made, to notes other than the one in suit, held erro. neous, where other payments made during the same time had been indorsed on such a note.-Estes v. Fry, Mo., 65 8. W. Rep. 741.

140. PRESUMPTIONS—Unfavorable Presumption from Failing to Testify.-Where party ɔharged with fraud in an action fails to testify, an unfavorable presump. tion arises against him.-Stephenson v. Kilpatrick, Mo., 65 8. W. Rep. 773.

141. PRINCIPAL AND AGENT-Expenditures Occurring Because of Agent's Negligence.-An agent held not entitled to reimbursement for advances and expenditures rendered necessary by reason of his own fail. ure to exercise reasonable diligence in the conduct of the agency.-Veltum v. Koehler, Minn., 88 N. W. Rep.

432.

142. PRINCIPAL AND SURETY-Release Because of Extension.-Surety held not released because of exten. sion of time given his principal, where creditor expressly reserves remedies against surety.-Dean v. Rice, Kan., 66 Pac. Rep. 992.

143. PROCESS-Service on Wife Where Husband Had Left the State.-Substituted service of process on a husband by leaving copy with wife at the dwelling house of a neighbor, the husband having permanently left the state, held insufficient.-Phelps v. McCollam, N. Dak., 88 N. W. Rep. 292.

144. PROHIBITION-When Writ Lies.-The writ of pro. hibition only lies when some lower tribunal is acting without jurisdiction, or in excess of its jurisdiction, and there is no adequate remedy at law. People v. District Court of Second Judicial District, Colo., 66 Pac. Rep. 1068.

145. PUBLIC LANDS Collateral Attack of Patent.Patent from land department held impervious to col. lateral attack for errors of law as well as mistakes of fact.—Kings v. McAndrews, U. S. C. C. of App., Eighth Circuit, 111 Fed. Rep. 860.

146. RAILROADS-Burden of Proof for Killing Live Stock.-Under Acts 1886, No. 70, owner of stock killed on railroad need not prove negligence.-State v. Foster, La., 31 South. Rep. 57.

147. RAILROADS — Establishment of a Private Railroad. Establishment of a private railroad cannot be sided by the power of eminent domain.-Maginnis ▼. Knickerbocker Ice Co., Wis., 88 N. W. Rep. 300. 148. RAILROAD8-Statutory Right to Recover Attor ney's Fees.-The statutory right to recover attorney's fees in an action against a railroad for property de. stroyed by fire negligently set out by it depends on the right of the plaintiff to recover in the general action, and is not an independent cause of action.-St. Louis & 8. F. Ry. Co. v. Ludlum, Kan., 66 Pac. Rep. 1045.

149. RAILROADS Trespasser on Track.-Plaintiff, while walking along the cross-ties of the track, cannot complain that the train men were guilty of negligence in failing to give signals of approach.-Mizzell v. Southern Ry. Co., Ala., 31 South. Rep. 86.

150. RECORDS-Wrongful Retention.-The method or motive through which the court's attention was di rected to the wrongful retention of certain papers from the files is immaterial, since it could proceed on its own motion to have them restored.-Howes v. Mutual Reserve Fund Life Assn., Iowa, 88 N. W. Rep. 338.

151. REFERENCE-Filing Exceptions.-It was error to confirm a commissioner's report on the same day on which it was filed, as a reasonable opportunity should have been given the parties to file exceptions.- Equitable Loan & Investment Co. v. Smith, Ky., 65 S. W. Rep. 609.

153. REGISTRATION-Probate Records as Notice.Probate records, showing a claim of title to land by a stranger to the record title, held not constructive notice to one who claims in the record chain of title.Prest v. Black, Kan., 66 Pac. Rep. 1017.

154. REPLEVIN-Against Co Tenant,-Tenant in com mon held not entitled to maintain replevin for the common property against his co tenant, nor against one in possession as joint agent of the tenants in com. mon.-Smith-McCord Dry Goods Co. v. Burke, Kan., 66 Pac. Rep. 1036.

