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...............21, 35, 38, 68 CALIFORNIA........................7, 10, 29, 36, 46, 47, 48, 65 COLORADO
.............40 IDAHO............................................1, 8, 15, 22 IOWA..................................16, 24, 27, 41, 44, 51, 56 KANSAS.......................................... 19, 52, 54, 57 KENTUCKY, 2, 3, 4, 5, 13, 20, 23, 25, 26, 28, 33, 37, 49, 55, 59,
61, 64 LOUISIANA.....................12, 17, 32, 34, 45, 58, 60, 62, 63 MINNESOTA.....
...................9 TEXAS................................................6, 31, 42 UTAH....
............11, 14, 39, 60 WISCONSIN.............................
.............. ..............30, 13
1. ADVERSE POSSESSION-Permission.-A prescriptive title cannot be founded upon use and occupation which is not adverese to the title of the owner, but which is under permission of such owner.-DAVIS V. DEVANNEY, Idaho, 65 Pac. Rep. 500.
ADVERSE POSSESSION-Passways – Title by Prescription.-To acquire the right to a passway by prescription, it must appear that it has been claimed as a matter of right, and not by permission merely, for at least 15 years.-ABELL V. PAYNE, Ky., 62 S. W. Rep. 880.
3. ADVERSE POSSESSION- Passways – Title by Prescription.-As a guardian cannot acquire an interest hostile to his wards in their estate, it will be conclu. sively presumed that a passway which he opened over their lands for his and their convenience was permis. sive, merely, and that it so continued throughout the term of the guardianship.-PATTERSON V. GRIFFITH, Ky., 62 S. W. Rep. 884.
4. ADVERSE POSSESSION-Passways – Title by Pre. scription.- Where the right of the public to the use of a passway has become complete by adverse use, that right is not defeated by erecting obstructions which are removed by the public whenever it becomes necessary to use the passway; but there must, to de. feat the right, be an adverse holding for 15 years, or a voluntary abandonment of the use by the public.POTTS V. CLARK, Ky., 62 S. W. Rep. 884.
5. ASSIGNMENTS FOR CREDITORS-Refusal of Agsignee to Sue.-The fact that the assignee refuses to sue fora debt due the assignor does not entitle a creditor to subject the debt, the remedy being an action to com. pel the assignee to execute the trust.-WEST V. GRIBBEN, Ky., 62 8. W. Rep. 869
6. ATTORNEY AND CLIENT-Fees. - Where a claim was assigned to a bank on an agreement reserving one-fourth the amount of recovery thereon for an at. torney to be employed by the assignor, the bank was liable to other attorneys employed with its consent to assist the original under an agreement fixing their compensation at one-eighth the amount of recovery; the original attorney. bv agreement. receiving the same amount. – FIRST NAT. BANK OF DENISON V. HODGC8. Tex.. 62 S. W. Rep. 827.
7. ATTORNEY AND CLIENT – Services – Value - Evl. dence-Admissibility.-Where the attorney who op. posed plaintiff's assignor in the trial of a case stated to the jury all the facts on which he based the value of the assignor's legal services, but testified that he could not state their value without looking into his mind, an answer, after consideration, fixing the value was not objectionable as based on what was in the witness' mind, and not on the evidence.-ROCHE Y. BALDWIN, Cal., 65 Pac. Rep. 459.
8. BILLS AND NOTES-Holder for Value-Burden of Proof.- A suit on a promissory note payable to AB, agent, and by him sold, indorsed and delivered, before maturity and for a valuable consideration, can be maintained by the holder, and where the answer ad. mits the execution of the note, but denies that plaintiff is the owner by purchase before maturity for a con. sideration, and alleges want of consideration in the holder, the burden of proving such allegations is on him.--YATES V. SPOFFORD, Idaho, 65 Pac. Rep. 501.
9. BRIDGES-Ipjurieg-Measure of Damages.-Plaint. Iff bullt a bridge under a contract with the county obligating him to keep same in repair for a period of five years. The bridge having been injured by logs driven by defendant's servants, the county ordered plaintiff to rebuild and repair the same, on penalty of forfeiture of his bond, wbich he did. Held, that the injury resulting from the negligent driving of the logs was an injury to plaintiff, and not to the county, and hence plaintiff was entitled to maintain the suit against defendant for the damages so sustained.-OUE V. BRELAND, Miss., 29 South. Rep. 850.
