87. MUNICIPAL CORPORATION - Constitutional LawSpecial Assessments.—A statute authorizing municipal authorities to drain, fill, or grade lots or pieces of ground within the corporate limits, "so as to prevent stagnant water, banks of earth, or other nuisances accumulating or existing thereon," and providing for the assessment of the entire expense of the improvement against the property so drained, filled, or graded, is not in violation of the provision of the constitution relat. ing to special taxation for local improvements. The enactment of such a law is a warranted exercise of the police power of the State.-HORBACH V. CITY OF OMAHA, Neb., 74 N. W. Rep. 434.

88. MUNICIPAL CORPORATION Dedication.-When lands have been dedicated to public uses, the munic. ipal corporation within which they lie, as the representative of the public in which the right of possession inheres, may maintain an action of ejectment therefor. -WEGER V. INHAB. OF TOWNSHIP OF DELRAN, N. J., 39 Atl. Rep. 730.

89. MUNICIPAL CORPORATIONS

Powers.-The com. mon council of Dover is without power to grant leave to a corporation organized under the general law of this State, entitled "An act concerning corporations," to lay gas pipes and operate a gas plant in Dover.STATE V. MAYOR, ETC., OF DOVER, N. J., 39 Atl. Rep. 705. 90. MUNICIPAL CORPORATIONS-Voluntary PaymentRecovery. Where a town board allows an illegal claim against the town, having no authority to pass on its validity, the act is void; and the voluntary character of the payment is no defense to a suit by the town to recover the money which has been thus illegally paid. -WARD V. TOWN OF BARNUM, Colo., 52 Pac. Rep. 412.

91. NEGLIGENCE-Personal Injuries.-A boy of 17 1-2 years, who, out of curiosity, goes upon the premises of a railroad company to witness the accidental burning of a train of tank cars, filled with petroleum, assumes the risks of the situation; and, though he voluntarily renders some services in preventing the spread of the fire to other property, he cannot recover against the company for injuries caused by an explosion of one of the cars.-CLEVELAND, ETC. RY. Co. v. BALLENTINE, U. S. C. C. of App., Seventh Circuit, 84 Fed. Rep. 935. 92. OFFICE AND OFFICERS - County Treasurer-Com. pensation.-A salaried county officer, for the performance of the duties of his official position, and service which he performs voluntarily as such officer, by request of the governing body of the corporation, is entitled to his salary only.- QUAW v. PAFF, Wis., 74 N. W. Rep. 369.

93. PLEADING Damages. A recovery may be had, under a general allegation of damages, for all injuries which necessarily follow as results of the act the sub ject of complaint. They need not be specially pleaded, and this is applicable to necessarily resulting permanent effects of the injuries.-CITY OF HARVARD V. STILES, Neb., 74 N. W. Rep. 399.

94. PLEADING Ejectment Inconsistent Defenses.In ejectment, after foreclosure by the purchaser at the foreclosure sale, a defense setting up that there had been a valid extension of the time of payment of the note which had not yet expired, of which plaintiff had notice before the sale, is not inconsistent with a gen eral denial contained in the same answer.-FISHER V. STEVENS, Mo., 44 S. W. Rep. 769.

95. PLEDGES-Transfer by Pledgor.-A swindler bor. rowed money from plaintiff, and gave defective diamonds as security. After his arrest, plaintiff delivered the stones to a detective, to be used in evidence. The swindler then agreed with defendant, from whom he had also fraudulently procured a loan, that the stones should be delivered to her, to apply on a note which he had given her: Held, that plaintiff had a prior lien on such stones.-SCHOYER V. LEIF, Colo., 52 Pac. Rep. 416. 96. PRINCIPAL AND AGENT-General Agent - Authority.-A milling company, which gives an agent authority to sell its flour to all persons wishing to buy within certain territory, constitutes him its general agent for

that purpose.-POTTER V. SPRINGFIELD MILLING Co. Miss., 23 South. Rep. 259.