155. SALES-Damages for Failing to Deliver.-Where defendant failed to but did not refuse to make delivery until some time later, the breach of the contract occurred at the time of the refusal, for the purpose of fixing the measure of damages.-Ralli v. Rockmore, U. 8. C. C., N. D. Ga., 111 Fed. Rep. 874.

156. SALES Subsequent Shipments After Refusal of Vendee.-In an action for breach of contract, consist. ing in defendant's failure to accept telegraph poles purchased of plaintiff, held, that plaintiff was not re quired to continue to ship poles after defendant's refusal to accept the same.-Berthold v. St. Louis Electric Const. Co., Mo., 65 S. W. Rep. 784.

157. SCHOOL AND SCHOOL DISTRICTS-Contractor's Right Where Bill Exceeds Constitutional Indebtedness. That contract with a school district, which in creases its indebtedness beyond the constitutional limitation, is not severable, will not defeat contractor's right to enforce the contract within the constitutional limitation. -McGillivray v. Joint School Dist. No. 1, Wis., 88 N. W. Rep. 310.

158. SEAMEN-Validity of Release.-A release ex ecuted before a shipping commissioner on a settlement and discharge of seamen, in conformity to Rev. St. § 4552, is conclusive on the parties, in the absence of fraud or coercion.-Pettersson v. Empire Transp. Co., U. S. C. C. of App., Ninth Circuit, 111 Fed. Rep. 931.

159. SET-OFF AND COUNTERCLAIM - Partnership and Individual Debts.-Under Code, § 3728, held, that a partner, sned individually for a partnership debt, cannot set off a debt owned by the partnership.-Drennen v. Gilmore, Ala., 31 South. Rep. 90.

160. SHERIFFS AND CONSTABLES - Contradicting Return. A sheriff's return on an execution cannot be contradicted by him in a collateral action on his official bond.-Breckenridge Mercantile Co. v. Bailif, Colo., 66 Pac. Rep. 1079.

161. SHERIFfs and ConsTABLES-Suspension by Gov. ernor. The power of a governor to suspend a sheriff during investigation involves the exercise of discre tion and good judgment by the governor.-State v. Megaarden, Minn., 88 N. W. Rep. 412.

162. SHIPPING-Oral Representations of Shipper as to Speed. Representations made by a shipowner. prior to a charter, respecting the speed of his vessel, but which are not embodied in the charter, are superseded by that instrument, in the absence of fraud or mutual mistake.-Matthias v. Beeche, U. S. D. C., E. D. N. Y., 111 Fed. Rep. 940.

163. STATES-Breach of Contract of Purchase.-In an action by the financial agent of the state penitentiary on notes given in settlement of purchases, held, that the defense of a breach of the contract of purchase was not an action against the state.-Rice v. Dickson Car Wheel Co., Tex,65 S. W. Rep. 645.

not entitled to be subrogated to the mortgage on sale of property at execution under the judgment.-Hargis v. Robinson, Kan., 66 Pac. Rep. 988.

166. TAXATION Assessment of Franchises.-In assessing the taxes of a telegraph company existing un der the laws of another state, the board of equaliza. tion properly took into consideration its franchise, together with the actual cost of its tangible property. -State v. Western Union Tel. Co., Mo., 65 S. W. Rep. 775.

167. TAXATION-Taxable Property of Insurance Com. panies. Comp. Laws, § 3834, providing that the taxable property of insurance companies shall be computed by deducting the value of taxable real estate from its net assets above liabilities, as shown by the report of the commissioner of insurance, is not in conflict with Const. art. 14, § 11.-Michigan Mut. Life Ins. Co. v. Hartz, Mich., 88 N. W. Rep. 405.

168. TAXATION-Vold Tax Sales.-A sale for taxes which have been paid confers no title on the purchaser. -Hake v. Lee, La., 31 South. Rep. 54.

