LOUISVILLE & N. R. Co. v. GINLEY, Tenn., 45 S. W. Rep. 348. 65. MASTER AND SERVANT-Vice principal.-The relation of a section master of a railroad company, having the right to hire and discharge hands, to a hand em. ployed by him, and working under his orders, is that of vice-principal.-JOHNSON V. SOUTHERN RY. Co., N. Car., 29 S. E. Rep. 784. 66. MECHANIC'S LIEN-Amendment.-After time for filing lien has expired, it being defective on its face, in containing only a lumping charge, while filed by a subcontractor, amendment may be had to make it against S and N, "owners," so as to make plaintiff a contractor, instead of a subcontractor, it being al leged that N, named in the lien as contractor, and with whom plaintiff contracted, was in reality the owner, and put title in S to defraud creditors.-JACOB BOHEM & BROS. V. SEEL, Penn., 39 Atl. Rep. 1009. 67. MORTGAGES-Bona Fide Purchaser-Assignment. -A mortgage on land was unrecorded. The mortgagor conveyed the land, and the grantee recorded the deed, and gave another mortgage, which was recorded, and assigned for a valuable consideration to a pur chaser claiming to be without notice: Held, that a purchase in good faith would be presumed, and the burden of proving notice would be on the holder of the unrecorded mortgage.-HULL V. DIEHL, Mont., 52 Pac. Rep. 782. 68. MORTGAGES-Foreclosure-Waiver of Lien.-Under Code Civ. Proc. § 726 (providing that, when a mortgage is given to secure a debt, there can be but one action for its enforcement), after a sale by the mort gagee of part of the mortgaged premises, under an attachment levied prior to the giving of the mortgage which secured the payment of the notes upon which the attachment was issued, no action can be maintained to foreclose the mortgage on the residue of the premises, although it belongs to one who was a mere surety for the defendant in the attachment suit.COMMERCIAL BANK OF SANTA ANA V. KERSHNER, Cal., 52 Pac. Rep. 848. 69. MORTGAGES-Presumption of Payment.-A decree of foreclosure was rendered in an action in which a subsequent grantee of the mortgagor was joined. After the decree had become absolute, a third party purchased the land, agreeing that the mortgagor should continue as such and the purchaser as mort. gagee: Held, that the decree in foreclosure was an enforced admission of the mortgage debt, effectual to repel the presumption of payment by lapse of time in favor of grantee subsequent to mortgage.-BLAISDELL V. GREENWOOD, Vt., 39 Atl. Rep. 1097. An agree. 70. MORTGAGES Subsequent Contract. ment between a mortgagor and mortgagee after the mortgage was given, and before its foreclosure, based on no new consideration, that the former should take out $1,000 insurance on the mortgaged property for the benefit of the latter, which was done, does not give the mortgagee an equitable lien on the proceeds of such policy.-SWEARINGEN V. HARTFORD INS. Co., S. Car., 29 S. E. Rep. 722. 71. MUNICIPAL CORPORATIONS-Action on Contract.This being an action against a municipal corporation for a year's supply of water, in which the plaintiff's right of recovery depended upon the validity of an alleged contract between it and the defendant, covering a period of years, and the evidence not affirmatively disclosing that when the contract was originally made the municipal corporation had, in the manner prescribed by the constitution of this State, made due and lawful provision for the payment of the yearly sums to become due on such contract, it was error to direct a verdict for the plaintiff.-MAYOR, ETC., OF DAWSON V. DAWSON WATERWORKS Co., Ga., 29 S. E. Rep. 755. road by a railway company.-BANCROFT V. CITY OF SAN DIEGO, Cal., 52 Pac. Rep. 712. 73. MUNICIPAL CORPORATIONS-Streets-Dedication.Certain receivers were authorized to sell land, which they platted into city lots. They filed the plat in the cause in which the decree was passed authorizing the sale. They conveyed some lots, describing them as bounded by a certain street; and others were described as certain lots as designated on the plat, which dis closed that they abutted on said street: Held, that the street was dedicated to the use of the public.-BROUMEL v. WHITE, Md., 39 Atl. Rep. 1047. 74. NEGLIGENCE-Independent Contractor.