McIntire v. McIntire, 48, 511. Pleading: |
Waiver. Kendig v. Overhulser, 196.
McKinley v. The C. & N. W. R. Co., 44, 314.
Master and Servant. Johnson v. The C.,

R. I. & P. R. Co., 352.
McNaught v. The C. & N. W. R. Co., 30, 336.
Railroads: Service of Notice. Brentner v.
The C., M. St. P. R. Co., 626.
Merry v. Allen, 39, 235. Accord and Satisfac-
tion. Ogilvie v. Hallam, 715.
Messenger v. Marsh, 6, 491. Default: Prac-
tice. Brandt v. Wilson et al., 487.
Miller et al. v. Clark et al., 37, 325. Cogno-
vit: Statement of Facts. Kendig v. Mar-
ble, 530, 532.

Miller v. Dayton, 47, 312. Execution. Strong
et al. v. Lawrence et al., 61.

Miller & Co. v. Mason & Co., 51, 239, Gar-
nishment: Venue. Smith v. Dickson, 445.
Moffit v. Cressler, 8, 122. Instruction. Hess
v. Wilcox et al., 384.

Traer Bros. v. Whitman et al., 56, 443. Rec-Zuver v. Lyons, 40, 510. Fraudulent Con-

CONSTITUTIONAL LAW.

See ACKNOWLEDGMENTS, 1.

INSANITY, 1.

INTOXICATING LIQUORS, 3, 4.

CONTRACT.

1. MISTAKE: EQUITABLE RELIEF. If a person contracts for a certain thing
or parcel of property, and unknowingly accepts a different thing or
property, it must be deemed a mistake, in respect to which equity will
grant relief. Sowler v. Day et al., 252.

2. CONSTRUCTION OF: RIGHTS UNDER. A certain contract, set out in full
in the opinion, construed and held not to be a mortgage for money
loaned, nor to authorize a decree for redemption, but binding upon the
parties according to its terms. Hensley v. Whiffin et al., 426.

3. FOR LABOR: REASONABLE VALUE: USUAL PRICE. The usual and cus-
tomary price of labor can only be shown, by evidence of the price actu-
ally paid at the same time and place for labor of the same kind, either
under express or implied contracts; and an instruction asked that proof of
what was paid for labor under contracts would not establish the reason-
able value of plaintiff's services, was properly refused. Jenks v. The
Knott's Mexican Silver Mining Co., 549.

4. STATUTE OF FRAUDS: PAROL PROOF. A written contract set out in full
in the opinion, construed and held not to be a contract to answer for the
debt or default of another; that the contract could not be aided or added
to by parol evidence; that to supplement such contract by evidence of a
parol promise to pay plaintiff's debt would be clearly within the statute
of frauds; and that the admission of such parol testimony, and the sub-
mission of the contract to the jury for construction, was error. Vaughn
v. Smith & Co. et al., 553.

5. For corporATE STOCK: TENDER OF CERTIFICATES. An instrument, de-
livered to the maker at the time he executed a subscription note for the
stock of a corporation, provided that certificates of stock should be deliv-
ered upon the payment of the note. Held:

1. That both instruments were admissible in evidence as parts of the
same contract.

2. That as plaintiff acquired the note after maturity he took it with
all the infirmities which attached thereto.

3. That no action could be maintained upon the note without a tender
of the certificates of stock. Hedge v. Gibson, 656.

6. OPTIONAL TRANSACTIONS: WHEN VOID. Where notes were indorsed as
security for advancements to be made by the indorsees in certain grain
transactions, and the evidence does not show that the transactions were
bets upon the future price of grain, or intended as mere option deals to
be closed without the delivery of the grain, the purchases and sales were
not void, and the notes would be held for the advancements so made.
The optional contracts that are void are such as do not contemplate the
delivery of the commodity purchased. Gregory v. Wattowa et al., 711.
7. CONDITIONS: BREACH OF: DAMAGES. By the terms of a written con-
tract, the defendant was to furnish ice at an agreed price, the plaintiffs
were to make sales, and upon demand give defendant a satisfactory bond
indemnifying him against loss. Defendant was to make no sales in
plaintiffs territory, and the profits were to be equally divided. The de-
fendant demanded a bond; one was tendered, but the amount of the
penalty not being satisfactory, it was refused, and the defendant gave
notice that he considered the contract terminated: Held, that if defend-
ant violated the contrast before demanding the bond, he became liable
for the damages occasioned thereby; and that if the plaintiffs desired to
continue the contract in force, notwithstanding such breach, they should
have executed the bond as provided in the contract. Hall & Spencer v.
Stewart, 681.

8. BREACH OF: FAILURE TO FURNISHI BOND. The contract being that the
plaintiffs, on demand, should furnish a bond satisfactory to the defend-
ant, the refusal or neglect of the defendant to state what stipulations

he desired in it, would not excuse the plaintiffs for failing to furnish a
satisfactory bond. Id.

See BOND, 6.

BURDEN OF PROOF, 1.

DAMAGES, 7, 8.

REPLEVIN, 3.

USURY, 3.

VENUE, 3.

