brain which permanently impaired his mental faculties: Held, that the facts of his old age, declining health, and his failure to recollect or understand certain transactions, do not prove a want of mental capacity to make a will: Clarke vs. Davis.

A statement made by the testator, after the execution of a codicil, to a daughter whom he had therein disinherited, that he had given her the sum of $600, and no such sum appeared in the will: Held, not sufficient to prove a want of capacity. The capacity of a testator to make a will must be determined by what happened at its execution, and not what afterwards occurred: Id.

The influence to vitiate an act must amount to force and coercion, destroying free agency. It must not be the influence of affection and attachment, nor the desire of gratifying the wishes of another. The proof must be that the act was obtained by coercion; by importunity that could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear. The natural influence of a wife, arising from her relations with the testator, without proof of any specific acts, will not amount to such coercion: Id.

SUPREME COURT OF WISCONSIN.1

Mandamus-Issue of Peremptory Writ stayed on suggestion of Collusion. -Where the return of a register of deeds to an alternative writ of mandamus to compel him to hold his office at a place alleged to be the county seat, according to the result of a certain election, was adjudged insufficient on demurrer, and the relator having moved for a peremptory writ, the clerk of the court of the same county presented affidavits alleging collusion between the relator and the register, and that similar suits had been commenced against other officers of that county to test the same question, in which issues of fact had been joined, it was held, that proceedings in the action against the register should be stayed until the further order of the court after a trial of the issues of fact should have been had: State of Wisconsin ex rel. Field vs. Avery.

Such a suit is not to be treated as a mere private one, inasmuch as it presents a question of public importance, and one which ought not to be decided one way in one suit and differently in another, thus establishing two county seats: ld.

1 From P. L. Spooner, Esq., State Reporter. To appear in Vol. XV. of Wisconsin Reports.

Constitutional Law-Witnesses-Farm Mortgages.-An act of the legislature requiring the reference of actions to foreclose the so-called farm mortgages, to some person to be named by the court, who should take all the testimony to be taken in the state, which either party might desire to use on the trial, is unconstitutional, since it deprives the party of his constitutional right to have his witnesses examined in open court: Oatman vs. Bond, impleaded, &c.

An act of the legislature which discloses in all its provisions an intention so to interpose obstacles and delays in the way of enforcing the class of mortgages therein referred to (farm mortgages, so-called), as to leave the creditor without any substantial remedy, impairs the obligation of contracts, within the meaning of the Constitution of the United States, and of the state of Wisconsin, and is, therefore, inoperative and void. Per COLE, J.: Id.

Such an act is also invalid under the clause of the Wisconsin Bill of Rights, which affirms, that "every person is entitled to a certain remedy in the laws for all injuries or wrongs, which he may receive in his person, property, or character," &c. Per PAINE, J.: Id.

Constitutional Law-Tax-City Charter.-Where the charter of a city, at the time of the issue and sale of its bonds, made it the duty of the Common Council, when any judgment should be rendered against the city, to levy and collect the amount like any other city or ward charges, and declared that private property should not be taken on execution to pay any city debt, a subsequent act of the legislature prohibiting the city from levying such a tax as would be necessary to discharge a judgment rendered against it for interest on said bonds, would deprive the creditor of the only efficient means of collecting his debt, and would be repugnant to the constitution: State of Wisconsin ex rel. Soutler vs. The Common Council of Madison.

The duty of the Common Council of the city issuing such bonds to levy a tax to meet them, or the interest on them, is continuing, and does not cease with the levying of one tax which is in part uncollected. It ends only when the money is collected, and the debt is actually paid: Id.

It makes no difference in such a case, that the judgment against the city was rendered by a court of the United States; the court will award a mandamus to compel the Common Council of the city to levy and collect a tax for the payment of such a judgment; and if the Mayor and a part of the Common Council should go out of office after the alternative writ is

served, their duties in the premises would devolve on their successors, and the peremptory writ be directed to and enforced upon the Mayor and Common Council generally: Id.

Statute of Limitations.-The decision in Parker vs. Kane, 4 Wisc. R. 1, that an action may be barred by a statute of limitations passed after the cause of action accrued, if a sufficient and reasonable portion of the time of limitation, within which the bill might have been filed, remained after the enactment of the statute, cited and approved: Howell vs. Howell.

Judge's Salary assignable-Estoppel-Mandamus to State Treasurer.The salary of a judge, to become due, is a possibility coupled with an interest, and, as such, capable of being assigned: State ex rel. State Bank vs. Hastings.

