corporate existence and power of the corporation as will estop the maker of the note and mortgage from denying such corporate existence or power. 5. Where a corporation has power to loan money to its members and take security therefor, it may loan money to one of its members and take the joint note and mortgage of such member and another person although the property mortgaged belongs to the other. 6. Under the laws of Kansas, where a building and savings association loans its 6unds to those of its members only who bid the highest premium for the priority of the loan; and notes are given by the borrower to the association for an amount equal to both the premium bid and money received by the borrower. Held, that the contract between the borrower and lender in such a case is not usurious. 7. Where a member of a building and savings association borrows money from the association and gives a joint note of himself and another as security therefor-the mortgaged property belonging to the other person-and also at the same time assigns to the association a share of stock in the association as additional security for the debt, such other person has the right when sued for the debt to have such stock first sold to satisfy such debt. Modified. Opinion by VALENTINE, J., all the justices concurring. Massey v. Citizens Building, Etc. Assn.

SUPREME COURT OF WISCONSIN.
September, 1879.

MARRIED WOMAN-NOTE GIVEN BY-LIABILITY OF CROPS RAISED BY HUSBAND AND WIFE JOINTLY.A married woman, having at the time no separate estate, purchased a farm of a stranger entirely on credit, giving her notes for the price, secured by mortgage of the property. Her husband lives with her on the farm, and controls the farm labor, carrying on the business in her name as her agent, without any agreement as to his compensation for such services; and from the proceeds of the crop raised on the farm she has paid one year's interest on the purchase money, and a certain amount of the principal. The purchase by her having been made in good faith, and not as a means of fraudulently placing the husband's property beyond the reach of his creditors: Held, that under the statutes of this State (ch. 44, Laws of 1850, and ch. 155, Laws of 1872; R. S. of 1878, secs. 2342-3), crops raised upon said farm by their joint labor and management, belong to the wife, and are not subject to sale for the husband's debts. Feller v. Alden, 23 Wis. 301, followed, and Lyon v. Railway Co., 42 Id. 548 distinguished. Opinion by COLE, J.-Dayton v. Walsh.

RAILROADS-STATUTE AS TO INJURIES TO CO-EMPLOYEES VALID-CONTRIBUTORY NEGLIGENCE.-1. Ch. 173 of 1875 (which makes each railroad company of this State liable for damages sustained by any agent or employee thereof, while in the line of his duty as such, caused by the negligence of any other agent or employee of such company in respect to his duty as such, where the negligence of the person so injured does not materially contribute to the result), is valid, although it does not impose a similar liability upon other corporations or persons. 2. Plaintiff was employed a section hand to work about defendant's depot yard in a city, and, while he was engaged, under direction of defendant's foreman, in driving a spike to hold a rail on one of the tracks in the yard, an engine used in the yard to make up trains backed cars along the track on which he was at work with his back toward the train, and struck and injured him. The special verdict was that plaintiff knew,

as

when driving the spike, that the switch-engine was switching cars and making up trains in the yard, and was liable to be run on any track, but did not know that the cars were being put on the track upon which he was at work; that it was the custom for the engineer to ring the bell on the switch-engine when it was in motion; that the bell was rung, and heard by the plaintiff, five minutes before he was injured, as the engine passed along a side track to his rear, but was not rung after the engine commenced backing toward him; that he had no reason to assume that it would not be run on the track where he was at work; that it was necessary for plaintiff, when driving the spike, to stand with his back to the approaching train; that, when taking that position, he did not look or listen for the train; and that if he had done so, he might have avoided the injury. The jury further found that the engineer of the switch-engine was negligent in not ringing the bell when backing his train toward plaintiff; that such negligence caused the injury; and that, under all circumstances, plaintiff was not guilty of any want of ordinary care. Held, that the court can not say, as matter of law, that plaintiff was guilty of negligence in relying upon the custom as to ringing the bell, and so failing, under the circumstances, to look or listen for the cars; and the question of contributory negligence was therefore properly submitted to the jury. 3. It was also for the jury to determine whether the failure of the engineer to ring the bell while backing cars toward plaintiff, was negli gence. 4. It is the settled law of this State, that while a slight want of ordinary care on plaintiff's part will defeat such an action as this, it will not be defeated by "slight negligence" on his part; that phrase properly denoting a want of extraordinary care. Opinion by LYON J., Ditberner v. Chicago, etc. R. Co.

