gaged does not compel him to enter upon a new business, but he must use reasonable diligence in procuring another place of the same kind, in order to fix the amount of his damages: Fuchs v. Koerner, Ct. App. N. Y., December 13, 1887.

Failure to replace defective appliance for two weeks after notice from employee and promises of master to remedy the defect raises a question for the jury to decide whether the servant had assumed the risk: Counsell v. Hall, S. Jud. Ct. Mass., January 4, 1888.

NEGLIGENCE. See Railroads.

Machinery or appliances of two kinds being in general use, and skillful persons being divided in opinion as to their relative safety, the master who uses either is not negligent: Pierce v. Atlanta Cotton Mills, S. Ct. Ga., October 5, 1887.

Question of law for the court arises where the facts from which negligence is sought to be inferred are not disputed, and the inference to be drawn from the facts is unequivocal; otherwise negligence is a mixed question of law and fact: Chicago, etc., R. R. Co. v. Ostrander, S. Ct. Ind., January 21, 1888.

NUISANCE.

Livery stable is not prohibited by a covenant forbidding the erection of "cow stables or any other dangerous, noxious, or unwholesome or offensive establishment, trade, calling, or business," as by express words stables are separated from other offensive places; and further, by forbidding a particular class of stables, all others are free from the prohibition: Flanagan v. Hollingsworth, Ct. App. N. Y., January 17, 1888.

Public picnics and dances are not nuisances at common law and cannot be declared such by villages incorporated under a general law empowering them to declare what shall be a nuisance. The people have a right to assemble together for health, recreation, or amusement in the open air, and because this privilege may be abused is no reason for its denial: Des Plaines v. Poyer, S. Ct. Ill., January 19, 1888.

PARTNERSHIPS. See Assignment for the Benefit of Creditors.

PRACTICE. See Trusts; United States Courts; Witness.

Filing of a paper is accomplished by delivery to the proper officer for official custody. The usual file marks are but one evidence of the filing: County Commissioners v. State ex rel., S. Ct. Fla., January, 1888.

At law a court of the United States may exercise equitable powers over its process to prevent abuse, oppression, and injustice, and in favor of a stranger to the litigation without regard to citizenship, as an incident to the jurisdiction already vested: Gumble v. Pitkin, S. Ct. U. S., January 9, 1888.

RAILROADS.

Delivery of cattle must be made at the place of destination and to the order of the consignee, notwithstanding the way bill contains a direction to notify another person: N. Penna. R. R. Co. v. Commercial N. Bank, S. Ct. U. S., October T., 1887.

Delivery of cattle without requiring the production of the bill of lading or other authority of the shipper renders the carrier liable, and a custom of the carrier to deliver without such authority is not a defense where a wrongful delivery has been made: Id.

Fellow servants; the foremen and the trackmen of a section gang: Olsen v. St. Paul, etc., R. R. Co., S. Ct. Minn., January 10, 1888.

Employee may recover damages for a defective side-stake on a lumber car where the previous inspection had been merely casual and the company had no rules requiring inspections: Bushby v. N. Y., etc., R. R. Co., Ct. App. N. Y., November 29, 1887.

Fire, accidentally destroying cars while on the private tracks of the consignees, is not a risk which the company delivering the cars on to the private tracks could be held accountable for; the duties of the carrier had terminated with the delivery of the cars on the private tracks: E. St. L. C. R. R. Co. v. W. St. L. & P. R. R. Co., S. Ct. Ill., January 20, 1888.

Fire communicated by a locomotive is not evidence of negligence in managing the engine, as the use of fire in the engine is necessary in the prosecution of a lawful business-to wit, the operation of a railroad; hence, the plaintiff must prove a negligent management of the engine: Chicago, etc., R. R. Co. v. Ostrander, S. Ct. Ind., January 21, 1888.

Risk ordinarily incident to his employment, which a brakeman impliedly agrees to take, includes the increased dangers of railroading from rain, snow, ice, etc. O'Bannon v. Louisville, etc., R. R. Co., Ct. App. Ky., January 12, 1888.

Trackmen cannot recover for injuries received from a snow-plow sent out in a storm, where it is a rule of the company to run specials without notice to such employees: Olsen v. St. Paul, etc., R. R. Co., S. Ct. Minn., January 10, 1888.

Trains have a right of priority of passage at a highway crossing, and a traveler has no right to expect them to slacken their speed, much less stop, when he is seen to cross or about to cross the track: Ohio, etc., R. R. Co. v. Walker, S. Ct. Ind., January 27, 1888.

Ticket sold as good for fifteen days after date of identification of the purchaser cannot be used after the expiration of the time; the passenger may be ejected and no evidence of a parol variation of the contract can be admitted: Rawitzky v. L., etc., R. R. Co., S. Ct. La., January 9, 1888.

REPLEVIN.

Consignee of goods sent C. O. D. has not such a title or right of possession in the goods as will entitle him to maintain an action of replevin against the carrier, whether the delivery was rightly or wrongly refused: Lane v. Chadwick, S. Jud. Ct. Mass., January 9, 1888.

ROADS AND STREETS.

