27 L. R. A. 101, BRAITHWAITE v. HARVEY, 14 Mont. 208, 43 Am. St. Rep. 625, 36 Pac. 38.

Judgments of foreign state against executor or administrator.

Cited in Jefferson v. Beall, 117 Ala. 440, 67 Am. St. Rep. 177, 23 So. 44, holding judgment rendered in foreign state against executor of estate void; Johnston v. McKinnon, 129 Ala. 225. 29 So. 696, holding foreign judgment against administrator no ground of action in intestate's state; Price v. Ward, 25 Nev. 213, 46 L. R. A. 463, 58 Pac. 849, holding administrator without power to redeem intestate's land in another state from mortgage, by setting off waste committed by mortgagee, after intestate's death: Burton v. Williams, 63 Neb. 435, 88 N. W. 765, holding action not maintainable on foreign judgment against administrator. Cited in footnote to Smith v. Smith, 43 L. R. A. 403, which holds judgment by court of state of decedent's domicil, making family allowance to widow, not binding on lands in other state.

Statute of limitations.

Cited in Slaughter's Succession, 108 La. 494, 58 L. R. A. 409, footnote p. 408. 32 So. 379, holding bar of limitation not removed by expression of ability to pay debt, followed by part payment.

27 L. R. A. 120, HODGKINSON v. HODGKINSON, 43 Neb. 269, 47 Am. St. Rep. 759, 61 N. W. 577.

Actions by married women for tort.

Cited in Case v. Case, 45 Neb. 497, 63 N. W. 867, holding alienation of husband's affections, resulting from accusing wife of adultery, proper element of damages in action by wife for slander; Wolf v. Frank, 92 Md. 143, 52 L. R. A. 105, footnote p. 102, 48 Atl. 132, sustaining wife's right of action for alienating husband's affections: Love v. Love, 98 Mo. App. 569, 73 S. W. 255, upholding right of action by wife against husband's parents for causing husband to abandon her. Cited in footnotes to Kroessin v. Keller, 27 L. R. A. 685, which denies married woman's right to maintain crim. con. against other woman; Tucker v. Tucker, 32 L. R. A. 623, which holds parent not liable for advising son to separate from wife; Brown v. Brown, 38 L. R. A. 242, which sustains right of action in own name by abandoned wife against person causing abandonment; Houghton v. Rice, 47 L. R. A. 310, which denies right of action against other woman for alienating husband's affections, unaccompanied by adultery; Dietzman v. Mullin, 50 L. R. A. 808, and Betser v. Betser, 52 L. R. A. 630, which sustain wife's right of action for alienating husband's affections.

27 L. R. A. 121, PENNOCK v. DOUGLAS COUNTY, 39 Neb. 293, 42 Am. St. Rep. 579, 58 N. W. 117.

Rule of caveat emptor as applied to tax sale.

Followed in McCague v. Omaha, 58 Neb. 39, 78 N. W. 463, and Merrill v. Omaha, 39 Neb. 305, 58 N. W. 121, holding money paid by purchaser at illegal tax sale of land not recoverable.

Cited in Martin v. Kearney County, 62 Neb. 541, 87 N. W. 351, holding that cities of second class cannot be required to refund money to purchaser at sale of real estate for illegal municipal taxes; Norris v. Burt County, 56 Neb. 296,

101-136.]

L. R. A. CASES AS AUTHORITIES.

951

76 N. W. 551, and Adams v. Osgood, 42 Neb. 460, 60 N. W. 869, holding, in absence of statute, rule of caveat emptor applies to purchaser at tax sale.

27 L. R. A. 126, WEBSTER v. CLARK, 34 Fla. 637, 43 Am. St. Rep. 217, 16 So. 601.

Partnerships and partnership liabilities.

Cited in Marx v. Culpepper, 40 Fla. 324, 24 So. 59, holding persons holding themselves out as partners may be jointly liable for partnership debt, although no partnership in fact exists; Rider v. Hammell, 63 Kan. 736, 66 Pac. 1026, holding question whether agreement created partnership as between the parties, one of law; Sheldon v. Bigelow, 118 Iowa, 590, 92 N. W. 701, holding person holding himself out to public as partner not liable as partner to one acting without knowledge of such fact.

