2.

Alteration of Instruments-Material Alteration. The change of a promissory note, to evidence a conditional vendor's lien upon property given for the note, was material alteration.Gray v. Williams, Vt., 99 Atl. 735.

3. Arrest-Mesne Process.-The fact that debtor owned real estate situated outside the state and intended to go there was not taking with him "means," within the language of Rev. St. c. 114, § 2, authorizing arrest on mesne process; "means" not being method but portable assets, tangible or intangible.-Dunsmore V. Pratt, Me., 99 Atl. 717.

4. Attachment-Bond.-In action upon joint and several bond substituted for attached property, wherein the defendants in the attachment action were principals, and a third party was surety, fact that one of principals had been dropped from attachment action did not increase liability of other parties to bond so as to discharge surety.-King v. Malone, Conn., 99 Atl. 691.

5. Attorney and Client Courtesy.-Rule of courtesy among members of bar, that each will

render services to others without expectation of reward other than by way of similar services, cannot be strained to meet case of one who, having practically withdrawn from profession, demands such courtesy as aid in accumulating wealth in another pursuit.-Thigpen & Herold v. Slattery, La., 73 So. 780.

6.- -Disbarment.-The mere fact that a petition for disbarment of an attorney was entitled, "In the Supreme Court of the State of Oregon in and for Multnomah County," did not invalidate it,but the addition of the words naming the county was clerical error, and could not mislead defendant.-State v. Greenfield, Ore., 162 Pac.

858.

7. Disbarment.-Findings that the accused attorney had fraudulently secured release of his mortgage, and converted to his own use money deposited with him by a client, and had fraudulently secured signatures of heirs to an agreement for a fee,and assignment, by which he collected and converted their money, warrant disbarment. In re Van Ruschen, S. D., 160 N. W. 1006.

8. Employment.-The rule prohibiting an attorney once retained from acting for the opposing party applies only in case of conflicting interest, in the absence of a contract.--Laybourne v. Bray & Shifflett, Tex., 190 S. W. 1159. 9. Bankruptcy-Book Account.-Where bankrupt joined with trustee and purchaser of claim in action against railroads for damage to shipment of corn, purchaser's right to sue held not affected by judgment of bankruptcy court describing property sold him merely as "book accounts."-Southern Ry. Co. v. Avey, Ky., 191 S

W. 460.

10. Corporation.-Where a corporation declares dividends though no profits are earned, trustee in bankruptcy may recover such dividends from stockholders for benefit of subsequent creditors.-Mackall v. Pocock, Minn., 161 N. W. 228.

11.

-Retention of Title.-Trustee in bankruptcy of buyer of suit of clothes for $20, who paid $3 of price, seller retaining title by contract in writing, held not bound to interfere with seller's action in detinue in state court to enforce security, unless there was a reasonable ground for believing that surplus would be realized.-Hardcastle v. National Clothing Co., Tenn., 191 S. W. 524.

12. Banks and Banking-Collateral.-Bank notifying drawer of draft, with bill of lading attached, that it has sufficient collateral to pay it, and guaranteeing payment, on faith of which drawer delivers bill of lading and relies solely upon bank for payment, becomes liable on an original and enforceable undertaking.-Bank of Omega v. Wingo, Ellet & Crump Shoe Co., Ga-, 91 S. E. 251.

13. -Pensions.-The stockholders of a national bank have the incidental power to create a pension fund to be shared by officers and employes.-Heinz v. National Bank of Commerce in St. Louis, U. S. C. C. A., 237 Fed. 942.

14. Presumptive Knowledge.-Where officer of a bank is personally interested in a transaction to which bank is a party in interest, bank

is not charged with knowledge acquired by officer in regard to transaction as he will not be presumed to impart knowledge which is adverse to his own interest unless officer acts for both banks or is sole representative of bank with which he deals.-Ohio Valley Banking and Trust Co. v. Citizens' Nat. Bank, Ky., 191 S. W. 433.

