Preference.

2. Bankruptcy Where the treasurer of a corporation, who had supplied practically all of its capital, and who had been led to believe that a claim against the corporation was unfounded, though other corporate officers knew it was well founded, paid over to himself on his own claims practically all of the corporate assets, held, that such payment was preferential, for the corporation was charged with knowledge of all of its officers.-In re Boston-West Africa Trading Co., U. S. D. C., 255 Fed. 924.

3. Banks and Banking-Lien on Deposit.The right of a bank under Civ. Code, § 3054, to enforce its lien upon a deposit and appropriate it in the extinguishment of the depesitor's matured indebtedness, is not dependent upon the consent of the depositor.-First Nat. Bank v. Coplen, Cal., 179 Pac. 708.

Const. Co. v. Seaboard Air Line Ry. Co., Tenn., 210 S. W. 633.

5.

Initial Carrier.-Initial carrier could by contract limit its liability for shipment to a foreign country to its own line; the Carmack Amendment not being applicable to such shipment. Chicago, M. & St. P. Ry. Co. v. Jewett, Wis., 171 N. W. 757.

6. Carriers of Live Stock-Published Rates. -Under the Carmack Amendment to the Interstate Commerce Act (U. S. Comp. St. 1916, §§ 8604a, 8604aa), the published rates, based upon valuation, of interstate carrier, are presumed to be equally within knowledge of carrier and shipper, and both are bound by them as matter of law.-Bassett v. Chicago & N. W. Ry. Co., Wis., 171 N. W. 749. 7. Carriers of Passengers-Acceptance of Passenger.A carrier is not required to accept as a passenger one without an attendant who is mentally incapable of caring for himself.Chicago, R. I. & G. Ry. Co. v. Sears, Tex., 210 S. W. 684.

8. Common Carrier-Reasonable Charges.-A common carrier, if it can reasonably do so, must receive and transport all freight tendered to it, with legal charges, but the rule is not absolute, and like all other rules, has its exception. -Miller Engineering Co. v. Louisiana Ry. & Nav. Co., La., 81 So. 314.

9.

Corporations-Costs.-An attorney's fee as part of the "costs" cannot be recovered in an action for an accounting charging individual defendants with fraud, conspiracy and misappropriation of funds of defendant corporation, in which plaintiff's decedent was a stockholder. -McArthur v. John McArthur Co., Cal., 179 Pac. 700.

10. Internal Affairs.-The issuing of stock is a corporate act which is regulated and controlled by the laws of the incorporating state, and which, relating to the internal conduct and management of the corporation, is exclusively subject to such laws. In re Fryeburg Water Co., N. H., 106 Atl. 225.

11. Officers.-The officers of a corporation cannot make a valid agreement with an agent that will enable him, after its insolvency and while it is enjoined from transacting any business or disposing of any assets, to collect money on account of corporation and appropriate it in payment of his individual claim.-O'Neil v. Burnett, Pa., 106 Atl. 246.

12.- -Promoters.-Where contract of corporation with its promoters was procured by fraudulent representations or concealment by promoters, corporation can sue promoter for damages or for an accounting, or it could rescind contract and recover back consideration paid. Arney v. Brittain & Co., Iowa, 171 N. W. 697.

13.- -Ultra Vires.-An act of a corporation is properly said to be "ultra vires," when it is beyond the powers conferred upon the corporation.-Richardson v. Bermuda Land & Live Stock Co., Tex., 210 S. W. 746.

14. Conspiracy-Defined.-The crime of conspiracy does not have two distinct elements, one of combination, the other of attempt, which must combine to complete the offense.-Commonwealth v. Harris, Mass., 122 N. E. 749.

15. Constitutional Law-Privilege Tax.-Acts 1909, c. 504, requiring corporations, which had already entered state and paid for privilege of entering, to pay a privilege tax measured by

their capitalization, and to pay difference between sum paid on entering state and amount required by statute, is constitutional.-Mengel Box Co. v. Stevens, Tenn., 210 S. W. 635.

