RÉSUMÉ OF THE DECISIONS PUBLISHED IN THIS BOOK. SHOWING the Changes, Progress and Development of the Law during the Second Quarter of the Judicial Year Beginning with Oct. 1, 1890, Classified as Follows: I. GOVERNMENTAL AND POLITICAL RELATIONS. II. CONTRACTUAL AND COMMERCIAL RELATIONS. IV. DOMESTIC RELATIONS. V. TORTS; NEGLIGENCE. VII. CIVIL REMEDIES. VIII. CRIMINAL LAW AND PRACTICE. I. GOVERNMENTAL AND POLITICAL RELATIONS Police Power; Personal Rights. An order to kill a horse, under Massachusetts Statute, because infected with farcy or glanders, will not justify one who kills the horse if he does not have the disease. (Mass.) 116. The police power of a city extends to the prevention of the use of land for a graveyard, although dedicated for that purpose, when necessary for the health of the inhabitants, although the city in its capacity as trustee had no power to change or destroy the use of the land as a graveyard. (Cal) 627. Another phase of the question as to the validity of State Prohibitory Laws as applied to sales of liquors in the original packages in which they were imported from other States is presented by a decision that a State Prohibitory Law is not entirely unconstitutional because it makes no exception of such liquors, although it does except liquors imported from foreign countries. (Mass.) 442. It extends also to the filling up of wells on premises where bread is made for public use. (La.) 135. Also to an ordinance which prohibits keeping more than five barrels of petroleum, naphtha or any infiammable or explosive oils within the city. (Ind.) 187. An ordinance prohibiting the sale of cider which is not intoxicating in quantities less than a gallon, and forbidding the drinking thereof at the place of sale, is valid under authority to make ordinances expedient for maintaining the peace, good government and welfare of the city. (Kan.) 520. The Wilson Bill, subjecting original packages of intoxicating liquors to the laws of any State into which they are taken, is not an unconstitutional delegation of power. (U. S. C. C. S. D. Iowa) 446; (U. S. Č. C. E. D. Ark.) 451. A State Prohibitory Law is made valid as to original packages from another State, by the Wilson Bill. (U. S. C. C. S. D. Iowa) 446; (U. S. C. C. E. D. Ark.) 451. Contra (U. S. C. C. D. Kan.) 444. Prior to the Wilson Bill original packages of imported liquors, without regard to their size, were exempt from a State Prohibitory Law until sold in the State. (Kan.) 616. Small bottles containing intoxicating liquors, each wrapped in paper and labeled "Original Package," themselves constitute original packages, although packed by the carrier in an open box to facilitate shipment; but the box is the original package if the bottles are packed in it by the shipper. (Ala.) 430; (S. Dak.) 432. Imported oleomargarine in original packages can be sold without state interference. (U. S. C. C. D. Minn.) 830. The invalidity of state interference with interstate commerce is illustrated, and the rule well stated, in the case of a book agent carrying a sample book, who took orders from house to house for a principal in another State, from which the books were to be sent. An ordinance prohibiting such sales was held void. (Ind.) 357. Highways. The power of a village to compel sidewalks to be kept free from snow is upheld, and a penal ordinance against allowing it to remain on walks so as to impede travel later than 10 o'clock on the day after it falls, or more than two hours after notice to remove it, is valid. (N. Y.) 178. Electric light companies are not necessarily entitled to place posts in highways by virtue of a Statute giving the same rights enjoyed by telegraph companies "as far as applicable," even if the telegraph company has such right. (Mass.) 497. Rights of abutting owners in a street are held in Minnesota to extend to an easement to the full width of the street for purposes of access, light and air, and cannot be taken for public use without compensation. (Minn.) 268. A New Jersey decision is similar in effect, and holds, also, that twenty years' inclosure of a portion of a street will not defeat the right of an abutting owner to light, air and prospect over it. (N. J.) 276. The power of park commissioners to take possession of a street or streets to connect a park with any part of a city is not exhausted in any city by a single exercise. (Ill.) 215. (GOVERNMENTAL AND POLITICAL RELATIONS.) A decision of interest to many street railway companies and cities is that in which it is held that the duty of such a company under a contract with the city to "repair" a portion of a street does not impose an obligation to pave or re-pave that part of the street or pay therefor, although directed to do so by an ordinance. (Ind.) 770. Municipal Corporations. Power of a city to manufacture gas or electricity for streets is not implied in a grant of power to maintain street lamps. (Mass.) 397. A city is liable in damages for failure to furnish water for which payment has been