Taxation.

their tracks, by which places necessary and | use of the right of way.-A. Backus, Jr., & convenient for the use of the public may Sons v. Detroit, W. T. & J. Ry. Co., (Mich.) be left open, cannot be extended to a siding 60. used merely for the loading of ties, wood, and piling purchased by the company, (there being no testimony tending to show the amount of such business,) and for the passing of trains, at a point where no depot is maintained, no employe stationed, and where persons desiring to take passage are obliged to flag the trains themselves. Hurt v. St. Paul, M. & M. Ry. Co., (Minn.)

613.

Municipal aid.

6. Laws Wis. 1878, c. 155, and Laws Wis. 1879, c. 197, authorized Burnett county to borrow of the trust fund of the state money to aid in the construction of a railroad, payable in 15 annual installments. The railroad company was required to pay into the state treasury a percentage of its gross earnings in lieu of license fees, the amount to be credited on the county loan. By Laws 1883, c. 172, a new county was formed out of part of Burnett county, the public property divided, and the county railroad loan apportioned; new certificates of indebtedness to the state being issued. No provision as to the apportionment of the amount paid into the treasury by the railroad company was made. Held, that the sum should be apportioned between the counties in the ratio of the portions of debt assumed by each.-State v. Harshaw, (Wis.) 641.

Lease.

8. The Dakota act for the levy and collection of taxes upon railroad property, approved March 9, 1883, is unconstitutional in so far as it attempts to levy a tax upon the earnings of railroad companies derived from interstate transportation, being to that extent an interference with interstate commerce.-Northern Pac. R. Co. v. Raymond, (Dak.) 538.

9. A railroad company which has paid such tax is entitled to have that part of the payment based on the unconstitutional tax applied to valid taxes thereafter accruing.-Id.

Liability for negligence

to trains.

Accident

10. In an action against a railway company for negligently killing plaintiff's intestate by the derailment of an engine caused by a defective track, an amended complaint, containing the additional averment that, while the engine was running at a high rate of speed, one of the wheels dropped in a low place in the track, and was broken, throwing the engine and tender from the track, does not state a new cause of action, but merely contains additional specifications of negligence.-Kuhns v. Wisconsin, I. & N. Ry. Co. (Iowa,) 92.

Accidents at crossings.

12. The rule that a person approaching a railroad crossing is bound to look and listen for the approach of a train, is inapplicable where the train has passed the crossing while deceased was within a few rods of it, and driving on a trot, and has passed on out of his sight so as to induce the belief that it was to continue on, and where he has no reason to suppose that it would immediately return.-Duame v. Chicago & N. W. Ry. Co., (Wis.) 394.*

11. Where the evidence is conflicting as to whether there was a low joint in the 7. Defendant depot company agreed to track, by which the engine was derailed, it furnish the W. railroad company with ter- is competent to show that defendant's emminal facilities and build tracks from its ployes raised the joint immediately after station grounds to a junction with the lat-raising the engine, as proof of the existter's line, the grounds and tracks to be ence of the low joint, but not as part of the used by both companies, and others; the res gesta.-Id. rights enjoyed by the W. company to be those of an owner. It afterwards agreed with defendant railroad company to furnish the latter all money needed to acquire the right of way for those tracks, and to build them in consideration of a lease of the road to it at a rental equal to the interest on the money advanced, agreeing also to provide for the working and management of the road, and to assume all responsibilities of such management. When the road was completed, the depot company commenced to operate it, and the W. company used it under its agreement and 13. When a train, which has crossed a did its switching and making up trains on street crossing in such manner as to indithe right of way across plaintiff's prem- cate that it would continue to pass on, imises, though the petition in the proceed-mediately backs over the crossing, it is the ings to condemn it stated that it was to be used only for the passage of trains, and not for those purposes. Held, that plaintiff could recover from the depot company and defendant railroad the damages sustained through the W. company's unauthorized

duty of the railroad company to have some one on the rear car, or in some position where he can see that no one is about to cross the track, to give warning, and to signal the train to stop, if there should be danger of a collision.-Íd.*

Liability for negligence-Injuries to of blood, etc. Held, that the charge was
persons on track.

