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as a witness and the payment to him of a sufficient sum to secure his attendance at the court during the trial, was in any respect an irregularity, or did any wrong to the prisoner. It seems to us that the district-attorney was acting in the line of his duty as public prosecutor in securing the attendance of a proper medical witness of high repute to meet the distinguished medical experts, which he knew the prisoner expected to call on his side. The district-attorney, it is true, might have required the attendance of Dr. Hammond on subpœna, but that would not have sufficed to qualify him to testify as an expert with clearness and certainty upon the questions involved. He would have met the requirements of the subpœna if he had appeared in court when he was required to testify and give proper impromptu answers to such questions as might then have been put to him in behalf of the People. He could not have been required, under process of subpoena, to examine the case, and to have used his skill and knowledge to enable him to give an opinion upon any points of the case, nor to have attended during the whole trial and attentively considered and carefully heard all the testimony given on both sides, in order to qualify him to give a deliberate opinion upon such testimony, as an expert, in respect to the question of the sanity of the prisoner. Professional witnesses, I suppose, are more or less paid for their time, services and expenses, when called as experts in important cases, in all parts of the country."

These cases go far to establish the position contended for by the appellant. But, on the other hand, the case of ex parte Dement, decided by the Supreme Court of Alabama, and reported in 6 Cent. L. J., 11, deeides that a physician or surgeon may be compelled to testify as an expert, where the testimony is relevant to a cause pending before a judicial tribunal, without being paid as for a professional opinion.

Having thus considered the cases that have come under our notice bearing on the subject, it may be well to look at the works of text writers, for they furnish at least some evidence of what the law is. In 1 Taylor's Med. Jur., p. 19, it is said:

"Be

fore being sworn to deliver his evidence, a medical or scientific witness may claim the payment of his customary fees, unless an arrangement has already been made between him and the solicitors who have sent him a subpoena. These fees are generally made matter of private arrangement between the witness and the attorney." This clearly implies that he is to be paid his customary fees for an opinion, and that he may demand payment before delivering his evidence. But we doubt whether he could make the demand before being sworn, for he might be called upon to prove some fact within his knowledge.

In The Jurisprudence of Medicine in its Relations to the Law of Contracts, Torts and Evidence, by John Ordroneaux, secs. 114, 115, it is said: "But once put upon the stand as a skilled witness, his (the physician's) obligation to the public now ceases, and he stands in the position of any professional man consulted in relation to a subject on

which his opinion is sought. It is evident that the skill and professional experience of a man are so far his individual capital and property, that he can not be compelled to bestow it gratuitously upon any party. Neither the public, any more than any private person, have a right to extort services from him in the line of his profession without adequate compensation. On the witness-stand, precisely as in his office, his opinions may be. given or withheld at pleasure, for a skilled witness can not be compelled to give an opinion, nor be committed for contempt if he refuses to do * As the result of the foregoing conclusions, it may be said that a witness who is called in an action to depose to a matter of opinion, depending on his skill in a particular trade, has, before he is examined, a right to demand from the party calling him a compensation for his services; for there is a wide distinction between a witness thus called and a witness who is called to depose to facts which he saw." Then follow the remarks of Maule, J., in the case of Webb v. Paige, which have already appeared in this opinion.

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In 2 Phil. Ev., 4 Am. Ed., p. 828, it is said: "With respect to compensation for loss of time, the general rule is that it ought not to be allowed; though some compensation has usually been allowed to medical men and attorneys, but not others. And there seems to be a reasonable distinction between the case of a witness called to depose to a fact, and one who is called to speak to a matter of opinion, depending on his skill in a particular profession or trade; the former is bound, as a matter of public duty, to speak to the fact which has occurred within his knowledge, but the latter is under no such obligation, and is selected by the party to give his opinion merely, and he is entitled, therefore, to demand a compensation for loss of time."

In 1 Redf. on Wills, note 44 to pl. 31, p. 154-5, the author says: "The following propositions may be of interest: 1. It is clear that experts are not obliged to give testimony upon mere speculative grounds, and where they have no personal knowledge of the facts in the case. If they have had personal knowledge of the testator, it may fairly be regarded as amounting to the knowledge of facts. But unless this is the case, a medical witness is not obliged to obey the ordinary witness subpoena, and will not be held in contempt for disobeying it. This has been so ruled at nisi prius in England within the last few years. 2. The expert is not obliged to examine books and precedents, with a view to qualify himself to give testimony; nor is he obliged to examine into the facts of cases by personal inspection of individuals, whose state may be the subject of controversy in the courts. 3. It being purely matter of conventional arrangement between professional experts and those who desire to employ them as witnesses, both in regard to their acting as such, and also their making preparation to enable them to give such testimony, it virtually places a price upon such testimony in the market, and its price is likely to range somewhat according to its ability to aid one or the other of the parties litigant. The tendency of this is to

make it partisan and one-sided, as a general thing."