15. Rescission.-Plaintiff, induced by fraudulent representations of president of bank to subscribe for its stock, giving note, held entitled to rescission of subscription contract, and to cancellation of note, in banking commissioner's action thereon on the bank's insolvency.Smith v. Jones, Ky.. 191 S. W. 500.

16. Bills and Notes-Accommodation Maker.Where, contrary to the agreement upon which a neighbor, for accommodation, signed a note as joint maker, that the accommodated maker should discount it at a bank for cash, the accommodated maker negotiated it after maturity for corporate stock, the accommodation maker was not liable to a transferee after maturity, under Rev. St. 1909, § 10028, as to holders in due course. Schlamp v. Manewal, Mo., 190 S. W. 658.

17. Descriptio Personae.-Under Negotiable Instruments Law (Rev. St. 1909, § 9991) as to form of signature on notes, where notes given for a piano purchased by a corporation were signed by the corporation and by another person with no official designation, the latter signer was liable to the payee, although in fact secretary of the corporation and intending to sign as such. Rudolph Wurlitzer Co. v. Rossmann, Mo., 190 S. W. 636.

18. Designatio Personae. A corporation's president, by writing his mere name upon the back of the company's note, without the addition of any qualifying language, became an indorser, under Negotiable Instruments Law, § 113.-Mechanic v. Elgie Iron Works, N. Y., 163 N. Y. Supp. 97.

19.- -Notice of Dishonor.-Where a note was not negotiated before maturity, but remained in the hands of the original obligees, a maker and original obligor was not entitled to notice of dishonor or nonpayment thereof under Negotiable Instruments Law, Ky. St. § 3720b, subsecs. 102-104.-Sim V. Citizens' Bank of Carrsville, Ky., 191 S. W. 489.

20. Pleading and Practice.-Where defendant pleaded he executed a note as a stockholder of bank for amount of par value of his stock under agreement that, should bank recover losses sustained, the recovery should be applied to notes given by several stockholders, only issues raised were existence of agreement and amount of credit.-Thompson v. Citizens' Bank, Ga., 91 S. E. 84.

reloaded, and sealed, there was an initial shipment from siding, so that under uniform bill of lading carrier was not liable where metallics were stolen from car before attached to train.Siebert v. Erie R. R., N. Y., 163 N. Y. Supp. 111.

23. Intermediate Carrier.-Under Carmack Amendment to Interstate Commerce Act, shipper over connecting lines still has remedy against intermediate carrier for loss occuring on its line only. Southern Ry. Co. v. Avey, Ky., 191 S. W. 460.

24. Lien.-Where a person furnishes and delivers materials and includes cartage expenses in the price of the materials, his statutory lien upon the completed structure may include cartage expenses as well as the price of the materials. Siler Mill Co. v. Charles Nelson Co., Wash., 162 Pac. 590.

25. Lien.-Where contract of interstate shipment is invalid because made at rate other than that prescribed by published schedule rates, carrier under Rev. Laws 1910, §§ 847, 3845, 3852, has a lien for charges.-St. Louis, I. M. & S. Ry. Co. v. McNabb, Okla., 162 Pac. 811.

26. Switching Arrangements.-Under provision of uniform bill of lading that property received from private or other sidings should be at owner's risk until cars were attached to trains, track on carrier's right of way parallel to its main track and connected therewith by two switches was a siding, and within the term "other sidings."-Bers v. Erie R. Co., N. Y., 163 N. Y. Supp. 114.

27. Commerce-Congressional Inaction.-Congressional inaction leaves a state free to impose such burden on interstate commerce as may result from Gen. Code Ohio, §§ 6373-1 to 637324, forbidding sale of corporate stock within state without state license.-Hall v. GeigerJones Co., U. S. S. C., 37 Sup. Ct. 217.

