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6. CHATTEL MORTGAGE-Sales by Mortgagor-Assign. and competent.-STATE V. MILLER, Kan., 64 Pac. Rep. ment for Benefit of Creditors.-On July 25, 1895, D ex. 1033. ecuted a mortgage to F on astock of goods and fixt. 13, CRIMINAL LAW-Libel-Information.-Aninforma. ures to secure a debt of $1,000; and D, with consent of tion for publishing a libel not defamatory per se, and F, continued selling the goods and replacing them not averring that such publication tended to provoke with a new stock, and using the proceeds as he saw the person libeled to wrath, is fatally defective.fit. Subsequently the goods and fixtures were sold STATE V. ELLIOTT, Kan., 64 Pac. Rep. 1027. under attachment, and $426 received for the fixtures 14. ELECTIONS-Canvassing Boards-Duties and Pow. was paid to F on July 28, 1896. On July 15, 1896, D filed
ers.-The object and purpose of the canvass made by a petition in insolvency, and plaintiff was appointed
guch board is to determine the result of the election assignee. Held, that the constructive fraud of D and
as shown by the official returns of such election, and Fin dealing with the mortgaged property did not ren.
not to determine judicially who received the most der the mortgage void as to plaintiff, and, in the ab.
votes in fact. In case the official returns do not truly sence of actual fraud, plaintiff was not entitled to any
recite the votes as cast, the remedy provided for those of the funds as against F.-BRODERICK V. RICHARD. who are aggrieved is by contesting the election.-STATE SON, N. H., 49 Atl. Rep. 92.
V. MACKENZIE, N. Dak., 86 N. W. Rep. 231. 7. CHATTEL MORTGAGE-Validity-Change of Posses. 15. FRAUD-Damages-Purchase on Joint Account.sion.-Plaintiff took a mortgage on a stock of gro
Defendant, having been made the depositary of ceries belonging to D's wife. Dbad been conducting
plaintiff's money, proposed that they should jointly the business for his wife, and plaintiff agreed that he
purchase land, to which plaintiff assented; and de. should continue to do so, and that the mortgage
tendant made a purchase, using plaintiff's money should not be recorded. Held, that the mortgage was therein, representing that the price was $10 per acre, void as to third parties.-LEHMAN-HIGGINSON GROCER when it was but $5 per acre, and taking title in him. Co. v. MCLAIN, Kan., 64 Pac. Rep. 1029.
sell. Afterwards plaintiff's share, on the basis of a 8. CHATTEL MORTGAGE-Validity-Power of Mort. purchase at $10 per acre, was conveyed to him. Held, gagor to Sell.-A provision in a chattel mortgage that
that there was a fraud, rendering defendant liable for the mortgagor may remain in possession of the nort the difference between the price paid and that repregaged property,-the same being a stock of merchan. sented, though plaintiff realized from his land more dise,-and sell the same, turning over to a bank the
than $10 per acre.-JOHNSON V. CAVITT, Iowa, 86 N. W. proceeds of such sales until a debt due the bank was Rep. 256. paid, does not render the mortgage void. Neither 16. FRAUD-Pleading.-A mere general averment of does the mortgagee in such mortgage lose his lien be. fraud and illegality, without stating the facts upon cause the mortgagor fails to carry out such agree. which the charge is based, presents no issue, and is ment, but uses a portion of such proceeds in a manner demurrable for insufficiency.-LADD V. NISTOL, Kan., not provided in the mortgage, when the mortgagee 64 Pac. Rep. 986. had not consented to or permitted such misappropria.
17. FRAUD AND DESCENT – False Representations.tion.-ATCHISON SADDLERY CO. V. GRAY, Kap., 64 Pac.
A representation made to one person, with the inten: Rep. 988.
tion that it shall reach the ears of another, and be 9. CONTRACTS-Consideration.-In order to consti. acted upon by him, and which does reach him, and is tute a valuable consideration for a promise, neither
acted upon by him to his injury, gives the person so the benefit to the promisor nor the detriment to the
acting upon it the same right to redress as if it had promisee need be actual. It would be a detriment to
been made to him directly.-HENRY V. DENNIS, Me.. the promisee, in a legal sense, if he, at the request of
49 Atl. Rep. 58. the promisor, and upon the strength of his promise, 18. FRAUDULENT CONVEYANCE – Creditors.-Defend. performed any act which occasioned him the slightest ant was engaged in the millinery business in partner. trouble or inconvenience, and which he was not ship with her sister, and she also conducted a like obliged to perform.-BIGELOW v. BIGELOW, Me., 49 business individually in another city. Attachments Atl. Rep. 49.