CONTRIBUTORY NEGLIGENCE INCONSISTENT FINDINGS.-M., plaintiff's decedent, a young and vigorous man, whose senses of sight and hearing were sound and unimpaired, and being at the entrance of a hotel about 253 feet west of defendant's railroad, in a village, and having his horses (attached to his wagon) hitched on the same street about 225 feet east of the railroad, heard the long whistle of an approaching locomotive engine, and immediately commenced running down the street toward his horses. At that time the train was half a mile distant from the street crossing, and it whistled again when about a quarter of a mile distant; it was hidden from M's sight until he was within twenty feet of the track, when he might have seen it by looking in that direction; and, being a light special train carrying officers of the company on urgent business, it was running at the rate of about forty miles per hour, and without ringing the bell on its approach. The passenger trains of the company usually run at the rate of twenty miles, and its freight trains at the of twelve miles per hour; and a freight train was due near that time. M did not cease running, or diminish his speed, until he was in the act of stepping on the first rail of the main track, when he was struck by the train and killed-the whistle for the brakes being sounded at the same moment. The jury by special verdict, found that M, after hearing the whistle and the noise of the train, and seeing it, attempted to cross the track in front of the locomotive; that if he had stopped just before going upon the land included within defendant's right of way, and looked in the proper direction, he could have see the train; and that he was not guilty of any want of ordinary care in running upon the track as he did. Held, that, in view of the evidence, these findings are inconsistent and it was error to refuse a new trial. Opinion by COLE, J. TAYLOR, J., dissenting.-Kearney v. Chicago, etc. R. Co.

SUPREME COURT OF VERMONT.

[Advance sheets of 51 Vt.]

NEGLIGENCE-INJURY ON HIGHWAY-CONTRIBUTORY NEGLIGENCE EVIDENCE AS TO HIGHWAY AT OTHER PLACES.-I. In case for injury on a public highway, it appeared that the injury was received on a winter road between fifteen and thirty rods in length that ran along by the regular highway and connected with it at each end, and had been generally travelled during a part of each winter for thirty or forty years when the regular highway was impassable from drifts, and had been broken out by the highway surveyor at different times for thirteen years next before the injury complained of, and had been repaired by him within a week of that time. There was no evidence that it was ever opened by the selectmen or by their direction, or in any way except as above. Held, that it was inferable that the road was broken out, used, and repaired by authority of the selectmen, and that the plaintiff might recover as for an injury received on a public highway on a declaration alleging the injury to have been so received. 2. The injury was claimed to have been caused by a cradle-hole and a snow-drift extending diagonally across the travelled track of the road. Plaintiff testified that he had known of the condition of the road and the existence of the cradlehole for three weeks, and knew that the place in question was a dangerous place. Held, that plaintiff was not necessarily guilty of negligence in driving into the cradle-hole, and that in driving into and through it he was bound to the exercise of ordinary care only-such care as a man of ordinary prudence would exercise under like circumstances. 3. Plaintiff was allowed to read in evidence a deposition to which defendant objected for that it appeared therefrom that at the taking thereof defendant's counsel objected to questions put by plaintiff's counsel as leading, and requested the magistrates to write the questions and the objections thereto, and the magistrate refused. Held, that as the court might have admitted the deposition in its discretion, even if the question had been leading, there was no apparent error. 4. Plaintiff was also permitted to show the condition of the road five days before the day the injury was received, and defects other than the one alleged to have occasioned the accident, such as new drifts, etc., and to show the condition of the main summer road at a point five or six rods beyond its intersection with the winter road, and different from the place where the injury was received. Held, inadmissible, and that as it was prejudicial to defendant, the excepting party, its admission was a revisable error. Opinion by Ross, J.-Coates v. Canaan.

BOOK NOTICE.

