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preliminary one of two dollars, without alleging that
the above statutory requirement had been complied,
with.— ^nvi^ Min. Co. v. Sherman, Wis., 42 N. W. Rep. 226.

19. Corporations- Treasurer. Held, that plaint-
iff had ratified the action of its treasurer in depositing
funds with firm which failed and therefore could not
hold him personally liable for the loss.— Aetr York, P. ^
B. R. Co.v. Dixon, N. Y., 21 N. E. Rep. 110.

20. Corporations. Charter rights cannot be ac-
quired by lessee of a corporation without the assump-
tion at the same time of the charter duties. — Mayor v.
23rd St. Ry. Co., N. Y., 21 N. E. Rep. 60.

21. Corporation — Building Associations. One

who has contracted with a de facto corporation, and re-
ceived the benefit of his contract, cannot ol>3ect, to the
enforcement of such contract, that the corporation,
was never legally organized, or that the law under
which it was organized is unconstitutional, as such an«

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objection la available only to the State. — Winget v.
Quincy BitUding (f Homettead Aun., III., 21 N. E. Rep. 12.

22. COBPORATION8. Under Civil Code Cal. § 2309,

providing that authority to execute an instrument re-
quired by law to be in writing can only be conferred by
writing, a mortgage of real property of a corporation,
executed by an agent whose only authority is verbal, is
void.— ^tt« Min. Co. V, AUa Placer Min. Co., Cal., 21 Pac.
Bep. 873.

23. COCMTIBS-Division. How. St. Mich. %% 468, 460,

relating to settlements between the respective boards
of supervisors, where two counties are formed out of
one, do not contemplate any other division than of ex-
isting property and liabilities, nor provide for the
assumption by one county of the whole burden of State
taxation for both counties until the next equalization.
^Superciaort v. Superriaon, Mich., 42 N. W. Rep. 170.

24. CoxjVTiKB— Census. The object of appointing

a census taker in the organization of new counties is to
ascertain the truth of the statements contained in the
memoriiil presented to the governor; the census taker
should confine himself to those who are bona >{(fe in-
habitants In the county at the time of the presentation
of the memorial. — State v. Robertaon, Ean., 21 Pac. Kep.

26. CouBTS- Costs. A suit to foreclose a tax oer-

tlfioate cannot be continued in order to render a
judgment for costs, after a redemption of the certifi-
cates. The cause of action is the certificate, and the
costs are but an incident, which necessarily falls when
the cause of action ceases to e^lst.— Two Bioen Manufg.
Co, V. £eyer. Wis., 42 N. W. Rep. 282.

26. Cbimival Law — Alibi. The rule in Georgia,

consists of two branches: The first is that, to over-
come proof of guilt strong enough to exclude all
reasonable doubt, the anut is on the accused to verify
his alleged alibi, not beyond reasonable doubt, but to
the reasonable satisfaction of the jury. The second is
that, nevertheless, any evidence whatever of aiUH is to
be considered on the general case with the rest of the
testimony, and, if a reasonable donbt of guilt be raised
by the evidence as a whole, the doubt must be given in
favor of innocence. — Harrison v. State, Qa., 9 S. E. Rep.

27. Cbihinal Law— Perjury. Where a public school

teacher, on making affidavit, as required by law, to the
check drawn by the trustees on the county treasurer
for his pay, makes a false statement, he may be prose-
cuted for perjury, under Pen. Code Tex. art. 188. —
O* Bryan v. State, Tex., 11 8. W. Rep. 443.

28. Cbiminal Law— Murder. How far intoxication

may be an excuse for committing murder. — TerrUl v.
State, Wis., 42 N. W. Rep. 248.

29. Criminal Law— Embezzlement. Where the

evidence tends to show that defendant concealed the
facts as to the disposition inaae by him of some of the
property intrusted to him as agent for sale on certain
prescribed terms, and that he rendered a false account
of his agency in regard to it, and that a demand was
made on him for the property in question, which he
failed to comply with, a conviction for embezzlement is
warranted.- 5<a<ei;. Pierce, Iowa, 42 N. W. Rep. 181.

