 Mo. 381, 29 L. R. A. 205, 49 Am. St. Rep. 569 r 
 31 S. W. 9, holding labor union may be protected by appropriate legislation in 
 use of label. 
 
 Cited in notes (6 L. R. A. 823) on trade-name and trade-mark; (29 L. R. A. 
 200) on protection of trade union labels as trade-marks; (39 L.R.A. (N.S.) 1192, 
 1196, 1197, 1198, 1199, on law as to union labels. 
 
 Distinguished in State v. Berlinsheimer, 62 Mo. App. 174, holding union label 
 not within purview of statute protecting trade-marks. 
 By courts of equity- 
 
 Cited in Hennessy v. Hermann, 89 Fed. 670, holding selling of imitation labels 
 enjoinable; Tracy v. Banker, 170 Mass. 271, 39 L. R. A. 510, 49 N. E. 308, holding 
 illegality of incidental purpose does not deprive trade union of protection in 
 use of label; State v. Hagen, 6 Ind. App. 170, 33 N. E. 223, and Hetterman Bros, 
 v. Powers, 102 Ky. 142, 39 L. R. A. 213, 80 Am. St. Rep. 348, 43 S. W. 180, hold- 
 ing label stating cigars "are not product of inferior, ratshop, coolie, prison, or 
 filthy tenement-house workmanship" not attack on others. 
 
 Distinguished in Weener v. Brayton, 152 Mass. 106, 8 L. R. A. 644, 25 N. E. 
 46, holding individual members or officers of union cannot enjoin fraudulent use 
 of label. 
 Unlawful competition by imitation. 
 
 Cited in Societe Anonyme v. Western Distilling Co. 43 Fed. 417, holding imita- 
 tion of packages and labels of another manufacturer enjoinable; C. F. Simmons 
 Medicine Co. v. Mansfield Drug Co. 93 Tenn. 122, 23 S. W. 165, holding imita- 
 tion of medicine packages, deceiving ordinary observer, enjoinable. 
 
 Cited in footnote to American Washboard Co. v. Saginaw Mfg. Co. 50 L. R. A. 
 609, which holds false description of zinc washboards as "aluminum" not unlawful 
 competition. 
 
 Distinguished in Gessler v. Grieb, 80 Wis. 28, 27 Am. St. Rep. 20, 48 N. W. 
 1098, holding use of packages not substantially similar not enjoinable; Lawlor 
 v. Merritt, 78 Conn. 635, 63 Atl. 639, holding that a label issued by an unincor- 
 porated association of dealers, which did not make the article themselves, but 
 issued the labels to manufacturers who employed union laborers, would not 
 be protected. 
 
 5 L. R. A. 617, TIGHE v. MORRISON, 116 N. Y. 263, 22 N. E. 164. 
 
 Statute of frauds; agreement to answer for another's default. 
 
 Cited in Barth v. Graf, 101 Wis. 39, 76 X. W. 1100, holding principal's parol 
 agreement to indemnify sureties on bond valid; Rose v. Wollenberg, 31 Or. 281, 
 39 L. R. A. 383, 65 Am. St. Rep. 826, 44 Pac. 382, holding parol agreement as 
 to relative liability of cosureties valid; Warren v. Abbett, 65 N. J. L. 101, 46 Atl. 
 575, holding parol promise to indemnify indorser of third person's note valid; 
 Jones v. Bacon, 145 N. Y. 449, 40 N. E. 216, Affirming 72 Hun, 509, 25 N. Y. 
 Supp. 212, holding oral promise to indemnify guarantor for third person valid; 
 Resseter v. W'aterman, 151 111. 176, 37 X. E. 875, Reversing 45 111. App. 162, 
 holding parol promise to one signing note as surety to promisor to procure 
 security from maker valid; Merchant v. O'Rourke, 111 Iowa, 356, 82 N. W. 759, 
 holding parol promise to save purchaser from liability on stock valid: Williams 
 v. Auten, 62 Neb. 838, 87 N". W. 1061, holding parol guaranty of another's debt 
 void: Wilkie v. Marshall, 77 N. J. L. 275, 72 Atl. 30, holding a promise by 
 one to pay the debt incurred by another in the course of a specific litigation 
 
*!7 L- R. A. CASES AS AUTHORITIES. [5 L.R.A. 620 
 
 if it were unsuccessful, is not within the statute; Wattenbarger v. Hodges, 38 
 Tex. Civ. App. 332, 85 S. W. 1013, holding where the purchaser was to forfeit 
 a certain amount for failure to complete contract to purchase lands, and another 
 in consideration of an extension of time to the purchaser, agrees to forfeit a 
 greater amount, the agreement is not within the statute. 
 
 Cited in footnote to Dillaby v. Wilcox, 13 L. R. A. 643, which holds adminis- 
 trator's verbal promise to pay taxes assessed against mortgagor void. 
 
 Distinguished in Hartley v. Sandford, 66 N. J. L. 631, 55 L. R. A. 207, foot- 
 note, p. 206, 50 Atl. 454, which holds void, father's oral promise to reimburse 
 surety for son if latter fails to pay debt; Barnett v. Wing, 62 Hun, 129, 16 N. Y. 
 Supp. 567, holding parol promise to indemnify indorser for third person void. 
 Liability of coadmlnistrator on bond. 
 
 Distinguished in Nanz v. Oakley, 120 N. Y. 88, 9 L. R. A. 226, 24 N. E. 306, 
 holding joint administrator, not consenting to or joining in another's mismanage- 
 ment, not liable. 
 Adoption of ancestor's debt by heir. 
 
 Cited in Murdock v. Robinson, 71 Hun, 324, 25 N. Y. Supp. 120, holding pay- 
 ment on mortgage by heir prevents statute of limitations running in favor of 
 grantee of part of premises. 
 
 5 L. R. A. 620, HILL v. HOOLE, 116 N. Y. 299, 22 N. E. 547. 
 
 Followed without discussion in Goodwin v. Thompson, 88 Hun, 600, 34 N. Y. 
 Supp. 769. 
 Rights of assignee of chose In action. 
 
 Cited in Rapps v. Gottlieb, 67 Hun, 116, 22 N. Y. Supp. 52; Sparling v. Wells, 
 24 App. Div. 587, 49 N. Y. Supp. 321; Parmerter v. Colrick, 20 Misc. 205, 45 
 N. Y. Supp. 748, holding assignee of bond and mortgage takes security subject 
 to all defenses existing between original parties; Dodge v. Manning, 19 App. 
 Div. 34, 46 N. Y. Supp. 1049, holding assignee of mortgage takes subject, not 
 only to equities between original parties, but also to those in favor of third 
 parties against assignor; Griswold v. Caldwell, 65 App. Div. 375, 73 N. Y. 
 Supp. 2, holding rule that assignee of mortgage takes subject to equities existing 
 in favor of mortgagor is based on principle of estoppel ; Wood v. Travis, 24 
 Misc. 594, 54 N. Y. Supp. 60, holding bona fide purchaser of mortgage takes 
 same subject to defense of want of consideration; Fitch v. McDowell, 80 Hun, 
 211, 30 N. Y. Supp. 31, holding note given mortgagee as partial payment upon 
 mortgage, valid where mortgagor had no notice of the assignment, and the note 
 was not returned; Baird v. Baird, 145 N. Y. 661, 28 L. R. A. 377, 40 N. E. 222, 
 holding mortgage given by son to father as security against his squandering 
 land conveyed to him not enforceable in hands of father's executrix; Flaglcr v. 
 Malloy, 30 N. Y. S. R. 613, 9 N. Y. Supp. 573, holding lien of judgment in hands 
 of assignee inferior to mortgage subsequently executed correcting prior mort- 
 gage which antedated judgment; French v. Stevenson, 32 N. Y. S. R. 768, 10 
 N. Y. Supp. 386, holding assignee of judgment bound by agreement of assignor 
 to satisfy same upon consideration received; Schlitz v. Koch, 138 App. Div. 
 536, 123 N. Y. Supp. 302, holding that assignee of mortgage takes subject to 
 legal and equitable defenses including want of consideration. 
 Defense of no consideration as to mortgage given to defrand creditors. 
 
 Cited in Sparling v. Wells, 24 App. Div. 587, 49 N. Y. Supp. 321, holding proof 
 of declarations that mortgage was without consideration, admissible, though 
 tending to show fraudulent intent. 
 
5 L.R.A. 620] L. R. A. CASES AS AUTHORITIES. 918 
 
 Declaration* of mortmvuoe as to validity of m 
 
 Cited in Sparling v. Wells, 24 App. Div. 588, 49 N. Y. Supp. 321, holding 
 assignee of mortgage seeking to exclude declarations of former holder of mortgage 
 from evidence on foreclosure must show that he is bona fide holder for value. 
 I'arol evidence to vary terms of inortgpagre. 
 
 Cited in Snyder v. Ash, 30 App. Div. 185, 51 N. Y. Supp. 772 (dissenting 
 opinion), majority holding mortgage cannot be contradicted by parol evidence 
 that mortgagee represented instrument did not cover wife's interest in property. 
 Estoppel to deny validity of deed or mortgage. 
 
 Cited in Merkle v. Beidleman, 30 App. Div. 21, 51 N. Y. Supp. 916, and Spar- 
 ling v. Wells, 24 App. Div. 586, 49 N. Y. Supp. 321, holding representation to 
 purchaser that mortgage is valid estops mortgagor from setting up contrary; 
 Marden v. Dorthy, 160 N. Y. 68, 46 L. R. A. 704, 54 N. E. 726 (dissenting opin- 
 ion), majority holding where signature to deed fraudulently procured, mortgage 
 given by grantee invalid in hands of one accepting same on faith of record of 
 deed; Merchants' Bank v. Weill, 163 N. Y. 490, 79 Am. St. Rep. 605, 57 N. E. 
 749, Affirming 29 App. Div. 114, 52 N. Y. Supp. 37, holding bona fide assignee 
 of mortgage for purchase money not affected by parol agreement between vendor 
 and vendee that sale may be rescinded in two years. 
 
 5 L. R. A. 623, WAHL v. BARNUM, 116 N. Y. 87, 22 N. E. 280. 
 Review of order denying neve trial. 
 
 Cited in Townsend v. Van Buskirk, 162 N. Y. 267, 56 N. E. 837, holding order 
 of appellate division for new trial on appeal from interlocutory judgment not 
 reviewable in Court of Appeals, as appeal from order for new trial upon motion 
 made upon exceptions, where order did not dispose of exceptions. 
 Contracts within statute of frauds. 
 
 Cited in McGirr v. Campbell, 71 App. Div. 86, 75 N. Y. Supp. 571, holding 
 agreement not again to enter into or carry on business sold, for twenty-seven 
 months, within statute of frauds; Butler v. Dinan, 47 N. Y. S. R. 363, 19 
 N. Y. Supp. 950, holding verbal partnership agreement for term of ten years 
 void; Sanger v. French, 157 N. Y. 234, 51 N. E. 979, holding that partner in 
 going concern established under verbal agreement of partnership has action for 
 equitable accounting, without dissolution; Baker v. Codding, 44 N. Y. S. R. 787, 
 18 N. Y. Supp. 159, holding part performance will not take contract out of the 
 statute; Fanger v. Caspary, 87 App. Div. 419, 84 N. Y. Supp. 410, holding oral 
 contract made December 30, 1900, to work from January 8, 1901, to following 
 January, void; Rauch v. Donovan, 126 App. Div. 57, 110 N. Y. Supp. 690, 
 holding an agreement to form a partnership with respect to a specific piece 
 of land, title to be taken in name of one, is not within the statute. 
 Finality of account stated. 
 
 Cited in Hale v. Hale, 14 S. D. 646, 86 N. W. 650, holding that account stated 
 by partners will not be opened for investigation in absence of mistake, fraud, or 
 duress, even in action for accounting; Abe Stein Co. v. Robertson, 38 App. Div. 
 313, 57 N. Y. Supp. 46, holding decision of broker as to quality of goods sold, 
 stipulated as final in contract of sale, final in absence of fraud, mistake, or 
 collusion; O'Brien v. New York, 25 Misc. 221, 55 N. Y. Supp. 50, holding court 
 without jurisdiction to disturb compromise to discharge municipality's moral 
 obligation and avert apprehended recovery in far greater amount; General Elec- 
 tric Co. v. Nassau Electric R. Co. 36 App. Div. 513, 55 N. Y. Supp. 858, holding 
 defendant not relieved from compromise of infringement suit, recognizing va- 
 lidity of plaintiff's patent subsequently declared invalid; Zoebisch v. Von Minden. 
 
919 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 630 
 
 120 X. Y. 417, 24 N. E. 795, and Dovale v. Ackerman, 11 Misc. 248, 33 N. Y. 
 Supp. 13, holding right of recovery upon substituted agreement not dependent 
 upon validity of original claim ; St. Nicholas Skating & I. Co. v. Cody, 26 Misc. 
 767, 56 N. Y. Supp. 1063, holding compromise agreement to pay expense of 
 repairs precludes inquiry into liability for injury; Sears v. Grand Lodge, A; O. 
 V. W. 20 Misc. 55, 45 N. Y. Supp. 331, holding insurer liable upon absolute 
 agreement to pay part of certificate of member who had disappeared nine years 
 before, although he subsequently reappears; Sioux City Stock Yards Co. v. 
 Sioux City Packing Co. 110 Iowa, 408, 81 N. W. 712, holding lessee of premises 
 entering into contract for occupation thereof with third party purchasing them 
 not liable upon original lease upon vacating; Barlow v. Platt, 133 App. Div. 
 367, 117 N. Y. Supp. 235, holding that accounts settled between the parties 
 will not be opened except for fraud, duress, or mistake, and evidence must be 
 strong and conclusive. 
 Mutual promises as consideration. 
 
 Cited in West v. Bannigan, 51 App. Div. 331, 64 N. Y. Supp. 884; Housatonic 
 Xat. Bank v. Foster, 85 Hun, 377, 32 N. Y. Supp. 1031 ; Struthers v. Smith, 85 
 Hun, 262, 32 N. Y. Supp. 905, holding discharge of doubtful claim a good con- 
 sideration for third party's promise to pay therefor; Lawrence v. Church, 35 
 N. Y. S. R. 957, 12 N. Y. Supp. 420, holding mutual promises constitute good 
 consideration; Becker v. Fischer, 13 App. Div. 559, 77 N. Y. S. R. 687, 43 N. Y. 
 Supp. 685, holding son's indebtedness under partnership agreement sufficient con- 
 sideration for father's note delivered in liquidation; Chicago, M. & St. P. R. Co. v. 
 Clark, 35 C. C. A. 130. 92 Fed. 978, holding payment of unquestioned liquidated 
 debt presently due not sufficient consideration for release of other unliquidated 
 claims; McGlynn v. Scott, 4 X. D. 24, 58 X. W. 460, holding surrender of imag- 
 inary lien, when in fact there is no lien, no consideration for note. 
 
 Cited in notes (15 L.R.A. 439; 25 L.R.A.(N.S.) 278) as to essentials of a 
 compromise. 
 Inconsistent finding's. 
 
 Cited in Cohoes v. Delaware & H. Canal Co. 134 N. Y. 405, 31 N. E. 887, hold- 
 ing court compelled to accept finding most favorable to appellant, where 
 trial judge found both that there had and had not been highway by dedication 
 at locus in quo; Walrath v. Abbott, 85 Hun, 183, 32 X. Y. Supp. 596, holding un- 
 successful party entitled to benefit of finding at his request, inconsistent with 
 other findings; Traders' Nat. Bank v. Parker, 130 X. Y. 417, 29 X. E. 1094, hold- 
 ing that findings of fact most favorable to appellant will control where they are 
 so inconsistent as not to be reconcilable: Xickell v. Tracy, 184 N. Y. 390, 77 
 X. E. 391, holding that where findings of fact are contradictory and inconsistent, 
 the defeated party is entitled to the benefit of those most favorable to himself. 
 
 5 L. R. A. 630, JOHNSTON v. TRASK, 116 N. Y. 136, 15 Am. St. Rep. 394, 22 
 
 X. E. 377. 
 Oral promise to purchase. 
 
 Cited in Mulford v. Torrey Exploration Co. 45 Colo. 90, 100 Pac. 596, holding 
 a contract of sale of personal property to redeliver upon the repayment of the 
 purchase price within a certain time, is not within the statute of frauds. 
 
 Distinguished in Chamberlain v. Jones, 32 App. Div. 239, 52 N. Y. Supp. 998, 
 holding oral promise by one recommending purchase from third party, to pur- 
 chase bonds at promisee's election, not enforceable; Morse v. Douglass, 112 App. 
 Div. S02. 99 X. Y. Supp. 392, holding that where the purchaser of over fifty 
 dollars' worth of stock deals with an agent of a disclosed principal, and the 
 
5 L.R.A. 630} L. R. A. CASES AS AUTHORITIES. 920 
 
 agent agrees to repurchase the stock if the purchaser becomes dissatisfied the 
 latter agreement is within the statute. 
 Scope of partner's authority. 
 
 Cited in Rumsey v. Briggs, 139 N. Y. 330, 34 N. E. 929, holding firm liable on 
 partner's individual note given for land purchased for partnership purposes. 
 Exercise of option to terminate contract. 
 
 Cited in Fuller v. Downing, 120 App. Div. 38, 104 N. Y. Supp. 991, holding 
 that the right to terminate a contract for services, under option in it, depends 
 on the employer's good faith in intending to comply with terms of the option. 
 Laches in exercise of option. 
 
 Cited in Lang v. Severance, 28 N. Y. S. R. 534, 8 N. Y. Supp. 238, and Crandall 
 v. Haskins, 10 N. Y. S. R. 108, holding option to return goods purchased must 
 be exercised within reasonable time; Catlin v. Green, 120 N. Y. 445, 24 N. E. 
 941, Affirming 5 N. Y. S. R. 868, holding nine years' delay to exercise option to 
 exchange stock for bonds, laches. 
 Entire contracts. 
 
 Cited in note (59 Am. St. Rep. 278, 279) on entire contracts. 
 
 5 L. R. A. 632, HUGHES v. JONES, 116 N. Y. 67, 15 Am. St. Rep. 386, 22 N. 
 E. 446. 
 
 Followed without discussion in Stafford v. Morning Journal Asso. 68 Hun, 471, 
 22 N. Y. Supp. 1008. 
 Validity of contracts or deeds of lunatic. 
 
 Cited in Carter v. Beck with, 128 N. Y. 316, 28 N. E. 582, holding contract of 
 one adjudged a lunatic, absolutely void; Re Lapham, 19 Misc. 75, 44 N. Y. Supp. 
 90, holding contract of lunatic before inquisition, but within period covered by 
 findings of jury, not absolutely void; Ramsdell v. Ramsdell, 128 Mich. 116, 87 
 N. W. 81, holding deed made by insane person in lucid interval valid; Blinn v. 
 Schwarz, 177 N. Y. 260, 69 N. E. 542, sustaining lunatic's deed ratified after re- 
 gaining sanity; O'Reilly v. Sweeney, 54 Misc. 409, 105 N. Y. Supp. 1033, holding 
 promise to marry by one who has been adjudged insane, is invalid; Re Lapham, 
 2 Gibbons, Sur. Rep. 184, to the point that person adjudicated a lunatic cannot 
 bind himself by contract. 
 
 Cited in notes (19 L.R.A. 493) on validity of deed made by insane person; 
 (42 Am. St. Rep. 753; 71 Am. St. Rep. 426; 6 Eng. Rul. Gas. 76) on validity 
 of contract by insane person; (16 Eng. Rul. Cas. 739, 741) on lunacy dis- 
 qualifying person to act as a free agent. 
 Errors considered on appeal. 
 
 Cited in Wamsley v. Darragh, 14 Misc. 569, 35 N. Y. Supp. 1075, holding 
 relevancy or materiality of papers offered in evidence cannot be determined on 
 appeal when not in record. 
 Conclnsiveness of adjudication as to sanity. 
 
 Cited in Slaughter v. Heath, 127 Ga. 757, 27 L.R.A. (N.S.) 19, 57 S. E. 69, 
 holding that an inquisition and return that a person sought to be declared 
 insane was not so, with an entry confirming same, is not conclusive evidence 
 against third persons who were not parties to the proceedings although notified 
 as next of kin; Re Van Houten, 147 Iowa, 733, 140 Am. St. Rep. 340, 124 N. 
 W. 886, to the point that presumption arising from adjudication in lunacy 
 extends to all persons whether they had notice of inquisition or not. 
 
 Cited in note (140 Am. St. Rep. 347, 348, 349, 354, 358) on adjudication 
 of insanity or existence of guardianship as showing incapacity to execute con- 
 tracts, make wills, etc. 
 
921 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 638 
 
 Distinguished in R. A. Schoenberg & Co. v. Ulman, 51 Misc. 90, 99 N. Y. 
 Supp. 650, holding adjudication that person had been insane for a month prior 
 to the inquisition was not conclusive evidence of his incapacity to sign an order 
 as referee the day before; Re Preston, 113 App. Div. 737, 99 N. Y. Supp. 312, 
 holding an inquiry in lunacy, which finds it to exist at time prior to such 
 inquiry, is not conclusive evidence of incapacity at that prior time. 
 Res jndicata. 
 
 Cited in footnote to Allred v. Smith, 65 L.R.A. 924, which holds judgment 
 in action quasi in rem binding on the parties only. 
 
 5 L. R. A. 636, WILLIS v. SHARP, 115 N. Y. 396, 22 N. E. 149. 
 Liability of decedent's estate for debts contracted by executor. 
 
 Cited in Willis v. Sharp, 124 N. Y. 411, 26 N. E. 974, holding person selling 
 goods to executor continuing business of testatrix, .under power in will, not en- 
 titled to payment to exclusion of creditors of testatrix; Re Stern, 2 Connoly, 205, 
 9 N. Y. Supp. 445, holding, under will limiting power of executor in continuing 
 business of partnership to funds already invested, person subsequently selling 
 goods to firm not creditor of estate; American Surety Co. v. McGuire, 54 Misc. 
 80, 103 N. Y. Supp. 753, on the rights of creditors of testator against estate 
 of executor who continued the business. 
 
 Cited in note (40 L.R.A. (N.S.) 214) on personal representative, testamentary 
 trustee, or guardian carrying on business. 
 
 5 L. R. A. 638, LANDERS v. COOPER, 115 N. Y. 279, 12 Am. St. Rep. 801, 22 
 
 N. E. 212. 
 Conditions in policy. 
 
 Cited in England v. Westchester F. Ins. Co. 81 Wis. 591, 29 Am. St. Rep. 917, 
 51 N. W. 954, holding policy made void by premises remaining vacant and un- 
 occupied for ten days; Aetna Ins. Co. v. Holcomb, 89 Tex. 412, 34 S. W. 915 r 
 holding agent of insurance company not required to inquire as to encumbrances 
 upon application for insurance; Mowry v. Agricultural Ins. Co. 64 Hun, 145, 
 18 N. Y. Supp. 834, holding execution of second mortgage, in place of first mort- 
 gage, which was known to agent, not increasing amount of encumbrance, did not 
 void policy; Arnold v. St. Paul F. & M. Ins. Co. 106 Tenn. 532, 61 S. W. 1032, 
 holding additional insurance procured by owner without knowledge of prior policy 
 procured by agent voided latter; Seibel v. Lebanon Mut. Ins. Co. 16 Lane. L. Rev. 
 357, holding further insurance effected without consent of insurer voids policy. 
 
 Cited in note (11 L. R. A. 345) on conditions in insurance policy. 
 
 Distinguished in Mead v. Saratoga & W. F. Ins. Co. 81 App. Div. 284, 80 N. Y. 
 Supp. 885, holding company liable on policy on meat market, erroneously contain- 
 ing words "while occupied as dwelling." 
 Estoppel or waiver of insnrer. 
 
 Cited in Schuyler v. Phoenix Ins. Co. 56 Hun, 500, 10 N. Y. Supp. 205, holding 
 insurance company not estopped to deny liability for damage by ice because it 
 took possession of boat so damaged for benefit of all ; Power v. Monitor Ins. Co. 
 121 Mich. 366, 80 N. W. Ill (dissenting opinion), majority holding waiver of 
 further insurance properly submitted to jury. 
 
 Cited in notes (5 L.R.A. 646) on estoppel of company by fraud of its agent; 
 (2 L.R.A. (N.S.) 548) on effect of insurance agent's mistake in designating 
 location of property; (107 Am. St. Rep. 107) on waiver of provisions of non- 
 waiver or written waiver of conditions and forfeitures in policies. 
 
5 L.R.A. 638] L. R. A. CASES AS AUTHORITIES. 922 
 
 Effect of other Insurance. 
 
 Distinguished in De Witt v. Agricultural Ins. Co. 89 Hun, 236, 36 N Y. Supp. 
 570, holding purchaser of insured property not the "insured" within provision 
 avoiding policy if insured procures other insurance, though mortgagee subse- 
 quently procures indorsement that he is the owner. 
 Admissibility of parol or extrinsic evidence to nffect contract. 
 
 Cited in Woodard v. Foster, 64 Hun, 148, 18 N. Y. Supp. 834, holding parol 
 evidence to change absolute title in fee conveyed by deed to life estate inadmissi- 
 ble; Saunders v. Agricultural Ins. Co. 167 N. Y. 268, 60 N. E. 635, holding ap- 
 plication with diagram sent to insurance company admissible by company to 
 show what was intended to be insured; Mead v. American F. Ins. Co. 13 App. 
 Div. 481, 43 N. Y. Supp. 334, holding extrinsic evidence admissible to determine 
 whether other insurance means policy which can only include insured property 
 by operation of law; Providence Washington Ins. Co. v. Board of Education, 49 
 W. Va. 377, 38 S. E. 679, holding verbal agreement waiving right of insurer to 
 repair or rebuild, contained in agreement of submission, inadmissible; Martin v. 
 Farmers' Ins. Co. 84 Iowa, 519, 51 N. W. 29, holding parol evidence that policy 
 was intended to cover property destroyed, but by mistake described other prop- 
 -erty, inadmissible; Myers v. Sea Beach R. Co. 43 App. Div. 576, 60 N. Y. Supp. 
 284, holding parol evidence to explain property included in lease admissible; 
 Harness v. Eastern Oil Co. 49 W. Va. 248, 38 S. E. 662, holding parol evidence to 
 vary terms of lease not admissible; Dady v. O'Rourke, 172 N. Y. 453, 65 N. E. 
 273, denying admissibility of parol proof of intention to buy and sell such stock 
 as owner possessed; Dady v. O'Rourke, 172 N. Y. 453, 65 N. E. 273, on the 
 admission of parol evidence to affect written contract; JEtna. Ins. Co. v. Brannon, 
 99 Tex. 396, 2 L.R.A.(N.S.) 551, 89 S. W. 1057, 13 A. & E. Ann. Cas. 1020, 
 on the admissibility of parol evidence to affect policy of insurance. 
 
 Cited in notes (6 L. R. A. 41) on parol evidence to explain writing; (6 L. R, 
 A. 33) on written contracts as evidence; (16 L.R.A.(N.S.) 1171, 1183, 1218) 
 on parol-evidence rule as to varying or contradicting written contracts, as af- 
 fected by doctrine of waiver or estoppel as applied to insurance policies. 
 
 5 L. R. A. 641, CRAFT v. SOUTH BOSTON R. CO. 150 Mass. 207, 22 N. E. 920. 
 Authority of corporate officers to act for corporation. 
 
 Cited in Taylor v. Sutherlin-Meade Tobacco Co. 107 Va. 793, 14 L.R.A. ( N.S. ) 
 1138, 60 S. E. 132, holding that officers of a corporation have no authority to 
 represent the company, unless given expressly or by necessary implication; 
 Newell v. Hadley, 206 Mass. 343, 29 L.R.A.(N.S.) 914, 92 N. E. 507, to the 
 point that corporation is not liable for money borrowed by treasurer who is 
 defaulter and used to pay debts of company in place of funds he misappro- 
 priated. 
 Corporations; authority of officers to make negotiable paper. 
 
 Cited in Merchants' Nat. Bank v. Citizens' Gaslight Co. 159 Mass. 508, 38 Am. 
 St. Rep. 453, 34 N. E. 1083, holding treasurer of manufacturing and trading cor- 
 poration presumed to have authority; City Electric Street R. Co. v. First Nat. 
 Exch. Bank, 62 Ark. 37, 31 L. R. A. 536, 54 Am. St. Rep. 282, 34 S. W. 89, holding 
 authority of president and secretary of railroad to make promissory note for 
 company not presumed; Jewett v. West Somerville Co-operative Bank, 173 Mass. 
 57, 73 Am. St. Rep. 259, 52 N. E. 1085. holding treasurer of co-operative bank 
 without authority to accept order; Helena Nat. Bank v. Rocky Mountain Teleg. 
 o. 20 Mont. 390, 63 Am. St. Rep. 628, 51 Pac. 829, holding authority of general 
 manager of telegraph company not implied; Oak Grove & S. V. Cattle Co. v. 
 
923 L. R. A. CASES AS AUTHORITIES. [5 L.R.A 043 
 
 Foster, 7 N. M. 661, 41 Pac. 522, holding treasurer of cattle company without 
 implied authority; Edwards v. Carson Water Co. 21 Xev. 489, 34 Pac. 381, holding 
 note in name of water company, signed by president and secretary, but for in- 
 dividual debt of president, not corporate act; Alton Mfg. Co. v. Garrett Biblical 
 Institute, 148 111. App. 29, holding treasurer of an eleemosynary corporation 
 has no authority to issue negotiable paper on behalf of corporation; Elkhart 
 Hydraulic Co. v. Turner, 170 Ind. 460, 84 N. E. 812, holding president of a 
 corporation has no authority to sign a note in behalf of the corporation unless 
 it is expressly given by charter, or board of directors; Peoples' Nat. Bank v. 
 New England Home, 209 Mass. 50, 95 N. E. 77, holding that president and 
 treasurer of charitable corporation have no power to make note in name and 
 behalf of corporation; Brown v. Newburyport, 209 Mass. 269, 95 N. E. 504, Ann. 
 Cas. 1912B, 495, holding that city is not liable on note issued by defaulting 
 treasurer in name of city though money obtained is used to cover treasurer's 
 defalcation. 
 
 Distinguished in J. G. Brill Co. v. Norton & T. Street R. Co. 189 Macs. 437, 
 2 L.R.A.(N.S.) 528, 75 N. E. 1090, holding that corporation was not liable on 
 an accommodation indorsement in the hands of a bona fide purchaser, though 
 the directors and a majority of the stockholders authorized it. 
 Moneys had and received. 
 
 Cited in Mechanics Bank v. Woodward, 74 Conn. 694, 51 Atl. 1084, holding 
 party liable to refund moneys procured by agent upon forged note in his name, 
 although innocently received; Re Greene, 55 App. Div. 480, 67 N. Y. Supp. 291, 
 holding bank not entitled to set off overdrafts, allowed county treasurer to cover 
 up defalcation, against obligation for moneys wrongfully loaned bank by county ; 
 Havens v. Bank of Tarboro, 132 N. C. 222, 95 Am. St. Rep. 627, 43 S. E. 639, 
 holding bank liable to pledgee of cashier who fraudulently issued to himself cer- 
 tificates signed by president in blank. 
 
 Cited in footnotes to Soderberg v. King County, 33 L. R. A. 670, which au- 
 thorizes assumpsit against county for fees erroneously paid by sheriff on fore- 
 closure sale; Behring v. Somerville, 49 L. R. A. 578, which denies right of 
 mortgagor, compelled to pay first assignee, to recover amount previously paid 
 second assignee who surrendered mortgage. 
 
 Cited in note (15 L.R.A. (N.S.) 696) on passive acceptance of benefit as 
 ratification of agent's unauthorized use of third person's money. 
 Liability of principal for unauthorized loan by HU-M t. 
 
 Cited in Foote v. Getting, 195 Mass. 61, 15 L.R.A. (N.S.) 697, 80 N. E. 600, 
 holding that owners of property were not liable for the unauthorized appro- 
 priation of the money of another by their agent in charge of the property, to 
 pay the taxes thereon. 
 
 5 L. R. A. 643, HAYES v. PRESS Co. 127 Pa. 642, 14 Am. St. Rep. 874, 18 Atl. 
 
 331. 
 Words libelons per se. 
 
 Cited in St. James Military Academy v. Gaiser, 125 Mo. 525, 28 L. R. A. 
 674, 46 Am. St. Rep. 502, 28 S. W. 851, holding publication which must neces- 
 sarily injure one in his trade or profession is actionable, without proof of 
 special damage; Meas v. Johnson, 185 Pa. 17, 42 W. N. C. 298, 39 Atl. 562, hold- 
 in publication that one is "a first-class fraud, and of the first water," is li- 
 belous per se; Wood v. Boyle, 177 Pa. 630, 39 W. N. C. 131, 52 Am. St. Rep. 
 747. 35 Atl. 853.. holding publication charging manarrer of pipe line to be per- 
 son "without brains, capital, or credit," with having failed in everything he 
 had undertaken, and with trying to steal pipe line irorn poor producers, is libel- 
 
5 L.R.A. 643] L. R. A. CASES AS AUTHORITIES. 924 
 
 ous per se; Fred v. Traylor, 115 Ky. 99, 72 S. W. 768, holding words charging 
 another with "beating him out of $1000 in three months," were actionable per 
 se, when used to induce another to deal with the speaker. 
 
 Cited in footnote to Dun v. Weintraub, 50 L. R. A. 670, as to what consti- 
 tutes libel of merchant. 
 
 Cited in notes (49 L. R. A. 612) on blacklisting dealer as libel; (16 L. R. A. 
 625) on libel by filing lien; (9 L.R.A. 621) on libel and slander in general; 
 (15 Am. St. Rep. 347) on newspaper libel; (116 Am. St. Rep. 817) on what 
 words are libelous per se. 
 Doubtful words for Jury to determine meaning. 
 
 Cited in Berger v. Freeman Tribune Pub. Co. 132 Iowa, 293, 109 N. W. 784; 
 Hubbard v. Furman University, 76 S. C. 513, 57 S. E. 478, holding that if the 
 meaning of words used in a publication is doubtful, the question whether they 
 are libelous is for the jury. 
 Privileged publications. 
 
 Cited in Shelly v. Dampman, 4 Pa. Dist. R. 497, 1 Lack. Legal News, 78, 
 holding privileged publication calling place "bawdy house" in account of arrest 
 for adultery; Good v. Grit Pub. Co. 36 Pa. Super. Ct. 253, holding report of 
 judicial proceedings, if fairly made, are privileged. 
 
 Cited in footnotes to Nissen v. Cramer, 6 L. R. A. 780, which holds relevant 
 words spoken by party to action during trial privileged; Billet v. Times- 
 Democrat Pub. Co. 58 L. R. A. 62, which denies privilege as to publication of 
 reports of police and detective officers to superiors; Muetze v. Tuteur, 9 L. R. 
 A. 86, which holds bad debtors' list libelous, and not privileged. 
 
 Cited in notes (13 L.R.A. 98) on fair criticism of public men allowable; (104 
 Am. St. Rep. 133) on what libelous statements are privileged. 
 Office of innuendo. 
 
 Cited in Collins v. Despatch Pub. Co. 152 Pa. 191, 31 W. N. C. 320, 34 Am. 
 St. Rep. 636, 25 Atl. 546, holding proof of innuendo not necessary when words 
 complained of are defamatory and actionable on their face. 
 Effect of headlines to publication. 
 
 Cited in Landon v. Watkins, 61 Minn. 142, 63 N. W. 615, holding headlines 
 may render publication libelous which without them might not be so; Dorr v. 
 United States, 195 U. S. 152, 49 L. ed. 134, 24 Sup. Ct. Rep. 808, 1 A. & E. 
 Ann. Cas. 697, holding headlines to report of judicial proceedings are not privi- 
 leged, though the report is; Good v. Grit Pub. Co. 36 Pa. Super. Ct. 261, holding 
 that whether the headlines were given undue prominence was a question for 
 the jury; Miller v. State, 81 Ark. 362, 99 S. W. 533, holding headline a part 
 of the article, but may itself be libelous; Brown v. Knapp & Co. 213 Mo. 689, 
 112 S. W. 474, holding headlines to reports of judicial proceedings which are 
 comments on the text, are not privileged, but libelous per se, if they charge 
 crime. 
 Publication of same libel by other parties ns defense. 
 
 Cited in Palmer v. New York News Pub. Co. 31 App. Div. 213, 52 N. Y. Supp. 
 539, holding evidence of same publication in other newspapers, against which 
 similar actions had been begun, not admissible in mitigation. 
 
 Cited in footnotes to Morning Journal Asso. v. Rutherford, 16 L. R. A. 803, 
 which authorizes punitive damages against newspaper reprinting stories of 
 elopement, without inquiry; Brewer v. Chase, 46 L. R. A. 397, which sustains 
 liability of author of libelous articles stating that he is informed that certain 
 things have occurred. 
 
925 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 646 
 
 5 L. R. A. 646, KISTER v. LEBANON MUT. INS. CO. 128 Pa. 553, 16 Am. St. 
 
 Rep. 696, 18 Atl. 447. 
 Conditions in policy. 
 
 Cited in Moore v. Niagara F. Ins. Co. 199 Pa. 53, 85 Am. St. Rep. 771, 48 
 Atl. 869, holding recovery cannot be had on policy when property remained 
 vacant for ten days; Georgia Home Ins. Co. v. Stein, 72 Miss. 949, 18 So. 414, 
 holding policy not avoided by second mortgage on insured property which did 
 not increase amount of encumbrance at date of policy; German Ins. Co. v. 
 Everett, 18 Tex. Civ. App. 517, 46 S. W. 95, holding knowledge of subagent is 
 notice to company of encumbrance existing on issuance of policy; Koshland v. 
 Home Ins. Co. 31 Or. 326, 49 Pac. 864 holding mortgage given in lieu of ex- 
 isting encumbrance, known to company, does not void policy; Medley v. German 
 Alliance Ins. Co. 55 W. Va. 360, 47 S. E. 101, 2 A. & E. Ann. Cas. 99, on the 
 estoppel of a company by the acts of its agent. 
 
 Cited in notes (20 L. R, A. 400) on effect of condition against encumbrance 
 on renewal, substitution, or alteration of encumbrance on insured property; 
 (8 L. R. A. 73) on breach of condition in policy as to encumbrances. 
 
 Distinguished in Rinker v. ^Etna L. Ins. Co. 214 Pa. 612, 112 Am. St. Rep. 
 773, 64 Atl. 82, 15 Pa. Dist. R. 78, holding where the insured had stated to the 
 agent that she had undergone a severe surgical operation, and he answered the 
 question in the application that she had not, and she signed the application 
 without reading the same, the company was not estopped. 
 
 Company estopped by acts of agent. 
 
 Cited in McElroy v. British America Assur. Co. 36 C. C. A. 625, 94 Fed. 
 1000, holding insured not prejudiced by mistake or fraud of insurance agent in 
 not writing contract according to information furnished by insured; Bernard 
 v. United L. Ins. Co. 17 Misc. 119, 39 N. Y. Supp. 356, holding stipulation 
 that one taking application shall be regarded as agent of insured does not 
 apply to one acting within scope of authority previously conferred; Gould v. 
 Dwelling-House Ins. Co. 134 Pa. 590, 26 W. N. C. 168, 19 Am. St. Rep. 
 717, 19 Atl. 793, holding policy issued with knowledge of encumbrances, which 
 though changed were not added to, valid; Supreme Lodge K. of P. v. Withers, 
 177 U. S. 271, 44 L. ed. 767, 20 Sup. Ct. Rep. 611, holding insured not respon- 
 sible for failure of secretary of local branch to remit dues to supreme lodge; 
 Murphy v. Independent Order of S. & D. of I. of A. 77 Miss. 841, 50 L. R. A. 
 117, 27 So. 624, holding subordinate lodges agents of grand lodge of benefit 
 society in respect to collection of assessments; Dowling v. Merchants Ins. Co. 
 168 Pa. 239, 31 Atl. 1087, holding insurance company bound by policy issued by 
 its agent with misdescription not read to insured; Reed v. Equitable F. & M. 
 Ins. Co. 17 R. I. 788, 18 L. R. A. 498, 24 Atl. 833, holding information- supplied 
 agent of company of existence of prior policy does not waive condition as to 
 other insurance; Given v. Rettew. 162 Pa. 643, 29 Atl. 703, holding receiver 
 of mutual insurance company cannot change nonassessable into assessable pol- 
 icy; Meyers v. Lebanon Mut. Ins. Co. 33 W. N. C. 36, holding company bound 
 Tjy agent's acceptance of unresponsive answer as to how much remains un- 
 insured; Mullen v. Union Cent. L. Ins. Co. 7 Kulp, 424, denying policy avoided 
 by agent's incorrectly writing answers by applicant; Carnes v. Farmers' F. 
 Ins. Co. 20 Pa. Super. Ct. 641, holding agent's omission of name of one in- 
 sured does not avoid policy; Zimmer v. Central Acci. Ins. Co. 207 Pa. 478, 56 Atl. 
 1003, holding policy not voided by agent's failure to attach correct copy of 
 application; Gwaltney v. Provident Sav. Life Assur. Soc. 132 N. C. 928, 44 S. 
 E. 659, holding company estopped to object to parol evidence by agent's delivery 
 of policy fraudulently executed, different from agreement; McMaster v. New 
 
5 L.R.A. 646] L. R. A. CASES AS AUTHORITIES. 926 
 
 York L. Ins. Co. 40 C. C. A. 146, 99 Fed. 884 (dissenting opinion), majority 
 holding that parol agreement with agent cannot alter terms of policy; Robinson 
 v. Roberts, 20 Okla. 800, 95 Pac. 246, on the estoppel of the principal by the 
 fraud of the agent; Penn Furniture Co. v. Liberty Mut. F. Ins. Co. 57 Pittsb, 
 L. J. 486, to the point that parol evidence is admissible to correct incorrect 
 statement in application made through agent's mistake. 
 
 Cited in notes (5 L. R. A. 638) on insurance contract cannot be varied in 
 its terms; (6 L. R. A. 45) on parol evidence as to written contract; (7 
 L. R. A. 218, 219) on responsibility of insurance company for acts of its 
 agent; (16 L. R. A. 36) on effect of knowledge by insurer's agent of falsity 
 of statements in application; (67 -L.R.A. 733, 737) on retention of policy as 
 waiver of mistake or fraud of insurer or its agent; (4 L.R.A. (N.S.) 608) on 
 effect of agent's insertion in application of false answers to questions correctly 
 answered by insured; (16 L.R.A. (N.S.) 1210, 1212) on parol-evidence rule as 
 to varying or contracting written contracts, as affected by doctrine of waiver or 
 estoppel as applied to insurance policies; (107 Am. St. Rep. 110) on waiver 
 of provisions of nonwaiver or written waiver of conditions and forfeitures in 
 policies. 
 
 Distinguished in Sitler v. Spring Garden Mut. F. Ins. Co. 18 Pa. Super. Ct. 
 144, holding notice of encumbrance to agent as secretary of loan association not 
 notice to him as agent of insurance company. 
 
 5 L. R. A. 649, BOULTON CARBON CO. v. MILLS, 78 Iowa, 460, 43 N. W. 290. 
 Stockholder's liability. 
 
 Cited in footnote to Rider v. Fritchey, 15 L. R. A. 513, which holds stock- 
 holder assigning to insolvent person not relieved from liability. 
 
 Cited in note (30 L.R.A.(N.S.) 285) on liability of transferee on unpaid 
 stock subscription. 
 When property overvalued. 
 
 Cited in Stout v. Hubbell, 104 Iowa, 503, 73 N. W. 1060, holding mere is- 
 suance of stock as full paid in payment of overvalued property, no defense in ac- 
 tion by creditors; Gilkie & A. Co. v. Dawson Town & Gas Co. 46 Neb. 350, 64 
 N. W. 978, McClure v. Paducah Iron Co. 90 Mo. App. 585; State Trust Co. v. 
 Turner, 111 Iowa, 671, 53 L. R. A. 139, 82 N. W. 1029, holding stockholder 
 liable to creditors for difference between actual and pretended value of prop- 
 erty for which his stock was received; Van Cleve v. Berkey, 143 Mo. 119, 42 
 L. R. A. 597, 44 S. W. 743, holding purchaser of stock with notice of issuance 
 for worthless invention liable to creditors for unpaid subscription, notwith- 
 standing belief in value of property; Peninsular Sav. Bank v. Black Flag Stove 
 Polish Co. 105 Mich. 538, 63 N. W. 514, holding stockholder liable for sub- 
 scription for stock issued full paid in consideration of services which took no 
 time from regular employment; Wishard v. Hansen, 99 Iowa, 311, 61 Am. St. 
 Rep. 238, 68 N. W. 691, holding one receiving stock for grossly overvalued con- 
 sideration liable on corporation's indebtedness existing before his transfer of 
 holdings to insolvent assignee; Re Royce Dry Goods Co. 133 Fed. 103, holding 
 under the law of Missouri, which permits a subscriber to stock of a corporation 
 to pay his subscription in property other than money, provided it is of the 
 reasonable value of the subscription, but makes him subject to strict inquiry 
 as to such value and liable for any unreasonable discrepancy, a trustee for a 
 bankrupt corporation may interpose as a set off to the claim of a stockholder 
 a claim against him for the difference between value of property turned over by 
 him in payment for his stock and the nominal value of the stock. 
 
 Cited in footnotes to Elyton Land Co. v. Birmingham Warehouse & Elevator 
 
27 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 652 
 
 Co. 12 L. R. A. 307, which holds subscribers liable to creditors where stock 
 paid for by conveyance of land worth only amount assumed by corporation. 
 
 Cited in note (42 L. R. A. 621) as to how far the payment for stock in a 
 corporation by a transfer of property will protect the shareholder against cred- 
 itors of the company. 
 
 Distinguished in Clark v. Bever, 139 U. S. 117, 35 L. ed. 97, 11 Sup. Ct. Rep. 
 468, holding member of construction company receiving payment in worth- 
 less railway stock at 20 per cent of par not liable under Iowa statute to cred- 
 itors for remaining 80 per cent. 
 Capital stock as trust fond. 
 
 Cited in footnotes to O'Bear Jewelry Co. v. Volfer, 28 L. R. A. 707, which 
 holds property of insolvent corporation not trust fund except for administration 
 for equal benefit of creditors; Hospes v. Northwestern Mfg. & Car Co. 15 L. 
 R. A. 470, which holds creditor's right to compel payment for bonus stock does 
 not rest on trust-fund doctrine. 
 Stockholder's set-off. 
 
 Cited in Colorado Fuel & Iron Co. v. Sedalia Smelting Co. 13 Colo. App. 479, 
 59 Pac. 222, and Tama Water-Power Co. v. Hopkins, 79 Iowa, 657, 44 N. W. 
 797, holding stockholder cannot offset debts due from company against liabil- 
 ity to creditors for unpaid stock; Bausman v. Kinnear, 24 C. C. A. 475, 48 U. 
 S. App. 312, 79 Fed. 174, holding stockholder cannot set off debt from corpora- 
 tion as against unpaid subscription, after insolvency and suit to wind up. 
 Remedy by action against stockholder. 
 
 Cited in National Park Bank v. Peavey, 64 Fed. 922, holding judgment debt- 
 or has remedy at law to enforce stockholder's statutory liability for corpora- 
 tion's judgment debt to extent of unpaid subscription. 
 
 5 L. R. A. 652, KELLY NAIL & IRON CO. v. LAWRENCE FURNACE CO. 46 
 
 Ohio St. 544, 22 N. E. 639. 
 Abandonment of public highways. 
 
 Cited in Western v. Ralston, 48 W. Va. 184, 36 S. E. 446, holding abandon- 
 ment of public street not implied, and statute of limitations does not run 
 against easement in public street; Lake Shore & M. S. R. Co. v. Cleveland, 1 
 Ohio X. P. 39, holding nonuser of street showed abandonment; Cleveland Ter- 
 minal & V. Ry. v. Akron (City) 6 Ohio N. P. N. S. 96, 18 Ohio S. & C. P. Dec. 
 244, holding that city has no power to vacate a county road within its limits: 
 Morehouse v. Burgot, 22 Ohio C. C. 178, 12 Ohio C. D. 355, holding road not 
 abandoned by nonuser; Tudor Boiler Mfg. Co. v. Greenwald Co. 5 Ohio C. C. 
 N. S. 39, 26 Ohio C. C. 559, on abandonment of easement by nonuser as depend- 
 ing upon surrounding circumstances; Lowe v. East Sioux Falls Quarry Co. 25 
 S. D. 398, 126 N. W. 609, holding that fact that more convenient road has been 
 used is insufficient to show abandonment of established highway. 
 
 Cited in notes (18 L. R. A. 542) on effect of nonuser of easement; (26 L. R. 
 A. 453) on abandonment of highway by nonuser or otherwise than by act of 
 public authorities; (9 L. R. A. 95) on highway; right of public to use of its 
 entire width; (12 Eng. Rul. Cas. 629; 14 Am. St. Rep. 282) on extinguishment 
 of highway and other easements by nonuser or adverse possession. 
 Statute of limitations. 
 
 Cited in Fries v. Wheeling & L. E. R. Co. 56 Ohio St. 146, 46 N. E. 516. 
 holding demurrer setting up statute of limitations to claim for compensation 
 for land taken by railway, not well taken. 
 
5 L.R.A. 654] L. R. A. CASES AS AUTHORITIES. 928 
 
 5 L. R. A. 654, MOORE v. WILLIAMS, 115 N. Y. 586, 12 Am. St. Rep. 844, 
 
 22 N. E. 233. 
 Good and marketable title. 
 
 Cited in Brokaw v. Duffy, 165 N. Y. 399, 59 N. E. 196, holding title not 
 marketable where lunacy proceedings against vendor's grantor are threatened, 
 and there is sufficient evidence to raise reasonable doubt of his sanity; Droge 
 v. Cree, 27 Jones & S. 277, 14 N. Y. Supp. 300, holding vendee entitled to 
 rescind sale by party claiming title under deed by executors against parties 
 in provision under unrecorded conveyances by testator; Simon v. Vanderveer, 
 155 N. Y. 381, 63 Am. St. Rep. 683, 49 N. E. 1043, holding existence of action 
 and Us pendens sufficient to support rescission by vendee and recovery of 
 part payment, irrespective of validity of cause of action; Priessenger v. Sharp, 
 27 Jones & S. 316, 14 N. Y. Supp. 372, holding vendee entitled to rescind pur- 
 chase from trustee claiming title under sale of trust property to himself in 
 violation of statute; Zorn v. McParland, 8 Misc. 130, 28 N. Y. Supp. 485, hold- 
 ing vendee entitled to rescind where outstanding mortgage of record though in 
 fact satisfied, but record of satisfaction refused by reason of clerical error in 
 names; Ingalls v. Halm, 36 N. Y. S. R. 772, 12 N. Y. Supp. 786, holding 
 vendee may rescind sale by party holding record title as trustee, where deed 
 tendered recites that vendor is not trustee but owner in his own right, though 
 executed both as trustee and individual right; Kountze v. Helmuth, 67 Hun. 
 347, 22 N. Y. Supp. 204, holding vendee entitled to rescind where vendor's ti- 
 tle is subject to restrictive building covenants running with the land; Har- 
 rass v. Edwards, 94 Wis. 464, 69 N. W. 69, holding vendee entitled to rescind 
 where deed offered by grantor of doubtful validity by reason of insufficiency 
 of attestation to grantor's signature; Emens v. St. John, 79 Hun, 102, 29 X. 
 Y. Supp. 655, holding agent to exchange realty not entitled to commissions 
 where property offered by him not marketable by reason of question as to au- 
 thority of executor to exercise power of sale after election of devisees to take 
 under will; Warren v. Banning, 50 N. Y. S. R. 812, 21 N. Y. Supp. 883, hold- 
 ing vendee entitled to rescind where vendor failed to disclose that his right as 
 executor to sell was involved in litigation at time of sale; Weinstock v. Levi- 
 son, 26 Abb. N. C. 245, 20 Civ. Proc. Rep. 1, 37 N. Y. S. R. 561, 14 N. Y. Supp. 
 64, holding vendee entitled to rescind where title of vendor was derived under 
 infancy proceeding, validity of which is questionable; Moskowitz v. Horn- 
 berger, 20 Misc. 563, 46 N. Y. Supp. 462, holding title acquired through cor- 
 porate grantor taking in excess of power, marketable where neither state nor 
 heirs attacked same during fifteen years; Reynolds v. Strong, 82 Hun, 207, 31 
 N. Y. Supp. 329, holding vendee entitled to rescind where validity of vendor's 
 title dependent upon undecided question whether wife accepted provision of 
 husband's will in lieu of dower; Marshall v. Wenninger, 20 Misc. 530, 46 N. Y. 
 Supp. 670, holding vendee entitled to rescind where title of vendor rests on 
 deed conveying by reference to chart which shows dedication of part for high- 
 way, though evidence discloses nonuser for twenty-five years; Miner v. Hilton, 
 15 App. Div. 59, 44 N. Y. Supp. 155, holding vendee entitled to rescind 
 where building bought encroached 2y 2 miles on adjoining lot, to which vendor 
 could not give title, though there was evidence of occupancy for a statutory 
 period; Snow v. Monk, 81 App. Div. 210, 80 N. Y. Supp. 719, holding that 
 2-inch encroachment of wall renders premises unmarketable ; Zunker v. Kuehn, 
 113 Wis. 424, 88 N. W. 605, holding party entitled to rescind contract for ex- 
 change of land requiring "record title," where title offered by other party 
 rests partly upon adverse possession ; Hamershlag v. Duryea, 38 App. Div. 132, 
 56 N. Y. Supp. 615, holding vendee entitled to rescind where vendor's ti- 
 
L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 654 
 
 tie dependent upon adverse possession under conveyance of whole title by 
 tenant in common, but evidenced by no act of ownership inconsistent with 
 cotenancy by another; Ruess v. Ewen, 34 App. Div. 486, 54 N. Y. Supp. 357, 
 holding vendee entitled to rescind where vendor's title dependent upon adverse 
 possession after expiration of lease, to support which parol evidence, subject to 
 contradiction, is necessary; Weinstein v. Weber, 178 N. Y. 101, 70 X. E. 115, 
 holding purchaser not required to take title dependent upon parol evidence 
 for completeness; Home v. Rodgers, 113 Ga. 227, 38 S. E. 768, holding vendee 
 entitled to such title as a reasonably prudent person would accept, under agree- 
 ment for "good and sufficient warranty deed in fee simple," Weil v. Radley, 
 31 App. Div. 27, 52 N. Y. Supp. 398, holding vendee not entitled to rescind 
 for lack of record title to strip of land covered by building, where actual 
 title thereto is in vendor by adverse possession for statutory period; Schenck 
 v. Wicks, 23 Utah, 583, 65 Pac. 732, holding vendee's interest in land, subject 
 of sale, not lost by default in payment of purchase money notes where, before 
 maturity, vendor has mortgaged land to third party; Turner v. Walker, 40 
 Misc. 380, 82 N. Y. Supp. 340, holding that easement for railroad right 
 of way renders title unmarketable; Bash v. Cascade Min. Co. 29 Wash. 55, 70 
 Pac. 487, holding that contract to convey mining claim by "sufficient deed in 
 fee simple" means what title vendor has, vendee knowing condition of title; 
 Jay v. Wilson, 91 Hun, 396, 36 N. Y. Supp. 186 (dissenting opinion), majority 
 holding vendee not entitled to rescind where record title clear, though deed 
 outstanding antedating, but not recorded until after, that under which vendor 
 claims; Reed v. Sefton, 11 Cal. App. 91, 103 Pac. 1095, holding a covenant or 
 contract for a perfect title requires the tender of a title free from litigation 
 palpable defects and grave doubts and should consist of both legal and equitable 
 titles and is fairly deducible from the record; Eagan v. Hook, 134 Iowa, 385, 
 105 X. W. 155, holding where a contract for the sale of land provided for a 
 conveyance "by warranty deed with abstract showing good title," a title by 
 adverse possession which could not be shown by the abstract, was not sufficient 
 even though such title was in fact good; Williams v. Bricker, 83 Kan. 56, 30 
 L.R.A. (X.S.) 345, 109 Pac. 998, to the point that same grounds which would 
 justify specific performance will support judgment to recover back purchase 
 money; Empire Realty Corp. v. Sayre, 107 App. Div. 418, 95 X. Y. Supp. 371; 
 Howe v. Coates, 97 Minn. 398, 4 L.R.A. (X.S.) 1178, 114 Am. St. Rep. 723, 107 
 X. W. 397, holding a marketable title means a title free from reasonable doubt; 
 Moulton v. Kolodzik, 97 Minn. 429, 107 N. W. 154, 7 A. & E. Ann. Cas. 1090, 
 holding where lis pendens concerning the land involved has been filed and an 
 action commenced the title is prima facie unmarketable; Ladd v. Weiskopf, 62 
 Minn. 37, 69 L.R.A. 789, 64 X. W. 99, holding a doubt as to the construction 
 of a decree of distribution by a probate court, which is conclusive upon all 
 parties interested in the estate, will not render title unmarketable; Justice v. 
 Button, 89 Xeb. 369, 38 L.R.A. (X.S.) 5, 131 N. W. 736, holding that upon 
 sale of land implied agreement for good title exists unless contract relieves 
 vendor from that obligation; Moran v. Stader, 52 Misc. 387, 103 X. Y. Supp. 
 175, holding purchaser not obliged to take title which can be cured only by 
 parol evidence; Snow v. Monk, 81 App. Div. 210, 80 X. Y. Supp. 719, holding 
 where building contracted to be sold encroached on the property of another 
 for two inches the vendee was not obliged to take the title; Turner v. Walker, 
 40 Misc. 380, 82 X. Y. Supp. 340, holding in the absence of any language to the 
 contrary in an executory contract for sale of lands, the law implies a right in 
 the vendee to receive a good title free from encumbrances and defects; Brokaw 
 v. Duffy. 31 X. Y. Civ. Proc. Rep. 3o7, holding the distinction which once pre- 
 L.R.A. Au. Vol. I. 59. 
 
5 L.R.A. 654] L. R. A. CASES AS AUTHORITIES. 930 
 
 vailed as to marketable titles between courts of law and equity no longer exists, 
 and an action at law by vendee to recover back purchase money paid, may be 
 based upon the same ground that would justify a court of equity in refusing 
 to compel him to accept the title; Classman v. Condon, 2T Utah, 467, 76 Pac. 
 343, holding a vendor before he can compel payment of the price or any part 
 thereof under a contract of purchase obligating him to furnish a good title or 
 warranty deed must make a tender of a title free from encumbrances, unless 
 the contract by its terms or circumstances leading up to the transaction shows 
 that the parties intended that the sale should be made subject to the defects in 
 the title. 
 
 Cited in footnote to Rife v. Lybarger, 17 L. R. A. 403, which holds vendor 
 bound to tender only marketable title in absence of stipulation. 
 
 Cited in notes (12 L.R.A. 246) on rights and remedies of vendee; (20 Am. 
 St. Rep. 217) on purchaser's duty as to taking defective title; (132 Am. St. 
 Rep. 991, 992, 994; 38 L.R.A. (N.S.) 4, 7, 31) on what is a marketable title. 
 
 Distinguished in Ladd v. Weiskopf, 62 Minn. 37, 64 N. W. 99, holding vendee 
 not entitled to rescind where only defect is doubt as to construction of probate 
 court's decree, determinable finally by court; Blanck v. Sadlier, 153 N. Y. 556 T 
 40 L. R. A. 668, 47 N. E. 920, holding purchaser at auction sale subject to out- 
 standing mortgage not entitled to repudiate to recover back deposit and expenses 
 on ground that mortgage payable only in gold; Greenblatt v. Hermann, 144 N. Y. 
 20, 38 N. E. 966, holding mere possibility of heirs not joined in conveyance in- 
 sufficient to render title unmarketable and warrant recovery of partial payments 
 by vendee; Duluth Loan & Land Co. v. Klovdahl, 55 Minn. 343, 56 N. W. 1119, 
 holding vendee not entitled to abandon on ground of encumbrance, if same re- 
 movable by solvent vendor before time for execution of deed; Darrow v. Cornell, 
 30 App. Div. 119, 51 N. Y. Supp. 828, holding vendee not entitled to damages for 
 breach of contract of sale where no tender and demand for performance made at 
 date for completion of sale; Duncan v. Gisborn^ 17 Utah, 211, 53 Pac. 1044, 
 holding vendee barred by statute of limitations where action to recover partial 
 payments not brought within statutory period after failure of vendor to furnish 
 required title. 
 In equity. 
 
 Cited in Irving v. Campbell, 121 N. Y. 357, 8 L. R. A. 621, 24 N. E. 821, hold- 
 ing vendor not entitled to specific performance of sale where deed under which 
 he claimed was not entitled to record by reason of insufficient acknowledgment; 
 Taylor v. Chamberlain, 6 App. Div. 39, 39 N. Y. Supp. 737, holding vendor can- 
 not specifically enforce sale where title dependent upon purchase in probate pro- 
 ceedings, valid only under certain circumstances not shown by deed to exist; 
 Aldrich v. Bailey, 28 N. Y. S. R. 573, 8 N. Y. Supp. 435, holding vendor not en- 
 titled to specific performance of sale contract where title attacked, prior to sale, 
 by heirs of former owner on ground that deed by latter void for incapacity to 
 execute conveyance; Vought v. Williams, 120 N. Y. 257, 8 L. R. A. 592, 17 Am. 
 St. Rep. 634, 24 N. E. 195, holding vendor not entitled to specific performance 
 where plaintiff's grantors claim title under deed from heirs at law of prior owner, 
 but fail to show conveyance of interest of one who had disappeared many years 
 before and had not been heard of since; Heller v. Cohen, 15 Misc. 384, 36 N. Y. 
 Supp. 668, holding vendor not entitled to specific performance where deed on 
 partition sale under which he claimed, changed former description by beginning 
 at different corner of intersection of streets, and portion of property was claimed 
 only by adverse possession; Davis v. Watson, 89 Mo. App. 25, holding vendor's 
 petition to enforce sale of interest in land insufficient where no averment of 
 good and sufficient title, though deed tendered; Giltner v. Rayl, 93 Iowa, 19, 
 
931 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 659 
 
 61 N. W. 225, holding vendee not entitled to specific performace after abandon- 
 ment for failure of vendor to secure quitclaim deed demanded to perfect title; 
 Scidelbach v. Knaggs, 44 App. Div. 172, 60 N. Y. Supp. 774 (dissenting opinion), 
 majority holding vendor entitled to specific performance where his title derived 
 from beneficiaries in dry trust though trustee did not join. 
 
 Distinguished in Frain v. Klein, 18 App. Div. 66, 79 N. Y. S. R. 395, 45 
 N. Y. Supp. 394, decreeing specific performance of sale, and ordering payment 
 of lien out of purchase money, where only defense is existence of lien; Haffey v. 
 Lynch, 143 N. Y. 247, 38 N. 3. 298, holding vendee at auction sale under con- 
 tract for full warranty deed may, in suit for specific performance, compel vendor 
 to remove lien of ejectment suit filed after sale; Cambrelleng v. Purton, 125 
 N. Y. 616, 26 N. E. 907, compelling purchaser at judicial sale in partition pro- 
 ceedings to take title, where only defect was failure to join as heir son who had 
 long ago disappeared and upon whose estate administration had issue; Sloane v. 
 Martin, 77 Hun, 252, 24 N. Y. Supp. 663, decreeing specific performance of sale 
 where only defect is failure to show service of subpoena on infants in proceeding 
 against them by guardian ad litem, in absence of evidence to prove that service 
 was not made; Kullman v. Cox, 26 App. Div. 160, 49 N. Y. Supp. 908, holding 
 vendor entitled to specific performance of sale where title acquired from pur- 
 chaser on foreclosure of mortgage on property held by vendor as tenant by curtesy, 
 no collusion to defeat wife's heirs being shown; Godding v. Decker, 3 Colo. App. 
 203, 32 Pac. 832, holding vendor of government land entitled to specific perform- 
 ance of sale although he holds but final receipt, and not patent for land. 
 Rescission of contract for sale of land. 
 
 Cited in Miller v. Shelburn, 15 N. D. 187, 107 N. W. 51, holding rescission 
 may be affected by act of a party thereto when the consideration for the con- 
 tract has wholly or partially failed through fault of other party. 
 
 5 L. R. A. 659, DIXON v. WHITE SEWING MACH. CO. 128 Pa. 397, 15 Am. 
 
 St. Rep. 683, 18 Atl. 502. 
 "When action of trespass will lie. 
 
 Cited in Kitchen v. McCloskey, 150 Pa. 383, 30 W. N. C. 484, 30 Am. St. Rep. 
 811, 24 Atl. 688, holding owner of horse seized and 'sold by sheriff on execution 
 againsfc stranger can bring action of trespass against sheriff; Reece v. Rodgers, 40 
 Pa. Super. Ct. 179, holding where a constable distrains and sells goods already 
 levied upon by sheriff under a judgment against the tenant, the latter cannot 
 maintain an action against landlord for alleged trespass. 
 
 Cited in footnote to Vickery v. Crawford, 49 L. R. A. 773, which holds sheriff 
 not protected by writ of sequestration in seizing property of stranger. 
 What subject to, and sufficiency of, levy. 
 
 Cited in Miller v. Westerhoff, 14 Pa. Super. Ct. 610, 18 Lane. L. Rev. 21, hold- 
 ing goods in hands of sheriff under prior levy are bound by a second fi. fa. from 
 date of delivery; McCleaster's Estate 15 Pa. Co. Ct. 124, 3 Pa. Dist. R. 609, 
 holding mere formal levy without having goods in possession or in view void as 
 against assignment for creditors; Glazier v. Sawyer, 11 Pa. Co. Ct. 36, 1 Pa. 
 Dist. R. 37, holding title of purchaser subsequent to execution cannot be de- 
 feated where no levy had been made. 
 
 Cited in footnote to Battle Creek Valley Bank v. First Nat. Bank, 56 L. R. A. 
 124, which holds physical seizure or dispossession essential to levy of execution on 
 chattels. 
 
 Distinguished in Richards v. Miller, 11 Pa. Super. Ct. 231, holding acceptance 
 of goods by purchaser on execution sale estops him from asserting gooda not in 
 
5 L.R.A. 659] L. R. A. CASES AS AUTHORITIES. 932 
 
 fact sold; Mansfield v. Bell, 24 Pa. Super. Ct. 453, holding no evidence that con- 
 stable changed or restricted his levy to the interest of defendant when after levy 
 on goods the}' were claimed by third party. 
 Conclnsiveness of sheriff's return. 
 
 Cited in Rickard v. Major, 34 Pa. Super. Ct. Ill, holding in an action of re- 
 plevin the defendant cannot in his affidavit of defense contradict the sheriff's 
 return. 
 
 5 L. R. A. 661, GROFF v. BIRD IX HAND TURNP. CO. 128 Pa. 621, 18 Atl. 431. 
 Affirmed without opinion by majority on reargument in 144 Pa. 152, 22 
 Atl. 834. 
 What property may be condemned. 
 
 Cited in Scranton Gas & Water Co. v. Northern Coal & I. Co. 192 Pa. 87, 44 
 W. N. C. 283, 73 Am. St. Rep. 798, 43 Atl. 470, Reversing 3 Lack. Legal News, 
 309, holding railroad cannot condemn land of gas company necessary for latter'a 
 present and future use, for reasons of convenience and economy; Farmers' Market 
 Co. v. Philadelphia & R. Terminal Co. 10 Pa. Co. Ct. 28, 28 W. N. C. 113, sus- 
 taining railroad company's right to condemn property of market company; Phil- 
 adelphia Water Supply Co. v. Susquehanna Canal Co. 4 Pa. Dist. R. 638, deny- 
 ing right of water company to appropriate entire real estate of canal company; 
 Lehigh Coal & Nav. Co. v. Scranton Gas & Water Co. 6 Pa. Dist. R. 309, deny- 
 ing water company's appropriation of flood water detrimental to rights of naviga- 
 tion company; Trenton Cut-Off R. Co. v. Newtown Electric Street R. Co. 8 Pa. 
 Dist. R. 552, denying right of one railway company to occupy lands of another 
 without permission; Western U. Teleg. Co. v. Pennsylvania R. Co. 59 C. C. A. 117, 
 123 Fed. 37, Affirming 120 Fed. 377, 33 Pittsb. L J. N. S. 245, denying right of 
 telegraph company which had occupied railroad lands under contract, to condemn 
 right of way after termination of contract; Western U. Teleg. Co. v. Pennsylva- 
 nia R. Co. 195 U. S. 597, 49 L. ed. 336, 25 Sup. Ct. Rep. 150, 1 A. & E. Ann. Gas. 
 533, holding railways are not "highways" within the meaning of a provision 
 in the charter of a telegraph company giving it the right to occupy with its 
 telegraph lines any of the roads, highways, streets and waters within the state; 
 South Dakota C. R. Co. v. Chicago, M. & St. P. R. Co. 73 C. C. A. 176, 141 Fed. 
 584, holding statutes of South Dakota conferring power of eminent domain on 
 railroad companies while authorizing one railroad company to "cross, intersect, 
 join, and unite its road with the railroad of any other company," do not au- 
 thorize it to build its road longitudinally upon the right of way of another com- 
 pany, and in the absence of such statutory right it cannot condemn a right of 
 way to do so; Scranton Gas & Water Co. v. Delaware, L. & W. R. Co. 225 Pa. 
 161, 73 Atl. 1097, holding property devoted to public use including a franchise, is 
 subject to eminent domain, and may be taken for other public uses, but it 
 cannot be taken without legislative authority expressed in clear terms or by 
 necessary implication; Southwestern Normal School's Case, 213 Pa. 246, 62 
 Atl. 908, holding statute authorizing the condemnation of real estate needed 
 for the use of state normal schools, does not authorize such a school to con- 
 demn for a campus streets and alleys dedicated to public use; Re Southwestern 
 State Normal School, 26 Pa. Super. Ct. 102, holding acts extending corporate 
 privileges are to be construed most strongly against the company setting them 
 up. 
 
 Cited in notes (13 L.R.A. 432) on property which may be condemned; (22 
 L.R.A. (N.S.) 3, 7) on judicial power over eminent domain; (22 Am. St. Rep. 
 48, 49) on eminent domain; (26 Am. St. Rep. 432) on right of one railway to 
 cross another. 
 
933 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 664 
 
 Distinguished in Pittsburgh Junction R. Co. v. Allegheny Valley R. Co. 146 Pa. 
 307, 29 W. X. C. 229, 23 Atl. 313, upholding right to make necessary crossing of 
 another railroad's yard, upon elevated structure. 
 Turnpike cases. 
 
 Cited in Philadelphia, B. & B. M. Turnp. Co. v. Bryn Mawr Water Co. 16 
 Montg. Co. L. Rep. 117, upholding water company's right to lay pipes under 
 turnpike; Com. v. Philadelphia, B. & B. M. Turnp. Co. 12 Pa. Co. Ct. 279, 2 Pa. 
 Dist. R. 12, 31 W. N. C. 529, upholding amendment of turnpike company's charter 
 extending line to take free public roads; Wenger v. Rohrer, 3 Pa. Super. Ct. 
 599, 40 W. N. C. Ill, 14 Lane. L. Rev. 147, holding owners of turnpike road sub- 
 stituted for township road not liable for interference with abutter's drain; 
 Blakely v. Delaware & H. Canal Co. 2 Lack. Legal News, 66; McManus's Appeal, 
 5 Pa. Super. Ct. 69, 40 W. N. C. 485, 28 Pittsb. L. J. N. S. 61, sustaining turnpike 
 company's right to condemn private property for road purposes; Nesihger v. 
 Clay & H. Turnp. Co. 203 Pa. 267, 52 Atl. 197, Affirming 19 Lane. L. Rev. 140, 
 denying injunction against turnpike company's operation of road without paying 
 for previous improvements, after delay of sixteen years. 
 
 Distinguished in Schload v. Clay & H. Turnp. Co. 16 Lane. L. Rev. 283, denying 
 turnpike company's right to appropriate abandoned road without paying for pre- 
 vious maintenance. 
 Enjoining- unauthorized acts. 
 
 Cited in Plymouth Twp. v. Chestnut Hill & N. R, Co. 168 Pa. 188, 36 W. N. C. 
 320, 32 Atl. 19, upholding township's right to restrain construction of street 
 railway after revocation of consent for failure to complete line within time fixed; 
 Conestoga & B. S. Valley Turnp. Road Co. v. Lancaster, 9 Lane. L. Rev. 236, 
 denying injunction against removal of toll gate after delay of twenty-one years; 
 Riley v. Pennsylvania Co. 32 Pa. Super. Ct. 593, holding an abutting owner who 
 must use a street as a means of access to his property has a special interest 
 therein, which gives him a standing to invoke the aid of equity to prevent 
 obstruction of the street; Berkey v. Berwind- White Coal Min. Co. 220 Pa. 79, 
 16 L.R.A. (X.S.) 857, 69 Atl. 329 (dissenting opinion) upon propriety of in- 
 junctive relief; Griffith v. Monongahela R. Co. 20 Pa. Dist. R. 542, 58 Pittsb. 
 L. J. 14, holding that equity courts will enjoin corporate acts trespass which 
 is permanent or likely to become such. 
 Powers of corporations. 
 
 Cited in note (33 Am. St. Rep. 248) on powers of corporations. 
 
 5 L. R. A. 664, PLAISTED v. HAIR, 150 Mass. 275, 22 N. E. 921. 
 Marriage affecting rights and liabilities. 
 
 Cited in Southworth v. Edmands, 152 Mass. 206, 9 L. R. A. 119, 25 N. E. 106. 
 holding tax properly assessed to husband of owner of premises by unrecorded 
 deed, occupied by him as head of family; Kirchgassner v. Rodick, 170 Mass. 545, 
 49 X. E. 1015, holding heir cannot recover for occupation of home by husband 
 of dowress in possession by consent of heir. 
 
 Cited in footnote to Peaks v. Hutchinson, 59 L. R, A. 279, which sustains 
 wife's contract to permit husband to erect building on her land which shall re- 
 main his; Blackburn v. Thompson, 56 L. R. A. 938, which holds subject to hus- 
 band's debts, property purchased in wife's name from profits of business con- 
 ducted by him as her agent; Dempster Mill Mfg. Co. v. Bundy, 56 L. R. A. 739, 
 which holds void, contract that product of joint labor of husband and wife shall 
 belong to wife. 
 
5 L.R.A. 664] L. R. A. CASES AS AUTHORITIES. 934 
 
 Cited in note (77 Am. St. Rep. 99) on liability of wife's separate estate to 
 husband's creditors for value of increase due to his acts. 
 
 5 L. R. A. 666, TUCK v. MANNING, 150 Mass. 211, 22 N. E. 1001. 
 Money deposited by order of court. 
 
 Cited in Gregory v. Merchants' Nat. Bank, 171 Mass. 70, 50 N. E. 520, holding 
 ownership of money deposited by order of Federal court in bank cannot be de- 
 termined by state court; Corbitt v. Farmers' Bank, 114 Fed. 604, holding money 
 under control of Federal court not subject to attachment by any other court; 
 Chase v. Thompson, 153 Mass. 16, 26 N. E. 137, holding money deposited for bene- 
 fit to distributee by order of probate court cannot be reached by trustee process; 
 First Nat. Bank v. Londonderry Min. Co. 50 Colo. 90, 114 Pac. 313, holding that 
 no independent action is required to compel payment of moneys borrowed from 
 court by bank, as it is subject to court's order; Shelton v. Wolthausen, 80 Conn. 
 604, 125 Am. St. Rep. 131, 69 Atl. 1030, holding money in the clerk's hands 
 directed by a decree to be paid to a third person, cannot be made the subject of 
 foreign attachment with the usual consequence that judgment may be followed by 
 scire facias to appropriate the fund; \Yilliston Seminary v. Easthampton Spin- 
 ning Co. 186 Mass. 488, 72 N. E. 67, holding where a receiver of a corporation 
 was appointed in a creditor's suit a petition of intervention was not maintain- 
 able therein, prior to entry of a decree of distribution, either against the receiver 
 or the corporation, by one creditor for the purpose of subjecting the claim of 
 another against the corporation, or any dividend that might be paid thereon, to 
 an individual indebtedness existing between such creditors. 
 
 Cited in footnotes to McAlmond v. Bevington, 53 L. R. A. 597, which holds 
 money deposited with justice by third person as bail not subject to garnishment 
 for prisoner's debt; Jones v. Merchants' Nat. Bank, 35 L. R. A. 698, which holds 
 money paid into court exempt from process of litigant unless consent of court 
 obtained. 
 
 Cited in note (10 L. R. A. 529) on property in custody of law not subject to 
 seizure. 
 
 Distinguished in Adamian v. Hassanoff, 189 Mass. 196, 75 N. E. 126, holding 
 statute authorizing suits by creditors to reach any property of a debtor which 
 cannot be reached at law, authorizes a creditor to maintain a bill to reach his 
 debtor's property after the court in which the suit is brought has appointed a 
 receiver with authority to obtain a warehouse receipt for the property as receiver 
 and to transfer the same to another warehouse subject to import duties due the 
 government and impound the warehouse receipt in the office of the clerk of court, 
 where the appointment was made after attempted attachments at law by other 
 creditors while the property was in the warehouse subject to lien for import 
 duties after discharge of trustees in attachment suits. 
 Jnrisdictional averments necessary to sustain creditor's bill. 
 
 Cited in Hoshor-Platt Co. v. Miller, 190 Mass. 287, 76 N. E. 650, holding where 
 a cause of action was not in itself a subject of equitable jurisdiction and plain- 
 tiff's right to equitable relief depended entirely upon the fact that the bill was 
 brought to reach and apply in payment of plaintiff's alleged debt, property of 
 debtor not subject to attachment or execution as authorized by statute, the 
 averments of the bill as to the existence of such property were jurisdictional 
 and must be proved as laid. 
 Intervention. 
 
 Cited in Hill v. Hill, 196 Mass. 519, 82 N. E. 690, as to whether upon petition 
 by divorced wife who has obtained decrees giving her custody of children and 
 maintenance and issuing of process of attachment and execution upon land of 
 
335 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 667 
 
 former husband, a person who claims attached land under oral trust, can inter- 
 vene by petition in this proceeding instead of filing an independent bill in equity. 
 
 5 L. R. A. 667, RYALLS v. MECHANICS MILLS, 150 Mass. 190, 22 X. E. 766. 
 Construction of statutes. 
 
 Cited in Emmons v. Shaw, 171 Mass. 412, 50 N. E. 1033, holding construction 
 determined by application of ordinary rules of law relating to subject-matter, and 
 by considering manner of their application to similar statutes elsewhere; Parsons v. 
 Parsons, 67 N. H. 420, 29 Atl. 999; Bellegarde v. Union Bag & Paper Co. 90 App. 
 Div. 581, 86 N. Y. Supp. 72, holding fact that statute is copied from another 
 state is evidence of intention to confine its application to claims of nature to 
 which it is there applied; Vetaloro v. Perkins, 101 Fed. 393, and Griffin v. Over- 
 man \Yheel Co. 9 C. C. A. 547, 21 U. S. App. 151, 61 Fed. 572, holding purpose 
 of Massachusetts employers' liability act is to remove existing limitations upon 
 remedy of employees for personal injuries, and should be liberally construed; 
 Jarvis v. Hitch, 161 Ind. 220, 67 N. E. 1057, holding steam pile-driver, consisting 
 of engine at one end and driver at other end of flat car, not "locomotive engine;" 
 Gmaehle v. Rosenberg, 178 N. Y. 152, 70 N. E. 411, holding service of notice of 
 injury unnecessary in actions based on master's common-law liability; American 
 Rolling Mill Co. v. Hullinger, 161 Ind. 679, 67 N. E. 986, holding rules of inter- 
 pretation and construction are derived from common law; Jarvis v. Hitch, 161 
 Ind. 220, 67 N. E. 3057, holding where an English statute is adopted by the legis- 
 lature, the construction given thereto by the English courts prior to such adop- 
 tion, is persuasive in determining the meaning of the language used therein; 
 Com. v. Greenwood, 205 Mass. 127, 91 N. E. 141, 18 Ann. Cas. 185; State v. 
 O'Xeil, 147 Iowa, 527, 33 L.R.A.(X.S.) 796, 126 X. W. 454, Ann. Cas. 1912B, 
 691, to the point that judicial interpretation of statute becomes part of stat- 
 ute law when re-enacted; Zaloom v. Ganim, 72 Misc. 44, 129 X. Y. Supp. 85 
 (dissenting opinion), on interpretation of foreign statute re-enacted. 
 
 Cited in footnote to Wolf v. Youbert, 21 L. R. A. 772, which requires applica- 
 tion, in construing adopted statute, of construction of courts of state from which 
 adopted. 
 
 Cited in notes ( 12 L. R. A. 857 ) on judicial power in interpretation and con- 
 struction of statutes; (10 L. R. A. 841) on statutes in derogation of common 
 law are strictly construed. 
 Effect of employers' liability acts. 
 
 Cited in Clark v. Merchants & Miners Transp. Co. 151 Mass. 353, 24 X. E. 
 49, and Coughlin v. Boston Tow-Boat Co. 151 ( Mass. 94, 23 X. E. 721, holding 
 employers' liability act does not take away common-law right of action; Colorado 
 Milling & Elevator Co. v. Mitchell, 26 Colo. 289, 58 Pac. 28, holding common-law 
 right of employees to recover for personal injury not taken away by employers' 
 liability act 1893; French v. Mascoma Flannel Co. 66 X. H. 98, 20 Atl. 363, 
 holding statute conditioning employee's right of action upon his giving employer 
 notice within sixty days after injury not applicable to cause of action by per- 
 sonal representative under prior statute; Mitchell v. Colorado Milling & Elevator 
 Co. 12 Colo. App. 281, 55 Pac. 736, holding employers' liability act 1893, requiring 
 notice to employer within sixty days after injury, not applicable to action by 
 mother for death of son; Colorado Coal & I. Co. v. Carpita, 6 Colo. App. 254, 40 
 Pac. 248, holding mining act not conclusive of remedy and of parties who may 
 sue, when case not clearly based on violation of statute; Boggs v. Alabama 
 Consol. Coal & I. Co. 167 Ala. 255, 140 Am. St. Rep. 28 ? 52 So. 878, holding that 
 Employer's Liability Act is remedial and does not destroy any common law- 
 right of servant; Denver * R. G. R. Co. v. Xorgate, G L.R.A. (X.S.) 991, 72 
 
5 L.I7.A. 667] L. R. A. CASES AS AUTHORITIES. 936 
 
 C. C. A. 365, 141 Fed. 251, 5 A. & E. Ann. Cas. 448, holding Colorado employers 
 liability act applies only in cases founded on rights created thereby, and the 
 provision requiring notice of an injury to be given by an employee within 60 days 
 as a condition precedent to suit has no application to suit upon right of action 
 given by common law; Feeney v. York Mfg. Co. 189 Mass. 339, 75 N. E. 733, 
 holding statute authorizing an employee to recover for a personal injury caused 
 by a defect in the ways, works or machinery in the business of the employer, or 
 by the negligence of a person in the service of the employer exercising superin- 
 tendence does not limit the right of recovery to injuries caused by defective 
 permanent appliances, but embraces unsafe appliances of a temporary character. 
 
 Cited in footnotes to Johnson v. St. Paul & D. R. Co. 8 L. R. A. 419, which 
 holds railroad company not liable for injury from fellow servant's negligence to 
 member of crew repairing bridge; Johnson v. St. Paul & D. R. Co. 8 L. R. A. 419, 
 which holds railroad employers' liability act 1887 applicable only to employees 
 exposed to peculiar hazards connected with use and operation of railroad. 
 
 Cited in note (12 L.R.A. (N.S.) 1038) on effect on common-law action of em- 
 ployer's liability act. 
 Joinder of common-law and statutory rights of action. 
 
 Cited in Clare v. New York & X. E. R. Co. 172 Mass. 212, 51 N. E. 1083, holding 
 servant, or his administrator, suing for personal injury may join counts at 
 common law with counts under employers' liability act; May v. Whittier Mach. 
 Co. 154 Mass. 31, 27 N. E. 768, holding plaintiff not prejudiced by being required 
 to elect between statutory and common-law count, where negligence complained 
 of was that of fellow servant. 
 Risks assumed by servant. 
 
 Cited in Mellor v. Merchants' Mfg. Co. 150 Mass. 363, 5 L. R, A. 793, 23 N. E. 
 100, holding servant assumes risk of known dangers of employment, irrespective 
 of any implied term in contract of service ; Birmingham R. & Electric Co. v. 
 Allen, 99 Ala. 373, 20 L. R. A. 461, 13 So. 8, holding maxim, Volenti non fit in- 
 juria applicable to action under employers' liability act; American Rolling Mill 
 Co. v. Hullinger, 161 Ind. 679, 67 X. E. 986, holding that complaint under em- 
 ployers' liability act for injuries from leaving truss without support must allege 
 nonassumption of risk. 
 
 Cited in note (19 Eng. Rul. Cas. 163, 167) on assumption of risks by employee. 
 "When negrli&ence of fellow servant impntable to master. 
 
 Cited in Haskell v. Cape Ann Anchor Works, 178 Mass. 487, 59 X. E. 1113, hold- 
 ing fact that proximate cause of damage was negligence of fellow servant in 
 making permanent appliance, not defense to action for personal injury; Bjbjian 
 v. Woonsocket Rubber Co. 164 Mass. 219, 41 N. E. 265, holding negligence of 
 workman in performance of regular daily duty incident to ordinary use of ma- 
 chinery not imputable to master; Carbury v. Downing, 154 Mass. 251, 28 X. E. 
 162, holding wire defectively secured in hoisting rope to indicate time for stop- 
 ping engine, not defect in ways, works, or machinery existing through negligence 
 of employer; McLaine v. Head & D. Co. 71 X. H. 308, 58 L. R. A. 469, 93 Am. St. 
 Rep. 522, 52 Atl. 545 (dissenting opinion), majority holding failure of foreman to 
 notify laborer in trench of dumping of load of earth not breach of master's duty 
 to provide safe place to work; Rowley v. Ellis, 397 Mass. 395, 83 X. E. 1103, as 
 to negligence of fellow servant in failure to inspect being imputable to master; 
 Haskell v. Cape Ann Anchor Works. 178 Mass. 487, 4 L.R.A. (X.S.) 227, 59 X. 
 E. 1113, as to fact that fellow servant made appliance being no defense to 
 action by servant injured by defect in same. 
 
 Cited in note (4 L.R.A. (X.S.) 221, 229) on duty of master to furnish safe 
 
<J37 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 671 
 
 appliances as affected by fact that defective appliances are prepared by fellow 
 servants. 
 
 5 L. R. A. 671, DUPREAU v. HIBERNIA INS. CO. 76 Mich. 615, 43 N. W. 585. 
 
 Ownership and change of possession of insured property. 
 
 Cited in Loventhal v. Home Ins. Co. 112 Ala. 119, 33 L. R. A. 262, 57 Am. St. 
 Rep. 24, 20 So. 419, holding vendee may recover as "sole owner" within meaning 
 of policy where in possession under purchase contract and bond of vendor, to 
 convey on full payment of purchase price; Knop v. National F. Ins. Co. 101 Mich. 
 361, 59 N. W. 653, holding vendee in possession under land contract may recover 
 on insurance policy, void unless insured "sole owner," where vendee made no 
 written application for policy nor any representations regarding ownership; Liv- 
 erpool & L. & G. Ins. Co. v. Ricker, 10 Tex. Civ. App. 268, 31 S. W. 248, holding 
 existence of vendor's lien for purchase price and outstanding purchase money 
 notes does not bar recovery by vendee on policy stipulating for his sole owner- 
 ship; Light v. Greenwich Ins. Co. 105 Tenn. 487, 58 S. W. 851, holding vendee of 
 personal property in conditional sale, reserving title to vendor though possession 
 passed to vendee, sole owner within policy; Hamilton v. Dwelling House Ins. Co. 
 98 Mich. 538, 22 L. R. A. 529, 57 N. W. 735, holding vendor, in contract for sale 
 of land under which vendee has taken possession and made payments, has insur- 
 able interest covered by policy, where company is estopped to assert that he is not 
 ole owner; Matthews v. Capital F. Ins. Co. 115 Wis. 274, 91 N. W. 675, holding 
 vendee's interest under land contract "unconditional and sole ownership'' within 
 policy; McCollough v. Home Ins. Co. 155 Cal. 662, 102 Pac. 814, holding a vendee 
 in possession under a contract not signed by him, but referring to an application 
 to purchase signed by him, was within the rule that holder of an equitable title 
 is the "unconditional and sole owner" within the meaning of that condition in a 
 policy of insurance. Connecticut F. Ins. Co. v. Colorado Leasing Min. & Mill. Co. 
 50 Colo. 439, 116 Pac. 154, Ann. Cas. 1912C, 597, holding that vendee in possession 
 of land is "unconditional and sole owner in fee simple" within meaning of insur- 
 ance policy; Insurance Co. of N. A. v. Erickson, 50 Fla. 429, 2 L.R.A. (N.S.) 512, 
 111 Am. St. Rep. 121, 39 So. 495, 7 A. & E. Ann. Cas. 495, holding the interest of 
 a purchaser of property, which he has unqualifiedly agreed to buy, and which the 
 former owner has absolutely contracted to sell him upon definite terms, is the 
 sole and unconditional ownership within the true meaning of the ordinary clause 
 in insurance policies; Maas v. Anchor F. Ins. Co. 148 Mich. 434, 111 N. W. 1044, 
 holding one having the equitable title to land by virtue of a parol gift, followed 
 by possession and improvement, is the absolute owner within an application for 
 a fire policy, and is the owner in fee simple within the meaning of the policy; 
 Bakker v. Fellows, 153 Mich. 437, 117 N. W. 52 (dissenting opinion), as to what 
 constitutes ownership. 
 
 Cited in notes (11 L.R.A. 599) on what are insurable interests; (20 L.R.A. 
 (N. S.) 777) on vendee under land contract as owner within meaning of insur- 
 ance policy. 
 Change of possession. 
 
 Cited in Phenix Ins. Co. v. Caldwell, 187 111. 80, 58 N. E. 314, holding execution 
 of bond for deed, together with receipt of portion of purchase money, not "sale" 
 within meaning of policy void in event of transfer of possession of title; Phenix 
 Ins. Co. v. Caldwell, 85 111. App. 108, holding title unaffected by execution and 
 delivery of bond for deed, within provision avoiding policy in case of sale or 
 transfer, or change of title or possession, 
 Estoppel as to ownership. 
 
 Cited in State Ins. Co. v. Du Bois, 7 Colo. App. 222, 44 Pac. 756, and Wich v. 
 
5 L.R.A. 671] L. R. A. CASES AS AUTHORITIES. 938 
 
 Equitable F. A M. Ins. Co. 2 Colo. App. 488, 31 Pac. 389, holding defense of in- 
 correct statement in policy of nature of insured's title rebutted by proof that facts 
 correctly stated to agent authorized to take application. 
 
 5 L. R. A. 673, NATIONAL PARK BANK v. GERMAN-AMERICAN MUT. 
 WAREHOUSING & SECUR. CO. 116 N. Y. 281, 26 N. Y. S. R, 675, 22 N. E. 
 567. 
 
 Action to hold trustee of corporation liable for debt in National Park Bank v. 
 Remsen, 158 U. S. 337, 39 L. ed. 1008, 15 Sup. Ct. Rep. 891, Affirming 43 Fed. 227. 
 Accommodation indorsements and guaranties by corporation. 
 
 Cited in Tod v. Kentucky Union Land Co. 57 Fed. 51; Lyon, P. & Co. v. First 
 Nat. Bank, 29 C. C. A. 47, 55^ U. S. App. 747, 85 Fed. 122; Park Hotel Co. v. 
 Fourth Nat. Bank, 30 C. C. A. 414, 58 U. S. App. 674, 86 Fed. 747 : Fox v. Rural 
 Home Co. 90 Hun, 368, 35 N. Y. bupp. 896; A. D. Farmer & Son Type- Founding 
 Co. v. Humboldt Pub. Co. 27 Misc. 316, 57 N. Y. Supp. 821; Carney v. Duniway, 
 35 Or. 138, 57 Pac. 192; Steiner v. Steiner Land & Lumber Co. 120 Ala. 140, 26 
 So. 494, denying power to become accommodation indorser unless such power ex- 
 pressly or incidentally conferred; Dobson v. More. 164 111. 115, 56 Am. St. Rep. 
 184, 45 N. E. 243, holding authority to make notes for corporation confers no 
 power to guarantee notes of third person; Humboldt Min. Co. v. American Mfg. 
 Min. & Milling Co. 10 C. C. A. 420.. 22 U. S. App. 334, 62 Fed. 361, denying power 
 to guarantee contract; Filon v. Miller Brewing Co. 38 N. Y. S. R. 603, 15 N. Y. 
 Supp. 57, denying power to guarantee lease; Thilmany v. Iowa Paper Bag Co. 108 
 Iowa, 338, 79 N. W. 68, holding guaranty of obligation in which national bank 
 has no interest, ultra vires; Chrystie v. Foster, 9 C. C. A. 609, 26 U. S. App. 67, 
 61 Fed. 554, holding funds of banking corporation not applicable to payment of 
 president's individual note; Bremen Sav. Bank v. Branch-Crookes Saw Co. 104 
 Mo. 437, 16 S. W. 209, holding corporation estopped by conduct inducing belief 
 that it has assumed debt, to deny liability on accommodation note : National 
 Bank v. H. P. Snyder Mfg. Co. 117 App. Div. 374, 102 N. Y. Supp. 478; Bacon 
 v. Montauk Brewing Co. 130 App. Div. 742, 115 N. Y. Supp. 617; Morris v. 
 Ernst Wiener Co. 65 Misc. 19, 119 N. Y. Supp. 163; Ellett-Kendall Shoe Co. v. 
 Western Stores Co. 132 Mo. App. 519, 112 S. W. 4, holding contract of guar- 
 anty by corporation ultra vires; Cook v. American Tubing & Webbing Co. 28 
 R I. 48, 9 L.R.A.(N.S.) 200, 65 Atl. 641; Deaton Grocery Co. v. International 
 Harvester Co. 47 Tex. Civ. App. 271, 105 S. W. 556, holding accommodation in- 
 dorsement of promissory note by corporation ultra vires; Carlaftes v. Goldmeyer 
 Co. 72 Misc. 76, 129 N. Y. Supp. 396, holding that accommodation indorsement 
 by corporation is ultra vires, though it takes security, in absence of charter 
 powers. 
 
 Cited in notes (27 L.R.A. 408) on power of agents to indorse negotiable paper; 
 (70 Am. St. Rep. 164) on contracts of guaranty of negotiable paper as ultra 
 vires. 
 
 Distinguished in Hess v. Sloane, 66 App. Div. 525, 73 N. Y. Supp. 313, sustain- 
 ing power to guarantee against loss, accommodation indorser of customer's note. 
 Xotlce of accommodation indorsement. 
 
 Cited in First Nat. Bank v. Weston. 25 App. Div. 419, 49 N. Y. Supp. 542, hold- 
 ing transferee of payee chargeable with notice of accommodation indorsement; 
 Jennings v. Kosmak, 20 Misc. 302, 45 N. Y. Supp. 802, holding indorsement on 
 note payable to and negotiated by maker presumptively for accommodation; 
 Smith v. Weston, 159 N. Y. 199, 54 N. E. 38, Affirming 88 Hun, 26, 34 N. Y. 
 Supp. 557, holding one taking note from maker must show prior indorsement 
 of partnership name authorized; Simmons Nat. Bank v. Dilley Foundry Co. 95 
 
939 L. R. A. CASES AS -AUTHORITIES. [5 L.R.A. 677 
 
 Ark. 372, 130 S. W. 162, holding that knowledge that note is in hands of one 
 joint maker to be negotiated for his benefit is sufficient notice that others signed 
 for accommodation; Deloria v. Atkins, 158 Mich. 237, 122 N. \V. 559, as to person 
 discounting note being chargeable with notice as to character of indorsement; 
 First Nat. Bank v. Gridley, 112 App. Div. 401, 98 N. Y. Supp. 445; Traders' 
 Nat, Bank v. Jones, 104 App. Div. 436, 93 N. Y. Supp. 768, as to when one pre- 
 sumptively an accommodation indorser; Willard v. Crook, 21 App. D. C. 240, 
 holding that defense of want of power of corporation to make accommodation 
 indorsement is unavailable, where party acting on faith of indorsement had not 
 notice of want of power. 
 
 Cited in footnote to Brown v. Pettit, 34 L. R. A. 723, which holds indorsement 
 of firm name on own note to firm by partner discounting it for own benefit, no- 
 tice of want of authority. 
 
 Cited in notes (2 L.R.A. (N.S.) 525) on taking note from maker or payee as 
 constructive notice of accommodation character of and lack of authority for in- 
 dorsement; (29 L.R.A. (N.S.) 361) on circumstances sufficient to put purchaser 
 of corporate accommodation negotiable paper on inquiry. 
 
 Distinguished in Re Troy & C. Shirt Co. 136 Fed. 433, where party who dis- 
 counted the notes knew the president and treasurer of the corporation who made 
 the notes were also members of the firm for whose accommodation the notes were 
 made. 
 Accommodation Indorser's liability. 
 
 Cited in Lincoln Nat. Bank v. Butler, 16 Misc. 567, 38 N. Y. Supp. 776, holding 
 bona fide holder with notice can recover from accommodation indorser; Willard 
 v. Crook, 21 App. D. C. 240, holding want of corporate power to indorse for accom- 
 modation no defense to action by holder without notice. 
 Authority of officers of corporation to execute contracts. 
 
 Cited in Johnson & K. Co. v. Longley Luncheon Co. 207 Mass. 55, 92 N. E. 1035, 
 holding that corporate check payable to creditor of individual, who is officer is 
 prima facie invalid; National Bank v. H. P. Snyder Mfg. Co. 107 App. Div. 97, 
 94 N. Y. Supp. 982, as to how far validity of note is established by signature 
 of the president and treasurer of a corporation. 
 
 Distinguished in George E. Lloyd & Co. v. Matthews, 223 111. 480, 7 L.R.A. 
 (N.S.) 379, 114 Am. St. Rep. 346, 79 N. E. 172, holding where a contract properly 
 executed for a corporation by its president is such as the corporation might 
 lawfully make, proof of the execution by the president is sufficient in the absence 
 of evidence that the contract was not made by the authority of the corporation. 
 
 5 L. R, A. 677, WALTON v. AGRICULTURAL INS. CO. 116 N. Y. 317, 22 N. E. 
 
 443. 
 Conditions affecting? policy. 
 
 Cited in England v. Westchester F. Ins. Co. of New York, 81 Wis. 591, 29 Am. 
 St. Rep. 917, 51 N. W. 954, holding policy void by premises remaining vacant and 
 unoccupied for ten days; Moore v. Niagara F. Ins. Co. 199 Pa. 52, 85 Am. St. Rep. 
 771, 48 Atl. 869, holding policy void on premises remaining vacant for a period 
 of ten days after having been occupied; Germania F. Ins. Co. v. Home Ins. Co. 144 
 N. Y. 198, 26 L. R. A. 592, 43 Am. St. Rep. 749, 39 N. E. 77, holding policy void 
 by sale to third party with whom partnership was former; Laclede Fire Brick 
 Mfg. Co. v. Hartford Steam Boiler Inspection & Ins. Co. 9 C. C. A, 10, 19 U. S. 
 App. 510, 60 Fed. 361, holding agent occasionally soliciting insurance cannot mod- 
 ify policy in any way. . 
 
 Cited in note (20 Am. St. Rep. 826) on construction of insurance policy. 
 
5 L.R.A. 677] L. R. A. CASES AS AUTHORITIES. 940 
 
 Pnrol evidence. 
 
 Cited in Providence Washington Ins. Co. v. Board of Education, 49 W. Va. 377, 
 38 S. E. 679, holding evidence of verbal agreement with agent to waive right of 
 insurer to repair or rebuild inadmissible; Evans v. Columbia F. Ins. Co. 40 Misc. 
 321, 81 N. Y. Supp. 933, holding parol evidence admissible to contradict repre- 
 sentation in policy as to amount of property insured; Dady v. O'Rourke, 172 N. Y. 
 453, 65 N. E. 273, denying admissibility of parol evidence to explain written con- 
 tract by showing intention to sell and buy only such stock as vendor had; Evan^ 
 v. Columbia F. Ins. Co. 40 Misc. 321, 81 N. Y. Supp. 933, holding parol evidence 
 cannot be received to vary contract of insurance; Johnson v. Continental Ins. 
 Co. 119 Tenn. 615, 107 S. W. 688, holding where an insurance policy and the 
 premium note given therefor provide for forfeiture of policy on nonpayment of 
 an installment of the premium parol evidence is inadmissible in an action on the 
 policy to show waiver of such provision at time of making contract; Dady 
 v. O'Rourke, 172 N. Y. 453, 65 N. E. 273, holding where a written contract pro- 
 vides for a sale of corporate stock to amount of three fifths of capital stock 
 parol evidence is inadmissible to show that the parties to the contract intended 
 that vendor should sell and the purchaser buy, only such stock as the former 
 held. 
 
 Cited in note (16 L.R.A.(N.S.) 1171, 1207) on parol-evidence rule as to vary- 
 ing or contradicting written contracts, as affected by doctrine of waiver or estop- 
 pel as applied to insurance policies. 
 
 5 L. R. A. 681, ANDRUS v. BOARD OF POLICE, 41 La. Ann. 697, 17 Am. St. 
 
 Rep. 411, 6 So. 603. 
 When taxpayer estopped. 
 
 Cited in Desmarais v. Board of Police, 42 La. Ann. 801, 8 So. 597, and Dupre v. 
 Board of Police, 42 La. Ann. 802, 8 So. 597, holding taxpayer estopped from ob- 
 jecting to special tax for improvement for which he petitioned and voted; New 
 Iberia v. Fontelieu, 108 La. Ann. 464, 32 So. 369, holding taxpayer liable on note 
 voluntarily made in payment for construction by town of sidewalk in front of his 
 premises; Preston v. Cedar Rapids, 95 Iowa, 79, 63 N. W. 577, holding petition 
 for improvement was intended for established grade and not for one superseded 
 by ordinance for which taxpayer petitioned; Vickery v. Hendricks County, 134 
 Ind. 556, 32 N. E. 880, holding taxpayer estopped from objecting to constitution- 
 ality of act by which he benefited; Cluggish v. Koons, 15 Ind. App. 607, 43 N. E. 
 158, holding taxpayer standing by and encouraging work done on street improve- 
 ment estopped to allege act under which work performed repealed; Burdin v. St. 
 Martin Parish, 127 La. 559, 53 So. 861, holding that taxpayer, who signs petition 
 asking for an election to vote on levying of special tax for public improvement, is 
 estopped from suing to declare it a nullity, although he did not vote. 
 
 Distinguished in Webster v. Police Jury, 52 La. Ann. 470, 27 So. 102, holding 
 petitioning taxpayer not estopped from questioning tax on ground of irregularity, 
 illegality, and fraud. 
 
 5 L. R. A. 682, LYNCH v. SELLERS, 41 La. Ann. 375, 6 So. 561. 
 Right to rescind contract. 
 
 Cited in Delmar Oil Co. v. Bartlett, 62 W. Va. 706, 59 S. E. 634, holding if 
 one party to a contract is compelled to abandon it because of the other's negli- 
 gence or improper interference he is excused from further performance, and may 
 recover for part performed. 
 
 Cited in note (30 L. R. A. 58) on right to rescind or abandon contract for 
 other party's failure 
 
941 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 690 
 
 Damages for breach of contract. 
 
 Cited in note (53 L. R. A. 75) on loss of proofs as element of damages for 
 breach of contract. 
 
 5 L. R. A. 684, CASE v. LOFTUS, 14 Sawy. 213, 39 Fed. 730. 
 Riparian owner's rights below high-water mark. 
 
 Cited in Kenyon v. Knipe, 46 Fed. 312, holding Federal question not raised by 
 grant of land on shore of navigable bay as to title below high-water mark; Baer 
 v. Moran Bros. Co. 2 Wash. 611, 27 Pac. 470, holding grant of land upon tide 
 water does not extend beyond high-water mark; Eisenbach v. Hatfield, 2 Wash, 
 248, 12 L. R. A. 640, 26 Pac. 539, holding littoral proprietor on shore of sea can- 
 not extend wharf below high-water mark; San Francisco Sav. Union v. R, G. R, 
 Petroleum & Min. Co. 144 Cal. 137, 66 L.R.A. 245, 103 Am. St. Rep. 72, 77 Pac. 
 823, 1 A. & E. Ann. Cas. 182, holding the fee to land between mean high-water 
 mark and low-water mark, where the tide ebbs and flows, on an ocean coast, 
 belongs to the state in which the abutting land is situate; Ferry Pass Inspectors' 
 
 6 Shippers' Asso. v. Whites River Inspectors' & Shippers' Asso. 57 Fla. 403, 
 22 L.R.A. (X.S.) 349, 48 So. 643, holding the exclusive rights of a riparian owner 
 are such as are necessary for the use and enjoyment of his abutting property and 
 business lawfully conducted thereon and these rights may not be so exercised as 
 to injure others in their lawful rights. 
 
 Cited in footnotes to St. Louis, I. M. & S. R. Co. v. Ramsey, 8 L. R. A. 559, 
 which holds title to land under navigable river in state; Webb v. Demopolis, 21 
 L. R. A. 62, which holds riparian owner's title extends to low-water mark on nav- 
 igable river; Farist Steel Co. v. Bridgeport, 13 L. R. A. 590, which requires com- 
 pensation to riparian owner on appropriation of land by city in establishing har- 
 bor lines; McBurney v. Young, 29 L. R. A. 539, which defines low-water mark as 
 ordinary low-water mark; Gilbert v. Eldridge, 13 L. R. A. 411, which authorizes 
 the separation from upland of riparian right to reclaim land under shallow water. 
 
 Cited in notes (8 L. R. A. 90) on title to soil below ordinary high-water mark; 
 (12 L. R. A. 638) on riparian rights; (40 L. R. A. 602) on right of owner of up- 
 land to access to navigable water; (45 L. R. A. 239) on title to land between 
 high-water and low-water marks. 
 Power of Congress over territories. 
 
 Cited in Higgins v Brown, 20 Okla. 399, 1 Okla. Crim. Rep. 75, 94 Pac. 703, 
 holding congress exercises the combined power of the national and state govern- 
 ments in territories; Coyle v. Smith, 28 Okla. 151, 113 Pac. 944, to the point 
 that tide lands upon admission of state to union belongs to state where not dis- 
 posed of prior to such admission. 
 
 Cited in note (1 L.R.A. (N.S.) 746) on federal grant of land under navigable 
 water in territories. 
 
 5 L. R. A. 690, FARGO v. MILLER, 150 Mass. 225, 22 N. E. 1003. 
 Time of ascertaining remaindermen. 
 
 Cited in Wood v. Bullard, 151 Mass. 335, 7 L. R. A. 309, 25 X. E. 67, holding 
 devise over after trust fund to wife, to testator's "heirs at law then surviving." 
 referred to survivors at time of wife's death; Codman v. Krell, 152 Mass. 217, 25 
 N. E. 90, holding remainder to children, or to their heirs if dying before life ten- 
 ant, as if they had survived, refers to heirs living at death of life tenant; Proctor 
 v. Clark, 154 Mass. 48; Peck v. Carlton, lf>4 -Mass. 234, 28 X. E. 166, holding re- 
 mainder to testators heirs at death of wife, as if testator had survived, referred 
 to heirs living at wife's death; Pollock v. Farnham, 156 Mass. 391, 31 X. E. 298, 
 holding remainders after death of testator's sister, under language of will did not 
 
5 L.R.A. 690j L. R. A. CASES AS AUTHORITIES. 942 
 
 vest until death of sister; Wason v. Ranney, 167 Mass. 160, 45 X. E. 85, holding 
 deed of life estate to land with remainder to grantor's heirs, referred to heirs at 
 grantor's death; Bigelow v. Clap, 166 Mass. 91, 43 N. W. 1037, holding that pro- 
 vision in will for division of residue at death of daughter among children of 
 nephews and nieces "then living" refers to time of death of such .daughter; Eager 
 v. Whitney, 163 Mass. 466, 40 N. E. 1046, holding directions for termination of 
 trust at certain date and distributions to legal representatives refer to represen- 
 tatives at date of distribution; Keniston v. Mayhew, 169 Mass. 169, 47 N. E. 612, 
 holding remainder to testatrix's kin after life estate to sister, to be determined 
 as of time of testatrix's death; Rotch v. Loring, 169 Mass. 200, 47 N. E. 660, hold- 
 ing life tenant entitled to share in remainder after life estate, as one of heirs liv- 
 ing at testator's death; Welch v. Brimmer, 169 Mass. 212, 47 N. E. 699, holding 
 that devise of estate on death of son without issue, to persons "who shall be" 
 testator's heirs, referred to heirs at son's decease; Heard v. Read, 169 Mass. 223, 
 47 N. E. 778, holding present tendency against absolute rules of construction, to 
 give effect to testator's intent; Hills v. Barnard, 152 Mass. 72, 9 L. R. A. 217, 25 
 N. E. 96, holding that issue of living issue of deceased parent do not take under 
 devise of parent's share to issue of any deceased legatee; Johnson v. Askey, 190 111. 
 63, 60 N. E. 76, contruing remainder after death of testator's only daughter with- 
 out issue, which was "to revert back" to testator's heirs, to go to heirs living at 
 daughter's death; Boston Safe Deposit & T. Co. v. Blanchard, 196 Mass. 40, 81 
 N. E. 654, holding estates arising under a will should be treated as vesting im- 
 mediately unless testator has manifested by clear language an opposite intent; 
 Sias v. Chase, 207 Mass. 375, 93 N. E. 802, holding that only those persons who 
 survive death of life tenant take where under will the fund does not take definite 
 form, with amount of it fixed, until after such death. 
 
 Cited in notes (33 L.R.A. (X.S.) 3, 16, 40, 51) on time for ascertaining who 
 take under gift over to testator's "heirs," "next of kin," etc.; (25 Eng. Rul. Cas. 
 613) on time of vesting of gift by will to such of a class as fulfill a certain condi- 
 tion; (25 Eng. Rul. Cas. 695) on time of vesting of contingency over to testator's 
 heirs or next of kin. 
 Who are next of kin and heirs. 
 
 Cited in Duffy v. Hargan, 62 N. J. Eq. 589, 50 Atl. 678, holding children of 
 deceased sister entitled to share with mother's brothers; Proctor v. Clark, 154 
 Mass. 48, 12 L. R. A. 724, 27 N. E. 673, holding under devise of remainder to 
 testator's brother if he survives life tenant, or, if deceased, to his "then heirs," 
 deceased brother's widow entitled to take widow's share under Massachusetts law ; 
 Codman v. Brooks, 167 Mass. 504, 46 N. E. 102, holding next of kin under United 
 States statute referred to those living at date of act of Congress. 
 
 Cited in notes (15 L.R.A. 300) on who are next of kin; (28 L.R.A. (N.S.) 481) 
 on right of persons claiming through, to participate with those standing in equal 
 degree of relationship with deceased relative, in provision for "next of kin," etc. 
 
 5 L. R. A. 693, CONROW v. LITTLE, 115 N. Y. 387, 22 X. E. 346. 
 Creditor's election of remedy. 
 
 Cited in Robb v. Vos, 155 U. S. 41, 39 L. ed. 62, 15 Sup. Ct. Rep. 4, holding 
 party who claimed proceeds of sale in hands of one acting as his attorney es- 
 topped to set aside sale; Garrett v. John V. Farwell Co. 102 111. App. 36, holding 
 party cannot insist that contract is in full force without abandoning suit brought 
 to rescind that contract; Thomas v. Watt, 104 Mich. 206. 62 X. W. 345, holding 
 that debtor, by suit against creditor to recover surplus above amount for which 
 property in bill of sale sold, elected to treat title as in creditor; Colvin v. Shaw, 
 79 Hun, 60, 29 N. Y. Supp. 644, holding election to relinquish right in mortgaged 
 
943 I" R. A. CASES AS AUTHORITIES. [5 L.R.A. 693 
 
 premises not established; Mills v. Parkhurst, 30 N. Y. S. R. 141, 9 X. Y. Supp. 
 109, holding that creditor seeking to set aside assignment of his debtor cannot 
 participate in distribution of assigned estate; Central Xat. Bank v. White, 47 N. 
 Y. S. R. 305, 19 N. Y. Supp. 820, holding election of remedies not shown; Carroll 
 v. Fethers, 102 Wis. 443, 78 N. W. 604, holding defendant in action for conversion 
 may set up former action to recover same money on implied contract showing 
 conversion waived; Johnson-Brinkman Commission Co. v. Missouri P. R. Co. 
 126 Mo. 351, 26 L. R. A. 842, footnote p. 840, 47 Am. St. Rep. 675, 28 S. W. 870, 
 holding mere commencement of attachment suit not binding election of remedy; 
 Smith v. Gilmore, 7 App. D. C. 201, holding that application to probate court by 
 original vendor of conditionally sold piano, to collect price from estate of vendee, 
 precludes recovering piano from purchaser at auction sale; Terry v. Munger, 121 
 N. Y. 167, 8 L. R. A. 219, 18 Am. St. Rep. 803, 24 N. E. 272, holding beginning 
 of action all that was necessary to show election of remedy; Hurst v. Trow Print- 
 ing & Bookbinding Co. 2 Misc. 365, 22 N. Y. Supp. 371, holding rescission of 
 agreement terminated it only as of time of notice of rescission and did not void 
 notes for work already performed under it; Brady v. Cassidy, 9 Misc. 114, 29 N. 
 Y. Supp. 45, holding complete delivery of goods waived by election to require 
 damages from nondelivery to be offset against price of goods received; Munson v. 
 Magee, 22 App. Div. 346, 47 N. Y. Supp. 942, holding that one who had taken risk 
 as to validity of his contract with a corporation cannot change his position upon 
 learning of its voidable position, so as to throw loss on third party; Genet v. 
 Delaware & H. Canal Co. 28 App. Div. 333, 51 N. Y. Supp. 377, holding that party 
 to contract waives right to terminate on ground of violation of conditions by 
 bringing action for breach ; Deitz v. Field. 10 App. Div. 429, 41 N. Y. Supp. 1087, 
 holding pledgeor, with knowledge of facts, who brings action for conversion 
 against pledgee after rehypothecation, bound by election of remedy; Marx v. Ci- 
 ancimino, 59 App. Div. 571, 69 N. Y. Supp. 672, holding commencement by as- 
 signee of action for conversion against sheriff, who has lived upon property under 
 attachment, estops him from asserting invalidity of levy; Droege v. Ahrens & O. 
 Mfg. Co. 163 N. Y. 470, 57 N. E. 747, holding that filing of verified proof of 
 claim with assignee of vendee with knowledge of latter's fraud amounts to affirma- 
 tion of sale by vendor ; Farmers' Loan & T. Co. v. Toledo & S. H. R. Co. 4 C. C. A. 
 569, 9 U. S. App. 469, 54 Fed. 766, holding that minority stockholder cannot take 
 personal judgment for value of stock, the beneficial ownership of which he in- 
 tended to retain ; Ke Linforth, 87 Fed. 390, holding creditor can obtain, in pending 
 bankruptcy proceeding, permission to foreclose, in state court, mortgage upon 
 part of bankrupt estate; A. C. Nellis Co. v. Nellis, 62 Hun, 68, 16 N. Y. Supp. 545, 
 holding that action can be brought for fraud in obtaining money after sale of 
 stocks hypothecated to secure it; Johnson-Brinkman Commission Co. v. Missouri 
 P. R. Co. 52 Mo. App. 414, holding that party with knowledge of facts, having 
 elected to ratify sale, cannot maintain replevin; Heidelbach v. National Park 
 Bank. 87 Hun, 126, 33 N. Y. Supp. 794, holding that plaintiff under contract 
 can sue one party for debt and at same time enforce right as owner of goods in 
 another's possession; Terry v. Munger, 121 N. Y. 169, 8 L. R. A. 219, 18 Am. St. 
 Rep. 803. 24 N. E. 272. holding sale of property by party, by virtue of very trans- 
 action which he seeks to treat as conversion by stranger, bar to action against lat- 
 ter; Schoenenmn v. Chamberlin, 55 App. Div. 355, 67 N. Y. Supp. 284, holding 
 vendor may maintain replevin against assignee of vendee for portion of goods, on 
 fraudulent sale, and action against vendee for balance on the contract; Hess v. 
 Smith, 16 Misc. 55, 37 X. Y. Supp. 635, holding action for conversion barred by 
 prior action on contract for same property; McXutt v. Hilkins, 80 Hun, 238. 
 29 N. Y. Supp. 1047, holding action for conversion, in which judgment was 
 
5 L.R.A. 693] L. R. A. CASES AS AUTHORITIES. 944 
 
 rendered for defendant, not bar to action between same parties for breach of 
 contract of sale; Davis v. Butters Lumber Co. 132 X. C. 239, 43 S. E. 650, deny- 
 ing creditor's right to disaffirm discounts after commencement of suit to recover 
 proceeds of drafts discounted; Re Hildebrant, 120 Fed. 996, holding filing of 
 claim with trustee election to affirm contract of sale, depriving creditor of right 
 to demand return of goods in bankrupt's possession; Genet v. Delaware & H. 
 Canal Co. 170 N. Y. 296, 63 X. E. 350 (dissenting opinion), majority holding that 
 judgment dismissing complaint does not bar action for same subject-matter be- 
 tween same parties unless on merits; Bramhall, Deane Co. v. International Mer- 
 cantile Marine Co. 145 Fed. 682, as to when remedies inconsistent; Board of 
 Education v. Day, 128 Ga. 165, 57 S. E. 359, as to doctrine of election between 
 inconsistent remedies; Davenport v. Walker, 132 App. Div. 99, 116 X. Y. Supp. 
 411; Clarke v. Mercantile Trust Co. 110 App. Div. 903, 95 X. Y. Supp. 1118, 
 holding election once made conclusive; Lomb v. Richard (45 Misc. 130, 91 X. 
 Y. Supp. 881, holding a cause of action for breach of contract cannot be joined 
 with one to rescind the contract for fraud; Parker v. Murphy, 56 Misc. 544, 
 107 X. Y. Supp. 202, holding where an insurance company, reserving the right 
 either to lapse a policy for nonpayment of premiums or to continue the policy in 
 force, elects to lapse it and the policy holder acting upon that election sends to 
 the company his check for the proportionate amount demanded on his premium 
 note, the company is bound by the election and cannot maintain an action to 
 recover full amount of note; Herbert v. Wagg, 27 Okla. 681, 117 Pac. 209, 
 holding that adoption of one of two conflicting remedies is conclusive; Hewitt v. 
 Hayes, 205 Mass. 364, 137 Am. St. Rep. 448, 91 X. E. 332, holding that adoption 
 of one course by claimant against bankrupt's estate where inconsistent remedies 
 exist is bar to pursuit of other remedy; Main v. Procknow, 131 Wis. 282, 111 
 N. W. 508, holding a buyer claiming a rescission of the contract of sale because 
 of breach by seller cannot at the same time claim damages growing out of the 
 breach; Pfeiffer v. Marshall, 136 Wis. 62, 116 X. W. 871, holding that purchasers 
 of land, by prosecuting to judgment an action for reformation of the contract,, 
 two years after learning that representations of the vendor were false, waived the 
 fraud and elected to stand on the contract; Babcock, C. & Co. v. Urquhart, 53 
 Wash. 174, 101 Pac. 713, holding doctrine of election of remedies has no applica- 
 tion where remedy chosen is not available, and a remedy is not available where 
 there is a good defense to it. 
 
 Cited in footnotes to Barndt v. Frederick, 11 L. R. A. 199, which holds conduct- 
 ing trial on theory suggested by court conclusive election of form of action; 
 Crompton v. Beach, 18 L. R. A. 187, which holds that conditional vendor's exercise 
 of option to enforce payment of note defeats right to retake property; Miller v. 
 Hyde, 25 L. R. A. 42, which holds replevin of horse not defeated by prior attach- 
 ment suit for trover; Walden Xat. Bank v. Birch, 14 L. R. A. 211, which hold* 
 recovery of judgment against bank cashier on note secured by bank stock not 
 bar to action on bond for misappropriating stock; Barchard v. Kohn, 29 L. R. A. 
 803, which holds lien of chattel mortgage on exempt property not waived by ob- 
 taining judgment on notes secured, and levying on mortgaged property. 
 
 Cited in notes (8 L. R. A. 218) on election of remedy for conversion; (13 L. R. 
 A. 91, 92) on what is conclusive evidence of election; (15 L. R. A. 90) on effect 
 of election of remedies in case of fraudulent purchase; (34 L.R.A.(X.S.) 315) on 
 bringing suit not prosecuted to judgment as election of remedies; (44 L. ed. 
 U. S. 1033) on effect of election of remedies in case of fraudulent purchase. 
 
 Distinguished in Henderson v. Bartlett, 32 App. Div. 440. 53 X. Y. Supp. 149, 
 holding action brought on original agreement with firm, for which an agreement 
 by member of firm has been substituted, not election of remedies; Grossman \. 
 
945 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 702 
 
 Universal Rubber Co. 127 X. Y. 37, 13 L. R. A. 94, 27 N. E. 400, holding proceed- 
 ings by attachment in another state not an election of remedies, but in affirmance 
 of sale, and not inconsistent with action on note; Crossman v. Universal Rubber 
 Co. 25 Jones & S. 468, 8 N. Y. Supp. 539, holding action cannot be maintained on 
 notes given in consideration for goods after contract of sale rescinded for fraud; 
 Water, Light & Gas Co. v. Hutchinson, 19 L.R.A.(X.S.) 220, 90 C.-C. A. 547, 160 
 Fed. 43, holding where plaintiff sued a city on an express contract for lighting 
 and was defeated, such suit did not constitute an election of remedies precluding 
 plaintiff from thereafter maintaining a suit on a quantum meruit for reasonable 
 value of the service rendered ; Central Xat. Bank v. White, 29 Jones & S. 273, 19 
 N. Y. Supp. 820. holding action by stockbrokers to recover from fiduciary on 
 discovering that he was acting for himself is not such an election as to render 
 them liable to principal whose money had been wrongfully invested by fiduciary. 
 Estoppel. 
 
 Cited in Burnham v. Burnham, 119 Wis. 516, 97 N. W. 176, holding one de- 
 prived of right to annul contract of settlement after affirmance of portion. 
 When lien established. 
 
 Cited in Jackson v. Xicol, 23 App. Div. 141, 48 N. Y. Supp. 974, holding priority 
 of third over second mortgage established, by execution of instrument in per- 
 formance of agreement to that effect. 
 
 Cited in footnote to Griggs v. Stone, 7 L. R. A. 48, which holds work done on 
 copper shells creates no lien on machines sold as complete without shells. 
 
 5 L. R. A. 696, RIGGS v. TREES, 120 Ind. 402, 22 N. E. 254. 
 Effect of delivery. 
 
 Cited in footnotes to Martin v. Flaharty, 19 L. R. A. 243, which holds manual 
 delivery of deed not essential; Cook v. Patrick, 11 L. R. A. 573, which holds de- 
 livery of deed to third person paying for property, sufficient delivery to grantees ; 
 Carter v. Moulton, 20 L. R. A. 309, which holds delivery of note to one joint maker 
 not an escrow. 
 
 Cited in notes (10 L. R. A. 469) on what constitutes escrow; (10 L. R. A. 471) 
 on remedy of parties in cases of escrow; (130 Am. St. Rep. 949) on escrows. 
 
 5 L. R. A. 698, GILLESPIE v. CAMPBELL, 39 Fed. 724. 
 Rigrhts of accommodation indorser. 
 
 Cited in Earle v. Enos, 130 Fed. 469, holding bank's knowledge of want of con- 
 sideration no defense to action against maker on accommodation note. 
 
 Cited in footnote to De Pauw v. Bank of Salem, 10 L. R. A. 46, which holds 
 one indorsing draft before delivery entitled to notice of dishonor. 
 
 Cited in notes (28 L.R.A.(N.S.) 1040, 1044, 1045) on rights inter se of accom- 
 modation parties to commercial paper; (4 Eng. Rul. Cas. 548) on presumptive 
 order of liability among accommodation indorsers. 
 
 5 L. R. A. 702, STUDER v. BLEISTEIX, 115 X. Y. 316, 22 N. E. 243. 
 Acceptance; effect of. 
 
 Cited in J. Thompson Mfg. Co. v. Gunderson, 106 Wis. 455, 49 L. R. A. 862, 82 
 X. W. 299; Smith v. Servis, 33 N. Y. S. R. 434, 11 X. Y. Supp. 301; Durbrow & 
 H. Mfg. Co. v. Cuming, 35 App. Div. 378. 54 X. Y. Supp. 818, holding that reten- 
 tion of goods manufactured under contract precludes recovery for discoverable 
 defects, in absence of collateral warranty: Schuchman v. Winterbottom, 26 Jones 
 
 6 S. 110, 9 X. Y. Supp. 733, holding nonconformity to contract no defense to 
 action for price where goods accepted: Carleton v. Jenks, 26 C. C. A. 268, 47 U. 
 S. App. 734, 80 Fed. 940, holding that acceptance of boiler precludes recovery for 
 
 L.R.A. Au. Vol. I. 0. 
 
5 L.R.A. 702] L. R. A. CASES AS AUTHORITIES. 946 
 
 nonperformance of contract, apparent on inspection; Meagley v. Hoyt, 125 N. Y. 
 773, 26 N. E. 719, raising, without deciding, question whether acceptance of tallow 
 precludes recovery for adulteration discoverable on inspection; Taylor v. Saxe, 
 134 N. Y. 68, 31 N. E. 258, holding acceptance of goods inferior to those ordered 
 precludes recovery; Smith v. Coe, 170 N. Y. 170, 63 N. E. 57, Affirming 55 App. 
 Div. 591, 67 N. Y. Supp. 350, holding no warranty, other than against latent 
 defects, survives acceptance of goods manufactured according to specifications; 
 Carleton v. Lombard, A. & Co. 149 N. Y. 151, 43 N. E. 422, Reversing 72 Hun, 
 261, 25 N. Y. Supp. 570, holding that implied warranty of freedom from latent 
 defects arising from process of manufacture survives acceptance; Still well, B. & S. 
 V. Co. v. Biloxi Canning Co. 78 Miss. 787, 29 So. 513, holding one retaining w r ar- 
 ranted machinery liable for purchase price, less damages for breach of warranty; 
 Hooper v. Story, 79 Hun, 55, 29 N. Y. Supp. 639, holding that collateral warranty 
 of capacity of machine, surviving acceptance, does not include visible defects; 
 Baylis v. Weibezahl, 42 Misc. 182, 85 N. Y. Supp. 355, denying that warranty 
 survives acceptance of tool when defects patent; Ideal Wrench Co. v. Garvin Macli. 
 Co. 92 App. Div. 202, 87 N. Y. Supp. 41, holding warranty does not survive 
 acceptance under contract to manufacture wrenches "equal to model;" Cherryvale 
 Water Co. v. Cherryvale. 65 Kan. 228, 69 Pac. 176, holding passage of ordinance 
 to buy waterworks with knowledge of unsanitary condition is bar to action to 
 deprive company of franchise; Redlands Orange Growers Asso. v. Gorman, 76 Mo. 
 App. 195 (dissenting opinion), majority holding that acceptance of goods de- 
 livered after time stipulated does not preclude recovery of damages for delay; 
 Mack v. Snell, 140 N. Y. 205, 37 Am. St. Rep. 534, 35 N. E. 493 (dissenting 
 opinion), majority holding owner delivering materials to be manufactured accord- 
 ing to sample not precluded by acceptance from claiming nonperformance. 
 
 Cited in footnote to Ontario Deciduous Fruit Growers' Asso. v. Cutting Fruit 
 Packing Co. 53 L. R. A. 681, which requires buyer to pay for fruit received under 
 contract, knowing full amount cannot be delivered. 
 
 Cited in notes (12 L.R.A. 399) on effect of acceptance of goods under contract 
 of sale; (35 L.R.A. (N.S.) 503) on acceptance of goods with knowledge of breach 
 of warranty as waiver; (115 Am. St. Rep. 257) on acceptance of work as waiver 
 of imperfect performance. 
 
 Distinguished in Zabriskie v. Central Vermont R. Co. 131 N. Y. 78, 29 N. E. 
 1006, Affirming 36 N. Y. S. R. 664, 13 N. Y. Supp. 735, holding warranty that 
 coal should correspond with sample survives acceptance; Hale Bros. v. Milliken, 
 142 Cal. 141, 75 Pac. 653. holding allegation that one party has performed con- 
 tract does not imply intention to release other from nonperformance. 
 Descriptive words as collateral warranty surviving; acceptance. 
 
 Cited in McLeod v. Andrews & J. Co. 116 111. App. 649; Staiger v. Soht, 116 
 App. Div. 877, 102 N. Y. Supp. 342; James v. Libby, 44 Misc. 215, 88 N. Y. 
 Supp. 812, holding an acceptance by the vendee of personal property manu- 
 factured under an executory contract of sale, after a full and fair opportunity 
 for inspection estops him, tn the absence of fraud, from thereafter raising an ob- 
 jection as to the visible defects and imperfections whether discovered or not, 
 unless such delivery and acceptance are accompanied by some warranty of quality 
 manifestly intended to insure acceptance; Lestershire Lumber & Box Co. v. W. 
 M. Ritter Lumber Co. 82 C. C. A. 527, 153 Fed. 574, holding a provision of an 
 executory contract for the sale of lumber that "it is understood that this stock 
 will be dry and in condition to work on arrival" if construed as a warranty, is 
 not one which survived the acceptance and retention of the lumber by the pur- 
 chaser, the condition of the lumber being obvious on inspection. 
 
947 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 709 
 
 Cited in note (25 L.R.A. (N.S.) 364) a8 to whether words constituting basis of 
 implied warranty of quality may be considered an express warranty. 
 
 Distinguished in Bull v. Bath Iron Works, 75 App. Div. 385, 78 N. Y. Supp. 
 181, holding contract to build vessel of certain speed contains warranty surviving 
 acceptance. 
 Warranty on sale by sample. 
 
 Cited in notes (70 L.R.A. 665) on warranty on sale of goods by sample; (29 
 L.R.A. (N.S.) 141) as to whether sale by sample excludes implied warranty other 
 than of conformity thereto. 
 
 5 L. R. A. 707, CADMAN v. MARKLE, 76 Mich. 448, 43 N. W. 315. 
 Recovery on quantum meralt. 
 
 Cited in Parker v. Macomber, 17 R. I. 679, 16 L. R. A. 861, 24 Atl. 464, holding 
 services might be recovered for on quantum meruit when entire contract pre- 
 vented by death of wife of party; Isham v. Parker, 3 Wash. 776, 29 Pac. 835, 
 holding promise to pay for services as attorney implied, notwithstanding special 
 agreement to pay for other services; Wright v. Broome, 67 Mo. App. 36, holding 
 that recovery on quantum meruit might be had for care of horses if failure to 
 sign contract not due to one performing services; McCurdy v. Dillon, 135 Mich. 
 682, 98 N. W. 746, holding where the only contract made between attorney and 
 client for the former's compensation was void, he was entitled to recover what 
 his services were reasonably worth; Wilmington v. Bryan, 141 N. C. 691, 54 S. E. 
 543 (dissenting opinion), as to when recovery can be had. 
 
 Cited in footnote to Hildebrand v. American Fine Art Co. 53 L. R. A. 826, 
 which sustains right to recover pro rata on entire contract of employment ter- 
 minated by employer for cause. 
 
 Cited in notes (5 L.R.A. (N.S.) 528) on recovery on quantum meruit by servant 
 discharged for cause; (5 L.R.A. (N.S.) 585) on what constitutes rescission of 
 contract of employment authorizing quantum meruit; (38 L.R.A. (N.S.) 1204) 
 on right of attorney to recover on quantum meruit for services rendered under 
 illegal or champertous contract; (16 Am. St. Rep. 793) on recovery on quantum 
 meruit on prevention of performance of contract. 
 
 Distinguished in Bristol v. Sutton, 115 Mich. 366, 73 N. W. 424, holding 
 promise to pay for services to third party within statute of frauds not implied 
 by knowledge and approval of services performed. 
 
 5 L. R. A. 709, STATE v. PENNOYER, 65 N. H. 113, 18 Atl. 878. 
 Validity of discriminating: statutes. 
 
 Cited in State v. Randolph, 23 Or. 86, 17 L. R. A. 473, 37 Am. St. Rep. 655, 
 31 Pac. 20 \_, upholding act which permits those practising medicine to take out 
 license without examination; Com. v. Wilson, 19 Pa. Co. Ct. 527, 6 Pa. Dist. R. 
 632, upholding exemption of certain classes from act regulating practice of medi- 
 cine; Re Day, 181 111. 81, 50 L. R. A. 522, 54 N. E. 646, holding act discriminating 
 between classes of law students in application for admission to bar invalid; 
 JEx parte Bohen, 115 Cal. 378, 36 L. R. A. 622, 47 Pa. 55, holding ordinance dis- 
 criminating as to persons who might inter in cemetery, invalid; State v. Aldrich. 
 ,70 N. H. 391, 85 Am. St. Rep. 631, 47 Atl. 602, holding statute forbidding per- 
 sons of over twelve years to ride bicycles on sidewalks valid; State v. Griffin, 
 39 N. H. 33, 41 L. R. A. 184, 76 Am. St. Rep. 139, 39 Atl. 260, holding statute 
 prohibiting throwing sawdust into lake valid, though local; Kennard v. Man 
 Chester, 68 N. H. 62, 36 Atl. 553, holding taxation of owner of real estate accord- 
 ing to net income from it void for inequality; Ricker's Petition, 66 N. H. 249, 
 
5 L.R.A. 709] L. R. A. CASES A& AUTHORITIES. 94S 
 
 24 L. R. A. 759, 29 All. 559, upholding women's right to apply for admission to 
 bar; Opinion of the Justices, 66 N. H. 631, 33 Atl. 1076, denying power of state 
 to take property of particular railroad company for public use on payment of 
 less than its value; State v. Jackman, 69 N. II. 330, 42 L. R. A. 440, 41 Atl. 347, 
 holding ordinance requiring snow and ice to be removed from sidewalk void for 
 inequality; State v. Mitchell, 97 Me. 74, 94 Am. St. Rep. 481, 53 Atl. 887, holding 
 statute exempting from license fee one who pays $25.00 in taxes on goods, and 
 requiring it of those paying less, void; State v. Cohen, 73 N. H. 545, 63 Atl. 928, 
 holding statute licensing dealers in junk valid; State v. Ramseyer, 73 N. H. 35, 
 58 Atl. 958, 6 A. & E. Ann. Gas. 445, holding statute prohibiting giving away 
 of trading stamps invalid; Opinion of Justices, 73 X. H. 632, 6 A. & E. Ann. Cas. 
 689, as to equal protection of laws guaranteed by federal constitution being 
 maintained in New Hampshire; Ex parte Whitley, 144 Cal. 176, 77 Pac. 879, 1 A. 
 
 6 E. Ann. Cas. 13, holding legislation presenting regulations under which only 
 those persons possessing proper qualifications shall be admitted to a practice or 
 calling requiring special skill is valid exercise of police power; Adams v. Missis- 
 sippi Lumber Co. 84 Miss. 28, 36 So. 68, holding statute imposing privilege tax 
 on each land, timber or mill company or individual providing the section shall 
 not apply to sawmill operators who do not ship timber or lumber out of state, 
 violates section of constitution declaring that taxation shall be equal and uniform 
 throughout state; Crane v. Chicago & W. I. R. Co. 233 111. 264, 84 N. E. 222 
 (dissenting opinion), as to the correct basis of classification. 
 
 Cited in footnotes to Noel v. People, 52 L. R. A. 287, which holds void an act 
 giving exclusive privilege to sell patent medicines to registered pharmacists; 
 State v. Bair, 51 L. R. A. 776, which sustains "statute requiring examination 
 before state board of examiners, five years practice, or certificate from medical 
 school, before practising medicine. 
 
 Cited in notes (14 L. R. A. 581) on constitutional equality of privileges, 
 immunities and protection; (21 L. R. A. 791) on constitutionality of statutes 
 restricting contracts and business. 
 
 Distinguished in Scholle v. State, 90 Md. 740, 50 L. R. A. 413, 46 Atl. 326, 
 upholding act exempting Army and Navy surgeons and consulting physicians 
 from other states from requirement as to license; State v. Sharpless, 31 Wash. 
 199, 96 Am. St. Rep. 893, 71 Pac. 737, sustaining act dividing barbers into classes 
 and operating equally upon each class. 
 
 Disapproved in State v. Bair, 112 Iowa, 470, 51 L. R. A. 778, 84 N. W. 532, 
 holding act requiring certain qualifications for practice of medicine valid. 
 
 5 L. R. A. 712, EASTMAN v. PROVIDENT MUT. RELIEF ASSO. 65 N. H. 176, 
 
 23 Am. St. Rep. 29, 18 Atl. 745. 
 Reformation of contracts. 
 
 Cited in Park Bros. & Co. v. Blodgett & C. Co. 64 Conn. 37, 29 Atl. 133, and 
 Ryder v. Ryder, 19 R. I. 191, 32 Atl. 919, holding equity will correct mistake in 
 use of terms not expressing parties' intention; Parish v. Camplin, 139 Ind. 14, 
 37 N. E. 607, holding equity will reform deed from body of which grantor's name 
 was omitted; Sparta School Twp. v. Mend ell, 138 Ind. 195. 37 N. E. 604, holding 
 equity will reform mistake in school teacher's contract executed in name of civil 
 township; Webb v. Hammond, 31 Ind. App. 618, 68 N. E. 916, refusing to reform 
 contract of settlement when contract not before court; Eustis Mfg. Co. v. Saco 
 Brick Co. 198 Mass. 219, 84 N. E. 449. holding equity will grant relief from a 
 mistake of fact and reform the contract to conform to intent of parties. 
 
 Cited in footnote to Bigham v. Madison, 47 L. R. A. 267, which authorizes 
 
49 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 710 
 
 rescission for mutual mistake as to location of boundary lines pointed out by 
 vendor. 
 
 Cited in notes in (11 L.R.A. (N.S.) 357) on reformation of insurance policy 
 for mistake of soliciting agent; (12 L.R.A. ( N.S. ) 908) on action on policy as 
 bar to action to reform it; (28 L.R.A. (X.S.) 832) on reformation for mistake 
 of law as to effect of instrument; (65 Am. St. Rep. 487; 37 L. ed. U. S. 457) on 
 reformation of contract in equity. 
 Effect of adoption of agent's act. 
 
 Cited in McDonald v. Metropolitan L. Ins. Co. 68 N. H. 5, 73 Am. St. Rep. 548, 
 38 Atl. 500, holding insurer, ratifying agent's unauthorized act, chargeable with 
 knowledge of facts; Perry v. Dwelling-House Ins. Co. 67 N. H. 296, 68 Am. St. 
 Rep. 668, 33 Atl. 731, holding agent's knowledge of facts, not stated in application 
 for insurance, binding upon insurer. 
 Delay excused by doubt as to l:i\v. 
 
 Cited in Hett v. Boston & M. R. Co. 69 N. H. 141, 44 Atl. 910, holding delay 
 in delivering goods where right to possession doubtful, until legal advice obtained, 
 not conversion. 
 
 5 L. R. A. 713, HABENICHT v. LISSAK, 78 Cal. 351, 12 Am. St. Rep. 63, 20 
 
 Pac. 874. 
 Supplementary proceedings. 
 
 Cited in Herrlich v. Kaufmann, 99 Cal. 275, 37 Am. St. Rep. 50, 33 Pac. 857, 
 holding that judgment creditor cannot maintain either garnishment proceeding 
 or bill in equity to reach debt due judgment debtor, where it is not shown that 
 statutory supplementary proceedings will not afford relief; Phillips v. Price, 153 
 Cal. 148, 94 Pac. 617, holding where a legal remedy is afforded by statute pro- 
 viding for proceedings supplementary to execution they must be pursued; Matte- 
 son & W. Mfg. Co. v. Conley, 144 Cal. 485, 77 Pac. 1042, holding them a substi- 
 tute for creditor's bill; Herrlich v. Kaufmann, 99 Cal. 275, 37 Am. St. Rep. 50, 
 33 Pac. 857, as to their being a substitute for creditor's bill. 
 Property subject to debts. 
 
 Cited in Re Hurlbutt, 68 C. C. A. 216, 135 Fed. 507; Sparhawk v. Yerkes, 
 142 U. S. 12, 35 L. ed. 917, 12 Sup. Ct. Rep. 104, holding a seat in the stock 
 exchange passes to assignees in bankruptcy subject to rules of stock board. 
 
 Cited in footnote to Cleveland Nat. Bank v. Morrow, 38 L. R. A. 758, which 
 holds perpetual scholarship in college in consideration of donation, not property 
 subject to payment of debts. 
 Appointment of receiver. 
 
 Cited in notes (72 Am. St. Rep. 40) as to when appointment of receiver is 
 proper; (10 Eng. Rul. Cas. 592) on right to appointment of receiver on inter- 
 locutory application in judgment creditor's suit. 
 
 5 L. R. A. 716, ALLEN v. SOUTH BOSTON R. CO. 150 Mass. 200, 15 Am. St. 
 
 Rep. 185, 22 N. E. 917. 
 Liability of corporations. 
 
 Cited in Beacon Trust Co. v. Souther, 183 Mass. 417, 67 N. E. 345, holding 
 corporation liable on note executed by president without authority, when proceeds 
 used in corporate business. 
 
 Cited in note (13 L. R. A. 193) on liability of corporation for misfeasance of 
 its officers. 
 For stock illegally issued. 
 
 Cited in First Avenue Land Co. v. Parker, 111 Wis. 8, 87 Am. St. Rep. 841, 
 
5 L.R.A. 716] L. K. A. CASES AS AUTHORITIES. 950 
 
 86 N. W. 604, holding corporation liable to bona fide purchaser of stock illegally 
 issued; Cincinnati, X. 0. & T. P. R. Co. v. Citizens' Xat. Bank, 56 Ohio St. 387 r 
 43 L. R. A. 786, 47 N. E. 249, holding corporation liable to bona fide purchaser 
 of stock fraudulently issued by proper officers; Citizens' Street R. Co. v. Robbing, 
 128 Ind. 461, 12 L. R. A. 502, 25 Am. St. Rep. 445, 26 X. E. 116, holding bona 
 fide purchaser not affected by illegality in surrender and cancelation of original 
 stock; Havens v. Bank of Tarboro, 132 X. C. 222, 95 Am. St. Rep. 627, 43 S. E. 
 639, holding bank liable to pledgee of cashier who fraudulently issued to himseli 
 certificates signed by president in blank; American Exchange Xat. Bank v. 
 Woodlawn Cemetery, 120 App. Div. 130, 105 X. Y. Supp. 305, holding liability 
 may be based upon the negligence of a corporation in failing to supervise and 
 inspect its records which would have disclosed that certificates of stock issued 
 were not issued in place of certificates surrendered. 
 
 Cited in notes (19 L.R.A. 331) on liability of corporation for fraud or forgery 
 of its officers in the issue of stock; (87 Am. St. Rep. 848, 851, 852, 858) on 
 fraudulent and over- issued corporate stock. 
 
 Distinguished in Farrington v. South Boston R. Co. 150 Mass. 409, 5 L. R. A. 
 850, 15 Am. St. Rep. 222, 23 X. E. 109, holding certificate of stock, fraudulently 
 issued by officer of corporation as security for personal debt, invalid; Dollar Sav. 
 Fund & T. Co. v. Pittsburg Plate Glass Co. 213 Pa. 311, 62 Atl. 916, 5 A. & E. 
 Ann. Cas. 248, holding where plaintiff loaned money on a certificate of stock ou 
 which signature of transfer agent was forged and it appeared that after the 
 certificate had been signed by president and secretary, and seal attached a clerk 
 forged the name of the transfer agent the certificate was not valid in hands of 
 such person. 
 When knowledge of agent impntable to principal. 
 
 Cited in Low v. Low, 177 Mass. 311, 59 X. E. 57, holding attorney's knowledge 
 of title imputable to mortgagee; Stanford v. A. F. Messick Grocery Co. 143 
 X. C. 425, 55 S. E. 815, holding where it would be against interest of agent to 
 disclose knowledge to principal such knowledge will not be imputed to principal ; 
 Foote v. Getting, 195 Mass. 61, 15 L.R.A. (X.S.) 697, 80 X. E. 600, holding where 
 an agent having the entire management of certain premises in behalf of the own- 
 ers thereof, and as incident to such management the power to pay taxes thereon 
 wrongfully appropriated the money of another to pay such taxes, the existence of 
 such agency of itself did not render owners chargeable with knowledge of the 
 fraud; Warren v. Hayes, 74 X. H. 357, 68 Atl. 193, holding principal not charge- 
 able with agent's knowledge in respect to a particular transaction, unless agent's 
 acts in respect thereto were within scope of his employment. 
 
 Cited in notes (10 L.R.A. 706) on notice to agent as notice to principal; (24 
 Am. St. Rep. 232; 21 Eng. Rul. Cas. 845) on imputing to principal notice to so- 
 licitor or agent. 
 Agent acting in adverse capacity. 
 
 Cited in Houghton v. Todd, 58 Xeb. 362, 78 X. W. 634, holding knowledge of 
 want of authority in agent acting in dual capacity, to guarantee contract, not 
 imputable to principal; Melms v. Pabst Brewing Co. 93 \Yis. 159, 57 Am. St. 
 Rep. 899, 66 X. W. 518, holding knowledge of defect in vendor's title by attorney 
 for both parties not imputable to vendee ; Alpha Mills v. Watertown Steam Engine 
 Co. 116 X. C. 802, 21 S. E. 917, holding knowledge of member dealing with 
 corporation not imputable to it; Stanford v. Coram, 26 Mont. 297, 67 Pac. 1005, 
 holding agent's knowledge of misappropriation of collateral, acquired while 
 acting antagonistically, not imputable to principal; Hodges v. Xalty, 113 Wis. 
 567, 89 X. W. 535, holding notice of revocation of subscription to member acting 
 adversely to rest of committee not notice to committee; First Xat. Bank v. 
 
951 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 716 
 
 Babbidge, 160 Mass. 566, 36 N. E. 462, upholding bank's right to recover from 
 accommodation maker of note for president's benefit, discounted at president's 
 request by cashier without knowledge of facts; National Bank of Commerce v 
 Feeney, 9 S. D. 556, 46 L. R. A. 734, 70 N. W. 874, holding bank not affected by 
 cashier's knowledge of infirmity of note discounted for him by discount com- 
 mittee; State Sav. Bank v. Montgomery, 126 Mich. 335, 85 N. W. 879, holding 
 knowledge of cashier discounting notes "for himself not imputable to bank; Union 
 Cent. L. Ins. Co. v. Robinson, 8 L.R.A.(X.S.) 886, 78 C. C. A. 268, 148 Fed. 360; 
 Lilly v. Hamilton Bank, 29 L.R, A. ( N.S. ) 558, 102 C. C. A. 1, 178 Fed. 57; Key- 
 ser v. Hinkle, 127 Mo. App. 75, 106 S. W. 98, holding doctrine that a principal 
 will not be permitted to enjoy the benefit from his agent's services and disclaim 
 responsibility for the consequences of his wrongful act by which the benefit was 
 conferred has no application where agent acts for himself, and adversely to in- 
 terest of principal; Dight v. Chapman, 44 Or. 279, 65 L.R.A. 799, 75 Pac. 585, 
 as to knowledge of agent not being imputed to principal when agent acts ad- 
 versely to interest of principal. 
 Agent committing fraud on bis own account. 
 
 Cited in Knobelock v. Germania Sav. Bank, 50 S. C. 290, 27 S. E. 962, holding 
 bank not chargeable with knowledge of president's intention to misappropriate 
 funds of which he was trustee; Gunster v. Scranton Illuminating Heat & Power 
 Co. 181 Pa. 336, 59 Am. St. Rep. 650, 37 Atl. 550, holding bank not chargeable 
 with knowledge of vice president of misappropriation by him of note of corpora- 
 tion for which he acted; Indian Head Xat. Bank v. Clark, 166 Mass. 30, 43 N. E. 
 912, holding knowledge cannot be imputed to bank of cashier's intention to em- 
 bezzle proceeds of note discounted by him; Bank of Overton v. Thompson, 56 
 C. C. A. 557, 118 Fed. 801, holding bank not chargeable with knowledge of 
 another's interest in deposit made by cashier; Henry v. Allen, 151 N. Y. 11, 
 36 L. R. A. 662, footnote, p.- 658, 45 N. E. 355, Reversing 77 Hun, 60, 28 N. Y 
 Supp. 242, holding knowledge of agreement made by agent to deposit, nullifying 
 legal effect of cashier's checks, not imputable to principal; Thomson-Houston 
 Electric Co. v. Capitol Electric Co. 12 C. C. A. 646, 22 U. S. App. 669, 65 Fed. 343, 
 Reversing 56 Fed. 852, holding lender not chargeable with knowledge of de- 
 fenses to bonds fraudulently pledged by agent; Hickman v. Green, 123 Mo. 176, 
 29 L. R. A. 44, 27 S. W. 440, holding principal not chargeable with agent's 
 knowledge of unrecorded deed collusively concealed; Newell v. Hadley, 206 Mass. 
 355, 29 L.R.A.(X.S.) 920, 92 N. E. 507 (dissenting opinion), on knowledge of 
 agent as imputable to principal, when acting criminally for his own benefit; 
 Brookhouse v. Union Pub. Co. 73 N. H. 374, 2 L.R.A.(N.S.) 999, 111 Am. St. 
 Rep. 623, 62 Atl. 219, 6 A. & E. Ann. Cas. 675, holding notice to treasurer was 
 not notice to corporation as to misapplication by treasurer of guardianship funds; 
 J. J. McCaskill Co. v. United States, 216 U. S. 514, 54 L. ed. 596, 30 Sup. Ct. 
 Rep. 386, holding that knowledge of fraud on part of officers, who are also 
 stockholders is to be imputed to corporation: Lilly v. Hamilton Bank, 29 L.R. A. 
 (N.S.) 565, 102 C. C. A. 1, 178 Fed. 57, holding that knowledge of officer of bank, 
 who offers to bank note which he had secured by fraud, but who was not present 
 while question of acceptance was discussed, is not imputable to bank. 
 Liability of person whose negligence made fraud possible. 
 
 Cited in Newman v. Scarborough, 115 La. 866, 112 Am. St. Rep. 278, 40 So. 
 248, holding where a person signing a guaranty thinks he is signing for a much 
 smaller sum there is error in the substance of the contract but creditor cannot be 
 made to suffer for error for which he is no no wise responsible and person who 
 committed the error must make good losses resulting therefrom; Merchants' & F. 
 Cotton Oil Co. v. Lufkin Nat. Bank, 34 Tex. Civ. App. 556, 79 S. W. 651, holding 
 
5 L .R.A. 716] L. R. A. CASES AS AUTHORITIES. 952 
 
 where a corporation authorized its secretary to attest and seal negotiable instru- 
 ments executed on its behalf, and such secretary attested a note which the corpo- 
 ration's treasurer had executed on which he had forged the signature of the 
 general manager who was required to sign notes to be negotiated by such 
 treasurer the genuine attestation of the signatures by corporation's secretary re- 
 lieved a bona fide purchaser from further inquiry. 
 
 Distinguished in Hill v. C. F. Jewett Pub. Co. 154 Mass. 178, 13 L. R. A. 195, 
 26 Am. St. Rep. 230, 28 N. E. 142, holding corporation permitting access by presi- 
 dent to certificates and seal not liable on forged certificates; Bangor Electric Light 
 
 6 Power Co. v. Robinson, 52 Fed. 522, holding that innocent purchaser for value 
 from one abstracting stock from common safety deposit box acquires no title. 
 Measure of damages for conversion. 
 
 Cited in footnotes to Woods v. Nichols, 48 L. R, A. 773, which holds measure 
 of recovery in trover by one retaining title as security for purchase price, limited 
 to balance due, less depreciation by use; Langford v. Rivinus, 33 L. R. A. 250, 
 which holds value of judgment at date of conversion measure of damages. 
 
 5 L. R. A. 720, DOLE v. SHERWOOD, 41 Minn. 535, 16 Am. St. Rep. 731, 43 
 
 N. W. 569. 
 Broker's right to commissions. 
 
 Cited in Baars v. Hyland, 65 Minn. 151, 67 N. W. 1148, holding owner not 
 liable for commissions where he personally effects sale, before agent, without ex- 
 clusive right to sell, notifies him of purchaser; Mullen v. Bower, 22 Ind. App. 
 302, 53 N. E. 790, holding owner not liable for commission where agent intro- 
 duces customer through unknown subagent with whom owner deals as if stranger, 
 and sells at lower price; Hill v. Jebb, 55 Ark. 576, 18 S. W. 1047, denying broker's 
 right to commissions on sale of property previously sold by owner; Owl Canon 
 Gypsum Co. v. Ferguson, 2 Colo. App. 232. 30 Pac. 255 (dissenting opinion), 
 majority holding broker entitled to commissions on sale of stock prior to sale by 
 owners, the latter having knowledge of such prior sale; Ingold v. Symonds, 125 
 Iowa, 85, 99 N. W. 713, holding agent not entitled to commission on sale of land 
 by owner, though agent had exclusive authority to find a purchaser; Mott v. Fer- 
 guson, 92 Minn. 203, 99 N. W. 804, holding broker authorized to secure a loan for 
 owner of real estate not entitled to commission where owner himself obtains the 
 loan before agent has found one ready, able and willing to do so. 
 
 Cited in note (2 Eng. Rul. Cas. 535) as to when agent's right to commissions 
 is earned. 
 
 Distinguished in Levy v. Rothe, 17 Misc. 403, 39 N. Y. Supp. 1057, holding 
 owner liable to commissions though personally finding purchaser, where broker, 
 having "sole agency to sell," finds purchaser within prescribed time. 
 Right of owner to sell land placed in hands of agent. 
 
 Cited in Woolf v. Sullivan, 224 111. 514, 79 N. E. 646, holding that owner may 
 sell real estate though he has placed it in hands of agent for sale: Hieronymus 
 v. Atterbury, 156 Mo. App. 616, 137 S. W. 617, holding that owner is liable for 
 commissions only to agent who first produces purchaser where property placed 
 with several agents for sale, no one having exclusive right. 
 
 Cited in note (24 L.R.A. (X.S.) 280) on broker's right to make sale as exclu- 
 sive of owner's. 
 Service of redemption notice. 
 
 Cited by mistake in Sterling v. Urquhart, 88 Minn. 499, 93 N. W. 898, holding 
 proof of service of redemption notice on one to whom lands assessed necessary in 
 action between owner of judgment and owner of land. 
 
953 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 724 
 
 5 L. R. A. 721, FOWLER v. SMITH, 31 S. C. 398, 10 S. E. 93. 
 
 Merger. 
 
 Cited in Fretwell v. Branyon, 67 S. C. 108, 45 S. E. 157, holding where a firm 
 held a fee-simp}e title to certain mortgaged lands, and the mortgage thereon was 
 assigned to a member of the firm, and the amount thereof was paid by the firm, 
 and mortgage was held by firm for some years, the mortgage was merged in the 
 legal title, the payment of the mortgage being part of the consideration for the 
 land, and it could not be enforced by assignee thereof. 
 
 5 L. R. A. 724, ELMER v. FESSENDEN, 151 Mass. 359, 22 N. E. 635, 24 N. E. 
 
 208. 
 
 Second appeal in 154 Mass. 427, 28 N. E. 299. 
 Admissibility of evidence. 
 
 Cited in Tasker v. Stanley, 153 Mass. 150, 10 L. R. A. 469, 26 N. E. 417, 
 holding plaintiff's statement that he is going to make as dirty a case as he can, 
 admissible in action for alienation of affections; Deveney v. Baxter, 157 Mass. 
 11, 31 N. E. 690, holding oral statements made at time of act admissible as part 
 of res gestce; Lawrence v. Wilson, 160 Mass. 307, 35 N. E. 858, holding declara- 
 tions of plaintiff's predecessor in title inadmissible in action of trespass; Zinn 
 v. Rice, 161 Mass. 574, 37 N. E. 747, holding evidence of inquiries by mercantile 
 agencies inadmissible in action for excessive attachment; Alabama & V. R. Co. 
 v. Brooks, 69 Miss. 185, 30 Am. St. Rep. 528, 13 So. 847, holding one's own asser- 
 tion that he believed owner took baggage, and then fraudulently sued for its 
 value, not conclusive in libel suit; Rogers v. Manhattan L. Ins. Co. 138 Cal. 292, 
 71 Pac. 348; Mutual L. Ins. Co. v. Hillmon, 145 U. S. 297, 36 L. ed. 711, 12 Sup. 
 Ct. Rep. 909, holding evidence of intention provable by statements in letters 
 written under unsuspicious circumstances; Cleaves v. Braman, 103 Me. 162, 68 
 Atl. 857, holding in an action for damages for obstructing plaintiff's easement of 
 a way with a fence the declarations of the guests at plaintiff's hotel made at 
 time of leaving tending to show that they left on account of the fence, admissible; 
 Peirson v. Boston Elev. R. Co. 191 Mass. 235, 77 N. E. 769, holding in proceedings 
 to recover damages to abutting property from construction and operation of 
 elevated railroad in street testimony of the keeper of a restaurant on the prem- 
 ises that on several occasions people who came there went out saying "we can't 
 talk here" etc. admissible; Western Travelers' Acci. Asso. v. Munson, 73 Xeb. 
 869, 1 L.R.A. (N.S.) 1074, 103 N. W. 688, holding statements of fact fairly in- 
 dicative of a relevant bodily condition of the declarant at time of the declaration 
 are admissible as evidence of the existence of such condition, although made 
 considerable time after injury was received; Hubbard v. Allyn, 200 Mass. 174, 86 
 X. E. 356, holding the plaintiff in an action of tort brought by a baker against 
 a member of a board of health to recover damages for the alleged publication of 
 a libel charging the plaintiff with using in his business "so called vanilla" con- 
 taining wood alcohol, in order to prove the extent of his damages may introduce 
 in evidence statements made by former customers in withdrawing their trade. 
 
 Questioned in Com. v. Trefethen, 157 Mass. 191, 24 L. R. A. 241, 31 N. E. 961, 
 holding evidence of declarations by deceased of intention to commit suicide ad- 
 missible in murder case. 
 Slander of title. 
 
 Cited in Squires v. Wason Mfg. Co. 182 Mass. 138, 65 X. E. 32, denying lia- 
 bility for slander of title of patent, made in good faith. 
 Libel and slander. 
 
 Cited in American Banana Co. v. United Fruit Co. 213 U. S. 358, 53 L. ed. 833, 
 
5 L.R.A. 724) L. R. A. CASES AS AUTHORITIES. 954 
 
 29 Sup. Ct. Rep. 511, 16 A. & E. Ann. Cas. 1047, as to liability of unauthorized 
 repetition of a slander. 
 
 Cited in footnote to Xissen v. Cramer, 6 L. R. A. 780, holding saying "that's 
 a lie," of material testimony, not actionable when spoken during trial. 
 
 Cited in note (9 L. R. A. 621) on libel and slander; libel defined. 
 
 Concurring; canoe of injury. 
 
 Cited in Hayes v. Hyde Park, 153 Mass. 516, 12 L. R. A. 250, 27 X. E. 522, 
 holding town not relieved of liability by co-operation of act of innocent traveler 
 with defect in highway, in causing injury; Stone v. Boston & A. R. Co. 171 Mass. 
 540, 41 L. R. A. 797, 51 X. E. 1, holding railroad company's negligence in 
 keeping oil on platform not concurrent with carelessness of man in dropping 
 lighted match. 
 Municipal law. 
 
 Cited in note (11 L. R. A. 548) on municipal law; limitation of province of, 
 as to enforcement of obligations. 
 
 5 L. R. A. 726, CAXTILLON v. DUBUQUE & X. W. R. CO. 78 Iowa, 48, 42 X. W. 
 
 613. 
 Power to issue railroad-aid bonds. 
 
 Cited in footnote to Wullenwaber v. Dunigan, 13 L. R. A. 811, which holds 
 petition signed by fifty freeholders necessary to authorize election to vote aid 
 to railway. 
 Effect of changre of railroad route. 
 
 Cited in Lowell v. Washington County R. Co. 90 Me. 94, 37 Atl. 869, holding 
 change in route of railroad does not affect liability of county on subscription to 
 stock, where charter of company, at time of subscription, provided for passage 
 of railroad through county only at "some point." 
 Consolidation of corporations. 
 
 Cited in Chevra Bnai Israel v. Chevra Bikur Cholim, 24 Misc. 190, 52 X. Y. 
 Supp. 712, holding agreement between presidents of distinct religious and benevo- 
 lent corporations to consolidate, unenforceable between parties where trustees 
 have not confirmed same nor supreme court assented. 
 
 Cited in note (52 L. R. A. 391) on right of corporations to consolidate. 
 Construction of corporate ri.tihts. 
 
 Cited in note (9 L. R. A. 34) on strict construction of grant of corporate right 
 or privilege. 
 
 5 L. R. A. 731, WESTMORELAXD & C. XATURAL GAS CO. v. DE WITT, 130 
 
 Pa. 235, 18 Atl. 724. 
 Nature and ownership of jajas and oil. 
 
 Cited in Ridgway Light & Heat Co. v. Elk County, 191 Pa. 469, 43 Atl. 323, 
 holding gas the property of owner of soil so long as in it or upon it, and 
 subject to taxation where not exempt as indispensably necessary to carry out 
 purposes for which public corporate owner organized; Gerkins v. Kentucky Salt 
 Co. 100 Ky. 735, 66 Am. St. Rep. 370, 39 S. W. 444, holding remaindermen entitled 
 to close wells opened by lessee of owner of life estate; Columbian Oil Co. v. 
 Blake, 13 Ind. App. 688, 42 X. E. 234. holding conveyance of gas and oil rights 
 by married woman alone, prohibited by statute forbidding conveyance of her 
 separate real estate except by deed in which husband joins; Marshall v. Mellon, 
 179 Pa. 374, 35 L. R. A. 819, 57 Am. St. Rep. 601, 36 Atl. 201, holding gas a 
 mineral; as such, a part of realty, and therefore incapable of primary disposition 
 by life tenant as against remaindermen, under lease, since effect is to give lessee 
 
955 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 731 
 
 right to dispose of freehold; Murray v. Allred, 100 Tenn. 115, 39 L. R. A. 252, 
 66 Am. St. Rep. 740, 43 S. W. 355, holding gas a mineral within reservation, 
 in deed, of all "minerals;" Williamson v. Jones, 39 W. Va. 257, 25 L. R. A. 233, 
 19 S. E. 436, holding oil a mineral, passing under judicial sale of real property; 
 Wagner v. Mallory, 169 N. Y. 505, 62 N. E. 584, holding title to oil does not vest 
 in lessee of well until pumped from ground and taken into possession; People's 
 Gas Co. v. Tyner, 131 Ind. 281, 16 L. R. A. 445, 31 Am. St. Rep. 443, 31 N. E. 59, 
 holding landowner not enjoined from exploding nitroglycerin in gas well, though 
 effect is to increase flow from adjoining lands into his well ; Jones v. Forest Oil 
 Co. 194 Pa. 383, 48 L. R. A. 750, 44 Atl. 1074, Affirming 30 Pittsb. L. J. N. S. 59, 
 holding use of suction pumps in oil well lawful, though flow in adjoining wella 
 decreased thereby; Greensburg Fuel Co. v. Irwin Natural Gas Co. 162 Pa. 85, 
 29 Atl. 274, holding right of insolvent corporation to take gas, and easements of 
 access, and machinery used in enjoying right, subject to fieri facias under act 
 April 7, 1870, P. L. 58, since they do not fall within exception in favor of "lands 
 held in fee;" Ohio Oil Co. v. Indiana, 177 U. S. 203, 44 L. ed. 737, 20 Sup. Ct. 
 Rep. 576, holding statute requiring the storage or confinement of escaping gas 
 or oil within two days after being struck valid regulation of property rights; 
 Townsend v. State, 147 Ind. 628, 37 L. R. A. 298, 62 Am. St. Rep. 477, 47 N. E. 
 19, holding statute prohibiting waste of natural gas by flambeau lights not uncon- 
 stitutional invasion of property rights; Kansas Natural Gas Co. v. Haskell, 172 
 Fed. 563, holding one who by lawful right reduces natural gas to possession has 
 an absolute right of property therein; Southern P. R. Co. v. San Francisco Sav. 
 Union, 146 Cal. 299, 70 L.R^A. 226, 106 Am. St. Rep. 36, 79 Pac. 961, 2 A. & E, 
 Ann. Cas. 962, holding railway does not acquire by condemnation proceedings 
 any title to oil beneath the surface; Test Oil Co. v. La Tourette, 19 Okla. 220, 
 91 Pac. 1025, as to subjection to control determining ownership in oil; Rockwell 
 v. Warren County, 228 Pa. 432, 139 Am. St. Rep. 1006, 77 Atl. 665, holding that 
 separate ownership of oil, gas and minerals constitutes interest or estate in 
 land; Rockwell v. Keefer, 39 Pa. Super. Ct. 476, holding where there is a sepa- 
 rate ownership of oil, gas and minerals in a tract of unseated land such mineral 
 right may be separately assessed for taxes; Hicks v. American Natural Gas Co. 
 207 Pa. 579, 65 L.R.A. 214, 57 Atl. 55, as to nature of possession of licensee; 
 Mclntosh v. Ropp, 233 Pa. 513, 82 Atl. 949, holding that oil and gas contained in 
 land are minerals; Farquharson v. Barnard Argue Roth Stearns Oil & Gas Co. 
 22 Ont. L. Rep. 338, to the point that separate ownership of oil or gas may con- 
 stitute interest or estate in land. 
 
 Cited in notes (16 L. R. A. 444; 25 L. R. A. 222, 223) on natural gas; (25 
 L.R.A. 227) on nature of interest in oil or gas lease; (44 L. ed. U. S. 730) on 
 property in petroleum or gas. 
 Injunction. 
 
 Cited in Duffield v. Rosenzweig, 144 Pa, 536, 23 Atl. 4, and Dufneld v. Hue, 
 136 Pa. 617, 20 Atl. 526, holding injunction proper remedy to prevent lessor, 
 who has taken possession of portion of leased premises for purpose of boring for 
 oil, from carrying out purpose; Cosmos Exploration Co. v. Gray Eagle Oil Co. 
 61 L. R, A. 236, 50 C. C. A. 84, 112 Fed. 8; California Oil & Gas Co. v. Miller, 
 96 Fed. 24; Erskine v. Forest Oil Co. 80 Fed. 585, holding bill to restrain 
 operation of oil well by solvent trespasser not entertained, being, in effect, bill 
 to obtain possession ; Hicks v. American Natural Gas Co. 207 Pa. 579, 65 L. R. A. 
 214, 57 Atl. 55, holding ejectment, not injunction, proper remedy to oust one 
 wrongfully entering under oil lease and erecting machinery; Consumer's Gas 
 Trust" Co. v. American Glass Co. 162 Ind. 397, 68 >'. E. 1020, holding a lessee, 
 under a lease giving it the exclusive right to draw gas from the demised tract 
 
5L.E.A. 731] L. R. A. CASES AS AUTHORITIES. 03C 
 
 has a proprietary interest in the tract including a part thereof over which a 
 railroad has acquired an easement for its right of way and may enjoin the sink- 
 ing of a gas well on such land thereby diminishing the flow of gas from its own 
 wells; Central Fuel Co. v. Wallace, 174 Ind. 726, 93 N. E. 65, holding that grantee 
 of portion of tract of land subject to right to drill two gas wells may enjoin sink- 
 ing of other wells; Griffiths v. Monongahela R. Co. 58 Pittsb. L. J. 12, 20 Pa. 
 Dist. R. 540, holding that upper owner may be enjoined from diverting water 
 from stream for purposes other than in connection with land; Duffield v. Rosen- 
 zweig, 22 Pittsb. L. J. N. S. 127, holding that equity will restrain lessor from 
 drilling wells in violation of rights of lessee and his assignee ; American Electrical 
 Works v. Varley Duplex Marget Co. 26 R. I. 296, 58 Atl. 977, 3 A. & E. Ann. Gas. 
 975, holding injunction will be granted to prevent removal of articles 'furnished 
 under contract although the contract could not be specifically enforced. 
 
 Distinguished in Bascom v. Cannon, 158 Pa. 230, 27 Atl. 968. dismissing bill 
 for injunction against interference with coal mine, where complainant's exercise 
 of rights under decree acquiesced in for number of years. 
 Provision for expiration of lease on breacb of condition. 
 
 Cited in Jones v. Western Pennsylvania Natural Gas Co. 146 Pa. 211, 23 Atl. 
 386, holding that stipulation in lease, for completion of well by lessee by certain 
 date, otherwise the lease to be "null and void," renewable only "by mutual con- 
 sent," creates merely option to avoid; Hukill v. Myers, 36 W. Va. 646, 15 S. E. 
 151; Duffield v. Michaels, 42 C. C. A. 653, 102 Fed. 823; Diamond Plate Glass Co. 
 v. Echelbarger, 24 Ind. App. 128, 55 N. E. 233; Steiner v. Marks, 172 Pa. 404, 
 33 Atl. 695, holding lessor precluded from asserting forfeiture where he has 
 misled lessee into default; Scranton R. Co. v. Scranton, 5 Lack. Legal News, 258, 
 enjoining interference with laying of tracks after date limited by ordinance for 
 completion of railway, where forfeiture not affirmatively enforced for years; 
 Verdolite Co. v. Richards, 7 Northampton Co. Rep. 119, refusing to declare for- 
 feiture of mining lease for failure to pay rent, w T here prior breaches waived and 
 no notice of future nonwaiver given; English v. Yates, 205 Pa. 108, 54 Atl. 503, 
 denying power of lessee to end lease by own default, thereby releasing sureties; 
 Steele v. Maher, 38 Pa. Super. Ct. 194, holding a clause in a lease that it shall 
 be null and void on failure of lessee to pay rent does not make lease void ipso 
 facto but may be enforced or waived by lessor; Myers v. Consumers' Coal Co. 
 15 Luzerne Leg. Reg. 156, holding that forfeiture of lease for nonpayment of rent 
 when due is waived if rent is subsequently accepted. 
 
 Cited in notes (31 L.R.A. 674, 675) on forfeiture of oil and gas lease; (26 Am. 
 St. Rep. 911, 912) on forfeiture of lease for breach of condition by lessee; (47 
 Am. St. Rep. .198) on waiver of forfeiture of lease; (15 Eng. Rul. Cas. 567) 
 on lessor's option to avoid lease on lessee's omission or commission of acts stipu- 
 lated for or against. 
 
 Distinguished in Diamond Plate Glass Co. v. Curless, 22 Ind. App. 353, 52 
 N. E. 182, holding lease for indefinite period, stipulating only for payment of 
 contingent rent at certain dates, runs merely from year to year, and is terminated 
 by nonpayment of rent; Harlan v. Logansport Natural Gas Co. 133 Ind. 330, 
 32 N. E. 930, holding lessee of right of way for gas pipes in consideration of 
 lessor's right to use gas free of charge may cut off lessor's supply where it appears 
 that, by mistake, pipes were not located on right of way over lessor's land; Vito 
 v. Birkel, 209 Pa. 209, 58 Atl. 127, holding where certain articles of agreement 
 for purchase of land provided for payment of installments on certain dates and 
 on default the vendee should forfeit the money already paid and vendor should 
 become entitled to possession, if any one of the installments was not paid as 
 
957 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 735 
 
 required the contract was rescinded and vendor was entitled to possession without 
 any affirmative act on his part. 
 Reservations to lessor. 
 
 Cited in Lynch v. Burford, 201 Pa. 55, 50 Atl. 228, holding lessee of gas 
 entitled to injunction against drilling of well by lessor within limits reserved to 
 him in lease "as a protection against fire." 
 
 Distinguished in Spillman v. Brown, 45 Fed. 294, holding lease "excepting 10 
 acres from the grant, upon which no wells shall be drilled without consent of 
 lessor," reserves to lessor right to drill thereon. 
 Municipal gas -works. 
 
 Cited in note (11 L. R. A. 730) on power of municipalities to make public 
 improvements. 
 "\\lmt are minerals. 
 
 Cited in Re Forestry Commission Leases, 28 Pa. Co. Ct. 148, expressing opinion 
 that ganister rock is mineral; Northern P. R. Co. v. Soderberg, 188 U. S. 535, 
 47 L. ed. 583, 23 Sup. Ct. Rep. 365, holding that lands valuable chiefly for granite 
 are "mineral lands;" State ex rel. Atkinson v. Evans, 46 Wash. 225, 10 L.R.A. 
 (N.S.) 1165, 89 Pac. 565, as to petroleum being mineral; Stone v. Providence 
 Gas & Water Co. 13 Pa, Dist. R. 558, as to water, gas and oil being minerals; 
 Hathorn v. Natural Carbonic Gas Co. 194 N. Y. 338, 23 L.R.A.(N.S.) 444, 128 
 Am. St. Rep. 555, 87 N. E. 504, 16 A. & E. Ann. Cas. 989, holding subterranean 
 waters are considered as "minerals" in respect to their use and enjoyment, irre- 
 spective of the character and quantity of salts and gases which may be in solu- 
 tion; Re Forestry Reservation Commission, 12 Pa, Dist. R. 422, holding ganister 
 rock a "mineral." 
 Construction of forfeitures. 
 
 Cited in Gerhart v. Miller, 25 Montg. Co. L. Rep. 178 ; Hornet v. Singer, 35 Pa. 
 Super. Ct. 495, holding the forfeitures to be construed strictly. 
 Costs. 
 
 Distinguished in Myers v. Alta Friendly Soc. 29 Pa. Super. Ct. 501, holding 
 where a beneficial association defends a suit against it for sick benefits on the 
 ground that the member had not furnished the association his own and a phy- 
 sician's certificate as required by the by-laws, and it appears that member had 
 furnished the certificate for one week's benefits, but not in time for subsequent 
 weeks for which he clainied and no tender for one week was made to the member 
 he was estopped to recover for one week's benefits and costs. 
 
 5 L. R. A. 735, MURRAY v. ST. LOUIS CABLE & W. R. CO. 98 Mo. 573, 14 Am. 
 
 St. Rep. 661, 12 S. W. 252. 
 Who are fellow servants. 
 
 Cited in Hall v. St. Joseph Water Co. 48 Mo. App. 364, holding foreman in 
 charge of gang vice principal; Parker v. Hannibal & St. J. R. Co. 109 Mo. 379, 
 18 L. R. A. 807, 19 S. W. 1119, holding trainmen and railroad section hands not 
 fellow servants when working independently under different foremen; Schlereth 
 v. Missouri P. R. Co. 115 Mo. 99, 21 S. W. 1110, holding engineer and track 
 repairer not fellow servants; Grattis v. Kansas City, P. & G. R. Co. 153 M... 
 396, 48 L. R. A. 405, 77 Am. St. Rep. 721, 55 S. W. 108, holding conductor, 
 engineer, and fireman on same train fellow servants; Olgesby v. Missouri P. R. 
 Co. 150 Mo. 180, 51 S. W. 758 (separate opinion), to proposition that conductor, 
 engineer, and rest of train crew are fellow servants: Warmington v. Atchison, T. 
 
 6 S. F. R. Co. 46 Mo. App. 170, holding brakeman in switch gang and engineer 
 of switch engine fellow servants; Card v. Eddy, 129 Mo. 519, 36 L. R. A. 809, 
 
5 L.R.A. 735] L. R. A. CASES AS AUTHORITIES. 958 
 
 28 S. W. 979, holding fireman delivering orders of roadmaster, fellow servant 
 with section foreman to whom delivered; Pike v. Chicago & A. R. Co. 41 Fed. 97, 
 holding bridge watchman not fellow servant with engineer and conductor of 
 train on same road; Coontz v. Missouri P. R. Co. 121 Mo. 659, 26 S. W. 661, 
 holding liability to conductor of train for injury resulting from defective engine 
 cannot be escaped on ground that engineer, a fellow servant, neglected to perform 
 his duty of inspection; Padgett v. Scullin-Gallagher Iron & Steel Co. 1(50 Mo, 
 App. 553, 140 S. W. 943, holding that operator of electric cage and electrician 
 who was engaged in cleaning grease from trolly wire in cage with gasolene were 
 fellow servants. 
 
 Cited in footnotes to Harrison v. Detroit, L. & N. R. Co. 7 L. R. A. 623, which 
 holds engineer, fireman, and assistant roadmaster fellow servants of section hand ; 
 Baltimore & O. R. Co. v. Andrews, 17 L. R. A. 190, which holds conductor and 
 engineer fellow servants of brakeman on other train; Clarke v. Pennsylvania Co, 
 17 L. R. A. 811, which holds section boss of one gang and member of another 
 gang fellow servants; Fisher v. Oregon Short Line & U. N. R. Co. 16 L. R. A. 
 519, which holds section foreman and conductor not fellow servants; Daniel v, 
 Chesapeake & 0. R. Co. 16 L.R.A. 383, which holds conductor and brakeman on 
 different trains not fellow servants; Palmer v. Michigan C. R. Co. 17 L. R. A. 
 637, which holds assistant roadmaster not fellow servant of gang of men working 
 under him. 
 
 Cited in notes (7 L. R. A. 503) on who are fellow servants; (50 L. R. A. 457) 
 on what servants are deemed to be in same common employment, apart from 
 statutes, where no questions as to vice principalship arise; (75 Am. St. Rep. 585} 
 on who is a vice principal. 
 
 5 L. R. A. 737, GALLAGHER v. NEW YORK & N. E. R, CO. 57 Conn. 442, 18 
 
 Atl. 786. 
 Duty to fence railroad track. 
 
 Cited in footnotes to Johnson v. Oregon Short Line R. Co. 53 L. R. A. 744, 
 which holds railroad company liable for horses killed on unfenced track; Donne- 
 gan v. Erhardt, 7 L. R. A. 527, which holds railroad company required to fence 
 track, if necessary to keep off obstructions; Atchison, T. & S. F. R. Co. v. Reesman, 
 23 L. R. A. 768, which holds company liable to brakeman for failure to maintain 
 fences, causing derailment; Gould v. Great Northern R. Co. 30 L. R. A. 590, which 
 requires railroad fences to be on outside margin of right of way; St. Louis, I. M. 
 
 6 S. R. Co. v. Ferguson, 18 L. R. A. 110, which holds railroad company not 
 liable for injury by barbed-wire fence to colt frightened from track by train 
 whistle; Rabidon v. Chicago & W. M. R. Co. 39 L. R. A. 405, which holds switch, 
 but a mile from depot, need not be fenced. 
 
 Cited in notes (12 L. R. A. 181) on duty of railroad company to fence its 
 tracks; (8 L. R. A. 135) on liability of railroad company for death or injury 
 to cattle by failure to fence; (9 L.R.A. (N.S.) 349) on duty of railroad to fence 
 right of way; (30 L.R.A. (N.S.) 1197) on duty of railroad to fence against 
 persons; (21 Am. St. Rep. 289) on duty of railroad company to animals on or 
 near track. 
 Question of fact or law. 
 
 Cited in Farrell v. Waterbury Horse R. Co. 60 Conn. 253, holding finding of 
 trial court on question of negligence, one of fact, not reviewable on appeal ; 
 Donovan v. Hartford Street R. Co. 65 Conn. 226, 29 L. R. A. 302, 32 Atl, 350 
 (dissenting opinion), majority holding finding of trial court as to negligence of 
 street railway constructing track so that person waiting to take car, is struck, 
 conclusive on appeal: Bates v. New York & N. E. R. Co. 60 Conn. 274, 22 Atl, 
 
959 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 744 
 
 538 (dissenting opinion), majority holding finding of trial court as to carrier's 
 negligence in failing to blow whistle pursuant to statute conclusive on appeal. 
 
 5 L. R. A. 743, OPP v. WACK, 52 Ark. 288, 12 S. W. 565. 
 Acknowledgment of debt barred by limitations. 
 
 Cited in Kelly v. Leachman, 3 Idaho, 673, 34 Pac. 813, holding parol evidence to 
 connect principal debt with interest which debtor promises to pay admissible to 
 take entire debt out of statute of limitations: Cotulla v. Urbahn, Tex. , 
 34 L.R.A. (X.S.) 349, 135 S. W. 1159, holding that acknowledgment in order to 
 take debt out of statute of limitations must specify debt if more than one exists. 
 
 Cited in footnotes to Krueger v. Krueger, 7 L. R. A. 72, which holds acknowl- 
 edgment, to remove limitation, must be clear and unconditional; Slaughter's 
 Succession, 58 L. R. A. 408, which holds bar of limitation not removed by ex- 
 pression of ability to pay debt, followed by part payment; Kleis v. McGrath, 
 69 L.R.A. 260, which holds barred note not revived by giving smaller note for 
 interest due without referring to earlier note. 
 
 Cited in notes (24 Am. St. Rep. 496) as to what acknowledgment will remove 
 bar of statute of limitations; (18 L.R.A. (N.S.) 224) on effect of giving check 
 to toll statute of limitations. 
 Running: of limitations. 
 
 Cited in Wilcox v. Wilcox, 139 Mich. 370, 102 N. W. 954, as to when statute 
 of limitations begins to run. 
 
 5 L. R. A. 744, McQUEENEY v. PHOENIX IXS. CO. 52 Ark. 257, 20 Am. St. Rep. 
 
 179, 12 S. W. 498. 
 Entire contract. 
 
 Cited in Higgins v. Gager, 65 Ark. 609, 47 S. W. 848, holding valid parol lease 
 for term rendered void and unenforceable where it contains void collateral stipu- 
 lation, the consideration payable under lease being entire; Reeder v. Meredith, 
 78 Ark. 117, 115 Am. St. Rep. 22, 93 S. W. 558, holding where a deed to 
 different tracts of land was based on the same consideration and was an entire 
 transaction and the conveyance was voidable as to certain of the lands the 
 entire deed was voidable. 
 For insurance. 
 
 Cited in Southern F. Ins. Co. v. Knight, 111 Ga. 635, 52 L. R. A. 74, 78 Am. 
 St. Rep. 216, 36 S. E. 821, holding insurance on both building and stock vitiated 
 by failure to take inventory of stock as provided by policy, the premium for whicli 
 is payable in gross sum; Phoenix Ins. Co. v. Public Parks Amusement Co. 63 
 Ark. 202, 37 S. W. 959, holding entire policy, apportioned to different items or 
 classes of property, void as to all where stipulation of sole ownership by insured 
 false as to some of property; Planters' Mut. Ins. Co. v. Loyd, 71 Ark. 294, 75 
 S. W. 725, denying husband's right to recover insurance on personal property 
 under policy also covering wife's land; Worley v. State Ins. Co. 91 Iowa, 153, 
 59 Am. St. Rep. 334, 59 N. W. 16, holding policy on house and barn not avoided 
 by vacation of house; Capital F. Ins. Co. v. Kaufman, 91 Ark. 318, 121 S. W. 
 289, as to contract of insurance being indivisible; Benham v. Farmers' Mut. 
 F. Ins. Co. 165 Mich. 418, L.R.A.(N.S.) , 131 N. W. 87, Ann. Cas. 1912C, 
 983, to the point that where premium is gross sum contract of insurance cover- 
 ing separate items should be considered as being entire. 
 
 Cited in footnotes to State Ins. Co. v. Schreck. 6 L. R. A. 524, which holds 
 policy separately valuing personalty and realty separable; Coleman v. New 
 Orleans Ins. Co. 16 L. R. A. 174, which holds policy for separate amounts on 
 storehouse and goods severable. 
 
5 L.R.A. 744] L. R. A. CASES AS AUTHORITIES. 960 
 
 Cited in notes (8 L. R. A. 834) on entire and severable contracts of fire in- 
 surance; (19 L. R. A. 213) on severability of insurance in same policy. 
 
 Distinguished in Clinton v. Norfolk Mut. F. Ins. Co. 176 Mass. 491, 50 L. R. A. 
 836, 79 Am. St. Rep. 325, 57 N. E. 998, holding sale of insured property with 
 reservation of life estate does not avoid policy stipulating against sale of entire 
 premises. 
 Vacancy of premise*. 
 
 Cited in Dwelling-House Ins. Go. v. Osborn, 1 Kan. App. 206, 40 Pac. 1099, 
 holding houses on adjoining lots, one of which is occupied by insured as resi- 
 dence, the other for cooking and general purposes, not vacant within meaning of 
 policy; Central Montana Mines Co. v. Fireman's Fund Ins. Co. 92 Minn. 229, 
 99 N. W. 1120, as to distinction between permanent and temporary cessation 
 of operations in factories in regard to warranty against vacancy. 
 
 Cited in footnote to Henderson Trust Co. v. Stuart, 48 L. R. A. 49, which 
 holds executor liable for loss of insurance from failure to apply for extension of 
 vacancy permit. 
 
 Cited in note (9 L. R. A. 81) on condition against vacancy and nonoccupancy. 
 
 5 L. R. A. 746, HARRISON v. N1COLLET NAT. BANK, 41 Minn. 488, 16 Am. 
 
 St. Rep. 718, 43 N. W. 336. 
 Nature of checks and drafts. 
 
 Cited in Estes v. Levering Shoe Co. 59 Minn. 508, 50 Am. St. Rep. 424, 61 
 N. W. 674, holding statute relating to "promissory notes or bills of exchange" 
 applicable to checks; Fidelity & D. Co. v. National Bank, 48 Tex. Civ. App. 305, 
 106 S. W. 782, holding that instrument directing bank to pay not exceeding 
 certain sum on failure of drawer to comply with certain contract is not check. 
 
 Cited in notes (7 L. R. A. 595) on banking check; (23 L. R. A. 173) on the 
 nature of drafts by one bank on another. 
 Liability of bank to depositor. 
 
 Cited in Peabody v. Citizens' State Bank, 98 Minn. 307, 108 N. W. 272. 
 on nature of bank's liability to depositor and its duty to pay only upon demand 
 at bank during banking hours. 
 
 5 L. R. A. 748, McMAHON v. GRAY, 150 Mass. 289, 22 N. E. 923. 
 
 Dower rights. 
 
 Cited in Smith v. Shaw, 150 Mass. 298, 22 N. E. 924, holding widow without 
 estate in lands of deceased husband, before assignment of dower; Flynn v. Flynn, 
 171 Mass. 314, 42 L. R. A. 99, 68 Am. St. Rep. 427, 50 N. E. 650, holding dower 
 interest does not attach to fund received for public use of lands, on contingency 
 of wife's surviving husband; Latourette v. Latourette, 52 App. Div. 194, 65 N. Y. 
 Supp. 8, holding unassigned dower right attachable; Fletcher v. Tuttle, 97 Me. 
 496, 54 Atl. 1110; Harper v. Clayton, 84 Md. 350, 35 L. R, A. 212, 57 Am. St. 
 Rep. 407, 35 Atl. 1083, holding unassigned right of dower not subject to creditor's 
 bill; Stewart v. Tennant, 52 W. Va. 578, 44 S. E. 223 (dissenting opinion), ma- 
 jority holding that widow has interest in oil taken from land by heir before 
 assignment of dower; Neal v. Davis, 53 Or. 432, 99 Pac. 69, holding the dower 
 interest of a widow while unassigned is a mere right of action and she cannot 
 convey to another any vested legal right in the land. 
 
 Cited in footnote to Kursheedt v. Union Dime Sav. Inst. 7 L. R. A. 229, hold- 
 ing dower right of wife of defendant in foreclosure of mortgage given by his 
 grantor, not cut off when wife and grantor not served. 
 
 Cited in notes (23 L. R. A. 647) on right of dower as subject to attachment 
 
961 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 750 
 
 or levy on execution; (63 L. R. A. 698) on equitable remedy to subject unassigned 
 dower to judgment after return of no property found. 
 Descent of property. 
 
 Cited in Eastham v. Barrett, 152 Mass. 58, 25 N. E. 33, holding that statutory 
 estate given husband descends to his heirs although not assigned during life; 
 Proctor v. Clark, 154 Mass. 49, 12 L. R. A. 724, 27 N. E. 673, holding widow 
 "heir" of husband under Stat. 1880, chap. 211. 
 
 5 L. R. A. 750, GOODRICH v. NEW YORK C. & H. R. R. CO. 116 N. Y. 398, 
 
 26 N. Y. S. R. 767, 15 Am. St. Rep. 410, 22 N. E. 397- 
 Master's duty as to servant's safety. 
 
 Cited in Millott v. New York & N. E. R. Co. 46 N. Y. S. R. 146, 19 N. Y. Supp. 
 122, sustaining judgment where brakeman's arm was crushed because one draw- 
 head was lower than the one opposite; Renninger v. New York C. & H. R. R. Co. 
 
 11 App. Div. 580, 42 N. Y. Supp. 813 (dissenting opinion), to point that pin, 
 driven too tightly into coupling link, was defective appliance; Bennett v. Green- 
 wich & J. R. Co. 84 Hun, 217, 32 N. Y. Supp. 457, holding defendant's negli- 
 gence question for jury, bumpers being of different heights and crooked links 
 not furnished; Donohue v. Brooklyn City R. Co. 38 N. Y. S. R. 486, 14 N. Y. 
 Supp. 639, upholding recovery where bumpers were of different heights; Rigdon 
 v. Allegany Lumber Co. 37 N. Y. S. R. 517, 13 N. Y. Supp. 871, holding it ques- 
 tion for jury whether lumber stalls were properly constructed; Quill v. Empire 
 State Teleph. & Teleg. Co. 92 Hun, 545, 37 N. Y. Supp. 1149, Affirming 13 Misc. 
 441, 34 N. Y. Supp. 470, holding telephone company responsible for negligent 
 setting of insulator; Meyers v. Illinois C. R. Co. 49 La. Ann. 28, 21 So. 120, up- 
 holding recovery where defendant's warning of defects was by notice not readily 
 decipherable; Texas & P. R. Co. v. Archibald, 170 U. S. 670, 42 L. ed. 1190, 18 
 Sup. Ct. Rep. 777, requiring employer to use reasonable care to see that its own 
 and other cars are fit to use; Costikyan v. Rome, W. & O. R. Co. 58 Hun, 592, 
 
 12 N. Y. Supp. 683, holding carrier owes passenger duty of furnishing cars 
 equipped with safe and suitable appliances; Sutter v. New York C. & H. R. R. 
 Co. 79 App. Div. 367, 79 N. Y. Supp. 1106, holding company liable for death 
 from collision due to failure to provide chimney for headlight. 
 
 Cited in footnotes to Neeley to Southwestern Cotton Seed Oil Co. 64 L.R.A. 
 146, holding refusal to submit to jury question of master's negligence in furnish- 
 ing defective ladder used in adjusting belt, error; Crawford v. United R. & E. 
 Co. 70 L.R.A. 489, which holds street car company liable for injury to employee 
 by defect in car due to custom in leaving it for several hours of night in public 
 street after inspection, without rule or regulation for guarding from negligent 
 or wanton injury. 
 
 Cited in notes (41 L.R.A. 131) on qualification of employer's liability by 
 servant's duty to acquaint himself with his environment; (75 Am. St. Rep. 599; 
 98 Am. St. Rep. 307; 37 L. eel. U. S. 728) on duty of master as to machinery 
 and appliances; (116 Am. St. Rep. 112) on presumption of exercise of care in 
 furnishing safe machinery and appliances. 
 
 Distinguished in McFarland v. New York C. & H. R. R. Co. 9 App. Div. 
 629, 41 N. Y. Supp. 525, reversing judgment for plaintiff where defect was not 
 sole cause of injury; Edall v. New England R. Co. 18 App. Div. 217, 79 N. Y. S. R. 
 960, 45 N. Y. Supp. 959. holding company not liable where drawheads met end, 
 although not on a level; Ellsbuiy v. N<-w York, N. H. & H. R. Co. 172 Mass. 131, 
 70 Am. St. Rep. 248, 51 N. E. 415, holding master not liable for injury to inex- 
 perienced servant in trying to couple cars with defective apparatus. 
 L.R.A. Au. Vol. I. 61. 
 
5 L.R.A. 750] L. R. A. CASES AS AUTHORITIES. 962 
 
 Duty to inspect. 
 
 Cited in McDonald v. Fitchburg R. Co. 19 App. Div. 578, 46 N. Y. Supp. 
 600, holding company responsible for defects discoverable by ordinary inspection; 
 Albert v. New York C. & H. R. R. Co. 80 Hun, 155, 61 N. Y. S. R. 709.. 29 N. Y. 
 Supp. 1126, holding company's duty of inspection of cars measured by the danger; 
 Jennings v. New York, N. H. & H. R. Co. 12 Misc. 410, 33 N. Y. Supp. 585 ? 
 holding that brakeman, after cars have been repaired and inspected, may assume 
 them safe to handle; Eaton v. New York C. & H. R. R. Co. 163 N. Y. 394, 79 
 Am. St. Rep. 600, 57 N. E. 609, holding rule requiring brakemen or trainmen 
 to inspect does not relieve company; St. Louis, I. M. & S. R. Co. v. Brown, 67 
 Ark. 307, 54 S. W. 865; Mackey v. Baltimore & P. R. Co. 8 Mackey, 300; Balti- 
 more & P. R. Co. v. Mackey, 157 U. S. 91, 39 L. ed. 631, 15 Sup. Ct. Rep. 491; 
 Bennett v. Northern P. R. Co. 2 N. D. 115, 13 L. R, A. 467, 49 N. W. 408, 
 holding employer bound to inspect foreign cars on its line, as well as its own ; 
 Missouri, K. & T. R. Co. v. Chambers, 17 Tex. Civ. App. 491, 43 S. W. 1090, 
 holding company bound to inspect inside of foreign car if outside inspection gives 
 notice of probable defect there; Alabama G. S. R. Co. v. Carroll, 28 C. C. A. 222, 
 52 U. S. App. 442, 84 Fed. 787, as to servant's negligence in failure to inspect, 
 when so required by rules of master; Felton v. Bullard, 37 C. C. A. 5, 94 Fed. 
 785, holding master liable, independent of statute, for negligence in inspection ; 
 Curtis v. Chicago & N. W. R. Co. 95 Wis. 468, 70 N. W. 665, holding defendant 
 responsible for not keeping guard rail properly blocked; McGuire v. Bell Telcph. 
 Co. 167 N. Y. 221, 52 L. R. A. 442, 60 N. E. 433 (dissenting opinion), majority 
 holding that company using leased telephone pole owes lineman duty of inspec- 
 tion; Renninger v. New York C. & H. R. R. Co. 11 App. Div. 578, 42 N. Y. Supp. 
 813 (dissenting opinion), as to duty to inspect foreign car; Kiley v. Rutland 
 R, Co. 80 Vt. 547, 68 Atl. 713, 13 A. & E. Ann. Caa. 269, holding a car inspector 
 is not a fellow servant of the conductor of a train but is intrusted with a duty 
 resting on the railroad company which it cannot delegate so as to relieve itself 
 from liability for nonperformance; Missouri, K. & T. R. Co. v. Harris, 45 Tex. 
 Civ. App. 546, 101 S. W. 506, holding a railroad company owes to trainmen the 
 same duty of inspecting all cars in its train whether they belong to it or to 
 another company. 
 
 Cited in footnote to Budge v. Morgan's L. & T. R. & S. S. Co. 58 L. R. A. 333, 
 which holds master failing to inspect foreign cars liable for consequences of 
 defects discoverable by ordinary inspection. 
 
 Cited in notes (41 L.R.A. 103) on employer's duty as to supervision of ap- 
 pliance not owned by him, but used by his servants; (1 L.R.A. (N.S.) 670) 
 on negligence of servant in sending out unsafe street cars causing injury to 
 other servants. 
 Risks of employment assumed. 
 
 Cited in Berrigan v. New York, L. E. & W. R. Co. 131 N. Y. 585, 30 N. E. 57, 
 holding carelessness of engineer in backing engine upon freight cars, risk assumed 
 by brakeman; Hannigan v. Lehigh & H. R. R. Co. 157 N. Y. 249, 51 N. E. 992, 
 holding meeting of drawheads an ordinary risk of brakeman's service; Eaton 
 T. New York C. & H. R. R. Co. 14 App. Div. 25, 43 N. Y. Supp. 666, holding defect 
 not discoverable by reasonable inspection, a risk of employment; Union Stock- 
 Yards Co. v. Goodwin, 57 Neb. 142, 77 N. W. 357, holding that servant assumes 
 only same risk as to other cars as he does with his master's. 
 
 Cited in footnote to Neeley v. Southwestern Cotton Seed Oil Co. 64 L.R.A. 
 146, which holds employee's contributory negligence in using defective ladder 
 to adjust belt upon moving machinery after complaining of the risk, one for 
 the jury. 
 
963 L. R. A. CASES AS AUTHORITIES. [5 L.RJL 756 
 
 Distinguished in Cleary v. Long Island R. Co. 54 App. Div. 289, 66 N. Y. 
 Supp. 568, holding that brakeman attempting to couple after seeing danger 
 assumes the risk; Gerstner v. New York C. & H. R. R. Co. 81 App. Div. 565, 
 80 N. Y. Supp. 1063, denying recovery for injuries due to part of car giving way 
 when mounted by brakeman to stop it on "cripple track;" Arnold v. Delaware 
 & H. Canal Co. 125 N. Y. 17, 25 N. E. 1064, holding that brakeman engaged in 
 removing crippled cars takes risk of injury from broken drawheads; Thomas v. 
 Missouri P. R. Co. 109 Mo. 216, 18 S. W. 980 (dissenting opinion), majority 
 holding that switchman and coupler assume risk of coupling all cars in good 
 order. 
 Contributory negligence. 
 
 Cited in Mahoney v. New York C. & H. R. "R. Co. 39 N. Y. S. R. 912, 15 N. Y. 
 Supp. 501, sustaining recovery for death of brakeman killed through absence of 
 bumper; Joyce v. Rome, W. & O. R. Co. 80 Hun, 601, 61 N. Y. S. R. 586, holding 
 question of contributory negligence, in case of defective appliances, for jury; 
 Ohio & M. R. Co. v. Wangelin, 43 111. Rep. 335, upholding recovery where brake- 
 man could not notice defect until cars were nearly together; Memphis & C. R. 
 Co. v. Graham, 94 Ala. 553, 10 So. 283, holding going between moving cars to 
 couple, in absence of rule forbidding it, not necessarily contributory negligence; 
 Murphy v. Baltimore & O. S. W. R. Co. 114 Ky. 702, 71 S: W. 886, holding 
 under facts question of contributory negligence was for jury. 
 
 Cited in note (11 L. R. A. 131) on right of self protection as affecting contribu- 
 toiy negligence. 
 
 5 L. R. A. 752, McGUIRE v. RAPID CITY, 6 Dak. 346, 43 N. W. 706. 
 Certificate of completion of contract. 
 
 Cited in Seim v. Krause, 13 S. D. 535, 83 N. W. 583, holding bona fide appraise- 
 ment of architect as to value of alteration, conclusive. 
 
 Cited in note (17 L. "R. A. 212) on collusiveness of engineer's certificate. 
 3Iunicipal powers an to public works. 
 
 Cited in Kramer v. Los Angeles, 147 Cal. 676, 82 Pac. 334, holding general 
 power to construct and maintain streets is sufficient to authorize city to con- 
 struct sewer to carry off storm waters. 
 City engineer. 
 
 Cited in Martindale v. Rochester, 171 Ind. 261, 86 N. E. 321, on validity of 
 contract for street improvement containing delegation of power to city engineer. 
 
 5 L. R. A. 756, GAITHER v. WILMER, 71 Md. 361, 7 Am. St. Rep. 542, 18 
 
 Atl. 590. 
 Rules as to sealed verdicts. 
 
 Cited in Farmer's Packing Co. v. Brown, 87 Md. 14, 39 Atl. 625, holding sealed 
 verdict may be corrected by jury at any time before recorded. 
 
 Cited in footnotes to Kramer v. Kister, 44 L. R. A. 432, which requires dis- 
 charge of jury on one juror's dissent from sealed verdict; Hechter v. State, 56 
 L. R. A. 457, which holds sealed verdict of guilty on some counts of indictment 
 not invalidated by adding not guilty as to others, before recording. 
 Validity of general verdict in action for damages. 
 
 Cited in Sonnesyn v. Akin, 14 N. D. 261, 104 N. W. 1026, holding general 
 verdict, in action for damages, finding for plaintiff but without fixing damages, 
 fatally defective. 
 Effect of uncertainty in verdict. 
 
 Cited in Long v. Wayne Circuit Judge, 136 Mich. 14, 98 N. W. 744, holding 
 
5 L.R.A. 756] L. R. A. CASES AS AUTHORITIES. 964 
 
 verdict for "full value of estate," in matter of claim against decedent's estate 
 too uncertain and indefinite to warrant judgment. 
 Power of court to amend verdict. 
 
 Cited in Diamond State Teleph. Co. v. Blake, 105 Md. 576, 66 Atl. 631, holding 
 in action against two defendants jointly where court at close of plaintiff's case 
 directs jury to return verdict for one defendant, it is not error for court after 
 judgment entered on verdict to amend verdict by designating particular defend- 
 ant against whom 'operative; Buttron v. Bridell, 228 Mo. 635, 129 S. W. 12, 
 to the point that court should correct informal verdict in open court with con- 
 sent of jury or have jury retire and correct informality. 
 
 5 L. R. A. 759, KEEDY v. LONG, 71 Md. 385, 18 Atl. 704. 
 
 Followed without special discussion in Keedy v. Crane, 71 Md. 396, 18 Atl. 707. 
 General issue. 
 
 Cited in New York, P. & N. R. Co. v. Jones, 94 Md. 29, 50 Atl. 423, and 
 Spencer v. Patten, 84 Md. 425, 35 Atl. 1097, holding plea amounting to general 
 issue bad on demurrer; McAllister v. State, 94 Md. 300, 50 Atl. 1046, holding 
 plea not bad because facts set up in avoidance provable under general issue; E. 
 J. Codd Co. v. Parker, 97 Md. 326, 55 Atl. 623, holding plea admitting sale of 
 goods, but setting up judgment against principal as defense, good as special 
 plea; Baltimore Belt R. Co. v. Sattler, 100 Md. 322, 59 Atl. 654, 3 A. & E. 
 Ann. Cas. 660, holding defendant has right to plead specially defenses in con- 
 fession and avoidance which would be admissible in evidence under general issue, 
 and this fact does not make plea bad. 
 election of remedies. 
 
 Cited in Bolton Mines Co. v. Stokes, 82 Md. 58, 31 L. R. A. 790, 33 Atl. 491, 
 holding proceeding to judgment on one of two alternative remedies precludes 
 resorting to the other. 
 
 Cited in note (3 L.R.A. (X.S.) 1043) on right to maintain separate action for 
 nondelivery of each instalment under entire contract. 
 By discharged employee. 
 
 Cited in Olmstead v. Bach, 78 Md. 145, 22 L. R. A. 76, footnote p. 74, 44 Am. 
 St. Rep. 273, 27 Atl. 501, holding, after payment of wrongfully discharged 
 servant up to time of discharge, only remedy in action for damages; Olmstead 
 v. Bach (Md.) 18 L. OR. A. 54, holding satisfied judgment for one week's wages 
 after wrongful discharge not bar to subsequent suit for wages thereafter accru- 
 ing; Ornstein v. Yahr & L. Drug Co. 119 Wis. 435, 96 N. W. 826, holding sales- 
 man's recovery of amount equal to month's pro rata salary bar to action for 
 "wrongful discharge; James v. Parsons, R. & Co. 70 Kan. 158, 78 Pac. 438, 
 holding servant wrongfully discharged before expiration of contract may treat 
 -Contract as terminated and recover on quantum meruit, or he may stand on 
 contract and recover under its terms and for damages for breach and citing 
 annotation also on this point; Bridgeford v. Meagher, 144 Ky. 487, 139 S. W. 
 750, holding that action by servant for wrongful discharge may be brought at 
 any time after discharge; Carmean v. North American Transp. & Trading Co. 
 45 Wash. 448, 8 L.R.A.(N.S.) 596, 122 Am. St. Rep. 930, 88 Pac. 834, 13 A. 
 
 6 E. Ann. Cas. 110, holding recovery of salary for several months after wrongful 
 discharge under single contract for year at specified salary for month, bar to 
 subsequent action to recover salary for balance of contract term. 
 
 Cited in footnotes to Douglass v. Merchants' Ins. Co. 7 L. R. A. 822, which 
 holds by-law, authorizing removal of corporate officer at pleasure, part of con- 
 tract of employment; Olmstead v. Bach, 18 L. R. A. 53, which holds judgment 
 for one week's wages after dismissal not bar to suit for subsequent wages. 
 
965 L. R. A. CASES AS AUTHORITIES. 5 L.R.A. 709 
 
 Cited in notes (24 L.R.A. 233) on effect of part performance of contract for 
 services; (5 L.R.A. (N.S.) 451) on right of wrongfully discharged servant to 
 wages for contract period subsequent to discharge; (5 L.R.A.(N.S.) 583, 587) 
 on remedy of wrongfully discharged servant with respect to services actually 
 rendered; (6 L.R.A. (N.S.) 53, 57, 120) on remedy of wrongfully discharged 
 servant by action for breach of contract; (20 Am. St. Rep. 362) on rights of 
 servant wrongfully discharged; (51 Am. St. Rep. 516, 517) on remedies of 
 employee wrongfully discharged. 
 Kiuht to discharge employee. 
 
 Cited in footnote to Edgecomb v. Buekhout, 28 L. R. A. 816, which denies 
 right to discharge housekeeper for marriage or contemplated marriage. 
 
 Cited in note (13 L.R.A. 73) on defeat of right to wages by servant's dis- 
 honesty. 
 
 5 L. R. A. 765, FIRST NAT. BANK v. WALTON, 13 Colo. 265, 16 Am. St. Rep. 
 
 200, 22 Pac. 440. 
 Definition of insolvency. 
 
 Cited in Mitchell v. Bradstreet Co. 116 Mo. 240, 20 L. R. A. 142, 38 Am. St. 
 Rep. 592, 22 S. W. 358; Consolidated Tank Line Co. v. Kansas City Varnish Co. 
 45 Fed. 13; Stone v. Dodge, 96 Mich. 524, 21 L. R. A. 287, 56 N. W. 75, holding 
 insolvency to be inability to make payments of obligations as they mature in 
 ordinary course of business. 
 
 Cited in note (10 L. R. A. 707) on what constitutes insolvency. 
 
 Keeping: security from record. 
 
 Followed in Stock-Growers' Bank v. Newton, 13 Colo. 257, 22 Pac. 444, holding 
 agreement to keep trust deed from record express evidence of fraudulent intent. 
 
 Cited in National State Bank v. Sandford Fork & Tool Co. 157 Ind. 18, 60 N. 
 E. 699, holding chattel mortgage kept from record, without agreement to conceal, 
 valid; Johnston v. Columbus Ins. & Bkg. Co. 85 Miss. 259, 38 So. 100, holding 
 withholding from record of conveyances by bank president to bank of practically 
 all his property, for indebtedness due it, to enable him to secure credit he 
 could not have obtained otherwise, fraudulent as to creditors. 
 
 Cited in note (55 L. R. A. 280) on effect of levy under void or voidable judg- 
 ment. 
 Setting: aside fraudulent judgment. 
 
 Distinguished in Pitkin v. Burnham, 62 Neb. 395, 55 L. R, A. 286, 89 Am. St. 
 Rep. 763, 87 N. W. 160, holding officer levying through execution on voidable 
 judgment cannot be ousted by another officer with another process. 
 
 5 L. R. A. 769, JOHNSON v. ROBINSON CONSOL. MIN. CO. 13 Colo. 258, 22 
 
 Pac. 459. 
 Unilateral contracts. 
 
 Cited in Smith v. Bateman, 25 Colo. 242, 53 Pac. 457, holding mere written 
 agreement to sell land withdrawable before acceptance. 
 Requisites of pleadings. 
 
 Cited in Calvert v. Calvert, 15 Colo. 395, 24 Pac. 1043, holding judgment will 
 not be disturbed because of omission of "forthwith" from order of publication ; 
 Cramer v. Oppenstein, 16 Colo. 502, 27 Pac. 713, holding facts, not forms, the 
 essentials of good pleadings; Leh v. Delaware, L. & W. R. Co. 30 Pa. Super. 
 Ct. 401, holding defendant has right to be advised by pleadings in advance of 
 trial of substantial terms and conditions of contract under which liability to 
 judgment is sought to be rnforced. 
 
5 L.R.A. 769] L. R. A. CASES AS AUTHORITIES. 966 
 
 Aider by answer. 
 
 Cited in Salazar v. Taylor, 18 Colo. 541, 33 Pac. 369, holding, on supplying 
 defects in complaint by answer, objections not available in arrest of judgment; 
 St. Louis & S. F. R. Co. v. Keller, 10 Kan. App. 485, 62 Pac. 905, holding defect- 
 ive petition cured by averment in answer; Empire Ranch & Cattle Co. v. Bender, 
 49 Colo. 523, 113 Pac. 494, holding that an omission in complaint to quiet title, 
 of averment that claim of defendant is "adverse to plaintiff" is cured by answer 
 asserting adverse title. 
 Amendments and waiver. 
 
 Cited in Hammer v. Downing, 39 Or. 518, 64 Pac. 651, holding material amend- 
 ments, because of variance, could not be disregarded as though made by trial 
 court; Brahoney v. Denver U. & P. R. Co. 14 Colo. 29, 23 Pac. 172, holding failure 
 to demur to complaint for misjoinder of parties or improperly united causes of 
 action waives objection. 
 Performance of contract. 
 
 Cited in Owl Canon Gypsum Co. v. Ferguson, 2 Colo. App. 232, 30 Pac. 255 
 (dissenting opinion), majority holding broker employed to sell, entitled to com- 
 missions on procuring purchaser able and willing to buy, though sale made to 
 another; Lombard v. Overland Ditch & Reservoir Co. 41 Colo. 256, 92 Pac. 695, 
 holding party who sues for substantial performance can recover on quantum 
 meruit only. 
 Variance, when material. 
 
 Cited in People's Min. & Mill. Co. v. Central Consol. Mines Corp. 20 Colo. 
 App. 564, 80 Pac. 479, holding in action for specific performance, where contract 
 pleaded is written contract of four cotenants, and evidence showed written con- 
 tract with parol proof of authority to sign for one party, variance material. 
 
 5 L. R. A. 775, TOPEKA v. MARTINEAU, 42 Kan. 387, 22 Pac. 419, 
 
 Followed without discussion in Parker v. Atchison, 46 Kan. 18, 26 Pac. 435. 
 Damages for change of grade in street. 
 
 Cited in Topeka v. Sells, 48 Kan. 533, 29 Pac. 604, holding cost of lowering 
 floors and adjusting building to new grade may be considered as element of 
 damage; Smith v. Kansas City, 128 Mo. 31, 30 S. W. 314, holding jury may con- 
 sider cost of restoring property to same condition as before change. 
 Abandonment of railroad. 
 
 Cited in Eckington & S. H. R. Co. v. McDevitt, 18 App. D. C. 507, holding 
 measure of damage to landowner for abandonment of railroad is difference in 
 value of land with road in operation and that with road abandoned. 
 View of premises by jury as evidence of damage. 
 
 Cited in Chicago, <R. I. & P. R. Co. v. Farwell, 60 Neb. 325, 83 N. W. 71, hold- 
 ing jury may make result of observations at locus in quo, in connection with other 
 evidence, basis of verdict; Chicago, K. & W. R. Co. v. Mouriquand, 45 Kan. 
 172, 25 Pac. 567, and Wellington Waterworks v. Brown, 6 Kan. App. 728, 50 Pac. 
 966, holding jury in condemnation proceedings at liberty to consider what they 
 saw in and about premises, in arriving at verdict; Chicago, K. & W. R. Co. v. 
 Willits, 45 Kan. 115, 25 Pac. 576, holding knowledge acquired by jury from view 
 may be considered in estimating damage from excavations made by railroad on 
 land adjacent to right of way; Bigelow v. Draper, 6 N. D. 173, 69 1ST. W. 570, 
 Junction City v. Blades, 1 Kan. App. 94, 41 Pac. 677; Chicago, K. & W. R. Co. 
 v. Parsons, 51 Kan. 416, 32 Pac. 1083, holding verdict must be supported by 
 other evidence than observations of jury; Ormund v. Granite Mt. Min. Co. 11 
 Mont. 309, 28 Pac. 289, holding that, in action to determine right of possession 
 to mining property, jury may consider personal observations in connection with 
 
67 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 777 
 
 other evidence; Moorhead v. Arnold, 73 Kan. 142, 84 Pac. 742, holding evidence 
 obtained by inspection admissible where supplemented by oral evidence; Blincoe 
 v. Choctaw, O. & W. R. Co. 16 Okla. 306, 4 L.R.A. (NJ3.) 898, 83 Pac. 903, 8 
 A. & E. Ann. Cas. 689, holding impressions obtained on view may be considered 
 in connection with evidence offered at trial. 
 
 Cited in note (42 L. R. A. 388, 389) on view by jury in general. 
 
 Disapproved in Zanesville, M. & P. R. Co. v. Bolen, 76 Okla. St. 379, 11 
 L.R.A.(N.S.) 1108, 81 N. E. 681, 10 A. & E. Ann. Cas. 658, holding impressions 
 made on minds of jurors in appropriation case by view of premises not evi- 
 dence in case. 
 
 5 L. R. A. 777, HARRIS v. HOWE, 74 Tex. 534, 15 Am. St. Rep. 862, 12 S. 
 
 W. 224. 
 Liability of connecting: carrier*. 
 
 Cited in Davis v. Houston & T. C. R. Co. 25 Tex. Civ. App. 12, 59 S. W. 844, 
 holding carrier selling ticket over connecting line not liable for connecting car- 
 rier's misdirection of passenger; International & G. N. R. Co. v. Duncan, 55 
 Tex. Civ. App. 449, 121 S. W. 362, holding railroad not liable for injury to 
 person who had completed his journey over its road and was waiting at station 
 to take train on connecting line; International & G. X. R. Co. v. Doolan, 56 
 Tex. Civ. App. 508, 120 S. W. 1118, holding railroad not responsible for mistake 
 of agent of another company in selling passenger wrong ticket for passage over 
 both lines. 
 
 Cited in footnotes to Chicago & A. R. Co. v. Mulford, 35 L.R.A. 599, which 
 denies liability of company selling tickets for failure of connecting roads to honor 
 same; Kansas City F. S. & M. R. Co. v. Washington, 69 L.R.A. 65. which holds 
 initial carrier checking baggage to destination on through ticket liable for loss 
 on connecting line; Brezewitz v. St. Louis, I. M. & S. R. Co. 70 L.R.A. 212, 
 which holds that undertaking by ticket agent that he will instruct initial car- 
 rier to deliver ticket to intending passenger will not render his employer liable 
 for delay of initial carrier in complying with instructions. 
 
 Cited in notes (5 Eng. Rul. Cas. 463, 464; 23 Am. St. Rep. 558) on liability 
 of connecting carriers; (106 Am. St. Rep. 606, 612) on liability of initial carrier 
 for torts or negligence of connecting lines. 
 Limiting liability to own line. 
 
 Cited in Gulf, C. & S. F. R. Co. v. St. John, 13 Tex. Civ. App. 263, 35 S. W. 
 501 ; McCarn v. International & G. N. R. Co. 84 Tex. 353, 16 L. R, A. 40, 31 Am. 
 St. Rep. 51, 19 S. W. 547; Gulf, C. & S. F. R. Co. v. Looney, 85 Tex. 166, 16 L. 
 R. A. 474, 34 Am. St. Rep. 787, 19 S. W. 1039, holding carrier may limit 
 liability to own line; International & G. N. R. Co. v. Campbell, 1 Tex. Civ. App. 
 511, 20 S. W. 845, upholding carrier's right to contract against liability for 
 wrongful ejection of passenger on another line; Boling v. St. Louis & S. F. R. 
 Co. 189 Mo. 240, 88 S. W. 35, holding initial carrier not liable for misrake of 
 a<rent of carrier at destination where it provides on ticket that it acts as agent 
 of latter carrier only; Eckles v. Missouri P. R. Co. 112 Mo. App. 251, 87 S. 
 W. 99, holding carrier can by contract protect itself against liability for injury 
 not occurring on its own line, on contract to carry beyond its own terminus. 
 
 Distinguished in Gulf, C. & S. F. R, Co. v. Wilbanks, 7 Tex. Civ. App. 495, 
 27 S. W. 302. holding that where copartnership exists between connecting lines, 
 they cannot limit liability: Howe v. Gibson, 3 Tex. Civ. App. 265, 22 S. W. 828, 
 Tiolding that, where two roads were operated as one line, suit for tort was prop- 
 erly brought against both. 
 
5 L.R.A. 779] L. R. A. CASES AS AUTHORITIES. 968 
 
 5 L. R. A. 779, KIRCHER v. MILWAUKEE MECHANICS MUT. IXS. CO. 74 
 
 Wis. 470, 43 N. W. 487. 
 Increase of hazard. 
 
 Cited in Pool v. Milwaukee Mechanics' Ins. Co. 91 Wis. 539, 51 Am. St. Rep. 
 920, 65 N. W. 54, holding that whether use of fumigators increased hazard a ques- 
 tion for jury; Loyal Mut. F. Ins. Co. v. J. S. Brown & Bro. Mercantile Co. 
 47 Colo. 473, 107 Pac. 1098, holding question whether building addition to 
 property insured increased risk one of fact for jury; Weidner v. Standard Life 
 
 6 Acci. Ins. Co. 130 Wis. 19, 110* N. W. 246, holding purpose of assault, within 
 exception in accident policy, question of fact for jury; Siemers v. Meeme Mut. 
 Home Protection Ins. Co. 143 Wis. 121, 139 Am. St. Rep. 1083, 126 N. \V. 669, 
 holding that trivial or temporary variations in risk to ordinary use of insured 
 property are presupposed by parties to be likely to occur. 
 
 Cited in note (10 L.R.A. (N.S.) 742) on effect of temporary condition ceasing 
 before loss, under general provision against increase of risk, or specific provision 
 against certain conditions. 
 Construction of forfeiture clauses in policy. 
 
 Cited in Rheims v. Standard F. Ins. Co. 39 W. Va. 684, 20 S. E. 670; Vangin- 
 dertaelen v. Phenix Ins. Co. 82 Wis. 118, 33 Am. St. Rep. 29, 51 N. W. 1122; 
 Commercial Bank v. Firemen's Ins. Co. 87 W T is. 303, 58 N. W. 391 ; Beyer v. St. 
 Paul F. & M. Ins. Co. 112 Wis. 143, 88 N. W. 57, holding provision for for- 
 feiture is to be construed as favorably to assured as terms will permit ; England 
 v. Westchester F. Ins. Co. 81 Wis. 589, 29 Am. St. Rep. 917, 51 N. W. 954, holding 
 construction making policy void in its inception to be avoided if language sus- 
 ceptible of any other meaning; O'Brien v. Hone Ins. Co. 79 Wis. 403, 48 N. W. 
 714, holding false representation as to amount of encumbrance within condition 
 that false statements in application shall render policy void. 
 
 Cited in note (9 L. R. A. 82) on conditions against vacancy and nonoccupancy. 
 Misconduct of counsel in argument. 
 
 Cited in Warsaw v. Fisher, 24 Ind. App. 49, 55 N. E. 42, holding adverse 
 party's nonproduction of witnesses cognizant of the facts may be commented on 
 in argument; Smith v. Nippert, 79 Wis. 140, 48 N. W. 253, holding misconduct 
 of counsel in argument not ground for reversal, unless abuse of privilege dhown. 
 
 Cited in note (37 L. ed. U. S. 1004) as to when counsel's address to jury is 
 ground of error. 
 
 5 L. R. A. 781, SHEERS v. STEIN, 75 Wis. 44, 43 N. W. 728. 
 Statutory regulations as to infants, and custody of. 
 
 Cited in State v. Bailey, 157 Ind. 330, 59 L. R. A. 437, 61 N. E. 730, holding 
 constitutional rights of parents not infringed by statute compelling education of 
 children. 
 
 Cited in footnote to People v. Ewer, 25 L. R. A. 794, which holds valid, act pro- 
 hibiting employment of girls under fourteen as dancers, or in theatrical exhi- 
 bitions. 
 Right to custody. 
 
 Cited in Johnston v. Johnston, 89 Wis. 420, 62 N. W. 181, upholding refusal 
 to deprive mother of custody of children in favor of rich paternal grandfather, 
 father being admitted unfit, where mother industrious but poor: Markwell v. 
 Pereles, 95 Wis. 413, 69 N. W. 798, holding father entitled to child as against 
 maternal relatives caring for it since wife's death at his expense, where he is 
 financially able to support it, though unsympathetic in nature, and second wife 
 young and inexperienced; Hibbette v. Baines, 78 Miss. 705, 51 L. R. A. 843, foot- 
 
969 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 784 
 
 note p. 839, 29 So. 80, holding father entitled as against maternal aunts, where 
 of good habits and financial condition, though children lived two years with 
 grandmother at request of mother, the father contributing toward their expenses, 
 Hussey v. Whiting, 145 Ind. 582, 57 Am. St. Rep. 220, 44 N. E. 639, holding 
 wealthy maternal grandparents entitled to custody of child in preference to 
 father, where latter has no home and business keeps away from residence with 
 relatives three fourths of the time; Re McChesney, 106 Wis. 322, 82 N. W. 151, 
 holding maternal grandmother appointed by mother's will properly preferred to 
 father who, prior to divorce, had been extremely cruel to both wife and children, 
 and since separation had refused to see boy at death; Schiltz v. Roenitz, 86 Wis. 
 37, 21 L. R. A. 485, 39 Am. St. Rep. 873, 56 N. W. 194, denying right to deprive 
 parent of rights as to child by proceedings for its adoption because of his aban- 
 donment, of which proceedings he has no notice; Gilmore v. Kitson, 165 Ind. 
 408, 74 N. E. 1083, holding father who lives with his mother in comfortable 
 house, and was of good habits and character, entitled to custody of infant 
 daughter as against sister of deceased wife, although sister was better off finan- 
 cially than father; Robertson v. Bass, 52 Fla. 424, 42 So. 243, holding court 
 will not disturb status although mother has bettered condition by another 
 marriage, where several years before she had voluntarily relinquished children 
 when small, feeble and helpless and remained stranger to them thereafter; Peese 
 v, Gellerman, 51 Tex. Civ. App. 42, 110 S. W. 196, to the point that parent may 
 be denied custody of child if child's interests will be benefited thereby. 
 
 Cited' in footnotes to State ex rel. Lasserre v. Michel, 54 L. R. A. 927, which 
 denies father's absolute right to custody of minor child; Re Lally, 16 L. R. A. 
 681, which holds right of intemperate widower, without work or property, to 
 custody of child lost by leaving with neighbor; Anderson v. Young, 44 L. R. A. 
 277, which sustains court's power to uphold, in interest of child, custody held 
 under void agreement with parent; Fletcher v. Hickman, 55 L. R. A. 896, which 
 holds father bound by agreement intrusting custody of infant child to another; 
 Re Reiss, 25 L. R. A. 798, which denies power of court to compel father to send 
 children to visit their grandmother; Re Young, 36 L. R. A. 224, which upholds 
 grandparents' right to custody of children to exclusion of father's sister, ap- 
 pointed guardian by his will; Kelsey v. Green, 38 L. R. A. 471, which denies 
 absolute right of guardian appointed on father's application, as against guardian 
 appointed in other state where child actually resides; Stapleton v. Poynter, 53 
 L. R. A. 784, which holds custody of child properly taken against its will from 
 wealthy grandparent and given to parent of moral habits; Jones v. Bowman, 
 67 L.R.A. 860, which holds that religious belief will not in absence of statutory 
 requirement be considered in determining the proper custodian of an infant. 
 
 Cited in notes (27 L.R.A. 61) on validity of contract for transfer of parental 
 responsibility or authority; (65 L.R.A. 689) on right of mother, or reputed 
 father, or illegitimate to its custody or control; (88 Am. St. Rep. 869, 874) 
 on contracts for transfer of parental custody and responsibility. 
 
 5 L. R. A. 784, NATIONAL AUTOMATIC DEVICE CO v. LLOYD, 40 Fed. 89. 
 Effect of immoral use upon patent or copyrinht. 
 
 Cited in Reliance Novelty Co. v. Dworzek, 80 Fed. 903, holding patent laws 
 do not authorize issue of patent for invention injurious to morals, health, or 
 good order of society; Egbert v. Greenberg, 100 Fed. 450, holding copyright of 
 "official form chart" of races, useful to persons engaged in breeding and training 
 horses, entitled to protection in equity; Fuller v. Berger, 65 L. R. A. 383, foot- 
 note p. 381, 56 C. C. A. 588, 120 Fed. 275, enjoining infringement of patent on 
 bogus-coin detector; Fuller v. Berger, 65 L.R.A. 383, 56 C. C. A. 588, 120 Fed. 
 
5 L.R.A. 784] L. R. A. CASES AS AUTHORITIES. 970 
 
 275, holding patent for bad coin detector which is adapted to use in connection 
 with any coin operated machine, not void for lack of utility because of its 
 assignment by inventor to manufacturer of gambling machine and its sole use 
 in connection therewith. 
 
 5 L. R. A. 785, WASECA COUNTY v. SHEEHAN, 42 Minn. 57, 43 N. W. 690. 
 Liability of sureties npoii official bonds. 
 
 Cited in Lake County v. Neilon, 44 Or. 20, 74 Pac. 212, holding mere failure 
 of the tax collector to pay over funds on days specified, not alone evidence of 
 defalcation, to render sureties liable. 
 
 Cited in note (91 Am. St. Rep. 530, 531) on acts for which sureties on 
 official bonds are liable. 
 Official bonds; leave to sue. 
 
 Cited in Carver County v. Bongard, 82 Minn. 432, 85 N. W. 214, holding leave 
 of court not prerequisite to suit against sureties on county treasurer's bond. 
 Release of sureties on official bonds by other officers' neglect of du- 
 ties. 
 
 Cited in Hogue v. State, 28 Ind. App. 287, 62 X. E. 656, holding validity of 
 official bond not dependent on performance of statutory duties by other officers; 
 St. Louis County v. Security Bank, 75 Minn. 181, 77 N. W. 815, holding failure 
 of county commissioners to file claim with receiver of insolvent depositary does 
 not release sureties ; Bush v. Johnson County, 48 Neb. 15, 32 L. R. A. 229, 58 Am. 
 St. Rep. 673, 66 N. W. 1023, holding settlement of county board with treasurer not 
 adjudication on which sureties may rely as defense to action on bond: Andersen 
 v. Blair, 121 Ga. 125, 48 S. E. 951, 2 A. & E. Ann. Cas. 165, holding that the 
 negligence of the city mayor and council in failing to discover a defalcation 
 in the city treasurer's accounts and publishing statements that they are satis- 
 factory, is no defense in an action against sureties upon his bond; State ex rel. 
 Bell v. United States Fidelity & G. Co. 236 Mo. 369, 139 S. W. 163, holding 
 sureties of public officer not discharged by the laches or fraud of other public 
 officers; Silver Bow County v. Davis, 40 Mont. 428, 107 Pac. 81, holding that 
 negligence of county treasurer in paying bogus certificates is no defense to 
 surety of district court clerk. 
 
 5 L. R. A. 786, ERICKSON v. ST. PAUL & D. R. CO. 41 Minn. 500, 43 N. W. 332. 
 Dnty to tv am servants. 
 
 Cited in Anderson v. Northern Mill Co. 42 Minn. 426, 44 S. W. 315, holding 
 workmen, engaged in removal of lumber from platform rendered dangerous by 
 logs occasionally shot down from mill adjoining, entitled to recovery for injury 
 resulting from failure to give customary signal, on which he wholly relied; 
 Evansville & T. H. R. Co. v. Holcomb, 9 Ind. App. 211, 36 N. E. 39, holding rail- 
 way liable for injury to repairer through failure of employee to carry out rule 
 requiring him to give actual notice when engine enters shop; Amato v. Northern 
 P. R. Co. 46 Fed. 564, holding railway liable to workman injured while absorbed 
 in crossing dangerous bridge after nightfall in winter, on foreman's assurance 
 of no approach of engine, where injured by engine crossing without warning; 
 Schulz v. Chicago, M. & St. P. R. Co. 57 Minn. 274, 59 N. W. 192. holding duty 
 to warn for jury where deceased visible 600 yards distant, and not likely to hear 
 approach of train by reason of noise of opposite running train : Westa^ ay v. 
 Chicago, St. P. M. & 0. R. Co. 56 Minn. 31, 57 N. W. 222. holding railway not 
 permitted to stop, giving customary signals at crossing without notice, and liable 
 for injury resulting from negligent failure to ring bell; Smith v. Atlanta & C. 
 Air Line, R. Co. 132 N. C. 824, 44 S. E. 663, holding company liable to painter 
 
971 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 786 
 
 of switch targets for injuries from being hit by engine approaching without sig- 
 nals; Northern P. R. Co. v. Craft, 16 C. C. A. 175, 29 U. S. App. 687, 69 Fed. 
 128, holding railroad company liable for death of car accountant killed by engine 
 approaching without signals; McLaine v. Head & D. Co. 71 N. H. 307, 58 L. R. 
 A. 469, 93 Am. St. Rep. 522, 52 Atl. 545 (dissenting opinion), majority holding 
 company not liable for failure of foreman to warn workmen in trench that load 
 of earth was about to be dumped; Smith v. Atlanta & C. Air Line R. Co. 131 
 N. C. 616, 42 S. E. 976 (dissenting opinion), majority holding railway not 
 liable to employee painting switch target when struck by switch engine without 
 warning; Consolidated Stone Co. v. Ellis, 46 Ind. App. 88, 91 N. E. 1095, 
 holding master liable because of foreman's failure to warn servant of danger 
 after promise to do so and reliance upon it; Anderson v. Pittsburgh Coal Co. 
 108 Minn. 468, 26 L.R.A.(N.S.) 640, 122 N. W. 794, holding that failure of 
 hatch tender to give coal heaver customary warning before bucket was lowered 
 was negligence of vice principal; Wolfe v. Seaboard Air Line R. Co. 154 X. C. 
 576, 70 S. E. 993, holding that employee of railroad has right to rely on 
 employer's duty to give proper signal of approach of trains. 
 
 Distinguished in Rutherford v. Chicago, M. & St. P. R. Co. 57 Minn. 241, 59 
 N. W. 302, where workman was killed while working at distance from gang, at 
 point where he knew signals were not given; Lundquist v. Duluth Street R. Co. 
 65 Minn. 389, 67 N. W. 1006, holding that track repairer, injured by car ap- 
 proaching without giving proper warning signals, cannot recover, since fellow 
 servant of negligent motorman; Hickey v. St. Paul City R. Co. 60 Minn. 122, 
 61 N. W. 893, holding pedestrian attempting to hastily cross tracks ahead of car 
 which he knew to be rapidly approaching guilty of contributory negligence; 
 Reilly v. Chicago & N. W. R. Co. 122 Iowa, 528, 98 N. W. 464, denying railroad 
 company's liability to servant of independent contractor for injuries from being 
 hit by stone struck by engine. 
 Dnty to Mop train. 
 
 Cited in Johnson v. Truesdale. 46 Minn. 347, 48 N. W. 1136, holding engineer 
 under no duty to stop train after giving proper warning signals, until it ap- 
 peared that plaintiff would not get off track in time; Starbard v. Detroit, G. 
 H. & M. R. Co. 122 Mich. 28, 80 N. W. 878, holding railway not liable for failure 
 to stop, where deceased made motion as if to step off track after alarm whistle 
 given, but just as train reached him stepped back again. 
 
 * Cited in note (20 Am. St. Rep. 453) on duty of railroad company as to 
 persons on track. 
 Contributory negligence. 
 
 Cited in Coffeyville Vitrified Brick & Tile Co. v. Shanks, 69 Kan. 311, 76 
 Pac. 856, holding that employee in pit mine has right to rely on the customary 
 warning being given by the pit boss; Fitzgerald v. International Flax Twine 
 Co. 104 Minn. 147, 116 N. W. 475, holding that minor servant engrossed in 
 work has a right to rely on the giving of customary signals and is not bound 
 to guard against master's negligence in failing to give them. 
 
 Cited in notes (8 L. R. A. 783) as to when contributory negligence is not a 
 defense; (12 L. R. A. 280) on contributory negligence defeating recovery; (11 
 L. R. A. 130) on recovery for injury defeated by passenger's contributory negli- 
 gence. 
 On railroad track*. 
 
 Cited in Floan v. Chicago, M. & St. P. R. Co. 101 Minn. 115, 111 N. W. 957, 
 holding that employees have a right to rely on railroad company's custom to 
 ring the bell as warning of the approach of switch engines; Sherrill v. Southern 
 
5 L.R.A. 786] L. R. A. CASES AS AUTHORITIES. 972 
 
 R. Co. 140 N. C. 255, 52 S. E. 940, holding that where duties of employee 
 require him to work on and near track, and he is injured by train which 
 fails to give warning he is not guilty of contributory negligence as matter of 
 law in failing to look just at the time so as to avoid it; Louisville & X. R. 
 Co. v. Lewis, 141 Ala. 469, 37 So. 587, on right of employees on train to assume 
 that one on the track would get off so as to avoid injury from the train. 
 
 Cited in footnote to Weber v. Kansas City Cable R. Co. 7 L. R. A. 819, which 
 holds that party, alighting on wrong side of car while at full speed, cannot 
 recover for injuries. 
 "When contributory negligence is not conclusive bar to recovery. 
 
 Cited in Neary v. Northern P. R. Co. 37 Mont. 476, 19 L.R.A. (N.S.) 452, 
 97 Pac. 944, holding that one guilty of contributory negligence in remaining 
 upon track is not as a matter of law denied right of recovery for injury sus- 
 tained if railroad was guilty of wanton and reckless negligence in causing it. 
 Proximate cause. 
 
 Cited in footnotes to Herr v. Lebanon, 16 L. R. A. 106, which holds want of 
 barrier not proximate cause of omnibus going over embankment through struggles 
 of horse attempting to rise; McClain v. Garden Grove, 12 L. R. A. 482, which 
 holds narrowness of bridge and insufficiency of railings not proximate cause of 
 injury from horse falling from disease or choking; Vallo v. United States Exp. 
 Co. 14 L. P. A. 743, which holds throwing of trunk from delivery wagon in high- 
 way proximate cause of traveler falling over another trunk; McKenna v. Baessler, 
 17 L. R. A. 310, which holds original fire proximate cause of destruction of 
 property by back fire; Chicago, St. P. M. & O. R. Co. v. Elliott, 20 L. R.'A. 582, 
 as to proximate cause of injury to shipper while stepping from stock car to 
 caboose; Harrison v. Detroit, L. & X. R. Co. 7 L. R, A. 623, which holds proxi- 
 mate cause of injury to servant, question for jury. 
 
 Cited in notes (8 L. R. A. 83) on loss or injury attributed to proximate cause; 
 (12 L. R. A. 284) on defendant's negligence as proximate cause of injury; (7 L. 
 R. A. 132) on proximate, and not remote, cause of injury to be regarded; 
 (13 L. R. A. 733) on proximate and remote cause of damage; (8 L. R. A. 84) 
 on effect produced by intervening cause. 
 Liability for injury to servants of contractor. 
 
 Cited in Stevens v. United Gas & Electric Co. 73 N. H. 17], 70 L.R.A. ]25, 
 60 Atl. 848, holding proprietor of premises liable to servant of independent 
 contractor for injury from defectively insulated electric wires negligently main- 
 tained there by him. 
 
 Distinguished in Engler v. Seattle, 40 Wash. 76, 82 Pac. 136, on duty to 
 furnish safe place to work resting upon the contractor and does not extend to 
 the party for whom the contractor is doing the work. 
 
 5 L. R. A. 790, WILLIAMS v. SPENCER, 150 Mass. 346, 15 Am. St. Rep. 206, 
 
 23 N. E. 105. 
 Opinion as to mental capacity. 
 
 Cited in Smith v. Smith, 157 Mass. 391, 32 N. E. 348, holding that witness, 
 acquainted with testator, cannot, on issue as to mental soundness, testify con- 
 cerning opinion of testator's capacity to contract or transact important business; 
 Melanefy v. Morrison, 152 Mass. 476. 26 N. E. 36, holding opinion of subscribing 
 witness to will, as to mental condition of maker at time of signing, incompetent; 
 Gwin v. Gwin, 5 Idaho, 282, 48 Pac. 1060, holding testator's declarations made 
 after execution of will inadmissible to show incapacity. 
 
973 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 792 
 
 Cited in notes (38 L. R. A. 724, 745) on nonexpert opinions as to sanity or 
 insanity; (39 L. R. A. 718) on opinions of subscribing witnesses as to sanity or 
 insanity; (30 Am. St. Rep. 39) on admissibility of nonexpert opinions; (77 
 Am. St. Rep. 478) on competency of subscribing witnesses to wills and effect 
 of tbeir evidence in support of or opposition to will. 
 
 Distinguished in Clark v. Clark, 168 Mass. 525, 47 N. E. 510, holding that 
 witness acquainted with grantor may testify as to failure of mental capacity be- 
 tween time of execution of deed and bill to set aside same on ground of fraud. 
 
 Disapproved in Brown v. Mitchell, 88 Tex. 362, 36 L. R. A. 72, 31 S. W. 621, 
 holding that witnesses acquainted with facts may express opinions founded on 
 knowledge of testator's condition. 
 ReVmttal evidence. 
 
 Cited in Bonnemort v. Gill, 105 Mass. 496, 43 N. E. 299, holding that adverse 
 witness, testifying to facts tending to show mental incapacity of testator, may 
 be questioned on cross-examination as to acts of witness tending to show belief 
 in testator's capacity; Clarke v. Warwick Cycle Mfg. Co. 174 Mass. 436, 54 N. E. 
 887, holding evidence by plaintiff to contradict an inference deducible from de- 
 fendant's testimony, admissible. 
 
 5 L. R. A. 792, MELLOR v. MERCHANTS MFG. CO. 150 Mass. 362, 23 N. E. 100. 
 Assumption of risk. 
 
 Cited in Watson v. Kansas & T. Coal Co. 52 Mo. App. 372, holding experienced 
 miner, who continued to work under defective roof without complaint and without 
 propping it himself, assumed risk; Boyle v. New York & N. E. R. Co. 151 Mass. 
 103, 23 N. E. 827, holding conductor of switching crew, in charge of all move- 
 ments of cars in yard, assumed risk of injury while coupling cars from timber 
 projecting from car; Anderson v. Clark, 155 Mass. 370, 29 N. E. 589, holding 
 seaman assumed risk from dangerous condition of windlass and appliances, 
 obvious to person of plaintiff's experience; Miner v. Connecticut River R. Co. 
 Io3 Mass. 402, 26 N. E. 994, holding that consignee cannot recover for killing 
 of horse used in taking freight from defendant's yard, if his employee knew the 
 danger and assumed risk; McGill v. Maine & N. H. Granite Co. 70 N. H. 128, 
 85 Am. St. Rep. 618, 46 Atl. 684, holding employee, voluntarily attempting to 
 stop runaway cars, assumed risk of so doing; Quigley v. Bambrick, 58 Mo. App. 
 196. holding injury to inexperienced tunnel employee, through defendant's failure 
 to brace walls saturated by bursting of cistern, not resulting from obvious danger 
 for which risk assumed; Fitzgerald v. Connecticut River Paper Co. 155 Mass. 
 158, 31 Am. St. Rep. 537, 29 N. E. 464, holding that employee did not assume, 
 as matter of law, risk known and appreciated of passing down steps made 
 slippery by spray from exhaust steam; Mahoney v. Dore, 155 Mass. 518, 30 N. E. 
 3G6, holding it for jury whether domestic servant appreciated, and voluntarily 
 assumed, risk of using steps in dangerous condition, arising since employment; 
 Adolff v. Columbia Pretzel & Baking Co. 100 Mo. App. 208, 73 S. W. 321, holding 
 it for jury to determine whether one compelled to operate dangerous dough- 
 kneading machine assumed risk; Lindquist v. King's Crown Plaster . 139 
 Iowa, 313, 117 N. W. 46, holding infant servant who leaves work at which he 
 is employed and of own volition and against commands of foreman goes to 
 assist fellow servant in making repair, witli knowledge of dangers, a volunteer, 
 and guilty of such negligence as to bar recovery; Jewell v. Kansas City Bolt 
 
 6 Xut Co. 231 Mo. 205, 140 Am. St. Rep. 515, 132 S. W. 703, holding servant 
 not guilty of contributory negligence because he worked without usual protective 
 appliance after having been threatened with discharge if he did not so work; 
 International & G. N. R. Co. v. Hall, 46 Tex. Civ. App. 496, 102 S. W. 740> 
 
5 L.R.A. 792] L. R. A. CASES AS AUTHORITIES. 374 
 
 holding servant assumes risk where he goes outside duties of employment and 
 attempts to repair defective instrumentality; Patterson v. North' Carolina Lum- 
 ber Co. 145 N. C. 45, 58 S. E. 437, holding master not liable where servant 
 leaves his work and without order or request of master but as favor to another 
 servant undertakes to operate machine of latter and is injured; Byrne v. 
 Leanard, 191 Mass. 275, 77 N. E. 316, holding question of injury within scope 
 of duty for jury where servant who was to operate machine during absence 
 of regular operator, is injured while continuing after his return, the master 
 giving no instructions as to time to quit; National Fire Proofing Co. v. An- 
 drews, 85 C. C. A. 526, 158 Fed. 298, holding servant who at command of 
 superior, having control over him, leaves regular work and assists in making 
 repair, not a volunteer so as to bar recovery for injury; Elliff v. Oregon R. 
 
 4 Nav. Co. 53 Or. 77, 99 Pac. 76, holding employee not a volunteer assuming 
 risk where against his protest he is ordered by superior having some authority 
 to leave his regular work to perform that with more hazard; Jackson v. Georgia 
 Southern & F. R. Co. 132 Ga. 153, 63 S. E. 841 (dissenting opinion), on assump- 
 tion of risk by performance of gratuitous and unnecessary act. 
 
 Cited in notes (16 L. R. A. 861) as to who is volunteer; (22 L. R. A. 665) as 
 to assumption by volunteer of risks of service; (47 L. R. A. 185, 189, 192) on 
 volenti non fit injuria as a defense to actions by injured servants; (21 Am. 
 St. Rep. 110; 19 Eng. Rul. Cas. 167) on assumption of risks by employee; 
 (85 Am. St. Rep. 626) on master's liability to servant volunteering on duty 
 with which he is not charged. 
 
 Limited in Terre Haute & I. R. Co. v. Fowler, 154 Ind. 686, 48 L. R. A. 532, 
 56 N. E. 228, holding freight conductor going forward on engine, by order of road 
 superintendent, to inspect road after storm, within scope of employment as to 
 company's liability for injuries. 
 Effect of employers' liability act. 
 
 Cited in Malcolm v. Fuller, 152 Mass. 167, 25 N. E. 83, holding employer 
 liable to workman for explosion in drilling out wadding over charge supposed by 
 quarryman to have been discharged, under Massachusetts employers' liability act 
 1887; O'Maley v. South Boston Gaslight Co. 158 Mass. 136, 47 L. R. A. 164, 32 
 N. E. 1119, holding employee assumed obvious risks, although statute makes 
 employer liable for defects in ways, works, or machinery arising from, or not dis- 
 covered or remedied owing to, employer's negligence; Birmingham R. & Electric 
 Co. v. Allen, 99 Ala. 374, 20 L. R. A. 461, 13 So. 8, holding that employee assumes 
 risk of defective appliances by continuing in employment with knowledge thereof, 
 although known to master, notwithstanding the statute; Jarvis v. Hitch, 161 
 Ind. 220, 67 N. E. 1057, holding steam pile-driver, consisting of engine at one 
 end and driver at other end of flat car, not "locomotive engine." 
 
 Cited in footnote to Johnson v. St. Paul & D. R. Co. 8 L. R. A. 419, which holds 
 railroad not liable to member of crew repairing bridge for injury from fellow 
 servant's negligence. 
 
 5 L. R. A. 794, WASSON v. PETTIT, 117 N. Y. 118, 22 N. E. 566. 
 Liability of owner, lessor, etc., of premises, for injuries received 
 
 thereon. 
 
 Cited in Hilsenbeck v. Guhring. 36 N. Y. S. R. 454, 12 N. Y. Supp. 792, holding 
 owner of building liable to visitor of tenant falling into cellar by opening wrong 
 door in dark hall used by owner and tenant jointly, where gas not lighted; 
 Kelly v. Smith, 29 App. Div. 348. 51 N. Y. Supp. 413, holding owner of tenement 
 house not liable for death of boy, resulting from unauthorized use of fire escape 
 ladder wrongfully removed from its place; Maltbie v. Bolting, 6 Misc. 345, 26 
 
975 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 797 
 
 N. Y. Supp. 903, holding proof that cement barrel protruded from coal hole, 
 over which plaintiff stumbled, causing injury, insufficient to sustain complaint of 
 negligence where no actual negligence shown; Fisher v. Rankin, 25 Abb. N. C. 191, 
 27 N. Y. S. R. 583, 7 N. Y. Supp. 837, holding it error to take question of negli- 
 gence from jury, in action for injury caused by negligent condition of walk, and 
 rest case solely upon legality of disturbance of previous condition thereof; Boss 
 v. Jarmulowsky, 81 App. Div. 580, 81 N. Y. Supp. 400, denying landlord's liability 
 for injuries to child who fell over material placed in hall by independent con- 
 tractor; Lincoln v. First Nat. Bank (Neb.) 60 L. R. A. 927, 93 X. W. G98, holding 
 purchaser at sheriff's sale not liable for damages for personal injuries paid while 
 former in possession; Lincoln v. First Nat. Bank, 67 Neb. 408, 60 L.R.A. 923, 
 108 Am. St Rep. 690, 93 N. W. 698, holding purchaser at sheriff's sale who 
 has no possession, control or use of premises, except constructive possession 
 by delivering and recording of deed, not liable on judgment against city for 
 injury from falling into negligently constructed coal hole, while former owner 
 was still in possession, and citing annotation also on this point; Uggla v. 
 Brokaw, 117 App. Div. 588, 102 N. Y. Supp. 857, holding owner not liable for 
 injuries to third person through tenant's negligent omission to make repairs, 
 if building was not nuisance or in such condition as to endanger public at tim 
 of leasing. 
 
 Cited in footnotes to Boyce v. Union P. R. Co. 18 L. R. A. 509, which requires 
 proprietor of bathing house to keep bottom free from substances which would 
 injure bathers' feet; Lufkin v. Zane, 17 L. R. A. 251, which holds landlord not 
 liable for tenant's unauthorized use of premises, constituting nuisance ; Sterger v. 
 Van Siclen, 16 L. R. A. 640, which holds property owner not required to have 
 stairways safe as to person on premises in search of child; Philadelphia & R. R. 
 Co. v. Smith, 27 L. R. A. 131, which holds lessee not liable for continuing nui- 
 sance caused by prior tenant, to whom no notice to move was given. 
 
 Cited in notes (7 L. R. A. 621) on dangerous premises; (11 L. R. A. 361) on 
 wilful negligence of owner of premises as to keeping in safe condition; (23 L. 
 R. A. 157) on liability of landlord as to condition of part of premises not con- 
 trolled by tenant; (92 Am. St. Rep. 545) on liability to third persons of lessors 
 of real or personal property. 
 
 Distinguished in Burt v. Wrigley, 43 HI. App. 369, holding owner liable for 
 injury resulting from dangerous condition of sidewalk in process of repair, where 
 verdict exempts mason and places negligence on owner; Brehmer v. Lyman, 71 Vt. 
 103, 42 Atl. 613, holding judgment for defendant proper, where plaintiff was on 
 premises at invitation of trespasser, to whom no duty to provide safe passageway 
 existed; Curran v. Flammer, 49 App. Div. 290, 62 N. Y. Supp. 1061, holding owner 
 not liable for injury to third party due to defective bar to basement grating, 
 where no evidence that owner was aware of defect at time of lease or had had 
 subsequent notice given. 
 Actions for negligent injury. 
 
 Cited in Jorgensen v. Reformed Low Dutch Church, 7 Misc. 3, 27 N: Y. Supp. 
 318, holding action by husband for loss of services and society of wife, froift injury 
 to her by defendant's wrongful act, not one for negligent injury within provision 
 
 as to time for bringing action. 
 
 ' 
 
 5 L, R. A. 797, PAIXE v. DELHI, 116 N. Y. 224, 22 N. E. 405. 
 Municipal liability for injuri-s. 
 
 Cited in Champion v. Cramlon. 84 Wis. 412. 19 L. R. A. 858, 54 N. W. 7". 
 holding abutting owner not entitled to recover for injuries due to chan^- iu 
 natural flow of water from alteration of street grade according to defective plan; 
 
5 L.R.A. 797] L. R. A. CASES AS AUTHORITIES. 976 
 
 Platt v. New York, 8 Misc. 412, 28 N. Y. Supp. 672, holding fence erected by mu- 
 nicipality beside bridle path gives no cause of action to one injured thereby in 
 absence of negligence in construction; Van Wie v. Mt. Vernon, 26 App. Div. 332, 
 49 N. Y. Supp. 779, holding city not liable for injury resulting from collision 
 with lamp post near curb, where post was placed at usual distance, without neg- 
 ligence ; Rhinelander v. Lockport, 38 N. Y. S. R. 569, 14 N. Y.' Supp. 850, holding 
 city not liable for injury due to faulty plan, adopted for construction of cross- 
 walk; Sadlier v. New York, 104 App. Div. 89, 93 N. Y. Supp. 579. holding city 
 of New York not liable for injury to house from falling of rain water from 
 New York and Brooklyn bridge, where it is not feasible to so construct bridge 
 as to prevent water from falling and being blown onto house below; Pitman 
 v. New York, 141 App. Div. 672, 125 N. Y. Supp. 941, holding that duty of 
 municipality to make public improvements is discretionary, and action does 
 not lie for failure to act. 
 
 Cited in notes (61 L.R.A. 684, 700) on duty and liability of municipality with 
 respect to drainage; (67 L.R.A. 260) on municipal liability for defective plan 
 of street construction. 
 
 5 L. R. A. 799, KRATZENSTEIN v. WESTERN ASSUR, CO. 116 N. Y. 54, 22 
 
 N. E. 221. 
 Construction of contracts. 
 
 Cited in People v. Gluck, 188 N. Y. 172, 80 N. E. 1022, holding ambiguity in 
 consignment receipt and deposit agreement for sale of article, prepared by 
 seller, resolved against seller; Industrial & General Trust v. Tod, 180 N. Y. 
 225, 73 N. E. 7, holding corporation reorganization agreement prepared by 
 committee should be construed most favorably to bondholders who had no part 
 in preparing and must accept it as it was or not accept it at all; Daniel v. 
 Manhattan L. Ins. Co. 116 App. Div. 784, 102 N. Y. Supp. 27 (dissenting opin- 
 ion), on necessity of giving effect to every term of contract; Guardian Trust 
 Co. v. Peabody, 122 App. Div. 653, 107 N. Y. Supp. 515 (dissenting opinion), 
 on construction of contract of guaranty containing conflict between written and 
 printed words; Gunther v. Marteau, 73 Misc. 44, 132 N. Y. Supp. 82, to the 
 point that in case of ambiguity an instrument will be construed most strongly 
 against person executing it. 
 Contract of insurance. 
 
 Cited in Davis v. American Cent. Ins. Co. 7 App. Div. 493, 40 N. Y. Supp. 248, 
 and McNally v. Phoenix Ins. Co. 137 N. Y. 398, 33 N. E. 475, holding that courts 
 will not give policy narrow construction, after a loss; Wehle v. United States 
 Mut. Acci. Asso. 11 Misc. 39, 31 N. Y. Supp. 865, construing provisions to examine 
 body of insured after death strictly against insurer; Rickerson v. Hartford F. 
 Ins. Co. 149 N. Y. 313, 43 N. E. 856, holding ambiguous description of premises 
 in policy construed in favor of insured; Janneck v. Metropolitan L. Ins. Co. 162 
 N. Y. 577, 57 N. E. 182, construing provision allowing insurer to terminate 
 contract for intemperance, as not giving arbitrary right; London Assur. Corp. v. 
 Thompson, 170 N. Y. 100, 62 N. E. 1066, construing ambiguous policy of reinsur- 
 ance against original insurer; Devitt v. Providence Washington Ins. Co. 61 App. 
 Div. 393, 70 N. Y. Supp. 654, construing clause exempting insurer from damage 
 to boat by ice not to include ice forming on cargo after sinking; Halpin v. In- 
 surance Co. of N. A. 120 N. Y. 78, 8 L. R, A. 81, 23 N. E. 989, construing ma- 
 chinery and apparatus not to constitute a "mill;" Steel v. Phenix Ins. Co. 2 
 C^C. A. 471, 7 U. S. App. 325, 51 Fed. 723, and Sample v. London & L. F. Ins. Co. 
 46 S. C. 495, 47 L. R. A. 704, 57 Am. St. Rep. 701, 24 S. E. 334, construing time 
 limit for suit within specified time "next after fire" to mean after accrual of right 
 
977 L. K. A. CASES AS AUTHORITIES. [5 L.R.A. 802 
 
 of action; Burkheiser v. Mutual Acci. Asso. 26 L. R. A. 114, 10 C. C. A. 96, 18 
 U. S. App. 704, 61 Fed. 818, holding benefit association insuring "members" 
 liable to insured, ceasing to be member after liability became fixed; Bracker v. 
 Equitable Life Assur. Soc. 42 Misc. 292, 86 N. Y. Supp. 557; Theunen v. Iowa 
 Mut. Ben. Asso. 101 Iowa, 565, 37 L. R, A. 589, 70 N. W. 712, holding court 
 aims, with few exceptions, to arrive at intent of parties to contract of in- 
 surance; Van Slooten v. Fidelity & C. Co. 78 App. Div. 529, 79 N. Y. Supp. 608, 
 holding words in policy "amount otherwise payable" not ambiguous in meaning 
 or application; Lite v. Firemen's Ins. Co. 119 App. Div. 412, 104 X. Y. Supp. 
 434, holding effect should be given every word and expression, and in case of 
 ambiguity construction most favorable to insured should be adopted ; Traders' 
 Ins. Co. v. Dobbins, 114 Tenn. 233, 86 S. W. 383, holding doubtful and ambiguous 
 provisions construed most strongly against insurer; Graves v. Knights of Mac- 
 cabees, 128 App. Div. 663, 112 N. Y. Supp. 948, holding where phrase in policy 
 is susceptible to two interpretations it should receive that which is most favor- 
 able to insured, the policy having been prepared by insurer; Heyn v. New York 
 L. Ins. Co. 192 N. Y. 6, 84 N. E. 725, holding where part of contract is printed 
 form furnished by company and part typewritten, latter should control inter- 
 pretation where provisions of printed part are doubtful, uncertain or repugnant 
 to typewritten part. 
 
 Cited in footnote to Delaware Ins. Co. v. S. S. White Dental Mfg. Co. 65 
 L.R.A. 388, which holds marine policy providing that no risk shall attach until 
 amount and description is approved and indorsed thereon, not changed into 
 open and unrestricted policy covering all property assured elects to report, by 
 adopting agreement fixing uniform premium, supplying blanks on which to 
 report risks, and a long continued custom of reporting risks by assured when 
 convenient, and their uniform acceptance by insurer. 
 
 Cited in notes (8 L. R. A. 834) on entire and severable contracts of fire in- 
 surance; (11 L. R. A. 341) on construction of insurance contract; (26 L. R. A. 
 239) on location of movable property as affecting insurance thereon; (30 L. R. 
 A. 636) on effect of riders or slips attached to insurance policies; (14 Eng. 
 Rul. Cas. 14, 19; 20 Am. St. Rep. 826) on construction of insurance policy. 
 
 Distinguished in Merrill v. Travelers' Ins. Co. 91 Wis. 335, 64 N. W. 1039, con- 
 struing "immediately" to mean "presently, without lapse of time or material 
 delay." 
 
 5 L. R. A. 802, HALL v. STEVENS, 116 N. Y. 201, 22 N. E. 354. 
 Presumption as to payment arising from taking: note, etc. 
 
 Cited in Dibble v. Richardson, 171 N. Y. 138, 63 N. E. 829; Finlay v. Heyward r 
 34 Misc. 819, 69 N. Y. Supp. 648; Estey v. Birnbaum, 9 S. D. 178, 68 N. W. 290; 
 Schmidt v. Livingston, 16 Misc. 555, 38 N. Y. Supp. 746, holding presumption 
 to be that note for precedent debt is not taken as payment; Ainis v. Ayres, 62 
 Hun, 381, 16 N. Y. Supp. 905, holding that acceptance of draft by agent does not 
 absolve principal from liability; Friberg v. Block, 65 App. Div. 542, 73 N. Y. 
 Supp. 104, holding acceptance of note of third person on debtor's order for prece- 
 dent debt not release of debtor; Challoner v. Boyington, 83 Wis. 409, 53 N. W. 
 694, holding third person's note for purchase price of goods sold accepted before 
 time fixed for payment, presumptively taken in payment; Edicott v. .The Jamea 
 T. Easton, 49 Fed. 658, holding third person's note for antecedent debt no dis- 
 charge of maritime lien; Atlas S. S. Co. v. Colombian Land Co. 42 C. C. A. 399, 
 102 Fed. 360, holding taking of consignee's note for freight in lien of costs not 
 payment; Vacheron v. Hildebrant. 39 Misc. 62, 78 N. Y. Supp. 771, holding pre- 
 sumption that vendor received third person's note in satisfaction of debt ; Mc- 
 L.R.A. Au. Vol. L 62. 
 
5 L.R.A. 802] L. R. A. CASES AS AUTHORITIES. 978 
 
 Mahon v. United States L. Ins. Co. 63 C. C. A. 134, 128 Fed. 392, holding accept- 
 ance of draft subsequently dishonored constitutes payment; De Witt v. Mont jo, 
 46 App. Div. 541, 61 X. Y. Supp. 1046 (dissenting opinion), majority holding 
 that inference that vendor of goods accepted purchaser from original vendee as 
 debtor arises from drawing on such purchaser for balance of debt and treating 
 him as primarily liable; Gimble v. King, 43 Tex. Civ. App. 190, 95 S. W. 7, 
 holding if note or draft be taken contemporaneously with creation of debt, pre- 
 sumption prevails it was taken in payment of debt; Vacheron v. Hildebrant, 
 39 Misc. 62, 78 N. Y. Supp. 771, holding where debtor gives creditor note of 
 third person simultaneously with contracting debt, presumption is that it was 
 received in satisfaction of debt; MacMahon v. United States L. Ins. Co. 68 
 L.R.A. 91, 63 C. C. A. 130, 128 Fed. 392, holding insurance company which 
 receives and accepts draft on bank for renewed insurance, cannot, on suspension 
 of bank, charge loss thereon to insured and cancel policies for nonpayment of 
 premium; Fuller Buggy Co. v. Waldron, 112 App. Div. 816, 99 N. Y. Supp. 
 561, holding where check and renewal note are taken in payment of former 
 note, burden is on maker to show old note is paid. 
 
 Cited in notes (10 L.R.A.(N.S.) 522, 524, 538) on effect of transfer, without 
 indorsement, of worthless check, or note of third person; (35 L.R.A. (X.S.) 
 46, 47) on payment by commercial paper. 
 Question for jury as to intent. 
 
 Cited in Empire State Type Founding Co. v. Grant, 114 N. Y. 44, 21 N. E. 49, 
 holding question of intent as to concurrence of delivery and payment, for jury; 
 Fallihee v. Wittmayer, 9 S. D. 478, 70 N. W. 642, holding verdict conclusive on 
 intention of parties as to application of part of note in payment of mortgage. 
 
 Criticised in Dille v. White, 132 Iowa, 336, 10 L.R.A. (X.S.) 545, 109 N. W. 
 909, holding intention of parties shall prevail in determining whether delivery 
 of note, check or draft, drawn by debtor or third person are to be taken as 
 absolute or conditional payment. 
 Direction of verdict. 
 
 Cited in Toms v. Greenwood, 30 N. Y. S. R. 479, 9 N. Y. Supp. 666, holding, 
 on appeal from interlocutory judgment, court not restricted to question whether 
 there is any evidence to support finding. 
 
 Distinguished in Dougherty v. Horseheads, 73 Hun, 447, 26 N. Y. Supp. 642, 
 holding nonsuit improper, there being more than a scintilla of evidence to uphold 
 plaintiff's case. 
 
 5 L. R. A. 805, FOWLER v. METROPOLITAN L. INS. CO. 116 N. Y. 389, 22 
 
 N. E. 576. 
 
 Report of second appeal in 37 N. Y. S. R. 623, 13 N. Y. Supp. 755. 
 Conditions in Insurance contract; forfeiture. 
 
 Cited in Stayner v. Equitable Life Assur. Soc. 22 Misc. 54, 48 X. Y. Supp. 380, 
 holding equity will not relieve insured from consequences of legal forfeiture; 
 Palmer v. Mutual L. Ins. Co. 38 Misc. 323, 77 X. Y. Supp. 869, holding paid-up 
 policy may be subject to forfeiture; Union Cent. L. Ins. Co. v. Chowning, 8 Tex. 
 Civ. App. 460, 28 S. W. 117, holding policy forfeited upon failure to pay first 
 premium note on maturity; Mutual Reserve Fund Life Asso. v. Cleveland Woolen 
 Mills, 27 C. C. A. 215, 54 U. S. App. 290, 82 Fed. 511, holding nonpayment of 
 itself, acts as forfeiture in New York; Liverpool, L. & G. Ins. Co. v. Richardson 
 Lumber Co. 11 Okla. 612, 69 Pac. 938, denying insurance company's liability on 
 policy after insured's violation of "space" clause ; Dimick v. Metropolitan L. Ins. 
 Co. 69 N. J. L. 403, 62 L. R. A. 783, 55 Atl. 291, holding false answers recorded 
 
979 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 813 
 
 by agent in application avoids policy because one inviting answers was agent of 
 insured; Manhattan L. Ins. Co. v. Wright, 61 C. C. A. 141, 126 Fed. 85, holding 
 stipulation in policy, avoiding contract of premium not paid at certain date, en- 
 forceable; McCullough v. Home Ins. Co. 118 Tenn. 273, 100 S. W. 104, 12 A. 
 & E. Ann. Cas. 626, upholding provision for suspension of liability under fire 
 policy in case of default in payment of premiums; Sharpe v. New York L. Ins. 
 o. 5 Neb. (Unof.) 286, 98 N. W. 66, sustaining forfeiture for default in pay- 
 ment of note, where express provision therefor is contained therein; Illinois 
 L. Ins. Co. v. McKay, 6 Ga. App. 291, 64 S. E. 1131, holding where payment 
 by mail is expressly or impliedly authorized by insurer, there is sufficient pay- 
 ment if remittance is made in ample time to reach company in due course on 
 or at date when premium falls due; Dimick v. Metropolitan L. Ins. Co. 69 N. 
 J. L. 403, 62 L.R.A. 774, 55 Atl. 291, on right of insured to avoid warranty in 
 application based on acts of agents contrary to express limitation of his 
 authority. 
 