were levied on the firm stock, and defendant immedi. 10. CORPORATIONS-Directors - Individual Liability
ately executed a billof sale of her stock to her brother for Debts.-Pub. St. ch. 150, 4, declares that no cor
for the express consideration of $2,500, and telegraphed poration except banks and insurance companies shall
him what she had done. There had been no previous
correspondence as to such sale, but he at once started contracts debts exceeding one-half the value of its
for the place where the store was, and took possession property; and section 5 provides that, for a violation of such act by a vote of its officers, the directors shall
of the stock. She was indebted to him on a note for thereby become individually liable, to the amount of
$900, which he turned over to her. He gave her $400 in the excess, for the debts and contracts then existing,
cash, and the balance was made up by his notes. The or contracted while they remain in office. Held, that
transfer of the cash was made in the presence of a on violating such acts the directors became liable as
third party, because the brother, as he stated, wanted
a witness. On taking possession of the store, he gureties for the corporation, and creditors were en
posted signs therein to the effect that the stock be. titled to sue the directors as sureties, independent of
longed to him. No invoice was made of the stock, their rights of action against the corporation.-SWAN
The brother had never seen it before, and he knew V. BURNHAM, N. H., 49 Atl. Rep. 93.
nothing of the millinery business, his occupation be11. CORPORATIONS-Ultra Vires-Estoppel.-Where a ing that of a common laborer, but he testified that mutual fire insurance company, the articles of incor. some months previously he had endeavored to buy poration of which provide that it shall ipsure only the stock. Held, that the conveyance to him was town or city property, insures country property, re void.-ROSENHEIM V. FLANDERS, Iowa, 86 N. W. Rep. ceiving and accepting the premiums therefor, and 293. levies and collects assessments thereafter, such com
19. GARNISHMENT-Detective Service-Payment by pany is estopped to plead ultra vires in an action on
Garnishee.-Rev. St. 1898, $2756, provides that garthe policy.-GARNER V. MUTUAL FIRE INS. Co., Iowa,
pishee summops shall be served on the pripcipal de86 N. W. Rep. 289.
fendant or his attorney within 10 days after service on 12. CRIMINAL EVIDENCE-Intoxicating Liquors-Un the garnisbee, and unless the garnishee summons be lawful Sales.-The fact that bottles, glasses, liquors, so served, or the proof of service show that, after due and other articles may have been taken by an officer diligence, such service cannot be made within the free from the possession of the defendant id an unau. state, the service on the garnishee shall become void thorized search of his premises does not constitute a and of no effect from the beginning. Held, that valid objection to the admissibility of such articles in where garnishee summons was not served as provided evidence against him, if they are otherwise pertinent | by the statute, and the proof of service on the gar
nishee did not show that after due diligence such service could not be made within the state, a payment by garnisbees to the principal defendant, prior to any motion to amend the return of the sheriff, discharged them from liability on the garnishment.--SMITH, THORNDIKE & BROWN Co. v. MUTUAL FIRE INS. CO., Wis., 86 N. W. Rep. 241.
20. GUARDIAN AND WARD-Guardian Ad Litem-Com. pensation.-Before his appointment as guerdian ad litem, an attorney agreed to accept such appointment in a proposed guit, and conduct the litigation therein for his wards, for a specified sum in the trial court and for a like sum in the supreme court on appeal. He received and receipted for the agreed sum after the trial. Thereafter the opposing attorney was changed, and the guardian ad litem's right to appeal wag op. posed, and the general guardian attempted to secure bis discharge, and opposed all his efforts in behalf of the wards. Held, that the compensation of the guardian ad litem for services in the trial court was fixed by the agreement, but the circumstances of the appeal were so changed from those contemplated when the agreement was made that compensation should be awarded independent of the agreement.-RICHARD. SON V. TYSON, Wis., 86 N. W. Rep. 250.
21. HIGHWAYS-Deeds.-A deed conveying land for a street to a city "to have and to hold to the same ex. tept and with the same effect as if the said street had been opened by a decree on proceedings bad for that purpose under the road laws of the commonwealth," gives the city the same power over the street, includ. ing the narrowing or vacating of It, as thougb it had been opened by adverse legal proceedings.- MORRIS V. CITY OF PHILADELPHIA, Pa., 49 Atl. Rep. 70.
