TRUSTS. -so as for a passenger on a railroad train, who is familiar with the management of railroads, and who knows from his familiarity with the train schedule that a collision between the train upon which he is riding and one coming from the opposite direction is imminent and liable to occur at any moment because of the negligence of the company's employés, to go forward into the baggage car, and, just as the trains are about to collide, to jump to the ground,to prevent his recovering from the company the damages thereby occasioned, even although passengers who retained their seats in the cars were not seriously injured. The question as to the existence of negligence on his part is for the jury under all the circumstances of the case. Cody v. New York & N. E. R. Co. (Mass.) 843 5. Whether or not alighting from a moving train constitutes negligence is a question of fact to be determined by the jury, taking into consideration all the circumstances con nected therewith. Pennsylvania Co. v. Marien (Ind.) 687 6. Whether the proximate cause of an injury to an employé loading poles on a car was the failure of the engineer or fireman of an engine which struck the car to ring the bell, or the negligence of the assistant roadmaster in ordering him to continue the work while the engine was backing down, telling him there was plenty of time, and throwing him off his guard, leading him to believe that the roadmaster would take care that the engine did not strike the car,—is a question for the jury. Har rison v. Detroit, L. & N. R. Co. (Mich.) 623 7. Whether or not the failure of a railroad company to give warning of the approach of a train to a crossing on a trestle over a public highway is negligence should be left to the jury. Rupard v. Chesapeake & O. R. Co. (Ky.) 8. Whether or not a youth employed in 316 coupling cars had, or ought to have had, knowledge or appreciation of the danger incident to the use of guard rails with no blocking between them and the main rails, is a question for the jury. Davis v. St. Louis, 1. M. & S. R. Co. (Ark.) 283 9. Although it is the duty of counsel to present their prayers for instructions to the court, the court should embody no more than the substance of them in the charge, and should not give them in extenso, as requested, to the jury. 10. An instruction to find for the plaintiff if ld. the jury find from the evidence that plaintiff has made out her case as laid in her declaration is not erroneous where the declaration states a good cause of action. Laflin & R. Powder Co. v. Tearney (Ill.) 262 a special verdict at the request of one of the parties to the action, although he has previously requested the court to instruct the jury in writing, and has entered upon a discussion of the questions of law to be embraced in such instruction. Lowman v. Sheets (Ind.) NOTES AND BRIEFS. Juror; qualification of. TRUSTS. 784 646 354 688 751 327 1. The donor of the income of a trust fund to a person for life may qualify the gift by a shall be inalienable. Such qualification need provision that the right to receive the income ered from the instrument of grant when connot be in express terms, but it will suffice if the intention to make it can be clearly gathstrued in the light of all the circumstances. Slattery v. Wason (Mass.) 393 Hence fund is given to a person as shall be necessary Id. solutely, subject to a charge for the support of 3. Where a fund is given to a person abfere at the suit of a third person to change the another during life, the court will not interrelation of the parties or the character of the fund. ld. members of a board of trustees, separately ob4. The signature of a majority of the tained to a paper when the board is not in session, will not constitute a valid act by the board. Cary Library v. Bliss (Mass.) 765 5. Where trustees are authorized to carry on a business and contract debts therein, and are given a right of indemnity from the trust estate for the personal liability incurred therey, when the time arrives for terminating the trust a creditor of such trustees may bring suit similar creditors to reach the trust fund for the in equity on behalf of himself and of other satisfaction of his debt, without first recovering a judgment at law. Mason v. Pomeroy (Mass.) 771 6. If a trust to carry on a business, with 11. Where payment of a policy of life insur tees, who carry on the business for a time and ance is contested because of the falsity of cer- in so doing contract debts, and then two of power to contract debts, is given to three trustain answers made by the applicant to questions the trustees retire from the trust, and the other propounded to him and which he warranted to trustee continues the business and contracts be true, the charge to the jury upon the ques- more debts in good faith and for the benefit of tion of falsity must be confined to such ques- the business, upon the termination of the trust tions and answers as were put in issue by the and the winding up of the business the credpleadings and evidence, and not extended to itors whose claims accrued during the manall the answers made by the applicant. Equi-agement of the three trustees have no equity to table L. Assur. Soc. v. Hazlewood (Tex.) 217 12. The court may require the jury to return in the absence of provisions to that effect in priority in payment over the other creditors, 7 L. R. A. ld. the statutes or in the instrument constituting and ordered a release by the trustee to the ownthe trust. er, especially in view of the statute providing that no trust concerning lands shall defeat the title of a purchaser for value without notice thereof. Batt v. Mallon (Mass.) 840 7. Where a decree of court directs the taking of an account of the amount due to certain creditors of a business conducted by a trustee, and the giving of a mortgage upon the business to secure the same, the right to the mortgage