 Cited in footnote to Robinson v. Continental Ins. Co. 6 L. R. A. 95, which holds 
 valid, stipulation against liability while premium note unpaid. 
 
 Cited in notes (11 L. R. A. 345) on conditions in insurance policy; (9 L. R 
 A. 189) on forfeiture of benefit certificate for nonpayment of assessment. 
 Variance of terms of policy. 
 
 Cited in McLaughlin v. Equitable Life Assur. Soc. 38 Neb. 733, 57 N. W. 557. 
 holding, in absence of fraud or mistake, all previous verbal agreements merged in 
 policy; Northern Assur. Co. v. Grand View Bldg. Asso. 183 U. S. 325, 46 L. ed. 
 221, 22 Sup. Ct. Rep. 133, holding valid policy cannot be varied by parol con- 
 temporaneous evidence. 
 
 5 L. R. A. 810, DAVIS v. ELY, 104 N. C. 16, 17 Am. St. Rep. 667, 10 S. E. 138. 
 
 Specific performance of reformed contract granted in Davis v. Terry, 114 N. C. 
 30, 18 S. E. 947. 
 Reformation or rescission of contract. 
 
 Cited in Butler v. Threlkeld, 117 Iowa, 119, 90 N. W. 584, correcting lease by 
 adding option of lessee to purchase, omitted by mistake, and enforcing contract 
 as amended; Allen v. Kitchen, 16 Idaho, 148, L.R.A.(N.S.) , 100 Pac. 
 1052, holding equity has no power to construct executory contract for parties 
 or insert therein new and essential elements. 
 
 Cited in footnote to Bigham v. Madison, 47 L. R. A. 267, which authorizes 
 rescission for mutual mistake as to location of boundary lines pointed out by 
 vendor. 
 
 Cited in notes (28 L.R.A.(N.S.) 902, 905) on reformation for mistake of 
 law as to effect of instrument; (22 Eng. Rul. Cas. 869; 65 Am. St. Rep. 481, 
 482, 502) on reformation of contracts. 
 
 5 L. R. A. 813, GRAHLMAN v. CHICAGO, ST. P. & K. C. R, CO. 78 Iowa, 564, 
 
 43 N. W. 529. 
 Duty as to cattle-grnards. 
 
 Cited in Robinson v. Chicago, R. I. P. R- Co. 79 Iowa, 497, 44 N. W. 718, hold- 
 ing that railroad must use ordinary care to keep cattle-guards free from snow and 
 ice, after notice of obstruction, or opportunity to obtain it; Giger v. Chicago 
 
 6 X. W. R. Co. 80 Iowa, 494, 45 N. W. 906, holding permitting of cattle-guard 
 to be filled with snow is failure to maintain good and sufficient cattle-guard as 
 required by statute. 
 
 Cited in footnote to Birmingham Mineral R. Co. v. Parsons, 27 L. R, A. 263, 
 
5 L.R.A. 813] L. R. A. CASES AS AUTHORITIES. 880 
 
 which holds valid, act requiring railroads to build cattle-guards on demand of 
 land owner. 
 
 Cited in notes (20 Am. St. Rep. 162) on duty of railroad company as to 
 cattle on track; (9 L.R.A. (K.S.) 354) on duty of railroad to fence right of 
 way; (36 L.R.A. ( N.S. ) 998, 999, 1000) on duty of railroad to keep cattle 
 guards in condition. 
 Evidence of condition before and after accident. 
 
 Cited in notes (32 L.R.A. (N.S.) 1089) on admissibility of evidence of condi- 
 tion before and after accident of property whose defects alleged to have caused 
 injury; (11 Eng. Rul. Cas. 247) on admissibility of evidence of failure to- 
 correct defect. 
 
 5 L. R. A. 814, STATE v. POTTS, 78 Iowa, 656, 43 N. W. 534. 
 "Witnesses; evidence of Deputation. 
 
 Cited in Schoep v. Bankers Alliance Ins. Co. 104 Iowa, 357, 73 N. W. 825, hold- 
 ing reputation of witness in place from which he has been absent for year ad- 
 missible; McGuire v. Kenefick, 111 Iowa, 149, 82 N. W. 485, holding reputation in. 
 place where witness resided seven years back inadmissible, unless residence not 
 acquired elsewhere; Re Brown, 143 Iowa, 658, 120 N. W. 667, holding proof 
 of reputation of witness at place of trial admissible where he maintained his 
 home for some years but during year previous had moved into adjoining state, 
 he claiming place of trial as still his home. 
 Bribery. 
 
 Cited in State v. Campbell, 73 Kan. 719, 9 L.R.A. (X.S.) 547, 85 Pac. 784. 
 9 A. & E. Ann. Cas. 1203, holding acceptance of money to influence action in 
 awarding contract constitutes bribery although before contract became binding 
 it had to be ratified by designated officer; Murphy v. State, 124 Wis. 651, 102 
 X. W. 1087, holding member of city council who receives money to influence 
 his note on matter pending before council over which it had jurisdiction, subject 
 to indictment for bribery; People v. Jackson, 191 N. Y. 300, 15 L.R.A. (X.S.) 1177, 
 84 N. E. 65, 14 A. & E. Ann. Cas. 243, holding acceptance of money by coroner 
 for agreeing to discharge witness whom he has caused to be arrested in investi- 
 gation of death, bribery regardless of actual jurisdiction of coroner to cause 
 arrest; Re Bunkers, 1 Cal. App. 67, 81 Pac. 748, holding question of power of 
 legislature to make investigation immaterial in prosecution of member thereof 
 for bribery in use of influence to save certain persons from appearance, an 
 investigation being then pending. 
 
 Cited in footnote to State v. Lehman, 66 L.R.A. 490, which holds that ques- 
 tion of legality or illegality of proposed ordinance need not be considered in 
 determining guilt of member of council who is alleged to have agreed to sell 
 his vote to secure its passage. 
 
 Cited in note (15 L.R.A. (N.S.) 1175) on jurisdiction or authority of officer 
 to act as element of bribery. 
 Instructions on matters not proved. 
 
 Cited in note (17 Am. St. Rep. 252) on instructions upon matters not proved, 
 disputed nor involved in the case. 
 
 5 L. R. A. 816, UNITED STATES v. MALLARD, 40 Fed. 151. 
 Perjnry. 
 
 Cited in Markey v. State, 47 Fla. 59, 37 So. 53, holding false statement or 
 testimony must be made or given under oath actually administered in order to 
 constitute perjury; Com. v. McCue, 46 Pa. Super. Ct. 422, holding that oath 
 
981 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 821 
 
 by party is effectively taken, if no objection to form is taken at time it is 
 administered. 
 
 5 L. R. A. 817, McGOWEN v. MORGAN'S LOUISIANA & T. R. & S. S. CO. 41 
 
 La. Ann. 732, 17 Am. St. Rep. 415, 6 So. 606. 
 Regulation** of carriers. 
 
 Cited in Illinois C. R. Co. v. Louthan, 80 111. App. 590, holding it duty of pas- 
 senger to conform to reasonable regulations, railroad being liable only for use 
 of excessive force, and wilful or wanton acts. 
 
 Cited in footnote to Faber v. Chicago G. W. R. Co. 36 L. R. A. 789, which sus- 
 tains regulation against passengers passing conductor into part of train through 
 which he has come without paying fares. 
 
 Cited in notes (16 L. R. A. 449) on regulations as to admission of passenger 
 to train house. 
 Condition* as to tickets. 
 
 Cited in footnotes to Reese v. Pennsylvania R. Co. 6 L. R. A. 529, which holds 
 xtra demand of 10 cents from passenger without ticket, to be refunded, valid; 
 <3ulf, C. & S. F. R. Co. v. Henry, 16 L. R. A. 318, which holds that ticket good 
 for continuous passage does not entitle holder to stop at intermediate points; 
 United R. & Electric Co. v. Hardesty, 57 L. R, A. 276, which denies carrier's 
 duty to accept coupon detached from commutation book. 
 
 Cited in notes (20 L. R. A. 483) on validity of extra charge for passenger 
 fare when paid upon train; (12 L. R, A. 340) on stipulations in contract of 
 carriage of passenger. 
 Expulsion of passengers. 
 
 Cited in Virginia & S. W. R. Co. v. Hill, 105 Va. 743, 6 L.R.A. (N.S.) 904, 
 54 S. E. 872, holding it error to refuse to give requested instruction that plain- 
 tiff could not recover for injuries to which his own negligence contributed, and 
 that conductor committed no tort if he used no unnecessary force in expelling 
 passenger for refusing to pay fare beyond point provided in ticket. 
 
 Cited in footnotes to Kansas City, M. & B. R. Co. v. Riley, 13 L. R. A. 38, 
 which holds carrier liable for conductor's refusal to accept return coupon, and 
 ejecting passenger; Wardwell v. Chicago, M. & St. P. R. Co. 13 L. R. A. 596, 
 which authorizes ejection for refusal to make up deficiency of one from whom 
 less than full fare mistakenly received; Trezona v. Chicago G. W. R. Co. 43 L. 
 R. A. 136, which denies carrier's liability for ejecting one attempting to ride 
 on ticket which he knows does not on its face entitle him to a ride. 
 
 Cited in notes (9 L. R. A. 132; 9 L. R. A. 688; 11 L. R. A. 432) on expulsion 
 of passenger; (12 L. R. A.. 824) on ejection of passenger for refusal to pay fare. 
 
 Disapproved in effect in Hot Springs R. Co. v. Deloney, 65 Ark. 181, 67 Am. 
 St. Rep. 913, 45 S. W. 351, holding railroad liable for expulsion of passenger 
 presenting insufficient ticket because of mistake of ticket agent, although con- 
 ductor acted under reasonable regulation. 
 
 5 L. R. A. 821, SHELL v. DUNCAN, 31 S. C. 547, 10 S. E. 330. 
 Conclnsiveness of presnmption in favor of tax deed. 
 
 Cited in Bull v. Kirk, 37 S. C. 399, 16 S. E. 151, upholding plaintiff's right 
 to show that property sold was not same as that advertised in action to recover 
 same within two years after its sale; Pool v. Evans, 57 S. C. 88, 35 S. E. 436, 
 holding failure to comply with prerequisites to valid sale may be shown, with- 
 out regard to number of persons through whom title has passed; Heywaird v. 
 Christensen, 80 S. C. 149, 61 S. E. 399, holding if deed is good on its face, 
 presumption is that all proceedings as to sale were regular. 
 
5 L.R.A. 821] L. R. A. CASES AS AUTHORITIES. 982 
 
 Sale of entire tract of land for tax. 
 
 Cited in Wilson v. CantreK, 40 S. C. 131, 18 S. E. 517, upholding sale oi 
 entire tract, though tax might have obtained from sale of part of tract. 
 Effect of tax sale on existing: encumbrances. 
 
 Cited in Interstate Bldg. & L. Asso. v. Waters, 50 S. C. 467, 27 S. E. 948, hold- 
 ing that when prerequisites of sale are complied with, purchaser takes property 
 discharged of all lien by mortgage or otherwise. 
 Xatnre of widow's dower right. 
 
 Cited in Davis v. Townsend, 32 S. C. 114, 10 S. E. 837, holding inchoate right 
 of dower not an estate; Holley v. Glover, 36 S. C. 408, 16 L. R. A. 778, 31 Am. 
 St. Rep. 883, 15 S. E. 605, and McCreery v. Davis, 44 S. C. 227, 28 L. R. A. 667., 
 51 Am. St. Rep. 794, 22 S. E. 178, holding right of dower, though inchoate, re 
 substantial right of property, and not mere lien. 
 Defeat of right of dower. 
 
 Cited in Elder v. Mclntosh, 88 S. C. 292, 70 S. E. 807, holding that alienee 
 of husband cannot claim homestead in land aliened against judgment of alienors 
 widow for sum of money assessed in lieu of dower in land. 
 
 Cited in footnote to Kursheedt v. Union Dime Sav. Inst. 7 L. R. A. 229, which 
 holds inchoate right of dower not cut off by judgment in foreclosure suit IB 
 which mortgagor's wife not served. 
 
 Cited in notes (13 L. R. A. 441, 442) on bar on inchoate right of dower; (18 
 L. R, A. 79) on power of husband, or his creditors, to defeat wife's right of 
 dower; (24 L.R.A.(N.S.) 1294) on effect of tax sale upon inchoate dower. 
 
 Distinguished in Lucas v. Purdy, 142 Iowa, 368, 24 L.R.A. (X.S.) 1299, 12t) 
 N. W. 1063, holding, under statute, valid tax deed of land belonging to husband 
 divests wife's dower. 
 Effect of partition on dower. 
 
 Cited in Haggerty v. Wagner, 148 Ind. 662, 39 L. R. A. 395, 48 N. E. 366 (d 
 senting opinion), majority holding widow bound by partition between eotenants 
 during husband's lifetime, although not party to partition proceeding, 
 Actions for recovery of dower. 
 
 Cited in Bostick v. Barnes, 59 S. C. 28, 37 S. E. 24, holding widow may main 
 tain action for dower against several alienees of different tracts of land jointly; 
 Lucas v. White, 120 Iowa, 741, 98 Am. St. Rep. 380, 95 X. W. 209, holding 
 that statute of limitations begins to operate against wife's right of dower at 
 husband's death. 
 Power to change law of descent. 
 
 Cited in Burget v. Merritt, 155 Ind. 148, 57 N. E. 714, holding that, before 
 expectancy has ripened into vested estate, legislature may impose such condi 
 tions or changes in law of descent as it sees fit. 
 Adjournment of tax sales. 
 
 Cited in note (97 Am. St. Rep. 656) on adjournment of tax sales. 
 
 5 L. R. A. 832, GORE v. STATE, 52 Ark. 285, 12 S. W. 564. 
 Effect of absence of accused. 
 
 Cited in Bennett v. State, 62 Ark. 537, 36 S. W. 947, holding taking of tes- 
 timony, while defendant in felony case absent witli court's permission, preju- 
 dicial error; Falk v. United States, 15 App. D. C. 450, holding court may pro- 
 ceed with trial after absconding of defendant in case involving less than capita) 1 
 punishment; Baker v. State. 58 Ark. 520, 25 S. W. 603 holding return oi 
 verdict in felony case, during absence of defendant's counsel, without calling him., 
 not prejudicial, where no request that counsel should be present; Frey v. 
 
083 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 837 
 
 Calhoun Circuit Judge, 107 Mich. 132, 64 N. W. 1047, holding that failure of 
 one on trial for felony to appear at time to which court adjourned, pending jury's 
 deliberations, will not invalidate verdict returned during such absence, not- 
 withstanding statute requiring presence during trial; Lee v. State. 56 Ark. 7, 
 19 S. W. 16, holding administering statutory oath to officer in charge of jury, 
 and admonishing jury as to their duty in defendant's absence, not prejudicial 
 where party was voluntarily absent and afforded opportunity to rectify before 
 jury left box. 
 
 Annotation cited in State v. Way, 76 Kan. 934, 14 L.R.A.(N.S.) 607, 93 Pac. 
 159, holding absence of accused does not invalidate verdict where he is volun- 
 tarily absent without having been excused by court. 
 
 Cited in footnotes to State v. Mannion, 45 L. R. A. 638, which holds rights of 
 accused to meet witnesses violated by placing him out of sight and hearing of 
 witness; State v. Smith, 8 L. R. A. 774, which holds question of juror's ill- 
 ness cannot be determined in absence of accused. 
 
 Cited in notes (39 L.R.A. 821) as to right of prisoner to appear unmanacled 
 at his trial; (14 L.R.A. ( N.S. ) 604; 32 L.R.A.(N.S.) 307) on right of accused 
 to waive presence at receipt of verdict upon trial for felony; (129 Am. St. 
 Rep. 43) on constitutional right of accused to be confronted by witnesses. 
 Right to jury trial. 
 
 Cited in footnote to People v. Powell, 11 L. R. A. 75, which sustains right 
 to have jury selected from county where crime supposed to have been committed. 
 
 5 L. R. A. 837, MERRIGAN v. ENGLISH, 9 Mont. 113, 22 Pac. 454. 
 Mechanics' liens; nature of Montana law. 
 
 Cited in Duignan v. Montana Club, 16 Mont. 190, 40 Pac. 294, holding, since 
 statute of 1887, mechanics' lien law of that state is direct lien system. 
 I. i-n of subcontractor. 
 
 Cited in Eccleston v. Hetting, 17 Mont. 89, 42 Pac. 105, and Duignan v. Mon- 
 tana Club, 16 Mont. 190, 40 Pac. 294, holding person furnishing labor or ma- 
 terial under contract with subcontractor is himself subcontractor; Robertson 
 Lumber Co. v. State Bank, 14 N. D. 516, 105 N. W. 719, upholding statute giving 
 direct lien to subcontractor for work done or material furnished under contract 
 between contractor and owner; Prince v. Xeal-Millard Co. 124 Ga. 887, 53 S. 
 E. 761, 4 A. & E. Ann. Cas. .615, sustaining validity of statute giving lien in 
 favor of materialmen furnishing material to contractor for improvement of 
 real estate. 
 
 Cited in footnote to Hightower v. Bailey, 49 L. R. A. 255, which sustains 
 lien to subcontractors or materialmen irrespective of notice of claim or state 
 of account between owner and principal contractor. 
 
 Cited in note (7 L. R. A. 711) on right of subcontractor to lien. 
 Liability of homestead. 
 
 Cited in Bonner v. Minnier, 13 Mont. 275, 40 Am. St. Rep. 441, 34 Pac. 30, 
 holding homestead not exempt from lien for material furnished for improvement. 
 Priority of lien over mortgage. 
 
 Cited in Murray v. Swanson, 18 Mont. 535, 46 Pac. 441, holding lien of mort- 
 "a<*e, taken pending work on building, inferior to mechanic's lien for labor subse- 
 quently performed. 
 
 Cited in notes (12 L. R. A. 35) on priority of mechanics' liens over other 
 liens; (16 L. R. A. 335) on relation back of subcontractor's lien to date of 
 that of original contractor. 
 
5 LRJL 8371 L. B. A. CASES AS AUTHORITIES. M 
 
 Claim for which Hem attache*. 
 
 Cited in Broyhill v. Gaither, 119 N. G. 445, 26 S. E. 31, holding contractor 
 entitled to lien for entire contract price, and not simply for value of labor 
 performed; Wortman T. Kleinsehmidt, 12 Mont. 345, 30 Pae. 280 (dissenting 
 opinion),, majority holding contractor not entitled to lien for extra labor and 
 materials furnished contrary to contract. 
 
 Distinguished in Lane v. Lane Potter Lumber Co. 40 Mont. 550, 10? Pac. 
 898, holding, under statute, contractor not agent of owner, unless so by con- 
 tract, and laborer under such contractor not entitled to lien. 
 Reo;mt*ite* of otmtOMeMt for . 
 
 Cited in Smith r. Sherman Min. Co. 12 Mont. 528, 31 Pac. 72, holding state- 
 ment of account for lien need not contain statement of items, nor nature of 
 work; Mclntyre T. Mac GInniss, 41 Mont. 98, 137 Am. St. Kep. 701, 108 Pac. 
 353, holding notice of mechanic's lien giving honest statement from which it 
 may he understood what amount, is claimed, sufficient. 
 
 5 L. R A. 841, SPRINGFIELD F. & M. INS. CO. v. WTNX, 27 Neb. 649, 43 N. 
 
 W. 401. 
 I *!-<: eaTt of mtar*ir-*eatatio* IB proof* of loss. 
 
 Cited in Home Ins. Co. T. Winn, 42 Neb. 334, 60 N. W. 575, holding false 
 representations as to value of property in proofs of loss avoids policy, unless 
 actual value exceeds insurance; Havlik v. St. Paul F. ft M. Ins. Co. f " 
 430, 127 N. W. 24S, holding that unless false statements in proof of loss affect 
 the risk they do not render policy void. 
 
 Cited in note (32 LRJL(N,S.) 459) on insurance; effect of false swearing 
 in proofs of loss. 
 
 Disapproved in effect in Fowler v. Phoenix Ins. Co. 35 Or. 562, 57 Pac. 421, 
 holding intentional false **** in proofs of loss, for purpose of defraud- 
 ings, avoids policy. 
 
 5 L. R. A. 844, SEWARD T. HAYDEN, 150 Mass. 158, 22 N. E. 629, 15 Am. 
 St. Rep. 183, 22 N. E. 629. 
 
 Cited in Walker v. John Hancock Mot. L. Ins. Co. 167 Mass. 189, 45 X. E. 
 89, holding words "from date" in contract exclude day of date, in absence of 
 showing of contrary intention; Perkins T. Jennings, 27 Wash. 148, 67 Pac. 590, 
 holding day of payment should be excluded in computing time within which 
 action must be commenced on promissory note; Grant v. Paddock, 30 Or. 319, 
 47 Pae. 712, holding that in computing time limited by statute for commencing 
 action to recover real property, day on which cause of action accrued should 
 be excluded; Nebola v. Minnesota, Iron Co. 102 Minn. 92, 112 X. W. 880, 12 
 A. & E. Ann. Cas. 56, holding day on which cause of action accrued excluded in 
 determining commencement of statute of limitations; Stnrdivant v. McCorley, 
 83 Ark. 281, 11 LuRA.(NJS.) 828, 103 S. W. 732,' holding statute of limitations 
 runs from date of debt payable on demand. 
 
 Cited in footnote to People v. Barry, IS L. R. A. 337, which requires exclusion 
 of day of jaatku and return day in computing time for appearance. 
 
 Cited in notes (11 L. R. A. 724) on computation of time; (13 L. R. A. 40) on 
 exclusion of Sunday in computations of time; (49 L. R. A. 195, 196, 212, 213, 
 215) on rule as to first and last days in computation of time; (11 L. R. A. 701 ) 
 on computation of time under statute* of Imitations; (78 AOL St Eep. 373) 
 OBI auanpulaliua of 
 
&?5 L. B. A, CASES AS AUTHORITIES. [5 LJELA. 848 
 
 5 L. B- A, 848, QUTMBY v. BOSTON & M. R, 150 Mass. 365, 23 N. E. 205. 
 Carrier*; validity of special rout rapt* limiting liability. 
 
 Cited in Rogers v. Kennebec S. B. Co. 86 Me. 274, 25 L. R. A. 496, 29 AtL 
 1069, holding special contract, relieving carrier from liability to free passenger, 
 valid; Pittsburgh, C. C. A St. L. R. Co. v. Mahoney, 148 Ind. 200, 40 L. R. 
 A. 104, 62 Am. St. Rep. 503, 46 N. E. 917, Subsequent Appeal in 29 Ind. 
 App. 656, 63 N. E. 231, holding stipulation for exemption from liability for neg- 
 ligence in contract for transportation of express matter valid; Doyle v. Fitch- 
 burg R. Co. 166 Mass. 497, 33 L. R. A. 846, 55 Am. St. Rep. 417, 44 X. E. 611, 
 holding railroad may contract with free passenger for exemption from liability 
 for injury, except from wilful negligence; Walther v. Southern P. Co. 159 CaL 
 773, 37 I/.RJMXJ3.) 239, 116 Pac. 51, holding agreement on part of person 
 riding on free pass, that carrier will not be held liable for negligence, valid; 
 Dugan v. Blue Hill Street R. Co. 193 Mass. 434, 79 N. E. 748, holding terms 
 of pass, requiring assumption of risk by passenger, binding where pass is issued 
 as gratuity, but not binding where issued to employee as one of terms of employ- 
 ment: Mann v. Pere Marquette, 135 Mich. 219, 97 X. W. 721, holding contract 
 by railroad on building side track that owners of adjacent property should 
 assume liability for loss of property by fire, binding; James Quirk Mill. Co. 
 v. Minneapolis A St. L. R. Co. 98 Minn. 27, 116 Am. St. Rep. 336, 107 X. W. 
 742. holding contract by railroad and owner of elevator, exempting railroad 
 from liability for loss from fire, the exemption being in consideration for permit 
 to build elevator, binding; Stone v. Union P. R. Co. 32 Utah, 201, 89 Pac. 715, 
 holding release by employee of express company who is also employee of railroad 
 company, executed to express company, whereby railroad company was released 
 for any injury to employee in course of his employment through its negligence, 
 void. 
 
 Cited in notes (22 L.RJL 797) on right of person riding on pass or contract 
 for free passage; (48 L. ed. U. S. 742, 743; 37 LR-A.<X-S.) 235, 241, 248) 
 on validity of stipulation in pass limiting carrier's liability. 
 Omi*ion of pmMCBger to *lgm eotret OB fmmm or ticket. 
 
 Cited in Walker v. Price, 62 Kan. 331, 84 Am. St. Rep. 392, 62 Pac. 1001, 
 holding failure of passenger to sign condition limiting time of ticket does 
 not relieve him from observance of condition; Fonseca v. Cunard S. S. Co. 153 
 Mass. 556 12 L. R. A. 341, 25 Am. St. Rep. 660, 27 X. E. 665, holding failure 
 of passenger to sign contract on ticket exempting carrier from liability for loss 
 of baggage, immaterial; Ballou v. Earle, 17 R. I. 443, 14 L. R. A. 435, 33 Am. 
 St. Rep. 881, 22 Atl. 1113, holding presumption that stipulations limiting com- 
 mon-law liability in receipt for freight were assented to by shipper; Louisville, 
 X. A. & C. R. Co. v. Xicholai, 4 Ind. App. 124, 51 Am. St- Rep. 206, 30 X. E. 
 424. as to whether passenger's signature to contract on ticket is necessary to 
 make same binding. 
 
 Cited in note (84 Am, St. Rep. 403, 404) on binding effect of conditions in 
 unsigned passenger tickets. 
 Omission of paMeBgrer to re** contract o pam or ticket. 
 
 Cited in Fonseca v. Cunard S. S. Co. 153 Mass. 557. 12 L. R. A. 341, 25 Am. 
 St. Rep. 660. 27 X. E. 665, holding passenger cannot plead ignorance of terms 
 of contract printed on back of ticket; Mnldoon v. Seattle City R. Co. 10 Wash. 
 314. 45 Am. St. Rep. 787, 38 Pac. 995, holding person riding on free pass bound 
 by condition printed thereon limiting liability of carrier, whether be reads it 
 or not: Boering v. Chesapeake Beach R. Co. 20 App. D. C. 510, and Rogers T. 
 Kennebec S. B. Co. 86 Me. 267. 25 L. R, A. 496. 29 Atl. 1069, holding person 
 using pass bound by condition exempting earner from liability for negligence, 
 
5 L.R.A. 846] L. R. A. CASES AS AUTHORITIES. 986 
 
 although pass not seen, nor condition known; Aiken v. Wabash R. Co. 80 Mo. 
 App. 15, holding, when special contract limiting liability as to baggage printed 
 on face of ticket, reading is presumed; Harmon v. Jensen, 100 C. C. A. 115, 
 176 Fed. 523, holding passenger riding on regular passenger train who has 
 paid usual fare and holds ticket which he may rightly suppose is in common 
 form, may reasonably presume ticket is what circumstances require it to be, 
 if nothing appear to repel presumption, even if condition be found on closer 
 inspection; Boering v. Chesapeake Beach R. Co. 193 U. S. 450, 48 L. ed. 745, 
 24 Sup. Ct. Rep. 515, holding acceptance of pass containing assumption of risk 
 by passenger binding on passenger though notice of stipulation not brought home 
 to him; Brian v. Oregon Short Line R. Co. 40 Mont. 113, 25 L.R.A.(N.S.) 461, 
 105 Pac. 489, holding passenger who accepts special ticket containing conditions, 
 acts upon it and is carried part way bound by conditions whether he has read 
 or signed it; French v. Merchants' & M. Transp. Co. 199 Mass. 435, 19 L.R.A. 
 <N.S.) 1009, 127 Am. St. Rep. 506, 85 N. E. 424, holding one who purchases and 
 accepts ticket on which terms and conditions are printed bound thereby whether 
 he reads contract or not. 
 
 Cited in note (99 Am. St. Rep. 367, 368) on effect of conditions on ticket 
 not known to passenger. 
 Assumption of risk by free passenger. 
 
 Cited in Doyle v. Fitchburg R. Co. 166 Mass. 495, 33 L. R. A. 846, 55 Am. 
 St. Rep. 417, 44 N. E. 611, holding railroad liable for injury to employee rid- 
 ing on free ticket, which in terms exempts company from liability for negli- 
 gence; Payne v. Terre Haute & I. R. Co. 157 Ind. 620, 56 L. R. A. 474, 62 N. E. 
 472; Muldoon v. Seattle City R. Co. 7 Wash. 530, 22 L. R. A. 798, 38 Am. St. 
 Rep. 901, 35 Pac. 422; Northern P. R. Co. v. Adams, 192 U. S. 452, 48 L. ed. 
 517, 24 Sup. Ct. Rep. 408, holding that passenger, riding on free pass limit- 
 ing liability of carrier for negligence, cannot recover for injuries; Louisville, 
 N. A. & C. R. Co. v. Keefer, 146 Ind. 34, 38 L. R. A. 96, 58 Am. St. Rep. 348, 44 
 N. E. 796, holding contract between carrier and express company, limiting car- 
 rier's liability for negligence, binding on messenger; Hosmer v. Old Colony R. 
 Co. 156 Mass. 508, 31 N. E. 652, holding agreement of express messenger, rid- 
 ing in baggage car, to assume all risk of injury therefrom, includes injuries 
 not attributable to riding in baggage car; Holly v. Southern R. Co. 119 Ga. 
 771, 47 S. E. 188, holding carrier not liable for loss of baggage of passenger 
 riding on gratuitous pass, the pass providing against such liability. 
 "Who are free passenger*. 
 
 Cited in Doyle v. Fitchburg R. Co. 166 Mass. 496, 33 L. R. A. 846, 55 Am. 
 St. Rep. 417, 44 N. E. 611, holding ticket issued to employee, without charge, 
 to ride to and from work, not gratuity. 
 
 Distinguished in Heyward v. Boston & A. R. Co. 169 Mass. 469, 48 N. E. 773, 
 holding person riding on shipper's pass in caboose of freight train not free 
 passenger. 
 
 5 L. R. A. 849, FARRINGTON v. SOUTH BOSTON R. CO. 150 Mass. 406, 15 
 
 Am. St. Rep. 222, 23 N. E. 109. 
 Title of pledgees. 
 
 Cited in Germania Safety-Vault & T. Co. v. Boynton, 19 C. C. A. 120, 37 U. 
 S. App. 602, 71 Fed. 799, holding pledgee of corporation securities for private 
 purpose of officer of corporation risks losing them, if officer has abused trust; 
 Buffalo German Ins. Co. v. Third Nat. Bank, 19 Misc. 569, 43 N. Y. Supp. 550, 
 holding pledgee of stock, having actual or constructive notice of infirmity in ti- 
 tle of holder, takes only title of pledgeor; Farmers' Bank v. Diebold Safe & Lock 
 
987 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 851 
 
 Co. 66 Ohio St. 377, 58 L. R. A. 624, 90 Am. St. Rep. 586, 64 N. E. 518, holding 
 
 that pledgee taking stock without inquiry, and without transfer on books, takes 
 
 same subject to equities of prior assignee from whom certificate had been 
 
 stolen. 
 
 Liability for acts of agent adverse to principal. 
 
 Cited in Manhattan L. Ins. Co. v. Forty-second Street & G. Street Ferry R 
 Co. 139 N. Y. 151, 34 N. E. 776, holding agent cannot bind principal where he is 
 known to be acting for himself, or to have adverse interest; Bank of New York 
 v. American Dock & T. Co. 70 Hun, 154, 24 N. Y. Supp. 406, holding that use, 
 by officer of corporation, of official position for his own benefit in contract for 
 company, puts other contracting party on inquiry; First Nat. Bank v. Foote. 
 12 Utah, 171, 42 Pac. 205, holding third party dealing with agent bound to 
 ascertain whether representations are authorized by principal; Wheeling Ice & 
 Storage Co. v. Conner, 61 W. Va. 124, 55 S. E. 982, holding in the absence of 
 proof of authority corporation not liable on personal notes of its secretary who 
 has inuorsed name of corporation as accommodation indorser; Farmers' Loan 
 & T. Co. v. Madison Mfg. Co. 153 Fed. 321, holding one not a bona fide holder 
 who receives bonds or stock from officer who is exercising functions of office 
 and at same time using securities for own pecuniary benefit. 
 
 Distinguished in Havens v. Bank of Tarboro, 132 N. C. 226, 95 Am. St. Rep. 
 627, 43 S. E. 639, holding bank liable to pledgee of cashier who fraudulently is- 
 sued to himself certificates signed by president in blank. 
 Liability of corporation for overissued stock. 
 
 Cited in First Avenue Land Co. v. Parker, 111 Wis. 9, 87 Am. St. Rep. 841, 
 86 N. W. 604, holding corporation liable in tort to purchaser of overissued 
 stock signed by officers, if purchaser ignorant of falsity of certificate, and free 
 from negligence; Rogers v. Southern Fiber Co. 119 La. 718, 121 Am. St. Rep. 
 537, 44 So. 442, holding corporation not liable for fraudulent issue of stock by 
 its president where he is knowingly acting for himself; Lucile Dreyfus Min. 
 Co. v. Willard, 46 Wash. 356, 89 Pac. 935, holding corporation not liable for 
 fraudulent issue of stock by agent where he acts in dual capacity of officer of 
 company and agent for stock purchaser in transactions appertaining to his 
 personal interests from which company receives no benefits. 
 
 Cited in footnote to The Jennie Clarkson Home for Children v. Missouri K. 
 & T. R. Co. 70 L.R.A. 787, which holds corporation canceling registration of 
 bonds and making them payable to bearer contrary to agreement liable to 
 owner for their value, although transfer agent was deceived by forgeries of 
 owner's agent while acting outside scope of authority. 
 
 Cited in notes (19 L. R. A. 332) on liability of corporation for fraud or for- 
 gery of its officers in issue of stock; (13 L. R. A. 193) on nonliability of cor- 
 poration for misfeasance of its officers; (87 Am. St. Rep. 848, 851, 853) on 
 fraudulent and over-issued corporate stock. 
 
 5 L. R. A. 851, HESSEL v. JOHNSON, 129 Pa. 173, 15 Am. St. Rep. 716, 18 
 
 Atl. 754. 
 Relation of landlord and tenant necessary to risrht of distraint. 
 
 Cited in Hessel v. Johnson, 142 Pa. 12, 11 L. R. A. 855, 28 W. N. C. 104, 21 
 Atl. 794, holding subtenant's goods not subject to distraint for rent accruing 
 under new lease between landlord and assignee of first lessee, without notice 
 to subtenant; McDonald v. May, 96 Mo. App. 247, 69 S. W. 1059, holding sub- 
 lessee liable to original lessor for whole term after attornment; Thompson v. 
 Stieren, 59 Pittsb. L. J. 542, holding that sub-tenant has right to possession 
 After tenant surrenders to landlord; Terheyden v. Dallet, 38 Pittsb. L. J. N. S. 
 
5 L.R.A. 851) L. R. A. CASES AS AUTHORITIES. 988 
 
 339; Cuschner v. Westlake, 43 Wash. 695, 86 Pac. 948, holding under lessee's 
 interest cannot be defeated by mesne lessee's surrender of his estate to lessor. 
 
 Cited in footnote to Hutsell v. Deposit Bank, 39 L. R. A. 403, which holds 
 that right of distress does not pass to assignee of rent note. 
 
 Cited in notes (117 Am. St. Rep. 100) on sub-letting of leased premises; (7 
 L.R.A. (N.S.) 221) on effect of surrender of original lease on rights of sub-lessee. 
 Interest as badge of intention. 
 
 Cited in New Idea Pattern Co. v. Whitner, 215 Pa. 196, 64 Atl. 518, holding 
 preliminary injunction to restrain merchant from displaying goods of other than 
 company whose agent he is, properly refused, where contract does not prohibit 
 sale of other's goods, and it being to best interest of merchant to sell goods 
 of others. 
 
 5 L. R. A. 853, DE TURK v. COM. 129 Pa. 151, 15 Am. St. Rep. 705, 18 Atl. 
 
 757. 
 Eligibility to office. 
 
 Cited in State ex rel. Thompson v. McAllister, 38 W. Va. 514, 24 L. R. A. 353,. 
 18 S. E. 770 (dissenting opinion), majority holding that under statute requir- 
 ing members of municipal council to be freeholders, one must be freeholder at 
 time of election; Com. ex rel. Sheridan v. Giles, 2 Lack. Legal News, 226, hold- 
 ing that payment of borough tax, and resignation of office, after service of quo 
 warranto, operated to remove disqualification of councilman as to subsequent 
 appointment to fill vacancy; Com. v. Allen, 15 Pa. Co. Ct. 258, holding county 
 attorney entitled to make suggestions for writs of quo warranto against coun- 
 ty officers; Com. v. Murphey, 11 Pa. Dist. R. 361, holding member of legislature 
 may hold office of town clerk, the duties of the latter office being clerical only; 
 Com. ex rel. Dist. Atty. v. Miller, 30 Pa. Co. Ct. 612, 14 Pa. Dist. R. 668, 
 holding district attorney of county may maintain proceedings of quo warranta 
 to question title to office of councilman. 
 
 Cited in footnotes to State ex rel. Childs v. Sutton, 30 L. R. A. 630, which 
 holds disability of member of legislature to hold other office during term not 
 affected by resignation; Atty. Gen. ex rel. Moreland v. Detroit, 37 L. R. A. 211, 
 which holds office of governor incompatible with that of mayor of city: State 
 ex rel. Walker v. Bus, 33 L. R. A. 616, which holds deputy sheriff not state 
 officer within prohibition against holding county or municipal office; State ex 
 rel. Taylor v. Sullivan, 11 L. R. A. 272, which holds alien, who had not de- 
 clared his intention to become a citizen at time of election, not entitled there- 
 to, notwithstanding declaration; Steusoff v. State, 12 L. R. A. 364, which holds 
 citizen of state eligible to county office notwithstanding removal into county 
 so recently that he cannot vote. 
 
 Cited in notes (13 L. R. A. 670) on incompatibility of offices; (11 L. R. A. 
 613) on holding separate offices; (86 Am. St. Rep. 585, 586, 589) on loss of 
 one office by accepting another. 
 Perfecting title by resignation of one of two offices. 
 
 Cited in Com. ex rel. Ryan v. Haeseler, 161 Pa. 96, 34 W. N. C. 340, 28 Atl. 
 1014, holding that person chosen school director and also treasurer of school 
 board may elect which office he will retain, but cannot hold both; State ex rel. 
 Kierskey v. Kelly, 80 Miss. 810, 31 So. 901, holding that disqualification for office 
 of city assessor may be removed by resignation from office of postmaster; Hoy 
 v. State, 168 Ind. 519, 81 N. E. 509, 11 A. & E. Ann. Gas. 944, holding title 
 to office of councilman may be perfected by resignation before commencement 
 of term of office in trust company having business dealings with city. 
 
989 L. R. A. CASES AS AUTHORITIES. [5 L.R.A. 856 
 
 Cited in note (124 Am. St. Rep. 219) on effect of election where successful 
 candidate is ineligible. 
 
 Distinguished in Bishop v. State, 149 Ind. 233, 39 L. R. A. 281, footnote p. 
 278, 63 Am. St. Rep. 279, 48 N. E. 1038, holding that appointment as postmas- 
 ter of one filling office of township trustee operates as surrender of latter 
 office. 
 Enforcement of constitutional provisions. 
 
 Cited in Com. v. Murphey, 25 Pa. Co. Ct. 638, 17 Montg. Co. L. Rep. 175, hold- 
 ing constitutional provision that "general assembly may by law declare what 
 offices are incompatible" not applicable to provision prohibiting appointment 
 of state senator or representative to civil office during term; Ex parte Cain, 
 20 Okla. 127, 1 Okla. Crim. Rep. 8, 93 Pac. 974, holding provisions in consti- 
 tution prohibiting manufacture, sale, barter or giving away of intoxicating 
 liquors, contrary to said provisions self -executory ; Ex parte McN aught, 23 
 Okla. 292, 1 Okla. Grim. Rep. 266, 100 Pac. 27, holding provisions in constitution 
 "that no person shall be prosecuted criminally in courts of record otherwise than 
 by presentment, indictment or information, and that no person shall be prose- 
 cuted for felony by information without preliminary examination, self-executing; 
 Ex parte Show, 4 Okla. Crim. Rep. 429, 113 Pac. 1062, holding that prohibitory 
 constitutional provisions are usually self-executing, even though legislation with 
 respect thereto may be desirable. 
 
 Cited in note (16 L. R. A. 282) on self-executing constitutional provisions. 
 
 Distinguished in Wilkes-Barre v. Stewart, 10 Kulp, 29, holding that rule 
 that legislation necessary to make constitutional provision operative, if ap- 
 plicable to matter of appeals from summary convictions by mayor, had been 
 complied with. 
 
 5 L. R. A. 855, LOUISVILLE & N. R. CO. v. WILSEY, 11 Ky. L. Rep. 419. 
 Excessive verdict. 
 
 Cited in Harvey v. Atlantic Coast Line R. Co. 153 N. C. 585, 69 S. E. 627, 
 -to the point that verdict of $2,500 was grossly excessive and indicative of 
 prejudice, where passenger was wrongfully ejected and had to walk two miles 
 -to depot. 
 
 Cited in note (26 L.R.A. 393) on power of appellate court over excessive 
 verdict. 
 
 5 L. R. A. 856, TALBOTT v. STEMMONS, 89 Ky. 222, 25 Am. St. Rep. 531, 12 
 
 S. W. 297. 
 Contracts; sufficiency of consideration. 
 
 Cited in Stovall v. McCutchen, 107 Ky. 580, 47 L. R. A. 288, 92 Am. St. Rep. 
 373, 54 S. W. 969, holding mutual promises to close places of business at desig- 
 nated hour sufficient to sustain agreement; Harlan v. Harlan, 102 Iowa, 705, 
 72 N. W. 286, holding promise to care for third person sufficient consideration 
 for promise to pay for services; Hamer v. Sidway, 124 N. Y. 547, 12 L. R. A. 
 470, 21 Am. St. Rep. 693, 27 N. E. 256, holding abstaining from liquor, tobacco, 
 swearing, cards, and billiards, sufficient consideration for promise to pay money; 
 Central University v. Cox, 136 Ky. 264, 124 S. W. 299, holding recovery may 
 be had on note payable in event of uncertain contingency where condition has 
 taken place; Bush v. Whitaker, 45 Misc. 78, 91 N. Y. Supp. 616, holding con- 
 sideration not inadequate where nephew furnished care to uncle in consideration 
 of promise to make provision in will for stated amount therefor; Street v. 
 Gait, 136 App. Div. 726, 121 N. Y. Supp. 514, holding promise of vendor that 
 he would indemnify vendee against loss for defective goods which latter had 
 
5 L.R.A. 856] L. R. A. CASES AS AUTHORITIES. 990- 
 
 sold to another, whereby vendee has goods returned to it and sale lost, based 
 on sufficient consideration; Buhler v. Trembly, 139 Mich. 572, 108 N. W. 343, 
 on sufficiency of agreement to live in particular house as consideration for 
 agreement to convey. 
 
 Cited in footnote to Ballard v. Burton, 1G L. R. A. 664, which holds forbear- 
 ance to withdraw money from bank consideration for third person signing cer- 
 tificate of deposit as surety. 
 
 Cited in notes (12 L.R.A. 468, 471) on consideration essential to valid con- 
 tract; (6 Eng. Rul. Cas. 22) on what may constitute consideration for contract. 
 
 5 L. R. A. 858, PENNY v. CROUL, 76 Mich. 471, 43 X. W. 649. 
 
 Report of subsequent action between same parties to recover value of cer- 
 tain bonds in 87 Mich. 15, 13 L. R. A. 83, 49 N. W. 311. 
 Trusts; statute of frauds. 
 
 Cited in Eipper v. Benner, 113 Mich. 80, 71 N. W. 511, holding statute of 
 frauds not applicable to trust in personal property; Rapley v. McKinney, 143' 
 Mich. 513, 107 N. W. 101, holding parol agreement by vendee of purchaser at 
 mortgage foreclosure sale to convey part to railroad for right of way and pay 
 consideration therefor to mortgagor, void. 
 Certainty in creation of trust. 
 
 Cited in Caspari v. Cutcheon, 110 Mich. 90, 67 N. W. 1093, holding bequest of 
 fund to trustees to invest at their discretion, and pay income to daughter,, 
 and, upon her death, giving fund to her children, or, if childless, then to per- 
 sons named, not void for uncertainty. 
 
 Cited in footnote to People ex rel. Atty. Gen. v. Dashaway Asso. 12 L. R. A. 
 117, which holds promotion of cause of temperance too vague description of" 
 purpose for which corporation formed. 
 Corporation as trustee. 
 
 Cited in notes (14 L. R. A. 70) on trustee of municipal corporation as trus- 
 tee for charity; (11 L. R. A. 715) on corporations as trustees; (7 L. R. A.- 
 766) on administration of public charities by municipal corporations. 
 Devise to charitable use. 
 
 Cited in note (6 L. R. A. 84) on what constitute public charities. 
 Rule agrainst perpetuities. 
 
 Cited in notes (11 L.R.A. 86) on rule against perpetuities not applicable to> 
 charities; (49 Am. St. Rep. 127) on rule against perpetuities. 
 
 5 L. R. A. 864, RIPPE v. CHICAGO, M. & ST. P. R. CO. 42 Minn. 34, 43 N. W.. 
 
 652. 
 Fences to railroad right of -way. 
 
 Cited in notes (8 L.R.A. 136) on liability of railroad for death or injury 
 to cattle by failure to fence; (27 L.R.A. (N.S.) 797) on duty of railroad to 
 fence within limits of city, town, or village. 
 
L. R A. CASES AS AUTHORITIES. 
 
 OASES IN" 6 L. R A. 
 
 6 L. R. A. 33, FERGUSON v. RAFFERTY, 128 Pa. 337, 18 Atl. 484. 
 Parol evidence to vary written instrument. 
 
 Cited in Baum v. Lynn, 72 Miss. 939, 30 L. R. A. 443, 18 So. 428, holding re- 
 lease embodied in conveyance as consideration not contradictable by parol, and 
 referring approvingly to annotation in 6 L. R. A. 33 ; American Harrow Co.. 
 v. S \voope, 16 Pa. Super. Ct. 456, holding evidence of representations as to con- 
 tents, inducing signing of contract by one unable to read English, admissible 
 to vary it; Wilson v. Pritchett, 99 Md. 593, 58 Atl. 360, holding unauthorized' 
 false statements of agent admissible. 
 
 Cited in footnotes to Brook v. Latimer, 11 L. R. A. 805, which holds parol 
 evidence that note given as receipt for advancement to maker admissible; Mc- 
 Collum v. Boughton, 35 L. R. A. 480, which holds parol evidence that wife's 
 deed of trust of legal estate is security for husband alone on note signed by~ 
 him and others, inadmissible; Horn v. Hansen, 22 L. R. A. 617, which holds 
 oral evidence inadmissible to contradict unilateral agreement so far as written. 
 
 Cited in notes (13 L. R. A. 622) on admissibility of parol evidence to vary 
 terms of written instrument; (17 L. R. A. 271, 274) on admissibility of paror 
 evidence to vary 3 add to, or alter written contract; (13 L. R. A. 54) on parol evi- 
 dence as affecting indorsement; (6 L. R. A. 165) on parol evidence of considera- 
 tion; (6 L.R.A. (N.S.) 943) on parol evidence to correct misdescription of land 
 in will. 
 
 Distinguished in Russell v. Glass \Yorks, 3 Lack. Legal News, 189, 6 Pa. Dist. 
 R. 458, holding evidence of preceding negotiations inadmissible to vary written 
 contract. 
 
 Criticized in Newman v. Baker, 10 App. D. C. 199, holding parol evidence of 
 agreement that deed should take effect upon subsequent condition inadmissible. 
 To identify person named in. 
 
 Cited in Carl v. State, 125 Ala. 102, 28 So. 505, holding parol evidence admissi- 
 ble to identify person as beneficiary in will. 
 To supplement deficiencies. 
 
 Cited in Myers v. Taylor, 107 Tenn. 370, 64 S. W. 719, and American Contract 
 Co. v. Bullen Bridge Co. 29 Or. 561, 46 Pac. 138, holding, where writings do not 
 contain entire agreement, parol evidence admissible. 
 
 Cited in footnote to Colgate v. Latta, 26 L. R, A. 321, which upholds right to- 
 show order by agent for shipment of goods to have been for purpose not ex- 
 pressed in instrument. 
 
 Cited in note (6 L. R. A. 324) on parol and extrinsic evidence to aid con- 
 struction. 
 
 991 
 
6 L.R.A. 33] L. R. A. CASES AS AUTHORITIES. 992 
 
 To prove contemporaneous collateral agreement. 
 
 Cited in Barnett v. Pratt, 37 Neb. 352, 55 N. W. 1050, holding provable by 
 parol promise to assume debt, on faith of which written agreement was executed: 
 Hines v. Willcox, 96 Tenn. 153, 34 L. R, A. 827, 54 Am. St. Rep. 823, 33 S. W. 
 914, holding landlord's agreement to repair, as inducement to make written lease, 
 provable by parol ; Davis v. Reyner, 12 Montg. Co. L. Rep. 53, holding evidence 
 of contemporaneous parol promise not to enter judgment admissible to vary 
 judgment note; Smith v. Harvey, 4 Pa. Super. Ct. 382, 40 W. N. C. 232, holding 
 evidence of contemporaneous parol agreement as to water supply, inducing its 
 execution, admissible to vary lease; Smith v. Kugler, 14 Montg. Co. L. Rep. 84, 
 raising, without deciding, how far a written, sealed lease may be modified by con- 
 temporaneous parol agreement; Eugene Dietzgen Co. v. Kokosky, 113 La. 456, 
 66 L.R.A. 506, 37 So. 24, holding evidence of parol agreement admissible to 
 show source of written agreement; Southard v. Arkansas Valley & W. R. Co. 
 24 Okla. 420, 103 Pac. 750, holding parol evidence inadmissible to show con- 
 temporaneous condition or consideration except upon allegations of fraud or 
 mistake in action on written contract; Farrell v. Coatesville, 214 Pa. 297, 63 
 Atl. 742, holding evidence of parol qualification with agent if limited authority 
 inadmissible to vary written instrument between contractor and principal; Per- 
 kiomen R. Co. v. Bromer, 217 Pa. 268, 66 Atl. 359, Affirming 30 Pa. Co. Ct. 
 587, 21 Montg. Co. L. Rep. 206, holding parol promise to build a bridge, in con- 
 sideration of deed to right of way admissible though not provided for in deed; 
 Harrison v. Focht, 18 Pa. Dist. R. 14, holding contemporaneous oral agreement 
 to keep leased premises in repair admissible as a defense in action on lease for 
 rent; Continental Title & T. Co. v. Harvey, 11 Pa. Dist. R. 624, holding an 
 executed written release from liability for breach of a contract cannot be de- 
 feated by introduction of a contemporaneous oral condition where both parties 
 were dealing at arms length free from mistake or fraud. 
 
 Distinguished in Continental Title & T. Co. v. Harvey, 27 Pa. Co. Ct. 584, hold- 
 ing, in absence of fraud or mistake, evidence of contemporaneous oral agreement 
 whereby written release of damages was in certain event to become inoperative, 
 inadmissible. 
 Nature of proof required. 
 
 Cited in Streator v. Paxton, 201 Pa. 145, 50 Atl. 926, holding clear, precise, in- 
 dubitable proof of contemporaneous parol agreement required to vary written 
 instrument; Yeager v. Cassidy, 12 Pa. Super. Ct. 235, 16 Lane. L. Rev. 308, 
 holding evidence of several witnesses as to parol reservation of crop from written 
 agreement of sale properly submitted to jury; Todd v. Braught, 6 Pa. Dist. R. 
 602, holding preponderance of parol evidence necessary to vary written instru- 
 ment. 
 Replevin; rig-lit to maintain. 
 
 Cited in Ferguson v. Lauterstein, 160 Pa. 432, 34 W. N. C. 320, 28 Atl. 852, 
 holding lessor may replevin furniture from purchaser under judgment against 
 lessee; Brown v. Ravenscraft, 88 Md. 225, 44 Atl. 170, holding one cotenant may 
 maintain replevin if nonjoinder of other not pleaded in abatement. 
 
 6 L. R. A. 48, BROWNFIELD v. JOHNSON, 128 Pa. 254, 18 Atl. 543. 
 Sufficiency of delivery of goods. 
 
 Cited in notes (26 L.R.A.(N.S.) 24, 25, 56, 65) on sufficiency of selection or 
 designation of goods sold out of larger lot; (23 Eng. Rul. Cas. 256) on neces- 
 sity of ascertainment of goods sold to passing of title. 
 
 Distinguished in Staake v. Pennsylvania R. Co. 231 Pa. 470, 80 Atl. 1102, 
 
993 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 52 
 
 holding that no title to property passes upon owner giving order on railroad 
 company to deliver part of quantity of iron ore held in storage, which order 
 is countermanded before such quantity ia separated from bulk. 
 
 6 L. R. A. 50, HJXTRAGER v. MAHONY, 78 Iowa, 537, 43 N. W. 522. 
 Redemption from tax Male. 
 
 Cited in Bray & C. Land Co. v. Newman, 92 Wis. 274, 65 N. W. 494, holding 
 land owner paying taxes included in treasurer's statement not affected by sale for 
 taxes negligently omitted; Burchardt v. Scofield, 141 Iowa, 341, 133 Am. St. 
 Rep. 173, 117 N. W. 1061, holding taxpayer entitled to equitable relief where 
 his honest and timely efforts to redeem are frustrated by misinformation from 
 treasurer; Squire v. McCarthy, 77 Xeb. 435, 112 N. W. 327, holding acceptance 
 by county treasurer of back tax and interest and issuance of tax receipt without 
 notice to taxpayer of pending tax sale is a satisfaction of decree entitling him 
 to recover his land. 
 
 Cited in notes (9 L. R. A. 768) on redemption from tax sale; (20 L. R. A. 489) 
 on validity of tax sales where nonpayment is due to mistake or negligence of tax 
 officers. 
 Appeal from executed judgment. 
 
 Cited in Weaver v. Stacy, 93 Iowa, 688, 62 N. W. 22, holding election to file 
 separate petitions against defendants waives error in striking out for misjoinder; 
 93 Iowa, 691, 62 X. W. 24, holding payment to redeem from sheriff's sale waives 
 appeal, so far as affecting estate redeemed; State v. Lambert, 52 W. Va. 250, 
 43 S. E. 176, dismissing, after election, writ of error to judgment of mandamus 
 commanding placing of candidate's name on ballot; Loesche v. Goerdt, 123 Iowa, 
 57, 98 N. W. 571, holding resistance of mandamus action to compel school town- 
 ship secretary to certify tax will not prevent imputation of laches to taxpayers 
 seeking to enjoin its collection. 
 Appeal from unfavorable part only of judgment. 
 
 Cited in note (29 L.R.A. (X.S. ) 28) on right to appeal from unfavorable 
 while accepting favorable part of decree, judgment or order. 
 
 6 L. R, A. 52, HARDIN v. IOWA R. & COXSTR. CO. 78 Iowa, 726, 43 X. W. 543. 
 Attorneys; disputed verbal stipulation. 
 
 Cited in Council Bluffs Loan & T. Co. v. Jennings, 81 Iowa, 475, 46 X. W. 1006, 
 holding disputed verbal agreement to postpone trial not provable by testimony of 
 adverse party or attorney. 
 Corporations; directors' meetings. 
 
 Cited in Singer v. Salt Lake Copper Mfg. Co. 17 Utah, 156, 70 Am. St. Rep. 
 773, 53 Pac. 1024, holding meetings of duly constituted board of directors pre- 
 sumptively regular; Moore v. First Ruthven Circuit M. E. Church, 117 Iowa, 35, 
 90 X. W. 492, holding person seeking to show agreement with board of church 
 trustees need not show regularity of meeting. 
 Corporation's liability for unauthorized acts. 
 
 Cited in Edwards v. Carson Water Co. 21 Xev. 486, 34 Pac. 381, holding cor- 
 poration not liable OB unauthorized note. 
 
 Distinguished in Gribble v. Columbus Brewing Co. 100 Cal. 74, 34 Pac. 527, 
 holding corporation estopped from questioning president's authority to insert in 
 note provision for attorney's fees. 
 L.R.A. Au. Vol. L 63. 
 
6 L.R.A. 54] L. E. A. CASES AS AUTHORITIES. 994 
 
 6 L. R. A. 54, PORT HURON v. JENKIXSON, 77 Mich. 414, 18 Am. St. Rep. 409, 
 
 43 N. W. 923. 
 Vnreasoiiable OP impossible requirements. 
 
 Cited in Benton Harbor v. St. Joseph & B. H. Street R. Co. 102 Mich. 391, 26 
 L. R, A. 246, 47 Am. St. Rep. 553, 60 N. W. 758, holding mandamus will not 
 lie to compel insolvent street railway company to pave between tracks; Auditor 
 General v. Hoffman, 129 Mich. 542, 89 N. W. 348, holding ordinance imposing tax 
 on lot owner for cost of walk built by city, upon his failure to do so within five 
 days after notice, void. 
 
 Cited in note (78 Am. St. Rep. 270) on acts which legislature may declare 
 criminal. 
 Expense of local improvements. 
 
 Cited in note (28 L. R. A. 499) on charging expense of grading for sidewalk on 
 abutting owner. 
 
 6 L. R. A. 56, LODI TWP. v. STATE, 51 N. J. L. 402, 18 Atl. 749. 
 Constitutional lavr; class legislation. 
 
 Cited in State, Alexander, Prosecutor, v. Elizabeth, 56 N. J. L. 80, 23 L. R. A. 
 529, 28 Atl. 51, holding act regulating race-courses, distinguishing between those 
 established prior and subsequent to certain date, unconstitutional; Weaver v. 
 Davidson County, 104 Tenn. 329, 59 S. W. 1105, holding act providing for salaries 
 of county officers, not operating uniformly, unconstitutional; Darcy v. San Jose 1 , 
 104 Cal. 647, 38 Pac. 500, holding arbitrary classification making special act 
 applicable to one city unconstitutional; Wagner v. Milwaukee County, 112 Wis. 
 608, 88 N. W. 577, holding act providing for construction of viaduct, applicable 
 only to one county, unconstitutional; Edmonds v. Herbrandson, 2 N. D. 274, 14 
 L. R. A. 727, 50 N. W. 970, holding act regulating relocation of county-seats, ex- 
 cepting counties having buildings then worth more than $35,000, unconstitu- 
 tional; Longview v. Crawfordsville, 164 Ind. 122, 68 L.R.A. 625, 73 N. E. 78, 
 3 A. & E. Ann. Cas. 496, holding an act special, which gave cities of certain 
 population specified privileges not warranted by any reasons inhering in the 
 classification; Kraus v. Lehman, 170 Ind. 420, 83 N. E. 714, 15 A. & E. Ann. 
 Cas. 849, holding an act prohibiting counties of specified population from con- 
 tracting for construction of courthouse unless on petition of freeholders, class 
 legislation and invalid; Angell v. Cass County, 11 N. D. 270, 91 X. W. 72. 
 holding a legislative division of counties for purpose of collecting taxes on 
 designated classes of real estate, unconstitutional; Chicago, M. & St. P. R. Co. 
 v. Westby, L.R.A. (N.S.) , 102 C. C. A. 65, 178 Fed. 625, on necessity 
 that class includes all who indistinguishably belong thereto. 
 
 Cited in footnotes to Hamilton County v. Rasche Bros. 19 L. R. A. 584, which 
 holds statute as to taxes not applying to all parts of state unconstitutional ; 
 Milwaukee County v. Isenring, 53 L. R. A. 635, which holds act regulating sheriff's 
 fees for particular county, local. 
 
 Cited in note (7 L. R. A. 195) on constitutionality of classification of cities 
 by statute. 
 
 Distinguished in State, Miles, Prosecutor, v. Bergen County, 52 N. J. L. 304, 
 19 Atl. 718, holding act excepting roads under county road board not special. 
 
 6 L. R. A. 57, STATE ex rel. STOCKTON v. SOMERS' POINT, 52 N. J. L. 32, 18 
 
 Atl. 694. 
 Constitutional la\\ : special or class legislation. 
 
 Cited in State, Alexander, Prosecutor, v. Elizabeth., 56 N. J. L. 80, 23 L. R. A. 
 
995 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 59 
 
 529, footnote, p. 525, 28 Atl. 51, holding act distinguishing between race-courses 
 established prior and subsequent to certain date unconstitutional; State, Bowker, 
 Prosecutrix, v. Wright, 54 N. J. L. 132, 23 Atl. 116, holding act authorizing lay- 
 ing out of streets on ocean front of cities bordering on ocean, constitutional; 
 Wagner v. Milwaukee County, 112 Wis. 608, 88 N. W. 577, holding act pro- 
 viding for construction of viaduct, applicable to one county only, unconstitu- 
 tional; Edmonds v. Herbrandson, 2 N. D. 275, 14 L. R. A. 727, 50 N. W. 970 r 
 holding act regulating relocation of county-seats, excepting counties having build- 
 ings then worth mor*e than $35,000, unconstitutional; Eckerson v. Des Moines, 
 137 Iowa, 471, 115 N. W. 177, on what constitutes local and special legislation. 
 
 Cited in footnotes to Hamilton County v. Rasche Bros. 19 L. R. A. 584, which 
 holds statute as to taxes not applying to all parts of state unconstitutional; 
 Milwaukee County v. Isenring, 53 L. R. A. 635, which holds act regulating sheriff's 
 fees for particular county local; Sutton v. State, 33 L. R. A. 589, which holds 
 classification of counties according to previous census, without regard to actual 
 population, void. 
 
 Cited in note (7 L. R. A. 195) on constitutionality of classification of cities 
 by statute. 
 Subject of act must be expressed in title. 
 
 Cited in Cooper v. Springer, 65 N. J. L. 161, 46 Atl. 589, holding title "Act 
 Requiring Payment of Debts of Certain Illegal Borough Governments" cannot 
 support creation of boroughs. 
 
 Effect of act providing- for municipal government in places of temporary 
 resort. 
 
 Cited in State, Green, Prosecutor, v. Clarke, 56 N. J. L. 69, 27 Atl. 924, holding 
 act providing for borough government in places of temporary resort does not 
 repeal prior legislation by implication. 
 Illegal borough governments. 
 
 Cited in Cooper v. Springer, 65 N. J. L. 595, 48 Atl. 605, holding legislature 
 may compel payment of debts by illegally organized borough. 
 
 6 L. R. A. 58, HUBBARD v. HUBBARD, 74 Wis. 650, 43 N. W. 655. 
 Divorce; adultery of plaintiff or other recrimination as defense. 
 
 Followed in Decker v. Decker, 95 111. App. 655, holding adultery of complainant 
 defense to action for divorce for cruelty and impotency. 
 
 Cited in Day v. Day, 71 Kan. 390, 80 Pac. 974, 6 A. & E. Ann. Cas. 169, 
 holding courts may in their discretion refuse to grant divorce where both parties 
 have been guilty of matrimonial offenses both of which are statutory grounds 
 for divorce though of a different character. 
 
 Cited in footnote to Decker v. Decker, 55 L. R. A. 697, which authorizes setting 
 up adultery of plaintiff suing for divorce for cruelty, in answer instead of in 
 cross-bill. 
 
 Cited in note (86 Am. St. Rep. 334, 338) on recrimination as defense in 
 divorce proceeding. 
 
 6 L. R. A. 59, BOGIE v. WAUPUN, 75 Wis. 1, 43 X. W. 667. 
 Liability for defect in footpath not part of hightvay. 
 
 Cited in Curtiss v. Bovina, 138 Wis. 663, 120 N. W. 401, holding town not 
 liable for injury caused by defect in bridge not part of highway and built by 
 private individuals. 
 
 Cited in footnote to State ex rel. James v. Kent County, 33 L. R. A. 291, which 
 
6 L.R.A. 59} L. R. A. CASES AS AUTHORITIES. 996 
 
 denies liability of county commissioner for nonrepair of footpath frequently used 
 by public to avoid going around bend in highway. 
 
 Cited in note (13 L.R.A. (N.S.) 1241) on liability of townships for defects 
 in highway. 
 
 fl L. R, A. 61, WILTON v. MAYBERRY, 75 Wis. 191, 17 Am. St. Rep. 193, 43 
 N. W. 901. 
 
 Equitable subrosration to rights of prior lienor. 
 
 Cited in Stewart v. Stewart, 90 Wis. 521, 48 Am. St. Rep. 949, 63 N". W. 886, 
 holding grantees under void deed discharging mortgage in good faith subrogated 
 to rights of mortgagee; Union Mortg. Bkg. & T. Co. v. Peters, 72 Miss. 1070, 30 
 L. R. A. 833, 18 So. 497, and Bank of Ipswich v. Brock, 13 S. D. 417, 83 N. W. 
 436, holding lender of money on third mortgage to pay first mortgage, upon bor- 
 rower's promise to satisfy second, equitable assignee of first; Home Sav. Bank v. 
 Bierstadt, 168 111. 625, 61 Am. St. Rep. 146, 48 N. E. 161, Affirming 68 HI. App. 
 661, holding person advancing money to pay lien on promise of first mortgagee 
 equitably subrogated as against intermediate mortgagee; Baker v. Baker, 2 S. D. 
 267, 39 Am. St. Rep. 776, 49 N. W. 1064, holding lender of money, upon debtor's 
 failure to execute promised new mortgage, equitable assignee of discharged mort- 
 gage; Cumberland Bldg. & L. Asso. v. Sparks, 49 C. C. A. 514, 111 Fed. 652, 
 holding one loaning money on defective mortgage to discharge prior mortgage 
 equitably subrogated as against subsequent purchaser; Re Lee, 105 C. C. A. 
 117, 182 Fed. 583, holding that person loaning money to pay existing encum- 
 brances with agreement for first lien may be subrogated to encumbrancer's 
 rights as against trustee in bankruptcy and subsequently acquired interests with 
 knowledge of circumstances; Gordon v. Stewart, 4 Neb. (Unof.) 864, 96 N. W. 
 624, holding the lender of money to pay off valid lien taking mortgage in good 
 faith, is not a volunteer and is entitled in equity to be subrogated to rights 
 of prior lienor though his mortgage is invalid; Charmley v. Charmley, 125 Wis. 
 304, 110 Am. St. Rep. 827, 103 N. W. 1106, holding a widow paying mortgage 
 to protect her homestead interest with intent to be repaid therefor is subro- 
 gated to right of mortgagee to extent of foreclosure or may trace proceeds of 
 the property, but not entitled to enforce claim against assets of husband's 
 general estate. 
 
 Cited in footnotes to Dorrah v. Hill, 32 L. R. A. 631, which sustains right of 
 one loaning money on invalid deed of trust to be subrogated to prior valid deed 
 paid off with money loaned; Meeker v. Larson, 57 L. R. A. 901, which denies right 
 of one furnishing money to discharge mortgage, to be subrogated to mortgagee's 
 Tights; Campbell v. Foster Home Asso. 26 L. R. A. 117, which denies subroga- 
 tion to prior mortgage paid without mortgagor's consent out of proceeds of in- 
 -valid mortgage. 
 
 Cited in notes (13 L.R.A. 619) on doctrine of subrogation; (99 Am. St. Rep. 
 501, 521) on right of subrogation. 
 
 L. R. A. 62, LESLIE v. BONTE, 130 111. 498, 22 N. E. 594. 
 "When judgment a bar. 
 
 Oited in Stanton v. Kenrick, 135 Ind. 392, 35 N. E. 19, holding former suit 
 between same parties a bar, because all issues might have been decided; Kessler 
 v. Armstrong Cork Co. 85 C. C. A. 642, 158 Fed. 748, holding a judgment in 
 an action between indorsee and drawee in favor of drawee is not conclusive 
 against payee as a discharge of the bill in favor of drawer where neither of the 
 two last mentioned persona were privies to such judgment; Illinois Title & T. 
 
997 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 65 
 
 Co. v. McCoy, 86 Kan. 594, 121 Pac. 1090, holding that judgment on notes in 
 state where made is conclusive here as to validity of notes. 
 
 Cited in footnote to Allred v. Smith, 65 L.R.A. 924, which holds judgment in 
 action quasi in rem binding on the parties only. 
 Merger of cause of action in judgment. 
 
 Cited in Jocelyn v. White, 201 111. 30, 66 N. E. 327, holding judgment taken on 
 interest coupon cannot be included in amount of foreclosure judgment, unless 
 declared on. 
 
 6 L. R. A. 65, UNITED STATES L. INS. CO. v. KIELGAST, 129 111. 557, 22 
 
 N. E. 467. 
 
 Second appeal in Gooding v. United States L. Ins. Co. 46 111. App. 308. 
 .Admissibility of coroner's inquisition. 
 
 Cited in Overtoom v. Chicago & E. I. R. Co. 80 111. App. 522, holding steno- 
 graphic notes of testimony at coroner's inquest inadmissible in action for death 
 produced by negligence; Overtoom v. Chicago & E. I. R. Co. 181 111. 329, 54 
 X. E. 898, holding transcript of stenographer's notes, taken on coroner's inquest, 
 inadmissible in action for negligent killing of intestate; Chicago City R. Co. v. 
 McLaughlin, 146 111. 361, 34 X. E. 796, holding evidence taken before coroner in- 
 admissible to show that it does not contradict one's own witness; Pyle v. Pyle, 158 
 111. 300, 41 X. E. 999, holding verdict of coroner's jury admissible to show suicide 
 of testator; Supreme Lodge K. of H. v. Fletcher, 78 Miss. 388, 29 So. 523, hold- 
 ing finding of coroner's inquest admissible on question whether insured was sui- 
 cide; Met/radt v. Modern Brotherhood, 112 Iowa, 526, 84 N. W. 498, holding 
 verdict of coroner's jury admissible, but not conclusive, on question of suicide; 
 Grand Lodge I. O. M. A. v. Wieting, 168 111. 412, 61 Am. St. Rep. 123, 48 N. E. 
 59, Affirming 68 111. App. 130, holding findings of coroner's inquisition on body 
 of insured admissible; Supreme Court of Honor v. Barker, 96 111. App. 498, 
 holding instruction to jury relating to coroner's inquest not in proper form; 
 Lake Shore & M. S. R. Co. v. Taylor, 46 111. App. 509, holding coroner's inquisi- 
 tion, but not depositions taken at inquest, admissible in action for negligently 
 causing death: National Woodenware & Cooperage Co. v. Smith, 108 111. App. 480, 
 holding finding of coroner's inquest that death due to deceased's carelessness ad- 
 missible in administrator's negligence action; Fein v. Covenant Mut. Ben. Asso. 
 60 111. App. 276, holding verdict of coroner's jury admissible in action on life 
 policy; Variety Mfg. Co. v. Landaker, 129 111. App. 634, on competency of 
 coroner's verdict as evidence of facts included therein; Chicago v. Cohen, 139 
 111. App. 246, holding coroner's verdict admissible as a whole though containing 
 statements of facts not within jurisdiction of such a jury if submitted under 
 proper instructions; Wilson v. Chicago City R. Co. 154 111. App. 636, holding 
 that verdict of coroner's jury is admissible in evidence in action for wrongful 
 death; Craiger v. Modern Woodmen, 40 Ind. App. 285, 80 X. E. 429 (dissenting 
 opinion), on admissibility of coroner's inquisition and inadmissibility of deposi- 
 tions taken therein; Mittelstadt v. Woodmen, 143 Iowa. 189, 136 Am. St. Rep. 
 765, 121 N. W. 803, holding that coroner's verdict that person insured committed 
 suicide is admissible as prima facie evidence of such fact in action on policy. 
 
 Cited in footnote to State v. Coleman, 69 L.R.A. 381, which holds reading of 
 coroner's verdict by prosecuting attorney in propounding question to witness 
 not ground for reversal in absence of exception merely because stated that the 
 homicide was unjustifiable. 
 
 Cited in notes (21 L.R.A. 425) on right to impeach one's own witness; (68 
 L.R.A. 290, 292, 294, 295, 296) on admissibility of finding of coroner to show 
 cause of death; (95 Am. St. Rep. 764) on coroner's inquest as evidence; (13T 
 
6 L.R.A. 65] L. R. A. CASES AS AUTHORITIES. 998 
 
 Am. St. Rep. 726) on proof of death in cases of accident and life insurance; 
 (11 Eng. Rul. Cas. 164) on discretion of court as to permitting cross-examination 
 of one's own witness. 
 
 Distinguished in Palenzke v. Bruning, 98 111. App. 648, holding coroner's in- 
 quest not judicial proceeding so as to protect him from action for mutilating 
 body; Colquit v. State, 107 Tenn. 383, 64 S. W. 713, holding verdict of coroner's 
 jury inadmissible in trial for murder; Knights Templars & M. Life Indemnity 
 Co. v. Crayton, 209 111. 563, 70 N. E. 1066, holding depositions taken at coroner's 
 inquest inadmissible to show cause of insured's death. 
 
 Disapproved in effect in Olwell v. Milwaukee Street R. Co. 92 Wis. 334, 66 
 N. W. 362, expressing opinion that record of coroner's inquest on body of child 
 cannot be used in action for negligently causing its death; Wasey v. Travelers' 
 Ins. Co. 126 Mich. 127, 85 N. W. 459, holding verdict of coroner's jury not evi- 
 dence to show insured a suicide; Cox v. Royal Tribe of Joseph, 42 Or. 370, 60 
 L. R, A. 624, footnote, p. 620, 95 Am. St. Rep. 752, 71 Pac. 73, which holds ver- 
 dict of coroner's jury inadmissible to prove facts found; Chambers v. Modern 
 Woodmen of America, 18 S. D. 177, 99 N. W. 1107, holding that verdict of 
 coroner's jury that insured committed suicide is inadmissible as evidence against 
 the beneficiary on an issue of suicide in action on benefit certificate; ^-Etna L. 
 Ins. Co. v. Milward, 118 Ky. 728, 68 L.R.A. 297, 82 S. W. 364, 4 A. & E. Ann. 
 Cas. 1092, holding coroner's verdict inadmissible on the issue of death in an 
 action on an accident policy; Queatham v. Modern Woodmen, 148 Mo. App. 
 48, 127 S. W. 651; Walden v. Bankers' Life Asso. 89 Neb. 552, 131 N. W. 962, 
 holding verdict of coroner's jury that insured committed suicide incompetent in 
 action on policy. 
 As effected by seal and signatures ol coroner. 
 
 Followed in Stollery v. Cicero & P. Street R. Co. 243 111. 295, 90 N". E. 709, 
 Affirming 148 111. App. 503, holding coroner's jury's verdict admissible in action 
 for negligent death, showing how death occurred though name and seal of 
 coroner was attached thereto. 
 
 6 L. R. A. 69, LOUISVILLE WATER CO v. COM. 89 Ky. 244, 12 S. W. 300. 
 
 Report of second appeal in 94 Ky. 47, 21 S. W. 246. 
 Action to collect taxes. 
 
 Cited in State v. Baltimore & O. R. Co. 41 W. Va. 91, 23 S. E. 677, holding 
 action to recover taxes against railroad not maintainable without statutory au- 
 thority; Hanson County v. Gray, 12 S. D. 125, 76 Am. St. Rep. 591, 80 N. W. 
 175, holding taxes on personal property can be collected by distress and sale, but 
 not by action; Central R. & Bridge Co. v. Com. 106 Ky. 330, 49 S. W. 456, holding 
 state can maintain action to collect franchise taxes under statute; Chicago, St. 
 L. & N. 0. R. Co. v. Com. 115 Ky. 281, 72 S. W. 1119, holding an act providing 
 for recovery by state of taxes not collectable by ordinary restraint and sale to 
 apply to railroad and other public service property; Covington v. Pullman Co. 
 121 Ky. 225, 89 S. W. 116, holding a taxpayer seeking injunction against col- 
 lection of a tax may be required by the court under prayer of counterclaim, 
 to pay the taxes into court; Illinois C. R. Co. v. Com. 128 Ky. 273, 108 S. W. 
 245, as a decision which caused legislature to pass an act changing the rule 
 laid down and authorizing action to collect taxes; Preston v. Sturgis Mill. Co. 
 32 L.R.A.(N.S.) 1031, 105 C. C. A. 293, 183 Fed. 14, holding that court cannot, 
 in absence of legislative authority collect tax levied against taxpayer. 
 
 Cited in footnote to Ma rye v. Diggs, 51 L. R. A. 902, which denies jurisdiction 
 ;in equity of suit for collection of taxes. 
 
 Cited in note (60 L. R. A. 855) on taxation of municipal waterworks. 
 
999 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 73 
 
 Overruled in part in Lexington v. Wilson, 118 Ky. 225, 80 S. W. 811, holding 
 city may maintain an action as for debt for collection of license tax where 
 ordinance imposing such tax provides no adequate procedure for collection. 
 
 6 L. R. A. 71, MILLER v. ROACH, 150 Mass. 140, 22 N. E. 634. 
 \Vlmt fa corporation note. 
 
 Cited in Reeve v. First Nat. Bank, 54 X. J. L. 211, 16 L. R. A. 145, footnote, 
 p. 143, 33 Am. St. Rep. 675, 23 Atl. 853, holding note signed with name of cor- 
 poration by its president, corporation paper; Gleason v. Sanitary Milk Supply 
 Co. 93 Me. 548, 74 Am. St. Rep. 370, 45 Atl. 825, holding note beginning "we 
 promise to pay," and signed with name of company and name of treasurer, 
 several note of corporation and treasurer; Aungst v. Creque, 72 Ohio St. 558, 
 74 X. E. 1073, holding note signed by firm name followed by names of secretary 
 and treasurer and president thereon designated as such officers, is the note of 
 the firm alone. 
 
 Cited in notes (19 L.R.A. 680) on personal liability of officers on note made 
 for corporation; (21 L.R.A. (N.S.) 1065) on effect of affixing corporate seal; 
 (4 Eng. Rul. Gas. 284) on corporation notes. 
 
 Distinguished in Xunnemacher v. Poss, 116 Wis. 448, 92 N. W. 375, holding 
 officers personally liable on note stating that corporation and "we, the under- 
 signed, promise to pay," signed with corporate name "by" them. 
 
 6 L. R. A. 72, GRAY v. HAMIL, 82 Ga. 375, 10 S. E. 205. 
 Compensation for partner's extra, services. 
 
 Cited in McAllister v. Payne, 108 Ga. 519, 34 S. E. 165, holding compensation 
 for extra services cannot be recovered by one partner in absence of agreement; 
 Miller v. Hale, 96 Mo. App. 430, 70 S. W. 258, holding partners, in absence of 
 agreement, entitled to equal compensation; Miller v. Hale, 96 Mo. App. 430, 
 70 S. W. 258, holding that where two persons contract to construct building, 
 no contract of partnership appearing they are entitled to equal share of com- 
 pensation though one performed more or harder work than the other. 
 
 Cited in notes (9 L.R.A. 424) on compensation of partners for services; (17 
 L.R.A. (X.S.) 391, 392, 396) on right of partner to compensation for services 
 to partnership. 
 Moral obligation as consideration. 
 
 Cited in C. H. Davis & Co. v. Morgan, 117 Ga. 506, 61 L.R.A. 149, 97 Am. St. 
 Rep. 171, 43 S. E. 732, holding moral obligation will not support promise to pay 
 more wages than stipulated in contract of employment for a year; Davis v. Mor- 
 gan, 117 Ga. 506, 61 L.R.A. 149, 97 Am. St. Rep. 171, 43 S. E. 732, holding an 
 agreement to pay more than contract stipulates is void unless supported by some 
 valuable consideration or constituting a substitution for the old contract. 
 
 Cited in notes (12 L.R.A. 471) on moral obligation as consideration; (6 Eng. 
 Rul. Cas. 42) on expense already incurred as consideration for subsequent 
 promise for reimbursement. 
 
 6 L. R, A. 73, LOWE v. RAWLIXS, 83 Ga. 320, 10 S. E. 204. 
 Rigrht of snbrogration. 
 
 Cited in footnotes to Dorrah v. Hill, 32 L. R. A. 631, which sustains right of 
 one loaning money on invalid deed of trust, to be subrogated to prior valid deed 
 paid off with money loaned; Campbell v. Foster Home Asso. 26 L. R. A. 117. 
 which denies subrogation to prior mortgage paid without mortgagor's consent 
 out of proceeds of invalid mortgage. 
 
6 L.R.A. 75] L. R. A. CASES AS AUTHORITIES. 1000 
 
 6 L. R. A. 75, HOWARD v. DELAWARE & H. CANAL CO. 40 Fed. 195. 
 Who are fellow servants. 
 
 Cited in Dixon v. Chicago & A. R. Co. 109 Mo. 426, 18 L. R. A. 800, 19 S. W. 
 412, holding quarry laborer and trainmen not fellow servants; Parker v. Hannibal 
 & St. J. R. Co. 109 Mo. 402, 18 L. R. A. 815, 19 S. W. 1119 (dissenting opinion), 
 majority holding section hands ballasting track not fellow servants of trainmen ; 
 Relyea v. Kansas City, Ft. S. & G. R. Co. 112 Mo. 100, 18 L. R. A. 822, 20 S. W. 
 480 (dissenting opinion), majority holding brakeman fellow servant of fireman on 
 other train; Pike v. Chicago & A. R. Co. 41 Fed. 97, holding bridge watchman 
 not fellow servant with trainmen. 
 
 Cited in footnotes to Baltimore & 0. R. Co. v. Andrews, 17 L. R. A. 190, which 
 holds conductor and engineer fellow servants of brakeman on other train; Clarke 
 v. Pennsylvania Co. 17 L. R. A. 811, which holds section boss of one gang and 
 member of another gang fellow servants; Fisher v. Oregon Short Line & U. N. R. 
 Co. 16 L. R. A. 519, which holds section foreman and conductor not fellow 
 servants. 
 
 Cited in notes (50 L. R. A. 434) on what servants are deemed to be in same 
 common employment apart from statutes, where no questions as to vice principal - 
 ship arises; (7 L. R. A. 500) on who are fellow servants. 
 What risks assumed by employee. 
 
 Cited in Hillis v. Spokane & I. E. R. Co. 60 Wash. 10, 110 Pac. 624, holding 
 that lineman on electric railway is not guilty of contributory negligence in 
 obeying order of foreman to push tower car across bridge, when work train was 
 sighted at a distance as he had right to rely upon protection by flagman. 
 
 Cited in footnotes to Jacksonville, T. & K. W. R. Co. v. Galvin, 16 L. R. A. 337, 
 which holds risk from projecting articles assumed by brakeman ; Williamson v. 
 Newport News & M. Valley R. Co. 12 L. R. A. 297, which holds brakeman as- 
 sumes risk of bridge known to be too low ; McKee v. Chicago, R. I. & P. R. Co. 
 13 L. R. A. 817, which holds risk from wing fences at cattle-guards assumed by 
 brakeman; Mensch v. Pennsylvania R. Co. 17 L. R. A. 450, which holds danger 
 from projection of bolt from end of car assumed by brakeman. 
 
 Cited in note (12 L. R. A. 342) on assumption by employee of ordinary risks 
 of employment. 
 Liability for Injury to servant. 
 
 Cited in footnote to St. Louis, A. & T. R. Co. v. Triplett, 11 L. R. A. 773, which 
 holds master's duty to protect repair track not fulfilled by adopting rule, suf- 
 ficient if faithfully observed by employees; Wallin v. Eastern R. Co. 54 L. R. A. 
 481, which holds failure to provide suitable rules for operation of hand cars used 
 by bridge gangs negligence. 
 
 Cited in note (8 L. R. A. 464) on master's liability for injuries caused through 
 negligence of servant. 
 Measure of damages. 
 
 Cited in Hutchins v. St. Paul, M. & M. R. Co. 44 Minn. 10, 46 N. W. 79, holding 
 damages recoverable for negligent killing of deceased measured by pecuniary loss; 
 Lazelle v. Newfane, 70 Vt. 447, 41 Atl. 511, holding son not entitled to even nom- 
 inal damages for death of aged and almost helpless mother by defective highway, 
 unless pecuniary loss shown ; Jacksonville Electric Co. v. Bowden, 54 Fla. 471, 
 15 L.R.A. (N.S.) 456, 45 So. 755, holding jury may consider as to amount of 
 recovery, evidence as to age, probable duration of life, habits of industry, means, 
 business, earnings, health and skill of deceased and his reasonable future ex- 
 pectations; Missouri, K. & T. R. Co. v. McLaughlin, 73 Kan. 254, 84 Pac. 989, 
 holding more than nominal damages for negligent death of uncle GO years old 
 
1001 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 82 
 
 having practically no property excessive where the claimants were from 21 to 
 40 years old in good circumstances and not dependent on such uncle. 
 
 Cited in footnote to San Antonio & A. P. R. Co. v. Long, 24 L. R. A. 637, which 
 denies right to recover for death by one receiving from estate more than pro- 
 spective benefit had death not ensued. 
 
 Cited in notes (17 L.R.A. 72, 76) on measure of damages for death caused by 
 negligence; (11 L.R.A. (N.S.) 624) on damages recoverable by collateral kindred 
 for negligent killing of relative. 
 
 Distinguished in Lake Erie & W. R. Co. v. Mugg, 132 Ind. 175, 3] N. E. 564, 
 holding damages for loss of support and maintenance suffered by widow and 
 minor children recoverable. 
 Allegations as to personal representatives. 
 
 Cited in note (70 Am. St. Rep. 679) on necessity of dependency and expecta- 
 tion of benefits to maintenance of action for death of human being. 
 
 Criticized and distinguished in Serensen v. Northern P. R. Co. 45 Fed. 409, 
 holding complaint should allege as to existence of widow and next of kin in 
 action for negligent killing of intestate. 
 
 6 L. R. A. 79, STATE v. BURT, 41 La. Ann. 787, 6 So. 631. 
 Xewly discovered evidence. 
 
 Cited in State v. Crenshaw, 45 La. Ann. 499, 12 So. 628; State v. Garig, 43 
 La. Ann. 370, 8 So. 934; State v. Chambers, 43 La. Ann. 1109, 10 So. 247; State 
 v. Maxey, 107 La. 802, 32 So. 206, denying right to new trial for newly dis- 
 covered evidence contradicting or impeaching witnesses at trial. 
 
 Cited in notes (56 L.R.A. 444) on dying declarations as evidence; (11 Eng. 
 Rul. Cas. 308) on admissibility of dying declarations. 
 
 Distinguished in State v. Washington, 108 La. Ann. 229, 32 So. 396, granting 
 new trial where affidavit of witness seeking to impeach his own testimony is 
 signed also by his attorney. 
 
 6 L. R. A. 80, WREN v. PARKER, 57 Conn. 529, 14 Am. St. Rep. 127, 18 Atl. 790. 
 Payment of taxes as evidence of ownership. 
 
 Cited in Ward v. Edge, 100 Ky. 770, 39 S. W. 440, holding occupant's payment 
 of taxes competent as tending to show ownership; Merwin v. Morris, 71 Conn. 
 575, 42 Atl. 855, holding rejection of evidence of payments of taxes on small 
 portion of land in dispute not error where party had benefit of similar evidence, 
 and in view of charge to jury; De Foresta v. Gast, 20 Colo. 311, 38 Pac. 244, 
 holding one holding under tax deed, and paying all taxes for twice statutory 
 period, entitled to deed's protection as in good faith. 
 
 6 L. R, A. 82, FISHELL v. MORRIS, 57 Conn. 547, 18 Atl. 717. 
 Liens. 
 
 Cited in Turner v. Horton, 18 Wyo. 294, 106 Pac. 688, holding that meaning 
 of lien on personal property for labor bestowed upon is that lienor may retain 
 possession until charges are paid. 
 
 Cited in footnotes to Sullivan v. Clifton, 20 L. R. A. 719, which holds livery- 
 stable keeper's lien subject to prior recorded mortgage; Hauch v. Ripley, 11 L. R. 
 A. 61, which holds agister's lien inferior to chattel mortgage. 
 
 Cited in note (83 Am. St. Rep. 452, 453) on lien of vendor of personalty. 
 
 Distinguished in Heckman v. Tammen, 84 111. App. J>51, holding that statute 
 giving laborers and servants preferred claim upon assets gives them priority 
 over prior chattel mortgages. 
 
C L.R.A. 82] L. R. A. CASES AS AUTHORITIES. 1002 
 
 Devestment of lien. 
 
 Cited in Goldsmith Bros. v. Gensenleiter, 28 Pa. Co. Ct. 400, 34 Pittsb. L. J. 
 N. S. 43, 14 Pa. Dist. R. 516, holding stableman's lien for keeping horse devested 
 by sale to innocent purchaser. 
 
 Cited in note (16 Eng. Rul. Cas. 145) on loss of lien by parting with pos- 
 session. 
 
 6 L. R. A. 84, STATE ex rel. CLOVER v. LADIES OF SACRED HEART, 99 
 
 Mo. 533, 12 S. W. 293. 
 Limitation of term of corporation. 
 
 Cited in State ex rel. Pritchett School Inst. v. Lesueur, 141 Mo. 33, 41 S. 
 W. 904, holding that corporation whose articles contemplate perpetual existence 
 not limited under statute giving succession for period limited in charter, or else 
 for twenty years; State ex rel. Morris v. Westminster College, 175 Mo. 59, 74 
 S. W. 990, holding statute limiting to twenty years existence of corporation 
 not otherwise limited inapplicable to denominational college; State ex rel. Hines 
 v. Cape Girardeau, 207 Mo. 101, 105 S. W. 761, holding limit of existence of 
 turnpike corporation created by special act and not limited as to duration in 
 its charter has power of succession by its corporate name for twenty years 
 under statute; State ex rel. Major v. German Mut. L. Ins. Co. 224 Mo. 92. 123 
 S. W. 19, holding under a special act of incorporation the term "perpetual suc- 
 cession" used in connection with charter applies only to such succession during 
 existence of corporation which under statute is twenty years in absence of 
 specification is contrary in charter. 
 
 Cited in footnote to Bank of Commerce v. Wiltsie, 47 L. R. A. 489, which 
 holds invalid, extension of special charter of corporation. 
 
 Cited in note (33 L. R. A. 578) as to period of existence of private corpo- 
 rations. 
 Charitable use. 
 
 Cited in State v. Laramie County, 8 Wyo. 134, 55 Pac. 451, holding state pen- 
 itentiary a "charitable institution" \vithin limitation of taxation clause in Con- 
 stitution. 
 
 Cited in notes (12 L. R. A. 415) as to charitable uses and trusts; (13 L. R. 
 A. 218) as to power of municipal corporation to take and administer property 
 in trust for charitable uses. 
 
 6 L. R. A. 87, ST. PAUL F. & M. INS. CO. v. COLEMAN, 6 Dak. 458, 43 X. W. 
 693. 
 
 Effect on premium note of provision releasing: insurer upon nonpay- 
 ment. 
 
 Cited in Equitable Ins. Co. v. Harvey, 98 Tenn. 642, 40 S. W. 1092, holding 
 that suspension of liability on insurance policy while premium note over due, 
 no defense to liability on note; Phenix Ins. Co. v. Rollins, 44 Neb. 750, 63 N. 
 W. 46, holding insured liable for full amount of premium note for five years' 
 insurance, notwithstanding provision for suspension of policy during default. 
 Reduction of premium. 
 
 Cited in Joshua Hendy Mach. Works v. American Steam Boiler Ins. Co. 86 Cal. 
 252, 21 Am. St. Rep. 33, 24 Pac. 1018, holding statutory provision relating ex- 
 clusively to return of premium does not authorize or apply to cancelation of 
 policy at mere request of insured. 
 
 6 L. R. A. 90, GARDNER v. STROEVER, 81 Cal. 148. 22 Pac. 483. 
 Mandatory injunction. 
 
 Cited in Hagen v. Beth, 118 Cal. 331, 50 Pac. 425, holding mandatory injunc- 
 
3003 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 92 
 
 tion for removal of trade signs pending action to enjoin use of trade name, er- 
 roneous; Flood v. E. L. Goldstein Co. 158 Cal. 250, 110 Pac. 916, holding that 
 injunction will not be granted to restore to tenant room in house where house 
 is destroyed. 
 
 Cited in notes (20 L.R.A. 162) as to power of equity to grant mandatory 
 injunctions; (10 Eng. Rul. Cas. 314) on mandatory injunction for protection 
 of easement. 
 
 Distinguished in Gardner v. Stroever, 89 Cal. 30, 26 Pac. 618, granting man- 
 datory injunction against maintaining building obstructing highway, as part 
 of relief. 
 
 I'ussi lii I i t > of further injury. 
 
 Cited in Hatch v. Raney, 9 Cal. App. 717, 100 Pac. 886, holding temporary 
 writ of injunction not issuable where act to be enjoined has on the face 
 of the complaint been already committed; Mendelson v. McCabe, 144 Cal. 233, 
 103 Am. St. Rep. 78, 77 Pac. 915, holding cross-complaint alleging refusal to 
 desist from and threat to continue injurious acts sufficient to show intent to con- 
 tinue especially where such allegations are admitted to be true. 
 
 6 L. R. A. 92, FIRST NAT. BANK v. HOLLINGSWORTH, 78 Iowa, 575, 43 
 
 N. W. 536. 
 Homestead, what constitutes. 
 
 Cited in Maguire v. Hanson, 105 Iowa, 218, 74 N. W. 776, holding that mere 
 intent to erect upon land a house, to be occupied as home at some indefinite 
 time, not sufficient to create "homestead;" Gill v. Gill, 69 Ark. 598, 86 Am. St. 
 Rep. 213, 55 L. R. A. 192, footnote p. 191, 65 S. W. 112, holding house subject 
 to homestead exemption where owner repaired and cleaned and was moving 
 household goods into it at death. 
 
 Cited in footnotes to Lyons v. Andry, 55 L.R.A. 724, which holds homestead 
 exemption not lost by nonresidence after house blown down; Ware v. Hall, 67 
 L.R.A. 313, which holds mere raising of a few vegetables on a vacant lot not 
 such occupancy as entitles insolvent to hold the land indefinitely as a homestead. 
 
 Cited in note (21 Am. St. Rep. 30) on rights in homestead. 
 
 Distinguished in Mann v. Corrington, 93 Iowa, 112, 57 Am. St. Rep. 256, 61 N. 
 W. 409, holding homestead nature attaches to land secured for home from pro- 
 ceeds of homestead. 
 What constitutes security. 
 
 Cited in National City Bank v. Torrent, 130 Mich. 263, 89 N. W. 938, holding 
 service of garnishee process, "security" within meaning of contract providing 
 for assignment of unsecured claim. 
 Application of payments. 
 
 Cited in Pidcock v. Voorhies, 84 Iowa, 710, 49 N. W. 1038, holding that pay- 
 ment on one open account are to be applied to payment of debit items in or- 
 der of their dates; Schoonover v. Osborne Bros. 108 Iowa, 462, 79 N. W. 263, 
 holding payments by partnership's successor applicable in order upon items of 
 open running account continued unchanged with partner who purchased co- 
 partner's interest; Briggs v. Iowa Sav. Loan Asso. 114 Iowa, 234, 86 N. W. 320, 
 holding that where, to secure loan, husband and wife mortgage homestead, and 
 former pledges his stock, and also subsequently pledges such stock for person- 
 al loan, payments presumed first applicable to homestead debt; YVingate v. Peo- 
 ples Bldg. '& L. Sav. Asso. 15 Tex. Civ. App. 419, 39 S. W. 999, holding that 
 money paid without application being specified, upon debt secured by encum- 
 brance part void and part valid, first applicable upon latter; Shaffer Bros. v. 
 Chernyk, 130 Iowa, 687. 107 X. W. 801, holding court should apply payment of 
 a deM; in property in sucli a - ay as to protect homestead of debtor. 
 
L.R.A. 92] L. R. A. CASES AS AUTHORITIES. 1004 
 
 Cited in notes (17 Am. St. Rep. 518; 96 Am. St. Rep. 47, 54, 56, 63; 3 Eng. 
 Rul. Cas. 355) on applications of payments. 
 
 6 L. R. A. 95, ROBINSON v. CONTINENTAL INS. CO. 76 Mich. 641, 43 X. 
 
 W. 647. 
 Stipulation against liability. 
 
 Cited in Dale v. Continental Ins. Co. 95 Tenn. 44, 31 S. W. 266, holding re- 
 covery on policy defeated for loss during default on premium, where both pol- 
 icy and note provide for lapse of policy upon such default; Hale v. Michigan 
 Farmers' Mut. F. Ins. Co. 148 Mich. 454, 111 N. W. 1068, holding right to 
 recovery on insurance policy defeated by default in payment of notes for pre- 
 mium where stipulating that policy remains null and void so long as note re- 
 mained unpaid after maturity; Kavanaugh v. Security Trust & L. Ins. Co. 117 
 Tenn. 56, 7 L.R.A.(N.S.) 263, 96 S. W. 499, 10 A. & E. Ann. Cas. 680, holding 
 that where policy provides for reinstatement after default on payment and 
 submission of health certificate and note provides for nonliability on default 
 after maturity and for so long as note remains unpaid a tender of payment 
 after maturity before death is a reinstatement, where default was caused by 
 failure of notice of maturity of note. 
 
 Cited in footnote to Stewart v. Union Mut. L. Ins. Co. 42 L. R. A. 147, 
 which holds provision against policy taking effect till first premium paid in- 
 effectual, where premium note given, though unpaid. 
 "Waiver. 
 
 Cited in footnote to Kocher v. Supreme Council C. B. L. 52 L. R. A. 861, 
 which denies power of officers of benefit society to waive judgment of assess- 
 ments for death benefits. 
 
 6 L. R. A. 97, DETROIT HOME & DAY SCHOOL v. DETROIT, 76 Mich. 521, 
 
 43 N. W. 593. 
 Exemption from taxation. 
 
 Approved in St. John's Military Academy v. Edwards, 143 Wis. 556, 139 Am. 
 St. Rep. 1123, 128 N. W. 113, holding that school or academy is scientific or 
 literary association within meaning of subd. 3, sec. 1038, stat. (1898) and its 
 property not taxable. 
 
 Cited in Academy of Sacred Heart v. Irey, 51 Neb. 757, 71 N. W. 752, holding 
 exemption of educational institution from taxation extends to its vegetable 
 garden used to supply its tables directly, or in a few instances, by exchange; 
 Pfeiffer v. Board of Education, 118 Mich. 573, 42 L. R. A. 540, 77 N. W. 250 
 (dissenting opinion), majority holding supplemental readings from Bible in 
 public schools, from which pupils are excused upon request, not illegal as taxa- 
 tion for support of teacher of religion. 
 
 Cited in footnotes to Harvard College v. Cambridge, 48 L. R. A. 547, which 
 holds exempt from taxation houses occupied by college presidents and profes- 
 sors, and dormitories and dining halls for students; New England Theosophical 
 Corp. v. Boston, 42 L. R. A. 281, which denies exemption from taxation of theo- 
 sophical corporation; Ramsey County v. Macalaster College, 18 L. R. A. 278, 
 which holds professors' residences' on college grounds exempt, but not unused 
 land in college tract; Brown University v. Granger, 36 L. R. A. 847, which 
 holds real estate constituting part of endowment of Brown University within 
 exemption of "college estate;" German Gymnastic As*o. v. Louisville, 65 L.R.A. 
 120, which holds institution for teaching physical culture exempt from taxation. 
 
 Cited in note (21 L.R.A. (N.S.) 166) on property used for private school as 
 exempt from taxation. 
 
1005 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 102 
 
 Distinguished, in Parsons Business College v. Kalamazoo, 166 Mich. 308, 33 
 L.R.A.(X.S.) 922, 131 X. W. 553. holding that under statute exempting educa- 
 tional institutions from taxes business college conducted for profit of stock- 
 holders is not exempt. 
 
 6 L. R. A. 102, EATON v. WALKER, 76 Mich. 579, 43 N. W. 638. 
 Scope of title of statute. 
 
 Cited in Jenking v. Osmun, 79 Mich. 306, 44 N. W. 787, holding subsequent 
 act revising laws for incorporation of manufacturing and mercantile associations 
 not void, as embracing more than one subject; Soukup v. Van Dyke, 109 Mich- 
 680, 67 X. W. 911, holding act entitled as relative to municipal justices courts, 
 to reduce their number and fix compensation and provide clerk and offices,. 
 embraces provision for exclusive jurisdiction in justice's cases between resi- 
 dents; Teller County v. Trowbridge, 42 Colo. 457, 95 Pac. 554, holding a statute 
 entitled "Fees" limiting salaries and compensation of certain officials, is uncon- 
 stitutional, the contents not being germane to the title. 
 
 Cited in notes (19 Am. St. Rep. 873) on what must be expressed in title of 
 statute ; ( 64 Am. St. Rep. 76 ) on sufficiency of title of statute. 
 
 Distinguished in Wardle v. Cummings, 86 Mich. 401, 49 X. W. 212, holding act,, 
 title of which provides for incorporation of mutual fire insurance companies,, 
 embraces organization of mutual companies to insure in cities and villages only. 
 Corporations or officers lie facto. 
 
 Cited in Lincoln Park Chapter Xo. 177, R. A. M. v. Swatek, 105 111. App. 609V 
 holding that a corporation regularly organized in conformity with statute, for 
 lawful purpose, is a corporation de facto; Georgia Southern & F. R. Co. v. Mer- 
 cantile Trust & D. Co. 94 Ga. 315, 32 L. R. A. 211, 47 Am. St. Rep. 153, 21 S. E. 
 701, holding corporations under special charters enacted after general statute, 
 at least corporations de facto; American Loan & T. Co. v. Minnesota & N. W. 
 R. Co. 157 111. 652, 42 X. E. 153, holding that, in absence of authorizing stat- 
 ute, company formed by consolidation of domestic with foreign corporations 
 not de facto corporation; Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 
 253, 91 X. W. 1081, holding acceptance of franchise which city was not au- 
 thorized to grant does not create a color of right not questionable collaterally; 
 Bergeron v. Hobbs, 96 Wis. 650, 65 Am. St. Rep. 85, 71 N. W. 1056 (dissenting 
 opinion), majority holding that where filing of certificate is condition prece- 
 dent to incorporation, organizers are individually liable for society's debts upon 
 failure therein; Auditor General v. Menominee County, 89 Mich. 627, 51 N. W. 
 483 (dissenting opinion) majority holding acquiescence by state senate in acts, 
 as one of its members, of one who had been illegally seated, makes him a de 
 facto officer; Whipple v. Tuxworth, 81 Ark. 401, 99 S. W. 86, holding a cor- 
 poration to be de jure where the only defect in its organization under the 
 statutes was that the petition for its establishment was signed by ten residents 
 of the city instead of ten residents within its own territorial limits; Clark v. 
 American Cannel Coal Co. 165 Ind. 216, 112 Am. St. Rep. 217, 73 N. E. 1083, 
 holding a corporation after expiration of period fixed for its existence is not a 
 corporation de facto and its corporate existence may be questioned collaterally; 
 Atty. Gen. ex rel. Linnell v. Gay, 162 Mich. 615, 127 N. W. 814, holding that 
 invalid attempt to extend life of corporation in 1882 was not validated by con- 
 stitutional amendment of 1889; Xewcomb-Endicott Co. v. Fee, 167 Mich. 582, 
 133 X. W. 540, holding that existence of charter or enabling act, and user by 
 party to suit of rights claimed to be conferred by charter or law are necessary 
 to establish corporation de facto. 
 
 Cited in notes (9 L.R.A. 33) as to corporations; (33 Am. St. Rep. 182) on. 
 
B L.R.A. 102] L. R. A. CASES AS AUTHORITIES. 1006 
 
 defective formation of corporations; (118 Am. St. Rep. 255) on what constitutes 
 
 a corporation de facto. 
 
 Estoppel to question Incorporation. 
 
 Cited in Davis v. Stevens, 104 Fed. 237, holding validity of corporate exist- 
 ence subject to collateral attack where there is no law under which corporation 
 might exist; Kalamazoo v. Kalamazoo Heat, Light & P. Co. 124 Mich. 83, 82 
 N. W. 811, holding that city granting franchise, under which work has been 
 done and expenditures made, cannot question corporate existence by reason of ir- 
 regularities in execution and filing of papers; Lehman v. Knapp, 48 La. Ann. 
 1155, 20 So. 674, holding that seller of goods to corporation not authorized to 
 deal as merchant is not estopped from enforcing stockholders' liability as part- 
 ners; Imperial Bldg. Co. v. Chicago Open Bd. of Trade, 238 111. 108, 87 N. E. 
 167, holding that to constitute corporation de facto there must be a valid law 
 under which incorporation could be had and in the absence of such a law an 
 attempted corporation may be questioned as to existence collaterally; Love v. 
 Ramsey, 139 Mich. 50, 102 N. W. 279, holding a person dealing with a corpora- 
 tion de facto knowing it to be such cannot hold its members or its manager 
 individually liable. 
 Partnership liability of stockholders. 
 
 Cited in notes (17 L.R.A. 550) as to partnership liability of stockholders in 
 case of defective or illegal incorporation; (18 L.R.A. (N.S.) 1094) on effect of 
 agreement to share profits to create partnership; (17 Am. St. Rep. 162) on 
 liability of promoters of corporations as partners. 
 
 Distinguished in Mandeville v. Courtwright, 126 Fed. 1011, holding stock- 
 holders of corporation conducting unauthorized business not liable as part- 
 ners for torts of its agents. 
 
 6 L. R. A. 107, COLLIER v. COWGER, 52 Ark. 322, 12 S. W. 702. 
 Constructive eviction. 
 
 Cited in Scoggin v. Hudgins, 78 Ark. 535, 115 Am. St. Rep. 60, 94 S. W. 684, 
 holding action for breach of warranty of title and against encumbrances accrues 
 when grantee is forced by judgment to pay encumbrance actual disseisin not 
 being essential; Carpenter v. Carpenter, 88 Ark. 171, 113 S. W. 1032, holding 
 a purchaser of land under a warranty deed being divested of title under prior 
 claim may recover for breach of warranty on a showing of due notice to war- 
 rantor to defend and a bona fide defense by himself. 
 
 Cited in footnotes to. Grove v. Youell, 33 L. R. A. 297, which holds life ten- 
 ant evicted from room when denied access by passage through house; Oakford 
 v. Nixon, 34 L. R. A. 575, which holds destruction of wall for advertising pur- 
 poses not eviction. 
 
 Cited in notes (122 Am. St. Rep. 859) on breach of covenant of warranty by 
 eviction; (13 L.R.A. (N.S.) 734) on necessity of request to defend in order to 
 bind covenantor by decree against grantee. 
 Damages for breach of warranty. 
 
 Cited in Dillahunty v. Little Rock & Ft. S. R. Co. 59 Ark. 636, 27 S. W. 1002, 
 holding covenantee entitled, under warranty, to necessary expenditure to ex- 
 tinguish adverse title, but not exceeding amount paid covenantor, with inter- 
 est; Smith v. Corege, 53 Ark. 299, 14 S. W. 93, holding assignor of note war- 
 ranting collection liable for consideration and costs of assignee's unsuccessful 
 suit thereon; West Coast Mfg. & Invest. Co. v. West Coast Improv. Co. 31 
 Wash. 614, 72 Pac. 455, holding measure of damages for breach of warranty 
 by failure of title to part of land is proportional part of consideration, with 
 interest. 
 
1007 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 111 
 
 Cited in note (24 Am. St. Rep. 267, 268) on damages recoverable for breach 
 of warranty of title. 
 
 Distinguished in Madden v. Caldwell Land Co. 16 Idaho, 64, 21 L.R.A.(N.S.) 
 332, 100 Pac. 358, holding that where vendor of land in bad faith causes a 
 breach of covenant to vendee of quiet enjoyment the measure of damages is 
 adequate compensation for actual injury sustained or "damages for loss of 
 bargain." 
 
 <3 L. R. A. 108, Re DALPAY, 41 Minn. 532, 16 Am. St. Rep. 729, 43 N. W. 564. 
 Assignment for creditors; property in another state. 
 
 ^ited in Re Harrison, 46 Minn. 335, 48 N. W. 1132, holding illegal prefer- 
 ence or concealment with respect to property in another state defeats insol- 
 vent's right to discharge; Re Kahn, 55 Minn. 512, 57 N. W. 154, holding agree- 
 ment in state to give preference by shipping goods to creditor in another state 
 illegal. 
 
 Cited in note (58 Am. St. Rep. 92) on fraudulent assignments for creditors. 
 Insolvency defined. 
 
 Cited in Stone v. Dodge, 96 Mich. 524, 21 L. R. A. 287, 56 N. W. 75, defining 
 insolvency as inability to meet maturing obligations, in ordinary course of busi- 
 ness. 
 
 Cited in note ( 10 L. R. A. 707 ) on what constitutes insolvency. 
 
 6 L. R. A. Ill, KETTLE RIVER R. CO. v. EASTERN R. CO. 41 Minn. 461, 
 
 43 N. W. 469. 
 Public nse justifying; taking by eminent domain. 
 
 Cited in Chicago, B. & N. R. Co. v. Porter, 43 Minn. 530, 46 N. W. 75, holding 
 switch which p \iblic have right to use, public use justifying taking land by con- 
 demnation; St. Louis, I. M. & S. R. Co. v. Petty, 57 Ark. 368, 20 L. R. A. 440, 
 21 S. W. 884, holding side track for legitimate railroad purposes, though bene- 
 fiting particular shipper, public use; Butte, A. & P. R. Co. v. Montana Union 
 R. Co. 16 Mont. 523, 31 L. R. A. 304, 50 Am. St. Rep. 508, 41 Pac. 232, holding 
 connection of mines with market public use justifying condemnation of lands for 
 railroad: Ulmer v. Lime Rock R. Co. 98 Me. 588, 66 L.R.A. 387, 57 Atl. 1001, 
 holding railroad may condemn land for branch track to single quarry; Re Split 
 Rock Cable Co. 58 Hun, 358, 12 N. Y. Supp. 116, holding tramway intended for 
 use of private company, not accessible to public except by permission, not public 
 use; Board of Health v. Van Hoesen, 87 Mich. 538, 14 L.R.A. 116, 49 N. W. 
 894, holding that cemetery corporation, with discretionary power to sell lots to 
 individuals, cannot condemn lands; Portneuf Irrigating Co. v. Budge, 16 Idaho. 
 132, 100 Pac. 1046,'l8 A. & E. Ann. Cas. 674, holding that irrigating canal is 
 public use; State v. Chicago, M. & St. P. R. Co. 115 Minn. 54, 131 N. W. 859; 
 Bedford Quarries Co. v. Chicago, I. & L. R. Co. 175 Ind. 306, 35 L.R.A.(N.S.) 
 643, 94 N. E. 326, holding that right of way for side tracks to stone quarry 
 is for public use where it will be open impartially to use of all persons desiring 
 to use it; Dubuque & S. C. R. Co. v. Ft. Dodge, D. M. & S. R. Co. 146 Iowa, 
 668, 125 N. W. 672, holding that railroad that will furnish public additional 
 conveniences for transportation of freight, although chiefly used by manufactur- 
 ing company, is public use; Stockdale v. Rio Grande W. R. Co. 28 Utah, 209, 
 77 Pac. 849, holding railroad switch track to be a public utility though from 
 its location it is available only to a limited number of users. 
 
 Cited in footnotes to Bridal Veil Lumbering Co. v. Johnson, 34 L. R. A. 368, 
 which sustains right of railroad built through timbered region for few miles 
 to sawmill, to exercise of eminent domain; Re Chicago & N. W. R. Co. 56 L. 
 
6 L.R.A. 111] L. R. A. CASES AS AUTHORITIES. 1008 
 
 R. A. 240, which sustains right to condemn land for spur track to reach large 
 ice industry; Kansas & T. Coal R. Co. v. Northwestern Coal & Min. Co. 51 
 L. R. A. 936, which holds railroad company entitled to exercise of eminent do- 
 main, though railroad short and built chiefly to transport coal of particular 
 company; Healy Lumber Co. v. Morris, 63 L.R.A. 821, which denies right to 
 condemn land for transportation to market of logs of private owner: Ulmer 
 v. Lime Rock R. Co. 66 L.R.A. 387, which sustains right to acquire by eminent 
 domain right of way for branch track to sustain quarry when intended for use 
 of public though primary purpose is accommodation of owner of quarry. 
 
 Cited in notes in (22 Am. St. Rep. 49) on taking of private property for pub- 
 lic use; (102 Am. St. Rep. 819) on uses for which power of eminent domain can- 
 not be exercised. 
 Covenants relating: to land, enforceable against grantees with notice. 
 
 Cited in Jellison v. Halloran, 44 Minn. 203, 46 N. W. 332, holding one claiming 
 ownership chargeable with notice of recorded mortgage and rights accruing 
 thereunder; Miller v. Fasler, 42 Minn. 367, 44 N. W. 256, holding second mort- 
 gagee bound by owner's assumption of first mortgage by deed on record; Lyman 
 v. Suburban R. Co. 190 111. 329, 52 L. R. A. 649, 60 N. E. 515, holding that 
 covenant to maintain depot at certain place in consideration of right of way 
 runs with land; Clement v. Willett, 105 Minn. 270, 17 L.R.A. (N.S.) 1099, 127 
 Am. St. Rep. 562, 117 N. W. 491, 15 A. & E. Ann. Gas. 1053, holding that pro- 
 vision in deed by which grantee assumes the payment of an existing mortgage i& 
 not a covenant running with the land; Sjobbom v. Mark, 103 Minn. 201, 15- 
 L.R.A.(N.S.) 1135, 114 N. W. 746, 14 A. & E. Ann. Gas. 125, on distinction be- 
 tween a covenant running with the land and a personal contract; Farmers' & 
 M. Irrig. Co. v. Hill, 90 Neb. 855, 39 L.R.A.(N.S.) 802, 134 N. W. 929; Evans- 
 ville & S. I. Traction Co. v. Evansville Belt R. Co. 44 Ind. App. 163, 87 N. E. 
 21, holding that parties to contract and those in privity with them either in 
 estate or contract are only persons bound thereby; Chicago & N. W. R. Co. v. 
 Fox River Electric R. & Power Co. 119 Wis. 189, 96 N. W. 541, holding that 
 agreement between street railway and railroad as to crossing of street railway 
 over lands and track of the railroad does not attach to fee of the land. 
 
 Cited in footnotes to Doty v. Chattanooga Union R. Co. 48 L. R. A. 160, which 
 holds covenant for running certain trains binding on subsequent purchaser of 
 railroad; Mott v. Oppenheimer, 17 L. R. A. 409, which construes as running 
 with the land an agreement for party wall, expressly declared to run with land. 
 
 Cited in notes (82 Am. St. Rep. 666, 675, 683), on what covenants run with 
 the land; (126 Am. St. Rep. 373) on liability of grantee on covenants and con- 
 ditions in deed; (136 Am. St. Rep. 690) on creation and conveyance of easementa 
 appurtenant. 
 Contract by pnblic service corporation snppressive of competition. 
 
 Cited in Chicago, I. & L. R. Co. v. Southern I. R. Co. 38 Ind. App. 239, 70> 
 N. E. 843, holding that railroad cannot legally contract not to establish switches 
 and sidetracks at a certain place so as to prevent competition; Calor Oil & Gas 
 Co. v. Franzell, 128 Ky. 725, 36 L.R.A. (N.S.) 456, 109 S. W. 328, holding that 
 contract by producer of oil for exclusive right of way across farm between oil 
 land and market is void. 
 
 6 L. R. A. 119, STATE v. VANDERSLUIS, 42 Minn. 129, 43 N. W. 789. 
 Equal protection and privileges. 
 
 Cited in State ex rel. Kellogg v. Currens, 111 Wis. 437, 56 L. R. A. 256, 87 
 N. W. 561, sustaining act requiring examination of graduate of foreign med- 
 ical college before licensing; State v. Bair, 112 Iowa, 468, 51 L. R. A. 778 r 
 
1009 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 119 
 
 84 N. W. 532, sustaining act limiting practice of medicine to those having diplo- 
 ma, passing examination, or who have practised five years; State v. Knowles, 
 90 Md. 656, 49 L. R. A. 698, 45 Atl. 877, sustaining exemption of graduates 
 of regular college of dentistry from examination for license; State v. Creditor, 
 44 Kan. 567, 21 Am. St. Rep. 306, 24 Pac. 346, sustaining exemption of den- 
 tists practising in state from requirement of license; State v. Beck, 21 R. I. 
 295, 45 L. R. A. 271, 43 Atl. 366, holding practitioners of medicine exempted 
 from restrictions as to practice of dentistry; Ex parte Whitley, 144 Cal. 176, 77 
 Pac. 879, 1 A. & E. Ann. Cas. 13, holding act requiring one practicing dentistry 
 to procure a license therefor, constitutional; State ex rel. Grant v. Rosenkrans, 
 30 R. I. 395, 75 Atl. 491, 19 Ann. Cas. 824, holding that statutes providing 
 for examinations in practice of dentistry and regulation of practice are consti- 
 tutional, although certain persons are not required to take examination. 
 
 Cited in footnotes to Noel v. People, 52 L. R. A. 287, which holds void, act 
 giving exclusive privilege to sell patent medicines to registered pharmacists: 
 State Y. Bair, 51 L. R. A. 776, which sustains statute requiring examination 
 before state board of examiners, five years' practice, or certificate from medical 
 school, before practising medicine. 
 
 Cited in note 14 L.R.A. 582, on constitutional equality as to privileges, 
 immunities, and protection. 
 Police poirer. 
 
 Cited in Ex parte Lucas, 160 Mo. 232, 61 S. W. 218, sustaining act regulat- 
 ing trade of barbers so as to prevent spread of contagious diseases; State ex 
 rel. Burroughs v. Webster, 150 Ind. 617, 41 L. R. A. 217, 50 N. E. 750, sustain- 
 ing act requiring all physicians to obtain new license; State v. Heinemann, 
 80 Wis. 257, 27 Am. St. Rep. 34, 49 N. W. 818, upholding act requiring phar- 
 macists to register and pay registration fee; Re Inman, 8 Idaho, 408. 69 Pac. 120, 
 holding an act regulating the practice of medicine was a valid exercise of the 
 police power; Kentucky Bd. of Pharmacy v. Cassidy, 115 Ky. 703, 74 S. W. 730. 
 holding a law regulating the practice of pharmacy and organizing a state board 
 of examiners, constitutional; State v. Hovorka, 100 Minn. 250, 8 L.R.A. (N.S.) 
 1275, 110 N. W. 870, 10 A. & E. Ann. Cas. 398, holding the act regulating the 
 practice of pharmacy constitutional, though providing for a license fee annually; 
 State ex rel. Grant v. Rosenkrans, 30 R. I. 392, 75 Atl. 491, 19 Ann. Cas. 824. 
 sustaining act for examination for practice of dentistry. 
 Reasonableness of regulations. 
 
 Cited in Com. v. Gibson, 21 Pa. Co. Ct. 238, 7 Pa. Dist. R. 389, holding regu- 
 lation excepting practising dentists from act regulating dentistry reasonable; 
 Railroad Commission v. Houston & T. C. R. Co. 16 Tex. Civ. App. 135, 40 S. W. 
 526, sustaining rules of railroad commissioners regulating compression of cot- 
 ton as reasonable; State ex rel. Milwaukee Medical College v. Chittenden, 127 
 Wis. 521, 107 N". W. 500, holding that it is for the court to say whether a reg- 
 ulation is reasonable, but it is for the legislature to say if it is expedient; Goth- 
 ard v. People, 32 Colo. 14, 74 Pac. 890; State ex rel. Crandall v. Mclntosh, 205 
 Mo. 615, 103 S. W. 3078, holding law requiring applicants for examination for 
 a license to practice dentistry to present a diploma from some school, reason- 
 able in its regulations. 
 Rigrnt of ili> siri:i ii to practice dentistry. 
 
 Cited in Kettles v. People, 221 111. 233, 77 N. E. 472, upholding the act 
 regulating the practice of dentistry though it provided the physicians might prac- 
 tice it; State v. Taylor, 106 Minn. 219, 19 L.R.A. (N.S.) 878, 118 N. W. 1012, 
 holding that a person licensed to practice as physician and surgeon, could not 
 practice as a dentist unless licensed as such. 
 L.R.A. Au. Vol. I. 64. 
 
6 L.R.A. 121] L. R. A. CASES AS AUTHORITIES. 1010 
 
 6 L. R. A. 121, McKINNON v. VOLLMAR, 75 Wis. 82, 17 Am. St. Rep. 178, 43 
 
 N. W. 800. 
 Action for money bad and received. 
 
 Cited in Mankin v. Jones, 68 W. Va. 430, 69 S. E. 981, holding that action for 
 money had and received lies for money due as profits, which might be realized 
 by sale of land held in defendant's name, but which he agreed to keep. 
 
 Cited in notes (18 Am. St. Rep. 430) on assumpsit for money paid without 
 consideration. 
 Recovery of purchase price of land. 
 
 Followed in Stelting v. Bank of Sparta, 136 Wis. 371, 117 N. W. 798, holding 
 recovery of purchase price may be had where broker intentionally or otherwise 
 pointed out wrong land to purchaser on which purchase was made though the 
 owners had no knowledge of mistake when price was paid. 
 
 Cited in Graham v. Merchant, 43 Or. 305, 72 Pac. 1088, holding action for 
 money had and received maintainable against vendor abandoning land contract 
 containing forfeiture clause, who accepted payment after defect; Butt v. Smith, 
 121 Wis. 570, 105 Am. St. Rep. 1039, 99 N. W. 328, holding that an over pay- 
 ment based on mistake in contract for deed not embodied in the deed may be 
 recovered in an action for money had and received; Noble v. Libby, 144 Wis. 637, 
 129 N. W. 791, to the point that purchase money may be recovered in action 
 for money had and received by vendee upon rescission of contract for sale of land. 
 Effect of false representations. 
 
 Followed in Kathan v. Comstock, 140 Wis. 432, 28 L.R.A. (N.S.) 210, 122 
 N. W. 1044, holding that where conveyance is obtained on faith of misstatement 
 of facts it is immaterial that they were made in good faith since it is duty of 
 one speaking as of his own knowledge to know whereof he speaks. 
 
 Cited in Hart v. Moulton, 104 Wis. 359, 76 Am. St. Rep. 881, 80 N. W. 599, 
 holding purchaser's false statements as to financial ability ground for rescis- 
 sion, although he intends to pay; Hoock v. Bowman, 42 Neb. 84, 47 Am. St. 
 Rep. 691, 60 N. W. 389, holding purchaser entitled to rescission of contract 
 of sale of lots the location of which was misrepresented; Zunker v. Kuehn, 113 
 Wis. 421, 88 N. W. 605, holding rescission authorized where one party has record 
 title to only part of land pointed out in good faith as his; Montreal Lumber 
 Co. v. Mihills, 80 Wis. 561, 50 N. W. 507, holding action for deceit maintainable 
 for false representation as to quality of lumber sold, though no actual fraudu- 
 lent intent existed; Greiling v. Watermolen, 128 Wis. 447, 107 N. W. 339, 
 holding where sale of lots is procured by false representation as to width of 
 fronting street rescission may be had without showing actual damage; Kell v. 
 Trenchard, 73 C. C. A. 202, 142 Fed. 22, holding that where agent without 
 knowledge of principal, points out wrong boundaries to agent of prospective pur- 
 chaser, who then purchases, the principal though innocent cannot benefit by his 
 agent's wrong. 
 
 Cited in footnotes to Bigham v. Madison, 47 L. R. A. 267. which authorizes 
 rescission for mutual mistake as to location of boundary lines pointed out by 
 vendor; H. W. Williams Transp. Line v. Darius Cole Transp. Co. 56 L. R. A. 
 939, which denies right to rely on false representations as to speed of steam- 
 boat, if express warranty as to speed is inserted in contract ; Boddy v. Henry, 
 53 L. R. A. 769, which denies deceit of land owner in making false representa- 
 tions as to quantity, under belief in their truth. 
 
 Cited in notes (37 L.R.A. 608) on right to rely on representations made to 
 effect contract, as basis for charge of fraud; (38 Am. St. Rep. 845) on rescission 
 by vendee for misrepresentations by vendor; (85 Am. St. Rep. 373) on liability 
 
1011 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 121 
 
 for misrepresentations indirectly made to complaining party; (12 Eng. Rul. Cas. 
 295) on what constitutes fraud and liability therefor. 
 False representations as to ascertainable facts. 
 
 Cited in Bostwick v. Mutual L. Ins. Co. 116 Wis. 418, 67 L.R.A. 746, 92 N. 
 W. 246; on false representations amounting to fraud because of persuasion of 
 other party not to investigate the facts. 
 
 Cited in note in 38 L.R.A. (N.S.) 306, on vendor and purchaser; misrepresen- 
 tation as to location of property. 
 Authority of agent. 
 
 Cited in Gunther v. Ullrich, 82 Wis. 228, 33 Am. St. Rep. 32, 52 N. W. 88, 
 holding owner of land liable for damage resulting from agent's misrepresenta- 
 tions as to its situation to one exchanging goods for same; State ex rel. Seth 
 Thomas Clock Co. v. Cass County, 53 Neb. 770, 74 N. W. 254, denying right 
 of agent negotiating for sale of clock to appoint her husband to act for prin- 
 cipal in receiving payment; Kampman v. Nicewaner, 60 Neb. 211, 82 N. W. 623, 
 raising question as to power to delegate authority from mortgagee to bid amount 
 of mortgage debt at foreclosure sale; Porter v. Beattie, 88 Wis. 32, 59 N. W. 499, 
 sustaining purchaser's right to rely on representations by agent as to quality 
 and location of land, whose falsity is not obviously discoverable; Fritz v. Chicago 
 Grain & Elevator Co. 136 Iowa, 707, 114 N. W. 193, holding that an agent may 
 hire a sub-agent and his acts within scope of authority of agent are binding 
 on the principal; Lee v. Conrad, 140 Iowa, 18, 117 N. W. 1096, holding a power 
 given by one cotenant to another to negotiate a sale of the common property im- 
 plies the authority to pay a commission to a broker who produces a purchaser; 
 Wright v. Isaacks, 43 Tex. Civ. App. 226, 95 S. W. 55, holding the error of sub- 
 agent in a conveyance is the error of the principal where the appointment by 
 agent of such subagent is authorized; John Schroeder Lumber Co. v. Stearns, 122 
 Wis. 508, 100 N. W. 836, holding an inspection of lath by representative of 
 broker employed to inspect and purchase for defendant, precludes the defendant 
 from refusing to take lath on grounds of defective quality; Arnold v. National 
 Bank, ]26 Wis. 367, 3 L.R.A. (N.S.) 583, 105 N. W. 828, holding a misstatement 
 as to what land a bank has to sell made by cashier having sale of lands in his 
 charge to a broker his agent for such sale is attributable to the bank and it is 
 liable for effects of sale thereunder; Puffer v. Welch, 144 Wis. 511, 129 N. W. 525, 
 Ann. Cas. 1912A, 1120, on power of agent to create other agents with equal au- 
 thority. 
 
 Cited in footnote to Milton v. Johnson, 47 L. R. A. 529, which denies power 
 of subagent to apply proceeds of debt collected, to payment of claim due him 
 from principal agent. 
 
 Cited in notes (50 Am. St. Rep. 119) on subagents and their relation to agent 
 appointing them; (2 Eng. Rul. Cas. 303, 304) on power of agent to delegate his 
 authority. 
 
 Distinguished in Williams v. Moore, 24 Tex. Civ. App. 406, 58 S. W. 953, de- 
 nying real estate agent's power to employ broker so as to bind principal for 
 commissions on selling to purchaser found by broker; Hoyer v. Ludington, 100 
 Wi>. 445, 76 X. W. 348, holding principal not responsible for misrepresentations 
 of agent as to incorporation c' company to purchase land for sale of which only 
 he is employed. 
 Sufficiency of complaint. 
 
 Cited in Thomson v. Elton, 109 Wis. 596, 85 N. W. 425, holding allegation that 
 money was used for lawful town purposes sufficient in action for money had and 
 received; Andresen v. Upham Mfg. Co. 120 Wis. 564, 98 N. W, 518, holding a 
 
6 L.R.A. 121] L. R. A. CASES AS AUTHORITIES. 1012 
 
 complaint framed after form of quantum valebat is sufficient to cover evidence that 
 goods were purchased by and delivered to a third person for defendant; Meyer v. 
 Doherty, 133 Wis. 405, 13 L.R.A.(N.S.) 249, 126 Am. St. Rep. 967, 113 N. W. 671, 
 holding a complaint in the usual form of conversion sufficient without stating; 
 the particulars of the claim. 
 
 6 L. R, A. 125, STATE v. SCHWEITZER, 57 Conn. 532, 18 Atl. 787. 
 Defense to prosecution for nonsnpport. 
 
 Cited in People v. Bliskey, 21 Misc. 434, 47 N. Y. Supp. 974, and People v, 
 Brady, 13 Misc. 296, 34 N. Y. Supp. 1118, holding adultery of wife defense to, 
 prosecution for nonsupport; Keller v. Foleron, 36 Misc. 536, 73 N. Y. Supp. 951, 
 holding adultery of wife no defense to surety on bond of husband to pay weekly 
 toward her support; State v. Stout, 139 Iowa, 561, 117 N. W. 958, an justification 
 for refusal to support wife. 
 Sufficiency of complaint for violation of ordinance. 
 
 Cited in State v. Carpenter, 60 Conn. 106, 22 Atl. 497, holding allegation that 
 place was kept for playing policy, contrary to ordinance, sufficient. 
 
 Cited in footnote to Haughn v. State, 59 L. R. A. 789, which holds indictment 
 for bunco steering which follows statutory language insufficient. 
 Preponderance of evidence. 
 
 Followed in Tucker v. State, 89 Md. 482, 46 L.R.A. 181, 43 Atl. 778, holding 
 that burden of proving an affirmative defense by way of justification is on the 
 defendant by a fair preponderance of evidence. 
 
 Cited in State v. Ballou, 20 R. I. 613, 40 Atl. 861, holding accused seeking 
 to excuse manslaughter on ground of attack must prove it by preponderance 
 of evidence; Tucker v. State, 89 Md. 482, 46 L. R. A. 185, 43 Atl. 778, holding 
 burden of showing justification for shooting one attacking third person is on de- 
 fendant in action for wrongfully causing death; State v. Bailey, 79 Conn. 602, 65 
 Atl. 951, holding that where self defense is pleaded against a charge of murder 
 the burden is on defendant to so prove by fair preponderance of evidence though 
 he need only raise a reasonable doubt as to his guilt thereby to be acquitted ; 
 Com. v. Standard Oil Co. 129 Ky. 555, 112 S. W. 632, holding that where de- 
 fense is a justification for sale of goods charged to be prohibited by statute 
 the burden of proving that such goods were not prohibited is on defendant, noth- 
 ing appearing in the prosecution to raise a reasonable doubt. 
 
 6 L. R. A. 128, PEOPLE v. ANDREWS, 115 N. Y. 427, 22 N. E. 358. 
 Evasion of excise laws by clubs. 
 
 Followed in People v. Sinell, 34 N. Y. S. R. 899, 12 N. Y. Supp. 40, sus- 
 taining conviction for illegal sale of liquor, where club was mere pretense to- 
 evade excise law. 
 
 Explained in People v. Adelphi Club, 149 N. Y. 10, 31 L. R. A. 512, footnote 
 p. 510, 52 Am. St. Rep. 700, 43 N. E. 410, holding furnishing of liquors to 
 member of bona fide social club not a sale. 
 
 Cited in People v. Luhrs, 7 Misc. 504, 28 N. Y. Supp. 498, holding it misde- 
 meanor for steward of jncorporated club without license, to serve liquors for pay 
 to members; Re Lyman, 28 App. Div. 130, 50 N. Y. Supp. 977, holding that club, 
 once bona fide, may be changed into establishment to evade law, and thereby 
 forfeit license; Barden v. Montana Club, 10 Mont. 335, 11 L. R. A. 595, footnote 
 p. 593, 24 Am. St. Rep. 27, 25 Pac. 1042, holding bona fide social club serving li- 
 quors to members and guests at fixed prices without profit not retail liquor 
 seller; People v. Bradley, 33 N. Y. S. R. 564, 11 N. Y. Supp. 594, upholding con- 
 viction of steward of fake club furnishing liquor to members buying tickets;. 
 
1013 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 132 
 
 State v. Boston Club, 45 La. Ann. 592, 20 L. R. A. 187, footnote p. 185, 12 So. 
 895, holding incorporated social club must have license, where statute requires 
 license for "sales, gifts, or other disposition;" Krnavek v. State, 38 Tex. Crim. 
 Rep. 49, 41 S. W. 612, upholding conviction where sale was made by steward 
 of fake club to member; Com. v. Tierney, 1 Pa. Dist. R. 20, 29 W. N. C. 196, 
 holding sale of liquor above cost by steward of incorporated club, to member, il- 
 legal ; R. v. Hughes, 29 Ont. Rep. 184, holding a steward of a club dispensing 
 liquor to members and others guilty of selling liquor under statute where such 
 liquor was given in exchange for tickets purchasable from club treasurer having 
 his office in the club building where the liquor was dispensed. 
 
 Cited in footnotes to State v. Easton Social, Literary, & Musical Club, 10 
 L. R. A. 64, which holds furnishing of liquor to members of club on payment 
 of fixed prices a sale; State ex rel. Stevenson v. Law & Order Club, 62 L.R.A. 
 884, which denies right of incorporated social club to dispense liquor to members 
 without license. 
 
 Cited in notes (10 L. R. A. 82) on taxation of social clubs; (12 L. R. A. 413) 
 on sales of liquor by social club; (12 L.R.A. (N.S.) 520, 522, 523) on applicability 
 of liquor laws to social club; (24 Am. St. Rep. 36; 28 Am. St. Rep. 832) on 
 distribution of liquor by social club. 
 
 Distinguished in State ex rel. Bell v. St. Louis Club, 125 Mo. 328, 26 L. R. 
 A. 580, footnote p. 573, 28 S. W. 604, holding distribution of liquor by bona fide 
 social club to members not a sale within dramshop act. 
 
 6 L. R. A. 132, CLARK v. FOSDICK, 118 N. Y. 7, 16 Am. St. Rep. 733, 22 N. 
 
 E. 1111, 23 N. E. 136. 
 Validity of separation agreements. 
 
 Cited in Buckel v. Suss, 28 Abb. N. C. 24, 18 N. Y. Supp. 719, holding that 
 wife having executed valid separation agreement cannot maintain action for 
 enticement; Lawrence v. Lawrence, 31 Misc. 649, 64 N. Y. Supp. 1113, upholding 
 in equity agreement between husband and wife, already separated, for mainte- 
 nance of children; Grube v. Grube, 65 App. Div. 241, 72 N. Y. Supp. 529, re- 
 fusing to allow wife, under valid separation agreement, weekly allowance pend- 
 ing divorce action; Chamberlain v. Cuming, 37 Misc. 816, 76 N. Y. Supp. 896, 
 holding agreement after separation valid, although referring to separation in 
 futuro; Duryea v. Bliven, 122 N. Y. 570, 25 N. E. 908, and France v. France, 
 38 Misc. 460, 77 N. Y. Supp. 1015, holding agreement after separation, through 
 trustee, valid; Stebbins v. Morris, 19 Mont. 120, 47 Pac. 642, holding separa- 
 tion must be necessary to validate separation agreement; Foote v. Xickerson, 70 
 N. H. 512, 54 L. R. A. 563, footnote p. 554, 48 Atl. 1088, holding voluntary sep- 
 aration agreement between husband and wife void; Carling v. Carling, 42 Misc. 
 493, 86 N. Y. Supp. 46, holding agreement, after separation, for separate main- 
 tenance of wife, not contrary to public policy; Winter v. Winter, 191 X. Y. 470, 
 16 L.R.A. (X.S.) 713, 84 N. E. 382, holding that husband and wife after separation 
 may make a binding contract for separate support of wife; Sunderlin v. Sunder- 
 lin, 123 App. Div. 423, 107 X. Y. Supp. 979, holding an agreement for separation 
 and separate support of wife made while the parties are living together and with- 
 out the intervention of trustee is void. 
 
 Cited in footnotes to Henderson v. Henderson, 48 L. R. A. 766, which holds 
 unmodifiable, without wife's consent, decree in conformity with separation 
 agreement for payment of stipulated monthly sum for wife's maintenance; Baum 
 v. Baum, 53 L. R. A. 650, which holds void, separation agreement on considera- 
 tion that husband support wife and children, and assign policies on his life; 
 Palmer v. Palmer, 61 L. R. A. 641, which holds void, contract between bus- 
 
6 L.R.A. 132] L. R. A. CASES AS AUTHORITIES. 1014' 
 
 band and wife to secure divorce; Bailey v. Dillon, 66 L.R.A. 427, which sustains- 
 right of husband and wife in contemplation of separation to enter into fair and 
 reasonable agreement through intervention of trustee as tc wife's support which 
 during continuance of separation husband may have specifically enforced. 
 
 Cited in notes (9 L.R.A. 113) on articles of separation between husband and 
 wife; (12 L.R.A. (N.S.) 850, 852) on validity of agreement between husband and 
 wife renouncing marital rights; (83 Am. St. Rep. 863, 873, 874) on validity 
 and effect of separation agreements. 
 
 Distinguished in Lawrence v. Lawrence, 32 Misc. 505, 66 N. Y. Supp. 393, 
 holding agreement to support children, solely between husband and wife, not 
 separated, pending divorce, void; Poillon v. Poillon, 49 App. Div. 343, 63 N. Y. 
 Supp. 301, Affirming 29 Misc. 668, 61 N. Y. Supp. 582, holding agreement be- 
 tween husband and wife to separate, void; Edic v. Horn, 42 Misc. 30, 85 N". Y.. 
 Supp. 535, holding tripartite agreement for separate maintenance, confirming', 
 one made while living together, against public policy. 
 Effect of divorce on separation agreements. 
 
 Cited in Galusha v. Galusha, 116 N. Y. 645, 6 L. R. A. 487, 15 Am. St. Rep.. 
 453, 22 N. E. 1114, holding valid separation agreement unaffected by decree of 
 divorce; Chamberlain v. Cuming, 29 N. Y. S. R. 675, 8 N. Y. Supp. 851, hold- 
 ing valid separation agreement not rescinded by action for divorce and applica- 
 tion for alimony and counsel fees; Taylor v. Taylor, 32 Misc. 314, 66 N. Y. Supp. 
 561, holding unlawful marriage of husband after valid separation agreement does 
 not entitle wife to alimony; Jones v. Jones, 1 Colo. App. 31, 27 Pac. 85, holding 
 valid separation agreement unaffected by divorce decree without alimony. 
 
 6 L. R. A. 136, ROLLER v. BEAM, 86 Va. 512, 10 S. E. 241. 
 \ .>!., n in n t of policy. 
 
 Cited in Spooner v. Hilbish, 92 Va. 339, 23 S. E. 751, upholding action by 
 personal representative and creditor of deceased to set aside assignment of policy. 
 
 Cited in footnotes to Steele v. Gatlin, 59 L. R. A. 129, which holds complete 
 gift not made by verbal assignment of life policy, accompanied with words in- 
 dicating intent to give, and delivery of, policy; Opitz v. Karel, 62 L. R. A. 982, 
 holding insured may make valid gift of proceeds by delivery of policy payable 
 to personal representative; McQuillan v. Mutual Reserve Fund Life Asso. 56 L, 
 R. A. 233, which sustains right to provide that assigned policy shall be void 
 as to all above debt due assignee; Steinback v. Diepenbrock, 44 L. R. A. 417, 
 which authorizes assignment of policy to one having no insurable interest ; 
 Chamberlain v. Butler, 54 L. R. A. 338, which sustains right to assign policy on 
 own life to one without insurable interest ; Mutual Reserve Fund Life Asso: 
 v. Hurst, 20 L. R. A. 761, which holds assignee's insurable interest as creditor 
 not condition of recovery on policy; American Mut. L. Ins. Co. v. Bertram, 64 
 L. R. A. 935, holding innocent assignee of policy taken by person without in- 
 surable interest in life of insured may recover premiums paid; Hinton v. Mutual 
 Reserve Fund L. Asso. 65 L.R.A. 161, which holds insurance company nort liable 
 on policy issued to wife of mortgagor and assigned by her to mortgagee as 
 security for the debt; Gordon v. Ware Nat. Bank, 67 L.R.A. 550, which holds as- 
 signment of life policy immediately on its issue to evade rule against issuing 
 policy to one without insurable interest renders assignment void. 
 
 Cited in notes (3 L.R.A. (N.S.) 949) on validity of assignment of interest in 
 life insurance to one paying premiums; (6 L.R.A. (N.S.) 129) on validity of as- 
 signment not made as cover for wager policy of life insurance to one having no 
 insurable interest. 
 
1015 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 140 
 
 Disapproved in Farmers & T. Bank v. Johnson, 118 Iowa, 285, 91 N. W. 1074, 
 holding life insurance policy may be assigned to person without insurable interest. 
 : N -ii i-.-i hit- interest. 
 
 Cited in Long v. Meriden Britannia Co. 94 Va. 603, 27 S. E. 499, holding as- 
 signment of policy as security valid, though debtor thereafter be released from 
 personal liability; Crosswell v. Connecticut Indemnity Asso. 51 S. C. 108, 28 
 S. E. 200, holding valid policy assigned in good faith to person without in- 
 surable interest by beneficiary and insured, with insurer's consent; Tate v. 
 Commercial Bldg. Asso. 97 Va. 77, 45 L. R. A. 245, 75 Am. St. Rep. 770, 33 
 S. E. 382, holding building association has no insurable interest in member not 
 indebted to it; Peoria Life Asso. v. Hines, 332 111. App. 647, holding that a 
 policy can be assigned to a creditor of insured as security for debt, also citing 
 annotation to same point; Metropolitan L. Ins. Co. v. Elison, 72 Kan. 205, 
 3 L.R.A.(N.S-) 943, 115 Am. St. Rep. 189, 83 Pac. 410, 7 A. A E. Ann. Gas. 909, 
 holding that one having no insurable interest in life of insured cannot take 
 apart assignment of policy interest in consideration for payment of premiums; 
 Lewis v. Palmer, 106 Va. 526, 56 S. E. 341, holding wife has an insurable in- 
 terest in life of husband and may purchase policy of insurance on his life which 
 has been assigned to creditor as collateral security. 
 
 Cited in footnote to Adams v. Reed, 35 L. R. A. 692, which holds woman has 
 insurable interest in life of son-in-law. 
 
 Cited in note (13 Eng. Rul. Cas. 397) on insurable interest in life. 
 Anionnt recoverable by assignee of policy- 
 
 Cited in New York L. Ins. Co. v. Davis, 96 Va. 741, 44 L. R. A. 306, 32 
 S. E. 475, holding assignee of policy to secure debt limited to recovery of in- 
 debtedness; Tate v. Commercial Bldg. Asso. 97 Va. 78, 45 L. R. A. 245, 75 Am. 
 St. Rep. 770, 33 S. E. 382, holding association receiving proceeds on member's 
 policy can retain only amount of premiums paid by it and expenses; Exchange 
 Bank v. Loh, 104 Ga. 452, 44 L. R. A. 381, 31 S. E. 459, and First Nat. Bank 
 v. Terry, 99 Va. 196, 37 S. E. 843, holding creditor's insurable interest in debt- 
 or's life limited to amount of debt, premiums paid, and interest; Kessler v. 
 Kuhns, 1 Ind. App. 518, 27 N. E. 980, holding holder of valid policy on an- 
 other's life cannot assign same to creditors without insurable interest; Hays v. 
 Lapeyre, 48 La. Ann. 755, 35 L. R. A. 652, 19 So. 821, holding creditor not en- 
 titled to proceeds of policy beyond advances, attorney's fees, and interest; Woody 
 v. Schaaf, 106 Va. 802, 56 S. E. 807. holding bond of indebtedness issued to credit- 
 or who has insured life of debtor is prima facie evidence of insurable interest 
 and amount thereof that creditor has in life of debtor. 
 
 6 L. R. A. 140, STOELKER v. THORNTON, 88 Ala. 241, 6 So. 680. 
 
 / 
 Assignment of insurance policy. 
 
 Cited in Culver v. Guyer, 129 Ala. 607, 29 So. 779, holding assignee of insur- 
 ance policy holds, as trustee, excess of proceeds over outlay therefor; Spies 
 v. Stikes, 112 Ala. 588, 20 So. 959, holding guardian cannot be allowed "a 
 child's part" of proceeds of benefit certificate, as promised by holder thereof 
 in consideration of payment of assessments; Sands v. Hammell, 108 Ala. 626, 
 18 So. 489, holding creditor entitled to proceeds of insurance policy assigned 
 to secure bona fide debt: Farmers & T. Bank v. Johnson, 118 Iowa, 285, 91 N. 
 W. 1074. sustaining assignment of life insurance policy as security to one 
 without insurable interest: Troy v. London, 145 Ala. 284. 39 So. 713, holding the 
 presumption being against insurable interest, the assignee must prove the in- 
 terest upon which the assignment is based; Middelstadt v. Grand Lodge S. H. 107 
 
6 L.R.A. 140] L. R. A. CASES AS AUTHORITIES. 1016 
 
 Minn. 233, 120 N. W. 37, holding insured may dispose of proceeds from benefit 
 certificate by will to one not having an insurable interest in his life. 
 
 Cited in note (3 L.R.A. (N.S.) 939, 944) on validity of assignment of interest 
 in life insurance to one paying premiums; (19 Am. St. Rep. 791; 52 Am. St. Rep. 
 566) on assignment of benefits in mutual benefit association; (87 Am. St. Rep. 
 518) on assignment of life insurance policies. 
 Insurer's rules as to transfer of policy. 
 
 Cited in Nye v. Grand Lodge, A. O. U. W. 9 Ind. App. 154, 36 N. E. 429, hold- 
 ing beneficiary certificate assignable to one without interest in assured'a life, if 
 not used as cloak for wager, and where not obnoxious to society's regulations. 
 
 Cited in notes (7 L. R. A. 189) on transfer of mutual benefit certificate; 
 (15 L. R. A. 351) on changing designation in benefit certificate otherwise than in 
 prescribed method. 
 
 6 L. R. A. 143, DEAN v. PENNSYLVANIA R. CO. 129 Pa. 514, 15 Am. St 
 
 Rep. 733, 18 Atl. 718. 
 Imputed negligence. 
 
 Cited in Bunting v. Hogsett, 139 Pa. 375, 12 L. R. A. 270, 23 Am. St. Rep. 
 192, 21 Atl. 31, holding that carrier's negligence cannot be imputed to paosen- 
 ger so as to defeat recovery from third person for negligence; Pyle v. Clark, 75 
 Fed. 648, holding negligence of driver of private conveyance not imputable to 
 one riding with him with right to assume that driver is exercising ordinary 
 care; Downey v. Philadelphia Traction Co. 14 Pa. Co. Ct. 252, 3 Pa. Dist. 
 R. 82, holding that passenger upon street car, injured by joint negligence of 
 street car company and railroad company, may have verdict against both ; 
 Mullen v. Owosso, 100 Mich. 108, 23 L. R. A. 694, footnote p. 693, 43 Am. St. 
 Rep. 436, 58 N. W. 663 (dissenting opinion), majority holding negligence of 
 driver of private carriage is imputable to woman of age of discretion voluntarily 
 riding with him; Lohman v. McManus, 23 Pa. Co. Ct. 502, 9 Pa. Dist. R. 226, 
 holding negligence of driver to be imputed to guest knowing of, and accepting, 
 risk presented; Duval v. Atlantic Coast Line R. Co. 134 N. C. 344, 65 L. R. 
 A. 727, 46 S. E. 750, holding negligence of driver not imputable to occupant of 
 vehicle; Bresee v. Los Angeles Traction Co. 149 Cal. 136, 5 L.R.A.(N.S.) 1062, 
 $5 Pac. 152, on care required to escape imputation of negligence of driver; Flynn 
 v. Chicago City R. Co. 250 111. 474, 95 N. E. 449, holding that person riding with 
 another who is owner and driver cannot recover for injury at railroad crossing 
 if his own negligence contributes to injury; McBride v. Des Moines, 134 Iowa, 
 407, 109 N. W. 618, on the general rule of imputed negligence; Shultz v. Old 
 Colony Street R. Co. 193 Mass. 315, 8 L.R.A. (N.S.) 604, 118 Am. St. Rep. 502, 
 79 N. E. 873, 9 A. & E. Ann. Cas. 402, holding that the negligence of driver con- 
 curring with that of third person cannot be imputed to the one injured riding as 
 a guest using due care and having no knowledge of impending danger; Marsh 
 v. Kansas City Southern R. Co. 104 Mo. App. 587, 78 S. W. 284, holding that re- 
 covery for death by negligent act is not defeated by concurring negligence of 
 person driving wagon in which deceased is riding as guest and at the time not 
 knowing of driver's negligence; Loso v. Lancaster County, 77 Neb. 469, 8 L.R.A. 
 (N.S.) 624, 109 N. W. 752, holding that where person injured while riding in 
 privatf; vehicle is free from negligence and no privity exists between him and 
 his driver the concurring negligence of the driver cannot be imputed to person 
 injured; Little v. Central Dist. & Printing Teleg. Co. 213 Pa. 237, 62 Atl. 848; 
 Duval v. Atlantic Coast Line R. Co. 134 N. C. 344, 65 L.R.A. 727, 101 Am. St. Rep- 
 830, 46 S. E. 750, holding negligence of driver concurring with that of another 
 not imputable to guest riding in private carriage; Kammerdiener v. Rayburn Twp. 
 
1017 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 14? 
 
 233 Pa. 330, 82 Atl. 464, holding that negligence of driver cannot be imputed to 
 person riding, in action against town for injury caused by defective bridge 
 where such person had no control over driver and he took dangerous road and 
 might have taken safe road; Gibson v. Bessemer & L. E. R. Co. 37 Pa. Super. Ct. 
 75, on the imputation of negligence of driver to the party hiring or riding; 
 Thompson v. Pennsylvania R. Co. 215 Pa. 115, 64 Atl. 323, 7 A. & E. Ann. Cas. 
 351, holding negligence of driver of fire engine is the negligence of fireman riding 
 thereon where fireman knew that no stop would be made at railroad crossing 
 where injury resulted; Brommer v. Pennsylvania R. Co. 29 L.R.A. (N.S. ) 928 r 
 103 C. C. A. 135, 179 Fed. 581, holding that person riding in automobile on in- 
 vitation is guilty of contributory negligence if he fails to exercise care for his 
 safety on approaching railroad crossing; Foley v. East Flamborough Twp. 26 
 Ont. App. Rep. 47, holding that negligence of driver cannot be imputed to person 
 who is merely an occupant of a private conveyance as a guest. 
 
 Cited in footnotes to Union P. R. Co. v. Lapsley, 16 L. R. A. 800, which 
 holds negligence of carriage owner in driving team not imputable to passen- 
 ger; East Tennessee, V. & G. R. Co. v. Markens, 14 L. R. A. 281, which holds 
 hack driver's negligence in colliding with train not imputable to passenger. 
 
 Cited in notes (8 L. R. A. 844) as to imputation of negligence to child; 
 (9 L.R.A. 157) as to imputation of driver's negligence to passenger; (16 Am. 
 St. Rep. 254; 57 Am. St. Rep. 360, 361; 110 Am. St. Rep. 292; 8 L.R.A.(N.S.) 
 609, 610, 655, 675) on imputed negligence of driver to passenger. 
 
 Distinguished in Colorado & S. R. Co. v. Thomas, 33 Colo. 522, 70 L.R.A. 684, 
 81 Pac. 801, 3 A. & E. Ann. Gas. 700, holding that no recovery for death may be 
 had where deceased the guest of person driving without care to avoid accident 
 joined with driver in attempt to cross; McMahen v. White, 30 Pa. Super. Ct. 
 179, holding negligence of gnest in driving owner's vehicle such owner having 
 immediate means of control, is imputable to such owner. 
 
 Disapproved in Matthews v. Delaware, L. & W. R, Co. 56 N. J. L. 37, 22 L. R. 
 A. 262, 27 Atl. 919, holding that where collision occurs through concurring neg- 
 ligence of street car and railroad companies, passenger may maintain joint action. 
 Contributory negligence. 
 
 Cited in Snyrler v. Penn Twp. 14 Pa. Super. Ct. 154, holding one riding upon 
 another's wagon, who joins him in testing dangers which she knows exist, guilty 
 of contributory negligence; Illinois C. R. Co. v. McLeod, 78 Miss. 342, 52 L. R. A. 
 956, footnote, p. 954, 84 Am. St. Rep. 630, 29 So. 76, holding one riding with 
 hired team, vehicle, and driver, guilty of contributory negligence in not checking 
 or remonstrating with latter in case of apparent peril from crossing before ap- 
 proaching train; Miller v. Louisville, N. A. & C. R. Co. 128 Ind. 101, 25 Am. St. 
 Rep. 416, 27 N. E. 339, holding wife riding with husband, guilty of contributory 
 negligence in failing to exercise ordinary care at railroad crossing known to her 
 to be dangerous ; Whitman v. Fisher, 98 Me. 578, 57 Atl. 895, holding that where 
 both driver and person riding have equal chance of averting accident by use of 
 due care under the circumstances the person riding cannot recover for injury 
 caused by negligence of driver and another; Cotton v. Willmar & S. F. R. Co. 99 
 Minn. 372, 8 L.R.A. (N.S.) 654, 116 Am. St. Rep. 422, 109 N. W 7 . 835, 9 A. & E. 
 Ann. Cas. 935, holding it the duty of one riding in a hired conveyance to notify 
 driver of apparent danger or take precautions for his own safety. Davis v. 
 Chicago, R. I. & P. R. Co. 16 L.R.A. (N.S.) 431, 88 . C. A. 488, 159 Fed. 19; 
 Fechley v. Springfield Traction Co. 119 Mo. App. 367, 96 S. W. 421, holding 
 person guilty of contributory negligence who while riding as guest of driver and 
 seeing negligence of such driver in crossing track, does nothing to insure his own 
 personal safety; Dryden v. Pennsylvania R. Co. 211 Pa. 623, 61 Atl. 249, holding 
 
6 L.R.A. 143] L. R. A. CASES AS AUTHORITIES. 1018 
 
 that where deceased whose husband hired a buggy was killed by negligence of 
 driver and herself in failing to look or listen she cannot recover because of con- 
 tributory negligence; Bracken v. Pennsylvania R. Co. 32 Pa. Super. Ct. 34, hold- 
 ing that a 12 year old boy may be guilty of contributory negligence in riding 
 across a track with driver of wagon who fails to stop, look and listen. 
 
 Cited in footnotes to Howe v. Minneapolis, St. P. & S. Ste. M. R. Co. 30 L. R. 
 A. 684, which holds negligence of one riding with another when injured at rail- 
 road crossing a question for jury; Western & A. R. Co. v. Ferguson, 54 L. R. A. 
 802, which holds failure to look when within 30 feet of track does not prevent re- 
 covery. 
 
 Distinguished in Carr v. Easton, 142 Pa. 143, 21 Atl. 822, holding guest in 
 sleigh overturned in turning aside to pass approaching team not guilty of con- 
 tributory negligence, as matter of law, if danger not patent; Cahill v. Cincinnati, 
 N. O. & T. P. R, Co. 92 Ky. 357, 18 S. W. 2, holding that driver's negligence 
 cannot be imputed to guest; O'Toole v. Pittsburgh & L. E. R. Co. 158 Pa. 107, 
 22 L. R. A. 609, 38 Am. St. Rep. 830, 27 Atl. 737, holding crippled passenger on 
 street car approaching railroad crossing, which stopped 75 feet away and again 
 started, under no duty to ascertain safety of crossing and to jump if dangerous; 
 Baltimore & O. R. Co. v. State, 79 Md. 344, 47 Am. St. Rep. 415, 29 Atl. 518, hold- 
 ing invited guest of able and competent driver of quiet horse not chargeable with 
 driver's negligence, where himself without blame; Howe v. Minneapolis, St. P. & 
 S. Ste. M. R. Co. 62 Minn. 81, 30 L. R. A. 688, 54 Am. St. Rep. 616, 64 N. W. 102, 
 holding negligence of guest riding with driver over whom he had no control, for 
 jury, where injury avoidable by exercise of due care by one in control. 
 
 6 L. R, A. 146, DUBE v. BEAUDRY, 150 Mass. 448, 15 Am. St. Rep. 228, 23 
 
 N. E. 222. 
 Minor's disafltrmance. 
 
 Cited in Morse v. Ely, 154 Mass. 459, 26 Am. St. Rep. 263, 28 N. E. 577, and 
 White v. New Bedford Cotton Waste Corp. 178 Mass. 24, 59 N". E. 642, holding 
 that minor's right to disaffirm does not depend upon putting the other party in 
 statu quo; Gillis v. Goodwin, 180 Mass. 140, 91 Am. St. Rep. 265, 61 N. E. 813, 
 holding that minor's contract to purchase bicycle may be disaffirmed without 
 allowing for rent and use, or putting other party in statu quo. 
 
 Cited in notes (15 L. R. A. 213) as to infant's right to repudiate contract for 
 services and sue on quantum meruit; (26 L. R. A. 181) as to necessity of return- 
 ing consideration in order to disaffirm infants' contracts. 
 
 6 L. R. A. 147, WEEKS v. HOBSOX, 150 Mass. 377, 23 X. E. 215. 
 Cy pres doctrine. 
 
 Cited in Atty. Gen. v. Briggs, 164 Mass. 568, 42 N. E. 118, holding that be- 
 quest for support of school in specified district should, on abolishment of such 
 district, be applied to maintenance, as near as possible, of school in same terri- 
 tory, though it accommodates children from other territory also; Amory v. Atty. 
 Gen. 179 Mass. 105, 60 N. E. 391, holding that, upon failure of devise of lands 
 for charitable purpose, they may be sold and income of proceeds devoted to 
 devisee's general purposes, or, when possible, to fulfilment of testator's specific 
 plan; Lackland v. Walker, 151 Mo. 255, 52 S. W. 414, holding that equity may 
 decree sale of lands devised for charitable purpose, when necessary to adminis- 
 tration of trust, although declared inalienable; Tacoma v. Tacoma Cemetery, 28 
 Wash. 246, 68 Pac. 723, holding that trustees may sell land donated for cemetery, 
 although donor intended it to be used instead of sold; Teele v. Bishop of Derry, 
 168 Mass. 343, 38 L. R. A. 630, 60 Am. St. Rep. 401, 47 N. E. 422, holding failure 
 
1019 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 149 
 
 of purpose of bequest for building chapel, as nonsupportable, will not justify di- 
 version to repair neighboring parish church, or for parish house, or graveyard, 
 or general benefit; Boston v. Doyle, 184 Mass. 382, 68 N. E. 851, holding that, 
 upon abolition of class of persons designated as managers of charitable trust, 
 equity will appoint other managers; Old Ladies' Home v. Hoffman, 117 Iowa, 719, 
 89 N. W. 1066, holding orphan asylum, near but not within corporate limits, en- 
 titled to bequest to asylum in certain city, if any in existence; Boston v. Doyle, 
 184 Mass. 382, 68 N. E. 851, holding that on a failure of trustees for a public 
 charity caused by lack of provision for such contingency, it is duty of court of 
 equity to supply the deficiency as near to intent of testator as possible; Codman 
 v. Brighain, 187 Mass. 313, 105 Am. St. Rep. 394, 72 X. E. 1008, holding that on 
 failure of incorporation to execute a charitable trust, the gift does not fail the 
 court supplying another method of administration to accomplish substantially 
 same result; Richardson v. Mullery, 200 Mass. 250, 86 X. E. 319, holding that 
 on refusal of government to accept trust in favor of life saving station and those 
 wrecked near by the probate court may administer the trust in some adequate 
 way in conformance with the general charitable purpose of testator; Ely v. Atty. 
 Gen. 202 Mass. 547, 89 N. E. 166, holding will of testator to establish a home 
 would not fail because of insufficiency of funds, if the fund could be given in aid 
 of an existing similar home; Grimke v. Atty. Gen. 206 Mass. 52, 91 N. E. 899; 
 Pierce v. Stevens, 205 Mass. 223, 91 X. E. 319, to the point if establishment 
 of charitable corporation to carry out gift under will court may apply doctrine of 
 cy pres and provide other method of administering charity. 
 
 Cited in footnotes tc Crerar v. Williams, 21 L. R. A. 454, which holds other 
 mode for taking effect of charity will be provided if mode pointed out in will 
 fails; Kelly v. Xichols, 19 L. R, A. 413, which holds doctrine of cy pres inappli- 
 cable to bequest not made to definite charitable use; Gladding v. St. Matthew's 
 Church, 65 L.R.A. 225, which holds that legacy to a particular church will not 
 be administered cy pres after termination of its existence in behalf of deaf mutes 
 for whose benefit the church was. 
 
 Cited in notes (14 L.R.A. (X.S.) 145) on enforcement of general bequest for 
 charity or religion; (63 Am. St. Rep. 262) on what are charitable uses or trusts. 
 
 6 L. R. A. 149, BULLITT v. FARRAR, 42 Minn. 8, 18 Am. St. Rep. 485, 43 
 
 N. W. 566. 
 Representations without knowledge. 
 
 Cited in Carlton v. Hulett, 49 Minn. 319, 51 N. W. 1053, holding unqualified 
 false representations fraudulent; Hamlin v. Abell, 120 Mo. 205, 25 S. W. 516; 
 Snively v. Meixsell, 97 111. App. 372; Knappen v. Freeman, 47 Minn. 495, 50 
 N. W. 533, holding unqualified affirmation amounts to affirmation on per- 
 sonal knowledge; Charles P. Kellogg Co. v. Holm, 82 Minn. 419, 85 X. W. 159, 
 holding it immaterial whether merchant knew statements as to his finances were 
 false and fraudulent; Hadcock v. Osmer, 153 X. Y. 610, 47 X. E. 923, holding false 
 representations, without knowledge, actionable; Gerner v. Yates, 61 Xeb. 107, 
 84 X. W. 596, holding assertion of fact as of personal knowledge, without such 
 knowledge, wuful falsehood; Martin v. Eagle Development Co. 41 Or. 455, 69 
 Pac. 216, holding representations which evidently did not mislead purchaser, no 
 basis for claim of fraud; Westerman v. Corder, 86 Kan. 242, 39 L.R.A. (X.S.) 501, 
 119 Pac. 868; Freeman v. F. P. Harbaugh Co. 114 Minn. 286, 130 X. W. 1110; 
 Morrow v-. Bonebrake, 84 Kan. 729, 34 L.R.A. (X.S.) 1150, 115 Pac. 585, hold- 
 ing that seller who makes positive statements not known by him to be true, 
 upon which purchaser relies, and which statements are false, is answerable to 
 purchaser. 
 
6 L.R.A. 149] L. R. A. CASES AS AUTHORITIES. 102O 
 
 Cited in notes (11 L. R. A. 197) on action for deceit and fraudulent representa- 
 tions in case of breach of warranty; (35 L. R. A. 431) on expression of opinion as 
 fraud; (18 Am. St. Rep. 560) on necessity for false representations being made 
 with knowledge of their falsity. 
 Fraudulent intent. 
 
 Cited in Martin v. Eagle Development Co. 41 Or. 455, 69 Pac. 216, holding 
 false representations to purchaser of property not actionable where he was not 
 misled; Watson v. Jones, 41 Fla. 253, 25 So. 678, upholding declaration alleging 
 actual knowledge and constructive knowledge of falsity of statements; Holt v. 
 Sims, 94 Minn. 159, 102 X. W. 386, holding it necessary to allege intent to deceive 
 as well as prove the deceit, upon which purchaser relies. 
 False statements Innocently made. 
 
 Cited in Browning v. National Capital Bank, 13 App. D. C. 17, holding belief 
 in truth of false representation no defense; Adams v. Reed, 11 Utah, 504, 40 Pac. 
 720, and Vaughn v. Smith, 34 Or. 57, 55 Pac. 99, rescinding conveyance because of 
 false representations as to title, although innocently made. 
 
 6 L. R. A. 152, O'SHIELDS v. GEORGIA P. R. CO. 83 Ga. 621, 10 S. E. 268. 
 General statute of limitations and limitations of statutory right. 
 
 Cited in Brunswick Terminal Co. v. National Bank, 48 L. R. A. 632, 40 C. C. A. 
 25, 99 Fed. 638, Reversing 88 Fed. 610, holding, in action in Maryland to en- 
 force liability of stockholder in Georgia corporations, Georgia statute of limita- 
 tions governs; Theroux v. Northern P. R. Co. 12 C. C. A. 53, 27 U. S. App. 508, 
 64 Fed. 85, holding limitation in statute of state giving right of action governs; 
 Williams v. St. Louis & S. F. R. Co. 123 Mo. 583, 27 S. W. 387, and Munos v. 
 Southern P. Co. 2 C. C. A. 165, 2 U. S. App. 222, 51 Fed. 190, holding that unless 
 statute giving right of action for tort prescribes limitation, law of forum gov- 
 erns; Poff v. New England Teleph. & Teleg. Co. 72 N. H. 166, 55 Atl. 891, holding 
 plaintiff in administrator's action for personal injuries to decedent must show 
 action brought within time limited; Gulledge v. Seaboard Air Line R. Co. 348 N. 
 C. 570, 62 S. E. 732, holding special limitation inhering in the right is not ex- 
 tended by causes enumerated in the general statutes; Ross v. Kansas City South- 
 ern R. Co. 34 Tex. Civ. App. 587, 79 S. W. 626, holding where statute creating 
 cause of action also prescribes limitation to the right such limitation governs in 
 what ever form the action is brought; Gregory v. Southern P. Co. 157 Fed. 119 r 
 holding a limitation on which a cause of action is conditioned pertains to the 
 right and a general limitation pertains to remedy and an action so limited is 
 governed by lex forum. 
 
 Cited in footnote to Allen v. Allen, 16 L. R. A. 647, which holds right to redeem 
 land from mortgage or absolute deed given as security governed by rule in state 
 where land is located, that right is barred if debt is barred. - 
 
 Cited in note (48 L. R, A. 638) as to when statute of limitations will govern 
 action in another state or country. 
 
 Distinguished in Montague v. Cummings, 119 Ga. 140, 45 S. E. 979, holding 
 general limitation law of forum applies to action given by foreign law and 
 not specially limited thereby though the action is not similar to any domestic 
 one. 
 Conflict of laws. 
 
 Cited in Atlanta, K. & N. R. Co. v. Smith, 1 Ga. App. 168, 58 S. E. 106, 
 holding right to amend governed by lex fori, being remedial and pertaining solely 
 to procedure. 
 
 Cited in note (5 Eng. Rul. Gas. 945) on law governing remedies. 
 
1021 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 155 
 
 Comity. 
 
 Cited in Southern R. Co. v. Decker, 5 Ga. App. 30, 62 S. E. 678, holding a 
 statute of another state giving different measure of damages is not violative of 
 public policy and will be recognized. 
 Motion to dismiss. 
 
 Cited in Murray v. McGuire, 129 Ga. 271, 58 S. E. 841, holding that motion in 
 nature of general demurrer in dismissal may be made by defendant where no 
 cause of action is set out. 
 
 6 L. R. A. 155, ADAMS COUNTY v. QUIXCY, 130 111. 566, 22 N. E. 624. 
 Exemption from taxation or local assessments. 
 
 Cited in Board of Improvement v. School District, 56 Ark. 360, 16 L. R. A. 421, 
 35 Am. St. Rep. 108, 19 S. W. 969, holding school property exempt from local 
 assessment; Chicago, use of Schools, v. Chicago, 207 111. 43, 69 N. E. 580, holding 
 school property outside of section 16 donated by Congress, liable to special assess- 
 ment, whether occupied for school purposes, vacant, or used as source of revenue ; 
 Franklin County v. Ottawa. 49 Kan. 757, 33 Am. St. Rep. 396, 31 Pac. 788, hold- 
 ing county taxable for improvement of street in front of courthouse; Edwards & 
 W. Constr. Co. v. Jasper County, 117 Iowa, 373, 94 Am. St. Rep. 301, 90 X. W. 
 1006, holding public square, occupied by courthouse, subject to assessment for 
 paving bounding streets; Washburn Memorial Orphan Asylum v. State, 73 Minn. 
 346, 76 N. W. 204, holding charitable institutions not exempt from special local 
 improvement assessments ; New Orleans v. Warner, 175 U. S. 140, 44 L. ed. 106, 
 20 Sup. Ct. Rep. 44, holding local assessments against city of New Orleans for 
 drainage valid; Yates v. Milwaukee, 92 Wis. 358, 66 N. W. 248, holding land 
 exempted from taxation not exempted from local assessment; Atlanta v. First 
 Presby. Church, 86 Ga. 742, 12 L. R. A. 855, 13 S. E. 252, holding church property 
 not exempt from local assessment; Supreme Lodge M. A. F. O. v. Effingham 
 County, 223 111. 56, 79 N. E. 23, 7 A. & E. Ann. Cas. 38, holding money of 
 fraternal benefit associations used exclusively for purpose of organization not 
 entitled to exemption from taxation; Franklinton v. Washington Parish, 126 La. 
 3, 52 So. 172, holding that exemption of court house square from taxation does 
 not exempt it from special assessment for paving sidewalks in front thereof; 
 Newberry v. Detroit, 164 Mich. 413, 32 L.R.A.(N.S.) 306, 129 N. W. 699; Whit- 
 taker v. Deadwood, 23 S. D. 543, 139 Am. St. Rep. 1076, 122 N. W. 590, 
 holding that assessment for local improvements is not taxation within meaning 
 of statute exempting state, county or municipal property from taxation. 
 
 Cited in notes (12 L. R. A. 852) on exemption of church property from special 
 assessment under exemption from taxes generally; (35 L. R, A. 38) on liability 
 to local assessments for benefits to property exempt from general taxation; (33 
 Am. St. Rep. 410) on taxation and assessment of public property; (132 Am. St. 
 Rep. 300, 307, 312, 315, 316, 323) on exemption from taxation or assessment of 
 lands owned by governmental bodies, or in which they have an interest; (44 L. ed. 
 U. S. 97) on liability of public property to assessment for public improvements; 
 (22 Eng. Rul. Cas. 448) on exemption of public property from taxation. 
 
 Distinguished in Re Mt. Vernon, 147 111. 363, 23 L. R. A. 810, 35 N. E. 533, 
 holding property of state exempt from special taxation. 
 
 Disapproved in Re Howard Ave. North. 44 Wash. 65, 86 Pac. 1117, 12 A. & E. 
 Ann. Cas. 417, holding that public school property may be taxed for benefits 
 received from local improvements though there be no statute expressly au- 
 thorizing taxation of such property. 
 
6 L.R.A. 155] L. R. A. CASES AS AUTHORITIES. 1022- 
 
 . Constitutionality of local assessments. 
 
 Cited in Chicago & A. R. Co. v. Joliet, 153 111. 654, 39 X. E. 1077, and Chicago 
 & N. W. R. Co. v. Elmhurst, 165 111. 155, 46 N. E. 437, holding special taxation 
 for local improvement, in proportion to frontage, constitutional. 
 
 Cited in note (28 L.R.A.(X.S.) 1134, 1141, 1142) on constitutionality of as- 
 sessments for improvements by front-foot rule. 
 Xature of local assessment. 
 
 Cited in Springer v. Walters, 139 111. 422, 28 N. E. 761, and Chicago & A. R. 
 Co. v. Joliet, 153 111. 654, 39 N. E. 1077, holding special taxation for local im- 
 provements proper exercise of taxing power; Seanor v. YVhatcom County, 13 Wash. 
 59, 42 Pac. 552, holding local assessment not a tax within Constitution forbidding 
 legislature to tax municipal corporations for municipal purposes. 
 
 Cited in footnotes to Denver v. Knowles, 17 L. R. A. 135, which holds local 
 assessments not a "tax;" Pettcbone v. Smith, 17 L. R. A. 423, which holds sewer 
 and street assessments not within covenant for payment of all taxes by lessee. 
 
 Cited in notes (8 L. R. A. 369) on constitutional restriction as to valuation, 
 equality, and uniformity in taxation; (23 L. R. A. 808, 810) on municipal assess- 
 ment of state property. 
 Oefiniteness of ordinance for local Improvements. 
 
 Cited in Culver v. Chicago, 171 111. 402, 49 N. E. 573, and Hynes v. Chicago, 
 175 111. 57, 51 N. E. 705, holding ordinance giving nature, character, and de- 
 scription of improvement with reasonable certainty, valid; Woods v. Chicago, 135 
 111. 585, 26 N. E. 608, holding ordinance directing paving of certain street ex- 
 cept a 16-foot strip in middle sufficiently definite as to width; Dickey v. Chicago, 
 164 111. 39, 45 N. E. 537, holding width of street need not be stated, when street 
 is of known and fixed width; The People ex rel. Kochersperger v. Markley, 166 
 111. 53, 46 N. E. 742, holding width need not be stated where ordinance provides 
 for paving entire street; Houston v. Chicago, 191 111. 562, 61 X. E. 396, and Givins 
 v. Chicago, 188 111. 355, 58 N. E. 912, holding ordinance from which width of 
 paving easily ascertainable valid; People ex rel. Whittock v. Willison, 237 111. 
 588, 86 N. E. 1094, on definiteness required in a city ordinance providing for a 
 local improvement; Chicago v. Sonkup, 245 111. 638, 92 N. E. 564, as referring 
 to definiteness of description of improvement required in the ordinance as dis- 
 tinguished from description required in resolution. 
 Scope of ordinance. 
 
 Cited in Payne v. South Springfield, 161 111. 290, 44 N. E. 105, holding ordi- 
 nance providing for main sewer and branches valid; Haley v. Alton, 152 111. 117, 
 38 N. E. 750, sustaining ordinance for paving three streets of different widths; 
 Lewis v. Albertson, 23 Ind. App. 155, 53 N. E. 1071, holding one resolution may 
 provide for improvement of two streets; Re Fourth Street, 33 Pa. Co. Ct. 207, 18 
 Pa. Dist. R. 991, holding an ordinance of a city of third class for opening and 
 grading several streets not void for containing more than one subject. 
 Proper exercise of power to make local improvements. 
 
 Cited in Carlyle v. Clinton County, 140 111. 516, 30 X. E. 782, holding ordi- 
 nance for levy of special tax for improvement, after completion, void; Chicago & 
 A. R. Co. v. Joliet, 153 111. 654, 39 X. E. 1077, holding council's determination of 
 benefits from local improvement conclusive. 
 Construction of words in statute. 
 
 Cited in Langlois v. Cameron, 201 111. 306, 66 N. E. 332, and Bloomington v. 
 Reeves, 177 111. 166, 52 X. E. 278, construing "contiguous" to mean "actual or 
 close contact, touching, etc." 
 
1023 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 159 
 
 Amendment. 
 
 Cited in Gilberts v. Rabe, 49 111. App. 420, holding village board has power to 
 amend record of proceedings to conform to facts; People ex rel. Reid v. Zellar, 224 
 111. 413, 79 X. E. 697, holding commissioners of drainage district may properly, 
 amend records to conform to facts, such deficiency therein being caused by over- 
 sight. 
 
 6 L. R. A. 159, NOWLIN v. WHIPPLE, 120 Ind. 596, 22 X. E. 669. 
 It iuli i by prescription. 
 
 Cited in Dyer v. Eldridge, 136 Ind. 658, 36 N. E. 522, holding boundary of 
 lands fixed by line fence acquiesced in for twenty years; Davis v. Cleveland, C. C. 
 & St. L. R, Co. 140 Ind. 470, 39 N. E. 495, holding easement not acquired by use 
 without claim of right or acquiescence of owner of servient estate; Cargar v. Fee, 
 140 Ind. 578, 39 N. E. 93, holding instruction that right of way could be acquired 
 in twenty years, by sufferance of owner, erroneous; Pittsburgh, C. C. & St. L. R> 
 Co. v. Crown Point, 150 Ind. 552, 50 N. E. 741, holding presumption of dedication 
 after public use for thirty years not affected because landowner also used high- 
 way; Baltimore & 0. S. W. R. Co. v. Seymour, 154 Ind. 22, 55 N. E. 953, holding- 
 right of way over railroad property not acquired by use which is neither ex- 
 clusive nor adverse; Mitchell v. Bain, 142 Ind. 607, 42 N. E. 230, holding burden 
 upon owner of land denying prescriptive right by twenty years' enjoyment, to 
 prove that easement over it was under license, indulgence, or special contract; 
 Terre Haute & I. R. Co. v. Zehner, 15 Ind. App. 282, 42 N. E. 756, holding ease- 
 ment cannot be acquired without active interference with dominant owner's legal 
 rights; Xull v. Williamson, 166 Ind. 546, 78 N. E. 76, holding an easement in.: 
 right of way may not be acquired by prescription when such way was opened 
 up by owner for his own use, and to permit access of customers. 
 
 Cited in footnote to Flickinger v. Shaw, 11 L. R. A. 134, which holds vested-" 
 right of way for ditch acquired by its construction under oral agreement. 
 
 Cited in notes (8 L. R. A. 575) on easement and servitude in flowage of water; 
 (8 L. R, A. 617) on what constitutes easement; (10 L. R. A. 484) on right by 
 prescription to use of land of another; (8 L.R.A. (X.S.) 151) on burden of show- 
 ing use upon which easement by prescription is claimed was permissive. 
 
 Distinguished in Pitser v. McCreery, 172 Ind. 674, 88 N. E. 303, holding a con- 
 tinued use by public for required period under a claim of right of private prop- 
 erty as a highway; with intervening interference and dispute of use, but not 
 of right to use becomes an adverse right which ripens into a public highway by- 
 user. 
 Requisites of claim of right. 
 
 Cited in Rennert v. Shirk, 163 Ind. 548, 72 N. E. 546, holding that a "claim of 
 right" in adverse possession may be shown by positive acts of ownership and need 
 not be orally declared; Small v. Binford, 41 Ind. App. 445, 83 N. E. 507, holding 
 a claim of way over land not inconsistent with ownership. 
 Irrevocable license. 
 
 Cited in Ferguson v. Spencer, 127 Ind. 68, 25 X. E. 1035, holding action for 
 damages maintainable for digging up drains constructed under license for valu- 
 able consideration; Buck v. Foster, 147 Ind. 532, 62 Am. St. Rep. 427, 46 N. E. 
 920, holding executed license cannot be revoked without at least placing licensee 
 in statu quo; Steinke v. Bentley. 6 Ind. App. 667, 34 X. E. 97, holding that, 
 executed agreement to reconstruct ditch created easement appurtenant to land: 
 Joseph v. Wild. 146 Ind. 253. 45 X. E. 467, holding executed license to build out- 
 side stairway irrevocable; Indianapolis & C. Traction Co. v. Arlington Teleph. 
 
6 L.R.A. 359] L. R. A. CASES AS AUTHORITIES. 1024 
 
 Co. 47 Ind. App. GG3, 95 N. E. 280, holding that irrevocable easement results from 
 oral license to telephone company to place its lines on private grounds where it 
 expends money in so placing it. 
 
 Cited in footnotes to Pierce v. Cleland, 7 L.R.A. 752, which holds license to use 
 property irrevocable after money expended; Howes v. Barmon, 69 L.R.A. 568, 
 which gives distinction between license and easement. 
 
 Cited in notes ( 10 L. R. A. 487) on effect of executed license; (49 L. R. A. 521) 
 on revocability of license to maintain burden on land after licensee has in- 
 curred expense in creating burden; (31 Am. St. Rep. 718, 719; 33 Am. St. Rep. 
 543 ; 16 Eng. Rul. Cas. 81 ) on revocability of license. 
 
 6 L. R. A. 101, PEOPLE ex rel BROKAW v. HIGHWAY COMES. 130 111. 482, 
 
 22 N. E. 596. 
 Additional remedy. 
 
 Cited in People ex rel. Kocourek v. Chicago, 193 111. 568, 62 N. E. 187, holding 
 existence of another specific legal remedy not a bar to mandamus. 
 Duty to remove obstructions. 
 
 Cited in Jennings v. Scott, 87 111. App. 461, holding it clear duty of highway 
 commissioners to remove obstructions; People ex rel. Bartlett v. Busse, 238 111. 
 600, 28 L.R.A. (N.S.) 250, 87 N. E. 840, on mandamus to compel removal of high- 
 way obstruction by commissioners under specific statutory duty. 
 
 Cited in footnote to Costello v. State, 35 L.R.A. 303, which holds permanent 
 appropriation of part of sidewalk for fruit stand indictable nuisance. 
 
 Cited in note (39 L. R. A. 661) on municipal power over nuisances affecting 
 highways and waters. 
 
 Distinguished in People ex rel. Dyett v. McMurray, 27 Colo. 280, 61 Pac. 226, 
 holding abutting owner cannot by mandamus compel city council to remove rail- 
 way tracks from street. 
 Construction of words "may" and "shall." 
 
 Cited in Rothschild v. New York L. Ins. Co. 97 111. App. 553, holding words 
 "may" and "shall" should be construed to give expression to legislature's inten- 
 tion; Doane v. Omaha, 58 Neb. 817, 80 N. W. 54, construing "may," in ordinance 
 directing service of notice, as "must;" McLeod v. Scott, 21 Or. 110, 26 Pac. 1061, 
 construing "may," in statute for issuing liquor licenses, to mean "must;" Binder 
 v. Longhorst, 234 111. 587, 85 N. E. 400, holding that in drainage act providing 
 that commissioners "may" do certain acts to protect land owners of the district 
 from floods the word "may" will be construed as meaning "shall" imposing a 
 positive duty; Newcomb v. Champaign County, 145 111. App. 562, construing 
 "may" to mean "shall" or "must" in statute relating to commencement of ac- 
 tions against counties; Jones v. Madison County, 137 N. C. 592, 50 S. E. 291, 
 holding that act "authorizing and empowering" county to issue bonds to fund 
 indebtedness is mandatory; Re License to Practice Law, 67 W. Va. 222, 67 S. E. 
 597, holding that word "may" in statute authorizing granting of license to prac- 
 tice law is to be construed in permissive sense and not as synonomous with word 
 "shall;" Equitable Life Assur. Soc. v. Host, 124 Wis. 672, 102 N. W. 579, 4 A. 
 & E. Ann. Cas. 413, construing "may" with respect to distribution of accumula- 
 tions as conferring discretion; and "shall" with respect to protection of policy 
 holders as imposing an imperative duty. 
 
 Cited in notes (10 L. R. A. 499) on construction of "may" and "shall" in 
 statute; (12 L. R. A. 355) on construction of words "may," "shall," and "must;" 
 (21 L. R. A. 581) on discretion in granting liquor licenses implied from statutory 
 
1025 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 164 
 
 construction; (5 L.R.A. (N.S.) 342) on "may" in constitutional or statutory pro- 
 vision as mandatory. 
 
 Distinguished in Northwestern Traveling Men's Asso. v. Crawford, 126 111. 
 App. 480, holding "may" does not mean "shall" nor is it so construed in private 
 contracts. 
 Discretionary powers. 
 
 Cited in People ex rel. Corey v. Highway Comrs. 158 111. 208, 41 N. E. 1105, 
 holding discretion of highway commissioners, if abused, controllable by manda- 
 mus; Peotone & M. Union Drainage Dist. No. 1 v. Adams, 163 111. 432, 45 X. E. 
 266, Affirming 61 111. App. 442, holding discretion of commissioners as to details of 
 their work not a bar to mandamus; People ex rel. Corey v. Highway Comrs. 53 
 111. App. 448, affirming judgment refusing mandamus where duty of public officer 
 was discretionary. 
 Right to mandamus. 
 
 Cited in Buckley v. Eisendrath, 58 111. App. 366; Hunt v. Highway Comrs. 43 
 111. App. 283; North v. University of Illinois Trustees, 137 111. 302, 27 N. E. 54, 
 holding mandamus writ should only be issued in clear case; People ex rel. 
 Akin v. Kipley, 171 111. 91, 41 L. R. A. 791, 49 N. E. 229, holding mandamus 
 will lie to enforce public duty without showing demand and refusal ; State ex rel. 
 Schermerhorn v. McCann, 107 Wis. 352, 83 N. W. 647, holding mandamus to 
 remove obstructions will not lie, where question whether road is highway is 
 doubtful; Harrison v. People, 125 111. App. 182, holding mandamus to lie on 
 refusal of mayor to grant license the applicant having complied with all the 
 statutory conditions to the right of a grant. 
 
 Cited in footnotes to State ex rel. Fleming v. Crawford, 14 L. R. A. 253, which 
 grants mandamus to compel Secretary of State to seal appointment of United 
 States Senator; People ex rel. Daley v. Rice, 14 L. R. A. 644, which authorizes 
 mandamus to compel canvassing board to disregard illegal return. 
 
 Cited in note (11 L. R. A. 763) on mandamus to control executive discretion. 
 Rules of construction. 
 
 Cited in note (10 L. R. A. 841) on rules of construction. 
 
 6 L. R. A. 164, SCHNEIDER v. TURNER, 130 111. 28, 22 N. E. 497. 
 Acts on mi m l>! i nu in options. 
 
 Cited in Booth v. Illinois, 184 U. S. 427, 46 L. ed. 625, 22 Sup. Ct. Rep. 425, 
 sustaining act prohibiting future operations in grain stock commodities ; Booth 
 v. People, 186 111. 48, 50 L. R. A. 763, footnote p. 762, 78 Am. St. Rep. 229. 57 N. 
 E. 798, upholding act against gambling in grain and commodities; Kruse v. Ken- 
 nett, 69 111. App. 571, holding penal statute against gambling at cards cannot be 
 extended to gambling options on grain; Peterson v. Currier, 62 111. App. 169, 
 holding bonds a commodity within statute against gambling contracts. 
 What are grumbling contracts. 
 
 Cited in Richter v. Frank, 41 Fed. 861, holding contract of sale of stocks with 
 option to purchaser to resell not gambling contract; Clews v. Jamieson, 182 U. S. 
 494. 45 L. ed. 1198, 21 Sup. Ct. Rep. 845, Reversing 38 C. C. A. 481, 96 Fed. 654, 
 upholding sale of stock not owned at time; Champlin v. Smith, 164 Pa. 488, 30 
 Atl. 447, sustaining purchases and sales of grain by broker, though none actually 
 delivered because broker ordered to sell before time for delivery; Ubben v. Bin- 
 nian, 78 111. App. 334, holding void a contract of sale of stock with option to re- 
 purchase within specified time; Schlee v. Guckenheimer, 179 111. 596, 54 N. E. 302. 
 Reversing 76 111. App. 686, upholding offer to sell, to be accepted within certain 
 time; Kerting v. Hilton, 51 111. App. 439, holding privilege to buy plant, but no 
 L.R.A. Au. Vol. I. 65. 
 
6 L.R.A. 164] L. R. A. CASES AS AUTHORITIES. 1026 
 
 promise to buy it, void; Wolsey v. Xeeley. 62 111. App. 149, holding contract giving 
 purchaser option to resell stock at end of three years void; Bensinger v. Kantzler, 
 112 111. App. 297, and Locke v. Towler, 41 111. App. 70, holding mere option to 
 sell stock at future time void; Corcoran v. Lehigh & F. Coal Co. 37 111. App. 580, 
 holding agreement to, deliver coal if required at future time void ; Minnesota 
 Lumber Co. v. Whitebreast Coal Co. 160 111. 98, 31 L. R. A. 534, 43 X. E. 774, 
 Reversing 56 111. App. 257, holding privilege of ordering any quantity of coal 
 not in excess of certain amount not illegal option: Waite v. Frank, 14 S. D. 631, 
 86 X. W. 645, holding purchases and sales of grain, without intention to receive 
 or deliver same, void; Jamieson v. Wallace, 167 111. 396, 59 Am. St. Rep. 302, 
 47 X. E. 762. holding purchases of stock to be gambling contracts when amounts 
 purchased far in excess of principal's capital; Samuels v. Oliver, 130 111. 85, 22 N. 
 E. 499, holding that money used by broker to corner grain cannot be recovered ; 
 Pope v. Hanke, 155 111. 621, 28 L. R. A. 570, 40 X. E. 839, holding notes given 
 for purchases of grain, without intending delivery, void; Watte v. Costello, 40 111. 
 App. 310, holding contract for sale and purchase of grain, with option to deliver 
 and receive or not, void; Christie Grain & Stock Co. v. Chicago Bd. of Trade, 61 
 C. C. A. 17, 125 Fed. 167, holding equity will not protect property right in stock 
 quotations based on transactions not intending actual future delivery; Kantzler 
 v. Benzinger, 214 111. 597, 73 N. E. 874, on contract for sale of stock if "taken on 
 or before" a "certain future day;" Dunbar v. Armstrong, 115 111. App. 551; 
 R. E. Pratt & Co. v. Ashmore, 224 111. 591, 79 N. E. 952, holding void, contracts 
 for purchase or sale of commodities with the understanding that actual deliver- 
 ies are not to be made but adjustment to be made by cash for differences in mar- 
 ket; Bates v. Woods, 225 111. 332, 80 N. E. 84, Reversing 126 111. App. 184, hold- 
 ing contract was an "option" contract on futures and void; Xash-Wright Co. v. 
 Wright, 156 111. App. 260, holding that mutual gambling intent must exist in 
 order to make contract for purchase and sale of grain gambling in nature and 
 illegal; Wars v. Pearsons, 98 C. C. A. 364, 173 Fed. 881, holding transactions com- 
 monly called "puts and calls" to be in violation of statute prohibiting option for 
 future sale or purchase and delivery. 
 
 Distinguished in Smith v. Preston, 82 111. App. 293, holding agreement to 
 furnish as much of patented article as other party wants, in consideration of ex- 
 clusive right to manufacture and sell, not option; Seymour v. Howard, 51 111. 
 App. 386, holding option became contract by not having been withdrawn before ac- 
 ceptance; Wolf v. National Bank, 178 111. 94, 52 N. E. 896, Reversing 77 111. 
 App. 332, upholding sale of bonds under agreement by seller to repurchase at sell- 
 ing price, with interest, at specified time. 
 Construction of words. 
 
 Cited in Corn Exch. Xat. Bank. v. Jansen, 70 Neb. 583, 97 N. W. 814, on parol 
 evidence to impeach consideration recited in written instrument. 
 
 Cited in notes (17 L.R.A. 274) on parol evidence to vary, add to, or alter writ- 
 ten contract; (21 Am. St. Rep. 122) on parol evidence as to writing. 
 
 Distinguished in Bryden v. Northrup, 58 111. App. 235, holding injunction will 
 lie for use as dramshop of premises demised for "studio;" Gibbs v. People's Nat. 
 Bank, 198 111. 311, 64 N. E. 1060, construing word "net" as expressing its ordi- 
 nary and usual meaning. 
 
 6 L. R, A. 167, CAMPBELL v. CAMPBELL, 130 111. 466, 22 N. E. 620. 
 
 Second appeal in 138 111. 613, 28 X. E. 1080. 
 Interest of person named as executor. 
 
 Cited in Bardell v. Brad}-, 172 111. 423, 50 N. E. 124, holding executor proper 
 party to bill to contest will. 
 
1027 L. E. A. CASES AS AUTHORITIES. [6 L.R.A. 167 
 
 Presumption of competency of witness. 
 
 Cited in Boyd v. McConnell, 209 111. 398, 70 X. E. 649, holding burden is on 
 contestant of will to show incompetency of attesting witnesses to testify; South- 
 ern Collegiate Inst. v. Avery, 157 111. App. 570, holding that burden is upon one 
 who objects to competency of witness to state and prove ground of objection. 
 Interest necessary to disqualify witness. 
 
 Cited in Christiansen v. Dunham Towing & Wrecking Co. 75 111. App. 274, hold- 
 ing witness should not be excluded where his interest is doubtful; Wetzel v. Fire- 
 baugh, 251 111. 196, 95 X. E. 1085, holding that test of interest which determines 
 competency of witness in will contest, is whether he will gain or lose as result of 
 suit. 
 
 Cited in note (38 L.R.A.(N.S.) 733) on admissibility of declarations of bene- 
 ficiary or executor to show lack of testamentary capacity or undue influence. 
 
 Distinguished in Smith v. Smith, 168 111. 495, 48 X. E. 96, holding executor. 
 after resignation and withdrawal of answer, competent to testify. 
 Nature of estate disposed of. 
 
 Cited in Greene v. Greene, 145 111. 275, 33 X. E. 941, holding that man not able 
 to dispose of large estate may be capable of disposing of small estate. 
 Sonnd mind and memory. 
 
 Cited in Waugh v. Moan. 200 111. 303, 65 X. E. 713, holding word "sane" synoov- 
 mous with "sound miad and memory" in instruction with reference to testa- 
 mentary capacity: Waters v. Waters, 222 111. 33, 113 Am. St. Rep. 359, 78 X. E. 
 1, holding that one not able to take care of business affairs may nevertheless be 
 able to make a valid will; Owen v. Crumbaugh, 228 111. 399, 119 Am. St. Rep. 
 442, 81 X. E. 1044. 10 A. & E. Ann. Cas. 606, holding a person believing in 
 spiritualism may still have that soundness of mind and memory required in the 
 execution of a will: Drum v. Capps, 240 111. 542, 88 X. E. 1020, holding that an- 
 aversion for the prejudice against relatives is not necessarily evidence of lack of 
 testamentary capacity. 
 Tests of testamentary capacity. 
 
 Cited in Petefish v. Becker, 176 111. 454, 52 X. E. 71, holding unsoundness of 
 mind to invalidate will must be such that testator did not know actual objects of 
 his bounty; Graybeal v. Gardner, 146 111. 345, 34 X. E. 528, holding testator need 
 not retain all his vigor of mind and memory to make valid will; Bevelot v. Les- 
 trade, 153 111. 632, 38 X. E. 1056, holding testator has sufficient capacity if, when 
 attention is aroused, his mind acts clearly and with discriminating judgment; 
 Mclntosh v. Moore, 22 Tex. Civ. App. 30, 53 S. W. 611, holding testator only re- 
 quired to know state of his property, scope, meaning, and effect of will; Waugh 
 v. Moan, 200 111. 303, 65 X. E. 713, and Greene v. Greene, 145 111. 274, 33 X. E. 
 941, holding test to be whether testator understood business in which he was 
 engaged and disposition made of his property; Craig v. Southard, 148 111. 45, 35 
 X. E. 361, holding real question for jury to be whether testator, when making 
 will, understood that particular business; Whipple v. Eddy, 161 111. 122, 43 X. 
 E. 789, holding person able to transact ordinary business affairs capable of making 
 a will; Ring v. Lawless, 190 111. 529, 60 X. E. 881, holding mental power and 
 vigor to transact ordinary business not necessarily required to make valid will^ 
 Entwistle v. Meikle, 180 111. 22, 54 X. E. 217, sustaining will where preponderance 
 of evidence showed testator was able to, and did, transact ordinary business; 
 Dillman v. McDaniel, 222 111. 288, 113 Am. St. Rep. 400, 78 X. E. 591, holding in> 
 issue of capacity the test is whether he had the capacity to execute the will in 
 question not as to his capacity in general: Healea v. Keenan, 244 111. 489, 91 
 N. E. 646, to the point that man may be incompetent to make will of one kind 
 
6 L.R.A. 167] L. R. A. CASES AS AUTHORITIES. 1028 
 
 because of nature and extent of state, but competent to make one less compli- 
 cated; McCoy v. Sheehy, 252 111. 513, 96 N. E. 1069, holding that it is not neces- 
 sary that testator should be in full possession of all his reasoning faculties, nor 
 does mere fact that he was about to die when will was made invalidate it. 
 
 Cited in notes (18 L.R.A. (N.S.) 100) on power of one lacking testamentary 
 capacity to revoke will; (27 L.R.A. (N.S.) 10, 41) on what is testamentary 
 capacity. 
 Capacity to make valid deed. 
 
 Cited in Francis v. Wilkinson, 147 111. 380, 35 N. E. 150, holding grantor, when 
 making deed, must be able to understand the transaction. 
 
 6 L. R. A. 172, ROLFE v. THE BOSKENNA BAY, 40 Fed. 91. 
 
 Followed without discussion in Saitta v. The Boskenna Bay, 40 Fed. 96. 
 Ship's liability for discharged cargo. 
 
 Cited in Smith v. Britain S. S. Co. 123 Fed. 177, denying ship's liability for 
 injury to cargo which owner leaves for several days on wharf, where bill of lad- 
 ing provides that liability shall cease on unloading. 
 Custom as affecting delivery of cargo. 
 
 Cited in Pickering v. Weld, 159 Mass. 524, 54 N. E. 1080, holding custom may 
 regulate time, place, and manner of delivery of cargo, in absence of express 
 contract. 
 
 L. R, A. 176, DAWSON v. POGUE, 18 Or. 94, 22 Pac. 637, 643. 
 Partnership, what constitutes. 
 
 Cited in Willis v. Crawford, 38 Or. 525, 53 L. R. A. 906, 63 Pac. 985, holding 
 two lawyers agreeing to conduct certain litigation, dividing compensation, not 
 special partners. 
 
 Cited in note (115 Am. St. Rep. 412) on what constitutes a partnership. 
 Error on trial not presumed. 
 
 Cited in Wachsmuth v. Routledge, 36 Or. 311, 59 Pac. 454, holding error not 
 appearing in record not presumed. 
 Assignment of chose in action. 
 
 Cited in Gregoire v. Rourke, 28 Or. 277, 42 Pac. 996, holding consideration un- 
 necessary to support assignment of chose in action; First Xat. Bank v. Miller, 48 
 Or. 592, 87 Pac. 892, holding consideration not necessary to support assignment 
 of chose in action, as between the parties. 
 
 6 L. R. A. 187, DOOLITTLE v. DOOLITTLE, 78 Iowa, 691, 43 N. W. 616. 
 Grounds for divorce. 
 
 Cited in Day v. Day, 84 Iowa, 225, 50 N. W. 979, holding failure to provide 
 medical treatment, and permitting members of household to abuse and insult 
 wife, justifies divorce; Berry v. Berry, 115 Iowa, 545, 88 N. W. 1075, holding use 
 of violent and abusive language, making wife ill, justifies divorce; Ryan v. Ryan, 
 30 Or. 228, 47 Pac. 101, holding habitual intoxication, with vile and abusive 
 language, ground for divorce; Ennis v. Ennis, 92 Iowa, 115, (50 N. W. 228, holding 
 conduct attributable to weakness or disease of mind not inhuman treatment jus- 
 tifying divorce; Williams v. Williams, 1 Colo. App. 287, 28 Pac. 726, holding 
 behavior not endangering life, limb, or health not ground for divorce; Craig v. 
 Craig, 129 Iowa, 195, 2 L.R.A.(N.S.) 671, 105 N. W. 446, holding semi-public 
 declaration of love and paying of exclusive attention to another woman in the 
 home of defendant's family grounds for divorce as cruel and inhuman treat- 
 ment; Kupka v. Kupka, 132 Iowa, 192, 109 N. W. 610, holding where wife after 
 
3029 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 190 
 
 birth of child left home of her husband for medical treatment, and because of op- 
 eration was detained from home during which time she frequently wrote affection- 
 ate letters to husband, no intent to desert on her part appears. 
 
 Cited in footnotes to Robinson v. Robinson, 15 L. R. A. 121, which holds prac- 
 tice of Christian Science by wife ground for divorce by husband; Barnes v. Barnes, 
 16 L. R. A. 660, which holds mental suffering, without affecting bodily health, 
 ground for divorce; Maddox v. Maddox, 52 L. R, A. 628, which denies right to 
 divorce for cruelty in failure to provide suitable dwelling house, clothing, and 
 food; Tirrell v. Tirrell, 47 L. R. A. 750, which holds mere payment of allowance 
 to abandoned wife under order of court not prevent divorce for desertion; Ring 
 v. Ring, 62 L.R.A. 878, which holds habitual and intemperate use of morphine 
 not cruel treatment entitling other spouse to divorce. 
 
 Cited in notes (19 Am. St. Rep. 433) on ground for divorce; (65 Am. St. Rep. 
 80) on cruelty as ground for divorce: (18 L.R.A. (N.S.) 314) on making charges 
 of adultery as ground for divorce. 
 Allowance of counsel fees to wife on appeal. 
 
 Cited in Simpson v. Simpson, 91 Iowa, 242, 59 N. W. 22, holding woman in 
 divorce action entitled, as appellee, to allowance of attorney's fees; Halsted v. 
 Halsted, 11 Misc. 593, 32 N. Y. Supp, 1080, holding alimony and counsel fees 
 allowable in court's discretion to wife pending her appeal. 
 Allowance of BTOSS sum to divorced wife. 
 
 Cited in footnote to Hooper v. Hooper, 44 L. R. A. 725, which sustains allow- 
 ance of gross sum from husband's estate in addition to monthly alimony. 
 Allowance of temporary support. 
 
 Cited in Baker v. Oughton, 130 Iowa, 39, 106 X. W. 272, holding husband 
 who drives wife from home impliedly binds himself to provide for her regard- 
 less of cause, hence justification cannot be shown against claim for necessaries. 
 
 6 L. R. A. 190. DARTMOUTH SPINNING CO. v. ACHARD, 84 Ga. 14, 10 S. 
 
 E. 449. 
 N <!.. i it ciioo : servant's assumption of risk. 
 
 Followed in Lucas v. Southern R. Co. 1 Ga. App. 813, 57 S. E. 1041, holding 
 car inspector assumes risk from improper loading of car where it is part of his 
 duty to see that cars are properly loaded; Redding v. Central Georgia Teleph. Co. 
 6 Ga. App. 832, 65 S. E. 1068. holding employee for inspection as a rule assumes 
 risk of all dangers incident to making inspection. 
 
 Approved in White v. Thomasville Light & P. Co. 151 N. C. 358, 66 S. E. 210, 
 holding an experienced and properly intrusted repairer furnished with proper ap- 
 pliances assumes risks incident to his duty of repairing defective machines and 
 appliances. 
 
 Cited in Green v. Babcock Bros. Lumber Co. 130 Ga. 469, 60 S. E. 1062, holding 
 that rule as to furnishing safe machinery is not applicable, where servant is em- 
 ployed to repair the machinery; Huey v. Atlanta, 8 Ga. App. 604, 70 S. E. 71, 
 to the point that one who is employed to repair defective machinery cannot com- 
 plain because safe machinery is not furnished him; Pressly v. Dover Yarn Mills, 
 138 X. C. 418, 51 S. E. 69, holding that where injured person is not an expert, 
 and is employed for certain minor repairs, he does not assume risk caused by 
 machine needing repairs of which he has no duties in connection; Mathis v. At- 
 lantic Coast Line R. Co. 144 X. C. 164, 56 S. E. 864, holding person sent to re- 
 pair water spout not entitled to recovery where knowing of its rotten condition 
 he pulled it down causing injury; Lane v. Xorth Carolina R. Co. 154 X. C. 96, 
 69 S. E. 780, holding that employee whose duty is to repair cars cannot recover 
 
6 L.R.A. 190] L. R. A. CASES AS AUTHORITIES. 1030 
 
 for injury caused by car door swinging loose and down at one end, when he is 
 furnished with proper appliances, and when its repair would have prevented such 
 falling; Reed v. Moore, 25 L.R.A. (N.S.) 334, 82 C. C. A. 434, 153 Fed. 36.1, 
 holding general repairer assumes risk from disordered condition of machinery 
 other than that immediate piece on which he is working at time of accident. 
 
 Cited in footnote to Stager v. Troy Laundry Co. 53 L. R. A. 459, which holds 
 risk of hand passing under guard rails into rollers not assumed as matter of 
 law by servant operating mangle in laundry. 
 
 Cited in notes (47 L.R.A. 173) on volenti non fit injiiria as defense to ac- 
 tions by injured servants; (98 Am. St. Rep. 303) on liability to servant for in- 
 juries due to defective machinery and appliances. 
 
 6 L. R. A. 191, WASSON v. LAMB, 120 Ind. 514, 16 Am. St. Rep. 342, 22 N. E. 
 
 729. 
 Nature of bank deposits. 
 
 Cited in Union Nat. Bank v. Citizens' Bank, 153 Ind. 52, 54 N. E. 97, holding 
 bank remitting proceeds of note sent it for collection by draft not paid because 
 of drawer's insolvency, mere debtor, and not trustee; Winfield Nat. Bank v. 
 McWilliams, 9 Okla. 508, 60 Pac. 229, holding collecting bank entitled to pro- 
 ceeds of check taken for value from correspondent bank failing before collection; 
 Dille v. White, 132 Iowa, 353,. 10 L.R.A. 547, 109 N. W. 909 (dissenting opin- 
 ion), on demanding and receiving a credit for paper deposited as being equiva- 
 lent to a cash deposit; Sawyer v. Stilson, 146 Iowa, 715, 125 N. W. 822, holding 
 that money received by bank from customers to pay taxes amounted to deposit by 
 county treasurer where he at bank's request sent receipt to bank and was credited 
 with amount. 
 
 Cited in notes (24 L.R.A. 737) as to entries in bank book as contracts: 
 (7 L.R.A. (N.S. ) 698) on title of bank to check on another, credited to depositor; 
 (37 L.R.A. (N.S.) -1187) on right of bank to impeach source of deposit as against 
 holder of check; (47 Am. St. Rep. 390) on effect of check indorsed "for de- 
 posit;" (86 Am. St. Rep. 781) on title of bank to money deposited with or 
 collected by it; (86 Am. St. Rep. 796) on right to recover money deposited with 
 or collected by bank upon its insolvency ; ( 105 Am. St. Rep. 745 ) on duties of 
 savings banks toward depositors; (134 Am. St. Rep. 1023) on effect of balances 
 struck in pass books; (3 Eng. Rul. Cas. 762) on check as equitable assignment 
 and duty of bank to pay same. 
 Payment with commercial paper. 
 
 Cited in Dille v. White, 132 Iowa, 350, 10 L.R.A. (N.S.) 543, 109 N. W. 909 
 (dissenting opinion), on the acceptance of commercial paper as being payment. 
 
 Cited in note (35 L.R.A. (N.S.) 83) on payment by commercial paper 
 
 6 L. R. A. 193, LOUISVILLE, N. A. & C. R. CO. v. LUCAS, 119 Ind. 583. 21 
 N. E. 968. 
 
 Judgment in favor of Pennsylvania Company reversed, with instructions to ren- 
 der judgment on special verdict against both defendants, in Lucas v. Pennsylva- 
 nia Co. 120 Ind. 205, 16 Am. St. Rep. 323, 21 N. E. 972. 
 Carrier's duty to provide suitable platform and approach. 
 
 Cited in Toledo, St. L. & K. C. R. Co. v. Wingate, 143 Ind. 131, 37 N. E. 274, 
 holding railway liable to passenger injured in attempt to alight, where plat- 
 form 26 inches below level of car steps; Indianapolis Street R. Co. v. Robinson, 
 157 Ind. 420, 61 N. E. 936, holding company liable for injury due to stepping 
 on defective board in platform, where crowd prevented party from seeing it; 
 Pennsylvania Co. v. Marion, 123 Ind. 418, 7 L. R. A. 690, 23 N. E. 973, 18 
 
1031 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 193 
 
 Am. St. Rep. 330, holding company liable for injury sustained by passenger on 
 alighting from slowly moving train, where accident caused by defect in plat- 
 form; Louisville, N. A. & C. R. Co. v. Treadway, 142 Ind. 482, 143 Ind. 697, 
 40 X. E. 807, holding railway liable for injury due to unprotected and unlighted 
 platform, at 2 A. M. to passenger waiting for train; New York, C. & St. L. 
 R. Co. v. Mushrush, 11 Iiid. App. 195, 37 X. E. 954, holding railway liable for 
 death of boy stumbling over concealed obstructions on platform and falling under 
 train; Barker v. Ohio River R, Co. 51 W. Va. 428, 90 Am. St. Rep. 808, 41 S. 
 E. 148. holding railway liable to party on platform, injured by stepping back- 
 wards into hole left by washed out plank; Illinois C. R. Co. v. Cheek, 152 Ind. 
 670, 53 N. E. 641, holding railway liable for injury resulting from attempt to 
 board train, where no platform, and steps 3 feet from ground, on assurance of 
 assistance by carrier's servants; Alabama G. S. R. Co. v. Godfrey, 156 Ala. 215, 
 130 Am. St. Rep. 76, 47 So. 185. holding duty of railroad company as a carrier 
 oeases as a general rule when the passenger has left the depot grounds or has 
 had a reasonable time in which to do so; Harris v. Pittsburgh, C. C. & St. L. R. 
 Co. 32 Ind. App. 602, 70 N. E. 407, holding it to be duty of carrier to provide 
 safe place to alight and not to allow accumulation of ice on platform; Cleveland, 
 C. C. & St. L. R. Co. v. Harvey, 45 Ind. App. 157, 90 N. E. 318, holding that rail- 
 road selling return trip tickets to small flag station is required to light its plat- 
 form for reasonable time before arrival of train; Wood v. Metropolitan Street 
 R. Co. 181 Mo. 443, 81 S. W. 152, holding person in transferring using platform 
 provided for that purpose is entitled to care due from company in its capacity 
 as a carrier the person having a through ticket; Abbot v. Oregon R. Co. 46 Or. 
 560, 1 L.R.A. (X.S.) 856, 114 Am. St. Rep. 885, 80 Pac. 1012, 7 A. & E. Ann. 
 Cas. 961, holding carrier bound to keep platforms, approaches and station 
 grounds properly lighted for a reasonable length of time preceding arrival and 
 succeeding departure of scheduled trains ; Great Falls & O. D. R. Co. v. Hill. 34 
 App. D. C. 312, holding it to be duty of carrier to exercise highest practical 
 degree of care for safety of passengers not only as to carriage but also in respect 
 of means for getting on and off its cars. 
 
 Cited in footnotes to Herrman v. Great Xorthern R. Co. 57 L. R. A. 390. 
 which holds railroad company liable for injury to passenger from unsafe con- 
 dition of depot premises leased of union depot company or its receiver; Jordan 
 v. Xew York. X. H. & H. R. Co. 32 L. R. A. 101. which holds carrier liable for 
 dangerous hole in floor of unlighted toilet room in depot : Redigan v. Boston & 
 M. R. Co. 14 L. R. A. 276. which denies recovery to licensee falling through 
 open trap door in station platform; Sargent v. St. Louis & S. F. R. Co. 19 L. 
 R, A. 460, which holds carrier not required to have gas or electric lights on 
 station platform. 
 
 Cited in notes (7 L. R. A. Ill) on duty of railroads to furnish safe stations 
 and platforms for use of passengers; (16 L. R. A. 593) on duty of carrier to 
 maintain safe approaches beyond its own premises; (7 L. R. A. 688) on means 
 of approach and departure; (20 L. R. A. 527) as to whom railroads owe duty of 
 keeping station platforms safe; (33 L.R.A. (X.S.) 859) on degree of care toward 
 passenger at station. 
 
 Distinguished in Brooks v. Pittsburgh, C. C. & St. L. R. Co. 158 Ind. 67, 62 
 N. E. 694, denying railroad's liability for injury to one alighting from another 
 company's train in switching yard. 
 
 Disapproved in Pere Marquette R. Co. v. Strange. 171 Ind. 168, 170, 20 L.R.A. 
 I X.S.) 1048, 84 X. E. 819, holding railway company not under the highest de- 
 gree of care in maintaining platforms, waiting rooms and appurtenances not 
 directly employed in transportation of passengers. 
 
6 L.R.A. 193] L. R. A. CASES AS AUTHORITIES. 1032 
 
 Degrree of care required of carrier. 
 
 Cited in Kentucky & I. Bridge Co. v. Quinkert, 2 Ind. App. 248, 28 N. E. 
 338, holding carrier of passengers bound to carry safely "so far as human skill 
 and foresight can go;" Hammond, W. & E. C. Electric R. Co. v. Spyzchalski, 
 17 Ind. App. 12, 46 N. E. 47, and Prothero v. Citizens' Street R. Co. 134 Ind. 
 439. 33 N. E. 765, holding carrier bound to use "highest degree of care, dili- 
 gence, vigilance, and skill" in proportion to degree of peril of situation; Citi- 
 zens' Street R. Co. v. Merl, 134 Ind. 611, 33 N. E. 1014, holding passenger en- 
 titled to damages for injury sustained while attempting to board transfer car, 
 by reason of wilful collision therewith of approaching car; Citizens' Street R. 
 Co. v. Merl, 26 Ind. App. 291, 59 N. E. 491, holding carrier liable where injury 
 caused by collision with trolley poles beside track by reason of starting car be- 
 fore passenger found seat; Indiana Union Traction Co. v. Thomas, 44 Ind. App. 
 472, 88 N. E. 356, holding that instruction that railroad is bound to use highest 
 degree of care for passenger's safety, provided they are not guilty of contribu- 
 tory negligence is not improper where jury was told railroad was not insurer. 
 
 Cited in notes (20 L. R. A. 523) on measure of care which carrier must ex- 
 ercise to keep its platforms and approaches safe; (11 L. R. A. 720) on duty of 
 railroad companies to care for safety of passengers; (5 Eng. Rul. Cas. 462) on 
 extent of duty to secure safety of passengers. 
 Proximate cause. 
 
 Cited in Chicago & E. I. R. Co. v. Grimm, 25 Ind. App. 497, 57 N. E. 640, 
 holding railway liable for injury to passenger in wreck caused by running over 
 horse, where engine negligently placed at back of train and light caboose in front: 
 Coy v. Indianapolis Gas Co. 146 Ind. 665, 36 L. R. A. 538, 46 N. E. 17, holding 
 failure of gas company to supply gas during wintertime, according to contract, 
 proximate cause of death of children from relapse in sickness by reason of 
 cold; Grimes v. Louisville, N. A. & C. R. Co. 3 Ind. App. 579, 30 N. E. 200, 
 holding railway liable for death of runaway horse killed when attempting to 
 jump between cars unlawfully obstructing street; Eureka Block Coal Co. v. 
 Wells, 29 Ind. App. 7, 94 Am. St. Rep. 259, 61 N. E. 236, holding negligence of 
 mine boss in permitting blasting where wall was dangerously thin proximate 
 cause of injury to employee on other side: Indianapolis Street R. Co. v. Schmidt, 
 163 Ind. 364, 71 N. E. 201, holding complaint sufficiently alleges negligence of 
 defendant as proximate cause where negligent act is set out followed by facts 
 in the natural consequence; Indianapolis Street R. Co. v. Schmidt, 35 Ind. App. 
 210. 71 N. E. 663, holding company liable where plaintiff negligently crosses track 
 ahead of car but the motorman having full control or means thereof under 
 the circumstances negligently runs into him; Logansport v. Smith, 47 Ind. App. 
 73, 93 N. E. 883, holding that city is liable for negligence in constructing its 
 wires for electric lights although railroad was also guilty of negligence con- 
 tributing to injury; Pacific Teleph. & Teleg. Co. v. Parmenter, 95 C. C. A. 382, 
 370 Fed. 144, holding defendant liable for injury caused by the felling of a tree 
 against a wire of defendant attached to a rotten pole unsupported by guy wire. 
 the negligence of person felling tree being concurrent with that of defendant. 
 
 Cited in footnotes to Vallo v. United States Exp. Co. 14 L. R. A. 743, which 
 holds throwing trunk from delivery wagon in highway proximate cause of trav- 
 eler falling over another trunk; Southwestern Teleg. & Teleph. Co. v. Robinson, 
 16 L. R. A. 545. which holds telephone company liable for injury by electricity 
 generated by thunder storm in low-hanging telephone wire; Schumaker v. St. 
 Paul & D. R. Co. 12 L. R. A. 257, which holds master's neglect to furnish trans- 
 portation proximate cause of injury received in walking to find shelter; Mc- 
 Kenna v. Baessler, 17 L. R. A. 310, which holds original fire proximate cause of 
 
1033 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 193 
 
 destruction of property by back fire; Chicago, St. P. M. & O. R. Co. v. Elliott, 
 20 L. R. A. 582, as to proximate cause of injury to shipper while stepping from 
 stock car to caboose; Harrison v. Detroit, L. & N. R. Co. 7 L. R. A. 623, which 
 liolds proximate cause of injury to servant question for jury; Wood v. Pennsyl- 
 vania R. Co. 35 L. R. A. 199, which holds failure to give warning of approach 
 of train not proximate cause of injury to one struck by body of other person 
 hit by train; Western R. Co. v. Mutch, 21 L. R. A. 316, which holds excessive 
 speed not proximate cause of death of boy attempting to catch on train; Mc- 
 Clain v. Garden Grove, 12 L. R. A. 482, which holds narrowness of bridge and 
 insufficiency of railings not proximate cause of injury from horse falling from 
 disease or choking. 
 
 Cited in notes (13 L. R. A. 733) on proximate and remote cause of damage; 
 (12 L. R. A. 282, 283) on concurrent or co-operating causes of injury; (8 L. R. 
 A. 83) on loss or injury attributed to proximate cause; (13 L. R. A. 193) on 
 responsibility for proximate or direct consequences of negligence; (17 L. R. A. 
 35) on effect of concurring negligence of third person on liability of one sued 
 for negligently causing injury; (8 L. R; A. 84) on intervening agency breaking 
 causal connection; (8 L. R. A. 82) on liability for injuries produced by negli- 
 gence; (7 L.R.A. (N.S.) 1178) on what injuries deemed proximate result of dis- 
 charging passenger at wrong or improper place. 
 
 Distinguished in Reid v. Evansville & T. H. R. Co. 10 Ind. App. 396, 53 Am. 
 St. Rep. 391, 35 N. E. 703, holding carrier not liable for loss of goods de- 
 stroyed by fire not due to its negligence, merely by reason of delay in forward- 
 ing car; Davis v. Williams, 4 Ind. App. 491, 31 N. E. 204, holding owner of 
 dead dog not liable for injuries caused in accident due to fright of horse at dog's 
 carcass in road, where placed there by third party without owner's knowledge 
 or consent. 
 Interviewing agency. 
 
 Cited in Farrell v. Eastern Machinery Co. 77 Conn. 492, 68 L.R.A. 242, 107 
 Am. St. Rep. 45, 59 Atl. 611, holding that intervening negligence of competent 
 employee does not relieve master from liability for failure to supply safe place 
 to work; Davis v. Mercer Lumber Co. 164 Ind. 423, 73 N. E. 899, holding breach of 
 duty to guard a saw proximate cause of injury to workman though master could 
 not reasonably foresee an injury identical with the one in question, provided in- 
 jury by some kind might be reasonably expected ; Cleveland, C. C. & St. L. R. Co. 
 v. Patterson, 37 Ind. App. 623, 75 N. E. 857, holding wrongdoer not excused be- 
 cause of an outside intervening cause where such intervening cause might rea- 
 sonably have been foreseen. 
 Contributory negligence. 
 
 Cited in McDermott v. Chicago & N. W. R. Co. 82 Wis. 251, 52 X. W. 85, 
 holding question of contributory negligence for jury, where plaintiff attempted 
 to alight upon unstable, badly placed, slippery bench, from train, without as- 
 sistance and aware of danger; Illinois C. R. Co. v. Atwell, 100 111. App. 519, 
 holding employee jumping upon track at order of foreman, to remove hand car 
 from track in front of approaching train, not guilty of contributory negligence; 
 Ohio & M. R. Co. v. Stansbery, 132 Ind. 536, 32 N. E. 218, holding passenger 
 not guilty of contributory negligence in failing to avoid dangers of defective 
 platform, where ignorant thereof and having no cause to suspect existence ; 
 Knauss v. Lake Erie & W. R. Co. 29 Ind. App. 219, 64 X. E. 95, holding com- 
 plaint showing passenger was injured while putting head out of car window, 
 demurrable. 
 
 Cited in footnotes to Tuttle v. Atlantic City R. Co. 54 L. R. A. 582, which 
 authorizes recovery for fall while trying to escape from derailed car; Gannon 
 
6 L.R.A. 193] L. R. A. CASES AS AUTHORITIES. 3034 
 
 v. New York, N. H. & H. R. Co. 43 L. R. A. 833, which holds carrier liable for 
 injury to passenger while impulsively trying to escape from car in which oil 
 lamp caught fire; St. Louis & S. F. R. Co. v. Murray, 16 L. R. A. 787, which 
 requires passenger's prudence in attempting to escape to be judged by appar- 
 ent circumstances; Palmer v. Warren Street R. Co. 63 L.R.A. 507. which hold* 
 passenger not negligent in jumping from moving car to avoid impending colli- 
 sion. 
 
 Cited in notes (11 L. R. A. 131) on test of contributory negligence; (12 L. 
 R. A. 280) on recovery defeated by contributory negligence; (13 L. R. A. 190) 
 on assuming risk to save human life, as contributory negligence; (7 L. R. A. 
 843) on party placed in dilemma by another's fault. 
 Imputed negligence. 
 
 Cited in Consolidated Gas Co. v. Getty, 96 Md. 691, 94 Am. St. Rep. 603, 54 
 Atl. 660, holding policeman's negligence in searching for gas leak with candle 
 not imputable to owner of house damaged by explosion. 
 
 Cited in note (8 L. R. A. 844) on imputing another's negligence to child. 
 Testimony as to probable results of Injury. 
 
 Cited in Pennsylvania Co. v. Frund, 4 Ind. App. 473, 30 N. E. 1116, holding 
 opinion of medical expert as to probable cause or probable results of injury 
 competent; Indianapolis & E. R. Co. v. Bennett, 39 Ind. App. 145, 79 X. E. 389, 
 holding physician qualified as an expert witness, who attended plaintiff immedi- 
 ately after and following injury competent to testify as to what in his opinion 
 was the producing cause of plaintiff's nervousness; Cincinnati, L. & A. Electric 
 Street R. Co. v. Cook, 45 Ind. App. 407, 90 X. E. 1052; Jerome v. United R. Co. 
 155 Mo. App. 207, 134 S. W. 107, holding that physician duly qualified as 
 expert may testify as to probable result of injury. 
 Validity of special verdict. 
 
 Cited in Helewig v. Beckner, 149 Ind. 135, 46 N. E. 644, and Bower v. Bower, 
 146 Ind. 396, 45 N. E. 595, holding omission of statutory formal conclusion does 
 not vitiate special verdict; Evansville & T. H. R. Co. v. Taft, 2 Ind. App. 242, 
 28 X. E. 443, holding verdict not invalidated because after making findings and 
 calling for law applicable to plaintiff it makes further findings before calling 
 for law applicable to defendant. 
 
 Cited in note (15 Am. St. Rep. 752) on sufficiency of verdict. 
 
 6 L. R. A. 198, PERKIXS v. DYER, 71 Md. 421, 18 Atl. 889. 
 Taxes; new promise removing: bar of statute of limitations. 
 
 Cited in Duvall v. Perkins, 77 Md. 591, 26 Atl. 1085, holding promise by life 
 tenant to pay taxes payable by him removes bar of limitation of proceeding 
 against land; Georgetown College v. Perkins, 74 Md. 76, 21 Atl. 551, holding 
 taxpayer's promise to pay taxes removes bar as against judgment creditor 
 claiming surplus proceeds of sale under senior judgment. 
 
 6 L. R. A. 200, MEISWINKEL v. ST. PAUL F. & M. IXS. CO. 75 Wis. 147, 4S 
 
 X. W. 669. 
 Reformation of written instruments. 
 
 Followed in Kruse v. Koelzer, 124 Wis. 540, 102 N. W. 1072, holding evidence 
 warranting reformation of a deed must be clear and convincing that the parties 
 were mutually mistaken and that they intended to make an agreement other 
 than the one evidenced by their writing. 
 
 Cited in Kropp v. Kropp, 97 Wis. 142, 72 N. W. 382, holding clear and con- 
 vincing evidence of mistake in notes and mortgage justifies reformation; Glocke 
 v. Glocke, 113 Wis. 308, 57 L. R. A. 460, 89 N. W. 118, holding clear and satis- 
 
3035 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 204 
 
 factory proof of mutual mistake required to reform deed; Fillingham v. Nichols, 
 108 Wis. 56, 84 X. W. 15, holding clear and convincing evidence required to 
 prove deed, absolute on face, given in trust; Jasper v. Hazen, 4 N. D. 10, 23 L. 
 R. A. 64, 58 X. W. 454, holding clear, convincing, and satisfactory evidence 
 required to prove absolute deed intended as mortgage; Illinois Steel Co. v. Konkel, 
 ]4ti Wis. 566, 131 X. W. 842, holding that deed absolute cannot be shown to 
 create a trust in absence of clear and convincing evidence in writing establishing 
 the fact beyond reasonable controversy. 
 
 Cited in notes (65 Am. St. Rep. 494, 496) on reformation of contracts: (28 
 L.R.A. (X.S.) 917, 921) on reformation for mistake of law as to effect of instru- 
 ment. 
 Terms of policy binding: on mortgagee. 
 
 Cited in Carberry v. German Ins. Co. 86 Wis. 326, 56 N. W. 920, holding 
 mortgagee to whom "lo-7s payable as interest may appear" bound by stipula- 
 tions of policy. 
 
 6 L. R. A. 204, JOHX SPRY LUMBER CO. v. SAULT SAV. BANK, LOAN & 
 
 T. CO. 77 Mich. 199, 18 Am. St. Rep. 396, 43 N. W. 778. 
 
 Mechanic's lien law; constitutionality of statutes giving subcontractor 
 lien. 
 
 Cited in Mellis v. Race. 78 Mich. 81, 43 N. W. 1033; Snell v. Race, 78 Mich. 
 336, 44 X. W. 286; Koepke v. Dyer, 80 Mich. 312, 45 N. W. 143; Preston v. 
 Zekind, 84 Mich. 645, 48 X. W. 180; Kirkwood v. Hoxie, 95 Mich. 64, 35 Am. St. 
 Rep. 549, 54 X. W. 720, holding mechanic's lien law 1887 unconstitutional; 
 Mc-Masters v. West Chester State Normal School, 2 Pa. Dist. R. 759, 10 Lane. 
 L. Rev. 407, 34 W. N. C. 460, and Waters v. Wolf, 162 Pa. 170, 34 W. N. C. 416, 
 42 Am. St. Rep. 815, 29 Atl. 646, holding statute providing that no contract with 
 owner shall defeat right of subcontractor to lien unconstitutional ; Palmer v. 
 Tingle, 55 Ohio St. 445, 45 N. E. 313, holding statute giving subcontractor a 
 lien, not based on contract with owner and without regard to amount due prin- 
 cipal contractor, unconstitutional; Selma Sash, Door & Blind Factory v. Stod- 
 dard, 116 Ala. 254. 22 So. 555, holding statute giving subcontractors a lien, 
 without regard to amount due under contract, if claim presented within thirty 
 days, unconstitutional: Mallory v. LaCrosse Abattoir Co. 80 Wis. 185, 49 N. W. 
 1071 (dissenting opinion), majority holding statute making owner absolutely 
 liable for claims of subcontractors, without regard to contract price, or owner's 
 indebtedness to contractor, valid: Prince v. Neal-Millard Co. 124 Ga. 888, 53 
 S. E. 761, 4 A. & E. Ann. Cas. 615, on the unconstitutionality of statutes giv- 
 ing liens to material men and subcontractors for material or work furnished 
 contractor; Kelly v. Johnson, 251 111. 141, 36 L.R.A. (N.S.) 577, 95 N. E. 1068, 
 holding that section 21 of Mechanic's Lien Law of 1903 providing for subcontract- 
 or's lif.n when original contractor waives all liens, is unconstitutional. 
 
 Cited in notes (20 L.R.A. 565) on constitutionality of statutes giving labor- 
 ers and material men right to lien; (36 L.R.A. (X.S. ) 574) on constitutionality 
 of statute giving mechanic's lien contrary to agreement of contractor. 
 
 Distinguished in Jones v. Great Southern Fireproof Hotel Co. 30 C. C. A. 115, 
 58 U. S. App. 397, 86 Fed. 377, Overruling 79 Fed. 481, holding Ohio statute 
 giving subcontractor lien, without regard to amount due owner, but limited to 
 contract price, in absence of fraud, not unconstitutional; Smith v. Xewbaur, 
 144 Ind. 103, 33 L. R. A. 688, 42 N. E. 40, holding statute giving subcontractors 
 and material men lien upon filing of notice of intention to claim lien within 
 sixty days after labor or material furnished not unconstitutional ; Smalley v. 
 Gearing, 121 Mich. 196, 79 N. W. 1114, holding statute authorizing owner to 
 
6 L.R.A. 204] L. R. A. CASES AS AUTHORITIES. 1036 
 
 withhold amounts due subcontractors, and making him liable in case of pay- 
 ment in disregard of sworn statement of contractor, not unconstitutional. 
 Uiiilits of subcontractor measured by those of principal contractor. 
 
 Cited in Cudworth v. Bostwick, 69 N. H. 537, 45 Atl. 408, holding, under 
 statute giving subcontractor "same lien" as provided for contractor, lien of sub- 
 contractor is limited by what principal contractor could enforce against property. 
 Limit* of police power. 
 
 Cited in Re Morgan, 26 Colo. 426, 47 L. R. A. 57, 77 Am. St. Rep. 269, 58 
 Pac. 1071, holding statute restricting employment of working men in smelters 
 for longer period than eight hours per day not within police power of state. 
 Partial Invalidity of statute. 
 
 Cited in People v. De Blaay, 137 Mich. 404, 100 N. W. 598, 4 A. & E. Ann. Gas. 
 919, holding an act failing to extend a prior act for want of description in title 
 will fail also as to part repealing general statutes. 
 
 6 L. R. A. 205, BRINSER v. ANDERSON, 129 Pa. 376, 11 Atl. 809, 18 Atl. 
 
 520. 
 Possession as notice of title. 
 
 Cited in Pace v. Yost, 10 Kulp, 541, holding unquestioned open possession of 
 land constructive notice of possessor's title; Carnegie Natural Gas Co. v. Phila- 
 delphia Co. 158 Pa. 329, 27 Atl. 951, holding lessor's possession constructive 
 notice of lessee's assignee of forfeiture of lease; Crooks v. Jenkins, 124 Iowa, 321, 
 104 Am. St. Rep. 326, 100 N. W. 82, as disapproving an excerpt from a former 
 case, that possession, under a lease known to purchaser is not constructive no- 
 tice to him of outstanding equities in favor of such lessee; Harper v. Runner, 
 85 Neb. 346, 123 N. W. 313, holding that where vendee buys with notice t'nat 
 lessee in possession claims land under an option in his lease, such vendee takes 
 title subject to the option to same extent as it was binding on his grantor. 
 
 Cited in footnote to Rock Island & P. R. Co. v. Dimick, 19 L. R. A. 105, 
 which holds open and exclusive possession of passageway through railroad em- 
 bankment notice of rights to purchaser of railroad. 
 
 Cited in notes (8 L.R.A. 211) on constructive notice by possession of land; 
 (13 L.R.A. (N.S.) 71) on possession of land as notice of title. 
 Parol contract for sale of land. 
 
 Cited in Schuey .v. Schaeffer, 130 Pa. 18, 18 Atl. 544, holding parol contract 
 for sale of land followed by possession and improvement, enforceable; Fay's 
 Estate, 213 Pa. 429, 62 Atl. 991, 35 Pittsb. L. J. N. S. 324, holding parol sale 
 of lots by name of addition to city plat they being all that grantor had there 
 was definite enough to enforce sale to buyer who went into immediate posses- 
 sion: Eisenberger v. Eisenberger, 25 Lane. L. Rev. 324; Lemmon v. Lemmon, 47 
 Pa. Super. Ct. 609, holding that parol contract for sale of land must be proved 
 by clear, precise and indubitable evidence. 
 
 6 L. R. A. 207, TOMLINSON v. BOARD OF EQUALIZATION, 88 Tenn. 1, 12 
 
 S. W. 414. 
 Certiorari ; when issnable. 
 
 Cited in Hayden v. Memphis. 100 Tenn. 585, 47 S. W. 182, holding, in ab- 
 sence of statutory right to appeal, removal of officer by city council reviewable 
 by certiorari. 
 
 Criticized and distinguished in Staples v. Brown, 113 Tenn. 653, 85 .S. W. 
 254, holding candidate for city office who has unsuccessfully contested his elec- 
 
1037 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 212 
 
 tion before city council from which no appeal is provided is entitled to a trial 
 de novo before circuit court on certiorari. 
 Power to reasseaa. 
 
 Cited in Iron Companies v. Pace, 89 Tenn. 720, 15 S. W. 1077, holding power 
 of court to make reassessment terminated absolutely at expiration of time al- 
 lowed. 
 
 6 L. R. A. 212, ALBANY v. McNAMARA, 117 N. Y. 168, 22 N. E. 931. 
 Voluntary expenditures not recoverable from person benefited. 
 
 Cited in Oneida County v. Bartholomew, 82 Hun, 83, 31 N. Y. Supp. 106, and 
 Montgomery County v. Gupton, 139 Mo. 308, 39 S. W. 447, holding money 
 voluntarily paid for support of insane pauper not recoverable from estate; 
 Montgomery County v. Xyce, 161 Pa. 83, 28 Atl. 999, Affirming 13 Pa. Co. Ct. 
 595, holding, in absence of statute, pauper's subsequently acquired estate not 
 liable for past voluntary maintenance; Xewburgh Sav. Bank v. Woodbury, 64 
 App. Div. 308, 72 X. Y. Supp. 222, holding money voluntarily paid to drafted 
 men under unconstitutional statute not recoverable; Koehler v. Hughes, 4 Misc. 
 238, 24 N. Y. Supp. 760, holding taxes voluntarily paid on whole property by 
 mortgagee of undivided share not recoverable; Farrar v. Farmers' Loan & T. 
 Co. 85 App. Div. 482, 83 N. Y. Supp. 218, holding evidence of declaration of 
 intention to accept devise, providing devisees should pay mortgage, relevant in 
 action for one half of sum paid by one devisee; State v. Colligan, 128 Iowa, 
 538, 104 X. W. 905. holding that in the absence of statutory provision the state 
 cannot recover compensation for the keeping of a nonresident lunatic in its 
 hospital; Chariton County v. Hartman, 190 Mo. 77, 88 S. W. 617, holding county 
 cannot maintain an action against the guardian of an indigent insane person 
 for taking charge of and maintenance of such person under statute imposing 
 such burden; Hathaway v. Delaware County, 103 App. Div. 183, 93 N. Y. Supp. 
 436, holding that a voluntary payment of money to one for the use of another 
 cannot be recovered from the latter unless a request for such payment be 
 shown; Re Carroll, 55 Misc. 498, 106 N. Y. Supp. 681, holding city cannot 
 recover from estate of person maintained in poorhouse on grounds that it was 
 deceived as to her financial condition unless actionable deceit on her part pro- 
 curing her commitment is proven; Re Brown, 60 Misc. 42, 112 X. Y. Supp. 599, 
 on the nonrecovery of money voluntarily paid out by one for another; Sterling 
 v. Chelsea Marble Works, 62 Misc. 629, 115 N. Y. Supp. 1096, holding that where 
 from the nature and circumstances of the payment a request of person benefited 
 may be implied, recovery can be had; Re Rider, 68 Misc. 272, 124 X. Y. Supp. 1001, 
 holding that request of person benefited to make payment must be shown in 
 order to recover back money paid for such other benefit; Stewart's Estate, 38 
 Pa. Super. Ct. 180, holding an obligation to reimburse cannot be implied from 
 the acceptance of charity from poor district by a poor person in absence of 
 statute providing for compensation: Re Whitesell, 11 Xorth. Co. Rep. 375, 
 holding that poor district can recover rents from life estate of pauper, which 
 have been collected and appropriated by his daughter; State v. Ikey, 84 Vt. 
 369, 79 Atl. 850, to the point that money expended by town in support of 
 pauper cannot be recovered of pauper without contract, express or implied, of 
 repayment; Re Gouverneur Pub. Co. 168 Fed. 117, holding payment by manager 
 as secretary and treasurer, of company indebtedness with his own funds ac- 
 quiesced in by company for years as a frequent practice, not a voluntary 
 payment. 
 
 Cited in footnotes to McXairy County v. McCoin, 41 L. R. A. 862, which 
 authorizes action for reimbursement by county, supporting lunatic as pauper 
 
6 L.R.A. 212] L. R. A. CASES AS AUTHORITIES. 1038 
 
 because of guardian's neglect; Bon Homme County v. Berndt, 50 L. R. A. 351. 
 which sustains statute making estates of insane persons, without heirs in United 
 States dependent thereon for support, chargeable with expense of maintenance 
 in hospital; McCook County v. Kammoss, 31 L. R. A. 461, which holds children 
 liable under statute to county furnishing support to poor parents; Richardson 
 v. Stuesser, 69 LJI.A. 829, which denies husband's liability for support of his 
 wife at an insane asylum to which she has been removed by due process of law. 
 
 Cited in note (55 L. R. A. 570) on liability of alleged pauper or his estate 
 to pay for support or gifts obtained on ground of poverty. 
 Indigent persons; who are. 
 
 Cited in Bartlett v. Ackerman, 49 N. Y. S. R. 297, 21 N. Y. Supp. 53, hold- 
 ing woman with four small children, unable to work, without means of sup- 
 port, and receiving public assistance, indigent. 
 Existence of jnrisdictional fact not presumed. 
 
 Cited in Hannah v. Chase, 4 N. D. 355, 50 Am. St. Rep. 656, 61 N. W. 18, 
 holding existence of jurisdictional fact not presumed, though founded on pre- 
 sumption of performance of official duty. 
 Presumption of investigation as to panper. 
 
 Cited in Re Chamberlain, 73 Misc. 261, 132 N. Y. Supp. 681, holding that it 
 is presumed where relief is granted to poor person that officer has made investi- 
 gation and determined right of party. 
 
 6 L. R. A. 214, CARROLL v. EAST TENNESSEE, V. & G. R. CO. 82 Ga. 452, 
 
 10 S. E. 163. 
 Motions in term continues until disposed of. 
 
 Cited in Helmly v. Davis, 111 Ga. 860, 36 S. E. 927, holding jurisdiction to pro- 
 ceed in term not lost by order to hear motion in chambers. 
 Res gestae; narratives of past occurrences. 
 
 Cited in Wabash R. Co. v. Farrell, 79 111. App. 511, holding written report of 
 engineer of accident not witnessed, which it was his duty to report, inadmissible; 
 Travelers Ins. Co. v. Sheppard, 85 Ga. 765, 12 S. E. 18, holding ex parte affidavits 
 furnished to insurer as preliminary proof of insured's death, inadmissible to show 
 bad faith in refusing payment; White v. Southern R. Co. 123 Ga. 358, 51 S. E. 
 411, holding statement by son of injured person made the morning after acci- 
 dent in presence of two persons and committed to writing, not admissible as 
 part of res gestae of the accident. 
 Rule of railroad; ^vhen obligatory. 
 
 Cited in Central R. & Bkg. Co. v. Ryles, 84 Ga. 431, 11 S. E. 499, holding rules 
 of railroad company not obligatory unless promulgated; Little v. Southern R. 
 Co. 120 Ga. 352, 66 L.R.A. 512, 102 Am. St. Rep. 104, 47 S. E. 953, holding 
 employee only bound by rules promulgated by company and of which he has 
 knowledge; Atlantic Coast Line R. Co. v. McLeod, 9 Ga. App. 19, 70 S. E. 214, 
 holding that rules of master are not binding on servant, unless he has actual or 
 constructive knowledge of them; Seaboard Air Line R. Co. v. Shanklin. 78 C. 
 C. A. 334, 148 Fed. 345, holding company rules for employees same as law in 
 regulation of their conduct where established and promulgated in same reason- 
 able way and employees have knowledge of them. 
 
 Cited in notes (12 L. R, A. 344) on rules to insure safety of employees; (43 L. 
 R. A. 318, 358) on duties of master and servant as to rules promulgated for safe 
 conduct of business. 
 Admisslbllity of declarations of agents. 
 
 Cited in notes (131 Am. St. Rep. 316) on declarations and acts of agents; 
 
1039 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 218 
 
 (18 L.R.A. (X.S.) 233) on admissibility of reports by agent or employee to 
 employer, to prove fact in issue. 
 Declarations of officers as admissions of corporation. 
 
 Cited in Robert R. Sizer & Co. v. Melton, 129 Ga. 148, 58 S. E. 1055, holding 
 testimony of a district manager of lumber company not impliedly an admission 
 of the company, it not being in the scope or course of his employment; Atchison, 
 T. & S. F. R. Co. v. Burks, 78 Kan. 524, 18 L.R.A. (N.S.) 237, 96 Pac. 950, 
 holding report of inspector made before or after inspection not an admission 
 of company where such inspector has no authority to bind the company by his 
 statements; Ex parte Schoepf, 74 Ohio St. 16, 6 L.R.A. (N.S.) 330, 77 X. E. 
 276, holding a report of an accident made by conductor as per company rule 
 and in the hands of company counsel is privileged and its production cannot 
 be enforced before trial; United States v. La Abra Silver Min. Co. 32 Ct. Cl. 
 491, holding the statements of mining superintendent made at the time of 
 occurrence and in the ordinary course of business must be regarded as state- 
 ments of company. 
 Contributory negligence. 
 
 Cited in Georgia P. R. Co. v. Davis, 92 Ala. 310, 25 Am. St. Rep. 47. 9 So. 
 252. holding that contributory negligence cannot be imputed to brakeman on 
 account of violation of rules when it appears that his conduct was in accordance 
 with general custom; Jackson v. Georgia Southern & F. R. Co. 132 Ga. 140, 63 S. 
 E. 841, holding contributory negligence of fireman a question for the jury on 
 the evidence that he stayed at his post while the engineer negligently took the 
 engine out on the tracks; Southern R. Co. v. Hopkins, 88 C. C. A. 312, 161 
 Fed. 270, holding a charge which assumes to determine contributory negligence 
 is an invasion of the province of the jury. 
 
 6 L. R. A. 218, WILLIAMS v. EVANS, 87 Ala. 725, 6 So. 702. 
 
 Illegality of contracts involving issuance of fictitious stock or bonds. 
 
 Cited in Williams v. Searcy, 94 Ala. 363, 10 So. 632, holding agreement to issue 
 to vendor stock double the consideration in land contract, illegal; Alabama Nat. 
 Bank v. Halsey, 109 Ala. 208, 19 So. 522, holding note given for stock thereafter 
 to be issued, $2 for each $1, void; Smith v. Alabama Fruit Growing & Winery 
 Asso. 123 Ala. 541, 26 So. 232, holding contract by corporation to pay to sub- 
 scriber dividends equal to amount paid for stock void ; Gay v. Brierfield Coal & I. 
 Co. 94 Ala. 326, 16 L. R. A. 574, 33 Am. St. Rep. 122, 11 So. 353, holding cor- 
 porate bonds and mortgage, issued without consideration, fraudulent as to cred- 
 itors; Tutwiler v. Tuskaloosa Coal, Iron & Land Co. 89 Ala. 399, 7 So. 398, rais- 
 ing, without deciding, question of validity of stock issued on basis of overvalua- 
 tion: San Antonio Irrig. Co. v. Deutschmann, 102 Tex. 208, 114 S. W. 1174, 
 holding a contract of purchase of corporation stock, the purchase price to be 
 paid any time in the future is void with respect to provision for future payment. 
 
 Distinguished in Beitman v. Steiner Bros. 98 Ala. 248, 13 So. 87, holding note 
 given for stock already issued, with knowledge of its issuance upon fictitious 
 value, valid. 
 Corporations; issue of fictitious stock. 
 
 Cited in State ex rel. Sanche v. Webb, 97 Ala. 119, 38 Am. St. Rep. 151, 12 So. 
 377. holding certificate of organization issued upon fraudulent affidavit of paid-up 
 stock does not waive state's right to vacate charter. 
 
 Cited in note (87 Am. St. Rep. 850) on fraudulent and over-issued corporate 
 stock. 
 
6 L.R.A. 218] L. R. A. CASES AS AUTHORITIES. 1040 
 
 Liability of holders to creditors. 
 
 Cited in Gilkie & A. Co. v. Dawson Town & Gas Co. 46 Xeb. 350, 64 N. W. 978 r 
 holding subscriber paying for stock in property liable for difference between real 
 and fictitious valuation; Leucke v. Tredway, 45 Mo. App. 518, holding taker of 
 shares from corporation at less than par liable for difference in creditor's action; 
 Elyton Land Co. v. Birmingham Warehouse & Elevator Co. 92 Ala. 415, 12 L. R. 
 A. 310, 25 Am. St. Rep. 65, 9 So. 129, holding holders of stock issued for grossly 
 over-valued property liable as for unpaid subscriptions; Grant v. East & West R. 
 Co. 4 C. C. A. 518, 13 U. S. App. 1, 54 Fed. 576, holding subscribers paying for 
 stock in property at bona fide valuation not liable. 
 
 Distinguished in Davis Bros. v. Montgomery Furnace & Chemical Co. 101 Ala. 
 129, 8 So. 496, holding subscriber to bonds receiving bonus stock issued for prop- 
 erty not liable, on failure to pay subscription, as upon unpaid stock subscription. 
 
 6 L. R. A. 219, NOUNNAN v. SUTTER COUNTY LAND CO. 81 Cal. 1, 22 Pac. 
 
 515. 
 Statements of opinion. 
 
 Cited in Choate v. Hyde, 129 Cal. 584, 62 Pac. 118, holding expression of opin- 
 ion as to sufficiency of title, based on facts equally accessible to both parties, not 
 fraud; Taylor v. Ford, 131 Cal. 445, 63 Pac. 770, holding statements as to value 
 of book accounts upon sale of interest by one partner to another not fraudulent ; 
 American Nat. Bank v. Hammond, 25 Colo. 372, 55 Pac. 1090, holding bank not 
 liable for expression as to solvency of person; Krasilnikoff v. Dundon, 8 Cal. 
 App. 412, 97 Pac. 172, holding allegation of misrepresentations, purely as to 
 matter of opinion insufficient to charge fraud in breach of warranty; Johnson 
 v. Withers, 9 Cal. App. 55, 98 Pac. 42, holding representation as to amount of 
 minerals in a place is as to a matter of fact and not as to a matter of opinion. 
 
 Cited in notes (35 L. R. A. 439) on expression of opinion as fraud; (10 L. R. A. 
 606) on necessity of clear and strong proof of fraud; (35 L.R.A. 439) on 
 expression of opinion as fraud; (14 Am. St. Rep. 407; 18 Am. St. Rep. 556, 
 563; 12 Eng. Rul. Gas. 297) on what constitutes fraudulent representations 
 and liability therefor. 
 Waiver of fraud. 
 
 Cited in Schmidt v. Mesmer, 116 Cal. 272, 48 Pac. 54, holding claim for dam- 
 ages for fraudulently misrepresenting income of hotel waived by lessee's continued 
 occupancy without complaint; Lee v. McClelland, 120 Cal. 151, 52 Pac. 300, hold- 
 ing claim for damages from fraudulent representations prior to making land con- 
 tract waived by substitution of more favorable contract after occupying land; 
 Baltimore & 0. R. Co. v. Jolly Bros. 71 Ohio St. 129, 72 N. E. 888, on com- 
 pletion of performance after discovery of fraud as not a waiver of the fraud 
 where it is impractical to stop performance; Kelly v. Delaney, 136 App. Div. 
 614, 121 N. Y. Supp. 241, holding that where a party to a partly executed 
 contract discovers fraud in its procurement and thereafter completes the execu- 
 tion he waives his right of action thereon. 
 
 6 L. R. A. 222, STATE ex rel. WINE v. KEOKUK & W. R. CO. 99 Mo. 30, 12 S. 
 
 W. 290. 
 Corporate exemptions. 
 
 Followed in Keokuk & W. R. Co. v. County Court, 41 Fed. 306, holding railroads 
 consolidated after passage of tax exemption act not entitled to its benefit. 
 
 Cited in Sublette v. St. Louis, I. M. & S. R. Co. 96 Mo. App. 124, 69 S. W. 745, 
 holding exemption of railroad from actions for killing stock not transferable. 
 
 Cited in footnote to Lake Drummond C. & W. Co. v. Com. 68 L.R.A. 92, which 
 
1041 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 226 
 
 denies power of legislature to transfer to new corporation old company's exemp- 
 tion from taxation after adoption of constitutional provision for taxation of all 
 property. 
 Corporations; consolidation. 
 
 Cited in Winn v. Wabash R. Co. 118 Fed. 58, holding that consolidation works 
 dissolution of old, and formation of new, corporation; State ex rel. Houck v. Le- 
 sueur, 145 Mo. 328, 46 S. W. 1075, holding that consolidation forms new corpora- 
 tion, liable for incorporation fees; Evans v. Interstate Rapid Transit R. Co. 106 
 Mo. 601, 17 S. W. 489, holding question whether consolidation dissolves constit- 
 uent corporations depends on statute; State ex rel. Hobart v. Smith, 173 Mo. 409, 
 73 S. W. 211, Affirming 98 Mo. App. 235, 68 S. W. 942, holding consolidated com- 
 pany may enforce bond running to constituent company for default occurring after 
 consolidation; Smith v. Cleveland, C. C. & St. L. R, Co. 170 Ind. 394, 81 N. 
 E. 501, holding consolidation to result in formation of one corporation regarded 
 as a domestic corporation in each of the states where laws are followed in 
 effecting the consolidation. 
 
 Cited in note (89 Am. St. Rep. 614, 616, 617, 626, 650, 651) on effect of 
 consolidation of corporations. 
 Corporation bound by acceptance of charter. 
 
 Cited in St. Louis R. Co. v. Southern R. Co. 105 Mo. 586, 16 S. W. 960, holding 
 railroad company accepting provisions of city charter bound by provision per- 
 mitting use of tracks by another company. 
 Res jndicata. 
 
 Cited in Womach v. St. Joseph, 201 Mo. 490, 10 L.R.A.(N.S.) 149, 100 S. W. 
 443, on former judgment as res judicata. 
 
 Cited in note (20 Am. St. Rep. 356) on what does not constitute res judicata. 
 
 6 L. R. A. 226, ARMSTRONG v. CHEMICAL NAT. BANK, 41 Fed. 234. 
 
 Action to compel allowance of claim in Chemical Nat. Bank v. Armstrong, 50 
 Fed. 800. 
 Insolvent national banks; preferences. 
 
 Cited in Stapylton v. Stockton, 33 C. C. A. 546, 63 U. S. App. 412, 91 Fed. 330, 
 holding security given by insolvent national bank good for present, but not ante- 
 cedent, advances; Booth v. Atlantic Clearing House Asso. 132 Ga. 103, 63 S. E. 
 907, holding the depositing of collaterals to secure payment of certificates from 
 trustees of clearing house was not such a transfer as created a preference within 
 the statute. 
 
 Cited in note (25 L. R. A. 548) on exceptions to prohibition of preferences by 
 insolvent national banks. 
 Attachment of national bank stock. 
 
 Cited in footnote to Doty v. First Nat. Bank, 17 L. R. A. 259, which holds right 
 of transferee of national bank stock under unrecorded transfer superior to sub- 
 sequent attachment. 
 Banker's lien on deposits. 
 
 Cited in Re Gesas, 77 C. C. A. 201, 146 Fed. 736, holding the banker's lien 
 attaches only to such property as is received in the usual course of the banking 
 business; Van Zandt v. Hanover Xat. Bank 79 C. C. A. 23, 149 Fed. 129, holding 
 it does not attach upon securities which are deposited with the banker for a 
 special purpose. 
 
 Cited in footnote to Gardner v. First Xat. Bank. 10 L. R. A. 45, which holds 
 authority given to bank to apply deposits to notes before maturity terminates 
 with death of depositor. 
 
 L.R.A. Au. Vol. I. 66. 
 
6 L.E.A. 22tij L. R. A. CASES AS AUTHORITIES. 1042 
 
 Cited in note (111 Am. St. Rep. 425) on bankers' liens not founded on 
 contract. 
 
 6 L. R. A. 230, NELSON COUNTY v. NORTHCOTE, 6 Dak. 378, 43 N. W. 897. 
 Liability 'or acts resulting- in embezzlement of county funds. 
 
 Cited in Hudson v. McArthur, 152 N. C. 452, 28 L.R.A. (N.S.) 120,. 67 S. E. 
 995, holding negligence of county commissioners in failing to settle with county 
 sheriff as required by statute does not render them liable to sureties on sheriff's 
 bond. 
 
 6 L. R. A. 234, STATE v. ST. PAUL UXIOX DEPOT CO. 42 Minn. 142, 43 N. W. 
 840. 
 
 Referred to in St. Paul Union Depot Co. v. Minnesota & N. W. R. Co. 47 
 Minn. 156, 13 L.R.A. 416, 49 N. W. 646; Chicago G. W. R. Co. v. St. Paul 
 Union Depot Co. 68 Minn. 221, 71 N. W. 23, for statement of character and 
 object of depot company; Chicago, St. P. & K. C. R. Co. v. St. Paul Union 
 Depot Co. 54 Minn. 414, 56 N. W. 129, for terms upon which plaintiff shared 
 privileges of depot of defendant; Floody v. Chicago, St. P. M. & 0. R. Co. 109 
 Minn. 236, 134 Am. St. Rep. 771, 123 N. W. 815, for statement of character of 
 union depot company as servant of railroads. 
 Taxation of corporations. 
 
 Cited in Com. v. Ledman, 127 Ky. 613, 106 S. W. 247, holding that foreign 
 holding corporation is not taxable: Board of Equalization v. Louisville & N. 
 R. Co. 139 Ky. 394, 109 S. W. 303, to the point that bridge used by railway 
 is railroad property and liable to taxation as such; First Nat. Bank v. Douglas 
 County, 124 Wis. 21, 102 N. W. 315, 4 A. & E. Ann. Cas. 34, holding under 
 statute exempting "capital" of bank from taxation the property purchased with 
 capital is also exempt; Com. v. Lehigh Valley R. Co. 3 Dauphin Co. Rep. 329. 
 holding that tax against railroad corporation on property situated in another 
 state is double taxation where such property is also taxed in state where located. 
 
 Cited in notes (6 L. R. A. 222) on taxation of consolidated corporations; (58 
 L. R. A. 591) on double taxation of corporations. 
 
 Distinguished in St. Louis & S. F. R. Co. v. Williams, 53 Ark. 65, 13 S. W. 796. 
 holding railway bridge assessable to bridge corporation owning same, rather than 
 to railroad using bridge as lessee. 
 
 6 L. R. A. 236, THOMPSON v. WINTER, 42 Minn. 121, 43 N. W. 796. 
 Specific performance of real estate contracts. 
 
 Cited in Abbott v. Moldestad, 74 Minn. 300, 73 Am. St. Rep. 348, 77 N. W. 227, 
 holding discretion of court in decreeing specific performance must not be arbi- 
 trary or capricious, but judicial. 
 
 Cited in footnote to Atchison, T. & S. F. R. Co. v. Chicago & W. L R. Co. 35 L. 
 R. A. 167, which refuses to require payment of interest not provided for as con- 
 dition of specific performance of contract. 
 
 6 L. R. A. 238, ANDRES v. CIRCUIT JUDGE, 77 Mich. 85, 43 N. W. 857. 
 Mandamus to compel quo vrarranto. 
 
 Cited in Lamoreaux v. Ellis, 89 Mich. 149, 50 N. W. 812, denying defeated can- 
 didate's petition for mandamus in quo warranto to test sheriff-elect's right to 
 office. 
 .Effect of a declaration of intention to become a citizen. 
 
 Cited in United States v. Breen, 135 App. Div. 825, 120 N. Y. Supp. 304, 
 holding the declaration of an intention to become a citizen is a mere expression 
 
1043 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 241 
 
 of a state of mind and the filing and formal record thereof is ministerial, not 
 
 judicial. 
 
 Qualifications of voters. 
 
 Cited in note (19 Am. St. Rep. 567) on qualifications of voters. 
 
 L. R. A. 241, CINCINNATI, I. ST. L. & C. R. CO. v. COOPER, 120 Ind. 469, 16 
 
 Am. St. Rep. 334, 22 N. E. 340. . 
 
 Liability for probable consequences of wrongful act. 
 
 Cited in Louisville, N. A. & C. R. Co. v. Nitsche, 126 Ind. 233, 9 L. R. A. 752, 
 22 Am. St. Rep. 582, 26 N. E. 51, holding railroad liable for damage from spread 
 of fire set on right of way, when result probable under circumstances; Ohio & M. 
 R. Co. v. Trowbridge, 126 Ind. 396, 26 N. E. 64, holding hand car left in highway, 
 whereby plaintiff's horse took fright, and threw her, proximate cause of injury, 
 which might have been anticipated. 
 
 Cited in footnote to People v. Lewis, 45 L. R. A. 783, which holds suicide of 
 person mortally wounded does not relieve assailant from guilt of manslaughter. 
 
 Cited in note (36 Am. St. Rep. 829) on liability for sickness or other physical 
 incapacity resulting from wrongful acts. 
 Inferable negligence. 
 
 Cited in Price v. St. Louis, I. M. & S. R. Co. 75 Ark. 492, 112 Am. St. Rep. 
 79, 88 S. W. 575, holding the doctrine of res ipsa loquitur does not apply where 
 the accident might as plausibly have happened from negligence on part of pas- 
 senger as on part of carrier. 
 Care dne to helpless persons. 
 
 Cited in note (69 L.R.A. 518) on care due to sick, infirm, or helpless persons, 
 with whom no contract relation is sustained. 
 Duty of railroad To passenger. 
 
 Cited in Wheeler v. Grand Trunk R. Co. 70 N. H. 614, 54 L. R, A. 956, foot- 
 note p. 955, 50 Atl. 103. holding intoxication of passenger does not preclude recov- 
 ery for injury from falling off train, if railroad employees, knowing his condi- 
 tion, could have prevented accident by exercise of due care; Fisher v. West Vir- 
 ginia & P. R. Co. 42 W. Va. 199, 33 L. R. A. 75, 24 S. E. 570 (dissenting opinion), 
 majority holding contributory negligence of intoxicated passenger insisting on 
 riding on platform of car, against protest of conductor, precludes recovery for 
 injury from falling off car; Louisville, H. & St. L. R. Co. v. Gregory, 141 Ky. 
 765, 35 L.R.A.(N.S.) 325, 133 S. W. 805, holding that trainmen are obliged to 
 exercise reasonable care for intoxicated passenger when they discover his help- 
 less, irresponsible or incapable condition; Black v. New York, N. H. & H. R. Co. 
 103 Mass. 453, 7 L.R.A. (N.S.) 152, 79 N. E. 797, 9 A. & E. Ann. Cas. 485, 
 "holding the carrier liable for injuries resulting though plaintiff was intoxicated 
 if its negligent acts were done with knowledge of his condition. 
 
 Cited in footnotes to Reed v. Louisville & N. R. Co. 44 L. R. A. 823, which re- 
 quires railroad company to stop and rescue passenger fallen or thrown from 
 train, only when possible without risk of collision; Southern P. Co. v. Tarin, 54 
 L. R. A. 240, which holds carrier liable for injury to unwarned passenger in car 
 left standing till undermined by freshet; Fisher v. West Virginia & P. R. Co. 23 
 L. R. A. 758, which holds carrier not liable for injury to drunken passenger 
 coming down car step without conductor's knowledge and falling off; Bageard v. 
 Consolidated Traction Co. 49 L. R. A. 424, which denies carrier's liability for 
 injury to sick passenger, supposed to be intoxicated, while going towards back 
 of station, after being helped to front where way open to street; Chesapeake & 
 O. R, Co. v. Saulsberry, 56 L. R. A. 580. which denies liability to drunken pas- 
 
6 L.R.A. 241] L. R. A. CASES AS AUTHORITIES. 1044 
 
 senger ejected at. station where ticket expires, for injuries in attempting to re- 
 enter train; Pullman Palace Car Co. v. Smith, 13 L. R. A. 215, which holds 
 sleeping-car company liable for servants causing passengers to get off at wrong 
 place; Southern R. Co. v. Hobbs, 63 L.R.A. 68, which holds promise by conductor 
 to assist partially blind passenger in alighting not an undertaking to escort her 
 from her seat to the platform; Korn v. Chesapeake & O. R. Co. 63 L.R.A. 873, 
 which denies liability of carrier for death of intoxicated passenger expelled from 
 train within village when temperature was near the freezing point; Fox v. 
 Michigan C. R. Co. 68 L.R.A. 336, which holds carrier liable where employees 
 in charge of train knowingly permit person beastly drunk to go out alone on 
 platform of moving car. 
 
 Cited in notes (8 L. R. A. 674) on duty of carrier to use care for safety of pas- 
 senger; (19 L. R. A. 327) on exposure of drunken passenger to danger by ejec- 
 tion from car; (10 L. R. A. 140) on duty of carrier to inebriates; (40 L. R. A. 
 144) on intoxication as affecting negligence; (35 L. ed. U. S. 921) on negligence 
 of railroad companies toward passengers. 
 To trespasser on track. 
 
 Cited in footnotes to Clark v. Wilmington & W. R, Co. 14 L. R. A. 749, which 
 holds negligence in getting on railroad trestle does not relieve from liability in 
 running down; Becker v. Louisville & X. R. Co. 53 L. R. A. 268, which requires 
 checking speed to enable trespasser, discovered on railroad bridge, to escape; 
 Raines v. Chesapeake & O. R. Co. 24 L. R. A. 226, which holds railroad employees 
 have right to presume, on giving signals, that person on track will step aside; 
 Cleveland, C. C. & St. L. R. Co. v. Tartt, 49 L. R. A. 99, which denies duty towards 
 trespassers on track before discovery; Schreiner v. Great Northern R. Co. 58 L. 
 R. A. 75, which denies railroad's liability to trespasser on tracks, pushed in front 
 of train by stray cow; Patton v. East Tennessee, V. & G. R. Co. 12 L. R. A. 184, 
 which holds duty owed to trespassers to have lookouts on rear section of train 
 broken in two, to give warning. 
 
