the lumber was deficient in quality, though plaintiff would not have paid such third persons, if defendant had not approved of the lumber.-FLORIDA ATHLETIC CLUB V. HOPE LUMBER CO., Tex., 44 S. W. Rep. 10.

109. SALE-Fraud of Purchaser-Rescission.-To authorize the rescission of a sale of chattels on the ground of fraud of the vendee, it must appear that the purchaser was at the time insolvent; that he had a preconceived design not to pay for the goods, or no reasonable expectation of being able to pay for them; and that he had intentionally concealed these facts, or made a fraudulent representation in regard to them. —WILK V. KEY, Ala., 23 South. Rep. 6.

110. SALE-Rescission by Seller-Tender. Where a fraudulent purchaser of goods has made a partial pay. ment thereon, but has sold a part of the goods exceeding in value the payment made, and has thus rendered it impossible for the seller to rescind as to the entire purchase, such seller is not bound to return or tender back the payment received as a condition precedent to the maintaining of replevin for the goods remaining unsold.-JOHN V. FARWELL CO. v. HILTON, U. S. C. C., E. D. (Wis.), 84 Fed. Rep. 293.

111. SALE OF LAND-Rescission of Contract.-In the spring; an action by a vendee to rescind the contract of sale of a farm was pending, and he refused to take possession, whereupon the vendor rented the farm until fall. In the summer it was adjudged that the vendee could not rescind, and thereafter he brought a second action for rescission on the ground that the tenant refused to deliver possession, though prior thereto the vendor had assigned to him all the rents: Held, that he was not equitably entitled to a rescission. -GARBES V. ROBERTS, Wis., 73 N. W. Rep. 995.

112. TAXATION-Exemption -Newspaper. Whether or not the publishing of a newspaper is manufactur ing, within the meaning of the statute exempting man. ufacturing corporations from franchise taxes (as to which quare), a corporation which does not own or operate any plant for the printing of its paper, but merely employs an agent to oversee the work done by a contractor, is not engaged in manufacturing, and is not exempt from the tax. -PEOPLE V. ROBERTS, N. Y., 49 N. E. Rep. 248.

113. TAXATION-Partial Illegality.-A tax levied in part for a lawful and in part for any unlawful purpose, but within the legal limits of the power of a city to make such levy, is not necessarily void in toto.-NALLE V. CITY OF AUSTIN, Tex., 44 8. W. Rep. 66.

114. TAXATION-Power of Court of Equity.-The fact that the trustees of a school district whose duty it is to appoint a treasurer to collect a tax have been unable to get anyone to act in that capacity does not author. ize a court of chancery, in a suit brought by a judg. ment creditor of the district for that purpose, to ap. point a receiver to collect the tax; a court of chancery having no power to levy or collect taxes.-GRAND RAPIDS SCHOOL FURNITURE CO. V. TTUSTEES OF SCHOOL DIST. NO. 29, PIKE COUNTY, Ky., 44 S. W. Rep. 98.

115. TAX SALES-Foreclosure-Right to Redeem.-One who, through tax sales, has purchased a mortgagor's equity of redemption of an undivided interest in land, prior to partition thereof and foreclosure of the mortgage, not having been made a party to such proceedings, has a right to redeem the mortgagor's interest as it stood before such proceedings.-ALLEN V. SWOOPE, Ark., 44 S. W. Rep. 78.

116. TRADE LABELS-Fraudulent Use - Injunction.Under St. 1895, ch. 462, § 3, entitled "an act to protect manufacturers from the use of counterfeit labels and stamps," authorizing suits to prevent fraudulent use and counterfeiting of labels by "any person, associa tion or union," a voluntary trade union may bring such a suit.-TRACY V. BANKER, Mass., 49 N. E. Rep. 308.

117. TRESPASS-Surface Water.-A village corporation is guilty of trespass if it collects and gathers up surface water by artificial means, and unnecessarily casts

it upon the premises of an individual in increased and injurious quantities, and for such injury the corpora. tion is liable, and in such case a witness may give an estimate or opinion of the damage sustained.-ROBBINS V. VILLAGE OF WILLMAR, Minn., 73 N. W. Rep. 1097.

