Switchman on railroad, one of whose rules declared that no buildings or materials would be allowed nearer than six feet to the track, while standing on the platform steps of a car, ready to alight, in the performance of his duties, was struck, without negligence on his part, by a switch-stand extending to within nine or ten inches of the car, in violation of the rule, and was injured; the peril arising from such switch-stand was not assumed by the employé on entering the railroad's service: Pidcock v. Union Pac. R. R. Co., S. Ct. Utah, Aug. 27, 1888.

TELEGRAPH COMPANIES.

Failure to transmit a cipher message renders a telegraph company liable for the damages sustained by the sender by reason of the nontransmission; although the printed contract contains stipulations limiting the company's liability for mistakes or delay in delivery and for non-delivery of unrepeated messages, and exempting it from liability for errors in transmitting cipher or obscure messages, where the contents are not communicated by the sender, and further exempting it in all cases where, as in the present case, claim is not made within sixty days after sending the message; these stipulations do not apply to a failure to transmit: Western Union Tel. Co. v. Way, S. Ct. Ala.,

Dec. 1887.

Forged message, sent by local agent of telegraph company, who was also agent of an express company at the same place, by means of which the receiver was induced to send by express money, which was intercepted and stolen, renders the telegraph company liable for the loss McCord v. Western Union Tel. Co., S. Ct. Minn., Sept. 4, 1888.

State tax upon receipts, returned and assessed in gross, is invalid only in proportion to the extent that such receipts are derived from inter-state commerce: Ratterman v. W. U. Tel. Co., S. Ct. U. S., May 14, 1888; 127 U. S. 411.

TRUSTS.

Loan of money to purchase land where title is taken in name of lender upon his verbal agreement to convey upon the repayment of the amount loaned, the grantee also giving a mortgage for a portion of the purchase-money and being secured for his liability thereon, creates a resulting trust of the whole property in favor of the person for whose benefit the loan is made: Thomas v. Jameson, S. Ct. Cal., Sept. 22, 1888.

USURY.

Attorney's fees on sums collected by suit may be made payable by the debtor, without rendering the contract usurious: Merck v. Am. Freehold Land Mortg. Co., S. Ct. Ga., Dec. 7, 1887.

Commission paid to intermediary, through whom a loan is effected, where the lender neither takes nor contracts to take anything beyond

lawful interest, does not render the loan usurious: Merck v. Am. Freehold Land Mortg. Co., S. Ct. Ga., Dec. 7, 1887.

Holder of negotiable paper, which has been given originally for a usurious loan, must show affirmatively either that he is a bona fide purchaser before maturity without notice of the usury, or that he obtained the paper from such a bona fide purchaser: Knox v. Williams, S. Ct. Neb., Oct. 17, 1888.

Interest overdue may be made to bear interest, such a contract not being usurious: Merck v. Am. Freehold Land Mortg. Co., S. Ct. Ga., Dec. 7, 1887.

WILLS.

Fee-simple is given to his wife by a testator, who devised to her all his real and personal estate, and charged her "with the raising and education of my children, such education to be the best her means will afford," and further provided that "if any of our children should voluntarily refuse education, they are not to receive any advantage in property in consequence of such refusal," and also that "my wife may give to any of our children, at any time, and in the form and manner she may think best, any portion of property she may think proper; provided, those to whom she had given shall be charged the full amount in the settlement of the estate:" Howze v. Barber, S. Ct. S. C., Oct. 23, 1888.

Life estate is created by a devise of land which provides that the devisee is to "occupy and enjoy it during his natural life," and a further provision that he cannot alienate the land, nor in any way incumber it, and that it shall not be subject to attachment or levy, is inconsistent with such life estate and void as to judgment-creditors: Mc Cormick Harvesting-Machine Co. v. Gates, S. Ct. Iowa, Oct. 4, 1888.

JAMES C. Sellers.

INDEX.

2-7

ACCORD AND SATISFACTION.

Binding Settlements.

Payment of a bill for a reduced amount, after bona fide objections to a
larger amount, is an accord and satisfaction. 464.

ADMIRALTY. See SHIPPING.

ALIENS.

Taxation.

A law to tax aliens, as such, is void. 181, 182.

ANIMALS.

Contributory Negligence.

In Indiana, allegation of want of, is necessary. 635, 637.
Otherwise in England and New York, and generally. 635, 637.

May preclude recovery when acts are proved which establish knowledge
of the character of the animal, and that the injured person brought
the calamity on himself. 636.

Deer.

Keeper liable on proof of knowledge of the animal's ferocity. 634.
Experts may prove its propensity to injure at the particular season of
the year when the damage occurred. 634.

Keeper liable for injury to one who had seen persons playing with the
deer, although warning signs had been posted. 637.

Dogs.

Keeping is lawful when accompanied with proper care and diligence to
prevent injury of any one who does not lawfully provoke or meddle
with the dog. 631, 636, 637.

Keeper is not liable if the dog be improperly loosed by another person.
636.

Keeper liable if his servant improperly loose the dog. 637.

Recovery may be had where a person knew the dog ought to be tied and
entered the inclosure without looking. 637.

Treading on a dog's tail accidentally, is not contributory negligence.
637.

Owner liable where a step broke and let a person down to where a savage
dog was chained. 637.

Keeper of a vicious dog is an insurer. 637.

