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land for him, agreeing to pay them $200 for their sery. ness to reduce his rates for advertising or lose cus. ices, but stipulating that tbey were to receive nothing tomers, indicates a malicious purpose to injure the unless they regained the land for him, and placed in business of the latter within the meaning of section their hands a refunding bond by which was obligated 4466a, Rev. st. 1898.-STATE V. HUKGIN, Wis., 85 N. W. to him for the loss of the land, the attorneys having Rep. 1046. procured C to purchase the land and convey it to Min 10. CONTRACTS - Breach - Measure of Damages.discharge of his obligation, the contingency has hap.
where a manufacturer of ice contracted to supply a pened upon which the attorneys were to be entitled to
local dealer at a certain price for the season, but tbe stipulated fee.-MCINTOSH V. BACH, Ky., 62 8. W. failed to do so, and the dealer, after being supplied Rep. 515.
for some time by other parties, was finally compelled 3. BAIL-Amount of Bond.-A ball bond in the sum to abandon his business before the season closed, and of $600 is not excessive in a prosecution for assault the evidence showed the daily profit made wbile supwith intent to commit rape.-EX PARTE SCOTT, Tex., plied by other parties, his profits were not so uncer. $28. W. Rep. 568.
tain and remote as not to be recoverable in an action 4. BANKS AND BANKING – Insolvent National Bank
for breach of contract.-BORDER CITY ICE & COAL CO. Stockholder's Liability.-Where, on an issue as to
V. ADAMS, Ark., 62 S. W. Rep. 591. whether defendant was liable as a stockholder of an 11. CONTRACT8-Convict Labor.- Where, under a coninsolvent national bank, it appears from an agreed tract between defendants and the warden of the State statement as to what the bank books and reports prison by which the warden was to furnish them with show that, at the time the four shares in question pur the labor of 310 convicts at a stated price per day, the ported to have been transferred to him by the presi: plaintiff, while a convict, was required by the warden dent, the latter's stock was all pledged, it must be to work for defendants, and they paid the State the held that defendant acquired no stock, and never in contract price for his labor, after plaintiff's discharge reality became a legal shareholder, and hence is not from prison he cannot recover the value of his work subject to a shareholder's liabilities.-BURT V. Rich. from defendants, even if his commitment to prison MOND, U. S. D. C., D (t.1. 107 Fed. Rep. 387.
was void, since be had no contract relations, express 5. BENEFIT INSURANCE-Right of Action.- Where a
or implied, with them.-THOMPSON V. BRONK, Mich.,
85 N. W. Rep. 1084. beneficiary in a fraternal insurance organization is denied the remedy by appeal provided for by the as.
12. CONTRACT-Recovery for Partial Performance.sociation, he may maintain a suit at law,-ROSE V.
Where a contractor agreed to decorate the walls, ceilSUPREME COURT, ORDER OF PATRICIANS, Mich., 85 N. ing, and woodwork of a room, and equip it with furpi. W. Rep. 1073.
ture, at the agreed price of $5,200, defects in the wood. 6. BILLS AND NOTES - Joint and Several Liability.
work which afterwards develop, and which are shown Where a note, worded in the singular, was signed by
to be completely remediable at a cost not to exceed A, and by the firm of G&H, aud by G, a suit on it
$500, should not preclude a recovery of the contract against Gonly was not objectionable because I was
price, lesg a deduction of that amount, as the detects
do not reach the entire consideration; substantial pernot joined as a party, since the obligation was joint
formance of the contract in all other particulars being and several.-DOW LAW BANK V. GODFREY, Mich., 86
shown.-PHILIP Hiss Co. v. PITCAIRN, U. S. 0. C., W. N. W. Rep. 1075.
D. (Pa.), 107 Fed. Rep. 425. 7. BONDS-Power of Township to Issue.-Under
13. CONTRACTS – Rental of Personal Property.Lavs Kap. 1886, p. 123, relating to the organization of
Where defendant contracted to pay plaintiff three. new counties, which provided that no bonds of any
quarters of a cent per pound per month for the use of kind should be issued by any county organized there.
