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(CIVIL REMEDIES.)

The maintenance of a tower by a land- | execution creditor who had levied on the owner on his land in such a way that ice property before possession was taken by the formed on it, from freezing rain or spray assignee, on the ground that the deeds of from a cataract, falls on to adjoining prop- trust were void as to such property. (W. erty so as to injure it and endanger human Va.) 869. life, is held to be properly enjoined. (N. Y.) 545.

Specific performance.

In case of an agreement to convey an interest in land to one for services in securing the location of a railroad depot thereon, it is held that specific performance will not be enforced where the grantee has agreed to divide with certain officials of the road all money received by him from sales of land during the construction of the road. (Wash.) 404.

Evidence.

A declaration by a motorman running an electric car, in regard to the cause of the accident, made while the car was still on the body of a child whom it had run down, is held to be admissible in evidence as a part of the res gesta, in an action for the injury. (W. Va.) 186.

A presumption of negligence on the part of an electric company is held to arise when injury results to a traveler in a public street from one of its live wires, which has broken and is hanging so near the ground as to be within reach therefrom. (Or.) 619.

Proof that an electric-light wire controlled by a private corporation, and normally suspended upon poles along a public street, was trailing broken on the sidewalk, is held to afford a presumption of negligence, in a suit against such corporation by a person injured through electric shock by coming in contact with such wire. (N. J. Err. & App.) 624.

Subrogation.

One who furnishes money for the purpose of discharging a mortgage lien upon real estate is held to have no right to be subrogated to the rights of the mortgagee, in the absence of an agreement or understanding that the mortgage is to be kept alive for his benefit, or that he shall be given a lien on the premises in lieu of the one which has been discharged. (Neb.) 901.

Execution.

The interest of the assured in a twentyyear distribution policy of insurance on his life, which will cease on his failure to pay premiums, is held not to be an estate within the meaning of a statute making an execution a lien, from the time it is placed in the hands of the officer, on all the personal estate of or to which the judgment debtor is, or may afterwards and before the return date of the writ become, entitled. (Va.) 380.

A bicycle used by a painter, paper hanger, and billposter to earn a livelihood is held to be within the provisions of a statute exempting from execution the team of a laborer who is the head of a family, and the wagon or other vehicle, by the use of which he earns his living, although the bicycle was not known when the statute was enacted. (Iowa) 764.

An equitable life estate created by a wife in favor of her husband, which shall be free from the debts of the beneficiary, is held to be void where the statute provides that estates of every kind, holden or possessed in trust shall be subject to debts and charges of the persons for whose benefit they are holden, as they would be if those persons owned the like interest in the things holden or possessed, as in the uses or trusts there(Ky.) of. (Va.) 384.

The admission of testimony of physicians appointed by the court to examine plaintiff in an action for negligent injuries, as to the result of an examination made after defendant's motion for such examination was withdrawn, is held to be erroneous. 875.

Discovery.

The production of broken machinery is held to be compellable for examination by persons intending to testify as experts in an action at law for personal injuries caused by its breaking. (N. H.) 949.

Equity.

In case of a conveyance by an aged parent to his son to secure support for himself for the remainder of his life, and the failure of the son to comply with his agreement, rendering impossible of realization the purpose of the grantor, it is held that if the grantor elects to rescind the transaction a court of equity will take jurisdiction to give a protective remedy to him by establishing his status as owner of the property. (Wis.) 458.

A suit in equity to reach assets included in a general assignment for creditors, and also included within the terms of prior deeds of trust purporting to cover such assets as after-acquired property of the debtor, is held not to be maintainable by an

Damages.

The measure of damages for breach of ing lumber, when there is no kiln of the warranty of the capacity of a kiln for dryto be the difference between the value of the agreed capacity on the market, is held not kiln sold and one of the required capacity, but the difference between the value of the apparatus delivered and the contract price. (N. C.) 193.

Damages for the death of the child are held not to be allowable in an action by husband and wife for the physician's abandonment of the wife during her confinement. (Cal.) 215.

Damages for mental anguish caused by breach by a telegraph company of its contract to transmit money promptly are held not to be recoverable. (Ky.) 611.

Substantial damages are held to be recoverable for breach of a contract to transmit promptly a telegram which the company knew to be addressed to a physician directing him to come to the sender's house at once. (Neb.) 905.

(CRIMINAL LAW AND PRACTICE.)

In assessing the damages against a car- by sickness or death, or by loss of time, etc., rier for breach of its contract to transport resulting from sickness. (N. C.) 207.

a corpse, it is held that mental suffering may be considered. (Ky.) 771.

The liability of a municipality to damages for permitting a drainage ditch to become obstructed and filled with filth and offal, so that the water flows onto adjoining land and causes sickness in the family of its owner, is held to be limited to the injury to the property, and not to include injury

In an action of tort, if it be impossible, in the nature of the case, to distinguish be tween the damage arising from the actionable injury, and damage which has another origin, it is held that the jury should be left to make from the evidence the best estimate in their power as reasonable men, and award to the plaintiff compensatory damages for the actionable injury. (N. J.) 309.

IX. CRIMINAL LAW AND PRACTICE.

The adoption of a new Constitution reserving the right of trial by jury "as heretofore enjoyed" is held not to include the right, which had existed by statute for many years, of having the jury assess the punishment in criminal cases whenever there is an alternative or discretion in regard to it. (Mo.) 846.

The granting of a reprieve and the fixing of a date for the execution of a convicted criminal is held to be by the common law a judicial power, and not to be exercised by the governor except in so far as it is expressly permitted by the Constitution. J. L.) 312.

(N.

In case of a conviction of selling intoxicating liquors without a license in violation of a statute forbidding such sale, and providing that the punishment therefor shall be a fine and, at the discretion of the court, imprisonment in the county jail, it is held that the court has no power, in addition to imposing a fine and costs, to require of the defendant sureties for good behavior. (W. Va.) 426.

The carrying of deadly weapons, being an offense fully provided for and punished by state law, it is held to be beyond the power of a municipal corporation to make it an offense punishable under a city ordinance, unless such power is expressly conveyed by the municipal charter. (W. Va.) 413.

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Federal laws, who is transferred from one A prisoner charged with violation of the state to another for trial under process from a Federal court, is held to be properly turned over to the authorities of the latter

state for trial upon a charge of violation of its laws, without being afforded an opportunity to return to the former state. (Mich.) 295.

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971

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a. Separated by highways, rail-
roads, or other property

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