ranty, is binding.-ROBINSON & CO. v. BERKEY, Iowa, 69 N. W. Rep. 434.

197. SALE Warranty. A complaint alleging that plaintiffs informed defendant of the purpose for which they wanted a boiler; that he informed them that he had just what they wanted, a secondhand boiler, which was better than a new one; and that they, relying on his statements, paid him the price therefor, sufficiently alleges an implied warranty that the boiler was fit for the purpose for which it was bought.-FITZMAURICE V. PUTERBAUGH, Ind., 45 N. E. Rep. 524.

198. SALE OF GOOD WILL-Action-Pleading.-Under the system of pleading which prevails in this State, an action may be brought against one who has sold out a given business, and contracted not to again carry on the same in a particular locality, both to recover such damages as may have accrued to the plaintiff from a breach of the contract up to the bringing of the action, and to restrain the defendant from a further violation of his agreement.-SWANSON V. KIRBY, Ga., 26 S. E. Rep. 71.

199. SCHOOLS-Validity of Contracts.-A contract for placing certain apparatus in a school building at a specified price, subject to its withstanding satisfactory tests, is not an appropriation of money, within the meaning of a city charter providing that all appropri. ations made by the board of education shall require a two-thirds vote of all the members.-SHORT CONRAD Co. V. SCHOOL DIST. OF EAU CLAIRE, Wis., 69 N. W. Rep.

337.

200. TAXATION - Assessment Roll.-In an action to enforce a lien for taxes assessed by the plaintiff city, proof that the assessment roll had been regularly certified was sufficient, prima facie, to authorize a decree of foreclosure against the defendant for the non-pay. ment of taxes.-CITY OF OLYMPIA V. STEVENS, Wash., 47 Pac. Rep. 11.

201. TAXATION-Railroads-Sale for Taxes as "Lands." -For purposes of taxation, a railroad is "land," and under Act Feb. 9, 1895 to dispose of lands which have been, or may hereafter be, sold for taxes and bid in for the State, and which have not been redeemed or purchased from the State," a certain number of miles of a railroad, apportioned by the State board of assess. ment to a certain county, which have been sold for taxes under orders of the probate court of such county and bid in for the State, may be sold as other lands.PURIFOY V. LAMAR, Ala., 20 South. Rep. 975.

202. TAXATION-Tax Sale.-Under Acts 1891, § 73, providing that no sale of real property for taxes shall be invalid on account of the same having been charged in any other name than that of the rightful owner, a tax deed duly issued is effective as against a prior mortgage, even though the mortgagee had no notice of the sale.-POWELL V. SIKES, N. Car., 26 8. E. Rep.

38.

33. TAXES Payment under Protest.-A payment of illegal taxes, made under protest, and to prevent the Issuing of a tax warrant therefor, is not a voluntary payment, and may be recovered back, notwithstanding no warrant or other process had been actually issued for the collection of the same.-BOARD OF COM'RS OF WYANDOTTE COUNTY V. KANSAS CITY, FT. S. & M. R. Co., Kan., 46 Pac. Rep. 1013.

204. TAX SALE-Annullment.-Section 1610, Gen. St. 1894, provides that when a tax sale is declared void by a judgment of the court, stating for what reason the sale is annulled, the amount paid the State at the tax sale or for the tax title shall be refunded, with interest thereon: Held, this section does not apply to cases where, as between the party purchasing the tax title and the owner of the land, such purchase is merely a payment of the taxes.-EASTON V. SCHOFIELD, Minn., N. W. Rep. 326.

5. TENDER.-Where a debtor states to his creditors that he has the money in the bank in the same building in which the conversation occurs, and is ready to pay the sum admitted by him to be due, but the cred

itor refuses to receive it, it is a good tender, though the money be not actually produced.-SMITH V. OLD DOMINION BUILDING & LOAN ASSN., N. Car.,,26 8. E. Rep. 40.

206. TRESPASS-Possession - Evidence. - The mere fact that a person claiming under an invalid lease has changed the locks upon the leased building does not show such an actual possession as will render the owner of the paramount title guilty of trespass in tak. ing possession,-RYAN V. SUN SING CHOW POY, Ill., 45 N. E. Kep. 497.

