the enforcement of this right is extremely simple. Originally the process was only a bill in equity. But its principles have come to be applied in the courts of common law,226 and the party seeking his reimbursement may generally elect which of the remedies he will pursue.227 In the case of marine insurance the right is enforced by libel in a court of admiralty.228 The burden of proof is upon the party seeking the application of this doctrine to show that he is entitled to it.229 The action in courts of equity and admiralty should be brought in the name of the real party in interest.230 The assignee of a chose in action must sue at common law in the name of the original promisee, unless it be upon a negotiable instrument, in which case he may sue in his own name.231 But in those states which have adopted the reform codes of procedure, all suits should be brought in the name of the real party in interest.232 In whatever forum the action may be brought, the right will always be enforced with that equitable discretion which may "best serve the purpose of justice and the just intent of the parties."23

University of Missouri.

GOODWIN CREASON.

225 Mammoth Ins. Co. v. Hutchinson, 21 N. J. Eq. 107; Eaton v. Hasty, 6 Neb. 419; Talbot v. Wilkins, 31 Ark. 411; Meyer v. Mintonye, 106 Ill. 414.

226 Cole v. Bulman, 6 C. B. 184; Granite Bank v. Fitch, 145 Mass. 567; Hall v. Nash. & Chatt. Ry. Co., 13 Wall. 367; Stephens v. King, 84 Me. 291; Darst v. Thomas, 87 Ill. 222; Edgerly v. Emerson, 23 N. H. 555; Burs v. Beers, 24 N. Y. 178.

227 Bowers v. Cobb, 31 Fed. Rep. 382: Nipton v. The J. B. Williams, 42 Fed. Rep. 533; The Liberty, 7 Fed. Rep. 226.

229 Wilkinson v. Babbitt, 4 Dill. C. C. 207; Binford v. Adams, 104 Ind. 41; Griffith v. Townley, 69 Mo. 13; Hunnicutt v. Summy, 63 Ga. 586.

230 Amazon Ins. Co. v. The Iron Mountain, 1 Flippin, C. C. 616; The Liberty, 7 Fed. Rep. 226; Bliss Code Plead. (3d Ed.) sec. 73.

231 Bliss Code Plead. (3d Ed.), sec. 45. 232 Bliss Code Plead. (3d Ed.), sec. 45.

233 Robinson v. Leavitt, 7 N. H. 99; Danville Poor District v. Mantour Co., 75 Pa. St. 35; Houston Bank v. Akerman, 70 Tex. 315; Bacon v. Goodnow, 59 N. H. 415; Crawford v. Richeson, 101 Ill. 351; Creer v. Bush, 57 Miss. 575; Drake v. Paige, 127 N. Y. 562; Forest Oil Co.'s Appeal, 118 Pa. St. 138.

VACCINATION-REQUIREMENT OF SCHOOL

BOARD.

MATHEWS V. BOARD OF EDUCATION OF SCHOOL DIST. NO. 1, OF THE CITY AND TOWNSHIP OF KALAMAZOO.

Supreme Court of Michigan, July 10, 1901. Comp. Laws, § 4848, provides that parents who shall fail to send their children to school shall be subject to fine or imprisonment, or both. The gen. eral school law provides that the district boards shall make suitable rules for the government of schools. In 1894 the school board of district No. 1 passed a rule that no pupils should be admitted to

school who had not been vaccinated. Subsequently, while smallpox existed in the state, but not in district No. 1, and while there was no imminent danger of its existence, relator's children were refused admittance to school because not vaccinated. Held that, there being no statutory authority for the adoption of such a rule, the board exceeded their powers in adopting it.