- Where a contractor exercises an independent employment un der his contract with a municipal corporation, such corporation is not responsible for the negligence of the contractor in the performance of the contract work. JANSEN V. MAYOR, ETC., OF JERSEY CITY, N. J., 39 Atl. Rep. 1025. 75. NEGLIGENCE-Pleading and Proof. The parents of a child may recover for his death through negli gence, on proof, as alleged, that a motorman saw the child on the track in time to stop, that he failed to do so, and that his negligence was the proximate cause of the child's injuries, regardless of whether there is proof of allegations that the child was deaf, and that the motorman, on approaching him, pushed him so that he fell upon the track.-GUTIERREZ V. LAREDO ELECTRIC & RAILWAY CO., Tex., 45 S. W. Rep. 310. 77. NEGLIGENCE OF BAILEE Evidence. Finding that loss of chickens, spoiled in cold storage, was not caused by negligence of defendant, cannot be dis turbed, the only specification as to insufficiency being that the evidence shows the loss was caused by negli gently permitting the machinery to be run by an incompetent engineer, and thereby permitting the tem perature to run up, and there being sufficient evidence that the chickens were spoiled before the engineer complained of was given charge.-FANNING V. CORONADO BEACH Co., Cal., 52 Pac. Rep. 847. 78. NUISANCE Pest House Prescriptive Rights.The fact that a public pest house was not a nuisance, when erected by the city, because of its secluded loca tion, does not prevent persons who subsequently located in the vicinity thereof from obtaining redress, on the ground that they have come to the nuisance, where such building has not been maintained long enough to give the city a prescriptive right.-MAYOR, ETC., OF CITY OF BALTIMORE V. FAIRFIELD IMP. Co. OF BALTIMORE CITY, Md., 39 Atl. Rep. 1082. 79. OFFICERS-Action on Bond.-In an action against sureties on the official bond of a city treasurer to recover moneys received by him and withheld from his successor, it was not error to exclude evidence of the amount received by the treasurer from his predeces sor, when the defendants admitted that he received the funds sought to be recovered.-CITY OF GREAT FALLS V. HANKS, Mont., 52 Pac. Rep. 785. 80. PARTNERSHIP Liabilities of Withdrawing Partner. Findings that defendant had been a member of a partnership; that when he withdrew therefrom it held a number of pieces of land, for part of which it was in debted, and afterwards continued to buy land, and cre ate liabilities for the purchase thereof; that the value of the land decreased, and the partnership became lu solvent, and certain members took title in trust to the land, paying the liabilities, including those incurred before the withdrawal of defendant,-are not sufficient to support a judgment against defendant in an action for contribution, in the absence of a finding that the lands held at the time he withdrew were insufficient in value to meet the obligations due thereon at the time plaintiffs took title and advanced the money. -SMITH V. KANSAS ST. IMP. CO., Cal., 52 Pac. Rep. 811. 81. PHYSICIANS-License on Diploma.-The refusal to grant a license by a State board of medical examiners, which has been succeeded by a new and distinct board, and which refusal was not appealed from as permitted by law, cannot be reviewed on a subsequent appeal from a decision of the new board refusing a license to the same party.-MILLER V. BOARD OF MED. EXAM., Oreg., 52 Pac. Rep. 763. 82. PLEADING-Statute of Limitations.-Where defendant pleads limitations as a bar to plaintiff's claim, and plaintiff relies on a new promise to remove the bar, it is unnecessary to plead specially such new promise in order to avail himself of its benefit.-CHANDLER V. DUNCAN, Del., 39 Atl. Rep. 1012. 83. PLEDGE - Warehouse Receipts.-To create a pledge or pawn, it is necessary that the property pledged shall be delivered into the possession of the pledgee, but delivery may be either actual or construc. tive, and, when warehouse receipts for cotton are delivered in pledge, the effect of such delivery is to de liver the cotton itself.-CITIZENS' BANK. CO. OF EASTMAN V. PEACOCK, Ga., 29 S. E. Rep. 752. 84. PRINCIPAL AND AGENT - Implied Contract.-A power of attorney, although obtained through fraud, which authorizes the agent to collect money, creates a contractual relation, from which arises an implied promise to pay over the moneys collected, on demand. -DE LEONIS V. ETCHEPARE, Cal., 52 Pac. Rep. 718. 