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tucky act of May 10, 1884, relative to the First Nat. Bank of Cincinnati v. Thomas, curing of such defects, although the act (Ky.) 12.* was passed subsequently to the bringing Power of sale. of the suit, and the lien under the mortgage is good. — Edmunds v. Leavell's
11. The power to make a sale under a
deed of trust given to secure the payment Adm'r, (Ky.) 134.
of a debt may be exercised although the Description.
right of action on the debt is barred, and 6. A mortgage described the lands as although the rights of a third person as pur“being 200 acres of a tract [described by chaser of the equity of redemption have inmetes and bounds] containing 600 acres, tervened. Such purchaser, therefore, canmore or less. Said 200 acres lie west of not, because the debtor has made a new the H. pike.” There were in fact 900 acres promise sufficient to postpone the bar of belonging to the mortgagor lying west of the statute so far as he is concerned, and the pike. Held, that the description was because a sale has been made under the sufficient, and would convey two-ninths power after the right of action on the debt, of the tract west of the pike. TURNEY, C. but for the new promise, would be barred, J., and CALDWELL, J., dissenting.–Brown assert a right in the land paramount to the v. Maury, (Tenn.) 175.
right of the purchaser at the sale under the Mortgagee in possession-Rent.
power.–Fievel v. Zuber, (Tex.) 273.* 7. The grantee in an absolute deed that is shown to be a mortgage, being a mort MUNICIPAL CORPORAgagee in possession, is to be held to the
TIONS. care that a provident owner would exercise in the management of the land; and, when See, also, Counties; Schools and School-Dishe rents it out, he is to be charged with tricts. what appears from the evidence to be a reasonable rent, even though he may not License power, see Licenses, 1, 2. have received so much, especially when
he Limitation of actions against, see Limitakeeps no account showing his receipts.
tion of Actions, 5, 17. Frey v. Campbell, (Ky.) 368.
Railroad, ordinance regulating moving of
cars, see Railroad Companies, 8. Foreclosure-Defenses.
Street, establishment of, see Highways, 1, 2. 8. In a suit to foreclose a mortgage exe- Taxation, for aid to railroads, see Railroad cuted by defendants, husband and wife, Companies, 20. the wife may aver in her answer that she special assessment, who liable for, see did not execute the mortgage as charged, Estates. and that she never conveyed, nor intended public improvements, sale for, see to convey, the land described in the mort Judicial Sales, 10. gage, and allege fraud and collusion on the part of her husband and complainant to Powers of. procure her signature and acknowledg 1. A license upon attorneys at law, or ment, and she is not required to assert this any other profession, calling, or trade, defense by a cross-bill. — Genthuer v. may be imposed by a municipal corporaFagan, (Tenn.) 351.
tion acting under legislative authority; and 9. In a suit to foreclose a mortgage it is no valid objection to the license that against a husband and wife, in which the it is imposed upon one profession or trade, wife, by her answer, denies the execution and upon no other. Bullitt v. City of by her of the mortgage as charged, and al. Paducah, (Ky.) 802. leges collusion and fraud by her husband 2. In an action by a municipal corporaand complainant in obtaining her signature tion on the bond of a public weigher, conand acknowledgment, testimony of the ditioned for the payment of money by bim wife and other witnesses is admissible to for the exclusive privilege of weighing cotprove that complainant admitted to her, in ton on the public scales, the plea that the their presence, that she never agreed to ordinance providing the scales, and the give the mortgage sought to be enforced; contract awarding the privilege of weighand such confession, if proved, is concluing, were ultra vires, is not available to the sive proof that there was no mortgage by sureties; the contract being executed, and her, notwithstanding her signature and ac- the weigher having got the benefit he conknowledgment.-Id.
tracted for.–Town of Monticello v. Cohn, · Bar by limitation.
