Master and servant; contributory negli gence in entering or remaining in an employment:-(I) When the servant's action is barred: (a) Introductory; (b) servant's knowledge as an element of the defense, generally; (c) contributory negligence held to be a question for jury where servant's knowledge of defects only is shown; (d) contributory negligence inferred from servant's knowledge of defects and resulting dangers; (e) contributory negligence inferred from servant's knowledge of defects alone; (f) the rationale of the principle; (g) knowledge of danger held to be not necessarily a bar to the action; (h) Missouri doctrine as to the effect of the servant's continuance of work with knowledge; (i) failure of servant to report defect; (j) duty of the servant to quit the employment when he ascertains that he is exposed to an abnormal danger; (II.) relation between the defenses of assumption of risks and contributory negligence: (a) introductory; (b) logical independence of the two defenses; (c) assumption of risk a conclusive defense irrespective of whether servant exercised due care; (d) contributory negligence in respect to risks assumed; (e) defenses confused owing to inaccuracies of terminology; (f) doctrinal confusion between the defenses; (g) concluding remarks. 33 Liability for defective car causing injury to employee. 640 MUNICIPAL CORPORATIONS. appear that the current revenues of the city Liability on Railroad-Aid Bonds, see will not be sufficient to pay the indebted ASSUMPSIT, 1. ness for rent each year, together with all other expenses for which the city is liable. South Bend v. Reynolds (Ind.) 795 8. An unconstitutional exemption from taxation is not effected by an agreement by a municipal corporation to pay the taxes assessed against a water company in return for a supply of water which constitutes an ade quate consideration for the agreement. Maine Water Co. v. Waterville (Me.) 294 Bonds of, see BONDS; COURTS, 11. Agreement to Pay Tax of Water Company, see CONTRACTS, 13. See also CONSTITUTIONAL LAW, 2; EsTOPPEL, 3; INJUNCTION, 4; STATUTES, 8; TAXES, 1; VACCINATION. 1. The duty to pay orders issued by a de facto town which is subsequently dissolved in a direct proceeding for that purpose devolves upon the towns from which the ter- 9. A municipal corporation having auritory was taken and to which it returns aft-thority to contract for a water supply may er the dissolution. Gilkey v. Howe (Wis.) agree to pay a portion of the taxes assessed 483 for any year against a water company, in 2. To render enforceable orders issued by addition to the specified amount for water a town organized under statutory authority, to be supplied by the company, if the considthe requirements of the statute need not be eration for the agreement is reasonably adeshown to have been substantially complied quate, and the contract is reasonable and with, it being sufficient to show a valid law fair and for a reasonable length of time. authorizing the incorporation, and a bona Maine Water Co. v. Waterville (Me.) fide attempt to comply with it. Gilkey v. Howe (Wis.) 483 294 10. A municipal corporation which leaves in a public street near a playground trenches 3. A penal ordinance prohibiting any col-filled with deadly gas, with easy means of ored netting or other material which has a access to the bottom, without notice or tendency to conceal the true color or quality warning of the danger, may be liable for inof the goods to be used for covering any box, jury inflicted by the gas upon persons who basket, or other package of fruit, berries, or go into a trench for a ball accidentally there, vegetables of any kind, is a vexatious and although the particular consequences of the unreasonable interference with and restric- negligence are not, and could not by any ortion upon the rights of dealers in fruit, and dinary prudence be, anticipated. Corbin v. is therefore void when based only on the genPhiladelphia (Pa.) eral police power of the city. Frost v. Chicago (Ill.) 657 5. Bonds do not contravene the limitation of municipal indebtedness, which are issued to take up what the city is estopped to deny are just debts, although the total indebtedness exceeds the permitted amount. Huron v. Second Ward Sav. Bank (C. C. App. 8th C.) 534 715 NOTES AND BRIEFS. Contract for exemption from tax; to pay tax of corporation. tax. 295 De facto; liability for town orders. 483 Exemption of private corporation from 604 Effect of ordinance as to street railway beyond city limits. 