80. Criminal Law— Record. A judgment of con-
viction will not be reversed on the ground that the
clerk certified that the testimony taken before the
grand jury was read to the trial jury, and that no other
evidence was offered by either party, as the clerk had
no authority to make such certificate.— State r. Tumey,
Iowa, 42 N. W. Rep. 190.

81. Criminal Law— Murder. Conviction of murder

in first degree warranted by the facts. — People v. Kelly,
N. Y., 21 N. E. Rep. 122.

82. Criminal Law — Rape. On a ti ial for rape,

where there was evidence of the unchaste character of
the prosecuting witness, and the defense was consent,
it was error to instruct that the evidence of character
was introduced only to affect the credibility of the
prosecuting witness, as such evidence was proper to

render the consent more probable.— Cam«y v. State, Ind.,
21 N. E. Rep. 48.

88. Criminal Law— Bigamy. It is not proper for

the court to charge that if the defendant has by his
acts induced others to believe, or the public to believe,
that the defendant has cohabited with more than one
woman, th§n his acts are unlawful. — United States v.
Lang ford, Idoho, 21 Pac. Rep. 409.

84. Criminal Law— Intent to Kill. Where the in-
dictment charged defendant with shooting at H with
intent to kill H, and the evidence showed that he in-
tended to kill J, an insCmction that if the jury find that
defendant shot at J intending to kill him, but wounded
H, they should find him guilty, is erroneous. — People v.
RoHnton, Utah, 21 Pac. Rep. 403.

85. Criminal LAW-Cattle Brands. Sufficiency of

evidence to prove felonious marking of sheep of
another, evidence must identify sheep marked by de-
fendant with his own brand.— People v, Svazey, Utah, 21
Pac. Rep. 400.

86. Damages— LiqHldated. A manufacturer agreed

to deliver a harvester to plaiBtifl, with contract of war-
ranty, in exchange for a machine belonging to plaintiff,
the latter agreeing to pay in addition thereto a named
sum, and, in case the harvester should not do good
work, the plaintiff was not to pay any money in con-
sideration of the exchange: Held, that such contract did
not c6me within the exception of the statute, and that
evidence was admissible of the actual damage sus-
tained by plaintiff from a breach of the warranty. —
Qreerdeafv. Stockton, etc. Worke, Cal., 21 Pac. Rep. 869.

87. Deed— Construction. When an estate is lim-
ited in ultimate remainder to the right heirs by blood
of the wife, though not to take effect in possession
until the death of the husband, the persons contem-
plated to take Ui remainder are those kindred of the
wife who, according to the laws of inheritance, would
take by descent at her death. — Harrison v. Jones, Ga., 9
8. E. Rep. 527.

38. DowBR^Moitgage. Where a purchaser of the

equity of redemption, under a mortgage iu which the
wife of the mortgagor joined, is not bound to pay the
mortgage debt, but does in fact pay it in aid of his own
title and estate, whereby the mortgage is discharged,
the wife's claim of dower is subject in equity to a Just
contribu^on. — Everson v. McMuUen, N. Y., 21 X. E. Rep.

89. Drainage— Procedure. All that a complaint

to collect a drainage assessment need show is (1) that
some notice of the filing of the petition for the drain-
age was given ; (2) tlie filing of such petition; (8) the
report of the commissioners of the benefits and dapi-
ages assessed; (4) the approval and confirmation of
such report by the court; and (6) the assessment, or a
copy thereof .—CAan^ v. State, Ind., 21 N. E. Rep. 45.

40. Drainage. Section 10, of the Indiana drainage

act, providing that after the construction of a drain the
surveyor of the county in which proceedings therefor
were had shall keep the drain in repair to the full
dimensions, aa required by the original specifications,
commits the propriety of such repairs to the discretion
of the proper county surveyor. — Kirkpatrick v. Taylor,
Ind., 21 N. E. Rep.21.