10. CARRIERS-Injury to Passenger-Negligence-Res Ipsa Loquitur.-Where it is shown that an injury to a passenger was caused by the act of the carrier in op. erating the instrumentalities employed in his busi. ness, there is a presumption of negligence, which throws on the carrier the burden of showing that the injury was sustained without any negligence on, his part; and hence a verdict for plaintiff for injuries against a street rullroad will not be reversed because the evidence fails to show that the rate of speed of the car at the time of the accident was excessive, or that the excessive rate of speed or other negligence of de. tendant was the proximate cause of the ipiury, since it is sufficient that it fails to show that it was not 80.BASSETT V. LOS ANGELES TRACTION CO., Cal., 65 Pac. Rep. 471.
11. CARRIERS OF PASSENGERS - Collisiong - Passen. gerg-Expert Witnesses and Testimony.-A physician, after testifying to his professional qualifications, tes. titled, without objection, respecting the plaintiff's injuries, disease, and condition, it was not an abuse of discretion to permit him to give his opinion as to what percentage of patients with such affliction ultimately recover their health. Such evidence was ad. missible, since it had a direct bearing on the perma. nency of the disease which plaintiff claimed resulted from the injurieg.-BUDD V. SALT LAKE CITY R. Co., Utah, 65 Pac. Rep. 486.
12. CONFLICT OF LAWS-Llability of Wife-Law of Domicile.-It by Missouri law a wife may bind herself for a debt of her husband, and if a wife while residing in Missouri does so bind herself, the obligation will be enforced against her after she becomes a resident of this state. Capacity to become obligated on promis. sory notes is tested by the law of the domicile, not by the law of the place where the notes are payable. BAER V. TERBY, La., 29 South. Rep. 886.
13. CONTRACT-Building-Damages for Failure to Complete Building by Time Fixed.-Where a building contract stipulated that the building should be completed by January 1st, and that the contractors should pay $20 per day for each day it might remain unfinished after that time, and the building was not fully completed until the 1st of July, the owners were not entitled to the stipulated damages for the full time, as part of the building was completed, and was occupied by the tenants of the owners, long before the 1st of July; and, under all the circumstances, the damoges will be fixed at a little more than one-third of the stipulated amount.-WHITEHEAD V. BROTHERS LODGE, 1.0.0. F., NO. 32, Ky., 62 S. W. Rep. 873.
14. COUNTIES-County Warranty-Validity-Interest. -Sess. Lawg 1896. p. 178, ch. 64, validated debts which counties had contracted in excess of the limit of indebtedness. Chapter 131, § 59, provided that county warrants should bear 5 per cent. interest from the time of presentation till paid. Held, that a county warrant issued prior to 1896, and void ag in excess of the debt limit, and also containing an invalid provis. ion for the payment of 8 per cent. interest, though interest on county warrants was not then authorized, was only validated by chapter 64 as to the principal, and not as to the interest, and hence the bolder thereol was only entitled to 5 per cent. interest from the time chapter 131 went into effect.-MCINTOSH V. SALT LAKE CO., Utah, 65 Pac. Rep. 483.
15. COUNTIES-Removal of County Commissioner from Office.- When proceedings under section 7459, Rev. St., are brought to remove a county officer, and the court finds that such officer acted honestly in mak. ing such charges against his county, and honestly believed at the time he presented his claim for allow. ance, and when he collected the same, that such charges were legal, it is error to remove him from office, and enter judgment against him for the penalty provided by said section.-PONTING V. ISAMAN, Idaho, 65 Pac. Rep. 434.
16. CRIMINAL LAW-Contempt-Right to Make Ex: planation before Ipfliction of Punishment.-Code, $ 4465, allows one accused of contempt to make, at his option, & written explanation thereof under oath. Held, that where one's guilt is unquestioned, and where he advised the court in unmistakable language that he was ready for punishment if the judge was dig. posed to inflict it, it is not necessary that an oppor. tunity be given for such written explanation before punishment was inflicted.-HARDIN V. SILVARI, Iowa, 86 N. W. Rep. 223.
