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P., who resides in Kansas, commences an action before a justice of the peace in Kansas against G., who resides in Indiana, and P. also at the same time institutes attachment and garnishment proceedings in such action, and P. procures service of summons by publication in a newspaper only, and P. obtains a judgment against G. for the amount claimed, and also obtains an order against the garnishee, who is a debtor of G., requiring him to pay the amount of such judgment, which the garnishee does, and P. accepts such amount in satisfaction of said judgment, but G. did not at any time owe P. any thing nor did P. at any time have any cause of action against G., and G. did not in fact have any notice of said suit, or attachment, or garnishment proceedings until long after they occurred, held, that nothing in said action, except the disposal of the money or property obtained by virtue of said attachment and garnishment proceedings, and the title thereto, is res adjudicata, and that G. may maintain an action against P. for the damages occasioned by the wrongful obtaining of said money. See Hoshaw v. Hoshaw, 8 Blackf. (Ind.) 258; Melhop v. Doane, 31 Iowa, 399-407; Alexander v. Hutchison, 9 Ala. 825; 1 Greenleaf on Ev., § 542; Story on Confi. of Law, § 549. Starr v. Hinshaw. Opinion by Valentine, J.

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SONAL PROPERTY. — A., in possession of lands belonging to defendant, with an agreement for a deed, erected buildings thereon under a verbal agreement that the buildings were not to become the property of defendant. Thereafter A., while in possession by bill of sale, under seal conveyed the buildings to plaintiff's intestate. Subsequent to this defendant, by request of A., conveyed the lands to K. with warranty, A. at the same time gave up the agreement for the deed and a release of the lands with the privileges and appurtenances belonging. Neither defendant nor K. knew of the conveyance to plaintiff's intestate. The deed to K. made no mention of the buildings, but conveyed by metes and bounds with the privileges and appurtenances. Held, that defendant was liable to plaintiff for the conversion of the buildings. If a man puts a house or other building upon land of another, under an agreement with the owner of the land that he may remove it, the building becomes his personal property. He may lose his right to it if the land is sold to an innocent purchaser without notice of the agreement. He cannot set up his title against such innocent purchaser whom he has misled by permitting the building to be attached to and apparently a part of the realty bought by him. But as against the original owner of the land and all persons taking under him with notice, the building never becomes a part of the realty, but remains personal property, and he or a purchaser from him may maintain replevin or trover to recover it, or its value, even while it remains npon the land and apparently a part of the realty. Hunt v. Bay State Iron Co., 97 Mass. 279; Brooks v. Prescott, 114 id. 392; Hartwell v. Kelly, 117 id. 235. In this case by virtue of the agreement between A. and the defendant, the buildings never became a part of the defendant's real

estate, but remained the personal property of A. He had the right to sell them to the plaintiff's intestate. Defendant knew that by virtue of the agreement he had made the buildings remained personal property, and he is presumed in law to have known that the effect of his sale of the land to K. would be to give him a title to the buildings, and thus deprive the owner of all right to them. His sale to K. was the exercise of dominion over the property inconsistent with the right of the plaintiff's intestate, who was the owner. Doliver v. Ela. Opinion by Morton, J.

[Decided June, 1880.]

MASTER AND SERVANT-ONE ASSISTING SERVANT AT REQUEST OF MASTER NOT CO-SERVANT-NEGLIGENCE.-Plaintiff was in the employ of one Winchester as a machinist. Winchester had built an engine which defendant, a teamster, had been employed to take to the railroad station and load it on the car. Plaintiff and another employee of Winchester assisted defendant's servants in loading the engine on defendant's wagon. Defendant, who was present, told plaintiff and the others (what was denied by Winchester), that it was a part of his agreement with Winchester that two of the latter's men should be sent to the station to assist in unloading the engine to the car. Believing this, plaintiff and one other of Winchester's men went to the station and assisted in unloading, during which plaintiff was injured by the negligence of one of defendant's servants, for which he brought action. Defendant set up that at the time of the injury plaintiff was his servant, and a co-servant of the one through whose negligence he was injured. Held, that plaintiff was not defendant's servant. A servant cannot recover of his master for an injury caused by the negligence of a fellow-serant, because when he enters into the service he by implication agrees that he will take the ordinary risks of the service, including the risk of the negligence of fellow-servants. But the plaintiff did not enter into the service of the defendant. There was no contract of service between them. The plaintiff could not recover any wages of the defendant. He was in the service of Winchester, and believed and understood that he was doing the work of Winchester. He was induced to assist the defendant by his false representations, but the defendant cannot thus impose upon him the incidental and implied obligations of a contract of service into which he has not entered. Kelly v. JohnOpinion by Morton, J. [Decided April, 1880.]

