affect the jurisdiction of the court which rendered it. - United States v. Eisenbeis, U. S. C. C. of App., Ninth Circuit, 112 Fed. Rep. 190.

96. JUDGMENT-Reply to Answer of Res Judicata.A reply to an answer of res judicata, in an action against an indorser on a note, held not subject to demurrer as alleging no facts which could not have been presented and considered in a prior action on the note.-Peck v. Easton, Conn., 51 At!. Rep. 134.

97. JUDGMENT-Right to Lien.- Where a judgment debtor has a bare legal title of land, without interest, and the equitable title is in another, the lien in equity does not attach.-Dalrymple v. Security Loan & Trust Co., N. Dak., 88 N. W. Rep. 1033.

98. LANDLORD AND TENANT-Re-entry for Failure of Lessee to Comply with Covenants. A failure by a lessee to reasonably comply with a covenant of the lease in which the lessor has a valualle interest constitutes a breach of condition which warrants a re. entry, whether such failure is due to inability or merely to neglect.-Boston El. Ry. Co. v. Grace & Hyde Co., U. S. C. C. of App. First Circuit, 112 Fed. Rep. 279.

99. LIFE INSURANCE-Effect of False Statement in Application.-A false statement in an appl cation for life insurance as to the time when applicant was last treated by a physician, and the disease for which he was last treated, is fatal to recovery on the policy.— Priestly v. Provident Sav. Co., U. S. C. C.. E. D. Pa., 112 Fed. Rep. 271.

100. LIFE INSURANCE-Rights of Assignee.-Assignee of a pad up 1 fe policy held to have acquired the beneficial title thereto, though neither the policy nor the instrument assigning it were ever delivered to her.-Appeal of Colburn, Cɔnn., 51 Atl. Rep. 139.

101. LIMITATION OF ACTIONS- Action Against Insolv. ent Corporation. The statute of limitations does not run against a person claiming damages for injuries inflicted by an insolvent corporation until its officers indicate to the claimant an intention to repudiate the trust created by law. Scott v. Farmers' & Merchants' Nat. Baik, Tex., 66 S. W. Rep. 485.

102. MANDAMUS - Motion to Supersede a Writ of Mandamus. A motion to supersede a writ of man damus admits the facts alleged in the relation.-State v. Supervisors of Town of Clifton, Wis., 88 N. W. Rep. 1019.

103. MARRIAGE-Common-Law Marriage.-A contract between a man and woman competent to contract to become husband and wife, made in good faith and followed by consistent and notoricus matrimonial co habitation, constitutes a valid marriage at common law.-Davis v. Pryor, Ü. 8. C. C. of App., Eighth Circuit, 112 Fed. Rep. 274.

104. MASTER AND SERVANT- Assumption of Risk. Complaint showing failure to enforce rules of employ. ment, whereby plaintiff was injured, and the plaintiff had full knowledge of such violation, held to show that be bad assumed the risk. Reberk v. Horne & Danz Co., Minn., 88 N. W. Rep. 103.

105. MASTER AND SERVANT-Assumption of Risk.-A freight brakeman, ordered by a railroad company to brake on a passenger train having cars with mismatched couplers, held not to have assumed the risk of such defective appliances.-Southern Pac. Co. v. Winton, Tex., 66 S. W. Rep. 477.

106. MASTER AND SERVANT-Rules of Master.-In an action against a railroad company for negligence of a conductor, whereby a brakeman was killed, it was not error to receive in evidence a rule of defendant re quiring conductors to take every precaution for the protection of their trains.-Pearl v. Omaha & St. L. R. Co., Iowa, 88 N. W. Rep. 1078.

107. MORTGAGES Foreclosure by Advertisement.Where mortgagees take possession without consent under color of foreclosure by advertisement, which was illegal, such possession was wholly unlawful.McClory v. Ricks, N. Dak., 88 N. W. Rep. 142.

