istrators, and assigns, to sell the mortgaged premises, does not vest
upon the death of such person in his heirs, executors, or administrators
under a statute declaring that in all mortgages there may be intro-
duced a clause authorizing the mortgagee, or any person named therein,
to sell the mortgaged premises. Barrick v. Horner, 283.

& A POWER OF SALE IN A MORTGAGE CONFERRED ON A THIRD PERSON
having no interest in the estate is a collateral power, and can be exe-
cuted only by the person named. Upon his death, though he has in
the mean time become the assignee of the mortgage, the power of sale
terminates. Barrick v. Horner, 283.

4 MORTGAGOR, SALE BY TO MORTGAGEE-FRAUD-ONUS PROBANDI.-If a
mortgagee takes from his mortgagor a conveyance of the mortgaged
premises, without paying any thing more for the land than the satisfac-
tion of the old debt secured by the mortgage, the burden is on the
mortgagee, when the transaction is attacked for fraud, to show that it
was fair, and that the conveyance was of the equity of redemption,
voluntarily and intelligently given upon a contract of sale entirely dis-
connected from the mortgage contract. Especially is this so where the
mortgagor is a very old, feeble, and illiterate lady. Hall v. Hall, 696.
6. IF A SALE IS MADE OF PIECES OF LAND SUBJECT to a mortgage they
are liable for the encumbrance in an order inverse to that of their
alienation. Turner v. Flenniken, 624.

6. PAYMENTS MADE TO A MORTGAGEE AFTER HE HAS ASSIGNED THE MORT-
GAGE are at the peril of the mortgagor, and he is not entitled to be
credited therewith, if the mortgagee did not, at the time, produce the
original negotiable notes which the mortgage was given to secure,
though such notes were in fact in his possession in another city, if he
was not authorized to receive such payment, and it was not induced by
the fact of such possession. Murphy v. Barnard, 340.
7. PAYMENT MADE TO AN ATTORNEY.-If payment is made on a mort-
gage debt to the original mortgagee, after he has assigned the mort
gage, the mortgagor is not entitled to be credited with the amount of
such payment on the ground that it was made to a person who was
the attorney at law of the assignee, expressly authorized to collect in-
terest, if, in making payments, the mortgagor did not know of the
agency of the mortgagee, and acted upon the assumption that he was still
the owner of the mortgage, and not on the belief that such original
mortgagee was the agent of the assignee, and as such entitled to receive
the payments of the principal debt. Murphy v. Barnard, 340.

8. A MORTGAGOR IS NOT CHARGEABLE WITH CONSTRUCTIVE NOTICE OF THE
RECORD OF AN ASSIGNMENT of the mortgage. Murphy v. Barnard, 340.
9. NEGLIGENCE, WHAT IS NOT.-The assignee of a mortgage who places his
assignment on record is not guilty of negligence in leaving the note and
mortgage in possession of the original mortgagee, who is an attorney
at law, doing a real estate and loan business, for the purpose of enabling
him to collect the interest, and, therefore, one who subsequently pur
chases such note and mortgage from such mortgagee cannot hold the
same, as against the original assignee, on the ground of the negligence
of the latter. Murphy v. Barnard, 340.
10. FRAUD, ASSIGNMENT VOID BECAUSE OF.-IF AN ASSIGNEE OF A MORTGAGE
is procured to execute a reassignment thereof by a false and fraudulent
representation that it is a paper to enable the original mortgagee to
collect the interest, such assignment is void, and one subsequently pur