(Ark.) 30. 10. In Kentucky the mortgage is a mere Ordinances. incident to the debt, or security for its pay 3. Section 18 of article 4 of the charter ment; so that, when the right of recovery of St. Louis provides that the mayor shall as to the debt itself is barred by limitation, state to the council, when assembled in spethe mortgage to secure it is barred also.- cial session, the objects for which they
have been convened, and their action shall Mutual Benefit Societies.
be confined to such objects. Held, that
the mayor could not enlarge the scope of Beneficiary, right to change, see Insur-
legislation by stating in his message calling
such session that "he was not averse to Execution upon life certificate, see Insur-
submitting any measure” during the ses-
sion, if deemed of public interest, and that
an ordinance passed at the submission of
the mayor during the session was void. - Navigable Waters.
City of St. Louis v. Withaus, (Mo.) 395.
Collection of tolls, see Canals.
4. A city made a contract for the im-
Levee taxes, see Constitutional Law, 4.
provement of a street, by which the con-
tractor was to look to the abutting owners
for payment, except in the case of the in-
tersections of crossing streets. In a suit See, also, Master and Servant; Railroad
against the property owners it was held
Companies, 5-9, 17, 18.
that the city had no power to bind them, Damage for personal injuries, see Damages,
and, in another suit against the city, it was
held that the contractor had no claim Municipalities, liability for negligent blast-
against it for the price. In an action by ing, see Municipal Corporations, 5.
the contractor for authority to remove the Master's negligence, see Master and Serv-
improvements made, except at the street
intersections and in front of the lots whose Pleading and proof. see Pleading, 5.
owners had paid, held, that the contractors Railroad, negligence of, see Railroad Com-
could not succeed without tendering repay panies, 7, 9.
ment for the amounts paid them for the in ringing bells, etc., see Railroad Com-
tersections and by the property owners.- panies, 8.
Hahn v. Town of Bellevue, (Ky.) 132.
- running trains in cities, see Railroad
Liability for negligence.
5. The owner of a town lot was engaged
- in stock-killing cases, see Railroad
in blasting stone thereon in such manner
that a piece of stone was thrown over into
the street, so as to injure one who was pass-
Ordinary and reasonable care.
ing by. Held, the person so injured could
1. Ordinary care is that degree which is
not recover of the city for the injury on
exercised by ordinarily prudent persons
the ground that it had permitted the owner
under similar circumstances. Needham
to carry on his blasting, operations.- Louisville & N. R. Co. (Ky.) 797.
James' 'Adm'x v. Town of Harrodsburg,
2. Explaining to a jury the “care of a
man of ordinary prudence” as “just such
care as one of you, similarly employed,
would have exercised under the circum-
6. A provision of a city, charter that, in stances,” is erroneous.-Louisville & N. R.
order to render the city liable for “gross Co. v Gower, (Tenn.) 824.
negligence” in non-repair of a street, the
non-repair must have continued for 10 days Proximate cause.
after notice in writing, given to certain of-
3. It is no defense to an action for dam-
ficials, does not apply to a case where the age done to plaintiff's land, abutting on a
city itself had an excavation dug by a con- river, by the operation of a jetty built in
tractor, discharged the contractor, and left the river by defendant, that defendant
the excavation as it was.-City of Houston could pot have foreseen the result. - Ar-
v. Isaacs, (Tex.) 693.
mendaiz v. Stillman, (Tex.) 678.
Province of court and jury.
7. Under 2 Rev. St. Mo. art. 6, § 5010, pro 4. In an action against a railroad com-
viding that the benefits arising from the pany to recover for its willful neglect, re-
opening of alley-ways in cities shall be as- sulting in the death of plaintiff's intestate,
sessed to the owners of property in the the question of willful neglect is not a
block where the alley is situated abutting question of law, but a mixed question of
on the proposed alley, “a lot abutting upon law and fact, which it is the peculiar prov-
an alley to be intersected by the new alley” ince of the jury to determine, especially
is not assessable.-City of St. Louis v. Jup- as to the degree of it.-Needham v. Louis-
pier, (Mo.) 401.
ville & N. R. Co., (Ky.) 797.