169. TELEGRAPHS AND TELEPHONES - Damages for Failure to Deliver Telegram. - Father held not entitled to damages for mental anguish caused by failure to deliver message, whereby a brother-in law was pre vented from being present at the death of a daughter. -Western Union Telegraph Co. v. Ayers, Ala., 31 South. Rep. 78.

170. TRIAL AND PROCEDURE-Defense of Former Suit Pending. The defense of a former sult pending must be raised by a ver.fied plea in abatement, and not by a motion to quash the proceedings.-Ryan v. Mills, Mich., 88 N. W. Rep. 392.

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171. TRIAL AND PROCEDURE Special Findings. Where special findings and general verdict are inconsistent, the special findings are the verdict.-Garth v. Board of Comrs. of Edwards County, Kan., 66 Pac. Rep. 999.

172. TROVER AND CONVERSION-Measure of Damages. -If property converted be returned, the measure of the defendant's liability is the difference between the market value when taken and the market value when returned, with interest.-Prinz v Moses, Kan., 66 Pac. Rep. 1009.

173. TRUSTS-Beneficiaries Bound by Stipulation of Trust Deed.-Beneficiaries in a trust deed, claiming title to the land by virtue of its recitals. are bound by its other conditions, and cannot repudiate a stipula. tion therein that the trustee shall have power to sell the property.- Kahle v Stone, Tex, 64 South. Rep. 623. 174. USURY-Recovery of Usury Paid.-A defendant who has paid a judgment may recover usury embraced therein, though the defense that the claim sued on embraced usury was available in the original action.Equitable Loan & Investment Co. v. Smith, Ky., 65 S. W. Rep. 609.

175. USURY--Recovery of Usury Paid.-Where de. fendant paid an attorney's fee stipulated for in a mortgage and erroneous'y allowed, he cannot recover the amount as usury paid, as it was a penalty merely, and not usury.- Equitable Loan & Investment Co. v. Smith, Ky., 65 8. W. Rep. 609.

176. WATERS AND WATER COURSES-Flowing Waste Water as Natural Stream.-Waters flowing through a tunnel derived from drainage, pumpings, and a waste weir of electrical machinery, do not constitute a natural stream, and are not subject to appropriation. -Cardelliv Comstock Tunnel Co., Nev., 66 Pac. Rep. 950.

177. WATER COMPANIES-Requiring Payment in Advance. A water company, though exercising quasi public functions, may reasonably require payment in advance by the consumer, and enforce the require ment by cutting off the supply for non-compliance therewith. Hieronymus v. Bienville Water Supply Co., Ala., 31 South. Rep. 31.

178. WILLS-Devise During Widowhood.-Will con

strued, and held, that a widow under a devise to her so long as she remained testator's widow, etc., took only an estate limited on her remarriage, and not a fee. Shaw v. Shaw, Iowa, 88 N. W. Rep. 327.

Dislikes.

179. WILLS-Evidence as to Testator's Where the meaning of a will can be gathered from the instrument itself, declarations of testatrix, showing her feelings towards a person affected thereby, held properly excluded.-Webb v. Hayden, Mo., 65 S. W. Rep. 760.

180. WILLS-Executed During Period of Delirium Tremens. A will, executed during attack of delirium tremens, will be maintained, if executed during a lu cid interval.-Succession of Crouzeilles, La., 31 South. Rep. 64.

181. WILLS-Illicit Relation as Proof of Undue Influence. An instruction, in a will contest case, that illicit relation with the principai beneficiary is a strong circumstance showing undue influence, held not erroneous.-Waters v. Reed, Mich., 88 N. W. Rep. 394.

182. WILLS-Oral Consent of Wife.-The wife's oral consent to the will at the time it was written is not binding on her.-Cook v. Lawson, Kan., 66 Pac. Rep. 1028.