118. TRUSTS-Resulting Trusts.-Whether a convey. ance to a wife, with the consent of the husband, by a trustee, who had held the property in trust for him, was an advancement, is a question of intention, though presumed in the first instance to be a provision and settlement; and hence any antecedent or contemporaneous acts or facts may be received, either to rebut or support the presumption.-WALSTON V. SMITH, Vt., 39 Atl. Rep. 252.

119. TRUSTEES-Sale of Land.-A deed naming a son as the grantee, and providing that a certain person shall take possession, as trustee, with the right to sell for the benefit of the son, gives such person authority to convey the land.-WHATLEY V. OGLESBY, Tex., 44 8. W. Rep. 44.

120. VENDOR'S LIEN-Attorney's Fees. - A vendor's lien note may provide for attorney's fees, and the judg ment of foreclosure may embrace the amount due as such fees.-GREEN V. JOHNSON, Tex., 44 S. W. Rep. 6.

121. VENDOR AND PURCHASER-Rescission.-One who sells land and takes notes in payment, and indorses the notes to a third party, who puts them in judgment, loses his right to rescind the sale of the land, and the grantee then becomes the legal owner of the land, subject to the vendor's lien of the holder of the judg ments.-MCCLURE V. BRYANT, Tex., 44 S. W. Rep. 3.

122. VENDOR AND PURCHASER-Sale of Land - Con. tract.-Verbal agreement that within 60 days the vendor would have a patent for the land obtained, and sent with the deed and abstract, conflicts with the contem poraneous written contract, containing an absolute undertaking of the purchaser to make payments at times designated, and the undertaking of vendor to furnish "good abstract and warranty deed," and is in admissible in evidence.-YOUNIE V. WALROD, Iowa, 78 N. W. Rep. 1021.

123. WATERS-Irrigating Canals-Right of Way.-Pos sessory rights to rights of way for irrigating ditches, and the right to the use of water, may each have an existence independent of the other.-ADA COUNTY FARMERS' IRR. Co. v. FARMERS' CANAL CO., Idaho, 51 Pac. Rep. 990.

124. WILLS-Annuities.-Where a will does not charge annuities on the real estate, and the surplus of the personalty is sufficient to pay them, the realty cannot be applied to such payment, though the executrix squanders the personalty.-ALLEN V. MATTISON, R. I., 39 Atl. Rep. 241.

125. WILLS-Devise Over.-Under a devise of land by a testator to his wife for life, remainder to his children, with a proviso that, "in the case of the death of any of my said children without living issue, my will is that property heretofore devised to them shall pass to their brothers and sisters before named or their de scendants," the children living at the termination of the life estate take the absolute fee, the proviso hav ing reference to a dying before the remainder takes effect.-LEE V. MUMFORD, Ky., 44 S. W. Rep. 91.

126. WILLS-Life Tenant and Remainder Men.-Assessments for sewers and curbing are not taxes within the meaning of a devise for life requiring the life ten. ant to "pay all necessary taxes and repairs on the property," and such assessments should be appor tioned between the tenant and the remainder-men.CHAMBERS V. CHAMBERS, R. I., 39 Atl. Rep. 243.

127. WILLS-Provision for Unborn Child.-A will pro viding that an unborn child shall have one-third of an estate if the widow marries either makes a provision for it, or shows that testator intended to make no pro vision for it, within Rev. St. § 2286, providing that, in the happening of either of such contingencies, it must abide by the will.-VERRINDER V. WINTER, Wis., 75 N. W. Rep. 1007.

Central Law Journal.

ST. LOUIS, MO., APRIL 8, 1898.

Considerable mild criticism has been provoked by the recent decision of the Court of Appeals of Kentucky, in Pedigo v. Commonwealth, 44 S. W. Rep. 143. This was a criminal prosecution for arson, wherein it was held that testimony as to trailing by a bloodhound is admissible, where it is established by the testimony of some person, who has personal knowledge of the fact, that the dog in ques. tion has acuteness of scent and power of discrimination, and has been trained or tested in the tracking of human beings, and it appears that the dog so trained and tested was laid on the trail, whether visible or not, at a point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicate to have been made by him; but that it was error to admit such testimony where it did not appear that the dog had been trained or tested. The dissenting opinion of Guffey, J., shows very clearly the danger attending the admission of such testimony.