WARRANTY, 1.

CONVEYANCE.

1. DESCRIPTION OF BOUNDARY LINE: CONSTRUCTION OF. Where the
boundary of land, as expressed in the deed, was "up the west bank of
Pine Creek," it will be construed to give the grantee title to the line of
low water, upon the west bank of the stream. Murphy et al v. Copeland,
409.

2.

: EVIDENCE TO CONTRADICT: INCOMPETENT. Where the deed
fixes the boundary of land at low water mark, it is not competent to
contradict the deed, by testimony that a prior grantor pointed out an-
other and different line as the correct one. Id.

3. WHEN A MORTGAGE: PURCHASER FROM GRANTEE. A conveyance, where
the grantee executed a bond to reconvey, upon the payment of a certain
sum with interest, is a mortgage as to such grantee, and a purchaser,
with knowledge of the transaction, takes by deed only the assignment
of the grantee's interest in the property. Radford v. Folsom et al., 473.
: BOND: POSSESSION. In such case, where the grantor
was in possession of the property when the conveyance and bond were
executed, and no provision was made for the surrender of possession, he
is entitled to retain possession of the same as against the grantee or a
purchaser with knowledge. Id.

4.

5. VOLUNTARY: VOID: HUSBAND AND WIFE. A conveyance made to the
wife, the consideration for which was property owned by the husband,
is voluntary and therefore void as to existing creditors of the husband.
Boulton & Co. v. Hahn et al., 518.

6. MISTAKE IN DESCRIPTION: EVIDENCE TO CORRECT. Evidence consid-
ered and held sufficient to clearly establish a mistake in the title bond,
in respect to the description of the property to be conveyed, and that the
plaintiff was entitled to have the same corrected. Eggspieller v.
Nockles, 649.

See CROPS, 1.
COSTS.

1. IN JUSTICE COURT: CRIMINAL ACTION: COUNTY. A justice of the peace
may legally tax the costs in a criminal prosecution, dismissed by him be-
fore the final trial, for the reason of the failure of the prosecuting witness
to appear and prosecute, to the State to be paid by the county. Cassidy
v. The County of Palo Alto, 125.

2.

:

: WITNESS FEES: COUNTY. In such case upon the refusal
of the board of supervisors to allow the same, a witness called for the
prosecution may sue the county and recover his legal fees. Id.

3. IN CRIMINAL ACTIONS BEFORE A JUSTICE: TAXED TO THE STATE. Where
a criminal action was dismissed by a justice of the peace at the time set

for trial, because the prosecuting witness failed to appear and prosecute,
and the costs were taxed to the State to be paid by the county, it will be
presumed, in the absence of an affirmative showing to the contrary, that
the discretion of the justice, in not taxing the costs against the prosecut-
ing witness, was properly and legally exercised. The County of Palo
Alto v. Moncrief, 131.

4. FEE BILL: AGAINST SUCCESSFUL PARTY. A party against whom a judg-
ment is rendered is primarily liable for all the costs to the parties en-
titled thereto, who may have a fee bill issued therefor; and failing in
that, they may by motion require the successful party to pay such of the
costs as accrued at his instance. McConkey et al. v. Chapman et al., 281.
5. PAYMENT: WHEN NOT A RELEASE: FEE BILL. The payment in full of
the judgment and costs by the judgment defendant, to the judgment
plaintiff, will not release him from all liability to have a fee bill issued
against him for the costs. The successful party has no right to costs not
advanced by himself, and payment to him would not absolve the un-
successful party from payment to the persons entitled thereto. Id.

See ADMINISTRATOR, 1.

JUSTICE OF THE PEACE, 1.

PRACTICE IN THE SUPREME COURT, 14.
VENUE, 4.

COUNTY.

1. TOWNSHIP: VOTING TAX IN AID OF RAILROADS: EXPENSE. The county
is in no way concerned in the voting of taxes in the various townships in
aid of railroads, and cannot be required to pay for publishing notices of
the elections therefor, or any part of the expenses thereby incurred.
McBride v. Hardin County, 219.

2.

-:

: NOTICES OF ELECTION: EXPENSE. As there is no officer
who possesses authority to make the county liable for publishing notices
of such elections, the difference in language in the various counts of the
petition, that plaintiff was requested by "the proper officers" and “by
the proper officers of the township," was immaterial. Id.

See BOARD OF SUPERVISORS, 2, 3, 4.

Costs, 1, 2, 3.

FENCE, 2.

PAUPER, 1.

TAXES, 2, 3.

COURT.

1. DISCRETION OF: TESTIMONY TO CORRECT MISTAKE. It was within the
discretion of the court, under the circumstances of this case, after all the
testimony had been taken in the form of depositions, and read on the
trial, and the cause finally submitted, to permit a party to be called as a
witness and give oral testimony for the purpose of correcting an alleged
mistake in his written deposition. Eggspieller v. Nockles, 649.

See ESTATES Of Decedents, 7.
INJUNCTION, 3.

EVIDENCE, 10.
JURISDICTION, 3.

NEW TRIAL, 2.

PRACTICE, 10, 16.