28 L. R. A. 400, GIBSON v. SHEEHAN, App. D. C. 391.

Liability of surety company indemnifying one of several sureties. Criticized in American Surety Co. v. Boyle, 65 Ohio St. 494, 63 N. E. 73, holding surety company indemnifying one surety on replevin bond, in consideration of premium paid by principal obligor, not liable to cosureties in excess of amount of such premium.

28 L. R. A. 402, FLENNIKEN v. MARSHALL, 43 S. C. 80, 20 S. E. 788. Construction of term "creditor."

Cited in Stewart v. Waterboro & W. R. Co. 64 S. C. 96, 41 S. E. 827, holding that term "creditor," in statute providing for consolidation of railroad companies, includes persons entitled to damages for torts.

28 L. R. A. 405, CHAPMAN v. ROCKFORD INS. CO. 89 Wis. 572, 62 N. W. 422. Appraisal as condition precedent to action; validity of provision.

Approved in Zalesky v. Home Ins. Co 102 Iowa, 620, 71 N. W. 566, holding compliance with provisions in policy for appraisement, condition precedent to suit in absence of statute to contrary; Connecticut F. Ins. Co. v. Cohen, 97 Md. 304, 99 Am. St. Rep. 445, 55 Atl. 675, holding insured not prevented from maintaining suit upon policy by failure of appraisement, which occurred without his fault.

Cited in footnotes to Hartford F. Ins. Co. v. Hon, 60 L. R. A. 436, which holds void, agreement to settle all differences by arbitration, without suit; Mittenthal v. Mascagni, 60 L. R. A. 812, which sustains provision in contract for entertainment tour, that suits shall be brought in country of domicil.

Waiver of appraisal.

Approved in Hickerson v. German-American Ins. Co. 96 Tenn. 197, 32 L. R. A. 174, 33 S. W. 1041, holding existence of real difference arising out of honest effort between insurer and insured necessary to make provision for arbitration operative; Read v. State Ins. Co. 103 Iowa, 316, 64 Am. St. Rep. 180, 72 N. W. 665, holding unreasonable delay of appraisers to select an umpire and proceed with appraisement, waiver of provision for same; Hickerson v. German-American Ins. Co. 96 Tenn. 206, 32 L. R. A. 176, footnote p. 172, 33 S. W. 1041, holding unreasonable demand of appraiser for insurer that umpire be chosen who does not live in vicinity, waiver of arbitration; Northern Assur. Co. v. Samuels, 11 Tex. Civ. App. 422, 33 S. W. 239, holding failure of insurer to appear, by agent or otherwise, at time and place fixed for appraisement of fire loss, waiver of right of appraisement.

Cited in footnote to Grand Rapids F. Ins. Co. v. Finn, 50 L. R. A. 555, which holds appraisal of loss not required by policy, unless demand made by insurer.

28 L. R. A. 409, STATE ex rel. WHITE v. NEFF, 52 Ohio St. 375, 40 N. E. 720.

28 L. R. A. 414, Re COMASSI, 107 Cal. 1, 40 Pac. 15. Revocation of will or abatement of legacy.

Cited in Hibberd v. Trask, 160 Ind. 504, 67 N. E. 179, holding that divorce and remarriage does not revoke will made by married woman before divorce. Cited in footnotes to Flannigan v. Howard, 59 L. R. A. 664, which holds devises and legacies in will ratably abated by adoption of child after its execution; Glascott v. Bragg, 56 L. R. A. 258, which holds will in favor of third person re

voked by marriage and adoption of child; Re Kelly, 56 L. R. A. 754, which holds woman's will not revoked by subsequent marriage; Miles's Appeal, 36 L. R. A. 176, which holds erasure of specific legacy from will not sufficient recovation of such legacy.

Distinguished in Hilpire v. Claude, 109 Iowa, 167, 46 L. R. A. 174, 77 Am. St. Rep. 524, 80 N. W. 332, holding will revoked by subsequent adoption of child.