Cited in footnotes to Shrum v. Simpson, 49 L. R. A. 792, which holds no partnership created by contract for working farm and dividing proceeds; Carter v. McClure, 36 L. R. A. 282, which holds partnership created by subscription to stock of co-operative store, with provision for distribution of profits; Brandon v. Connor, 63 L. R. A. 260, which holds partnership as to third persons constituted by agreement by contractor for grading railroad, to give half of net profits to one furnishing mules and harness.

Construction of contracts.

Cited in New York L. Ins. Co. v. Smith, 139 Ala. 309, 35 So. 1004, holding that position taken by insurer in written notice to insured may be looked to in construing ambiguous clause in contract.

27 L. R. A. 131, PHILADELPHIA & R. R. CO. v. SMITH, 12 C. C. A. 384, 28 U. S. App. 134, 64 Fed. 679.

Notice to original wrongdoer.

Cited in Lion v. Baltimore City Pass. R. Co. 90 Md. 275, 47 L. R. A. 130, footnote p. 127, 44 Atl. 1045, holding notice to original wrongdoer unnecessary to create liability for injury to subsequent owner of property.

Liability for continuing nuisance created by third persons.

Cited in footnote to Rockport v. Rockport Granite Co. 51 L. R. A. 779, which holds landowner liable for permitting guy rope to derrick to remain stretched across highway.

Liability for damming back water of stream.

Cited in note (59 L. R. A. 859, 860, 904) on liability for damming back water of stream.

27 L. R. A. 136, FIELD v. LAMSON & G. Mfg. CO. 162 Mass. 388, 38 N. E. 1126. Preferred, guaranteed, and interest-bearing stock.

Cited in Daley v. People's Bldg. Loan & Sav. Asso. 172 Mass. 535, 52 N. E. 1090, holding covenant of building and loan association to pay certificate holder par value of shares at certain date not absolute; Savannah Real Estate, Loan & Bldg. Co. v. Silverberg, 108 Ga. 289, 33 S. E. 908, holding certificate stating holder to be entitled to one share of preferred building and loan association stock, mere evidence of indebtedness; Mercantile Trust Co. v. Baltimore & O. R.

952

L. R. A. CASES AS AUTHORITIES.

[27 L. R. A.

Co. 82 Fed. 370, holding city holding railroad corporation stock, interest and dividends being payable from "profits," not a creditor of such corporation.

Cited in footnotes to Hamlin v. Toledo, St. L. & K. C. R. Co. 36 L. R. A. 826, which holds holders of nonvoting preferred stock not entitled to any capital until all creditors provided for; Sumrall v. Columbia Finance & Trust Co. 44 L. R. A. 659, which holds void, issuance of preferred stock by loan association; Heller v. National Marine Bank, 45 L. R. A. 438, as to extent of lien of preferred stock.

27 L. R. A. 154, HOWSER v. CUMBERLAND & P. R. CO. 80 Md. 146, 45 Am. St. Rep. 332, 30 Atl. 906.

Presumption of negligence from happening of event.