Mandamus by George R. Mathews against the board of education of school district No. 1 of the city and township of Kalamazoo to compel defendant to allow relator's children to attend school without vaccination. From an order granting the writ, defendants bring the case to the supreme court by certiorari. Order affirmed. MOORE, J.: The children of the relator are of school age, in good health. They have not got the smallpox, nor have they been exposed to it. The law of the state makes it their duty to attend school, and it is the duty of the parent to send them. Comp. Laws, § 4847. In case he fails to do so, he may be subject to fine or imprisonment, or both, in the discretion of the court. Comp. Laws, § 4848. The effect of the rule adopted by the school board is to compel the vaccination of the child, or to subject him and the parents to the penalties of the law. The practical result, if this rule can be sustained, is to give the board of education the right to compel compulsory vaccination. It is said that the board does not undertake to compel vaccination, but it simply says that until the child is vaccinated it cannot attend school. We have already shown that it is made by law the duty of the child to attend school, and of the parent to send him; and as long as the broad rule adopted by the board exists, the child must be vaccinated, or it and its parents must be lawbreakers. If the rule was that during the prevalence of the smallpox in Kalamazoo the child could not attend school unless vaccinated, a very different result would be reached. These epidemics never last very long, and the parent and child might well say, if they desired, that they would absent themselves from school during the epidemic; and this could be done without their being lawbreakers. In the case of Duffield v. School District, 162 Pa. 476, 29 Atl. Rep. 142, 25 L. R. A. 152, the record shows that smallpox then existed in the school district. The school board had, because of this fact, and at the request of the board of health, adopted the rule requiring vaccination. A very different case than the case at bar. In Abeel v. Clark, 84 Cal. 226, 24 Pac. Rep. 383, the legislature itself passed a law requiring vaccination, and it was held to be within the police power; but it is not believed that a case can be founi where a board of education, under the general power conferred upon it, is held to have the power to pass a general rule shutting the schools against all children not vaccinated. The question has never before been raised in this state, but the principles involved are not new. In Potts v. Breen, 167 Ill. 67, 47 N. E. Rep. 81, 39 L. R. A. 152, the state board of health adopted a rule that no pupil should attend

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a public school unless vaccinated, and by their direction the school board excluded unvaccinated children from the school. The power given to the board of health was much greater than that conferred upon the Kalamazoo board of education. In holding that the board of health and the school board had exceeded their authority, the court said: "While school directors and boards of education are invested with power to establish, provide for, govern, and regulate public schools, they are in these respects no wise subject to the direction or control of the state board of health; and, as before pointed out, they have no authority to exclude children from the public schools on the ground that they refused to be vaccinated, unless, indeed, in cases of emergency, in the exercise of the police power, it is necessary, or reasonably appears to be necessary, to prevent the contagion of smallpox. Undoubtedly, also, children infected with or exposed to smallpox may be temporarily excluded or temporarily suspended; but, like the exercise of similar power in other cases, such power is justified by the emergency, and, like the necessity which gives rise to it, ceases when the necessity ceases. one would contend that a child could be permanently excluded from a public school because it had been exposed to smallpox, or that the school could be permanently closed because of the remote fear that the disease of smallpox might appear in the neighborhood, and that if the school should then be open, and children in attendance upon it, the public would be exposed to the contagion. And, upon the same line of reasoning, without a law making vaccination compulsory, or prescribing it, upon grounds deemed sufficient by the legislature as necessary to the public health, as a condition of admission to or attendance upon the public schools, neither the state board nor any local board has any power to make or enforce a rule or order having the force of a general law in the respects mentioned. However fully satisfied, by learning and experience, a board might be that anti-toxine would prevent the spread of diphtheria, no one would contend that a rule enforcing its use as a condition precedent to the admission of a child to the public schools would, as the law now is, be valid. It is a matter of common knowledge that the number of those who seriously object to vaccination is by no means small, and they cannot, except when necessary for the public health, and in conformity to law, be deprived of their right to protect themselves and those under their control from an invasion of their liberties by a practically compulsory inoculation of their bodies with a virus of any description, however meritorious it might be." In State v. Burdge (Wis.), 70 N. W. Rep. 347, 37 L. R. A. 157, the board of health, under its general powers adopted a rule excluding from the public schools pupils who had not been vaccinated. The school board undertook to carry out the rule. The court said: "The police power of the state is relied upon to

