Графични страници
PDF файл

kev. Stat. 1894, $ 7051) provides that, when the busi. ness of any person shall be suspended by the action of creditors, the debts owing to employees for labor to ad amount not exceeding $50 each for work per. formed within six months pext preceding the seizure of the preperty of such person shall be treated as pre ferred debts, and shall be first paid in full. Held, that the statute is not unconstitutional as impairing the obligations of contracts because it operates only on contracts entered into after its enactment; nor is the statute unconstitutional as devesting vested rights, since the legislature has power to regulate the priority of statutory lieds, among which hre chattel mortgages.-SMALL V. HAMMES, Ind., 60 N. E. Rep. 342.

9. CONTRACTS - Assignment - Breach. - Defendant gold big livery stable to plaintiff and F, as partners, and agreed not to re-engage in the livery business in that town while the parties of the second part were engaged in that business on the premises sold. F assigned big interest in the contract to plaintiff, and thereafter defendant started a livery stable. Held, that the assignment destroyed the identity of the partners bip, and the act of defendant was pot in violation of his agreement.-BARRON V. COLLENBAUGH, Iowa, 86 N. W. Rep. 53.

10. CONTRACT-Iguorance. - The fact that eureties sign a bond without reading it, though they have opportunity to do so, in reliance on false representa ilons of the principal obligee that it is only a recommendation of the latter, does not relieve them from liability thereon.-SPRING GARDEN INS. Co. V. LEM xos, Iowa, 86 N. W. Rep. 35.

11. CONTRACT-Option.-An agreement of the owners of a certain lot that they will not sell it without first notifying an adjoining owner of the intention to sell, and giving him tbe privilege of buying the ground at a fair market price, becomes enforceable when the owners of the lot, without notifyiog tbe adjoining owner, cause a sale of it to be made by partition proceedings in this court. Such proceedings are a mani festation of an intention to sell.-MYERS V. METZGER, N. J., 48 Atl. Rep. 1113.

12. CONTRACT OF SALE - Agent-Oral Warranty.-A sales agent authorized to sell and warrant farm machinery under written conditions to be required of the purchaser may bind his principal by an oral warranty where he withholds from the purchaser all knowledge of the limitations upon his authority to impose such condition, as in this case.-PARSONS BAND CUTTER & SELF FEEDER CO. V. HAUB, Min., 86 N. W. Rep. 14.

13. CONTRACT OF SALK--Breach of Warranty-Dama. ges.-A contract in which it was provided that if a cer. tain machine, for and on which potes were given and freight charges paid, did not and could not be made to

I the warranty therein contained, it was to be re turned to the place where received. and another cbine substituted therefor, or the “money and poteg! returned, construed. Held, that the amount paid for freight charges could be recovered, in addition to the amount of the notes, in case of a breach of the war. ranty and a failure to substitute another machine.EVENSON V. KEYSTONE MFG. Co., Mipn.,86 N. W. Rep. 8.

14. CORPORATION-Contract-Signature of President. -Where a contract is consummated entirely through correspondence, it does not follow, as a natter of law, that the ludividual signature of the person who is president and manager of the corporation to letters 18 conclusive that he acts in his individual capacity. He may sign his individual name with an intent and purpose to bind the corporation, and in such case hig acts would do so, if relied upon by the other contract. ing party.-TOWERS V. STEVENS CATTLE Co., Minn., 86 N. W. Rep. 88.

15. CORPORATIONS-Lease- Disser". -Under Stat. 1900

unlese besball file his dissent, and that the shares of any dissenting stockholder shall be acquired by the lessee, the lessee is not required to buy the stock of a member of such corporation who had voted for the lease and afterwards filed a written declaration of dig. sept.-BOSTON & M. R. R. V. GRAHAM. Mass.. 60 N. E. Rep. 403.