654 Liability for negligence of servants 718 Restrictions on indebtedness of. 795 NEGLIGENCE. Of Plaintiff in Following Suggestion of Presumption of, from Fire, see EvI- Submitting Question of, to Jury, see See also BAILMENT; ELECTRICAL USES; 6. That the indebtedness of a city was temporarily increased beyond the prescribed limit by the sale of bonds and failure immediately to apply the proceeds to retire existing indebtedness will not defeat them in the hands of a bona fide purchaser, where they might have been exchanged directly for the existing evidences of debt, so that there would have been no unlawful increase, which 1. Going into a trench filled with deadly method duty required the municipal author-gas, negligently left in a public street by a ities to pursue. Huron v. Second Ward Sav. municipality, to rescue one who, having gone Bank (C. C. App. 8th C.) 534 there to recover an article accidentally dropped, has been overcome by the gas, is not, as a matter of law, such negligence as will relieve the municipality from liability for the rescuer's death in case he also is overcome and dies. Corbin v. Philadelphia (Pa.) 7. A city does not become indebted beyond its constitutional limit by a contract under which a person is to erect upon its land a city hall, to be leased to the city at an agreed and fair rental for a term of years, with the option to purchase the building, or, if this is not exercised, with an option to the lessor to remove it or buy the land at its statutory appraised valuation, where it does not 715 2. The rider of a bicycle is not required to give way to a heavily laden wagon when turning a corner and keeping on the right side of the street, as required by the law of NONRESIDENTS. 764 3. One riding a bicycle, as he approaches a corner keeping on the right side of the street, has a right to assume that the driver of a wagon approaching the corner from another direction will keep to the right if they Keet, so that the bicycle can pass between he wagon and the curb. Foote v. American l'roduct Co. (Pa.) 764 4. A boy on a bicycle, who is placed in a dangerous position by the negligence or carelessness of the driver of a wagon, will not be held to the same strict measure of care as under ordinary circumstances, in attempting to release himself from the perilous situation. Foote v. American Product Co. (Pa.) NOTICE. Of Injury, see INSURANCE, 21, 22. See also ACTION OR SUIT, 3, 4; BILLS NOTES AND BRIEFS. 108 OPINIONS. 764 Voluntarily incurring danger to save life of another person, as contributory negligence:-(I.) General rules; (II.) illustrations; (III.) exceptions; (IV.) effect of previous contributory negligence; (V.) summary. 715 Contributory; as affecting statutory lia626 bility. NEGOTIABILITY. See BILLS AND NOTES, 4-6. NERVOUS SHOCK. See EVIDENCE, 20-22. ORDERS. Issued by De Facto Town, see MUNICI- ORDINANCE. See CONSTITUTIONAL LAW, 2; Evidence, 12; INJUNCTION, 4; MUNICIPAL CORPORATIONS, 3. PAID-UP POLICY. See DAMAGES, 4; EVIDENCE, 24; PLEAD PARDON. NEWSPAPERS. See also FREEDOM OF SPEECH AND PRESS; INDICTMENT, 2; TRIAL, 7. The gist of the offense committed by a violation of Conn. Pub. Acts 1895, p. 558, prohibiting the sale, or offering for sale, of papers, books, or magazines devoted to the publication of criminal news, police reports, and pictures or stories of crime, is the massing of such immoralities in one publication, whatever the motive, and that the paper is mainly devoted to such matters. State v. McKee (Conn.) 542 NEW TRIAL. NOTES AND BRIEFS. 1. A pardon is an act of grace, proceeding from the powers intrusted with the execution of the laws, which exempts the individual upon whom it is bestowed from the punishment which the law inflicts for the commission of a crime. It is a remission of guilt, and a declaration of record by the authorized authority that a particular individual is to be relieved from the legal consequences of a particular crime. Territory v. Richardson (Okla.) 440 2. A pardon extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. Territory v. Richardson (Okla.) 440 3. A territorial legislature has no power to impose limitations upon the manner in New trial; first and last days in comput- which the pardoning power shall be used, set ing time for. 225 up, alleged, or called to the notice of the 440 court as a defense. Territory v. Richardson of division orders by which partners, by (Okla.) agreement, have had pipe lines deliver to each of them a certificate of his share of oil produced from their wells. Childers v. ly (W. Va.) 4. A pardon granted by the governor in the exercise of his constitutional authority is not invalid because it was not procured in pursuance of statutory regulations. Territory v. Richardson (Okla.) 440 5. In order to impeach a pardon for fraud it must be done in a direct manner, and not collaterally by contesting its validity when set up as a bar to a prosecution. Territory v. Richardson (Okla.) 440 6. The benefit of a pardon as a bar to a prosecution is not waived by a plea of not guilty, or by other steps taken in the proceedings, but the pardon may be set up at any time or stage of the proceedings before the execution of the sentence. Territory v. Richardson (Okla.) 440 Partition of oil and gas contained in land, the co-owners of which do not own the surface of the land, cannot be made by any assignment or allotment of sections of the land below the surface, but can be made only by sale and division of the proceeds. Hall v. 464 Vernon (W. Va.) terests. NOTES AND BRIEFS. 