97. RAILROAD COMPANY- Crossing Accidents - Con. tributory Negligence.-The duty to look and to listen before crossing a railroad includes the duty to do that which will make looking and listening reasonably effective. If there is a permanent obstruction to sight that would make danger invisible, and a transient noise that would make it inaudible, it is negligence to go forward at once from a place of safety to a place of possible danger. Prudence requires delay until the transient noise has abated, and hearing again become efficient for protection.-CENTRAL R. Co. OF NEW JERSEY V. SMALLEY, N. J., 39 Atl. Rep. 695. 98. RAILROAD COMPANY - Fires Set by LocomotivesEvidence. To authorize a plaintiff to recover dam. ages from a railroad company for the destruction of property by fire caused by the running of its locomo tive, it must appear that such damage was occasioned by the fault or negligence of the company or its agents. If, without more, it should be shown that the fire was occasioned by operation of the locomotive, negligence on the part of the company would be presumed.GAINESVILLE, J. & S. R. Co. v. EDMONDSON, Ga., 29 S. E. Rep. 213.

99. RAILROAD COMPANY-Rules for Running Trains.Rules adopted by railroad companies for the manage. ment of trains are presumably selected as the best for avoiding accidents, and, unless clearly shown to be palpably unreasonable or insufficient, the company should not be charged with negligence on account of their adoption and use.-LITTLE ROCK & M. R. Co. v. BARRY, U. S. C. C. of App., Eighth Circuit, 84 Fed. Rep. 944.

100. REAL ESTATE BROKERS Performance.-A contract by a broker to find a purchaser for land is not performed, so as to entitle him to a commission, where he procured one who merely obtained an option on the land, and made no offer to purchase.-BRACKENRIDGE V. CLARIDGE, Tex., 44 S. W. Rep. 819.

101. RECEIVER AS PARTY.-A receiver of a corpora. tion, appointed by the federal court, is not a necessary party to the suit in the State court brought against the corporation by a city to annul an ordinance and rescind a contract granting it the right to maintain and operate waterworks.-PALESTINE WATER & POWER Co. V. CITY OF PALESTINE, Tex., 44 8. W. Rep. 814.

102. SALE-Acceptance Effect. Where the vendees of machines intended or adapted for pulverizing stone and hard materials, and purchased under a warranty of fitness for such purpose, after testing them, and, discovering defects which cause dissatisfaction, con. tinue to use them, not in order to make further tests, but merely for the purpose of their own convenience or profit, such use constitutes an acceptance, and concludes them from the defense of a total failure of consideration, and they must rely upon their warranty.WOODWARD V. EMMONS, N. J., 39 Atl. Rep. 793. 103. SALES-Breach of Warranty Notice.-Where a warranty provided that the buyer should give notice to the seller of any defects found in the machine sold which might constitute a breach of such warranty, complaints not made until two years afterwards were not made within a reasonable time, when, in the meantime, the buyer had frequently seen the resident agent of the seller, and obtained an extension of his purchase notes.-RUSSELL & Co. V. NEWDIGATE, Ky., 44 S. W. Rep. 973.

104. SALE-Rescission by Purchaser.-If a contract of sale is entire and indivisible, though it may include the delivery to the purchaser of two or more distinct articles at different dates, a failure as to any one on the part of the seller may afford ground for rescission by the purchaser.-MCCORMICK HARVESTING MACH. Co, v. COURTRIGHT, Neb., 74 N. W. Rep. 418.

105. SEDUCTION-Alienations of Affections-Damages. - In an action for alienating the wife's affections, the husband may recover the value of her services, the loss

of her society, affections, and assistance, less the value of the performance of the husband's duty to support, clothe, and care for her.-PRETTYMAN V. WILLIAMSON, Del., 39 Atl. Rep. 731.

106. SLANDER - Charge of Intoxication. Words charging intoxication to such a degree as to amount to a violation of decency, not being an offense at com. mon law or by statute, but only by ordinance of the town, are not actionable per se.-LODGE V. O'TOOLE, B. I., 39 Atl. Rep. 752.

107. SPECIFIC PERFORMANCE-Sale of Real Estate-Extension of Option.-Where one who holds an option under a contract for the purchase of lands has refused to purchase them upon the agreed terms, the court cannot, in his suit for specific performance, extend the agreed time within which he was to elect whether or not to exercise the option.-POPE v. HOOPES, U. S. C. C., D. (N. J.), 84 Fed. Rep. 927.