 Cited in notes (11 L.R.A. 385; 69 L.R.A. 543) on duty of railroad to 
 trespassers. 
 Recklessness as snowing wilful intent. 
 
 Cited in Lake Erie & W. R. Co. v. Brafford, 15 Ind. App. 662, 43 N. E. 882, 
 holding wilful killing inferred from failure of engineer to reduce speed until 
 within 40 feet of man on track with back to train; Southern R. Co. v. McXeeley, 
 44 Ind. App. 134, 88 N. E. 710, holding that to constitute wilful injury, act 
 must have been intentional or must have been done under such circumstances 
 as evinced reckless disregard for other's safety and willingness to inflict the 
 injury; Chicago, R. I. & P. R. Co. v. Lacy, 78 Kan. 629, 97 Pac. 1025, holding 
 recklessness amounting to utter disregard of consequences is held to supply the 
 place of specific intent. 
 
 Distinguished in Cleveland, C. C. & St. L. R. Co. v. Miller, 149 Ind. 500, 49 N. 
 E. 445, holding failure of engineer to give warning at crossing, although vehicle 
 seen approaching w T hen train 1,200 feet away, not evidence of wilful injury. 
 Neslig-ence toward neg-li&eiit or \vronjjfdoing person. 
 
 Cited in Pittsburgh, C. C. & St. L. R. Co. v. Ferrell, 39 Ind. App. 541, 78 
 N. E. .988 (dissenting opinion), on contributory negligence as defense to wilful 
 injury. 
 
 6 L. R. A. 246, HUNTER v. NEW YORK, O. & W. R. CO. 116 N. Y. 615, 23 N. 
 
 E. 9. 
 Judicial notice. 
 
 Cited in Gurley v. Missouri P. R. Co. J04 Mo. 233, 16 S. W. 11, judicially notic- 
 
1045 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 240 
 
 ing that injury to leg 8 or 9 inches below thigh could not have been received 
 while walking between two ordinary freight cars; Campbell v. Wood. 116 Mo. 202, 
 22 S. W. 796, taking judicial notice of meaning of surveyor's marks, made under 
 surveyor general's orders on government plats; Rogers v. Cady, 104 Cal. 290, 43 
 Am. St. Rep. 100, 38 Pac. 81, holding county within which lands, described by 
 section, township, and range, are located, matter of judicial notice; Parks v. 
 Jacob Bold Packing Co. 6 Misc. 574, 27 N. Y. Supp. 289, taking judicial notice that 
 geographical location of Kansas City and Wichita outside state of Xew York; 
 Hanson v. Heard, 69 N. H. 191, 38 Atl. 788, taking judicial notice that cashier has 
 prima facie authority to make collections and receive deposits; Burke v. Terri- 
 tory, 2 Okla. 512, 37 Pac. 829, holding that court may take judicial notice of its 
 own proceedings in contempt proceeding for improper publication of same; Mon- 
 tenes v. Metropolitan Street R. Co. 77 App. Div. 495, 78 N. Y. Supp. 1059, and 
 Lendle v. Robinson, 53 App. Div. 146, 65 X. Y. Supp. 894, taking judicial notice, 
 with help of almanac to refresh memory, as to time of sunset on date of accident ; 
 Cohn v. Kahn. 14 Misc. 257, 35 N. Y. Supp. 829, taking judicial notice of particu- 
 lar day of week on which date given in evidence falls; Walton v. Stafford, 14 
 App. Div. 314, 43 X. Y. Supp. 1049, appellate court not bound judicially to notice 
 that first day of month fell on Sunday, where fact not called to attention of trial 
 court; Hoagland v. Canfield, 160 Fed. 160, holding courts and juries take 
 judicial notice of the fact that the height of men is not eight feet; St. Louis 
 v. Xiehaus. 236 Mo. 16, 139 S. W. 450, to the point that courts are not bound 
 to take judicial notice of matters of fact; Topham v. Interurban Street R. Co. 
 96 App. Div. 329, 89 N. Y. Supp. 298, holding the courts may take judicial 
 notice of fact that a railroad can only be operated upon a system, the product 
 of rules and regulations: Montenes v. Metropolitan Street R. Co. 77 App. Div. 
 495, 78 N. Y. Supp. 1059. holding the court may take judicial notice of the 
 time of the rising and setting of the sun on any given day; Re Viemeister, 179 
 N. Y. 240. 70 L.R.A. 798, 103 Am. St. Rep. 859, 72 N. E. 97, 1 A. ft E. Ann. 
 Cas. 334, holding a common belief may be acted upon without proof by the 
 legislature and the courts; Robinson v. Insurance Co. 198 N. Y. 525, 91 N. E. 
 373. on judicial notice of location of places; Peterson v. Standard Oil Co. 55 
 Or. 517, 106 Pac. 337, Ann. Cas. 1912A, 625, holding that court will take judicial 
 notice of dangerous character of kerosene oil. 
 
 Cited in note (124 Am. St. Rep. 22, 44) on facts of which courts will take 
 judicial notice. 
 
 Distinguished in North Hempstead v. Gregory, 53 App. Div. 354, 65 X. Y. 
 Supp. 867, refusing to take judicial notice of character of construction necessary 
 in pier to withstand ice, or of extent of burden imposed upon soil by pier on piles 
 as compared with that of solid pier, or of custom of vessels to lie aground at low 
 water in exercise of right incident to navigation. 
 Proof of cause of accident. 
 
 Cited in Deschenes v. Concord & M. R. Co. 69 X. H. 290, 46 Atl. 467, rendering 
 judgment for defendant where evidence failed to show, except inferentially, that 
 brakeman was killed by bridge by reason of defective guard; Fitzgerald v. New 
 York C. & H. R. R. Co. 154 X. Y. 266, 48 X. E. 514, denying right to recover 
 where evidence showed brakeman's death after passing under bridge from 4% to 
 6*4 feet above top of car, but no proof of contact with bridge; Safford v. Green 
 Island, 74 Hun, 307. 26 X. Y. Supp. 669, denying right to recover for injury from 
 fall on icy pavement in absence of evidence that accident would not have occurred 
 in absence of ridges: McCarty v. Lockport, 13 App. Div. 500, 43 X. Y. Supp. 693, 
 holding jury not justified in finding slope of sidewalk, and not slipperiness of 
 snow, proximate cause of fall. 
 
6 L.R.A. 246] L. R. A. CASES AS AUTHORITIES. 1046 
 
 Distinguished in Cash v. New York C. & H. R. R. Co. 56 App. Div. 476, 67 X. 
 Y. Supp. 823, holding proof of accident not rebutted by proof of physical im- 
 possibility of occurrence in manner stated by plaintiff's witness. 
 Duty toward employees. 
 
 Cited in Cincinnati, N. 0. & L. P. R. Co. v. Jones, L.R.A. (X.S.) , 113 
 C. C. A. 55, 192 Fed. 772, holding that railroad was liable for injury caused 
 brakeman through being struck by tunnel roof which was lower in central portion 
 than at entrance, and of which fact he had no warning. 
 
 Cited in footnote to Sweet v. Ohio Coal Co. 9 L. R. A. 861, which holds master 
 may conduct business in his own way, though other method less hazardous. 
 Contributory negligence of -employee. 
 
 Cited in Mexican C. R. Co. v. Eckman, 42 C. C. A. 350, 102 Fed. 279, holding 
 contributory negligence of conductor sitting on roof of car going through tunnel 
 sufficiently high at entrance, for jury. 
 Assumption of risk. 
 
 Cited in footnotes to Williamson v. Newport News A M. Valley R. Co. 12 L. 
 R. A. 297, which holds brakeman assumes risk of bridge known to be too low; 
 Mensch v. Pennsylvania R. Co. 17 L. R. A. 450, which holds danger from projec- 
 tion of bolt from end of car assumed by brakeman; McKee v. Chicago, R. I. & P. 
 R. Co. 13 L. R, A. 817, which .holds risk from wing fence at cattle-guard assumed 
 by brakeman; Stager v. Troy Laundry Co. 53 L. R. A. 459, which holds risk of 
 hand passing under guard rails into rollers not assumed, as matter of law, by 
 servant operating mangle in laundry. 
 Credibility of witness. 
 
 Cited in Williams v. Delaware, L. & W. R. Co. 155 N. Y. 162, 49 N. E. 672, hold- 
 ing jury sole judge thereof, under provisions of Code; Sheppard v. Wichita Ice 
 & Cold Storage Co. 82 Kan. 513, 28 L.R.A. (N.S.) 650, 108 Pac. 819, holding 
 the verdict will not be disturbed on ground that it is contradicted by the laws 
 of nature in a case where some evidence tends to support it, unless the physical 
 facts show beyond a reasonable doubt the falsity of the evidence. 
 
 Distinguished in Galveston, H. & S. A. R. Co. v. Walker, 38 Tex. Civ. App. 
 80, 85 S. W. 28, holding it the duty to set aside verdict based upon evidence 
 of plaintiff alone where it is covered with the gravest suspicion and its incon- 
 sistencies shock the conscience. 
 
 6 L. R. A. 249, HOPEWELL MILLS v. TAUNTOX SAV. BANK, 150 Mass. 519, 
 
 15 Am. St. Rep. 235, 23 N. E. 327. 
 Effect on fixtures of conveyance or mortgage of realty. 
 
 Cited in Wentworth v. S. A. Woods Mach. Co. 163 Mass. 33, 39 N. E. 414, 
 holding that machines so affixed to freehold as to make them part of realty, pass 
 to purchaser though title retained till paid for; Ryder v. Faxon, 171 Mass. 208. 
 68 Am. St. Rep. 417, 50 N. E. 631, holding finding of agreement that building put 
 on leased property should be property of lessee, justified; Cosgrove v. Troescher. 
 62 App. Div. 126, 70 N. Y. Supp. 764, holding that character of gas logs, refrig- 
 erators, etc., as fixtures, depends upon intention of owner; Cunningham v. Cure- 
 ton, 96 Ga. 494, 23 S. E. 420, holding mill fixtures passed with mortgage of mill 
 notwithstanding agreement that title in them should not pass to purchaser until 
 note paid; Gunderson v. Svvarthout, 104 Wis. 101, 76 Am. St. Rep. 860, 80 X. W. 
 465, holding dynamo and machinery connected with it, fixtures passing under 
 foreclosure sale of realty; Xational Bank v. North, 160 Pa. 308, 28 Atl. 694, hold- 
 ing steam radiators and valves for heating not fixtures passing with mortgage of 
 building; Fisk v. People's Nat. Bank, 14 Colo. App. 27, 59 Pac. 63, holding pur- 
 
3047 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 249 
 
 chaser at foreclosure sale of trust property entitled to brickmaking machinery as 
 fixtures, put on premises after execution of deed of trust; Fifield v. Farmer^ Nat. 
 Bank, 47 111. App. 123, holding machinery attached to building by owner, under 
 secret agreement with owner of machinery to retain title, passed under trust deed 
 of land; Baker v. McClurg, 198 111. 34, 59 L. R. A. 134, 92 Am. St. Rep. 261, 64 
 X. E. 701, Affirming 96 111. App. 173, holding that removable trade fixtures may 
 include ovens, engines, and other bakery fixtures; Thomson v. Smith, 111 Iowa, 
 723, 50 L. R. A. 782, 82 Am. St. Rep. 541, 83 X. W. 789, holding weighing scales 
 to be fixtures, though extending a few inches on neighboring lot, passing under 
 sheriff's deed; Re Goldville Mfg. Co. 118 Fed. 898, holding mill machinery to be 
 fixtures passing under mortgage of mill; Ice, Light & Water Co. v. Lone Star 
 Engine & Boiler Works, 15 Tex. Civ. App. 697, 41 S. W. 835, holding that steam 
 boiler attached to realty as fixture passes to purchaser of realty free from lien of 
 chattel mortgage; Pfluger v. Carmichael, 45 App. Div. 154, 66 X. Y. Supp. 417, 
 holding stepping-stone on sidewalk and vases in garden, which have been often 
 removed, not pass on foreclosure of realty as improvements; William Firth Co. v. 
 South Carolina Loan & T. Co. 122 Fed. 579, holding mortgage of mill and machin- 
 ery valid as to machinery though not recorded as chattel mortgage; Lazear v. 
 Ohio Valley Steel Foundry Co. 65 W. Va. 115, 63 S. E. 772, holding liens re- 
 served by vendors of personal property attached to realty will be protected 
 only when it can be done without injury to existing rights of the parties 
 affected by the lien: Tippett v. Barham, 37 L.R.A. (KS.) 132, 103 C. C. A. 430, 
 180 Fed. 81, holding a standpipe erected as part of a water system upon prop- 
 erty acquired after giving a mortgage upon plant became subject to the mortgage, 
 notwithstanding reservation of lien by contractor; Great Western Mfg. Co. v. 
 Bathgate, 15 Okla. 99, 79 Pac. 903, holding chattels attached to a grist mill and 
 adopted to its running, after execution of a mortgage upon property becomes 
 subject to the mortgage; Wetherill v. Gallagher, 211 Pa. 311, 107 Am. St. Rep. 
 575, 60 Atl. 905, holding as between the innocent purchaser without notice and 
 lessor of boilers erected and used as part of paper plant, the boilers became 
 fixtures and passed with sale of land; Equitable Guarantee & T. Co. v. Knowles, 
 8 Del. Ch. 130, 67 Atl. 961, holding while the character of a chattel may be 
 fixed by contract as between the contracting parties the contract cannot affect 
 the rights of a mortgage or innocent purchaser without notice. 
 
 Cited in footnotes to Anderson v. Creamery Package Mfg. Co. 56 L. R. A. 554 r 
 which holds mortgage to seller of machinery purchased for use in permanent 
 building superior to existing real estate mortgage ; Xeufelder v. Third Street & 
 Suburban R. Co. 53 L. R. A. 601, which holds machinery steadied by bolts and 
 screws fastening it to building not fixture as to mortgagee. 
 How fixtnrea determined. 
 
 Cited in Morey v. Hoyt, 62 Conn. 559, 19 L. R. A. 618, 26 Atl. 127, holding in- 
 tention of tenant as to whether machinery intended to be fixture of great impor- 
 tance; Baker v. McClurg, 198 111. 36, 59 L. R. A. 134, 92 Am. St. Rep. 261, 64 N. 
 E. 701, Affirming 96 111. App. 173, holding intention as evidenced by acts and 
 circumstances controlling as to permanency of trade fixtures; Filley v. Chris- 
 topher, 39 Wash. 26, 109 Am. St. Rep. 853, 80 Pac. 834, holding a furnace and 
 boiler together with the radiators and .pipes connected therewith constitute a 
 part of the realty: Pflueger v. Lewis Foundry & Mach. Co. 67 C. C. A. 102, 134 
 Fed. 31. holding a "squeezer" and steam pump used in a steel mill, and weighing 
 37.500 pounds and bolted to a brick base formed a part of the mill: White v. 
 Cincinnati, R. & M. R. Co. 34 Ind. App. 295, 71 N. E. 276, holding machinery 
 permanent in its character and essential to the purpose for which the building 
 is used is a fixture; Hook v. Bolton, 199 Mass. 246, 17 L.R.A. (X.S.) 701, 127 
 
C L.R.A. 249] L. E. A. CASES AS AUTHORITIES. 1048 
 
 Am. St. Rep. 487, 85 N. E. 175, holding, generally, the question whether an 
 article attached to a building belongs to the real estate is a mixed question 
 of law and fact; American Radiator Co. v. Pendleton, 62 Wash. 58. 112 Pac. 
 1117, holding that boiler and radiators attached to hot water heating system 
 are fixtures and subject to mechanic's lien as part of building. 
 
 Cited in footnotes to Leonard v. Clough, 16 L.R.A. 306, which holds barn 
 placed by owner on own land, on stones resting on surface, a fixture; Murray 
 v. Bender, 63 L.R.A. 783, which holds chairs, stage fixtures, and drop curtains 
 annexed to theater to make possible the use of the building, fixtures; Giddings 
 v. Freedley, 65 L.R.A. 327, which holds main belt transmitting power from an 
 engine so annexed to building as to be real estate, to machinery in mill, real 
 estate. 
 
 Cited in notes (10 L.R.A. 722, 723) on what are fixtures; (69 L.R.A. 894) 
 on things placed on land with intention of annexing but never actually attached, 
 as fixtures; (84 Am. St. Rep. 879) on fixtures retaining by agreement the 
 character of personal property. 
 Removable fixtures. 
 
 Cited in Sosman v. Conlon, 57 Mo. App. 31, holding question whether mechan- 
 ic's lien can be filed against theater for stage fittings and scenery dependent on 
 whether furnished with intention of forming part of building; Scannell v. Hub 
 Brewing Co. 178 Mass. 294, 59 N. E. 628, holding mechanic's lien for labor and ma- 
 terials can be established for making and fitting appliances for brewery; Hille- 
 brand v. Nelson, 1 Herdman (Neb.) 788. 95 N. W. 1068, holding portable articles 
 used in brick manufactory not fixtures; Readfield Teleph. & Teleg. Co. v. Cyr, 95 
 Me. 289, 49 Atl. 1047, holding that poles, wires, etc., retain character as chat- 
 tels as between debtor and creditor; McCrillis v. Cole, 25 R. I. 161, 105 Am. 
 St. Rep. 875, 55 Atl. 196, holding fact that property attached to realty for 
 purpose of being permanently used in connection therewith, can be removed 
 without physical injury to the freehold does not change its character as a 
 fixture; Security Trust Co. v. Temple Co. 67 N. J. Eq. 520, 58 Atl. 514, holding 
 scenery manufactured and supplied for use in a theater, to be used in connec- 
 tion with such parts of stage fittings as were permanently attached is construct- 
 ively attached to the freehold. 
 
 Cited in note (9 L. R. A. 700) on tenant's right to remove fixtures. 
 Materiality of Intent. 
 
 Cited in Pioso v. Bitzer, 20 Lane. L. Rev. 157, holding evidence of signer's un- 
 disclosed intent in executing instrument inadmissible; Liquid Carbonic Co. v. 
 Wallace, 219 Pa. 460, 26 L.R.A.(N.S.) 330, 68 Atl. 1021, holding the mutual 
 intent of the parties as gathered from their acts and the circumstances, as well 
 as from their words, controls in tjuestion of permanency of a road; Smith v. 
 Bay State Sav. Bank, 202 Mass. 485, 88 N. E. 1086, holding intention of the 
 owner as to character of propertv annexed to a building is not his secret inten- 
 tion but his intention as manifested by his acts. 
 
 G L. R. A. 252, HARLAND v. UNITED LINES TELEG. CO. 40 Fed. 308. 
 Federal jurisdiction by attachment. 
 
 Cited in Central Trust Co. v. Chattanooga, R. & C. R. Co. 68 Fed. 696, holding 
 jurisdiction over nonresidents not served with process not conferred by U. S. Rev. 
 Stat. 915, U. S. Comp. Stat. 1901, p. 684, giving plaintiffs in Federal courts 
 same remedy by attachment or other process against property as provided by 
 state statute; Wells v. Clark, 136 Fed. 464, holding the United States statutes 
 requiring conformity to the state practice, applies only to matters of practice 
 and procedure, and not to jurisdiction; United States v. Brooke, 184 Fed. 342, 
 
1049 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 257 
 
 holding that action cannot be maintained by United States against nonresident 
 in federal court by attaching defendant's property within jurisdiction without 
 personal service of summons. 
 
 6 L. R. A. 254, KIEL v. JACKSON, 13 Colo. 378, 16 Am. St. Rep. 207, 22 Pac. 
 
 504. 
 Abntter's riijlit to dama&es for Improper use of street. 
 
 Cited in Pueblo v. Strait, 20 Colo. 18, 24 L. R. A. 394, 46 Am. St. Rep. 273, 36 
 Pac. 789, holding construction of viaduct over railroad unreasonable change in 
 street entitling abutter to damages; Gushing- Wetmore Co. v. Gray, 152 Cal. 123, 
 125 Am. St. Rep. 47, 92 Pac. 70, holding an abutting lot owner entitled to 
 damages for obstructions to ingress and egress to quarries on his lot though 
 such obstructions are not immediately in front of his property. 
 
 Cited in notes (9 L. R. A. 100) on use of streets in municipalities; (18 L. R. A. 
 155) on liability of railroad company for obstructing highway crossing; (9 
 L.R.A. (N.S.) 496) on right of landowner to damages for obstruction of street 
 or highway by railroad not adjacent to property; (36 L.R.A. (N.S.) 677, 765) 
 on abutter's right to compensation for railroads in streets. 
 
 Distinguished in Union P. R. Co. v. Foley, 19 Colo. 282, 35 Pac. 542, and Gilbert 
 v. Greeley, S. L. & P. R. Co. 13 Colo. 509, 22 Pac. 814, holding that owner of 
 property abutting on street obstructed by railroad cannot recover for inconven- 
 ience common to public; Fogg v. Nevada-California-Oregon R. Co. 20 Nev. 438, 
 23 Pac. 840, holding that abutting owners suffering no inconvenience not common 
 to public cannot enjoin operation of railroad in street. 
 "What constitutes nuisance. 
 
 Cited in footnote to Chicago G. W. R, Co. v. First M. E. Church, 50 L. R, A. 
 488, which holds water tank in street, and station at which bells constantly rung 
 and whistles blown, within few rods of church, a nuisance. 
 Aleasnre of damages for nuisance. 
 
 Cited in Cleveland, C. C. & St. L. R. Co. v^King, 23 Ind. App. 577, 55 N. E. 875, 
 holding as measure of damages for abatable nuisance, depreciation in rental 
 value; Hollenbeck v. Marion, 116 Iowa, 79, 89 X. W. 210, holding measure of 
 damages for pollution of stream through pasture is depreciation in rental value. 
 Nature of privilege to constitute a franchise. 
 
 Cited in Sayre Newton Lumber Co. v. Union P. R, Co. 87 C. C. A. 619, 158 
 Fed. 15, holding a privilege granted by a city to an ordinary railroad to lay 
 and operate its railroad across or along the streets is never termed a franchise. 
 Injunction against nuisance. 
 
 Cited in note (28 Am. St. Rep. 198) on injunction against nuisance as request 
 of private person. 
 
 6 L. R. A. 257, ROSENBLATT v. PERKINS, 18 Or. 156, 22 Pac. 598. 
 Leases; statute of frauds. 
 
 Cited in Jenning v. Miller, 48 Or. 203, 85 Pac. 517, holding an oral contract 
 for the leasing of real property void under the statute of frauds; Dechenbach 
 v. Rima, 45 Or. 504, 77 Pac. 391, holding a parol lease of real estate from July 
 1, 1903 to Jan. 1, 1906 is void under the statute of frauds; Merchants' State 
 Bank v. Ruettell, 12 N. D. 525, 97 N. W. 853, holding oral contract is not 
 enforceable unless its invalidity is waived by acting upon it and executing it. 
 
 Cited in notes (7 L.R.A. 671) on validity of leases under statute of frauds; 
 (16 Am. St. Rep. 764; 17 Am. St. Rep. 752) on effect of parol lease for more 
 than a year. 
 
6 L.R.A. 257] L. R. A. CASES AS AUTHORITIES. 1050 
 
 Tenancy from year to year. 
 
 Cited in Phelan v. Anderson, 118 Cal. 5C6, 50 Pac. (>S5, holding lease from year 
 to year where rent for agricultural land paid annually and accepted as annual 
 rent; Flack v. Barlow, 110 Md. 164, 72 Atl. 678, 17 A. & E. Ann. Cas. 538, 
 holding periodical payments of a yearly rent, either in one or more instalments, 
 accepted by the landlord, makes Ihe tenancy one from year to year. 
 
 Cited in notes (8 L.R.A. 221) on how tenancy from year to year created: 
 (15 Eng. Rul. Cas. 599) on person entering into possession under lease within 
 statute of frauds as a tenant from year to year. 
 Effect of tenant holding- over. 
 
 Cited in footnotes to Byxbee v. Blake, 57 L. R. A. 222, which holds tenant liable 
 for another month's rent, by keeping keys and remaining in possession five days 
 to clean up rubbish; Valentine v. Healey, 43 L. R. A. 667, which holds lease not 
 renewed by temporary retention under permit by tenant in common, who is mem- 
 ber of lessee firm. 
 
 Cited in note (120 Am. St. Rep. 42, 43) on effect of holding over after 
 expiration of lease. 
 Termination of tenancy. 
 
 Cited in Watkins v. Balch, 41 Wash. 312, 3 L.R.A.(N.S.) 854, 83 Pac. 321, 
 folding an oral lease for a term of years may be terminated, as the statute 
 provides, by written notice given at the prescribed time before the end of such 
 period. 
 
 Distinguished in Forsythe v. Pogue, 25 Or. 483, 36 Pac. 571, holding tenancy 
 at will terminable on twenty days' notice to quit, if rent payable in periods of less 
 than twenty days. 
 Appeal from judgments inforcible entry or detainer cases. 
 
 Cited in Wolfer v. Hurst, 47 Or. 160, 80 Pac. 419, 8 A. & E. Ann. Cas. 725, 
 liolding appeal lies from a judgment of a justice of the peace in a forcible entry 
 or detainer case under the statute. 
 
 6 L. R. A. 259, CHURCH v. PORTLAND, 18 Or. 73, 22 Pac. 528. 
 Dedication to public use. 
 
 Cited in Conrad v. West End Hotel & Land Co. 126 N. C. 780, 36 S. E. 282, 
 holding that reference in deed to registered plat constitutes irrevocable dedication 
 of streets and public grounds marked on plat. 
 
 Cited in footnotes to Hogue v. Albina, 10 L. R. A. 673, which holds dedication 
 not presumed; Campbell v. Kansas City, 10 L. R. A. 593, which holds donor of 
 land for graveyard entitled to same after abandonment by public; Sturmer v. 
 County Court, 36 L. R. A. 300, which holds public square dedicated when used 
 for more than eighty years as such ; Lake Erie & W. R. Co. v. Whitham, 28 L. R. 
 A. 612, which denies right of railroad to acquire right of way by common-law 
 dedication. 
 
 Cited in note (31 L.R.A. (N.S.) 1029) on dedication of land in which third 
 persons have interest. 
 Protection of parks from forbidden uses. 
 
 Cited in Mclntyre v. El Paso County, 15 Colo. App. 84, 61 Pac. 237, holding land 
 dedicated to city for public park held by it as trustee for purposes of dedication, 
 and not to be used for erection of courthouse: Rowzee v. Pierce, 75 Miss. 858, 40 
 L. R. A. 403, 65 Am. St. Rep. 625, 23 So. 307, holding erection of schoolhouse on 
 land dedicated for "public ornamental park" not consistent with purposes of ded- 
 ication; Douglass v. Montgomery, 118 Ala. 616, 43 L. R. A. 382, 24 So. 745 (dis- 
 senting opinion), majority holding that adjacent proprietor may enjoin city from 
 
1051 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 2G8 
 
 diverting park from purposes of dedication; Wilkins v. Chicago, St. L. & X. 
 O. R. Co. 110 Tenn. 450, 75 S. W. 1026, holding property dedicated as a "public 
 promenade" cannot be contracted away by the municipal authorities, and equity 
 will enforce the execution of such a trust. 
 
 Cited in footnotes to Douglass v. Montgomery, 43 L.R.A. 376, which denies 
 city's power to grant right to lay railroad across public park and then abandon 
 it and confirm reversioner's title; Riverside v. Maclean, 66 L.R.A. 288, which 
 denies right to devote to establishment of public highway portion of tract of 
 land dedicated for public park where result will be to cut the tract into small 
 parcels and destroy their utility for the original purpose intended. 
 
 Cited in notes (13 L.R.A. 252) on dedication of lands for public parks; (25 
 L.R.A. (X.S.) 983) on what use of squares, paries, or commons is consistent 
 with purpose of dedication. 
 Protection of easement. 
 
 Cited in Collins v. Asheville Land Co. 128 X. C. 569, 83 Am. St. Rep. 720, 39 
 S. E. 21 (dissenting opinion), majority holding purchaser of lot with reference to 
 plat entitled to have kept open all streets represented. 
 
 Cited in footnote to Ives v. Edison, 50 L. R. A. 134, which sustains right of 
 owner of easement to injunction to compel restoration of stairway. 
 
 6 L. R. A. 266, TRUE v. DAVIS, 133 111. 522, 22 N. E. 410. 
 Township organization. 
 
 Cited in People ex rel. Deneen v. Martin, 178 111. 622, 53 N. E. 309, holding 
 power to legislate by local laws upon township division abrogated by Constitu- 
 tion; Cicero v. Chicago, 182 111. 309, 55 N. E. 351, holding that legislature may 
 permit division of town by vote of majority of inhabitants; Cicero Lumber Co. v. 
 Cicero, 176 111. 25, 42 L. R. A. 703, 68 Am. St. Rep. 155, 51 N. E. 758, holding 
 act empowering cities to set aside streets for pleasure driveways valid. 
 Annexation of one town to another. 
 
 Cited in East St. Louis v. Rhein, 139 111. 118, 28 N. E. 1089, holding annexation 
 of village to city not operate to annex portion of town in which it lay. 
 
 Cited in notes (27 L. R. A. 745) on power of legislature to annex territory to 
 municipality; (11 L. R, A. 780) on power to extend city limits; (23 L. R. A. 404) 
 on what constitutes "indebtedness" within meaning of constitutional and statu- 
 tory restrictions of municipal indebtedness, when municipalities joined. 
 Changre of boundaries of municipal corporations. 
 
 Cited in Chicago v. Cicero, 210 111. 294, 71 X. E. 356, holding the legisla- 
 ture may change boundaries of a sanitary district as it may deem best to pro- 
 mote the public welfare; State ex rel. Pritchard v. Grefe, 139 Iowa, 28, 117 N. 
 W. 13, holding the general assembly, in absence of constitutional limitation, 
 may enlarge or diminish the powers of school districts, and divide or consolidate 
 two or more districts into one. 
 
 <3 L. R. A. 268, LAKE VIEW v. TATE, 130 111. 247, 22 N. E. 791. 
 Ordinance limiting; speed of trains. 
 
 Cited in footnote to Chicago & A. R. Co. v. Carlinville, 60 L. R. A. 391, which 
 sn-tnins ordinance limiting speed of interstate trains to 10 miles an hour within 
 city limits. 
 
 Cited in notes (7 L. R. A. 318) on duty of railroad to slacken speed; (21 L. R. 
 A. 796) on constitutionality of statutes restricting contracts and business: (17 
 L.R.A. (X.S.) 563) on power of municipality to regulate speed of, and signals 
 from, trains at crossings. 
 
6 L.R.A. 268) L. R. A. CASES AS AUTHORITIES. 1052. 
 
 Municipal ordinances; discrimination. 
 
 Cited in Cairo v. Feuchter, 159 111. 162, 42 X. E. 308, holding license ordinance- 
 discriminating between wholesale and retail liquor dealers void; Hibbard v. Chi- 
 cago, 59 111. App. 473, holding ordinance applying to one place and person, per- 
 mitting erection of awning in street, void; People ex rel. Ferris Wheel Co. v. 
 Swift, 60 111. App. 398, holding ordinance prohibiting granting license in certain 
 district, unless upon petition of majority of voters, void; Peoria v. Gugenheim, 61 
 111. App. 379, holding license ordinance discriminating between persons of same- 
 class invalid; F.x parte Bohen, 115 Cal. 378, 36 L. R. A. 622, 47 Pac. 55, holding 
 ordinance prohibiting burials in cemetery except in lots already purchased for 
 burial purposes, void. 
 
 Cited in note (123 Am. St. Rep. 52) on test of validity of municipal ordinance 
 as denying equal protection of the laws. 
 
 Distinguished in Chicago v. Brownell, 146 111. 68, 34 N. E. 595, holding ordi- 
 nance prohibiting pool-selling, excepting from operation certain localities, not void: 
 for discrimination. 
 Unreasonableness. 
 
 Cited in Frost v. Chicago, 178 111. 253, 49 L. R. A. 658, 69 Am. St. Rep. 301, 
 52 N. E. 869, holding ordinance prohibiting dealers from covering fruit baskets 
 with colored netting void for unreasonableness; Wice v. Chicago & N. W. R. Co. 
 193 111. 356, 56 L. R. A. 271, 61 N. E. 1084, holding ordinance forbidding pas- 
 sengers to board or leave moving train without authority void for unreason- 
 ableness; Bush v. Peoria, 215 111. 517, 74 N. E. 797, holding ordinances, unrea- 
 sonable, unjust and oppressive will be declared invalid; Murphy v. Chicago, R. 
 I. & P. R. Co. 247 111. 618, 93 N. E. 381; Chicago v. Pittsburg, C. C. & St. L. 
 R. Co. 244 111. 227, 135 Am. St. Rep. 316, 91 N. E. 422, holding that ordinance 
 requiring elevation of railroad tracks must be reasonable or it will be invalid. 
 
 Cited in note (70 L.R.A. 853) on power of municipality to compel change 
 of grade of railway in street. 
 Reasonableness question for conrt. 
 
 Cited in Hawes v. Chicago, 158 111. 658, 30 L. R. A. 227, 42 N. E. 373, holding- 
 reasonableness of ordinance requiring substitution of cement for plank-walk ques- 
 tion for court, in light of circumstances; McFarlane v. Chicago, 185 111. 252, 57 
 N. E. 12, holding reasonableness of ordinance requiring substitution of brick for 
 cedar block pavement question for court; Chicago & X. W. R. Co. v. Elmhurst, 
 165 111. 152, 46 N. E. 437, holding reasonableness of special taxation ordinance 
 question for court; Evison v. Chicago, St. P. M. & 0. R. Co. 45 Minn. 375, 11 L. 
 R. A. 437, 48 N. W. 6, holding reasonableness of ordinance regulating speed of 
 trains question for court; Chicago G. W. R. Co. v. Leaf River, 135 111. App. 
 565, holding the reasonableness of notice is a question for the court. 
 Presumption of reasonableness. 
 
 Cited in People ex rel. Morrison v. Cregier, 138 111. 414, 28 N. E. 812, holding 
 ordinance prohibiting sale of liquor in certain districts presumed reasonable until 
 otherwise shown; Harris v. People, 218 111. 443, 75 N. E. 1012; Woolf v. Sulli- 
 van, 224 111. 520, 79 N. E. 646, holding while municipal ordinances to be valid 
 must be reasonable, the presumption is in favor of their validity. 
 
 Distinguished in Myers v. Chicago, 196 111. 593, 63 X. E. 1037, holding water- 
 line extension ordinance not unreasonable in absence of proof that assessments ex- 
 ceed benefits. 
 Corporate by-laws mnst be reasonable. 
 
 Cited in Vierling v. Mechanics' & T. Sav. Loan & Bldg. Asso. 179 111. 527, 53 N. 
 E. 979, holding that by-laws of loan association in pursuance of charter power to- 
 
1053 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 270 
 
 impose fines must be reasonable; Chicago & A. R, Co. v. Carlinville, 200 111. 319, 
 <50 L. R. A. 393, 93 Am. St. Rep. 190, 65 X. E. 730, Affirming, 103 111. App. 255, 
 holding delegated power to pass ordinance limiting speed of trains must be rea- 
 sonably exercised. 
 
 6 L. R, A. 270, CULVER v. STREATOR, 130 111. 238, 22 N. E. 810. 
 Liability of cities and villages for torts of officials. 
 
 Cited in Blake v. Pontiac, 49 111. App. 550, holding city not liable for illegal 
 incarceration in calaboose; Kansas City v. Lemen, 6 C. C. A. 631, 12 U. S. App. 
 40, 57 Fed. 908, holding city not liable for the wrongful closing of exhibition by 
 mayor and police; Whitfield v. Paris, 84 Tex. 433, 15 L. R. A. 784, 31 Am. St. Rep. 
 69, 19 S. W. 566, holding city not liable for accidental shooting by officer enforc- 
 ing ordinance against unmuzzled dogs; Givens v. Paris, 5 Tex. Civ. App. 708, 
 24 S. W. 974, holding city not liable for injuries committed by cow being driven 
 through street by policeman appointed to keep cattle out of streets; Doty v. Port 
 Jervis, 23 Misc. 315, 52 X. Y. Supp. 57, holding village not liable for homicide 
 by police officer appointed by president; Stevens v. Muskegon, 111 Mich. 79, 36 
 L. R. A. 780, 69 N. W. 227, holding city not liable for enforcing ordinances inter- 
 fering with use of private sewer constructed by its consent in street; Chicago v. 
 \Yilliams, 182 111. 138, 55 X. E. 123, holding city not liable for wrongful arrest 
 made by its police officers; Gregg v. Hatcher, 94 Ark. 57, 27 L.R.A. (X.S.) 140, 
 125 S. W. 1007, 21 Ann. Gas. 982, holding that municipality is not liable for 
 acts of officers in wrongfully impounding animals running at large; Evans v. 
 Kankakee, 231 111. 227, 13 L.R,A.(X.S.) 1192, 83 N. E. 223, holding city is not 
 liable for the acts of its officers in attempting to enforce police regulations; 
 Tollefson v. Ottawa, 228 111. 136, 11 L.R.A. (X.S.) 992, 81 X. E. 823, holding 
 it is not liable for the negligent acts of its agents or servants engaged in 
 executing police ordinances and regulations; Evans v. Kankakee, 132 111. App. 
 491, holding in governmental matters the doctrine of respondeat superior does 
 not apply to municipalities, except in their corporate affairs; Hanrahan v. Chi- 
 cago, 145 111. App. 42, holding a municipality is not liable for failure to remove 
 a defective awning extending over part of street; Clarke v. Chicago, 159 111. 
 App. 24, holding that city is not liable for acts of mayor and chief of police 
 in attempting to enforce police power of city. 
 
 Cited in footnotes to Snider v. St. Paul, 18 L. R. A. 151, which holds city not 
 liable for negligence of agents in providing and maintaining city hall ; Potter v. 
 Jones, 12 L. R. A. 160, which holds city not liable for negligence in blasting for 
 echoolhouse; Curran v. Boston, 8 L. R. A. 243, which holds city not liable for 
 negligence of workhouse officers. 
 
 Cited in notes (9 L. R. A. 208, 210) on liability of municipalities for acts or 
 omissions of its officers or agents; (15 L. R. A. 783) on liability of municipality 
 for acts of policemen; (44 L. R. A. 797) on liability of municipalities for false 
 imprisonment and unlawful arrest; (1 L.R.A. (X.S. ) 666) on distinction between 
 private and public functions of municipality with respect to liability for dam- 
 ^ges; (12 L.R.A. (X.S. ) 539) on municipal liability for torts of police officers. 
 
 Distinguished in Chicago v. Selz, S. & Co. 202 111. 550, 67 X. E. 386, holding city 
 liable for negligence in repairing water system used as source of revenue as well 
 as for fire protection. 
 Validity of ordinance. 
 
 Cited in Chicago & A. R. Co. v. Carlinville, 200 111. 322, 60 L. R. A. 394, 93 Am. 
 St. Rep. 190, 65 X. E. 730, sustaining ordinance limiting speed of train through 
 city to 10 miles an hour. 
 
L.R.A. 270] L. E. A. CASES AS AUTHORITIES. 1U54 
 
 Distinguished in Wice v. Chicago & X. W. R. Co. 193 111. 353, 56 L. R. A. 269, 
 61 N. E. 1084, Reversing 93 111. App. 266, holding ordinarice forbidding getting on 
 or off moving cars not within police power delegated to city. 
 
 6 L. R. A. 271, ALSOP v. SOUTHERX EXP. CO. 104 N. C. 278, 10 S. E. 297. 
 Refusal by carrier to accept shipment. 
 
 Cited in State ex rel. Carter v. Wilmington & W. R. Co. 126 N. C. 442, 36 S. E. 
 14, holding penalties for refusal to accept cattle for shipment recoverable by 
 any one. 
 Duty of carrier to accept freight for transportation. 
 
 Cited in Burlington Lumber Co. v. Southern R. Co. 152 X. C. 73, 67 S. E, 
 167, holding the duty of carrier to receive freight "whenever tendered" was a 
 common law duty; Reid v. Southern R. Co. 153 N. C. 492, 69 S. E. 618, to the 
 point that common carrier of freight was required at common law to receive 
 freight when tendered. 
 
 Cited in note (61 Am. St. Rep. 362) on duty of express company to receive 
 goods for transportation. 
 
 Disapproved in Platt v. Lecocq, 15 L.R.A. (N.S.) 564, 85 C. C. A. 621, 158 
 Fed. 729, holding an express company may rightfully refuse to receive packages 
 of specie and currency from a bank with a burglary proof vault for transporta- 
 tion the day preceding departure of only train it can be carried on. 
 Sufficiency of tender. 
 
 Cited in Garrison v. Southern R. Co. 150 N. C. 579, 64 S. E. 578, holding 
 the freight must be tendered at a regular depot and within business hours. 
 Duty of delivery. 
 
 Cited in United States Exp. Co. v. State, 164 Ind. 203, 73 N. E. 101, holding 
 it the duty of a carrier by express to deliver packages received by it to the 
 consignee at his residence or place of business. 
 
 Cited in note (61 Am. St. Rep. 374, 375) on duty of express company as to 
 delivery to consignee. 
 
 6 L. R. A. 278, CAMPBELL v. ROTERING, 42 Minn. 115, 43 N. W. 795. 
 Liability on bond. 
 
 Cited in Walsh v. Featherstone, 67 Minn. 105, 69 N. W. 811, holding indemnity 
 bond not agreement for benefit of third party in whose favor liability incurred; 
 Wheeler v. Paterson, 64 Minn. 233, 66 N. W. 964, holding replevin bond not void 
 because name of one surety omitted from body, where it is apparent on its face 
 that he is liable; Wilcox Lumber Co. v. School Dist. No. 268, 103 Minn. 46, 114 
 N. W. 262, on the analogy between a contractor's bond, and an indemnity con- 
 tract against the collection or enforcement of negotiable paper. 
 
 Distinguished in Klein v. Funk, 82 Minn. 8, 84 X. W. 460, holding rule that 
 surety must pay debt before bringing action inapplicable in action by surety on 
 third person's note given as collateral security. 
 
 6 L. R. A. 280, COLLINS v. CHARTIERS VALLEY GAS CO. 131 Pa. 143, 17 Am. 
 St. Rep. 791, 18 Atl. 1012. 
 
 Judgment upon venire de novo affirmed in 139 Pa. 124, 27 W. N. C. 218, 21 Atl. 
 147. 
 Pollution of fresh tvater. 
 
 Cited in Collins v. Chartiers Valley Gas Co. 139 Pa. 124, 27 W. N. C. 219, 21 
 Atl. 147, holding one drilling for gas liable for injury to fresh water well by want 
 of reasonable care to prevent mingling of salt water; Pfeiffer v. Brown, 165 Pa. 
 
1055 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 280 
 
 273, 35 W. X. C. 483, 44 Am. St. Rep. 660, 30 Atl. 844, holding one who pumps 
 salt water so that it flows upon another's lands liable for changing fresh to salt 
 water; Long v. Louisville & X. R. Co. 128 Ky. 31, 13 L.R.A. (N.S.) 1064, 107 
 S. W. 203, 16 A. & E. Ann. Cas. 673, holding one burying the body of a dead 
 animal on his own land is not liable for pollution of waters of a spring unless 
 it appears such results could have been anticipated by one of ordinary prudence. 
 
 Cited in note (34 L.R.A. (X.S.) 49) on underground pollution of water. 
 As nuisance. 
 
 Cited in Rarick v. Smith, 17 Pa. Co. Ct. 631, 5 Pa. Dist. R. 532, holding pollu- 
 tion of stream by manufacture of dynamite from ingredients brought from 
 abroad, nuisance as to lower owner. 
 
 Cited in note (8 L. R. A. 832) as to private right of action for nuisance. 
 Rights in subterranean waters or minerals. 
 
 Cited in Stillwater Water Co. v. Farmer, 89 Minn. 67, 60 L. R. A. 879, 99 Am. 
 St. Rep. 541, 93 X. W. 907, denying land owner's right to waste percolating wa- 
 ters, injuring another's spring; Tampa Waterworks Co.^v. Cline, 37 Fla. 601, 33 
 L. R. A. 382, 53 Am. St. Rep. 262, 20 So. 780, holding that land owner may open 
 up channel of subsurface water if not diverted or polluted; Barclay v. Abraham, 
 121 Iowa, 622, 64 L. R. A. 256, 96 N. W. 1080, holding person asserting existence 
 of subterranean stream must show its channel reasonably ascertainable ; Katz v. 
 Walkinshaw, 141 Cal. 124, 64 L. R. A. 249, 99 Am. St. Rep. 766, 74 Pac. 766, de- 
 nying right to remove percolating water through artesian well for irrigation of 
 distant lands, to injury of neighbors; Williamson v. Jones, 39 W. Va. 257, 25 L. 
 R. A. 233, 19 S. E. 436, holding removal of petroleum in place is disherison of 
 remainderman; Western Maryland R. Co. v. Martin, 110 Md. 565, 73 Atl. 267, 
 holding there is no difference in principle between rights incident to streams 
 of water upon the surface and those flowing beneath when the latter move in 
 known and well-defined channels; Erickson v. Crookston Waterworks, Power & 
 Light Co. 105 Minn. 197, 17 L.R.A.(X.S.) 659, 117 N. W. 435, holding the dis- 
 tinction between rights in surface and underground waters, is not founded upon 
 fact of location above or below ground, but on the fact of knowledge with refer- 
 ence thereto; Bair v. Palm, 16 Pa. Dist. R. 488, holding the upper owner has 
 no right for mere purpose of appropriation to divert a defined subterranean 
 stream to the injury of a lower owner; Excelsior Refining Co. v. Sun Oil Co. 
 11 Del. Co. Rep. 305, holding that no right of action arises for percolating 
 waters, unless it is shown that they have caused injuries to party's property; 
 Mohn v. Bollman, 26 Lane. L. Rev. 279, holding that owner cannot acquire by 
 prescription right to continuous flow through neighbor's land of undefined sub- 
 terranean stream. 
 
 Cited in notes (19 L.R.A. 96) on rights in subterranean waters; (67 Am. 
 St. Rep. 668) on what are percolating waters; (1 Eng. Rul. Cas. 762) on non- 
 liability for diminution of water on adjoining land by pumping from well on 
 one's own land; (2 Brit. Rul. Cas. 99.5) on character of water flowing under- 
 ground in defined but unknown channel. 
 
 Distinguished in O'Xeil v. Ben Avon, 30 Pittsb. L. J. N. S. 249, 9 Pa. Dist. 
 R. 131, holding injury to percolating spring by highway improvement not sub- 
 ject of damages ; Kelley v. Ohio Oil Co. 57 Ohio St. 329, 39 L. R. A. 768, 63 Am. 
 St. Rep. 721, 49 X. E. 399, holding that owner of land has right to oil taken from 
 wells thereon. 
 TTse of one's own property negligrenee. 
 
 Cited in Cleveland Terminal Valley R. Co. v. Marsh, 63 Ohio St. 249, 52 L. R. 
 A. 147, 58 X. E. 821, denying company's liability to boy employed by station agent 
 
6 L.R.A. 280] L. R. A. CASES AS AUTHORITIES. 1056 
 
 without its knowledge to attend lamps, and injured by explosion of torpedo on 
 track; Strauss v. Allentown, 215 Pa. 98, 63 Atl. 1073, 7 A. & E. Ann. Cas. 686, 
 holding where the use of one's own land is proper and the damage to another 
 unavoidable, it is damnum absque injuria. 
 
 Cited in note (25 Eng. Rul. Cas. 83) on liability for wilfully and intentionally 
 harming another in exercise of a legal right. 
 Water rights and uses. 
 
 Cited in Smithko v. Pittsburgh & W. R. Co. 5 Pa. Dist. R. 544, 27 Pittsb. L. J. 
 N. S. 18, finding taking of land for reservoir of surface water "necessary" to ope- 
 ration of railroad, where water in wells unfit; Davidson v. Shenandoah Borough, 
 38 Pa. Co. Ct. 700, to the point that damages suffered by diversion of water from 
 party's land may be recovered in action at law. 
 
 6 L. R. A. 283, HOLMES v. TURNERS FALLS LUMBER CO. 150 Mass. 535, 23 
 
 N. E. 305. 
 Reference; when permissible. 
 
 Cited in Graham v. Lord, 170 Mass. 3, 48 N. E. 845, holding that mechanic's 
 lien proceeding may be referred. 
 Appointment of auditor; practice in. equity. 
 
 Cited in Falmouth v. Falmouth Water Co. 180 Mass. 328, 62 N. E. 255, holding 
 auditor's report in equity suit regarded as master's report; McArthur Bros. Co. 
 v. Com. 197 Mass. 141, 83 X. E. 334, holding the authority of courts to appoint 
 auditors is largely created by statute; Wilson v. American Circular Loom Co. 
 109 C. C. A. 600, 187 Fed. 841, holding that report of auditor appointed in 
 action at law is admissible in trial of case before jury. 
 Evidence ; declarations of corporate officer. 
 
 Cited in Nash v. Minnesota Title Ins. & T. Co. 159 Mass. 444, 34 N. E. 625, 
 holding declarations of president as to title of land covered by trust mortgage 
 to corporation binding upon corporation. 
 \<l niixslliilit y of declarations as to ownership of land. 
 
 Cited in Abbott v. Walker, 204 Mass. 73, 26 L.R.A. (N.S.) 815, 90 N. E. 405, 
 holding declarations as to title of land where made by owner while upon it 
 are admissible against her and against those claiming under her; Goyette v. 
 Keenan, 196 Mass. 420, 82 N. E. 427, holding evidence properly excluded where 
 it does not appear the declarations were made upon the land. 
 Possession adverse to mortgagee. 
 
 Cited in Anthony v. Anthony, 161 Mass. 351, 37 N. E. 386, holding occupancy by 
 mortgagor's widow under lease from mortgagee not adverse; Long v. Richards, 
 170 Mass. 128, 64 Am. St. Rep. 281, 48 N. E. 1083, holding possession of first 
 mortgagee under mortgage not disseise second; Skinner v. Hale, 76 Conn. 228, 
 56 Atl. 524, holding the possession is never adverse until the mortgagor either 
 disclaims holding under or subject to mortgage and asserts title in himself 
 alone, or character of his possession is such as to give notice that he asserts 
 title in himself alone. 
 
 Cited in note (1 L.R.A. (N.S.) 1037) on adverse possession by mortgagor or 
 grantee against mortgagee. 
 
 6 L. R. A. 290, PORTLAND LUMBERING & MFG. CO. v. EAST PORTLAND, 18 
 
 Or. 21, 22 Pac. 536. 
 Municipal corporations; power to make contracts. 
 
 Cited in Townsend Gas & Electric Co. v. Port Townsend, 19 Wash. 409, 53 Pac. 
 551, holding charter provision for annual tax for lighting streets does not restrict 
 
1057 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 301 
 
 city's power to contract to annual periods; Shipley v. Hacheney, 34 Or. 308, 55 
 Pac. 971, holding city may contract to pay interest on overdue warrants for pay- 
 ment of debts. 
 
 Cited in notes (6 L. R. A. 318) on liability of municipal corporation on its 
 contracts; (12 L. R. A. 168) on estoppel of corporation to deny liability on its 
 contracts. 
 Ultra vires. 
 
 Cited in Portland v. Bituminous Paving & Improv. Co. 33 Or. 321, 44 L. R. A. 
 533, 72 Am. St. Rep. 713, 52 Pac. 28, holding bond to secure performance of ultra 
 vires contract not enforceable, though contract fully executed by city; Clapp v. 
 Titu>. 138 Mich. 43, 100 N. W. 1005, holding where a conflict between the presi- 
 dent of a village and council occurred, the council could, temporarily at least, 
 provide for the care of the village property. 
 
 Cited in footnote to Bath Gaslight Co. v. Claffy, 36 L. R. A. 664, which denies 
 right of lessee of corporation to escape payment of rent on ground that law ultra 
 vires. 
 
 Cited in note (22 Am. St. Rep. 768) on ultra vires contract of municipality. 
 Liability where authority is irregularly exercised. 
 
 Cited in Soule v. Seattle, 6 Wash. 317, 33 Pac. 384, holding city failing to levy 
 special assessment liable for street improvements; Portland v. Bituminous Paving 
 & Improv. Co. 33 Or. 317, 44 L. R. A. 531, 72 Am. St. Rep. 713, 62 Pac. 28, holding 
 illegality of paving assessment does not invalidate contractor's bond to city; 
 Pine Tree Lumber Co. v. Fargo, 12 X. D. 377, 96 X. W. 357, holding where a 
 city diverts funds to be raised by special assessment to satisfy warrants issued 
 on such fund, it is liable in damages for breach of its contract. 
 
 Cited in note (32 L.R.A. (X.S.) 168) on liability of municipality failing to 
 .enforce assessments for improvements. 
 
 Criticized in German-American Sav. Bank v. Spokane, 17 Wash. 325, 38 L. R. 
 A. 262, 49 Pac. 542, holding delay in levying special tax for street improvements 
 will not render city liable. 
 
 G L. R. A. 301, MOULTOX v. STATE, 88 Ala. 116, 6 So. 758. 
 
 Followed without discussion in King v. State, 89 Ala. 149, 7 So. 750. 
 Evidence; proof of character of party or witness. 
 
 Cited in Evans v. State, 109 Ala. 19, 19 So. 535; Lowery v. State, 98 Ala. 49, 13 
 So. 498; Thompson v. State, 100 Ala. 71, 14 So. 878, holding character, whether 
 good or bad, provable only by evidence of general reputation ; Morgan v. State, 
 88 Ala. 224, 6 So. 761, holding particular acts of misconduct by defendant, on 
 trial for assault with intent to kill, not admissible; Walker v. State, 91 Ala. 80, 
 9 So. 87, holding that good character of defendant on trial for murder cannot 
 be shown by proof of particular acts; Smith v. State. 88 Ala. 77, 7 So. 52, holding 
 inquiry as to character or reputation of witness must not extend to proof of par- 
 ticular acts within knowledge of impeaching witness: Way v. State, 155 Ala. 
 63, 46 So. 273, holding the character witness cannot testify as to particular 
 acts and conduct; Sweatt v. State. 156 Ala. 88, 47 So. 194, holding immoral 
 conduct in any one particular cannot be shown though it has a bearing on 
 question of general character. 
 
 Cited in note (14 L.R.A. (X.S.) 692. 695, 696, 745) on evidence of specific 
 instances to prove character. 
 Cross-examination respecting: character. 
 
 Cited in Smith v. State, 103 Ala. 70, 15 So. 866, and Goodwin v. State, 102 Ala. 
 08, 15 So. 571, holding that state may cross-examine witnesses as to having heard 
 L.R.A. Au. Vol. L 67. 
 
6 L.R.A. 301] L. R. A. CASES AS AUTHORITIES. 1058 
 
 c.l specific acts of violence, where defendant's character in issue; Carson v. State, 
 128 Ala. 60, 29 So. 608, holding, when character of defendant for peace and quiet 
 in issue in murder case, state may cross-examine witnesses as to having heard of 
 defendant getting drunk and carrying concealed weapons; Hawes v. State, 88 Ala. 
 71, 7 So. 302, holding evidence that witness had heard of difficulties between de- 
 fendant and wife, for murder of whom he was on trial, admissible on cross-exam- 
 ination; Jackson v. State, 106 Ala. 17, 17 So. 333, holding evidence of bad repu- 
 tation of state's witness cannot be rebutted by testimony as to opinion of his 
 credibility, based upon personal dealings with him; Garrett v. State, 97 A'a. 25. 
 14 So. 327, holding state's witness in murder case cannot be cross-examined as to 
 act of deceased in chasing man with hot horseshoe; Williams v. State. 144 Ala. 
 18, 40 So. 405, holding where witness on direct examination testifies that de- 
 fendant's character is good, he may on cross-examination be asked if he ever 
 heard of a certain specific act involving moral turpitude; Andrews v. State, 159 
 Ala. 25, 48 So. 858. holding for the purpose of testing the credibility or accuracy 
 of the character of witness, he may be asked, on cross-examination, whether or 
 not he has heard of particular acts; Wray v. State, 2 Ala. App. 142, 57 So. 
 144, holding that cross-examination of prosecuting witness cannot be extended 
 to immaterial matters. 
 
 Cited in note (20 L. R. A. 615) on cross-examination of witnesses. 
 
 6 L. R. A. 303, PEOPLE ex rel. PLATT v. WEMPLE, 117 X. Y. 136, 2 Inters. 
 
 Com. Rep. 735, 22 N. E. 1046. 
 Joint stock companies and partnership associations as corporations. 
 
 Cited in People ex rel. Winchester v. Coleman, 133 N. Y. 283, 16 L. R. A. 184, 
 footnote p. 183, 31 N. E. 96, Affirming 37 N. Y. S. R. 120, 13 N. Y. Supp. 833, 
 holding joint stock company, having attributes of corporate body, not within stat- 
 ute making all "stock corporations" deriving income from capital subject to tax 
 upon capital; Andrews Bros. Co. v. Youngstown Coke Co. 30 C. C. A. 302, 58 U. 
 S. App. 444, 86 Fed. 594, holding "partnership association" organized under au- 
 thority of statute, and possessing attributes of corporate body, corporation within 
 jurisdictional requirements as to diversity of citizenship in Federal courts; Ray- 
 mond v. Colton, 43 C. C. A. 508, 104 Fed. 22C, and Adams Exp. Co. v. State, 55 
 Ohio St. 78, 44 N. E. 506, holding individual liability of members of joint stock 
 company does not destroy character as corporation; Snyder v. Lindsey, 92 Hun, 
 433,36 X. Y. Supp. 1037, holding, where contract under which association organized 
 leaves members personally liable to creditors, it is not corporation requiring ac- 
 tion for dissolution to be brought by attorney general; Edgeworth v. Wood, 58 X. 
 J. L. 466, 33 Atl. 940, holding United States Express Company an incorporated 
 company within statute permitting corporations to be sued in name of president 
 or treasurer; Lane v. Albertson, 78 App. Div. 616, 79 N. Y. Supp. 947, holding 
 transfer of stock in joint stock association to legatee not within clause in articles 
 giving association first option to purchase stock sold or transferred: Colton v. 
 Raymond, 41 Misc. 583, 85 X. Y. Supp. 210, holding rights of stockholder in 
 joint stock association more like partnership than corporation stockholder's 
 rights; Bishop v. Bishop, 81 Conn. 526, 71 Atl. 583, holding express companies 
 organized as joint-stock associations and possessing the element of personal lia- 
 bility are held by the Xew York courts to almost the full measure of corporate 
 attributes; Re Hatt, 57 Misc. 323, 108 X. Y. Supp. 468, holding the United 
 States Express Company was formed under the state statutes, whether it be 
 termed a corporation, a joint-stock company, or an association; Hibbs v. Brown. 
 190 X. Y. 178, 82 X. E. 1108, on similarity of joint-stock associations to cor- 
 porations. 
 
1059 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 308 
 
 Cited in footnotes to Rouse, H. & Co. v. Donovan. 27 L. R. A. 577, which holds 
 valid, provision for execution against limited partners for unpaid subscriptions 
 after return of execution against partnership; Edwards v. Warren Linoline & Gas- 
 oline Works, 38 L. R. A. 791, which holds partnership association organized under 
 hnvs of Pennsylvania regarded as partnership instead of corporation in Massa- 
 chusetts; State ex rel. Railroad & Warehouse Commission v. United States Exp. 
 Co. 50 L. R. A. 667, which sustains state's right to require information as to busi- 
 ness within state, of unincorporated express company of another state; State ex 
 rel. Railroad & W. Commission v. Adams Exp. Co. 38 L. R, A. 225, which holds 
 service on nonresident joint stock association properly made on local agent. 
 Taxation of corporations and associations. 
 
 Cited in Re Jones, 172 N. Y. 584, 60 L. R. A. 479, footnote p. 476, 65 N. E. 570, 
 which holds shares in joint stock company owning real estate only, personalty in 
 applying transfer tax law; Re Jones, 69 App. Liv. 246, 74 X. Y. Supp. 702 (dis- 
 senting opinion), majority holding beneficial interest 01 heir of deceased member 
 of joint stock association, in company's real estate standing in name of president, 
 is real estate not subject to transfer tax. 
 
 Cited in footnotes to Vermont & (J. R. Co. v. Vermont C. R. Co. 10 L. R. A. 562, 
 which holds railroad lessor liable for gross earnings tax; San Francisco v. West- 
 ern U. Teleg. Co. 17 L. R. A. 301, which holds state tax on telegraph franchise 
 void; State Tide Water Pipe Co., Prosecutor, v. State Board, 27 L. R. A. 684, 
 which holds limited partnership a corporation for purpose of taxation. 
 
 Cited in notes (22 L. R. A. 478) on taxation of joint stock association; (58 L. 
 R. A. 526) on taxation of capital stock of unincorporated associations; (57 L. R. 
 A. 74, 80) on organizations subject to franchise taxes; (58 L. R, A. 548) ou 
 taxation of intangible property of corporations; (60 L. R. A. 674) on corporate 
 taxation and the commerce clause. 
 
 Distinguished in Hoey v. Coleman, 46 Fed. 222, holding Adams Express Com- 
 pany, although quasi corporation as between its members, but not incorporated, 
 not within statute imposing tax on "all moneyed or stock corporations" deriving 
 income from capital. 
 Effect of purchase by joint stock company of its own stock. 
 
 Cited in Booth v. Dodge, 60 App. Div. 27 note, 69 N. Y. Supp. 673, holding joint 
 stock association may purchase its own stock, hold it unextinguished, and reissue it. 
 
 6 L. R. A. 308, LAWRENCE v. IXGERSOLL, 88 Tenn. 52, 17 Am. St. Rep. 870, 
 
 12 S. W 7 . 422. 
 Mandamus. 
 
 Cited in Swindell v. State, 143 Ind. 157, 35 L. R. A. 52, 42 N. E. 528, holding 
 that validity of election or appointment may be inquired into by mandamus; 
 Adcock v. Houk. 122 Tenn. 27(i. 122 S. W. 979, holding that officer sought to be 
 coerced by mandamus to recognize another as an officer may question such alleged 
 officer's right to office. 
 
 Cited in footnotes to People ex rel. Daley v. Rice, 14 L. R. A. 644, which author- 
 izes mandamus to compel canvassing board to disregard illegal return; Wampler 
 v. State, 38 L. R. A. 829, which authorizes mandamus to compel township trustee 
 to meet with others in order to obtain quorum. 
 
 Cited in notes (20 L.R.A. 167) on power of equity to grant mandatory in- 
 junction: (7 Eng. Rul. Cas. 332) on mandamus as mode of trying title to office. 
 Parliamentary latv. 
 
 Cited in footnote to State ex rel. Childs v. Kiichli, 19 L. R. A. 779. which holds 
 president of city council removable at pleasure; Board of Education v. Best, 2? 
 
6 L.R.A. 308] L. R. A. CASES AS AUTHORITIES. 10GO 
 
 L. R. A. 77, which holds mandatory, provision for entry of ayes and noes on 
 
 motion to employ teacher. 
 
 \ ii in IMT of votes of body required for valid action. 
 
 Cited in Anniston v. Davis, 98 Ala. 634, 39 Am. St. Rep. 94, 13 So. 331, hold- 
 ing that majority of quorum cannot elect where charter requires vacancy filled 
 by majority of remaining members of council. 
 
 Cited in footnotes to State ex rel. Cope v. Foraker, 6 L. R. A. 422. which 
 requires majority of all votes cast for senators and representatives to pass amend- 
 ment of Constitution; Smith v. Proctor, 14 L. R. A. 403, holding majority of 
 those actually voting as to issue of school bonds sufficient; State ex rel. Wiesen- 
 thal v. Denny, 16 L. R. A. 214, which holds majority of persons actually voting 
 on amendment of city charter sufficient; People ex rel. Hoffman v. Hecht, 27 
 L. R. A. 203, which authorizes majority of board to organize and act, though 
 minority disqualified; State ex rel. Little v. Langlie, 32 L. R, A. 723, which holds 
 a two-thirds majority of votes polled on proposal to relocate county seat suffi- 
 cient; Belknap v. Louisville, 34 L. R. A. 256, which requires two-thirds of all 
 votes cast for any purpose necessary to authorize municipal indebtedness; Zeiler 
 v. Central R, Co. 34 L. R. A. 469, which requires only two thirds of members 
 voting to dispense with reading of proposed city ordinances ; Bryan v. Stephenson, 
 35 L. R. A. 752, which requires majority of all votes cast at election to authorize 
 issue of bonds; Citizens & Taxpayers v. Williams, 37 L. R. A. 761, which holds 
 only majority of taxpayers actually voting at election necessary to authorize in- 
 crease of taxes; Montgomery County Fiscal Court v. Trimble, 42 L. R. A. 738, 
 which holds two thirds of those voting on question of creating county indebted- 
 ness sufficient; State ex rel. McClurg v. Powell, 48 L. R. A. 652, which requires 
 majority of all electors voting at election for any purpose, to adopt constitutional 
 amendment; Re Denny, 51 L. R. A. 722, which requires majority of all votes cast 
 at election for any purpose to adopt constitutional amendment. 
 Quorum. 
 
 Cited in Re Schuylkill Haven Xominations, 20 Pa. Co. Ct. 420, holding ma- 
 jority of body constitutes quorum unless law of the body directs otherwise ; 
 State ex rel. Granvold v. Porter, 11 N. D. 319, 91 X. W. 944, holding those who 
 do not attend a convention regularly called, are presumed to assent to the action 
 of the majority of those who do attend and vote; Richardson v. Young, 122 
 Tenn. 538, 125 S. W. 664. to the joint majority of members of deliberative body 
 constitute quorum to do business, and majority of that majority has power to 
 do work of whole. 
 
 Cited in footnotes to Williams v. Benet, 14 L. R. A. 825, which holds two asso- 
 ciate justices constitute quorum of Florida supreme court though vacancy exists 
 in office of chief justice; State ex rel. Walden v. Vanosdal, 15 L. R. A. 832, 
 which holds quorum not lost by half of township trustees stepping into crowd of 
 'bystanders without leaving room; State ex rel. Stantord v. Ellington, 30 L. R. A. 
 532, which holds majority of members of legislative body a quorum. 
 
 Cited in note (21 L. R. A. 175) on what constitutes quorum for meeting of 
 stockholders. 
 Veto. 
 
 Cited in Pollasky v. Schroid, 128 Mich. 701.. 55 L. R, A. 615, footnote, p. 614, 
 92 Am. St. Rep. 560, 87 X. W. 1030, holding two thirds of whole number of 
 council required to override veto. 
 
 Cited in footnote to Gate v. Martin, 48 L. R. A. 613, which denies mayor's 
 power to veto action by aldermen in passing on election for member of board, of 
 which such board is made exclusive and final judge. 
 
1001 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 315 
 
 Decision of tie vote. 
 
 Cited in footnotes to Wooster v. Mullins, 25 L. R. A, 694, which authorizes 
 casting vote by mayor where three newspapers each receive votes of four alder- 
 men; State ex rel. Young v. Yates. 37 L. R. A. 205, which holds mayor's right 
 to cast vote in case of tie not restricted by provision requiring majority vote of 
 all members of council; Brown v. Foster. 31 L. R. A. 116, which authorizes mayor 
 to vote only to break tie; State ex rel. Morris v. McFarland, 39 L. R. A. 282. 
 which holds auditor's right to give casting vote on tie vote by township trustees 
 not limited to vote by ballot; Johnston v. State, 12 L. R. A. 235, which holds 
 statute for determining tie vote by lot valid; State ex rel. Morris v. McFarland, 
 39 L. R, A. 282. which holds auditor entitled to give casting vote for filling 
 vacancy in office of county superintendent on rt'ra voce vote. 
 
 Cited in note (47 L. R. A. 552, 554, 561, 562) on decision of tie vote at election. 
 Effect to be griven blank ballot. 
 
 Cited in Murdoch v. Strange, 99 Md. 108, 57 Atl. 628, 3 A. & E. Ann. Cas. 66, 
 holding a blank ballot should be given no significance. 
 Questions of validity of election in contested election case. 
 
 Cited in Maloney v. Collier, 112 Tenn. 91, 83 S. W. 667, holding the validity 
 of an election may be determined in a contested election case. 
 
 Cited in note (30 Am. St. Rep. 266) on effect on election of irregularity by 
 election officer. 
 
 6 L. R, A. 315, RUSHVILLE GAS CO. v. RUSHVILLE, 121 Ind. 206, 16 Am. St. 
 
 Rep. 388, 23 X. E. 72. 
 Majority vote. 
 
 Cited in Re Denny, 156 Ind. 151, 51 L. R. A. 739, 59 N. E. 359, holding that 
 majority vote means majority of those who choose to take part; Re Doyle, 1 
 Daulphin Co. Rep. 351, 7 Pa. Dist. R. 637, 24 Pa. Co. Ct. 30, holding, where 
 there is quorum of deliberative body present, majority of those present can trans- 
 act business; Smith v. State, 64 Kan. 732, 68 Pac. 641, and Thurston v. Huston, 
 123 Iowa, 160, 98 N. W. 637, sustaining resolution adopted by majority of 
 quorum of city council; State ex rel. Walden v. Vanosdal, 131 Ind. 391, 15 L. R. A. 
 833, 31 N. E. 79, and State ex rel. Drummond v. Dillon, 125 Ind. 69, 25 X. E. 136, 
 holding that candidate receiving majority of votes is elected when quorum of 
 township trustees are present and voting; Wheeler v. Com. 98 Ky. 64, 32 S. W. 
 259, holding candidate receiving vote of six of twelve members of city council 
 against five votes for another, and one vote for candidate previously dropped by 
 resolution, elected; Davis v. Brown. 46 W. Va. 720, 34 S. E. 839, holding statute 
 requiring relocation of county seat to be carried by "three fifths of all votes cast 
 upon question" not require three fifths of all votes cast at election; State ex rel. 
 Hocknell v. Roper. 47 Xeb. 425, 66 X. W. 539, holding city receiving three fifths, 
 of votes cast and counted at election for relocation entitled to county seat,, 
 although number of votes received is less than three fifths of vote, counting re- 
 jected ballots; Com. ex rel. Moulds v. Fleming, 23 Pa. Super. Ct. 409; State 
 ex rel. Aucoin v. Police Comrs. 113 La. 427, 37 So. 16, holding it suffices- 
 always that a quorum of a board should be present, and that a majority of the 
 quorum concur: Strange v. Oconto Land Co. 136 Wis. 523, 117 X. W. 1023, 
 holding the presumption is where chairman of county board declares a resolution 
 adopted that he knew the law and that he voted for it when his vote would be 
 necessary to its passage. 
 
 Cited in footnotes to State ex rel. Young v. Yates, 37 L. R, A. 205, which holds 
 mayor's right to casting vote in case of tie not restricted by provision requiring: 
 
6 L.R.A. 315] L. R. A. CASES AS AUTHORITIES. 1062 
 
 majority vote of all members of council; Pollasky v. Schmid, 55 L. R. A. 614, 
 which requires two thirds majority of all members elected to council to pass 
 ordinance over veto, though some seats vacant. 
 
 Cited in notes (6 L. R. A. 308) on majority vote; (6 L. R. A. 311) on right 
 of presiding officer as to casting vote; (47 L. R. A. 561) on decision of tie vote 
 at election. 
 
 Distinguished in Eufaula v. Gibson, 22 Okla. 527, 98 Pac. 565, holding for 
 purpose of determining effect of a special election on relocation of county seat, 
 all votes intelligible and untelligible should be considered. 
 Effect of refusal to vote. 
 
 Cited in United States v. Ballin, 144 U. S. 8, 36 L. ed. 326, 12 Sup. Ct. Rep. 
 507, holding rule of House of Representatives permitting count of members 
 present, though not voting, to determine presence of quorum, constitutional ; 
 Somers v. Bridgeport, 60 Conn. 528, 22 Atl. 1015, holding person receiving ma- 
 jority vote of elective body properly constituted, elected, although majority 
 abstain from voting; State ex rel. Young v. Yates, 19 Mont. 244, 37 L. R. A. 207, 
 47 Pac. 1004, holding half of city council present and not voting not create tie, 
 requiring vote of mayor; Landes v. State, 160 Ind. 483, 67 X 1 . E. 189, holding 
 ordinance on which half the councilmen present refused to vote, unanimously 
 adopted; Ray v. Armstrong, 140 Ky. 820, 131 S. W. 1039, holding that refusal 
 of member of board to vote, when present, is, in effect, a declaration that he 
 concur with majority where board consists of eight members and four vote for 
 measure and three against; State ex rel. Granvold v. Porter, 11 N. D. 319, 91 
 X 1 . W. 944, holding silence of delegates to a convention in not voting is deemed 
 an assent to actioji of majority action of those voting; Myers v. Union League, 
 17 Pa. Dist. R. 306; Murdoch v. Strange, 99 Md. Ill, 57 Atl. 628. 3 A. & E. 
 Ann. Cas. 66, holding the effect of being present and refraining from voting 
 at a meeting of a corporate body is to acquiesce in the majority vote. 
 Municipal corporations; power to operate -water and liii.h tinji plant**. 
 
 Cited in Rockebrandt v. Madison, 9 Ind. App. 229, 53 Am. St. Rep. 348, 36 
 N. E. 444, and Crawfordsville v. Braden, 130 Ind. 152, 14 L. R. A. 270, 30 Am. 
 St. Rep. 214, 28 X. E. 849, upholding city's power to own and operate electric 
 plant for lighting streets and supplying private consumers; Mitchell v. Xegaunee, 
 113 Mich. 367, 38 L. R. A. 160, 67 Am. St. Rep. 468, 71 X. W. 046. holding that 
 legislature may authorize city to erect and operate electric plant for lighting 
 streets, and furnishing light to inhabitants: Ellinwood v. Reedsburg, 91 \Yi*. 
 134, 64 N. W. 885. holding express delegation of power unnecessary to enable 
 city to build and operate municipal water and lighting plants ; Wadsworth v. 
 Concord, 133 N. C. 593, 45 S. E. 948, by Clark-, Ch. J., concurring, who holds 
 that municipal board cannot bind town by contract for lighting streets beyond 
 term of office. 
 
 Cited in note (15 L.R.A. (X.S.) 712) on power of municipality to own electric- 
 light plant. 
 Authority of city to issue lioncls. 
 
 Cited in Coffin v. Indianapolis, 59 Fed. 227, holding that city organized under 
 general law cannot issue and sell bonds to raise money by way of loan, unless 
 expressly authorized; Kirkpatrick v. Van Cleave, 44 Ind. App. 633, 89 X. E. 
 913, holding that township advisory boards may by majority vote appropriate 
 money for expenditures not included in existing estimates and levy. 
 
 Cited in notes (21 Am. St. Rep. 373) on powers of municipal corporations 
 to issue bonds; (51 Am. St. Rep. 830) on municipal bonds in hands of bona 
 ;fide holders. 
 
1063 L. R. A. (ASKS AS AUTHORITIES. [6 L.R.A. 320 
 
 To furnish rvnter to itm Inhabitants. 
 
 Cited in Scott v. Laporte, 162 Ind. 47, 08 X. E. 278, holding the statutes 
 authorize the city to furnish water to its inhabitants in connection with pro- 
 curing water for public purposes. 
 Statute construed as part of system. 
 
 Cited in Hyland v. Brazil Block Coal Co. 128 Ind. 341, 26 N. E. 672, holding 
 that statute must be considered as part of body of law, and not independently: 
 Hazlehurst v. Mayes, 96 Miss. 670. 51 So. 890 (dissenting opinion), on duty of 
 court to construe statute as part of one great system and not as fragment. 
 
 6 L. R. A. 318, SCHIPPER v. AURORA, 121 Ind. 154, 22 N. E. 878. 
 Sewers as incident to streets. 
 
 Cited in Greensburg v. Zoller, 28 Ind. App. 131, 60 X. E. 1007, holding tile 
 drains properly part of street improvement. 
 
 Cited in note (61 L. R. A. 691) on duty and liability of municipality with re- 
 spect to drainage. 
 Unauthorized municipal contract. 
 
 Cited in Boyd v. Mill Creek School Twp. 124 Ind. 195, 24 N. E. 661, holding 
 that recovery must be on quantum meruit, not on contract when latter illegal; 
 Smith v. Miami County, 6 Ind. App. 166, 33 X. E. 243, holding county liable for 
 material and labor inuring to its benefit under ultra vires contract; Stone v. 
 Morgan, 13 Ind. App. 54, 41 N. E. 79 (dissenting opinion), majority holding 
 allegation of claim under contract unenforceable under statute of frauds in- 
 sufficient on demurrer; London & X. Y. Land Co. v. Jellico, 103 Tenn. 323, 52 
 S. W. 995, holding city liable according to benefits from improvements under 
 invalid contract; Moss v. Sugar Ridge Twp. 161 Ind. 425, 68 X. E. 896, denying 
 township's liability for work done on highway under contract made in violation 
 of statute: Valparaiso v. Valparaiso City Water Co. 30 Ind. App. 327, 65 X. E. 
 1C63, holding ultra vires provisions in franchise no defense to water company's 
 action for hydrant rental; McXay v. Lowell, 41 Ind. App. 638, 84 X. E. 778, 
 holding contracts by municipal officers which were either prohibited by statute 
 or violate rules of public policy, create no implied liability against such cor- 
 porations; Xew Albany v. Xew Albany Street R. Co. 172 Ind. 490, 87 X. E. 
 1084, holding any attempt at limitation of right of city to make reasonable 
 laws and to exercise the police power, by charter contract or otherwise is futile ; 
 Vandalia R. Co. v. State, 166 Ind. 231, 117 Am. St. Rep. 370, 76 X. E. 980, 
 holding city has no power to cede away, limit or control its legislative or govern- 
 mental powers, or to disable itself from performing its public duties; Grand 
 Trunk Western R. Co. v. South Bend, 174 Ind. 216, 36 L.R.A.(X.S.) 855, 89 
 X. E. 885, holding that cities cannot by contract surrender any of their legis- 
 lative or discretionary powers held in trust for public. 
 
 Cited in footnote to Barber Asphalt Paving Co. v. Harrisburg, 29 L. R. A. 401, 
 which holds city liable under contract for cost of paving streets when assess- 
 ment proves invalid. 
 
 Cited in notes (6 L. R. A. 290) as to doctrine of ultra vires; (19 L. R. A. 620) 
 as to limitation of doctrine of ultra vires in respect to municipal corporations. 
 
 6 L. R. A. 320, LOUISVILLE. X. A. & C. R. CO. v. SMITH, 121 Ind. 353, 22 
 
 X. E. 77.-,. 
 Liability for emergency aid. 
 
 Cited in Evansville & R. R. Co. v. Freeland. 4 Ind. App. 212. 30 X. E. 803, 
 holding company liable to surgeon employed for necessary operation upon em- 
 ployee in emergency, when local surgeon employed on other injuries in wreck; 
 
6 L.R.A. 320] L. R. A. CASES AS AUTHORITIES. 1064 
 
 Toledo, St. L. & K. C. R. Co. v. Mylott, Ind. App. 442, 33 X. E. 135, holding 
 that conductor may bind railroad for aid and shelter of brakeman seriously 
 injured at place remote from company's general offices; Louisville & X. R. Co. 
 v. Ginley, 100 Tenn. 478, 45 S. W. 348, holding that conductor has implied au- 
 thority to employ brakemen in exigency requiring additional help for proper 
 management or protection of train ; Cincinnati, I. St. L. & C. R. Co. v. Davis,. 
 126 Ind. 101, 9 L. R. A. 504, 25 X. E. 878, holding railroad liable to surgeon 
 for services rendered to person injured by company's trains, at request of gen- 
 eral superintendent; Bedford Belt R. Co. v. McDonald, 12 Ind. App. 622, 40- 
 X. E. 821, holding physician's complaint for services rendered insufficient for 
 not showing license to render such services, or their rendition to employee injured 
 on duty, or for injuries by defendant's trains; Chicago & E. R. Co. v. Behrens, 
 9 Ind. App. 578, 37 X. E. 26, holding railroad company not liable for care and 
 board furnished its injured employee at request of local surgeon taking case at 
 conductor's direction; Southern R. Co. A T . Hazelwood, 45 Ind. App. 481, 88 X. E. 
 636, holding that claim agent with authority to compromise claims, and who 
 employed physician to attend injured employee, had authority to employ surgeon. 
 
 Cited in notes in (20 L.R.A. 696) as to authority of agent or representative to 
 employ medical services for employee or other third persons; (4 L.R.A. (X.S.) 
 54, 64) on duty to provide medical assistance for servant. 
 
 Distinguished in Hunt v. Illinois C. R. Co. 163 Ind. 110, 71 X. E. 195, holding 
 conductor has no authority to bind company for room and board for an injured 
 employee and his relatives waiting on him where he is moved at his own request 
 to a point distant when ample facilities were at hand where accident occurred. 
 
 Distinguished and limited in Holmes v. McAllister. 123 Mich. 497, 48 L. R. A, 
 398, 82 X. W. 220, holding laundryman not liable for services of physician called 
 in his absence by foreman to attend injured employee; Godshaw v. J. X. Struck 
 & Bro. 109 Ky. 288, 51 L. R. A. 670, 58 S. W. 781, holding foreman of car- 
 penter work without implied authority to engage medical attendance for injured 
 workman, under him. 
 
 6 L. R. A. 321, GEXERAL ASSEMBLY OF PRES. CHURCH v. GUTHRIE, 8ft 
 
 Va. 125, 10 S. E. 318. 
 Validity of devise. 
 
 Followed in Guthrie v. Guthrie, 1 Va. Dec. 717, 10 S. E. 327, holding devise 
 to incorporated church agency not repugnant to constitution forbidding incor- 
 poration of church. 
 
 Cited in Deepwater R. Co. v. Honaker, 66 W. Va. 142. 27 L.R.A. (X.S.) 392, 
 66 S. E. 104, holding a conveyance of land to trustees for benefit of a religious 
 sect is not void for uncertainty; Jordan v. Universalist General Convention. 107 
 Va. 85, 57 S. E. 652, upholding a bequest to trustees of a remainder in certain 
 real estate to be sold and applied to certain mission work in United States of 
 America. 
 
 Cited in footnotes to Kelly v. Xichols, 19 L. R. A. 413, as to what constitutes 
 charitable use or trust; Crerar v. \Yilliams, 21 L. R. A. 454. which holds gift 
 of free public library in great city charitable; Thompson v. Brown, 62 L. R. A. 
 398, which sustains devise of fund to be distributed by executor "to the poor." 
 
 Cited in note (14 L.R.A. (X.S.) 56, 73, 152) on enforcement of general bequest 
 for charity or religion. 
 
 Cited as obiter in Fifield v. Van Wyck, 94 Va. 5GS, 64 Am. St. Rep. 745, 27 
 S. E. 446, holding devise to two trustees, their survivors or appointees in case- 
 of their death, in trust for Xew Jerusalem Church (Swedenborgian), unenforce- 
 able for vagueness. 
 
1005 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 336 
 
 Effect of repeal of statute declaratory of common \st\\ on common law. 
 
 Cited in Roller v. Murray, 107 Va. 542, 59 S. E. 421, holding the effect of an 
 implied repeal of a statute arising out of an omission to embody the statute in 
 a revision does not operate as a repeal of the common law of which it was de- 
 claratory in a limited sense. 
 Misdescription of legratee. 
 
 Cited in Jordan v. Richmond Home, 106 Va. 717, 56 S. E. 730, holding a gift 
 to the "Trustees of the Presbyterian Home for old Ladies," situated in Richmond, 
 Va., good where evidence shows the 'Richmond Home for Ladies" was intended. 
 Conflict of laws as to trills. 
 
 Cited in note (2 L.R.A. (X.S.) 456) on conflict of laws as to wills. 
 Validity of gift to religions society. 
 
 Cited in Deepwater R. Co. v. Honaker, 66 W. Va. 142, 27 L.R.A.(N.S.) 392, 
 66 S. E. 104, on validity of parol dedication of land to religious sect or denom- 
 ination. 
 
 6 L. R. A. 3.32, VAX BIBBER v. REESE, 71 Md. 608, 18 Atl. 892. 
 Liability of estates for debts. 
 
 Cited in McXiece v. Eliason, 78 Md. 176, 27 Atl. 940, denying general cred- 
 itor's right to redeem mortgage on decedent's lands and be subrogated to mort- 
 gagee's rights; Constable v. Camp, 87 Md. 181, 39 Atl. 807, denying creditor's 
 right to maintain bill against legatees after delay of fifteen years and dis- 
 tribution of estate; Seldner v. Katz, 96 Md. 219, 53 Atl. 931, holding that court 
 cannot order heirs to sell inherited land in another state to pay decedent's 
 creditors; Wisconsin Trust Co. v. Chapman, 121 Wis. 489, 105 Am. St. Rep. 
 1032, 99 X. W. 341, holding notes given by an administrator under direction 
 of the court for loan to pay up claims against the decedent do not bind the ad- 
 ministrator personally. 
 
 Distinguished in McGaw v. Gortner, 96 Md. 493, 54 Atl. 133, holding that 
 decedent's land cannot be subjected to claim for unliquidated damages arising 
 from heir's refusal to perform decedent's option contract. 
 A'alidity of sale of decedents lands for debts. 
 
 Cited in Scarlett v. Robinson, 112 Md. 210, 76 Atl. 181, holding the purchaser 
 of realty of decedent is protected from liability for debts when record of orph- 
 ans' court shows final settlement of personal estate indicating a balance after 
 payment of debts. 
 
 6 L. R. A. 330, BARRETT v. MARKET STREET CABLE R. CO. 81 Cal. 296, 
 
 15 Am. St. Rep. 61, 22 Pac. 859. 
 Reasonable tender. 
 
 Cited in note (35 L. R. A. 489) on what is a reasonable sum out of which a 
 common carrier may be required to take a passenger's fare and return the change. 
 
 Distinguished in Muldowney v. Pittsburgh & B. Traction Co. 29 Pittsb. L. J. 
 X. S. 159, 43 W. X. C. 53, 8 Pa. Super. Ct. 338, holding tender of $5 bill for a 
 5 cent fare unreasonable in law ; Funderburg v. Augusta & A. R. Co. 81 S. C. 144, 
 21 L.R.A. (X.S. ) 870, 61 S. E. 1075, holding a rule requiring a street car con- 
 ductor to give change only to amount of $1.95 for a five-cent fare, except in his 
 discretion, is reasonable. 
 
 Disapproved in Wynn v. Georgia R. & Electric Co. 6 Ga. App. 79, 64 S. E. 278; 
 Barker v. Central Park. X. & E. River R. Co. 151 N. Y. 242, 35 L.R.A. 492, 
 56 Am. St. Rep. 626. 45 X. E. 550. holding under a like rule a tender of five 
 dollars to be changed for a five-cent fare is unreasonable. 
 
6 LRJL 338] L. R. A. CASES AS AUTHORITIES. 1066 
 
 6 L. R- A. 338, WHJ)XER v. FERGUSON. 42 Minn. 112, 18 Am. St. Rep. 495, 
 
 43 X. W. 794. 
 CoMtractioB *f vror*m tm title of twrt. 
 
 Cited in State ex ret. Olsen \. Board of Control, 85 Minn. 172, 88 X. W. 533, 
 Lolding title of act should be liberally construed to uphold constitutionality. 
 Who are lafcoren or working iritkia exemption atatate. 
 
 Cited in Henderson v. Xott, 36 Xeb. 157. 3S Am. St. Rep. 720, 54 X. W. 87, 
 construing term "laborer" to mean one hired to do manual or menial labor for 
 another; Boyle v. Yanderhoof, 45 Minn. 32. 47 X. Y. 396, construing garnishment 
 exemption act for '"working men'* applicable to telegraph operators; Paddock v. 
 Ralgord. 2 S. D. 105, 48 X. W. 840, holding allegation that judgment was for- 
 "labor" not equivalent to '"for laborer's or mechanic's wages;" Moore v. Ameri- 
 can Industrial Co. 138 X. C. 307, 50 S. EL 687, holding one who kept the books 
 of the corporation, conducted the commissary store, and superintended the con- 
 duct of milling operations, not a laborer. 
 
 Cited in footnotes to Equitable L. Assur. Soc. v. Goode, 35 L. R. A. 690, which 
 holds law library of attorney occupying part of time in legal business exempt; 
 Rustad v. Bishop, 50 L. R- A. 168, which denies right to hold back successive 
 exempt wages by successive garnishments and reach same by new garnishment 
 after exemption period expires; Siever v. Union P. R. Co. 61 L. R. A. 319, which 
 sustains right to injunction against prosecuting multiplicity of garnishment pro- 
 ceedings for exempt wages. 
 
 Cited in notes 1 18 LJLA. 310) as to who are laborers, whose earnings are 
 exempt from attachment or garnishment: (58 Am. St. Rep. 304, 308) on who 
 are laborers; (102 Am, St. Rep. 85, 87, 88, 96) on exemption of wages, salaries, 
 and earnings. 
 
 6 L. R. A. 339, STATE T. ROBIXSOX, 42 Minn. 107, 43 X. W. 833. 
 
 Cited in Cheyenee T. O'Connell, 6 Wyo. 499, 46 Pac. 1088, holding one act 
 of hanling rubbish for pay not violation of ordinance prohibiting use of ^vagon 
 without license; Combs v. Lakewood. 68 X. J. L. 583, 53 Atl. 697, sustaining 
 township ordinance licensing and regulating vehicles carrying passengers for 
 hire upon highways: Des Moines T. Bolton, 128 Iowa, 112, 102 X. W. 1045, 5 A. 
 & E. Ann. Cas. 906, holding an ordinance licensing drays and all conveyances 
 transporting people or property for hire is constitutional though it does not 
 apply to liverymen: MeCauley v. State, 83 Xeb. 433, 119 X. W. 675', holding that 
 charter provision for license on vehicles does not apply to wagons rented to firms 
 under monthly contracts; Kellam v. Xewark. 79 X. J. L. 367, 75 Atl. 548, to the 
 point that ordinances containing general words "carriages and vehicles used for 
 transportation 19 are restricted in application to hackmen, public cartmen, and the 
 like. 
 
 Cited in footnotes to Child v. Bemns, 12 L. R. A. 57, which holds discretionary 
 power granted mayor to revoke licenses not unreasonable; State v. Finch, 46 
 L. R. A. 437, which sustains validity of license on express wagons greatly in 
 excess of that imposed on hacks. 
 
 Cited in notes (36 LJR.A. 413) on license fee for use of street by vehicles; 
 "129 Am. St. Rep. 285) on constitutional limitations on power to impose license 
 or occupation taxes. 
 
1067 L. R. A. CASES AS AUTHORITIES. [6 L^RJL 342 
 
 6 L. R. A. 340, GARGAX T. LOUISVILLE, X. A. & C. R. CO. 89 Ky. 212, 12 
 S. W. 259. 
 
 of abBttiK owmer ! 
 
 Cited in Bannon v. Rohmeiser, 90 Ky. 52, 29 Am. St. Rep. 355, 13 S. W. 444, 
 holding legislature powerless to close alley without consent of abutting owners; 
 Martin T. Louisville, 97 Ky. 33, 29 S. W. 864, holding city's power to dose 
 streets and alleys dependent upon legislative authority; Bigelow v. Ba Merino. 
 Ill Cal. 564, 44 Pac. 307, holding lot owner entitled to damages for taking of 
 easement in street for public use; Re Melon Street, 182 Pa. 397, 38 L. R. A. 283, 
 38 Atl. 482 (adopting dissenting opinion in 1 Pa. Super. Ct. 92.}, holding owner 
 of property abutting on part of street not vacated entitled to damages; Illinois 
 C. R. Co. T. Elliot, 129 Ky. 129, 110 S. W. 817, holding a recovery may be had 
 by lot owner by. reason of construction of railroad across alley causing ob- 
 struction, though not abutting his property; Henderson v. Lexington, 132 Ky. 
 401, 22 L.RJMX.S.) 28, 111 S. W. 318, holding the closing of a public street, 
 alley, or highway is a taking of private property and compensation must be 
 made to the abutting owners; Vander burgh v. Minneapolis, 98 Minn. 336, 6 
 L.R_\.(X.S.) 744, 108 X. W. 480, holding where access to property from a portion 
 of street is entirely cut off, and right of ingress and egress from that direction 
 permanently taken away an injury, not common to the public is suffered : 
 Jackson v. Birmingham Foundry & Mach. Co. 154 Ala. 473, 45 So. 660. holding 
 the easement of access comprehends the unobstructed right of convenient and 
 reasonable ingress and egress to the property abutting on the street. 
 
 Cited in notes (10 LJLA. 276) on rights of abutting lot owners in streets; 
 (2 LJJJMX.S.) 270) on right of property owner whose access from one direction 
 is shut off or interfered with by closing of street; (9 LRJMXJ3.) 497) on 
 right of landowner to damages for obstruction of street or highway by railroad 
 not adjacent to property. 
 
 6 L. R. A. 342, WILEY v. ATHOL, 150 Mass. 426, 23 X. K 311. 
 Gaaramty <! tiorraaiy. 
 
 Cited in Field T. Lamson & G. Mfg. Co. 162 Mass. 392, 27 L. R. A. 147, 38 
 X. E. 1126, holding that guaranty by corporation of dividends upon preferred 
 stock only devotes profits to such dividends in preference to those on common 
 stock; Keene T. Demelman, 172 Mass. 22. 51 X. E. 188, holding that equity will 
 rescind executory contract of sale containing warranty as to quantity of land, 
 based on mistake: Alden T. Hart, 161 Mass. 580, 37 X. E. 742, holding that 
 vendee could reject unmerchantable cargo of coal as violation of implied warranty. 
 SvWtaBtial perforwaM*e of cotrrt. 
 
 Cited in Palmer T. Meriden Britannia Co. 188 HI. 523. 59 X. E. 247, Affirming 
 88 HI. App. 439, and Sykes v. St. Cloud, 60 Minn. 452, 62 X. W. 613. requiring 
 party accepting part performance of contract to rely on claim for damages as 
 to unperformed part: Joplin Waterworks Co. v. Joplin, 177 Mo. 528, 76 S. W. 
 960, and Illinois Trust & Sav. Bank v. Arkansas City, 34 L. R. A. 529, 22 C. C. A. 
 189, 40 U. S. App. 257, 76 Fed. 289, holding water company entitled to rental 
 of hydrants, less damage for failure to perform contract; Allen v. Mayers, 184 
 Mass. 488, 69 X. E. 320, holding unrecorded assignment of unpaid balance on 
 building contract, performed except as to trifling detail*, valid against trustee 
 process ; Eastern Forge Co. v. Corbin. 182 Mass. 592, 66 X. E. 419, holding vendor 
 justified in refusing to perform contract where purchaser fails to make payments 
 as stipulated; Burke v. Coyne, 188 Mass. 404, 74 X. E, 942, holding if work- 
 man had failed by reason of slight changes of little value, he could not recover 
 
8 L.R.A. 342] L. R. A. CASES AS AUTHORITIES. 1068 
 
 on contract itself, unless it was shown that plumbing had been accepted; But- 
 trick Lumber Co v. Collins, 202 Mass. 420, 89 X. E. 138, holding upon the jury 
 finding the contract had been performed, the last instalment of the contract price 
 had been earned; Mitchell v. Rushing, 55 Tex. Civ. App. 286, 118 S. W. 582; 
 Ashland Coal & Coke Co. v. Hull Coal & Coke Corp. 67 \V. Va. 512, 68 S. E. 124; 
 Chariott v. McMullen, 84 Conn. 706, 81 Atl. 65, holding that one cannot retain 
 benefits of substantial performance of contract and repudiate its burdens. 
 
 Cited in note (0 L. R. A. 52) on substantial compliance with building contract. 
 Waiver of condition precedent. 
 
 Cited in Ewing v. Janson, 57 Ark. 242, 21 S. W. 430, holding waiver of per- 
 formance of conditions precedent no bar to damages for breach ; New York v. 
 New York Refrigerating Constr. Co. 8 Misc. 69, 28 N. Y. Supp. 614, holding 
 granting permit as condition precedent to construction of plant waived by ac- 
 ceptance of rent; Griggs v. Moors, 168 Mass. 364, 47 X. E. 128, holding that, 
 unless unjust or unfair, court will not interfere with party's right to take advan- 
 tage of condition precedent. 
 Water companies. 
 
 Cited in note (61 L. R. A. 88) on rights and duties of water company. 
 Measure of damages. 
 
 Cited in Sykes v. St. Cloud, 60 Minn. 454, 62 N. W. 613, holding measure of 
 damages for failure to perform water contract, difference between actual and 
 agreed supply; Leavitt v. Fiberloid Co. 196 Mass. 453, 15 L.R.A. (X.S.) 868, 82 
 N. E. 682, holding in absence of fraud or deceit, party is entitled to recover the 
 difference between the article which he bargained for and that which lie received; 
 Wight v. Chicago, 137 111. App. 242, holding a city may retain a deposit as liqui- 
 dated damages for failure to perform stipulated performance not withstanding 
 a part performance being accepted. 
 
 Cited in note (6 Eng. Rul. Cas. 624) on damages recoverable for breach of 
 contract. 
 Stipulations amounting; to conditions precedent. 
 
 Cited in Walker v. Stimmel, 15 X. D. 486, 107 X. W. 1081, holding stipulations 
 in a contract are not construed as conditions precedent unless the construction 
 is made necessary by the terms of the contract. 
 
 Cited in note (14 Eng. Rul. Cas. 690) on considering intention of parties as 
 deduced from entire instrument in determining whether doing or particular act 
 is a condition precedent. 
 Admissibility of book entries. 
 
 Cited in note (125 Am. St. Rep. 858) on admissibility in evidence against third 
 person of books, reports and the like other than books of account. 
 
 6 L. R. A. 346, MURRAY v. ROBERTS, 150 Mass. 353, 23 X.,E. 208. 
 Effect of insolvency discharge on foreign creditors. 
 
 Cited in Rosenheim v. Morrow, 37 Fla. 189, 20 So. 243, holding nonresident 
 creditors proving claims and accepting dividend bound by insolvency proceeding; 
 Pattee v. Paige, 163 Mass. 353, 28 L. R. A. 451, footnote, p. 451, 47 Am. St. Rep. 
 459, 40 N. E. 108, holding nonresident creditor accepting dividend in insolvency 
 waives right of objection; Swift v. Winchester, 96 Me. 483, 90 Am. St. Rep. 414, 
 52 Atl. 1017, holding discharge in insolvency void against nonconsenting non- 
 resident creditors. 
 
 Cited in footnote to Lowenberg v. Levine, 16 L. R. A. 159, which holds foreign 
 judgment not released by discharge in insolvency proceedings. 
 
1009 L. E. A. CASES AS AUTHORITIES. [6 L.R.A. 349 
 
 Cited in notes (11 L. R. A. 328) on creditors entitled to dividends in in- 
 solvency; (17 L. R. A. 86) on prioritj- of foreign attachment over subsequent 
 domestic attachment; (62 Am. St. Rep. 232) on effect of discharge in insolvency 
 against nonresidents^ 
 
 L. R. A. 348, SHAW v. SMITH, 150 Mass. 166, 22 X. E. 887. 
 Description of payee or indorsee of note. 
 
 Cited in Stern v. Eichberg, 83 111. App. 444. holding notes payable to estate, 
 valid; Shepard v. Hanson, 9 X. D. 251, 83 X. W. 20, holding indorsement "pay 
 to guardian of W. and S." not direction to pay to wards or their estate. 
 
 Cited in footnote to Gordon v. Anderson, 12 L. R. A. 483, which holds note 
 payable to certain person, "et al. or order," non-negotiable. 
 Effect to be given paper payable to fictitious person. 
 
 Distinguished in Boles v. Harding, 201 Mass. 106, 87 X. E. 481, holding the 
 maker must know at time of delivery of note or check, that name of payee is 
 fictitious in order for it to be treated as payable to bearer. 
 Construction of term "attested." 
 
 Cited in. International Trust Co. v. Anthony, 45 Colo. 478, 22 L.R.A.(N.S.) 
 1004, 101 Pac. 781, 16 A. & E. Ann. Gas. 1087. holding the word "attested" 
 as used in deeds, powers, bills and notes, etc., includes the subscription. 
 
 6 L. R. A. 349, MATHEWSOX v. HOFFMAX, 77 Mich. 420, 43 X. W. 879. 
 Reciprocal riparian rights. 
 
 Cited in Kray v. Muggli, 84 Minn. 97, 54 L. R. A. 479, 87 Am. St. Rep. 332; 
 Si; X. W. 882, and Smith v. Youmans, 96 Wis. 110, 37 L. R. A. 288, 05 Am. St. 
 Rep. 32, 70 X. W. 1115. sustaining right of mill owner and owners of summer 
 resorts to have artificial level of lake maintained; Lakeside Paper Co. v. .State, 
 15 App. Div. 172, 44 X. Y. Supp. 281. holding state could not interfere with 
 permanently changed channel of lake outlet for canal purposes; Matheson v. 
 Ward, 24 Wash. 411. 85 Am. St. Rep. 955, 64 Pac. 520, holding that acquiescence 
 for thirty years in diversion bars right to return stream to natural channel ; 
 Broadwell Special Drainage Dist. Xo. 1 v. Lawrence, 231 111. 98, 83 X. E. 104, 
 holding mutual and reciprocal rights are acquired where dominant owner changes 
 water to a new channel and it thereafter flows continuously for twenty years in 
 new channel: Tower v. Somerset Twp. 143 Mich. 200, 106 X. W. 874, on pre- 
 scriptive rights in flow of water diverted from natural course. 
 
 Cited in notes (41 L. R. A. 750) on correlative rights of upper and lower 
 proprietors as to use and flow of water in stream; (50 L. R, A. 845) on rights 
 acquired in artificial condition of body of water: (10 Eng. Rul. Cas. 225) on 
 acquisition by riparian owner of easement in artificial stream as against its- 
 originator; (25 Am. St. Rep. 254) on changing point of diversion of water. 
 
 Distinguished in Cloves v. Middlebury Electric Co. 80 Vt. 121, 11 L.R.A. (X.S.) 
 699, 66 Atl. 1039. holding reciprocal prescriptive rights in an artificial stream do 
 not arise where contract negatives the adverse character of the right. 
 
 Disapproved in Kray v. Muggli. 77 Minn. 235, 45 L. R. A. 221, 79 X. W. 964, 
 holding that riparian owners acquire no reciprocal prescriptive right to have 
 dam maintained for their benefit. 
 Rig-lit to restore stream to natnral bed. 
 
 Cited in Morton v. Oregon Short Line R. Co. 48 Or. 448, 7 L.R.A. (X.S.) 
 348, 120 Am. St. Rep. 827. 87 Pac. 151. holding a land owner may restore water 
 to its natural bed where a sudden freshet causes it to form new channel, if he 
 acts within a reasonable time: Beidler v. Sanitarv Dist. 211 111. 635, 67 L.R.A.. 
 
6 L.R.A. 349] L. R. A. CASES AS AUTHORITIES. 1070 
 
 837, 71 N. E. 1118, holding where owner diverts water from natural channel 
 and enjoys it in the new channel beyond the statutory period he acquires a 
 right to its continuance in such new channel. 
 \:i t ur- of possession to support adverse water ri^lii. 
 
 Cited in Rickels v. Log-Owners' Booming Co. 139 Mich. 118, 102 X. W. 652, 
 holding claimant must show an exclusive enjoyment of the water, adverse to the 
 right of the defendant, and without interruption, for the statutory period. 
 
 6 L. R. A. 353, KXOX'S APPEAL, 131 Pa. 220, 17 Am. St. Rep. 798, 18 Atl. 1021. 
 What constitutes a frill. 
 
 Cited in Gaston's Estate, 188 Pa. 378, 68 Am. St. Rep. 874, 41 Atl. 529, holding 
 signed writing "it is my wish," followed by sufficiently definite directions, a 
 will; Tozer v. Jackson, 164 Pa. 384, 35 W. N. C. 268, 30 Atl. 400, holding un- 
 sealed envelope with a signed paper inclosed, stating that writer gives certain 
 property to person named on envelope, valid will ; Harrison's Estate, 196 Pa. 
 578, 46 Atl. 888, holding signed indorsement on unsealed envelope directing sale 
 of inclosed securities after indorser's death, for specified persons, valid codicil ; 
 Scott's Estate, 147 Pa. 100, 29 W. X. C. 180, 30 Am. St. Rep. 713, 23 Atl. 212, 
 holding letter with directions for drawing will, executed by testator and wit- 
 nesses, valid as will ; Funston's Estate, 24 Pa. Co. Ct. 139, holding unsigned 
 paper, making various bequests, headed "My will, S. F. ," not valid will ; 
 McGettigan v. Carr, 13 Lane. L. Rev. 77, holding paper in form of letter, dis- 
 closing writer's intention as to disposition of property, a valid will; Xoyes v. 
 "Gerard, 40 Mont. 197, 26 L.R.A.(X.S.) 1147, 105 Pac. 1017, holding the statu- 
 tory requirement that a holographic will must be entirely written, dated and 
 signed by the testator himself must be strictly complied with; Xoyes v. Gerard, 
 40 Mont. 243, 106 Pac. 355 (dissenting opinion), on validity of improperly 
 executed holographic will: Re Zug, 57 Pittsb. L. J. X. S. 178, holding that letter 
 by testator to wife saying that expected heir did not change his will is valid 
 <-odicile; Greer's Estate, 21 Montg. Co. L. Rep. 29, holding that paper directing 
 executor to pay out of estate certain sum to named person and signed by testator 
 is valid codicil. 
 
 Cited in footnotes to Orth v. Orth, 32 L. R. A. 298, which holds no interest 
 created by advice and expression of hope in letter to testator's wife as to what 
 she will do with property devised to her ; Jewell v. Louisville Trust Co. 53 
 L. R. A. 377, which denies creation of precatory trust by will of merchant ex- 
 pressing desire for retention, on liberal terms, of specified person in employ of 
 firm of which testator a partner; Morgan v. Halsey, 36 L. R. A. 716, which holds 
 power of appointment of property to testatrix's daughter in any manner she 
 may deem proper limited by subsequent clauses of will ; Williams v. Baptist 
 Church, 54 L. R. A. 427. which holds absolute gift, not trust, created by bequest 
 to church and "suggesting" as to application. 
 
 Cited in notes (7 L. R. A. 520) as to effect of precatory words upon estate 
 granted; (7 L. R. A. 394) as to precatory words in will; (13 L. R. A. 563) as 
 to effect of precatory words in will; (104 Am. St. Rep. 24, 26, 30, 32) on 
 holographic wills. 
 Sufficiency of signature to instrument. 
 
 Cited in Plate's Estate, 148 Pa. 60, 29 W. X. C. 562, 33 Am. St. Rep. 805, 23 
 Atl. 1038, Reversing 8 Lane. L. Rev. 212, 9 Pa. Co. Ct. 651, 28 W. X. C. 167, 
 holding proof that testator commenced to sign codicil, made stroke, and said 
 "I cannot sign now," conclusive of no signature; Seventh Street Colored M. E. 
 Church v. Campbell, 48 La. Ann. 1546, 21 So. 184, holding statute that incorpo- 
 
1071 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 359 
 
 rators "shall prepare and sign" articles not require signature of names; United 
 States Fidelity & G. Co. v. Siegmann, 87 Minn. 178, 91 X. W. 47.3, denying 
 liability, as between parties, of person intending to sign bond as witness, placing 
 name under obligors; National Union Bank v. Shearer, 225 Pa. 475, 74 Atl. 351. 
 17 A. & E. Ann. Cas. 664, holding signature to warehouse receipts sufficient 
 where name was stamped with a rubber stamp and authenticated by writing the 
 initial letter il S" of name; Swire's Estate, 225 Pa. 192, 73 Atl. 1110, holding the 
 statute requires that the signature to every will shall be at the "end thereof;" 
 Will ing's Estate. 30 Pa. Co. Ct. 564, 13 Pa. Dist. R. 785, holding letter of in- 
 structions to attorney and copy with indorsement on envelope by testator showing 
 plainly the intention of testator to have same embodied as codicil to will should 
 be entitled to probate as such; Re Simcox, 39 Pittsb. L. J. N. S. 78, holding 
 initial of last name sufficient signature. 
 
 Cited in footnotes to Re Conway, 11 L. R. A. 796, which holds reference before 
 signature on face of will to items on back insufficient; Re Booth, 12 L. R. A. 452, 
 which holds holographic will containing maker's name at beginning only, insuffi- 
 ciently executed. 
 
 Cited in note (8 L. R. A. 823) as to subscription to will. 
 
 Distinguished in Re Jacoby, 190 Pa. 409, 44 \\ . X. C. 29, 42 Atl. 1026, holding 
 box inscribed with owner's signed direction to deliver to attorney in case of 
 death, and containing envelopes inscribed, without signature, "This to go to" 
 not a will. 
 Parol evidence to show character of writing. 
 
 Cited in Clay v. Layton, 134 Mich. 342, 96 X. W. 458, holding where papers 
 plainly provide in terms for a present transfer of property, parol evidence is 
 inadmissible to show they were testamentary in character. 
 
 Distinguished in Little's Estate, 36 Pa. Co. Ct. 379, 57 Pittsb. L. J. N. S. 
 98, holding where large envelope addressed Miss M. L. Marquis, contained a 
 email envelope containing U. S. bonds with address "dear May," and without 
 date, they were not entitled to probate as codicil to will. 
 Certainty of trust property. 
 
 Cited in Smullin v. Wharton. 73 Xeb. 683, 103 N. W. 288, holding whether the 
 trust be express or constructive the property upon which the trust is to operate 
 must be ascertained. 
 
 6 L. R. A. 359, STATE v. FIRE CREEK COAL & COKE CO. 33 W. Va. 188, 
 
 25 Am. St. Rep. 891, 10 S. E. 288. 
 Freedom to contract and cinss legislation. 
 
 Cited in State v. Loomis, 115 Mo. 318, 21 L. R. A. 805, 22 S. W. 350, Re- 
 versing decision in department. 21 L. R. A. 792, holding act prohibiting pay- 
 ment of wages in scrip not redeemable at face value in cash at option of bidder, 
 unconstitutional: State v. Peel Splint Coal Co. 36 W. Va. 857. 17 L. R. A. 403. 15 
 S. E. 1000 (dissenting opinion), majority holding act prohibiting employers pay- 
 ing employees in scrip not redeemable in money, constitutional ; People ex rel. 
 Rodgers v. Coler, 166 X. Y. 18. 52 L. R. A. 822. 82 Am. St Rep. 605, 59 X. E. 
 716. holding unconstitutional statute requiring payment of prevailing rate of 
 \\a:_ r <-< in city contract work; Low v. Rees Printing Co. 41 Xeb. 141, 24 L. R. A. 
 708, 43 Am. St. Rep. 670, 59 X*. W. 362, holding act declaring eight hours a day's 
 labor, unconstitutional: Republic Iron & Steel Co. v. State. 160 Ind. 391, 62 
 L. R. A. 144, 66 X. E. 1005. holding statute requiring weekly payment of wages 
 unconstitutional; S. A. & A. P. R. Co. v. Wilson. 4 Tex. App. Civ. Cas. (Willson) 
 p. 574, holding act imposing penalty on railroads for not paying employees 
 
6 L.R.A. 359] L. R. A. CASES AS AUTHORITIES. 1072 
 
 within prescribed time unconstitutional ; Leep v. St. Louis, I. M. & S. R. Co. 58 
 Ark. 407, 23 L. R, A. 270, 41 Am. St. Rep. 109, 25 S. W. 75, holding statute 
 requiring corporation to pay entire wages to date of discharge of employee, re- 
 gardless of employer's damage, void; Dixon v. Poe, 159 Ind. 497, 60 L.R.A. 310. 
 95 Am. St. Rep. 309, 65 X. E. 518, holding act requiring merchants issuing store 
 tokens for wages assigned by coal miners, to redeem in money, invalid class leg- 
 islation; Johnson v. Goodyear Min. Co. 127 Cal. 14, 47 L.R.A. 342, 78 Am. St. 
 Rep. 17, 59 Pac. 304, holding act giving employees lien on property of corporation 
 failing to pay wages monthly, invalid; Frorer v. People, 141 111. 182, 16 L.R.A. 
 496, 31 X. E. 395, holding act prohibiting mine owners and manufacturers from 
 keeping "truck stores" unconstitutional; Com. v. Brown, 43 W. N. C. 75, 8 Pa- 
 Super. Ct. 355, declaring act requiring weighing of coal before screening, uncon- 
 stitutional; State v. Wilson, 7 Kan. App. 446, 53 Pac. 371, holding act requiring- 
 weighing of coal before screening, constitutional ; Jordon v. State, 51 Tex. Grim. 
 Rep. 534, 11 L.R.A. (N.S.) 608, 103 S. W. 633, 14 A. & E. Ann. Cas. 616, hold- 
 ing the legislature has no power to prevent the making of contracts between 
 workmen and employer nor to interfere with the freedom of contract between 
 them; State v. Missouri Tie & Lumber Co. 181 Mo. 555, 65 L.R.A. 588, 103 Am. 
 St. Rep. 614, 80 S. W. 933, 2 A. & E. Ann. Cas. 119, holding unconstitutional 
 a statute making it a misdemeanor for any one, in payment of laborers, to give 
 in evidence of indebtedness, any note, check, etc., unless such as be negotiable and' 
 redeemable in money; Coal & Coke R. Co. v. Conley, 67 W. Va. 211, 67 S. E. 613 
 (dissenting opinion), on constitutionality of statute fixing railroad rates in 
 accordance with certain classification; American Surety Co. v. Shallenberger, 
 183 Fed. 642, holding that statute fixing charges of surety companies and pro- 
 viding penalty for violation is unconstitutional. 
 
 Cited in footnotes to Hancock v. Yaden, 6 L. R. A. 576, which holds statute 
 prohibiting employees of mining and manufacturing companies contracting to 
 receive wages in other than money not unjust discrimination; Braceville Coal 
 Co. v. People, 22 L. R. A. 340, which holds unconstitutional, statute requiring 
 weekly payment of wages by specified corporations. 
 
 Cited in notes (25 Am. St. Rep. 882) on 14th amendment as to special privi- 
 leges, burdens, and restrictions; (37 Am. St. Rep. 213) on statute regulating 
 relations of master and servant; (62 Am. St. Rep. 178, 179) on protection of 
 corporations from special and hostile legislation; (78 Am. St. Rep. 244) on acts 
 which legislature may declare criminal; (122 Am. St. Rep. 910) on consti- 
 tutionality of statutes regulating time and method of payment of wages. 
 As to attorney's fees. 
 
 Cited in Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 165, 41 L. ed. 672, 17 Sup. 
 Ct. Rep. 255, holding act permitting successful claimants against railroads to 
 recover attorney's fees invalid; Hocking Valley Coal Co. v. Rosser, 53 Ohio St. 
 25, 29 L. R. A. 390, 53 Am. St. Rep. 622, 41 N. E. 263, holding statute allowing 
 plaintiff attorney's fees in suits for wages unconstitutional; Vogel v. Pekoe, 157 
 111. 349, 30 L. R. A. 495, 42 N. E. 386 (dissenting opinion), majority holding 
 statute allowing plaintiff attorney's fees in suits for wages constitutional ; 
 Davidson v. Jennings, 27 Colo. 195, 48 L. R. A. 343, 83 Am. St. Rep. 49, 60 
 Pac. 354, holding portion of act permitting plaintiff in mechanic's lien foreclosure 
 to tax attorney's fee unconstitutional ; Los Angeles Gold Mine Co. v. Campbell, 
 13 Colo. App. 7, 56 Pac. 246, following as binding, authority of United States 
 Supreme Court holding taxing of attorney's fee by plaintiff in mechanic's lien 
 cases unconstitutional; Chicago. R. .1. & P. R. Co. v. Mashore, 21 Okla. 286. 
 96 Pac. 630, 17 A. & E. Ann. Cas. 277, holding a legislative requirement that 
 
1073 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 363 
 
 defeated party shall pay attorney's fees in actions for personal services is con- 
 stitutional. 
 
 6 L. R. A. 360, AIKEN v. FRANKLIN, 42 Minn. 91, 43 N. W. 839. 
 Covenants running- with land. 
 
 Cited in footnotes to Mott v. Oppenheimer, 17 L. R. A. 409. which construes 
 as running with the land, agreement for party wall expressly declared to run with 
 land: Mygatt v. Coe, 11 L. R. A. 646, which holds covenants of warranty and 
 quiet enjoyment by owner of fee and her husband do not run with land as against 
 husband; Bald Eagle Valley R, Co. v. Nittany Valley R. Co. 29 L. R. A. 423, 
 which holds intention of parties controlling in determining whether covenant 
 runs with land. 
 Breach of covenant of seisin. 
 
 Cited in footnotes to Hodges v. Wilkinson, 17 L. R. A. 545, which holds action 
 for breach of implied warranty of title of personalty sold, after its taking by 
 third person, not premature; Wiggins v. Fender. 61 L. R. A. 772, which holds 
 assignee entitled to benefit of covenant of warranty not naming him, if assigns 
 named in habendum clause of deed. 
 
 6 L. R. A. 362, MARTIN v. PALMER, 42 Minn. 176, 43 N. W. 966. 
 LiOgr-lien law; construction. 
 
 Cited in Breault v. Archambault, 64 Minn. 423, 58 Am. St. Rep. 545, 67 N. W. 
 348, holding camp cook, assistant, and camp blacksmith entitled to benefits of 
 log-lien law; Breault v. Archambault, 64 Minn. 423, 58 Am. St. Rep. 545. 67 
 N. W. 348, holding party supplying teams and drivers under entire contract 
 entitled to lien, though performing no manual labor herself; Klondike Lumber 
 Co. v. Williams, 71 Ark. 338, 75 S. W. 854, holding that laborer's lien covers 
 use of wagon and team; Proux v. Stetson & P. Mill Co. 6 Wash. 481, 33 Pac. 
 1167, holding lien for labor under entire contract enforceable against only part 
 of logs; St. Louis, I. M. & S. R. Co. v. Love, 74 Ark. 535, 86 S. W. 395, holding 
 the services of a foreman who superintends and directs laborers in the work of 
 construction or repair of a railroad falls within terms of statute giving the 
 "laborer or other person who shall perform work or labor" a lien for his serv- 
 ices; Paquet v. New York Trust Co. Rap. Ind. Quebec. 15 B. R. 183, sustain- 
 ing the right of one carting logs for an electric railroad to a lien not only for 
 his labor, but also for that of his horses. 
 
 Distinguished in Mabie v. Sines, 92 Mich. 547, 52 X.'W. 1007, holding party 
 selling team to be used in lumber yard, under contract providing for monthly 
 rental in default of stipulated payments of purchase price, not entitled to lien. 
 
 6 L. R. A. 363, JOHN W. LOVELL CO. v. HOUGHTON, 116 N. Y. 520, 22 N. E. 
 
 1066. 
 Privileged communications. 
 
 Cited in Sommers v. Christiano. 21 Misc. 177, 47 N. Y. Supp. 115, holding 
 affidavit in support of motion in legal proceeding prima facie privileged; McCarty 
 v. Lambley, 20 App. Div. 268, 46 N. Y. Supp. 792, holding master's charge of 
 employee with theft privileged, where informed by subordinates that such em- 
 ployee had not only stolen, but had admitted guilt; Bowsky v. Cimiotti Unhair- 
 ing Co. 72 App. Div. 175, 76 N. Y. Supp. 465, holding publication warning 
 traders against using or employing those \vho used machines infringing patents, 
 privileged: Weber v. Lane, 90 Mo. App. 82, 71 S. W. 1099, holding report of 
 L.R.A. An. Vol. L 68. 
 
6 L.R.A. 363] L. R. A. CASES AS AUTHORITIES. 1074 
 
 committee of board of aldermen investigating charges against dramshop keeper 
 privileged. 
 
 Cited in footnotes to Rothholz v. Dunkle, 13 L. R. A. 655, which holds com- 
 munication by bank cashier to stockholder as to solvency of surety on bond to 
 bank privileged; Hemmens v. Nelson, 20 L. R. A. 441, which holds statement by 
 principal of deaf mute institute, to executive committee, as to improper acts of 
 department superintendent privileged; Nissen v. Cramer, 6 L. R. A. 780, which 
 holds relevant words spoken by party to action during trial privileged; Moore 
 v. Manufacturers' Nat. Bank, 11 L. R. A. 753, which holds reference, in state- 
 ment to sureties of cashier, to items drawn by "collusion with teller," libelous 
 as to teller; Conroy v. Pittsburgh Times, 11 L. R. A. 725, which holds privileged 
 communication one properly made on proper occasion from proper motive on 
 probable cause. 
 
 Cited in note (9 L. R. A. 621) on what constitutes libel and slander. 
 Question for. court. 
 
 Cited in Hart v. Sun Printing & Pub. Asso. 79 Hun, 361, 29 N. Y. Supp. 434, 
 holding character of admitted facts, published under claim of privilege, question 
 of law for court; Miodownick v. Fischman, 134 App. Div. 247, 118 N. Y. Supp. 
 870, holding it only where facts are not controverted that a trial court is 
 privileged to determine that a writing containing the libel is a privileged com- 
 munication; Ashcroft v. Hammond, 197 N. W. 494, 90 N. E. Ill", holding 
 the question whether telegram was privileged for the court where circumstances 
 were not in dispute. 
 Question for jury. 
 
 Cited in Warner v. Press Pub. Co. 132 N. Y. 183, 30 N. E. 393, holding exist- 
 ence of facts published under claim of privilege, for jury. 
 Inference of malice. 
 
 Cited in footnotes to Pollasky v. Michener, 9 L. R. A. 102, which authorizes 
 inference of malice from sending false statement as to mortgage, advising caution, 
 to patrons of commercial agency; Street v. Johnson, 14 L. R. A. 203, which holds 
 seller of presumed to know that it contains libel. 
 
 Cited in note (13 L. R. A. 708) on slander of title. 
 Actionable assertions of ownership of property. 
 
 Cited in Brown v. Pillow, 98 C. C. A. 579, 174 Fed. 970, holding, in absence 
 of malice, one who, by reason of assertion of ownership of a dredge, causes delay 
 in work and desertion of laborers, cannot be held for loss resulting from such 
 interruption of business. 
 
 6 L. R. A. 366, WILLIAMS v. GUILE, 117 N. Y. 343, 22 N. E. 1071. 
 Gifts cansa mortis. 
 
 Cited in Ridden v. Thrall, 125 N. Y. 579, 21 Am. St. Rep. 758, 11 L. R. A. 688, 
 26 N. E. 627, holding gift of box containing bank books in event donor did not 
 survive pending surgical operation, valid gift causa mortis, though operation suc- 
 cessful and donor died in hospital from another disease to which subject before 
 operation; Hogan v. Sullivan, 114 Iowa, 460, 87 N. W. 447, holding delivery of 
 memorandum on deathbed, to son-in-law, disposing of bank deposit, certificate for 
 which taken in his name two years prior, valid gift causa mortis in favor of 
 beneficiaries named in memorandum; Caylor v. Caylor, 22 Ind. App. 674, 72 Am. 
 St. Rep. 331, 52 N. E. 465, holding deathbed gift by wife of all her property of 
 which husband in possession, to absent nephew, valid; Callanan v. Clement, 18 
 Misc. 625, 42 N. Y. Supp. 514, holding delivery of bank book to donee on deathbod 
 of donor, with subsequent directions to donee to let former custodian keep same 
 
3075 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 366 
 
 until after donor's death, valid gift; Re Crosby, 46 X. Y. S. R. 444, 1 Power, 30, 
 20 X. Y. Supp. 63, holding delivery of promissory note to attending niece to 
 hold for maker sufficient to validate gift; Leyson v. Davis, 17 Mont. 274, 31 
 L. R. A. 447, 42 Pac. 775, holding gift of bank stock accompanied by delivery, to 
 donee four months prior to donor's death and on eve of journey to recuperate, 
 valid, though donor returned before death, and during absence stock was voted 
 according to his direction; Larrabee v. Hascall, 88 Me. 520, 51 Am. St. Rep. 440. 
 34 Atl. 408, holding that lapse of one month and a half between gift and death 
 of testator does not invalidate same as gift causa mortis; Kirk v. McCusker, 
 3 Misc. 284, 22 X. Y. Supp. 780, in concurring opinion, in support of dissent 
 from statement that gift of bank deposit was revoked by subsequent appropria- 
 tion of portion of account to donor's personal use; Telford v. Patton, 144 111. 
 627, 33 X. E. 1119, holding sum deposited in name of third party eight months 
 before death, without delivery of certificate to third party, not valid gift; 
 Hatcher v. Buford, 60 Ark. 173, 27 L. R. A. 508, 29 S. W. 641, holding indorse- 
 ment of donee's note to his mother while donor was in expectancy of death, but 
 still able actively to tend to business, gift inter vivos; Blazo v. Cochrane, 71 X. H. 
 587, 53 Atl. 1026, and Bean v. Bean, 71 X'. H. 542, 53 Atl. 907, holding gift 
 causa mortis not absolute, though no condition be expressed; Bray v. O'Rourke, 
 89 App. Div. 402, 85 X. Y. Supp. 907, holding that gift inter vivos may be 
 based on delivery to third person for donee's benefit; Opitz v. Karel, 118 Wis. 
 535, 62 L. R. A. 985, 99 Am. St. Rep. 1004, 95 X. W. 948, holding that insured 
 may make valid gift by delivery of insurance policy; Devol v. Dye, 123 Ind. 328, 
 7 L. R. A. 442, 24 X*. E. 246, holding delivery of key of private box to bank- 
 cashier, with instructions to set aside and mark certain sums with donees' names, 
 valid; O'Xeil v. O'Xeil, 43 Mont. 512, 117 Pac. 889, Ann. Gas. 1912C, 268, 
 holding that to render gift causa mortis effective it must have been made in 
 contemplation of death and delivery must have been made with intent that 
 title should vest only in case of death; Dickinson v. Hoes, 33 X. Y*. Civ. Proc. 
 Rep. 104, 84 X*. Y". Supp. 152, holding a gift causa mortis is an apparent asset 
 in the hands of the administrator. 
 
 Cited in footnotes to Peck v. Rees, 13 L. R. A. 714, which holds delivery of 
 deed by donor to own agent insufficient; Gammon Theological Seminary v. 
 Robbins, 12 L. R. A. 506, which holds instrument declaring that holder gives 
 note, which he retains, insufficient as gift. 
 
 Cited in notes (7 L.R.A. 439; 11 L.R.A. 684; 99 Am. St. Rep. 894, 895, 906) 
 on gifts causa mortis; (18 L.R.A. 171) on sufficiency of constructive delivery 
 to sustain gift causa mortis. 
 
 Criticized in Zeller v. Jordan, 105 Cal. 147, 38 Pac. 640. holding gift of check, 
 unaccompanied by deposit book, by wife while well and on understanding that 
 not to be used till death, not valid. 
 
 Disapproved in Bieber v. Boeckmann, 70 Mo. App. 508, holding delivery of 
 money on deathbed to party, with directions to divide same between certain 
 relatives in event of death, but to return it in case of recovery, not valid. 
 Time when Rift takes effect. 
 
 Cited in Callanan v. Clement, 18 Misc. 625, 42 X'. Y. Supp. 514, holding that 
 gift of bank deposit relates back, on death of donor, to date of delivery of bank 
 book to agent for donee. 
 Direction of verdict. 
 
 Cited in Decker v. Sexton, 19 Misc. 68, 43 X. Y. Supp. 167, holding verdict 
 properly directed on question of waiver, where evidence of landlord and tenant 
 conclusive against same: Hopkins v. Xashville. C. & St. L. R. Co. 96 Tenn. 435. 
 32 L. R. A. 302, 34 S. \V. 1029, holding demurrer to evidence permissible in Ten- 
 
6 LJLA. 366] L. R. A. CASES AS AUTHORITIES. 1076 
 
 nessee without violating constitutional guaranty of trial by jury and provision 
 direction of verdict. 
 
 6 L. R. A. 369. MAXHATTAX CIOAK <fc SOT CO. v. DODGE. 120 Ind. 1, IS 
 
 Am. St. Rep. 29S. 21 X. EL 344. 
 ** mt r*mfleBti*l relatiB. 
 
 Cited in Hughes r. Wiltson, 128 Ind. 494. 26 X. EL 50. holding attorney trustee 
 of profits received on purchase and sale of land in fraud of client's estate: Re 
 Dvrightt. 61 App. Div. 3(6:2. 70 X. Y. Supp. 563, holding attorney of assignee for 
 benefit of creditors entitled to receive out of assigned estate only amount paid 
 by him for claims against estate; Rosenthal v. MeGraw, 71 C. C. A. 277, 138 
 Fed. 723, holding a receiver liable for interest on the owner's shares of earnings 
 withheld, it being his duty to torn over the sums of money as received. 
 
 Cited in footnotes to Harrison v. Mulvane, 54 LL R. A. 405. which holds one 
 charged with selling corporate stock to pay encumbrances, one of which he owns. 
 not forbidden, as trustee, to bar prior liens to protect own interests: Frazier v. 
 Jeakins, 57 L. R- A. 575. which holds guardian's sale to her husband void- 
 
 Cited in notes (9 L. R. A. 793) on purchase by trustee inuring to benefit of 
 cesfiri qme trust; f 12 L. R- A. 396)) on right of agent to become purchaser of 
 subject of agency: (13 L. R. A. 490) on personal interest conflicting with 
 fiduciary duty; (11 L. R. A. 328} on right of creditors of insolvent to dividends. 
 
 6 L R. A. 371, HART v. BTJRCH, 130 HL 426, 32 X. EL 831. 
 
 Cited in Heisen v. Heisen. 145 HL 664, 21 L R. A. 437. 34 X. EL 597, holding 
 husband's statutory dower barred pro tamto by tat-ing lease for term of years 
 from wife's executors: Thompson v. Harsh, 61 HL App. 271. holding that cred- 
 itor may maintain suit to secure assignment of judgment debtor's right of dower 
 and application to judgment; Card v. Pudney, 42 App. Div. 408, 59 X. T. Supp. 
 278, holding widow of tenant in common not entitled to sale of cotenant's interest 
 in piupeily in suit to apportion dower in husband's interest; Grnbbs v. Leyen- 
 deeker. 153 Ind. 352, 53 X. EL 940. holding daughter barred after lapse of statu- 
 tory period, to claim share of estate as against purchasers from sons conveying 
 full title under transfer from mother of nnassigned doyer rights. 
 
 Cited in note (39 Am. St. Rep. 25, 30) on assignment of dower. 
 
 Cited in Fletcher v. Shepherd, 174 HL 271, 51 X. EL 212, holding that release 
 of dower by widow to daughter in belief that latter owned fee operates as to 
 actual interest of daughter, and does not bar claim to dower in remainder: Wil- 
 liams v. Merriam, 72 Kan. 322, S3 Pae. 976, holding in absence of statute, the 
 dower to land could not be released to any one not the owner, or one so re- 
 lated to the fee that the release would unite it with the fee. 
 
 Cited in Jennings v. Dunphy, 174 HL 89, 50 X. EL 1045, holding conservator's 
 sale subject to court's approval may be set aside, although price fair, where 
 estate materially benefited by resale; Davies v. Gibbs, 174 HL 277, 51 V. E. 
 220, holding confirmation of irregular sale in vacation conclusive where no fraud 
 or mistake shown which prevented filing of exceptions within statutory time; 
 R?d"i"HI v. Can, 226 HL 128, 80 X. EL 708, holding the mere acceptance of a 
 bid at a judicial sale conveys no title: Fanlds v. TOton, 112 C. C, A. 555, 192 
 Fed. 298, to the point that judicial sale under decree of court must be approved, 
 and confirmed before it becomes final or conveys title. 
 
1077 K R. A. CASES AS AUTHORITIES. [6 L.R^. 379 
 
 6 L. R. A. 374, MILLER v. MOORE, 83 Ga. 684, 20 Am. St. Rep. 329, 10 S. E. 360. 
 
 Implied \\ ;i rrii ii \ . 
 
 Cited in Snowden v. Waterman, 105 Ga. 388. 31 S. E. 110, holding implied 
 warranty of merchantableness not waived by personal examination of goods 
 containing latent defect; American Grocery Co. v. Brackett, 119 Ga, 490, 4G S. 
 7. holding bargain and sale of a chattel of a particular description imports a 
 warranty that the article sold is of that description; Henderson Elevator Co. v. 
 North Georgia Mill. Co. 126 Ga. 281, 55 S. E. 50, holding an agreement for 
 sale of "20,000 bushels of Xo. 2 white corn, bulk" imports a warranty as to 
 quality as well as variety; De Loach Mill Mfg. Co. v. Tutweiler Coal, Coke & 
 Iron Co. 2 Ga. App. 499, 58 S. E. 790, holding a sale of iron as "Standard Ala- 
 bama Xo. 1 soft" is an express warranty that article shall be equal to description. 
 
 Cited in notes (6 L. R. A. 392) on implied warranty on sale by manufacturer; 
 (15 L.R.A. 795) on effect of representing things sold to be "good;" (35 L.R.A. 
 284) on warranty on sale with particular description of kind or quality: 
 (102 Am. St. Rep. 615) on implied warranty of quality; (23 Eng. RuL Caa. 464) 
 on implied warranty on sale of goods by description. 
 \\ ;t i ver of warranty- as to latent defect* by inspection. 
 
 Cited in Jones v. Bloomgarden, 143 Mich. 335, 106 X. W. 891, holding an in- 
 spection sufficient in law is not conclusive upon the rights of a buyer where 
 there are latent defects afterwards discovered; Cook v. Finch, 117 Ga. 543, 44 S. 
 E. 95, holding even an inspection, will not deprive the purchaser of a warranty 
 as to latent defects which could not have been discovered by the exercise of 
 ordinary prudence. 
 Effect of acceptance. 
 
 Cited in footnote to Ontario Deciduous Fruit Growers' Asso. v. Cutting Fruit 
 Packing Co. 53 L. R. A. 681, which requires buyer to pay for fruit received under 
 contract, knowing full amount cannot be delivered. 
 
 Cited in notes (12 L.R.A. 399) on effect of acceptance of goods under contract 
 of sale: (8 L.R.A.(X.S.) 1110) on notice to vendor as condition of right to refuse 
 subsequent after breach as to earlier deliveries: (35 LJl.A.(X.S.) 280) on 
 effect of acceptance without opportunity to make practical inspection; (35 
 L.R.A.iX.S.) 283) on effect of acceptance after inspection; (38 L.R.A.(X.S.) 
 543) on sale; right of purchaser of goods deliverable in instalments to rescind 
 the contract, or refuse further deliveries, for breach as to quantity. 
 Remedies of seller for breach of contract. 
 
 Cited in Carolina Portland Cement v. Columbia Improv. Co. 3 Ga. App. 487, 
 60 S. E. 279, holding the statutory remedies do not exclude a remedy different 
 from those outlined. 
 Knowledge as affecting: force of local custom. 
 
 Cited in Hendrieks v. Middlebrooks Co. 118 Ga. 137, 44 S. E. 835, holding a 
 mere local custom or business usage which springs up in a particular city can- 
 not be claimed as part of contract of one who never recognized the existence of 
 such custom; Bacon Fruit Co. v. Blessing. 122 Ga. 369, 50 S. E. 139, holding a 
 local custom of brokers charging shippers $10 per car for goods bought, is 
 not binding on a nonresident shipping in absence of knowledge on his part an 
 acceptance. 
 
 6 L. R. A. 377, GARRETSOX v. FERRALL. 78 Iowa, 166, 42 X. W. 637. 
 
 C L. R. A. 379. BIXXEY v. GLOBE XAT. BAXK. 150 Ma*-. 574. 23 X. E. 380. 
 Statutory riulit- of feme covert. 
 
 Cited in Colonial & U. S. Mortg. Co. v. Bradley, 4 S. D. 162. 55 X. W. 1108, 
 
6 L.R.A. 379] L. R. A. CASES AS AUTHORITIES. 1078 
 
 holding married woman liable on joint proii'issory note given in payment of 
 husband's individual debt; Foster v. Leach, 1GO Mass. 420. 36 X. E. 69, holding 
 acceptance of note on wife's indorsement sufficient consideration to support her 
 contract as indorser; Harmon v. Old Colony R, Co. 165 Mass. 106, 30 L. R. A. 
 660, 52 Am. St. Rep. 499, 42 X. E. 505, holding earning capacity of woman as 
 laborer proper element of damages; Middleborough Xat. Bank v. Cole, 191 Mass. 
 170, 77 X. E. 781, holding wife liable on accommodation indorsement of firm note 
 for husband. 
 
 Cited in footnote to Kitchen v. Chapin, 57 L. R.. A. 914, which holds married 
 woman liable on her guaranty of note owned by her and payable to her order. 
 
 Cited in notes ( 7 L. R. A. 641) on wife's capacity to contract; (19 L. R. A. 
 226) on women included in term "persons." 
 Estoppel. 
 
 Cited in Prescott Xat. Bank v. Butler, 157 Mass. 550, 32 X. E. 909, holding 
 invalidity of note made on Sunday not matter of defense in action by purchaser 
 against indorser; Wisdom v. Shanklin, 74 Mo. App. 431, holding maker of nego- 
 tiable note estopped to deny wife's capacity as payee to indorse same to pur- 
 chaser for value. 
 Sufficiency of affidavit in insolvency proceeding's. 
 
 Cited in Clement v. Bullens, 159 Mass. 196, 34 N. E. 173, holding affidavit on 
 information and belief sufficient to support petition for examination of insolvent. 
 Review of proceedings of insolvency court. 
 
 Cited in Jaquith v. Fuller, 167 Mass. 128, 45 X. E. 54, denying writ of pro- 
 hibition against insolvency court, where error correctable by appeal. 
 
 6 L. R. A. 383, HYLAXD v. HABICH, 150 Mass. 112, 15 Am. St. Rep. 174, 22 
 
 N. E. 765. 
 Termination of suretyship. 
 
 Cited in Valentine v. Donohoe-Kelly Bkg. Co. 133 Cal. 196, 65 Pac. 381, holding 
 estate of guarantor of bank account not liable for overdraft after notice to bank 
 of guarantor's death; Manitowoc County v. Truman, 91 Wis. 14. 64 X. W. 307,- 
 holding sureties on bond given by bank to secure deposit of county moneys not 
 discharged by renewal of deposit contract; Snattinger v. Topeka. 80 Kan. 347. 
 102 Pac. 508, holding a bond given by a bank to secure public deposits was a. 
 continuing security where it might at any time have been terminated by notice. 
 
 Cited in notes (23 L. R. A. 709) on effect on contract of guaranty of death of 
 party thereto; (8 L.R.A. 381) on construction of contract; (21 Eng. Rul. Cas. 
 671; (2 Brit. Rul. Cas. 944) on determination of liability of guarantor or surety 
 by his death. 
 
 Distinguished in Fewlass v. Keeshan, 32 C. C. A. 9, 60 U. S. App. 133, 88 
 Fed. 574, holding surety on cost bond liable for costs accruing after his death. 
 
 Disapproved in Gay v. Ward, 67 Conn. 156, 32 L. R, A. 820, 34 Atl. 1025, 
 holding death of guarantor not affect continuing guaranty without actual notice 
 to guarantee. 
 
 6 L. R. A. 384, TRUMBLE v. TERRITORY, 3 Wyo. 280, 21 Pac. 1081. 
 Presumption of malice. 
 
 Cited in State v. Vaughan, 22 Xev. 301, 39 Pac. 733, holding malice not always 
 presumed where intention to kill exists; Territory v. Lucero, 8 X. M. 555, 46 Pac. 
 18, holding no implication of malice from mere fact of killing; State v. Gibson. 
 43 Or. 189, 73 Pac. 333. holding conclusive presumption of intent to murder 
 from use of deadly weapon not arise where evidence shows circumstances of 
 
1079 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 390 
 
 justification; Territory v. Gutierrez. 13 X. M. 143, 79 Pac. 716, holding that 
 malice is not presumed from use of dangerous weapon. 
 
 Cited in note (34 L.R.A. (X.S.) 104) on presumption as to distinctive elements 
 of murder in first degree for use of deadly weapon. 
 Burden of proof of excuse or justification of crime. 
 
 Cited in State v. Pressler, 16 Wyo. 223, 92 Pac. 806, 15 A. & E. Ann. Cas. 93, 
 holding that where sanity is a material question in evidence in a murder trial the 
 burden of proof is still on the prosecution, to establish it. 
 Degree o f proof of matter in defense or justification of crime. 
 
 Cited in Zipferian v. People, 33 Colo. 141, 79 Pac. 1018; holding that it is 
 sufficient to sustain a plea of self defense if defendant raises a reasonable doubt 
 in the minds of the jury of any essential element of the charge; State v. Haz- 
 let, 16 X. D. 436, 113 X. \V. 374, holding that accused sufficiently reports the 
 prima facie case of the prosecution by establishing a reasonable doubt whether 
 he did not act in self defense and it was error to require a preponderance. 
 
 Cited in note (19 L.R.A. (N.S.) 489) on applicability of rule of reasonable 
 doubt to self-defense in homicide. 
 
 6 L. R. A. 387, STOXER v. RICE, 121 Ind. 51, 22 X. E. 968. 
 Riparian owner of fractional section of non-navigable lake. 
 
 Cited in John Hilt Lake Ice Co. v. Zahrt, 29 Ind. App. 478, 62 N. E. 509; 
 Kean v. Calumet Canal & Improv. Co. 190 U. S. 459, 47 L. ed. 1137, 23 Sup. Ct. 
 Rep. 651, Brophy v. Richeson, 137 Ind. 115, 36 X. E. 424, holding government 
 grant of fractional quarter, the remainder of which covered in part by inland 
 on-navigable lake, includes whole quarter; Tolleston Club v. State, 141 Ind. 
 207, 38 X. E. 214, holding whole sections including both sides of meander lines, 
 within list of swamp lands describing same as "all of section," etc.; Concord Mfg. 
 Co. v. Robertson, 66 X. H. 28, 18 L. R, A. 694, 25 Atl. 718, upholding classifica- 
 tion of lakes and ponds by acreage; Poynter v. Chipman. 8 Utah, 450, 32 Pac. 
 690. holding that grant of land to shore of inland lake confers right to follow 
 water in recession; Johnson v. Hurst, 10 Idaho, 319, 77 Pac. 784, holding that 
 patent to settler abutting on line which purports to meander navigable stream 
 extends so as to include land to stream. 
 
 Cited in note (18 L. R. A. 696) as to ownership of bed of lakes and ponds. 
 
 Disapproved in Hardin v. Jordan, 140 U. S. 398, 35 L. ed. 439, 11 Sup. Ct. 
 Rep. 808, and Lamprey v. State, 52 Minn. 195, 18 L. R, A. 677, 38 Am. St. Rep. 
 541. .">3 X. YV. 1139, holding grant of land bounded on inland non-navigable lake 
 includes fee to center; Lembeck v. Xye, 47 Ohio St. 349, 8 L. R. A. 581, 21 Am. 
 St. Rep. 828, 24 X. E. 686. holding that grant of land adjoining non-navigable 
 lake goes to center unless margin distinctly referred to; Fuller v. Shedd, 161 
 111. 486. 33 L. R, A. 159, 52 Am. St. Rep. 3SO. 44 X. E. 286, holding that grant 
 of land bounded by meandered lake conveys only to water's edge. 
 Effect of officer's appearance in conrt. 
 
 Cited in note (11 L. R. A. 370) as to law authorizing suit against state. 
 Conclusiveiiess of judgment. 
 
 Cited in State ex rel. Moore v. Clinton County. 162 Ind. 591, 68 N. E. 295, 
 holding that public notice under statute to cancel aid voted is conclusive under 
 persons in interest who might have come in and litigated. 
 
 6 L. R. A. 390. AXDERSOX v. JETT, 89 Ky. 375, 12 S. W. 670. 
 Illegal combinations. 
 
 Cited in State ex rel. Crow v. Firemen's Fund lus. Co. 152 Mo. 47, 45 L. R. A. 
 
L.R.A. 390] L. R. A. CASES AS AUTHORITIES. 1080 
 
 377, 52 S. W. 595, denying right of insurers to contract among themselves for 
 maintenance of rates; Huston v. Reutlinger, 91 Ky. 343, 34 Am. St. Rep. 225, 
 15 S. W. 867, holding void by-laws of underwriters, limiting number and pay of 
 solicitors, and time of employment, or employment of solicitor severing from 
 another member within one year; Gamewell Fire Alarm Teleg. Co. v. Crane, 
 160 Mass. 57, 22 L. R. A. 677, 39 Am. St. Rep. 458, 35 N. E. 98, holding sale of 
 letters patent and improvements, with vendor's stipulation to manufacture or sell 
 machines for same purpose for ten years, against public policy; Milwaukee 
 Masons & Builders' Asso. v. Niezerowski, 95 Wis. 136, 37 L. R. A. 130, 60 Am. St. 
 Rep. 97, 70 N. W. 166, holding rule of builders' association requiring all bids to 
 be submitted to committee's examination, and that 6 per cent be added to 
 amount of lowest bid, void; Brown v. Jacobs' Pharmacy Co. 115 Ga. 435, 57 L. 
 R. A. 551, 90 Am. St. Rep. 126, 41 S. E. 553, holding combination of druggists 
 to compel another druggist to observe prices, or to prevent their wholesalers 
 from selling to him, void; Tuscaloosa Ice Mfg. Co. v. Williams, 127 Ala. 123, 50 
 L. R. A. 180, 85 Am. St. Rep. 125, 28 So. 669, holding contract to discontinue 
 use of ice machine in consideration of payment by owner of only other machine 
 in town void; Lovejoy v. Michels, 88 Mich. 28, 13 L. R. A. 775, 49 N. W. 901, 
 holding price fixed by combination of manufacturers with sole reference to per- 
 sonal interests, not determinative of price of goods ordered without agreement 
 as to price; Seasongood, S. K. Co. v. Tennessee & 0. River Transp. Co. 21 Ky. L. 
 Rep. 1142, 49 L. R. A. 271, 54 S. W. 193, holding one of rival carriers not ab- 
 solved from liability to shippers for refusals to accept freight under agreement 
 only to accept freight destined for certain territory; United States v. Addyston 
 Pipe & Steel Co. 46 L. R. A. 133, 29 C. C. A. 155, 54 U. S. App. 723, 85 Fed. 286, 
 holding void, combination of manufacturers in several states to regulate sales 
 and prices in many states; Ferd Heim Brewing Co. v. Belinder, 97 Mo. App. 70, 
 71 S. W. 691, holding brewers' agreement to sell to no one indebted to parties 
 thereto illegal; State ex rel. Crow v. Armour Packing Co. 173 Mo. 388, 61 L. 
 R. A. 473, 96 Am. St. Rep. 515, 73 S. W. 645, holding combination of packing 
 houses to control price of meat illegal; JStna Ins. Co. v. Com. 106 Ky. 870. 45 
 L. R. A. 3,58, 51 S. W. 624, holding combination for maintenance of insurance 
 rates not indictable at common law; Queen Ins. Co. v. State, 86 Tex. 266, 22 
 L. R. A. 492, 24 S. W. 397, sustaining combination to enforce uniform rates of 
 insurance and of agents' commissions; Arnold v. Jones Cotton Co. 152 Ala. 505, 
 12 L.R.A. (N.S.) 154, 44 So. 662, holding that an agreement between two buyers 
 of cotton that each would pay the other ^ of a cent for every pound pur- 
 chased and give the other first opportunity to supply certain demands for cotton 
 is illegal; demons v. Meadows, 123 Ky. 183, 6 L.R.A. (N.S.) 851, 124 Am. SI. Rep. 
 339, 94 S. W. 13, holding that an agreement between competing proprietors of 
 hotels itt a town whereby one agrees to close his hotel for three years and the 
 other agrees to pay him a certain sum monthly during the time is illegal; 
 Louisville & N. R. Co. v. Central Stock Yards Co. 133 Ky. 177, 97 S. W. 778; 
 holding that a contract between railroad and stock yard company in which the 
 railroad agrees to establish no other stock yard in the city and to deliver all 
 ^stock shipped over its road to the stock yard company is illegal; Merchants' Ice 
 & Cold Storage Co. v. Rohrman, 138 Ky. 551, 30 L.R.A. (N.S.) 981, 137 Am. 
 St. Rep. 390, 128 S. W. 599, holding that contracts looking to consolidation of ice 
 plants in certain city and intended for purpose of controlling market, are invalid, 
 although no effort was made to fix price of ice in local market; Barrone v. Moseley 
 Bros. 144 Ky. 702, 139 S. W. 869, holding that contract having as sole object 
 restriction of competition is void; State ex rel. Hadley v. Standard Oil Co. 218 
 Mo. 461, 116 S. W. 902, holding that a pool or agreement between oil companies 
 
]081 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 392 
 
 whereby competition was stifled and a buying by Standard Oil Company of New 
 Jersey of a majority of stock of all competing companies is an illegal combina- 
 tion in restraint of trade; DeWitt Wire-Cloth Co. v. New Jersey Wire-Cloth Co. 
 1 (5 Daly, 532, 14 N. Y. Supp. 277, holding an agreement between manufacturers, 
 in which each agrees under heavy penalty not to sell at less than stipulated 
 price is contrary to public policy and illegal. 
 
 Cited in footnotes to Pittsburgh Carbon Co. v. McMillin, 7 L. R. A. 46, which 
 holds party to illegal trust combination not entitled to proceeds as against re- 
 ceiver of trust assets; Newell v. Meyendorff, 8 L. R. A. 440, which holds valid, 
 contract giving exclusive agency in certain territory for sale of particular brand 
 of cigars. 
 
 Cited in notes (13 L. R. A. 770) as to effect of fixing price by illegal combina- 
 tion; (8 L. R. A. 497) as to effect of contracts against public policy; (8 L. R- 
 A. 500) as to illegal nature of monopolies; (6 L.R.A. (N.S.) 849) on validity of 
 stipulation not to engage in particular business, not ancillary to lawful con- 
 tract; (74 Am. St. Rep. 249, 272) on combinations constituting unlawful trusts; 
 (41 L. ed. U. S. 1010) on validity of contracts in restraint of trade. 
 
 Distinguished in United States v. Trans-Missouri Freight Asso. 24 L. R. A. 
 83, 4 Inters. Com. Rep. 5, 7 C. C. A. 74, 19 U. S. App. 36, 58 Fed. 70; Affirming- 
 53 Fed. 449, sustaining agreement by competing railways for maintenance of 
 reasonable rates and equal facilities for interchange of traffic, without illegally 
 limiting competition; Louisville Bd. of Fire Underwriters v. Johnson, 133 Ky. 
 805, 24 L.R.A. (N.S.) 157, 119 S. W. 153, holding that a by-law of a voluntary 
 unincorporated association of fire underwriters providing that no member shall 
 take an agency of a company already having an agency in the city is valid. 
 
 6 L. R. A. 392, GOULDS v. BROPHY, 42 Minn. 109, 43 N. W. 834. 
 Implied warranty of fitness. 
 
 Cited in Wisconsin Red Pressed-Brick Co. v. Hood, 54 Minn. 548, 56 N. W.. 
 165, Same Case on Subsequent Appeal in 60 Minn. 404, 51 Am. St. Rep. 539, 62 
 N. W. 550, holding, on sale of "common bricks, no warranty of fitness for in- 
 tended purpose; J. Thompson Mfg. Co. v. Gunderson, 106 Wis. 454, 49 L. R. 
 A. 862, 82 N. W. 299, holding no implied warranty of fitness of machines manu- 
 factured according to model and specifications; J. I. Case Plow Works v. Niles & 
 S. Co. 90 Wis. 603, 63 N. W. 1013, holding goods manufactured according to 
 specifications not warranted fit for known purpose; Milwaukee Boiler Co. v.. 
 Duncan, 87 Wis. 125, 41 Am. St. Rep. 33, 58 N. W. 232, holding boiler manu- 
 factured according to specifications not warranted fit for known purpose; Fair- 
 banks, M. & Co. v. Baskett, 98 Mo. App. 70, 71 S. W. 1113, holding vendor of 
 engine of designated kind and character does not impliedly warrant fitness for 
 intended uses; Kinkel v. Winne, 67 Kan. 104, 62 L. R. A. 598, 72 Pac. 548, hold- 
 ing seller of fire-insurance expiration register does not impliedly warrant ex- 
 clusiveness of information contained; Gilcrest Lumber Co. v. Wilson. 84 Neb. 587, 
 121 N. W. 989, holding that there is no implied warranty of fitness for purpose, 
 where dealer orders for vender machine not handled by dealer; Stanford v. 
 National Drill & Mfg. Co. 28 Okla. 443, 114 Pac. 734. holding that no implied 
 warranty exists that machinery will answer particular purpose; Mine Supply Co. 
 v. Columbia Min. Co. 48 Or. 394, 86 Pac. 789, holding that if the purchaser 
 gets the article he buys, and buys that which he gets, he takes the risk of suit- 
 ableness for the intended purpose, uness there is express warranty: Davis Calyx 
 Drill Co. v. Mallory, 69 L.R.A. 978, 69 C. C. A. 662, 137 Fed. 335; Reynolds 
 v. General Electric Co. 73 C. C. A, 23, 141 Fed. 556; Ehrsam v. Brown, 76 Kan. 
 210, 15 L.R.A. (N.S.) 881, 91 Pac. 179, holding that where certain machines- 
 
C L.R.A. 392] L. R. A. CASES AS AUTHORITIES. 1082 
 
 were ordered and delivered, there was no implied warranty that they would 
 serve the purpose intended; Crankshaw v. Schweizer Mfg. Co. 1 Ga. App. 378, 
 58 S. E. 222, holding that the knowledge of the vendor of the intended use of the 
 machine, is immaterial to raise an implied warranty of a fitness to that use; 
 Holt v. Sims, 94 Minn. 159, 102 N. W. 386, holding that where the purchaser 
 accepted the proposals of the vendor to furnish and install a heating plant, 
 there was no warranty that it would serve the purpose intended; Colchord 
 Machinery Co. v. Loy-Wilson Foundry & Mach. Co. 131 Mo. App. 548, 110 S. W. 
 630, holding that where the person got the identical machine that he selected 
 and ordered there was no warranty that it was fit for the purpose intended ; 
 Rollins Engine Co. v. Eastern Forge Co. 73 N. H. 94, 68 L.R.A. 443, 59 Atl. 382, 
 holding in the absence of express warranty, one who undertook to forge a piston 
 rod for a certain engine, there was no warranty that it would be free from 
 defects not apparent. 
 
 Cited in notes (6 L. R. A. 375) on implied warranty on sale of goods; (22 
 L. R. A. 188) on implied warranty of fitness of property bought for special 
 purpose; (6 L. R. A. 789) on distinction between sales and contracts to manufac- 
 ture; (35 L.R.A. (N.S.) 286) on effect of sale with particular description of kind 
 or quality; (102 Am. St. Rep. 618) on implied warranty of quality. 
 
 Distinguished in Haines, J. & C. Co. v. Young, 13 Pa. Super. Ct. 315, holding 
 article manufactured for particular purpose impliedly warranted to be fit. 
 
 6 L. R. A. 394, STATE ex rel. BALTZELL v. STEWART, 74 Wis. 620, 43 N. 
 
 W. 947. 
 Special legislation. 
 
 Cited in Carson v. St. Francis Levee Dist. 59 Ark. 535, 27 S. W. 590 (disap- 
 proved in dissenting opinion ) , sustaining act conferring corporate powers on 
 public levee board; State ex rel. Turner v. Bell, 91 Wis. 274, 64 N. W. 846, hold- 
 ing act repealing special drainage act and authorizing levy of tax to pay ex- 
 penses under same void; State ex rel. Davis v. Evans, 122 Tenn. 192, 122 S. W. 81, 
 holding that statute requiring county superintendents of schools to possess liter- 
 ary qualifications to be evidenced by certificate of state board of education is not 
 unconstitutional as delegating legislative power; Globe Elevator Co. v. Andrew, 
 144 Fed. 871, holding that a statute creating the Superior Grain & Warehouse 
 Commission and making it a corporation is not invalid on the ground that it 
 specially creates corporate power, the place in question being unique and pecu- 
 liar. 
 
 Distinguished in State ex rel. Church Mut. Ins. Co. v. Cheek, 77 Wis. 287, 46 
 N. W. 163, holding act to enable Methodist church or annual conferences to form 
 insurance corporation, which speaks throughout of but one corporation, void. 
 Police powers as to drainage. 
 
 Cited in Muskego v. Drainage Comrs. 78 Wis. 44, 47 N. W. 11, holding drain- 
 age act valid exercise of police power; Wilson v. Sanitary District, 133 111. 
 467, 27 N. E. 203, upholding validity of act creating drainage corporation in- 
 cluding both city and county; Morrison v. Morey, 146 Mo. 561, 48 S. W. 629, 
 holding levee district political subdivision of state which may be created under 
 police power of state; Rude v. St. Marie, 121 Wis. 642, 99 N. W. 460, holding 
 that the laying of a drain and assessments for same are a valid exercise of police 
 power regulation conducive of public health. 
 
 Cited in note (49 L. R. A. 786) as to drainage of private lands as public pur- 
 pose for which power of eminent domain may be exercised. 
 Necessity of condemnation. 
 
 Cited in Wisconsin Water Co. v. Winans, 85 Wis. 39, 20 L. R. A. 666, 39 
 
1083 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 399 
 
 Am. St. Rep. 813, 54 N. W. 1003, holding question of necessity for taking land 
 by eminent domain for legislature. 
 
 Cited in notes (11 L.R.A. (X.S.) 941) on necessity of taking particular land by 
 eminent domain, as a judicial question; (22 L.R.A. (N.S.) 7, 13, 14, 58, 67, 69) 
 on judicial power over eminent domain. 
 
 Notice and rii.-. lit of appeal. 
 
 Cited in Roundenbush v. Mitchell, 154 Ind. 620, 57 N. E. 510, upholding drain- 
 age act providing for notice and hearing before commissioner and upon ap- 
 peal, and prohibiting assessment in absence of compensating benefits; Towns v. 
 Klamath County, 33 Or. 234, 53 Pac. 604, holding notice of application for 
 highway location not essential, if nonconsenting abutter has right of appeal; 
 Ross v. Wright County, 128 Iowa, 437, 1 L.R.A. (N.S.) 437, 104 N. W. 506, 
 holding it not essential that notice of the proceedings to establish a ditch be 
 given where notice of the assessment is given ; Ross v. Wright County, 128 Iowa, 
 438, 1 L.R.A. (N.S.) 438, 104 N. W. 506, holding right of appeal from judi- 
 cial hearing of ditch assessment held on notice was not requisite to due process 
 of law. 
 
 Cited in footnotes to Branson v. Gee, 24 L. R. A. 355, which holds act author- 
 izing taking of gravel from private lands without notice, for highway repairs, 
 Talid; Brown v. Markham, 30 L. R. A. 84, which holds valid, statute au- 
 thorizing logger's lien without notice to owner, but giving subsequent opportu- 
 nity to intervene. 
 Validity of drainage assessments. 
 
 Cited in Morrison v. Morey, 146 Mo. 564, 48 S. W. 629, holding levee assess- 
 ments for benefits constitutional, not being a tax. 
 Legislative power or action. 
 
 Cited in State ex rel. Kettle River Quarries Co. v. Duis, 17 N. D. 324, 116 
 N. W T . 751, holding that an ordinance providing for the paving of certain streets 
 is legislative in its character and subject to mayor's veto. 
 Delegated legislative power. 
 
 Cited in Re Appointment of Revisor, 141 Wis. 600, 124 N. W. 670, holding 
 that a statute authorizing a court or judges to appoint a statute revisor where 
 his duties are to assist the court in the discharge of judicial duties, is consti- 
 tutional. 
 Local improvements and taxes. 
 
 Cited in Ross v. Wright County, 128 Iowa, 438, 1 L.R.A. (N.S.) 438, 104 N. W. 
 500. on delegation by legislative power of erection of local tax districts; Shreves 
 v. Gibson, 76 Kan. 712, 92 Pac. 584, holding that an appeal from an order of 
 commissioners requiring a drain and a final determination of amount of labor 
 to l>e performed by each person interested before a jury selected by probate 
 judge is not an attempt to put legislative functions upon a judicial tribunal. 
 
 6 L. R. A. 399, FILER v. FILER, 77 Mich. 469, 43 N. W. 887. 
 Effect of decree in divorce snit. 
 
 Cited in note (6 L. R. A. 488) as to effect of divorce on articles of separa- 
 tion. 
 
 Contempt proceedings to enforce payment of alimony. 
 
 Cited in note (137 Am. St. Rep. 878, 885) on contempt proceedings to enforce 
 payment of alimony. 
 
6 L.R.A. 400] L. R. A. CASES AS AUTHORITIES. 1084 
 
 fl L. R. A. 400, FARWELL v. BECKER, 129 111. 201, 16 Am. St. Rep. 267, 21 
 
 N. E. 792. 
 Xiiu n-ii.-. s ion of items or amounts give rift-lit of appeal. 
 
 Cited in Stettauer v. Boldenweck, 183 111. 189, 55 N. E. 709, and Aultman 
 & T. Co. v. Weir, 134 111. 138, 24 N. E. 771, holding decision of appellate court 
 final in creditor's action to set aside sale, where claims less than $1,000; Payne 
 v. Chicago, R. I. & P. R. Co. 170 111. 609, 48 N. E. 1053, holding that supreme 
 court will dismiss appeal in garnishment against one of several garnishees whose 
 individual liability less than $1,000; Hutmacher v. Anheuser-Busch Brewing Asso. 
 198 111. 614, 64 N. E. 1092, holding that several amounts claimed in consoli- 
 dated garnishment proceedings cannot be aggregated to confer jurisdiction on 
 supreme court; Davis v. Upham, 191 111. 373, 61 N. E. 76, holding appellate 
 court decision final where each of several mechanic's liens less than $1,000; 
 Garden City Sand Co. v. American Refuse Crematory Co. 205 111. 46, 68 X. E. 
 724, dismissing appeal to supreme court in proceeding to enforce stockholders' 
 liability for unpaid balances, as to stockholders whose individual liability is 
 less than $1,000; Spangler v. Green, 21 Colo. 508, 52 Am. St. Rep. 259, 42 
 Pac. 674, holding several judgments in mechanic's lien proceeding cannot be 
 aggregated to confer jurisdiction on appellate court; Bache v. Ward, 225 111. 324, 
 80 N. E. 330, holding that an appeal from the allowance of a single item in an 
 executor's account will not lie where the item amounts to less than $1000.00 ; 
 Teter v. Larson, 229 111. 592, 82 X. E. 383, holding that an appeal from a decree 
 enforcing stockholders liability for corporate debts, will not lie where each 
 separate liability is less than $1000.00 and no certificate of importances has 
 been issued; Singer v. Singer, 122 Tenn. 689, 126 S. W. 1085, holding that court 
 of civil appeals and not supreme court has jurisdiction of appeal where each of 
 several claimants sue individually in chancery for separate sums less than one 
 thousand dollars, not aggregate of which exceeds that amount. 
 
 Distinguished in Merritt v. Crane Co. 225 111. 184, 80 X". E. 103, holding that 
 where liens aggregating more than $1000.00 were established by several parties 
 an appeal will not lie against a lienor whose claim is less than $1000.00 though, 
 the same evidence is relied upon to defeat all the liens. 
 Contribution between joint tort feasors. 
 
 Cited in Vandiver v. Pollak, 107 Ala. 555, 54 Am. St. Rep. 118, 19 So. 180, 
 and Selz v. Guthman. 62 111. App. 635, holding creditors wrongfully procuring 
 attachment liable to contribute to one paying judgment; Grimes v. Taylor, 93: 
 111. App. 497, holding plaintiff in replevin assisting in seizure liable to indem- 
 nify officer; First Nat. Bank v. Avery Planter Co. 69 Xeb. 337, 111 Am. St Rep. 
 541, 95 X. W. 622, holding that contribution among attaching creditors will be 
 enforced where the attachment proceedings were in good faith though in fact 
 the acts of the creditors were tortious; Fulton County Gas & Electric Co. v. 
 Hudson River Teleph. Co. 130 App. Div. 347, 114 X. Y. Supp. 642, holding that 
 where a judgment is recovered against joint tort-feasors and by an unjust ar- 
 rangement is collected of the innocent party, an action will lie for indemnity. 
 
 Cited in notes (6 L.R.A. (X.S.) 600) on joint liability of creditors for wrongful 
 levy on several attachments; (16 Am. St. Rep. 254) on negligence of two or more 
 persons resulting in injury to third person. 
 
 Distinguished in Frankenthal v. Lingo, 16 Tex. Civ, App. 232, 40 S. W. 815, 
 holding creditors wrongfully procuring attachment not liable to contribute to 
 judgment recovered against first creditor. 
 
 6 L. R. A. 403, BEAVER v. BEAVER, 117 N. Y. 421, 15 Am. St. Rep. 531, 22 
 
 N. E. 940. 
 Second appeal in 137 X. Y. 59, 32 N. E. 998. 
 
1085 L. R. A. CASES AS AUTHORITIES, [6 L.R.A. 403 
 
 When trust is created. 
 
 Cited in Beeman v. Beeman, 88 Hun, 15. 34 N. Y. Supp. 484, holding trust 
 not created by conveyances by father to children, with mortgages back, condi- 
 tioned to pay sum for his life and then to daughter named; Sullivan v. Sulli- 
 van, 39 App. Div. 100, 56 X. Y. Supp. 693, holding trust for niece not created 
 by certificate of deposit to order of depositor, and to niece in event of death, 
 but retained by depositor; Fellows v. Fellows, 69 N. H. 345, 46 Atl. 474, holding 
 mortgage conditional upon support of mortgagee for life, and then to pay same 
 to persons named, not irrevocable trust from which mortgagee cannot release 
 mortgagor; Domestic Missions v. Mechanics' Sav. Bank, 40 App. Div. 121, 54 
 N. Y. Supp. 28, holding trust created by addition to depositor's name of words 
 "in trust for board of missions;" Mitchell v. Bilderback, 159 Mich. 490, 124 X. 
 W. 557, holding that an oral agreement by owner of equity of redemption to sell 
 and divide proceeds of sale with purchasing mortgagee, through foreclosure of 
 mortgage, is not a valid trust; Frost v. Frost, 165 Mich. 593, 131 X. W. 60, 
 to the point that creation of trust may be inferred from facts and circumstances 
 of case, and does not depend on particular form of words; McKee v. Allen, 204 
 Mo. 685, 103 S. W. 76, holding that taking conveyances in the name of a third 
 person and loaning money and taking notes in her name is in itself insufficient 
 to establish a trust; Webb's Academy v. Hidden, 118 App. Div. 716, 103 X. Y. 
 Supp. 659, holding that where agreement could be repudiated no trust was cre- 
 ated; Re Kaupper, 141 App. Div. 59, 125 X. Y. Supp. 878; Carlon v. Ryan, 73 
 Misc. 601, 133 X. Y. Supp. 629, to the point that it is not necessary that there 
 should be express declaration of trust if attaching circumstances disclose that 
 trust was to be created and its purpose. 
 
 Cited in footnote to Sayre v. Weil 15 L. R. A. 544, which holds irrevocable, 
 deposit to one's self as trustee for specified children. 
 
 Cited in notes (15 Am. St. Rep. 583) on creation of express trusts; (34 Am. 
 St. Rep. 196, 213, 214, 220, 222), on voluntary trusts arising from declarations 
 of trustor. 
 
 Distinguished in Domestic Missions v. Mechanics' Sav. Bank, 24 Misc. 597, 54 
 N. Y. Supp. 28, holding declaration of trust evidenced by transfer of bank 
 account to board of domestic missions at request of depositor. 
 Trust in deposit in name of another. 
 
 Cii<-d in Re Barefield, 36 Misc. 748, 74 X. Y. Supp. 472, holding deposit by ad- 
 ministratrix of her own money in trust for estate of decedent not of itself 
 declare trust in estate; Peoples Sav. Bank v. Webb, 21 R. I. 221, 42 Atl. 874. 
 holding deposit by one in name of his infant son not of itself declare a trust in 
 latter's favor; Peninsular Sav. Bank v. Wineman, 123 Mich. 259, 81 X. W. 1091, 
 holding gift to wife not created by mere transfer of deposit by husband to wife's 
 name, with pass-book in her name but retained by him; Devoe v. Lutz, 133 App. 
 Div. 358, 117 X. Y. Supp. 339, holding that where a wife, having no separate 
 property and inheriting none during coverture, takes all her husband's earnings 
 to use for living expenses and to deposit surplus to his use, a valid trust is 
 created in favor of the husband in the deposits made in her name. 
 
 Distinguished in Cunningham v. Davenport, 147 X. Y. 46, 32 L. R. A. 376, 
 49 Am. St. Rep. 641, 41 X. E. 412, Reversing 74 Hun, 55, 26 N. Y. Supp. 
 ~.}'1'2. holding that administrator of one in whose name deposit was made in 
 savings bank, of which he never knew, cannot recover amount withdrawn by de- 
 positor: Millard v. Clark. 80 Hun, 146, 29 X. Y. Supp. 1012, holding deposit 
 started by father with child's savings, in her name and acknowledged by him 
 to be hers, held in trust for her though deposited subject to his control. 
 
6 L.R.A. 403] L. R. A. CASES AS AUTHORITIES. 10SS 
 
 Deposit in alternative named. 
 
 Cited in McElroy v. Albany Sav. Bank, 8 App. Div. 48, 40 N. Y. Supp. 422, 
 holding that deposit in savings bank in account with alternative names of hus- 
 band and wife, or survivor, belongs to survivor; Grafing v. Irving Sav. Inst. 
 37 Misc. 22, 74 N. Y. Supp. 741, holding savings bank protected in payment to- 
 executrix of one in whose name "or" another deposit had been made, on pre- 
 sentation of pass-book; Norway Sav. Bank v. Merriam, 88 Me. 150, 33 Atl. 840 
 holding trusts not created by deposits in alternative names, when depositor 
 retained pass-books which were found after her death among her belongings; Den- 
 igan v. Hibernia Sav. & L. Soc. 127 Cal. 141, 59 Pac. 389, holding gift to 
 husband of deposit made by wife in her name "or" that of husband not evi- 
 denced by mere possession of pass-book; Hannon v. Sheehan, 46 N. Y. S. R. 566,. 
 19 N. Y. Supp. 698, holding gift inferred from one sister to another of deposit 
 in name of depositor "or" sister, with pass-book found where latter lived; Kelly 
 v. Home Sav. Bank, 103 App. Div. 149, 92 X. Y. Supp. 578. reversing 44 Misc. 
 104, 89 X. Y. Supp. 770. holding on a deposit by "B. or to her daughter or the 
 survivor of them," the question is one of fact whether a gift was meant: Kelly 
 v. Beers, 194 X. Y. 55, 128 Am. St. Rep. 543, 86 X. E. 980, holding change of 
 names of accounts to include daughter or survivor, expressed and designed to 
 effect daughter's ownership was gift. 
 Deposit in trust for another. 
 
 Cited in Lee v. Kennedy, 25 Misc. 142, 54 X. Y. Supp. 155, holding mere de- 
 posit in one's name, "for niece" named, not declaration of trust; Bishop w 
 Seaman's Bank for Savings, 33 App. Div. 182, 53 X. Y. Supp. 488. holding de- 
 posit "in trust" for another raises presumption of trust and does not lapse by 
 death of cestui que trust; Devlin v. Hinman, 34 App. Div. 109, 54 X. Y. Supp_. 
 496, holding evidence disclosed no intention to make present gift of money de- 
 posited by father in own name as "trustee" for two children, and continually 
 drawn on by himself; Robertson v. McCarty, 54 App. Div. 106, 66 X. Y. Supp. 
 327, holding deposit "in trust" for brother created irrevocable trust notwith- 
 standing retention of bank book and that beneficiary was unaware of it until 
 death of depositor; Harrison v. Totten, 29 Misc. 700, 62 X. Y. Supp. 754 r . 
 holding deposit '"for" another does not create irrevocable trust where depositor re- 
 tains book and draws from account; Jenkins v. Baker, 77 App. Div. 513, 78 X. Y. 
 Supp. 1074, Reversing 36 Misc. 56, 72 X. Y. Supp. 546, and Re Totten, 89 App. 
 Div. 371, 85 X. Y. Supp. 928, Reversing 38 Misc. 351, 77 X. Y. Supp. 928, hold- 
 ing valid trust created by deposit in trust for another, subsequently with- 
 drawn; Farleigh v. Cadman, 159 X. Y. 172, 53 X. E. 808, holding deposit made 
 by one, acting as father, in his own name in trust for child and known to her, 
 held in trust; Grafing v. Heilman, 1 App. Div. 263, 37 X. Y. Supp. 253, hold- 
 ing deposit in name of depositor in trust for another held in trust for bene- 
 ficiary, although interest reserved to depositor and principal to go only on. 
 death of depositor; Macy v. Williams, 83 Hun, 249, 31 X. Y. Supp. 620, hold- 
 ing deposits made in name of depositor "in trust" for several persons named, not 
 intended as gifts; Decker v. Union Dime Sav. Inst. 15 App. Div. 554, 44 N. Y. 
 Supp. 521, holding circumstances justified finding that trust was created in de- 
 posit in name of depositor as "trustee" for another; Re Mueller, 15 App. Div. 
 69, 44 X. Y. Supp. 280, holding depositor does not devest himself of title to- 
 deposit in own name in trust for another, if there is no intention to give bene- 
 ficial interest; Martin v. Martin, 46 App. Div. 448, 61 X. Y. Supp. 813, hold- 
 ing deposit in bank held in trust by one in name of another, coupled with 
 statement that depositor "may draw," and declaration that money was to 
 belong to donee; Re Biggars, 39 Misc. 430, 80 X. Y. Supp. 214, holding valid; 
 
1087 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 403 
 
 trust created by deposit "in trust for" daughter who was not informed thereof, 
 though depositor made withdrawals; Dickie v. Adams, 40 Misc. 90, 81 N. Y. 
 Supp. 336, holding evidence of deposit in name of one person in trust for 
 another, subsequently withdrawn by individual check, insufficient to establish 
 trust; Kelly v. National Sav. Bank, 124 App. Div. 105, 108 X. Y. Supp. 216 
 (dissenting opinion), on insufficiency of name or form of deposit of itself; 
 Re Totten, 170 X. Y. 121, 70 L.R.A. 715 71 N. E. 748, 1 A. & E. Ann. Gas. 900, 
 holding that a deposit made by depositor in trust for another is not an irre- 
 vocable trust, and is terminated by the account subsequently being withdrawn : 
 Re Bulwinkle, 107 App. Div. 333, 95 N. Y. Supp. 176. holding that where 
 money is deposited in name of depositor in trust for L. who died before depositor 
 and subsequently the words "in trust for L." were obliterated from pass book 
 the tentative trust came to an end upon death of L. ; Garvey v. Clifford. 114 
 App. Div. 196, 99 X. Y. Supp. 555, holding that money deposited in depositor's 
 name in trust for his married sister in her maiden name, interest drawn by de- 
 positor and no change made in deposit on death of sister, created no trust; 
 Re United States Trust Co. 117 App. Div. 181, 102 X. Y. Supp. 271, holding that 
 a tentative trust created by deposit in name of father in trust for his son term- 
 inates ipso facto on son's death. 
 
 Distinguished in Hyde v. Kitchen, 69 Hun, 282, 23 X. Y. Supp. 573, holding 
 irrevocable trust shown by deposit of money in bank in name of depositor in 
 trust for brother named, though bank book retained ty depositor; Williams v. 
 Brooklyn Sav. Bank, 51 App. Div. 337, 64 X T . Y. Supp. 1021, holding deposit 
 in name of depositor "in trust" for another showed prima facie intention to 
 create trust, which was not defeated by retention of book and withdrawal of 
 part of fund; Lattan v. Totten, 44 Misc. 116, 89 X. Y. Supp. 761, holding that a 
 deposit in a savings bank by one, in his sisters' names as trustees for his 
 daughters and delivery of pass book to them creates a valid trust; Fowler v. 
 Cowing, 152 Fed. 809, holding that where a father purchased bank stock in trust 
 for his children and stated to bank's officers that such was his purpose in pur- 
 chasing the stock, a valid trust was created. 
 "When acceptance of gift implied. 
 
 Cited in Matson v. Abbey, 70 Hun, 478, 24 X. Y. Supp. 284; Langworthy v. 
 Crissey, 10 Misc. 453, 31 X. Y. Supp. 85; Goelz v. People's Sav. Bank, 31 Ind 
 App. 75, 67 X. E. 232; O'Xeil v. Greenwood. 106 Mich. 582, 64 X. W. 511, 
 holding acceptance of gift beneficial to donee implied; Porter v. Gardner, 60 
 Hun, 575, 15 X. Y. Supp. 398, holding acceptance of colt given to nephew im- 
 plied: Podhajsky's Estate. 137 Iowa, 746, 115 X. W. 590. holding acceptance of 
 conveyance of land related back to time of delivery of deed to trustee who was to 
 turn it over to grantee on payment of trust money. 
 What constitutes grift. 
 
 Cited in Schwind v. Ibert, 60 App. Div. 380, 69 X. Y. Supp. 921, holding gift 
 not shown by statement by depositor that she put money in bank for daughter, 
 deposited in joint names of self and daughter; Simpson v. Harris. 21 Xev. 363, 
 31 Pac. 1009, holding gift not evidenced by declaration that one advancing 
 money to another will never enforce debt; Re Timerson, 39 Misc. 678, 80 X. Y. 
 Supp. 639, holding expressed intention to forgive debts, without delivery of 
 notes to makers, does not constitute gift; Re Munson, 25 Misc. 589, 56 X. Y. 
 Supp. 151, holding gift to son of personal property on farm not created where 
 father remained in possession; Re Taber, 30 Misc. 181, 63 X. Y. Supp. 728, hold- 
 ing evidence that gifts complete and not made under undue influence necessary 
 to support gifts from aged woman to nephew and adviser; Re Swade, 65 App. 
 
6 L.R.A. 403] L. R. A. CASES AS AUTHORITIES. 1088 
 
 Div. 595, 72 X. Y. Supp. 1030, holding gift causa mortis by one sister to another 
 evidenced by delivery of package which intestate declared in presence of others 
 contained all her valuable papers, which she gave to donee; Beaver v. Beaver. 
 137 X. Y. 63, 32 N. Y. Supp. 998, Reversing 62 Hun, 205, 16 X. Y. Supp. 470, 
 holding evidence failed to show completed gift; Hamer v. Sidway, 57 Hun, 234, 
 11 X. Y. Supp. 182, holding that promise to give nephew sum of money for ab- 
 staining from certain habits until specified age, but without delivery, not com- 
 pleted gift; Van Slooten v. Wheeler, 39 N. Y. S. R. 867, 15 X. Y. Supp. 591, 
 holding expression of intention to make gift of ring, followed by delivery, valid 
 transfer; Krummel v. Thomas, 5 Misc. 537, 25 X. Y. Supp. 833, holding deposit 
 in bank with declaration of intent to give if donee survive donor not sufficient 
 delivery; Matson v. Abbey, 70 Hun, 477, 24 N. Y. Supp. 284, holding valid 
 gift created by delivery of sealed assignment of insurance money due assignors; 
 Pickslay v. Starr, 59 N. Y. S. R. 606, 27 N. Y. Supp. 616, holding donor's own 
 check delivered and paid to donee amounted to gift, and not payment on ac- 
 count of salary; Bump v. Pratt, 84 Hun, 205, 32 X. Y. Supp. 538, holding 
 delivery of bonds to one person for third constituted valid gift; Gannon v. Mc- 
 Guire, 160 X. Y. 482, 73 Am. St. Rep. 694, 55 X. E. 7, Reversing 22 App. 
 Div. 48, 47 X. Y. Supp. 870, holding gift of bond and mortgage to mortgagor, 
 completed by delivery to her, not defeated by depositing them with mortgagor 
 for safe keeping; Re Small, 27 App. Div. 444, 50 X. Y. Supp. 341, holding 
 gift intended to be made by brother to sister not consummated by giving 
 her credit for sum on books of partnership of which he was member; Re Anthony, 
 40 Misc. 498, 82 X. Y. Supp. 789, holding husband's transfer to wife of money 
 invested in his firm, with expressed intention to provide for her, valid gift; 
 Wetherow v. Lord, 41 App. Div. 416, 58 X. Y. Supp. 778, holding delivery of 
 check by husband for part of deposit in names of himself and wife, together 
 with pass book, constituted gift of his half; Gilkinson v. Third Ave. R. Co. 47 
 App. Div. 473, 63 X. Y. Supp. 792, holding delivery of key of box in trust 
 company's vault containing certificates of stocks, with statement they were for 
 donee, constituted gift; Main's Appeal, 73 Conn. 642, 48 Atl. 965, holding 
 gift not created by deposit which depositor said she wished given to daughters 
 after her death; Telford v. Patton, 144 111. 625, 33 X. E. 1119, holding gift not 
 effected by taking certificate of deposit, retained by depositor, without declara- 
 tion of trust, in another's name; Kirk v. McCusker, 3 Misc. 278, 22 X. Y. Supp. 
 780, holding gift causa mortis not evidenced by delivery of pass books, where 
 donor subsequently withdrew part of account; Liebe v. Battmann, 33 Or. 245, 
 72 Am. St. Rep. 705, 54 Pac. 179, holding gift not disclosed by placing note in 
 addressed envelope found on table in room where writer shot himself; Rich- 
 ardson v. Emmett, 61 App. Div. 213, 70 N. Y. Supp. 546, holding gift created by 
 uncle's assignment of stock to niece and declaration that he had given it to 
 her although he collected dividends; Gilkinson v. Third Ave. R. Co. 47 App. 
 Div. 475, 63 X. Y. Supp. 792, holding gift created by placing certificates of stock 
 in deposit box and giving donee key. donor also retaining one; Grouse v. Jud- 
 son, 41 Misc. 342, 82 X. Y. Supp. 755, holding daughter entitled to certificate 
 of stock issued in her name, kept in safe deposit box of father, who had stated 
 he had given it to her; Allen-West Commission Co. v. Grumbles, 63 C. C. A. 
 404, 129 Fed. 290, holding delivery of assignment of stock, certificate being re- 
 tained by donor, not valid gift; McMahon v. Cronin 143 App. Div. 846. 128 
 N. Y. Supp. 723, to the point that deposit in bank in another's name for pur- 
 pose of conceding depositor's financial condition does not constitute gift; Hallen- 
 beck v. Hallenbeck, 44 Misc. 112, 89 X. Y. Supp. 780, holding that a deposit 
 coupled with the words "either to draw" under rules of bank which makes pre- 
 
1089 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 403 
 
 sentation of pass-book necessary, and retention of book by depositor, does not 
 show a complete gift; Re Seigler, 49 Misc. 191, 98 N. Y. Supp. 929, holding that 
 a savings account in name of oneself and son "payable to either or survivor" 
 and retention of pass-book by depositor does not constitute a gift; Gick v. Stumpf, 
 53 Misc. 88, 100 X. Y. Supp. 1109, holding that a writing containing declaration 
 that money in a bank is given to a son, delivered to him and put in his possession 
 and of donor's free will, is evidence of a valid gift; Re Kline, 65 Misc. 447, 121 
 N. Y. Supp. 1090, holding that a deposit by husband and wife of money belonging 
 to each, so that either or survivor could draw out, is not a gift inter vivos, but a 
 joint ownership with the incident of survivorship; Schneider v. Schneider, 122 
 App. Div. 778, 107 N. Y. Supp. 792, holding that a bank account opened in the 
 joint names of husband and wife with direction "to pay to either or the survivor" 
 and oral agreement that one half should be hers does not establish a gift of one 
 half the deposit to the wife; Hill v. Escort, 38 T?x. Civ. App. 490, 86 S. W. 367, 
 holding that delivery of pass-book to daughter together with order for pay- 
 ment is a valid gift though book and order are not presented to bank until after 
 donor's death; Tobin v. Tobin, 139 Wis. 498, 121 X. W. 144, holding that a 
 note and mortgage made by a father in his son's name and recorded, but nevei- 
 given nor intended to be given to son who knew nothing of their execution is not 
 a gift; Augsbury v. Shurtliff, 180 X'. Y. 146, 72 N. E. 927, holding that a written 
 direction to a bank in which a husband and wife have separate accounts, to merge 
 them and make them payable to either or survivor is not a gift inter vivos; 
 Robb v. Washington & J. College, 185 N. Y. 492, 78 X T . E. 359 (modifying 103 
 App. Div. 348, 93 N. Y. Supp. 92), holding a trust declared under seal was 
 without physical delivery of possession of evidences in writing of the obligations 
 given. 
 
 Cited in footnotes to Williamson v. Johnson, 9 L. R. A. 277, which holds 
 gift to enable fiance to pay wedding expenses conditional on marriage; Gam- 
 mon Theological Seminary v. Robbins, 12 L. R. A. 506, which holds instrument 
 declaring that holder gives note which he retains insufficient as gift; Porter v. 
 Woodhouse, 13 L. R. A. 64, which holds warranty deeds not delivered by donor 
 giving to third person. 
 
 Cited in notes (19 L. R. A. 700) on delivery of bank book to sustain gift of 
 money in bank; (21 L. R. A. 693) on undelivered written transfer or assign- 
 ment of property as a gift; (6 L. R. A. 515) on what constitutes gift inter 
 vivos; (1 L.R.A. (X.S. ) 792) on bank deposit for other person as gift or transfer 
 of title; (12 Eng. Rul. Cas. 434) on necessity of delivering gift intervivos. 
 
 Distinguished in Moore v. Fingar, 131 App. Div. 401, 115 X T . Y. Supp. 1035, 
 holding that a deposit by a husband in the names of himself and wife "payable to 
 either or the survivor" imports on its face a gift to her with absolute title to her 
 if she survives. 
 Declarations as affecting: trust or grift. 
 
 Cited in Washington v. Bank for Savings, 171 X. Y. 172, 89 Am. St. Rep. 800, 
 63 N. E. 831, holding declaration of decedent that she never had children ad- 
 missible as evidence to determine character of deposits made by her in names of 
 children; O'Xeil v. Greenwood, 106 Mich. 579, 64 X. W. 511, holding trust created 
 by deposit by owner of evidences of indebtedness with bills of sale in envelopes, 
 upon which names of donees indorsed; Millard v. Clark, 7 Misc. 369, 27 N. Y. 
 Supp. 631, holding declaration of trust not evidenced by investment in securities, 
 with statement attached showing they were to become gift only on death of 
 depositor; Re Gregg, 11 Misc. 156. 32 X. Y. Supp. 1103, holding that declara- 
 tions by owner that son owed nothing for rent, not amount to release in absence 
 of receipt. 
 
 L.R.A. Au. Vol. I. 69. 
 
6 L.R.A. 403] L. R. A. CASES AS AUTHORITIES. 1090 
 
 Intention us affecting- (rust. 
 
 Cited in Wadd v. Hazc-lton, 137 N. Y. 219, 21 L. R. A. 697, 33 Am. St. Rep. 707,. 
 33 N. E. 143, Reversing 62 Hun, 608, 17 N. Y. Supp. 410, holding intended 
 absolute gift failed for want of delivery, and could not be enforced as declaration 
 of trust in absence of intent; Hamer v. Sidway, 57 Hun, 237, 11 N. Y. Supp. 182. 
 holding letter acknowledging prior promise by uncle to give money to nephew, 
 not followed by deposit for him, not declaration of trust; Skeen v. Marriott, 22 
 Utah, 91, 61 Pac. 296, holding parol trust not disclosed by declarations of 
 intention to provide for first wife's children at future time ; Hamilton v. Hall, 
 111 Mich. 296, 69 N. W. 484, holding trust not created by declaration of intention 
 to create one; Trubey v. Pease, 240 111. 521, 88 N. E. 1005, 16 A. & E. Ann. Cas. 
 370, holding that a delivery of personal property to an attorney to be given by him 
 to specified persons and an expressed intention on part of giver to write donees 
 is no sufficient to create a trust; Hoffman v. Union Dime Savings Institution. 
 109 App. Div. 27, 95 N. Y. Supp. 1045, holding that while delivery of bank-book 
 might pass title to moneys on deposit for purpose of burial and masses, the book 
 must be delivered with intent to create such trust. 
 Liability of bank for paying deposit. 
 
 Cited in Kopf v. Dry Dock Sav. Inst. 32 Misc. 35, 65 N. Y. Supp. 364, holding 
 by-law of savings bank in which wife had made deposits not protect bank in 
 paying husband on her decease. 
 
 Cited in note (105 Am. St. Rep. 741, 754) on duties of savings bank toward 
 depositors. 
 
 6 L. R, A. 409, WHITEHEAD v. ST. LOUIS, I. M. & S. R. CO. 99 Mo. 263,- 11 
 
 S. W. 751. 
 Carrier and passenger, when relation exists. 
 
 Cited in Simmons v. Oregon R. Co. 41 Or. 158, 69 Pac. 440, and Everett v. 
 Oregon Short Line & U. N. R. Co. 9 Utah, 347, 34 Pac. 289, holding person going 
 in good faith on train not allowed to carry passengers, and permitted to remain, 
 passenger; Spence v. Chicago, R. I. & P. R. Co. 117 Iowa, 9, 90 X. W. 346, and 
 Berry v. Missouri P. R. Co. 124 Mo. 249, 25 S. W. 229, holding person riding on 
 construction train, against company's rules of which he had no knowledge, with 
 conductor's permission, passenger; Fitzgibbon v. Chicago & N. W. R. Co. 108 
 Iowa, 623, 79 N. W. 477 (dissenting opinion), majority holding one boarding 
 special excursion train, without express or implied invitation, not presumed 
 passenger; Birmingham, R. L. & P. Co. v. Adams, 146 Ala. 272, 119 Am. St. 
 Rep. 27, 40 So. 385, holding that one need not be a common carrier to be liable 
 for negligent injury to a passenger whom he accepts and undertakes to carry. 
 
 Cited in footnotes to Mendenhall v. Atchison, T. & S. F. R. Co. 61 L. R. A. 120, 
 which holds one riding on platform of baggage car at direction of brakeman, to 
 whom money paid, not a passenger; Chattanooga Rapid Transit Co. v. Venable, 
 51 L. R. A. 886, which holds nightwatchman at depot getting on train to an- 
 nounce readiness to'resume duty, a passenger ; Louisville & N. R. Co. v. Weaver, 
 50 L. R. A. 381, which holds station agent riding on train without paying fare, 
 several hours after work ended a passenger; Atchison, T. & S. F. R. Co. v. Head- 
 land, 20 L. R, A. 822, which holds presumption that person on train a passenger 
 not applicable to caboose attached to freight train. 
 
 Cited in note (61 Am. St. Rep. 85, 93, 95) on who are passengers and when 
 they become such. 
 
 Distinguished in Purple v. Union P. R, Co. 57 L. R. A. 705, 51 C. C. A. 570, 
 114 Fed. 129, holding one riding free on freight train by permission of con- 
 
1091 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 409 
 
 ductor, knowing passengers prohibited, not passenger; O'Donnell v. Kansas City, 
 St. L. & C. R. Co. 197 Mo. 121, 114 Am. St. Rep. 753, 95 S. W. 196, holding one 
 allowed to ride on a freight train by a brakeman not a passenger. 
 Duty to persona riding on trains. 
 
 Cited in Young v. Missouri P. R. Co. 93 Mo. App. 273, holding carrier's duty 
 toward free passenger, same as toward one paying; Buck v. People's Street R. & 
 Electric Light & P. Co. 108 Mo. 185, 18 S. W. 1090, holding passenger riding 
 free in street car with driver's consent entitled to same degree of care as other 
 passengers; Hays v. \\abash R. Co. 51 Mo. App. 443; Guffey v. Hannibal & St. 
 J. R. Co. 53 Mo. App. 4G8 ; Fullerton v. St. Louis, I. M. & S. R. Co. 84 Mo. App. 
 503; Erwin v. Kansas City, Ft. S. & M. R. Co. 94 Mo. App. 297, 08 S. W. 88; 
 Wait v. Omaha, K. C. & E. R. Co. 165 Mo. 621, 65 S. W. 1028, holding same 
 degree of care required toward passenger on freight as on passenger train, excep. 
 that passenger assumes risks necessarily incidental to running of such train; 
 McXeill v. Durham & C. R. Co. 135 X. C. 721, 47 S. E. 765, holding railroad not 
 liable to one riding gratuitously, except for wilful and wanton injury; Berry v. 
 Mi>>ouri P. R. Co. 124 Mo. 299, 25 S. W. 229 (dissenting opinion), majority 
 holding railroad liable for want of ordinary care to persons wrongfully riding on 
 train with knowledge of crew; Southern R. Co. v. Decker, 5 Ga. App. 35. 62 
 S. E. 678, holding that a railway company owes the duty of exercising ordin- 
 ary care and diligence to a person, gratuitously riding on train by consent of 
 conductor; Green v. Missouri, K. & T. R. Co. 121 Mo. App. 726, 97 S. W. 646, 
 holding the fact that a passenger is being carried on a freight train will not 
 relieve a railroad company for negligence; Bussell v. Quincy, O. & K. C. R. Co. 
 125 Mo. App. 447, 102 S. W. 613, holding that care to a passenger on a freight 
 train is same as on passenger train except as to dangers necessarily attending 
 that mode of conveyance; Chicago, R. I. & P. R. Co. v. Ralston, 77 Kan. 201, 
 93 Pac. 592, holding that carrier of passengers on a freight train is bound only 
 to use such diligence as the train is susceptible of considering its construction and 
 use; Richmond v. Missouri P. R. Co. 133 Mo. App. 471, 113 S. W. 708, on duty 
 carrier owes to one riding on a freight train: McXeill v. Durham & C. R. Co. 
 135 X. C. 721, 67 L.R.A. 245, 47 S. E. 765 (dissenting opinion), on duty of 
 carrier to one accepting free transportation; St. Louis & S. F. R. Co. v. Gosnell, 
 23 Okla. 591, 22 L.R.A. (X.S.) 893, 101 Pac. 1126, holding mere fact that a 
 freight train is stopped with a jar not sufficient to establish negligence. 
 
 Cited in notes (10 L.R.A. (X.S.) 384) on liability of railroad for injury by 
 servant to passenger in use of dangerous agency: (37 L.R.A. (N.S.) 423) on 
 liability of railroad to person wrongfully on train by collusion with employee. 
 
 Distinguished in Padgitt v. Moll, 159 Mo. 150, 52 L. R. A. 855, 81 Am. St. Rep. 
 347, 60 S. W. 121, holding newsboy jumping on and off street car entitled only 
 to ordinary- care; Crawleigh v. Galveston, H. & S. A. R. Co. 28 Tex. Civ. App. 265, 
 67 S. W. 140, holding railroad not liable for killing of person riding on freight 
 train unknown to train crew, though resulting from gross negligence. 
 Hiulit to prohibit passengers riding: on freight trains. 
 
 Cited in Burke v. Missouri P. R. Co. 51 Mo. App. 498, holding railroad not 
 bound to carry passengers on freight trains; Farber v. Missouri P. R. Co. 116 
 Mo. 92, 20 L. R. A. 353, 22 S. W. 631, holding that constitutional declaration that 
 railroads are public highways does not authorize persons to ride without com- 
 pany's consent; Gardner v. St. Louis & S. F. R. Co. 117 Mo. App. 145, 93 S. W. 
 917, holding that a railway company may prescribe rules for those riding ou 
 freight trains; St. Louis & S. F. R. Co. v. Cox, 26 Okla. 334. 109 Pac. 511, 
 holding railroad liable to passenger on freight train for injuries caused by jerk- 
 
6 L.RJL 409] L. R. A. CASES AS AUTHORITIES. 1092 
 
 ing train after it had stopped at platform, and after he was directed by con- 
 ductor to alight. 
 Liability of master for servant's torts. 
 
 Cited in notes (19 Am. St. Rep, 713) on master's liability for servant's 
 acts; (18 L.R.A. (N.S. ) 416) on liability for tort committed by servant with a 
 view of furtherance of master's business, but contrary to express instructions. 
 
 6 L. R. A. 412, NICHOLS, S. & CO. v. CRAXDALL, 77 Mich. 401, 43 N. W. 875. 
 Farol agreement adding to or varying written instrument. 
 
 Followed in Zimmerman Mfg. Co. v. Dolph, 104 Mich. 285, 62 N. W. 339, hold- 
 ing evidence of verbal warranties of windmill sold under written contract with 
 express warranties inadmissible. 
 
 Cited in M. Rumely & Co. v. Emmons, 85 Mich. 518, 48 N. W. 636, holding con- 
 temporaneous verbal warranty merged in written contract; H. W. Williams 
 Transp. Line v. Darius Cole Transp. Co. 129 Mich. 212, 56 L. R. A. 942, 88 N. W. 
 473, holding verbal representations as to speed of steamer merged in written 
 guaranty; McCray Refrigerator & Cold Storage Co. v. Woods, 99 Mich. 273, 41 
 Am. St. Rep. 599, 58 N. W. 320, holding verbal warranty cannot be imported 
 into written contract silent on subject; John Hutchison Mfg. Co. v. Pinch, 107 
 Mich. 14, 64 N. W. 729, holding parol evidence enlarging requirement stated in 
 written order inadmissible; Quinn v. Moss, 45 Neb. 617, 63 N. W. 931, and Cohen 
 v. Jackoboice, 101 Mich. 417, 59 N. W. 665, holding parol evidence inadmissible 
 to vary terms of written order containing all indicia of contract; McCrath v. 
 Myers, 126 Mich. 213, 85 X. W. 712, raising, without deciding, question, whether 
 agreement to forfeit purchase money mortgage on failure to procure good title 
 provable by parol; Detroit Shipbuilding Co. v. Comstock, 144 Mich. 519, 108 X. 
 W. 286, holding where a steam boiler is sold by a written contract in which no 
 warranty is made the only warranty that can be asserted is an implied one. 
 
 Cited in notes (21 Am. St. Rep. 122) on parol evidence as to writing; (19 
 L.R.A. (X.S. ) 1196) on right to show parol warranty in connection with contract 
 of sale of personalty. 
 
 Distinguished in Richey v. Daemicke, 86 Mich. 648, 49 N. W. 516, holding 
 guaranty attached to bill, not constituting agreement, does not render evidence 
 of verbal agreement inadmissible; Johnson v. Bratton, 112 Mich. 323, 70 N. W. 
 1021, holding parol evidence admissible to show mortgage for specific sum in- 
 tended to secure future advances by mortgagee's firm ; Gregory v. Lake Lindon, 
 130 Mich. 374, 90 N. W. 29, holding evidence that village had other supply ad- 
 jnissible to explain contract to purchase water; Grand Lodge, A. O. U. W. v. 
 Beath, 151 Mich. 666, 114 X. W. 662, holding where goods are by writing 
 ordered from a catalogue that warranties advertised in catalogue are to be 
 taken in connection. 
 
 6 L. R. A. 416, ALLIX v. COXXECTICUT RIVER LUMBER CO. 150 Mass. 560, 
 
 23 N. E. 581. 
 Jurisdiction. 
 
 Cited in Ellen wood v. Marietta Chair Co. 158 U. S. 107, 39 L. ed. 914, 15 Sup. 
 Ct. Rep. 771, holding trespass quare clausum with count for conversion of timber 
 cut maintainable only in state where land situated; Du Brouil v. Pennsylvania 
 Co. 130 Ind. 139, 29 X. E. 909, holding trespass for injuries to land in another 
 state by fire maintainable only at situs of land; Little v. Chicago. St. P. M. & 
 O. R. Co. 65 Minn. 55, 33 L. R. A. 425, footnote, p. 423, 60 Am. St. Rep. 421, 67 
 N. W. 846 (dissenting opinion), majority holding trespass maintainable though 
 land situated in another state; Huntington v. Attrill, 146 U. S. 670, 36 L. ed. 
 
1093 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 418 
 
 1128, 13 Sup. Ct. Rep. 224, holding statutory liability of officers for corporate 
 debts enforceable in any jurisdiction; Merriman v. Currier, 191 Mass. 141, 77 
 N. E. 708, holding where a lien proceeding is brought against the owners of a 
 vessel instead of against the vessel the defect is one of substance affecting juris- 
 diction of court; Pittsburgh, C. C. & St. L. R. Co. v. Jackson, 83 Ohio St. 18, 
 03 N. E. 260, 21 Ann. Cas. 1313, holding that action for trespass on lands in 
 another state cannot be maintained in this state. 
 
 Cited in footnotes to Schmaltz v. York Mfg. Co. 59 L. R, A. 907, which sus- 
 tains jurisdiction in equity by resident, of suit to enjoin removal of alleged 
 fixtures from land in another state on which plaintiff has mortgage. 
 
 Cited in note (26 L.R.A. (X.S.) 936) on jurisdiction of action for damages for 
 breach of contract, or for tort concerning realty in another state or country. 
 Plea in abatement or in bar. 
 
 Cited in Guild v. Bonnemort, 156 Mass. 523, 31 N. E. 645, holding plea of 
 wrong venue, merely in abatement, not to jurisdiction; Davis v. Carpenter, 172 
 Mass. 172, 51 N. E. 530, holding plea showing, not only present action not main- 
 tainable, but also no cause of action, plea in bar; Hey v. Prime, 197 Mass. 475 r 
 17 L.R.A. (N.S. ) 571, 84 X. E. 141, holding where declaration and opinion show 
 that a cause of action does not survive that successor might move to dismiss 
 though HO demurrer has been filed. 
 Review on appeal. 
 
 Cited in Puritan Trust Co. v. Coffey, 180 Mass. 512, 62 N. E. 970, holding de- 
 cision of superior court on plea of nonjoinder not subject to review on appeal ; 
 Brown v. Kellogg, 182 Mass. 299, 65 N. E. 378, Reversing judgment of superior 
 court dismissing for want of jurisdiction, on motion, for defects of form; Kimball 
 v. Sweet, 168 Mass. 106, 46 N. E. 409, holding that appeal lies from decision on 
 motion to dismiss for service of summons insufficient to give jurisdiction. 
 
 Distinguished in Burrows v. Morton, 170 Mass. 570, 49 N. E. 924, holding de- 
 cision of municipal court on motion to dismiss for defect in complaint, final. 
 
 6 L. R. A. 418, ILLINOIS C. R. CO. v. SLATER, 129 111. 91, 16 Am. St. Rep. 
 242, 21 X. E. 575. 
 
 Action for death of other son killed in same accident in Illinois C. R, Co. v. 
 Slater, 139 111. 190, 28 N. E. 830. 
 Speed of car or train n negligence. 
 
 Cited in Chicago City R. Co. v. Fennimore, 199 111. 15, 64 N. E. 985, holding 
 it duty of street cars not to approach crossings at dangerous speed, independent 
 of statute; Landon v. Chicago & G. T. R. Co. 92 111. App. 222, holding it duty of 
 railroad not to cross highways at dangerous speed, independent of statutory 
 regulation. 
 Negligence; failure to perform statutory duty. 
 
 Cited in Platte & D. Canal & Mill. Co. v. Dowell, 17 Colo. 386, 30 Pac. 68, 
 holding failure to perform statutory duty to cover power canal negligence per se. 
 
 Cited in notes (7 L.R.A. 316) on duty to signal approach to highway cross- 
 ing; (20 Am. St. Rep. 114) on duty of railroad company toward persons ap- 
 proaching track. 
 Evidence of failure to give signala at crossings. 
 
 Cited in Peirce v. Sparks, 05 111. App. 354, holding, where evidence conflicting' 
 as to giving signals at railroad crossing, verdict will not be disturbed; St. Louis, 
 A. & T. H. R. Co. v. Odum, 52 111. App. 523. holding testimony of witnesses with 
 opportunity to see and know, that bell was not rung at crossing so far as they 
 heard, not negative. 
 
6 L.R.A. 418] L. R. A. CASES AS AUTHORITIES. 1094 
 
 Cited in note (20 Am. St. Rep. 452) on duty of railroad company to warn 
 persons on track. 
 Duty of traveler at railroad crossing. 
 
 Cited in footnote to Passman v. West Jersey & S. R. Co. 61 L. R. A. 609, which 
 holds cutting of train on side track at highway crossing not invitation to cross 
 without using ordinary precaution. 
 Contributory negligence of children. 
 
 Cited in Wabash R. Co. v. Jones, 53 111. App. 133 ; Quincy &as & Electric Co. v. 
 Bauman, 104 111. App. 610; Baltimore & 0. S. W. R. Co. v. Then, 159 111. 538, 
 42 N. E. 97, Affirming 59 111. App. 565, holding child required to exercise ordi- 
 nary care according to age, capacity, and discretion; Atchison, T. & S. F. R. Co. v. 
 Roemer, 59 111. App. 97; Chicago v. McCrudden, 92 111. App. 259; Illinois Iron 
 & Metal Co. v. Weber, 196 111. 531, 63 1ST. E. 1008, holding intelligence, capac- 
 ity, and experience, as well as age of child, to be considered upon question of 
 exercise of care; Pittsburgh, Ft. W. & C. R. Co. v. Moore, 110 111. App. 307. 
 holding intelligence, as well as age and experience, should be considered in deter- 
 mining child's negligence; Lake Erie & W. R. Co. v. Klinkrath, 227 111. 442, 
 81 N. E. 377. holding that experience of a child is an important element in ques- 
 tion of contributory negligence; Economy Light & P. Co. v. Hiller, 113 111. App. 
 106, holding that intelligence of child is to be considered; Coleman v. Himmel- 
 berger-Harrison Land & Lumber Co. 105 Mo. App. 272, 79 S. W. 981, on the 
 degree of care due from a minor. 
 
 Cited in footnote to Gleason v. Smith, 55 L. R. A. 622, which denies liability 
 for injury by collision with team, to twelve year old boy using street as play- 
 ground. 
 
 Cited in notes (8 L. R. A. 843) on care to be exercised towards children to 
 avoid injuries; (6 L.R.A. 537) as to imputing contributory negligence to infant; 
 (49 Am. St. Rep. 409) on contributory negligence of children. 
 Damages for death of minor. 
 
 Cited in Illinois C. R. Co. v. Reardon, 157 111. 378, 41 N. E. 871, holding, in 
 action for minor's death, loss of right, to wages until majority not measure of 
 damages; Chicago & A. R. Co. v. Logue, 58 111. App. 151, holding verdict of 
 $1,500 for death of child twenty-one months old not excessive; United States 
 Electric Lighting Co. v. Sullivan, 22 App. D. C. 136, holding father may recover 
 probable amount of son's contributions both during and after minority, in action 
 for negligently causing son's death. 
 
 Cited in note (41 L. R. A. 809) on common-law right of action of parent for 
 loss of service of child killed. 
 Imputed negligence. 
 
 Cited in note (9 L. R. A. 159) on imputing driver's negligence to passenger. 
 Sufficiency of allegations of negligence. 
 
 Cited in note (59 L. R. A. 226) on sufficiency of general allegations of neg- 
 ligence. 
 
 6 L. R. A. 422, STATE ex rel. COPE v. FORAKER, 46 Ohio St. 677, 23 X. E. 491. 
 Amendments to constitutions. 
 
 Cited in Bear v. Heasley, 98 Mich. 308, 24 L. R. A. 621, 57 X. W. 270, holding 
 amendment to constitution of religious society, to be valid, must be adopted ac- 
 cording to provisions of constitution; State ex rel. McClurg v. Powell, 77 Miss. 
 576, 48 L. R. A. 658. 27 So. 927, holding greater strictness of procedure required 
 in adoption of constitutional amendments than in passage of acts of legislature: 
 3IcConaughy v. Secretary of State, 106 Minn. 401, 119 X. W. 408. holding 
 
L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 424 
 
 that the court has power to determine whether a constitutional amendment has 
 been legally submitted to and adopted by the people. 
 "What constitute** majority vote. 
 
 Cited in Re Denny, 156 Ind. 119, 51 L. R. A. 729, footnote, p. 722, 59 X. E. 
 359, holding that constitutional provision that amendments must be ratified by 
 "majority of electors" requires majority of all persons voting at election for any 
 purpose; State ex rel. McClurg v. Powell, 77 Miss. 576, 48 L. R. A. 660, 27 So. 
 927, holding constitutional provision that amendments must receive majority of 
 electors "voting" requires majority of all votes cast for any purpose; Stebbins v. 
 Superior Ct. Judge, 108 Mich. 699, 66 X. W. 594, holding majority of all persons 
 voting necessary under city charter authorizing issue of bonds when favored by 
 majority of votes cast; Bryan v. Lincoln, 50 Xeb. 628, 35 L. R. A. 755, 70 N. W. 
 252, holding that proposition must receive majority of all votes cast at election, 
 tinder statute permitting funding of city bonds when authorized by vote of 
 people; Belknap v. Louisville, 99 Ky. 483, 34 L. R, A. 260, 59 Am. St. Rep. 478, 
 36 S. W. 1118, holding assent of two thirds of all persons voting, necessary, under 
 constitutional provision requiring consent of two thirds of persons voting at 
 election to authorize special municipal indebtedness; Knight v. Shelton, 134 Fed. 
 428, holding that to have a majority of all electors voting at a certain election, 
 the question must receive a majority of all voters, though some neglect to vote on 
 the particular question; Eufaula v. Gibson, 22 Okla. 523, 98 Pac. 565, holding 
 that to change a county seat under constitution that it must appear that a ma- 
 jority all votes cast though some are unintelligible were cast in favor of removal. 
 
 Cited in notes (6 L.R.A. 311) on majority vote; (22 L.R.A.(X T .S.) 480) on 
 basis for computation of majority essential to adoption of proposition sub- 
 mitted at general election. 
 
 Distinguished in Davis v. Brown, 46 YV. Va. 720, 34 S. E. 839, holding that 
 statute for relocation of county seat, providing three fifths of all votes cast 
 favor it, requires three fifths of votes of those voting on proposition. 
 
 6 L. R. A. 424, DRYSDALE v. STATE, 83 Ga. 744, 20 Am. St. Rep. 340, 10 S. 
 
 E. 358. 
 Justifiable homicide. 
 
 Cited in footnote to State v. Yanz, 54 L. R. A. 780. which holds killing person 
 believed to be in act of adultery with killer's wife, manslaiighter only. 
 
 Cited in note (18 L.R.A. (X.S.) 689) on assault to prevent future seduction of 
 or adultery with wife. 
 
 Distinguished in Wilkerson v. State, 91 Ga. 732, 44 Am. St. Rep. 63, 17 S. E. 
 990, holding wife's seducer justified in defending himself against assault of hus- 
 band knowing of wife's infidelity and lying in wait; Gossett v. State, 123 Ga. 434, 
 51 S. E. 394, holding that the law will not justify deliberate revenge for a 
 past wrong to daughter however grievous; O'Shields v. State, 125 Ga. 314, 
 54 S. E. 120. holding same where there was improper relation with wife a short 
 time before the attack. 
 Homicide in self-defense. 
 
 Cited in footnotes to State v. Bartlett, 59 L. R. A. 756. which sustains right 
 to use deadly weapon to defend from public whipping by physical superior; Peo- 
 ple v. Hecker, 30 L. R. A. 403. which upholds right of one attempting to witli- 
 draw from affray commenced by him, to kill in self-defense; People v. Button, 28 
 L. R. A. 591, which holds right of self-defense not cut off merely because one was 
 original aggressor; State v. Evenson. 64 "L. R. A. 77. which holds one whose in-- 
 orderly conduct has caused attempt to compel him to leave town justified in 
 using necessary force to repel attack. 
 
6 L.R.A. 424] L. K. A. CASES AS AUTHORITIES. 109ft 
 
 Cited in note (45 L. R A. 687, 696) on self-defense set up by accused who 
 began conflict. 
 
 Distinguished in Brown v. State. 135 Ga. 658, 70 S. E. 329, holding that one 
 does not forfeit his right to defend himself against assault solely because he 
 may have been guilty of wrongful act in past. 
 Rigrht to protect home and property. 
 
 Cited in Miller v. State, 5 Ga. App. 466, 63 S. E. 571, holding that a dog. 
 which makes a practice of killing sheep might be killed by a sheep owner 
 though not killing sheep at time. 
 
 6 L. R. A. 426, PHINIZY v. MURRAY, 83 Ga. 747, 20 Am. St. Rep. 342, 10 
 
 S. E. 358. 
 To whom dividends on stock belong;. 
 
 Cited in Ho user v. Richardson, 90 Mo. App. 142, holding dividends go to 
 holder of stock at time they are declared payable. 
 
 Cited in note (45 L. R. A. 397) on right to dividends on transfer of stock. 
 
 Distinguished in Clark v. Campbell, 23 Utah, 575, 54 L. R. A. 512, 90 Am. St. 
 Rep. 716, 65 Pac. 496, holding dividends declared on mining stock, held in 
 escrow, before price paid, do not belong to purchaser. 
 
 6 L. R. A. 427, REGER v. O'NEAL, 33 W. Va. 159, 10 S. E. 375 . 
 Commissioner's report. 
 
 Cited in Taylor v. Dorr, 43 W. Va. 353, 27 S. E. 317; Wallis v. Neale, 43 
 W. Va. 539, 27 S. E. 227; Pendleton v. Bower, 49 W. Va. 149, 38 S. E. 487; 
 Carter v. Gill, 47 W. Va. 507, 35 S. E. 828; Cann v. Cann, 45 W. Va. 504, 31 
 S. E. 923; Fry v. Teamster, 36 W. Va. 466, 15 S. E. 253; Bennett v. Harper, 36 
 W. Va. 551, 15 S. E. 143; Schuttler v. Brandfass, 41 W. Va. 211, 23 S. E. 808; 
 Stewart v. Stewart, 40 W. Va. 84, 20 S. E. 862; Crothers v. Crothers, 40 W. Va. 
 174, 20 S. E. 927; Hartman v. Evans, 38 W. Va. 677, 18 S. E. 810; Burns v. 
 Hays, 44 W. Va. 506, 30 S. E. 101; Dewing v. Button, 48 W. Va. 579. 37 S. E. 
 670; Dearing v. Selvey, 50 W. Va. 18, 40 S. E. 478, sustaining commissioner's 
 report when approved by lower court; Poling v. Parsons, 38 W. Va. 81, 18 S. E. 
 379, sustaining decision of chancellor on conflicting evidence, though appellate 
 court might have come to different conclusion; Holt v. Taylor, 43 YV. Va. IfiO. 27 
 S. E. 320, holding that evidence did not sustain commissioner's findings ; Hillings 
 v. Hulings Lumber Co. 38 W. Va. 370, 18 S. E. 620, holding that findings of com- 
 missioner in chancery have great weight, but conclusions as to absence of fraud 
 not sustained; Haymond v. Camden, 48 W. Va. 465, 37 S. E. 642, holding finding 
 of commissioner should not be arbitrarily changed by lower court; State v. King, 
 64 W. Va. 567, 63 S. E. 468; Allen v. Maxwell, 56 W. Va. 236, 49 S. E. 242, 
 holding a finding of a commissioner of the court should be given great weight, 
 though not as conclusive as findings of a jury; Baker v. Jackson, 65 W. Va. 283, 
 64 S. E. 32, holding that findings should be sustained unless not warranted by 
 any reasonable view of the evidence. 
 "What is nsnrions transaction. 
 
 Cited in Rushing v. Worsham, 102 Ga. 830. 30 S. E. 541, holding usurious 
 transaction not disclosed by charging more than legal interest ovor cash price 
 on sale of goods on time; Bang v. Phelps & B. Windmill Co. 96 Tenn. 365. 34 
 S. W. 516, holding that provision in note for more than legal rate after ma- 
 turity renders it usurious; First Nat. Bank v. Mann, 94 Tenn. 24. 27 L. R. A. 568 r 
 27 S. W. 1015, holding note for difference between cash and credit price of goods 
 bought on credit, not usurious though put in form of interest and more than, 
 
1097 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 430 
 
 legal rate; Swayne v. Riddle, 37 W. Va. 295, 16 S. E. 512, holding agreement to 
 pay money in excess of legal rate of interest, but as part of purchase price of 
 land, not usurious; Crim v. Post, 41 W. Va. 403, 23 S. E. 613, holding subsequent 
 agreement, in effect renewing former usurious transaction, not purge it of usury; 
 Davidson v. Davis, 59 Fla. 473, 28 L.R.A. (N.S.) 104, 52 So. 139, 20 Ann. 
 Cas. 1130, to the point that difference between cash and credit price may be put 
 into form of interest on note for purchase price without violating usury law; 
 Dickson v. St. Paul, 105 Minn. 168, 117 N. W. 426, holding that sale of chose in 
 action at discount of more than ten per cent is not usurious; Waldron v. Pigeon 
 Coal Co. 61 W. Va. 285, 56 S. E. 492, holding that there can be no usury in case 
 of sale of property. 
 
 Cited in note (46 Am. St. Rep. 182) on what transactions are usurious. 
 Computing: interest. 
 
 Cited in Archer v. Baltimore Bldg. & L. Asso. 45 W. Va. 39, 30 S. E. 241, 
 holding that interest payable monthly cannot be compounded by commissioner 
 on failure of payment; Moore v. Johnson, 34 W. Va. 676, 12 S. E. 918, holding 
 makers of note entitled to credit for interest paid in excess of legal rate. 
 Application of usurious payments of interest. 
 
 Cited in Miller v. Prudential Bkg. & T. Co. 63 W. Va. 117, 59 S. E. 977; 
 Lorentz v. Pinnell, 55 W. Va. 121, 46 S. E. 796, holding that usurious payments 
 of interest should be applied as partial payments of debt. 
 
 6 L. R. A. 430, COOPER v. PEOPLE, 13 Colo. 337, 22 Pac. 790. 
 Review of judgment for contempt. 
 
 Cited in Wyatt v. People, 17 Colo. 256, 28 Pac. 961, holding judgment in con- 
 tempt proceedings not to preclude inquiry into jurisdiction on appeal; Shore v. 
 People, 26 Colo. 484, 58 Pac. 590, dismissing appeal from judgment imposing 
 penalty for contempt; Aichele v. Johnson, 30 Colo. 465, 71 Pac. 367, holding 
 writ of error appropriate remedy to review judgment in contempt proceeding; 
 State v. Markuson, 5 N. D. 150, 64 N. W. 934, holding proceedings adjudging 
 contempt for violating injunction reviewable on writ of error; Miskimmins v. 
 Shaver, 8 Wyo. 415, 49 L. R. A. 839, 58 Pac. 411, holding jurisdiction of court 
 in adjudging contempt reviewable on habeas corpus; Re Stidger, 37 Colo. 420, 
 86 Pac. 219, holding that the proper remedy for review of a judgment for con- 
 tempt is by writ of error: Martin v. District Ct. 37 Colo. 117, 119 Am. St. Rep. 
 262, 86 Pac. 82, holding that one district court has no power to review or super- 
 vise by habeas corpus the judgment of another such court ; People ex rel. Y\ ay- 
 man v. Zimmer, 252 111. 20, 96 N. E. 529, to the point that district court has no 
 authority to release prisoner under commitment for criminal contempt in court 
 which had jurisdiction. 
 
 Cited in note (22 Am. St. Rep. 418) on relief of party convicted of contempt. 
 Power to punish for contempt. 
 
 Cited in Wyatt v. People, 17 Colo. 260, 28 Pac. 961, holding contempt pro- 
 ceedings not affected by constitutional provisions; People ex rcl. Connor v. Staple- 
 ton, 18 Colo. 581, 23 L. R. A. 791, 33 Pac. 167, holding power to punish for con- 
 tempt inherent in superior courts, independent of statutory provisions; People 
 ex rel. Connor v. Stapleton, 18 Colo. 584. 23 L. R. A. 792. 33 Pac. 167, holding 
 that punishment for contempt extends only to fine and imprisonment; State v. 
 Sweetland, 3 S. D. 506, 54 X. \V. 415. holding power to punish for contempt 
 limited to articles calculated to intimidate, influence, or obstruct courts in ad- 
 ministration of justice; Re C'hadwick, 109 Mich. 600. 67 X. W. 1071, holding 
 power to punish for eonteinpt inherent in court; People ex rel. Connor v. Staple- 
 
6 L.R.A. 430] L. R. A. CASES AS AUTHORITIES. 1098 
 
 ton, 18 Colo. 574, 23 L. R. A. 789, 33 Pac. 167, sustaining court's power to punish 
 as contempt, newspaper's charge that boocllers have influence with court. 
 
 Cited in footnote to State v. Bee Pub. Co. 50 L. R. A. 195, which sustains pun- 
 ishment for contempt of newspaper publishing articles threatening judges with 
 public odium if they decide pending cause in certain way. 
 
 Cited in notes (117 Am. St. Rep. 951, 961) on courts, tribunals and persons 
 authorized to punish contempts; (15 Eng. Rul. Gas. 159) on power of courts 
 to punish for contempt. 
 "What is contempt. 
 
 Cited in Mullin v. People, 15 Colo. 440, 9 L. R. A. 568, 22 Am. St. Rep. 414, 
 24 Pac. 880, holding contempt not shown by statement in motion papers for 
 change of venue, that wife of judge made favorable remark concerning case; 
 Reeves v. People, 2 Colo. App. 199, 29 Pac. 1033, holding party to replevin action, 
 who, knowing judgment against him, removes goods from jurisdiction of courts, 
 properly punished for contempt; Bloom v. People, 23 Colo. 418, 48 Pac. 519, 
 holding publication relating to judge's decisions contemptuous; Field v. Thornell, 
 106 Iowa, 16, 68 Am. St. Rep. 281, 75 N. W. 685, holding editor in contempt for 
 article he handed to jurors reflecting on character and sanity of witnesses and 
 ability of jury; Re Hughes, 8 N. M. 242, 43 Pac. 692, holding publication com- 
 menting on pending disbarment proceedings punishable contempt, though pub- 
 lisher disclaimed intention to reflect on court; State v. Tugwell, 19 Wash. 255, 
 43 L. R. A. 723, 52 Pac. 1056, holding newspaper publication, reflecting on in- 
 tegrity of court pending appeal, punishable contempt; State ex rel. Crow v. 
 Shepherd, 177 Mo. 233, 99 Am. St. Rep. 624, 76 S. W. 79, holding a false publica- 
 tion scandalizing a court is a contempt; People ex rel. Atty. Gen. v. News- 
 Times Pub. Co. 35 Colo. 365, 84 Pac. 912, holding that the supreme 
 xmrt could punish for contempt for a newspaper publication charging supreme 
 court with corruption in its rulings; Re Thatcher, 80 Ohio St. 654, 89 N. E. 39, 
 disbarring an attorney who published libelous matter concerning a member of 
 supreme court; Hughes v. Arizona, 10 Ariz. 128, 6 L.R.A. (X.S.) 575, 85 Pac. 
 1058, holding a publication during the trial of a cause tending to prejudice 
 members of a jury to be contempt. 
 
 Cited in footnotes to Telegram Newspaper Co. v. Com. 44 L.R.A. 159, which 
 holds corporation guilty of contempt in publishing article calculated to prejudice 
 jury and prevent fair trial; Ex parte Green, 66 L.R.A. 727, which holds criticism 
 of manner in which trials are conducted without referring to particular case 
 in court not punishable as contempt. 
 
 Cited in notes (50 Am. St. Rep. 573, 580) on contempt of court by libelous 
 newspaper publications; (68 L.R.A. 256, 259) on statement with respect to ended 
 cause as contempt; (2 Brit. Rul. Cas. 486, 488) on publication of matter deroga- 
 tory to litigants as attempt to pervert or obstruct justice, or as contempt. 
 
 Distinguished in State ex rel. Atty. Gen. v. Circuit Court,. 97 Wis. 9, 38 L. 
 R. A. 558, 65 Am. St. Rep. 90, 72 N. W. 193, holding newspaper comment on 
 cases decided before publication not criminal contempt. 
 Change of venne. 
 
 Cited in Bloom v. People, 23 Colo. 418, 48 Pac. 519, denying change of venue 
 as of right in contempt proceedings. 
 
 6 L. R. A. 444, PEOPLE ex rel. BARTON v. LONDONER, 13 Colo. 303, 22 Pac. 
 
 764. 
 
 Second appeal in 15 Colo. 568, 26 Pac. 135. 
 Election contests. 
 
 Cited in Pratt v. Breckinridge, 112 Ky. 43, 65 S. W. 136 (dissenting opin- 
 
10!y L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 444 
 
 ion), majority holding act creating board to try election contests unconsti- 
 tutional; Cripple Creek v. Hanley, 19 Colo. App. 391, 75 Pac. 600, sustaining 
 a statute conferring power on city council to be judges of the election and quali- 
 fications of its members. 
 
 Cited in notes (12 L. R. A. 708) on remedy by proceedings in nature of quo 
 warranto in election contests; (33 L. R. A. 387) on power of courts to re- 
 quire ballot boxes to be produced or opened in proceedings other than election 
 contests; (26 L.R.A. (X.S. ) 208) on provision for testing election of officer before 
 municipal body as exclusive remedy. 
 Quo \viirraiito UN affected by M:I t ti !<.. 
 
 Cited in Snowball v. People, 147 111. 266, 35 N. E. 538, holding statutory right 
 to contest elections as private citizens not impair quo warranto; Parks v. State, 
 100 Ala. 648, 13 So. 756, holding validity of election not contestable in quo 
 warranto proceeding; State ex rel. Harris v. Elliott, 117 Ala. 154, 23 So. 124, 
 holding validity of election of mayor under particular city charter contestable 
 by quo warranto proceedings; Haverstock v. Aylesworth, 113 Iowa, 381, 85 N. 
 \Y. 1)34. holding quo warranto and statutory contest cumulative remedies: 
 People ex rel. Union P. R. Co. v. Colorado Eastern R. Co. 8 Colo. App. 302, 46 
 Pac. 219, holding no information in nature of quo warranto maintainable except 
 in original proceedings in supreme court; State Railroad Commission v. People, 
 44 Colo. 349, 22 L.R.A. (X.S.) 815, 98 Pac. 7, holding a statutory prescribed 
 metliod for testing right to office to be exclusive method. 
 Interest necessary to maintain quo \varranto. 
 
 Cited in Davis v. Dawson, 90 Ga. 825, 17 S. E. 110, holding that defeated can- 
 didate may proceed by quo warranto to have office declared vacant; State 
 ex rel. White v. Barker, 116 Iowa, 100, 57 L. R. A. 248, 93 Am. St. Rep. 222. 
 89 N. W. 204, upholding quo warranto on relation of taxpayer to test validity 
 of appointnuenet of trustee of waterworks system; State ex rel. Fullerton v. 
 Des Moines City R. Co. 135 Iowa, 712, 109 X. W. 867, holding that court 
 will entertain a quo warranto proceeding to test right of a corporation, to exer- 
 cise a franchise privilege though relator has no private interest; People ex rel. 
 Stidger v. Horan, 34 Colo. 313, 86 Pac. 252, on trial of right of incumbent 
 to office; Dunton v. People, 36 Colo. 131, 87 Pac. 540, holding one not legally 
 elected to office estopped to try title to office; Albright v. Territory, 13 N. M. 77, 
 79 Pac. 719, 11 A. & E. Ann. Cas. 1165, holding where a relator having succeeded 
 in ousting an incumbent is not voluntarily admitted he must resort to mandamus 
 to secure possession of office. 
 
 Cited in notes (125 Am. St. Rep. 640; 22 L.R.A. (N.S.) 813) on quo warranto 
 for vindication of private rights. 
 Rights under municipal charters. 
 
 Cited in Huer v. Central, 14 Colo. 72, 23 Pac. 323, upholding special charter 
 of city incorporated before adoption of Constitution; Denver v. Barren, 6 Colo. 
 App. 76, 39 Pac. 989, upholding amendment to charter requiring notice to fix 
 city's liability for tort; Heinssen v. State, 14 Colo. 250, 23 Pac. 995 (concurring 
 opinion), as to authority of city under special charter to interfere with uni- 
 form jurisdiction of district courts in enforcement of general laws. 
 Special legislation. 
 
 Cited in McGarvey v. Swan, 17 Wyo. 138, 96 Pac. 697, holding that a special 
 charter of a municipal corporation might be amended by a general law. 
 
 Cited in footnotes to Hamilton County v. Rasche Bros. 19 L. R. A. 584, which 
 holds statute as to taxes, not applying to all parts of state, unconstitutional ; 
 
6 L.R.A. 444] L. R. A. CASES 'AS AUTHORITIES. 1100 
 
 Milwaukee Couny v. Isenring, 53 L. R. A. 635, which holds act regulating sheriff's 
 fees for particular county, local. 
 
 6 L. R. A. 449, MOELLERING v. EVANS, 121 Ind. 195, 22 N. E. 989. 
 Use of one's > 11 property so as to avoid injury to another's. 
 
 Cited in footnote to Cumberland Teleph. & Teleg. Co. v. United Electric R. 
 Co. 12 L. R. A. 544, which denies to telephone company injunction against 
 operation of electric railway. 
 
 Cited in notes (6 L. R. A. 573) on right to use of land, surface water, damnum 
 absque injuria; (8 L. R. A. 809) on right to use one's own property. 
 N:it MI-MI right to lateral support. 
 
 Cited in Ulrick v. Dakota Loan & T. Co. 2 S. D. 291, 49 N. W. 1054, uphold- 
 ing right to such support from adjoining land as incident to land in natural 
 condition; Bohrer v. Dienhart Harness Co. 19 Ind. App. 499, 49 N. E. 296, hold- 
 ing that lot owner making excavations must use ordinary care to protect adjoin- 
 ing building; Payne v. Moore, 31 Ind. App. 363, 66 N. E. 483, holding com- 
 plaint for injury to wall by excavation on adjoining lot, not alleging negligence, 
 prescriptive right, or that it was a party wall, demurrable; Schmoe v. Cotton, 
 167 Ind. 368, 79 N. E. 184, holding liability for taking away lateral support 
 of land in its natural condition not based on negligence; Walker v. Strosnider, 
 67 W. Va. 46, 67 S. E. 1087, 21 Ann. Gas. 1; Weiss v. Kohlhagen, 58 Or. ]50, 
 L.R.A. (N.S. ) , 113 Pac. 46, holding that adjoining owner is not liable for 
 removal of lateral support where injury is result of weight of building, but 
 will be liable if injury is caused by negligent action, even though owner is noti- 
 fied of intention to excavate. 
 
 Cited in notes (33 Am. St. Rep. 468, 475) on right to lateral support; (68 
 L.R.A. 674, 683, 690, 704, 706) on liability for removal of lateral or subjacent 
 support of land in its natural condition; (10 Eng. Rul. Cas. 161) on right to sup- 
 port of land in its natural state and to support of buildings thereon. 
 Measure of damages. 
 
 Cited in Joliet v. Schroeder, 92 111. App. 73, holding measure of damages 
 to be difference in value of property before and after street improvement; Par- 
 rott v. Chicago G. W. R. Co. 127 Iowa, 423, 103 N. W. 352, holding that measure 
 of damages for removal of rail to be difference in value of land before and after 
 injury and not mere value of rail takes. 
 
 Cited in note (17 L. R. A. 428) on cost of restoration as measure of dam- 
 ages for injury to real property. 
 
 L. R. A. 451, ADERHOLDT v. HENRY, 7 Ala. 415, 6 So. 625. 
 Mortgage; order of sale of parcels subsequently sold. 
 
 Cited in Farmers Sav. & Bldg. & L. Asso. v. Kent, 117 Ala. 630, 23 N. E. 757, 
 liolding parcels sold without reference to mortgage liable to sale thereunder 
 in inverse order of alienation; Howser v. Cruikshank, 122 Ala. 264, 82 Am. St. 
 Rep. 76, 25 So. 206, holding second mortgagee of remainder, with notice, sub- 
 ject to right of grantee of portion to have land sold in inverse order of alien- 
 ation; Northwestern Land Asso. v. Harris, 114 Ala. 474, 21 So. 999, holding 
 portion of land purchased with knowledge of covenant in mortgage to apply 
 purchase money on debt, primarily liable to extent of unpaid price. 
 
 fi L. R. A. 454, ELLIS v. HILTON, 78 Mich. 150, 18 Am. St. Rep. 438, 43 N. W. 
 
 1048. 
 Second appeal in 92 Mich. 439, 52 N. W. 754. 
 
1101 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 457 
 
 : IM ni-- incurred in saving property as damag-en. 
 
 Cited in Coyle v. Baum, 3 Okla. 717, 41 Pac. 389, holding cost of medical 
 treatment for injured horse recoverable; Hughes v. Austin, 12 Tex. Civ. App. 
 187, 33 S. W. 607, holding expenses incurred in good faith in preserving proper- 
 ty from wrongful destruction recoverable; Wilson v. Seattle, R. & S. R. Co. 55 
 Wash. 657, 104 Pac. 1114, holding that reasonable expenses incurred in attempt- 
 ing to effect a cure of animal injured, proper element of damages; Atwood v. 
 Boston Forwarding & Transfer Co. 185 Mass. 559, 71 N. E. 72; Sullivan v. An- 
 derson, 81 S. C. 481, 62 S. E. 862; Southern Hardware & Supply Co. v. Standard 
 Equipment Co. 158 Ala. 602, 48 So. 357, holding in an action for damages for 
 death of a horse because of negligence, that expenses incurred in attempting 
 a cure might be recovered; Ulit v. Biggs, 53 Tex. Civ. App. 531, 116 S. W. 126, 
 holding that expenses incurred in good faith jn caring for and treating animal 
 injured by defendant's negligence may be recovered in addition to value of ani- 
 mal dying from result of injury. 
 
 6 L. R. A. 455, CHAFFEE v. TELEPHONE & TELEG. CONSTR. CO. 77 Mich. 
 625, 18 Am. St. Rep. 424, 43 S. W. 1064. 
 
 6 L. R. A. 457, RICHARDSON v. BUHL, 77 Mich. 632, 43 N. W. 1102. 
 Illegality of contracts; subject of judicial notice. 
 
 Cited in Burger v. Koelsch, 77 Hun, 48, 28 N. Y. Supp. 460, holding that ac- 
 tion to enforce illegal contract will be dismissed, although issue not raised by 
 pleadings; Reed v. Johnson, 27 Wash. 56, 57 L. R. A. 409, 67 Pac. 381, holding 
 specific performance of contract to convey land for securing location of rail- 
 road depot, proceeds of which to be shared with officers of railroad, will not 
 be decreed, although illegality not pleaded: Haddock v. Salt Lake City, 23 Utah, 
 528. 65 Pac. 491, denying enforcement of contract with constable providing pay- 
 ment for services different from that prescribed by statute; Baltimore High 
 Grade Brick Co. v. Amos, 95 Md. 602, 52 Atl. 582, holding that courts will 
 set aside mortgage void under statute, irrespective of plaintiff's right to im- 
 peach it; Escambia Land & Mortg. Co. v. Ferry Pass Inspectors' & Shippers' 
 Asso. 59 Fla. 246, 138 Am. St. Rep. 121, 52 So. 715, holding that courts will take 
 judicial notice on their own motion of illegal contracts and will leave parties 
 where they have placed themselves; O'Brien v. Shea, 208 Mass. 536, 95 X. E. 99, 
 Ann Cas. 191 2 A, holding that courts are not bound to take judicial notice of 
 illegal contracts where question is not raised by parties; Heffron v. Daly. 133 
 Mich. 615, 95 X. W. 714, holding illegality of insurance policy need not be pleaded 
 if noticeable suo sponte; Swing v. Cameron, 145 Mich. 182, 9 L.R.A. (X.S. ) 423, 
 108 X. W. 506, 9 A. & E. Ann. Cas. 332, holding that illegality of an insurance 
 policy might be taken advantage of under general denial. 
 Vnln \vfnl combinations and contracts. 
 
 Approved in Bigelow v. Calumet & H. Min. Co. 167 Fed. 709, on intent as 
 an element in illegal combinations and trusts. 
 
 Cited in United States v. E. C. Knight Co. 156 U. S. 30, 39 L. ed. 335, 15 Sup. 
 Ct. Rep. 249, holding anti-trust law 1890 not applicable to monopoly in manu- 
 facture of necessity of life; State ex rel. Snyder v. Portland Xatural Gas & Oil 
 Co. 153 Ind. 489, 53 L. R. A. 415, 74 Am. St. Rep. 319, 53 X. E. 1089, holding 
 combinations between corporations, tending to restrict competition, against 
 public policy; Lovejoy v. Michels, 88 Mich. 28, 13 L. R. A. 775, 49 X. W. 901, 
 denying power of monopolies to control prices; Lovejoy v. Michels, 88 Mich. 23, 
 13 L. R. A. 775, 49 X. W. 901, holding combination for purpose of controlling 
 prices unlawful, although prices fixed are reasonable; Stockton v. Central R> 
 
6 L.R.A. 457] L. R. A. CASES AS AUTHORITIES. 1102 
 
 Co. 50 N. J. Eq. 85, 17 L. R. A. 110, footnote p. 97, 24 Atl. 964, and Trenton Pot- 
 teries Co. v. Oliphant, 56 N. J. Eq. 736, 39 Atl. 923, holding combination to 
 create monopoly against public policy, although it has in fact reduced prices; 
 United States v. Addyston Pipe & Steel Co. 46 L. R. A. 136, 29 C. C. A. 160, 54 
 U. S. App. 723, 85 Fed. 291, and Wittenberg v. Mollyneaux, 60 Neb. 585, 83 N. 
 Y. 842, holding that when purchase of property is means to creation of mo- 
 nopoly, it is unlawful; Distilling & Cattle Feeding Co. v. People, 156 111. 488, 
 
 47 Am. St. Rep. 217, 41 N. E. 188, holding corporation organized to control 
 manufacture and sale of distilling products illegal; State v. Nebraska Distilling 
 Co. 29 Neb. 715, 46 N. W. 155, holding combination of distilleries to destroy 
 competition by dismantling distilleries, and thus to control prices, unlawful; 
 Gibbs v. McNeeley, 60 L. R. A. 155, 55 C. C. A. 73, 118 Fed. 123, holding associa- 
 tion of manufacturers and dealers to control production and price of shingles 
 unlawful combination; Northern Securities Co. v. United States, 193 U. S. 341, 
 
 48 L. ed. 702, 24 Sup. Ct. Rep. 436, holding corporation formed for purpose of 
 holding stock of competing railroads, acquired in exchange for its own, an un- 
 lawful combination ; John D. Park & Sons Co. v. National Wholesale Druggist's 
 Asso. 175 N. Y. 36, 62 L. R. A. 647, footnote p. 632, 96 Am. St. Rep. 578, 
 67 N. E. 136 (dissenting opinion), majority holding plan adopted by drug- 
 gists' association and manufacturers of proprietary medicines, providing for 
 rebate to those maintaining selling price, legal; Leonard v. Abner Drury Brewing 
 Co. 25 App. D. C. 174, holding a combination of brewers attempting to force 
 all competitors to join and to coerce purchasers was illegal at common law or 
 tinder section 3 of the Federal Anti Trust Act; Chicago, W. & V. Coal Co. v. 
 People, 114 111. App. 106, holding it immaterial whether prices fixed were un- 
 fair or unreasonable; Hunt v. Riverside Co-op. Club, 140 Mich. 547, 132 Am. 
 St. Rep. 420, 104 N. W. 40, holding it not material that the combination may 
 have lowered prices; International Harvester Co. v. Eaton Circuit Judge (In- 
 ternational Harvester Co. v. Smith), 163 Mich. 59, 30 L.R.A.(N.S.) 586, 127 N. 
 W. 695, Ann. Cas. 1912A, 1022, holding that defense that foreign corporation is 
 illegal combination under statute is not available in action for money had and re- 
 ceived; State v. Duluth Bd. of Trade, 107 Minn. 530, 23 L.R.A.(N.S.) 1273, 121 
 N. W. 395, holding a conspiracy to enhance the price of commodities which con- 
 stitute the necessities of life is illegal at common law; State ex rel. Hadley v. 
 Standard Oil Co. 218 Mo. 350, 116 S. W. 902, on tendency and not the actual re- 
 sult as the test of illegality; United States v. Standard Oil Co. 173 Fed. 185, 
 holding the exchanging stocks by all competing corporations for stock in a single 
 corporation to be illegal; Bigelow v. Calumet & H. Min. Co. 155 Fed. 874, hold- 
 ing the control of stock in competing mining companies by one corporation to be 
 unlawful; United States v. American Tobacco Co. 164 Fed. 721, holding that a 
 combination so as to practically control prices is a monopoly; De Witt Wire- 
 Cloth Co. v. New Jersey Wire-Cloth Co. 16 Daly, 531, 14 N. Y. Supp. 277, holding 
 an association for purpose of effecting price of a commodity to be unlawful : 
 Anderson v. Shawnee Compress Co. 17 Okla. 243. 15 L.R.A. (N.S.) 854, 87 Pac. 
 315, holding an agreement not to compete within 50 miles of any plant of lessee 
 as part of a lease of a compress plant to a compress corporation to be invalid; 
 Territory v. Long Bell Lumber Co. 22 Okla. 906, 99 Pac. 911, holding that a 
 monopoly is a public nuisance. 
 
 Cited in footnotes to Texas Standard Cotton Oil Co. v. Adoue, 15 L. R. A. 598, 
 which holds combination to fix prices of cotton seed and seed cotton void; State 
 v. Phipps, 18 L. R. A. 658, which holds combination by foreign companies to 
 increase rates of insurance unlawful; Clark v. Needham, 51 L. R. A. 785, which 
 holds void lease of manufacturing machinery with agreement against lessor en- 
 
1103 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 457 
 
 gaging in business for five years; Chaplin v. Brown, 12 L. R. A. 428, which 
 holds grocer's agreement not to buy butter from makers for two years if firm 
 opens butter store void; More v. Bennett, 15 L. R. A. 361, which holds asso- 
 ciation of stenographers to control prices for work illegal combination; State 
 ex rel. Watson v. Standard Oil Co. 15 L. R. A. 145, which holds agreement 
 for transfer of corporate stock to trustees to vote and receive dividends void: 
 Wassermann v. Sloss, 38 L. R. A. 176, which holds that illegality of transfer of 
 stock to president for corrupting government officials does not prevent recovery 
 where taken by president for his own use instead; Cummings v. Union Blue 
 Stone Co. 52 L. R. A. 262, which holds void, agreement by persons controlling 
 90 per cent of sale of blue stone, to sell through common agent and maintain 
 agreed prices; Gloucester Isinglass & Glue Co. v. Russia Cement Co. 12 L. R. A. 
 563, which holds agreement to prevent competition between corporations in 
 manufacture of glue under patent valid; Chateau v. Singla, 33 L. R. A. 750, 
 which denies relief to either party for settlement of partnership to carry on 
 unlawful business; John D. Park & Sons Co. v. National Wholesale Druggists' 
 Asso. 62 L.R.A. 632, which holds valid plan for sale of proprietary medicines 
 by manufacturers at fixed prices with rebate only to concerns which may be 
 relied on to maintain selling price; Slaughter v. Thacker Coal & Coke Co. 
 65 L.R.A. 342, which holds void contract by different coal mining companies 
 giving exclusive right to sell entire output at uniform prices to corporation organ- 
 ized as their regular sales agent. 
 
 Cited in notes (8 L. R. A. 500, 501) on combinations and monopolies in trade; 
 (12 L. R. A. 754) on restraining monopolies as public nuisances; (13 L. R. A. 
 771) on nature of monopolies; (52 L. R. A. 381) on right of corporations to con- 
 solidate; (74 Am. St. Rep. 243, 268, 269, 271) on combinations constituting un- 
 lawful trusts; (41 L. ed. U. S. 1010), on validity of contracts in restraint of 
 trade. 
 
 ^Distinguished in Queen Ins. Co. v. State, 86 Tex. 266, 22 L. R. A. 492, 24 S. 
 W. 397, holding combination between insurance companies to fix rates, not v.ith- 
 in statute imposing penalties on persons or corporations composing "trust;" 
 O. & W. Thum Co. v. Tloczynski, 114 Mich. 160, 38 L. R. A. 205, 68 Am. St. 
 Rep. 469, 72 N. W. 140, upholding agreement of employee not to reveal secret 
 process and methods of employer in manufacturing. 
 Extrinsic marks or evidences of illegality. 
 
 Cited in Detroit Salt Co. v. National Salt Co. 134 Mich. 117. 96 N. W. 1, 
 holding court may consider fact that contract is consistent with none but an 
 illegal purpose ; Erpelding v. Mc-Kearman, 143 Mich. 414, 107 N. W. 107, hold- 
 ing indicia of illegal combination by a sale of stock to a competitor should have 
 gone to jury on question whether stock sale was legal. 
 Agreements in aid of creation of monopoly. 
 
 Cited in Trenton Potteries Co. v. Oliphant. 5(5 N. J. Eq. 736, 39 Atl. 923, 
 holding stipulation in sale of business of manufacturing firm not to engage in 
 business anywhere in I nited States for fifty years void; Gamewell Fire Alarm 
 Teleg. Co. v. Crane, 100 Mass. r>7, 22 L. R. A. 677, 39 Am. St. Rep. 464, 35 N. 
 E. 98, holding stipulation of vendor, in sale of business of manufacturing fire 
 .alarm and police telegraph machines, not to engage in same business for ten 
 years, void: National Harrow Co. v. Quick, 67 Fed. 131, holding corporation 
 organized to control harrow patents and prices of harrows sold by licensed manu- 
 facturers, illegal; Harding v. American Glucose Co. 182 111. 619, 64 L. R. A. 
 765, 74 Am. St. Rep. 215. 55 X. K. 577. holding agreement between corporations 
 to transfer plants to new corporation to conduct business for benefit of parties 
 
6 L.R.A. 457] L. R. A. CASES AS AUTHORITIES. 1104 
 
 to agreement, for purpose of suppressing competition, void; State ex rel. Watson 
 v. Standard Oil Co. 49 Ohio St. 186. 15 L. R. A. 159, 34 Am. St. Rep. 553, 30 N. 
 E. 279, holding agreement whereby stockholders transfer shares to trustees em- 
 powered to conduct business of several corporations for benefit of parties con- 
 cerned, unlawful; Merchants' Ice & Cold Storage Co v. Hohrman, 138 Ky. 551, 
 30 L.R.A. (N.S.) 981, 137 Am. St. Rep. 390, 128 S. W. 599, holding void, con- 
 tracts to consolidate ice plants in city, to control market, though no effort was 
 made to fix price in local market. 
 Unlawful dividends. 
 
 Cited in American Steel & Wire Co. v. Eddy, 130 Mich. 268, 89 X. W. 952, hold- 
 ing preferred stockholder liable to corporation creditor to extent of dividends 
 impairing capital stock. 
 
 6 L. R. A. 469, PALMER v. POOR, 121 Ind. 135, 22 N. E. 984. 
 Alteration of written instrument. 
 
 Cited in Richardson v. Fellner, 9 Okla. 521, 60 Pac. 270, holding that material 
 alteration vitiates written instrument though no fraud results; Bucklen v. 
 Johnson, 19 Ind. App. 417, 49 N. E. 612, holding subscription note invalidated 
 by alteration of contract precedent to delivery, without knowledge of maker, 
 Moore v. Hinshaw, 23 Ind. App. 270, 77 Am. St. Rep. 434, 55 N. E. 236, holding 
 surety released by insertion of rate of interest in blank by principal and payee; 
 Casto v. Evinger, 17 Ind. App. 300, 46 N. E. 648, holding alteration after exe- 
 cution presumed to be made by party claiming under instrument; Pope v. 
 Branch County Sav. Bank, 23 Ind. App. 215, 54 N. E. 835, holding insertion of 
 name of bank as place of payment, without authority, material alteration; 
 Young v. Baker, 29 Ind. App. 135, 64 N. E. 54, holding unauthorized insertion 
 of name of bank in blank provided for place of payment material alteration 
 avoiding note in hands of bona fide holder; Brannum Lumber Co. v. Pickard, 
 33 Ind. App. 488, 71 N. E. 676, holding an alteration of a note postponing the 
 date of payment discharged surety; Fudge v. Marquell, 164 Ind. 453, 72 X. E. 
 565, holding evidence to show subsequent unauthorized alterations of a note, 
 admissible under plea non est factum. 
 
 Cited in footnotes to Gleason v. Hamilton, 21 L. R. A. 210, which holds mort- 
 gage not invalidated by alteration by attorney drawing same without mortgagee's 
 knowledge; Simmons v. Atkinson & L. Co. 23 L. R. A. 599, which holds insertion 
 of words "or bearer" and place of payment a material alteration; Brown v. 
 Johnson Bros. 51 L. R. A. 403, which holds maker released by payee's addition 
 of name of other person as comaker; Rochford v. McGee, 61 L. R. A. 335. which 
 holds removal of note written below perforated line on application for insurance 
 material alteration rendering it void; Foxworthy v. Colby, 62 L. R. A. 393, 
 which holds insertion of "gold" before "dollars" material alteration. 
 
 Cited in notes (7 L. R. A. 743) on effect of alteration of written instruments; 
 (13 L. R. A. 314) on duty of party producing instrument to account for altera- 
 tions; (86 Am. St. Rep. 97) on unauthorized alteration of written instruments. 
 Bona fide holder. 
 
 Cited in Miller v. Stephenson, 27 Ind. App. 287, 61 N. E. 22 (dissenting opin- 
 ion), majority holding attorneys taking client's money order as fees, knowing that 
 client had defrauded plaintiff, not bona fide holder; Pope v. Branch County Sav. 
 Bank, 23 Ind. App. 213, 54 X. E. 835, holding, after alteration of note, burden 
 upon plaintiff to show that he is bona fide holder. 
 
 Cited in notes (10 L. R. A. 678) on protection of bona fide holder of note 
 fraudulently obtained; (36 L. R. A. 441) on fraud in obtaining execution of note 
 
1105 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 472 
 
 as defense against bona fide holder; (125 Am. St. Rep. 811, 812) on invalidity of 
 stolen negotiable instrument in hands of bona fide holder. 
 Incomplete agreement. 
 
 Cited in McCaslin v. Advance Mfg. Co. 155 Ind. 305, 58 N. E. 67, holding mort- 
 gagor not bound to insure where amount left blank in mortgage stipulation re- 
 quiring insurance. 
 Confession and denial in answer. 
 
 Cited in People's Mut. Ben. Soc. v. Templeton, 16 Ind. App. 129, 44 N. E. 809 r 
 holding that plaintiff cannot escape proof, although answer contains confession 
 and denial; Merchants' Nat. Bank v. McClellan, 40 Ind. App. 6, 80 N. E. 854., 
 holding that admissions made in one paragraph to an answer can be considered; 
 only in reference to such paragraph. 
 Delivery of negotiable paper. 
 
 Cited in Digan v. Mandel, 167 Ind. 593, 119 Am. St. Rep. 515, 79 N. E. 899V 
 holding an unmistakable intention of maker to relinquish all power of a note and 
 to give it effect in the hands of the payee to constitute delivery: Godman v. 
 Henby, 37 Ind. App. 3, 76 N. E. 423, holding where the execution of a note is in* 
 issue that delivery must be proven; Indiana Trust Co. v. Byram, 46 Ind. App.. 
 16, 72 N. E. 670 (dissenting opinion), on what constitutes a delivery of a note. 
 
 6 L. R. A. 472, Re TYSON, 13 Colo. 482, 22 Pac. 810. 
 
 Second writ of habeas corpus denied in 21 Colo. 79, 39 Pac. 1093. 
 Ex post facto laws. 
 
 Cited in McGinn v. State, 46 Neb. 443, 30 L. R. A. 455, 50 Am. St. Rep. 617, 
 65 N. W. 46, holding imprisonment until execution not part of punishment so 
 as to prevent setting aside irregular sentence and sentencing as prescribed by law -. 
 State v. Rovley, 12 N. D. 153, 95 N. W. 513, holding confinement pending execution 
 of a prisoner to be lawful. 
 
 Cited in footnotes to State v. Kyle, 56 L. R. A. 115, which sustains statute 
 authorizing prosecution by information of crimes already committed; People 
 ex rel. Chandler v. McDonald, 29 L. R. A. 834, which holds statute not ex post 
 facto for abrogating provision for change of magistrate or of venue for prejxidice; 
 People v. Hayes, 23 L. R. A. 830. which holds change in statute authorizing 
 slighter punishment not ex post facto law: French v. Deane, 24 L. R. A. 388, 
 which holds void act giving right to punitive damages as to existing cause of 
 action. 
 
 Cited in notes (39 L.R.A. 456) as to decision against constitutional right as 
 a nullity subject to collateral attack; (31 Am. St. Rep. 105; 37 Am. St. Rep. 
 588) on ex post facto laws. 
 
 Overruled in effect in Kelly v. People, 17 Colo. 135, 29 Pac. 805, sustaining 
 limitation of conviction to murder in second degree, where authorization of first 
 degree ex post facto. 
 Computation of time. 
 
 Cited in Mora v. People, 19 Colo. 264, 35 Pac. 179, holding that from midnight 
 Saturday until midnight following Saturday is week for execution of criminal; 
 Vailes v. Brown, 16 Colo. 466, 14 L. R. A. 123, 27 Pac. 945, requiring filing of 
 statement of intention to contest election on Saturday if Sunday last day. 
 
 Cited in note ( 78 Am. St. Rep. 385 ) on computation of time. 
 
 Distinguished in Evans v. Bowers, 13 Colo. 514, 22 Pac. 812, requiring ex- 
 clusion of day of filing application in computing time between application for 
 habeas corpus and sitting of district court. 
 L.R.A. Au. Vol. I. 70. 
 
6 L.R.A. 475] L. R. A. CASES AS AUTHORITIES. 1106 
 
 6 L. R. A. 475, FAIRBANKS v. SARGENT, 117 N. Y. 320, 22 N. E. 1039. 
 Eqnitable assignments. 
 
 Cited in Niles v. Mathusa, 162 N. Y. 552, 57 N. E. 184, Affirming 20 App. Div. 
 486, 47 N. Y. Supp. 38, holding assignment of liquor tax certificate, valid without 
 delivery to proper assignee making advancements to procure same, and without 
 recording as to creditors; York v. Conde, 61 Hun, 29, 15 N. Y. Supp. 380, holding 
 agreement to deliver avails of contract made in consideration of indorsement 
 enabling performance, an equitable assignment; Harwood v. La Grange, 137 N. Y. 
 540, 32 N. E. 1000, holding that attorney has lien as equitable assignee, upon 
 proceeds of action he conducted for compensation payable from recovery; Schu- 
 bert v. Herzberg, 65 Mo. App. 585, holding rights under attorneys' agreement to 
 prosecute for 40 per cent of judgment, superior to those of subsequent execution 
 creditor; Randel v. Vanderbilt, 75 App. Div. 318, 78 N. Y. Supp. 124, holding 
 assignment of portion of recovery of claims in litigation, with notice to defend- 
 ant, not create equitable assignment; Collins & A. Co. v. United States Ins. Co. 
 
 7 Tex. Civ. App. 581, 27 S. W. 147, holding jury to determine whether equitable 
 assignment created by intention to transfer part of insurance: Wooster v. Trow- 
 bridge, 115 Fed. 727, holding contract by trustee in insolvency giving power to 
 prosecute, or settle doubtful claim for share of proceeds, equitable assignment. 
 
 Distinguished in Netling v. Netling, 60 App. Div. 412, 69 N. Y. Supp. 984, 
 holding promise to pay portion of future income in lieu of alimony, not equi- 
 table assignment; Donovan v. Middlebrook, 95 App. Div. 367, 88 N. Y. Supp. 607, 
 holding that an agreement that a third person is entitled to onehalf of a certain 
 fund, is not an equitable assignment; Holmes v. Bell, 139 App. Div. 462, 124 
 N. Y. Supp. 301, holding that contract by attorney to give information upon 
 which suit might be prosecuted for percentage is not equitable assignment of 
 percentage subsequently recovered by another attorney; Pettibone v. Thomson, 
 72 Misc. 495, 130 N. Y. Supp. 284, holding that written agreement to pay debt 
 out of fund without transferring any part of fund or authorizing holder to pay, 
 is not equitable assignment. 
 
 Cited in note (10 Eng. Rul. Cas. 478) on equitable assignment of future chattels 
 as security. 
 
 Distinguished in Rydson v. Larson, 3 Neb. (Unof. ) 900, 93 N. W. 195, holding 
 where vendor of a threshing machine was to collect amounts due from threshing 
 and apply one half to payment on machine that vendor could not so collect 
 where vendee of machine sold to a third party; People v. Birnbaum, 114 App. 
 Div. 486, 100 N. Y. Supp. 160, holding that an attorney might be guilty of lar- 
 ceny of the client's share though acting on a contingent fee. 
 Compromise of claim pledged. 
 
 Cited in Field v. Sibley, 74 App. Div. 84, 77 N. Y. Supp. 252, holding that 
 pledgee of bonds exercising power of collection must obtain cash, unless pledgeor 
 consents to another course. 
 
 Cited in note (28 L.R.A. (N.S.) 980) on authority of pledgee to compromise 
 obligations held as collateral. 
 Priority of assignment. 
 
 Cited in Fortunato v. Patten, 147 N. Y. 283, 41 N. E. 572, Reversing 5 Misc. 
 238, 25 N. Y. Supp. 333, upholding assignment prior in point of time, although 
 no notice given debtor or subsequent assignee; Leask v. Hoagland, 64 Misc. 165, 
 118 N. Y. Supp. 1035, holding that notice of an assignment given to debtor 
 serves only to prevent payment by debtor to assignor. 
 
 Distinguished in Beran v. Tradesmen's Nat. Bank, 137 N. Y. 456, 33 N. E. 
 
1J07 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 483 
 
 5!)3, upholding debtor's payment to assignor when made to buy peace, notwith- 
 standing assignee's notice of claim. 
 Rights of equitable ii->iu 11 < upon payment to assignor. 
 
 Cited in Freeman v. Rich, 64 Hun, 481, 19 N. Y. Supp. 498, holding pledgee of 
 book accounts remaining in merchant's hands, entitled to proceeds to extent of 
 claim as against administrators; Kerr v. Kennedy, 119 Iowa, 242, 93 N. W. 353, 
 holding attorney claiming portion of collection by equitable assignment cannot 
 reach it in third party's hands by garnishment. 
 
 Distinguished in Beran v. Tradesmen's Xat. Bank, 137 X. Y. 459, 33 X. E. 
 593, holding evidence admissible that payment to assignor by defendant was to 
 buy peace, and not in acknowledgment and settlement of claim, part of which 
 \vus assigned. 
 Loss of lien by pledgee. 
 
 Cited in Hickok v. Cowperthwait, 137 App. Div. 95, 122 X. Y. Supp. 78, 
 holding that pledgee may temporarily return property to pledger for some special 
 purpose without losing lien; Heimowitz v. Berg, 72 Misc. 404, 130 N. Y. Supp. 
 157, holding that lien of pledgee of stock was not lost by lending stock to another 
 for a week to vote it. 
 
 Cited in note (39 L.R.A. (N.S.) 890) on effect of surrender of pledge upon 
 rights of pledgee. 
 
 6 L. R. A. 481, DIERSTEIN v. SCHUBKAGEL, 131 Pa. 46, 18 Atl. 1059. 
 What matters considered on appeal. 
 
 Cited in Lowrey v. Robinson, 141 Pa. 194, 28 W. X. C. 29, 21 Atl. 513, holding 
 refusal to strike out evidence received without objection, or to enter compulsory 
 nonsuit, not reviewable; Com. v. Hanley, 15 Pa. Super. Ct. 277, holding sufficiency 
 of evidence not reviewable upon assignment of error for refusal to arrest judg- 
 ment. 
 Privileged communications between attorney and client. 
 
 Cited in Seip Estate, 163 Pa. 432, 35 W. X. C. 402, 43 Am. St. Rep. 803, 30 
 Atl. 226, holding attorney in will contest competent to testify as to parties 
 therein, in subsequent suit for proceeds; Mclntosh v. Moore, 22 Tex. Civ. App. 
 25. 53 S. W. 611, holding question to attorney, in divorce proceedings against 
 testator, as to effect of destruction of will, privileged, in proceeding to probate 
 missing will; Re Ruos, 159 Fed. 257, holding knowledge, which an attorney ob- 
 tained from third persons, not privileged. 
 
 Cited in footnotes to Koeber v. Somers, 52 L. R. A. 512. which holds conversa- 
 tion authorizing attorney to compromise action not privileged ; Bruley v. Gar- 
 vin, 48 L. R. A. 839, holding conversation with attorney with reference to con- 
 templated suit in which opinion is sought and obtained without fee, although not 
 between attorney and client, privileged. 
 
 Cited in notes (66 Am. St. Rep. 220, 240) on attorneys as witnesses; (67 L.R.A. 
 923) on admissibility of communications to persons serving in judicial capacity. 
 
 6 L. R. A. 483, COSKERY v. XAGLE, 83 Ga. 696, 20 Am. St. Rep. 333, 10 
 
 S. E. 491. 
 Liability of innkeepers. 
 
 Cited in Keith v. Atkinson, 48 Colo. 482, 139 Am. St. Rep. 284, 111 Pac. 55, 
 holding that innkeeper is deemed in constructive possession of baggage where 
 checks are delivered to bell-boy. 
 
 Cited in footnotes to Fay v. Pacific Improv. Co. 16 L. R. A. 188. which holds 
 character of guest at hotel not lost by merely inquiring as to price of room and 
 
6 L.R.A. 483] L. R. A. CASES AS AUTHORITIES. 1108 
 
 board; Amey v. Winchester, 39 L. R. A. 760. which denies hotel keeper's liability 
 for loss of hats left on racks by persons attending club banquet at hotel; Rains v. 
 Maxwell House Co. 64 L. R. A. 471, which denies hotel keeper's liability for 
 watch not deposited in safe; State v. Steele, 8 L. R. A. 516, which authorizes ex- 
 pulsion from hotel of liveryman soliciting orders against rules. 
 
 Cited in notes (6 L. R. A. 620) as to bailments; (8 L. R. A. 98) as to liability 
 of innkeeper as insurer; (12 L. R, A. 382) as to responsibility of innkeeper as 
 bailee; (34 L.R.A. (N.S.) 420, 421) as to when relation of innkeeper and guest 
 initiated; (99 Am. St. Rep. 578, 584, 585, 600; 13 Eng. Rul. Cas. 129) on liabil- 
 ity of innkeeper for property of guest. 
 
 "Distinguished in Brewer v. Caswell, 132 Ga. 567, 23 L.R.A.(X.S.) 1109, 131 
 Am. St. Rep. 216, 64 S. E. 674, 16 A. & E. Ann. Cas. 936, holding relation of inn- 
 keeper and guest not established merely by delivering property to innkeeper. 
 Nature of action for breach of marriagre promise. 
 
 Cited in Keim v. Brumbaugh, 29 Pa. Super. Ct. 560, holding action in form of 
 trespass for breach of contract to marry was ex contractu. 
 
