16. LOCAL ASSESSMENT-ORDINANCE-PAVING-Curb.

Where, under a municipal ordinance, a property owner was required to replace a curb-stone, incident merely to the repair of the roadway, and not of the sidewalk, the expense cannot be provided by local assessment. Wistar v. Philadelphia, 80 Pa. St. 505, followed." Wistar v. City of Philadelphia, (Pa.)511, 17. TAKING LAND FOR SEWER PURPOSES-NUISANCE-CONSEQUENTIAL DAMAGES. Commissioners appointed by the court to appraise the damages for the taking of land for sewer purposes by an incorporated village have power to award damages only for the actual taking of land, and not consequentia damages resulting from a nuisance created by the discharge of sewage, when the village charter prescribes no rule for the assessment, and does not determine what shall constitute elements of damage. Stewart v. Village of Rutland, (Vt.) 420.

18. STREET IMPROVEMENTS-ASSESSMENTS.

When there is power given this court to make an assessment for street improvements, it is the duty of the court to see that a proper one is made, and the necessary steps will be taken to ascertain the facts. State v. Township of Kearney, (N. J.) 442.

Control of Streets.

19. EASEMENT-ERECTION OF WATCH-HOUSE IN HIGHWAY.

The easement acquired by a town by the laying out of a highway, does not include a right to erect a watch-house within the limits of the highway. Tven of Winchester v. Capron, (N. H.) 795.

20. CITY OF HOBOKEN-GRADING STREETS - CONSTRUCTION OF P. L. 1866, PAGE 941.

The act entitled "An act to provide for the draining of certain low lands lying in the city of Hoboken and the township of Weehawken" (P L. 1866. p. 941) did not take from the common council of the city of Hoboken the power to alter and fix the grade of streets in the city delineated on the grade map mentioned in and confirmed by the second section of the act of 1866. State v. City of Hoboken, (N. J.) 655.

Obligations and Liabilities.

21. CONTRACT TO PURCHASE LOT FOR PUBLIC BUILDING ORDINANCE RESOLUTION RESCISSION.

The city of Scranton, by ordinance, directed its clerk to advertise for proposals for a lot to be used as a site for a city building. The clerk did so, and A. answered the advertisement, proposing to sell his lot at a certain figure. His proposal, with others, was referred to a committee, with instructions to have the proposals printed for the use of councils, which committee submitted a report recommending the acceptance of A.'s proposal. This report was indorsed, "Within report was read in select council, and adopted;" and similarly indorsed as to common council; and was marked, "Approved," by the mayor. A. thereupon executed a deed, and submitted a brief to the city solicitor. Councils subsequently adopted a resolution rescinding the acceptance, whereupon A. brought suit for the purchase money. Held, that the acceptance, to be binding on the city, should have been by ordinance, or, at all events, A. should have shown that all the legal requirements for the finst passage of a bill in councils had been complied with; and that the city was not liable. Fuller v. City of Scranton, (Pa.) 467.

22. BRIDGES-TOWNSHIP-NEGLIGENCE-INJURY-LIABILITY-USE.

A township is not required to assume that its bridges will be used in an unusual and extraordinary manner, either as regards great speed or the passing of a very large and unusual weight, and its liability stops with constructing and maintaining them so as to protect against injury by a reasonable, proper. and probable use thereof, in view of the nature and extent of the travel and business on the road. McCormick v. Township of Washington, (Pa.)164. 23. BRIDGE-CANAL-OBLIGATION TO GUARD STREETS.

In a certain borough traversed by a canal, the tow-path ran immediately along the edge of said canal, and was in active use. Adjoining the tow-path, and without any fence between, was a narrow street, upon which certain mill properties fronted. A public street of the borough ran at right angles to the said street and tow-path, and crossed the canal by a bridge, the sides of which were sufficiently protected. There were no guards on the edge of the towpath or elsewhere except directly on the bridge. A., a night hand in the fac

tory fronting on the street running parallel to the tow-path, started, shortly
after midnight, to cross the bridge, in order to procure water. While engaged
on this errand, he fell from the edge of the tow-path into the canal at a point
seven or eight feet from the bridge, and was drowned. An action was brought
by his widow to recover damages from the borough, alleged to have been oc-
casioned by the negligence of defendant in failing sufficiently to guard the
approaches to the bridge. Held, that the defendant was under no duty to
guard the canal, and that the nonsuit entered by the court below was prop-
erly entered. Reinhardt v. Borough of South Easton, (Pa.) 532.