109. STATUTES-Construction.-A duty can be said to be imposed by implication of law only where it is clearly apparent that the legislature, in enacting the sections from which it is claimed the implication arises, meant to impose the duty. It is not enough that the legislature may have meant what it is claimed arises by implication, but, in order that a duty may be so imposed, it must appear from necessity, where the legislature has used no language directly referring to the obligation in question.-BOARD OF COMMRS. OF LOGAN COUNTY V. HARVEY, Okla., 52 Pac. Rep. 402.

109. TENANCY IN COMMON-Adjustment of Equities.In a suit for partition, the power of the court to adjust the equities of the parties, including the allowance of rent to the excluded tenant, where the premises have been held adversely to him by the other tenant, is not Impaired by How. Ann. St. § 5778, limiting recovery against a co-tenant to moneys actually received by the tenant in possession, in excess of his just proportion of the rents and profits.-FENTON V. WENDELL, Mich., 74 N. W. Rep. 384.

110. TRESPASS TO TRY TITLE-Recovery for Breach of Contract. Where defendant in trespass to try title sets up rights under a contract entered into with plaintiff, whereby defendant was to obtain a deed of the land and as a part of the consideration agreed to build a switch for plaintiff, plaintiff may plead and recover damages resulting from the failure to build the switch. -SAN ANTONIO & A. P. RY. Co. v. GURLEY, Tex., 44 S. W. Rep. 865.

111. TRIAL-Instructions.-Under Const. 1895, art. 5, § 26, providing that judges shall not charge in respect to matters of fact, an instruction, in an action for dam. ages caused by negligence, that, "if the city placed obstructions there, not giving any notice, and he (plaintiff) sustained damages, it would be an act of negligence" is erroneous.-CHINA V. CITY OF SUMTER, S. Car., 29 S. E. Rep. 206.

112. TRUST DEED-Parties-Liability for Loss of Prop. erty Insured.-Where plaintiff gives another a trust deed of his farm as security for a note to a third person, and before the maturity thereof, sues a railroad for damages for burning a barn on the farm, and the note was paid by a sale of the premises, before judg. ment was rendered, the plaintiff was the real party in interest, and the proper party to maintain the action. -MATTHEWS v. MISSOURI PAC. RY. Co., Mo., 44 S. W. Rep. 802.

113. TRUST DEED-Sale in Unauthorized County.When a trust deed gives the trustee therein named power to sell the linds conveyed, the sale to be had in a certain county, and the trustee sells in a different county, the sale is null and void.-CHANDLER V. PETERS, Tex., 44 8. W. Rep. 867.

114. TRUSTS AND TRUSTEES-Following Trust Funds.To render an assignee liable to account to a party who had placed money in the hands of his assignor as a trust fund, it must appear either that the fund actually passed into the hands of the assignee, or that property into which it can be traced passed to his hands, or, if o commingled with the general assets of the assignor

as to be incapable of identification or tracing, that the estate which did pass to the assignee was augmented or bettered thereby; and the use of the trust money by the assignor in the payment of his debts, and to defray the current expenses of his business, cannot be held an augmentation or betterment of his estate, when all the assets passing to the assignee existed as the prop erty of the assignor prior to the receipt of the trust money by him.-TRAVELERS' INS. Co. v. Caldwell, Kan., 52 Pac. Rep. 440.

116. WATERS Irrigation Taxation.-The use of .water for the purpose of irrigation of arid lands is a public use within the import of the constitution; and that this is true, coupled with the further facts that each person within the range of the operation of an irrigation ditch or canal could, by payment of the cus tomary rates, command the services of the company owning the ditch, and thereby obtain the use of water, and that the nature of the business was such as to make it subject to legislative control, warranted the legislature in designating such ditches or canals works of internal improvement.-CUMMINGS V. HYATT, Neb., 74 N. W. Rep. 411.