made in advance. (Mass.) 122. A statute authorizing a town to pay a claim which constitutes only a moral obligation will give no right of action against the town without a subsequent contract to pay it, and a vote by the town to pay it is not an offer which will constitute a contract if accepted. (Mass.) 202. The constitutionality of a Local Option Law and all various provisions in such an Act is extensively discussed in a Michigan decision holding that there is no unconstitutional delegation of power in the Act. (Mich.) 69. "Unanimous consent of the council" means all those present and acting, whether a bare quorum or more, and not of every member of the council. (Fla.) 158. The exemption of public property from taxation applies to property held by the regents of the University of Michigan. (Mich.) 376. The exemption of property held by a corporation for educational purposes does not extend to premises used as the home of teachers, whose duties were almost entirely performed in a parochial school held in a church adjoining and controlled by clergymen of the parish, (Mass.) 573. The exemption by charter of cemetery lands from taxation extends to lands subsequently acquired under authority of the Legislature, and is not affected by the fact that a dwellinghouse and barn are on the land used by the corporation and its superintendent. (Mass.) 365. Deductions from the property of a bank subject to taxation under the Ohio Statute cannot include cash and cash items in possession. (Ohio) 197. Mortgages of a mutual building association are taxable where the stock is not taxed. (Minn.) 752. A legacy to an illegitimate son is subject to the Pennsylvania Collateral Inheritance Tax, although by Act of the Legislature he was in the testator's lifetime made the heir of the latter. (Pa.) 241. Taxes on gross earnings of a railroad are upon its property within a rule which requires a lessor to pay taxes on such property. (Vt.)562. A state law taxing railroad earnings from interstate commerce is unconstitutional. Id. duct taxes taken from the rent does not impair An act requiring a lessee of a railroad to de and lessee and the rent due are proper subjects the obligation of a contract where both lesson for taxation. Id. Using a tax on dogs, collected in a city, to pay for sheep killed by dogs in adjacent territory may be authorized by statute." (Mich.) 43. A monthly license fee of $5 for vending fresh meats at private markets is held not ex cessive as a tax for revenue. (Fla.) 158. A lien on real estate for taxes on personal property under Iowa Code, § 865, is superior to prior liens of individuals on such realty. (Iowa) 478. The lien of a drainage assessment in Illinois attaches to the land itself and is paramount to a prior deed of trust. (Ill.) 285. A municipality which has received the amount of an assessment for a public improvement on a sale of property cannot re-assess it for the improvement, although the first sale was invalid, as the purchaser buys under the rule of caveat emptor. (N. Dak.) 165. Jurisdiction; Courts. A conviction by a court held at a de facto county seat is not void because the removal of the county seat was illegal. (Colo.) 790. The original jurisdiction of the Supreme Court of South Dakota includes power to issue a writ of certiorari under regulations prescribed by law when the sovereignty of the State, its franchises or prerogatives, or the liberties of its people, are involved. (S. Dak.) 588. A citizen has a constitutional right to proceed in a circuit court of the United States against citizens of another State to punish them for contempt of a decree of that court. (U. S. C. C. S. D. Ga.) 317. Both a court and its receiver are bound by a writ of prohibition addressed to the court enjoining interference with property. (Cal.) 650. A mixed and scrambling possession of a receiver is not sufficient to justify his disobedience of a writ of prohibition against interfering with it, but on the service of such he must decide at his peril whether or not his authority is valid. Id. The investigation of a charge by the grand jury does not suspend a pending prosecution before a recorder in New Orleans. (La.) 137. Judicial notice of the laws of another State cannot be taken by a state court, but the presumption is that they are the same as the laws of its own State. (Wis.) 367. A conspiracy to murder cannot be punished by a federal court, unless the murder is in violation of a United States statute. (U. S. C. C. S. D. Ga.) 317. (CONTRACTUAL AND COMMERCIAL RELATIONS.) Voters and Elections. A statute making the voters' personal appearance to register on one of three days in a certain month a condition precedent to voting is unconstitutional. (Ky.) 224. The Pennsylvania Statute requiring a nonregistered voter to prove by affidavit certain facts before voting is held constitutional. (Pa.) 228. Such an affidavit must be sufficiently specific to show on its face a right to vote and to form the basis of perjury if willfully false. Id. An