chain belonging to a wrecking apparatus from the under, or by any subdivision thereof, within one year
time the chain was taken until it was returned, and after such organization, and which was amended by
the contract further provided that all the apparatus Law, 1887, p. 186, so as to read that “no bonds shall be
should be returned by a certain date, defendant was voted for and issued by any county or township within
liable for the stipulated rental until the property was one year after the organization of such new county
returned, and pot merely for rent to the time oxed for under the provisions of this act," a township bad no
return, and damages for the failure to return at that power to vote upon the issuance of bonds within a
time.-MCMORRAN V. HALL, Mich., 85 N. W. Rep. 1108. year after the organization of the county, and rail. road aid bonds issued pursuant to a vote at an election 14. CONTRACT-Tender of Performance.-An instruc. held within a year after the organization of the county tion that, inasmuch as a builder was prevented from are void, although not issued until after the expira. going on with big contract, he was entitled to recover tion of such year, and, where the date of the election for what he had done, ir bis tender of performance by appears upon their face, all parchasers are chargeable the correction of defects was made in good faith, was with notice of their invalidity.SAGE V. FARGO TP.U.
correct because the tender may bave been made 8. C.C. of App., Eighth Circuit, 107 Fed. Rep. 383.
ondition that sumg claimed to be due should first
be paid, and no reference was made thereto, as the 8. BUILDING AND LOAN ASSOCIATION8-Mortgages
condition was a circumstance to be considered by the Parol Testimony.-Where a landowner bought stock
jury with others in determining whether the tender in a building and loan association, and pledged the
was made in good faith.-CA88 COUNTY V. Gibson, U. same for a load secured by a mortgage on real estate,
S.O.O. of App., Sixth Circuit, 107 Fed. Rep. 363. which contained no provision for the release of the mortgagor on the sale of part of the property and as. 15. CONTRIBUTORY NEGLIGENCE-Evidence.-Plaintsumption of the mortgage by the purchaser, evidence Iff, driving on a load of hay, turned onto a street used of prior negotiations between the mortgagor and an by an electric railway company, and passed upon the agent of the association that on such sale and assump track without looking, and was struck by a car com. tion the mortgagor should be released from liability ing up from behind, and was injured. Held, that he to the association, was inadmissible in an action to was guilty of contributory negligence if the car was in foreclose the mortgage on property so sold, in the ab sigbt and could have been seen when he turned upon sence of fraud or mistake, ag tending to vary the the track.-MCCLELLAN V. CHIPPEWA VAL. ELEC. RY. terms of a written contract by parol.-PEOPLE'S Co., Wis., 85 N. W. Rep. 1018. BLDG., LOAN & SAV. ASSN. v. Ghio, Tex., 62 8. W. Rep. 16. CORPORATIONS — Assignment of Note to Presi.
dent.-The assignment by a corporation of a pote to 9. COMBINATIONS-Conspiracy.-An agreement be. its president is valid, il made to reimburse the as. tween several independent concerns, each publishing signee for money advanced for the corporation, and & newspaper and furnishing thereby means for adver: if the corporation was solvent; and, there being testi. tising, to compel a fourth person engaged in like busi. | mony tending to establish each of these facts, the
question was for the jury.-BLAKE V. RAY, Ky., 62 8. that after she promised to marry him he began to ply W. Rep. 521.
his arts to seduce the prosecutrix; and that she gave 17. CORPORATIONS - Promoters -- Secret Profits.
birth to twins born out of wedlock,WAS sumcient to Promoters of a corporation, who become stockbolders
sustain a conviction for seduction.-STATE . FISHER, therein, assume a trust relation to the company and
Mo., 62 S. W. Rep. 690. the other stockholders, which binds them to act openly 24. DEED-Description of Property.- A deed describand in good faith in all matters connected with its ing the land conveyed as adjoining "the toll-gate organization, and the acquiring of the property Dec. property" cannot be construed as including the tollessary for the transaction of the business for which it gate property.-PATTERSON V. LEXINGTON, N. & D. is organized, and they will not be permitted to make a TURNPIKE ROAD CO., Ky., 62 S. W. Rep. 528. secret protit on the sale of such property to the corpo. 25. DEED-Patent-Mandamus.-A writ of mandamus ration, at least when by making themselves officers will not be awarded to compel the commissioner of and directors in the initial organization they control the general land once to issue a patent, where there the corporation, and assume to act in its beball i is an adverse claimant to the land, who is not a party making the purchase.-YEIBER v. UNITED STATES
to the proceeding.-CHAPPELL V. ROGAN, Tex., 62 S. BOARD & PAPER Co., U.S. C. O. of App., Sixth Circuit, W. Rep. 539. 107 Fed. Rep. 340.