41. Elections and Voters. A disregard of con-
stitutional or statutory directions, except as to the
time and place of holding the election, relating to the
manner of conducting it, and which does not affect the
result as a fair expression of the popular will, does not
warrant a rejection of the vote cast.— State v. Nicholson,
N. Car.. 9 S. E. Rep. 545.

42. Eminbkt Domain. Under § 26 of the "rapid

transit act," an elevated railroad company may con-
struct a curve so as to make a connection betweeil two
of its own distinct lines of road, and may take private
property for that purpose.- /n re Union El. Ji. Co,, N. Y.,
21 N. E. Rep. 81.

43. Estoppel Where one who had entered into

an agreement for the conveyance of land represents to

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one about to make a loan to the yendee, and take a
mortgage therefor, that the latter had a safflcient in-
terest In the land to make the mortgage good, the
Tendor is estopped from afterwards asserting that the
Tendee did not have a mortgable Interest in the land.—
WUehari v. Hedrick, Ind., 21 N. B. Rep. 30.

44. EviDENCB. It is the duty of the trial court to

<3eclare the legal effect of all written instruments sub-
mitted in evidence ; but a letter is not generally such
an instrument. To make it such it must constitute a
•contract.— Church v. MeUviUe, Oreg., 21 Pac. Rep. 887.

45. ExBonnoN. The levy of execution on land as

the property of defendant is sufficient to keep the
Judgment alive, though the land was not defendant's
property at the time. — Long v. Wights Ga., 9 8. E. Rep.

46. ExBCunoN — Under Code Iowa, % S137, providing
proceedings supplementary to execution a referee has
jurisdiction to issue warrant for arrest of the debtor on
the required proof being made. — Marriage v. Woodruff,
Iowa, 42 N. W. Rep. 198.

47. ExsGDTioM. — s — Affidavit in proceedings supple-
mentary to execution may be amended after II de-
murrer to it has been sustained. Question as to the
sufficiency of affidavit here. — Burketl v, BoweUf Ind., 21
N. E. Rep. 88.

48. BXS0UTOR8 A.VD Admimistbators— Salcs. An

administrator's sale of land on a petition which merely
<lescril>es the land sought to be sold, and states that it
is an unperfected claim under the homestead laws, and
<loes not state its value, or whether improved or unim-
proved, productive or unproductive, occupied or
vacant, and the like, is void for want of jurisdiction,
where, in the order of sale, there is no recital that
proofs of the necessity for the sale for any of the statu-
tory purposes were had at the hearing. — Kertchem v.
Ceorge, Oal., 21 Pac. Rep. 372.

49. Factors and Brokers. — = — Where a real estate
broker, employed to sell land, or to find a purchaser
therefor, negotiates an exchange for other lands, his
principal himself making the contract, these circum-
stances impose no l^al duty upon the broker to ascer-
tain correctly the facts which may affect the value of
the lands received in exchange. — Coe v. Ware, BUnn., 42
N. W. Rep. 206.

60. False Imprisommeivt. Necessary allegations

in complaint for false imprisonment. — Ah. Long v.
Stemee, Cal., 21 Pac. Rep. 881.

61. Fi^ERAL Courts— Jurisdiction. Under act

Cong. 1887, a suit brought by two persons on a contract
entered into by them as partners cannot be maintained
in a district of which the defendant and one of the
plaintiffs are non-residents. — Smith v. Lyon, U. 8. C. C.
<Mo.)>38Fed. Rep. 68.

62. Garnishment. A party, in order to establish

title to a debt under proceedings in garnishment upon
execution,mu8t show that a levy was made by virtue
of the execution upon the debt, and that the law relat-
ing to such proceedings had been strictly complied
with.— Batchellor v, Richardson, Greg., 21 Pac. Rep. 892.