17. CRIMINAL LAW-Information-Amendment-Sur. prise.-W bere, pending a trial of a person for larcopy, the information is amended by substituting therein the name of a husband for that of his wife as the owner of the property stolen, and both before and after the amendment both husband and wife were ex. amined as witnesses, and the accused made po effort to have the trial postponed, nor availed himself of the presence of the spouses on the stand as witnesses to negative the ownership as laid in the amended infor. mation, he is properly refused a new trial, based upon & claim that he was surprised by the amendment, and that he could disprove by the wife, as newly.discov. ered testimony, that the property was her parapherDal property.-STATE V. BRIGHT, La., 23 South. Rep. 993.
18. CRIMINAL LAW-Instructiong-Credibility of De. lendant.--An instruction to the jury in a criminal prosecution in the following language is held erro. neous and prejudicial to defendant, viz.: “You will not allow yourselves to be imposed upon, nor led into the belief of unreasonable stories on the part of either the prosecution or of the defense. You must bear in mind the tendency on the part of the guilty, when ac. cused of crime, to fabricate some story or stories whicb they think may effect their acquittal."-STATE V. HOY, Minn.,86 N. W. Rep. 98.
19. CRIMINAL LAW-Sentence-Validity.-In a prose. cution upon an information containing a number of counts, and where the verdiot returned finds the de. fendant guilty of several of the offenses charged, the court should pronounce a single judgment, imposing the full measure of punishment to be imposed for all such offenses. A judgment regularly rendered on one of the offenses included in the verdict, and which has been executed in part by the imprisonment of the
defendant, is the end of the prosecution, and exbausts the power of the court in the case; and the action of the court in bringing in the defendant several years after the rendition of the judgment, and sentencing him again upon the remaining offenses embraced in the verdict, is wbolly without authority.-IN RE BECK, Kan., 64 Pac. Rep. 971.
20. DEED-Description-Extrinsic Evidence to Ex. plain Latent Ambiguity.-Where the description of land in a title bond called for "the points of a cliff as a corner, and "thence with the cliff," it appearing that the cliff forked at the point indicated, extrinsic evi. dence was admissible to show which fork of the cliff was intended; the ambiguity being a latent one.HALL V. CONLEE, Ky., 62 S. W. Rep. 899.
21. DETINU E-Claim of Third Party-Time of Making. -Under the statute authorizing the interposition of a claim and the trial to the right of property by claim. ant in actions of detinue (Code 1896, § 1484), such claim can be interposed only where there has been a prelim. ipary seizure of the property before trial and judg. ment in such detipue suit, and after the rendition of judgment no claim to the property can be interposed under the statute.-MCGLATHERY V. WILLIAMS, Ala., 29 South, Rep. 858.
22. ELECTIONS-Qualifications of Voters.-A consti. tutional provision which provides that "for the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while kept at any almshouse or other asylum at public expense," preserves the voting status of the inmates of a soldiers' home at the time of the entry thereto, and such inmates cannot acquire, by reason of their presence in such soldiers' home, and while kept at public expense, the right to vote in the county and precinct in which such institution is located.POWELL V. SPACKMAN, Idaho, 65 Pac. Rep. 503.
23. EMINENT DOMAIN-Condemnation of Property Failure of Statute to Prescribe Course of Procedure.Ky. St. § 2852, part of charter of cities of the first class, which provides that the board of park commissioners may order the condemnation of, properiy, is valid. though the course of procedure is not prescribed fur. ther than to require that the proceeding shall be in. stituted by the filing of a petition; the court having power to regulate the additional procedure according to the course of the common law.-BOARD OF PARK COMRS. OF LOUISVILLE V. DU PONT, Ky., 62 S. W. Rep. 891.
24. EQUITY-Deeds - Unauthorized Clause - Correc tion.-Where a contract of exchange provided that a warranty deed given thereunder was to be subject to an incumbrance, and the notary, without the knowledge or authority of the grantee, added in the deed. "wbich the grantee assumes and agrees to pay," the deed will be corrected in so far as it imposes on the grantee the assumption to pay said indebtedness. -JONES V. PRICE, Iowa, 86 N. W. Rep. 219.
25. EXECUTORS AND ADMINISTRATORS-Distribution by Executor Under Judgment Subsequently Reversed. - Where the mother of illegitimate children allowed the father to have their services until they reached their majority, in consideration of his agreement to bring them up, and to provide a home for her at his death, neither ber claim under the contract nor the claims of the children under an agreement by which they worked for the father after arriving at age and permitting him to hold their wages for them are preferred claims against his estate after his death. STORY V. STORY, Ky., 62 S. W. Rep. 865.