85. PRINCIPAL AND SURETY-Liabilities of Surety.-A surety is liable only to the extent of his engagement, and, where a promissory note upon which he is bound as surety has been materially altered without his consent, it will be avoided as to him.-SOLICITORS' Co. v. SAVAGE, Fla., 23 South. Rep. 413. 86. PRINCIPAL AND SURETY-Note-Release.-One who signs a note as surety of a principal debtor, who at the same time executes a mortgage on his land to secure the debt, under an agreement between the surety and creditor that the latter will promptly record the mort. gage, and thereby protect the surety against loss, is released from liability by the failure of the creditor to record the mortgage within a reasonable time, whereby security sufficient to pay the debt is lost.-REDLON V. HEATH, Kan., 52 Pac. Rep. 862. 87. PROCESS Service by De Facto Deputy Sheriff.Under Rev. St. 1895, art. 4896, permitting the appointment of deputies by the sheriff to perform all the duties of their principals, acts done by a deputy who had taken the oath of office under an appointment for the special purpose of serving a writ of garnishment and a citation in a certain action, in serving such papers, are binding on the persons so served, though the limitations in the appointment were void, since the deputy was at least a de facto officer, acting under color of authority.-TRAMMEL V. SHELTON, Tex., 45 S. W. Rep. 319. Contributory Negligence. It appeared that deceased, on a bright moonlight night, started to walk across a trestle 80 yards long, and, after passing some 54 yards, was struck by an engine and killed. The track on which the engine came was straight, and the headlight could have been seen for seven-eighths of a mile from the trestle: Held, that deceased was guilty of contributory negligence.-Mo. BILE & O. R. Co. v. ROBERTS, Miss., 23 South. Rep. 393. 89. RAILROAD COMPANY Negligence.-Plaintiff was driving a wagon across a much used public bridge over a railway track. A passing locomotive sounded Its whistle directly under plaintiff's team, causing it to run away: Held prima facie negligence.-MITCHELL V. NASHVILLE, ETC. RY. Co., Tenn., 45 S. W. Rep. 337. 90. REAL ESTATE AGENT Commissions.-A real estate broker who, having a customer for property of a certain class, arranges, through an owner's agent, sat. isfactory terms of purchase of a piece thereof, result ing in a conveyance accordingly, is not entitled to commissions from the vendor, in the absence of an agreement therefor.-ADDISON V. WANAMAKER, Penn., 39 Atl. Rep. 1111. 91. REAL ESTATE AGENT - Commissions.-Real estate brokers agreed to sell property at a commission, to be paid when the property was sold or a purchaser was found. The brokers found a purchaser, and the owner authorized the sale at a net price to her, but, owing to a defect of title, the sale was not completed: Held, that under the arrangement of a net price to the owner the brokers contracted to get their commissions from the purchaser or the purchase money, and could not recover commissions of the owner when the sale was not completed.-FORD V. BROWN, Cal., 52 Pac. Rep. 817. 92. RECEIVERS - Insolvent Corporations.-Where a bill for the appointment of a receiver is entertained under general equity powers, and no injunction issued on the filing of the bill, and the insolvent corporation continued its business as usual, and those dealing with it in the interim were not influenced by the pending suit, and no attachment or other liens were placed on its property, the rights of the parties should be adjusted from the date of the appointment of the receiver. -JONES V. ARENA PUB. Co., Mass., 50 Pac. Rep. 15. 93. RECEIVER-Liabilities of Railroad Receiver.-The liability of a receiver is official, and not personal, and a judgment rendered against him is payable out of the trust property and funds brought within the custody of the court; but when it does not appear that the receivership is terminated, a mere averment that the property and funds have passed out of his possession and beyond his control will not constitute a good defense in an action against him for personal injuries alleged to have been negligently inflicted.-ERB V. PopRITZ, Kan., 52 Pac. Rep. 871. - 94. REMOVAL OF CAUSES Diverse Citizenship-Sepa. rable Controversies.