chasing from the original assignee, with constructive notice of the assignment, and without any knowledge that the assignment was prooured, cannot take any benefit therefrom. Murphy v. Barnard, 340. 11. CONFLICT BETWEEN ASSIGNEES.-If a mortgage is taken to secure the payment of negotiable promissory notes, and is then assigned and the assignment placed on record, all persons are chargeable with constructive notice of such assignment. This rule remains applicable, though the notes were left in the possession of the original mortgagee, and he sold and indorsed them to a purchaser in good faith and with out actual notice of the prior assignment. Nor can the title of the second assignee be aided by the fact that the first assignee had by fraud been procured to assign to one who had reassigned to the original mortgagee, if such second assignee had no knowledge of such reassignment and therefore could not have relied thereon. Murphy v. Barnard, 340. IF A MORTGAGEE RELEASES PART OF THE MORTGAGED PREMISES AFTER OTHER PARTS HAVE BEEN SOLD, having notice of the prior sale, he thereby releases the property first sold, if the property actually released by him is of sufficient value to pay the mortgage debt. Turner v. Flenniken, 624.

13. MORTGAGEE IN POSSESSION, RIGHTS AND LIABILITIES OF-Waste-Tres PASS.-If one goes into possession of land under a contract of purchase conditioned that the title to the crops shall remain in the vendor until the terms of the contract are complied with, and the vendor sells the erops in an unauthorized manner at public auction, and the value of the crops thus converted is more than sufficient to pay what was due upon the contract at the time of their conversion, and the premises are ample security for the remainder of the debt, and the vendor enters, although he may have the legal right to do so at the time, he is, in legal effect, a mortgagee in possession, and subject to the same rules as to committing waste. He has no right to cut off and manufacture the growing tim ber into lumber. If he does so, and acts manifestly in willful violation of the vendee's rights, he is a trespasser, and should be charged, on foreclosure proceedings, not simply with an agreed stumpage, but with what he received for the lumber at its fair market value, without any deduction for the cost of cutting and removing the timber. Whiting v. Adams, 875.

14. MORTGAGE FORECLOSURE, PARTIES DEFENDANT.—A complaint in a suit to foreclose a mortgage in which the mortgagors are not made parties, and which, as against the only person named as a defendant, alleges only that he has, or claims to have, some interest in or lien upon the mortgaged premises, is not subject to demurrer for a defect of parties defendant. It does not affirmatively appear therefrom that the owner of the equity of redemption is not a party defendant. Carpenter v. In. galls, 753.

16. MORTGAGE FORECLOSURE.-THE ONLY Party DefenDANT ESSENTIAL to a foreclosure of a mortgage is the owner of the equity of redemption. Therefore, the original mortgagor need not be made a party where no personal judgment is sought against him, and he is no longer the owner of the equity of redemption. Carpenter v. Ingalls, 753.

See ASSISTANCE, 3; CHATTEL MORTGAGES; CORPORATIONS, 21, 23; Debtor and Creditor, 1; DEVISE; EXECUTORS AND ADMINISTRATORS, 4, 5; INFANTS; INSURANCE, 10; JUDGMENTS, 6, 13; NEGOTIABLE INSTRUMENTS, 5; OFFICERS, 5; PAYMENT, 2.

MUNICIPAL CORPORATIONS.

1. RATIFICATION OF UNAUTHORIZED ACTS OF AGENTS.-The council of municipality may adopt an unauthorized act done for the benefit of the city by one of its officers and assume a debt so contracted. The ques tion of adoption is one exclusively for the city, and with which the citi zen has nothing to do. McCormick's Appeal, 671.

2 MUNICIPAL CORPORATIONS MAY RATIFY UNAUTHORIZED AOTS and contracts of its agents or officers which are within the scope of the cor porate powers. McCormick's Appeal, 671.

& CONSTITUTIONAL LAW-FREEDOM OF SPEECH.-A MUNICIPAL ORDINANCE PROHIBITING ANY PERSON FROM MAKING ANY PUBLIC ADDRESS in or upon any of the public grounds of the municipality, except in accord. ance with a permit from the mayor, is not unconstitutional or invalid as abridging freedom of speech. Commonwealth v. Davis, 389.