* * *

support the rule in question. This power has been defined in varying language, but of substantially the same general import. All laws for the protection of life, limb, and health, for the quiet of the person, and for the security of property,' fall within the general police power of the government. All persons and property are subjected to all necessary restraint and burdens, to secure the general comfort, health and prosperity of the state;' and it has been said that it is co-extensive with selfprotection, and is not inaptly termed the law of overruling necessity.' It is that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort and welfare of society." Tied. Lim. 2-5; Cooley, Const. Lim. 572; Redfield, C. J., in Thorpe v. Railroad Co., 27 Vt. 140, 62 Am. Dec. 625; Town of Lakeview v. Rose Hill Cemetery Co., 70 III. 192, 22 Am. Rep. 71; State v. Noyes, 47 Me. 189. As the police power imposes restrictions and burdens upon the natural and private rights of individuals, it necessarily depends upon the law for its support, and, although of comprehensive and far-reaching character, it is subject to constitutional restrictions; and, in general, it is the province of the lawmaking power to determine in what cases or upon what conditions this power may be exercised. As applied to the present case, the relator had a right, secured by statutory enactment, to have his children continue to attend the city schools in which they were respectively enrolled as pupils; and they, too, had a right to so attend such schools. Whether it be called a "right" or "privilege" cannot be important, for in either view it was secured to the relator, and to his children as well, by the positive provisions of law, and was to be enjoyed upon such terms and under such conditions and restrictions as the law-making power, within constitutional limits, might impose. There is no statute in this state authorizing compulsory vaccination, nor any statute which requires vaccination as one of the conditions of the right or privilege of attending the public schools; and, in the absence of any such statute we think it cannot be maintained that the rule relied upon is a valid exercise of the rightful powers of the state board of health. The state board of health is a creation of the statute, and has only such power as the statute confers. It has no common-law powers. To lawfully exclude the relator's children from the city schools for the cause relied on required such a change in the existing law as the legislature alone could make,—a change that should make vaccination of pupils compulsory, or at least prescribed it is a condition of the right or privilege of attending the public schools generally, or during the occurrence of certain emergencies, or upon the happening of certain contingencies or conditions in respect to the prevalence of smallpox. The powers of the state board of health, though quite general in terms, must be held to be limited to the enforcement of some statute

relating to some particular condition or emergency in respect to the public health; and, although they are to be fairly and liberally construed, yet the statute does not, either expressly or by fair implication, authorize the board to enact a rule or regulation which would have the force of a law changing the statute in relation to the admission, and the right of pupils of a proper school age to attend the public schools. It is not a question as to what the legislature might do under the police power, about requiring vaccination as a prerequisite to attending schcol; nor is it a question of whether the legislature could confer this power upon the school board. The board of education is a creature of the statute. It possesses only such power as the statute gives it. The legislature has said who may and should attend the public schools. It has nowhere undertaken to confer the power upon the school board to change these conditions by passing a general, continuing rule excluding children from the public schools until they comply with conditions not imposed upon them by the legislative branch of the government. In what I have said I do not mean to intimate that during the prevalence of diphtheria or smallpox, or any other epidemic of contagious disease, in a school district, the board may not, under its general powers, temporarily close the schools, or temporarily say who shall be excluded from the schools until the epidemic has passed; but what I do say is that the legislature has not undertaken to give them the power, when no epidemic of contagious disease exists or is imminent in the district, to pass a general, continuing rule which would have the effect of a general law excluding all pupils who will not submit to vaccination. I think the learned judge was right in saying the school board exceeded its power. The order of the court below is affirmed.

NOTE-Right of Boards of Health to Make Vacci nation Compulsory.-There has been much discussion over the right of boards of health to com pel the vaccination of school children and of other citizens during the prevalence of a smallpox epidemic, or even when there is no such danger at all. Although the authorities are not uniform, it may be safely affirmed that the decision in the principal case is correct,

Compulsory vaccination is evidently a gross interference of individual liberty and can be justified on only one ground-an "overruling necessity," which also is the only real justification of what is known as the police power. This "overruling necessity" must be a present emergency, in which action is necessary at once in the particular case to avoid impending injury, and not some future danger, not existing at the time, and which may or may not happen. And even in emergency cases, although no authorities have directly so held, it is believed that actual physical compulsion would not be justifiable. The only possible extent of legislation would be to thoroughly quarantine the man who refused to submit to inocculation. The constitutionality of compulsory vaccination has therefore not been determined. In fact, only three