26. DEEDS-Updue Influence-Evidence.- A mother 18. CRIMINAL EVIDENCE – Acts of Co.Conspirators. deeded certain land to a son by a second marriage, Under an indictment for grand larceny against several and 13 years thereafter a daugbter by the first mar. persons jointly, alleging that the offense was com. riage sued to set aside the deed as procured by undue mitted by stealing tobacco pursuant to a conspiracy, Influence. It appeared that several years prior to the upon the trial of one of the defendants evidence as to giving of the deed an estrangement had arisen be. sales of tobacco made by & co.defendant was not ad. tween the mother and daughter, and there was evi. missible in the absence of evidence tending to estab. dence that the parties had pever become reconciled, lish the alleged conspiracy.-STOVALL V. COMMON. and that the mother had stated that notwithstanding WEALTH, Ky., 62 8. W. Rep. 686.
the deed she had done more for the daugbter than she 19. CRIMINAL LAW-Burglary-Attempt.-Defendant could for the son, and there was no evidence to disknocked at the door of the house of prosecutrix, and prove such statement, nor was there any evidence
sked to be let in, and told her that it would be better showing undue influence on the part of the son. Held, for her if she did so, but she refused, and opened a
that complainant's suit bad po merit.-RIDLEY V. back door, and ran to a neigbbor's, and on returning CHRISMAN, Tenn., 62 S. W. Rep. 661. with the neighbor they found the defendant, who, 27. EVIDENCE-Burning of Property by Insured.- In baving entered through such open door, was coming an action on a policy, where defendant claimed that out of the house. Held not suficient to warrant a plaintiff had hired a person to burn the insured house, conviction for attempted burglary under Pen. Code, evidence that no one had been indicted for burning art. 850, detiping an attempt to commit burglary as an the house was not admissible.-LIVERPOOL & L. & G. endeavor to accomplish the crime carried beyond INS. Co. V. JOY, Tex., 62 8. W. Rep. 546. mere preparation, but falling short of the ultimate de.
28. EVIDENCE-Certificate of Notary.- Section 2635, sign in any particular.-FONVILLE V. STATE, Tex., 62
Comp. Laws, providing that the certificate of a notary 8. W. Rep. 572.
public of official acts done by him shall not be evi. 20. CRIMINAL LAW-Homicide-Provoking Difficulty. dence of non-payment or non-acceptance in any case -Where the only evidence as to tbe beginning of the
in wbich a defendant sball annex to his plea an afhda. dimculty in which defendant killed deceased was
vit denying the facts of having received such notice, tbat, wbile deceased was standipg at the bar in de excludes the admission of such certificate as secondtendant'g saloon, defendant entered witb a gun in his ary evidence when the potary is dead.-SEXTON V. band, and passed by deceased to a door opposite, and PERRIGO, Micb., 85 N. W. Rep. 1096. remarked, "Boys, here is a gun Sleft with me for J.
29. EXECUTION-Rights of Mortgagee.-Comp. Lawe, It is Sunday, and the doors ought to be closed," and
$ 4389, provides that, when mortgaged pereopalty is deceased turped,saying, "There is the son of a — ,"
levied on before the property is taken, the officer whereupon the shooting began, it was error to give in.
must pay or tender the amount of the mortgage debt, structions on "provoking the difficulty," since the at.
or deposit the amount with the county treasurer to tack, whether by deceased or by defendant, was with.
tbe order of the mortgagee. An execution was levied out provocation.- WHITE V. STATE, Tex., 62 S. W. Rep. 575.
on certain mortgaged property in possession of the
mortgagee. The judgment creditor and the sheriff 21. CRIMINAL LAW-Intoxicating Liquorg- Local Op. had full knowledge of the existence of the mortgage. tion.- Where whisky consigned to defendant C. 0. D. No tender was made of the amount due, and no dewas in the express office, and he received money from posit was made with the county treasurer. Held, certain witnesses with which be paid for tbe whisky, that the mortgagee was not estopped to claim such which begave to such witnesses, it was not error for property, to the extent of his mortgage lien, by de. the court to instruct that, it defendant received the
llvering to the sheriff a receipt for the property, con. inoney with the understanding that the witnesses ditioned that on default in redelivery he would pay were to bave the whisky, the transaction constituted the amount of the execution.-PLUNKETT V. HANSCKA, a sale.-TREADAWAY V. STATE, Tex., 62 S. W. Rep. 574. 8. Dak., 85 N. W. Rep. 1004.