Officers.

24. EXPIRATION OF TERM-CONTINUANCE IN OFFICE-CITY OF BALTIMORE.
In the absence of any express provision authorizing them to continue in
office, officers appointed for a stated term are entitled, on the expiration
thereof, to remain in office, and fulfill the duties until their successors have
been duly qualified, and are entitled to the payment of their salaries during
such continuance. Robb v. Carter, (Md.) 282.

25. SALARIES-WARRANT FROM COMPTROLLER-MANDAMUS.

Where a plaintiff has a warrant from the city comptroller directed to the
register, and requiring him to pay the amount therein mentioned out of the
appropriation for salaries, he is entitled to a writ of mandamus to enforce
payment, as the duties of a treasurer are merely ministerial, if the warrant
be perfect on its face. Id.

Bee CERTIORARI; RAILROAD COMPANIES, 15; SCHOOLS AND SCHOOL-DISTRICTS.

MURDER. See ABORTION; ASSAULT AND BATTERY; HOMICIDE.

MUTUAL ACCOUNTS. See STATUTE OF LIMITATIONS, 3, 4.
MUTUAL BENEFIT COMPANIES. See LIFE INSURANCE, 1, 2.
MUTUAL INSURANCE COMPANIES. See FIRE INSURANCE, 1.

NAVIGABLE WATERS. See WATERS AND WATER-COURSES, 1-3.

1. NEGLIGENCE, WHAT IS.

NEGLIGENCE.

What Amounts to.

So far as the defendant is concerned, negligence may be defined as the fail-
ure to perform some act required by law, or doing the act in an improper
manner. Nolan v. New York & N. H. R. Co., (Conn.) 106.

2. RAILROAD COMPANIES-TRESPASSERS-DUTY.

A railroad company is under no obligation to locate its tracks, and adjust
the running of its trains, so as to make it safe for persons unlawfully to tres-
pass on its right of way. Id.*

8. BRIDGE-RAILROAD.

Where bridges were built by an iron company across a railroad, in going
under which a brakeman sitting on the top of a freight car did not stoop suffi-
ciently low, and was knocked off and killed, there was no negligence on the
part of the iron company sufficient to give a cause of action. Stoneback v.
Thomas Iron Co., (Pa.) 721.

The law determines the duty; the evidence shows whether the duty was
performed. What duty rested upon the defendant? is a question of law.
Was that duty properly performed? is a question of fact. Nolan v. New York
& N. H. Ry. Co., (Conn.) 106.

B. QUESTION FOR JURY.

The plaintiff gave evidence to prove that he was driving his wagon along
one of the tracks of the defendant's horse railroads, when a car came out sud-
denly from the station on a spur leading to the main track, and faced him.
Instead of attempting to turn off the track, he urged his horse on, and tried
to pass the car before it barred his way, but failed to clear it. Held, that the

question whether he was guilty of contributory negligence in driving on in-
stead of turning from the track should be decided by the jury. PATERSON,
J., dissenting. Orange & N. H. R. Co. v. Ward, (N. J.) 331.

6. CONTRIBUTORY NEGLIGENCE-NONSUIT-QUESTION FOR JURY.

If it appear by plaintiff's evidence that his own negligence caused the in-
jury of which he complains, or contributed to it in such way that but for it
the plaintiff would not have received harm from the defendant's negligence,
the court should nonsuit, and error may be assigned upon its refusal; but when
the evidence leaves that fact in uncertainty, it is the duty of the judge to sub-
mit the evidence, under proper instructions, to the jury for their decision. Id.
7. SUFFICIENT TO CAUSE NONSUIT.

If, at the close of plaintiff's evidence, it clearly appears that he has failed
in the duties required of him to avoid injury and contributed in any degree
to the accident, he should be nonsuited. Berry v. Pennsylvania R. Co., (N. J.)
303.

8. CONTRIBUTORY NEGLIGENCE-WHEN QUESTION FOR JURY.

But if some negligence on part of the plaintiff does not clearly appear, the
question should go to the jury. Id.*

9. TRIAL-CHARGE-EVIDENCE.

A., being enciente, boarded a street car of defendant company, B., and, while
thereon, the car, at a sharp curve, jumped the track; A. being thrown or slip-
ping from the seat to the floor of the car, upon her hands and knees. As a
result of this accident, she being previously in good health, A. testified that
she had a miscarriage, and suffered other injuries. B. produced testimony to
the effect that A. had been treated for various diseases during 20 years prior
to the accident, and that the miscarriage was not the result of the accident,
but of the previous diseases to which she had been subject. The court charged
the jury, as requested, that the fact that the car ran off the track raised a pre-
sumption of negligence, and that, to exonerate B., absence of the slightest
negligence must be shown by B., and that B. could not have prevented the
accident by the exercise of the highest degree of care. The court further
left to the jury to determine whether or not Ã. was in good health at the time
of the accident. Held, that the charge was correct. B. objected to some
medical testimony admitted by the court, showing A.'s condition subsequent
to the accident. Held, further, to be correct. Reading City Pass. Ry. Co. v.
Eckert, (Pa.) 530.