16. Contracts-Act of God.-If a party by contract creates an absolute or unconditional obligation, the performance of which rests on himself, he is bound to make it good or to answer in damages, notwithstanding any act of God or inevitable accident, because he might have provided for such contingencies by his contract.-Prather v. Latshaw, Ind., 122 N. E.

18. Excusing Performance.-Where parties excused from further performance of contract by a valid legislative act or by some intervening cause over which they have control, neither party can recover consequential damages by reason of the other's non-performance.-Bell Kanawha Electric Co., W. Va., 98 S. E. 885.

V.

Traction

&

19. Illegal Consideration.-A separation of the good consideration from that which is illegal in a contract will not be made where party asking to enforce contract is himself the one who has made and breached the illegal consideration.-Mission Brewing Co. v. Rickert, Cal., 179 Pac. 720.

20. Mistake by Fact.-A mistake in fact is one of the fundamental grounds of equitable relief, and if an agreement is entered into by mutual mistake between the parties as to their rights, either is entitled to have it set aside.Bach v. Interurban Ry. Co., Iowa, 171 N. W. 723.

21.- -Mutuality.-For a contract to be "mutual," an obligation must be thereby imposed upon each party to do or permit something to be done in consideration of the act or promise of the other, and, unless both are bound by the contract, neither will be bound thereby.-Neola Elevator Co. v. Kruckman, Iowa, 171 N. W. 743.

22. Performance.-Where plaintiff has performed contract in part, and its further performance has been prevented by defendant's act, he may either sue for the breach or he may sue for compensation for work actually performed.-Hoefflin v. Wilkerson, Ky., 210 S. W.

25. Unexpired Lease.-An unexpired lease constitutes an incumbrance, in that it entitles the tenant to a right or interest, to the diminution of the value of the land conveyed.-Morriss v. Hesse, Tex., 210 S. W. 710.

26. Criminal Law-Co-defendant.-Admission in evidence of declarations by a co-defendant was not error, in a prosecution for homicide; the judge having properly cautioned the jury that the statements were evidence only against the co-defendant.-State v. Cooler, S. C., 98 S. E. 845.

27.- -Government Reservation.-Where land is ceded to or purchased by the United States with the consent of the state under Const. U. S. art. 1, § 8, subsec. 17, the federal courts have jurisdiction of the prosecution for a crime committed thereon to the exclusion of the state courts. Gill v. State, Tenn., 210 S. W. 637.

Notice. Unless 28. Judicial required by statute, courts do not take judicial notice of the ordinances and by-laws of municipal corporations.-Miles v. City of Montgomery, Ala., 81 So. 351.

29. Plea in Abatement.-A plea in abatement of an information for a felony because

defendant had not had a preliminary examination, required by Const. art. 2, § 17, and had not waived it, must be made prior to pleading to merits of case.-Hensley v. State, Okla., 179 Pac. 788.

municipal cor

false

30. Death-Corporation.-A poration is not a "person or corporation" within Vernon's Sayles' Ann. Civ. St. 1914, art. 4694, giving action for death "caused by the wrongful act *** of another person or corporation." -City of Dallas v. Halford, Tex., 210 S. W. 725. 31. Deeds-False Demonstration.-A term in a description will be rejected when necessary to effectuate the intention of the parties. Farnham v. Huston, Cal., 179 Pac. 701. 32. Repugnancy.-Where a deed conveyed a fee tail and attempted to pass the reversion to others in default of heirs of the grantor's body, nothing passed by the reversion; estates in tail having been converted by Revisal 1905, § 1578, into estates in fee simple, and the reversion thereby cut off. Sharpe v. Brown, N. C., 98 S. E. 825.

33. Easements Servient Estate. Nothing less than an adverse and hostile use of the servient estate, wholly inconsistent with the right of the owner of the easement, will start the statute of limitations running.-Morris v. Daniel, Ky., 210 S. W. 668.

34. Estoppel-Silence. That plaintiff remained silent at an interview had for the purpose of determining whether she had any objection to sale of land to a defendant held not as a matter of law to estop her as to such defendant who had knowledge of the coercive methods used by the other defendants in their dealings with plaintiff inducing her to part with title.-Heimer v. Yates, Tex., 210 S. W. 680.