108. MUNICIPAL CORPORATIONS-Failure to Carry Out Original Plan of Street Paving.-A petition for street paving signed by a property owner, and the paving of the street by the city in a manner different than called for by the petition, held not to require the property owner to pay his proportion of the expenses.-Winne bago Furniture Mfg. Co. v. Fond du Lac County, Wis., 88 N. W. Rep. 1018.

109. MUNICIPAL CORPORATIONS - Liability to One Riding Bicycle on Sidewalk. Where plaintiff was rightfully riding his bicycie on a sidewalk, the city would be liable if he was injured because the walk was not reasonably safe for pedestrians – Gagnier v. City of Fargo, N. Dak., 68 N. W. Rep. 1030.

110. MUNICIPAL CORPORATIONS Penalty Against Keeping Dog.- Where a city ordinance denounced a penalty against any one having an unlicensed dog, it was not neces in the complaint in an action for violation thereof that defendant was a resi dent of the city, although another section of the ordi. nance confined the right to license dogs to residents. -State v. Nohl, Wis., 88 N. W. Rep. 1004.

111. NEGLIGENCE - Allegation of Negligence.-In an action for personal injuries, an allegation that the acts complained of were negligently done will not render the complaint invulnerable to demurrer, where It appears from the facts charged that the acts charged were not negligent. - Lake Shore & M. S. Ry. Co. v. Butts, Ind,, 62 N. E. Rep. 647.

112. NEGLIGENCE-Contributory Negligence.-Where the conductor of a train beckoned to a passenger as they were nearing his station, and the passenger going to the door, swung off in the dark, the carrier was not liable.-Illinois Cent. R. Co. v. Hanberry, Ky. 66 S. W. Rep. 417.

113. NEW TRIAL Letter Book as Cumulative Evidence. Books which would only assist the letters of their keeper, read on the trial, held to be cumulative evidence, and therefore not ground for new trial.Bridges v. Williams, Tex., 66 S. W. Rep. 484.

114. PARENT AND CHILD-Liability for Support. -A father whose conduct has rendered it necessary to deprive him of the custody of his child is not thereby re leased from his duty to support him.-Leibold v. Lei' bold, Ind., 62 N. E. Rep. 627.

115. PARTIES-Failing to Demur to Defect of Parties. -Under the statutes of Kansas a defendant cannot object to a defect of parties plaintiff on the trial, where no objection was taken by demurrer or by his answer. Buckingham v. Dake, U. 8. C. C. of App., Eighth Circuit, 112 Fed. Rep. 258.

116. PARTNERSHIP Rights of Surviving Partner. Contract purporting to be by two individuals doing business under a firm name, and signed in such firm name, held not to be act of surviving partner, though the one not signing was the surviving partner.- Baird v. Harper, Del. 51 Atl. Rep. 141.

117. PLEADING- Filing Amended Petition After Trial. -The court did not abuse its discretion in refusing to permit the fling of an amended petition, rot offered until after one trial had been had.- Board of Internal Improvement for Lincoln County v. Moore's Admr., Ky., 66 S. W. Rep. 417.

118. PRINCIPAL AND AGENT Liability of Agent for Accepting Unauthorized Consideration.-A principal in an action against an agent for damages for aceepting less than the agreed consideration for property sold must plead the return or offer to return of the consideration received for the property. - Lunn v. Guthrie, Iowa, 88 N. W. Rep. 1060.

119. PRINCIPAL AND SURETY-Defense That Principal Was in Default. When Elected -The suretis on the official bond of a school treasurer are estopped from alleging, as a defense to their liabil ty on the bond, that the treasurer was a defaulter at the time of his election, and ineligible to the office under Const. art. 2. § 10.-Hogue v. State, Ind., 62 N. E. Rep. 656.

120. RAILROADS-Validity of Condition Against Liability for Fires.-Where a railroad company grants permission to another to co struct a building on its right of way, on condition that it shall not be liable for loss by fire from its locomotives, the condition is valid.-Greenwich Ins. Co. v. Louisville & N. R. Co., Ky., 66 S. W. Rep. 411.