22. HUSBAND AND WIFE-Deed of Trust in Anticipa. tion of Marriage.-A wife whose husband, just prior to the marriage, and without her knowledge, con. veyed his property to a trustee, to pay the income to him for life, ard after his death to convey the prop. erty to persons named, not including her, is not en. titled to have the deed of trust set aside, so that man. agement of the property may be restored to the hug. band, though after his death she may have it an. nalled, that she may take a sbare in the property.POTTER V. FIDELITY INS., TRUST & SAFE-DEPOSIT Co., Pa., 49 Atl. Rep. 86.
23. HUSBAND AND WIFE-Release of Dower Interest. -A release by the husband to the wife, during coverture, of all his right, title, and interest in dower, or rigbt and interest by descent, in her real estate, and of all claim he may have in her personal estate at her decease: by allowance or otherwise, is not a “pecu. Diary provision" for her, within the meaning of Rev. St. ch. 103, $$ 8,9; and her release to him in considera. tion thereof, of her right and interest by descent in his real estate, is invalid.-PINKHAM V. PINKHAM, Me., 49 Atl. Rep. 48.
24. HOSBAND AND WIFE – Separation Agreement.The separate acknowledgment by the wife required by Act Feb. 24, 1770 (1 Smith's Law9, p. 307; Purd. Dig. p. 632, pl. 22), when she conveys her interest in real estate, is not necessary to an agreement of separation, to bar her right of dower.-IN RE KAISER'S ESTATE, Pa., 49 Atl, Rep. 79.
25, INSURANCE-Fidelity of Employees-IndemnityEvidence.- A fidelity company, insuring the honesty of a railway company's employees, was compelled to pay certain indemnity. It sued defendant as one of such employees to recover the amount so paid. Detendant denied the execution of the policy. The only proof thereof was a copy of the policy attached to a deposition of an officer of the railway company. Held, that a demurrer to the evidence was properly sug. tained.-FIDELITY & CASUALTY CO. OF NEW YORK V. YODER, Kan., 64 Pac. Rep. 1027.
26. IRRIGATION DISTRICTS - Directors - Authority, Suspension of Work.-Under Ballinger's Ann. Codes & St. $ 4176 (Sess. Laws 1890, p. 677, $ 11), providing that
directors of an irrigation district shall bave power to manage the affairs of the district, execute all neces. sary contracts, and generally perform all necessary acts, a board had authority to consent to the cessation of work on a ditch, where the contractor was to be paid from a sale of bonds, and sufficient funds had not been raised by such sales to meet payments due.DYER V. MIDDLE KITTITAS IRR. DIST. OF KITTITAS Co., Wash., 64 Pac. Rep. 1009.
27. JUDGMENTS — Fraud-Suit to Set Aside.-The fact that a judgment is obtained by means of perjured testimony is not sufficient to support a sult in equity to set it aside on the ground of fraud.-STEEN V. MARCH, Cal., 64 Pac. Rep. 994.
28. JUDGMENT-Vacating.-The court should not vacate a judgment on an application made upder gub. division 3 of section 568 of the Civil Code until the party applying therefor, if he be the defendant, shall have set up a defense to the action as provided in sec. tion 572. These two sections are to be construed to. gether, and it is error to vacate a judgment on such grounds until the defendant hag presented to the court a complete answer to the action upon which the judgment was rendered.-SCHULER V. FOWLER, Kan., 64 Pac. Rep. 1035.
29. LANDLORD AND TENANT – Repairs.-The plaintiff was injured by & defective stairway to & tenement leased by defendant to him. There was no evidence
the defendant knew of the existence of the defect. All that was visible or known to the defendant was visible to the plaintiff.-SHACKFORD V. COFFIN. Me., 49 Atl. Rep. 57.
30. LANDLORD AND TENANT-Taking Leased Property for Street-Liability of Lessee for Rents.-A city hay. ing given notice to a property owner-under Act April 21, 1855 (P. L. 266), authorizing it, on three months' notice, to open a street-that at the expiration of three months it would require certain of his land for a street, and he having served this notice on his lessees, and the property leased being of no value to them without the part claimed for a street, they may remove from the premises, without liability for rent after expiration of the three months, though the city does not then take possession; they being liable to be dispossessed at any time thereafter, and the owner being given by the act of 1855 an immediate remedy, on receipt of the notice, to obtain from the city full compensation for injury sustained.-UHLER V. COWEN, Pa., 49 Atl. Rep. 77.