16. CORPORATIONS - Taxation - Statutory Require. ment.-Pub. Stat, ch. 13, $$ 38, 40, impose a tax on every corporation chartered by the commonwealth, or organized under the general laws for business or protit, having & capital stock divided into shares. The defendant gas company was organized in July, 1896, and in December, 1897, issued $1,000,000 worth of shares, which were paid for in cash. Held, that the fact that defendant's treasurer did not file a certificate with the secretary of State that the capital stock had been paid in, as required by Pub. Stat. cb. 106, $ 46, until December 21, 1899, did not relieve the defendant from the payment of the tax assessed on May 1, 1898, since the corporation cannot escape taxation by fail. ing to comply with the statutory requirements.-AT TORNEY GENERAL V. MASSACHUSETTS PIPK LINE GAS Co., Mass., 60 N. E. Rep. 389.

17. DEEDS – Constructive Notice.- Where the pur. chaser of land at a foreclosure sale notifies tenants thereon that he is the owner, and instructs them to pay the rent to him, and they consent thereto, they vecome his tenants; and their possession is construc. tive potice of the purchaser's interest therein to a person afterwards acquiring a deed to the land from the former owner.-HANNAN V. SEIDENTOPF, Iowa, 86 N. W Rep. 44.

18. DEEDS-Quitclaim.-Land worth $4,000 was sold at a foreclosure. The purchaser failed to record his deed, and the former owners transferred it by quit. claim deed to G, who conveyed it to M on the follow. ing day by warranty deed. The deed to G stated that It was given in consideration of $1 and other valuable consideration, and that the grantor made no represen tations as to the title, other than those contained in the deed. G paid for the land with 25,000 shares of mining stock, for which he had paid $75, and he sold the land to M for $440, and it was purchased by the latter without seeing it or obtaining an abstract of title. Held, in an action by the foreclosure purchaser to recover the land, that the evidence was not sutti. cient to show that M was an innocent purchaser thereof.-HANNAN V. SEIDENTOPF, Iowa, 86 N. W. Rep. 45.

19. EVIDENCE – Expert Witness - Qualification. Where, in a suit against a railroad for injuries to land caused by fire escaping from the right of way, a wit. ness had resided for years in the neighborhood of the lands, and had been allowed, without objection, to testify as to the value of such lands before they were burned, an objection to the admission of his testimony as to their value after they were burned, on the ground that he had only been on a small portion of the lands since the fire, was to the weight, rather than the competence, of the evidence, and its admission was not error.-OHIOAGO. I. & L. Ry. Co. v. BROWN, Ind., 60 N. E. Rep. 346.

20. EVIDENCE-Hearing.-Where a brakeman in a suit against a railroad for personal injuries testified that his physician had advised another operation, and that the physician was too ill to appear at the trial, such evidence was incompetent, as hearsay, and prejudicial, as tending to enhance the damages for future pain and suffering.-TROTT V. CHICAGO, I. & P. RY. Co., Iowa, 86 N. W. Rep. 33.

21. EVIDENCE-Judicial Notice-Common Law.-The courts of Minnesota do not take judicial potice of the on low m

aint-- State - On.vn.- V Conan

prove conversations with, or admissions of, any delaying out of a road returned an award in favor of ceased or insane person, whether a party to the liti. such landowner, and, in a petition by her to recover a gation or not, relative to apy matter at issue between balance of the sum so awarded, she alleged that there the litigants, adhered to, and the rule applied. was sufficient money in the county treasury liable for LOWE v. LOWE, Minn., 86 N. W. Rep. 11.

the payment of a warrant for guch balance, but the 23. EXECUTORS AND ADMINISTRATORS – Surviving

court failed to find, in conformity with such allegaras Executor.-A testator, up to the time of his tion, that there was money applicable thereto, a judg. deatb, was engaged in business in partnership with ment requiring the payment of such balance will be one of the two executors named in the will. After the reversed, since such claims can oply be paid from the testator's decease such executor continued the busi

particular fund applicable to the construction of ness as the surviving partner. He then entered into

roads, and not from general county funds.- BOARD OF an agreement with his co executor, whereby he pur

COMRS. OF MONBOK COUNTY V. STATE, Iod., 60 N. E. chased the interest of the estate at a certain som, but

Rep. 344. no money was paid to the co-executor, and no ac. 30. HIGHWAY8-Discontinuance - Owner's Rigbt to counting was made to the probate court by either

Damages.- Where land claimed to be damaged by the executor. Both executors were discharged without

alteration of a railroad grade croesing was a bigbway having rendered an accounting, leaving the estate un.