207. TRESPASS TO TRY TITLE-Recovery for Improvements. Under the statute governing the recovery for improvements made in good faith, in an action of trespass to try title, several defendants in an action, claiming separate portions of the land sued for, which have been separately improved, cannot unite in making a single claim for all their improvements together, but each must make his own claim separately; and, on recovery by plaintiff, judgment should be rendered ac. cordingly.-BENSON V. CAHILL, Tex., 37 S. W. Rep.

1088.

208. TRIAL Instructions Preponderance of Evidence. In trover for conversion of timber, to which defendant pleaded limitations, an instruction requir ing plaintiff to prove by a "clear" preponderance of the evidence that he had commenced his action within the period of limitations, in which the jury are also told that plaintiff must prove his right to recover by evidence that preponderates, so that their minds are not left unbalanced, and so that they "know" his right to recover exists, is erroneous, as requiring too strict a degree of proof.-HOFFMAN V. LOUD, Mich., 69 N. W. Rep. 231.

209. TRIAL-Juror-Disqualification.-A resident of a county is not disqualified on account of interest to act as juror in an action to recover land from the county. -EASTMAN V. BOARD OF COM'RS OF BURKE COUNTY, N. Car., 26 S. E. Rep. 39.

Defense.-Rev'

210. TRIAL-Jury-Action-Equitable St. 1894, § 412, provides that issues of law and of fact in causes that, prior to June, 1852, were of exclusive equitable jurisdiction, shall be tried by the court, and issues of fact in all other causes shall be triable as the same are now triable; that, in case of the joinder of causes of action which, prior to said date, were of exclusive equitable jurisdiction, with causes of action or defenses, which, prior to said date, were designated as actions at law, and triable by jury, the former shall be triable by the court, and the latter by a jury, unless waived, etc.: Held that, where a complaint states both equitable and legal causes of action, in separate counts, the causes of action may be severed, and those of a legal character be tried by a jury.-FIELD V. BROWN, Ind., 45 N. E. Rep. 464.

211. TRIAL-Personal Injuries-Physical Examination. -If plaintiff, suing for personal injuries, can on motion of defendant, be compelled to submit to a physical examination by a surgeon, it should be by one agreed on by the parties or selected by the court, and not one who has already testified against plaintiff.HOUSTON & T. C. R. Co. v. BERLING, Tex., 37 S. W. Rep. 1083.

212. TRUSTS-Creation by Deed-Married Women.-Where a deed conveyed land to a named person, in trust for a married woman for life, and at her death to her children then living, "with power in said trustee, by and with the written consent of the (life tenant), to sell said property, and reinvest the same in other property, subject to the same limitations and restrictions," the power thus created conferred upon the trustee a special personal trust, and was therefore one which did not pass to a successor.-SIMMONS v. McKINLOCK, Ga., 26 S. E. Rep. 88.

213. TRUSTS Loss of Corpus - Apportionment. Where a portion of a fund held in trust for the benefit of one person for life and another in remainder is lost by reason of the failure of the business in which it was

invested, the loss is to be apportioned between the life tenant and the remainder-man, so as to entitle the life tenant to a portion of the fund received on settle. ment of the business, to make up for the loss of income during the time the business was being settled.GREENE V. GREENE, R. I., 35 Atl. Rep. 1042.

214. TRUST DEED - Action to Set Aside-Parties.Where the owners of property convey it to a trustee upon specified terms and conditions, and one of them brings an action against the trustee to have the trust deed annulled and the trustee enjoined from acting or claiming thereunder, the other owners are necessary parties.-ROBINSON V. KIND, Nev., 47 Pac. Rep. 1.

-

215. TRUST DEED Power of Sale. Where a deed to realty expressly recites that it is made to secure a specified promissory note, payable to the grantee or order, and confers upon "the holder of said note" a power of sale, it is sufficiently certain that such deed intended to confer, and did confer, this power upon the original grantee therein, whether, as matter of law, the power would or would not pass to his assignee of the note.-RAY V. HOME & FOREIGN INVESTMENT & AGENCY CO., Ga., 26 S. E. Rep. 56.