 6 L. R. A. 487, GALUSHA v. GALUSHA, 116 N. Y. 635, 15 Am. St. Rep. 453 , 
 
 22 N. E. 1114. 
 
 Report of second appeal in 138 N. Y. 280, 33 X. E. 1062. 
 Agreement for separation. 
 
 Cited in Chamberlain v. Cuming, 29 N. Y. S. R. 675, 8 N. Y. Supp. 851, hold- 
 ing agreement for separation not affected by wife's subsequent action for divorce : 
 Meyerl v. Meyerl, 125 Mich. 610, 84 N. W. 1100, holding that wife can file bilT 
 for separate maintenance under statute, when husband refuses to perform separa- 
 tion agreement; Bufe v. Bufe, 88 Mo. App. 634, holding antenuptial agreement 
 to release dower in consideration of sum paid after marriage, not affected by 
 divorce; Chamberlain v. Cuming, 37 Misc. 816, 76 N. Y. Supp. 896, holding separa- 
 tion agreement made after separation, valid; Foote v. Xickerson, 70 X. H. 512 r 
 54 L. R, A. 563, footnote, p. 554, 48 Atl. 1088, holding agreement to dissolve 
 marriage tie, void; Bowers v. Hutchinson. 67 Ark. 25, 53 S. W. 399, holding that 
 separation agreement releases wife's right to share in husband's personal estate ; 
 Jones v. Jones, 1 Colo. App. 31, 27 Pac. 85, holding new agreement for support 
 of wife as long as she is unmarried, made after divorce, releases husband from 
 former agreement; Lawrence v. Lawrence, 32 Misc. 505, 66 X. Y. Supp. 393. 
 holding separation agreement before separation, pending divorce, invalid; Hughe-* 
 v. Cuming, 36 App. Div. 305, 55 X. Y. Supp. 256, holding agreement to con- 
 tinue to live apart, made after separation, valid; Greenleaf v. Blakeman, 40 App. 
 Div. 376, 58 X. Y. Supp. 76, holding agreement that husband should furnish se- 
 curity in articles of separation binding and enforceable by trustee; Atherton v. 
 Atherton, 82 Hun, 186, 31 X. Y. Supp. 977, holding separation agreement is 
 binding and determines amount of compensation for support; Duryea v. Bliven, 
 122 X. Y. 570, 25 X. E. 908, holding that prohibition of father from seeing chil- 
 dren, as provided in agreement, prevents wife's recovery of payments; Buckel v. 
 Suss, 28 Abb. X. C. 24, 18 N. Y. Supp. 719, holding that wife cannot maintain 
 action for alienating affection of husband after voluntary separation; Carling v. 
 Carling, 42 Misc. 493, 86 X. Y. Supp. 46, holding contract between husband and 
 wife, after separation, for her support, though not against public policy, not 
 actionable; People ex rel. Public Charities & Correction v. Cullen, 153 X. Y. 636, 
 44 L.R.A. 423, 47 X. E. 894., 12 X. Y. Crim. Rep. 466, holding wife not abandoned 
 by husband when she has obtained decree of separation; Clark v. Fosdick, 118 
 X. Y. 18, 23 X. E. 136 (dissenting opinion), majority holding tripartite agree- 
 ment for separation enforceable by trustee; Barnes v. Klug, 129 App. Div. 196 r 
 
1109 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 487 
 
 113 X. Y. Supp. 324; Effray v. Effray, 110 App. Div. 547, 97 N. Y. Supp. 286, 
 holding articles of separation valid where separation has already taken place; 
 Moreland v. Moreland, 108 Va. 103, 60 S. E. 730, holding a contract for main- 
 tenance of wife by husband is always enforcible; Winter v. Winter, 191 X. Y. 468, 
 16 L.R.A. (X.S.) 713, 84 X. E. 382, holding where husband and wife having sep- 
 arated enter into an agreement to live separate and husband to pay a certain 
 amount to wife for her support that wife might enforce same in her own name; 
 Bailey v. Dillon, 186 Mass. 246, 66 L.R.A. 428, 71 N. E. 538, holding an agreement 
 "between husband and wife whereby property is placed in trust for support of 
 wife might be enforced; Buttlar v. Buttlar, 71 N. J. Eq. 676, 65 Atl. 485, holding 
 that a decree of divorce will divest a wife of her rights under articles of sepa- 
 ration; Hiett v. Hiett, 74 Xeb. 100, 103 N. W. 1051, holding articles of agree- 
 ment made after separation if fair and free from fraud are binding; Halstead 
 v. Halstead, 74 X. J. Eq. 599, 70 Atl. 928, sustaining separation agreement 
 as to alimony; Pryor v. Pryor, 88 Ark. 309, 129 Am. St. Rep. 102, 114 S. W. 700, 
 holding that a husband may contract for the payment of alimony in contempla- 
 tion of an immediate divorce; Whitney v. Whitney Elevator & Warehouse Co. 
 180 Fed. 192, holding that the court cannot in a suit for divorce abrogate or 
 change provisions in a previous valid contract of separation without consent of 
 parties. 
 
 Cited in footnotes to Baum v. Baum, 53 L. R. A. 650, which holds void, separa- 
 tion agreement on consideration that husband support wife and children, and 
 assign policies on his life; Palmer v. Palmer, 61 L. R. A. 641, which holds void, 
 contract between husband and wife to secure divorce; Bailey v. Dillon, 66 L.R.A. 
 427, which sustains right of husband and wife in contemplation of separation 
 to enter into fair and reasonable agreement through intervention of trustee as 
 to wife's support which during continuance of separation husband may have 
 specifically enforced. 
 
 Cited in notes (9 L. R. A. 113) on articles of separation; (6 L. R, A. 132) as 
 to when agreement of separation valid; (12 L.R.A,(N.S.) 850, 852) on validity 
 of agreement between husband and wife renouncing marital rights; (83 Am. St. 
 Rep. 863, 869, 871, 874, 875) on validity and effect of separation agreements. 
 Alimony. 
 
 Cited in Wells v. W 7 ells, 10 N. Y. S. R, 255, holding allowance of one half 
 earning capacity of husband not excessive; Johns v. Johns, 44 App. Div. 536, 
 60 X. Y. Supp. 865, holding that right to alimony ceases with death of husband; 
 Grube v. Grube, 65 App. Div. 241, 72 N. Y. Supp. 529, denying weekly allowance 
 pending action for divorce when separation agreement in force; Taylor v. Taylor, 
 32 Misc. 314, 66 X. Y. Supp. 561, denying right to alimony in divorce action after 
 wife has released husband from liability for support; France v. France, 38 
 Misc. 460, 77 X. Y. Supp. 1015, holding bond by husband to support wife, after 
 separation, enforceable; Byrnes v. Byrnes, 126 App. Div. 623, 111 N. Y. Supp. 
 72, holding that a subsequent commission of adultery by husband does not affect 
 .a former decree separating husband and wife from bed and board; State v. 
 Karagavoorian, 32 R. I. 483, 79 Atl. 1111, to the point that wife cannot in action 
 for divorce obtain alimony other than that specified in articles of separation. 
 
 Cited in footnotes to Filer v. Filer, 6 L. R. A. 399, which holds jurisdiction to 
 allow alimony not ousted by plea of dismissal of former suit for absolute 
 divorce; Henderson v. Henderson, 48 L. R. A. 766, which holds that decree in con- 
 formity with separation agreement for payment of stipulated monthly sum for 
 ivife's maintenance cannot be modified without wife's consent. 
 
6 L.R.A. 487] L. R. A. CASES AS AUTHORITIES. 
 
 Condonation and reconciliation. 
 
 Cited in Adams v. Adams, 57 Misc. 152, 106 N. Y. Supp. 1064, holding that a 
 husband defendant cannot compel his plaintiff wife to enter final judgment where 
 she is entitled to an absolute divorce and has an interlocutory judgment in her 
 favor. 
 
 6 L. R. A. 491, ADAMS v. IRVING NAT. BANK, 116 N. Y. 606, 15 Am. St. Rep. 
 
 447, 23 N. E. 7. 
 What matters considered on appeal. 
 
 Cited in Martin v. Home Bank, 160 N. Y. 199, 54 N. E. 717, holding that 
 grounds for reversal will not be considered on appeal if questions not raised in 
 trial court; Dr. David Kennedy Corp. v. Kennedy, 165 N. Y. 362, 59 N. E. 133, 
 holding that defense not raised at trial cannot be presented first on appeal ; 
 Reich v. Cochran, 151 N. Y. 129, 37 L. R. A. 808, 56 Am. St. Rep. 607, 45 N. E. 
 367, holding that questions as to regularity of proceedings and vaildity of judg- 
 ment cannot be raised first on appeal; Sterrett v. Third Nat. Bank, 122 N. Y. 
 662, 3 Silv. Ct. App. 140, 25 N. E. 913, holding that question as to remedy can- 
 not be considered on appeal from ruling on motion for nonsuit on ground that 
 case not made by plaintiff; Lanahan v. Henry Zeltner Brewing Co. 20 Misc. 554, 
 46 N. Y. Supp. 431, holding motion to dismiss at close of evidence, without indi- 
 cating particular in which proof insufficient, not reviewable on appeal; Brozek v. 
 Steinway R. Co. 161 N. Y. 65, 55 N. E. 395; Wells v. Higgins, 132 N. Y. 464, 
 30 N. E. 464, 861, refusing to sustain general exception when charge correct in' 
 part; Friend v. Jetter, 19 Misc. 105, 43 N. Y. Supp. 287, holding general excep- 
 tion to instruction insufficient, when charge not obviously bad. 
 Duress. 
 
 Cited in Lazzarone v. Oishei, 2 Misc. 203, 21 N. Y. Supp. 267; Sawyer v, 
 Gruner, 44 N. Y. S. R. 204, 17 N. Y. Supp. 465, holding party enabled by circum- 
 stances to exercise controlling influence over conduct of another, not permitted 
 to use position for purposes of extortion; Tucker v. Roach, 139 Ind. 288, 38 N. E. 
 822, holding mortgage procured through fraud, in settlement of invalid claim, un- 
 enforceable; Sistare v. Heckscher, 15 N. Y. Supp. 739, setting aside conveyance of 
 wife to husband's creditor, induced by false representation of husband that same 
 necessary to save him from financial ruin; Silsbee v. Webber, 171 Mass. 381, 
 50 N. E. 555, holding proof of transfer of property made to prevent threatened 
 report to father of son's embezzlement, sufficient to go to jury on question of 
 duress; Gray v. Freeman, 37 Tex. Civ. App. 562, 84 S. W. 1105, holding that 
 threats must be controlling influence over the will; Sawyer v. Gruner, 28 Jones & 
 S. 288, 17 N. Y. Supp. 465, holding that money paid under duress or compulsion 
 might be recovered; Kilpatrick v. Germania L. Ins. Co. 183 N. Y. 170, 2 L.R.A. 
 (N.S.) 579, 111 Am. St. Rep. 722, 75 N. E. 1124, holding that an illegal bonus 
 obtained by duress might be recovered. 
 
 Cited in footnotes to Flack v. National Bank of Commerce, 17 L. R. A. 583, 
 which holds threat by bank to institute proceedings to collect unmatured note not 
 duress; First Nat. Bank v. Sargent, 59 L. R. A. 296, which holds payment of 
 bonus exacted of debtor as condition to reconveyance of real estate held as se- 
 curity, may be recovered back; Springfield F. & M. Ins. Co. v. Hull, 25 L. R. A. 
 37, which upholds right to maintain suit for balance due on policy without 
 tendering back less sum accepted under threats of groundlesss prosecution. 
 
 Cited in notes (9 L.R.A. 633) on when payment involuntary; (30 Am. St. 
 Rep. 337, 338) on duress by frauds; (94 Am. St. Rep. 419) on recovery back of 
 voluntary payment. 
 
1111 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 491 
 
 Distinguished in Jewelers' League v. De Forest, 80 Hun, 379, 30 X. Y. Supp. 
 88, holding threat to dispose of son's remains contrary to mother's wish, not 
 ground for avoiding assignment of insurance policy; Foerster v. Squier, 46 N. Y. 
 S. R. 292, 19 N. Y. Supp. 387, holding indorsement of note under threat of payee 
 to file mechanic's lien against buildings being erected for indorser, is for valuable 
 consideration. 
 Threatening; persons innocent of offense. 
 
 Cited in Cribbs v. Sowle, 87 Mich. 348, 24 Am. St. Rep. 166, 49 N. W. 587, hold- 
 ing money extorted on fictitious claim under threat of imprisonment on false 
 charge, 'recoverable ; Jaeger v. Koenig, 30 Misc. 582, 62 N. Y. Supp. 803, holding 
 recoverable, money paid by wife to husband's employer, on representation that 
 husband would otherwise be prosecuted for larceny; Heaton v. Norton County 
 State Bapk, 59 Kan. 292, 52 Pac. 876, holding contract transferring wife's prop- 
 erty to creditor of husband, under threat of criminal prosecution of latter, not 
 binding; Buckley v. New York, 30 App. Div. 466, 52 N. Y. Supp. 452, holding 
 payment for license to construct vault, induced by threat of city inspector to 
 have workman arrested, and stop construction of building, not voluntary. 
 
 Cited in note (26 L. R. A. 58) on contracts procured by threats of prosecution 
 of relative. 
 Threatening- to prosecute person amenable to criminal process. 
 
 Cited in Hartford F. Ins. Co. v. Kirkpatrick, 111 Ala. 467, 26 So. 651, holding 
 settlement of claim procured by threat of arrest and imprisonment unlawful ; 
 Thompson v. Niggley, 53 Kan. 664, 26 L. R, A. 805, 35 Pac. 290, holding securities 
 extorted by threats of person amenable to criminal prosecution, voidable ; Morse 
 v. Woodworth, 155 Mass. 252, 29 X. E. 525, holding contract procured by threats 
 of imprisonment, not enforceable; City Nat. Bank v. Kusworm, 88 Wis. 199, 26 
 L. R. A. 62, 43 Am. St. Rep. 880, 59 N. W. 564, holding that wife may avoid note 
 given under threat of criminal prosecution of sick husband ; Hargreaves v. 
 Korcek, 44 Neb. 670, 62 N. W. 1086, holding mortgage procured on homestead 
 under threats of imprisonment of guilty husband, not enforceable; Gorringe v. 
 Reed, 23 Utah, 137, 90 Am. St. Rep. 692, 63 Pac. 902, holding deed executed by 
 wife to prevent threatened prosecution of guilty husband, voidable; Hensinger v. 
 Dyer, 147 Mo. 229, 48 S. W. 912, holding wife's execution of contract induced 
 by threats of criminal prosecution of husband, voidable; Perkins v. Adams, 17 
 Tex. Civ. App. 335, 43 S. W. 529, holding contract of infirm person induced by 
 threat of prosecution of his sons for selling mortgaged property, voidable ; Strang 
 v. Peterson, 56 Hun, 421, 10 N. Y. Supp. 139 (dissenting opinion), majority hold- 
 ing mortgage for payment of son's obligation arising from forgery, and to pre- 
 vent criminal prosecution, void; Marlatte v. Weickgenant, 147 Mich. 274, 110 
 N. W. 1061, holding that an action on the case will be to redress extortion of 
 money by means of an abuse of criminal process; Williamson, H. F. Co. v. Acker- 
 man, 77 Kan. 508, 20 L.R.A.(N.S.) 491, 94 Pa. 807, setting aside a mortgage 
 made by father because, of threat of prosecution of son though son was guilty; 
 Burton v. McMillan, 52 Fla. 482, 8 L.R.A. (N.S.) 995, 120 Am. St. Rep. 220, 42 
 So. 849, 11 A. & E. Ann. Cas. 380, setting aside a deed executed by wife under 
 threats of prosecution ; Kwentsky v. Sirovy, 142 Iowa, 400, 121 N. W. 27, hold- 
 ing that a deed obtained by threat of criminal prosecution might be set aside; 
 Yowcll v. Walker, 118 La. 47, 42 So. 635, on invalidity of notes given for prom- 
 ise to stop a criminal prosecution; Ball v. Ward, 76 N. J. Eq. 27, 74 Atl. 158, 
 holding that threats of criminal prosecution of son constitutes duress though 
 imprisonment would be lawful: Bianchi v. Leon, 138 App. Div. 226, 122 X. Y. 
 Supp. 1004, to the point that settlement of demand by threat of criminal prosecu- 
 
6 L.R.A. 491] L. R. A. CASES AS AUTHORITIES. 1112 
 
 tion may be set aside; Vroom v. Litt, 70 Misc. 376, 128 N. Y. Supp. 758. hold- 
 ing that obtaining money under threats of lawful arrest on criminal charge 
 constitutes duress. 
 
 Distinguished in Gregor v. Hyde, 10 C. C. A. 293, 27 U. S. App. 75, 62 Fed. 110, 
 holding threat of lawful arrest of person amenable to criminal prosecution not 
 ground for cancelation of deed by parent. 
 
 6 L. R. A. 495, DARROW v. FAMILY FUND SOC. 116 N. Y. 537, 15 Am. St. 
 
 Rep. 430, 22 N. E. 1093. 
 Construction of conditions in policy. 
 
 Cited in Berliner v. Travelers' Ins. Co. 121 Cal. 461, 41 L. R. A. 469, 66 Am. 
 St. Rep. 49, 53 Pac. 918, holding locomotive "conveyance for passengers" within 
 provision of accident policy imposing double liability for death therein; Moulton 
 v. Aetna F. Ins. Co. 25 App. Div. 281, 49 N. Y. Supp. 570, holding chattel mortgage 
 of firm property by one partner to another to secure advances by latter to firm, 
 not encumbrance within provision of fire policy; Mead v. American F. Ins. Co. 
 13 App. Div. 480, 43 N. Y. Supp. 334, holding double insurance resulting from 
 operation of law, not violation of condition against additional insurance ; Caraher 
 v. Royal Ins. Co. 63 Hun, 93, 17 N. Y. Supp. 858, holding condition in fire policy 
 against vacancy, not violated where insured church tended by sexton and visited 
 by rector, though no services held; Sneck v. Travelers' Ins. Co. 88 Hun, 97, 34 
 "N. Y. Supp. 545, holding "entire hand" lost within provisions of accident policy, 
 where fingers amputated and use of entire hand lost; Coles v. New York Casualty 
 Co. 87 App. Div. 46, 83 N. Y. Supp. 1063, holding exception in accident policy of 
 injuries resulting from "fighting" does not cover injuries to bartender attacked 
 by customer ordered to leave; Sneck v. Travelers' Ins. Co. 81 Hun, 335, 30 N. Y. 
 Supp. 881 (dissenting opinion), majority holding amputation of fingers causing 
 'loss of use of entire hand, not loss of entire hand within provision of accident 
 policy; England v. Westchester F. Ins. Co. 81 Wis. 589, 29 Am. St. Rep. 917, 51 
 N. W. 954, holding that condition against vacancy of premises operates from 
 moment policy takes effect, though premises then vacant; Phillips v. United 
 -States Grand Lodge, I. O. S. B. 37 Misc. 870, 76 N. Y. Supp. 1000, burden of 
 proof on insurer to show beneficiary's failure to serve notice of death as required 
 "by policy; Spitz v. Mutual Ben. Life Asso. 5 Misc. 251, 25 N. Y. Supp. 469, hold- 
 ing failure to state membership in benevolent association or to disclose existence 
 of half-brothers in answer to inquiries as to other insurance and living brothers, 
 not suppression of material facts avoiding insurance; Cole v. Preferred Acci. Ins. 
 Co. 40 Misc. 262, 81 N. Y. Supp. 901, giving proviso limiting time for bringing 
 action on policy construction most favorable to insured; Behling v. Northwest- 
 ern Nat. L. Ins. Co. 117 Wis. 27, 93 N. W. 800, holding that court cannot, to 
 prevent forfeiture, go further than fair construction of language permits ; Darling 
 v. Protective Assur. Soc. 71 Misc. 117, 127 N. Y. Supp. 486, holding that for 
 purpose of upholding insurance policy its provisions will be strictly construed 
 against insurer. 
 
 Cited in notes (17 Am. St. Rep. 247) on waiver of conditions in insurance 
 policies; (13 L.R.A.(N.S-) 262) on necessity that death be reasonable and legiti- 
 mate consequence of violation of law, to relieve insurer; (14 Eng. Rul. Cas. 19) 
 on rules for construing insurance policies. 
 
 Distinguished in Baldwin v. Provident Sav. Life Assur. Soc. 23 App. Div. 7, 
 48 N. Y. Supp. 463, holding policy voided by failure to pay mortuary premium 
 within stipulated time limit; Fitzgerald v. Supreme Council, Catholic Mut. Ben. 
 Asso. 39 App. Div. 256, 56 N. Y. Supp. 1005, holding statements in medical ex- 
 amination and application not warranties when not referred to in policy; Sterna- 
 
1113 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 495 
 
 man v. Metropolitan L. Ins. Co. 49 App. Div. 476, 63 N. Y. Supp. 674, holding 
 insured bound by application warranting correct record of medical examination, 
 though incorrectly written by examiner; Duran v. Standard Life & Acci. Ins. Co. 
 63 Vt. 438, 13 L. R. A. 638, 25 Am. St. Rep. 773, 22 Atl. 530, holding hunting on 
 Sunday "violation of law" within exemption from liability. 
 Suicide. 
 
 Cited in Campbell v. Supreme Conclave I. O. H. 66 N. J. L. 282. 54 L. R. A. 
 579, 49 Atl. 550; Morris v. State Mut. Life Assur. Co. 183 Pa. 573, 41 W. X. C. 
 355, 39 Atl. 52, enforcing policy in favor of wife as beneficiary where no pro- 
 vision against liabilty in case of suicide; Supreme Conclave, I. O. H. v. Miles. 
 02 Md. 628, 84 Am. St. Rep. 528, 48 Atl. 845, holding suicide no defense where 
 there is no provision against same and policy was obtained in good faith; 
 Meacham v. New York State Mut. Ben. Asso. 120 X. Y. 242, 24 X. E. 283, holding 
 suicide not violation of "laws of the land" within provision avoiding policy; 
 Royal Circle v. Achterrath, 204 111. 566, 63 L. R. A. 458, 98 Am. St. Rep. 224, 
 08 X. E. 492, holding suicide not death "on account of violation of any criminal 
 law," within provision avoiding mutual benefit certificate; Seller v. Economic 
 Life Asso. 105 Iowa, 95, 43 L. R. A. 540, 74 X. W. 941, holding beneficiary en- 
 titled to enforce policy after insured's suicide where no provision against liability 
 in such event; Patterson v. Xational Premium Mut. L. Ins. Co. 100 Wis. 123, 
 42 L. R. A. 258, 69 Am. St. Rep. 899, 75 X. W. 980, holding suicide covered by 
 "incontestable" clause of policy though technically a crime; Grand Legion, K. of 
 A. v. Beaty, 224 111. 349, 8 L.R.A. (X.S.) 1128, 79 X. E. 565, 8 A. & E. Ann. Cas. 
 160, holding suicide of a member of a mutual benefit society did not defeat re- 
 covery. 
 
 Cited in footnotes to Wells v. Xew England Mut. L. Ins. Co. 53 L.R.A. 327, 
 which denies right to recover on policy for death of one voluntarily submitting to 
 abortion to get rid of illegitimate child; Shipman v. Protected Home Circle, 63 
 L.R.A. 347, which holds rights of beneficiary terminated by suicide of assured; 
 Royal Circle v. Achterrath, 63 L.R.A. 452, which holds suicide not a crime with- 
 in meaning of benefit certificate. 
 
 Cited in notes (78 Am. St. Rep. 264) on suicide as crime: (84 Am. St. Rep. 
 541, 543, 544) on self-destruction as defense to life insurance; (8 L.R.A. (X.S. ) 
 1125) on suicide while sane as defense to action on policy or certificate contain- 
 ing no provision as to effect thereof. 
 
 Distinguished in Hart v. Modern Woodmen, 60 Kan. 681, 72 Am. St. Rep. 380. 
 57 Pac. 936, holding provision against liability for suicide ''sane or insane" 
 exempts company where insured conscious of physical, if not moral, consequences 
 of act; McCoy v. Xorthwestern Mut. Relief Asso. 92 Wis. 582, 47 L. R. A. 684, 
 66 X. W. 697, holding provision of policy excluding liability for suicide binding 
 though unauthorized by by-laws of association; Cady v. Brooklyn Union Pub. Co. 
 23 Misc. 410, 51 X. Y. Supp. 198, holding false publication of suicide libelous 
 per se as injurious professionally though not charge of crime. 
 
 Overruled in Shipman v. Protected Home Circle, 174 X. Y. 410, 63 L. R. A. 
 352, 67 X. E. 83, holding suicide of insured while sane avoids mutual benefit cer- 
 tificate, under provision against death caused by own illegal act. 
 Death in consequence of crime. 
 
 Cited in McCue v. Xorthwestern Mut. L. Ins. Co. 93 C. C. A. 71, 167 Fed. 439. 
 holding execution of insured for crime one of risks assumed by insurer. 
 
 Cited in footnote to Supreme Lodge K. of P. v. Bradley, 67 L.R.A. 770, which 
 holds clause in policy relieving insurer from liability for death due to violation 
 
6 L.R.A. 495] L. R. A. CASES AS AUTHORITIES. 1114 
 
 of any criminal law inapplicable where insured was shot while attempting in 
 good faith to escape from a personal difficulty brought on by himself. 
 Action on assessment policy. 
 
 Cited in Aiken v. Massachusetts Ben. Asso. 34 N. Y. S. R. 697, 13 X. Y. Supp. 
 579, holding liability for face of policy complete where assessment returns full 
 amount; Martin v. Equitable Acci. Asso. 55 Hun, 576, 9 N. Y. Supp. 16, holding 
 that where 'one sues on an assessment policy because of failure of insurance 
 society to make an assessment that plaintiff must show amount he would have 
 received had assessment been made. 
 
 Cited in notes (8 L.R.A. 116) on action on contract of mutual benefit asso- 
 ciation; (52 Am. St. Rep. 577, 578) on action on mutual or membership life or 
 accident insurance. 
 
 Distinguished in Martin v. Equitable Acci. Asso. 55 Hun, 576, 9 N. Y. Supp. 
 16, reversing judgment on verdict where no proof of amount which would have 
 been realized on assessment. 
 Deatb fund. 
 
 Cited in Re Equitable Reserve Fund Life Asso. 61 Hun, 307, 16 N. Y. Supp. 80, 
 holding death claims to be paid pro rata out of reserve fund of insolvent cor- 
 poration, where death fund insufficient. 
 
 Distinguished in Re Equitable Reserve Fund Life Asso. 131 N. Y. 373, 30 
 N. E. 114, holding insured not entitled to resort to reserve fund on insufficiency 
 of death fund of insolvent company, when former held for distinct purposes. 
 
 6 L. R. A. 498, HESS v. CULVER, 77 Mich. 598, 18 Am. St. Rep. 421, 43 N. 
 
 W. 994. 
 Fraudulent representations. 
 
 Cited in Kelley v. Chenango Valley 'Sav. Bank, 21 Misc. 249, 45 N. Y. Supp. 
 651, holding savings bank liable to depositors for putting deposits in insolvent 
 bank which former claimed was under its control; Sanford v. Royal Ins. Co. 11 
 Wash. 670, 40 Pac. 609, holding release of insurer procured by fraud after loss, 
 invalid; Diel v. Kellogg, 163 Mich. 171, 128 N. W. 420, holding that letter 
 written with intent that it be used to induce purchase of stock was admissible to 
 establish fraudulent intent and complicity of promoter. 
 
 Cited in note (85 Am. St. Rep. 380) on liability for misrepresentations in- 
 directly made to complaining party. 
 Statute of frands. 
 
 Cited in Kemp v. National Bank, 48 C. C. A. 219, 109 Fed. 53, holding statute 
 of frauds not available to bank officer for false and fraudulent statement as to 
 bank's condition; Clark v. Hurd, 79 Mich. 132, 44 N. W. 343, holding oral repre- 
 sentation as to persons composing partnership, to induce sale of goods, not 
 within statute. 
 Bohemian oats. 
 
 Followed in Pearl v. Walter, 80 Mich. 318, 45 N. W. 181, facts being almost 
 identical with those of cited case. 
 
 Cited in Leland v. Goodfellow, 84 Mich. 362, 47 1ST. W. 591, holding declaration 
 in action for unauthorized transfer of note for Bohemian oats, insufficient, in not 
 alleging defendant's connections with fraud. 
 
 Cited in footnote to Griffith v. Shipley, 14 L. R. A. 405, which holds purchaser 
 of note known to have been given for "hulless oats" not a bona fide purchaser. 
 
 Cited in notes (6 L. R. A. 501) on Bohemian oats transactions; (8 L. R. A. 
 476) on relief from contract obtained by fraud; (18 Am. St. Rep. 438) on Bohe- 
 mian-oat transactions. 
 
1115 L. R. A. CASES AS AUTHORITIES, [6 L.R.A, 503 
 
 Distinguished in Knight v. Linzey, 80 Mich. 396, 8 L. R. A. 477, 45 N. W. 337, 
 holding that plaintiff knowing fraudulent character of Bohemian oat swindle can- 
 not recover money paid in redeeming note given for oats. 
 Misrepresentation** as to credit of third person. 
 
 Cited in Getchell v. Dusenbury, 145 Mich. 202, 108 N. W. 723, holding officers 
 of corporation not liable for representations as to corporation, made by them in 
 good faith where they make no profit thereby; Massey v. Luce, 158 Mich. 134, 
 122 X. W. 514, holding officers making false and fraudulent representations as to 
 condition of corporation, personally liable. 
 
 Distinguished in Knight v. Rawlings, 205 Mo. 428, 13 L.R.A.(N.S.) 212, 104 
 S. W. 38, 12 A. & E. Ann. Gas. 325, holding under statute that no action will 
 lie for oral misrepresentations as to a third party's credit. 
 Liability of transferer of tainted note. 
 
 Cited in note (27 L. R. A. 520, 521) on liability for transferring negotiable 
 note to bona fide holder so as to cut off defenses. 
 In part delicto. 
 
 Cited in Klein v. Pederson, 65 Neb. 455, 91 N. W. 281, holding money paid to 
 prevent criminal prosecution recoverable from one obtaining it by fraudulent 
 representations. 
 
 Cited in notes (12 L.R.A. 122; 22 Am. St. Rep. 539) on remedies' where party 
 in pari delicto. 
 Nature of contract as determining- validity. 
 
 Cited in footnote to Hunt v. Rumsey, 9 L. R. A. 674, which holds note in part 
 payment of note void for fraud, also void. 
 
 6 L. R. A. 501, EVANS v. STUHRBERG, 78 Mich. 145, 18 Am. St. Rep. 435, 
 
 43 N. W. 1046. 
 Obligation on contract tainted -with fraud. 
 
 Cited in footnotes to Hunt v. Rumsey, 9 L. R. A. 674, which holds note 
 in part payment of note void for fraud, also void; Griffith v. Shipley, 14 L. R. 
 A. 405, which holds purchaser of note known to have been given for "hulless 
 oats" not a bona fide purchaser. 
 
 Cited in notes (6 L. R. A. 499) on nature of contract as determining its va- 
 lidity; (7 L. R. A. 705) on when promissory note invalid; (8 L. R. A. 476) on 
 relief from contract obtained by fraud. 
 
 L. R. A. 503, McCREERY v. DAY, 119 N. Y. 1, 16 Am. St. Rep. 793, 23 
 
 N. E. 198. 
 Recovery under rescinded contract. 
 
 Cited in New York v. New York Refrigerating Constr. Co. 146 N. Y. 214, 
 40 N. E. 771, and Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 295, 51 N. 
 E. 986, Affirming 88 Hun, 345, 34 N. Y. Supp. 398, holding claim founded on 
 rescinded contract in respect to performance unavailable unless reserved in 
 rescission agreement; Browne v. Empire Type Setting Mach. Co. 44 App. Div. 
 602, 61 N. Y. Supp. 126, holding advances made under rescinded contract not 
 recoverable unless repayment provided for in agreement of rescission; Doherty 
 v. Shields, 86 Hun, 306, 33 N. Y. Supp. 497, sustaining recovery for materials 
 brought on ground under special contract, and not included in rescission agree- 
 ment; Hurst v. Trow Printing & Bookbinding Co. 2 Misc. 368, 22 X. Y. Supp. 
 371. holding rescission of contract in connection with which series of notes given, 
 simply determined contract as to unexpired period; Benedict v. Sliter, 82 Hun, 
 197, 31 N. Y. Supp. 413, sustaining recovery for services rendered in expectation 
 
6 L.R.A. 503] L. R. A. CASES AS AUTHORITIES. 
 
 of payment, after abandonment of contract to take care of lunatic during life; 
 Hayes v. Nashville, 26 C. C. A. 67, 47 U. S. App. 713, 80 Fed. 649, holding that 
 party rescinding contract may claim money due under it; Hurst v. Trow Print- 
 ing & Bookbinding Co. 2 Misc. 371, 22 N. Y. Supp. 371, Pryor, J., dissenting, 
 who holds that no right can be asserted under rescinded contract, but each 
 party restored to original position; Seymour v. Warren, 47 Misc. 317, 93 N. Y. 
 Supp. 651, holding right of action for damages, for breach of contract to take 
 charge of real estate and collect rents, lost where property was taken back by 
 owner into his own charge; Alabama Oil & Pipe Line Co. v. Sun Co. 99 Tex, 
 612, 92 S. W. 253, holding that cancelation and annulment of contract does not 
 discharge the parties from liabilities already incurred under it where the 
 intention of the parties was to the contrary. 
 
 Cited in note (9 L. R. A. 607) on effect of rescission of contract. 
 Consideration for rescission or new agreement. 
 
 Cited in Crutchfield v. Dailey, 98 Ga. 463, 25 S. E. 526, holding that executory 
 contract may be discharged by agreement; Oregon P. R. Co. v. Forrest, 128 N. 
 Y. 91, 28 N. E. 137, holding cancelation of agreement and mutual release of par- 
 ties, consideration for surrender of certain bonds; Lawrence v. Church, 35 N. 
 Y. S. R. 957, 12 N. Y. Supp. 420, holding mutual promises good consideration, 
 where one indebted to estate agreed to make certain payments and was to have 
 benefit of certain assets and action against him was to be discontinued; Bry- 
 ant v. Thesing, 46 Neb. 247, 64 N. W. 967, holding that executory written 
 contract to purchase goods may be rescinded by subsequent parol agreement; 
 Romaine v. Beacon Lithographic Co. 13 Misc. 123, 34 N. Y. Supp. 124, holding 
 that party may waive consideration for agreement to accept less sum, and if he- 
 carrier out modified agreement he cannot revoke it; Lipschutz v. Weatherly, 140 
 N. C. 369, 53 S. E. 132, holding contract rescinded by consent to new contract 
 differing from the first, and the release of the old was sufficient consideration. 
 
 Cited in note (39 Am. St. Rep. 745) on moral obligation as consideration to 
 uphold express promise. 
 Power to compromise. 
 
 Cited in Ft. Edward v. Fish, 156 N. Y. 372, 50 N. E. 973, holding water com- 
 missioners without power to compromise with vendee of water bonds under, 
 void sale in settlement of failure to deliver bonds. 
 Substituted agreement as satisfaction. 
 
 Cited in Bicknell v. Speir, 7 Misc. 112, 27 N. Y. Supp. 386, holding substi- 
 tuted parol agreement to accept notes in payment of agreed loan, good accord 
 and satisfaction of contract to make the loan; Davis v. Willis, 57 Hun, 203, 
 10 N. Y. Supp. 883, to point new agreement, although not performed, if founded 
 on good consideration, satisfaction if accepted as such; Mouquin v. Hergehan, 
 138 App. Div. 56, 122 N. Y. Supp. 858, to the point that written contract may 
 be released by substitution of oral agreement subsequently performed; Brown- 
 ing, K. & Co. v. Terwillinger, 144 App. Div. 519, 129 N. Y. Supp. 431, holding 
 that written lease is not discharged by substituted oral agreement unless the 
 latter is fully performed. 
 
 Cited in notes (11 L.R.A. 712) defining accord and satisfaction; (11 Eng. 
 Rul. Cas. 228; 56 Am. St. Rep. 6G9, 670) on modification of written contract by 
 subsequent parol agreement. 
 Changre of contract under seal by parol agreement. 
 
 Followed in Applebee v. Duke, 37 N. Y. S. R. 454, 13 N. Y. Supp. 929, hold- 
 ing parol evidence of settlement of indebtedness between partners available, al- 
 though partnership agreement under seal. 
 
1117 L. R. A. CASES AS AUTHORITIES. [G L.R.A. 506 
 
 Cited in McKenzie v. Harrison, 120 N. Y. 264, 8 L. R. A. 258, 17 Am. St. Rep. 
 638, 24 N. E. 458, holding that contract under seal may be modified by executed 
 parol agreement; Mclntosh v. Miner, 37 App. Div. 490, 55 N. Y. Supp. 1074; 
 Miller v. Sullivan, 33 Misc. 752, 67 N. Y. Supp. 168, holding that sealed instru- 
 ment may be abrogated by subsequent parol agreement; Platte Land Co. v. Hub- 
 bard, 12 Colo. App. 470, 56 Pac. 64, holding that sealed instrument may be 
 abrogated by parol agreement, as to time and condition of payment; Thom- 
 son v. Poor, 147 N. Y. 410, 42 N. E. 13, intimating that principle that sealed 
 cont/act can only be changed by one of equal solemn ?'-' may no longer have 
 any practical existence; San Remo Hotel Co. v. Brennan, 64 Hun, 611, 19 N. 
 Y. Supp. 276, holding that after breach of lease under seal, parol agreement 
 modifying its terms, based on sufficient consideration, and executed by one 
 party and partly performed by other, cannot be repudiated; Lenane v. Mayer, 18 
 Misc. 456, 41 N. Y. Supp. 960, holding that lease and suretyship thereon might 
 be abrogated by parties by new contract; Bowman v. Wright, 65 Neb. 663, 91 N. 
 W. 580, sustaining executed parol agreement to reduce rent under written lease; 
 Miller v. Sullivan, 33 Misc. 752, 67 N. Y. Supp. 168, holding sealed contract an- 
 nulled by executed parol agreement substituted; Davis v. Bingham, 39 Misc. 300. 
 79 N. Y. Supp. 469, sustaining executed parol modifications of written agree- 
 ment ; American Fine Art Co. v. Simon, 72 C. C. A. 45, 140 Fed. 536, holding that 
 unexecuted written contract may be discharged by subsequent oral agreement; 
 American Food Co. v. Halstead, 165 Ind. 637, 76 N. E. 251, holding sealed con- 
 tract abrogated by subsequent executed parol agreement ; Youngberg v. Lamberton, 
 91 Minn. 102, 97 N. W. 571, holding that written agreement may be modified by 
 parol; McKenzie v. Harrison, 120 N. Y. 264, 8 L.R.A. 257, 17 Am. St. Rep. 
 638, 24 X. E. 458, holding that executed parol agreement modifying written con- 
 tract under which the parties have made a settlement cannot be revoked. 
 
 Cited in note (6 Eng. Rul. Gas. 574) on discharge of contract under seal by 
 performance of subsequent parol agreement. 
 Interest. 
 
 Cited in Peck v. Granite State Provident Asso. 21 Misc. 85, 46 N. Y. Supp. 
 1042, holding payment on account does not extinguish interest; Graves v. Saline 
 County, 43 C. C. A. 416, 104 Fed. 63, holding acceptance of principal under pro 
 test, bar to recovery of interest not stipulated for. 
 
 Cited in note (40 L.R.A. (N.S.) 594) on acceptance of principal as affecting 
 right to interest. 
 E<|iiitnbl- defense to covenant. 
 
 Cited in Jenkins v. Craig, 22 Ind. App. 202, 53 N. E. 427, holding that equita- 
 ble ground for restraining enforcement of covenant or decreeing its discharge con 
 stitutes equitable defense in action on the covenant; New York v. Holzderber, 44 
 Misc. 511, 90 N. Y. Supp. 63, holding that "equitable defense" means one of which 
 .a court of equity would take cognizance. 
 
 '6 L. R. A. 506, McKENDRY v. McKENDRY, 131 Pa. 24, 18 Atl. 1078. 
 It ii;ln of action between husband anil wife. 
 
 Cited in Bennett v. Bennett, 37 W. Va. 398, 38 Am. St. Rep. 47, 16 S. E. 838. 
 holding wife's judgment against husband by confession on valid debt due her 
 separate estate, lien on his land, and valid against his creditors; Haun v. 
 Trainer, 20 Pa. Co. Ct. 626, 7 Pa. Dist. R. 235, sustaining right of wife's indorsee 
 to sue on husband's note; Mathewson v. Mathewson, 79 Conn. 33, 5 L.R.A. (N.S. ) 
 617, 63 Atl. 285, 6 A. & E. Ann. Cas. 1027, holding that under statute a married 
 woman may maintain an action at law against her husband to recover money 
 
6 L.R.A. 506] L. R. A. CASES AS AUTHORITIES. 1118 
 
 loaned to him; Heckman v. Heckman, 215 Pa. 205, 114 Am. St. Rep. 953, 64 
 Atl. 425, holding that wife may maintain suit in equity against her husband for 
 the protection of her separate estate. 
 
 Cited in footnotes to Lyon v. Lyon, 42 L. R. A. 195, which sustains injunc- 
 tion against husband's eating and sleeping in wife's house pending suit for di- 
 vorce; Bandfield v. Bandfield, 40 L. R. A. 757, which holds tort committed by 
 husband upon wife while they are living together not actionable. 
 
 Cited in notes (18 L.R.A. 791) on what title or interest will support action of 
 ejectment; (73 Am. St. Rep. 278) on suit between husband and wife. 
 
 6 L. R. A. 509, FAYETTEVILLE v. CARTER, 52 Ark. 301, 12 S. W. 573. 
 !.!< ii .* or tax on business. 
 
 Cited in Brewster v. Pine Bluff, 70 Ark. 30, 65 S. W. 934, sustaining annual' 
 license tax of $12 and $20 for drays and wagons; Wills v. Ft. Smith, 70 Ark_ 
 224, 66 S. W. 922, holding ordinance fixing fee for weighing coal not unreason- 
 able; Hot Springs v. Curry, 64 Ark. 155, 41 S. W. 55, holding ordinance regulat- 
 ing drumming or soliciting passengers for hotels presumed reasonable; Arka- 
 delphia Lumber Co. v. Arkadelphia, 56 Ark. 374, 19 S. W. 1053, holding fee of 
 $25 for ferry license, reasonable; Ft. Smith v. Hunt, 72 Ark. 563, 66 L.R.A. 241, 
 105 Am. St. Rep. 51, 82 S. W. 163, holding that city may impose license fee 
 upon poles of electric company within the city; Emerson v. McNeil, 84 Ark. 554, 
 15 L.R.A.(N.S.) 717, 106 S. W. 479, holding valid ordinance forbidding solicit- 
 ing customers for hotels or boarding houses upon depot platforms; Helena v. 
 Miller, 88 Ark. 265, 114 S. W. 237, holding license fee imposed by ordinance 
 presumed to be reasonable unless the contrary plainly appear; Trigg v. Dixon, 
 96 Ark. 202, 131 S. W. 695, Ann. Cas. 1912 B, 509, holding that annual fee of 
 fifty dollars for butcher's license required by municipal ordinance is reasonable; 
 Quong Wing v. Kirkendall, 39 Mont. 68, 101 Pac. 250, holding that classification 
 by legislature, for purpose of taxing a business, is presumed to be reasonable ; 
 Stamps v. Burk, 83 Ark. 355, 104 S. W. 153, holding ordinance requiring license 
 fee of $12.50 per three months for selling fresh meats, unreasonable and void. 
 
 Cited in footnotes to State ex rel. Beek v. Wagener, 46 L. R. A. 442, which 
 sustains statute regulating business of commission merchants handling agri- 
 cultural products; Littlefield v. State, 28 L. R. A. 588, which limits power to 
 license sales of milk to regulation, and not raising of revenue. 
 
 Cited in notes (9 L. R. A. 787) on taxes on occupations and business; (30 L. 
 11. A. 427, 432, 433) on limit of amount of license fees; (129 Am. St. Rep. 
 259) on constitutional limitations on power to impose license or occupation 
 taxes. 
 
 Distinguished in Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 512, 16 L.R.A. 
 (X.S.) 1036, 109 S. W. 293, holding license fee of ten to fifty dollars upon ve- 
 hicles unreasonable; Conway v. Waddell, 90 Ark. 130, 118 S. W. 398, holding 
 license fee of $25 per day upon peddlers unreasonable and invalid. 
 
 L. R. A. 510, EUREKA SPRINGS SCHOOL DIST. v. CROMER, 52 Ark. 454, 12 
 S. W. 878. 
 
 ii:iiiiii> on school -warrant. 
 
 Cited in School Dist. No. 7 v. Reeve, 56 Ark. 70, 19 S. W. 106, holding school 
 district liable on unpaid school warrant. 
 
 imitation of actions. 
 
 Cited in note (24 Am. St. Rep. 496) on limitation of actions. 
 
1119 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 515 
 
 6 L. R. A. 511, GEORGE v. BRADDOCK, 45 N. J. Eq. 757, 14 Am. St. Rep. 
 
 754, 18 Atl. 881. 
 Charitable uses and trnsts. 
 
 Cited in Garrison v. Little, 75 111. App. 416, upholding bequest for attain- 
 ment of woman suffrage; Jones v. Watford, 62 N. J. Eq. 343, 50 Atl. 180, sus- 
 taining bequest in trust for purchase of books on spiritualism, to be acces- 
 sible to seekers for truth; Hyde v. Hyde, 64 N. J. Eq. 9, 53 Atl. 593, holding be- 
 quests for educational purposes may be upheld as for valid charitable uses; 
 Clearspring Twp. v. Blough, 173 Ind. 26, 88 N. E. 511, as to what constitutes 
 valid charitable trust; Schools for Industrial Education v. Hoboken, 70 N. J. 
 Eq. 634, 62 Atl. 1, holding gift for free public library and for industrial educa- 
 tion department to be for a "charitable use;" MacKenzie v. Presbytery of Jersey 
 City, 67 N. J. Eq. 685, 3 L.R.A. (X.S.) 243, 61 Atl. 1027, sustaining validity 
 of trust for public worship and instruction according to the Presbyterian faith ; 
 Re Kramph, 26 Lane. L. Rev. 159, holding void, devise for school to teach doctrines, 
 of Swedenborg. 
 
 Cited in footnotes to Kelly v. Nichols, 19 L. R. A. 413, as to what consti- 
 tutes charitable use or trust; Crerar v. Williams, 21 L. R. A. 454, which holds 
 gift of free public library in great city charitable; People ex rel. Ellert v. Cogs- 
 well, 35 L. R. A. 269, which sustains trust for educating boys and girls not 
 confined to poor ones; Re John, 36 L. R. A. 242, which sustains bequest for 
 maintenance of free public schools; New England Theosophical Corp. v. Boston, 
 42 L. R. A. 281, which denies exemption from taxation of theosophical corpora- 
 tion. 
 
 Cited in notes (12 L.R.A. 415) on charitable uses and trusts; (49 Am. St. 
 Rep. 128) on application of rule against perpetuities to charitable uses; (63 
 Am. St. Rep. 268, 269) on what are charitable uses or trusts; (64 Am. St. 
 Rep. 770) on certainty and unity required in charitable trusts; (14 L.R.A. (N.S.) 
 73, 100) on enforcement of general bequest for charity or religion; (5 Eng. 
 Rul. Cas. 577, 578) on invalidity of charitable bequest for indebtedness. 
 
 Distinguished in Brown v. Condit, 70 N. J. Eq. 453, 61 Atl. 1055, holding 
 that charitable bequest lapsed where made to be dispensed by a specified 
 person, who died before testator, in his personal charitable work. 
 "Robbery." 
 
 Cited in Flaacke v. Stratford, 72 N. J. L. 490, 64 Atl. 146, 5 A. & E. Ann. Cas. 
 854, as illustrating the use of the word "robbery." 
 
 6 L. R. A. 515, MILLER v. McMECHEN, 33 W. Va. 197, 10 S. E. 378. 
 Publication of notice. 
 
 Cited in Sandusky v. Faris, 49 W. Va. 168, 38 S. E. 563, holding notice posted' 
 in fourth week though not twenty-eight days preceding sale, sufficient; Benwood 
 v. Wheeling R. Co. 53 W. Va. 471, 44 S. E. 271, holding statute requiring notice 
 to be published for 30 days complied with by publication in weekly newspaper. 
 Delivery of grift. 
 
 Cited in Goodrich v. Rutland Sav. Bank, 81 Vt. 150, 17 L.R.A. (X.S.) 183, 69^ 
 Atl. 651, holding delivery of deposit book sufficient to pass title to savings ac- 
 count in bank. 
 
 Cited in footnotes to Williamson v. Johnson, 9 L. R. A. 277, which holds gift 
 to enable fiancee to pay wedding expenses, conditional on marriage ; Gammon 
 Theological Seminary v. Robbins, 12 L. R. A. 506, which holds instrument de- 
 claring that holder gives note which he retains, insufficient as gift; Porter v_ 
 
6 L.R.A. 515] L. R. A. CASES AS AUTHORITIES. 1120 
 
 Woodhouse, 13 L. R. A. 64, which holds warranty deeds not delivered by donor 
 giving to third person. 
 
 Cited in note (12 Eng. Rul. Cas. 441) on necessity of delivering gift intervivos. 
 
 L. R. A. 520, KOHL v. LILIENTHAL, 81 Cal. 378, 22 Pac. 689, 20 Pac. 401. 
 Distribution or transfer of corporate assets. 
 
 Cited in Schaake v. Eagle Automatic Can Co. 135 Cal. 484, 63 Pac. 1025, hold- 
 ing transfer of property of one corporation to another for stock of latter, at- 
 tempted distribution of assets; Hunt v. Davis, 135 Cal. 34, 66 Pac. 957, sustain- 
 ing right of one party to agreement to form corporation, to prevent other 
 party from disposing of assets; Jameson v. Hartford F. Ins. Co. 14 App. Div. 
 397, 44 N. Y. Supp. 15 (dissenting opinion), majority upholding reinsurance 
 although effect was to suspend business of reinsuring company; Vercoutere v. 
 Golden State Land Co. 116 Cal. 415, 48 Pac. 375, holding invalid, a by-law per- 
 mitting stockholder to withdraw from corporation and have paid to him his 
 share of the corporate capital ; Tapscott v. Mexican Colorado River Land Co. 
 153 Cal. 668, 96 Pac. 271, holding that stockholder cannot maintain suit for 
 his proportionate share of the capital of the corporation; O'Dea v. Hollywood 
 Cemetery Asso. 154 Cal. 68, 97 Pac. 1, on directors of corporation having no 
 authority to distribute the corporate capital among the stockholders; Night- 
 ingale v. Milwaukee Furniture Co. 71 Fed. 240, on method of dissolving corpo- 
 ration prescribed by statute, being exclusive. 
 
 Cited in notes (2 L.R.A. (N.S.) 495) on power of majority stockholders to 
 dissolve corporation; (57 Am. St. Rep. 71) on what is a withdrawal of corpo- 
 rate assets; (89 Am. St. Rep. 621) on effect of consolidation of corporations; 
 {103 Am. St. Rep. 571) on distribution of proceeds of sale of corporate assets. 
 
 Distinguished in Burne v. Lee, 156 Cal. 228, 104 Pac. 438, holding that own- 
 ers of corporate stock may enter into an agreement for the sale of the entire 
 property of the corporation. 
 Interest of stockholders. 
 
 Cited in Richter v. Henningsan, 110 Cal. 534, 42 Pac. 1077, holdig stockhold- 
 ers of corporation operating distillery jointly and severally liable for internal 
 revenue taxes: Turner v. Fidelity Loan Concern, 2 Cal. App. 131, 83 Pac. 62, 
 on authority of directors of corporation, who are also the sole stockholders, to 
 issue stock. 
 
 6 L. R. A. 524, STATE INS. CO. v. SCHRECK, 27 Neb. 527, 20 Am. St. Rep. 
 
 696, 43 N. W. 340. 
 I. <>s* on divisible policy. 
 
 Cited in German Ins. Co. v. York, 48 Kan. 493, 30 Am. St. Rep. 313, 29 Pac. 
 586, holding chattel mortgage on personal property not invalidate part of pol- 
 icy covering dwelling; German Ins. Co. v. Fairbank, 32 Xeb. 753, 29 Am. St. 
 Rep. 459, 49 N. W. 711, holding execution of mortgage on land does not affect 
 part of policy covering cow; Johansen v. Home F. Ins. Co. ~i4 Xeb. r>.~>0. 74 X. 
 W. 866, holding policy classifying property insured and limiting amount of in- 
 surance on each class, divisible; German Ins. Co. v. Fairbank, 32 Xeb. 754, 29 
 Am. St. Rep. 459, 49 X. W. 711, holding execution of mortgage contrary to pol- 
 icy also covering personal property, no bar to recovery for death of cow; Phenix 
 Ins. Co. v. Grimes, 33 Neb. 348, 50 X*. \V. 168, holding that conveyance of farm 
 after insurance, does not work forfeiture of separable policy on colt ; Omaha F. 
 Ins. Co. v. Dierks, 43 Neb. 480. 61 X. W. 740. sustaining right to recovery for 
 personal property encumbered subsequent to policy, but released prior to loss; 
 Home F. Ins. Co. v. Bernstein, 55 Xeb. 264, 75 N. W. 839, holding that chattel 
 
1121 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 524 
 
 mortgage on articles in one class of property in divisible contract, affords de- 
 fense to action on policy; Georgia Home Ins. Co. v. McKinley, 14 Tex. Civ. 11, 
 37 S. W. 606, holding policy on building and contents, divisible; Trabue v. Dwell- 
 ing House Ins. Co. 121 Mo. 86, 23 L. R. A. 722, 42 Am. St. Rep. 523, 25 S. W. 
 848, holding word '"entire" in divisible policy does not forfeit policy on class 
 of property on which no breach of condition; Southern F. Ins. Co. v. Knight, 111 
 Ga. 634, 52 L. R. A. 74, 78 Am. St. Rep. 216, 36 S. E. 821, holding gross pre- 
 mium policy on classified risks voided by breach of single condition relating to 
 but one class; McQueeny v. Phoenix Ins. Co. 52 Ark. 261, 5 L. R. A. 746, 20 Am. 
 St. Rep. 179, 12 S. W. 498, holding policy on two houses, one of which became 
 vacant contrary to its provisions, voided policy; Miller v. Delaware Ins. Co. 
 14 Okla. 86, 65 L.R.A. 176, 75 Pac. 1121, 2 A. & E. Ann. Cas. 17, holding that 
 where policy covers different classes of property in separate items, recovery may 
 be had on one or more of them though others may be void for breach of some 
 condition; Johnston v. Phelps County Farmers' Mut. Ins. Co. 73 Xeb. 53, 102 
 X. W. 72, holding that blanket policy continues on the class of property in- 
 sured though the specific articles are replaced by others of the same kind. 
 
 Cited in footnote to Coleman v. New Orleans Ins. Co. 16 L. R. A. 174, which 
 holds policy for separate amounts on storehouse and goods severably. 
 
 Cited in notes (8 L. R. A. 834) on entire and severable contracts of fire in- 
 surance; (19 L. R. A. 216) on severability of insurance in same policy. 
 
 Distinguished Goorberg v. Western Assur. Co. 150 Cal. 514, 10 L.R.A. (X.S. ) 
 878. 119 Am. St. Rep. 246, 89 Pac. 130, 11 A. & E. Ann. Cas. 801, holding that 
 question whether policy is divisible depends upon the nature of the risk and the 
 intention of the parties . 
 
 Forfeiture for breach of condition. 
 
 Cited in Connecticut F. Ins. Co. v. Jeary, 60 Xeb. 346, 51 L. R. A. 708, 83 N 
 \V. 78. holding that forfeiture will not be declared for breach of "iron safe 
 clause" unless all conditions broken; Liverpool & L. & G. Ins. Co. v. Tillis, 110 
 Ala. 210, 17 So. 672, refusing under pleadings to consider breach of "iron safe 
 clause;" Ohio Farmers' Ins. Co. v. Burget, 65 Ohio St. 123, 55 L. R. A. 827, 87 
 Am. St. Rep. 596, 61 N. E. 712, holding consent of company to removal of 
 property to place of loss, election to accept hazards; German Mut. F. Ins. Co. 
 v. Fox, 4 Xeb. (Unof.) 836, 63 LJR.A. 336, 96 N. W. 652, permitting recovery of 
 insurance on property conveyed in violation of policy, but reconveyed before loss; 
 Home F. Ins. Co. v. Johansen. 59 Xeb. 352. 80 X. W. 1047, holding burden of show- 
 ing discharge of lien upon insured; Benham v. Farmers' Mut. F. Ins. Co. 165 
 Mich 419, L.R.A. (X.S.) , 131 X. W. 87, Ann. Cas. 1912 C, 983, to the 
 point that incumbrance placed on part of property insured under policy issued 
 in consideration of gross premium in violation of terms of policy does not render 
 policy void as to that class of property not covered by mortgage; German Mut. 
 F. Ins. Co. v. Fox, 4 Xeb. (Unof.) 836, 63 L.R.A. 336, 96 X. W. 652, holding that 
 conveyance of insured property contrary to restriction in policy, does not avoid 
 it where the property is reconveyed prior to loss; Port Blakely Mill Co. v. 
 Springfield F. & M. Ins. Co. 51) Wash. 526, 28 L.R.A.(N.S.) 605, 140 Am. St. 
 Rep. 863, 110 Pac. 36, holding that policy of insurance providing for sprinkler 
 system cannot be avoided because of temporary suspension for repairs where it 
 was in working order at time of fire. 
 
 Cited in footnote to Fitzgibbons v. Merchants' & B. Mut. F. Ins. Co. 70 L.R.A. 
 243, which holds that institution of foreclosure proceedings against real estate 
 only will not work forfeiture of policy covering real and personal property and 
 L.R.A. Au. Vol. I. 71. 
 
6 L.R.A. 524] L. R. A. CASES AS AUTHORITIES. 1122 
 
 providing that it shall be forfeited by institution of foreclosure proceeding* 
 against the "property insured." 
 
 Cited in notes (11 L.R.A. 293) on conditions in policy transfer and alienation 
 of interest; (10 L.R.A. (N.S.) 739) on effect of temporary condition ceasing be- 
 fore loss, under general provision against increase of risk, or specific provision 
 against certain conditions; (80 Am. St. Rep. 305) on revival of forfeited in- 
 surance by discontinuance of cause of forfeiture before loss. 
 Effect of variance In policy. 
 
 Cited in Phenix Ins. Co. v. Gebhart, 32 Neb. 146, 49 N. W. 333, holding va- 
 riance in description of land on which insured property situated, immaterial; 
 Omaha F. Ins. Co. v. Dufek, 44 Neb. 243, 62 N. W. 465, holding misdescription of 
 township in which personal property stored, not fatal variance; Kansas Farmers' 
 F. Ins. Co. v. Saindon, 52 Kan. 493, 39 Am. St. Rep. 356, 35 Pac. 15, holding 
 misdescription of land on which insured dwelling stands, not affect risk; Ger- 
 man Ins. Co. v. Miller, 39 111. App. 637, holding reformation of misdescription 
 of land in policy not necessary when agent knew facts at time of issuance; Sauer- 
 bier v. Union Cent. L. Ins. Co. 39 111. App. 629, holding that beneficiary, if 
 identified need not be named in policy; ^Etna Ins. Co. v. Brannon, 99 Tex. 396, 2 
 L.R.A. (N.S.) 551, 89 S. W. 1057, 13 A. & E. Ann. Cas. 1020, on right to recover 
 on policy containing misdescription as to location of property insured. 
 In other cases. 
 
 Cited in Rainsford v. Massengale, 5 Wyo. 9, 35 Pac. 774, holding name of firm 
 pleaded as Adams, Choate, & Co., and proof of representations by one acting for 
 Rainsford, Adams, Choate, & Co., immaterial. 
 
 1 'i>rni of "|iil i-> . 
 
 Cited in Sproul v. Western Assur. Co. 33 Or. 106, 54 Pac. 180, holding par- 
 ties in negotiation for policy, presumed to have in contemplation ordinary 
 form of policy for kind of property insured. 
 Sufficiency of notice of loss. 
 
 Cited in Home F. Ins. Co. v. Hammang, 44 Neb. 574, 62 N. W. 883, holding 
 insurance company waived sufficiency of proofs of loss by sending adjuster who 
 took steps to ascertain loss; Phenix Ins. Co. v. Rad Bila Hora Lodge, 41 Neb. 
 28, 59 N. W. 752, holding notice given by authority of insured, in response to 
 which adjuster appeared, sufficient; Omaha F. Ins. Co. v. Dierks, 43 Neb. 482, 61 
 N. W. 740, holding that insured need not notify company of loss of which it had 
 knowledge through its agents. 
 
 6 L. R. A. 529, REESE v. PENNSYLVANIA R. CO. 131 Pa. 422, 17 Am. St. Rep. 
 
 818, 19 Atl. 72. 
 Reasonable regulations as to cash fares. 
 
 Cited in Zagelmeyer v. Cincinnati, S. & M. R. Co. 102 Mich. 216, 47 Am. St. 
 Rep. 514, 60 N. W. 436, holding penalty of additional charge over legal rate, 
 when fare collected on train, unreasonable; Kennedy v. Birmingham R. Light 
 & P. Co. 138 Ala. 230, 35 So. 108, holding regulation requiring passenger with- 
 out ticket to pay excess fare unreasonable as to passengers entering car 1,000 feet 
 from ticket-office; Robb v. Pittsburg, C. C. & St. L. R. Co. 14 Pa. Super. Ct. 
 290, sustaining regulation requiring holder of mileage book to exchange coupons 
 for ticket; Weber v. Southern R. Co. 65 S. C. 374, 43 S. E. 888 (dissenting 
 opinion), majority holding regulation requiring passenger without ticket to pay 
 excess fare, for which rebate check is issued, unlawful; Knoxville Traction Co. v. 
 Wilkerson, 117 Tenn. 485, 9 L.R.A. (N.S.) 580, 99 S. W. 992, 10 A. & E. Ann. Cas. 
 641, holding rule requiring passenger on street car to tender bill or coin in 
 
1123 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 531 
 
 denomination of five dollars or less in payment of fare reasonable; Martin v. 
 Rhode Island Co. 32 R. I. 166, 32 L.R.A. (N.S.) 697, 78 Atl. 548, Ann Cas. 1912 C, 
 1283, holding that common carrier may establish reasonable rules regulating 
 time and place and mode for payment of its charges. 
 
 Cited in footnote to United Railways & Electric Co. v. Hardesty, 57 L. R. 
 A. 276, which denies carrier's duty to accept coupon detached from commutation 
 book. 
 
 Cited in notes (20 L.R.A. 483, 484) on validity of extra charge for passenger 
 fare when paid on train; (29 L.R.A. (N.S.) 299) on right of carrier to refuse to 
 accept nonticket holders as passengers. 
 
 Disapproved in Fulmer v. Southern R. Co. 67 S. C. 269, 45 S. E. 196, holding 
 that railroad companies have no right to collect 25 cents over regular rate from 
 passengers without tickets even though rebate checks be given for the excess. 
 
 6 L. R. A. 531, HOME FOR AGED PROTESTANT WOMEN v. WILKINSBURG, 
 
 131 Pa. 109, 18 Atl. 937. 
 Assessment for local improvements or (or side-walks. 
 
 Cited in Mt. Pleasant v. Baltimore & O. R. Co. 138 Pa. 372, 11 L. R. A. 521, 
 21 Pittsb. L. J. N. S. 226, 27 W. N. C. 179, 20 Atl. 1052, holding railroad passen- 
 ger or freight depot or ground used for lumber yard, subject to municipal lien for 
 paving foot walk; Philadelphia v. Pennsylvania Hospital, 143 Pa. 374, 28 W. N. 
 C. 434, 22 Atl. 744, holding hospital liable to assessment for curbing street; 
 Philadelphia v. Pennsylvania Hospital, 143 Pa. 372, 22 Atl. 744, to point out dis- 
 tinction between right of local taxation and authority vested in municipal cor- 
 porations to require property owners to curb, pave, and keep sidewalks in repair 
 in front of their premises; Philadelphia v. Girard, 16 Montg. Co. L. Rep. 136, 23 
 Pa. Co. Ct. 672, 9 Pa. Dist. R. 273, holding real estate held in trust for charities 
 liable for paving assessment; Harrisburg City v. St. Paul's Episcopal Church, 2 
 Lack. Legal News, 330, 18 Pa. Co. Ct. 113, 5 Pa. Dist. R. 351, holding church 
 property liable for municipal sewer assessment; Philadelphia v. Weaver, 14 Pa. 
 Super. Ct. 298, holding sidewalk assessments not within rule limiting special as- 
 sessment to special benefit; Greensburg v. Laird, 8 Pa. Co. Ct. 610, holding paving 
 assessment not within charter provision prohibiting taxation in excess of cer- 
 tain rate unless voted by electors; Pittsburg v. Biggert, 23 Pa. Super. Ct. 544; 
 and Pittsburg use of Flanagan v. Daly, 5 Pa. Super. Ct. 532, 28 Pittsb. L. J. 
 N. S. 116, 41 W. N. C. 238, holding city may maintain assumpsit for cost against 
 lot owner failing to build sidewalk required by ordinance; Mt. Joy v. Harris- 
 burg, P. Mt. J. & L. R. Co. 8 Northampton Co. Rep. 249, 19 Lane. L. Rev. 218, 
 holding assumpsit maintainable against railroad for cost of pavement in front 
 of its lands; Chester v. First Nat. Bank, 7 Del. Co. Rep. 360, 9 Pa. Super. Ct. 
 520, 44 W. N. C. 181, holding property owner liable to municipality for dam- 
 ages recovered for defect in sidewalk; Ladies' United Aid Soc. v. Philadelphia, 
 14 Pa. Co. Ct. 216, 3 Pa. Dist. R. 141, 34 W. N. C. 260, holding land cut off by 
 street from main lot of charitable institution not taxable for general purposes; 
 Meaner v. Goldsmith, 216 Pa. 493, 10 L.R.A.(X.S.) 348, 65 Atl. 1084, holding 
 that cost of laying sidewalk along property is imposed as a personal obligation 
 upon the owner and may be enforced against him; Mt. Joy v. Harrisbnrg, P. 
 Mt. J. & L. R. Co. 11 Pa. Dist. R. 766, holding that railroad company may be 
 compelled to lay sidewalk along its lands lying between its tracks and a street; 
 Philadelphia v. Steward, 31 Pa. Super. Ct. 74, on cost of repairing defective walk 
 as distinguished from assessment for local improvement. 
 
 Cited in notes (35 L.R.A. 36) that exemption from taxation does not exempt 
 
6 L.R.A. 531] L. R. A. CASES AS AUTHORITIES. 1124 
 
 from assessment for local improvement; (3 L.R.A. (X.S. ) 837) on special assess- 
 ment as tax. 
 
 6 L. R. A. 533, FARLEY v. GEISHEKER, 78 Iowa, 453, 43 N. W. 279. 
 Statutes applicable to pending actions. 
 
 Cited in State v. Borland, 106 Iowa, 42, 75 X. W. 654, holding act allowing cost 
 of printing to successful defendant on appeal in criminal case, applicable to 
 pending appeals. 
 Appellate court jurisdiction. 
 
 Cited in Geyer v. Douglass, 85 Iowa, 96, 52 N. W. Ill, jurisdiction of appellate 
 court presumed unless otherwise affirmatively appearing; Farmers' Loan & T. 
 Co. v. Newton, 97 Iowa, 505, 66 N. W. 784, allowing appeal from cancelation 
 of assessment under ruling giving jurisdiction over all judgments and decisions 
 of courts of record; Comstock v. Eagle Grove, 133 Iowa, 592, 111 N. W. 51. 
 on application of rule forbidding appeal, where amount in controversy is less 
 than $100 to action for cancelation of taxes and injunction. 
 
 Cited in footnote to Cassard v. Tracy, 49 L. R. A. 272, which holds pending ap- 
 peals within provision in new constitution giving supreme court power to de- 
 termine questions of fact as well as of law. 
 
 6 L. R. A. 534, HOLMAN v. SCHOOL DIST. NO. 5, 77 Mich. 605, 43 N. W. 996. 
 Mandamus. 
 
 Cited in Pfeiffer v. Board of Education, 118 Mich. 581, 42 L. R. A. 543, 
 77 N. W. 250, Moore, J., dissenting, who holds mandamus appropriate remedy 
 to redress invasion of civil rights by reading extracts from Bible in public- 
 schools. 
 Regulation of conduct of pupils. 
 
 Cited in Board of Education v. Purse, 101 Ga. 443, 41 L. R. A. 608, 65 Am. 
 St. Rep. 327, 28 S. E. 896, holding that child may be suspended for misconduct 
 of parent in entering school room and using offensive language to teacher; State 
 ex rel. Dresser v. School Dist. No. 1, 135 Wis. 624, 16 L.R.A. (N.S.) 732, 128 
 Am. St. Rep. 1050, 116 N. W. 232, on school board as having no power to enforce 
 rule requiring pupils, under penalty of suspension, to pay fine or to pay for 
 damages to school property. 
 
 Cited in notes (41 L.R.A. 603) on suspension for failure to pay for injury 
 to school property; (65 Am. St. Rep. 335) on causes for which children may 
 be excluded from public schools. 
 
 6 L. R. A. 536, WINTER v. KANSAS CITY CABLE R. CO. 99 Mo. 509, 17 Am. 
 
 St. Rep. 591, 12 S. W. 652. 
 Duty of unit 111-111:1 ii. 
 
 Cited in La Pontney v. Shedden Cartage Co. 116 Mich. 515, 77 N. W. 712, 
 holding that motorman should have car under such control, as to avoid collision 
 with vehicles discernible ahead; San Antonio Street R. Co. v. Mechler, 87 Tex. 
 633, 30 S. W. 899, holding persons operating street cars must use ordinary care 
 to see that track is clear and to avoid collision; Southern Electric R. Co. v. 
 Hageman, 57 C. C. A. 356, 121 Fed. 270, holding that motorman must use same 
 care to avoid collisions as others using street; Degel v. St. Louis Transit Co. 
 101 Mo. App. 60, 74 S. W. 156, holding that street railroad must exercise rea- 
 sonable care to avoid colliding with vehicles; City R. Co. v. Thompson, 20 Tex. 
 Civ. App. 18, 47 S. W. 1038, holding that it is duty of motorman to look 
 ahead on track and on each side; Burnstein v. Cass Ave. & Fair Grounds R. Co. 
 
3125 L. R. A. CASES AS AUTHORITIES. [G L.R.A. 536 
 
 56 Mo. App. 53, approving instruction that it is duty of driver to stop car on 
 first appearance of danger and in time to prevent injury; Schmidt v. St. Louis 
 R. Co. 163 Mo. 654. 63 S. W. 834, holding that it is duty of gripman to keep 
 vigilant watch; West Chicago Street R. Co. v. Schwartz, 93 111. App. 400 (dis- 
 senting opinion), majority holding that motorman may assume one approaching 
 track will wait for car to pass; Ross v. Metropolitan Street R. Co. 113 Mo. App. 
 606, 88 S. W. 144, holding motorman not required to presume that approaching 
 pedestrian will not stop before crossing to avoid approaching car; Heinzle v. 
 Metropolitan Street R. Co. 182 Mo. 557, 81 S. W. 848, holding that what is ordi- 
 nary care required of street railway company in operating cars depends upon the 
 circumstances of the case. 
 
 Cited in notes (7 L. R. A. 819) on duty of gripman to see that track is clear; 
 (25 L.R.A. 663) on duty of street railroad employee to be watchful; (25 Am. St. 
 Rep. 481) on duties and obligations of street railway companies to exercise care 
 to avoid accidents; (49 Am. St. Rep. 408, 423, 431) on duty of motorman to 
 children. 
 Imputed n.-ii I iii.-iic.-. 
 
 Cited in Chicago G. W. R. Co. v. Kowalski, 34 C. C. A. 4, 92 Fed. 312; St. 
 Louis I. M. & S. R. Co. v. Rexroad, 59 Ark. 186, 26 S. W. 1037; Jeffersonville 
 v. McHenry, 22 Ind. App. 15, 53 N. E. 183; Brill v. Eddy, 115 Mo. 606, 22 S. W. 
 488; Profit v. Chicago & G. W. R. Co. 91 Mo. App. 376; Bottoms v. Seaboard 
 & R. R. Co. 114 N. C. 713, 25 L. R. A. 793, 41 Am. St. Rep. 799, 19 S. E. 
 730, holding negligence of parent not imputable to child in action by or on 
 behalf of latter: Warren v. Manchester Street R. Co. 70 N. H. 361, 47 Atl. 735, 
 holding negligence of parent not imputable to child in action by administrator; 
 Atlanta & C. Air-Line R. Co. v. Gravitt, 93 Ga. 379, 26 L. R. A. 557, 44 Am. 
 St. Rep. 145, 20 S. E. 550, holding that mother may recover for death of child 
 due to negligence of custodian not her representative or agent; Berry v. Lake 
 Erie & W. R. Co. 70 Fed. 683, holding negligence of parent not imputed to child 
 incapable of exercising care for its own safety; Czezewzka v. Benton-Bellefon- 
 taine R. Co. 121 Mo. 214, 25 S. W. 911, holding that negligence of parent will 
 not prevent recovery if driver might have avoided inflicting injury by exercise 
 or ordinary care; Xeff v. Cameron, 213 Mo. 362, 18 L.R.A. (X.S.) 325, 127 Am. St. 
 Rep. 606. Ill X. W. 1130. holding parents negligence not imputed to child. 
 
 Cited in notes (8 L. R. A. 495; 6 L. R. A. 546) that negligence of parent 
 not imputable to child: (21 L. R. A. 77, 81) contributory negligence of parent as 
 bar to action by child; (49 Am. St. Rep. 408) on same point; (110 Am. St. Rep. 
 281, 284) on imputed negligence. 
 Pedestrian's right to use street. 
 
 Cited in Cambeis v. Third Ave. R. Co. 1 Misc. 160, 20 N. Y. Supp. 633, hold- 
 ing that pedestrians have equal use of highway with street cars which only have 
 preference in the use of track; Henry v. Grand Ave. R. Co. 113 Mo. 536, 21 S. 
 \Y. 214, holding that pedestrians may cross street at any point if they exercise 
 due care and caution: Frank v. St. Louis Transit Co. 99 Mo. App. 334, 73 S. W. 
 239. sustaining instructions to effect that person crossing street car track must 
 use care proportioned to danger of surroundings; Goff v. St. Louis Transit Co. 
 109 Mo. 706, 9 L.R.A. (X.S.) 247, 98 S. VV . 49, holding that pedestrian exercising 
 due care and caution, has the right to walk upon any part of the street. 
 on t ri Im tory negrligrence of child. 
 
 Cited in Fry v. St. Louis Transit Co. Ill Mo. App. 334. 85 S. W. 960. holding 
 that where child nine years old was injured while attempting to cross in front 
 of approaching car. question of contributory negligence was for jury. 
 
 Cited in footnotes to Worthington v. Mencer, 17 L. R. A. 407, which holds con- 
 
6 L.R.A. 536] L. R. A. CASES AS AUTHORITIES. 1126 
 
 tributory negligence not chargeable to one unable to apprehend danger; Graney 
 v. St. Louis, I. M. & S. R. Co. 38 L. R. A. 633, which denies negligence per se 
 of twelve year old boy in standing so near passing train as to be drawn under 
 by current of air; Gleason v. Smith, 55 L. R. A. 622, which denies liability for 
 injury by collision with team to twelve year old boy using street as playground. 
 
 Cited in notes (8 L. R. A. 844; 17 L. R. A. 78) infant not chargeable with 
 contributory negligence; (10 L. R. A. 655; 12 L. R. A. 217) contributory negli- 
 gence of child; (26 Am. St. Rep. 866) on contributory negligence of infants. 
 Objection first made on appeal. 
 
 Cited in Pope v. Kansas City Cable R. Co. 99 Mo. 405, 12 S. W. 891, holding 
 that every reasonable inference will be made in favor of sufficiency of evidence 
 first objected to on appeal. 
 
 6 L. R. A. 541, PEARCE v. DENVER, 13 Colo. 383, 22 Pac. 774. 
 Boundary on stream. 
 
 Cited in Hanlon v. Hobson, 24 Colo. 288, 42 L. R. A. 512, 51 Pac. 433, holding 
 that grant bounded by non-navigable stream extends to thread of stream. 
 
 Cited in note (42 L. R. A. 508) on boundary on river where rights in river 
 are in third person. 
 Separating 1 riparian rights from upland. 
 
 Cited in note (40 L. R. A. 394) on method of separating riparian rights from 
 upland. 
 Computation of time. 
 
 Cited in footnotes to East Tennessee, V. & G. R. Co. v. Atlanta & F. R. Co. 
 15 L. R. A. 109, which authorizes taking fractions of day into consideration in 
 determining priority of appointment of receivers ; People use of Chaddock v. 
 Barry, 18 L. R. A. 337, which requires exclusion of day of service and return 
 day in computing time for appearance; McGinn v. State, 30 L. R. A. 450, which 
 defines calendar month as period terminating with day of succeeding month 
 corresponding to day of beginning less one. 
 
 Cited in notes (11 L. R. A. 724) computation of time; (11 L. R. A. 701) 
 day upon which an act done excluded; (78 Am. St. Rep. 381) on computation of 
 time. 
 
 6 L. R. A. 545, WYMORE v. MAHASKA COUNTY, 78 Iowa, 396, 16 Am. St. 
 
 Rep. 449, 43 N. W. 264. 
 Imputed negligence. 
 
 Cited in Ives v. Welden, 114 Iowa, 478, 54 L. R. A. 855, 86 Am. St. Rep. 379, 
 87 N. W. 408, holding parent's knowledge that jug without label contains gaso- 
 line from explosion of which child burned, not defeat recovery by her; Fink v. 
 Des Moines, 115 Iowa, 642, 89 N. W. 28, holding that negligence of parents can- 
 not be imputed to child of tender years injured "while playing on coal chute; 
 Warren v. Manchester Street R. Co. 70 N. H. 361, 47 Atl. 735, holding that ad- 
 ministrator may recover for child's death notwithstanding negligence of father 
 contributed; Evansville v. Senhenn, 151 Ind. 57, 41 L. R. A. 733, 68 Am. St. 
 Rep. 218, 47 N. E. 634; Jeffersonville v. McHenry, 22 Ind. App. 15, 53 N. E. 
 183; Bottoms v. Seaboard & R. R. Co. 114 N. C. 713, 25 L. R. A. 792, 41 Am. 
 St. Rep. 799, 19 S. E. 730 holding negligence of parent not imputable to child 
 to defeat his recovery for injury; Norfolk & W. R. Co. v. Groseclose, 88 Va. 
 270, 29 Am. St. Rep. 718, 13 S. E. 454, holding negligence of parent cannot be 
 imputed to child of tender age; St. Louis, I. M. & S. R. Co. v. Rexford, 59 Ark. 
 186, 26 S. W. 1037, holding that negligence of parent cannot be attributed to 
 child in her action to recover for injuries; Kowalski v. Chicago G. W. R. Co. 84 
 
1127 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 545 
 
 Fed. 587, holding that negligence of parent cannot be imputed to child of ten- 
 der years permitted to travel street unattended; Berry v. Lake Erie & W. R. 
 Co. 70 Fed. 683, and Chicago G. W. R. Co. v. Kowalski, 34 C. C. A. 4, 92 Fed. 
 312, holding that parent's negligence cannot be imputed to child in its action 
 for injuries; Bamberger v. Citizens' Street R. Co. 95 Tenn. 28, 28 L. R. A. 490, 
 49 Am. St. Rep. 909, 31 S. W. 163, holding that negligence of father cannot be 
 imputed to child; Atlanta & C. Air-Line R. Co. v. Gravitt, 93 Ga. 379, 26 L. R. 
 A. 557, % 44 Am. St. Rep. 145, 20 S. E. 553, holding negligence of father not im- 
 putable to mother suing for child's death under statute; Miles v. St. Louis. I. M. 
 & S. R. Co. 90 Ark. 493, 119 S. W. 837, holding that parents negligence will not be 
 imputed to child in action for benefit of the child's estate; Scherer v. Schlaberg, 18 
 N. D. 438, 24 L.R.A. (N.S.) 529, 122 N. W. 1000 (dissenting opinion), on same 
 point; McBride v. Des Moines, 134 Iowa, 407, 109 N. W. 618, holding that neg- 
 ligence of driver of hose cart cannot be imputed to fireman riding thereon. 
 
 Cited in footnote to Casey v. Smith, 9 L. R. A. 259, which holds negligence 
 of custodian imputable to young child. 
 
 Cited in notes (8 L. R. A. 844) on imputing another's negligence to child; (21 
 L. R. A. 80) on contributory negligence of parent or custodian as bar of action by 
 child for negligent injuries; (8 L.R.A. 495) on doctrine of imputed negligence: 
 (8 L.R.A. (N.S.) 665, 670) on imputed negligence of driver to passenger; (18 
 L.R.A. (N.S.) 331, 332) on contributory negligence of parent as bar to action by 
 parent or administrator for death of child non sui juris; (32 L.R.A. (N.S.) 412) 
 on imputing negligence of child's custodian to parent in action for death or 
 injury; (49 Am. St. Rep. 408; 110 Am. St. Rep. 283) on imputed negligence. 
 
 Distinguished in Tucker v. Draper, 62 Neb. 76, 54 L.R.A. 327, 86 N. W. 917; 
 O'Shea v. Lehigh Valley R. Co. 79 App. Div. 259, 79 N. Y. Supp. 890; Richmond, 
 F. & P. R. Co. v. Martin, 102 Va. 207, 45 S. E. 894, holding that negligence of 
 father will defeat his right to recover for the death of infant son. 
 Contributory negligence affecting recovery. 
 
 Cited in Bradshaw v. Frazier, 113 Iowa, 583, 55 L. R. A. 261, 86 Am. St. Rep. 
 394, 85 N. W. 752, holding contributory negligence of parents in caring for intes- 
 tate, whose death resulted from exposure after improper eviction while ill, no de- 
 fense; Lewin v. Lehigh Valley R. Co. 52 App. Div. 77, 65 N. Y. Supp. 49, holding 
 that father can recover for death of infant child contributed to by his own negli- 
 gence though he is sole beneficiary; Ploof v. Burlington Traction Co. 70 Vt. 517, 
 43 L. R. A. 112, 41 Atl. 1017, holding negligence of parents in permitting boy to 
 go on street no bar to action against street car company for negligent injury; 
 Gunn v. Ohio River R, Co. 42 W. Va. 686, 36 L. R. A. 580, 26 S. E. 546, holding 
 facts as to imputed negligence of father not sufficient to bar recovery for death 
 of children; Bamberger v. Citizens' Street R. Co. 95 Tenn. 31, 28 L. R. A. 491, 49 
 Am. St. Rep. 909, 31 S. W. 163, holding that father as sole beneficiary cannot 
 bring action as administrator for injury to child to which his negligence con- 
 tributed. 
 
 Cited in footnote to Tucker v. Draper, 54 L. R. A. 321, which holds father's 
 contributory negligence prevents action by him, as administrator, for child's 
 death. 
 
 Cited in notes (6 L. R, A. 538) as to when infant chargeable with negligence: 
 (12 L. R. A. 217) on contributory negligence of infant of tender years; (17 L. R, 
 A. 78) on contributory negligence of child as bar to recovery. 
 
 Distinguished in Christe v. Chicago, R. I. & P. R. Co. 104 Iowa, 712, 74 N. W. 
 697, holding that settlement and release by parents of deceased, precludes action 
 by administrator; Wolf v. Lake Erie & W. R. Co. 55 Ohio St. 532, 36 L. R, A. 815, 
 
6 L.R.A. 545] L. R. A. CASES AS AUTHORITIES. 1128 
 
 45 X. E. 708, holding defense of contributory negligence of beneficiary available as 
 to him, but not as to other beneficiaries not negligent. 
 
 Disapproved in Davis v. Seaboard Air Line R. Co. 136 N. C. 120, 48 S. E. 591, 
 1 A. & E. Ann. Cas. 214, holding contributory negligence of father available as 
 defense in action to recover for alleged wrongful death of infant son. 
 
 6 L. R. A. 548, YOUNGS v. YOUNGS, 130 111. 230 ; 17 Am. St. Rep. 313, 22 N, 
 
 E. 806. 
 Divorce For "habitual intoxication." 
 
 Cited in Ring v. Ring, 112 Ga. 858, 38 S. E. 330, holding excessive and habitual 
 use of opiates not habitual intoxication; Union League v. Ransley, 35 Pa. Co. Ct. 
 279. 17 Pa. Dist. R. 603, on construction of word "drunkenness" as used in divorce 
 statute. 
 
 Cited in footnote to Ring v. Ring, 62 L.R.A. 878, which holds habitual and in- 
 temperate use of morphine not cruel treatment entitling other spouse to divorce. 
 
 Cited in notes (34 L. R. A. 450) on what constitutes drunkenness; (39 L. R. A. 
 264) on morphine habit as ground for divorce; (19 Am. St. Rep. 433) on grounds 
 for divorce. 
 For cruelty. 
 
 Cited in Coles v. Coles, 130 Ky. 351, 113 S. W. 417, on excessive sexual inter- 
 course as cruelty; Garrett v. Garrett, 252 111. 327, 96 N. E. 882, holding that acts 
 of violence on part of wife in resisting ill-treatment by husband are not defense 
 in action for divorce brought by wife; Lorenson v. Lorenson, 155 111. App. 39, as 
 to what constitutes extreme cruelty under statute regulating actions for di- 
 vorce and separation. 
 
 Cited in footnote to Maddox v. Maddox, 52 L. R. A. 628, which denies right to 
 divorce for cruelty from failure to provide suitable dwelling house, clothing, and 
 food. 
 
 Cited in notes (34 L.R.A. 165) on insanity as affecting cruelty; (65 Am. St. 
 Rep. 74, 79, 82) on cruelty as ground for divorce. 
 Condonation. 
 
 Cited in Nullmeyer v. Nullmeyer, 49 111. App. 577, holding that acts of cruelty 
 may be condoned; Abbott v. Abbott, 192 111. 442, 61 N. E. 350, holding cruelty 
 condoned w T here wife continued to live with the husband for three years after 
 last act of violence. 
 
 Cited in note (84 Am. St. Rep. 137) on loss of right to divorce after it is 
 perfected. 
 
 6 L. R. A. 551, HATHAWAY v. LYNN, 75 Wis. 186, 43 N. W. 956. 
 Abandonment of contract; consideration. 
 
 Cited in Dyer v. Middle Kittitas Irrig. Dist. 25 Wash. 94, 64 Pac. 1009, holding 
 that agreement for abandonment of contract requires no independent considera- 
 tion for its support. 
 
 Cited in note (13 L. R. A. 633) on parol evidence to show waiver. 
 Penalty or liquidated damages. 
 
 Cited in Boulware v. Crohn, 122 Mo. App. 585, 99 S. W. 796, holding provision 
 in contract for sale of land which binds seller to keep in repair, to keep insured. 
 to furnish abstract and to put deed in escrow, with forfeiture of $500 for breach 
 of either, to be penalty; Werner v. Finley, 144 Mo. App. 561, 129 S. W. 73. 
 holding that liquidated damages cannot be recovered unless there is substantial 
 breach of contract resulting in more than nominal damages: Brown v. Edsall, 23 
 S. D. 616. 122 X. W. 658, holding that there must be substantial breach of con- 
 
1129 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 353 
 
 tract to refrain from carrying on certain business by actually engaging in such 
 business before action to recover for forfeiture provided can be maintained. 
 
 Cited in footnotes to Chicago-House Wrecking Co. v. United States, 53 L. R. A. 
 122, which holds stipulation for certain sum as damages for failure to remove 
 building by certain time, penalty, when actual damages easily assessable; Meyer 
 v. Estes, 32 L. R. A. 283, which holds penalty provided for by contract that 
 purchaser wrongfully using electrotype plates shall pay fine of ten times their 
 price; Krutz v. Robbins, 28 L. R. A. 676, which holds agreement for greater rate 
 of interest on default in paying principal, interest, etc., a penalty; State v. Lar- 
 son, 54 L. R. A. 487, which holds amount of liquor license bond, a penalty; Kil- 
 bourne v. Burt & B. Lumber Co. 55 L. R. A. 275, which holds provision for retain- 
 ing 15 cents per hundred feet for logs not delivered by specified date, one for liqui- 
 dated damages; Salem v. Anson, 56 L. R. A. 169. which holds stipulated amount 
 to be paid to city for failure to complete electric light plant within specified time, 
 liquidated damages; Pierce v. Whittlesey, 7 L. R. A. 286, which holds agreed for- 
 feiture of two weeks wages on leaving without notice, defense without showing 
 special damage. 
 
 Cited in notes (10 L. R. A. 829) on when forfeiture construed as liquidated 
 damages; (11 L. R. A. 681) on damages for breach of contract; (18 L. R. A. 386) 
 on measure of damages for breach of implied warranty. 
 
 Disapproved in Sanford v. First Nat. Bank, 94 Iowa, 684, 63 N. W. 459, 
 holding that in action to recover liquidated damages no proof of actual damages 
 is necessary. 
 
 6 L. R. A. 553, BEXXETT v. BEXXETT, 116 N. Y. 584, 23 N. E. 17. 
 Alienation of affections Wife'g right to maintain action. 
 
 Cited in Deitzman v. Mullin, 108 Ky. 614, 50 L. R. A. 810, footnote p. 808, 94 
 Am. St. Rep. 390, 57 S. W. 247 ; Humphrey v. Pope, 122 Cal. 258, 54 Pac. 847 ; 
 Haynes v. Xowlin, 129 Ind. 583, 14 L. R. A. 790, 28 Am. St. Rep. 213, 29 X. E. 
 389; Price v. Price, 91 Iowa, 698, 29 L. R. A. 151, 51 Am. St. Rep. 360, 60 X. W. 
 202; Wolf v. Frank, 92 Md. 140, 52 L. R. A. 104, footnote p. 102, 48 Atl. 132; 
 Warren v. Warren, 89 Mich. 125, 14 L. R. A. 547, footnote p. 545, 50 X. W. 
 842; Lockwood v. Lockwood, 67 Minn. 482, 70 N. W. 784; Clow v. Chapman, 125 
 Mo. 104, 26 L. R. A. 413, footnote p. 412, 46 Am. St. Rep. 468, 28 So. 328; Man- 
 warran v. Mason, 79 Hun, 593, 29 X. Y. Supp. 915; Van Olinda v. Hall, 88 Hun, 
 453, 34 X. Y. Supp. 777; Romaine v. Decker, 11 App. Div. 22, 43 X. Y. Supp. 79; 
 Kuhn v. Hemmann, 43 App. Div. 110, 59 X. Y. Supp. 341; Beach v. Brown, 20 
 Wash. 269, 43 L. R. A. 116. 72 Am. St. Rep. 98, 55 Pac. 46; Gernerd v. Gernerd, 
 185 Pa. 236, 40 L. R. A. 550, 64 Am. St. Rep. 646, 42 W. X. C. 51, 39 Atl. 884: 
 Holmes v. Holmes, 133 Ind. 388, 32 X. E. 932, holding wife entitled to maintain 
 action in own name for enticing away husband, alienating affections, and depriv- 
 ing her of his society; Williams v. Williams, 20 Colo. 55, 37 Pac. 614; Hodgkin- 
 son v. Hodgkinson, 43 Xeb. 271, 27 L. R. A. 121, footnote p. 120, 47 Am. St. Rep. 
 759, 61 X. W. 577; Gernerd v. Gernerd, 185 Pa. 236, 40 L. R. A. 550, 64 Am. St. 
 Rep. 646, 39 Atl. 884, holding that wife may maintain action against one wrong- 
 fully procuring husband to abandon her, or send her away; Postlewaite v. Postle- 
 waite, 1 Ind. App. 478, 28 X. E. 99, holding that divorced woman may maintain 
 ac'ion for alienation of affections of former husband; Weston v. Weston, 86 App. 
 Div. 162, 83 X. Y. Supp. 528, construing complaint alleging acquisition of im- 
 proper influence over and intercourse with plaintiff's wife as stating cause of ac- 
 tion for alienating affections; Servis v. S;>rvis. 172 X. V. 444. 65 X. E. 270, by 
 Bartlett. J.. dissenting, as to wife's right to maintain action for alienation of hus- 
 band's affections: Dodge v. Rush, 28 App. D. C. 152, 8 A. & E. Ann. Cas. 671; 
 
6 L.R.A. 553] L. R. A. CASES AS AUTHORITIES. 1130 
 
 Smith v. Gillapp, 123 111. App. 123; King v. Hanson, 13 N. D. 97, 99 X. W. 
 1085; Quick v. Church, 23 Ont. Rep. 271, holding that wife may maintain action 
 for the alienation of her husband's affections; Xolin v. Pearson, 191 Mass. 287, 
 4 L.R.A.(N.S.) 647, 114 Am. St. Rep. 605, 77 N. E. -890, 6 A. & E. Ann. Cas. 
 658, holding that wife may maintain action against another woman for de- 
 bauching and carnally knowing her husband whereby his affections were alienated; 
 Sims v. Sims, 79 N. J. L. 580, 29 L.R.A. ( N.S. ) 845, 76 Atl. 1063, holding that 
 under act of 1906, chapter 248, wife may maintain action in her own name for 
 alienation of husband's affections; Riddle v. MacFadden, 201 N. Y. 218, 94 N. E, 
 644, to the point that action by wife to recover damages for alienation of hus- 
 band's affections is action for personal injury; O'Gorman v. Pfeiffer, 145 App, 
 Div. 239, 130 N. Y. Supp. 77, holding that wife whose husband has been enticed 
 away may maintain action for loss of support and of his society. 
 
 Cited in footnotes to Foot v. Card, 6 L. R. A. 829, and Betser v. Betser, 52 L. R. 
 A. 630, which sustain wife's right of action for alienating husband's affections; 
 Houghton v. Rice, 47 L. R. A. 310, which denies right of action against another 
 woman for alienating husband's affections unaccompanied by adultery; Sanbom 
 v. Gale, 28 L. R, A. 864, which holds running of limitation against action for 
 alienation of wife's affections not prevented by agreement of parties to adultery 
 to deny facts known to husband; Tucker v. Tucker, 32 L. R. A. 623, which holds 
 parent not liable for advising son to separate from wife; Doe v. Roe, 8 L. R, A. 
 833, which holds action for alienating husband's affections by debauching and 
 carnally knowing him, not maintainable. 
 
 Cited in notes (8 L. R. A. 420) on action for alienation of husband's affection's; 
 (10 L. R. A. 468) on liability for interrupting marital relations; (11 L. R. A, 
 549) on inducements to violate obligations not actionable; (28 Am. St. Rep. 218; 
 46 Am. St. Rep. 473, 474, 477) on wife's action for alienation of husband's af- 
 fections. 
 
 Distinguished in Hodge v. Wetzler, 69 N. J. L. 492, 55 Atl. 49, denying right of 
 wife to maintain action for alienation for her husband's affections and enticing 
 him away; Buckel v. Suss, 28 Abb. N. C. 22, 18 N. Y. Supp. 719, holding that 
 no action lies by married woman for enticing away her husband where the wife 
 voluntarily left her husband. 
 
 Disapproved in effect in Duffies v. Duffies, 76 Wis. 380, 8 L. R. A. 423, 20 Am. 
 St. Rep. 79, 45 N. W. 522, holding that wife cannot maintain action against one 
 enticing away husband or depriving her of his society, support, and maintenance ; 
 Lonstorf v. Lonstorf, 118 Wis. 161, 95 N". W. 961, denying wife's right of action 
 for alienation of husband's affections; Smith v. Smith, 98 Tenn. 106, 60 Am. St. 
 Rep. 838, 38 S. W. 439, holding under statute giving deserted wife authority to 
 prosecute any action which husband might have prosecuted, deserted wife cannot 
 maintain action for alienation of husband's affections causing desertion. 
 Gist of action. 
 
 Cited in Van Olinda v. Hall, 88 Hun, 456, 34 N. Y. Supp. 777; Buchanan v. 
 Foster, 23 App. Div. 544, 48 N. Y. Supp. 732; Billings v. Albright, 66 App. Div. 
 242, 73 N. Y. Supp. 22; Hollister v. Valentine, 69 App. Div. 584, 75 N. Y. Supp. 
 115; Daley v. Gates, 65 Vt. 593, 27 Atl. 193, holding that basis of action for ali- 
 enating affections of husband or wife is loss of consortium, or right of plaintiff to 
 conjugal society of alienated husband or wife; Whitman v. Egbert, 27 App. Div. 
 375, 50 N. Y. Supp. 3; Eldredge v. Eldredge, 79 Hun, 513, 2fi X. Y. Supp. 941, 
 holding that plaintiff must show defendants wrongfully enticed husband, and 
 deprived her of his society, to support action for alienating affections. 
 \V hat Is property. 
 
 Cited in Wilson v. JEolian Co. 64 App. Div. 341, 72 N. Y. Supp. 150, holding 
 
1131 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 559 
 
 chose in action is property ; Barry v. Port Jervis, 64 App. Div. 283, 72 N. Y. Supp. 
 104, holding that right of action for personal injury to property cannot be taken 
 away by unreasonable statute of limitation. 
 Parties to action. 
 
 Cited in Weld v. New York, L. E. & W. R, Co. 68 Hun, 251, 22 N. Y. Supp. 
 974, and Campbell v. Perry, 29 N. Y. S. R. 670, 9 N. Y. Supp. 330, holding husband 
 not proper party plaintiff in action by wife for injuries to person; Bradley v. 
 Shafer, 64 Hun, 432, 19 X. Y. Supp. 640, holding husband necessary party defend- 
 ant to action against wife for plaintiff's loss of services of daughter seduced by 
 defendant's son. 
 
 Cited in note (28 Am. St. Rep. 79) on joinder of husband and wife in action 
 for personal injury. 
 Damages for personal injuries. 
 
 Cited in Kujek v. Goldman, 150 N. Y. 180, 34 L. R. A. 158, 55 Am. St. Rep. 
 670, 44 N. E. 773, Affirming 9 Misc. 38, 29 N. Y. Supp. 294, holding loss of con- 
 jugal fellowship and society of wife, through misconduct of third person, action- 
 able injury without proof of pecuniary loss; Haden v. Clarke, 32 N. Y. S. R. 479, 
 10 N. Y. Supp. 291, holding that married woman may recover for pain and suffer- 
 ing caused by personal injury; Kelley v. New York, N. H. & H. R, Co. 168 Mass. 
 310, 38 l>. R, A. 632, 60 Am. St. Rep. 397, 46 i\. E. 1063, holding that recovery 
 by husband in action for personal injury to wife may include damages for loss of 
 wife's consortium; Williams v. Williams, 20 Colo. 67, 37 Pac. 614, holding entic- 
 ing husband to abandon wife, personal injury within statute permitting exemplary 
 damages for injuries to person; Mulvey v. Boston, 197 Mass. 180, 83 N. E. 402, 
 14 A. & E. Ann. Gas. 349, holding that action by husband for loss of services and 
 society of wife resulting from injury to her is an action for personal injuries. 
 Novelty as objection to action. 
 
 Cited in Weber v. Rogers, 41 Misc. 664, 85 N. Y. Supp. 232, holding novelty not 
 insuperable objection to action temporarily to restrain summary proceedings dur- 
 ing tenant's dangerous illness. 
 
 6 L. R. A. 559, HENDRICKS v. ISAACS, 117 N. Y. 411, 15 Am. St. Rep. 524, 22 
 
 N. E. 1029. 
 Validity of contract between bnsband and wife. 
 
 Cited in Harlem River Bank v. Meyer, 42 N. Y. S. R, 465, 16 N. Y. Supp. 872, 
 holding wife not liable upon indorsement of husband's demand note, to one receiv- 
 ing same for husband's antecedent debt; Lowenstein v. Salinger, 42 N. Y. S. R. 
 414, 17 N. Y. Supp. 70. holding wife not liable on contract made in conduct of 
 unauthorized copartnership with husband; Lawrence v. Lawrence, 32 Misc. 505, 66 
 N. Y. Supp. 393, Reversing 31 Misc. 649, 64 N. Y. Supp. 1113, holding agreement 
 in 1888 between husband and wife living together, but while divorce action pend- 
 ing, to make payments for support, void; Re Callister, 153 N. Y. 302, 60 Am. 
 St. Rep. 620, 47 N. E. 268, Modifying 88 Hun, 90, 34 N. Y. Supp. 628, holding that 
 not till after 1888 could husband make enforceable agreement with w r ife for her 
 personal services, rendered apart from separate business; Suau v. Gaffe, 122 N. Y. 
 318, 9 L. R. A. 596, 25 N. E. 488 (dissenting opinion), majority holding wife 
 liable on copartnership agreement with husband, notwithstanding coverture where 
 authorized to trade on separate account; Board of Trade v. Hayden, 4 Wash. 272, 
 1C L. R. A. 534, 31 Am. St. Rep. 919, 30 Pac. 87; Fuller & F. Co. v. McHenry, 83 
 Wis. 581, 18 L. R. A. 515, 53 N. W. 896, holding wife's partnership with husband 
 not within statute authorizing her to contract as to separate estate; Bailey v. 
 Dillon, 186 Mass. 247, 66 L.R.A. 428, 71 N. E. 538, holding enforceable a fair 
 
6 L.R.A. 559] L. R. A. CASES AS AUTHORITIES. 1132 
 
 and voluntary contract between wife and husband's trustee for her support after 
 separation; France v. France, 38 Misc. 461, 77 X. Y. Supp. 1015, holding enforce- 
 able contract by husband for maintenance of wife after separation; Norwood v. 
 Francis, 25 App. D. C. 475, 4 A. & E. Ann. Cas. 865, holding that married woman 
 cannot enter into a valid copartnership with her husband: Kimball v. Kimball, 75 
 N. H. 292, 73 Atl. 408, holding that common-law rule which refused to recognize 
 contracts between husband and wife exists in this state except as modified by 
 statute; Booth v. Fordham, 110 App. Div. 118, 91 N. Y. Supp. 406, on invalid- 
 ity of conveyances between husband and wife. 
 
 Cited in footnote to Dempster Mill Mfg. Co. v. Bundy, 56 L. R. A. 739, which 
 holds void, contract that product of joint labor of husband and wife shall belong 
 to wife. 
 
 Cited in notes (34 Am. St. Rep. 340) on power of married women to be part- 
 ners; (83 Am. St. Rep. 859, 882) on validity and effect of separation agreements. 
 
 Cited as changed by statute, in France v. France, 38 Misc. 461. 77 N. Y. Supp. 
 1015, holding bond for support given by husband and wife upon discontinuance of 
 divorce proceedings, not within inhibition of court's acts to alter marriage or 
 relieve from liability to support. 
 Enforcement of equitable agreement. 
 
 Cited in Hulse v. Bacon, 40 App. Div. 92, 57 N. Y. Supp. 537, holding that 
 deed to wife of property purchased with husband's means, supports reconveyance; 
 Hulse v. Bacon, 26 Misc. 457, 57 X. Y. Supp. 537. sustaining validity of recon- 
 veyance in 1858 of home and shipyard previously given by husband to wife: Hun- 
 gerford v. Hungerford, 161 N. Y. 553, 56 N. Y. Supp. 117, permitting wife to re 
 ecind separation agreement providing inadequate support, executed inadvisedly 
 while suffering from ill treatment; Cheney v. Thornton, 43 N. Y. S. R. 511, 17 N. 
 Y. Supp. 545, holding husband without interest in mortgage given him without 
 consideration by wife purchasing at foreclosure of his previous mortgage; Bohan- 
 non v. Travis, 94 Ky. 63, 21 S. W. 354, holding deed from wife to husband not 
 enforceable in equity, in view of laches; Livingston v. Hall, 73 Md. 396, 21 Atl. 
 49, refusing to sustain deed to husband by wife having children by former mar- 
 riage, made in consideration of natural affection and $1. in absence of allegations 
 of possession, or title questioned, or proof of circumstances of making. 
 
 Distinguished in Blaechinska v. Howard Mission & Home for Little Wanderers, 
 130 N. Y. 500, 15 L. R. A. 217, 29 N. E. 755, holding contract by husband to pay 
 wife for services in his business, not enforceable; Shaffer v. Kugler, 107 Mo. 63. 
 17 S. W. 698, holding wife's conveyance upon sufficient consideration of land to 
 husband, not enforceable in equity. 
 Duty to support. 
 
 Cited in Nostrand v. Ditmis, 127 N. Y, 360, 28 N. E. 27, holding mere fact of 
 use by wife of her separate funds for necessaries, not prove liability by husband to 
 repay; Re Hamilton, 70 App. Div. 76. 75 X. Y. Supp. 66, Reversing 34 Misc. 609, 
 70 N. Y. Supp. 426, holding that marriage relation precludes presumption of 
 promise to pay for board and lodging supplied by wife; Maxwell v. Lowther, 35 
 N. Y'. S. R. 768, 13 N. Y. Supp. 169, holding wife not liable to husband's creditors 
 for services which he voluntarily rendered her separate estate; Clift v. Moses, 75 
 Hun, 522, 27 N. Y. Supp. 728, holding transfer to wife in settlement of wife's ex- 
 penditure for their living expenses, fraudulent , Brundage v. Munger, 54 App. 
 Div. 552, 66 N. Y. Supp. 1014, holding that husband's voluntary payment for in- 
 terest, taxes and repairs when wife's property imposes no lien in favor of his 
 creditors; Re Hamilton, 70 App. Div. 70, 75 X. Y. Supp. 66, sustaining recovery 
 by wife for support and board of husband where he recognized the obligation by 
 a written statement. 
 
1133 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 562 
 
 Costs. 
 
 Cited in Walker v. Gardener. 8 Misc. 469. 29 X. Y. Supp. 669, holding reference 
 of claim against estate "special proceeding" as to costs. 
 
 6 L. R, A. 562, BAILEY v. BUCHANAN COUNTY, 115 N. Y. 297, 26 N. Y. S. R. 
 
 128, 22 X. E. 155. 
 Condition of payment. 
 
 Cited in Halpin v. Phenix Ins. Co. 118 N. Y. 176, 23 N. E. 482. holding that 
 mortgagor who tenders amount due, may attach condition that mortgagee execute 
 discharge; Ballou v. Manhattan Real Estate & Loan Co. 19 Misc. 701, 45 N. Y. 
 Supp. 10, holding that withdrawing member of loan association must surrender 
 certificate as condition of payment; Osterman v. Goldstein, 31 Misc. 503, 64 N. 
 Y. Supp. 555, holding that debtor liable on written instrument, may demand sur- 
 render as condition of payment; Zander v. New York Security & T. Co t 178 N. Y. 
 212, 70 N. E. 449, holding that person suing upon lost certificate of deposit, pay- 
 ment of which is conditioned on surrender, need not indemnify trust company; 
 Engelbach v. Simpson, 12 Tex. Civ. App. 196, 33 S. W. 596, holding tender made 
 upon condition that release of vendor's lien be delivered on final payment of pur- 
 chase money, valid. 
 Sufficiency of tender. 
 
 Cited in Osterman v. Goldstein, 32 Misc. 678, 66 N. Y. Supp. 506, holding ten- 
 der by indorsers of amount due on condition that note be surrendered should be 
 kept good by payment into court or averment of continued readiness to pay. 
 
 Cited in footnote to Moore v. Norman, 18 L. R. A. 359, which holds tender 
 coupled with demand of surrender of notes ineffectual to discharge chattel 
 mortgage. 
 Detached coupons. 
 
 Cited in Benttys v. Solon, 64 Hun, 128, 19 N. Y. Supp. 37, holding that de- 
 tached coupons are, for many purposes, separate instruments. 
 
 Cited in footnote to Internal Improv. Fund v. Lewis, 26 L. R. A. 743, which 
 holds cancelation or payment of bond before maturity not affect rights of bona 
 fide holder of coupon. 
 Coupons as specialities. 
 
 Cited in Kelly v. Forty-second Street, M. & St. N. Ave. R. Co. 37 App. Div. 508, 
 55 N. Y. Supp. 1096; Smith v. Greenwich, 80 Hun, 120, 30 N. Y. Supp. 56, holding 
 interest coupons specialties like the bonds and governed by same statute of lim- 
 itations: Hibbs v. Brown, 112 App. Div. 223, 98 N. Y. Supp. 353, on negotia- 
 bility of coupon bonds and interest coupons; Quackenbush v. Mapes, 123 App. Div. 
 246, 107 N. Y. Supp. 1047, holding that interest on mortgage is subject to same 
 statute of limitations as the mortgage itself, but statute runs from time each 
 instalment is due. 
 Guaranty not g'ood as to coupon holder. 
 
 Cited in Clokey v. Evansville & T. H. R. Co. 16 App. Div. 306, 44 N. Y. Supp. 
 631, holding guaranty to bondholder of punctual payment of principal and inter- 
 est not inure to benefit of holder of negotiated coupon. 
 Recovery of interest npon coupons. 
 
 Cited in Smith v. Greenwich, 80 Hun, 121, 30 N. Y. Supp. 56, holding that 
 owners of detached coupons may sue to recover accrued interest thereon; Wil- 
 liamsburgh Sav. Bank v. Solon. 136 N. Y. 481, 32 N. V. 1058. holding coupons 
 of town bonds mere incidents thereto while in possession of a bondholder and 
 that interest is not recoverable thereon ; Columbus. S. & H. R. Co.'s Appeal, 48 
 C. C. A. 291, 109 Fed. 193, holding interest not recoverable upon coupons in the 
 
6 L.R.A. 562] L. R. A. CASES AS AUTHORITIES. 1134 
 
 hands of the holders of the bonds, where principal and interest on the bonds 
 are payable in New York; Beattys v. Solon, 64 Hun, 126, 19 N. Y. Supp. 37 
 (dissenting opinion), majority holding interest recoverable on overdue coupons 
 of a railroad coupon bond; Lake County v. Linn, 29 Colo. 467, 68 Pac. 839 (dis- 
 senting opinion), majority holding interest recoverable on overdue coupons on 
 county bonds. 
 
 6 L. R. A. 565, SPIES v. CHICAGO & E. I. R. CO. 40 Fed. 34. 
 
 Accounting-. 
 
 Cited in Cook County Brick Co. v. Kaehler, 83 111. App. 454, holding share- 
 holder entitled to accounting after declaration of dividend. 
 Effect of mortgage on Income of corporation. 
 
 Cited in Central R. Co. v. Central Trust Co. 135 Ga. 482, 69 S. E. 708, to the 
 point that disposition of net income is not to be governed by discretion of direct- 
 ors but by terms of bonds and mortgage securing their payment. 
 
 Cited in footnote to New York Security & T. Co. v. Saratoga Gas & Electric 
 Light Co. 45 L. R. A. 132, which holds general creditors preferred to mortgage 
 bondholders in corporate earnings before property taken by trustee or receiver. 
 
 Cited in note (9 L. R. A. 143) on mortgage on future acquired property. 
 
 6 L. R. A. 569, PATTON v. LEFTWICH, 86 Va. 421, 19 Am. St. Rep. 902, 10 
 
 S. E. 686. 
 Rig-hts and liabilities of partners. 
 
 Cited in Burchinell v. Koon, 8 Colo. App. 465, 46 Pac. 932, holding that valid 
 mortgage of partnership property to secure firm debts may be executed; Riley 
 v. Carter, 76 Md. 593, 19 L. R. A. 494, 35 Am. St. Rep. 443, 25 Atl. 667, holding 
 deed of trust for benfit of creditors, by insane survivng partner of insolvent 
 firm, valid, until impeached by creditors; Millhiser v. McKinley, 98 Va. 209, 35 
 S. E. 446, holding preferences in assignment by partners made prior to bank- 
 ruptcy law, valid; People's Nat. Bank v. Wilcox, 136 Mich. 577, 100 N. W. 24, 
 4 A. & E. Ann. Cas. 465, holding that mortgage given by surviving partner for 
 money loaned to the firm gives mortgagee preference over other creditors in assets 
 mortgaged ; American Bonding Co. v. State, 40 Ind. App. 565, 82 N. E. 548 ; 
 Bartlett v. Smith, 5 Neb. (Unof.) 339, 98 N. W. 687, holding that surviving 
 partner of insolvent firm may prefer one bona fide creditor to the exclusion of 
 others if acting in good faith. 
 
 Cited in footnotes to Hundley v. Farris, 12 L. R. A. 254, which holds individ- 
 ual creditors primarily entitled to payment out of deceased partner's estate; 
 Re Baldwin, 58 L. R. A. 122, which sustains individual liability of member of 
 banking firm, signing name to certificate of deposit, enforceable against estate 
 in preference to claims against firm; Kincaid v. National Wall Paper Co. 54 
 L. R. A. 412, which sustains right of partners to appropriate with other part- 
 ners' consent interest in firm to pay individual in preference to firm debts. 
 
 Distinguished in State ex rel. Richardson v. Withrow, 141 Mo. 77, 41 S. W. 
 980, holding assignment by surviving partner, operating to take firm property 
 out of probate court, void by statute; Rogers v. Flournoy, 21 Tex. Civ. App. 
 558, 54 S. W. 386, holding that surviving partner cannot make valid assignment 
 of individual interest for benefit of creditors. 
 Validity of assignment for creditors. 
 
 Cited in notes ( 30 Am. St. Rep. 816 ) on validity of assignment for benefit of 
 creditors; (34 Am. St. Rep. 856) on preferences in assignments for creditors. 
 
1135 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 576 
 
 6 L. R. A. 573, JORDAN v. ST. PAUL, M. & M. R. CO. 42 Minn. 172, 43 N. W. 
 
 849. 
 Surface water. 
 
 Cited in Brown v. Winona & S. W. R. Co. 53 Minn. 263, 39 Am. St. Rep. 603, 
 55 N. W. 123, holding that owner may improve his lands in such a way as to 
 cast surface water in streams on adjoining premises; Johnson v. Chicago, St. 
 P. M. & O. R. Co. 80 Wis. 646, 14 L. R. A. 497, 27 Am. St. Rep. 76, 
 50 N. W. 771, holding surface water including that received from higher 
 levels by embankments or ditches may be diverted to lands of another whose rem- 
 edy is to pass it on; Clauson v. Chicago & N. VV. R. Co. 106 Wis. 315, 82 X. W. 
 146, holding that property owner cannot recover for damage to lands from water 
 bearing sand and gravel cast thereon, incidental to improvement of railroad 
 property by changing grade; Missouri P. R. Co. v. Renfro, 52 Kan. 242, 39 Am. 
 St. Rep. 344, 34 Pac. 802, holding railroad company not liable to adjoining 
 owner for injuries from surface water due to properly constructed embank- 
 ment; Beach v. Gaylord, 43 Minn. 477, 45 N. W. 1095, holding that property 
 owner cannot collect water in gutter pipes in great volume and discharge it upon 
 his own land at point where it will flow upon neighboring premises in increased 
 and injurious quantity; Carroll v. Rye Twp. 13 N. D. 463, 101 N. W. 894, holding 
 a township is not liable for loss suffered by a landowner by increased flow of 
 surface water upon his land, resulting solely from improvement of highway in the 
 ordinary manner without negligence; Shaw v. Ward, 131 Wis. 656, 111 N. W. 671, 
 11 A. & E. Ann. Gas. 1139, holding landowner may protect his premises from 
 surface water or rid himself thereof in a reasonable way even though conse- 
 quential injuries may thereby be caused to other lands. 
 
 Cited in footnote to Champion v. Crandon, 19 L. R. A. 856, which holds di- 
 version of surface water by changing grade of highway not actionable. 
 
 Cited in notes (6 L. R. A. 450) right to use and improve one's property; (8 
 L. R. A. 202) upper owner cannot vary flow to injury of lower owner; (8 L. R. 
 A. 277) prescriptive right to flow of water; (13 L. R. A. 395) embankment must 
 not occasion injury to others; (21 L. R. A. 602, 603) casting down surface 
 water; (85 Am. St. Rep. 716, 718, 727) on right of land owner to accelerate 
 or diminish flow of water to or from lands of another. 
 
 Distinguished in Missouri P. R. Co. v. Renfro, 52 Kan. 244, 39 Am. St. Rep. 
 344, 34 Pac. 802, from cases where railroad companies constructed ditches for 
 drainage purposes only. 
 
 Criticized in Sheehan v. Flynn, 59 Minn. 443, 26 L. R. A. 634, 61 N. W. 462, 
 stating distinction between cases where improvement is made for drainage, and 
 where drainage is incidental, not well founded. 
 
 6 L. R. A. 576, HANCOCK v. YADEN, 121 Ind. 366, 16 Am. St. Rep. 396, 23 
 
 N. E. 253. 
 Statutory restriction of freedom of contract. 
 
 Cited in Opinion of the Justices, 163 Mass. 591, 28 L. R. A. 345, 40 N. E. 713, 
 holding statute requiring manufacturers to pay wages weekly, constitutional; 
 Harbison v. Knoxville Iron Co. 103 Tenn. 446, 56 L. R. A. 321, 76 Am. St. Rep. 
 682, 53 S. W. 955, holding act requiring redemption in cash at face value of 
 evidences of indebtedness issued for wages, constitutional; State v. Peel Splint 
 Coal Co. 36 W. Va. 825, 17 L. R. A. 392, 15 S. E. 1000, holding act requiring 
 payment of miners according to weight of coal before screening, constitutional; 
 Com. v. Brown, 8 Pa. Super. Ct. 355, 43 W. N. C. 75, holding act requiring 
 weighing of bituminous coal before screening, unconstitutional; International 
 Text-Book Co. v. Weissinger, 160 Ind. 354, 65 L. R. A. 601, 98 Am. St. Rep. 334, 
 
6 L.R.A. 576] L. R. A. CASES AS AUTHORITIES. 1136. 
 
 65 N. E. 521, sustaining statute prohibiting assignment of future wages; State 
 ex rel. Zillmer v. Kreutzberg, 114 Wis. 543, 58 L. R. A. 754, 91 Am. St. Rep. 
 934, 90 N. W. 1098, holding statute forbidding discharge of employee because 
 member of labor union, unconstitutional; Wortman v. Montana C. R. Co. 22 
 Mont. 279, 56 Pac. 316, holding contract provision waiving right of appeal to 
 courts, void; State v. Haun, 61 Kan. 167, 47 L. R. A. 376, 59 Pac. 340 (dissent- 
 ing opinion), majority holding statute prohibiting contracts to pay wages in 
 other than money, unconstitutional ; Com. v. Perry, 155 Mass. 125, 14 L. R. A. 
 328, 31 Am. St. Rep. 5<3, 28 N. E. 1126 (dissenting opinion), majority holding 
 statute prohibiting withholding any part of wages for imperfections in weav- 
 ing, unconstitutional; Seelyville Coal & Min. Co. v. McGlosson, 166 Ind. 566, 117 
 Am. St. Rep. 396, 77 N. E. 1044, 9 A. & E. Ann. Cas. 234, holding that pro- 
 vision for payment of wages in lawful money is valid; Knight & J. Co. v. Miller, 
 172 Ind. 44, 87 N. E. 823, holding valid act prohibiting contracts and combin- 
 ations in restraint of trade; McGuire v. Chicago, B. & Q. R. Co. 131 Iowa, 366, 
 33 L.R.A. (N.S.) 719, 108 N. W. 902, holding valid statute imposing upon rail- 
 way companies' liability for negligence of fellow servants regardless of any con- 
 tract it may make with its employees; Mutual Loan Co. v. Martell, 200 Mass. 
 487, L.R.A.(]S T .S.) , 128 Am. St. Rep. 446, 86 N. E. 916, holding valid statute 
 restricting the assignment of wages earned in the future; Shortall v. Puget Sound 
 Bridge & Dredging Co. 45 Wash. 295, 122 Am. St. Rep. 899, 88 Pac. 212, holding 
 constitutional act making wages payable in money forthwith upon completion of 
 labor notwithstanding agreement for postponement of payment; Atlantic C'nast 
 Line R. Co. v. Beazley, 54 Fla. 426, 45 So. 761, on right to contract as being 
 subject to regulation by statute for which purpose reasonable classification may 
 be made. 
 
 Cited in notes (14 L. R. A. 326) on statutory restrictions on contracts be- 
 tween master and servant; (28 L. R. A. 344) on validity and effect of statutes 
 regulating time of payment of wages; (28 L. R. A. 274) on validity and effect 
 of statutes requiring wages to be paid in lawful money; (37 Am. St. Rep. 213) on 
 statute regulating relations of master and servant; (62 Am. St. Rep. 177, 178) 
 on protection of corporations from special and hostile legislation; (122 Am. 
 St. Rep. 907) on constitutionality of statutes regulating time and method of 
 payment of wages. 
 
 Distinguished in Leep v. St. Louis, I. M. & S. R. Co. 58 Ark. 426, 23 L. R. 
 A. 271, 41 Am. St. Rep. 109, 25 S. W. 75, holding statute abridging right to 
 contract to labor with period of credit for payment, unconstitutional. 
 
 Disapproved in State v. Missouri Tie & Timber Co. 181 Mo. 557, 65 L.R.A. 
 601, 103 Am. St. Rep. 614, 80 S. W. 933, 2 A. & E. Ann. Cas. 119, holding uncon- 
 stitutional act making it misdemeanor for corporation not engaged in public 
 business to pay its employees in other than money. 
 Class legislation. 
 
 Cited in State v. Indiana & I. S. R. Co. 133 Ind. 78, 18 L. R. A. 506, 32 N. E. 
 817, holding act requiring train bulletin posted at passenger depots having tele- 
 graph office, constitutional; Duckwall v. Jones, 156 Ind. 686, 58 N. E. 105(5, 
 holding statute authorizing allowance of attorney's fees on foreclosure of me- 
 chanic's lien, constitutional; Branson v. Studabaker, 133 Ind. 151, 33 N. E. 98, 
 holding act providing for transfer of cases from Supreme to appellate court 
 docket, making general classification, valid; State v. Peel Splint Coal Co. 36 
 W. Va. 854, 17 L. R. A. 402, 15 S. E. 1000 (dissenting opinion), majority 
 holding act forbidding payment of wages by persons engaged in trade or busi- 
 ness in scrip not redeemable in money, constitutional ; Morris v. Powell, 125 
 Ind. 306, 9 L. R. A. 336, 25 N. E. 221 (dissenting opinion), majority holding act 
 
1137 L. E. A. CASES AS AUTHORITIES. [6 L.R.A. 576 
 
 requiring registration of voters absenting themselves from state, or not re- 
 siding in any one county for six months before election, unconstitutional; State 
 v. Richcreek, 167 Ind. 224, 5 L.R.A.(X.S.) 879, 119 Am. St. Rep. 491, 77 X. E. 
 1085, 10 A. & E. Ann. Gas. 899, holding valid act regulating banking which 
 provides that not more than one third of the capital of any bank shall be in- 
 vested in real estate furniture and fixtures; Chandler Coal Co. v. Sama, 170 Ind. 
 629, 85 X. E. 341, holding valid act regulating coal mines though by its terms 
 made applicable only to mines employing more than ten men; Johnson v. Spartan 
 Mills, 68 S. C. 361, 47 S. E. 695, 1 A. & E. Ann. Cas. 409, holding statute com- 
 pelling payment of wages in money at option of employee constitutional though 
 agricultural contracts are specifically exempted. 
 
 Cited in footnotes to Braceville Coal Co. v. People, 22 L. R. A. 340, which holds 
 unconstitutional, statute requiring weekly payment of wages by specified cor- 
 porations; Frorer v. People, 16 L. R. A. 492, which holds prohibition against 
 employers in certain kinds of business selling goods to employees unconstitu- 
 tional. 
 
 Cited in notes (6 L. R. A. 622) on validity of class legislation; (14 L. R. A. 
 582) on constitutional equality of privileges and immunities; (25 Am. St. Rep. 
 881) on 14th amendment as to special privileges, burdens and restrictions. 
 
 Distinguished in Dixon v. Poe, 159 Ind. 499, 60 L. R. A. 311, 95 Am. St. Rep. 
 309, 65 X. E. 518, holding act requiring redemption in money of tokens issued 
 by merchants to employees in coal mine assigning wages, invalid class legisla- 
 tion. 
 
 Disapproved in Johnson v. Goodyear Min. <jo. 127 Cal. 18, 47 L. R. A. 344, 78 
 Am. St. Rep. 17, 59 Pac. 304, holding act giving employees lien on property of 
 corporations failing to pay wages monthly, unconstitutional; State v. Loomis, 
 115 Mo. 320, 21 L. R. A. 795, 22 S. W. 350, holding statute prohibiting em- 
 ployers engaged in manufacturing or mining from paying wages in orders not 
 redeemable in cash, unconstitutional. 
 Scope of legislative powers. 
 
 Cited in State ex rel. Geake v. Fox, 158 Ind. 129, 56 L. R. A. 895, 63 N. E. 
 19, holding legislative power restricted only by state and Federal Constitutions, 
 and laws and treaties pursuant thereto. 
 Discretionary exercise not reviewable by courts. 
 
 Cited in State ex rel. Clark v. Haworth, 122 Ind. 467, 7 L. R. A. 242, 23 N. E. 
 946. holding courts cannot control discretion of legislature in prescribing course 
 of study and books used in public schools; State ex rel. Terre Haute v. Kolsem, 
 130 Ind. 442. 14 L. R. A. 570, 29 N. E. 595, holding legislature sole judge of 
 necessity for special law; State ex rel. Harrison v. Menaugh, 151 Ind. 266, 43 
 L. R. A. 411, 51 N. E. 117, holding act changing time of electing township trus- 
 tees valid. 
 I^esrislative power not exercisable by courts. 
 
 Cited in Forsyth v. Hammond, 18 C. C. A. 179, 34 U. S. App. 552, 71 Fed. 
 446, holding order of commissioners enlarging municipal boundaries not re- 
 viewable by court. 
 Contracts deemed made with reference to law. 
 
 Cited in Farmers' Loan & T. Co. v. Canada & St. L. R. Co. 127 Ind. 253, II 
 L. R. A. 74(i. -2(> X. K. 784. holding law deemed part of every contract; Bell v. 
 Hiner. 16 Ind. App. 188, 44 X. E. 576, holding laws preferring labor liens deemed 
 to enter into mortgage. 
 Kit: lit of creditor to cash payment. 
 
 Cited in Born v. First Xat. Bank, 123 Ind. 81, 7 L. R. A. 444, 18 Am. St. Rep. 
 L.E.A. Au. Vol. I. 72. 
 
6 L.R.A. 576] L. R. A. CASES AS AUTHORITIES. 1138 
 
 312, 24 N. E. 173, holding in absence of express agreement acceptance of cer- 
 tified check not payment; Combs v. Bays, 19 Ind. App. 265, 49 N. E. 358, hold- 
 ing promissory note, in absence of agreement, not payment of debt; Vansickle 
 v. Furgeson, 122 Ind. 451, 23 N. E. 858, holding money payment of wages re- 
 quired where agreement to contrary void for indefiniteness; Farmers Loan & 
 T. Co. v. Canada & St. L. R. Co. 127 Ind. 258, 11 L. R. A. 744, 26 N. E. 784, 
 holding money demandable where bonds agreed to be taken in payment not 
 tendered. 
 Accord and satisfaction, TV lint is. 
 
 Cited in Henes v. Henes, 5 Ind. App. 106, 31 N. E. 832, holding payment of 
 part no consideration for agreement to release whole debt; Jennings v. Dur- 
 flinger, 23 Ind. App. 678, 55 N. E. 979, holding acceptance of check "in full" 
 for less than sum due not accord and satisfaction. 
 
 Cited in note (1 Eng. Rul. Cas. 400) on unexecuted accord as to satisfaction. 
 Payment in money. 
 
 Cited in Goshorn v. People's Nat. Bank, 32 Ind. App. 430, 102 Am. St. 
 Rep. 248, 69 N. E. 185, on duty of bank to pay depositor in money. 
 
 6 L. R. A. 579, STATE ex rel. CORWIN v. INDIANA, & O. OIL, GAS & MIN. 
 
 CO. 120 Ind. 575, 2 Inters. Com. Rep. 758, 22 N. fe. 778. 
 Regulation of interstate commerce. 
 
 Followed without discussion in Avery v. Indiana & O. Oil, Gas & Min. Co. 120 
 Ind. 600, 22 N. E. 781, and Benedict v. Columbus Constr. Co. 49 N. J. Eq. 28, 
 23 Atl. 485. 
 
 Cited in Manufacturers Gas & Oil Co. v. Indiana Natural Gas & Oil Co. 155 
 Ind. 546, 53 L. R. A. 135, footnote, p. 134, 58 N. E. 706, holding statute pro- 
 hibiting transportation of natural gas out of state, unconstitutional; Miller v. 
 Goodman, 91 Tex. 43, 40 S. W. 718, holding statute forbidding foreign corpo- 
 ration to maintain suit on claim except where papers filed at time of origin of 
 claim, unconstitutional; Kansas Natural Gas Co. v. Haskell, 172 Fed. 564, 
 holding that the state cannot prohibit the transportation of natural gas be- 
 yond its borders; Haskell v. Cowhan, 109 C. C. A. 235, 187 Fed. 408, holding that 
 statute preventing use of pipe lines across highways and so preventing trans- 
 portation of gas to points outside state is unconstitutional; West v. Kansas 
 Natural Gaa Co. 221 U. S. 256, 55 L. ed. 726, 35 L.R.A.(N.S.) 1207, 31 Sup. Ct. 
 Rep. 564, holding that statute prohibiting transportation of gas to points outside 
 of state is unconstitutional; Ex parte Massey, 49 Tex. Crim. Rep. 64, 122 Am. St. 
 Rep. 184, 92 S. W. 1086, holding unconstitutional state law interfering with in- 
 terstate commerce in intoxicating liquors. 
 
 Cited in footnotes to Jamieson v. Indiana Natural Gas & Oil Co. 12 L. R. A. 
 <552, which holds state regulation of pressure of natural gas in pipes within state 
 not unlawful regulation of commerce; Stockton v. Powell, 15 L. R. A. 42, which 
 holds state improvement of navigable water entirely within state not interfer- 
 ence with commerce; Bagg v. Wilmington, C. & A. R. Co. 14 L. R. A. 596, which 
 holds act compelling shipment of freight within specified time not interference 
 with commerce; Lafarier v. Grand Trunk R. Co. 17 L. R. A. Ill, which holds 
 tate statute giving ticket holder stopover rights not applicable outside of state. 
 
 Cited in notes (13 L.R.A. 687) on constitutionality of state laws imposing 
 taxes or penalties on immigration; (22 Am. St. Rep. 440) on legislative control 
 over foreign corporations; (27 Am. St. Rep. 558) on state regulation of inter- 
 state commerce. 
 
 Distinguished in Jamieson v. Indiana Natural Gas & Oil Co. 128 Ind. 576, 12 
 
1139 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 584 
 
 L. R. A. 655, 3 Inters. Com. Rep. 616, 28 N. E. 76, holding regulation of gas 
 pressure in transportation pipes valid police measure; State v. Geer, 61 Conn. 
 152, 13 L. R. A. 806, 3 Inters. Com. Rep. 734, 22 Atl. 1012, holding statute 
 prohibiting killing of game birds for purpose of conveying same out of state, 
 valid; McCarter v. Hudson County Water Co. 70 N. J. Eq. 710, 14 L.R.A.(N.S.) 
 205, 118 Am. St. Rep. 754, 65 Atl. 489, 10 A. & E. Ann. Gas. 116, holding valid 
 statute prohibiting the abstraction of fresh water running in a natural stream 
 for transportation beyond the boundaries of the state. 
 Property in KJI*. 
 
 Cited in People's Gas Co. v. Tyner, 131 Ind. 280, 16 L. R. A. 444, 31 Am. St. 
 Rep. 433, 31 N. E. 59, holding party entitled to all gas flowing from well though 
 coming in part from neighbor's land; Townsend v. State, 147 Ind. 628, 37 L. R. 
 A. 298, 62 Am. St. Rep. 477, 47 N. E. 19, holding statute prohibiting waste of 
 natural gas valid police regulation, though limiting property right; Ohio Oil 
 Co. v. Indiana, 177 U. S. 205, 44 L. ed. 738, 20 Sup. Ct. Rep. 576, holding stat- 
 ute requiring confinement of oil or gas within two days after struck, constitu- 
 tional; Richmond Natural Gas Co. v. Enterprise Natural Gas Co. 31 Ind. App. 
 231, 66 N. E. 782, denying injunction against use of pumps not increasing nat- 
 ural flow of gas from well; Federal Oil Co. v. Western Oil Co. 57 C. C. A. 429, 
 121 Fed. 675, holding that oil and gas lease vests inchoate title only. 
 
 Cited in note (16 L. R. A. 444) on natural gas. 
 Public occupation. 
 
 Cited in Kincaid v. Indianapolis Natural Gas. Co. 124 Ind. 581, 8 L. R. A. 
 603, 19 Am. St. Rep. 113, 24 N. E. 1066, holding supplying citizens with gas, 
 public use, authorizing exercise of power of eminent domain. 
 Judicial notice. 
 
 Cited in Jamieson v. Indiana Natural Gas & Oil Co. 128 Ind. 564, 12 L. R. A. 
 655, 3 Inters. Com. Rep. 616, 28 N. E. 76, taking judicial notice of inflammable 
 and explosive nature of gas. 
 Construction of statute. 
 
 Cited in Logan v. Stogsdale, 123 Ind. 375, 8 L. R. A. 60, 24 N. E. 135, holding 
 that statute must be taken in entirety where provisions inseparable. 
 
 6 L. R. A. 584, TAYLOR v. EVANSVILLE & T. H. R. CO. 121 Ind. 124, 16 Am. 
 
 St. Rep. 372, 22 N. E. 876. 
 Who are fellow servants. 
 
 Cited in Kerlin v. Chicago, P. & St. L. R. Co. 50 Fed. 186, holding in Indiana 
 baggage master coservant with conductor of another train; Cole Bros. v. Wood, 
 11 Ind. App. 54, 36 N. E. 1074, holding foreman in fixing place for himself and 
 another employee to work causing plaintiff's injury, not a coservant; Dill v. 
 Marmon, 164 Ind. 511, 69 L.R.A. 168, 73 N. E. 67, holding foreman directing the 
 moving of cars by hand to be a fellow servant. 
 
 Cited in note (75 Am. St. Rep. 585, 597, 601, 623, 624, 626) one who is a vice 
 principal. 
 
 Distinguished in Peirce v. Oliver, 18 Ind. App. 95, 47 N. E. 485, holding fall- 
 ing of jackscrew by failure of foreman to watch it, negligence of fellow servant; 
 Justice v. Pennsylvania Co. 130 Ind. 324, 30 N. E. 303, holding railroad section 
 foreman fellow servant in control of his men after their employment; McBride 
 v. Indianapolis Frog & Switch Co. 5 Ind. App. 484, 32 N. E. 579, holding travel- 
 ing salesman while working in shops, fellow servant of mechanic whom he di- 
 rects to assist him. 
 Agents of superior rank in capacity of coemployee. 
 
 Cited in Hodges v. Standard Wheel Co. 152 Ind. 687, 52 N. E. 393, holding mas- 
 
6 L.R.A. 584] L. R. A. CASES AS AUTHORITIES. II 40 
 
 ter's agent personally assisting in removing lumber, fellow servant of employee; 
 Gann v. Nashville, C. & St. L. R. Co. 101 Tenn. 384, 70 Am. St. Rep. 687, 47 
 S. W. 493; Louisville, N. A. & C. R. Co. v. Isom, 10 Ind: App. 695, 38 N. E. 
 423, holding superior while performing servant's duty, fellow servant; Illinois 
 C. R. Co. v. Bolton, 99 Tenn. 277, 41 S. W. 442, holding carrier not liable to 
 servant for negligence of section foreman while working as laborer: Stockmeyer 
 v. Reed, 55 Fed. 262, holding servant cannot recover from master for foreman's 
 negligence in pounding upon rock in stone quarry; Galvin v. Pierce, 72 N. H. 
 89, 54 Atl. 1014 (dissenting opinion), majority holding foreman directing oper- 
 ations and laborer attaching derrick chains, fellow servants; Cleveland, C. C. & 
 St. L. R. Co. v. Poland, 174 Ind. 418, 92 N. E. 165, to the point that agent of 
 high rank may be, at time act is done fellow servant of employee occupying 
 subordinate position; Ohio River & C. R. Co. v. Edwards, 111 Tenn. 46, 76 
 S. W. 897, holding sub-foreman in charge of part of section crew to be a fellow 
 servant of section man. 
 
 Cited in notes (18 L. R. A. 825) on negligent superiors; (51 L. R. A. 581, 595 r 
 597, 609, 610) on vice principalship considered with reference to superior rank 
 of negligent servant. 
 Employee as master's representative. 
 
 Cited in Nail v. Louisville, N. A. & C. R. Co. 129 Ind. 267, 28 N. E. 184, hold- 
 ing agent with absolute authority and control, not fellow servant of employees 
 under his command; Bloyd v. St. Louis & S. F. R. Co. 58 Ark. 77, 41 Am. St. 
 Rep. 85, 22 S. W. 1089, holding master liable to servant for negligence, in giving 
 orders, of foreman in charge of building and repairing bridges; Indiana, I. & I. 
 R. Co. v. Snyder, 140 Ind. 653, 39 N. E. 912,' holding employee entrusted with 
 duty of providing safe appliances, vice principal; Louisville, N. A. & C. R. Co. 
 v. Heck, 151 Ind. 308, 50 N. E. 988, holding master liable for death of train- 
 man through train despatcher's negligence; Baltimore & 0. S. W. R. Co. v. 
 \Yalker, 41 Ind. App. 593, 84 N. E. 730, holding that in selecting tools for the 
 use of servants, the foreman acts as vice principal. 
 
 Cited in note (7 L. R. A. 501) on master's liability for negligent acts of vice 
 principal. 
 Employee in charge of a. branch or department of work. 
 
 Cited in Clarke v. Pennsylvania Co. 132 Ind. 201, 17 L. R. A. 812, 31 N. E. 
 808, holding negligence of employee in charge of separate department, negligence 
 of master; Hoosier Stone Co. v. McCain, 133 Ind. 237, 31 N. E. 956, holding 
 master liable for negligence of its superintendent of stone quarry causing per- 
 sonal injury; Louisville, N. A. & C. R. Co. v. Heck, 151 Ind. 306, 50 N. E. 988, 
 holding general superintendent of railroad division, vice principal. 
 
 Cited in note (7 L. R. A. 503) on master's liability for acts of agent or rep- 
 resentative. 
 Master's duty as to safety of servants. 
 
 Cited in Louisville, N. A. & C. R. Co. v. Corps, 124 Ind. 428, 8 L. R. A. 637, 
 24 N. E. 1X)46, and Evansville & T. H. R. Co. v. Duel, 134 Ind. 158, 33 N. E. 
 355, holding that master must use reasonable care to provide safe place and 
 tools and 'competent servants; Neutz v. Jackson Hill Coal & Coke Co. 139 Ind. 
 415. 38 N. E. 324, holding master not liable for servant's failure to inspect, 
 set brakes, or block wheels of defective cars; Chicago & E. R. Co. v. Lee, 17 Ind. 
 App. 219, 46 N. E. 543, holding master only required to provide reasonably safe 
 place for servants to work; Matchett v. Cincinnati, W. & M. R. Co. 132 Ind. 
 342. 31 N. E. 792, holding that carrier must use reasonable care to provide 
 safe brakes; Steube v. Christopher & S. Architectural Iron & Foundry Co. 85 
 
1141 L. R. A. CASES AS AUTHORITIES. [G L.R.A. 534 
 
 Mo. App. 647, holding that master's duty to superintend work cannot be dele- 
 gated so as to avoid liability; Baltimore & 0. S. W. R. Co. v. Spaulding, 21 
 Ind. App. 328, 52 N. E. 410, holding master liable for allowing iron, negligently 
 placed, to remain in scrap bin; Evansville & T. H. R. Co. v. Holcomb, 9 Ind. 
 App. 205, 36 X. E. 39, holding master liable for employee's failure to give notice 
 of danger to car repairer; Louisville, N. A. & C. R. Co. v. Corps, 124 Ind. 428, 
 8 L. R. A. 637, 24 X. E. 1046, holding that employee must use reasonable care to 
 select competent and skilful persons for service; Rogers v. Leyden, 127 Ind. 51, 
 26 X. E. 210, Affirming judgment for personal injury to servant from fall of 
 overhanging mine roof; McLaine v. Head & D. Co. 71 N. H. 301, 58 L. R. A. 
 469, 93 Am. St. Rep. 522, 52 Atl. 545 (dissenting opinion), majority holding 
 master not liable for negligence of foreman in failing to notify trench laborer of 
 dumping of load of earth; Romona Oolitic Stone Co. v. Shields, 173 Ind. 75, 88 
 X. E. 595, holding that instructions exempting master from liability, on ground 
 of misuse of appliances should not be given where superintendent was present and 
 consented to use. 
 
 Cited in note (54 L. R. A. 101) on duty to warn as to dangers of transitory 
 class occasionally supervening during progress of work as nondelegable duty. 
 Employee under specific order to do special work. 
 
 Cited in Pennsylvania Co. v. O'Shaughnessy, 122 Ind. 591, 23 N. E. 675, holding 
 employee protected to reasonable extent by order directing him to do special 
 duty; Brazil Block Coal Co. v. Hoodlet, 129 Ind. 337, 27 X. E. 741, holding that 
 servant may assume master will provide safe place, tools and appliances; Louis- 
 ville, E. & St. L. Consol. R. Co. v. Banning, 131 Ind. 534, 31 Am. St. Rep. 443, 
 31 X. E. 187, holding that servant may assume master will use special care to 
 render unusual employment safe; Ft. Wayne v. Patterson, 25 Ind. App. 558, 58 
 X. E. 747, holding that servant directed to dig bell holes may assume master 
 has not made place unsafe; Xorton Bros. v. Xadebok, 190 111. 602, 54 L. R. A. 843, 
 60 X. E. 843, holding master liable to servant under vice principal's orders, for 
 vice principal's negligent act causing injury; Chicago, R. I. & P. R. Co. v. Strong, 
 129 111. App. 202, holding master liable where foreman ordered servant to go 
 between cars and couple them, and then gave signal to move the cars whereby the 
 servant was injured; Republic Iron & Steel Co. v. Berkes, 162 Ind. 524, 70 
 X. E. 815; Schminkey v. Sinclair, 137 Iowa, 134, 114 X. W. 612, holding that 
 employee ordered to do special work does not assume the risk of injury from 
 the negligence of the one ordering him to do the work; Consolidated Stone Co. 
 v. Ellis, 46 Ind. App. 85, 91 X. E. 1095. holding that master is liable for failure 
 to give warning where foreman directed servant to give whole attention to 
 constructing bed of spalls assuring him that he would warn him of any danger 
 from stone which was being thrown over cliff to point near such bed; Lohinan 
 v. Swift & Co. 105 Minn. 154, 117 X. \V. 418, holding that foreman, starting 
 machinery while servant was in place of danger pursuant to the foreman's 
 order, acted as vice principal. 
 
 Cited in note (17 L. R. A. 607) on reliance upon orders as affecting contribu- 
 tory negligence of employee. 
 Risks of employment. 
 
 Cited in Griffin v. Ohio & M. P. Co. 124 Ind. 327, 24 N. E. 888, holding that 
 servant digging in gravel pit assumes risk of falling of super stratum of clay ; 
 Stuart v. Xew Albany Mfg. Co. 15 Ind. App. 196, 43 X. E. 961, holding that 
 servant assumes open and obvious risks of his regular employment; Oolitic 
 Stone Co. v. Ridge, 174 Ind. 568, 91 X. E. 944, holding that rule as to assumption 
 of risk does not apply where servant is ordered to uj outside work and where 
 danger is unknown to him; Inland Steel Co. v. Smith, 39 Ind. App. 645, 75 
 
6 L.R.A. 584] L. R. A. CASES AS AUTHORITIES. 1142 
 
 N. E. 852, holding question of assumption of risk of injury from moving 
 crane which servant could not see from position where employed, to be for jury; 
 Ft. Smith & W. R. Co. v. Ketis, 26 Okla. 706, 110 Pac. 661, holding that whether 
 injury resulted from risk assumed by servant or from master's negligence was 
 for jury where injury resulted from falling of top of embankmant, servant having 
 been at work but short time and not having been warned. 
 
 Cited in footnotes to Williamson v. Newport News & M. Valley Co. 12 L. R. A. 
 297, which holds brakeman assumes risk of bridge known to be too low; McKee 
 v. Chicago, R. I. & P. R. Co. 13 L. R. A. 817, which holds risk from wing fences 
 at cattle guards assumed by brakemen. 
 
 Cited in note (12 L. R. A. 342) on assumption of ordinary risks of employment 
 by employee. 
 
 6 L. R. A. 588, KELLOGG v. HOWES, 81 Cal. 170, 22 Pac. 509. 
 
 Action on supersedeas bond, in Kellogg v. Howes, 93 Cal. 586, 29 Pac. 230. 
 Class legislation. 
 
 Cited in State v. Gregory. 170 Mo. 604, 71 S. W. 170, holding statute imposing 
 penalty on contractor or subcontractor falsely representing where material pur- 
 chased on credit is to be used, constitutional; Merced Lumber Co. v. Bruschi, 152 
 Cal. 375, 92 Pac. 844, holding that attorney's fees cannot be allowed to one 
 foreclosing a mechanics lien by action. 
 Building- contracts; mechanic's lien. 
 
 Followed in Davies Henderson Lumber Co. v. Gottschalk, 81 Cal. 644, 22 Pac. 
 860, holding contract for building for over $1,000 not in writing nor recorded, 
 void, and material men may claim lien without notifying owner to stop payments 
 on contract. 
 
 Cited in Gibbs v. Tally, 133 Cal. 377, 60 L. R. A. 817, 65 Pac. 970, holding stat- 
 utory requirement of bond to one-quarter amount of building contract, unconsti- 
 tutional; McClain v. Hutton, 131 Cal. 136, 63 Pac. 182, holding declaration by 
 material man on contract as if made with owner instead of contractor, proper: 
 McDonald v. Hayes, 132 Cal. 495, 64 Pac. 850, holding extent of lien governed by 
 Code Civ. Proc. 1200, where owner completes after abandonment by contractor; 
 Giant Powder Co. v. San Diego Flume Co. 97 Cal. 266, 32 Pac. 172, sustaining 
 material man's lien for value of materials furnished before filing of contract^ 
 filed within 30 days after acceptance of structure; Clark v. Beyrle, 160 Cal. 31 4 r 
 116 Pac. 739; Butler v. Ng Chung, 160 Cal. 438, 117 Pac. 512, holding 
 that right of claimants to enforce liens against owner depends on whether or 
 not original contractor has money demand against owner, where valid contract 
 for erection of building is filed; Coghlan v. Quartararo, 15 Cal. App. 667, 115 
 Pac. 664, holding that under statute materialman may obtain lien for value 
 of materials furnished without regard to original contract or amount due there- 
 under where plans and specifications referred to in contract were not signed or 
 filed; Chicago Lumber Co. v. Newcomb, 19 Colo. App. 276, 74 Pac. 786, holding 
 mechanics lien law valid though it makes the contractor the agent of the 
 owner for the purposes of the act; Stinson Mill Co. v. Braun, 136 Cal. 124,. 
 57 L.R.A. 726, 89 Am. St. Rep. 116, 68 Pac. 481; Hoffman-Marks-Co, v. Spires, 
 
 154 Cal. 115, 116, 97 Pac. 152, holding owner liable under mechanic's lien 
 law only to the amount fixed by his contract; Stockton Lumber Co. v. Schuler, 
 
 155 Cal. 413, 101 Pac. 307, on same point. 
 
 Cited in notes (20 L.R.A. 562, 565) on payment to contractors or subcon- 
 tractors as affecting lien of subordinate claimants; (14 L.R.A.(N.S.) 1038) 
 on right of subcontractor or materialman to personal judgment against owner;. 
 
1143 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 594 
 
 (39 L.R.A. (N.S.) 869) on constitutionality of statute making owner liable to 
 laborers or materialraen because of noncompliance with provisions for their 
 protection. 
 
 Distinguished in Hampton v. Christensen, 148 Cal. 735, 84 Pac. 200, holding 
 that owner may deduct from contract price, items included in the contract, 
 but which he was compelled to furnish, and such deduction applies to amount 
 of mechanic's liens. 
 Necessity of recording: contract. 
 
 Cited in McClain v. Hutton, 131 Cal. 144, 63 Pac. 182, holding personal judg- 
 ment against owner on unrecorded contractor's contract, not proper; Laidlaw v. 
 Ma rye, 133 Cal. 173, 65 Pac. 391, holding terms of building contract, void for 
 failure to record, control recovery of contractor in assumpsit; Barker v. Doherty, 
 97 Cal. 12, 31 Pac. 1117, holding building contract, void because unrecorded, ad- 
 missible in evidence to determine whether lien was filed before building's comple- 
 tion; Butterworth v. Levy, 104 Cal. 510, 38 Pac. 897, holding record of insufficient 
 memorandum of building contract does not affect lienor's right to proceed as 
 though it were unrecorded; Rebman v. San Gabriel Valley Land & W. Co. 95 
 Cal. 395, 30 Pac. 564, holding that unrecorded building contract is not conclusive 
 evidence of reasonable value of labor and materials furnished under it; Baker 
 v. Lake Land Canal & Irrig. Co. 7 Cal. App. 483, 94 Pac. 773, holding that 
 where contract is for more than $1000 and is not recorded nor in writing, the 
 work done for contractors must be considered as done at the personal instance 
 of the owners. 
 
 Distinguished in Maher v. Shull, 11 Colo. App. 327, 52 Pac. 1115, holding 
 failure to record contract to convey interest in mining claim upon completion 
 of certain development work, not give employees of promisee's contractor lien on 
 property. 
 Conclnsiveness of judgments. 
 
 Cited in note (15 Am. St. Rep. 143) on conclusiveness of judgments in ap- 
 pellate courts. 
 
 6 L. R. A. 591, DONOVAN v. JTJDSON, 81 Cal. 334, 22 Pac. 682. 
 Performance of condition precedent. 
 
 Cited in Southern P. R. Co. v. Allen, 112 Cal. 461, 44 Pac. 796, holding that 
 vendor agreeing to convey upon receiving government patent may sue for pur- 
 chase money becoming due on fixed date without tendering conveyance; Blunt v. 
 Egeland, 104 Minn. 352, 116 N. W. 653, holding tender of performance unneces- 
 sary before action where the contract throws the first act of performance upon- 
 the other party, and citing also annotation on this point. 
 
 Cited in note (12 L. R, A. 245) on rights and remedies of vendor. 
 
 Distinguished in Litchfield v. Cowley, 34 Wash. 569, 76 Pac. 81, holding that 
 where one contracting to purchase land agrees to pay the taxes up to time of 
 purchase, and he fails to do so, the right of action for recovery of the taxes- 
 accrued when the taxes became due. 
 
 6 L. R. A. 594, Re JESSUP, 81 Cal. 408, 22 Pac. 742, 1028, 21 Pac. 976. 
 
 Subsequent hearing of original case, Jessup's Estate, 2 Cof. Prob. Dec. (Cal.) 
 477, on second trial referring to questions decided by appeal as law of case. 
 Jurisdiction to determine contested heirship. 
 
 Cited in Morton v. Morton, 62 Neb. 423, 87 N. W. 182, holding that appeal 
 lies from order denying petition for distribution of personalty. 
 
 Disapproved in Re Fleming, 38 Mont. 60, 98 Pac. 648, holding that question 00 
 
6 L.R.A. 594] L. R. A. CASES AS AUTHORITIES. 1144 
 
 heirship cannot be determined in a proceeding for partial distribution of an 
 
 estate. 
 
 When rehearing may be granted. 
 
 Cited in Merchant's Nat. Bank v. Grunthal, 39 Fla. 394, 22 So. 685, holding that 
 appellate court cannot grant rehearing after filing of its mandate in court below ; 
 Noel v. Smith, 2 Cal. App. 162, 83 Pac. 167, holding that appellate court has 
 power to stay the remittitur and grant rehearing after judgment has been 
 rendered. 
 Evidence of parentage. 
 
 Cited in Watson v. Richardson, 110 Iowa, 691, 80 N. W. 407, holding rumors 
 and current reports as to paternity of claimant, incompetent; Re Gird ; 157 Cal. 
 541, 137 Am. St. Rep. 131, 108 Pac. 499, on sufficiency of evidence to sustain 
 findings as to fraternity of child; State v. Danforth, 73 N. H. 218, 111 Am. St. 
 Rep. 600, 60 Atl. 839, 6 A. & E. Ann. Gas. 557, holding that in prosecution for 
 rape the child resulting therefrom may be exhibited to the jury and attention 
 directed to its resemblance to the .alleged father. 
 
 Cited in footnote to Re Rohrer, 50 L. R. A. 350, which holds acknowledgment 
 of illegitimate child by father's allegation in sworn pleading sufficient, though 
 not expressly made, to admit child to heirship. 
 
 Cited in notes (52 L. R. A. 501, 504) resemblance as evidence of relationship; 
 (35 L. R. A. 802, 805) on use of photographs as evidence; (28 L. R. A. 702) on 
 right to compel accused to exhibit himself for identification; (75 Am. St. Rep. 
 475; 15 L.R.A. (N.S. ) 1162) on effect and collusiveness of photographs in 
 evidence. 
 Construction of legitimacy statutes. 
 
 Cited in Morton v. Morton, 62 Neb. 426, 87 N. W. 182, holding that "adopted 
 into family" refers to public acknowledgment and recognition of child, and not 
 to statutory adoption proceedings; Re Gorkow, 20 Wash. 573, 56 Pac. 385, holding 
 illegitimate entitled to support during minority where paternity established by 
 written acknowledgment; Thomas v. Thomas, 64 Neb. 589, 90 N. W. 630, holding 
 that statutes for relief of illegitimate children should have fair construction; 
 Re DeLaveaga, 4 Cof. Prob. Dec. 410, holding that performance of acts necessary 
 under statute to legitimize child, produces that result regardless of intent; 
 Blythe v. Ayres, 96 Cal. 577, 19 L.R.A. 47, 31 Pac. 915, holding that legitimacy 
 statutes are to be liberally construed; Re DeLaveaga, 4 Cof. Prob. Dec. (Cal.) 
 434, holding that when legitimacy of child is once established subsequent acts 
 cannot affect such status; Re Blythe, 4 Cof. Prob. Dec. 129, on proof of parentage 
 under statute; Ex parte Hayes, 98 Cal. 551, 21 L.R.A. 387, 33 Pac. 337 (dis- 
 senting opinion), on meaning of liberal construction of statute. 
 
 Distinguished in Miller v. Pennington, 218 111. 225, 1 L.R.A. (N.S.) 776, 75 
 N. E. 919, holding oral acknowledgment of paternity of child coupled with fact 
 of marriage with its mother sufficient to fix its legitimacy. 
 
 Overruled in part in Re De Lareaga, 142 Cal. 169, 75 Pac. 790, holding ac- 
 knowledged illegitimate child, not received into father's home, or among his 
 kindred, not legitimated by adoption. 
 Heirship of adopted child. 
 
 Distinguished in Bray v. Miles, 23 Ind. App. 443, 54 N. E. 446, holding adopted 
 child entitled to take under will of grandparent in favor of children's children. 
 Appellate jurisdiction. 
 
 Cited in Re McVay, 14 Idaho, 68, 93 Pac. 28, on definition of ''appellate 
 jurisdiction;" Re Burnette, 73 Kan. 615, 85 Pac. 575, on meaning of "appeal" 
 as affecting appellate jurisdiction. 
 
1345 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 610 
 
 6 L. R. A. 601, CHIPPEWA VALLEY & S. R. CO. v. CHIGAGO, ST. P. M. & O. 
 
 R. CO. 75 Wis. 224, 44 N. W. 17, 25. 
 Contract against public policy. 
 
 Cited in Deering v. Cunningham, 63 Kan. 180, 54 L. R, A. 412, 65 Pac. 263, 
 holding contract for pecuniary consideration, to withdraw opposition to pardon 
 and to use influence in its favor, invalid; Richardson v. Scott's Bluff County, 59 
 Xeb. 410, 48 L. R. A. 298, 80 Am. St. Rep. 682, 81 N. W. 309, holding contract 
 to draft appropriation bill, secure introduction and hearing, and do all things 
 needful to secure passage, for "liberal" contingent compensation, void; Young v. 
 Thompson, 14 Colo. App. 315, 59 Pac. 1030, holding contract to suppress evidence, 
 void; Owens v. Wilkinson, 20 App. D. C. 71, holding agreement involving per- 
 sonal solicitation of congressmen, not enforceable; Herman v. Oconto, 100 Wis. 
 399, 76 N. W. 364, holding evidence of fraud, bribery, and corruption used to at- 
 tain municipal contract, admissible under general allegation; McMillan v. Fond 
 Du Lac, 139 Wis. 381, 120 N. W. 240, holding invalid agreement by which con- 
 " tractor with city, gave another contracting firm in which a city official was 
 interested, valuable concessions; Le Tourneux v. Gilliss, 1 Cal. App. 552, 82 
 Pac. 627, holding void note given for "lobbying" contract. 
 
 Cited in footnotes to Gloucester Isinglass & Glue Co. v. Russia Cement Co. 12 
 L. R, A. 563, which holds agreement to prevent competition between corporations 
 in manufacture of glue under patent, valid; Brooks v. Cooper, 21 L. R. A. 617, 
 which holds void, contract between newspapers for alternate selection and divi- 
 sion of profits of public printing. 
 
 Cited in notes (12 L. R. A. 121) as to contracts not binding, on makers; (30 
 L. R. A. 738) as to validity of contract for services to procure legislation; (8 L. 
 R.A. 497, 6 L.R.A. 615) as to validity of contracts against public policy; (117 
 Am. St. Rep. 521) on contracts, consideration for which has partly failed, or 
 is partly illegal. 
 
 Distinguished in Gilmore v. Roberts, 79 Wis. 453, 48 N. W. 522, holding chattel 
 mortgage to payee "or bearer," not void because taken by "bearer" who furnished 
 the loan, to evade taxes; Houlton v. Xichol, 93 Wis. 400, 33 L. R. A. 168, 57 Am. 
 St. Rep. 928, 67 N. W. 715, holding contract for securing public lands to be opened 
 to settlement as matter of right, valid; Chesebrough v. Conover, 140 N. Y. 387, 35 
 N. E. 633, upholding recovery on contract to draw legislative bills, explain them, 
 and secure their introduction; Dunham v. Hastings Pavement Co. 56 App. Div. 
 249, 67 N". Y. Supp. 632, holding contract to call upon and secure inspection of 
 pavement by municipal officers, not invalid per se. 
 "Lobbying." 
 
 Cited in Burke v. Wood, 162 Fed. 537, holding that "lobbying" signifies to 
 solicit legislators in the lobby or elsewhere with the purpose of soliciting their 
 votes. 
 
 Cited in note (121 Am. St. Rep. 740) on validity of lobbying contracts. 
 Corporation as person. 
 
 Cited in Segnitz v. Garden City Bkg. & T. Co. 107 Wis. 178, 50 L. R. A. 330, 81 
 Am. St. Rep, 830, 83 N. W. 329, and State ex rel. Atty. Gen. v. Portage City Water 
 Co. 107 Wis. 451, 83 X. W. 697, holding that word "person" in legislative enact- 
 ments includes corporations. 
 
 6 L. R. A. 610, GIFFORD v. CORRIGAX, 117 X. Y. 257,. 15 Am. St. Rep. 508, 22 
 
 N. E. 756. 
 Enforcement of lien or claim against third person. 
 
 Cited in Xew York L. Ins. Co. v. Aitkins. 125 X. Y. 070, 26 1ST. E. 732, holding 
 
6 L.R.A. 610] L. R. A. CASES AS AUTHORITIES. 1146 
 
 mortgagee entitled to enforce claim against grantee of mortgagor assuming pay- 
 ment, in spite of subsequent release by grantor; Clark v. Howard, 150 N. Y. 238, 
 44 N. E. 695, holding creditor entitled to enforce claim against another creditor 
 taking conveyance of debtor's property under guaranty of payment of debts; 
 Parraga v. Ribon, 44 App. Div. 96, 61 N. Y. Supp. 1024, holding creditor entitled 
 to enforce claim against party assuming same in consideration of mortgage by 
 debtor; Magill v. Brown Bros. 20 Tex. Civ. App. 676, 50 S. W. 143, holding mort- 
 gagee entitled to security given by mortgagor to second mortgagee as collateral to 
 mortgagor's promise to pay off first mortgage; Binghamton Sav. Bank v. Bing- 
 hamton Trust Co. 85 Hun, 80, 32 X. Y. Supp. 657, holding mortgagee entitled to 
 enforce debt personally against grantee of separate interest where deed expressly 
 assumes payment of mortgage; Cook v. Berrott, 50 N. Y. S. R, 164, 21 N. Y. Supp. 
 358, holding creditors entitled to enforce covenant of third party to debtor, where 
 remedies against debtor omitted in reliance thereon; Williams v. Fisher, 8 Misc. 
 316, 28 N. Y. Supp. 739, holding plaintiff's attorney entitled to enforce promise 
 of defendant to pay counsel fees, contained in release obtained from plaintiff 
 without attorney's knowledge; Glens Falls Gaslight Co. v. Van Vranken, 11 App. 
 Div. 424, 42 N. Y. Supp. 339, holding gas company entitled to sue on contract 
 between city and sewer contractor, providing for payment of damages for injury 
 to gas pipes; Wil ;n v. Whitmore, 92 Hun, 469, 36 N. Y. Supp. 550, holding 
 sureties on statutory bond of contractor to municipality liable to material man; 
 American Nat. Bank v. Klock, 58 Mo. App. 345, holding party taking as collat- 
 eral, notes secured by mortgages assumed by grantees, entitled to enforce same 
 against grantees; Ruohs v. Traders' F. Ins. Co. Ill Tenn. 421, 102 Am. St. 
 Rep. 790, 78 S. W. 85, holding re-insurer directly liable to party insured where 
 .such intention appears from the reinsurance contract; Stites v. Thompson, 98 
 Wis. 331, 73 N. W. 774, holding that purchaser of mortgaged premises who 
 assumes the payment of the mortgage is personally liable for the debt and may 
 be sued without foreclosure; Londner v. Perlman, 129 App. Div. 107, 113 N. Y. 
 Supp. 420 (dissenting opinion), on principle upon which mortgagee may take 
 advantage of agreement between third parties made for his benefit; United 
 States use of Bell v. Empire State Surety Co. 114 App. Div. 759, 100 N. Y: 
 Supp. 247, on obligation to which a person is neither a party nor a privy as 
 giving him no rights under common law. 
 
 Cited in notes (7 L. R. A. 35) on personal liability of vendee assuming encum- 
 brance; (8 L. R, A. 317) on mortgagor conveying premises subject to mortgage 
 debt; (71 Am. St. Rep. 185, 188, 189, 198) on right of third person to sue on 
 contract made for his benefit; (40 L.R.A. (N.S.) 673, 676) on rescission of pur- 
 chase of realty as affecting assumption of mortgage or lien. 
 
 Distinguished in Coleman v. Hiler, 85 Hun, 551, 33 N. Y. Supp. 357; Buffalo Ce- 
 ment Co. v. McNaughton, 90 Hun, 79, 35 N. Y. Supp. 453; Street v. Goodale, 77 
 Mo. App. 321; Townsend v. Rackham, 143 N. Y. 522, 38 N. E. 731, holding 
 that beneficiary of promise cannot enforce same where promisee under no liabil- 
 ity to beneficiary; Barnes v. Hekla F. Ins. Co. 56 Minn. 42, 45 Am. St. Rep. 438. 
 57 N. W. 314, holding insured entitled to sue reinsurer only where contract of lat- 
 ter expressly names insured; Watkins v. Reynolds, 123 N. Y. 218, 25 N. E. 322, 
 holding that equitable mortgagee cannot enforce claim against purchaser without 
 notice from debtor, assuming other debts, though notified before payment, where 
 purchaser not released by subrogated creditors; Blass v. Terry, 156 N. Y. 129, 
 50 N. E. 953, holding presumption that grantee in recorded deed containing cove- 
 nant to pay mortgage, assumed debt, rebutted by proof that grantee is married 
 woman acting through husband and in fact ignorant of covenant; Albere v. Kings- 
 fland, 37 N. Y. S. R. 409, 13 N. Y. Supp. 794, holding defect of parties for want 
 
1147 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 617 
 
 of holder of mortgage, in action by mortgagor against mortgagee for failure of 
 latter to pay same in pursuance of promise, available only on demurrer. 
 Agrency. 
 
 Cited in Cowen v. Winters, 37 C. C. A. 630, 96 Fed. 931, holding railroad au- 
 thorizing another line to issue tickets good over either, bound by latter's contract. 
 Delivery of deed. 
 
 Cited in Townsend v. Rackham, 143 N. Y. 523, 38 N. E. 731, holding record of 
 deed not conclusive evidence of delivery. 
 
 L. R. A. 615, ADAMS COUNTY v. HUNTER, 78 Iowa, 328, 43 N. W. 208. 
 Compensation of public officer In excess of statutory allowance. 
 
 Cited in Ryce v. Osage, 88 Iowa, 564, 55 N. W. 532, holding promise to pay 
 city attorney extra fee for official services, void; Council Bluffs v. Waterman, 86 
 Iowa, 693, 53 N. W. 289, holding aldermen required to act as board of equaliza- 
 tion not entitled to extra compensation; Tracy v. Jackson County, 115 Iowa, 256, 
 88 N. W. 362, holding county treasurer not entitled to extra compensation for 
 extraordinary duties performed in official capacity; State ex rel. Axen v. Meserve, 
 58 Neb. 453, 78 N. W. 721, holding county treasurer entitled only to compensa- 
 tion fixed by law for performance of official duties ; Dorsett v. Garrard, 85 Ga. 737, 
 11 S. E. 768, holding purchaser's agreement to pay commission on sale by county 
 commissioner in performance of duty, illegal; Kollock v. Dodge, 105 Wis. 207, 80 
 N. W. 608 (dissenting opinion), majority holding council may agree to pay city 
 engineer additional compensation for extra official services; Bay v. Davidson, 133 
 Iowa, 690, 9 L.R.A. (N.S.) 1018, 119 Am. St. Rep. 650, 111 N. W. 25, holding 
 salary of councilman fixed by statute and that he has no right to add thereto by 
 profits upon sale of goods to the city; State ex rel. Wiles v. Albright, 11 N. D. 
 30, 88 N. W. 729, denying mandamus to compel county auditor to issue war- 
 rant for salary where he set up that such salary was in excess of that allowed 
 by law; Massie v. Harrison County, 129 Iowa, 281, 105 N. W. 507, holding that 
 money paid to assistant to treasurer not authorized by law, may be recovered; 
 Power v. Douglass County, 75 Neb. 735, 106 N. W. 782, on compensation of 
 public officer being governed by statute; State ex rel. Ludden v. Barton, 88 Neb. 
 584, 130 N. W. 260 (dissenting opinion), on compensation of public officer as 
 depending wholly upon statute. 
 
 Cited in footnote to Buck v. Eureka, 30 L. R. A. 409, which holds void, con- 
 tract to pay city attorney other compensation than salary for conducting litiga- 
 tion for city. 
 Contracts against pnblic policy. 
 
 Cited in footnotes to Brooks v. Cooper, 21 L. R. A. 617, which holds void con- 
 tract between newspapers for alternate selection and division of profits of public 
 printing; Gloucester Isinglass & Glue Co. v. Russia Cement Co. 12 L. R. A. 563, 
 which holds agreement to prevent competition between corporations in manufac- 
 ture of glue under patent, valid. 
 
 Cited in notes (12 L. R. A. 121) on contracts not binding on makers; (6 L. R. 
 A. 602) on contracts void as against public policy. 
 
 L. R. A. 617, CARLISLE v. KILLEBREW, 89 Ala. 329, 6 So. 756. 
 Ownership of crops. 
 
 Cited in Chancellor v. Teel, 141 Ala. 640, 37 So. 665, holding that crops raised 
 on lands by agent of owner belongs to the owner; Wadge v. Kittleson, 12 N. D. 
 462, 97 N. W. 856, holding trespasser on lands not entitled to crop thereon as 
 against owner who recovers possession; Hartshorne v. Ingels, 23 Okla. 542, 23 
 
6 L.R.A. 637] L. R. A. CASES AS AUTHORITIES. 1148: 
 
 L.R.A. (N.S. ) 535, 101 Pac. 1045, holding that one recovering possession of land 
 held adversely is entitled to matured crop of standing corn unsevered at timc- 
 of recovery. 
 
 Cited in note (23 L. R. A. 477) on sale or mortgage of future crops. 
 Judgments; how far conclusive. 
 
 Cited in Kohn v. Haas, 95 Ala. 479, 12 So. 577; Wiggins v. Steiner, 103 Ala. 
 657, 16 So. 8, holding that judgment cannot be altered after term save to correct 
 mere clerical errors, unless void on its face; Carlisle v. Killebrew, 91 Ala. 353, 24 
 Anu St. Rep. 915, 8 So. 355, holding judgment in ejectment following description 
 of land in declaration, not void on its face, because of uncertainty; Lyons v. 
 Stickney, 170 Ala. 141, 54 So. 496, to the point that where question of title arises 
 collaterally, the record of recovery in ejectment is conclusive between same par- 
 ties, on same title, as to question of possession and title; Coleman v. Stewart, 
 170 Ala. 259, 53 So. 1020, holding that former judgment in ejectment fixing in- 
 terests is conclusive of question of title on application for sale of land for par- 
 tition. 
 
 Cited in footnote to Moore v. Snowball, 66 L.R.A. 745, which holds judgment 
 for defendants in trespass to try title to land sold under judgment foreclosing 
 tax lien and to set aside the judgment not bar to subsequent suit to set aside 
 sheriff's sale for irregularities on equitable terms in which title is admitted to 
 be in purchaser. 
 
 Cited in notes (11 L.R.A. (N.S. ) 656) on judgment in criminal action as res 
 judicata in civil action; (11 Eng. Rul. Cas. 15) on conclusiveness of judgment. 
 Admissibility of judgment. 
 
 Cited in footnote to State v. Bradneck, 43 L. R. A. 620, which holds judgment 
 of dismissal in divorce suit for adultery inadmissible in criminal prosecution for 
 nonsupport of wife. 
 Appeal; consideration of objections to evidence. 
 
 Cited in Waxelbaum v. Bell, 91 Ala. 333, 8 So. 571, holding general objection to- 
 admission of evidence, without stating grounds, not available on appeal ; White 
 v. Craft, 91 Ala. 142, 8 So. 420, holding objection to admissibility of evidence dis- 
 regarded on appeal, if grounds do not appear on face of record. 
 
 6 L. R. A. 619, STAUB v. KENDRICK, 121 Ind. 226, 23 N. E. 79. 
 Articles included in baggagre. 
 
 Cited in Runyan v. Central R. Co. 61 N. J. L. 542, 43 L. R. A. 287, 68 Am. St. 
 Rep. 711, 41 Atl. 367, holding that passenger's baggage includes rubbers, gloves, 
 and catalogues and memoranda carried for business purposes of journey, but not 
 package of nails and letter file; Wood v. Cunard S. S. Co. 41 L.R.A. (X.S.) 374. 
 112 C. C. A. 551, 192 Fed. 295, holding that manuscript of manual on Greek 
 grammar which steamship passenger had written, contained in his trunk wag- 
 baggage for loss of which carrier was liable. 
 
 Cited in footnote to Yazoo & M. V. R. Co. v. Blackmar, 67 L.R.A. 646, which 
 holds papers of employer pertaining to business of an insurance agent not bag- 
 gage of the latter. 
 
 Distinguished in Yazoo & M. Valley R. Co. v. Georgia Home Ins. Co. (Yazoo 
 M. Valley R. Co. v. Blackmar), 85 Miss. 13, 67 L.R.A. 648. 107 Am. St. Rep. 
 265, 37 So. 500, holding that business papers belonging to principal and carried 
 by agent for principal's business do not constitute baggage within meaning of 
 carrier's liability for baggage. 
 Carrier's liability for Ions of 1m>ff;ne;e. 
 
 Cited in notes (6 L. R. A. 810) on duty of carriers as bailees; (11 L. R, A. 
 
1149 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 621 
 
 760) on liability of common carrier for loss of baggage (34 L. R. A. 138, 139) 
 on liability of baggage transfer companies; (12 L.R.A. 397) on bailment; (4 
 L.R.A. (X.S.) 1037) on liability of carrier for loss of drummer's baggage; (8 
 L.R.A. (X.S.) 370) on measure of damages for loss or destruction of manu- 
 script, legal papers, etc; (99 Am. St. Rep. 352; 37 L. ed. U. S. 587) on liability 
 for loss of baggage. 
 Who are common carriers. 
 
 Cited in footnote to Wade v. Lutcher & M. Cypress Lumber Co. 33 L. R. A. 
 255, which holds provision making all railroads carriers inapplicable to business 
 corporation operating railroad on own property. 
 
 <3 L. R. A. 621, STATE v. GOODWILL, 33 W. Va. 179, 25 Am. St. Rep. 863, 10 S. 
 
 E. 285. 
 Class legislation; freedom to contract. 
 
 Cited in Dugger v. Mechanics & T. Ins. Co. 95 Tenn. 259, 28 L.R.A. 800, 32 
 S. W. 5, holding act regulating payment of loss under policies excepting cotton 
 in bales, valid; State v. Foster, 22 R. I. 175, 50 L.R.A. 344, 46 Atl. 833, holding 
 act applying to all itinerant peddlers valid; State v. Garbroski, 111 Iowa. 499, 56 
 L.R.A. 572, 82 Am. St. Rep. 524, 82 X. W. 959, holding act requiring license 
 from all peddlers but veterans void; Haigh v. Bell, 41 W. Va. 24, 31 L.R.A. 132, 
 23 S. E. 666, holding act, extending to all counties a provision applicable to 
 one, is valid; Ruhstrat v. People, 185 111. 140, 49 L.R.A. 183, 76 Am. St. Rep. 
 30, 57 N. E. 41, holding that trademark on label with national flag may be used 
 for advertising; West Virginia Transp. Co. v. Standard Oil Co. 50 W. Va. 616, 
 56 L.R.A. 808, 88 Am. St. Rep. 895, 40 S. E. 591, holding that oil company may 
 enlarge its business by buying every competitor; Union Cent. L. Ins. Co. v. 
 Chowning, 86 Tex. 659, 24 L.R.A. 506, 26 S. W. 982, holding act for payment of 
 attorneys fees with penalty on insurer for delay in paying losses, valid; Whit- 
 well v. Continental Tobacco Co. 64 L.R.A. 695, 60 C. C. A. 297, 125 Fed. 458, 
 holding it no violation of anti-trust act to decline to sell, except at prohibitive 
 prices, to one who would not make exclusive contract; Atchison, T. & S. F. R. 
 o. v. Matthews, 174 U. S. 120, 43 L. ed. 918, 19 Sup. Ct. Rep. 609 (dissenting 
 opinion), majority holding that act providing for attorney's fee in actions 
 against railroads for damages by fire, is valid; Gulf, C. & S. F. R. Co. v. Ellis, 165 
 U. S. 165, 41 L. ed. 671, 17 Sup. Ct. Rep. 255, holding act providing for payment 
 of attorney's fees in actions against railroads for killing stock, void; Virginia 
 Development Co. v. Crozer Iron Co. 90 Va. 130, 44 Am. Rep. 893, 17 S. E. 806, 
 holding liens for supplies to manufacturing companies superior to deeds of 
 trust, valid; State v. Smiley, 65 Kan. 285, 69 Pac. 199 (dissenting opinion), 
 majority sustaining statute prohibiting anti-competitive, price-controlling trade 
 agreements; Larabee v. Dolley, 175 Fed. 397, holding state bank guaranty law 
 unconstitutional, because it could not be made applicable to national banks: 
 Laurens v. Anderson, 75 S. C. 65, 117 Am. St. Rep. 885, 55 S. E. 136, 9 A. & 
 E. Ann. Cas. 1003, holding void act providing that confederate soldiers should 
 l>e exempt from payment of occupation license fee; Block v. Schwartz, 27 Utah, 
 398, 65 L.R.A. 312, 101 Am. St. Rep. 971, 76 Pac. 22, 1 A. & E. Ann. Ca>. .V>0. 
 holding unconstitutional act making it misdemeanor for merchant owing debts, to 
 sell part or all of his stock out of the ordinary course of trade without making in- 
 ventory and notifying creditors; Phipps v. Wisconsin C. R. Co. 133 Wis. 160, 
 113 X. W. 456, holding statute permitting the examination of former employees 
 in certain actions unconstitutional where made applicable only to former employ- 
 ees of corporations; De Witt Wire-Cloth Co. v. Xew Jersey Wire-Cloth Co. 16 
 Daly, 531, 14 X. Y. Supp. 277, holding void agreement between manufacturers 
 
6 L.R.A. 621] L. R. A. CASES AS AUTHORITIES. 1150 
 
 fixing minimum price for sale of their products; State v. Leavitt, 105 Me. 82. 2(> 
 L.R.A. (N.S.) 802, 72 Atl. 875, holding valid statute forbidding the digging of 
 clams at certain times by any one except residents of the town in which the 
 clam beds are situated; State v. Duluth Bd. of Trade, 107 Minn. 544, 23 L.R.A. 
 (N.S.) 128, 121 N. W. 395, holding valid rule of Board of Trade regulating: 
 methods of business and fixing charges made by its members; House v. Mayes, 22T 
 Mo. 654, 127 S. W. 305 (dissenting opinion), on invalidity of statute interfering- 
 with liberty of contract between persons sui juris in private business; Shaw v- 
 Marshalltown, 131 Iowa, 143, 10 L.R.A.(N.S.) 832, 104 N. W. 1121, 9 A. & E. 
 Ann. Gas. 1039 (dissenting opinion), on invalidity of statute made applicable 
 only to certain classes where there is no public necessity for the classification; 
 State v. Smiley, 65 Kan. 285, 67 L.R.A. 920, 69 Pac. 199 (Hissenting opinion), on 
 meaning of "liberty" as used in constitution; Coal & Coke R. Co. v. Conley, 67 W. 
 Va. 211, 67 S. E. 613 (dissenting opinion) ; First Ave. Coal & Lumber Co. v- 
 Johnson, 171 Ala. 473, 32 L.R.A. ( N.S. ) 524, 54 So. 598, holding that legislature 
 may not by mere enactment make that a nuisance which is not so in fact. 
 
 Cited in footnotes to Anderton v. Milwaukee, 15 L.R.A. 830, which holds 
 discrimination between lot owners as to compensation for change of street 
 grade void; State v. Snow, 11 L.R.A. 355, which holds regulation for marking 
 packages of lard and substitutes, not violation of due process of law. 
 
 Cited in notes (25 Am. St. Rep. 882) on 14th amendment as to special privi- 
 leges, burdens and restrictions; (27 Am. St. Rep. 564) on state regulation of 
 interstate commerce; (43 Am. St. Rep. 532) on due process of law as applied to 
 insane persons; (53 Am. St. Rep. 572) on definition of police power; (62 Am. 
 St. Rep. 169, 178, 179) on protection of corporations from special and hostile 
 legislation; (78 Am. St. Rep. 237, 245) on acts which legislature may declare 
 criminal; (117 Am. St. Rep. 892) on power to confer exemptions or benefits in 
 consideration of past services. 
 
 Distinguished in Dennis v. Moses, 18 Wash. 592, 40 L.R.A. 314, 52 Pac. 333 
 (dissenting opinion), majority holding that statute requiring appraisement be- 
 fore foreclosure could not be waived in mortgage. 
 Regulations of payment, hours or conditions of labor. 
 
 Cited in State v. Wilson, 7 Kan. App. 446, 53 Pac. 371, holding act regulating 
 weighing of coal at mines, valid; Com. v. Brown, 8 Pa. Super. Ct. 355, 43 W. N. C. 
 75, Affirming 6 Pa. Dist. R, 775, 20 Pa. Co. Ct. 255, 28 Pittsb. L. J. X. 
 S. 181, holding act requiring mining operator to weigh coal before screening, 
 invalid; Re House Bill No. 203, 21 Colo. 28, 39 Pac. 431, holding act regulating 
 the weight of coal at mines, void; People ex rel. Rodgers v. Coler, 166 N. Y. 18, 
 52 L.R.A. 822, 82 Am. St. Rep. 605, 59 N. E. 716, denying power of legislature 
 to fix compensation which cities must pay for labor; Leep v. St. Louis, I. M. & S. 
 R. Co. 58 Ark. 421, 23 L.R.A. 270, 31 Am. St. Rep. 109, 25 S. W. 75, holding 
 act regulating payment of wages of employees of railroads and railway con- 
 tractors, void; S. A. & A. P. R. Co. v. Wilson, 4 Tex. App. Civ. Cas. (White & W.> 
 574, 10 S. E. 287, holding statute imposing penalty on railroads for failure to 
 pay employee within prescribed time, unconstitutional; Low & Rees Printing Co. 
 41 Neb. 140, 24 L.R.A. 708, 43 Am. St. Rep. 670, 59 N. W. 362, holding eight hours 
 law which excepted farm and domestic labor, invalid; Cleveland v. Clements Bros. 
 Constr. Co. 67 Ohio St. 222, 59 L.R.A. 782, 93 Am. St. Rep. 670, 65 N. E. 885, 
 holding statute limiting day's work of laborers on public works to eight hours, 
 unconstitutional; Braceville Coal Co. v. People, 147 111. 71, 22 L.R.A. 342, 37 
 Am. St. Rep. 206, 35 N. E. 62, holding act that companies engaged in certain 
 classes of work should pay weekly wages invalid; State v. Haun, 61 Kan. 157, 
 47 L. R. A. 373, 59 Pac. 340, holding act to secure payment of wages to 
 
1251 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 621 
 
 laborers and others, invalid; Luman v. Kitchens Bros. Co. 90 Md. 27, 46 L. R. 
 A. 396, 44 Atl. 1051, holding act regulating sale of goods by railroads and mining 
 companies to employees in single county, void; Com. v. Perry, 155 Mass. 122, 14 
 L. R. A. 328, 31 Am. St. Rep. 533, 28 N. E. 1126, holding act forbidding imposi- 
 tion of fine on weavers for poor work, invalid; Re Morgan, 26 Colo. 448, 47 L. R. 
 A. 65, 77 Am. St. Rep. 269, 58 Pac. 1071, holding act regulating hours in mines, 
 smelting and ore rediiction works, void; Johnson v. Goodyear Min. Co. 127 Cal. 
 13, 47 L. R. A. 342, 78 Am. St. Rep. 17, 59 Pac. 304, holding act regulating wages 
 of employes of corporations void; Ritchie v. People, 155 111. 104, 29 L. R. A. 82, 
 48 Am. St. Rep. 315, 40 N. E. 454, holding act forbidding employment of females 
 in any factory or workshop, invalid; Frorer v. People, 141 111. 182, 16 L. R. A. 
 496, 31 N. E. 395, holding act forbidding truck system by certain classes of 
 employers, invalid; State v. Loomis, 115 Mo. 318, 21 L. R. A. 792, 22 S. W. 350, 
 holding act prohibiting those engaged in mining and manufacturing from issuing 
 anything but lawful money or negotiable paper in payment of labor, invalid ; 
 State v. Julow, 129 Mo. 173, 29 L. R. A. 258, 50 Am. St. Rep. 443, 31 S. W. 781, 
 holding act prohibiting discharge of labor unionists, invalid; Low v. Rees Print- 
 ing Co. 41 Neb. 146, 24 L. R. A. 708, 43 Am. St. Rep. 670, 59 N. W. 362, holding 
 laborer has right to contract for the price at which he will work; Palmer v. 
 Tingle, 55 Ohio St. 445, 45 N. E. 313, holding act giving lien to laborers or ma- 
 terial men under contract with agent of owner or subcontractor, void; State v. 
 Fire Creek Coal & Coke Co. 33 W. Va, 189, 6 L. R. A. 359, 25 Am. St. Rep. 891, 
 10 S. E. 288, holding act prohibiting miners and manufacturers from selling goods 
 to employee at higher rates than to others, invalid; Dixon v. Poe, 159 Ind. 497, 
 60 L.R.A. 310, 95 Am. St. Rep. 309, 65 N. E. 518, holding act requiring redemp- 
 tion in money of token issued to coal miners for wages assigned, is invalid; 
 Goldfield Mines Co. v. Goldfield Miners' Union Co. 159 Fed. 516; holding uncon- 
 stitutional act providing that employer could not enter into agreement requiring 
 employee not to become a member of a labor union; Toney v. State, 141 Ala. 124, 
 67 L. R A. 287, 109 Am. St. Rep. 23, 37 So. 332, 3 A. & E. Ann. Gas. 319, holding 
 unconstitutional statute restricting right of employee to make contract for labor 
 after abandoning a similar contract : State v. Missouri Tie & Timber Co. 181 
 Mo. 555, 65 L.R.A. 594, 103 Am. St. Rep. 614, 80 S. W. 933, 2 A. & E. Ann. Cas. 
 119, holding invalid act making it unlawful for person or corporation engaged 
 in private business to pay for labor in other than lawful money, Jordon v. 
 State, 51 Tex. Grim. Rep. 539, 11 L.R.A. (N.S.) 606, 103 S. W. 633, 14 A. & E. 
 Ann. Cas. 616, holding void statute making it unlawful for any person or corpo- 
 ration to issue orders payable in merchandise for labor performed; Owens v. 
 State, 53 Tex. Crim. Rep. 108, 126 Am. St. Rep. 772, 112 S. W. 1075, holding 
 occupation tax on persons taking assignments of wages not yet due void where 
 not made applicable to all persons engaged therein : Hitchman Coal & Coke Co. v. 
 Mitchell, 172 Fed. 969, holding unlawful, an attempt by a labor union to interfere 
 with contracts between employer and employee. 
 
 Cited in footnotes to Hancock v. Yaden, 6 L.R.A. 576, which holds statute pro- 
 hibiting employees of mining and manufacturing companies contracting to re- 
 ceive wages in other than money, not unjust discrimination; Braceville Coal Co. 
 v. People, 22 L.R.A. 340, which holds unconstitutional, statute requiring weekly 
 payment of wages by specified corporations. 
 
 Cited in notes (37 Am. St. Rep. 213) on statute regulating relations of master 
 and servant; (122 Am. St. Rep. 909) on constitutionality of statutes regulating 
 time and method of payment of wages; (139 Am. St. Rep. 869) on constitu- 
 tionality of statutes relating to wages. 
 
6 L.R.A. 621 j L. R. A. CASES AS AUTHORITIES. 1152 
 
 Distinguished in State v. Nelson, 52 Ohio St. 103, 26 L.R.A. 320, 39 X. E. 22, 
 holding act requiring street car operators to provide for well-being of employees, 
 valid; State v. Peel Splint Coal Co. 36 W. Va. 822, 17 L.R.A. 401, 15 S. E. 1000, 
 holding act regulating weighing coal without screening valid; Lawrence v. Rut- 
 land R. Co. 80 Vt. 388, 15 L.R.A. (X.S.) 358, 67 Atl. 1091, 13 A. & E. Ann. Cas. 
 475, holding valid act requiring railroads to pay employees weekly in lawful 
 money. 
 
 6 L. R. A. 625, ARMSTRONG v. POMEROY NAT. BANK, 46 Ohio St. 512, ].-> 
 
 Am. St. Rep. 655, 22 N. E. 866. 
 Fictitious payee. 
 
 Followed in Chism v. First Nat. Bank, 96 Tenn. 649, 32 L. R. A. 781, foot- 
 note, p. 778, 54 Am. St. Rep. 863, 36 S. W. 387, holding bank liable for payment 
 of check on forged indorsement of fictitious payee supposed by maker to be 
 genuine. 
 
 Cited in Building & Savings Co. v. Bank, 3 Ohio S. & C. P. Dec. 690, hold- 
 ing indorsement by third person of name of fictitious payee, supposed to be genu- 
 ine by maker, forgery; Tolman v. American Nat. Bank, 22 R. I. 466, 52 L. R. A. 
 879, 84 Am. St. Rep. 850, 48 Atl. 480, holding bank paying on forged name of 
 payee liable, although drawer intended proceeds for person receiving same who 
 represented himself to be person whose name he forged; Shipman v. Bank of 
 State, 126 N. Y. 331, 12 L. R. A. 797, 22 Am. St. Rep. 821, 27 N. E. 371, holding 
 that only paper knowingly made payable to fictitious persons is payable to 
 bearer; Boles v. Harding, 201 Mass. 107, 87 N. E. 481, holding bearer of check 
 made to fictitious payee cannot recover unless he proves maker had knowledge 
 of fiction; Harmon v. Old Detroit Nat. Bank, 153 Mich. 79, 17 L.R.A. (N.S.) 514, 
 126 Am. St. Rep. 467, 116 N. W. 617, holding check payable to fictitious payee 
 and negotiated by maker, valid as payable to bearer only where drawer knowingly 
 draws check to such payee; Seaboard Nat. Bank v. Bank of America, 51 Misc. 
 107, 100 N. Y. Supp. 740, holding where payee of negotiable paper does not rep- 
 resent real person, paper not payable to bearer unless put into circulation by 
 maker with knowledge thereof; Keenan v. Blue, 240 111. 190, 88 N. E. 553 (dis- 
 senting opinion), on negotiability of paper made payable to fictitious person 
 when, put in circulation with knowledge thereof. 
 
 Cited in notes (26 L. R. A. 570) on negotiability of check; (39 L. R. A. 426, 
 429) on use of fictitious name as affecting validity of instrument: (26 L.R.A. 
 570) on negotiability of check payable to fictitious payee; (39 KR.A. 426, 429) on 
 use of fictitious name as affecting validity of instrument; (50 L.R.A. 80, 81, 83) 
 as to who must bear loss on check or bill issued, or indorsed to imposter; (22 
 L.R.A. ( N.S. ) 501, 503 ) as to when negotiable instrument is deemed payable to 
 order of fictitious person within rule which regards such instrument as payable 
 to bearer. 
 
 Distinguished in Crippen v. American Nat. Bank, 51 Mo. App. 518, and 
 Meridian Nat. Bank v. First Nat. Bank, 7 Ind. App. 329, 52 Am. St. Rep. 
 450, 33 N. E. 247, holding paper good in hands of bona fide holder when maker 
 supposed person to whom it was delivered was payee, although fictitious name 
 given. 
 Payment by bank to \vronsr party. 
 
 Cited in State ex rel. Boston Woven Hose Co. v. Lewis, 4 Ohio N. P. 177, 
 holding county treasurer liable for payment of warrant on agent's unauthorized 
 indorsement; J. N. Houston Grocer Co. v. Farmers' Bank, 71 Mo. App. 139. 
 holding as against drawer, payments made by drawee upon forged indorsements 
 
1153 L. R. A. CASES AS AUTHOKITIES. [6 L.R.A. 629 
 
 are at latter's peril; Jordan Marsh Co. v. National Shawmut Bank, 201 
 408, 22 L.R.A.(X.S.) 250, 87 X. E. 740, holding payment of depositor's check by 
 drawee bank in reliance on guaranty by another bank of payee's indorsinent, which 
 was forged, without effort to detect forgery, neglect of duty rendering bank 
 liable to depositor, although depositor is negligent in having fraud practised on 
 him; Hamilton Xat. Bank v. Xye, 37 Ind. App. 467, 117 Am. St. Rep. 333, 77 
 X. E. 295, holding unauthorized indorsement and delivery of check has no effect 
 on payee's title; Houser v. Xational Bank, 27 Pa. Super. Ct. 619, holding bank 
 liable to depositor where it pays check to one who fraudulently pretends to be 
 agent of person by whose name payee is described, the drawer not being neg- 
 ligent; McMahon v. German- American Xat. Bank, 111 Minn. 318, 29 L.R.A. (X.S. ) 
 67, 127 X. W. 7, holding payment of deposit in bank payable to minors or guar- 
 dian to one not in fact the guardian does not relieve bank from liability for the 
 amount; Merrick v. Merrick Xat. Bank, 8 Ohio X. P. 415, 11 Ohio S. & C. P. 
 Dec. 301, on negligence of bank in taking draft payable to firm with which it has 
 had no dealings, without investigation as to relation of one presenting it, to the 
 firm. 
 
 Cited in footnotes to First Xat. Bank v. Xorthwestern Xat. Bank, 26 L. R. 
 A. 289, which holds genuineness of indorsement not admitted by drawee accept- 
 ing or paying check; La Fayette v. Merchants' Bank, 68 L.R.A. 231, which sus- 
 tains right of drawee paying draft on forged indorsement in ignorance of forgery 
 on presentation bearing indorsement of collecting bank to recover back amount so 
 paid. 
 
 Cited in note (50 L. R. A. 80, 81, 83) as to who must bear loss on check or 
 bill issued or indorsed to impostor. 
 
 Distinguished in Burnet Woods Bldg. & Sav. Co. v. German Xat. Bank, 3 Ohio 
 N. P. 99, 4 Ohio Dec. 303, holding that depositor in business requiring draw- 
 ing of checks owes banke.r duty of ordinary care; Central Xat. Bank v. Xational 
 Metropolitan Bank, 31 App. D. C. 399, 17 L.R.A. (X.S.) 523, holding one who 
 cashed checks on indorsement by payee of assumed name in which he fraudulently 
 obtained it from maker and who receives amount from drawee, cannot be com- 
 pelled to return to drawee what he received, on discovery of fraud and return by 
 drawee of amount to drawer's account. 
 
 6 L. R. A. 629, BOSTOX v. SIMMONS, 150 Mass. 461, 15 Am. St. Rep. 230, 
 
 23 X. E. 210. 
 Civil' action in nature of conspiracy. 
 
 Cited in Root v. Rose, 6 X. D. 580, 72 N. W. 1022, holding that conspiracy 
 will not of itself transmute nonactionable into actionable torts; More v. Finger, 
 128 Cal. 319, 60 Pac. 933. holding that conspiracy, not being gist of action for 
 wrong, need not be proved; Porter v. Mack, 50 W. Va. 584, 40 S. E. 459, 
 holding that action on case in nature of conspiracy has been substituted for 
 common-law actions of conspiracy: Bilafsky v. Conveyancers Title Ins. Co. 102 
 Ma* s. 506, 78 X. E. 534, holding where allegations as to conspiracy are grounded 
 on fact that what is alleged to have been done was done jointly, such acts are 
 not actionable unless actionable had they been done by defendants severally : 
 Lantin v. Goodnow, 207 Mass. 303, 93 X. E. 843, holding that widow and children 
 of testator who adopted fraudulent scheme of testator with knowledge of its na- 
 ture and assisted in carrying it through for their benefit are liable for damage 
 suffered from it; Woodruff v. Hughes. 2 Ga. App. 364, 58 S. E. 551, holding gist 
 of action is tort and damages, and not conspiracy set out : Von ATI v. Magen- 
 lieimer, 126 App. Div. 262, 110 X. Y. Supp. 629, holding gist of action is damage 
 L.R.A. Au. Vol. I. 73. 
 
6 L.R.A. 629] L. R. A. CASES AS AUTHORITIES. 1154 
 
 and averment and proof of conspiracy is only important in order to join all de- 
 fendants. 
 
 Distinguished in Boonville Nat. Bank v. Blakey, 166 Ind. 450, 76 X. E. 529, 
 holding party who seeks to maintain bill in equity on theory of conspiracy be- 
 tween bankrupt and preferred creditor, joined as defendants, but proves no con- 
 spiracy, not entitled to decree, though he established cause of action warranting 
 judgment at law. 
 Duty of person actingr In position of trust. 
 
 Cited in Alvord v. Cook, 174 Mass. 127, 54 N. E. 499, upholding actions to 
 recover commissions where brokers for seller and buyer agreed to divide com- 
 missions; Land, Log & Lumber Co. v. Mclntyre, 100 Wis. 261, 69 Am. St. Rep. 
 925, 75 N. W. 969, holding county supervisors personally liable for audit of 
 claims they have no right to audit; Emmons v. Alvord, 177 Mass. 470, 59 N. E. 
 126, holding that confidential relations make tort of acts that would otherwise 
 not be so; Revere Water Co. v. Winthrop, 192 Mass. 458, 78 N. E. 497, holding 
 selectmen of town called on to act on proposition to purchase water plant for 
 town, they are bound in good faith to buy at lowest price and are personally 
 liable for pecuniary loss resulting from correct action or act in bad faith. 
 
 Cited in note (2 Eng. Rul. Gas. 518) on right of principal to profits made and 
 advantages gained by agent in execution of agency. 
 Recovery from wrongdoers. 
 
 Cited in Emmons v. Alvord, 177 Mass. 470, 59 N. E. 126, holding those who 
 assist in agent's tort jointly liable; Illinois C. R. Co. v. Foulks, 191 111. 69, 60 
 N. E. 890, holding that injured person can take judgment against which of tort 
 feasors he chooses; Emmons v. Alvord, 177 Mass. 470, 59 N. E. 126, holding 
 measure of damages for tort in sale, difference between what owner received 
 and what he ought to have received; Brack ett v. Perry, 201 Mass. 504, 87 N. E. 
 903, holding in action for fraudulent misrepresentations, gist of action is dam- 
 age wrongfully done plaintiff. 
 
 Cited in footnote to Bonte v. Postell, 51 L. R. A. 187, which denies joint lia- 
 bility of different lot owners for injury by discharge of surface water. 
 
 6 L. R. A. 632, LEONARD v. LEONARD, 151 Mass. 151, 21 Am. St. Rep. 437, 
 
 23 N. E. 732. 
 Imprisonment as affecting: marital relation. 
 
 Cited in note (31 L. R. A. 519) on effect of conviction and sentence of either 
 husband or wife upon marriage relation. 
 Construction of term "prison." 
 
 Cited in Sturtevant v. Com. 158 Mass. 600, 33 N. E. 648, holding in statute 
 imposing heavier punishment upon person twice before "committed to prison in 
 this or any other state," word "prison" not limited to state prison. 
 
 6 L. R. A. 633, COM. USE OF ALLEGHENY COUNTY v. MILLER, 131 Pa. 
 
 118, 18 Atl. 938. 
 Exercise of police pofver. 
 
 Cited in footnote to Com. v. Roberts, 16 L. R. A. 401, which holds requiring 
 water closets in human habitation within police power. 
 Regulation of sale of articles of food. 
 
 Cited in Com. v. Hendley, 7 Pa. Super. Ct. 359, 28 Pittsb. L. J. N. S. 401, 
 holding restaurant keeper furnishing oleomargarine as part of meal, liable for 
 penalty. 
 
 Cited in footnotes to State v. Hanson, 54 L. R. A. 468, which holds sale of 
 
1155 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 639 
 
 unlabeled cottolene forbidden by statute against selling unlabeled imitation of 
 lard; State ex rel. Monnett v. Capital City Dairy Co. 57 L. R. A. 181, which 
 sustains statute forbidding sale of unmarked oleomargarine; State v. Myers, 35 
 L. R. A. 844, which sustains statute requiring oleomargarine and artificial but- 
 ter to be colored pink; Frost v. Chicago, 49 L. R. A. 657, which holds void, 
 ordinance prohibiting colored netting over package of fruit, etc.; State v. Lay- 
 ton, 62 L. R. A. 164, which sustains statute prohibiting manufacture or sale of 
 baking powder containing alum; Arbuckle v. Blackburn, 65 L.R.A. 864, which 
 upholds statute prohibiting the coloring, coating, or polishing of article intended 
 for food whereby damage or inferiority is concealed. 
 
 Cited in note (11 L. R. A. 533) on regulation and prohibition of manufacture 
 and sale of oleomargarine. 
 
 6 L. R. A. 636, FRIEND v. PITTSBURGH, 131 Pa, 305, 17 Am. St. Rep. 811, 
 
 18 Atl. 1060. 
 Place of payment. 
 
 Cited in Skinker v. Butler County, 112 Mo. 337, 20 S. W. 613, holding county 
 may, as part of instrument, designate place of payment outside county; Re 
 Boyle's Lunacy, 20 Pa. Super. Ct. 6, holding municipality not required to seek 
 creditors for purpose of making payment. 
 
 Cited in note (51 Am. St. Rep. 851) on place of payment of municipal bonds. 
 Interest. 
 
 Cited in Vider v. Chicago, 164 111. 357, 45 N. E. 720, holding municipal cor- 
 poration not liable for interest except in express contract; King v. Brown, 31 
 Pa. Super. Ct. 51, on right to collect interest from municipality on award of 
 viewers for damages for grading street. 
 
 6 L. R. A. 637, WILLIAMS v. WILLIAMS, 89 Ky. 381, 12 S. W. 760. 
 
 Widow's right of dower. 
 
 Cited in notes (18 L.R.A. 79) on power of husband or his creditors to defeat 
 wife's right of dower; (39 Am. St. Rep. 31) on time for assignment of dower. 
 Adverse possession. 
 
 Cited in Lucas v. White, 120 Iowa, 738, 98 Am. St. Rep. 380, 95 N. W. 209, 
 holding statute does not begin to run against wife's right of dower until death 
 of husband; Lucas v. Whitacre, 121 Iowa, 253, 96 N. W. 776, holding adverse 
 possession will not operate to extinguish wife's dower, though complete as 
 against husband. 
 Statute of limitations. 
 
 Cited in Davis v. Brown, 98 Ky. 489, 36 S. W. 534, holding action for con- 
 tinuous breach of parol contract barred after lapse of five years from date of 
 contract. 
 
 6 L. R. A. 639, WRIGHT v. GRIFFITH, 121 Ind. 478, 23 N. E. 281. 
 Unaccepted offer. 
 
 Cited in Pennsylvania Co. v. Plotz, 125 Ind. 31, 24 N. E. 343, holding mere 
 proposition or offer not acted on or accepted, not a contract. 
 Guaranty. 
 
 Cited in Conduitt v. Ryan, 3 Ind. App. 5, 29 N. E. 160, holding words "I 
 hereby guarantee payment when due, etc.," an absolute, continuing guaranty; 
 Shearer v. R. S. Peale & Co. 9 Ind. App. 288, 36 N. E. 455, construing words 
 "hereby guarantees payment of amount," as original undertaking; Lane v. 
 Mayer, 15 Ind. App. 384, 44 N. E. 73, holding guaranty, "I hereby agree to hold 
 
6 L.R.A. 639] L. R. A. CASES AS AUTHORITIES. 1156 
 
 myself responsible for, and agree to pay for," original undertaking; Bryant v. 
 Stout. 16 Ind. App. 393, 44 N. E. 68, holding bond conditioned upon faithful 
 performance of contract of service absolute, continuing undertaking; Woody v. 
 Haworth, 24 Ind. App. 637, 57 N. E. 272, holding words "I guarantee payment 
 of written note when due," direct and absolute engagement; Nading v. McGregor, 
 121 Ind. 470, 6 L. R. A. 687, 23 N. E. 283, holding promise to do what another 
 is bound to do, in case of latter's failure, original undertaking; Metzger v. 
 Hubbard, 153 Ind. 192, 54 N. E. 761, holding words "I guarantee payment of," 
 direct and absolute undertaking; Walter A. Wood Mowing & Reaping Co. v. 
 Farnham, 1 Okla. 377, 33 Pac. 867, holding guarantor of promissory note liable 
 on maturity without notice of default; Miller v. State, 35 Ind. App. 384, 74 
 N. E. 260, holding where party furnishes supplies, labor and material to sub- 
 contractor who is treated as debtor until he absconds, undertaking of contractor 
 to liquidate indebtedness not original .undertaking but promise to answer for 
 default of another. 
 
 Cited in note (105 Am. St. Rep. 524) on contract of guaranty. 
 Notice to guarantor. 
 
 Cited in Jenkins v. Phillips, 18 Ind. App. 567, 48 N. E. 651, holding notice of 
 advances after notice of acceptance of guaranty bond unnecessary; Neagle v. 
 Sprague, 63 111. App. 27, holding where guarantor would know that guaranty 
 would be accepted, notice unnecessary; Sullivan v. Cluggage, 21 Ind. App. 673, 
 52 N. E. 110, holding notice of default of principal unnecessary in collateral guar- 
 anty; Closson v. Billman, 161 Ind. 616, 69 N. E. 449, holding notice of accept- 
 ance of guaranty executed contemporaneously with bond guaranteed, unnecessary ; 
 Stewart v. Knight &. J. Co. 166 Ind. 503, 76 N. E. 743, holding guarantor not 
 entitled to notice of acceptance where other party accepts direct, original promise 
 of guarantor to pay for goods sold third person. 
 
 Cited in footnote to Cowan, M. & Co. v. Roberts, 65 L.R.A. 729, which holds 
 notice of acceptance not necessary to bind one guaranteeing debt with provision 
 that guaranty shall remain in force until full payment or discharge in writing. 
 
 Cited in note (16 L.R.A. (N.S.) 356) on necessity of notice of acceptance to 
 bind guarantor. 
 
 Disapproved in German Sav. Bank v. Drake Roofing Co. 112 Iowa, 188, 51 
 L. R. A. 761, footnote p. 758, 84 Am. St. Rep. 335, 83 N. W. 960, holding notice 
 of acceptance necessary to bind guarantors of payment, to bank, of notes, etc., to 
 third person. 
 Continuing: guaranty. 
 
 Cited in Presbyterian Bd. of Publication & S. S. Work v. Gilliford, 139 Ind. 
 529, 38 N. E. 404, holding guaranty limited in amount but not in time, con- 
 tinuing guaranty; S. Hamill Co. v. Woods, 94 Iowa, 250, 62 N. W. 735, holding 
 parol evidence admissible to show whether guaranty "to see that same is paid 
 as if it was my debt" is or is not continuing guaranty; Frost v. Standard Metal 
 Co. 116 111. App. 646, holding guaranty will be regarded as continuing unless 
 words in which it is expressed fairly imply that liability is to be limited. 
 Construction of instruments together. 
 
 Cited in Closson v. Billman, 161 Ind. 614, 69 N. E. 449, holding bond constru- 
 able with contract therein referred to; Closson v. Billman, 161 Ind. 614, 6!) 
 N. E. 449, holding building contract and bond conditioned on construction and 
 completion of work according to contract should be construed togetner. 
 
3157 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 646 
 
 6 L. R. A. 641, HERR v. DENVER MILL. & MERCANTILE CO. 13 Colo. 406, 
 
 22 Pac. 770. 
 Sales Necessity of continued change of possession. 
 
 Cited in Baur v. Beall, 14 Colo. 386, 23 Pac. 345, holding delivery of personal 
 property by vendor reassuming possession as agent passes no title; Springer 
 v. Kreeger, 3 Colo. App. 491, 34 Pac. 269, holding sale without actual or con- 
 structive change of possession void as to vendor's creditors; Anders v. Barton, 
 3 Colo. App. 327, 33 Pac. 142, holding bill of sale without giving possession of 
 chattels passes no title; Allen v. Steiger, 17 Colo. 557, 31 Pac. 226, holding sale 
 unaccompanied by delivery and change of possession conclusively presumed 
 fraudulent. 
 
 Cited in footnote to Feeley v. Boyd, 65 L.R.A. 943, which holds immediate 
 delivery followed by actual and continued change of possession of fruit in bins 
 shown by purchaser sending representative the same evening to take possession, 
 and sending man the next morning to prepare for shipment. 
 
 Cited in notes (25 Am. St. Rep. 186; 35 L. ed. U. S. 707) on necessity and 
 sufficiency of delivery to transfer title. 
 Right of person paying: off encumbrance, on defective security. 
 
 Cited in note (5 L.R.A. (N.S.) 843) on right of one advancing money to pay 
 off lien or encumbrance upon security which proves defective to be subrogated 
 thereto. 
 
 6 L. R. A. 646, ATCHISON, T. & S. F. R. CO. v. LINDLEY, 42 Kan. 714, 16 
 
 Am. St. Rep. 515, 22 Pac. 703. 
 Second appeal in 47 Kan. 432, 28 Pac. 201. 
 Contributory negligence; voluntarily assuming position of danger. 
 
 Cited in Ft. Scott, W. & W. R. Co. v. Sparks, 55 Kan. 295, 39 Pac. 1032, hold- 
 ing that stock shipper injured while standing on top of car when in motion, 
 cannot recover for injuries; Walker v. Green, 60 Kan. 294, 56 Pac. 477, holding 
 that shipper riding in freight car cannot recover for injuries from negligent 
 handling of car; Kimball v. Palmer, 25 C. C. A. 396, 42 U. S. App. 399, 80 Fed. 
 241, holding shipper injured in attempting to climb to top of box car, guilty of 
 contributory negligence; Gross v. South Chicago City R. Co. 73 111. App. 222, 
 holding trespasser riding on top of freight car and injured through contact with 
 trolley wire of electric railway, guilty of contributory negligence; Church v. 
 Chicago, M. & St. P. R. Co. 50 Minn. 220, 16 L. R. A. 863, 52 N. W. 647, holding 
 bystander assisting in switching cars at request of "head switchman," not em- 
 ployee, and assumes risk of position; Kelly v. Tyra, 103 Minn. 180, 17 L.R.A. 
 (N.S.) 342, 114 N. W. 750, holding where servant of one master has interest 
 in work in any proper capacity and at request of servant of another undertakes 
 to assist in work he does not assume risk of carelessness of latter servant: Win- 
 ters v. Baltimore & 0. R. Co. 163 Fed. 108, holding one who climbs to top of box 
 car and rides there, although according to custom known to foreman, cannot 
 recover for injury from derailment where he would not have been injured had 
 he remained in caboose; Fischer v. Columbia & P. S. R. Co. 52 Wash. 470, 100 
 Pac. 1005, holding one who, fearing he will not have time to reach caboose, 
 enters engine on engineer's invitation, not a passenger, nor one to whom carrier 
 owed affirmative duty; Winters v. Baltimore & 0. R. Co. 100 C. C. A. 462, 177 
 Fed. 51, holding where train is moving at slow rate of speed on switch track, 
 track hand being carried on work train not guilty of contributory negligence 
 as matter of law to ride on top of cars, where that is habit of workmen, and 
 brakeman and conductor did not object thereto: Kimball v. Palmer. 80 Fed. 241, 
 holding it contributory negligence for shipper of poultry on freight train to 
 
6 L.R.A. 646] L. R. A. CASES AS AUTHORITIES. 1158 
 
 attempt to get on top of box car next to caboose for purpose of walking to car 
 containing his shipment, while train is in motion. 
 
 Cited in note (22 L.R.A. 664) on assumption by volunteer of risks of service; 
 (40 L.R.A. (X.S.) 1181) on liability of master for injury to emergency assistant. 
 
 Distinguished in Leslie v. Atchison, T. & S. F. R. Co. 82 Kan. 157, 27 L.R.A. 
 (N.S. ) 650, 107 Pac. 765, holding shipper of cattle using ticket requiring him 
 to remain in safe place during movement of train and forbidding his getting 
 on or off caboose while train is in motion, can recover for injuries received in 
 getting on moving train at invitation of conductor, where during time train was 
 standing still he alighted to examine stock and could not reach caboose after 
 train had started, and boarded cars before caboose was reached. 
 Duty not to -vvaiitonly injure another. 
 
 Cited in Hendryx v. Kansas City, Ft. S. & G. R. Co. 45 Kan. 379, 25 Pac. 893, 
 holding that only duty railroad owes trespasser on train is not wantonly to in- 
 jure him; Houck v. Chicago & A. R. Co. 116 Mo. App. 570, 92 S. \Y. 738, holding 
 master not answerable for negligent or wilful tort of servant outside general 
 scope of his employment, but holding master liable for injury to boy in engine 
 room where he has been invited there by engineer. 
 
 Cited in note (22 L. R. A. 796) on rights of person riding on pass or contract 
 for free passage. 
 
 6 L. R. A. 653, CORT v. LASSARD, 18 Or. 221, 17 Am. St. Rep. 726, 22 Pac. 
 
 1054. 
 Contracts for personal services. 
 
 Cited in notes (11 L. R. A. 550) on special services for professional labor; (12 
 L. R. A. 497) on assignability of contracts for personal services requiring special 
 skill and knowledge; (6 L.R.A.(N.S.) 1138, 1143, 1144) on enforcement of 
 contract of service by equity; (68 Am. St. Rep. 762) on specific performance 
 of contracts of actors where decree cannot be enforced; (6 Eng. Rul. Cas. 665, 
 666) on refusal to enforce specific performance of contract for services, the 
 execution of which the court cannot superintend. 
 Injunction agrainst breach of contract. 
 
 Cited in Philadelphia Base-Ball Club v. Lajoie, 10 Pa. Dist. R. 314, Reversed 
 in 202 Pa. 210, 58 L.R.A. 227, 51 Atl. 793, holding court would not restrain 
 playing of baseball upon another team, although player was expert and his 
 withdrawal would weaken team and affect attendance at games; Donker & W. 
 Co. v. Vance, 2 111. C. C. 15, holding injunction will not lie to restrain breach 
 of contract by servant in leather goods department of employer's business; 
 Rabinovich v. Reith, 120 111. App. 415, holding court will not restrain breach 
 of contract of employee as millinery trimmer; Columbia College v. Tunberg, 64 
 Wash. 21, 116 Pac. 280, holding that injunction does not lie to prevent breach 
 of contract to give personal service to school of music where services were not 
 special or extraordinary, and another teacher was procured. 
 
 Cited in footnotes to Metropolitan Exhibition Co. v. Ewing, 7 L. R. A. 381, 
 which holds contract may be practically enforced by enjoining breach of negative 
 promise; Philadelphia Ball Club v. Lajoie, 58 L. R. A. 227, which authorizes 
 injunction against baseball player violating contract to play for certain organi- 
 zation, for specified time, and meanwhile not play for other club. 
 
 Cited in notes (7 L. R. A. 779; 11 L. R. A. 116) on agreements not specifically 
 enforceable; (8 L. R. A. 626) on right to specific performance when remedy at 
 law adequate; (90 Am. St. Rep. 648, 649) on injunction against breach of 
 contract. 
 
 Distinguished in E. Jaccard Jewelry Co. v. O'Brien, 70 Mo. App. 436, holding 
 
1159 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 656 
 
 that equity will not enjoin breach of contract for services of salesman of average 
 ability; Chain Belt Co. v. Von Spreckelsen, 117 Wis. 122, 94 N. W. 78, dis- 
 solving preliminary injunction against violation of contract for services, where 
 defendant's answer alleges others in plaintiff's employ have same knowledge 
 and skill; Eureka Laundry Co. v. Long, 146 Wis. 210, 212, 35 L.R.A.(X.S.) 
 123, 131 N. W. 412, holding that injunction lies to prevent breach of contract 
 as driver of laundry wagon, which contained stipulation to effect that during 
 such employment or for two years thereafter defendant would not solicit laundry 
 trade for others nor engage in laundry business. 
 
 Disapproved in H. W. Gossard Co. v. Crosby, 132 Iowa, 165, 6 L.R.A.(N.S.) 
 1131, 109 N. W. 483, holding equity will not restrain work for others in absence 
 of express covenant not to work for another. 
 Implied covenants. 
 
 Cited in Southwest Missouri Light Co. v. Joplin, 101 Fed. 28, holding grant 
 of twenty year electric light franchise implies covenant not to compete within 
 that time. 
 
 6 L. R. A. 656, MOAKLER v. PORTLAND & W. VALLEY R CO. 18 Or. 189, 
 17 Am. St. Rep. 717, 22 Pac. 948. 
 
 Contributory negligence. 
 
 Cited in Benedict v. Minneapolis & St. L. R. Co. 86 Minn. 228, 57 L. R. A. 
 641, 91 Am. St. Rep. 345, 90 N. W. 360, holding protrusion of passenger's head 
 beyond side of car, from curiosity, contributory negligence; Emison v. Owyhee 
 Ditch Co. 37 Or. 581, 62 Pac. 13, holding in action for overflowing lands, plain- 
 tiff's method of irrigation causing accumulation of water on low land, not con- 
 tributory negligence; Carrico v. West Virginia C. & P. R. Co. 39 W. Va. 99, 
 19 S. E. 571, holding protrusion of passenger's arm from window not enhancing 
 danger of injury, does not affect railroad's liability; Zumault v. Kansas City 
 Suburban Belt R. Co. 175 Mo. 311, 74 S. W. 1015, holding intending passenger 
 sitting on station platform where passing train could strike him, facing in 
 direction opposite from whence train was expected, guilty of contributory negli- 
 gence; Cleveland, C. C. & St. L. R. Co. v. Hadley, 170 Ind. 207, 16 L.R.A. (N.S.) 
 531, 82 N. E. 1025, 16 A. & E. Ann. Cas. 1, holding passenger not guilty of con- 
 tributory negligence as matter of law in raising window in car which is moving 
 at high speed, and protruding arm through it, whereby it is injured by window's 
 -fall; Winters v Baltimore & O. R. Co. 100 C. C. A. 462, 177 Fed. 49, holding 
 workman riding on top of car, such being custom and being with knowledge 
 and consent of servants in charge of train, the train moving at slow rate of 
 speed, not guilty of contributory negligence as matter of law. when injured by 
 derailment of train from defect in crossing; Cincinnati Traction Co. v. Forrest. 
 73 Ohio St. 5, 75 N. E. 818, holding contributory negligence is want of ordinary 
 care by person injured by negligence of another, concurring with such negligence; 
 Birsch v. Citizens' Electric Co. 36 Mont. 578, 93 Pac. 940, holding it not con- 
 tributory negligence where hod carrier in construction of building while working 
 on high scaffolding steps on mortar board causing him to slip whereby he in- 
 voluntarily throws out his hands one of which strikes defendant's highly charged 
 electric wire, causing him to fall to ground; Smith v. St. Louis Transit Co. 
 120 Mo. App. 333, 97 S. W. 218, holding passenger on street car not guilty of 
 contributory negligence as matter of law in exposing elbow to slight extent 
 from window, or resting same on window sill within car; Memphis Street R. 
 Co. v. Roe, 118 Tenn. 609, 102 S. W. 343, holding plaintiff who drives along 
 street car tracks where he might have driven on opposite side of street and 
 been out of danger, the night being dark and dusty so that he could not see 
 
6 L.R.A. 656] L. R. A. CASES AS AUTHORITIES. 1160 
 
 for thirty or forty feet in front of him, guilty of contributory negligence barring 
 recovery; Murphy v. W abash R. Co. 228 Mo. 149, 128 S. W. 481 (dissenting 
 opinion), on what constitutes contributory negligence. 
 
 Cited in notes (16 L.R.A. 93) on passenger's negligent exposure of person at 
 car window; (24 Am. St. Rep. 761) on contributory negligence of passenger; 
 (116 Am. St. Rep. 722, 723) on negligence of passenger in projecting a member 
 of body out of car window. 
 Wlien question for jury. 
 
 Cited in Gradert v. Chicago & N. W. R. Co. 109 Iowa, 551, 80 N. W. 559,. 
 holding contributory negligence of passenger leaving car to avoid collision, ques- 
 tion for jury. 
 
 6 L. R. A. 661, LEATHERS v. JANNEY, 41 La. Ann. 1120, 6 So. 884. 
 Corporation's right to sell entire property. 
 
 Cited in Holmes & G. Mfg. Co. v. Holmes & W. Metal Co. 127 N. Y. 259, 21 
 Am. St. Rep. 448, 27 N. E. 831, holding that corporation may, with stockholders' 
 consent, sell all its property, taking stock in payment; Phillips v. Providence 
 Steam Engine Co. 21 R. I. 305, 45 L. R. A. 562, 43 S. E. 598, holding that cor- 
 poration may dispose of property by majority vote, in absence of fraud; Slattery 
 v. Greater New Orleans Realty & Development Co. 128 La. 874, 55 So. 558, hold- 
 ing that corporation is not prohibited by law from selling all its property at 
 private sale. 
 
 Cited in notes (103 Am. St. Rep. 566) on right of corporation to sell its 
 property for stock or bonds of other corporations; (103 Am. St. Rep. 570) on 
 effect of sale of entire assets of corporation. 
 Dealings between corporations having same person as director. 
 
 Cited in Colorado Fuel & Iron Co. v. Western Hardware Co. 16 Utah, 11, 50 
 Pac. 628, holding assignment preferring another corporation not invalidated by 
 vote of director common to both, not affecting result. 
 
 Cited in notes (33 L.R.A. 789) on contracts between corporations having com- 
 mon directors or officers; (36 L. ed. U. S. 1080) on fiduciary relations of 
 officers and their dealings with corporate property. 
 Pledgees of stock bound by stockholders' action. 
 
 Cited in Spokane v. Amsterdamsch Trustees Kantoor, 22 Wash. 178, 60 Pac. 
 141, holding pledgees of stock bound by action of shareholders authorizing con- 
 veyance of property; Elyea v. Lehigh Salt Min. Co. 45 App. Div. 236, 60 N. Y. 
 Supp. 1050, holding that pledgee of stock cannot have transfer of corporate 
 property with assent of record stockholders set aside; Cohen v. Big Stone Gap 
 Iron Co. Ill Va. 474, 69 S. E. 359, Ann. Cas. 1912A, 203, holding that pledgee 
 of stock who permits pledger to vote stock is estopped by action of pledger in. 
 consenting to sale of corporate property. 
 
 6 L. R. A. 663, LEMON v. GRAHAM, 131 Pa. 447, 19 Atl. 48. 
 Intention of parties. 
 
 Cited in Interstate Bldg. & L. Asso. v. Agricola, 124 Ala. 478, 27 So. 247, hold- 
 ing that intention to convey may be deduced from deed referred to in writing un- 
 der construction. 
 
 Cited in notes (24 Am. St. Rep. 714; 14 Eng. Rul. Cas. 798) on intent as 
 controlling in construing deed. 
 Informal instrument transferring title. 
 
 Cited in Wisdom v. Reeves, 110 Ala. 431, 18 So. 13, holding that assignment 
 of "within title" written on deed passes legal title; Robb v. New York & C. 
 
1161 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 667 
 
 Gas Coal Co. 216 Pa. 420, 65 Atl. 938, on right to consider surrounding circum- 
 stance and conduct of parties afterward in determining meaning of instrument 
 Testing life estate. 
 
 Cited in note (31 Am. St. Rep. 28) on sufficiency of words to constitute 
 conveyance. 
 
 Distinguished in Peirce v. Hubbard, 48 Phila Leg. Int. 264, 10 Pa. Co. Ct. 65, 
 28 W. N. C. 196, holding devise to daughter "and in case of her death without is- 
 sue . . . then to testator's heirs," passes life estate. 
 
 6 L. R. A. 665, PERRY COUNTY v. CONWAY COUNTY, 52 Ark. 430, 12 S. W. 
 
 877. 
 Legislative power to impose debt on municipality. 
 
 Followed in Garland County v. Hot Springs County, 68 Ark. 92, 56 S. W. 636, 
 holding subsequent act making detached territory liable for portion of county 
 debt, valid; Cullman County v. Blount County, 160 Ala. 324, 49 So. 315, up- 
 holding similar legislative apportionment of cost of a bridge. 
 
 Cited in Re Fremont & B. H. Counties, 8 Wyo. 22, 54 Pac. 1073, holding that 
 provision for apportionment of indebtedness upon division of county may be made 
 by general law passed before division is made; Johnson v. San Diego, 109 Cal. 
 478, 30 L. R. A. 181, 42 Pac. 249, holding that legislature may readjust burden 
 of municipal indebtedness after division of city as equities may suggest; Board 
 of Education v. State, 64 Kan. 11, 67 Pac. 559, sustaining retroactive law requir- 
 ing city to assume school bonds issued by annexed district; Desha County v. 
 Chicot County, 73 Ark. 395, 84 S. W. 625, holding it valid for legislature pro- 
 visionally to apportion a pending liability when readjusting county boundaries 
 by annexing and detaching territory; Denver v. Adams County, 33 Colo. 9, 77 
 Pac. 858, holding legislature on erection of a new city and county and division 
 of the remainder of the old county into two might apportion the debts of the 
 previous county; State ex rel. Pritchard v. Grefe, 139 Iowa, 31, 117 N. W. 13, 
 holding it lawful for legislature to unite, on approval by vote, all of numerous 
 city school districts into one. 
 
 Cited in note (20 Am. St. Rep. 678) on power of legislature to require new 
 counties to pay proportion of debt of old counties. 
 To release claim in favor of municipality. 
 
 Cited in Pearson v. State, 56 Ark. 154, 35 Am. St. Rep. 91, 19 S. W. 499, hold- 
 ing act releasing treasurer from liability for county funds stolen from safe fur- 
 nished by county, valid. 
 
 6 L. R. A. 667, TAYLOR v. MILLARD, 118 N. Y. 244, 23 N. E. 376. 
 Parol partition. 
 
 Cited in Jones v. Jones, 118 App. Div. 154, 103 N. Y. Supp. 141, holding 
 partition partly in writing and partly parol will be enforced where actually 
 executed. 
 
 Cited in footnote to Sontag v. Bigelow, 16 L. R. A. 326, which holds plaintiff 
 in ejectment cannot establish title upon parol partition. 
 
 Disapproved in effect in Berry v. Seawall, 65 Fed. 752, holding parol partition 
 not vest legal title in severalty to alloted shares. 
 Easement created by estoppel. 
 
 Cited in Mattes v. Frankel, 157 N. Y. 611, 68 Am. St. Rep. 804, 52 N. E. 585 
 (dissenting opinion), majority holding vendor of land estopped by representations 
 to deny right of way over his adjoining lot; Baker v. Kenney, 145 Iowa, 645, 
 139 Am. St. Rep. 456, 124 N. W. 901, holding that inheritable right to use for 
 
6 LJR.A. 667] L. R. A. CASES AS AUTHORITIES. 1162 
 
 profit land of another may be created by apt language in deed and such right 
 need not be created as appurtenant to other property. 
 
 Cited in note (122 Am. St. Rep. 213) on grant of easements by implication. 
 Protection of recording: act. 
 
 Cited in Jobling v. Tuttle, 75 Kan. 360, 9 L.R.A.(X.S.) 965, 89 Pac. 699, 
 holding easement to free use of water from mineral spring on land of another, 
 which arose from executed parol contract with former owner, cannot be asserted 
 as against subsequent grantee without notice, there being nothing of record ta 
 show servitude. 
 
 Distinguished in Hey v. Collman, 78 App. Div. 587, 79 N. Y. Supp. 778, hold- 
 ing purchaser of land not protected by recording act from assertion of right of 
 way physically denned. 
 
 6 L. R. A. 669, BLATZ v. ROHRBACH, 116 N. Y. 450. 22 X. E. 1049. 
 
 Report of later appeal in 60 Hun, 169, 14 N. Y. Supp. 458. 
 Beer a* intoxicating; liquor. 
 
 Followed in State v. Sioux Falls Brewing Co. 5 S. D. 44, 26 L. R, A. 139 
 58 X. W. 1, holding beer, in absence of evidence as to quality, not intoxicating 
 liquor. 
 
 Cited in Be Hunter, 34 Misc. 389, 69 N. Y. Supp. 908, holding proof of sale 
 of beer no ground for enjoining trafficking in liquors ; Shreveport Ice & Brewing 
 Co. v. Brown, 128 La. 412, 54 So. 923, to the point that under local option laws, 
 the commodity sold, must to sustain conviction, be intoxicating; Cassens v. 
 State. 48 Tex. Crim. Rep. 188, 88 S. W. 229, holding proof of intoxicating proper- 
 ties of beer necessary; Potts v. State, 50 Tex. Crim. Rep. 370, 7 L.R.A.(X.S.) 197 r 
 123 Am. St. Rep. 847, 97 S. W. 477, holding testimony that beverage purchased 
 was called "lager beer" insufficient in prosecution for violating local option law 
 to show liquor possessed intoxicating properties; People v. Cox, 106 App. Div. 
 303, 94 N. Y. Supp. 526, 19 N. Y. Crim. Rep. 486, holding "malt rose." con- 
 taining some alcohol and made to represent lager beer, within prohibition of 
 liquor tax law, and crime of "unlawfully selling distilled and rectified spirits, 
 wine fermented and malt liquors" sufficiently charged without alleging liquor 
 was intoxicating. 
 
 Cited in notes (20 LJRJL 648) on what liquors are within statutory restric- 
 tion as to sale of "spirituous, vinous, fermented," and other intoxicating liquors; 
 (7 L.R,A.(NJS.) 195) on sale of 'lager beer" not shown to be intoxicating as 
 sustaining conviction for unlawful sale of "intoxicating liquors;" (25 L.R.A. 
 (X.S.) 448) on proof of sale of "beer" as sustaining conviction under statutes 
 prohibiting sale of vinous, malt, fermented, or intoxicating liquors; (12 Am. 
 St. Rep. 353) on intoxicating liquors. 
 
 Distinguished in People ex rel. Lanci v. O'Reilly, 129 App. Div. 525, 114 N. 
 Y. Supp. 258, holding, under statute, court will take judicial notice that lager 
 beer is fermented and malt liquor within liquor tax law. 
 
 Disapproved in State v. Carmody, 50 Or. 5, 12 KR.A.(X.S.) 830. 91 Pac. 446, 
 holding charge of unlawfully selling intoxicating liquor sustained by proof of 
 sale of beer without any further description or testimony that it was intoxicating. 
 Action for civil damagre* for sale of Intoxicants. 
 
 Cited in McCarty v. Wells, 51 Hun, 174, 4 N. Y. Supp. 672, holding that plain- 
 tiff in action for damages for sale of intoxicants need not prove intoxication was 
 immediate and proximate cause of death. 
 Bnrden of proof in civil action chargring: crime. 
 
 Cited in Cook v. Dowling, 6 Misc. 273, 26 X. Y. Supp. 764, holding person 
 
1163 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 672 
 
 charged with unlawful conversion presumed innocent; Re Hunter, 34 Misc. 390, 
 60 X. Y. Supp. 908, holding person sought to be enjoined from unlicensed sale 
 of liquor presumed innocent; Buffalo v. Smith, 8 Misc. 349, 28 N. Y. Supp. 690, 
 holding burden of proof on city in action to recover penalty for violation of 
 ordinance. 
 
 Cited in note (39 L. ed. U. S. 483) on presumption of innocence and legality. 
 Necessity of proof of knowledge of Intent to violate statute. 
 
 Distinguished in Bulena v. Newman, 10 Misc. 462, 31 N. Y. Supp. 449, holding 
 that knowledge or intent to use imitation union label, not made ingredient of 
 offense by statute, need not be proved. 
 
 6 L. R. A. 672, WEIR v. MARLEY, 99 Mo. 484, 12 S. W. 798. 
 Custody of child; effect of agreement. 
 
 Cited in Hussey v. Whiting, 145 Ind. 583, 57 Am. St. Rep. 220, 44 N. E. 639, 
 holding oral agreement with grandparent at wife's death not preclude father 
 from claiming custody; Re Blackburn, 41 Mo. App. 631, holding that mother 
 obtaining custody of child on divorce cannot transmit custody to third party on 
 death ; De Jarnett v. Harper, 45 Mo. App. 420, holding mother entitled to custody 
 on death of father irrespective of father's contract with third party; Edwards v. 
 Edwards, 84 Mo. App. 554, granting mother custody as against paternal grand- 
 father, where evidence insufficient to show unfitness; Hibbette v. Baines, 78 Miss. 
 710, 51 L. R, A. 843, footnote p. 839, 29 So. 80, holding father entitled to custody 
 of children after death of party to whom entrusted by wife on deathbed; Mark- 
 well v. Pereles, 95 Wis. 422, 69 N. W. 798, holding father entitled to child left 
 with wife's relatives at their request at her death, where rights not surrendered; 
 Legate v. Legate, 87 Tex. 253, 28 S. W. 281; State ex rel. Wood v. Deaton, 93 
 Tex. 247, 54 S. W. 901, holding that relinquishment of child by parents to an- 
 other for adoption does not preclude them from regaining custody; Urey v. 
 Moller, 142 Mo. App. 583, 121 S. W. 1102, holding father has first claim, unless 
 he is unworthy, has abandoned child, is unable to take care of it or some other 
 strong reason exists against him; Brewer v. Cary, 148 Mo. App. 207, 127 S. 
 W. 685, holding that welfare of child itself invariably determines matter of 
 child's custody and not naked question of right of custody; Plahn v. Dribred, 
 36 Tex. Civ. App. 605, 83 S. W. 867, holding that person entitled thereto in 
 whose custody interest and welfare of child would be best promoted; Gilmore 
 v. Kitson, 165 Ind. 409, 74 N. E. 1083, holding father who is of good character 
 and is able to comfortably maintain child entitled to its custody as against 
 sister of deceased mother of child, although latter was better off financially; 
 Ex parte Reynolds, 73 S. C. 302, 114 Am. St. Rep. 86, 53 S. E. 490, 6 A. & E. 
 Ann. Cas. 936, holding right of parent to custody of child cannot be defeated 
 by mere parol gift of child to another; Cormack v. Marshall, 122 111. App. 215, 
 holding parol contract by which father confers right of custody of infant child 
 on another, not binding; Re Galleher, 2 Cal. App. 367, 84 Pac. 352, holding oral 
 agreement whereby parent gave infant child to child's maternal aunt to raise, 
 revocable at any time: Re Crocheron. 16 Idaho, 451, 33 L.R.A. (X.S.) 878, 101 
 Pac. 741, holding that under section 5774 of revised codes, surviving parent 
 who is competent to transact business and not otherwise unsuitable is entitled 
 to guardianship of his child; Re Byron, 83 Vt. 110, 74 Atl. 488, holding that 
 mother of bastard child is entitled to custody, unless child's welfare requires 
 the contrary. 
 
 Cited in footnotes to Stapleton v. Poynter, 53 L. R. A. 784, which holds that 
 custody of child will be taken against its will from wealthy grandparent and 
 given to parent of moral habits; Re Reiss. 25 L. R. A. 798, which denies power 
 
6 L.R.A. 672] L. R. A. CASES AS AUTHORITIES. 1164 
 
 of court to compel father to send children to visit their grandmother; Re 
 Young, 36 L. R. A. 224, which upholds grandparents' right to custody of children 
 to exclusion of father's sister appointed guardian by his will; Fletcher v. Hick- 
 man, 55 L. R. A. 896, which holds father bound by agreement entrusting cus- 
 tody of infant child to another; Anderson v. Young, 44 L. R. A. 277, which 
 sustains court's power to uphold, in interest of child, custody acquired under 
 void agreement with parent; Kelsey v. Green, 38 L. R. A. 471, which denies 
 absolute right of guardian appointed on father's application as against guardian 
 appointed in other state where child actually resides; State ex rel. Lasserre v. 
 Michel, 54 L. R. A. 927, which holds habeas corpus by husband against wife for 
 custody of child not a "suit" within statutory prohibition; People v. Ewer, 
 25 L. R. A. 794, which holds valid act prohibiting employment of girls under 
 fourteen as dancers or in theatrical exhibitions; Jones v. Bowman, 67 L.R.A. 
 860, which holds that religious belief will not in absence of statutory require- 
 ment be considered in determining the proper custodian of an infant. 
 
 Cited in notes (27 L.R.A. 56) on validity of contract for transfer of parental 
 responsibility or authority; (88 Am. St. Rep. 269, 868, 869) on contracts for 
 transfer of parental custody and responsibility. 
 Res jndlcata by habeas corpus proceedings. 
 
 Followed in Re Boutelle, 124 Mo. App. 453, 101 S. W. 1096, holding entry of 
 judgment of circuit court in habeas corpus proceeding granting custody of child 
 conclusive against another proceeding on same issues of fact in court of appeals. 
 
 Cited in Re Clyne, 52 Kan. 450, 35 Pac. 23, holding discharge in habeas 
 corpus for insufficient evidence to support charges, no bar to subsequent prose- 
 cution on new evidence; Re Hamilton, 66 Kan. 756, 71 Pac. 817, holding judg- 
 ment on habeas corpus to determine custody of child conclusive of all matters in 
 issue arising upon the same state of facts; Re King, 66 Kan. 698, 97 Am. St. Rep. 
 399, 72 Pac. 263, holding judgment on habeas corpus as to custody of child not 
 conclusive where child's welfare requires different order; Ex parte Reaves, 121 
 Fed. 859, holding judgment in habeas corpus proceedings awarding enlisted minor 
 to father's custody conclusive on government; Cormack v. Marshall, 211 111. 525, 
 67 L.R.A. 790, 71 N. E. 1077, 1 A. & E. Ann. Cas. 256, holding order of court 
 in proceedings to obtain custody of child conclusive on parties on same facts 
 and so long as same conditions as time of hearing and order; Re Clark, 203 
 Mo. 143, 15 L.R.A. (N.S.) 396, 106 S. W. 990, holding res adjudicata not good 
 on same facts where prisoner has been remanded; Urey v. Moller, 142 Mo. App. 
 583, 121 S. W. 1102, holding refusal of circuit to grant application of father 
 for writ of habeas corpus to obtain custody of child held by home not res 
 adjudicata on application in court of appeals; Dawson v. Dawson, 57 W. Va. 
 530, 110 Am. St. Rep. 800, 50 S. E. 613, holding judgment of circuit court in 
 habeas corpus proceeding awarding custody to wife, res adjudicata in suit by 
 husband for divorce and custody of child, as to all facts known and existing 
 at hearing of habeas corpus proceeding. 
 
 Cited in notes (7 L.R.A. 578) on doctrine of res judicata; (67 L.R.A. 784) 
 on habeas corpus decree as to custody of infant as res judicata. 
 
 6 L. R. A. 676, FIRST NAT. BANK v. GUSTIN-MINERVA CONSOL. MIX. CO. 
 
 42 Minn. 327, 18 Am. St. Rep. 510, 44 N. W. 198. 
 Liability of stockholders. 
 
 Cited in Mandel v. Swan Land & Cattle Co. 51 111. App. 209. holding stock- 
 holder liable to pay calls due at time of forfeiture where charter provides there- 
 for at time of subscription; Kulp v. Fleming. 60 Ohio St. 337, 87 Am. St. Rep. 
 611, 62 N. E. 334, and Hanson v. Davison, 73 Minn. 461, 76 N. W. 254, holding 
 
1105 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 676 
 
 stockholder's liability contractual in nature; Hospes v. Northwestern Mfg. & 
 Car Co. 48 Minn. 196, 15 L. R. A. 474, 31 Am. St. Rep. 637, 50 N. W. 1117, hold- 
 ing liability of bonus stockholders to creditors based on fraud, not on "trust 
 fund" theory; Union R. Co. v. Sneed, 99 Tenn. 8, 41 S. W. 364, holding subscriber 
 not estopped to deny legality of issue of stock in suit by corporation to collect 
 balance of subscription thereto; Berry v. Rood, 168 Mo. 334, 67 S. W. 644, and 
 Hastings Malting Co. v. Iron Range Brewing Co. 65 Minn. 32, 67 N. W. 652, 
 holding stockholder paying subscription in overvalued property liable to subse- 
 quent creditors for difference between its actual value and face of stock; Hooper 
 v. Central Trust Co. 81 Md. 581, 29 L. R. A. 268, 32 Atl. 505, holding promoters 
 owning bonus stock cannot enforce corporate mortgage bonds without first pay- 
 ing for stock; Handley v. Stutz, 139 U. S. 436, 35 L. ed. 237, 11 Sup. Ct. Rep. 
 530, holding creditor prior to issue of additional stock not entitled to enforce 
 liability; Rickerson Roller-Mill Co. v. Farrell Foundry & Mach. Co. 23 C. C. A. 
 302, 43 U. S. App. 452, 75 Fed. 561, holding creditor becoming such with knowl- 
 edge of issue of "bonus stock" cannot enforce liability in Federal court; Cun- 
 ningham v. Holley, M. M. & Co. 58 C. C. A. 141, 121 Fed. 721, holding part 
 owner of . property receiving full-paid stock therefor cannot, on becoming a 
 creditor, assert invalidity of transaction; State Trust Co, v. Turner, 111 Iowa, 
 674, 53 L. R, A. 140, 82 N. W. 1029, holding that assignee after maturity of 
 not* given by corporation to creditor aware of bonus stock issue, cannot enforce 
 liability; Adamant Mfg. Co. v. Wallace, 16 Wash. 618, 48 Pac. 415, holding 
 stockholder paying subscription in overvalued property not liable to party aware 
 thereof at time of becoming creditor; Andrews v. National Foundry & Pipe 
 Works, 36 L. R. A. 152, 22 C. C. A. 130, 46 U. S. App. 281, 76 Fed. 175, holding 
 parties taking stock as collateral security for debt not liable except to creditors 
 misled to regard them as shareholders; Bruner v. Brown, 139 Ind. 608, 38 N. E. 
 3>18, holding that receiver cannot enforce liability against promoter taking 
 paid-up stock for property, in absence of fraud; Bent v. Underdown, 156 Ind. 
 518, 60 N. E. 307, holding no liability to creditors where charter provides for 
 issue of stock at less than par; Elyton Land Co. v. Birmingham Warehouse & 
 Elevator Co. 92 Ala. 426, 12 L.R.A. 314, 25 Am. St. Rep. 65, 9 So. 129, holding 
 subscribers liable to creditors where stock paid for by conveyance of land worth 
 only amount assumed by corporation; Downer v. Union Land Co. 113 Minn. 
 416, 129 N. W. 777, to. the point that creditor may maintain action to recover 
 balance of judgment against corporation against stockholders for difference be- 
 tween value of stock and what they paid for it where stock was issued as full 
 paid; Macbeth v. Banfield, 45 Or. 566, 106 Am. St. Rep. 670, 78 Pac. 693, holding 
 that in case of insolvency the unpaid stock subscription becomes a trust fund for 
 the benefit of its creditors; Lea v. Iron Belt Mercantile Co. 147 Ala. 427, 8 
 L.R.A. (N.S.) 282, 119 Am. St. Rep. 93, 42 So. 415, holding that one who had 
 extended credit with knowledge that the stock had not been fully paid for, 
 cannot compel the stockholders to pay the difference; Easton Nat. Bank v. 
 American Brick & Tile Co. 69 N. J. Eq. 337, 60 Atl. 54, holding that creditors 
 extending credit to the corporation with knowledge that the stock is not paid 
 up in full, cannot in case of insolvency compel the stockholders to pay the 
 remainder; Easton Nat. Bank v. American Brick & Tile Co. 70 N. J. Eq. 744. 
 8 L.R.A. (N.S.) 278, 64 Atl. 917, 10 A. & E. Ann. Cas. 84, Reversing in part 
 (19 N. J. Eq. 326, 60 Atl. 54, holding a stockholder who participated in the 
 improper issuing of unpaid stock not estopped by receiving same, from sharing 
 as a creditor in proceedings to enforce the liability against the stockholders for 
 the unpaid amount. 
 
 Cited in notes (9 L. R. A. 632) on issue of new- stock by corporation; (38 
 
6 L.R.A. G7G] L. R. A. CASES AS AUTHORITIES. 1166 
 
 L. R, A. 492, 494) on bonus stock of corporations; (42 L. R. A. 598, 619) on 
 how far payment for stock by corporation by transfer of property will protect 
 shareholders against corporate creditors; (76 Am. St. Rep. 134) on right of 
 corporation to assess stockholders. 
 
 Distinguished in Shields v. Clifton Hill Land Co. 94 Tenn. 156, 26 L. R. A. 
 520, 45 Am. St. Rep. 700, 28 S. W. 668, and Jones v. Whitworth, 94 Tenn. 609, 
 30 S. W. 736, holding statutory liability available to creditors becoming such 
 either before or after issue of bonus stock; Carter v. Union Printing Co. 54 Ark. 
 581, 16 S. W. 579, holding that creditor prior to issue of stock may enforce sub- 
 scription thereto in spite of release by corporation after insolvency. 
 Presumption of reliance of creditor upon professed capital. 
 
 Cited in Dwinnell v. Minneapolis F. & M. Ins. Co. 97 Minn. 346, 106 N. W. 
 312, holding that it will be presumed that the creditors relied upon the pro- 
 fessed capital stock of the corporation and were induced thereby to give credit; 
 See v. Heppenheimer, 69 N. J. Eq. 85, 61 Atl. 843, on the presumption that 
 creditors are presumed to act on the information contained in the records in 
 the office of the Secretary of State. 
 Conflict of laws. 
 
 Cited in Western Nat. Bank v. Lawrence, 117 Mich. 673, 76 N. W. 105, holding 
 that creditors may enforce anywhere, double liability imposed by foreign statute 
 on stockholders in corporations there organized; Childs v. Cleaves, 95 Me. 508, 
 50 Atl. 714, holding that receiver of foreign corporation may maintain actions 
 in other jurisdictions to enforce liability; Leucke v. Tredway, 45 Mo. App. 513, 
 holding special remedies against bonus stockholders, at corporation's domicil, 
 not available in foreign jurisdiction; Giesen v. London & N. W. American Mortg. 
 Co. 42 C. C. A. 515, 102 Fed. 587, holding liability under foreign statute en- 
 forceable in Federal courts; McVickar v. Jones, 70 Fed. 756, holding statutory 
 liability of stockholder in foreign corporation enforceable in Federal court 
 sitting in another state; Black v. Sullivan Timber Co. 147 Ala. 333, 40 So. 667, 
 holding that where the corporation has been voluntarily dissolved by the courts 
 of one state, the stockholder in another cannot apply to the courts of his state 
 to have a receiver appointed. 
 
 Cited in notes (12 L. R, A. 366) on law of comity as to foreign corporations; 
 (34 L. R. A. 741) on right to enforce stockholder's liability outside of state of 
 incorporation. 
 
 Limited in Rule v. Omega Stove & Grate Co. 64 Minn. 329, 67 N. W. 60, 
 holding creditor of insolvent foreign corporation not entitled to statutory pro- 
 ceedings against "bonus-stock" holders in domestic corporation. 
 
 Power to sell corporate property against consent of minority stock- 
 holder*. 
 
 Cited in note (35 L.R.A. (N.S.) 396) on power to sell property essential to 
 existence of corporation as a going concern against will of minority stockholders. 
 
 6 L. R, A. 680, SILLARS v. COLLIER, 151 Mass. 50, 23 N. E. 723. 
 Actionable libel or slander. 
 
 Cited in Fanning v. Chace, 17 R. I. 390, 13 L. R, A. 136, 33 Am. St. Rep. 878, 
 22 Atl. 275, holding charge that person intends to start house of ill fame, not 
 actionable; Doyle v. Kirby, 184 Mass. 411, 68 N. E. 843, holding oral charge of 
 having sold vote not actionable without averment and proof of special damages; 
 Doyle v. Kirby, 184 Mass. 411, 68 N. E. 843, holding in slander by spoken words, 
 there can be no recovery in absence of plea and proof of special damages, unless 
 words impute commission of crime. 
 
1167 L. E. A. CASES AS AUTHORITIES. [6 L.R.A. 682 
 
 Cited in footnote to Nissen v. Cramer, 6 L. R, A. 780, which holds relevant 
 words spoken by party to action during trial privileged. 
 
 Cited in notes (9 L.R.A. 621) on libel and slander in general; (116 Am. St. 
 Rep. 815) on what words are libelous per se. 
 Criticism of public men. 
 
 Cited in Kilgour v. Evening Star Newspaper Co. 96 Md. 24, 53 Atl. 716, hold- 
 ing publication charging state's attorney with statement that he would not 
 recommend payment of coroner's fees if proposed autopsy were held, not libelous 
 per se. 
 
 Cited in footnotes to State v. Hoskins, 47 L. R. A. 223, which denies privilege, 
 to publication of charges against county judge, outside of judicial district; 
 Upton v. Hume, 21 L. R. A. 493, which holds false imputation of crime to candi- 
 date not privileged; Coffin v. Brown, 55 L. R. A. 732, which denies right to 
 falsely attack character of appointee of governor to prevent latter's re-election; 
 Eikhotf v. Gilbert, 51 L. R. A. 451, which denies privilege to circular to voters 
 announcing that candidate for re-election has championed legislation opposed to 
 moral interests of community; Wofford v. Meeks, 55 L. R. A. 214, which holds 
 libelous, publication imputing to county officials prostitution of county finances 
 by awarding contracts to persons of same political faith; Augusta Evening 
 News v. Radford, 20 L. R. A. 533, which holds newspaper article charging con- 
 stable with soliciting business for magistrates' courts libelous; Star Pub. Co. 
 v. Donahoe, 65 L.R.A. 980, which holds newspaper publication charging can- 
 didate for office with a criminal offense, not privileged. 
 
 Cited in notes (8 L. R. A. 193) on words tending to injure person in office; 
 <13 L. R. A. 98) on fair criticism of public men. 
 
 6 L. R. A. 682, RAMSEY v. RAMSEY, 121 Ind. 215, 23 N. E. 69. 
 Rijerht to custody and service of child. 
 
 Cited in footnotes to Keller v. St. Louis, 47 L. R, A. 391, which denies mother's 
 right of action for injury to child given her by divorce decree without provision 
 as to its support; Hibbette v. Bains, 51 L. R. A. 839, which sustains father's 
 right to custody of child notwithstanding assent to wife's deathbed contract to 
 give custody to her relatives. 
 Duty of father to support child. 
 
 Cited in Brosius v. Barker, 154 Mo. App. 662, 136 S. W. 18, holding that it 
 is father's duty to maintain and support his infant child. 
 
 Cited in note (38 L.R.A. (N.S.) 511) on recovery by mother against father 
 for money expended in support of children. 
 Effect of divorce upon responsibility of parent for support of child. 
 
 Cited in McKay v. McKay, 125 Cal. 71, 57 Pac. 677, and Gussman v. Gussman, 
 140 Ind. 435, 39 N. E. 918, holding that decree of divorce giving custody of 
 child to mother, relieves father of responsibility for support and education; 
 Spade v. State, 44 Ind. App. 534, 89 N. E. 604, holding that it is duty of father 
 to support child even where court granting wife divorce takes from him custody 
 of child: Alvey v. Hartwig, 106 Md. 264, 11 L.R. A. ( JST.S. ) 683, 67 Atl. 132, 14 
 A. & E. Ann. Cas. 250. holding wife who obtains decree awarding her custody 
 of minor children in divorce suit against nonresident husband cannot recover 
 for support in such suit where prayer is only for divorce and custody of chil- 
 dren; Libbe v. Libbe. 157 Mo. App. 614, 138 S. W. 688, holding that wife cannot 
 maintain suit against husband for expenses incurred in maintainance of child 
 pending suit by her for divorce. 
 
 Cited in notes (47 Am. St. Rep. 316, 317) on father's liability where custody 
 
6 L.R.A. 682] L. R. A. CASES AS AUTHORITIES. 1168 
 
 of child is awarded to divorced mother; (114 Am. St. Rep. 701) on father's duty 
 to support child awarded to mother by divorce decree silent as to maintenance. 
 
 Distinguished in Zilley v. Dunwiddie, 98 Wis. 434, 40 L. R. A. 581, 67 Am. 
 St. Rep. 820, 74 N. W. 126, holding mother refusing to surrender child to father, 
 after he has become entitled to custody under decree of divorce, may recover on 
 implied promise of father to pay for maintenance; Leibold v. Leibold, 158 Ind. 
 61, 62 N. E. 627, holding father liable to support child for custody of which he 
 is unfit; Tobin v. Tobin, 29 Ind. App. 384, 64 N. E. 624, modifying divorce 
 decree awarding child to mother by requiring father to support it upon showing 
 that mother cannot do so; Spencer v. Spencer, 97 Minn. 59, 2 L.R.A. (N.S.) 853, 
 114 Am. St. Rep. 695, 105 N. W. 483, 7 A. & E. Ann. Gas. 901, holding where 
 decree of divorce for husband's misconduct awards custody to mother but is 
 silent as to their support, he is liable for reasonable sum for necessaries fur- 
 nished for their support, where he refuses or neglects to support them. 
 
 Disapproved in effect in McCloskey v. McCloskey, 93 Mo. App. 400, 67 S. W. 
 669, holding that father remains liable to mother for necessary disbursements 
 for children made after divorce. 
 Rijiht of volunteer to recover for services or disbursements. 
 
 Cited in Turner v. Flagg, 6 Ind. App. 572, 33 N. E. 1104, holding person fur- 
 nishing necessaries to infant not necessarily deemed volunteer, when parent 
 neglects or refuses support; Montgomery County v. Ristine, 124 Ind. 247, 8 L. 
 R. A. 463, 24 N. E. 990, holding that county cannot recover on contract with 
 guardian providing for payment for care of insane person in asylum for poor; 
 Miles v. De Wolf, 8 Ind. App. 175, 34 N. E. 114, holding that examination of 
 witnesses by firm of attorneys, holding trust relation to estate, in presence of 
 trustee under will, raises no presumption of employment by trustee; Demonet 
 v. Burkart, 23 App. D. C. 318, holding where wife on decree of divorce volun- 
 tarily assumes sole care and custody of child and declines offers of husband to 
 assist therein, equity will not after lapse of long period compel husband to 
 reimburse wife for such care and custody. 
 
 6 L. R. A. 686, NADING v. McGREGOR, 121 Ind. 465, 23 N. E. 283. 
 Guaranty, construction of. 
 
 Cited in note (105 Am. St. Rep. 504, 517) on contract of guaranty. 
 
 Distinguished in Colborn v. Fry, 23 Ind. App. 489, 55 N. E. 621, holding 
 letter authorizing "bearer to purchase such lumber as he may select for me" 
 neither guaranty nor original undertaking. 
 Original undertakings. 
 
 Cited in Hernley v. Brannum, 23 Ind. App. 393, 55 N. E. 512; Walter A. Wood 
 Mowing & Reaping Co. v. Farnham, 1 Okla. 376, 33 Pac. 867; Woody v. Hawoith, 
 24 Ind. App. 637, 57 N. E. 272, holding guaranty of payment of note, original 
 undertaking; Metzger v. Hubbard, 153 Ind. 192, 54 N. E. 761, holding guarantor 
 of payment of note primarily liable; Cole Mfg. Co. v. Morton, 24 Mont. 63, 
 60 Pac. 587; Bryant v. Stout, 16 Ind. App. 392, 44 N. E. 68; Durand & K. Co. 
 v. Rockwell, 23 Ind. App. 13, 54 K E. 771, holding bond conditional on faithful 
 accounting by employee, original undertaking; Wittmer Lumber Co. v. Rice, 23 
 Ind. App. 588, 55 N. E. 868, holding one signing as surety on bond to secure 
 performance of contract originally liable; Wheeler v. Rohrer, 21 Ind. App. 481. 
 52 N. E. 780, holding bond to indemnify vendor against loss original under- 
 taking; Lane v. Mayer, 15 Ind. App. 384, 44 N. E. 73; Newcomb Bros. Wall 
 Paper Co. v. Emerson, 17 Ind. App. 485, 46 N. E. 1018; Herman v. Williams. 
 36 Fla. 142, 18 So. 351; Conduitt v. Ryan, 3 Ind. App. 5, 29 N. E. 160, holding 
 
1169 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 691 
 
 guaranty of payment for goods sold and to be sold, original undertaking; Shearer 
 v. R, S. Peale & Co. 9 Ind. App. 286, 3G X. E. 455, holding guaranty of payment 
 for goods ordered original undertaking; Stewart v. Knight & J. Co. 166 Ind. 
 503, 76 N. E. 743, holding written order addressed to plaintiff, signed by de- 
 fendant, stating, "Please let bearer have whatever he wants at any time and 
 I will see that same is paid for," is direct and original promise, and defendant 
 liable without notice of acceptance; Rouse v. Wooten, 140 N. C. 560, 111 Am. 
 St. Rep. 875, 53 S. E. 430, 6 A. & E. Ann. Cas. 280, holding surety on note 
 primarily liable thereon; Miller v. State, 35 Ind. App. 384, 74 N. E. 260, holding 
 contract by principal contractor to liquidate indebtedness of subcontractor, who 
 has absconded for supplies and labor furnished subcontractor, who theretofore 
 was treated as debtor, not original undertaking. 
 Collateral undertakings. 
 
 Cited in Sullivan v. Cluggage, 21 Ind. App. 672, 52 N. E. 110, holding surety's 
 bond to pay damages occasioned by principal's failure to perform contract, col- 
 lateral guaranty. 
 Xecesuity of notice of acceptance of guaranty. 
 
 Cited in Bechtold v. Lyon, 130 Ind. 202, 29 N. E. 912, holding notice of 
 acceptance of guaranty contemporaneous, with or subsequent to principal con- 
 tract unnecessary; Cumberland Glass Mfg. Co. v. Wheaton, 208 Mass. 431, 94 
 N. E. 803, holding that no notice of default in payment is necessary where 
 guaranty of payment expressly formed part of consideration of contract. 
 
 Cited in footnotes to German Sav. Bank v. Drake Roofing Co. 51 L.R.A. 758, 
 which holds notice of acceptance necessary to bind guarantor; Cowan, M. & Co. 
 v. Roberts, 65 L.R.A. 729, which holds notice of acceptance not necessary to 
 bind one guaranteeing debt with provision that guaranty shall remain in force 
 until full payment or discharge in writing. 
 
 Cited in notes (20 L.R.A. 259) on necessity of notice of default to bind 
 guarantor; (16 L.R.A. (N.S.) 355, 367) on necessity of notice to acceptance to 
 bind guarantor. 
 
 6 L. R. A. 688, POPE v. VAJEN, 121 Ind. 317, 22 N. E. 308. 
 Xovation. 
 
 Cited in Price v. Barnes, 7 Ind. App. 5, 31 N. E. 809, holding acceptance of 
 individual note in extinguishment of liability as guardian, novation; Horn v. 
 McKinney, 5 Ind. App. 349, 32 N. E. 334, holding that answer to suit on note 
 pleading novation must show new agreement by all parties. 
 
 Cited in note (10 L. R. A. 369; 13 L. R. A. 390) on what constitutes novation. 
 Consideration for release from note. 
 
 Cited in Ditmar v. West, 7 Ind. App. 639, 35 X. E. 47, holding surrender of 
 right of action against maker of note constitutes sufficient consideration to sus- 
 tain release; Morrison v. Kendall, 6 Ind. App. 217, 33 N. E. 370, holding that 
 release of party to note requires a consideration. 
 Release front one burden as consideration for imposition of another. 
 
 Cited in Indianapolis & E. I. R. Co. v. Xew Castle. 43 Ind. App. 473, 474, 87 
 N. E. 1067, holding releasing street car company from Imrden of keeping street 
 between tracks in repair consideration for imposition of burdens not contained 
 in original franchise. 
 
 6 L. R. A. 691, GRAY v. HERMAX. 75 \Yis. 453, 44 X. YV. 248. 
 Effect of payment of debt by stranger. 
 
 Cited in Crumlish v. Central Impror. Co. 38 W. Va. 396, 23 L. R. A. 128, 
 L.R.A. Au. Vol. I. 74. 
 
L.R.A. C91] L. R. A. CASES AS AUTHORITIES. 1170 
 
 45 Am. St. Rep. 872, 18 S. E. 456, holding that payment by stranger discharges 
 debt; Chicago, R. L A P. R. Co. v. Brown, 70 Xeb. 700, 97 X. W. 1038, holding 
 accord, even between plaintiff and third party, as to subject matter of suit, 
 and satisfaction moving from third person to plaintiff and accepted by him. 
 i>ar to action if defendant has authorized or ratified settlement. 
 
 Cited in notes (23 L.R.A. 120) on effect of payment of debt by volunteer or 
 stranger to original undertaking; (100 Am. St. Rep. 397) on accord and satis- 
 faction with stranger to transaction. 
 Statute of frauds - Promise to pay another's debt. 
 
 Cited in Dupuis v. Interior Constr. & Improv. Co. 88 Mich. 107, 50 N. W. 103, 
 .holding parol promise to retain enough of contractor's money to pay subcon- 
 tractor, void; Lowe v. Turpie, 147 Ind. 683, 37 L. R. A. 243, 44 X. E. 25, holding 
 parol promise to pay another's note to third person, upon assignment of col- 
 lateral by surety, void; Mine & Smelter Supply Co. v. Stockgrowers' Bank, 98 
 C. C. A. 229, 173 Fed. 863, holding parol promise to pay debt of another, where 
 no substantial benefit or advantage inures directly to promisor in consideration 
 thereof, cannot be sustained. 
 
 Cited in note (27 Am. St. Rep. 20) on promise to pay debt of another. 
 
 6 L. R. A. 693, CARTER v. NOLAXD, 86 Va. 568, 10 S. W. 605. 
 
 KftVft of collateral agreement on construction of negotiable Instrument. 
 
 Cited in Xottingham v. Ackiss, 107 Va. 66, 57 S. E. 592, holding where note 
 and separate written agreement whereby note, though payable on demand, was 
 only to be paid from proceeds of certain sales, were executed at same time and 
 both assigned together, note is governed by contract. 
 
 6 L. R. A. 695, MOLLOY v. WALKER, TWP. 77 Mich. 448, 43 N. W. 1012. 
 Negligence - Proximate cause. 
 
 Cited in footnotes to Missouri P. R. Co. v. Columbia, 58 L. R. A. 399, which 
 holds placing on platform heavy doors blown on track by severe gale not proxi- 
 mate cause of derailment of engine; Bell v. Wayne, 48 L. R. A. 644, which holds 
 want of barriers to approach to bridge not proximate cause of injuries by team 
 going off bank while unmanageable. 
 
 Cited in note (18 L.R.A. (X.S.) 1137) on what injuries may be deemed proxi- 
 -mately caused by absence of guard rail in highway. 
 
 Distinguished in Beall v. Athens Twp. 81 Mich. 541, 45 N. W. 1014, holding 
 town not liable where failure to erect barriers not proximate cause of injury. 
 Liability for defects in highway. 
 
 Cited in Bigelow v. Kalamazoo, 97 Mich. 127, 56 N. W. 339 (dissenting opin- 
 ion), majority holding city not liable to one slipping on beveled edge of walk, 
 rendered necessary by local requirements; Finch v. Bangor, 133 Mich. 151, 94 
 N". W. 738, holding city is bound to keep its highways in condition reasonably 
 *afe and fit for travel; McEvoy v. Sault Ste. Marie, 136 Mich. 190, 98 X. W. 
 1006 (dissenting opinion), on liability of city for injury from obstruction al- 
 lowed to remain in street. 
 
 Cited in footnotes to Teagar v. Flemingsburg, 53 L.R.A. 792, which holds mere 
 building of step in sidewalk not negligence rendering city liable for injury to 
 pedestrians; Harden v. Jackson, 66 L.R.A. 986, which holds plank sidewalk not 
 so unsafe as to render city liable to one falling thereon because his cane goes 
 through, although the edges of planks have become so decayed as not to with- 
 stand pressure of cane. 
 