will be lost if no steps are taken to secure it until long afterwards, when proceedings have been begun for the winding up of the trust, and bills have been filed by other creditors to reach the trust property. ld. 8. A trust estate is not chargeable with the compensation of a broker for securing a loan for the benefit of the trust, under a contract of employment by the trustee, who agreed that he should be paid from the trust fund, but did not make it a specific lien thereon, or stipulate that he should not be personally liable, where the trustee or his estate is solvent. Johnson v. Leman (Ill.) 656 9. The death of a trustee who has employed a broker to perform services for the trust estate will not render the estate liable, if it was not liable when the contract was made. NOTES AND BRIEFS. of creditors of; status. Id. 3. The grantee in a quitclaim deed takes it with notice of prior equities, and is not protected against an unrecorded bond for a deed for value, by Iowa Code, 1941, which provides that "no instrument affecting real estate is of any validity against subsequent purchasers.. without notice. Steele v. Sioux Valley State Bank (Iowa) 524 Trusts; receiver; title to joint property; rights VENUE. See ACTION OR SUIT, 5, 6. 46 771 570 Trustees authorized to conduct business; VERDICT. See TRIAL, 12. right of creditor to recover his claim. Account of trustee; following trust property. also EXECUTORS AND ADMINISTRATORS, 5; NOTICE, 3. 1. A purchaser of land expressly assuming and agreeing by his deed to pay off certain purchase-money notes given by his vendor and secured by a vendor's lien, the deed retaining a lien for the payment of this sum as well as the balance of the purchase price to his vendor, -becomes personally responsible to the credi tor holding the original lien. O'Conner v. O'Conner (Tenn.) 33 2. Where a deed is made to one as trustee for a certain person, without specifying the terms of the trust, the possibility that some undisclosed deed of trust may exist by which the trustee is to hold the property for the benefit of other cestuis que trust does not constitute a material defect in a chain of title otherwise perfect, which will warrant a refusal to accept it, where every reasonable attempt has been made to discover such deed of trust if one exists, and all have proved unavailing, and where a decree of a court of competent jurisdiction, rendered after full notice and the appointment of a guardian ad litem for all persons who might be interested, has terminated the trust VOTERS AND ELECTIONS. See also CORPORATIONS, 9. 1. A misrecital of some of the provisions of a statute in the proclamation of an election called to decide upon its acceptance will not make the election void, where the statute does not require their insertion, and there is nothing to show that the error affected the election. Datz v. Cleveland (N. J.) 431 2. The fact that a systematic plan to coerce a class of citizens to vote a particular ticket at a certain election was formed and carried out, consisting of the manifestation of a spirit of intolerance towards those who expressed a determination to vote some other ticket, the use of the influence of the church, threats of ostracism from society, and indignities falling short of intimidation,-is not sufficient to avoid the election. Jones v. Glidewell (Ark.) 831 the faith thereof, will not entitle his opponent to the office unless he establishes his right thereto upon the strength of his own title; and he will not be injured by the burglary if he is permitted to prove by secondary evidence the contents of the election returns. Jones v. Glidewell (Ark.) 831 6. A registration law providing that for the next registration the inspectors of the last election shall act, and that they cannot act out of their own precincts, and which repeals all other registration laws, is inoperative where the Act provides for changing and increasing the number of the precincts in such a way that some would have more than their proportion of inspectors residing therein, some less, and some none at all. Attorney-General v. Detroit (Mich.) 99 7. A constitutional provision which requires a residence in the town or ward of ten days only as a condition of voting is violated by a law which compels registration, and fixes the last day therefor on the fourth Monday of October, which in some years will be more than ten days before election day. Id. 8. A law providing but five days in the whole year upon which a person can be registered to qualify himself as a voter, requiring his personal application therefor, with no exception in case of his sickness or absence on those days, is unreasonable and void. ld. 9. The Legislature cannot disfranchise legal voters without their own fault or negli gence, in an attempt to prevent fraud. Id. 10. A provision that naturalized voters, in order to be registered, must produce proper certificates of naturalization, or declaration of intention, or satisfactory evidence thereof other than the oath of the applicant, and which requires the name of the court in which such proceedings were had, and also the date thereof, to be proved,-is unreasonable and void. ld. 1. Where a city has power under its charter to enter into a contract with another for the conthe right and duty attaches to it to make the struction and operation of waterworks therein, contract for the personal benefit of inhabitants within its corporate limits. Paducah Lumber Co. v. Paducah Water Supply Co. (Ky.) 77 2. If a city makes a contract for a water supply for the benefit of its inhabitants, and the property of one of them is destroyed by fire because of the failure of the person agreeing to furnish such supply to comply with his contract, the property owner may sue in his own name for damages for breach of the contract, he being the "real party in interest," within the provision of Ky. Civ. Code, § 18, that every action must be prosecuted in the name of such party; and the city is not a necessary party to the action. 