117. WILLS-Construction-Lapse of Legacies.-A will provided that a legacy should go to the legatee if she survived testatrix, end, if not, it was to go into the residue of the estate. A codicil provided that the legacy should go to the legatee, "and her executors and administrators, absolutely:" Held, that the legacy passed, on the death of the legatee before testatrix, to the legatee's executor or administrator.-KERRIGAN V. TABB, N. J., 39 Atl. Rep. 701.

118. WILLS-Construction-Power to Mortgage.-The terms of a will authorizing the executor, within a cer tain time, to sell or dispose of any portion of the devised real estate, and reinvest the proceeds, confer no power to mortgage, or to convey after the expiration of the time limit in satisfaction of a mortgage previously given.-ALLEN V. RUDDELL, S. Car., 29 S. E. Rep. 198.

119. WILLS-Gift During Widowhood-Dower.-After certain bequests, a testator gave to his wife all the residue of his estate for her separate use, and provided that, if she should again marry, "I give, bequeath and devise to her one-third of my real estate and personal property, for herself and her heirs:" Held, that the widow was not entitled to an absolute estate in fee in either the entire real or personal estate. -BENNETT V. PACKER, Conn., 39 Atl. Rep. 739.

120. WILLS-Vesting of Estates.-Property was de vised to a trustee, the income to be used for the sup port of himself and children until the youngest reached 21 years, when the principal was to be divided among the children, with cross limitations over in case of the death of any of them. The trustee died before the eldest son reached his majority: Held, that the eldest son, on becoming of age, could not compel payment of his share of the estate, on the ground that the post ponement of the division was solely for the purpose of having the trustee receive the income for himself aud children, and, this purpose having failed, the estate limited to the children became vested at once on the death of the trustee.-STREIB V. STREIB, N. J., 39 Atl. Rep. 723.

121. WITNESS-Transactions with Decedent.-Rev. St. 1895, art. 2302, providing that, in actions by executors, neither party can testify against the others to trans actions with testator, unless called to testify thereto by the opposite party, will not allow defendant to tes tify to transactions with plaintiffs' testator, on introduction by defendant of deposition of testator relative thereto, used on a former trial.-IVEY V. BONDIES, Tex., 44 S. W. Rep. 916.

History of Taxation in England, 148; Act 20, George III, Ch. 28; 45 George III, Ch. 28; 16 and 17 Victoria, Ch. 51; Green v. Craft, 2 H. Bl. 30; Hill v. Atkinson, 2 Merivale, 45. Such taxes are now in force generally in the countries of Europe. Review of Reviews, February, 1893. In the United States they were enacted in Pennsylvania in 1826; Maryland, 1844; Delaware, 1869; West Virginia, 1887, and still more recently in Connecticut, New Jersey, Ohio, Maine, Massachusetts, 1891; Tennessee in 1891, chapter 25 now repealed by chapter 174, acts 1893. They were adopted in North Carolina in 1846, but repealed in 1883. Were enacted in Virginia in 1844, repealed in 1855, re-enacted in 1863, and repealed in 1884.'" Other States have also enacted them-Minnesota by constitutional provision.

The constitutionality of the taxes have been declared, and the principles upon which they are based explained in United States v. Perkins, 163 U. S. 625, 628; Strode v. Commonwealth, 52 Pa. 181; Eyre v. Jacob, 14 Grat. 422; Schoolfield v. Lynchburg, 78 Va. 366; State v. Dalrymple, 70 Md. 298; Clapp v. Mason, 94 U. S. 587; In re Merriam's Estate, 141 N. Y. 479; State v. Hamlin, 86 Me. 495; State v. Alston, 94 Tenn. 674; In re Wilmerding, 117 Cal. 281; Dos Passos Collateral Inheritance Tax, 20; Minot v. Winthrop, 162 Mass. 113; Gelsthorpe v. Furnell (Montana), 51 Pac. Rep. 267. See also Scholey v. Rew, 23 Wall. 331."

