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these cases tend to establish the doctrine that a Sta, may regulate within its own jurisdiction any matte relating to commerce among the States, until congress shall see fit to exercise the power conferred upon it by the constitution to regulate commerce among the States. The court, however, in the principal case, makes a distinction between cases in which the power of the State is exercised over matters which in their nature are local, as the navigable creek, the river, the bridges, or the wharf, and cases in which the State law is general and purports to operate over the whole State, or to affect interests which are general and may well exist in any part of the State. On the former class of subjects, the State may well legislate, on the latter it cannot, even if congress has not itself, seen fit to exercise its constitutional authority over the subject.-[EDITOR CENT. L. J.

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UNITED STATES WISCONSIN

Principal and Agent Consignor

1. AGENCY Commission Merchant Separate Accounts Charges by Broker for Printing-Usage of Commission Merchonts.-Where the plaintiff, a commission merchant, receives consignments from the defendant, a manufacturer, who is the owner of three different mills, run under three different names, one being carrfed on in the name of defendant, the plaintiff being ignorant that the three mills are owned by the defendant, and the accounts of the three concerns being kept separate, in an action brought by the plaintiff to recover the balance of an account with the mill run under the name of the defendant, where the answer is a general denial and payment, the defendant will not be allowed to show that a balance is due him upon the account between plaintiff and another of the mills, which should be credited him in this suit, and such balance can only be availed of by way of set-off; and defendant cannot show that there were in the plaintiff's hands goods from the mill run in defendant's name which were not included in the account sued on. In an action against the defendant, a manufacturer, by a commission merchant, to recover a balance due for advances on manufactured goods, the latter will be allowed to charge in his account for printing the goods, it appearing that this was done under the usage of commission merchants, and was a necessary charge. Talcott v.

Smith, S. J. C. Mass., Oct. 22, 1886; 8 N. E. Rep. 413.

2. ASSIGNMENT FOR BENEFIT OF CREDITORSValidity - Evidence Fraud Effect and Construction-Rights and Liabilities of Assignee— New Trial-Matters Presented to Jury-Verdict Warranted by Evidence.-The employment of the assignor by the assignee, to act as clerk and assist in the sale of assigned property, is not conclusive evidence of fraud. Where an assignee of a stock of merchandise continued the business, and made additional purchases of goods, which were added to and intermingled with the assigned property with the assent of creditors, who, after notice of the assignment and his purpose so to continue and manage the business in the execution of his trust, continue to make sales to such assiguee for such purpose, and to accept dividends from him on both old and new accounts, held, that such creditors, unless actually misled without fault or laches on their part, were bound by the assignment, and could not thereafter attach the assigned property for the individual indebtedness of the assignor or assignee. Held, also, that, subsequent to an attachment of the assigned property, the assignee might sell and transfer the title to the same, and that the vendees thereof might test the validity of the attachmeut in actions against the sheriff for the conversion of the property. Evidence held sufficient to support the finding, necessarily includes in the verdict that the possession of the assigned property was immediately delivered to and remained in the assignee. Noyes v. Beaupre, S. C. Minn., Oct. 13, 1886; 30 N. W. Rep. 126.

3. CARRIERS-Of Passengers - Connecting Railroads-Through Ticket-Liability of First Road -Liability of Each Road-Negligence-Evidence of Through Contract - Relation of Roads. While a railroad company cannot be compelled to transport beyond its termini, it is well settled that it may lawfully contract to carry passengers and property over its own and other lines to a destination beyond its route, and when such a contract is made it assumes all the obligations of a carrier over the connecting lines as well as its own. The sale of a through ticket, for a single fare, by a railroad company, to a point on a connecting line, together with the checking of the baggage through to the destination, is evidence tending to show an undertaking to carry the passenger and baggage the whole distance, and which, in the absence of other conditions or limitations, and of all other circumstances, will make such carrier liable for faithful performance and for all loss on connecting lines, the same as on its own. Each carrier is liable for the result of its own negligence, and, although the first carrier may have assumed the responsibility for the transportation to a point beyond its own route, any of the subsequent or connecting lines to whose negligence the loss or injury can be traced, will also be liable to the owner. The sale of a through ticket over the route formed by the connecting lines of several railroad companies, and the checking of baggage to the end of the route, without other evidence of the relations between the companies, or the basis upon which through business was done by them, fails to show such a community of interest as would make them partners inter sese, or as to third persons; nor will such action alone make the last carrier liable for the negligence of the contracting carrier, or of

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any other carrier in the combination. Atchison, etc. Co. v. Roach, S. C. Kas., Nov. 5, 1886; 12 Pac. Rep. 93.