AMERICAN INTER-STATE LAW. By DAVID RORER of the Iowa Bar, author of "Judicial and Execution Sales." Edited by Levy Mayer, of the Chicago Bar. Chicago: Callaghan & Co. 1879.

This will be a decidely useful text book, the importance of the subject being seen in the fact that over 2,000 cases are cited by the author. The author's labors are shown in the further fact that the principles enunciated in these 2,000 cases are very fairly stated in a volume of little over 350 pages of text. The subject here discussed, to use the words of the author "embraces the law which governs the American States in their dealings and relations with each other as well as with the National government, and the extent of recognition and binding force which is accorded the citizens and aws of each State and of the national government in

the American Courts." But this does not include in ternational law as the same exists between foreign States, nor the political functions of the American States or Union, even where these may have come before the courts. The questions discussed in this treatise are such as frequently come before the profession in their practice; and this being so its usefulness is very manifest.

The treatment of the adjudicated cases is at once concise and exhaustive. Mr. Rorer appears to have

been satisfied in nearly every case to give the conclusions of the courts without criticism and without comment. He shows what the law is, and rests there, which, in a book of this size, is, perhaps, all that could possibly be done. The topics are various; the following among the more important of the chapters being sufficient to show the diverse and intricate questions which have already arisen in this branch of the law: correlation of government, citizenship and allegiance, suability of States; inter-State right of suit, jurisdictional requisites; concurrent civil jurisdiction, State and national; common law, civil law and law of State and national courts; inter-State equity jurisdiction and practice; inter-State law of practice; rules of property and rights of same in State and national courts; actions and suits on judgments and decrees; inter-State proof of records, judicial proceedings and laws; proceedings by foreign attachments; inter-State insolvent discharge by State court; actions for torts and transitory actions; penal and statutory actions not enforceable in other States; extra-territorial force of laws; statutes of limitations; marriage and divorce, Inter-State validity thereof; inter-State legal status of persons; criminal jurisdiction; inter-State rights, powers and duties of executors, administrators and guardians; foreign private corporations; receivers, other trustees and trust funds; removals to United States courts. Under these titles and a number of others the American decisions have been systematically arranged, and though the author does not put forward the common claim that he has cited all the reported cases on the subject of his treatise," yet we believe that a careful examination of the book will show that very few of importance have been passed over. There are, of course, some omissions-in stating the law governing a contract to be partly performed in several States, for example, the author is content to cite two very recent Iowa cases, and to make no mention of a number of other authorities likewise in point. Thus no trace of the following cases is to be found in any part of this book, though properly belonging there: Hale v. New Jersey Steam Navigator Co., 15 Conn. 539; Pennsylvania R. Co. v. Fairchild, 69 Ill. 260; Knowlton v. Erie R. Co., 19 Ohio St. 260; Maghee v. Camden &c. R. Co, 45 N. Y. 514; Gray v. Jackson, 51 N. H. 9; Barter v. Wheeler, 49 N. H. 9; Rixford v. Smith, 52 N. H. 355; Hoadley v. Northern Transportation Co., 115 Mass. 304, and Canter v. Bennett, 39 Tex. 303. But these omissions do not affect the character of this work as a treatise upon the principles of inter-State law, although as a digest of the reported cases it must be considered, to this extent at least, incomplete.

The profession to whom this book should soon become familiar will be pleased to learn that it is the work of a living author in spite of the exceedingly curious titlepage. An editor of a law book certainly suggests a deceased writer and we are at loss in concluding this notice as to how much of our congratulations upon the excellence of the work is due to Mr. Rorer and how much to "Levy Mayer of the Chicago Bar." When we open a new edition of Blackstone or Kent or Story, the question always is how well or how badly the writer who has undertaken the editing of the volumes has performed his work. The text of the author has been examined long ago, and it is not for us to disturb the

verdict, which a generation of lawyers have given. That is res adjudicata as to him; not however as to the new editor who had no part in the writing of the work itself and appears now for the first time. But in the case before us author and editor present themselves together. Together they have produced a creditable work, and one which will be of value to the profession in every State in the Union; and if each is entitled to a moiety of praise there is still enough to divide. Mr. Mayer may have done an equal share of the work or his office may have been simply that of the official reporter in some States-to read the proof, make the table of cases and index,-in which event his portion has been only passably well done. In the other case we have presented to us a specimen of inter-State authorship.