dis

cases can be found which involves the constitutionality of such legislation in any form. In the case of Abeel v. Clark, 84 Cal. 226, 24 Pac. Rep. 383, the Supreme Court of California upheld the constitutional validity of a statute requiring that all children attending the public schools should be vaccinated. So also in Bissell v. Davison, 65 Conn. 183, 32 Atl. Rep. 183, 29 L. R. A. 251; Morris v. City of Columbus, 102 Ga. 792, 30 S. E. Rep. 850. On the general question of vaccination the authorities make one well recognized tinction. Independent of a direct legislative fiat, making vaccination' a condition precedent to the entrance of children into the public schools, a school board or a board of health has no authority to pro mulgate or enforce such a condition, where there is no overruling necessity or present emergency making such a regulation a reasonable exercise of the police power. Potts v. Breen, 167 Ill. 67, 47 N. E. Rep. 81, 39 L. R. A. 152; State v. Burdge, 95 Wis. 399, 70 N. W. Rep. 317, 37 L. R. A. 157, 44 Cent. L. J. 341: In these cases there was no present emergency whatever for the ruling of the board. Thus, in Potts V. Breen, supra, it was held that, in the absence of express authority of the legislature, a rule of the state board of bealth requiring the vaccination of children as a prerequisite to their attending the public schools is unreasonable when smallpox does not exist in the community, and there is no reasonable ground to apprehend its appearance. The doctrine of this case was reaffirmed in the case of Lawbaugh v. Board of Education, 177 Ill. 572, 52 N. E. Rep. 850. In cases, however, of present emergency, as, for instance, where an epidemic has broken out or is raging in the vicinity or in very close proximity as to reasonably threaten to spread itself, a regulation, either suspending the school for a time or suspending certain pupils who refuse to be vaccinated, will be justified and upheld. Duffield v. School District, 162 Pa. St. 476, 29 Atl. Rep. 742, 25 L. R. A. 152; Morris v. City of Columbus, 102 Ga. 792, 30 S. E. Rep. 850; State v. Board of Education, 21 Utah, 401, 60 Pac. Rep. 1013; Blue v. Beach (Ind. 1900), 56 N. E. Rep. 89, 50 L. R. A. 64; Bissell v. Davison, 65 Conn. 183, 32 Atl. Rep. 348. In the case of State v. Board of Education, supra, it was held that where no attempt was made on the part of the board of health to compel vaccination, but during an emergency of a smallpox epidemic, an option was given the pupil, who was liable to convey the disease into the schools, to be vaccinated or remain away from the schools until the danger from smallpox was past, the order is justified under the police power inherent in the state, and such power is delegated by statute. The court, however, said: "This holding must not be construed as empowering the board to require compulsory vaccination without the consent of the patient." A strong dissenting opinion by Baskin, J., is interesting as discussing the point that such discrimination amounts to compulsory vaccination, and that the board should close the school altogether if it believe an emergency exists and not make an unfair discrim. ination not warranted by statute.

Cases relating to regulation for the compulsory vaccination of citizens generally are not numerous. The only one really pertinent authority is that of In re Smith, 146 N. Y. 68, 40 N. E. Rep. 497, 28 L. R. A. 820, reversing 84 Hun, 465, 32 N. Y. S. 317. In this case the board of health of Brooklyn ordered every citizen to be vaccinated declaring a special emer

gency to exist, and "that any person refusing to be vaccinated should be immediately quarantined and detained in quarantine until he consents to such vaccination." The relator refused to obey the order, and the board quarantined his residence and place of business, refusing to permit anyone to enter or leave it. On habeas corpus proceedings the court of appeals ordered the release of the relator and held that authority to quarantine persons who refuse to be vaccinated but who are not infected with and are not shown to have been directly exposed to smallpox is not given by statute and was therefore unwarranted.

WEEKLY DIGEST.

Weekly Digest of ALL the Current Opinions of ALL the State and Territorial Courts of Last Resort, and of all the Federal Courts ACCOUNT-Multifariousness.- Where, in an action for accounting, the bill states several separate grounds for equitable relief, but they are so intermingled that all must be determined in order to settle the account, the bill is not multifarious.- Canon v. Ballard, N. J., 50 Atl. Rep. 178.

ACTION-Misjoinder.-Where one of two counts in a declaration fails to state a cause of action, an objection for misjoinder of causes of action falls.- Flint v. Hubbard, Colo., 66 Pac. Rep. 446.