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Railroad-Negligence EvidenceTrial-Interrogatories to Jury — Presumption— Degree of Care Required-New Trial-Excessive Damages. In an action by a passenger against a railroad company to recover for injuries resulting from the breaking down of a bridge, it is competent to prove the rate of speed at which the train rar upon the bridge. It is not error to reject in terrogatories addressed to a jury which seek to elicit a conclusion of law. The presumption of negligence arising from an injury to a passenger by the falling of a bridge is not rebutted by evidence that the carrier was using the means and appliances ordinarily used, without also showing that they were sufficient for the purpose, were properly used, and were without known or discoverable defects. Carriers of passengers do not warrant the safety of passengers, but they are held to the highest degree of practical care. Where nothing appears to induce the belief that the jury must have acted from prejudice, partiality, or other improper motive, their verdict will not be disturbed. Louisville, etc. Co. v. Pedigo, S. C. Ind., Oct. 12, 1886; 8 N. E. Rep. 627.

5. CONTRACT-Entire Contract—Subscription for Publication "in Ten Portfolios"-Part Performance-Mistake-Waiver of Defendant's Right— Evidence-Statements of Agent.-A contract to "subscribe for one copy of the Art Treasures of America, in ten portfolios, at $15 each, as published" is an entire contract; and where the defendant has accepted two of the portfolios, but refused to take the remainder, in an action against him for the breach of his contract, evidence offered by him for the purpose of avoiding the whole contract is inadmissible, unless he restores the portforlios already received, and rescinds the contract in toto. Where a contract is sought to be avoided on the ground of a mistake made in its performance, the defendant will be held to have waived his right to avail himself of such defense, where the mistake was known to him, but no notice was given to the plaintiff of the mistake, and the defendant did not indicate that he intended to rely upon such defense until the trial of an action brought for breach of the contract. Where the terms of a written contract provided that certain books, which the defendant agreed to purchase, should contain a special title bearing the name and address of the defendant, and the defendant, at the trial of an action brought for breach of the contract, offered evidence of the statements of the plaintiff's agent, with whom the contract was made, as to the place where the defendant's name would appear on the books, but did not offer evidence that the books, in respect to the title and printing, were not in conformity with the agent's statements, held, that the evidence was inadmissible. Barrie v. Earle, S. J. C. Mass., Oct. 23, 1886; 8 N. E. Rep. 641.

6. CRIMINAL LAW-Banks and Banking-Receiving Deposits after Knowledge of Failing Condition of Bank-Statutory Penalty Not Incurred by Private Banker.-The provisions of § 1350, R. S. Mo., 1879, to the effect that if certain enumerated officers of any banking institution, doing business in that State, shall receive deposits of money, or assent to the creation of debts of such bank,in consideration, etc., of which indebtedness, any money

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I shall be received in such bank,"after he shall have knowledge of the fact that it is insolvent or in failing circumstances, he shall be deemed guilty of larceny," etc., applies only to those engaged in conducting an incorporated bank, and not to a person engaged in conducting a private bank. State v. Kelsey, S. C. Mo., Nov. 15, 1886.

Homicide-Murder - Confession of Prisoner Formerly Convicted of Same MurderCopy of Confession for Defense Not Necessary— Jury - Criminal Case Challenging Juryman after Passing List—Argument of District Attorney-Matters in Record.-A prisoner, after conviction of murder and while under imprisonment, made a voluntary confession implicating another party in the murder: Held, upon the trial of the latter, that the district attorney was under no obligation to furnish the defense with a copy of the confession, and his refusal to do so was not error. After having made seven strikes, and expressed himself as willing to take the jury, the district attorney was allowed by the trial court to strike from the list the name of a juryman upon the list when he so waived his strike, the district attorney being entitled to twelve peremptory challenges by § 4690, R. S. Wis. Held, that the order of challenging jurors was within the discretion of the trial court, in the absence of any statutory regulation or rule of court, and that there was no abuse of discretion in allowing the challenge. Upon the trial of a person implicated in a murder by the confession of a prisoner formerly convicted of the same murder, the district attorney, in his summing up referred to what had been testified to and found by the jury on the trial of the party who made the confession: Held, that the matters referred to were not outside of the record, some of the witnesses having been sworn on both trials, and some of the evidence taken upon the former triai having been used to impeach the testimony on the latter trial. Santry v. State, S. C. Wis., Nov. 3, 1886; 30 N. W. Rep. 226.