35. Evidence Common Knowledge.-It is a matter of common knowledge that the expenses of maintenance and operation of street railways in the neighborhood of the city of Boston have increased enormously since the outbreak of the great war.-In re Opinion of the Justices, Mass., 122 N. E. 763.

36. Judicial Notice.-Court will take judicial notice of the bitter border warfare along Kansas-Missouri border during Civil War.Doneghy v. Robinson, Mo., 210 S. W. 655.

Plaintiff

37. Self-Serving Statement. architect, suing for services, could not make evidence for himself by writing to defendant a letter stating facts relative to his alleged employment and services, and mailing it to defendant, and such letter could not be used to establish his case.-Sargent v. Lord, Mass., 122 N. E. 761. 38.

a

Similar Acts.-Among inferences which. except under certain conditions, the law will not permit to be drawn, is that a person has done certain he act because has done a similar act at another time.-Nance v. Western Union Telegraph Co., N. C., 98 S. E. 838. 39. Fixtures-Trade Fixture.-A complete refrigeration plant in a hotel, none of machinery, pipes or boxes constituting any part of support of building or any of its walls, so that its removal would do no more than leave brackets attached to walls and apertures in walls requiring plastering thereof, would constitute a "fixture,' under Civ. Code, §§ 660, 1013, as between grantor of hotel and grantee, relying in good faith on appearances and without notice of anything to the contrary, yet it was not so incorporated that it could not be detached, under section 1019, as a "trade fixture."-Marker v. Williams, Cal., 179 Pac. 735.

40. Frauds, Statute of Oral Agreement.Where a contract for the sale of corn is in writing, an oral agreement extending the time for delivery, and not otherwise modifying or or interfering altering the written contract, with its enforcement, does not involve the statute of frauds.-Neola Elevator Co. v. Kruckman, Iowa, 171 N. W. 743.

41. Privity.-Assignee of bankrupts' lease after its acceptance was liable on terms and covenants, by reason of privity of estate, for was owner of rent accruing during time it

leasehold interest; statute of frauds constituting no defense.-Harmon-Wastcoat-Dahl Co. v. Star Brewing Co., Mass., 122 N. E. 753.

and

42. Fraudulent Conveyances-Husband Wife. Where, under deed from husband, wife became absolute owner, she had right to convey in trust for purpose of liquidating debts of husband, and where conveyance to trustee, and by him to husband, was in furtherance of trust, creditors of husband could not complain, and deed by husband and wife to the purchaser of the property would not operate as an assignment for benefit of husband's creditors, under Ky. St. § 1910.-Best v. Melcon, Ky., 210 S. W. 662.

43. Garnishment-Foreign Attachment.-The plaintiff in a foreign attachment may attach in his own hands moneys belonging to the defendant.-G. B. Hurt, Inc., v. Fuller Canneries Co., Pa., 106 Atl. 248.

44.- -Municipality. It is the settled policy of the state to hold immune from garnishment all municipalities and other governmental agencies.-Dickens V. Bransford Realty Co.,

Tenn., 210 S. W. 644.

45. Gas-Increasing Rates.-A gas company which has contracted to furnish gas to a city and its inhabitants for a term of ten years at fixed rates cannot be given the right by a court of equity to violate its contract and increase its rates because war conditions have rendered them unprofitable.-City of Moorhead v. Union Light, Heat & Power Co., U. S. D. C., 255 Fed, 920.

46. Homicide-Dying Declaration.-The fact that a physician told deceased that he could not live and that, if he had any statement concerning anything he wanted to come out in his case, to make it to him, would not render inadmissible the statements of deceased.-State v. Burton, S. C., 98 S. E. 856.

47. Husband and Wife-Alienation of Affections. The right to recover damages for the alienation of a wife's affections does not have to rest upon alienation, which culminates in divorce. Eklund v. Hackett, Wash., 179 Pac. 803.

48.- -Consideration.-Where a husband receives a wife's property for investment, and acknowledges in writing the validity of her claim against him, and seeks to defer payment until satisfaction of his other debts, her acceptance of statement, if not based on a valuable consideration, will not waive her right to participate with his general creditors.-Keller v. Washington, W. Va., 98 S. E. 880.