4. A MUNICIPAL CORPORATION MAY BY ORDINANCE Declare that no PerSON SHALL CARRY or Cause TO BE CARRIED IN ANY VEHICLE in any street a load the weight of which exceeds three tons, unless such load consists of an article which cannot be divided, if a statute of the state provides that the common council of such city may make such rules and regulations for the passage of carriages, wagons, carts, trucks, and other vehicles in and through the public streets as they may deem necessary for the public safety and convenience, nor can the enforcement of such ordinance be defeated by evidence that the wagon in which was a load in excess of that permitted by the ordinance was carrying it from a point on one side of the city to a point on the other side, and that the load was not an excessive one for the horses em ployed in drawing it. Commonwealth v. Mulhall, 387. INDEBTEDNESS OF, WHAT IS WITHIN THE MEANING OF CONSTITUTIONAL PROHIBITIONS.-If a municipality enters into a contract for the construction and maintenance by a private person of a system of water. works and an electric-light plant, and agrees to pay for a specified number of years certain sums for the use of hydrants and lights, the amounts which will become due from the city under the contract must be regarded as indebtedness and the contract as forbidden and void, if the sums to fall due under it added to the pre-existing indebtedness of the municipality will exceed the indebtedness which it is permitted to contract by the constitution. Beard v. Hopkinsville, 222. STREETS-ELECTRIC RAILWAYS.-A MUNICIPAL CORPORATION EXERCISING ▲ Power DELEGATED to it by the legislature may authorize the construction and operation in the public streets of a railway whose cars are propelled by electricity. Louisville Bagging Mfg. Co. v. Central eto Ry. Co., 203.

7. INJUNCTION AGAINST NUISANCE MAINTAINED BY.-Although a municipal corporation is by statute invested with plenary powers over its streets, sewers, drainage, and sanitation, it may be restrained by injunction from maintaining a nuisance dangerous to life and health, consisting of manholes emitting large quantities of poisonous gases from a sewer in a public street adjoining private residences. And this, although the nuis. ance does not result from any defect inherent in the sewer system, but is due to defective execution in failing to adapt the system properly to the steep grade of the street in which the manholes are located. Allanta v. Warnock, 17.

& PUBLIC STREETS-PRESUMPTION OF OWNERSHIP.-The owner of land abutting on a public street is presumed to own the soil and freehold to the center of the street, encumbered only by the easement and right of passage in the public. Edmison v. Lowry, 774,

UNAUTHORIZED CHANGE OF GRADE-RATIFICATION.- Although the change in the grade of a street is made by municipal officers without authority of ordinance, the city council may subsequently adopt and ratify such unauthorized act. McCormick's Appeal, 671.

See CONSTITUTIONAL LAW, 1; INJUNCTIONS, 2

MURDER.

See HOMICIDE.

NAMES.

See TRADEMARKS, 1.

NECESSARIES.

See HUSBAND AND WIFE, 2, 3.

NEGLIGENCE.

1. "SLIGHT CARE AND DILIGENCE" is "that care which every man of common sense, howsoever inattentive he may be, takes of his own property." Merchant's Nat. Bank v. Guilmartin, 182.

2. EVIDENCE-PRECAUTIONS TAKEN SOON AFTER ACCIDENT.-In an action against a railroad company for damages for an injury caused by its negligence at a crossing, evidence that very soon after the accident the company erected gates at such crossing is a fact proper for the consideration of the jury. Lederman v. Pennsylvania R. R. Co., 644.

1. WHEN QUESTION FOR JURY.-In an action against a railway company to recover damages for the death of a young child at a crossing the evidence showing that the accident occurred in a populous district, at the inter section of the railway with three streets, that there was an absence of safety gates, that the crossing was guarded only by an elderly watchman, and that the cars were going at a rate of speed, variously esti mated by witnesses to have been from four to ten miles an hour at the time of the accident, the question of negligence, both on the part of the railway company and on the part of the mother of the child in permitting it to go upon the street unattended, is for the jury to determine. Lederman v. Pennsylvania R. R. Co., 644.