NOTES.

W. W. Johnson has has been elected to the Supreme Court of Ohio vice Chief Justice Gilmore, defeated.

-The Governor of Kentucky has appointed L. D. Husbands, John Feland, and H. A. Tyler, of the bar of that State, to hear the appeal in the case of Buford v. Commonwealth.The Irish Law Times notes the following point in the law of extradition which arose in a recent English case: A German wine merchant surrendered to his bail to answer to the charge of having committed certain frauds in 1874, in the district of Berlin, where, it was alleged, he had been already tried and sentenced for the same offense, but had escaped before the completion of his term of imprisonment. The prosecution and the prisoner were represented by several solicitors. At an early stage of the inquiry one of his solicitors took objection to the warrant, on the ground that a person who had been already punished by the foreign tribunals could not be extradited even though he may have evaded a portion of his term of imprisonment by escaping from the custody of the "sleepy officials" of a German prison. There was no clause in the extradition treaty which would warrant the arrest of a man if he had served one hour of the penalty imposed upon him abroad. The judge decided that the point raised was fatal to the claim,

On the motion for an injunction in the case of The Western Union Telegraph Company v. The American Union Telegraph Company of Indiana, The Wabash Company, and the Central Union Telegraph Company, before Mr. Justice Harlan and Drummond, J., in the United States Circuit Court, for the District of Indiana the following opinion was delivered by Mr. Justice HARLAN, on the 31st of July last. "In the case of the Western Union Telegraph Company against the American Union Telegraph Company and others, in the Circuit Court of the United States for the district of Indiana, I am of the opinion: 1. That the Wabash Railway Company, by its numerous acts of ratification subsequent to its organization, became bound by the contract of May 2nd, 1870, as fully as the Toledo, Wabash & Western Railway Company would be if it were in existence and operating the lines of railway in question. 2. Notwithstanding the relation which some of the promoters of the American Union Telegraph Company, hold to the Wabash Railway Company, the former must be regarded in this suit as an entirely distinct corporation, duly organized under the laws of Indiana, with power to construct and operate lines of telegraph in that State. 3. It was competent for the Railway Company which entered into the contract of 1870, to grant to the Western Union Telegraph Company the privileges, for a term of years, of using its right of way for the purpose of constructing, maintaining and operating lines of telegraph. 4. But consistently with the provisions of the act of Con

gress approved July 24th, 1866, and with the principles announced in the case of Pensacola Telegraph Company v. Western Union Telegraph Company, 96 U. S. 19, the Railway Company could not by contract put it in the power of the Western Union Telegraph Company to exelude from such right of way other telegraph companies, which like the Western Union Telegraph Company accepted the provisions of the said act of 1866, and whose lines when constructed and in operation would not disturb the possession or materially obstruct the operation of the lines of that company. The defendant Railway Company interposes no objection to the occupancy of its right of way by the American Union Telegraph Company; on the contrary it has assented thereto and waived, or does not demand compensation therefor. It was unnecessary, therefore, to institute proceedings against the railway company to condemn its right of way for telegraph purposes, I am satisfied that the new line can be constructed and operated on the railroad company's right of way without interfering with ordinary travel thereon, and without substantially interfering with the successful operation of any lines which complainant has erected or is likely to erect, or need, on and over the same right of way. The complainant is entitled to full protection against interference with the use of its lines, but it is not entitled to be protected by injunction in the exclusive use of the Railway Company's right of way assumed to be granted by the contract of 1870, contrary, as I think, to the public policy declared in the act of Congress and in the foregoing decision of the Supreme Court of the United States. It may be true that the defendant Railway Company has violated the terms of the contract of 1870 by voluntarily assenting to the use of its right of way by the American Union Telegraph company without compensation. Still the court can not make that violation the basis of an injunction against the new company, without putting it in the power of railway companies operating the post roads of the United States, by private agreement with a telegraph company, to defeat the purposes of the act of 1866, which was to make the erection of telegraph lines on the post roads of the United States (the consent of the owners of the right of way being obtained, or such right of way being condemned for telegraph purposes and compensation therofor made), free to all corporations, submitting to the conditions imposed by Congress, even against hostile State legislation. If, in such cases, State legislation can not prevent the occupancy of post roads for telegraph purposes, by such corporations as are willing to avail themselves of the act of Congress, much less could such results be rightfully obtained through private contracts of corporations. Complainant may have an injunction, if it so desires, against all interference whatever with the operation and use by it of its present lines of telegraph, upon and along the roads of the defendant Railway Company, other than such interference as may arise or result from mere business competition with other companies constructing rival lines; and further orders will, in that event, be made during the pendency of this suit, as may be necessary to prevent such interference, but the application for an injunction to prevent the construction, and operation by the defendant telegraph company and all lines of telegraph whatever, upon such right of way, is denied. Judge Drummond will meet counsel in Chicago on the 20th, and such orders will then be entered as may be consistent with what is here said. The views herein expressed are equally applicable to the case between the same parties pending in the Circuit Court of the United States for the Southern District of Illinois, and similar orders will bs entered in that case."