ADVERSE POSSESSION-Municipality.- Adverse possession held not maintainable against a municipality. --Mobile Transp. Co. v. City of Mobile, Ala., 30 South. Rep. 645.

ADVERSE POSSESSION-Part Possession.-One holding part of a tract of land under a deed duly recorded cannot, by executing a deed to the whole tract, extend his holding to the balance of the tract never in actual por session, so that the statute of limitations will run in his favor.-Hill v. Harris, Tex., 64 S. W. Rep. 820.

APPEAL AND ERROR-Refusal of New Trial by Judge Not at Trial.-The rule as to reversal of grant of new trial only for abuse of discretion held not to obtain where application is heard by a judge who did not preside at the trial.-Sands v. Cruikshank, S. Dak., 87 N. W. Rep. 589.

ASSIGNMENT-Action at Law on Equitable Assign. ment.-An action at law may be maintained against a city on an order given on the city by a municipal contractor, though it constitutes an equitable assign. ment of a fund owing the latter.-Dickerson v. City of Spokane, Wash., 66 Pac. Rep. 381.

ASSIGNMENT Assignment to Attorneys.-Attorneys to whom claims of plaintiff's witnesses for fees had been assigned held to have no right of action thereon against defendants.-Flint v. Hubbard, Colo., 66 Pac. Rep. 446.

ASSIGNMENT FOR BENEFIT OF CREDITORS-Attacking Assignment.-A creditor of an insolvent cannot object that assignment is void, while asking to participate in the fund in the hands of the assignee.-Kerslake v. Brower & Thompson Lumber Co., Oreg., 66 Pac. Rep. 437.

ASSIGNMENT for BENEFIT OF CREDITORS-Compen. sation for Assignee.-Where the assignee refused to furnish any information as to the amounts actually realized by him from the sale of the assigned state, or as to disbursements actually made, he was not entitled to any allowance for his services.-Caumiser v. Humpich, Ky., 64 S. W. Rep. 851.

ATTACHMENT-Oppressive Levy.-The levy of an attachment for $76.74 and the probable cost of the proceeding upon five head of racing horses, valued at $1,225, was oppressively excessive.-Anderson v. Heile, Ky., 64 S. W. Rep. 849.

ATTORNEY AND CLIENT-Motion to Set Aside Order of Admission.-After order of admission has been made, motion to set such order aside will not lie. Proceedings for disbarment are the proper remedy.-Neff v. Kohler Mfg. Co. (Mo. App., No. 8374), decided at St. Louis, Nov. 19, 1901.

ATTORNEY AND CLIENT-Profits of Attorney. - Heirs may recover from an attorney of the ancestor's estate all profits made by him in dealing with its assets, though there was no actual fraud on his part.-Beale v. Barnett's Admr., Ky., 64 S. W. Rep. 838.

ATTORNEY AND CLIENT- Settlement With Client.Where judgment defendants settle with plaintiff in willful disregard of his attorneys' lien, they are liable to such attorneys for the amount thereof.-Flint v. Hubbard, Colo., 66 Pac. Rep. 446.

BAILMENT-Attachment.-Horses in possession of a trainer held not subject to attachment for the trainer's debts. Anderson v. Heile, Ky., 64 S. W. Rep. 849. BANKRUPTCY-Partnership Debt.-A debt of a partnership, although a preferred claim under the insolv. ency laws of the state, is not entitled to priority in bankruptcyjas against the individual estate of one of the partners. In re Daniels, U. S. D. C., D. R. I., 110 Fed. Rep. 745.

BANKRUPTCY-Preferences.- Bankr. Act 1898, § 57g, requires a creditor, before be will be allowed to prove his claim, to surrender all payments received after the bankrupt's insolvency, and is not limited to preferences received within four months prior to bank ruptcy. In re Abraham Steers Lumber Co., U. S. D. C., S. D.IN. Y., 110 Fed. Rep. 738.

BANKS AND BANKING-Withdrawing Certificate of Deposit. Where a depositors withdraws certificate of deposit before expiration of time limit, he waives interest.-Bank of Commerce v. Harrison, N. Mex., 66 Pac. Rep. 460.

BENEFICIAL ASSOCIATION-Benefits.-Under a beneficial association's constitution and by laws, held, that a husband of a deceased member, who had paid the funeral expenses, was entitled to the death benefit fund, and not the executor of deceased estate.Radient Temple No. 2, O. U. A., v. Piper, N. J., 50 Atl. Rep. 177.