11. Male inhabitants residing in the State 3. One undertaking to furnish a water supJune 27, 1835, being made citizens of Michigan ply to a city for the benefit of its inhabitants by the Constitution although neither native- under a contract which provides that he shall born nor naturalized, a law which compels not be liable for damages occasioned by the registration of voters, and provides only for temporary shutting off of the water for purnative-born or naturalized citizens, is not valid. poses of repair, etc., will, in the absence of Id. such excuse, be liable for damages to property by fire resulting from his neglect to furnish the stipulated amount of water; and such liability will not be released by the insertion in the contract of provisions relieving the city from liability for rent for hydrants, and permitting rescission of the contract, in case it is not complied with. 12. No registry law is valid which deprives the elector of his constitutional right to vote, by any regulation with which it is impossible for him to comply. ld. NOTES AND BRIEFS. Voters and elections; election contests. Right of voters to be registered. WAREHOUSEMEN. 831 99 ld. 4. The inquiry is, in an action to recover damages for failure of a water company to supply water, whether or not, under all the 1. A deposit of grain for storage is a bail- circumstances, the fire could and would have ment, under Minn. Gen. Stat. 1878, § 13; and been prevented or extinguished before occasionthe depositor is the owner of grain in the ware-ing the damage, if defendant had performed house to the amount of his deposit, although the identical grain deposited by him has been removed and other like grain substituted. Hall v. Pillsbury (Minn.) 529 his contract; and the question as to how or where the fire originated is immaterial, provided it was not caused by plaintiff. Id. WATERS AND WATERCOURSES. See also INJUNCTION, 3; NUISANCES, 6, 7. 1. The Savannah River is a public navigable stream. The voyages of the Katie and her cargo are interstate in character, and the juris diction of Congress is undoubted. Lawton v. | under Me. Rev. Stat. chap, 92, § 1, does not Comer (D. C. S. D. Ga.) 55 include the right to lower the outlet of a great natural pond or lake, and lower the surface of 2. The right of a riparian proprietor upon navigable waters to improve, reclaim, and occupy the submerged lands out to the point of navigability, although originally incident to the riparian estate, may be separated therefrom and be transferred to and enjoyed by persons having no interest in the original riparian estate. Hanford v. St. Paul & D. R. Co. (Minn.) the water. ld. 12. Although one may appropriate all the underground water in his soil, he has no right to poison it, however innocently, or to contaminate it, so that when it reaches his neighbor's land it will be unfit for use either by man or beast. Kinnaird v. Standard Oil Co. (Ky.) 451 722 13. The owner of oil stored in large quantities near a spring of water cannot resist a claim for damage, by its leakage, to the spring by pollution of the underground currents of water that feed the spring, because he did not know the water was affected by it, when the oil could be seen in puddles outside of the Id. building in which it was stored. 3. A condemnation by a railroad corporation of upland abutting upon water embraces also the incidental riparian right of improvement and occupancy of the submerged land, although no specific mention is made of riparian rights. Id. 4. A riparian owner has no right of action for the washing away of the soil of the banks and bottom of a stream across his land, in consequence of the increased flow of water at certain times, occasioned by a dam, made with legislative authority, for the purpose of facilitating the driving of logs. Brooks v. Cedar Brook & S. C. R. Imp. Co. (Me.) 460 14. A city is not bound to make a chemical examination of the water of free public wells, for the purpose of ascertaining whether it is pure and wholesome, where it has no notice that the water is unwholesome, and furnishes a public water supply by running water, in addition to the wells. Danaher v. Brooklyn (N. Y.) 592 NOTES AND BRIEFS. Waters and watercourses; navigable rivers; what are; test of; as public highways; power of State over; unlawful obstructions; action for damages. 5. The grant to a lower riparian proprie tor of the right to have a quantity of water come down the stream sufficient to run two paper engines as used in the grantor's papermill does not include a right to the amount required to run the entire mill, including all the other machinery therein, although it is only such as is necessary for a mill running two engines, where the engines were run by a sep-ers. arate water-wheel with which no other ma- Riparian rights; conveyance of bank; right chinery was connected. Whitney v. Wheeler to wharf; title of one having easement in bank; Cotton Mills (Mass.) how far riparian rights separable from bank. 613 6. A provision in a deed granting lower riparian rights, requiring the grantee to contribute towards the expense of maintaining the dam, flume, and gate at the outlet of the reservoir, does not alone give him the right to have the water held back for his benefit. Id. 7. Although an upper riparian proprietor cannot be held to hold back water for the benefit of the owners below him, yet he cannot unreasonably interfere with the natural flow of the stream, and send down a great deal more than the usual quantity at times, and by so doing leave none for a long time afterwards to maintain the stream in its usual condition. ld. 673 Riparian rights; upper and lower mill own 613 722 AND 8. A grant to a riparian proprietor of the right to draw a certain quantity of water from the