14. In an action against a railroad com-
pany for death caused by wrongful act,
where the evidence shows that deceased
walked from a station platform 60 feet to a
track on which freight cars were standing,
and attempted to cross the track between
cars standing only two or three feet apart,
while the freight train which killed him
was backing in upon such track in full
view, and that deceased, a man in full pos-
session of his faculties, neither noticed
said train nor heeded the cries of two per-
sons who attempted to warn him, plaintiff
cannot recover, though defendant's train-
men failed to exercise ordinary care in the
management of the train.-Bertelson v.
Chicago, M. & St. P. Ry. Co., (Dak.) 531.
15. Where the complaint does not charge
gross negligence on the part of defendant,
and the testimony merely shows want of
ordinary care in failing to ring the engine
bell, and to keep a proper lookout, it is er-
ror to submit the question of defendant's
gross negligence to the jury. PALMER, J.,
dissenting. Id.

Stock-killing cases.

16. In an action against a railroad company for killing an ox, where there is direct and positive, though contradicted, evidence of the insufficiency of defendants' fence, and it is shown that the plaintiff was not guilty of contributory negligence a motion for nonsuit is properly refused. -Welch v. Abbott, (Wis.) 223.

not erroneous as being one-sided.-Id.
20. There had been at one time a station-
house near the point in question, but for
several years the company had kept no
agent there, the station building had been
closed up, and had gone to decay. There
were no grounds for a depot outside of the
usual right of way; the company had put
in cattle-guards 350 feet south of the sta-
tion building, and 721 feet north of it, and
beyond these points the road was fenced.
Held, that the court properly refused to
hold, as a matter of law, that the "depot
grounds" extended from the north to the
south cattle-guards, and left it to the jury,
who were warranted in finding that the
place near the north cattle-guard, where
the accident happened, was not a part of
the depot grounds.-McDonough v. Mil-
Waukee & N. Ry. Co., (Wis.) 806.
Fires.

21. Evidence that fire started in a field, about 60 feet north of a railroad, immediately after the passing of a locomotive, while a strong wind was blowing from the south; that no persons were about; and that there was no apparent cause, except the passing engine,-is sufficient to justify the conclusion that the fire was set by the the conclusion that the fire was set by the engine.-Dean v. Chicago, M. & St. P. Ry. Co., (Minn.) 270.

for defendant, that, with the appliances 22. The testimony of an expert witness fire could not have been so caused, unless in use to prevent such accidents, the 17. In an action for injury to cattle al- the engine had been out of repair, considleged to have been caused by defendant's ered in connection with the statutory prenegligence in not fencing its track, a ten-sumption of negligence, justifies a verdict der of damages, pleaded as a distinct defense, admits that the company ought to have fenced, though a general denial in issue, and though Code Iowa, & 2710, authorizes inconsistent defenses.-Taylor v. Chicago, St. P. & K. C. Ry. Co., (Iowa,) 84.

another count covers

18. It is in the discretion of the court to charge or not that the company's failure to produce as witnesses the employes who operated the train should not be considered in determining how the injury was in

flicted.-Id.

19. A heifer was found 60 or 70 feet from
the track, with one of its legs nearly cut

off. No blood or hair was discovered on
the track. The court charged that, in de-
ciding whether the heifer was injured by
the train, the jury should consider the ev-
idence showing where the heifer was be-
fore and at the time of the injury; the
presence or absence of other causes of in-
jury; what trains, if any, had passed be-
fore the injury; and all facts fairly tending
to show that the heifer was injured by the
train; but made no allusion to the absence

against defendant, though other evidence
tended to show that the engine was pro-
vided with the best appliances; that they
were in good order; and that the engineer
and fireman were competent.-Id.*
by a locomotive, the fact that defendant's
23. In an action for damages for fire set
inspector has testified that, so far as he
knew, the screen used on the engine al-
leged to have emitted the sparks was the
same as was used on all the engines on the
road, does not entitle the plaintiff to show
in rebuttal that fires frequently sprung up
after the passage of other engines.-Allard
v. Chicago & N. W Ry. Co., (Wis.) 685.*

RAPE.