22. CRIMINAL LAW-Malicious Mischiet-Indictment, 30. EXKCOTORS AND ADMINISTRATORS - Survival of -An indictment charging that defendant did, in a cer. Cause of Action.-Though a cause of action for the death tain county and State, unlawfully and willfully injure of an intestate, which survives to big administrator and deface a public building, to wit, Rose School under the New Hampshire statute (Pub.st. 1901, ch. 191, House, a public building of E county, and held for $S 8-12), is transitory, the survival is wholly where the publ c use, le sufficient to support a prosecution for right is, and local, and, the right to sue arising wholly injuring and defacing a public building.-MITCHELL in that State where the accident causing deat V. STATE, Tex., 62 8. W. Rep. 572.
curred, it is not carried by the statute to & Vern opt 23. CRIMINAL LAW-Seduction.-Evidence that prose.
administrator of the decedent, endeavoring to sue de.
fendant in the latter State.LYON V. BOSTON & M cutrix was a young woman of chaste character prior
.R. to her seduction; tbat defendant often visited her.
Co., U.S.O.O., D. (Vt.), 107 Fed. Rep. 396. and made extravagant professions of affection, by 31. FRAUDULENT CONVEYANCES.- Where one joint which he finally gained her consent to marry him, maker of a note, believing the pote paid by the other and that be admitted that he wrote her letters intro. maker, before suit thereon conveyed an undivided duced in evidence, containing amorous passages, and I interest in land which he had just inherited to his
wile, in payment of money which he bad borrowed sive on the question of residence.-MINNESOTA STONEfrom her and promised to repay, and to secure a WARE CO. V. MCCROSSEN, Wis., 85 N. W. Rep. 101. homestead for her, such conveyance was not fraudu.
88. HOMICIDE-Former Conviction-Second Indict. lent as to the holder of such pote, and should not be
ment.-Under Const. art. 2, $ 28, prohibiting a person set aside at the suit of such creditor.-COLE V. COLE,
from being twice placed in jeopardy for the same ol. Mieb., 85 N. W. Rep. 1098.
fepse, but providing that a reversal of a judgment of 32. FRAUDULENT CONVEYANCE8-Deed to Wife. - De. conviction for error of law shall not prevent a new fendant owned 160 acres of land, 40 of which was his trial on a proper indictment, a prisoner convicted of homestead, another 40 wag mortgaged for more than murder in the second degree, under an indictment for It was wortb, and the remaining 80 he transferred to first-degree murder, which judgment is reversed on bis wife without consideration. In a salt by defend appeal, may be retried under a second indictment, ant's mortgagee to set aside this transfer in order to charging murder in the first degree. Such new trial collect a deficiency judgment, it appeared that an exe. for first-degree murder is not a violation of tbe fourcotion, issued against defendant shortly after the teenth amendment of tbe United States constitution, transfer, had been returned nulla bona, and, though requiring trial by due process of law, since the State defendant testified that at the time of the transfer he has a right to impose conditions for the granting of owned considerable personal property, he was unable new trials.-STATE V. GODDARD, Mo., 62 S. W. Rep. to remember whetber or not It was mortgaged. Held 697. not to show the defendant was amply able to pay bis 39. HOSBAND AND WIFE-Deed-Right of Survivor. debts, and had no creditors other than the plaintiff, ship.-Uoder Ky. St. $ 2143, providing that “If real es. so as to make the transfer to his wife valid.- GRUNER
tate be conveyed or devised to husband and wife, un. 7. BROOKS, Mich., 85 N. W. Rep. 1086.
less a right of survivorship is expressly provided for, 83. FBAUDOLENT CONVEYANCE8-Mortgages.- Where there shall be no mutual right to the entirety by sur. & mortgage includes both real estate and personalty, vivorship between them, but they shall take as ten. and the mortgages permits the mortgagor to retain a ants in common, and the respective moieties shall be portion of the personalty consumable in the use, to subject to the respective rights of the busband or wife sell and exchange the same at will, and to retain some as herein fixed, with all other incidents to such ten. of it long after default, and the mortgage gives no | ancy," a deed conveying land to husband and wife, power of sale, except of certain of the personalty, It "and upon their death" to others, or to them "during will be declared void as against judgment creditors of their natural lives," amounts to an express provision the mortgagor.-MORRIS V. CLARK, Tenn., 62 $. W. for the right of survivorship, witbin the exception of Rep. 673.
the statute, unless the presumption that such was the 34. GARNISHMENT-Equitable Contingent Contract.
intention be rebutted by the terms of the deed.Defendant and Ventered into a contract to engage in
MCALLISTER V. FOLDEN'S ASSIGNEE, Ky., 62 S. W. Rep. the loan and real estate business for three years, de.