28 L. R. A. 416, HORNBROOK v. ELM GROVE, 40 W. Va. 543, 21 S. E. 851. Special acts repealing or amending municipal charters.

Approved in Roby v. Sheppard, 42 W. Va. 288, 26 S. E. 278, holding act amending charter of town containing population of more than 2,000, which takes from town of less than 2,000 some of its territory, not special act within prohibition against amending charters of latter kind of towns; South Morgantown v. Morgantown, 49 W. Va. 730, 40 S. E. 15, sustaining power of legislature to pass special act uniting territory of several municipalities into one, thus repealing charters of original ones.

Remedies for illegal annexation to municipality.

Cited in footnote to State ex rel. Childs v. Crow Wing County, 35 L. R. A. 745, which authorizes quo warranto to oust county from adjoining territory illegally annexed.

Collateral attack on corporate existence.

Cited in footnote to Kuhn v. Port Townsend, 29 L. R. A. 445, which holds mere irregularities no ground for attack on annexation of territory to city.

28 L. R. A. 421, NUNNELLY v. SOUTHERN IRON CO. 94 Tenn. 397, 29 S. W. 361.

Effect and validity of parol license.

Approved in Long v. Mayberry, 96 Tenn. 382, 36 S. W. 1040, holding that right in private way cannot be created by parol license.

Cited in note (49 L. R. A. 503, 522) on revocability of license to maintain burden on land after licensee has incurred expense in creating burden.

Right to pollute waters.

Cited in footnote to Weston Paper Co. v. Pope, 56 L. R. A. 899, which sustains liability for pollution of stream by discharge from strawboard works, though business skilfully conducted.

Liability of servant, agent, and corporate officer or stockholder.

Approved in Cameron v. Kenyon-Connell Commercial Co. 22 Mont. 320, 44 L. R. A. 511, footnote p. 508, 74 Am. St. Rep. 602, 56 Pac. 508, holding directors' liability in storage of explosives dependent on due care in managing business. Cited in Davenport v. Newton, 71 Vt. 22, 42 Atl. 1087, holding director personally liable for acts of corporation, only when he does something making them his acts also.

Cited in footnote to White v. Wilson, 37 L. R. A. 197, which denies right of member of club, sharing in winnings of gambling, to recover on note for money loaned for use in game.

Cited in notes (28 L. R. A. 433) on liability of agent or servant to third persons for his own negligence or nonfeasance; (50 L. R. A. 645) on liability of

servants or agent for conversion, trespass, or other positive act of wrongdoing against third parties under orders of employer; (28 L. R. A. 421) on personal liability of officers of corporation for its torts or negligence.

28 L. R. A. 430, SEAMANS v. TEMPLE CO. 105 Mich. 400, 55 Am. St. Rep. 457, 63 N. W. 408.

Foreign corporations.

Approved in Buell v. Breese Mill & Grain Co. 65 Ill. App. 275, sustaining act requiring foreign insurance company to appoint attorney, etc., before doing business in state; Rough v. Breitung, 117 Mich. 56, 75 N. W. 147, holding action on contract not maintainable by foreign corporation doing business in state, without paying franchise fee required by statute; Commonwealth Mut. F. Ins. Co. v. Hayden Bros. 60 Neb. 638, 83 Am. St. Rep. 545, 83 N. W. 922, denying right of foreign insurance companies not complying with law as to doing business, to claim enforcement of contracts in courts of state; People's Mut. Ben. Soc. v. Lester, 105 Mich. 717, 63 N. W. 977, holding action to recover money collected by agent not maintainable by foreign mutual benefit society forbidden under penalty to do business in state; Cowan v. London Assur. Corp. 73 Miss. 328, 55 Am. St. Rep. 535, 19 So. 298, holding action for premiums not maintainable by corporation which has not complied with statutory requirements; Seamans v. Christian Bros. Mill Co. 66 Minn. 208, 68 N. W. 1065, denying right of foreign insurance company, whether incorporated or not, to recover premiums on contracts to insure property in state, entered into either within or without state, unless statutory requirements complied with; Indiana Millers' Mut. F. Ins. Co. v. People, 65 Ill. App. 358, holding officers of foreign insurance company not authorized to do business in state chargeable with knowledge of participation in forbidden act, in receiving application by mail from person in state for insurance on property therein and sending policy to him.