31. LEASE-Right to Assign-Renewal.- A term lease of land, on which the lessee had erected a cottage, authorized him to terminate the lease and remove the cottage at any time, and authorized the sale of the house to be used on the premises, on the consent of the lessor, his heirs or assigns. The lease contained a covenant not to underlet, and all the rights thereunder were expressly granted to the lessee and his heirs, but no mention was made of his assigns. Held, to prohibit an assignment of the lease without the consent of the lessor.-UPTON V. HOSMER, N. H., 49 Atl. Rep. 96.
32. LIMITATION OF ACTIONS-Pleading-Amendment. -Though a cross complaint filed within the period of limitations was not signed by the attorneys until after the filing of a trial amendment, such amendmen lated back to the filing of the cross complaint, and the action was not barred by limitations.-ANTHONY INV. CO. V. ARNETT, Kan., 64 Pac. Rep. 1024.
33. MANDAMUS – Appeal - Dismissal.-Where, pend. ing an appeal from an order granting mandamus directing the transfer of bank stock, a receiver is appointed for the bank, and is discharged after showing a disposition of all the assets, the appeal will be dig. missed on the ground that the order has become in. capable of enforcement.-PARSONS V. TETIRICK, Kan., 64 Pac. Rep. 1028.
34. MASTER AND SERVANT - Injuries to Servant-Ap. pliances-Fellow-Servants.-Where a servant sued for
injuries sustained by reason of the slipping of a lad. der which was nailed to a roof by his fellow servants, and the negligence alleged was that the nails used were too short, but there was no evidence that other and suitable nails were not furnished, plaintiff baving testified that there was plenty of nails in such places, and that he had no doubt that there were other pails there, there was no evidence tending to show that de. fendant had not furnished proper appliances with which to conduct the work, and hence plaintiff was not entitled to recover.-MANNING V. MANCHESTER MILLS, N, H., 49 Atl. Rep. 91.
35. MORTGAGE-Foreclosure – Limitations.-A hus. band and wife jointly executed a note, and secured the game by a mortgage on real estate belonging to the wife. The note became barred as to the wife by the statute of limitations, but not as to the husband, he having made payments wbich tolled the statute. Held, that the mortgage could be foreclosed, and the wife's land sold to pay the judgment rendered against the husband.-JACKSON V. LONGWELL, Kan., 64 Pac. Rep. 991.
36. MORTGAGE- Minorg-Homestead-Foreclosure.A mortgage upon a homestead was executed by the father and mother of minor children to secure a note which they had given. Before the note matured, the father died intestate, and the mother and children continued to occupy the homestead. With the prod ucts of the homestead the mother made payments on the note, and kept it alive. No guardian was appointed for the children, and no payments on the note were expressly made for them. An action of foreclos. ure was brought more than five years after the ma. turity of the note, and the minor children claimed that the mortgage was barred as to them, and not en. forceable as against the undivided one-half of the mortgaged land which they had inherited. Held that, the debt having been kept alive, the mortgage ex. ecuted to secure its payment may be foreclosed against the whole of the land.-PERRY V. HORACK, Kan., 64 Pac. Rep. 990.
37. MORTGAGE-Recovery of Possession. A mort. gagee or the assignee of a mortgage may maintain a real action against a person in possession of the mort. gaged premises, and obtain a common-law judgment for possession, without the production of the notes referred to in the mortgage, or other evidence of the ex. istence of some portion of the mortgage indebtedness, except the mortgage itself, where there is no evidence to the contrary, and no circumstances from which a payment of the indebtedness may be inferred.-MORSE v. STAFFORD, Me., 49 Atl. Rep. 45.
38. PARTITION-Minors-Step Parent.-Where a land. owner dies leaving a wldow and minor children, and the widow and her second husband occupy and culti. vate the land and support the children, in a suit for partition after the children are of age the widow and her husband are chargeable with the value of the use of each child's interest during his minority, since the husband is not a tenant in common with the children, as he has no interest in the land.-PLANT V. FATE, Iowa, 86 N. W. Rep. 276.
39. PARTNERSHIP - Evidence - Verdict Improperly Directed.-Plaintiff contracted with defendant W to construct parts of a waterworks plant, the construc. tion of which W had undertaken for the consideration of a majority of the mortgage bonds and capital stock of the water company. Defendants Sand 0, after the making of plaintiff's contract, but before its completion, agreed to furnish W the necessary money to carry on the work, on the stock and bonds as security, and on the further agreement that when the work was finished, and Whad paid the money and interest loaned him, the stock and bonds were to be equally divided between defendants, W, S, and 0. Two receipts for stock and bonds, signed by O and given to W, setting out such agreement, were in evidence. Held, in an action against the three defendants on notes given by Win payment for plaintiff's work, that
the evidence tended to show a partnership, from the agreement for participation in profits, and it was er. ror for the court to ipetruct in favor of defendants.MOORE V. WILLIAMS, Tex., 62 S. W. Rep. 977.