538. fendant to draw a salary of $100 per month until the 40. INFANTI-Stepchildren-Support.-Where defend. termination of the contract, when he was to receive & ant moved on his wife's farm, and used the products certain per cent. of the profits of the business, pro. of it in the support of her children by a former mar. vided that there were any profits in excess of the sal. riage, and after the death of their mother the step. ary already drawn, after collecting all claims. Held, children sued defendant for railroad ties wbich be that the fact that the defendant's interest in the con. had sold off the land, it was error to refuse to allow tract could not be reached by trustee process or ordi. defendant a counterclaim for the support and main. Dary garnishment proceedings, prior to the termina tenance of the stepchildren, since he assumed to sup. tion of tbe contract, because defendant's interest was port them only with the aid of their means.-KEMPcontingent, did not entitle plaintiffs to maintain an SON V. GO88, Ark., 62 S. W. Rep. 582. action of equitable garnishment, since the unascer.
41. INSURANCE-Failure to Promptly Pay Logs-Con. tained profits of a contingent contract cappot be
stitutional Law, - Rev. Stat. Texas 1895, art. 3071, reacbed by equitable garnishment.-STEVENSON V.
imposing on a "lile or health insurance company's MCFABLAND, Mo., 62 S. W. Rep. 694.
an additional liability for its fallure to pay a 35. GUABANTORS-Extension of Time - Release of loss within the time specified, consisting of 12 Guarantor. A release of guarantor of a railroad per cent. damages on its amount, and attorney's construction company's agreement to pay contract.
fees for its collection. is not repugnant to the ors for their work, resulting from an extension of
provisions of the federal constitution against time for its completion without the guarantor's as. taking property without due process of law, and gent, would not release the latter from liability for guaranteelpg all persons the equal protection of wbat had been done before the extension. - O'BRIEN the law. Such article, however, bas no appli. V. CHAMPLAIN CONSTRUCTION CO., U.S.C.O., D. (Vt.), cation to accident insurance companies, whether 107 Fed. Rep. 338.
they were & part of the res gestae or pot, and po predi. 36. GOARDIAN AND WARD-Compensation-Res Judi.
cate was needed for such evidence after proof of the
conversation by defendants.- FIDELITY & CASUALTY cata.-Where certain compensation was allowed a guardian by the clerk of the county court, and was
CO. OF NEW YORK V. DOROUGH, U.S. 0. C. of App., ratified and afirmed by the court, and subsequently
Fifth Circuit, 107 Fed. Rep. 389. soch allowance was confirmed by the cbancery court 42. INTERNAL REVENUE STAMPS-Chattel Mortgageof another county on a petition by the guardian to re Validity.-Where plaintiff, on taking a chattel mort. move the guardianship to the latter county, the gage securing 12 poteg, placed a United States revenue guardian could not thereafter be charged with such stampon eacb note, but none on the chattel mortgage, allowance in a suit by the ward to remove the guard. without intent to defraud the revenue, but with the ian, and charge blm with the allowance, owing to belief that the stamps on the notes were sufficient, the breaches of duty.-TURNER V. TURNER, Tenn., 62 S. W. mortgage was valid and binding upon the parties in a Rep. 607.
State court.-PLUNCKETT V. HANSCHKA, S. Dak., 85 N. 37. HOMESTEAD-Change of Residence.- Where the
W. Rep. 1004. owner of a bomestead moved with his family to a dig.
43. INTERPLEADER-Bill by Tonant.-A bill of inter. tant State, where be remained more than toree years,
pleader by a tenant against his landlord is, in effect, a the floding of the trial court, on his positive testi.
dispute of big landlord's title, and hence should be mony, that the removal was temporary, and without
dismissed.-WHITAKER V. WHITAKER, Tenn., 62 8. W. intent to abandon his homestead, should not be re
Rep. 664. versed, thougb he registered and voted several times 44. INTOXICATING LIQUORS-Sales w!thout Licensein such state, since the fact of voting is not conclu. | Retail.- Where, in a prosecution for retailing liquor
without having paid the special tax, defendant claimed that be sold 18 quart bottles at a time, deliver. ing it to the purchasero in less quantities as required by the purchaser, and receiving pay for the same, but there was no evidence that any specific 18 quarts of beer were set apart for the purchaser with the intent that the property therein should presently pass, defendant was guilty of retailing liquor, within Comp. Laws, $ 6380, defining a retail dealer as one sell. ing one dozen quart bottles or less at one time to any person or persons.-PEOPLE V. LUDERS, Mich., 85 N. W. Rep. 1081.