when the proceedings for alteration were begun, the administered. In an action against such surviving

fact that in the course of the procerdings the highway partner by a subsequeptly appointed administrator

was discontinued, and the land was taken by the rail de bonis non, to compel an accounting, held, that such

road company for railroad purposes, did not preclude surviving partner was not a debtor of the estate at

a finding that the land was thereby subjected to a the death of the testator, and that his relation to the

more onerous use than it had previously suffered so estate still remained that of executor, and the juris.

as to preclude the owners from proof of damages by diction of the probate court to compel an accounting reason of the alteration.- BULLABD V. NEW YORK, N. was exclusive, and such jurisdiction was not lost by

H. & H. R. Co., Mass., 60 N. E. Rep. 381. the fact that the executor was discharged, leaving

31. HUSBAND AND WIFE-Gift to Husband-Presump. the estate unadministered.-BETCHER V. BETCHER, Minn., 86 N. W. Rep. 1.

tion.-The presumption of law is against a gift by the

wife of the principal of her separate property to the 24. FINAL JUDGMENT – Abandonment of Ancillary

husband, and the burden of proving itig upon him Proceedings.- Where, in an action for divorce, a fval

who asserts It.-ADOUE V. SPENCER, N. J., 49 Atl. Rep. judgment for plaintiff is rendered, without an adjudi.

10. cation being had on an issue in ancillary proceedings

32. HUSBAND AND WIFE-Married Women's Act-Gift of attachment and garnisbment, that part of the case

to Husband.-Tbe statutes in the several States as to is abandoned, and the court has no power to alter. wards take up the matter of the attachment and gar:

the property of married women, when as broad as the nishment independently, and render a judgment on

Texas statute or our own, have entirely overthrown those issues.-SAHNER V. SAHNER, Iod., 60 N. E. Rep.

the common law rule of the merger of the wife's en: 269.

tity and estate, upon marriage, in the husband. It is

unnecessary, under these statutes, that wile shall 25. FIRE INSURANCE - Conditions – Arbitration.-A.

take from her husband a promissory note, or other condition in a fire policy requiring the submission to

acknowledgment, upon banding him money of her arbitration of any difference as to a loss on the re separate estate, to be able to establish that such takquest in writing of either party, and providing that ing by him was a loan. In the transactionsbe will be no action shall be brought on the policy until after

considered as a feme sole, and as if a stranger to her the award. ig waived on a failure of either party to

husband.-ADOUE V. SPENCER, N. J., 49 Atl. Rep. 10. request an arbitration.-GARRETTSON V. MERCHANTS' & BANKERS' FIRE IN8. Co., Iowa, 86 N. W. Rep. 32.

33. HUSBAND AND WIFE — Widow's Remarriage

Mortgage.-Where a woman and her second husband 26. FRAUDULENT CONVEYANCES-Husband's Deed to

executed a mortgage on land wbicb descended trom Wife.- A conveyance of land by a husband to his wife

her first husband to ber as his widow, there being by a deed through a third party, to secure her for the

children of such marriage living, thus violsting principal of money of her separate estate taken and

Burds' Rev. St. 1694, § 2641 (Rev. St. 1881, § 2484; Hord. used by him, will be decreed to be a mortgage, and er's Rev. St. 1897, § 2484), which forbids & widow regood as against creditors to the extent only of the

marrying to alienate real estate held by virtue of her amount of the principal so received by him, with in.

previous marriage, etc., a decree of foreclosure terest thereon from the date of the delivery of such

thereon will be binding on the wife, and cannot be deed.-ADOUX V. SPENCER, N. J., 49 Atl. Rep. 10.

collaterally attacked.-MAYNARD V. WAIDLICH, Ipd., 27. FRAUDULENT CONVEYANCES-Husband's Deed to 60 N. E. Rep. 349. Wite-Burden of Proof.- Where such a conveyance is

34. INJUNCTION-Separate Actions at Law-Relief in attacked by creditors as voluntary or fraudulent, the

Equity.-Where a common right or a community of burden is on the wife to establish that her husband

interest in the subject matter of a controversy, or a took and used her separate estate; but when that fact

common title, from which all of the defendants' sepis established, whether such taking was with or with

arate claims, and all questions at issue between the out her consent, the burden tben hilts, and those

parties plaintiff and defendante, have arisen, can be claiming that such taking and use were by gift of the

shown at the trial, an equitable action will lie to re. wife must establish such gift to the husband.-ADOUK

strain and enjoin the several defendants from proseV. SPENCER, N.J., 49 Atl. Rep. 10.