183. WILLS-Rebutting Presumption of Undue Infiu. ence from Confidential Relations.-In order to rebut the presumptions of undue influence as to dispo. sitions of property. arising from confidential rela tions, the party seeking benefit thereof must show that the confidential relations were severed, and the other party had independent advice.-McQueen v. Wilson, Ala., 31 South. Rep. 94.

184. WILLS-Sufficiency of Attestation.-The signa. ture of witnesses to a will will not constitute a suffi cient attestation thereof, where the testatrix does not indicate to them in any way what the paper Is.-Richardson v. Orth, Oreg., 66 Pac. Rep. 925.

185. WITNESSES-Conversation With Deceased Person. A party is not rendered competent to testify as to conversation with person since deceased by the fact that a third person heard the conversation and testified as to it.-Payne v. Long, Ala., 31 South. Rep. 77. 186. WITNESSES-Husband and Wife.-Husband held competent witness in case, after his wife had been dismissed out of it.-Van Valkenburg v. Lynde, Kan., 66 Pac. Rep. 994.

187. WITNESSES-Mortgagor Incompetent to Testify as to Acts With Deceased Mortgagee.-Mortgagors held to be persons from, through, or under whom the mortgagee derives title, so as to be Incompetent, under Code, § 4604, to testify as to transactions with a decedent. Clinton Savings Bank v. Grohe, Iowa, 88 N. W. Rep. 357.

188. WITNESSES-Refreshing Memory.-Testimony of a police officer at a preliminary examination may be read to him on a criminal trial to refresh his memory. -People v. Joy, Cal., 66 Pac. Rep. 964.

189. WITNESSES-Surgeon's Testimony as to Charac ter of Wound.-Under Code, § 4608, a surgeon was not precluded from testifying on a trial for murder that he was called to attend deceased, and found her suf. fering from wounds which he believed were received in an attempt to peform a criminal operation.-State v. Grimmell, Iowa, 88 N. W. Rep. 342.

190. WITNESSES-Testimony of Heirs as to Advancements.-Heirs held incompetent, under Code, § 4604, to testify that notes given by one of the heirs of the de ceased were in advancement and not a debt.-Russell v. Smith, Iowa, 88 N. W. Rep. 361.

191. WORK AND LABOR-Services of Daughter to Mother. To enable a daughter to recover from her mother's estate for services in caring for her mother, there must be sufficient evidence of at least an im. plied agreement for reimbursement, to overcome the presumption of gratuitious service. - Decker v. Kanous' Estate, Mich., 88 N. W. Rep. 398.

-nay, he assumes it before the hour of judgment; and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion in the scale against the accused, in whose favor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel."

NOTES OF IMPORTANT DECISIONS.

TRIAL AND PROCEDURE-ERROR IN JUDGE GOING TO SLEEP DURING TRIAL.-Poor human nature sometimes exhausts itself even in the effort to do justice. In the making of laws and in their enforcement legislators and executive officers should continually bear in mind the weakness of human flesh and make some allowance for the man in whom "the spirit is willing, but the flesh is weak." A notable instance of the force of these observations is to be found in the recent case of Chicago City Railway Company v. Anderson, 61 N. E. Rep. 999, in which the Supreme Court of Illinois held that where a trial judge slept four or five minutes during the introduction of evidence, but neither party objected to his being asleep, or called his attention thereto, and no objection appeared to have been taken to evidence introduced during the period, it was not cause for reversal. The court said: "This trial occupied eight or nine days, and may have been conducted in such manner as to exhaust almost any one compelled to listen to it, as was the presiding judge. Conceding the irregularity of the presiding judge going to sleep while a trial is progressing, we cannot hold the mere circumstance of his having slept four or five minutes reversible error. If the judge was asleep, as certified, counsel must have known it, and knowing it they should either have suspended the examination of the witness then testifying until the judge awoke, or have awakened him by calling his attention, in a voice sufficiently loud to awake him, to the fact that the trial was progressing. Counsel did neitber, but proceeded with the examination, and after the judge awoke failed to call his attention to the fact that testimony had been given while he was asleep, or to object in any way. It does not appear what testimony was taken while the judge was asleep, or that there is any objection to it, or that it was in the least, prejudicial to either party."