49. Insurance Construction of Contract.-In construing a life insurance policy for the purpose of ascertaining its legal effect, since the contract is expressed in language selected by the insurer all doubts as to its meaning should be resolved in favor of insured.-Underwood v. Jefferson Standard? NC

the

50. Iron Safe Clause.-An inventory stating neither the value nor the grade of grain on hand, but giving only the quantity, held not a substantial compliance with the portion of the iron-safe clause requiring taking inventory, since by it the value of the stock insured could not be ascertained.-Hartford Fire Ins. Co. v. Walker, Tex., 210 S. W. 682.

51. New Policy.-A contract of one company assuming the liabilities of another company does not constitute an issuance of a new policy upon the life of one dead at the date of such contract, nor an extension of the period of limitation which had begun to run.--Simmons v. Western Indemnity Co., Tex., 210 S. W. 713. 52. Judgment-Conclusiveness.-In the absence of fraud, a judgment for want of an affidavit of defense or for other default is as conclusive as when entered upon a verdict.Exler v. Wickes Bros., Pa., 106 Atl. 233.

53. -Extinguishment.-The general doctrine is that payment of a judgment or debt by one of several joint debtors extinguishes the debt as to all.-Green v. Bolster, Mass., 122 N. E. 740. 54. Nullity.-A judgment on a bail bond cannot be set aside by the court after the expiration of the term at which it was rendered, where the bond was valid and the judgment

was not a nullity.-United States v. Buchanan, U. S. D. C., 255 Fed. 915.

55.- -Partition.-A judgment against remaindermen rendered in a suit for partition does not bar a subsequent suit to recover their remainder interest, where the former judgment was erroneous on its face, in that the court, as a court of equity, failed to grant relief to which the parties were entitled on the case stated by them.-Ellison v. Mattison, S. C., 98 S. E. 840.

56.- Res Judicata.-Where a judgment did not go to the merits, but only dismissed plaintiff's petition in an action to quiet title, because she was not in possession of the property, plaintiff may still institute and maintain an acton in ejectment.-Taylor v. Wilson, Ky., 210 S. W. 670.

57.- -Setting Aside.-Where a fact essential to support judgment for plaintiff is entirely lacking, judgment must be set aside.-Williamson v. Rabon, N. C., 98 S. E. 830.

58. Landlord and Tenant-Conversion.-A landlord, who took a stove of a tenant for rent, when the tenant in fact owed no rent, was guilty of conversion.-Salley v. Parker, S. C., 98 S. E. 847.

59. Libel and Slander-Injury to Profession. -To call a school-teacher insane in connection with her conduct in her business was actionable per se, without proof of special damages; the remark imputing to her a mental condition which wholly unfitted her for her duties, particularly where it was also stated directly that she was unfitted for the position she held. -Wertz v. Lawrence, Col., 179 Pac. 813.

60. Privilege.-In suit for slander, a plea of privilege, in appearing at request of invest!gating committee of an Order of Druids considering plaintiff's application for membership, and stating that plaintiff had negro blood, was not an absolute, but a qualified, privilege.Berot v. Porte, La., 81 So. 323.

61. Privilege.-A communication is qualifiedly privileged where the person is so situated that it becomes right in the interest of society that he should tell third persons certain facts, and such communication must be made in good faith.-Finkelstein v. Geismar, N. J., 106 Atl. 209.

62. Limitation of Actions-Starting Time.The statute of limitations never applies to express trusts until and from the time the trustee repudiates the trust by unequivocal words or acts, and such repudiation is brought to beneficiary's notice so as to require him to promptly assert his rights.-Keller V. Washington, W. Va., 98 S. E. 880.

63. Malicious Prosecution-Attachment. - To maintain an action for malicious attachment, the plaintiff must allege and show that the attachment was vacated in the action in which it issued on the ground that it was unwarranted by the facts, or that he had no opportunity to make a motion to vacate it.-Furst v. W. B. & W. G. Jordan, Minn., 171 N. W. 772.