216. USURY-Liability of Payee. - Under Code, § 3836, declaring that "the taking, receiving, reserving, or charging" a greater rate of interest than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest, "and in case a greater rate of interest has been paid," the person paying it may recover the amount so paid, etc., the mere contracting for usury forfeits all interest, and, in addition, its actual acceptance renders the payee liable for double the amount received by him.-SMITH V. OLD DOMINION BUILDING & LOAN ASSN., N. Car., 26 S. E. Rep. 42.

217. USURY-Loan to Pay Usurious Debt.-Where the lender of money neither charges nor receives any more than the legal rate of interest, the fact that the money was, with his knowledge, borrowed for the purpose of paying a debt infected with usury, due by the borrower to a third person, does not make the loan usurious.THOMPSON V. FIRST STATE BANK OF DAWSON, Ga., 26 S. E. Rep. 79.

218. VENDOR AND PURCHASER-Assignment of Lien.A vendor's lien on land for which a general warranty deed has been executed by the vendor to the purchaser is assignable.-DICKASON V. FISHER, Mo., 37 S. W. Rep. 1114.

219. VENDOR AND PURCHASER

Damages. Where

there is a contract to convey unimproved land with warranty of title, and the vendee, before conveyance is to be made, erects buildings upon the land without the request of the vendor, in an action on contract to recover damages for failure to convey, the vendor's title proving defective, the value of the buildings cannot be recovered by the vendee.-GERBERT V. CONGREGATION OF THE SONS OF ABRAHAM, N. J., 35 Atl. Rep. 1121.

220. VENDOR AND PURCHASER-Specific Performance. -Under a parol contract for the purchase of lands, part payment of the consideration, and delivery of possession of one of the parcels included in the contract, are sufficient to enable the purchaser to enforce a specific performance of the contract as to all the parcels.-BARTZ V. PAFF, Wis., 69 N. W. Rep. 297.

221. VENUE IN CIVIL CASES. Under Sand. & H. Dig. §§ 7379, 7381, providing for change of venue in civil cases to a county "to which there is no valid objec tion," a judge of the circuit court may change the venue to a county outside of his judicial circuit.PALATIN INS. Co. v. EVANS, Ark., 37 S. W. Rep. 1046.

222. WATERS-Irrigation - Abandonment.-An aban donment of an appropriation of water for irrigation by a locator on government land is shown by evidence that be quitclaimed his possessory right to the land without reservation of the water right, placing his grantee in possession of both, and that he left the State for three years, and claimed no interest in the

water until after his return.- NICHOLS V. LANTZ, Colo., 47 Pac. Rep. 70.

223. WILLS-Construction. - Testator gave his wife a life estate, and directed that the remainder should be divided equally among his surviving children "and their heirs," share and share alike: Held, that the words of survivorship related to the death of testator, and not to the time of the widow's death.-GRIMMER V. FRIEDERICH, Ill., 45 N. E. Rep. 498.

224. WILL-Devise. Where there is a devise to the use of the "Methodist Episcopal Church," and it appears that there are two organizations to whom the designation may apply, evidence is admissible to show that the legal name of neither organization comes within the very words of the will-one being "Trustees of the Methodist Episcopal Church;" the other, "Methodist Episcopal Church South," and that both were commonly known as the "Methodist Episcopal Church."-TILLEY V. ELLIS, N. Car., 26 S. E. Rep. 29.

225. WILLS Devise of Mortgaged Land. - A specific devise of land, mortgaged by testator to secure his own debt, prima facie imports an intention that the debt shall be satisfied out of the general personal assets.-TURNER V. LAIRD, Conn., 35 Atl. Rep. 1124.

226. WILLS Extrinsic Evidence. Testator bequeathed to his wife, in trust for her maintenance and the maintenance of their unborn child, "12 shares in the steam barge J;" to the unborn child, in trust, 4 shares, which, should the child die before coming of age, were to be divided among four persons; to each of his daughters 4 shares; and to his two sisters 1 share, to be divided among four other legatees at their decease. It appeared that testator owned no such property as the barge referred to, which belonged to a transit company, and was its sole property; that testator owned 600 shares of stock in said company, of the par value of $50; that he had always spoken of his interest as shares of $1,000 each, and that when he drew his will he handed to the scrivener a memorandum in which he referred to the stock as "30 shares stock steamer J, $30,000:" Held, that "shares of stock in the steam barge J" should, in each bequest, be construed as 20 times that amount of stock in the transit company.OADES V. MARSH, Mich., 69 N. W. Rep. 251.