45. JUDGMENT-Execution-Bond of Indemnity.-A sheriff having an ececution in his hands was notified by the attorney of the judgment debtors that the exe. cution was void, and not to levy, and such debtorg executed a bond to indemnify the sheriff against loss or damage for failing to levy. The validity of the exe. cution depended on a new statute, which had pot been construed by the court, and the sheriff was in honest doubt as to his right to levy. Held, that taking the bond was not against public policy, nor in contravention of any statute, and, the sheriff's bondsmen having been compelled to pay the amount of the execution, their assignee may recover on the bond of in. demnity.-RAY V. McDEVITT, Mich., 85 N. W. Rep. 1087.
46. JUDGMENT-Matters Concluded by Decree, -A petition in intervention was filed in a railroad fore. closure suit setting up a claim for rental of terminal property against the defendant accruing prior to the appointment of receivers in the suit, on account of which the intervenor claimed a statutory landlord's lien, and also that its claim constituted a preferential debt in equity entitled to priority over the debt of the mortgagee ag a part of the necessary expenses of operating the road. Issue was joined on both of such clains, and on a hearing the petition was dismissed on the merite, and the decree of dismissal was afirmed on appeal. Subsequently the receiver having accu. mulated & fand in the registry of the court from the earnings of the road, the intervener filed an amended petition asserting its equitable right to preferential payment from such fund. Held, that the former de. cree was conclusive against its right to maintain such petition, the claim made, as well as the right in which It was asserted, in the two petitions being identical, and one which, bad it been sustained in the first pro. ceeding, would have been a charge upon the same fund when subsequently earned.-MANHATTAN TRUST Co. v. TRUST CO. OF NORTH AMERICA, U. 8. C. C. of App., Eighth Circuit, 107 Fed. Rep. 328.
47. LANDLORD AND TENANT-Attornment-Action for Rent.-Plaintiff's tenant leased the premises from de. fendant, who claimed them under leases made to him by a city which had obtained them at a tax sale; de. fendant agreeing to save the tenant harmless trop any loss or damage on account of plaintiff's claim for possession. The tenant assigned his claim for rent paid under such lease to plaintiff. Heid, in an action by her for such rent, that it was error to direct a ver. dict in her favor on the ground that a tenant cannot make a valid attornment to a third person, since, as there was no stipulation in the lease as to taxes, they were payable by the landlord, and the tenant was en. titled to show that his landlord's title has been extin.
ned by sale for such taxes.-SHERMAN V. SPALD. ING, Mich., 85 N. W. Rep. 1129.
48. LARCENY OF MONEY--Sufficiency of Indictment.An indietment charging theft of $35 in money, of the value of $35, suficiently describes the stolen property, though it does not state the denomination or charac. ter of the money stolen.-BELL V. ETATE, Tex., 62 S. W. Rep. 567.
49. LIBEL-Relevant Allegation in Pleading- Privi. lege.-An allegation, though false, by the defendant in a cross complaint in a divorce proceeding, that her husband had been cobabiting with the plaintiff, was an absolutely privileged statement, for which libel will
not lie, since it was made in the due course of legal proceedings in a court of competent jurisdiction, and relevant to the issues therein.-JONES V. BROWNLEE, Mo., 61 S. W. Rep. 795.
50. LIFE INSURANCE-Evidence.-The written decla. ration of the insured that the policy had not been delivered to him, that he had not paid the premium, and that he desired it to be canceled, was admissible on the defense that tbere never was a binding contract.ATKINS V. NEW YORK LIFE INS. Co., Tex., 62 S. W. Rep. 563.
51. LIFE INSURANCE-Insurable Interest-Brother.A life insurance policy may be taken out for the benefit of a brother of the insured, and it is immater. ial what arrangements are made between them for the payment of premiums.-FIDELITY MUTUAL LIFE ASSN. V. JEFFORDS, U.S. C. C. of App., Fifth Circuit, 107 Fed. Rep. 402.
