Графични страници
PDF файл

city council passes an ordinance requiring the wires within a designated district to be placed in subsurface conduits, the ordinance, whether & proper exercise of the police power or not, is valid, and must be obeyed, unless the plaintiff can establish by satisfactory evidence that tbe city council did not enact the ordinance in the exercise of a fair discretion, but arbitrarily or dishonestly. The allegations of the complaint, liberally construed, are sufficient to bring the case within the rule stated, and upon this ground alone I concur in the conclusion of the court that the complaint states a cause of action.

I dissent from so much of the decision that is to the effect that telepbone companies are given, subject only to a proper exercise of the police power, the right, by Gen. St. 1866, ch. 34, $ 28, as amended by Laws, 1881, ch. 73 (Gen. St. 1894, $ 2641), to use the public streets of the municipali. ties of the state, without the permission of the corporate authorities, for the purpose of erecting and maintaining their posts and wires therein, provided such posts be located as in no way to interfere with the safety or convenience of ordi. nary travel in such streets. It seems unreasonable to conclude that the legislature intended by this statute to repeal, pro tanto, existing special laws giving to the municipalities of the state the control of their streets, and to control tbe perpetual right upon telegrapb and telephone companies to enter upon any and all of the streets of such municipalities, without consent of the governing body thereof, and erect and maintain therein their poles and wires, subject to no control or limitation except such as is incidental to the exercise of the police power.

I am of the opinion tbat the plaintiff has no right to maintain its poles and wires in the streets of the defendant city by virtue of Gen. St. 1894, $ 2641, but that its rights therein depend upon the cbarter provisions and ordinances of the city. The plaintiff, by virtue of the existing cbarter provisions of the city, on January 24, 1883; the city ordinance of tbat date, referred to in the record as "Ordinance A;" the amendment of the charter 34 days thereafter (Sp. Laws 1883, ch. 3, $ 13); and by its acceptance of the ordinance,acquired a qualified contract right to maintain its telephone exchange system in the streets of the city. The right, however, to bave the poles and wires removed from the surface of the streets, and placed underground, whenever, in the opinion of the city council, public interest so required, was expressly reserved, as a part of the contract. This stipulation is something more than the mere right to regulate and control the streets of the city and the business of the plaintiff in the exercise of the police power. That right is inalien. able, and need not be reserved. While the city council, by virtue of tbis provision of the contract, cannot confiscate the plaintiff's property, nor wholly exclude it from the streets of the city, yet it does commit the question as to when, and to what extent, public safety, convenience, and comfort require that the defendant's poles should be removed from the surface of the streets, and its wires placed underground, to the discretion, judgment, and decision of the city council. It is the arbitrator agreed upon to determine the question, between the city and the plaintiff, whether public interests at any particular time require that the wires be placed below the surface of the street; and its decision, when made, whether it be correct, wise or just, is conclusive, unless it has acted in the premises arbitrarily or dishonestly. When, as in this case, the

en, as in this case, the

NOTE.-The Authority of Municipalities Over Tele. phone, Telegraph and Electric Companies in Ordering the Removal of Poles or Other Obstructions.-A queetion very often litigated at the present time, and on which the autborities are not in unison, is the rigbt of municipalities, under cbarter provisions giving them power to regulate the use of streets, etc., to compel telephone, telegraph and electric companies to bury their wires, and to prevent the further use of poles or other tixtures on the bighway which were erected by these companies under general state autbority. It must first be recogoized that where a tele. phone company erects its lipe in a street by the consent of the state and city, and pays damages therefor, itis pot a nuisance. Brown v. Southwestern Telegraph & Telephone Co. (Tex. Civ. App.), 44 S. W. Rep. 59. And it must also be furtber noticed, however, tbat a municipality cannot deprive itself, by contract or ordinance, of the rigbt to exercise the police power delegated by the statute to license and regulate the use of it streets by telephone and telegraph companies. Borough of Norristown v. Telephone Co. (Pa. Com. Pl. 1898), 15 Montg. Co. Law Rep. 9.