40. PLEADING AND PRACTICE — Assignments-Sufi. ciency.-At a meeting of about 50 persons who had been working for the defendant company, all present agreed that plaintiff should present their claims; and plaintiff sued on his own claim and those of 45 others, and alleged that they were assigned to him, which defendant denied. Held, that the evidence of an assignment was not sufficient to justify a verdict in favor of plaintiff as assignee, under Code Civ. Proc. $ 1835, defining satisfactory evidence as that which ordinarily produces moral certainty or conviction in an unpreju. diced mind.-GUSTAFSON V. STOCKTON & T. C. R. Co., Cal., 64 Pac. Rep. 995.
41. PLEADING AND PRACTICE - Liability for Fires, Statute.-A count in a petition in an action for prop. erty destroyed by fire while in a railroad depot which alleges that defendant was negligent, in that the depot was insufficient and highly inflammable, and that the property was destroyed through the defendant's negligence, and that it caught from a spark negli. gently allowed to escape from defendant's locomo. tive, is detective, as combining an action for common. law negligence with a claim under Rev. St. 1899, $ 1111, making a railroad liable for fire set by sparks escap. ing from its locomotives.-BLACKMORE V. MISSOURI PAC. RY.Co., Mo., 62 S. W. Rep. 993.
42. PLEADING AND PRACTICE-Remark of Court-New Trial.-In an action against defendant by his children to recover the community interest of their deceased mother in $10,000, the plaintiffs testified to having seen and counted the money just before their mother's death; and defendant swore that they never had any such money. The trial court, without knowledge that he was heard by the jury, remarked that somebody was guilty of perjury, and that he would have them before the grand jury. Two jurors made affidavit that, on consideration of the case, one juror claimed that the court said that defendant was guilty of perjury, and that some of the jurors seemed prejudiced against defendant. Held, that it was error to deny defendant a new trial.-RIDDLE V. RIDDLE, Tex., 62 S. W. Rep. 970.
43. PUBLIC LANDS - Purchase - Forfeiture.-Act March 25, 1897, ch. 37, $ 1, provides that, if on Novem. ber let of any year any part of the interest due for public lands heretofore sold has not been paid, the land commissioner shall indorse on the obligation for said lands, “Lands forfelted,” and thereupon the lands shall thereby be forfeited to the state. Defendant made default in the payment of interest on a sum due for public lands, and the land commiesioner marked "Forfeited” on the file wrapper in which the papers concerning the land were kept in the land office, and also marked opposite the ledger account of such lands, "Forfeited," and the account in the treas. urer's office was marked “Forfeited," and thereafter the commissioner of the land office sold the lands to plaintiff. Held, that the action of the land commis. sioner in reselling the lands to plaintiff was not an ex. ercise of the state's right of rescission, since that right cannot be exercised until after the land has been de. clared forfeited by an indorsement on the obligation as prescribed by the statute.-COMANCHE COUNTT V. BRIGHTMAN, Tex., 62 S. W. Rep. 974.
44. RAILROADS-Injuries - Children-Trespassers.Instructions in an action for injuries to a child pre sented two theories of the case,--one that the child was a licensee; the other, that he was a trespasser. On the latter theory, the court instructed that it was not what defendant's employees could have seen, but what they did in fact see, of the child, and what they did on seeing him. Another instruetion stated that "'the employees, if they saw the child, must bave known It was too young to help himself." Held, that the instruction with regard to trespassers was not er.
roneous, as eliminating the question of what the em. sold in bulk, and because the price bid was small; ployees by ordinary care might have seen, since the there having been no bid when they were offered company owed no duty to trespassers, and the relaxa separately, and there being an adverse claim to the tion of this rule, in case of children, was provided for property under a sale on execution against the prior by other instructions.-THOMAS V. CHICAGO, M. & ST. title holder.-WILSON V. CORY, Iowa, 86 N. W. Rep. 289. P. Ry. Co., Iowa, 86 N. W. Rep. 259.