28. Employe.-Under federal Employers' Liability Act, an employe may have duties involving both interstate and intrastate commerce, and where plaintiff, regularly employed in replacing old rails, was, when accident occurred, loading old rails lying on right of way, he was not then engaged in interstate commerce. Cincinnati, N. O. & T. P. Ry. Co. v. Hansford, Ky., 190 S. W. 690.

29. Employers' Liability Act.-The common-law liability of a railroad company, when engaged in intrastate commerce continues despite the federal Employers' Liability Act, and the right to recover from it when so engaged is based on the common law.-Hogarty v. Philadelphia & R. Ry. Co., Pa., 99 Atl. 741.

30. Installation.-Contract by foreign corporation which has not complied with the laws (Gen. St. 1913, §§ 6206, 6207) for sale to resident of machine coupled with agreement to install same is not protected as interstate commerce, agreement for installation not being essential part of sale; hence contract is unenforceable.Palm Vacuum Cleaner Co. v. Bjornstad, Minn., 161 N. W. 215.

31. Compromise and Settlement-Equity.

Although Rev. St. 1909, § 1812, providing that when a release is pleaded in bar, the reply may allege fraud, etc., changed the rule that a re

lease can only be set aside in equity, the statute was not intended to change the rules governing rescission of contracts of settlement for fraud. -Wessel v. Wm. Waltke & Co., Mo., 190 S. W. 628.

32. Constitutional Law-Blue Sky Law.Const. U. S. Amend. 14 does not prevent state from enacting under its police power Laws S. D. 1915, c. 275, forbidding, with certain exceptions, sale of corporate securities without a license and without the approval of the state securities commission.-Caldwell v. Sioux Falls Stockyards Co., U. S. S. C. 37 Sup. Ct. 224.

33. Due Process Clause.-An order of the state Public Service Commission requiring passenger service on a branch road is not in violation of due process of law and equal protection of the laws, under Const. U. S. Amend. 14, though passenger service alone may entail pecuniary loss, where under local law (Acts W. Va. 1881, c. 17, §§ 69, 71) such branch line was devoted to transportation of passengers as well as freight, though actually used for the latter.-Chesapeake & O. Ry. Co. v. Public Service Commission of West Virginia, U. S. S. C., 37 Sup. Ct. 234.

34. Fourteenth Amendment. Pub. Acts Mich. 1915, No. 46, does not deny equal protection of the laws because exempting from its operation securities listed in any standard manual approved by the state securities commission, and authorizing commission when necessary to suspend sale of securities.-Merrick v. N. W. Halsey & Co., U. S. S. C., 37 Sup. Ct. 227.

35. License.-Gen. Code Ohio, §§ 6373-1 to 6373-24, requiring license as condition precedent to dealing in corporate securities, is not invalid as preventing purchases and shielding purchasers from loss of property because of their own defective judgments.-Hall v. GeigerJones Co., U. S. S. C. 37 Sup. Ct. 217.

36. Contempt-Newspaper Publication.-Publications in newspapers sold in the city where the court sat, etc., tending to obstruct administration of justice, held direct contempt, punishable under Judicial Code, § 268.-Toledo Newspaper Co. v. United States, U. S. C. C. A., 237 Fed. 986.

37. Customs and Usages-Fraud.-In action against automobile manufacturer for agent's fraud, evidence by defendant of a custom among motor car manufacturers of using such terms as "agents" and "commissions" in a sense opposite to their legal and generally understood meaning was inadmissible; it being a palpable distortion of common terms.-Renick v. Brooke, Mo., 190 S. W. 641.

bility Act (Acts 1909, p. 160; Civ. Code 1910, §§ 2781, 2782).-Lamb v. Tucker, Ga., 91 S. E. 66. the grantor of

40. Deeds-Fraud.-Where land had several years to consider trade and in which to sell to others for a higher price, which she could not do, and at time of execution of deed consideration paid was sufficient, neither defendant nor its agents were guilty of fraud, oppression, or coercion in urging her to convey land in accordance with her contract with defendant.-Finlayson v. Cuyuga Coal & Coke Co., Ky., 191 S. W. 486.