With these two general principles in mind, let us examine the authorities on the right of a municipality to regulate the erection of poles, and to wbat extent this right can be exercised under the police power. In Kentucky it was held, under Const., sec. 163, providing that po telephone company shall be permitted to erect its poles along the streets of a city without the consent of the proper legislative body of the city being first obtained, but furtber providing that when charters have been heretofore granted conferring such rights, and work bas in good faith been begun thereunder, the provisions of this section shall not apply, where a city council bad, without legislative autbority prior to the adoption of the present constitution, attempted to grant the right to erect telepbone poles and wires along and over the streets of the city, the city has the right to compe the removal of such poles and wires erected without the consent of the city council after the adoption of the constitution. East Temp. Telephone Co. v. City of Russellville, 51 S. W. Rep. 308. In Wisconsin, Rev. Stat. 1898, sec. 1778, authorizes telephone companies to locate poles and wires in public streets. A city charter authorized the city council by ordinance or resolution to keep streets free from incumbrances and to regulate their use, and provided that no obstruction should be placed in streets with. out a written permit from the board of public works. which was given power to regulate tbe placing of telephone lines in streets, parties aggrieved by a decision of the board having the right to appeal to the city council. Held, that a telephone company has no right to place poles in the streets of said city,

except under the direction of the board of public without their consent, or opportunity of being works, though neither the council nor the board of beard. public works bas passed any ordinance or by-law

One of the difficulties of this question is encoun. regulating the placing of telephone poles in streets.

tered in the construction of the acts of congress auCity ot Marshfield v. Wisconsin Telephone Co., 78 tborizing telegraph companies to erect and maintain N, W. Rep. 735. But in the case of Michigan

their lines along the postroads of the United States. Telepbone Co. v. Benton Harbor, 80 N. W. Rep. 386, | Tbe question to what extent tbis authorization goes the Supreme Court of Michigan held that Pub. Acts in interferring with the right of the state to regulate 1895, providing that municipal authorities way

and maintain its own bigbways, has been very often regulate or probibit the use of telephone poles in the

raised. For instance, in the first place, it has been streets, does not repeal Acts 1883, providing that beld that the Act of July 24, 1866, Rov. Stat., sec. telephone companies may maintain wires, with

5263, authorizing telegraph companies to maintain necessary fixtures, along any street or bigbway in

and operate their lines along the postroads of the the state, which shall not injuriously interfere with

United States, but so as not to interfere with ordinary its other public uses, since it only confers such travel thereon, applies equally to telepbone comauthority on municipalities subject to the general law panies. City of Richmond v. Southern Bell Tele. in reference to their streets.

phone & Telegraph Co., 85 Fed. Rep. 19. Tbis case, A franchise granted to a telephone company of

however, was subsequently reversed and the act of constructing and operating its lines along and upon

congress upder consideration held to have no appli. streets is subordinate to the rights of the public in a

cation to telephone companies whose business is that street for the purpose of travel. Cipcinpati Incline

of electrically transmitting articulate speech between Plane Railroad Co. v. Telegraph Association, 12 L.

different points. City of Ricbmond v. Southern Bell R. A. 541. State legislation, therefore, compelling

Telephone & Telegraph Co., 174 U.S. 761. This electric wires in the streets of a city to be placed

case seems to bave authoritatively settled the ques. under the surface of the streets is an exercise of the

tion whether the phrase "telegraph companies" police power, and not an unlawful attempt to

when used in this connection includes telepbone regulate commerce, or an invasion of the rights of a

companies as well. And again it was beld that the telegraph company. Western Union Telegraph Co.

right given by this statute is permissive only v. New York, 38 Fed. Rep. 552. But it was recently

and subject to all state or local legis. beld that a grant to a telegraph company to run and

lation regulating its exercise and such per. maintain wires over and through streets does not

mission does not affect the right of a munici. include permission to lay them underground.

pality in the exercise of its police powers to enact Commonwealth v. Warwick, 185 Pa. St. 623. This

and enforce ordinances intended to promote the case seems to lead to the dilemma of a company

safety and convenience of the public in the use of its authorized by the state to maintain its wires over the

streets. Michigan Telephone Co. v. City of Charlotte, streets being compelled by a municipality to do what

93 Fed. Rep. 11. In a later case it was held tbat this they bave no right to do under their charter, i. e., to

act does not authorize compulsory proceedings to place them under the ground. But it is plain that a

obtain a right of way over private property for such municipality cannot be permitted to act arbitrarily

lines, and condemnation of such right of way can in a matter of this kind. Thus, an ordinance provid.

