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over the subject, and to authorize them to a renewed adverse possession will not reuse the power to license express companies ceive aid from or be tacked to a former as a means of taxing such companies if possession to piece out the time allotted by they saw proper to do so.-Adams Exp. the statute for acquiring title by adverse Co. v. City of Owensborough, (Ky.) 370. possession.-Brown v. Hanauer, (Ark.) 27.
2. The act of March 2, 1870, (1 Acts Ky. 3. Adverse possession is not acquired by 1869–70, p. 33,) imposes a tax on foreign ex- marking off a boundary around land, unpress companies, and provides that they less the claimant, or some one for him, reshall not be required by any county, city, side on the land within such boundary, or other corporation to take out any other and claims up to the boundary adversely. or additional license, or pay any other or -Sanders v. Barbee, (Ky.) 528. additional tax for the right or privilege of 4. Actual, continuous, adverse possesconducting business in or through such sion of land for any period of 15 years, county or city. Held, this act was not ex- whether the 15 years be next before the inpressly or impliedly repealed by a subse- stitution of the suit to recover the land, or quent act (1 Acts Ky. 1881, p. 817, SS 36, 37) at any other time, will confer a perfect title, conferring on a particular city the power and toll the right of entry under an elder to license express companies. The act of patent.-Id. 1870 shows an intention upon the part of Running of the statute-Personal the state to exempt foreign express com
rights. panies from local taxation upon the pay. ment of the state tax, and that intent is not
5. The act of a town in making a conto be reversed in favor of a particular city tract ultra vires, and afterwards assessing by mere implication from the general terms the property, and continuing to assert its of a subsequent act, so as to enable the power to bind the property holders until city, under that act, to impose a license on the court decided that it had no such ously paid the license to the state required and Gen. St. Ky. c. 71, art. 3, § 6, providing a foreign express company that had previ. power, does not constitute fraud, actual or
constructive, as against the contractor; by the act of 1870.-Id.
that in actions for relief for fraud the
cause of action shall not be deemed to have LIENS.
accrued until the discovery of the fraud,
does not apply.-Hahn v. Town of BelleSee, also, Mechanics' Liens.
vue, (Ky.) 132. Attachment, equitable interest, see Attach 6. The probate allowance of a claim is a ment, 1.
judgment within the meaning of the ArAttorney's lien for services, see Attorney kansas statute fixing the period of limitaand Client, 4.
tion of judgments at 10 years; and, while Landlord's lien, see Landlord and Tenant, the statute may not operate to bar such a 4-7.
judgment while the estate is in course of Vendor's lien, see Sale, 2.
administration, yet, as to a cause of action
which accrued upon the discharge of the LIMITATION OF ACTIONS. that time, and bar the demand at the end
administrator, the statute will run from Adverse possession, see, also, Ejectment, 2. of 10 years.--Brown v. Hanauer, (Ark.) 27. Guardian, limitation of suit on bond, see
Real rights. Guardian and Ward, 7.
7. In case of a grant of land under MexMortgage, limitation of power of sale, see ican law to a colony for the benefit of the Mortgages, 11.
citizens of a certain place, the statute of Judgment, suit to revive, see Judgment, 13. limitations will begin to run immediately Retroactive effect of, see Constitutional upon a claim of one of such citizens to the Lar, 6.
tract, based upon an earlier grant to him. Taxation, suit for failure to list property, -Sydeck v. Duran, (Tex.) 264. see Taxation, 10.
8. Under Gen. St. Ky. c. 71, art. 3, § 6,
providing that “in actions for relief for Adverse possession.