State

The interesting question recently came before the Supreme Court of Indiana, whether life insurance policies are taxable. Board v. Holliday, 49 N. E. Rep. 14. The court in an elaborate opinion written by McCabe, J., hold that they are taxable. Two of the members of the court dissent from the conclusion. The majority of the court, while not denying that life insurance policies are personal property, say that the statute taxing personal property was not intended to include life policies, since it made no provision respecting the mode of valuation, or of assessment of such property. The legislature alone, they reason, having the power to select subjects for taxation, it follows that where this power is not exercised no other department of the State government can supply the omission. To say that a law taxing personalty covers all forms of personalty is fallacious, in the court's view, since the legislature not only selects subjects for taxation, but prevides regulations or methods for a just valuation, and clothes some person with authority to assure such valuation. Where, therefore, no regulation has been provided as to any particular species of property, such species

cannot be assessed. This conclusion, says the court, may rest either on the inference from such failure to prescribe such regulations that the legislature did not intend to select that particular species as a subject of taxation, or else, regardless of legislative intent, the failure to provide regulations leaves the property unselected, and consequently outside of the powers of the taxing board.

The dissenting judges point out that the legislature has laid special stress on the provision that "all property shall be assessed;" that there is a clause declaring that all property not expressly exempted shall be subject to taxation; that new forms of property are constantly presenting themselves, and as soon as a new species is observed or discovered it is the duty of the taxing officers to assess it. As for rules and regulations, the law expressly vests the board with power to make them.

A question of discrimination by railroad companies in the furnishing of transportation facilities, recently came before the Supreme Court of Arkansas, in Little Rock & F. S. Ry. Co. v. Oppenheimer, 43 S. W. Rep. 150. It was held that a failure on the part of a railroad compary to furnish facilities for forwarding all cotton offered at points on its line where there was no competition, when it furnished sufficient transportation at competing points, in a year when the shipments of cotton were unexpectedly heavy, is not such a case of unjust discrimination as will subject the company to a penalty at the suit of a shipper, under Act March 24, 1887, providing in section 1, "All individuals, associations and corporations shall have equal rights to have persons and property transported over railroads in this State, and no unjust or undue discrimination shall be made in charges for, or in facilities for, transportation of freight or passengers within the State," etc.; and in section 4, "No discrimination in charges or facilities for transportation shall be made between transportation companies and individ

uals, or in favor of either, by abatement,

drawback, or otherwise, and no railroad, or any lessee, manager, or employee thereof shall make any preferences in furnishing cars or motive power," etc.; and in section 12, prescribing a penalty for violations, which may be recovered by civil action by the party aggrieved. Wood and Hughes, JJ., dis sented from the conclusion of the court.

NOTES OF IMPORTANT DECISIONS.

NEGLIGENCE OF LANDLORD-LIABILITY FOR Dangerous PREMISES.-Barman v. Spencer, 49 N. E. Rep. 9, is a well considered case by the Supreme Court of Indiana, on the subject of the liability of landlord for injuries caused by dangerous premises. The holding of the court is, "that where a landlord is obligated, in a contract of renting, to repair a well, and has reserved the right to enter upon the premises for that purpose, and, while thus engaged, negligently leaves the well open and unguarded, he is liable for injuries resulting to an invited guest of his tenant, from his negligence in making the repairs; that a landlord who has not covenanted to repair is not liable for an injury caused by defective premises, while the tenant is in possession; that a landlord who has covenanted to repair may be liable for injuries caused by his failure to repair; that a host, although a tenant, is liable to his invited guest for injuries resulting from a defect in the premises, unknown to the guest, which is caused by the gross negligence of the host; that where the landlord, whether he has covenanted to repair or not, negligently creates a dangerous condition of the rented premises, while making repairs, he is liable to one lawfully on the premises, who, without contributory negligence, is injured by reason of the dangerous condition of the same; and that where a complaint in an action for damages caused by falling into an open well in the dark alleges that the injured party had no knowledge of the dangerous condition of the well, or means of knowing that the cover had been left off, and that, when she previously saw it, it was in a safe condition, and that the injury was caused by the negligence of the defendant, without negligence on behalf of the plaintiff, the complaint is sufficient to admit any evidence showing plaintiff's freedom from contributory fault and the care required to exempt one from the imputation of contributory negligence." The opinion of the court by McCabe is exhaustive of the principal authorities.