Impeachment of witness, see Witness, 14.
What constitutes.

1. In a prosecution for rape under Crim. Code Neb. § 12, which provides that if any male person of the age of 18 years, or upwards, shall carnally know or abuse any female child under the age of 15 years, with

her consent, such person shall be deemed | stockholders and creditors of the company, guilty of rape, etc., it is not necessary to-there was no error in ordering the note to prove that the prosecutrix has not reached be retained in the custody of the clerk unthe age of puberty, if it be shown that she til after further investigation.-Id. is under 15 years of age.-State v. Wright, (Neb.) 596.

1. Where plaintiff sues as receiver, appointed in proceedings supplementary to execution, the objection that he was not duly appointed, or is not authorized to sue, cannot be raised on general demurrer for insufficiency. The proper ground of demurrer is that plaintiff has not legal capac ity to sue.-Walsh v. Byrnes, (Minn.) 831. 2. A petition filed by the receiver of a company, entitled and drawn as though part of the original action for the appointment of a receiver, alleged that officers of the company were in possession and con

Constructive

gages, 2.

Records.

notice, see Chattel Mort

of mortgages, see Landlord and Tenant, 12. Redemption.

From execution sales, see Execution, 2.
tax sale, see Taxation, 20.
Reference.

Practice, see Equity, 8.
When ordered, see Equity, 5.
Reformation of Instruments.
See Equity, 1, 2.

RELEASE AND DIS-
CHARGE.

Of vendee, see Vendor and Vendee, 6.
Between lessor and lessee.

which they "release and relieve one an-
A contract between lessor and lessee, by
other from all the terms and obligations"
of the lease, "and the same are to stand for
naught from this time," releases an obliga-
tion of the lessee to pay taxes not then due
or payable, though previously assessed.-
Henry v. Chrisinger, (Iowa,) 121.

When lies.

REPLEVIN.

trol of a note to which the receiver was entitled; that they were about to negotiate it, and convert its proceeds to their own use; and that they were insolvent. Code Iowa, § 2903, provides that on such allegations the court may require property to be 1. How. St. Mich, § 8318, forbidding replaced in the hands of a receiver. Held, plevin for property taken by virtue of any that the proceeding was auxiliary to the warrant for the collection of any tax, asoriginal action, and that equity had juris- sessment, or fine, in pursuance of any statjuris-ute diction to require defendants to answer the ute of the state, covers a case where proppetition, and surrender the note.-Brandt the roll to be regularly assessed in a townerty is seized for a tax which appears on v. Allen, (Iowa,) 82. ship where it was subject to be assessed, fact the assessor has made an unauthorized and which is presumably valid, though in change in the assessment roll in regard to the property.-Hill v. Graham, (Mich.) 779. Notice to officer.

3. It appearing that a note, sought to be recovered from the officers of a company by its receiver, was transferred by one of defendants to the assets of the company from his personal property before an impending investigation of the company's affairs by the state auditor; that after the investigation the directors resolved to return the note to defendant, but defendant treated it as belonging to the company, and included it in the annual statement of assets, plaintiff contending that for these reasons it should still be treated as belonging to the company, and that to allow defendant to retain it would be a fraud on the v.40N.w.-65

2. The written notice, required by Code Iowa, § 3055, to be given to the office holding the goods before replevin of property seized under execution, is not dispensed with in replevin by a mortgagee, by Acts Iowa, 1886, c. 117, which authorizes the levy of execution on mortgaged property on a tender or deposit of the amount due 'on the mortgage before the levy, and it is

immaterial that no tender or deposit was | samples shown is unobjectionable.-Julius made.-Danforth v. Harlow, (Iowa,) 822.

9. In an action for the price of goods, proof that the price was less than that alMort-leged in the complaint does not constitute a material variance. Iverson v. Dubay, (Minn.) 159.