son.

CRIMINAL LAW.

EVIDENCE-CONVERSATIONS ACCOMPANYING ACTS PROVED ADMISSIBLE.-Where acts and transactions in which the accused person took part previous to a murder were given in evidence by the prosecution, held, that the exclusion of conversations accompanying such acts and transactions offered to be shown by the defense was erroneous. If the acts of the accused done before the commission of the crime with which she is charged are competent evidence tending to show that she committed such crime, then what was said at the time the act was done is also admissible, as explanatory of the same, and as indicative of the intent or object of the act. The reason for this rule is very forcibly stated in Wiggins v. Plumer, 11 Fost. (N. H.) 251-267: When evidence of an act done by a party is admissible, his declarations made at the time having a tendency to elucidate or give character to the act, and which may derive a great degree of credit from the act itself, are also admissible as part of the res gesta." And the rule is substantially stated in the same way in Gordon v. Shurtliff, 8 N. H. 260; Plumer v. French, 2 Fost. 454; and Hersom v. Henderson, 3 id. 498. "When a

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fact is offered in evidence, the whole transaction of it consists of many particulars, which may and ought to be proved. Every additional circumstance proved may vary the effect of the evidence - may neutralize it or give it point. What is then said by the parties, and what was said by others to them, relative to the subject of the transaction, is a part of the transaction itself. It is admissible on the same principle that every other part of it is, that the whole matter may be seen by the jury upon the same principle which disallows extracts or written papers, that their effects may be materially varied by the part omitted. Contemporaneous but otherwise unconnected conversation is rejected on the same ground as other unconnected facts. If the statement offered in evidence does not tend to elucidate or give character to the acts proved, it is to be rejected. If it is upon the same subject and relative to the act in proof, it should be received." The case of Wiggins v. Plumer, supra, was referred to by the late learned Justice Paine in Ranger v. Goodrich, 17 Wis. 78-85, and approved as stating the true rule in cases of this kind. The same rule is stated in Lund v. Tyngsborough, 9 Cush. 36-41. This court, in the case of Bates v. Ableman, 13 Wis. 644-650, admits the justice of the rule as stated in the latter part of the above quotation in the following language: "It is undoubtedly true that where the intent of a party to a sale is in issue, his statements at the time, and so connected with the transaction as to be a part of the res gestæ, are competent evidence to show such intent, even though the person is not a party to the suit." In the case of Sorenson v. Dundas, 42 Wis. 642, the rule is stated very briefly: "Declarations are verbal parts of the res gesto only when they are contemporaneous." Felt v. Amidon, 43 Wis. 467. In Hamilton v. State, 36 Ind. 280, it is said: "It is well established by the authorities that in all cases, civil or criminal, where evidence of an act done by a party is admissible, his declarations made at the time, having a tendency to elucidate, explain, or give character to the act, are admissible. They are a part of the transaction, and for that reason are admissible, and it makes no difference, so far as the admissibility of the declaration is concerned, whether it be in favor of or against the party making it. If the act was one of alleged criminality, and the accompanying declaration tends to show it to be innocent, it is equally admissible as when the tendency is to show the criminality of the act; and it may be given in evidence by the defendant as well as by the State." See, also, Parsons v. State, 43 Ga. 197; Comfort v. Heople, 5 Ill. 404; Head v. State, 44 Miss. 731; McKee v. People, 36 N. Y. 113; Russell v. Frisbie, 19 Conn. 216. Wisconsin Sup. Ct., Feb. 3, 1880. Mack v. State of Wisconsin. Opinion by Taylor, J.