26. EXECUTORS AND ADMINISTRATORS — Executor's Commissions-Attorney's Fees.-The widow of a tes. tor, as executrix and life-tenant, made a contract with a corporation which was entitled to the estate as devisee in remainder, by which she transferred to it the estate in consideration of its agreement to pay her an annuity; the contract stipulating that she was to first pay off all existing debts of the estate, and make a full statement of her accounts by a certain time, and that the transfer was made subject to "attorney's fees and costs of settlements." A disagreement having arisen as to the amount to be turned over, the executrix brought suit for a settlement of that matter. Held, that plaintiff is entitled to commissions as executrix, and also to a reasonable attorney's fee for bringin the guit.-CRUTCHER'S EXECUTRIX V. BOARD OF MIS. SIONS OF METHODIST EPISCOPAL CHURCH SOUTH, Ky., 62 8. W. Rep. 895.
27. FIRE INSURANCE-Forfeiture- Subsequent Legis. lation.-A fire policy being already forfeited under a condition thereof by occupation by a tenant, the rights of the parties are not affected by the subse. quent enactment of Code, $ 1743, providing that a con. dition in a policy making it void before the loss oc. curs shall not prevent a recovery thereon, if it be shown that the failure to observe the condition did not contribute to the logg.-ELLIOTT V. FARMERS' INS. Co., Iowa, 86 N. W. Rep. 224.
28. FRAUDULENT CONVEYANCE – Husband's Declara. tions as Evidence Against Wife.- Where the bus. band's creditors were seeking, in an action against the husband and wife jointly, to subject property in the wife's name on the ground that it had been paid for by the husband, the husband's declarations tending to show his interest were competent as evidence against the wife.-PULLINS V. PULLINS, Ky., 62 S. W. Rep. 865.
29. GUARDIAN AND WARD-Mortgage of Ward's Prop. erty-Purpose.-Under Code Civ. Proc. $ 1578, provid. Ing that the property of a minor may be mortgaged to pay or renew a lien thereon, where there are several minors owning undivided interests in the same prop. erty, each subject to a lien, the interest of each minor cannot be mortgaged to secure the aggregate of all their debts, but each must be bound only for his part thereof.--HOWARD V. BRYAN, Cal., 63 Pac. Rep. 462,
30. HIGHWAYS-Collision-Bicycles.-Plaintiff, while crossing a street at a crossing was injured by being run into by defendant on a bicycle. The accident occurred at night, and plaintiff, who was oarrying an open umbrella, did not look up and down the street before attempting to cross. A witness testified that he was 75 or 100 feet away, but saw both plaintiff and defendant just before the accident; and defendant testified that a arc light was at the place, and that he saw the plaintiff when within 60 or 65 feet of him. Held, in an action for the injuries received, that a special finding that the plaintiff could not, by the exercise of ordinary care, under the circumstances, have seen the defendant in time to have avoided the col. lision, was not supported.-MILLS V. CONLEY, Wis., 86 N. W. Rep. 203.
31. HOMESTEAD-Liens-Validity. - Where the pur chaser of realty pays the purchase price, and then borrows from the vendor, who retains a lien in the deed for the borrowed money, the purchaser does not acquire title by such payment, and by making slight and inconsiderable improvements, so as to defeat such lien by a claim of homestead.-JONES V. MALE, Tex., 62 S. W. Rep. 827.
32. HUSBAND AND WIFE-Community Estate-Rights of Widow.One who occupies the position of widow in community and sole heir ab intestato has such an in. terest in the property of the community which had existed between her deceased husband and hersell as to entitle her in default of the appointment of any one charged with that duty, to invoke the aid of the court for its preservation. - BARBER V. WATSON, La., 29 South. Rep. 889.
33. HUSBAND AND WIFE-Necessaries – Payment of Interest on Mortgage Debt at Wife's Request.-Under Gen. Stat. ch. 52, art. 2, $ 2, declaring that the wife's real estate shall be liable for debts contracted on ac. count of “necessaries," the wife's real estate cannot be subjected to the payment of a pote executed by her and her husband for money advanced by plaintiff
at their request to pay interest on a debt secured by mortgage on a dwelling house owned by the wite, as it does not appear that the wite owed the mortgage debt, or that gbe or her family occupied or intended to oc. cupy the mortgaged dwelling house; she having ample estate outside of that for their support.-WATTS v. TURNER, Ky., 628. W. Rep. 878. .