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Manslaughter-Furor Brevis -Appeal - Discretion of Trial Judge - Request to Discharge an Accepted Juror. Where the prisoner's evidence shows that, after a conflict with the deceased, which left him paralyzed and unresisting, the prisoner "let go" of him, and went after and obtained his axe, neglecting to use a knife which lay at hand on the ground, and ended his helpless opponent's life therewith, such action cannot be held to be unpremeditated and prompted by the frenzy engendered in the struggle to reduce the crime to manslaughter, but shows such premeditation and design to kill as will amount to murder. A request to discharge a juror, made after he has been accepted and sworn, but before evidence has been given in a criminal case, is within the discretion of the trial judge, and the appellate court will not interfere, in the absence of evidence of abuse of such discretion. People v. Beckwith, N. Y. Ct. App., Oct. 26, 1886; 8 N. E. Rep. 662.

Obstructing Justice - Assault on Officer -Knowledge that Person Assaulted was an Officer. It is not erroneous for the court, at the trial of certain defendants for assault upon a police officer of a town, to instruct the jury that they might infer from the evidence that the officer was duly appointed, and in the lawful execution of his office, and that the defendants knew that he

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was an officer, and acting as such, where the evidence shows that the latter was appointed a special police officer by the selectmen, among other things, for the surveillance of a certain house, known to be a place of common resort and frequented by the defendants, who had long lived in the town, knew the officer and were known by him, and that the defendants were watching for his appearance, and when he appeared accosted him, asking him if he had "business there," and then assaulted him, wresting away his "billy." Commonwealth v. Sawyer, S. J. C. Mass., Oct. 22, 1886; 8 N. E. Rep. 422.

Preliminary Examination - Police Court Reading Testimony - Objections to Testimony. In taking evidence upon a preliminary examination in a police court, the testimony should be read over to the witnesses in defendant's presence, before being signed by them; but where this has not been done, and no objection has been made to the information thus taken until the examination of the witnesses in court, the prisoner cannot be heard to complain of it. People v. Gleason, S. C. Mich., Nov. 11, 1886; 30 N. W. Rep. 210.

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Venue-Statement of Continuance on Ground of Absence of Witnesses, When Erroneously Refused-Confidential Communications between Attorney and Client-Attorney Cannot State Kind of Money Client Paid as Retainer.Where the indictment omits to aver in what State the crime is committed, but the State is properly named in the caption, the venue is sufficiently alleged under § 1813, R. S. Mo., 1879. Where defendant made application for a continuance, and has a subpoena issued and directed to the sheriff for a witness in his behalf, and in his affidavit stating that he had issued it as soon as he ascertained where such witness was to be found, and also relating the facts he expected to prove by him, which, if true, would tend to establish defenant's innocence, and where the prosecuting attorney admits that the witness, if present, would testify to the facts alleged in the affidavit, the trial court errs in overruling the defendant's motion for a continuance. Where defendant is charged with stealing $160 "of current silver coin of the United States," it is error to permit defendant's attorney to testify as to the kind of money defendant paid him as a retainer, viz.: "$45 in silver and $5 in gold," this fact being confidential between the attorney and client. The reason of the rule protects the client from a disclosure by his attorney, not only of what he has communicated to his attorney, orally or in writing, but of any information derived by the attorney from being employed as such, any information which he has derived from his client, "whether by words, signs or acts." State v. Dawson, S. C. Mo., Nov. 15, 1886.

12. DEED-Description-General and ParticularFixed Monuments.-All parts of a description in a conveyance should be made to stand and harmonize, if possible; but if all parts do not harmonize the general description must give way to a particular one. A line described as running from a fixed monument, on the edge of a branch, up the same, by a single course, to another fixed monument on said branch, construed to follow a straight line called for from monument to monument, and not to follow the windings of the branch, unless the words "the several courses thereof," or "the general course being," or some such lan

guage, be used. In such description, the words "up the branch," by a single course, means running in that direction on a straight line. Wharton v. Brick, S. C. N. J. Nov. 10, 1886; 6 Atl. Rep. 442.