TRIAL-PRIVY VERDICT NOT ALLOWABLE. - Upon a trial for felony the verdict of the jury was received by the judge about eleven o'clock at night, after the court had duly adjourned until another day and the jury were discharged. The statute of Nebraska, where the trial took place, provides that "when the jury have agreed upon their verdict they must be conducted into court by the officer having them in charge. Before the verdict is accepted, the jury may be polled at the request of either the prosecuting attorney or the defendant." Held, that the verdict was a privy one and erroneous. A verdict to be of any validity must be delivered in open court. This was the rule of common law. Chitty says "When the jury have come to an unanimous determination with respect to their verdict they return to the box to deliver it. The clerk then calls them over by their names, and asks them whether they agree on their verdict, to which they reply in the affirmative. He then demands who shall say for them, to which they answer their foreman. This being done, he desires the prisoner to hold up his

hand, and addresses them: Look upon the prisoner, you that are sworn; how say you, is he guilty of the felony (or treason, etc.), whereof he stands indicted, or not guilty?' The foreman then answers 'guilty,' or 'not guilty,' according to the conclusion to which the jury have arrived in their consultations. The officer then writes the word 'guilty,' or 'not guilty,' as the verdict is, after the words 'pro se' on the record, and again addresses the jury: 'Hearken to your verdict, as the court hath recorded it: You say that A B is guilty (or not guilty) of the felony whereof he stands indicted, and so say you all.' "' 1 Chitty on Crim. Law, 635-6; 1 Bishop on Crim Pro., § 1001. Nebraska Sup. Ct., Feb. 10, 1880. Longfellow v. State of Nebraska. Opinion by Maxwell, C. J.

FINANCIAL LAW.

"

BANK-LIABILITY FOR MISTAKE-PROTESTING NEGOTIABLE INSTRUMENT FOR CUSTOMER CUSTOMCURRENT FUNDS-GRACE. — A certificate of deposit, payable to order one year after date, "in current funds," was placed in the hands of a bank at D. for collection. It was issued by a banker at D. It was protested on the day it was due, without grace. By a custom among bankers, current funds" meant money, and by a custom among the banks of D., in relation to certificates of deposit issued by any bank there, they were payable without grace. Held, that the certificate being payable in money, the indorser was discharged by a failure to present, etc., with grace, but that the bank was not guilty of negligence in its action so as to make it liable to the owner of the certificate for any loss resulting from such discharge. The certificate on its face was not negotiable, and the demand and protest was well made on the day it was, but for the custom that " current funds" meant money or National bank notes, and because of this it became a negotiable instrument, entitled to grace. The fact of negotiability was therefore a mixed question of law and fact. Admitting the bank was bound to know the law, this is not true as to the matter of fact. If it was the duty of the bank to make inquiry, such inquiry being made, it would have been developed that current funds meant legal tenders and National bank notes. Regarding the certificate as being payable in National bank notes, the bank must determine at its peril whether it was negotiable. This being determined in the affirmative, inquiry would have shown another custom to the effect that the certificate was payable without grace. The bank must then determine which of these customs it would follow. Suppose it adopts the latter, and upon the trial the jury should find, according to the weight of evidence, no such custom existed, would it follow that the bank was guilty of negligence? It would not, because the true question is not as to whether it was true in fact as to such custom, but whether the bank had good reason to so believe, and acted in good faith, upon such belief, as a careful and prudent person engaged in the same business would ordinarily have done. Iowa Supreme Ct., April 26, 1880. Haddock v. Citizens' National Bank of Des Moines. Opinion by Seevers, J.