DIVORCE-IMPRISONMENT FOR DEBT IN CASES OF NON-PAYMENT OF ALIMONY.-We sometimes hear it stated broadly that there is to-day no imprisonment for debt. Technically speaking this is correct, but one apparent exception must be kept in mind, which is clearly illustrated by the recent case of In re Cave, 66 Pac. Rep. 425, where the Supreme Court of Washington held that where one who had been required by a de

cree in divorce to pay alimony refused to comply with an order that he pay the alimony forthwith, and he being then personally before the court, the court found that he had money in his posession with which he might obey the decree, the court had authority to punish him by immediate imprisonment until the order was complied with. Cases of this kind, of course, come within the power and jurisdiction of the court to punish for contempt. Statutes in many of the states provide that when a contempt consists in the failure or refusal of one to do an act which he is able to do, he may be imprisoned until he performs it. Such a provision gave authority to the court in the principal case. The court said: "Where the statute is silent as to the remedy, the court has inherent power to enforce its judgments or decrees and orders according to its equity powers. The silence of the statute in this respect does not take away any power lodged in the court by its equity jurisdiction. 3 Pom. Eq. Jur. §1318; 2 Daniell, Ch. Prac. *1042 et seq.; 2 Bish. Mar. Div. & Sep. §1114; 1 Enc. Pl. & Prac. pp. 434, 437; O'Callaghan v. O'Callaghan, 69 Ill. 552. In this state no rule is provided by statute for the enforcement of such decrees, but the rule of attachment has been generally followed in the practice and approved by this court. In the case of State v. Smith, 17 Wash. 430., 50 Pac. Rep. 52, where the plaintiff was allowed by final decree $25 per month 'as alimony and for the support of said children,' this court said: 'It is the duty of courts to enforce their orders, and when it comes to their knowledge that such orders are not obeyed they should require and enforce such obedience by punishment for contempt.' In the case of State v. Ditmar, 19 Wash. 324, 53 Pac. Rep. 350, this court said: 'It will be conceded that, if it is out of the power of the party against whom the decree is entered to comply with its conditions, and this showing is made to the court, he has purged himself of the contempt. But the case cited is authority on the proposition that the remedies are cumulative, and that where other remedies exist, and the party has contumaciously refused to obey the decree of the court, he may be punished for contempt.' We are not disposed to depart from the rule in these cases. The case entitled In re Van Alstine, 21 Wash. 194, 57 Pac. Rep. 348, is cited as announcing a different rule. In that case, however, the court declared that the decree was for money, 'a decree analogous to a money judgment at law which may be enforced by process against property,' and for that reason it was held that the court was without power to require the money to be paid into court and enforce such payment by imprisonment."

RELEASE-VALIDITY OF CONTRACTS BY NEXT OF KIN RELEASING COMMON CARRIERS FROM LIABILITY FOR NEGLIGENCE.-In Tarbell v. Rutland R. R., decided by the Supreme Court of Vermont in December, 1901 (51 Atl. Rep. 6),

it was held that a contract between a railroad company and the next of kin of an employee, whereby the latter released the railroad from all damages that might accrue by reason of its negligence, was void as against public policy. It appeared that the plaintiff, as next of kin of a proposed employee, before his employment by the defendants and in consideration that it would employ him, entered into a written agreement with the defendant by which the plaintiff released and discharged it from all damages that might accrue to the plaintiff as next of kin, by reason of the defendant's negligence during the employment. The suit was brought by the plaintiff as administrator of the employee for damages for negligence causing his death. It was contended on behalf of the defendant that, conceding that a contract for immunity from liability for negligence between itself and an employee would not be upheld, the contract in question, being with the next of kin of the employee, is not objectionable. The court had little difficulty in demonstrating that the same considerations that have led the federal courts and the courts of many of the states, including Vermont, to hold contracts with an employee himself contrary to public policy, apply with equal force to a contract of the kind under consideration.