Assess

13. EQUITY - Removing Cload of Title ment for Township Drain.-Where a bill is filed to remove a cloud on the title alleged to have been created by the return of unpaid assessments on the land, made for the expense of clearing out a township drain, and only avers that it was never done "according to any legal form or rule," without showing just what was done by the drain commissioner, to enable the court io determine the precise injury done and complained of, the bill will be dismissed. Barker v. Vernon, S. C. Mich., Nov. 1, 1886; 30 N. W. Rep. 175.

14. ESTOPPEL- Appellate Courts - Re-Examination of Points Formerly Decided-Appeal-Jurisdiction-Leave to Answer Over.-The legal propositions which have been decided in a former appeal, whether correctly decided or not, are the law of the case, and will not be re-examined on a subsequent appeal in that case. It is not properly within the appellate jurisdiction of the supreme court, if it sustains a demurrer, to give leave to answer over. In case, therefore, this court makes no final disposition of the case, but remands it to the court below, it will be open for that court to determine, in the first instance, whether the defendant shall be permitted to answer or not. Powell v. Willamette etc. Co., S. C. Oreg., Oct. 20, 1886; 12 Pac. Rep. 88.

15. EVIDENCE-Deposition-Witness - Refreshing Memory-Contemporaneous Paper-Trial - Submission -Jury Question of Fact.-It is not a valid objection to a deposition that the witness, in his testimony, refers to a contemporaneous paper, book, or memorandum made by himself, and not in evidence, if the reference be made as a means of refreshing his memory, or as enabling him to speak with accuracy, on the subject-matter under investigation. It is error to submit to the jury a question of fact which is conclusive in the case, upon mere conjecture, where there is no evidence from which the jury could have inferred the fact. First Nat. Bank of Du Bois City v. First Nat. Bank of Williamsport, S. C. Penn., Oct. 4, 1886; 6 Atl. Rep. 366.

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Action for Money Collected by BankProtest and Non-Payment of Drafts - Drafts must be Produced-Banks and Banking-Collection of Drafts—Responsibility for Correspondent— Drafts Paid to Correspondent Failure of Correspondent. In an action against a bank for moneys received by it to plaintiff's credit, where the defense is made that drafts drawn to defendant's order by another bank for the money had been protested and were unpaid, held, that it was error to admit evidence of the protest, non-payment, and return of the drafts without first producing the drafts, or accounting for their absence. In an action against a bank for moneys received to plaintiff's credit, where it is shown that the defendant bank was employed to collect certain drafts, and it is shown that the money was paid to its correspondent, a bank in the town where the drawee lived, and the correspondent forwarded a draft for the money to the defendant, it devolves upon the defendant to show that, through no fault

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or want of diligence on its part, the draft was not paid. Where a bank is employed to collect drafts drawn upon a party at a distance, it is responsible for the failure or dishonesty of its correspondent, a bank selected by itself, to whom the draft had been paid by the drawee. Simpson v. Waldby, S. C. Mich. Nov. 4, 1886; 30 N. W. Rep. 199.

Intoxicating Liquors - Application for License-Handwriting-Competency of WitnessWeight of Evidence-Lease Signed by Defendant-Comparison.-Upon the trial of a complaint charging the defendant with the sale of intoxicating liquors upon certain premises, applications by the defendant for leave to sell intoxicating liquor at the premises described in the complaint are competent, as tending to show that he kept and main tained the premises at the date of the applications, and at the time of the complaint, if the jury are satisfied that there has been no change in the meantime. If a witness is familiar with the handwriting of the defendant, and testifies that he thinks that certain signatures are those of the defendant, the fact that on cross-examination, he states that he cannot swear that they are those of the defendant, goes to the weight, and not to competency, of his evidence. Where it is sought to be proved that certain signatures are those of the defendant, it is competent to introduce, for the purposes of comparison, a lease, the signature to which the defendant admits was signed by him. Commonwealth v.Andrews, S. Jud. C. Mass., Nov. 4, 1886; 8 N. E. Rep. 643.