52. LIFE INSURANCE -- Misstatements and Conceal. ments-Effect of Good Faith.-Code, Ga. 1895, $2097, re. quires applications for life insurance to be made in the utmost good faith, and declares that representa. tions are considered as covenanted to be true, and that a variation by which the nature, extent, or character of the risk is changed will void the policy. Section 2099 declares that the failure to state a material fact, if not done fraudulently, does not avoid the policy, but the willul concealment thereof, enhancing the risk, will avoid it. Section 2101 avoids & policy for wiltul misrepresentation as to any material inquiry made. Held, in view of this statute, that an untrue statement by insured that he did not have consumption, or his omission to name, when requested, all physicians who examined him within a specified time, would not avoid his policy, if his answers were made in good faith, and the misstate. ment or omission was not wilful, but due solely to his ignorance or failure to recollect, not witbstanding he distinctly certided that his answers were true, and agreed that, if any concealment or untrue statement or answer be made, the policy should be vold.FIDELITY MUT. LIFE ASSN. V. JEFFORDS, U.S.C.C. of App., Fifth Circuit, 107 Fed. Rep. 402. 53. LIFE INSURANCE - Provision that it Shall not ake Effect until Payment of Premium.-A policy of life insurance contained a provision that possession of it by the insured should not render it valid unless premiura thereon had actually been paid in cash. Such policy was issued on an application made through an agent of the company who was allowed by custom to retain bis commission from the first premium. The agent delivered the policy to the applicant, and himself remitted to the company the portion of the first premium in excess of his commission, taking a note from the applicant for an amount equal to about two-thirds of the entire premium. The compapy, in the belief that the premium had been fully paid in cash, credited the same to the policy holder, but on learning the facts after his death, and w
note wag wholly unpaid, at once repudiated the transaction and refused payment of the policy. The evidence showed that it was understood between the agent and the applicant that the note of the latter covered all he should be required to pay on account of the first premium, but the agent had no authority from the company, either express or by virtue of his agency, to accept legg than full payment in cash. Held, that aside from the question whether, under its terms, the policy would have become effective had the note been for the full amount of the premium, it did not attach in the absence of proof that the holder had either paid, or agreed to pay, in some manner, guch premium in full.-MUTUAL RESERVE FUND LIFE A88N. V. SIMMONS, U.S.C. C. of App., First Circuit, 107 Fed. Rep. 418.
54. LIMITATIONS-Oral Contract.-Rev. Stat. Texas, arts. 3354, 3356, provide that there shall be commenced and prosecuted, within two years after the cause of action accrues, and not afterwards, all actions for
debts not evidenced by contracts in writing and a and was killed. Held, in an action for his death, that longer time is fixed for debts founded on written con. it was proper to direct a verdict for defendant, since, tracts. Held, that the charter of a city railroad com as decedent knew of the danger by coming in contact pany, which authorized it to construct and operate its with a live wire, and the slippery condition of the Ines under such conditions and ordinances as tbe clty roof, and that, if he slipped, an involuntary movement might provide and impose, was not a contract in writ. might bring him in such contact, he assumed the risk. ing witbip such statute, on which a special assessment -DAVIS V. PORT HURON ENGINE & THRESHER Co., against the company for a street improvement, sub Mich., 85 N. W. Rep. 1125. sequently authorized by the legislature, was founded,
61. MASTER AND SERVANT - Fellow-Servante. -A as the contract mentioned by the statute is a contract
brakeman, and a fireman in the discharge of his ordi. between the parties, and the city was not a party to
nary duty of receiving signals from the brakeman and the company's charter, which was solely between the
repeating them to the engineer, are co-equal fellow. latter and the State, and hence the two years limita
servants, and the master is not liable for an injury to tions applied to actions for such assessments.-CITY
the brakeman by either the ordinary or grogs negli. OF GAL ESTON V. GUARANTY TRUST CO. OF NEW YORK,
gence of the fireman.-SOUTHERN RY. IN KENTUCKY C. S.C. C. of App., Fifth Circuit, 107 Fed. Rep. 325.
v. CLIFFORD, Ky., 62 S. W. Rep. 514. 65. LIMITATION OF ACTIONS-New Promise-Husband 62. MASTER AND SERVANT-Negligence.-A factory and Wife.-Under Comp. Laws, $8 9741, 9745, providing caught fire, and a servant sustained injuries by jumpthat no joint contractor shall lose the benefit of the ing from a third story window. In a suit for the inbar of limitations by a subsequent promise or pay. juries, plaintiff contended that the fire was caused by ment made by his joint contractor, Apayment the negligent maintenance by the master of a vat con. made by a hosband, and indorsed without the taining inflammable materialin proximity to a trip consent of his wife, on a mortgage jointly executed by hammer, and that the material was ignited by sparks them, does not defeat the bar of limitations in favor from the hammer. It appeared that the hammer was of the wite.-CURTISS V. PERRY, Mich., 85 N. W. Rep. situated 30 feet from the vat, and there was evidence 1131.