41. Divorce Custody of Children.-In action concerning custody of minor child of the parties, which, upon their divorce, had been awarded to defendant, begun without any ground therefor, judgment for defendant for costs and attorney's fees, without findings of fact or conclusions of law, will be reversed.-Styles v. Styles, N. D., 161 N. W. 198.

42. Evidence. In action by wife for limited divorce, evidence tending to show that defendant married for the double purpose of obtaining a housekeeper and obtaining possession of her money held to entitle plaintiff to relief asked.-Phillips v. Phillips, Ky., 191 S. W. 482.

43. Legal Discretion.-Where testimony of plaintiff, if believed, entitled her to divorce, and was corroborated by her mother, refusal to grant divorce without hearing testimony of defendant is an abuse of legal discretion requiring reversal and remand.-Brueggerman v. Brueggerman, Tex., 191 S. W. 570.

44. Frauds, Statute of-Oral Contract.-Piping a house for gas and slight expenditure for wallpaper held so insignificant as not to amount to improvements taking an oral contract for sale of the land out of the statute of frauds (Vernon's Sayles' Ann. Civ. St. 1914, art. 3965, subd. 4). Ryan v. Lofton, Tex., 190 S. W. 752.

45. Fraudulent Conveyances-Insolvency. Where the alleged fraudulent transfer was made when transferor was not insolvent and did not render him insolvent, the conveyance cannot be set aside as in fraud of creditors.-ChristopherSimpson Iron Works Co. v. Bajohr, Mo., 190 S. W. 615.

49.

Highways-Assumption of Conduct.—Automobile driver on highway, seeing that team on left side thereof, may assume that the driver will go to the right side, until it becomes obvious that he was making no effort to do so, or that danger of collision was imminent.-Cook v. Standard Oil Co., Ala., 73 So. 763.

50.-County Bonds.-Const. art. 3, § 52, as amended in 1903, authorizing counties, etc., to issue bonds to construct "paved" roads, empowers counties, etc.. to construct shell roads.Aransas County v. Coleman-Fulton Pasture Co., Tex., 191 S. W. 556.

52.- -Town Lots.-Where a man and wife reside in a building upon two ordinary town lots owned by them for several years, and have no other home, such building, though they conduct a hotel therein, will be deemed their homestead. -Foltz v. Maxwell, Neb., 161 N. W. 254.

53. Insurance-Accident.-Under accident insurance policy covering "the effects of bodily injuries sustained directly, solely, and exclusively through accidental means," it was necessary to show that in act preceding injury causing death there was something unforseen, unexpected and unusual.-Fulton v. Metropolitan Casualty Ins. Co. of New York, Ga., 91 S. E. 228.

54. Burden of Proof.-Where under accident policy suit is brought for entire and irrecoverable loss of an eye, plaintiff must show that the loss is both entire and irrecoverable.-Wilkins v. Georgia Casualty Co., Ga., 91 S. E. 224.

55. Estoppel.-Where a mutual assessment company sets out in certificate synopsis of by-. laws, leading insured to believe that it contains all provisions applicable, insured may rely on such synopsis, and company is estopped to deny liability under a by-law which insured was led to overlook or believe had no application.-Bierbach v. Mutual Benefit Health & Accident Ass'n, Neb., 161 N. W. 251.

56. Evidence.-An admission by an applicant for an accident policy that he was a farm foreman would necessarily be limited to the time when it was made, and was not an admission that this was his occupation when he was subsequently injured by accident.-Provident Life & Accident Ins. Co. of Chattanooga, Tenn., v. Black, Ala., 73 So. 757.

57. Fraternal Association.-Where member of fraternal insurer appears at trial before committee and is expelled, judgment being one which committee has authority to make, such member must pursue the appeal given to supreme body of order and cannot appeal to courts. -National Council of Knights & Ladies of Security v. Turovh, Minn., 161 N. W. 225.