-Under the act of August 13, 1888, § 2, whenever a controversy is wholly between citizens of different States, one of several defendants, being actually interested therein, a non-resident, and a citi zen of another State, may remove it to a federal court, irrespective of whether the suit involves separable controversies or only one.-HUNTER V. CONRAD, U. S. C. C., D. (R. I.), 85 Fed. Rep. 803. 95. SALES-Breach of Contract-Damages.-Damages resulting from the fact that the seller's breach of the contract of sale defeated the purpose for which the property was bought are special, and cannot be recov ered unless they were within the contemplation of both buyer and seller when the contract was made.— HARRIS V. FIRST NAT. BANK OF SPRINGFIELD, ILL., Tex., 45 S. W. Rep. 311. 96. SCHOOL TOWNSHIPS-Liability for Fraudulent Orders.-A party asking relief for a default judgment on the ground of mistake, inadvertence, surprise, or excusable neglect must also show that he has a meritori. ous defense to the cause of action.-DAVIS V. STEUBEN SCHOOL TP. Of Warren COUNTY, Ind., 50 N. E. Rep. 1. 97. SEDUCTION-Offer of Marriage.-Under Pen. Code, § 269, making marriage prior to information filled a bar to prosecution for seduction, it is no defense that defendant was at all times prior to the filing of the in formation ready and willing to marry prosecutrix, and that his failure to do so was due to her refusal.-PEOPLE V. HOUGH, Cal., 52 Pac. Rep. 846. 98. STATUTES-Construction-Repeal by Implication. -The rule of construction in respect to the repealing of statutes by implication is that the earlier act remains in force unless the two are manifestly inconsistent with and repugnant to each other, or unless some express notice is taken of the former, plainly indicating an intention to abrogate it.-IN RE MITCHELL, Cal., 52 Pac. Rep. 799. 99. TAXATION-Assessment.-One employed by a city to assist its assessor of taxes in the performance of his duties, who does not claim to be, and is not recognized as, an officer of the city, but merely an employee to assist the assessor, is not an officer de facto of said city whose acts, as such, in making an assessment of taxes, in which the rightful assessor does not participate, will be binding.-CITY OF TAMPA V. KAUNITZ, Fla., 23 South. Rep. 416. 100. TAXATION-Constitutional Law. - Const. 1890, § 112, providing that taxation shall be uniform and equal throughout the State, governs municipal taxation as well as State and county.-ADAMS V. MISSISSIPPI STATE BANK, Miss., 23 South. Rep. 395. 101. TAXATION-License Tax-Voluntary Payment.License taxes for a business, paid under an invalid ordinance subjecting offenders to a fine for each failure to pay such license, but without objection, and not through mistake or duress, must be considered as paid voluntarily, and hence are not recoverable.CITY OF HELENA V. DWYER, Ark., 45 S. W. Rep. 349. 102. TAXATION-Powers.-The police jury, in the exercise of the power of taxation with which it is clothed under the constitution and laws, met by the claim of a municipal corporation that part of the parish has been detached, and added to the municipal corporation, is not suspended in the exertion of the power of taxation by such claim of the city, but may levy the parochial taxation, and thus present for judicial determination the conflicting pretensions of city.-CITY OF LAKE CHARLES V. POLICE JURY OF PARISH OF CALCASIEU, La., 23 South. Rep. 376. 103. TAXATION-Remedy by Injunction.-The citizen sued for taxes by a municipal corporation claiming power to levy taxes on the territory embracing his property, under the proceedings by which the territory is alleged to have been annexed to such city, may re sist the collection of the taxes by injunction, when there is no law to authorize the asserted proceeding, or when at a later period the requisite law is enacted, but the record shows no substantial compliance with the statute in the proceedings on which the corpora. tion relies.-DEES V. CITY OF LAKE CHARLES, La., South. Rep. 382. 28 104. TRIAL-Credibility of Witnesses.-A jury is not bound by testimony simply because it is uncontradicted. They may discredit the witness for apparent prejudice against or sympathy for the parties, for ap. parent interest in the result, or on circumstances which in their judgment contradict his testimony.MISSOURI, K. & T. RY. Co. v. MURPHY, Kan., 52 Pac. Rep. 863. 