34. HUSBAND AND WIFE- Property Rigbts-Dation en Paiement-Simulation.-The wife received amounts, made crops, and realized revenues on her separate property, for which her husband, by using same, became liable. The testimony does not prove that the husband made no revenues, and tbat the result of his exertions did not go to the support of the family. In the absence of that proof, the amount required is not deducted from her separate right, in order thereby to reduce them to nil, and give rise to the conclusion that the wife has no separate right, as the whole amount went to the support of the family.-LEHMAN V. COULON, La., 29 South. Rep. 879.
35. INJONCTION-Pendente Lite.-A court of equity cap, in the proper exerciselof its jurisdiction, enforc and preserve property or rights in issue in statu quo until the hearing on the merits, and, in order to sus. tain an injunction for the protection of property pen. dente lite, it is not necessary for the court to decide in favor of the complainants upon the merits, or that he should present such a case as will certainly entitle him to a decree upon the final hearing: but, in order to support such an injunction, the court must be sat. istied that the complainant certainly has & right as to the existence of which there is a substantial ques tion to be decided, and that without the interim interference, such right would probably be lost or de. stroyed.--COXE V. HUNTSVILLE GASLIGHT CO., Ala., 29 South. Rep. 868.
36. INJUNCTION-Title to Realty-Right of Possession Under Contract.-Where a complaint in an application for an injunction stated that plaintiff was the owner of a right to pump water from a certain well, and that defendants had prevented, and threatened to continue to prevent, plaintiff from so pumping water, but there was no allegation that plaintiff was, or defendant was not, in possession of the property, plaintiff was not entitled to an ex parte injunction en forcing its alleged right to the property since it would operate to change the possession of property, which is not the proper function of a preliminary injunction. -SAN ANTONIO WATER Co. v. BODENHAMER & SIERRA WATER & POWER CO., Cal., 65 Pac. Rep. 471.
37. INSURANCE-Separate Contracts - Void as to Realty and Valid as to Personalty.-Where the insur. ance of personal property was evidenced by a paper attached to a policy previously issued on real estate, a breach of condition as to title, rendering vold the original policy, did not affect the insurance on the personal estate, the contracts being separate.-CONTINENTAL INS. CO. V. GARDNER, Ky., 62 8. W. Rep. 886.
38. INTOXICATING LIQUORS — Illegal Sale-Evidence, -On a trial under an indictment for selling spirituous, vinous, or malt liquors without a license, and contrary to law, where the evidence for the state connect. ing the defendant with the commission of the offense was circumstantial, and tended to show that the sale was made in the room of another person, testimony going to show that in said room liquors were kept and controlled by the defendant, and jointly with said other person, and that on the occasion when whisky was being sold by said other person in the defendant's presence the defendant was assisting him, and was personally concerned in the disposition of the liquor, is competent and admissible in evidence. In such a case it is not prejudicial to the defendant to allow a witness, upon his examination, to deny that he testified before the grand jury to having seen whisky bought in the house where the defendant was ar. rested, and where the evidence for the state tended to show the selling of the whisky complained of oc curred.-WRIGHT v. STATE, Ala., 29 South. Rep. 864.
39. INVESTMENT BY GUARDIAN - Order of Court.-A constructed and operated as to render it reasonably guardian, without authority of the court, purchased safe for those whose employment necessitates their real estate with the money of his ward. The value of going upon such road and performing service in contbe real estate bad somewhat depreciated wben the nection with the same.-LYNN V. ANTRIM LUMBER CO., ward became of age, and it was shown that during the La., 29 South. Rep. 874. ward's infancy money could be safely loaned at 10 per 46. MASTER AND SERVANT - Servant's Acts-Master's cent. per annum. Held, that the ward was entitled to
Liability.-Plaintiff was arrested by the captain of de. recover from the guardian the amount invested by
fendant's steamboat, and chained to a post on the him in the house, with 10 per cent. interest, com. lower deck, and ejected before he reached his destipa. pounded annually.-SCHEIB V. THOMPSON, Utah, 65
tion. The court charged that plaintiff could recover Pac. Rep. 499.