227. WILL-Indefinite Charitable Bequest.-A bequest of the residue of testator's estate to "humanity's friend, B, to use and expend the same for the promotion of the religious, moral, and social welfare of the people in any locality, whenever and wherever he may think most needful and necessary," since it includes objects not charitable, must fail for indefiniteness.LIVESEY V. JONES, N. J., 35 Atl. Rep. 1064.

228. WILLS-Revocation-Divorce.-An absolute revocation of a will cannot be implied by law from the obtaining of a divorce from the testator by his wife after the making of the will, the death of one of his children, for whom provision was made in the will, and the birth of three children to such deceased child, prior to the testator's death. BAACKE V. BAACKE, Neb., 69 N. W. Rep. 303.

229. WITNESS-Impeachment.-The answer of defendant, on cross-examination, to a collateral question as to statements by him showing his ill will towards plaintiff, does not bind plaintiff, but he may, for pur pose of impeachment, show by other evidence that defendant made the statements.-CATHEY V. SHOEMAKER, N. Car., 26 S. E. Rep. 44.

230. WITNESS-Interest - Competency.-An attorney at law, employed to collect a promissory note, and who has no contract with his client as to what fees will be charged, but expects to look to the client for reasonable compensation, is not interested in the case, so as to disqualify him from testifying as a wit ness for the plaintiff. This is true, although the witness may have testified that he had no other fee reserved except the 10 per cent. in the note sued upon. -JACKSON V. BENNETT, Ga., 26 S. E. Rep. 53.

Central Law Journal.

ST. LOUIS, MO., FEBRUARY 5, 1897.

Decisions recently rendered by the Illinois Supreme and Appellate Courts in the cases of Rhodes v. Mo. Sav. & Loan Co., and Wierman v. The International Loan & Investment Union, point out an error quite too common to the managers of building and loan associations, everywhere, viz., the idea that such associations may issue what is called "paid up" stock, or stock which, by agreement, shall be regarded as full paid at a certain time in the future. Slight reflection will serve to show the utter legal incapacity of a building and loan association to determine in advance the date of the ma. turity of its stock. Such time must, in the nature of the investment, be undeterminable shead, being entirely dependent upon the earnings of the stock. The Illinois courts hold in both of the above cases that such associations have no power to issue what is known as "paid up" stock. It follows, necessarily, that such associations have not power to issue stock with an agreement that at any time before the actual payment of the face value thereof such stock shall, by earnings, or interest thereon, become fully paid. In the nature of things it is the case that a building and loan association cannot in advance know that at any period before the face amount of stock has been paid the earnings thereon, when added to the amount actually paid, will make it full paid, because what amount or per cent. will, in the conduct of the business, be actually earned, cannot be known in advance. All contracts and agreements of building associations to the effect that after the payment of a certain sum, less than the face value, stock shall be considered full paid, are therefore ultra vires and void. The contract being one repugnant to the statute under which the corporation was created, all persons are chargeable with notice that it was not within the powers of the association. The contract, however, is one which does not involve moral turpitude upon the part of the investor. It is an agreement not malum in se, but malum prohibitum. Therefore, the courts also held that the benefits received by the association under the arrangement which it

made with the investor is not the alleged contract which it entered into with him, but the money which had been actually paid by him; in other words, as the case stands, the investor obtained a loan from the association, which should have been made only in accordance with its chartered rights, so that the terms given to him should not be variant from those offered to every other stockholder and borrower. The money paid by the investor is not to be confiscated, but he is not entitled to anything which the association had not, under its charter, a right to accord to every member, and he is subject to the burdens imposed upon every member and borrower of the class to which he belongs. These decisions are timely and should be heeded by the officers of building associations, many of whom seem to have little appreciation of the restrictive powers of such organizations.