5. Under Mansf. Dig. Ark. $ 5226, giving
a right of action to the next of kin to re-
cover damages for causing death of a rela- | crossing; that defendant did not and could
tive through negligence, it is admissible not see the train till he was on the middle
for the plaintiff, the mother of deceased, to track, and when he saw it, his horse's feet
give evidence tending to show that she was being on the further track, he whipped
dependent upon him for support.-Little him to get across; that defendant's train
Rock, M. R. & T. Ry. Co. v. Leverett, was going between 15 and 30 miles an hour,
though by the city ordinances limited to
6. In an action against a railroad com- 6 miles; that the engineer had a view for
pany for negligence causing an injury to from one to three hundred yards of the
a passenger, the burden of proof shifts to perilous position of deceased; that deceased
the defendant upon proof of an accident could not have heard whistle or bell if he
occurring to the train, and consequent in- had stopped, and none was sounded,-
jury to the passenger.-Louisville & N. R. there is no such contributory negligence
Co. v. Ritters’ Adm'r.(Ky.) 591.*
shown by it as will sustain defendant's de-
7. Evidence showing that plaintiff, a murrer to the evidence.- Donohue v. St.
child 19 months old, somehow got in front | Louis, I. M. & S. Ry. Co., (Mo.) 2 S. W. 424;
of a street car, and was run over by it, but rehearing denied, 3 8. W. 848.
showing nothing beyond this as to the 13. Contributory negligence must be af.
circumstances of the accident, is sufficient firmatively proved, as it will be presumed
to sustain a verdict against the railway that the injured party was in the exercise
company, the company not calling the of due care until the contrary is made to
driver of the car to rebut by his testimony appear. And it is not sufficient to estab.
the presumption of negligence arising from lish contributory negligence on the part of
the facts.—Galveston City R. Co. v. Hewitt, a brakeman, who was afterwards injured,
that he exchanged places with one of his
8. Evidence of the condition of a railroad fellow-brakemen without orders from the
track 21 months after the accident is inad. conductor, although it is probable he would
missible. - Little Rock & Ft. S. Ry. Co. v. not have been injured had he not done so.
Eubanks, (Ark.) 808.
-Little Rock & Ft. S. Ry. Co. v. Eubanks,
9. Plaintiff, in an action to recover for (Ark.) 808.
personal injuries resulting from defend 14. In an action for damages for causing
ant's negligence, cannot show that he has the death of an employe, a switchman,
a wife and children; and, where defendant brought against a railroad company, an in-
objected to such evidence, stating, as the struction to the effect that, if the defects in
ground of the objection, that plaintiff must the road where deceased was thrown down
recover, if at all, for damage sustained by and mortally injured by defendant's cars
him individually, and not that sustained were easily and readily seen, and deceased
by his family, held, that the admission of had been accustomed to working there, and
it by the trial judge, with the remark that in attempting to uncouple cars while in
he did not take that view of it, was preju- motion received the injuries which caused
dicial.-Louisville & N. R. Co. v. Gower, his death, plaintiff was not entitled to re-
cover, is rightly refused, where there is no
evidence that he knew of the condition of
10. A person is not guilty of contributory and it also appears that he was injured on
the track at the place where he was injured,
negligence in not being on the lookout for
an excavation in a public street: especially R. & T. Ry. Co. v. Leverett, (Ark.) 50.
a dark and stormy night.-Little Rock, M.
if the street was in good condition when
he passed over it last.–City of Houston v. negligence resulting in the death of appel-
15. In an action against a railroad for
Isaacs, (Tex.) 693.
lant's intestate, it appeared that a locomo-
tive drew a box car to the head of a switch,
11. A railroad company is not liable for and, after giving the car an impetus for:
causing the death of one who goes upon ward, the locomotive moved off, and the
its track at a point where there was no car continued at a rapid rate of speed, down
public crossing, and from which he might grade, and without the control of any one,
have seen an approaching train, and so until it ran over and killed the intestate,
near to the train that those in charge of it who was walking on the track seeking em.
could not, by the exercise of the highest ployment in feeding and watering stock
degree of care, have saved him from being loaded in the cars. A portion of the track
run over.- Texas & N. 0. Ry. Co. v. Bar- traversed by the car ran through a town,
field, (Tex.) 665. *
and persons were in the habit of passing
12. Where, in an action by a widow for over it by the tacit consent of the railroad.
damages for the death of her husband, Held, that the evidence made out a prima
caused by his being run over at a street facie case of negligence, and the lower
crossing by defendant's train, the evidence court erred in directing a peremptory in.