121. RECEIVING STOLEN GOODS-Proving Name of Thief. Where an Information for receiving stolen property unnecessarily alleges the name of the thief, or that his name is unknown, it must be proved as alleged to identify the offense.-Semon v. State, Ind., 62 N. E. Rep. 625.

122. REFORMATION OF INSTRUMENTS-Ground of Mistake. Where there is no mutual mistake in the description in a deed of the property to be conveyed, and the parties intend to describe the land conveyed, a reformation thereof is not warranted on the ground of mistake. Sherwood v. Johnson, Ind., 62 N. E. Rep. 615.

123. SALES Damages for Failure to Deliver.-Under Rev. Codes, § 4985, the measure of damages for breach of a contract to deliver personalty is the detriment caused by failure to deliver, and, where the price has not been paid in advance, is the excess of the value of the property to the buyer over the amount which would have been due if the contract had been fulfilled. -Talbot v. Boyd, N.,Dak., 88 N. W. Rep. 1026.

124. SHIPS AND SHIPPING-Vessel Without a Lookout. -It is culpable negligence for an officer to leave his vessel entirely without a lookout, especially when an. other vessel is known to be in the vicinity.-Wilder's S. S. Co. v. Low, U. S. C. C. of App., Ninth Circuit, 112 Fed. Rep. 161.

125. STATUTES-Plurality of Subjects in Title. - Where the subject of an act is single, and is expressed in the title, the act is not invalid because the title announces a plurality of sulj cts.-Eaton v. Guarantee Co. of North Dakota, N. Dak., 88 N. W. Rep. 1029.

126. TAXATION - Burden of Proving Authentication of Tax Bills.-In an action by a city to recover taxes, the burden of proof was on plaint ff to show that the tax bills were properly authenticated; that fact being denied by the answer.-R.ccius v. City of Louisville, Ky., 66 S. W. Rep. 410.

127. TAXATION-Excluding from Assessment.-Exclusion of a worthless account in estimating valuation of estate for the purpose of transfer tax held proper.-In re Manning's Estate, N. Y., 62 N. E. Rep. 565.

128. TAXATION

National Bank Property.- Under Gen. St. 1888, §§ 3832, 3833, 3836, property of a national banking corporation, used in the transaction of its business, is not subject to direct taxation.- Middletown Nat. Bank v. Town of Middletowг, Conn., 51 Atl. Rep. 138.

123. TAXATION-Right to Compel Return of Illegal Taxes.-The state audilor may be required by man damus to draw bis warrant in favor of a bank for an excess of taxes paid by it into the treasury by reason of a mistake as to the rate of taxation, but not for an excess of taxes paid by reason of an erroneous assess ment.-German Security Bark v. Coulter, Ky., 66 S. W. Rep. 425.

130. TAXATION-Right to Redeem. The owner of land held to have no right to redem from tax sale, though it was tax d in n»me of another and notice to redeem was given only to such other person and those in possession. - Hawkeye Loan & Biokerage Co. v. Gordon, Iowa, 88 N. W. Rep. 1081.

131. TAXATION-Transfer Tax on Gifts.- Gift of stock, with reservation of dividends and right to vote, is subject to transfer tax.- In re Brandreth's Estate, N. Y., 62 N. E. Rep. 563.

133. TRESPASS-Liability of One Who Accepts Ben. efits. Where a trespass is done for the benefit of an. other, who subsequently agrees to the act, it renders him liable as though he had originally commanded it. -Brown v. City of Webster City, Iowa, 88 N. W. Rep. 1070.

134. TRIAL-Equitable and Common-Law Issues.Where an answer in an action at law presents equitable issues, they should be tried and determined by the court before submitting the common law issues to a jury.-Arnett v. Smith, N. Dak., 88 N. W. Rep. 1037. 135. TRIAL - Motion for Judgment Notwithstanding Special Verdict.-A party aggrieved by a special verdict cannot move the count for judgment notwithstanding such verdict.-Scott v. Farmers' & Merchants' Nat. Bank, Tex.. 66 S. W. Rep. 485.