only the actual damages suffered by him, unless de. 40. JUDGMENT-Action to Set Aside-Laches.- Where tendant authorized the acts complained of, or par. defendants, against whom judgment was obtained ticipated therein or ratified them; and that the jury without service of the summons, and who did not should not allow anything by way of punishing the learn of the action until some time after their prop. defendant, unless it authorized the captain's acts or erty was gold thereunder, commenced an action to ratified them; and that, unless defendant participated set aside the return of service of the summons and in or authorized the captain's acts or ratified them, subsequent proceedings within 10 months after the the measure of damages would be the amount which sale, and before any subsequent change in the prop would compensate the plaintiff for all detriment erty occurred, they were not guilty of laches. Where proximately caused by the wrongful acts. Held, that property was sold under a judgment obtained with the instructions were not erroneous as contradictory out jurisdiction, the fact that the purchaser redet med and too general.-TRABING V. CALIFORNIA NAV. & IMP. the property from a tax sale is no defense to an action CO., Cal., 66 Pac. Rep. 478. to set aside such judgment and proceedings.-KEELI
47. MORTGAGE-Foreclosure - Assigoment.-Where, V. EAST SIDE IMP. Co., Colo., 65 Pac. Rep. 457.
during the pendency of foreclosure proceedings, the 41. LANDLORD AND TENANT – Forcible Entry and De mortgage was assigned, and the assignee was substi. tainer-Tenants in Common.-H and plaintiff owned tuted as plaintiff by order of court, but the original land as tenants in common, which adjoined the de. mortgagee was retained as a party plaintiff, the de. lendant's right of way, and H gave defendant an op. cree of foreclosure providing that the original mort. tion to purchase his interest. Defendant entered on gagee take nothing, but that the amount recovered the land, and began removing dirt to build a track on was due the assignee, the retention of the original its adjoining rigbt of way, and plaintiff brought forci. mortgagee as a party plaintiff, though erroneous, was ble entry and detainer against both H and defendant. harmless, and not cause for reversal.-ORANGE GROW. Subsequently I deeded his interest to defendant. The ERS' BANK V. DUNCAN, Cal., 65 Pae. Rep. 469. court entered an order compelling defendant to re.
48. MONICIPAL CORPORATION8-City Treasurer-Pay. move not only from the land in controversy, but also
ment of Claim-Effect of Judgment.-Where judgment from its original right of way. Held, that it was not
bad been rendered for plaintiff in an action against a error to modify the order by contining it to the land
city treasurer and board of trustees to compel pay. in controversy.-CAGWIN V. CHICAGO & N. W. Ry. Co.,
ment of a claim against the city, such judgment was Iowa, 86 N. W. Rep. 220.
sufficient to justify the treasurer in paying the claim, 12. LIFE INSURANCE – Anssignment - Husband and though the trustees refused to approve it, or issue a Wife.-An insurance policy was issued in favor of the warrant thereon.-PRESNO CANAL & IRRIGATION CO. v. wife of the insured if living at the time of his death, MCKENZIE, Cal., 65 Pac. Rep. 473. aad, it not living, then to his children. The insured
49. PARTNERSHIP-Compensation of Partner for Per. and his wife assigned the policy to plaintiff as col
gopal Service.-The surviving partner cannot comlateral. The wife died before her husband. After the
plain of the refusal of the court to allow him more wife's death, a tontine dividend accrued on the pol.
than $2,000 for his personal services for the three years icy. Held, that the wite's death defeated the assign.
he continued the business, the general rule being that ment and all rights predicated thereon, including the
neither partner is entitled to compensation for his dividend.STEVENS V. GERMANIA LIFE IN8. Co., Tex..
services unless the articles so provide; and whether 6. 8. W. Rep. 824.
this case is an exceptional one it is not necessary to 3. MASTER AND SERVANT — Dangerous Machinery. decide, and the administrator and heirs of the de. Where the evidence in an action for an injury to a ceased partner do not complain of the allowance servant alleged to have been caused by a defective made.-BARBER'S ADMX. V. MORPHY'S ADMR., Ky., 62 machine shows that defendant was not negligent, un. 8. W. Rep. 894. less he had actual knowledge of the alleged defect, 50. PARTNERSHIP-Settlement-Surviving Partner.ad there is a finding in a special verdict that the de. A deceased partner's will provided that the business tendant did not have such knowledge, judgment of the firm should be settled gradually, so as to not inshould be rendered in favor of the defendant.-GROTH jure the estate or prejudice the surviving partner. T. TROXANN. Wis., 86 N. W. Rep. 178
There was no evidence that the deceased's executorg 44. MASTER AND SERVANT-Fellow-Servants.- Where,
or legates were dissatisfied with the management of in an action against a railroad company for injury to
the estate. Held, that a delay of five years in the set. & brakeman by being thrown from a car by the en.