fraud the cause of action shall not be 1. A party claiming a tract of land under deemed to have accrued until the discovery color of title given by a deed, which also of the fraud, but no such action shall be gives him a good title to other land, will brought ten years after making the connot be deemed in adverse possession there- tract or perpetration of the fraud,” if a of by his possession and occupation of that fraudulent or voluntary conveyance is perland included in the deed of which he has mitted to stand for 10 years without ata good title.-Word v. Box, (Tex.) 93. tack, the grantee under it acquires a per
2. When actual possession of land by an fect title, which he can enforce by action adverse claimant ceases, the constructive against all persons.-Brown v. Connell, possession of the legal owners revives, and (Ky.) 794.*
9. A husband having instituted suit to tract of land, part of which plaintiff claims set aside a will made by his wife, he sub- to own, defendant relied on the statute of sequently agreed with his son to dismiss limitations as a bar to the action. Held, the suit in consideration that he should be that he was not estopped to plead the allowed the use of the homestead which statute by the fact that he had previously belonged to the wife and one-half the pro- misrepresented to plaintiff (innocently and ceeds of the real estate during his life; without fraudulent intent) the true division the son and daughter to have the other line between their tracts, so that plaintiff one-half. The father and children having was induced to believe that the right of acquiesced in this agreement for over 20 way did not touch any part of his land, and years, held, neither the father nor the did not discover otherwise until after two daughter, who had in the mean time mar- years from the date of payment of the ried, could maintain an action to set aside money to defendant; and that the fact that the agreement.-Riggs v. Riggs, (Ky.) 423. plaintiff resided at a greater distance from
it than did defendant did not excuse bis Disabilities and exceptions.
want of knowledge about it.-McFaddin v. 10. In proceedings to open an adminis. Prater, (Tex.) 306. trator's account, and for a further accounting, when it appears that the heir and dis- Acknowledgment. tributee was an infant when the adminis.
15. Where the maker of a note, barred trator settled his accounts, and died in in- ! by the statute of limitations, writes upon fancy, and an administrator to such heir's it, “I hereby waive my right to rely upon estate was not appointed till 10 years after: or plead the statute of limitations as to the wards, the statute of limitations does not within note,” this is a sufficient acknowl. begin to run in favor of the administrator edgment of the justice of the debt, and of the ancestor until such appointment, willingness to pay it, to imply a promise to and no laches can be imputed to the heirs pay, and will revive the debt, although of decedent in their action.-Sorrels v. there was no new consideration for such Trantham, (Ark.) 198. 11. In an action to set aside and cancel 896.*
indorsement.-Jordan v. Jordan, (Tenn.) certain deeds alleged to have been exe 16. A written waiver of the right to cuted by a trustee contrary to the condi- plead the statute of limitations is not con. tions of his trust, the property having trary to public policy, but is valid, and will been conveyed by the mother of the plain estop the maker from pleading the statute. tiffs to the trustee in trust for all her chil
-Id. dren, when it appears that one of the plaintiffs was a married woman at the time Taxes. of the conveyance by the mother to the trustee, and that she so continued until the
17. The statute of limitations will run institution of this suit, the statute of lim- against a municipal corporation, to operate itations could not run against her. --Smith as a bar to the collection of city taxes, when v. McElyea, (Tex.) 258.
the defense thereunder is not expressly 12. The averments of the petition that taken away by statute.—Mellinger v. City the trustee and his grantees, during the of Houston. (řex.) 249. life-time of the grantor of the trust, in
18. The Texas act of July 4, 1879, (Sp. duced the grantor and the plaintiff to be- Sess. Tex. 1879, Gen. Laws, p. 15,) provid. lieve that the trust would be carried out ing "that no delinquent tax-payer shall after the grantor's death, held to be suffi- have the right to plead in any court, or in cient to prevent the running of the statute any manner rely upon, any statute of limof limitations as to plaintiff claiming under itation by way of defense against the paythe trust.-Id.
ment of any taxes due from him or her. 13. Where the full legal title to property either to the state or any county, city, or is vested in a trustee to be held for the sole town,” applies to a purchaser of property use and benefit of another, and subject to incumbered with a lien for taxes.-Id.* no other condition than that it shall be 19. In an action to recover possession of conveyed to such other person upon de land, upon the ground of plaintiff's use mand, if the right of action of the trustee and occupancy and payment of taxes to recover the property is barred by limita- thereon for more than five years, evidence tion, the cestui que trust is also barred, al- that the land was assessed for taxation though the latter may have been under against plaintiff, and the tax-roll marked disability at the time the cause of action paid” for three years, and that it was the accrued.-Collins v. McCarty, (Tex.) 730. invariable custom of the tax collector,
14. In an action by one to recover a por- when taxes were paid, to so mark on the tion of a sum of money received by an- roll, did not show, but rather tended to reother from a railroad as compensation for pel, the fact of payment for the remaining the railroad's right of way over a certain two years.-French v. Olive, (Tex.) 568.