ULTRA VIRES-SAVINGS BANK MAY BORROW MONEY AND MORTGAGE SECURITIES-ESTOPPEL BY LAW DOES NOT BIND PUBLIC. - A savings bank, by its charter, had express power to receive money on deposit; to receive and execute trusts committed to the corporation by any person or persons, or by order of any court in this State; to grant and purchase annuities; to issue letters of credit and other commercial obligations, other than notes designed to circulate as money; to loan money; to receive money on deposit and pay interest therefor; to discount according to bank usage; to take stock in other corporations; to buy and sell

exchange, bills, notes, bonds, and other securities; to have and hold coin and bullion; to take and hold real estate as security for and in payment of loans and debts due or to become due to the corporation; to purchase and hold real and personal property at any sale to enforce its securities or debts due; to hold said property, and sell and convey the same; and to purchase and hold such real and personal estate as may be convenient for the transaction of its business. Special power was also given to receive deposits from married women and minors, and to issue therefor certificates payable in their names, and payable to their order only; and to pay and receive any rate of interest, not exceeding 10 per cent, and to make special regulations in regard to trust funds, deposits or savings. Held, that it had in addition the implied power to borrow money and to execute a deed of trust of securities held by it to secure such loan, and further, where the loan was used for the benefit of the bank, it could not set up as a defense to certificates secured by such deed of trust, that the contract was made ultra vires. Planters' Bank v. Sharp, 6 How. 323; Curtis v. Leavitt, 15 N. Y. 52; McIntire v. Preston, 10 Ill. 48. Accordingly, when the bank, by deed of trust, conveyed to a trustee certain securities owned by it, and created an "investment department," and issued certain instruments styled "investment securities," for the respective amounts of money received from those accepting them, such instruments being described as secured by the deed of trust, held, that the transaction was valid and the deed of trust enforceable in behalf of the security holders, against the property described in and conveyed by it, and the defense of ultra vires could not be set up by the bank or its receiver in insolvency. Darst v. Gale, 83 Ill. 141; Ex parte Clapperdale, D. G. M. & G. 19; Bradley v. Ballard, 55 Ill. 413; West v. Menard Co. Ag'l Bd., 82 id. 206; Maher v. Chicago, 38 id. 266; Railway Co. v. McCarthy, 96 U. S. 267; San Antonio v. Mehaffy, id. 315; Hitchcock v. Galveston, id. 351; Morris R. Co. v. R. Co., 20 N. J. Eq. 542; Whitney Arms Co. v. Barlow, 63 N. Y. 62. Held, also, that a violation of the by-laws of the bank in issuing such securities would not be available against a security holder. As a rule, the by-laws of a corporation are binding only on its members and officers. Illinois Supreme Ct., May 18, 1880. Ward v. Johnson. Opinion by Schofield, J.; Scott, J., dissented.

dissolved by the Scotch courts. Prob. Div. and Adm. Div., April 23, 1880. Harvey v. Farnie. Opinion by Hannen, Prest., 42 L. T. Rep. (N. S.) 482.

MARITIME LAW CHARTER OF MORTGAGED SHIP. Where the owner of a ship, which is mortgaged, charters her before the mortgagee takes possession, the mortgagee cannot interfere to prevent the execution impair the value of his security, and if the vessel be of the charter-party unless it will materially injure or arrested in an action of mortgage by the mortgagee, the court will release her on the application of the charterer, unless such injury is shown by the mortFanchon. Opinion by Sir R. Phillimore, 42 L. T. Rep. gagee. Prob. Div. and Adm. Div., April 21, 1880. The (N. S.) 483.

THIS

NEW BOOKS AND NEW EDITIONS.

VII TEXAS COURT OF APPEALS REPORTS.