Judge Redfield in no manner dissents from the above propositions as legal ones, but suggests, not that experts are not entitled to be paid, but that the law should be so changed "that this class of witnesses should be selected by the court, and that this should be done wholly independent of any nomination, recommendation or interference of the parties, as much so, to all intents, as are the jurors. To this end, therefore, the compensation of scientific experts should be fixed by statute, or by the court, and paid out of the public treasury, and either charged to the expense of the trial, as part of the costs of the cause, or not, as the legislature should deem the wisest policy." Iowa has legislated upon the subject, so that the court is to fix the compensation with reference to the time employed, and the degree of learning or skill required. Snyder v. Iowa City, 40 Iowa, 646.

These elementary authorities, and the cases of Webb v. Paige, and In the Matter of Roelker, supra, clearly and unmistakably point to the conclusion that the appellant was not bound to give his professional opinion without having been paid therefor. It would seem on general principles that the knowledge and learning of a physician should be regarded as his property which ought not to be extorted from him in the form of opinions without just compensation. As it was said by this court of an attorney in the case of Webb v. Baird, 6 Ind. 13: "To the attorney, his profession is the means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic. The law which requires gratuitous services from a particular class, in effect imposes a tax to that extent upon such class-clearly in violation of the fundamental law, which provides for a uniform and equal rate of assessment and taxation upon all the citizens. * * The idea of one calling enjoying peculiar privileges, and therefore being more honorable than any other, is not congenial to our institutions. And that any class should be paid for their particular services in empty honors is an obsolete idea, belonging to another age and to a state of society hostile to liberty and equal rights."

In Israel v, The State, 8 Ind. 467, it was held that the services of witnesses, in criminal cases, were not" particular services," within the meaning of the constitution. This is conceded. Witnesses who know anything of a case, however high or low, rich or poor, learned or unlearned they may be, or whether occupying public or private stations in life, all stand upon an equality in this respect and must attend as witnesses without other compensation than that provided by law. This is a burden that falls upon all alike. The witnesses are bound to attend, and, in the language of some of the authorities before cited, "speak to the facts which have occurred within their knowledge." But the case decides nothing upon the point here involved. The case of Blythe v. The State, 4 Ind. 525, however, is exactly in point in principle.

There Blythe, an attorney of the court, was appointed to defend a pauper.on the charge of a larceny. Blythe denied the right of the court to demand his professional services without compensation and refused to act. For this refusal the court

adjudged him guilty of contempt. This court held, under the provision of the constitution above set out, that he was not bound to perform the service.

In Webb v. Baird, 6 Ind. 13, Baird had been appointed to defend a pauper on a criminal charge and had performed the service, and the question involved was whether he was entitled to compensation from the county. Judge Stuart said in delivering the opinion of the court, that "the law which requires gratuitous services from a particular class, in effect imposes a tax to that extent upon such class-clearly in violation of the fundamental law, which provides for a uniform and equal rate of assessment and taxation upon all the citizen s."

Buf if the professional services of a lawyer cannot be required in a civil or criminal case without compensation, how can the professional services of a physician be thus required? Is not his medical knowledge his capital stock? Are his professional services more at the mercy of the public than the services of a lawyer? When a physician testifies as an expert by giving his opinion, he is performing a strictly professional service. To be sure he performs that service under the sanction of an oath. So does the lawyer when he performs any service in a cause. The position of a medical witness testifying as an expert, is much more like that of a lawyer than that of an ordinary witness testifying to facts. The purpose of this service is not to prove facts in the cause, but to aid the court or jury in arriving at a proper conclusion from facts otherwise proved. Is not this also the province and business of an attorney? And are not the services of each equally "particular?" All attempts to make a difference in the two cases are but losing sight of the substance and grasping at the shadow.