elector who cannot be deprived of his right to vote by non-registry under the Pennsylvania Constitution is a duly qualified elector. Id. Negligence or misprision of an election officer will not defeat an elector's right to vote. Id. Anything written or printed on a ballot to make voting possible or practicable, such as the word "judiciary" on ballots for a judge, and not to disclose for whom the voter votes, does not violate a secrecy of the ballot or a statute against putting any mark or device on it. (Wis.) 155. Ballots on which the word "citizen" is printed, instead of the name of the party issuing them, when there is no citizen's party, are void under the Connecticut Election Law, re quiring the name of the party to be printed thereon. (Conn.) 150. A provision that all ballots shall be of uniform color and size does not abridge a voter's rights. (Mich.) 171. Blind persons and cripples are entitled to assistance in the preparation of ballots, under a law providing that each voter must pass alone through a booth in which he must prepare his vote, if it does not expressly prohibit such as sistance. Id. Booths must be constructed to secure a secrecy in the preparation of a vote, but not in depositing it, so as to obstruct the view of the public. Id. Other provisions of the Michigan Election Law construed. Id. Officers; Contests for Office. Recognition of a board of managers of a charitable institution of a certain person as a member will give him no title to the office of secretary if he was not in fact elected manager, although the board had power to fill vacancies. (N. Y.) 381. Members of school committees are not "officers of local police," who must be elected by the towns under the Connecticut Constitution. (Conn.) 83. The speaker of the House of Representatives may be compelled by mandamus to open and publish election returns as required by law on the organization of the House. (Neb.) 796. The necessity of the signature of the lieutenant-governor and the speaker of the House of Representatives to a concurrent resolution under the Nebraska Laws for the determination of an election contest is not affected or excused by the fact that their own offices are contested and included in the investigation. (Neb.) 803. Statutes. not make the remainder void if they are not so The invalidity of one part of a statute will inter-dependent that one part would not have been enacted without the other. (Ohio) 196. Statutes of another State will be construed as the courts of their own State construe them. (N. J.) 784. corporations does not apply to a will made by A Statute restricting bequests to religious a nonresident in his own State. (Mass.) 766. Alteration of the wards of a city by special legislation is unconstitutional. (N. J.) 700. By an unusual application of the rule of construction of words in statutes the word "shail" is construed to mean "may" in a case concerning the duty of aldermen to locate posts for telegraph companies. (Mass.) 497. Schools. Separate schools for Indians, excluding negroes, may be established. (N. C.) 823. A school board cannot hire a superintendent for a term beginning after the office of some of the members will expire. (Ark.) 186. Consent of school directors to a written contract by the president employing a teacher is presumed where they permit services to be performed under it. (Iowa) 273. II. CONTRACTUAL AND COMMERCIAL RELATIONS. Assignments. The question whether a payment of money due on interest coupons extinguishes them is discussed in a case where it was made by one not obliged to pay it, but who was the agent of the party from whom the coupon was purchased, and indorsed "without recourse" and the transaction held to be a transfer or assignment of the coupon. (Kan.) 754. An assignment of a contract does not relieve the assignor under the California Statute without consent of the other party. (Cal.) 369. The right of a married woman to assign a policy of insurance on her husband's life is thoroughly discussed by a New York decision, which holds that the right does not exist unless conferred by statute, and she cannot be estopped by her covenants from denying the validity of such assignment. (N. Y.) 259. A laborer's claim against stockholders for wages due him by a corporation is assignable. (Wis.) 205. Negotiable Paper. The commercial quality given by statute to a note payable at a bank is not destroyed by the fact that the bank is the payee. (Ind.) 46. A striking case as to the good faith of purchasers of negotiable paper holds that the jury were entitled to find that a bank cashier who had purchased a note of a farmer whom he knew never engaged in any business requiring paper of that amount to be discounted, and which was executed two hundred miles from home, could not be held to have acted in good faith when he bought it at a usurious rate of interest from a stranger without any inquiry as to the origin of the paper, or the existence of equities in favor of the maker. (N. Y.) 676. (CONTRACTUAL AND