HIS volume, published by F. H. Thomas & Company, of St. Louis, contains decisions at Tyler term, 1879, and the early part of Galveston term, 1880. The court, it will be recollected, is exclusively of criminal jurisdiction. This volume contains no decisions of remarkable general interest, but the cases are intelligently decided and well reported. There are twenty-six murder cases in the volume. A few gleams of the grim humor which usually enlivens the series are noticeable. In Moore v. State, p. 14, an indictment for murderous assault, the court thus concluded: "Our sympathies have been enlisted on behalf of this young man. We find him, in company with his father, in a bowling-alley, where at least some of the parties were rolling ten-pins for and drinking medicated blackberry brandy, and which is the introduction of the parties by one of the witnesses, and we are impressed with the belief that he has probably fared badly more on account of the bad company he was in than from any innate vice of his own; and it may be, that like one of old, the son's teeth were set on edge on account of the father having eaten sour grapes." But the young man was convicted, all the same. Haines v. State, p. 30, was an indictment for keeping open a saloon and treating a crowd to drinks on election day. The defense was that he had a right to keep the same open for the sale of his other goods, wares and merchandise, consisting of sardines, oysters, salmon, pickles, canned fruits, flour, vinegar, cigars, etc. The court observed: "There might be some plausibility in the position if the evidence had left us in doubt as to his motives and BOUNDARY -ALONG HIGHWAY. The presumption purposes in opening the doors. This it does not do. of law that the property in the soil of a road belongs His object was, not to sell those other goods,' but to usque ad medium filum via to the adjoining proprie-treat the crowd.' The crowd, or those of it who tors, and consequently that a conveyance of an estate bounded by a road passes the land up to the middle of such road, does not arise until the road has been dedicated to the public by being used as a highway. Decision of Exchequer Division (Kelly, C. B., and Cleasby, B.), affirmed. Ct. of Appeal, Dec. 11, 1879. Leigh v. Jack. Opinions by Cockburn, C. J., and Bramwell and Cotton, L. JJ. 42 L. T. Rep. (N. S.) 463.

RECENT ENGLISH DECISIONS.

CONFLICT OF LAW-DIVORCE — - DOMICILE. -A domiciled Scotchman married an English woman in England. After the marriage he retained his Scotch domicile, and continued to reside in that country with his wife for about two years, when she obtained a divorce from him before the Scotch Court of Session, on the ground of his adultery only. Subsequently he came to reside in England, where he married for the second time. The second wife now sought to have her marriage declared null and void, on the ground that the Scotch divorce was inoperative, at any rate in England, and that therefore the respondent had a wife living at the time of such marriage. Held, that the marriage was a Scotch marriage, and, as such, properly

responded, for aught that appears, with promptness, to the invitation, were not misled as to his meaning. It is evident that the first State's witness, Quitman Anderson, who was one of the party invited, did not get any oysters, sardines, pickles, fruits,' etc.; for he expressly says, 'I don't remember seeing any such things in his house; there was a crowd in the house, and as soon as I got a drink I came out." In Ned Curry v. State, p. 91, an indictment of "guily as charged in the indictment" was held good. The court distinguished Taylor v. State, 5 Tex. Ct. App. 521, where the verdict was simply "guity." In McCoy v. State, p. 379, an assessment of punishment by the jury, "a five years in the State prisin," was held good. In McMillan v. State, p. 100, this verdict was held good: "We, the jury, find the defendend guilty, and assess his punishment at five years' confindendment in the State penitentiatry." In Irvin v. State, p. 109, a hog-killing case, a witness testified to finding the hog in the following condition: "I put my foot on him, and he did not say any thing for he was speechless." In Lanham v. State, p. 126, a murder case, it was proved that the

defendant, an actor, had brandished a pistol and threatened to give the deceased a "matinee." In Allen v. State, p. 298, the reporter says: An eloquent and erudite argument was filed for the appellant, by some one whose modesty deterred him from appending his name thereto." That argument prevailed. For sober consideration we recommend Walker v. State, p. 245, a murder case, where the examining magistrate had compelled the prisoner to make his footprints in an ash heap, in order that they might be compared with tracks found at the scene of the crime. This was held regular, citing State v. Graham, 74 N. C. 646; S. C., 21 Am. Rep. 493, and distinguishing Stokes v. State, 5 Baxt. 619; S. C., 30 Am. Rep. 72. (But see State v. Sanders, 68 Mo. 202; S. C., 30 Am. Rep. 782, where the jury, at the suggestion of the prisoner's counsel, made an experiment out of court with worn-out boots like the prisoner's, and the conviction was set aside.) In Wright v. State, p. 574, the principal State's witness claimed to have acquired his knowledge of the offense in the character of a detective and feigned accomplice. The question of his real guilt was left to the jury.