ST. LOUIS, NOVEMBER 7, 1879.

CURRENT TOPICS.

In Dexter v. Cranston, decided by the Supreme Court of Michigan on the 8th ult., the affidavit of publication of a notice of sale showed the notice to have been given in a newspaper "published and circulating in the county" while the statute required such notices to appear in a newspaper "printed in the county." The court held the affidavit sufficient saying: "It is true the statute requires the notice to be published in a 'newspaper, if there be one printed in the same county,' but this means something more that the mere printing the present day the composition and presswork, or in other words the printing, may be done in one county, while the publication and circulation may be exclusively in another, if not indeed sometimes in another State. The publication of a notice in a newspaper printed in a county in which it was not published or circulated would not be a compliance with the statute, no matter how literally it might be within the words thereof." We recollect that about two years ago many

At

inquiries were addressed to us in reference to a statement in the daily press that it had been decided by an associate justice of the Supreme Court of the United States, on circuit, that a notice published in a paper, a part of which was printed in another county, as in the case of what are known as "patent outsides," was not sufficient, because a paper was to be deemed as published from the office at which it was first printed, no matter where it was sent for circulation. See 4 Cent. L. J. 529. We were never able to find that decision which it is safe to say for the reasons then given in our comments on the matter, was never made.

In Leach v. French lately decided by the Supreme Court of Maine, it was held that the owner is liable for the treatment and keep of a horse hired to another and which becomes sick or disabled while in his possession. The defendant let a horse to one D which became Vol. 9-No. 19.

him with the plaintiff for care and cure. In an action by the latter for his services BARROWS J., said: "Upon whom, then, as between D and the defendant, should the expense of keeping and caring for the defendant's horse which 'became diseased and sick while in D hands' fall? Up to the time when he fell sick it was D's business to furnish him at his own proper expense with 'meat for his work.' But how was it when he could no longer lawfully use him under his contract? Unless the horse was disabled through some fault or neglect of D, the owner is the one who bears the burdens occasioned by his failure to perform the work for which he was hired, and among them would be the expense of the care and cure of the animal-an expense which enures directly to his benefit. There would be good reason for holding that in such a case the hirer is ex necessitate, the agent of the owner to procure such reasonable and necessary sustenance and farrier's attendance as might be required until the animal could be got home; for, while the hirer is not responsible for any mistakes which a regular farrier whom he calls in may make in the treatment of the animal, still if instead of applying to a farrier, he undertakes to prescribe for the beast himself, and by his unskilfulness does it a mischief, he assumes a new degree of responsibility and becomes liable to the owner for the result of any want of such care as a man of ordinary prudence would take of his Own horse. Deane v. Keate, 3 Camp. 4." "If a man hires a horse," remarks Lumpkin, J., in Mayor of Columbus v. Howard, 6 Ga. 213, "he is bound to ride it moderately and to treat it as carefully as any man of common discretion would his own, and to supply it with suitable food." Thus doing, if the animal falls sick or lame, without any want of ordinary care on the part of the hirer, he is not responsible to the owner for the consequences. The owner of the animal must bear them. But if the horse falls sick or becomes exhausted, the hirer is bound not to use it. And if he does pursue his journey and use it when reasonable care and attention would forbid, he would make himself responsible to to the owner for that act. Bray v. Mayne, Gow. 1, 5 E. C. L. R. 427. On the other hand, one who lets a horse impliedly under