136. TRIAL-Right to View the Evidence.-The court did not abuse its discretion in permitting the jury to be taken to the court house yard to see a horse and phaeton offered by plaintiff as evidence.- Board of Internal Improvement for Lincoln County v. Moore's Admr., Ky., 66 S. W. Rp. 417.

137. TRIAL AND PROCEDURE- Separate Findings for Separate Parties.-The court cannot be required to make separate findings of fact as to each separate plaintiff or defendant, or group of plaintiffs or defend. ants.-Turpie v. Lowe, Ind., 62 N. E Rep. 628.

138. TROVER AND CONVERSION-Assessing Damages. -In an action for conversion of bonds, the value of other bonds delivered to plaintiff in lieu thereof should be deducted in fixing the measure of damages. -Storis v. Robinson, Conn., 51 Atl. Rep. 135.

139. TRUSTS AND TRUSTEES-Right of Trustee to Sell Securities in His Possession.- A sale of securities by a trustee, with whom they were deposited by a cor. poration to secure an issue of bonds, held fraudulent and voidable as against a holder of such bonds.-Anthony v. Campbell, U. S. C. C, of App., Eighth Circuit, 112 Fed. Rep. 212.

140. WILLS-Determination of M. mbers of a Class.Where a devise is to a class, the members of the class are prima facie to be determined on the testator's death, unless the will indicates a contrary intent.In re Nicholson's Will, Iowa, 88 N. W. Rep. 1064.

141. WILLS-Payment of Mortgage on Devise -On a simple devise of land to parties nd their heirs, forever, mortgages previously executed by the testatrix are payable by the executor.-Bulkley v. Seymour, Conn., 51 Atl. Rep. 125.

142. WILLS-Right of Beneficiary to Increase in Trust Property as "Profits."-Where a testator directed that the "interest and profits" of a fund be paid to his daughter "annually," the principal at her death to go to her surviving children, property in which the fund was invested hav ng sold for much more than the amount of the fund originally invested, the diughter was not entitled to the increase in value as "profi's," but to the income thercof.- First Nat. Bank v. Lee, Ky., 66 S. W. R. p. 413.

143. WILLS-Undue Influence of Priest.-The relations ex sting between a priest and testator held under the evidence, in a will contest case, to impose on the priest the burden of showing that the will was not procured though undue in fluence. In re Spark's Will, N. J., 31 Atl. Rep. 118.

144. WITNESSES - Impeachment of a Party's Own Witness. A party cannot introduce the testimony of a third person to show that his own witness has, since testifying, made statemer ts contradictory of her testi. mony.-Appeal of Carpenter, Conn., 51 Atl. Rep. 126.

145. WITNESSES-Right of Wife to Testify for Hng. band as Administrator of Child.- Th wife may testify for plaintiff in an action by the husbard as admin'strator to recover damages for the death of their infant child, though she and the husband are the joint bene ficiaries of the recovery.- Board of Internal Improve ment for Lincoln County v. Moore's Admr., Ky., 66 S. W. Rep. 417.

Central Law Journal.

ST. LOUIS, MO., APRIL 25, 1902.

DISCHARGE IN BANKRUPTCY WHERE DEBT IS NOT SCHEDULED.

An honored correspondent from the State of Washington sends us an advanced copy of the opinion of Justice Hanford, of the District Court of the United States for the Northern Division of the District of Washington, in the matter of Frank Monroe, bankrupt. The controversy was over an application by the Capital Brewing Company, a creditor, to vacate an order discharging the bankrupt from his debts, the creditor a'leging in its petition that it had not been listed in the schedule of creditors annexed to the petition filed by the bankrupt, and did not have notice or knowledge of the proceedings until after the time allowed for making proof of, debts had elapsed. Justice Hanford held that the creditor was not bound by the discharge, but bases his decision on the following peculiar ground:

"One of the fundamental principles in the jurisprudence of this country is that no man can be deprived of any legal right by a judicial proceeding to which he is not a party, and of which he has not received lawful notice, or had actual knowledge. Upon this principle, I hold that the bankrupt in this case has not obtained a discharge from any debt which was omitted from the schedule annexed to his petition which may be due to a creditor who did not have notice or knowledge of the bankruptcy proceedings in time to have proved his claim. Creditors who have not been notified of the proceedings in the manner prescribed by the bankruptcy law are not estopped from asserting their rights by reason of mere failure on their part to be diligent in discovering the insolvency of their debtors, or their resort to a court of bankruptcy."