The question of what constitutes a valid marriage is often difficult of determination upon the facts involved in particular cases. The Supreme Court of Minnesota recently struggled with a problem of this kind in Carey Adm. v. Hulett, the facts of that case being somewhat out of the ordinary. It appeared that the respondent had been for a long time prior to the execution of the marriage contract in the employment of Hulett as housekeeper, at his farm, some miles out of the city of Duluth. Her testimony is that immediately after the execution of this contract she moved into his room, and that from henceforth until his death they occupied the same sleeping apartment, and cohabited together as husband and wife. But she admits that it was agreed between them that their marriage was to be kept secret until they could move into Duluth and go to housekeeping, in a house which Hulett owned in that city. While a feeble effort was made to prove that their marital relation had become known to one or two persons, yet the evidence was conclusive that their marriage contract was kept secret; that they never publicly assumed marital relations or held themselves out to the public as husband and wife, but, on the contrary, conducted themselves so as to leave the public under the impression that their former relations of employer and housekeeper remained unchanged. Upon this state of facts the contention of the appellants

was that there was no marriage, notwithstanding the execution by them of the written contract; that in order to constitute a valid common law marriage, the contract, although in verba de presenti, must be followed by habit or reputation of marriage, that is, by the public assumption of marital relations.

The Minnesota court say that they do not so understand the law. The law, they say, views marriage as being merely a civil contract, not differing from any other contract, except that it is not revocable or dissoluble at the will of the parties. The essence of the contract of marriage is the consent of the parties, as in the case of any other contract, and whenever there is a present perfect consent to be husband aud wife the contract of marriage is completed. The authorities are practically unanimous to this effect. Marriage is a civil contract jure gentium to the validity of which the consent of parties able to contract is all that is required by natural or public law. If the contract is made per verba de presenti and remains without cohabitation, or if made per verba de futuro and be followed by consummation, it amounts to a valid marriage in the absence of any civil regulations to the contrary. The maxim of the civil law was "consensus non concubitues facit matrimonium.”

The whole law on the subject is that to render competent parties husband and wife. they must, and need only, agree in the present tense to be such, no time being contemplated to elapse before the assumption of the status. If cohabitation follows it adds nothing in law, although it may be evidence of marriage. It is mutual present consent lawfully expressed which makes the marriage.

See, also, the leading case of Dalrymple v. Dalrymple, 2 Hazzard Rep. 54, which is the foundation of much of the law on the subject. It is there held that an agreement to keep the marriage a secret does not invalidate it, although the fact of secrecy might be evidence that no marriage ever took place.

The only two cases in which anything to the contrary was actually decided, seem to be Regina v. Millis, 10 Cl. & F. 534, and Jewell v. Jewell, 1 Hun (U. S.), 219, the court in each case being equally divided. But these cases have never been recognized as the law, either in England or in this country.

NOTES OF RECENT DECISIONS.

RAILROAD COMPANY-STREET RAILWAYREASONABLENESS OF RULES-TENDER OF FARE. -Barker v. Central Park, N. & E. R. R. Co., 45 N. E. Rep. 550, decided by the Court of Appeals of New York, was an action for assault wherein it appeared that plaintiff tendered a five-dollar bill to defendant's street car conductor in payment of a five-cent fare, stating that it was the only money he had with him, and that the conductor refused to change it, and ejected him. It was stipu lated that defendant had a rule (not brought to plaintiff's notice) requiring conductors to furnish change to the amount of two dollars, but that there was no rule forbidding conductors to make change for a larger amount. There was no evidence of a custom on the part of plaintiff or the public of tendering to defendant five dollars in payment of a five cent fare, and receiving the change, but plaintiff testified that on a former occasion, and on another line, he had offered a five-dollar bill for his fare and that it had been changed for him. It was held that the tender was unreasonable, as a matter of law. The only case cited as holding for the plaintiff was Barrett v. Railway Co., 81 Cal. 296, 22 Pac. Rep. 859. As to that case the New York court says that "we agree with the learned Supreme Court of California that a passenger upon a street railroad is not bound to tender the exact fare, but must tender a reasonable sum, and the carrier must accept such tender and furnish change to a reasonable amount; but we cannot assent to the conclusion that a tender of five dollars is a reasonable sum. It is quite possible that there existed local rea sons for the decision in California, as the judge writing the opinion suggested that the five-dollar gold piece was practically the lowest gold coin in use in that section of the country."