cuting separate actions at law against the plaintiff. 28. DAMAGE 8-Highways.-In an action for the con. Held, that under this rule a cause of action was stated

42. LIMITATIONS-Wills - Probate.-Under Code Civ. Proc. $ 2628, relating to the running of four years' limitation after the death of an owner of realty, and de. claring that, "11 the will was concealed by one or more of the heirs of the testator, the limitation" would not begin to run until the delivery of the will to the devisee or to his representatives, or to the proper gurrogate, the fact that after the death of an heir a will was found among comparatively worthless papers in his house does not show concealment, within the meaning of the statute, where, after the death of the testator, it was put in evidence in an ac. tion to set aside a subsequent will, and all the heirs knew of its existence and contents.-Fox V. FEE, N. Y., 60 N. E. Rep. 281.

43. MASTER AND SERVANT-Contributory Negligence. - Plaintiff, a brakeman, attempted to uncouple two cars with a lever provided for the purpose; but the coupling was out of order, and he could not thug draw the pin. He attempted to draw it with his hand, and while walking between the moving cars his foot was caught between the rail and an unblocked guard rail, whereby be was injured. Held, that plaintiff's con. tributory negligence, or assumption of risk incident to the condition of tbe guard rall, was a question for the jury.-TROTT v. CHICAGO, ETC. RY. Co., Iowa, 86 N. W. Rep. 33.

and stone to be deposited and remain on and near its track, and that it also negligently operated an engine with a defective pilot. While respondent, in the per. formance of his duties as a brakeman, was riding in the cab of the engine, it sapk upon the yielding road. bed, and tbe defective pilot struck into the gravel and stone, causing a stone to be thrown against the cab window of the engive, breaking the glass thereof, causing a piece of it to enter and injure respondent's eye. Held, that the acts stated were the proximate cause of the injury.- BAKER V. GREAT NORTHERN RY. Co., Minn., 86 N. W. Rep. 83.

36. INSORANCE-Excessive Incumbrance.- Where an Insured procured a loan on the insured property. with the proceeds of which he paid off incumbrances existing at the time the policy was issued, and later placed an additional mortgage on the property, ag. gregatípg $3,230, the property will not be deemed to have been incumbered for more than $3,000, within the terms of the policy, $400 of the mortgage having been paid before the loss occurred.-MCKIBBAN V. DES MOINES INs. Co., Iowa, 86 N. W. Rep. 39.

37. INTOXICATING LIQUORS-Liquor Tax CertificateAction on Bond.-Liquor Tax Law, $ 23, provides that no person who has been convicted of a felony shall traffic in liquor or be granted a liquor certificate. An application for a liquor license falsely stated that the applicant bad never been convicted of a felony. Held, that a surety on his bond, conditioned that the princi. pal would not violate any provision of the liquor tax

did not guaranty the truth of the statement, and, in the absence of knowledge of its falsity, was not liable for the acts of the principal in selling liquor un. der the certificate, which, at the election of the State. wag void ab initio.- LYMAN V. SCHERMERHORN, N. Y., 60 N. E. Rep. 324.

38. LANDLORD AND TENANT-Lease – Coal Lands, Plaintiffs' lease of coal lands to defendants gave them power to mine and remove all underlying coal. The refuse from the various sbatts was to be dumped on the surface of plaintiffs' land. A right of way over the surface for railway track, etc., within specified limits was given to defendants at a certain rental, with privilege to continue such use at their option after the coal had been exhausted from plaintiffs' land. The surface wa's reserved by plaintiffs for agri. cultural or other purposes, subject to the rights granted by the lease. Held, that defendants had the rigbt, under the lease, to use the land to remove coal from adjoining land, and hence plaintiffs could not recover additional compensation therefor.-MADISON F, GARFIELD COAL CO., Iowa, 86 N. W. Rep. 41.