COMMERCIAL RELATIONS.) A notice of protest duly sent by mail and reconveyance. delivered next day to the indorser's wife at his place of residence is sufficient, although it was taken from the mail bag in violation of a postal regulation. (Cal.) 545. Authority of a bank to apply deposits to its own unmatured notes against the depositor terminates at his death. (Mont.) 45. Statute of Frauds. The requisites of a contract for the sale of land are shown by a decision holding a contract insufficient which did not show the vendor or identify the property clearly. (Kan.) 835. A memorandum of a sale of land, which refers to additional terms besides the cash price stated, not evidenced by writing, is insufficient. (Ga.) 108. Another case holds that a memorandum merely naming persons as auctioneers, without otherwise naming or describing the vendors of lands, is insufficient. (Mass.) 815. Part performance of an oral agreement to convey an interest in land to a co-tenant is not shown by completing the purchase of the shares of other co-tenants under separate agreements with them. (Mass.) 763. Carriers Contracts. A connecting carrier which makes a new contract with the insured carrier for carrying the goods is not entitled to the benefit of provisions in the original bill of lading. (Wis.) 145. A stipulation by a carrier for exemption from liability for delay occasioned by a mob or strike is valid. (Tex.) 419. The balance of freight due may be collected of a consignee, though only a factor, who concealed the real value of the goods from the carrier, although he paid on delivery of the goods all the freight claimed. (U. S. D. C. S. D. N. Y.) 814. The attempt of a railroad company to discriminate between hackmen, which has been held illegal in several other cases, is again decided to be void on grounds of public policy. (Mich.) 819. Conveyances of Land. An acknowledgment is held not to be insufficient for lack of the words "in and for said county" after the name and title of the justice of the peace who took it, where the State and county appeared in the caption. (Kan.) 857. The necessity that a conveyance of a homestead shall be signed and acknowledged by the wife is not altered by the fact that the conveyance is from her husband to herself. (Ill.) 220. A conveyance by one tenant in common by metes and bounds may be given effect so far as possible without injury to other co-tenants. (S. C.) 55. A deed of a right of way not naming the width will give only what is actually taken and used, and not the full width allowed by law. (Ind.) 48. The effect of delivering a deed to the grantee upon a conditional agreement to return it, or, if it should be recorded, reconvey the land, is beld to be in any case a conveyance of the legal title; but the grantor cannot maintain an action at law for the purchase money so long as he remains the equitable owner with a right to (U. S. C. C. S. D. N. Y.) 469. An oral agreement with intent to consummate the transfer by surrender by the grantors will not in such case be effectual. Id. The acceptance by an incorporated school of a legislative grant of lands, with no reservation of the right to alter, modify or repeal it, constitutes it an executed grant which the State cannot recall, although it was made without consideration. (Vt.) 405. A vendor cannot recover in ejectment or in he cannot furnish a good title, or, after acquir summary proceedings for nonpayment when ing such title, without first giving notice thereof and demanding payment. (Mich.) 465. Covenants. There is an implied covenant to pay $2,000 in case of returning to practice a profession in a certain place, where there is an express covenant never to return so long as the other party is practicing there, provided that after five years he may do so, on payment of that sum. (Mass.) 768. Indian will not carry an after-acquired title by Covenants of warranty in a void deed by an estoppel. (U. S. C. C. D. Kan.) 132. An outstanding lease not excepted by a deed is a breach of a covenant against "all incumbrances whatever." (Mich.) 659. (See next paragraph). Fire Insurance. The meaning of the word "incumbrances" in an insurance policy, although such contracts are construed very strictly against the insurer, is held to include a provision in the deed to the insured binding him to support the grantor during life to the extent of one half the proceeds of the farm, and providing for foreclos ure in case of default. The fact that neither insured nor insurer may have believed this to be an incumbrance is immaterial. (Ind.) 843. No request for arbitration is necessary to prevent an action on a policy providing for arbitration "at the written request of either party" where arbitration has not been waived. (Mass.) 558. The use of an engine and boiler placed near a corn crib to run a corn sheller avoids a policy on the corn providing that it shall be void in case of any change in the exposure. (Iowa) 359. A conveyance by a husband to his wife of a homestead, which is