Cited in Western U. Teleg. Co. v. State, 82 Md. 311, 31 L. R. A. 576, 51 Am. St. Rep. 464, 33 Atl. 763, holding killing of boy by broken electric wire, one end having fallen from pole to street, prima facie evidence of negligence; Benedick v. Potts, 88 Md. 57, 41 L. R. A. 480, 40 Atl. 1067, holding defendant not liable for injury to plaintiff, falling in unexplained manner from car on switch-back railway; Winkelmann & B. Drug Co. v. Colladay, 88 Md. 91, 40 Atl. 1078, affirming judgment for plaintiff hurt by falling of dumb waiter, caused by breaking of rope for unexplained reason; Hearn v. Quillen, 94 Md. 45, 50 Atl. 402, holding falling of roof on building in course of construction, prima facie evidence of negligence; Judson v. Giant Powder Co. 107 Cal. 557, 29 L. R. A. 724, 48 Am. St. Rep. 156, 40 Pac. 1020, holding that presumption of negligence arises from fact of explosion of nitro glycerine factory; Cleveland, C. C. & St. L. R. Co. v. Berry, 152 Ind. 619, 46 L. R. A. 57, 53 N. E. 415, holding fact that plaintiff was struck by iron pin thrown from passing train not sufficient evidence of negligence; Graham v. Badger, 164 Mass. 47, 41 N. E. 61, applying doctrine of res ipsa loquitur to breaking of derrick rope at place where it had been spliced; McCray v. Galveston, H. & S. A. R. Co. 89 Tex. 171, 34 S. W. 95, holding killing of brakeman by falling of steel rail from car in front of one on which he was sitting, sufficient evidence of negligence to go to jury; Snyder v. Wheeling Electrical Co. 43 W. Va. 669, 39 L. R. A. 502, 64 Am. St. Rep. 922, 28 S. E. 733, holding falling into streets of wire charged with deadly current of electricity, prima facie evidence of negligence; Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 281, 71 N. W. 434, raising, but not deciding, question whether negligence is to be presumed from starting of machine in unknown manner; Pederson v. John D. Sprecklers & Bros. Co. 81 Fed. 208, holding that no presumption of negligence arises as to owners of tug towing schooner, by breaking of schooner breast chock through which tow line was passed; The Joseph B. Thomas, 46 L. R. A. 67, 30 C. C. A. 337, 56 U. S. App. 619, 86 Fed. 663, Affirming 81 Fed. 587, holding fact that water keg was left where it might easily roll into hold of vessel sufficient evidence of negligence; Womble v. Merchants Grocery Co. 135 N. C. 484, 47 S. E. 493, holding falling of elevator without apparent cause, evidence of negligence as to its construction; Gulf, C. & S. F. R. Co. v. Hayden, 29 Tex. Civ. App. 283, 68 S. W. 530, holding evidence that starting of machinery causing injury could only have been due to defects therein, sufficient proof of negligence. Cited in footnotes to Shafer v. Lacock, 29 L. R. A. 254, which holds negligence presumed from burning of house through fire set from sparks of fire-pot placed on roof by workmen; Wolf v. Downey, 51 L. R. A. 242, which denies liability

136-161,]

L. R. A. CASES AS AUTHORITIES.

953

of contractor for either carpenter or mason work, for injury from fall of brick from unknown cause.

Burden of proof as to negligence.

Cited in footnote to Gulf, C. & S. F. R. Co. v. Shieder, 28 L. R. A. 538, which holds burden of proving contributory negligence on defendant.

27 L. R. A. 158, PEOPLE v. BRAY, 105 Cal. 344, 38 Pac. 731.

Sale of liquor to Indians.

Cited in State v. Wise, 70 Minn. 101, 72 N. W. 843, upholding act forbidding sale of liquor to Indians, whether citizens or not.

27 L. R. A. 161, RITCHIE v. WALLER, 63 Conn. 155, 38 Am. St. Rep. 361, 28 Atl. 29.

Liability of master for torts of servant or agent.

Cited in Fiske v. Enders, 73 Conn. 340, 47 Atl. 681, holding master not liable for negligence of servant driving horses for his own pleasure, without authority; Postal Teleg. Cable Co. v. Brantley, 107 Ala. 688, 18 So. 321, holding telegraph company liable for wrongful cutting of trees by servant, within scope of authority, but in disobedience of orders; Carl Corper Brewing & Malting Co. v. Huggins, 96 Ill. App. 148, holding evidence that servant, taking day off, had purchased revenue stamps at request of and for master not sufficient to establish master's liability for servant's negligence in driving home; Baltimore Consol. R. Co. v. Pierce, 89 Md. 503, 45 L. R. A. 530, footnote p. 527, 43 Atl. 940, holding master not relieved because injury by servant is wilful and malicious; McCarthy v. Timmins, 178 Mass. 381, 86 Am. St. Rep. 490, 59 N. E. 1038, holding master not liable for negligence of driver of public carriage, while going out of his way to visit saloon; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 156, 84 Am. St. Rep. 620, 28 So. 823, holding master not liable for injury to stranger, due to practical joke by servants, although they employ his machinery therefor; Murray v. Lehigh Valley R. Co. 66 Conn. 525, 32 L. R. A. 542, 34 Atl. 506 (dissenting opinion), majority holding carrier liable to passenger for negligence of servants of another company over whose line its cars are running, subject to signals of latter company; Loomis v. Hollister, 75 Conn. 724, 55 Atl. 561, holding question whether master liable for negligence of servant in leaving horses unhitched while he went to postoffice for his paper, properly submitted to jury. Cited in footnotes to Southern Bell Teleph. & Teleg. Co. v. Francis, 31 L. R. A. 193, which holds employer not liable in trespass for employee's unnecessary cutting of trees on sidewalk while removing telephone wires; Brown v. Jarvis Engineering Co. 32 L. R. A. 605, which denies liability for negligence of employee causing injury to third person, assisting him at foreman's directions; Pierce v. North Carolina R. Co. 44 L. R. A. 316, which holds company liable for brakeman knocking or frightening boy from tender of engine; Galveston, H. & S. A. R. Co. v. Zantzinger, 44 L. R. A. 553, which sustains right to recover from company for engineer's throwing steam and water on trespasser negligently on footboard between engine and flat car; Nelson Business College Co. v. Lloyd, 46 L. R. A. 314, which holds employer liable for servant's wilful or malicious acts in course of employment; Galveston, H. & S. A. R. Co. v. Zantzinger, 47 L. R. A. 282, which sustains liability for engineer's ejection of trespasser from footboard