XII RHODE ISLAND REPORTS.

This volume, published by Houghton, Osgood & Co. of Boston, contains decisions down to March, 1880. In the old fable, the rabbit took pride to herself as against the lioness, for producing so many young at a birth, whereas the lioness brought forth but one. Unum sed leonem, responded the lioness. So the Rhode Island court, although not prolific, never puts forth a volume that is not full of interest. Her court is one of the ablest, and her reporter, Mr. Arnold Green, is one of the very best. Of the contents of the present volume we have already called particular attention to a considerable portion, and now will simply note the following important decisions inclusive of those to which we have alluded: Williams v. Winsor, p. 9. A mortgage of property subsequently to be acquired is valid in equity. Saint Joseph's Church v. Assessors of Taxes, p. 19. -The residence of a priest or clergyman is not exempt from taxation as a "building for religious worship," because it contains one room set apart as a religious chapel. Wakefield v. Newell, p. 75. -A municipal corporation is not liable for allowing ordinary surface water to escape from a highway on to adjacent land, nor for the results of such ordinary changes of grade as must be presumed to have been contemplated and paid for on laying out the highway. Elliott v. Gower, p. 79. - A married woman may charge her separate equitable estate expressly in writing, or orally when the contract is for the benefit of herself or the estate. King Philip Mills v. Slater, p. 82. - The plaintiff having failed in the first deliveries of goods which he contracted to manufacture and deliver, in successive lots, cannot compel the acceptance of goods subsequently manufactured and offered. Kelley v. Silver Spring Co., p. 112. - An adult employee, injured by imperfect and unfenced machinery, cannot maintain an action against his employer where he himself was familiar with the machinery and had long worked with it without complaint. Butcher v. Providence Gas Co., p. 149. - Plants in plaintiff's greenhouse were injured by the escape of gas from the defendant's mains, laid in a city street, through a city sewer, owing to the negligence of the city in building the sewer; held, that defendant was liable. Bennett v. Lovell, p. 166. The plaintiff sustained injury through the fright of his horse, on a highway, by tubing and machinery left by defendant on the highway; held, that defendant was liable. Goodell v. Fairbrother, p. | 233. One who hires a piano, with an agreement that when and not until the rent amounts to a specified sum the piano shall become his property, has no attachable interest before the payment of the full sum. Hunt v.

