of the defendant are necessary in a garnishment proceeding. A writ of attachment and notice of garnishment against W. J. M. will not impound a debt due W. G. M., unless the proof shows that the garnishee had actual knowledge of the identity of the debtor and the person named in the process. German Nat. Bank v. Nat. State Bank, 427.

INJUNCTION:

CONTRACTS-WATER RIGHTS.-A provision in a water right contract between an irrigating ditch company and parties owning lands irrigated therefrom, to the effect that if the company should at any time willfully or malignantly fail or refuse to furnish water, the water right holder shall, under specified conditions, have a right to take all the water to which he may be entitled, is contrary to public policy, inoperative and void, and the water right holder should be restrained from the attempted exercise of such supposed right. Farmers' Highline Canal & Reservoir Co. v. White, 1.

INSOLVENCY:

SUSPENSION OF PAYMENT.-A person is insolvent and suspends payment when he is unable and fails to pay his debts in the due and ordinary course of his business. Lindsey v. Flebbe, 218.

INSTRUCTIONS:

1. AD DAMNUM.-An instruction limiting the verdict which the jury might return to the amount claimed in the complaint in an action to recover the value of services rendered is correct. Rose v. Otis, 472.

2. DIRECTING VERDICT.-An instruction directing a verdict for the plaintiff can be justified only where the pleadings and evidence leave no room for a difference of opinion, and where the judgment which should be rendered is manifest and indisputable. McQuown v. Thompson, 466.

3. NEGLIGENCE-EVIDENCE-ALLEGATIONS AND PROOF.-Where the only negligence charged in a complaint for damages for injuries resulting in the death of a child was that occurring on the occasion of the accident, negligence or care on other occasions is not in issue, and evidence as to such negligence or care is inadmissible, and instructions based on such evidence are erroneous. Pueblo Building Co. v. Klein, 348.

4. PRACTICE. It is the duty of the court, before the argument is begun, to give the jury such instructions upon the law applicable to the facts as may be necessary for their guidance. Pickett v. Handy, 295. 5. UNSUPPORTED.-An instruction not supported by the evidence, or at variance with it, is erroneous. McBride v. The People, 91.

INSURANCE:

1. DEFENSE.-In order that the falsity of a representation in an ap

plication for insurance may be a defense to an action on the policy, its subject-matter must be something which the insurer was entitled to know and which would probably have influenced it in determining whether it would enter into the contract. Travelers' Ins. Co. v. Lampkin, 177.

2. LIFE INSURANCE-CONTRACT.-It is competent for a life insurance company to stipulate that it shall not be liable except upon compliance by the insured with whatever conditions precedent it may attach to the contract. Newcomb v. Provident Fund Society, 140.

3. SAME STIPULATION IN POLICY.-That a policy of life insurance shall be countersigned by the agent of the company before it shall become a valid obligation, is a stipulation the company has a right to make, and the completion of the contract with the signature of such agent during the lifetime of the insured is essential to the existence of an obligation which can be enforced against the company. Ib.

4. WARRANTY-APPLICATION.-Where a statement in an application for insurance is a warranty, and therefore a part of the contract, the question of its materiality does not arise, and unless the proof shows that it is literally true, there can be no recovery on the policy; whereas a representation is merely a portion of the preliminary proceedings proposing the contract, operating, if material, as an inducement to the execution of the policy. Travelers' Ins. Co. v. Lampkin, 177.

5. SAME POLICY.-Where the language of the policy of insurance was "The Travelers Insurance Company * * * in consideration of warranties in application for this policy *** does hereby insure," etc., held: This was sufficient to make the warranties in the application a portion of the policy. Ib.

6. SAME STATUTORY CONSTRUCTION.-The requirement of the statute (Mills' An. Stats., sec. 2232) that certain contracts of insurance must be plainly expressed in the policy, was intended to prohibit secret agreements of insurance companies with certain of their patrons, whereby the latter would obtain some concessions or advantages over others of the same class and equal expectations of life. Such agreements are required to appear in the policy, but not warranties or statements of the insured which are conditions of the insurer's liability. Ib.