If physicians and surgeons can be compelled to render professional services by giving their opinions on the trial of criminal cases without compensation, then an eminent physician or surgeon may be compelled to go to any part of the state, at any and all times, to render such services without other compensation than such as he may recover as ordinary witness fees from the defendant in the prosecution, depending upon his conviction and ability to pay. This, under the general principles of law and the constitution of the state, he can not be compelled to do. If he knew facts pertinent to the case to be tried, he must attend and testify as any other witness. In respect to facts within his knowledge, his qualifications as a physician or surgeon are entirely unimportant. In respect to facts, as before stated, he stands upon an equality with all other witnesses; and the law, as well as his duty to the public, requires him to attend and testify for such fees as the legislature have provided. Not so, however, in respect to his professional opinions. In giving them he is per

forming a "particular" service, which can nɔt be demanded of him without compensation. The 13th section of the bill of rights, provides that in all criminal prosecutions, the accused shall have the right to have compulsory process for obtaining witnesses in his favor. This provision has no bearing upon the question involved. The term "witness," as thus used, was used in its ordinary sense as embracing those who know, or are supposed to know some fact or facts pertinent to the cause. But the physician or surgeon, when giving his professional opinion in a court, does not, as above stated, occupy the position of a witness testifying to facts. He performs the service under oath, to be sure, and this is the only circumstance from which he can be called a witness at all. So the judge upon the bench, the lawyer at the bar and the jury in the jury box, all perform their service under oath.

It is unnecessary to determine, in this case, whether all classes of experts can require payment before giving their opinions as such. It is sufficient to say that physicians and surgeons, whose opinions are valuable to them as a source of their income and livelihood, can not be compelled to perform service by giving such opinions in a court of justice without such payment. The commitment of appellant for contempt was erroneous and the judgment of the court below is reversed.

NOTE.-Biddle, C. J., and Niblack, J., dissent from the foregoing opinion, on grounds stated by Biddle, C. J., in the case of Dills v. The State.

DIGEST OF DECISIONS OF SUPREME COURT OF THE UNITED STATES.

October Term, 1877.

BANKRUPT ACT-MEANING OF "FRAUD."-The word "fraud," as used in the 33d section of the Bankrupt Act, means actual and not constructive fraud. N. purchased notes belonging to an estate from the executor at a discount and under circumstances that rendered him guilty of constructive fraud: Held, that the fraud was not such as to preclude him from setting up his discharge in bankruptcy against a suit to recover the value of the notes. Neal v. Scruggs.-In error to the Supreme Court of Appeals of Virginia. Opinion by Mr. Justice HARLAN. Judgment reversed. EVIDENCE-TESTIMONY OF EXPERTS.-In an action to recover damages for the loss of a barge which the defendants undertook to tow from Jersey City to New Haven, through Long Island Sound, a witness was asked: "With your experience, would it be safe or prudent for a tug-boat on Chesapeake bay or any other wide water to tug three boats abreast with a high wind?" The witness had testified that for many years he had been the captain of a tug-boat and was familiar with the making up of tows; that he was a pilot and had towed vessels on Long Island sound, although he was not familiar with the sound, but that he was familiar with the waters of the Chesapeake bay. Held proper. The witness was an expert and was called and testified as such. His knowledge and experience fairly entitled him to that position. It is permitted to ask questions of a witness of this class which cannot be put to ordinary witnesses. It is not an objection, as is assumed, that he was askea a question involving the point to be decided by the jury. As an expert he could properly aid the jury by such evidence, although it

would not be competent to be given by an ordinary witness. It is upon subjects on which the jury are not as well able to judge for themselves as is the witness that an expert as such is expected to testify. Evidence of this character is often given upon subjects requiring medical knowledge and science, but it is by no means limited to that class of cases. It is competent upon the question of the value of land, Clark v. Baird, 9 N. Y. 183; Bears v. Copely, 10 N. Y. 93; or as to the value of a particular breed of horses, Harris v. Panama R. R. Co., 4 Jones & Spencer, 373; or upon the value of the professional services of a lawyer, Jackson v. N. Y. C. R. R. Co., 2 Sup. Ct. Rep. 653; or on the question of negligence in moving a vessel, Moore v. Westcoult, 9 Bosw. 558; or on the necessity of a jettison, Price v. Hartshorn, 44 N. Y. 94. In Walsh v. Washington Marine Ins. Co., 32 N. Y. 427, it was decided that the testimony of experienced navigators on questions involving nautical skill was admissible. The witness in that case was asked to what cause the loss of the vessel was attributable, which was the point to be decided by the jury. The court sustained the admission of the evidence, using this language: "We entertain no doubt that those who are accustomed to the responsibility of command, and whose lives are spent on the ocean, are qualified as experts to prove the practical effect of cross-seas and heavy swells, shifting winds and sudden squalls." The books give a great variety of cases in which evidence of this character is admissible.-Eastern Transportation Line v. Hope. In error to the Circuit Court of the United States for the Eastern District of Pennsylvania. Opinion by Mr. Justice HUNT. Judgment affirmed.