 Cited in notes (19 L. R. A. 454) on distinction between public and private 
 
1171 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 702 
 
 functions of municipalities as to liability for negligence; (13 L. R. A. 439) on 
 custom and usage as law; (67 L.R.A. 269) on municipal liability for defective 
 plan of street construction; (13 L.R.A. (N.S.) 1273; 20 L.R.A. (N.S.) 525, 673, 
 675, 682, 696) on liability of municipality for defects or obstructions in streets. 
 
 Distinguished in Weisse v. Detroit, 105 Mich. 486, 63 N. W. 423, holding city 
 not liable for injury caused by slight elevation of loose plank in walk. 
 Safety of highway question for jury. 
 
 Followed in Hannon v. Gladstone, 136 Mich. 622, 99 N. W. 790, holding it 
 question for jury whether city was negligent in failing to erect guards on side- 
 walk some distance above ground. 
 
 Cited in Ross v. Ionia Twp. 104 Mich. 324, 62 N. W. 401, holding where horse 
 frightened by falling water backed off approach to bridge, negligence in not erect- 
 ing railing question for jury; Schrader v. Port Huron, 106 Mich. 175, 63 N. W. 
 964, holding city's liability for open gutter between curb and crosswalk question 
 for jury; Comiskie v. Ypsilanti, 116 Mich. 322, 74 N. W. 487, holding city's liabil- 
 ity for ditch at point where beaten path crossed street, question for jury; Shaw 
 v. Saline Twp. 113 Mich. 345, 71 N. W. 642, and Gage v. Pontiac, 0. & N. R. Co. 105 
 Mich. 341, 63 N. W. 318, holding necessity of railing on bridge approach question 
 for jury; Schillinger v. Verona, 88 Wis. 323, 60 N. W. 272, holding question of 
 suliiciency of unrailed approach to bridge, for jury; Lauder v. St. Clair Twp. 
 125 Mich. 485, 85 N. W. 4, holding negligence in failing to maintain bridge rail- 
 ing question for jury; Speck v. Bruce Twp. 166 Mich. 558, 35 L.R.A.(N.S.) 207, 
 132 N. W. 114, holding that in action for injury on highway the question of 
 whether barriers, guards, or railings were necessary to render embankment safe 
 was for jury. 
 Notice to officers of defect In highway. 
 
 Cited in Aben v. Ecorse Twp. 113 Mich. 11, 71 N. W. 329, holding notice of 
 defective bridge shown by evidence of notorious weakness and examination by 
 town officers. 
 Contributory negligence. 
 
 Cited in Nosier v. Coos Bay R. Co. 39 Or. 337, 64 Pac. 644, holding failure to 
 act in best way in face of sudden danger not contributory negligence. 
 
 Cited in note (21 L.R.A. (N.S.) 629, 654) on contributory negligence as affect- 
 ing municipal liability for defects and obstructions in streets. 
 Question for jury. 
 
 Cited in Roux v. Blodgett & D. Lumber Co. 85 Mich. 530, 13 L. R. A. 732, 24 
 Am. St. Rep. 102, 48 N. W. 1092, holding contributory negligence of servant con- 
 tinuing to work in dangerous place, question for jury. 
 Usage as affecting requisite care. 
 
 Cited in Pennsylvania Co. v. Newby, 164 Ind. Ill, 72 N. E. 1043, holding 
 standard of care required in construction of cattleguards required of railroads 
 by statute not determined by usage of first class railroads in form used. 
 
 Cited in note (8 Eng. Rul. Cas. 336) on necessity that custom be limited, 
 certain, reasonable, and of lawful origin. 
 
 6 L. R. A. 702, HARRIS v. SMITH, 79 Mich. 54, 44 N. W. 169. 
 Right of relative to compenHatlon for services. 
 
 Cited in Kirchgassner v. Rodick, 170 Mass. 546, 49 N. E. 1015, holding that 
 stepchild cannot recover for services where the relation with stepfather is that 
 of parent and child. 
 
 Cited in footnote to Ulrich v. Ulrich, 18 L. R. A. 37, which holds that no pre- 
 
6 L.R.A. 702] L. R. A. CASES AS AUTHORITIES. 1172 
 
 sumption exists against parent's agreement to pay for services where evidence 
 tends to show agreement. 
 
 Cited in notes (11 L.R.A. (N.S.) 885, 893, 894, 899) on implication of agree- 
 ment to pay for services of relative or member of household; (23 Am. St. Rep. 
 332) on services of minor child; (133 Am. St. Rep. 255) on presumption of 
 gratuitous services by relations. 
 Agency of wife for husband. 
 
 Cited in Roup v. Roup, 136 Mich. 393, 99 N. W. 389, on agency of mother to 
 act for father in delivery of deed to son. 
 
 6 L. R. A. 703, SUTTON v. HIRAM LODGE NO. 51, 83 Ga. 770, 10 S. E. 585. 
 Tenancy by sufferance. 
 
 Cited in Willis v. Harrell, 118 Ga. 909, 45 S. E. 794, holding it arises where 
 tenant by month whose year expires with end of calendar year, remains in 
 possession thereof. 
 
 6 L. R. A. 705, RAMSAY v. THOMPSON, 71 Md. 315, 18 Atl. 592. 
 Right of parent to appointment as guardian of child. 
 
 Cited in notes (65 L.R.A. 690, 695, 696) on right of mother, or reputed 
 father, of illegitimate to its custody or control; (13 L.R.A. (N.S.) 294) on 
 effect of attempt by father to appoint guardian for child against surviving 
 mother; (33 L.R.A. (N.S.) 870) on right of parent to appointment as guardian 
 of minor. 
 
 6 L. R. A. 706, BALTIMORE & O. R. CO. v. STATE, 72 Md. 36, 20 Am. St. Rep. 
 
 454, 18 Atl. 1107. 
 Who are passengers. 
 
 Cited in Boston Ins. Co. v. Chicago, R. I. & P. R. Co. 118 Iowa, 434, 59 L. R. 
 A. 801, 92 N. W. 88; Libby v. Maine, C. R. Co. 85 Me. 39, 20 L. R. A. 814, 26 
 Atl. 943, holding carrier owes same degree of care to postal clerk as to pas- 
 sengers; Cleveland, C. C. & S. L. R. Co. v. Ketcham, 133 Ind. 354, 19 L. R. A. 
 342, 36 Am. St. Rep. 550, 33 N. E. 116, holding postal clerk with photographic 
 commission, and entitled to free transportation, a passenger; Voight v. Balti- 
 more & O. S. W. R. Co. 79 Fed. 562, holding express messenger passenger for 
 hire, although traveling in special car provided by carrier; Illinois C. R. Co. 
 v. Porter, 117 Tenn. 19, 94 S. W. 666, 10 A. & E. Ann. Cas. 789, holding railway 
 postal clerk in discharge of duties on railway train is passenger; Barker v. 
 Chicago, P. & St. L. R. Co. 243 111. 491, 26 L.R.A. (N.S.) 1062, 134 Am. St. 
 Rep. 382, 90 N. E. 1057; Chesapeake & 0. R. Co. v. Patton, 23 App. D. C. 121, 
 holding railway postal clerk a passenger. 
 
 Cited in notes (19 L.R.A. 340) on liability of railroad companies for injuries 
 received by postal clerks on their trains; (61 Am. St. Rep. 99, 100) on who 
 are passengers and when they become such. 
 
 Distinguished in Yarrington v. Delaware & H. Co. 143 Fed. 567, holding, 
 under Pennsylvania statute, railway mail clerk not passenger while engaged in 
 performance of his duties. 
 Contributory negligence. 
 
 Cited in Florida Southern R. Co. v. Hirst, 30 Fla. 26, 16 L. R. A. 636, 32 Am. 
 St. Rep. 17, 11 So. 506, holding that carrier's rule forbidding passengers to ride 
 in express cars may be waived or abandoned; Winkelmann & B. Drug Co. v. 
 Colladay, 88 Md. 92, 40 Atl. 1078, holding it not to be negligence per se for em- 
 ployee to put head in shaft while dumb waiter not in motion; Conowingo Bridge 
 Co. v. Hedrick, 95 Md. 681, 53 Atl. 430, holding it not to be negligence per se 
 
1173 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 713 
 
 to enter unlighted covered toll bridge at night; McCarthy v. Clark, 115 Md. 
 464, 81 Atl. 12, holding that question of contributory negligence was for jury 
 where woman carrying child at night fell across obstruction in sidewalk con- 
 sisting of frame for manhole to be used in construction of sewer; Benson v. 
 New York, N. H. & H. R. Co. 26 R. I. 412, 59 Atl. 79 (dissenting opinion), on 
 conduct amounting to contributory negligence per se. 
 Passengers riding- In Improper place or car. 
 
 Cited in Miller v. Atlanta & C. Air Line R. Co. 144 N. C. 553, 57 S. E. 345, 
 holding taking seat in front part of caboose not a bar to recovery for injury 
 from backing car into caboose, unless such conduct proximately caused or con- 
 curred in causing injury; Lane v. Choctaw, 0. & G. R. Co. 19 Okla. 338, 91 
 Pac. 883, holding it not negligence per se for passenger to take seat in baggage 
 car, when passenger cars are crowded or passenger is unable to observe any 
 vacant seats; Baltimore & P. R. Co. v. Jean, 98 Md. 549, 57 Atl. 540, holding 
 it not per se contributory negligence for passenger to go to platform where 
 train slows up and conductor enters car and twice calls "all out" for named 
 station, the passenger not acting imprudently or recklessly. 
 
 Cited in footnote to Florida C. & P. R. Co. v. Sullivan, 61 L. R. A. 410, which 
 denies negligence of white passenger in riding in car set apart for negroes. 
 
 Cited in note (16 L. R. A. 631) on passengers riding in baggage or express car 
 as contributory negligence. 
 
 6 L. R. A. 708, FALLON v. WORTHINGTON, 13 Colo. 559, 16 Am. St. Rep. 231, 
 
 22 Pac. 960. 
 Vendor's lien not Interest In property. 
 
 Cited in Griffin v. Seymour, 15 Colo. App. 491, 63 Pac. 809, holding grantor's 
 lien not interest in land supporting mechanic's lien. 
 
 Distinguished in Green v. Daniels, 53 C. C. A. 381, 115 Fed. 451, holding inter- 
 est in land of vendor retaining title vendible under execution. 
 Estoppel In pals. 
 
 Cited in Lewis v. Jerome, 44 Colo. 471, 130 Am. St. Rep. 131, 99 Pac. 562, 
 holding heirs who with knowledge of transaction keep fact of their heirship con- 
 cealed while widow, who is administratrix, takes conveyance from third party 
 under contract with deceased and sells land and converts money, estopped after 
 administration closed to sue such third party for damages for unlawful con- 
 veyance. 
 Property subject to sale under execution. 
 
 Distinguished in Reed v. Munn, 80 C. C. A. 215, 148 Fed. 748, holding, under 
 statute, equ Stable interest of claimants to mining location under trust agreement 
 for adjustment of conflicting claims, subject to seizure and sale under execution. 
 
 6 L. R. A. 713, Ex parte HARRIS, 26 Fla. 77, 23 Am. St. Rep. 548, 7 So. 1. 
 When judge disqualified. 
 
 Cited in State ex rel. Perez v. Wall, 41 Fla. 465, 49 L. R. A. 549, footnote 
 p. 548, 79 Am. St. Rep. 195, 26 So. 1020, holding judge cannot sit where wife's 
 niece's husband interested; Bryan v. State. 41 Fla. 657, 26 So. 1022, holding bias 
 or prejudice against accused does not disqualify judge. 
 
 Cited in footnotes to Meyer v. San Diego, 41 L. R. A. 762, which holds judge 
 owning land in city disqualified to sit in suit contesting validity of contract to 
 issue city bonds; First Nat. Bank v. McGuire, 47 L. R. A. 413, which holds judge 
 disqualified to try case in which plaintiff is corporation of which his wife is a 
 shareholder. 
 
6 L.R.A. 713] L. R. A. CASES AS AUTHORITIES. 117* 
 
 Cited in notes (30 Am. St. Rep. 153) on disqualification of judges; (79 Ain. 
 St. Rep. 199, 200, 201) on affinity as disqualification of judge. 
 Hit: hi of accused to bail. 
 
 Cited in note (8 Eng. Rul. Cas. 110) on right of accused to bail. 
 
 6 L. R. A. 714, FORD v. JUDSONIA MERCANTILE CO. 52 Ark. 426, 20 Am. 
 St. Rep. 192, 12 S. W. 876. 
 
 Report of decision as to right of secured creditor to retain security in Taylor 
 v. Judsonia Mercantile Co. 56 Ark. 462, 19 S. W. 1065. 
 Conflict of jurisdiction; effect of prior possession. 
 
 Cited in Walker v. George Taylor Commission Co. 56 Ark. 2, 18 S. W. 1056; 
 holding property in receiver's hands not subject to attachment; Gilkerson-Sloss 
 Commission Co. v. Carnes, 56 Ark. 417, 19 S. W. 1061, holding that equity will 
 not, to avoid multiplicity of suits, enjoin execution of attachments. 
 
 6 L. R. A. 715, GARNER v. WRIGHT, 52 Ark. 385, 12 S. W. 785. 
 Rule as to prevailing? law in absence of proof. 
 
 Cited in Brown v. Wright, 58 Ark. 26, 21 L. R. A. 473, 22 S. W. 1022, holding 
 in absence of proof as to law of Texas, rules of common law will not be presumed 
 to exist there; Johnson v. State, 60 Ark. 312, 30 S. W. 31, holding common law 
 not be presumed to exist in Indian territory; Pyeatt v. Powell, 2 C. C. A. 37 1 ? 
 10 U. S. App. 200, 51 Fed. 555, holding that in Federal Courts in Indian terri- 
 tory, rule of decision in absence of statute or proof is common law; Gatton v. 
 Chicago, R. I. & P. R. Co. 95 Iowa, 136, 28 L. R. A. 564, 63 N. W. 589, holding 
 that no Federal common law exists as distinguished from common law of the 
 several states; Kennebrew v. Southern Automatic Electric Shock Mach. Co. 106 
 Ala. 379, 17 So. 545, holding that in absence of proof of laws of other state 
 or judicial knowledge of its origin, law of forum prevails; Burke v. Sharp. 88 
 Ark. 443, 115 S. W. 145, holding on attachment of property in one state in 
 suit for money advanced for use there, the laws of such state determine effect 
 of defendant's possession, though bill of sale, under which an intervenor claims r 
 was made in another state; Mathieson v. St. Louis & S. F. R. Co. 219 Mo. 551, 
 118 S. W. 9, holding court cannot presume common law is in force in another 
 state unless such state has taken common law as basis of its jurisprudence. 
 
 Cited in notes (21 L. R. A. 473) on presumption as to law of other states; 
 (64 L.R.A. 360) on conflict of laws as to chattel mortgages; (67 L.R.A. 41, 58) 
 on how case determined when proper foreign law not proved; (34 L.R.A. (N.S.) 
 265, 272) on determination of case properly governed by unproved foreign law^ 
 (113 Am. St. Rep. 879) on proof of foreign laws and their effect. 
 Validity of chattel mortgage. 
 
 Cited in Forrester v. Kearney Nat. Bank, 49 Neb. 661, 68 N. W. 1059, holding 
 that chattel mortgage becomes valid as to creditors as of date of filing or taking 
 possession by mortgagee; Little v. National Bank, 97 Ark. 61, 133 S. W. 106, 
 holding that if mortgagee of chattels takes possession before other right or lien 
 attaches, invalidity of mortgage because of power to sell in course of trade is- 
 cured; Lee Wilson & Co. v. Crittenden, 98 Ark. 384, 135 S. W. 885, holding that 
 valid chattel mortgage may be created verbally; Frick Co. v. Oats, 20 Okla. 482 r 
 94 Pac. 682, holding mortgagee who after condition broken takes possession of 
 mortgaged property has superior title as against subsequent execution creditor, 
 though as to creditors mortgage is void because not filed for record; Gaertner 
 v. Elevator Co. 104 Minn. 471, 116 N. W. 945, holding delivery of possession 
 cures irregularity in description in chattel mortgage. 
 
1175 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 718 
 
 Cited in note (137 Am. St. Rep. 491) on effect of failure to execute and 
 record chattel mortgage as prescribed by statute. 
 
 6 L. R. A. 716, AYER v. WEEKS, 65 N. H. 248, 23 Am. St. Rep. 37, 18 Atl. 1108. 
 Consent not sufficient to confer jurisdiction. 
 
 Cited in Smith v. Hammond, 68 N. H. 364, 44 Atl. 519, holding that partners 
 cannot assign individual property of nonresident consenting partner so as to 
 confer jurisdiction not theretofore existing. 
 Domicil or residence. 
 
 Cited in Smith v. Stanley, 67 N. H. 328, 36 Atl. 254, holding temporary resi- 
 dence not sufficient to confer jurisdiction in insolvency; Schmidt v. Ellis, 69 
 N. H. 98, 38 Atl. 382, holding that insolvency court has no jurisdiction of non- 
 resident debtors; Wood v. Roeder, 45 Neb. 315, 63 N. W. 853, holding residing 
 at different place not per se constitute change of domicil. 
 
 Cited in notes (9 Eng. Rul. Cas. 808) on maintenance of original domicil until 
 establishment of new domicil; (40 L.R.A.(N.S.) 989, 990) as to whether domicil 
 is lost by abandonment without intention to return before acquiring new one. 
 Inadmissible declaration. 
 
 Cited in Fulham v. Howe, 62 Vt. 396, 20 Atl. 101, upholding refusal to admit 
 declaration as to domicil not made before controversy arose. 
 
 6 L. R. A. 717, GRIMM'S APPEAL, 131 Pa. 199, 17 Am. St. Rep. 796, 18 Atl. 
 
 1061. 
 Proof of marriage. 
 
 Cited in Com. v. Haylow, 17 Pa. Super. Ct. 546, holding cohabitation under 
 agreement for future marriage, not marriage; Wertzel v. Central Lodge, No. 19, 
 A. O. U. W. 11 Pa. Co. Ct. 270, 1 Pa. Dist, R. 145, 9 Lane. L. Rev. 245, holding 
 continued cohabitation and reputation as husband and wife raises no presumption 
 of marriage where one party was already married at its origin; Strauss's Estate, 
 14 Pa. Co. Ct. 596, 3 Pa. Dist. R. 427, 34 W. N. C. 479, as to presumption that 
 cohabitation illicit in origin continues so; Brisbin v. Huntington, 128 Iowa, 169 r 
 103 N. W. 144, 5 A. & E. Ann. Cas. 931, holding neither consent nor intention to 
 sustain relation of husband and wife can be inferred from cohabitation alone: 
 Thewlis's Estate, 217 Pa. 309, 66 Atl. 519, 15 Pa. Dist. R. 362, on presumption 
 of marriage where parties in good faith continue to live together as husband and 
 wife after removal of only obstacle in way of valid marriage; Com. v. Gamble, 
 36 Pa. Super. Ct. 151, holding presumption of marriage arises from cohabitation 
 and reputation of marriage; Wallace's Estate, 40 Pa. Super. Ct. 598, holding 
 relation shown to be illicit at commencement does not raise presumption of 
 marriage. 
 
 Cited in footnote to Nims v. Thompson, 17 L. R. A. 847, which holds marriage 
 shown by evidence. 
 
 Cited in notes (14 L.R.A. 364) on cohabitation as proof of marriage where 
 it begins unlawfully; (124 Am. St. Rep. 109) on common-law marriages; (17 
 Eng. Rul. Cas. 171. 176) on what constitutes a valid marriage. 
 Inheritance by surviving party to void marriage. 
 
 Cited in note (96 Am. St. Rep. 271) on right of surviving party to void marriage 
 to estate of other party. 
 
 6 L. R. A. 718, BAKER v. BRASLIN, 16 R. I. 635, 18 Atl. 1039. 
 Survivability of actions. 
 
 Cited in Brown v. Kellogg, 182 Mass. 298, 65 N. E. 378, holding libel action 
 against partners not abated by death of one. 
 
6 L.R.A. 718] L. R. A. CASES AS AUTHORITIES. 1176 
 
 Cited in footnote to Perkins v. Stein, 20 L. R. A. 861, which holds that action 
 for negligently driving over person will survive. 
 Torts of -wife. 
 
 Cited in McElroy v. Capron, 24 R. I. 563, 54 Atl. 44, holding under statute, 
 husband not liable for torts of wife unless be participates therein, when he is 
 jointly liable. 
 
 Cited in footnote to Henley v. Wilson, 58 L. R. A. 941, which sustains hus- 
 band's common-law liability for wife's torts. 
 
 Cited in notes (30 L.R.A. 521) on liability of husband and wife for wife's 
 libel and slander; (131 Am. St. Rep. 148) on liability of married women for 
 torts. 
 
 6 L. R. A. 719, O'REILLY v. NEW YORK & N. E. R. CO. 16 R. I. 395, 19 
 
 Atl. 244. 
 Pendency of other suit. 
 
 Cited in footnote to Sulz v. Mutual Reserve Fund Life Asso. 28 L. R. A. 379, 
 which holds pending action on policy by administrator in staie where insured 
 died bar to action by widow in state of home office. 
 Conflict of laws. 
 
 Cited in Hancock Nat. Bank v. Farnum, 20 R. I. 471, 40 Atl. 341, holding action 
 to enforce stockholder's liability not maintainable in other state. 
 
 Cited in notes (15 L. R. A. 584) on rights of action for causing death accru- 
 ing under foreign statute; (56 L. R. A. 204, 210, 222) on conflict of laws as to 
 action for death or bodily injury. 
 \v h-ii statutory cause of action is penal. 
 
 Cited in Matheson v. Kansas City, Ft. S. & M. R. Co. 61 Kan. 670, 60 Pac. 
 747, holding statute providing for forfeiture of fixed sum for negligently causing 
 death, penal. 
 
 Distinguished in Gardner v. New York & N. E. R. Co. 17 R. I. 792, 24 Atl. 
 831, holding statute giving action for, and limiting recovery to, loss sustained by 
 negligence, not penal; Aylsworth v. Curtis, 19 R. I. 523, 33 L. R. A. 112, 61 Am. 
 St. Rep. 785, 34 Atl. 1109, holding action for twice value of stolen article not 
 restored, not penal. 
 
 <5 L. R. A. 721, DICKINSON v. EICHORN, 78 Iowa, 710, 43 N. W. 620. 
 Res judicata. 
 
 Cited in State ex rel. Vidal v. Lamoureux, 3 Wyo. 733, 30 Pac. 243, holding 
 legality of incorporation adjudicated in mandamus not reviewable in quo war- 
 ranto action, though parties nominally different; McConkie v. Remley, 119 Iowa, 
 517, 93 N. W. 505, holding adjudication deciding question whether liquor license 
 law was in force in certain place, conclusive on all liquor sellers. 
 Actions to enjoin sale of liquor. 
 
 Cited in Steyer v. McCauley, 102 Iowa, 107, 71 N. W. 194, holding liquor in- 
 junction and contempt proceeding pending thereunder bar to another citizen's 
 action for injunction for similar offense; Carter v. Bartel, 110 Iowa, 213, 81 N. 
 W. 462, holding permanent injunction restraining firm from liquor selling effect- 
 ive against members after change in firm name; Cameron v. Tuckef, 104 Iowa, 
 214, 73 N. W. 601, holding injunction collusively obtained no bar to subsequent 
 injunction against liquor nuisance; Brennan v. Roberts, 125 Iowa, 617. 101 X. W. 
 460, holding decree restraining sale of liquor res adjudicata to another suit by any 
 person against same place and defendant, though decree is obtained by nonresi- 
 dent attorney and not by county attorney. 
 
1177 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 724 
 
 Distinguished in Carter v. Steyer, 93 Iowa, 535, 61 N. W. 956, holding injunc- 
 tion no bar to injunction against liquor nuisance on different premises owned by 
 codefendant not previously enjoined. 
 Injunction of liquor nuisance. 
 
 Cited in Bartel v. Hobson, 107 Iowa, 647, 78 N. W. 689, holding violation of 
 decree for injunction against liquor nuisance, rendered in defendant's presence, 
 contempt, though no order issued. 
 
 Cited in footnotes to Laugel v. Bushnell, 58 L. R. A. 266, which sustains or- 
 dinance declaring places where hop ale, hop and malt meal and cider sold, 
 nuisances; De Blane v. New Iberia, 56 L. R. A. 285, which denies city's power to 
 arbitrarily declare particular licensed saloon a nuisance; Kirkland v. State, 65 
 L.R.A. 76, which holds that legislature may provide for destruction of liquor kept 
 for illegal sale, without granting owner jury trial. 
 
 Cited in note (7 L. R. A. 299) on abatement of liquor nuisance. 
 Plaintiff represents public. 
 
 Cited in Geyer v. Douglass, 85 Iowa, 101, 52 N. W. Ill, holding that state or 
 citizen may be substituted for plaintiff in action to enjoin liquor nuisance dying 
 pending appeal; Cameron v. Kapinos, 89 Iowa, 564, 56 N. W. 677, holding that 
 plaintiff in action to enjoin liquor nuisance may maintain action to make fine 
 lien on premises. 
 
 6 L. R. A. 724, PEOPLE'S BANK v. FRANKLIN BANK, 88 Tenn. 299, 17 Am. 
 
 St. Rep. 884, 12 S. W. 716. 
 Recovery of money pnid on forgred check. 
 
 Cited in Indiana Nat. Bank v. First Nat. Bank, 9 Ind. App. 188, 36 N. E. 382, 
 holding that ground for making indorsing bank liable was that its indorsement 
 in part brought about failure to discover forgery; Canadian Bank of Commerce 
 v. Bingham, 30 Wash. 495, 60 L. R. A. 959, 71 Pac. 43, holding that drawee bank 
 may recover amount of forged check paid to bank cashing it without inquiry or 
 requiring identification; Germania Bank v. Boutell, 60 Minn. 192, 27 L. R. A. 641, 
 51 Am. St. Rep. 519, 62 X. W. 327, holding bank paying forged check of depositor 
 cannot recover from bona fide holder to whom paid; First Nat. Bank v. First 
 Xat. Bank, 58 Ohio St. 215, 41 L. R. A. 586, 65 Am. St. Rep. 748, 50 N. E. 723, 
 holding genuineness of names of indorsers but not of drawer guaranteed by in- 
 dorsing note "for collection;" Deposit Bank v. Fayette Nat. Bank, 90 Ky. 19, 
 
 7 L. R. A. 851, 13 S. W. 339, holding where parties are equally innocent, drawee 
 paying amount of forged check must suffer; Ford v. People's Bank, 74 S. C. 183, 
 10 L.R.A.(N.S.) 68, 114 Am. St. Rep. 986, 54 S. E. 204, 7 A. & E. Ann. Cas. 744, 
 holding holder of forged draft can retain money obtained thereon only where 
 he can show whole responsibility of determining validity of signature was on 
 drawee and negligence of drawee not lessened by any disregard of duty on hold- 
 er's part, and also citing annotation on this point: Wellington Nat. Bank v. 
 Robbins, 71 Kan. 750, 114 Am. St. Rep. 523, 81 Pac. 487, holding drawee which 
 has paid check which another had purchased, containing false indorsement, can 
 recover from such purchaser on such forged instrument; Greenwald v. Ford, 21 
 S. D. 39, 109 N. W. 516; State Bank v. First Nat. Bank, 87 Neb. 355, 29 L.R.A. 
 (N.S.) 103, 127 N. W. 244, to the point that bank cashing check drawn on an- 
 other bank is bound to use all means at its command to ascertain genuineness of 
 check; Bank of Williamson v. McDowell County Bank, 66 W. Va. 552. 36 L.R.A. 
 (N.S.) 609, 66 S. E. 761, to the point that if party take check payable to his 
 order from stranger without inquiry, and give it currency and credit by indorsing 
 it before receiving payment, the drawee may recover back money. 
 
 Cited in notes (27 L.R.A. 637) on drawee's duty to know signature of bank; 
 
6 L.R.A. 724] L. R. A. CASES AS AUTHORITIES. 1178 
 
 (10 L.R.A. (N.S.) 55, 58, 60, 65, 66, 72) on right of drawee to recover money paid 
 on forged check or draft; (94 Am. St. Rep. 646) on liability of one receiving 
 payment of check through forged indorsement. 
 
 Distinguished in Farmers' & M. Bank v. Bank of Rutherford, 115 Tenn. 67, 112 
 Am. St. Rep. 817, 88 S. W. 939, holding drawee bank cannot recover from remote 
 indorser where draft is to one or bearer, and such drawee pays draft and holds 
 it for thirty days or more, there being no negligence on part of indorser. 
 
 Disapproved in First Nat. Bank v. Bank of Wyndmere, 15 N. D. 303, 10 L.R.A. 
 (N.S.) 56, 125 Am. St. Rep. 588, 108 N. W. 546, holding drawee may on discovery 
 of forgery, where he has paid check to purchaser without detecting forgery, re- 
 cover money so paid, though purchaser was good faith holder, if he has not been 
 misled or prejudiced by drawee's failure to detect forgery. 
 
 6 L. R. A. 727, HANNA v. CHATTANOOGA & N. R. CO. 88 Tenn. 310, 12 S. W. 
 
 718. 
 Liability of lessor of railroad for negligence of lessee. 
 
 Cited in Arrowsmith v. Nashville & D. R. Co. 57 Fed. 172, holding lessor 
 under valid lease not liable for injury to lessee's passenger due to lessee's negli- 
 gence; Hukill v. Mayville & B. S. R. Co. 72 Fed. 755, holding that servant of 
 lessee under void lease cannot recover from lessor for injury due to lessee's neg- 
 ligence; Travis v. Kansas City, S. & G. R. Co. 119 La. 491, 10 L.R.A. (N.S.) 1189, 
 121 Am. St. Rep. 526, 44 So. 274. holding employee of lessee cannot recover from 
 lessor railroad for injuries in failing to have yard properly lighted. 
 
 Cited in note (44 L. R. A. 753) on liability of lessor of railroad for injuries 
 caused by negligence of another company using road under lease, license, or other 
 contract. 
 Liability of carrier furnishing cars to shipper. 
 
 Cited in Roddy v. Missouri P. R. Co. 104 Mo. 249, 12 L. R. A. 750, 24 Am. 
 St. Rep. 333, 15 S. W. 1112, holding that carrier under contract to furnish cars 
 to quarryman must use ordinary care to provide such as are reasonably safe. 
 Negligence of fellow servants. 
 
 Cited in note (46 L. R. A. 38, 67) on right of servant to recover damages from 
 persons other than his master for injuries received in performance of his duties. 
 Relation of master and servant. 
 
 Cited in note (22 Am. St. Rep. 478) as to when relation of master and servant 
 -exists. 
 Liability for negligence of Independent contractor. 
 
 Cited in note (76 Am. St. Rep. 411) on liability for negligence of independent 
 contractors performing railroad work. 
 
 6 L. R. A. 728, LACY v. GETMAN, 119 N. Y. 109, 16 Am. St. Rep. 806, 23 N. E. 
 
 452- 
 Contracts for personal service for specified term. 
 
 Distinguished in effect in Walton v. Rafel, 7 Misc. 667, 28 N. Y. Supp. 10, 
 holding contract in terms binding on legal representatives assignable. 
 Termination by death of party. 
 
 Cited in Arming v. Steinway, 35 Misc. 222, 71 N. Y. Supp. 810, holding con- 
 tract to teach pupils selected by employer terminated by his death ; Blakdy 
 v. Sousa, 197 Pa. 321, 80 Am. St. Rep. 821, 47 Atl. 286, holding contract be- 
 tween manager and leader of band terminated by manager's death; Mason v. 
 Secor, 76 Hun, 180, 27 N. Y. Supp. 570, and Greenburg v. Early, 4 Misc. 100, 
 23 N. Y. Supp. 1009, holding that contract of employment for fixed term ends 
 
1179 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 731 
 
 on dissolution of employing copartnership by member's death; Skinner v. Busse, 
 38 Misc. 2G6, 77 N. Y. Supp. 560, holding relation of attorney and client ter- 
 minated by client's death. 
 
 Cited in notes (65 L.R.A. 465; 5 L.R.A.(N.S.) 1002) on termination of employ- 
 ment by master's death; (21 L.R.A.(N.S.) 917, 921, 922, 924) on termination of 
 contract of employment by death of party. 
 
 Distinguished in effect in Russell v. Buckhout, 87 Hun, 47, 34 N. Y. Supp. 271, 
 holding contract for erection of building on decedent's land not dissolved by 
 his death. 
 What excuses nonperforinance. 
 
 Cited in McClellan v. Harris, 7 S. D. 451, 64 N. W. 522, holding that unavoid- 
 able illness excuses nonperformance of contract to labor for specified term; 
 Jerome v. Queen City Cycle Co. 163 N. Y. 356, 57 N. E. 485, holding that 
 servant's absence contrary to master's reasonable commands justifies discharge; 
 Edgecomb v. Buckhout, 146 N. Y. 339, 28 L. R. A. 818, 40 N. E. 991, holding 
 marriage of housekeeper, not preventing performance of services, no ground for 
 discharge. 
 
 Cited in notes (24 L.R.A.(N.S.) 815) on duty to obey master's orders; (17 Eng. 
 Rul. Cas. 211) on right to discharge servant for long illness. 
 
 Distinguished in effect in Hart v. Myers, 25 Abb. N. C. 480, 12 N. Y. Supp. 140, 
 holding illness of one contracting to render services as stockbroker not excuse 
 nonperformance. 
 
 6 L. R. A. 731, WEIGHT v. MUTUAL BEN. LIFE ASSO. 118 N. Y. 237, 16 Am. 
 
 St. Rep. 749, 28 N. Y. S. R. 817, 23 N. E. 186. 
 Limitation by contract. 
 
 Cited in Matthews v. American Cent. Ins. Co. 9 App. Div. 341, 41 N. Y. 
 ?upp. 304, holding that parties to insurance contract may limit time within 
 which rights thereunder are to be asserted. 
 Defense of fraud. 
 
 Followed in Kansas Mut. L. Ins. Co. v. Whitehead, 123 Ky. 29, 93 S. W. 609. 
 13 A. & E. Ann. Cas. 301, holding incontestability clause after two-year period 
 precludes forfeiture thereafter for fraudulent representations as to health. 
 
 Cited in Massachusetts Ben. Life Asso. v. Robinson, 104 Ga. 275, 42 L. R. A. 
 270, 30 S. E. 918, holding that insurer cannot set up fraudulent representation 
 after three years, contrary to incontestable clause in policy; Patterson v. Natural 
 Premium Mut. L. Ins. Co. 100 Wis. 127, 42 L. R. A. 260, 69 Am. St. Rep. 899, 
 75 N. W. 980, holding fraudulent intent or concealment by insured as to 
 health covered by incontestable clause; Bates v. United Life Ins. Asso. 68 Hun, 
 146, 22 N. Y. Supp. 626, holding that defense that material statements in appli- 
 cation were false, cannot be set up after two years contrary to provision in 
 policy that it shall be indisputable after that period; Murray v. State Mut. 
 Life Assur. Co. 22 R. I. 525, 53 L. R. A. 743, 48 Atl. 800, holding that clause 
 making policy incontestable for fraud in application after two years merely 
 provides short statute of limitations; Clement v. New York L. Ins. Co. 101 
 Tenn. 30, 42 L. R. A. 249, 70 Am. St. Rep. 650, 46 S. W. 561, holding that 
 stipulation that policy shall be incontestable after one year limits time in which 
 insurer may set up fraud to one year; Peoria Life Asso. v. Hines, 132 111. App. 
 650, holding incontestability clause bars defense of misstatements in application 
 as to previous health; Austin v. Mutual Reserve Fund Life Asso. 132 Fed. 560, 
 on validity of policy delivered contrary to provisions therein; Prudential Ins. Co. 
 v. Mohr, 185 Fed. 938, to the point provision that policy of insurance shall be in- 
 contestible for fraud after specified time, not unreasonably short is valid; Citi- 
 
6 L.R.A. 731] L. R. A. CASES AS AUTHORITIES. 1180 
 
 zens' L. Ins. Co. v. McClure, 138 Ky. 144, 27 L.R.A.(X.S.) 1028, 127 S. W. 749, 
 holding incontestability clause after period of year if premiums are paid, pre- 
 cludes defense of fraudulent representation as to prior health, where premium 
 for second year is paid and policy renewed; Reagan v. Union Mut. L. Ins. Co. 
 189 Mass. 556, 2 L.R.A. (X.S.) 823, 109 Am. St. Rep. 659, 76 N. E. 217, 4 A. & E. 
 Ann. Cas. 362, holding provision in policy making it incontestable for fraud from 
 date of policy invalid; Hansen v. Jersey City, 79 N. J. L. 399, 71 Atl. 1116, hold- 
 ing that agreement in policy that it "shall be incontestable, except for nonpay- 
 ment of premiums, two years from date," limits all defenses including fraudu- 
 lent representations as to physical conditions; Central Trust Co. v. Fidelity Mut. 
 L. Ins. Co. 45 Pa. Super. Ct. 317, holding that provision in policy that if policy 
 is continued in force for three years it shall be incontestable except for nonpay- 
 ment of premiums is valid. 
 
 Cited in notes (42 L.R.A. 247, 249) incontestable clause as preventing defense 
 of fraud; (52 Am. St. Rep. 553) on defense of fraud to mutual or membership life 
 or accident insurance. 
 
 Distinguished in Holland v. Supreme Council, O. C. F. 54 N. J. L. 496, 2. r > 
 Atl. 367, holding fraudulent representations good defense where certificate pro- 
 vides fraud and death of member during suspension shall forfeit beneficiary's 
 rights. 
 Incontestable clause applies to reinstatement. 
 
 Cited in Teeter v. United Life Ins. Asso. 159 N. Y. 417, 54 N. E. 72, Affirming 
 11 App. Div. 263, 42 N. Y. Supp. 119, holding that provision in original con- 
 tract that policy shall be indisputable after two years applies to reinstatement. 
 Insnrable Interest. 
 
 Cited in Steinback v. Diepenbrock, 158 N. Y. 29, 44 L. R. A. 419, 70 Am. St. 
 Rep. 424, 52 N. E. 662, holding that one having no insurable interest in life of 
 another may take assignment of policy and recover thereon; Smith v. People's 
 Mut. Ben. Soc. 64 Hun, 536, 19 N. Y. Supp. 432, holding that assignee of policy_ 
 issued to son-in-law of insured may recover where relationship and assignment 
 were known by company and policy contained incontestable clause, time limit 
 in which had expired; Clement v. New York L. Ins. Co. 101 Tenn. 38, 42 L. R. A. 
 252, 70 Am. St. Rep. 650, 46 S. W. 561, holding incontestable clause not protect 
 policy assigned to one without insurable interest in pursuance of conspiracy to 
 evade rule against wagering contracts; Exchange Bank v. Loh, 104 Ga. 468, 44 
 L. R. A. 381, 31 S. E. 459, holding creditor may insure life of debtor as a pro- 
 tection against loss; McQuillan v. Mutual Reserve Fund Life Asso. 112 Wis. 675, 
 holding incontestable clause not prevent forfeiture by creditor to whom policy 
 assigned, of sum in excess of amount due him; Reed v. Provident Sav. L. Assur. 
 Soc. 190 N. Y. 119, 82 X. E. 734, holding creditor has insurable interest in life 
 of debtor. 
 
 Cited in notes (5 L.RA.(N.S.) 749) on defense of want of insurable interest, as 
 affected by incontestable clause; (87 Am. St. Rep. 511) on amount recoverable 
 from insurer by creditor; (128 Am. St. Rep. 321) on life insurance in favor of 
 persons having no insurable interest; (13 Eng. Rul. Cas. 400) on insurable in- 
 terest in life. 
 Effect of Incontestable clanse on antl-snlclde clause. 
 
 Cited in Royal Circle v. Achterrath, 204 111. 560, 63 L. R. A. 456, 98 Am. St. 
 Rep. 224, 68 N. E. 492, holding that "incontestable clause" in mutual benefit 
 certificate, not excepting death by suicide, precludes society from taking advan- 
 tage of clause relieving it from liability in such case: Supreme Court of Honor v. 
 Updegraff, 68 Kan. 478, 75 Pac. 477, 1 A. & E. Ann. Cas. 309, holding a clause in 
 
1181 L. R. A. CASES AS AUTHORITIES. [6 L.R.A.. 733 
 
 constitution that policy shall be incontestable after two years precludes defense 
 of nonliability clause in policy for suicide, where suicide occurs after lapse of 
 two-year period. 
 
 6 L. R, A. 733, CIRIACK v. MERCHANTS WOOLEN CO. 151 Mass. 152, 21 
 
 Am. St. Rep. 438, 23 N. E. 829. 
 Master's duty to warn or instruct. 
 
 Cited in Pratt v. Prouty, 153 Mass. 334, 26 N. E. 1002, holding master not 
 negligent unless he failed to give information of danger which servant could not 
 be presumed to know; Rood v. Lawrence Mfg. Co. 155 Mass. 593, 30 N. E. 174, 
 holding that master need not instruct servant set to working elevator, as to 
 obvious danger; Patnode v. Warren Cotton Mills, 157 Mass. 289, 34 Am. St. 
 Rep. 275, 32 N. E. 161, to point failure to instruct young, inexperienced, or dull 
 servant, negligence; Riehstain v. Washington Mills Co. 157 Mass. 541, 32 N. E. 
 DOS, holding failure to instruct not negligence when considering servant's age, 
 intelligence, and experience; Rooney v. Sewall & D. Cordage Co. 161 Mass. 160, 
 36 N. E. 789, holding that master need not warn experienced servant of middle 
 age, of danger of coming in contact with set-screw projecting from revolving 
 shaft; Ruchinsky v. French, 168 Mass. 70, 46 N. E. 417, holding that master 
 need not warn adult employee of ordinary intelligence that if she put her hand 
 between revolving cog-wheels she would be hurt; O'Connor v. Whittall, 169 Mass. 
 569, 48 X. E. 844, holding that servant assumes obvious risk of having hand 
 cut in roller; Lemoine v. Aldrich, 177 Mass. 91, 58 N. E. 178, holding that 
 master need not warn servant of danger of getting cut while passing under re- 
 volving shaft; Silvia v. Sagamore Mfg. Co. 177 Mass. 479, 59 N. E. 73, holding 
 that master not negligent in failing to warn boy of ordinary intelligence and 
 fourteen years of age, of danger of getting fingers caught in gearing; Gaudet v. 
 Stansfield, 182 Mass. 454, 65 N. E. 850. holding that master need not instruct 
 servant of average intelligence, nineteen years of age, of danger of catching 
 fingers in revolving roller of steam mangle; Day v. Achron, 23 R. I. 630, 50 
 Atl. 654 (dissenting opinion), majority holding girl of sixteen accustomed to 
 operate mangle in laundry assumed incidental risks; Boyd v. Taylor, 195 Mass. 
 275, 81 N. E. 277, holding master liable for injury from calling operator from 
 regular work and setting him to work on other machine without warning or in- 
 struction, where operator is inexperienced and has no opportunity to become ac- 
 quainted with risk and danger is hidden; Bollington v. Louisville & N. R. Co. 125 
 Ky. 192, 8 L.R.A.(X.S.) 1047, 100 S. W. 850, holding boy of nineteen having some 
 knowledge and experience, although slight, assumes risk of injury from explosion 
 on mixing lime and water, without special warning or instruction; Doolan v. 
 Pocasset Mfg. Co. 200 Mass. 203, 85 X. E. 1055, holding master negligent for 
 failure to warn boy of fifteen of danger from freight elevator where boy is 
 mentally deficient; Ruddy v. George F. Blake Mfg. Co. 205 Mass. 181, 91 N. E. 
 310, holding that master is required to give warning to servant where he orders 
 him to use defective machinery; Goto v. D. W. Pingree Co. 205 Mass. 290. 91 
 N. E. 300, holding that master is justified in giving only such warnings and in- 
 structions which workman of ordinary intelligence woiild require, while he has 
 no notice or reasonable ground to believe that employee is mentally deficient; 
 A. H. Jacoby Co. v.. Williams, 110 Va. 62, 65 S. E. 491, holding that master is 
 not bound to warn adult servant of sound mind of existence of dangers that are 
 visible and which he could not fail to comprehend. 
 
 Cited in footnote to Davis v. St. Louis, I. M. & S. R. Co. 7 L. R. A. 283, 
 which holds unappreciated risk not assumed by youthful employee. 
 
 Cited in notes (44 L. R. A. 36) duty of master to warn servant of danger; 
 
6 L.R.A. 733] L. R. A. CASES AS AUTHORITIES. 1182 
 
 (44 L.R.A. 68) whether knowledge of danger is to be imputed to minor; (1 L.R.A. 
 (X.S.) 669) on duty to tell employee when ordered to perform special service, to- 
 give warning to coemployees; (29 L.R.A. (N.S.) 113, 114) on duty to warn minor 
 servant already aware of dangers; (23 Am. St. Rep. 165) on duty to warn or 
 instruct minor employee. 
 Evidence as to servant's capacity. 
 
 Cited in Leistritz v. American Zylonite Co. 154 Mass. 384, 28 N. E. 275, holding 
 testimony whether plaintiff was above or below average intelligence, inadmissi- 
 ble as not showing he was manifestly incapable of understanding risk without: 
 instruction; Berdos v. Tremont & S. Mills, 209 Mass. 495, 95 N. E. 876, Ann. Cas. 
 1912 B. 797, holding that there is no presumption from age of child as to his; 
 capacity to exercise due care, and the fact is to be determined in each case as it 
 arises; Ewing v. Lanark Fuel Co. 65 W. Va. 732, 29 L.R.A. (N.S.) 494, 65 S. E. 200, 
 holding child thirteen years and nine months old presumed not to possess suf- 
 ficient mental capacity to comprehend danger, and burden is on employer to prove 
 capacity; Morancy v. Hennessey, 24 R. I. 208, 52 Atl. 1021, holding allegation in 
 complaint that injured minor was of less than average intelligence, supported 
 alone by reiteration of counsel not sufficient to establish such fact. 
 Question tor jury. 
 
 Cited in Patnode v. Warren Cotton Mills, 157 Mass. 284, 34 Am. St. Rep. 275, 
 32 N. E. 161, holding weight of evidence that plaintiff was not very smart, but 
 was rather dull, for jury. 
 Assumption of risk. 
 
 Cited in note (97 Am. St. Rep. 888) on assumption of risk. 
 
 6 L. R. A. 736, BENNETT v. McINTIRE, 121 Ind. 231, 23 N. E. 78. 
 Trespass. 
 
 Cited in Keaton v. Snider, 14 Ind. App. 67, 42 N. E. 372, holding wrongful 
 entry by cattle upon land and destruction of growing corn, trespass; Spades v. 
 Murray, 2 Ind. App. 406, 28 N. E. 709, holding abuse of owner's authority to 
 enter upon land not constitute trespass; Reed v. Maley, 25 Ky. L. Rep. 211, 62 
 L. R. A. 902, footnote p. 900, 74 S. W. 1079, holding soliciting woman to sexual 
 intercourse, not actionable; Sheftall v. Zipperer, 133 Ga. 493, 27 L.R.A.(N.S.) 
 446, 66 S. E. 253, holding police officer who enters house to make search, under 
 invitation of wife of plaintiff, not trespasser ab initio; Reed v. Maley, 115 Ky. 
 822, 62 L.R.A. 900, 74 S. W. 1079, 2 A. & E. Ann. Cas. 453, holding woman does, 
 not have cause of action against man who, without trespass or assault, solicits 
 her to have sexual intercourse with him. 
 Local actions. 
 
 Cited in Du Breuil v. Pennsylvania Co. 130 Ind. 138, 29 N. E. 909, holding 
 that action for trespass must be brought in county where land is situated. 
 Incidental damages. 
 
 Cited in Hamilton v. Toner, 17 Ind. App. 395, 46 N. E. 921, holding that 
 where principal cannot be collected in action for tort, interest and damages for 
 failure to pay cannot be collected in tort. 
 Pleading fraud. 
 
 Cited in Guy v. Blue, 146 Ind. 632, 45 N. E. 1052, holding facts constituting 
 fraud must be distinctly averred; Bullock v. Wooldridge, 42 Mo. App. 362; 
 Balue v. Taylor, 136 Ind. 374, 36 N. E. 269; Hartman v. International Bldg. 
 & L. Asso. 28 Ind. App. 67, 62 X. E. 64; Smith v. Parker, 148 Ind. 133, 45 N. E. 
 770, holding that allegations must show representations of existing facts, anct 
 not promises. 
 
1183 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 737 
 
 Limited in Ray v. Baker, 165 Lnd. 83, 74 X. E. 619, holding pleading need not 
 minutely state all of the facts and circumstances tending to establish charge. 
 Fraudulent representations. 
 
 Cited in Gipe v. Pittsburgh, C. C. & St. L. R. Co. 41 Ind. App. 161, 82 N. E. 471, 
 holding release of liability of railroad executed by widow who accepts benefit 
 certificate provision, should be upheld unless it was induced by fraud whereby 
 widow was misled into settlement she would not have accepted otherwise. 
 
 6 L. R. A. 737, McCLAIN v. NEW CASTLE, 130 Pa. 546, 25 W. N. C. 246, 18 
 
 Atl. 1066. 
 Abatement of nuisance by injunction. 
 
 Cited in Mowday v. Moore, 133 Pa. 612, 19 Atl. 626, and Mirkil v. Morgan, 
 134 Pa. 155, 19 Atl. 628, holding that final injunction will not be granted against 
 maintenance of nuisance unless right has been first established at law or is 
 conceded; Evans v. Reading Chemical Fertilizing Co. 160 Pa. 216, 28 Atl. 702, 
 holding that injunction will not issue in doubtful case until right has been 
 established at law; Wood v. McGrath, 150 Pa. 458, 16 L. R, A. 718, 24 Atl. 682, 
 holding injunction to restrain maintenance of private drain will not be granted 
 unless right of removal has been first established at law; Easton, S. E. & W. E. 
 Pass. R. Co. v. Easton, 133 Pa. 520, 19 Am. St. Rep. 658, 19 Atl. 486, holding 
 that injunction will be granted without regard to merits of controversy re- 
 straining city authorities from summarily removing railway track as nuisance; 
 Coward v. Llewellyn, 209 Pa. 587, 58 Atl. 1066, holding equity will not interfere 
 to compel removal of buildings claimed to be on highway until legal title to land 
 is determined by court of law; United States v. Luce, 141 Fed. 418, holding 
 Federal court will abate maintenance of fish fertilizer factory near quarantine 
 station and marine hospital; Manegold v. Foundry Co. 17 Pa. Dist. R. 978. holding 
 injunction will not issue to restrain depositing of smoke, soot and gases from 
 iron foundry operated for many years in ordinary manner complainant being 
 owner of nearby property; Van Buskirk v. Bond, 52 Or. 240, 96 Pac. 1103, holding 
 equity will not interfere, where court is in doubt as to existence of nuisance 
 complained of, until questions are settled at law, unless damages apprehended 
 or sustained are irreparable; Gorman v. McDermott, 42 Pa. Super. Ct. 518, to 
 the point that party is not entitled to remedy by injunction to abate nuisance 
 where right has not been established at law or is not clear; Morey v. Black, 21 
 Montg. Co. L. Rep. 107, enjoining operation of bowling-alley, at night, in resi- 
 dential neighborhood; Union Water Co. v. Enterprise Oil Co. 21 Pittsb. L. J. N. 
 S. 160, refusing water company injunction against defiling of stream, by oil pro- 
 ducers, with salt water. 
 
 Cited in notes (1 Eng. Rul. Cas. 572; 19 Eng. Rul. Cas. 306) as to when in- 
 junction against nuisance will be granted. 
 
 Distinguished in Com. ex rel. Tyrone v. Stevens, 178 Pa. 562, 36 Atl. 166, 
 enjoining erection of wall in stream without requiring determination of right 
 in common-law action. 
 Municipal power over nuisances. 
 
 Cited in Keystone State Teleph. & Teleg. Co. v. Ridley Park, 28 Pa. Super. Ct, 
 646, holding borough may treat telephone poles and wires as nuisance where 
 company fails to perform condition precedent in contract with borough to com- 
 plete construction of lines within specified time. 
 
 Cited in notes (40 L. R. A. 469) on injunctions by municipalities against 
 nuisances affecting water courses; (38 L. R. A. 645) municipal power over 
 nuisances; (39 L. R. A. C50) municipal power over nuisances affecting highways. 
 
6 L.R.A. 737] L. R. A. CASES AS AUTHORITIES. 1184 
 
 Prescriptive rig-lit to maintain nuisance. 
 
 Cited in. notes (53 L. R. A. 89G) on prescriptive right to pollute stream; 
 (53 L.R.A. 895) on prescriptive right to carry on offensive trade; (23 Am. St. 
 Rep. 174) on prescriptive right to maintain public nuisance. 
 Obstructing: stream. 
 
 Cited in note (59 L. R. A. 850) on liability for damming back water of stream. 
 Relief in equity on disputed legal right. 
 
 Cited in Com. v. Mahoning Powder Co. 30 Pa. Co. Ct. 325, holding ordinarily 
 injunction will not be granted until right to such relief has been established by 
 jury trial; Baer v. Wilmoth, 39 Pa. Super. Ct. 77, holding equity will not proceed 
 in suit to settle boundary line and to abate nuisance in nature of waterway, 
 where it appears that real dispute was location of boundary line and that par- 
 ties had actual possession of respective properties to true boundary line; Eisen- 
 berger v. Eisenberger, 38 Pa. Super. Ct. 573, 26 Lane. L. Rev. 188, holding equity 
 may compel specific performance of parol contract to sell land. 
 
 6 L. R. A. 740, DARBY v. GILLIGAN, 33 W. Va. 246, 10 S. E. 400. 
 
 Proceeding to settle accounts of trustee in 37 W. Va. 59, 16 S. E. 507. 
 
 Proceeding to establish rights of respective creditors in 43 W. Va. 755, 28 
 S. E. 737. 
 Eqni table liens on partnership property Of partners. 
 
 Cited in Grobe v. Roup, 44 W. Va. 199, 28 S. E. 699, holding that appropria- 
 tion of partnership funds by insolvent member, may be enjoined pending ac- 
 counting. 
 
 Cited in footnote to Kincaid v. National Wall Paper Co. 54 L. R, A. 412, which 
 sustains right of partners to appropriate with other partners' consent interest 
 in firm to pay individual in preference to firm debts. 
 Of creditors of insolvent firm. 
 
 Followed in Baer's Sons v. Wilkinson, 35 W. Va. 426, 14 S. E. 1 ; Millhiser 
 v. McKinley, 98 Va. 211, 35 S. E. 446, holding sale of interest by one member 
 of insolvent to other member in consideration of latter's assumption of all firm 
 debts followed by his sale to trustee to pay his individual debts void as to 
 firm creditors; Franklin Sugar Ref. Co. v. Henderson, 86 Md. 459, 63 Am. St. 
 Rep. 524, 38 Atl. 991, holding transfer of interest in insolvent firm by retiring 
 partner to copartners continuing business, fraudulent as to creditors; Thayer v. 
 Humphrey, 91 Wis. 290, 30 L. R. A. 554, 51 Am. St. Rep. 887, 64 X. W. 1007, 
 holding partner's sale of interest in insolvent firm for purpose of paying firm 
 debts preserves rights of firm creditors; Foley v. Ruley. 50 W. Va. 165, 55 L. R. 
 A. 919, 40 S. E. 382, holding transfer of property of insolvent firm with intent 
 to defraud creditors, void. 
 
 Cited in Dewing v. Hutton, 40 W. Va. 538, 21 S. E. 780, holding creditors of 
 quasi-partnership preferred to partner's creditor; Kurner v. O'Xeil. 39 W. Va. 
 520, 20 S. E. 589. holding transfer of property by member of insolvent firm to 
 secure individual debt, void as to partnership creditors; Jackson Bank v. Durfey, 
 72 Miss. 971, 31 L. R. A. 471, 48 Am. St. Rep. 596, 18 So. 456, holding that 
 insolvent members of insolvent firm cannot use partnership property to pay in- 
 dividual debts; Reyburn v. Mitchell, 106 Mo. 376, 27 Am. St. Rep. 350, 16 S. W. 
 592, holding transfer of partnership property to pay individual debt to one 
 knowing of firm's insolvency, fraud on firm creditors; Blake v. Sargent, 152 Fed. 
 266, holding funds paid creditor of individual partner, on such partner's pur- 
 chase of other partner's interest and assumption of firm debts, could be recovered 
 by firm creditors, the firm being insolvent at time. 
 
1185 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 743 
 
 Distinguished in Hall v. Hyer, 48 W. Va. 358, 37 S. E. 594, holding improve- 
 ments on wife's property by partner retiring from solvent firm, out of individual 
 funds, not liable for firm debts. 
 It iiihl> aud duties of surviving partner. 
 
 Cited in notes (7 L. R. A. 481) on rights of surviving partner; (7 L. R. A. 
 791) on duties of surviving partner. 
 
 Criticized in McDonald v. Cash, 57 Mo. App. 549, holding sale by one of in- 
 solvent firm to another in consideration of assumption of debts, without actual 
 fraud, valid. 
 Relative rights of individual and linn creditors. 
 
 Cited in Re Terens, 175 Fed. 500, holding dissolution and transfer by partner 
 to co-operate of all his interest in insolvent partnership, although without actual 
 fraudulent intent does not bar firm creditors of right to be first paid from part- 
 nership assets. 
 
 Cited in footnotes to Clark v. Stanwood, 34 L. R. A. 378, which authorizes 
 proof of debts of solvent firm against single insolvent partner; Thayer v. 
 Humphrey, 30 L. R. A. 549, as to relative rights of individual and firm cred- 
 itors; Hundley v. Farris, 12 L. R. A. 254, which holds individual creditors 
 primarily entitled to payment out of deceased partner's estate; Re Baldwin, 
 58 L. R. A. 122, which sustains individual liability of member of banking firm, 
 signing name to certificate of deposit, enforceable against estate in preference to 
 claims against firm. 
 Validity of transfer of interest from one partner to copartner. 
 
 Disapproved in Sargent v. Blake, 17 L.R.A.(X.S.) 1046, 87. C. C. A. 213, 160 
 Fed. 65, 15 A. & E. Ann. Cas. 58, holding agreement to assume and pay debts of 
 insolvent partnership valuable consideration sufficient to support conveyance of 
 interest in partnership property. 
 
 6 L. R. A. 742, UNITED STATES v. BAYLE, 40 Fed. 664. 
 TJnmailable matter. 
 
 Cited in United States v. Elliott, 51 Fed. 808, holding postal card demanding 
 payment of past due rent not violation of Federal statute; Griffin- v. Pembroke, 
 G4 Mo. App. 269, holding whether mailing a particular postal card in violation 
 of Federal statute, question of law; Warren v. United States, 33 L.R.A.(N.S.) 
 803, 106 C. C. A. 156, 183 Fed. 721, holding that deposit in mail of stamped 
 envelope on face of which was printed in large letters "$1000 Reward will be paid 
 to any person who kidnaps Ex. Gov. Taylor and returns him to Kentucky au- 
 thorities" constituted violation of act of Congress passed Sept. 26th, 1888. 
 
 Cited in note (18 L.R.A.(X.S.) 79) as to what extent mails may be used in 
 forwarding of collection and dunning matter; (58 Am. St. Rep. 599) on criminal 
 uses of United States mail. 
 
 tf L. R. A. 743, STATE v. BARNES, 32 S. C. 14, 17 Am. St. Rep. 832, 10 S. E. 611. 
 Pardons on condition. 
 
 Cited in Fuller v. State, 122 Ala. 37. 45 L. R. A. 502, 82 Am. St. Rep. 17, 
 26 So. 146, holding that pardoning power under Constitution includes pardons 
 on condition precedent or subsequent, and breach of condition annuls pardon. 
 
 Cited in notes (5 L.R.A.(N.S.) 1064) on power to impose in pardon conditions 
 extending beyond term of sentence; (16 L.R.A. (N.S.) 305) as to whether time 
 prisoner is out on parole or conditional pardon should be deducted from term; 
 <111 Am. St. Rep. Ill, 112, 115) on conditional pardon? 
 L.R.A. Au. Vol. I. 75. 
 
6 L.R.A. 743] L. R. A. CASKS AS AUTHORITIES. 1188 
 
 Forfeiture of parole or pardon for breach of condition. 
 
 Cited in Fuller v. State. 122 Ala. 30, 45 L. R. A. 503.. 82 Am. St. Rep. 17, 20 
 So. 146, holding statute providing for conditional parole, and for taking priM>m-r 
 again into custody upon breach of condition, constitutional; Re Ridley, 3 Okhi. 
 Crim. Rep. 362, 2G L.R.A.(X.S.) 115, 106 Pac. 540: State v. Home, 52 Fla. 139, 
 
 7 L.R.A. (N.S.) 725, 42 So. 388, holding pardon becomes void, by breach of con- 
 dition and prisoner may be arrested and compelled to undergo so much of original 
 sentence as he had not suffered at time of release. 
 
 6 L, R, A. 745. DE HAVEN v. SHERMAN, 131 111. 115, 22 N. E. 711, 714. 
 "When annuity charge upon corpus of estate. 
 
 Cited in Einbecker v. Einbecker, 162 111. 273. 44 X. E. 426. holding that prin- 
 cipal cannot be used to make up deficiency where testator intended annuity to 
 be paid out of income of fund: Hopkins v. Remy, 64 X. J. Eq. 14. 53 Atl. 676, 
 holding that no resort may be had to land to pay annuity devised out of rents 
 and profits; Merriam v. Merriam. 80 Minn. 272. 83 X*. W. 162 (dissenting 
 opinion), majority holding that income should be made up from corpus of estate 
 where securities selected by executors to pay designated income to widow prove 
 insufficient; Merrill v. American Baptist Missionary Union. 73 X. H. 418. 3 
 L.R.A.(X.S.) 1147, 111 Am. St. Rep. 632, 62 Atl. 647, 6 A. E. Ann. Cas. 646. 
 holding will bequeathing use of realty to children and their heirs forever, and 
 providing that on cessation of heirs property to go to certain devisees and re- 
 quiring children to pay certain sum annually to such devisees, made annuity 
 charge on income. 
 Construction of trill. 
 
 Cited in French v. Calkins, 252 111. 255, 96 X. E. 877, to the point that an 
 annuity is not an estate in property; Routt v. Newman, 253 111. 188, 97 X. E. 
 208, holding that rent charge or annuity is not created where title to land is 
 devised to trustees for life of sons, with contingent remainder in fee to those 
 who would then be heirs of body of testatrix, and where trustees are directed 
 to manage estate and after expenses to pay income to sons equally: Col ins v. 
 Crawford, 214 Mo. 180, 127 Am. St. Rep. 661, 112 S. W. 538, on construction of 
 trust so as to carry out its purposes. 
 
 6 L. R. A. 749, GORDON v. STATE, 46 Ohio St. 607, 23 N. E. 63. 
 Constitutionality of local linvs. 
 
 Cited in Mathis v. Jones, 84 Ga. 807, 11 S. E. 1018. holding local option law 
 as to fences a general law of uniform operation; Adams v. Beloit, 105 Wis. 374, 
 47 L. R. A. 446, 81 X*. W. 869. holding option to adopt provisions of general 
 statute not in conflict with constitutional requirement as to uniformity of 
 operation : Walbridge v. Jones, 22 Ohio C. C. 701, 11 Ohio C. D. 508. on meaning 
 of "shall have a uniform operation throughout the state" as used in the consti- 
 tution. 
 An to intoxicating' liquors. 
 
 Followed in State v. Rouch, 47 Ohio, St. 482, 25 N. E. 59. holding Dow law not 
 unconstitutional for want of uniform operation; Ex parte Handler, 176 Mo. 389, 
 75 S. W. 920, holding local option liquor law, prescribing different penalties for 
 unlawful traffic in counties adopting it than imposed in others, constitutional. 
 
 Cited in Stevens v. State. 61 Ohio St. 606, 56 X T . E. 478, holding that the pro- 
 hibition of the sale of intoxicating liquors need not be absolute to be a police 
 regulation within the Wilson act : McPherson v. State, 174 Ind. 73, 31 L.R.A. 
 
1187 L. R. A. CASES AS AUTHORITIES. [6 LJI.A. 749 
 
 (N.S. 194, 90 X. E. 610, holding that county local option law is not unconsti- 
 tutional in giving voters part in making the law; Gordon v. Corning, 174 Ind. 342, 
 92 X. E. 59, holding that county local option law is not local law but operative 
 generally throughout state and is constitutional; In re Ammer (Petition of^ 
 3 Ohio X. P. X. S. 342. 50 Ohio L. J. 356: Thalheimer v. Maricopa County, II 
 Ariz. 435. 94 Pac. 1129, upholding constitutionality of local option law; Re 
 iHSric-u, 29 Mont. 540. 75 Pac. 196, 1 A. & E. Ann. Cas. 373, holding local 
 option liquor law, providing for petition to county commissioners and the deci- 
 sion by election as to sale of liquor, constitutional; Columbus v. Jeffrey. 2 Ohio- 
 X. P. X. S. 89, 14 Ohio S. & C. P. Dec. 613: Ely v. Willard, 2 Ohio X.* P. X. S. 
 574, 15 Ohio S. & C. P. Dec. 321. holding valid local option law giving 40 per 
 cent of electors power to prescribe a district in which question of sale of in- 
 toxicants shall be submitted to vote; Lloyd v. Dollison, 3 Ohio C. C. X. S. 331, 
 13-23 Ohio C. C. 574: Wells v. State, 1 Ohio X. P. X. S. 320, 14 Ohio S. & C. P. 
 Dec. 206, holding constitutional municipal local option law; Scheu v. State, 83 
 O. S. 160, 93 N. E. 969; Gassman v. Kerns, 7 Ohio X. P. X. S. 633, 19 Ohio S, 
 & C. P. Dec. 323. holding constitutional county local option law. 
 
 Cited in notes (10 L.R.A. 82) on right of state to prohibit manufacture and 
 sale of intoxicating liquors: (8 L.R.A. (X.S.i 363) on discrimination as between 
 different localities, in respect to right to sell liquor; (15 L.R.A.(X.S.) 914, 945) 
 on constitutional right to prohibit sale of intoxicants; (114 Am. St. Rep. 325) 
 on constitutionality of local option laws. 
 
 Distinguished in Brown v. Van Wert (Incorporated Village) 4 Ohio C. C. 422, 
 2 Ohio C. D. 629, holding invalid the Dow local option law for failure to properly 
 prescribe return of assessment where right to sell is prohibited by ordinance. 
 Delegation of power. 
 
 Followed in State v. Rouch, 47 Ohio St. 482, 25 N. E. 59, on the point that 
 Dow law not unconstitutional as delegation of legislative power to people. 
 
 Cited in State ex rel. Witter v. Forkner, 94 Iowa, 11, 28 L. R. A. 210, 62 X. 
 W. 772, holding it not unconstitutional delegation of legislative power to allow 
 people to determine by vote limits of operation of prohibitory liquor law; State 
 v. Messenger, 63 Ohio St. 402, 59 X. E. 105, holding authority granted commis- 
 sioners to determine increased weight that may be drawn in vehicles having tires 
 less 'I'.an 3 inches in width not unconstitutional as delegation of legislative 
 power; McClanahan v. Breeding, 172 Jnd. 464. 88 X. E. 695, holding law prohibit- 
 ing granting of liquor license by county commissioners after filing of remonstrance 
 by majority of qualified voters of township, not directed at public policy but is 
 a local police power, and valid: Scott v. Hamilton (City), 4 Ohio X. P. X. S. 11, 
 16 Ohio S. & C. P. Dec. 667, holding not void, as delegation of legislative power,, 
 power, of board of public service to select one of three materials specified br 
 ordinance to be used for paving street; Baltimore & O. R. Co. v. Railroad Com- 
 mission, 10 Ohio X. P. X. S. 671, 21 Ohio S. & C. P. Dec. 59, holding that railroad 
 commission act is not delegation of legislative power. 
 
 Cited in note (1 L.R.A. (X.S.) 483) on local option law as unconstitutional dele- 
 gation of power. 
 
 Distinguished in State ex rel. Allison v. Carver, 66 Ohio St. 565. 04 X. E. 573;. 
 holding act to limit compensation of county officers unconstitutional where it is 
 to take effect when and if approved by popular vote. 
 1 in pn-i hi! it > of execution of statute. 
 
 Followed in State v. Rouch, 47 Ohio St. 482, 25 X. E. 59, on point that Dow 
 law not unconstitutional because impossible of execution. 
 
 Cited in Beverstock v. Board of Education, 75 Ohio St. 150, 78 X. E. 1007^ 
 holding statute will not be rendered void if it is possible to execute it. 
 
6 L.R.A. 749] L. R. A. CASES AS AUTHORITIES. 1188 
 
 Duplicity. 
 
 Cited in Nickel v. State, 6 Ohio C. C. 603, holding count charging sale of 
 liquors to diverse persons unknown, not bad for duplicity; State v. Batson, 108 
 La. 481, 32 So. 478, holding that single criminal act consummated at one time 
 may be charged as one offense, although it may operate upon more than one 
 person; State ex rel. Atty. Gen. v. Mulhern, 74 Ohio St. 369, 78 X. E. 507, 6 
 A. & E. Ann. Gas. 856, construing law so as to extend term of office of county 
 commissioners where provision therefore was in conflict with another provision 
 for commencement of office, where such extension conforms with policy and intent 
 of legislature. 
 Sufficiency of indictment. 
 
 Cited in State v. Ice Delivery Co. 5 Ohio X. P. N. S. 99, 17 Ohio S. & C. P. 
 Dec. 523, holding good against demurrer for duplicity, indictment charging in 
 one count several offenses of the same character and part of the same transaction ; 
 Stewart v. State, 2 Ohio C. C. N. S. 292, 25 Ohio C. C. 439, on necessity of 
 setting out names of parties to whom liquors were sold in indictment for viola- 
 tion of local option law. 
 
 Sufficiency of affidavit for prosecution for unlawful sale of intoxicating' 
 liquor. 
 
 Cited in State v. Ridgway, 73 Ohio St. 41, 76 X. E. 95, 4 A. & E. Ann. Cas. 
 94, holding affidavit on which prosecution for unlawfully selling intoxicating 
 liquor must state name of purchaser of such liquor or that name is to affiant, 
 unknown. 
 
 6 L. R. A. 756, SPRING VALLEY WATERWORKS v. SAX FRAXCISCO, 82 
 
 Cal. 286, 16 Am. St. Rep. 116, 22 Pac. 910-1046. 
 Public corporations; authority to fix rates. 
 
 Cited in Jacobs v. San Francisco, 100 Cal. 137, 34 Pac. 630, holding under 
 statute making it official duty of board of supervisors of city annually to fix 
 rates for water, power to fix rates rests with board of supervisors alone; San 
 Diego Water Co. v. San Diego, 118 Cal. 566, 38 L. R. A. 402, 62 Am. St. Rep. 
 261, 50 Pac. 633, holding constitutional provision for fixing water rates without 
 notice not deprivation of property without due process of law; Spring Valley 
 Waterworks v. San Francisco, 124 Fed. 587, holding ordinance fixing water rates 
 so low that company's net earnings would be much less than earnings from simi- 
 lar investments, unconstitutional; San Diego Land & Town Co. v. Jasper, 189 U. 
 S. 440, 47 L. ed. 894, 23 Sup. Ct. Rep. 571, holding default of original petitioners 
 for establishment of water rates, made parties to bill to have them declared void; 
 not entitle plaintiff to relief sought; San Diego Water Co. v. San Diego Flume 
 Co. 108 Cal. 560, 29 L. R. A. 843, 41 Pac. 495, holding contract making water 
 company sole distributing agent for flume company not against public policy; 
 Leadville Water Co. v. Leadville, 22 Colo. 305, 45 Pac. 362, holding city council 
 lias power to fix Avater rates; Home Teleph. & Teleg. Co. v. Los Angeles, 355 
 Fed. 581, holding city which has power to regulate telephones and fix rates 
 therefor may pass ordinance to that end without notice to telephone company. 
 
 Cited in notes (33 L. R. A. 182) on legislative power to fix tolls, rates, or" 
 prices; (61 L.R.A. 101, 104. 105) on control of rates of municipal water supply; 
 (8 L.R.A. (N.S.) 530) on power of judiciary to fix rates of public-service cor- 
 porations; (62 Am. St. Rep. 295, 299) on authority to fix rates. 
 Arbitrary fixing: of rates. 
 
 Cited in San Diego Land & Town Co. v. National City. 174 U. S. 749, 43 L. 
 ed. 1158, 19 Sup. Ct. Rep. 804, holding when statute making it duty of town 
 supervisors annually to fix water rates, construed by state court as not authoriz- 
 
1189 L. R. A. CASES AS AUTHORITIES. [ L.R.A. 756 
 
 ing arbitrary fixing of rates, construction binding on Federal courts, although 
 notice to water company not expressly provided; Woodruff v. East Orange, 71 
 X. J. Eq. 432, 64 Atl. 460, upholding, as reasonable, rate fixed by municipal 
 authorities by meter measurement against boarding house keepers, and not unjust 
 discrimination in favor of ordinary residents assessed at fixed rate, both rates 
 being about equal per capita; Santa Ana Water Co. v. San Buenaventura, 65 
 Fed. 329, on power of trustees of town to arbitrarily fix rates. 
 Power of courts to review reasonableness of rates. 
 
 Cited in Jacobs v. San Francisco, 100 C'al. 130, 34 Pac. 630, holding that fixing: 
 of water rates by board of supervisors is judicial act, and judgment cannot be 
 controlled by mandamus; Union Transp. Co. v. Bassett, 118 Cal. 610, 50 Pac. 
 T.~>4, holding that equity cannot interfere with discretionary action of board of 
 harbor commissioners in changing place of landing of vessel; San Diego Land 
 & Town Co. v. National City, 74 Fed. 83, holding court has power to inquire 
 into reasonableness of rates fixed by municipalities for use of appropriated* 
 water; Philadelphia & R. R. Co. v. Interstate Commerce Commission, 174 Fed. 
 689, holding court cannot suspend or vacate order of interstate commerce com- 
 mission prescribing rates under act of Congress, except that commission m 
 making order exceeded its power or without regard to law or in violation of 
 legal constitutional or natural right; Contra Costa Water Co. v. Oakland, 159 
 Cal. 347, 113 Pac. 668, holding that courts have no power to revise water rates 
 fixed by rate-making body unless its action is confiscatory. 
 
 Cited in notes (22 Am. St. Rep. 797) on power of court to interfere with 
 action of supervisors in fixing water rates; (62 Am. St. Rep. 301) on power 
 of courts to review reasonableness of rates. 
 Over official action generally. 
 
 Cited in Goldtree v. San Diego, 8 Cal. App. 510, 97 Pac. 216, holding court 
 has power to render judgment against municipality for mechanic's lien for labor 
 performed on property of city; Inglin v. Hoppin, 156 Cal. 489, 105 Pac. 582, 
 holding mandamus will lie to compel board of supervisors to establish reclama- 
 tion district; Avery v. Job, 25 Or. 525, 36 Pac. 293, holding equity will not in 
 absence of fraud, review discretion of city council in erection or purchase of 
 waterworks. 
 
 Disapproved in part in Matthews v. North Carolina, 106 Fed. 10, holding state 
 commission order fixing amount of fertilizers constituting car load at ten tons, 
 not subject to judicial interference, unless clearly unreasonable. 
 Requiring furnishing; of water meters. 
 
 Cited in note (61 L. R. A. 112, 114) on rights and duties of consumer ot 
 water. 
 
 Distinguished in State ex rel. Hallauer v. Gosnell, 116 Wis. 615, 61 L. R. A. 
 45, 93 X. W. 542, sustaining provision in ordinance regulating water rates re- 
 quiring consumers in certain cases to furnish meters; Cooper v. Goodland, 80" 
 Kan. 124, 23 L.R.A. (X.S.) 413, 102 Pac. 244, upholding ordinance requiring 
 user to own and maintain own meter, where waterworks are owned by city; 
 Shaw Stocking Co. v. Lowell, 199 Mass. 120, 18 L.R.A. (X.S.) 747, 85 X. E. 90. 
 15 A. & E. Ann. Cas. 377, holding municipal corporation which is bound to 
 supply water at reasonable rates to all takers, and which affords reasonable 
 means for extinguishing fires may require property owner who desires to connect 
 private fire system with water supply to put in meter at own expense. 
 Pleading; party must allege facts essential to recovery. 
 
 Cited in Allen v. Home Ins. Co. 133 Cal. 30, 65 Pac. 138, holding that in 
 action upon policy insuring building "while occupied as dwelling house", plain- 
 
6 L.Px.A. 756] L. R. A. CASES AS AUTHORITIES. 1190 
 
 tiff must allege that building was so occupied; Miles v. Woodward, 115 Cal. 
 314, 46 Pac. 1076, holding complaint in action to recover penalty of directors 
 of mining corporation for failure to post weekly reports of superintendent, need 
 not allege neglect wilful and intentional, since directors prima facie liable for 
 mere neglect; Winchester v. Howard, 136 Cal. 452, 89 Am. St. Rep. 153, 64 
 Pac. 692, holding allegation that directors of corporation made unlawful pay- 
 ment and misappropriation and pretended purchase, did not dispense with neces- 
 sity of facts showing misappropriation; Ex parte Goodspeed, 2 Cof. Prob. Dec. 
 Anno. 149. holding facts constituting fraud must be alleged. 
 Repealed statute, how revived. 
 
 Cited in Lyles v. McCown, 82 S. C. 131, 63 S. E. 355, 17 A. & E. Ann. Gas. 
 436, holding repealed statute is re-enacted where it is referred to and adopted 
 in new statute. 
 Proper parties In salt affecting fixing of rates. 
 
 Cited in San Francisco Gas & Electric Co. v. San Francisco, 164 Fed. 888, 
 holding in suit by gas company against city to enjoin enforcement of ordinance 
 fixing rate, temporary restraining order may properly include all consumers, 
 although not parties to record they being real parties in interest, the city being 
 a consumer, and the consumers being so numerous to name all as parties; San 
 Diego, Land & Town Co. v. Jasper, 189 U. S. 439, 47 L. ed. 893. 23 Sup. Ct. 
 Rep. 571, holding court can consider merits of controversy to have water rates 
 fixed which is defended by board of supervisors although those who set pro- 
 ceeding in motion have defaulted. 
 Powers of board of supervisors. 
 
 Cited in Glide v. Superior Ct. 147 Cal. 30, 81 Pac. 225, on power of board 
 of county supervisors to destroy rights of land owners on reclamation project. 
 
 6 L. R. A. 763, PINE CITY v. MUNCH, 42 Minn. 342, 44 N. W. 197. 
 What are nuisances. 
 
 Cited in Houlton v. Titcomb, 102 Me. 285, 10 L.R.A.(N.S.) 583, 120 Am. St. 
 Rep. 492, 66 Atl. 733, holding that a thing is not a nuisance simply because a 
 city ordinance declares it such, but the state may declare what will be a nui- 
 sance in law. 
 
 Cited in notes (20 Am. St. Rep. 136) on power to declare what are nuisances; 
 (107 Am. St. Rep. 200,224) on what are public nuisances. 
 Abatement of nuisance. 
 
 Cited in Re Debs, 158 U.'S. 587, 39 L. ed. 1103, 15 Sup. Ct. Rep. 900, holding 
 obstruction of public highway subject to abatement in equity at instance of gov- 
 ernment; Hutchinson Twp. v. Filk, 44 Minn. 537, 47 N. W. 255, holding that city 
 may maintain civil action to abate nuisance constituting obstruction to public 
 highway; Huron v. Bank of Volga, 8 S. D. 451, 59 Am. St. Rep. 769, 66 X. W. 
 815, and Red Wing v. Guptil, 72 Minn. 261, 41 L. R. A. 324, 71 Am. St. Rep. 
 485, 75 N. W. 234, holding that municipal corporation authorized by charter to 
 abate or to compel abatement of public nuisances, may maintain action in equity 
 for that purpose; Buffalo v. Harling, 50 Minn. 556, 52 N. W. 931, holding that 
 city may maintain action to enjoin erection of building for private use on public 
 ground; Llano v. Llano County, 5 Tex. Civ. App. 136, 23 S. W. 1008, holding 
 action to abate county jail and cesspool as nuisances maintainable by city; Phila- 
 delphia v. Lyster, 3 Pa. Super. Ct. 480, holding ordinance prohibiting collection 
 of garbage without permit not enforceable by injunction, unless act per se nui- 
 sance; Khmer v. Munch. 107 Minn. 379, 120 N. W. 374, on right of village 
 .to prevent abatement of dam. 
 
1191 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 765 
 
 Cited in footnote to Pfingst v. Senn, 21 L. R. A. 569, which denies right to 
 njoin as nuisance prospective use of premises as beer garden. 
 
 Cited in notes (51 L. R. A. 660, 661) on right of municipality to maintain suit 
 to enjoin public nuisance; (42 L. R. A. 823) on injunctions by municipalities 
 against nuisances upon highways and streets; (41 L. R. A. 323) on injunctions 
 by municipal corporations against nuisances affecting public morals, peace and 
 good order, and health and safety; (9 L. R. A. 716) on abatement of nuisance 
 by action; (8 L. R. A. 831) on abatement of public nuisances; (20 L. R. A. 165) 
 on power of equity to grant mandatory injunctions as to nuisances; (38 L. R. 
 A. 327 I on municipal power over nuisances affecting safety, health, and personal 
 -comfort; (36 L. R. A. 593, 597, 599, 607) on power of municipal corporations to 
 define, prevent, and abate nuisances; (59 L. R. A. 850) on right to dam back 
 water of stream as against public; (47 Am. St. Rep. 545) on power of municipal 
 authorities and local board of health to abate nuisances. 
 Justification of nuisance. 
 
 Cited in Rand Lumber Co. v. Burlington, 122 Iowa, 209, 97 N. W. 1096, holding 
 that legislative authority to construct sewer will not justify nuisance; Georgia 
 R. & Bkg. Co. v. Maddox, 116 Ga. 82, 42 S. E. 315, holding unnecessary switching 
 in railroad terminal yard on Sunday, a nuisance; Winona v. Botzet, 23 L.R.A. 
 (X.S) 215, 94 C. C. A. 563, 169 Fed. 332, holding legislative authority no defense 
 to nuisance, when nuisance results from manner of doing authorized act ; Mc- 
 Kim v. Philadelphia, 217 Pa. 248, 19 L.R.A. (X.S.) 515, 66 Atl. 340, holding 
 that the legislative authority that will shelter an actual nuisance in a street 
 must be express, or a clear and unquestionable implication from the powers 
 conferred, certain and unambiguous. 
 
 Cited in note (9 L. R. A. 714) on justification of nuisance under legislative 
 authority. 
 
 6 L. R. A. 765, ALBERTI v. NEW YORK, L. E. & W. R. CO. 118 N. Y. 77, 23 
 
 N. E. 35. 
 Duty to use ordinary care to prevent aggravation of Injury. 
 
 Cited in Caven v. Troy, 15 App. Div. 167, 44 N. Y. Supp. 244, holding injured 
 person must use ordinary care to effect cure but that mistake of his physician 
 in treatment will not shield wrongdoer. 
 "Waiver of statutory privilege agrainst testimony. 
 
 Cited in Pence v. Waugh, 135 Ind. 154, 34 X. E. 860; Kern v. Kern, 154 Ind. 
 ::.->. .->."> X. E. 1004; McMaster v. Scriven, 85 Wis. 168, 39 Am. St. Rep. 828, 55 
 X. W. 149, holding that testator who requests his attorney to witness his will 
 thereby waives privilege of statute; Re Downing, 118 Wis. 591, 95 N. W. 876, 
 holding that attorney drafting will, may, at its probate, testify as to directions 
 given by testator; Re Mullin, 110 Cal. 254, 42 Pac. 645, holding that testator 
 waives statutory privilege by requesting his physician to witness will, and latter 
 may testify as to testator's mental capacity; Morris v. Xew York, O. & W. R. Co. 
 148 N. Y. 92, 51 Am. St. Rep. 675, 42 X. E. 410, holding that patient waives statu- 
 tory privilege as to information gained by two physicians at same examination 
 by calling one of them as a witness; Foley v. Royal Arcanum, 151 N. Y. 204, 
 56 Am. St. Rep. 621, 45 X. E. 456, Affirming 78 Hun, 225, 28 X. Y. Supp. 952, 
 holding that insured may waive statutory privilege as to testimony of physician 
 by stipulation in insurance contract; Corey v. Bolton, 31 Misc. 141, 63 X. Y. 
 Supp. 915, holding that natural guardian of infant may waive protection of stat- 
 ute which forbids physician from disclosing information acquired in professional 
 capacity; Trull v. Modern Woodmen, 12 Idaho, 326, 85 Pac. 1081, 10 A. & E. 
 
6 L.R.A. 765] L. R. A. CASES AS AUTHORITIES. 1192: 
 
 Ann. Cas. 53, holding clause in contract of insurance making testimony of phy- 
 sician competent enforceable: Western Travelers' Acci. Asso. v. Munson, 73 Xeb. 
 866, 1 L.R.A.(N.S.) 1073, 103 X. W. 688, holding secrecy enjoined upon physi- 
 cian by statute may be waived by express stipulation of patient; Clifford v. Den- 
 ver & R. G. R. Co. 188 X. Y. 355, 80 X. E. 1094, on waiver of secn-cy by 
 patient; Marquardt v. Brooklyn Heights R. Co. 126 App. Div. 273, 110 X. Y. 
 Supp. 657, holding privilege waived by calling physician as witness. 
 Opinion of physician. 
 
 Cited in Reynolds v. Xiagara Falls, 81 Hun, 356, 30 X. Y. Supp. 954, holding 
 that physician may express opinion about continuance of known present condition 
 of plaintiff's limb; Penny v. Rochester R. Co. 7 App. Div. 603, 40 X. Y. Supp. 
 172, holding that physician may testify that wound which had broken out after 
 apparently healing may do so again; Saltzman v. Brooklyn City R. Co. 73 Hun, 
 568, 26 N. Y. Supp. 311, holding that physician may testify that in his opinion 
 injury is liable to grow worse; Barr v. Kansas City, 121 Mo. 31, 25 S. W. 502, 
 holding medical testimony that plaintiff's injuries would probably shorten his 
 life, admissible; Quinn v. O'Keeffe, 75 X. Y. S. R. 578, 41 X. Y. Supp. 116, 
 holding testimony that injury is capable of producing certain conditions indicated 
 by plaintiff's symptoms, admissible; Wolf v. Third Ave. R. Co. 67 App. Div. 613, 
 74 N. Y. Supp. 336, holding medical evidence as to propriety of operation neces- 
 sary for plaintiff's relief, competent in negligence action; Cross v. Syracuse, 200 
 N. Y. 397, 94 X. E. 184, 21 Ann. Cas. 324, holding that opinion evidence is 
 properly received as to probable effect of existing condition. 
 
 Distinguished in Clegg v. Metropolitan Street R. Co. 1 App. Div. 211. 37 N. 
 Y. Supp. 130, holding that medical witness may testify as to probable effects of 
 present condition of injured person. 
 Photographs as evidence. 
 
 Cited in Lake Erie & W. R. Co. v. Wilson, 189 111. 96, 59 X. E. 573, holding 
 accurate photographs of scene of accident taken about time of injury, admissible; 
 Warner v. Randolph, 18 App. Div. 464, 79 X. Y. S. R. 1116, 45 X. Y. Supp. 1112, 
 and Dederichs v. Salt Lake City R. Co. 14 Utah, 141, 35 L. R. A. 807, 46 Pac. 
 656, holding accurate photograph of place of accident admissible in action for 
 personal injuries; Cooper v. St. Paul City R. Co. 54 Minn. 384, 56 X. W. 42. 
 holding photograph accurately representing portions of plaintiff's body, adini~- 
 sible; Baxter v. Chicago & N. W 7 . R. Co. 104 Wis. 325, 80 N. W. 644, holding, 
 -photographs of plaintiff's injured leg admissible in action for personal injuries; 
 Howard v. Illinois Trust & Sav. Bank, 189 111. 577, 59 X'. E. 1106, holding en- 
 larged photographs of original deed in evidence admissible where alteration is 
 claimed; People v. Webster, 139 X'. Y. 83, 34 X. E. 730, holding photograph of 
 deceased admissible on murder trial to show his physical characteristics where 
 self-defense is set up; Xies v. Broadhead, 75 Hun, 256, 27 X*. Y. Supp. 52, holding 
 verification of picture by photographer not essential to its admissibility; Cun- 
 ningham v. Fair Haven & W. R. Co. 72 Conn. 249, 43 Atl. 1047, holding that 
 accuracy of photograph of physical object must be proved before it can be re- 
 ceived; McKarren v. Boston & X T . Street R. Co. 194 Mass. 179, 80 X T . E. 477 r 
 10 A. & E. Ann. Cas. 961, holding photographs of portion of body of injured per- 
 son taken in presence of physician testifying, and under his direction, must 
 be considered as forming part of his evidence, though photographer not nailed: 
 Davis v. Adrian, 147 Mich. 305, 110 X. W. 1084, holding photograph of sore 
 claimed to have formed as result of injury, evidence competent to be presented 
 to jury; Curtis v. Xew York, X. H. & H. R. Co. 32 R. I. 547, 80 Atl. 127. 
 holding that photographs of places and things for purpose of aiding jury in 
 applying facts proved are admissible; Smith v. Central Vermont R. Co. 80 Vt. 
 
1193 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 770 
 
 217, 67 Atl. 535, holding photographs of ground burned over, combustible mate- 
 rial on right of way of railroad, and remains of such material admissible, though 
 photographer not called. 
 
 Cited in notes (35 L. R. A. 803) proof of correctness of photograph offered as 
 evidence; (35 L.R.A. 808) photograph of part of body as evidence; (75 Am. St. 
 Rep. 470, 473) on photograph as evidence. 
 Exhibition of injured limb. 
 
 Cited in Arkansas River Packet Co. v. Hobbs, 105 Tenn. 40, 58 S. W. 278, 
 holding that plaintiff may voluntarily exhibit injured limb to jury. 
 Compensation for personal injury. 
 
 Cited in Louisville & X. R. Co. v. Melton, 127 Ky. 291, 105 S. W. 366, holding 
 verdict of $22,000 damages for injuries sustained by young and healthy man, 
 who was made complete wreck, not excessive; Purcell v. Duncan Co. 107 App. 
 Div. 503, 95 N. Y. Supp. 278, holding elements which combine to determine ques- 
 tion as to what is adequate compensation for injuries are same whether person 
 "be married or single, rich or poor; Madigan v. Schaghticoke, 143 App. Div. 888, 
 ]2S X. Y. Supp. 800, holding that in action for tort where only compensatory 
 damages are recoverable, evidence as to wealth of defendant is inadmissible. 
 
 Cited in notes (33 Am. St. Rep. 551) on measure of damages as affected by 
 pecuniary circumstances of parties; (85 Am. St. Rep. 837) on evidence of 
 domestic relations of persons seeking recovery for personal injuries. 
 
 6 L. R. A. 770, FRANKLIN v. BROWN, 118 N. Y. 110, 27 N. Y. S. R. 955, 16 
 
 Am. St. Rep. 744, 23 N. E. 126. 
 Landlord and tenant; implied covenants. 
 
 Cited in Daly v. Wise, 132 N. Y. 310, 16 L. R. A. 238, 30 N. E. 837, holding 
 covenant against inherent defects not implied in lease of unfurnished dwelling 
 for definite term; Edwards v. McLean, 122 X. Y. 307, 25 N. E. 483, Affirming 
 23 Jones & S. 131, holding infectious disease upon premises after execution of 
 lease, but before commencement of term, not relieve tenant from liability for rent; 
 Rotter v. Goerlitz, 16 Daly, 485, 12 N. Y. Supp. 210, raising question as to doc- 
 trine that lease of furnished house or apartment implies fitness for occupancy: 
 Davis v. George, 67 N. H. 397, 39 Atl. 979, holding covenant that furnished 
 dwelling is fit for occupancy, not implied in lease for term of years; Ingalls v. 
 Hobbs, 156 Mass. 351, 16 L. R. A. 52, footnote p. 51, 32 Am. St. Rep. 460, 31 X. 
 E. 286, holding lease of furnished dwelling for limited term implies fitness for 
 immediate occupation; Meserole v. Hoyt, 161 X. Y. 62, 55 N. E. 274, Affirming 
 34 App. Div. 33, 55 X. Y. Supp. 1072, holding statute relieving lessee from 
 liability for rent upon premises becoming unfit for occupancy without his fault, 
 not applicable when defect existed at time lease made, in absence of misrepre- 
 sentation of lessor; Schwalbach v. Shinkle, W. & K. Co. 97 Fed. 485, holding 
 lessor not liable for personal injury by reason of unsafe condition of premises 
 for purpose for which leased if defect unknown, and not apparent on reasonable 
 inspection; Prahar v. Tousey, 93 App. Div. 509, 87 X. Y. Supp. 845, holding that 
 landlord does not impliedly warrant fitness of leased premises for proposed use; 
 Cnstarrnotte v. Xicchia, 76 App. Div. 372, 78 X. Y. Supp. 498, holding landlord's 
 covenant to repair not implied from striking out of lease clause requiring tenant 
 to do so; Smith v. Donnelly, 93 App. Div. 573, 87 N. Y. Supp. 893, denying land- 
 lord's absolute duty to disclose to tenant that upper window sash would fall out 
 if pulled entirely down: Tallman v. Murphy, 120 X. Y. 354, 24 X. E. 716 (dis- 
 senting opinion) majority holding that smoke and odors of coal gas from flues 
 of adjoining tenants, and explosions, rendering premises untenantable, consti- 
 
6 L.R.A. 770] L. R. A. CASES AS AUTHORITIES. 1104 
 
 tutes eviction; Rubens v. Hill, 115 111. App. 572, disapproving doctrine that there 
 is implied covenant or warranty that premises are fit for occupancy in leas* 1 <v 
 furnished house: Walker v. Newman, 146 111. App. 456, holding that, in {i.bseccs 
 of covenant against infectious diseases, fat-fc that after lease of apartment and 
 possession by lessee, persons in another portion of building are stricken with 
 small-pox, is no defense to action for rent; Schemer Press v. Perlman. K30 App. 
 Div. 578, 115 X. Y. Supp. 40. holding recital in lease "to be used and occupied 
 for printing business" not construed to contain implied warranty loft was suitable 
 for establishment of twelve printing presses running at high rate of speed, but 
 tenant obliged to rely on express covenant as to carrying capacity of floor; 
 Flannery v. Simons, 47 Misc. 125, 93 X. Y. Supp. 544, holding tenant vacating 
 premises because of offensive odors from fixed ice chest therein liable for rent 
 in absence of express covenant that premises were habitable, and fit for occu- 
 pancy; Faron v. Jones, 49 Misc. 48, 96 N. Y. Supp. 316. holding tenant sued 
 for rent could not counterclaim for cost of replacing engine which broke down, 
 there being no express covenant by landlord to repair; Brick v. Favilla, 51 Misc. 
 551, 101 N. Y. Supp. 970, holding landlord not bound to make changes or repairs 
 in his building, in absence of agreement. 
 
 Cited in footnotes to Angevine v. Knox-Goodrich, 18 L. R. A. 264, which denies 
 implied warranty that house leased for dwelling habitable. 
 
 Cited in notes (33 L.R.A. 456) on implied covenant in lease as to fitness of 
 property for purpose intended; (9 Eng. Rul. Cas. 458, 459) on implied obligation 
 of landlord to repair, and implied warranty of fitness of premises for purposes 
 for which they are let. 
 
 Distinguished in Ash v. Meeks, 134 App. Div. 156, 118 X. Y. Supp. 821, 
 holding rule of absence of either implied covenant on part of lessor to repair, 
 or of implied representation that premises are tenantable, inapplicable in case 
 of fraudulent misrepresentation or concealment. 
 Doctrine of caveat emptor applicable to leaseholds. 
 
 Cited in Meserole v. Sinn, 34 App. Div. 35, 53 X. Y. Supp. 1072; Watson v. 
 Almirall, 61 App. Div. 430, 70 X. Y. Supp. 662; Rotter v. Goerlitz, 16 Daly. 
 485, 12 X. Y. Supp. 210, holding that maxim caveat emptor applies to leasehold 
 of dwelling; Zerega v. Will, 34 App. Div. 490, 54 X. Y. Supp. 361, holding that 
 where tenant has opportunity to examine premises he assumes risk of their con- 
 dition; Sherman v. Ludin, 79 App. Div. 38, 79 X. Y. Supp. 1066, holding that 
 tenant assumes risk of condition of premises, in absence of lessor's express agree- 
 ment; Stein v. Rice, 23 Misc. 351, 51 X. Y. Supp. 320, holding that lessee of dwell- 
 ing at seashore resort assumes risk of sufficiency of water supply in absence of ex- 
 press covenant by lessor; Barrett v. Lake Ontario Beach Improv. Co. 68 App. 
 Div. 618, 74 X. Y. Supp. 301, holding that person using toboggan slide assumes 
 risk of defective construction apparent to senses; Charlie's Transfer Co. v. Malone, 
 159 Ala. 333, 48 So. 705, holding complaint for negligence of landlord in not 
 keeping water pipes in sound condition demurrable for failure to show covenant 
 to repair by landlord or agreement in respect to condition of building; Steefel v. 
 Rothschild, 179 X. Y. 277. 72 X. E. 112, 1 A. & E. Ann. Cas. 676, holding landlord 
 liable to tenant for loss to stock and fixtures and by enforced removal and for 
 rent paid in advance upon lease of building which landlord learned was unsafe 
 after execution of lease, but before demise took effect, where defects were con- 
 cealed; Smith v. Donnelly, 45 Misc. 451, 92 X. Y. Supp. 43, holding landlord 
 not obliged to examine premises for hidden dangerous defect, but is liable for 
 personal injury only by reason of failure to disclose defect of which he has 
 actual knowledge at time of making lease; Jacobs v. Morand, 59 Misc. 201. 1]0 
 X. Y. Supp. 208, holding lessee runs risk of presence of vermin on premises in 
 
1195 ' L. R. A. CASES AS AUTHORITIES. [6 L.R.A 775 
 
 absence of express covenant by lessor to keep premises free from vermin, there 
 being no fraud, deceit or wrongdoing on lessor's part; Richmond v. Lee, 123 App. 
 Div. 281, 107 X. Y. Supp. 1072, holding tenant could not recover from landlord 
 cost of making new sewer connection after one existing when premises were 
 leased had been destroyed by owners of adjacent lots across which it ran; Floyd- 
 Jones v. Schaan, ]29 App. Div. 84, 113 X. Y. Supp. 472, holding tenant not 
 justified in vacating and refusing to pay rent on account of noise and vibration 
 caused by operation of electric light and power plant on adjoining premises. 
 
 Cited in notes (34 L. R. A. 824) on liability of landlord for injury to tenant 
 from defect in premises; (46 L. R. A. 83) on liability of owner of premises of 
 which he is not in possession for injuries from defects; (36 L.R.A.( X.S.) 909) 
 on duty of landlord to keep plumbing usable; (38 Am. St. Rep. 477, 479) on 
 what justifies tenant in abandoning leased premises; (66 Am. St. Rep. 785) on. 
 liability of landlord letting premises in defective condition. 
 Agreements as to teimntabilfty. 
 
 Cited in Hamilton v. Emerson, 31 Misc. 258, 64 N. Y. Supp. 48, holding evidence 
 of contemporaneous verbal agreement as to tenantability inadmissible where 
 written lease disclaims lessor's responsibility for condition or defects. 
 
 6 L. R. A. 773, Re BALLOT ACT, 16 R. I. 766, 19 Atl. 656. 
 I : I <! t i mi - : form of printed ballots. 
 
 Cited in footnotes to State ex rel. Mize v. McElroy, 16 L. R. A. 279, which. 
 holds name written on ballot in place of printed name erased cannot be counted; 
 State ex rel. McCarthy v. Moore, 59 L. R. A. 447, which sustains prohibition! 
 against placing on official ballot, name of unsuccessful candidate for party nom- 
 ination at primary election; State ex rel. Phelan v. Walsh, 17 L. R, A. 364, in. 
 which various decisions as to validity of ballots are made. 
 
 Cited in note (10 L. R. A. 151) on form of ballot. 
 
 G L. R. A. 775, WARWICK v. WARWICK, 86 Va. 596, 10 S. E. 843. 
 \\ ill-: sufficiency of execution. 
 
 Cited in Re Seaman, 146 Cal. 463, 106 Am. St. Rep. 53, 80 Pac. 700, 2 A. & 
 E. Ann. Cas. 726, holding statutory requirement that will be signed by testator 
 at end thereof not complied with where testator and witnesses signed under- 
 neath printed matter on part of paper intended to be outside thereof when folded. 
 
 Cited in footnotes to Re Andrews, 48 L.R.A. 662, which holds signature to- 
 will on second page without anything to connect portions contained on third 
 page insufficient: Shaw v. Camp, 36 L. R. A. 112, which holds unsigned, un- 
 attested sheet attached to will made effective by subsequent codicil; Irwin v. 
 Jacques, 69 L.R.A. 422, which holds will signed on last page is not signed at 
 end as required where a dispositive clause extends lengthwise of last page from 
 near bottom to near top in no way connected witli the body of the instrument. 
 
 Cited in note (29 L.R.A. (X.S. ) 04, 65) on name in body of will as signature. 
 Holographic wills. 
 
 Cited in Baker v. Brown. 83 Miss. 797, 36 So. 539, holding that writing of 
 caption "My Will'' by another does not invalidate holographic will; Meads v. 
 Earle, 205 Mass. 557, 29 L.R.A. (X.S.) 67, 91 X. E. 916. holding that holographic 
 will with name written in exordium of instrument by testator with intention 
 of making it her signature, was properly signed; Xoyes v. Gerard, 40 Mont. 201, 
 26 L.R.A. (X.S.) 1145. 105 Pac. 1017. holding instrument entirely written, dated, 
 and signed by hand of testator except following printed matter "Laurel, Mont. 
 , 190 ." invalid as holographic will; Dinning v. Dinning, 102 Va. 469, 
 
6 L.R.A. 775] L. R. A. CASES AS AUTHORITIES. 1190 
 
 46 S. E. 473, holding signature to holographic will in following form sufficient: 
 "I. W D , say this is my last will and testament." 
 
 Cited in footnotes to Re Booth, 12 L. R. A. 452, which holds holographic 
 will containing maker's name at beginning only, insufficiently executed; Neer v. 
 Cowhick, 18 L. R. A. 588, which holds necessity of two witnesses to make holo- 
 graphic wills valid, not dispensed with by statute. 
 
 Cited in notes (104 Am. St. Rep. 26) on holographic wills; (14 L.R.A.(N.S.) 
 968) on necessity of witnesses to holographic will. 
 
 6 L. R. A. 778, NEWCOMB v. BOSTON PROTECTIVE DEPARTMENT, 151 Mass. 
 
 215, 24 N. E. 39. 
 What are public charities. 
 
 Followed in Bates v. Worcester Protective Department, 177 Mass. 134, 58 
 N. E. 274, holding corporation to assist in saving life and property at fire, not a 
 public charity. 
 
 Cited in Minns v. Billings, 183 Mass. 128, 97 Am. St. Rep. 420, 66 N. E. 593, 
 holding trust fund maintained by gifts and bequests, entirely within trustees' 
 control, for purpose of assisting members of certain association, a public charity : 
 Hopkins v. Crossley, 138 Mich. 565, 101 N. W. 822, holding fund mainly derived 
 from members of volunteer fire department, a corporation, which on its dissolu- 
 tion attempted to dispose of fund to charitable uses and failed, did not escheat 
 to state; Bruce v. Central M. E. Church, 147 Mich. 241, 10 L.R.A. (N.S.) 84, 110 
 N. W. 951, 11- A. & E. Ann. Cas. 150, as to whether fire insurance patrol is 
 charitable corporation. 
 
 Cited in note (2 L.R.A. (N.S. ) 558) on what are charitable institutions within 
 rule exempting from liability for negligence. 
 Liability for negllgrence. 
 
 Followed in Bates v. Worcester Protective Department, 177 Mass. 134, 58 N. 
 E. 274, holding corporation to assist in saving property at fire liable for property 
 of which its officers took possession at fire, and negligently permitted destruction. 
 
 Cited in George v. Cypress Hills Cemetery, 32 App. Div. 305. 52 N. Y. Supp. 
 1097 (dissenting opinion), majority holding cemetery association not exempt 
 from liability for negligence as charitable corporation ; Powers v. Massachusetts 
 Homeopathic Hospital, 47 C. C. A. 128, 109 Fed. 300, holding public hospital 
 chartered as charitable corporation not liable for nurse's negligence; Haggertv 
 v. St. Louis, K. & N. W. R. Co. 100 Mo. App. 447, 74 S. W. 456, holding railroad 
 relief department liable for negligence in selecting physician to treat injured 
 member; Coleman v. Fire Ins. Patrol, 122 La. 638, 21 L.R.A. (N.S.) 815, 48 So. 
 130, 16 A. & E. Ann. Cas. 1217, holding fire insurance patrol liable for injury 
 of fireman, in collision between fire truck and patrol wagon, though fire insuranca 
 patrol declared by its charter to be for purpose of saving life and for benefit of all 
 life and property; Kellogg v. Church Charity Foundation, 128 App. Div. 217, 
 112 N. Y. Supp. 566, holding exemption of charitable institutions from rule of 
 respondeat superior does not arise from fact such institutions derive no profit or 
 benefit; Hogan v. Hospital Co. 63 W. Va. 89, 59 S. E. 943, holding hospital con- 
 ducted for private gain liable for damages to its patients through negligence or 
 misconduct of its officers or employees. 
 
 Cited in notes (23 L. R. A. 201) on liability of charitable institution for 
 negligence; (7 L. R. A. 170) on liability of public agencies for negligence of 
 their servants; (139 Am. St. Rep. 898, 907,) on liability of charitable institution 
 for torts of servants and agents. 
 
 Distinguished in Powers v. Massachusetts Homeopathic Hospital. 65 L.R.A. 
 377, 47 C. C. A. 122, 109 Fed. 300, holding one who accepts benefit of public or 
 
3197 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 78S 
 
 private charity enters into relation which exempts benefactor from liability for 
 negligence of his servants in administering the charity. 
 
 6 L. R. A. 780, XISSEN v. CRAMER, 104 N. C. 574, 10 S. E. 676. 
 Slander; privileged publications. 
 
 Cited in Gudger v. Penland, 108 X. C. 599, 23 Am. St. Rep. 73, 13 S. E. 168 r 
 holding that complaint for slander need not negative privilege although word* 
 uttered in judicial proceeding; Gattis v. Kilgo, 128 X. C. 409, 38 S. E. 931, hold- 
 ing slanderous words uttered by college president on trial before trustees when' 
 relevant and pertinent to issue, privileged; Cawfield v. Asheville Street R- Co. Ill 
 N. C. 599, 16 S. E. 703, holding rebuke of opprobrious epithets applied by at- 
 torney to witness, when supported by evidence, within discretion of court; Myers- 
 v. Hodges, 53 Fla. 209, 44 So. 357, holding defamatory words published by parties,, 
 counsel or witnesses in due course of judicial procedure not privileged unless, 
 connected with, or relevant or material to cause in hand or subject of inquiry: 
 Perry v. Perry, 153 X. C. 267, 31 L.R.A.(X.S-) 880, 69 S. E. 130, holding that 
 affidavit in resisting motion in court which states testimony was false is abso- 
 lutely privileged; Baggett v. Grady, 154 X. C. 344, 70 S. E. 618, holding that 
 affidavits filed in response to citation by court and used while considering ques- 
 tion of granting license to practice law are absolutely privileged. 
 
 Cited in footnote to Morasse v. Brochu, 8 L. R. A. 524, which holds actionable 
 statement by priest to congregation that physician excommunicated, and should 
 not be employed in parish. 
 
 Cited in notes (9 L.R.A. 621) on libel and slander in general; (9 Eng. Rul. 
 Cas. 52) on effect of malice of words otherwise privileged. 
 Relation of corporation officer to suit in which corporation In party. 
 
 Cited in Myers v. Hodges, 53 Fla. 216, 44 So. 357, holding president of corpo- 
 ration defendant in chancery suit in which alleged libelous language was used 
 of president not stranger to such suit. 
 
 6 L. R. A. 783. CAMPBELL v. JOXES, 52 Ark. 493, 12 S. W. 1016. 
 Fraudulent conveyance of homestead. 
 
 Cited in Gray v. Patterson, 65 Ark. 378, 67 Am. St. Rep. 937, 46 S. W. 730 r 
 holding that creditors cannot complain that conveyance of homestead is fraudu- 
 lent : Isbell v. Jones, 75 Ark. 592, 88 S. W. 593, holding there is no restraint up- 
 on sale or conveyance of homestead by debtor. 
 
 Distinguished in Gray v. Patterson, 65 Ark. 380, 67 Am. St. Rep. 937, 46 S. W.. 
 730, by Battle. J.. dissenting, as not considering point whether conveyance of 
 homestead in consideration of maintenance for life was fraudulent; McAndrew 
 v. Hollingsworth. 72 Ark. 450, 81 S. W. 610, holding husband cannot devise- 
 homestead to widow exempt from claims of his creditors. 
 Cancelation of deed. 
 
 Cited in \Yatters v. Wagley, 53 Ark. 511, 22 Am. St. Rep. 232, 14 S. W. 774, 
 holding that title cannot be devested or conveyed by cancelation of grantee's deed. 
 
 Cited in note (18 L.R.A. (X.S.) 1168) on effect of destruction or cancelation,. 
 or redelivery to grantor for that purpose, of delivered but unrecorded deed. 
 
 Distinguished in Ames v. Ames, 80 Ark. 11, 117 Am. St. Rep. 68, 96 S. W. 144, 
 holding grantor and his grantee, cannot assert that first deed was accepted and 
 title passed thereby, whei'e grantee tells grantor he did not accept first deed, be- 
 cause not satisfactory and grantor thereupon executed new deed. 
 Exemption of proceeds of exempt property. 
 
 Cited in note (19 L. R. A. 38) on how far proceeds of exempt property retain; 
 exempt character. 
 
C L.R.A. 783] L. R. A. CASES AS AUTHORITIES. 1198 
 
 When -written instrument taUes effect. 
 
 Cited in Findley v. Means, 71 Ark. 290, 73 S. W. 101, holding contract de- 
 livered to obligee to take effect upon certain condition, binding, though con- 
 dition never performed. 
 
 Cited in note (16 L.R.A. (N.S.) 943) on effect of delivery of deed to grantee, 
 subject to extrinsic condition; (130 Am. St. Rep. 923, 927) on escrows. 
 
 Distinguished in Graham v. Remmel, 76 Ark. 143, 88 S. W. 899, 6 A. & E. Ann. 
 Cas. 167, holding parol evidence admissible to show that premium note was 
 delivered to take effect only if policy proved satisfactory. 
 Fraudulent conveyance to relative. 
 
 Cited in Wilks v. Vaughan, 73 Ark. 179, 83 S. W. 913, holding conveyances to 
 near relatives by debtor shortly before judgment obtained against him sufficient to 
 cast burden of proof of good faith upon parties to them. 
 Election bet-ween homestead rights. 
 
 Cited in Grimes v. Luster, 73 Ark. 269, 108 Am. St. Rep. 34, 84 S. W. 223, 
 holding where two homestead rights accrue to minor, selection can be made of 
 one to exclusion of the other. 
 
 6 L. R. A. 7S5, ADAMS FEMALE ACADEMY v. ADAMS, 65 N. H. 225, 18 
 
 Atl. 777, 23 Atl. 430. 
 Doctrine of <> pres. 
 
 Cited in Edgerly v. Barker, 66 X. H. 472, 28 L. R. A. 342, 31 Atl. 900, modi- 
 fying gift to grandchildren on attaining forty years to take effect at twenty ; 
 Crow ex rel. Jones v. Clay County, 196 Mo. 270, 95 S. W. 369, on doctrine of cy 
 pres; Keene v. Eastman, 75 N. H. 193, 72 Atl. 213, holding that absence of 
 provision for forfeiture in trust deed for charity is evidence that donor did 
 not intend that estate should revert while carrying out of its general purpose 
 is practicable; Pembroke Academy v. Epsom School Dist. 75 X. H. 409, 37 
 L.R.A. (X.S.) 659, 75 Atl. 100, to the point that trust fund for educational pur- 
 pose may be applied by court where particular use is impracticable. 
 
 Cited in footnotes to Crerar v. Williams, 21 L. R. A. 454, which holds other 
 mode for taking effect of charity will be provided if mode pointed out in will 
 fails; Kelly v. Xichols, 19 L. R. A. 413, which holds doctrine of cy pres inappli- 
 cable to bequest not made to definite charitable use; Gladding v. St. Matthew's 
 Church, 65 L.R.A. 252, which holds that legacy to a particular church will not 
 foe administered cy pres after termination of its existence in behalf of deaf 
 .mutes for whose benefit the church was. 
 
 Cited in notes (8 L.R.A. (X.S.) 398) on equitable control of discretion vested 
 in trustee; (14 L.R.A. (X.S.) 63, 145, 149) on enforcement of general bequest for 
 charity or religion. 
 \Vliai are charitable uses. 
 
 .Cited in note (63 Am. St. Rep. 259) on what are charitable uses or trusts. 
 Reconsideration; law of the case. 
 
 Cited in Olney v. Boston & M. R. Co. 73 X. II. 91, 59 Atl. 387, holding ques- 
 tion of law once decided is not reconsidered in same case, except upon motion for 
 .rehearing. 
 
 6 L. R, A. 788, CEXTRAL LITHOGRAPHING & ENGRAVING CO. v. MOORE, 
 
 75 Wis. 170, 17 Am. St. Rep. 186, 43 X. W. 1124. 
 Adoption of jury's conclusion. 
 
 Cited in Wright v. C. S. Graves Land Co. 100 Wis. 274, 75 X. W. 1001, to 
 point that court adopts jury's conclusion by refusing to set aside verdict. 
 
1199 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 792 
 
 Contract for skill anil labor. 
 
 Cited in Beck & P. Lithographing Co. v. Colorado Mill. & Elevator Co. 3 C. 
 C. A. 252, 10 U. S. App. 465, 52 Fed. 704, holding contract to make designs, 
 execute engravings, and embody them on stationery not contract of sale but one 
 for artistic skill and labor; Agnew v. Baldwin, 136 Wis. 268, 116 N. W. 641, 
 holding promise to fill lots is contract for services and not sale of property, and 
 is not within statute of frauds. 
 Bailment. 
 
 Cited in footnote to Sattler v. Hallock, 46 L. R. A. 679, which holds bailment 
 not sale created by contract by which farmers deliver produce at their factory for 
 manufacture and division of proceeds. 
 
 Cited in notes (17 L. R. A. 178) on vendor as bailee of vendee after contract 
 perfected; (37 Am. St. Rep. 540) bailment where work to be done on chattel. 
 
 6 L. R. A. 792. HUMPHREYS v. HOPKINS, 81 Cal. 551, 15 Am. St. Rep. 76, 
 
 22 Pac. 892. 
 Attachment of cars and rolling; stock. 
 
 Cited in Risdon Iron & Locomotive Works v. Citizens' Traction Co. 122 Cal. 
 97, 68 Am. St. Rep. 25, 54 Pac. 529, holding cars, trucks, and other personal 
 property of carrier of passengers, attachable; Davis v. Cleveland, C. C. & St. 
 L. R. Co. 217 U. S. 175, 54 L. ed. 719, 27 L.R.A.(N.S.) 829, 30 Sup Ct. 
 Rep. 463, 18 Ann. Cas. 907, holding that foreign railway cars coming into state 
 in course of interstate commerce are liable to attachment ; De Rochemont v. 
 New York C. & H. R. R. Co. 75 N. H. 160, 29 L.R.A.(X.S.) 530, 71 Atl. 868, 
 holding that foreign freight car which came within state in course of interstate 
 commerce, but which is not in use at time of attachment is subject to attach- 
 ment. 
 
 Cited in notes (64 L.R.A. 502) on attachment or garnishment of foreign rail- 
 road cars; (104 Am. St. Rep. 663) on attachment of foreign railroad cars. 
 Receivers; foreign jurisdictions. 
 
 Cited in Grogan v. Egbert, 44 W. Va. 78, 67 Am. St. Rep. 763, 28 S. E. 714: 
 Ward v. Pacific Mut. L. Ins. Co. 135 Cal. 236, 67 Pac. 124, holding that foreign 
 receiver will not be allowed to maintain action where there are conflicting claims 
 of domestic creditors; Lackmann v. Supreme Council, O. C. F. 142 Cal. 26, 75 
 Pac. 583, holding domestic creditor entitled to fund attached as against foreign 
 receiver; Choctaw Coal & Min. Co. v. Williams- Echols Dry Goods Co. 75 Ark. 
 368, 87 S. W. 632, 5 A. & E. Ann. Cas. 569, holding receiver of nonresident or 
 foreign corporation appointed in foreign state cannot defeat attachment or gar- 
 nishment levied or served before he acquires possession, by virtue of rights ac- 
 quired solely by his appointment and qualification; Woodhull v. Farmers' Trust 
 Co. 11 N. D. 164. 95 Am. St. Rep. 712, 90 X. W. 795. holding property of non- 
 resident defendant, in hands of receiver, if brought within state for lawful pur- 
 pose, cannot be seized under attachment proceedings in action brought against 
 nonresident in state to which such property is brought. 
 
 Cited in footnote to State v. Hubbard. 39 L. R. A. 860, which holds receiver 
 not an agent within statute as to embezzlement. 
 
 Cited in notes (8 L. R. A. (52) on foreign receivers; (9 L. R. A. 601) on re- 
 stricted authority of foreign receivers; (11 L. R. A. 480) on foreclosure of 
 railroad mortgage, appointment of receiver, and authority: (20 L. R. A. 392) 
 on exclusiveness of jurisdiction by appointment of receiver; (23 L. R. A. 54^1 
 on rights of receiver as to property outside of jurisdiction in which he is ap- 
 pointed. 
 
6 L.R.A. 792] L. II. A. CASES AS AUTHORITIES. 1200 
 
 Distinguished in The Willamette Valley, 13 C. C. A. 635, 29 U. S. App. 447, 
 66 Fed. 567, holding lienor may, without obtaining permission of court appoint- 
 ing receiver, proceed in rem, in foreign jurisdiction, against vessel in hands of 
 receiver, which lienor, after appointment of receiver, has furnished with coal in 
 foreign jurisdiction. 
 
 Disapproved in Jenkins v. Pureell. 29 App. D. C. 218, 9 L.R.A. (X.S.) 1078, 
 quashing attachment by local creditor of property brought within local juris- 
 diction by foreign receiver who obtained possession in foreign jurisdiction. 
 
 6 L. R. A. 799, CARRIER v. CHICAGO, R. I. & P. R. CO. 79 Iowa, 80, 44 X. W. 
 
 203. 
 Recovery of excessive payment to public service corporation. 
 
 Cited in note (18 L.R.A. (X.S.) 127) on recovery of excessive payments to 
 public service corporation. 
 Limitation of actions; effect of concealment of cause of action. 
 
 Cited in Mereness v. First Xat. Bank, 112 Iowa, 14, 51 L. R. A. 411, 84 Am. 
 St. Rep. 318, 83 X. W. 410, and Mather v. Rogers, 99 Iowa, 294, 68 X. \\'. 7');). 
 holding that fraudulent concealment of cause of action suspends running of 
 statute until right of action is discovered; Clark v. Ellsworth, 84 Iowa. 52i>. .">! 
 X. W. 31, holding that equity will relieve against judgment obtained by fraud, 
 which by reasonable diligence could not have been discovered within time for 
 application for retrial; Baird v. Omaha & C. B. R. & Bridge Co. Ill Iowa, 630, 
 82 N. W. 1020, holding that limitation to recover tax voted in aid of resident 
 bridge company, but illegally paid to foreign company, runs only from discovery 
 of mistake; Cook v. Chicago, R. I. & P. R. Co. 81 Iowa, 564, 9 L.R.A. 767 ; 
 3 Inters. Com. Rep. 387, 25 Am. St. Rep. 512, 46 X. W. 1080, holding running of 
 statute against action for unreasonable freight charge suspended where facts 
 fraudulently concealed by defendant, and plaintiff without knowledge ; Conditt 
 v. Holden, 92 Ark. 621, 135 Am. St. Rep. 206, 123 S. W. 765, holding that stat- 
 ute of limitations does not begin to run until discovery of fraud where there 
 has been fraudulent concealment of cause of action; Atchison, T. & S. F. R. Co. 
 v. Atchison Grain Co. 68 Kan. 596, 75 Pac. 1051, 1 A. & E. Ann. Gas. 639 
 (dissenting opinion), on preventing statute from running by fraudulent con- 
 cealment of cause of action; Boyd v. Beebe, 64 W. Va. 220, 17 L.R.A. (X.S.) 60o, 
 61 S. E. 304, holding mere silence is insufficient to prevent running of statute, 
 some affirmative action being required. 
 
 Cited in footnotes to Sanborn v. Gale, 26 L. R. A. 864, which holds running of 
 limitation against action for alienation of wife's affections not prevented by 
 agreement of parties to adultery known to husband to deny same; Moreness v. 
 First Xat. Bank, 51 L. R. A. 410, which holds running of limitations on demand 
 certificate of deposit, not interrupted by bank's misrepresentations in denial of 
 liability; Smith v. Blachley, 53 L. R. A. 849. which holds running of limitation 
 against action to recover back money not prevented by fraud unless investigation 
 prevented by affirmative efforts; Pietsch v. Milbrath, 68 L.R.A. 04o. which 
 holds that the fraudulent concealment of cause of action at law will not pre- 
 A r ent running of limitations where the statute expressly states that it shall not 
 run under such circumstances in equity cases. 
 
 Cited in notes (25 L. R. A. 569) on statutes of limitation as affected by con- 
 cealment of cause of action; (8 L. R. A. 688) on statute of limitations in case 
 ol concealed fraud; (7 L. R. A. 820) on limitation does not begin to run until 
 discovery of fraud: (25 Am. St. Rep. 227: 16 Eng. Rul. Gas. 259) as to when 
 limitations begin to run in case of fraud or concealment. ** 
 
 Distinguished in McBride v. Burlington, C. R. & X. R. Co. 97 Iowa, 95, 5!) 
 
1201 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 802: 
 
 Am. St. Rep. 395, G6 X. W. 73, holding concealment of cause of injury resulting 
 in death not prevent running of statute against right to maintain action ; 
 Daugherty v. Daugherty, 116 Iowa, 248, 90 X. YV. 65, holding running of limita- 
 tions against action for proceeds of land by beneficiary of trust arising from, 
 fraudulently procured conveyance, not suspended till discovery of fraud; Mc- 
 kay v. McCarthy, 146 Iowa, 551, 34 L.R.A. (X.S.) 914, 123 X. W. 755, holding 
 that statute of limitations runs against action for damages for false represen- 
 tations inducing sale of stock from time of consummation of transaction and not. 
 from time of discovery of fraud. 
 Exceptions to operation of statute. 
 
 Cited in Hawley v. Griffin, 121 Iowa, 699, 97 X. W. 86, holding proceeding by 
 heirs of insane person to vacate decree quieting title of grantee in tax deed 
 governed by limitations contained in statute authorizing it. 
 
 Disapproved in Murray v. Chicago & X. W. R, Co. 35 C. C. A. 65, 92 Fed. 871 K 
 Affirming 62 Fed. 44, holding concealment of cause of action for unreasonable- 
 charge for freight, not within exception to statute of limitation providing relief 
 in cases of fraud, and common law cannot make exception. 
 
 6 L. R. A. 802, CHESTER v. BLACK, 132 Pa, 568, 19 Atl. 276. 
 
 Followed without special discussion in Harrisburg v. Adams, 2 Dauphin Co.. 
 Rep. 388, 5 Pa. Dist. R, 379; Chester v. Cunliffe, 7 Del. Co. Rep. 99; Dunbar v. 
 Williamsport, 9 Pa. Co. Ct. 452. 
 
 Validity of retroactive legislation as to taxes, assessments, duties and 
 the like. 
 
 Cited in Donley v. Pittsburgh, 147 Pa. 351, 29 W. N. C. 363, 30 Am. St. Rep.. 
 738, 23 Atl. 394, holding that legislature may provide for assessments for 
 street improvements made under void act; Shuttuck v. Smith, 6 N. D. 80, 69- 
 N. W. 5, holding that legislature may validate defective tax levy; Philadelphia 
 v. Armstrong, 16 Pa. Super. Ct. 58, raising without deciding question whether 
 act permitting filing of municipal liens within six months after assessment oper- 
 ates retroactively; Philadelphia v. Hey, 20 Pa. Super. Ct. 482, holding that 
 legislature may revive municipal liens for street improvements theretofore ex- 
 pired; State ex rel. Lownsberry v. District Ct. 102 Minn. 490, 113 X. W. 697, 
 holding irregularities and defects in contract made basis of judgment declaring- 
 it void cured and obliterated by city charter authorizing reassessment for 
 improvement contracted for by city; Philadelphia v. Athow, 10 Pa. Dist. R. 
 188, sustaining statute making municipal claims for costs of municipal im- 
 provements filed before its passage liens iintil fully paid and satisfied: Howell 
 v. Morrisville, 212 Pa. 353, 61 Atl. 932, on power of legislature to ratify subse- 
 quently what it could have authorized originally; Anderson v. Lower Merion 
 Twp. 217 Pa. 384, 66 Atl. 1115, holding legislature might authorize collection of 
 cost of sewer from property benefited thereby, where township had paid for it; 
 Xorthampton Borough v. Swartz. 12 Xorth. Co. Rep. 338, 20 Pa. Dist. R. 165, 
 holding that legislature may validate assessment for local improvements by 
 statute; Allegheny v. Stewart. 43 Pa. Super. Ct. 539, holding that abutting lots 
 benefited by street improvements made under void authority may be charged 
 with assessment by subsequent legislation ; United States v. Heinszen, 206 U. 
 S. 388, 51 L. ed. 1104, 27 Sup. Ct. Rep. 742, 11 A. & E. Ann. Cas. 688, holding 
 Congress has power to ratify illogal exaction of duties in Philippine Islands, 
 though action pending at date of ratifying statute to recover duties paid. 
 Constitutional provision for uniformity of taxation. 
 
 Cited in Harrisburg v. McPherran, 4 Dauphin Co. Rep. 64,. Affirmed in 14 Pa. 
 L.R.A. Au. Vol. I. 76. 
 
L.R.A. 802] L. R. A. CASES AS AUTHORITIES. 1202 
 
 Super. Ct. 483; Beaumont v. Wilkes-Barre, 6 Kulp, 126; Harrisburg v. Miller, 
 2 Dauphin Co. Rep. 225, holding front-foot assessments, constitutional ; Meggett 
 v. Eau Claire, 81 Wis. 330, 51 N. W. 566, holding absence of benefits no defense 
 to front-foot assessment for local improvement; Alfalfa Irrig. Dist. v. Collins, 
 46 Xeb. 425, 64 N. W. 1086, holding act providing for local assessments for 
 irrigation system, constitutional. 
 
 Cited in note (12 L. R. A. 852) on exemption of church property from special 
 assessment under exemption from taxes generally. 
 
 6 L. R. A. 804, ST. LOUIS, I. M. & S. R. CO. v. BIGGS, 52 Ark. 240, 20 Am. St. 
 
 Rep. 174, 12 S. W. 331. 
 Limitation of actions. 
 
 Cited in St. Louis, I. M. & S. R. Co. v. Yarborough, 56 Ark. 616, 20 S. W. 515, 
 holding that limitation runs from time of overflow, and not from making em- 
 bankment, where probability of such damage uncertain at earlier date; Val- 
 paraiso City W. Co. v. Dickover, 17 Ind. App. 241, 46 N. E. 591, holding that 
 limitation upon action for diversion of water during dry seasons runs from 
 time of injury; Augusta v. Lombard, 101 Ga. 728, 28 S. E. 994, holding that 
 limitation upon action for injuries from removal of gate to mill race in certain 
 times of high water, runs from overflow; Fremont, E. & M. Valley R. Co. v. 
 Harlin, 50 Neb. 711, 36 L. R. A. 422, 61 Am. St. Rep. 578, 70 N. W. 263, hold- 
 ing that limitation of action for overflow from railway ditches does not run 
 from time of construction; St. Louis, I. M. & S. R. Co. v. Anderson, 62 Ark. 
 363, 35 S. W. 791. holding that limitation upon action for obstruction of ditch 
 by railway embankment runs from time of construction; Cockrill v. Cooper, 
 29 C. C. A. 332, 57 U. S. App. 576, 86 Fed. 10, holding one-year statute not 
 applicable in Arkansas to actions against bank directors for excessive loans or 
 for misfeasance or nonfeasance; Emrich v. Little Rock Traction & Electric Co. 
 71 Ark. 75, 70 S. W. 1035, holding husband's action for damages resulting from 
 injury to wife governed by limitation applicable to "actions on case founded on 
 any contract or liability;" St. Louis, I. M. & S. R. Co. v. Stephens, 72 Ark. 129, 
 78 S. W. 766, holding statute of limitations did not begin to run against right 
 of action for injury to growing crops by obstruction of drainage by railroad 
 until injury happened, where it was uncertain at time of construction whether 
 it was necessarily injurious; St. Louis S. W. R. Co. v. Morris, 76 Ark. 545, 89 
 S. W. 846, holding limitations begin to run against action for damage to crops 
 caused by ditch from time injury was done, where ditch was of uncertain dur- 
 ation, and injurious effects thereof depended upon rains, seasons and floods; 
 Chicago, R. I. & P. R. Co. v. McCutchen, 80 Ark. 237, 96 S. W. 1054, holding 
 right of action for damage caused by raising railroad embankment so close to 
 ditch that dirt from embankment fell into it, not barred by statute of limi- 
 tations or by judgment in former action; Turner v. Overton, 86 Ark. 408, 20 
 L.R.A.(N.S.) 897, 111 S. W. 270, holding action for permanent injury to land 
 barred by statute where not brought within period of limitation after construc- 
 tion of ditch causing injury; St. Francis Levee Dist. v. Barton, 92 Ark. 409, 25 
 L.R.A. (X.S.) 647, 123 S. W. 382, holding compensation for permanent injury to 
 land by construction of embankment interfering with drainage must be sought 
 in one action and statute begins to run from time drainage is obstructed: Kelly 
 v. Kansas City Southern R. Co. 92 Ark. 470, 123 S. W. 664, to same effect; St. 
 Louis, I. & M. S. R. Co. v. Waldrop, 93 Ark, 52, 123 S. W. 786, holding that 
 action for damages for obstruction of stream by embankment where obstruction 
 is permanent must be brought within three years from time embankment is 
 completed; Virginia Hot Springs Co. v. McCray, 106 Va. 464, 10 L.R.A. (.\>. 
 
1203 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 805 
 
 467, 56 S. E. 216, 10 A. & E. Ann. Cas. 179, approving rule that limitations be- 
 gins to run from time of construction of permanent structure producing im- 
 mediate injury to land; Pickens v. Coal River Boom Co. 66 W. Va. 16, 24 
 L.R.A. (X.S. ) 358. 65 S. E. 865, holding that action for damages caused to owner 
 of mill by operation of boom may be recovered from time to time as damage 
 occurs, and statute runs only from time each loss occurs; Hill v. Empire State- 
 Idaho Min. & Developing Co. 158 Fed. 883, holding where damage complained of 
 was due to discharge of tailings and waste material into stream from ore re- 
 duction works, right of action did not accrue until actual injury of land. 
 
 Cited in footnote to Church of Holy Communion v. Paterson Extension R. Co. 
 55 L. R. A. 81, which holds limitation begins to run for injuries to church wall 
 from insufficiency of retaining wall built in constructing track from time 
 injury occurs. 
 
 Cited in notes (126 Am. St. Rep. 953) on operation of statute of limitations 
 where cause of action for nominal damages subsequently ripens into right to 
 actual damages; (16 Eng. Rul. Cas. 231) as to when limitations begin to run 
 where wrongful act and damage are not instantaneous. 
 
 Distinguished in Middlekamp v. Bessemer Irrigating Co. 46 Colo. 121, 23 
 L.R.A. (X.S.) 803, 103 Pac. 280, holding injury done to land by irrigation canal 
 Avhence seepage occurs is permanent, and state begins to run from time lands 
 are first visibly afYected and injured. 
 
 Cited in Kansas City, Ft. S. & M. R. Co. v. Cook, 57 Ark. 396, 21 S. W. 1066, 
 holding loss in rental value, measure of damages from insufficient outlet in 
 roadbed; Cleveland, C. C. & St. L. R. Co. v. Kline, 29 Ind. App. 394, 63 X. E. 
 483, holding prospective damages not recoverable in action for obstruction of 
 water course by railroad embankment; Chicago, R. I. & P. R. Co. v. Davis, 26 
 Okla. 438, 109 Pac. 214, holding that land owner may recover for permanent 
 injury to land caused by roadbed and ditches of railroad diverting surface water 
 and recovery of such damages results in consent that such ditches may be main- 
 tained. 
 
 Cited in notes (25 Am. St. Rep. 672) on liability of railroad for damages from 
 embankment throwing water on adjoining land; (118 Am. St. Rep. 877) on 
 continuance of nuisance as new nuisance; (128 Am. St. Rep. 960, 966) as to 
 when nuisance will support only one recovery and when it may support several. 
 Permanent or continuing' injury to land. 
 
 Cited in Hughes v. Chicago, B. & Q. R. Co. 141 Iowa, 277. 133 Am. St. Rep. 
 164, llfl X. \V. !>24. holding structure may be permanent without resulting 
 injury being original and permanent. 
 
 6 L. R. A. 805, r'AYERNVKATHKR v. PHEXIX IXS. CO. 118 X. Y. 324, 28 
 
 X. Y. S. R. 689, 23 X. E. 192. 
 Effect of agreement giving; carrier benefit of insurance. 
 
 Cited in Xorth British & Mercantile Ins. Co. v. Central Vermont R, Co. 9 
 App. Div. 8, 40 X. Y. Supp. 1113, holding that where carrier has benefit of 
 insurance no cause of action accrues to insurer by subrogation ; Dundee Chemical 
 Works v. Xew York Mut. Ins. Co. 12 Mi>c. 35.-). 33 X. Y. Supp. 628, holding 
 that acceptance of bill of lading giving carrier benefit of insurance and destroying 
 insurer's right of subrogation invalidates policy: Bradley v. Lehigh Valley R. Co. 
 145 Fed. 573. holding insurer making advances to insured may recover from 
 carrier for goods lost though bill of lading provides carrier shall have benefit of 
 insurance obtained by shipper. 
 
6 L.R.A. 805] L. R. A. CASES AS AUTHORITIES. 1204 
 
 Cited in note (29 L.R.A. (N.S.) 703) as to effect of discharge of person pri- 
 marily liable for loss, or of contractual provision giving him benefit of insur- 
 ance, upon insured's right of action against insurer. 
 Subrogation of insurer to rights of insured. 
 
 Cited in Munson v. New York C. & H. R. R. Co. 32 Misc. 286, 65 X. Y. Supp, 
 848, holding insurer subrogated to rights of insured against one causing loss; 
 London & L. F. Ins. Co. v. Rome, W. & O. R. Co. 68 Hun, 600, 23 N. Y. Supp. 
 231, holding insurer paying loss on goods in common carrier's charge subrogated 
 to rights of insured; Kennedy Bros. v. Iowa State Ins. Co. 119 Iowa, 33, 91' 
 .<!. W. 831, holding that one releasing railroad from liability for negligently 
 ,'ausing fire, without knowledge of insurer entitled to subrogation, cannot re- 
 lover insurance; Lyons v. Boston & L. R. Co. 181 Mass. 557, 64 X. E. 404 (dis- 
 senting opinion), majority holding statute giving railroad liable for causing 
 fire, benefit of insurance on property not impair obligation of policies previously 
 issued providing for insurer's subrogation to insured's rights; Hanna v. People'* 
 Xat. Bank. 76 App. Div. 231, 78 N. Y. Supp. 516 (dissenting opinion), on sub- 
 rogation of insurance company paying loss to rights of insured. 
 
 Cited in notes (23 Am. St. Rep. 159; 44 Am. St. Rep. 735) on 'subrogation of 
 insurer. 
 Action on insurance policy Pleading and proof. 
 
 Cited in Long Creek Bldg. Asso. v. State Ins. Co. 29 Or. 573, 46 Pac. 366, 
 holding that performance or waiver of condition precedent to recovery on insur- 
 ance policy must be pleaded and proved. 
 
 6 L. R, A. 807, TWENTY-THIRD STREET BAPTIST CHURCH v. CORXWELL, 
 
 117 N". Y. 601, 28 X. Y. S. R. 48, 23 X. E. 177. 
 Voluntary contract. 
 
 Cited in Myers v. Dean, 11 Misc. 370. 32 X. Y. Supp. 237, holding no action 
 lies on promise to pay brokerage made after services performed ; Re James, 78. 
 Hun, 125, 28 X. Y. Supp. 992, holding bond by husband to wife unenforceable 
 against estate when without actual consideration; Rogers v. Galloway Female 
 College, 64 Ark. 637, 39 L. R. A. 641, 44 S. W. 454, holding organizer of, and 
 subscriber to, fund to found college, bound after acceptance of subscription and 
 location of college; Davis v. Bronson, 2 N. D. 309, 16 L. R. A. 659, 33 Am. St. 
 Rep. 783, 50 X. W. 836, holding that party performing executory contract after 
 repudiation by other party, cannot recover contract price; Bundrant v. Boyce, 47 
 Ind. App. 2GO, 92 X. E. 126 (dissenting opinion), on effect of death of promisee 
 on promise to donate money to church ; People's Bank & T. Co. v. Weidinger, 73 
 X. J. L. 439, 64 Atl. 179, holding promise of father of illegitimate children ta 
 provide in his will for receipt of money by mother for support of herself and 
 children during life revoked by his death; Sager v. Gommermann, 50 Misc. 508, 
 100 X. Y. Supp. 406, holding subscriber to agreement to build butter factory after 
 subscribers representing certain number of cows had been obtained not liable un- 
 der such agreement where he requested that his name be taken from list before 
 required subscribers had been obtained. 
 
 Cited in notes (22 L.R.A. 80) on whether subscription contract joint or several; 
 (11 Eng. Rul. Cas. 233) on parol evidence as to expenditure on faith of volun- 
 tary subscription. 
 
 6 L. R. A. 808, BARRY v. CAPEX, 151 Mass. 99, 23 N. E. 735. 
 Effect on contract of illegal performance. 
 
 Cited in Fox v. Rogers, 171 Mass. 547, 50 X. E. 1041, holding recovery on con- 
 
1205 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 809 
 
 tract to lay drain not barred by illegal construction; Dunham v. Hastings Pave- 
 ment Co. 56 App. Div. 250, 67 N. Y. Supp. 632, holding contract, to endeavor to 
 secure right to make bids for laying certain paving material, not rendered illegal 
 by illegal acts in performance; Knut v. Xutt, 83 Miss. 374, 35 So. 686, holding 
 attorney entitled to agreed compensation for prosecuting claim against govern- 
 ment, though procuring settlement by use of influence; Dunham v. Hastings 
 Pavement Co. 57 App. Div. 429, 68 N. Y. Supp. 221, holding whether contracting 
 parties contemplated performance of illegal acts, question for jury; Cole v. 
 Brown-Hurley Hardware Co. 139 Iowa, 494, 18 L.R.A.(X.S-) 1165, 117 N. W. 746, 
 16 A. & E. Ann. Cas. 846, holding landlord bound by promise in lease to secure 
 trackage in alley in rear of leased premises, though trackage could not be secured 
 without obtaining permission of city council; Kerr v. American Pneumatic Service 
 Co. 188 Mass. 29, 73 N. E. 857, holding contract contemplating only legitimate 
 services not illegal because agent employed under it might misconduct himself and 
 use corrupt methods in dealing with public agencies. 
 
 Cited in footnote to Crichfield v. Bermudez Asphalt Paving Co. 42 L. R. A. 347, 
 which holds void, employment to promote business of paving company including 
 procuring of passage of ordinance for paving streets and alleys with commissions 
 contingent on success. 
 
 Cited in note (12 L. R. A. 120) as to contracts not binding on makers. 
 
 6 L. R. A. 809, PULLMAN PALACE CAR CO. v. LOWE, 28 Neb. 239, 26 Am. St. 
 
 Rep. 325, 44 N. W. 226. 
 Innkeeper's liability. 
 
 Cited in Taylor v. Downey, 104 Mich. 536, 29 L. R. A. 97, 53 Am. St. Rep. 
 472, 62 X. W. 716, holding hotel keeper not liable for boarder's money taken by 
 night clerk from drawer in safe to which boarder carried key; Clancy v. Barker, 
 71 Xeb. 87, G9 L.R.A. 647, 115 Am. St. Rep. 559, 98 N. W. 440, 8 A. & E. Ann. Cas. 
 682, holding hotel keeper liable on ground of breach of contract for injury to 
 child of guest by hotel servant who pointed loaded revolver at child, which was 
 injured by its discharge through some means; Holstein v. Phillips, 146 N. C. 374. 
 14 L.R.A. (X.S) 478, 59 S E. 1037, 14 A. & E. Ann. Cas. 323, holding propri- 
 etors of summer resort liable to guest for valuables stolen from trunk during 
 guest's absence from room. 
 
 Cited in footnote to Fay v. Pacific Improvement Co. 16 L. R. A. 188, which 
 holds character of guest at hotel not lost by merely inquiring as to price of 
 room and board, without any agreement as to length of stay. 
 
 Cited in notes (12 L. R. A. 383) as to who is a guest; (8 L. R. A. 98; 12 L. R. 
 A. 382) liability of innkeeper as bailee; (21 L. R, A. 291) on liability of sleeping 
 car company as innkeeper. 
 Carrier's liability. 
 
 Cited in Voss v. Wagner Palace Car Co. 16 Ind. App. 298, 43 X. E. 20 (dis- 
 senting opinion) majority holding company liable for loss of passenger's cape 
 through dishonesty of porter. 
 
 Cited in notes (6 L.R.A. 620J on delivery to agent or servant of carrier is 
 delivery to carrier; (130 Am. St. Rep. 33) on liability of railroad company for 
 injuries or losses due to operation of cars not owned by it; (!) L.R.A. (X.S.) 409) 
 on duty of sleeping car company as to baggage or personal effects. 
 
 Disapproved in Williams v. Webb, 27 Misc. 510, 58 X. Y. Supp. 300, holding 
 sleeping car company not insurer of passenger's baggage, money, or effects; 
 Voss v. Wagner Palace Car Co. 16 Ind. App. 279, 43 X. E. 20, holding sleeping 
 car company liable as common carrier for safe delivery of baggage intrusted to 
 porter who undertook to deliver. 
 
6 L.R.A. 813] L. R. A. CASES AS AUTHORITIES. 1206 
 
 6 L. R. A. 813, MILLER v. FINEGAX, 26 Fla. 29, 7 So. 140. 
 Homestead exemption. 
 
 Cited in Godwin v. King, 31 Fla. 530, 13 So. 108, holding that dower right in 
 homestead exemption not taken away by provision that such exemption shall 
 inure to widow and heirs of party entitled thereto; Scull v. Beatty, 27 Fla. 435, 
 9 So. 4, holding constitutional provisions for accrual of exemptions to heirs not 
 limited to resident heirs. 
 
 Cited in footnotes to Campbell v. Jones, 6 L. R. A. 783, which holds land 
 larger in area than law allows, received in exchange for homestead, liable as to 
 excess, to existing debts; Wilkinson v. Merrill, 11 L. R. A. 032, which holds 
 householder not deprived of homestead right by death of entire family; Bosquett 
 v. Hall, 9 L. R. A. 351, which refuses homestead exemption because of residence 
 of children strangers in blood; Purnell \. Reed, 21 L. R. A. 839, holding that 
 husband can dispose of homestead by will, subject to widow's dower, where with- 
 out children. 
 
 Cited in notes (11 L. R. A. 705, 9 L. R. A. 804) as to homestead rights. 
 Family defined. 
 
 Cited in Adams v. Clark, 48 Fla. 211, 37 So. 734, holding husband and wife 
 constitute family; also that grauddaughter adopted at age of one month was 
 member of family in good faith. 
 
 Cited in footnote to Cross v. Benson, 64 L.R.A. 560, which holds wife the 
 family of the owner within meaning of the homestead laws, where husband and 
 wife occupy land belonging to him as a homestead. 
 
 Cited in notes (7 L. R. A. 747) as to definition of family; (8 L. R. A. 746) 
 as to construction of wills; (4 L.R.A. (X.S.) 391) on what constitutes a "family" 
 under homestead and exemption laws. 
 
 6 L. R. A. 821, WILLIAMS v. STATE, 25 Fla. 734, 6 So. 831. 
 
 6 L. R. A. 823, GATO v. EL MODELO CIGAR MFG. CO. 25 Fla. 886, 23 Am. 
 
 St. Rep. 537, 7 So. 23. 
 General demurrer. 
 
 Cited in Brown v. Florida Chautauqua Asso. 59 Fla. 454, 52 So. 802, holding 
 that general demurrer should be overruled where there is equity stated, even 
 though allegations are not full and complete. 
 Trademarks. 
 
 Cited in Gaines v. E. Whyte Grocery, Fruit & Wine Co. 107 Mo. App. 526, 81 
 S. W. 648, holding right of proprietor of whisky trademark to injunctive relief 
 against use of it on whisky other than that produced by such proprietor, not 
 lost by laches where wrongful use of trademark was not discovered by proprietor 
 until shortly before suit; Bluthenthal v. Mohlmann, 49 Fla. 279, 38 So. 709. 
 holding bill for injunction and accounting not demurrable for want of equity, 
 where it showed use by defendant of brand so far resembling plaintiff's as to 
 enable defendant to sell his brand of whisky as plaintiff's. 
 
 Cited in footnotes to McVey v. Brendel, 13 L. R. A. 377, which holds equity 
 \yill not protect labor union in use of nontrademark label; Koehler v. Sanders. 
 9 L. R. A. 576, which denies right to appropriate word ''international" as trade- 
 mark. 
 
 Cited in notes (9 L. R. A. 145, 146, 149) as to trademarks and rights thereto; 
 (10 L. R. A. 833) as to trademark and tradename; (17 L. R. A. 130) concerning 
 labels as trademarks; (19 L.R.A. 56) as to invalidity of deceptive trademarks; 
 (85 Am. St. Rep. 105) on what words or phrases may constitute a valid trade- 
 
1207 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 829 
 
 marTc: (45 L. eel. U. S. 60, 61, 68, 69) on laches or abandonment of trademark as 
 
 defense. 
 
 Proprietor's name. 
 
 Cited in Robinson v. Storm, 103 Tenn. 54, 52 S. W. 880, holding that proprietor 
 cannot so use his name in business as to defraud another. 
 
 Cited in footnotes to American Order of S. C. v. Merrill, 8 L. R. A. 320, which 
 refuses to enjoin organization of corporation with name similar to existing one; 
 L-.imb Knit-Goods Co. v. Lamb Glove & Mitten Co. 44 L. R. A. 841, which denies 
 right to use own name so as to deceive public as to business rightfully engaged 
 in by another; Symonds v. Jones, 8 L. R. A. 570, which holds transferrer of 
 trademark though containing his name or initials cannot use same. 
 
 Cited in notes (1 L.R.A.(X.S.) 662; 52 L. ed. U. S. 482) on limitation of right 
 to use one's own name as tradename. 
 Geographical name. 
 
 Cited in Pillsbury-Washburn Flour Mills Co. v. Eagle, 41 L. R. A. 167, foot- 
 note p. 162, 30 C. C. A. 397, 58 U. S. App. 490, 86 Fed. 619, which authorizes 
 injunction against use of geographical name on flour made elsewhere from wheat 
 of different grade. 
 
 Cited in footnotes to American Waltham Watch Co. v. United States Watch 
 Co. 43 L. R. A. 826, which authorizes injunction against deceptive use of word 
 "Waltham" by other manufacturer of watches at same place; Levy v. Waitt. 
 25 L. R. A. 190, which refuses to enjoin, as infringement, uninterrupted and inno- 
 cent use without question of local geographical name for five years. 
 
 Cited in note (45 L. ed. U. S. 372) on trademark in geographical name. 
 
 Distinguished in Elgin Butter Co. v. Elgin Creamery Co. 155 111. 137, 40 X. 
 E. 616, holding Elgin Creamery Co. entitled to use its name as against pre- 
 existing Elgin Butter Co. also of Elgin, in absence of fraud. 
 Dnmagres. 
 
 Cited in Hennessy v. Wilmerding-Loewe Co. 103 Fed. 94, holding wilful in 
 fringer of trademark liable for injury to business; C. F. Simmons Medicine Co. 
 v. Mansfield Drug Co. 93 Tenn. 146, 23 S. W. 165, holding ordering accounting 
 customary in assessment of damages in trademark infringement cases; Regis v. 
 Jaynes. ]91 Mass. 247, 77 X. -E. 774, holding party using infringing trademark- 
 chargeable with profits made upon all sales under guise of infringing trademark, 
 in taking account of profits. 
 
 Distinguished in Gregory v. Spieker, 110 Cal. 155, 52 Am. St. Rep. 70, 42 Pac. 
 576, holding business lost to buyer, not profits of seller measure for breach of 
 contract of sale of proprietary compound. 
 
 6 L. R. A. 829, FOOT v. CARD, 58 Conn. 1, 18 Am. St. Rep. 258, 18 Atl. 1027. 
 Alieiintiiigr husband's affection. 
 
 Cited in Lockwood v. Lockwood, 67 Minn. 482, 70 N. W. 784; Williams v. 
 Williams, 20 Colo. 56, 37 Pac. 614; Humphrey v. Pope, 122 Cal. 258. 54 Pac. 847, 
 holding that wife has action at common law for damages against woman enticing 
 away husband; Knapp v. Wing, 72 Vt. 338, 47 Atl. 1075, holding that woman has 
 action for alienation of husband's affections resulting in loss of conjugal society, 
 and support; Price v. Price, 91 Iowa, 697, 29 L. R. A. 151, 51 Am. St. Rep. 360, 
 tin X. W. -202: Haynes v. Xowlin, 129 Ind. 583, 14 L. R. A. 790, 28 Am. St. Rep. 
 213, 29 X. E. 389; Beach v. Brown, 20 Wash. 268, 43 L. R. A. 116, 72 Am. St. 
 Rep. 96, 55 Pac. 46; Deitzman v. Mullin R. Co. 108 Ky. 614, 50 L. R. A. 810, 
 footnote p. 808, 94 Am. St. Rep. 300, 57 S. W. 247, holding that wife may main- 
 tain action for enticing husband away and alienating affections where disability 
 
6 L.R.A. 829] L. R. A. CASES AS AUTHORITIES. 1208 
 
 to sue removed; Warren v. Warren, 89 Mich. 128, 14 L. R. A. 547, footnote p. 
 545, 50 iSI. W. 842; Clow v. Chapman, 125 Mo. 104, 26 L. R. A. 413, footnote p. 
 412, 46 Am. St. Rep. 468, 28 S. W. 328 upholding wife's right of action for 
 alienating husband's affections and depriving her of his society where she has 
 right to own separate property, including actions for violation of personal rights; 
 Oernerd v. Gernerd, 185 Pa. 236, 40 L. R. A. 550, 42 W. N. C. 51, 64 Am. St. 
 Rep. 646, 39 Atl. 884, and Wolf v. Frank, 92 Md. 141, 52 L. R. A. 104, footnote 
 p. 102, 48 Atl. 132, holding that married woman may sue for enticing husband 
 away where statute removes disability to sue for tort; Postlewaite v. Postle- 
 waite, 1 Ind. App. 478, 28 N. E. 99, holding that 'divorced woman has action for 
 alienating affections of former husband; Daley v. Gates, 65 Vt. 593, 27 Atl. 193, 
 holding original allegation of enticing husband away per quod consortium amisit, 
 and new count charging criminal conversation with same per quod, set up same 
 ause of action; Hart v. Knapp, 76 Conn. 138, 100 Am. St. Rep. 989, 55 Atl. 1021, 
 "holding recovery in damages may be had by wife against woman alienating 
 husband's affections; Xoxon v. Remington, 78 Conn. 297, 61 Atl. 963, sustaining 
 recovery by wife of seventy-five against woman of sixty-four for alienation of 
 affections of husband of seventy-four; Marri v. Stanford Street R. Co. 84 Conn. 
 16, 33 L.R.A.(N.S.) 1050, 78 Atl. 582, Ann. Cas. 1912B, 1120, to the point that 
 liusband may maintain action for alienation of wife's affections and that ground 
 of such action is loss of consortium; Gregg v. Gregg, 37 Ind. App. 217, 75 X. E. 
 674, holding wife has remedy like to that of husband for substantial injury 
 suffered by alienation of spouse's affections; Xolin v. Pearson, 191 Mass. 290, 
 4 L.R.A.(N.S.) 649, 114 Am. St. Rep. 605, 77 N. E. 890, 6 A. & E. Ann. Cas. 658, 
 sustaining right of wife to maintain action for criminal conversation with hus- 
 T>and and causing him to refuse performance of marital relations and abandon 
 home and wife; Quick v. Church, 23 Ont. Rep. 272, holding wife may maintain 
 action for alienation of husband's affections; Hodge v. Wetzler, 69 N. J. L. 492, 
 55 Atl. 49, on existence of right of action by wife at common-law for alienation 
 of husband's affections; Sims v. Sims, 79 N. J. L. 580, 29 L.R.A. (X.S.) 845, 
 76 Atl. 1063, holding that under act of 1906 chapter 248, wife may sue in her own 
 name for alienation of husband's affections. 
 
 Cited in footnotes to Betser v. Betser, 52 L. R. A. 630, which sustains wife's 
 right of action for alienating husband's affections; Tucker v. Tucker, 32 L. R. A. 
 C23, which holds parent not liable for advising son to separate from wife; Doe 
 v. Roe, 8 L. R. A. 833, which holds action for alienating husband's affections by 
 debauching and carnally knowing him, not maintainable; Houghton v. Rice, 
 47 L. R. A. 310, which denies right of action against woman for alienating hus- 
 band's affections unaccompanied by adultery; Sanborn v. Gale, 26 L. R. A. 864, 
 which holds running of limitation against action for alienation of wife's affec- 
 tions not prevented by agreement of parties to adultery known to husband to 
 deny same; Hodgkinson v. Hodgkinson, 27 L. R. A. 120, holding that wife has 
 an action for damages against any one causing abandonment by her husband. 
 
 Cited in notes (10 L. R. A. 468) as to liability for interrupting marital rela- 
 tions; (11 L.R.A. 549) as to actions for inducing violation of obligations; (28 
 Am. St. Rep. 218; 46 Am. St. Rep. 473, 474, 477) on wife's action for alienation 
 of husband's affections. 
 
 Disapproved in Duffies v. Duffies, 76 Wis. 380, 8 L. R. A. 423, 20 Am. St. Rep. 
 79, 45 N. W. 522, holding that Avife has no right of action for enticing husband 
 away, thus depriving her of society and support; Smith v. Smith, 98 Tenn. 105. 
 60 Am. St. Rep. 838, 38 S. W. 439, holding that wife cannot prosecute for alien- 
 ating husband's affections where statute authorizes her to so prosecute for 
 causes arising subsequent to desertion. 
 
1209 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 835 
 
 Cruelty. 
 
 cited in Mayhew v. Meyhew, 61 Conn. 235, 29 Am. St. Rep. 195, 23 Atl. 966 r 
 holding that husband must forbear exercise of marital rights when injurious to 
 wife's health. 
 Coexistence of -wrong: and remedy. 
 
 Cited in New Haven v. Fresenius, 75 Conn. 150, 52 Atl. 823, holding that city 
 may maintain action at law against treasurer failing to deposit funds in desig- 
 nated bank; Lonstorf v. Lonstorf, 118 Wis. 161, 95 N. W. 961, denying wife's 
 right of action for alienation of husband's affections; Mathewson v. Mathewson, 
 79 Conn. 25, 5 L.R.A.(N.S.) 612, 63 Atl. 285, 6 A. & E. Ann. Cas. 1027, holding 
 when law creates new right to contract mere creation thereof includes appropri- 
 ate remedy by suit for its violation. 
 Cessante ratione legis cessat Ipsa lex. 
 
 Cited in Mathewson v. Mathewson, 79 Conn. 26, 5 L.R.A.(N.S.) 612, 63 Atl. 
 285. 6 Ann. Cas. 1027, holding consequent effect of legislation upon civil rights of 
 married women, within reason of rule that law ceases to operate where its 
 reason fails. 
 
 6 L. R. A. 833, BANK OF MENDOCINO v. BAKER, 82 Cal. 114, 22 Pac. 1037. 
 Notice. 
 
 Cited in Dennis v. Northern P. R. Co. 20 Wash. 331, 55 Pac. 210, holding stat- 
 ute granting right of way to railroad, notice to purchaser from one holding under 
 deed from railway omitting reservation of right by mistake; Tarke v. Bingham, 
 123 Cal. 166, 55 Pac. 759, holding mortgagee not chargeable with knowledge of 
 scrivener's error in copying note in mortgage; Svetinich v. Sheean, 124 Cal. 218, 
 71 Am. St. Rep. 50, 56 Pac. 1028, holding party notified at time of execution sale 
 of half interest of wife, that husband claims entire interest, purchaser with 
 notice; Hyde v. Mangan, 88 Cal. 327, 26 Pac. 180, holding notorious and ex- 
 clusive possession under land contract equivalent to express notice to subsequent 
 purchaser from vendor out of possession; Prouty v. Devin, 118 Cal. 260, 50 Pac. 
 380, holding omission to pass upon question of constructive notice from facts 
 arousing inquiry, ground for reversing judgment determining priority of mort- 
 gages; Title & Document Restoration Co. v. Kerrigan, 150 Cal. 318, 8 L.R.A. 
 (X.S.) 682, 119 Am. St. Rep. 199, 88 Pac. 356, holding rule that means of 
 knowledge is equivalent to knowledge applies wherever circumstances impose upon 
 party duty of inquiry. 
 
 Cited in notes '8 L.R.A. 211) on constructive notice by possession of land; 
 (13 L.R.A. (X.S.) 80; 104 Am. St. Rep. 344) on effect of possession of real prop- 
 erty as notice. 
 \Vhat constitutes title by adverse possession. 
 
 Cited in footnote to Swan v. Munch, 35 L. R. A. 743, which holds title by pre- 
 scription obtainable by wrongful entry under claim of right. 
 
 Cited in note ( 10 L. R. A. 388 ) on title under adverse possession. 
 
 6 L. R. A. 835, GERMAN INS. CO v. GUECK, 130 111. 345, 23 N. E. 112. 
 Waiver of conditions in policy. 
 
 Cited in Home Ins. Co. v. Bethel, 142 111. 549, 32 N. E. 510, holding requirement 
 of proofs of loss waived where refusal to pay based on ground of lack of insur- 
 able interest; Millers' Nat. Ins. Co. v. Jackson Count}' Mill. & Elevator Co. 60 
 111. App. 229. holding proof of loss waived where refusal to pay placed on other 
 ground of nonliability; Phenix Ins. Co. v. Belt R. Co. 82 111. App. 271; Home Ins. 
 Co. v. Bethel. 42 111. App. 480, holding proofs of loss waived where liability 
 denied in any event; Phenix Ins. Co. v. Stocks, 149 111. 335, 36 N. E. 408, holding 
 
6 L.R.A. SC5] L. R. A. CASES AS AUTHORITIES. 1210 
 
 condition requiring arbitration waived where refusal to pay based on grounds not 
 subject to arbitration ; Bernhard v. Rochester German Ins. Co. 79 Conn. 392, 65 
 Atl. 134, 8 A. & E. Ann. Cas. 298, holding company estopped to insist upon re- 
 quirement as to furnishing proofs of loss by conduct of agent in telling assured 
 that everything necessary had been done; also that assured was excused from pro- 
 ceeding to secure an award by company's repudiation of any obligation; Taylor v. 
 Glen Falls Ins. Co. 44 Fla. 286, 32 So. 887, holding proofs of loss provided for 
 in policy waived by unconditional denial of any liability thereon by company. 
 
 Cited in footnotes to Hoffman v. Michigan Home & Hospital Asso. 54 L.R.A. 
 746, \vhich holds failure to comply with requirements as to proofs of loss not 
 fatal when liability denied for other reason; Phenix Ins. Co. v. Kerr, 66 L.R.A. 
 569, which holds proofs of loss waived by distinct denial of liability under policy 
 within time prescribed for proofs on ground that there was no contract of insur- 
 ance. 
 
 Cited in notes (8 L. R. A. 78) on waiver of proofs of loss; (7 L. R. A. 83) 
 on provision requiring statement and proof of loss; (67 L.R.A. 724, 732, 740) 
 on retention of policy as waiver of mistake or fraud of insurer or its agent; 
 (17 Am. St. Rep. 247) on waiver of conditions in insurance policies. 
 Reformation of instruments. 
 
 Cited in Cook v. Westchester F. Ins. Co. 60 Xeb. 131, 82 X. W. 315, reforming 
 and enforcing, after loss, policy incorrectly inserting wrong person's name as 
 owner through mistake of agent; McGuire v. Hartford F. Ins. Co. 7 App. Div. 
 586, 40 X. Y. Supp. 300, holding insured entitled to enforce policy without 
 reformation, where agent failed to note disclosed encumbrances; Keith v. Henkle- 
 man, 173 111. 142, 50 X. E. 692, holding that equity, on reforming bond, may 
 assess damages for its breach; Taylor v. Glens Falls Ins. Co. 44 Fla. 286, 32 So. 
 887, holding reformation of policy might be had where agent inadvertently made 
 it out in name of deceased owner of insured property; Xiagara F. Ins. Co. v. 
 Jordan, 134 Ga. 671, 68 S. E. 611, holding case of mutual mistake relievable in 
 equity made by inadvertent substitution of another for insured under alleged 
 circumstances, and acceptance of policy in reliance on agent to issue it according 
 to his engagement: Gray v. Merchant's Ins. Co. 113 111. App. 542, holding policy 
 containing clause limiting company's liability to proportion sum insured lease 
 to actual value or rental of premises at time of fire might be reformed by 
 eliminating such provision. 
 
 Cited in footnote to Bigham v. Madison, 47 L. R. A. 267, which authorizes 
 rescission for mutual mistake as to location of boundary lines pointed out by 
 vendor. 
 
 Cited in notes (11 L. R. A. 857) on mistake in written contract, relief from; 
 (17 L. R. A. 273) on parol evidence to vary, add to, or alter written contract 
 in case of fraud, surprise, or mistake; (11 L.R.A. (X.S.) 357) on reformation of 
 insurance policy for mistake of soliciting agent; (28 L.R.A. (X.S.) 834) on refor- 
 mation for mistake of law as to effect of instrument; (117 Am. St. Rep. 238, 243) 
 on mistakes for which written instruments may be cancelled or corrected in equity. 
 Recovery of money paid toy mistake. 
 
 Cited in footnotes to Alton v. First Nat. Bank, 18 L. R. A. 144, which denies 
 indorsee's right to recover back amount paid under mistaken belief as to liabil- 
 ity; Langevin v. St. Paul, 15 L. R. A. 766. which holds agent's mistaken belief 
 that all of lots jointly sold for taxes belonged to principal not ground for re- 
 covery back of any of redemption money paid. 
 Equitable relief from mistake of law. 
 
 Cited in Errett v. Wheeler, 109 Minn. 165, 26 L.R.A. (X.S.) 816, 123 N. W. 
 
1211 L. R. A. CASES AS AUTHORITIES. " [6 L.R.A. 839 
 
 414, holding relief not granted from consequences of mistake of law in satisfying 
 mortgage of record. 
 
 G L. R. A. 839, CHADWICK v. COVELL, 151 Mass. 190, 21 Am. St. Rep. 442, 23 
 
 X. E. IOCS. 
 Trademark, trade name, and labels. 
 
 Cited in Covell v. Chachvick, 153 Mass. 266, 24 Am. St. Rep. 625, 26 N. E. 856, 
 holding that purchaser of formulas has no exclusive right to accompanying labels 
 and trademarks as against former donee; Weener v. Brayton, 152 Mass. 102, 
 8 L. R. A. 642, 25 X. E. 46, refusing injunction to restrain use of label adopted 
 generally by association of workmen on products of each ; Gessler v. Grieb, 80 
 \Vis. 26, 27 Am. St. Rep. 20, 48 X. W. 1098, refusing injunction against use of 
 unpa tented formula, where products sold under different name; Dover Stamping 
 Co. v. Fellows, 163 Mass. 196, 28 L. R. A. 450, 47 Am. St. Rep. 448, 40 X. E. 
 105, refusing to enjoin use of name merely descriptive of patented article, after 
 expiration of patent; Messer v. The Fadettes, 168 Mass. 143, 37 L. R. A. 722, 
 60 Am. St. Rep. 371, 46 N. E. 407, refusing to enjoin use of name of orchestra 
 by former members, though organizer sold all rights in same to plaintiff; Stewart 
 v. Hook, 118 Ga. 447, 63 L.R.A. 256, 45 S. E. 369, denying liability of subsequent 
 to prior purchaser from same vendor of secret formula for medical preparation: 
 Saxlehner v. Wagner, 216 U. S. 381, 54 L. ed. 528, 30 Sup. Ct. Rep. 298, holding 
 that if no deception is used one person may imitate water from natural spring 
 especially where the name applied thereto has become the name for natural water 
 coming from quite an extensive district; Dr. Miles Medical Co. v. John D. Park & 
 Sons Co. 220 U. S. 402, 55 L. ed. 516, 31 Sup. Ct. Rep. 376, holding that person 
 having secret process for manufacture of unpatented article is protected only 
 against invasion of rights by fraud or by breach of trust or contract; Jacobs v. 
 Beecham, 221 U. S. 272. 55 L. ed. 732, 31 Sup. Ct. Rep. 555, holding that using 
 name of manufacturer of pills under secret formula upon pills made by competitor 
 is unfair although accompanied by statement that latter makes the pills; John D. 
 Park & Sons Co. v. Hartman, 12 L.R.A. (X.S.) 141, 82 C. C. A. 158, 153 Fed. 29, 
 Reversing 145 Fed. 362, holding trade secret or medical formula protects its 
 owner only against those who acquire it under confidential obligation to guard 
 against disclosure, and one is free to use process or formula if discovered by skill 
 and investigation without breach of trust, and may make and sell thing or 
 preparation as made by process or formula of original discoverer, if that be the 
 truth; Pomeroy Ink Co. v. Pomeroy, 77 X. J. Eq. 296, 78 Atl. 698, to the point 
 that employee will be enjoined from using or communicating process or invention 
 of employer. 
 
 Cited in footnote to Dempsey v. Dobson, 32 L. R. A. 761, which holds carpet 
 manufacturers entitled to record of recipes prepared by color mixer employed. 
 
 Cited in notes (1 L.R.A. ( X.S. ) 709) on sale of trademark; (12 L.R.A. (N.-. 
 104; 133 Am. St. Rep. 762, 767) on protection of secret processes and trade 
 secrets. 
 
 Distinguished in Brown Chemical Co. v. Meyer. 139 U. S. 548, 35 L. ed. 250, 
 11 Sup. Ct. Rep. 625, holding that retiring member of firm may sell to latter 
 exclusive right to use his trade name; Xew England Awl & Needle Co. v. Marl- 
 borough Awl & Xeedle Co. 168 Mass. 155, 60 Am. St. Rep. 377, 46 N. E. 386, 
 enjoining use of packages for products identical with those used by established 
 business; Wat kins v. Landon, 52 Minn. 393, 19 L. R. A. 239, 38 Am. St. Rep. 
 560, 54 N. W. 193, holding party honestly obtaining formula, entitled to com- 
 pound and sell product, but not to use established trade name: Le Page Co. v. 
 llu^ia Cement Co. 17 L. R. A. 355, 2 C. C. A. 557, 5 U. S. App. 112, 51 Fed. 943, 
 
6 L.R.A. 839] L. R. A. CASES AS AUTHORITIES. 1212 
 
 and Petrolia Mfg. Co. v. Bell & B. Soap Co. 97 Fed. 783, enjoining vendor to 
 manufacturing corporation of right to use trade name on its products, from in- 
 fringing use of name; Harrison v. Glucose Sugar Ref. Co. 58 L. R. A. 921, 53 
 C. C. A. 491, 116 Fed. 311, enjoining employee from putting to use in competi- 
 tive business, secrets learned during service; Little v. Gallus, 4 App. Div. 57!>, 
 38 N. Y. Supp. 487 (dissenting opinion), majority enjoining former employees 
 from using secret processes learned during service. 
 
 As property. 
 
 Cited in Hart v. Smith, 159 Ind. 186, 58 L. R. A. 952, 95 Am. St. Rep. 280, 
 
 64 X. E. 661, holding goodwill of business subject to taxation as property; 
 Cohen v. Xagle, 190 Mass. 18, 2 L.R.A.(N.S.) 973, 76 X. E. 276, 5 Ann. Cas. 553, 
 as to existence of right of property in such words as "Keystone Cigars;" O'Bear- 
 Xester Glass Co. v. Antiexplo Co. 101 Tex. 434, 16 L.R.A.(X.S.) 522, 130 Am. St. 
 Rep. 865, 108 S. W. 967, holding secret formula for preparing compound to be 
 mixed with gasolene, kerosene and other oils to prevent explosions not property 
 within meaning of constitutional restrictions on subscriptions to corporate stock. 
 
 Cited in footnote to Stewart v. Hook, 63 L.R.A. 255, which upholds property 
 right of discoverer of medical preparation in his discovery. 
 
 Cited in note (13 L. R. A. 652) on property in secrets, processes, and recipes. 
 
 Asslgrnaltility. 
 
 Cited in Grossman v. Griggs, 186 Mass. 280, 71 X. E. 560, holding name or 
 
 trademark of G. H. B & Co. not assignable in gross ; Bulte v. Igleheart Bros. 
 
 70 C. C. A. 76, 137 Fed. 499, holding transfer of business and good will of owner 
 of symbol necessary qualification to assignability of trademark. 
 
 Distinguished in JEtna Mill & Elevator Co. v. Kramer Milling Co. 82 Kan. 
 684, 28 L.R.A.(X.S.) 939, 109 Pac. 692, holding labels for sacks of flour bearing 
 manufacturer's name purchasable. 
 
 6 L. R. A. 842, Re WOMEN AS NOTARIES PUBLIC, 150 Mass. 586, 23 X. E. 
 850. 
 
 Supplementary opinion on construction of statute in Opinion of Justices, 165- 
 Mass. 599, 32 L. R. A. 350, 43 X. E. 927. 
 Woman's right to hold office. 
 
 Cited in State ex rel. Atty. Gen. v. Adams, 58 Ohio St. 615, 41 L. R. A. 727, 
 
 65 Am. St. Rep. 792, 51 X. E. 135. holding woman ineligible to appointment as 
 notary under constitutional qualifications for state officers; Atty. Gen. v. Ab- 
 bott, 121 Mich. 547, 47 L. R. A. 96, 80 X. W. 372, holding disability bar to ap- 
 pointment as notary, in absence of enabling statute; Opinion of Justices, 165 
 Mass. 599, 32 L. R. A. 350, footnote p. 350, 43 X. E. 927, holding statute au- 
 thorizing appointment of women as notaries public by governor with consent of 
 common council, unconstitutional: Opinion of Justices, 73 X. H. 624, 5 L.R.A. 
 (X.S.) 417, 62 Atl. 969, 6 A. & E. Ann. Cas. 283, holding woman not qualified to 
 fill office of notary public. 
 
 Cited in note (38 L. R. A. 214) on right of woman to hold office. 
 
 To practise law. 
 
 Cited in footnote to Re Maddox, 55 L. R. A. 298, which denies right of woman 
 to practise law. 
 
 6 L. R. A. 844, WESTERN U. TELEG. CO. v. ADAMS, 75 Tex. 531, 16 Am. St. 
 
 Rep. 920, 12 S. W. 857. 
 l):i mniics for negligence as to telegram. 
 
 Cited in Young v. Western U. Teleg. Co. 107 N. C. 378, 9 L. R. A. 672, 22 Am. 
 
'1213 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 844 
 
 St. Rep. 883, 11 S. E. 1044; Mentzer v. Western U. Teleg. Co. 93 Iowa, 755, 28 
 L. R. A. 73, 57 Am. St. Rep. 294, 62 N. W. 1; Western U. Teleg. Co. v. Odom, 
 21 Tex. Civ. App. 539, 52 S. W. 632; Potts v. Western U. Teleg. Co. 82 
 Tex. 547, 18 S. W. 604 upholding recovery for mental anguish and suffering; 
 Western U. Teleg. Co. v. Ferguson, 157 Ind. 78, 54 L. R. A. 851, 60 N. E. 1080 
 (dissenting opinion) majority holding damages for mental anguish not re- 
 coverable; Mitchell v. Western U. Teleg. Co. 5 Tex. Civ. App. 530, 24 S. W. 550, 
 holding more than nominal damages recoverable for substantial injury due to 
 delay in delivering message; McPeek v. Western U. Teleg. Co. 107 Iowa, 363, 43 
 L. R. A. 218, 70 Am. St. Rep. 205, 78 N. W T . 63, holding that sendee's damages 
 include all injurious results flowing naturally from delay in delivery of tele- 
 gram; Western U. Teleg. Co. v. Kirkpatrick, 76 Tex. 218, 18 Am. St. Rep. 
 37, 13 S. W. 70, holding only damages recoverable and those in contemplation of 
 parties at time of contract; Western U. Teleg. Co. v. Jobe, 6 Tex. Civ. App. 
 408, 25 S. W. 168, holding evidence of expressions tending to show mental an- 
 guish, admissible; Western U. Teleg. Co. v. Johnson, 9 Tex. Civ. App. 50. 28 
 S. W. 124, holding proof of mental anguish unnecessary where record shows facts 
 indicating it; Thomas v. Western U. Teleg. Co. 25 Tex. Civ. App. 400, 61 S. W. 
 501, holding that law of state where telegram sent governs right to damages for 
 mental anguish resulting from nondelivery; Western U. Teleg. Co. v. Leland, 156 
 Ala. 338, 47 So. 62 (dissenting opinion), on recovery for mental anguish in 
 absence of affirmative proof thereof by reason of failure promptly to transmit 
 message; Western U. Teleg. Co. v. Benson, 159 Ala. 271, 48 So. 712, holding 
 direct evidence of mental pain caused by failure to deliver death message prompt- 
 ly not indispensable to furnish foundation for assessment of damages for mental 
 anguish ; Western U. Teleg. Co. v. Simmons, 32 Tex. Civ. App. 579, 75 S. W. 822, 
 holding plaintiff suing to recover for mental anguish suffered on account of not 
 being present at funeral of relative may be required to answer questions put 
 to ascertain whether mental anguish was in fact suffered from such cause; 
 Barnes v. Western U. Teleg. Co. 27 Nev. 445, 65 L.R.A. 679, 103 Am. St. Rep. 776, 
 76 Pac. 931, 1 A. & E. Ann. Cas. 346, holding damages allowable for mental 
 suffering due to failure to deliver message whether accompanied by physical suf- 
 fering or not. 
 
 Cited in footnote to Getty v. Peters, 10 L. R. A. 464, which holds damages for 
 mental anguish alone from delay in delivering telegram unrecoverable. 
 
 Cited in notes (7 L. R. A. 583) on damages for neglect to deliver telegram; 
 "(13 L.R.A. 860) on right to recover damages for mental anguish alone; (117 
 Am. St. Rep. 314) on elements of damages recoverable for failure to transmit 
 and deliver telegrams. 
 
 Distinguished in Western U. Teleg. Co. v. Waller, 96 Tex. 593, 97 Am. St. Rep. 
 936, 74 S. W. 751, holding evidence of dying mother's inquiries and requests for 
 son's presence inadmissible in action for delay in delivering telegram summoning 
 him. 
 
 Disapproved in Chapman v. Western U. Teleg. Co. 88 Ga. 764, 17 L. R. A. 
 431, 30 Am. St. Rep. 183, 15 S. E. 901; Connell v. Western U. Teleg. Co. 116 Mo. 
 49, 20 L. R. A. 178, 38 Am. St. Rep. 575, 22 S. W. 345; Kester v. Western U. 
 Teleg. Co. 55 Fed. 604; Western U. Teleg. Co. v. W T ood, 21 L. R. A. 712, 6 C. C. 
 A. 450, 13 U. S. App. 317, 57 Fed. 477; Western U. Teleg. Co. v. Rogers, 68 Miss. 
 756, 13 L. R. A. 862, 24 Am. St. Rep. 300, 9 So. 823 holding damages for 
 mere mental suffering unrecoverable. 
 Messages in cipher. 
 
 Distinguished in Fererro v. Western U. Teleg. Co. 9 App. D. C. 471, 35 L. R, 
 A. 552, holding consequential damages recoverable for delayed cipher message. 
 
6 L.R.A. 814] L. R. A. CASES AS AUTHORITIES. 1214 s 
 
 Kotice of ImportKJMie CBBair*tioas relating to sictmeiw and death. 
 
 Cited in Western U- Teleg. Co. v. Gahan, 17 Tex. Civ. App. 661, 44 S. W. 933. 
 holding message: "Your father is very sick, would like to see you," plainly for 
 benefit of addressee; Western U. Teleg. Co. v. Ward, 4 Tex. App. Civ. Cas. (Will- 
 son | p. 554, holding telegram, "Minnie died to-day," sufficient notice to company 
 of its importance; Western U. Teleg. Co. v. Hargrove, 14 Tex. Civ. App. 83, 3G 
 S. W. 1077, holding telegram, "Daniel is very sick, come at once," sufficient no- 
 tice to company; Kennon v. Western U. Teleg. Co. 126 X. C. 235. 35 S. E. 468 T 
 holding that notice of importance of telegram must be brought to attention of 
 company in some way to authorize recovery; Davis v. Western U. Teleg. Co_ 
 107 Ky. 529, 92 Am. St. Rep. 371, 54 S. W. 849, holding message relating to 
 death, sufficient notice of necessity of prompt delivery: Postal Teleg. 4 Cable Co. 
 v. Beal. 159 Ala. 252. 4S So. 676. holding message: "John badly hurt wants to see 
 
 yon at S coal mine, 7 ' signifies importance and notice of relationship between 
 
 parties; Western U. Teleg. Co. v. Church, 3 Xeb. (Unof.) 32, 57 LU.A. 909, 9fr 
 X. W. 878, holding message to doctor telling him to come at once sufficient to 
 give notice of need of prompt delivery. 
 Xatmre of <MMBMMic*tio diiM-Io*ed by MM term*. 
 
 Cited in Western U. Teleg. Co. v. Feegles, 75 Tex. 540, 12 S. W. 860, holding 
 that relationship need not be disclosed on face of telegram, to sustain action for 
 injury to mother's feelings; Western U. Teleg. Co. v. Moore, 76 Tex. 67, 18 Am. 
 St. Rep. 25, 12 S. W. 949, holding words, "Billie is very low; come at once," 
 sufficient notice of relationship; Western U. Teleg. Co. v. Carter, 85 Tex. 585, 
 34 Am. St. Rep. 826, 22 S. W. 961, holding telegraph company only charged 
 with notice of relationship existing between person named in message; Western 
 U. Teleg. Co. v. Lian, 87 Tex. 11, 47 Am. St. Rep. 58, 26 S. W. 490, holding tele- 
 gram, '"Grace is very low," sufficient notice of its importance; Erie Teleg. Co. T. 
 Grimes, 82 Tex. 95, 17 S. W. 831, holding agent's actual or discoverable knowl- 
 edge of importance of telegram from its face, chargeable to company; Western 
 U. Teleg. Co. v. Xagle, 11 Tex. Civ. App. 541, 32 S. W. 707, holding company 
 liable where cipher message was known by it to be important and marked 
 -rush:" Western U. Teleg. Co. v. Snow, 31 Tex. Civ. App. 279, 72 S. W. _ 
 holding expression '"Come quick" sufficient notice of urgency of telegram to ren- 
 der company liable for delay in delivering; Mitchell v. Western U. Teleg. Co. 
 5 Tex. Civ. App. 531, 24 S. W. 550, holding that sufficient notice of main purpose 
 of message puts telegraph company upon inquiry of other facts; Western 1 \ 
 Teteg. Co. v. Church, 3 Xeb. (Unof.) 32. 57 LJLA. 909, 90 N. W. 878, holding tele- 
 2 ram to physician "'Come at once," sufficient notice to support action for substan- 
 tial damages; Western U. Teleg. Co. v. Turner, 94 Tex. 309, 60 S. W. 432. holding 
 company in default liable when message read: "Accept offer five three quarters:" 
 Western U. Teleg. Co. v. Weniski. 84 Ark. 461, 106 S. W. 486, holding message: 
 "If yon can. come at once, Clara" signed "Pa." does not disclose facts leading to 
 information of any special injury by reason of nondelivery; Western U. Teleg. Co. 
 T. Potts, 120 Tenn. 4* 19 KR_A.(XJS.) 481, 127 Am. St. Rep. 991, 113 S. W. 
 789, holding company may learn grounds upon which it may base estimate of. 
 or anticipate damages naturally consequent upon failure properly to deliver, 
 either from facts communicated to its agents outside message, or from message 
 itself; Western U. Teleg. Co. v. Kibble, 53 Tex. Civ. App. 226, 115 S. W. 643. 
 holding that telegram "come at once" is insufficient in and of itself to charge 
 company with notice that mental suffering would probably result to addressee 
 from failure to promptly deliver it. 
 
3215 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 844 
 
 Liability for m in take in teleg-ram. 
 
 Cited in footnote to Western U. Teleg. Co. v. Short, 9 L. R. A. 744, which holds 
 company prima facie liable for failure to transmit message correctly. 
 V, lin may sue for breach of contract. 
 
 Distinguished in House v. Houston Waterworks Co. 88 Tex. 239, 28 L. R. A. 
 533, 31 S. W. 179, holding that citizen cannot recover for injuries due to breach 
 of contract between waterworks company and municipality. 
 AH to telegrams. 
 
 Cited in Western U. Teleg. Co. v. Beringer, 84 Tex. 39, 19 S. W. 336, uphold- 
 ing recovery by person for whom message was sent, although sender not his 
 agent; Western U. Teleg. Co. v. Hale, 11 Tex. Civ. App. 81, 32 S. W. 814, hold- 
 ing message, "Allen is very low," for benefit of addressee; -Fererro v. Western 
 U. Teleg. Co. 9 App. D. C. 467, 35 L. R. A. 550, holding that receiver of mes- 
 sage may maintain action for damages; Sherrill v. Western U. Teleg. Co. 1CJ X. 
 C. 533, 14 S. E. 94; Butler v. Western U. Teleg. Co. 62 S. C. 232, 89 Am. St. Rep. 
 893, 40 S. E. 162; Western U. Teleg. Co. v. Mellon, 96 Tenn. 71, 33 S. W. .725 
 holding action for nondelivery maintainable by person named as beneficiary, 
 although not addressee; Herron v. Western U. Teleg. Co. 90 Iowa, 131, 57 N. 
 W. 696, holding that telegraph company may be liable to addressee for delay 
 in delivery of message; Mathonican v. Scott, 87 Tex. 398, 28 S. W. 1063, holding 
 that agreement for valuable consideration to pay debt of third person inures 
 to benefit of third person; Western U. Teleg. Co. v. Evans, 5 Tex. Civ. App. 58, 
 23 S. W. 998, upholding recovery where language of message was sufficient to 
 show its purpose and scope; Wells v. Western U. Teleg. Co. 144 Iowa, 617, 24 
 L.R.A. (X.S.) 1045, 138 Am. St. Rep. 317, 123 X. W. 371, holding that bank 
 which cashed check upon receipt of fictitious message purporting to be from 
 drawer's bank has right of action against telegraph company where agent of 
 company knew facts; Frazier v. Western U. Teleg. Co. 45 Or. 419, 67 L.R.A. 321,. 
 78 Pac. 330, 2 A. & E. Ann. Gas. 396, holding telegraph company not liable to 
 addressee, for negligence in delivering message showing on its face it is for 
 benefit of sender; Western U. Teleg. Co. v. Cook, 45 Tex. Civ. App. 91, 99 S. W. 
 1131, holding party, who in fact was to be served and who is damaged may 
 sue on account, of delay in transmission and delivery of message; Whitehill v. 
 Western U. Teleg. Co. 136 Fed. 501, holding person for whose benefit message is- 
 sent, if that fact be apparant from telegram itself may maintain action for dam- 
 ages due to negligence of company. 
 
 Cited in footnote to Western U. Teleg. Co. v. Barefoot, 64 L. R. A. 491, which, 
 holds that agent may maintain action for nondelivery of telegram sent prin- 
 cipal to obtain confirmation of sale entitling him to commissions; Shingleur 
 v. Western U. Teleg. Co. 30 L. R. A. 444, which denies right of one voluntarily 
 carrying out contract by agent in accordance with telegram wrongly trans- 
 mitted, to recover against company; McC'ornick v. Western U. Teleg. Co. 38 L^ 
 R. A. 684, which denies telegraph company's liability to banker cashing draft on- 
 faith of incorrectly transmitted telegram from drawee purporting to author- 
 ize drawer to make draft. 
 
 Cited in notes (9 L.R.A. 669) on who may recover damages for delay in de- 
 livering telegram; 24 Eng. Rul. Cas. 784, 785, on addressee's right of action for 
 mistake in telegram. 
 
 Distinguished in Western U. Teleg. Co. v. Schriver, 4 L.R.A. (X.S.) 686, 72 
 C. C. A. 596, 141 Fed. 548. holding telegraph company does not owe to undis- 
 closed principal of addressee duty to receive and transmit authorized messages, 
 only. 
 
6 L.RJL 844] L. R. A. CASES AS AUTHORITIES. 1216 
 
 Cited in MeLeod v. Pacific States Teleph. A Teleg. Co. 52 Or. 27, 15 L.R.A. 
 (X.S.) 812, 94 Pae. 568, 16 A. & EL Ann. Cms. 1239, holding addressee of tele- 
 phone message has right of action against telephone company for failure to give 
 addressee notice of long distance calL 
 Damarrr* far mental mmf+rtmg. 
 
 Cited in Seifert v. Western U. Teleg. Co. 129 Ga, 185, 11 L.R.A.(X.S.) 1152. 5S 
 S. E. 699, on recovery of damages for mental anguish independently of physical 
 tort; Ft Worth & R. G. R. Co. v. Jones, 38 Tex. Civ. App. 137, 85 S. W. 37 
 (dissenting opinion), on absence of necessity of expressly proving mental an- 
 guish as basis of recovery of damages. 
 
 Cited in note (30 LJRJLrX.Sj 1143) on right of addressee of telegram to 
 recover for mental suffering from delay in delivery. 
 KvMeMce to mho-w meata! RIfc. 
 
 Cited in Willis T. Western U. Teleg. Co. 69 S. G. 535, 104 Am. St Rep. 828, 48 
 S. E. 538, 2 A. & EL Ann. Cas. 52, holding that plaintiff can state his own pecu- 
 liar apprehensions and conclusions as to mother's condition on failure to receive 
 answer to telegram. 
 
 Cited in note (19 LJLA.CSLS.) 410, 411) on what evidence admissible to 
 show mental anguish. 
 
 6 L. R. A. 847, STATE v. GILLMAX, 33 W. Va. 146, 10 S. E. 283. 
 Police p*wer. 
 
 Cited in Man Lack T. Sears, 29 Or. 427, 32 L. R. A. 739, 54 Am. St. Rep. 804, 
 44 Pae. 693, upholding validity of statute making possession of opium without 
 license or prescription, a crime; State v. Goodwill, 33 W. Ya. 185, 6 L. R. A. 
 624, 25 Am. St. Rep. 863, 10 S. EL 285, holding statute discriminating between 
 mine and factory owners, and other owners of property, as to labor contracts, 
 void; State v. Peel Splint Coal Co. 36 W. Va. 857, 17 L. R. A. 403, 15 S. E. 
 1000 (dissenting opinion) majority holding statutes prohibiting issue of scrip 
 by employer to employee redeemable in anything except lawful money, and 
 requiring payment for coal by weight before screening, valid; State v. Swift. 
 35 W. Va. 545, 14 S. EL 135, holding agent receiving order in Roane county on 
 his firm in Wood county, indictable where order taken unless acting under 
 state license; Eidge v. Bessemer, 164 Ala. 603, 26 L.R.A.(X.S.) 397, 51 So. 246. 
 holding ordinance prohibiting keeping of vinous, spirituous or malt liquors, or in- 
 toxicating beverage which is product of maltaee, or gencase. as substantial in- 
 gredient or storage or deposit where beverages are kept for sale, is void; Schwartz 
 T. People, 46 Colo. 263, 104 Pac- 92, holding that if mandatory constitutional 
 provision in respect to prohibition by legislature of importation, manufacture 
 and sale of impure liquors covers entire subject matter of intoxicating liquors, 
 legislature exhausts its power respecting liquors of every sort, pure and impure, 
 by prohibiting importation, manufacture and sale of impure liquors enumerated 
 by such provision; Com. v. Campbell. 133 Ky. 62. 24 L.RJMX.S.) 383, 117 S. W. 
 383, holding it incompetent for legislature to prohibit citizen from having spiritu- 
 ous liquor in his possession for his own use: State v. Mclntyre. 139 X. C. 602, 
 52 S. EL 63, on unconstitutionality of law making mere ownership or possession of 
 given amount of whisky a crime; State v. Williams, 146 X. C. 633, 17 L.R.A. 
 <X.SJ 305, 61 Su K 61, 14 A. A EL Ann. Cas. 562, holding law prohibiting any 
 person from carrying into county more than one-half gallon of vinous, spiritu- 
 ous or malt liquor is not valid exercise of police power; Gulf. C. A S. F. R. Co. 
 v. State, 28 Okla. 760, 35 LRJMX.S.) 460, 116 Pac. 176, to the point that in- 
 
1217 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 849 
 
 toxicating liquors in state in which they may be sold are property within mean- 
 ing of constitution. 
 
 Cited in notes (1 L.R.A.(X.S.) 490) on constitutional command to enact law 
 as implied prohibition against further legislation on same subject; (15 L.R.A. 
 (X.S.; 915) on constitutional right to prohibit sale of intoxicants; (24 LJLA. 
 (N.S.) 175) on power to prohibit or restrict one's using liquor or having in pos- 
 session for use; (26 L.R.A.(N.S.) 394, 395) on power to prohibit keeping irre- 
 spective or any intention unlawfully to sell liquor. 
 
 6 L. R. A. 849, RICHMOND A D. R. CO. v. PAYNE, 86 Va. 481, 10 S. E. 749. 
 Limitation of common-law liability. 
 
 Cited in Nbrmile v. Oregon Nav. Co. 41 Or. 189, 69 Pac. 928, sustaining con- 
 tract limiting carrier's liability to certain valuation, in consideration of reduced 
 rate; Zouch v. Chesapeake & O. R- Co. 36 W. Va. 534. 17 L. R. A. 120, 15 S. 
 
 E. 185, holding valuation agreed upon at shipment for reduced rate, controlling 
 in absence of gross negligence; Pacific Exp. Co. v. Foley, 46 Kan. 4G3, 12 L. R. 
 A. 802, 26 Am. St. Rep. 107, 26 Pac. 665, holding limitation of liability where 
 no value disclosed in freight receipt, controlling in case of ordinary negligence; 
 Ullman v. Chicago & N. W. R. Co. 112 Wis. 157. 56 L. R. A. 249, 88 Am. 
 St. Rep. 949, 88 N. W. 41, holding agreed valuation whether inserted by ship- 
 per or carrier, an'l not objected to, controlling in absence of gross negligence; 
 Hanson v. Great Northern R. Co. 18 N. D. 333, 138 Am. St. Rep. 768, 121 N. W. 
 78, holding that under statute carrier cannot exonerate himself from liability 
 for loss or damage resulting from negligence; George N. Pierce Co. v. Wells, 
 
 F. & Co. 110 C. C. A. 645, 189 Fed. 564, holding that common carrier may con- 
 tract with shipper to limit amount of its liability for negligence. 
 
 Cited in footnotes to Chicago & N. W. R. Co. v. Chapman, 8 L. R, A. 508, 
 which holds carrier cannot limit liability for gross negligence or wilful miscon- 
 duct; Taffe v. Oregon R, & Nav. Co. 58 L. R. A. 187, which denies initial carrier's 
 liability under bill of lading beyond own line; Union State Bank v. Fremont, 
 E. & M. Valley R. Co. 59 L. R. A. 939, which sustains initial carrier's right to 
 limit liability to own line; Dlinois C. R. Co. v. Carter, 36 L. R. A. 527, which 
 denies liability of initial carrier for misdelivery by connecting line or warehouse-' 
 man. 
 
 Cited in notes (22 Am. St. Rep. 58) on limitation of carrier's liability: (23 
 Am. St. Rep. 594) on limitation of amount of carrier's liability; (88 Am. St. 
 Rep. 107) on limitation of carrier's liability in bills of lading; (1 L.R.A. <N>. 
 986) on limiting valuation of property as affecting amount of recovery for loss 
 by carrier's negligence; (42 L." ed. U. S. 690) on validity and construction of con- 
 tracts exempting from liability for negligence. 
 
 Distinguished in Calderon v. Atlas S. S. Co. 170 U. S. 279, 42 L. ed. 1036, 18 
 Sup. Ct. Rep. 588, holding limitation of liability to certain amount except where 
 special agreement on disclosed value made, invalid; Baltimore & O. S. W. R. Co. 
 v. Ragsdale, 14 Ind. App. 410. 42 N. E. 1106, holding agreed valuation of stock 
 in bill of lading not controlling in case of loss by negligence: Western U. Teleg. 
 Co. v. Seals, 56 Xeb. 418. 71 Am. St. Rep. 682, 76 N. W. 903, holding limita- 
 tion of liability for negligence in transmission of unrepeated telegraph messages 
 not controlling: Chesapeake * O. R. Co. v. Beasley. 104 Va. 792, 3 L.R.A.(N.S.) 
 187, 52 S. E. 566, holding under statute that carrier cannot limit his liability for 
 negligence by contract. 
 Bill of particular*. 
 
 Cited in Clarke v. Ohio River R. Co. 39 W. Va, 742, 20 S. E. 696, holding 
 L.R.A. Au. Vol. I. 77. 
 
6 L.R.A. 849] L. R. A. CASES AS AUTHORITIES. 1218 
 
 demand proper only where cause of action not disclosed and declaration not de- 
 
 murrable. 
 
 Liability of carrier of livestock. 
 
 Cited in note (37 L. ed. U. S. 293) on duty and liability as carrier of live 
 stock. 
 Liability of initial carrier. 
 
 Cited in footnotes to St. Louis, I. M. & S. R. Co. v. Coolidge, 67 L.R.A. 555, 
 which holds that delay by initial carrier in transporting goods liable to injury 
 by climate renders it liable for damage to goods delivered to consignee in damaged 
 condition, unless it shows that such delay did not produce the injury in whole or 
 part, notwithstanding delay of connecting carrier; Kansas City F. S. & M. R. Co. 
 v. Washington, 69 L.R.A. 65, which holds initial carrier checking baggage to 
 destination on through ticket liable for loss on connecting line. 
 
 6 L. R. A. 855, DELAWARE, L. & W. R. CO. v. CENTRAL STOCK YARDS & 
 
 TRANSIT CO. 45 N. J. Eq. 50, 17 Atl. 146. 
 Bfandatory injunction, when issnable. 
 
 Cited in Gatzmer v. St. Vincent School Soc. 147 Pa. 319, 23 Atl. 452. holding 
 mandatory injunction not issuable where complainant's rights not clear; Calla- 
 way v. Baltimore, 99 Md. 320, 57 Atl. 661, holding bill for injunction to restrain 
 city from doing anything under ordinance repealing ordinance appropriating 
 money for purchase of reservoir site insufficient in that it did not show right 
 to compel city to perform contract by taking and paying for such site. 
 When property impressed with pnblic use. 
 
 Cited in Indiana Natural & Illuminating Gas Co. v. State, 158 Ind. 519, 57 
 L. R. A. 762, 63 N. E. 220, holding gas company impressed with public use, 
 compelling nondiscriininating service; Willoughby v. Chicago Junction R. & 
 Union Stock- Yards Co. 50 N. J. Eq. 695, 25 Atl. 277, raising without deciding 
 whether stock-yards company charged with public duty. 
 
 Cited in note (6 L.R.A. (N.S.) S37) on businesses affected with public interest 
 subjecting them to regulation and control in respect to rates and prices. 
 Stock yards. 
 
 Cited in Ratcliff v. Wichita Union Stock Yards Co. 74 Kan. 10, 6 L.R.A. (N.S.) 
 841, 118 Am. St. Rep. 298, 86 Pac. 150, 10 A. & E. Ann. Gas. 1016, holding stock 
 yards business clothed with public interest and subject to regulation and control 
 by state; Eshleman v. Union Stock Yards Co. 222 Pa. 28, 70 Atl. 899, 15 A. & 
 E. Ann. Cas. 998, 25 Lane. L. Rev. 77, on correspondence of stock yards business 
 with that of warehousemen. 
 Power of legislature to declare and regulate. 
 
 Cited in State ex rcl. Star Pub. Co. v. Associated Press, 159 Mo. 462, 51 L. 
 R. A. 168, 81 Am. St. Rep. 368, 60 S. W. 91, holding that only legislature can 
 declare news-gathering agency impressed with public use; Budd v. New York. 143 
 U. S. 543, 36 L. ed. 255, 12 Sup. Ct. Rep. 468, and State ex rel. Stoeser v. Brass, 
 2 N. D. 501, 52 N. W. 408, holding grain elevators devoted to public use and 
 subject to legislative regulation; Getting v. Kansas City Stock Yards Co. 183 
 U. S. 85, 46 L. ed. 99, 22 Sup. Ct. Rep. 30, holding that legislature may fix 
 maximum stock yard charges; Jacquelin v. Erie R. Co. 69 N. J. Eq. 440, 61 Atl. 
 18, denying preliminary injunction to require railroad company to continue to 
 furnish railroad facilities at station which company desired to abandon ; Gulf 
 Compress Co. v. Harris, 158 Ala. 354, 24 L.R.A. (N.S.) 404, 48 So. 477, holding 
 that prescribing of rates for "public service corporation" as one ''affected with 
 public interest" is legislative and not judicial function, and that court of chan- 
 
1219 L. R. A. CASES AS AUTHORITIES. [6 L.R.A. 855 
 
 eery is without jurisdiction to fix rates; McCarter v. Firemen's Ins. Co. 74 N. J. 
 Eq. 405, 29 L.R.A.(N.S.) 1211, 73 Atl. 414 (dissenting opinion), on legislative 
 control of property devoted to public use. 
 
 Cited in note (25 Ain. St. Rep. 889) on power of legislature to prescribe rates 
 for services in businesses charged with public use. 
 Itig-hts of warehousemen. 
 
 Cited in footnote to Central Elevator Co. v. People, 43 L. R. A. 658, which 
 denies right of licensed warehouseman to deal in and store grain in own li- 
 censed warehouse. 
 
 Cited in notes (7 L.R.A. 529) on warehousemen as bailees; (24 L.R.A. (N.S.) 
 400) on power of equity to regulate charges of public warehouseman. 
 
L. R. A. CASES AS AUTHORITIES. 
 
 CASES IN 7 L. R A. 
 
 7 L.R.A. 33, O'CONNER v. O'CONNER, 88 Tenn. 76, 12 S. W. 447. 
 Vendor's lien. 
 
 Cited in Zwingle v. Wilkinson, 94 Tcnn. 250, 28 S. W. 1090, holding vendor's 
 equitable lien for unpaid purchase price of land not affected because note for bal- 
 ance of purchase money was executed to third person. 
 
 Cited in footnotes to Frame v. Sliter, 34 L. R. A. 090, which denies implied 
 equitable lien to grantor of land for unpaid purchase money; Doty v. Deposit 
 Bldg. & L. Asso. 43 L. R. A. 551, which holds vendor's lien enforceable against 
 land for entire amount unpaid on sale of real and personal property. 
 Fraudulent conveyance. 
 
 Cited in Blackmore v. Parkes, 20 C. G. A. 671, 54 U. S. App. 123, 81 Fed. 
 900, holding conveyance by insolvent in consideration that grantee pay debts of 
 the insolvent not fraudulent. 
 
 Distinguished in Spurlock v. Gill, 3 Shannon Cas. 43, holding strangers could 
 not object that an agreement to take goods and assume the debt was oral. 
 Action by mortgagee. 
 
 Cited in note (6 L. R. A. 612) on personal action by mortgagee. 
 Grantee's liability for existing: encumbrances. 
 
 Cited in Christian v. John, 111 Tenn. 101, 76 S. W. 906, holding grantees tak- 
 ing a deed expressly subject to mortgage estopped to set up its invalidity or that 
 it is barred by statute of limitation. 
 Action ag-ainst person assuming: debt or obligation. 
 
 Cited in Ruohs v. Traders' F. Ins. Co. Ill Tenn. 429, 102 Am. St. Rep. 790, 78 
 S. W. 85, holding policy holder entitled to sue in his own name against insurance 
 company assuming all the policies of insuring company for a sufficient consid- 
 eration. 
 Primary subjection of personalty to debts of decedent. 
 
 Cited in Whitmore v. Rascoe, 112 Tenn. 629, 85 S. W. 800, holding widow 
 subrogated to rights of lien creditors of husband's estate in his personal estate 
 who elect to take satisfaction out of the land where such election deprives widow 
 of her dower and homestead right. 
 Liability of heir for debt of ancestor. 
 
 Cited in note (112 Am. St. Rep. 1022) on liability of heir or devisee for debt 
 of ancestor. 
 
 1221 
 
7 L.R.A. 44] L. R. A. CASES AS AUTHORITIES. 
 
 7 L. R. A. 44, WHITE v. CINCINNATI. X. 0. & T. P. R. CO. 89 Ky. 478, 12 
 
 S. W. 936. 
 Effect of contributory m-uli - t-nrr respecting: stations and platforms. 
 
 Cited in Union P. R. Co. v. Evans. 32 Xeb. 55. 71 X. W. 1062, to point that one 
 knowing approach to railway station unsafe may recover for injury sustained 
 while exercising ordinary care. 
 
 Cited in note (44 L. R, A. 294) as to effect of contributory negligence on duty 
 of carrier of live stock to furnish pens at stations. 
 Knowledge of unsafe condition. 
 
 Cited in Louisville & X. R. Co. v. Treppon, 134 Ky. 657, 121 S. W. 454, holding 
 railroad company liable for injury caused by failure to exercise care in keeping 
 cars in reasonably safe condition where it has notice of defects. 
 Liability of carrier for injury to livestock. 
 
 Cited in note (130 Am. St. R?p. 461) on carriers liability for loss of. or in- 
 jury to, livestock. 
 
 7 L. R. A. 46, PITTSBURGH CARBOX CO. v. McMILLIX, 119 X. Y. 46, 28 
 
 N. Y. S. R, 807, 23 N. E. 530. 
 Rights and powers of receivers. 
 
 Cited in Gray v. De Castro & D. Sugar Ref. Co. 32 X. Y. S. R, 1020, 10 X. 
 Y. Supp. 632, sustaining injunction restraining corporation belonging to illegal 
 trust and for which receiver has been appointed from parting with assets re- 
 ceived under trust deed; Re Victor, 20 Misc. 15, 44 X. Y. Supp. 603, to point 
 that receiver while authorized to prosecute and defend actions is but the creature 
 of the court as trustee or custodian of fund: Hamor v. Taylor-Rice Engineering 
 Co. 84 Fed. 399, holding receiver as representative of creditors may assert de- 
 fense on their behalf which corporation could not maintain; Peabody v. New 
 England Water-Works Co. 184 111. 628, 75 Am. St. Rep. 195, 56 X. E. '.'57, hold- 
 ing receiver represents both corporation and creditors and may in behalf of latter 
 assert claim he could not maintain as representative of former; Harrington 
 v. Connor, 51 Neb. 219, 70 X. W. 911, holding defense not good against creditors 
 of bank and involving fraud against them not available in suit by receiver of 
 bank; Washington Mill Co. v. Sprague Lumber Co. 19 Wash. 171, 52 Pac. 1067, 
 holding receiver of insolvent corporation may disaffirm its acts and maintain 
 suit to set aside its fraudulent conveyances; Re Wendler Mach. Co. 2 App. Div. 
 19, 37 N. Y. Supp. 444, holding receiver has power to contest validity of mort- 
 gage given to secure bonds of insolvent corporation; Mott v. Edwards. '.'- 
 Div. 513. 90 X. Y. Supp. 303, holding a general assignee of insolvent corporation 
 in endeavoring to reach assets for benefit of creditors may enforce a claim 
 against one who while corporation was insolvent purchased its propertv and 
 paid for same to individual account of its officer; American Can Co. v. Erie 
 Preserving Co. 171 Fed. 542, holding a receiver for a corporation to wind up its 
 affairs may contest the validity of liens or pledges made by its corporation in 
 behalf of its general creditors. 
 
 Distinguished in Gray v. Oxnard Bros. Co. 31 X. Y. S. R. 972. 13 X. Y. Supp. 
 86, holding receiver of individual corporation in illegal partnership cannot main- 
 tain action for accounting or dissolution. 
 Monopolies. 
 
 Cited in United States v. Addyston Pipe & Steel Co. 46 L. R. A. 136. 20 C. 
 O. A. 160, 54 U. S. App. 723, 85 Fed. 291. holding contract to sell property, busi- 
 ness, or good will, or to create partnership or corporation, invalid if part of plan 
 to establish monopoly; National Harrow Co. v. Hench, 76 Fed. 669, holding com- 
 
1223 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 50 
 
 bination of patent owner* to prevent competition and maintain price illegal; 
 National Harrow Co. v. Hench, 39 L. R. A. 300, 27 C. C. A. 351, 55 U. S. App. 
 53, 83 Fed. 38, holding while patentees may compose their differences they can- 
 not make the occasion an excuse for creating monopolies; Lovejoy v. Miehels, 
 88 Mich. 28, 13 L. R. A. 775, 49 X. W. 901, by Champlin, Ch. J., to point that 
 combination to control prices is odious as illegal exercise of franchises of a mo- 
 nopoly; John D. Park & Sons Co. v. National Wholesale Druggists' Asso. 175 N. 
 Y. 36, 62 L. R. A. 647, 96 Am. St. Rep. 578, 67 N. E. 136 (dissenting opinion) 
 majority upholding agreement between manufacturers of medicines and whole- 
 salers made for purpose of maintaining uniform jobbing and retail prices; Peo- 
 ple v. Klaw, 55 Misc. 91, 106 X. Y. Supp. 341, holding a theater and play pro- 
 duction monopoly not within statute prohibiting a conspiracy to injure trade 
 or commerce. 
 
 Cited in footnote to Scott v. Wiswall, 42 L. R. A. 85, which holds con- 
 tracts with tugs severally for towage not invalidated by illegal combination 
 between owners to restain trade. 
 
 Cited in note (12 L. R. A. 754) on restraining monopoly as public nuisance. 
 Corporate a Met*. 
 
 Cited in Harrigan v. Gilchrist, 121 Wis. 238, 99 X. W. 909, holding that prop- 
 erty of corporation obtained by purchasers in fraud of creditors and stockholders 
 though gone beyond control of corporation itself may still be subjected to 
 claims of stockholders and creditors by creditors action for the property in effect 
 being held in trust for benefit of plaintiffs. 
 
 7 L. R. A. 48, GRIGGS v. STONE, 51 N. J. L. 549, 18 Atl. 1094. 
 Extent of implied warranty. 
 
 Approved in Troy Laundry Co. v. Henry, 23 Or. 236, 31 Pac. 484, holding im- 
 plied warranty of pulley on line shaft does not extend to machine to which it 
 communicates power. 
 
 7 L. R. A. 50, STATE v. TUTTY, 41 Fed. 753. 
 Validity of foreign marriage* 
 
 Cited in Jackson v. Jackson, 82 Md. 30, 34 L. R. A. 775, 33 Atl. 317, holding 
 Pennsylvania marriage based on general reputation good in absence of statute 
 declaring such marriages void; State v. Fenn, 47 Wash. 564, 17 L.R.A. ( X.S. ) 
 803, 92 Pac. 417, holding a subsequent marriage valid where contracted in good 
 faith in a state of residence other than that in which a divorce had been obtained 
 from a former marriage by one of the parties, and entered into within the time 
 limit prohibited by the decree of divorce; Lanliam v. Lanham, 136 Wis. 368, 17 
 L.R.A.iX.S.) 804, 128 Am. St. Rep. 1085, 117 X. W. 787, holding remarriage of 
 divorcee within time prohibited in state of divorce, by going without the state for 
 performance of the ceremony, void in the courts of such state. 
 
 Cited in footnotes to Re Stull, 39 L. R. A. 539, which holds invalid, marriage 
 between man and paramour in other state to avoid laws of domicil; Xorman v. 
 Norman, 42 L. R. A. 343, which holds marriage on high seas by parties leaving 
 land to evade laws of residence invalid ; Jackson v. Jackson, 34 L. R. A. 773, 
 \vhich sustains marriage valid in state where it was contracted. 
 
 Cited in notes (60 Am. St. Rep. 941, 946) on validity of foreign marriage in 
 violation of laws of place where parties reside. 
 Conflict of !:i v, -. 
 
 Cited in Sturgis v. Sturgis, 51 Or. 16, 15 L.R.A.(X.S-) 1037, 131 Am. St. Rep. 
 724, 93 Pac. 696, on the exceptions to the general territorial recognition of a 
 marriage valid where entered into. 
 
7 L.R.A. 50] L. R. A. CASES AS AUTHORITIES. 1224 
 
 Cited in notes (57 L.R.A. 368) on conflict of laws as to marriages as to mem- 
 bers of different races; (5 Eng. llul. Cas. 829, 830) on law governing validity of 
 marriage. 
 Removal of cause. 
 
 Cited in note (53 L. R. A. 573) on removal to protect Federal right. 
 Legislative power to forbid marriages. 
 
 Cited in note (2 L.R.A. (X.S.) 534) on legislative power to forbid marriage. 
 
 7 L. R. A. 55, LAWTON v. COMER, 40 Fed. 480. 
 Aavigability. 
 
 Cited in Mills v. United States, 12 L. R. A. 680, 46 Fed. 745, to point that the 
 Savannah is a navigable river. 
 
 Cited in notes (7 L. R. A. 673) on what are navigable rivers; (42 L. R. A- 
 325) on navigable waters; (48 L. ed. U. S. 74) on what are navigable waters of 
 the United States. 
 Limitation of liability. 
 
 Cited in notes (6 L. R. A. 850) on limiting liability of carrier; (10 L. R. A. 
 420) on contractual limitation of carrier's liability. 
 Congressional regulation of inter-state commerce. 
 
 Cited in Snead v. Central R. Co. 151 Fed. 616, holding employees of persons or 
 corporations engaged in interstate commerce such as those of an interstate rail- 
 road company are instrumentalities of commerce and subject to congressional 
 control. 
 
 7 L. R. A. 67, GARDNER v. TERRY, 99 Mo. 523, 12 S. W. 888. 
 Injunction to prevent cloud on title. 
 
 Cited in Verclin v. St. Louis, 131 Mo. 80. 33 S. W. 480, holding equity will 
 enjoin or cancel void paving tax bills casting cloud on title; Clifton v. Anderson, 
 40 Mo. App. 623, holding chancery may prevent sale under invalid decree which 
 would cast cloud on title to real estate; Skinker v. Heman, 64 Mo. App. 448, 
 holding equity will restrain issuance of invalid special tax bill Avhich would cast 
 a cloud on title; Sneathen v. Sneathen, 104 Mo. 207, 24 Am. St. Rep. 326, 16 
 S. W. 497, holding equitable jurisdiction to remove cloud not only remedial but 
 preventive; Bonsor v. Madison County, 204 Mo. 99, 102 S. W. 494, holding owner 
 in fee of a portion of a section of state school land may enjoin a sale thereof by 
 sheriff as state school land to protect his title from a cloud by such sale. 
 
 Cited in note (6 L.R.A. (N.S.) 511) on right to enjoin sale under power in 
 barred mortgage. 
 Adverse possession. 
 
 Cited in McRee v. Gardner, 131 Mo. 606, 33 S. W. 166, holding title through 
 adverse possession sufficient to authorize suit to remove cloud from title; Corn- 
 stock v. Eastwood, 108 Mo. 47, 18 S. W. 39, holding adverse possession for two 
 years of military bounty land vests title in occupant who may maintain eject- 
 ment. 
 
 Distinguished in De Bernardi v. McElroy, 110 Mo. 659, 19 S. W. 626, holding 
 intent to claim entire title to land necessary to put statute of limitations in 
 operation. 
 As between mortgagee and mortgagor. 
 
 Cited in St. Louis v. Priest, 103 Mo. 655, 15 S. W. 988, holding foreclosure 
 not barred by statute of limitations unless there has been adverse possession of 
 mortgaged property for requisite period; Combs v. Goldsworthy, 109 Mo. 160, 
 18 S. W. 1130, holding although notes given to secure mortgage are barred by/ 
 
1225 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 69 
 
 statute, there must be adverse possession of mortgaged premises to bar fore- 
 closure; Sherwood v. Baker, 105 Mo. 477, 24 Am. St. Rep. 399, 16 S. W. 938, 
 holding ten years' adverse possession by mortgagor necessary to bar foreclosure; 
 Chouteau v. Riddle, 110 Mo. 372, 19 S. W. 814, holding mortgagor in possession 
 does not hold adversely to mortgagee so long as relation of mortgagor and mort- 
 gagee exists; Ivy v. Yancey, 129 Mo. 507, 31 S. VV. 937, holding grantor in trust 
 deed does not hold adversely to trustee unless by acts and declarations he re- 
 pudiates deed of trust. 
 Suit involving: title. 
 
 Cited in Hanna v. South St. Joseph Land Co. 126 Mo. 10, 28 S. W. 652, holding 
 suit to rescind contract to purchase land and cancel deed of trust involves title 
 to real estate within jurisdiction of supreme court; Bryant v. Russell, 127 Mo. 
 426, 30 S. W. 107, holding title involved within jurisdiction of supreme court 
 where one party claims by purchase at execution sale and other claims right to 
 redeem; Kleimann v. Geiselmann, 45 Mo. App. 498, remanded on ground that 
 suit to declare deed of trust a subsisting lien and for its foreclosure does not 
 involve title. 
 Statute of limitations. 
 
 Cited in Menzel v. Hinton, 132 X. C. 665, 95 Am. St. Rep. 647, 44 S. E. 385, 
 "holding power of sale in mortgage not affected by statutory bar against fore- 
 closure. 
 
 7 L. R. A. 69, COUDERT v. COHX, 118 N. Y. 309, 16 Am. St. Rep. 761, 23 
 
 X. E. 298. 
 Tenancy nmler void lease. 
 
 Cited in Phelan v. Anderson, 118 Cal. 506, 50 Pac. 685, holding tenancy from 
 year to year implied where entry made on agricultural land under void parol 
 lease providing for annual rent; Gilfoyle v. Cahill, 18 Misc. 70, 41 X. Y. Supp. 
 29, holding tenancy from month to month implied from possession under void 
 oral lease for long term, rental payable monthly; Talamo v. Spitzmiller, 120 
 N. Y. 42, 8 L. R, A. 223, 17 Am. St. Rep. 607, 23 X. E. 980, holding party in 
 possession making no payments or promise to pay under void lease liable only for 
 use and occupation ; Unglish v. Marvin, 128 N. Y. 385. 23 X. E. 634, holding party 
 in possession under void agreement for joint occupancy with owner for term of 
 years, not entitled to damages for dispossession; Adams v. Cohoes, 127 N. Y. 181, 
 28 N. E. 25, holding tenant from year to year under void lease under no duty 
 to give notice of termination of tenancy; Butts v. Fox, 96 Mo. App. 441, 70 
 'S. W. 515, -holding tenant under lease void under statute of frauds not entitled 
 -to notice to quit at end of term ; Arbenz v. Exley, 52 W. Va. 479, 61 L. R. A. 958, 
 44 S. E. 149. holding written lease void under statute, admissible in evidence to 
 show a tenancy, its terms, and conditions; Falck v. Barlow, 110 Md. 164, 72 Atl. 
 678, 17 A. & E. Ann. Cas. 538, holding tenant to have an estate from year to 
 year where her husband, now deceased, entered under a ten year lease void under 
 statute" of frauds the lessor accepting a yearly rent for seven years thereunder; 
 Julian v. Berardini, 49 Misc. 120, 96 X. Y. Supp. 1064, holding the tenancy of 
 one entering under a void lease for five years rent payable monthly, is from 
 month to month: Ray v. Blackman, 120 Mo. App. 502, 97 S. W. 212, holding pro- 
 vision in a void parol lease for term longer than a year where lessee enters and 
 continues in possession, as to repairs reservation of rent, and termination of the 
 tenancy are valid and binding on the parties; Watkins v. Balch, 41 Wash. 312, 
 .3 L.R.A. (N.S.) 854, 83 Pac. 321, holding that where one enters under a void oral 
 
7 L.R.A. 69] L. R. A. CASES AS AUTHORITIES. 1226 
 
 lease he is merely a tenant from period to period as designated by the provision 
 for payment of rent. 
 
 Cited in note (26 L. R. A. 800) on compensation for use of premises where 
 lease invalid under statute of frauds. 
 Tenancy from year to year. 
 
 Cited in Johnson v. Doll, 11 Misc.. 347, 32 N. Y. Supp. 132, and Garrick v. 
 Menut, 41 N. Y. S. R. 470, 17 X. Y. Supp. 455, holding tenant holding over after 
 expiration of year's lease, liable for full rent for ensuing year; Kernochan v. 
 Wilkens, 3 App. Div. 600, 38 N. Y. Supp. 236, holding tenant holding over after 
 expiration of year under void lease for longer term, liable for following year's 
 rent. 
 
 Cited in note (15 Eng. Rul. Cas. 598) on person entering into possession under 
 lease within statute of frauds as a tenant from year to year. 
 Rigrbts and obligations of tenant holding? over. 
 
 Cited in note (15 Eng. Rul. Cas. 594) on rights and obligations of tenant hold- 
 ing over. 
 
 T L. R. A. 70, CHURCH OF ST. MONICA v. NEW YORK, 119 N. Y. 91, 23 
 
 N. E. 294. 
 Exemption from taxation. 
 
 Cited in People ex rel. Delta Kappa Epsilon Soc. v. Lawler, 74 App. Div. 557. 
 77 N. Y. Supp. 840, holding premises occupied by college society as boarding 
 place, with exception of society room, not exempt from taxation. 
 
 Cited in footnotes to Ramsey County v. Macalaster College, 18 L. R. A. 278, 
 which holds professors' residences on college grounds exempt but not unused land 
 in college tract; State, Singer Mfg. Co., Prosecutor, v. Heppenheimer, 32 L. R. A. 
 643, which holds company exempt from taxation under exemption of its shares. 
 
 Cited in note (12 L. R. A. 852) exemption from taxation does not exempt from 
 special assessment. 
 
 Distinguished in Shaarai Berocho v. New York, 28 Jones & S. 488, 46 N. Y. 
 S. R. 235, 18 N. Y. Supp. 792, on ground that religious society was incorporated 
 and holding its exemption not affected by fact that janitor resided on premises. 
 Statutory construction. 
 
 Cited in People ex rel. Young Men's Asso. v. Sayles, 32 App. Div. 201, 53 X. Y. 
 Supp. 67; People ex rel. Salvation Army v. Feitner, 33 Misc. 714, G8 X. Y. Supp. 
 338, to point thaj; statutes exempting religious and charitable corporations from 
 general taxation must be strictly construed. 
 
 7 L. R. A. 72, KRUEGER v. KRUEGER, 76 Tex. 178, 12 S. W. 1004. 
 Acknowledgment to take debt ont of statute of limitations. 
 
 Cited in Henry v. Roe, 83 Tex. 452, 18 S. W. 806, holding letter unqualifiedly 
 acknowledging existence of and promising to pay debt removes bar of limitations; 
 Moline Plow Co. v. Webb, 141 U. S. 627, 35 L. ed. 882, 12 Sup. Ct. Rep. 100, 
 raising, without deciding, question whether request to stay suit constitutes new 
 promise; Liberman v. Gurensky, 27 Wash. 420, 67 Pac. 998, holding promise to 
 pay at indefinite future time does not revive barred debt; Slaughter's Succession, 
 108 La. 494, 58 L.R.A. 409, footnote, p. 408, 32 So. 379, holding bar of limitation 
 not removed by expression of ability to pay debt, followed by part payment. 
 
 Cited in footnote to Kleis v. McGrath, 69 L.R.A. 260, which holds barred note 
 not revived by giving smaller note for interest due without referring to earlier 
 note. 
 
 Cited in notes (24 Am. St. Rep. 496) as to what acknowledgment will remove 
 
1227 L, R. A. CASES AS AUTHORITIES. [7 L.R.A. 73 
 
 bar of statute of limitations; (16 Eng. Rul. Cas. 176) on acknowledgment or part 
 payment taking debt out of statute of limitations. 
 
 7 L. R. A. 73, BURTON v. TUITE, 78 Mich. 363, 44 N. W. 282. 
 What are public records. 
 
 Cited in Aitcheson v. Huebner, 90 Mich. 645, 51 N. W. 634, holding state tax 
 land book public record; Burton v. Tuite, 80 Mich. 219, 7 L. R. A. 825, 45 N. W. 
 88, holding city treasurer's stub receipt books, from which data are transferred to 
 record books, public records; Tryon v. Pingree, 112 Mich. 347, 37 L. R. A. 226, 
 67 Am. St. Rep. 398, 70 X. W. 905. raising, without deciding, question whether 
 books of city fire commission public records; People v. Tomalty, 14 Cal. App. 231, 
 111 Pac. 513, to the point that tax sales books, kept by receiver of taxes are pub- 
 lic records, although there was no statute requiring such books to be kept; 
 Kalamazoo Gazette Co. v. Kalamazoo County Clerk, 148 Mich. 461, 111 N. W. 
 1070, holding marriage licenses and returns provided for by statute, are public 
 records open to inspection for all lawful purposes: Clement v. Graham, 78 Vt. 
 315, 63 Atl. 146, holding bills against the state and vouchers accompanying them 
 when filed in auditor's office are public records open to inspection by public. 
 
 Distinguished in Marriage License Docket, 4 Pa. Dist. R. 284, holding mar- 
 riage license docket not public record. 
 |{ iuiii to examine public records. 
 
 Cited in Barber v. West Jersey Title & Guaranty Co. 53 N. J. Eq. 160, 32 Atl. 
 222, holding abstract maker has right of access to public records but not to 
 make copies for purpose of setting up rival office; Day v. Button, 96 Mich. 602, 
 56 N. W. 3. holding abstract maker entitled to reasonable access to public records; 
 State ex rel. Colscott v. King, 154 Ind. 628, 57 N. E. 535, holding citizen and tax- 
 payer has right to examine county auditor's records; Marriage License Docket, 
 
 4 Pa. Dist. R. 166, holding citizen may inspect marriage license docket without 
 paying fee; Re Chambers, 44 Fed. 792. holding records of Federal courts open 
 to public examination free of charge; State ex rel. Davis v. McMillan, 49 Fla. 
 249. 38 So. 666, 6 A. & E. Ann. Cas. 537, holding the public and persons com- 
 piling abstract to have right to access to public records in clerks office without 
 payment of fee to clerk unless he assist in some special way in the pursuance of 
 the records; State ex rel. Nevada Title Guaranty & T. Co. v. Grimes, 29 Nev. 60, 
 
 5 L.R.A. (N.S.) 551, 124 Am. St. Rep. 883, 84 Pac. 1061, holding abstract com- 
 panies not entitled to the right of access to public records for purpose of compil- 
 ing a complete local abstract where they have no present or current interest; 
 State ex rel. Nevada Title Guaranty & T. Co. v. Grimes. 29 Nev. 62, 5 L.R.A. 
 (N.S.) 545, 124 Am. St. Rep. 883, 84 Pac. 1061, on right of county clerk to charge 
 fees where he does not assist in examination of public records; Com. v. Weaver, 14 
 Pa. Dist. R. 306, holding the right of a citizen to inspect liquor license petition 
 in his community without payment of fee to clerk may be obtained by mandamus. 
 
 Cited in notes (10 L. R. A. 212; 27 L. R. A. 82) on common right to inspect 
 public records; (64 L. R. A. 425. 426) on right of taxpayer to inspect books of 
 municipality; (124 Am. St. Rep. 914) on right of abstractors to have access to 
 public records; (47 L. ed. U. S. 741) on right of access to public records for 
 private abstract purposes. 
 
 Distinguished in Burton v. Reynolds, 110 Mich. 355, 68 N. W. 217, holding 
 examination by abstracter of files in action relating to land not compellable 
 where not shown necessary to employee's interests; Belt v. Prince George's County 
 Abstract Co. 73 Md. 294, 10 L. R. A. 214, 20 Atl. 982, holding title abstract 
 company cannot copy public records without paying fees. 
 
7 T..-R..A. 73] L. B. A. - - AS AUTHORITIES. 122 > 
 
 Whc-a * lie*. 
 
 Cited in, note (39 L.E.A.iX.S.) 812) on mandamus to compel continuous acts 
 or control general course of conduct. 
 
 7 K R- A. 77, PADUCAH LUMBER CO. v. PADUCAH WATER SUPPLY. OO. 
 
 89 Ky. 340. 25 Am. St. Rep. 536. 12 S. W. 554, 13 S. W. 249. 
 Uahilitr of cmter coMpuie* (or failure- of Are protection. 
 
 Followed in Gorrell T. Greensboro Water Supply Co. 124 X. C. 334. 46 L. R. A. 
 516. 70 Am. St. Rep. 598.. 32 S. E. 720; Planters' Oil Mill r. Monroe Waterworks 
 & Light Co. 52 La. Ann. 1251, 27 So. 684; Graves County Water Co. v. Ligon, 112 
 Ky. 780. 66 S. W. 725, holding water company liable to owner for burning of 
 property through failure of water supply; Hieronynues Bros. v. Bienville Water 
 Supply Co. 131 *1 454, 31 So. 31, assuming as unquestioned in case that damage 
 by fire may be shown to hare prosimately resulted from breach of contract to 
 supply water. 
 
 Approved in Springfield F. A M. Ins. Co. T. Graves County Water & Light Co. 
 120 Ky. 43, 85 S. W. 205, holding water company liable to private citizen for 
 loss occasioned by failure of fire protection- 
 
 Cited in Xjehau* Bros. Co. v. Contra Costa, Water Co. 159 Cal. 315, 36 L.R.A. 
 * XjS.jl 1052, 113 Pac. 375, holding that no implied contract for protection from 
 fire is to be inferred from ordinary relation between public distributor of water 
 and consumer; Mngge v. Tampa Waterworks Co. 52 Fla. 379, 6 LJLA.(X.S. i 1177, 
 42 So. 81, holding water company liable under tort action, to tax payers for 
 failure to provide fire protection as per contract with city giving it franchises and 
 privileges; Woodbury T. Tampa Waterworks Co. 57 Fla. 255, 21 L.R.A. \ - 
 1039, 49 So. 556, holding water company liable to private citizens for failure of 
 fire protection causing loss; Lexington Hydraulic & Mfg. Co. v. Oots. 119 Ky. 606, 
 84 S. W. 774, holding water company liable for failure of fire protection where 
 city has granted right to lay mains and has contracted for certain pressure, the 
 failure of which shall be ground for forfeiture of franchise ; Kenton Water Co. v. 
 Glenn, 141 Ky. 531, 133 S. W. 573, holding that inhabitant who has suffered loss 
 by breach of water company's contract may sue such company where it has con- 
 tracted with town to supply water to protect inhabitants against fire; Mil ford 
 v. Bangor R. t Electric Co. 104 Me. 246, 71 AtL 759, holding water company 
 liable to city for failure to supply fire protection under contract expressly calling 
 for the provision of apparatus the lack of which caused the loss; Mil ford v. 
 Bangor R. & Electric Co. 106 Me. 324, 30 LJUL(XJSL) 531, 76 Atl. 696, 20 Ann. 
 Cas. 622, holding that water company contracting to furnish water for fire pro- 
 tection is not liable for municipal property burned, because in adequate supply, 
 in absence of express undertaking to furnish protection to such property; Ger- 
 man Alliance Ins. Co. v. Home Water Supply Co. L.R.A.(X.S.) , 99 C. C. A. 
 258, 174 Fed. 766, on recovery by private citizen for loss occasioned by water 
 companies failure to provide fire protection; Lntz v. Tahleqnah Water Co. 29 
 Okla. 172, 36 L.R.A.(X.SJ 570, 118 Pac. 128, holding that taxpayer cannot main- 
 tain action against water company to recover damage by fire sustained by him 
 because of failure of company to perform contract with municipality to furnish 
 water to extinguish fire. 
 
 Cited in footnotes to Eaton T. Fairbury Waterworks Co. 21 L. R. A. 653, which 
 denies water company's liability for destruction of property by failure of water 
 supply; Mott v. Cherryvale Water a. Mfg. Co. 15 L. R. A. 375, which holds water 
 company not liable to citizen for burning of property through failure to supply 
 water. 
 
 Cited in notes (23 LR.A. 150) on liability for loss by fire due to lack of 
 
:::.- L. R. A. CASES AS AUTHORITIES. [7 T., 4 37 
 
 adequate water supply: OS Am. St. Rep. 380; 81 Am. St. Rep. 483; 21 L.R. 4. 
 fKJSL) 1033) OB water company $ liability for prwfwiy owner* loss by five 
 from breach of contract with municipality ; ((6 Bag. RuL Cas. 624| on damages 
 recoverable for breach of contract to furnish water for fire protection. 
 
 DiAngmshed m Boston Safe Deposit & T. Co, T. Salem Water COL 94 FL 240; 
 Stone T. rnkmtora Water Co. 16 Pa. COL OL 330, 13 Lane. L. Rev. 156, 4 Pa. 
 DistL R- 432; House T. Houston Waterworks Co. 88 Tex. 239, 28 L, R. A. 333, 
 31 & W. 179; Fit** T. Seymour Water Co. 139 lad. 220, 47 Am. St. Rep. 2% 
 37 X. K 982; Eaton T. Fairbnry Waterworks Co. 37 Xeb. 552. 21 L. R. A. 655, 4O 
 Am. St. Rep. 51ft. 56 X. W. 201*; Bosh T. Artesiam Hot & Cold Water Co. 4 Idaho, 
 621. 95 Am. St. Rep. 161, 43 Fae. 69, holding property owner cannot recover 
 froam water company for failure to furnish fire protectiaB stipulated in contract. 
 or franchise: Oaah City T. Oaah Water & Inprav. COL 142 CaL 179, 64 L. R. 
 A. 235, 75 Pae. 173. hcMra^r water company mot liable to town for loss by fire 
 through failure of water supply-. HOB* T. Presipje Isle Water Co. 104 Me. 231, 
 21 L.RJMXJSL)) 1028, 71 AtL 769; Lowejoy T. BeaaoBer Waterworks Co. 146 
 Ala. 380, 6 LJLA.vXJS.it 431. 41 So. 76. 9 A. & EL Ann. Cas. 1068, holda^ 
 
 resident of city cannot sue waterworks coampany for fire loss canoed by faUme to 
 supply water as per contract with the dry; Hunt Bros. Co. T. San Loreum Water 
 Co. 150 CaL 54. 7 LR-A.fX.J5.) 915, 87 Par. 1093, holding recovery for damages 
 from lose caused by breach of contract to furnish water and fire protection nay 
 not be had where the system called for in contract has not been installed., the 
 contract not stating time for installation. 
 
 Disapproved in Howsmon T. Trenton Water Co. 119 Mo. 315, 23 L. R. A. 152, 
 41 Am. St. Rep, 654, 24 S. W. 784, hoMing atom cannot recowr on water com- 
 panT"s agreement with town to be liable for ffaHhai* to supply <aHK *<( fire pro- 
 tection; Britton T. Green Bay A F. H. Waterworks Co. 81 WKL 58, 2S Ana. St. 
 Rep. 856, 51 X. W. 84, and Xkhol T. HunttingtoB Water Co. 53 W. Ta. 35, 44 
 S. C, 290, holding failure to supply sufficient water to extinguish fires does nnt 
 render company liable to individuals:: HoUoway r. Marau Gaslight A Water Ca. 
 132 Ga. 395. 64 S. EL 330; Peek T. Sterling Water Co. US HL App. 536; ADen 
 & C. Mfg. Co. T. ShreTeport Waterworks Co. 113 La. 1112, 68 T^R^A, 660, 104 
 Am. St. Rep. 525. 37 So. 980, 2 A. Jfc EL Ann. Cas. 471; Metropolitan Trust Co. T. 
 Topeka Water Co. 132 Fed. 7O4. hohling breach of contract with city not action- 
 able by citizen: Greenville Water Co. T. Beekham, 55 Tex. Civ. App. 92, 118 SL 
 W. 889, holding that property owner cannot hold water company fiahfe for loss 
 by fire because of breach of its contract with city. 
 
 RiSTht *f t kird n t* we **mtr*rt <* CM- Bte VnM-Hf . " 
 
 Cited in Hall T. Alford, 105 Ky. 666. 49 S. W. 444, holding action maintainable 
 by subcontractor upon contract of contractor for his benefit with owner; Lons- 
 Tille & X. R. Co. T, Schmidt, 112 Ky. 723, 66 S. W. 629, holding leee fiable 
 to mortgage bondholders for breach of conditions of lease to return road in good 
 repair: Blakeiey T. Adams. 113 Kir. 396, 68 S. W. 393, holding lien reserved in 
 conveyance of and for benefit, of surety of grantee, enforceable by such surety; 
 Peters v. Jackson, 50 W. Va. 650, 57 L R. A. 431. 88 Am, St. Rep. 909, 41 S. EL 
 190, holding druggist liable to third person for injuries resulting from druggistls 
 mistake in selling poisonous drug for harmless medicine; Albin Co. v. Com. 
 I* Ky. 301, 1O8 S. W. 299. holding state may compel payment to it of money 
 paid a bonding company by bonded person, to indemnify company against a debt 
 it has guaranteed to state: Cumberland Teleph. ft Tdeg. Co. T. Cartwr^ht 
 Teleph. Co. 128 Ky. 405, 108 S. W. 875, holding owner of private wire may compel 
 connection with telephone exchange under prariskui in frane^tine. 
 
 Cited in notes 25 L R. A. 2i ) on right of third person to sue 
 
7 L.R.A. 77] L. R. A. CASES AS AUTHORITIES. 1230 
 
 made for his benefit; (64 L. R. A. 59", ) on third person for whose benefit contract 
 is made as real party in interest within the meaning of statutes defining the 
 party by whom an action may be brought; (39 Am. St. Rep. 533; 71 Am. St. 
 Rep. 184, 190, 191, 196) on right of third person to sue on contract made for his 
 benefit; (111 Am. St. Rep. 705) on manufacturer's liability to third persons. 
 
 Distinguished in Mott v. Cherryville Water & Mfg. Co. 48 Kan. 16, 15 L. R. A. 
 376, 30 Am. St. Rep. 267, 28 Pac. 989, holding citizen cannot maintain action 
 on water company's contract with city to pay damages to any citizen through 
 failure to supply fire protection; Peters v. Johnson, 50 W. Va. 650, 57 L. R. A. 
 431, 88 Am. St. Rep. 909, 41 S. E. 190, holding only parties to sale of medicine 
 can sue for damages for breach of contract. 
 
 Limited in Weatherly v. Capital City Water Co. 115 Ala. 174, 22 So. 140, hold- 
 ing citizen cannot have receiver appointed to carry out corporation's contract to 
 supply city and its inhabitants with water. 
 
 Criticized in Lancaster use of Penn Iron Co. v. Frescoln, 16 Lane. L. Rev. 76, 
 22 Pa. Co. Ct. 229, holding material men may recover on contractor's bond to 
 city to pay for materials. 
 Measure of damages for breach of contract. 
 
 Cited in note (29 Am. St. Rep. 729) on measure of damages for breach of con- 
 tracts. 
 
 7 L. R. A. 81, KENTON INS. CO. v. WIGGINTON, 89 Ky. 330, 12 S. W. 668. 
 Insurance Proof of loss. 
 
 Cited in Caledonian Ins. Co. v. Cooke, 101 Ky. 416, 41 S. W. 279, holding proof 
 of loss waived by insurance company's admission of some liability, and arbitration 
 as to amount of loss; German- American Ins. Co. v. Xorris, 100 Ky. 36, 66 Am. 
 St. Rep. 324, 37 S. W. 267, holding insured not required to furnish proofs of loss 
 where general agent denies liability. 
 
 Cited in notes (8 L. R. A. 78) on waiver of proofs of loss; (11 L. R. A. 599) 
 on waiver of conditions by refusal to pay loss; (18 L. R. A. 85) on forfeiture of 
 insurance by failure to furnish proofs of loss within stipulated time; (8 L. R. A. 
 76) on objections to statement of loss. 
 What are material misrepresentations. 
 
 Cited in Carrollton Furniture Mfg. Co. v. American Credit Indemnity Co. 52 
 C. C. A. 673, 115 Fed. 79, holding misstatement of past losses in application for 
 insurance against losses on sales, material misrepresentations avoiding policy: 
 Lancashire Ins. Co. v. Monroe, 101 Ky. 20, 39 S. W. 434, holding existence of 
 mortgage does not contradict representation of sole and unconditional owner- 
 ship. 
 
 Cited in notes (38 L.R.A. (N.S.) 429) on want of title to land where insured 
 is sole and absolute owner of building; (13 Eng. Rul. Cas. 334) on necessity of 
 specifying in policy the interest of the assured. 
 Parol evidence of mistake. 
 
 Cited in note (6 L. R. A. 838) on parol evidence in case of mistake. 
 
 7 L. R. A. 84, MERWIN v. AUSTIN. 58 Conn. 22, 18 Atl. 1029. 
 Effect of insolvency on right of set-off. 
 
 Cited in Carroll v. Weaver, 65 Conn. 81, 31 Atl. 489, holding ship owner's pay- 
 ment of ship builder's order accepted before insolvency of builder, properly set 
 off against debt to builder; St. Paul & M. Trust Co. v. Leek, 57 Minn. 92, 47 Am. 
 St. Rep. 576, 58 N. W. 826, holding debtor's equitable set-off unaffected by assign- 
 ment; Salladin v. Mitchell, 42 Neb. 863, 61 N. W. 127, holding right of set-off 
 
1231 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 87 
 
 unaffected by assignment in insolvency; Momsen v. Xoyes, 105 Wis. 567, 81 
 X. \Y. 860, holding liability as surety may be set off against assignor's claim 
 against surety; Craighead v. Swartz, 219 Pa. 153, 67 Atl. 1003, holding surety 
 in the insolvency of principal may retain money of principal in his hands to the 
 amount of secured indebtedness. 
 
 Cited in notes (9 L. R. A. 108) on set-off of unliquidated cross demand; (13 
 L. R. A. 233) on surety's right to set off joint indebtedness where insolvency 
 exists; (17 L. R. A. 461) on effect of immaturity of claim at time insolvency 
 occurs on right of set-off; (47 Am. St. Rep. 143) on set-off by or against bank 
 receiver; (47 Am. St. Rep. 583, 593) on equitable set-off after insolvency. 
 
 Distinguished and disapproved in Huse v. Ames, 104 Mo. 99, 15 S. W. 965, 
 holding surety cannot set off payments after assignment, although on debts past 
 due at time of assignment. 
 K IK lit of insolvent'* representative. 
 
 Cited in Carroll v. Weaver, 65 Conn. 81, 31 Atl. 489, holding as general rule 
 trustee takes insolvent estate with its burdens and equities; Re Wilcox & H. Go. 
 70 Conn. 231, 39 Atl. 163, holding receiver of insolvent may also represent cred- 
 itors; Woodbury's Appeal, 70 Conn. 457, 39 Atl. 791, holding trustee in in- 
 solvency to a limited extent, representative of debtor and creditors; Xewton Sav. 
 Bank v. Lawrence, 71 Conn. 368, 42 Atl. 225 (dissenting opinion), majority hold- 
 ing insolvency trustee takes insolvent's land unaffected by unrecorded mort- 
 gage; Central Trust Co. v. Worcester Cycle Mfg. Co. 128 Fed. 490, holding right 
 of attaching creditor to proceeds of property surrendered to mortgage receiver 
 under stipulation preserving rights, superior to that of subsequent trustee in in- 
 solvency. 
 H iiilu to contribution. 
 
 Cited in notes (9 L.R.A. 227) on subrogation of surety on payment of claim; 
 (68 L.R.A. 514) on extinction of judgments against principals by sureties' pay- 
 ment; (12 Eng. Rul. Cas. 840) on right of person whose liability is ascertained 
 to judgment for indemnity or contribution. 
 
 7 L. R. A. 87, HODGES v. ROWING, 58 Conn. 12, 18 Atl. 979. 
 Description of property. 
 
 Cited in Moayon v. Moayon, 1 14 Ky. 873, 60 L.R.A. 423, 102 Am. St. Rep. 303, 
 72 S. W. 33, holding description covering all grantor's property acquired by will 
 or otherwise and then owned by him, sufficient to uphold contract to convey; 
 Howard v. Adkins, 167 Ind. 188, 78 X. E. 665, holding parol evidence in connec- 
 tion with surrounding circumstances admissible to complete a contract governed 
 by statute of frauds, as to the description of property; Bates v. Harris, 144 
 Ky. 401, 36 L.R.A. (N.S.) 157, 138 S. W. 276, holding that contract for sale of 
 land describing property as "her muddy creek farm, embracing 113 acres" is 
 not void for insufficiency of description; Wilcox v. Sonka, 137 Mo. App. 56, 119 
 S. W. 445, holding "my farm of 160 acres in Lynn county, Tex." a description 
 sufficient to satisfy statute of frauds. 
 Remedy at law as bar to equitable relief. 
 
 Cited in Sabin v. Anderson, 31 Or. 495, 49 Pac. 870, holding attachment or 
 garnishment not adequate remedy precluding bill in equity to discover assets 
 fraudulently concealed; Lockctt v. Robinson, 31 Fla. 138, 20 L. R. A. 68, 12 So. 
 649, holding claimant of lien without adequate remedy in law to reach proceeds 
 of land sold under agreement with owner: Morgan v. Eaton, 59 Fla. 565, 138 
 Am. St. Rep. 167, 52 So. 305, holding that suit by vendor for specific perform- 
 ance of land contract cannot be defeated because there is remedy at law. 
 
7 L.R.A. 87] L. R. A. CASES AS AUTHORITIES. 1232 
 
 Cited in notes (11 L. R. A. 69) on jurisdiction in equity where remedy at 
 law exists; (8 L. R. A. 626) on right to specific performance where adequate 
 remedy at law; (36 L. ed. U. S. 84) on what remedy at law will prevent remedy 
 in equity. 
 Specific performance. 
 
 Cited in Andrews v. Babcock, 63 Conn. 116, 26-Atl. 715, holding vendor on same 
 footing with vendee as to specific performance of contract for sale of land; 
 Freeman v. Paulson, 107 Minn. 67, 131 Am. St. Rep. 438, 119 N. W. 651, holding 
 vendor of land under executory contract of sale may have specific performance 
 against vendee's equitable interest by virtue of the executory contract. 
 
 Cited in footnote to Atchison, T. & S. F. R. Co. v. Chicago & W. I. R. Co. 35 
 L. R. A. 167, which refuses to require payment of interest not provided for as 
 condition of specific performance of contract. 
 
 Cited in note (10 L. R. A. 127) as to when doctrine of laches cannot be in- 
 voked. 
 Remedy for breach of land sale contract. 
 
 Cited in Prichard v. Mulhall, 127 Iowa, 548, 103 N. W. 774, 4 A. & E. Ann. 
 Cas. 789, holding tender of deed by vendor not to pass title and that his remedy 
 for breach of executory contract for sale of land is not an action for contract 
 price but specific performance or damages at law. 
 
 7 L. R. A. 90, HESS v. LOWREY, 122 Ind. 225, 17 Am. St. Rep. 355, 23 N. E. 156. 
 Liability of partners for torts of others. 
 
 Cited in notes (37 L. R. A. 834) on liability of physician or surgeon for acts 
 of others; (51 L.R.A. 495) on liability of partnership for torts; (67 Am. St. 
 Rep. 38, 41) on liability of one partner for tortious acts of another; (93 Am. 
 St. Rep. 666) on liability of physicians and surgeons for negligence and mal- 
 practice of partners. 
 Evidence of transaction \vith deceased partner. 
 
 Disapproved in effect in Bay View Brewing Co. v. Grubb, 31 Wash. 43, 71 
 Pac. 553, holding evidence of transaction between party in interest and deceased 
 member of partnership inadmissible. 
 "Waiver of right of action ex contract 11. 
 
 Cited in Rauh v. Stevens, 21 Ind. App. 651, 52 N. E. 997, holding right of 
 action ex contractu may be waived for remedy ex delicto; Lane v. Boicourt. 128 
 Ind. 421, 25 Am. St. Rep. 442, 27 N. E. 1111, holding, in action against physician 
 for malpractice, plaintiff may waive tort. 
 Abatement for nonjoinder. 
 
 Cited in Alexander v. Collins, 2 Ind. App. 179, 28 N. E. 190, and Boseker v. 
 Chamberlain, 160 Ind. 117, 66 N. E. 448, holding plea in abatement for non- 
 joinder bad if it does not allege that parties are living and subject to process 
 of court. 
 Snrvival of actions in tort. 
 
 Approved in Hedekin v. Gillespie, 33 Ind. App. 653, 72 N. E. 143, holding 
 an action in tort or contract will survive death of the tortfeasor or obligor 
 where the cause of action is based on injury to estate as distinguished from 
 mere nonpecuniary personal injury. 
 
 Cited in Hamilton v. Jones, 125 Ind. 177, 25 N. E. 192, holding right of action 
 for wrong does not survive death of wrongdoer; Feary v. Hamilton, 140 Ind. 
 52, 39 N. E. 516, holding action survives only where injury affects primarily and 
 principally property rights; Rice v. Van Why, 49 Colo. 35, 111 Pac. 599, holding 
 that in suit against firm for negligent death of partner, does not work abate- 
 
1233 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 90 
 
 ment nor render amendment of complaint necessary; Newman v. Gates, 165 Ind. 
 174, 72 N. E. 638, 6 A. & E. Ann. Gas. 649, holding cause of action for breach 
 of duty by attorney causing serious injury to client survives his death. 
 
 Cited in footnote to Perkins v. Stein, 20 L. R. A. 8G2, which holds survivable 
 action for negligently driving over person. 
 
 Cited in note (2 Eng. Rul. Cas. 17) on abatement of action for tort by 
 death of wrongdoer. 
 
 Distinguished in Melvin ex rel. McVey v. Emns, 48 Mo. App. 427, holding ac- 
 tion for assault abates against surety on death of principal. 
 Action for tort against survivor of partnership. 
 
 Followed in Robertson v. Ford, 164 Ind. 539, 74 N. E. 1, holding that where 
 a partner dies after rendition of judgment, for a tort committed by the partners, 
 the surviving partner may be subjected to an appeal. 
 Action quasi ex contractn for damages. 
 
 Cited in Holt Ice & Cold Storage Co. v. Arthur Jordan Co. 25 Ind. App. 319, 
 67 N. E. 575, holding action against storage company for damages to butter, 
 ex contractu. 
 Exhibition of injuries to jury. 
 
 Cited in South Bend v. Turner, 156 Ind. 427, 54 L. R. A. 400, 83 Am. St. Rep. 
 200, 60 N. E. 271, holding weapons, clothing, and wounds may be exhibited to 
 jury; Arkansas River Packet Co. v. Hobbs, 105 Tenn. 38, 58 S. W. 278, uphold- 
 ing exhibition and exercise of injured leg before jury. 
 Pofver of court to order medical or surgical examination. 
 
 Cited in Terre Haute & I. R. Co. v. Brunker, 128 Ind. 554, 26 N. E. 178, hold- 
 ing motion to compel medical examination on second trial after plaintiff had 
 rested, properly overruled; South Bend v. Turner, 156 Ind. 431, 54 L. R. A. 400, 
 83 Am. St. Rep. 200, 60 N. E. 271, holding abuse of court's discretionary powe* 
 to order physical examination of injured plaintiff, reviewable; Cook BreAving Co. 
 v. Ball, 22 Ind. App. 663, 52 X. E. 1002, holding injured plaintiff may refuse to 
 submit to medical examination without giving reasons therefor; Graves v. Bat- 
 tle Creek, 95 Mich. 270, 19 L. R. A. 642, 35 Am. St. Rep. 561, 54 N. W. 757, 
 upholding court's power to compel injured plaintiff to submit to physical exam- 
 ination before the jury; Chicago, B. & Q. R. Co. v. Krayenbuhl, 70 Xeb. 770, 
 98 X. W. 44, holding it not to be prejudicial to exhibit injuries and allow 
 plaintiff to sit near jury and weep when reference is made to them; May v. 
 Northern P. R. Co. 32 Mont. 529, 70 L.R.A. 114, 81 Pac. 328, 4 A. & E. Ann. 
 Cas. 605, denying right of court to order compulsory physical examination by 
 court physicians in personal injury case in absence of statutory authority; John- 
 ston v. Southern P. R. Co. 150 Cal. 542, 89 Pac. 348, 11 Ann. Cas. 841, holding 
 court may order physical examination in presence of plaintiffs' and defendants' 
 physicians where nature and extent of injury complained of may be ascertained 
 by such examination and plaintiff offers testimony of his physicians. 
 
 Cited in footnote to Alabama G. S. R. Co. v. Hill, 9 L. R. A. 442, which hold 
 delicacy and refinement of feeling not ground for refusing to order surgical 
 examination of plaintiff. 
 
 Cited in notes (14 L.R.A. 468) on power to compel plaintiff to submit to 
 physical examination; (68 Am. St. Rep. 245, 249) on physical examination 
 of parties by order of court; (15 L.R.A. (X.S.) 664) on refusal of order for 
 physical examination as abuse of discretion. 
 
 Disapproved in Pennsylvania Co. v. Xewmeyer, 129 Ind. 410, 28 N. E. 860, 
 holding in absence of statute party not obliged to submit to physical examina- 
 tion: Union P. R. Co. v. Botsford, 141 U. S. 256, 35 L. ed. 739, 11 Sup. Ct. 
 L.R.A. Au. Vol. I. 78. 
 
7 L.R.A. 90] L. R. A. CASES AS AUTHORITIES. 1234 
 
 Rep. 1000, holding Federal court cannot order surgical examination of injured 
 
 plaintiff. 
 
 Use of text-books on examination of expert witnesses. 
 
 Cited in Byers v. Nashville, C. & St. L. R. Co. 94 Tenn. 351, 29 S. W. 128, and 
 Louisville, N. A. & C. R. Co. v. Howell, 147 Ind. 274, 45 N. E. 584, upholding 
 reading of statements from writers of repute, on cross-examination to test ex- 
 pert's knowledge; Shover v. Myrick, 4 Ind. App. 16, 30 N. E. 207, holding scien- 
 tific books may be referred to by experts to refresh their recollection; Butler v. 
 South Carolina & G. Extension R. Co. 130 N. C. 20, 40 S. E. 770, holding that 
 expert witness cannot be discredited by reading opposite opinion from text- 
 book and asking him whether it is correct; State v. Blackburn, 136 Iowa, 748, 
 114 N. W. 531, holding teachings of medical text books may not be assumed 
 for purpose of impeaching witness on cross examination where he has not relied 
 on any theory therein contained in his direct examination; MacDonald v. Metro- 
 politan Street R. Co. 219 Mo. 493, 118 S. W. 78, 16 A. & E. Ann. Cas. 810, 
 holding that under instruction to jury, witnesses who base their -testimony on 
 text books may be cross-examined by comparing their statements with those 
 in books and may be asked if they concur in the text read from the books ; 
 Gulf, C. & S. F. R. Co. v. Farmer, 102 Tex. 240, 115 S. W. 260, holding extracts 
 from medical authorities admissible in cross-examination of medical expert to 
 test his knowledge of the subject provided the author from whom the extract 
 is taken be named. 
 
 Cited in note (40 L. R. A. 567) on scientific books and treatises as evidence. 
 Instructions as to credibility of witnesses. 
 
 Cited in Mendenhall v. Stewart, 18 Ind. App. 271, 47 N. E. 943, holding in- 
 struction properly qualified, as to witness's interest as bearing upon credibility, 
 not erroneous. 
 Conviction as bar to further prosecution. 
 
 Cited in footnote to People v. McDaniels, 59 L. R. A. 578, which holds prosecu- 
 tion for assault to commit murder barred by conviction of battery for same 
 acts. 
 
 7 L. R. A. 93, PICKLE v. PEOPLE'S NAT. BANK, 88 Tenn. 380, 17 Am. St 
 
 Rep. 900, 12 S. W. 919. 
 Right of payee to sue drawee upon acceptance. 
 
 Cited in Cincinnati, H. & D. R. Co. v. Metropolitan Nat. Bank, 54 Ohio St. 
 68, 31 L. R. A. 655, 56 Am. St. Rep. 700, 42 N. E. 700, holding, without accept- 
 ance, holder of check cannot compel payment from drawee bank. 
 
 Cited in note 10 Eng. Rul. Cas. 425, on necessity of acceptance of check to 
 action by payee against bank. 
 
 Disapproved in J. N. Houston Grocer Co. v. Farmers Bank, 71 Mo. App. 136, 
 holding payee of checks cannot maintain action against drawee for payment on 
 forged indorsements. 
 Proof of acceptance. 
 
 Cited in 'Jackson v. National Bank, 92 Tenn. 158, 18 L. R. A. 607, 36 Am. St. 
 Rep. 81, 20 S. W. 802, holding paying to unauthorized person and charging to 
 drawer's account sufficient proof of acceptance. 
 
 Cited in note (17 L.R.A.fN.S.) 1268) on detention of draft or check by 
 drawee as acceptance. 
 Payment to nnauthorized person. 
 
 Cited in Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 111. 164, 59 
 L. R. A. 663, 93 Am. St. Rep. 113, 65 N. E. 136, and Jackson v. National Bank, 
 
1235 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 99 
 
 92 Term. 158, 18 L. R. A. 667, 36 Am. St. Rep. 81, 20 S. W. 802, holding 
 drawee bank responsible unless paying check to payee or upon genuine indorse- 
 ment; Western U. Teleg. Co. v. Bi-Metallic Bank, 17 Colo. App. 233, 68 Pac. 
 115, holding bank not relieved from liability for payment of check to person 
 of same name as payee by delivery of check by drawer to such person; Pease 
 v. State Nat. Bank, 114 Tenn. 695, 88 S. W. 172, holding that the drawer of 
 an ordinary check may before acceptance by drawee, stop payment thereon and 
 a payment after such notice is at peril of bank; Knoxville Water Co. v. East 
 Tennessee Nat. Bank, 123 Tenn. 374, 131 S. W. 447, holding that bank paying 
 check upon forged indorsement is liable to payee. 
 
 Cited in note (17 Am. St. Rep. 898) on rights and remedies of parties where 
 forged check has been paid. 
 
 Distinguished in Unaka Nat. Bank v. Butler, 113 Tenn. 578, 83 S. W. 655, 
 holding bank authorized to pay bona fide purchaser of check which was indorsed 
 in blank and lost by payee. 
 Receiving: paper for collection. 
 
 Cited in note (7 L. R. A. 845) on ownership of paper indorsed in blank. 
 Power of agents to indorse negotiable paper. 
 
 Cited in note (27 L. R. A. 401) on power of agents to indorse negotiable 
 paper. 
 
 7 L. R. A. 96, COLE v. HAND, 88 Tenn. 400, 12 S. W. 922. 
 
 Who entitled to benefit of statute giving wage-earners preference* 
 
 Cited in Pullis Bros. Iron Co. v. Boemler, 91 Mo. App. 92, holding superin- 
 tendent of iron company not within statute according employees of insolvent cor- 
 porations priority of payment. 
 
 Cited in note (18 L. R. A. 309) on who are laborers, employees, or servants 
 within meaning of statutes giving them preference. 
 .Statutes imposing director's liability Ho\v construed. 
 
 Cited in Tradesman Pub. Co. v. Knoxville Car Wheel Co. 95 Tenn. 660, 31 
 L. R. A. 601, 49 Am. St. Rep. 943, 32 S. W. 1097, holding statutes making di- 
 rectors of insolvent corporations liable, strictly construed. 
 
 7 L. R. A. 99, ATTY. GEN. v. DETROIT, 78 Mich. 545, 18 Am. St. Rep. 458, 
 
 44 N. W. 388. 
 Citizenship. 
 
 Cited in Boyd v. Nebraska, 143 U. S. 168, 36 L. ed. 112, 12 Sup. Ct. Rep. 
 375, Reversing 31 Neb. 762, 48 N. W. 739, holding resident of Nebraska when 
 taken into Union citizen of United States, although his father had not been nat- 
 uralized. 
 
 Cited in note (8 L. R. A. 337) on possession of political rights not essential 
 to citizenship. 
 Regulation as to registration of voters. 
 
 Cited in Morris v. Powell. 125 Ind. 293, 9 L. R. A. 330. 25 N. E. 221, holding 
 law requiring certain persons to be registered in order to vote, without requir- 
 ing others to be, unconstitutional: People ex rel. Phillips v. Straasheim, 240 
 111. 200. 22 L.R.A.iN.S. i m*. SS N. E. S21, holding a 30-day residence quali- 
 fication to be defeated by failure to. provide for registration within that time 
 where registration is made a condition precedent to right to vote; Coggeshall 
 v. Des Moines. 138 Iowa. 741. 128 Am. St. Rep. 221. 117 N. W. 309, doubting 
 whether regulation as to registration of voters by legislation may discriminate 
 ^between classes of full voters. 
 
7 L.R.A. 99] L. R. A. CASES AS AUTHORITIES. 1236; 
 
 Cited in footnote to Barret v. Taylor, 36 L. R. A. 129, upholding right to- 
 have name registered as voter of unnaturalized minor who becomes qualified vot- 
 er before revision of registry. 
 
 Cited in notes (8 L. R. A. 338) on qualification of voters registration law; 
 (10 L. R. A. 226) on election law; registration; (25 L. R. A. 481, 485) on how 
 far right to vote is absolute; (45 L. ed. U. S. 215, 216, 217) on validity of 
 registration laws. 
 Limit of power of legislature to regulate elective franchise. 
 
 Cited in Ferguson v. Allen, 7 Utah, 273, 26 Pac. 570; Detroit v. Rush, 82 Mich. 
 538, 10 L. R. A. 173, 46 N. W. 951, holding legislature may regulate but not 
 destroy enjoyment of elective franchise; Todd v. Election Comrs. 104 Mich.. 
 482, 29 L. R. A. 334, 64 N. W. 496, upholding act forbidding placing of name 
 of any candidate in more than one column on official ballot ; State ex rel. Brown, 
 v. McMillan, 108 Mo. 163, 18 S. W. 784, holding Australian ballot law con- 
 stitutional; Mills v. Green, 67 Fed. 831, holding registration law, abridging 
 right to vote, unconstitutional; Slaymaker v. Phillips, 5 Wyo. 497, 47 L. R. A. 
 858, 42 Pac. 1049 (dissenting opinion) majority upholding act making void, 
 ballots not properly indorsed by election officers; Butler v. Ellerbe, 44 S. C. 286, 
 22 S. E. 425 (dissenting opinion) as to constitutionality of act requiring regis- 
 tration of voters; Choisser v. York, 211 111. 72, 71 X. E. 940 (dissenting opin- 
 ion), on the inability to legislate away the constitutional right to vote and its 
 incidents; Solon v. State, 54 Tex. Crim. Rep. 274, 114 S. W. 349, on the nature and 
 derivation of the right to vote and its subjection to modification by legislature. 
 
 Cited in footnotes to Brewer v. McClelland, 17 L.R.A. 845, which holds stat- 
 ute requiring notice of claim to be legal voter from p rsons residing less than 
 six months in county void; Pope v. Williams, 66 L.R.A. 398, which holds that 
 legislature may require person coming into state to take up residence to evidence 
 such fact In public record to entitle him to vote. 
 
 Distinguished in Atty. Gen. ex rel. Reynolds v. May. 99 Mich. 545, 25 L. R. A. 
 328, 58 N. W. 483, upholding regulations to preserve purity of elections, although 
 resulting in some inconvenience to voters. 
 "When whole act, void in part, must fall. 
 
 Cited in Butler v. Ellerbe, 44 S. C. 293, 22 S. E. 425 (dissenting opinion) 
 as to invalidity of entire act part of which is unconstitutional. 
 
 7 L. R. A. 105, TERRITORY ex rel. CHOTEAU COUNTY v. CASCADE COUNTY, 
 
 8 Mont. 396, 20 Pac. 809. 
 Mandamus. 
 
 Cited in footnote to State ex rel. Fleming v. Crawford, 14 L. R. A. 253, which 
 grants mandamus to compel secretary of state to seal appointment of United 
 States senator. 
 
 Cited in note ( 11 L. R. A. 763) on mandamus to control executive discretion. 
 Liability of qounties for torts and negligence. 
 
 Cited in note (39 L. R. A. 71) on liability of counties in actions for torts 
 and negligence. 
 
 7 L. R. A. Ill, WALKER v. VICKSBURG, S. & P. R. CO. 41 La. Ann. 795, 
 
 17 Am. St. Rep. 417, 6 So. 916. 
 Contributory negligence. 
 
 Cited in Bemiss v. New Orleans City & Lake R. Co. 47 La. Ann. 1675, 18 So. . 
 711, holding passenger going from one car to another while train is moving can- 
 not recover if thrown off. 
 
 Cited in note (8 L. R. A. 674) on contributory negligence of passenger. 
 
1237 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 118 
 
 \ I ii.- !i i i iiii from moving ear. 
 