Cited in National Mut. Bldg. & L. Asso. v. Burch, 124 Mich. 67, 83 Am. St. Rep. 311, 82 N. W. 837, holding that right of foreign loan association to enforce contract without filing articles of incorporation, etc., cannot be first questioned on appeal.

Cited in footnote to People v. Gay, 30 L. R. A. 464, which sustains act prohibiting solicitation of insurance within state for nonresident without procuring certificate of authority.

Distinguished in Holder v. Aultman, M. & Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 269, holding valid, contract made elsewhere by foreign corporation which has not filed articles of incorporation, etc., although performable in state; People v. Hawkins, 106 Mich. 482, 64 N. W. 736, holding that agent de facto of foreign corporation may be convicted of embezzling its funds, although It has not complied with statute as to doing business in state; Root v. Sweeney, 12 S. D. 52, 80 N. W. 149, holding that foreign corporation has vested right to maintain action on contract entered into while courts held such action maintainable, notwithstanding failure to comply with statutory provisions as to tiling copies of charters, etc.

State comity; conflict of laws.

Cited in Palmer v. Palmer, 26 Utah, 40, 61 L. R. A. 645, 99 Am. St. Rep. 820, 72 Pac. 3, holding contract for final separation of husband and wife not enforceable by courts of state under whose laws it is invalid.

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Cited in footnotes to Pope v. Hanke, 28 L. R. A. 568, which holds that comity does not require execution of law against public policy; Union Cent. L. Ins. Co. v. Pollard, 36 L. R. A. 271, as to law governing effect of answers in application for policy and their use in evidence; Swing v. Munson, 58 L. R. A. 223, which holds insurance contract, valid where made, not enforceable in state where property located, whose laws directly violated.

Cited in note (63 L. R. A. 852) on conflict of laws as to contracts of insurance. — Stockholders' liability.

Approved in Finney v. Guy, 106 Wis. 277, 49 L. R. A. 495, 82 N. W. 595, holding action to enforce liability of stockholders not maintainable in other state, where statute provides single method of enforcement by one suit in state courts against all stockholders.

Cited in note (34 L. R. A. 741) on right to enforce stockholder's liability outside of state of incorporation.

28 L. R. A. 433, MAYER v. THOMPSON-HUTCHISON BLDG. CO. 104 Ala. 611, 53 Am. St. Rep. 88, 16 So. 620.

Liability of servant or agent for his torts.

Approved in Stiewel v. Borman, 63 Ark. 38, 37 S. W. 404, holding agent having complete management of principal's business liable for failure to perform duty to protect third persons against injuries; Luling v. Sheppard, 112 Ala. 593, 21 So. 352, denying right to defend action of forcible entry and detainer on ground that defendant was acting as agent; Lough v. John Davis & Co. 30 Wash. 213, 59 L. R. A. 805, footnote p. 802, 94 Am. St. Rep. 848, 70 Pac. 491, holding agent liable for injury to tenants from failure to make necessary repairs.

Cited in footnotes to Lawton v. Chilton, 45 L. R. A. 616, which holds subcontractor for transporting mails liable in tort for negligent injury to postal employee; Winston v. Illinois C. R. Co. 55 L. R. A. 603, which authorizes joint or several action for death from negligence of agent of railroad company.

Cited in notes (28 L. R. A. 434) on liability of agent or servant to third persons for his negligence or nonfeasance; (27 L. R. A. 185) on master's civil responsibility for wrongful or negligent act of servant or agent towards one who has no claim on master by reason of contract, incipient or perfected; (28 L. R. A. 421, 427) on personal liability of officers of corporation for its torts or negligence. Distinguished in Kuhnert v. Angell, 10 N. D. 61, 88 Am. St. Rep. 675, 84 N. W. 579, denying liability of agent for nonresident to lease and collect rents, for injuries by barbed wire fence across beaten trail, negligently built by subagent not negligently selected by agent.