of engine; Dorsey v. Kansas City, P. & G. R. Co. 52 L. R. A. 92, which holds carrier liable for death of trespasser falling under wheels in escaping from rocks thrown by brakeman; Enright v. Pittsburgh Junction R. Co. 53 L. R. A. 330, which denies right to eject or frighten ten-year-old boy from rapidly moving train; Lamb v. Littman, 53 L. R. A. 852, which holds employer liable for assault by cruel overseer on minor employee; Paulton v. Keith, 54 L. R. A. 670, which denies theater owner's liability for manager obstructing service of process on actor; Lynch v. Florida C. & P. R. Co. 54 L. R. A. 810, which denies company's liability for assault by station agent as result of personal quarrel; Guille v. Campbell, 55 L. R. A. 111, which denies master's liability for injury to bystander by slipping of hook from servant's hand while pretending to throw at boys playing on cotton bales; Alsever v. Minneapolis & St. L. R. Co. 56 L. R. A. 748, which sustains liability for injuries by engineer operating blow-off cock to frighten children; Palmisano v. New Orleans City R. Co. 58 L. R. A. 405, which denies master's liability for injury to boy running blindly against moving car after release by employee who had caught and lectured him; Southern R. Co. v. James, 63 L. R. A. 257, which holds master liable for injury by night watchman shooting trespasser while running away after being arrested by him.

Cited in notes (28 L. R. A. 437) on liability of agent or servant to third per- . sons for own negligence or nonfeasance; (29 L. R. A. 94) on liability of bailee for wrongful appropriation by his servant of thing bailed.

Defendant's right to plead to amended complaint.

Cited in La Barre v. Waterbury, 69 Conn. 557, 37 Atl. 1068, holding judgment not erroneously rendered against defendant not pleading to amended complaint after notice.

27 L. R. A. 173, BOWLER v. O'CONNELL, 162 Mass. 319, 44 Am. St. Rep. 359, 38 N. E. 498.

Liability of master for independent torts of servant.

Cited in Driscoll v. Scanlon, 165 Mass. 348, 52 Am. St. Rep. 523, 43 N. E. 100, holding master not liable for injury to infant invited by driver of cart to ride with him for pleasure; Brown v. Jarvis Engineering Co. 166 Mass. 77, 32 L. R. A. 606, 55 Am. St. Rep. 382, 43 N. E. 1118, holding master not liable to servants at work on building, injured while assisting in unloading rolls of paper under order of foremen; Gray v. Boston & M. R. Co. 168 Mass. 25, 46 N. E. 397, holding carrier liable to passenger entering station, injured by act of servant in ejecting drunken man; Gibson v. International Trust Co. 177 Mass. 103, 52 L. R. A. 929, 58 N. E. 278, holding master not liable for injury to passenger in elevator through negligence of janitor riding as passenger; Perlstein v. American Exp. Co. 177 Mass. 532, 52 L. R. A. 960, 59 N. E. 194, holding evidence to show that driver had no authority from master to go on street where collision occurred competent; Brown v. Boston Ice Co. 178 Mass. 110, 86 Am. St. Rep. 469, 59 N. E. 644, holding master not liable for act of servant in striking boy with ax handle for breaking employer's ax; McCarthy v. Timmins, 178 Mass. 381, 86 Am. St. Rep. 490, 59 N. E. 1038, holding master not liable for negligence of driver while out of his way visiting saloon; Davies v. Eastern S. B. Co. 94 Me. 385, 53 L. R. A. 241, 47 Atl. 896, holding carrier by water not liable for nondelivery of telegram received by captain for passenger; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 156, 84 Am. St. Rep. 620, 28 So. 823, holding master not