58. -Place of Contract.-Where insurance policy was issued by Missouri corporation and signed by its officials in Missouri, but insured and beneficiary were residents of Illinois, and policy was delivered there, it was an Illinois contract.- -Lukens v. International Life Ins. Co., Mo., 191 S. W. 418.

59.- -Stipulations. Where insured merely ordered insurance on certain property which the agent said he would write and leave for him with a bank, the policy held not avoided by its stipulation that it should be avoided by existing insurance, where insured had not taken policy from bank when loss occurred, Ky. St., § 639, not

applying.-Springfield Fire & Marine Ins. Co. v. Snowden, Ky., 191 S. W. 439.

60.- -Total Disability. The meaning of the phrase "total disability" in an accident policy is relative, depending on the particular circumstances, and is a question of fact for the court or jury trying the case.-American Liability Co. v. Bowman, Ind., 114 N. E. 992.

61. Waiver.-A written application by an employe for an employe's fidelity bond, which expressly stipulated that he would reimburse surety company for loss sustained by it on account of bond, did not constitute waiver on part of company of provision in bond that it would be invalid unless signed by employe.-National Surety Co. v. Rieves, Miss., 73 So. 732.

62. Intoxicating Liquors-Evidence.-Act No. -202 of 1914, and Act No. 23 of Ex. Sess., 1915, relating to the keeping and admission in evidence of records showing shipments of intoxicating liquors into dry territory, ex vi termini, have no application to shipments into wet territory. State v. Maddox, La., 73 So. 783.

63. Indictment.-An indictment under Acts 1916, c. 31, § 2 (9F), forbidding leasing grounds for Sunday liquor-using picnics, need not state specifically the location of the property, where the ownership by defendant of the premises within the county is alleged.-Benesch v. State, Md., 99 Atl. 702.

64. Intent.-As to offense of keeping liquors on hand at defendant's place of business, quantity kept was immaterial.-Harper v. State, Ga., 91 S. E. 231.

65. Police Power.-Statutes forbidding storing and delivering of intoxicating liquors in one state for sale in another state are within the police power of the state and constitutional.— State v. Theodore, Mo., 191 S. W. 422.

1914, c.

66. Licenses Privilege Tax.-Laws 112, § 1. imposing a privilege tax to state of $2,000 per annum upon money loaning business where a greater rate of interest than 20 per cent per annum is charged, held not unconstitutional because imposed only on such businesses.-State v. Rombach, Miss., 73 So. 731.

67. Limitation of Actions-Federal Employers' Liability Act.-After expiration of the twoyear limitation prescribed by the act, a railroad employe, whose statement of claim set forth a common-law action, cannot amend the same so as to bring it within federal Employers' Liability Act.-Hogarty v. Philadelphia & R. Ry. Co., Pa.. 99 Atl. 741.

68. Starting Point.-The two-year statute of limitations does not begin to run against a railroad corporation which had resumed possession of its property after receivership for acts of the receivers until the resumption of possession. Kansas City, M. & O. Ry. Co. of Texas v. Weaver, Tex., 191 S. W. 591.

69. Master and Servant-Assumption of Risk. -Under federal Employers' Liability Act, railroad brakeman killed between two cars when engineer failed to obey his stop signal held not to have assumed risk in placing himself before standing car; the engineer's act being that of the master.-Gulf, C. & S. F. Ry. Co. v. Cooper, Tex., 191 S. W. 579.

70. Casual Employment.-One employed as foreman over other carpenters in the erection of a building, involving several months of regular labor, is not "casually" employed within the Workmen's Compensation Act.-Miller & Lux v. Industrial Acc. Commission of California, Cal., 162 Pac. 651.

71. Farm Labor.-A carpenter constructing a cottage for a large corporation on one of its ranch properties does not come within the express exclusion of Workmen's Compensation Act, § 11, as one engaged in "farm labor."— Miller & Lux v. Industrial Acc. Commission of California, Cal., 162 Pac. 651.