A circuit judge delivered to the Iowa County Bank, on the 3d of August, his order upon the treasurer of state, directing him to pay to said bank, or order, on the 1st of October following, a certain sum "in full for my (his) quarter's salary commencing on that day," the order being drawn without value, and intended by the parties as a mere authority to the bank to receive and hold the money for the judge's use. The Iowa County Bank indorsed the order, for full value, before maturity, to the State Bank, which purchased it without any notice of the rights of the drawer, except such as is to be implied from the order itself. Held, that the drawer, after having, by proper documentary evidence of title, clothed the Iowa County Bank with the apparent ownership of the fund, is estopped, as to bona fide purchasers for value, from asserting that such apparent ownership was not the real ownership: Id.

The state treasurer having refused to pay said order, on the ground that its payment was countermanded by the circuit judge, the court awarded a mandamus to compel its payment, it appearing that he had sufficient funds in his hands applicable to that purpose: Id.

Constitutional Law-Compensation for Lands flowed by Mill-dam.An act of the legislature authorizing proprietors of a mill-dam to flow lands of other persons, without any provision for compensation, except that they should pay the landowners the value of the land, to be ascertained by the verdict in an action of trespass, is in violation of that section of the constitution which forbids the taking of private property for public use without making compensation therefor: Newell vs. Smith.

A person who purchases land already flowed in consequence of a dam,

and for which no compensation in gross has ever been made, may recover for injury done to the land by the maintenance of the dam after he purchased the estate: Id.

Common Carrier-Negligence-Condition in Bill of Lading.-Whether a common carrier can limit or evade his common law liability by an express contract, quere: Falvey vs. N. Tr. Campany.

Where a condition that the owner of goods assumed the risk of loss by lake navigation and damages from unavoidable or accidental delay, was contained in a bill of lading delivered to the shipper in New York, but the owner of the goods lived in Wisconsin, and there was no proof that he ever assented to or had any knowledge of such condition, the court would hardly feel authorized to say that there was a a special contract between the parties, by which the owner agreed to take any risk which the law would otherwise impose upon the carrier: Id.

Where the goods mentioned in such bill of lading were delivered to a transportation company in the city of New York on the 10th of November, to be carried to a port in Wisconsin, by steam on the lakes, and the goods were not received at Buffalo until the 22d or 23d, though the usual time for transporting goods between those cities by such company was only about three days; and a few hours after leaving Buffalo, the vessel on which the goods were put was wrecked and the goods lost: Held, that the delay in transporting the goods to Buffalo, was, in view of the increased dangers of lake navigation as winter approached, primâ facie proof of negligence, and cast upon the company the burden of showing that the delay was fairly within the exception contained in the bill of lading: Id.

SUPREME COURT OF NEW HAMPSHIRE.1

Easement-Mill-dam-Presumption of Grant-Equity-Demurrer for want of Equity-Nuisance-Jurisdiction.—If the owner of the land on one side of a river erects a mill-dam across the river and abuts the same upon the opposite shore, and continues and maintains the same for twenty years in that position, that would be evidence of a grant or right to build and maintain such a dam, constructed and used substantially in the same manner: Burnham vs. Kempton.

But it is not evidence of a right to approximate all the water-power that

1 For these notes of very recent decisions we are indebted to the kindness of the judges.

might be created by such dam to the use of the person who thus built and maintained the dam: Id.

A dam is an instrument for turning water to the use of a mill, as a bulkhead is the means of drawing the water from a dam, but neither may in fact have been used for either purpose at all, or if at all, in any such a way as to change or affect the original rights of the riparian owners on either side: Id.

Twenty years use of the water of a stream in a particular way is evidence of a right thus to use the water: Id.

The same proof of user which establishes the right is equally conclusive in establishing the limitation of that right: Id

Want of equity is not only good ground of demurrer to a bill, but is a good ground of defence where no case is established upon the merits, and this includes cases where the plaintiff's right proves to be one at law and not one in equity: Id.

Ordinarily courts of equity will exercise a concurrent jurisdiction with courts of law in cases of private nuisance, only when they can restrain irreparable mischief, suppress interminable litigation, or prevent a multiplicity of suits: Id.

And in such cases courts of equity will not ordinarily take upon themselves to decide the fact, that a nuisance exists, when that fact is controverted, but will require that the party asking the interference of the court shall first establish his right at law: Id.

But in some cases, where the party has been long in the quiet and uninterrupted enjoyment of a right, or where the injury threatened would be irreparable, another party will be restrained from interfering with that right, or doing that injury, until he establishes his right at law: Id.

Nor does that large class of cases involving an inquiry into the rights of the owners of water-power in connection with mills and machinery, stand upon grounds substantially different in these respects, from other cases of private nuisance: Id.

Where the rights of several owners in the same water-power or privilege are admitted or have been established at law, a court of equity will entertain jurisdiction to regulate the use of the water, and to fix and establish the extent of their respective rights so as to give each proprietor or owner the just proportion of water to which he is entitled: Id.

But a court of equity will not entertain jurisdiction of a cause, under any pretence of adjusting rights in common to water-power, where it is