We cannot agree with the learned judge on this statement of the law as a general proposition. In Pattison v. Wilbur, 12 N. B. R. 193, a case decided under the old bankrupt act, it was held that a discharge in bankruptcy will bar a claim, although the

residence of the creditor was incorrectly given on the schedule, and no notice was ever served on him, and he had no knowledge of the proceedings. So also, in Collier on Bankruptcy (3d Ed.), p. 189: "The failure of the creditor to prove his debt, if it is provable, does not prevent it from being released by the discharge; not even in those cases where it was omitted from the schedule of debts, and where the creditor was not served with a notice of the proceedings." See also to same effect the following authorities: Lamb v. Brown, 12 N. B. Rep. 522; Heard v. Arnold, 15 N. B. Rep. 543; Thurmond v. Andrews, 13 N. B. Rep. 157; Batchelder v. Low, 8 N. B. Rep. 571. The reason for this rule is, that under the old bankrupt act these creditors were supposed to be brought in by a general printed notice to creditors as in the case of deceased persons. It is well settled that in order to settle an estate or the title to property, debtors or claimants can be forced in on a general order of publication without actual notice or without actually scheduling or classifying their claims.

However, we agree with the decision of the court in this case, although not with the reason assigned for it. We think it clearly comes within the provisions of sec. 17a of the new bankrupt act. This section provides that the discharge shall affect all debts except those "not duly scheduled in time for proof and allowance, unless such creditor had notice of actual knowledge of the proceedings in bankruptcy." Under this provision it is evident that debts not duly scheduled in time for proof and allowance will not be barred by a discharge unless the creditor has notice or actual knowledge of the bankruptcy proceedings. But it is to be observed even under this section that if the creditor's claim is scheduled, neither notice or actual knowledge of the creditor is necessary.

NOTES OF IMPORTANT DECISIONS.

TRIAL AND PROCEDURE-FAILURE of DefendANT TO TESTIFY AS RAISING AN UNFAVORABLE PRESUMPTION.-Does the failure of the defendant to testify raise an unfavorable presumption against him. In the recent case of Bastrop State Bank v. Levy, 31 South. Rep. 164, the burden of proof was on the defendant to show that be bad made other deposits in a bank than bis passbook

showed. The defendant attempted to discharge this burden by all possible evidence save his own. The court said:

"While he [defendant] was present in the court during the trial, and assisted his counsel in the defense, he did not take the stand at all, and permitted the case to be closed without one word from him in rebuttal of the showing of indebtedDess made against him on behalf of the plaintiff. Judicial tribunals are established to administer justice between litigants, and the first and most important step to that end is the ascertainment of the truth of the controversies which come before them. It is only when the truth is ascertained that the law can be properly applied in the just settlement of disputes. Litigants owe the duty of assisting in every legitimate way in the elucidation of the truth. When a defendant can by his own testimony throw light upon matters at issue, necessary to his defense and peculiarly within his own knowledge if the facts exist, and fails to go upon the witness stand, the presumption is raised, and will be given effect to, that the facts do not exist. Board v. Trimble, 33 La. Ann. 1073; Nunez v Bay hi, 52 La. Ann. 1719, 28 South. Rep. 349. So, too, it has been recognized that where the means of proving the negative are not within the reach of the party alleging it, but it is within the power of the opposite party, if the negative be not true, to prove it so, the law will presume the proof of the negative averment from the fact that such opposite party withholds or does not produce the proof that the negative is not true. 2 Am. & Eng. Enc. (1st Ed.) p. 652, § 4. This would seem to be one of those cases where this principle or this doctrine might safely be applied, were there need to revoke it.