51. SCHOOLS AND SCHOOL DISTRICTS --Colleges-Tui. 45. REAL PROPERTY-Trespass to Try Title-Board of tion. A receipt of its own stock by a solvent college Land Commissioners.-Plaintiff in trespass to try title corporation in payment of a debt for tuition is a valid offered in evidence an order of the board of land com. payment, though it is invalid if made after the insoly. missioners of the county in which the land was sit. ency of the corporation.-ROACH V. BURGESS, Tex., unted which showed that the grantor of plaintiff's in. 62 S. W. Rep. 804. testate had been granted an unconditional certificate 52. SHIPPING-Negligence of Vegsel.-The American to the land by virtue of having purchased the condi.
barkentine Anita Berwind, loaded with coal, wag an. tional certificate at sheriff's sale, and also a deed of
chored near Port au Prince, in the bay of Hayti, the grantor conveying the property to plaintiff's in
under the direction of a government pilot. Alter. testate. Held, that the exclusion of the deed on the
wards the pilot came on board to move the vessel to ground that it did not show any title in the grantor to
another anchorage. On attempting to raise the anchor the unconditional certificate was erroneous, since the
It was found to be fouled with what was supposed to order of the board was suficient to show that the cer.
be a wire rope, but was in fact libelant's submarine tificate was sold to the grantor.-KARNES V. BUTLER,
telegraph cable, and in attempting to free the anchor Tex., 62 S. W. Rep. 950.
the cable was broken. The vessel had paver been in 46. RES JUDICATA - Laying Out Highways.--Com that port before, and the cable was not shown on its plainant songht to enjoin a township and its highway
chart of the bay. The libel charged that the breaking commissioner from entering his premises and con.
was negligent and intentional. Held, that the proof verting part thereof into a highway. Defendants an.
failed to support such allegations, the weight of evi. awered under oath, setting out the proceedings for
dence showing that the vessel was attempting to supthe laying out of such highway, and the award of dam.
port the cable, which had not been raised to the sur. ages. The record showed no filing of a replication
tace, by means of a chain while the anchor could be within the time allowed, and that the bill was dis
freed, and that the cable was probably broken across missed. Held res judicata in a subsequent suit by com
the edge of one of the anchor's palms, owing to the plainapt to prevent the township from opening the
straining of the vessel against it while the work was bighway, and removing his fences, and to compel
in progress.-TAE ANITA BERWIND, U. 8. D. C., E. D. restoration of the former road and fences.--SCHUL (Pepn.), 107 Fed. Rep. 721. MEISTER V. BLENDON TP., Mich., 86 N. W. Rep. 237.
53. SPECIFIC PERFORMANCE-Pleading-Complaint.17. SALES-Breach of Warranty- Damages.- Delend.
A complaint, in an action for specific performance,
which alleges & legal contract, part payment of the ant purchased ladies' gloves under a special warranty
consideration, the placing of the title papers in es. that, if they were not satisfactory or if they ripped,
crow, the tender of the balance of the consideration they should be returned to the plaintiff, who would
and its refusal, the hostile attitude of the one refusing furnish new ones. Five pairs were returned to de.
the money tendered, and the possession of the lands fendant by customers as not satisfactory, the defend. ant baving sold them to customers under a similar
by plaintiff since the date of the original contract,
states a cause of action. - GAMMON V. BUNNELL, warranty. The defendant sent the five pairs to the
Utah, 64 Pac. Rep. 958. plaintiff, who repaired them and sent them back to defendant, and he retained them without objection, 54. TAXATION-Curative Act – Constitutional Law.and again sold them. The customers returned other The legislature, subsequent to a void tax sale, at. gloves to defendant as not satisfactory, but he did not tempted to validate said attempted levy of county send them back to plaintiff, claiming it would be use. taxes. Chapter 99, Laws 1897, section 1 reads: "That less. Held, tbat the defendant could not counterclaim the levy of taxes as made in the various counties for bis damages by reason of a breach of the warranty as the year 1895 is hereby legalized and made valid for to gloves not returned by him.-JAMES V. BEKKEDAHL, all intents and purposes the same as if made in con. N. Dak., 86 N. W. Rep. 226.
formity to the law then in force." Held, that said act
of validation can operate only upon uncollected taxes 48. SALES – Conditional Order.-Where defendant
based on said levy. It does not purport to do more signed a written order to plaintiff for a harvester, and
than validate the levy. It does not undertake to delivered it to the plaintiff's agent under an oral
validate any tax sale, or to give effect to any void tax agreement that the order should not be delivered to
deed. If it did do so, the act would be unconstitu. plaintiff until defendant examined the machine, and,
tional. It is beyond legislative power to transfer if he was not then satisfied with it, he could counter
title to land by declaring that void deeds shall be mand the order, a charge that such agreement means
valid conveyances of title. The tax deed in question that the machine could not be objected to by defend.
is neither cured nor affected by the validating statute. ant unless it was, for a satisfactory reason, based on
-DEVER V. CORNWELL, N. Dak., 86 N. W. Rep. 227. some matters relating to the machine, and not simply the fact that he did not like it, is erroneous, since, if
55. TAXATION – Exemptions - St. Louis Mission defendapt was honestly dissatisfied with the machine School.- Under Act Jan. 30, 1863, incorporating a on inspection, he was not required to take it.- MCCOR mission free school of St. Louis, and exempting its MICK HARVESTING MACH. Cy. V.OKERSTROM, Iowa, 86 property from taxation to the extent of $50,000, and N. W. Rep. 284.