only be made by virtue of some law of the state wbere ing tbat no telephone wire shall be stretched across

the property is situated. The very recept case of City any public street without the consent of the to‘vnsbip

of Toledo v. Telegraph Co., 107 Fed. Rep. 10, seems committee, was held not to be a regulation and

to bave gone further than any other case on this sub. restriction within the provisions of the statute giving

ject, and ought to definitely settle the question of tbe to telephone companies the right to stretch wires

rights of telephone and telegraph companies operat. over streets in incorporated cities and towns, under

ing under the provisions of the act of congress of certain conditions, subject to such “regulations and

1866. In this case it was held tbat an interstate restrictions" as may be imposed by the corporate

telegraph company which had accepted the pro. authorities. Inbabitants of Summit Township v, Tel.

visions of the act of 1866 was not entitled to erect and ephone Co. (X. J. 1898), 41 Atl. Rep. 146. And again,

maintain its lines over the streets of a city without wbere an agreement between a city and telephone

complying with the reasonable regulations of the city company as to the mode of use of its streets bas

for the erection and maintenance of such lines and expired by limitation, the city cannot oust the com.

without procuring a permit therefor from the city. pany from the use and occupation of the streets until

It might be fairly stated to be the rule deduced it made to appear that no agreement can be made,

from the authorities tbat telepbone or telegraph comand tbat the company, after such failure to agree,

papies operating under provisions of a statute giving delays unreasonably to apply to the court to fix the

them the right to place their wires and fixtures over mode of use, as prescribed by law. State v. The

the roads and highways of the state cannot be arbi. Central Union Telepbone Co., 14 Ohio Cir. Ct. Rep.

trarily deprived of such right by municipal ordinance

or regulation. Even where tbe municipality has power The point as to the constitutionality of municipal

under its charter to regulate the placing of poles and

other obstructions on the streets of the city, still such ordinance, requiring the removal of wires to under

regulation or restriction must be reasonable, and the ground conduits, does not seem to have been raised successfully. Thus, in the case of Geneva v. Tele

municipality is not the sole judge of that fact. But phone Co., 62 N. Y. S. 172, it was held that Laws

where the municipality has no such express power to 1897, authorizing board of public works of the city

regulate the use of the streets, it may still prohibit

and order the removal of obstructions on the streets of Geneva to require telephone companies to move their wires from poles to underground conduits

of the city under its general police power. But in whenever it shall, by resolution, determine that

this case also its action must be shown to be a public safety requires such removal, was not uncon

reasonable exercise of the police power and neces. stitutional, as imposing taxation on such corporations

sary to protect the property, health or general welfare of the inhabitants of the municipality.



formation must be definitely stated.-IN RE VEEDER,

X. Mex., 65 Pac. Rep. 180. AMERICAN STATE REPORTS, VOL. 79.

1. BANKRUPTCY - Allowance of Attorney's Feee.One of the most pleasant duties of the editor of the

Bankr. Act 1898 presupposes that attorneys employed CENTRAL LAW JOURNAL, and one wbich he is called

to file a voluntary petition in bankruptcy will ar upon to undertake with increasing frequency, and,

range with their client for the prepayment of their of course, increasing delight, is the review of each fees for the services required in the ordinary coune successive volume of the American State Reports. of the proceedings, and the provision of gection 64b, The seventy ninth volume of this excellent series of el. 3, contemplates the allowance from the estate by annotated reports, just received, is a conspicuous

the court, in its discretion, of additional fees for ex: example of the superiorities of this series over others

traordinary services which may have been required

from such attorneys, which should be fixed at such of similar cbaracter; first, in its judicious selection,

sum as is equitable in view of the fees already received of only the best considered cases; second, in its learned

and the rights of creditors.-IN RE SMITH, U.S. D. C.. and exbaustive monograpbic notes, treating only

E.D. (M. Car.), 108 Fed. Rep. 39. the latest and livest questions of law, and third, in its

5. BILLS-Notes – Execution Purchaser.-An execu. excellent workmanship, delighting the eye and

tion purchaser of a note takes it subject to all equlties suiting itself admirably to the needs and conveniences

existing agaiost it in the hands of the original maker. of the busy lawyer. Out of many exhaustive mono.