ineffectual to pass any estate, will not affect a policy of insurance which would be avoided by any change in the title. (Ill.) 220. Tender of only part of the unearned premium with a policy in another company is not sufficient to terminate a policy by refunding the unearned premium. (Cal.) 144. The effect of re-insurance is discussed in a Massachusetts case, which decides, among other things, that the original insurer has power to assent to the transfer of the policy. (Mass.) 423. The question of the insurable interest of a stockholder in specific corporate property seems to be, strangely enough, almost a new one, but a New York case, following 31 Iowa, 461, decides that such interest is insurable. (N. Y.) 684. (CONTRACTUAL AND COMMERCIAL RELATIONS.) Marine Insurance. Insurance collected by a trustee to whom a bill of sale of part of a vessel is given as security for a debt to another does not inure to the debtor's benefit. (Mass.) 495. Life and Accident Insurance. A benefit certificate payable to certain named children will not be enlarged to include a posthumous child born of a marriage contracted after the certificate was issued. (Iowa) 863. Hunting for recreation is not pursuing a "hazardous occupation" within the meaning of an accident insurance policy. (Ill.) 383. A statement by an applicant for insurance that he had not during a certain period consulted a physician or been prescribed for will violate the policy, based on the truth of his answers in the application, if he had consulted a physician and received such aid, advice or assistance as the physician deemed necessary, whether he needed any treatment or not. (Mass.) 666. Notice of the nonpayment of an order given for insurance premium by an ignorant negro was held necessary where the insurance was solicited by an agent, who took the order and delivered the policy without reading it to the insured. (Tenn.) 534. Acceptance of premium on several occasions after maturity, when the insured was in good health, will not prevent the forfeiture of a policy by a subsequent default, during which the insured died. (Pa.) 577. The promise of an insurance agent, after default, to receive premium up to a certain day is nudum pactum. Id. Agency. The rule that an agent cannot buy from himself his principal's property is applied, by a Michigan decision, to an administrator who fills a deed sent him by one of the heirs with his own name, when an expected purchaser refuses to take it. (Mich.) 660. The power of insurance agents to employ clerks who, in their proper sphere, can bind the insurer, is affirmed notwithstanding a provision of the policy that only commissioned agents shall be considered as agents of the insurer in any transaction. (N. Y.) 609. The resident manager of a foreign corporation may be presumed to have authority for all usual dealings necessary in the business, in the absence of notice that his powers are restricted, and the by-laws of the corporation are not constructive notice. (N. Y.) 355. A broker who undertakes to sell a house and lot, but sells only the house and leases the lot upon a reserved ground rent, is entitled to commissions only on the cash actually received. (Md.) 103. Principal and Surety. Liability of sureties on the bond of a bank cashier and the effect of various defenses are considered in a Maryland case. (Md.) 552. Bailment. An important case as to the liability of merchants for garments of customers laid off in the store to try on new ones decides that the merchant is a bailee, and is bound to exercise some care over such garments. (N. Y.) 481. Sale. The loss of chattels before maturity of a note given for their purchase price, on condition that title remains in the vendor until the note is paid, will not cancel liability on the note. (N. C.) 526. The right to retake property shipped to be paid for on arrival is not lost because the purchaser received the goods, paid the freight and stored them, notifying the seller that he could not pay, although an attachment of the goods against him is made before the seller begins an action to recover them. (Kan.) 314. Arbitration. Reference of questions relative to the execu tion of a contract does not give the arbitrator jurisdiction to decide a question of law as to the effect of failure to have preliminary work done ready for the contractor at the time agreed. (U. S. C. C. E. D. Mo.) 826. Illegality; Fraud. The rule that a party can have no remedy on an illegal transaction defeats recovery for intoxicating liquors shipped into a State which has a Prohibitory Law, where the seller, in order to avoid it, forwards the liquors to a fictitious assignee and furnishes false invoices to aid in the commission of perjury by a pharmacist, to whom they are sold. (U. S. C. C. S. D. Iowa) 439. Unsuccessful attempts to commit suicide do not show incapacity to make contracts. (Ky.) 223. A lessor has no right of action on a contract between third persons to form a corporation and assume the lease, where there was no un |