Contributory Negligence.

10. RAILROAD COMPANIES-DUTY OF PERSON CROSSING TRACK.

A person about to cross a railroad track is charged with the duty of look-
ing and listening for the approach of trains. Berry v. Pennsylvania R. Co.,
(N. J.) 303.*

11. FLAG-MAN-SIGNALS.

He is also charged with the duty of looking for a flag-man, and obeying the
signals he gives, if given in time to avoid collision. Id.

12. PRESUMPTION, WHEN FLAG-MAN IS NOT AT CROSSING.

When he knows that a flag-man is habitually stationed at a crossing, and,
upon looking, finds that the flag-man is not at his post giving signal of danger,
he has a right to presume that a train is not about to pass. Id.

18. CONTRIBUTORY NEGLIGENCE.

But absence or negligence of a flag-man will not excuse the traveler about
to cross the track from looking both ways and listening. Id.*
14. PERSONS OF TENDER AGE.

The tender age of a person cannot have the effect to raise a duty when nons
existed; but in cases where certain duties exist, infants may require greater
care than adults, or a different kind of care. Nolan v. New York & N. H. R.
Co., (Conn.) 106.

15. PLEADING-ADMISSION OF DEMURRER.

Where the demurrer to a complaint admits a cause of action, in the absence
of proof the plaintiff can recover nominal damages only; but when the proof
is in, and the facts are found, the admission of the demurrer has no effect,
except to carry nominal damages and costs, if the facts, independent of the
pleadings, show that the defendant is not liable. Id.

Actions for Death.

16. MISJOINDER-EFFECT OF VERDICT.

Under the provisions of the act of April 26, 1855, (P. L. 309,) the widow of
a person whose death has been caused by negligence should alone bring suit
to recover damages, without joining the minor children. Where, however,
such minor children are joined, and there is a trial on the merits, the supreme
court will not reverse after verdict and judgment. Philadelphia, W. & B. R.
Co. v. Conway, (Pa.) 362.

See CARRIERS; ERROR, 3, 4; MASTER AND SERVANT, 7-15; RAILROAD COMPA-
NIES, 13.

NEWLY-DISCOVERED EVIDENCE. See NEW TRIAL, 1.

NEW TRIAL.

1. NEWLY-DISCOVERED EVIDENCE.

A new trial will be granted where evidence has come to light, showing that
it was physically impossible for a person to have taken part in a matter set
out in a document, or to have executed such document, even though evidence,
by way of comparison, questioning the validity of the signature, has been
offered at the trial. Knowles v. Northrop, (Conn.) 269.

2. APPEAL-IMMATERIAL EVIDENCE-MOTION TO SET ASIDE VERDICT.

When evidence immaterial to the issue has been admitted as material, sub-
ject to exception, the denial of a motion to set aside the verdict on the ground
that it is against the evidence is not a finding of the fact that the immaterial
evidence did not prejudice the jury. Cole v. Boardman, (N. H.) 572.

NEXT OF KIN. See DESCENT AND DISTRIBUTION, 1.

NOMINATING CONVENTIONS. See ELECTIONS. 1.

NONSUIT. See EJECTMENT; Negligence, 6, 7; TRIAL, 5.

NOTICE. See APPEAL, 2; ASSIGNMENT FOR BENEFIT OF CREDITORS, 1; JUDG-
MENT, 4, 5.

OATH.

ADMINISTERING OATH-KISSING BIBLE.

When a witness accepts the form of an oath as usually administered, with-
out objections, except kissing the Bible, the court is justified in presuming
that the witness intended that her conscience should be bound. Pullen v.
Pullen, (N. J.) 82.

OBSTRUCTING HIGHWAY. See WAYS, 4-6.

OFFICE AND OFFICER. See CONSTABLE; CORPORATIONS, 2, 3; INTERNAL REV-
ENUE; MUNICIPAL CORPORATIONS, 24, 25; TAXATION, 7, 8.