-NEALE V. HEAD, Cal., 65 Pac. Rep. 132. graphs we select the following as being of special

6. BOILDING AND LOAN ASSOCIATIONS-Sale-Shareinterest: “Wbat Marriages Are Void," p. 361;

holder's Contract-Rescission-Vendor's Lien.- Where “When Does the Title of a Statute Embrace But One

plaintiff executed a deed of trust to a bollding and Subject, and What May be Included Thereunder,"

loan association to take up a pote for the purcbase p. 456; “Title Acquired by Purchaser at His Own price of the lot, and to pay for inaterial which had Execution Sale," p. 947; “What Words Create Condi. been used in erecting a building on it, and the associa• tions Subsequent," p. 747; “Partnersbip After tion, without the consent of its stockholders, assigned Death," p. 709; “Constitutionality of Civil Service its assets to defendant, and ceased business, the deLaws," p. 560. Published by the Bancroft. Whitney

Pendant was entitled, on plaintiff's rescinding his con.

tract, to be subrogated to the vendor's lien, and to a Company, San Francisco, Cal.

foreclosure of the lien.-NORTH TEXAS SAV. & BLDG. A88N. V. JACKSON, Tex., 63 8. W. Rep. 344.

7. BURGLARY-Evidence.- Where one witness in a WEEKLY DIGEST.

prosecation for burglary testifies to bavipg seen #

man running from the burglarized house, evidence of 01 ALL tho Carront Opinions of ALL tho Stato

another witness that defendant's shoes corresponded

with tracks found at the place of the burglary is ad. and Torritorial Courts of Last Resort, and of

missible, though it is not shown that the tracks were tho Sapromo, Ciroalt and Dlotrict Court of the made by the man running from the house.-PEOPLE

v. ROWELL, Cal., 65 Pac. Rep. 127. United Statos, excopt thoso tbat aro Pabllobod

8. CABRIERS-Relation of Carrier and Passengerin Fall or Commontod apon in oar Notos of Im. How Created.-The relation of carrier and passenger, portant Decisions and except thoso Opinions in

which will bring a carrier under the obligation to ex.

ercise the high decree of care and caution for tbe which po Important Logal Principles aro Dio.

safety of a person inposed by such relation, can only onssod of Intorost to the Profession at Largo. be created by contract, express or implied.-FARLEY

V. CINCINNATI, H. & D. R. Co., U. S. C. C. of App., ARIZONA......


Sixth Circuit, 108 Fed. Rep. 13. ARKANSAS...........

......................16 9. COMMISSIONER OF PUBLIC LANDE-Powers-Illegal CALIFORNIA.......

........5, 7, 11, 22, 43, 47, 48 Exercise-Injunction.-Plaintiff alleged that defend. KENTUCKY......

..................10, 25, 36, 44 ant, as commissioner of public lands, threatened to NEW MEXICO..........

...........2, 3, 23, 41

lease certain public land adjoining a city of which OBEGON.....

.............1, 39

plaintiff was an inhabitant and taxpayer, and that the TEXA 8, 6, 12, 13, 14, 15, 17, 18, 19, 20, 26, 28, 29, 32, 33, 34, occupation of such lands by the lessees would con 37, 40

taminate the city water supply, and result in irrepa. UNITED STATES C. C. OF APP., ............8, 30, 28, 46, 49 rable injury to the inbabitants of the city. Held, that UNITED STATES D. C..............

the threatened injury was too remote to require a UTAH................


court of equity to inquire as to whether the threatened WASHINGTON..............................9, 21, 27, 31, 35, 46 acts were within the exercise of the powers of the

commissioner.--CITY OF TACOMA V. BRIDGES. Wasb., 1. ACCOUNT STATED-Attorney and Client.-Where 65 Pac. Rep. 186. an attorney made out and delivered to his client a

10. CONTRACT-Agreement to Support Another.statement of his account for services rendered, abow.

Where a conveyance was executed in consideration of Jpg an itemized schedule of debits and credits and the

the grantee'g agreement to support un imbecile sister balance due, such account became an account stated,

of the grantors, he cannot refuse to furnish that sup. unless objected to within a reasonable time.-CRAW.