INTEREST:

WHEN NOT ALLOWABLE.-When there is nothing in the statute authorizing the recovery of interest on a claim, it is error to allow it. Colo. Coal & Iron Co. v. John, 213.

INTERVENTION:

1. DAMAGES.-Under the circumstances of this case, the intervenor was not entitled to recover, as damages, the amount paid upon storage charges incurred while the goods were held under attachment. Joslin v. Teats, 531.

2. FINDINGS.-It is not necessary in a judgment in favor of an intervenor in an attachment proceeding to find the value of each article attached. Ib.

JUDGMENT:

1. CONTRACTS-TRUSTEE'S LIABILITY.-A contractor, for the building of a city sewer, agreed to buy certain material from a manufacturer, payments to be made by an attorney in fact who was designated as trustee, and who held an irrevocable power from the contractor to collect and receive from the city all warrants or other evidences of indebtedness for work done or materials furnished, or to be done or furnished under the contract, and apply the proceeds to the payment of materials used in said sewer and the labor employed in constructing the same. The trust was accepted by the trustee, who agreed to execute it in accordance with the contract creating it, construed with the power of attorney from the contractor. Held, that a joint judgment against the contractor and trustee must be confined to the amount, if any, for which the latter is in default; and, further, that the trustee was not liable for material not used, although ordered by the contractor. Williams v. Laclede Fire Brick Mfg. Co., 311.

2. REVIVAL OF JUDGMENTS.-Causes concerning the revival of judgments are triable to the court which hears and determines the question of fact whether the judgment remains unsatisfied in any part, and, on its conclusion respecting this proposition, renders judgment to revive, or denies the petition. Russell v. Daniels, 224.

3. SAME-QUANTUM OF PROOF.-In 1874 D. & Co. recovered judgment against R. & S. This proceeding to revive the judgment was commenced in May, 1891. Held, that the claim is so stale and offensive in its antiquity that a judgment of revival should not be entered, unless the court is clearly satisfied that the judgment remains unpaid. As against such claims, the presumption of payment is exceedingly strong. Ib.

JURISDICTION:

1. APPELLATE COURT-FINAL JUDGMENT NECESSARY TO A REVIEW. -To give the appellate court jurisdiction, the record must show a final judgment in the court below, and the ruling of the trial court upon an interlocutory motion cannot be reviewed except in connection with the record of a final judgment. Winscott v. Shelton, 357.

2. SAME. Neither joinder in error nor consent of parties can confer jurisdiction on this court by appeal. Bogert v. Adams, 510.

3. APPEALS FROM COUNTY TO DISTRICT COURT IN PROBATE MATTERS.-A claim against an estate was, upon hearing in the county court, allowed. One who was neither claimant nor representative of the estate, but a stranger to the record, prayed and obtained an appeal to the district court, which, notwithstanding a motion to dismiss the

appeal as unauthorized, proceeded to an adjudication of the demand, rendered judgment against the claimant upon the claim, and in favor of appellant for costs. Held, that the appeal was a nullity; that the district court acquired no jurisdiction of the cause; that all its proceedings were void, and that the want of jurisdiction appearing upon the face of the record, it was not necessary to preserve exceptions to the rulings or final judgment. Roberts v. More, 511.

4. COUNTY COURT.-The county court cannot, in a criminal case appealed from a justice of the peace, render a judgment affecting the rights of an absent defendant. Morris v. The People, 138.

5. SAME-TRIAL DE NOVO.-The trial of a criminal case, appealed by defendant from the judgment of a justice of the peace to the county court, must be had de novo. It is error to dismiss the appeal on the ground that defendant failed to appear. The court has power, in such cases, to issue the requisite process to compel the attendance of defendant and force him to trial. Ib.