Conveyance of land on a highway, creates a presumption that the title to the centre of the highway is thereby conveyed: Green v. N. Y. Cent., etc., R. R. Co., Ct. App. N. Y., December 23, 1887.

Dedication of a highway may be inferred from the laying out of a thoroughfare by the owner of the ground through which it passes and use by the public. And such dedication, cannot be recalled, so long as the public use is maintained and public accommodation might be affected by an interruption of the enjoyment of the way: Union Company v. Peckham, S. Ct. R. I., January 7, 1888.

· Dedication of land for use as a street, is not to be inferred from the fact that the owner, when conveying, bounds his ground on the side of a street laid out on the public plan, but not opened, and such grantor may recover damages for the land used in the street when it is actually opened: In re Brooklyn Street, S. Ct. Penna., February 20, 1888.

Express grant of a right of way may be found by the jury, in an action of trespass, for disturbance of right of way, where a tract was purchased in 1862, without any outlet to a public road, but with a verbal promise of a right of way over other property of the grantor, which was pointed out by the grantor and used by the grantee until 1885, when it was obstructed by a gate: Allen v. Vandervert, S. Ct. Penna., November 7, 1887.

SALE.

Acceptance of merchandise after instructions from the seller to the buver not to receive the articles if bad waives defects, and the agreed price must be paid, without regard to the market value: Smith v. New Albany R. M. Co., S. Ct. Ark., December 10, 1887.

Contract remains executory, even though the price has been paid, where the goods are to be thereafter manufactured, weighed, designated, and delivered: Coplay Iron Co. v. Pope, Ct. of App. N. Y., January 17, 1888.

SUNDAY LAWS.

Void when entitled "An Act making it a misdemeanor to do barbering on Sunday," and making it a misdemeanor not only to do barbering but to keep open bath-rooms on that day: The act contains more than one subject, in violation of the State Constitution, and it would be void, also, if it operated for the benefit of bath

room keepers who were not barbers, as granting a special privilege, contrary to the constitutional provisions: Ragio v. State, S. Ct. Tenn., January 17, 1888.

TELEGRAPHS.

Tax laid by a State statute upon telegraph companies within its limits is not void as an attempt to regulate interstate commerce: Attorney-General v. W. U. T. Co., U S. C. Ct. Dist. Mass., November 28, 1887.

TRIAL.

Instruction to the jury, that one of the jurymen knew more about the specifications of building contracts than the court, is not erroneous and would not cause a reversal of the judgment: Bedell v. Errett, S. Ct. Penna., November 7, 1887.

TRUSTS.

Cestui que trust not a necessary party to a suit by a stranger against the trustee for the purpose of defeating the trust, if the powers and duties of the trustee are such as to make his acts binding on the cestui que trust without consent: Vetterlein v. Barnes, S. Ct. U. S., January 9, 1888.

UNITED STATES COURTS. See Errors and Appeals; Practice.

Parties will be arranged according to the facts and not the mere form of the pleadings, when determining the jurisdiction: Covert v. Waldron, Ù. S. C. Ct. S. Dist. N. Y., January 3, 1888.

WILLS.

Testamentary capacity is not to be doubted merely because the testator omits to bequeath anything to his relatives, especially when he expressly declared to the scrivener, his determination that they should have nothing out of his estate: Trost v. Dingler, S. Ct. Penna., January 3, 1888.

Solicitations, however importunate and constraining, cannot of themselves constitute undue influence; this must destroy the free agency of the testator at the very time and in the very act of making his will: Id.

WITNESS.

Discharge by habeas corpus proceedings will be granted from imprisonment under a notary's mittimus, for failure to produce books and papers, where it appears that the books and papers would be inadmissible in evidence: Re Beardsley, S. Ct. Kan., December 10, 1887.

JOHN B. UHLE.

THE

AMERICAN LAW REGISTER.

APRIL, 1888.

DISCRETIONARY CHARITABLE BEQUESTS.

CHARITABLY disposed persons, having no definite choice as to objects, often leave funds by will to an executor or trustee, with power in him to dispose of the amount to such charitable objects or purposes as he may think most deserving, or may for any reason prefer; and the question frequently arises, What becomes of such a fund? Is the bequest a valid one, or does it devolve upon the heirs at law or next of kin, as not being sufficiently and legally disposed of by will?

First. It clearly does not belong to the executor or trustee himself. He has no personal interest in the legacy. He holds it merely as trustee, although the words "in trust" may not be used in the will. The whole language imports a trust; and a court of equity could compel him, if living, to distribute it to some charities, he of course having the selection. His discretion cannot be taken away, but he can be compelled to exercise it. This is practically accomplished by an order of the court that such trustee report a "scheme for distribution," according to his own judgment, to be sure, but to be approved by the court, in order to secure, beyond peradventure, its appropriation to charitable purposes: Nichols v. Allen, 130 Mass. 211; Schouler, Petitioner, 134 Mass. 426; White v. Ditson, 140 Mass. 351; Ommaney v. Butcher, Turn & Russ. 260.

Second. Does it go to the testator's heirs, or will the court adininister it to some charities?

In England undoubtedly such a fund would be distributed

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