BREACH OF MARRIAGE PROMISE-Illicit Relation of Plaintiff. In an action for breach of contract of marriage, evidence of plaintiff's illicit relations with men other than defendant, prior to and during her engag. ment, held admissible in mitigation of damages.Clark v. Reese, Tex. 64 S. W. Rep. 783.

BUILDING AND LOAN ASSOCIATIONS-Action Against Assignee.-In an action by the assignee of a building association against a stockholder to recover borrowed money, defendant was not entitled to credit by pay. ments of dues upon stock.-Columbia Finance & Trust Co. v. Swartz, Ky., 64 S. W. Rep. 743.

CARRIERS-Limiting Liability. — Stipulation in bill of lading that value of goods at place of shipment shall limit carrier's liability held against public pol icy. Southern Pac. Co. v. D'Arcais, Tex., 61 S. W. Rep. 813.

CARRIERS-Measure of Damages for Loss of Goods. -The measure of damages for loss of goods by the negligence of a carrier is the value of the goods at the place of destination.-Southern Pac. Co. v. D'Arcais, Tex., 64 S. W. Rep. 813.

CHARITY-Want of Trustee.-Where a will created a trust in perpetuity, which executors could not exe. cute, it was a charity, which equity will not permit to fail for want of a trustee. Jones v. Watford, N. J., 50 Atl. Rep. 180.

CHATTEL MORTGAGES - Priority of Attacking Cred. itor. The fact that the mortgagee consented that the surety in a forthcoming bond executed by the mortgagor to release the property from attachment might have a lien prior to that of the mortgagee, in the event he should be held liable on the bond, did not

CONTRACTS-Agreement not to Sue.- Where one prosecuted for unlawfully selling liquor to the prosecutor's minor son pleads guilty and pays a fine, in consideration of the prosecutor's promise not to sue civil y, the contract is unenforceable as against public policy. Lucas v. Johnson, Tex., 64 S. W. Rep. 823. CONTRACTS-Loan.- A consent by a workman that their wages may be retained by the paymaster for 20 days beyond the usual pay day held not a loan of the sums due to the paymaster. - Colorado School Land Leasing & Mining Co. v. Ponick, Colo., 66 Pac. Rep. 458. CONTRACTS- Validity. A contract granting the privilege of selling family rights and agencies of a washing machine held not to violate public policy.Rush v. Broussard, Miss., 30 South. Rep. 635.

-

CORPORATIONS-De Facto.-Evidence that an alleged corporation is a de facto corporation is sufficient proof of its corporate existence to sustain a prosecution against its treasurer for the embezzlement of its funds.-People v. Ward, Cal., 66 Pac. Rep. 372.

CORPORATIONS Service. In a personal action against a foreign corporation, which do not do business within the state, service upon an officer or agent temporarily within the state is not a good service on the corporation.-Conley v. Mathieson Alkali Works, U. S. C. C., S. D. N. Y., 110 Fed. Rep. 730.

COSTS-Appeal.-Plaintiff in a bill by partner for relief, withdrawing after evidence is heard, heid chargeable with costs of appeal. Markle v. Wilbur, Pa., 50 Atl. Rep. 209.

COSTS-Motion for Additional Security.-A request for additional security for costs, made after a number of witnesses have been examined, will be denied, where it appears that plaintiff is a poor man, and that such an order would be equivalent to a nonsuit. -Pritchard v. Henderson, Del., 50 Atl. Rep. 217.

COURTS Jurisdiction.-The fact that the necessary parties were before a court of equity did not give it jurisdiction in proceedings to enjoin trespass and waste in a mine located in a foreign jurisdiction.Lindsley v. Union Silver Star Min. Co., Wash., 66 Pac. Rep. 382.

CRIMINAL LAW-Definition of "Reasonable Doubt." -A reasonable doubt is not a vague, whims. ical, or merely possible doubt, but such a doubt as intelligent, rersonable, and impartial men may honestly entertain after a careful examination and conscientious consideration of all the evidence.-State v. Deputy, Del., 50 Atl. Rep. 176. CRIMINAL LAW - Proof of Corpus Delicti.-A convic. tion in a criminal case will not be reversed by reason of the admission of evidence to connect the defendant with the crime charged, before proof of the corpus delicti.-People v. Ward, Cal., 66 Pac. Rep. 372.

