title the seller to disaffirm; failure to disclose his condition, or the fact that he does not intend to pay, or does not expect to be able to pay, being sufficient.-MAXWELL V. BROWN SHOE Co., Ala., 21 South. Rep. 1009. 188. SALES-Sale on Approval.-It is no defense to an action for refusal to accept delivery of machinery pur. chased that defendant was to test such machinery for 30 days, and to be relieved from the purchase if the machinery should not be approved by defendant "for the purposes for which it was purchased," since the power to reject was not arbitrary, but accrued only after test and disapproval in good faith.-SCHLEICHER V. MONTGOMERY LIGHT CO., Ala., 21 South. Rep. 1014. 189. SALE Warranty-Damages.-In an action for the price of cotton machinery sold, a plea in reconvention which sets up breach of warranty, and alleges that defendant sustained damages by being compelled to test the machinery, that it had injured his cotton; and that by reason of delays in making repairs, defendant was compelled to store and rehandle his cotton is not subject to exception as claiming remote damages, where it also alleges that all such items of damage were contemplated by the parties as likely to result from a breach of the contract by the seller.ELLIS V. TIPS, Tex., 40 S. W. Rep. 524. 190. SALE-Warranty-Evidence.-Failure of one purchasing by sample to make complaint, or to offer to return the goods, within a reasonable time after receiv ing, and having an opportunity to examine them, while not precluding the purchaser from complaining of breach of warranty, is to be taken into consideration in determining whether they were equal in quality to the sample.-E. A. MOORE FURNITURE CO. v. W. & J. SLOANE, Ill., 46 N. E. Rep. 1128. 191. SCHOOLS-Tuition - Expulsion.-The fact that tuition as for a non-resident pupil is wrongfully exacted, and paid under protest by the guardian of a resident pupil, does not show an expulsion from the school, entitling the guardian to mandamus directing the board of education to admit the pupil free of charge.-STATE V. BOARD OF EDUCATION OF CITY OF EAU CLAIRE, Wis., 71 N. W. Rep. 123. 192. SPECIFIC PERFORMANCE-Parol Contract.-Possession to entitle a person to specific execution of a parol contract, must be actual, notorious, and exclu. sive.-WOODS v. STEPHENSON, W. Va., 27 S. E. Rep. 309. 193. SPECIFIC PERFORMANCE-Parol Contract-Possession. In a suit to enforce specific performance of a parol contract or agreement to devise or convey real estate, possession is an essential part performance of such contract.-GOODWIN V. BARTLETT, W. Va., 27 S. E. Rep. 325. 194. TAXATION-License Tax.-The law authorizing cities to tax certain callings, trades, professions, and occupations empowers the legislative body of the city to use reasonable discretion as to what kinds of business in the classes mentioned it will so tax.-SMITH V. CITY OF LEAVENWORTH, Kan., 48 Pac. Rep. 924. 195. TAX DEED-Cancellation.-In an action by a pur. chaser of property at tax sale, who had received a county treasurer's deed for the property to have his title to the property quieted, an answering defendant set up title in himself and asked the cancellation of record of the tax deed, and the removal of the cloud created by it from his title: Held that, as a condition of granting to such defendant the relief prayed, he must pay the taxes justly chargeable against the prop erty which had been paid by the plaintiff.-BROWNE v. FINLAY, Neb., 71 N. W. Rep. 34. 196. TAX DEED-Validity.-A tax deed including a fee for printing the notice of sale is voidable if the printer's affidavit of publication was not transmitted to the county treasurer within 14 days after the last publication, as provided by Gen. St. 1889, par. 6957, though transmitted to the county clerk within that time.-DOUGLASS V. CRAIG, Kan., 48 Pac. Rep. 917. 197. TRESPASS-Presumption of Willfulness.-Where a trespass is admitted or proven, the presumption, in the absence of evidence to the contrary, is that it was willful, and the burden is on the trespasser to show that it was not.-MISSISSIPPI RIVER LOGGING Co. v. PAGE, Minn., 71 N. W. Rep. 4. 198. TRESPASSERS-Assault and Battery.-The possession of firearms by one lawfully in possession of property, which arms are made use of for the purpose of intimidating trespassers, is not of itself unlawful, and hence a personal injury to a trespasser, caused by the accidental discharge of the arms, does not create a liability.-SHRIVER V. BEAN, Mich., 71 N. W. Rep. 145. - 199. TRUST Evidence to Establish. Where the father, being the owner of the equitable estate in land, directs the conveyance of the legal title to his son in trust for the father, and in the deed the grantee is designated as trustee, both the deed and instructions for its execution are competent evidence to prove the trust, in an action for its enforcement against the son, who denies the trust, and claims the conveyance was a gift or advancement.-PADDOCK V. ADAMS, Ohio, 46 N. E. Rep. 1068. 200. TRUSTS-Express and Implied.-Where a husband executed a mortgage to his son in trust to secure a loan from his wife, and after his death the son, by action to which the heirs were parties, foreclosed, and bid in the land for the amount of the debt, and assigned the certificate of sale to the widow, who afterwards received a deed in consideration of her claim, and without actual payment of anything except the costs, and the widow had no funds of the estate with which to pay the mortgage, no resulting trust arose in favor of the heirs, and her title was perfect as against them.KYLE V. WILLS, Ill., 46 N. E. Rep. 1121. 