72. -Jurisdiction.-Under Rev. Code 1915, §§ 6604-1. 6604-2, 6604-27, stevedore injured while in the hold of a ship unloading it in navigable waters of Puget Sound was not within the act, and that his rights and remedies remained unimpaired.-Shaughnessy v. Northland S. S. Co., Wash., 162 Pac. 546.

73. Negligence.-A mechanic, who participated in efforts to extinguish a fire in a mine, held entitled to have the company use ordinary care, so as not to increase his injury; so it was negligence to start a fan without warning, disseminating smoke, and resulting in his injury.Western Coal & Mining Co. v. McCallum, U. S. C. C. A.. 237 Fed. 1003.

74. Res Ipsa Loquitur.-Railroad conductor injured in rear end collision when his train was pulling onto siding to make way for another train, made out a prima facie case when he proved rule requiring trains not to exceed six miles per hour on an obstructed track, and that the train which collided with his was going at a greater rate of speed, while he was conforming to the rule.-Louisville & N. R. Co. v. Mitchell, Ky., 191 S. W. 465.

75. Municipal Corporations-Breach of Contract. Where corporation breached its contract for reduction of garbage by refusing to receive further garbage, subsequent offers in writing to perform contract were ineffective to nullify

breach or affect the city's right of action.City of Bridgeport v. Aetna Indemnity Co., Conn., 99 Atl. 566.

not

76. Estoppel. -A municipality is estopped from passing an ordinance prohibiting keeping of gasoline, etc., in quantities within 300 feet of a dwelling, etc., by having once required the tanks of an oil company in the municipality to be moved to an approved site.-Pierce Oil Corp. v. City of Hope, Ark., 191 S. W. 405.

77.-Governmental Duty.-A municipal corporation, without any statutory requirements, is not bound to light its streets with lamps, and from exercise of its discretion as to whether it will do so or not no liability arises.-City of Greensboro v. Robinson, Ga., 91 S. E. 244.

78.-Highway.-A speedway in a park, elliptical in shape, used for horse racing and exercising, subject to prescribed rules of the park commissioner, is not a "highway" and law of road has no applicability to it.-Eckert v. Levinson, Conn., 99 Atl. 699.

de

79. Names-Plea in Abatement.-Where fendant was indicted as "Golson," the plea in abatement alleging that her correct name was "Gholston" is insufficient.-Golson v. State, Ala., 73 So. 753.

80. Negligence-Ejection of Intruder.-Where saloon keeper ejected drunken man with such force that he fell on child on sidewalk, he is not relieved of liability as to the child because his conduct as to intoxicated person was rightful. Feeney v. Mehlinger. Minn., 161 N. W. 220.

81. Neutrality Laws-Violation of. It is no defense to a prosecution under Penal Code, § 13, for conspiring to prepare a military expedition from the United States against the United States of Mexico, with which the former was at peace, that the government controlling Mexico had not been recognized.-De Orozco v. United States, U. S. C. C. A., 237 Fed. 1008.

de

85.Contributory Negligence.-Where cedent, who was deaf, and had been warned of danger, attempted to cross a trestle, he was guilty of contributory negligence, though before reaching trestle he stopped, looked and listened to ascertain whether a train was approaching from rear, the view being somewhat obstructed. -Nashville, C. & St. L. Ry. v. Wyette, Ga., 91 S. E. 69.

86.- Crossings.-Party invited to cross railroad crossing by conduct of road, its employes or agents, or even directly by an employe, is not justified in acting as though the crossing were not dangerous.-Hayes v. New York, N. H. & H. R. Co., Conn., 99 Atl. 694.

87. Negligence per se.-A deaf person who voluntarily stands at a railroad crossing dangerously near the tracks on which an expected train is approaching, where he cannot see signals or the train, and is struck, is guilty of negligence barring recovery.-Nelson v. Texas & P. Ry. Co., La., 73 So. 769.