68. Highways. Where, after a highway has been

established, but before it is opened, the adjacent
owner, and those claiming under him, occilpy for more
than ten years the land on which such road is laid out,*
maintaining a fencj around it, and being in exclusive
possession, the public is estopped to claim a right in
the part so inclosed. — Orr v. O'Brien, Iowa, 42 N. W.
Rep. 188.

64. Highways— Discontinuance. Under How. St.

Mich. $ 1298, it is only owners and occupants who can
<}omplain of the discontinuance, and a person whose
premises are so situated that he could not reach the
discontinued way without first crossing a public street,
communicating with others in various directiohs, and
furp^hing abundant guards against isolation, has no
right to complain. — Kimbal v. Roman, Mich., 42 N. W.
Rep. 167.

66. Homestead. Where part of a tract forming a

homestead was under cultivation, and the remainder
was valuable principally for its timber trees, and the
removal of the trees would impair the security of a
judgment against the owner : Held, that the Judgment
creditor was entitled to have the owner restrained from
selling and cutting such timber trees for any purpose
other than the necessary repairs and improvements.—
Jon€$ V. Britton, N. Car., 9 S. £. Rep. 664.

66. Husband and Wifb. A married woman with

her husband's written consent, may bind her statutory
personal separate estate by her engagements in the
nature of executory contracts expressly charged
thereon in the instrument creating the liability, though
the consideration is not for the benefit of herself or her
estate.— Ftovm v. Wallace, N. Car., 9 8. E. Rep. 667.

67. Husband and Wifb. Agreement between hus-
band and wife being executed, the law will recognize
it, though, if executory, its validity might have been
denied on the ground of its being opposed to public
policy in providing for the separation of husband and
vrite.—TalUnger v. MandtrviUe, N. Y., 21 N.E. Rep. 126.

56. INJUNCTION. In ad quod damnum proceedings

against a railroad company, defendant can make the
defense that the right of way was acquired and paid
for by another company, whose rights defendant has
acquired under foreclosure of a mechanic's lien ; that
plaintifTs claim is barred by limitation; and that he is
estopped to deny defendant's right of occupancy. —
Keokuk ^ N. W, By. Co, v. Donnell, Iowa, 42 N. W. Rep.

69. INSURANCE — Accident. Held, that deceased

was not insured for the period in which he was killed,
as the order to the railroad company did not under the
circumstances amount to payment of the premium. —
McMahon v. TYav. Ins, Co., Iowa, 42 N. W. Rep. 179.

60. INSURANCB. A condition of a policy against

incumbrances is waived where the assured informed
the company's agent of such incumbrances, and the
agent wrote the application, which stated that there
were no incumbrances, and the assured signed it at his
request, and the agent stated in the application that he
had inspected the property, and recommended the risk
as free from all moral or financial ha;Bard, and was
satisfied that the answers were correct. — Reiner v.
Dwelling- house Ins. Co., Wis , 42 N. W. Rep. 208.

61. lN8URAN<fts— Conditions. Effect of provision in

a fire insurance policy issued to the plaintiff, that, in
case the assured should fail to pay the premium note
at maturity, the policy should be and remain null and
void, but that this should not prevent the company
from collecting by suit or otherwise the note, nor
should such attempt at collection be construed to re-
vive the policy, but the same should remain null and
void until payment of the note, when the policy should
be revived. — Curtin v. Phenix Ins, Co., Cal., 21 Pac. Rep.

62. Judgment- Lien. A judgment against partners

for a firm liability is a lien against their individual real
estate, and has preference over an unsecured debt of
one of them in the administration of his iissets after his
decease.— Pt'/to v. Spotts, Va., 9 8. E. Rep. 601.

63. Judgment — Res Adjudicata. So much of a

former action as was based on th^ allegation of waste
was for an injury to real property, a Judgment in such
action could not be a bar to the subsequent action for
the conversion of the wood, which was personalty. —
Mauldin v. Clark, Cal., 21 Pac. Rep. 361.