ducting the litigation complained of, he 20. Where, in an action to subject lands knew that there was no cause of action, to the payment of a probate judgment, the and knew also that his client was acting defense is set up that the cause of action solely from illegal or malicious motives; did not accrue within 10 years of bringing and, in forming his opinion upon these suit, the burden is upon the plaintiff to matters, he has a right to act upon such inshow that he had commenced his suit formation as his client imparts, and is not within the statutory period. — Brown v. bound to inform himself elsewhere.—Peck Hanauer, (Ark.) 27.
v. Chouteau, (Mo.) 577. 21. Where an action is brought in Ken- Malice. tucky, and both parties are non-residents, 2. Mere dislike or ill will towards one by the statute of limitations of this state ap- another does not constitute malice in the plies, and the burden of proof is on the legal sense. There must be some act done party relying on Gen. St. c. 71, art. 4. $ 19, by defendant with intent to injure plain. (providing that where a cause of action tiff, and such act must be wrongful, and arises in another state between residents done without legal justification or excuse. of such state, and by the laws of that state -Peck v. Chouteau, (Mo.) 577. an action cannot be maintained thereon, no action can be maintained in this state,)
Pleading of showing that the cause of action accrued
3. The declaration must aver want of in another state between citizens of that reasonable or probable cause.—Turner v. state, and the statute there was no obstacle Turner, (Tenn.) 121. to recovery.-First Nat. Bank of Cincin. Evidence. nati v. Thomas, (Ky.) 12.*
4. Plaintiff having been indicted, along
with A., for a fraudulent conspiracy, was LIS PENDENS.
acquitted, and subsequently brought an acWhere rule applies.
tion for malicious prosecution. In that 1. A pending action to enforce a mort- action, held, that evidence of a previous ingage is notice. to all purchasers who be- dictment against A. for a similar offense come such during the pendency of the ac
was incompetent, as it did not tend to tion, of the mortgagee's rights. A husband prove plaintiff guilty upon the indictment and wife joined in mortgaging her land, complained of, or disprove malice or show and, she dying, her interest descended to probable cause on the part of defendant. her sons, from one of whom the husband Peck. v. Chouteau, (Mo.) 577. bought his interest. Held, that the interest
5. But A. having appeared as a witness so purchased was liable, along with the in the action for malicious prosecution, husband's estate by curtesy, to the mort- evidence of the indictment found against gage; especially as it appeared that the him previously to the one complained of is mortgage contained a clause of general admissible to affect his credibility, it apwarranty.-Edmunds v. Leavell’s Adm'r, peuring that he had entered a plea of guilty (Ky.) 134.
to that indictment, but the government 2. Plaintiff, in an action of ejectment,
had dismissed the proceeding without enafter his attorney had dismissed the action, tering judgment on the plea.-Id. filed in vacation a motion to have it reinstated. Afterwards, but before the defend
MALPRACTICE. ant had notice of the motion to reinstate. Evidence. the latter gave a mortgage on the premises sued for, the mortgagee accepting it in re the plaintiff is permitted to show the skill,
1. When, in an action for malpractice, liance upon the dismissal, and in ignorance of the motion to reinstate. Held, that the reputation, and standing of one as a sur: title under the mortgage was free from geon and physician, by the testimony of any lien created by the pendency of the medical experts, who were then asked and action of ejectment, and that the subse permitted to give their opinions upon the quent reinstatement of the action would material issues, on the assumption that his not affect it.-Davis v. Hall, (Mo.) 382.
diagnosis of the case was correct, the de
fendant may show, by the same experts Logs and Logging.
and witnesses, his own skillfulness and
reputation in that behalf.—Vanhoover v. Damages for breach of contract relating Berghoff, (Mo.) 72. to, see Damages, 3–5; Evidence, 10.