 Cited in Odom v. St. Louis S. W. R. Co. 45 La. Ann. 1203, 14 So. 734, 23 L. 
 R. A. 153, holding passenger carried beyond his station, jumping from moving 
 train, cannot recover; Burgin v. Richmond & D. R. Co. 115 N. C. 675, 20 S. E. 
 473, holding mere failure to stop does not justify passenger in leaping from 
 moving train; Chesapeake & O. R. Co. v. Paris (Chesapeake & O. R. Co. v. Bell) 
 111 Va. 58, 28 L.R.A.(X.S.) 773, 68 S. E. 398 (dissenting opinion), on alighting 
 from slowly moving train as contributory negligence. 
 
 Cited in notes (11 L. R. A. 367) on duty of carrier to assist in landing pas- 
 senger safely; (11 L. R. A. 396) on passenger alighting from moving train; 
 (13 L. R. A. 95) on duty of railway conductors in stopping and starting trains; 
 (21 L.R.A. 360) on injuries in getting on and off railroad trains; (22 Am. St. 
 Rep. 752) on negligence in boarding or alighting from moving train. 
 
 Distinguished in Brashear v. Houston, C. A. & N. R. Co. 47 La. Ann. 738, 
 28 L. R. A. 812, 49 Am. St. Rep. 382, 17 So. 260, upholding recovery where plain- 
 tiff not thrown from train by sudden jerk; Ober v. Crescent City R. Co. 44 La. 
 Ann. 1003, 32 Am. St. Rep. 366, 11 So. 818, holding it not negligence per se 
 to alight from moving horse car. 
 Duty of carrier to furnish safe stations and platforms. 
 
 Cited in footnotes to Delaware, L. & W. R. Co. v. Trautwein, 7 L. R. A. 435, 
 wMch holds carrier required to keep passageway at station though other pas- 
 sageway provided; Redigan v. Boston & M. R. Co. 14 L. R. A. 276, which denies 
 recovery to licensee falling through open trap door in station platform; Herr 
 man v. Great Northern R. Co. 57 L. R. A. 390, which holds railroad company 
 liable for injury to passenger from unsafe condition of depot premises leased 
 of union depot company or its receiver. 
 
 Cited in notes (11 L. R. A. 720) on carrier's duty of care for safety of pas- 
 senger; (16 L. R. A. 449) on regulations as to admission of passenger to train 
 house; (16 L. R. A. 593) on duty of carrier to maintain safe approach beyond its 
 own premises; (20 L. R. A. 527) as to whom railroads owed duty of keeping sta- 
 tion platforms safe. 
 
 7 L. R. A. 118, ODOM v. RIDDICK, 104 N. C. 515, 17 Am. St. Rep. 686, 10 S. E. 
 
 609. 
 Contracts -with insane persons. 
 
 Cited in French Lumbering Co. v. Theriault, 107 Wis. 642, 51 L. R. A. 916, 
 81 Am. St. Rep. 856, 83 N. W. 927, holding deed of insane person not under 
 guardianship voidable only; Chamblee v. Broughton, 120 N. C. 176, 27 S. E. 
 Ill, holding bona fide foreclosure purchaser without notice protected against 
 mortgagor's insanity; Creekmore v. Baxter, 121 N. C. 33, 27 S. E. 994, holding 
 equity will set aside contracts made with lunatics, with knowledge of lunacy: 
 Allred v. Smith, 135 X. C. 445. 65 L. R. A. 926, 47 S. E. 597, holding deed by one 
 non compos at time of execution to be voidable only; Reid v. Singer Mfg. Co. 
 128 Ky. 65, 129 Am. St. Rep. 295, 107 S. W. 310, on the common law rule that 
 insane person's contracts are not void but voidable; Sprinkle v. Wellborn, 140 
 N. C. 173, 3 L.R.A.(X.S.) 179, 111 Am. St. Rep. 827, 52 S. E. 666, on the 
 voidability only of insane person's contracts, not previously declared insane; 
 Beeson v. Smith, 149 N. C. 144, 62 S. E. 888, on the relief afforded to insane 
 persons from the results of their contracts; West v. Seaboard Air Line R. Co. 
 151 X. C. 235. 65 S. E. 979, holding that the undeclared insanity of a party 
 to a release from liability does not render it void of itself but voidable: Godwin 
 v. Parker, 152 X. C. 675, 68 S. E. 208, holding contract made with knowledge 
 of declared insanity of the other party is void for fraud; Chadwell v. Reed, 198 
 
7 L.H.A. 118] L. R. A. CASES AS AUTHORITIES. 1238 
 
 Mo. 379, 95 S. W. 227, holding that insanity to avoid a contract must be proved 
 by person asserting it, insanity raising a rebuttable presumption of invalidity 
 only; Maas v. Durmyer, 21 Okla, 444, 96 Pac. 591, holding a mortgagee for 
 value without notice takes a valid lien on the property of grantee from unde- 
 clared insane person. 
 
 Cited in notes (19 L. R. A. 492) on validity of deed made by insane person; 
 (36 L.R.A. 721, 723, 727) on presumption and burden of proof as to sanity; 
 (42 Am. St. Rep. 753) on civil liability of incompetent persons; (71 Am. St. 
 Rep. 433) on contracts of insane persons; (6 Eng. Rul. Cas. 76, 78) on validity 
 of contract by insane person; (16 Eng. Rul. Cas. 739) on lunacy disqualifying 
 person to act as a free agent, 
 lloim fide purchaser. 
 
 Cited in Cox v. Wall, 132 N. C. 737, 44 S. E. 635, holding burden to be upon 
 purchaser from fraudulent grantee to show valuable consideration and want of 
 notice. 
 Bona fide rights under voidable deed. 
 
 Cited in Phillips v. Buchanan Lumber Co. 151 N. C. 521, 66 S. E. 603, holding 
 that a purchaser for value from holder of deed obtained by fraud takes good 
 title where he has no notice of the fraud. 
 Placing? of parties In statn quo. 
 
 Cited in Cox v. Boyden, 153 N. C. 527, 69 S. E. 504, to the point that object 
 of rescission of contract is to place parties in same condition as if there had 
 been no change of condition by attempted contract. 
 
 7 L. R. A. 120, KELLY v. BENNETT, 132 Pa. 218, 19 Am. St. Rep. 594, 19 
 
 Atl. 69. 
 Dangerous premises. 
 
 Cited in notes (7 L. R. A. 621) on dangerous premises; (26 L. R. A. 691) on 
 liability for dangerous condition of private grounds lying open beside highway 
 or frequented path. 
 Proximate and remote cause of injury. 
 
 Cited in Foster v. American Bitumastic Enamel Co. 15 Pa. Dist. R. 319, 
 holding that where plaintiff went up onto deck of steamer where men were 
 enameling pipes and slipped on a spot of enamel on the deck and fell with his 
 hand in bucket of hot enamel such spot and bucket were not proximate cause 
 of injury: McCandless v. Phreaner, 24 Pa. Super. Ct. 386, 9 Del. Co. Rep. 254, 
 holding plaintiff injured by reason of a chain being hung in private gateway 
 of which he had knowledge, may not recover therefor. 
 
 Cited in note (7 L. R. A. 133) on remote cause of injury. 
 Right to erect rail adjacent to side-walk. 
 
 Cited in Strayline v. Philadelphia. 15 Pa. Dist. R. 389, holding a railing along 
 house wall inside of sidewalk a lawful structure. 
 
 7 L. R. A. 121, STATE ex rel. ST. PAUL, M. & M. R. CO. v. DISTRICT COURT,. 
 
 42 Minn. 247, 44 N. W. 7. 
 Damages for laying out highway over railroad track. 
 
 Followed in State ex rel. Chicago, M. & St. P. R. Co. v. Shardlow, 43 Minn. 
 526, 46 X. W. 74. holding railroad company not entitled to recover for main- 
 tenance of sign-boards and cattle-guards, in assessing damages for laying out 
 highway over track. 
 
 Cited in Albia v. Chicago, B. & Q. R. Co. 102 Iowa, 630, 71 X. W. 541. holding. 
 in absence of statute, railroad cannot be compelled to construct crossings over 
 
2-239 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 125 
 
 right of way to connect new streets; Cleveland v. Augusta, 102 Ga. 237, 43 L. R. 
 A. 639, 29 S. E. 584, holding railroad company must bear expense of crossing 
 alterations to conform to new street grade; Morris & E. R. Co. v. Orange, 63 
 X. J. L. 270, 43 Atl. 730, holding railroad not entitled to compensation for main- 
 tenance of gates, sign-boards, cattle-guards, and flagman; Chicago, M. & St. P. 
 R. Co. v. Milwaukee, 97 Wis. 428, 72 X. W. 1118, holding duty of erecting and 
 maintaining cattle-guards, warning posts and crossing signs imposed by police 
 regulations must be performed without compensation; Louisville & N. R. Co. 
 v. Louisville, 131 Ky. 126, 24 L.R.A.(X.S.) 1224, 114 S. W. 743, holding that 
 damages for highway across railroad should not include cost of maintenance 
 and protection of crossing or compensation for increased liability to accidents; 
 State ex rel. Minneapolis v. St. Paul, M. & M. R. Co. 98 Minn. 386, 120 Am. 
 St. Rep. 581, 108 X. W. 261, 8 A. & E. Ann. Cas. 1047, holding that the state 
 has power to compel a railway company to install safety devices at street cross- 
 ings, and this applies as well to old streets as new. 
 
 Cited in note (24 L.R.A. (X.S.) 1234, 1235) on necessity and measure of 
 compensation upon laying out street across railway property. 
 
 Distinguished in Grafton v. St. Paul, M. & M. R. Co. 16 N. D. 320, 22 
 L.R.A. (X.S.) 14, 113 X. W. 598, 15 A. & E. Ann. Cas. 10, holding that a 
 railroad company was not entitled to damages for structural changes made 
 necessary by the laying out of a road over the right of way. 
 As to dnties not imposed by police regulations. 
 
 Followed in State ex rel. Chicago, M. & St. P. R. Co. v. Shardlow, 43 Minn. 
 526, 46 N. W. 74, holding railroad entitled to compensation for planking and its 
 maintenance. 
 
 Cited in Baltimore & 0. R. Co. v. Baltimore, 98 Md. 538, 56 Atl. 790, holding 
 that where a new street is laid out over a railroad the company is entitled to 
 compensation for planking and maintaining the same. 
 Laying: hightvay across tracks. 
 
 Cited in Madera v. Madera Canal & Irrig. Co. 159 Cal. 752, 115 Pac. 936, 
 to the point that railroads may be required to provide suitable crossings over 
 highways established after construction of railway; Cleveland v. Augusta, 102 
 Ga. 236, 43 L.R.A. 638, 29 S. E. 584, holding that railroad must at its own 
 expense, make such alterations in grade of crossings as will conform to new 
 grade of street in city; Chicago, M. & St. P. R. Co. v. Minneapolis, 115 Minn. 
 467, L.R.A. (X.S.) , 133 N. W. 169, holding that railroad may be required 
 to erect and maintain bridge to carry its tracks over street crossing where public 
 safety, convenience, or welfare require such bridge. 
 
 Cited in footnotes to Illinois C. R. Co. v. Chicago, 17 L. R. A. 530. which holds 
 city council's discretion to extend street over railroad tracks at grade or on 
 bridge or viaduct not controllable by courts ; Chicago, M. & St. P. R. Co. v. Stark- 
 weather, 31 L. R. A. 183, which sustains right to open street across depot 
 grounds; Terre Haute v. Evansville & T. H. R, Co. 37 L. R. A. 1*9, which au- 
 thorizes laying out streets across freight yard and tracks. 
 
 7 L. R. A. 125, EARL v. WILSOX, 42 Minn. 361, 18 Am. St. Rep. 517, 44 N. 
 
 W. 254. 
 Validity of marriage. 
 
 Cited in footnote to Hilton v. Roylance, 58 L. R. A. 723, which sustains sealing 
 for time and eternity under Mormon marriage ceremony. 
 
 Cited in note (79 Am. St. Rep. 382) on what marriages are void. 
 Indian marriage* 
 
 Cited in McBean v. McBean, 37 Or. 202, 61 Pac. 418, to point that marriage 
 
7 L.E.A. 125] L. R. A. CASES AS AUTHORITIES. 1240 
 
 Let ween Indians according to tribal custom is valid in state and Federal courts: 
 Ortley v. Ross, 78 Xeb. 342, 110 X. W. 982, holding that a marriage between the 
 members of an Indian tribe, while the tribal relations existed is valid if per- 
 formed according to the customs of the tribe; Cyr. v. Walker, 29 Okla. 289, 35 
 L.R.A. (N.S.) 801, 116 Pac. 93], to the point that marriage contracted between 
 members of Indian tribe, in accordance with its laws and customs, in absence 
 of statute, is valid; Kalyton v. Kalyton, 45 Or. 122, 74 Pac. 491, holding that 
 if the marriage was celebrated according to the customs of the tribe to which 
 they belong, and they lived together as husband and wife, the marriage is valid. 
 
 Cited in notes (11 L. R. A. 542) on jurisdiction over Indian country; (57 L. 
 R. A. 160) on conflict of laws as to validity of Indian marriage. 
 
 Distinguished in Moore v. Xah-con-be, 72 Kan. 172, 83 Pac. 400, holding that 
 .a marriage or divorce of Indians according to the customs of the tribes is not 
 valid after they become citizens of the state. 
 
 7 L. R. A. 127, HANSON v. GRAHAM, 82 Cal. 631, 23 Pac. 56. 
 Residence. 
 
 Cited in San Diego Sav. Bank v. Goodsell, 137 Cal. 427, 70 Pac. 299, holding 
 affidavit for publication of summons giving defendant's "address" outside state, 
 is compliance with statute providing such service, when person "resides" outside 
 the state; Witbeck v. Marshall-Wells Hardware Co. 88 111. App. 108, holding 
 person giving up residence, and living in hotels in another state, to avoid process, 
 and without definite intention of returning, is nonresident within attachment law; 
 Robinson v. Morrison, 2 App; D. C. 128, holding fact of residence cannot be con- 
 trolled by intention; Egener v. Juch, 101 Cal. 106, 35 Pac. 432 (distinguished in 
 dissenting opinion), refusing to reverse order dissolving attachment against de- 
 fendants as nonresidents upon conflicting affidavits as to residence; Pech Mfg. 
 Co. v. Groves, 6 S. D. 507, 62 N. W. 109, holding debtor under the circumstances 
 not to be a resident as defined in laws, entitling his property to exemption 
 from attachment. 
 
 Cited in notes ( 19 L. R. A. 665 ) on what is nonresidence for purpose of at- 
 tachment; (10 L. R. A. 504) on who are nonresidents. 
 
 Distinguished in Re Donovan, 104 Cal. 625, 38 Pac. 456, holding three days' 
 presence in state by one looking after settlement of brother's estate and declara- 
 tion of intention to remain, insufficient to establish bona fide residence. 
 
 7 L. R. A. 128, BAIRD v. SHIPMAN, 132 111. 16, 22 Am. St. Rep. 504, 23 N. 
 
 E. 384. 
 Liability of agent or custodian for defective premises. 
 
 Approved in Mayer v. Thompson-Hutchison Bldg. Co. 104 Ala. 622, 28 L. R. A. 
 436, 53 Am. St. Rep. 88, 16 So. 620, holding agent of contractor jointly liable 
 with him for injury to third person resulting from negligent construction of 
 wall; Lough v. John Davis & Co. 30 Wash. 213, 59 L. R. A. 805, 94 Am. St. Rep. 
 848. 70 Pac. 491, holding agent having charge of building liable for injuries to 
 tenants caused by his failure to make repairs. 
 
 Cited in Chicago Consol. Bottling Co. v. Mitton, 41 111. App. 156, holding one in 
 control of premises responsible for known defects or for those of which he might 
 have known by exercising reasonable care; Gibson v. Leonard, 37 111. App. 348, to 
 point that agent having control of premises responsible for their condition when 
 leased; Stiewel v. Borman, 63 Ark. 37, 37 S. W. 404, holding agent operating 
 mine not liable to one to whom he owes no duty, injured by explosion of gas; 
 Cameron v. Kenyon-Connell Commercial Co. 22 Mont. 320, 44 L. R. A. 511, 74 Am. 
 St. Rep. G02, 56 Pac. 508, holding director who knows nothing of nuisance main- 
 
1241 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 130 
 
 tained by corporation and could not have known by ordinary diligence, not re- 
 sponsible ; Donk Bros. Coal & Coke Co. v. Leavitt, 109 111. App. 390, holding land- 
 lord liable for drowning of child under three years of age, by falling into un- 
 guarded cistern; Orcutt v. Century Bldg. Co. 201 Mo. 450, 8 L.R.A. (X.S.) 937, 
 99 S. W. 1062, holding trustee having complete control of building liable for 
 injury caused by negligence in maintenance of elevator and negligence of the 
 elevator man; Rauch v. Brunswig, 155 Mo. App. 371, 137 S. W. 67, to the point 
 that agent may be liable personally to third person where he has control of the 
 property; Hagerty v. Montana Ore Purchasing Co. (Hagerty v. Wilson) 38 Mont. 
 77, 25 L.R.A. (X.S.) 359, 98 Pac. 643, holding mining superintendent liable to 
 workmen injured in a defective shaft which it was his duty to close under the 
 circumstances; Young v. Rohrbough, 88 Neb. 106, 129 N. W. 167, holding that 
 agents of corporation are liable to third person for injury caused by defective 
 premises which are under such agent's control. 
 
 Cited in note (28 L. R. A. 438) as to liability of agent to third person for 
 nopliirence. 
 
 Distinguished in Kuhnert v. Angell, 10 X. D. 61, 88 Am. St. Rep. 675, 84 N. W. 
 579, holding agent for owner of unoccupied land not liable to a trespasser for its- 
 unsafe condition where his authority was limited to leasing and collecting rent; 
 Smith v. Pawlak, 136 111. App. 279, holding persons hiring elevator-boy for the 
 owner of a building over which such persons had control, not liable for injury 
 caused by negligence of such boy. 
 Personal liability of agrent for negligence. 
 
 Cited in Frorer v. Baker, 137 111. App. 594, holding agent of corporation not 
 personally liable for negligence of corporation causing injury unless he could 
 be held without regard to liability of the corporation; Ward v. Pullman Car 
 Corp. 131 Ky. 150, 25 L.R.A. ( N.S. ) 351, 114 S. W. 754, holding car inspectors 
 for railway company personally liable for negligent inspection and approval of 
 defective car causing injury; Carson v. Quinn, 127 Mo. App. 534, 105 S. W. 
 1088, holding failure of agent to perform duty lays him liable only to principal 
 but the misdoing of that duty makes him liable for consequences to third persons. 
 
 Cited in notes (48 Am. St. Rep. 926) on personal liability of corporate officers 
 to third persons; (2 L.R.A. (X.S.) 379) on servant's liability to third person 
 for torts. 
 Actionable breach of duty. 
 
 Cited in Brower v. Xorthern P. R. Co. 109 Minn". 387, 25 L.R.A.(X.S.) 355, 
 124 X. W. 10, holding liability of one fellow servant to another for causing 
 injury depends, not on any privity of contract, but on the common law obliga- 
 tion to so act as not to injure another; Pewonka v. Stewart, 13 X. D. 121, 99 
 X. W. 1080, holding defendant in driving post in traveled pathway was not 
 conducting himself in the use of property in his control so as not to injure others. 
 
 7 L. R. A. 130, READ v. NICHOLS, 118 N. Y. 224, 28 X. Y. S. R. 867, 23 N. 
 
 E. 468. 
 Proximate cause. 
 
 Cited in Hoffman v. King, 160 X. Y. 625, 46 L. R, A. 675, 73 Am. St. Rep. 715, 
 55 N. E. 401, holding negligence in starting fire not proximate cause of de- 
 struction of property to which it spreads across intervening lands; Beetz v. 
 Brooklyn, 10 App. Div. 384, 41 X. Y. Supp. 1009, holding placing lime in street 
 for building purposes not proximate cause of injury to boy who put some lime in 
 contact with water; Chicago, St. P. M. & O. R. Co. v. Elliott, 20 L. R, A. 587, 
 5 C. C. A. 352, 12 U. S. App. 381, 55 Fed. 954, holding conductor's statement to 
 
7 L.R.A. 130] L. R. A. CASES AS AUTHORITIES. 1242 
 
 stockman that caboose would not be changed and he would not have time to look 
 at sheep not proximate cause of injury where stockman while walking on top of 
 cars fell when the caboose was changed; Cole v. German Sav. & L. Soc. 63 L. R. 
 A. 424, 59 C. C. A. 602, 124 Fed. 122, holding opening of elevator well door in 
 hallway by stranger proximate cause of injury to one who stepped into shaft; 
 Xoe v. Rapid R. Co. 133 Mich. 162, 94 N. W. 743 (dissenting opinion), on 
 question of proximate cause also citing annotation on same point. 
 
 Cited in footnotes to Kelly v. Bennett, 7 L. R. A. 120, which holds sharp point 
 on iron railing around area not proximate cause of injury to person slipping on 
 walk; McC'lain v. Garden Grove, 12 L. R. A. 482, which holds narrowness of 
 bridge and insufficiency of railings not proximate cause of injury from horse falling 
 from disease or choking; Schumaker v. St. Paul & D. R. Co. 12 L. R. A. 257, 
 which holds master's neglect to furnish transportation proximate cause of injury 
 in walking to find shelter; Vallo v. United States Exp. Co. 14 L. R. A. 743, 
 which holds throwing trunk from delivery wagon in highway proximate cause of 
 traveler falling over another trunk; Southwestern Teleg. & Teleph. Co. v. Robin- 
 son, 16 L. R. A. 545, which holds telephone company liable for injury by elec- 
 tricity generated by thunder storm in low-hanging telephone wire; Herr v. Le- 
 banon, 16 L. R. A. 106, which holds want of barrier not proximate cause of omni- 
 bus going over wall, while horse was attempting to rise; McKenna v. Baessler, 
 17 L. R. A. 310, which holds original fire cause of destruction of property by 
 back fire; Chicago, St. P. M. & O. R. Co. v. Elliott, 20 L. R. A. 582, as to proxi- 
 mate cause of injury to shipper while stepping from stock car to caboose ; West- 
 ern R. Co. v. Mutch, 21 L. R. A. 316, which holds excessive speed not proximate 
 cause of death of boy attempting to catch on train; Hoffman v. King, 46 L. R. A. 
 672, which denies liability of one negligently starting fire for damage to lands 
 of remote proprietors to which fire spreads; Kansas City, Ft. S. & M. R. Co. v. 
 Blaker, 64 L. R. A. 81, which holds railroad company liable for loss due to spread 
 of flames from buildings on its right of way negligently set on fire by it. 
 
 Cited in notes (13 L. R. A. 733) on proximate and remote cause of damage; 
 (12 L. R. A. 283) on proximate cause of injury fixing the liability; (13 L. R, A. 
 193) on responsibility for proximate or direct consequences of negligence; (12 
 L. R. A. 280) on contributory negligence must be proximate cause of injury; (8 
 L. R. A. 85) as to effect of intervening cause upon liability for negligence; (17 
 L. R. A. 38) on effect of concurring negligence of third person on liability of 
 one sued for negligently causing injury; (20 L.R.A. (N.S.) 94) on weather 
 conditions, as independent, intervening, efficient cause; (36 Am. St. Rep. 825) 
 on proximate and remote cause. 
 
 Distinguished in Martin v. New York, O. & W. R. Co. 62 Hun, 185, 16 X. Y. 
 Supp. 499, holding sparks from engine which set fire along track proximate cans.; 
 of burning of woodland a mile distant to which wind and intervening condition .; 
 carried fire. 
 
 Disapproved in Florida East Coast R. Co. v. Welch, 53 Fla. 168, 44 So. 250, 
 12 A. & E. Ann. Cas. 210, holding a change of wind not a cause intervening to 
 prevent recovery for negligent starting of a fire. 
 Question for jury. 
 
 Cited in Stone v. Boston & A. R. Co. 171 Mass. 543, 41 L. R. A. 797, 51 N. E. 
 1, holding case need not be submitted to jury if damages are too remote; Homo 
 Oil & Gas. Co. v. Dabney, 79 Kan. 829, 102 Pac. 488, holding that wliere the 
 facts show that the proximate cause is some independent agency and that acts 
 complained of are remote cause, it is duty of court to keep question from jury 
 and decide on cause. 
 
1243 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 134 
 
 Sufficiency of exception. 
 
 Cited in Huerzeler v. Central Cross Town R. Co. 139 X. Y. 493, 34 N. E. 1101, 
 Affirming 1 Misc. 138, 48 X. Y. S. R. 651, 20 N. Y. Supp. 676, holding general 
 exception to the granting and refusal of requests to charge insufficient ; Purcell 
 v. Lauer, 14 App. Div. 53, 43 X. Y. Supp. 988 (dissenting opinion), majority 
 holding question for jury where death resulted over a year after fall on side- 
 walk; Southern P. R. Co. v. Yeargin, 48 C. C. A. 504, 109 Fed. 443 (dissenting 
 opinion), to conceded proposition that if there is evidence that defendant's negli- 
 gence was proximate cause of injury question is for jury, otherwise for court; 
 Barker v. Cunard S. S. Co. 91 Hun, 500, 36 X. Y. Supp. 256, holding general 
 exception to refusal to charge requests insufficient unless each should have been 
 granted as preferred ; McKinley v. Metropolitan Street R. Co. 77 App. Div. 259, 79 
 X. Y. Supp. 213, holding "exception in due form to each request refused or 
 modified" allowed by court after retirement of jury, sufficient; Benedict v. 
 Deshel, 77 App. Div. 279, 79 X. Y. Supp. 205, holding exception to each refusal to 
 charge to several requests, too indefinite; Connor v. Metropolitan Street R. Co. 
 77 App. Div. 388, 79 X. Y. Supp. 294, holding exception to court's charging re- 
 quests "first, second," etc., sufficient. 
 Harmless error in admiaaibility of evidence. 
 
 Cited in Ives v. Ellis, 169 X. Y. 106, 62 X. E. 138 (dissenting opinion), ma- 
 jority holding erroneous admission of letter incompetent as hearsay, not cured 
 by general verdict; Cunningham v. Springer, 204 U. S. 655, 51 L. ed. 665, 27 
 Sup. Ct. Rep. 301, 9 A. & E. Ann. Cas. 897, holding that where the verdict 
 shows an issue to have been immaterial the admission of evidence on that point 
 was not prejudicial and cannot be grounds for reversal. 
 
 7 L. R. A. 134, LAWTOX v. STEELE, 119 X. Y. 226, 16 Am. St. Rep. 813, 23 H. 
 E. 878. 
 
 Affirmed in 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct, Rep. 499. 
 Police power. 
 
 Cited in State v. Dow, 70 X. H. 287, 53 L. R. A. 315, 47 Atl. 734, holding stat- 
 ute forbidding catching of trout in local waters with intent to sell same, con- 
 stitutional; State v. Lewis, 134 Ind. 256, 20 L. R. A. 55, 33 N. E. 1024, holding 
 statute declaring possession of gill nets or seine, misdemeanor, constitutional : 
 People v. Rosenberg, 67 Hun, 60, 22 X. Y. Supp. 56, holding statute declaring 
 fat rendering nuisance, and prohibiting same within municipal limits, valid; 
 Warner v. Stebbins, 111 Iowa, 88, 82 X. W. 457, holding township health board 
 may restrain establishment of municipal pest house within limits without proof 
 of nuisance; People v. Hawkins, 157 X. Y. 8, 42 L. R. A. 494, 68 Am. St. Rep. 
 736, 51 X. E. 257, holding statute forbidding sale of convict-labor products except 
 where labeled, void as interference with interstate commerce; People v. Buffalo 
 Fish Co. 104 X. Y. 112, 52 L. R. A. 810, 79 Am. St. Rep. 622, 58 X. E. 34 (dis- 
 senting opinion), majority holding statute prohibiting possession of certain fish 
 during close season applies only to those caught in local waters; People v. Pier- 
 son, 176 X. Y. 211, 63 L. R. A. 192, 98 Am. St. Rep. 666, 68 N. E. 243, holding 
 constitutional, statute making it a misdemeanor to refuse to provide medical at- 
 tendance for a minor; Xew Orleans v. Charouleau, 121 La. 893, 18 L.R.A. (X.S. ) 
 370, 126 Am. St. Rep. 332, 46 So. 911, 15 A. & E. Ann. Cas. 46, on the right 
 of a state to destroy private property without compensation which has become 
 or is a public nuisance; State v. Chicago, M. & St. P. R. Co. 114 Minn. 126, 
 33 L.R.A. (X.S.) 497, 130 X. W. .34.5, Ann. Cas. 1912 B. 1030, holding that ordi- 
 nance tending, to prevent smoke nuisance by prohibiting use of soft coal is con- 
 stitutional; State v. Tower, 185 Mo. 92, 68 L.R.A. 406, 84 S. W. 10, holding 
 
7 L.E.A. 134] L. R. A. CASES AS AUTHORITIES. 1244" 
 
 a statute prohibiting emission of smoke in dense volumes within city limits, as a 
 nuisance a valid use of state police power; People ex rel. Silz v. Hesterbeig, 109 
 App. Div. 306, 96 N. Y. Supp. 286 (dissenting opinion), on the scope of police 
 power of state; People v. Bootman, 180 N. Y. 9, 72 N. E. 505, 2 A. & E. Ann. Gas. 
 226, 19 N. Y. Grim. Rep. 35, holding the enactment of laws prohibiting the catch- 
 ing and sale of fish within stipulated seasons is properly within police power of 
 state; Shelby v. Cleveland Mill & Power Co. 155 X. C. 200, 35 L.R.A.(N.S.) 
 490, 71 S. E. 218, Ann. Gas. 1912C, 179, holding that statute regulating sewers 
 discharging into any "drain, creek, or river from which public drinking-water 
 supply is taken" is within police power of legislature; Kuchler v. Weaver, 23 
 Okla. 438, 100 Pac. 915, on the scope of the police power and abatement of 
 public nuisance thereunder by summary proceedings; Lowe v. Conroy, 120 Wis. 
 155, 66 L.R.A. 909, 102 Am. St. Rep. 983, 97 N. W. 942, 1 A. & E. Ann. Gas. 
 341, holding that diseased cattle a source of danger to public health may be- 
 destroyed without compensation tinder police power; North American Cold 
 Storage Co. v. Chicago, 211 U. S. 316, 53 L. ed. 200, 29 Sup. Ct. Rep. 101, IS- 
 A. & E. Ann. Cas. 276, holding state has power to seize and destroy unwhole- 
 some food without notice or hearing and the owner may bring action for damages 
 after destruction though the health officers declared the food unwholesome. 
 
 Cited in footnotes to Com. v. Manchester, 9 L. R. A. 236, which holds state may 
 regulate fishing in bay within its borders; People v. Bridges, 16 L. R. A. 684, 
 which upholds prohibition of fishing with seine in lake on private land during 
 part of year; Peters v. State, 33 L. R. A. 114, which holds valid as to private- 
 lake act regulating mode of taking fish; Com. v. Brown, 28 L. R. A. 110, which 
 sustains weekly tax on sales of oysters; State v. Harrub, 15 L. R. A. 761, which 
 holds statute prohibiting shipment of oysters in shells from state not interference- 
 with commerce; State v. Mrozinski, 27 L. R. A. 76, which holds absolute prohibi- 
 tion against taking fish otherwise than by hook and line with specified exceptions, 
 valid; State v. McGuire, 21 L. R. A. 478, which holds having in possession during 
 close season fish previously caught not an offense. 
 
 Cited in notes (39 L. R. A. 586, 588) on government control over right of 
 fishery; (9 L. R. A. 807) on fishery rights; (8 L. R. A. 449) on property in: 
 ferce natures; (36 L. R. A. 593, 598) on power of municipal corporation to de- 
 fine, prevent, and abate nuisances; (42 Am. St. Rep. 138) on game laws; (78 
 Am. St. Rep. 239, 256, 257 ) on acts which legislature may declare criminal. 
 Due process of law. 
 
 Followed in State v. French, 71 Ohio St. 200, 104 Am. St. Rep. 770. 73 N. E. 
 216, 1 A. & E. Ann. Cas. 948, holding that a statute providing for destruction 
 of nets used for illegal fishing is constitutional. 
 
 Cited in Bittenhaus v. Johnston, 92 Wis. 598, 32 L. R. A. 383, 66 X. W. 805 r 
 and Osborn v. Charlevoix Circuit Judge, 114 Mich. 665, 72 X. W. !>82, holding 
 statute authorizing summary destruction by warden of fish nets used in violation* 
 of law, constitutional; Colon v. Lisk, 13 App. Div. 199, 43 X. Y. Supp. 364, hold- 
 ing statute authorizing summary seizure of boat used in unlawfully disturbing 
 oysters, constitutional; Egan v. Health Department, 20 Misc. 40, 79 X. Y. S. R. 
 327, 45 N. Y. Supp. 325, upholding statute authorizing health board to order 
 vacation of unsanitary premises where such order not final; Cartwright v. Cohoes,. 
 39 App. Div. 72, 56 X. Y. Supp. 731, refusing to enjoin summary destruction of 
 privy by board of health under ordinance declaring same nuisance; Hempstead v. 
 Ball Electric Light Co. 9 App. Div. 51, 41 X. Y. Supp. 124, holding village trus- 
 tees authorized by statute to maintain action to compel removal of electric-wire 
 poles constituting nuisance; Re Kenny, 23 Misc. 14, 49 X. Y. Supp. 1037, holding 
 provision for penalty dependent upon decision of prison official as to identity of 
 
1245 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 134 
 
 prisoner, without hearing, unconstitutional; Garland Novelty Co. v. State, 71 
 Ark. 142, "IS. W. 257, upholding constitutionality of statute authorizing sum- 
 mary destruction of gambling devices; People v. Booth & Co. 42 Misc. 326, 86 
 X. Y. Supp. 272, holding unconstitutional, statute prohibiting possession of im- 
 ported fish or game during close season; Rockefeller v. Lamora, 85 App. Div. 
 263, 83 X. Y. Supp. 289, denying right of public to fish in waters running through 
 private park, although stocked by state; Mullen v. Moseley, 13 Idaho, 465. 12 
 L.R.A.(X.S-) 398, 121 Am. St. Rep. 277, 90 Pac. 986, 13 A. & E. Ann. Gas. 
 450, holding anti-gambling law not in conflict with the "due process" clause of 
 constitution; McConnell v. McKillip, 71 Xeb. 715, 65 L.R.A. 613, 115 Am. St. 
 Rep. 614, 99 N. W. 505, 8 A. & E. Ann. Cas. 898, holding an act authorizing 
 the destruction of nets found on shore unconstitutional since nets are not a 
 nuisance unless in the water; Williams v. Rivenburg, 145 App. Div. 100, 129 
 X. Y. Supp. 473, holding that statutes under which property may be destroyed 
 in abatement of nuisance, and which do not provide for compensation are not 
 unconstitutional as providing for taking property for public use without com- 
 pensation; Clement v. Certain Intoxicating Liquors, 62 Misc. 30, 115 N. Y. 
 Supp. 162, holding a taking or destruction of beer bottles belonging to an inno- 
 cent person where they contain beer belonging to another which has been declared 
 a nuisance is a taking without due process of law; Daniels v. Homer, 139 X. C. 
 224, 3 L.R.A.(X.S.) 1000, 51 S. E. 992, holding an act authorizing confiscation 
 of fish nets illegally used not to be in violation of "due process clause," since 
 the owner could enjoin destruction or sale or have damages for such acts if 
 the seizure was not justified. 
 
 Cited in footnotes to Eichenlaub v. St. Joseph, 18 L. R. A. 590, which holds 
 no judicial proceeding necessary to authorize tearing down of wooden building 
 within fire limits; State v. Robbins, 8 L. R. A. 438, which refuses to direct sum- 
 mary destruction of gaming devices seized. 
 
 Cited in notes (19 L. R. A. 197) on right to compensation for property de- 
 stroyed in abating public nuisance; (36 L. R. A. 606) on extent of municipal 
 right to take or destroy property in abatement of nuisance; (38 L. R. A. 167) 
 on municipal power over buildings and other structures as nuisances; (9 L. R. A. 
 716) on abatement of nuisance by action. 
 
 Distinguished in Colon v. Lisk, 153 X. Y. 195, 60 Am. St. Rep. 609, 47 X. E. 
 -302, Affirming 13 App. Div. 202, 43 X. Y. Supp. 364, denying power of legislature 
 to arbitrarily provide for forfeiture to state of any boat used in interfering with 
 oysters or other shell fish of another; Josh v. Marshall. 33 App. Div. 79, 53 X. Y. 
 Supp. 419, holding seizure of iy 8 -inch bar nets used more than 1 mile from shore 
 not justified under fisheries statute making use within 1 mile nuisance ; Fox v. 
 Mohawk & H. River Humane Soc. 25 App. Div. 29, 48 X. Y. Supp. 625, Reversing 
 20 Misc. 467, 46 X. Y. Supp. 232, holding statute subjecting unlicensed dog to 
 summary destruction unconstitutional where not declared nuisance; Xew York 
 Sanitary Utilization Co. v. Health Department, 61 App. Div. 113, 70 X. Y. Supp. 
 510, holding statute declaring boiling garbage within city limits unlawful, void 
 where not actually nuisance; People ex rel. Copcutt v. Board of Health, 140 X. Y. 
 10, 23 L. R. A. 484, 37 Am. St. Rep. 522, 35 X. E. 320, holding board of health 
 liable for destruction of dam unless same in fact nuisance; Houston v. State, 98 
 Wis. 486. 42 L. R. A. 48, 74 X. W. Ill, holding destruction of healthy animals 
 under statute against diseased does not found statutory "claim against state;" 
 Chicago & E. R. Co. v. Keith. 67 Ohio St. 293, 60 L. R. A. 530, 65 X. E. 1020, 
 holding unconstitutional statute requiring railroads to construct ditches by side 
 of roadbed. 
 
7 L.R.A. 134] L. R. A. CASES AS AUTHORITIES. 1246: 
 
 Construction of statutes. 
 
 Cited in People ex rel. Holmes v. Lane, 53 App. Div. 536/65 N. Y. Supp. 1004, 
 holding statute creating office of police justice not void in toto by reason of un- 
 constitutional provision for exclusive jurisdiction; Rathbone v. Wirth, 150 X. \.. 
 479, 34 L. R. A. 416, 45 N. E. 15, holding unconstitutional provision disqualifying 
 party for office unless member of particular political party renders statute pro- 
 viding for bipartisan police board, void; Newman v. People. 23 Colo. 308, 47 Pac. 
 278, holding statute authorizing seizure of gambling devices without notice con- 
 stitutional, irrespective of validity of section authorizing destruction thereof; Re 
 Burger, 21 Misc. 372, 47 N. Y. Supp. 292, holding provision relating to present 
 incumbent fails where part of unconstitutional act extending term of officer; 
 Hennessey v. Volkening, 30 Abb. N. C. Ill, 22 N. Y. Supp. 534, construing statute 
 providing for collection of water rents from all buildings on street supplied with 
 distributing pipes, to authorize collection only from premises using water. 
 
 Cited in notes (10 L. R. A. 196) on partial invalidity of statutes; (11 L. R. 
 A. 583) on construction of redelegated powers. 
 Lake Ontario. 
 
 Cited in People v. Featherly, 35 N. Y. S. R. 159, 12 N. Y. Supp. 389, holding 
 Great Sodus bay part of Lake Ontario within exemption of statute regulating 
 duck shooting. 
 Remedies for abatement of nuisance. 
 
 Cited in Detroit Mineral Bath Co. v. Stroh Brewery Co. 151 Mich. 557, 115 
 N. W. 717, holding a summary abatement of a nuisance not ground for refusal 
 of an injunction to prevent a threatened revival thereof. 
 
 Cited in note (28 Am. St. Rep. 198) on injunction against nuisance as request 
 of private person. 
 Declaration of public nuisance. 
 
 Cited in Clement v. May, 136 App. Div. 201, 120 N. Y. Supp. 588, on the 
 state's right to add to the list of public nuisances; Re Jones, 4 Okla. Grim. 
 Rep. 78, 31 L.R.A.(N.S.) 551, 140 Am. St. Rep. 655. 109 Pac. 570, holding that 
 legislature has power to declare what shall constitute nuisance and is not re- 
 stricted to declaring only such things nuisance as were so at common law or 
 are so per se. 
 
 Cited in notes (20 Am. St. Rep. 136) on power to declare what are nuisances; 
 (107 Am. St. Rep. 202, 236) on what are public nuisances. 
 Abatement of public nuisance. 
 
 Cited in Yonkers v. Federal Sugar Ref. Co. 136 App. Div. 704, 121 N. Y. 
 Supp. 494, holding public nuisance may only be abated by public except where 
 private individual sustains some special injury he may abate. 
 Limited by necessity. 
 
 Cited in Daniels v. Homer, 139 N. C. 246, 3 L.R.A. (N.S.) 1008, 51 S. E. 992 
 (dissenting opinion), on the right to seize and destroy fish nets as being based 
 on and only required by necessity. 
 Legislative power. 
 
 Cited in Saratoga Springs v. Saratoga Gas, Electric Light, Heat & P. Co. 
 191 N. Y. 134, 18 L.R.A. (N.S.) 719, 83 N. E. 693, 14 A. & E. Ann. Cas. 606; 
 Re Fenton, 58 Misc. 309, 109 N. Y. Supp. 321, on the province of the legislature 
 as limited by state and federal constitutions and the other departments of 
 government. 
 
 7 L. R. A. 139, RAPPLEYE v. RACINE SEEDER CO. 79 losva, 220, 44 N. W. 363. 
 Rigrbt to nssigrn contract. 
 
 Cited in Worden v. Chicago & N. W. R. Co. 82 Iowa, 735, 48 N. W. 71, holding 
 
1247 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 149 
 
 contract to furnish coal not in law assignable; Jackson v. Sessions, 109 Mich. 
 222, 67 N. W. 315, holding assignment by subvendees of rights in contract for 
 purchase of timber void as between assignee and original vendor; D. C. Hardy 
 Implement Co. v. South Bend Iron Works, 129 Mo. 230, 31 S. W. 599, holding 
 executory contract with partnership may be repudiated by person contracting 
 with firm, upon one partner withdrawing therefrom; Sargent Glass Co. v. Mat- 
 thews Land Co. 35 Ind. App. 55, 72 N. E. 474, holding a contract by land com- 
 pany on a conveyance of land to give to its grantee for manufacturing purposes 
 free gas, so long as such gas could be obtained from grantors land is not as- 
 signable. 
 
 7 L. R. A. 143, PATTERSON v. LECKIE, 83 Ga. 703, 10 S. E. 355. 
 Power of appointment. 
 
 Cited in Stearns v. Fraleigh, 39 Fla. 616, 39 L. R. A. 709, 23 So. 18, holding 
 power of beneficiary in deed to appoint trustee possesses none of the elements of 
 an estate; Tuell v. Hurley, 206 Mass. 68, 91 N. E. 1013, to the point that 
 individual estate of donee of power must first be exhausted before creditors 
 can reach any part of estate appointed. 
 
 Cited in footnote to Cotting v. De Sartiges, 16 L. R. A. 367, which holds intent 
 to execute power of appointment not shown by will not referring to power. 
 
 Cited in note (21 Eng. Rul. Cas. 585) on executed general power as assets 
 for payment of debts of deceased donee of the power. 
 
 7 L. R. A. 145, THOMAS v. W ABASH, ST. L. & P. R. CO. 40 Fed. 126. 
 Statutes partly good and partly bad. 
 
 Cited in note (10 L. R. A. 196) on statutes valid in part and invalid in part. 
 Special and exclusive privileges. 
 
 Cited in note (14 L. R. A. 582) on constitutional equality of privileges, im- 
 munities, and protection. 
 Title of statute. 
 
 Cited in People v. Pease, 3 111. C. C. 72, holding an act to regulate personal 
 rights and privilege under the guise of a police regulation as indicated by the 
 title is void. 
 
 Cited in note (64 Am. St. Rep. 104) on sufficiency of title of statute. 
 
 7 L. R. A. 149, WOOD v. ST. PAUL CITY R. CO. 42 Minn. 411, 44 N. W. 308. 
 Authenticated affidavits from another state. 
 
 Cited in Duggan v. Washougal Land & Logging Co. 10 Wash. 85, 38 Pac. 856, 
 holding verification of lien before notary of another state certifying to jufat suf- 
 ficient; Hickey v. Collom, 47 Minn. 568, 50 N. W. 918, holding authentication of 
 affidavit by clerk of court of another state incomplete; lie Pancoast, 129 Fed. 
 645, holding signature and seal sufficient proof, in first instance, of official char- 
 acter of notary out of state; Simpson v. Wicker, 120 Ga. 420, 47 S. E. 965, 1 
 A. & E. Ann. Cas. 542, holding that an affidavit in forma pauperis made before 
 a notary in a foreign state, and authenticated by his seal, was sufficient; 
 Genest v. Las Vegas Masonic Bldg. Asso. 11 X. M. 267, 67 Pac. 743, holding that 
 where it appeared that the verification to a lien statement was made by the 
 clerk of the court, who had general powers to administer oaths, in a neighboring 
 state, the verification was sufficient. 
 
 Cited in note (38 L. R. A. 411) on mechanic's lien under contract made or per- 
 formed in another state. 
 
7 L.R.A. 151] L. R. A. CASES AS AUTHORITIES. 1248 
 
 7 L. R. A. 151, MOORE v. SANFORD, 151 Mass. 285, 24 N. E. 323. 
 Pendency of condemnation proceedings us affecting: rights. 
 
 Cited in Newburyport Water Co. v. Newburyport, 85 Fed. 726, holding water 
 company having petitioned state court for appraisal of its property for public 
 use can apply to Federal court to test validity of statute; Norcross v. Cam- 
 bridge, 166 Mass. 510, 33 L. R. A. 843, 44 N. E. 615, holding pendency of pe- 
 tition for damages for taking land does not prevent action to determine valid- 
 ity of act for taking; Boston & M. R. Co. v. Graham, 179 Mass. 67, 60 N. E. 405, 
 holding lessee of railroad petitioning for determination of value of stock of dis- 
 senting stockholders of lessor not bound to admit right to dissent; Mountain 
 Park Terminal R. Co. v. Field, 76 Ark. 244, 88 S. W. 897, holding that the 
 owner of land which is in process of being condemned for a public use may have 
 resort to a court of equity on the issue as to whether the proposed use is public; 
 Portneuf Irrigating Co. v. Budge, 16 Idaho, 131, 100 Pac. 1046, holding that 
 the question as to necessity of condemnation should be determined before insti- 
 tution of the inquisition to ascertain damages and compensation; Gordon v. 
 Richardson, 185 Mass. 496, 69 L.R.A. 870, 70 N. E. 1027, on the right to file 
 petition for damages and concurrently question the legality of the taking. 
 Legislative determination of necessity to take land for public nse. 
 
 Cited in Butte, A. & P. R. Co. v. Montana Union R. Co. 16 Mont. 529, 31 L. 
 R. A. 306, 50 Am. St. Rep. 508, 41 Pac. 232, holding necessity to take property 
 for railroad follows from determination that it is for public use; Re Kingman, 
 153 Mass. 572, 12 L. R. A. 421, 27 N. E. 778, holding determination by legisla- 
 ture that sewage system necessary for certain territory conclusive; Connecticut 
 River Lumber Co. v. Olcott Falls Co. 65 N. H. 388, 13 L. R. A. 836, 21 Atl. 
 1090, holding abandonment by state of public right to float logs "down a stream 
 when it grants a manufacturing company the right to use the water power there- 
 on, not inferable from fact that the manufacturing business is the more import- 
 ant; Ulmer v. Lime Rock R. Co. 98 Me. 591, 66 L. R. A. 393, 57 Atl. 1001, up- 
 holding right of railroad company to condemn land for purpose of building 
 branch track to quarry. 
 
 Cited in note (8 L. R. A. 58) on right of eminent domain. 
 Public nse. 
 
 Cited in Opinion of Justices, 204 Mass. 613, 27 L.R.A. (N.S.) 486, 91 N. E. 
 405, holding the use of property by a city for future profit and income is not 
 a public use; Boston v. Talbot, 206 Mass. 89, 91 N. E. 1014, holding that ques- 
 tion whether use for which land is taken is public use is judicial question; 
 Minnesota Canal & Power Co. v. Koochiching Co. 97 Minn. 446, 5 L.R.A. (N.S.) 
 646, 107 N. W. 405, 7 A. & E. Ann. Cas. 1182, holding that it is no objection 
 to a taking for a public use that incidental and private advantage will result to 
 the petitioner. 
 
 Cited in notes (88 Am. St. Rep. 935) on existence of public use as question 
 for courts; (102 Am. St. Rep. 818) on uses for which power of eminent domain 
 cannot be exercised; (21 L.R.A. (N.S.) 542) on eminent domain; combination 
 of public and private uses; (22 L.R.A. (N.S.) 49) on extent of user as affecting 
 public nature of use. 
 Judicial power over eminent domain. 
 
 Cited in note (22 L.R.A.(N.S.) 3, 53, 65, 81) on judicial power over eminent 
 domain. 
 Bringing; of suit as election of remedies. 
 
 Cited in note (34 L.R.A. (N.S.) 312) on bringing suit not prosecuted to judg- 
 ment as election of remedies. 
 
1249 L. R. A. CASES AS AUTHORITTES. [7 L.R.A. 150 
 
 7 L. R. A. 154, RAMSDELL v. NEW YORK & N. E. R. CO. 151 Mass. 245, 23 
 
 N. E. 1103. 
 Construction of Massachusetts employer's liability act. 
 
 Cited in Clark v. New York, P. & B. R. Co. 160 Mass. 41, 35 N. E. 104, hold- 
 ing administrator no right of action for instant death of intestate, without widow 
 or dependent next of kin; Gustafsen v. Washburn & M. Mfg. Co. 153 Mass. 471, 
 27 X. E. 179, holding widow only person who could maintain action for negli- 
 gent instantaneous killing of her husband; Dacey v. Old Colony R. Co. 153 Mass. 
 118, 26 N. E. 437, holding action not maintainable under statute of 1887, for death 
 <lue to negligence of coemployee; Daly v. New Jersey Steel & I. Co. 155 Mass. 
 5, 28 N. E. 1056, holding action for instantaneous killing of unmarried man 
 should be brought in name of dependent next of kin only; Vetaloro v. Perkins. 
 101 Fed. 394, holding nonresident alien widow not debarred from right of action 
 under liability act of 1887; Smith v. Thomson-Houston Electric Co. 188 Mass. 
 376, 74 N. E. 664, holding that statute made no provision for recovery by widow 
 or dependents for negligent death of servant where death was not instantaneous 
 or without regaining consciousness. 
 Action, for death. 
 
 Cited in note (17 L. R. A. 77) on measure of recovery for death caused by neg- 
 ligence. 
 
 7 L. R. A. 156, BATES v. WESTBOROUGH, 151 Mass. 174, 23 N. E. 1070. 
 Liability of private person for discharge of surface water upon another's 
 land. 
 
 Cited in Fitzpatrick v. Welch, 174 Mass. 486, 48 L. R. A. 279, 55 N. E. 178, 
 upholding judgment for damages for discharge of water from defendant's gut- 
 ter upon plaintiff's land; Smith v. Faxon, 156 Mass. 596, 31 N. E. 687, holding 
 private landowner cannot collect surface water into definite channel and dis- 
 charge it on neighbor's land; Hynes v. Brewer, 194 Mass. 440, 9 L.R.A. (N.S. ) 
 600, 80 N. E. 503, holding defendant liable to one sustaining personal injury 
 from an accumulation of ice on sidewalk caused by artificial discharge of water 
 from his premises. 
 
 Cited in note (18 Eng. Rul. Cas. 725) on liability for injury to neighbor 
 from improper use of one's own land. 
 Stopping up drains of landowners. 
 
 Cited in O'Brien v. Worcester, 172 Mass. 353, 52 N. E. 385, upholding action for 
 damages for backing up of water upon plaintiff's premises due to walling up of 
 old sewer. 
 Surface waters. 
 
 Cited in Champion v. Crandon, 84 iVis. 410, 19 L. R. A. 857, 54 N. W. 775, 
 holding action not maintainable for damages due to diversion of surface water by 
 change of street grade; Collins v. Waltham, 151 Mass. 198, 24 N. E. 327, holding 
 city not liable for overflow of surface waters from gutters upon adjacent land; 
 Byrne v. Farmington, 64 Conn. 374, 30 Atl. 138, holding town not obliged to 
 keep open surface-water sluiceway across roadway; Lynch v. Clarke, 25 R. I. 
 502, 56 Atl. 779, on liability of city for artificial stoppage of flow of water. 
 Statutory remedies. 
 
 Distinguished in Woodbury v. Beverly. 153 Mass. 247, 26 N. E. 851, holding 
 
 municipality liable for affecting flow of surface water from land by change 
 
 of street grade; Holleran v. Boston. 176 Mass. 77, 57 X. E. 220, holding remedy 
 
 for changing flow of surface water by changes for park purposes, to be statutory. 
 
 L.R.A. Au. Vol. I. 79. 
 
7 L.R.A. 156] L. R. A. CASES AS AUTHORITIES. 
 
 Liability of city for iiuisanoo. 
 
 Cited in Nevins v. Fitchburg, 174 Mass. 550, 47 L. R. A. 314, 55 N. E. 321, 
 holding city liable for nuisance caused by ending sewer in private tailrace under 
 culvert in road. 
 
 Cited in footnotes to Miles v. Worcester, 13 L. R. A. 841, which holds city 
 liable for encroachment by retaining wall on filling school yard; Long v. Elberton, 
 46 L. R. A. 428, which denies liability of city to neighboring property owners 
 for erection of prison within city limits unless so negligently maintained as to 
 constitute nuisance; Hughes v. Auburn, 46 L. R. A. 636, which denies city's lia- 
 bility for disease due to neglect of proper sanitary precautions as to sewer 
 system; Duncan v. Lynchburg, 48 L. R. A. 331, which denies city's liability for 
 nuisance by pollution of water in unauthorized operation of rock quarry outside 
 city limits. 
 Liability of city as to sewers. 
 
 Cited in Roberts v. Dover, 72 N. H. 154, 55 Atl. 895, holding city liable for 
 injury to private property from overflow of sewer; Lockwood v. Dover, 73 N, 
 H. 212, 61 Atl. 32, holding city liable for negligent construction of sewer under 
 a statute providing that city be paid for use of sewer connections and where 
 persons specially benefited must pay for same. 
 
 Cited in footnote to Nevins v. Fitchburg, 47 L. R. A. 312, which denies city's 
 right to discharge sewer into tailrace. 
 
 Cited in notes (61 L.R.A. 684, 698) on duty and liability of municipality with 
 respect to drainage; (29 Am. St. Rep. 647, 741) on municipal liability for 
 defects in and want of repair of sewers. 
 Defects in plan of construction. 
 
 Cited in Buckley v. New Bedford, 155 Mass. 66, 29 N. E. 201, holding land- 
 owner draining into sewer by permit could not recover against city for sewer 
 water backing into cellar. 
 Work of construction and repair. 
 
 Cited in Melrose v. Hiland, 163 Mass. 309, 39 N. E. 1031, holding power and 
 duty of town to repair common drain through private land same as if in high- 
 way; Norton v. New Bedford, 166 Mass. 51, 43 N. E. 1034, holding city re- 
 sponsible for personal injury due to negligence of its officials in construction of 
 sewer; Allen v. Boston, 159 Mass. 336, 38 Am. St. Rep. 423, 34 N. E. 519; 
 Hamlin v. Biddeford, 95 Me. 315, 49 Atl. 1100, holding city liable for damages 
 due to failure to keep sewer in repair; Bryant v. Westbrook, 86 Me. 455, 29 
 Atl. 1109, holding municipal officers assuming construction and repair of high- 
 ways act as public officers; Melrose v. Hiland, 163 Mass. 309, 39 N. E. 1031, 
 holding that care of drain is upon municipality, and that officials act as its 
 agents. 
 
 Distinguished in Hewett v. Canton, 182 Mass. 224, 65 N. E. 42, holding town 
 not liable for damages from surface water caused by construction of street 
 railway, under permit from selectmen. 
 Liability for damages resulting: front performance of public duty. 
 
 Cited in Hughes v. Monroe County, 79 Hun, 126, 29 N. Y. Supp. 495, holding 
 county not liable for negligent injury to servant employed in insane asylum; 
 Workman v. New York, 63 Fed. 302, holding city fire boat by duty to extinguish 
 fires, not absolved from use of ordinary care to prevent collision; Howard v. 
 Worcester, 153 Mass. 428, 12 L. R. A. 161, 25 Am. St. Rep. 651, 27 N. E. 
 11, holding city in building schoolhouse not liable for negligent injury to trav- 
 eler upon adjoining highway; Lenzen v. New Braunfels, 13 Tex. Civ. App. 369, 
 
1251 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 162 
 
 35 S. W. 341, holding city liable for negligence in maintaining waterworks 
 preventing fire from being extinguished. 
 Liability of municipality for negligence. 
 
 Cited in Johnson v. Somerville, 195 Mass. 382, 10 L.R.A. (N.S.) 721, 81 N. E. 
 268, holding city liable for injury to third person whether the injury was caused 
 by negligent act of workman or by actual wrong intent; Smith v. Gloucester, 
 201 Mass. 334, 87 X. E. 626, on nonliability of town for negligence of highway 
 surveyors. 
 
 Cited in footnote to Snider v. St. Paul, 18 L. R. A. 151, which holds city 
 not liable for negligence of agents in providing and maintaining city hall. 
 
 Cited in notes (9 L. R. A. 210) on liability of municipality for neglect of its 
 officers or agents; (19 L. R. A. 454) on distinction between public and private 
 functions of municipal corporations as to liability for negligence. 
 
 7 L. R. A. 160, JAY COUNTY v. TAYLOR, 123 Ind. 148, 23 N. E. 752. 
 Contract by public officers outrunning their terms. 
 
 Cited in Henderson v. Xew York, 65 App. Div. 183, 72 N. Y. Supp. 609, hold- 
 ing city not liable to attorney employed by toAvn three days before annexation 
 to city to test validity of annexation act ; Liggett v. Kiowa County, 6 Colo. App. 
 273, 40 Pac. 475. holding contract of county board employing purchasing agent 
 for year valid though some of board went out of office before time of con- 
 tract ended; State ex rel. Scott v. Hart, 144 Ind. Ill, 33 L. R. A. 121, 43 N. 
 E. 7, holding county commissioners cannot rent rooms in courthouse to private 
 use for term of years; Taylor v. Bosworth, 1 Ind. App. 57, 27 N. E. 115, holding 
 demurrer to answer properly sustained where contract set out had been declared 
 void as against public policy. 
 
 Cited in notes (16 L.R.A. 257) on power of public officers to make contracts 
 binding on their successors or for a term of years; (29 L.R.A. (N.S.) 656, 657) 
 on power of board to appoint officer or make contract for term extending beyond: 
 its own. 
 
 Distinguished in Pulaski County v. Shields, 130 Ind. 11, 29 N. E. 385, hold- 
 ing contract of employment of county superintendent for term of years, valid; 
 McConnell v. Arkansas Brick & Mfg. Co. 70 Ark. 597, 69 S. W. 559, holding su- 
 perintendent of penitentiary may contract for hire of convicts for ten years; 
 Picket Pub. Co. v. Carbon County, 36 Mont. 190, 13 L.R.A. (N.S.) 1115, 122 
 Am. St. Rep. 352, 92 Pac. 524, 12 A. & E. Ann. Cas. 986, holding under statute 
 and in absence of other provision a two-year contract for county printing can 
 be entered into, on expiration of preceding contract, by outgoing county board. 
 
 Disapproved in Manley v. Scott, 108 Minn. 144, 29 L.R.A. (N.S.) 652, 121 
 N. W. 628, holding board of county commissioners may make a contract with 
 an employee to extend beyond the term of office of certain board members. 
 
 7 L. R. A. 162, LOUISVILLE & N. R. CO. v. GILBERT, 88 Tenn. 430, 12 S. W. 
 
 1018. 
 Limitation of carrier's liability. 
 
 Cited in Missouri, K. & T. R. Co. v. Carter, 9 Tex. Civ. App. 698, 29 S. W. 
 565, holding shipper under duress in signing contract releasing carrier from 
 liability; Bird v. Southern R. Co. 99 Tenn. 727, 63 Am. St. Rep. 856, 42 S. W. 
 451, holding carrier cannot exempt itself from liability for its own negligence; 
 Bennitt v. Missouri P. R. Co. 46 Mo. App. 666, holding bill of lading by which 
 carrier attempted to release its liability for shipment of cotton invalid; Pacific 
 Exp. Co. v. Foley, 46 Kan. 476, 12 L. R. A. 807, 26 Am. St. Rep. 107, 26 Pac. 
 665 (dissenting opinion) majority holding receipt of carrier limiting liability 
 
7 L.R.A. 162] L. R. A. CASES AS AUTHORITIES. 1252 
 
 to certain amount proper to secure proportion between amount of responsibility 
 and freight it receives; Schaller v. Chicago v. N. R. Co. 97 Wis. 36, 71 X. W. 
 1042, holding want of consideration for special contract of exemption must be 
 shown by one claiming its nonexistence ; Missouri, K. & T. R. Co. v. Carter, 9 
 Tex. Civ. App. 688, 29 S. W. 565, holding special contract for shipment of 
 cattle not supported by consideration; Lake Erie & W. R. Co. v. Holland. 162 
 Ind. 412, 63 L.R.A. 950, 69 N. E. 138, denying right of carrier to absolve itself 
 from duty to furnish safe cars, by contract without consideration; Saunders v. 
 Southern R. Co. 62 C. C. A. 527, 128 Fed. 19, holding that carrier may reasonably 
 limit common-law liability for loss of freight or baggage not resulting from its 
 own negligence: St. Louis & S. F. R. Co. v. Brosius, 47 Tex. Civ. App. 658, 105 
 S. W. 1131, holding a contract releasing carrier from its liability is unenforce- 
 able for failure of consideration where no reduction from regular tariff rate 
 is made. 
 
 Cited in notes (10 L. R. A. 417) on exemption from liability clause in carrier's 
 contracts; (10 L. R. A. 419) on limitation of carrier's liability by contract; (13 
 L. R. A. 518) on carrier limiting responsibility by special agreement; (18 L. R. 
 A. 528) on right of common carrier to limit common-law liability by contract in 
 absence of negligence; (28 L.R.A. (N.S.) 638, 639) on effect of shipping contract 
 limiting common-law liability, signed under compulsion; (18 Am. St. Rep. 126) 
 on limiting carrier's liability; (46 Am. St. Rep. 779) on carrier's right to exact 
 special contract from shipper; (88 Am. St. Rep. 89, 90, 92, 94, 103) on limita- 
 tion of carrier's liability in bills of lading. 
 Alternative of limited and unlimited liability. 
 
 Cited in Louisville & N. R. Co. v. Turner, 100 Tenn. 222, 43 L. R. A. 142, 47 
 S. W. 223, holding passenger entitled to alternative of limited and unlimited 
 tickets; Illinois C. R. Co. v. Craig, 102 Tenn. 302, 52 S. W. 164, holding car- 
 rier can only limit its liability for transportation of freight by giving shipper 
 reasonable alternative between modes of shipment; Little Rock & F. S. R. Co. 
 v. Cravens, 57 Ark. 126, 18 L: R. A. 533, 38 Am. St. Rep. 230, 20 S. W. 803, 
 holding shipper entitled to choice between limited and unlimited liability of 
 carrier; Illinois C. R. Co. v. Lancashire Ins. Co. 79 Miss. 121, 30 So. 43, holding 
 shipper not bound by contract limiting carrier's liability when no option or 
 choice was given him; Louisville & N. R. Co. v. Sowell, 90 Tenn. 24, 15 S. W. 
 837, holding readiness to make contract of shipment other than that objected to 
 might be shown by carrier; Cleveland, C. C. & St. L. R. Co. v. Hollowell, 172 
 Ind. 470, 88 N. E. 680, holding that shipper has right to demand that carrier 
 transport goods under common law liability; Blake v. Sunkel. 148 Mo. App. 116, 
 128 S. W. 261; Louisville & N. R. Co. v. Smith, 123 Tenn. 687, 134 S. W. 866, 
 holding that before shipper can be bound by limited liability contract it must 
 appear that he had option to take common law liability contract; Baker v. 
 Boston & M. R. Co. 74 N. H. Ill, 124 Am. St. Rep. 937, 65 Atl. 386, 12 A. & E. 
 Ann. Cas. 1072, holding contract of indemnity to carrier void where carrier 
 refused to give service under its public duty; Nashville, C. & St. L. R. Co. v. 
 Stone, 112 Tenn. 363, 105 Am. St. Rep. 955, 79 S. W. 1031, holding carrier may 
 make a valid contract of shipment limiting its common-law liability if such 
 contract is fairly obtained and it offers or is ready to carry on its ordinary 
 liability. 
 
 7 L. R. A. 170, O'LEARY v. FIRE & WATER COMRS. 79 Mich. 281, 19 Am. St. 
 
 Rep. 169, 44 X. W. 608. 
 Inability of municipality or officer for servants' negligence. 
 
 Approved in Freel v. Crawfordsville, 142 Ind. 29, 37 L. R. A. 304, 41 N. E. 
 
1253 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 172 
 
 312, holding school corporation not liable for agent's negligence where no pro- 
 vision for payment of damages for personal injuries made; Nicholson v. Detroit, 
 129 Mich. 250, 56 L. R. A. 603, 88 N. W. 695, holding city not liable for in- 
 fection of employee upon hospital building, in absence of statute. 
 
 Cited in Moynihan v. Todd, 188 Mass. 305, 108 Am. St. Rep. 473, 74 N. E. 
 367, holding superintendent of streets, under statute, liable for injuries caused 
 by his personal negligence in performance of his duty and not for negligence of 
 his servants; Scharman v. Bay County Bridge Commission, 158 Mich. 87, 122 
 X. W. 1098, on the nonsubjection of a public service fund to diminution by 
 payment of damages for personal injuries; Kilts v. Kent County, 162 Mich. 
 648, L.R.A.(N.S.) , 127 N. W. 821, holding that board of supervisors in 
 constructing water system for poor farm perform governmental function, and 
 are not liable for negligent construction. 
 
 Cited in notes (20 Am. St. Rep. 868) on municipal liability for negligence 
 of officer; (23 Eng. Rul. Cas. 51) on liability of municipality for negligence of 
 officers in workhouse causing personal injuries to inmates. 
 Statutory liability of officers. 
 
 Cited in Miller v. Detroit, 156 Mich. 635, 132 Am. St. Rep. 537, 121 N. W. 
 490, 16 A. & E. Ann. Cas. 832, holding statutory liability for negligent main- 
 tenance of physical surface of streets does not include injury from falling limb 
 from live tree on street. 
 
 7 L. R. A. 172, MYHAN v. LOUISIANA ELECTRIC LIGHT & P. CO. 41 La. 
 
 Ann. 964, 17 Am. St. Rep. 436, 6 So. 799. 
 Master's liability for latent and patent defects. 
 
 Cited in Townsend v. Langles, 41 Fed. 920, holding master not liable for in- 
 jury to employee brushing off cogwheels the danger of which is apparent; Clem- 
 ents v. Louisiana Electric Light Co. 44 La. Ann. 695, 16 L. R. A. 44. 32. Am. St. 
 Rep. 348, 11 So. 51, holding contributory negligence not shown from latent defect 
 of improperly insulated wires; Bomar v. Louisiana North & South R. Co. 42 
 La. Ann. 989, 8 So. 478, holding railroad liable for injury to conductor coupling 
 cars with defective drawhead; Meyers v. Illinois C. R. Co. 49 La. App. 27, 21 
 So. 120, holding mere tagging of cars as defective insufficient to relieve master 
 of liability; Harvey v. Louisiana Western R. Co. 114 La. 1073, 38 So. 859, 
 holding railroad liable for injury caused to expressman working on the premises, 
 by obstruction around which he had to pass in poorly lighted place, in doing 
 which he was killed by passing train at an unusual rate of speed. 
 
 Cited in footnotes to Sweet v. Ohio Coal Co. 9 L. R. A. 861, which holds 
 master mav conduct business in own way, though other method less hazardous; 
 Tennessee Coal, Iron & R. Co. v. Kyle. 12 L. R. A. 103, which holds running 
 freight train without cow-catcher negligence; St. Louis, A. & T. R. Co. v. Trip- 
 lett, 11 L. R. A. 773, which holds master's duty to protect repair track not ful- 
 filled by adopting rule sufficient if faithfully observed by employees. 
 
 Cited in notes (8 L. R. A. 819) on vice principals and agents; (32 L. R. A. 
 352) on liability of electric company to employee for injury caused by electric 
 shock; (12 L.R.A. 344) on duty of master to secure safety of servant: (100 
 Am. St. Rep. 537) on liability of electric corporations to employee for injuries 
 from crossing or contact of wires. 
 Master's knowledge or notice of danger. 
 
 Cited in Dobson v. New Orleans & W. R. Co. 52 La. Ann. 1133, 27 S. W. 670, 
 holding railroad liable for injury due to collision of train with cow on track 
 contributed to by conductor's abandonment of train; Carter v. Fred W. Dubach 
 
7 L.R.A. 172] L. R. A. CASES AS AUTHORITIES. 1254 
 
 Lumber Co. 113 La. 245, 36 So. 952, holding master liable for failure to show 
 inexperienced servant the dangers connected with the work assigned which were 
 in the actual knowledge of master; Whitworth v. South Arkansas Lumber Co. 
 121 La. 900, 46 So. 912, holding that where injury to servant is caused by defect 
 that should have been detected though, it was not, the master is liable. 
 
 Cited in note (41 L. R. A. 46) on knowledge as element of employer's liability 
 to injured servant. 
 Notification of <liuier of service. 
 
 Cited in Gaulden v. Kansas City S. R. Co. 106 La. 411, 30 So. 889, holding 
 master liable for not informing servant of danger of service as well as defect of 
 appliance; Erslew v. New Orleans & N. E. R. Co. 49 La. Ann. 102, 21 So. 153, 
 holding railroad liable for death of brakeman on top of car struck by guy wire 
 negligently left by company; Myers v. Illinois R. Co. 49 La. Aim. 27, 21 So. 120, 
 holding railroad liable for injury to brakeman coupling cars known by it to be 
 defective, without informing him; Stucke v. New Orleans R. Co. 50 La. Ann. 198, 
 23 So. 342, holding it master's duty to inform servant of danger of work in pit 
 over which electric cars ran; James v. Rapides Lumber Co. 50 La. Ann. 728, 44 
 L. R. A. 51, 23 So. 469, holding master of sawmill liable for injury to employee 
 suddenly ordered into dangerous position without warning of danger; Daly v. 
 Kiel, 106 La. 174, 30 So. 254, holding warning to keep one eye on engineer and 
 two on bank of gravel pit not sufficient intimation of danger to new hand; 
 McCarthy v. Whitney Iron Works Co. 48 La. Ann. 981, 20 So. 171, holding 
 master not liable for injury resulting from iron falling on employee while level- 
 ling bottom of pit; Thompson v. New Orleans & C. R. Co. 108 La. 56, 32 So. 177, 
 holding railroad liable for injury resulting from defectively insulated wire of 
 which its officers had not warned -all employees; Gracia v. Maestri Furniture 
 Mfg. Co. 114 La. 375, 38 So. 275, holding employer liable for injury to 16-year- 
 old boy caused by placing him to work at a dangerous circular saw without 
 properly instructing and warning him; Parker v. Crowell & S. Lumber Co. 115 
 La. 467, 39 So. 445, holding a general instruction to inexperienced servant to 
 keep out of danger without instructing him how to avoid the dangers does not 
 relieve master. 
 
 Cited in notes (8 L.R.A. 636) on knowledge by servant of defective and dan- 
 gerous machinery; (20 Am. St. Rep. 40) on duty of master to notify servant 
 of unusual and peculiar dangers of service. 
 Assumption of risk. 
 
 Cited in Fisher v. Prarie, 26 Okla. 350, 109 Pac. 514, holding that servant 
 cannot be required to assume risk from dangerous employment, unless he is 
 cautioned sufficiently to enable him to reasonably comprehend dangers. 
 
 Cited in notes (97 Am. St. Rep. 889, 893) on assumption of risk by employee 
 accepting extra hazardous duties; (100 Am. St. Rep. 538) on assumption of 
 risk by employees of electric company; (4 L.R.A. (N.S.) 991) on servant's as- 
 sumption of risk of danger imperfectly appreciated; (17 L.R.A. (X.S.) 77) on 
 servant's assumption of risk from latent danger or defect. 
 Contributory neg-lig-ence. 
 
 Cited in Potts v. Shreveport Belt R. Co. 110 La. 6, 98 Am. St. Rep. 452, 34 
 So. 103, holding lineman not unnecessarily exposing himself not guilty of con- 
 tributory negligence in stringing dangerous wires. 
 Measure of damages. 
 
 Cited in Murdock v. New York & B. Despatch Exp. Co. 167 Mass. 550, 46 
 N. E. 57, holding testimony of average monthly wages of employee properly 
 admitted. 
 
1255 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 176 
 
 Cited in note (17 L. R. A. 78) on measure of damages for death caused by 
 negligence. 
 Survival of action. 
 
 Cited in American Sugar Ref. Co. v. Johnson, 9 C. C. A. 120, 13 U. S. App. 
 81, 60 Fed. 513, holding action for damages for death due to acts of omission 
 survives under statute. 
 
 7 L. R. A. 176, PORTER v. POWELL, 79 Iowa, 151, 18 Am. St. Rep. 353, 44 
 
 X. W. 295. 
 Parent's liability for Infant's snpport. 
 
 Cited in Manning v. Wells, 8 Misc. 648, 29 N. Y. Supp. 1044, holding father 
 liable for necessaries furnished to infant driven from home and unable to pro- 
 vide same; De Wane v. Hansow, 56 111. App. 577, holding parent liable for 
 medical care of child living apart with his consent, which parent refuses to fur- 
 nish; Hardy v. Eagle, 25 Misc. 473, 54 N. Y. Supp. 1045, holding mere weekly 
 payments of $5 to child living apart do not exempt from liability for his 
 necessaries; Hopkinson v. Knapp & S. Co. 92 Iowa, 333, 60 N. W. 653, holding 
 parent damaged by death of infant, where latter temporarily controlling income 
 and not emancipated; Kubic v. Zemke, 105 Iowa, 272, 74 N. W. 748, holding 
 verdict cannot be directed in action for minor's necessaries, where evidence con- 
 flicting as to emancipation; Cushman v. Hassler, 82 Iowa, 297, 47 N. W. 1036, 
 holding father not liable for support of child leaving him without cause or 
 consent to live with divorced mother, where father denied liability thereafter; 
 Duzan v. Myers, 30 Ind. App. 233, 96 Am. St. Rep. 341, 65 N. E. 1046, holding 
 children of former marriage entitled to participate in fund received on account 
 of death of parent: Goulding v. Phillips, 124 Iowa, 498, 100 N. W. 516, holding 
 illegitimate minor child may sue for death of putative father though not legiti- 
 matized by him under statute compelling parent to support his illegitimate 
 child; Guthrie County v. Conrad, 133 Iowa, 174, 110 N. W. 454, holding that 
 parent is liable for hospital expense incurred by county in treating insane minor 
 child: Brosius v. Barker, 154 Mo. App. 662, 136 S. W. 18, holding that father 
 is under legal obligation to support his infant child. 
 
 Cited in footnote to Fulton v. Fulton, 29 L. R. A. 678, which denies divorced 
 wife's right to recover from husband for necessaries furnished children In her 
 custody. 
 
 Cited in notes (57 L.R.A. 729) on parent's duty to support child as affected 
 oy child's interest in trust estate or other property; (57 L.R.A. 729) on parent's 
 duty to support child as affected by child's interest in trust or other property; 
 (4 L.R.A. (X.S.) 52) on duty to provide medical assistance for child; (40 
 L.R.A.(X.S.) 490) on liability of parent for necessaries furnished child living 
 away from home. 
 
 Distinguished in Cooper v. McXamara, 92 Iowa, 244, 60 N. W. 522, holding 
 parent liable for infant's board and lodging notwithstanding ability to work, 
 control of earnings, and parent's ability to keep at home, where consent to his 
 absence not controverted. 
 Emancipation of minor child. 
 
 Cited in Duzan v. Myers, 30 Ind. App. 233, 96 Am. St. Rep. 341, 05 X*. E. 
 1046. holding minor son nineteen years of age entitled to share in proceeds from 
 personal injury action for death of his father, though he was not at the time 
 living at home or dependent on him for support: Bristor v. Chicago & X'. W. 
 R. Co. 128 Iowa, 482, 104 X*. W. 487, holding that father may emancipate his 
 minor child by parol or writing, and emancipation may be proven by circum- 
 stantial evidence or implication from conduct. 
 
7 L.R.A. 180] L. R. A. CASES AS AUTHORITIES. 1256 
 
 7 L. R. A. 180, RUSSELL v. TATE, 52 Ark. 541, 20 Am. St. Rep. 193, 13 
 
 S. W. 130. 
 Remedy for illegal appropriation or payment. 
 
 Cited in Wiles v. Mclntosh County, 10 N. D. 599, 88 N. W. 710, holding 
 county officer liable for over-payment made because of his over-estimate; Fred- 
 erick v. Douglas County, 96 Wis. 425, 71 N. W. 798, refusing to require attorney 
 rendering valuable services in good faith to county, to return payments therefor, 
 although hiring illegal; Buyck v. Buyck, 112 Minn. 100, 140 Am. St. Rep. 464, 
 127 N. W. 452, holding that town treasurer, who pays out money upon orders 
 issued to pay illegal claims, knowing of the facts, is liable to town for return 
 of money; State ex rel. Atty. Gen. v. Huston, 27 Okla. 617, 34 L.R.A.(N.S-) 
 388, 113 Pac. 190, holding that district court has power to enjoin state officers, 
 other than governor, from using public funds contrary to law. 
 
 Cited in footnotes to State ex rel. McCain v. Metschan, 41 L. R. A. 692, which 
 authorizes injunction against expending public money at place prohibited by 
 Constitution; Ada County v. Bullen Bridge Co. 36 L. R. A. 367, which denies 
 right to maintain equitable action to cancel county warrants; State ex reL 
 Taylor v. Pennoyer, 25 L. R. A. 862, which denies right to enjoin building of 
 state institution at other place than Constitution requires. 
 Action by taxpayer. 
 
 Cited in Kellogg v. School Dist. No. 10, 13 Okla. 303, 74 Pac. 110, holding 
 action maintainable by taxpayer to restrain school district from contracting 
 unauthorized debt; Kimble v. Franklin County, 32 Ind. App. 388, 66 N. E. 1023, 
 on right of taxpayer to sue for recovery of misappropriated public funds in 
 the absence of statute. 
 
 Cited in footnotes to Zuelly v. Casper, 63 L.R.A. 133, which upholds right 
 of taxpayer of county to bring suit for restoration to treasury of money illegally 
 appropriated as fees of officers; Johnson v. Black, 68 L.R.A. 264, which sustain* 
 jurisdiction of equity over suit by taxpayer to compel restoration of county 
 funds illegally withdrawn by order of board of supervisors. 
 
 Cited in notes (14 L.R.A. (N.S.) 299) on right of taxpayer to maintain suit 
 to enforce claim of municipality; (36 L.R.A. (N.S.) 19) on taxpayer's right to 
 enjoin unlawful municipal expenditures. 
 Appropriation of pnblic funds as bonus or aid. 
 
 Cited in Luxora v. Jonesboro, L. C. & E. R. Co. 83 Ark. 277, 13 L.R.A.(N.S.) 
 158, 119 Am. St. Rep. 139, 103 S. W. 505, holding an appropriation of tax funda 
 to a railroad company as an inducement to build road into the town appro- 
 priating is absolutely void. 
 Recovery of public funds paid by mistake. 
 
 Cited in Kerr v. Regester, 42 Ind. App. 380, 85 N. E. 790, holding that city 
 may recover money paid to county auditor in good faith under mistake of law. 
 Powers of municipalities. 
 
 Cited in note (21 Am. St. Rep. 373) on powers of municipal corporations. 
 Liability of municipal officers. 
 
 Cited in note (95 Am. St. Rep. 81) on liability of municipal officers for 
 ministerial acts. 
 
 7 L. R. A. 183, STATE v. FULKER, 43 Kan. 237, 22 Pac. 1020. 
 State control of sale of imported intoxicants. 
 
 Cited as overruled in State ex rel. Cochran v. Winters, 44 Kan. 727, 10 L. 
 It. A. 618, 25 Pac. 235, holding state cannot control sale of intoxicants in original 
 package of importation. 
 
1257 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 189 
 
 Cited in footnotes to State v. Gerhardt, 33 L. R. A. 313, which upholds require- 
 ment for locking doors of room where liquor sold during prohibited hours; 
 Bennett v. Pulaski, 47 L. R. A. 278, which sustains ordinance for closing saloons 
 between ten and four at night and on Sundays, hut not requirement for removing 
 curtains on front doors and windows; State ex rel. Galle v. New Orleans, 67 
 L.R.A. 70, which denies right to refuse liquor license on objection of minority 
 property holders or on ground that no more barrooms are needed. 
 
 Cited in note (9 L. R. A. 782) concerning police power of state as to intox- 
 icating liquors. 
 
 7 L. R. A, 189, SCHONFIELD v. TURNER, 75 Tex. 324, 12 S. W. 626. 
 Interest in, and asslgnability of, benefit certificate. 
 
 Cited in Cawthon v. Perry, 76 Tex. 385, 13 S. W. 268, holding creditor pur- 
 chasing insurance policy upon debtor's life, entitled to debt, premiums paid and 
 interest, only; Goldbaum v. Blum, 79 Tex. 641, 15 S. W. 564, holding creditor 
 collecting life insurance upon assigned policy, entitled only to amount of debt, 
 premiums paid and costs of collection; Binkley v. Jarvis, 102 111. App. 63, hold- 
 ing benefit certificate assignable to creditor to extent of debt; Exchange Bank 
 T. Loh, 104 Ga. 453, 44 L. R. A. 376, 31 S. E. 459, holding creditor's insurable 
 interest in debtor's life cannot exceed secured indebtedness; Supreme Lodge, 
 K. of H. v. Metcalf, 15 Ind. App. 141, 43 N. E. 893, holding speculative pur- 
 chaser of benefit certificate procured by fraud, entitled to recover money paid ; 
 Hanna v. Hanna, 10 Tex. Civ. App. 101, 30 S. W. 820, holding insured's mother 
 collecting benefit certificate, trustee for wife and child, where latter of insurer's 
 beneficiary class; Mayher v. Manhattan L. Ins. Co. 87 Tex. 172, 27 S. W. 124, 
 holding insured's heirs entitled to proceeds of policy made payable to one with- 
 out insurable interest; Cheeves v. Anders, 87 Tex. 291, 47 Am. St. Rep. 107, 28 
 13. W. 274, holding partner without insurable interest after partnership dis- 
 solved; Knights & Ladies of Honor v. Burke, 4 Tex. App. Civ. Cas. (Willson) 
 235, raising, without deciding, question as to equitable claim of beneficiary with- 
 out insurable interest, in proceeds of policy for premiums he paid; Cameron v. 
 Barcus, 31 Tex. Civ. App. 49, 71 S. W. 42.3, holding community debt creditor 
 without insurable interest in life of the wife; Supreme Lodge, K. & L. of H. v. 
 Menkhausen, 209 111. 283, 70 N. E. 567, holding insurance benefit recoverable by 
 Tieirs where insured is murdered by beneficiary; Kelly v. Searcy, 100 Tex. 571, 
 102 S. W. 100, holding the payer of premiums on policy under contract for 
 reimbursement after death of insured is entitled to such reimbursement where 
 the beneficiaries named are dead and proceeds go to minor children. 
 
 Cited in footnotes to Mullen v. Reed, 24 L. R. A. 664, which holds widow not 
 an heir at law; Schmidt v. Iowa K. of P. Ins. Asso. 11 L. R. A. 205, which 
 holds indorsement by third person on oral request of member sufficient change of 
 beneficiary; Clark v. Hirschl, 9 L. R. A. 841, which holds beneficiary changed 
 though letter announcing change to association not received till member dead; 
 Simcoke v. Grand Lodge, A. O. of U. W. 15 L. R. A. 114, which holds granting of 
 new beneficiary certificate precludes question as to sufficiency of attestation to 
 signature to application for change. 
 
 Cited in notes (9 L. R. A. 661) as to assignment of life insurance policy; 
 (25 L. R. A. 628, 630) as to right to take life insurance for benefit of stranger; 
 ( 30 L. R. A. 596 ) as to who are heirs within meaning of life insurance policies ; 
 (50 L. R. A. 554) as to divorce as affecting wife's right to insurance upon her 
 husband's life; 13 L.R.A. (N.S.) 944) on validity of assignment of interest in 
 life insurance to one paying premiums; (19 Am. St. Rep. 791) on assignment 
 
7 L.R.A. 189] L. R. A. CASES AS AUTHORITIES. 125? 
 
 of benefits in mutual benefit association; (87 Am. St. Rep. 508, 511, 518) on. 
 assignment of life insurance policies. 
 
 Distinguished in Overhiser v. Overhiser, 14 Colo. App. 9, 59 Pac. 75, holding 
 heirs without interest in benefit certificate payable to wife or in event of her 
 previous death, to insured's heirs, where wife divorced ; United States Mut. AccL 
 Asso. v. Hodgkin, 4 App. D. C. 526, upholding recovery by beneficiary without 
 insurable interest on nonwagering policy, where no other parties before court; 
 Grego v. Grego, 78 Miss. 445, 28 N. W. 817, refusing to deprive wife of property 
 in ordinary life policy paid for by husband who obtains divorce. 
 
 Disapproved in Steinback v. Diepenbrock, 158 N. Y. 26, 44 L. R. A. 418, 70 
 Am. St. Rep. 424, 52 N. E. 662, holding assignee without insurable interest, may 
 recover upon full amount of assigned policy; Gordon v. Ware Nat. Bank. 67 
 L.R.A. 553, 65 C. C. A. 580, 132 Fed. 446, holding that beneficiary having an 
 insurable interest may assign certificate to person having no such interest if 
 done bona fide with no intent to get around the law against wager policies. 
 
 Interest of insured In. 
 
 Cited in Coleman v. Anderson, 98 Tex. 575, 86 S. W. 730, holding certificate 
 vests no property right in insured but that he merely has right of appointment 
 and change of appointment of beneficiary at any time subject to by-laws of 
 society; Grand Lodge, A. O. U. W. v. Jones, 47 Tex. Civ. App. 542, 106 S. W. 
 184, on the rule that member of benefit society has no property right in the 
 benefit but merely the right to name beneficiary from designated classes. 
 Persona entitled to proceeds from benefit certificate. 
 
 Cited in Supreme Lodge K. L. H. v. Menkhausen, 209 111. 283, 65 L.R.A. 511, 
 101 Am. St. Rep. 239, 70 N. E. 567, holding named beneficiary in certificate of 
 insurance not entitled to proceeds as beneficiary or otherwise where he kills 
 insured; Murphy v. Nowak, 223 111. 311, 7 L.RA.(N.S.) 398, 79 N. E. 112, 
 holding a girl adopted at age of three and kept until twenty years of age as 
 the daughter of insured is during that time a dependent entitled under charter 
 and by-laws of society to be a beneficiary. 
 
 Cited in notes (44 Am. St. Rep. 409) on insurance payable to "heirs;" (17 
 L.R.A.(N.S.) 1086) on disposition of benefit fund on failure of beneficiary. 
 Insurable interest. 
 
 * Cited in Wilton v. New York L. Ins. Co. 34 Tex. Civ. App. 158, 78 S. W. 403 r 
 holding a niece who has no expectation of pecuniary benefit from her uncle 
 outside of a few not valuable gifts from time to time has no insurable interest 
 in his life. 
 
 Cited in note (128 Am. St. Rep. 316, 317) on life insurance in favor of 
 persons having no insurable interest. 
 
 Of divorced wife. 
 
 Cited in Hatch v. Hatch, 35 Tex. Civ. App. 376, 80 S. W. 411, holding divorce 
 whether for cause of husband or not ends the insurable interest of wife in life 
 of husband except in so far as she has paid premiums. 
 
 Cited in note (3 L.R.A. (N.S.) 480) on effect of divorce on rights of bene- 
 ficiary in insurance policy. 
 
 7 L. R. A. 191, STANDARD OIL CO. v. LANE, 75 Wis. 636, 44 N. W. 644. 
 Materials \vitbin protection of mechanic's lien laws. 
 
 Cited in A. M. Holter Hardware Co. v. Ontario Min. Co. 24 Mont. 201, 61 
 Pac. 3, holding oil, grease, and gasoline for fuel not lienable within mechanic's 
 lien law; Cincinnati, R. & M. R. Co. v. Shera, 36 Ind. App. 321, 73 N. E. 293 r 
 holding persons furnishing coal consumed in operation of steam shovel, not 
 
1259 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 193 
 
 entitled to lien on user's right of way and franchise under statute; Builders' 
 Material Co. v. Johnson, 158 111. App. 414, holding that lumber used in making 
 moulds for concrete building is not covered by mechanic's lien law; Barker & S. 
 Lumber Co. v. Marathon Paper Mills Co. 146 Wis. 23, 36 L.R.A. (X.S.) 880, 
 130 N. W. 866, holding that lumber, piling timbers and hardware used in con- 
 struction of cofferdam used in holding back water during construction of per- 
 manent dam are within meaning of mechanic's lien law. 
 
 Cited in footnote to Hercules P. Co. v. Knoxville, L. & J. R. Co. 67 L.R.A. 
 487, which sustains right to lien for explosives consumed in grading roadbed 
 or driving tunnel for railroad company. 
 
 Cited in note (36 L.R.A. (X.S.) 869) on mechanics' lien; materials consumed 
 in process of work, but not becoming part of structure. 
 
 7 L. R. A. 193, Re WASHINGTON STREET, 132 Pa. 257, 19 Atl. 219. 
 Object and basis of classification. 
 
 Cited in Edmonds v. Herbrandson, 2 N. D. 274, 14 L. R. A. 725, footnote 
 p. 725, 50 X. W. 970, holding act arbitrarily classifying counties, for relocation 
 of county seats, unconstitutional; Perkins v. Philadelphia, 156 Pa. 575, 33 
 W. N. C. 49, 27 Atl. 356 (dissenting opinion) majority holding act, which can 
 apply to only one city, unconstitiitional ; Re Toronto Street, 26 Pa. Co. Ct. 97, 
 relating to remedies open to Philadelphians to recover damages for opening of 
 streets; Scranton v. Whyte, 148 Pa. 425, 30 W. N. C. 76, 23 Atl. 1043, holding 
 laws limited to single class of cities not local, if they relate to the regulation 
 of municipal affairs; Longview v. Crawfordsville, 164 Ind. 122, 68 LJl.A. 625, 
 73 X. E. 78, 3 A. & E. Ann. Cas. 496, holding that a classification of cities for 
 governing purposes to be valid must not be unnatural, artificial, arbitrary or 
 founded alone upon isolation. 
 
 Distinguished in Shaaber v. Reading, 133 Pa. 653, 19 Atl. 419, upholding act 
 relating to the opening of streets by cities of the third class. 
 Constitutional classification. 
 
 Cited in Safe Deposit & T. Co. v. Fricke, 152 Pa, 240, 31 W. N. C. 328, 25 
 Atl. 530, holding classification unconstitutional unless relating to exercise of 
 corporate powers; Lehigh Valley Coal Co.'s Appeal, 164 Pa. 50, 30 Atl. 210, 
 holding general act permitting taxpayers to contract for making at their own 
 expense the roads, constitutional; Bennett v. Xorton, 171 Pa. 238, 32 Atl. 1112, 
 Affirming 7 Kulp, 460. holding act relating to purchase of land for courthouses 
 unconstitutional although not originally applicable to coextensive counties and 
 cities; Re Reading's Constables, 8 Pa. Co. Ct. 102, holding act providing for 
 election of constables in cities of the second and third classes constitutional; 
 Shenk v. McKennan, 11 Pa. Super. Ct. 88, upholding act relating to regulation 
 of buildings in cities of the second class; Campbell v. Indianapolis, 155 Ind. 
 204, 57 N. E. 920, holding general act concerning schools in cities of specified 
 population, constitutional although applying to but one city when it takes effect; 
 Beltz v. Pittsburg, 34 Pittsb. L. J. X. S. 198, holding constitutional, act pro- 
 viding for licensing plumbers in cities of second class; Kittanning Poor Dist. 
 v. Armstrong County, 34 Pa. Co. Ct. 223, 17 Pa. Dist. R. 674, holding an act 
 constitutional providing for support of certain classes of indigent poor by coun- 
 ties; Foering v. Witzel, 15 Pa. Dist. R. 887, 10 Xortli Co. Rep. 225, 32 Pa. Co. 
 Ct. 398, holding certain acts related to the exercise of corporate powers and 
 the management of municipal business. 
 
 Cited in footnote to Com. ex rel. Jones v. Blackley, 52 L. R. A. 367, which 
 sustains classification of townships by density of population. 
 
7 L.R.A. 193] L. R. A. CASES AS AUTHORITIES. 1260 
 
 Unconstitutional classification. 
 
 Cited in Re Wyoming Street, 137 Pa. 503, 27 W. N. C. 138, 21 Atl. 74, holding 
 act affecting cities of one class, but not relating to any subject under municipal 
 contract, unconstitutional; Pittsburgh's Petition, 138 Pa. 435, 27 W. N. C. 462, 
 21 Atl. 757, holding act relating to municipal lien practice in cities of second 
 class, unconstitutional; Philadelphia v. Westminster Cemetery Co. 162 Pa. 107, 
 34 W. N. C. 363, 29 Atl. 349, holding act forbidding establishment of cemeteries 
 within 1 mile of limits of cities of the first class, unconstitutional: Van Loon v. 
 Engle, 171 Pa. 165, 37 W. N. C. 245, 33 Atl. 77, holding act relating to taxes, 
 excepting cities of the first, second, and fourth classes, unconstitutional ; Chal- 
 fant v. Edwards, 173 Pa. 250, 33 Atl. 1048, holding an act relating to schools in 
 cities of the second class, unconstitutional; Com. ex rel. Fell v. Gilligan, 8 Kulp, 
 567, holding act relating to government of schools in cities of the third class, un- 
 constitutional; Litzenberg v. Allentown School Dist. 6 Northampton Co. Rep. 
 151, holding act relating to taxation for school and building purposes in cities of 
 the third class, unconstitutional; Baker v. McKee, 20 Pa. Ct. 12, 6 Pa. Dist. R. 
 600, holding part of act requesting school vouchers to be signed by city comptrol- 
 ler, unconstitutional; Re Knox Street, 12 Pa. Super. Ct. 538, Affirming 21 Pa. 
 Co. Ct. 587, 7 Pa. Dist. R. 502, 43 W. N. C. 11, holding act relating to jurors in 
 any county co-extensive in boundary with city of the first class, unconstitutional; 
 State ex rel. Sanderson v. Mann, 76 Wis. 480, 45 N. W. 526, holding estate tax 
 general in form but applicable to but one county, unconstitutional; Wagner v. 
 Milwaukee County, 112 Wis. 608, 88 N. W. 577, holding act indirectly made ap- 
 plicable to only one county by reference to value of taxable property, unconstitu- 
 tional ; Louisville v. Kuntz, 104 Ky. 590, 47 S. W. 592, holding six months' limi- 
 tation as to actions against cities of the first class, unconstitutional; Ashworth 
 v. Pittsburg R. Co. 231 Pa, 543, 80 Atl. 981, holding that act of June 7, 1907, 
 to regulate rate of fare on street railways in cities of second class is void as 
 special legislation because involving improper classification of cities; Davis v. 
 Beers, 12 Pa. Dist. R. 437, on arbitrary classification for purpose of making laws 
 applicable thereto; Thatcher v. York County, 13 Pa. Dist. R. 71, holding a 
 statute providing for appointment of tax collectors of state and county taxes 
 in cities of third class to be unconstitutional; Beltz v. Pittsburg, 26 Pa. Super. 
 Ct. 69, holding classification void if it relates to subjects not included in its 
 purpose, or excludes any member of the class. 
 
 Cited in footnotes to Sutton v. State, 33 L.R.A. 589, which holds classification 
 of counties according to previous census without respect to actual population 
 void: Longview v. Crawfordsville, 68 L.R.A. 622, which holds void classification 
 of cities for purpose of legislation so as to make particular law conferring power 
 to annex territory applicable to those having population between six and seven 
 thousand. 
 Power of courts to declare IRYVS unconstitutional. 
 
 Cited in State ex rel. Atty. Gen. v. Cunningham, 81 Wis. 478, 15 L.R.A. 566, 
 51 N. W. 724, holding power to declare acts of legislature unconstitutional inher- 
 ent in all courts of last resort in United States. 
 Legislative discretion. 
 
 Cited in Newell v. Bradford City, 18 Pa. Co. Ct. 468, holding without abuse of 
 discretion courts will not interfere with municipal council's choice of school site. 
 Law partly good and partly bad. 
 
 Cited in Rothermel v. Meyerle, 136 Pa. 265, 9 L. R. A. 368, 3 Inters. Com. Rep. 
 318, 20 Atl. 583, holding if unconstitutional part of law is vital to the whole act, 
 the whole must fall. 
 
3261 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 200 
 
 Corporate powers. 
 
 Cited in Livingston v. Wolf, 136 Pa. 533, 27 W. N. C. 10, 20 Am. St. Rep. 936, 
 20 Atl. 551, holding footways under municipal control; Com. v. Hanley, 15 Pa, 
 Super. Ct. 274, holding burial of the dead proper matter of municipal regula- 
 tion. 
 Repeal of special laws. 
 
 Cited in Reading v. Shepp, 2 Pa. Dist. R. 139, holding in general laws' intent to 
 repeal local laws should plainly appear. 
 Special legislation. 
 
 Cited in Re Toronto Street, 10 Pa. Dist. R. 350, as an instance of unconstitu- 
 tional local legislation; Engel's Appeal, 21 Pittsb. L. J. (N. S.) 219, holding 
 void, act for improvement of cities of second class. 
 
 Cited in footnotes to Stockton v. Powell, 15 L. R. A. 42, which holds courts with- 
 out power to inquire as to notice of application to legislature for local legisla- 
 tion; State v. Elizabeth, 23 L. R. A. 525, which holds invalid special statute dis- 
 criminating between municipalities already having and those not having race- 
 course; Hamilton County v. Rasche Bros. 19 L. R. A. 584, which holds statute as 
 to taxes not applying to all parts of state, unconstitutional; Milwaukee County 
 v. Isenring, 53 L. R. A. 635, which holds act regulating sheriff's fees for particu- 
 lar county, local. 
 
 7 L. R. A. 200, AMERICAN TELEPH. & TELEG. CO. v. SMITH, 71 Md. 535, 18 
 
 Atl. 910. 
 Additional servitudes of pole lines and -wires. 
 
 Cited in Phillips v. Postal Teleg. Cable Co. 130 N. C. 524, 89 Am. St. Rep. 868, 
 41 S. E. 1022, and Hodges v. Western U. Teleg. Co. 133 N. C. 234, 45 S. E. 572, 
 holding telegraph company's line on railroad's right of way, additional servi- 
 tude; Krueger v. Wisconsin Teleph. Co. 106 Wis. 108, 50 L. R. A. 304, 81 N. W. 
 1041 ; and Donovan v. Allert, 11 N. D. 296, 58 L. R. A. 779, 95 Am. St. Rep. 720, 
 91 N. W. 441, holding telephone poles additional servitude upon street; Jaynes v. 
 Omaha Street R. Co. 53 Neb. 649, 39 L. R. A. 757, 74 N. W. 67, holding poles and 
 wires of electric railway additional servitude upon street; Payne v. Kansas & A. 
 Valley R. Co. 46 Fed. 555, holding approach for wagon and foot-passenger bridge, 
 additional servitude upon land taken for rail and telegraph lines; Gosgriff v. 
 Tri-State Teleph. Co. 15 N. D. 218, 5 L.R.A. (N.S.) 1146, 107 N. W. 525, holding 
 that United States statutes permitting companies to put up telegraph poles on 
 post roads do not affect the right of land owners abutting the roads to recover 
 damages for the additional burden imposed thereby; Canadian P. R. Co. v. 
 Moosehead Teleph. Co. 106 Me. 367, 29 L.R.A. (X.S.) 706, 76 Atl. 885, 20 Ann. 
 Cas. 721, holding that location of telephone line upon railroad right of way is 
 a taking of it, and imposes additional burden for which compensation may be 
 exacted; Baltimore County Water & Electric Co. v. Dubreuil, 105 Md. 428, 9 
 L.R.A. (N.S.) 686, 66 Atl. 439, holding that the use of country roads by private 
 corporation for laying pipes is an additional servitude for which the abutting" 
 owners may have compensation, such use not being in contemplation when the 
 easement to the public was granted; Maryland Teleph. & Teleg. Co. v. Ruth, 106 
 Md. 653, 14 L.R.A. (N.S.) 430, 124 Am. St. Rep. 506, 68 Atl. 358, 14 A. & E. 
 Ann. Cas. 576. holding owner or lessee of lot adjoining private alley may after 
 notice cut down telephone pole placed on edge of lot without right acquired by 
 contract or condemnation; Canton v. Canton Cotton Warehouse Co. 84 Miss. 
 292. 65 L.R.A. 567, 105 Am. St. Rep. 428, 36 So. 266, on the rule that telegraph 
 lines on railway right of way for railroad purposes are not an additional servi- 
 tude entitling abutting owners to compensation; Portland v. Metzger, 58 Or. 
 
7 L.R.A. 200] L. R. A. CASES AS AUTHORITIES. 12G2 
 
 281, 114 Pac. 106, holding that grant to city of right of way for pipe lines 
 extending distance of 40 miles, grants city right to maintain telephone line 
 convenient for proper maintenance of pipe line; Pittock v. Central District & 
 Printing Teleg. Co. 31 Pa. Super. Ct. 596, 36 Pittsb. L. J. N. S. 213, holding 
 a telephone company having slightly or no connection with railroad business 
 cannot by grant from railroad obtain right of way over landowner's servient 
 estate in railroad's right of way. 
 
 Cited in footnotes to Miller v. Green Bay, W. & St. P. R. Co. 26 L. R. A. 443, 
 which holds additional burden on street not made by allowing other companies to 
 use tracks; Ft. Worth & R. G. R. Co. v. Southwestern Teleg. & Teleph. Co. 60 L. 
 R. A. 145, which sustains right to condemn telegraph line over railroad right of 
 way; Mobile & O. R. Co. v. Postal Teleg. Cable Co. 41 L. R. A. 403, which holds 
 condemnation of telegraph line over railway right of way authorized by statute; 
 Western U. Teleg. Co. v. Pennsylvania Co. 68 L.R.A. 968, which denies right of 
 either party to terminate without other's consent contract for maintenance on 
 railroad right of way of telegraph line at joint expense and for joint use. 
 
 Cited in notes (8 L. R. A. 430) concerning construction of telegraph lines as 
 additional servitude; (17 L. R. A. 480) as to what use of a street or highway 
 constitutes an additional burden; (10 L. R. A. 499) as to the placing of electric 
 wires in city streets; (12 L. R. A. 864) as to rights of abutting owners upon con- 
 struction of telegraph line; (36 L.R.A. (N.S.) 519) on uses to which railroad 
 right of way may be devoted; (28 Am. St. Rep. 233, 235) on telegraph and 
 telephone poles and wires in streets and highways across private property; (106 
 Am. St. Rep. 262) on what are additional servitudes in highways. 
 
 Distinguished in St. Louis I. M. & S. R. Co. v. Cape Girardeau Bell Teleph. 
 o. 134 Mo. App. 412, 114 S. W. 586, holding that a telephone line along de- 
 fendant's right of way owned by separate company but by agreement to be used 
 for railroad purposes too is not an additional servitude on plaintiff railroad's 
 easement to the extent of right of way. 
 Pleasure of damages for telegraph line. 
 
 Cited in footnotes to Cleveland, C. C. & St. L. R. Co. v. Ohio Postal Teleg. Cable 
 Co. 62 L. R. A. 941, which holds measure of damages to be decrease in value of 
 use of right of way for railroad purposes; Mobile & O. R. Co. v. Postal Teleg. 
 Cable Co. 45 L. R. A. 223, which holds measure of damages for telegraph line on 
 right of way, diminution in value of use by railroad company. 
 Necessity of seal to answer of corporation. 
 
 Cited in R. Frank Williams Co. v. United States Baking Co. 86 Md. 478, 38 
 Atl. 990, holding a corporation can only answer in equity, under its seal. 
 Injunction against trespass \>\ color of eminent domain. 
 
 Cited in Shipley v. Western Maryland Tidewater R. Co. 99 Md. 140, 56 Atl. 
 968, holding railway company may be enjoined from a threatened taking of land- 
 owner's right to center of stream without compensation which was not included 
 in condemnation of shore to railway company. 
 
 Distinguished in Carswell v. Swindell, 102 Md. 642, 62 Atl. 956, holding equity 
 will not entertain a bill for injunction against trespass in the absence of alle- 
 gation of irreparable injury or insolvency of trespasser or other showing of 
 inadequate remedy at law. 
 
 7 L. R. A. 205, TAGGART v. NEWPORT STREET R. CO. 16 R. 1. 668, 19 Atl. 
 
 326. 
 Use of streets; additional servitude of street railway. 
 
 Cited in Koch v. North Ave. R. Co. 75 Md. 229, 15 L. R. A. 380, 23 Atl. 463; 
 
1263 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 205 
 
 San Antonio Rapid Transit Street R. Co. v. Limburger, 88 Tex. 85, 53 Am. St. 
 Rep. 730, 30 S. W. 533; Howe v. West End Street R. Co. 167 Mass. 51, 44 N. E. 
 386; Birmingham Traction Co. v. Birmingham R. & Electric Co. 119 Ala. 142, 43 
 L. R. A. 235, 24 So. 502 holding authorized electric street railway on highway 
 not additional servitude; Peck v. Schenectady R. Co. 170 N. Y. 311, 63 N. E. 357 
 (dissenting opinion) majority holding electric railroad additional burden on 
 street; La Crosse City R. Co. v. Higbee, 107 Wis. 400, 51 L. R. A. 928, 83 N. W. 
 701, holding trolley pole not additional burden if reasonably placed with regard 
 to abutting owners' convenience; Paterson R. Co. v. Grundy, 51 N. J. Eq. 228, 26 
 Atl. 788, holding electric railway may enjoin interference with trolley wires 
 where no additional burden imposed thereby; Chicago, B. & Q. R. Co. v. West 
 Chicago Street R. Co. 156 111. 268, 29 L. R. A. 490, 40 N. E. 1008, and West Jer- 
 sey R. Co. v. Camden, G. & W. R. Co. 52 N. J. Eq. 35, 29 Atl. 423, holding railroad 
 cannot enjoin planting of trolley poles at highway crossing without compensa- 
 tion, where no interference with operation of road; Cumberland Teleg. & Teleph. 
 Co. v. United Electric Co. 93 Tenn. 503, 27 L. R. A. 239. 29 S. W. 104, holding 
 electric railway ordinary use of street within proviso of grant to telephone com- 
 pany prohibiting obstruction thereof; Cincinnati Inclined Plane R. Co. v. City 
 Suburban Teleg. Asso. 48 Ohio St. 426, 12 L. R. A. 540, 29 Am. St. Rep. 559, 27 
 N. E. 890, refusing to enjoin construction of electric railway at suit of previously 
 established telephone company; Central Pennsylvania Teleg. & Supply R. Co. v. 
 Wilkesbarre W. S. R. Co. 11 Pa. Co. Ct. 423, 6 Kulp, 390, 1 Pa. Dist. Rep. 632, 
 holding electric railway liable to telephone company having prior occupancy of 
 street only for negligence in construction; Hershfield v. Rocky Mountain Bell 
 Teleph. Co. 12 Mont. 118, 29 Pac. 883, holding erection of telephone poles along 
 street, reasonable use thereof; Canandaigua v. Benedict, 24 App. Div. 353, 48 N. 
 Y. Supp. 679, holding that municipal corporation may acquire further easement 
 in highway for supply wires for electric pump over easement for water-pipe con- 
 duit; Vose v. Newport Street R. Co. 17 R. 1. 136, 20 Atl. 267, holding no liability 
 to abutting owners for damage resulting from use of rails already laid; Detroit 
 City R. Co. v. Mills, 85 Mich. 655, 48 N. W. 1007, holding operation of electric 
 railway in street not an additional burden; Halsey v. Rapid Transit Street R. 
 Co. 47 X. J. Eq. 393, 20 Atl. 859, holding trolley poles in middle of street not an 
 additional burden; Donner v. Metropolitan Street R. Co. 133 Mo. App. 534, 113 
 S. W. 669 : Lockhart v. Craig Street R. Co. 20 Pittsb. L. J. N. S. 481 ; Hobbs 
 v. Long Distance Teleph. & Teleg. Co. 147 Ala. 397, 7 LJR.A.(N.S.) 907, 41 So. 
 1003, 11 A. A E. Ann. Cas. 461, on the rule that a street railway with its 
 poles and wires is not an additional servitude; Atty. Gen. ex rel. Brotherton 
 v. Detroit, 148 Mich. 116, 111 X. W. 860 (dissenting opinion), on the use of 
 streets by street railway companies as being a proper use; Canton v. Canton 
 Cotton Warehouse Co. 84 Miss. 292, 65 L.R.A. 567, 105 Am. St. Rep. 428, 36 
 So. 266, holding railway company may use streets to lay conduits to carry 
 water to its buildings without compensation to abutting owners: Rafferty v. 
 Central Traction Co. 147 Pa. 592. 30 Am. St. Rep. 763, 23 Atl. 884, 29 W. X. C. 
 549. 22 Pittsb. L. J. N. S. 324, holding the use of streets for placing street 
 railway tracks so close to curbing that a vehicle cannot stand between them 
 is not an unreasonable use entitling abutting owner to compensation: St. Louis. 
 I. M. & S. R. Co. v. Cape Girardeau Bell Teleph. Co. 134 Mo. App. 413. 114 
 S. W. 586. holding a railway's right of crossing another road carries with it 
 the rirht to construct or join with another and to construct telephone across 
 on its right of way for railroad and other purposes. 
 
 Cited in footnotes to State v. Jersey City, 26 L. R. A. 281, which holds author- 
 ized street car line a proper street use; Chicago General R. Co. v. Chicago C'i'y 
 
7 L.R.A. 205) L. E. A. CASES AS AUTHORITIES. 1264 
 
 R. Co. 50 L. R. A. 734, which denies liability for collision with cars of other com- 
 pany because of running cable cars under authority to use animal power only. 
 
 Cited in notes (17 L. R. A. 478) on street railway as additional burden; (10 
 L.R.A. 176) on regulation as to motive power for street railroads; (104 Am. 
 St. Rep. 647; 2 L.R.A.(N.S.) 139) on motive power for railroads or street rail- 
 way; (25 Am. St. Rep. 479; 36 L.R.A. (N.S.) 722, 723) on abutter's right to- 
 compensation for railroads in streets; (28 L.R.A. (N.S.) 1083) on preventive 
 remedy of nonconsenting abutting owner where use of highway for street railway 
 authorized by public; (28 Am. St. Rep. 235, 236) on telegraph and telephone 
 poles and wires in streets and highways across private property; (106 Am. St. 
 Rep. 245, 261) on what are additional servitudes in highways. 
 
 Distinguished in Jaynes v. Omaha Street R. Co. 53 Neb. 638, 39 L. R. A. 753, 
 74 N. W. 67, holding adjoining property owner entitled to damages for perma- 
 nent appropriation of portion of street by trolley poles; Snyder v. Fort Madison 
 Street R. Co. 105 Iowa, 288, 41 L. R. A. 347, 75 N. W. 179, enjoining maintenance 
 of trolley pole unnecessarily in front of dwelling; Cater v. Northwestern Teleph. 
 Exchange Co. 60 Minn. 549, 28 L. R. A. 315, 51 Am. St. Rep. 543, 63 N. W. Ill 
 ( dissenting opinion) majority holding telephone poles along highway impose no 
 additional burden thereon. 
 .Measure of damages. 
 
 Cited in Stewart v. Ohio River R. Co. 38 W. Va. 450, 18 S. E. 604, holding 
 measure of damage to abutting owner to be depreciation in market value of prop- 
 erty by construction of railroad in street. 
 Validity of franchise. 
 
 Cited in Williams v. Citizens' R. Co. 130 Ind. 75, 15 L. R. A. 67, 30 Am. St. 
 Rep. 201, 29 X. E. 408, holding not subject to attack in proceeding against indi- 
 vidual to enjoin interference with operation of railroad. 
 Judicial notice. 
 
 Cited in McGill v. Michigan S. S. Co. 75 C. C. A. 518, 144 Fed. 794, holding 
 court will not take judicial notice of the existence of gas in a tank containing 
 crude petroleum immersed in cold water. 
 
 Cited in footnote to Jamieson v. Indiana Natural Gas & Oil Co. 12 L. R. A. 652, 
 \vhich holds that judicial notice will be taken that natural gas is dangerous 
 agency. 
 
 7 L. R. A. 209, FISKE v. FIRST NAT. BANK, 133 Pa. 241, 19 Atl. 554. 
 Technical phrases. 
 
 Cited in McDonough v. Jolly Bros. 165 Pa. 548, 30 Atl. 1048, holding paving 
 contractor may show trade meaning of provision to prepare necessary beds of 
 gravel, sand, or other material required for said paving; Whorley v. Karper, 20 
 Pa. Super. C't. 349, holding tenant under ambiguous lease entitled to way-going 
 crop; Rastetter v. Reynolds, 160 Ind. 136, 66 N. E. 612, holding evidence of cus- 
 tom admissible to show dimensions of elm strips purchased were to be taken when 
 sawed green; Cole v. Leach, 47 Ind. App. 344, 94 N. E. 577, holding that parol 
 evidence may be admitted to clear up ambiguities, abbreviations, and particular 
 customs, when construing writing. 
 
 Distinguished in Silliman v. Whitmer, 11 Pa. Super. Ct. 261, holding evidence 
 of local usage to regard tramway as personalty, inadmissible where not shown to 
 exist at time of contract. 
 
12G5 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 211 
 
 7 L. R. A. 210, McCULLOUGH v. EXPRESSMEN'S MUT. BEN. ASSO. 133 Pa. 
 
 142, 19 Atl. 355. 
 Construction of Insurance term "sickness." 
 
 Cited in Robillard v. Societe St. Jean Baptiste de Centreville, 21 R. I. 350, 45 
 L. R. A. 560, 79 Am. St. Rep. 806, 43 Atl. 635, holding "sicknes" under benefit 
 association's by-laws, includes insanity and mental alienatioii. 
 
 Cited in notes in (52 Am. St. Rep. 570; 14 Eng. Rul. Gas. 28) on construction 
 of insurance term "sickness." 
 
 7 L. R. A. 211, ROOP v. REAL ESTATE INVEST. CO. 132 Pa. 496, 19 Atl. 278. 
 Statutory rigrnts and liability of feme covert. 
 
 Cited in Partick v. Smith, 165 Pa. 528, 30 Atl. 1044, holding wife not liable on 
 draft and note indorsed by her for accommodation of husband; Kohn v. Collison. 
 1 Marv. (Del.) 113, 27 Atl. 834, holding wife not liable on indorsement of hus- 
 band's note given in payment of his sole debt ; Schmidt v. Stutzbach, 10 Kulp. 
 470; and Bodine v. Keats, 10 Kulp, 436, opening judgment by confession against 
 wife on debt on which she was surety for husband; Wiseman v. Fleischer 
 
 8 Lane. L. Rev. 375, 10 Pa. Co. Ct. 301, 6 Kulp, 274, setting aside confessed judg- 
 ment on note materially altered by insertion of words asserting executions in pay- 
 ment of individual indebtedness; McCrea v. Sisler, 23 Pa. Co. Ct. 640, holding 
 wife's judgment note as surety for husband not support judgment, in spite of sub- 
 sequent agreement in behalf of separate estate to pay, on assignment of claims 
 against husband; Miller v. Billingfelt, 18 Lane. L. Rev. 380, holding judgment 
 for want of affidavit of defense cannot be entered on bond where one of defend- 
 ants shows herself merely surety for husband; Walter v. Jones, 148 Pa. 590, 24 
 Atl. 119, holding purchase by wife from vendee at sheriff's sale of husband's prop- 
 erty, valid against his creditors; McCoy's Estate, 11 Pa. Co. Ct. 11, 1 Pa. Dist. 
 R. 61, holding husband necessary party to partition proceedings of wife's real es- 
 tate; Walter v. Kensinger, 10 Lane. L. Rev. 269, 11 Lane. L. Rev. 52, 13 Pa. Co. 
 Ct. 224, holding wife cannot name damages in personal action for injury render- 
 ing her unable to do household work; Heacock v. Heacock, 108 Iowa, 545, 75 Am. 
 St. Rep. 273, 79 N. W. 353, holding wife cannot validly contract with husband 
 for services where his disability not removed by statute; Sweigart v. Conrad, 16 
 Lane. L. Rev. 343, striking off confessed judgment against married woman on her 
 surety note, where record fails to show statutory liability; Turner v. Laubagh, 6 
 Kulp, 370, 11 Pa. Co. Ct. 634, holding married woman not estopped on motion for 
 new trial, by failure to request judgment on pleadings in action on note showing 
 coverture but not bringing case within statutory liability; Sibley v. Robertson, 
 212 Pa. 28, 61 Atl. 426, holding that the intent and not the form of the trans- 
 action controls as to the nature of the obligation entered by feme covert as 
 determining whether her liability is that of a surety or principal; Miller v. 
 Billingfelt, 11 Pa. Dist. R. 58, holding feme covert's signature on a bond, as a 
 surety not binding against her: Children's Aid Soc. v. Binford. 26 Pa. Super. 
 Ct. 556, holding that the person pleading married woman's disability must prove 
 that her contract came within a prohibition, the presumption being in favor of 
 legality; Troup v. Bentz, 38 Pa. Co. Ct. 407, holding that confession of judg- 
 ment by husband and wife will be declared invalid as to latter, where it appears 
 to be based on lease of piano signed by wife as surety: Wise v. Rudolph, 12 
 North. Co. Rep. 210, holding that married woman's authority to make contracts 
 is noM' general as if she were feme sole subject only to two exceptions expressed 
 in act of 3393; Overpeck v. Baltzell, 25 Montsr. Co. L. Rep. 145, holding wife 
 liable for groceries which she purchased and agreed to pay for. 
 
 L.R.A. Au. Vol. L 80. 
 
7 L.R.A. 211] L. R. A. CASES AS AUTHORITIES. 1266 
 
 Cited in footnote to Kitchen v. Chapin, 57 L. R. A. 914, which holds married 
 woman liable on her guaranty of note owned by her and payable to her order. 
 
 Cited hi note (7 L. R. A. 640, 642) on wife's capacity to contract. 
 
 Distinguished in Glassmire v. Neill, 9 Lane. L. Rev. 29, 10 Pa. Co. Ct. 420, 
 upholding judgment entered against feme covert on judgment note where com- 
 plaint brings obligation within statutory liability, though not apparent in note; 
 Krumrine v. Bottorf, 12 Pa. Co. Ct. 69, holding confessed judgment valid where 
 statements accompanying same show statutory liability in addition to coverture ; 
 Kuhn v. Ogilvie, 178 Pa. 307, 35 Atl. 957, holding mortgage by wife to secure 
 husband's debt binding; Warder, B. & G. Co. v. Stewart, 2 Marv. (Del.) 279, 
 holding wife bound on note executed as surety for husband ; Packer v. Taylor. 12 
 Pa. Co. Ct. 523, holding feme covert liable on promissory note given in purchase 
 of land; Bauck v. Swan, 146 Pa. 450, 23 Atl. 242, holding broker entitled to com- 
 missions on sale of married woman's property, where ratified by her; Latrobe 
 Bldg. & L. Asso. v. Fritz, 152 Pa. 229, 25 Atl. 558, holding judgment bond exe- 
 cuted by feme covert to secure loan for improvements on separate property, valid ; 
 Sterrett v. Schlotthauer, 10 Lane. L. Rev. 233, and Milligan v. Phipps, 153 Pa. 
 211, 25 Atl. 1121, holding mechanic's lien valid without describing owner as mar- 
 ried woman and work essential to separate estate; Bankard v. Shaw, 199 Pa. 629, 
 49 Atl. 230, Affirming 23 Pa. Co. Ct. 566, holding judgment on note given by 
 feme covert in settlement of mechanic's lien enforceable against her separate 
 property in spite of voluntary conveyance to children; Reed v. Stouffer, 14 Pa. 
 Co. Ct. 508, 11 Lane. L. Rev. 253, holding contract for sale of land jointly owned 
 by husband and wife specifically enforceable, without separate acknowledgment 
 of contract by wife; Guignon v. Covell, 10 Pa. Co. Ct. 196, opening judgment for 
 reception of evidence where allegation that defendant's note mere guaranty of 
 husband's debt, controverted; Koechling v. Henkel, 144 Pa. 219, 22 Atl. 808, hold- 
 ing stranger cannot impeach judgment regular on face confessed by married 
 woman; Breckwoldt v. Morrrs, 149 Pa. 293, 24 Atl. 300, holding married woman 
 cannot attack prima facie vaJid judgment in collateral action against sheriff for 
 trespass in levying thereunder. 
 
 Disapproved in Sweigart v. Conrad, 17 Lane. .L. Rev. 66, refusing to go behind 
 record to discover defendant's coverture on motion to strike off judgment: Mc- 
 Intire v. Bimber, 8 Lane. L. Rev. 227, 9 Pa. Co. Ct. 464, refusing to strike off 
 judgment valid on its face for failure of record to show that defendant was a 
 married woman where evidence establishes her liability; Pantal v. Spears. 29 
 Pa. Co. Ct. 103, holding that a confessed judgment against three joint makers 
 of a note should be opened instead of stricken where it appears that a feme 
 covert one of the confessed makers appears to have signed merely as a surety. 
 Unconscionable contracts. 
 
 Cited in note (81 Am. St. Rep. 665) on unconscionable contracts. 
 
 ~ L. R. A. 213, UPDEGROVE v. PENNSYLVANIA SCHUYLKILL VALLEY R. 
 
 CO. 132 Pa. 540, 19 Atl. 283. 
 Release of damages on grant of right of \vny. 
 
 Cited in McDonald v. Southern California R. Co. 101 Cal. 215, 35 Pac. 643, 
 holding conveyance of right of way as already operated prevents grantor from 
 complaining of private nuisance by use of insufficient bridge then in existence; 
 Kemp v. Pennsylvania R. Co. 156 Pa. 442, 32 W. N. C. 423. 26 Atl. 1074, holding 
 railroad not liable, after release, for obstruction of plaintiff's way across tracks; 
 Stadler v. Missouri River Power Co. 133 Fed. 323, holding a release from dam- 
 ages on grant of right to raise dam carried with it all rights necessary to exercise 
 of the grant and covered all those elements which could be implied from its 
 
12G7 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 214 
 
 terms; McCully v. Pittsburg R. Co. 44 Pa. Super. Ct. 322, to the point that 
 grant of right of way to railroad includes all the company may lawfully and 
 adversely take from grantor; White v. Philadelphia & R. R, Co. 46 Pa. Super. 
 Ct. 375, holding that abutting owner cannot recover for injury from surface 
 water resulting from construction of railroad in absence of negligent construction 
 or maintenance; Smith v. Pittsburg R. Co. 57 Pittsb. L. J. 311, holding that 
 railroad to which landowner has granted right of way can change from narrow 
 gauge to standard gauge and from steam to electricity. 
 
 Cited in note ( 59 L. R. A. 868 ) on liability for damming back water of stream. 
 
 Distinguished in Fremont, E. & M. Valley R. Co. v. Harlin, 50 Neb. 703, 36 L. 
 R. A. 420, 61 Am. St. Rep. 578, 70 N. W. 263, holding release of damages in right- 
 of-way deed should have no greater effect than judgment in condemnation proceed- 
 ing; McMinn v. Pittsburgh, M. & Y. R, Co. 147 Pa. 11, 23 Atl. 325, holding re- 
 lease does not absolve railroad from subsequent negligence in failing to make 
 proper or sufficient drains or culverts. 
 
 7 L. R. A. 214, ADAMS EXP. CO. v. HARRIS, 120 Ind. 73, 16 Am. St. Rep. 315, 
 
 21 N. E. 340. 
 .Sufficiency of pleading. 
 
 Cited in Continental Ins. Co. v. Miller, 4 Ind. App. 557, 30 N. E. 718, holding 
 averments of complaint sufficient plea of tender of money due on instalment note 
 to keep policy alive; Smythe v. Scott, 124 Ind. 184, 24 N. E. 685, holding trustees 
 of commandery of Knights Templar a corporation entitled to sue its treasurer 
 for wrongful conversion of its funds. 
 - An to Incorporation of party. 
 
 Cited in Ohio Oil Co. v. Detamore, 165 Ind. 247, 73 N. E. 906, holding com- 
 plaint proper naming defendants as "Ohio Oil Company," without alleging it to 
 be a corporation; Ft. Wayne Gas Co. v. Nieman, 33 Ind. App. 181, 71 N. E. 59, 
 holding that "Ft. Wayne Gas Co." imparts that it is a corporation and it is 
 therefore unnecessary to specifically aver that it is a corporation. 
 
 Distinguished in Bascom v. Toner, 5 Ind. App. 234, 31 N. E. 856, holding the 
 Christian name of the plaintiff must be given in the complaint. 
 
 Disapproved in State v. Chicago, M. & St. P. R. Co. 4 S. D. 263, 46 Am. St 
 Rep. 783, 56 N. W T . 894, holding incorporation of company must be alleged in the 
 complaint. 
 Carrier's liability. 
 
 Cited in Bird v. Southern R. Co. 99 Tenn. 725, 63 Am. St. Rep. 856, 42 S. W. 
 451. holding intermediate carrier liable for loss of trees held for freight without 
 notification to shipper. 
 Competency of employee's declaration against company. 
 
 Cited in Missouri P. R. Co. v. Gernan, 84 Tex. 143, 19 S. W. 461, holding dec- 
 larations of freight agent of railway competent evidence against railway in 
 action for loss of cotton. 
 
 Cited in note (131 Am. St. Rep. 312) on declarations and acts of agents. 
 Carrier's contract for limited liability. 
 
 Cited in Pacific Exp. Co. v. Foley, 46 Kan. 476, 12 L. R. A. 807, 26 Am. St. Rep. 
 107, 26 Pac. 665 (dissenting opinion), majority holding express company may 
 limit its liability for all loss in excess of $50 for property transported; Adams 
 Exp. Co. v. Carnahan, 29 Ind. App. 611, 94 Am. St. Rep. 279, 63 N. E. 245, hold- 
 ing contract limiting liability strictly construed against carrier when value of 
 property expressed at greater value than $50: Adams Exp. Co. v. Carnahan, 29 
 3nd. App. 610, 94 Am. St. Rep. 279, 63 N, E. 245, holding carrier can limit its 
 
7 L.R.A. 214] L. R. A. CASES AS AUTHORITIES. 1208 
 
 liability as to value of property transported; Louisville, N. A. & C. R. Co. v. 
 Nicholai, 4 Ind. App. 124, 51 Am. St. Rep. 206, 30 N. E. 424, holding jury might 
 infer negligence by carrier not accounting or attempting to account for failure 
 to deliver trunk; Pittsburg, C. C. & St. L. R, Co. v. Viers, 113 Ky. 535, 68 S. W. 
 469, holding connecting carrier, which does not limit its liability, receives stock 
 under terms of contract with initial carrier; United States Exp. Co. v. Joyce, 
 36 Ind. App. 4, 69 N. E. 1015, on the valuation of property in shipping contract 
 as controlling recovery for damage thereto. 
 
 Cited in footnote to Union State Bank v. Fremont, E. & M. Valley R. Co. 59 
 L. R, A. 939, which sustains initial carrier's right to limit liability to own line. 
 
 Cited in notes (13 Am. St. Rep. 784) on extortion of unauthorized stipulations 
 from shippers and their effect; (18 Am. St. Rep. 126) on limiting carrier's 
 liability; (23 Am. St. Rep. 597) on limitation of amount of carrier's liability. 
 As affecting: rights of connecting: carrier. 
 
 Cited in Lake Shore & M. S. R. Co. v. Teeters, 166 Ind. 349, 5 L.R.A.(N.S.) 
 431, 77 N. E. 599, holding connecting carrier liable for injury by negligence to 
 tender of stock riding in stock car under a limited liability contract for benefit 
 of connecting carriers entered into with initial carrier; Harby v. Southern R. 
 Co. 75 S. C. 325, 55 S. E. 760, holding connecting carrier entitled to benefit of 
 limiting value clause in special contract between initial carrier and shipper 
 where the contract provides for such benefit. 
 Waiver of carrier's lien. 
 
 Cited in note (5 Eng. Rul. Cas. 285) on loss of carrier's right to retain goods 
 until payment of freight. 
 
 7 L. R. A. 217, EQUITABLE L. ASSUR. SOC. v. HAZLEWOOD, 75 Tex. 338, 
 
 16 Am. St. Rep. 893, 12 S. W. 621. 
 Warranties In Insurance. 
 
 Cited in Phoenix Assur. Co. v. Coffman, 10 Tex. Civ. App. 637, 32 S. W. 810, 
 holding negative to question whether insurance had been refused does not void 
 policy if refusal was on ground that that kind of property was not insured; 
 Mutual L. Ins. Co. v. Baker, 10 Tex. Civ. App. 520, 31 S. W. 1072, holding false 
 warranty renders policy void though untruth due to inadvertence; Phoenix 
 Assur. Co. v. Coffman, 10 Tex. Civ. App. 634, 32 S. W. 810, holding warranty to 
 keep watchman on premises not false because found asleep at time of fire; holding 
 materiality of warranties will not be considered; Kansas Mut. L. Ins. Co. v. 
 Coalson, 22 Tex. Civ. App. 70, 54 S. W. 388, holding that warranties will be 
 strictly limited to precise undertaking of party; Brown v. Palatine Ins. Co. 89 
 Tex. 595, 35 S. W. 1060, holding language selected by insurer will be construed 
 most favorably to assured; Bills v. Hibernia Ins. Co. 87 Tex. 551, 29 L. R. A. 
 707, 47 Am. St. Rep. 121, 29 S. W. 1063, holding language to bring about for- 
 feiture strictly construed; Supreme Lodge, K. & L. H. v. Payne, 101 Tex. 455. 
 15 L.R.A. (N.S.) 1281, 108 S. W. 1160, holding that where the answers to ques- 
 tions as written in the application are made part of the contract of insurance 
 they constitute a warranty the breach of which will avoid the policy; Daniel 
 v. Modern Woodmen, 53 Tex. Civ. App. 574, 118 S. W. 211, holding that if 
 words of insurance policy admit of two constructions that one will be adopted 
 most favorable to insured; Hoeland v. Western U. L. Ins. Co. 58 Wash. 106, 
 107 Pac. 866, holding that warranties in application for insurance are strictly 
 construed. 
 
 Cited in footnotes to Sternaman v. Metropolitan L. Ins. Co. 57 L. R. A. 318 r 
 which denies insurer's right to rely on warranty by applicant that answers prop- 
 
1209 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 217 
 
 rly recorded, where medical examiner knew otherwise; Home Ins. Co. v. Han- 
 cock, 52 L. R. A. 665, which holds statement that life tenant has fee-simple title 
 to insured property not avoid policy where agent knew facts; Globe Mut. L. Ins. 
 Asso. v. Wagner, 52 L. R. A. 649, which holds policy not avoided by false state- 
 ment that none of applicant's brothers dead. 
 
 Cited in notes (10 L. R. A. 668) on warranty of truth of representations by 
 insured; (16 L. R. A. 37, 38) on effect of knowledge by insurer's agent of falsity 
 of statements in application. 
 "\VHfireringr policy. 
 
 Cited in Hinton v. Mutual Reserve Fund Life Asso. 135 N. C. 324, 65 L.R.A. 
 166, 47 S. E. 474, holding policy taken out by one having no insurable interest 
 in life of insured, invalid. 
 
 Cited in notes (12 L.R.A. 410) on invalidity of wager policy; (6 L.R.A. (N.S.) 
 129) on validity of assignment not made as cover for wager policy of life in- 
 surance to one having no insurable interest. 
 When insured estopped. 
 
 Cited in Fitzmaurice v. Mutual L. Ins. Co. 84 Tex. 65, 19 S. W. 301, holding 
 affirmance by insured of correctness of statements in application binding even if 
 known to be false to agent. 
 When insurer estopped. 
 
 Cited in Mutual L. Ins. Co. v. Blodgett, 8 Tex. Civ. App. 50, 27 S. W. 286, 
 holding company bound by answers dictated by its own medical examiner; New 
 York L. Ins. Co. v. Russell, 23 C. C. A. 54, 40 U. S. App. 530, 77 Fed. 106, holding 
 company bound by facts disclosed to agent and medical examiner though answer 
 directed by latter wrong; Mutual Ben. L. Ins. Co. v. Robison, 22 L. R. A. 331, 
 7 C. C. A. 469, 19 U. S. App. 266, 58 Fed. 730, holding company estopped from 
 taking advantage of either error or blunder of examiner in writing answers when 
 correct answers given; Providence Life Assur. Soc. v. Reutlinger, 58 Ark. 543, 
 25 S. W. 835, holding company estopped from alleging falsity of answers to ques- 
 tions of medical examiner to whom correct answers made. 
 
 Cited in footnote to Follett v. United States Mut. Acci. Asso. 12 L. R. A. 315, 
 which holds representation of freedom from infirmity waived by agent's knowledge 
 of applicant's deafness. 
 
 Cited in notes (30 L. R. A. 636) on effect of riders or slips attached to in- 
 surance policy; (10 L.R.A. 610) on employment of clerks by insurance agent; 
 {4 L.R.A. (N.S.) 608) on effect of agent's insertion in application of false an- 
 swers to questions correctly answered by insured; (16 L.R.A. (N.S.) 1212, 1250, 
 1262) on parol-evidence rule as to varying or contracting written contracts, as 
 affected by doctrine of waiver or estoppel as applied to insurance policies; (107 
 Am. St. Rep. Ill) on waiver of provisions of non-waiver or written waiver of 
 conditions and forfeitures in policies. 
 Insarafole interest. 
 
 Cited in Crosswell v. Connecticut Indemnity Asso. 51 S. C. 116, 28 S. E. 200, 
 holding son's insurable interest on mother's life supports assignment by bene- 
 ficiary of policy procured by mother on own life for benefit of daughter; Cheeves 
 v. Anders, 87 Tex. 291, 47 Am. St. Rep. 107. 28 S. W. 274, holding surviving 
 partner has interest in so much of policy issued on life of deceased copartner as 
 was paid in premiums by partnership; Mutual L. Ins. Co. v. Blodgett, 8 Tex. Civ. 
 App. 49, 27 S. W. 286, holding beneficiary without insurable interest will be 
 treated as trustee to collect proceeds of policy for those legally entitled ; Ex- 
 change Bank v. Loh, 104 Ga. 453, 44 L. R. A. 376, 31 P. E. 459, holding creditor's 
 insurable interest in life of debtor does not exceed indebtedness ; Goldbaum v. 
 
7 L.R.A. 217] L. R. A. CASES AS AUTHORITIES. 1270 
 
 Blum, 79 Tex. 641, 15 S. W. 504, holding widow and children entitled to balance 
 of proceeds of life insurance policy after payment of debt for which it was taken 
 out; Cameron v. Barcus, 31 Tex. Civ. App. 49, 71 S. W. 423, holding community- 
 debt creditor of deceased husband without insurable interest in life of the wife; 
 Farmers' & T. Bank v. Johnson, 118 Iowa, 284, 91 N. W. 1074, denying right of 
 daughter, as beneficiary in policy of father, to deny her insurable interest after 
 assignment of policy; Woods v. Woods (Woods v. Riner) 330 Ky. 170, 19 L.R,A. 
 (N.S.) 236, 113 S. W. 79, holding the relationship of parent and child sufficient 
 of itself to give either an insurable interest in life of the other; Wilton v. New 
 York L. Ins. Co. 34 Tex. Civ. App. 158, 78 S. W. 403, holding niece has no- 
 insurable interest in life of uncle from whom she has no pecuniary expectations 
 beyond an occasional gift. 
 
 Cited in footnotes to Mutual Reserve Fund Life Asso. v. Hurst, 20 L. R. A. 761 r 
 which holds assignee's insurable interest as creditor not condition of recovery on 
 policy; Hurd v. Doty, 21 L. R. A. 746, w-hich denies right of trustee receiving 
 proceeds of insurance policy to refuse payment to beneficiaries as having no in- 
 surable interest; Adams v. Reed, 35 L. R. A. 692, which holds woman has in- 
 surable interest in life of son-in-law. 
 
 Cited in notes (25 L.R.A. 630) on right to take life insurance for benefit of 
 stranger; (128 Am. St. Rep. 303) on life insurance in favor of persons having 
 no insurable interest; (13 Eng. Rul. Cas. 397, 400) on insurable interest in life. 
 Charge to jnry. 
 
 Cited in Phoenix Assur. Co. v. Coffman, 10 Tex. Civ. App. 633, 32 S. W. 81 a, 
 holding charge to jury properly limited to issues presented by pleadings and evi- 
 dence. 
 
 Cited in note (10 L. R. A. 669) on instructions of court in action on insurance 
 policy. 
 What passes ly assignment of policy. 
 
 Cited in Cawthon v. Perry, 76 Tex. 385, 13 S. W. 268, holding creditor with 
 assignment of policy on life of debtor takes only amount of his debt with pre- 
 miums paid by him; Crosswell v. Connecticut Indemnity Asso. 51 S. C. 108, 28 
 S. E. 200, holding bona fide assignment may be made of policy with consent of 
 parties; New York L. Ins. Co. v. Rosenheim, 56 Mo. App. 33, holding policy may 
 be assigned by consent of parties as security for debt to amount of indebtedness; 
 Stevens v. Grmania L. Ins. Co. 26 Tex. Civ. App. 159, 62 S. W. 824, holding 
 assignment of policy by insured and contingent beneficiary, defeated by death of 
 latter. 
 
 Cited in notes (9 L.R.A. 662) on assignability of life insurance policy; (87 
 Am. St. Rep. 511) on title of creditor, assignee of life insurance policy, to 
 proceeds; (87 Am. St. Rep. 513) on effect of invalid assignment. 
 What Is insurance company. 
 
 Cited in Mutual Reserve L. Ins. Co. v. Dobler, 70 C. C. A. 134, 137 Fed. 555 r 
 holding an answer of "none" to an inquiry as to other life insurance in applica- 
 tion is proper where applicant holds accident policies. 
 
 Cited in note (38 L. R. A. 33, 57) on whether benefit association is an insur- 
 ance company. 
 Forfeiture of policy. 
 
 Cited in Scottish Union & Nat. Ins. Co. v. Andrews, 40 Tex. Civ. App. 191 T 
 89 S. W. 419, holding failure to itemize goods sold on credit from an insured 
 stock not a failure to comply with policy requirement of booking the value of 
 goods sold on credit. 
 
1271 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 226 
 
 Previous rejection by benefit association as refusal of insurance. 
 
 Cited in note (4 L.R.A. (N.S. ) 248) on previous rejection by benefit asso- 
 ciation as declination or refusal of insurance within meaning of application for 
 life insurance. 
 
 7 L. R, A. 224, ADAMS v. SEAMAN, 82 Cal. 636, 23 Pac. 53. 
 Stipulations in notes affecting: negotiability. 
 
 Followed in Cotton v. John Deere Plow Co. 14 Okla. 607, 78 Pac. 321, holding: 
 a note non-negotiable when stipulating for payment of attorneys' fees in event 
 of collection by attorney such fees to be based on percentage of amount collected. 
 
 Cited in Haber v. Brown, 101 Cal. 449, 35 Pac. 1035, and First Nat. Bank v. 
 Babcock, 94 Cal. 104, 28 Am. St. Rep. 94, 29 Pac. 415, holding note stipulating for 
 attorney's fee in case of suit not negotiable; Randolph v. Hudson, 12 Okla. 526, 
 74 Pac. 946, holding not negotiable, note providing for interest, if not paid at 
 maturity; Prescott v. Grady, 91 Cal. 521, 27 Pac. 755, holding demand necessary 
 to charge maker of note with attorney's fees and legal expenses stipulated for 
 therein; Mason v. Luce, 116 Cal. 238, 48 Pac. 72, holding valid, stipulation In 
 note for payment of attorney's fee in case of suit : Findlay v. Potts, 131 Cal. 
 386, 63 Pac. 694, holding note non-negotiable if containing stipulation for attor- 
 neys' fees; Meyer v. Weber, 133 Cal. 685, 65 Pac. lllO, holding note non-nego- 
 tiable providing for attorneys' fees in case of foreclosure of mortgage securing 
 such note; Stadler v. First Nat. Bank, 22 Mont. 202, 74 Am. St. Rep. 582, 56 
 Pac. Ill, holding note stipulating for payment of attorneys' fees in case of suit 
 not negotiable; Cornish v. Woolverton, 32 Mont. 469, 108 Am. St. Rep. 598, 81 
 Pac. 4, holding note non-negotiable which provides for increased rate of interest 
 on principal and interest not paid when due; Second Nat. Bank v. Basuier, 12 
 C. C. A. 517, 27 U. S. App. 541, 65 Fed. 61, holding a note drawn "with exchange" 
 and cost of collection non-negotiable. 
 
 Cited in footnote to Oppenheimer v. Farmers' & M. Bank, 33 L. R. A. 767 r 
 which holds negotiability of note not affected by stipulation for attorneys' fees,, 
 inoperative until maturity and dishonor. 
 
 Cited in notes (8 L.R.A. 394) on stipulations and agreements which destroy 
 negotiability; (125 Am. St. Rep. 207) on agreements and conditions destroying 
 negotiability. 
 
 Distinguished in Union Loan & T. Co. v. Southern California Motor Road Co> 
 51 Fed. 849, holding bonds negotiable though containing a provision for payment 
 before maturity, at any date when the semi-annual interest is due. 
 
 7 L. R. A. 226, HERRMAN v. ROBERTS, 119 N. Y. 37, 28 N. Y. S. R. 843, 16 
 
 Am. St. Rep. 801, 23 N. E. 442. 
 Rigrhts and duties incident to easement. 
 
 Cited in Harvey v. Crane, 85 Mich. 332, 12 L. R. A. 603, 48 N. W. 582, holding 
 owner of private road may fence it as incident to the reasonable enjoyment of 
 it; Abbott v. Jackson, 84 Me. 457, 24 Atl. 900, holding lessee, and not lessor, of 
 shed bound to keep in repair crossing over railroad leading to shed and exclusively 
 used by lessee; O'Shaughnessey v. O'Rourke, 36 Misc. 519, 73 N. Y. Supp. 1070 r 
 holding owner of dominant estate has no right to remove trees growing in right 
 of way without notifying owner of soil; Rotch v. Livingston, 91 Me. 472, 40 Atl. 
 426, holding grantee of right of way is entitled to its use for entire width that 
 it is laid out by deed; Weed v. McKeg, 37 Misc. 109, 74 N. Y. Supp. 250, holding 
 owner of servient estate may build such arch over passageway as will not inter- 
 fere with its reasonable use; Woodworth v. Genesee Paper Co. 18 App. Div. 512,. 
 46 N. Y. Supp. 99, holding riparian owner cannot, after using water of stream, 
 
7 L.R.A. 226] L. R. A. CASES AS AUTHORITIES. 1272 
 
 discharge it as incident to the right, upon land of adjoining owner; Wells v. 
 Tolman, 88 Hun, 441, 34 N. Y. Supp. 840, holding that owner of soil has no right 
 to sow to grain a permanent road the use of which is granted to another, and 
 that dominant estate can repair roadway over right of way; Townsend v. Bell, 
 70 Hun, 559, 24 N. Y. Supp. 193, holding reasonableness of use of water by ri- 
 parian proprietor must be determined by jury or trial court; Ballard v. Titus, 
 157 Cal. 681, 110 Pac. 118, holding that owner of right of way has right to 
 unobstructed use to limits specified, even though result be to give him wider way 
 than necessary; Galletly v. Bockius, 1 Cal. App. 728, 82 Pac. 1109, holding 
 owner of servient estate may convey same subject to the easement and may 
 reserve to himself a second easement the use under which must be reasonable 
 with respect to rights of first easement holder; Seaboard Air Line R. Co. v. 
 McMurrain, 132 Ga. 185, 63 S. E. 1098, holding a grant of a right of way 
 for tracks carries with it the right to grade and any damage caused by grading 
 is incident to the grant as respecting both grantees of the right and the land 
 subject to grant; Berg v. Neal, 40 Ind. App. 580, 82 X. E. 802, holding a 10-foot 
 gate over a 16-foot private right of way is not an obstruction to the right of 
 free passage in the dominant owner by the servient owner: Thompson v. Ger- 
 mania L. Ins. Co. 97 Minn. 92, 106 N. W. 102, holding grantor of an easement 
 owning the fee may so use it as not to interfere with the object for which it 
 was created; Jarman v. Freeman, 78 N. J. Eq. 468, 79 Atl. 1065, holding that 
 owner of fee, may suspend structure above right of way granted by him, if he 
 does not interfere with easement he has granted; New York C. & H. R. R. Co. 
 v. Shattemuc Yacht & Canoe Club, 57 Misc. 488, 109 N. Y. Supp. 933, holding 
 grantor of right of way in fee has the right of crossing the same as a servient 
 owner would have, the grantee having right to premises granted, only for rail- 
 road purposes; Marion County Lumber Co. v. Tilghman Lumber Co. 75 S. C. 
 223, 55 S. E. 337, holding that grantees of a right of way are held to have 
 abandoned any use of the grant not consistent with the rights granted; Murray 
 v. Dickson, 57 Tex. Civ. App. 625, 123 S. W. 179, holding that owner of right 
 of way has right to repair fence so as to prevent cattle trespassing upon ad- 
 joining land of owner of fee. 
 
 Cited in note (95 Am. St. Rep. 326, 328) on rights and obligations of parties 
 to private ways. 
 
 Distinguished in Alexander Smith & Sons Carpet Co. v. Ball, 143 App. Div. 
 85, 127 N. Y. Supp. 974, holding that where lands upon which right of way 
 was imposed sloped to door of mill owned by one of grantees, another grantee 
 cannot, to improve road, fill in slope so as to cut off access to mill. 
 Construction of easement. 
 
 Cited in Wells v. Tolman, 156 N. Y. 639, 51 N. E. 271, holding reservation of 
 right of way so qualified as to apply only to winter months; Whitney v. Richard- 
 son, 59 Hun, 605, 13 N. Y. Supp. 861, holding omission of words "heirs and as- 
 signs" in instrument to let grantee have use of water so long as it is used for run- 
 ning cheese factory, does not limit grant; Kinney v. Hooker. 65 Vt. 336, 36 Am. 
 St. Rep. 864, 26 Atl. 690, holding right of way as located by agreement of owner 
 of dominant and servient estates only way belonging to subsequent grantee; Im- 
 maculate Conception Church v. riheffer, 88 Hun, 339, 34 N. Y. Supp. 724, holding 
 circumstances surrounding situation of property when easement of way created 
 properly admitted; Hotchkiss v. Young, 42 Or. 452, 71 Pac. 324, holding grant of 
 right of way does not authorize construction of roadway so as to obstruct existing 
 irrigation ditch; Winslow v. Vallejo. 148 Cal. 726, 5 L.R.A. (N.S.) 865, 113 
 Am. St. Rep. 349, 84 Pac. 191, 7 A. & E. Ann. Cas. 851, holding the extent of 
 
1273 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 23 1 
 
 the grant is to be ascertained by consideration of the entire instrument creating 
 the easement in view of the surrounding circumstances and situation of parties 
 at time of execution; Nichols v. New York & P. Teleg. & Teleph. Co. 126 App. 
 Div. 196, 110 N. Y. Supp. 325 (dissenting opinion), on the construction of an 
 easement with a view to ascertain true intent of parties; People ex rel. Bryan 
 v. State Tax Comrs. 67 Misc, 510, 124 N. Y. Supp. 711, holding a grant of a 
 right of way is an easement merely for object granted and does not pass the 
 estate itself or the right to enjoy its exclusive occupation. 
 
 7 L. R. A. 229, KURSHEEDT v. UNION DIME SAV. INST. 118 N. Y. 358, 28 N. 
 
 Y. S. R. 933, 23 N. E. 473. 
 Rigrht to redeem by reason of dower riuht. 
 
 Cited in Campbell v. Ellwanger, 81 Hun, 262, 30 N. Y. Supp. 792, holding wife, 
 by reason of inchoate right of dower, can redeem from mortgagee in possession un- 
 der purchase-money mortgage given by husband; Mackenna v. Fidelity Trust Co. 
 184 N. Y. 417, 3 L.R.A.(N.S.) 1071, 112 Am. St. Rep. 620, 77 N. E. 721, 6 
 A. & E. Ann. Gas. 471, holding wife may redeem by reason of dower interest, 
 during life of husband, where she is not made a party to mortgage on premises 
 foreclosed. 
 Effect of 11s pendens. 
 
 Cited in Webster v. Pierce, 108 Wis. 414, 83 N. W. 938, holding Its pendens in 
 ejectment action does not bind purchaser of defendant in that action prior to filing 
 notice; Jaycox v. Smith, 17 App. Div. 150, 45 N. Y. Supp. 299, holding notice of 
 Us pendens in action to foreclose equitable lien not notice to one claiming under 
 foreclosure of recorded mortgage. 
 Marketable title. 
 
 Cited in notes (38 L.R.A.(N.S.) 5, 22; 132 Am. St. Rep. 1014) on what is 
 a marketable title; (20 Am. St. Rep. 217) on purchaser's duty as to taking 
 defective title. 
 
 7 L. R. A. 231, KOONS v. MELLETT, 121 Ind. 585, 23 N. E. 95. 
 \otiff of appeal to copartles of record. 
 
 Approved in Alexander v. Gill, 130 Ind. 488, 30 N. E. 525; Lowe v. Turpie, 147 
 Ind. 692, 37 L. R, A. 245, 47 N. E. 150; Anderson Glass Co. v. Brakeman, 20 Ind. 
 App. 237, 47 N. E. 937, each refusing to dismiss appeal because of lack of no- 
 tice to parties to record who are not parties to judgment; Bliss v. Grayson, 25 
 Nev. 340. 59 Pac. 888, holding notice of appeal need not be served upon the co- 
 defendants not appealing as to whom action dismissed over appellant's objection 
 before judgment; Brown v. Trexler, 132 Ind. 109, 30 N. E. 418, dismissing ap- 
 peal where notice not given to coparty to judgment; Cooper v. Peterson, 7 Ind. 
 App. 416, 34 N. E. 746, dismissing appeal in action on benefit certificate against 
 insurer, administrator, etc., because notice not given to administrator; Holloran 
 v. Midland R. Co. 129 Ind. 276, 28 N. E. 549, holding appeal by part of several 
 coparties without notice to others not validated by filing written appearance of 
 party not appealing after expiration of time limited for appeals. 
 Appeals in proceedings for settlement of estates. 
 
 Approved in Simmons v. Beazel, 125 Ind. 363, 25 N. E. 344, holding appeal in 
 action by executrix to have will construed, not in proceeding for settlement of 
 estates; Rogers v. State, 26 Ind. App. 147, 59 N. E. 334, and Swindle v. State, 15 
 Ind. App. 416, 44 N. E. 60, both holding appeal in action upon bond, not in mat- 
 ter growing out of decedents' estates; Mark v. Xorth. 155 Ind. 577, 57 N. E. 902, 
 holding action by administrator to recover assets taken from decedent by wrong- 
 
7 L.R.A. 231] L. R. A. CASES AS AUTHORITIES. 1274 
 
 ful act, not connected with settlement of estate; Roach v. Clark, 150 Ind. 96, 65 
 Am. St. Rep. 353, 48 N. E. 796, and Mason v. Roll, 130 Ind. 262, 29 N. E. 1135, 
 both holding appeal in action to quiet title, not in matter connected with dece- 
 dent's estates; Galetine v. Wood, 137 Ind. 535, 35 N. E. 901, holding appeal in 
 administrator's action to sell land and set aside fraudulent conveyances, is gov- 
 erned by decedent's act; Paxton v. Tyler, 20 Ind. App. 459, 50 N. E. 45, dismissing 
 appeal in proceeding by widow to obtain moneys paid on claims against estate, 
 to which administrator is not party; Merritt v. Straw, 6 Ind. App. 361, 33 N. E. 
 657, holding appeal in action by administrator on decedent's note, not concerning 
 settlement of estate; Harrison Xat. Bank v. Culbertson, 147 Ind. 615, 45 N. E. 
 657, holding action to recover from residuary devisees upon testator's liability, 
 within decedent's act as to appeal; Bollenbacher v. Whisnand, 148 Ind. 379, 47 
 N. E. 706, dismissing appeal in proceeding by administrator to sell real estate, 
 because not brought under statute regulating settlement of decedent's estates; 
 Louisville, N. A. & C. R. Co. v. Etzler, 4 Ind. App. 32, 34 N. E. 669, holding appeal 
 in action for injuring animals, not within statute concerning decedent's estates 
 where plaintiff dies pending action; Walker v. Steele, 121 Ind. 446, 23 N. E. 271, 
 holding action by administrator to recover note and mortgage assigned by dece- 
 dent, within statute governing appeals in civil actions. 
 
 Cited in Holderman v. Wood, 34 Ind. App. 521, 73 N. E. 199, holding that in an 
 action not involving the exercise of probate jurisdiction, an appeal therefrom is 
 governed by the civil code. 
 Liens upon distributive shares. 
 
 Approved in Armiger v. Reitz, 91 Md. 343, 46 Atl. 990, holding creditors of 
 legatee indebted to estate in excess of distributive share, not entitled to sale of 
 legatee's interest or a receiver therefor; Fiscus v. Moore, 121 Ind. 555, 7 L. R. A. 
 237, footnote p. 235, 23 N. E. 362 (distinguished in dissenting opinion), holding 
 mortgage on undivided interest in land, taken pending settlement of estate with 
 Icnowledge of heir's indebtedness to estate, subject to deduction of heir's debt 
 from distributive share; Dimmick v. Rosenfeld, 34 Or. 104, 55 Pac. 100, holding 
 lands not subject to execution on prior judgment against agent taking title in 
 himself without principal's knowledge, and then conveying to principal ; Whip- 
 perman v. Dunn, 124 Ind. 356, 24 N. E. 166, holding lien of judgment creditor 
 subject to equities at rendition of judgment; Huffman v. Copeland, 139 Ind. 231, 
 
 38 N. E. 861, holding agreement by husband with wife to take specified sum of 
 money in lieu of interest in her land which would descend to him by law, binding 
 on his judgment creditors; Clapp v. Hadley, 141 Ind. 32, 50 Am. St. Rep. 308, 
 
 39 N. E. 504, holding mortgagor not entitled to surplus over amount of decree 
 on senior mortgage where same not in excess of both mortgages; Taylor v. Mo- 
 <Jrew, 29 Ind. App. 327, 64 N. E. 651, holding that judgment lien upon legatee's 
 interest in land attached to proceeds of sale thereof in hands of executor. 
 
 Cited in footnote to Oxsheer v. Nave, 37 L. R. A. 98, which sustains right to 
 set off indebtedness of distributee against distributive share although purchased 
 by creditor. 
 Set-off of legatee's indebtedness to estate. 
 
 Approved in Holmes v. McPheeters, 149 Ind. 590, 49 N. E. 452, and New v. New, 
 127 Ind. 588, 27 N. E. 154, both holding distributee not entitled to distributive 
 share while indebted to the estate; Neely v. Boyce, 128 Ind. 12, 27 N. E. 169, 
 holding will creating life estate with remainder over creates rights devested only 
 In case sale necessary to pay debts, costs, or sum provided by the will to be paid; 
 Fiscus v. Fiscus, 127 Ind. 285, 26 N. E. 831, directing deduction from distributive 
 share of judgment debt within distributee's exemptions. 
 
 Cited in footnotes to Ainsworth v. Bank of California, 39 L. R. A. 686, which 
 
1275 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 235 
 
 authorizes setting off against claim due estate debt due from deceased though im- 
 mature at time of death; Gosnell v. Flack, 18 L. R. A. 158, which authorizes set- 
 off against distributive share of debt due from insolvent; Webb v. Fuller, 22 L. 
 K, A. 177, which authorizes set-off of amount due by legatee against distributive 
 share; Re Baily, 22 L. R. A. 444, which holds legacy to cosurety subject to deduc- 
 tion for proportionate share of amount paid by testator. 
 
 Distinguished in Weaver v. Gray, 37 Ind. App. 42, 76 N. E. 795, holding hus- 
 band one-third interest in proceeds from sale of land granted to wife for love 
 and affection is not part of assets of estate of wife for distribution subject to a 
 set-off of administrator's claim for funeral expenses ; Marvin v. Bowlby, 142 Mich. 
 249, 4 L.R.A. (N.S.) 193, 113 Am. St. Rep. 574, 105 N. W. 751, 7 A. & E. Ann. Cas. 
 559, holding heirs indebtedness to estate may not be set-off against his distribu- 
 tive share of the real estate in hands of administrator or proceeds from sale 
 thereof. 
 Parties to an appeal. 
 
 Cited in Indianapolis Traction & Terminal Co. v. Holtzclaw, 40 Ind. App. 315, 
 81 N. E. 1084, holding one of two tort feasors not a party to an appeal by the 
 other where such tort feasor had verdict rendered in his favor alone. 
 Limitation of lien of judgment to interest of debtor. 
 
 Cited in Smith v. Farmers' & M. Nat. Bank, 57 Or. 87, 110 Pac. 410, holding 
 that land purchased with wife's money, but later conveyed to wife because plac- 
 ing title in husband was mistake, was not subject to levy for payment of hus- 
 band's debts. 
 
 7 L. R. A. 235, FISCUS v. MOORE, 121 Ind. 547, 23 N. E. 362. 
 Deduction of debt from distributive share. 
 
 Approved in Re Lietman, 149 Mo. 1 19, 73 Am. St. Rep. 374, 50 S. W. 307, hold- 
 ing that debts of insolvent legatee should be deducted from distributive share; 
 Fiscus v. Fiscus, 127 Ind. 284, 26 N. E. 831, directing deduction from distributive 
 share, of judgment debt within distributee's exemptions ; Holmes v. McPheeters, 
 149 Ind. 590, 49 N. E. 452, and New v. New, 127 Ind. 586, 27 N. E. 154, both 
 holding distributee not entitled to receive distributive share while indebted to 
 estate; Hopkins v. Thompson, 73 Mo. App. 405, holding administrator may apply 
 distributive share from sale of real estate on debt due from devisee. 
 
 Cited in Barnett v. Thomas, 36 Ind. App. 447, 114 Am. St. Rep. 385, 75 N. E. 
 868, holding debt of one of heirs to deceased owner of land is to be considered in 
 partition by sale and distribution of proceeds. 
 
 Cited in footnotes to Re Baily, 22 L. R, A. 444, which holds legacy to cosurety 
 subject to deduction for proportionate share of amount paid by testator; Ains- 
 worth v. Bank of California, 39 L. R. A. 686, which authorizes setting off against 
 <;laim due estate debt due from deceased though immature at time of death; 
 Oosnell v. Flack, 18 L. R. A. 158, which authorizes set-off against distributive 
 share of debt due from insolvent; Webb v. Fuller, 22 L. R. A. 177, which author- 
 izes set-off of amount due by legatee against distributive share. 
 
 Distinguished in Weaver v. Gray, 37 Ind. App. 42, 76 N. E. 795, holding that 
 administrator may not set-off funeral expenses against exempt property of hus- 
 band of deceased in his hands; Marvin v. Bowrby, 142 Mich. 249, 4 L.R.A. (X.S.) 
 193, 113 Am. St. Rep. 574, 105 N. W. 751, 7 A. & E. Ann. Cas. 559, holding that 
 an heir's distributive share of the real estate or proceeds in hands of adminis- 
 trator is not chargeable with an indebtedness of such heir to the estate. 
 Set-off of heir's indebtedness against mortgagee. 
 
 Approved in Moore v. Moore, 155 Ind. 264, 57 X. E. 242, holding vendee under 
 
7 L.R.A. 235] L. R. A. CASES AS AUTHORITIES. 1276 
 
 agreement of sale with administrator and heirs, without lien for value of im- 
 provements on proceeds of sale of real estate to pay debts; Green v. Brown, 146 
 Ind. 10, 44 N. E. 805, holding decree in partition pending settlement of decedent's 
 estate, does not preclude administrator from asserting estate's liens against realty 
 partitioned; Oxsheer v. Nave, 90 Tex. 572, 37 L. R. A. 101, footnote p. 98, 40 S- 
 W. 7, which sustains right to set off indebtedness of distributee against distribu- 
 tive share although purchased by creditor. 
 Real estate is subject to decedent's debts. 
 
 Approved in Moore v. Moore, 155 Ind. 263, 57 N. E. 242, holding decedent's real 
 and personal estate equally chargeable with payment of debts although personal 
 estate must be first exhausted; Rowland v. Swope, 39 111. App. 517, holding that 
 real estate cannot be here sold for payment of debts of decedent where personalty 
 is sufficient if not wasted. 
 
 Cited in note (21 L. R. A. 323) as to set-off on mortgage foreclosure. 
 
 7 L. R. A. 240, STATE ex rel. CLARK v. HAWORTH, 122 Ind. 462, 23 N. E. 946. 
 
 Followed without discussion in Knox County v. Johnson, 124 Ind. 148, 7 L. R. 
 A. 685, 19 Am. St. Rep. 88, 24 N. E. 148; State ex rel. Snoke v. Blue, 122 Ind. 
 600, 23 N. E. 963; State ex rel. Spears v. Taylor, 122 Ind. 600, 23 N. E. 963. 
 Judicial control of legislative discretion. 
 
 Approved in Forsyth v. Hammond, 18 C. C. A. 179, 34 U. S. App. 552, 71 Fed. 
 446, holding that courts cannot exercise legislative power to establish municipal 
 corporations; Jamieson v. Indiana Natural Gas & Oil Co. 128 Ind. 562, 12 L. R. 
 A. 654, 3 Inters. Com. Rep. 615, 28 N. E. 76, holding regulation of pressure of 
 natural gas transported in pipes, within police power of legislature exercisable 
 in discretion if without oppression ; State ex rel. Terre Haute v. Kolsem, 130 
 Ind. 442, 14 L. R, A. 570, 29 N. E. 595, upholding right of legislature to deter- 
 mine whether or not a general law is applicable to subject on which special laws 
 are not prohibited; Blue v. Beach, 155 Ind. 133, 50 L. R. A. 70, 80 Am. St. Rep. 
 195, 56 N. E. 89, holding power in administrative boards to adopt reasonable rules 
 and regulations, not improper delegation of authority: Morris v. Powell, 125 
 Ind. 302, 9 L. R, A. 335, 25 N. E. 221 (dissenting opinion), majority holding law 
 imposing extra burdens and hardships upon voters absent from state or chang- 
 ing residence, invalid; Carr v. State, 127 Ind. 209, 11 L. R. A. 372, 22 Am. St. 
 Rep. 624, 26 N. E. 778, holding right to compel auditing and payment of claim 
 against state, dependent upon existence of appropriation therefor. 
 
 Cited in note (13 L. R. A. 169) as to appropriation of state revenues. 
 Effect of exercise of legislative power. 
 
 Approved in State ex rel. Harrison v. Menaugh, 151 Ind. 270, 43 L. R. A. 412, 51 
 N. E. 117, holding reasonable change in time of holding township elections from 
 that fixed by previous statute, legitimate exercise of legislative power. 
 Public-school system. 
 
 Approved in Campana v. Calderhead, 17 Mont. 551, 36 L. R. A. 281, 44 Pac. 
 83, holding legislature not required to adopt uniform text-books, by constitutional 
 requirement of general, uniform, and thorough system of public free common 
 schools; State ex rel. Warren v. Ogan, 159 Ind. 123, 63 X. E. 227, holding office 
 of school trustees not vacated by incorporation of town as city. 
 
 Cited in Allyn v. Louisville School Bond, 131 Ky. 329, ]9 L.R.A.(N.S-) 1005, 
 115 S. W. 206, holding a statute providing conditions for change of books used 
 in schools is for protection of the people using the books and a failure to comply 
 therewith gives no right of action to a book company. 
 
1277 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 257 
 
 Synopsised in Leeper v. State, 103 Tenn. 533, 48 L. R. A. 174, 53 S. W. 962, 
 upholding validity of statute prescribing uniform text-books. 
 
 Cited in note (36 L. R. A. 277) as to adoption of text-books for public schools. 
 Imposition of duties upon public officers. 
 
 Approved in Chambers v. State, 127 Ind. 367, 11 L. R. A. 614, 26 N. E. 893, 
 holding office of school trustee of incorporated town within constitutional prohi- 
 bition against holding two lucrative offices. 
 
 Cited in State ex rel. Workman v. Goldthait, 172 Ind. 223, 87 N. E. 133, hold- 
 ing under statute providing for assessment of omitted property that county as- 
 sessor must list and assess such property for years other than the current year. 
 9Ionopolies. 
 
 Approved in Patterson v. Wollmann, 5 N. D. 619, 33 L. R. A. 540, 67 N. W. 
 1040, holding that granting of exclusive ferry franchises not within constitutional 
 prohibition of monopoly although monopoly results incidentally; Rand, M. & Co. 
 v. Hartranft, 29 Wash. 598, 70 Pac. 77, upholding validity of contract between 
 school board and publishers for certain text-books for five years. 
 
 Cited in Dickinson v. Cunningham, 140 Ala. 542, 37 So. 345, holding a uniform 
 text book law securing the supplying of such books to successful bidder does not 
 create a monopoly. 
 
 Cited in note (9 L. R. A. 38) as to monopolies. 
 Construction of statutes. 
 
 Approved in People's Nat. Bank v. Ayer, 24 Ind. App. 219, 56 N. E. 267, hold- 
 ing act providing that sewer assessments "may" be made to run twenty years and 
 that bonds to anticipate same "may also" be issued payable during like period, 
 not mandatory; State ex rel. Stephens v. Moore, 96 Mo. App. 434, 70 S. W. 512, 
 construing marriage-license act to require recording of licenses, although record- 
 ing not specified in direct words. 
 
 7 L. R. A. 257, WHITE v. CHICAGO, ST. L. & P. R. CO. 122 Ind. 317, 23 N. E. 
 
 782. 
 Easement in streets. 
 
 Approved in Chicago & I. C. R. Co. v. Hunter, 128 Ind. 220, 27 N. E. 477, and 
 Porter v. Midland R. Co. 125 Ind. 479, 25 N. E. 556, both holding all injuries re- 
 sulting from appropriation of land for right of way should be included in one 
 assessment; Burkam v. Ohio & M. R. Co. 122 Ind. 346, 23 N. E. 799, holding that 
 abutting owner not damaged by construction of railroad in street, has no action 
 therefor; New Castle v. Lake Erie & W. R. Co. 155 Ind. 25, 57 N. E. 516, holding 
 that municipalities may authorize reasonable use of highway for steam railroad 
 laid longitudinally ; Noblesville v. Lake Erie & W. R, Co. 130 Ind. 5, 29 N. E. 484, 
 holding right to lay tracks in street not lost although second track not laid until 
 more than twenty years after grant; Haus v. Jeffersonville, M. & I. R. Co. 138 
 Ind. 311, 37 N. E. 805, holding all damages from appropriation or use of alley 
 for railway, within release of all claims and demands past or present for damages 
 by granting of right of way; Cleveland, C. C. & St. L. R. Co. v. Huddleston, 21 
 Ind. App. 627, 69 Am. St. Rep. 385, 52 N. E. 1008, holding that compensation 
 for all injuries from construction and operation of railroad includes ne< 
 changes in roadbed and culverts; Hileman v. Chicago G. W. R. Co. 113 Iowa. 594, 
 85 N. W. 800, holding abutter's grant of right to construct and maintain railroad 
 in highway covers any legitimate increase in use therefor, including sidetrack : 
 Chicago, St. L. & P. R. Co. v. Eisert, 127 Ind. 162, 26 N. E. 759, holding au- 
 thorization to construct railway in street, so that "line of the railroad" not near 
 curb, includes one or more tracks; Rehman v. New Albany Belt & Terminal R. 
 
7 L.R.A. 257] L. R. A. CASES AS AUTHORITIES. 1278 
 
 Co. 8 Ind. App. 213. 35 N. E. 292, holding present and prospective damages pre- 
 sumed assessed in proceeding under writ of assessment. 
 
 Cited in notes (17 L.R.A. 475, 481) as to what use of a street or highway 
 constitutes an additional burden; (36 L.R.A. (N.S.) 705) on abutter's right to 
 compensation for railroads in streets. 
 
 Distinguished in Grand Trunk Western R. Co. v. South Bend, 174 Ind. 225, 
 36 L.R.A.(N.S.) 850, 80 N. E. 885, holding that allegation that two tracks will 
 cause less obstruction of street than one track cannot be regarded as an allegation 
 of a fact. 
 AVhat damages are included In assessment for condemnation. 
 
 Cited in Baltimore & O. S. W. R. Co. v. Quillen, 34 Ind. App. 335, 107 Am. St. 
 Rep. 183, 72 N. E. 661, holding damage caused by collection of water on plain- 
 tiff's land caused by right of way, not included in the assessment to obtain the 
 grant; Union Traction Co. v. Pfeil, 39 Ind. App. 58, 78 N. E. 1052, holding that 
 damages resulting from construction of additional tracks not provided for in the 
 original assessment cannot be had by subsequent proceedings; Cleveland, C. C. &. 
 St. L. R. Co. v. Doan, 47 Ind. App. 329, 94 N. E. 598, holding that damages given 
 in condemnation proceedings by railroad includes damages caused by subsequently 
 elevating tracks; Ferdinand R. Co. v. Bretz, 47 Ind. App. 645, 94 N. E. 1046 r 
 holding that all damages, present and prospective for railroad right of way 
 should be assessed in condemnation proceedings; Mordhurst v. Ft. Wayne & S. 
 W. Traction Co. 163 Ind. 281, 66 L.R.A. 116, 106 Am. St. Rep. 222, 71 N. E. 642, 2 
 A. & E. Ann. Cas. 967, holding street railway company liable to abutting lot owner 
 for any special damages caused by negligence in construction or operation of the 
 road; New Jersey I. & I. R. Co. v. Tutt, 168 Ind. 210, 80 N. E. 420, holding dam- 
 age from obstruction of drain by construction of railway grade to be included in 
 award under condemnation proceedings; Indianapolis & W. R. Co. v. Branson, 
 172 Ind. 388, 86 N. E. 834, holding the danger to which abutting land owner and 
 his family will be subjected in crossing track, not included in award under con- 
 demnation proceedings. 
 
 Cited in note (22 Am. St. Rep. 51) on recovery of present and prospective 
 damages in eminent domain proceedings. 
 Reversal for erroneous conclusion of law. 
 
 Approved in Smiley v. Barker, 28 C. C. A. 13, 55 U. S. App. 125, 83 Fed. 687, 
 holding that a just judgment, warranted by record and facts, will not be over- 
 thrown because based on wrong reason; Nelson v. Cottingham, 152 Ind. 138, 52; 
 N. E. 702, holding that motion for judgment upon general finding will furnish 
 grounds for reversal. 
 Street as a "higbtvay." 
 
 Approved in Indianapolis v. Higgins. 141 Ind. 11, 40 N. E. 671, holding "high- 
 way" in criminal statute includes sidewalk. 
 
 7 L. R. A. 262, LAFLIN & P. POWDER CO. v. TEARNEY, 131 111. 322, 19 Am. 
 
 St. Rep. 34, 23 N. E. 389. 
 Sufficiency of declaration. 
 
 Cited in Chicago, W. & V. Coal Co. v. Glass, 34 111. App. 370, holding plea of 
 general issue after demurrer waiver of right to question sufficiency of declaration. 
 Negligence and nuisance. 
 
 Cited in Fisher v. Western Fuse & Explosives Co. 12 Cal. App. 747, 108 Pac. 
 659, holding cause of action sufficiently appears by averments showing mainte- 
 nance of a nuisance though insufficiently pleaded as negligence; Uggla v. Brokaw, 
 117 App. Div. 591, 102 N. Y. Supp. 857, holding allegation of facta constituting 
 
3279 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 262 
 
 nuisance sufficient to set up can of action though nuisance not expressly al- 
 leged. 
 Instruction referring to pleadings. 
 
 Approved in Chicago & A. R. Co. v. Johnson, 128 111. App. 25; Illinois Terra 
 Cotta Lumber Co. v. Hanley, 116 111. App. 263, upholding instruction referring 
 to declaration. 
 
 Cited in Chicago, R. I. & P. R. Co. v. Cleveland, 92 111. App. 318, holding that 
 an instruction to find for plaintiff if he had made out his case as laid down in 
 his declaration, erroneous; Chicago & A. R. Co. v. Harrington, 192 111. 26, 61 
 N. E. 622, holding instructions based on theory in plaintiff's declaration not 
 erroneous if summarizing all essential facts; Suburban R. Co. v. Balkwill, 195 
 111. 539, 63 N. E. 389, and Central R. Co. v. Bannister, 195 111. 50, 62 N. E. 864, 
 upholding instructions for recovery if facts are found as laid in declaration; 
 United States Brewing Co. v. Stoltenberg, 211 111. 534, 71 X. E. 1081, holding an 
 instruction to find for the plaintiff if from evidence "as alleged in the declara- 
 tion" he has made out his case not erroneous for the words quoted. 
 
 Distinguished in Krieger v. Aurora, E. & C. R. Co. 242 111. 549, 90 N. E. 266, 
 holding that where declaration does not include all the issues an instruction to 
 find for plaintiff if he has made out his case as laid down in declaration is erro- 
 neous. 
 Xniaance. 
 
 Cited in Chicago v. Gunning System, 214 111. 636, 70 L.R.A. 236, 73 X. E. 1035, 
 2 A. & E. Ann. Gas. 892, on what constitutes a nuisance; Lazarus v. Parmly, 113 
 111. App. 626, defining a private nuisance to be any unreasonable or unlawful use 
 by a person of his own property, real or personal to the injury of another; 
 Wheeler v. Pullman Palace Car Co. 131 111. App. 265, holding a raised store 
 platform with steps in front of doors leading thereon only was not a nuisance; 
 Nelson v. Swedish Evangelical Lutheran Cemetery Asso. Ill Minn. 152, 126 X. W. 
 723, 20 Ann. Cas. 790, holding that cemetery so situated as to injure life or 
 health either by contaminating surrounding atmosphere or water of wells is 
 nuisance. 
 
 Cited in notes (107 Am. St. Rep. 244) on what are public nuisances; (16 L.R.A. 
 (N.S.) 693) on storage of explosives as nuisance. 
 Liability for nuisances; negligence as factor. 
 
 Cited in John Morris Co. v. Burgess, 44 111. App. 40, holding boiler owner only 
 required to use ordinary care with reference to its safety, and competency of serv- 
 ants managing it; Belvidere Gaslight & Fuel Co. v. Jackson, 81 111. App. 429. 
 holding reasonable care in erection of gas plant not of itself sufficient to relieve 
 proprietor of responsibility for injury therefrom; Rudder v. Koopman, 116 Ala. 
 354, 37 L. R. A. 499, 22 So. 601, holding storage of gunpowder and dynamite in 
 wooden building, in thickly settled part of town, a nuisance; Frost v. Berkeley 
 Phosphate Co. 42 S. C. 413, 26 L. R. A. 698, 46 Am. St. Rep. 736, 20 S. E. 280, 
 holding defendant liable for, damages caused by generation of deleterious gases 
 from phosphate factory; McDonough v. Roat, 8 Kulp, 446, holding storing and 
 Imndlinw dynamite, a nuisance or not, according to locality and surroundings : 
 Wilson v. Phoenix Powder Mfg. Co. 40 W. Va. 417, 52 Am. St. Rep. 890, 21 S. E. 
 1035. holding no care can prevent powder mill situated where it may endanger 
 lives from being a public nuisance; Hazard Powder Co. v. Volger, 7 C. C. A. 134. 
 12 U. S. App. 665, 58 Fed. 156, holding explosion of powder magazine located 
 in violation of city ordinance, renders owners liable for resulting injuries: Weston 
 Paper Co. v. Pope, 155 Ind. 402, 56 L. R. A. 902. 57 X. E. 719, holding injurious 
 pollution of stream, not excused by magnitude of investment or freedom from 
 
7 L.R.A. 262] L. R. A. CASES AS AUTHORITIES 1280 
 
 malice; Milligan v. Nelson, 51 111. App. 446 (dissenting opinion), majority holding 
 injunction restraining defendant from permitting dense smoke to be emitted from 
 his chimneys should not be granted; Mathews v. St. Louis & S. F. R. Co. 121 Mo. 
 328, 25 L. R. A. 172, 24 S. W. 591, upholding law making railroads absolutely 
 liable for damages caused by fires from locomotives; Lowe v. Prospect Hill Cem- 
 etery Asso. 58 Neb. 106, 46 L. R. A. 241, 78 N. W. 488, holding burial of the dead 
 so as to endanger life or health will be enjoined; Kleebauer v. Western Fuse & 
 Explosives Co. (Cal.) 60 L. R, A. 379. 69 Pac. 246, holding manufacturer storing 
 gunpowder with due care, not liable for wilful explosion of same by employee: 
 Payne v. Wayland, 131 Iowa, 661, 109 N. W. 203, holding that equity will restrain 
 the use of land as a cemetery constituting a nuisance; Bowman v. Humphrey, 132 
 Iowa, 237, 6 L.R.A.(N.S.) 1112, 109 N. W. 714, 11 A. & E. Ann. Cas. 131, hold- 
 ing that while deposits from a creamery in a stream constitute a nuisance, an 
 action will lie without regard to care used by creamery operators; Missouri. K. & 
 T. R. Co. v. Anderson, 36 Tex. Civ. App. 132, 81 S. W. 781, holding that where per- 
 son is maintaining a lawful business free from negligence, it is no justification 
 if such business is a nuisance and could be properly carried on somewhere else: 
 Perrin v. Crescent City Stockyard & Slaughter-house Co. 119 La. 99, 43 So. 
 938, 12 A. & E. Ann. Cas. 903, holding fertilizer and tallow rendering plant a 
 nuisance to persons living in vicinity the odors from which are a source of great 
 discomfort to such persons; Flynn v. Butler, 189 Mass. 386, 75 N. E. 730, hold- 
 ing that a gun powder magazine when maintained in a dangerous state in a pop- 
 ulous district is a nuisance; Henderson v. Sullivan, 16 L.R.A. (N.S.) 697, 86 C. 
 . A. 236, 159 Fed. 49, 14 A. & E. Ann. Cas. 590, holding the storage of tons of 
 gunpowder on an island in a river which was liable to and did explode was a 
 nuisance. 
 
 Cited in footnotes to Bly v. Edison Electric Illuminating Co. 58 L.R.A. 500, 
 which sustains right of tenant to maintain action to abate nuisance created by 
 third person's method of conducting business before lease renewed; Storms v. 
 Manhattan R. Co. 66 L.R.A. 625, which holds lessee's right to damages for in- 
 juries to building by interference with light, air, and access by construction of 
 elevated railway in abutting street not cut off by renewal of lease in accordance 
 with its terms. 
 
 Cited in notes (9 L. R. A. 715) on municipal authority to abate nuisance; 
 (29 L. R. A. 718) on negligence in manufacture and storage of gunpowder, nitro- 
 glycerine, dynamite, and other explosives; (38 L. R. A. 309) on municipal power 
 over nuisances affecting safety, health, and personal comfort; (23 Am. St. Rep. 
 174) on defenses to action for nuisance; (42 Am. St. Rep. 541) on liability of rail- 
 road for damages from fire from locomotive; (118 Am. St. Rep. 869) on actions 
 against two or more persons creating or maintaining a nuisance. 
 Proximate cause of injury. 
 
 Cited in notes (8 L.R.A. 83) on loss of injury or attributing loss or injury to 
 proximate cause; (36 Am. St. Rep. 817, 820) on proximate and remote cause. 
 ^Negligence In keeping explosives. 
 
 Cited in Smith v. Mine & S. Supply Co. 32 Utah, 26, 88 Pac. 683, holding evi- 
 dence of character of explosives admissible to show degree of care required in 
 the keeping thereof. 
 
 Cited in note (67 Am. St. Rep. 134, 137) on liability for keeping explosives. 
 
 Distinguished in Kinney v. Koopman, 116 Ala. 321, 37 L. R. A. 504. 67 Am. St. 
 Rep. 119, 22 So. 593, holding large storage of gunpowder and other explosives, in 
 thickly settled part of town not negligence per se. 
 
1281 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 266 
 
 Absence of vented or prior rinlit to commit a nuisance. 
 
 Cited in Standard Oil Co. v. Danville, 199 111. 54, 64 X. E. 1110, holding dan- 
 gerous plants that become nuisances may be made to move, although established 
 before city was built up around them; Oehler v. Levy, 234 111. 604, 17 L.R.A. 
 
 \ >. ) 1031, 85 N. E. 271, 14 A. & E. Ann. Cas. 891, Affirming 139 111. App. 303, 
 holding priority in location no justification for maintaining a stable constitut- 
 ing a nuisance by odor and noise. 
 
 Cited in footnote to Van Fossen v. Clark, 52 L. R. A. 279, which holds pur- 
 chaser's knowledge of existence of nuisance by discharge from drain does not es- 
 top him from suing to abate same. 
 Assumed rink. 
 
 Cited in Illinois Terra Cotta Lumber Co. v. Hanley, 214, 111. 247, 73 N. E. 373, 
 holding that where the issue of assumed risk is involved, instructions eliminating 
 that issue are erroneous. 
 
 7 L. R. A. 264, SMITHERS v. JUNKER, 41 Fed. 101. 
 Obligation to pay on uncertain condition. 
 
 C 'ited in Getto v. Binkert, 55 Kan. 620, 40 Pac. 925, holding note payable after 
 *ale of certain lots, due after lapse of reasonable time; Hood v. Hampton Plains 
 Exploration Co. 106 Fed. 412, holding wages payable when employer should re- 
 sume operation of mine due after lapse of four years; Johnston v. Schenck, 15 
 Utah. 494, 50 Pac. 921, construing instrument reciting receipt of money payable 
 on demand on sale of mine in year but not payable in case of no sale, payable at 
 expiration of year no sale having been made; Benton v. Benton, 78 Kan. 370, 27 
 L.R.A. (X.S.) 305, 130 Am. St. Rep. 376, 97 Pac. 378, holding that a written 
 acknowledgment of indebtedness where maker agrees to pay as soon as he can 
 is a promissory note due in a reasonable time. 
 
 Cited in footnotes to Page v. Cook, 28 L. R. A. 759, which holds note on demand 
 with provision for payment when parties mutually agree, due within reasonable 
 time; Pistel v. Imperial Mut. L. Ins. Co. 43 L. R. A. 219, which holds promise to 
 pay when debtor feels able, creates moral obligation to pay when debtor is able. 
 
 Distinguished in Pistel v. Imperial Mut. L. Ins. Co. 88 Md. 558, 43 L. R. A. 
 221. 42 Atl. 210. holding complaint on promise to pay when "feel able" demurra- 
 lile. where no allegation that debtor felt able, though ability alleged. 
 
 7 L. R. A. 265, LORENZ'S SUCCESSION, 41 La. Ann. 1091, 6 So. 886. 
 Effect of ex parte proceedings as to heirs. 
 
 Cited in Barber's Succession, 52 La. Ann. 963, 27 So. 363, holding ex parte 
 order of recognition of heir a nullity. 
 
 7 L. R. A. 266, BALDWIN v. LOUISVILLE & N. R, CO. 85 Ala. 619.. 5 So. 311. 
 Extent of legislative regulations. 
 
 Cited in Youngblood v. Birmingham Trust & Sav. Co. 95 Ala. 526, 20 L. R. A. 
 61, 36 Am. St. Rep. 245, 12 So. 579, upholding constitutionality of statute making 
 discount of commercial paper at more than certain rate per cent misdemeanor; 
 Brooks v. State, 88 Ala. 124, 6 So. 902, holding statute appointing board of ex- 
 aminers to determine qualifications of applicants for licenses to practise medi- 
 cine, constitutional; Birmingham Mineral R. Co. v. Parsons, 100 Ala. 665, 27 L. 
 R. A. 264, 46 Am. St. Rep. 92, 13 So. 602, holding act requiring railroads to place 
 cattle-guards, on demand of adjoining owners, constitutional; Wolf v. Smith. 149 
 Ala. 463, 9 L.R.A. (N.S.) 346, 42 So. 824, holding a legislative regulation requir- 
 ing mine operators to keep hospital supplies for care of injured miners without 
 L.R.A. Au. Vol. L 81. 
 
7 L.R.A. 266] L. R. A. CASES AS AUTHORITIES. 1282 
 
 compensation therefor is invalid; Seaboard Air Line R. Co. v. Railroad Com- 
 mission, 155 Fed. 799, holding statute void which declares that the bringing of 
 suit in a federal court by foreign corporation shall ipso facto forfeit its right 
 to do domestic business in the state. 
 
 Cited in note (4 L. R. A. 724) on due process of law. 
 
 Distinguished in Randolph v. Builders & Painters Supply Co. 106 Ala. 511, 17 
 So. 721, giving material men lien for "attorney's fees" unconstitutional. 
 
 7 L. R. A. 272, STATE USE OF BASHE v. BOYCE, 72 Md. 140, 20 Am. St. Rep. 
 
 458, 19 Atl. 366. 
 Pendency of another action, as abatement. 
 
 Cited in notes (58 L.R.A. 430) on effect of judgment against one joint tort 
 feasor upon liability of the other; (29 Am. St. Rep. 312; 92 Am. St. Rep. 883) 
 on pendency of suit against one tort feasor as affecting liability of others. 
 
 7 L. R. A. 273, COOK v. COOPER, 18 Or. 142, 17 Am. St. Rep. 709, 22 Pac. 945. 
 Possession by mortgragree. 
 
 Cited in Jewett v. Tomlinson, 137 Ind. 332, 36 X. E. 1106, holding purchaser at 
 sheriff's judgment sale cannot eject mortgagee in possession under senior mort- 
 gage; Spect v. Spect, 88 Cal. 443, 13 L. R. A. 139, footnote p. 137, 22 Am. St. Rep. 
 314, 26 Pac. 203, holding mortgagee in possession by consent of mortgagor cannot 
 be ejected by grantee of mortgagor though mortgage debt barred by limitations; 
 Walters v. Chance, 73 Kan. 685, 85 Pac. 779, holding consent of owner not neces- 
 sary to the holding of a mortgagee in possession if entry be made peacefully and 
 such entry is complete defense to ejectment by mortgagor until lien of mortgage 
 has been paid; Finlayson v. Peterson, 11 N. D. 54, 89 N. W. 855, holding that 
 assignee of mortgagee having taken possession peacefully and with consent of 
 mortgagor, cannot be ejected until lien of mortgage has been paid, especially 
 where real estate mortgage is merely lien for security; Coles v. Meskimen, 48 
 Or. 56, 85 Pac. 67, holding possession by mortgagee good defense to ejectment 
 until mortgage debt is paid though mortgage does not convey legal title; Lam- 
 bert v. Howard, 49 Or. 345, 90 Pac. 150. holding mortgagee in possession by con- 
 sent of mortgagor or by legal proceedings after condition broken may retain 
 possession until mortgage debt is paid; Francis v. Francis, 78 S. C. 182. 58 S. 
 E. 804, holding "grantees, in possession," or mortgagee entitled to hold the prop- 
 erty subject only to the equitable right of redemption and also citing note. 
 
 Cited in footnotes to Whiting v. Adams. 25 L.R.A. 598, which holds mort- 
 gagee's seizure of crops after filing bill for foreclosure a conversion; Stouffer v. 
 Harlan, 64 L.R.A. 320, which holds that mortgagee in possession after condition 
 broken cannot be dispossessed without payment of mortgage. 
 
 Cited in notes (8 L. R. A. 569) on rights of mortgagee in possession; (7 L. R. 
 A. 631) on protection of mortgagee; (7 L. R. A. 630) on rights of mortgagor. 
 Void foreclosure. 
 
 Cited in Jordan v. Sayre, 29 Fla. 115, 10 So. 823, holding warranty deed by 
 mortgagee to third party, of premises purchased by him on void foreclosure, sub- 
 rogates purchaser in equity to mortgagee's rights in premises; Bryan v. Pinney, 
 3 Ariz. 422, 31 Pac. 548, holding that purchaser of certificate of sale under void 
 foreclosure becomes assignee of mortgage debt; Bryan v. Brasius, 3 Ariz. 439, 31 
 Pac. 519, holding that grantee of purchaser under void foreclosure sale will be 
 subrogated to rights of mortgagee; Kelso v. Norton, 65 Kan. 785, 93 Am. St. Rep. 
 308, 70 Pac. 896, holding ejectment not maintainable by heirs of deceased mort- 
 gagor against purchaser in possession under void foreclosure sale, debt being un- 
 paid; Stouffer v. Harlan, 68 Kan. 139, 64 L.R.A. 322, footnote p. 320, 74 Pac. 610, 
 
1283 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 280 
 
 holding ejectment not maintainable against mortgagee in possession under in- 
 valid foreclosure, debt remaining unpaid; Coughanour v. Hutchinson, 41 Or. 423, 
 (>'.) Pue. 68, holding foreclosure purchaser entitled to retain possession as against 
 mortgagor and those claiming under him, until debt is paid; Investment Securi- 
 ties Co. v. Adams, 37 Wash. 216, 79 Pac. 625, holding a mortgagee being bona 
 fide purchaser at void foreclosure sale having possession thereunder is without 
 regard to assent of mortgagor, a mortgagee in possession entitled to incidents 
 thereof; Burns v. Hiatt, 149 Cal. 620, 117 Am. St. Rep. 157, 87 Pac. 196, holding 
 purchaser at a void foreclosure sale entitled to the lien of the mortgage as against 
 the mortgagor such lien not being divested by the proceedings; Currier v. Teske, 
 82 Xeb. 318, 117 X. W. 712, holding those claiming under mortgagor may not 
 maintain ejectment at law against purchaser at void foreclosure sale unless 
 they have discharged or made tender of discharge of mortgage lien; Nash v. 
 Northwest Land Co. 15 X. D. 570, 108 X. W. 792, holding a purchase of mortgaged 
 premises for full amount of lien at a void foreclosure operates as an equitable as- 
 signment of the mortgage: Haggart v. Wilczinski, 74 C. C. A. 176, 143 Fed. 26, 
 holding persons holding under purchaser at void foreclosure sale are to be re- 
 garded as mortgagees in possession. 
 
 Cited in note (40 L.R.A.(N.S.) 840, 844, 846) on right of one in possession 
 claiming under void foreclosure. 
 Redemption by mortuuwor. 
 
 Cited in Rigney v. De Graw, 100 Fed. 217, holding limitation does not run 
 against mortgagor's right to redeem from void foreclosure sale under which mort- 
 gagee in possession ; Hicklin v. Marco, 46 Fed. 425, holding purchaser at void 
 foreclosure sale entitled to value of improvements in suit by mortgagor to redeem. 
 Merger or diBcharg-e of mortgage. 
 
 Cited in Woodward v. McCollum, 16 N. D. 48, 111 N. W. 623, holding that in 
 case a mortgage held by land owner is not merged his grantees without men- 
 tion or notice of mortgage in grant would take his rights as mortgagee and suit 
 themselves as to merging it or not. 
 
 7 L. R. A. 280, BEARD v. ILLINOIS C. R. CO. 79 Iowa, 518, 18 Am. St. Rep. 381, 
 
 44 N. W. 800. 
 Carrier Duty to provide suitable ears. 
 
 Cited in Beard v. St. Louis, A. & T. H. R. Co. 79 Iowa, 534, 44 N. W. 803, hold- 
 ing carrier impliedly agrees to supply suitably cool cars for transportation of 
 butter in absence of special contract to contrary; Chicago & A. R. Co. v. Davis, 
 54 III. App. 134, holding carrier liable to consignee for spoiling of hams through 
 defect in refrigerator car, although consignor's duty to discover same; Shea v. 
 Chicago, R. I. & P. R. Co. 66 Minn. 107, 68 N. W. 608, holding carrier receiving 
 lemons in common box car without ice, from initial carrier liable for injury by 
 heat; St. Louis, I. M. & S. R. Co. v. Renfroe, 82 Ark. 148, 10 L.R.A. (N.S.) 322, 
 118 Am. St. Rep. 58, 100 S. W. 889, holding carrier having accepted through 
 transportation of strawberries it was its duty to provide customary cars used 
 for that purpose: C. C. Taft Co. v. American Exp. Co. 133 Iowa, 525. 10 L.R.A. 
 (N.S.) 615, 119 Am. St. Rep. 642, 110 X. W. 897, holding carrier liable for dam- 
 age to berries in transit caused by negligently supplying ice in refrigerator car; 
 Colsch v. Chicago, M. & St. P. R. Co. 149 Iowa, 181, 34 L.R.A.(N.S.) 1016, 
 127 N. W. 198, Ann. Cas. 1912 C, 915, holding that carrier of livestock is only 
 bound to use ordinary and reasonable care to avoid injury to stock by freezing, 
 where shipper accompanies shipment in transit: Philadelphia, B. & W. R. Co. v. 
 Diffendal. 109 Md. 507, 72 Atl. 193, holding connecting carrier must exercise due 
 care in protection of fruit in a refrigerator car, and in making delivery within 
 
7 L.R.A. 280] L. R. A. CASES AS AUTHORITIES. 1284 
 
 reasonable time; Brennisen v. Pennsylvania R. Co. 100 Minn. 105, 110 X. W. 362, 
 10 A. & E. Ann. Cas. 169, holding carrier liable for failure to properly ice cars 
 on a through shipment of perishable fruit in winter season ; Baker v. Boston & M. 
 R. Co. 74 N. H. 109, 124 Am. St. Rep. 937, 65 Atl. 386, 12 A. & E. Ann. Cas. 1072. 
 holding it to be duty of carrier of milk to provide iced cars since they are neces- 
 sary for proper carriage of such goods and also to care for goods during ship- 
 ment; State ex rel. Washington Mill. Co. v. Great Northern R. Co. 43 Wash. 660, 
 6 L.R.A.(N.S.) 910, 117 Am. St. Rep. 1084, 86 Pac. 1056, on duty of carrier to 
 provide proper facilities for shipment of goods offered. 
 
 Cited in footnotes to Mathis v. Southern R. Co. 61 L. R. A. 824, which holds 
 carrier liable for refusal to receive for transportation fruit, not in properly iced 
 refrigerator car; New York, P. & N. R. Co. v. Cromwell, 49 L. R. A. 462, which 
 holds carrier leasing cars from other company liable for loss of freight not prop- 
 erly refrigerated. 
 
 Cited in notes (10 L.R.A. 417) on measure of care required of carrier; (10 
 L.R.A. 419) on limitation of carrier's liability by contract; (10 L.R.A. (N.S.) 318, 
 320) on duty of carrier as to refrigerator cars; (90 Am. St. Rep. 300, 301, 302) 
 on cold storage of perishable freight; (130 Am. St. Rep. 47) on liability of rail- 
 road company for injuries or losses due to operation of cars not owned by it. 
 Presumption as to loss or injury. 
 
 Cited in Moore v. New York, N. H. & H. R. Co. 173 Mass. 337, 73 Am. St. Rep. 
 298, 53 N. E. 816, holding injury to baggage checked "through" presumed to have 
 occurred with last connecting carrier; Myerson v. Woolverton, 9 Misc. 188, 29 N. 
 Y. Supp. 737, holding transfer company to whose agent baggage check was deliv- 
 ered on train, presumptively negligent where baggage checked in good condition 
 was injured when delivered; Lamb v. Chicago, M. & St. P. R. Co. 101 Wis 144, 76 
 N. W. 1123, holding loss occurred presumptively with connecting carrier where 
 berries were in good condition at time of shipment in iced car; Stone v. Chicago. 
 R. I. & P. R. Co. 149 Iowa, 242, 128 N. W. 354, holding that presumption of good 
 condition of livestock will continue until overcome by competent evidence, where 
 good condition is shown to exist at time of delivery for transportation; Trakas 
 v. Charleston & W. C. R. Co. 87 S. C. 208, 69 S. E. 209, to the point that carrier 
 has burden of showing that perishable goods were not in good condition when 
 received from connecting carrier; St. Louis Southwestern R. Co. v. A. A. Jackson 
 & Co. 55 Tex. Civ. App. 412, 118 S. W. 853, holding that where goods are shipped 
 in good condition and are delivered by connecting carrier in damaged condition, 
 presumption is that damage resulted from his negligence. 
 
 Cited in notes (22 Am. St. Rep. 58) on presumption as to where loss occurred 
 in case of connecting carriers; (101 Am. St. Rep. 397) on burden of proof as be- 
 tween connecting carriers. 
 Custom as affecting- negligence. 
 
 Cited in Martin v. Chicago, R. I. & P. R. Co. 118 Iowa, 150, 59 L. R. A. 700, 96 
 Am. St. Rep. 380, 91 N. W. 1034, holding custom for express trains to exceed 
 speed prescribed by ordinance does not affect question of negligence. 
 
 Cited in footnote to Pennsylvania R. Co. v. Naive, 64 L.R.A. 443, which holds 
 carrier not negligent in failing to notify consignee of arrival of perishable goods 
 on legal holiday on which by general custom of locality all business is suspended. 
 Through contracts. 
 
 Cited in Peterson v. Chicago, R. I. & P. R. Co. 80 Iowa, 100, 45 N. W. 573, hold- 
 ing connecting carriers jointly liable for loss of baggage on contract exempting 
 only initial carrier for loss beyond its own terminals; Taffe v. Oregon R. Co. 41 
 Or. 72, 58 L. R. A. 192, 67 Pac. 1015, holding initial carrier not liable where 
 
1285 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 283 
 
 losses beyond terminal expressly exceptecl, though "fastest passenger train serv- 
 ice" stipulated for on bill of lading. 
 
 Cited in notes (10 L.R.A. 418) on liability of connecting carrier; (5 Eng. Rul. 
 Cas. 349; 31 L.R.A. (N.S.) 103, 105) on liability of connecting carrier for loss be- 
 yond own line. 
 
 7 L. R. A. 283, DAVIS v. ST. LOUIS, I. M. & S. R. CO. 53 Ark. 117, 13 S. W. 
 
 801. 
 Hiiilit of action for negligently causing: deatb. 
 
 Cited in St. Louis, I. M. & S. R. Co. v. Dawson, 68 Ark. 3, 56 S. W. 46, holding 
 right of action survives if deceased lived after tort, though unconscious till 
 death; Brown v. Chicago & N. W. R. Co. 102 Wis. 163, 44 L. R. A. 589, 78 N. W. 
 771, holding statutory actions by surviving relations supplementary to action 
 surviving to personal representative; Ohnmacht v. Mt. Morris Electric Light Co. 
 66 App. Div. 485, 73 N. Y. Supp. 296, holding father not entitled to damages for 
 loss of services of infant child where latter's death instantapeous ; Texarkana Gas 
 & Electric Light Co. v. Orr, 59 Ark. 222, 43 Am. St. Rep. 30, 27 S. W. 66, holding 
 complaint deemed on appeal amended to conform to proof where ambiguous 
 whether for benefit of estate or of wife and kin; Schleiger v. Northern Terminal 
 Co. 43 Or. 10, 72 Pac. 324, holding action for wrongful killing of minor main- 
 tainable by his father as administrator; United States Electric Lighting Co. v. 
 Sullivan, 22 App. D. C. 130, holding action for damages for negligent killing of 
 intestate properly brought by latter's administratrix; Davis v. Nichols, 54 Ark. 
 360, 15 S. W. 880, holding that action for wrongful killing, for benefit of dece- 
 dent's estate, survives death of wrongdoer : St. Louis, I. M. & S. R. Co. v. Gorman, 
 92 Ark. 107, 122 S. W. 116, holding a statute providing for institution of action 
 for negligent death, by personal representative and if there be none, by the heirs 
 for benefit of widow and next of kin. creates two causes of action one for per- 
 sonal estate and the other for benefit of widow and next of kin; Murphy v. St. 
 Louis, I. M. & S. R. Co. 92 Ark. 163, 122 S. W. 636, holding that two causes of 
 action arise one for benefit of estate by administrator the other for benefit of 
 next of kin, both based on different rights the one in benefit of kin based on 
 pecuniary interest in life of deceased; Tillar v. Reynolds, 96 Ark. 363, 30 L.R.A. 
 (N.S.) 1045, 131 S. W. 969, holding that action for benefit of widow and next of 
 kin, and one for benefit of estate may be joined; St. Louis, I. M. & S. R. Co. v. 
 Hesterly, 98 Ark. 255. 135 S. W. 874, to the point that statute giving right of 
 action for death did not create a right but only preserved to injured person's 
 estate one that would have ceased to exist at his death; Mahoning Valley R. Co. 
 v. Van Alstine, 77 Ohio St. 409, 14 L.R.A. (N.S.) 898. 83 X. E. 601, holding stat- 
 ute creates two different causes of action based on different rights though both 
 brought by one person and the one is not a bar to the other; Fulgham v. 
 Midland Valley R. Co. 167 Fed. 661, on the right of two independent actions 
 for wrongful death in favor of different persons; St. Louis, M. & S. E. R. Co. v. 
 Garner, 76 Ark. 557. 89 S. W. 550, holding father has no right to sue as next of 
 kin for negligent death of son where there is a personal representative; Earnest 
 v. St. Louis, M & S. E. R. Co. 87 Ark. 69, 112 S. W. 141, holding that common 
 law did not give right of civil action for wrongful death of a human being and 
 that any such right now existing is purely statutory; Choctaw, 0. & G. R. Co. 
 v. Jackson, 182 Fed. 346; Fithian v. St. Louis & S. F. R. Co. 188 Fed. 844, 
 holding that action for injury resulting in death can be brought only in name 
 of person or persons to whom right is given by statute. 
 
 Cited in footnotes to Hennessey v. Bavarian Brewing Co. 41 L. R. A. 385, 
 which sustains mother's right of action for wrongful death of child, notwith- 
 
7 L.R.A. 283] L. R. A. CASES AS AUTHORITIES. 1280 
 
 standing remarriage and stepfather's assumption of parental obligations; Brink 
 v. Wabash R. Co. 53 L. R. A. 811, which denies right of action for rendering per- 
 formance of contract to support parent impossible through negligent killing of 
 son. 
 
 Cited in notes (41 L. R. A. 810) on parent's common-law right of action for 
 loss of services of child killed; (34 L. R. A. 796, 799, 800, 801) on how many 
 distinct causes of action arise from injuries resulting in death. 
 
 Distinguished in Southern Bell Teleph. & Teleg. Co. v. Cassin, 111 Ga. 580, 50 
 L R. A. 697, 36 S. E. 881, holding statutory action does not survive to wife and 
 children where deceased settled with and released tort feasor. 
 
 Disapproved in Sweetland v. Chicago & G. T. R. Co. 117 Mich. 344, 43 L. R. A. 
 573, 75 N. W. 1066 (concurring opinion) majority holding damages not recover- 
 able for pain and suffering of passenger negligently killed in collision where 
 there is nothing to show that death was not instantaneous. 
 Measure of damages for causing death. 
 
 Cited in St. Louis, I. M. & S. R. Co. v. Dawson, 68 Ark. 3, 56 S. W. 46, setting 
 aside verdict of $4,000 for pain and suffering where deceased unconscious and 
 survived accident for only moment. 
 
 Cited in note (17 L. R. A. 73, 80) on measure of recovery for death caused by 
 negligence. 
 Contributory negligence of infant. 
 
 Cited in St. Louis, I. M. & S. R. Co. v. Higgins, 53 Ark. 466, 14 S. W. 653, 
 holding brakeman's youth and inexperience properly considered in action for 
 damages received while coupling in emergency; Emma Cotton Seed Oil Co. v. 
 Hale, 56 Ark. 238, 19 S. W. 600, holding infancy of plaintiff cannot excuse negli- 
 gence if aware of danger of position; St. Louis, I. M. & S. R. Co. v. Tomlinson, 
 78 Ark. 261, 94 S. W. 613, holding an eleven year old child traveling with his 
 parents in a wagon injured at a railroad crossing is required to use only such 
 care and caution as is according to his maturity and capacity, and whether he 
 does so is for the jury to say. 
 
 Assumption of risk. 
 
 Reaffirmed on later appeal in 55 Ark. 466, 18 S. W. 628. 
 
 Followed in Choctaw, 0. & G. R. Co. v. Thompson, 82 Ark. 15, 100 S. W. 83, 
 holding an experienced brakeman accepting position with company using un- 
 blocked frogs assumes the risk therefrom where he is charged with knowledge 
 of, because of the difference between the blocked and unblocked; York v. St. 
 Louis, I. M. & S. R. Co. 86 Ark. 246, 110 S. W. 803, holding that an unblocked 
 frog causing injury cannot be grounds for an action where the risk therefrom is 
 assumed. 
 
 Cited in Missouri, K. & T. R. Co. v. Thompson, 11 Tex. Civ. App. 667, 33 S. W. 
 718, and St. Louis, I. M. & S. R. Co. v. Davis, 54 Ark. 394, 26 Am. St. Rep. 48, 15 
 S. W. 895, holding brakeman entering service of railway using unblocked frog as- 
 sumes risk of injury; Brmkley Car Works & Mfg. Co. v. Lewis, 68 Ark. 320, 57 
 S. W. 1108, holding laborer in lumber yard long acquainted with piling lumber 
 assumes risk of falling piles; King- Ryder Lumber Co. v. Cochran, 71 Ark. 58, 70 
 S. \V. 606, holding it question for jury whether eighteen-year-old servant under- 
 stood danger of operating defective saw; Bowers v. Star Logging Co. 41 Or. 309, 
 68 Pac. 516, holding it question for jury whether servant assumed risk of setting 
 defective brake; West Pratt Coal Co. v. Andrews, 150 Ala. 375, 43 So. 348, 
 holding it not enough to charge servant with assumption of risk that the trestle 
 on which he works is open to observation, but it must be shown that be knew of or 
 should have known of danger causing injury; Ford v. Bodcaw Lumber Co. 73 
 Ark. 55, 83 S. W. 346, holding it the duty of master to warn youthful inex- 
 
1287 L. E. A. CASES AS AUTHORITIES. [7 L.R.A. 286 
 
 perienced servant of dangers connected with employment before subjecting him to 
 them though they be patent; Arkadelphia Lumber Co. v. Henderson, 84 Ark. 388, 
 105 S. W. 882, holding an inexperienced youthful servant does not assume risks 
 from a danger of the actual existence of which he had no knowledge though he 
 had a knowledge of the facts involving the danger; Arkansas M. R. Co. v. Worden, 
 90 Ark. 412, 119 S. W. 828, holding inexperienced servant does not assume risks of 
 employment until he is instructed and warned of it; St. Louis Stave & Lumber 
 Co. v. Sawyer, 90 Ark. 480, 119 S. W. 830, holding youthful inexperienced serv- 
 ant must be shown to have known and understood danger of employment to 
 charge him with assumption even though he was properly warned and instructed: 
 Holmes v. Bluff City Lumber Co. 97 Ark. 189, 133 S. W. 819, holding that ques- 
 tion as to whether sufficient warning was given to minor placed at work in shop 
 was for jury where only warning given was "don't run against any of saws or 
 you will get hurt;" Fletcher v. Freeman-Smith Lumber Co. 98 Ark. 206, 135 S. 
 W. 827, holding that brakeman assumed risk of injury caused by steep grade 
 which was open to observation and was his accustomed place of work. 
 
 Cited in footnotes to Cudahy Packing Co. v. Marcan, 54 L. R. A. 258, which 
 holds risk of block on which minor employee works slipping on greasy floor as- 
 sumed; Marino v. Lehmaier, 61 L. R. A. 811, which holds risk of employment not 
 assumed per se, by child whose employment was forbidden by statute because of 
 his immature age. 
 
 Cited in notes (8 L. R. A. 636) on servant's knowledge of defective and dan- 
 gerous machinery; (44 L. R. A. 42) on master's duty to instruct and warn serv- 
 ants as to perils of employment; (1 L.R.A. (N.S.) 280) on assumption of risk by 
 minor employee; (4 L.R.A. (N.S.) 991) on servant's assumption of risk of danger 
 imperfectly appreciated. 
 
 Distinguished in Galveston, H. & S. A. R. Co. v. Hughes, 22 Tex. Civ. App. 138, 
 54 S. W. 264, holding inexperienced brakeman not guilty of contributory negli- 
 gence if ignorant of danger though aware switches not blocked; Graham v. New- 
 burg Orrel Coal & Coke Co. 38 W. Va. 278, 18 S. E. 584, holding miner may work 
 in dangerous mine without contributory negligence where prudent man would 
 not quit, or where lulled to security by assurances of safety. 
 Charge to jury. 
 
 Cited in White v. McCracken, 60 Ark. 619, 31 S. W. 882, condemning charge 
 composed of counsel's submitted instructions, for incompleteness, lack of clarity, 
 and uniformity; Southern Exp. Co. v. Texarkana Water Co. 54 Ark. 132, 15 S. 
 W. 361, condemning charge for inconsistency and inharmoniousness ; Morrison v. 
 McAtee, 23 Or. 534, 32 Pac. 400, reversing for irreconcilable conflict in attorney's 
 instructions given by court; Conlon v. Oregon Short Line R. Co. 23 Or. 507, 32 
 Pac. 397, holding failure to give submitted instructions, no error, though correct; 
 North Arkansas & W. R. Co. v. Cole, 71 Ark. 43, 70 S. W. 312, holding it error 
 for court to assume as undisputed that construction of road subjected land to 
 overflow and buildings to increased exposure to fire. 
 
 Distinguished in Little Rock Traction & Electric Co. v. Morrison. 69 Ark. 292, 
 62 S. W. 1045, refusing to reverse where instruction simple, not misleading, and 
 inconsistent only as to fact. 
 
 7 L. R. A. 286, PIERCE v. WHITTLESEY, 58 Conn. 104, 19 Atl. 513. 
 Construction of contract of employment. 
 
 Cited in Wilson v. Godkin, 136 Mich. 109. 98 N. W. 985, holding clatise for 
 withholding of six days pay till completion of the work was not necessarily a 
 penalty because covering breaches of differing harmfulness. 
 
7 L.R.A. 236] L. R. A. CASES AS AUTHORITIES. 1288 
 
 Cited in note (108 Am. St. Rep. 59) on employment agreements purporting to 
 liquidate damages. 
 
 7 L. R. A. 288, TERRITORY v. EVANS, 2 Idaho, 658, 23 Pac. 115. 
 State prohibition of exportation of game and fish. 
 
 Followed, without discussion, in Territory v. Nelson, 2 Idaho, 651, 23 Pac. 116. 
 
 Cited in footnotes to Smith v. State, 51 L. R. A. 404, which sustains statute 
 prohibiting possession of quail during closed season; State v. Schuman, 47 L. R. 
 A. 153, which sustains statute prohibiting sale, or keeping for sale, of trout; 
 State v. Snowman, 50 L. R, A. 544, which sustains statute requiring license for 
 business of guiding in inland fishing and forest hunting; State v. McGuire, 21 L. 
 R. A. 478, which holds having in possession during closed season fish previously 
 caught not an offense; State v. Mallory, 67 L.R.A. 773, denying right of state to 
 forbid nonresident landowner to take fish and game on his property within the 
 state. 
 
 Cited in note (39 L. R. A. 591) as to governmental control over right of fishery. 
 
 Distinguished in Geer v. Connecticut, 161 U. S. 528, 40 L. ed. 797, 16 Sup. 
 Ct. Rep. 600, Affirming State v. Geer, 61 Conn. 152, 13 L.R.A. 806, 3 Inters. Com. 
 Rep. 734, 22 Atl. 1012, holding prohibition of killing game for transportation out 
 of state, valid, and referring to cited case as having invalidated a like law by 
 reason only of its mode of enforcement. 
 
 Disapproved in Organ v. State, 56 Ark. 271, 19 S. W. 840, holding act prohibit- 
 ing exportation from state of game and fish, not violative of commerce clause; 
 State v. Nergaard, 124 Wis. 419, 102 N. W. 899, upholding statute limiting 
 quantity of fish that may be shipped out of state; Ex parte Fritz, 86 Miss. 219, 
 109 Am. St. Rep. 700, 38 So. 722, upholding local ordinance pursuant to power 
 given, which regulated size of nets to be used. 
 
 7 L. R. A. 289, NEWMAN v. METROPOLITAN ELEV. R. CO. 118 N. Y. 618, 23 
 
 N. E. 901. 
 Damages for taking? property for rig-fat of way. 
 
 Cited in South Buffalo R, Co. v. Kirkover, 176 N. Y. 305, 68 N. E. 366, Affirm- 
 ing 86 App. Div. 60, 83 N. Y. Supp. 613; Rome, W. & O. R. Co. v. Gleason, 42 
 App. Div. 533, 59 N. Y. Supp. 647; Syracuse v. Stacey, 45 App. Div. 254, 61 X. 
 Y. Supp. 165; Re Grade Crossing, 6 App. Div. 335, 40 N. Y. Supp. 520 holding 
 compensation should be for actual value of land taken and adequate compensation 
 for injury to the rest; Metropolitan West Side Elev. R. Co. v. Stickney, 150 111. 
 384, 26 L. R. A. 779, 37 X. E. 1098, holding measure of damages for land not taken 
 for right of way difference between value with and without improvement: Stru- 
 thers v. New York Elev. R. Co. 5 Misc. 240, 25 N. Y. Supp. 81, holding measure 
 of damages for taking of easement is difference in value of land with and with- 
 out easement; Bohm v. Metropolitan Elev. R. Co. 129 N. Y. 585, 590, 14 L. R. A. 
 348, 29 N. E. 802, holding depreciation in value of land not taken by use of prop- 
 erty taken, measure of damages; New York C. & H. R. R. Co. v. Marshall, 120 
 App. Div. 745, 105 N. Y. Supp. 686, holding measure for laying of additional 
 tracks was value of a right of crossing to dissevered lands and diminution of 
 value of them by reason thereof; Re New York, W. & B. R. Co. 73 Misc. 224. 130 
 N. Y. Supp. 1005: Xe\v York v. Merola, 143 App. Div. 514, 127 X. Y. Supp. 944, 
 holding that commissioners in condemnation proceedings may consider property 
 as a whole and it is their duty to give full value of land taken, with consequen- 
 tial damage to that which remains; Genesee River R. Co. v. Boyington. 60 Mi>c. 
 418, 112 X. Y. Supp. 343, holding fee must be paid for to landowner as well as 
 consequential damage where one railroad condemns trackage rights on another's 
 
L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 289. 
 
 right of way; Re Board of Rapid Transit R. Comrs. 328 App. Div. 115, 112 X. Y. 
 Supp. 619, holding abutters who do not own the fee of a street must be paid for 
 the damage to their easement therein and also for damage to their property by 
 a subway; Re New York Bd. of Public Improvement, 99 App. Div. 578, 91 N. Y. 
 Supp. 161, as to the damages recoverable by reason of "consequential" injury. 
 
 Cited in note (19 Am. St. Rep. 458, 460, 22 Am. St. Rep. 50) on damages on 
 condemnation of right of way for railroad. 
 Injury to easement. 
 
 Cited in Sperb v. Metropolitan Elev. R. Co. 137 N. Y. 598, 33 N. E. 319; Book- 
 man v. New York Elev. R. Co. 137 N. Y. 305, 33 N. E. 333, holding lot easements 
 interfered with by erection of elevated road, aside from consequential damages, 
 are of nominal value; Cook v. New York Elev. R. Co. 144 X. Y. 118, 39 X. E. 2, 
 holding erroneous finding as to nominal value of easement harmless, where no 
 substantial benefits resulted to plaintiff's land from building of railroad; Sixth 
 Ave. R. Co. v. Metropolitan Elev. R. Co. 138 N. Y. 551, 34 X. E. 400, holding ab- 
 stract error in refusal to find as to value of easement taken by elevated road, 
 harmless where correct rule as to damages was adopted; Mattlage v. New York 
 Elev. R. Co. 1 Misc. 340, 48 N. Y. S. R. 684, 20 N. Y. Supp. 624, holding plaintiff 
 entitled to mere nominal damages for taking of street easement; Hoffman v. Man- 
 hattan Elev. R. Co. 1 Misc. 156, 48 N. Y. S. R. 712, 20 N. Y. Supp. 625, refusing 
 injunction for mere taking of easement; Macy v. Metropolitan Elev. R. Co. 59 
 Hun, 307. 12 N. Y. Supp. 804, upholding action for damages by lessor, lessee hav- 
 ing released his interest in street easements appropriated by elevated road; 
 Cunard v. Manhattan R. Co. 1 Misc. 153, 20 N. Y. Supp. 724, holding refusal to 
 limit injury to fee through taking of street easement, to nominal damages, ex- 
 cluding depreciation of remaining property thereby, proper; Hadden v. Metropoli- 
 tan Elev. R. Co. 75 Hun, 66. 26 X. Y. Supp. 995. reversing judgment for referee's 
 erroneous refusal to find plaintiff's only property in street consisted of easements 
 of light, air. and access; Moore v. New York Elev. R. Co. 4 Misc. 135, 23 X. Y. 
 Supp. 863, holding abutting owner at least entitled to nominal damages by rea- 
 son of construction of elevated railroad. 
 
 Cited in footnotes to Metropolitan West Side Elev. R. Co. v. Stickney, 26 L. R. 
 A. 773. which denies right to compensation in eminent domain where value of 
 property not depreciated; Aldrich v. Metropolitan West Side Elev. R. Co. 57 L. 
 R. A. 237, which denies right to recover for injury to apartment house from ele- 
 vated road crossing highway 19 feet away; De Geofroy v. Merchants' Bridge Ter- 
 minal R. Co. 04 L. R. A. 950. which holds abutting owner entitled to compensa- 
 tion for damages resulting from building of elevated railroad in street. 
 Character of fund paid as damages. 
 
 Cited in Ford v. Livingston. 140 N. Y. 166, 35 N. E. 437, holding money paid 
 for consequential damages to lot easements by erection of elevated road, retains 
 character of real estate upon lunatic owner's death. 
 Offsetting benefits agrainst eonseqnential damages. 
 
 Cited in Mattlage v. Xew York Elev. R. Co. 14 Misc. 294, 35 N. Y. Supp. 704; 
 Xette v. Xo\v York Elev. R. Co. 1 Misc. 342, 48 N. Y. S. R. 724, 20 X. Y. Supp. 
 27; Huggins v. Manhattan R. Co. 1 Misc. 112, 20 N. Y. Supp 648; Purdy v. 
 Manhattan Elev. R. Co. 36 X. Y. S. R. 44, 13 N. Y. Supp. 295; Rich v. Xew York 
 T :iov. R. Co. 16 Daly, 519. 14 X'. Y. Supp. 167; Welsh v. New York Elev. R. Co. 16 
 Daly. 516, 12 X. Y. Supp. 545; Sutro v. Manhattan R. Co. 137 N. Y. 593, 33 X. 
 E. 334: Kearney v. Metropolitan Elev. R. Co. 27 Jones & S. 564, 13 N. Y. Supp. 
 60:; Gray v. Manhattan R. Co. 16 Daly, 511, 12 X. Y. Supp. 542; Odell v. Xew 
 York Elev. R. Co. 130 X. Y. 691, 3 Silv. Ct. App. 668, 29 X. K. '.'OS; Odell v. Met- 
 ropolitan Elev. R. Co. 3 Misc. 337, 22 X. Y. Supp. 737 holding that benefits 
 
7 L.R.A. 289] L. R. A. CASES AS AUTHORITIES. 1290 
 
 be taken into consideration in fixing amount of consequential damages; 
 Buek v. Metropolitan R. Co. 73 Hun, 254. 25 X. Y. Supp. 104S, holding refusal 
 to charge that plaintiff could only recover damages for building of road to extent 
 disadvantages exceeded advantages, erroneous; Werfelman v. Manhattan R. Co. 
 16 Daly, 359, 11 N. Y. Supp. 66, holding not error to refuse to find as abstract 
 proposition that benefits should be set off against damages; Brush v. Manhattan 
 R. Co. 26 Abb. N. C. 80, 13 N. Y. Supp. 908, holding plaintiff cannot recover for 
 damages to easement by elevated road without showing substantial damages; 
 Pratt v. New York C. & H. R. R. Co. 90 Hun, 88-, 35 N. Y. Supp. 557, holding 
 injunction will not be issued without proof of substantial damages; Doyle v. 
 Manhattan R. Co. 32 N. Y. S. R. 72, UN. Y. Supp. 65, granting re-argument, 
 after reversal for exclusion of evidence of enhanced value of property, when simi- 
 lar evidence was admitted without objection ; Sixth Ave. R. Co. v. Manhattan R. 
 Co. 14 X. Y. Supp. 97, refusing to find property in front of which elevated ro:id 
 station had been built, had been benefited thereby; Struthers v. New York Elev. 
 R. Co. 5 Misc. 241, 25 N. Y. Supp. 81, holding referee's finding on conflicting evi- 
 dence of no benefits resulting from building of road, conclusive unless clearly 
 wrong; Cheney v. Syracuse, O. & N. Y. R. Co. 8 App. Div. 620, 40 N. Y. Supp. 
 1103, awarding damages to abutting landowner for injury by railroad, following 
 rule as to consideration of benefits; Re Grade Crossing, 154 N. Y. 557, 49 N. E. 
 127, holding under grade-crossing act abutting owners entitled to compensation 
 for consequential damages through change in street grade ; Skeljy v. New York 
 Elev. R. Co. 7 Misc. 92, 27 N. Y. Supp. 304, upholding refusal to find special ben- 
 efits should be offset against consequential damages, after previous finding of no 
 special benefit; Re New York, 64 Misc. 269, 118 N. Y. Supp. 580, holding in pro- 
 ceedings to acquire lands in the city of New York for streets, the commissioners 
 of estimate and assessment may not set off against the damages for taking por- 
 tions of lots benefits to the portions not taken arising from the use of the portions 
 taken as streets; Eutaw v. Botnick, 150 Ala. 434, 43 So. 739, on restriction of 
 offset to consequential damages; Lehigh Valley R. Co. v. New York, 66 Misc. 
 434. 123 N. Y. Supp. 378, as to assessment of benefits in offset to damages for 
 land not taken but damaged; Manhattan R. Co. v. Stuyvesant, 126 App. Div. 
 850, 111 N. Y. Supp. 222, holding in estimating the damage caused by taking 
 easements of light and air the possible benefits to the realty abutting may be 
 considered. 
 
 Cited in footnotes to Schroeder v. Joliet, 52 L. R. A. 634, which authorizes 
 consideration of benefit from improvement in assessing damages from cutting 
 down street; Beveridge v. Lewis, 59 L. R. A. 581, which denies right to deduct 
 benefits from damages in exercise of eminent domain by individual. 
 
 Cited in note (9 L.R.A. (N.S.) 812, 843) on right to set off benefits against 
 damages on condemnation. 
 
 Distinguished in Korn v. New York Elev. R. Co. 39 N. Y. S. R. 323, 15 N. Y. 
 Supp. 10, holding not error to refuse to recognize special benefits by building of 
 road, where proof was not sufficient to justify such finding; Re Brooklyn Elev. 
 R. Co. 87 Hun, 105, 33 N. Y. Supp. 974, holding depreciation in value of one piece 
 of property in condemnation proceedings should not be set off against advantage 
 to others; Lewiston & Y. F. R. Co. v. Ayer, 27 App. Div. 575, 50 N. Y. Supp. 502, 
 holding damages awarded for taking strip of land for right of way cannot be off- 
 set by plaintiff's right of transportation on road; Re New York, 190 N. Y. 360. 
 16 L.R.A. (N.S.) 339, 83 N. E. 299, 13 A. & E. Ann. Cas. 598, holding benefits from 
 a public improvement to land not taken cannot be set off against the value of the 
 land taken, where no question of assessment of benefits is involved and the taking 
 vests the fee in the public which may, at discretion, abandon the improvement 
 
1291 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 293 
 
 and divert the land to other uses; Re Bradley. 68 Misc. 515, 125 N. Y. Supp. 142, 
 holding that in proceedings to appraise damages for change of grade under 
 section 59 of Village Law. benefits conferred by paving newly graded street are 
 not properly an offset to injuries done by regrading. 
 
 7 L. R. A. 293, BAXTER v. BROOKLYN L. INS. CO. 119 N. Y. 450, 23 N. E. 
 
 1048. 
 Forfeiture of life insurance policy by default after notice. 
 
 Cited in Stokes v. Amerman, 121 X. Y. 343, 24 N. E. 819, holding no policy 
 forfeited until after statutory thirty-day notice given; Osborne v. Home L. Ins. 
 Co. 123 Cal. 612, 56 Pac. 616, holding no forfeiture for nonpayment of premium 
 without thirty-day statutory notice ; Kentucky Life & Acci. Ins. Co. v. Kaufman, 
 102 Ky. 12, 42 S. W. 1104, holding policy to remain in effect for thirty days 
 after notice of nonpayment; Rosenplanter v. Provident Sav. L. Ins. Co. 46 L. R. 
 A. 475. 37 C. C. A. 570, 96 Fed. 725, holding life of policy dependent upon payment 
 within thirty days after notice, stipulations to contrary notwithstanding; 
 Mutual L. Ins. Co. v. Hill, 55 C. C. A. 540, 118 Fed. 712, holding stipulation in 
 policy providing for construction as if contract were made in New York, binding 
 on company on question of forfeiture; Howell v. John Hancock Mut. L. Ins. Co. 
 107 App. Div. 202, 95 N. Y. Supp. 87, holding evidence insufficient to show mail- 
 ing of requisite notice; Rowe v. Brooklyn L. Ins. Co. 11 App. Div. 537, 42 N. Y. 
 Supp. 646, holding sending of notice to person who had been accustomed to pay 
 the premiums on his own life was good: Linn v. New York L. Ins. Co. 78 Mo 
 App. 204; Auspitz v. Equitable Life Assur. Co. 62 Misc. 470, 115 N. Y. Supp. 
 109, holding mere proof of nonpayment of premiums when due will not defeat an 
 action upon a policy of life insurance, unless coupled with a proof of service of 
 notice of forfeiture as required by statute; Adam -v. Manhattan L. Ins. Co. 204 
 N. Y. 360, 97 N. E. 740, to the point that policy of insurance issued while statute 
 is in force regulating forfeiture is deemed to have been issued subject to pro- 
 visions thereof. 
 
 Cited in footnote to McQuillan v. Mutual Reserve Fund Life Asso. 56 L. R. A. 
 233, which holds forfeiture of policy waived by retaining payment made after 
 default without notice of any condition affixed. 
 
 Cited in note (63 L. R. A. 848 ^ on ronflirt of laws as to contracts of insurance. 
 
 Distinguished in Mutual L. Ins. Co. v. Cohen, 179 U. S. 268, 45 L. ed. 185, 21 
 Sup. Ct. Rep. 106, holding New York statutes do not apply to or control policy 
 issued to citizen of Montana by Xew York company. 
 Notice of nonpayment condition precedent to attacking policy. 
 
 Cited in Knight v. Supreme Court, O. of C. F. 2 Silv. Sup. Ct. 456, 24 N. Y. S. 
 R. 847. 6 N. Y. Supp. 427, holding nonpayment of assessment unavailable as de- 
 fense when insured was not given notice required by by-laws; Mullen v. Mutual 
 L. Ins. Co. 89 Tex. 262, 34 S. W. 605 ; Equitable Life Assur. Soc. v. Nixon, 26 C. 
 C. A. 624, 26 U. S. App. 482, 81 Fed. 800 and Hicks v. National L. Ins. Co. 9 C. 
 C. A. 218, 20 U. S. App. 410, 60 Fed. 692: McMaster v. New York L. Ins. Co. 40 
 C. C. A. 148, 99 Fed. 886 : New York L. Ins. Co. v. Dingley, 35 C. C. A. 248, P3 
 Fed. 157, holding failure to give statutory notice of default in payments pro- 
 hibits forfeiture of policy by company. 
 
 Cited in footnote to Mutual L. Ins. Co. v. Hill, 49 L. R. A. 127, which requires 
 notice of accrual of premium before forfeiting policy for nonpayment. 
 
 Cited in note (14 L. R, A. 283) on payment of premium after death to keep 
 insurance in force. 
 
 Distinguished in Johnson v. New York L. Ins. Co. 109 Iowa, 710, 50 L. R. A. 
 100, footnote p. 99, 78 N. W. 905, holding change of policy into nonforfeitable 
 
7 L.R.A. 293] L. R. A. CASES AS AUTHORITIES. 1292 
 
 paid-up policy for fixed period makes statutory notice unnecessary after default. 
 
 Questioned in Griesemer v. Mutual L. Ins. Co. 10 Wash. 211, 38 Pac. 1034, hold- 
 ing till statutory notice no advantage to company derived from nonpayment of 
 premium. 
 When tender of premium unnecessary. 
 
 Cited in Mutual L. Ins. Co. v. Hill, 49 L. R. A. 132, 38 C. C. A. 159, 97 Fed. 
 270, holding tender unnecessary before action, as no forfeiture unless company 
 prove nonpayment after notice; Fischer v. Metropolitan L. Ins. Co. 167 X. Y. 
 183, 60 N. E. 431, Affirming 37 App. Div. 581, 56 N. Y. Supp. 260, holding one not 
 required to show payment on day fixed, policy remaining valid till end of notice 
 of default. 
 
 7 L. R. A. 295, STATE v. CREEDEN, 78 Iowa, 556, 43 X. W. 673. 
 Manufacture and sale of intoxicating- liquors. 
 
 Cited in footnotes to Com. v. Fowler, 33 L. R. A. 839, which sustains restraint 
 of sales of liquor by druggists for medicinal purposes except on physician's pre- 
 scription; Bennett v. Pulaski, 47 L. L. R. 278, which sustains ordinance for clos- 
 ing saloons between ten and four at night and on Sundays, but not requirement 
 for removing curtains on front doors and windows; Landry v. New Iberia, 56 L. 
 R. A. 285, which denies city's power to arbitrarily declare particular licensed sa- 
 loon a nuisance; State v. Gerhardt, 33 L. R. A. 313, which upholds requirement 
 for locking doors of room where liquor sold during prohibited hours; Gage v. 
 Harvey, 43 L. R. A. 143, w r hich holds loss of money taken from intoxicated per- 
 son's pocket not included in damages from sale of liquor to him; Laugel v. Bush- 
 nell, 58 L. R. A. 266, which sustains ordinance declaring places where hop ale, 
 hop and malt mead, and cider sold, nuisances; Kirkland v. State, 65 L.R.A. 76 
 which holds proceedings to condemn and destroy liquor kept for sale in prohibited 
 district not criminal; State ex rel. Galle v. Xew Orleans. 67 L.R.A. 70, which 
 denies right to refuse liquor license on objection of minority property holders or 
 on ground that no more barrooms are needed. 
 
 Cited in notes (9 L. R. A. 782, 10 L. R. A. 82) on laws prohibiting manufacture 
 and sale of intoxicating liquors; (46 L. R. A. 417) on liability of carrier for 
 transporting liquors; (4 L.R.A. (N.S.) 810) on injunction against saloon be- 
 . cause of character of locality; (15 L.R.A. (N.S.) 925) on constitutional right to 
 prohibit sale of intoxicants. 
 
 7 L. R. A. 302, GRISWOLD v. WEBB, 16 R. I. 649, 19 Atl. 143. 
 Control of carriers and innkeepers over their premises. 
 
 Cited in Godbout v. St. Raul Union Depot Co. 79 Minn. 197, 47 L. R, A. 536, 
 81 N. W. 835; Philadelphia & R. R. Co. v. Godfrey, 19 Montg. Co. L. Rep. 130. 
 28 Pa. Co. Ct. 328; Donovan v. Pennsylvania Co. 61 L. R. A. 143, 57 C. C. A. 364, 
 120 Fed. 217 upholding right of railroad company to grant exclusive privilege to 
 one hackman to solicit passengers on its premises; Hedding v. Gallagher, 72 N. 
 H. 393, 64 L. R. A. 821, 57 Atl. 225. upholding right of railroad company to 
 grant exclusive privilege of entering upon its premises for purpose of carrying 
 baggage of passengers; Lucas v. Herbert. 148 Ind. 66, 37 L. R. A. 377, 47 X*. E. 
 146, upholding right of railroad company to designate where hacks and omni- 
 fmses shall stand on its premises; New York, N. H. & H. R. Co. v. Bork, 23 K.. 
 I. 222, 49 Atl. 965, upholding right of carrier to exclude hackmen from soliciting 
 passengers on its premises; Cosgrove v. Augusta, 103 Ga. 839, 42 L. R. A. 714, 68 
 Am. St. Rep. 149, 31 S. E. 445, denying right of city to exclude omnibus drivers 
 from soliciting passengers in railroad station; State v. Steele, 106 X. C. 783, 8 
 L. R, A. 523, 19 Am. St. Rep. 573, 11 S. E. 478, upholding right of innkeeper 
 
1293 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 304 
 
 to exclude liverymen from soliciting business in his hotel; Cosgrove v. Augusta r 
 303 Ga. 839, 42 L.R.A. 711, 68 Am. St. Rep. 349, 31 S. E. 445, to the point that 
 railroad may exclude persons who come on grounds to transact private business 
 such as selling lunches or soliciting passengers. 
 
 Cited in notes (22 Am. St. Rep. 702; 16 L.R.A.(N.S.) 780) on right to dis- 
 criminate between solicitors of patronage at depots, wharves, etc. 
 
 7 L. R. A. 304, WOOD v. BULLARD, 151 Mass. 324, 25 X. E. 67. 
 
 Action after distribution to charge heir with share of claim, in Bullard v. Moor, 
 158 Mass. 422, 33 N. E. 928, and Bullard v. Perry, 66 Vt. 481. 29 Atl. 787. 
 Gifts to heirs surviving at happening: of event. 
 
 Followed in Peck v. Carlton, 154 Mass. 234, 28 N. E. 166, holding members of 
 class to wnom gift given means those living at event occurring after decease of 
 testator. 
 
 Cited in Proctor v. Clark, 154 Mass. 48, 12 L. R. A. 724, 27 N. E. 673, holding 
 terms "then heirs'" of devisee refer to those surviving at happening of event sub- 
 sequent to testator's death; Wason v. Ranney, 167 Mass. 160, 45 N. E. 85, hold- 
 ing in deed to life tenant, then to heirs, heirs take as of tenant's decease; Cod- 
 man v. Brooks, 167 Mass. 504, 46 N. E. 102, holding next of kin determined as of 
 fixed date without reference to death of testator; Bigelow v. Clap, 166 Mass. 91, 
 43 X. E. 1037, holding words "who may then be living" refer to those surviving 
 occurrence of certain event; Welch v. Brimmer, 169 Mass. 212, 47 N. E. 699, 
 holding heirs of testator those determined upon death of sole devisee without is- 
 sue; Heard v. Read, 169 Mass. 223, 47 N. E. 778, holding testator's heirs living 
 at life tenant's death, meant by provision in will that at "her decease" that re- 
 mainder shall be divided among testator's heirs at law as though he died intes~ 
 tate; Pulse v. Osborn, 30 Ind. App. 633, 64 N. E. 59, holding devise to daughter, 
 conditioned that in case of her death before grandchildren of testatrix it should 
 go to grandchildren, determinable fee; Boston Safe Deposit & T. Co. v. Blanchard, 
 196 Mass. 40, 81 N. E. 654, holding limitation over after numerous and astute 
 provisions for wife and immediate family was contingent on failure of descendants 
 at future time; Clarke v. Fay, 205 Mass. 232, 27 L.R.A. (N.S.) 458, 91 N. E. 328, 
 to the point that under will giving estate to children for life and upon death 
 of testator's children leaving issue then living, to such children, the words then 
 living have reference to death of child and not of testator; Wallace v. Diehl, 202 
 X. Y. 161, 33 L.R.A. (X.S.) 16, 95 X. E. 646, holding that under bequest to pay 
 income to children for life and after decease of survivor of them to distribute 
 fund to those who may take as my heirs, persons to take are those who were 
 heirs at testator's death. 
 
 Cited in footnote to Allison v. Allison, 63 L.R.A. 920, which holds that devise 
 of remainder at death of life tenant to be divided among testator's heirs at law 
 refers to heirs living at testator's death. 
 
 Cited in notes (33 L.R.A. (N.S.) 4, 6, 19, 40) on time for ascertaining who 
 take under gift over to testator's "heirs," "next of kin," etc: (25 Eng. Rul. Cas. 
 612) on time of vesting of gift by will to such of a class as fulfill a certain con- 
 dition; (25 Eng. Rul. Cas. 697) on time of vesting of contingency over to testat- 
 or's heirs, or next of kin. 
 Creation of contingent remainder. 
 
 Cited in Eager v. Whitney, 103 Mass. 466, 40 X. E. 1046, holding will providing 
 for distribution in future to ''then heirs" as in intestacy creates contingent re- 
 mainder; Pollock v. Farnham, 156 Mass. 391, 31 N. E. 298, holding gift to lega- 
 tee after death of life tenant falls into residuum upon death before life tenant. 
 
7 L.R.A. 304] L. R. A. CAPES AS AUTHORITIES. 1294 
 
 Etetoppel. 
 
 Cited in Girard F. & M. Ins. Co. v. Canan, 195 Pa. 592, 46 Atl. 115, holding one 
 setting up estoppel must show grounds therefor. 
 
 Distinguished in Dole Bros. Co. v. Cosmopolitan Preserving Co. 167 Mass. 483, 
 57 Am. St. Rep. 477, 46 N. E. 105, holding sureties, having reasonable cause to be- 
 lieve that agent had no power to execute bond but not actually knowing it, not 
 estopped to set up lack of power as defense. 
 
 7 L. R. A. 309, RANDALL v. EVENING NEWS ASSO. 79 Mich. 266, 44 X. W. 
 
 783. 
 
 Second appeal in 97 Mich. 137, 56 N. W. 361. 
 Libel per se. 
 
 Cited in Thibault v. Sessions, 101 Mich. 283, 59 N. W. 624, holding an article 
 commonly understood to charge teacher with indecent and criminal liberties with 
 pupils' persons, in which plaintiff has assisted, actionable per se ; Field v. Main -o. 
 122 Mich. 558, 81 N. W. 354, holding publication pending election imputing re- 
 mark by politician of ability to buy all votes of certain class, and that this indi- 
 cates how election to be carried, libelous per se; Owen v. Dewey, 107 Mich. 72, 65 
 N. W. 8, holding newspaper's publication of accusation of criminal offense in at- 
 tempting to bribe legislator, not privileged although in good faith. 
 
 Cited in footnotes to Augusta Evening News v. Radford, 20 L. R. A. 533, which 
 holds newspaper article charging constable with soliciting business for magis- 
 trates' courts libelous; Upton v. Hume, 21 L. R. A. 493, which holds false impu- 
 tation of crime to candidate not privileged ; Coffin v. Brown, 55 L. R. A. 732, which 
 denies right to falsely attack character of appointee of governor to prevent lat- 
 ter's re-election; Wofford v. Meeks, 55 L. R. A. 214, which holds libelous, publi- 
 cation imputing to county officials prostitution of county finances by awarding 
 contracts to persons of same political faith; Eikhoff v. Gilbert, 51 L. R, A. 451, 
 which denies privilege to circular addressed to voters announcing that candidate 
 for re-election has championed legislation opposed to moral interests of commun- 
 ity; State v. Hoskins, 47 L. R. A. 233, holding publication of charges against can- 
 didate for office of judge, not privileged although published outside the judicial 
 district; Star Pub. Co. v. Donahoe, 65 L.R.A. 980, which holds newspaper pub- 
 lication charging candidate for office with a criminal offense, not privileged. 
 
 Cited in note (8 L. R. A. 193) as to what constitutes libel or slander. 
 Allegation of special damage. 
 
 Distinguished in Smedley v. Soule, 125 Mich. 197, 84 N. W. 63, holding plaintiff 
 for libel cannot recover for damage in his profession unless alleged. 
 N (**!! y of innuendo -where libel plain. 
 
 Cited in Sanford v. Rowley, 93 Mich. 123, 52 N. W. 1119, holding innuendo 
 surplusage w r here meaning of language charged as libelous, plain. 
 
 7 L. R. A. 313, FARMERS & M. NAT. BANK v. LOFTUS. 133 Pa. 97, 19 Atl. 347. 
 Capacity of married -woman to contract. 
 
 Cited in Lewis v. Linton, 24 Pa. Co. Ct. 189 holding contract made and executed 
 in foreign country between subjects thereof, enforceable according to lex loci 
 contractus; Harrar v. Croney, 13 Pa. Co. Ct. 194, 2 Pa. Dist. R. 375, 32 W. X. 
 C. 91, 10 Lane. L. Rev. 359, holding wife's note for husband's debt valid as not 
 within inhibition of accommodation indorsement or guaranty by married woman; 
 Thompson v. Minnich, 227 111. 438, 81 N. E. 336, holding indenture of adoption 
 with provision for inheritance from married woman w 7 as void and incapable 
 of ratification. 
 
1295 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 316 
 
 Cited in notes (57 L.R.A. 523) as to conflict of laws as to capacity of married 
 woman to contract; (33 L.R.A.(X.S.) 742) on validity of new promise by woman 
 after removal of, to pay debt incurred during disability. 
 Conflict of laws as to pledges and sales. 
 
 Cited in Swedish- American Nat. Bank v. First Nat. Bank, 89 Minn. 115, 99 Am. 
 St. Rep. 549, 94 N. W. 218, holding that validity of pledge is to be determined 
 according to law of state where pledged property is situated; First Nat. Bank v. 
 Dean, 28 Jones & S. 305, 16 X. Y. Supp. 107, 17 N. Y. Supp. 375, holding law of 
 Xt-w York governed where goods were stored there and parties sued there, as to 
 rights of bona fide transfer of warehouse receipts. 
 
 Cited in note (64 L. R. A. 829) on conflict of laws as to sales of personal 
 property. 
 
 7 L. R. A. 316, RUPARD v. CHESAPEAKE & O. R, CO. 88 Ky. 280, 11 S. W. 70. 
 Warning;* at rail-tray crossings. 
 
 Cited in Cowen v. Watson, 91 Md. 353, 46 Atl. 996, holding question for jury 
 whether blowing of whistle directly over highway crossing was negligent: John- 
 son v. Southern P. R. Co. 147 Cal. 630, 1 L.R.A. (X.S.) 311, 82 Pac. 306, 3 
 A. & E. Ann. Cas. 358, holding it duty of railroad under statute to signal ap- 
 proach to overgrade as well as to grade crossings; St. Louis & S. F. R. Co. v. 
 Morrison, 73 Kan. 267, 85 Pac. 295, as to duty at private crossings not on grade; 
 Louisville & N. R. Co. v. Shearer, 119 Ky. 651, 59 S. W. 330, holding it for jury 
 where a signal might have been worse than none, but because of its omission 
 plaintiff was at bridge when train passed; Louisville & N. R. Co. v. Sawyer, 11-3 
 Tenn. 96, 69 L.R.A. 665, 108 Am. St. Rep. 881, 86 S. W. 386, 4 A. & E. Ann. Cas. 
 948, holding duty not absolute at overhead crossing but if in fact it is dangerous, 
 proper signal must be given, the question being for jury. 
 
 Cited in footnote to Louisville & X. R. Co. v. Sawyer, 69 L.R.A. 662, which 
 holds duty to sound warnings when trains approach trestle over highway depend- 
 ent on dangerous character of the place. 
 
 Cited in notes (9 L. R. A. 159, 11 L. R. A. 385) on duty of railroad to warn 
 travelers on approach to highway crossings; (24 Am. St. Rep. 507) on duty to 
 give signals at railway crossings. 
 
 Distinguished in Conway v. Louisville & N. R. Co. 135 Ky. 240, 119 S. W. 206, 
 holding under the evidence failure to give warning at crossing was not proximate 
 cause of injury 
 
 Questioned in Everett v. Great Northern R. Co. 100 Minn. 324, 9 L.R A. ( N.S. ) 
 710, 111 N. W. 281, 10 A. & E. Ann. Cas. 294, holding a railway company is not 
 under a legal duty to give the signal required by a statute for the benefit of a 
 person who is driving a team along a street parallel to the railway track near 
 a crossing, but who does not intend to use the crossing. 
 Contributory negligence. 
 
 Cited in Cowen v. Watson, 91 Md. 355, 46 Atl. 996, holding at dangerous cross- 
 ing care and caution is mutual and reciprocal. 
 
 Cited in footnotes to Louisville & X. R. Co. v. Webb, 11 L. R. A. 674, which 
 holds failure to use senses before crossing track not excused by unlawful speed 
 of train and watchman's failure to do duty; Oleson v. Lake Shore & M. S. R. Co. 
 32 L. R. A. 149, which holds it negligent to attempt to cross track immediately 
 after passage of train whose smoke obstructs view;. Woehrle v. Minnesota Trans- 
 fer R. Co. 52 L. R. A. 349, which holds traveler's failure to look and listen when 
 watchman absent not negligence per se ; Lorenz v. Burlington, C. R. & X. R. Co. 
 56 L. R. A. 753, which holds negligence of one pursuing cow in not looking and 
 
7 L.R.A. 316] L. R. A. CASES AS AUTHORITIES. 1296 
 
 listening before crossing railroad track for jury; Keenan v. Union Traction Co. 
 58 L. R. A. 217, which holds failure to look for train within 35 feet of track, 
 negligence; Passman v. West Jersey & Seashore R. Co. 61 L. R. A. 609, which 
 holds cutting of train on side track at highway crossing not invitation to cross 
 without using ordinary precaution ; Colorado & Southern R. Co. v. Thomas, 70 
 L.R.A. 681, which holds failure to look and listen before crossing track not ex- 
 cused by existence of building adjoining highway which would obstruct view of 
 tracks and by noise created therein which would prevent hearing approaching 
 train. 
 
 Cited in notes (13 L.R.A. 75) on liability of street car company for injury to 
 pedestrians; (6 L.R.A. (N.S.) 150) on duty to stop, look and listen upon ap- 
 proaching overhead or underground crossings. 
 Duty of carrier at crossings. 
 
 Cited in footnote to Birmingham Mineral R. Co. v. Jacobs, 12 L. R. A. 830, 
 which holds failure to stop train before crossing track of other railroad not ex- 
 cused by fact that rear of train would be left standing across other track. 
 Duty of carrier as to speed of trains. 
 
 Cited in note (11 L. R. A. 435) on rate of speed of railway trains. 
 Duty of owner to keep bnildingr safe. 
 
 Cited in note (11 L. R. A. 361) on duty of owner of building to keep it in safe 
 condition. 
 
 7 L. R, A. 319, STATE ex rel. KOHLER v. CINCINNATI, W. & B. R. CO. 47 
 
 Ohio St. 130, 23 N. E. 928. 
 Interstate commerce. 
 
 Cited in Lake Shore & M. S. R, Co. v. State, 8 Ohio C. C. 224, holding state law 
 requiring at least three passenger trains each way to stop at all places of over 
 3,000 inhabitants to receive and let off passengers, not regulation of interstate 
 commerce; Lake Shore & M. S. Ry. Co. v. State, 8 Ohio C. C. 224, 4 Ohio C. D. 
 407, sustaining statute requiring three trains a day each way to stop in citiea 
 having over three thousand inhabitants as not being an interference with inter- 
 state commerce. 
 Franchise rig-lits. 
 
 Cited in State ex rel. Snyder v. Portland Natural Gas & Oil Co. 153 Ind. 487, 53 
 L. R. A. 415, 74 Am. St. Rep. 314, 53 N. E. 1089, holding corporation for produc- 
 tion of oil and gas may forfeit franchise by contract with competitor fixing prices 
 and binding it to supply latter's customers; State ex rel. Hadley v. Delmar 
 Jockey Club, 200 Mo. 73, 98 S. W. 539, holding agricultural society which disused 
 its franchises and property save for unlawful racing might be dissolved and fined. 
 
 Cited in footnote to State v. Mt. Hope College Co. 52 L.R.A. 365. which au- 
 thorizes dissolution of education institution for sale of diplomas without regard 
 to merit. 
 
 Cited in note (9 L. R. A. 37) as to forfeiture of franchise. 
 Oppressive discrimination by carriers. 
 
 Cited in Murray v. Chicago & N. W. R. Co. 35 C. C. A. 66, 92 Fed. 872, holding 
 shipper has action at common law to recover freights unjustly discriminating 
 against him; Logan Coal Co. v. Pennsylvania R. Co. 154 Fed. 504, 16 Pa. Dist. 
 R. 641. holding cars of a coal shipper and foreign cars used by it should be reck- 
 oned as part of its share in alloting car service; Johnson Coal Min. Co. v. Hock- 
 ing Valley Ry. 1 N. P. N. S. 391, 14 Ohio S. & C. P. Dec. 214, holding that both 
 at common law and under the statute a common carrier could not discriminate 
 against one shipper in favor of another and equity would enjoin such discrim- 
 
1297 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 323 
 
 illation; Haring- Wilson Coal Co. v. Wheeling & L. E. Ry. 4 Ohio L. Rep. 655, 
 holding that railroad cannot discriminate in allotment of cars in favor of shipper 
 furnishing cars; State v. Union Gas & Electric Co. 13 Ohio C. C. N. S. 13, holding 
 that discrimination without substantial injury is legal: State v. Central Lumber 
 Co. 24 S. D. 167, L.R.A.(N.S.) , 123 X. W. 503, to the point that public serv- 
 ice corporation cannot discriminate in rates to different persons for purpose of 
 getting business; Menominee River Boom Co. v. Augustus Spies Lumber &, Cedar 
 Co. 147 Wis. 569, 132 N. W. 1118, holding that charges of public service corpora- 
 tion must be uniform in dealing with different persons under similar circum- 
 stances. 
 
 Cited in footnote to Central of Georgia R. Co. v. Augusta Brokerage Co. 69 
 L.R.A. 119. which sustains carrier's right to discriminate against cotton seed by 
 refusing to issue through bills of lading or to furnish cars connecting carriers if 
 all shippers of such commodity are treated alike. 
 
 Cited in notes (18 L.R.A. 105) as to right of carrier at common law to dis- 
 criminate between passengers or shippers; (5 Eng. Rul. Cas. 378) on discrimina- 
 tion by carrier as to accepting and carrying goods. 
 
 Distinguished in Cleveland, C. C. & I. R, Co. v. Closser, 126 Ind. 353, 9 L. R. A. 
 754, 3 Inters. Com. Rep. 391, 22 Am. St. Rep. 593, 26 N. E. 159, holding mere 
 fact of discrimination will not invalidate contract with carrier. 
 Illegral combinations and char&es. 
 
 Cited in State ex rel. Crow v. Armour Packing Co. 173 Mo. 393, 61 L. R. A. 
 464, 96 Am. St. Rep. 515, 73 S. W. 645, imposing fine of $5,000 upon corporations 
 guilty of entering into illegal pool. 
 
 Cited in note (63 L. R. A. 762, 764) on quo warranto against corporations for 
 making illegal charges in the course of authorized business. 
 Rig-hts of owners of private equipment. 
 
 Cited in Procter & G. Co. v. United States, 188 Fed. 228, upholding rule im- 
 posing demurrage charge upon privately owned tank cars standing upon private 
 tracks as reasonable regulation to avoid delay in shipment by preventing with- 
 drawal of proper equipment from actual service. 
 
 7 L. R. A. 323, SMITH v. GEORGIA P. R. CO. 88 Ala. 538, 16 Am. St. Rep. 63, 
 
 7 So. 119. 
 Xegligrence toward passenger. 
 
 Cited in St. Louis & S. W. R. Co. v. Johnson, 59 Ark. 130, 26 S. W. 593, hold- 
 ing passenger may rely upon carrier's invitation to alight by calling station and 
 stopping train thereat, at night; Alabama G. S. R. Co. v. Hill, 93 Ala. 521, 30 
 Am. St. Rep. 65, 9 So. 722, requiring strict diligence of carrier in providing for 
 safety of passengers; Southern R. Co. v. Lollar, 135 Ala. 379, 33 So. 32, holding 
 passenger entitled to recovery for injury from starting train while he is alight- 
 ing at destination; Smitson v. Southern P. R. Co. 37 Or. 80, 60 Pac. 907, holding 
 passenger may recover for injury in attempting to alight at night at brakeman's 
 suggestion, by train started after stop of fifteen seconds; Midland Valley R. Co. 
 v. Page, 182 Fed. 129, holding that question whether stopping of train after 
 calling station before reaching platform and starting it suddenly without warn- 
 ing to passengers is question for jury; Hunter v. Louisville & X. R. Co. 150 Ala. 
 602, 9 L.R.A.(X.S.) 851, 43 So. 802, holding it contributory negligence in passen- 
 ger who undertook to alight after calculating speed and in place with which he 
 was familiar: McMelon v. Illinois C. R. Co. 126 La. 610, 52 So. 783, holding that 
 carrier was not liable for injury to passenger who fell from train in night time 
 while attempting to alight where train made slight stop before reaching platform, 
 L.R.A. Au. Vol. I. 82. 
 
7 L.R.A. 323] L. R. A. CASES AS AUTHORITIES. 1298 
 
 where she acted hastily and was familiar with station; Farrell v. Great Northern 
 R. Co. (Farrell v. Chicago G. W. R. Co.) 100 Minn. 364, 9 L.R.A.(N.S.) 1115, 
 111 N. W. 388, holding it contributory negligence to alight after a call of the 
 station at a place which is obviously not a proper stopping place. 
 
 Cited in notes (8 L. R. A. 674) as to carrier's duty to use care for safety of 
 passengers; (15 L.R.A. 348) as to announcement of stations by carriers; (2 
 L.R.A.(N.S.) 116) on assumption of passenger that car will stop at proper place 
 for alighting. 
 
 Distinguished in Richmond & D. R. Co. v. Smith, 92 Ala. 238, 9 So. 223, hold- 
 ing carrier liable for injuries to passenger in alighting at 5 o'clock on dark morn- 
 ing when, after station twice called, train stopped 75 feet from station; St. Louis, 
 I. M. & S. R. Co. v. Farr, 70 Ark. 271, 08 So. 243, allowing recovery for injury to 
 passenger alighting when train stopped after station called, where surroundings 
 give no warning that station not reached. 
 
 7 L. R. A. 325, JONES v. STATE, 28 Neb. 495, 44 N. W. 658. 
 Expulsion of members l>y church society. 
 
 Cited in Von Hoven v. Immanuel Presby. Church, 108 La. 276, 32 So. 389, hold- 
 ing ex parte proceedings to get rid of members of a church society, void; Hatfield 
 v. De Long, 156 Ind. 211, 51 L. R. A. 753, 83 Am. St. Rep. 194, 59 N. E. 483, 
 holding courts may enjoin church tribunal from expelling member in violation of 
 laws of the church; Federal L. Ins. Co. v. Risinger, 46 Ind. App. 148, 91 N. E. 
 533, to the point that party cannot be deprived of right without opportunity 
 afforded him to defend or protect such right. 
 
 Cited in notes (15 L. R. A. 801) on civil power to review excommunication of 
 church member; (49 L. R. A. 396) as to conclusiveness of decisions of tribunals 
 of associations or corporations, as to regularity of procedure; (4 L.R.A. (N.S.) 
 1155) on review by civil courts of expulsion of member of religious society; (18 
 Am. St. Rep. 301) on redress against proceedings in lodges, churches, and other 
 voluntary associations; (100 Am. St. Rep. 739) on jurisdiction of civil courts over 
 church controversies. 
 
 7 L. R, A. 327, HENDERSON v. REYNOLDS, 84 Ga. 159, 10 S. E. 734. 
 Coercion of verdict. 
 
 Cited in Auld v. Cathro, 20 N. D. 477, 32 L.R.A. (N.S.) 82, 128 N. W. 1025, 
 to the point that old idea of starving jury, to coerce verdict, has passed away. 
 
 Cited in note (105 Am. St. Rep. 579) on urging or coercing verdict. 
 Validity of verdict on Sunday. 
 
 Cited in Bernstein v. Myers, 99 Ga. 90, 24 S. E. 854, holding that verdict may 
 be made up and returned on Sunday, where jury sent out before; Weaver v. Car- 
 ter, 101 Ga. 207, 28 So. 869, holding court may receive verdict on Sunday; State 
 v. Atkinson, 104 La. 572. 29 So. 279, holding verdict may be returned morning of 
 Thanksgiving day; Rawlins v. State, 124 Ga. 58, 52 S. E. 1, holding verdict in 
 criminal case receivable on Sunday. 
 
 Cited in footnotes to Sullivan v. Maine C. R. Co. 8 L. R. A. 427, which holds 
 riding for exercise on Sunday not violation of statute; Porter v. Pierce, 7 L. R. A. 
 847, which excludes Sunday in determining time to redeem. 
 Standard of time. 
 
 Cited in Ex parte Parker, 35 Tex. Crim. Rep. 15, 29 S. W. 480, holding sun 
 time the standard of time for courts; Jones v. Gterman Ins. Co. 110 Iowa, 78, 46 
 L. R. A. 861, 81 N. W. 188, holding sun time determines hour of expiration of 
 insurance; Texas Tram & Lumber Co. v. Hightower, 100 Tex. 130, 6 L.R.A. 
 
1299 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 330 
 
 (N.S.) 1048, 123 Am. St. Rep. 794, 96 S. W. 1071, holding solar time and not 
 standard or railroad time, should be used by courts in their affairs though the 
 community has generally adopted standard time; Salt Lake City v. Robinson, 
 - Utah, , 35 L.R.A. (N.S.) 615, 116 Pac. 442, holding that hour for closing 
 saloons under municipal ordinance must be determined by standard, not solar, 
 time. 
 
 Cited in notes (78 Am. St. Rep. 386) on computation of time; (1 L.R.A. (X.S.) 
 365) on intention of parties to contract to adopt standard instead of sun time. 
 
 Distinguished in Globe & R. F. Ins. Co. v. David Moffat Co. 83 C. C. A. 91, 
 154 Fed. 20, holding it matter of fact what time standard was to be taken on a 
 foreign policy of insurance; Orvik v. Casselman, 15 N. D. 37, 105 N. W. 1105, 
 holding "standard" or "railroad" the system in use in North Dakota and judicially 
 known. 
 
 7 L. R. A. 330, STATE ex rel. WEISS v. DISTRICT BOARD, 76 Wis. 177, 20 Am. 
 
 St. Rep. 41, 44 N. W. 967. 
 Judicial notice. 
 
 Cited in North Hempstead v. Gregory, 53 App. Div. 354, 65 N. Y. Supp. 867, 
 holding court will take judicial notice of contents of Bible.; Pfeiffer v. Board of 
 Education, 118 Mich. 560, 42 L. R. A. 541, 77 N. W. 250, holding courts will ju- 
 dicially notice custom of opening schools with selections from Bible and other de- 
 votional exercises; Hilton v. Roylance, 25 Utah, 144, 58 L. R, A. 729, 95 Am. St. 
 Rep. 821, 69 Pac. 660, holding court will take judicial notice of meaning of 
 "sealed" and "sealing ordinance" as used in Mormon church. 
 Sectarian instruction. 
 
 Cited in Hysong v. School District, 164 Pa. 642, 26 L. R. A. 206, 44 Am. St. 
 Rep. 632, 30 Atl. 482, to point that the principles of Christian morality are not 
 excluded from public schools but only sectarian instruction ; Stevenson v. Hanyon, 
 9 Kulp, 266, 4 Lack. Legal News, 226, 7 Pa. Dist. R. 591, holding reading of Bible 
 in public schools not sectarian instruction, and not unconstitutional ; State ex 
 rel. Jones v. Froehlich, 115 Wis. 42, 58 L. R. A. 764, 95 Am. St. Rep. 894, 91 N. 
 W. 115, holding value of laws will not justify their enactment in violation of 
 constitutional provisions. 
 
 Cited in footnote to Billard v. Topeka Board of Education, 66 L.R.A. 166, which 
 holds public school teacher not conducting form of religious worship or teaching 
 sectarian or religious doctrine by repeating Lord's Prayer and Twenty-Third 
 Psalm as morning exercise without comment or remark in which none of pupils 
 are required to participate. 
 
 Cited in notes (14 L.R.A. 419) on public aid to sectarian institution; (105 
 Am. St. Rep. 154, 157; (16 L.R.A. (N.S.) 862) on religious exercises or instruc- 
 tion in public schools. 
 
 Distinguished in North v. University of Illinois, 137 111. 307, 27 N. E. 54, hold- 
 ing rule requiring students of university to attend chapel unless excused not un- 
 constitutional or unreasonable. 
 Reading; Bible in school. 
 
 Cited in State ex rel. Freeman v. Scheve, 65 Neb. 871, 59 L. R. A. 930, footnote 
 p. 927, 91 N. W. 846, holding Bible reading, hymn singing, and prayer in public 
 schools forbidden by Constitution; People ex rel. Ring v. Board of Education, 
 245 111. 350, 29 L.R.A. (N.S.) 448, 92 N. E. 251, holding the reading of the Bible 
 in the public schools constitutes the giving of sectarian instruction within the 
 meaning of the Constitution. 
 
7 L.R.A. 330] L. R. A. CASES AS AUTHORITIES. 1300 
 
 Cited in footnote to Hackett v. Brooksville School District, 69 L.R.A. 592, 
 which sustains right to read King James version of Bible in schools. 
 
 Cited in note (36 L. R. A. 278) on adoption of text-books for public schools. 
 
 Disapproved in Pfeiffer v. Board of Education, 118 Mich. 569, 42 L. R. A. 539, 
 77 N. W. 250, holding reading extracts from Bible without comment, in public 
 schools, constitutional; Hackett v. Brookville Graded School Dist. 120 Ky. 626, 
 69 L.R.A. 597, 117 Am. St. Rep. 599, 87 S. W. 792, 9 A. & E. Ann. Cas. 36, holding 
 the King James translation of the Bible, not within meaning of statute forbidding 
 sectarian instruction in schools. 
 Practical construction of statute. 
 