39. LANDLORD AND TENANT - Lien for Rent.-In an action for the conversion of grain on which plaintiff claimed a landlord's lien, the fact that plaintiff had Deglected to exbaust other property of the tenant on which be had a lien was no defense where, after giv. lng credit for the value of this property, there was still a balance due greater than the amount of plaintiff's recovery.-DERMIDY V. INTERSTATE GRAIN CO., Iowa, 86 N. W. Kep. 80.

40. LIFE INSURANCE-Surrender-Rights of Bene. iciary.- A beneficiary cannot enforce by action at law an original policy by treating payments made on a substituted policy issued without her knowledge, on surrender of the original, as payments made on the latter, and inuring to ber benefit.-WEATHERBEE V. NEW YORK LIFE INS. Co., Mass., 60 N. K. Rep. 381.

41. LIMITATIONS-Running of Statute - Administra. tor's Bond.- The statute of limitations commences to run against a cause of action from the time it accrues, or from the time when the holder thereof has the right to apply to the court for relief, and to commenco proceedings to enforce his rights. The statute of lim.

44. MASTER AND SERVANT - Negligence.--Plaintiff worked as a common laborer for defendant several years, and two weeks before the accident delendant's superintendent directed plaintiff to wash out a gewer hole in the slaughter house. The fireman adjusted the hose and nozzle, and, with the assistance of two men to handle the hose, plaintiff entered the hole and washed it out. The next week plaintiff applied to the guperintendent for men to assist in handling the bose to wash out the hole, and was told that he did not need help, but must do it himself. The sewer was not cleaned at that time, as the pipe was burst, and the next time plaintiff went to clean it he attached the hose, took the nozzle, and went into the hole; and when the water was turned on the hoge became up. manageable, and he was struck and injured by the nozzle. The water had a pressure of 80 pounds, with which pressure it required three men to handle the hose. Held, that the questions of defendant's negli. gence, and whether plaintiff assumed the risk or was guilty of contributory negligence, were for the jury.DIEZI V. G. H. HAMMOND Co., Iod., 60 N. E. Rep. 353.

45. MASTER AND SERVANT-Vice-Principal - Negli. gence.-The plaintiff and S, the servants of the de. fendant, were assigned the duty of loading a pile. driver hammer upon a wagon. In doing so they used | a tree standing by as a tackle post, which was up.

rooted, Pell, and injured the plaintiff, by reason of the force applied in an attempt to swing the hammer upon the wagon by the use of the tackle. S selected the tree and directed the work as foreman. Held, upon the special facts of this case, that the tree was not an appliance furnished by the defendant, but a mere temporary instrumentality provided by the servants themselves during the progress of the work, and that in selecting the tree 8 was not acting as a vice-princi. pal.-BELL V. LANG, Mipn., 86 N. W. Rep. 95.

46. MECHANIC'S LIEN-Statement - Amendment.-A mechanic's lien statement cannot, as to third persons who have acquired rights and interests in the land covered thereby adverse to the lien claimant, be amended to the prejudice of the rights of such third persons after it has been filed in the ofice of the register of deeds, and after the expiration of the time limited by statutes for filing of the same.-MEEHAN V. ST. PAUL, ETC. Ry. Co., Minn., 86 N. W. Rep. 19.

solved, attorney's fees incurred by the mortgagee in gutter of wbicb a spout led to a groove in and cross. removing an injunction were reasonably necessary ing the sidewalk. The water flowing through the and hence rightfully allowed from the proceeds on spuut formed ice on the walk, rendering it dangerous foreclosure. A fee paid an auctioneer in selling to public travel, and causing injury to plaintiff. Held, property under foreclosure proceedings which is the that so maintaining the spout constituted a public ordinary and customary charge for such services nuisance, and defendant was not exonerated by tbe without express agreement, and under the belief that fact that the conditions existed when she purchased auctioneers were entitled to such amount, is properly the property, and no previous complaint had been allowed, though there was reasonable probability made, since, the nuisance being public, her predeces. that an auctioneer might have been found who would gor could not have acquired a right to maintain it.have conducted the sale for a much lower fee.- BANGS LEAHAN V. COCHRAN, Mass., 60 N. E. Rep. 388. v. FALLON, Mass., 60 N. E. Rep. 403.