2. In an action against a surgeon for
malpractice in the improper treatment of MALICIOUS PROSECUTION. & dislocated bone, a question whether he
was justified in not using the “splint” Attorney's liability.
which had been practically tested, and was 1. An attorney is not liable to an action in common use in such cases, by the profor malicious prosecution unless, in con- Ifession, and in adopting and using a sub
stitute in the manner stated, or whether the decision of the county court in prothere was in this behalf a want of the ceedings for condemnation for railroad requisite and proper skill and attention or purposes; and, where the county court has dinarily bestowed in similar cases, held to dismissed the proceedings on the ground be one of fact for the consideration of the that the company has no right to maintain jury.-Id.
them, mandamus will not lie to compel the 3. An instruction to the jury that “the court to impanel a jury.-Id. defendant was bound to possess and use all To state boards and officers. the knowledge, skill, and ability that was
4. The duties imposed upon the Missouri reasonably necessary to properly treat plaintiff, and, unless the evidence showed St. Mo. 1879, $ 6594, in letting contracts
commissioners of public printing by Rev. to the satisfaction of the jury that defend. for such printing, are not purely ministeant, in the treatment of plaintiff, did use rial, but involve the exercise of such a desuch knowledge, skill, and ability, they gree of discretion
as to place them beyond should find for the plaintiff, if they further the control of a court by mandamus issued found that the
injuries complained of at the instance of a party claiming to be were the result of defendant's so failing to the lowest responsible bidder for such use such knowledge, skill, and ability,
work.-State v. McGrath, (Mo.) 846. was erroneous, as being open to the construction that the burden of proof was upon the defendant to show these facts to
Manslaughter. the jury.-Id.
See Homicide, 31-38.
MASTER AND SERVANT. Against treasurer to make payment in money, see Taration, 13.
Contributory negligence of servant, see For issue of certificate of election, see Of Negligence, 13. fice and Officers, 2.
Liability of master-Contract of reIn general—When writ lies.
lease. 1. In all cases where full and ample re 1. An agreement entered into by one lief may be had either by appeal, writ of with a railroad, upon heing employed as error, or otherwise, from the judgment, brakeman, to take upou himself all risks decree, or order of a subordinate court, incident to his position on the road, and mandamus will not lie against a road over- not to hold the railroad company liable tor seer to compel him to remove obstructions any injury he may sustain by accident or from a public road; and the fact that the collision on the trains of the road, or by person aggrieved or complaining has, by defective machinery or carelessness or misneglecting to appeal when he might have conduct of himself or any other employe done so, placed himself in such a position of the company, is not binding on him so that he can no longer avail himself of its as to relieve the company from liability for benefits, constitutes no ground for inter- an accident caused by its failure to repair ference by the writ.-State v. Buhler, (Mo.) its road.-Little Rock & Ft. S. Ry. Co. v. 68, 72.
Eubanks, (Ark.) 808.
2. The Kentucky statute relative to the 2. It is the duty of the employer to use condemnation of lands for railroad pur- ordinary care in providing for the use of poses (1 Acts 1881, p. 83) provides thaton the servant safe machinery, and premises the tiling of exceptions to the commission in safe condition, but he is not an insurer; ers' report on the value of the land, the and if the employe knows of the danger, county court “shall forthwith cause a jury and, without objection, continues to use to be impaneled to try the issues of fact them, and injury results to him, he cannot made thereby.” Held, that the action of a hold the employer liable.- Needham v. county court in dismissing condemnation Louisville & N. Ř. Co., (Ky.) 797. proceedings, on the land-owner's plea that 3. In an action by an employe against the company had no right to maintain the his employer, to recover for an injury reproceedings, as its road had, by decree of a ceived from the dangerous condition of the federal court, been placed in the hands of premises where he was required to work, a receiver, is not ministerial, but judicial, the employe must aver want of knowledge in its nature, and mandamus will not lie to on his part of the defect.-Bogenschutz v. compel the impaneling of a jury to try the Smith, (Ky.) 800. * issues.-Shine v. Kentucky Cent. R. Co., 4. The acceptance by a railroad company (Ky.) 18.