Const. art. 10, § 6, exempting lots of one acre and the 19. SALES-Delay – Damage – Release.- Where the
building thereon, when used for charitable purposes,
auch mission free school is not entitled to add the purchasers of goods requested further time in which to pay part of the purchase price, on the ground that
exemption of the constitution to that of the statute' the seller's delay in shipment seriously inconven.
but is liable for taxes on all the excess of its property ienced them, and the seller granted such time, this
over $50,000.-- STATE V. MISSION FREE SCHOOL, Mo., operated as a release and satisfaction of any claim for 62 8. W. Rep. 998. damages for such delay, estopping the purchaser from 5. TAXATION-School Tax-Amount of Levy.-The pleading damages therefor, as a cross demand against right of a school district to levy a tax, if it exists at the balance due on the purchase price.- ARKANSAS all, must be clearly found in the statute. If there be a CITY CANNING Co v. DUNSTON, Kan., 64 Pac. Rep. 1025. fair doubt as to its existence, it must be denied.
50. Sale-Execution-Adequacy of Price.-An execu. MARION & M. Ry. Co. V. ALEXANDER, Kan., 64 Pac. tion sale will not be held void because the lots were | Rep. 977.
65. VENDOR AND PURCHASER -- Rescission of SaleNote-Indorsement.-Rescission for the non-payment of the purchase price may be enforced if the parties to the sale can be placed in the same condition as they were, “as though the obligation had not existed." The test in a suit between the parties to the sale is the return to the purchaser of that portion of the price he has paid, if any, and his complete discharge as to the remainder, the unpaid portion of the price.-RAGSDALE V. RAGSDALE, La., 29 South. Rep. 906.
66. WATERS AND WATER COURSES - Dam - Flashboards.-Defendants conveyed to plaintiffs the right to maintain a dam, with flashboards two feet high on the top thereof, to be supported by iron pins not less tban four feet apart. Thereafter defendants conveyed to plaintiffs the additional right to maintain & three-foot flashboard, but nothing was specified as to the manner of constructing it, though iron pins four feet apart were insufficient to maintain it. Held, that plaintiffs could place the pins as near together as was necessary to support the flashboard, since the second conveyance carried with it the right to use the neces. sary means for the constrnction of an adequate flashboard of the height mentioned.-AMOSKEAG MFG. CO. V. SHIRLEY, N. H., 49 Atl. Rep. 91.
67. WATERS AND WATER COURSES – Eminent Domain -Dams-Flooding Lands.- Where a company floodIng lands disclaimed its right to flood the lands under the general flowage act in a suit by the landowner to assegs damages under guch act, and its right to flow the land under its charter is denied, the landholder's petition will be dismissed on the continued adherence of the company to this position, since the company has no flowage right, and the landowner must bring action for damages, or suit to abate the flow.MITCHELL V. UNION ELECTRIC CO., N. H., 49 Atl. Rep. 94.
67. TAXATION-Stock-Assessment for Bank Taxes.Where certain shares of the stock of a bank, which are above par, have escaped taxation, they are subject to an assessment for back taxes computed according to the actual, and not the par, value of such stock.BANK OF OXFORD V. BOARD OF SUPRS. OF LAFAYETTE Co., Miss., 29 South. Rep. 825.
58. TRADE-Unfair Competition-Injunction.-Unfair competition, which entitles complainant to an injunc. tion, is shown by proof that defendant sold to a repre. sentative of complainant bitters which it represented to be those of complainant, but which were not, but were an interior article, and that defendant also fur: pished to the purchaser at his request an empty bottle of complainant having its labels thereon.-HOSTETTER Co. v. WILLIAM SCHNEIDER WHOLESALE WINE & LIQUOR Co., U. S. C. C., E. D. (Mo.), 107 Fed. Rep. 705.