SCHOOLS-SUSPENSION OF CHILDREN FOR OFFENSE OF PARENT.-The case of Education v.Purse, 28 S. E. Rep. 896, decided by the Supreme Court of Georgia, has attracted wide attention and involves new questions pertaining to the rights of pupils in public schools. The holding is, "that a board of education having the charge and control of a system of free schools established by law, and supported by taxation, has the right to suspend from attendance school children whose parent, whether father or mother, in undertaking to call in question or interfere with the discipline of a teacher over one of these children, enters the schoolroom of such teacher during school hours, and, in the presence of the scholars there assembled, uses offensive or insulting language to such teacher, though none of the children so suspended had in fact been guilty of any violation of the

rules of school. The fact was that the mother of certain children, in attendance upon a public school, went to the schoolroom during a session, and by outspoken criticism upon the methods therein employed, and offensive language, 'seriously interfered with the discipline of the school.' The controversy seems to have been very seriously prosecuted, and the supreme court takes the position that the board of education had the right to suspend the children because of their parent's act. The opinion of the court, per Cobb, J., reviews at great length the history of what may be called the law of education."

APPEAL-BILLS OF EXCEPTIONS-TIME OF MAKING-TERM TIME.-A question of practice arose in the case of Winter v. People,decided by the Supreme Court of Colorado, which will be of interest in many of the States having similar statutes as to the time within which bill of exceptions for an appeal must be signed and filed. The court held that under the Code respecting bills of exceptions providing that "it shall be the duty of the judge to allow the same, and to sign and seal the same, at any time during the term of the court at which exceptions were taken, or at any time thereafter to be fixed by the court," the trial judge was without authority to make an order extending the time within which a bill of exceptions could be tendered and filed, at chambers, and after the expiration of the term at which final judgment had been rendered and an appeal therefrom prayed and allowed. The court said, in part: "The office and purpose of a bill of exceptions are to preserve in, and make a part of, the record, such matters as transpired in the progress of the trial that otherwise would not become a part thereof. It is to bring into the record matters which are not parts of the record proper. Elliott, App. Proc. § 797; Hake v. Strubel, 121 Ill. 329, 12 N. E. Rep. 676. Ordinarily, the making of a bill of exceptions is spoken of as a judicial act, although there is apparently some conflict of authority on this point. The seeming conflict, however, is, in our opinion, more apparent than real. Properly speaking, the making of a bill of exceptions includes the settling, allowance, signing and sealing by the judge. It is a complex act, of which the settling and allowance are generally held to be judicial in their character, while the mere signing and sealing may be ministerial. Hake v. Strubel, supra; Elliott, App. Proc. § 798. In this State the act, perhaps, assumes more of a ministerial character than usual, from the fact that, in case of the refusal of a judge to sign, the bill may be preserved by the affidavits of attorneys or other parties present at the trial. However this may be, and whatever distinction may be attempted to be drawn as to the character of the various acts which together constitute the act of making a bill of exceptions, there is no dispute that in this State the act fixing the time beyond the term of court within which the bill may be filed is wholly judicial. The Colorado Code (sec

tion 385) provides, in reference to bills of exceptions, that it shall be the duty of the judge to allow the same, and to sign and seal the same at any time during the term of the court at which such exceptions were taken, or at anytime thereafter to be fixed by the court.' It will be seen that it is the duty of the judge to allow, sign and seal the bill, but the power to fix the time beyond the term of the court when this may be done is vested expressly in the court. This order is, therefore, unquestionably, a judicial act. From this section is derived the only authority for the making of a bill of exceptions after the close of the term at which final judgment was rendered. Without its provisions, suitors would be compelled to tender their bills, and have them signed and sealed, during the term. Our supreme court has said, in Gruner v. Moore, 6 Colo. 530: As a general rule, all judicial business must be transacted in term, whether there is any express direction to that effect or not. Such judicial business as may be done by the judge out of court is exceptional. and must find its warrant iu some express provision of the statute.' It would seem to necessarily follow, therefore, that an order fixing the time within which a bill of exceptions may be presented being a judicial act, an order extending this time would be, in effect, a new order, also a judicial act, and could not be made after term, unless allowed by statute. We know of no provision of the statutes or of the Code which will permit it. It clearly does not come within the terms of Code, § 408. That applies only to motions and orders in causes then pending in the court presided over by the judge who attempts to act. It has no application to the case at bar, which had proceeded to final judgment, and in which an appeal had been prayed and allowed. To have been effective, the order of extension must have been incorporated in the record as of proceedings had and done at the preceding term. It is manifest that under no principle of law could the judge have authority to do this-to make a record of proceedings which were never had, and of a cause at a term which had expired. Hake v. Strubel, supra, is directly in point, involving the same identical question, and based upon the same facts. The existence of the rule, and the reason for it, are so aptly expressed that we quote from the opinion: The question we are asked to determine has relation to the power of a circuit judge, out of term, to open and change the record of a court held by him, and also to the character of the act of a judge in approving, signing and sealing a bill of exceptions in vacation, and whether the allowing and signing of a bill at such time thereby make the matters contained therein part of the record. It seems to us, the question of power is not an open one, or the rule of practice doubtful. When the February term, 1886, of the St. Clair circuit court ended by final adjournment, the record was closed, and the presiding judge lost control over it. Up to that time the record had remained under his control, and might