 Cited in Travelers' Ins. Co. v. Fricke, 94 Wis. 266, 68 N. W. 958, holding there 
 is no room for practical construction unless statute is doubtful; State ex rel. 
 Lamb v. Cunningham, '83 Wis. 142, 17 L. R. A. 168, 35 Am. St. Rep. 27, 53 N. W. 
 35, holding former acts immaterial in construing constitutionality of later stat- 
 ute unless language of Constitution is doubtful and a long-continued legislative 
 construction has been given to it; State v. Chicago & N. W. R. Co. 128 Wis. 
 519, 108 N. W. 594, holding where the literal sense of a statute, if adopted as the 
 legislative meaning would lead to some absurd result, or shock the ordinary 
 sense of justice, it is to be rejected if some other meaning which is reasonable 
 can be readily read therefrom by aid of any rule of judicial construction; 
 Kingsley v. Merrill, 122 Wis. 192, 67 L.R.A. 203, 99 N. W. 1044, 2 A. & E. Ann. 
 Cas. 748, holding long and uniform sanction by law revisers and law makers as 
 to construction of constitution entitled to no weight if statutes in question are 
 in conflict with plain meaning of constitution. 
 Qualification of witness. 
 
 Cited in note (42 L. R. A. 566) on religious belief as qualification of witness. 
 Pleading-. 
 
 Cited in Elmergreen v. Weimer, 138 Wis. 117, 119 N. W. 836, holding conclu- 
 sions of law in pleadings and not admitted by demurrer. 
 
 7 L. R. A. 344, VIRGINIA MIDLAND R. CO. v. WASHINGTON, 86 Va. 629, 10 
 
 S. E. 927. 
 Liability of lessor or lessee of railroad for other's negligence. 
 
 Cited in Murray v. Lehigh Valley R. Co. 66 Conn. 520, 32 L. R. A. 540, 34 Atl. 
 506, holding railroad operating train on leased track subject to orders of latter's 
 servants, liable for their negligence; Arrowsmith v. Nashville & D. R. Co. 57 Fed. 
 179, holding authorized lessor railroad company not liable for injury to mail clerk 
 from crane erected under lessee's permission ; Buckner v. Richmond & D. R. Co. 
 72 Miss. 880, 18 So. 449, holding authorized lessor railroad company not liable 
 for injury from defective appliance leased; Hurlbut v. Wabash R. Co. 130 Mo. 
 665, 31 S. W. 1051, holding railway hiring employees and furnishing engines used 
 on connecting lines, liable to employee for injury while on other line due to defect 
 in engine; McCabe v. Maysville & B. S. R. Co. 112 Ky. 875, 66 S. W. 1054, holding 
 lessor railroad liable for negligence of lessee in killing pedestrian ; Chicago & G. 
 T. R, Co. v. Hart, 209 111. 425, 66 L. R. A. 81, 70 N. E. 654 (dissenting opinion), 
 majority holding lessor road liable for negligent injury by lessee of employee of 
 latter; Muntz v. Algiers & G. R. Co. Ill La. 427, 64 L. R, A. 225, 35 So. 624, 
 holding lessor road liable for injury due to negligence of lessee; Empire Trust 
 Co. v. Egypt R. Co. 182 Fed. 108, to the point that lessor of railroad is not 
 liable for injury to servant of lessee in operating road; Swice v. Maysville & 
 B. S. R. Co. 116 Ky. 256, 75 S. W. 278, on liability of lessee of railroad to serv- 
 
1301 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 352 
 
 ants; Moorshead v. United R. Co. 119 Mo. App. 633, 96 S. W. 261 (dissenting 
 opinion), as to liability of lessor company for negligence of lessee company. 
 
 Cited in footnote to Harden v. North Carolina R. Co. 55 L. R. A. 784, which 
 denies power of lessor of railroad to exempt itself from liability to employees of 
 lessee. 
 
 Cited in notes (37 L. R, A. 83) as to which of two or more persons is the mas- 
 ter of another who is conceded to be the servant of one of them; (44 L. R, A. 
 745) as to liability of lessor of railroad for injuries caused by negligence of an- 
 other company using the road under a lease, license, or other contract. 
 Lease of property as avoiding; public duty. 
 
 Cited in Ryerson v. Morris Canal & Bkg. Co. 71 X. J. L. 384, 59 Atl. 29, 2 A. 
 
 6 E. Ann. Cas. 859, holding where a public duty is imposed upon a corporation 
 by its charter, it cannot relieve itself of that duty by leasing its property and 
 franchises under a general legislative authority to lease. 
 
 Cited in note (66 L.R.A. 142) on escape from duties by lease of railroad. 
 
 7 L. R. A. 348, PEOPLE ex rel. MORGAN v. HAYNE, 83 Cal. Ill, 17 Am. St. 
 
 Rep. 217, 23 Pac. 1. 
 
 Cited in Butler v. Gage, 138 U. S. 60, 34 L. ed, 872, 11 Sup. Ct. Rep. 235, 
 in stating a question presented as a jurisdictional federal question. 
 Encroachment upon judicial powers. 
 
 Cited in State v. Le Clair, 86 Me. 532, 30 Atl. 7, holding act investing clerk of 
 municipal court with authority to hear complaints and issue warrants no en- 
 croachment upon judicial power; De Votie v. McGerr, 14 Colo. 581, 23 Pac. 980, 
 raising without passing upon question of constitutionality of act providing for 
 supreme court commission; Huneke v. Huneke, 12 Cal. App. 205, 107 Pac. 131, 
 holding order of court providing in terms that the report of referees should 
 have no efficacy until acted upon by court, did not vest judicial power in 
 referees; Kaiser Land & Fruit Co. v. Curry, 155 Cal. 657, 103 Pac. 341, holding 
 statute making it the duty of the secretary of state to report to governor the list 
 of corporations delinquent in payment of taxes is not unconstitutional on ground 
 that secretary of state is given authority to determine what corporations are ex- 
 exempt under statute, such determination of secretary not being binding upon 
 any corporation. 
 
 Cited in footnote to Herndon v. Imperial Fire Ins. Co. 18 L. R. A. 547, which 
 denies legislative power to give right to rehearing contrary to court rule. 
 Construction of statutes. 
 
 Cited in Tucker v. Barnum, 144 Cal. 271, 77 Pac. 919 (dissenting opinion) as 
 to construction which renders statute constitutional being favored; Re Spenser, 
 149 Cal. 402, 117 Am. St. Rep. 137, 86 Pac. 896, 9 A. & E. Ann. Cas. 1105; 
 Re Finley, 1 Cal. App. 200, 81 Pac. 1041, holding every doubt must be resolved 
 in favor of validity of statute; Brookings County v. Murphy, 23 S. D. 322, 121 
 N. W. 793, holding that it is duty of court to adopt that construction which will 
 give effect to statute when conflict between it and constitution is not clear. 
 
 7 L. R. A. 352, CITIZENS STREET R. CO. v. TWINAME, 121 Ind. 375, 23 N. 
 
 E. 159. 
 Action to recover for loss of services. 
 
 Cited in Hensley v. Tuttle, 17 Ind. App. 255, 46 N. E. 594, holding husband 
 entitled to recover for joint services of himself and wife in nursing and caring for 
 decedent; Bloomington v. Rogers. 13 Ind. App. 124, 4] N. E. 395, holding married 
 woman not supported by husband and doing business on own account can recover 
 
7 L.R.A. 352] L. R. A. CASES AS AUTHORITIES. 1302 
 
 value of own services; Tipton County v. Brown, 4 Ind. App. 292, 30 N. E. 925, 
 holding husband entitled to wife's services in household work; Louisville, N. A. 
 
 6 C. R. Co. v. Rush, 127 Ind. 548, 26 X. E. 1010, holding condition of one's family 
 may be considered in estimating father's damages for loss of child's services; 
 Kirkpatrick v. Metropolitan Street R. Co. 129 Mo. App. 533, 107 S. W. 1025 
 (dissenting opinion); Kennedy v. Swisher, 34 Ind. App. 679, 73 N. E. 724, 
 as to right of husband to recover for loss of services of wife in his business; 
 Georgia R. A Bkg. Co. v. Tice, 124 Ga. 469, 52 S. E. 916, 4 A. & E. Ann. Cas. 
 200; Standen v. Pennsylvania R. Co. 214 Pa. 200, 63 Atl. 467, 6 A. & E. Ann. 
 Cas. 408, holding husband may recover for loss of wife's services to him in his 
 business given voluntarily; Libaire v. Minneapolis & St. L. R. Co. 113 Minn. 523, 
 130 N. W. 8, holding that married woman may recover in her own name for 
 injuries to her person, including damages for loss of earning capacity as singer. 
 
 Cited in footnote to Harmon v. Old Colony R. Co. 30 L. R, A. 658, which holds 
 impairment of capacity to labor element of damages for injury to married w r oman. 
 
 Cited in notes (28 Am. St. Rep. 80) on measure of damages for injury to wife: 
 (33 L.R.A. (N.S.) 1043) on right to recover for loss of consortium through per- 
 sonal injury to wife. 
 Liability of husband for tort of wife. 
 
 Cited in Radke v. Schlundt, 30 Ind. App. 222, 65 N. E. 770, holding husband 
 not liable for injury caused by negligence of wife while selling or delivering prod- 
 uce raised on his farm. 
 
 7 L. R. A. 354, RICKETTS v. CHESAPEAKE & 0. R. CO. 33 Wa. Va. 433, 25 
 
 Am. St. Rep. 901, 10 "S. E. 801. 
 Lease of railroad. 
 
 Cited in Fisher v. West Virginia & P. R. Co. 39 W. Va. 370, 23 L. R, A. 759, 19 
 S. E. 578, holding railroad cannot turn over its road to another company and 
 by lease or contract exempt itself from responsibility for management of road. 
 
 Cited in footnote to Van Steuben v. Central R. Co. 34 L. R. A. 577, which holds 
 unauthorized lease of railroad, void. 
 
 Cited in notes (44 L. R. A. 742) as to company's authority to lease railroad: 
 (52 L. R, A. 371) necessity of legislative permission to consolidate. 
 Liability of lessor and lessee of railroad. 
 
 Cited in Moundsville v. Ohio River R. Co. 37 W. Va. 99, 20 L. R. A. 167, 16 S. 
 E. 514, to point that railroad company's duty to restore streets which it 
 crosses rests on successor by lease, assignment, or consolidation; Chesapeake & 0. 
 R. Co. v. Howard, 14 App. D. C. 284, holding lessee liable for injury on leased 
 road though lease was ultra vires; Hollins v. New Orleans & N. W. R. Co. 119 
 La. 422, 44 So. 159, holding both liable where one operated train on other's 
 track. 
 
 Cited in notea (37 L. R. A. 85) as to liability of lessor of railroad while lessee 
 is in possession; (44 L. R. A. 739, 740) as to liability of lessor of railroad for 
 negligence of lessee; (66 L.R.A. 144) on effect of lease on liability of railroad: 
 (58 Am. St. Rep. 148) on liability of lessor of railroad to third persons. 
 
 Distinguished in Arrowsmith v. Nashville & D. R. Co. 57 Fed. 173, holding au- 
 thorized lease without exemption clause absolves lessor from torts of lessee result- 
 ing from negligent operation of road. 
 Reading- from reported cases to jnry. 
 
 Cited in State v. Wait. 44 Kan. 323. 24 Pac. 354, holding reading to jury from 
 opinion of Supreme Court in another case, not permissible: Le Comte v. Fresh- 
 
]303 L. R. A. GASES AS AUTHORITIES. [7 L.R.A. 354 
 
 water, 57 W. Va. 339, 49 S. E. 238, condemning the reading of reports to the 
 jury as a dangerous practice. 
 
 Distinguished in Gregory v. Ohio River R, Co. 37 W. Va. 623, 16 S. E. 819, 
 holding counsel may read from reportd cases if law read is correct and relevant. 
 Exemplary or punitive damages. 
 
 Cited in Mayer v. Frobe, 40 W. Va. 262, 22 S. E. 58, holding exemplary dam- 
 ages may be assessed upon wrongdoer by way of punishment in civil suit; Turner 
 v. Norfolk & W. R, Co. 40 W. Va. 688, 22 S. E. 83, holding exemplary damages 
 recoverable within statutory limit against railroad company for death of employee 
 due to its negligence; Gillingham v. Ohio River R. Co. 35 W. Va. 604, 14 L. R, 
 A. 804, 29 Am. St. Rep. 827, 14 S. E. 243, holding one falsely imprisoned by 
 railway conductor may recover exemplary damages restricted to what would be 
 a fair and just compensation ; Talbott v. West Virginia C. & P. R. Co. 42 W. Va. 
 563, 26 S. E. 311, to point that exemplary damages not recoverable against rail- 
 road company for wanton and malicious act of servant unless expressly or im- 
 pliedly authorized or ratified; Donivan v. Manhattan R. Co. 1 Misc. 371, 21 N. 
 Y. Supp. 457, holding punitive damages not recoverable for wilful injury by serv- 
 ant unless master authorizes or ratifies the act; Claiborne v. Chesapeake & O. R. 
 Co. 46 W. Va. 366, 33 S. E. 262, holding master not liable in punitive damages 
 for injury due to malicious act of servant unless he authorized or ratified it; 
 Couch v. Chesapeake & O. R. Co. 45 W. Va. 56, 30 S. E. 147 (divided court), to 
 proposition that doctrine as to punitive damages is same whether death ensues aa 
 result of the negligent act or not ; Turner v. Norfolk & W. R. Co. 40 W. Va. 693, 
 22 S. E. 83, as to circumstances 'under which corporations are liable to infliction 
 of punitive damages; Scott v. Chesapeake & O. R, Co. 43 W. Va. 490, 27 S. E. 211 
 (dissenting opinion), majority holding that punitive damages can be awarded 
 against a corporation; Davis v. Chesapeake & 0. R. Co. 61 W. Va. 253, 9 L.R.A. 
 (N.S.) 997, 56 S. E. 400, holding where a railroad company is liable for the act 
 of its train conductor in unlawfully arresting and imprisoning a person on the 
 train and such act is malicious, wanton, wilful or reckless the company is lia- 
 ble for exemplary damages; Thomas v. Wheeling Electrical Co. 54 W. Va. 404, 
 46 S. E. 217, as to liability of corporation for exemplary damages; Teel v. Coal & 
 Coke Co. 66 W. Va. 316, 66 S. E. 470, to the point that exemplary damages can- 
 not be given against railroad on account of injury caused by servant. 
 
 Cited in notes (4 L.R.A. (N.S.) 507) on punitive damages for malicious act of 
 servant when master owes special duty to party injured; (59 Am. St. Rep. 603) 
 on exemplary damages against corporations; (37 L. ed. U. S. 98) on liability of 
 railroad or other corporation for punitive or exemplary damages; (28 Am. St. 
 Rep. 876; 8 Eng. Rul. Cas. 381) on right to punitive damages. 
 Liability of carrier for assault by employee. 
 
 Cited in Layne v. Chesapeake & 0. R. Co. 66 W. Va. 618, 67 S. E. 1103, holding 
 that carrier of passengers is under contractual duty to protect them from wilful 
 and unlawful injury by servants. 
 
 Cited in notes (14 L.R.A. 738) on liability of carrier for assault on passenger 
 by employee during transportation; (25 Eng. Rul. Cas. 142) on liability of rail- 
 road for assault by employee in ejecting passenger; (40 L.R.A. (N.S. ) 1045, 
 1053) on liability of carrier for wilful torts of servants to passengers. 
 Mental suffering: us element of damagea. 
 
 Cited in Duckworth v. Stalnaker, 68 W. Va. 206, 69 S. E. 850, holding that 
 mental suffering may be considered by jury in augmentation of damages where 
 actual damages are shown in action under Civil Damage Act. 
 
7 L.R.A. 357] L. R. A. CASES AS AUTHORITIES. 1304 
 
 7 L. R. A. 357, DETWILLER v. COM. 131 Pa. 614, 18 Atl. 990, 992. 
 Eligibility of directors or stockholders. 
 
 Cited in Com. ex rel. Lauffer v. Stevenson, 200 Pa. 510, 50 Atl. 91, to point that 
 president of board of directors cannot decide as to eligibility of directors and 
 fill vacancy thus created. 
 
 Cited in notes (24 L. R. A. 252) on right of nonresidents to become stock- 
 holders; (46 L. R. A. 620) on charter restrictions on eligibility to become share- 
 holder; (23 L.R.A. (N.S.) 1294) on power of directors to remove appointee who is 
 one of the class of officers to whom management is confided. 
 Voting by proxy. 
 
 Cited in Walker v. Johnson, 17 App. D. C. 163, holding trading corporation has 
 implied power to enact by-law conferring right to vote by proxy; McKee v. Home 
 Sav. & T. Co. 122 Iowa, 736, 98 N. W. 609, holding voting on question of liquida- 
 tion not authorized by general proxy; Worth Mfg. Co. v. Bingham, 54 C. C. A. 
 125, 116 Fed. 791, holding voting by proxy under provision of charter, legal. 
 
 Cited in note (29 L. R. A. 845) on right to vote by proxy in private corpora- 
 tions. 
 Aliens' rights. 
 
 Cited in Cooke v. Doron, 215 Pa. 398, 7 L.R.A. (N.S.) 662, 64 Atl. 595, 7 A. & 
 E. Ann. Gas. 502, holding an alien husband entitled as tenant by curtesy under 
 statute entitling him to inherit or succeed to estates. 
 
 7 L. R. A. 360, COM. ex rel. ROBINSON v. HEMINGWAY, 131 Pa. 636, 18 Atl. 
 
 990, 992. 
 Ownership of stock by foreign corporation. 
 
 Cited in Shepp v. Schuylkill Valley Traction Co. 17 Montg. Co. L. Rep. 60, hold- 
 ing foreign corporation which owns and votes upon stock of Pennsylvania corpo- 
 ration does not thereby assume possession and control of the latter. 
 Alien widow's right to dower. 
 
 Cited in Ondis v. Banta, 7 Kulp, 391, holding alien widow entitled to dower in 
 lands of alien husband. 
 
 7 L. R. A. 361, Re CHAUNCEY, 119 N. Y. 77, 23 N. E. 448. 
 Abatement of legacy. 
 
 Cited in Re Hinman, 32 Misc. 538, 67 N. Y. Supp. 459, holding legacy for the 
 support of a brother during life abates with other general legacies. 
 Making up deficiency from surplus. 
 
 Cited in Spencer v. Spencer, 38 App. Div. 410, 56 N. Y. Supp. 460, holding 
 deficiency in any year of amount of income provided by will should be made good 
 out of surplus of succeeding years; Marfield v. McCurdy, 25 App. D. C. 353, 
 holding alien a will provides that out of the income generally of the estate the 
 executor shall receive compensation at the rate of so much a year in lieu of com- 
 missions, if the income is less in one year and greater in another the deficiency 
 of compensation in one year may be made up by the excesses in other years. 
 
 Distinguished in Comstock v. Comstock, 78 Conn. 613, 63 Atl. 449, holding 
 where annuities are directed to be paid out of annual or semi annual income and 
 annuity was not charged on net income of trust fund generally a deficiency for 
 one year could not be made up out on an income of another year. 
 
 7 L. R. A. 363, STREISSGUTH v. NATIONAL GERMAN- AMERICAN BANK, 
 
 43 Minn. 50, 19 Am. St. Rep. 213, 44 N. W. 797. 
 Liability for default of audit. 
 
 Cited in Ft. Dearborn Nat. Bank v. Security Bank, 87 Minn. 84, 91 N. W. 257, 
 
1305 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 367 
 
 holding bank which transmits check to another for collection makes latter bank 
 its agent and is liable for its neglect; Bailie v. Augusta Sav. Bank, 95 Ga. 282, 
 51 Am. St. Rep. 74, 21 S. E. 717, holding bank liable for negligent failure of its 
 correspondent to collect; Commercial Bank v. Red River Valley Nat. Bank, 8 N. D. 
 387, 79 N. W. 859, holding under Dak. Code subagent bank not responsible to 
 principal for negligent failure to collect but that agent may sue ; Johnson v. Dun, 
 75 Minn. 538, 78 N. W. 98, holding mercantile agency accepting notes for collec- 
 tion without limitation as to liability, responsible for wrongful acts of its attor- 
 ney; Irwin v. Reeves Pulley Co. 20 Ind. App. 128, 48 N. E. 601 (dissenting opin- 
 ion) to point correspondent bank agent of home bank, majority holding latter 
 liable only if negligent in selecting correspondent: Brown v. People's Bank, 59 
 Fla. 165, L.R.A.(N.S.) , 52 So. 719, holding that bank in which check is 
 deposited for collection is liable for amount where bank to which it sends check 
 for collection fails to remit after check is paid. 
 
 Cited in footnotes to Wilson v. Carlinville Nat. Bank, 52 L. R. A. 632, which 
 holds depositor of check for collection estopped to object sending check directly 
 to drawee bank in accordance with custom known to him; Second Nat. Bank v. 
 Merchants' Nat. Bank, 55 L. R. A. 273, which holds bank negligent in sending 
 note for collection to bank whose cashier is treasurer of corporation maker with- 
 out hearing from similar note previously sent. 
 
 Cited in notes (38 Am. St. Rep. 777) on care required of bankers acting as 
 agents or bailees; (37 L. ed. U. S. 364) on liability of bank for collections. 
 
 7 L. R. A. 365, LEAVITT v. GOODWIN, 79 Iowa, 348, 44 N. W. 567. 
 Provision maturing: debt on default. 
 
 Cited in Horn v. Bennett, 135 Ind. 163, 24 L. R. A. 804, 34 N. E. 321, holding 
 priority of notes given to secure mortgage not changed where all the notes become 
 due in consequence of mortgagor's default; Watts v. Creighton, 85 Iowa, 160, 52 
 N. W. 12, holding mortgagee's option to declare entire debt due on default may 
 be waived so that such default will not set statute of limitations in operation; 
 Green v. Frick, 25 S. D. 348, 126 K W. 579. to the point that provision in note to 
 effect that in case of default in payment of interest, whole amount of principal 
 will become due, is in nature of forfeiture which party is not bound to enforce. 
 
 Questioned in San Antonio Real Estate Bldg. & Loan Asso. v. Stewart, 94 Tex. 
 446, 86 Am. St. Rep. 864, 61 S. W. 386, on proposition that provision maturing 
 entire debt on default is a penalty or forfeiture. 
 Priority of notes. 
 
 Cited in note (2-1 L. R. A. 802) on priority of notes as regulated by maturity, 
 
 7 L. R. A. 367, Re WOODWARD, 117 N. Y. 522, 23 N. E. 120. 
 Construction of Trord "nephew." 
 
 Cited in Nicholson v. Nicholson, 115 Iowa, 495, 91 Am. St. Rep. 175, 88 N. W. 
 1064, and Willard v. Darrah, 168 Mo. 672, 90 Am. St. Rep. 468, 68 S. W. 1023, 
 holding word "nephew" does not include grand nephews: Leask v. Richards, 116 
 App. Div. 281, 101 N. Y. Supp. 652, holding while ordinarily the words "nephew' r 
 and "niece" will be taken in their primary sense as indicating children of a 
 brother or sister, yet when the intention of the testator is evident, the words 
 may be expanded to mean grandnepliews and grandnieces: Mobley v. Mohley, 85- 
 S. C. 322, 67 S. E. 556, to the point that children of nephew or niece cannot be 
 held to mean children of grandnephew or grandniece. 
 
 Cited in note (9 L. R. A. 200) on legacy to nephews and nieces. 
 Construction of trill. 
 
 Cited in notes (8 L.R.A. 742) on rule of construing wills; (14 Eng. RuL 
 Cas. 655) on same point. 
 
7 L.R.A. 367] L. R. A. CASES AS AUTHORITIES. 1306 
 
 Vesting of legacy. 
 
 Cited in footnote to Wengerd's Appeal, 13 L. R. A. 360, which holds legacies 
 vest at testator's death under will converting estate into money and directing dis- 
 tribution between children of son. 
 
 7 L. R. A. 369. MILLVALE v. EVERGRKEX R. CO. 131 Pa, 1, 18 Atl. 993. 
 Sufficiency of title of statute. 
 
 Cited in Com. v. Moore. 2 Pa. Super. Ct. 166, and Com v. Curry, 4 Pa. Super. 
 Ct. 360, holding title sufficient which fairly gives notice of subject of act so as 
 to lead to inquiry into body of bill; Luzerne Water Co. v. Toby's Creek Water 
 Co. 6 Kulp, 239, holding title of supplemental act sufficient which indicates an 
 amendment of original followed by specification of changes, where latter not ap- 
 parently explanatory of former; Lehigh Valley Coal Co. v. United States Pipe 
 Line Co. 3 Pa. Dist. R. 72. 7 Kulp, 79, holding title to act of June 2. 1883. suffi- 
 ciently indicates its purpose to provide for taking of lands for transportation of 
 petroleum; Com. v. Darmska. 16 Pa. Dist. R. 893: Allentown v. Wagner. 27 Pa. 
 Super. Ct. 492, holding title sufficient which fairly gives notice of object of 
 act so as to lead to inquiry into body of bill. 
 
 Cited in notes (64 Am. St. Rep. 80) on sufficiency of title of statute; (86 Am. 
 St. Rep. 274) on necessity of title disclosing details. 
 Title of supplemental act. 
 
 Cited in Forty Fort v. Forty Fort Water Co. 9 Kulp. 251; Com. v. Edgerton 
 Coal Co. 164 Pa, 305, 30 Atl. 129: Philadelphia v. Ridge Ave. R. Co. 142 Pa. 401. 
 24 Am. St. Rep. 512, 21 Atl. 9S2 holding .supplemental act germane to original 
 covered by title referring to original act: Washington v. MeGeorge, 146 Pa. 2.~>4. 
 23 W. N. C. 252, 23 Atl. 222. holding supplemental act constitutional where its 
 provisions are germane to subject expressed in title: Luzerne Water Co. v. Toby 
 Creek Water Co. 148 Pa. 571. 24 Atl. 117, holding title of supplementary act suf- 
 ficient if germane to subject of original act; Com. ex rel. Smathers v. Taylor. 
 159 Pa. 457. 34 W. X. C. 33. 28 Atl. 348, to point that supplemental act may con- 
 tain anything germane to original act: Wilson v. Downing. 4 Pa. Super. Ct. 492. 
 holding title to supplemental act sufficient where its subject-matter is within 
 title and also germane to subject of original act: Allentown v. Wagner. 214 Pa. 
 212. 63 Atl. 697: Com. ex rel. Cummings v. Atty. Gen. 30 Pa. Co. Ct. 58, 13 Pa. 
 Dist. R. 525: Com. v. Leibrich, 33 Pa. Co. Ct. 290. 16 Pa. Dist. R. 469: Weeks 
 v. Franklin, 13 Pa. Dist. R. 286. holding same; Com. ex rel. Kruder v. Light. 35 
 Pa. Super. Ct. 370, holding where prior legislation imposes upon counties a duty 
 or burden, a subsequent act upon the same subject need not expressly state in its 
 title that burden of paying for same shall be borne by county. 
 Construction of terms railroad" and railway." 
 
 Cited in Massachusetts Loan & T. Co. v. Hamilton. 32 C. C. A. 50, 59 U. S. App. 
 403, 88 Fed. 592; Rafferty v. Central Traction Co. 147 Pa. 589, 29 W. N. C. 542, 
 30 Am. St. Rep. 763, 23 Atl. SS4. reversing 22 Pittsb. L. J. X. S. 19: Old Colony 
 Trust Co. v. Allentown & B. Rapid Transit Co. 192 Pa. 603. 44 Atl. 319, holding 
 the words "railroad" and "railw-iy'' synonymous: Pennsylvania R. Co. v. Inland 
 Traction Co. 25 Pa. Super. Ct. 123. as to construction of the terms. 
 Street railroads. 
 
 Cited in Cheetham v. McCormick. 178 Pa. 191. 35 Atl. 631. holding street rail- 
 roads are within term "railroad corporations" as used in statute; Sams v. St. 
 Louis & M. River R. Co. 174 Mo. 89 ? 61 L. R. A. 485, 73 S. W. 686. and Com. v. 
 McCaully, 2 Pa. Dist. R. 63. holding word "railroad" includes street railroads: 
 Banimel v. Kirby, 19 Tex. Civ. App. 200. 47 S. \\ . 392. holding statutory term 
 "any railroad" includes street railroads: Pennsylvania R. Co. v. Inland Traction 
 
1307 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 374 
 
 Co. 18 Montg. Co. L. Rep. 137, holding consolidating street railways under act of 
 May 16, 1861, lawful. 
 
 Cited in note (52 L. R. A. 380) on right of street railways to consolidate 
 under statute authorizing consolidation of railrcads. 
 Change of gauge or motive power. 
 
 Cited in Western N. Y. & P. R. Co. v. Buffalo, R, & P. R. Co. 193 Pa. 135, 44 
 Atl. 242, as sustaining right of railroad company to widen its gauge; Watkin v. 
 West Philadelphia' Pass. R. Co. 11 Pa. Co. Ct. 653, 31 W. X. C. 271, 1 Pa. Dist. 
 R. 467, holding passenger railway limited by charter to horse power without au- 
 thority to make use of trolley system of electricity; Howley v. Central Valley R. 
 Co. 213 Pa. 42, 2 L.R.A. (X.S.) 142, 62 Atl. 109, 5 A. 4 E. Ann. Cas. 51, holding 
 a railroad company where it is not limited as to power to be used, is required 
 to use that which is best and most convenient for its operation, having due re- 
 gard to safety of public. 
 Right of railway in and municipal control over afreet. 
 
 Cited in New Castle v. Lake Erie & W. R. Co. 155 Ind. 23, 57 N. E. 516, hold- 
 ing city may grant railway the right to lay tracks longitudinally along the 
 street; Re Johnston, 137 Cal. 121, 69 Pac. 973, holding void, ordinance requiring 
 permit from city to lay gas and water pipes in streets ; Northern Coal & I. Co. v. 
 Wilkes-Barre, 13 Luzerne Legal Reg. Rep. 139, holding that railroad may con- 
 struct overhead street crossings without consent of city; Ritter v. Lehigh Coal & 
 Xav. Co. 10 North. Co. Rep. 356, 16 Pa. Dist. R. 716, holding unless there is a 
 limitation in their charter railroads incorporated under act of April 4th 1868 are 
 not compelled to obtain borough consent to construct lines through its territory; 
 Grand Trunk Western R. Co. v. South Bend, 174 Ind. 218, 36 L.R.A.(X.S.) 856, 
 89 X. E. 885, holding that legislature may grant railroad right to lay tracks in 
 city street without consent of city. 
 
 Cited in footnote to Chicago G. W. R. Co. v. First M. E. Church, 50 L. R. A. 
 488, which holds water tank in street and station at which bells constantly rung 
 and whistles blown within few rods of church, a nuisance. 
 Implied powera of corporation. 
 
 Cited in Folk v. State Capital Sav. & L. Asso. 214 Pa. 542, 63 Atl. 1013, 
 holding the right granted to prosecute its business carries with it the power to 
 employ all the usual means appropriate for its efficient prosecution. 
 
 7 L. R. A. 374.. ST. LOUIS, I. M. & S. R. CO. v. WORTHEN, 52 Ark. 529, 13 S. 
 
 W. 254. 
 Clacuiincation of property for taxation. 
 
 Cited in Sawyer v. Dooley. 21 Nev. 400. 32 Pac. 437, holding act classifying 
 property for taxation, applying to all railroads, general law; Wells, F. & Co.'s 
 Express v. Crawford County, 63 Ark. 589, 37 L. R. A. 375, 40 S. W. 710, holding 
 separate classification for taxation of express company's property within legis- 
 lative power ; St. Louis & S. F. R. Co. v. Williams, 53 Ark. 64, 13 S. W. 796, hold- 
 ing bridge, the use of which only has been acquired by railway, not taxable by 
 state board; State ex rel. Morton v. Back, 72 Xeb. 424, 69 L.R.A. 459, 100 X. 
 W. 952, holding in the assessment of railway roadbed for taxation it is com- 
 petent for the legislature to classify such property, and provide for the assess- 
 ment of the same as personalty, and to fix the situs of the property assessed by 
 providing for the valuation of the property as an entirety, and the distribution 
 of the total value to each taxing district according to the number of miles of 
 aiain track located thereon. 
 
 Cited in footnotes to State T. Virginia & T. R. Co. 35 L. R. A. 759, which holds 
 
7 L.R.A. 374] L. R. A. CASES AS AUTHORITIES. 1308 
 
 earning capacity of railroad main consideration in determining taxable value ; 
 Knoxville & O. R. Co. v. Harris, 53 L. R. A. 921, which holds exemption from 
 privilege tax not included in exemption from ad valorem tax. 
 
 Cited in notes (14 L. R. A. 585) on constitutional equality of privileges, im- 
 munities, and protection; (60 L. R. A. 340, 374), on constitutional equality in 
 the United States in relation to corporate taxation; (25 Am. St. Rep. 887) on 
 14th amendment as to special privileges, burdens and restrictions. 
 Notice of taxation. 
 
 Cited in State ex rel. Jennings Bros. Invest. Co. v. Armstrong, 19 Utah, 127, 
 56 Pae. 107*5, holding notice need not be given by county board of equalization in 
 raising or lowering taxation on entire class of property in district; Carroll v. 
 Alsup, 107 Tenn. 278, 64 S. W. 193, holding only notice required for increase of 
 taxation by state board afforded by statute fixing date of biennial session; State 
 ex rel. Harrison County Bank v. Springer, 134 Mo. 226, 35 S. W. 589, holding 
 notice not required when statute fixes date when parties may show cause against 
 increase of assessment; State ex rel. Rice v. Harrison, 226 Mo. 173, 125 S. W. 
 1115, holding assessment of property for taxation without notice not in violation 
 of article of federal constitution providing that no person shall be deprived of 
 property without due process of law; St. Louis S. W. R. Co. v. Grayson, 72 Ark. 
 125, 78 S. W. 777, holding provision of federal constitution prohibiting person to 
 be deprived of property without due process of law is not violated by statute 
 establishing a drainage district, which does not provide a day in court for party 
 interested. 
 Practice. 
 
 Cited in footnotes to McClain v. Williams, 43 L. R. A. 287, which holds right 
 of appeal subject to legislative restriction; Johnson v. State, 51 L. R. A. 272, 
 which sustains provision against reversal for error in charge not excepted to. 
 
 7 L. R. A. 377, BENNETT v. CHAPIN, 77 Mich. 526, 43 N. W. 893. 
 Property obtained under Trill. 
 
 Cited in Webb v. Hayden, 166 Mo. 49, 65 S. W. 760, holding possession of 
 executor assuming to act as trustee cannot be disturbed by one without title; 
 Green v. Russell, 103 Mich. 642, 61 N. W. 885, holding purchaser justified in re- 
 fusing title to property purchased from administrator with will annexed unless 
 order of court obtained; Parkhurst v. Trumbull, 130 Mich. 412, 90 N. W. 25, 
 holding executor not authorized to mortgage property under power of sale. 
 
 Cited in note (80 Am. St. Rep. 107) on powers of sale in wills, and who may 
 execute them. 
 Validity of restraints on alienation. 
 
 Cited in Manierre v. Welling, 32 R. I. Ill, 78 Atl. 507, Ann. Cas. 1912C, 1311, 
 holding that fact that restriction on alienation is limited in duration does not of 
 itself make restraint valid, if it is otherwise unreasonable. 
 
 Cited in note (3 L.R.A. (N.S.) 670, 677) on validity of restraint on alienation 
 during limited time. 
 
 7 L. R. A. 381, METROPOLITAN EXHIBITION CO. v. EWING, 42 Fed. 198. 
 Enforcement of contracts. 
 
 Cited in Donker & W. Co. v. Vance, 2 111. C. C. 15, holding the rule that in- 
 junction will lie to restrain the breach of a contract for personal services does 
 not apply to contracts between master and servant; General Electric Co. v. West- 
 inghouse Electric Co. 151 Fed. 672, holding cases where courts will enjoin vio- 
 
1309 L. E. A. CASES AS AUTHORITIES. [7 L.R.A. 387 
 
 lation of negative part of contract relate to personal contracts involving special 
 personal attainments and skill. 
 
 Cited in footnote to Philadelphia Ball Club v. Lajoie, 58 L. R. A. 227, which 
 authorizes injunction against base ball player violating contract to play for 
 certain organization, for specified time, and meanwhile not play for other club. 
 
 Cited in notes (7 L. R. A. 780) on unenforceable contracts; (11 L. R. A. 550) 
 on special services for professional labor; (20 L. R. A. 168) on power of equity 
 to grant mandatory injunction; (6 L.R.A. (X.S.) 1117, 1141) on enforcement of 
 contract of service by equity; (68 Am. St. Rep. 754, 762) on specific performance 
 of contract where decree cannot be enforced; (90 Am. St. Rep. 650) on injunction 
 against breach of contract; (6 Eng. Rul. Gas. 665) on refusal to enforce specific 
 performance of contract, the execution of which the court cannot superintend. 
 
 7 L. R. A. 385, CHURCH v. CHURCH, 16 R. I. 667, 19 Atl. 244. 
 Defense to action for divorce. 
 
 Cited in Mathewson v. Mathewson, 18 R. I. 459, 49 Am. St. Rep. 782, 28 Atl. 
 801, holding divorce will not be granted to woman continuing to live with second 
 husband after first husband's return from presumptive death; Day v. Day, 71 
 Kan. 390, 80 Pac. 974, 6 A. & E. Ann. Cas. 169, holding where it is shown that 
 each party to an action had been guilty of a matrimonial offense, which the stat- 
 ute lias made a ground for divorce, they will be deemed to be in "equal wrong," 
 and the court may in its discretion, refuse to grant a divorce, although the offense 
 may not be of the same character; Bordeaux v. Bordeaux, 30 Mont. 43, 75 Pac. 
 524, as to recriminatory matter as a defense; Wilson v. Wilson, 89 Neb. 755, 
 132 X. W. 401, holding that "cruel conduct" if made ground of absolute divorce, 
 may be shown in recrimination of charge of adultery. 
 
 Cited in notes (86 Am. St. Rep. 334, 340) on recrimination as defense in divorce 
 proceeding; (39 L.R.A. (N.S.) 1137) on desertion or cruelty as recriminating 
 defense to subsequent adultery. 
 
 7 L. R. A. 386, BUFFUM v. TIVERTOIST, 16 R. I. 643, 19 Atl. 112. 
 Trust estate passing under general devise. 
 
 Cited in Re Higgins, 15 Mont. 483, 28 L. R. A. 119, 39 Pac. 506, holding that 
 trust estate does not always pass under general devise. 
 Devise to -wife. 
 
 Cited in note (10 L. R. A. 757) on devise to wife for life with power to sell or 
 dispose of estate. 
 Precatory trnsts. 
 
 Cited in note (106 Am. St. Rep. 523) on precatory trusts. 
 
 7 L. R. A. 387, HOPKINS v. MANCHESTER, 16 R. I. 663, 19 Atl. 243. 
 When grift created. 
 
 Cited in Blazo v. Cochrane, 71 N. H. 587, 53 Atl. 1026, holding gift causa 
 mortis not established when donor died subsequently from another cause; Mat- 
 thews v. Hoagland, 48 N. J. Eq. 487, 21 Atl. 1054, holding delivery of certificate 
 of stock without written assignment or power does not constitute gift inter vivos; 
 Allen-West Commission Co. v. Grumble, 63 C. C. A 401, 129 Fed. 291, holding 
 gift of stock in corporation without delivery of certificate invalid; Talbot v. 
 Talbot, 32 R. I. 98. 78 Atl. 535, Ann. Cas. 1912C, 1221, holding that delivery 
 of certificate of stock with written assignment, but without indorsement or reg- 
 istration, constitutes valid gift. 
 
 Cited in note (12 Eng. Rul. Cas. 438) on necessity of delivering gift inter- 
 
7 L.R.A. 388] L. R. A. CASES AS AUTHORITIES. 1310 
 
 7 L. R. A. 388, SPAIGHT v. MeGOVERN, 10 R. I. 658, 19 Atl. 246. 
 When killing of dogs permitted. 
 
 Cited in Harris v. Eaton, 20 R. I. 84, 37 Atl. 308, holding licensed dog cannot 
 be killed while trespassing unless he is doing the damage for which he may be 
 killed by statute. 
 
 Cited in notes (15 L.R.A. 250, 40 L.R.A. 510) on right to kill dogs: 
 (67 Am. St. Rep. 293) on justification for killing another's dog. 
 
 7 L. R. A. 390, UNITARIAN SOC. v. TUFTS, 151 Mass. 76, 23 N. E. 1006. 
 Specific legacies; ademption. 
 
 Cited in Tolman v. Tolman, 85 Me. 321, 27 Atl. 184, holding bequest of notes 
 adeemed by testator surrendering them and taking reconveyance of property for 
 which they were given; New Albany Trust Co. v. Powell, 29 Ind. App. 502, 
 64 N. E. 640, holding legatee not entitled to larger number of shares of stock than 
 owned by testator at death; Re Frahm, 120 Iowa, 91, 94 X. W. 444, holding 
 bequest of stock not adeemed by acceptance of note in lieu thereof; Drake v. 
 True, 72 N. H. 323, 56 Atl. 749, holding legatees of exact amount of stock owned 
 by testator at time will executed entitled only to amount owned at his death, 
 where some had been disposed of. 
 
 Cited in footnote to Evans v. Hunter, 17 L. R. A. 308, which holds bequests of 
 certain amounts in unidentified United States bonds general. 
 
 Cited in notes (95 Am. St. Rep. 359; 2 Eng. Rul. Cas. 26) on ademption of 
 specific legacy; (40 L.R.A. (N.S.) 543) on disposal, loss, or destruction, or pay- 
 ment of debt, as ademption of specific legacy or devise; (40 L.R.A. (N.S.) 534 i 
 on change in subject-matter or substitution of other property as ademption of 
 specific legacy or devise. 
 
 Distinguished in Slade v. Talbot, 182 Mass. 259, 94 Am. St. Rep. 653, 65 N. E. 
 374, holding that executor must purchase shares sufficient to make up number 
 bequeathed. 
 Specific and general legacies. 
 
 Cited in Thayer v. Paulding, 200 Mass. 100, 85 N. E. 868, holding under terms 
 of will legacy of shares of stock was specific. 
 
 Cited in notes (140 Am. St. Rep. 586, 614) on meaning of, and distinction be- 
 tween specific, demonstrative, and general bequests; (11 L.R.A. (N.S.) 60, 77, 81, 
 82, 85) on bequest of stocks, bonds, or notes as general or specific. 
 Republication of will by codicil. 
 
 Distinguished in Brown v. Wright, 194 Mass. 544, 80 N. E. 612. holding in 
 present case codicil altered will. 
 
 7 L. R. A. 392, GAY v. ROOKE, 151 Mass. 115, 21 Am. St. Rep. 434, 23 N. E. 835. 
 When interest runs. 
 
 Cited in Horn v. Hansen, 56 Minn. 48, 22 L. R. A. 619, 57 N. W. 315, holding 
 interest on "wheat ticket" runs from its date, the wheat having been delivered ; 
 Gould v. Emerson, 160 Mass. 441, 39 Am. St. Rep. 501, 35 N. E. 1065, holding 
 interest on note not bearing interest not allowable until demand. 
 
 Cited in note (8 L. R. A. 393) on negotiable instruments. 
 
 7 L. R. A. 393, SLATTERY v. WASON, 151 Mass. 266, 21 Am. St. Rep. 448, 
 
 23 N. E. 843. 
 "When income of trust fnnd subject to debts of beneficiary. 
 
 Cited in Reynolds v. Hanna, 55 Fed. 791, holding share of beneficiary in 
 income of trust estate which it was in discretion of trustee to apply to his use 
 
1311 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 393 
 
 is subject to his debts; Thornton v. Stanley, 55 Ohio St. 209, 45 N. E. 318, hold- 
 ing bequest of income of estate in trust for education and support of beneficiary 
 for life without limitation can be reached by creditors; Roberts v. Stevens, 84 
 Me. 327, 17 L. R. A. 268, 24 Atl. 873, holding creditors cannot reach income of 
 trust fund which testator has directed shall not be assigned or transferred except 
 to beneficiary; Billings v. Marsh, 153 Mass. 313, 10 L. R. A. 766, 25 Am. St 
 Rep. 635, 26 N. E. 1000, holding trust fund under will providing it shall not 
 be assignable or taken for any debt of legatee does not pass to assignee in 
 insolvency; Wemyss v. White, 159 Mass. 485, 34 X. E. 718, holding income of 
 trust fund, with discretion in trustee to discontinue payment, cannot be reached 
 by mortgagee of beneficiary; Evans v. Wall, 159 Mass. 169, 38 Am. St. Rep. 410. 
 34 X. E. 183, holding income of fund under will payable absolutely is subject to 
 rights of creditors; Patten v. Herring, 9 Tex. Civ. App. 646, 29 S. W. 388. 
 holding will left real estate to executor in trust for beneficiaries so that cred- 
 itors could not reach it; Wenzel v. Powder, 100 Md. 45, 108 Am. St. Rep. 380, 
 59 Atl. 194. holding where trust provided that income should be applied to sup- 
 port of settler and his family, and the income given to beneficiaries, the income 
 was subject to claims of creditors; Merchants' Xat. Bank v. Crist, 140 Iowa, 316, 
 23 L.R.A. (X.S.) 530, 132 Am. St. Rep. 267, 118 X. W. 394, holding creditors 
 cannot deprive the beneficiary of a spendthrift trust of the support provided for 
 him out of the trust property, at least so long as the support is in accordance 
 with his station in life. 
 
 Cited in footnotes to Morgan v. Halsey, 36 L. R. A. 716, which holds power of 
 appointment of property to testatrix's daughter in any manner she may deem 
 proper limited by subsequent clauses of will: Requa v. Graham, 52 L. R. A. 641, 
 which holds annuity in wife's will in lieu of other interests accepted by husband, 
 not trust beyond reach of creditors; Hutehinson v. Maxwell, 57 L. R. A. 384, 
 which denies power to create equitable life estate free from debts of beneficiary; 
 Jewell v. Louisville Trust Co. 53 L. R. A. 377, which denies creation of precatory 
 trust by will of merchant expressing desire for retention on liberal terms of 
 specified person in employ of firm of which testator a partner; Leigh v. Harri- 
 son, 18 L. R. A. 49, which denies creditor's right to reach debtor's interest under 
 spendthrift trust; Murphy v. Delano, 55 L. R. A. 727, which holds income of 
 spendthrift trust not within reach of creditors by void agreement of trustee to 
 pay certain portion of income absolutely to beneficiary; Bull v. Kentucky Nat. 
 Bank, 12 L. R. A. 37, which determines liability of spendthrift trust to payment 
 of beneficiary's debts; Roberts v. Stevens, 17 L. R. A. 266, which authorizes estab- 
 lishment of spendthrift trust free from rights of creditors; Williams v. Baptist 
 Church, 54 L. R. A. 427. which holds absolute gift, not trust, created by bequest to 
 church and "suggesting" as to application. 
 
 Cited in notes (11 L. R. A. 565) on spendthrift trusts; (13 L. R, A. 563) on 
 precatory words in will; (13 L. R. A. 212) on creator of estate may qualify its 
 enjoyment by annexing conditions and limitations; (24 Am. St. Rep. 695) on 
 spendthrift trusts. 
 
 Distinguished in Levi v. Bergman, 94 Md. 212. 50 Atl. 515, holding trustee 
 cannot exercise discretion under will by giving extra allowance in favor of 
 creditor of beneficiary in whom is no right to demand it. 
 Interest of beneficiaries In trust estate. 
 
 Cited in Jastram v. McAuslan. 26 R. I. 322. 58 Atl. 952, holding under a will 
 bequeathing residue of estate to trustees to pay part of income to widow during 
 her life and the remainder toward support of testator's children the interest 
 of children were assignable. 
 
7 L.R.A. 396] L. R. A. CASES AS AUTHORITIES. 1312 
 
 7 L. R. A. 396, MOORE v. VALDA, 151 Mass. 363, 23 N. E. 1102. 
 Ne exeat Tvrit. 
 
 Cited in footnotes to Midland Co. v. Broat, 17 L. R. A. 312, which holds 
 lex loci governs action for breach of bond given on issuance of ne exeat writ; 
 Miller v. Miller, 24 L. R, A. 137, which holds requirement of two years' resi- 
 dence to give jurisdiction of suit for divorce not applicable to suit for alimony. 
 
 7 L. R, A. 399, LOUISVILLE UNDERWRITERS v. DURLAXD, 123 Ind. 544, 
 
 24 N. E. 221. 
 Conditions precedent. 
 
 Cited in Burlington Ins. Co. v. Rivers, 9 Tex. Civ. App. 180, 28 S. W. 453, 
 holding provisos creating exceptions to general liability for loss need not be 
 negatived with general averment of performance of conditions ; Hanover F. 
 Ins. Co. v. Johnson, 26 Ind. App. 126, 57 N. E. 277, holding general averment 
 of performance of conditions of policy sufficient though coupled with allegations 
 of particular facts; Ft. Wayne Ins. Co. v. Irwin, 23 Ind. App. 56, 54 X. E. 817. 
 holding complaint sufficiently alleges condition precedent by averring performance 
 of all conditions in policy; Darnell v. Keller, 18 Ind. App. 105, 45 X. E. 676. 
 holding allegation of performance of conditions precedent need not be in exact 
 words of statute; Voluntary Relief Department v. Spencer, 17 Ind. App. 125, 
 46 X. E. 477, holding allegation in complaint that member had fully complied 
 with conditions of membership negatived idea of violation of condition precedent 
 in rules; Milwaukee Mechanics' Ins. Co. v. Stewart, 13 Ind. App. 645. 42 X. E. 
 290. holding waiver of condition precedent need not be specifically alleged in 
 complaint; Moffitt v. Phenix Ins. Co. 11 Ind. App. 240, 38 X. E. 835, holding 
 conditions precedent are sufficiently pleaded by averment that all conditions have 
 been performed; Modern Woodmen of America v. Noyes, 158 Ind. 567, 64 X. E. 
 21, holding plaintiff need not negative warranties and exceptions stated in policy. 
 Liability on insurance policy. 
 
 Cited in Vorse v. Jersey Plate Glass Ins. Co. 119 Iowa, 561, 60 L. R. A. 840, 
 97 Am. St. Rep. 330, 93 X. W. 569, holding breaking of windows by explosion pre- 
 ceding fire, not "damage by fire." within terms of policy; Wertheimer-Swarts 
 Shoe Co. v. United States Casualty Co. 172 Mo. 150, 61 L. R, A. 769, 95 Am. 
 St. Rep. 500, 72 S. W. 635, holding policy not avoided by fact that loss was 
 result of negligence of employee of insured. 
 
 Cited in note (19 L. R, A. 598) on liability of insurer for loss caused by ex- 
 plosion. 
 
 7 L. R, A. 403, GILKESON-SLOSS COMMISSION CO. v. LOXDOX, 53 Ark. 88, 
 
 13 S. W. 513. 
 Assignment for benefit of creditors, when invalid. 
 
 Followed in Smith v. Patterson, 57 Ark. 540, 22 S. W. 343, holding assignment 
 avoided by assignee's taking possession before completion of inventory and bond. 
 
 Cited in Baker v. Baer, 59 Ark. 510, 28 S. W. 28, holding assignee's possession 
 before bond and inventory filed vitiates assignment ; Badgett v. Johnson- Fife 
 Hat Co. 29 C. C. A. 232, 56 U. S. App. 416, 85 Fed. 410, and Fowler v. Blosser. 
 1 Ind. Terr. 39. 35 S. W. 247. holding oral agreement to give assignee possession 
 before filing inventory and bond invalidates assignment ; Pace v. J. S. Merrill 
 Drug Co. 2 Ind. Terr. 224. 48 S. W. 1061, and Churchill v. Hill, 59 Ark. 64, 
 26 S. W. 378, holding deed of assignment directing disposition of property 
 different from that prescribed by statute, fraudulent; Phelps v. Wyler, 67 Ark. 
 
1313 L. R. A. CASKS AS AUTHORITIES. [7 L.R.A. 407 
 
 103, 56 S. W. 632, holding deed of assignment providing possession not to be 
 given to assignee until filing of inventory and bond, valid. 
 
 7 L. R. A. 405, CARR.UTH-BYRNES HARDWARE CO. v. DEERE, 53 Ark. 140, 
 
 13 S. W. 517. 
 A it a<-li in < ii ;: right to sue necessary to validity* 
 
 Cited in Davis v. H. B. Claflin Co. 63 Ark. 173, 35 L. R. A. 786, 58 Am. St. 
 Rep. 102, 38 S. W. 1117, holding right of attachment is incident to and de- 
 pendent upon right to sue, and have judgment, for the debt. 
 Right to question validity of lien. 
 
 Cited in Glaser v. First Nat. Bank, 62 Ark. 179, 35 L. R. A. 771, 34 S. W. 1061. 
 holding junior attaching creditor cannot controvert existence of grounds of prior 
 attachment; Rice v. Dorrian, 57 Ark. 546, 22 S. W. 213, holding junior attach- 
 ing creditor may intervene in prior attachment suit for purpose of showing 
 same issued without authority in law or in fact; Moody v. McRimmon, 7 Tex. 
 Civ. App. 583, 27 S. W. 780, conceding for purpose of argument that junior 
 attaching creditor may enjoin sale under prior attachment issued by justice of 
 peace without citation. 
 
 Cited in note (35 L. R, A. 776) on right of creditors to question validity of 
 attachment. 
 Priority of liens. 
 
 Cited in Lowenstein v. Caruth, 59 Ark. 592, 28 S. W. 421, holding confession 
 of judgment without knowledge or consent of creditor cannot affect rights ac- 
 quired by third parties before ratification. 
 Snit without party's consent. 
 
 Cited in Wimberly v. State, 90 Ark. 517, 119 S. W. 668, holding a party may 
 adopt a suit brought in his name without bis consent. 
 Effect of ratification of agent's acts. 
 
 Cited in note (22 Am. St. Rep. 190) on effect of ratification of agent's unau- 
 thorized acts. 
 
 7 L. R. A. 407, PEOPLE ex rel. DARROW v. COLEMAN, 119 N. Y. 137, 23 
 
 X. E. 488. 
 Where property Is taxable. 
 
 Cited in People ex rel. Day v. Barker, 135 N. Y. 656, 48 N. Y. S. R. 558, 
 4 Silv. Ct. App. 649, 32 N. E. 252. holding securities in possession of three 
 trustees in another state, for nonresident beneficiary, not taxable although one 
 of the trustees resided in New York; People ex rel. Beaman v. Feitner, 168 X. Y. 
 363, 61 N. E. 280, holding under laws of 1896 trustees assessable in tax district 
 of residence for his proportionate share of trust estate; People ex rel. Lorillard 
 v. Barker, 70 Hun, 398, 24 N. Y. Supp. 63, holding resident of Rhode Island, 
 wintering in Xew York, not taxable in New York; People ex rel. Beaman v. 
 Feitner, 63 App. Div. 176, 71 N. Y. Supp. 261, holding securities for nonresident 
 beneficiaries deposited outside state, where one trustee resided, not taxable in 
 New York ; People ex rel. Day v. Tax Comrs. 42 N. Y. S. R. 449, 17 N. Y. Supp. 
 923, holding personal property forming part of trust fund actually deposited out- 
 side of state not taxable in Xew York; People ex rel. Day v. Barker, 44 N. Y. 
 S. R. 574, 17 N. Y. Supp. 944, holding trust securities outside state, although 
 liens on property within state, not taxable in New York; Augusta v. Kimball, 
 91 Me. 609, 41 L. R. A. 477, 40 Atl. 666, holding nonresident trustees of estate 
 of Maine decedent not taxable, after removal of property from state; Goodsite 
 v. Turner. 72 C. C. A. 281, 139 Fed. 5!.io. 2 Ann. Cas. 849, holding estate of 
 L.R.A. Au. Vol. I. 83. 
 
7 L.R.A. 407] L. R. A. CASES AS AUTHORITIES. 1314 
 
 beneficiary not taxable in Ohio when estate was not located therein by reason 
 of fact that trustee was resident of that state; Com. v. Peebles, 134 Ky. 134, 
 
 23 L.R.A.(N.S.) 1130, 119 S. W. 774, holding executor not required to pay taxes 
 upon property which he holds by virtue of his appointment in another state, 
 where no part of the property legally in his custody is within jurisdiction of 
 this state j People ex rel. Stebbins v. Purdy, 144 App. Div. 368, 129 N. Y. Supp. 
 273, to the point that property in possession of nonresident trustee was not 
 subject to taxation although two other trustees were residents; People ex rel. 
 Stebbins v. Purdy, 69 Misc. 368, 125 N. Y. Supp. 986, to the point that tax 
 laws make careful distinction between owners of property and persons who 
 merely hold property as agents, executors or trustees. 
 
 Cited in notes (16 L. R. A. 732) on situs for purpose of taxation of debts 
 evidenced by notes and mortgages; (20 L. R. A. 153) on place of taxation of 
 trust property; (62 Am. St. Rep. 467) on situs of personal property for purposes 
 of taxation; (44 L. ed. U. S. 177) on situs for taxation of debts evidenced by 
 notes or mortgages held by agent residing in different state from principal. 
 
 Distinguished in People ex rel. Brewster v. Barker, 8 Misc. 34, 28 N. Y. 
 Supp. 651, holding property of estate taxable in county where physically held 
 under executor's agreement. 
 
 7 L. R. A. 409, SCHUYLKILL RIVER E. S. R. CO. v. KERSEY, 133 Pa. 234, 
 
 19 Am. St. Rep. 632, 19 Atl. 553. 
 Eminent domain; consequential damages. 
 
 Cited in Ehret v. Schuylkill River E. S. R. Co. 151 Pa. 167, 30 W. N. C. 566, 
 
 24 Atl. 1068, holding damages for taking leasehold under power of eminent 
 domain may include value of lease for special purpose of lessee, and consequent 
 expense incurred by lessee from land being taken; Arkansas Valley & W. R. Co. 
 v. Witt, 19 Okla. 272, 13 L.R.A.(N.S.) 243, 91 Pac. 897; Blunck v. Chicago & 
 N. W. R. Co. 142 Iowa, 154, 120 N. W. 737, holding landowner is entitled to 
 be paid not merely for value of land taken but for all incidental injuries which 
 must necessarily result from the proper construction and maintenance of the 
 road; James McMillin Printing Co. v. Pittsburg, 216 Pa. 511, 65 Atl. 1091, 
 holding where a building is condemned the cost to the tenant of removing 
 machinery may be considered as bearing on the value of the leasehold interest; 
 William H. Moudy Mfg. Co. v. Pennsylvania R. Co. 212 Pa. 160, 61 Atl. 906,. 
 as to elements of disadvantage and burden imposed upon the land as a direct 
 and necessary result of location of railroad upon it being element of damages : 
 North Coast R. Co. v. Kraft Co. 63 Wash. 262, 115 Pac. 97, holding that in 
 proceedings to condemn leasehold evidence as to expense of moving and damage 
 to fixtures is admissible as showing value of unexpired term. 
 
 Cited in footnote to Jacksonville, T. & K. W. R. Co. v. Adams, 14 L. R. A. 
 533, which holds value of improvements put upon land by railroad unlawfully 
 taking possession, cannot be considered in estimating damage on subsequent 
 condemnation. 
 
 Cited in note ( 1 1 L. R. A. 605 ) on market price an element of damage. 
 
 Distinguished in Re Evergreen Street, 1 Dauphin Co. Rep. 70, holding lease 
 of land from month to month, without privilege of removing improvements, does 
 not entitle lessee to damages upon land being taken for street. 
 
 7 L. R. A. 411, ROYAL INS. CO. v. HELLER, 133 Pa. 152 ; 19 Atl. 349. 
 Defenses in actions ex contractn. 
 
 Cited in Bradly v. Potts, 33 W. N. C. 572, 2 Pa. Dist. R. 799, holding affi- 
 
1315 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 414 
 
 davit of defense necessary in all actions based on contract, although damages 
 
 unliquidated. 
 
 Insurance ruse*. 
 
 Cited on later appeal in 177 Pa. 265, 34 L. R. A. 601, 39 W. N. C. 62, 
 35 Atl. 726, Affirming 17 Pa. Co. Ct. 22, 4 Pa. Dist. R, 433, holding company 
 not relieved from any part of liability by tenant's receiving from landlord sum 
 received by latter under policy taken out by him. 
 
 Distinguished on later appeal in 151 Pa. 105, 30 W. N. C. 546, 25 Atl. 83, 
 holding insurance company not relieved from liability to indemnify tenant for 
 loss from payment of rent while premises uninhabitable, by agreement that 
 landlord might enter and rebuild. 
 Construction of rent insurance. 
 
 Cited in note (16 L.R.A. (N.S.) 1055) on construction of rent insurance. 
 
 7 L. R. A. 412, DUNCAN v. FLANAGAN, 133 Pa. 373, 19 Atl. 405. 
 Right to relief in equity. 
 
 Cited in note (11 L, R, A. 458) on necessity for suitor coming into equity 
 with clean hands. 
 Actions for contribution. 
 
 Cited in note (98 Am. St. Rep. 34) on actions for contribution not founded 
 on express promise. 
 
 7 L. R. A. 414, ATCHISON, T. & S. F. R, CO. v. COCHRAN, 43 Kan. 225, 19 
 
 Am. St. Rep. 129, 23 Pac. 151. 
 Identity of corporations. 
 
 Cited in White v. Pecos Land & Water Co. 18 Tex. Civ. App. 637, 45 S. W. 
 207, holding corporations composed of same persons, and operated in same inter- 
 est, not necessarily identical; State v. Morgan's L. & T. R. & S. S. Co. 106 La. 
 526, 31 So. 115, and Exchange Bank v. Macon Constr. Co. 97 Ga. 7, 33 L. R, A." 
 803, 25 S. E. 326, holding ownership by corporation of capital stock of another 
 corporation does not give title to property, nor make corporations identical; 
 Chase v. Michigan Teleph. Co. 121 Mich. 634, 80 N. W. 717, holding transfer 
 of property of corporation to another corporation owning nearly all of former 
 company's stock, not conclusive of consolidation ; State ex rel. Coleman v. Inter- 
 national Harvester Co. 81 Kan. 615, 106 Pac. 1053, holding when same persona 
 own all the stock in two corporations such corporations do not lose their sepa- 
 rate identity and become merged; State ex rel. Tacoma v. Tacoma R. & Power 
 Co. 61 Wash. 513, 32 L.R.A.(N.S.) 727, 112 Pac. 506, to the point that stock- 
 holders and officers of two corporations might be the same and corporations 
 different. 
 Railroad may purchase stock of another railway corporation. 
 
 Cited in Kimball v. Atchison, T. & S. F. R. Co. 46 Fed. 889, holding, under 
 law of Kansas, purchase by railroad 1 of that state of stock of parallel road in 
 another state, not invalid. 
 
 Cited in notes (9 L.R.A. 651) on power of corporation to purchase stock of 
 other corporations; (36 Am. St. Rep. 141) on right to acquire stock in another 
 corporation. 
 Liability for acts of agent representing several railroads. 
 
 Cited in Scott v. Cleveland, C. C. & St. L. R. Co. 144 Ind. 133, 32 L. R, A. 
 156, 43 N. E. 133. holding railroad not liable for mistake of its agent in sale 
 of ticket, while acting as agent for another railroad. 
 
 Cited in notes (35 L.R.A. (N.S.) 771) on liability of railroad possessing stock 
 
7 L.R.A. 414] L. R. A. CASES AS AUTHORITIES. 1316 
 
 control of another for its acts and contracts; (5 Eng. Rul. Cas. 463) on liability 
 for injuries by connecting carrier, in absence of control or interest. 
 
 7 L. R. A. 419, PECKHAM v. LEGO, 57 Conn. 553, 14 Am. St. Rep. 130, 19 Atl. 
 
 392. 
 Effect of power of sale in will to enlarge estate. 
 
 Cited in Sill v. White, 62 Conn. 434, 20 L. R. A. 322, 26 Atl. 396, holding 
 that coupling power of sale with devise of life estate does not convert life 
 estate into greater estate; Security Co. v. Pratt, 65 Conn. 181, 32 Atl. 396, hold- 
 ing that unexecuted power of sale with right to appropriate proceeds for benefit 
 of life estate does not clothe life tenant with equitable fee; Mansfield v. Shelton, 
 67 Conn. 394, 52 Am. St. Rep. 285, 35 Atl. 271, holding devise to use devisee 
 "without any restrictions or limitations whatever," with attempted disposition 
 of remainder, gives first taker life estate only; Little v. Geer, 69 Conn. 415, 
 37 Atl. 1056, holding devise of use and income of estate, with power to sell as 
 devisee "may desire for her comfort and maintenance," does not give absolute 
 estate; Hull v. Halloway, 58 Conn. 217, 20 Atl. 445, holding devise of income for 
 life, with authority to use so much of principal as beneficiary may "require" for 
 personal use, gives life estate only, unless personal needs of beneficiary require 
 principal; Bartlett v. Buckland, 78 Conn. 519, 63 Atl. 350, holding widow ac- 
 quiring under* her husband's will a life estate in his land with power of sale 
 provided the "use and improvement" was insufficient for her support might 
 exercise power of sale without order of court; Russell v. Hartley, 83 Conn. 660, 
 78 Atl. 320, holding that court of equity may review decision of trustee in 
 regard to extent principal should be used where discretion conferred by will 
 was not one of special confidence. 
 
 Cited in footnotes to Cornwell v. Wulff, 45 L. R. A. 53, which holds absolute 
 power of disposition in instrument conveying land carries full power in land 
 itself; Roth v. Rauschenbusch, 61 L. R. A. 455, which holds fee simple by devise 
 to one absolutely and forever, not cut down by subsequent provision as to dis- 
 position of any remainder on devisee's death. 
 
 Cited in notes (9 L.R.A. 168) on devise of life estate to wife; (13 L.R.A. 
 (N.S.) 461) on power of devisee for life, with power to consume, to convey 
 good title; (23 Am. St. Rep. 410) on construing devise to widow as estate for 
 life; (139 Am. St. Rep. 88) on devise or bequest for life with power of disposal. 
 
 Distinguished in Griffin v. Nichols, 224 Mo. 309, 123 S. W. 1063, holding 
 bequest of testator of residue of estate to wife with power to make necessary 
 disposition thereof for her comfort and support did not limit her power of sale 
 to her life estate. 
 Construction which disposes of whole estate favored. 
 
 Cited in Weed v. Scofield, 73 Conn. 677, 49 Atl. 22, holding construction of 
 will which would result in partial intestacy should be avoided; Tarrant v. 
 Backus, 63 Conn. 281, 28 Atl. 46, holding intention of testator to make full 
 disposition of estate, and avoid intestacy as to any portion, presumed; Mallory 
 v. Mallory, 72 Conn. 500, 45 Atl. 164, holding devise to trustees for use of 
 beneficiary for life, with power of sale and appropriation if necessary for com- 
 fort and maintenance, gives residuary devisee equitable remainder in fee; Beers 
 v. Narramore, 61 Conn. 18, 22 Atl. 1061, holding devise of life estate in "Old 
 Mill Quarry property" included entire tract of which quarry was part. 
 
 Cited in note (55 Am. St. Rep. 310) on avoiding construction resulting in 
 partial intestacy. 
 
1317 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 420 
 
 Devise or bequest by Implication. 
 
 Cited in note (15 L.R.A. (N.S.) 74) on devise or bequest by implication. 
 
 7 L. R. A. 423, SPAULDING v. BERNHARD, 76 Wis. 368, 20 Am. St. Rep. 75, 
 
 44 N. W. 643. 
 Holidays. 
 
 Cited in Deere v. Hodges, 59 Neb. 292, 80 N. W. 897, holding approval of 
 appeal bond not within statute prohibiting transaction of "judicial business" 
 on Sunday or legal holiday; State v. Duncan, 118 La. 707, 10 L.R.A. (N.S.) 795, 
 43 So. 283, 11 A. & E. Ann. Gas. 557, holding statutory holidays have not the 
 sacredness of the Sabbath and there may be legal business transacted on a 
 statutory holiday not null, if there is silence when a person should object and 
 speak. 
 
 Cited in note (19 L. R. A. 320) on how far law of holidays extends to matters 
 other than those relating to negotiable paper. 
 
 7 L. R. A. 425, ANONYMOUS, 89 Ala. 291, 18 Am. St. Rep. 116, 7 So. 100. 
 Evidence; physical examination of person. 
 
 Cited in Alabama G. S. R. Co. v. Hill, 90 Ala. 77, 9 L. R, A. 444, 24 Am. St. 
 Rep. 764, 8 So. 90, holding claimant for personal injuries of internal nature 
 may be required to submit to physical examination by physicians under direc- 
 tion of court; Bunger v. Bunger, 85 Kan. 566, 117 Pac. 1017, holding that 
 existence of impotency as ground for divorce must be shown by best evidence 
 obtainable, and should not be decided against party unless supported by testi- 
 mony of physician who made examination. 
 
 Cited in footnote to Alabama G. S. R. Co. v. Hill, 9 L. R, A. 442, which holds 
 delicacy and refinement of feeling not ground for refusing to order surgical 
 examination of plaintiff. 
 
 Cited in notes (14 L.R.A. 466) on power to compel plaintiff to submit to 
 physical examination; (68 Am. St. Rep. 251) on physical examination of parties 
 by order of court. 
 Impotency as ground for divorce. 
 
 Cited in note (116 Am. St. Rep. 244, 245) on impotency as ground for divorce. 
 Implied representations In contracts to marry. 
 
 Cited in note (44 Am. St. Rep. 383) on express and implied representations 
 in contracts to marry. 
 Validity of marriage. 
 
 Cited in Bennett v. Bennett, 169 Ala. 621, 53 So. 986, holding that physical 
 incapacity does not render marriage void but only voidable. 
 
 7 L. R. A. 426, STATE ex rel. ATTY. GEN. v. SAVAGE, 89 Ala. 1, 7 So. 183. 
 Intoxication. 
 
 Cited in State ex rel. Atty. Gen. v. Robinson, 111 Ala. 485, 20 So. 30, holding 
 only occasional intoxication, and not habitual drunkenness, of probate judge 
 shown; People v. Radley, 127 Mich. 630, 86 N. W. 1029, holding charge proper 
 that habitual drunkenness produced a disorderly person; Roden v. State, 136 
 Ala. 90, 34 So. 351, holding intoxication under statute to mean condition pro- 
 duced by drink in which mental or physical faculties are interfered with or 
 disturbed. 
 
 Cited in notes (28 L. R. A. 326) on sufficiency of evidence before grand jury 
 to sustain indictment ; ( 28 .L. R. A. 35 ) on concurrence by twelve granti jurors. 
 
7 L.R.A. 426] L. R. A. CASES AS AUTHORITIES. 1318 
 
 "Habit." 
 
 Cited in Marks v. Herren, 47 Ore. 608, 83 Pac. 385, holding word "habitually" 
 does not necessarily imply that an act has been so often repeated as to become 
 a "habit." 
 
 7 L. R, A. 428, GARRETTSON v. NORTH ATCHISON BANK, 39 Fed. 163. 
 Certification of check by telegram. 
 
 Reaffirmed on hearing on merits without special discussion. 
 
 Cited in First Nat. Bank v. Commercial Sav. Bank, 74 Kan. 613, 8 L.R.A. 
 (N.S.) 1152, 118 Am. St. Rep. 340, 87 Pac. 746, 11 A. & E. Ann. Gas. 281, 
 holding certification shown by the telegraphic inquiry, "Is J. F. Donald's check 
 on you $360 good ?" and a response "J. F. Donald's check is good for sum named." 
 Negotiable paper; estoppel to deny liability. 
 
 Second appeal in 2 C. C. A. 145, 4 U. S. App. 557, 51 Fed. 168, Affirming 47 
 Fed. 871, holding certification of bill as '"good" amounts to appropriation of 
 fund for drawer, and obligation of drawee to parties acting thereon is irre- 
 vocably fixed. 
 
 Cited in note (23 L. R, A. 836) on liability of bank as accommodation in- 
 dorser. 
 
 Distinguished in Hollins v. Hubbard, 165 N. Y. 544, 59 N. E. 317, holding 
 commission merchants promising to deliver bills of lading "next week" without 
 disclosing lien thereon, does not estop them claiming lien as against bank paying 
 draft in reliance upon promise. 
 Statute of frauds; telegrams. 
 
 Cited in note (50 L. R. A. 247) on telegrams as writings to make contract 
 within statute of frauds. 
 Acceptance of check by bank. 
 
 Cited in notes (118 Am. St. Rep. 352) on what amounts to acceptance of 
 check at bank; (4 Eng. Rul. Gas. 242) on right of drawee only to accept bill of 
 exchange. 
 
 7 L. R. A. 431, DATZ v. CLEVELAND, 52 N. J. L. 188, 19 Atl. 17, 20 Atl. 317. 
 Constitutional law Local or special legislation. 
 
 Cited in State, McLaughlin, Prosecutor, v. Newark, 57 N. J. L. 300, 30 Atl. 
 543, holding act "providing for establishment of wards in cities of first class" 
 constitutional; State, Johnson, Prosecutor, v. Asbury Park, 58 N. J. L. 608, 
 33 Atl. 850, holding act providing' for licenses, relating only to boroughs, con- 
 stitutional; Eckerson v. Des Moines, 137 Iowa, 471, 115 N. W. 177, holding acts 
 creating or having relation to a created class of municipal organizations are not 
 for that reason to be denounced as falling within the constitutional prohibition; 
 State ex rel. McCarthy v. Queen, 76 N. J. L. 146, 69 Atl. 30, on the validity 
 of an act providing for appointment of officers in first class cities. 
 
 Cited in footnotes to State v. Elizabeth, 23 L. R. A. 525, which holds invalid 
 special statute discriminating between municipalities already having and those 
 not having racecourse; Hamilton County v. Rasche Bros. 19 L. R. A. 584. which 
 holds statute as to taxes not applying to all parts of state unconstitutional ; 
 Milwaukee County v. Isenring, 53 L. R. A. 635, which holds act regulating 
 sheriff's fees for particular county, local. 
 Option legislation. 
 
 Cited in Landis v. Ashworth, 57 N. J. L. 512, 31 Atl. 1017, holding act dele- 
 gating power to each district to determine amount to be raised by tax for school 
 purposes, constitutional; Kennedy v. Belinar, 61 X. J. L. 21, 38 Atl. 756, holding 
 
1319 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 431 
 
 act not operative in any borough unless accepted by majority vote, constitutional ; 
 State, Lowthrop, Prosecutor, v. Trenton, 61 N. J. L. 487, 40 Atl. 442, holding law 
 of which local operation depends on voters' consent, constitutional; State v. 
 Clayton, 53 N. J. L. 280, 21 Atl. 1026, holding act providing for incorporation 
 of any township or part thereof, having certain area and population, at option 
 of electors, constitutional; State, Morris, Prosecutor, v. Bayonne, 53 N. J. L. 303, 
 21 Atl. 453, holding act granting powers to be exercised at option of municipality, 
 constitutional; Allison v. Corker, 67 N. J. L. 603, 60 L. R. A. 568, 52 Atl. 362, 
 holding act providing for division of townships into road districts, imposing 
 condition of local acceptance, constitutional; Adams v. Beloit, 105 Wis. 373, 
 47 L. R. A. 446, 81 N. W. 869, upholding statute giving cities incorporated 
 under special charters option to adopt provisions of general statute; State ex rel. 
 Fire Comrs. v. Trenton, 53 N. J. L. 570, 22 Atl. 731, holding diversity of govern- 
 ment flowing from grant of powers exercisable at option of locality does not in- 
 validate act; State, Noonan, Prosecutor, v. Hudson County, 52 N. J. L. 402, 
 20 Atl. 255, holding act providing for exercise at discretionary power in layin 
 out highways, occasioning diversities in application, constitutional ; Albright v. 
 Sussex County Lake & Park Commission, 68 N. J. L. 531, 53 Atl. 612, holding act 
 providing for adoption of benefits by referendum not unconstitutional because one 
 county may adopt and another reject; State ex rel. Herrick v. Hoos, 61 X. J. L. 
 464, 39 Atl. 656, to point that act providing for contract of water department 
 had been accepted by voters of city; Bryan v. Voss, 143 Ky. 426, 136 S. W. 884, 
 holding that legislature may make law which is to take effect upon its adoption 
 by city; Jersey City Supply Co. v. Jersey City, 71 N. J. L. 635, 60 Atl. 381, 
 2 A. & E. Ann. Cas. 507, on the adoption by Jersey City of an act entitled "An 
 act concerning the government of cities of this state; Wilson ex rel. Booth v. 
 McGuinness, 78 N. J. L. 381, 75 Atl. 455, to the point that legislature may 
 make laws to become effective upon adoption by municipality. 
 
 Distinguished in De Hart v. Atlantic City, 63 N. J. L. 227, 43 Atl. 742, Re- 
 versing 62 N. J. L. 587, 41 Atl. 687, holding act providing for establishment of 
 district courts in cities with 20,000 population or less which adopt act within 
 three months, unconstitutional : State ex rel. Childs v. Copeland, 66 Minn. 320, 
 34 L. R. A. 780, 61 Am. St. Rep. 410, 69 N. W. 27, holding law granting charter 
 powers to cities of certain class, to take effect only upon adoption by each city, 
 unconstitutional; Robt. J. Boyd Paving & Contracting Co. v. Ward, 28 C. C. A. 
 672, 55 U. S. App. 730, 85 Fed. 32, holding act conferring certain powers on 
 such cities, not possessing them under general laws, as should adopt its pro- 
 visions, unconstitutional: State ex rel. Renner v. Holmes, 68 N. J. L. 194, 53 Atl. 
 76, holding act to reorganize boards of freeholders rendered unconstitutional by 
 provision requiring proceedings for adoption to be initiated before certain date. 
 Effect of non-optional general law. 
 
 Distinguished in State v. Bayonne, 56 N. J. L. 299, 28 Atl. 713, holding act 
 directing mode of making sewer assessments in cities without provision for 
 optional acceptance supersedes charter provisions. 
 Validity of action of absent mayor's representative. 
 
 Cited in State, Williams, Prosecutor, v. Bayonne, 55 N. J. L. 64, 25 Atl. 407, 
 holding officer upon whom absent mayor's duties devolve may sign licenses. 
 Legislative power to remedy defective act by amendment. 
 
 Cited in State, Glen Ridge, Prosecutor, v. Stout, 58 N. J. L. 602, 33 Ati. 858; 
 State ex rel. Wheeler v. Stuht. 52 Neb. 220. 71 X. W. 941, holding inadequate 
 grant to city of powers of government may be remedied by subsequent legisla- 
 tion; Rutten v. Paterson, 73 N. J. L. 477, 64 Atl. 573, holding the power to 
 
7 L.R.A. 431] L. R. A. CASES AS AUTHORITIES. 1320 
 
 validate defective proceedings does not authorize the employment of a validating 
 act as a means of regulating the internal affairs of a city, if such act be 
 special and local. 
 to provide for determination of election contests. 
 
 Cited in Re Lemoyne, 15 Pa. Dist. R. 245, on power of legislature to provide 
 for determination of controversies relating to elections. 
 
 Constitutional prohibition ag-ainst incorporating existing: law In sub- 
 sequent act by reference thereto. 
 
 Cited in Re Haynes, 54 N. J. L. 26, 22 Atl. 923, holding act providing com- 
 missioners "shall have powers and capacities theretofore vested by existing legis- 
 lation" in certain other officers, constitutional. 
 
 7 L. R. A. 435, DELAWARE, L. & W. R. CO. v. TRAUTWEIN, 52 N. J. L. 169, 
 
 19 Am. St. Rep. 442, 19 Atl. 178. 
 Carrier's duties to passengers independent of contract. 
 
 Cited in New York, L. E. & W. R. Co. v. Ball, 53 N. J. L. 286, 21 Atl. 1052, 
 holding independent of contract, railroad under obligation to take due and rea- 
 sonable care for safe carriage of passenger; Pennsylvania R. Co. v. Knight, 58 
 N. J. L. 288, 33 Atl. 845, holding duty of safe carriage arising from relation of 
 passenger and carrier, independent of contract, applicable to both passenger and 
 baggage; Exton v. Central R, Co. 62 N. J. L. 13, 56 L. R. A. 511, 42 Atl. 486, 
 holding person entering waiting room for ferry boat of railroad is passenger; 
 Xewbury v. Luke, 68 N. J. L. 190, 52 Atl. 625, holding Sunday hiring no defense 
 to action for damages for overdriving horse; McNeill v. Durham & C. R. Co. 
 135 N. C. 690, 47 S. E. 765, holding railroad company liable to one injured 
 through its negligence while unlawfully riding on a pass; Gabbert v. Hackett, 
 135 Wis. 93, 14 L.R.A.(N.S.) 1073, 115 N. W. 345, holding policeman entering 
 car in good faith believing that he had right to ride free was a passenger though 
 ordinance requiring free transportation may have been void; McXeill v. Durham 
 & C. R Co. 135 N. C. 682, 67 L.R.A. 233, 47 S. E. 765, holding a gratuitous 
 passenger entitled to recover for injuries resulting from negligence of carrier; 
 Schuyler v. Southern P. Co. 37 Utah, 607, 109 Pac. 458, holding that relation 
 of carrier and passenger may exist independent of any contract between parties 
 for transportation. 
 
 Cited in notes (13 L.R.A. 95) on duty of raihvay conductor in stopping and 
 starting trains; (35 L. ed. U. S. 921) on negligence of railroad companies 
 toward passengers. 
 Safety of ingress and egress to and from depots and trains. 
 
 Cited in Girton v. Lehigh Valley R. Co. 17 Pa. Super. Ct. 149, holding pas- 
 sengers have right to assume that w r ay provided for passage from train to depot 
 reasonably safe; Exton v. Central R, Co. 62 N. J. L. 13, 56 L. R. A. 511, 42 Atl. 
 486, holding railroad must use reasonable care to prevent injury to passenger 
 using usual passageway to baggage room; Collins v. Toledo, A. A. & N. M. R. 
 Co. 80 Mich. 395, 45 N. W. 178, holding where depot platform not provided with 
 steps, railroad liable for injury arising from use of plank provided by public: 
 Falk v. New York, S. & W. R. Co. 56 N. J. L. 383, 29 Atl. 157, holding stopping 
 train on trestle in night time without lights, and without warning to passengers 
 or offer of assistance in alighting, is negligence; Atchison, T. & S. F. R. Co. 
 v. Jandera, 24 Okla. 113, 24 L.R.A. (N.S.) 539, 104 Pac. 339, 20 Ann. Cas. 316, 
 holding that railroad is liable for injury to person upon its premises for purpose 
 of mailing letter, caused by defective condition station grounds; Yetter v. 
 Gloucester Ferry Co. 76 N. J. L. 250, 69 Atl. 1079, holding responsibility for 
 
13*1 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 435 
 
 safety of passenger does not cease upon her landing upon the pier; Bottum v. 
 Hawks, 84 Vt. 385, 35 L.R.A.(N.S.) 448, 79 Atl. 858, to the point railroad was 
 liable to passenger who was injured on defective stairway leading to street, 
 which was built by private persons; Carter v. Rockford & Interurban R. Co. 
 147 Wis. 89, 132 N. VV. 598, holding that railroad is liable for injuries to 
 passenger caused by defective steps leading from platform to street even though 
 such steps were built and repaired by third persons. 
 
 Cited in footnote to Herrman v. Great Northern R, Co. 57 L. R. A. 390, which 
 holds railroad company liable for injury to passenger from unsafe condition of 
 depot premises leased of union depot company or its receiver. 
 
 Cited in notes (20 L. R. A. 520) on mea*ure of care carrier must exercise to 
 keep platforms and approaches safe; (16 L. R_ A. 593) on duty of carrier to 
 maintain safe approaches beyond premises; (11 L. R, A. 721) on liability of 
 railroad for injuries from defective platform; (23 L.R.A. (N.S. ) 634) on right 
 of passenger using approach to station provided by carrier; (33 L.R.A. (X.S.) 
 864) on degree of care toward passenger at station; (26 Am. St. Rep. 817) on 
 duty to provide safe means of access to and from railway depot. 
 
 Distinguished in Devoe v. New York, O. & W. R. Co. 63 N. J. L. 280, 43 Atl. 
 899, holding acquiescence of railroad in use of way made by passengers across 
 tracks to railroad creates no duty except to refrain from wilful injuries. 
 Invitation to use Tray. 
 
 Cited in Furey v. New York C. & H. R, R. Co. 67 N. J. L. 276, 51 Atl. 505, 
 holding opening left between cars as convenience for loading and unloading, not 
 invitation to use same as passageway; Haselton v. Portsmouth, K. & Y. Street 
 R. Co. 71 N. H. 591, 53 Atl. 1016, holding practice of street railway to receive 
 and discharge passengers at platform not constructed by it, invitation to use it 
 in getting on and off cars; Rainey v. Grand Trunk R. Co. 84 Vt. 526, 80 Atl. 
 723, to the point that open vestibule door might be considered invitation to 
 passenger to enter train or alight therefrom at station. 
 
 Cited in footnote to Cotant v. Boone Suburban R. Co. 69 L.R.A. 982, which 
 holds railroad company inviting passengers to use stile over wire fence in leaving 
 grounds bound to use at least ordinary care to see that it is fit for the purpose 
 intended. 
 Use of unsafe way tvhen another provided. 
 
 Cited in Phillips v. Burlington Library Co. 55 N. J. L. 318, 27 Atl. 478, holding 
 person using exit made unsafe by owner not precluded from recovering for injury 
 because of existence of another and safer way; Schlessinger v. Manhattan R. 
 Co. 49 Misc. 505, 98 N. Y. Supp. 840, holding the duty applies to guard against 
 injury where an approach constructed by the city is constantly and notoriously 
 used though the company maintains its own approach; Cotant v. Boone Suburban 
 R. Co. 125 Iowa, 51, 69 L.R.A. 984, 99 N. W. 115, holding the duty to use 
 ordinary care exists where a stile put up by third party over fence separating 
 company's property is constantly used in approaching station grounds to knowl- 
 edge of company. 
 Contributory negligence. 
 
 Cited in Atlantic City R. Co. v. Goodin, 62 N. J. L. 396, 45 L. R. A. 673, 72 
 Am. St. Rep. 652, 42 Atl. 333, holding passenger alighting from train not under 
 obligation to look and listen before crossing track leading to station. 
 Sunday lavrs. 
 
 Cited in footnotes to Gross v. Miller, 26 L. R. A. 605, which holds violation of 
 Sunday law by hunting no defense to action for negligent injury; Dugan v. 
 -State, 9 L. R, A. 321, which holds pilot on boat carrying pleasure parties on 
 
7 L.R.A. 435] L. E. A. CASES AS AUTHORITIES. 1322 
 
 Sunday, punishable; Van Auken v. Chicago & W. M. R, Co. 22 L. R. A. 33 r 
 which holds riding home from station quietly on Sunday evening not labor. 
 
 Cited in note (36 L.R.A. (X.S.) 548) on violation of Sunday law as defense 
 to action for personal injuries. 
 
 Right to recover on ground Independent of act declared illegal- 
 Cited in Brennan v. United Hatters, 73 N. J. L. 740, 9 L.R.A. (X.S.) 259, 
 118 Am. St. Rep. 727, 65 Atl. 365, 9 A. & E. Ann. Cas. 698, holding where 
 party enters into an agreement void because contrary to public policy, his right 
 to recover upon a ground of action existing independent of the agreement is 
 not overthrown by operation of the maxim in pari delicto; Easton Nat. Bank 
 v. American Brick & Tile Co. 70 N. J. Eq. 747, 8 L.R.A. (X.S.) 279 ; 64 Atl. 917, 
 holding the right of one as a creditor remains unimpaired though he, as stock- 
 holder and officer, participates in an issue of stock void on ground of public 
 policy; Warren v. Pirn, 66 N. J. Eq. 399, 59 Atl. 773, on right to recover inde- 
 pendent of illegal agreement. 
 
 7 L. R. A. 439, DEVOL v. DYE, 123 Ind. 321, 24 N. E. 246. 
 Gifts; delivery essential to. 
 
 Cited in Gammon Theological Seminary v. Robbins, 128 Ind. 93, 12 L. R. A. 
 508, footnote p. 506, 27 X. E.. 341. which holds instrument declaring that holder 
 gives note which he retains insufficient as gift; Anderson v. Anderson, 126 Ind. 
 67, 24 N". E. 1036, holding signed and acknowledged deeds retained by grantor, 
 without effort to deliver, pass no title; Smith's Estate, 23 Lane. L. Rev. 14. 
 holding that delivery of note to university is not executed gift of money and 
 is void on death of maker before payment; Scott v. Union & Planters' Bank 
 & T. Co. 123 Tenn. 296, 130 S. W. 757, holding that gift causa mortis was 
 consummated where certificate of deposit was indorsed by owner to donee, in 
 contemplation of death, and was also indorsed by donee and given to third 
 person to cash, but where donor died before payment. 
 
 Cited in notes (11 L. R, A. 684) on delivery and retention essential to validity 
 of gift; (21 L. R. A. 695) on undelivered written transfer or assignment of 
 property as a gift; (99 Am. St. Rep. 892, 894, 900) on gifts causa mortis: 
 (9 Eng. Rul. Cas. 866) on requisites of donatio causa mortis. 
 "What delivery sufficient. 
 
 Cited in Martin v. McCullough, 136 Ind. 338, 34 N. E. 819, holding delivery to 
 one of several beneficiaries in behalf of all constitutes him trustee for donees; 
 Bickford v. Mattocks, 95 Me. 551, 50 Atl. 894, holding delivery of note, subse- 
 quently returned to agent, to send to donee, does not constitute valid gift; Caylor 
 v. Caylor, 22 Ind. App. 672, 72 Am. St. Rep. 331, 52 N. E. 465. holding direction 
 to third person to deliver property in his possession to donee constitutes valid 
 gift; Hogan v. Sullivan, 114 Iowa. 460. 87 N. W. 447, holding bank deposit in 
 third person's name, followed by directions as to distribution just before donor's 
 death, constitutes valid gift; Goelz v. People's Sav. Bank, 31 Ind. App. 73, 07 X. 
 E. 232. holding deposit in bank for and in name of donee, passbook in donee's 
 name being retained by donor until death, valid gift inter vivos ; Deneff v. Helms, 
 42 Or. 165, 70 Pac. 390, holding direction that deposits be delivered to certain 
 person, complied with same day. donor dying next day, valid gift causa mortis: 
 Waite v. Grubbe, 43 Or. 411, 73 Pac. 206, holding taking of donee to whereabouts 
 of buried money indicating definitely where concealed, sufficient delivery; John- 
 son v. Colley, 101 Va. 420, 99 Am. St. Rep. 884, 44 S. E. 721, holding third per- 
 son receiving gift causa mortis for donee trustee of latter: Keyes v. Meyers. 
 147 Cal. 706. 82 Pac. 304, holding where deed is delivered in escrow to satisfy 
 claim of creditor with conditional agreement, it did not take effect as a present 
 
1323 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 442 
 
 conveyance; Varley v. Sims, 100 Minn. 337, 8 L.R.A. (N.S.) 830, 117 Am. St. 
 Rep. 694, 111 N. W. 269, 10 A. & E. Ann. Gas. 473, holding, unless the contrary 
 appears, the persons to whom delivery is made takes as the trustee of the donee; 
 Hamlin v. Hamlin, 59 Wash. 189, 109 Pac. 362, holding that delivery of written 
 assignment of note and mortgage to assignee, and never thereafter having do- 
 minion over same, was sufficient delivery of gift causa mortis; Talbot v. Talbot, 
 32 R. I. 91, 78 Atl. 535, Ann. Cas. 1912C, 1221, holding that deposit of stock 
 certificate in safe deposit box together with instruments signed by testator, 
 purporting to create trusts in favor of beneficiary constituted sufficient delivery. 
 
 Cited in footnotes to Porter v. Woodhouse, 13 L. R. A. 64, which holds war- 
 ranty deeds not delivered by donor giving to third person; Peck v. Rees, 13 L. R, 
 A. 714, which holds delivery of deed by donor to own agent insufficient. 
 
 Cited in notes ( 18 L. R. A. 170, 171 ) on sufficiency of constructive delivery to 
 sustain gift causa mortis; (40 L. R. A. (N. S. ) 905), on transfer of key to re- 
 ceptacle as sustaining gift of contents. 
 
 Distinguished in Stokes v. Sprague, 110 Iowa, 97, 81 N. W. 195, holding state- 
 ment of intention to give, and promise of third person to deliver, without sur- 
 rendering possession of notes, not valid gift; Telford v. Patton, 144 111. 621, 33 
 N. E. 1119, holding taking certificate of deposit in another's name, unaccompanied 
 by declaration of trust, retained by depositor, no gift. 
 
 Disapproved in effect in Bieber v. Borekmann, 70 Mo. App. 508, holding de- 
 livery by sick person to agent, with instructions to deliver only in case of death, 
 not valid gift. 
 Sufficiency of acceptance. 
 
 Cited in Re Podhajsky, 137 Iowa, 747, 115 N. W. 590, holding act of trustee 
 or third person receiving property for benefit of donee is deemed to be in the 
 interest of the latter, and acceptance of gift is presumed; Foley v. Harrison, 
 233 Mo. 562, 136 S. W. 354, to the point that acceptance by donee is presumed 
 where there has been delivery to trustee for his benefit, the gift being beneficial. 
 Competency of evidence us affected by interest in litigation. 
 
 Cited in Doty v. Doty, 118 Ky. 214, 2 L.R.A.(N.S.) 716, 80 S. W. 803, 4 A. 
 
 6 E. Ann. Cas. 1064, holding a guardian of an infant, a party to the action 
 as relator, to recover under a contract made for benefit of infant, was competent 
 
 to testifv to the contract. 
 
 
 
 7 L. R. A. 442, BORN v. FIRST NAT. BANK, 123 Ind. 78, 18 Am. St. Rep. 312, 
 
 24 N. E. 173. 
 Checks, effect of certification on drawer's liability. 
 
 Cited in Minot v. Russ, 156 Mass. 461, 16 L. R. A. 512, 32 Am. St. Rep. 472, 31 
 X. E. 489, and Oyster & Fish Co. v. National Lafayette Bank, 51 Ohio St. Ill, 46 
 Am. St. Rep. 560, 36 N. E. 833, holding acceptance of certified check does not 
 release drawer; Head v. Hornblower, 156 Mass. 461, 16 L. R. A. 512, 31 N. E. 
 489; Continental Nat. Bank v. Cornhauser, 37 111. App. 480; Meridan Nat. Bank 
 v. First Nat. Bank, 7 Ind. App. 327, 52 Am. St. Rep. 450, 33 N. E. 247, holding 
 certification of check in holder's hands releases drawer; Smith v. Field, 19 Idaho, 
 564, 114 Pac. 668, Ann. Cas. 1012C, 354, to the point that certification of check 
 in itself carries with it no evidence of solvency of bank; Scheffenacker v. Hoopes, 
 113 Md. 117, 29 L.R.A. (N.S.) 209, 77 Atl. 130, holding that certification of 
 check by bank operates to appropriate funds by drawer to amount of check. 
 
 Cited in notes (12 L. R. A. 492) on effect of certification of checks; ( 16 L. R, 
 A. 511) on effect of certification of check on liability of drawer; (10 L. R. A. 
 369) on substituted obligation; (9 L.R.A. (N.S.) 698) on certification of check 
 
7 L.R.A. 442] L. R. A. CASES AS AUTHORITIES. 1324 
 
 as release of drawer or indorser; (10 L.R.A.(N.S.) 536; 128 Am. St. Rep. 692, 
 696, 697, 700) on effect of certification of check on drawer's liability. 
 What constitutes payment. 
 
 Cited in Cox v. Hayes, 18 Ind. App. 223, 47 N. E. 844, holding delivery of check, 
 in absence of agreement, does not extinguish debt; National L. Ins. Co. v. Goble, 
 51 Neb. 8, 70 N. W. 503, holding in absence of agreement, remittance of bank 
 draft not payment; Williams v. Costello, 95 Ala. 593, 11 So. 9, holding order of 
 third person, in absence of agreement, not payment for goods sold; Combs v. 
 Bays, 19 Ind. App. 265, 49 N. E. 358, holding giving of new note, in absence of 
 agreement, does not discharge prior note; Baumgardner v. Henry, 131 Mich. 243, 
 91 N. W. 169, holding mere mailing of check not payment under agreement that 
 payment may be made by check; Dille v. White, 132 Iowa, 333, 10 L.R.A.(N.S.) 
 521, 109 N. W. 909, holding one accepting a bank check or draft as a means 
 of obtaining money pursuant to a contract for a loan, does not assume risk of 
 failure of bank; Goshorn v. People's Nat. Bank, 32 Ind. App. 430, 102 Am. St. 
 Rep. 248, 69 N. E. 185, holding a bank liable to a depositor for money embezzled 
 by cashier, notwithstanding his order by drawing a check, with instructions to 
 cashier to have the money transferred to a savings company. 
 
 Cited in footnotes to State Bank v. Byrne, 21 L. R. A. 753, which holds 
 drawee's acceptance of draft presented by collecting bank not payment; Bank of 
 Antigo v. Union Trust Co. 23 L. R. A. 611, which holds bank takes risk of accept- 
 ing check in payment of note received for collection. 
 
 Cited in notes (9 L.R.A. 263) on acceptance of check not ipso facto payment; 
 (10 L.R.A.(N.S.) 511, 512; 35 L.R.A. (N.S.) 29) on payment by commercial 
 paper. 
 
 7 L. R. A. 445, EXCHANGE BANK v. TUTTLE, 5 N. M. 427, 23 Pac. 241. 
 Effect on note of provision for attorney's! fees. 
 
 Followed in Armijo v. Henry, 14 N. M. 195, 25 L.R.A. (N.S.) 290, 89 Pac. 
 305, holding stipulation for attorneys' fees enforceable. 
 
 Cited in Sylvester Bleckley Co. v. Alewine, 48 S. C. 311, 37 L. R. A. 88, footnote 
 p. 86, 26 S. E. 609, holding promissory note with provision for attorney's fees 
 non-negotiable. 
 
 Cited in footnotes to Dorsey v. Wolff, 18 L. R. A. 428, which holds negotiability 
 not destroyed by stipulation for 10 per cent attorney's fees; Levens v. Briggs, 14 
 L. R. A. 188, which holds agreement for a specified percentage, if note collected 
 by suit, invalid; Oppenheimer v. Farmers' & M. Bank, 33 L. R. A. 767, which 
 holds negotiability of note not affected by stipulation for attorneys' fees in- 
 operative until maturity and dishonor; Pattillo v. Alexander, 29 L. R. A. 616, 
 which sustains payee's guaranty of attorney's fees if note has to be collected by 
 law; Farmers Nat. Bank v. Sutton Mfg. Co. 17 L. R. A. 595, which holds negoti- 
 ability of bill of exchange not defeated by stipulation for attorneys' fees becoming 
 operative after dishonor; Bank of Commerce v. Fuqua, 14 L. R. A. 588, which 
 holds provision in note for attorney's fees valid; but reasonableness of same for 
 court. 
 
 Cited in note (12 L. R. A. 140) on effect on note of stipulation for attorney's 
 fees. 
 
 7 L. R. A. 448, EVANS v. EVANS, 43 Minn. 31, 44 N. W. 524. 
 
 7 L, R. A. 449, POPPLETON v. YAMHILL COUNTY, 18 Or. 377, 23 Pac. 253. 
 Taxation <>i nonresident's property. 
 
 Approved in Savings & Loan Soc. v. Multnomah County, 169 U. S. 426, 42 L. 
 
1325 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 451 
 
 ed. 805, 18 Sup. Ct. Rep. 392, upholding, as to nonresident mortgagee, statute for 
 taxing mortgage and debt secured thereby to mortgagee as real estate and author- 
 izing mortgagor to deduct same; New Orleans v. Stempel, 175 U. S. 319, 44 L. 
 ed. 180, 20 Sup. Ct. Rep. 110, holding proceeds of nonresident's securities kept 
 within state for use, subject to taxation as credits arising from business within 
 etate, at business domicil. 
 
 Cited in Armour Packing Co. v. Augusta, 118 Ga. 553, 98 Am. St. Rep. 128, 
 45 S. E. 424, holding situs of negotiable instruments for purposes of taxation, 
 is at the place where they are actually situated; Marshall Wells Hardware Co. 
 v. Multnomah County, 58 Or. 473, 135 Pac. 150, holding that cash and accounts 
 in possession of branch office of corporation in another state being part of 
 business of this state, are taxable here; State v. Fidelity & D. Co. 35 Tex. Civ. 
 App". 222, 80 S. W. 544, holding the situs of property used and employed for 
 carrying on business of company located in state, is for purposes of taxation 
 in the state. 
 
 Cited in notes (16 L.R.A. 731, 732) as to situs for purpose of taxation of 
 debts evidenced by notes and mortgages; (36 L.R.A. (N.S.) 300) on personal 
 property having taxation situs elsewhere as subject of taxation in state of 
 owner's domicil; (44 L. ed. U. S. 177) on situs for taxation of debts evidenced 
 by notes or mortgages held by agent residing in different state from principal. 
 
 7 L. R. A. 451, KINNAIRD v. STANDARD OIL CO. 89 Ky. 468, 25 Am. St. Rep. 
 
 545, 12 S. W. 937. 
 Liability for injury by nuisance. 
 
 Cited in Brady v. Detroit Steel & Spring Co. 102 Mich. 280, 26 L. R. A. 176, 60 
 N. W. 687, holding one keeping fuel oil liable for damage produced by leakage 
 and foul gases; Beatrice Gas Co. v. Thomas, 41 Neb. 669, 43 Am. St. Rep. 711, 59 
 N. W. 925, holding one liable for collecting on premises matter producing damage 
 to neighbor's well by percolation; Cumberland Teleg. & Teleph. Co. v. United 
 Electric R. Co. 93 Tenn. 516, 27 L. R. A. 242, 29 S. W. 104, holding electric rail- 
 way company liable for producing unnatural electric condition in earth by 
 "leakage," damaging contiguous telephone plant; Cork v. Blossom, 162 Mass. 334, 
 26 L. R. A. 259, 44 Am. St. Rep. 362, 38 N. E. 495, holding one maintaining on 
 premises chimney in danger of falling on adjoining lands liable for improper 
 construction; Nebo Consolidated Coal & Coking Co. v. Lynch, 141 Ky. 713, 133 
 S. W. 763, holding that nuisance is anything done to the hurt or annoyance of 
 lands, tenements or hereditaments of another and for which person maintaining 
 it is liable. 
 
 Cited in notes (8 L. R. A. 787) on damnum absque injuria; (19 L. R. A. 96) 
 on rights in subterranean waters as to fouling subterranean water; (15 L.R.A. 
 (N.S.) 536) on liability for escape of dangerous substance stored on premises; 
 (34 L.R.A. (N.S.) 49) on underground pollution of water; (123 Am. St. Rep. 
 575) on duty and liability of land owners to adjoining proprietors; (10 Eng. 
 Rul. Cas. 243) on right of riparian owner to purity of water. 
 
 Distinguished in Letts v. Kessler, 54 Ohio St. 84, 40 L. R. A. 185, 42 N. E. 765, 
 sustaining right to erect high fence shutting off light and air from house of 
 neighbor. 
 Injury from natural causes. 
 
 Cited in Gilmore v. Royal Salt Co. 84 Kan. 733, 34 L.R.A. (N.S.) 54, 115 
 Pac. 541, holding that landowner has no right to accumulate upon his land 
 refuse matters by which water underlying neighbor's land, and feeding springs 
 thereon, is unfitted for ordinary use. 
 
7 L.R.A. 451] L. R. A. CASES AS AUTHORITIES. 1326 
 
 Cited in note (1 Eng. Rul. Cas. 762) on nonliability for diminution of water 
 on adjoining land by pumping from well on one's own land. 
 
 Distinguished in Livezey v. Schmidt, 96 Ky. 443, 29 S. VV. 25, denying liability 
 for injury to health occasioned by drainage into cellar from natural causes; 
 Barnard v. Sherley, 135 Ind. 564, 24 L. R. A. 574, 41 Am. St. Rep. 454, 34 X. E. 
 600, holding one using water from artesian well not liable for allowing it to flow 
 into natural watercourse; Long v. Louisville & N. R. Co. 128 Ky. 32, 13 L.R.A. 
 (N.S.) 1064, 107 S. W. 203, 16 A. & E. Ann. Cas. 673, holding one causing 
 pollution of waters of stream by reason of burial of dead animal on his own 
 land, is not liable unless circumstances show lack of ordinary prudence. 
 Proof required for abatement. 
 
 Distinguished in Columbia Aver Sav. Fund, S. D. Title & T. Co. v. Prison Com- 
 mission, 92 Fed. 803, holding reasonable certainty of pollution of stream must 
 be shown before injunction will issue. 
 Liability of oil-land lessee >r negligence. 
 
 Cited in footnote to Langenbaugh v. Anderson, 62 L. R. A. 948, which holds 
 that question of negligence in permitting escape of oil, which caught fire, causing 
 destruction of building, should have been submitted to jury. 
 Negligence as affecting action of nuisance. 
 
 Cited in Haynor v. Excelsior Spring Light, P. H. & Water Co. 129 Mo. App. 
 697, 108 S. W. 580, holding in an action for pollution of a stream, manner of 
 throwing refuse in stream is immaterial; Brennan Constr. Co. v. Cumberland, 
 29 App. D. C. 561, 15 L.R.A.(N.S.) 545, 10 A. & E. Ann. Cas. 865, holding one 
 storing quantities of oil on a navigable stream, the escape of which is bound 
 to pollute water, is liable for any injury resulting, regardless of negligence. 
 What are percolating waters. 
 
 Cited in note (67 Am. St. Rep. 672) on what are percolating waters. 
 
 7 L. R. A. 454, McQUERRY v. GILLILAND, 89 Ky. 434, 12 S. W. 1037. 
 Election to take nnder will. 
 
 Cited in Cooke v. Fidelity Trust & Safety Vault Co. 104 Ky. 483, 47 S. W. 325, 
 holding widow accepting provisions of husband's will relinquishes claim to rest 
 of estate. 
 
 Cited in footnote to Tripp v. Nobles, 67 L.R.A. 449, which holds widow offering 
 for probate and undertaking to carry out as administratrix with the will an- 
 nexed, husband's will devising her own land to her for life with remainder over 
 and an additional sum of money estopped to assert her absolute title to the land. 
 
 Cited in notes (12 L.R.A. 227) on election to take under will where rights 
 inconsistent; (4 L.R.A. (N.S.) 1066) as to when beneficiary deemed to have 
 elected to take under will assuming to dispose of his property. 
 Nature of action for specific performance of contract to convey realty. 
 
 Cited in Silver Camp Min. Co. v. Dickert, 31 Mont. 492, 67 L.R.A. 942, 78 
 Pac. 967, 3 A. & E. Ann. Cas. 1000, holding an action for specific performance 
 of contract to convey realty is a proceeding in personam. 
 Jurisdiction over suits affecting foreign realty. 
 
 Cited in Gillen v. Illinois C. R. Co. 137 Ky. 384, 125 S. W. 1047, to the 
 point that action to compel conveyance of land may be brought in this state, 
 although land lies elsewhere; Campbell v. \V. M. Ixilter Lumber Co. 140 Ky. 
 314, 140 Am. St. Rep. 385, 131 S. W. 20, holding that action by landlord against 
 tenant for waste, in violation of contract may be brought wherever tenant may 
 be found: Bowler v. First Nat. Bank, 21 S. D. 460, 130 Am. St. Rep. 725, 113 
 .N. W. 618, holding that state court has jurisdiction of action by trustee in. 
 
1327 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 459 
 
 bankruptcy to vacate deed executed by bankrupt, although land is in another 
 state; Rosenbaum v. Evans, 63 Wash. 510, 115 Pac. 1054, holding that courts 
 of this state have jurisdiction of action to reform deed of land in another state 
 where defendant is within jurisdiction. 
 
 Cited in note (69 L.R.A. 679) on jurisdiction of equity over suits affecting 
 realty in another state or country. 
 
 7 L. R. A. 457, BARTON v. UNION CATTLE CO. 28 Neb. 350, 26 Am. St. Rep. 
 
 340, 44 N. W. 454. 
 Remedies nuainst nnisances. 
 
 Cited in Love v. Prospect Hill Cemetery Asso. 58 Neb. 107, 46 L. R. A. 242, 78 
 X. W. 488, holding private nuisance preventing use of property may be enjoined; 
 Gleason v. Loose-Wiles Cracker & Candy Co. 88 Neb. 89, 129 N. W. 173, holding 
 that private person can obtain injunction against public nuisance only when he 
 suffers special or peculiar injury therefrom. 
 
 Cited in note (7 Eng. Rul. Cas. 485) on liability to indictment or injunction 
 of corporation maintaining nuisance. 
 
 Distinguished in Hill v. Pierson, 45 Neb. 507, 63 N. W. 835, holding right of 
 private person to enjoin public nuisance dependent upon proof of special damage. 
 Pollution of stream. 
 
 Cited in Weston Paper Co. v. Pope, 155 Ind. 401, 58 L. R. A. 902, 57 N. E. 719, 
 holding pollution of stream by discharge of waste therein may be enjoined by one 
 damaged; Abraham v. Fremont, 54 Neb. 395, 74 N. W. 834, upholding right of 
 owner to enjoin continuance of acts causing pollution of stream; Kewanee v. 
 Otley, 204 111. 408, 68 N. E. 388, holding judgment at law for damages not bar 
 to relief in equity for pollution of stream; Braasch v. Cemetery Asso. 69 Xeb. 
 305, 95 X. W. 646, 5 A. & E. Ann. Cas. 132, holding the use of land as a cemetery 
 when such will injure life or health by corrupting the air or contaminating the 
 wells, will be enjoined as a private nuisance; Todd v. York, 3 Xeb. (Unof.) 766, 
 92 X. W. 1040, holding one who befouls or pollutes the waters of a running 
 stream, rendering it unfit for use, may be enjoined at suit of the injured person; 
 Muncie Pulp Co. v. Martin, 164 Ind. 34, 72 N. E. 882, holding the pollution of 
 the waters of a stream by reason of pulp manufacture, constituted a continuing 
 nuisance. 
 
 Cited in footnotes to Strobel v. Kerr Salt Co. 51 L. R, A. 687, which authorizes 
 injunction against diversion of stream for use in salt works, and pollution of 
 stream by return of part; Barrett v. Mt. Greenwood Cemetery Asso. 31 L. R. A. 
 109, which authorizes injunction against connecting city drain with spring 
 brook: Barnard v. Shirley, 24 L. R. A. 568, which refuses to enjoin flow of water 
 from artesian well into natural watercourse; Weston Paper Co. v. Pope, 56 L. R. 
 A. 899, which sustains liability for pollution of stream by discharge from straw- 
 board works though business skilfully conducted. 
 
 Cited in notes (12 L. R. A. 577, 13 L. R. A. 117) on damages for pollution of 
 water of stream; (26 L.R.A. (X.S.) 224) on pollution of water course by stock; 
 (10 Eng. Rul. Cas. 243) on right of riparian owner to purity of water. 
 
 7 L. R. A. 459, FERXALD v. KXOX WOOLEX CO. 82 Me. 48, 19 Atl. 93. 
 Riparian riiilus. 
 
 Cited in Turner v. James Canal Co. 155 Cal. 89, 22 L.R.A.(N.S.) 404, 132 
 Am. St. Rep. 59, 99 Pac. 520, 17 A. A E. Ann. Cas. 823, holding owners upon 
 slough always fed by river have riparian rights; Applegate v. Franklin. 109 
 Mo. App. 301, 84 S. W. 347, holding a body of surface water fed solely from 
 
7 L.R.A. 459] L. R. A. CASES AS AUTHORITIES. 1328 
 
 rain and snowfall, the soil, beneath which belonged to private owners, was not 
 such as to give lateral owners riparian rights. 
 
 Cited in footnotes to Concord Mfg. Co. v. Robertson, 18 L. R. A. 679, as to 
 abutter's rights in public water and land under same; Auburn v. Union Water- 
 power Co. 38 L. R. A. 188, which holds taking 1/15 water supply of great pond 
 for city not unreasonable as to owners of mill privileges; Watuppa Reservoir Co. 
 v. Fall River, 13 L. H. A. 255, which holds right of private persons in great pond 
 not affected by ordinance of 1647; DeWitt v. Bissell, 69 L.R.A. 933, which 
 denies right of owner of property bordering on mill pond to enjoin owner of 
 dam and water privilege from drawing water down to natural level when neces- 
 sary for utilization of the power. 
 
 Cited in notes (9 L. R. A. 812, 50 L. R. A. 746) on right of state and riparian 
 owners to divert water of stream ; ( 22 Am. St. Rep. 202 ) on title of riparian 
 owners on land bounded on navigable waters. 
 
 Distinguished in Heald v. Kennard, 180 Mass. 522, 63 N. E. 4, holding waters 
 of great pond may be used by parties not exceeding rights as riparian owners. 
 When injunction lies. 
 
 Cited in Wilson v. Harrisburg, 107 Me. 218, 77 Atl. 787, holding that con- 
 tinuing nuisance which prevents comfortable use of property creates irreparable 
 injury for which injunction lies. 
 
 Cited in note (10 Eng. Rul. Cas. 313) on mandatory injunction for protection 
 of easement. 
 
 7 L. R. A. 460, BROOKS v. CEDAR BROOK & S. C. RIVER IMPROV. CO. 82 
 
 Me. 17, 17 Am. St. Rep. 459, 19 Atl. 87. 
 Obstruction of navigable stream under legislative authority. 
 
 Cited in Mullen v. Penobscot Log-Driving Co. 90 Me. 567, 38 Atl. 557, holding 
 log company acting under legislative authority not liable for depressing level of 
 navigable stream; Frost v. Washington County R. Co. 96 Me. 86, 59 L. R, A. 79, 
 51 Atl. 806, holding railroad company may under legislative authority close 
 navigable cove by erection of trestle; Barker v. French, 102 Me. 412, 67 Atl. 
 308, holding damages due to overflow of land below dam by reason of reasonable 
 opening of gates of mill dam are "damnum absque injuria;" Durham v. Lisbon 
 Falls Fibre Co. 100 Me. 244, 61 Atl. 177, holding same where injury to the 
 highway below a dam, rightfully constructed, resulted from an increased volume 
 of water at freshet seasons; Northern P. R. Co. v. Slade Lumber Co. 61 Wash. 
 202, 34 L.R.A. (X.S.) 433, 112 Pac. 240 (dissenting opinion), on liability to 
 owner abutting on navigable stream for damages because of erection of draw- 
 bridge over stream. 
 
 Cited in footnote to Payne v. Kansas City, J. & C. B. R. Co. 17 L. R. A. 628, 
 which holds dam to protect land built by legislative authority in abandoned river 
 bed a lawful public improvement. 
 
 Cited in notes (8 L. R, A. 92) on right to soil below high-water mark subject 
 to control; (41 L.R.A. 496) on liability to riparian owner for injuries; (67 
 L.R.A. 845) on right to improve navigability of stream; (20 Am. St. Rep. 136) 
 on riparian rights. 
 
 Disapproved in Kalama Electric Light & P. Co. v. Kalama Driving Co. 48 
 Wash. 615, 22 L.R.A. (N.S.) 643, 125 Am. St. Rep. 948, 94 Pac. 469, holding a 
 riparian owner having electric light plant on river may enjoin one retarding 
 flow of water for purpose of creating artificial freshet to float logs, where such 
 right had not been acquired by condemnation. 
 
1329 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 465 
 
 it lull t of floatage In non-navigable streams. 
 
 Cited in note (35 L.R.A. (N.S.) 833) on right to impound water for float- 
 ing logs. 
 
 Distinguished in Seaboard Air-Line R. Co. v. Sikes, 4 Ga. App. 9, 60 S. E. 
 868, holding, under code, public right of floatage or raftage exists only in streams 
 that are navigable; Kamm v. Normand, 50 Or. 17, 11 L.R.A. (N.S.) 294, 126 
 Am. St. Rep. 698, 91 Pac. 448, holding a stream not a natural highway cannot 
 be made so by artificial means, without right acquired of riparian owners. 
 Damages allowable for taking: of property. 
 
 Cited in Kennebec Water District v. Waterville, 97 Me. 214, 60 L. R. A. 866, 
 54 Atl. 6, holding incidental damages to other property of water company dis- 
 tinct from that taken, not allowable. 
 
 7 L. R. A. 463, THORNDIKE v. CAMDEN, 82 Me. 39, 19 Atl. 95. 
 For what purpose taxes assessed. 
 
 Followed in Clark v. Tremont, 83 Me. 429, 22 Atl. 378, holding town without 
 authority to vote tax to pay claim for which it is not liable. 
 
 Cited in McClelland v. State, 138 Ind. 333, 37 N. E. 1089, holding reimburse- 
 ment of trustee by tax for money advanced to cover loss of school funds without 
 authority; Lovejoy v. Foxcroft, 91 Me. 371, 40 Atl. 141, holding towns cannot 
 assess or borrow money except for public purposes. 
 
 Cited in note (14 L. R. A. 478) on taxation to pay moral obligations. 
 Tax collector's liability for taxes. 
 
 Cited in Topsham v. Blondell, 82 Me. 155, 19 Atl. 93, holding collector charge- 
 able with all taxes committed to him. 
 Mistake In name. 
 
 Cited in Stevenson v. Henkle, 100 Va. 595, 42 S. E. 672, holding immaterial, 
 mistake in name of landowner assessed, not calculated to mislead. 
 Use of public property for private purposes. 
 
 Cited in Biddeford v. Yates, 104 Me. 510, 72 Atl. 335, 15 A. & E. Ann. Gas. 
 1091, on purposes for which public property may be rented. 
 Payment by commercial paper. 
 
 Cited in note (35 L.R.A. (N.S.) 83) on payment by commercial paper under 
 statutes requiring payment in money. 
 
 7 L. R. A. 465, NASHVILLE v. COMER, 88 Tenn. 415, 12 S. W. 1027. 
 Measure of damages for nuisance affecting realty. 
 
 Approved in Doss v. Billington, 98 Tenn. 378, 39 S. W. 717, holding measure 
 of damages for cutting ditches on another's land cost of restoring premises; 
 Chattanooga v. Dowling, 101 Tenn. 346, 47 S. W. 700, upholding right to suc- 
 cessive actions in damages for nuisance caused by discharge of sewage from 
 temporary sewer, as there cannot be an entire recovery in one action; Phelps v. 
 Detroit, 120 Mich. 453, 79 N. W. 640, upholding right to successive actions 
 against city constructing bridge, over railroad tracks to injury of abutting own- 
 er; Doran v. Seattle, 24 Wash. 189, 54 L. R. A. 535, 85 Am. St. Rep. 948, 64 Pac. 
 230, holding one damaged by erection of bulkhead entitled to recover for injury 
 by continuous nuisance; Kansas City Ft. S. & M. R. Co. v. King, 63 Ark. 253, 38 
 S. W. 13, holding one damaged by fence entitled to recover for injury to com- 
 mencement of suit only; Oldenburg v. Oregon Sugar Co. 39 Or. 573, 65 Pac. 869, 
 holding damage sustained from diversion of river by dam limited to injury suf- 
 fered at time dam washed away; Cleveland, C. C. & St. L. R. Co. v. King, 23 Ind. 
 App. 576, 55 N. E. 875, holding that law will not presume that continuous nui- 
 L.R.A. Au. Vol. L 84. 
 
7 L.R.A. 465] L. R. A. CASES AS AUTHORITIES. 1330 
 
 sance is caused by pollution of pond; Cleveland. C. C. & St. L. R. Co. v. Kline. 
 29 Ind. App. 394, 63 N. E. 483, holding permanent damage not recoverable for 
 overflowing land where cause is removable; Pettit v. Grand Junction, 119 Iowa, 
 356, 93 N. W. 381, holding action for abatement of continuing nuisance consisting 
 of location of public buildings in street not barred by statute of limitations. 
 
 Cited in Southern R. Co. v. Poetker, 46 Ind. App. 297, 91 N. E. 610, holding 
 that only such damages as accrued up to time of suit are recoverable in action 
 against railroad for obstructing stream where such nuisance is abatable. 
 
 Cited in footnote to Schlitz Brewing Co. v. Compton, 18 L. R. A. 390, which de- 
 nies right to include damage for injuries, after suit commenced, from continuing 
 nuisance. 
 "When nuisance temporary and permanent. 
 
 Cited in Swift v. Broyles, 115 Ga. 887, 58 L. R. A. 391, 42 S. E. 277, uphold- 
 ing right of recovery for temporary and permanent injuries to freehold caused by 
 escape of acids and gases; Coleman v. Bennett, 111 Tenn. 716. 69 S. W. 734, 
 distinguishing the two classes of injuries to realty and the two rules for measure- 
 ment of damages, one where the injury is temporary and one where permanent; 
 gloss-Sheffield Steel & I. Co. v. Mitchell, 161 Ala. 286, 49 So. 851, holding if 
 proof shows a wrong by which the value of property is affected, permanently 
 and unabatably, damages should be allowed for the whole injury, past and pros- 
 pective; Baltimore & 0. S. W. R. Co. v. Quillen, 34 Ind. App. 338, 107 Am. St. 
 Rep. 183, 72 N. E. 661, holding when cause of injury is of such nature as to be 
 abatable by expenditure of money or labor, the law will not presume the con- 
 tinuance of the wrong; Railway Co. v. Higden, 111 Tenn. 124, 76 S. W. 895, 
 holding evidence of market value of land before and after flooding inadmissible 
 in action to recover damages for wrongful obstruction of water course; Harvey 
 v. Mason City & Ft. D. R. Co. 129 Iowa, 479, 3 L.R.A.(N.S.) 979, 113 Am. St. 
 Rep. 483, 105 X. W. 958, on measure of damage for injury to land. 
 
 Cited in note ( 59 L. R. A. 893 ) on damages for erection of temporary structure. 
 Liability of municipality for nuisance. 
 
 Cited in Knoxville v. Klasing, 111 Tenn. 138, 76 S. W. 814, holding a city 
 after establishment of sewer system will be liable where it knowingly permits 
 it to be negligently constructed or operated. 
 
 Cited in footnotes to Nevins v. Fitchburg, 47 L. R. A. 312, which denies city's 
 right to discharge sewer into tail race ; Hughes v. Auburn, 46 L. R. A. 636, which 
 denies city's liability for disease due to neglect of proper sanitary precautions 
 as to sewer system; Uppington v. New York, 53 L. R. A. 550, which denies city's 
 liability for failure to select best possible route or adopt best possible plan for 
 sewer; Williams v. Greenville, 57 L. R. A. 207, which denies city's liability for 
 sickness, etc., from permitting filth from drainage ditch to flow on adjoining 
 land; Huffmire v. Brooklyn, 48 L. R. A. 421, which sustains city's liability for 
 destruction of oysters by sewage cast on beds. 
 
 Cited in note (61 L. R. A. 712) on duty and liability of municipality with re- 
 spect to drainage. 
 Sufficiency of remedy. 
 
 Cited in Dennis v. Mobile & M. R. Co. 137 Ala. 657, 97 Am. St. Rep. 69, 35 So. 
 30, holding remedy at law adequate for permanent damages to real estate, sus- 
 tained by erection of freight house. 
 
 7 L. R. A. 469, SMITH v. NASHVILLE, 88 Tenn. 464, 12 S. W. 924. 
 City's power to supply citizens with vrater and liiilu. 
 
 Approved in Christensen v. Fremont. 45 Neb. 166, 63 N. W. 364. and Jackson- 
 ville Electric Light Co. v. Jacksonville. 36 Fla. 256, 30 L. R. A. 544, 51 Am. St. 
 
1331 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 474 
 
 Rep. 24, 18 So. G77, both holding power to supply private lights within authoriza- 
 tion to provide for lighting city; Crawfordsville v. Braden, 130 Ind. 161, 14 L. R. 
 A. 273, 30 Am. St. Rep. 214, 28 N. E. 849, holding that private lights may be 
 furnished by city empowered to establish electric light plant; Mayo v. Washing- 
 ton, 122 N. C. 25, 40 L. R. A. 169, 29 S. E. 343 (dissenting opinion) majority 
 holding debt for purchase of electric light plant not "necessary expense" of town; 
 Avery v. Job, 25 Or. 523, 36 Pac. 293, holding that construction and operation of 
 waterworks, general municipal purpose; Huron Waterworks Co. v. Huron, 7 S. 
 D. 27, 30 L. R. A. 857, 58 Am. St. Rep. 817, 62 N. W. 975, holding city cannot dis- 
 pose of waterworks except under legislative authorization; Lake County Water 
 
 6 Light Co. v. Walsh, 160 Ind. 44, 98 Am. St. Rep. 264, 65 N. E. 530, denying 
 right of city to sell waterworks and electric light plant to private corporation. 
 
 Cited in Baker v. Carterswille, 127 Ga. 225, 56 S. E. 249, holding the vending 
 of light and water to private consumers by the city is an incident of the supply 
 of these elements for strictly public use; Overall v. Madisonville, 125 Ky. 691, 12 
 L.R.A. (X.S.) 436, 102 S. W. 278, holding power to do the thing unreservedly 
 gives the city the discretion in the choice of means it will adopt. 
 Exemption from tax. 
 
 Cited in Methodist Episcopal Church, South, Book Agents v. Hinton, 92 Tenn. 
 196, 19 L. R. A. 293, 21 S. W. 321, holding church's publishing plant a charitable 
 institution although sometimes doing secular printing, where total proceeds de- 
 voted to charitable use; State Xat. Bank v. Memphis, 116 Tenn. 648, 7 L.R.A. 
 (X.S.) 666, 94 S. W. 606, 8 A. & E. Ann. Cas. 22, holding there is no implied ex- 
 emption of state bonds from burden of taxation; American Book Co. v. Shelton, 
 117 Tenn. 762, 100 S. W. 725, on taxation of property used exclusively for public 
 purposes. 
 
 Cited in notes (60 L.R.A. 852, 853) as to taxation of municipal waterworks; 
 (1 L.R.A. (N.S.) 766) on taxation of water company belonging to municipality; 
 (132 Am. St. Rep. 327) on exemption from taxation or assessment of lands 
 owned by governmental bodies, or in which 'they have an interest. 
 
 7 L. R. A. 471, KIRCHER v. CONRAD, 9 Mont. 191, 18 Am. St. Rep. 731, 23 
 
 Pac. 74. 
 Review of order urniitiiiu- or refusing^ new trial. 
 
 Cited in Kilby v. Baker, 9 Mont. 399, 24 Pac. 22, and Murray v. Heinze, 17 
 Mont. 359, 42 Pac. 1057, holding order granting or refusing new trial on ground 
 of insufficiency of evidence not reviewable on appeal, when evidence conflicting, 
 unless abuse of discretion shown. 
 "What constitutes warranty. 
 
 Cited in notes (102 Am. St. Rep. 608) on implied warranty of quality; (35 
 L.R.A. (N.S.) 278, 284) on effect of sale with particular description of kind 
 or quality: (37 L.R.A.(N.S.) 79) on warranty by vendor of seeds; (6 Eng. 
 Rul. Cas. 502) on what constitutes warranty. 
 
 7 L. R, A. 474, POSTAL TELEG. CABLE CO. v. LATHROP, 131 111. 575, 19 Am. 
 
 St. Rep. 55, 23 N. E. 583. 
 Appeal; review of findings of fact. 
 
 Cited in La Salle County v. Milligan, 143 111. 329, 32 N. E. 196, holding con- 
 troverted questions of fact, in cases coming to supreme court through appellate 
 court, not subject to review ; Chicago, B. & Q. R. Co. v. Haselwood,. 194 111. 70, 
 62 N. E. 315, holding judgment of affirmance by appellate court implies finding 
 of facts same as trial court, and is conclusive as to such findings; Bernstein v. 
 
7 L.R.A. 474] L. R. A. CASES AS AUTHORITIES. 1332 
 
 Roth, 145 111. 191, 34 N. E. 37, holding opinions of appellate court cannot be 
 resorted to for purpose of ascertaining its findings of fact; Chemical Xat. Bank 
 v. City Bank, 160 U. S. 653, 40 L. ed. 570, 16 Sup. Ct. Rep. 417, holding under 
 Illinois practice act, supreme court will examine evidence to ascertain principles 
 of law involved in controversy; Hahn v. Billings Bros. 18 R. I. 554, 28 Atl. 1027, 
 holding finding of fact by court of common pleas conclusive upon supreme court, 
 if there is any evidence to support it; Wolf Co. v. Western U. Teleg. Co. 24 Pa. 
 Super. Ct. 135, holding where evidence of negligence of company in transmitting 
 message is conflicting the case is for the jury. 
 Teles-rams; extrinsic evidence to show notice of Importance. 
 
 Cited in McPeek v. Western U. Teleg. Co. 107 Iowa, 362, 43 L. R, A. 218, 70 
 Am. St. Rep. 205, 78 N. W. 63, holding where probability of damage not apparent 
 on face of message, extrinsic evidence admissible to show telegraph company 
 had notice of importance; Western U. Teleg. Co. v. Nagle, 11 Tex. Civ. App. 542, 
 32 S. W. 707, holding telegraph company chargeable with notice of character and 
 importance of message partly in cipher, when received from cotton buyer, with 
 request to "rush it" and get answer by wire soon as possible; Joshua L. Bailey 
 & Co. v. Western U. Teleg. Co. 227 Pa. 532, L.R.A.(N.S.) , 76 Atl. 736, 
 holding if it shows that it relates to a commercial or legal transaction of value 
 it is sufficient; Western U. Teleg. Co. v. Potts, 120 Tenn. 44, 19 L.R.A.(N.S.) 
 481, 127 Am. St. Rep. 991, 113 S. W. 789, holding company may learn grounds on 
 which estimate of damages may be based, either from facts communicated to 
 agent dehors the message or from face of message itself; Williamson v. Postal 
 Teleg. Cable Co. 151 X. C. 226, 65 S. E. 974, holding it enough that company knew 
 .damage would probably result; Western U. Teleg. Co. v. Lehman, 105 Md. 449, 
 66 Atl. 266, holding where company from course of business knew sender bought 
 for foreign export and custom was to deliver messages after business hours 
 at residence, it is presumed to know telegram related to a matter of importance; 
 Western U. Teleg. Co. v. Askew, 92 Ark. 135, 122 S. W T . 107, holding where face of 
 message shows it relates to a commercial transaction the company has notice of 
 any direct or actual damages that may result; Western U. Teleg. Co. v. Merritt, 
 55 Fla. 484, 127 Am. St. Rep. 169, 46 So. 1024, holding it not essential that 
 message disclose all the details of the transaction to which it relates, or the par- 
 ticular business intended; Postal Teleg. Cable Co. v. Louisville Cotton Oil Co. 
 136 Ky. 858, 122 S. W."852, holding in case of doubt as to notice of importance 
 complaining party may introduce evidence of facts and circumstances such as 
 throw light upon question. 
 
 Cited in footnote to Western U. Teleg. Co. v. Short, 9 L. R, A. 744, which 
 holds company prima facie liable for failure to deliver telegram. 
 
 Cited in note (10 L. R. A. 515) on interpretation of telegraph messages. 
 Measure of damages for negligent transmission of message. 
 
 Approved in Providence Washington Ins. Co. v. Western U. Teleg. Co. 247 111. 
 90, 30 L.R.A.(N.S.) 1172, 139 Am. St. Rep. 314, 93 N T . E. 134, holding that tele- 
 graph company is liable to insurance company for loss under policy of insur- 
 ance company where because of failure to send message showing important busi- 
 ness transaction on face, such loss was sustained. 
 
 Cited in Western U. Teleg. Co. v. Hart, 62 111. App. 123, holding telegraph 
 company liable for consequences that may be reasonably anticipated from face 
 of message; Fererro v. Western U. Teleg. Co. 9 App. D. C. 471, 35 L. R, A. 552, 
 holding telegraph company liable for consequential damages if message shows 
 business transaction on face; Bierhaus v. Western U. Teleg. Co. 8 Ind. App. 253, 
 34 X. E. 581, holding it unnecessary that telegraph company be apprised of loss 
 
1333 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 478 
 
 that may result from negligent transmission, if message shows it relates to 
 business transaction; Western U. Teleg. Co. v. Church, 3 Neb. (Unof.) 31, 57 
 L.R.A. 909, 90 X. \V. 878, holding substantial damages may be recovered for fail- 
 ure to promptly transmit message summoning physician to "come at once;" West- 
 ern U. Teleg. Co. v. North Packing & Provision Co. 188 111. 370, 52 L.R.A. 277, 
 58 N. E. 958, holding failure of sender's agent to reduce damage, from delay in 
 delivery of message, by doing unauthorized act, not available to telegraph com- 
 pany in mitigation; Western U. Teleg. Co. v. Lehman, 106 Md. 331, 67 Atl. 241, 
 14 A. & E. Ann. Cas. 736, holding a recovery cannot be had for profits sender 
 might have made from re-sale had he received the goods; Illinois Smelting & Ref. 
 Co. v. Western U. Teleg. Co. 146 111. App. 166, holding where message on face did 
 not disclose fact that it related to commercial transaction and company had no 
 other notice of its importance damages due to advanced cost cannot be recovered; 
 Providence Washington Ins. Co. v. Western U. Teleg. Co. 153 111. App. 125, 
 holding that telegraph company is liable for loss sustained by fire insurance 
 company on policy because of failure to deliver message to agent directing can- 
 celation of policy; Western U. Teleg. Co. v. Blackwell Mill & Elevator Co. 24 
 Okla. 543, 138 Am. St. Rep. 893, 103 Pac. 717; Fitch v. Western U. Teleg. Co. 
 350 Mo. App. 157, 130 S. W. 44, holding that telegraph company is only liable 
 for substantial damages where operator has knowledge from message, or from 
 another source, at time of sending, that it related to business matters. 
 
 Cited in footnotes to McPeek v. Western U. Teleg. Co. 43 L. R. A. 214, which 
 holds loss of reward offered for capture of criminal within damages recoverable 
 for failure to deliver telegram; Fererro v. Western U. Teleg. Co. 35 L. R, A. 
 548, which limits damage for mistake in telegram as to price in offer to sell 
 goods, to difference in price; \\estern U. Teleg. Co. v. ^Noitb. Packing & Provision 
 Co. 52 L. R. A. 275, which holds agent purchasing live stock through delay in 
 delivering telegram, not required to resell before communicating with principal, 
 to reduce damages; Western U. Teleg. Co. v. Nye & S. Grain Co. 63 L.R.A. 803, 
 which holds difference in value between market value of corn and the price at 
 which it could have been sold the measure of damages for negligent delay of tele- 
 gram; Hays v. Western U. Teleg. Co. 67 L.R.A. 841, which holds that change in 
 telegram so as to quote price of mules at ten dollars per head less than market 
 price resulting in sendee's ordering purchase of designated number, renders tele- 
 graph company liable for a difference between price paid, and that stated in 
 telegram. 
 
 Cited in note (117 Am. St. Rep. 290, 292, 295, 299) on elements of damages 
 recoverable for failure to transmit and deliver telegrams. 
 
 7 L. R. A. 478, DWYER v. GULF, C. & S. F. R. CO. 75 Tex. 572, 16 Am. St. 
 Rep. 926, 12 S. W. 1001. 
 
 Adhered to on third appeal of case reported in 84 Tex. 198, 19 S. W. 470. 
 Penalty imposed on carrier. 
 
 Cited in Dillingham v. Fischl, 1 Tex. Civ. App. 551, 21 S. W. 554, and Gulf, 
 C. & S. F. R. Co. v. Nelson, 4 Tex. Civ. App. 347, 23 S. W. 732, holding statute 
 imposing penalty on carrier refusing to deliver freight upon tender of charges 
 not invalid as regulation of commerce; Ft. Worth A D. C. R. Co. v. Lillard, 4 
 Tex. App. Civ. Cas. (Willson) 124, holding statute imposing penalty on rail- 
 road company for overcharge on interstate shipment not unconstitutional; S. A. 
 & A. P. R. Co. v. Wilson, 4 Tex. App. Civ. Cas. (Willson) 570, holding legislature 
 without power to impose penalty upon railroad companies only, tor failure to 
 pay servants within specified time; Gulf, C. & S. F. R. Co. v. Nelson, 4 Tex. 
 Civ. App. 349, 23 S. W. 732, holding in suit to recover statutory penalty plaintiff 
 
7 L.R.A. 478] L. R. A. CASES AS AUTHORITIES. 1334 
 
 must prove a case clearly within terms of the law; Gulf, C. & S. F. R. Co. v. 
 Loonie, 84 Tex. 261, 19 S. W. 385, raising but not deciding question whether 
 suit for statutory penalty for withholding freight and overcharge, applicable 
 to interstate shipment; Harrill Bros. v. Southern R. Co. 144 N. C. 541, 57 S. E. 
 383, holding a statute imposing a penalty upon common carriers for refusal to 
 deliver freight is not invalid as an interference with interstate commerce; Walker 
 v. Southern R. Co. 137 N. C. 168, 49 S. E. 84, holding same where statute allows 
 a penalty for failure to ship goods within specified time. 
 
 Cited in footnote to Clegg v. Southern R. Co. 65 L.R.A. 717, which holds 
 carrier refusing to deliver freight because of refusal of excessive charge liable 
 for ensuing loss, though the one making the demand had not obtained the bill 
 of lading nor an order for delivery. 
 
 Cited in note (20 L.R.A. (X.S.) 128) on constitutionality of legislation affect- 
 ing amount of liability or penalty for delay in delivery, or for destruction, of 
 freight. 
 Police i-funliit ions of commerce. 
 
 Cited in Texas & P. R. Co. v. Clark, 4 Tex. Civ. App. 614, 23 S. W. 698, holding 
 states may make police regulations relative to commerce within proper limita- 
 tions; Missouri, K. & T. R. Co. v. Simonson, 64 Kan. 810, 57 L. R. A. 768, 91 
 Am. St. Rep. 248, 68 Pac. 653, holding statute making specification of weights 
 in bills of lading conclusive evidence against carrier a police regulation; Houston 
 & T. C. R. Co. v. Mayes, 36 Tex. Civ. App. 607, 83 S. W. 53, holding a statute 
 making it the duty, upon reasonable notice to furnish cars for carriage of freight, 
 is a proper exercise of police power. 
 
 Cited in notes (26 Am. St. Rep. 579; 27 Am. St. Rep. 559, 567) on state 
 regulation of interstate commerce. 
 Ratification by carrier. 
 
 Cited in Gulf, C. & S. F. R. Co. v. Nelson, 4 Tex. Civ. App. 348, 23 S. W. 732, 
 and Dillingham v. Fischl, 1 Tex. Civ. App. 552, 21 S. W. 554, holding penalty for 
 refusal to deliver freight on payment or tender not recoverable unless carrier 
 executed bill of lading or ratified it; Miller v. Texas & N. O. R. Co. 83 Tex. 521, 
 18 S. W. 954, holding ratification not presumed as against connecting carrier 
 from fact that it received and hauled car and collected charges; Pittsburg, C. C. 
 & St. L. R, Co. v. Viers, 113 Ky. 535, 68 S. W. 469, holding connecting carrier, 
 not limiting liability, receives shipment under terms of contract with initial 
 carrier. 
 
 Cited in note (10 L. R. A. 418) on liability of connecting carrier. 
 Limitation of liability by contract. 
 
 Cited in Armstrong v. Galveston, H. & S. A. R. Co. 92 Tex. 121, 46 S. W. 33, 
 and Gulf, C. & S. F. R. Co. v. Eddins, 7 Tex. Civ. App. 125. 26 S. W. 161, holding 
 statute forbidding contracts limiting time to present claim or sue does not regu- 
 late interstate commerce; Pittmann v. Pacific Exp. Co. 24 Tex. Civ. App. 598, 
 59 S. W. 949, holding statute prohibiting common carriers from limiting their 
 liability in bill of lading applicable to contracts for interstate carriage; Ohio & 
 M. R. Co. v. Tabor, 98 Ky. 510, 34 L. R. A. 689, 36 S. W. 18, holding constitu- 
 tional provision that carrier shall not contract for relief from common-law lia- 
 bility not in conflict with Federal Constitution; Galveston, H. & S. A. R. Co. v. 
 Fales, 33 Tex. Civ. App. 460, 77 S. W. 234, holding statutes prohibiting limita- 
 tions of common carrier liability as it existed at the common law, is valid as 
 applied to contracts for interstate transportation, of property ; International & 
 G. N. R. Co. v. Vandeventer, 48 Tex. Civ. App. 369, 107 S. W. 560. on application 
 of statutes to business of carriers of state- 
 
1335 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 481 
 
 Production of bill of lading:* 
 
 Cited in note (38 L. R. A. 361) on necessity of production of bill of lading. 
 Liability of connecting: carrier*. 
 
 Cited in Atchison, T. & S. F. R. Co. v. Smythe, 55 Tex. Civ. App. 562, 119 
 S. W. 892, holding burden on terminal carrier to show that damage did not occur 
 on its line, where goods were received by initial carrier in good condition. 
 
 7 L. R. A. 481, WALLING v. BURGESS, 122 Ind. 299, 22 N. E. 419, 23 N. E. 1076. 
 Power of surviving: partner. 
 
 Cited in Riley v. Carter, 76 Md. 594, 19 L. R. A. 494, 35 Am. St. Rep. 443, 
 25 Atl. 667, holding surviving partner may execute assignment for benefit of 
 creditors in conformity with insolvent laws; Holladay v. Land & River Improv. 
 Co. 6 C. C. A. 571, 18 U. S. App. 308, 57 Fed. 785, to point that conveyance by 
 surviving partner passes equitable title. 
 
 Cited in notes (7 L. R. A. 791) on duty of surviving partner; (28 L. R. A. 133) 
 on disposition of -real estate by surviving partner; (24 Am. St. Rep. 186) on 
 power of surviving partner. 
 Rigrhts of heirs. 
 
 Cited in Bollenbacher v. First Nat. Bank, 8 Ind. App. 18, 35 N. E. 403, and 
 Valentine v. Wysor, 123 Ind. 52, 7 L. R. A. 794, 23 N. E. 1076, holding rights 
 of heirs of deceased partner attach only to the surplus remaining after payment 
 of partnership debts. 
 
 Cited in note (27 L, R, A. 345) on claims of heirs must yield to partnership 
 claims. 
 Estoppel from claiming: Interest. 
 
 Cited in Wilmore v. Stetler, 137 Ind. 137, 45 Am. St. Rep. 169, 36 N. E. 856, 
 holding acceptance by heirs of proceeds of land sold as belonging to the dece- 
 dent estops them from claiming their two-thirds interest therein; Axton v. 
 Carter, 141 Ind. 676, 39 N. E. 546, holding heirs accepting proceeds of sale of 
 land made to administrator through third party ratify sale and cannot avoid it. 
 Error In overruling; demnrrers. 
 
 Cited in Bradshaw v. Van Winkle, 133 Ind. 136, 32 N. E. 877; Schmidt v. 
 Draper, 137 Ind. 253, 36 N. E. 709 ; Louisville, N. A. & C. R. Co. v. Bodenschatz- 
 Bedford Stone Co. 141 Ind. 258, 39 N. E. 703, holding error in overruling de- 
 murrer to answer immaterial where record shows ruling was harmless; Haas v. 
 Evansville, 20 Ind. App. 490, 50 N. E. 46, holding erroneous overruling of de- 
 murrer to answer immaterial where appellant failed to prove his complaint in 
 court below; Indianapolis, D. & W. R. Co. v. Center Twp. 143 Ind. 74, 40 N. E. 
 134, holding error in overruling demurrer to answer setting up statute of limita- 
 tions immaterial where record shows final judgment correct, and not based on 
 any finding as to such statute. 
 Special nndins: or special verdict curing error. 
 
 Cited in Louisville, N. A. & C. R. Co. v. Downey, 18 Ind. App. 145, 47 N. E. 
 494, and Tulley v. Citizens' State Bank, 18 Ind. App. 242, 47 N. E. 850, holding 
 erroneous overruling of demurrer harmless where there was special verdict or 
 special finding; Runner v. Scott, 150 Ind. 442, 50 N. E. 479, holding error in 
 overruling demurrer immaterial when there is special finding; Smith v. Wells 
 Mfg. Co. 148 Ind. 335, 46 N. E. 1000, holding error in overruling demurrer to 
 answer harmless where special finding is in accordance with facts alleged in 
 subsequent answer; Watson V. Tindall, 150 Ind. 488, 50 N. E. 468, holding 
 erroneous ruling on demurrer to answer harmless where there is special finding, 
 and facts found could have been proved under the general denial; Terre Haute 
 
7 L.R.A. 481] L. R. A. CASES AS AUTHORITIES. 1336 
 
 Brewing Co. v. Hartman, 19 Ind. App. 600, 49 N. E. 864, holding sufficiency of 
 answer will not be considered where correct statement of the law may be made 
 on facts specially found; Beasley v. Phillips, 20 Ind. App. 188, 50 N. E. 488, 
 holding court may look to special finding or special verdict to determine whether 
 ruling on demurrer was prejudicial; Gilliland v. Jones, 144 Ind. 670, 55 Am. St. 
 Rep. 210, 43 N. E. 939, holding court may look to special finding to ascertain if 
 ruling on demurrer to' answer is harmless. 
 Harmless error. 
 
 Cited in Terre Haute Electric Co. v. Watson, 33 Ind. App. 126, 70 N. E. 993, 
 holding the overruling of a challenge to a juror for cause, where juror is dis- 
 missed by peremptory challenge, and party does not exhaust his peremptory chal- 
 lenges, is not ground for reversal. 
 
 7 L. R. A. 485, DAVIS v. FOGLE, 124 Ind. 41, 23 N. E. 860. 
 Wills; effect of subsequent adoption of child. 
 
 Cited in Hilpire v. Claude, 109 Iowa, 166, 46 L. R. A. 174, 77 Am. St. Rep. 
 524, 80 N. W. 332, holding under statute making birth of child to testator operate 
 as revocation of prior will, subsequent adoption of child does not have such 
 effect; Re Comassi, 107 Cal. 7, 28 L. R. A. 416, 40 Pac. 15, holding subsequent 
 remarriage and adoption of stranger in blood do not operate to revoke will of 
 married woman. 
 
 Cited in footnotes to Flannigan v. Howard, 59 L. R. A. 664, which holds de- 
 vises and legacies in will ratably abated by adoption of child after its execution; 
 Re Comassi, 28 L. R A. 414, which holds will not revoked by adopting stranger 
 in blood; Glascott v. Bragg, 56 L. R. A. 258, which holds will in favor of third 
 person revoked by marriage and adoption of child. 
 Revocation of Trill It-y subsequent marriage or divorce. 
 
 Cited in Jones's Estate, 211 Pa. 386, 69 L.R.A. 952, 107 Am. St. Rep. 581, 60 
 Atl. 915, 3 A. & E. Ann. Gas. 221, holding a bequest to a woman, as "wife" is 
 revoked by implication by reason of an absolute divorce procured from testator 
 at wife's instance. 
 
 Cited in footnotes to Re Hulett, 34 L. R. A. 384, which holds will not revoked 
 by marriage alone; Ingersoll v. Hopkins, 40 L. R. A. 191, which holds will 
 giving testator's property to woman made executrix revoked by testator's subse- 
 quent marriage to her; Re Kelly, 56 L. R, A. 754, which holds woman's will not 
 revoked by subsequent marriage; Roane v. Hollingshead, 17 L. R. A. 592, which 
 holds rule that will of feme sole revoked by marriage not in force where in- 
 capacity removed by statute; Re Comassi, 28 L. R. A. 414, which holds married 
 woman's will not revoked by subsequent marriage after becoming widow; Re 
 Teopfer, 67 L.R.A. 315, which holds antenuptial will revoked by testator's mar- 
 riage. 
 
 Cited in notes (10 L. R. A. 57) on presumptive revocation of will; (10 L. R. A. 
 94) on revocation of joint will. 
 Manner of effecting- revocation. 
 
 Cited in footnotes to Billington v. Jones, 56 L. R. A. 654, which holds will 
 revoked by writing on it statement that it is void, stating that it is killed, and 
 filing it away; Cutler v. Cutler, 57 L. R. A. 209, which holds will revoked by 
 adopting mutilations by vermin. 
 
 Cited in note (130 Am. St. Rep. 632) on implied revocation of will from 
 change in condition and circumstances of testator other than marriage or birth 
 of issue. 
 
1337 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 489- 
 
 Rig-lit of adopted cbild to take by descent or will. 
 
 died in Re Gregory, 15 Misc. 409, 37 X. Y. Supp. 925, holding inheritance of 
 adopted child subject to testamentary power of adopting parent. 
 
 Cited in note (30 L.R.A. (N.S.) 917) as to whether terms "child," "children," 
 "issue," etc., in statutes of distribution include adopted children. 
 
 Distinguished in Markover v. Krauss, 132 Ind. 304, 17 L. R. A. 810, 31 N. E. 
 1047, holding children jointly adopted take by descent from deceased parent same 
 property rights as natural children; Bray v. Miles, 23 Ind. App. 443, 54 N. E. 
 446, holding under will providing share of deceased devisee shall go to children, 
 if there be any, adopted child takes share of adopted parent. 
 Estoppel to contest will. 
 
 Cited in footnote to Hudnall v. Ham, 48 L. R. A. 557, which holds widow pre- 
 cluded from contesting husband's will by antenuptial contract agreeing to re- 
 lease all interest in his estate. 
 
 7 L. R. A. 489, CULVER v. MARKS, 122 Ind. 554, 17 Am. St. Rep. 377, 23 N. E. 
 
 1086. 
 Checks and drafts; when presentment necessary. 
 
 Cited in Industrial Trust, Title & Sav. Co. v. Weakley, 103 Ala. 464, 49 Am. 
 St. Rep. 45, 15 So. 854, holding unreasonable delay in presentment of check 
 covered by deposit releases drawer. 
 
 Distinguished in Industrial Trust, Title & Sav. Co. v. Weakley, 103 Ala. 465, 
 49 Am. St. Rep. 45, 15 So. 854, holding insufficiency of deposit does not excuse 
 prompt presentment of check where drawer has arranged for overdraft; Citizens 
 Nat. Bank v. Third Nat. Bank, 19 Ind. App. 75, 49 X. E. 171, holding failure of 
 bona fide indorsee of draft to inquire into drawer's right does not excuse collect- 
 ing bank's failure to present. 
 Checks; statute of limitations. 
 
 Cited in note (22 L. R. A. 110) on statute of limitation as applicable to bank 
 checks. 
 Certified check.; drawer's liability. 
 
 Cited in Born v. First Xat. Bank, 123 Ind. 84, 7 L. R. A. 445, 18 Am. St. Rep. 
 312, 24 N. E. 173, holding drawer of certified check remains liable until payment. 
 Books of account as evidence. 
 
 Cited in Bastrop State Bank v. Levy, 106 La. 589, 31 So. 164, holding book 
 entries of bank deposits, accompanied by proof of handwriting and death of 
 bookkeeper, competent; Cleland v. Applegate, 8 Ind. App. 501, 35 N. E. 1108, 
 holding entries made by disinterested person in course of business competent 
 evidence of transactions; Wilber v. Scherer, 13 Ind. App. 430, 41 N. E. 837, 
 holding permitting witness to read from account book items to which he had 
 previously testified, not reversible error: Harmon v. Decker, 41 Or. 595, 93 Am. 
 St. Rep. 748, 68 Pac. 11, holding merchant's account books not evidence of 
 loans to others; Place v. Baugher, 159 Ind. 235, 64 N. E. 852, holding book into 
 which measurements of saw logs were transcribed the same day on which re- 
 ceived admissible; International & G. N. R. Co. v. Startz, 42 Tex. Civ. App. 94, 94 
 S. W. 207, holding evidence of weights and prices of cattle consigned to broker 
 as taken from entries taken from sales books of broker was admissible in action 
 against a carrier for damage to cattle; Coppes v. Union Nat. Sav. & L. Asso. 33 
 Ind. App. 374, 69 N. E. 702, holding contents of books of account of private cor- 
 poration are not admissible in evidence in a manner different from that in which 
 such books of natural persons are received: Johnson v. Zimmerman. 42 Ind. App. 
 172, 84 X. E. 541, on admissibility of account book entries in evidence; Brown 
 
7 L.R.A. 489] L. R. A. CASES AS AUTHORITIES. 1338 
 
 v. United States, 73 C. C. A. 187, 142 Fed. 6, on adinissibility of bank account 
 books in evidence. 
 
 Cited in notes (53 L.R.A. 529) on use of person's books of account as evidence 
 on issues between other parties; (138 Am. St. Rep. 451, 468) on admissibility of 
 evidence of books of account. 
 
 Distinguished in Fleming v. Yost, 137 Ind. 97, 36 N. E. 705, holding book 
 entries of payments, contemporaneously made, admissible to show consideration 
 for conveyance. 
 When transcript admissible. 
 
 Cited in Texas & P. Coal Co. v. Lawson, 10 Tex. Civ. App. 501, 31 S. W. 843, 
 holding where originals in court, transcript of account made by competent book- 
 keeper, admissible. 
 
 Evidence of expert as to conclusions deduced from intricate accounts or 
 calculations. 
 
 Cited in Guarantee Co. of N. A. v. Mutual Bldg. & L. Asso. 57 111. App. 263; 
 Chicago, St. L. & P. R. Co. v. Wolcott, 141 Ind. 278, 50 Am. St. Rep. 320, 39 
 N. E. 451, holding accountant may testify as to contents of voluminous and 
 complicated books from abstract made from originals ; Bee Pub. Co. v. World Pub. 
 Co. 59 Neb. 722, 82 N. W. 28, holding testimony of decrease of business based 
 on examination of books, improper without their production; Shover v. Myrick, 
 4 Ind. App. 16, 30 N. E. 207, holding expert may testify as to expectancy, using 
 standard mortality tables. 
 Secondary evidence. 
 
 Cited in New La Junta & L. Canal Co. v. Kreybill, 17 Colo. App. 36, 67 Pac. 
 1026, holding oral testimony as to contents of voluminous documents admissible, 
 where documents open to inspection affording ample opportunity for cross- 
 examination of witness. 
 
 7 L. R. A. 495, THOMPSON v. REASONER, 122 Ind. 454, 24 N. E. 223, 
 Enforceability of judgment nntil reversed. 
 
 Cited in Lake Erie & W. R. Co. v. Smith, 61 Fed. 887, to point judgment ren- 
 dered by court in exercise of its jurisdiction justifies acts enforcing it until it is 
 reversed or set aside; Boos v. Morgan, 140 Ind. 207, 39 N. E. 919, holding en- 
 forcement of judgment rendered by court in exercise of its jurisdiction will not 
 be enjoined unless reversed or set aside. 
 
 Cited in note (45 L. R. A. 801) on liability for tort in doing acts authorized 
 by judgment afterwards reversed. 
 Restitution on reversal of judgment. 
 
 Cited in Chicago & S. E. R, Co. v. Adams, 26 Ind. App. 445, 59 N. E. 1087, 
 holding law raises obligation against one benefited by judgment thereafter re- 
 versed to make restitution; Hess v. Deppen, 125 Ky. 430, 101 S. W. 362, 15 A. 
 
 6 E. Ann. Cas. 670, holding an action for damages cannot be sustained upon the 
 reversal of a judgment for acts done pursuant to it as for a tort. 
 
 Cited in note (96 Am. St. Rep. 145) on restitution on reversal of judgments. 
 Drains and sewers. 
 
 Cited in notes (60 L.R.A. 223) on procedure for the establishment of drains 
 and sewers, as to wrongful acts; (6 L.R.A. (N.S.) 1149) on joinder of parties 
 in suit to restrain pollution of water course. 
 
 7 L. R. A. 498, RAPP v. REEHLIXG, 124 Ind. 36, 23 N. E. 777. 
 Contracts made on Sunday. 
 
 Cited in Bryan v. Watson, 127 Ind. 44, 11 L. R. A. 64, 26 N. E. 666, holding 
 
1339 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 500 
 
 (subscription to liquidate church indebtedness, made on Sunday, valid; Donovan 
 v. McCarty, 155 Mass. 546, 30 N. E. 221, holding assignment of property in trust 
 by severely injured woman, made on Sunday, not illegal. 
 
 Cited in footnotes to First M. E. Church v. Donnell, 46 L.R.A. 858, which 
 sustains subscription to church indebtedness made on Sunday; Rodman v. Robin- 
 son, 65 L.R.A. 682, which sustains Sunday contract for purchase and sale of 
 real estate. 
 
 Cited in note (14 L. R. A. 195) on Sunday labor. 
 Wills; construction. 
 
 Cited in Hawes v. Kepley, 28 Ind. App. 311, 62 N. E. 720, holding words cannot 
 be supplied to make will conform with testator's supposed intention. 
 
 7 L. R. A. 500, HUNN v. MICHIGAN C. R, CO. 78 Mich. 513, 44 N. W. 502. 
 Duty of master in management of business. 
 
 Cited in Doyle v. Toledo S. & M. R. Co. 127 Mich. 98, 54 L. R. A. 463, 89 Am. 
 St. Rep. 456. 86 N. W. 524, holding railroad company liable for defective con- 
 dition of another's roof over spur track where brakemen required to go for cars; 
 Card v. Eddy, 129 Mo. 529, 36 L. R. A. 812, 28 S. W. 979 (dissenting opinion), 
 majority holding manner of delivering messages to railroad employees not part 
 of master's duty; Schwarzschild & S. Co. v. Weeks, 72 Kan. 196, 4 L.R.A. (N.S.) 
 519, 83 Pac. 406, holding master owes his servant a positive duty to use rea- 
 sonable precautions to protect him from injury; Lellis v. Michigan C. R. Co. 
 1 24 Mich. 42, 70 L.R.A. 600, 82 X. W. 828, holding railroad company not liable 
 for injury to switchman caused by reason of negligence of inspector in failing 
 to inspect car where company provided a competent inspector. 
 
 Cited in footnote to St. Louis, A. & T. R. Co. v. Triplett, 11 L. R. A. 773, which 
 holds master's duty to protect repair track not fulfilled by adopting rule suf- 
 ficient if faithfully observed by employees. 
 
 Cited in notes (8 L. R, A. 819) as to duty of master to instruct servant in use 
 of dangerous machinery; (12 L. R. A. 97) as to master's liability for negligence 
 of coservant acting under authority; (54 L. R. A. 92, 94, 173) on vice principal- 
 ship as determined with reference to the character of the act which caused the 
 injury. 
 Who are fellow servants. 
 
 Cited in Missouri, K. & T. R, Co. v. Elliott, 42 C. C. A. 201, 102 Fed. 108; Clyde 
 v. Richmond & D. R. Co. 69 Fed. 678; Baltimore & O. R. Co. v. Camp, 13 C. C. A. 
 240, 31 U. S. App. 213, 65 Fed. 960; Louisville, N. A. & C. R. Co. v. Heck, 151 
 Ind. 314, 50 X. E. 988, all holding train despatchei not fellow servant with 
 trainman; Bloyd v. St. Louis & S. F. R. Co. 58 Ark. 71, 41 Am. St. Rep. 88, 22 S. W. 
 1089, holding foreman of bridge gang not fellow servant with workmen under 
 him: Lellis v. Michigan C. R. Co. 124 Mich. 42, 82 N. W. 828, holding inspector 
 of car loads of lumber received from other roads fellow servant with switchman; 
 Anderson v. Michigan C. R. Co. 107 Mich. 612, 65 N. W. 585 (dissenting opin- 
 ion), majority holding brakeman not fellow servant with section man; Wallace 
 v. Boston & M. R. Co. 72 N. H. 516, 57 Atl. 913, holding train despatcher not 
 fellow servant of brakeman; Morrison v. San Pedro, L. A. & S. L. R. Co. 32 
 Utah, 95, 88 Pac. 998, holding test to be whether negligent act causing injury 
 was breach of positive duty owed by master to the injured servant; Edge v. 
 Southwest Missouri Electric R. Co. 206 Mo. 492, 104 S. W. 90, holding a train 
 despatcher empowered to give orders as to sidetracking cars meeting others rep- 
 resents the master and is i ot a fellow servant with conductor and moterman. 
 
 Cited in footnotes to Baltimore & 0. R. Co. v. An.): -.vs, 17 L. R. A. 190, which 
 holds conductor and engineer fellow servants of brakeman on other train; Clark 
 
7 L.R.A. 500] L. R. A. CASES AS AUTHORITIES. 1340 
 
 v. Pennsylvania Co. 17 L. R. A. 811, which holds section boss of one gang and 
 member of another gang fellow servants; Palmer v. Michigan C. R. Co. 17 L. R. 
 A. 637, which holds assistant road master not fellow servant of gang of men 
 working under him; Fisher v. Oregon Short Line & U. N. R. Co. 16 L. R. A. 519, 
 which holds section foreman and conductor not fellow servants; Daniel v. 
 Cheasapeake & O. R. Co. 16 L. R. A. 383, which holds conductor and brakeman 
 on different trains not fellow servants; Wischam v. Rickards, 10 L. R. A. 97, 
 which holds factory employee assisting servants of one delivering flywheel, 
 servant of latter. 
 
 Cited in notes (51 L. R. A. 521, 578, 606, 613) as to vice principalship con- 
 sidered with reference to the superior rank of a negligent servant; (25 L. R. A. 
 388, 390, 392) as to train despatcher and telegraph operator as fellow servants 
 of trainmen; (18 L.R.A. 828) as to superior employees; (75 Am. St. Rep. 596, 
 624, 638, 639) on who is a vice principal. 
 
 Distinguished in Beesley v. F. W. Wheeler & Co. 103 Mich. 210, 27 L. R. A. 270. 
 61 N. W. 658, holding riveter and carpenters under same superintendent to be 
 fellow servants; Schroeder v. Flint & P. M. R. Co. 103 Mich. 217, 29 L. R. A. 323, 
 50 Am. St. Rep. 354, 61 N. W. 663, holding foreman of gang unloading and level- 
 ing dirt on railroad, a fellow servant of member thereof. 
 Effect of contributory negligence of fellow servant. 
 
 Cited in Noble v. Bessemer S. S. Co. 127 Mich. 113, 54 L. R. A. 460, footnote p. 
 456, 89 Am. St. Rep. 461, 86 N. W. 520, holding master's liability from defective 
 tool not defeated by fellow servant's knowledge of the defect; McGinn v. Mc- 
 Cormick, 109 La. 402, 33 So. 382, holding master liable for injury due to com- 
 bined negligence of master and fellow servant; Lutz v. Atlantic & P. R. Co. 6 X. 
 M. 529, 16 L. R. A. 833, 30 Pac. 912 (dissenting opinion), majority holding 
 master not liable for injury proximately caused by negligence of fellow servant, 
 although itself negligent in part; La Barre v. Grand Trunk W. R. Co. 133 Mich. 
 197, 94 N. W. 735, holding an assistant roadmaster rendered the master liable 
 where negligent; Howard v. Beldenville Lumber Co. 129 Wis. 113, 108 X. \V. 
 48, hold-ing contributory act of a coemployee is not a defense where injury 
 resulted from piece of wood falling through a hole negligently left open by 
 employer; Lockwood v. Tennant, 137 Mich. 308, 100 N. W. 562, holding an 
 employee injured without fault on his part, may recover against a master who 
 is negligent, even though negligence of a fellow-servant contributed to the injury ; 
 Gordon v. Chicago, R. I. & P. R. Co. 129 Iowa, 753, 106 N. W. 177, holding 
 right of recovery exists in favor of servant against a master whose negligence 
 combines with negligence of a fellow-servant; La Barre v. Grand Trunk W. R. 
 Co. 133 Mich. 198, 94 N. W. 735, on contributory negligence of fellow-servant 
 as affecting right of recovery. 
 
 Cited in footnotes to Farrell v. Eastern Machisery Co. 68 L.R.A. 239, which 
 sustains master's liability for death of employee through providing unfit material 
 for staging though staging was constructed by another employee with power to 
 reject unfit materials; Towne v. United Electric G. & P. Co. 70 L.R.A. 214, 
 which holds corporation maintaining poles to support electric wires which fur- 
 nishes ordinary pike poles in good condition for handling such poles not liable 
 for injury to employee caused by fellow-servant's use of dull pike pole in taking 
 down pole. 
 
 Cited in notes (16 L.R.A. 819, 822) as to relation of proximate cause doc- 
 trine to rule of liability of master for injuries to his servant caused by combined 
 negligence of himself and a fellow servant; (4 L.R.A. (N.S.) 517) on negligence 
 of fellow servant concurring with failure to establish or enforce proper rules 
 for conduct of business. 
 
1341 L. E. A. CASES AS AUTHORITIES. [7 L.R.A. 500 
 
 Effect of customary violation of rules. 
 
 Cited in Fluhrer v. Lake Shore & M. S. R. Co. 121 Mich. 217, 80 N. W. 24, and 
 Nichols v. Chicago & W. M. R. Co. 125 Mich. 397, 84 X. W. 470, both holding 
 violation of employer's rules defeats recovery, unless its violation is so universal 
 and notorious that an inference of employer's approval of such violation arises; 
 Fluhrer v. Lake Shore & M. S. R. Co. 124 Mich. 483, 83 N. W. 149, holding 
 violation of employer's rule no bar to recovery for injuries received thereby, 
 where rule is customarily violated; Wright v. Southern P. Co. 14 Utah, 397. 40 
 Pac. 374, holding evidence of custom to uncouple cars while in motion admissible 
 to rebut claim of negligence in disregarding rules forbidding same; Ashman v. 
 Flint & P. M. R. Co. 90 Mich. 576, 51 N. W. 645, and Eastman v. Lake Shore & 
 M. S. R. Co. 101 Mich. 602, 60 N. W. 309, both holding negligent nature of step- 
 ping between cars to uncouple them while in motion question for jury; Grand 
 v. Michigan C. R. Co. 83 Mich. 576, 11 L. R. A. 407, 47 N. W. 837 (dissenting 
 opinion), majority holding railroad not liable under statutes requiring blocked 
 switches, for death of brakeman entering between cars in motion to uncouple 
 them knowing that they are passing over unblocked "split" switch; De Cair v. 
 Manistee & G. R. Co. 133 Mich. 581, 95 N. W. 726, holding custom of employees 
 of road, in coupling cars, to go in front of moving cars was admissible in evi- 
 dence; Burch v. Southern P. Co. 32 Nev. 128, 104 Pac. 225, Ann. Gas. 1912B, 
 1166; Johnson v. Burke, 167 Mich. 354, 132 N. W. 1017, holding that rule 
 habitually violated by employees, with employer's knowledge may be treated 
 as abrogated. 
 
 Cited in note (43 L. R. A. 367) as to duties of master and servant with re- 
 gard to rules promulgated for the safe conduct of a business. 
 
 Distinguished in Ball v. Hauser, 129 Mich. 399, 89 N. W. 49, holding peril as- 
 sumed by employee voluntarily riding on elevator after warning that he did so 
 at his own risk though employees were occasionally permitted to ride. 
 Mortuary tables and scientific books as evidence. 
 
 Cited in Grouse v. Chicago & N. W. R. Co. 102 Wis. 208, 78 N. W. 446, and 
 Joliet v. Blower, 155 111. 417, 40 N. E. 619, holding mortuary tables admissible 
 as tending to show life expectancy; Nelson v. Lake Shore & M. S. R. Co. 104 
 Mich. 589, 62 N. W. 993, holding mortality tables conclusive of life expectancy 
 in absence of evidence to show greater or less probability of life; Vicksburg 
 R. Power & Mfg. Co. v. White, 82 Miss. 472, 34 So. 331, holding mortuary tables 
 made up by actuaries from a list of selected risks are not admissible where it 
 is not shown deceased persons belonged to same class. 
 
 Cited in note (40 L. R. A. 555) as to scientific books and treatises as evidence. 
 Appellate jurisdiction over damages. 
 
 Cited in Retan v. Lake Shore & M. S. R. Co. 94 Mich. 157, 53 N. W. 1094, re- 
 fusing to disturb verdict for excessive damages, where nothing tending to 
 prejudice defendant's rights or to inflame jury, is shown; Boggess v. Metropolitan 
 Street R. Co. 118 Mo. 341, 24 S. W. 210 (concurring opinion), refusing reversal 
 for inadequacy of damages, where evidence conflicting and prejudice not apparent 
 from inadequacy; Burdict v. Missouri P. R. Co. 123 Mo. 250, 26 L. R. A. 400, 45 
 Am. St. Rep. 528, 27 S. W. 453 (dissenting opinion), majority holding that 
 part should remit excess of damages, and take affirmance for residue or submit 
 to new trial; McDonald v. Champion Iron & Steel Co. 140 Mich. 413, 103 X. W. 
 829, holding a verdict which has no evidence upon which to base it is erroneous 
 and error may be assigned upon it without making motion for a new trial. 
 
 Cited in note (26 L. R. A. 395) as to power of appellate court to interfere with 
 verdict or excessive damages. 
 
 Distinguished in Brockmiller v. Industrial Works. 148 Mich. 649, 112 X. W. 
 
7 L.R.A. 500] L. R. A. CASES AS AUTHORITIES. 1342 
 
 688, holding question of excessiveness of verdict, where there was evidence to 
 support it will not be reviewed unless motion for new trial is made and denied 
 by trial court. 
 Evidence of niaintiff's property. 
 
 Distinguished in Arndt v. Bourke, 120 Mich. 266, 79 N. W. 191, holding admis- 
 sion of evidence of plaintiff's lack of means harmless, where admitted solely in 
 rebuttal of evidence of counsel's contingent fee, and not considered in estimating 
 damages. 
 Of habits of Industry in death action. 
 
 Cited in Shall v. Detroit & M. K. Co. 152 Mich. 471, 116 N. W. 432, holding 
 habits of industry of deceased are proper evidence of damage in action for death. 
 Damages recoverable. 
 
 Cited in Richmond v. Chicago & W. M. R. Co. 87 Mich. 391, 49 N. W. 621, 
 holding that mother and sister may recover for the negligent killing of decedent 
 according to pecuniary injury suffered. 
 Effect npon action of survival after injury. 
 
 Cited in Sweetland v. Chicago & G. T. R. Co. 117 Mich. 348, 43 L. R. A. 575, 75 
 N. W. 1066 (concurring opinion), holding action for decedent's pain and suffer- 
 ing not within act for survival of actions for negligent injuries to person. 
 
 7 L. R. A. 507, PINKERTON v. VERBERG, 78 Mich. 573, 18 Am. St. Rep. 473, 
 
 44 N. W. 579. 
 Arrest without warrant. 
 
 Cited in Re Kellan, 55 Kan. 702, 41 Pac. 960, holding officer cannot arrest for 
 minor offenses not committed in his presence or view; Klein v. Pollard, 149 
 Mich. 204, 10 L.R.A.(N.S.) 1010, 119 Am. St. Rep. 670, 112 N. W. 717, holding 
 a police officer is not justified in arresting a woman quietly walking the streets 
 of a city at night simply because she emerges from a disreputable saloon; People 
 v. Stark, 2 111. C. C. 165, holding offense must be committed in presence of officer 
 making the arrest to justify arrest without a warrant. 
 
 Cited in notes (51 L.R.A. 210) arrest* without warrant not made on view; 
 (13 L.R.A. (N.S.) 881) on right of officer to arrest without a warrant one 
 verbally abusing him or interfering in performance of duty; (84 Am. St. Rep. 
 683, 688, 692, 694) on right of policeman to make arrest. 
 
 Distinguished in North v. People, 139 111. 105, 28 N. E. 966, holding officer may 
 arrest for misdemeanor committed in his presence if only remedy of stopping or 
 redressing offense. 
 Infringing 1 right of locomotion. 
 
 Cited in St. Louis v. Roche, 128 Mo. 547, 31 S. W. 915, holding ordinance for- 
 bidding one to knowingly associate with reputed thieves, burglars, or gamblers 
 invalid; St. Louis v. Gloner, 210 Mo. 510, 15 L.R.A.(N.S.) 976, 124 Am. St. Rep. 
 750, 109 S. W. 30, holding a person may stand for a period of two hours each day 
 upon a particular street in a populous city, if he conducts himself in a peaceful 
 orderly manner. 
 Powers of municipal corporations as to disorderly persons. 
 
 Distinguished in Re Stegenga. 133 Mich. 62, 61 L.R.A. 765, 94 N. W. 385, holding 
 that municipal corporation under charter authority to punish disorderly persons, 
 may provide for punishment of loiterers in streets and barrooms; Re Stegenga, 
 133 Mich. 62, 61 L.R.A. 763, 94 N. W. 385, holding ordinance valid which declares 
 disorderly and punishes as such, one loitering in any barroom or wandering about 
 streets without lawful means of support. 
 
1343 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 511 
 
 Evidence of specific Instances to prove character. 
 
 Cited in note (14 L.R.A. (N.S.) 756) on evidence of specific instances to prove 
 character. 
 False imprisonment. 
 
 Cited in note (67 Am. St. Rep. 417) on false imprisonment. 
 
 7 L. R. A. 511, COFRODE v. GARTNER, 79 Mich. 332, 44 N. W. 623. 
 Jurisdiction in case of nonresidents. 
 
 Cited in Eingartner v. Illinois Steel Co. 94 Wis. 77, 34 L. R. A. 506, 59 Am. St. 
 Rep. 859, 68 N. W. 664, holding resident of one state may sue resident of same 
 state on transitory cause of action arising therein, in courts of other state; 
 Sleight v. Swanson, 127 Mich. 439, 86 N. W. 1010, holding foreign plaintiff may 
 sue foreign defendant before justice of peace; State Bank v. Maxson, 123 Mich. 
 253, 81 Am. St. Rep. 196, 82 N. W. 32, holding nonresident may sue personally 
 served nonresident, on foreign contract, in county where debtor's property found; 
 Bradbury v. Chicago, R. I. & P. R. Co. 149 Iowa, 59, 40 L.R.A.(N.S) 684, 128 
 X. W. 1, holding that cause of action arising in foreign country may be main- 
 tained in our courts, though jurisdiction may be declined; Daniels v. Detroit, 
 G. H. & M. R. Co. 163 Mich. 473, 128 N. W. 797, holding that action against 
 carrier for negligent injury, sustained in foreign jurisdiction, may be maintained 
 here; Southern Pacific Co. v. Dusablon, 48 Tex. Civ. App. 207, 106 S. W. 766, 
 on actions brought under laws of another state; Olympia Min. & Mill. Co. v. 
 Kerns, 64 Wash. 550, 117 Pac. 260, holding that it is discretionary for courts 
 to refuse to assume jurisdiction of action between nonresidents upon contract 
 to be performed in another state, where title to land only is involved. 
 
 Cited in footnote to Robertson v. Chicago, St. P. M. & O. R. Co. 66 L.R.A. 
 919, which holds widow residing in one state of resident of such state who was 
 negligently killed in another state entitled to benefit of statute of latter state 
 making negligent party liable therefor and requiring amount of recovery to be 
 paid widow. 
 
 Cited in notes (59 Am. St. Rep. 874) on right to prosecute transitory causes 
 of action in other jurisdiction; (85 Am. St. Rep. 926) on jurisdiction of foreign 
 corporations; (70 L.R.A. 536, 537, 538, 539, 543) on right of nonresidents to 
 sue foreign corporations. 
 Attachment snlts. 
 
 Cited in Newland v. Reilly, 85 Mich. 154, 48 N. W. 544, holding foreign plain- 
 tiff in action against foreign defendant may garnishee resident debtor of latter; 
 Tootle v. Coleman, 57 L. R. A. 124, 46 C. C. A. 136, 107 Fed. 45, holding creditor 
 may garnish resident debtor of foreign defendant, though garnished claim pay- 
 able out of state. 
 
 Cited in note (67 L.R.A. 218) as to where debt garnishable. 
 
 Distinguished in Reimers v. Seatco Mfg. Co. 30 L. R. A. 367, 17 C. C. A. 232, 
 37 U. S. App. 426, 70 Fed. 577, holding foreign creditor cannot garnish claim of 
 foreign debtor against foreign garnishee, such claim being payable out of state. 
 Appearance of defendant. 
 
 Cited in Ferguson v. Oliver, 99 Mich. 162, 41 Am. St. Rep. 593, 58 N. W. 43, 
 holding jurisdiction of Canadian court on general appearance of defendant not 
 lost by dismissing defense for insufficiency of pleading: People use of Wipfler 
 v. Fidelity & D. Co. 163 Mich. 100, 127 N. W. 765, holding that foreign corpo- 
 ration may consent to acceptance of service in state where it is transacting 
 business. 
 
7 L.R.A. 511] L. E. A. CASES AS AUTHORITIES. 1344 
 
 Privilege; service of process. 
 
 Cited in Hoffman v. Bay County Circuit Judge, 113 Mich. 110, 38 L. R. A. 664, 
 7 Am. St. Rep. 458, 71 N. W. 480, holding attorney exempt from service of proc- 
 ess while attending court in another county. 
 Equal privileges. 
 
 Cited in note (14 L. R. A. 583) on constitutional equality of pi Alleges, im- 
 munities, and protection. 
 Nature of motion for change of venae. 
 
 Cited in Lyle v. Cass Circuit Judge, 157 Mich. 40, 121 N. W. 300. holding a 
 motion for a change of venue invokes discretionary judicial action. 
 
 7 L. R. A. 517, POWERS v. JEUDEVINE, 61 Vt. 587, 18 Atl. 778. 
 Devise, when absolute. 
 
 Cited in Meacham v. Graham, 98 Tenn. 206, 39 S. W. 12, holding where ex- 
 pression in will doubtful, devise deemed absolute; Podaril v. Clark. 118 Iowa, 
 274, 91 N. W. 1091 (dissenting opinion), majority holding estate lev life with 
 privilege of sale or conveyance during lifetime not a fee. 
 
 Cited in footnotes to Williams v. Baptist Church, 54 L. R. A. 427, which holds 
 absolute gift, not trust, created by bequest to church and "suggesting" as to ap- 
 plication; Jewell v. Louisville Trust Co. 53 L. R. A. 377, which denies creation 
 of precatory trust by will of merchant expressing desire for retention on liberal 
 terms of specified person in employ of firm of which testator a partner. 
 
 Cited -in notes (10 L.R.A. 757) as to when absolute estate vests under devise; 
 (37 L.R.A.(N.S.) 666) on creation of trust by precatory words in will. 
 
 Disapproved in Hoefliger v. Hoefliger,, 132 Iowa, 577, 107 N. W. 312, holding 
 the giving of the widow full control during her natural life did not take any- 
 thing from the estate devised. 
 Absolute devise, when cut down by subsequent terms. 
 
 Cited in Mulvane v. Rude, 146 Ind. 482, 45 N. E. 659, holding gift over of 
 portion of absolute devise remaining at first taker's death, void for repugnancy; 
 Meacham v. Graham, 98 Tenn. 208, 39 S. W. 12, holding limitation inconsistent 
 with absolute power of disposition previously given in will void. 
 
 Cited in footnotes to Snider v. Baer, 13 L. R. A. 359, which holds fee not cut 
 down to life estate by clause giving legatee sole control during lifetime; Morgan 
 v. Halsey, 36 L. R. A. 716, which holds power of appointment of property to 
 testatrix's daughter in any manner she may deem proper limited by subsequent 
 clauses of will. 
 
 Cited in note (139 Am. St. Rep. 89) on devise or bequest for life with power 
 of disposal. 
 
 7 L. R. A. 524, STEELE v. SIOUX VALLEY STATE BANK, 79 Iowa, 339, 13 
 Am. St. Rep. 370, 44 N. W. 564. 
 
 Grantee in quitclaim as affected by equities. 
 
 Cited in Hannan v. Seidentopf, 113 Iowa, 662, 86 N. W. 44; Knapp v. Paine, 
 95 Iowa, 67, 63 N. W. 575; Young v. Charnquist, 114 Iowa, 125, 86 N. W. 205, 
 holding grantee under quitclaim deed not entitled to protection against prior 
 equities; Parker v. Randolph, 5 S. D. 553, 29 L. R. A. 35, 59 N. W. 722, holding 
 grantee in a quitclaim deed not a bona fide purchaser; United States v. Cali- 
 fornia & O. Land Co. 1 C. C. A. 337, 7 U. S. App. 128, 49 Fed. 503. to point 
 grantee under quitclaim deed chargeable with constructive notice of actual right 
 and title of his grantor, and may not rely on visible possession or recorded muni- 
 ments of title; Wickham v. Henthorn, 91 Iowa, 244, 59 N. W. 276, holding un- 
 recorded conveyance takes precedence over subsequent quitclaim deed duly i\.- 
 
1345 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 527 
 
 corded; Minneapolis & St. !. R. Co. v. Chicago, M. & St. P. R. Co. 116 Iowa, 68S, 
 88 N. W. 1082, holding corporation taking quitclaim deed not protected against 
 prior deed; Fowler v. Will, 19 S. D. 134, 117 Am. St. Rep. 938, 102 N. \Y. .V.is. 
 8 A. & E. Ann. Cas. 1093, holding a quitclaim deed comprehends no more than 
 is actually owned by the party executing it, and as to interest already gone, 
 Is of no effect; /Etna L. In?. Co. v. Stryker, 38 Ind. App. 331, 78 N. K. iM.~>. 
 holding the quitclaim deed serves to pass only the present interest of the grantor. 
 
 Cited in notes (29 L.R.A. 46) on protection of quitclaim purchaser; (105 
 Am. St. Rep. 859) on effect of quitclaim deeds under registration laws. 
 
 Disapproved in Schott v. Dosh, 49 Neb. 194, 59 Am. St. Rep. 531, 68 N. W. 346, 
 holding purchaser in good faith and without notice under recorded quitclaim deed 
 takes precedence of grantee under prior unrecorded conveyance. 
 Dower designates widow'* interest. 
 
 Cited in Ditson v. Ditson, 85 Iowa, 282, 52 N. W. 203, to point word "dower" 
 still used in Iowa to designate interest which law gives widow in lands of hus- 
 band. 
 
 7 L. R. A. 527, DONNEGAN v. EARHARDT, 119 N. Y. 468, 23 X. E. 1051. 
 Liability of railroad to fence. 
 
 Cited in Terre Haute & I. R. Co. v. Williams, 172 111. 382, 64 Am. St. Rep. 
 44, 50 N. E. 116, holding railroad liable for death of engineer caused by collision 
 with cattle straying on track through defective fence; Atchison, T. & S. F. R. 
 Co. v. Reesman, 23 L. R. A. 771, 9 C. C. A. 24, 19 U. S. 596, 60 Fed. 375, holding 
 employee injured by derailment of train caused by failure of statutory duty to 
 fence can recover of railroad; Dickson v. Omaha & St. L. R. Co. 124 Mo. 149, 
 25 L. R. A. 324, 46 Am. St. Rep. 429, 27 S. W. 476, holding railroad liable for 
 death of engineer due to collision with bull straying onto track through defective 
 fence; Robertson v. New York, 7 Misc. 646, 28 N. Y. Supp. 13, holding railroad 
 company not obliged to fence track to keep people from falling from embank- 
 ment upon it: Mcmlizabal v. New York C. & H. R. R. Co. 89 App. Div. 388, 85 
 N. Y. Supp. 896, holding railroad company liable for injury of employee by 
 derailment of car caused by cow on track; International & G. N. R. Co. v. Rich- 
 mond, 28 Tex. Civ. App. 516. 67 S. W. 1029, holding railroad liable for killing 
 stock of third person straying through opening in fence left by agreement with 
 landowner: International & G. N. R. Co. v. Thompson, 34 Tex. Civ. App. 69, 77 
 S. W. 439, holding where injuries result from collision between train and cattle 
 on track, the failure to fence is sufficient evidence of negligence to take case to 
 jury; Lee v. Brooklyn Heights R. Co. 97 App. Div. 112, 89 N. Y. Supp. 652, 
 holding under statute failure to erect and maintain fences of sufficient height 
 and strength rendered the company liable for resulting damages; Bateman v. 
 Rutland R. Co. 126 App. Div. 512, 110 N. Y. Supp. 506, holding where the 
 duty to fence and maintain cattle guards is made absolute by statute it is 
 immaterial that animals trespass upon track. 
 
 Cited in footnote to Atchison, T. & S. F. R. Co. v. Reesman, 23 L. R. A. 768, 
 which holds company liable for injury to brakeman from derailment of train 
 due to failure to maintain fences. 
 
 Cited in notes (8 L. R. A. 139) on liability of railroad company for death or 
 injury to cattle by failure to fence; (25 L. R. A. 320) on obligation of railroad 
 company to employees as to fencing track; (12 L. R. A. 181) on duty of rail- 
 road company to fence its tracks; (37 L. ed. U. S. 729; 9 L.R.A.(N.S.) 344. 
 364) on duty of railroad to fence right of way; (20 Am. St. Rep. 162) on 
 duty of railroad company as to cattle on track. 
 L.R.A. Au. Vol. I. sr>. 
 
7 L.R.A. 527] L. R. A. CASES AS AUTHORITIES. 1346 
 
 Distinguished in Carper v. Kimball, 35 L. R. A. 141, 23 C. C. A. 675, 42 IL 
 S. App. 282, 78 Fed. 100, holding recovery not allowable for death of employee 
 due to collision with cattle on track, when statute did not require whole line to 
 be fenced; Wabash R. Co. v. Gaull, 116 111. App. 445, holding no liability results 
 from failure to fence by reason of injuries to one driving upon highway and 
 injured through his horses becoming frightened at embankments lawfully con- 
 structed; Bateman v. Rutland R. Co. 54 Misc. 315, 105 N. Y. Supp. 970, holding 
 in absence of absolute liability clause in connection with failure to provide 
 cattle guards, no liability resulted from injury to animals straying upon tracks 
 over cattle guards, not wilfully or recklessly injured; Nielsen v. Chicago. B. & 
 Q. R. Co. 109 C. C. A. 225, 187 Fed. 395, holding that railroad is not liable 
 for injury to fireman caused by derailment of locomotive by cattle which strayed 
 upon unfenced railroad. 
 Liability for faulty construction and repair. 
 
 Cited in Mulvaney v. Brooklyn City R. Co. 1 Misc. 426, 21 N. Y. Supp. 427, 
 holding railroad liable for injury to brakeman due to improperly constructed 
 curve of track; True v. Lehigh Valley R. Co. 22 App. Div. 591, 48 N. Y. Supp. 86, 
 holding duty of railroad to inspect bluff from side of which shale was known to 
 slide upon track; Lynch v. New York C. & H. R. R. Co. 8 App. Div. 462, 40 N. 
 Y. Supp. 775, holding railroad liable for injury to passenger due to loaded stone 
 car running down gravity road built partly on quarry and partly on railroad; 
 Terre Haute & I. R. Co. v. Williams, 69 111. App. 394, holding railroad liable 
 for death of engineer wrecked by cattle coining on track, where there was no 
 cattle guard; Pitcher v. Lennon, 16 Misc. 610, 38 N. Y. Supp. 1007, holding owner 
 of building liable for death due to its collapse by reason of construction in 
 violation of statute. 
 
 Cited in note (22 Am. St. Rep. 788) on duty of carrier as to construction 
 of roadbed. 
 
 Distinguished in Hebert v. Delaware & H. Canal Co. 41 N. Y. S. R. 863, 16 
 N. Y. Supp. 561, holding railroad not liable for death of yard man on engine 
 colliding with loaded wagon in yard; Richmond v. New York C. & H. R. R. Co. 
 
 8 App. Div. 386, 40 N. Y. Supp. 812, holding railroad not liable for injury to 
 employee due to wire stretched across its track without its consent. 
 
 7 L. R. A. 529, HALL v. PILLSBURY, 43 Minn. 33, 19 Am. St. Rep. 209, 44 
 
 N. W. 673. 
 Title to grain in warehouse. 
 
 Cited in Herrick v. Barnes, 78 Minn. 478, 81 N. W. 526, holding bank has 
 title to grain for which storage tickets were issued to it, and which was with- 
 drawn with, other wheat by warehousemen and sold; Jackson v. Sevatson, 79 
 Minn. 278, 82 N. W. 634, holding depositors of wheat in warehouse may main- 
 tain action against third person for conversion; Rice v. Madelia Farmers Ware- 
 house Co. 78 Minn. 124, 80 N. W. 853, to point relation between depositor of 
 grain and warehousemen that of bailor and bailee, and title to grain whether 
 kept separate or commingled remains in depositor; State v. Northwestern Ele- 
 vator Co. 101 Minn. 194, 112 N. W. 68, holding it is owned by receipt holders 
 as tenants in common; Gordon v. Freeman, 112 Minn. 487, 128 N. W. 834, 
 holding that possession of warehouse receipt is constructive possession of prop^ 
 erty; Re Canadian P. R. Co. 17 Ont. Pr. Rep. 279, holding that railroad is 
 bailee of wheat deposited in its elevator with other grain of like grade. 
 
 Cited in notes (25 L.R.A. (N.S.) 781) on right of one leaving property in 
 warehouse as against latter's vendees or creditors; (94 Am. St. Rep. 221) on 
 bailment of cereals in warehouse; (101 Am. St. Rep. 918) on confusion of goods. 
 
3347 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 533 
 
 Right to store- ur:iiii In own warehouse. 
 
 Cited in footnote to Central Elevator Co. v. People, 43 L. R. A. 658, which 
 denies right of licensed warehouseman to deal in and store grain in own licensed 
 warehouse. 
 Liability of warehouseman. 
 
 Cited in footnotes to Moses v. Teetors, 57 L. R. A. 267, which denies ware- 
 houseman's liability to owner for destruction by fire of wheat stored at owner's 
 risk; State v. Cowdery, 48 L. R. A. 92, which holds flax stored in warehouse 
 "grain" within statute regulating warehousemen. 
 
 Cited in note (136 Am. St. Rep. 239) on duty of warehousemen in care of 
 property. 
 Public warehouseman. 
 
 Cited in footnote to State v. Chicago, M. & St. P. R. Co. 38 L. R. A. 672, 
 which holds void statute requiring carriers to turn over to public warehouseman 
 all property not called for within twenty days. 
 
 7 L. R. A. 533, ROCHE v. WATERS, 72 Md. 264, 19 Atl. 535. 
 Payment of taxes by life tenant. 
 
 Cited in. notes (32 L.R.A. 745) on duty of life tenant to pay taxes; (10 
 L.R.A. (N.S.) 344) as to whether life tenant on remainderman must bear cost 
 of public improvement. 
 Jurisdiction of chancery. 
 
 Cited in Coleman v. Virginia Stave & Heading Co. 112 Va. 76, 70 S. E. 545, 
 holding that purchaser under proceedings to sell infant's lands is required to 
 see to regularity of proceedings upon which jurisdiction depends. 
 
 Cited in footnotes to Sloane v. Martin, 28 L. R. A. 347, which denies necessity 
 of actual service on infants in suit for sale of land in which they have interest; 
 Warren v. Union Bank, 43 L. R. A. 256, which holds void, mortgage of infant's 
 property under order of court for sole purpose of paying unauthorized debt in- 
 curred by guardian; Richards v. East Tennessee, V. & G. R. Co. 45 L. R. A. 712, 
 which sustains power of court of chancery to order sale of entire interest of 
 minors in land on ex parte petition in term time; Pitts v. Rhode Island Hospital 
 Trust Co. 48 L. R. A. 783, which authorizes allowance necessary for infant's 
 maintenance out of trust fund provided for his education. 
 
 Cited in note (120 Am. St. Rep. 658) on inherent equity jurisdiction to 
 decree sale of land of minors. 
 Statutes validating or invalidating; judgment. 
 
 Cited in Willis v. Hodson, 79 Md. 331, 29 Atl. 604, holding legislature without 
 power to make a judgment rendered without jurisdiction valid and binding; 
 Re Christiansen, 17 Utah, 428, 41 L. R. A. 509, 70 Am. St. Rep. 794, 53 Pac. 
 1003, holding legislature cannot validate void judgments; McManus v. Hornaday, 
 124 Iowa, 271, 104 Am. St. Rep. 316, 100 N. W. 33, 2 A. & E. Ann. Cas. 237, 
 holding the controversy having been once adjudicated in due form of law. tlie 
 legislature is without power by special act to nullify it; Halming v. Forrester, 
 87 Xeb. 441, 127 N. W. 373, holding that curative act which attempts to take 
 away vested property rights is void; United States v. Aakervik, 180 Fed. 146, 
 holding time having wholly elapsed in which government could apply for re- 
 hearing or new trial suit to vacate order admitting to citizenship does not lie 
 under a later naturalization act. 
 
7 L.R.A. 537] L. R. A. CASES AS AUTHORITIES. 1348 
 
 7 L. R. A. 537, SIEGEL v. CHICAGO TRUST & SAV. BANK, 131 111. 569, 19 Am. 
 
 St. Rep. 51, 23 N. E. 417. 
 jVegotiability of note. 
 
 Cited in Biegler v. Merchants' Lean & T. Co. 164 111. 203, 45 N. E. 512, Af- 
 firming 62 111. App. 569, holding recital to destroy negotiability of note must 
 make promise uncertain or conditional ; Buchanan v. Wren, 10 Tex. Civ. App. 
 566, 30 S. W. 1077, holding statement of consideration not disclosing fraud or 
 illegality does not affect validity or negotiability of note; Buchanan v. Wren, 
 10 Tex. Civ. App. 568, 30 S. W. 1077, holding note given for rent for unexpired 
 term negotiable; Brooke v. Struthers, 110 Mich. 576, 35 L. R. A. 543, 68 X. W. 
 272, holding note secured by mortgage not negotiable, where mortgage provides 
 whole debt becomes due on mortgagor's failure to pay taxes and assessments; 
 Huber v. Brown, 148 111. App. 410, holding fact that purchaser knew loan was 
 building loan and would be paid as building progressed is no defense in a suit 
 on note; Zollman v. Jackson Trust & Sav. Bank, 141 111. App. 217, holding such 
 fact does not affect negotiability of note; First Nat. Bank v. Lightner, 74 Kan. 
 741, 8 L.R.A.(N.S.) 234, 118 Am: St. Rep. 353, 88 Pac. 59, holding statement of 
 consideration though it appears as for an executory contract does not destroy 
 negotiability of instrument; Zollman v. Jackson Trust Sav. Bank, 238 111. 
 293, 32 L.R.A.(N.S.) 863, 87 X. E. 297, holding a recital upon a note to destroy 
 its negotiability, must be of a kind that in some respects qualifies, or makes un- 
 certain or conditional the promise; First Nat. Bank v. Badham, 86 S. C. 207, 
 138 Am. St. Rep. 1043, 68 S. E. 536, to the point that statement of consideration 
 in note does not affect negotiability. 
 
 Cited in footnote to Gordon v. Anderson, 12 L. R. A. 483, which holds note 
 payable to certain person, "et al. or order' non-negotiable. 
 
 Cited in notes (8 L.R.A. 394) as to requisites to negotiability; (30 L.R.A. 
 (X.S. ) 40) on reference to extrinsic agreement as affecting negotiability; (125 
 Am. St. Rep. 196) on agreements and conditions destroying negotiability. 
 
 Distinguished in Hovorka v. Hemmer, 108 111. App. 445, holding instrument 
 payable upon publication of an advertisement, not negotiable. 
 \oii.-e as letting in defenses. 
 
 Cited in Fox v. Citizens' Bank & T. Co. (Tenn. Ch. App.) 35 L. R. A. 681, 
 37 S. W. 1102, holding note taken before maturity or failure of consideration 
 free from equities, although recitals show consideration was future and con- 
 tingent; Weber v. Rosenheim, 37 111. App. 73, holding notice that consideration 
 of note is executory does not prevent indorsee for value before maturity from 
 laking it free from defenses because consideration afterward fails; United States 
 ISTaL Bank v. Floss, 38 Or. 72, 84 Am. St. Rep. 752, 62 Pac. 751, holding breach 
 of executory contract forming consideration for note not a defense against in- 
 dorsee for value before maturity with notice of contract, but not of its breach ; 
 Webber v. Indiana Xat. Bank, 49 111. App. 343, holding notice of fact exciting 
 .inquiry not notice of ultimate fact to assignee of note before maturity; 
 Bank v. Hatcher, 151 X. C. 362, 134 Am. St. Rep. 989, 66 S. E. 308, holding even 
 though statement of the transaction which gives rise to the negotiable instrument 
 is contained on its face the indorsee is not affected with notice of infirmity where 
 at is taken from payee without recourse. 
 Consideration for note. 
 
 Cited in Merchants' Bank v. Dunlop, 9 Manitoba L. Rep. 626, on forbear- 
 ance as constituting consideration for promise to pay. 
 
 Cited in note (24 Am. St. Rep. 428) on consideration for promissory note. 
 
L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 548 
 
 7 L. R. A. 539, REDMOND v. TARBORO, 100 X. C. 122, 10 S. E. 845. 
 ]:<! u:ili(.v of taxation. 
 
 Cited in Wiley v. Salisbury, 111 N. C. 400, 16 S. E. 542, holding all taxes 
 must be laid by one uniform rule; United Brethren v. Forsyth County, 115 N. 
 C. 493, 20 S. E. 626, holding credits and secured notes belonging to religious 
 society whose income is used exclusively for educational, religious, and charit- 
 able purposes, exempt. 
 
 Cited in note (8 L. R. A. 271) on taxation ad valorem. 
 Taxable property. 
 
 Cited in Wood v. Edenton, 106 N. C. 153, 10 S. E. 854, holding notes, bonds, 
 and solvent credits owned by a resident against residents and nonresidents taxable 
 by municipality; Wiley v. Salisbury, 111 N. C. 404, 16 S. E. 542, holding stock 
 in corporation doing business outside of town, though owned by its residents,. 
 is taxable only at its principal place of business; Winston v. Beeson, 135 X. C. 
 277, 65 L. R. A. 170, 47 S. E. 457, holding dealing in trading stamps not taxable 
 as a gift enterprise. 
 
 Cited in footnote to Hamilton v. Wilson, 48 L. R. A. 238, which holds void, 
 statute for taxation of personal judgments with specified exceptions. 
 Adopted construction of statute. 
 
 Cited in Harper v. Pinkston, 112 N. C. 301, 17 S. E. 161, holding statute 
 adopted from that of another state presumed to have been enacted with knowl- 
 edge of judicial construction there given it. 
 Construction of limitations on taxation. 
 
 Cited in Collie v. Franklin County, 145 N. C. 181, 59 S. E. 44, holding pro- 
 hibition of constitution against doubling the state tax for county expenses, 
 is restricted to taxation for county purposes, strictly speaking. 
 Meaning: of "property." 
 
 Cited in Worth v. Wright, 122 N. C. 336, 29 S. E. 361, holding license tax on 
 sale of pianos, property which may be collected by state treasurer; State ex rel. 
 Louisiana Improv. Co. v. Board of Assessors, 111 La. 995, 36 So. 91, holding 
 municipal bonds embraced by statute taxing "all property, rights and credits." 
 
 7 L. R. A. 548, MOOSE v. CARSON, 104 N. C. 431, 17 Am. St. Rep. 681, 10 S, 
 
 E. 689. 
 Dedication of street. 
 
 Cited in McClellan v. Weston, 49 W. Va. 679, 55 L. R. A. 906, 39 S. E. 670, 
 holding adverse possession cannot be maintained against city of any portion of 
 street duly laid out and platted under statute; State v. Higgs, 126 X. C. 1022, 
 48 L. R. A. 449, 35 S. E. 473, holding indictment of abutting owner under 
 ordinance requiring removal of signs, not sustained, if sign does not obstruct 
 passage on street; Smith v. Goldsboro, 121 N. C. 354, 28 S. E. 479, holding; 
 vendor of lots on street subsequently taken into city, estopped from denying to 
 city right to furnish purchasers light and water; State v. Fisher, 117 N. C. 7-40, 
 23 S. E. 158, holding entry on street in addition to city under license by city, 
 does not operate as acceptance of street by city; Hughes v. Clark, 134 X. C. 460, 
 46 S. E. 95G, and Davis v. Morris, 132 N. C. 436, 43 S. E. 950, holding sale of 
 lots with reference to street, dedication thereof as between parties; Price v. 
 Stratton, 45 Fla. 543. 33 So. 644; Bailliere v. Atlantic Shingle, Cooperage & 
 Veneer Co. 150 N. C. 637, 64 S. E. 754, holding sale of lots in accordance and 
 recognition of a map or plat in which streets are laid out constitutes a dedication 
 of the streets; Milliken v. Denny, 141 N. C. 227, 53 S. E. 867, holding dedication 
 
7 L.R.A. 548] L. R. A. CASES AS AUTHORITIES. 1350 
 
 may be either by express language, reservation or by conduct showing an intention 
 to dedicate; State v. Godwin, 145 X. C. 4G5, 122 Am. St. Rep. 467, 59 S. E. 132, 
 holding question of dedication dependent somewhat upon plat and map describing 
 street and sale of lots thereafter fronting on it; Pence v. Bryant, 54 W. Va. 267, 
 46 S. E. 275, holding acceptance by long usage of dedicated public street estops 
 owner from retraction, though there has been no formal acceptance by city. 
 
 Cited in note (122 Am. St. Rep. 218) on grant of easement in street by impli- 
 cation on sale of land by municipality. 
 
 Distinguished in Milliken v. Denny, 135 N. C. 22, 47 S. E. 132, holding mere 
 bounding of land conveyed on alley not sufficient to support action for obstruc- 
 tion of such alley; Church v. Dula, 148 N. C. 265, 61 S. E. 639, holding where 
 street laid off on map had never been used for street purposes and no improve- 
 ments had been made revocation was possible. 
 When statute of limitations run* agrainst municipality. 
 
 Cited in Turner v. Hillsboro, 127 N. C. 155, 37 S. E. 191, holding statute of 
 limitations runs against a municipality giving power to alienate streets and 
 other public lands; New Bern v. Wadsworth, 151 N. C. 312, 66 S. E. 144, hold- 
 ing no length of time or adverse user would bar or destroy an easement acquired 
 by the public in land for street purposes. 
 
 Cited in note (76 Am. St. Rep. 494) on adverse possession of public property. 
 Power of alienation of public property. 
 
 Cited in Southport v. Stanly, 125 N. C. 467, 34 S. E. 641, holding lease by 
 town officials of property devoted to use of town, ultra vires; Elizabeth City v. 
 Banks, 150 N. C. 413, 22 L.R.A.(X.S.) 933, 64 S. E. 189, holding commissioners 
 of a town cannot, without legislative authority, sell a street or park; Tise v. 
 Whitaker-Harvey Co. 144 N. C. 514, 57 S. E. 210, holding deed conveying public 
 way void, and the right of way uneffected, so far as the public is concerned; 
 Laurel v. Rowell, 84 Miss. 440, 36 So. 543, holding the closing of a street in 
 order to put a corporation in possession is ultra vires; Butler v. Penn Tobacco Co. 
 152 N. C. 419, 68 S. E. 12, holding town authorities hold streets in trust for 
 purposes of public traffic and, in absence of statutory authority grant right to 
 obstruct such street, even for public purposes. 
 
 Distinguished in Crowell v. Monroe, 152 N. C. 401, 67 S. E. 989, holding the 
 closing of a railroad crossing in order that on over head bridge may be 
 erected for use of public is not a taking of private property for public use and 
 damages are dam sum absque injuria. 
 
 Disapproved in Johnston v. Lonstorf, 128 Wis. 27, 107 X. W. 459, holding the 
 common council of city has no power to vacate a public alley without making 
 compensation to abutting lot owners. 
 Abutting; owner's proprietary ri.ulits. 
 
 Cited in Tate v. Greensboro, 114 X. C. 404, 24 L. R. A. 674, 19 S. E. 767 (dis- 
 senting opinion), majority holding city can cut down shade trees in sidewalk in 
 front of lot without compensating owner; White v. Xortlnvestern Xorth Carolina 
 R. Co. 113 N. C. 621, 22 L. R. A. 631, 37 Am. St. Rep. 639, 18 S. E. 330, holding 
 steam railroad cannot be maintained in street without compensating abutting 
 owner for loss of proprietary rights; Kray v. Muggli, 84 Minn. 99, 54 L. 11. A. 
 480, 87 Am. St. Rep. 332, 86 X. W. 882, holding riparian owner with prescrip- 
 tive right to maintain water in stream as obstructed by dam can bring action 
 to prevent removal of dam; Long v. Wilson, 119 Iowa, 272, 60 L. R. A. 7-2-2, 
 W Am. St. Rep. 315, 93 X. W. 282, holding abutting owner not bound by de- 
 cree to which he was not a party, changing boundaries of street: Moore v. 
 iMeroney, 154 X. C. 161, 69 S. E. 838, holding that legislature has no power to 
 
1351 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 5.51 
 
 vacate or abandon street without compensating abutting owners; Smith v. Beloit, 
 122 Wis. 416, 100 X. \V. 877, holding rights of abutting owners in highway con- 
 stitute rights in property which the owner is not to be deprived without com- 
 pensation; Hester v. Durham Traction Co. 138 X. C. 293, 1 L.R.A.(X.S.) ' 985, 
 50 S. E. 711, holding the abutting proprietor has no more right in the side- 
 walk than in the roadway; Borghart v. Cedar Rapids, 126 Iowa, 316, 68 L.R.A. 
 307, 101 N. W. 1120, holding the abutter has a right unshared by the com- 
 munity which cannot be taken away without answering in damages; Staton v. 
 Atlantic Coast Line R. Co. 147 X/C. 435, 17 L.R.A.(X.S.) 953, 61 S. E. 455, 
 holding soil over which streets are laid are impressed with trust, subject to 
 rights of public, for the use and benefit of lot owners abutting on said street. 
 
 Cited in footnote to Lostutter v. Aurora, 12 L. R. A. 259, which authorizes city 
 to fit up abandoned well in street without abutting owner's consent. 
 
 Cited in notes (10 L. R. A. 268) on damages for obstruction of street by street 
 railroad; (10 L. R. A. 276) on rights of abutting lot owners in street; (11 L. 
 R. A. 636) on servitude of light and air; (11 L. R. A. 750) on right of com- 
 missioners to close highway; (14 L. R. A. 372) on injury to abutters' easements 
 of light, air, and access by vacating street, changing grade, etc.; (26 L. R. A. 
 459) on abandonment of highway by nonuser or otherwise than by act of public 
 authorities; (26 L. R. A. 663) on effect of abandonment of highway; (26 L. R. 
 A. 822) on discontinuance or vocation of highway by public authorities; (14 
 L.R.A. (X.S.) 880) on effect on grantee's right to call in deed for street or alley 
 in which grantor owns fee. 
 
 7 L. R. A. 551, SHATTUCK v. WATSON, 53 Ark. 147, 13 S. W. 516. 
 Contract to compound crime. 
 
 Cited in Kirkland v. Benjamin, 67 Ark. 480, 55 S. W. 840, holding notes exe- 
 cuted in procure dismissal of criminal prosecution void; Burton v. McMillan, 
 52 Fla. 476, 8 L.R.A. (N.S.) 993, 120 Am. St. Rep. 220, 42 So. 849, 11 A. & E. 
 Ann. Cas. 38, holding the maxim "in pari delicto" does not apply to a case 
 where a married woman sues to set aside a deed of her separate property. 
 made bv her under express or implied threats of prosecution of her husband 
 for embezzlement and to save him from such prosecution whether such prose- 
 eution was lawful or unlawful. 
 
 Cited in footnote to William Deering & Co. v. Cunningham, 54 L. R. A. 410, 
 which holds void, contract to withdraw opposition to granting of pardon. 
 
 Cited in note (22 Am. St. Rep. 539) on remedy of parties in pari delicto. 
 Duress. 
 
 Cited in Langley v. Andrews, 142 Ala. 671, 38 So. 238, as to what constitutes; 
 Chambers v. Irish, 132 la. 324, 109 X. W. 787, holding threat to cancel contract by 
 legal process not duress. 
 
 Cited in footnotes to First Xat. Bank v. Sargent, 59 L. R. A. 296, which sus- 
 tains right to recover back money paid under duress; Flack v. Xational Bank of 
 Commerce, 17 L. R. A. 583, which holds threat by bank to institute proceed- 
 ings to collect unmatured note not duress: Springfield F. & M. Ins. Co. v. Hull, 
 25 L. R. A. 37, which upholds right to maintain suit for balance due on policy 
 without tendering back less sum accepted under threats of groundless prosecu- 
 tion; Galusha v. Sherman, 47 L. R. A. 417, which holds threats rendering 
 person incapable of exercising free will in contracting, duress. 
 
 Cited in notes (9 L. R. A. 633) on what constitutes duress; (16 L. R. A. 376) 
 on duress by lien on real property; (26 L. R. A. 52) on contracts procured by 
 threats on prosecution of relative. 
 
7 L.R.A. 553] L. R. A. CASES AS AUTHORITIES. 
 
 7 L. R. A. 553, COCHRAX v. MATTHIESSEX, 119 X. Y. 399, 23 N. E. 803. 
 Stockholders' liability for corporate debts. 
 
 Cited in Marshall v. Sherman, 148 N. Y. 28. 34 L. R. A. 767, 51 Am. St. Rep. 
 654, 42 N. E. 419, refusing to locally enforce stockholder's liability under statute 
 of another state; Sea ton v. Grimm, 110 Iowa, 151, SI X. W. 225, holding stock- 
 holder not liable for debt of corporation because notice required upon incorpora- 
 tion not given; Matteson v. Dent, 176 U. S. 528, 44 L. ed. 575, 20 Sup. Ct. Rep. 
 419, holding heirs of stockholder in whose name corporate shares stood at death 
 properly assessed for debt of corporation; Thompson v. Xicolai, 21 Misc. 708, 
 49 N. Y. Supp. 422, holding assignee of creditor can maintain action against a 
 single stockholder for debt of corporation; Close v. Brady, 4 Misc. 479, 24 X. Y. 
 Supp. 567 (dissenting opinion), majority holding that stockholder may show 
 date when corporation note was actually issued to escape liability; Berwind- 
 White Coal Min. Co. v. Ewart, 11 Misc. 492, 32 N. Y. Supp. 716, holding liability 
 of stockholder of corporation organized under Laws 1875, chap. 611, for debts 
 incurred, until filing of certificate that increased capital is paid in, preserved by 
 saving clause of repealing acts of 1890 and 1892; Close v. Potter, 155 N. Y. 151, 
 49 X. E. 686; Re Remington Automobile & Motor Co. 119 Fed. 444, holding 
 obligation of stockholder to creditors of corporation until stock subscribed for 
 and paid in, contractual; Barnes v. Arnold, 23 Misc. 207. 51 X. Y. Supp. 1109. 
 holding liability of stockholders to creditors under banking law is contractual, 
 not penal; Bauer v. Parker, 82 App. Div. 297, 81 N. Y. Supp. 995, holding indi- 
 vidual liability of directors limited by statute to $5,000 enforceable in equity for 
 benefit of creditors; Sanford v. Rhoads, 113 App. Div. 785, 99 X. Y. Supp. 407 r 
 holding stockholder liability contractual, not penal. 
 What actions survive. 
 
 Cited in footnotes to Aylsworth v. Curtis, 33 ^. R. A. 110, which holds sur- 
 vivable, action for value of property stolen; Perkins v. Stein, 20 L. R. A. 862,, 
 which holds survivable action for negligently driving over person. 
 
 7 L. R. A. 555, STROUGH v. WILDER, 119 X. Y. 530, 23 X. E. 1057. 
 Possession of deed. 
 
 Cited in Halladay v. Gass, 51 App. Div. 540, 64 X. Y. Supp. 825, holding- 
 possession of deed evidence not only of delivery, but that possessor is grantee 
 named in it; Ranken v. Donovan, 115 App. Div. 652, 100 X T . Y. Supp. 1049 r 
 holding production of deed raises a presumption of delivery as of the date of the 
 instrument. 
 
 Cited in notes (17 Am. St. Rep. 348; 53 Am. St. Rep. 553) on what is a de- 
 livery of a deed. 
 Declarations of grantor. 
 
 Cited in Hoffman v. Hoffman, 6 App. Div. 85, 39 X. Y. Supp. 494, holding 
 declaration of grantor made at time of executing deed to characterize act he was 
 then doing, admissible evidence. 
 Unacknowledged or unrecorded instrument. 
 
 Cited in Hill v. Bartholomew, 71 Hun, 455, 24 N. Y. Supp. 944, holding un- 
 attfested and unacknowledged agreement as to gate on right of way valid as to 
 purchaser from heirs of one of the parties thereto; Concurring opinion in McXally 
 v. Fitzsimmons, 70 App. Div. 186, 75 X. Y. Supp. 331, to point after voluntary- 
 partition each heir becomes purchaser from other and is protected against un- 
 recorded deed of which he had no knowledge where grantee not in possession. 
 
1353 L. II. A. CASES AS AUTHORIT1KS [7 L.R.A. 557 
 
 7 L. R. A. 5.-,7, YATXS CO I XTY XAT. BAXK v. CARPENTER, 119 X. Y. 550, 
 
 1C Am. St. Rep. 855, 23 X. E. 1108. 
 Exemptions. 
 
 Cited in People ex rel. Young Men's Asso. v. Sayles, 23 Misc. 6, 50 N. Y. 
 Supp. 8, holding maintenance of theatre and public hall in part of building does 
 not deprive corporation devoted to moral and intellectual purposes of exemption; 
 Reiff v. Mack, 160 Pa. 268, 40 Am. St. Rep. 720, 28 Atl. 699, and Price v. 
 Society for Savings, 64 Conn. 366, 42 Am. St. Rep. 198, 30 Atl. 139, holding 
 savings bank account covered by statute exempting "pension moneys;" Puget 
 Sound Dressed Beef & Packing Co. v. Jeffs, 11 Wash. 473, 27 L. R. A. 811, 48 
 Am. St. Rep. 885, 39 Pac. 962, holding insurance money for exempt furniture 
 destroyed, exempt for reasonable time; Mclntosh v. Aubrey, 185 U. S. 124, 46 
 L. ed. 837, 22 Sup. Ct. Rep. 561, holding statutory exemptions of pension money 
 from attachment, etc., protect it only until received by pensioner; St. Lawrence 
 State Hospital v. Fowler, 15 Misc. 163, 37 X. Y. Supp. 12, holding statutory 
 obligation of father to support son not enforceable where pension father's only 
 income; United States v. Frizzell, 19 App. D. C. 58, holding proceeds of pension 
 not chargeable with payment of pensioner's board and medical attendance while 
 in government hospital after discharge from Army; Cook v. Allee, 119 Iowa, 229, 
 93 X. W. 93, holding property purchased with proceeds of policy, exempt from 
 liability for debts of beneficiary contracted prior to death of assured. 
 
 Cited in notes (22 Am. St. Rep. 253) on property exempt from execution; (102 
 Am. St. Rep. 103) on exemption of wages, salaries and earnings. 
 Property purchased frith pension money. 
 
 Cited in People ex rel. Scott v. Williams, 6 Misc. 186, 27 X. Y. Supp. 23, hold- 
 ing realty purchased with widow's pension exempt from taxation; People ex rel. 
 Canaday v. Williams, 90 Hun, 503, 36 X. Y. Supp. 65, striking property held by 
 committee for discharged insane sailor from tax rolls, when purchased with 
 pension money; Tyler v. Ballard, 31 Misc. 542, 65 X. Y. Supp. 557, holding 
 judgment lien does not attach to land purchased with pension money after judg- 
 ment; Buffum v. Forster, 77 Hun, 28, 28 X. Y. Supp. 285, enjoining execution 
 against realty purchased with pension money; Lapolt v. Maltby, 10 Misc. 331, 
 31 X. Y. Supp. 686, holding assessors personally liable for assessing pensioners 
 exempt realty; Countryman v. Countryman, 23 X. Y. Civ. Proc. Rep. l(i.~>. 2s 
 N. Y. Supp. 260, holding mortgage of realty does not extinguish pension exemp- 
 tion; Strong v. Walton, 47 App. Div. 115, 62 X.. Supp. 353, Affirming on 
 this point 27 Misc. 305, 57 X. Y. Supp. 761, holding coal purchased with pension 
 money exempt from seizure for nonpayment of school taxes; Toole v. Oneida 
 County, 13 App. Div. 473, 37 X. Y. Supp. 9, holding land purchased with pension 
 money not liable to sale for nonpayment of taxes; People ex rel. Kenny v. Reilly, 
 41 App. Div. 380, 58 X. Y. Supp. 558, holding statutory exemption of property 
 purchased with soldier's pay and bounty money, no greater than pension ex- 
 emption; Van Hise v. Rensselacr County, 21 Misc. 573, 48 X. Y. Supp. 874, 
 allowing recovery of taxes paid on exempt realty to period of limitation; Re 
 Ellithorpe, 111 Fed. 163, holding real estate partly purchased with pension money 
 not exempt where mortgaged for larger amount for investment in other ventures; 
 Dargan v. Williams, 66 Xeb. 5, 91 X. W. 802, holding property exchanged for 
 property purchased with pension money exempt. 
 
 Cited in footnote to Johnson v. Elkins, 8 L. R. A. 552, which holds land pur- 
 chased with pension money and conveyed to wife liable for debts. 
 
 Cited in notes ( 19 L.R.A. 35 ) on exemption of property purchased with pension 
 
7 L.R.A. 557} L. R. A. CASES AS AUTHORITIES. J35-I 
 
 money; (46 L. ed. U. S. 835) on exemption of property purchased with pension 
 money, or of pension money after payment to pensioner. 
 
 Distinguished in Re Murphy, 9 Misc. 649, 30 N. Y. Supp. oil. Holding realty 
 taxable to extent purchase price not pension money; Fritz v. Worden, 20 App. 
 Div. 244, 46 N. Y. Supp. 1040, holding pension exemption lost by conveyance to 
 wife under secret agreement, where rights of innocent third party thereby affected: 
 People ex rel. Jones v. Feitner, 157 X. Y. 3G5, 51 N. E. 1002, Affirming 32 App. 
 Div. 25, 52 N. Y. Supp. 622, holding realty conveyed to wife on purchase by 
 pensioner, subject to taxation; Toole v. Oneida County, 16 Misc. 655, 37 N. Y. 
 Supp. 9, holding interest of wife taxable on conveyance of realty through third 
 party to pensioner and wife; Broderick v. Yonkers, 22 App. Div. 448, 48 N. Y. 
 Supp. 265 (dissenting opinion), majority holding taxes paid on exempt realty 
 not recoverable before assessment set aside; Worden v. Oneida County, 35 App. 
 Div. 208, 54 N. Y. Supp. 952, holding tax on realty valid where exemption not 
 claimed on grievance day; Re Liddle, 35 Misc. 174, 71 N. Y. Supp. 474, holding 
 decedent's exempt realty subject to execution in payment of debts; Re King, 24 
 App. Div. 606, 49 N. Y. Supp. 1, holding exemption not determinable on ex parte 
 affidavit in support of motion to restrain execution against realty; Smith v. 
 Blood, 106 App. Div. 324, 94 N. Y. Supp. 667, holding exemption personal to, and 
 does not survive, pensioner. 
 
 Disapproved in Ferguson's Estate, 140 Wis. 588, 123 N. W. 123, 17 A. & E. Ann. 
 Cas. 1189, holding pension money, under federal statute, is not exempt from 
 claims of creditors of the pensioner after the money has been paid to him and 
 converted into other property. 
 Proceeds of exempt property generally. 
 
 Cited in Bull v. Case, 41 App. Div.,392, 58 N. Y. Supp. 774, holding exemption 
 of insurance benefits does not extend to securities purchased with insurance 
 money; Bayer v. Sack, 66 Misc. 537, 121 N. Y. Supp. 1122, holding where property 
 of a judgment debtor exempt from execution is destroyed by fire, his judgment 
 creditor may not by an order in supplementary proceedings compel moneys pay- 
 able to judgment debtor under a policy of insurance to be paid to such creditor, 
 but judgment debtor is entitled to receive and use such moneys to replace articles 
 destroyed. 
 
 Cited in note (66 Am. St. Rep. 386) on exemption of proceeds of exempt per- 
 sonalty. 
 
 7 L. R. A. 559, CORN EXC,H. BANK v. FARMERS NAT. BANK, 118 N. Y. 443, 
 
 23 N. E. 923. 
 Liability of banks receiving paper for collection. 
 
 Cited in Irwin v. Reeves Pulley Co. 20 Ind. App. 128, 48 N. E. 601 (dissenting 
 opinion), majority holding bank accepting draft for collection not liable for 
 default of correspondent. 
 
 Cited in footnotes to Wilson v. Carlinville Nat. Bank, 52 L. R. A. 632. which 
 holds depositor of check for collection estopped to object to sending check directly 
 to drawee bank in accordance with custom known to him; Second Xat. Bank v. 
 Merchants' Nat. Bank, 55 L. R. A. 273, which holds bank negligent in sending 
 note for collection to bank whose cashier is treasurer of corporation maker with- 
 out hearing from similar note previously sent. 
 
 Cited in notes (7 L. R. A. 597) on banking check; (7 L. R. A. 845) on owner- 
 ship of paper indorsed in blank; (77 Am. St. Rep. 626) on duties of banks acting 
 as collecting agents. 
 Of correspondent banks. 
 
 Reaffirmed in Castle v. Corn Exch. Bank, 148 N. Y. 128, 42 X. E. 51 S, Affirm- 
 
1355 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 570 
 
 ing 75 Hun, 91, 26 X. Y. Supp. 1035, holding bank, receiving for collection check 
 sent by other bank holding jjb only for collection, liable as agent of latter bank. 
 
 Cited in Bank of Clarke Bounty v. Gilman, 81 Hun, 490, 30 N. Y. Supp. 1111, 
 holding correspondent bank liable to owner for proceeds of commercial paper in- 
 dorsed for collection. 
 
 Distinguished in Kelley v. Phenix Nat. Bank, 17 App. Div. 499, 45 N. Y. Supp. 
 533, holding subagent liable to owners for neglect in collecting bonds transmitted 
 for collection for owners. 
 
 7 L. R. A. 563, DANIELS v. NEW LONDON, 58 Conn. 156, 19 Atl. 573. 
 Power of attorney to bind client. 
 
 Cited in note (132 Am. St. Rep. 169) on implied authority of attorney in con- 
 ducting litigation. 
 
 Disapproved in effect Beliveau v. Amoskeag Mfg. Co. 68 N. H. 226, 44 L. R. A. 
 169, 73 Am. St. Rep. 577, 40 Atl. 734. upholding right of discharged attorney to 
 bind client by receiving damages and giving satisfaction of judgment. 
 
 7 L. R. A. 566, BECK v. GERMAN KLINIK, 78 Iowa, 696, 43 N. E. 617. 
 Special interrogations^ 
 
 Cited in Decatur v. Simpson, 115 Iowa, 352, 88 N. W. 839, holding special 
 interrogations calling for ultimate facts necessary in reaching verdict should be 
 submitted. 
 Liability of physician*. 
 
 Cited in notes (11 L. R. A. 701, 37 L. R. A. 835) on liability of physicians 
 for negligent treatment; (93 Am. St. Rep. 658) on liability of physicians and 
 surgeons for negligence and malpractice. 
 
 7 L. R. A. 568, GAFFORD v. STROUSE, 89 Ala. 283, 18 Am. St. Rep. Ill, 7 So. 
 
 248. 
 When statute of limitations begins to ran. 
 
 Cited in Stiff v. Cobb, 126 Ala. 386, 85 Am. St. Rep. 38, 28 So. 402, holding 
 possession by real estate by husband and wife residing together not adverse to 
 each other; Washington v. Norwood, 128 Ala. 389, 30 So. 405, holding statute of 
 limitations begins to run when cause of action arises; Anthony v. Seed r , 146 Ala. 
 197, 40 So. 577, as to limitation of time within which donor may revoke verbal 
 gift of land; Skinner v. State, 76 Conn. 226, 56 Atl. 524, holding wife by joint 
 occupancy of property with husband cannot acquire a title adverse to him. 
 
 7 L. R. A. 570, LITTLE v. CHADWICK, 151 Mass. 109, 23 N. E. 1005. 
 Following trust property. 
 
 Cited in O'Brien v. New England Trust Co. 183 Mass. 189, 66 N. E. 794, hold- 
 ing administratrix of sheriff entitled for administration to fund deposited by 
 him. although composed partly of moneys belonging to others; Crawford County 
 v. Strawn, 15 L.R.A.(N.S.) 1107, 84 C. C. A. 553. 157 Fed. 54; John Deere Plow 
 Co. v. McDavid, 70 C. C. A. 422, 137 Fed. 812. holding where trust funds have 
 been used by bankrupt in course of his business the owner of the funds is not 
 entitled to preference unless he can prove that his property is in its original or 
 substituted form in hands of trustee: Lowe v. Jones, 192 Mass. 101, 6 L.R.A. 
 (X.S.) 490, 116 Am. St. Rep. 225. 78 X. E. 402, 7 A. & E. Ann. Cas. 551; 
 Cherry v. Territory, 17 Okla. 223, 8 L.R.A. (X.S.) 1256, 89 Pac. 192, holding 
 when trust money becomes so mixed up with trustee's individual funds that it is 
 impossible to trace it as entering into some specific property the trust ceases; 
 AYaddell v. Waddell, 36 Utah. 447, 104 Pac. 743, holding that law presumes that 
 
7 L.R.A. 570] L. R. A. CASES AS AUTHORITIES. 1356 
 
 trustee draws out his oAvn funds in preference to trust funds, where he mingles 
 trust funds with his own. 
 
 Cited in footnotes to Central Stock & Grain Exchange v. Bendinger, 56 L. R. A. 
 875, which holds broker liable to refund to principal, money illegally taken from 
 agent as margins on gambling transaction ; Indiana, I. & I. R. Co. v. Swannell, 
 30 L. R. A. 290, which holds that property purchased by trustee for bondholders 
 under reorganization arrangement may be followed into hands of purchaser from 
 him with knowledge of the trust. 
 
 Cited in note (15 L.R.A. (N.S.) 1100) on lien on commercial paper purchased by 
 bank after mingling trust money with own funds. 
 
 Distinguished in Hewitt v. Hayes, 205 Mass. 362, 137 Am. St. Rep. 448, 91 
 N. E. 332, holding that beneficiary may follow mixed fund created by trustee de- 
 positing in bank money of his own and money which he holds as trustee; Harrigan 
 v. Gilchrist, 121 Wis. 250, 99 N. W. 909, holding a trust as to property having 
 been established the trustee cannot end his relations to the cestui que trust 
 by destroying the identity of the subject of the trust, such identity being lost 
 the trustee is yet liable to account in equity to the beneficiary for the loss. 
 When funds capable of identification. 
 
 Cited in York v. York Market Co. 68 N. H. 420, 37 Atl. 1038, holding checks 
 mingled with funds of insolvent company create no charge when indistinguishable ; 
 Holden v. Piper, 5 Colo. App. 74, 37 Pac. 34, holding trust property misapplied 
 recoverable if traceable; Ferchen v. Arndt, 26 Or. 129, 29 L. R. A. 666, footnote 
 p. 664, 46 Am. St. Rep. 603, 37 Pac. 161, holding consignor cannot impress funds 
 of consignee in hands of receiver when not traceable; Re Marsh, 116 Fed. 397, 
 holding right to impress lien on assets of bankrupt fails when trust fund not 
 traceable; Metropolitan Nat. Bank v. Campbell Commission Co. 77 Fed. 708, 
 holding right of company advancing money for purchase of cattle to establish 
 trust dependent on liability to locate property; Furber v. Dane, 203 Mass. 120, 
 89 N. E. 227, as to right to follow pledged property when capable of identifi- 
 cation. 
 
 Cited in notes (30 L. R. A. 290, 56 L. R. A. 875) on following trust funds; 
 (8 L. R. A. 789) on comingling trust funds. 
 Dissipation of public funds. 
 
 Cited in Fire & Water Comrs. v. Wilkinson, 119 Mich. 665, 44 L. R. A. 498, 
 78 N. W. 893; Spokane County v. First Nat. Bank, 16 C. C. A. 84, 29 U. S. App. 
 707, 68 Fed. 982; State v. Foster, 5 Wyo. 215, 29 L. R. A. 250, 63 Am. St. Rep. 
 47, 38 Pac. 926, holding public moneys deposited in insolvent bank establish 
 no trust unless traceable. 
 When funds remain in insolvent estate and swell it. 
 
 Cited in Standard Oil Co. v. Hawkins, 33 L. R. A. 743, 20 C. C. A. 475, 46 U. S. 
 App. 115, 74 Fed. 402, holding one not precluded from impressing with trust lien 
 funds in hands of receiver when assets exceeding claim remain; Ferchen v. 
 Arndt, 26 Or. 129, 29 L. R. A. 666, 46 Am. St. Rep. 603, 37 Pac. 161, holding it 
 must appear funds on hand to impress insolvent estate with lien for trust funds ; 
 Independent Dist. v. Beard, 83 Fed. 11, holding proof of increase of property 
 sufficient to fasten special trust upon funds in hands of receiver; Van Ingen v. 
 Feldt, 86 Wis. 348, 56 N. W. 923, holding funds of lodge deposited with in- 
 solvent member after assignment impressed with trust. 
 Effect on beneficiary of dissipation of trust funds. 
 
 Cited in Burnham v. Earth, 89 Wis. 370, 62 N. W. 96, holding claim of infant 
 to funds dissipated by insolvent bank on same basis as general creditors; Slater 
 v. Oriental Mills, 18 R. I. 356, 27 Atl. 443, holding right to follow property ap- 
 
1357 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 572 
 
 preprinted by insolvent company lost when funds dissipated; State v. Bank of 
 Commerce, 54 Neb. 729, 75 X. W. 28, holding beneficiary of titist funds dissipated 
 by bank not preferred to others; Drovers' & M. Nat. Bank v. Roller, 85 Md. 500, 
 36 L. R. A. 769, 60 Am. St. Rep. 344, 37 Atl. 30, holding assets not chargeable 
 with lien in favor of one for whom bankrupt sold sheep, where proceeds have been 
 dissipated; Morrison v. Lincoln Sav. Bank & S. D. Co. 57 Neb. 228, 77 N. W. 655, 
 and Bank of Florence v. United States Sav. & Loan Co. 104 Ala. 301, 16 So. 110, 
 holding cestui que trust shares with general creditors when trust fund misap- 
 plied; Paul v. Draper, 158 Mo. 201, 81 Am. St. Rep. 296, 59 S. W. 77, holding 
 deposit of infant's money in insolvent bank creates relation of debtor and cred- 
 itor, not trustee and cestui que trust ; Bank Coinrs. v. Security Trust Co. 70 X. II. 
 548, 49 Atl. 113, holding beneficial owner of trust funds not entitled to prefer- 
 ence over general creditors of insolvent trustee when moneys dissipated; Re 
 Mulligan, 116 Fed. 718, holding mere misapplication of proceeds of sales give* 
 defrauded consignors no lien superior to general creditors; Hill v. Miles, 83 Ark. 
 489, 104 S. W. 198, holding claim by owner of trust funds dissipated by insolv- 
 ent bank is on same basis as general creditors. 
 Collections made >> insolvent bank. 
 
 Cited in Xonotuck Silk Co. v. Flanders, 87 Wis. 242, 58 N. W. 383; Hallam v. 
 Tillinghast, 19 Wash. 27, 52 Pae. 329; Thuemmler v. Barth, 89 Wis. 389, 62 
 X. W. 94, holding one for whom bank collected draft before assignment can 
 only share with general creditors; Ober & Sons Co. v. Cochran, 318 Ga. 405, 98 
 Am. St. Rep. 118, 45 S. E. 382, holding the mere fact that a bank to which a note 
 was sent for collection with instructions to immediately remit the proceeds of the 
 collection to the owner, c'ollected the money due on the note, and instead of 
 obeying instructions used the same in its own business, is not sufficient, upon its 
 insolvency, to impress a trust on a fund realized by its receiver, by converting its 
 assets into cash. 
 Power of equity court over trust*. 
 
 Cited in Hudson v. J. B. Parker Mach. Co. 173 Mass. 248, 53 N. E. 867, holding 
 equity court has power over trusts and will determine rights of persons inter- 
 ested therein. 
 
 7 L. R. A. 572, MURDOCK v. FRANKLIN INS. CO. 33 W. Va. 407, 10 S. E. 777. 
 Limitation clause in insnrniice policy Fire insurance. 
 
 Cited in Steel v. Phenix Ins. Co. 2 C. C. A. 469, 7 U. S. App. 325, 51 Fed. 721, 
 holding limitation of time to sue for insurance operates from expiration of 60 
 days from proofs of loss; Sample v. London & L. F. Ins. Co. 46 S. C. 497, 47 
 L. R. A. 707, 57 Am. St. Rep. 701, 24 S. E. 334, holding stipulation that suit can 
 be brought on policy within 12 months after fire, means 12 months from accrual 
 of right; State Ins. Co. v. Meesman, 2 Wash. 468, 26 Am. St. Rep. 870, 27 Pac. 77 
 (dissenting opinion), majority holding limitation to action on policy begins from 
 date of fire, notwithstanding stipulation in proof of loss clause; Hogel v. Aachen 
 Ins. Co. 65 W. Va. 438, 131 Am. St. Rep. 972, 64 S. E. 441, holding though a 
 fire insurance policy provide that suit must be brought on it within 12 months 
 from the fire, yet it also provides that no suit shall be brought before 60 
 days after proof of loss the 12 months does not begin until the end of the 60 
 days. 
 
 Cited in notes (11 L. R. A. 599) on waiver of conditions in fire policy by 
 refusal to pay loss; (8 L. R. A. 769; 47 L. R. A. 708) on limitation of actions 
 for fixed period on marine and miscellaneous policies: (14 Eng. Rul. Cas. 21;. 
 28 Am. St. Rep. 583) on limitation of actions on insurance policies. 
 
7 L.R.A. 572] L. R. A. CASES AS AUTHORITIES. 1358 
 
 Disapproved in Egan v. Oakland Ins. Co. 29 Or. 405, 54 Am. St. Rep. 798, 42 
 Pac. 990, holding action upon policy must commence within 6 months after fire, 
 though loss not payable for 60 days after proofs of loss. 
 Life insurance. 
 
 Disapproved in effect, McFarland v. Railway Officials & E. Acci. Asso. 5 YVyo. 
 133, 27 L. R, A. 51, 63 Am. St. Rep. 29, 38 Pac. 347, holding provision in life 
 insurance policy limiting time to sue begins at death. 
 Insuruble interest. 
 
 Cited in Home Ins. Co. v. Mendenhall, 164 111. 465, 36 L. R. A. 377, 45 N. E. 
 1078, holding heir expectant in possession has insurable interest in property 
 though deed undelivered to father. 
 
 Cited in notes (13 Eng. Rul. Gas. 277, 278) on insurable interest of agent; 
 (13 Eng. Rul. Cas. 214, 314) on insurable interest in property. 
 Effect of statute on rate of interest. 
 
 Cited in Seton v. Hoyt, 34 Or. 281, 43 L. R, A. 638, 75 Am. St. Rep. 641, 55 
 Pac. 967, holding unpaid county warrants, bearing interest, contracts upon which 
 rate of interest not reduceable by statute. 
 Interest on judgments. 
 
 Cited in Baer's Sons Grocer Co. v. Cutting Fruit-Packing Co. 42 W. Va. 365, 
 26 S. E. 191, holding judgments on contracts bear interest from date of verdict; 
 Talbott v. West Virginia C. & P. R. Co. 42 W. Va. 563, 26 S. E. 311, holding in- 
 terest computed from date of judgment in actions in tort. 
 Retrospective effect of statutes. 
 
 Cited in Baldwin v. Aberdeen, 23 S. D. 640, 26 L.R.A. ( N.S. ) 120, 123 N. W. 
 80, holding statute requiring notice to city before action can be brought for 
 personal injuries did not apply to injuries received after statute was approved, 
 but before it went into effect. 
 
 Cited in note (30 Am. St. Rep. 78) on retroactive statutes. 
 
 7 L. R. A. 576, STARCR v. UNION CENT. L. INS. CO. 134 Pa. 45, 19 Am. St. 
 Rep. 674, 19 Atl. 703. 
 
 Cited in Hall v. Mutual Reserve Fund Life Asso. 19 Pa. Super. Ct. 34, holding 
 death by suicide avoids policy, regardless of motive or insanity; Doll v. Pruden- 
 tial Ins. Co. 21 Pa. Super. Ct. 437, holding clause as to incontestability not vio- 
 lated by correction of misstated age of insured. 
 
 Cited in notes (42 L.R.A. 249, 261) on incontestability of life insurance policy; 
 (84 Am. St. Rep. 552) on self-destruction as defense to life insurance. 
 
 7 L. R. A. 577, WIESE v. SAN FRANCISCO MUSICAL FUND SOC. 82 Cal. 
 
 645, 23 Pac. 212. 
 Conclusiveness of judgments. 
 
 Cited in Reed v. Cross, 116 Cal. 484, 48 Pac. 491. holding right to contribution 
 established in one action, conclusive upon parties in later action based on same 
 transaction; Koehler v. Holt Mfg. Co. 146 Cal. 337, 80 Pac. 73, holding judg- 
 ment that an order of third person directing defendant to pay out moneys to 
 become due from him to third person had been revoked conclusive in an action on 
 other installments. 
 
 Cited in footnotes to Wilkes v. Davies, 23 L. R. A. 103, which holds conclusive 
 refusal of injunction against consummating sale of school lands till improvements 
 paid for; Reich v. Cochran, 37 L. R. A. 805, which holds judgment by default in 
 summary proceedings by landlord not bar to pending action to have lease 
 
3359 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 583 
 
 adjudged a mortgage; Ruckman v. Union Railway, 69 L.R.A. 480. which holds 
 judgment for defendant in action to compel surrender of corporate bonds to suc- 
 cessor of corporation issuing same on ground of wrongful transfer a bar to a 
 claim of payment in subsequent suit to foreclose mortgage securing same. 
 
 Cited in notes (8 L. R. A. 268; 11 L. R, A. 159, 311) on attacking judgments 
 collaterally. 
 
 7 L. R. A. 583, REESE v. WESTERN U. TELEG. CO. 123 Ind. 294, 24 N. E. 163. 
 Sufficiency of complaint to show negligence. 
 
 Cited in South Florida Teleg. Co. v. Maloney, 34 Fla. 345, 16 So. 280, holding 
 complaint in action for negligence in transmitting message should state facts 
 showing liability; Western U. Teleg. Co. v. Klitzke, 45 Ind App. 552, 89 N. E. 
 405, holding that under statute requiring that telegraph companies must, under 
 penalty deliver messages, if addressee lives within certain distance from station, 
 complaint to recover such penalty must allege that addressee lives within such 
 limits. 
 Strict construction of penal statutes. 
 
 Cited in Southern Indiana Loan & Sav. Inst. v. Doyle, 26 Ind. App. 105, 59 
 N. E. 179, holding penal statutes governing actions to recover penalty for refusal 
 to satisfy mortgage strictly construed: Osborn v. Hocker, 160 Ind. 3, 66 X. E. 
 42, holding penalty for refusal to discharge mortgage not recoverable without 
 payment of full amount of debt. 
 Remedy for violation of duty. 
 
 Cited in Pittsburgh, C. C. & St. L. R. Co. v. Russ, 6 C. C. A. 600, 18 U. S. App. 
 279, 57 Fed. 825, holding passenger wrongfully ejected from train may sue com- 
 pany in tort or for breach of contract. 
 .Mental suffering 1 as element of damage. 
 
 Cited in Young v. Western U. Teleg. Co. 107 N. C. 376, 9 L. R, A. 671, footnote, 
 p. 669, 22 Am. St. Rep. 883, 11 S. E. 1044, holding neglect for 8 days to deliver 
 message "come in haste, wife near death" renders company liable for mental 
 anguish; Western U. Teleg. Co. v. Cain, 14 Ind. App. 117, 42 X. E. 655, authoriz- 
 ing recovery for mental anguish from delay in announcing brother's illness pre- 
 venting attendance at funeral; Cashion v. Western U. Teleg. Co. 123 X. C. 272, 
 31 S. E. 493, holding failure to deliver message makes company liable for mental 
 anguish not as breach of contract, but of public duty; Cashion v. Western U. 
 Teleg. Co. 124 X. C. 466, 45 L. R. A. 162, 32 S. E. 746. holding damages for mental 
 pain caused by failure to deliver message recoverable, though relationship of 
 parties not disclosed; Mentzer v. Western U. Teleg. Co. 93 Iowa, 756, 28 L. R. A. 
 73, 57 Am. St. Rep. 294, 62 N. W. 1, and Western U. Teleg. Co. v. Cline, 8 Ind. 
 App. 365, 35 N. E. 564, holding right to damages for mental suffering for nonde- 
 livery of message announcing death, though no pecuniary loss result; Western 
 U. Teleg. Co. v. Xewhouse, G Ind. App. 434, 33 X. E. 800; Western U. Teleg. Co. v. 
 Bryant, 17 Ind. App. 74, 40 X. E. 358; Western U. Telcg. Co. v. Strateineier, 6 
 Ind. App. 132, 32 X. E. 871; Cowan v. Western U. Teleg. Co. 122 Iowa, 381, 64 
 L. R. A. 548, 98 X. W. 281, authorizing recovery for mental anguish from 
 delay in delivery of telegram: Renihan v. Wright, 125 Ind. 545, 9 L. R. A. 517, 
 21 Am. St. Rep. 249, 23 X. E. 822. holding in assessment of damages for under- 
 taker's breach of contract to retain corpse, mental pain should be considered; 
 Western U. Teleg. Co. v. Caldwell, 126 Ky. 48. 12 L.R.A. (X.S.) 752. 102 S. W. 
 840, holding failure of telegraph company to deliver message to plaintiff inform- 
 ing her of her brother's death entitle her to recover damages for mental anguish: 
 Barnes v. Western U. Teleg. Co. 27 Xev. 445, 65 L.R.A. 670, 103 Am. St. Rep. 
 
7 L.R.A. 583] L. R. A. CASES AS AUTHORITIES. 1360 
 
 776, 76 Pac. 931, 1 Ann. Gas. 346, holding mental suffering unaccompanied by 
 physical suffering can be estimated and allowed for in damages in an action 
 against telegraph company for negligence in delivery of message. 
 
 Cited in footnotes to Connell v. Western U. Teleg Co. 20 L. R. A. 172, which 
 denies recovery for mental distress for failure to deliver telegram; International 
 Ocean Teleg. Co. v. Saunders, 21 L. R. A. 810, which holds mental suffering not 
 element of damage for failure to promptly deliver telegram; Western U. Teleg. 
 Co. v. Wood, 21 L. R. A. 706, which denies recovery for mental anguish from de- 
 lay in delivering telegram; Chapman v. Western U. Teleg. Co. 17 L. R, A. 430, 
 which denies recovery to addressee for mental suffering from failure to deliver 
 telegram; Getty v. Peters, 10 L. R. A. 464, which holds damages for mental 
 anguish alone from delay in delivering telegram not recoverable. 
 
 Cited in notes (13 L.R.A. 860) on opinions favoring damages for mental suffer- 
 ing alone; (22 Am. St. Rep. 897) on liability of telegraph company for mental 
 anguish; (68 Am. St. Rep. 826) on damages for mental suffering; (117 Am. 
 St. Rep. 307) on mental suffering as element of damages recoverable for failure 
 to transmit and deliver telegrams; (14 L.R.A. (N.S.) 501) on mental anguish 
 suffered by sender deprived of advice and consolation as element of damages for 
 failure to deliver telegram announcing sickness or death. 
 
 Questioned in Western U. Teleg. Co. v. Briscoe, 18 Ind. App. 25. 47 X. E. 473, 
 stating that in Indiana recovery is allowed for mental damages without pe- 
 cuniary loss from delay in delivery of telegram announcing mother's death. 
 
 Criticized in Western U. Teleg. Co. v. Ferguson, 26 Ind. App. 220, 59 N. E. 416, 
 expressing opinion that damages for distress of mind without bodily injury not 
 recoverable for nondelivery of message announcing death. 
 
 Disapproved in effect in Kester v. Western U. Teleg. Co. 55 Fed. 604; Western 
 U. Teleg. Co. v. Wood, 21 L. R. A. 712, 6 C. C. A. 450, 13 U. S. App. 317, 57 Fed. 
 477 ; Newman v. Western U. Teleg. Co. 54 Mo. App. 440, holding no damages re- 
 coverable for mental anguish for nondelivery of telegram; Curtin v. Western U. 
 Teleg. Co. 13 App. Div. 255, 42 N. Y. Supp. 1109, and Connelly v. Western U. 
 Teleg. Co. 100 Va. 57, 56 L. R. A. 667, 93 Am. St. Rep. 919, 40 S. E. 618, holding 
 damages for mental suffering for negligent transmission of message not recover- 
 able at common law or under statute; Connell v. Western U. Teleg. Co. 116 Mo. 
 50. 20 L. R. A. 178, 38 Am. St. Rep. 575, 22 S. W. 345, holding no damages re- 
 coverable for nondelivery of message, although company knew mental pain would 
 result; Western U. Teleg. Co. v. Rogers, 68 Miss. 756, 13 L. R. A. 862. 24 Am. 
 St. Rep. 300, 9 So. 823; Chapman v. Western U. Teleg. Co. 88 Ga, 765, 17 L. R. 
 A. 431, 30 Am. St. Rep. 183, 15 S. E. 901 ; Peay v. Western U. Teleg. Co. 64 Ark. 
 543, 39 L. R. A. 463, 43 S. W. 965 ; Crawson v. Western U. Teleg. Co. 47 Fed. 546, 
 holding right of recovery for mental pain from nondelivery of message dependent 
 upon element of physical suffering; International Ocean Teleg. Co. v. Saunders, 
 32 Fla. 442, 21 L. R. A. 814, 14 So. 148, holding nominal damages only recover- 
 able for delay in delivery of telegram, mental pain alone resulting; Western 
 Teleg. Co. v. Burris, 102 C. C. A. 386, 179 Fed. 94, holding there can be no re- 
 covery in federal court for damages consisting solely in mental anguish caused 
 by negligence of telegraph company in delivery of a message; Western U. Teleg. 
 Co. v. Chouteau, 28 Okla. 684, L.R.A.(N.S.) , 115 Pac. 879, holding that in 
 absence of statute damages are not recoverable for mental distress alone, caused 
 by negligent delay in delivering telegram. 
 
 Overruled in Western U. Teleg. Co. v. Ferguson, 157 Ind. 64, 54 L. R. A. 851, 
 60 N. E. 674, holding mental pain resulting from negligence in delivery of mes- 
 snjre not actionable. 
 
1361 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 588 
 
 Xotice from contents of telegram. 
 
 Cited in Western U. Teleg. Co. v. Griffin, 1 Ind. App. 50, 27 N. E. 113, holding 
 message calling doctor for child shows necessity for prompt service; Western 
 U. Teleg. Co. v. Nations, 82 Tex. 541, 27 Am. St. Rep. 914, 18 S. W. 709, holding 
 message announcing death sufficient to inform company mental pain will result 
 from nondelivery; Western U. Teleg. Co. v. Newhouse, 6 Ind. App. 431, 33 N. E. 
 800, and Western U. Teleg. Co. v. Eskridge, 7 Ind. App. 213, 33 N. E. 238, hold- 
 ing message announcing serious illness sufficient notice for immediate trans- 
 mission and delivery; Western U. Teleg. Co. v. Coffin, 88 Tex. 96, 30 S. W. 800. 
 holding action for damages not supported in absence of notice that great ment-iT 
 pain may result from nondelivery; Western U. Teleg. Co. v. McClelland. 38 Ind. 
 App. 585, 78 N. E. 672, holding where the importance of a telegraph message ap- 
 pears on its face the company will be held to have notice of the urgency of its de- 
 livery; Western U. Teleg. Co. v. Potts, 120 Tenn. 44, 19 L.R.A.(N.S.) 481, 127 
 Am. St. Rep. 991, 113 S. W. 789, holding a telegraph company may learn the 
 grounds on which it may base an estimate of or anticipate damages resulting 
 from a failure to promptly deliver the message either from facts communicated 
 to its agents dehors the message or from the face of the message itself. 
 Liability for negligence in delivery of telegram. 
 
 Cited in Cogdcll v. Western U. Teleg. Co. 135 N. C. 435, 47 S. E. 490. holding 
 that telegraph company ownes duty to public promptly to deliver telegram,, 
 irrespective of contract; Western U. Teleg. Co. v. Moore, 12 Ind. App. 140, 54 
 Am. St. Rep. 515, 39 X. E. 874, holding prepayment for delivery beyond free de- 
 livery limits not essential to recovery of damages for failure to diligently deliver 
 message; Western U. Teleg. Co. v. Sefrit, 38 Ind. App. 508. 78 N. E. 038: Western 
 U. Teleg. Co. v. Braxton, 165 Ind. 171, 74 X. E. 985, holding statute requiring 
 prompt "transmission" of messages included delivery; Harrison v. Western U.. 
 Teleg. Co. 143 X. C. 152, 55 S. E. 435, 10 A. & E. Ann. Gas. 476, holding failure 
 of telegraph company to deliver message is no mere breach of contract, but a 
 failure to perform a public duty. 
 
 Cited in footnote to Western U. Teleg. Co. v. Short,, 9 L. R. A. 744, which holds, 
 company prima facie liable for failure to deliver telegram. 
 
 Cited in note (10 L. R. A. 516) on liability for failure to transmit telegraphic 
 message. 
 Who may sue for delay in delivery of telegram. 
 
 Cited in Whitehill v. Western U. Teleg. Co. 136 Fed. 501, holding person for 
 whose benefit message is sent, if that fact is apparent from the telegram itself, 
 may maintain an action for damages by reason of the negligence of the company. 
 
 7 L. R. A. 588, TERRE HAUTE & I. R. CO. v. CLEM, 123 Ind. 15. 18 Am. St. 
 
 Rep. 303, 23 X. E. 965. 
 Duty of railroad companies to maintain safe crossings. 
 
 Cited in Lake Shore & M. S. R. Co. v. McTntosh, 140 Ind. 278. 38 N. E. 476. 
 holding duty of railroad company to maintain crossing in good condition and 
 safe; Seybold v. Terre Haute & I. R. Co. 18 Ind. App. 379, 46 X. E. 1054, holding 
 failure of railroad company to observe statutory duty of mending highway 
 actionable negligence: Indiana ex rcl. Muncie v. Lake Erie & W. R. Co. 83 Fed. 
 287, holding statutory duty devolves upon company to maintain safe crossing 
 convenient for increased use by public; Ohio & M. R. Co. v. Trowbridge, 126 Ind. 
 394, 26 X. E. 64, holding railroad liable for injury resulting from horse taking 
 fright at car left at crossing: St. Louis & S. F. R. Co. v. Dyer. 87 Ark. 533, 
 113 S. W. 49, holding railway company need not provide facilities at crossings 
 for vehicles not in ordinary u*e: Graham v. Chicago, I. & L. R. Co. 39 Ind. App. 
 L.R.A. An. Vol. I. 86. 
 
7 L.R.A. 588} L. R. A. CASES AS AUTHORITIES. 1362 
 
 298, 77 N. E. 57, holding obstruction of stream or watercourse, road, railroad, 
 or canal by construction of railroad or failure to keep crossings in repair is in 
 violation of statute which gives right of action to one injured thereby. Evans- 
 ville & I. R. Co. v. Allen, 34 Ind. App. 642, 73 X. E. 630, holding guards neces- 
 sary part of crossing. 
 
 Cited in footnote to Jeffrey v. Detroit, L. & N. R. Co. 31 L. R. A. 170, which 
 holds railroad company liable for defect in sidewalk across track. 
 Probable results an test of negligence. 
 
 Cited in Louisville, X. A. & C. R. Co. v. Xitsche, 126 Ind. 233, 9 L. R. A. 752, 
 22 Am. St. Rep. 582, 26 N. E. 51, holding railroad company liable for setting fires 
 on right of way when damage by spreading probable; Cleveland, C. C. & St. L. 
 R. Co. v. Berry, 152 Ind. 618, 46 L. R. A. 56, 53 N. E. 415, holding lack of care 
 not shown by placing coupling pin on tender where it would not reasonably be 
 expected to fall; Barman v. Spencer (Ind.), 44 L. R. A. 817, 49 X. E. 9, holding 
 persons going out at night not required to anticipate dangers they are ignorant 
 of to exempt from negligence. 
 Precautions after accident as proof of negligence. 
 
 Cited in Wabash County v. Pearson, 129 Ind. 457, 28 X. E. 1120, holding 
 admission of evidence of repairs after injury incompetent to show negligence; 
 Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 207, 36 L. ed. 407, 12 Sup. Ct. 
 Rep. 591, holding evidence incompetent showing change in hanging pulley after 
 injury, tending to create prejudice and shift real issue: Motey v. Pickle Marble 
 & Granite Co. 20 C. C. A. 371, 36 U. S. App. 682, 74 Fed. 157, and Muncie Pulp. 
 Co. v. Jones, 11 Ind. App. 117, 38 X. E. 547, holding improper to show repairs 
 of hole in floor after accident; Green v. Ashland Water Co. 101 Wis. 269, 43 L. 
 R. A. 121, 70 Am. St. Rep. 722, 77 X. W. 722, holding in action for damage for 
 death by failing to provide pure water, recovery dependent on condition previous 
 thereto. Baran v. Reading Iron Co. 202 Pa. 286, 51 Atl. 979, holding evidence 
 showing change in support and operation of boilers after accident incompetent to 
 prove prior negligence; Anson v. Evans, 19 Colo. 279, 35 Pac. 47, holding error 
 to ^admit evidence in negligence action that new ropes replaced old ones after 
 accident; Sievers v. Peters Box & Lumber Co. 151 Ind. 658, 50 X. E. 877, holding 
 court did not err in refusing to admit evidence that elevator gearing fastened 
 differently after accident; Bell v. Washington Cedar Shingle Co. 8 Wash. 29, 35 
 Pac. 405, holding in action for damages for injury from imperfect machinery, 
 evidence of change thereafter improper; Shelby County v. Blair, 8 Ind. App. 589, 
 36 X. E. 216, holding improper to show construction of new bridge after injury, 
 in place of defective one; Standard Oil Co. v. Tierney, 92 Ky. 378, 14 L. R. A. 
 683, 36 Am. St. Rep. 595, 17 S. W. 1025, holding evidence of subsequent change 
 in mode of branding barrels of naphtha inadmissible in action for negligence in 
 shipping it improperly branded; Shinners v. Locks & Canals, 154 Mass. 170. 12 
 L. R. A. 558, 26 Am. St. Rep. 226, 28 X. E. 10, holding evidence improper 
 showing precautionary acts in shoring up bank subsequent to injury by falling 
 of earth; Holt v. Spokane & P. R. Co. 3 Idaho, 716, 35 Pac. 39, holding evidence 
 of filling up of well in which child was drowned, after accident, inadmissible; 
 Plunkett v. Clearwater Bleachery & Mfg. Co. 80 S. C. 318, 61 S. E. 431, holding 
 such precautions not generally evidence. 
 
 Cited in notes (116 Am. St. Rep. Ill; 11 Eng. Rul. Cas. 246) on admissibility 
 of subsequent repairs or precautions. 
 In actions against railroads. 
 
 Cited in Southern P. Co. v. Hall, 100 Fed. 768, holding repair of railroad 
 water box after injury does not effect question of previous negligence; Georgia 
 Southern & F. R. Co. v. Cartledge, 116 Ga. 166, 59 L. R. A. 120, footnote p. 118, 
 
1303 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 591 
 
 42 S. E. 405, holding additional precaution taken after injury caused by mail 
 grab striking post not admission of negligence; Atchison, T. & S. F. R. Co. v. 
 Parker, 5 C. C. A. 222, 12 U. S. App. 132, 55 Fed. 597, holding not proper to 
 show repairs made on switch engine subsequent to accident; Prescott & N. R. Co. 
 v. Smith, 70 Ark. 183, 67 S. W. 865, holding change of method in making up 
 train cannot be used as evidence of previous wrong; Aldrich v. Concord & M. R. 
 Co. 67 X. H. 253, 29 Atl. 408, holding evidence incompetent that switch causing 
 derailment replaced by different kind after accident; Chicago & E. R. Co. v. Lee, 
 17 Ind. App. 223, 46 X. E. 543, holding proof improper showing signal wires 
 which caused injury afterwards covered; Illinois C. R. Co. v. Wyatt. 104 Tenn. 
 434, 78 Am. St. Rep. 926, 58 S. W. 308, holding evidence of repairs to platform 
 after injury cannot be admitted to prove antecedent negligence; Denver & R. G. 
 ]R. Co. v. Morton, 3 Colo. App. 158, 32 Pac. 345, holding error to show railroad 
 employees helped extinguish fire, on question of origin; Pennsylvania Co. v. 
 Witte, 15 Ind. App. 593, 43 N. E. 319, Isaacs v. Southern P. Co. 49 Fed. 798; 
 Kentucky & I. Bridge Co. v. McKinney, 9 Ind. App. 220, 36 N. E. 448, holding 
 ^evidence of extension of platform after injury of one falling from elevated train 
 not admissible to prove negligence; Nashville, C. & St. L. R. Co. v. Ragan, 167 
 Ala. 280, 52 So. 522, holding that in action for injuries caused by defective 
 railroad crossing evidence that repairs were made several days after accident 
 was inadmissible; Pribbeno v. Chicago, B. & Q. R. Co. 81 Neb. 659, 116 N. W 
 494; Place v. Grand Trunk R. Co. 82 Vt. 48, 71 Atl. 836, holding as a general 
 rule evidence of repairs made after the accident is incompetent to show antece- 
 .dent negligence on part of railway company. 
 
 Distinguished in Skottowe v. Oregon Short Line & U. N. R. Co. 22 Or. 439, 
 16 L. R. A. 596, 30 Pac. 222, holding evidence of repairs after injury competent 
 -to show ownership, but not negligence; Chicago & E. R. Co. v. Barries. 10 Ind. 
 App. 462, 38 N. E. 428, holding evidence of repairs on bridge after injury com- 
 petent in rebuttal, not to show negligence. 
 Evidence of subsequent condition. 
 
 Cited in note (32 L.R.A. (N.S.) 1128, 1146) on admissibility of evidence of con- 
 dition before and after accident of property whose defects alleged to have caused 
 injury. 
 
 Distinguished in Creamery Package Mfg. Co. v. Hotsenpiller, 159 Ind. 105, 
 04 N. E. 600, holding evidence of subsequent condition of machine causing injury 
 admissible, where same as at time of accident. 
 'Liability of railway company for breach of statutory duty. 
 
 Cited in Kelsay v. Chicago, C. & L. R. Co. 41 Ind. App. 132, 81 N. E. 522, hold- 
 ing under statute a railway company which destroyed a drain constructed under 
 state law was liable to owner of lands rendered untillable by such act. 
 
 7 L. R. A. 590, DICK v. FLANAGAN. 122 Ind. 277, 23 N. E. 765. 
 Payment of pre-existing debt with third person's note. 
 
 Cited in Zimmerman v. Adee, 126 Ind. 18, 25 N. E. 828, holding in absence of 
 agreement taking note of third person for pre-existing debt no payment. 
 Cited in note (35 L.R.A.(N.S.) 16) on payment by commercial paper. 
 
 7 L. R. A. 591, COPPAGE v. HUTTON, 124 Ind. 401, 24 N. E. 112. 
 Signing and acknowledging articles of association. 
 
 Cited in Greenbrier Industrial Exposition v. Rodes, 37 W. Va. 741, 17 S. E. 
 305, holding each subscriber to articles of association must acknowledge signa- 
 ture to make a subscription binding. 
 
7 L.R.A. 591] L. R. A. CASES AS AUTHORITIES. 1364 
 
 Cited in note (136 Am. St. Rep. 745) on nature and validity of subscription 
 agreement to corporate stock. 
 
 Distinguished in Shick v. Citizens' Enterprise Co. 15 Ind. App. 334, 57 Am. 
 St. Rep. 230, 44 X. E. 48, holding subscriber to capital stock of existing corpo- 
 ration need not sign and acknowledge articles of association. 
 
 7 L. R. A. 592, DANAHER v. BROOKLYN, 119 N. Y. 241, 23 N. E. 745. 
 City's liability for injury. 
 
 Cited in Lenzen v. Braunfels, 13 Tex. Civ. App. 358, 35 S. W. 341, holding city 
 liable for negligent failure to supply water to extinguish fire; Springfield F. 
 
 6 M. Ins. Co. v. Keeseville, 80 Hun, 169, 29 N. Y. Supp. 1130, holding city liable 
 for damage due to its wilful misconduct or culpable neglect to maintain water- 
 works and fire appliances; Spier v. Brooklyn, 45 N. Y. S. R. 263, 18 N. Y. Supp. 
 170, holding city liable for injury due to display of fireworks licensed by it: 
 McGarey v. New York, 89 App. Div. 501, 85 X. Y. Supp. 861, holding city liable 
 for injury to pedestrian by falling of rotten limb of tree into street; De 
 Agramonte v. Mt. Vernon, 112 App. Div. 295, 98 N. Y. Supp. 454, holding a mu- 
 nicipality which licenses an exhibition of fireworks is not liable for injuries 
 caused by negligence of licensee. 
 
 Cited in footnotes to Green v. Ashland Water Co. 43 L. R. A. 117, which holds 
 water company not liable for injury due to unwholesome water when consumer 
 knew of its condition; Hughes v. Auburn, 46 L. R. A. 636, which denies city's 
 liability for disease due to neglect of proper sanitary precautions as to sewer 
 system; Duncan v. Lynchburg, 48 L. R. A. 331, which denies city's liability for 
 nuisance by pollution of water in unauthorized operation of rock quarry outside 
 city limits. 
 
 Cited in notes (61 L.R.A. 88) on establishment and regulation of municipal 
 water supply; (30 Am. St. Rep. 401) on liability of cities for negligence and' 
 other misconduct of officers and agents; (108 Am. St. Rep. 170) as to what 
 municipal corporations are answerable for injuries due to defects in streets and 
 other public places. 
 
 Distinguished in Springfield F. & M. Ins. Co. v. Keeseville, 80 Hun, 169, 29 
 N. Y. Supp. 1130, holding village maintaining by taxation system of waterworks 
 liable for loss by fire from lack of water due to employment of incompetent men, 
 and letting works get out of repair. 
 
 Disapproved in Miller v. Detroit, 156 Mich. 639, 132 Am. St. Rep. 537, 121 
 N. W. 490, 16 A. & E. Ann. Cas. 832, holding private damages not recoverable 
 for breach of duty imposed upon municipality. 
 
 7 L. R. A. 595, GOSHEN NAT. BANK v. BINGHAM, 118 N. Y. 349, 16 Am. St. 
 
 Rep. 765, 23 N. E. 180. 
 Lack of indorsement as subjecting; instrument to defenses. 
 