The question is suggested whether any distinction between the two kinds of contract could be made in such a state as New York, where contracts by employees or passengers themselves, exonerating a carrier from liability for negligence, if sufficiently definite and specific in their terms, are upheld. Kenney v. Railway Co., 125 N. Y. 422, and cases cited. The better view would seem to be that there is no logical distinction between the two classes of cases. It might be said that a contract by a next of kin of a proposed employee is contingent. He agrees that if the employee subsequently be killed, and that he (the contracting party) be the next of kin at the time of the death, he will not make any claim. Nevertheless, according to the usual analogies of the law, there is no objection to a person releasing in advance a benefit or right which contingently may accrue to him. On the question of consideration, the position of the company is that it made a contract of employment which presumably it would not have made unless, as one of the elements of consideration moving to it, the next of kin executed the release. The contract is analogous to one of suretyship which is enforcible though no consideration moves to the surety. Another somewhat technical ground may be suggested for a distinction. Actions for damages for death are statutory, the remedy being founded upon enactments modeled upon Lord Campbell's act in England. There are cases in some of the states holding that where by statute special precautions for the safety of passengers, employees and the public are prescribed, and a cause of action expressly granted for their

neglect, such a law constitutes a definite expression of public policy which, in any event, would preclude the recognition of a contract of exemption from liability. See Starr v. Great Northern Railway (Minn.), 69 N. W. Rep. 632. It might be argued that the grant by statute of a right of recovery to, or in favor of, the next of kin of a decedent is such an explicit declaration of public policy that it could not be contracted against, even though contracts of immunity may be upheld as against living persons who sue upon common-law rights. We own that we do not consider this point a very strong one.-New York Law Journal.

ENFORCEMENT OF CONTRACT VALID WHERE MADE, BUT CONTRARY TO THE PUBLIC POLICY OF THE STATE OF THE FORUM.

Two recent cases, one in Missouri, the other in Wisconsin, exhibit a peculiar difference of opinion on an exactly similar state of facts. In the Missouri case, Edwards Brokerage Co. v. Stevenson,1 the defendant, in St. Louis, authorized the plaintiff, a brokerage company, to purchase stocks for him on margin. The plaintiff purchased them in New York, but the market falling they were afterwards sold out and the plaintiff sued for money advanced and commissions. The transaction was illegal under the provisions of the Missouri statute concerning option sales. It did not appear, however, that such contracts were illegal by the law of New York, and on the ground that it was a New York contract which was sued on and not a Missouri contract the plaintiff was held entitled to recover. "The plaintiff," said Burgess, J., in a very brief opinion, "in its purchase of the stock, was not restricted to any particular market, and, having purchased and paid for it in the city of New York, it was to all intents and purposes a contract of that state."

In the Wisconsin case, Bartlett v. Collins,2 the action was by brokers to recover for moneys advanced and services performed in the purchase of grain for the defendant on the Chicago Board of Trade. Both parties, as in the Missouri case, were residents of the same state (Wisconsin). The defense, as in the Missouri case, was that the transaction was in violation of the Wisconsin statute as to gaming. This was admitted, but it was insisted by the plaintiffs that the grain having been purchased in Chicago, the contract was an Illinois contract and was not in violation of any law of Illinois. But the court properly held that it was a Wisconsin contract and, therefore, to be governed by the law of Wisconsin." "The contract in question," said Winslow, J., "is the brokerage contract by which the defendant employed plaintiffs to sell wheat for him in Chicago,

1 160 Mo.; 61 S. W. Rep. 617.

2 85 N. W. Rep. 703.