be changed by him according to his judicial will; but, when once the term of the court ended, the record of the court, as made in term time, became fixed and unalterable, except as it might be changed in the mode and manner known to the law. This principle is fundamental, requiring no citation of authority in its support; and any departure therefrom would inevitably entail consequences dangerous to the administration of justice, and injurious to all litigants. The mak

ing of the order allowing appeal, and fixing the amount of the bond, and the time in which the bond and bill of exceptions in the cause shall be presented and filed, is a judicial act, which can only be performed by the judge in term time, and when sitting as a court. The making of the order is an exercise of the judicial power vested in the presiding judge, but the order, when made, is the order of the court. If, then, the original order of appeal, providing, inter alia, within what time the bill of exceptions in the cause might be presented and filed, was a judicial act, which could only be performed by the judge in term time, and when sitting as a court, as we have seen is the case, it follows that the act of changing such an order by entering another order, extending the time in which the bill of exceptions in the cause might be presented and filed fourteen days, would be of the same judicial character-an exercise of judicial power-and such an act could be performed by a judge only in term time.' The same principle is affirmed in Missouri and Indiana. Duvall v. Mastin, 28 Mo. App. 527; Rigler v. Rigler, 120 Ind. 431, 22 N. E. Rep. 776. We have been cited to some decisions in ather States, as bolding a contrary view. An examination of them shows that they were based upon statutes peculiar to those States. In Nebraska there was a statute giving to the judge who tried the cause power, in certain cases, to extend the time within which the bill could be filed. Greenwood v. Cobbey, 24 Neb. 651, 39 N. W. Rep. 833. The cases cited from California were criminal cases, and it seems that there was a special statute in reference to bills of exceptions in criminal causes, and that it was directory, merely. The supreme court of that State, in construing this statute, said: "The phraseology is different from that of the practice act in reference to like provisions in civil cases, and the reason of the rule is likewise different,' People v. Woppner, 14 Cal. 438. Oregon has a statute similar to that of California, and it followed the decisions of that State. Che Gong v. Stearns, 16 Ore. 221, 17 Pac. Rep. 871.

"Counsel for defendant insist that the question raised by this motion is merely technical, that it does not go to the merits of the case, and therefore inasmuch as the trial judge signed and sealed the bill, this court will assume that it was signed in time. We fail to see how we can do this, when the record itself shows that it was not signed in time. Nothing can be treated by this court as merely technical, and therefore subject to be disregarded at will, which is prescribed by statute as

the mode for exercising this court's appella te jurisdiction. Elliott, App. Proc. § 128; U. S. v. Curry, 6 How. 113."