55. PARK COMMISSIONER8-Powers-Conveyance of 48. MONICIPAL CORPORATION - Action on Contract Land – Exemption from Taxation - Contract.-Laws Mandamus.- Where plaintiff agreed to furnish a cer. 1889 confers authority upon the board of park com. tain number of lights for the streets, and the town missioners of the city of Minneapolis to contract for agreed to pay a certain rate per year, payments to be the conveyance of land to the city for park purposes made every month, but not in advance, and after a in consideration of the exemption of other contiguous certain month the town refused payment, not because lands of the owner from assessments for park pur. it lacked funds, but asserting that the contract was poses, to the amount agreed upon. Such exemptions void, plaintiff's action for the amount due was prop. are not limited by the act to & single assesssment erly brought on the contract, instead of by applica made with reference to the property so purchased, tion for mandamus.-TOWN OF GOSPORT V. PRITCHARD, but include all assessments, present or future, and Ind., 59 N. E. Rep. 1038.

also installments not yet entered for collection, but 49. MUNICIPAL CORPORATIONS-Contract--Signature.

which have been assessed prior to the execution of -A contract for lighting streets, purporting to be the

the contract.-STATE V. DISTRICT COURT OF FOURTH contract of the town, and signed by one as president

JUDICIAL Dist., Mion., 86 N. W. Rep. 15. of the board of trustees, and attested by the clerk, and 56. PARTITION - Remainder8.-Testatrix devised her entered on the proceedings of the board of trustees, is house and lot to her daughter, subject to the condition binding on the town, and is not merely the contract of that, if such daughter died before eitber of her grand. the persons whose names are signed.-TOWN OF Gos. children, all of the legacies given to the daughter un. PORT V. PRITCHARD, Ind., 59 N. E. Rep. 1058.

der the will should revert to the grandchildren. Held

that, in the absence of any intention to restrict the 50. MUNICIPAL CORPORATIONS - Heavy Teams-Un.

alienation, the bouse and lot descended to the grandreasonable Ordinance.-An ordinance of the board of

children in pareels, for which partition might be park commissioners of the city of Minneapolis pro

maintained.-PULSE V. OSBORN, Ind., 60 N. E. Rep. vides that no vehicle whicb, together with its load

374. weighs more than 2,000 pounds, and which is in use for carrying goods, merchandise, building material, ma 57. PARTITION -- Remainder Men.-A remainder man nure, dirt, earth, or other article or commodity, and is not entitled to recover of his fellow remainder-men wbich has tires less than six inches in width, such for improvements of the property made by him dur. shall pass or enter upon any park or parkway. Held, ing the occupancy of the lite tenant, as the remain: as applicable to a parkway, the ordinance Is void, be der.men were pot tenants in common at the time the cause unreasonable, and in its effect prohibitive of improvements wore made, such relation not existing traffic thus classified.-STATE V. ROHART, Mion., 86 N. until they were entitled to possession.-PULSE V. 08W. Rep. 93.

BORN, Ind., 60 N. E. Rep. 374. 51. MONICIPAL CORPORATIONS-Injuries to Traveler 58. PENAL STATUTES - Action to Enforce a Penaltyon Highway.-Plaintiff's horse was frightened by a Limitation.-Gen. Laws 1896, chi 234, $ 4, allowing » workman, employed in constructing a street in de years for bringing an action on a specialty, and not fendant city, dumping stone on the wooden platform chapter 288, § 8, allowing one year for bringing Suits of a stone crusher, and the escape of steam from the founded on any penal statute, is the statute of limita. crusher, which caused a runaway, and the injuries for tions applicable to an action authorized by chapter which plaintiff sued. The street on which the work 180, $ 22, to enforce the individual liability of stock was being done was laid out with two roadways, and holders for the debts of the corporation in case of the road on which plaintiff was driving was open to non-performance of statutory duties, since the action, travel, though this fact was contradicted. Held sufli though of a penal character, is not an action to en. cient to justily refusal to direct verdict for defendant, force a penalty, within the meaning of the words requested on the ground of plaintiff's assumption of "penal statute," as used in chapter 288.-KILTON F. the risk.-BUTMAN V. CITY OF NEWTON, Mass., 60 N. E.