64. JUROR— Misconduct. Where it appears that

while a case is being considered by a jury two of the
jurors tell the others that they are acquainted with a
certain witness in the case, and that they do not regard
him as worthy of credit, and it appears probable that
one of the jurors was influenced in his verdict by such
statements, a new trial should be granted. — Lucas v.
State, Tex., 11 8. W. Rep. 443.

66. JUSTICE OF Peace- Appeal. A party objecting

to a decision rendered in a justice's court must in an

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No. 25

Intelligible manner, and at the time, make his objection
known. In order to have the decision reviewed by pro-
ceedings in errror. — Candray v, SHt^ftl, Iowa, 42 N. W.
Rep. 185.

66. JcsTiOB OF THS Pkacb— Habeas Corpus. Where

the jastioe has Jarlsdictlon, and the case has been con-
dacted in strict conformity with the established rules
of procedure in such cases, the sufficiency of the evi-
dence ui>on which the judgment is based cannot be
inquired into on kaJbtoM corpus. — Ex p€trU Marx, Ya., 8.
E. Rep. 476.

67. Landlord and Tenant. Evidence held not

sufficient to establish relation of landlord and tenant
between plaintiff and his sister who occupied house of
the tormer.—ColUyer v, CoUyer, N. Y., 21 N. E. Kep. 114-

68. Landlord and Tbnaivt. *-An action for use and

occupation will not lie against a party in possession of
real estate by the license of the owner.— Reed v. Lammel,
Minn., 42 N. W. Rep. 202.

69. Limitation of Actions. Indorsement on note

of part payment by the payee is insufficient to take it
out of the statute, when there is no extrinsic proof of
the time when the indorsement was made. — Mills v.
2>ari«,N. Y..21N. E. Rep. 68.

70. Loos AND LOOQINO. Under Rev. St. Wis. § 2886,

a complaint praying for a balance due for work on
logs, and alleging all the facts essential to entitle
plaintiff to a lien on the logs, but not praying for such
lien, will not support a Judgment for the lien, in the
absence of an answer. — McKenzU v. Peck, Wis., 42 N. W.
Rep. 247.

71. Malicious Prosbcution— Advice ol Counsel.

The rule in actions for malicious prosecution laid down
in Moore v. RaUway Co., 87 Minn. 147. S3 N. £. Rep. 8S4,
that it is for the court to determine whether a state of
facts, over which there is no controversy, constitutes
probable cause warranting a prosecution, followed and
applied.- G«6«rtf<mr. FulUr, Minn., 42 N. W. Rep. 208.

72. Mastbr AND Servant. Question as to whether

laborer on construction train is a fellow servant wHh
the crew manning the train. — Praiher v. Richmond <f D,
Ry. Co., Ga., 9 S. E. Rep. 530.

73. Marriage. The presumption of law founded

on cohabitation and repute, that a marriage had taken
place, will not prevail over proof of a subsequent mar-
riage in fact by one of the parties with a third person ;
but, notwithstandint? such proof, circumstantial evi-
dence, as well as direct, may be used to establish the
actual occurrence of such prior marriage. — JenJdru v.
JenMn$, Ga., 9 8. K. Rep. 641.

74. Marriage — Validity. Held, that verdict in

favor of the existence of a marriage was supported by
the evidence, though circumstantial.— (7aU v. Gall, N. Y.,
21 N. E. Rep. 106.

75. Marriage— Validity. However true it be that

what is done in contravention of a prohibitory law Is
null, and is barren of effect, the law < reates an excep-
tion, in cases of marriage contracted in good faith, in
favor of both spouses, or of one of them and of the
issue bom of such marriages. — 8ttcces$ion of Buitsiere,
La., 5 South. Rep. 668. ^

76. Mechanic's Liens. The fact that plaintiff dtCl

not finish a building, the construction of which ho had
commenced under a contract with defendant, his fail-
ure being solely due to the refusal of the defendant to
allow him to proceed with the contract, did not preclude
him from asserting his right to a lien on the building
for the contract price, less the cost of finishing it. —
CharrUey v, Hotdg, Wis., 42 N. W. Rep. 220.