port because the imbecile refuses to remove with bim FORD V. HUTCHINSON, Oreg., 65 Pac. Rep. 84.

to another state, as he is bound to furnish the support 2. APPEAL-Findings of Court-Equity.-The find. under such reasonable circumstances as may best ings of a court which tries a case without a jury, and nduce to her comfort and convenience.-LAIN V. without delegating its powers to a master or referee, MORTON, Ky., 63 S. W. Rep. 286. is entitled to as much if not more consideration than

11. CORPORATIONS - Collateral Security - Pledgeethe findingg of a master or referee, and the judgment

Rigbt of Action.-Certificates of stock, assigned as a or decree will not be disturbed upless the evidence is

curity for an indebtednes8, give the bolder, as pledgee manifestly insuficient to sustain it.-BADARACCO V.

of the stock, a right to maintain an action to compel BADARACCO, N. Mex., 65 Pac. Rep. 153.

defendant corporation to recogpize it as a stock 3. ATTORNEY AND CLIENT - Disbarment - Iuforma. | holder, after an illegal levy of assessments on the tion.-The verification of an information in a pro. stock and sale thereof for delinquency.-HERBERT ceeding to disbar an attorney may be made on in. KRAFT CO. BANK V. BANK OF ORLAND, Cal., 65 Pac. formation and beliet, but the sources of affiant's in: | Rep. 144.

[ocr errors]
[ocr errors]



[ocr errors]



[ocr errors]











[ocr errors]

13. CRIMINAL EVIDENCE - Homicide-Sell Defense laration as tending to sbow a motive for tbe sboot. Dying Declarations.-Where dorendant sbot deceased ing, where the beef bad evideptly been stolen.as the latter was crawling toward defendant's house, MEDINA V. STATE, Tex., 68 S. W. Rep. 881. and defendant testified that be bailed deceased, and

21. EVIDENCE-Federal Census.-Tbe federal cenous the latter made & move as if to draw a pistol, de.

is competent evidence to prove the population of a ceased's dying declaration that he had no weapon was

county.-STATE V. NEAL, Wash., 65 Pac. Rep. 188. admissible as a part of the res gestæ.-GRUBB V. STATE, Tex., 63 S. W. Rep. 314.

22. FIBE INSURANCE – Policy - Dwelling House.

Where, in an action on a fire policy on a bullding 13. ORIMINAL LAW-Alibi - Instruction.-An instruc.

“while occupied as a dwelling house," tbe complaint tion that the plea of alibi merely traverses tbe issue

fails to allege that the building was so occupied at the tendered in the indictment, and is not an independent

time the fire occurred, the complaint does not state a fact, and therefore the burden of proof is not on the

cause of action, since tbere could be no recovery up: defendant to establish it, was properly refused.

less guch fact was proved, and the facts pecessary to SAENZ Y. STATE, Tex., 63 S. W. Rep. 316.

be proved must be alleged.-ALLEN V. HOXE INS. CO. 14. CRIMINAL LAW-Court's Jurisdiction.-Under the OF NEW YORK, Cal., 63 Pac. Rep. 138. general laws of Texas, the county court has concur.

23. FRAUD-Presumptions.-Where the facts upon rent jurisdiction with the justice courts overall mis.

which fraud is predicated consist as well with bon. demeanors that said courts have jurisdiction to finally

esty as with dishonesty, the law presu nes in favor of try.-BRADY V. STATE, Tex., 63 8. W. Rep. 327.

honesty.-FIRST NAT. BANK OF ALBUQUERQUE V. LES. 15. CRIMINAL LAW - Larceny - Fraudulent Intent. SER, N. Mex., 65 Pac. Rep. 179. Where defendant sold a horse, which he did not own, 24. FRAUD-Special Deposit-Fraud of Depositor.-A to ad innocent purchaser, who afterwards took pog. complaint alleging tbat plaintiff made a special de. session of it in another county, the fact that the pur.

posit with defendant bapk, to be loaded on real estate. chaser had no truudulent intent, when taking the

but that the bank loaned it to H witbout any security. borge, is not a defense to defendant, when charged

and knowing tbat be was insolvent, is suficle with larceny of the borse, since defendant had the gupport tbat a recovery for fraud on the part of tbe fraudulent intent, and the purchaser was acting as de. bapt in procuring H, who was indebted to it, to ex. tendant's agent.-WALLS V. STATE, Tex., 63 S. W. Rep. ecute a new pote to plaintiff, and thereupon transfer. 328.