Railroad Accident Defect in Road -Trial-Judge Commenting on Facts to Jury-United States Courts-Instruction of CourtMisleading Jury-Life and Annuity Tables in Actions For Personal Injury-Measure of Damages. In an action against a railroad corporation for personal injuries, there being evidence tending to show that the accident was caused by a wornout rail, evidence as to the condition of the track, and that the rails had been in use a great many years, is admissible as tending to show that a worn-out rail was the cause of the accident, and that defendant had neglected to repair the defect. In the courts of the United States, as in those of England, the judge, in submitting a case to the jury, may, in his discretion, comment upon the evidence, call their attention to parts of it which he deems important, and express his opinion upon the facts; the statutes of the State forbidding judges to express any opinion upon the facts, not controlling the powers of the United States court. Where, in an action for personal injuries, it is a controverted question whether the injury is temporary or permanent, it is error to instruct the jury on the assumption that the injury will be permanent. In an action for personal injuries, while standard life and annuity tables, showing, at any age, the probable duration of life and present value of a life annuity, are competent evidence, the rules derived therefrom are not the absolute guides of the judgment and conscience of the jury; and an instruction directing the jury to ascertain the loss of income by the use of such rules, the charge nowhere suggesting that the jury are at liberty to ascertain such loss according to their own judgment, is erroneous. Vicksburg, etc. Co. v. Putnam, S. C. U. S., Oct. 25, 1886; 7 S. C. Rep. 1.

19. FRAUDULENT CONVEYANCE-Action to Set

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Pleading Requisites of Complaint Injunction-Procedure - Dissolution—Injunction Denied--Receiver.-The holder of a second chattel mortgage, seeking to set aside a prior mortgage, must show that he has been defrauded by the taking of his security, relying on the fact that no prior lien existed upon the goods, and a further showing of the fraudulent character of such mortgage, and that he did not receive his mortgage as a second incumbrance, with actual knowledge of the first. Where an injunction has been granted on a complaint on information and belief, if it is fully denied in the answer, and the defendant is responsible, the injunction must be dissolved. The fact that a portion of the debt secured by a chattel mortgage which a complainant seeks to set aside as fraudulent is for the individual debt of one of the firm giving the chattel mortgage, will not support an injunction, or the appointment of a receiver, the alleged fraud not being otherwise shown. Caulfield v. Curry, S. C. Mich., Nov. 11, 1886; 30 N. W. Rep. 191.

No Participation in by GrantorWhether Grantor Indebted or in Failing Circumstances Immaterial-Valid Against Subsequent Purchaser With Knowledge of Former Conveyance. In an action of ejectment, where it is shown that the defendant has received his conveyance by general warranty deed, and who assumed the payment of the grantor's debts, with full knowledge, at the time of the existence of other recorded deeds of the same property to the plaintiffs, though it appears that the purpose of which conveyances, on the part of the grantor, was to hinder and delay his existing creditors but not subsequent ones, yet, in the absence of evidence that the plaintiffs were parties or privies to any fraud in the execution of the deeds to them, it is immaterial whether at the time of the execution of their deeds, the grantor was indebted or in failing circumstances, and the plaintiffs are entitled to recover possession of the lands. Bonney v. Taylor. S. C. Mo., Nov. 15, 1886.

21. INSURANCE-Life Insurance-Representations— Previous Occupation of Assured Equivocal Question in Application-Instruction to JuryTrial-Policy — Breach of Warranty - Directing Verdict-Preponderance of Proof.-In an action upon a life insurance policy it appeared that the assured, in his application, to the question whether he had been engaged in or connected with the manufacture or sale of any beer, wine, or intoxicating liquors, had answered, "No," and the uncontradicted evidence showed that he had kept a hotel, and sold wines and liquors in bottles to such of his guests as desired, but kept no bar, held, that it was error to leave it to the jury to say whether the sales of liquors made were sales at all within the meaning of the contract, and that a nonsuit should have been granted for breach of warranty by the assured. In an application for life insurance the applicant was required to answer the question: "Is he now or has he been engaged in or connected with the manufacture or sale of any beer, wines, or other intoxicating liquors?" In an action upon the policy the jury were impliedly authorized to find that the question was equivocal, because not capable of a direct and positive answer. Held, that the instruction of the court was misleading; the question not being equivocal. Heid, further, that it was error for the court to refuse to charge

that the question could have been truthfully answered in the affirmative, if the assured had been connected with the sale of liquor. In an action upon a life insurance policy, where it appeared that the assured, in his application for insurance, in response to questions by the company, had falsely represented his business and occupation, held, that it was error for the court to refuse to direct a verdict for the defendant. If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, it is the duty of the court to direct a verdict, and not to leave the question for the jury, merely because there is a scintilla of evidence in support of a proposition. Dwight v. Germania, etc. Co., N. Y., Ct. App. Oct. 12, 1886; 8 N. E. Rep. 654.

