NOTES OF RECENT CASES himself by withholding from him that which the court thought he was entitled to receive." QUO WARRANTO. (Compelling Grant of Peti tion for.) Ill. — The right of a private relator to institute proceedings in the nature of quo u'arranlo is sometimes of great importance, but as such action cannot be taken without consent of a prosecuting officer it is of interest to know that the Supreme Court of Illionis has decided in People;'. Healy, 82 X. E. Rep. 599, that manda mus will lie to compel signature of a petition therefore where the officer to whom application is made abuses the discretion entrusted to him in such matters. Relator in the mandamus proceedings alleged that a certain person was exercising without right, the office of treasurer of a corporation of which relator was secretary and a director; that he had applied to the states attorney of Cook County and to the attorney general for leave to institute quo warranto proceedings to inquire into the right to such office, but his request had been refused by both officers though no other legal remedy was suggested. The court refers to the history of the right to the writ and comes to the conclusion that in so far as it is a private remedy, allowance to begin the proceeding may be compelled as against an officer unjustly withholding his consent. RAILROADS. (Injuries to Animals on Right of Way.) Ala. — The case of Southern Ry. Co. v. Dickens. 45 So. Rep. 215, was instituted by de fendant in error for the recovery of damages for loss of a cow killed by the railroad company in the operation of its trains. The railroad company set up as a defense that plaintiff had agreed to main tain at his own cost and expense, fencing on each side of the railroad where it passed through his land, and that in consequence of allowing this fence to be broken down the animal for the death of which the action was brought, escaped to the track and was there killed, and that this failure to keep up the fence proximately contributed to plaintiff's damages. The court holds, however, that the answer is demurrable on the ground that the death of the cow did not proximately result from breach of the contract. RAILROADS. (Trespass.) Utah. — The Su preme Court of Utah in case of the Gesas v. Ore gon Short Line R. Co., 93 Pac. Rep. 274, held that a boy, who had waited half an hour for a train to move from a crossing, did not become a tres passer by attempting to cross between the cars,
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in the doing of which he was injured. The court said that he was " at a place where he had a right to be. His right to the use of the crossing was in most respects reciprocal and equal with that of the defendant except as to the right of way of passage." SHERIFFS. (Neglect — Indemnity.) Ky. — Whether, a sheriff may escape liability for failure to levy execution by reason of a bona fide claim that the judgment on which the execution is levied is invalid was discussed by the Court of Appeals of Kentucky in Crane;>. Crane, 105 S. V. Rep. 370. Execution was placed in the hands of the sheriff but attorneys for certain parties inter ested in the action notified him that they con sidered the judgment invalid and that if it should subsequently be so determined they would hold him liable for any loss suffered in case of levy. He consulted other counsel, who also expressed the opinion that the judgment was invalid. He then asked for an indemnity bond from execution plaintiffs, which was refused. The court said that if it were an open question, it might be seri ously doubted whether the sheriff had any author ity to inquire into the validity of the judgment under which execution was issued, but held that the question had been settled in that state by the decision in Board v. Helm. 59 Ky. (2 Mete.) 500, in which the officer stated in his return that the judgment on which execution issued was obtained without service on defendant in execution and the court decided that he was not bound to run the risk of the levy without indemnity. WILLS. (Revocation by Subsequent Marriage of Testator.) H. Y. Sur. Ct. — The contestant of the will involved in the case of In re Del Genovese's Will. 107 N. Y. Sup. 1033, claimed that it had been revoked by her marriage to testator subsequent to its execution. Proponent claimed that at the time at which decedent alleged she married testator, she had another husband living; that her marriage was therefore invalid and the will not thereby revoked. The evidence went to show that the former husband had disappeared several years before and that the marriage was contracted in good faith. The court held that that being so, it was not entirely .void, if even voidable, but was good as to all the world unless the first husband should appear and institute an action to annul the same. It naturally followed from such holding that the marriage revoked the will.