Liability of bailor for acts of bailee or his servants.

Cited in footnote to New Jersey Electric R. Co. v. New York, L. E. & W. R. Co. 43 L. R. A. 849, which holds bailor not responsible to third person for negligence of bailee's servant in respect to bailment.

Personal liability of corporate officer.

Approved in Lawlor v. French, 14 Misc. 500, 35 N. Y. Supp. 1077, holding president and manager of theater company liable for injury to employee by kick from vicious horse used in play; Cameron v. Kenyon-Connell Commercial Co. 22 Mont. 320, 44 L. R. A. 511, footnote p. 508, 74 Am. St. Rep. 602, 56 Pac. 508. holding it duty of directors of corporation dealing in explosives to exercise such

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[28 L. R. A.

reasonable supervision as will result in observance of utmost care by subordinates handling explosives.

Liability of master for servant's torts.

Cited in footnotes to Nelson Business College Co. v. Lloyd, 46 L. R. A. 314. which holds employer liable for servant's wilful or malicious acts in course of employment; Baltimore Consol. R. Co. v. Pierce, 45 L. R. A. 527, which holds master not relieved because injury by servant was wilful and malicious; Alsever v. Minneapolis & St. L. R. Co. 56 L. R. A. 748, which sustains liability for injuries caused by engineer operating blow-off cock to frighten children; Galveston. H. & S. A. R. Co. v. Zantzinger, 47 L. R. A. 282, which sustains liability for engineer's ejection of trespasser from footboard of engine; Southern R. Co. v. James, 63 L. R. A. 257, which holds master liable for injury by night watchman shooting trespasser while running away after being arrested by him; Dorsey v. Kansas City, P. & G. R. Co. 52 L. R. A. 92, which holds carrier liable for death of trespasser falling under wheels in trying to escape from rocks thrown by brakeman; Enright v. Pittsburgh Junction R. Co. 53 L. R. A. 330, which denies right to eject or frighten ten-year-old boy from rapidly moving train; Palmisano v. New Orleans City R. Co. 58 L. R. A. 405, which denies master's liability for injury to boy running blindly against moving car after release by employee, who had caught and lectured him; Guille v. Campbell, 55 L. R. A. 111, which denies master's liability for injury to bystander by slipping of hook from servant's hand while pretending to throw at boys playing on cotton bales; Lynch v. Florida C. & P. R. Co. 54 L. R. A. 810, which denies company's liability for assault by station agent as result of personal quarrel; Lamb v. Littman, 53 L. R. A. 852, which holds employee liable for assault by cruel overseer on minor employee.

Admissibility of evidence of custom.

Cited in Pennsylvania R. Co. v. Naive (Tenn.) 64 L. R. A. 448, 79 S. W. 124, recognizing that evidence of custom which violates settled rule of law is inadmissible.

28 L. R. A. 439, GREENBERG v. WHITCOMB LUMBER CO. 90 Wis. 225, 48 Am. St. Rep. 911, 63 N. W. 93.

Master's duty to warn.

Cited in note (44 L. R. A. 60) on duty of master to instruct and warn servants as to perils of employment.

Liability of servant, agent, etc., for his acts.

Approved in Luling v. Sheppard, 112 Ala. 593, 21 So. 352, denying right to defend action of forcible entry and detainer on ground that defendant was acting as agent; Lawlor v. French, 14 Misc. 499, 35 N. Y. Supp. 1077, holding president and manager of theater company liable for injury to employee by kick of vicious horse used in play.

Cited in notes (28 L. R. A. 438, 442) on liability of agent or servant to third persons for his own negligence on nonfeasance; (28 L. R. A. 427) on personal liability of officers of corporation for its torts or negligence.

Joint action against master and servant.

Approved in Charman v. Lake Erie & W. R. Co. 105 Fed. 454, holding joint action maintainable against railroad company and foreman switch yard for injury to servant through negligence of latter; Howe v. Northern P. R. Co. 30