shows that there were three tracks at the struction for the railroad.-Shelby's Adm'r
V. Cincinnati, N. 0. & T. P. Ry. Co., (Ky.) defect of title, in discharge of an ante-
cedent debt, is a purchaser for value.-Ta-
16. It being customary for the owners of bor v. Merchants' Nat. Bank, (Ark.) 805,
live-stock being shipped on railroads to 4. Upon proof of such fraud, in the in-
employ others than the servants of the ception of a note, as to destroy the claim
company to feed and water them at stations of the original holder, the presumption of
or stopping places, a person coming on the bona fide purchase for value otherwise ob-
tracks at such a point, seeking employment taining in favor of an indorsee before ma-
of that kind, is not a trespasser.-Id.* turity is overcome, and the burden is
Degrees of negligence.
shifted upon such indorsee to show that he
17. In an action against a street railway paid value in good faith.-Id.
company to recover for running, over a Negotiability.
child 19 months old, it not appearing posi 5. Neither a certificate of indebtedness
tively in evidence whether the driver saw issued by a city to one of its creditors, nor
the child on the track or not, but it appear. an order on the city accepted by it, is a ne-
ing probable that he did not, held, that an gotiable instrument.--Sonnenthiel v. Skin.
instruction that the company should ex.
ner, (Tex.) 686.
ercise the highest degree of diligence
towards a child of tender years, and would Indorsement.
be liable for slight negligence, was proper. 6. Blank indorsers on a promissory note
-Galveston City R.Co.v. Hewitt.(Tex.) 705. cannot, by a parol agreement between
18. For the slightest negligence against themselves and the maker, alter the lia-
which human prudence, diligence, or skill bility of the latter as fixed by the language
can guard, and by which a passenger is in of the note.-Latham v. Houston Flour.
jured, the railroad is liable in damages. Mills, (Tex.) 462.
A railroad is bound to keep its track clear 7. The payment, by the maker of a ne-
of obstructions, so that the engineers of gotiable promissory note, to the original
locomotives may have a clear view ahead payee, before its maturity, but after its in-
in running their trains.-Louisville & N. dorsement and transfer as collateral secu-
R. Co. v. Ritter's Adm'r, (Ky.) 591.* rity, constitutes no valid defense to a suit
by the indorsee on the note, although the
NEGOTIABLE INSTRU maker had no notice of such transfer at
the time of making payment.--Gosling v.
Griffin, (Tenn.) 642.
See, also, Orders.
Demand and notice.
Alteration of check, see Alteration of In-
8. When it is sought to charge a partner-
Married women, note of, see Conflict of dishonored, the requirements of the law
ship as indorsers of a note subsequently
Laus; Husband and Wife, 6, 8.
as to notice of its dishonor are fulfilled
Parol evidence affecting, see Evidence, 22. when such notice is left either at the place
Interpretation and effect.
of business of such firm with some one in
1. A promissory note providing that “we charge, or at the domicile or residence of
promise to pay, etc., and signed “Hous- one of the partners.-Fourth Nat. Bank v.
TON FLOUR-Mills Co., D. P. SHEPHERD, Altheimer, (Mo.) 858.
President, is the separate obligation of
the corporation, and not the joint promise
of it and the individual who signed as
president.-Latham v. Houston Flour. See, also, Criminal Practice, 46–56.
Mills, (Tex.) 462.*
Motion for, when to be made, see Homi-
2. If one signs a note as surety, and deliv. Reference, on findings of referee, see Ref.
ers it to the maker upon the understanding
that he is not to deliver it to the payee un-
til be obtains the signature of another per- Misconduct of jury.
son as co-surety, he will nevertheless be
The affidavits of jurors showing that the
bound if the maker delivers the note with jury arrived at their verdict by lot are not
out obtaining such other signature, and if admissible to impeach the verdict.-Ward
the payee has no knowledge, at the time of v. Blackwood, (Ark.) 624.
delivery, of the agreement between the
maker and the surety.-Tabor v. Mer-
chants' Nat. Bank, (Ark.) 805
Bona fide purchaser for value. For want of statutory affidavit, see Exec.