77. Mines and Mining. Where mining works are

idle, time and labor of a watchman and custodian ex-
pended on the property in taking care of it Is labor
done on the claim. — Lockhart v. RoUitu, Idaho, 21 Pac.
Rep. 418.

78. Mortgage. M mortgaged his 80- acre tract to

D, his wife Joining to release her dower. M then con-
veyed the north forty-five acres to bis wife by warranty I

deed, with covenants of seizin, and that the land was
free from all incumbrances. Thereafter M gave a
mortgage to complainant on the south thirty five acrea>
his wife Joining to release her dower: Held, that the
wife had a right to insist that the south thirty five
acres be first sold under D's mortgage, before resorting
to the part conveyed to her. — Case Threikhtg-wutcMme
Co. V. MitcheU, Mich., 42 9. W. Rep. 151.

79. Mortgage. A bill of sale, not under seal»

absolute on Its face, may be shown by parol evidence
to have been given as security ; and the rule that, to
prove that a deed absolute on Its face was intended as
a mortgage the evidence must be clear, convincing, and
equivocal, does not apply.— Sett^num v. Ten Eyck, Mich.»
42 N. W. Rep. 184.

80. Mortgage. Recorded deed and agreement

held, under the facts to be a mortgage. — Baker v. Ftre-
mans* Fund Ins. Co , Cal., 21 Pac. Rep. 357.

81. Municipal Corporations. In an action against

a city for damages to plaintiff's property, caused by an
excavation in the street In front thereof, it appeared
that part of the land was well adopted to be laid out into
lots, and would be of most use and value in that form,
and that a plat of it had been made, but not recorded
so as to make it a legal addition to the city: Held, that
it was proper to allow witnesses to refer to and exam-
ine the plat with the object of showing the location and
situation of that part of the property Injured by the
excavation. — MHnzer v. City of Racine, Wis., 42 N. W.
Rep. 230.

82. Municipal Corporations— Negligence. How.

St. Mich. § 1445, imposing on municipalities the duty of
keeping streets In good repair, must be construed, as
to streets in the city of Detroit, with reference to the
provision of the charter of that city empowering the
common council to grade and pave streets, and must
not be construed to nullify such provision; but that
portion of a street which la being graded or paved mast
be closed to public travel In order to suspend the duty
to repair, and, unless it is so closed, the duty to repair»
and liability for injuries caused by the unsafe condition
of the street remain.— Southwell v. City of Detroit, Mich.,
42 N. W. Rep. 118.

88. Municipal Corporations. In an action for

the rent reserved on the lease of a pier by New York
city defendant cannot avoid liability on the ground
that the lease was not **made at public auction, to the
highest bidder," as required by Laws N. Y. 1870, eh. 383,
§ 87. Defendant having enjoyed the benefit of the lease,
is estopped t<».deny its validity.— 1/a^or v. Sonnebom, N.
Y., 21 N. E. R^. 121.

84. Municipal Corporations. In establishing a

grade for a street, and adopting plans for its improve-
ment, the common council acts Judicially, and no
recovery can be had for the inconvenience thereby oc-
casioned.- TTafton V. City of Kingston, N. Y., 21 N. B. Bep.

85. Municipal Corporations. — Evidence considered
sufficient to Justify a verdict charging a municipal cor-
poration with negligence in the oohstructlon of a
culvert, and to Justify the verdict as to the amount of
ftamages. — Buchanan v. City ofDuiulh, Minn., 42 N. W.
Rep. 204.

86. Municipal Corporition. Under Rev. St. Ind.

1881, §8103, as to interstate ferries, the city council can
make only such regulations as are conformable to the
regulations of the county commissioners, and a com-
plaint for violating on Sunday, an ordinance of a city
on a t>order stream, will be dismissed, as it may reason-
ably be inferred that the regulations of the county
commissioners did not require this on Sundays. — CUy

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 147 of 151)