tlement of the firm affairs by the surviving partner gineer negligently and suddenly stopping the train,
did not justify an order directing the deceased's ex. the injury happened in a state where the common law
ecutors to sell the deceased's interest in the firm. The relating to fellow.servants had not been changed by
fact that a surviving partner bid on the deceased part. statate, the plaintiff could not recover, since the en.
per's interest when it was offered for sale by the de. gideer and brakeman were fellow.servants, and one ceased's executors did not constitute a waiver of the could bave no cause of action against the master for
surviving partner's right to settle the firm busipegg. the negligence of the other.-BREWSTER V. CHICAGO IN RE AUERBACH'S ESTATE, Utah, 65 Pac. Rep. 489. $N. W. Ry. Co., Iowa, 86 N. W. Rep. 221.
51. PAYMENT - Application - Evidence.-Defendant, 45. MASTER AND SERVANT-Injury to Employee-Care on making a payment to plaintiff on account, directed Required of Employer.-Although a logging railroad that the money should be applied to bills which had is not expected or required to be laid with the game been guarantied by his co defendant, and it was so ap. care and security, nor to be operated with the same plied. Subsequently defendant made other payments degree of prudence, as is demanded in the copstruc. to a bank to take up sight drafts drawn by plaintiff. tion and operation of railway tracks in use by com Plaintiff received but one letter containing directions mon carriers, nevertheless such road should be so l as to the application of payments, and the subsequent
payments were applied on upguarantied bills, and a suit instituted on a balance due on those guarantied. Held, that the evidence was not sufficient to justify the direction of a verdict for defendant, since the question whether there was an application of pay. ments as claimed by defendant was for the jury.BISHOP V. HART, Iowa, 86 N. W. Rep. 218.
52. PLEADING AND PRACTICE-Amendment-Conver. sion.-In an action brought for a conversion of certain cattle, and in the trial of which it appears that the defendant did not in fact sell the cattle in question, but that they were sold by another under the direction of defendant, who knowingly received the proceeds of sale, and converted the same, it is not error for the district court, before another trial of the cause is had, to permit the plaintiff to so amend his petition as to charge defendant with a conversion of the proceeds of such sale.-EMPORIA NAT. BANK V. LAYFETH, Kan., 64 Pac. Rep. 973.
53. PLEADING AND PRACTICE-Bill of Review-NewlyDiscovered Evidence. To sustain a bill of review on the ground of pewly discovered evidence, it must not only appear that the additional evidence was not known at the time of the former hearing, and could not have been ascertained by the exercise of proper diligence, but the newly discovered evidence, with the other evidence already in the case, must entitle the complainant to a decree different from, and more ben. eficial to the complainant in the bill of review than the one rendered in the original case.-ALLGOOD V. BANK OF PIEDMONT, Ala., 29 South. Rep. 855.
54. PRINCIPAL AND AGENT-Accounting-Illegality.An agent intrusted with money to purchase property at a judicial sale under an agreement which had for one of its objects the suppression of competition at the sale, and who executes the agreement by making the purchase, cannot withhold a surplus portion of the fund placed in his hands on the ground that the agreement by which he obtained it was illegal, as against public policy, but must account for it to his principal.-HARDY V. JONE8, Kan., 64 Pac. Rep. 969.
55. PRINCIPAL AND SURETY-Joint Bond Executed by Separate Purchasers.- Where the several purchasers of horses sold by a commissioner executed a joint bond for the aggregate price, each sale being reported by the commissioner ag & separate sale, each purchager was a principal in the bond for the amount of
urchase, but only a surety for the other pur. chasers as to the remainder of the bond.-BRIDGE. WATER V. ENGLAND, Ky., 62 S. W. Rep. 882.