4. PARENTS' RIGHT OF ACTION AGAINST RAILWAY COMPANY FOR DEATH OF MINOR CHILD OCCASIONED BY NEGLIGENCE OF ITS CUSTODIAN-IMPUTABLE NEGLIGENCE.-By express statute in Georgia the father is vested with the custody of his minor child, and its mother is not accountable for the conduct of its custodian chosen by the father. It is the father's duty to guard and shield his child from injury, and, if suit is brought by its parent or custodian for an injury to it, negligence of the plaintiff may defeat a recovery. Hence, if the father puts his minor child of tender years in another's custody, the latter is the representative and agent of the father; and if, by gross negligence of the custodian in taking it upon a high and dangerous trestle, it is run over by a passenger train and killed, such negligence is imputable to the father, who can. not, therefore, recover for the death. Such custodian is not, however, the

representative or agent of the mother, who is specially authorized by statute, in such a case, to sue for damages for her son's death; and she is not, in such a suit, chargeable with the negligence of the father merely because of the conjugal relation existing between them. His negligence is not imputable to her, except where she has expressly constituted him her agent for the purpose in hand, Atlanta etc. Ry. Co. v. Gravitt, 145.

MINOR CHILD'S RIGHT OF ACTION FOR INJURY TO ITSELF THOUGH ITS PARENT OR CUSTODIAN WAS NEGLIGENT.-Negligence of a parent or custodian of a child is no justification for others to injure it; hence, if suit is brought by or in behalf of an infant in its own right for an injury sustained through the act of another, contributory negligence on the part of its parents, or others standing in loco parentis, will not operate as a bar to recovery, or present any defense to the suit. Atlanta etc. Ry. Co. v. Gravitt, 145. MEASURE OF DAMAGES.-If a tort is committed throngh mistake, ignorance, or mere negligence, the damages are limited to the actual injury received; but, if there is an element of fraud, malice, insult, or other cause of aggravation, showing such a degree of negligence as indicates a reckless indifference to consequences in the act causing the injury, punitive damages are allowable. Hansley v. Jamesville etc. R. R. Co. 474.

7. CONTRIBUTORY-WHEN QUESTION FOR JURY.-How a prudent man would act in the face of concurrent and distracting dangers must, in the nature of things, be a question of fact to be passed upon by the jury, and not a question of law upon which the court may order a nonsuit or direct a verdict. If the evidence is competent to prove that, while in the act of crossing a public highway, the party injured encountered the apparent necessity of avoiding danger from one or more sources, other than the electric street-cars by which he is injured, the question whether, under all the circumstances, he acted as a prudent person should act, must be submitted to the jury to determine if he is guilty of contributory negligence. Connelly v. Trenton etc. Ry. Co.,

424.

See BANKS, 10, 15, 16; CARRIERS, 2, 4, 8, 10; EXECUTORS AND ADMINISTRAtors, 6, 7; MasTER AND SERVANT, 12, 13, 16, 24-26; Mortgages, 9; REAL PROPERTY, 2; Telegraph COMPANIES; TRIAL, 3.

NEGOTIABLE INSTRUMENTS.

1. WAIVER OF FORMAL PRESENTMENT. — If, on demand for payment of a note, an exhibition of the instrument is not asked for, and the party on whom the demand is made declines to pay on other grounds, a formal, actual presentment of the instrument is waived. Waring v. Betts, 890.

PRESENTMENt and Demand-Although a note is made payable at a bank, presentment and demand for payment at the bank within bank. ing hours is excused if the bank has ceased to exist, and in such case presentment to and demand on the indorser of such note and manager of the defunct bank made at his residence at 5:30 P. M. is sufficient to

charge him. Waring v. Betts, 890.

3. BONA FIDE HOLDERS OF NEGOTIABLE NOTES taken for value before ma turity can recover thereon, although they take them under circum.