88. Sales-Antecedent Debts.-The mere taking by transfer and bill of sale of the business and accounts of a person, without any assumption of indebtedness, will not make the transferee liable for antecedent debts growing out of

the business.-Texas Auto & Supply Co. v. Magnolia Petroleum Co., Tex., 191 S. W. 573.

89. Express Warranty.-A positive representation, by the agent of the seller of an automobile, to induce the buyer to make the purchase, that the car was a 1912 model, constituted when acted upon an express warranty.-Morris v. Fiat Motor Sales Co. of California, Cal., 162 Pac. 663.

defendant, in suit

90. Rescission.-Where upon notes for purchase price of a locomotive, filed a counterclaim asking for cancellation of unpaid notes and recovery of payments made, this was a rescission of the contract.-Glover Mach. Works v. Cooke-Jellico Coal Co., Ky., 191 S. W. 516.

91. Special Warranty.-Where defendants ordered "one 30 horsepower engine," on order blank containing no warranties, except that machinery would be of good material, and equal or better than any other machine of equal size and proportions when properly handled, there was no warranty as to horsepower.-J. I. Case Threshing Mach. Co. v. Copren Bros., Cal., 162 Pac. 647.

92. Special Warranty.--Where a written contract for sale of mule warranted that it was about ten years old, and declared seller warranted only title thereto, statements should be construed as warranting that mule was about ten years old, but not warranting its fitness for work.-McDew v. Hollingsworth, Ga., 91 S. E.

246.

93. Sunday-Bail Bond.-A bail bond executed on Sunday, given to secure the release of one arrested in Texas on a charge of violating the federal law, is valid under the Texas laws, which govern, pursuant to Rev. St. § 1014 (Comp. St. 1913, § 1674).-De Orozco v. United States, U. S. C. C. A.. 237 Fed, 1008.

94.- -Sales.-The selling on Sunday by a confectioner of soda water, soft drinks, coca cola, cigars, and tobacco, violates the Sunday law, notwithstanding incidental sale of sandwiches. canned goods, etc.-McAfee v. Commonwealth, Ky., 190 S. W. 671.

95. Vendor and Purchaser Deficiency.— Where a contract for the purchase of land described it by metes and bounds and ended, "containing 32 acres more or less," the plain meaning is that parties are to run risk of gain or loss. and if there is only a trifle less than 32 acres, the shortage is not material.-Andrews v. Sercombe, Ore., 162 Pac. $36.

96. Record Notice.-Actual knowledge by a purchaser of land of a deed of trust thereon imposes on him no greater duty of inquiring into the state of the title than does constructive notice from the fact of its being recorded.Barksdale v. Learnard, Miss., 73 So. 736.

97. Tender.-Where agreements in contract for sale of land as to conveyance free of incumbrance, and as to payment of balance of purchase price was mutual and dependent, neither could recover against other for nonperformance without offering or tendering performance, or showing some excuse therefor.-Phillips v. Sturm, Conn., 99 Atl. 689.

98. Waters and Water Courses-EstoppelWhere the owner of land traversed by a creek, sold a part of it to a municipality, covenanting that the municipality should have the right to take water for necessary purposes, and thereafter sold the remainder of the tract, the municipality cannot dam the creek so as to render lands of second grantee wet and unfit for cultivation. -City of Jackson v. Wilson, Ga., 91 S. E. 63. 99.

Wills Presumption of Testacy.-Where the testator in terms devises "all of his estate. real and personal," the presumption is that he did not intend to die intestate as to any part of it, and his will, if possible, will be so construed.- -Hale v. Neilson, Miss., 72 So. 1011.

100. Testamentary Instrument.-An instrument executed by three brothers, providing that on the death of one his interest in the property should vest in the others, so that the business might be carried on without interruption, held testamentary in character, so as not to operate as a deed. Thomas v. Byrd, Miss., 73 So. 725.