OPTIONS. See CONTRACT, 6; PRINCIPAL and Agent, 5.

ORDER. See ASSIGNMENT, 2.

ORPHANS' COURT. See EXECUTORS AND ADMINISTRATORS, 12-14; GUARDIAN
AND WARD, 1.

1. MANUMISSION OF CHILD.

PARENT AND CHILD.

A father may so manumit his minor son as to authorize him to receive the
compensation for his labor, and control and enjoy the same. Delaware Co.
Nat. Bank v. Headley, (Pa.) 464.*

2. WHAT CONSTITUTES MANUMISSION.

A son was employed by a firm of which his father was a member, was paid
his wages regularly, similarly to the other employes, was permitted by his
father to invest his savings in the stock of a building association, which he

(the son) afterwards sold, and deposited the proceeds in bank in his own name.
Held, these facts were ample to submit to the jury as tending to prove a man-
umission.

Id.*

8. DEFENDANTS-IRREGULARITY-MISJOINDER OF PARTIES.

In the action by the son against the bank to recover the deposit, the father.
by his own voluntary act, had his name added to the record as a party defend-
ant. Held, that his objection to the irregularity could not be considered by
the supreme court. Id.

4. WAGES OF MINOR.

When a minor son makes a contract for his services on his own account,
and his father knows of it, and makes no objection, the father cannot recover
of the employer wages which he has paid to the son; and in such a case the
question is not whether the son was emancipated or not, but whether the
father knew of the contract, and made no objection. Atkins v. Sherbino,
(Vt.) 703.
See CONTRACT, 3; DESCENT AND DISTRIBUTION, 3.

PAROL EVIDENCE. See EVIDENCE, 4-9.

PARTIES. See ACTION OR SUIT, 2, 3.
PARTITION.

1. ALLOTMENT-BIDS FOR PURPARTS-MANNER OF BIDDING.
Under the Pennsylvania statute (April 22, 1856, § 10) the parties entitled in
partition have the right to bid, in writing, for any part, any sum exceeding
the valuation, and the part is then allotted to the highest bidder.
The prac
tice of allotting purparts on oral bids is not only pernicious, but contrary to
the statute. Sutton's Appeal, (Pa.) 6.

2. ESTOPPEL.

Where all the parties in interest appear in court, and orally bid for purparts
under proceedings in partition, and one of the parties accepts a purpart al-
lotted to him under such a bid, he is estopped from setting up afterwards that
the bids on the other purparts should be rejected because they are not in
writing, as required by the statute.
Id.*

PARTNERSHIP.

1. EQUITIES BY CREDITOR OF MEMBER AGAINST FIRM.

A person giving credit to an individual has no equities against the firm of
which the debtor is a member. Scoville Manuf'g Co. v. Lindsey, (N. J.) 98.
2. ATTACHMENT-ASSIGNMENT DAMAGES FOR ILLEGAL ATTACHMENT.

The individual interest of a copartner in the firm effects is attachable by
seizure of the effects, although the partner sued had at the time largely over
drawn his account with the firm, and upon the winding up of the concerns of
the firm there would be nothing coming to him, which facts were made known
to the attaching creditor. His legal interest in the firm effects remains, sub-
ject to the equitable lien of the copartners, and is attachable, even though.
upon sale, the purchaser would get only a right to an account which would
profit him nothing. The copartners cannot impair the right of the attaching
creditor, by agreeing after the attachment to a dissolution of the copartnership.
Under Pub. St. R. I. c. 237, § 12, the attachment, and the right to retain or
remove the goods attached, ceased, upon making and recording an assignment
for the equal benefit of creditors, etc., by the copartner debtor, and the plain-
tiffs are entitled to damages for injury resulting from the detention and re-
moval. The other copartners have the right to sue and to recover said dam-
ages, and the assignee of the assigning copartner has not. Trafford v. Hub-
bard, (R. I.) 762.

8. ACTION-RULE OF COURT-Record-AFFIDAVIT-PARTNERSHIP.

Where defendants are sued in Crawford county, Pennsylvania, as partners,
under the rule of court, in the absence of an affidavit denying the fact of
partnership as alleged on the record, plaintiff is not required to prove it.
Shamburg v. Abbott, (Pa.) 518.

See CORPORATIONS, 4, 5; FRAUDULENT CONVEYANCES, 2; GUARDIAN AND WARD, 2.

PASSENGERS. See CARRIERS.