CRIMINAL TRIAL-Proof of the Corpus Delicti.-Proof of the corpus delicti involves two things: First, a crim. inal act; second, the defendant's agency in the production of the act.-State v. Knolle (Mo. App. No. 8197), decided at St. Louis, Nov. 19, 1901, not yet reported.

tent to wound the feelings of, or humiliate anothe substantial damages may be given for mental suffering entailed thereby.- Hickey v. Welch (Mo. App. No. 8273), decided at St. Louis, Nov. 19, 1901.

DAMAGES-Injuries to Mind.-In an action by a father for personal injuries to a son, expert testimony as to injuries to the mind is admissible.-Birkel v. Chandler, Wash., 66 Pac. Rep. 406.

DEATH BY WRONGFUL ACT-Action by Representa tives. Comp. Laws 1897, § 10,427, and How. Ann. St. § 7397, do not give a double remedy to representatives of a deceased person killed by the negligence of another; the recovery being limited to the latter act where the person lives for a short time after the injury.-Dolson v. Lake Shore, etc. Ry. Co., Mich., 87 N. W. Rep. 629.

DIVORCE-Charging Other Offenses as Indignities.The fact that the acts charged as indignities are such as might be classed under other grounds for divorce, is no objection to their being set out as indignities, provided they are of a sort to render the plaintiff's condition intolerable.- McCann v. McCann (Mo. App., No. 8372), decided at St. Louis, Nov. 19, 1901.

DOWER-Overdue Discharge.- Proceedings to sub ject land to overdue payments of dower charges should be brought, not before the clerk or by motion, but by an action on the claims.-In re Hybart's Estate, N. Car., 39 8. E. Rep. 779.

EJECTMENT-Title Papers as Evidence.-It was not error, in ejectment, to allow public statutes and grants constituting a municipality's title papers to be read in evidence.-Mobile Transp. Co. v. City of Mobile, Ala., 30 South. Rep. 645.

EMBEZZLEMENT-Demand for Returns of Property. -A demand for the return of money embezzled is not an indispensable element to the establishment of the crime.-People v. Ward, Cal., 66 Pac. Rep. 372.

EMINENT DOMAIN-Compensation for Injury to Light and Access.-Under Const. art. 1, § 16, compensation must be made to an owner of abutting property for damage to his rights, light, and access, etc., arising from a street railway company's erection of a trestle in the street.-State v. Superior Court of King Co., Wash., 66 Pac. Rep. 385.

ESTOPPEL-Guarantor.-In an action against a guar antor, receipts issued by the creditor to the debtor held not relied upon by the guarantor, so as to estop the creditor from suing him for the unpaid balance of the debt guarantied.-Atkins v. Payne, Pa., 60 Atl. Rep. 158.

EVIDENCE

Church Record of Baptism.-Where neither the father nor mother was present at the baptism, the church record thereof, containing the date of the birth of the Infant, is not admissible to prove such date. Hickey v. Morrissey, N. J., 50 Atl. Rep. 183.

EVIDENCE-Expert.-A question asked a witness, not a testamentary witness or an expert, as to what sort of woman the testatrix was mentally, held incompetent.-Pritchard v. Henderson, Del., 50 Atl. Rep.

217.

EXECUTORS AND ADMINISTRATORS- Publication of Notices of Appointments.-Under an order, pursuant to Pub. St. ch. 132, § 1, directing an administrator to publish notice of his appointment once each week for three weeks, the publication three times in one week and once the following week is insufficient, and the limitation of actions of chapter 136, § 9, does not at tach.-Slattery v. Doyle, Mass., 61 N. E. Rep. 204. EXECUTORS AND ADMINISTRATORS - Reimbursement from Real Estate.-Executors using money to pay debts which should have been paid legatees, and surcharged with claim of legatees, held entitled to reimbursement from property devised subject to the debts. -In re Lefevre's Estate, Pa., 50 Atl. Rep. 185. EXECUTORS AND ADMINISTRATORS Right to Sell Property.-Under Code, § 1446, an administrator can