that the sparks from the trip hammer would pot con 56. LOGS AND LOGGING-Obstructions--Removal.-In
tain sufficient heat to cause any substance to ignite an action brought under Comp. Laws, ch. 129, provid
for a distance greater than 20 feet; that the fire was ing that where the owner of logs placed in a stream
first discovered on a rack beside the vat, the rack be. has not made adequate provisions for driving and
ing used to drain articles that had been dipped in the keeping the stream upobstructed, any other person
vat; that the vat was covered at the time, but that in driving logs on the stream may cause puch obstruc
endeavoring to put out the fire the cover was knocked tion to be removed at the expense of the owner of
off, and fire thereupon appeared in the vat. The same such obstructing logs, the defendants under the gen.
conditions had existed many years without developeral issue may show that there was a contract be.
ing danger from sparks. Held, that the evidence was tween the parties that each sbould drive certain por
insuficient to support a verdict that defendant wag
negligent in locating the vat and rack the distance tions of the logs of the other.-BELLOWS V. CRANE LUMBER CO., Mich., 85 N. W. Rep. 1103.
they were from the bammer.-DUNLAVEY V. RACINE
MALLEABLE & WROUGHT IRON Co., Wis., 85 N. W. Rep. 57. MASTER AND SERVANT – Assumption of Risk.
1026. Wbere a servant went into the mouth of an elevator bin to cave cotton seed which had become lodged
63. MASTER AND SERVANT - Negligence of Servant.therein, he assumed the risk of digging in the bottom
Where a boy seats himself on the hounds of a wagon, of the bin, whereby the seed slipped and crushed him.
the driver of which had been forbidden by his em -BROWNV, MILLER, Tex., 62 S. W. Rep. 547.
ployer to allow children to ride thereon, and is in
jured by the horses starting, the employer is pot lia58. MASTER AND SERVANT-Contract of Employment ble, even if the driver invited the boy to ride.-SCHULTermination.- Where a servant employed for a term
WITZ V. DELTA LUMBER Co., Mich., 85 N. W. Rep. 1075. of years consents to a termination of his contract, on his discharge before, the expiration of sucb term be 64. MINES AND MINERALS-Royalties-Computation. cannot maintain an action against the master for - Where the lessee of a mineral right, required to pay wrongtul discharge.- BELL V. GUND. Wig.. 85 N. W a sum for each ton of phosphate taken from the land, Rep. 1031.
-the same to be determined by the market price of 59. MASTER AND SERVANT - Death - Assumption of
the phosphate,-afterwards adopts a new method, by
which the mineral is divided into two classes, selling Risk.-An instruction that a locomotlve engineer
at different prices, the royalty is to be computed by 1899 meg all risks ordinarily incident to the business,
taking the combined values of the two products which but he may presume that the company will furnish a reasonably safe track, and he does not assume risks
the phosphate produces, though the phosphate has a
market value before its separation. Where one class brought about by the company's negligence, was not subject to the objection that he could only presume
of phosphate so produced is crushed and put in bags,
which was not required under the method in use when the company would use all ordinary diligence to fur.
the lease was executed, the lessor is not required to nish a safe track, and that he assumed the risk of a
have a portion of such additional expense deducted defective track, if, by the exercise of ordinary
from her royalties.-HARLAN V. CENTRAL PHOSPHATE care, he might have known it.-TEXAS & P. Ry. Co. v.
Co., Tenn., 62 S. W. Rep. 614. MCOLANE, Tex., 62 S. W. Rep. 565.
65. MORTGAGE-Interest - Tender.-The mortgagor 60. MASTER AND SERVANT - Death of Servant-As.
of a past due mortgage is not relieved from paying insumption of Risk.-Plaintiff's decedent was directed
terest before he is ready and willing to pay both prinby defendant to assist in stringing an electric wire, in
cipal and interest, and is prevented from so doing by the course of which were two electric light wires pass.
circumstances which would be the equivalent of a ing over the roof of a building. Decedent, holding the
tender.-ADAMS V. GREIG, Mich., 85 N. W. Rep. 1078. wire he was stretching in one hand, climbed on the roof of such building, and crawled under the electric 66. MUNICIPAL CORPORATIONS — Appropriations.wires, first touching tbem with his fingers to see it Under Ky. St. $ 2982, part of charter of cities of first they were alive, knowing the danger if they were. clase, providing that'any unexpended balance of an After getting under them on the roof, which was wet appropriation in any current fiscal year shall be and slippery, he attempted to walk along the roof, added by the comptroller to the amount appropriated and slipped, and, either to save himself from falling for the same purpose out of the levy for tbe succeed. or involuntarily, be took hold of the electric wire with | ing year," and that “unappropriated balances of his other hand, thereby making a complete circuit, revies in any current fiscal year shall be passed to the