SOME RECENT ENGLISH DECISIONS.

AGREEMENT FOR LEASE-STIPULATION FOR FORMAL CONTRACT STATUTE OF FRAUDS-SPECIFIC PERFORMANCE.- Winn v. Bull. High Court, Chy. Div.. 26, W. R. 230. An agreement for a lease signed by the parties, but expressed to be "subject to the preparation and approval of a formal contract," is not a final agreement, and is not binding within the statute of frauds, so that specific performance can be enforced thereof.

AGREEMENT FOR LEASE · OFFER AND ACCEPTANCE-STATUTE OF FRAUDS-LESSOR NOT NAMED.— Williams v. Jordan, High Court, Chy. Div., 26 W. R. 230. Defendants signed an offer in writing to take a lease of plaintiff's theatre, which was attested by his agent, but was addressed to him as "Sir," and did not name him as the lessor. The agent sent a written acceptance to the defendants, which also did not name the lessor. This acceptance was not signed by the lessees nor referred to in any other document. Held, that there was no written agreement within the statute of frauds so as to entitle the plaintiff to specific performance.

DAMAGE TO PIER BY ABANDONED SHIP-LIABILITY OF OWNER-ACT OF GOD.-River Wear Commr's v. Adamson. House of Lords, 26 W. R. 217. By the Harbors, Docks, and Piers Clauses Act, 1847, 10 Vict. c. 27, § 74, which was incorporated with the private act of the plaintiffs, "the owner of every vessel or float of timber shall be answerable to the undertakers for any damage done by such vessel or float of timber, or by any person employed about the same, to the harbor, dock, or pier, or the quays or wharves connected therewith; and the master or person having the charge of such vessel or float of timber through whose willful act or negligence any such damage is done, shall also be liable to make good the same; and the undertakers may detain any vessel or float of timber until sufficient security has been given for the damage done by the same; provi

ded always, that nothing herein contained shall extend to impose any liability for any such damage upon the owner of any vessel where such vessel shall, at the time when such damage is caused, be in charge of a duly licensed pilot, whom such owner or master is bound to employ or put his vessel in charge of." A ship belonging to the defendants, which had been wrecked in a storm and afterwards abandoned by the crew, was driven by force of the waves against the plaintiffs' pier, causing considerable damage thereto. Held, (Lord Gordon dissenting), that the defendants were not liable to the plaintiffs for damage done to the pier. Judg ment of the court of appeals, reported 24 W. R. 872, L. R. 1 Q. B. D. 546, affirmed. Dennis v. Tovell, 21 W R. 170, L. R. 8 Q. B. 10, distinguished.

A COURT WILL NOT GRANT A WRIT OF MANDAMUS WHERE THERE IS NO POWER OF ENFORCING OBEDIENCE TO IT.-In re Bristol & North Somerset R. R. High Court, Chy. Div. 26 W. R. 236. This was a rule for a mandamus to compel the Bristol and North Somerset Railway Company to execute an order made by the Board of Trade, under powers conferred on them by 26 and 27 Vict. ch. 92, § 7, on August 25, 1875, requiring the company to make a bridge over their line at Radstock instead of a level crossing. It appeared from the affidavits that the company had got into financial difficulties, and had leased their line in perpetuity to the Great Western Railway Company, under agreements confirmed by act of Parliament. The latter company work the line, and the Bristol and North Somerset Company are virtually extinct, and, therefore, they had no power, or funds, or means of raising funds, to comply with the order of the Board of Trade. COCKBURN, C. J.: I am of opinion that this rule should be discharged. It is clear that the compulsory powers of the company to take land have expired, and it is also clear that the company, to comply with the order of the Board of Trade, would have to take fresh land; and I do not see any way in which they could do so except by compulsion. It is idle to make the rule absolute, if in the end there is no power of compelling and enforcing obedience to it. The company in question is defunct, their powers of raising money gone, their capital spent, and they have parted with their railway to the Great Western Railway Company for the simple reason that they had no funds to go on with; under these circumstances, if a mandamus was issued, how could it be enforced? The court would not put the directors in jail for the purpose of enforcing an order which it is not in their power to execute. I regret that the machinery put in motion should fail. The Great Western Company have taken the management, and are in possession of the property of the Bristol and North Somerset; they take the benefits, but the legislature has not been vigilant enough to fix on them the liabilities. MELLOR, J.: I am of the opinion, and agree with the Lord Chief Justice, that it is idle to issue a writ of mandamus when it is impossible to enforce the performance of what is ordered.