59. TRESPASS TO TRY TITLE.- Where, in an action of trespass to try title, plaintiffs show title to an undi. vided interest in the land, and defendant shows no title, plaintiffs are entitled to judgment, since a co. tenant is entitled to recover the entire tract, as against & trespasser..-WILCOXXON V. HOWARD, Tex., 62 S. W. Rep. 802.
60. TRUST8- Validity.-Grantor conveyed realty to trustees to hold to his sole use, and, whenever directed by him, to convey and deliver the same to persons he should direct, and to hold the proceeds received in ex. change therefor, to grantor's use. Held, that such trust being merely a trust to hold for the graptor's use, and not within the uses authorized by Civ. Code, § 857, was invalid. Where an attempted lile trust in certain property is void, the trust to take effect on the death of the settler, as to the residue of such property, will fall.-CARPENTER V. COOK, Cal., 64 Pac. Rep. 997.
61. TRUST-Validity.-Since all uses and trusts in re. lation to real property are abolished by Civ. Code, tit. 1. 6 847. except those specified in that title, and tho
erated therein do not include a trust to convey real property to beneficiaries, a devise of the residue of testator's property to trustees, to have and to hold during the lives of testator's children, and to be trang. ferred and conveyed on the death of the surviving child to certain beneficiaries, was void.-IN RE FAIR'S ESTATE, Cal., 64 Pac. Rep. 1000.
62. TRUSTS AND TRUSTEES – Resulting Trusts- Parol Evidence.-Parol evidence to establish a resulting trust must be clear and satisfactory, and sufficient to take the matter out of the realm of conjecture or presumption; and hence where only one witness testified directly that funds wbich defendant invested in mort. gages were furnished by plaintiff's intestate, and it appeared that witness derived all his information from conversations with deceased, which it did not appear were contemporaneous with the investments, the evidence was insufficient to show that deceased turpished the money, and that a trust resulted in favor of bis estate.- REYNOLDS V. BLAISDELL, R. I., 49 Atl. Rep. 12.
63. TRUSTS AND TRUSTEES-Revocation by Settlor.A voluntary active trust, by its express terms irrevocable, and which directs that the income be paid the settlor for life, and on his death the principal be con
I to others, cannot be revoked by him, in the absence of fraud, imposition, mistake, or & misappre. bension of the facts or its legal effect.- POTTER V. FIDELITY INS., TRUST & SAFE-DEPOSIT Co., Pa., 49 Atl. Rep. 86. | 64. USURY- Evidence.- In an action to have a mort. age declared paid and satisfied, on the ground that there has been paid as usurious interest more than the amount of the principal debt, it is error to charge that a contract for interest over 10 per cent. will cause a forfeiture of all interest, since the forfeiture for usury is only the interest in excess of that permitted by law.-COTTON STATES BLDG. CO. V. RAWLINS, Tex.. 62 S. W. Rep. 805.
68. WITNESSES-Competency - Transactions with Decedent.-A father gave each of two sons a tract of land. On one tract was a mortgage, and it is claimed that, in order to equalize the gifts, it was agreed that each son should pay one-half of this mortgage debt. Before the debt was paid, the son whose land was free from incumbrance died, and the other son brought an action against the administrator of the estate of the deceased son to recover one-half of the mortgage debt. The mother, who had joined the father in the conveyance of the land to the sons, became a witness, and testified as to tbe agreeinent with reference to the mortgage debt. Held, that she is not to be regarded as an assignor of the thing in action, nor is she precluded from giving such testimony by
of the prohibitions of section 322 of the Civil Code. -MILLER V. MCDOWELL, Kap., 64 Pac. Rep. 9810.
69. WITNESSES – Immunity to Witness. - Where. in a prosecution for card playing, defendant's counsel had argued that it was dangerous policy for a man to be exempted from punishment by the county attorney for testifying in a case, it was not error for the court to charge the statute providing that any person summoned before a grand jury may be compelled to testify in regard to any game of cards he may have engaged in, and, when 80 compelled to testify, shall be exempted from pros. ecution.-PHILPOTT V. STATE, Tex., 62 S. W. Rep. 921.
70. WITNESSES-Transaction With Deceased PersonExtent of Rule.- The provision of Rev. St. 1889, $ 8918 that, where one of the parties to a tract or cause of action is dead, the other party shall not be permitted to testify in his own favor, extends to every occasion on which such contract or cause of action may be involved; and hence a party claiming land under a trust deed is incompetent to testify concerning con. versations with the grantor therein, as against & claimant under another trust deed, who would be injured by the admission of such evidence.--BAKER V. REED, Mo., 62 8. W. Rep. 1001.