464 Nee 468 5. A partner is personally accountable in an accounting between the members for any loss which comes to the firm by his culpable negligence, breach of duty, or wrongful conduct, or by his diversion of the social property from the firm business to other business. Childers v. Neely (W. Va.) 468 6. A decree for dissolution of a partnership and full account should be granted, but not one for merely a partial account, where the bill demands a dissolution and abundant cause therefor is shown, as in case the business is hopeless of success and prosperity, and one partner has the property entirely in his hands and management, excluding the other therefrom. Childers v. Neely (W. Va.) PATENTS. 468 Enjoining Threat to Sue for Infringe- PEDDLERS. See also LICENSE, 2, 3. NOTES AND BRIEFS. Peddlers; who are; regulation of. 448 PHYSICAL EXAMINATION. PHYSICIANS. 1. A plaintiff in an action for negligent injuries acts at his peril in following the suggestion of defendant's physician, who has been sent to examine him, to try standing on Partition; by bill in equity; of mining in- the injured leg after he and his physician have stated that he cannot bear his weight upon it. Pearl v. West End Street R. Co. 826 (Mass.) PARTNERSHIP. What Constitutes, see LANDLORD AND 1. A mining partnership is created where tenants in common or joint tenants of an oil lease or mine unite and co-operate in working it. Childers v. Neely (W. Va.) 468 2. Those who own a majority interest control the management of a mining partnership in all things necessary and proper for its operation, if the members cannot agree in the management. Childers v. Neely (W. Va.) 468 3. A mining partnership is not dissolved by the sale of the interest of one member to another member or to a stranger, although this would dissolve an ordinary partnership. Childers v. Neely (W. Va.) 468 4. Partners have a lien on the social property for advances or a balance due them after debts, but not on the property or product of the business after it has been divided between the members in severalty, as in case plaintiff to proof of execution of the instrument sued on, as provided by ¶ 34 of the Illinois practice act, cannot be made by an agent of defendant. Warman v. First Nat. Bank (Ill.) 412 2. A fright and nervous shock sustained by a passenger on account of the horrors incident to a collision, while remaining on a railroad embankment after climbing out of a deep trench, must be deemed general, and not special, damages, which are recoverable under general allegations as to bodily pain and mental anguish caused by the violence of the collision and by being forced to alight from the coach. Denver & R. G. R. Co. v. Roller (C. C. App. 9th C.) 77 3. A complaint which sets forth a conspiracy to commit a wrong and acts pursuant thereto, resulting in injury to the plaintiff, states a case in tort, and not for breach of contract, although the wrong done was in violation of a contract. Gatzow v. Buening (Wis.) 475 4. An exception to the allegations of a petition on the ground of indefiniteness should be sustained where it merely sets out the conclusions of the pleader as to the legal effect of an ordinance prescribing regulations for the suspension of electric wires, and fails to state in terms or in substance the provisions of the ordinance. Brush Electric Light & P. Co. v. Lefevre (Tex.) 771 8. It is not proper to bring into a case, by supplemental complaint, new facts which have arisen since the action was commenced, and which by themselves constitute a new and independent cause of action, without reference to the facts alleged in the original pleading. Swedish American Nat. Bank v. Dickinson Co. (N. D.) 285 Departure. 9. A judgment sustaining a cause of action on an insurance policy does not depart from the cause of action pleaded because it holds that there has not been any forfeiture of the policy by nonpayment of premiums, for the reason that the insurer had not given notices required by a statute, although that statute is not pleaded by either party. Mu POOR DEBTORS. NOTES AND BRIEFS. Poor debtors; first and last days in computing time in case of. POSTOFFICE. 242 Mail Agent Throwing Packages from Car, see CARRIERS, 1, 2. PREFERENCE. See BANKS, 3. PRESIDENT. See CORPORATIONS, 2. PRESUMPTION. That Word Used in Same Sense, Throughout Statute, see STATUTES, 6. See also EVIDENCE, 6-11. |