NOTES OF RECENT DECISIONS.

CONTRIBUTORY NEGLIGENCE-PARTY ACTING UNDER THE DIRECTION OF COMPANY'S SERVANT NOT GUILTY OF.- - Alleghany Valley R. R. v. Findley. Supreme Court of Pennsylvania, 4 W. N. 438. Opinion PER CURIAM. F called with his team at defendant's depot for freight. The company's agent directed him to a position at the station within a few feet of the track, informing him that no train would pass for half an hour. A train came within five minutes, and one of his horses was injured. Held, that he was not guilty of contributory negligence.

TROVER-WHEN MAINTAINABLE BETWEEN JOINT

OWNERS-DESTRUCTION OF PROPERTY BY ONE JOINT OWNER. Given v. Kelly. Supreme Court of Pennsylvania, 4 W. N. 433. Opinion by MERCUR, J. 1. The rule that one joint owner of a chattel can not maintain trover against his co-owner for the detention of possession or sale of the property, is restricted to cases in which the property remains in specie. If the property be destroyed, or be so dismembered as to be rendered unfit for the purpose for which it was designed, trover by a joint owner will lie. 2. The defendant, being a joint owner with plaintiffs of the machinery and "rig" of an oil well, and being in sole actual possession thereof, abandoned the well, dismantled the engine and machinery, sold the boiler, and removed the tubing and remainder of the rig out of the county: Held, that such action was a virtual destruction of the property, by reason whereof his co-owners could maintain trover against him.

RAILROAD CORPORATIONS - EMINENT DOMAINTRESPASS-AUTHORITY OF AGENT WHEN A QUESTION FOR A JURY.-Bean v. Howe. Supreme Court of Pennsylvania, 5 W. N. 5. Opinion by WoODWARD, J. A railroad company having occupied a portion of a public highway, and having taken away a bridge, neglected to replace the bridge. The road commissioners undertook the work, and let the contract to a contractor who entered upon the railroad company's ground. There was evidence of assent to the location by the railroad company's superintendent, who, however, denied both his assent and authority to assent. When the bridge was nearly completed, employees of the railroad company drove the contractor from his work and tore up the bridge. In an act of trespass by the contractor, the court instructed the jury to find a verdict for defendants, on the ground that the plaintiff had no authority to enter on the company's premises. Held (reversing the judgment of the court below) that the question of the scope of the superintendent's authority, and of his agreement, was for the jury. Held further, that if the superintendent's authority and agreement had been proved, the plaintiff would have been entitled to recover.

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HUSBAND AND WIFE.- While a husband has not recognized his wife as his agent, or ratified any act of hers in any similar transaction, he will not be liable for goods purchased by her without his authority for the purpose of furnishing her father's house, and the fact that on a previous occasion she had purchased goods at the same store for the same purpose, which were charged to the husband, and for which he paid, will not make him liable, if he was himself present with his wife at the time of the former purchase. Reversed and judgment for defendant. Opinion by BAKEWELL, J.-Bray v. Beard.

FRAUDULENT SALE- REPLEVIN-CLAIMANT NEED NOT BE ABSOLUTE OWNER.-1. A fraudulent sale is voidable; but the right to nullify it resides solely with the party defrauded. A party to an executed contract fraudulent as to third parties only can not set it aside. 2. The claimant in replevin need not be absolute owner. If he have a special property in the goods, or an interest in them of a temporary and limited nature it is enough, if he has had actual possession and has been deprived of the possession by defendant. Afirmed. Opinion by BAKEWELL, J.-Hazard v. Hall.

ATTACHMENT-PLEA-ISSUE.-1. In attachment for rent before a justice, where defendant in the plea in abatement denies that he is moving his property, it will be intended that he denies that he is so moving it as to furnish ground for attachment, and the plea in abatement is not bad, because it does not expressly traverse the allegation that the landlord is in danger of losing his rent. 2. The question in an attachment for rent is, not whether the tenant is moving his property, but whether he is moving it so as not to leave enough to secure the landlord. The tenant is not liable in attachment simply because he is selling part of his crop. Affirmed. Opinion by BAKEWELL, J. Meier v. Thomas.