201. TRUST-Express Trust.-Where one before a judicial sale agrees to buy in the land in his name for the benefit of his debtor, the debtor to pay the purchase money, and keep the land, this is an express trust, enforceable in equity. A second sale under decree and purchase by same purchaser will not defeat the trust.-CURRENCE V. WARD, W. Va., 27 S. E. Rep. 329. 202. TRUST-Removal of Trustee.-Where the authority given to one of several heirs apointed trustee under a will is substantially that of an agent to manage real estate, a power given the other heirs to remove him "by their unanimous resolution," with the concurrence of the widow, "for good and sufficient, cause," and appoint another in his stead, may be exercised, without resort to a court of equity; the power to determine the sufficiency of the cause being subject only to the restraining power of a court of equity against the abuse of it.-MAY V. MAY, U. s. S. C., 17 8. C. Rep. 824. 204. VENDOR AND PURCHASER Deed-Parol Contem. poraneous Agreement.-An action against a grantor for the wrongful withholding of possession by one without title cannot be maintained on the ground of a parol agreement contemporaneous with the deed of general warranty.-Voss v. HOFFMAN, Tex., 40 S. W. Rep. 544. 205. VENDOR AND PURCHASER-Option-Rescission.Where a person holding a limited optional contract for the sale of a tract of land is prevented from making sale thereof by reason of a cloud on the title, or a deficiency in quantity, not known or taken into consideration at the time of the execution thereof, such person is entitled to a rescission of such contract.-MORRISON V. WAGGY, W. Va., 27 S. E. Rep. 314. 206. VENDOR AND PURCHASER Rescission - Instruments.-A bill to rescind a sale of land for fraudulent concealment of its value, filed after the purchaser had been in possession more than seven years, showing that the land was easily accessible from vendor's residence, and averring no trust relations between the parties, no act of the purchaser to prevent subsequent discovery of the value, and no reason for not sooner making such discovery, shows no such diligence as will avoid the bar of the statute of limitations.-WOOD. FOLK V. MARLEY, Tenn., 40 S. W. Rep. 479. 207. VENDOR AND PURCHASER-Vendor's Lien.-In enforcing a vendor's lien for purchase money, the court, in rendering its decree, will ascertain the aggregate amount of principal and interest due on the notes executed for such purchase money, for which the vendor's lien is retained, to the date of the decree, and decree that interest be paid on such aggregate from the date of the decree.-TRIPLETT V. LAKE, W. Va., 27 S. E. Rep. 363. 208. WATERS AND WATER COURSES-Appropriation.In appropriating the waters of a spring upon public lands, only such acts are necessary, and such indications and evidences of appropriation required, as the nature of the case and the face of the country will admit of, and as, under the conditions and circumstances at the time, are practicable to accomplish the purpose of the appropriator in making a beneficial use of the water.-SILVER PEAK MINES V. VALCALDA, U. S. C. C., D. (Nev.), 79 Fed. Rep. 886. 209. WILL-Bequest - Charitable Use.-A bequest in trust, the income to be applied to the relief of the worthy poor of a town, is not invalidated by the fact that it adds nothing to what the poor are entitled to receive from the town, and, in effect, becomes a perpetual fund for the temporary relief only of the taxpaying class.-IN RE STRONG'S APPEAL, Conn., 37 Atl. Rep. 395. 210. WILL Bequest to Executor.-A testator bequeathed certain goods to the person named as his executor, who had also been a warm personal friend of the testator, and requested the legatee to comply with instructions given in a private letter, and in a codicil bequeathed to him an additional sum in money, stating, "And I thank him in advance for his services in closing up my estate as testamentary executor:" Held, that the bequest of money was not intended as com. pensation for services as executor, and therefore the legatee did not forfeit it by renouncing the trust.CHASSAING V. DURAND, Md., 37 Atl. Rep. 362. 211. WILLS - Devise to Attesting Witness.-If a will can be proved independently of the testimony of an attesting witness beneficially interested therein, a devise or bequest to such witness or her husband is not void. DAVIS V. DAVIS, W. Va., 27 S. E. Rep. 323. 212. WILLS-Heirs.-A citizen of the United States, though a native of Norway, under his will devised his real estate to his wife for life, remainder over one-half to his "heirs" and one-half to the heirs of his wife. He had no children. The heirs of testator were each and all non-resident aliens: Held, that under the will testator intended to devise one-half of his estate to those of his own blood who would have inherited it but for Acts 22d Gen. Assem. ch. 85, providing that non-resident aliens are prohibited from acquiring title by descent or devise except as thereinafter provided.FURENES V. SEVERTSON, Iowa, 71 N. W. Rep. 196. 213. WILLS-Nature of Estate Devised.