22. LANDLORD AND TENANT-Contract for Use of Store - Rent Оссирапсу.- Where A, by an agreement in writing, sells to B a stock of goods, and agrees to let him have the possession of the building in which they are situated until the store owned by him, in process of construction, is completed and ready for business, for a certain rental, payable at a specified time, B is entitled, by virtue of the contract, to the possession and use of the building, until the store is completed, for no more rent than the amount mentioned in the agreement, without reference to the time of occupancy. D'Arcy v. Martyn, S. C. Mich., Nov. 11, 1886; 30 N. W. Rep. 194.

and Abusive Treatment-False Charges of Infidelity Libel - Demurrer. - "Extreme cruelty," as the cause for divorce in the act of 1883, means "personal violence," intentionally inflicted, so serious as to endanger "life, limb or health," orto create reasonable apprehensions of such danger. Whatever treatment is proved, in each particular case, to seriously impair, or to seriously threaten to impair, either body or mind, endangers "life, limb or health," and constitutes "cruel and abusive treatment" the sixth cause for divorce in that act. The false charge of infidelity is not legal cruelty, but in a given case may be proved to so operate. A libel for divorce, charging specific acts of extreme cruelty, or cruel and abusive treatment, averred to seriously impair, or to seriously threaten to impair, "life, limb or health," is sufficient on demurrer. The averment in a libel for divorce, that the conduct specifically charged impaired or seriously threatened to impair, health, is sufficient on general demurrer, without particularly stating how the health was impaired. Holyoke v. Holyoke, S. C. Me., Oct. 14, 1886; 7 East. Rep. 546.

24. MASTER AND SERVANT-Injuries on MachineCorporation not Obliged to Fence Machine-Exceptions-Instructions-Contributory Negligence -Trial-Charge upon Facts-Peculiarly Dangerous Machine-The Risks of His Employment.— A manufacturing corporation is not bound to fence in a machine used in their business, where the machine is not of a peculiarly dangerous character, and is not liable for personal injuries caused by the machine to an employee who was obliged to pass the machine in going to his work, and to whom suitable instructions had been given, having reference to his age and capacity, so as to enable him to understand the dangers of the employment in which he was engaged. Neither is the corpora

tion liable for injuries because the machine might have been placed in a different or less dangerous position. Evidence that a gate might have been placed in front of the machine at slight expense is immaterial. Exceptions to the judge's charge will not be sustained, unless it is made to appear that there is some substantial error in the charge which misled the jury; and where there was evidence that the plaintiff was playing about the machine on which he was injured, a statement in the charge that, if the jury found that to be the fact, the plaintiff was guilty of contributory negligence, which would prevent him from recovering, is not open to objection. It is not charged upon the facts for a judge to state in his charge that a machine, on which the plaintiff was injured, was not a peculiarly dangerous one, the fact being self-apparent. An employee of a manufacturing corporation, who has been properly instructed as to the use of a machine upon which he is set to work, is supposed to undertake the risk of his employment, and cannot recover for injuries resulting from use of the machine, and the company is not obliged either to fence the machine, or place it in a less dangerous part of the room. Where exceptions are taken to a judge's charge, but the exceptions are not defined, and the errors claimed to exist are not pointed out to the judge, that he may have an opportunity to correct any inaccuracies in his expression, they cannot be sustained. Rock v. Indian Orchard Mills, S. J. C. Mass., Oct. 22, 1886; 8 N. E. Rep. 401.

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Liability of Master for Negligence of Fellow-Servant - Negligent Habits - Pleading. — Where a servant has knowledge of the negligent habits of a fellow-servant, and enters the employment of the common master with such knowledge, or continues therein after he has acquired such knowledge, he cannot recover against the common master for injuries resulting from the negligence of such fellow-servant; and if the complaint in such an action fails to negative the existence of knowledge, it will be bad on demurrer, though it alleges the common master had knowledge or notice of such negligent habits. Lake Shore, etc. Co. v. Stupak, S. C. Ind., Oct. 12, 1886; 8 N. E. Rep. 630.

26. MORTGAGE-Assignment of Notes to Different Parties-Priority of Lien.-Where several mortgage notes are executed to the same person, the assignment of them to different persons operates as an assignment, pro tanto, of the mortgage, and the holders have priority of lien in the order in which their different notes become due, the notes standing as so many successive mortgages. Although the lien of the assignor, where he retains the note first falling due, is postponed to that of the assignees holding under indorsements made at the same time, this does not change the rule as among themselves, nor entitle them to share pro rata in the mortgage fund. Parkhurst v. Watertown, etc. Co., S. C. Ind., Oct. 14, 1886; 8 N. E. Rep. 635.