JUDGES LIABILITY FOR JUDICIAL ACTS.-In Blincoe v. Head, 44 S. W. Rep. 374, decided by the Court of Appeals of Kentucky, it was held that a police judge, whose court is one of special and limited jurisdiction, acts without jurisdiction in issuing an attachment without the affidavit or bond required by the statute, and is liable to the defendant therefor, especially where he is both judge and clerk, and therefore acts also as a ministerial officer. The court said in part: "In the case at bar, not only was the court one of inferior and limited jurisdiction, but it was exercising an extraordinary power, under a special statute prescribing the occasion and mode of its exercise. Nothing in favor of jurisdiction is to be presumed, and a strict conformity with the statute granting the power must be shown; and, as the defendant was not before the court, the writ, and all the proceedings under it, are coram non judice and void. The same author says upon this subject (page 73): 'And no court exercising a special and limited power can so determine its right to take jurisdiction through that power, in a given case, as to preclude one not a party to the proceedings from questioning that right in a collateral inquiry; for, as the validity and conclusiveness of the decision on that point must depend on the authority of the court to make it, the decision cannot be conclusive evidence of that authority. This would be saying that the court had jurisdiction to decide, because it had decided that it had jurisdiction.' And in Cooley, Torts, pp. 416, 417, recently quoted with approval in Glazar v. Hubbard (Ky.), 42 S. W. Rep. 1114, it is said: 'A judge is not such at all times. and for all purposes. When he acts he must be clothed with jurisdiction; and, acting without this, he is but the individual falsely assuming an authority he does not possess. The officer is judge in cases in which the law has empowered him to act. and in respect to persons lawfully brought before him; but he is not judge when he assumes to decide cases of a class which the law withholds from his cognizance, or cases between persons who are not, either actually or constructively, before him for the purpose. Neither is he exercising the judicial function when, being empowered to enter one judgment, or make one order, he enters or makes one wholly different in nature. When he does this he steps over the boundary of his judicial authority, and is as much out of the protection of the law, in respect to the particular act, as if he held no office at all. This is a general rule. *** Most of the officers who exercise an inferior authority have no jurisdiction at all until certain preliminary action has been taken, which is particularly pointed out by s'atute; and neither in their case, nor in the case of the inferior courts, will any intendment of law be made in favor of jurisdiction when their action is called in question, but they must show

by their written records that the circumstances existed which authorized them to act.'

"But in the case at bar the police judge was both a judicial and a ministerial officer. Having practically the same jurisdiction as a justice of the peace, he was both judge and clerk; and in the issuance of the order of attachment, whereby Blincoe was prevented from collecting the wages due him, he was acting as clerk-a ministerial officer. And the record discloses that he undertook, in direct violation of the statute, to exercise a special and limited power, without the preliminary acts being performed which alone could give him authority to act. If the clerk of the circuit court were to issue an attachment under such circumstances, without any affidavit being made or bond executed, can it be doubted that he would be liable for the injury which might result therefrom to the defendant in the attachment? In Connelly v. Woods, 31 Kan. 359, 2 Pac. Rep. 773, the court held that the justice had the right to rely upon the truthfulness of the affidavit, and was not bound to know at his peril that the affidavit was true, and that the justice had jurisdiction to issue the order. But this jurisdiction, we think, was merely the jurisdiction of a ministerial officer. and not that of a judicial officer. * ing of ministerial officer who exercise a quasijudicial function as assessors, Judge Cooley says: 'But where an officer is to proceed upon evidence in writing, and the statute points out what this evidence shall be, it intends that it shall be found of record in the proper office, and not that important public matters shall be left to uncertain parol testimony.' Even assuming that Head was acting judicially, and not ministerially, in issuing the order of attachment, 'it is universally conceded that, when inferior courts or judicial officers act without jurisdiction, the law can give them no protection whatever.' Cooley, Torts, p. 419."

Speak

WILL-BEQUEST FOR CELEBRATION OF MASSES -SUPERSTITIOUS USES.-The Supreme Court of Kansas decides, in Harrison v. Brophy, 51 Pac. Rep. 883. that a bequest of a sum of money made in the will of a member of the Roman Catholic church to a priest of such church, for the cele bration of mass for the souls of the testator and another, will be construed as a gift direct to the donee, with an injunction to the performance of the ceremonial named, and not as made to him in trust for such purpose, and therefore void, because incapable of enforcement by beneficiaries in being, and that the English common law which avoided bequests of the kind above stated, as being for superstitious uses, never became a part of the law of this country; and the validity of the gift for the purpose named is therefore upheld. The court says in part: "The will does not uudertake to create a trust. The gift is absolute to the person named. The language in which it is made is advisory, persuasive, expressive of desire. 'precatory, as called in the law of wills, but the passing of the gift is not conditioned upon the