MASTER AND SERVANT-LIABILITY OF RAILROAD FOR NEGLIGENCE OF SUPERINTENDENT IN LENDING PUSH CAR.-The recent case of Erie Railroad Company v. Salisbury, 50 Atl. Rep. 117, shows how far the doctrine of respondeat superior can be carried under favorable circumstances. A railroad company placed a push car in the hands of the foreman of a gang of men to be used in traveling upon its road for the purpose of burning waste railroad ties. The foreman loaned it to an Italian to take away some of the ties for his own use. While the Italian was running it on the railroad track, the plaintiff, by his negligence, was injured while crossing the track. The Supreme Court of New Jersey held,-five judges dissenting!-that it was the duty of the foreman to use the push car with reasonable care to prevent injury to anyone lawfully on the track and to keep it under his own supervision until it was returned to the company, and that for the performance of that duty to the public the company was bound. The failure of the foreman to perform it was the failure of the company. The court said:

"The company cannot claim immunity on the ground that its servant violated the instructions

given to him, any more than it could set up in defense that an engineer had violated the express instructions given to him to ring the bell at a public crossing. The obligation to see that the duty is performed is cast upon the owner of the road. The safety of the public demands that the company shall be strictly held to its performance. If the engineer in charge of a train of cars, after he reaches his destination, should lend his train to a friend to take a run upon the road, could it be questioned that for any injury which resulted from its negligent use the company would be responsible? The relation of master and servant would not exist between the borrower and the company upon which to base its liability, but the action would rest upon the responsibility of the company for the observance of due care in the use of the train by its engineer. In Tuller v. Talbot, 23 Ill. 357. 76 Am. Dec. 695, the plaintiff was a passenger in defendant's stage coach. The driver of the coach placed the lines in the hands of a passenger, and while the passenger was driving the plaintiff was injured through his negligence. The court held the proprietor of the stage coach liable for the injury." See also Lukin v. Railroad Co., 15 Oreg. 220, 15 Pac. Rep. 641; Railroad Co. v. Derby, 14 How. 468; Sleath v. Wilson, 9 Car. & P. 607.

INSANITY KLEPTOMANIA AS A DEFENSE TO LARCENY.-Much discussion is being indulged of late by the courts as to whether the courts should endeavor to keep up with the medical profession on the subject of insanity. We attempted to enter the arena on this question, at least as to one phase of it,-that of "uncontrollable impulses,"-in a recent issue of the Journal. See 54 Cent. L. J. 270. The question, however, has again arisen in an equally interesting form in the recent case of State v. McCullough, 87 N. W. Rep. 503, in which the Supreme Court of Iowa held that what the medical profession call kleptomania was a weakening of the will power to such an extent as to leave the afflicted one powerless to control his impulse to appropriate the personal property of others, and that it was a good defense to an indictment for larceny independent of any question of avarice or greed. It appears that defendant had been three times before convicted of larceny and like offenses. It was shown that he possessed an inordinate desire for possessing himself of articles of personal property, with no regard to any special value they might have and for many of which he could have no use. A list of the property found in his possession is set out in the record. Many of the articles were stolen by him. It is too lengthy to give in extenso. We enumer. ate sufficiently to convey an idea of the character of the accumulation: 14 silverine watches, 2 old brass watches, 2 old clocks, 25 razors, 21 pair of cuff buttons, 15 watch chains, 6 pistols, 7 combs, 34 jackknives, 9 bicycle wrenches, 4 padlocks, 7 pair of clippers,

3 bicycle saddles, 1 box old keys, 4 pair of scissors, 5 pocket mirrors, 6 mouth organs, rulers, guns, bolts, calipers, oil cans, washers, punches, pulleys, spoons, penholders, ramrods, violin strings, etc. Several expert witnesses were introduced, who testified in response to hypothetical questions; and the effect of what they said was that defendant was insane, being afflicted with that form of mental disease known as kleptomania. The court in its instructions, after telling the jury they were to acquit the defendant if they found that the acts charged were caused by mental disease which dethroned his reason and judgment with respect to those acts and inevitably forced him to their commission, added the following: The practical question is whether avarice or insanity was the controlling force." The court held this latter clause to be error as setting off avarice and greed against insanity, as though these qualities indicated a sound mental condition.