PROVIDENCE TOOL CO., R. I., 48 Atl. Rep. 1039. Rep. 401.

59. PHYSICIANS AND SURGEONS - Failure to Answer 52. MUNICIPAL CORPORATIONS - Obstruction of Call-Liability.-A physician, licensed to practice Streets.-Evidence that the road supervisor author. medicine under Act 1897, p. 265, and Act 1899, p. 247, au. ized defendant to erect scales in a street is not admig.

thorizing the licensing of pbysicians found to possess sible in an action for injuries received because of such the necessary qualifications, etc., is not liable for scales, since the road supervisor had no authority to arbitrarily refusing to respond to a call, though he is grant such right, and evidence of an ordinance au

the only physician available.-HURLEY V. EDDINGthorizing defendant to maintain stock yards within FIELD, Ind., 59 N. E. Rep. 1058. the limits of a municipal corporation, but not on its streets, is immaterial, in an action for a personai in.

60. PHYSICIANS AND SURGEONS – Negligence-Damjury resulting from the maintenance of scales in the

ages.-Plaintiff, a farm band, was compelled to have street.-RUPP v. HOWARD, Iowa, 86 N. W. Rep. 38.

his fingers amputated. Defendant, a physician, per

formed the operation. Afterwards he refused to 53. NEGLIGENCE- Dumping Stone.-Dumping stone further attend him, and amputation of the arm be. on the wooden platform of a stone crusher, and the

came necessary. Plaintiff gued defendant for degli letting off of steam from the crusher, just as a horse | gence. Proof was given, over defendant's objection, being driven along a roadway, 25 feet away, was op of what plaintiff earned before and after the loss of nosite.

mort a And. Ingarm. Defendant contended that nrnnt should be

tion was given to such difference in physical perfec. tion.-RICH V. MOORE, Iowa, 86 N. W. Rep. 52.

61. PLEADING AND PRACTICE - Common Law.-In pleading the common law of another State it is suf. cient to state as a fact what the law is, witbout getting out decisions of the courts. Decisione, opinions, and customs constitute the evidence of the law.-ORANDALL V. GRBAT NORTHERN R. CO., Minn., 86 N. W. Rep. 10.

62. PLEADING AND PRACTICE – Equitable ActionTrial by Jury. - Where the heir of a graptor, who had deeded land to trustees for the erection and mainte. nance of a library, sought to rescind the deeds on the ground that the graptor was not of sound mind at the time of the execution thereof, and, furtber, tbat the grantees exercised undue influence or fraud, and prayed in her complaint for an accounting, the action was an equitable one, and hence plaintiff was not en. titled to a trial by jury as a matter of right.-CARPEN. TER V. WILLARD LIBRARY TRUSTEKS, Iod., 60 N. E. Rep. 365.

63. PLEDGE - Warehouse Receipts.-Where a ware. house receipt has been transferred as collateral, the pledgee bes the right to take possession of the prop erty on the surrender and cancellation of the receipt, subject to the lien of the warehongeman for storage, but is not compelled to do so or pay the charges on the property.-DRIGOS V. DEAN, N. Y., 60 N. E. Rep. 336.

64. PUBLIC SCHOOL-Detention of Minor.- Where the return of the State superintendent to the writin such a case shows that his detention of a female minor child is based upon a finding of the probate court that she possessed proper qualifications of age, health, and intelligence; that she was neglected; that her mother is hopelessly insane and detained in the State hospital; that her father is unable to and does not care to support her, in consequence of which she is on the street, and in peril of health and morality,-the order of the probate court committing such walte to the public school is valid, and justifies her detention by the superintendent of that institution, under sec. tion 3, cb. 210, Gen. Laws 1897.-STATE V. MERRILL, Mind., 86 N. W. Rep. 89.

65. REAL PROPERTY - Action to Quiet Title.- Where the title to real estate is in a husband and wife, and the latter dies, and the former gues to quiet title as against her beire, thougb no administration has been granted on her estate, and the time therefor bag not expired, the heirs, who defend by filing a cross bill to partition the land, cannot join therein an application for the division of personal property owned by the wife, since such heirs are not evtitled to share in the possession and control of tbe personal property until after an administration, or the expiration of the time therefor.-RITCHIE V. BARNES, Iowa, 86 N. W. Rep. 48.