grantor's pond each day, and no more, confers no right to have the water held back 1. The words "nephews and nieces hereso that there may at all times be enough in the inbefore named," in the residuary clause of a pond to supply the given amount. The will, do not include grandnephews and grandgrantor, however, will not be permitted to un-nieces who have been twice previously referred to in the will as "children" of a "deceased reasonably let down the water for his own convenience, and thereby render nugatory the niece." Re Woodward (N. Y.) right of his grantees to obtain water. Id. 367 2. A testator must be presumed to have used words in their ordinary primary sense or meaning. ld. 3. The adoption of a child does not operate to revoke an antecedent will of the adopting father, although no provision is made in the will or otherwise for such adopted child, under statutes which give the adopted child all the rights and interest in the estate of the adopting father, by descent or otherwise, that he would have if the natural heir, and provide that, if after the making of his will, testator shall have born to him legitimate issue, such will shall be deemed revoked unless provision shall have been made in such will for such issue. Davis v. Fogle (Ind.) 485 4. A general devise to testator's widow, subject to the payment of debts, funeral charges, and the expenses of administration, in full confidence that she will make every needful provision for his children, will not include a trust estate. Buffum v. Tiverton (R. I.) 386 5. Where one article of a will provided for a certain fund to aid deserving college students, and the next clause provided that the rest of the estate should be held as a fund to aid students, "in the same manner and with the same restrictions as prescribed" in the preceding article, "and at any time after five years" the executors might in their discretion appropriate" whatever may remain " to certain towns, the interest to be used for school purposes in the education of all classes,-the fund referred to in the latter article is not to be kept for accumulation during the five years, but used for the purposes specified. Powers v. Jeudevine (Vt.) 516 6. Giving a life estate to testator's widow, with authority to dispose of the whole of the property as she pleases, but providing that whatever may remain undisposed of at her death and not disposed of by her will shall be given to certain other persons, does not give her the absolute ownership, and her heirs do not take the property which remains undisposed of at her death. McCullough v. Ander son (Ky.) 836 7. Permission to persons to whom the use of an estate is devised for life, to use so much of the bulk of the estate as is necessary for their comfort, will give them the right to use what is necessary for their support. The determination as to the existence of such necessity is subject to the supervision of the court, and the amount to be used will be fixed at what is needed, in reference to the situation and condition in life of the devisees. Peckham v. Lego (Conn.) 10. The words "then surviving," in a will giving a woman power to dispose of an estate by will, and, in case of her failure to make a will, directing payment at her decease of one half the fund to testator's heirs at law then surviving, they taking by right of representation, and the other half to the heirs of such woman then surviving, they taking by right of representation, refer to the time of the death of the woman, and give the half of the fund to the persons who at that time are testator's heirs at law. 304 Wood v. Bullard (Mass.) the name of testator is adeemed by a sale of 11. A specific legacy of stock standing in the stock subsequently to the making of the will; and the fact that the will is republished by a codicil afterwards executed is immaterial. Unitarian Soc. v. Tufts (Mass.) 390 12. A legacy of a certain number of shares of certain stock is specific, where another clause of the will disposes of certain other shares of the same stock, and both bequests dispose of the exact number of shares of such stock standing in the name of the testator, and a subsequent clause gives "the balance of my stock as per my stock book, my furniture, and all other property not otherwise disposed of by me," and the general course adopted by the testator in making the will was to take up different items of his property as it then stood, and dispose of them. NOTES AND BRIEFS. Id. Devise and bequest of use of estate; bequest of life estate only. 419 Election to take under. 454 Estate in fee, when given; effect of subsequent words to cut down. 517 words. Grant of life estate, with absolute power of disposal. 837 Grant of absolute power of disposal carries the fee. 9. Under a will providing that a daughter WITNESSES. 521 of testatrix shall receive from the executors a 1. Testimony of plaintiff in a suit against certain sum for her support until she arrives at a physician as the surviving partner, in respect the age of thirty-five years, at which time they to the deceased partner's declarations while enshall transfer to her the entire estate, real and gaged in the business of the firm, is not inadpersonal; but in case of her death before arriv-missible, under Ind. Rev. Stat. 1881, § 498, ing at that age, leaving no lawful issue, her making an interested adverse party incompetent father shall take the property; but with no de- to testify against an administrator as to matters vise over except to the father if then living, in decedent's lifetime, where judgment may be she is entitled on her father's death to the im- rendered against the estate. Hess v. Lowrey mediate enjoyment of the entire estate, although (Ind.) she has not yet arrived at the age of thirty-five years. Bennett v. Chapin (Mich.) 377 90 2. A woman cannot testify to declarations made by her father as to a gift by him to her, |