 Cited in Grabosski v. Gewerz, 44 N. Y. S. R. 128, 17 N. Y. Supp. 528, holding 
 note not indorsed by payee subject in hands of holders to all defenses which 
 might have prevailed between original parties; Meade v. Sandidge, 9 Tex. Civ. 
 App. 365, 30 S. W. 245, holding transferee of note without indorsement occupies 
 no better position than assignor; Lebcher v. Lambert, 23 Utah, 11, 63 Pac. 628,. 
 holding holder of note not indorsed by payee takes subject to existing equities; 
 First Nat. Bank v. Henry, 156 Ind. 11, 58 N. E. 1057, holding no consideration 
 good defense to note transferred before maturity without indorsement; Pavey 
 v. Stauffer, 45 La. Ann. 361, 19 L. R. A. 721, 12 So. 512, holding if indorsement 
 accidentally omitted subsequent indorsement relates back to time of transfer 
 and shuts off equities; Meridian Nat. Bank v. First Nat. Bank, 7 Ind. App. 337,. 
 
1365 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 599 
 
 52 Am. St. Rep. 450, 34 X. E. 608, holding indorsement with fictitious name, of 
 check payable to person under such assumed name, valid, making indorsee holder 
 for value; Pitkin v. Clayton, 41 App. Div. 305, 58 X. Y. Supp. 483, holding trans- 
 feree of note by assignment instead of indorsement takes subject to all equities 
 that might be urged against assignor; Wangner v. Grimm, 169 N. Y. 428, 62 
 X. E. 509, holding assigned note subject to defense of payment to payee without 
 notice of assignment; Gray Tie & Lumber Co. v. Farmers' Bank, 109 Ky. 699, 60 
 S. W. 537, holding transferee of draft without indorsement takes it subject to 
 defenses. 
 
 Cited in footnote to Mayer v. Heidelbach, 9 L. R. A. 850, which holds one 
 taking check in absolute payment of debt a bona fide purchaser. 
 
 Cited in notes (26 L.R.A. 570) on indorsement as affecting negotiability of 
 check; (17 L.R.A. (N.S.) 1110) on transferee, without indorsement, of bill or 
 note payable or indorsed "to order" as bona fide purchaser; (4 Eng. Rul. Cas. 
 337; 14 Eng. Rul. Cas. 750) on title of one taking bill or note without indorse- 
 ment. 
 Necessity or effect of indorsement. 
 
 Cited in Eichner v. Bowery Sav. Bank, 78 N. Y. S. R. 333, 44 N. Y. Supp. 332, 
 holding bank not liable for refusal to pay check until it is indorsed by payees; 
 McCarville v. Lynch, 14 Misc. 176, 35 N. Y. Supp. 383, holding possession of 
 unindorsed certificate of deposit does not show ownership or power of disposition: 
 Brown v. Janes, 71 Misc. 319, 130 X. Y. Supp. 333, to the point that note may 
 be transferred by delivery only without indorsement. 
 
 Cited in note (12 L. R. A. 493) check must be indorsed by payee. 
 Heplevin as remedy. 
 
 Cited in Haas v. Altieri, 2 Misc. 253, 21 N. Y. Supp. 950, to point replevin 
 lies for possession of check; Hower v. Weiss Malting & Elevator Co. 5 C. C. A. 
 133, 14 U. S. App. 210, 55 Fed. 359 (dissenting opinion), majority holding 
 injunction to restrain sale of stock representing controlling interest in corpora- 
 tion will be granted, and that remedy at law by replevin is inadequate. 
 Certification of check. 
 
 Cited in People v. Saint Xicholas Bank, 77 Hun, 169, 28 N. Y. Supp. 407, 
 holding bank by certification of check becomes debtor to holder, and not obliged 
 to set apart particular fund for payment; Meuer v. Phenix Nat. Bank, 94 App. 
 Div. 338, 88 N. Y. Supp. 83, Affirming 42 Misc. 345, 86 X. Y. Supp. 701, holding 
 bank certifying check upon request of holder liable thereon. 
 
 Cited in note (128 Am. St. Rep. 700, 702) on certified checks. 
 Deposit slips. 
 
 Cited in note (17 L. R. A. 580) on deposit slips given by banks. 
 Payment of forged paper. 
 
 Cited in note (7 L. R. A. 849) on payment by bank of forged paper. 
 Effect of acquisition of l-u:i 1 title by equitable owner. 
 
 Cited in Wenz v. Pastene, 209 Mass. 363, L.R.A.(X.S.) , 95 N. E. 793, 
 holding that one acquiring equitable interest in property by payment of part 
 of consideration, cannot after notice destroy another person's prior right by 
 procuring legal title. 
 
 7 L. R. A. 599, YELLOWSTONE KIT v. STATE, 88 Ala. 196, 16 Am. St. Rep. 
 
 38, 7 So. 338. 
 Lottery, -what constitutes. 
 
 Cited in Reeves v. State. 105 Ala. 123, 17 So. 104. holding device consisting 
 of board and arrow indicating prizes, for privilege of spinning which charge is 
 
7 L.R.A. 599] L. R. A. CASES AS AUTHORITIES. 
 
 made, lottery; Loiseau v. State, 114 Ala. 38, 62 Am. St. Rep. 84, 22 So. 138, 
 holding slot machine operated under agreement that person making highest 
 score have cigars to value of money put in, lottery; Paulk v. Jasper Land Co. 
 116 Ala. 183, 22 So. 495, holding apportionment of building lots of different 
 values by drawing numbers, lottery; Chancy Park Land Co. v. Hart, 104 Iowa r 
 595, 73 N. W. 1053, holding apportionment of building lots of equal value among 
 subscribers by drawing numbers, not lottery; State v. Shugart, 138 Ala. 91, 35 
 So. 28, holding issuance of trading stamps not a lottery or gift enterprise; State 
 v. Hawkins, 95 Md. 146, 93 Am. St. Rep. 328, 51 Atl. 850, upholding statute 
 prohibiting trading stamps, so far as involving element of chance; State v. 
 Shugart, 138 Ala. 91, 100 Am. St. Rep. 17, 35 So. 28, holding issuance of trading 
 stamps not a lottery; State v. Perry, 154 N. C. 619, 70 S. E. 387, holding that 
 lottery in gaming contract by which for consideration one may by favor of lot 
 obtain something in return of value superior to amount or value of that which he 
 risks. 
 
 Cited in footnotes to Equitable Loan & Security Co. v. Waring, 62 L. R. A. 93, 
 which holds determination by chance of time of payment of fixed amount due 
 certificate holder in investment association, not illegal: Lynch v. Rosenthal, 31 
 L. R. A. 835, which holds sale of lots to be drawn by lot. with one prize lot to be 
 given to one of purchasers as result of chance, void; State ex rel. Prout v. 
 Nebraska, Home Co. 60 L. R. A. 448, which holds scheme by which common fund 
 is to be distributed among contributors, a valuable preference in distribution 
 of w r hich depends on chance, a lottery; State ex rel. Sheets v. Interstate Sav.. 
 Invest. Co. 52 L. R. A. 531, which holds investment securities, etc., which by 
 certain device may be redeemed before maturity, and otherwise give unequal 
 advantages to certificate holders, a lottery; Meyer v. State, 51 L. R. A. 496, 
 which holds giving customers chance to operate slot machine and secure, in 
 addition to purchase, article whose value determined by place where revolving, 
 wheel stops, a lottery; State ex rel. Kellogg v. Kansas Mercantile Asso. 11 
 L. R. A. 430, w r hich holds scheme for distribution of prizes by chance, a lottery; 
 Thornhill v. O'Rear, 31 L. R. A. 792, which holds agreement by one person to 
 take all chances of raffle, not unlawful: People ex rel. Ellison v. Lavin, 66 L.R.A.. 
 601, which holds distribution of prizes to those who shall make' closest estimate 
 of number of cigars on which tax is paid during specified month, a lottery: 
 People v. McPhee, 69 L.R.A. 505, which holds a scheme by which a certain 
 number of persons pay a small sum weekly and choose by lot each week one of 
 the number to receive a suit of clothes worth much more than the weekly 
 payment after which he ceases to be a member, a lottery, although each member 
 is entitled to trade out the amount paid in whenever he chooses to withdraw. 
 
 Cited in notes (8 L. R. A. 671) on what constitutes lottery schemes; (10 
 L. R. A. 60) on lotteries and lottery tickets. 
 
 Distinguished in State v. Hawkins, 95 Md. 146, 93 Am. St. Rep. 328, 51 Atl. 
 850, holding under statute issuance of trading stamps lottery. 
 Gift enterprises. 
 
 Cited in Cross v. People, 18 Colo. 324, 36 Am. St. Rep. 292, 32 Pac. 821, hold- 
 ing gratuitous distribution of property by chance for which no consideration is 
 received, directly or indirectly, no lottery; Long v. State, 74 Md. 570. 12 L. R. A. 
 427, 28 Am. St. Rep. 268, 22 Atl. 4, holding gift enterprise not involving chance,, 
 not prohibitable by legislature. 
 
 Cited in note (12 L. R. A. 89) on gift enterprise as lottery. 
 
 Distinguished in Lansburgh v. District of Columbia, 11 App. D. C. 529, holding-; 
 trading stamps given to purchasers of goods, entitling holders to premiums^ 
 within act prohibiting gift enterprises. 
 
1367 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 605- 
 
 arising: out of illegal transaction. 
 
 1 in footnote to Martin v. Richardson, 19 L. R. A. 692, which holds unlaw- 
 ful purchaser of lottery ticket entitled to proceeds from one fraudulently obtain- 
 ing after prize drawn. 
 
 Cited in note (7 L. R. A. 705) on when promissory note invalid. 
 
 7 L. R. A. 605, MEMPHIS & C. R. CO. v. WOODS, 88 Ala. 630, 16 Am. St. Rep, 
 
 81, 7 So. 108. 
 Povrer of corporation to own another's stock. 
 
 Cited in Hamilton v. Savannah, F. & W. R. Co. 49 Fed. 424, holding in absence 
 of statutory authority corporation cannot acquire another's stock; Tompkins^ 
 v. Compton, 93 Ga. 523, 21 S. E. 79, holding attempted sale of majority stock to 
 effect consolidation against objection of minority stockholders, illegal; Dunbar v. 
 American Teleph. & Teleg. Co. 224 111. 30, 115 Am. St. Rep. 132, 79 N. E. 423 r 
 
 8 A. & E. Ann. Cas. 57, holding a corporation cannot purchase a majority of the 
 capital stock of another corporation in its own name or in the name of others 
 as agents or trustees for the purpose of controlling the latter, and thereby pre- 
 venting competition between it and such other corporation. 
 
 Cited in notes (8 L.R.A. 498) on corporate franchises as public grants; 
 (30 Am. St. Rep. 137, 138, 140) on right to acquire stock in another corpora- 
 tion; (S9 Am. St. Rep. 611) on distinction between consolidation of corporations 
 or purchase. 
 Povrer of corporation to vote stock. 
 
 Cited in George v. Central R. & Bkg. Co. 101 Ala. 621, 14 So. 752, holding 
 voting of majority stock by rival railroad may be enjoined; State ex rel. Jack- 
 son v. Xewman, 51 La. Ann. 839, 72 Am. St. Rep. 476, 25 So. 408, holding that 
 corporation cannot, in absence of statutory authority, vote stock of another; 
 Wheeler v. Abilene Xat. Bank Bldg. Co. 16 L.R.A. (N.S.) 897, 89 C. C. A. 477, 
 159 Fed. 394, 14 A. & E. Ann. Cas. 917, holding any sale of the corporate property 
 by a single holder of the majority of the stock by use of the meetings of the board 
 of directors, and the meetings of the stockholders in legal form for its fair 
 value, but for a smaller amount than could be obtained for it from another, is 
 voidable at the election of the minority stockholders. 
 
 Cited in note (29 L. R. A. 849) on right to vote by proxy in private corpora- 
 tions. 
 
 Distinguished in American Refrigerating & Constr. Co. v. Linn, 93 Ala. 612, 
 7 So. 191, holding voting of majority stock of domestic by foreign corporation 
 may not be enjoined unless interest clearly shown antagonistic; South & X. A. 
 R. Co. v. Gray, 160 Ala. 514, 49 So. 347, holding the majority stockholders 
 would not be eTijoined from voting the sale of the corporation at the suit of a 
 small minority complaining thereof, the latter having the right to set sale aside 
 or injoin its consummation if it proved fraudulent or oppressive. 
 Transactions betvreen corporations under same control. 
 
 Cited in O'Conner Min. & Mfg. Co. v. Coosa Furnace Co. 95 Ala. 617, 36 Am. 
 St. Rep. 251, 10 So. 290, holding transactions between corporations having same 
 directors voidable by either corporation, or its stockholders; Montgomery Traction 
 Co. v. Harmon, 140 Ala. 520, 37 So. 371, holding contracts between corporations 
 having same officers and directors will be set aside unless reasonable. 
 
 Cited in note (33 L. R. A. 793) on contracts between corporations having com- 
 mon directors or officers. 
 "When stockholder may maintain action to protect corporate rights. 
 
 Cited in Steiner v. Parsons, 103 Ala. 221, 13 So. 771, holding stockholder 
 
7 L.E.A. 605] L. R. A. CASES AS AUTHORITIES. 1368 
 
 filing bill to compel president to account for corporate funds must show redress 
 not obtainable through corporation; Mack v. De Bardeleben Coal & I. Co. 90 
 Ala. 400, 9 L. R. A. 654, 8 So. 150, holding voting majority stock by rival cor- 
 poration may not be enjoined by stockholder without previous request to direct- 
 ors, or showing request useless; George v. Central R. & Bkg. Co. 101 Ala. 624, 
 14 So. 752, holding stockholders showing that demand upon officers to prevent il- 
 legal voting of stock would be fruitless, entitled to maintain action. 
 
 Cited in notes (9 L.R.A. 655) on neglect or refusal to comply with request of 
 corporation to sue; (24 Am. St. Rep. 644) on suit by stockholders against 
 directors for mismanagement; (97 Am. St. Rep. 34) on action by stockholders in 
 behalf of corporations. 
 Pleading "What averment sufficient. 
 
 Cited in Christian v. American Freehold Land Mortg. Co. 92 Ala. 131, 9 So. 
 219, holding averment of fact not impaired by needless recital of complainant's 
 grounds of belief; Smith v. Rogers County, 26 Okla. 822, 110 Pac. 669, holding 
 that pleading should contain positive statement of essential facts. 
 Contracts between stockholders or directors in control and corporation. 
 
 Cited in Mobile Land Improv. Co. v. Gass, 142 Ala. 528, 39 So. 229, holding 
 void, deed by corporation to secretary, made pursuant to resolution at meeting in 
 which secretary's participation was necessary to constitute quorum; Mulverhill 
 v. Vicksburg R. Power & Mfg. Co. 88 Miss. 712, 40 So. 647, holding they should 
 be closely scrutinized. 
 
 Cited in notes (17 Am. St. Rep. 298, 306; 139 Am. St. Rep. 607, 614, 621) 
 on validity of contracts between director and corporation. 
 Purchase by corporation of Its own stock. 
 
 Cited in Dacovich v. Canizas, 152 Ala, 294, 44 So. 473, holding stock purchased 
 by directors of corporation with corporate funds for benefit of corporation become 
 property of corporation, unless corporation repudiated transaction. 
 Presumption that stockholders acted in own interest. 
 
 Cited in Mannington v. Hocking Valley R. Co. 183 Fed. 147, holding that 
 presumption is that board of directors were elected by all stockholders and that 
 stockholders acted in their own interest. 
 
 7 L. R. A. 613, WHITNEY v. WHEELER COTTON MILLS, 151 Mass. 396, 24 
 
 N. E. 774. 
 Grants of water rights constrned. 
 
 Cited in Gray v. Saco Water Power Co. 85 Me. 531, 27 Atl. 455, holding grant 
 of water passing through certain aperture in dam does not include right to have 
 usual head maintained. 
 
 Distinguished in Whittenton Mfg. Co. v. Staples, 164 Mass. 326, 29 L. R. A. 
 503, 41 N. E. 441, holding right to use of reservoir included in grant of "all 
 streams, dam, water power, and privileges, head and fall of water . . . with 
 rights . . . thereto belonging." 
 "Where appurtenant to grant of land. 
 
 Cited in Showhegan Water Power Co. v. Weston, 94 Me. 293, 47 Atl. 515, 
 holding grantee of land on both sides of channel acquires ordinary riparian 
 rights. 
 
 Cited in note (58 L. R. A. 488) on how far grant of mill includes water rights. 
 Right to store or dam water. 
 
 Cited in Wamesit Power Co. v. Sterling Mills, 158 Mass. 448, 33 N. E. 503, 
 holding accumulation of water in mill ponds outside of working hours, legal; 
 Corse v. Dexter, 202 Mass. 33, 88 N. E. 332, holding construction of a mill dam 
 
1369 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 618 
 
 across stream by abutting owner creates no easement to flood land abutting on 
 stream below dam; Allen v. Thomapple Electric Co. 144 Mich. 374, 115 Am. St. 
 Rep. 453, 108 X. W. 79, holding one has no right to raise water of stream 
 by dam thus flooding the lands above it; Mason v. Whitney, 193 Mass. 157, 7 
 7. .1;. A. (X.S.) 289, 118 Am. St. Rep. 448, 78 N. E. 881, holding in absence of right 
 by prescription the lower proprietor can acquire no rights by usage to enjoy the 
 benefit of upper proprietors dam and reservoir for storage of water. 
 
 Cited in notes (12 L. R. A. 639) on riparian rights; (9 L. R. A. 812) on ri- 
 parian right to use waters of stream; (8 L. R. A. 277) on prescriptive right to 
 flow of water; (8 L. R. A. 202) on right of lower owner to flow of water; (41 
 L. R. A. 749) on correlative rights of upper and lower proprietors as to use 
 and flow of water in stream. 
 Rig-lit to divert \vater. 
 
 Cited in footnote to Gould v. Eaton, 38 L. R. A. 181, which denies riparian 
 owner's power to transfer right to divert water from stream to use on nonripa- 
 rian land. 
 Prescriptive right to use of reservoir. 
 
 Cited in Home v. Hutchins, 71 N. H. 123, 51 Atl. 651, holding clear evidence 
 required to establish prescriptive right to use of reservoir. 
 
 7 L. R. A. 618, HILL v. KIMBELL, 76 Tex. 210, 13 S. W. 59. 
 Recovery for damages caused by fright. 
 
 Cited in Gulf, C. & S. F. R. Co. v. Hayter, 93 Tex. 241, 47 L. R. A. 326, 77 Am. 
 St. Rep. 856, 54 S. W. 944, holding damages recoverable by passenger on wrecked 
 train for physical injuries proximately resulting from fright; Watson v. Dilts, 
 116 Iowa, 252, 57 L. R. A. 561, 93 Am. St. Rep. 239, 89 N. W. 1068, holding 
 damages recoverable for nervous prostration proximately resulting from fright 
 occasioned by nocturnal trespasser: Engle v. Simmons, 148 Ala. 95. 7 L.R.A. 
 i X.S.) 97, 121 Am. St. Rep. 59, 41 So. 1023, 12 A. & E. Ann. Gas. 740; Stewart 
 v. Arkansas Southern R. Co. 112 La. 768, 36 So. 676; El Paso Electric R. Co. v. 
 Furber, 45 Tex. Civ. App. 350, 10 S. W. 1041, holding where fright is caused by 
 the wrongful act or omission of another, and physical injury results therefrom, 
 and such act or omission is the proximate cause of the injury, damages may be 
 recovered therefor; Alexander v. St. Louis Southwestern R. Co. 57 Tex. Civ. 
 App. 411, 122 S. W. 572. to the point that action lies for bodily injury resulting 
 from fright caused by wrongful act of another. 
 
 Cited in notes (14 L. R. A. 6G6) on fright as basis for cause of action; (32 
 L. R. A. 142) on recovery of damages for miscarriage; (16 L. R. A. 2(58) on ef- 
 fect of previous disease on person injured, on liability for causing injuries; (53 
 L. R. A. 633) on extent of trespasser's liability for consequential injuries re- 
 sulting from trespass; (69 L.R.A. 519) on care due to sick, infirm, or helpless 
 persons with whom no contract relation is sustained; (77 Am. St. Rep. 870) on 
 fright as element of recoverable damages; (3 L.R.A. (X.S.) 61, 66) on right to. 
 recover for physical injury resulting from fright caused by wrongful act. 
 
 Di>tinfruished in Xelson v. Crawford, 122 Mich. 470, 80 Am. St. Rep. 577, 81 
 X. W. 335, holding one frightening woman without malicious intent not liable 
 for miscarriage six weeks later: Denison, 13. & X. O. R. Co. v. Barry, 98 Tex. 
 251, 83 S. W. 5. holding railroad company not liable for fright caused to persons 
 living in the vicinity by reason of flooding of lands caused by failure to supply 
 sufficient sluices in a dump company was constructing, as such injury was not 
 one to be reasonably anticipated. 
 
7 L.R.A. 618] L. R. A. CASES AS AUTHORITIES. 1370 
 
 Damages for mental suffering. 
 
 Cited in Cowan v. Western U. Teleg. Co. 122 Iowa, 382, 64 L. R. A. 549, 98 
 N. W. 281, holding recoverable, damages for mental anguish resulting from neg- 
 ligence in transmission of telegram; Bacon v. Pullman Co. 16 L.R.A. (X.S.) 582, 
 89 C. C. A. 1, 159 Fed. 7, 14 A. & E. Ann. Cas. 516, holding where plaintiff was 
 very ill under charge of physician in sleeping car, and her bag containing her 
 medicines and stimulants were stolen, she could recover for mental anguish 
 occasioned by being deprived of them. 
 
 Cited in note (8 Eng. Rul. Cas. 418) on damages for mental suffering. 
 
 Distinguished in Shellabarger v. Morris, 115 Mo. App. 571, 91 S. W. 1005, 
 holding damages not recoverable for mental anguish in absence of physical in- 
 jury. 
 What are actions for trespass. 
 
 Cited in Ft. Worth & D. C. R. Co. v. McAnulty, 7 Tex. Civ. App. 327, 26 S. W. 
 414, holding negligence in transportation of cattle by railroad, trespass; Cox v. 
 Strickland, 120 Ga. 107, 47 S. E. 912, 1 A. & E. Ann. Cas. 870, holding trespass in 
 its broadest sense comprehends any misfeasance, transgression or offense which 
 .damages another's person, health, reputation, or property; Bouillon v. Laclede 
 Gaslight Co. 148 Mo. App. 470, 129 S. W. 401, holding that trespasser is liable 
 for injury to person although he had no intent to do injury where trespass is 
 wilful or malicious. 
 Within, statute regulating: venue. 
 
 Cited in Connor v. Saunders, 9 Tex. Civ. App. 63, 29 S. W. 1140, holding inju- 
 Ties to employee from negligence of employer's superintendent, trespass; Rotan 
 v. Maedgen, 24 Tex. Civ. App. 559, 59 S. W. 585, holding conversion of note 
 by conspiracy, trespass; Wettermark v. Campbell, 93 Tex. 523, 56 S. W. 331, 
 holding wrongful levy of execution, trespass: Baldwin v. Richardson, 39 Tex. 
 Civ. App. 349, 87 S. W. 353, holding where defendant, under an agreement with 
 plaintiff, pastured plaintiff's cattle on his land and pastured diseased cattle of his 
 -own without those of plaintiff, it constituted a trespass. 
 
 Limited in Connor v. Saunders, 81 Tex. 637, 17 S. W. 236; Austin v. Cameron, 
 83 Tex. 353, 18 S. W. 437; Ricker v. Shoemaker, 81 Tex. 25, 16 S. W. 645, hold- 
 ing negligence in failure to act not trespass within meaning of statute. 
 
 7 L. R. A. 620,. PEREZ v. RAYBAUD, 76 Tex. 191, 13 S. W. 177. 
 Landlord's liability for injuries due to defective premises. 
 
 Cited in Oriental Investment Co. v. Sline, 17 Tex. Civ. App. 695, 41 S. W. 130, 
 holding landlord not liable for dangerous condition at time of lease, in ab- 
 sence of fraud, deceit, or covenant; Thompson v. Clemens, 96 Md. 206, 60 L. R. 
 A. 583, 53 Atl. 919, holding landlord not liable for injury to one falling through 
 floor of porch, because of breach of agreement to repair: Bailey v. Kelly, 86 Kan. 
 919, 39 L.R.A. (N.S.) 382, 122 Pac. 1027, to the point that as between landlord 
 and servants or licensees of tenant landlord's duty as to safety of premises is the 
 same as toward the tenant; Miles v. Janvrin, 196 Mass. 438, 13 L.R.A. (X.S.) 
 381, 124 Am. St. Rep. 575, 82 N. E. 708, holding to charge a landlord in tort 
 for injury to tenant through breach of contract to repair, he must be shown to 
 have undertaken to maintain the premises in a safe condition for tenants use; 
 Davis v. Smith, 26 R. I. 132, 66 L.R.A. 481, 106 Am. St. Rep. 691, 58 Atl. 630, 3 
 A. & E. Ann. Cas. 832 ; American Exch. Nat. Bank v. Swope, 46 Tex. Civ. App. 66, 
 101 S. W. 872, holding as between landlord and tenant there is no implied war- 
 ranty on the part of the landlord that the premises are in a tenantable condition. 
 
 Cited in notes (34 L. R. A. 611) on liability of landlord for injuries to ten- 
 
J371 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 623 
 
 ant's guests and servants from defects in premises; (46 L. R. A. 84, 86, 87) on 
 liability of owner of premises not in possession; (33 L. R. A. 451) on implied 
 covenant in lease as to fitness of property for purpose intended; (9 L. R. A. 641) 
 on basis of liability for negligence; (66 Am. St. Rep. 785) on liability of landlord 
 letting premises in defective condition; (92 Am. St. Rep. 505, 509, 511, 527) on 
 liability to third persons of lessors of real or personal property. 
 
 7 L. R. A. 622, RILEY v. SIMPSON, 83 Cal. 217, 23 Pac. 293. 
 Liability for maintaining' dangrerona structure. 
 
 Cited in Willcox v. Hines, 100 Tenn. 553, 41 L. R. A. 281, 66 Am. St. Rep. 
 770, 46 S. W. 297, holding landlord liable to tenant for defective porch of which 
 he knows at time of lease; Lewy Art Co. v. Agricola, 169 Ala. 68, 53 So. 145, 
 holding that tenant who is aware of dangerous condition of awning is liable to 
 pedestrian injured by its fall; Blickley v. Luce, 148 Mich. 240, 111 N. W. 752, 
 holding where a landlord directs one tenant to make repairs at the landlord's 
 expense, those who do the work represent the landlord whether independent con- 
 tractors or not; the duty to reconstruct the building so as not to injure another 
 tenant's property being an absolute duty resting on landlord, which he cannot 
 delegate to another and thereby escape liability; Hudson County v. Woodcliff 
 Land Improv. Co. 74 N. J. L. 361, 65 Atl. 844, holding a landowner who permits 
 another to create a nuisance upon his land is liable to one injured thereby. 
 
 Cited in footnote to Cork v. Blossom, 26 L. R. A. 256, which holds one main- 
 taining high chimney liable for fall on adjoining building. 
 
 Cited in notes (26 L. R. A. 200) on liability of landlord to third persons for 
 condition of premises in tenant's possession; (34 L. R. A. 558) on individual 
 liability for falling walls or buildings; (26 L. R. A. 340) on right to maintain 
 awnings in street; (22 Am. St. Rep. 853) on liability of landlord for nuisance; 
 (66 Am. St. Rep. 787; 15 Eng. Rul. Cas. 343) on liability of landlord letting 
 premises in defective condition: (92 Am. St. Rep. 536) on liability of lessor for 
 injury to third person from defective awning. 
 Liability of lessor for lessee's acts. 
 
 Cited in Campbell v. Louisville Coal Min. Co. 39 Colo. 382, 10 L.R.A.(N.S.) 822, 
 89 Pac. 767, holding lessor of coal vein, all the coal in which having been removed 
 by lessee with his knowledge, and no supports provided, liable to owner of 
 surface soil to damages caused by soil sinking. 
 
 Cited in notes (86 Am. St. Rep. 516, 518) on liability of lessor for nuisance 
 treated by tenant; (92 Am. St. Rep. 529) on liability to third person of lessor 
 assenting to licensing act causing injury. 
 
 7 L. R. A. 623, HARRISON v. DETROIT, L. & N. R. CO. 79 Mich. 409, 19 Am. 
 
 St. Rep. 180, 44 N. W. 1034. 
 Fellow servants. 
 
 Cited in Jackson v. Norfolk & W. R. Co. 43 W. Va. 395, 46 L. R. A. 350, 27 
 S. E. 278, and Norfolk & W. R. Co. v. Houchins, 95 Va. 411, 46 L. R. A. 367, 
 64 Am. St. Rep. 802, 28 S. E. 578, both holding conductor fellow servant with 
 brakeman; Lyttle v. Chicago & W. M. R. Co. 84 Mich. 295, 47 N. W. 571, hold- 
 ing yard master and switchman fellow servants; Erickson v. Milwaukee, L. S. 
 .& W. R. Co. 93 Mich. 417, 53 N. W. 393, holding foreman on gravel train and 
 shoveler fellow servants; Gann v. Nashville, C. & St. L. R. Co. 101 Tcnn. 384, 70 
 Am. St. Rep. 690, 47 S. W. 493, holding section boss and section hand fellow 
 servants in operation of hand car: McLaine v. Head & D. Co. 71 N. H. 307, 58 
 L. R. A. 469, 93 Am. St. Rep. 522, 52 Atl. 545 (dissenting opinion), majority 
 .holding foreman fellow servant of laborer in trench, as to foreman's promise to 
 
7 L.R.A. 623] L. R. A. CASES AS AUTHORITIES. 1372" 
 
 warn latter when dirt is to be dumped; Anderson v. Michigan C. R. Co. 107 Mich. 
 612, 65 N. W. 585 (dissenting opinion), majority holding brakeman not fellow 
 servant with section men; Bloyd v. St. Louis & S. F. R. Co. 58 Ark. 78, 41 Am. 
 St. Rep. 93, 22 S. W. 1089, holding bridge foreman not fellow servant with pile 
 driver; Palmer v. Michigan C. R. Co. 93 Mich. 367, 17 L. R. A. 639, 32 Am. 
 St. Rep. 507, 53 N. W. 397, holding assistant road master not fellow servant of 
 laborer loading rails; Shumway v. Walworth & N. Mfg. Co. 98 Mich. 414, 57 
 N. W. 251, holding superintendent of planing mill not fellow servant of em- 
 ployee by his act of starting planer; Saner v. Lake Shore & M. S. R. Co. 108 ; 
 Mich. 33, 65 N. W. 624 (dissenting opinion), majority holding conductor of con- 
 struction train not fellow servant of extra section gang thereon; Mikolojczak v. 
 North American Chemical Co. 129 Mich. 86, 88 N. W. 75, holding department 
 foreman and servant working under him breaking down salt, fellow servants; 
 McLaine v. Head & D. Co. 71 N. H. 307, 52 Atl. 545 (dissenting opinion), ma- 
 jority holding master not liable for injury of servant in trench through negli- 
 gence of foreman: Milbourne v. Arnold Electric Power Station Co. 140 Mich. 319,. 
 70 L.R.A. 600, 103 N. W. 821, holding electric railway liable to employee engaged 
 in construction for injuries caused by reason of negligence of general superin- 
 tendent and manager; Milbourne v. Arnold Electric Power Station Co. 140 Mich. 
 319, 70 L.R.A. 603, 103 N. W. 821, holding general superintendent and manager 
 of an electric railway vice principal and not fellow servant of an employe engaged 
 in the work of construction; La Barre v. Grand Trunk W. R. Co. 133 Mich. 197, 
 198, 94 N. W. 735, holding section hand assisting in loading rails on removing 
 cars temporarily in charge of assistant roadmaster not fellow servant of road- 
 master; Carr v. General Fire Extinguisher Co. 10 Del. Co. Rep. 498, holding that 
 employe invested with master's duty of providing safe ladders is vice-principal. 
 
 Cited in notes (18 L. R. A. 796) as to fellow servants; (18 L. R. A. 824) as 
 to negligent superiors; (50 L. R. A. 433) as to what servants are deemed to be 
 in the same common employment, apart from statutes, where no questions ss 
 to vice principalship arise; (51 L. R. A. 521, 550, 576, 580, 612, 613) as to vice 
 principalship considered with reference to the superior rank of a negligent 
 servant; (54 L. R. A. 39, 42, 43, 72) on vice principalship as determined with 
 reference to the character of the act which caused the injury; (20 Am. St. Rep. 
 368) on who are fellow-servants; (27 Am. St. Rep. 901) on distinction, between 
 fellow servants and vice principals; (75 Am. St. Rep. 585, 587, 588, 589, 592. 593, 
 594, 596, 598, 599, 600, 601, 602, 603, 624, 631) on who is a vice principal. 
 
 Distinguished in Balhoff v. Michigan C. R. Co. 106 Mich. 614, 65 N. W. 592, 
 holding section men not fellow servants of brakemen with respect to duty to re- 
 move ice from track; Schroeder v. Flint & P. M. R. Co. 103 Mich. 216, 29 L. R. 
 A. 323, 50 Am. St. Rep. 354, 61 N. W. 663, holding foreman of gang unloading 
 and leveling dirt on a railroad is a fellow servant of member of gang; Bees- 
 ley v. F. W. Wheeler & Co. 103 Mich. 210, 27 L. R. A. 270, 61 N. W. G58, holding 
 riveter and carpenters under same superintendent engaged in ship building are 
 fellow servants; Morch v. Toledo, S. & M. R. Co. 113 Mich. 157, 71 X. \V. 464, 
 holding section foreman temporarily in charge of work train in place of road 
 master, fellow servant of workman thereon. 
 Master's liability to injured servant. 
 
 Cited in Doyle v. Toledo, S. & N. R. Co. 127 Mich. 98, 54 L. R. A. 463, 89 Am. 
 St. Rep. 456, 86 N. W. 524, holding railroad company running spur track under 
 another's shed liable for injury to brakeman by roof falling when required to go 
 there for cars; Brown v. Ann Arbor R. Co. 118 Mich. 208, 76 N. W. 407, and 
 Louisville, E. & St. L. Consol. R. Co. v. Banning, 131 Ind. 534, 31 Am. St. Rep. 
 447, 31 N. E. 187, both holding servant taken from regular employment for 
 
1373 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 629 
 
 work of another kind in strange place, may assume same not dangerous; Nor- 
 folk Beet-Sugar Co. v. High!, 56 Neb. 168, 76 N. VV. 566, holding master liable 
 for injury to servant ordered to perform work not known by servant to be dan- 
 gerous; Ashman v. Flint & P. M. R. Co. 90 Mich. 571, 51 N. W. 045, holding it 
 to be master's duty to keep track frogs properly blocked; Hayes v. Frederick 
 Stearns & Co. 130 Mich. 292, 89 N. W. 947, holding master liable for injury 
 to unwarned servant caused by falling through open trap in floor. 
 
 Cited in footnote to Missouri P. R. Co. v. Columbia, 59 L. R. A. 399, which 
 holds placing on platform heavy doors blown on track by severe gale not proxi- 
 mate cause of derailment of engine. 
 
 Cited in notes (48 L. R. A. 798) as to liability for injuries received by servant 
 in performance of duties outside the scope of his original contract; (51 L. R. 
 A. 559, 563, 577, 592) as to vice principalship considered with reference to the 
 superior rank of a negligent servant; (54 L. R. A. 39, 42, 43, 72) on vice prin- 
 cipalship as determined with reference to the character of the act which caused 
 the injury. 
 Duties of section men. 
 
 Cited in Roepcke v. Michigan C. R. Co. 100 Mich. 546, 59 N. W. 243, holding 
 that arranging of logs being unloaded from car regular duty of section men. 
 Duty of court as to special questions for jury. 
 
 Cited in Sherwood v. Chicago & W. M. R. Co. 82 Mich. 379, 46 N. W. 773, hold- 
 ing that court cannot refuse to submit special questions presented in unam- 
 biguous form and relating to questions of fact at issue; Hemenway v. Burnham, 
 90 Mich. 230, 51 X. W. 276, holding court must submit special questions, an- 
 swers to which would have been inconsistent with general verdict for plaintiff, 
 if in harmony with defendant's evidence ; Beaudin v. Bay City, 136 Mich. 340, 
 99 N. W. 285, 4 A. & E. Ann. Gas. 248, holding statute authorizes either party 
 to demand submission of pertinent and controlling questions to jury. 
 Assumption of risk. 
 
 Cited in Cristanelli v. Saginaw Min. Co. 154 Mich. 430, 117 N. W. 910, holding 
 servant does not assume the extra hazards which spring from failure of master 
 to exercise reasonable case in providing rule for conduct of his business as to 
 afford his servants reasonable means of protection; Cristanelli v. Saginaw Min. 
 Co. 154 Mich. 430, 117 X. W. 910, holding engineer of a hoist, in so far as the 
 performance of his duty to keep the place safe was concerned, was not a fellow 
 servant of an employe engaged in loading machinery into hoist. 
 
 Cited in notes (24 Am. St. Rep. 323) on servant's right to rely on master's 
 superior knowledge of risk; (97 Am. St. Rep. 896) on right of recovery by em- 
 ployee accepting extra hazardous duties. 
 
 7 L. R. A. 629, FISHER v. XORTHRUP, 79 Mich. 287, 44 N. W. 610. 
 Suit not maintainable by initial of plaintiff's first name. 
 
 Cited in Stever v. Brown, 119 Mich. 199, 77 N. W. 705, holding Chritian name 
 of plaintiff must be given. 
 
 Cited in note (14 L. R. A. 693) on acquisition and use by individual of a name. 
 Question of misnomer, how raised in justice's court. 
 
 Cited in Stever v. Brown. Ill) Mich. 200. 77 X. W. 706, holding motion in 
 justice's court to dismiss for misnomer of plaintiff suing under initial, equivalent 
 to plea in abatement. 
 Plea in abatement. 
 
 Cited in Hirsh v. Fisher, 138 Mich. 99, 101 N. W. 48, as to motion to dismiss 
 being equivalent in justice court to such plea. 
 
7 L.R.A. 630] L. R. A. CASES AS AUTHORITIES, 1374 
 
 7 L. R. A. 630, BETZ v. VERNER, 46 N. J. Eq. 256, 19 Am. St. Rep. 387, 19 
 
 Atl. 206. 
 Rights of mortgagor or mortgagee. 
 
 Cited in Mellick v. Mellick, 47 X. J. Eq. 94, 19 Atl. 870, holding mortgagor 
 before forfeiture has "interest," within statute of frauds, in mortgaged prem- 
 ises; Waterman v. Mackenzie, 138 U. S. 259, 34 L. ed. 927, 11 Sup. Ct. Rep. 334 r 
 holding mortgagee of patent may maintain suit against infringement; McCaleb v.. 
 Goodwin, 114 Ala. 623, 21 So. 967, holding bondholder may enjoin impairment 
 of security. 
 
 Cited in notes (7 L.R.A. 279) on removal of fixtures takes them out of lien 
 of mortgage; (43 Am. St. Rep. 432) on mortgagee's rights and remedies against 
 impairment of security; (109 Am. St. Rep. 437) on mortgagees' right of action 
 against third persons for invasion of their rights; (9 Eng. Rul. Gas. 511) on 
 right to enjoin mortgagor in possession from committing waste; (18 Eng. Rul... 
 Cas. 103) on restriction in equity of mortgagor's rights of ownership. 
 
 Distinguished in Sanford v. Kunkel, 30 Utah, 386, 85 Pac. 363, holding the re- 
 moval of a building by third persons to land other than that on which it was 
 originally erected without the consent or knowledge of owner thereof or me- 
 chanic's lienholders, did not relieve the building in its new location from the 
 liens. 
 
 7 L. R. A. 634, COM. ex rel. ATTY. GEN. v. NEW YORK, L. E. & W. R. CO. 
 132 Pa. 591, 19 Atl. 291. 
 
 Reaffirmed on reargument in Com. v. New York, L. E. & W. R. Co. 139 Pa. 459, . 
 21 Atl. 528, without special discussion. 
 
 Effect of violating: constitutional provision against corporate ownership 
 Of real estate. 
 
 Cited in People ex rel. Atty. Gen. v. Stockton Sav. v. Loan Soc. 133 Cal. 612, 
 85 Am. St. Rep. 225. 65 Pac. 1078, holding constitutional restriction of owner- 
 ship of real estate by corporations prescribing no penalty, does not work escheat; 
 United States v. Delaware & H. Co. 164 Fed. 253 (dissenting opinion), as to 
 effect of such violation. 
 
 Cited in notes (12 L. R. A. 531) on lands held by foreign corporations subject 
 to escheat; (24 L. R. A. 326, 330) on right of foreign corporations to own real 
 estate; (9 L. R. A. 35) on forfeiture of corporate franchise. 
 Effect of ownership of stock in domestic by foreign corporation. 
 
 Cited in White v. Ryan, 15 Pa. Co. Ct. 176, holding act forbidding foreign 
 corporations to own real estate does not prohibit holding stock of domestic cor- 
 porations owning real estate; Postal Teleg. Cable Co. v. Oregon Short Line R. Co. 
 23 Utah, 482, 90 Am. St. Rep. 705, 65 Pac. 735, holding ownership of stock of 
 domestic by foreign corporation does not affect former's rights to maintain con- 
 demnation proceedings. 
 
 Constitutional provision against common carrier's engaging in other 
 business. 
 
 Cited in Hartwell v. Buffalo, R. & P. R. Co. 19 Pa. Co. Ct. 236, 6 Pa. Dist. 215, 
 holding railroad's ownership of mining stock does not constitute engaging in 
 mining. 
 Power of corporation to hold stock in another. 
 
 Cited in Edmunds v. Illinois C. R. Co. 2 111. C. C. 481, holding a railroad 
 corporation can lawfully hold stock in two roads which are competitors of each . 
 other. 
 
1375 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 646 
 
 Escheat of property to state. 
 
 Cited in note (40 L. ed. U. S. 693) on escheat of property to the state. 
 
 7 L. R. A. 638, KILLINGSWORTH v. PORTLAND TRUST CO. 18 Or. 351, 17 
 
 Am. St. Rep. 737, 23 Pac. 66. 
 Power of corporation to act as :iu<-ni. 
 
 Cited in note (33 Am. St. Rep. 248) on powers of corporation. 
 
 Distinguished in Continental Trust Co. v. Peterson, 76 Neb. 415, 107 N. W. 
 786, holding under statute corporation cannot act as administrator. 
 
 7 L. R. A. 640, PRENTISS v. PAISLEY, 25 Fla. 927, 7 So. 56. 
 Marriage relation as affecting? liability of parties. 
 
 Cited in Trapnell v. Conklyn, 37 W. Va. 252, 38 Am. St. Rep. 30, 16 S. E, 
 570, holding husband may act as agent for wife; Graham v. Tucker, 56 Fla. 310, 
 19 L.R.A. (N.S.) 533, 131 Am. St. Rep. 124, 47 So. 563, holding under constitution 
 and laws of Florida a married woman is not liable in an action of tort. 
 
 Cited in footnotes to Henley v. Wilson, 58 L. R. A. 941, which sustains hus- 
 band's common-law liability for wife's torts; Harrisburg Nat. Bank v. Bradshaw, 
 34 L. R. A. 597, which sustains renewal by married woman of accommodation 
 indorsement made before marriage. 
 
 Cited in notes (30 L.R.A. 521) on liability of husband and wife for wife's libel 
 and slander; (131 Am. St. Rep. 138) on liability of married women for torts; 
 (134 Am. St. Rep. 931, 935) on validity of judgments against married women. 
 
 Distinguished in Fritz v. Fernandez, 45 Fla. 332, 34 So. 315, holding in equity 
 wife may become creditor of husband, or of firm of which he is a member and 
 equity will enforce her rights growing out of such relation. 
 Vacation of decree pro confesso. 
 
 Cited in Hancock v. Hancock, 55 Fla. 686, 15 L.R.A. (N.S.) 672, 45 So. 1020* 
 holding divorce rendered upon decree pro confesso may be set aside where the 
 bill states no ground for relief. 
 
 7 L. R. A. 646, TERRITORY v. EVANS, 2 Idaho, 651, 23 Pac. 232. 
 I siisii testimony on second trial. 
 
 Cited in Putnal v. State, 56 Fla. 94, 47 So. 864, holding that in order that 
 former testimony may be provable, it must have been taken in course of judi- 
 cial proceeding in competent tribunal ; State v. Nelson, 68 Kan. 572, 75 Pac. 
 505, 1 A. & E. Ann. Gas. 468, holding the fact that a witness against defendant 
 in a criminal case is outside of the state at the time of the trial and beyond the 
 reach ot process, authorizing the introduction in evidence of testimony given at 
 former trial notwithstanding an opportunity to subpoena the witness may have 
 been neglected by prosecution; State v. Nicholas, 149 Mo. App. 126, 130 S. W, 
 96, holding that evidence taken at former trial of criminal action cannot be in- 
 troduced by state, without showing that witness is dead; Warren v. State, 6; 
 Okla. Crim. Rep. 10, 34 L.R.A. (N.S.) 1126, 115 Pac. 812, holding that testimony 
 of witness on former criminal trial may be given where witness is dead, insane 
 or absent from state if right of cross-examination was afforded at former trial : 
 State v. Walton, 53 Or. 563, 99 Pac. 431, holding testimony of witness given at 
 former trial may be introduced in evidence when such witness is dead or without 
 jurisdiction of court. 
 
 Cited in footnote to People v. Elliott, GO L. R. A. 318, which sustains right to 
 read on second trial testimony of witness dying after first trial. 
 Depositions. 
 
 Overruled in State v. Potter, 6 Idaho, 585, 57 Pac. 431, holding depositions 
 
7 L.R.A. 646] L. R. A. CASES AS AUTHORITIES. 1376 
 
 taken upon preliminary examination, inadmissible on trial of one accused of 
 assault with intent to commit rape. 
 
 7 L. R. A. 649, FOWLER v. SAKS, 7 Mackey, 570. 
 Rig-fats in party wall. 
 
 Cited in Smoot v. Heyl, 34 App. D. C. 482, holding that party walls did not 
 exist at common law, and servitude created by statute must be strictly con- 
 strued. 
 
 Cited in footnotes to Harber v. Evans, 10 L. R. A. 41, which authorizes in- 
 junction against making openings in party wall ; Burr v. Lamaster, 9 L. R. A. 
 637, which holds party wall, and agreement to pay for same on using it, an 
 encumbrance; Clemens v. Speed, 19 L. R. A. 240, which denies to party-wall 
 owners reciprocal easement from support of buildings; Nalle v. Paggi, 13 L. R. 
 A. 50, which holds sale of lot a use of party wall; Putzell v. Drovers & M. Xat. 
 Bank, 22 L. R. A. 632, which upholds right to remove boundary wall for erec- 
 tion of better wall; Lincoln v. Burrage, 52 L. R. A. 110, which holds that 
 grantee's promise to pay part of cost of party wall when used, does not run with 
 land. 
 
 Doubted in Arrick v. Fry, 8 App. D. C. 135. questioning whether under plead- 
 ing alleging negligence in removal and reconstruction of party wall plaintiff was 
 entitled to recover damages under covenant to make good. 
 Responsibility for servant's act. 
 
 Cited in note (8 L. R. A. 464) on master's liability for injuries caused through 
 servant's negligence. 
 Estoppel l>y receiving 1 benefit. 
 
 Cited in Carpenter v. Reliance Realty Co. 103 Mo. App. 501, 77 S. W. 1004, 
 holding construction company not estopped by giving notice of intention to exca- 
 vate under ordinance, from asserting its invalidity. 
 Delegation of obligation imposed by law. 
 
 Cited in St. Louis & S. F. R. Co. v. Madden, 77 Kan. 85, 17 L.R.A. (N.S.) 791, 
 93 Pac. 586, holding one who has a piece of work to perform which is in its 
 nature dangerous to others cannot delegate the obligation to an independent 
 contractor and escape liability. 
 
 Cited in notes (65 L.R.A. 852) on liability for injuries caused by performance 
 of work by independent contractor which is dangerous unless certain precautions 
 are observed; (66 L.R.A. 124) on liability for acts of independent contractor 
 where injuries result from nonperformance of absolute duties of employer. 
 
 7 L. R. A. 656, JOHNSON v. LEMAN, 131 111. 609, 19 Am. St. Rep. 63, 23 N. 
 
 E. 435. 
 Trust estate not bound by trustee's contracts. 
 
 Cited in Goodman v. Lee, 40 111. App. 230, holding trust estate not chargeable 
 with services rendered under contract with trustee; Dinsmoor v. Bressler, 56 111. 
 App. 213, holding person employed by solvent trustee not stipulating against 
 personal liability without court order cannot recover from estate; Rand, McN. 
 & Co. v. Francis, 67 111. App. 226, holding neither court nor assignee for cred- 
 itors can bind estate for future rent; Chicago Fire Place Co. v. Tait. 58 111. App. 
 295, holding acceptance of lease by receiver does not affect liability of estate; 
 Rickel v. Chicago, R. I. & P. R. Co. 112 Iowa, 152, 83 N. W. 957, holding admin- 
 istrator's contract for attorney's services not binding on estate; McAuley v. 
 O'Connor, 92 111. App. 593, holding executor's contract for attorney's services not 
 binding on estate; Valley Nat. Bank v. Crosby, 108 Iowa, 654, 79 N. W. 383, 
 
1371 - L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 658 
 
 holding administrator cannot bind estate for money borrowed, but not used, for 
 repairs. 
 
 Cited in note (52 Am. St. Rep. 122) on liabilities of estates of decedents on 
 contracts and for torts of personal representatives. 
 Trustee personally liable. 
 
 Cited in Bradner, S. & Co. v. Williams, 178 111. 425, 53 N. E. 358, holding 
 assignee for creditors personally liable, in absence of contrary agreement, on con- 
 tract for estate; Truesdale v. Philadelphia Trust, S. D. & Ins. Co. 63 Minn. 52, 
 
 65 N. W. 133, holding solvent trustee of bond holders not stipulating against 
 personal liability, liable for attorney's services; Briggs v. Breen, 123 Cal. 660, 56 
 Pac. 633, holding in absence of contrary agreement executors liable for services 
 of attorneys; Meyers v. Cohn, 4 Misc. 186. 23 N. Y. Supp. 996, holding guardian 
 personally liable for commissions of broker employed in purchase of real estate 
 for infants; McGovern v. Bennett, 146 Mich. 562, 109 N. W. 1055, holding de- 
 fendant by contracting as trustee made himself personally liable for commission 
 agreed upon for sale of land of estate. 
 
 Cited in notes (27 Am. St. Rep. 941) on personal liability of trustee; (25 Eng. 
 Rul. Cas. 336) on liability of trustee for losses. 
 
 Distinguished in Empire Fire Proofing Co. v. Comstock, 121 111. App. 526, hold- 
 ing where it appears from the contract in question, but the manner in which it is 
 signed, as well as by surrounding circumstances that the parties signing the 
 same as trustees were not acting for themselves, but for the trust estate, the 
 latter only is bound and not the trustees in their personal capacities. 
 
 Disapproved in United States Fidelity & Guaranty Co. v. People, 44 Colo. 
 571, 98 Pac. 828, holding executor or administrator, is entitled to be reimbursed 
 from estate, through order of court, .for money paid out for proper and reason- 
 able services of other persons. 
 Trustee's lien on trust estate. 
 
 Cited in Sherman v. Leman, 137 111. 98, 27 N. E. 57, holding trustee has lien 
 on trust estate for expenses of litigation determining appointment invalid. 
 
 Annotation cited in Shirkey v. Kirby, 110 Va. 458, 135 Am. St. Rep. 949, 
 
 66 S. E. 40, holding that court on application of trustee has power to secure 
 loan for necessary repairs and payment of inheritance tax on corpus pf estate 
 held in trust as home for parents and children, with remainder to children. 
 
 7 L. R. A. 658, WINTERS v. DE TURK, 133 Pa. 359, 19 Atl. 354. 
 When statute of limitations begins to rnn. 
 
 Cited in Matlack v. Mutual L. Ins. Co. 37 W. X. C. 528, holding statute of 
 limitations does not run on beneficiary's right of action to avoid forfeiture of life 
 insurance until insured's death; Britt v. Gordon, 132 Iowa, 440, 108 N. W. 319, 
 11 A. & E. Ann. Cas. 407, holding statute requiring application for admeasure- 
 ment of dower to be brought within ten years after death of spouse does not ap- 
 ply to action in equity or for the partition of a distributive share, but the 
 general statute of limitations applies to such actions; Wilcox v. Wilcox, 139 
 Mich. 370, 102 N. W. 954, as to when limitations begin to run against wifes 
 dower. 
 
 Disapproved in Lucas v. White, 120 Iowa, 739, 98 Am. St. Rep. 380, 95 N. W. 
 209, holding under statute providing that limitations at time of accrual of cause 
 of action the statute of limitations against a wife's right of dower does not 
 begin to run after her husband's death. 
 L.R.A. Au. Vol. I. 87. 
 
7 L R.A. 658] L. E. A. CASES AS AUTHORITIES. 1378 
 
 Dower right. 
 
 Cited in note (18 L. R. A. 79) on power of husband or his creditors to defeat 
 wife's dower. 
 
 7 L. R. A. 661, CREW v. BRADSTBEET CO. 134 Pa. 161, 19 Am. St. Rep. 681, 
 
 19 Atl. 5GO. 
 Liability of mercantile agency for false report. 
 
 Cited in footnote to Dun v. City Nat. Bank, 23 L. R. A. 687, which holds mer- 
 cantile agency not liable for false report by subagent. 
 Contracts against liability for negligence. 
 
 Cited in Denver Public Warehouse Co. v. Hunger, 20 Colo. App. 58, 77 Pac. 
 5, holding contracts restricting liability for negligence are strictly construed 
 against party seeking the exemption. 
 
 7 L. R. A. 663, REHFUSS v. MOORE, 134 Pa. 462, 19 Atl. 756. 
 Sufficiency of schedule in limited partnership. 
 
 Cited in Haslet v. Kent, 160 Pa. 88, 34 W. X. C. 58, 28 Atl. 501, holding 
 schedule of property of limited partnership including items of notes and accounts 
 payable and bills receivable, insufficient; Laflin & R. Powder Co. v. Steytler, 146 
 Pa. 443, 14 L. R. A. 695, 29 W. X. C. 233, 14 Atl. 215, holding description of 
 several parcels of land as one tract, and buildings, engines, etc., as one entire 
 plant, sufficient; Wood v. Sloman, 150 Mich. 189, 114 X. W. 317, holding 
 schedule of two dollars cash and $499,998 as value of a formula was not sufficient, 
 it being vague and not in good faith. 
 Taxability of capital invested in patents. 
 
 Cited in Com. v. Westinghouse Electric & Mfg. Co. 151 Pa. 267, 24 Atl. 1107, 
 holding capital of company invested in patent rights not taxable by state. 
 Letters patent as property. 
 
 Cited in Messinger v. Knappenberger, 12 Xorth. Co. Rep. 381, 38 Pa. Co. Ct. 
 331, 20 Pa Dist. R. 909, to the point that letters patent is properly subject to 
 order in judgment creditor's action. 
 
 7 L. R. A. 666, COM. v. GARDNER, 133 Pa. 284, 19 Am. St. Rep. 645, 19 Atl. 550. 
 What constitutes "peddling." 
 
 Approved in Lehighton v. Smith, 7 Northampton Co. Rep. 193, 6 Lack. L. 
 News, 196, 9 Pa. Dist. R. 430, and South Easton v. Moser, 14 Lane. L. Rev. 238, 
 holding milkman delivering milk to regular customers, not hawker or peddler; 
 Irwin v. Douglass, 8 Pa. Dist. R. 506, 30 Pittsb. L. J. N. S. 108; Lansford v. 
 Wertman, 18 Pa. Co. Ct. 470, both holding farmer selling his own products, not 
 hawker or peddler; Com. v. Roenick, 31 Pittsb. L. J. X. S. 192, hoi-ding butcher 
 incidentally selling meats from the wagon, not peddler; Com. v. Hepner, 22 Pa. 
 Co. Ct. 632, holding butcher selling meat to customers not within ordinance 
 against hawking, peddling or selling merchandise; Com. v. Deinno, 20 Pa. Co. Ct. 
 371, holding fruit dealer selling purchased products by outcry through streets 
 and calling at houses, hawker or peddler; Re Wilson, 8 Mackey, 348, 12 L. R. A. 
 625, holding peddler need not be personally interested in sales, to be within 
 legislative description; State v. Hoffman, 50 Mo. App. 589 (dissenting opinion), 
 majority holding one going from house to house taking orders from samples 
 vvnich are filled by employer if approved, not peddler; Stamford v. Fisher, 63 
 Hun, 127, 17 N. Y. Supp. 609, holding one carrying goods for filling prior orders, 
 not peddler; Horn v. Com. 2 Pa. Dist. R. 176, 10 Lane. L. Rev. 24, 12 Pa. Co. Ct. 
 285, holding resident merchant selling by sample or receiving and filling orders 
 
1379 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 666 
 
 in other counties, not hawker or peddler; New Castle v. Cutler, 15 Pa. Super. Ct. 
 {525. holding uniformity of taxation clause not violated by exemption of farmers, 
 gardeners, or others raising, marketing, and selling their own produce, from opera- 
 tion of peddling law; Com. v. Morgan, 10 Pa. Co. Ct. 292, holding agent within 
 proviso of peddling act excepting sales by manufacturers of their own goods; 
 South Easton v. Moser, 14 Lane. L. Rev. 238, holding farmer delivering milk in 
 borough not subject to ordinance requiring license fee from peddlers. 
 
 Cited in Kansas City v. Overton, 68 Kan. 565, 75 Pac. 549, holding a city ordi- 
 nance imposing a license tax upon hucksters and hawkers is not invalid because 
 it exempts from its operation persons selling the products of their own or leased 
 lands: St. Louis v. Meyer, 185 Mo. 600, 84 S. W. 914, holding a farmer who takes 
 his farm products to a city and sells them from place to place not a peddler under 
 statute; Com. v. Hunsicker, 30 Pa. Co. Ct, 629, 14 Pa. Dist. R. 545: Com. v, 
 Roenick. 10 Pa. Dist. R. 52, holding butcher whose principal business is selling 
 beef, slaughtered by himself, at his shop and also from his wagon not a hawker 
 or a peddler under ordinance prohibiting same. 
 
 Cited in footnotes to Hewson v. Englewood, 21 L. R. A. 736, which holds agent 
 delivering from wagon goods previously ordered, and taking other orders, not a 
 peddler; Emmons v. Levvistown, 8 L. R. A. 328, which holds book canvassers not 
 peddlers; State v. Wells, 48 L. R. A. 99, which holds one soliciting orders for 
 goods, and carrying goods to fill previous sales, not a peddler; Stuart v. Cunning- 
 ham, 20 L. R. A. 430, which holds one delivering goods previously sold by another 
 not a peddler. 
 
 Cited in note (8 L. R. A. 873) as to hawking and peddling. 
 
 Distinguished in Com. v. Feinberg, 3 Pa. Dist. R. 362, 13 Pa. Co. Ct. 528, 24 
 Pittsb. L. J. N. S. 132, holding exemption of manufacturers from penalties for 
 hawking and peddling, extends to their agents. 
 Hiiilit to peddle. 
 
 Approved in Titusville v. Brennan, 143 Pa. 646, 14 L. R. A. 101, 3 Inters. Com. 
 Rep. 736, 24 Am. St. Rep. 580, 28 W. N. C. 538, 22 Atl. 893, holding law regu- 
 lating peddling, valid; Com. v. Deinno, 20 Pa. Co. Ct. 371, sustaining validity of 
 special statute forbidding hawking or peddling of purchased products; Sayre v. 
 Phillips, 30 W. X. C. 197, holding ordinance prohibiting unlicensed peddling, 
 proper police regulation; Brownback v. North Wales (omitted from official re- 
 port in 194 Pa. 609),. 49 L. R. A. 446, footnote, p. 446, 45 Atl. 660, Affirming 10 
 Pa. Super. Ct. 229, 44 W. X. C. 259, holding ordinance for licensing of persons 
 selling in streets or soliciting orders, not invalid as to residents because dis- 
 criminating in favor of nonresidents; Sayre v. Phillips, 148 Pa. 488, 16 L. R. A. 
 50, 33 Am. St. Rep. 842, 24 Atl. 76, holding peddling ordinance which establishes 
 a prohibitory license fee except as to residents, void; Port Clinton v. Shafer, 18 
 Pa. Co. Ct. 69, 14 Lane. L. Rev. 29, 5 Pa. Dist. R. 585, denying validity of regu- 
 lation by borough of occupation prohibited by statute. 
 
 Cited in People v. Thomson, 103 Mich. 83, 61 X. W. 345, raising but not de- 
 ciding questions as to validity of peddling ordinance; Com. ex rel. Adderton v. 
 Gombert, 26 Pa. Co. Ct. 408, holding special statutes relating to hawking and 
 peddling, unrepealed; Re Snyder, 10 Idaho, 697, 68 L.R.A. 714, 79 Pac. 819, 
 holding ordinance prohibiting farmer from selling products of his farm invalid: 
 Com. ex rel. Adderton v. Gombert, 11 Pa. Dist. R. 436, as to constitutionality 
 of act prohibiting peddling; Warden's License, 24 Pa. Super. Ct. 76, holding 
 ordinance against peddling valid exercise of police power. 
 
 Cited in footnote to Rosenbloom v. State, 57 L. R. A. 923, which sustains license 
 tax on peddlers, though vendors of own products exempt; West Easton v. Zuck t 
 
7 L.R.A. 666] L. R. A. CASES AS AUTHORITIES. 1380 
 
 8 Northampton Co. Rep. 119, upholding validity of ordinance providing for 
 license fee for sale of food products; Mt. Carmel v. Fisher, 21 Pa. Super. Ct. 
 646, upholding validity of ordinance providing for curbstone market on certain 
 days of the week only; Saulsbury v. State, 43 Tex. Crim. Rep. 95, 96 Am. St. Rep. 
 837, 63 S. W. 568, holding statute requiring peddlers to take out license not a 
 violation of Federal Constitution. 
 
 Cited in note (48 Am. St. Rep. 237) on equality of right as to peddlers. 
 Prohibition of peddling; as regulation of commerce. 
 
 Approved in Com. v. Dunham, 191 Pa. 74, 44 W. N. C. 101, 43 Atl. 84, Affirm- 
 ing 4 Pa. Super. Ct. 76, holding that legislation regulating hawking and peddling, 
 proper exercise of police power; Emert v. Missouri, 156 U. S. 309, 39 L. ed. 433, 5 
 Inters. Com. Rep. 76, 15 Sup. Ct. Rep. 367, Affirming State v. Emert, 103 Mo. 
 250, 11 L. R. A. 221, 3 Inters. Com. Rep. 529, 23 Am. St. Rep. 874, 15 S. W. 81, 
 holding undiscriminating statute for licensing of peddlers, not regulation of com- 
 merce as to goods previously sent by foreign manufacturers; Bloomington v. 
 Bourland, 137 111. 537, 3 Inters. Com. Rep. 669, 31 Am. St. Rep. 382, 27 N. E. 692, 
 holding ordinance prohibiting unlicensed soliciting of orders for books by agent 
 of foreign wholesaler, void; People v. Sawyer, 106 Mich. 431, 64 X. W. 333, hold- 
 ing sale by resident from general stock, and not in original package, does not 
 involve interstate commerce; Re Wilson, 8 Mackey, 358, 12 L. R. A. 628, holding 
 license tax on peddlers not necessarily regulation of interstate commerce; State 
 v. Hoffman, 50 Mo. App. 590 ( dissenting opinion), raising without deciding ques- 
 tion of regulation of peddling as exercise of police power. 
 
 Cited in Re Lipschitz, 14 N. D. 630, 95 N. W. 157, holding act taxing hawking 
 and peddling not open to objection that it authorizes a tax on interstate com- 
 merce; Kinsell v. Weiss, 20 Pa. Dist. R. 217, to the point that act of 1846 
 prohibited hawking or peddling of foreign or domestic goods in county of 
 Schuylkill; Re Stetler, 21 Montg. Co. L. Rep. 168, holding that act of 1846 
 prohibits peddling in Montgomery county and is within police power. 
 
 Cited in notes (12 L. R. A. 624) as to power of Congress to regulate inter- 
 state commerce; (14 L. R. A. 98), as to peddlers and drummers as related to 
 interstate commerce; (60 L. R. A. 692) as to corporate taxation and the com- 
 merce clause; (19 L.R.A. (X.S.) 302) on license of occupation tax on hawkers, 
 peddlers, and persons engaged in soliciting orders by sample or otherwise, as 
 violating the commerce clause; (27 Am. St. Rep. 563) on state regulation of 
 licenses as interference with interstate commerce; (78 Am. St. Rep. 250) on 
 power of legislature to declare hawking and peddling criminal; (129 Am. St. Rep. 
 277 Y on constitutional limitations on power to impress license or occupation 
 taxes; (39 L. ed. U. S. 540) on state taxation and licenses as affecting interstate 
 commerce; (46 L. ed. U. S. 785) on peddlers and drummers as related to inter- 
 state commerce. 
 
 Distinguished in McLaughlin v. South Bend, 126 Ind. 473, 10 L. R. A. 358, 
 footnote, p. 357, 26 X. E. 185, which holds requirement of peddling license unen- 
 forceable against person negotiating for sale of property in other state. 
 Police power. 
 
 Cited in Mallie v. Yeadon, 10 Del. Co. Rep. 534, holding that ordinance pre- 
 scribing fee for permit to bury body is valid police regulation. 
 
 Cited in note (25 Am. St. Rep. 887) on validity of police regulation of modes 
 and places of doing business. 
 
1381 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 673 
 
 7 L. R, A. 669, CITIZENS' LOAN, FUND & SAV. ASSO. v. FRIEDLEY, 123 
 
 Ind. 143, 18 Am. St. Rep. 320, 23 X. E. 1075. 
 Professional responsibility Of attorney. 
 
 Cited in Kepler v. Jessup, 11 Ind. App. 255, 37 X. E. G55, holding attorney 
 responsible only for ordinary care and skill, with reference to business under- 
 taken; Hill v. Mynatt (Tenn. Ch. App.), 52 L. R. A. 894, 59 S. W. 163, holding 
 attorney not liable to client for determination to proceed in pending state action, 
 instead of abandoning and proceeding in Federal court; Xickless v. Pearson, 126 
 Ind. 490, 26 N. E. 478, by Coffey, J., dissenting, on point that attorney is liable 
 to client for ignorance or unskilfulness in managing business. 
 
 Cited in notes (52 L.R.A. 883, 889) on liability of attorney to client for 
 mistake; (24 Eng. Rul. Cas. GG8, 669) on liability of solicitor. 
 Of physician. 
 
 Cited in Logan v. Field, 75 Mo. App. 601, holding liability of physicians for 
 professional error governed by same rule as that applying to attorneys. 
 Presumption of knowledge of law. 
 
 Cited in State ex rel. Worrell v. Peelle, 124 Ind. 521, 8 L. R. A. 231, 24 N. E. 
 440, holding that presumption of governor's knowledge of law does not change 
 into appointment to office within his sole power of appointment, a commission 
 reciting an election by legislature. 
 
 7 L. R. A. 671, JELLETT v. RHODE, 43 Minn. 166, 45 N. W. 13. 
 Lease; statute of frauds. 
 
 Followed in Wickson v. Monarch Cycle Mfg. Co. 128 Cal. 160, 79 Am. St. Rep. 
 36, 60 Pac. 764, and Engler v. Schneider, 66 Minn. 389, 69 N. W. 139, holding 
 oral contract for lease of land for one year to commence in the future, void. 
 
 Cited in Cram v. Thompson, 87 Minn. 174, 91 N. W. 483, holding void agree- 
 ment to execute lease for one year commencing in futuro, void ; Johnson v. Albert- 
 son, 51 Minn. 335, 53 X. W. (542, holding oral lease, void under statute of frauds, 
 not evidence of duration of term; Brosius v. Evans, 90 Minn. 523, 97 N. W. 373, 
 holding void, oral contract for leasing of premises not to be executed within one 
 year. 
 
 Cited in notes (10 L. R. A. 727) on lease within statute of frauds; (8 L. R. A. 
 221) on tenancy from year to year; how created. 
 
 7 L. R. A. 673, SWAXSON v. MISSISSIPPI & R. RIVER BOOM CO. 42 Minn. 
 
 , 532, 44 X. W. 986. 
 Private right of action for public nuisance. 
 
 Cited in Lammers v. Brennan, 46 Minn. 211, 48 N. W. 766, holding action 
 will not lie for damages sustained in performing contract to drive logs down 
 stream, because of obstruction existing before contract was made; Aldrich v. 
 Wetmore, 52 Minn. 109. 53 X. W. 1072, holding action for obstructing street may 
 be maintained by adjacent proprietor, although access to premises not entirely 
 cut off; Lakkie v. Chicago, St. P. M. & O. R. Co. 44 Minn. 440, 46 N. W. 912, 
 holding laying railroad track in street does not give adjacent proprietor right of 
 action for obstructing street, when access to premises not impaired: Webster 
 v. Harris, 111 Tenn. 668, 59 L.R.A, 330, 69 S. W. 782, holding like 20 miles long, 
 with no proper channels to make navigation available, not navigable; Guilford 
 v. Minneapolis & St. L. R. Co. 94 Minn. 109, 302 X. W. 365, holding that a private 
 person cannot maintain an action for the obstruction of a public highway un- 
 less damaged in a special way not common to the public; Pedrick v. Raleigh & P. 
 S. R. Co. 143 N. C. 498, 10 L.R.A.(X.S.) 559, 55 S. E. 877, holding that a private 
 
7 L.R.A. 673] L. R. A; CASES AS AUTHORITIES. 1382 
 
 person may not maintain an action for an obstruction of a navigable river unless 
 he suffers some special wrong; Drake v. Sault Ste Marie Pulp & Paper Co. 25 
 Ont. App. Rep. 259, holding that riparian fisherman can maintain action for dam- 
 ages from obstruction of navigable stream. 
 
 Cited in footnotes to South Carolina S. B. Co. v. Wilmington, C. & A. R. Co. 
 33 L. R. A. 541, which denies steamboat owner's right of action for obstructing 
 navigation of river; Reyburn v. SaAvyer, 65 L.R.A. 931, which sustains right of 
 owner of island to injunction against maintenance of fishing nets in adjoining 
 waters so as to obstruct navigation. 
 
 Cited in notes (39 L. R. A. 493) on private right of action against boom owner; 
 (13 L. R. A. 828) on enforcement of rights of riparian proprietor m navigable 
 stream in equity; (59 L. R. A. 85, 90) on injury to riparian rights from obstruc- 
 tion to navigable stream; (38 L.R.A. (N.S. ) 765) on private right of action for 
 obstruction of navigable stream; (57 Am. St. Rep. 696, 701) on remedies for ob- 
 struction of navigable waters. 
 
 Distinguished in Viebahn v. Crow Wing County, 96 Minn. 281, 3 L.R.A. (N.S.) 
 1129, 104 N. W. 1089, holding that persons operating a line of steamboats upon 
 a river suffered such a special damage by the obstruction of the stream, that 
 they could recover therefor. 
 
 Overruled in effect in Page v. Mille Lacs Lumber Co. 53 Minn. 498, 55 N. W. 
 608, holding person suffering special damage from obstruction of navigable 
 stream has right of action, although injury same in kind as that suffered by 
 public. 
 Right to abate public nuisance. 
 
 Cited in footnotes to Griffith v. Holman, 54 L. R. A. 178, which denies private 
 individual's right to abate public nuisance consisting of fence across navigable 
 stream; State v. Stark, 54 L. R. A. 910, which denies right of private person to 
 abate liquor nuisance without process of law. 
 Relation of state to navigable waters. 
 
 Cited in footnote to St. Louis, I. M. & S. R. Co. v. Ramsey, 8 L. R. A. 559, 
 which holds title to land under navigable river in state. 
 
 Cited in notes (12 L. R. A. 673) on state sovereignty over inland navigable 
 rivers; (12 L. R. A. 632) on navigable waters as public highways. 
 Test of navigability of rivers. 
 
 Cited in Minnesota Canal & Power Co. v. Coochiching Co. 97 Minn. 440, 5 
 L.R.A. (N.S.) 644, 107 X. W. 405, 7 A. & E. Ann. Gas. 1182, on what constitutes 
 xiavigability in a stream. 
 
 Cited in footnote to Heyward v. Farmers' Min. Co. 28 L. R. A. 42, which 
 holds navigable capacity test of navigability. 
 
 7 L. R. A. 678, EVANS v. ADAMS EXP. CO. 122 Ind. 362, 23 N. E. 1039. 
 Contributory negligence and supervening negligence. 
 
 . Cited in Cincinnati, I. St. L. & C. R. Co. v. Grames, 8 Ind. App. 136, 34 N. 
 E. 613, holding injured man driving slowly upon track, after listening and look- 
 ing, with view partly obstructed, exercised care commensurate with danger; In- 
 niana, I. & I. R. Co. v. Bundy, 152 Ind. 597, 53 N. E. 175, holding jury should 
 determine whether brakeman coupling cars assumed risk of uncovered signal 
 wires close to ground and unknown to him; Krenzer v. Pittsburg, C. C. & St. 
 L. R. Co. 151 Ind. 616, 68 Am. St. Rep. 252, 52 N. E. 220 (dissenting opinion), 
 majority holding that child seven and one half years old, asleep in street on 
 railway track, contributed to his injury; DeLon v. Kokomo City Street R. Co. 
 22 Ind. App. 380, 53 N. E. 847, holding plaintiff's negligence in crossing track 
 
1383 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 678 
 
 ahead of car proximate cause of injury; Summit Coal Co. v. Shaw, 1C Iml. 
 App. 16, 44 N. E. 676, holding employer's negligence excusing contributory neg- 
 ligence of employee must be committed after knowledge of employee's danger; 
 Louisville & N. R. Co. v. Cronbach, 12 Ind. App. 675, 41 N. E. 15, holding in- 
 testate's negligence in walking on track without looking or heeding, contrib- 
 uted to his death; Citizens' Street R. Co. v. Stoddard, 10 Ind. App. 285, 37 N. 
 E. 723, holding sick mother not necessarily at fault in sending small child across 
 street on necessary errand; Indiana Stone Co. v. Stewart, 7 Ind. App. 566, 34 
 N. E. 1019, holding instruction that contributory negligence would not exonerate 
 defendant is so radically wrong that it cannot be cured by withdrawal ; Citi- 
 zens' Street R. Co v. Spahr, 7 Ind. App. 29, 33 N. E. 446, holding not negligence 
 per se to board a moving car; Levey v. Bigelow, 6 Ind. App. 693, 34 N. E. 128, 
 holding danger in removing ink roller from press was obvious, and employee 
 guilty of contributory negligence; Mann v. Belt R. & Stock Yard Co. 128 Ind. 
 141, 26 N. E. 819, holding driver of vehicle struck by train approaching from di- 
 rection in which view unobstructed for quarter of mile, guilty of contributory 
 negligence; Conner v. Citizens' Street R. Co. 146 Ind. 440, 45 N. E. 662, holding 
 instruction not objectionable as asking jury to decide law where negligence had 
 been defined; Citizens Street R. Co. v. Haner, 29 Ind. App. 432, 62 N. E. 658. 
 holding that contributory negligence of child will not defeat recovery, where 
 motorman could have prevented injury after discovery of child's peril ; Acton v. 
 Fargo & M. Street R. Co. 20 X. D. 446, 129 X. W. 225, holding that person may 
 recover for injury although he himself was negligent where defendant after be- 
 coming aware of the danger failed to use proper degree of care to avoid injury; 
 Morgan v. Pleshek, 120 Wis. 309, 97 N. W. 916, holding persons using the public 
 .streets must exercise reasonable care to avoid collisions with persons or vehicles; 
 Indianapolis Street R. Co. v. Schmidt, 35 Ind. App. 211, 71 N. E. 663, holding 
 where driver of wagon sees man standing on street crossing, and has reason- 
 able ground for apprehending he is unconscious of his danger, he is liable for 
 driving against him, notwithstanding antecedent negligence; Borg v. Spokane 
 Toilet Supply Co. 50 Wash. 206, 19 L.R.A. (X.S.) 164, 96 Pac. 1037, holding 
 contributory negligence of pedestrian crossing street diagonally in middle 
 of block in front of team he saw approaching at rate of six or eight miles an 
 hour, precluded recovery for injuries; Southern Indiana R. Co. v. Fine, 163 Ind. 
 626, 72 X. E. 589, holding notwithstanding negligence of workman in assuming 
 dangerous position a recovery may be had where conductor started train without 
 giving notice to workman; dissenting opinions in Robards v. Indianapolis Street 
 R. Co. 32 Ind. App. 308, 67 X. E. 953; Indianapolis Street R. Co. v. O'Donnell, 
 35 Ind. App. 326, 73 X. K. 1G3, on contributory negligence as defense; Indian- 
 apolis Street R. Co. v. Tenner, 32 Ind. App. 327, 67 N. E. 1044 (dissenting 
 opinion), what constitutes contributory negligence. 
 
 Cited in footnote to State v. Lauer, 20 L. R. A. 61, which holds it contributory 
 negligence to leave surveyor's transit set up in street. 
 
 Cited in notes (17 L. R. A. 12o) on contributory negligence of traveler in de- 
 viating from usual thoroughfare; (11 L. R. A. 130; 12 L. R. A. 280) on contrib- 
 utory negligence of passenger defeating recovery for injury; (8 L. R. A. 84) on 
 co-operating causes of injury; (19 L.R.A. (N.S.) 165) on duty of pedestrian on 
 public street to avoid passing teams; (33 L.R.A.(X.S-) 785) on voluntary ob- 
 struction of view while on highway as contributory negligence; (24 Am. St. Rep. 
 398) on contributory negligence as bar to recovery. 
 
 Distinguished in Jones v. Swift, 30 Wash. 469, 70 Pac. 1109, holding negli- 
 gence in knocking barrels and boards into manhole by driving against them 
 not excused because same were not securely fastened. 
 
7 L.R.A. 681] L. R. A. CASES AS AUTHORITIES. 1384 
 
 7 L. R. A. 681, QUILL v. INDIANAPOLIS, 124 Ind. 292, 23 N. E. 788. 
 Notice of hearing 1 on local assessments. 
 
 Cited in Charles v. Marion, 100 Fed. 540, holding act which does not pro- 
 vide for notice for hearing to determine actual benefits for local improvements, 
 invalid; Adams v. Shelbyville, 154 Ind. 481, 49 L. R. A. 803, 77 Am. St. Rep. 
 484, 57 N. E. 114, holding publication of notice to make objection to necessity for 
 construction of public improvement, sufficient; Dugger v. Hicks, 11 Ind. App. 382, 
 36 N. E. 1085, holding special finding that notices published as provided in 
 statute, sufficient to uphold conclusion of trial court; McEneney v. Sullivan, 
 125 Ind. 410, 25 N. E. 540, holding notice provided by act for street improvement 
 sufficient; Barber Asphalt Paving Co. v. Edgerton, 125 Ind. 463, 25 N. E. 436, 
 holding published notice for hearing objections to report of cost of work after 
 completion, sufficient; Klein v. Tuhey, 13 Ind. App. 75, 40 N. E. 144, holding pub- 
 lication of notice from September 2 to September 16, both inclusive, is two 
 weeks' publication; Pittsburgh, C. C. & St. L. R. Co. v. Fish, 158 Ind. 527, 63 
 N. E. 454, holding notice of primary resolution of necessity for improvement not 
 necessary to validity of assessment; Edwards v. Cooper, 168 Ind. 66, 79 N. E. 
 1047, holding the legislature has power to provide for drainage without grant- 
 ing a hearing on the need thereof to those residing in the taxing districts; 
 Brown v. Central Bermudez Co. 162 Ind. 456, 69 N. E. 150, holding it is not 
 the notice of the passage of the declaratory resolution which gives jurisdiction 
 over the persons of the property owners; Pennsylvania Co. v. Cole, 132 Fed. 685, 
 on construction of statute requiring public notice of proposed improvements. 
 Limitation of public indebtedness. 
 
 Cited in Porter v. Tipton, 141 Ind. 350, 40 N. E. 802, holding act providing 
 for payment of improvement out of assessments against property owners in ten 
 annual instalments does not contemplate charging cost primarily against city; 
 Laporte v. Gamewell Fire Alarm Teleg. Co. 146 Ind. 471, 35 L. R. A. 689, 58 
 Am. St. Rep. 359, 45 N. E. 588, holding obligations payable only out of fund, 
 and not by municipality generally, not within inhibition against indebtedness; 
 Braun v. Benton County, 17 C. C. A. 169, 34 U. S. App. 393, 70 Fed. 370, Affirm- 
 ing 66 Fed. 482, holding gravel-road bonds not county indebtedness; Joliet v. 
 Alexander, 194 111. 465, 62 N. E. 861, holding certificates for waterworks ex- 
 tension indebtedness of city though payable out of particular fund; Baker v. 
 Seattle, 2 Wash. 583, 27 Pac. 462, holding street improvement warrants payable 
 out of street improvement funds no part of indebtedness within constitutional 
 inhibition; Kansas City v. Ward, 134 Mo. 186, 35 S. W. 600, holding city agent 
 only to collect park certificates so that they are not indebtedness within consti- 
 tutional inhibition; Reynolds v. Waterville, 92 Me. 327, 42 Atl. 553 (dissenting 
 opinion), majority holding that act providing for city hall commission, scheme 
 to get around inhibition against indebtedness; Defrees v. Ferstl, 154 Ind. 698, 
 57 N. E. 296 (dissenting opinion), to point that no city debt results from street 
 improvement contract until making of estimates from time to time, or of final 
 estimate; Allen v. Davenport, 107 Iowa, 111, 77 N. W. 532, holding contract for 
 street improvement for definite sum, when city indebted to full amount, void; 
 Cason v. Lebanon, 153 Ind. 575, 55 N. E. 768, holding contract for city im- 
 provement not indebtedness of city within constitutional inhibition; Wilcoxon 
 v. Bluffton, 153 Ind. 278, 54 N. E. 110, holding school building bonds part of 
 city debt to be included in aggregate amount of indebtedness relative to con- 
 stitutional inhibition; Kirsch v. Braun, 153 Ind. 257, 53 N. E. 1082, holding 
 county not liable on gravel-road bonds, payable only out of assessments on prop- 
 erty benefited, not negotiable; Monroe County v. Harrell, 147 Ind. 508, 46 N. 
 E. 124, holding gravel-road bonds payable out of assessments on benefited prop- 
 
1385 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 681 
 
 rty not indebtedness within constitutional inhibition; Switzerland County v. 
 Reeves, 148 Ind. 473, 46 X. E. 995, holding bands for construction of gravel roads 
 not debt of township, and thus within constitutional inhibition; New Albany 
 v. McCulloch, 127 Ind. 505, 26 N. E. 1074, holding municipal corporation not 
 excused from repair of defective sidewalk because indebted' to constitutional 
 limit; Heinl v. Terre Haute, 161 Ind. 49, 66 N. E. 450, holding debt created by 
 school city not part of indebtedness of civil city, where created without author- 
 ity of latter; Swanson v. Ottumwa, 118 Iowa, 174, 59 L. R. A. 625, 91 X. \V. 
 1048, holding that contract for construction of waterworks did not create in- 
 debtedness, within meaning of Constitution; McGilvery v. Lewiston, 13 Idaho, 
 348, 90 Pac. 348; Logansport v. Jordan, 171 Ind. 129, 37 L.R.A. ( N.S. ) 1040, 
 85 N. E. 959, 17 A. & E. Ann. Cas. 415, holding where city is indebted to the 
 limit, an indebtedness created under contract for construction of sewer creates 
 no further debt where cost of sewer upon completion increases indebtedness be- 
 yond legal limit; Voss v. Waterloo Water Co. 163 Ind. 85, 66 L.R.A. 102, 106 
 Am. St. Rep. 201, 71 N. E. 208, 2 A. & E. Ann. Cas. 978, holding municipal corpo- 
 rations cannot evade restrictions upon power to become indebted, by issuing 
 bonds payable out of a fund raised by a special tax and collected for that pur- 
 pose only; Windfall v. First Nat. Bank, 172 Ind. 690, 87 N. E. 984; Catlettsburg 
 -v. Self, 115 Ky. 679, 74 S. W. 1064, holding no debt against the city is created 
 by issue of bonds by city in payment for street improvements, the cost of which 
 is assessed against abutting property owners; Broad v. Moscow, 15 Idaho, 622, 99 
 Pac. 101, on liability of a city on bonds issued for sewerage work. 
 
 Cited in notes (23 L. R. A. 402, 403, 406) on what constitutes "an indebted- 
 ness" within meaning of constitutional and statutory restrictions of municipal 
 indebtedness; (37 L.R.A. (N.S.) 1059, 1073) on creation of indebtedness within 
 meaning of debt limit provisions; (44 Am. St. Rep. 237, 239) on what is mu- 
 nicipal indebtedness within prohibition against. 
 
 Distinguished in Austin v. Seattle, 2 Wash. 674, 27 Pac. 557, holding indebted- 
 ness in excess of constitutional limit requires assent of voters to issuance of 
 bonds for local improvements; Winamac v. Huddleston, 132 Ind. 217, 31 X. K. 
 561, holding bonds to build schoolhouse in amount in excess of bonding limit, 
 void; Lobdell v. Chicago, 227 111. 243, 81 N. E. 354, holding an issue of street 
 railway certificates creates an indebtedness against the city and where such 
 indebtedness increases limit beyond that authorized by the statutes it is illegal; 
 State ex rel. University & School Lands v. McMillan, 12 N. D. 312, 96 N. W. 
 310, holding where holders of certificates issued by city would have a right to 
 take and appropriate a pre-existing income of city for payment of them, and 
 enforce payment by sale of city property a debt is created. 
 Validity of local Improvement acts. 
 
 Cited in Indianapolis v. Holt, 155 Ind. 253, 57 N. E. 1100 (dissenting opinion), 
 majority holding local improvement act with opportunity to be heard and to 
 contest if right is not waived, valid; Adams v. Shelbyville, 154 Ind. 487, 49 
 L. R. A. 803. 77 Am. St. Rep. 484, 57 N. E. 114, holding special benefits are the 
 only foundation for special assessments; Adams v. Shelbyville, 154 Ind. 481, 49 
 L. R. A. 803, 77 Am. St. Rep. 484, 57 N. E. 114, holding new law relating 10 
 street improvements presumably intended to avoid injustice in old law; Marion 
 Bond Co. v. Johnson, 29 Ind. App. 297, 64 X. E. 020, upholding right of property 
 owner to contest amount of improvement assessment on question of special 
 benefits. 
 Waiver of irregularity In local assessments. 
 
 Cited in Cass County v. Plotner, 149 Ind. 122, 48 N. E. 635, holding property 
 owner acquiesces in public improvement when he stands by and permits con- 
 
7 L.R.A. 681] L. R. A. CASES AS AUTHORITIES. 138(T 
 
 struction to go on without objection; Richcreek v. Moorman, 14 Ind. App. 373,. 
 42 N. E. 943, holding lot owner by signing agreement waiving irregularities of 
 assessment for public improvement cannot contest validity; Dunkirk Land Co. v. 
 Zehner, 35 Ind. App. 698, 74 N. E. 1099, holding invalidity of assessment for 
 nonconformity to statute is no defense to one who has agreed, in consideration 
 of right to pay assessments in installments, not to question the legality of the 
 assessment; Newport v. Si'lva, 143 Ky. 712, 137 S. W. 546, holding that land 
 owner is not estopped from contesting payment of assessment for improvements 
 unless under ordinance he so agrees in writing to pay in installments on ten 
 year plan. 
 
 Distinguished in Wayne County Sav. Bank v. Gas City Land Co. 156 Ind. 
 663, 59 N. E. 1048, holding property owner signing waiver of irregularity as to- 
 street improvement assessments, personally liable for deficit after sale of lots 
 on foreclosure of lien ; Edward C. Jones Co. v. Perry, 26 Ind. App. 559, 57 N. . 
 E. 583, holding waiver of irregularity of assessment for street improvement 
 renders lot owner personally responsible for assessment. 
 Lien for public improvements. 
 
 Cited in Dowell v. Talbot Paving Co. 138 Ind. 682, 38 N. E. 389, holding 
 lien given city on property benefited by improvement is to enable it to collect 
 money which it may have to advance. 
 Liability for public indebtedness. 
 
 Cited in Walker v. Monroe County, 11 Ind. App. 286, 38 N. E. 1095, holding 
 gravel-road bondholder has no right of action against county; City of Hunting- 
 ton v. Force, 152 Ind. 370, 53 N. E. 443, holding city not liable for work done 
 on sewers until it has issued bonds therefor and realized from property bene- 
 fited; Robinson v. Valparaiso, 136 Ind. 621, 36 N. E. 644, holding suit by tax- 
 payer to enjoin city from accepting sewer system will not lie, since work to be 
 paid for by assessments on property benefited; German-American Sav. Bank 
 v. Spokane, 17 Wash. 332, 38 L. R. A. 264, 49 Pac. 542. holding action cannot 
 be brought against city to enforce street grade warrants until assessments for 
 collecting them enforced. 
 
 Distinguished in Terre Haute v. Blake. 9 Ind. App. 408, 36 N. E. 932, holding 
 acceptance by city of report of commissioners for taking land for streets ren- 
 ders it liable for damages in excess of benefits. 
 Reassessment for local improvements. 
 
 Cited in Goodwin v. Warren County, 146 Ind. 168, 44 N. E. 1110, holding ad- 
 ditional cost in construction of public improvement may be reassessed upoR 
 benefited lands. 
 Relation of debtor and creditor. 
 
 Cited in Keegan v. Hamilton Nat. Bank, 163 Ind. 227, 71 N. E. 647. holding 
 fact that money secured as loan by makers of notes is turned over to a third 
 party does not create relation of debtor and creditor between such third party and 
 one making the loan. 
 
 7 L. R. A. 684, KNOX COUNTY v. JOHNSON, 124 Ind. 145, 19 Am. St. Rep.. 
 
 88, 24 N. E. 148. 
 Mandamus to compel official action, -when issnable. 
 
 Cited in Anniston v. Davis, 98 Ala. 634, 39 Am. St. Rep. 94, 13 So. 331, hold- 
 ing mandamus lies to compel restoration of deposed councilman : State ex rel. . 
 Dunkleberg v. Porter, 134 Ind. 67, 32 N. E. 1021, holding mandamus lies to 
 compel issuance by township trustee of certificate of exemption from highway- 
 labor. 
 
1387 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 687 
 
 Cited in note (125 Am. St. Rep. 502) on duties, performance of which may be 
 compelled by mandamus. 
 Effect of failnre of public officer to qualify within required time. 
 
 Followed in State ex rel. Taylor v. Warrick County, 124 Ind. 556, 8 L. R. A. 
 607, 25 N. E. 10, requiring recognition of county superintendent legally elected 
 and qualified, until ousted by proper proceeding. 
 
 Cited in Minnick v. State, 154 Ind. 390, 56 X. E. 851, and Albaugh v. State, 
 145 Ind. 358, 44 N. E. 355, holding failure to file bond within time required does 
 not work forfeiture of office; Minnick v. State, 154 Ind. 391, 56 N. E. 851, hold- 
 ing delay to qualify, and legal election of another, works forfeiture of right to 
 public office. 
 
 Cited in notes (16 L.R.A. 140) on vacancy in office by failure to file bond 
 within time prescribed; (90 Am. St. Rep. 190) on failure to file official bond in 
 time as not relieving sureties. 
 
 Criticized in State ex rel. Berge v. Lansing, 46 Neb. 525, 35 L. R. A. 128, 64 
 X. \V. 1104 (dissenting opinion), majority holding act providing failure to file 
 bond within time limited vacates office, self-executing. 
 Removal of public officers; right to hearing. 
 
 Cited in People ex rel. Murphy v. McAllister, 10 Utah, 375, 37 Pac. 578, hold- 
 ing power to remove public officer not exereisabie without opportunity for 
 hearing. v 
 
 Cited in note (68 Am. St. Rep. 112) on removal of officers. 
 Appointment to nonvacant public office invalid. 
 
 Cited in State ex rel. Worrell v. Peelle, 124 Ind. 535, 8 L. R. A. 236, 24 N. E. 
 440 (dissenting opinion), majority holding appointment to office in possession 
 of legal incumbent subsequently surrendering it to appointee, invalid. 
 Judicial power in ousting officer. 
 
 Cited in State ex rel. Lee v. Chaney, 23 Okla. 797, 102 Pac. 133, holding an act 
 investing the city council with judicial powers is repugnant to the organic act 
 lodging such power in the courts. 
 
 7 L. R. A. 687, PENNSYLVANIA CO. v. MARIEN, 123 Ind. 415, 18 Am. St. 
 
 Rep. 330, 23 N. E. 973. 
 Duty to passenger*. 
 
 Cited in Girton v. Lehigh Valley R. Co. 17 Pa. Super. Ct. 150; Illinois C. 
 R. Co. v. Cheek, 152 Ind. 670, 53 N. E. 641; Toledo, St. L. & K. C. R. Co. v. ^Yin- 
 gate, 143 Ind. 131, 37 N. E. 274; Ohio & M. R. Co. v. Stansberry, 132 Ind. 536, 
 :J2 X. E. 218, holding railroad under obligation to provide for safe entry and 
 exit of passengers, including depots, platforms, and approaches; Xew York, C. 
 & St. L. R. Co. v. Mushrush, 11 Ind. App. 195, 37 N. E. 954, and Indianapolis 
 Street R. Co. v. Robinson, 157 Ind. 420, 61 N. E. 936, holding railroad liable for 
 injuries from neglect to keep depot platform in reasonably safe condition for pas- 
 sengers and others rightfully using same; Hammond, W. & E. C. Electric R. Co. 
 v. Spyzchalski, 17 Ind. App. 12, 46 N. E. 47, holding carrier required to exer- 
 cise highest degree of care in transportation of passenger; Prothero v. Citizens' 
 Street R. Co. 134 Ind. 440, 33 X. K. 7ii.~>, holding when danger constantly appar- 
 ent, carrier of passengers required to exercise highest degree of care, vigilance, 
 and skill; Knauss v. Lake Erie & W. R. Co. 29 Ind. App. 219, 64 X. E. 95, 
 holding carrier liable for injury to passenger resulting from its negligence, un- 
 less passenger was guilty of contributory negligence; Harris v. Pittsburgh, C. 
 C. & St. L. R. Co. 32 Ind. App. 602, 70 X. K. 407. holding it the duty of the 
 common carrier to provide a safe place for its passengers to alight. 
 
7L.R.A. 687] L. R. A. CASES AS AUTHORITIES. 1388 
 
 Cited in footnotes to Herrman v. Great Northern R. Co. 57 L. R. A. 390, which 
 holds railroad company liable for injury to passenger from unsafe condition of 
 depot premises leased of union depot company or its receiver; Delaware, L. & 
 W. R. Co. v. Trautwein, 7 L. R. A. 435, which holds carier required to keep pas- 
 sageway at station, though other passageway provided; Redigan v. Boston & 
 M. R. Co. 14 L. R. A. 276, which denies recovery to licensee falling through open 
 trap door in station platform. 
 
 Cited in notes (8 L. R. A. 673; 11 L. R. A. 720) on duty of carrier to use 
 care for safety of passengers in general; (20 L. R. A. 520) on measure of care 
 carrier must exercise to keep platforms and approaches safe; (16 L. R. A. 593) 
 on duty of carrier to maintain safe approaches beyond premises; (33 L.R.A. 
 (X.S.) 857) on degree of care toward passenger at station. 
 Assumption that carrier will perform duty. 
 
 Cited in Kentucky & I. Bridge Co. v. McKinney, 9 Ind. App. 217, 36 X. E. 448, 
 holding passenger entitled to assume approaches, platform, and means of enter- 
 ing cars are in reasonably safe condition; Citizens' Street R. Co. v. Merl, 26 
 Ind. App. 291, 59 N. E. 491, holding passenger boarding street railway car en- 
 titled to rely upon opportunity being given to enter safely, or of being notified 
 Of apparent danger; Citizens' Street R. Co. v. Merl, 134 Ind. 611, 33 N. E. 1014, 
 holding passenger boarding wrong car entitled to rely upon opportunity to make 
 change in safety, or of being notified by employees of danger foreseen by them. 
 Contributory negligence in getting- on or off train. 
 
 Cited in Carr v. Eel River & E. R. Co. 98 Cal. 374, 21 L. R. A. 365, 33 Pac. 
 213; Louisville, E. & St. L. Consol. R. Co. v. Bean, 9 Ind. App. 243, 36 N. E. 
 443; Pittsburgh, C. C. & St. L. R. Co. v. Gray, 28 Ind. App. 592, 64 N. E. 39, 
 holding passenger attempting to alight from slowly moving train not necessar- 
 ily negligent; Kentucky & I. Bridge Co. v. McKinney, 9 Ind. App. 222, 36 X. K. 
 448, holding whether person alighting from moving train guilty of negligence 
 is question for jury; Cincinnati, H. & I. R. Co. v. Revalee, 17 Ind. App. 665, 
 46 X*. E. 352, holding woman passenger attempting to alight from slowly mov- 
 ing train, and thrown by sudden jolt without warning, not negligent as matter 
 of law; Indiana Union Traction Co. v. Jacobs, 167 Ind. 90, 78 X. K :\-27>. 
 holding question of contributory negligence in alighting in dark and unassisted 
 from car at a defective place, for the jury, though passenger had imperfect 
 knowledge of nature of the place; Lake Erie & W. R. Co. v. Cotton. 45 Ind. 
 App. 585, 91 X". E. 253, holding that whether passenger was negligent in at- 
 tempting to alight while train was running slowly while nearing station was 
 question for jury; Houston, E. & W. T. R. Co. v. McCarty, 40 IVx. Civ. App. 
 369, 89 S. W. 805, holding charge that man of ordinary care should use more 
 care and caution in walking upon a platform with holes in it or rotten planks, 
 than one free from these defects was proper. 
 
 Cited in note (21 L. R. A. 358) on injuries in getting on and off trains. 
 "Witness? privileged communications. 
 
 Cited in Gurley v. Park, 135 Ind. 442. 35 X T . E. 279, holding physician attend- 
 ing testatrix during last illness not competent to testify from what he "saw and 
 heard" as to patient's soundness of mind; Post v. State, 14 Ind. App. 455, 42 
 N. E. 1120, holding physician incompetent to testify as to facts communicated 
 to or observed by, him, in his professional capacity; Kern v. Kern, 154 Ind. 
 34, 55 N. E. 1004, holding communications between testator and attorney in 
 reference to will, not privileged after death of testator, where both litigants claim 
 under him; New York, C. & St. L. R. Co. v. Mushrush, 11 Ind. App. 197, .37 X. 
 E. 954, holding physician not permitted to reveal facts coming to his knowl- 
 
1389 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 701 
 
 edge while attending injured person, although employed and paid by person 
 causing injury; .tna L. Ins. Co. v. Deming, 123 Ind. 391, 24 N. E. 86, holding 
 taking of deposition of physician to break force of deposition of same witness 
 previously taken by opposite party not waiver of objection to witness as incompe- 
 tent; Brackney v. Fogle, 156 Ind. 538, 60 N. E. 303, holding failure to call at- 
 tending physician to testify to soundness of mind of testatrix cannot be com- 
 mented on by counsel nor considered by jury; City of Warsaw v. Fisher, 24 Ind. 
 App. 53, 55 X. E. 42 (dissenting opinion), majority holding defendant's counsel 
 in action for personal injury may comment on omission of plaintiff to call 
 physician attending him; Battis v. Chicago R. I. & P. R. Co. 124 Iowa, 630, 100 
 X. W. 543, holding communications by patient to his physician are privileged 
 and cannot be shown even for impeachment purposes; Madsen v. Utah Light 
 
 6 R. Co. 36 Utah, 539, 105 Pac. 799, to the point that when relation of patient 
 and physician is conceded everything which has any relation to accident or 
 injury comes within statute governing privileged communications. 
 
 Cited in note (24 Am. St. Rep. 752) on evidence of statements to physicians. 
 
 Distinguished in Smith v. Roper Lumber Co. 147 X. C. 66, 125 Am. St. Rep. 
 535, 60 S. E. 717, 15 A. & E. Ann. Cas. 580, holding statement to attending 
 physician that he was acting in a certain manner when engine crushed his arm 
 was admissible in evidence where it was shown defendant's arm was crushed 
 by the engine. 
 Contradiction of -witness by previous testintony. 
 
 Cited in note (82 Am. St. Rep. 48) on contradiction of witness by previous 
 testimony. 
 
 7 L. R. A. 693, TODD v. OVIATT, 58 Conn. 174, 20 Atl. 440. 
 Rights of surviving: husband or wife in other's real estate. 
 
 Cited in Ward v. Ives, 75 Conn. 601, 54 Atl. 730, denying existence of curtesy 
 in lands of which wife has only an estate in remainder expectant upon life estate 
 in another, which did not terminate during coverture. 
 
 Cited in notes (11 L.R.A. 826) on tenancy by the curtesy in wife's estate; 
 (112 Am. St. Rep. 580, 589; 128 Am. St. Rep. 475, 477, 485) on nature and 
 existence of estates of tenancy by the curtesy. 
 
 Distinguished in Greene v. Huntington, 73 Conn. 113, 46 Atl. 883, holding stat- 
 ute giving widow dower in real estate of which husband died "possessed," in- 
 cludes equitable remainders in fee, although possession held in trust. 
 
 7 L. R. A. 701, OHIO SOUTHERX R. CO. v. MOREY, 47 Ohio St. 207, 24 
 X. E. 269. 
 
 Followed without discussion in Central Ohio Xatural Gas & Fuel Co. v. Gallo- 
 way. 29 Ohio L. J. 152. 
 Actions; jurisdiction of person. 
 
 Cited in Kinsey v. Burgess Steel & Iron Works, 4 Ohio X. P. 294, holding cor- 
 poration organized within state cannot be sued in county where its agents are 
 temporarily transacting business, but in which it has no permanent office or 
 agency; Long v. Xewhouse, 57 Ohio St. 370, 49 X. E. 79, holding want of juris- 
 diction of person of defendant cannot be raised in answer after repeated motions 
 attacking complaint; American Mut. L. Ins. Co. v. Mason, 159 Ind. 20, 64 N. E. 
 525. holding filing of answer to the merits, waiver of objections to jurisdiction of 
 the person. 
 l.iiil>ilit > for acts of independent contractor. 
 
 Cited in Fisher v. Tryon, 15 Ohio C. C. 557, holding liability of owner for neg- 
 ligence of independent contractor depends on whether injury reasonably antici- 
 
7 L.R.A. 701] L. E. A. CASES AS AUTHORITIES. 1390 
 
 pated, if proper care not used; Pittsburgh, C. & St. L. R. Co. v. Shields, 47 Ohio 
 St. 393, 8 L. R. A. 466, 21 Am. St. Rep. 840, 24 N. E. 658, holding inability of 
 master to shift responsibility for acts of servants rests on principle holding 
 owner liable for negligence of independent contractor; Steinbock v. Covington 
 & C. Bridge Co. 4 Ohio N. P. 230; Covington & C. Co. v. Patrick, 5 Ohio N. P. 
 375, and Covington & C. Bridge Co. v. Steinbrock, 61 Ohio St. 228, 76 Am. St. 
 Rep. 375, 55 N. E. 618, holding legal duty of owner causing burned wall to be 
 removed, to have work protected, cannot be delegated; Wertheimer v. Saunders, 
 95 Wis. 579, 37 L.R.A. 148, 70 N. W. 824, holding landlord putting on new 
 roof at tenant's request bound to due care for protection against elements; 
 Bonaparte v. Wiseman, 89 Md. 21, 44 L. R. A. 484, 42 Atl. 918, holding owner 
 liable for damages to adjacent premises from negligence of contractor making 
 excavation for building; Cameron v. Oberlin, 19 Ind. App. 147, 48 N. E. 386, 
 holding owner employing person to clear land liable for damage from his negli- 
 gence in permitting fire to escape to adjacent premises; Thompson v. Lowell, 
 L. & H. Street R. Co. 170 Mass. 582, 40 L. R. A. 347, 64 Am. St. Rep. 323, 49 
 N. E. 913, holding exhibition provided by independent contractor will not relieve 
 employer from responsibility, if of nature likely to cause injury, unless guarded 
 against; Jacobs v. Fuller & H. Co. 67 Ohio St. 70, ,65 N. E. 617, holding master 
 liable for injury to inexperienced employee put to work on dangerous machine 
 without instructions, though employed by foreman; Davis v. Summerfield, 133 X. 
 C. 329, 63 L.R.A. 496, 45 S. E. -654, holding that owner cannot escape liability 
 for injury to neighbor's building through excavation, by letting work to inde- 
 pendent contractor; Reilly v. Chicago & X. W. R. Co. 122 Iowa, 528, 98 X. W. 
 464, holding railroad company not liable for injury to employee of independent 
 contractor due to latter's negligence; Hunter v. Southern R. Co. 152 X. C. 688, 
 29 L.R.A. (X.S.) 851, 68 S. E. 237, holding proprietor liable for injuries caused 
 by blasting, though work is done by an independent contractor, where he knew 
 of danger to nearby residents and made use of such contractor to relieve himself 
 of liability; Hollis v. Kansas City M. Retail Merchants' Asso. 205 Mo. 519, 14 
 L.R.A. (N.S.) 288, 103 S. W. 32, holding a merchants' association liable for in- 
 juries resulting from exhibition conducted by an independent contractor where 
 it was of such a kind that it would probably cause injury to a spectator: 
 Bernheimer Bros. v. Eager, 108 Md. 562, 129 Am. St. Rep. 458, 70 Atl. 91. 
 holding duty of master to furnish employees a safe place to work cannot be 
 delegated to an independent contractor; St. Louis & S. F. R. Co. v. Madden. 
 
 77 Kan, 88, 17 L.R.A. (X.S.) 793, 93 Pac. 586, holding railroad company liable 
 for injuries caused by burning fire guards by one under independent contract 
 to do the work; Cameron Mill & Elev. Co. v. Anderson, 34 Tex. Civ. App. 109, 
 
 78 S. W. 8, holding where injuries result directly from very thing the city au- 
 thorized the doing of the licensee is liable though work is performed by inde- 
 pendent contractor; Engler v. Seattle, 40 Wash. 76, 82 Pac. 136, holding city 
 is not liable for injuries resulting to workman in obeying orders of city engineer 
 where work was being done under contract with independent contractor who 
 selected the men and controlled manner of work; Honnemeyer v. Fischer, 27 
 Ohio C. C. 9, 17 Ohio C. D. 9, 2 Ohio L. Rep. 402, holding that the injury to 
 furniture in a dwelling house resulting from replacing the old roof with a new 
 one, is one that might be anticipated as a probable consequence and the doctrine 
 that the independent contractor alone is liable, does not apply; Coney Island 
 Co. v. Mitsch, 3 Ohio N. P. n. s. 83, 15 Ohio S. & C. P. Dec. 657, holding that 
 the operation of a "pony track" at a summer resort was pre-eminently a dan- 
 gerous work and the liability of the owner was not affected because it was 
 operated by an independent contractor; Covington C. Bridge Co. v. Steinbrook, 
 
1391 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 701 
 
 61 Ohio St. 228, 76 Am. St. Rep. 375, 55 N. E. 618, Affirming 4 X. P. 229, 6 
 Low. D. 330, and 5 X. P. 374, 7 Low. D. 401, holding that the owner of the 
 premises was liable for injuries because of the falling of dangerous walls after 
 a fire although art independent contractor was engaged in removing them at 
 the time; Pittsburg, C. & St. L. R. Ce. v. Shields, 47 Ohio St. 387, 8 L.R.A. 
 464, 21 Am. vSt. Rep. 840, 24 X. E. 658, holding by analogy, that a master 
 could not shift the responsibility connected with the custody of dangerous in- 
 struments to his servants entrusted with their use. 
 
 Cited in notes (14 L.R.A. 828) on exceptions to rule that employer not liable 
 for act of independent contractor; (65 L.R.A. 744, 753) on liability for acts 
 of independent contractor where injury is direct result of work contracted for; 
 (65 L.R.A. 835, 847) on liability for injuries caused by performance of work 
 by independent contractor which is dangerous unless certain precautions are 
 observed; (66 L.R.A. 121) on liability for acts of independent contractor where 
 injuries result from nonperformance of absolute duties of employer; (76 Am. 
 St. Rep. 385, 388, 403) on liability for negligence and torts of independent 
 contractors. 
 
 Distinguished in Leavitt v. Bangor & A. R. Co. 89 Me. 519, 36 L. R. A. 384, 
 36 Atl. 998, holding railroad employing person to clear timber from right of 
 way, and furnishing cooking car, not liable for damage from fire set by cooking 
 car; Clark v. Xorthern P. R. Co. 59 L.R.A. 512, holding railroad permitting 
 circus to exhibit on land adjoining switch yard, not chargeable with duty of 
 exercising care to protect public from dangers incident to crossing yard: Lytle 
 v. Conover Bldg. Co. 12 Ohio S. & C. P. Dec. 351, holding that the abutting 
 owner was not liable for injuries to a pedestrian by the negligence of a servant 
 of the independent contractor engaged in constructing a building on the land, 
 such construction not being inherently dangerous. 
 "Work; in or about streets and highways. 
 
 Cited in Hawver v. Whalen, 49 Ohio St. 80, 14 L.R.A. 835, 29 X. E. 1049, 
 holding person excavating near to sidewalk cannot shift duty to guard it by 
 letting work to contractor; Reuben v. Swigart, 15 Ohio C. C. 577, holding owner 
 not relieved from liability for contractor depositing building material in street, 
 under permission granted owner on condition that same be guarded and lighted; 
 Gable v. Toledo, 16 Ohio C. C. 524, holding city liable for injury from falling 
 into unguarded excavation in street, made by its authority, although work done 
 by independent contractor; Morris v. Woodburn, 57 Ohio St. 335, 48 X. E. 1097, 
 holding owner constructing vault under sidewalk liable for injury arising from 
 defective covering during construction; Strong v. Pickering Hardware Co. 9 
 Ohio C. C. 252, 6 Ohio C. D. 212, questioning whether owner liable for injury 
 to person falling over board put across sidewalk during building repair by inde- 
 pendent contractors; Haflf v. Shockley, 122 Iowa, 728, 64 L.R.A. 542, 101 Am. 
 St. Rep. 289, 98 X. W. 573, holding owner not liable for contractor's failure to 
 barricade sand in street; McHarge v. Xewcomer, 117 Tenn. 616, 9 L.R.A.(X.S.) 
 298, 100 S. W. 700, holding proprietor of store on populous street liable for 
 injuries resulting from tools or material falling while repairs on awning are 
 being made by independent contractor: O'Hara v. Laclede Gaslight Co. 131 Mo. 
 App. 452, 110 S. W. 642, holding where public way is, under a license, occupied 
 for a private use, the duty rests upon the employer to keep it reasonably safe, 
 though breach is committed by an independent contractor; Central Union Teleph. 
 Co. v. Conneaut, 93 C. C. A. 191, 167 Fed. 280, on liability of city for defective 
 street due to authorized act by third party; Strong v. Pickering Hardware Co. 
 9 Ohio C. C. 252, 6 Ohio C. D. 213, on the liability of the abutting owner for 
 dangerous condition of street because of acts of independent contractor; Reuben 
 
7 L.E.A. 701] L. R. A. CASES AS AUTHORITIES. 1392 
 
 v. Swigart, 15 Ohio C. C. 577, 7 Ohio C. D. 645, holding that where the dan- 
 gerous condition of the street is the probable consequence of the work, the fact 
 that it is being done by an independent contractor does not release the owner 
 from liability; Fisher v. Tryon, 15 Ohio C. C. 557, 8 Ohio C. D. 505, sustaining 
 charge to the effect that if the dangerous character of the work done in the 
 street could have been anticipated the abutting owner was liable although he 
 employed an independent contractor to do the work: Anderson v. Feutsch, 31 
 Nev. 505, 103 Pac. 1013, holding the abutting property owner liable for excava- 
 tion in the street in front of his premises though made by an independent con- 
 tractor for the owner; Hawver v. Whalen, 49 Oliio St. 69, 14 L.R.A. 828, 29 
 N. E. 1049, holding abutting owner liable for injuries by falling into area exca- 
 vated into street though an independent contractor was engaged to construct 
 the area walls. 
 
 Distinguished in Independence v. Slack, 134 Mo. 76, 34 S. W. 1094, holding 
 owner not liable to person who fell over stone left in street by sidewalk con- 
 tractor; Columbus v. Penrod, 73 Ohio St. 215, 3 L.R.A. (N.S.) 389, 112 Am. 
 St. Rep. 716, 76 N. E. 826, holding city not liable for damages due to granting 
 permit to use streets for placing building material under its ordinance or in 
 neglecting to enforce provisions of ordinance. 
 Liability for dangerous condition of street generally. 
 
 Cited in Gable v. Toledo (City) 16 Ohio C. C. 523, 9 Ohio C. D. 68, holding 
 city liable for dangerous excavation in the street causing injury because left 
 unguarded where the city authorized the excavation. 
 Of abutting property owner. 
 
 Followed in Landis v. Drake County, 32 Ohio L. J. 316, on the liability of 
 owner of premises for injury to passerby because of open area in street. 
 
 Cited in First Nat. Bank\. Gillen, 7 Ohio C. C. N. S. 37, 27 Ohio C. C. 613,. 
 on the liability of the abutting owner for an injury by reason of defective con- 
 dition of street in front of his property caused by his own acts; Morris v. 
 Woodburn, 57 Ohio St. 330, 48 N. E. 1097, holding abutting owner liable for 
 injuries by reason of defective cover on vault constructed by him under sidewalk 
 in front of his premises. 
 Injury to trespassers. 
 
 Distinguished in Clark v. Northern P. R. Co. 29 Wash. 147, 59 L. R. A. 508, 
 69 Pac. 636, holding railroad company not liable for injury to minor crossing, 
 tracks, as short cut to circus on company's grounds. 
 Joint tort liability. 
 
 Cited in Graves v. City & Suburban Teleg. Asso. 132 Fed. 388, 2 Ohio L. Rep. 
 15, holding where negligence of traction company and telephone company con- 
 cur in producing an injury, though acting independently, they are joint tort- 
 feasors. 
 Venue of action against a corporation. 
 
 Cited in Kinsey v. Burgess Steel & Iron Works, 4 Ohio N. P. 293, 6 Ohio. 
 S. & C. P. Dec. 446, holding that an action against a corporation must be 
 brought in the county in which the corporation is situated or has its principal 
 place of business or in which an office or agency established. 
 Railroad company. 
 
 Cited in Northern P. R. Co. v. Baum, 7 Ohio N. P. N. S. 270, 19 Ohio S. & 
 C. P. Dec. 818, holding that a justice of the peace had jurisdiction of an action 
 of attachment against a railroad company though no part of the railroad ran 
 through the county nor the president lived therein, if there was property of the 
 company in the county, which had been attached: Johnson v. Toledo & 0. C... 
 
1393 L. R. A. CASES AS AUTHORITIES. 7 L.R.A. 705 
 
 R. Co. 5 Ohio X. P. N. S. 352, 18 Ohio S. & C. P. Dec. 251, holding that an 
 action against a railroad company must be brought in a county through which 
 the road passes. 
 
 7 L. R. A. 705, SNODDY v. AMERICAN NAT. BANK, 88 Tenn. 573, 17 Am. St. 
 
 Rep. 919, 13 S. W. 127. 
 Validity of negotiable paper sriv-n for illegal consideration. 
 
 Cited in Irwin v. Marquett, 26 Ind. App. 393, 84 Am. St. Rep. 297, 59 N. E. 38, 
 holding check given in payment of bet made at cards void under statute in hands 
 of bona fide holder; Citizens' State Bank v. Xore, 67 Xeb. 71, 60 L.R.A. 738, 93 
 X. W. 160, 2 Ann. Cas. 604, holding note for medical services by unlicensed prac- 
 titioner valid in hands of bona fide holder. 
 
 Cited in footnotes to Drinkall v. Movius State Bank, 57 L. R. A. 341, which 
 holds title to cashier's check acquired by payee's indorsement to gambler in 
 payment for chips to be used in gambling, defective; Ullman v. St. Louis Fair 
 Asso. 56 L. R. A. 606, which denies right to abandon partly executed illegal 
 bookmaking contract for specified period, and recover back pro rata amount of 
 money paid; Fuller v. Berger, 65 L.R.A. 381, which holds that equity will not 
 refuse relief against infringement of patent because owner has devoted it wholly 
 to an immoral use. 
 
 Cited in notes (16 L.R.A. 46) on rights of bona fide purchaser of note declared 
 void by statute; (7 L.R.A. (X.S.) 468) on secret bonus to officer or director as 
 affecting right to enforce contract against corporation. 
 
 Distinguished in Bohon v. Brown, 101 Ky. 362, 38 L. R. A. 505, 72 Am. St. 
 Rep. 420, 41 S. W. 273, holding under statute requiring note taken fo^ patent 
 right to have words "Peddler's note" written across face, note given for patent 
 right, without such indorsement, not void in hands of innocent purchaser, where 
 it does not appear sale was by peddler; Jefferson Bank v. Chapman-White 
 Lyons Co. 122 Tenn. 423, 123 S. W. 641, holding that corporation note for stock 
 in another corporation in ultra vires and uncollectable by payee; Arnd v. Sjoblom, 
 131 Wis. 643, 10 L.R.A. (X.S.) 843, 111 N. W. 666, 11 A. & E. Ann. Cas. 1179, 
 holding a note, taken in violation of the statute but such fact not appearing 
 on its face, is enforceable in hands of innocent holder for value. 
 
 Disapproved in Union Trust Co. v. Preston Xat. Bank, 136 Mich. 464, 112 
 Am. St. Rep. 370, 99 X. W. 399, 4 A. & E. Ann. Cas. 347, holding fact that 
 law makes it a crime for a bank to certify a check when no funds are available 
 to satisfy it, does not render the check invalid in hands of a bona fide holder 
 for value. 
 Invalidity of gaming- contracts. 
 
 Cited in footnotes to Appleton v. Maxwell, 55 L. R, A. 93, which denies right 
 of action for money loaned to be used in gambling; Booth v. People, 50 L. R. A. 
 762, which sustains statute making unlawful, options for sale of commodities 
 which have been subject of gambling operations; Central Stock & Grain Exchange 
 v. Bendinger, 56 L. R. A. 875, which holds broker liable to refund to principal 
 money illegally taken from agent as margins on gambling transaction; First 
 Xat. Bank v. Carroll, 8 L. R. A. 275. which holds guaranty that cattle will sell 
 at specified price in consideration of receiving all above such price, gambling 
 contract; Jemison v. Citizens Sav. Bank, 9 L. R. A. 708, which holds specu- 
 lative dealing in cotton futures by savings bank, ultra vires; Olson v. Sawyer 
 Goodman Co. 53 L. R. A. 648, which holds void, agreement to debit and credit 
 on accounts due employees, their winnings at card games with each other; Pope 
 v. Hanke, 28 L. R. A. 568, which holds comity does not require execution of law 
 against public policy. 
 
 L.R.A. Au. Vol. I. 88. 
 
7 L.R.A. 705] L. E. A. CASES AS AUTHORITIES. 
 
 Cited in notes (117 Am. St. Rep. 503) on invalidity of contracts made in 
 violation of penal statute; (119 Am. St. Rep. 174, 176, 177, 178) on defenses 
 to obligations given for gambling debts. 
 Stock gambling contracts. 
 
 Cited in footnote to Baxter v. Deneen, 64 L. R. A. 949, which holds that equity 
 will not aid party to stock gambling contract to recover margins deposited by 
 broker. 
 
 Cited in note (11 L.R.A. (N.S.) 577) on right of broker to recover commis- 
 sions or advances in furthering wagering contract. 
 
 7 L. R. A. 706, CARTWRIGHT v. DICKINSON, 88 Tenn. 476, 12 S. W. 1030. 
 Stock subscription contract. 
 
 Approved in Greenbrier Industrial Exposition v. Rodes, 37 W. Va. 740, 17 
 S. E. 306, holding signing and acknowledging statutory agreement for organiza- 
 tion of corporation, binding when company incorporated and organized ; Ban- 
 nister v. Wallace, 14 Tex. Civ. App. 455, 37 S. W. 250, holding obligor not 
 released from convict bond because of agreement with person presenting same, 
 for others' signatures not obtained. 
 
 Cited in Beam v. Floyd County Farmers' Union, 8 Ga. App. 399, 69 S. E. 
 225, holding that capital stock of corporation is trust fund for benefit of stock- 
 holders and creditors and officer cannot release subscriber from payment of 
 subscription. 
 
 Cited in footnote to Elyton Land Co. v. Birmingham Warehouse & Elevator 
 Co. 12 L. R. A. 307, which holds subscribers liable to creditors where stock paid 
 for by conveyance of land worth only amount assumed by corporation. 
 
 Cited in notes (33 L. R. A. 596) as to withdrawal of subscription for shares 
 of corporation; (10 L. R. A. 707) as to notice to agent being notice to principal; 
 ( 61 L.R.A. 627 ) on right of corporation to purchase its own shares of stock : 
 (93 Am. St. Rep. 366) on liability to corporations of subscribers to stock; (22 
 Eng. Rul. Cas. 41) as to when subscription to stock becomes effective. 
 
 Distinguished in First Nat. Bank v. Peoria Watch Co. 191 111. 134, 60 N. E 
 859, holding subscriber for capital stock surrendered without payment for in 
 full, upon resale not liable; Hudson Real Estate Co. v. Tower, 161 Mass. 14, 42 
 Am. St. Rep. 379, 36 N. E. 680, holding that subscriber to capital stock may 
 withdraw before corporation organized upon giving due notice. 
 Effect of mistake of law. 
 
 Cited in footnote to Atherton v. Roche, 55 L. R. A. 591, which denies power to 
 reform deed to daughter and husband and "their" heirs so as to include all heirs 
 of her body. 
 Increase of capital stock by by-law. 
 
 Cited in Union R. Co. v. Sneed, 99 Tenn. 6, 41 S. W. 364, holding increase 
 of capital stock by mere resolution of board of directors, void; Ross-Meehan 
 Brake Shoe Foundry Co. v. Southern Malleable Iron Co. 72 Fed. 961, holding 
 increase of capital stock by mere resolution of stockholders, void ; Peck v. 
 Elliott, 38 L. R. A. 622, 24 C. C. A. 432, 47 U. S. App. 605, 79 Fed. 16, holding 
 increase of capital stock by amendment of by-laws, valid where corporation 
 authorized to fix same by by-laws. 
 Issuance of certificate as affecting stockholder's status. 
 
 Cited in Sherwood v. Illinois Trust & Sav. Bank, 195 111. 118, 88 Am. St. Rep. 
 183, 62 N. E. 835, holding that issuance of certificate of stock not necessary to 
 status as stockholder; Cotter v. Butte & R. Valley Smelting Co. 31 Mont. 133, 
 
1395 L. R. A. CASES AS AUTHORITIES. [7 LJ?.A. 711 
 
 77 Pac. 509, holding one can be a stockholder prior to the issuance and delivery 
 to him of certificates of stock. 
 Subscriptions for unauthorized stock. 
 
 Cited in note (38 L. R. A. 616) as to power to increase capital stock of cor- 
 porations. 
 Withdrawal or retirement of corporate stock. 
 
 Cited in Fitzpatrick v. McGregor, 133 Ga. 339, 25 L.R.A.(X.S.) 57, 65 S. E. 
 859, holding the capital stock being impaired by purchase of own stock to be 
 paid for from capital of corporation the transactions were illegal. 
 
 Cited in note (33 Am. St. Rep. 345) on power of corporation to purchase 
 its own stock. 
 Power of corporation to declare forfeiture of stock. 
 
 Cited in note (114 Am. St. Rep. 25) on power of corporation to declare for- 
 ieiture of stock. 
 
 7 L. R. A. 711, SCHROEDER v. GALLAND, 134 Pa. 277, 19 Am. St. Rep. 691, 
 
 19 Atl. 632. 
 Subcontractor's lien. 
 
 Explained in Nice v. Walker, 153 Pa. 124, 31 W. N. C. 523, 34 Am. St. Rep. 
 688, 25 Atl. 1065, holding lien may be filed whenever not expressly or by necessary 
 implication prohibited in contract. 
 
 Cited in Herrell v. Donovan, 7 App. D. C. 340, and Wilkinson v. Brice, 148 
 Pa. 155, 30 W. N. C. 31, 23 Atl. 982, holding lien invalidated by contractor's 
 stipulation to file no lien; Ballman v. Heron, 160 Pa. 385, 34 W. N. C. 139, 28 
 Atl. 914, holding stipulation to file no lien, in building contract between coten- 
 ants, invalidates liens in absence of fraud; Tebay v. Kirkpatrick, 146 Pa. 124, 
 29 W. N. C. 186, 23 Atl. 318, and Fidelity Mut. Life Asso. v. Jackson, 163 Pa. 
 209, 34 W. N. C. 465, 43 Am. St. Rep. 789, 28 Atl. 883, holding agreement to 
 keep building free from liens equivalent to contract not to file or permit filing 
 .-of same; Bolton v. Hey, 148 Pa. 157, 23 Atl. 973, Affirming 10 Pa. Co. Ct. 381, 
 holding contract stipulation for payment upon release of liens, and delivery 
 free of liens, implied agreement not to file same, binding on subcontractor; 
 Bolton v. Hey t 168 Pa. 419, 31 Atl. 1097, holding judgment in first action con- 
 clusive in second action to enforce lien; Waters v. Wolf, 162 Pa. 156, 34 W. N. C. 
 410, 42 Am. St. Rep. 815, 29 Atl. 646; holding statute June 8, 1891, making 
 contractor's agreement concerning liens immaterial in absence of subcontractor's 
 assent unconstitutional; Dersheimer v. Maloney, 143 Pa. 536, 22 Atl. 813, hold- 
 ing subcontractor precluded from lien by stipulation of contractor that owner 
 not accountable in any manner for materials; Morris v. Ross, 184 Pa. 243, 38 
 Atl. 1084, holding prohibition against liens operative in spite of other provi- 
 sions protecting owner against liens; Rhine v. Mauk, 21 Pa. Co. Ct. 345, 14 
 Montg. Co. L. Rep. 198, holding contractor's stipulation against liens binding 
 though written contract embodying provision not executed at time; McElroy v. 
 Braden, 152 Pa. 81, 31 W. X. C. 198, 25 Atl. 235, holding parol stipulation of 
 contractor against liens binding on subcontractors; Benedict v. Hood, 134 Pa. 
 292, 19 Am. St. Rep. 698, 19 Atl. 635, holding change of building plans does 
 not alter obligation of subcontractor's bond to owner for performance without 
 filing liens; Bohem v. Seabury, 141 Pa. 597, 21 Atl. 674, holding successor to 
 contracting partnership cannot file lien under contract without showing assign- 
 ment thereof; Bevan v. Thackara, 143 Pa. 200, 28 W. N. C. 477, 24 Ara. St. Rep. 
 529, 22 Atl. 873, holding material man cannot recover for supplies to stable on 
 claim against house, where they were erected under separate contracts of which 
 
7 L.R.A. 711] L. R. A. CASES AS AUTHORITIES. 139d 
 
 owner was ignorant; Commonwealth Title Ins. & T. Co. v. Ellis, 44 W. X. ( 
 429, holding stipulation against filing liens by subcontractor "or any person" 
 precludes contractor, though owner otherwise protected against him ; Wolf v. 
 Glassport Lumber Co. 210 Pa. 372, 59 Atl. 1105, on effect to be given stipulation 
 in contract against liling of liens; Stein v. McCarthy, 120 Wis. 295, 97 X. W. 
 912, holding a subcontractor seeking to enforce a lien for plastering would be 
 bound to take notice of terms and conditions of the original contract; Davis 
 v. La Crosse Hospital Asso. 12] Wis. 583, 99 X. W. 351, 1 A. & E. Ann. Cas. 
 950, holding a builder waives his right to the lien remedy by an express stipu- 
 lation not to file his lien; Glassport Lumber Co. v. Wolf, 213 Pa. 409, 62 Atl. 
 1074, holding a subcontractor has no power to file mechanic's lien where con- 
 tract expressly stipulates that no liens shall be filed for labor or materials 
 furnished; W. W. Brown Constr. Co. v. Central Illinois Constr. Co. 234 111. 401,. 
 84 X. E. 1038, holding right of subcontractor to enforce a lien is barred when- 
 ever the contract entered into by owner contains agreement that there shall be- 
 np lien; George B. Swift Co. v. Dolle, 39 Ind. App. 660, 80 X. E. 678, holding 
 subcontract or having knowledge of agreement of contractor with owner that 
 property shall be kept free from liens, cannot enforce lien for wages and material 
 furnished; Burger v. S. R. Moss Ciga-r Co. 26 Lane. L. Rev. 93, striking off 
 lien by subcontractor where there is agreement between owner and contractor 
 that no mechanics' liens shall be filed; Murphy v. Ellis, 22 Pittsb. L. J. n. s. 
 366, holding that contract by contractor to deliver house free of all liens does, 
 not prevent lien by material-man; Pierce v. Van Horn, 12 Luzerne Legal Reg. 
 Rep. 202, on lien of material-man, where contractor agrees to deliver building 
 free from liens. 
 
 Cited in footnotes to Smith v. Xeubauer, 33 L. R. A. 685. which authorizes 
 lien for materials furnished to subcontractors as well as to contractors; High- 
 tower v. Bailey, 49 L. R. A. 255, which sustains lien to subcontractors or mate- 
 rial men irrespective of notice of claim or state of account between owner and 
 principal contractor; Steger v. Arctic Refrigerating Co. 11 L. R. A. 580. which 
 holds lien for laying pipes on land of strangers for refrigerating company enforce- 
 able against entire plant of company. 
 
 Cited in notes (12 L. R. A. 35) on priority of mechanics' lien over subsequent 
 liens; (20 L. R. A. 565) on payment to contractors or subcontractors as affecting- 
 liens of subordinate claimants; (13 L. R. A. 703) on legislative intent in Xew 
 York mechanic's lien law of 1885; (19 Am. St. Rep. 699) on stipulations in 
 builder's contract destroying rights of subcontractors and materialmen to liens. 
 
 Distinguished in Evans v. Grogan, 153 Pa. 122, 25 Atl. 804, and Loyd v.. 
 Krause. 147 Pa. 403, 23 Atl. 602, holding filing of lien not precluded by contract 
 exempting owner from personal claim, and providing that final payment shall 
 be withheld until "complete release of liens;" Schmid v. Palm Garden Improv. 
 Co. 162 Pa. 217, 34 W. X. C. 463. 29 Atl. 727 : Murphy v. Morton, 139 Pa. 346, 
 20 Atl. 1049; Murphy v. Ellis, 11 Pa. Co. Ct. 303, 1 Pa. Dist. R, 399, holding 
 contract for building and delivery of house free of liens does not preclude* 
 material man from filing same; Taylor v. Murphy, 148 Pa. 340, 30 W. N. C. 28, 
 33 Am. St. Rep. 825, 23 Atl. 1134, holding contractor's agreement to "release 
 and discharge" property of liens does not prevent filing of same; Jarvis v. State 
 3ank, 22 Colo. 316, 5.1 Am. St. Rep. 129, 45 Pac. 505, holding subcontractor not 
 precluded from filing lien by contractor's waiver of lien and agreement to defend 
 owner therefrom; Willey v. Topping, 146 Pa. 430, 23 Atl. 335. holding material 
 man not affected by contractor's release from liens executed after original con- 
 tract, though before materials supplied; Cook v. Murphy, 150 Pa. 43, 30 W. X. C.. 
 336, 24 Atl. 630, holding supplementary contract does not affect lien under origi- 
 
1397 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 715 
 
 nal contract, where not brought to subcontractor's notice; McCollum v. Riale, 
 163 Pa. 608, 43 Am. St. Rep. 816, 30 Atl. 282, holding material man entitled to 
 lien though owner secretly sold property and agreed to build without permitting 
 liens; Aste v. Wilson, 14 Colo. App. 326, 59 Pac. 846, upholding subcontractor's 
 right to file lien where contractor has right thereto, though contract prohibits 
 same in favor of subcontractor; Ditto v. Jackson, 3 Colo. App. 283, 33 Pac. 81, 
 holding complaint on foreclosure of mechanic's lien not demurrable where owner's 
 indebtedness to contractor alleged; Connell v. Ker, 9 Pa. Dist. R. 146, 17 Lane. 
 L. Rev. 207, holding builder's contract duly recorded not part of court record on 
 motion to strike off subcontractor's lien; Richards v. Waldron, 9 Mackey, 590, 
 holding lien of unrecorded trust deed superior to subsequent mechanics' liens; 
 Keim v. McRoberts, 18 Pa. Super. Ct. 170, holding description of building in 
 contract as old or. new not binding on subcontractor in filing lien; Cost v. 
 Newport Builders' Supply & Hardware Co. 85 Ark. 412, 108 S. W. 509, 14 A. 
 
 6 E. Ann. Gas. 142, holding subcontractor is not bound by such stipulation 
 unless he has actual notice thereof. 
 
 Disapproved in Miles v. Coutts, 20 Mont. 50, 49 Pac. 393, holding contractor's 
 stipulation against liens does not preclude same by subcontractor not assenting 
 to contract; Central Illinois Constr. Co. v. W. W. Brown Constr. Co. 137 111. 
 App. 533, holding stipulation that completed work shall be delivered free from 
 any and all liens is not a waiver of statutory right to a lien. 
 Constitutionality of mechanic's lien law. 
 
 Cited in Barrett v. Millikan, 156 Ind. 514, 83 Am. St. Rep. 220, 60 N. E. 310, 
 holding statute creating mechanics' liens not taking of property without due 
 process of law; Jones v. Great Southern Fireproof Hotel Co. 30 C. C. A. 116, 58 
 U. S. App. 397, 86 Fed. 378, holding statute giving subcontractor lien to extent 
 of contract price irrespective of payments to contractor on terms of contract 
 constitutional; Mallory v. La Crosse Abattoir Co. 80 Wis. 186, 49 N. W. 1071 
 (dissenting opinion), majority holding statute giving material man lien irre- 
 spective of contractor's agreement on payment to contractor by owner consti- 
 tutional. 
 Contracts. 
 
 Cited in McCaul's Estate, 28 Pa. Co. Ct. 172, holding compensation for engi- 
 neer's plans for building dependent upon acceptance by owner, under special 
 terms of contract. 
 
 7 L. R. A. 715, PEOPLE ex rel. KEMMLER v. DURSTOX, 119 N. Y. 569, 16 Am. 
 
 St. Rep. 859, 24 X. E. 6. 
 I'roimi pi i<m of constitutionality of statute. 
 
 Approved in McGrath v. Grout, 69 App. Div. 315, 74 N. Y. Supp. 782, holding 
 .that legislature will be presumed to have acted within limits of authority in 
 passing act; Rathbone v. Wirth. 150 X. Y. 509, 34 L. R. A. 426, 45 X. E. 15, 
 Affirming 6 App. Div-. 284, 40 X. Y. Supp. 535 (dissenting opinion), as to neces- 
 sity of upholding statute unless clearly and substantially in conflict with con- 
 stitution; Bell v. Gaynor, 14 Misc. 339, 36 X. Y. Supp. 122 (dissenting opinion) 
 as to presumption in favor of constitutionality of act; New York v. Chelsea 
 Jute Mills. 43 Misc. 269, 88 N. Y. Supp. 1085, upholding constitutionality of 
 -act prohibiting employment of children under fourteen years of age during 
 school terms; People v. Lochner, 177 N. Y. 159, 69 X. E. 373, upholding con- 
 stitutionality of act limiting hours of labor in bakeries; Tenement House 
 Department v. Moeschen, 89 App. Div. 53fi, 85 N. Y. Supp. 704, upholding 
 constitutionality of act requiring tenement 'house school sinks to be replaced by 
 individual water closets; People ex rel. Metropolitan Street R. Co. v. State Tax 
 
7 L.R.A. 715] L. R. A. CASES AS AUTHORITIES. 1398' 
 
 Comrs. 174 N. Y. 446, 63 L. R. A. 894, 67 N. E. 69, holding right of local self- 
 government not violated by imposing duty of assessing tax on special franchises 
 upon state officers. 
 
 Cited in People ex rel. Peabody v. Baker, 59 Misc. 363, 110 N. Y. Supp. 848, . 
 holding it the duty of court to presume in favor of validity of a statute until 
 its violation of the constitution is established beyond all reasonable doubt. 
 Extrinsic evidence of 11 :i<'o:is< i t is t ioim 1 it v of act. 
 
 Cited in Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 360, 14 L. R. A. 
 485, 28 N. E. 358, holding that purpose of legislature to appropriate public 
 money for benefit of individual cannot be determined by court on testimony of 
 expert witness where the act itself states purpose to be enlargement of public 
 canal; Bonnett v. Vallier, 136 Wis. 204, 17 L.R.A.(N.S.) 492, 128 Am. St. Rep. 
 1061, 116 N. W. 885, holding the court looks to language of statute and all 
 facts bearing on the situation of which it may be said to judicially know because 
 of their common nature or otherwise to determine what is reasonable; Tenement 
 House Department v. Moeschen, 179 N. Y. 330, 70 L.R.A. 708, -103 Am. St. Rep. 
 910, 72 N. E. 231, 1 A. & E. Ann. Cas. 439, holding constitutionality of a 
 statute may be determined by considering its language and the material facts 
 of which the court can take judicial notice. 
 
 Cited in note ( 14 L. R. A. 459 ) as to consideration of extrinsic evidence to 
 show unconstitutionality of statute. 
 Cruel and iiiuisu.-. I punishments. 
 
 Approved in Storti v. Com. 178 Mass. 553, 52 L. R. A. 522, 60 N. E. 210, 
 holding electrocution not cruel or unusual punishment; People v. Kemmler, 119 
 N. Y. 586, 24 N. E. 9, raising without deciding question of validity of sentence 
 to death by electrocution. 
 
 Cited in State .v. Tomassi, 75 N. J. L. 747, 69 Atl. 214, holding the court 
 cannot assume that death by the electric current is a cruel punishment in the 
 constitutional sense. 
 
 Cited in footnote to Com. v. Murphy, 30 L. R. A. 734, which sustains statute 
 imposing imprisonment for life for criminal intimacy with girl under sixteen. 
 
 Cited in note (35 L. R. A. 575) as to cruel and unusual punishments. 
 Conclusiveness of decision iiui:inx constitutionality. 
 
 Cited in Ex-parte Hollman, 79 S. C. 28, 21 L.R.A.(X.S.) 251, 60 S. E. 19, 
 14 A. & E. Ann. Cas. 1105" (dissenting opinion), on effect to be given a con- 
 viction under an unconstitutional law. 
 
 Cited in note (39 L. R. A. 457) as to decision against constitutional right as 
 a nullity subject to collateral attack. 
 
 7 L. R. A. 717, PEOPLE v. DETROIT, G. H. & M. R. CO. 79 Mich. 471, 44 
 
 N. W. 934. 
 Fencing 1 track and maintaining grates. 
 
 Cited in Louisville, N. A. & C. R. Co. v. Hughes, 2 Ind. App. 78, 28 N. E. 158,. 
 holding object of statutes requiring railroads to fence is as much to diminish 
 danger of travel as to provide compensation for animals injured. 
 
 Cited in footnote to Pittsburgh, C. C. & St. L. R. Co. v. Crown Point, 35 
 L. R. A. 684, which denies power of town to compel railroad company to keep- 
 watchman and maintain gates at crossing at own expense. 
 
 Cited in note (39 L. R. A. 619) on municipal control over nuisances created 
 by railroads on highways. 
 
 Distinguished in Louisville & N. R. Co. v. Emerson, 125 Ky. 110, 110 S. W. 
 863, holding where part of charter of railroad company provided for wagon 
 roads whenever tracks crossed through land, company was bound to put in* 
 
1399 L. R. A. CASES AS AUTHORITIES. [7 LJLA. 722 
 
 crossing where tract of land was subsequently divided into two parts though 
 crossing was put in originally. 
 
 7 L. R. A. 720, LAXG v. SALLIOTTE, 79 Mich. 505, 44 N. W. 938. 
 When arbitration permissible. 
 
 Cited in McCord v. Flynn, 111 Wis. 87, 86 N. W. 668, holding submission of 
 controversy involving specific performance of contract to convey interest in 
 land in compensation of services not void under statute forbidding submission 
 as to claim to estate in fee or for life. 
 
 Cited in note (17 L. R. A. 211) on submission to arbitration. 
 
 7 L. R. A. 722, HANFORD v. ST. PAUL & D. R. CO. 43 Minn. 104, 44 N. W. 1144. 
 State ownership of beds of waters and watercourses. 
 
 Cited in Minnesota Canal & Power Co. v. Koochiching Co. 97 Minn. 443, 5 
 L.R.A. (X.S.) 645, 107 N. W. 405, 7 A. & E. Ann. Cas. 1182, holding rights of state 
 in navigable waters are held in trust for public and not alienable; Newport 
 Xews Shipbuilding & Dry Dock Co. v. Jones, 105 Va. 510, 6 L.R.A.(X.S.) 250, 
 54 S. E. 314, holding the navigable waters beyond low water mark and the soil 
 beneath them within territorial limits of a state are the property of the state 
 and subject to its control. 
 Waters; title and rights of riparian proprietor. 
 
 Cited in Hall v. Hobart, 108 C. C. A. 348, 186 Fed. 431, Affirming 174 Fed. 
 445, holding that riparian owner on navigable stream has right of possession 
 and use of bed of stream between low water mark and bed of channel excepting 
 where such use interferes with public right of navigation. 
 
 Cited in footnote to Webb v. Demopolis, 21 L. R. A. 62, which holds riparian 
 owner's title extends to low-water mark on navigable river. 
 
 Cited in notes (12 L. R. A. 677) on title to soil under navigable rivers; 
 (12 L. R. A. 636) on qualified property in water front; (40 L. R. A. 647) on 
 private contracts respecting wharves; (19 Am. St. Rep. 229, 232, 233) on rights 
 of littoral and riparian owners in navigable waters. 
 Separation of riparian rigrhts from shore lands. 
 
 Cited in Bradshaw v. Duluth Imperial Mill Co. 52 Minn. 62, 53 N. W. 1066, 
 holding sals of submerged laud by riparian proprietor disassociates shore land 
 from riparian right; Gilbert v. Eldridge, 47 Minn. 214, 13 L. R. A. 413, 49 X. W. 
 679, holding where land platted beyond shore line, conveyance of inland block 
 with reference to plat does not carry with it right to submerged blocks and 
 streets; Concord Mfg. Co. v. Robertson, 66 X. H. 20, 18 L. R. A. 690, 25 Atl. 718, 
 holding abutter's private right of use and occupation in public water is severable 
 from estate in upland; Xorthern P. R. Co. v. Scott & H. Lumber Co. 73 Minn. 32, 
 75 X. W. 737, holding riparian rights originally belonging to shore block marked 
 on plat, may be severed therefrom and attached to submerged land; Duluth v. 
 St. Paul R, Co. 49 Minn. 209, 51 X. W. 1163, holding riparian proprietor may 
 convey fee in land above shore line, and reserve private rights in land under water 
 originally appurtenant to estate; Gibson v. Kelly, 15 Mont. 424, 39 Pac. 517, 
 holding riparian proprietor may maintain action for recovery of land between 
 high and low water mark from one in possession without right: Gridley v. 
 Xorthern P. R. Co. Ill Minn. 285, 126 X. W. 897, to the point that riparian 
 rights can be severed and transferred apart from shore: Kelley v. Salvas, 146" 
 Wis. 548, 131 X. W. 436, holding that riparian owner on navigable stream may 
 separate ownership of lands including bank from ownership of bed of stream, 
 and convey them to different persons. 
 
 Cited in note (40 L. R, A. 394) on separation of riparian rights from upland- 
 
7 L.R.A. 722] L. R. A. CASES AS AUTHORITIES. 1400 
 
 Distinguished in State v. St. Paul & D. R. Co. 81 Minn. 424, 84 N. W. 302, 
 holding riparian rights are incident to shore property, having no separate exist- 
 once until severed from paramount estate by act of owner; Lake Shore & M. S. 
 E. Co. v. Platt, 53 Ohio' St. 267, 29 L. R. A. 55, 41 N. E. 243, holding alvean 
 vights are incapable of separation from riparian title to which they are incident. 
 Riparian riuhts following- conveyance of riparian estate. 
 
 Cited in Minneapolis Trust Co. v. Eastman, 47 Minn. 304, 50 N. W. 82, holding 
 conveyance of submerged land above low-water mark carries with it right to 
 subsequent alluvial deposits; Mills v. Evans, 100 Iowa, 716, 69 N. W. 1043, 
 holding riparian owner on navigable lake may construct pier below high-water 
 mark. 
 
 Cited in footnote to Prior v. Swartz, 18 L. R. A. 668, which holds riparian 
 right to build wharves not destroyed by statute designating land for planting 
 oysters. 
 
 Distinguished in St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 
 168 U. S. 367, 42 L. ed. 504, 18 Sup. Ct. Rep. 157, holding grant of right to main- 
 tain dams and sluices in river subject to rights of navigation, and right of public 
 to divert waters for public use. 
 Separation of title to abutting: land and liiuli \vn y. 
 
 Cited in White v. Jefferson, 110 Minn. 288, 32 L.R.A.(N.S-) 778, 124 N. W. 
 373, holding that owner may sell lot abutting on street and part with or reserve 
 fee to middle of street, subject to public easement. 
 
 7 L. R. A. 729, GARDNER v. BUNN, 132 111. 403, 23 N. E. 1072. 
 Proof of execution of power of attorney or confession. 
 
 Cited in Desnoyers Shoe Co. v. First Nat. Bank, 188 111. 316, 58 N. E. 994, Af- 
 firming 89 111. App. 585, and Oppenheimer v. Giershofer, 54 111. App. 41, holding 
 judgment by confession invalid without proof of execution of power of attorney; 
 First Nat. Bank v. Havens & G. Co. 61 111. App. 225, stating proof of execution of 
 power of attorney was filed in compliance with rule announced in main case; 
 Epstein v. Ferst, 35 Fla. 514, 17 So. 414, holding judgment entered without proof 
 of execution of confession of judgment invalid; Matzenbaugh v. Doyle, 156 111. 
 335, 40 N. E. 935, Affirming 56 111. App. 345, holding authority of attorney to 
 execute cognovit and of clerk to enter judgment should fully appear from papers, 
 - and cannot be supported by evidence aliunde. 
 What must be filed. 
 
 Cited in People v. Whitehead, 90 HI. App. 620, holding there must be filed with 
 clerk declaration, original warrant of attorney, affidavit verifying it, and plea 
 confessing amount for which judgment is entered; Snyder Bros. v. Bailey, 165 
 111. 453, 46 N. E. 452, holding clerk authorized to enter judgment on declaration, 
 warrant of attorney valid on its face, proof of its execution and plea of confession. 
 
 Cited in note (13 L. R. A. 800) on proof necessary to authorize entry of judg- 
 ment confessed on warrant of attorney. 
 Strict construction of power. 
 
 Cited in Graves v. Whitney, 49 111. App. 442, holding authority to confess judg- 
 ment without process must be clearly given and strictly pursued; J. W. Butler 
 Paper Co. v. Robbins, 151 111. 624, 38 N. E. 153, holding power conferred by res- 
 olution on president of corporation to borrow money and secure its repayment 
 should be strictly construed. 
 Appearance by attorney as conferring jurisdiction. 
 
 Cited in Ward v. White, 66 111. App. 157, holding jurisdiction of person ac- 
 quired by entry of appearance by attorney in fact; People v. Moore, 143 111. 
 
1401 L. R. A. 'CASES AS AUTHORITIES. [7 L.R.A. 733 
 
 App. 385, holding jurisdiction of both the subject-matter and of the person is 
 <->< -utial to the validity and binding force of a judicial sentence; Forsytb v. 
 Barnes, 228 111. 336, 81 N. E. 1028, 10 A. & E. Ann. Cas. 710, holding confession 
 of judgment on warrant of attorney executed by a woman during coverture is, 
 at common law, void as to her. 
 Confession statutory proceeding 1 . 
 
 Cited in Pond v. Simons, 17 Ind. App. 87, 45 N. E. 48, as holding confession 
 of judgment in vacation statutory proceeding in derogation of common law. 
 Replevin. 
 
 Cited in note (55 L. R, A. 281) on right to replevy property from levying 
 officer. 
 > ori. !!: of property in another's possession under execution. 
 
 Cited in Brant v. Lane, 54 Tex. Civ. App. 429, 118 S. W. 229, to the point 
 that owner may mortgage personal property at the time under levy of an 
 execution. 
 \\ hi> may attack judgment. 
 
 Cited in note (23 Am. St. Rep. 286) on who may attack judgment. 
 
 7 L. R. A. 731, MOORE v. THORP, 16 R. I. 655, 19 Atl. 321. 
 Allowance for improvements. 
 
 Followed in Langley v. Langley, 19 R. I. 506, 36 Atl. 1133, holding cotenant 
 may be allowed value of improvements in case of sale or division of property. 
 
 Cited in Carson v. Broady, 56 Xeb. 654, 71 Am. St. Rep. 691, 77 N. W. 80, 
 holding on partition improvements should be allotted to tenant making them; 
 and on sale proceeds should be divided after deducting sum in which saleable 
 value increased by improvements; Ward v. Ward. 40 W. Va. 621, 29 L. R. A. 461, 
 52 Am. St. Rep. 911, 21 S. E. 746, holding on sale coparcener making improve- 
 ments should receive amount by which value of property is enhanced and balance 
 should be divided; Pulse v. Osborn, 30 Ind. App. 636, 64 X. E. 59, raising, but not 
 deciding, question whether cotenant entitled, upon partition sale, to be recom- 
 pensed for actual amount of present value due to improvements. 
 
 Cited in notes (8 L. R. A. 290) on allowance for improvements; (29 L. R. A. 
 449, 450, 452) liability of cotenants for improvements; (52 Am. St. Rep. 936) 
 on personal liability of cotenant for improvements; (52 Am. St. Rep. 939) on 
 payment of improvements out of proceeds of partition sale. 
 
 7 L. R. A. 733, STATE ex rel. TAYLOR v. EIDSOX, 76 Tex. 302, 13 S. W. 263. 
 Incorporation as affected by inclusion of farming: on vacant land. 
 
 Followed in Ewing v. State, 81 Tex. 177, 16 S. W. 872, holding incorporation 
 invalid which embraced area of 10 square miles, 8 of which was farming and 
 unoccupied land. 
 
 Cited in State v. Baird, 79 Tex. 64, 15 S. W. 98, holding incorporation of town 
 will not be dissolved because small strip of agricultural land included within its 
 limits: McClesky v. State, 4 Tex. Civ. App. 323, 23 S. W. 518, holding attempt 
 to include unreasonable amount of vacant land will annul attempted incorpora- 
 tion; Copeland v. St. Joseph, 126 Mo. 433, 29 S. W. 281, holding inclusion of 
 reasonable amount of agricultural land permissible; State ex rel. Perrin v. Hoard, 
 94 Tex. 529, 62 S. W. 1054, holding Tex. Rev. Stat. art. 580, prohibiting the in- 
 clusion for taxation of lands not used for town purposes embodies rule expressed 
 in main case; Junction City School v. School Dist. Xo. 6 Trustees, 81 Tex. 152, 
 16 S. W. 742, holding question whether incorporated territory excessive and un- 
 reasonable in its limits depends on facts of each case; State v. Merchant, 38 
 
7 L.R.A. 733] L. R. A. CASES AS AUTHORITIES. 1402 
 
 Tex. Civ. App. 228, 85 S. W. 483, holding attempted incorporation of open land 
 covered by swamp, jungles and cow ranches, inhabited in part by transients is 
 invalid; State ex rel. English v. Buchanan, 37 Tex. Civ. App. 327, 83 S. W. 
 723, holding boundaries need not be confined to town proper, of territory incor- 
 porated for free school purposes, and may take in agriculture land, under stat- 
 utes authorizing incorporation for such purpose; Merritt v. State, 42 Tex. Civ. 
 App. 499, 94 S. W. 372, holding statute makes it a question of fact whether 
 territory sought to be incorporated includes territory not intended to be used 
 for town purposes; State ex rel. Richardson v. Larkin, 41 Tex. Civ. App. 263, 
 90 S. W. 912, holding it the duty of the promoters of the corporation to fix 
 limits so as not to include an unreasonable amount of pasture, agriculture and 
 wood land. 
 
 Cited in note (25 L. R, A. 756) on physical characteristics necessary to mu- 
 nicipal recognition. 
 
 Distinguished as relating to incorporation for general municipal purposes in 
 Pinson v. Vesey, 23 Tex. Civ. App. 93, 56 S. W. 593, which related to incorpora- 
 tion for school purposes only. 
 
 7 L. R. A. 734, STATE ex rel. HENDERSON v. LE SUEUR, 99 Mo. 552, 13 
 
 S. W. 237. 
 Social and benevolent incorporations. 
 
 Cited in State ex rel. Hadley v. Meramec Rod & Gun Club, 121 Mo. App. 372, 
 98 S. W. 815, on right to corporate existence under laws permitting organization 
 under benevolent, religious, scientific and educational laws. 
 Construction of "educational" in tax law. 
 
 Cited in Re Moses, 138 App. Div. 529, 123 N. Y. Supp. 443, holding that 
 word "educational" as used in tax law, is used in its broader signification as 
 the act of developing and cultivating various physical, intellectual and moral 
 qualities towards improvement of body, mind and heart. 
 
 7 L. R. A. 736, CALLEN v. JUNCTION CITY, 43 Kan. 627, 23 Pac. 652. 
 Delegation of legislative power. 
 
 Followed in Huling v. Topeka, 44 Kan. 579, 24 Pac. 1110; Emporia v. Ran- 
 dolph, 56 Kan. 118, 42 Pac. 376; Eskridge v. Emporia, 63 Kan. 369, 65 Pac. 
 694, holding finding of district judge as to extension of city limits a judicial 
 duty. 
 
 Cited in Hurla v. Kansas City, 46 Kan. 745, 27 Pac. 143, holding power to ap- 
 prove, disapprove, or modify ordinance extending city limits, not a delegation of 
 legislative power; Pelletier v. Ashton, 12 S. D. 372, 81 N. W. 735, upholding right 
 of court to exclude from proposed city limits large tracts of cultivated land; 
 State ex rel. Godard v. Johnson, 61 Kan. 841, 49 L. R. A. 674, 60 Pac. 1068 (dis- 
 senting opinion), majority holding statute creating court of visitation uncon- 
 stitutional as commingling legislative, judicial, and executive functions; Re 
 North Milwaukee, 93 Wis. 629, 631, 33 L. R. A. 643, 67 N. W. 1033 (dissenting 
 opinion), majority holding determination of what territory should be included 
 in extending city limits exercise of legislative power; Hutchinson v. Leimbach, 
 68 Kan. 39, 63 L.R.A. 631, footnote, p. 630, 74 Pac. 598, holding act permitting re- 
 moval of territory from corporate limits of city, upon petition, unconstitutional; 
 O'Neill v. Yellowstone Irrig. Dist, 44 Mont. 507, 121 Pac. 283, holding that 
 statute conferring alleged nonjudicial duties upon judges in connection with 
 irrigation law of 1909 is not unconstitutional; Sanderlin v. Luken, 152 N. C. 
 744, 68 S. E. 225, holding an act conferring upon the clerk of the superior court 
 power to establish a drainage district is valid; Fairview v. Giffee, 73 Ohio St. 
 
1403 L. R. A. CASliS AS AUTHORITIES. [7 L.R.A. 740 
 
 192, 76 X. E. 865, holding power conferred upon the courts to hear and deter- 
 mine questions as to detaching unplatted lands from cities and attachment of 
 same to adjacent townships is an exercise of judicial power; New Orleans & 
 N. W. R. Co. v. Vidalia, 117 La. 573, 42 So. 139, holding power to determine, 
 in a given case, represented by parties having property or other rights at stake, 
 and independent of the exercise of the enacting power, is judicial ; Re Counties 
 Comprising Seventh Judicial Dist. 22 Okla. 448, 98 Pac. 557, holding courts may 
 determine whether a municipal corporation shall be created, or adjoining ter- 
 ritory annexed; Denny v. Des Moines County, 143 Iowa, 474, 121 N. W. 1066, 
 holding statutes can be upheld only where they leave to the courts the deter- 
 mination of questions of fact, as distinguished from the exercise of a general 
 discretion involving the public interests; State ex rel. Taylor v. Missouri P. R. 
 Co. 76 Kan. 484, 92 Pac. 606, holding an act conferring upon the court power 
 by mandamus proceedings to force compliance with rules of warehouse and 
 railroad commission is a valid exercise of judicial power; Henrico County v. 
 Richmond, 106 Va. 299, 117 Am. St. Rep. 1001, 55 S. E. 683, holding an act, 
 providing for extension of corporate limits of a city and conferring upon the 
 circuit courts within the territory power to ascertain necessity and expediency 
 of incorporation, is valid; Hutchinson v. Leimbach, 68 Kan. 39, 63 L.R.A. 630, 
 104 Am. St. Rep. 384, 74 Pac. 598, holding an act providing for removal of any 
 tract of land from corporate limits upon petition and after published notice, 
 when district court shall find no public or private rights are effected injuriously, 
 Is invalid as conferring legislative power on court. 
 
 Cited in footnote to Re North Milwaukee, 33 L. R. A. 638, which holds void 
 act requiring court to determine whether or not territory should be incorporated 
 as village. 
 
 Cited in note (11 L. R. A. 779) on extension of city limits. 
 
 Disapproved in Re Xorth Milwaukee, 93 Wis. 625, 33 L. R. A. 642, 67 N. W. 
 1033, holding act of determining the advisability of incorporation and fixing 
 boundaries not determination of question of fact, but exercise of legislative dis- 
 cretion. 
 General lavrs. 
 
 Cited in Conklin v. Hutchinson, 65 Kan. 584, 70 Pac. 587, conceding that pro- 
 visions for organization of cities must, under state Constitution, be made by 
 general law; Paul v. Walkerton, 150 Ind. 570, 50 N. E. 725, to point general 
 laws imposing conditions on annexation of territory, and vesting power in boards 
 or courts to determine question, are valid. 
 
 Cited in note (27 L. R., A. 743) on annexation by speciil law. 
 Dm* process of law. 
 
 Cited in notes (27 L.R.A. 743) on taking property without due process of law; 
 (44 L. ed. U. S. 395) on power of legislature to annex rural lands to munici- 
 palities. 
 
 7 L. R. A. 740, BROCKWAY v. PETTED, 79 Mich. 620, 45 N. W. 61. 
 Liability of surety on liquor bond. 
 
 Cited in Coleman v. People, 78 111. App. 215, holding liability of sureties on 
 liquor dealer's bond continues during time mentioned in bond; Wright v. Treat, 
 83 Mich. 115, 47 X. W. 243, holding surety on liquor bond not discharged by re- 
 moval from corporation limits, nor because principal notified to file new bond 
 .and discontinue business in meantime. 
 
 Cited in note (10 L. R. A. 81, 82) as to liquor bonds. 
 
7 L.R.A. 740] L. R. A. CASES AS AUTHORITIES. 1404 
 
 Recital as covenant or promise. 
 
 Cited in People use of Houghton v. Xewberry, 152 Mich. 299, 116 N. W. 419 
 (dissenting opinion), on effect to be given recitals in bond. 
 
 Distinguished in Monks v. Provident Inst. for Savings, 64 N. J. L. 89, 44 Atl. 
 968, holding recital will not constitute covenant or promise unless such was in- 
 tention of parties, and it must contain all the elements of a contract. 
 Estoppel. 
 
 Cited in Lyon Bros. & Co. v. Stern, K. & B. 110 La. 478, 34 So. 641, holding 
 corporation and surety, in action on auctioneer's bond, estopped from asserting 
 that corporation could act as auctioneer; Kirkpatrick v. Phillips, 162 Mich. 254, 
 127 N. W. 340, holding that sureties on bond of saloonkeeper are estopped to 
 deny liability thereon, because irregularity in execution, where saloon business 
 was conducted under it. 
 
 7 L. R, A. 743, SANDERS v. BAGWELL, 32 S. C. 238, 10 S. E. 946. 
 Effect of material alteration. 
 
 Approved in Richardson v. Fellner, 9 Okla. 521, 60 Pac. 270, holding note 
 vitiated by material alteration; Sloan v. Latimer, 41 S. C. 219, 19 S. E. 491, 
 holding surety discharged by extension of payment with privilege of payment 
 before maturity. 
 
 Cited in White v. Harris, 69 S. C. 70, 104 Am. St. Rep. 791, 48 S. E. 41, 
 holding the material alteration of a note extinguishes all liability thereon as 
 against parties not consenting. 
 
 Cited in footnotes to Gleason v. Hamilton, 21 L. R. A. 210, which holds mort- 
 gage not invalidated by alteration by attorney drawing same without mortgagee's 
 knowledge; Brown v. Johnson Bros. 51 L. R. A. 403, which holds maker released 
 by payee's addition of name of other person as comaker; Rochford v. McGee, 61 
 L. R. A. 335, which holds removal of note written below perforated line on 
 application for insurance material alteration rendering it void; Simmons v. At- 
 kinson &, L. Co. 23 L. R. A. 599, which holds insertion of words ''or bearer" and 
 place of payment a material alteration; Foxworthy v. Colby, 62 L. R. A. 393, 
 which holds insertion of word "gold" before word "dollars" material alteration. 
 
 Cited in notes (13 L.R.A. 314) that party producing instrument must account 
 for alterations; (86 Am. St. Rep. 115) on unauthorized alteration of written 
 instruments. 
 Original consideration as supporting: addendum. 
 
 Approved in Harrell v. Parrott, 50 S. C. 23, 27 S. E. 521, holding new promise 
 to pay increased rate of interest supported by original consideration. 
 
 7 L. R. A. 745, FOWLER v. ALLEN, 32 S. C. 229, 10 S. E. 947. 
 Liability of conditional sureties. 
 
 Approved in Greenville v. Ormand, 51 S. C. 71, 39 L. R. A. 853, 64 Am. St. Rep. 
 663, 28 S. E. 50, holding absence of sureties on note given to maker for negotia- 
 tion will not preclude evidence by one who, after payee's refusal to discount it, 
 advanced money thereon; Carter v. Moulton, 51 Kan. 15, 20 L. R. A. 311, 37 
 Am. St. Rep. 259, 32 Pac. 633, holding one of several makers of negotiable note 
 perfect in form, executed by several persons, presumed authorized to deliver; 
 Sullivan v. Williams, 43 S. C. 512, 21 S. E. 642, holding sureties on attachment 
 bond delivered by principals to innocent obligee estopped to show forgery of sub- 
 sequent signatures. 
 Liability as between innocent parties. 
 
 Cited in Newman v. Scarborough, 115 La. 866, 112 Am. St. Rep. 278, 40> 
 
3405 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 749 
 
 So. 248, holding as between the creditor and a guarantor signing where there 
 is error as to subject matter the guarantor must answer to the extent that 
 his error has caused the loss. 
 
 7 L. R. A. 747, MOYER v. DRUMMOND, 32 S. C. 165, 17 Am. St. Rep. 850, 10 
 
 S. E. 952. 
 "Family" within homestead lairs. 
 
 Approved in Scott v. Mosely Bros. 54 S. C. 378, 32 S. E. 450, holding son caring 
 for widowed mother head of family under homestead law, as against his own cred- 
 itors; Holloway v. Holloway, 80 Ga. .379, 11 L. R. A. 519, 22 Am. St. Rep. 484, 
 12 S. E. 943, holding widow supporting husband's children by former wife head 
 of family under homestead law, although such support is voluntary; Re Morrison, 
 110 Fed. 735, holding single man residing with and supporting widowed mother 
 and minor brother entitled to homestead exemption in bankruptcy as head of 
 family; Fant v. Gist, 36 S. C. 578, 15 S. E. 721, holding man supporting his de- 
 'ceased wife's niece, who spends part of her time out of school with him, entitled 
 to homestead as head of family; Cross v. Benson, 68 Kan. 511, 64 L.R.A. 567, foot- 
 note, p. 560, 75 Pac. 558, holding grandchild living with grandparents, and de- 
 pendent upon them for support, member of their family. 
 
 Cited in Fox v. Waterloo Nat. Bank, 126 Iowa, 485, 102 N. W. 424, holding 
 ra divorced husband with adult daughter living with him as housekeeper may 
 claim exemptions under homestead law; Re McGowan, 170 Fed. 495, holding a 
 bankrupt, who is a single man living alone with his parents living is not a 
 head of a family within provisions of homestead exemption law; Adams v. 
 Clark, 48 Fla. 211, 37 So. 734, holding where grandchild is taken by grand- 
 parents when a month old who assume entire care, education and control of her 
 and she continues to live with the grandfather until his death, the grandfather 
 was legally head of a family. 
 
 Cited in footnotes to Bosquett v. Hall, 9 L. R. A. 351, which refuses homestead 
 exemption because of residence of children strangers in blood ; Wilkinson v. Mer-. 
 rill, 11 L. R. A. 632, which holds householder not deprived of homestead right by 
 death of entire family; Cross v. Benson, 64 L.R.A. 560, which holds wife the 
 family of the owner within meaning of the homestead laws, where husband and 
 wife occupy land belonging to him as a homestead. 
 
 Cited in notes (9 L.R.A. 804) as to homestead exemption; (4 L.R.A. (N.S.) 
 384) on what constitutes a "family" under homestead and exemption laws; 
 (70 Am. St. Rep. 107. 109) on who is head of family within homestead law. 
 Exemption in partnership property. 
 
 Approved in Dennis v. Kass, 11 Wash. 356, 48 Am. St. Rep. 880, 39 Pac. 656, 
 holding partner entitled to exemption out of partnership property when no part- 
 nership debts remain unpaid; Adams v. Church, 42 Or. 274, 59 L. R. A. 785, 95 
 Am. St. Rep. 740, 70 Pac. 1037. holding land acquired under timber-culture claim, 
 and conveyed to partnership, not liable for partnership debts contracted prior to 
 issuance of final certificate. 
 
 Distinguished in Ex parte Karish, 32 S. C. 438, 11 S. E. 298, holding partners 
 not entitled to exemption out of firm assets until partnership creditors satisfied. 
 
 7 L. R. A. 749, WHITAKER v. RICHARDS, 134 Pa. 191, 19 Am. St. Rep. 684, 
 
 19 Atl. 501. 
 Sureties; instrument signed by part only of obligors named. 
 
 Cited in Gleeson's Estate, 192 Pa. 283, 44 W. N. C. 325, 73 Am. St. Rep. 808, 
 43 Atl. 1032, holding omission of one of several obligors named in bond to join in 
 ^execution not defense as to obligors who do sign; Snyder's Estate, 7 Kulp, 415, 
 
7 L.R.A. 749] L. R. A. CASES AS AUTHORITIES. 1406 
 
 holding no condition implied to execution by each of several obligors in bond 
 that same shall be executed by all persons named in it, before it becomes binding 
 upon any; Weissport v. Welsh, 6 Northampton Co. Rep. 246, holding omission of 
 tax collector to sign official bond with sureties not release of parties signing; 
 Hall v. Kintz, 13 Pa. Co. Ct. 27, 2 Pa. Dist. R. 617, holding attachment bond 
 signed with firm name and by one partner individually, with name of one surety, 
 sufficient; Reed v. McGregor, 62 Minn. 97, 64 N. W. 88, holding surety signing 
 under belief that another person named in bond will sign, but without making 
 signature conditioned on such person signing, is bound; Winters v. Robison, 14 
 Pa. Co. Ct. 265, holding existence of additional seal on bond not sufficient to 
 charge obligee with notice that signature of surety is on condition that another 
 signature be procured; Byrod v. Svveigart, 20 Lane. L. Rev. 276, holding note 
 signed on condition that it should not be binding unless signed by others named 
 not enforceable unless so signed; Maylor v. Stene, 96 Minn. 60, 104 N. W. 685 r 
 holding in absence of evidence to the contrary a party who signs and delivers 
 an instrument is bound by the obligation he assumes although it is not signed 
 by all the parties for whose signature it was prepared; Raeder v. Monks, 14 
 Luzerne Legal Reg. Rep. 348, holding on the facts, that a condition, if there 
 was one, for signature by another had been waived; Reed v. Coughran, 21 S. D, 
 260, 111 N. W. 559, holding that both parties are bound by written contract 
 executed by one of them only, but accepted, retained and acted on by others. 
 
 Cited in footnote to Hurt v. Ford, 41 L. R. A. 823, which denies right to make 
 subsequent signature of another person essential to validity of note delivered to 
 payee or his agent. 
 
 Cited in notes (45 L. R. A. 325) on conditional execution of contracts; (8 L~ 
 R. A. 735) on suretyship. 
 
 Distinguished in Yohn v. Shumaker, 28 Pittsb. L. J. N. S. 127, 5 Pa. Super. Ct_ 
 322, 41 W. N". C. 30, holding surety delivering signed obligation to payee, with 
 understanding that he is to procure signature of principal, who refuses to sign, 
 not bound. 
 Parol evidence to vary writing. 
 
 Cited in note (11 Eng. Rul. Cas. 234) on parol evidence to contradict bonds. 
 
 7 L. R. A. 750, PEPPER v. CAIRNS, 133 Pa. 114, 19 Am. St. Rep. 625, 19^ 
 
 Atl. 336. 
 Misappropriation of money by ag-ent. 
 
 Cited in Lerch v. Bard, 162 Pa. 318, 34 W. N. C. 540, 29 Atl. 890, holding note 
 not necessarily invalidated for want of delivery, where agent for lender and bor- 
 rower deposited proceeds to individual account; Kirchner v. Schmid, 7 Misc. 461, 
 25 N. Y. Supp. 85, holding plaintiff cannot have mortgage canceled which his 
 agent delivered to defendant and received value for; Himes v. Herr, 13 Lane. L. 
 Rev. 15, holding fact that attorney is usually employed by lender to receive 
 moneys not sufficient authority to collect in particular case. 
 
 Cited in note (19 Am. St. Rep. 627) on who must lose by embezzlement of 
 agent acting in double capacity. 
 Declarations of agent a *i to authority. 
 
 Cited in Harvey v. Schuylkill Real Estate Title Ins. & T. Co. 24 Pa. Co. Ct. 
 599, holding authority of agent not provable by his declarations. 
 Proof of agency. 
 
 Cited in Stevenson v. Henning, 34 Pa. Super. Ct. 187, on facts sufficient to 
 infer a legal right in one to act as agent; Re Schoeller, 36 Pittsb. L. J. X. S. 
 
1407 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 752 
 
 192, holding declarations of husband inadmissible to show that he is agent 
 for wife. 
 
 7 L. R. A. 752, PIERCE v. CLELAND, 133 Pa. 189, 19 Atl. 352. 
 Servitudes; when license revocable. 
 
 Cited in Willis v. Erie City Pass. R. Co. 188 Pa. 67, 41 Atl. 307, holding license 
 irrevocable when licensee -has expended money upon faith of it; Bryn Mawr 
 Hotel Co. v. Baldwin, 12 Montg. Co. L. Rep. 149, holding conveyance of part of 
 estate implies grant or reservation, as case may be, of apparent servitudes created 
 by vendor in favor of one portion against another, if intended to be permanent; 
 Allegheny Nat. Bank v. Reighard, 32 Pittsb. L. J. N. S. 52, holding common en 
 trance to two buildings on adjoining lots to be in nature oi easement usable as 
 long as building stood; Western U. Teleg. Co. v. Pennsylvania Co. 129 ?ed. 858, 
 holding that license in writing to occupy lands of railroad company for telegraph 
 line, when ripened by use into interest in realty, becomes nonrevocable ; Binder 
 v. Weinberg, 94 Miss. 827, 48 So. 1013, holding an agreement and use of building 
 in a certain way constituted an executed license such as to estop grantee in 
 deed to take over part of hallway and erect room interfering with passage and 
 light; Western U. Teleg. Co. v. Pennsylvania Co. 68 L.R.A. 977, 64 C. C. A. 
 285, 129 Fed. 858, holding an agreement for construction and operation of a 
 telegraph line on railroad company's right of way, and use of such line, for 
 many years created an easement not revocable at will of railroad company. 
 
 Cited in notes (10 L. R. A. 487) on effect of executed license; (49 L. R. A. 
 514) on revocability of license to maintain burden on land, after licensee in- 
 curred expense; (31 Am. St. Rep. 718) on nature and revocation of parol li- 
 censes; (16 Eng. Rul. Cas. 80) on revocability of license. 
 
 Distinguished in Baldwin v. Taylor, 166 Pa. 514, 31 Atl. 250, holding license 
 to adjoining proprietor to use stairway, for temporary purpose, in consideration 
 of conveyance of land, not assignable. 
 Rights of purchaser of servient estate. 
 
 Cited in Hunter v. Wilcox, 23 Pa. Co. Ct. 194, and Geible v. Smith, 146 Pa. 285, 
 29 W. N. C. 467, 28 Am. St. Rep. 796, 23 Atl. 437, holding purchaser of real es- 
 tate takes subject to continuous and apparent servitude, in absence of express 
 reservation. 
 
 Cited in notes (8 L.R.A. (N.S. ) 418) on physical conditions charging pur- 
 chaser of servient estate with notice of easement; (13 L.R.A.(N.S.) 132) on 
 !">~-<'ssion of easement as notice of title. . 
 
 r.i|iii(> : jurisdiction. 
 
 Cited in Manbeck v. Jones, 190 Pa. 175, 42 Atl. 536, Affirming 21 Pa. Co. Ct. 
 304, holding equity will enjoin obstruction of public highway, before question 
 of right decided at law, when evidence conclusive as to existence of highway, and 
 action for damages inadequate; Casey v. Canning. 17 Pa. Dist. R. 390, holding 
 where owner conveys adjoining lots at different times to different parties and 
 a privy wall and building on one lot had been used for years continuously by 
 other lot purchaser such lot was subject to the servitude. 
 Creation and o-iiveyance of easements. 
 
 Cited in notes (26 L.R.A. (X.S.) 366) on easements created by severance of 
 tract with apparent benefit existing; (81 Am. St. Rep. 768; 136 Am. St. Rep. 
 698) on creation and conveyance of easements appurtenant; (122 Am. St. Rep. 
 210; 10 Eng. Rul. Cas. 59) as to when grant of an easement will be implied. 
 
7 L.R.A. 755] L. R. A. CASES AS AUTHORITIES. 1408 
 
 7 L. R. A. 755, BROOKHAVEN v. SMITH, 118 N. Y. 634, 23 N. E. 1002. 
 Estoppel. 
 
 Cited in Blumenauer v. O'Connor, 32 Misc. 20, G6 X. Y. Supp. 137, refusing to 
 order removal of encroaching wall where line practically determined by plaintiff 
 at time of construction; Bloch v. Sammons, 37 Or. 604, 62 Pac. 290, holding 
 party innocently misrepresenting title to property intending to influence pur- 
 chaser estopped to assert contrary title; Moore v. Brownfield, 10 Wash. 444, 39 
 Pac. 113, holding party in honest belief that title in government, inducing an- 
 other to settle and improve land, estopped to assert title; Wetmore v. Royal, 55 
 Minn. 168, 56 N. W. 594, refusing to correct mistaken date in mechanic's lien rec- 
 ord as against purchaser on foreclosure misled thereby; Hazard v. Wilson, 22 
 Misc. 401, 50 N. Y. Supp. 280, holding mortgagee estopped to foreclose against 
 improved acre covered by mortgage of tract where unselected acre released for 
 cash; Teachers' Bldg. & L. Asso. v. Severance, 41 App. Div. 316, 58 N. Y. Supp. 
 464, holding acquiescence in mortgagor's deduction of interest each month ior 
 six years estops association to deny right; Moore v. Nye, 49 N. Y. S. R. 170, 21 
 N. Y. Supp. 94, holding mortgagee under deed absolute in form estopped by 
 denial of interest in property to assert title against mortgagor's Vendee; Mattes 
 v. Frankel, 157 N. Y. 609, 68 Am. St. Rep. 804, 52 N. E. 585, Reversing 65 Hun ; 
 206, 20 N. Y. Supp. 145, holding owner of adjoining lots estopped to deny vendee's 
 right of way to lot sold, where pointed out during negotiations, though not in- 
 cluded in deed; Williamson v. Jones, 39 W. Va. 269, 25 L. R. A. 237, 19 S. E. 
 436, holding owner causing void judicial sale of land and receiving proceeds can- 
 not attack vendee's title after improvements made; Morris v. Wheat, 8 App. D. 
 C. 387, holding party granting as guardian, but warranting in own right, es- 
 topped to deny grantee's title; Re Turfler, 1 Misc. 71, 1 Power, 402, 23 N. Y. 
 Supp. 135, holding heir assenting to payment in accordance with intent of testa- 
 tor estopped to contest executor's account; Williams v. Whittell, 69 App. Div. 
 348, 74 N. Y. Supp. 820, holding party receiving benefits under sealed agreement 
 not to attack will estopped to assert invalidity for want of consideration; Craw- 
 ford v. Ormsbee, 6 App Div. 52, 39 N. Y. Supp. 740, holding heir estopped from 
 contesting will, where conveyance was made to him by reversioner on strength of 
 his statement that he would make no claim against the estate; Dovale v. Acker- 
 mann, 39 N. Y. S. R. 518, 15 N. Y. Supp. 196, holding party obtaining payments 
 through admission that payer not legally liable estopped to assert liability; 
 Munson v. Magee, 22 App. Div. 345, 47 N. Y. Supp. 942, holding party acquiesc- 
 ing in apparent valid release of contract estopped to assert invalidity against 
 party incurring expense in reliance thereon; Dr. David Kennedy Corp. v. Ken- 
 nedy, 36 App. Div. 603, 55 N. Y. Supp. 917, enjoining party selling good will of 
 patent-medicine business employing his name, from receiving mail addressed 
 to him; Dwight v. Williams, 25 Misc. 670, 55 N. Y. Supp. 201, holding creditors 
 estopped where debtor could not assert invalidity of oral contract acted upon 
 by third parties; Tobias v. Morris, 126 Ala. 551, 28 So. 517, holding estoppel 
 for jury where wife made deposit, but permitted husband to give check signa- 
 ture to teller; Krakauer v. Chapman, 16 App. Div. 125. 45 X. Y. Supp. 127 (dis- 
 senting opinion), majority holding failure of creditor for two months to no- 
 tify party authorizing purchaser to draw on him for amount of purchase, that 
 first draft not in full, works no estoppel; Bank of Monongahela Valley v. Wes- 
 ton, 172 N. Y. 267, 64 N. E. 946, holding partner permitting use of firm name 
 as accommodation indorser estopped from denying validity of such indorsement 
 made after dissolution of partnership; McGuire v. Hall, 78 App. Div. 643, 80 
 N. Y. Supp. 1139, holding owner bound by arbitrary -agreement with architect 
 
3409 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 759 
 
 as to cost and exchange value of building, in estimating commissions; Western 
 New York & P. R. Co. v. Rea, 83 App. Div. 579, 81 N. Y. Supp. 1093, holding 
 owner, inducing lessee to believe that premises were owned by her husband and 
 permitting substantial improvements, estopped to deny validity of lease; Horton 
 v. Erie Preserving Co. 90 App. Div. 261, 85 N. Y. Supp. 503, holding subscriber 
 of funds for building of factory estopped from avoiding same for delay in con- 
 struction, where he permitted building to go on without protest; Re Turfler, 1 
 Power, 402, 1 Misc. 71, 23 N. Y. Supp. 135, holding residuary legatees, assent- 
 ing to certain payments, estopped from claiming they were made illegally; 
 Deering v. Schreyer, 110 App. Div. 206, 97 X. Y. Supp. 14, holding when party 
 by declaration or conduct has induced another to act in a particular manner, 
 to his injury, he will not thereafter be permitted to deny or repudiate; American 
 Exch. Nat. Bank v. Woodlawn Cemetery, 120 App. Div. 130, 105 N. Y. Supp. 
 305, holding a cemetery association liable to an innocent purchaser of bonds 
 where it permitted an over issue by its officer through failure to examine officer's 
 books for more than seven years; Dickinson v. Blake, 116 App. Div. 548, 101 
 N. Y. Supp. 709, holding remaindermen estopped to deny that mortgage covered 
 their interest where they consented to mortgage on their interest to secure loan 
 to their mother and mortgagee was induced by their attorney to believe their 
 interest w T as covered; Todaro v. Somerville Realty Co. 138 App. Div. 8, 122 X. 
 Y. Supp. 509, to the point that question of estoppel may become for court and 
 not for jury, even in action in ejectment; Dallett v. Ogden, 20 Pa. Dist. R. 850, 
 holding that declarations that one is partner, not communicated to person ex- 
 tending credit, are not relevant to hold alleged partner by equitable estoppel. 
 
 Cited in footnote to Old Times Distillery Co. v. Casey, 42 L. R. A. 466, which 
 holds right to enjoin use of trade-mark lost by ten years' delay. 
 
 Cited in notes (13 L. R. A. 270) on what constitutes equitable estoppel; (13 
 L.R.A. 271) on doctrine of estoppel in pais; (24 Am. St. Rep. 212) on estoppel 
 by representations; (27 Am. St. Rep. 295) on estoppel against owner; (11 Eng. 
 Rul. Gas. 103; 15 Eng. Rul. Cas. 417) on estoppel by conduct. 
 
 Distinguished in Marden v. Dorthy, 160 N. Y. 59, 46 L. R. A. 701, 54 N. E. 
 726, holding party not estopped even against bona fide mortgagees to deny sig- 
 nature to mortgage where obtained by trick and without negligence; Card v. 
 Moore, 68 App. Div. 336, 74 N. Y. Supp. 18, holding parties forming imperfect 
 corporation not estopped, as between themselves, by contract making it rvirty, 
 to deny its existence; Syracuse Solar Salt Co. v. Rome, W. & O. R. Co. 67 Hun, 
 162, 22 N. Y. Supp. 321, holding owner not estopped by silence at foreclosure sale 
 of street railway to assert title to highway against purchaser: Hey v. Collman, 
 78 App. Div. 587, 79 N. Y. Supp. 778, holding claimant of right of way not es- 
 topped from asserting title by adverse possession because silent at sale of serv- 
 ient tenement. 
 Tide lands. 
 
 Cited in Rockaway Park Improv. Co. v. New York, 140 App. Div. 170, 124 
 N. Y. Supp. 1096, to the point that title to lands beneath waters of Jamaica 
 bay is in sovereign and its grantees. 
 
 Cited in note (64 L. R. A. 336) on municipal ownership of tide lands. 
 
 7 L. R. A. 759, WELLS v. SALINA, 119 N. Y. 280, 23 N. E. 870. 
 
 On a subsequent appeal in 71 Hun, 565, 25 N. Y. Supp. 134, plaintiff is held 
 to have right of action as equitable assignee of original claim. 
 Powers of municipality. 
 
 Approved in People ex rel. Coon v. Wood, 35 N. Y. S- R. 843, 12 N. Y. Supp. 
 436, holding town's resolution to pay specified amount per day for prosecution 
 L.R.A. Au. Vol. I. 89. 
 
7 L.R.A. 759] L. R. A. CASES AS AUTHORITIES. 1410 
 
 of criminal actions ineffectual to l >\u(i it in absence of statutory authority; 
 People ex rel. Bowles v. Burrell, 14 Misc. 220. 35 N. Y. Supp. 608, holding that 
 unauthorized highway commissioners cannot pledge town's credit for repair 
 of highways and bridges, notwithstanding local custom; Queens County Water 
 o. v. Monroe, 83 App. Div. 110, 82 N. Y. Supp. 610, holding that preliminary 
 requirements of statute authorizing city to acquire land for increasing water 
 supply must be strictly complied with; Water Comrs. v. Westchester County 
 Waterworks Co. 176 N. Y. 251, 68 N. E. 348, holding appraisal of property of 
 waterworks company, based on illegal contract with village, invalid. 
 
 Cited in People ex rel. Yost v. Becker, 203 N. Y. 205, 96 N. E. 381, holding 
 that legislature has no power to create legal municipal corporations other than 
 towns, counties, cities and villages. 
 
 Cited in note (21 Am. St. Rep. 373) on powers of municipal corporations. 
 
 Distinguished in Birge v. Berlin Iron Bridge Co. 133 N. Y. 486, 31 N. E. 609, 
 holding act permitting special town meetings to vote on raising and appropriat- 
 ing moneys for bridges did not abolish pre-existing limitation upon amount of 
 taxation; Mulnix v. Mutual Ben. L. Ins. Co. 23 Colo. 80, 33 L. R. A. 832, 46 
 Pac. 123, holding state not liable on quantum meruit for goods received under il- 
 legal purchase. 
 To liorrow money. 
 
 Approved in People ex rel. Read v. Smithville, 85 Hun, 116, 32 X. Y. Supp. 
 668, holding town not liable upon indebtedness because vote in incurring same not 
 by ballot as prescribed; Scott v. Twombly, 20 Misc. 653, 46 N. Y. Supp. 1084, 
 holding act authorizing villages to acquire lands for parks does not authorize 
 issuing of bonds; Jamaica Sav. Bank v. New York, 61 App. Div. 471, 70 N. Y. 
 Supp. 967 (dissenting opinion), majority holding that town may borrow money 
 for authorized purpose where supervisors may authorize town to borrow for town 
 purposes. 
 
 Cited in Oneida v. King, 116 App. Div. 37, 101 N. Y. Supp. 239, holding the 
 power of a city to issue bonds to relieve property owners of assessments against 
 their property for public improvements, must be derived from legislative enact- 
 ment; Luther v. Wheeler, 73 S. C. 90, 4 L.R.A. (N.S.) 750, 52 S. E. 874, 6 A. 
 & E. Ann. Cas. 754, holding power to borrow money is not a necessary incident 
 of municipal life, and hence does not exist unless expressly given or as incident 
 to exercise of a power or duty imposed or conferred; Butts County v. Jackson 
 !Bkg. Co. 129 Ga. 806, 15 L.R.A. (N.S.) 572, 121 Am. St. Rep. 244, 60 S. E. 149, 
 Hiolding the constitutional scheme of defraying current expenses by taxation ex- 
 cludes the idea of paying them in any other way; McCurdy v. Shiawassee, 154 
 Mich. 565, 118 N. W. 625, holding counties have no power to borrow money to 
 pay current expenses; Acme Road Machinery Co. v. Bridgewater, 104 App. Div. 
 604, 93 N. Y. Supp. 494 (dissenting opinion), on power of town to incur lia- 
 bility not expressly authorized. 
 
 Cited in notes (9 L.R.A. 497) on power of municipal corporations to borrow 
 money; (51 Am. St. Rep. 828, 829) on municipal bonds in hands of bona fide 
 holders. 
 
 Distinguished in Birge v. Berlin Iron Bridge Co. 133 N. Y. 486, 31 N. E. 609, 
 holding that special town meeting called for considering question of raising and 
 appropriating moneys may apply for authority to borrow money. 
 
 Limited in New York & R. Cement Co. v. Keator, 62 App. Div. 580, 71 N. Y. 
 Supp. 185, holding that submission of proposition to raise money includes rais- 
 :ing by issuing bonds or other obligations- 
 
1411 L. E. A. CASES AS AUTHORITIES. [7 L.R.A. 765 
 
 7 L. R. A. 765, GARY LIBRARY v. BLISS, 151 Mass. 364, 25 N. E. 902. 
 Municipalities as trustees. 
 
 Cited in note (16 L. R. A. 695) on authority of legislature to remove munici- 
 pality from trusteeship. 
 Public charities. 
 
 Cited in Davis v. Barnstable, 154 Mass. 225, 28 N. E. 165, holding gift to pro- 
 mote public education constitutes public charity; St. Paul's Church v. Atty. 
 Gen. 164 Mass. 198, 41 N. E. 231, upholding gift to library, first mentioning 
 limited number of beneficiaries, but finally providing for use by public; Woman's 
 Christian Nat. Library Asso. v. Fordyce, 79 Ark. 538, 86 S. W. 417, holding 
 public libraries fall within the spirit and analogy of charitable trusts; Molly 
 Varnum Chapter, D. A. R. v. Lowell, 204 Mass. 492, 26 L.R.A.(N.S-) 709, 90 
 N. E. 893, holding a corporation chartered to encourage and promote historical 
 research and publication of results without pecuniary profit or charge comes 
 -within statutory category and its property is exempt; Portneuf Irrigating Co. 
 v. Budge, 16 Idaho, 132, 100 Pac. 1046, holding fact that one canal will irrigate 
 20,000 acres while another will irrigate only 2500 acres, does not make it a 
 more necessary public use. 
 
 Cited in footnote to People ex rel. Atty. Gen. v. Dashaway Asso. 12 L. R. A. 
 117, which holds promotion of cause of temperance too vague description of 
 purpose for which corporation formed. 
 
 Cited in note (13 L. R. A. 218) on power of municipal corporation to take and 
 administer property in trust for charitable uses. 
 Gifts for benefiting inhabitants of town. ' 
 
 Cited in Sears v. Chapman, 158 Mass. 401, 35 Am. St. Rep. 502, 33 N. E. 
 604, upholding gift for public charity, the whole to be under exclusive control 
 of inhabitants of town; Boston v. Doyle, 184 Mass. 380, 68 N. E. 851, holding 
 title to charitable fund given by Benjamin Franklin to town of Boston to be 
 in city of Boston. 
 Obligations arising? ont of acceptance of gift. 
 
 Cited in Quincy v. Atty. Gen. 160 Mass. 434, 35 X. E. 1066, holding direction 
 in charitable gift requiring town to guarantee fund with 6 per cent interest 
 not requiring guaranty of specified interest; Atty. Gen. ex rel. Spalding v. 
 Nashua, 67 N. H. 480, 32 Atl. 852, holding by acceptance of gift city agrees 
 to perform conditions attached to it. 
 Power of courts to modify details of management of charitable trusts. 
 
 Cited in Lackland v. Walker, 151 Mo. 259, 52 S. W. 414, upholding power of 
 court of chancery to alter administrative details of public charity when rea- 
 sonably necessary; Crow ex rel. Jones v. Clay County, 196 Mo. 266, 95 S. W. 
 369, on exercise of discretion in carrying out requirements of a charity; Wor- 
 cester City Missionary Soc. v. Memorial Church, 186 Mass. 538, 72 N. E. 71, 
 holding where language is imperative in giving the care, custody and manage- 
 ment to deacons the corporation cannot deprive them of the management. 
 
 Distinguished in Ware v. Fitchburg, 200 Mass. 67, 85 N. E. 951, holding 
 where testator left money to found hospital, merely expressing desire that a 
 substantial building be erected, a wide discretion ^remained with agents and 
 officers in exercise of the fund. 
 Diversion of trust. 
 
 Cited in Codman v. Crocker, 203 Mass. 150, 25 L.R.A.(N.S.) 990, 89 N. E. 
 177, on appropriation to a different use of property dedicated to a public use 
 for a particular purpose. 
 
7 L.R.A. 765] L. R. A. (ASKS AS AUTHORITIES. 1412 
 
 Power of majority to bind board. 
 
 Cited in footnote to Honaker v. Board of Education, 32 L. R. A. 413, which 
 denies power of members of board of education acting separately to bind them- 
 selves as board. 
 Power of state or corporation to take property. 
 
 Cited in Woodward v. Central Vermont R. Co. 180 Mass. 603, 62 X. E. 1051, 
 holding amendatory act requiring corporation purchaser at foreclosure sale to 
 pay judgments against mortgagor void; Old Colony R. Co. v. Framingham Water 
 Co. 153 Mass. 563, 13 L. R. A. 334, 27 N. E. 662, holding legislature may author- 
 ize taking of land for public use previously appropriated by legislative author- 
 ity to different publi use; Chicago, B. & Q. R. Co. v. Illinois. 200 U. S. 599, 
 50 L. ed. 612, 26 Sup. Ct. Rep. 341, 4 A. & E. Ann. Cas. 1175 (dissenting opin- 
 ion), on taking property for public purposes. 
 
 Cited in footnotes to Re Brooklyn, 26 L. R. A. 270, which upholds act author- 
 izing city to acquire property of water company; Butte, A. & P. R. Co. v. Mon- 
 tana U. R. Co. 31 L. R. A. 298, which holds railroad land not actually used or 
 necessary subject to condemnation by other railroad; Diamond Jo Line Steamers 
 v. Davenport, 54 L. R. A. 859, which authorizes condemnation for public wharf 
 of land used by carrier as landing place; Denver Power & Irrig. Co. v. Colorado 
 
 6 S. R. Co. 60 L. R. A. 383, which denies power of reservoir company to con- 
 demn land devoted to purpose of railroad unless public necessity requires; 
 Cleveland, C. C. & St. L. R. Co. v. Ohio Postal Teleg. Cable Co. 62 L. R. A. 
 941, which holds burden upon telegraph company to show right of way sought 
 in railroad property will not interfere with railroad's use of right of way. 
 Judicial power over eminent domain. 
 
 Cited in notes (88 Am. St. Rep. 935, 940) on existence of publicc use as 
 question for courts; (22 L.R.A. (N.S.) 6, 56, 65, 92) on judicial power over emin- 
 ent domain. 
 
 7 L. R. A. 771, MASON v. POMEROY, 151 Mass. 164, 24 N. E. 202. 
 Second petition for accounting in 154 Mass. 482, 29 N. E. 51. 
 
 Continuance of testator's business. 
 
 Cited in Packard v. Kingman, 109 Mich. 506, 67 N. W. 551, holding it com- 
 petent for testator to provide for continuance of his business and subject all of 
 his property to such purpose; Mills v. Smith, 193 Mass. 18, 6 L.R.A. (N.S.) 
 870, 78 N. E. 765, holding it in the power of testator to provide for a disposi- 
 tion or use of his property after his death, which will prevent for a long 
 time the settlement of his estate. 
 Remedy of creditors a&ainst trustees and estate. 
 
 Cited in Mayo v. Moritz, 151 Mass. 485, 24 N. E. 1083, holding creditor could 
 not have whole of trust property sold and proceeds applied to pay his claim: 
 Odd Fellows Hall Asso. v. McAllister, 153 Mass. 297, 11 L. R. A. 174, 26 N. E. 
 862, holding, even where trustees are entitled to indemnity from trust estate, 
 judgment at law is against them as individuals; Lyman v. National Bank, 181 
 Mass. 438, 63 N. E. 923, holding executor may borrow money and pledge prop- 
 erty of estate to secure it; Packard v. Kingman, 109 Mich. 506, 67 N. W. 551, 
 holding trustee may contract for trust estate as to exclude his personal liabil- 
 ity; O'Malley v. Gerth, 67 N. J. L. 613, 52 Atl. 563, holding trustees may be 
 sued individually for torts, irrespective of their right of indemnity out of trust 
 ostate; Wells-Stone Mercantile Co. v. Grover, 7 N. D. 463, 41 L. R. A. 253. To 
 X. W. 911, holding creditor must generally look to trustee individually for pay- 
 ment for goods sold to him; Connally v. Lyons, 82 Tex. 670, 27 Am. St. Rep. 
 
1413 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 779 
 
 935, 18 S. W. 799, holding trustee personally liable for purchase made on credit 
 of trust estate. 
 Priority of claims. 
 
 Followed in Woddrop v. Weed, 154 Pa. 314, 32 W. N. C. 192, 35 Am. St. Rep. 
 832, 2G Atl. 375, holding upon insolvency of trust to carry on business assets 
 must be distributed pro rata. 
 
 Cited in American Loan & T. Co. v. Northwestern Guaranty Loan Co. 166 
 Mass. 344, 44 N. E. 340, holding mere priority of maturity of a claim against 
 trust fund does not give right to priority of satisfaction; Randolph v. Scruggs, 
 190 U. S. 538, 47 L. ed. 1170, 23 Sup. Ct. Rep. 710, holding that claim for serv- 
 ices rendered voluntary assignee in unsuccessfully resisting adjudication in bank- 
 ruptcy of assignor, on petition filed within four months after assignment, not 
 provable against bankrupt's estate. 
 Creditor's right to proceed against trust estate. 
 
 Cited in Broadway Nat. Bank v. Wood, 165 Mass. 316, 43 N. E. 100, holding 
 creditor of ostensible firm has no prior right to have property applied to pay- 
 ment of his claim over creditors of real firm; W T ells-Stone Mercantile Co. v. 
 Grover, 7 N. D. 463, 41 L. R. A. 253, 75 N. W. 911, and Wells-Stone Mercantile 
 Co. v. Aultman, M. & Co. 9 N. D. 522, 84 N. W. 375, holding right of credit- 
 ors to proceed against trust estate based on trustee's right of reimbursement for 
 expenditures; Wadsworth, H. & Co. v. Arnold, 24 R. I. 35, 51 Atl. 1041, hold- 
 ing where apparent intent of testator was that trustee should use the estate 
 for the purpose of his business, he could bind the estate for purchases made pur- 
 suant to the trust. 
 
 7 L. R. A. 776, FARRELL v. DERBY, 58 Conn. 234, 20 Atl. 460. 
 Municipal powers. 
 
 Cited in Central R. & Electric Co.'s Appeal, 67 Conn. 235, 35 Atl. 32 (dissent- 
 ing opinion ) , as to possession by municipality of all powers necessary to full 
 operation of those specifically granted, or to attainment of declared objects. 
 
 Distinguished in Goodwin v. East Hartford, 70 Conn. 40, 38 Atl. 876, holding 
 towns not liable for expense incurred by statutory board for maintenance and 
 control of highway in employing agents to secure legislation terminating its 
 existence and transferring burden of maintaining highway to state. 
 State control of municipal affairs. 
 
 Cited in Sargent v. Clark, 83 Vt. 527, 77 Atl. 337, to the point that town has 
 right to incur expense to oppose division of its territory by legislature. 
 
 Distinguished in State ex rel. Bulkeley v. Williams, 68 Conn. 161, 48 L. R. 
 A. 497, 35 Atl. 421 (dissenting opinion), majority holding statute imposing ex- 
 pense of maintenance and construction of highway upon benefited towns. 
 
 7 L. R. A. 779, WILLIAM ROGERS MFG. CO. v. ROGERS, 58 Conn. 356, 18 
 
 Am. St. Rep. 2/8, 20 Atl. 467. 
 Specific enforcement of contract. 
 
 Cited in Roquemore v. Mitchell Bros. 167 Ala. 479, 140 Am. St. Rep. 52, 52 
 So. 423, holding that courts of equity will not enforce specific performance of 
 contract for personal services which are material or mechanical and not peculiar 
 or individual. 
 
 Cited in notes (8 L. R. A. 626) on right to specific performance where there is 
 adequate remedy at law; (11 L. R. A. 116) on agreements not specifically en- 
 forceable; (6 L.R.A.(N.S.) 1123, 1126, 1140, 1141, 1144) on enforcement of con- 
 tract of service by equity; (68 Am. St. Rep. 761) on specific performance of con- 
 
7 L.R.A. 779] L. E. A. CASES AS AUTHORITIES. 1414 
 
 tract where decree cannot be enforced; (140 Am. St. Rep. 62) on specific perform- 
 ance of contract for personal services; (6 Eng. Rul. Cas. 665) on refusal to en- 
 force specific performance of contract, the execution of which the court cannot 
 superintend. 
 Rule as to negative enforcement of contracts for personal services. 
 
 Cited in Schwier v. Zitike, 136 Ind. 213, 36 N. E. 30, holding school board 
 cannot be enjoined from violating contract for personal services as teacher; 
 E. Jaccard Jewelry Co. v. O'Brien, 70 Mo. App. 435, refusing to enjoin sales- 
 man from entering employment of another firm in violation of contract; Jones 
 v. Williams, 139 Mo. 92, 37 L. R. A. 707, 61 Am. St. Rep. 436, 40 S. W. 353 
 (dissenting opinion), majority holding corporation enjoinable from breach of 
 contract giving plaintiff, in considerations of purchase of stock, management 
 and editorship of newspaper; Chain Belt Co. v. Von Spreckelsen, 117 Wis. 123 r 
 94 N. W. 78, holding injunction in action to restrain expert mechanic from en- 
 tering employment of another than plaintiff, properly dissolved; Philadelphia 
 Base-Ball Club v. Lajoie, 10 Pa. Dist. R. 314, holding court should refuse in- 
 junction restraining a base-ball player from rendering services to another club 
 contrary to terms of contract of employment though he was an expert player; 
 Columbia College v. Tunberg, 64 Wash. 21, 116 Pac. 280, holding that breach of 
 contract to teach music in school will not be enjoined where services of another 
 can be procured without materially impairing efficiency of school ; Eureka 
 Laundry Co. v. Long, 146 Wis. 210, 35 L.R.A.(N.S.) 123, 131 N. W. 412, to 
 the point that injunction does not lie to enforce contract for personal services, 
 unless they belong to class called unique, peculiar, individual or extraordinary. 
 
 Cited in notes (11 L. R. A. 550) on special services for professional labor; 
 (12 L. R. A. 497) on assignability of contracts for personal services requiring- 
 special skill and knowledge; (20 L. R. A. 167) on power of equity to grant man- 
 datory injunctions; (16 L.R.A. (N.S.) 391) on injunction against breach by em- 
 ployee of agreement not to compete; (90 Am. St. Rep. 648) on injunction against 
 breach of contract for services. 
 Engaging in like business. 
 
 Cited in Knoedler v. Glaenzer, 20 L. R. A. 735, 5 C. C. A. 308, 14 U. S. App. 
 336, 55 Fed. 898, holding, in absence of contract or fraud, vendor of business and 
 good will not debarred from establishing like business in same place; H. W. 
 Gossard Co. v. Crosby, 132 Iowa, 177, 6 L.R.A. (N.S.) 1146, 109 N. W. 483 r 
 holding an employee on leaving employers service has perfect right to make 
 use for his own benefit of all knowledge and experience acquired, excepting onlv 
 trade secrets. 
 
 7 L. R. A. 782, KE-TUC-E-MUN-GUAH v. McCLURE, 122 Ind. 541, 23 X. E. 
 
 1080. 
 Presumption on appeal that amendment was made. 
 
 Cited in Taylor v. Culvert, 138 Ind. 84, 37 X. E. 531. holding amendment pre- 
 sumed for purpose of curing immaterial variance; Helms v. Appleton, 43 Ind. 
 App. 489, 85 N. E. 733, holding complaint with reference to any damages 
 proved within issues could have been amended even after finding or verdict t 
 correspond to the proof and on appeal the court will treat it as amended. 
 
 Distinguished in Lake Erie & W. R. Co. v. Juday, 19 Ind. App. 443. 4'. X. K. 
 843, holding action not removable to Federal court where damages demanded are 
 less than $2,000, though complaint alleges greater. 
 Jurisdiction over Indians. 
 
 Cited in Stacy v. La Belle, 99 Wis. 524, 41 L. R. A. 422, 67 Am. St. Rep. 879 r 
 
1415 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 784 
 
 75 X. W. 60, holding action ex coniractu lies in state court against Indian in 
 absence of statute or treaty to contrary. 
 What constitutes promissory note. 
 
 Cited in note (21 Am. St. Rep. 436) on what constitutes a promissory note. 
 
 7 L. R. A. 784, LOWMAX v. SHEETS, 124 Ind. 416, 24 N. E. 351. 
 Statute of frauds Contract not to be performed within year. 
 
 Cited in Langan v. Iverson, 78 Minn. 302, 80 X. W. 1051, holding parol agree- 
 ment upon conveyance of land to pay mortgage not due within year not within 
 statute. 
 
 Cited in footnotes to Lewis v. Tapman, 47 L. R. A. 385, which holds contract 
 to marry ''within three years" not within statute of frauds; Weatherford, M. W. 
 & X. W. R. Co. v. Wood, 28 L. R. A. 526, which holds contract to give pass to 
 man and his family annually for ten years not within statute of frauds; Brown 
 v. Throop, 13 L. R. A. 646, which holds parol agreement in March for lease of ice 
 house for one year from April to be left full on surrendering possession valid; 
 Hand v. Osgood, 30 L. R. A. 379, which holds oral lease for year with privilege of 
 three at annual rent, void. 
 
 Cited in notes (9 L. R. A. 129) on promises not to be performed within a year; 
 (10 L.R.A. 727) on lease within statute of frauds; (138 Am. St. Rep. 610) 
 on agreements not to be performed within a year. 
 Effect of part performance. 
 
 Cited in Murphy v. De Haan, 116 Iowa, 63, 89 N. W. 100, holding oral contract 
 for labor, to the extent of performance, taken out of statute; Riley v. Haworth, 
 30 Ind. App. 381, 64 X. E. 928, holding oral contract for conveyance of land not 
 taken out of statute by part payment of purchase price. 
 Contracts voidable only. 
 
 Cited in Cochran v. Ward, 5 Ind. App. 93, 51 Am. St. Rep. 229, 29 N. E. 795 r 
 holding contracts within statute of frauds not void, but power of enforcement 
 merely withheld and recovery of damages for nonperformance prevented. 
 
 Distinguished in Pierce v. Clarke, 71 Minn. 121, 73 N. W. 522, overruling- 
 Hagelin v. Wacks, 61 Minn. 216, 63 X. W. 624, holding oral contracts relating 
 to land absolutely void. 
 Knforceability of contracts -void in part. 
 
 Cited in Gibson County v. Cincinnati Steam Heating Co. 128 Ind. 248, 12 L. R. 
 A. 505, 27 X. E. 612, holding valid part of contract severable from void part en- 
 forceable. 
 Partner's riuht to dispose of firm property. 
 
 Cited in Huey v. Fish, 15 Tex. Civ. App. 462, 40 S. W. 29, holding member of 
 nontrading partnership cannot mortgage firm assets without copartner's consent; 
 Callahan v. Heinz, 20 Ind. App. 365, 49 X. E. 1073, holding one partner cannot,, 
 without consent of others, assign for creditors property used in firm business. 
 Declarations of possessor as to title. 
 
 Cited in Murphy v. Dafoe, 18 S. D. 47, 99 X. W. 86, holding declarations of a 
 person in possession of realty that he was acting as agent admissible. 
 
 Distinguished in Robbins v. Spencer, 140 Ind. 497, 38 X. E. 522, holding dec- 
 larations of vendor retaining life estate, made after executing deed, inadmissible 
 against vendee. 
 Cotenant's liability for conversion. 
 
 Cited in Robinson v. Dickey, 143 Ind. 208, 52 Am. St. Rep. 417, 42 X. E. 679, 
 hojding cotenant's exclusive possession of personalty not conversion. 
 
7 LJUL 188] L. R, A. CASES AS AUTHORITIES. 1416 
 
 7 L_ R- A. 788, VALEXTIXE v. WY8OR, 123 Ind. 47, 23 N. E. 1076. 
 
 lmterc*to o,f heirs a ad devisee* in share of deceased part- 
 
 Cited in BoUenbaeher T. First Nat. Bank, 8 Ind. App. 18, 35 X. E. 403, holding 
 right* of heirs and legatees of deceased partner attach only to surplus of latter's 
 interest after partnership debts are paid. 
 Rijcat of aMFTrivor to ^oatrol f ftna proper t> . 
 
 Cited in Mclntosh T. Zaring. 130 Ind. 312, 49 N. E. 164, holding upon death 
 of partner right to collection of debts and assets is Tested exclusively in sur- 
 vivors; Rand T. Wright, 141 Ind. 234, 39 X. E. 447, holding on death or retire- 
 ment of partner, survivors succeed to full right of disposing of partnership prop- 
 erty, and closing up of business: Bollenbacher v. First Nat. Bank, 8 Ind. App. 
 16, 35 X. E. 403, holding on death of partner law constitutes survivors trustees 
 to wind up concern for benefit of all persons interested; Re Silkman, 121 App. 
 Div. 208, 105 X. Y. Supp. 872, holding that a surviving, partner may buy 
 partnership interest from executor; Xewman v. Gates, 165 Ind. 174. 72 N. K. 
 638. 6 A. ft E. Ann. Cas. 649, holding that surviving partner baa right to col- 
 lect debts; Hartnett T. Stilwell, 121 Ga. 389, 49 S. E. 276, holding surviving 
 partner entitled to possession of firm property. 
 
 Cited in footnote to Philbrook v. Xewman, 34 L. R. A. 265, which holds good 
 will passes to surviving partners on purchase of interest of deceased. 
 
 Cited in note (24 Am. St. Rep. 186) on right of survivor to control firm 
 property on death of one partner. 
 
 Distinguished in Shrum v. Simpson, 155 Ind. 162, 49 L. R. A. 793, 57 X. E. 70S, 
 holding agreement between owner and another for cultivation of land on shares 
 not partnership giving survivor right of possession of property until business 
 settled. 
 Satt*factioa of ImiivMval liability of partner*. 
 
 Cited in footnotes to Kincaid v. National Wall Paper Co. 54 L. R. A. 412, 
 which sustains right of partners to appropriate, with other partners' consent, in- 
 terest in firm to pay individual, in preference to firm, debts; Hundley v. Farri>. 12 
 of deceased partner's estate; JZe Baldwin, 58 L. R. A. 122. which holds individual 
 liability of member of banking firm, signing name to certificate of deposit, en- 
 forceable against estate in preference to claims against firm. 
 Parraaae fcjr trwtec* mt owm sale-. 
 
 Cited in Comegys v. Emerick. 134 Ind. 153, 39 Am. St. Rep. 245, 33 X. E. 809. 
 holding purchase of real estate by executor at his own sale, void; Tennant v. 
 Dnnlop, 97 Va. 242, 33 S. E. 620, holding surviving partner is trustee as to 
 disposition of firm property, and purchase of deceased partner's interest regarded 
 with suspicion, and jealously scrutinized; Holladay v. Land & River Improv. Co. 
 6 C. C. A. 571, 18 U. S. App. 308, 57 Fed. 785, holding settlement between executor 
 and surviving partner, involving transfer of interest of deceased in firm real 
 estate to survivor, conclusive in absence of fraud or mistake. 
 
 Cited in Matthews v. Wilson, 31 Ind. App. 97, 67 X. E. 280, holding lien 
 against real estate to secure payment of allowance for support of child barred 
 after ten years; Ferguson v. Boyd, 169 Ind. 549, 81 X. E. 71, holding that court 
 of equity looks with disfavor upon state and speculative claims. 
 
 Cited in note (10 L. R. A. 126) on doctrine of laches. 
 
 7 L. R. A. 797, XEWSOX v. GALVESTOX, 76 Tex. 559, 13 S. W. 368. 
 Power* of ataaieipal eorporatioaa rgapeetlag markets. 
 
 Cited in G mm bach v. Lelande, 154 CaL 684, 98 Pac. 1059, holding that a 
 
1417 L. R. A. CASES AS AUTHORITIES. [7 J^RJL 799 
 
 municipality has power to exclude the conducting of a certain business from 
 a certain district. 
 
 Cited in footnote to Re Snyder, 68 LJR.A. 708, which sustains right of 
 farmer to sell products of his farm in city without license. 
 
 Cited in notes (24 L. R. A. 585) on prohibition of sales except at markets; <24 
 L. R. A. 584) on market regulations and ordinances affecting contracts; (9 L. R. 
 A. 69) on regulation of markets and market houses; (23 Am. St. Rep. 81, 
 582) on power of municipality to establish and regulate markets. 
 Sttte* regrnlatlagr Ml* of article* of food. 
 
 Cited in footnotes to State v. Layton, 62 L.RJL 164, which holds constitu- 
 tional, act prohibiting manufacturer of baking powder containing alum; Ar- 
 bnckle v. Blackburn, 65 LJELA. 864, which upholds statute prohibiting the 
 coloring, coating, or polishing of article intended for food whereby damage or 
 inferiority is concealed. 
 Revocation of HCCMC. 
 
 Cited in footnote to Wallace v. Reno, 63 L.R.A. 337, which upholds statute 
 authorizing revocation of license without notice to licensee. 
 
 Cited in note (9 L.R.A.(X.S.) 733) on expenditure in reliance upon license 
 from public, as preventing revocation in interest of public health. 
 
 7 L. R- A. 799, WHITE v. WHITE, 82 CaL 427, 23 Pac. 276. 
 Waca mtmrrlff rclatloa cxfxte. 
 
 Cited in Eldred v. Eldred, 97 Va. 610, 34 S. E. 477, holding presumption of 
 marriage, raised by declaration that it was in certain city, rebutted where license 
 required not issued and banns not published; Williams v. Herriek, 21 R. L 403, 
 79 Am. St. Rep. 809, 43 Atl. 1036, holding ceremonial marriage to enable woman 
 and children to receive property strong evidence against existence of prior mar- 
 riage; Barker v. Valentine, 125 Mich. 343, 51 L. R. A. 790, 34 Am. St. Rep. 578, 
 84 X. \\. 297, holding marriage presumed between man and woman who con- 
 tinued to cohabit under circumstances of general repute of marriage after death 
 of first wife; Quackenbnsh v. Swortfiguer, 136 CaL 152, 68' Pac, 590, holding the 
 repute of marriage divided, and sustains finding of no marriage; Re Richards, 
 133 Cal. 527, 65 Pac. 1034, holding evidence by woman of solemnization of mar- 
 riage with intestate, followed by cohabitation and residence, admissible to deter- 
 mine which of two widows entitled to estate; People v. Hart man, 130 Cal. 490, 
 62 Pac. 823, holding evidence of general repute of marriage admissible in trial 
 for bigamy; Harron v. Harron, 128 Cal. 310, 60 Pac. 932, holding divorce cannot 
 be granted from marriage never solemnized, the existence of which was evi- 
 denced only by illicit relations, and unsupported statement of woman; Sununer- 
 ville v. Snmmerville, 31 Wash. 416. 72 Pac. 84, holding marriage established by 
 proof of cohabitation as man and wife and testimony as to service supposed by 
 wife to have been performed by clergyman; Hinckley v. Ayres, 105 CaL 360. 38 
 Pac. 735, holding marriage not proved, where parties living together were not 
 shown to have treated the realtion as that of husband and wife; Ollschlager v. 
 Widmer, 55 Or. 151, 105 Pac. 717, holding that burden of proof is on person 
 questioning marriage, where proof of marriage is made, such proof overcoming 
 any presumption arising out of meretricious relations; Weidenhoft v. Primm, 
 16 Wyo. 360, 94 Pac. 453, holding that to establish marriage by reputation 
 in the community where the parties reside the reputation must be general and 
 uniform: Henry v. Taylor, 16 S. D. 433, 93 X. W. 641, holding where relations 
 are illicit in their origin that unless a mutual contract of marriage is shown 
 the presumption is that, the same relations continue: People v. Le Doux, 155 
 
7 L.R.A. 799] L. R. A. CASES AS AUTHORITIES. 1418 
 
 Cal. 548, 102 Pac. 517, holding in a criminal case where marriage is in issue 
 that a marriage in fact must be shown; Re Blythe, 4 C. of Prob. Dec. Anno. 
 298, on necessity of repute of marriage as an element in proof thereof. 
 
 Cited in footnotes to Re McLaughlin, 16 L. R. A. 699, which holds common-law 
 marriage invalid under statute; Nims v. Thompson, 17 L. R. A. 847, which holds 
 finding of marriage justified by evidence; Re Hurlburt, 35 L. R. A. 794, which 
 holds general reputation in family as to death of member, not derived from de- 
 ceased members of family, inadmissible. 
 
 Cited in notes (14 L. R. A. 364) on cohabitation as proof of marriage where 
 it begins unlawfully; (41 L. R. A. 449) on entries in family Bible or other relig- 
 ious book as evidence; (124 Am. St. Rep. 119) on common law marriage. 
 Immaterial error. 
 
 Cited in Stewart v. Douglass, 9 Cal. App. 715, 100 Pac. 711, holding the ad- 
 mission of irrelevant testimony not ground for reversal where case is tried 
 before court unless it appears that court relied on such testimony in making 
 its decision. 
 When reversal allowed because of leading: quest ion. 
 
 Cited in Casey v. Leggett, 125 Cal. 673, 58 Pac. 264; Kyle v. Craig, 125 Cal. 
 113, 57 Pac. 791, holding case will not be reversed because of allowance of lead- 
 ing question, unless discretion abused; Josephson v. Sigfusson, 13 N. D. 318, 100 
 N. W. 703, holding same. 
 Failure to find on issue. 
 
 Cited in Smith v. Smith, 119 Cal. 190, 48 Pac. 730, holding omission to find 
 upon facts alleged in answer immaterial, where evidence not sufficient to support 
 finding of facts as alleged. 
 
 7 L. R. A. 809, ASHTON v. DASHAWAY ASSO. 84 Cal. 61, 22 Pac. 660, 23 
 
 Pac. 1091. 
 
 Demand on directors as precedent to suit by stockholder in behalf of 
 corporation. 
 
 Cited in Albers v. Merchants' Exchange, 45 Mo. App. 221 ; Forrester v. Boston 
 & M. Consol. Copper & S. Min. Co. 21 Mont. 549, 55 Pac. 229 ; Hannerty v. Stand- 
 ard Theater Co. 109 Mo. 306, 19 S. W. 82, holding it not necessary to show a 
 demand by stockholder that corporation sue directors for property lost by mis- 
 conduct of directors where same directors are still in office; Smith v. Dorn, 96 
 Cal. 79, 30 Pac. 1024, holding a demand on directors of a corporation to bring 
 action unnecessary where answer shows that it would have been useless; White- 
 head v. Sweet, 126 Cal. 73, 58 Pac. 376, holding in an action to set aside an 
 election of directors that demand on directors to bring action is excused where 
 a demand would have been of no avail. 
 
 Cited in note (24 Am. St. Rep. 644) on demand as condition precedent to suit 
 "by stockholders against directors for mismanagement. 
 It iuli t of stockholder to act in behnlf of corporation. 
 
 'Cited in Duquesne Gold Min. Co. v. Glaser, 46 Colo. 191, 103 Pac. 299, holding 
 where officers of a corporation attempt to wreck corporation that a stockholder 
 anight redeem from execution sale and then recover amount paid by an action 
 Against corporation. 
 
 Cited in note (57 Am. St. Rep. 71, 72) on right of stockholder to prevent 
 -withdrawal of corporate assets. 
 Directors voting compensation to themselves. 
 
 Cited in McConnell v. Combination Min. & Mill. Co. 30 Mont. 256, 104 Am. 
 St. Rep. 703, 76 Pac. 194, holding no implied authority to exist where directors 
 
1419 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 819 
 
 might vote compensation to one of their number; Pfeiffer v. Lansberg Brake Co. 
 44 Mo. App. 63, holding that directors cannot vote themselves compensation after 
 services have been performed. 
 Liability of directors for misconduct. 
 
 Cited in Tobin Canning Co. v. Fraser, 81 Tex. 413, 17 S. W. 25, holding a di- 
 rector of an insolvent corporation having brought in the assets of corporation 
 for less than their value is liable for excess of value of property over what it 
 cost him. 
 
 7 L. R. A. 812, BENTON v. SHAFER, 47 Ohio St. 117, 24 N. E. 197. 
 L,is pendens; notice of pendency of action. 
 
 Cited in Jones v. Robb, 35 Tex. Civ. App. 270, 80 S. W. 395, holding that a 
 suit in order to effect lands purchased during its pendency must be brought in 
 the county in which the land is situate. 
 
 Cited in footnote to Mach v. Blanchard, 58 L. R. A. 811, which holds mort- 
 gagee of land restored to mortgagor by default judgment against his grantee, 
 takes subject to having title defeated by opening of judgment. 
 
 Cited in notes (8 L.R.A. 553) on effect of notice of pendency of suit; (24 Am. 
 St. Rep. 373; 56 Am. St. Rep. 856, 859, 860) on law of lis pendens. 
 
 7 L. R. A. 817, MOLETOR v. SINNEX, 76 Wis. 308, 20 Am. St. Rep. 71, 44 N. 
 
 W. 1099. 
 Fugitive from justice. 
 
 Cited in footnote to Re Little, 57 L. R. A. 295, which holds prisoner trans- 
 ferred to other state for trial in Federal court may be turned over to state 
 authorities. 
 
 Cited in notes (14 L. R. A. 129) on extradition from sister state, right to try 
 prisoner for other crime than that for which he was surrendered; (25 L. R. A. 
 722, 723, 724, 727, 728, 731) on privilege of nonresident from suit. 
 Privilege from arrest or process. 
 
 Cited in Martin v. Bacon, 76 Ark. 161, 113 Am. St. Rep. 81, 88 S. W. 863, 6 
 A. & E. Ann. Cas. 336, holding service on a nonresident while attending court 
 in order to avoid a forfeiture of his bail bond not sufficient; Saveland v Connors. 
 121 Wis. 30, 98 N. W. 933, sustaining a dismissal of an action where defendant 
 was fraudulently decoyed into state for purpose of obtaining jurisdiction. 
 
 Cited in footnote to Murray v. Wilcox, 64 L. K. A. 534. which holds defendant 
 in criminal case attending trial exempt from service of civil process. 
 
 Cited in note (7G Ani. St. Rep. 541) on exemption from service of civil process. 
 Extradited person. 
 
 Cited in State ex rel. Hattabaugh v. Boynton, 140 Wis. 91, 121 N. W. 8*7. 17 
 A. & E. Ann. Cas. 618, holding extradited party not subject to arrest on civil 
 process. 
 
 Disapproved in Rutledge v. Krauss, 73 X. J. L. 400, 63 Atl. 988, holding that 
 an extradicted person might be tried on another and distinct offense. 
 
 7 L. R. A. 819, WEBER v. KANSAS CITY CABLE R. CO. 100 Mo. 194, 18 Am. 
 
 St. Rep. 541, 12 S. W. 804, 13 S. W. 587. 
 Violation of ordinance. 
 
 Cited in Wller v. Chicago. M. & St. P. R. Co. 120 Mo. 654, 23 S. W. 1061, 
 liolding driving horse at speed prohibited by ordinance negligence per se; Blvstni- 
 Spencer v. United R. Co. 152 Mo. App. 135, 132 S. W. 1175. held that running 
 street car in excess of rate of speed fixed by ordinance is negligence per se. 
 
7 L.R.A. 819] L. R. A. CASES AS AUTHORITIES. 1420 
 
 Cited in notes (5 L.R.A. (N.S.) 250, 251) on violation of police ordinance as 
 ground for private action; (8 L.R.A. (N.S.) 1094) on operating car in excess of 
 speed prescribed by ordinance as negligence or evidence thereof; (104 Am. St. 
 Rep. 656, 657) on enforcement of municipal regulations of street railways for 
 protection of public by making violation a predicate for negligence. 
 Negligence of defendant. 
 
 Cited in Van Natta v. People's Street R. Electric Light & P. Co. 133 Mo. 22, 
 34 S. W. 505, reversing because of instruction imposing upon carrier higher de- 
 gree of care than required by law. 
 Recovery defeated by contributory negligence. 
 
 Cited in Corcoran v. St. Louis, I. M. & S. R. Co. 105 Mo. 406, 24 Am. St. Rep. 
 394, 16 S. W. 411, holding act of climbing over stationary cars contributory negli- 
 gence. 
 Direction of verdict. 
 
 Cited in Weaver v. Benton-Bellefontaine R. Co. 60 Mo. App. 208, reversing 
 judgment without remanding, on ground trial court should have directed verdict 
 for defendant; Moore v. Kansas City, St. S. & M. R. Co. 146 Mo. 580, 48 S. W. 
 487, holding voluntary choice of dangerous course when safer one was open, con- 
 tributory negligence as matter of law. 
 
 Cited in footnote to Hopkins v. Nashville, C. & St. L. R. Co. 32 L. R. A. 354, 
 which sustains practice of demurring to evidence. 
 When contributory negligence a. question for jury. 
 
 Cited in Kreis v. Missouri P. R. Co. 131 Mo. 545, 30 S. W. 310, holding on con- 
 flicting evidence contributory negligence question for jury; Church v. Chicago & 
 A. R. Co. 119 Mo. 214, 23 S. W. 1056, holding questions for jury where facts 
 though undisputed would lead sensible men to different conclusions; Eikenberry v. 
 St. Louis Transit Co. 103 Mo. App. 451, 80 S. W. 360; Dawson v. St. Louis Transit 
 Co. 102 Mo. App. 283, 76 S. W. 689, holding it mixed question of law and fact 
 whether passenger boarding or alighting from slowly moving car guilty of con- 
 tributory negligence; Hornstein v. United Railways Co. 97 Mo. App. 278, 70 S. W. 
 1105, holding it question for jury whether crossing street car tracks without stop- 
 ping to see whether car approaching, contributory negligence; Root v. Des Moines 
 City R. Co. 113 Iowa, 680, 83 N. W. 904, and Fulks v. St. Louis & S. F. R. Co. Ill 
 Mo. 340, 19 S. W. 818, holding that getting upon slowly moving train, especially 
 at platform, is not negligence as matter of law; Hansberger v. Sedalia Electric 
 R. Light & Power Co. 82 Mo. App. 579, holding question whether person was 
 guilty of contributory negligence in getting upon slowly moving car, for jury : 
 Eberly v. Chicago, B. & Q. R. Co. 96 Mo. App. 369, 70 S. W. 381, holding that 
 where inference to be drawn from evidence is uncertain, question of negligence 
 cannot be passed upon by court; McDonald v. Kansas City & I. Rapid Transit R. 
 Co. 127 Mo. 43, 29 S. W. 848, holding passenger not guilty of contributory neg- 
 ligence per se in getting off slowly moving train, under conductor's direction, 
 without looking to see if a train is approaching. 
 
 Cited in notes (11 L. R. A. 396) on passenger alighting from moving train; 
 (38 L.R.A. 787) on negligence in getting on or off moving train; (33 Am. St. 
 Rep. 28) on contributory negligence as question for jury. 
 Determination of contributory negligence per ><. 
 
 Cited in Citizens' Street R. Co. v. Spahr, 7 Ind. App. 31, 33 N. E. 446, holding 
 whether person is guilty of negligence in boarding street car depends upon fact* 
 of each particular case; Dewald v. Kansas City, Ft. S. & G. R. Co. 44 Kan. 590, 24 
 Pac. 1101, holding person jumping from moving train before reaching station 
 guiltj of contributory negligence as matter of law; Hughes v. Fagin, 46 Mo. App. 
 
1421 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 819 
 
 47 (dissenting opinion), majority holding carpenter not guilty of contributory 
 negligence per se, in leaning part of his body in elevator shaft while elevator in 
 use above him; Spencer v. St. Louis Transit Co. Ill Mo. App. 661, 86 S. W. 593, 
 holding it not negligence as a matter of law to attempt to board a car moving as 
 fast as a man going at a fast walk. 
 Contributory negligence in or about cars. 
 
 Cited in Harris v. Lincoln Traction Co. 78 Neb. 684, 111 N. W. 580, holding 
 mere fact that a car is being run in violation of a speed ordinance does not give 
 one injured by his own carelessness a right of action; Wheeler v. Oregon R. & 
 Nav. Co. 16 Idaho, 394, 102 Pac. 347, holding failure to obey a statutory duty, 
 not to create a liability where plaintiff is guilty of contributory negligence; 
 Hornstein v. United R, Co. 195 Mo. 451, 4 L.R.A. (N.S.) 736, 113 Am. St. 
 Rep. 693, 92 S. W. 884, 6 A. & E. Ann. Cas. 699, holding that a passenger alight- 
 ing from street car should exercise ordinary care to determine whether another 
 car is coming on other track : Brady v. Kansas City, St. L. & C. R. Co. 206 Mo. 
 530, 102 S. W. 978, holding where cars might be uncoupled without going between 
 them that by going between party is guilty of contributory negligence; Foreman 
 v. Norfolk, P. & N. News Co. 106 Va. 774, 56 S. E. 805, holding one stepping off 
 a street car immediately in front of a rapidly approaching car on adjacent track 
 to be guilty of contributory negligence when he could have stepped on another 
 side and also could have seen approaching car had he glanced up; Coel v. Green 
 Bay Traction Co. 147 Wis. 237, 133 N. W. 23, holding that both person alighting 
 from street car where there are double tracks and motorman on approaching car 
 must exercise care commensurate with the danger. 
 Proceeding after overruling: of demurrer to evidence. 
 
 Cited in Storck v. Mesker, 55 Mo. App. 32. holding demurrer to evidence waived 
 by defendant by introduction of evidence; Cain v. Gold Mountain Min. Co. 27 
 Mont. 535, 71 Pac. 1004, holding defendant assumes risk of supplying defects, by 
 offering evidence after refusal of nonsuit; Fuchs v. St. Louis, 167 Mo. 631, 57 L. 
 R. A. 139, 67 S. W. 610, considering whole evidence upon defendant's saving point 
 of court's refusal to find for defendant at close of case; St. Louis & S. F. R. Co. 
 v. Loftis, 25 Okla. 498, 106 Pac. 824, holding that where demurrer to evidence is 
 overruled, but should have been sustained because omission of testimony, if de- 
 fendant supplies omission error in overruling demurrer is cured. 
 Review by appellate court on demurrer to evidence. 
 
 Cited in Brock v. St. Louis Transit Co. 107 Mo. App. 116, 81 S. W. 219 ; Kenne- 
 fick-Hammond Co. v. Norwich Union F. Ins. Soc. 119 Mo. App. 315, 80 S. W. 694; 
 De Maet v. Fidelity Storage Packing & Moving Co. 121 Mo. App. 94, 96 S. W. 
 1045; Kenefick v. Norwich Union F. Ins. Co. 205 Mo. 307, 103 S. W. 957, holding 
 where at the close of the testimony a party demurs to the evidence as a whole 
 the appellate court is required to review all the evidence heard. 
 Street railways. 
 
 Cited in note (8 L. R. A. 539) on electric railways in city streets. 
 Carrier's duty as to safety of passengers. 
 
 Cited in Fillingham v. St. Louis Transit Co. 102 Mo. App. 582, 77 S. W. 314, 
 holding carrier's duty as to safety of passenger requires latter to be put off at 
 reasonably safe place; Nelson v. Metropolitan Street R. Co. 113 Mo. App. 708, 88 
 S. W. 1119, holding it duty of street railway company to hold a car stationary 
 while passenger is alighting; Deskins v. Chicago, R. I. & P. R. Co. 151 Mo. App. 
 436, 132 S. W 45, to the point that degree of care required of carrier while pas- 
 ienger is leaving vehicle is as high as that required while he is in transit. 
 
 Cited in notes (4 L.R.A. (N.S.) 731) on injury to street car passenger who 
 
7 L.R.A. 819] L. R. A. CASES AS AUTHORITIES. 1422 
 
 upon alighting passes around end of car and is struck by car on other track; 
 (20 L.R.A. (X.S.) 1218) on duty and liability of street railway to passenger at- 
 tempting to enter or leave car on wrong side. 
 Proximate cause. 
 
 Cited in Shareman v. St. Louis Transit Co. 103 Mo. App. 529, 78 S. W. 846, 
 holding woman's conduct, in stepping off of moving car, without peril to confuse 
 her, proximate cause of injury. 
 Sufficiency of exception to instructions. 
 
 Cited in McKee v. Jones Dry Goods Co. 152 Mo. App. 243, 132 S. W. 1191, 
 to the point that one exception to the refusal of several instructions is sufficient : 
 Ervin v. St. Louis, I. M. & S. R. Co. 158 Mo. App. 45, 139 S. W. 498, holding 
 that exception to instructions generally is sufficient without pointing out specific 
 instruction challenged. 
 
 7 L. R. A. 822, DOUGLASS v. MERCHANTS' IXS. CO. 118 N. Y. 484, 23 N. E. 
 
 806. 
 Accounting: by corporation officers. 
 
 Cited in footnote to Eaton v. Robinson, 29 L. R. A. 100, which requires officers 
 to account for salaries voted and paid to deprive stockholders of rights. 
 Presumption of continuance of contract of employment. 
 
 Cited in Mason v. Secor, 76 Hun, 179, 27 N. Y. Supp. 570, holding continuation 
 of employee in service of new partnership raises no presumption of continuation 
 of former contract of service; Lichtenhein v. Fisher, 87 Hun, 398, 34 X. Y. Supp. 
 304, holding that presumption is of continuance of contract where employee hired 
 for annual compensation continues over term; Bennett v. Mahler, 90 App. Div. 
 27, 85 N. Y. Supp. 669, holding that continuance of service beyond term, under old 
 contract of hiring for year, operated as new hiring for year; Selley v. American 
 Lubricator Co. 119 Iowa, 600, 93 N. W. 590, holding salary of official after time of 
 his discharge for good cause by directors, not recoverable; Mendelson v. Bronner, 
 124 App. Div. 398, 108 N. Y. Supp. 807, holding where a servant employed for 
 one year remains in his master's employ after expiration of year the law im- 
 plies a renewal of contract for another year; Bradlee v. Southern Coast Lumber 
 Co. 193 Mass. 382, 79 X. E. 777, holding an agreement to sell on commission 
 is an agency revocable at any time where no time of agency is stated. 
 Corporation by-laws. 
 
 Cited in Fowler v. Great Southern Teleph. & Teleg. Co. 104 La. 755, 29 So. 271, 
 holding power of board of directors in hiring employee and fixing salary in excess 
 of charter and by-laws not binding on corporation. 
 
 Cited in note (25 L. R. A. 48) on effect of corporate by-laws as notice. 
 Duration of contract of hiring specifying no term. 
 
 Cited in note (25 L.R.A. (X.S.) 531) on duration of contract of hiring specify- 
 ing no term, but fixing compensation at a certain amount per day, week, month, 
 or year. 
 Power of directors to remove appointee. 
 
 Cited in note (23 L.R.A. (X.S.) 1294) on power of directors to remove ap- 
 pointee who is one of the class of officers to whom management confided. 
 
 7 L. R. A. 824, BURTOX v. TUITE, 80 Mich. 218, 45 X. W. 88. 
 Examination of public records. 
 
 Cited in Aitcheson v. Huebner, 90 Mich. 645, 51 X. W. 634, holding state tax 
 land book public record subject to inspection by any citizen; Day v. Button, 96 
 Mich. 602, 56 X. W. 3, upholding right to examine records and files in office of 
 
1423 L. R, A. CASES AS AUTHORITIES. [7 L.R.A. 831 
 
 register of deeds to make memoranda therefrom; Burton v. Reynolds, 110 Mich. 
 355, 68 X. YV. 217, holding general public under proper restrictions has right to 
 information in public offices relating to titles. 
 
 Cited in notes (27 L.R.A. 82) on right to inspect public records; (47 L. ed. U. 
 S. 741) on right of access to public records for private abstract purposes. 
 
 7 L. R. A. 826, PECK v. BANK OF AMERICA, 16 R. 1. 710, 19 Atl. 369. 
 Xotiee of \\ lui t irnqniry tvonld disclose. 
 
 Cited in Maas v. German Sav. Bank, 36 Misc. 157, 72 N. Y. Supp. 1068, holding 
 bank chargeable with knowledge that domestic administrator had been appointed 
 Avhen foreign administrator applied for deposit of intestate; Spellissy v. Cook & 
 B. Co. 58 App. Div. 285, 68 X. Y. Supp. 995, holding transfer made by one in his 
 own name as attorney for another is notice that he is not owner; Hughes v. 
 Drovers' & M. Xat. Bank, 86 Md. 424, 38 Atl. 936, holding corporation not bound 
 to examine whether transferrer with power to transfer is attempting fraud; Peck 
 v. Providence Gas Co. 17 R. I. 279, 15 L. R. A. 647, 21 Atl. 543, holding fact that 
 transfers of stock made through bank is not notice to corporation that executrix 
 under will had pledged, and not sold, them; Strain v. Palmer, 86 C. C. A. 618, 
 159 Fed. 632, holding knowledge of pendency of an action sufficient, to put one 
 -on inquiry as to relief demanded. 
 
 Cited in footnote to Wooten v. Wilmington & W. R. Co. 56 L. R. A. 615, which 
 holds corporation permitting transfer of stock on books by executor, bound to see 
 that provisions of will carried out. 
 
 Cited in notes (15 L.R.A. 645) on duty of corporation as to transfer of stock 
 lield in trust; (1 L.R.A. <X.S.) 190) on use of word "trustee" as affecting nego* 
 tiability or notice of rights of beneficiaries of negotiable paper. 
 "When statute of limitations leiiis to rnn. 
 
 Cited in Reynolds v. Hennessy, 17 R. I. 178, 23 Atl. 639, holding statute of lim- 
 itations does not begin to run while cause of action is fraudulently concealed from 
 him. 
 
 Cited in footnotes to Sanborn v. Gale, 26 L. R. A. 864, which holds running of 
 limitation against action for alienation of wife's affections not prevented by agree- 
 ment of parties to adultery known to husband to deny same: Smith v. Blachley, 
 53 L. R. A. 849, which holds running of limitation against action to recover back 
 money not prevented by fraud, unless investigation prevented by affirmative ef- 
 forts; Mereness v. First Xat. Bank, 51 L. R. A. 410, which holds running of 
 limitations on demand certificate of deposit, not interrupted by bank's misrepre- 
 sentations in denial of liability; Pietsch v. Milbrath. 68 L.R.A. 945, which holds 
 that the fraudulent concealment of a cause of action at law will not prevent 
 running of limitations where the statute expressly states that it shall not run 
 under such circumstances in equity cases. 
 
 Cited in notes (8 L.R.A. 687, 688) on statutes of limitation in case of con- 
 cealed fraud; (16 Eng. Rul. Cas. 258) as to when limitations begin to run in 
 case of fraud or concealment. 
 Taking: advantage of own r>nu. 
 
 Cited in Atcliison, T. & S. F. R. Co. v. Atchison Grain Co. 68 Kan. 596, 75 
 Pac. 1051, 1 A. & E. Ann. Cas. 639 (dissenting opinion), on the inability of one 
 to take advantage of his own wrong. 
 
 7 L. R. A. 831, JONES v. GLIDEWELL, 53 Ark. 161, 13 S. W. 723. 
 Conelnsiveness of finding: npon appellate conrt. 
 
 Cited in Freeman v. Lazarus. 61 Ark. 257. 32 S. W. 680. holding finding of 
 fraud by circuit court, supported by evidence, must stand; Dunnington v. Frick 
 
7 L.R.A. 831] L. R. A. CASES AS AUTHORITIES. 1424 
 
 Co. 60 Ark. 258, 30 S. W. 212, and Robson v. Hough. 56 Ark. 624, 20 S. W. 523, 
 holding same presumption on appeal indulged in as to findings as in verdict of 
 jury; Mason v. Gates, 90 Ark. 377, 119 S. W. 246, holding that findings of fact of 
 a trial judge sitting as a jury are conclusive on appeal if based on evidence. 
 Frauds vitiating elections. 
 
 Cited in Freeman v. Lazarus, 61 Ark. 257, 32 S. W. 680, holding excise election 
 in township invalidated by misconduct of election judges; Atty. Gen. v. McQuade, 
 94 Mich. 443, 53 N. W. 944, holding parties, although not participating, cannot 
 profit by election frauds. 
 Secrecy of the ballot. 
 
 Cited in Ex parte Arnold, 128 Mo. 261, 33 L. R. A. 389, 49 Am. St. Rep. 557, 
 30 S. W. 768, holding "election by ballots" means secret ballot; Schuman v. 
 Sanderson, 73 Ark. 190, 83 S. W. 940, holding that returns from an election will 
 not be thrown out because voters were allowed to cast open ballots. 
 
 Distinguished in Re Massey, 45 Fed. 635, holding secrecy of ballot does not pre- 
 vent courts of state from having access to them to enforce criminal law. 
 Contested elections. 
 
 Cited in Williams v. Buchanan, 86 Ark. 267, 110 S. W. 1024, holding where 
 election returns of a precinct are discarded in an election contest the parties are 
 entitled to prove the number of votes in their favor by parol evidence; Rampen- 
 dahl v. Crump, 24 Okla. 891, 105 Pac. 201, holding that decision by trial court 
 rejecting ballots cast in certain precinct, will not be disturbed on appeal where 
 every provision of law governing holding of election was wilfully violated; 
 Nelson v. Sneed, 112 Tenn. 48, 83 S. W. 786, holding that, the rules of pleading 
 and practice applicable to civil cases a^e applicable to election contests. 
 
 Cited in footnote to Gillespie v. Dion, 33 L. R. A. 703, which holds failure to 
 allege election contestant's qualification to maintain proceeding, fatal. 
 
 Cited in notes (12 L.R.A. 705) on notice to contestee in election contest; 
 (90 Am. St. Rep. 89) on irregularities avoiding elections. 
 Control of conrt over examination of witnesses. 
 
 Cited in Hughes v. State, 70 Ark. 423, 68 S. W. 676, holding that court abused 
 discretion in stopping cross-examination upon material point in prosecution for 
 rape: Campbell v. Campbell, 30 R. I. 67, 73 Atl. 354. holding that a judge may 
 in the exercise of a reasonable discretion limit the number of witnesses to a 
 certain point. 
 
 7 L. R. A. 836, McCULLOUGH v. ANDERSON, 90 Ky. 126, 13 S. W. 353. 
 Estates with power of appointment or to dispose of property. 
 
 Cited in Coats v. Louisville & N. R. Co. 92 Ky. 274, 17 S. W. 564, holding that 
 devise to wife with absolute power of disposition, with remainder over of unex- 
 pended remainder, creates life estate ; Dudley v. Weinhart, 93 Ky. 404, 20 S. W. 
 308, upholding power of appointment to change or cancel any gift or devise in 
 will; Payne v. Johnson, 95 Ky. 184, 24 S. \V. 238, holding intention to execute 
 power of appointment must be clear; Mulvane v. Rude, 146 Ind. 483, 45 N. E. 659, 
 holding donee of life estate with power of disposition does not take fee; McCal- 
 lister v. Bethel, 97 Ky. 6, 29 S. W. 745, holding devise to A. in trust for B., and 
 at B's. death to his children, if none, to any person to whom B. may devise, passes 
 fee subject to be defeated; Dickey v. Barnstable, 122 Iowa, 577, 98 N. W. 368, 
 holding that life estate in property may be granted to one person with remain- 
 der to third person, and power given life tenant to defeat remainder by disposi- 
 tion of property; Re Weien, 139 Iowa, 669, 18 L.R.A. (N.S.) 473, 116 N. W. 791 
 (dissenting opinion) on title of one given an absolute power of disposition by 
 
1425 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 843 
 
 will; Columbia Trust Co. v. Christopher, 133 Ky. 343, 117 S. W. 943, holding 
 that an estate might be given subject to a power in another person; Becker v. 
 Roth, 132 Ky. 433, 115 S. W. 761, holding where testator devised to his wife 
 a fee simple estate with a limitation over of such part as remained undisposed 
 of on contingency of wife's subsequent marriage that such limitation is void; 
 Speyer v. McXamara, 144 Ky. 776, 139 S. W. J092, holding that will of husband 
 giving his "entire estate of all kinds to be used and enjoyed by her as she may 
 deem best for her and my children" with power of disposal, vested fee in widow ; 
 Herring v. Williams, 153 N. C. 235, 138 Am. St. Rep. 659, 69 S. E. 140, holding 
 that under devise to wife of property "to have and to hold during life and at 
 her death, said property, or as much thereof as may be in her possession at time 
 of death of wife" to adopted daughter, her heirs and assigns forever, wife took 
 life estate with power of disposal and daughter took undisposed of property in 
 fee. 
 
 Cited in footnotes to Cornwell v. Wulff, 45 L. R. A. 53, which holds absolute 
 power of disposition in instrument conveying land carries full power in land 
 itself; Roth v. Rauschenbusch, 61 L. R. A. 455, which holds fee simple by devise 
 to one absolutely and forever, not cut down by subsequent direction as to dispo- 
 sition of any remainder on devisee's death. 
 
 Cited in notes (9 L. R. A. 168) on devise of life estate to wife; (10 L. R. A. 
 757) on devise to wife for life with power to sell or dispose of estate; (1 L.R.A. 
 (X.S.) 783; 6 L.R.A. (X.S) 1189) on remainder after life estate with absolute 
 power of disposal. 
 Equitable conversion. 
 
 Cited in note (37 Am. St. Rep. 146) on equitable conversion by will. 
 
 7 L. R. A. 840, BAIT v. MALLOX, 151 Mass. 477, 25 N. E. 17. 
 N <>t !< as to title to land. 
 
 Cited in note (8 L. R. A. 211) on constructive notice by possession as to title 
 to land. 
 
 7 L. R. A. 843, CODY v. NEW YORK & X. E. R, CO. 151 Mass. 462, 24 N. E. 402. 
 \i-iiliiiciKM-oi" passenger attempting to leave car. 
 
 Cited in Jones v. Baltimore & O. R. Co. 4 App. D. C. 173, holding negligence of 
 passenger leaving moving train question for jury; Washington & G. R. Co. v. 
 Hickey, 5 App. D. C. 471, holding negligence of passenger jumping from street 
 car to avoid imminent collision, for jury; Gannon v. New York, X. H. & H. R. 
 Co. 173 Mass. 42, 43 L. R. A. 834, footnote p. 833, 52 X. E. 1075, which holds car- 
 rier liable for injury to passenger while impulsively trying to escape from car 
 in which oil lamp caught fire. 
 
 Cited in footnotes to Tuttle v. Atlantic City R. Co. 54 L.R.A. 582, which 
 authorizes recovery for fall while trying to escape from derailed car; Palmer v. 
 Warren Street R. Co. 63 L.R.A. 507, which holds passenger not negligent in 
 jumping from moving car to avoid impending collision. 
 
 Cited in note (8 L. R. A. 84) on causal connection broken by intervening agency. 
 Riding in wrong place. 
 
 Cited in Lane v. Choctaw, O. & G. R. Co. 19 Okla, 338, 91 Pac. 883, holding 
 it not negligence per se, for" a passenger on a mixed train to occupy a seat in 
 a baggage car. 
 In emergency. 
 
 Cited in Tozier v. Haverhill & A. Street R. Co. 187 Mass. 180, 72 N. E. 953, 
 holding that a party can not be deemed negligent merely because he failed to 
 L.R.A. Au. Vol. I. 90. 
 
7 L.R.A. 843] L. R. A. CASES AS AUTHORITIES. 
 
 do that which would have been best in a case of sudden emergency; Steverman 
 v. Boston Elev. R. Co. 205 Mass. 512, 91 X. E. 919, to the point that passenger 
 will be deemed to have taken reasonable precaution if in anticipation of bodily 
 injury she acts on urgency of the moment and is hurt. 
 
 Cited in notes (22 L.R.A.(N.S.) 756) on negligence of passenger in getting off 
 moving train to avoid impending danger; (37 L.R.A. (N.S.) 45) on care required 
 in sudden emergency. 
 
 7 L. R. A. 845, GERMAN NAT. BANK v. COORS, 14 Colo. 202, 23 Pac. 328. 
 Bonn fide purchaser of commercial paper. 
 
 Cited in Mater v. American Nat. Bank, 8 Colo. App. 330, 46 Pac. 221, holding 
 innocent holder for value may recover on note, although conditions as to exten- 
 sion of time at foot, were wrongfully detached by another; Tourtelotte v. Brown, 
 1 Colo. App. 417, 29 Pac. 130, holding notice of defenses that would defeat com- 
 mercial paper in the hands of the holder must be affirmatively established; 
 Tourtelotte v. Brown, 1 Colo. App. 417, 29 Pac. 130, holding a record of pro- 
 ceedings in respect to a note which was abandoned before final hearing not to ef- 
 fect rights of a subsequent bona fide endorsee; Mater v. American Nat. Bank. 8 
 Colo. App. 330, 46 Pac. 221, holding memorandum on a note not incorporated so* 
 as to become part of note not binding on an innocent holder where memorandum 
 had been removed; Wedge Mines Co. v. Denver Nat. Bank, 19 Colo. App. 189, 7 
 Pac. 873, holding that a bank, on which a check is drawn and which is endorsed 
 in blank, on taking up check in clearing house is presumed to be acting in good- 
 faith. 
 
 Cited in note (4 Eng. Rul. Cas. 363) on bona fide purchaser of note or bill 
 with restricted indorsement. 
 Parol evidence of Indorsement for collection. 
 
 Cited in note (17 L.R.A.(N.S-) 840) on right to show by parol that indorsement 
 unrestricted in form was for collection only. 
 
 7 L. R. A. 847, PORTER v. PIERCE, 120 N. Y. 217, 24 N. E. 281. 
 Sunday, In computing- time. 
 
 Cited in Miner v. Tilley, 54 Mo. App. 629, holding, in computing time in which 
 act may be done, Sunday not considered if last day; Bowles v. Brauer, 89 Va. 
 468, 16 S. E. 356, holding in computing statutory time Sunday is included unless 
 last day, when act may generally be done on succeeding day; Craig v. Butler, S3- 
 Hun, 289, 31 N. Y. Supp. 963, holding payments may fall due on Sunday, but. 
 rule of dies non extends time of payment; Ryer v. Prudential Ins. Co. 185 N. Y. 
 6, 77 N. E. 727, holding where statute requires that a certain thing be done 
 within a certain time it must be so done though last day is Sunday: Kuhne v. 
 Ahlers, 45 Misc. 455, 92 N. Y. Supp. 41, holding in respect to statute of limita- 
 tions of actions the last, though Sunday is counted. 
 
 Cited in notes (14 L. R. A. 122) on extension of time for redemption when last: 
 day falls on Sunday; (49 L.R.A. 235) on computation of time for redemption; 
 (78 Am. St. Rep. 377) on exclusion of Sunday in computation of time. 
 
 Distinguished in Ryer v. Prudential Ins. Co. 110 App. Div. 898, 95 N. Y. Supp. 
 1158, holding that Sunday is, counted in counting a period of months. 
 Violation of Sunday law. 
 
 Cited in footnote to Sullivan v. Maine C. R. Co. 8 L. R. A. 427, which holds- 
 riding on Sunday for exercise not violation of statute. 
 
1427 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 852 
 
 7 L. R. A. 849, DEPOSIT BANK v. FAYETTE NAT. BANK, 90 Ky. 10, 13 S. 
 
 W. 339. 
 Recovering sum paid on forged check. 
 
 Cited in Xeal v. Coburn, 92 Me. 148, 69 Am. St. Rep. 495, 42 Atl. 348, and 
 First Nat. Bank v. First Nat. Bank, 58 Ohio St. 212, 41 L. R. A. 585, 65 Am. St. 
 Rep. 748, 50 N. E. 723, holding drawee bank cannot recover amount paid bona 
 fide holder on forged check; First Nat. Bank v. Marshalltown State Bank, 107 
 Iowa, 329, 44 L. R. A. 132, 77 N. W. 1045, holding drawee bank which pays 
 forged check to bona fide holder who is without negligence cannot recover; 
 \Yoods v. Colony Bank, 114 Ga. 685, 56 L. R. A. 931, 40 S. E. 720, holding 
 responsibility of drawee bank paying forged check absolute only in favor of 
 holder without fault; Canadian Bank of Commerce v. Bingham, 30 Wash. 490, 
 60 L. R. A. 955, 71 Pac. 43, holding that drawee bank paying forged checks may 
 recover from bank taking them in course of business and negligently pay- 
 ing same. 
 
 Cited in footnotes to Gifford v. Rutland Sav. Bank, 11 L. R. A. 794, which 
 holds savings bank not liable for paying deposit to wrong person presenting 
 passbook; Kummel v. Germania Sav. Bank, 13 L. R. A. 786, which holds vigi- 
 lance to detect forgery due to depositor by savings bank officers; Janin v. Lon- 
 don & S. F. Bank, 14 L. R. A. 320, which holds depositor's delay in returning 
 forged check no defense to bank not injured thereby; Northwestern Nat. Bank v. 
 Bank of Commerce, 15 L. R. A. 102, which holds bank crediting forged draft to 
 payee and forwarding for collection a bona fide holder; Iron City Nat. Bank v.. 
 Ft. Pitt Nat. Bank, 23 L. R. A. 615, which denies right of recovery by payer 
 of forged check. 
 
 Cited in notes (27 L.R.A. 636) on duty of bank to know signature of drawer; 
 (10 L.R.A. (N.S.) 51, 65) on right of drawee to recover money paid on forged 
 check or draft; (94 Am. St. Rep. 648) on liability of one receiving payment of 
 check through forged indorsement. 
 
 Disapproved in First Nat. Bank v. Bank of Wyndmere, 15 N. D. 303. 10 
 L.R.A. (N.S.) 55, 125 Am. St. Rep. 588, 108 N. W. 546, holding that the 
 drawee of a forged check may recover money paid thereon provided the holder 
 was not misled or prejudiced by drawee's failure to detect the forgery. 
 
 7 L. R. A. 852, NATIONAL BUTCHERS & D. BANK v. HUBBELL, 117 N. Y. 
 
 384, 15 Am. St. Rep. 515, 22 N. E. 1031. 
 
 Title to proceeds of paper deposited for collection and effect of Insol- 
 vency generally. 
 
 Cited in Commercial Nat. Bank v. Hamilton Nat. Bank, 42 Fed. 881, holding 
 subagent for collecting liable for amount collected and not remitted to owner or 
 agent, though credit given to agent and by it to owner; Beal v. Somerville, 17 
 L. R. A. 29o. 1 C. C. A. 606, 5 U. S. App. 14, 50 Fed. 651, holding checks depos- 
 ited indorsed for deposit do not become cash of bank until collected, though- 
 immediately credited to depositor; Peoples Bank v. Jefferson County Sav. Bank, 
 106 Ala. 533, 54 Am. St. Rep. 59, 17 So. 728, holding bank receiving draft for 
 collection not authorized to treat proceeds as its own; People's & D. Bank v. 
 Craig, 63 Ohio St. 382, 52 L. R. A. 874, 81 Am. St. Rep. 639, 59 N. E. 102, 
 holding one receiving note for collection cannot forward amount in payment and 
 retain note as his own; Union Nat. Bank v. Citizens' Bank, 153 Ind. 55, 54 N~ 
 E. 97, holding depositing bank not preferred creditor where insolvent collecting- 
 bank collected note and remitted draft on correspondent bank which refused pay- 
 ment; Commercial Nat. Bank v. Armstrong. 148 U. S. 57, 37 L. ed. 367, 13 Sup- 
 
7 L.R.A. 852] L. R. A. CASES AS AUTHORITIES. 1428 
 
 Ct. Rep. 533, holding money collected by subagent on paper deposited with agent 
 for collection does not belong to receiver of agent; Armour Packing Co. v. Davis, 
 118 N. C. 554, 24 S. E. 365, holding tacit agreement that amount of check, if 
 uncollected, should be charged to depositor's account, rendered transaction bail- 
 ment for collection; Tyson v. Western Nat. Bank, 77 Md. 419, 23 L. R. A. 163, 26 
 Atl. 520, holding check deposited by customer for collection for account of in- 
 dorsers does not pass title to bank; Irwin v. Reeves Pulley Co. 20 Ind. App. 112, 
 48 N. E. 601, holding bank accepting for collection draft payable elsewhere, 
 liable only for ordinary care in selecting correspondent, and not for its de- 
 fault; National Bank of Commerce v. Johnson, 6 N. D. 184, 69 N. W. 49, hold- 
 ing certificate of deposit, indorsed and deposited for collection and credit, re- 
 mains property of depositor; Citizen's Nat. Bank v. City Nat. Bank, 111 Iowa, 
 215, 82 N. W. 464, holding drawee of check not bound to detect forgery of any 
 other signature than that of drawer; Freeman v. Exchange Bank, 87 Ga. 47, 
 13 S. E. 160, holding payee of bill of exchange, indorsing for deposit to credit 
 of himself, retains ownership of proceeds which are subject to garnishment by 
 his creditor; Blair v. Hill, 50 App. Div. 36, 63 N. Y. Supp. 670, holding pro- 
 ceeds of check collected for owner by agent and commingled with his own 
 remain property of owner; Arnot v. Bingham, 55 Hun, 556, 9 N. Y. Supp. 68, 
 holding note sent to bank for collection only remains property of sender, who 
 can collect proceeds from bank's receiver; Wilson v. Marion, 147 N. Y. 594, 
 42 N. E. 190, holding purchaser of real estate from assignee for benefit of cred- 
 itors under fraudulent assignment can hold it if ignorant of fraudulent intent 
 of assignor; Knower v. Central Nat. Bank, 124 N. Y. 561, 21 Am. St. Rep. 
 700, 27 N. E. 247, holding creditor of assignor for benefit of creditors to whom 
 assignee paid money can hold it against creditor setting aside the assignment; 
 Hutchinson v. Manhattan Co. 9 Misc. 344, 29 N. Y. Supp. 1103, holding title 
 of draft, indorsed generally, but shown to be for collection only, remains in in- 
 dorser; Wolff v. Zeller, 31 Misc. 257, 64 N. Y. Supp. 129, holding vendor in fraud- 
 ulent sale may recover chattels from assignee of vendee when sale rescinded be- 
 fore assignment; Gindre v. Kean, 7 Misc. 584, 28 N. Y. Supp. 4, holding consign- 
 ors of goods to del credere factor entitled to recover from his assignee for 
 creditors' moneys collected from purchasers subsequent to the assignment ; Asher 
 v. Deyoe, 77 Hun, 533, 28 N. Y. Supp. 890, holding bank taking mortgage to 
 secure antecedent debt on property purchased with intention of not paying there- 
 for, not entitled to hold such property as against seller; Bank of Clarke County v. 
 Oilman, 81 Hun, 490, 30 N. Y. Supp. 1111, holding owner of check for collection 
 and credit remains owner; O'Conner v. Gifford, 117 N. Y. 283, 22 N. E. 1036, 
 holding judgment creditor estopped from setting up claim against trustee un- 
 der will, when he had failed to present claim within six months after publica- 
 tion; Nash v. Second Nat. Bank, 67 N. J. L. 267, 51 Atl. 727, holding drawer -m- 
 Titled to proceeds of draft credited by collecting to forwarding bank after lat- 
 ter'e failure; Peters Shoe Co. v. Murray, 31 Tex. Civ. App. 261, 71 S. W. 977, 
 holding drawer of draft not entitled to follow proceeds in hands of assignee of 
 collecting bank. 
 
 Cited in footnotes to Milton v. Johnson, 47 L. R. A. 529, which denies power 
 of subagent to apply proceeds of debt collected to payment of claim due him from 
 principal agent; Waterloo Milling Co. v. Kuenster, 29 L. R. A. 794, which 
 throws upon depositor loss of worthless paper credited to him by bank receiv- 
 ing from other bank for collection; Northwestern Nat. Bank v. Bank of Com- 
 merce, 15 L. R. A. 102, which holds signature of drawer not guaranteed by 
 indorsing draft "for collection;" State Bank v. Byrne, 21 L. R. A. 753, which 
 holds drawee's acceptance of draft presented by collecting bank not payment; 
 
1429 L. R. A. CASES AS AUTHORITIES. [7 L.R.A. 861 
 
 Tyson v. Western Nat. Bank, 23 L. R. A. 161, wnich holds title does not pass by 
 indorsing "for collection;" Beal v. Somerville, 17 L. R. A. 291, which holds no 
 title to check passes by depositing for collection; First Nat. Bank v. Sprague, 
 15 L. R. A. 498, which holds bank receiving bill for gratuitous collection not 
 liable for defaults of reputable correspondent; Armstrong v. Boyertown Nat. 
 Bank, 9 L. R. A. 553, which denies right of receiver or creditors of bank credit- 
 ing owner with draft received for collection to demand proceeds from collect- 
 ing bank; Akin v. Jones, 25 L. R. A. 523, which holds direction to remit in 
 New York exchange, draft sent for collection, precludes claim that such proceeds 
 held in trust; Crocker- Woolworth Nat. Bank v. Nevada Bank, 63 L.R.A. 245, 
 which holds indorsement of check by bank holding it for collection "for clearing 
 house purposes only," not a representation that the bank is its owner; Garrison 
 v. Union Trust Co. 70 L.R.A. 615, which holds rule that bank making collection 
 is entitled to lien on proceeds to balance account with correspondent as against 
 title of original transmitting bank not changed by fact that bank to which draft 
 was sent by correspondent for collection was insolvent when receiving notice 
 of collection from third bank to which draft was forwarded for collection and 
 credit. 
 
 Cited in notes (32 L.R.A. 719) on trust in proceeds of collection made by bank 
 when insolvent; (77 Am. St. Rep. 628) on duties of banks acting as collecting 
 agents; (86 Am. St. Rep. 785, 795), on title of bank to money deposited with or 
 collected by it; (86 Am. St. Rep. 797) on right to recover money deposited with 
 or collected by bank upon its insolvency; (37 L. ed. U. S. 364, 365) on liability 
 of bank for collections; (3 Eng. Rul. Cas. 779) on liability of bank for money 
 received by correspondent bank. 
 Restrictive endorsement of commercial paper. 
 
 Cited in Murchison Nat. Bank v. Dunn Oil Mills Co. 150 N. C. 721, 64 S. E. 
 885, holding that the drawer of an instrument may by appropriate words in the 
 instrument, retain right to arrest payment. 
 
 Cited in note (4 Eng. Rul. Cas. 363) on restrictive indorsement of bills or notes. 
 
 7 L. R. A. 861, WADDELL v. UNITED STATES, 25 Ct. Cl. 323. 
 When claim l>arred. 
 
 Cited in Ray v. United States, 50 Fed. 168, and Wayne v. United States, 26 Ct. 
 Cl. 289. holding fund awaiting demand a trust against which six years' limita- 
 tion does not begin to run until repudiation of trust ; Maine_ v. United States, 
 36 Ct. Cl. 552, to point no general statute of limitations operates against ac- 
 counting officers in settlement of claims; Maine v. United States, 36 Ct. Cl. 557, 
 holding claimant misled by mistaken action of department in rejecting like 
 claims not chargeable with laches; Cantua v. United States, 43 Ct. Cl. 572, 
 holding court of claims will not consider state claims. 
 
 Cited in note (32 L.R.A. (N.S.) 245) on statute of limitations as defense to 
 action by municipality for injury to property. 
 
 Distinguished in Balmer v. United States, 26 Ct. Cl. 89, holding claim not 
 barred within Bowman Act if it could be settled by any department or tribunal. 
 Finality of decision. 
 
 Cited in Armstrong v. United States, 29 Ct. Cl. 170, holding decision of comp- 
 troller disallowing claim final, unless opened for fraud, mistake, or newly dis- 
 covered evidence; Cantua v. United States, 43 Ct. Cl. 572, holding that claim 
 which is not within jurisdiction of head of executive department to settle, is not 
 "pending" claim within meaning of Tucker Act, of 1887, and cannot be referred 
 thereunder to this court. 
 
UCSB