66. REAL PROPEBTY-Taxeg- Payment by Co-Tenant. - A tenant in common paid taxes on the property dur. ing the tenancy of his mother, lite tenant thereof, but it did not appear that be paid them on account of the failure of bis mother to do so, or that he pald them after detault. Held, that he would not be allowed for the taxes in partition proceedinge, since it was the life tenant's primary duty to pay them.-BOOTH V. BOOTH, Iowa, 86 N. W. Rep. 51.

67. RECEIVERS-Appointment Pendente Lite-Prerequisites.-Burng' Rev. St. 1894, § 1236, provides that a receiver may be appointed in all actions where it is shown that the property in controversy is in danger of being lost, removed, or injured, or where, in the discretion of the court, it may be necessary to secure

the risk was hazardous, that they were making exten. sions of the plant, and that the property was llable to damage if permitted to remain in their possession. Held, that the court was justified in appointing a re. ceiver to manage the property pending an action to enforce specific performance of such contract.- MEAD V. BORK, Ind., 60 N. E. Rep. 338.

68. RECEIVERS-Aggets.-Wbere one, in obedience to an order of a court of competent jurisdiction, bas turned over to a receiver appointed by it assets in bis hands belonging to an insolvent, he cannot be com. pelled, in a suit in another court, between different parties, to account therefor.-CARTER V. DIME SAV. BANK, Neb., 86 N. W. Rep, 29.

69. REPLEVIN-Body of Pead Dog.- A comnlaint in replevin to recover the body of a dead dog alleged the wrongful taking and detention, and tbat tbe body was of the value of two dollars, in that the bide was of the value of one dollar, and tbe carcass, exclusive of the bide, of the value of one dollar lor fertilizing pur. poses. Hold, that the complaint stated & cause of ac. tion, under Burps' Rev. St. 1894, § 1286, providing that, when any personal goods are wrongfully taken or up. lawfully detained, the owner may bring an action for the possession thereof, since dogs are property, and the ownership is not lost by the death of the animal, especially if the body is of value.- VAXTREKSE V. MCGEE, Ind., 60 N. E. Rep. 318.

70. REPLEVIN-P'leading-General Denial.- A plea of general denial is sufficient to entitle the defendant to a return of the goods on a judgment in his favor.D'AROY V. STEUER, Mass., 60 N. E. Rep. 405.

71. RES ADJUDICATA.-Where plaintiffs sued defend. apts to enjoin a specified use of leased lands as pot witbin a lease, submitting the question for determipa. tion whether such use was proper under the lease, and the case was dismissed on it merits, such adjudi. cation will constitute a bar to a subsequent suit by plaintiffs against defendants presenting the same question with reference to defendants' rights upder the lease.-MADISON V. GARFIELD COAL Co., Iowa, 86 N. W. Rep. 41.

72. SALES -Warranty-Time.- Where a contract of sale of macbiney gave the purchaser a certain time in which to accept and approve a governor which was part thereof, and the evidence showed that before the expiration of the period he notified the seller that the governor was not satisfactory, leading to negotia. tions on the part of the seller to have the detect remedied, pending which there was nothing to show that elther party considered the time for acceptance as running, no acceptance will be implied on the part of the purcbaser at the end of the time limited in the contract.-JAMES LEFFEL & Co. v. PIATT, Mich., 86 N. W. Rep. 66.

73. SURETIES – Llabilities. - Where a bond of an agent to his principal does not contain a general pro. | vision to answer for the default of the agent, and a

provision creating a specific liability in case of such default is defective in leaving the amount blank, the sureties are not liable thereon.-SPRING GARDEN INS. CO. V. LEMMON, Iowa, 86 N. W. Rep. 35.

74. TAXATION-Assignment for Benefit of CreditosListing by Assignee.- Personal property in the pos. session of an assignee for the benefit of creditors of a manufacturing corporation, which is not being reduced to money for distribution among the creditors of the corporation, but is being held and operate under the orders of the insolvency court, and at t joint request of the creditors of the assignee, in the

[ocr errors]
« ПредишнаНапред »