Against the cases sustaining inheritance taxes are cited State v. Mann, 76 Wis. 469; State v. Gorman, 40 Minn. 232; Curry v. Spencer, 61 N. H. 624; State v. Ferris, 53 Ohio, 314, and State of Missouri v. Switzer, supra. But such cases, as Mr. Justice McKenna says, are not in all points irreconcilable with those first cited.

to the left rein, thereby drawing the horse out of her course, to the left, onto the stone. The court said in part: "In the case at bar it is obvious that the primary cause of the injury, and which led by regular sequence to it, was the breaking of the line. After that line broke, the plaintiff, according to his own testimony, pulled on the left line, and the mare veered to the left, and soon after his car struck the stone, and he was injured; and that, if the line had not broken, the wheel would not have hit the stone. As stated by the trial court. in consequence of the breaking of the line, the plaintiff, by pulling upon the left line, drew the mare or cart onto the stone. The line which was not broken, instead of being an agency for keeping the mare within the traveled track, was a potent agency for taking her outside of the traveled track. The town was in no way responsible for the breaking of the line, and the plaintiff testifies that, if it had not broken, the injury would not have happened. The instant the line broke, the mare ceased to be under the control of the plaintiff; and the broken line precluded the plaintiff from regaining such control. The shortness of the distance between the place where the line broke and the stone does not change the principle. The mare had passed entirely out from under and beyond the plaintiff's control, as much so as in Jackson v. Town of Bellevieu, 30 Wis. 250. Thus, in a recent case in Massachusetts it is held that: If a traveler on a highway in a city loses complete control of the horse which he is driving, and such loss of control is not momentary only, but is a permanent condition, and he is injured. he cannot maintain an action against the city for his injury, although the way is defective.' Scannal v. City of Cambridge, 163 Mass. 91, 39 N. E. Rep. 790. This is not the case of a momentary loss of control which would have been instantly regained if the plaintiff's cart had not come in contact with the defect. Babson v. Inhabitants of Rockport, 101 Mass. 93; Houfe v. Town of Fulton, 29 Wis. 306; Schillinger v. Town of Verona, 85 Wis. 599, 55 N. W. Rep. 1040; Bishop v. Railway Co., 92 Wis. 143, 65 N. W. Rep. 733. In Massachusetts and Maine it is held, in effect, that the liability of towns is a limited one, and, to enable the plaintiff to recover. it must be shown that the defect in the highway was the sole cause of the injury. Murdock v. Inhabitants of Warwick, 4 Gray, 178; Marble v City of Worcester, Id. 395; Rowell v. City of Lowell, 7 Gray, 100; Bemis v. Inhabitants of Arlington, 114 Mass. 509; Moulton v. Inhabitants of Sanford, 51 Me. 127. This court, in some early cases, professed to follow the Massachusetts cases; but it is manifest that they failed to do so in the particular here mentioned. But the furthermost this court has ever gone in the opposite direction has been to hold that: 'If the accident happened partly from a cause in respect to which a want of ordinary care could not be imputed to the traveler, as from a defect in the axle of a vehicle he was driving, the town is liable if the

accident would not have occurred but for the highway being out of repair.' Dreher v. Town of Fitchburg, 22 Wis. 675. That is to say, where the defect in the highway concurred with the defect in the vehicle, the plaintiff was not thereby necessarily barred from a recovery. So in Houfe v. Town of Fulton (29 Wis. 296), the defect in the highway was, in effect, held to be the proximate cause of the injury, and that the right to recover was not defeated merely because there was 'another proximate cause,' not attributable to the plaintiff, nor to any third person, contributing directly to produce the injury—that is to say, the plaintiff was not precluded from recovery merely because there were two proximate concurring causes to produce the injury, neither of which was the fault of the plaintiff nor that of a third person. These cases certainly should not be extended, since they are departures from the rule maintained in the State from which we borrowed our statute. Neither of those cases, however, go to the extent of holding that the defendant may be held liable in a case like the one at bar, which is clearly distinguishable. In this case, as indicated, the alleged defect in the highway was not an approximate nor a concurring cause, but a subsequent and remote cause.