TRIAL AND PROCEDURE-RIGHT OF COURT TO CRITICISE THE CHARACTER OR VALUE OF EXPERT TESTIMONY.-It Would sometimes seem not inexcusable on the part of trial judges to become out of patience with much of the subsidized expert evidence that is offered to bamboozle a jury on intricate scientific questions. This same feeling also arises where the "experts" bandy smart words or invent new terms which a jury must either believe or fail to consider. In the recent case of State v. McCollough, 87 N. W. Rep. 503, the trial court gave the following instruction to the jury on the value of certain expert evidence as to the character of kleptomania as a phrase of insanity:

Medical men have been called as experts by the defendant, to give an opinion as to the mental condition of the defendant at the time of the acts charged in the indictment. These opinions will be of greater or less aid to you in your deliberations, depending very much on the skill, knowledge, and experience of the witness, and his acquaintance with the subject under investigation. It will readily occur to you that this kind of evidence may be found quite reliable and satisfactory, or the reverse, and entitled to little, if any, consideration. It may further be remarked, too, in regard to evidence which is made up largely of mere theory and speculation, and which suggests mere possibilities, that it ought never to be allowed to overcome clear and well established facts. In this connection, I deem it proper to say that, while, perhaps, the profession of law has not fully kept pace with that of medicine on the subject of insanity, medical authorities have propounded doctrines respecting it as an excuse for criminal acts which a due regard for the safety of the community, and an enlightened public policy, must prevent juries from adopting as a part of the law of the land."

It was said by appellant that this was an unfair criticism of the expert testimony, and that the

jury should have been allowed to consider all the evidence, and to accord to the testimony of each witness such force and effect as they deemed proper, uninfluenced by reflections from the court tending to discredit it. The court said: "We have approved an instruction telling a jury the unsatisfactory character of expert evidence relating to handwriting. Whitaker v. Parker, 42 lowa, 585. But such evidence is of a peculiar character. One man is but little better qualified than another to give it, and the rule of the cited case cannot properly be applied to all opinion testimony. The value of opinion evidence of this nature is generally for the jury alone. Rog. Expert Ev. § 41. Usually the court must not, in its instructions, underrate or detract from the weight of such opinions. Eggers v. Eggers,57 Ind. 461; Cuneo v. Bessoni, 63 Ind. 524; Weston v. Brown (Neb.), 46 N. W. Rep. 826. Practically the whole defense in this case rested upon the opinions of experts. They were men of a high degree of skill and long experience in treating mental ailments. The entire subject is peculiarly technical and unfamiliar to the common mind. While the jury were to pass upon the weight of the opinions in the light of all the facts, they should have been permitted to take such opinions fairly, and consider them without detraction by the court. See Brush v. Smith, 111 Iowa, 217, 82 N. W. Rep. 467. It is true that in State v. Hockett, 70 Iowa, 446, 30 N. W. Rep. 742, an instruction identical in language with the one under consideration was approved, but we think that case can be distinguished from this; and inasmuch as this court, as now constituted, would not approve the reasoning there employed if the question were a new one, we are not inclined to apply the rule announced to any save a similar state of facts."

WHAT CONSTITUTES THE PUBLIC TO JUSTIFY A TAKING OF PROPERTY UNDER THE RIGHT OF EMINENT DOMAIN.

The eminent domain includes the right to take and receive any property within the jurisdiction of the sovereignty for a public purpose, use or benefit, with the means of enforcing the right upon compensating the Owner. The purpose of this article is to determine of what elements the entity for the use, benefit or purposes of which the property is taken. To ascertain of what proportion of the population of the state the public is composed, over what area and under what conditions the benefits must be distributed to have it considered that the public is the recipient. These benefits are clearly distinguishable and divisible into classes which may be denominated direct or indi