ring the amount of the loan from the plaintiff's ac. 16. CRIMINAL LAW-Murder in First Degree-Alibi. count to that of the bank.-LARSEN V. UTAN LOAN & Ap instruction that the burden of showing an alibi is TRUST CO., Utah, 65 Pac. Rep. 208. on tbe detendant, but, if the testimony in the whole

25. FRAUDULENT CONVEYANCE — Debts of Husbandcase raises a reasonable doubt of defendant's pres.

Liability.-Land levied on by plaintiff was conveyed ence wbep the crime was committed, he should be ac.

to the wife by a third person. The execution creditor, quitted, is not erroneous as shifting the burden op de.

though he could easily bave obtalped knowledge of fendant to show his innocence.-RAYBURN V. STATE,

the wife's title, made po attempt to gain possession Ark., 63 Pac. Rep. 366.

until more than five years bad expired after the con. 17. CRIMINAL LAW-Theft-Sufficiency of Evidence.

veyance. Held, that he was not then entitled to main. Prosecutor engaged in a game of poker with five tain a motion for possession on the ground that the strangers, one of whom, the defendant, was dealing property had been fraudulently conveyed to the wife the cards. During the course of the play, defendant to defraud her husband's creditors, since, If any fraud dealt prosecutor four aces and another four kings. existed, the creditor did not use ordinary diligence to Defendant then went out, and another took his place discover the same.-GKEEN V. SALMON, Ky., 63 S. W. as dealer. When it came to a "showdown,” prose.

Rep. 270. cutor stated what be held, but declined to show bis

26. HABEAS CORP08-Custody - Appeal.-Defendant band. One of the others then grabbed his cards, say.

sued out a writ of habeas corpus, and was romanded to ing, "You have got a loul; you have six cards;" and op placing them on the table there were six cards.

custody, whereupon he appealed. Instead of being Thereupon the players grabbed for their money,

retained in custody, be was given bis freedom on & secutor failing to get any. Prosecutor testifed

recognizance. Held, that the appellate court had no that he had five cards until the player grabbed |

jurisdiction of the defendant, and big appeal m band, and that he thought that defendant was present,

dismissed.-EX PARTE MCMINN, Tex., 68 8. W. Rep. 322. and joined in the grabbiog. All the other witnesses 27. HOMICIDE — Judgment - Sentence - Death War. testified that they did not see defendant present or rant.-Ballinger's App. Codes & St. $$ 6998, 6996, pre. grab for money. Huld, that the evidence was ipguffi. scribe the proceedings to be taken when judgment of cient to sustaid a conviction for theft.-HERNANDEZ death is rendered, and include the provision that “tbe V. STATE, Tex., 63 S. W. Rep. 320.

judge shall appoint a day for the execution whicb shall 18. CRIMINAL TRIAL-Counsel - Sickness - Intoxica

pot be less than 30 por more than 90 days from the

time of judgment, and the sheriff or oficer to whom a tion-Continuance.- Where the sickness of defend.

death warrant is delivered sball return the same ant's leading counsel was voluntarily produced by the

within 20 days after the time axed for execution." use of intoxicating liquor, and defendant was repre.

Act March 8, 1901, relating to the death warrant, the sented at the trial by able counsel, it was not error to

contents thereof, the return, and ixlog the place of refuse a continuance.-COLEMAN V. STATE, Tex., 63 S.

execution, amended sections 6993, 6996, supra. Held, W. Rep. 322.

that mandamus would lie to compel the judge of the 19. DIVORCE - Validity-Collateral Attack.-The ob.) sup-rior court to issue a death warrant against a de. jection that a decree of divorce is void, because the fendant convicted before the amendment, though tho parties thereto were not residents of the state when day fixed tberein would necessarily be after the divorce was granted, cannot be raised to defeat amendment took effect.-STATE V. SUPERIOR COURT OF the confirmation of the report of commissioners in & PIERCE CO., Wash., 65 Pac. Rep. 183. sult by the wife to partition community property,