-In a will devising land to testator's children and grandchild "dur. ing their natural lives, and after their decease to the heirs of their bodies, and, in case of the death of either one, then their portion to descend and belong to the heirs of the other persons mentioned," the words "without such heirs," after the words "death of either one," will be implied to effectuate the evident inten. tion of testator.-YOUNG V. HARKLEROAD, Ill., 46 N. E. Rep. 1113. 214. WILL- Undue Influence.-On a contest of a will on the ground of undue influence, it appeared that proponent had for some years taken charge of testa. trix's affairs; that he had compromised a note due her by an estate of which he was administrator for 25 per cent. of its face: Held, that evidence was admissible to show that he acted in the matter pursuant to the advice of counsel, and to explain what was done in consequence of such advice.-IN RE HINE, Conn., 37 Atl. Rep. 384. 215. WILLS-Vesting of Remainder. Under a devise to P during his life, and after his death "to his lawful child or children, and their heirs and assigns," with devise over contingent on P dying "without leaving issue surviving him, or leaving issue who should not live to the age of 21 years, nor their lawful issue," P having had no children at death of testator, but there. after having had three, all of whom reached the age of 21 years, and one of whom died before P did, leaving a daughter who also, after attaining full age, died before P, the remainder to the children of P vested before his death, so that the interest of his son, who died before he did, descended to his daughter, and was the subject of devise by her.-HINKSON V. LEES, Penn., 37 Atl. Rep. 338. 216. WILLS-Widow's Election.-A devise of all testator's estate (which, at his death, consisted of the homestead alone) to his wife for life, to dispose of at her death as she might deem proper, without any express declaration that such devise was in lieu of her homestead, did not put the widow to her election; and, as she took the provision subject to her homestead estate the property was not liable for testator's debts during the existence of said estate. -STOKES V. PILLOW, Ark., 40 S. W. Rep. 580. 217. WITNESS-Action Concerning Trust in Land.-In actions coming within the second exception contained in section 5242 of the Revised Statutes, when the agent through whom it is claimed a contract was made by a person since deceased is himself a party, his testimony is subject to the same tests of competency that are ap plicable to the testimony of other parties who sustain the same relation to the issues; and where, as a party, he is adverse in interest to one who claims or defends as devisee of such deceased person, he is not competent to testify as a witness against the devisee, either to his own agency or to the alleged contract; nor, in such case, are other parties having a like adverse interest competent to testify to such matters as against the devisee. ROBERTS V. REMY, Ohio, 46 N. E. Rep. 1066. 218. WITNESs-Competency. A written contract dividing land specifies a fence as a line, and on the day of the contract, just after its signing, one of the two parties surveys the lines, fixing a certain fence as the one referred to in the contract. That party cannot, after the death of the other, give evidence denying the fixing of that fence as the line.-ANDERSON V. JARRETT, W. Va., 27 S. E. Rep. 348. 219. WITNESS Confidential Communications. - Ob jection to the deposition of a physician on the ground that it reveals confidential communications goes to the competency of the evidence, not of the witness, and hence may be made for the first time at the trial, under Code, § 3751, requiring objections other than for "incompetency or irrelevancy" to be made at the taking of the deposition. WINTERS V. WINTERS, Iowa, 71 N. W. Rep. 184. 220. WITNESS - Husband and Wife. The rule that statements made in the hearing of others by a husband or wife as to conversations between them are admissi ble does not apply to testimony of a spouse given on another trial, though in the presence and without the objection of the other. KELLEY V. ANDREWS, Iowa, 71 N. W. Rep. 251. 221. WITNESS-Transactions with Decedent.-A party to an action, or interested therein, may testify to any fact which is material in evidence, and does not involve a personal transaction or communication with the opposite party, notwithstanding the death or in sanity of the latter.-SOUTH BRANCH RY. Co. v. LONG'S ADM'R., W. Va., 27 S. E. Rep. 297. NINTH EDITION. Hints on Advocacy. INTENDED FOR PRACTICE IN ANY OF THE COUETS, CIVIL AND CRIMINAL, WITH SUGGESTIONS AS TO OPENING A CASE, By RICHARD HARRIS, Barrister at Law, London, England The present edition of this remarkable book, the work of a distinguished English Barrister, will be found very valuable, even to those who have one of the former eight editions, as there is much in this edition which was not in former ones. The whole work is unique; there is nothing like it in print. There is no school of advocacy, there are no lectures on advocacy, and there is no other work on advocacy. It seems lamentable that no instruction should ever be given in an art that requires an almost infinite amount of knowledge. Tact cannot be taught, but it will follow from experience, and a good deal of experience may be condensed into the form of rules. The remarkable popularity of the First Edition of this book has made a Second Edition necessary. In this edition the text has been revised with reference to late decisions and statutory enactments. Martindale on Abstracts of Titles is in One Volume. 