2. One who purchases, by sample, a chat-
tel intended for a particular purpose,
known to the seller, may, even after ac-
ceptance, rescind the sale, on discovering
a latent defect.-Hudson v. Roos, (Mich.) School lands, see Public Lands, 5.

SCHOOLS AND SCHOOL-DIS-
TRICTS.

or consolidated without the consent of the majority of the resident tax-payers of each district, a return by the board of school inspectors, stating that the persons consenting are a majority of the resident taxpayers of the districts, is conclusive as to such fact, though the consent filed by the districts does not state that the persons are a majority.-Gentle v. Board of School Inspectors, (Mich.) 928.

2. Proceedings for organizing a new school district, taken without giving the full 10 days' notice required by How. St. Mich. § 5040, are not rendered valid by the filing of a consent by a majority of the citizens of each district affected, such consent being required by section 5041, as the notice is a jurisdictional requirement, and the minority have a right to be heard, and a right to the full notice required.-Id.

SEDUCTION.

Criminal prosecution-Instructions. 1. An instruction that, in determining whether the prosecuting witness was corroborated in her testimony, the jury should consider "all the facts and circumstances

attached by him, to another, on the strength of a receipt for the same, the receiptor cannot question a judgment obtained in the action in which the property was seised and attached, as obtained by perjury and fraud.-Holcomb v. C. N. Nelson Lumber Co., (Minn.) 354.

SPECIFIC PERFORMANCE. Requisites of contract, see Powers, 4. Jurisdiction.

1. An agreement by the vendee of land in another state, to give his note for the purchase price, and secure it by mortgage on the land, may be enforced in equity; the remedy at law being inadequate.Hicks v. Turck, (Mich.) 339. Requisites of contract.

2. A description of land, in an agreement to convey, as "five acres, lot 3, sec. 23," etc., there being nothing to show what five acres is intended, is not a good description, and the defect cannot be supplied by parol.-Nippolt v. Kammon, (Minn.) 266.*

3. A contract whereby the vendee of of the case as the same have been estab- land agrees to lay out a town, and reconlished by the evidence," is not objection- veya block to the vendor, including the able, as informing the jury that the cor- land on which his house stands, of an averroborating circumstances were proved.-age size with the other blocks of the town, not to exceed a certain number of feet State v. Standley, (Iowa,) 815.

2. An instruction that the prosecuting square, is too indefinite to be enforced witness might be found unchaste, though after the town is platted, and the size of there was no proof of unlawful sexual in- the blocks established; and the continutercourse, is not objectionable, as convey such part performance as cures the defect. conveyance of the vendor in possession is not ing the idea that such proof of itself would Hollenbeck v. Prior, (Dak.) 347.* not establish unchastity.-Id.

3. An instruction that, if the defendant Pleading-Answer. did seduce the prosecuting witness, a ver- 4. In an action for specific performance, dict of guilty should be found, is not error, an answer alleging that plaintiff has never where the jury are also admonished to con- tendered performance on its part, or desider all the instructions, and in a prior in-manded performance of defendants, is imstruction the effect on the case of the material, where plaintiff alleges that it is woman's unchaste character was consid-ready and willing to perform. It could, at ered.-Id.

Sentence.

See Criminal Law, 18.

Set-Off and Counter-Claim. When allowed, see Ejectment, 6; Taxation, 10.

Settlement.

Of paupers, see Poor and Poor-Laws.

SHERIFFS AND CONSTA-
BLES.

Compensation, see Intoxicating Liquors, 10.
Receiptors.

Where a sheriff relinquishes possession of property, which has been seised and

most, only affect costs, and therefore presents no ground for setting aside a default. -St. Paul Land Co. v. Dayton, (Minn.) 66.

STARE DECISIS.

Decision on former appeal.

A previous ruling by the appellate court on a point distinctly made is a final adjudication of the case, from the consequences of which the court cannot depart, nor the parties relieve themselves.-Chicago, B. & Q. R. Co. v. Hull, (Neb.) 280.

STATE LEGISLATURE. Proceedings.

1. While the court may look behind the enrollment, and into the legislative jour