28. HOMICIDE -Murder-Acquittal-Manslaughter.since such questions were passed on by the court

Where defendant was acquitted of murder, and con granting the divorce.-MOOR V. MOOR, Tex., 63 8. W.

victed of manslaughter, and on appeal tbe judgment Rep. 347.

was reversed, he was not entitled in the succeedlog 20. EPIDENCE – Dying Declaration.-A statement trial to an instruction to acquit bim of the charge of that the accused and others were skinning or killing &

manslaughter, if the evidence sbowed him to be guilty beet when declarant found them, whereupon accused

of murder.-PICKETT V. STATE, Tex., 63 S. W. Rep. 325. shot declarant, 18 admissible as part of a dying dec. 29. HOMICIDE - Self-Defense - Several Asgallante..

Where the evidence shows that it may bave appeared ment from being binding on him.-SOUTHERN ROCK to defendant that he was in danger of his ille or of ISLAND PLow Co. V. PITLUK, Tex., 63 8. W. Rep. 854. serions bodily harm from more assallants than one,

38. LOAN TO PAY INTEREST ON MORTGAGE COUPONS acting together, an instruction on self-defense, falling

Lender's Right to Preference over Mortgage.-Tbat to charge that defendant had a right to defend against"

money was borrowed to pay interest on matured rail. and to kill either assallant, 18 erroneous.-SEELEY V.

road mortgage coupons 18 po ground for giviog the STATE, Tex., 63 S. W. Rep. 309.

lender a preference over the mortgage; and this, 30. INDICTMENT-Conspiracy to Defraud the United though the loan was necessitated in part by the ap States-Description of Offense.-An indictment under

plication of current income to the payment of the pur. Rev. St. § 5440, charging a conspiracy to defraud the

chase money for locomotives which become subject to United States by depriving it of the title to certain the mortgage under an after-acquired property clause. lands by means of a fraudulent entry under the home. -CONTRACTING & BUILDING CO. OF KENTUCKX V. CONstead laws, which avere that the entry was made, and TINENTAL TRUST CO. OF NEW YORK, U. 8. C. C. of that by means of it the accused obtained possession

App., Sixth Circuit, 108 Fed. Rep. 1. of the land, and cut the timber thereon, is sufficient.

39. MASTER AND SERVANT.-Where laborers were furand need not allege that the land was subject to bome. stead entry. The conspiracy constitutes the offepse,

nisbed by an employment agency to a rallroad pro

moter, and such laborers committed a trespass on and It need not be shown bow the overt act tended to effect its purpose, or that it was successful.-GANTT V.

plaintiff's land, and cut timber thereon without right, UNITED STATES, U.S.C. C. of App., Fifth Circuit, 108

under the impression that the land was a part of tbe

right of way, the employment agency could not be Fed. Rep. 61.

rendered liable for the trespass under the doctrine 31. INSURANCE-Premiumg - Non. ayment-Forfeit.

tbat a master who hired bis servants to another ls ure.- Where a life insurance policy called for an an.

nevertheless liable for their negligence, be being renual premium, non-payment of which forfeited the

sponsible for employing upqualified and careless per. policy, but provided that the assured might, with the

sons, since the injury did not result from any negli consent of the company, pay the premiuin in quar.

gence in the selection of the laborers bired to the proterly installments, the assured, having chosen the lat.

moter.-SWACKHAMER V. JOANSON, Oreg., 65 Pac. Rep. ter method, was bound thereby, and the policy was

91. forfeited by his failure to pay the installments, though there was no provision in the policy regarding for.

40. MASTER AND SERVANT-Injury to Employee-Neg. feiture for non-payment of installments.-NIXON V.

ligence of Fellow.Servant.-Where a servant was not TRAVELERS' INS.CO. OF HARTFORD), CONN., Wash., 65

negligent, the master was liable if regligent, it such Pac. Rep. 195.

negligence was the cause of the injury to the servant,

though the negligence of plaintiff's follow-pervant 32. JODGMENT -- Amount - Remittitur.- Where the may bave contributed to the injury.-TEXAS & P. RI. judgment is in excess of plaintiff's demand as shown CO. V. MAUPIN, T+x., 63 S. W. Rep. 346. by his pleadings, it will be reversed, unless remitted