66. REAL PROPERTY-Land Grants-Swamp Lands.Acting under the acts of the general assembly of Iowa granting swamp lands to the respective counties wherein situate, a county claiming a tract as a swamp land under the act of congress of September 28, 1850, granting swamp land to the several states, sold the land to a purchaser, who, after paying taxes thereon for several years, abandoned it; and plaintiff after. wards purchased it at a sale for delinqueut taxes. A railroad company claimed the tract as indemnity land under the act of congress of 1856 granting lands to aid the construction of certain railroads, and after plaint. iff took possession of the land the selection of the rail. road company was allowed, and the land certified to and accepted by the state as a railroad land by the in. terior department. Held, that the interior depart. ment had fullauthority to determine whether the land was swamp land, and did determine that it was not, by go certifying it to the state, and that, after accepting the land under such certificate, the state could not claim it as swamp land, nor could it give the right to another to make such claim.-YOUNG V. CHARNQUIST, Iowa, 86 N. W. Rep. 205.
57. SCHOOLS AND SCHOOL DISTRICT8--Value of Prop. erty-Award.-A county superintendent of public in. struction, in determining the proportion of the pres. eat value of a school house or other property justly dus a new school district formed out of territor
taken from another district, acts in a judicial or quasi: judicial capacity. After an award has been made by him, and the amount thereof paid by the old district,
his power is exhausted, and an allowance increasing |. the original award, made 15 months after the first de
termination, is void.-ROBINET V. SCHOOL DIST., Kan., 64 Pac. Rep. 970.
58. SUBROGATION-Payment of Mortgage Note.-One who, without interest as creditor, co.debtor, or heir, pays the mortgage note of another, acquires no sub. rogation to the rights of the creditor, unless it be ex. pressed and made at the same time as the payment. He has a claim for reimbursement against the party for whose benefit the payment was made, but only as ordinary creditor.-HUTCHINSON V. RICE, La., 29 South. Rep. 898.
59. SURETIES AND SURETYSHIP-Assignment of Debt to Surety.-A gurety may purchase the debt for which he is bound, and take an assignment thereof and of a mortgage by which it is secured, and maintain an actlon thereon against the principal.-WILKERSON F. TICHENOR, Ky.. 62 S. W. Rep. 869.
60. TAXATION-Local Assessment - Rights of Pur. chaser.- Where property is pursued in enforcement of a local assessment, to secure which the statute grants the first lien, it suffices to proceed contradictorily with the man in possession as owner, under recorded title translative of ownership. And the purchaser at the sale which follows acquires a good title by the adjudication; for it is a proceeding in rem,-one to enforce a real charge, a debt on the property, ifrespective of the person owning.-KELLY V. MENDEL SOHN, La., 29 South. Rep. 894.
61. TITLE IN GOODS SOLD-Assignment for Creditors. - Where defendant, prior to the making of an assiga ment by a brewing company for the benefit of credi ors, had purchased from the company and paid for $200 worth of beer, to be delivered to him in the usual course of business, but no packages had been set a part for him, the title to all the beer on hand at the time of the assignment passed to the assignee as between him and defendant.-STEIN BREWING CO.'S ASSIGNEE V. EBERHARD, Ky., 62 8. W. Rep. 881.
62. VENDOR AND PURCHASER-Immovable PropertyRedeemable Sales.-Redeemable sales of immovable property, unaccompanied by delivery of the thing sold, will be considered, as between the parties, in the absence of evidence to the contrary, as mere contracts of security, and the vendee out of possession may take his position equally with the vendor.-MARBU V. COLBERT, La., 29 South. Rep. 871.
63. VENDOR AND PURCHASER – Vendor's Lien - Par. chase of Property.-The purchase, as such, of a sugarrefinery outfit and plant, who assumes payment of claims secured by vendor's lien upon the machinery, bas no greater right to contest and repudiate such claims than his vendors had.-WOODS V. CARENCRO SUGAR-MFG. Co., La., 29 South. Rep. 888.
64. WILL – Mental Capacity. – A person who is rational may dispose of his property according to a fixed purpose of his own, although such purpose, ac cording to the notions of other persons, might be irrational; and therefore it was error to instruct the jury to find the paper in contest not to be the last will of the decedent if they believe she was under such defect of reason or mental weakness that she did not know the natural objects of her bounty or the character and value of her estate, and was pot able to make a rational survey of the game, "and dispose of it in & rational manner,” according to a fixed purpose of her own.-WARREN'S DEVISEES V. O'CONNELL, Ky., 62 S. W. Rep. 890.
65. WILLS-Trusts-Charitable Bequests -- Capacity of Beneficiaries.-The fact that an unincorporated educational society receives a charitable devise, and thereafter becomes incorporated, does not defeat its right to the devise.-IN RE WINCHESTER'S ESTATE, Cal., 65 Pac. Rep. 475.