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Jones, p. 265. An action lies in Rhode Island for breach of contract of sale of goods, the contract being made there and valid there, but the goods to be delivered in New York, where the contract was invalid by the statute of frauds. Carpenter v. McLaughlin, p. 270. One who as surety and before utterance indorses a note payable to another is liable to the payee as a joint maker, although the payee knew him to be a surety. Shurtleff v. Millard, p. 272. A minor may recover money voluntarily paid by him on a contract which he has repudiated, and from which he derived no benefit. Ordway v. Remington, p. 319. - Under a lease for years from a specified day, rent conditioned to be payable quarterly on certain days is not due until after midnight of such days. Austin v. Coggeshall, p. 329. - A city is not liable for the expense of a public entertainment given to straugers upon the resolution of the common council. Providence Steam Engine Co. v. Providence, etc., Steamship Co., p. 348. - A riparian owner platted his land into streets, lots, and squares, one of such streets being below high-water mark; the street was subsequently filled out, but was subsequently closed by the owner of all the adjoining lots; held, that he could be compelled to reopen it by the owner of some of the other lots. Lee v. Union Railroad Co., p. 383.- A was injured by a horse driven by B, on a highway, and frightened by the overturn of a sleigh by a heap of snow and ice wrongfully made on the highway by C; held, that A could maintain an action against C therefor. Baldwin v. Barney, p. 392. -A, carefully driving on Sunday on a highway in Massachusetts, was injured by the reckless driving of B; held, that A could maintain an action therefor against B. Glavin v. Rhode Island Hospital, p. 411. One who sustains injury at a public hospital from unskillful surgical treatment by an unpaid attending surgeon, may maintain an action against the hospital therefor, although the hospital is a public charity, and the plaintiff paid nothing but a small amount for board and attendance. Cassidy v. Angell, 'p. 447. — Where one was found fatally injured in an excavation in a highway, and there was no proof of the circumstances of his death, the jury may consider his habits as to temperance and caution, and his acquaintance with the locality, upon the question whether he had used reasonable care. McKim v. McKim, p. 462. — In case of separation of husband and wife, equally fit, by character and circumstances, to have the custody of children, the custody of a delicate female child of four years of age will be awarded to the mother for the time being. Peck v. Peck, p. 485. — Betrothal, followed by cohabitation, but without a present agreement to become husband and wife, does not constitute a valid marriage. Hatch v. Tucker, p. 501.-The consignee and receiver of a cargo is liable for the freight, although the master, owing to a dispute with the person who loaded the vessel about the price of trimming the cargo, sailed without signing the bill of lading; and he cannot deduct that price from the freight. Fallon v. O'Brien, p 518.- One whose horse escaped from an inclosure, and strayed on a highway, without negligence on the part of the owner in suffering the escape or in recapturing the horse, and injured a person on the highway, is not liable for such injury. Carpenter v. Carpenter, p. 544. A testator having directed his executors to invest $5,000 in their names as executors, for the benefit of his grandson, the executors in their books charged themselves as trustees and credited the grandson with that sum, invested it in government and State bonds, and deposited them in a bank vault, in a tin box, in an envelope labelled, "investment of $5,000 for" the grandson, with the date of purchase; the vault was robbed and the bonds were lost; the executors, giving indemnity, procured new bonds in their place, through an agent, whom they had reason to suppose honest, but who appropriated the bonds, so

that some of the amount was lost; held, (1) that the trust was duly constituted; (2) that the executors were not liable for the robbery or the misappropriation. Horton v. Champlin, p. 550.- An attorney's lien on a judgment does not authorize him to bring a suit thereon in his client's name without his authority. The volume is an elegant specimen of law book publishing.

XXIII KANSAS REPORTS.

This volume contains cases decided at July term, 1879, and all the cases decided at January term, 1880. The volume is well executed in every respect, Mr. A. M. F. Randolph being the reporter, and George W. Martin, Topeka, the publisher. The cases are of considerable interest. We have marked the following: Thomas v. Wordman, p. 217.- An action of nuisance by the diversion and damming of water cannot be maintained, where the complainant has delayed proceeding for two years after acquiring knowledge of the injury, and the dam meanwhile has been twice rebuilt. State v. Thompson, p. 338.— On a criminal trial the existence of a corporation may be proved by general reputation. Central Branch, etc., Railroad Co. v. Henigh, p. 347. - A boy, four or five years old, unaccompanied, climbed upon a railroad car, standing alone on a switch-track on a slightly descending grade, with brakes fastened, unfastened the brakes, and thus started the car, and then jumping or falling off, was run over by the car and killed; held that there was no liability on the part of the railway company. Horder v. Horder, p. 391.- A voluntary deed from husband to wife is valid as against the husband's adult heir, not dependent on him for support. Morris v. Kennedy, p. 408. A debtor gave his creditor the check of a third party, payable to bearer and not indorsed, which the creditor kept twenty-six days before presenting it; on presentation it was not paid, owing to the suspension of the bank; the drawer had no funds in the bank at the time of drawing the check, but the president testified that it would have been paid if presented before suspension; the check was not received by the creditor in payment; and being dishonored was returned to the debtor and by him to the drawer, who promised to pay the amount to the debtor; held, that the debt was not discharged. Graffenstein v. Epstein, p. 443.- A false and fraudulent representation of the market price of wool, made by the vendor to induce a sale and relied on by the vendee, will not avoid the contract, where the vendor had no special facilities for ascertaining the market price and there were no special circumstances making it his duty to communicate his knowledge. State ex rel. Mitchell v. Stevens, p. 456.-A mandamus will not issue to compel a canvassing board to canvass election returns and declare the result, where the returns to the board showed that there were 2,947 votes cast, and there were in fact only 800 legal voters in the county. Kelly v. Caplice, p. 474.-Plaintiff and her husband, in consideration of the satisfaction of a demand of $600 against the husband, and the payment to them of $275, absolutely assigned to A and B a policy in favor of the defendant on her husband's life; A paid the subsequent premiums until maturity, when the amount due was $1,477.73; the insurers refused to pay it without the defendant's receipt on the back of the policy; the defendant refused to sign her name without receiving $477.73 when the policy was collected; accordingly A executed a written agreement to pay her that sum on the payment of the policy; she signed her name, and A and B received the full amount; in an action against them on the agreement, held, that it was unconscionable, and not enforceable beyond an amount fairly due for her service and inconvenience in writing her name. Best v. Crall, p. 442. The payee of a note indorsed and delivered it, before maturity, to a bank, as collateral security for a