of a flat car loaded with lumber, which 3. Under the Kentucky act of April 11, projects 18 inches from the end of the car, 1882, § 6, a right of appeal is provided from does not entitle a brakeman who is in.
jured thereby in coupling such car to a Payment of, see Subrogation, 1. box car to an instruction that the com- Redemption, see, also, Judicial Sales, 1. pany is, as matter of law, guilty of negli
What constitutes. gence. – Louisville & N. R. Co. v. Gower, (Tenn.) 824.*
1. N. executed a writing, agreeing to de5. In an action against a railroad com- liver possession of certain town lots when pany to recover for the death of an em- H. should pay him a sum of money and
inploye, the only evidence introduced by terest on the money for two months, and plaintiff to prove the alleged negligence in that his receipt for the money should make the construction of a “switch” or “frog” the deed executed to him for the lots void. being that the switch rail was & little It appeared from parol evidence that H., lower than the other rail, and his witnesses having the right, at the time the writing not stating that this was a defect that was executed, to buy the lots from another could be remedied, and defendants prov. within a certain limited time, applied to N. ing that it was necessary to have the to pay the money and take title to the lots; switch rail lower than the main rail, held, agreeing that if he, H., did not repay the that a finding for plaintiff must be set money within a specified time, the propaside. — Little Rock & Ft. S. Ry. Co. v. erty should be N.'s; and, the obligor having Eubanks, (Ark.) 808.
paid the money, the writing was executed
in pursuance of the agreement. Held, the Maxims.
writing constituted a conditional sale, and
not a mortgage.-Hubby v. Harris, (Tex.) Falsus in uno, see Criminal Practice, 42. 558.
Deed absolute in form. MECHANICS' LIENS. 2. A deed made by a purchaser at an exe
cution sale to a third party, at the request Nature and acquisition of.
of the judgment debtor, to secure money 1. One who, having furnished material borrowed by the judgment debtor from the to a contractor engaged on work for a third party in order to redeem from the county, delivers his attested account to the execution sale, although absolute in form, county judge, and notifies the contractor will be treated in equity as a mortgage.that he has done so, does not thereby ac- Robinson v. Lincoln Sav. Bank, (Tenn.) quire a lien upon the money due the con- 656.* tractor for the work, and he will be post 3. Where one conveyed her interest in poned, in the distribution of the fund, to land to another by a deed absolute in form, partial assignees of the contractor's claim, but the grantee at the same time executed who took their respective assignments to her a written agreement binding himprior to the date of the delivery of his ac- self to reconvey the land to her so soon as count. Campbell v. Hildebrandt, (Tex.) he might realize from the rents a sum suf243.
ficient to repay him what he had paid out 2. If the principal contractor is liable to in redeeming the land from an execution the owner in damages, for breach of con- purchaser, held, the two instruments should tract in putting up the building, to an be considered together, and, being so conamount exceeding what is due on the considered, constituted a mortgage.-Frey v. tract price, a subcontractor, who by stat- Campbell, (Ky.) 368.* ute is entitled to have the owner, upon Validity. notice from him, retain enough to pay him from what is due to the contractor, pro- to B., gets C. to execute a mortgage, with
4. Where A., having mortgaged his land vided the contractor himself has a lien, description blank, for the same amount, on can claim nothing. Parrish v. Chris
200 acres of his land, and then fills in a topher, (Ky.) 603.
description which calls for 200 acres out of Mines and Mining.
a tract of 900 acres, and gets B. to ex
change it for his own mortgage, B. being Dower in mines, see Dower, 2.
ignorant of the mode in which the second
mortgage was made, a court of equity will Misnomer.
sustain the mortgage from C. to B.-Brown
v Maury, (Tenn.) 175. In order of publication, see Writs, 7, 8. Requisites.
5. A mortgage was acknowledged before MORTGAGES.
a deputy.clerk, and the principal clerk, in
writing out the certificate, failed to set See, also, Chattel Mortgages.
forth the facts, and include the indorse. Crops, mortgage of, see Crop8.
ment of acknowledgment made on the Partition, mortgagee as party, see Parti- mortgage by the deputy. Heid, that the tion, 2.
mistake may be corrected, under the Ken