takes that the animal shall be capable of performing the journey for which he is let; and if, without the fault of the hirer, he becomes disabled by lameness or sickness, so that the hirer is compelled to incur expense to procure other means of returning, such expense may be recouped against the demand of the bailor for the services. Harrington v. Snyder, 3 Barb. 380.

In Ferry v. Williams, which we find reported in the advance sheets of 12 Vroom, the relator, a citizen of the town of Orange, desiring to ascertain whether the provisions of its charter in regard to licensing saloons were being observed, applied to the collector of taxes for an inspection of the letters on which the existing licenses had been granted. The collector refused his request, and the common council, on appeal to them, approved of this refusal, and instructed the collector to persist in his refusal. The relator then applied to the Supreme Court for a mandamus to compel the collector to allow the inspection, asserting no interest to be subserved by an inspection of the letters, except that common interest which every citizen has in the enforcement of the laws and ordinances of the community wherein he dwells. The court granted a mandamus. In England, the occasions which have generally required the exercise of the power of the court to enforce inspection of public documents, have been those where a party has sought evidence for the prosecution or defense of his rights in pending litigation. In such cases, when the custodian of the documents was a party in the case, the court usually intervened by rule, otherwise by mandamus. But the existence of a suit was not a sine qua non for the exertion of the power. In Rex v. Lucas, 10 East 235 a mandamus was sought to compel the steward of the manor to permit one claiming certain copyhold lands within the manor to inspect the court rolls and takes copies. The lord, claiming himself to be the owner of the lands, resisted on the ground that there was no cause depending; but the Court of King's Bench granted the writ, notwithstanding the opinion before expressed in Rex v. Allgood, 7 T. R. 742, Lord Ellenborough saying: "I do not know why there should he any cause depending in

order to found an application of this sort. This is not the impertinent intrusion of a stranger, but the application of one who is clearly entitled to the copyhold, unless there be a conveyance of it by those under whom he claims; he may, therefore, well require to see whether there appears upon the rolls to be any such conveyance. So in Rex v. Tower, 4 M. & S. 162, on a controversy, but without suit, between a tenant of the manor and the lord, as to cutting underwood, the court granted a mandamus to inspect the court rolls so far as related to the subject. Likewise in Rex v. Justices of Leicester, 4 B. & C. 891, a mandamus was granted that certain ratepayers be allowed to inspect and take copies of the proceedings and documents relating to the parish rates, although no suit was pending; and while this case is disapproved in Rex v. Vestrymer of St. Marylebone, 5 A. & E. 268, and overruled in Rex v. Justice of Staffordshire, 6 A. & E. 84, yet in neither case is it suggssted that it was erroneous because no action had been brought. The disapprobation turns upon the principle that the ratepayers had no interest to be subserved by the inspeetion, since no information to be obtained from the documents could aid them in enforcement or protection of any lawful claim, Lord Denman saying, in the last case cited, that the subjectmatter was not one which the ratepayer could bring before the court as a litigant, and hence there was not that direct and tangible interest which is necessary to bring persons within the rule on which the court acts in granting inspection of public documents. In Rex v. Merchant Tailors' Co., 2 B. & Ad. 115, although a mandamus was refused to members of the company seeking an inspection of all the records, books, papers and muniments of the company, because of the generality of the

application, it was conceded by all the judges that if the application had been limited to some legitimate and particular purpose in respect of which the examination became necessary, it would have been allowed, and that there was no rule that to warrant an order to inspect corporation documents, there must actually have been a suit instituted. It seems, therefore, to be sufficient if the person seeking inspection has such an iuterest in a specific controversy as will enable him to maintain or defend an action, for which the public