INJUNCTION

Ante 318

BREACH OF CONTRACT SPECIFIC PERFORMANCE.-The Supreme Court of Illinois, in Welty v. Jacobs, 49 N. E. Rep. 723, decides that equity will not restrain the breach of a contract to furnish for a certain period the use of a theater, cleaned, lighted and heated, together with stock, scenery and equipments, and to provide stage hands, carpenters, house programmes, licenses, bill boards, stage furniture, and properties, made in consideration of plaintiff's agreement to furnish a company to perform a certain play or enjoin the use and occupation during said period by any other company, and a contract of such character will not be specifically enforced where the other party to the contract could not be compelled to carry out his agreement and furnish a properly equipped company to produce a certain drama at such a theater. The court says: "Strictly speaking, the bill was not one for specific performance, but for injunction only. It is clear from its allegations and the authorities bearing upon the question that specific performance of the contract could not be decreed. It is not, and cannot be, contended that appellant could have been compelled, by any writ the court could have issued, to Occupy the theater with his company of actors and give the performances contracted for, any more than a public singer or speaker can be compelled specifically to perform his contract to sing or speak. Negative covenants not to sing or perform elsewhere at a certain time than a designated place have been enforced by the injunctive process, but further than this such contracts have not been specifically enforced by the courts, by injunction or otherwise. Lumley v. Wagner, 1 De Gex, M. & G. 604; Daly v. Smith, 38 N. Y. Super.

Ct. 158. In Lumley v. Wagner there was an express covenant not to sing elsewhere than at the complainant's theater, and the injunction was placed on that ground.

"But it is urged that negative covenants may be implied as well as expressed, and, when necessarily implied from the terms of the contract, they will be enforced in like manner; citing the following cases: Montague v. Flockton, L. R. 16 Eq. 189; Great Northern Ry. Co. v. Manchester, S. & L. Ry. Co., 5 De Gex & S. 138; Chicago & A. Ry. Co. v. New York, L. E. & W. R. Co., 24 Fed. Rep. 516; Singer Sewing Mach. Co. v. Union B. & E. Co., Holmes, 253, Fed. Cas. No. 12,904; 2 High, Inj. (2d Ed.) § 1150; Fredricks v. Mayer, 13 How. Prac. 566. While there was a negative covenant in the contract under consideration against Welty, it is not important to consider whether or not appellant might have been enjoined from performing elsewhere than at Jacobs' theater at the time in question, for it is manifest he could not have been compelled to perform at said theater. Before a contract will be specifically enforced there must be mutuality in the contract, so that it may be enforced by either; and, as this contract was of such a nature that it could not have been specifically enforced by appellee Jacobs, it should not be so enforced by appellant. Lancaster v. Roberts, 144 Ill. 223, 33 N. E. Rep. 27; Fry, Spec. Perf. §§ 440, 441; Wat. Spec. Perf. § 196; Cooper v. Pena, 21 Cal. 411.

"But it is urged that courts of equity will by injunction to restrain the violation of contracts of this character in many cases where they cannot decree specific performance, and the following among other cases are referred to: Western Union Tel. Co. v. Union Pac. Ry. Co., 3 Fed. Rep. 423-429; Wells, Fargo & Co. v. Oregon R. & Nav. Co., 15 Fed. Rep. 561, and 18 Fed. Rep. 517; Wells, Fargo & Co. v. Northern Pac. R. Co., 23 Fed. Rep. 469. Without determining whether there may not be exceptional cases not falling within the general rule, we think the rule is as stated in Chicago, M. G. L. & F. Co. v. Town of Lake, 130 Ill. 42, 22 N. E. Rep. 616, and the authorities there quoted. It was there said (page 60, 130 Ill. and page 619, 22 N. E. Rep.): The bill of complaint in this case, though not strictly a bill for the specific performance of a contract, is in substance a bill of that kind. In 3 Pom. Eq. Jur. § 1341, it is said: "An injunction restraining the breach of a contract is a negative specific enforcement of that contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel a specific performance. Both are governed by the same doctrine and rules. It may be stated, as a general proposition, that whenever the contract is one of a class which will be affirmatively specifically enforced, a court of equity will restrain its breach by injunction, if this is the only practical mode of enforcement which its terms permit.' It is plain that, as a general rule, to enjoin one from doing something in violation of his contract is an indi