105. TRIAL-Jury-Verdict.-Each juror wrote on a ballot the amount of recovery he deemed proper, and the sums were added, and divided by 12, to obtain an average. There was no agreement that the jury should be bound by such average, and it was not accepted as a verdict, but after further deliberation a sum in excess thereof was agreed upon as the verdict: Held, that the verdict was not reached by a "resort to the determination of chance," within Code Civ. Proc. § 657, subd. 2 allowing new trials in such cases.MCDONNELL V. PESCADERO & SAN MATEO STAGE CO., Cal., 52 Pac. Rep. 725. 106. TRUSTS-Improper Investments Trustee's Advantage. A trustee investing funds of the trust estate in bonds of a private corporation, of which he was an organizer and is a stockholder and director, deals with the funds to his own advantage, within the prohibition of Civ. Code, § 2229.-BERMINGHAM V. WILCOX, Cal., 52 Pac. Rep. 822. 107. TRUST-Resulting Trust.-Money was furnished by one person to another to buy land, which was purchased, and the legal title taken in the purchaser: Held, that a resulting trust would arise in favor of the person furnishing the money, whether or not his identical money was put into the land.-RARICK V. VANDEVIER, Colo., 52 Pac. Rep. 743. 108. TRUST AND TRUSTEE Voidable Contracts.Where one acting as the trustee and confidential adviser of his sister had $800 belonging to her in his hands for safe investment, and transferred to her in exchange a note for the same sum owing to him by insolvent persons, the transaction is voidable.-STOKES V. TER RELL, Miss., 23 South. Rep. 371. 109. USURY-What Law Governs.-A loan of money by a New York building association in Virginia to a citi zen of that State, on land located there, but made pay. able in New York, is a New York contract; and the question of usury is to be determined by its laws.WARE V. BANKERS' LOAN & INVEST. Co., Va., 29 8. E. Rep. 744. 110. VENDOR AND PURCHASER — Assignment of Purchaser's Interest.-The promise to pay the agreed price in a contract for the purchase of real estate is not binding on an assignee of the purchaser, although the obligations of the contract are extended to the assignees of the parties. -LISENBY V. NEWTON, Cal., 52 Pac. Rep. 813. 111. VENDOR AND PURCHASER- Rescission.-The fact that a vendor of land fails to perform his contract, or puts it out of his power to perform it, does not amount to a rescission, but is only ground for rescission by the purchaser.-AIKMAN V. SANBORN, Cal., 52 Pac. Rep. 729. 112. WATERS-Dam - Negligence.-In an action to recover damages for overflowing land, it was not error to refuse a nonsuit, requested on the ground that the overflow was caused by a flood which amounted to a vis major, where there was evidence that the injury was caused by the opening of flood gates in the defendant's dam.-HUNTER V. PELHAM MILLS, S. Car., 29 S. E. Rep. 727. 113. WATER RIGHTS Invasion.-Where the allega. tions of a complaint in a suit brought to determine the plaintiff's right to the use of water of a stream state, in general terms, a cause of action by alleging clearly and distinctly ownership, invasion of right, and injury, without distinct allegations of how plaint iff became the owner of a water right, whether by ap propriation, adverse user, or purchase, plaintiff's title can be shown by proof, and the allegations will be sufficient to withstand a general demurrer.-HAGUE V. NEPHI IRR. Co., Utah,,52 Pac. Rep. 765. 114. WILLS - Election of Widow.-Election of widow to take against husband's will, whereby she became entitled to half of the realty for life, and half the per sonalty absolutely, does not require immediate distribution, or prevent carrying out the scheme of the will, so far as concerns income for testator's mother during life; the will, after specific devises and be quests, giving the residue in trust to pay the income to the widow and the mother, for life, two-thirds to the former and one third to the latter, with remainders over as to the principal on death of the widow, though the final distribution will be on a basis of only half the estate.-IN RE PORTUONDO'S ESTATE, Penn., 39 Atl. Rep. 1105. 115. WILLS-Power of Sale.