Watch dogs are lawful, but must be confined within reasonable bounds.
637.

Knowledge of the dog's habit to bite in play is sufficient to charge the
owner with knowledge of its tendency to bite when angered. 639.
The jury may see the dog, to judge of its disposition. 641.
Mere habit of bounding upon and seizing persons, so as not to hurt them,
though causing annoyance and trifling damage to clothes, will not be
sufficient to sustain an action against the owner of the dog. 641.
Domitia Naturæ.

Indiscriminate killing of a domestic animal is not allowed, even though
it be engaged in mischief. 644.
VOL. XXXVI.-104

807

ANIMALS-(continued.)

Keeper liable only after notice of some vicious habit. 633, 634.

Scienter, or knowledge of evil propensity must be averred and proved.
634, 638.

Knowledge of the animal's mischievous propensity is a question for the
jury. 639.

Good character cannot be shown, when one previous vicious act is clearly
proved. 640.

Knowledge of an agent or servant is imputed to the master. 641.
Wantonly killing a domestic animal cannot be excused by after acquired
knowledge of an evil propensity. 644.

Fera Natura.

Keeper is responsible without notice of the animal's propensities. 633,
634.

Keeper alone is prima facie liable. 635.

Joint Owners.

All the owners of an animal are liable for its actions. 642.

Joint Trespassers.

The owner of each of several trespassing animals must be sued sepa-
rately. 642.

In the absence of proof, each animal will be presumed to have done the
same amount of damage. 642.

Monkeys.

Keeper liable, because of the nature of the beast. 634.
Persons liable for.

Not only an individual owner, but also the custodian for the time being,
the harborer of a stray animal, a boarder in a private family, a master
permitting his servant to keep the dog on his premises, and a corpora-
tion keeping a dog, are all liable for the dog's actions. 643.

Rabbits.

Not presumed to be dangerous. 634.

Keeper not liable, without notice, except for trespasses. 634.
Res gesta.

Statements made after the injury, and tending to show prior knowledge
of the animal's evil propensity, are admissible. 641.

ARREST. See CRIMINAL LAW.

Bystander.

Assistance in making arrest may be required of a bystander by a lawful
officer. 401.

Responsibility for false arrest, not incurred by a bystander, when re-
sponding to the call of an officer of the law. 401.

Warrant.

Seal of the court necessary for the validity of a warrant of arrest. 328.
ASSIGNMENT FOR THE BENEFIT OF CREDITORS.

Distribution of assets.

Individual creditors are preferred in the distribution of an individual
estate. 203.

Lands.

Auction sale may be held in the State of the assignor, of lands situate
in another State.

61.

Assignment passes lands as between the parties to the assignment. 204.
ATTACHMENT.

Cause of Action.

The complaint may even allege a cause of action ex delicto, and the evi-
dence may establish a tortious conversion, because the tort may always
be waived and the suit brought in contract. 583.

Writ.

The seal of the Court is necessary to the validity of the writ. 327.

INDEX.

809

ATTORNEY AND CLIENT.

Authority to bind Client.

Stipulation for a hearing, made by attorney for defendant, cannot be
repudiated when defendant is present at subsequent stages of the case
and plaintiff proceeds in reliance thereon.

Fees.

62.

Professional employment extends to all that is done, when retainer is on
account of professional character and ability, though some services are
commercial rather than professional. 464.

Professional employment is compensated for all the services taken to-
gether, and not for the aggregate of single acts. 464.
Lien of counsel for compensation, on recovery of land as a consequence
of a successful contest against a will, is superior to that of the judg-
ment creditor of the heir; the services of counsel created the fund,
and in good conscience should be protected. 659.

Privilege of Counsel.

Speaking defamatory words during a trial, is a qualified privilege, and
extends only to such words as have relation to the cause under judicial
investigation. 531.

BAILMENT.

Liability of bailee.

Deposit without reward, requires only ordinary care. 62.

The bailee is not liable for a theft of money deposited with him, with the
right to use, if he exercise ordinary care, and the theft occur before
he use the money. 62.

Discharge refused on failure from stock gambling. 270.
Property.

Indemnity allowed to a claimant before the Commissioners of Alabama
Claims for property burned by the Georgia, passes to the assignee in
insolvency. 535.

Property includes a claim which the sovereign has established against
an indemnity fund obtained by treaty with a foreign power. 535.

Not negotiable, when issued to order at 4 per cent. interest for six
months, and 5 per cent. for twelve months. 465.

Statute of Limitations does not run against a certificate of deposit, until
it is presented. 151.

Deposits.

Bankrupt estate funds, deposited by the clerk of the court, need not be
kept separate from each other.

336.

Set-off for immatured paper of an assignor for the benefit of his creditors,
cannot be interposed by the bank. 336.

Ownership of the deposit cannot be disputed by the bank after crediting
the depositor on its books; this is an implied contract to honor the
depositor's check, in the absence of an attachment by a creditor or a
demand by the true owner. 604.

Statute of Limitations does not run against funds deposited in a bank,
and subject to call, until a demand is made for such funds. 734.
Payment. See Bills and Notes and Checks.

President's Authority.

Compromise of a claim not within the usual authority of a bank presi-
dent. 53, 58.

Litigation is in the charge of the president, by virtue of his authority.
57.