64. Marriage Indian Marriage.-A marriage according to the Indian custom, and a living together as man and wife according to such custom, is a lawful marriage, and renders the offspring legitimate.-Meagher v. Hajjo, Okla., 179 Pac. 757.

65. Master and Servant-Imputed Knowledge. -It is only when men of ordinary prudence and observation would have observed, under like circumstances, that a servant's opportunity for knowledge can be held the equivalent of "imputed knowledge."-E..I. Dupont de Nemours & Co. v. Taylor, Va., 98 S. E. 866.

66.- -Independent Contractor.--The building owner or one at whose instance a new party wall is constructed after removal of a single wall on land of the adjoining owner, as authorized by Act June 7, 1895 (P. L. 135), is not liable for consequential damages, where the work was done by an independent contractor, without supervision by the building owner.-Jackman v. Rosenbaum Co., Pa., 106 Atl. 238.

67. Respondeat Superior.-Although automobile dealers allowed their demonstrator to use demonstration car for his own enjoyment,

they would not be liable for injury done by Im Wine so driving the car; he not being in the master's busness in such driving any more than any one who might nire or Dorrow the car.-Van Cleave v. Walker, Tex., 210 S. W. 767.

68. Safe Place and Tools.-A master must use the care which an ordinary prudent man would exercise under the same Circumstances to furnish nis employe a safe place and safe tools and appliances; the degree of care being commensurate with the dangers attending employment.-Clinton & O. W. Ry. Co. v. Dunlap, Okla., 179 Pac. 749.

69. Warning.-The use by a manufacturing company or removable steps leading down to the floor of a boiler room Irom an outer door, without warning to employes that they were removable and were frequently removed for cleaning the floor, held negligence, which rendered it liable for injury to an employe who unknowingly stepped through the door when they were not in place.-Burgess Sulphite Fibre Co. v. Gagne, U. S. C. C. A., 255 Fed. 872.

70. Mortgages-Deed Absolute.-A written deed absolute in terms cannot be changed into a mortgage, except upon allegation and proof that the clause of redemption was omitted by reason of ignorance, mistake, fraud or undue advantage.--Williamson v. Rabon, N. C., 98 S.

E. 830.

71. Foreclosure. Where mortgagee, in foreclosing property, failed to join owner or record, to whom mortgagor had sold premises, as a party in the proceedings, purchaser at foreclosure sale is not entitled to premises as against such record owner.-Hubbard v. Dahlke, Mo., 210 S. W. 652.

72. Fraud.-The mere failure of mortgagee to carry out its alleged oral promise to mortgagors as to indulgence as to time of payment was not actionable fraud, entitling the mortgagors to void their agreement.-Downing Brennan, Mass., 122 N. E. 729.

V.

73. Municipal Corporations-Ordinance. - An ordinance is not a "law" in one sense of the word, but is a local law emanating from legislative authority and operative within its sphere as effectively as general law of the soveregnty. -Choice v. City of Dallas, Tex., 210 S. W. 753.

74. Nuisance-Statute.-A business authorized by the Legislature is not a public nuisance unless the powers granted are negligently exercised.-State v. Riggs, N. J., 106 Atl. 216.

75. Partition-Referee.-A defendant in partition suit, alleged to have no right, title, interest, claim or lien to property, or any part thereof, and who made default, was without interest, and his appointment as referee to make partition held not erroneous.-Meyer v. Eichler, Ore., 179 Pac. 659.

76. Party Walls-Common

Grantor.-Where

deed conveys to center line of party wall, with right to use it as such, and deed from common grantor conveys adoining lot and building to center of wall, subject to other grantee's rights, cross-easements in the whole of the wall are vested in each grantee, and it is a party wall, which each may use as such.-Gates v. Friedman, W. Va., 98 S. E. 892.

77. Patents-Presumption. - While decisions of the Court of Appeals of the District of Columbia in interference proceedings are not conclusive in the courts, they are presumptively correct on questions of fact, and not subject to collateral impeachment, except for gross mistake or fraud.-Webster Electric Co. v. Podelsak, U. S. D. C., 255 Fed. 907.