41. MECHANICS' LIENS-Fees of Master-Sale under to the amount clalmed.-TEXAS & P. Ry. Co. y.

Decree.-A master who incucs expenses by having MITCHELL, Tex., 68 8. W. Rep. 336.

drawn up a notice of sale, etc., before the time limited 33. JURY-Discussion-Defendant's Failure to Tes.

for the redemption of property has expired, does so at tify.- Where jurore discussed the failure of detend. his own risk, and cannot recover back such expenses, ant, charged with arson, to testify, and some of the if the mechanics' liens for which the sale was to be jurorg attempted to explain such failure, there was made are pald before the expiration of the time lim. roversible error.-BUESSING V. STATE, Tex., 63 S. W. Ited for redemption.-NERER V. CRAWYORD, N. MED., Rep. 318.

65 Pac. Rep. 186. 34. LANDLORD AND TENANT-Lien for Rent-Tenant's

42. MECHANICS' LIENS-Foreclosure.-Wbere miners Goods Retained.-Where plaintiff claimed a landlord's

perform labor for the lessee of a mine under a con lien on a safe left on his premises as against purchasers

tract with him alope, they are not entitled, under Rev. thereof from the tenant, the issue as to whether or

St. par. 2276, to a judgment against the owner of the not there was any rent due to plaintiff should have

fee, foreclosing mechanics' liepg on the freebold.been submitted to the jury.-MYAR V. EL PASO GRO

GRIFFIN V. HURLEY, Ariz., 65 Pac. Rep 147, CERY CO., Tex., 63 8. W. Rep. 337.

43. MORTGAGES-Deficiency-Judgment-Transfer of 35. LANDLORD AND TENANT - Rent - Action-Judg. Mortgage-Personal Liability.-Where the mortgagor ment. Where defendant leased plaintiff's premises conveyed the premises to one who assumed the mort. for one year, paying one montb's rent in advance, gage, which fact was koown to the mortgagee, who and at the expiration of the month offered to sur. agreed in writing with such grantee that the time for render the premises, which plaintiff refused, an action payment should be extended, it was error to epter de to recover the second month's rent in advance, de. ficiency judgment against the mortgagor, since the cided against plaintiff, and in which the only material mortgagor stood in the relation of surety, and was issue was the validity of the lease, was a bar to an ac. therefore discharged from personal liability.-HERD tion after the expiration of the year to recover rent,

V. TOOHY, Cal., 65 Pac. Rep. 139. since, the defendant not having been in use and oc

44. MORTGAGE-Undertaking to Pay Mortgage.-A cupation, recovery would necessarily depend on the

deed conveying about 100 acres of land, wbicb recites lease.-DOLAN V. SCOTT, Wash., 65 Pac. Rep. 190.

that the grantees undertake to support the grantors 36. LIFE INSURANCE-Failure to Pay Premium Note for life, and that it is understood that the grantees are at Maturity-Waiver of Forfelture. Neither the fact to pay off a certain mortgage “on 28 acres of land that the company retained the notes nor the fact that hereby conveyed, in addition to the foregoing," creipsured retained the policies amounted to a waiver of ates a lien on the entire tract conveyed to secure tbe forfeiture, the insured having the right to a reinstate. payment of the mortgage debt.-FISHER V. HALL'S ment of the insurance upon certain conditions, and ExR., Ky., 63 S. W. Rep. 287. the company therefore having no rigbt to demand a 49. PLEADING AND PRACTICE-Misjoinder of Defend. return of the policies.-MANHATTAN LIFE INS. CO. V. ants-Waiver by Failure to Objeet before Trial.-Alter SAVAGE'S ADMR., Ky., 63 8. W. Rep. 278.

a defendant files pleas to the merits, and goes to trial, 37. LIS PENDENS-Sale Pendente Lite - Purchaser's and remains silent till evidence is offered which entl. Llability.-Where plaintiff seized property under a

tles plaintiff to judgment on the issues, it is too late to writ of sequestration, and it was replevined by de. make an objection for misfoinder of parties defendant fendants and sold to C pendente lite, and plaintiff ob. | which he could bave made before.-UNITED STATES V. tained judgment in the replevin sult, the fact that C

AGER, U.S. C. C. of App., Fifth Circuit, 108 Fed. Rep. purchased for other parties did not prevent the judg. 1 10,

« ПредишнаНапред »