6. EQUITY.-A court of equity will not entertain jurisdiction where a plain, adequate and complete remedy can be had at law; but where a legal right has been invaded, if there is no remedy at law, or if the remedy which a court of law is able to afford is uncertain in its character, or fails in the full redress to which the suitor is entitled, jurisdiction will be asserted in equity. Pueblo & Arkansas Valley R. R. Co. v. Prowers County, 129.

JURY:

1. SPECIAL FINDINGS.-The court may, by questions stated to them in writing, require the jury to find specially upon particular questions of fact in case they render a general verdict, but if, in their discretion, they render a special verdict, such questions may be ignored. Pickett v. Handy, 295.

2. SPECIAL VERDICTS AND SPECIAL FINDINGS DISTINGUISHED.—A special verdict covers the whole case equally with a general verdict, but a special finding may embrace only a portion of the facts necessary to a judgment. Such findings do not take the place of a verdict, general or special. Ib.

3. VERDICTS, GENERAL OR SPECIAL.-In an action for the recovery of money only, the jury may in their discretion return a general or special verdict. The court has no authority to require either form. Ib.

LACHES:

1. Defense of-PLEA NOT ESSENTIAL.-A party desiring to invoke the powers of a court of equity to compel the specific performance of a contract must proceed with diligence and promptness. The defense of laches is in no sense dependent upon the statute of limitations; neither is a plea essential to this defense. Hagerman v. Bates, 391.

2. DILIGENCE IN PROSECUTION OF SUIT REQUIRED.-The mere insti

tution of a suit does not of itself relieve a party from the charge of
laches. If he fail in its diligent prosecution, the consequences are the
same as though no action had been commenced. Ib.

LANDLORD AND TENANT:

TERMINATION OF TENANCY-STATUTORY CONSTRUCTION. - Section
1976, Mills' An. Stats., which provides that a tenant from month to'
month is entitled to ten days' notice to quit to terminate the tenancy,
has no application to an action to recover rent for premises occupied
without a lease from month to month, or other definite period, brought
after the premises had been voluntarily vacated by the tenant. Salomon
r. O'Donnell, 35.

LEVY:

1. ATTACHMENT.-A failure to pursue the statutory requirements is
held to be fatal to a levy. The steps requisite to constitute a levy of a
writ of attachment upon real property belonging to the defendant, but
standing on the records of the county in the name of some other person,
are stated in the opinion. Graham v. Reno, 330.

2. SAME-BURDEN OF PROOF.-Wherever the wrongful levy of a writ
of attachment is the gravamen of a suit, the burden is with the plaintiff
to show that in fact a levy was made, unless it concerns personalty and
there be some circumstances of dispossession or disturbance of the
owner's rights which will sustain a suit. Ib.

3. EXECUTION-PRESUMPTION.-Between a judgment debtor and a
stranger purchasing without notice of irregularities in the execution
of the writ, the purchaser has the right to presume that all acts of the
officer under the writ prior to the sale were in compliance with the
law, and is only bound to know that there was a valid judgment upon
which the writ was regularly issued, and that the property had been
properly advertised for sale. His title would rest upon the judgment,
the execution, sale under it, and the sheriff's deed. Herr v. Broad-
well, 467.

4. SAME-INDORSEMENT OF LEVY ON WRIT NOT REQUIRED.-It is not
necessary to a valid or effective levy on real estate that it be indorsed
on the execution; the officer is required only to designate the particular
land subject to the writ, by some record of what is done, accessible to
the judgment debtor and to the public. Ib.

5. SAME-RECORD OF LEVY.-The statute not requiring that a record
of the levy of execution on real estate shall be made upon the writ, such
record may be made elsewhere, provided it is equally public and per-
manent. Ib.

LIBEL:

1. DAMAGES EVIDENCE.-Where the words are actionable per se,
the law presumes damages. No special evidence concerning them is