78. Partnership Agency.-The law of partnership is a branch of the law of agency, the functions, duties and rights of the partners in a great measure comprehending those of agents, and the general rules of law applicable to agents being alike applicable to partners, for each is not only a principal, but also a general and authorized agent of the firm and of each partner for all purposes within the scope and objects of the firm.-Cummings v. S. Funkenstein Co., Ala., 81 So. 343.

79. Powers-Appointment.-A power of appointment, to be exercised by "a written instrument signed, sealed and acknowledged," is

well executed by a holographic will of the person in whom the power was vested, making disposition of the subject-matter thereof, by virtue of Code 1913, c. 77, § 44 (sec. 3869).Ruffner v. Broun, W. Va., 98 S. E. 872.

80. Principal and Agent-Undisclosed Principal. Where defendant was receiving lumber from a partnership in payment of a firm debt to him and without knowing the firm had incorporated, continued to receive lumber from the same parties, they were undisclosed agents of the corporation principal, and where he settled with them he is not liable to the corporation. White v. Kincaid, Cal., 179 Pac. 685. 81. Property-Possession.-The possessor of personal property is prima facie the owner, and the presumption of ownership arising from such possession is not disputable by a trespasser who does not connect himself with the true title.-Birmingham Southern R. Co. v. Goodwyn, Ala., 81 So. 339.

82.

Rewards-Recovery.-The recovery of rewards offered by individuals is governed by the law of contract, and, before recovery can be had, it must appear that party claiming reward knew and acted upon the offer when services for rendition of which the reward is claimed were rendered.-Choice v. City of Dallas, Tex., 210 S. W. 753.

83. Sales-Acceptance.-An "acceptance" implies, not only the physical fact of receiving the goods, but also the intention of retaining them.-Omaha Beverage Co. v. Temp Brew. Co., Iowa, 171 N. W. 704.

84.

-Contract to Remove Building.-Contract by owner of a building, after it was destroyed by fire, accepting an offer for the material, to be removed by offerer, was a sale, and not a contract of hire for demolishing the building.-Marshall v. Louisiana State Rice Milling Co., La.. 81 So. 331.

85. -Guaranty.-A guaranty that an automobile will give good service implies that it is to be handled and driven as automobiles ordinarily are, and given the care and supplied with oil, gasoline, etc., such as are proper to the use and running of such character of machinery-Conner v. Schnell & Weaver, Tex., 210 S. W. 753.

86. Trade-Marks and Trade-Names-Deceptive Practices.-The Coca-Cola Company held chargeable with such deceptive, false, fraudulent and unconscionable conduct in the advertising and sale of its product as precludes a court of equity from granting it any relief in the protection of its trade-mark or business.Koke Co. of America v. Coca-Cola Co., U. S. C. C. A., 255 Fed. 894.

87. Vendor and Purchaser-More or Less.Where sale is for a gross sum and not by the acre, and the acreage stated in the conveyance is qualified by the words "more or less," there is no warranty of the exact quantity.-Ogilvie v. Stackland, Ore., 179 Pac. 669.

88. Waters and Water Courses Surface Water. Where surface waters are discharged upon land of lower owner through a natural channel, the lower owner has no right to interfere with the flow thereof.-Kallenberg v. Long, Cal., 179 Pac. 730.

89. Wills Gift to Class.-A gift to a class exists when instrument creating it directs distribution of aggregate sum to a body of persons designated by some general name, uncertain in number at time of gift, and to be ascertained at a future time, and who are all to take in equal or in some other definite proportions dependent upon ultimate number of perin the class.-Prichard v. Prichard, W. Va., 98 S. E. 877.

sons

90. Revocation.-A will would be entirely valid if it effected nothing more than the revocation of a former will.-Sullivan v. Murphy. Ore., 179 Pac. 680.

91. Restraint on Marriage.-A condition in a will providing that a bequest to the testator's widow be equally divided among testator's chil-. dren in the event that the widow should remarry during the minority of either of the children is not void as a restraint upon marriage. Bryan v. Harper, N. C., 98 S. E. 822.