8vo. Bound in Law Sheep. Price, $2.50. Sent prepaid on receipt of amount. Published and For Sale by CENTRAL LAW JOURNAL COMPANY, 919 Olive Street, ST. LOUIS, MO. Baker, Voorhis & Co.'s Recent Publications (FOR SALE BY ALL LAW BOOKSELLERS.) PROBATE REPORTS ANNOTATED. Vol. 1. (In continuation of the American Probate Reports. 8 vols.) Comprising Recent Cases of General Value, Decided in the Courts of the Several States on Points of Probate Law. With Extended Notes and References, By FRANK S. RICE, ESQ. 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BAKER, VOORHIS & CO., Law Publishers, 66 NASSAU STREET, NEW YORK. Central Law Journal. ST. LOUIS, MO., JULY 9, 1897. In the leading case of U. S. v. Lee, 106 U. S. 195, the United States Supreme Court considered whether the suit was one against the United States within the recognized rule that the government without its consent cannot be sued directly in any court by original process as a defendant. In the very recent case of Tindal & Boyles v. Wesley the same court decided that whether a particular suit is one against the State, within the meaning of the constitution, must depend upon the same principles that determine whether a particular suit is one against the United States. In the last mentioned case they hold further that the settled doctrine of that court wholly precludes the idea that a suit against individuals to recover possession of real property is a suit against the State, simply because the defendant holding possession happens to be an officer of the State and asserts that he is lawfully in possession on its behalf. Whether the one or the other party is entitled in law to possession is a judicial, not an executive or legislative question. It does not cease to be a judicial question because the defendant claims that the right of possession is in the government of which he is an officer or agent. The case here, they say, is not one in which judgment is asked against the defendant as an officer of the State, nor one in which the plaintiff seeks to compel the specific performance by the State of any contract alleged to have been made by it, nor to enforce the discharge by the defendants of any specific duty enjoined by the State. The eleventh amendment gives no immunity to officers or agents of States in withholding the property of a citizen without authority of law. The court was of the opinion that this suit is not one against the State within the meaning of the eleventh amendment, and as the record before it showed that the plaintiff owns the premises and is entitled to possession, as against the defendant, the judgment was affirmed. A recent Illinois case (Potts v. Breen, 47 N. E. Rep. 81) presents the question whether or not State boards of health or school directors acting under their orders or otherwise have inherent power to impose the requirement of vaccination as a condition of admission to the public schools. The court held in the negative, deciding also that the statute creating such board and giving it general supervisory power over the health and lives of citizens, could not be held to confer power to prescribe conditions upon which the citizen of the State may exercise rights and privileges guaranteed to him by public law. The right to attend school being given by statute to every child of proper age in the State, and there being no express authority to make vaccination a condition to attendance, boards of health or school boards cannot require it where smallpox does not exist in the community, and where there is no cause to apprehend that it is approaching the vicinity of the school, or likely to become prevalent there. The power to compel vaccination, they say, or to require it as a condition precedent to the exercise of some right or privilege guarantied to the citizen by public law, can be derived from no other source than the general police power of the State, and can be justified upon no other ground than as a necessary means of preserving the public health. Without the necessity, or reasonable grounds upon which to conclude that such necessity exists, the power does not exist. As such the board of health has no more power over the public schools than over private schools or other public assemblages, and its order applying to public schools only, requiring vaccination as a prerequisite to the exercise of the right to attend a public school could be justified only upon reasonable grounds appearing that the contagion of smallpox would more likely originate in or be disseminated from the public schools than from other assemblages. Whether it might be invested with power in this respect is a question not involved here, and not necessary to consider. While school directors and boards of education are invested with power to establish, provide for, govern, and regulate public schools, they are in these respects nowise subject to the direction or control of the State board of health, and, as before pointed out, they have no authority to exclude children from the public schools on the ground that they refuse to be vaccinated, unless, indeed, in cases of emergency, in the |