3. One who takes negotiable paper be utors and Administrators, 13.
fore maturity, and without notice of any Voluntary, see Appeal, 1.
to enable him to sue for and recover the
office from a usurper.-Toney v. Harris,
Of judicial sale, see Judicial Sales, 5. (Ky.) 614.
Of prior conveyance, see Fraudulent Con-
A., owing B. a debt, gave him an order
on C., who was indebted to A. for the de-
livery of an agreed number of goats, which
C. refused to deliver till satistied of the
extent of his indebtedness to A. B., after
Waiver, see Arbitration and Award, 1, 2. notifying A. of C.'s refusal, entered into a
written agreement with C. to extend the
time for receiving the goats, upon C.'s
OFFICE AND OFFICERS.
agreeing to deliver them at the end of that
See, also, Judge; Quo Warranto; States and time. Č. removed the goats to Mexico.
Held, that B. by his agreement released A.
from all obligation on the order, and the
Appointment by judge, see Judge, 1. debt it was given to satisfy.-Garcia F.
Bond, alteration of signatures to, see Al-Gray, (Tex.) 42.
teration of Instruments, 2.
defalcations through various terms,
see Principal and Surety, 3.
equity, jurisdiction of suit for breach,
PARENT AND CHILD.
see Bonds, 1, 2.
Legitimation by marriage of parents, see
governor, as surety on, see Alteration
of Instruments, 3.
Negligence, compensation for loss of sup-
County judge, liability of, see Counties, 4.
De facto judge, acts of, see Judge, 2.
port, see Negligence, 5.
Elections, irregularities in, see Elections, Custody of children.
If the parents have separated, the cus-
Quo warranto, filing of information for, see tody of the child will be given to the
Quo Warranto, 3.
father, where it appears that no reasonable
pleading, see Quo Warranto, 1, 2. objection can be made to his character,
and he is able to care for it properly, while
the mother, though a good woman and de-
1. The act allowing county treasurers to voted to her child, and willing to use her
hold over until April 1st, after the election best endeavors to care for it, and raise it up
of their successors, in counties adopting in proper courses, has but little means of
township organization, (Acts Mo. 1885, p. her own, and, to support herself and child,
108, amending Rev. St. $ 5362,) is not in con must rely upon her own labor, and such
flict with Const. Mo. art. 14, $ 8, providing assistance as her father may be willing to
that the term of office of no officer shall be give her.-Bonney v. Bonney, (Ky.) 171.
extended to a longer period than that for
which such officer was elected or appointed.
-State v. McGovney, (Mo.) 867.
See, also, Partition, 2.
2. The aldermen of a city, in canvassing Insurance, action on insurance policy, see
the election returns, determined that the
relator had been elected mayor, but de- Waiver of defect in, see Appeal, 29.
clined to direct the clerk to issue the certifi. Substitution, of widow of assignee for ben.
cate of election, basing their refusal upon efit of creditors, see Assignment for Bene-
the fact that relator was not an inhabitant
fit of Creditors, 6.
of the city as required by law. Held, that
the election of a person to an office who Necessary parties.
does not possess the requisite qualifi 1. A dormant partner is not a necessary
cations gives him no right to hold the of. party to a suit concerning the partnership
fice or to claim a certificate of election, and property.-Boehm v. Calisch, (Tex.) 293.
his application for a writ of mandamus Misjoinder.
against the aldermen must therefore be re-
fused. --State v. Aldermen of Pierce City, of action and of parties, but the defect
2. Where there is a misjoinder of causes
does not go to the jurisdiction of the court,
the remedy is by motion to strike out the
3. It is not absolutely essential that one names of the parties, and the cause of ac-
who has been duly elected to office should tion improperly joined, but the objection
be commissioned by the governor in order to such defect, unless made in the trial