-Power given by testator to his executors and trustees to sell "any or all of my real estate" in case they thought it for the best inter est of the estate, authorizes the sale of his mansion house, though, after his life estates to his children and certain bequests, he gives the remainder for a home, and authorizes and directs the trustees to establish a home, and "for that purpose to set apart and hold forever" said mansion house.-IN RE ROGERS' ESTATE, Penn., 39 Atl. Rep. 1109. 116. WILLS-Revocation of Bequest by Codicil.-There was a bequest to executors, of $20,000, to pay the inter est thereof to A during life, and the principal sum to A's children after her death. There was a codicil reciting the former gift as one to the executors to pay interest to A during her life, and revoking this bequest, and directing the executors to invest $12,000, instead of $20,000, and pay the interest thereof to A during her life: Held, that the clause in the will directing the executors to pay the sum invested to A's children after her death was not revoked by the codicil.-LYON V. CLAWSON, N. J., 39 Atl. Rep. 1064. INDEX-DIGEST TO THE EDITORIALS, NOTES OF RECENT DECISIONS, LEAD- A separate subject-index for the "Digest of Current Opinions" will be found on page 536, follow- by attorney, presumption of authority, 43. of cause of action for injuries, 191, 199. ATTORNEY AND CLIENT, the summary jurisdiction of courts over attorneys the rule applied to compelling restitution is the right to other modes of procedure does not to what the summary jurisdiction extends, 26. contract with an attorney by which the control of ATTORNEY AND CLIENT-Continued. torney so that the interested party cannot settle champerty and maintenance, 199. when one agrees to pay a certain compensation for professional relations between, 252. employment, how far prevents him from taking disbarment of attorney, 252. dissolution of law partnership by election of a member thereof as a judge, 383. BAILMENT, liability of warehousemen, 30. conversion of goods by warehouseman, 337. BANKRUPTCY, the United States bankruptcy law, 181. BANKS AND BANKING, liability for the default of correspondent bank in modern view of the nature of deposits, 130. more comprehensive modern sense of term, 131. an unaccepted check does not constitute an equi- the recovery of funds paid out by check for option following trust funds, 195. equitable lien for advances, 232. has a check holder a right of action against a bank BILLS AND NOTES, signature to a note induced by fraud, 32. title notes, 215. one who embezzles money and gives a note in ac- one who accepts in writing a bill drawn on him, be- note does not become due until the last day of the rights and liabilities of the parties on a note by the laws of New York one who puts his name on estoppel to deny the genuineness of the signatures BOOKS RECEIVED, 14, 53, 91, 182, 203, 223, 264, 309, 327, where several brokers have each endeavored to recent cases on the right of real estate brokers to BUILDING CONTRACT. See CONTRACT. CARRIERS OF GOODS, discrimination by railroad company in the furnish- CARRIERS OF PASSENGERS, contributory negligence by passenger, 42, 424. liability of, for injuries occasioned by defective CHAMPERY AND MAINTENANCE. See ATTORNEY CONFLICT OF LAWS-Continued. where the injury occurs in one State and the ac- in contracts of married women, 280. the rights and liabilities of the parties on a note CONSPIRACY, validity of combinations or trusts in restraint of CONSTITUTIONAL LAW, validity of act imposing tax upon every employer validity of city ordinance prohibiting the estab- effect of allowing a defendant in criminal court to how far the grant of a lottery by a State consti destruction of animals afflicted with dangerous or validity of statutes providing for railway crossings validity of city ordinance prohibiting the sale of 192. validity of Montana inheritance tax law, 231. validity of the Utah eight hour law, 355. the fourteenth amendment and what it covers, 395. validity of Kansas statute prohibiting the transpor validity of the indeterminate sentence law, 445. 461. validity of the Nebraska maximum freight rate act, validity of city ordinance giving the exclusive CONTRACTS, penalties and liquidated damages, 5. courts will not enforce unconscionable con- how the distinction between penalties and relation of this doctrine to the modern doctrine use of the words "penalty," "penal sum" and exceptions where the various things make an exceptions in case of negative covenants, 9. |