BANK-DEPOSITOR-AGENCY.-1. The relations between a bank and its current depositor are those of debtor and creditor. When payment upon a discount to a depositor, creates an indebtedness on his part, all the funds which the bank has to his credit may be applied on such indebtedness until it is full paid. 2. L deposited at the bank of which he was a customer a draft for discount, and received credit for the proceeds. At the maturity of the draft it was dishonored. and the bank charged L with the amount of the draft, and transmitted the same to him with notice of its action. At the time of the dishonor of the bill, L had on deposit at the bank more than enough to meet the bill. The bill was at once returned to the bank by L, with a request to the bank to sue upon the draft in its own name, whereupon the bank credited L by the bill, and at once instituted suit against the other parties to the paper. Held, that the bank received the draft after maturity, or else was the agent of L, and, in either case, the acceptor was entitled, in a suit by the bauk against him on the note, to an inquiry into the consideration as between themselves and the payee. Reversed and remanded. Opinion by LEWIS, P. J.Union Bank of Quincy v. Tutt.

ABSTRACT OF DECISIONS OF SUPREME COURT OF INDIANA.

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voidable. Contracts of the second class are valid, and may be enforced against the separate property in relation to which they are made and performed. Contracts of the third class are valid, and payment of them may be enforced out of the income of their separate estates, and perhaps, if necessary, out of the estates themselves. 20 Ind., 54. Where the contract in question was a note given for a piano, and was in the following words:

$200.

FOWLER, IND., December 10, 1874. One year after date, I promise to pay to the order of E. D. Richards, out of my own separate property, two hundred dollars. MARY O'BRIEN."

Held: The intention of the maker to charge the debt upon her separate estate was sufficiently manifested, and the court might properly order it to be paid out of the income thereof. Opinion by PERKINS, J.-Richards v. O'Brien.

RESULTING TRUSTS-HUSBAND AND WIFE.-A recovered a judgment against B, who afterwards purchased a piece of real estate, with the understanding that the conveyance should be made to his wife. No money was paid at the time of purchase, but the purchase money was secured by mortgage. By mistake the deed was made to B instead of to his wife. The wife afterwards paid one installment of the purchase money. A then levied on the land to satisfy his judgment. Held, that no trust in the land was created in writing in favor of the wife and none could arise by implication of law before the payment of the purchase money. A's judgment being in existence before the land was purchased by B, and no money having been paid by the wife until after the land was purchased, no trust could arise in her favor which could disturb the lien of A's judgment. Opinion by BIDDLE, C, J.Burket v. Burket.

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Associate Justices.

WILLIAM C. ENDICOTT,

66

OTIS P. LORD,

66

SAMUEL E. PERKINS,

MARRIED WOMEN-ENFORCEMENT OF LIEN ON SEPARATE PROPERTY.-A complaint to enforce a lien against the separate real estate of a married woman, for an indebtedness contracted by her for its improvement, must show that she intended and agreed to charge the indebtedness upon her separate real estate; and the fact that she contracted for such improvements, and caused them to be placed upon her separate real estate, will not raise the implication that she intended to charge her estate with the indebtedness. Her coverture disables her from making an ordinary contract for improving her separate real estate, and unless by such contract she agreed that her separate real estate shall be bound to answer for the indebtedness, the agreement can not be enforced. 53 Ind. 54. Opinion by BIDDLE, C. J.-Dame et al. v. Canomff.

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AUGUSTUS L. SOULE,

NEGLIGENCE-ESTRAYS.-1. If, in an action of tort to recover the value of a horse killed upon the defendant's railway, it appears that the horse was at the time of the accident, an estray trespassing on the railroad, the defendants are not liable unless guilty of reckless carelessness or wanton misconduct. Fitchburg Ins. Co. v. Davis, 121 Mass. 118. 2. But if the plaintiff was guilty of no negligence in allowing the horse to escape, the defendants will be liable, if the injury was caused by their neglect to maintain proper gates; and whether the plaintiff was negligent in suffering the escape is a question of fact for the jury. Opinion by NORTON, J.-Towner v. Nashville and Lowell R. R. Co.

LEGACIES AND DEVISES-GENERAL FOLLOWED BY PARTICULAR DESCRIPTION.-1. The 'bequest of the interest of the testator, which he holds as mortgagee, in real estate, is a bequest of personal property, and passes no title to the mortgaged land to the legatee. 2. Where the testator's will gives "all the real estate he may die possessed of to A, * * * which property is situate on the north side of N street in said Lowell;" if at the time of his death he was seized and possessed of two lots of land, one on the north and the other on the south side of said street, A takes both lots, unless an intention to the contrary appears in the

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