demand of the plaintiff; subsequently but before maturity the maker paid it to the payee, not knowing of the transfer, and took a receipt; heid, that the note was not thereby discharged. Smith v. Gore, p. 488.The proceeds of the sale of a homestead are not exempt from execution, unless the vendor has at the time of sale the intention of investing them in another homestead. Comstock v. Adams, p. 513.- The annulling of a decree of divorce replaces the parties in the state in which they were before the divorce, without regard to a subsequent marriage and the birth of children; an agreement between the parties to the contrary is of no effect; and where the divorce was granted by the court of another State, it will be presumed that the annulling of the decree by the same court is regular and valid. Lapere v. Luckey, p. 534.- The doctrine of ancient lights does not prevail in Kansas. Hogan v. Manners, p. 551.- A homestead may be acquired in a building erected on leased land, and although one or two rooms are used for business purposes. Central Branch, etc., Railroad Co. v. Twine, p. 585.-Although a railroad company is licensed to occupy a street or alley with its track, yet if in so doing it changes the grade, or otherwise obstructs access to lots by its track, or by leaving cars unnecessarily standing on the track, the lot-owner may maintain an action for damages, and the measure of damages where the obstruction is fluctuating, as by leaving cars on the track, is the injury prior to the commencement of the suit, but where the injury is permanent, as by the change of grade or the manner of laying the track, the lot owner may recover the consequent depreciation in the value of his lot; and in such cases a recovery implies a conclusive consent to such occupation. Piazzek v. White, p. 621.— Where several own cereal grain, of the same kind and value, mingled together by their consent or by reason of circumstances reasonably to be foreseen, each may maintain replevin for his just proportion. State v. Lautz, p. 728.- Where an officer in charge of a jury, in a case of burglary, by their request but without authority of the court, furnishes them with an atlas, which they examine in their deliberations, their verdict of conviction is void.

NOTES.

THE following bills, introduced at the late session of

our Legislature, failed to become laws by reason of the withholding of executive approval: Amending act to revise the charter of the city of Buffalo; relative to water supply of Deer river, Lewis county; for the construction of a canal bridge at Tonawanda; amending act relative to the Society for the Protection of Destitute Roman Catholic Children; revision and consolidation of poor laws; relative to the admission of persons, not paupers, into asylums; providing for verification of pleadings in justices' court; relative to incorporation of Red House Driving Park Agricultural Society; for incorporation of National Guard Mutual Relief Association; for incorporation of the Governor's Guard; to incorporate the Rochester Electro-Medical Institute; to change the name of the Elmira Female College; amendatory of act conferring further powers upon boards of supervisors; amending act relating to the care and custody of the insane; fixing the amount to be paid on a policy of insurance; relative to taking fish from Wallkill river; for the improvement of certain rivers and to facilitate the running of logs dowu the same; incorporating the Knights of the Maccabees of the World; amending section 2, title 1 of chapter 13 of Revised Statutes defining land; for the relief of Theodore P. Ballou; relative to sale of property for unpaid taxes in Steuben county; amending Revised Statutes relative to officers chosen at certain elections; exempting certain counties from chapter 733 of the Laws of 1872; authorizing the county clerk of Rich

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