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for injuries sustained by reason of alleged defective
highway where defendant urged that the accident was
caused by the action of plaintilTs horse, unmanagable
on account of defective harness, and where the court
was asked to charge Uiat if the accident was caused by
the uncontrollable struggle of a choking horse their
verdict must be for defendant, to which the court re-
plied "refused unless plalntlft by his negligence contrlb-
utedTor was the cause of the uncontrollable struggle
of the horse: Held, error.— Ckmftere Tp, v, PhilHpt, 8. O.
Penn^ Oct. », 1888; 16 AtL Bep. 26.

161. NXGLIGBVOB— Passengers— Bailroads. A rail-
road is not liable for injuries to a passenger sustained
In attempting tp alight from a moving train, which had
passed the passenger's destination without stopping.—
Watson V. Qa. P. M, Co,, 8. O. Ga., Oct. 12, 1888; 7 8. E»
Bep. 864.

162. PABTiTioir-Squlty— Pleading— Amendment.

A bill In equity for partition, filed by the heirs of a de-
cedent, may be amended by adding the name of the
widow as a party thereto, and by adding to the prayer,,
"and such other relief as they may be entitled to in the
premises."— JpiMoi of Cowan, 8. 0. Penn., Oct. 29, 1888; 1&
Atl. Bep. 28.

168. PABTKBR8HIP— Accounting — Interest. Upon

settlement of a partnership t^ a suit for an account-
ing. Interest should be allowed on the amount found
due to one partner from the institution of the suit,
there being many Items In dispute and no agreement as
to Interest.— C^wro/i «. lAtOe, 8. 0. Wis., Dec. 4, 1888; 40
N. W. Bep. 682.

16^. Pabtnbbship— Injunction. A change in the

location of the works of a partnership for the manu-
facture and sale of steel, as fixed by the articles of as-
sociation, is a departure from the partnership enter-
prise, and may be enjoined by a minority of the
members.— ^j>!P«U of Oemdngs, 8. 0. Penn., Oct. 29. 1888;
16 AtL Bep. 19.

166. PABTNBB8BIP— Suit Agalust Partner. A made

a contract with B for cutting hay. belonging to the firm
of A and B, agreeing to pay for it himself and charge
the firm : Held, that A might be sued alone by B for his
services.- CoMTfof v, Bobtnson, 8. 0. Oolo., Nov. 16, 1888; 19
Pac. Bep. 664.

166. PiiTMBNT— Voluntary— Beco very . Money paid

under mistake of law cannot be recovered back, where
the transaction Is unaffected by any fraud, trust, confi-
dence or the like, and both parties knew all the facts.—
Srhent v. Nicolin, 8. 0. Minn., Nov. 28, 1888; 40 N. W. Bep.

167. Plbjldino— Contradictory Defenses. Under

Georgia law, the general issue ana a plea of justifica-
tion may both be filed in an action for malicious prose-
cutlon.— iU^don v. Jordan, 8. Oi Ga., Oct. 22, 1888; 7 8. B.
Bep. 857.

168. Plbadihg— Contributory Negligence— Beply.

In an action against a railroad for injuring a horse in
unloading him, a reply alleging that plaintlfTs agents,
by their negligence and by reason of the wlldness of
the horse, suffered him to rear and fall, and also deny-
ing all Injury, but not alleging that but for this negli-
gence the horse would not have fallen, does not set up
contributory negligence, and no reply is necessary.—
Owen V, LouievUle, etc, B, Co., Ky. Ot. App., Nov. 16, 1888;
9 8. W. Bep. 698.

169. Plbading— Corporations— Stock. Held, that

the complaint stated a cause of action for failure to pay
a subscription to corporate stock, —iOmneapoHs, etc, Co,
V, Crecier, 8. C. Minn., Nov. 20, 1888; 40 N. W. Bep. 607.

160. PLBADINO— Exemption— Homestead. A peti-
tion to recover land sold on execution, as belug a
homestead, need not aver that the execution debt did
not exist before the purchase of the land.— iSiiapp v,
Snapp, Ey. Ct. App., Nov. 27, 1888; 9 8. W. Bep. 706.

161. Plbadinq — Insurance — Consideration. A

complaint alleging that defendant, for a valuable con-
sideration, entered into a contract of Insurance, is suffi-
cient on demurrer, without any allegation that any
premium was ever paid or agreed to be paid.— DonJi; of
Biver Falls v, German A. I, Co., 8. C. Wis., Nov. 8, 1888; 40
N. W. Bep. 606.

162. Plbadino— Uncertainty— Damages. If |i com-
plaint, alleging injury from a defective sidewalk, does
not sufficiently show the nature or amount of the dam-
ages, the remedy Is by motion for a bill of particulars.
■^Bamtw V. CUy ofHartf&rd, 8. C. Wis., Dec 4. 1888; 40 N.
W. Bep. 681.

168. PLBApDio ^ Vendor's lien — Assignee. The

complaint alleged that A gave B his notes tor the un.

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paid parohase moned for some land, that B died, and
hit administrator, for yalne, assigned the notes to
plaintiff, who prayed for an enforcement of the lien and
a sale of the land, bat did not ask for a personal Jadg-
ment: J^eM, that a good cause of action was stated.—
Bowie* V, SmUh, Ey. Ot. App., Not. 20, 1888; 9 S. W. Rep.

184. Plbadimg— Verification— Agent. The agent of

a piaintifl, having authority from his principal, may
verify under oath the complaint filed in an action of
forcibly detainer.— ifercer v. Einger^ 9. 0. Kan., Nov. 10,
1888; 19 Pac. Bep. 670.

186. Phaotiob— New Trial— Conditions. The court

directed a new trial, unless piaintifl should elect to take
Judgment against three of the defendants for a specified
sum and against another for a specified part of that
sum: .ffeM, that plaintiff could not, under the order,
take judfifment against the three and have a new trial
as to the other.— J^Vrtl N. Bank v. lAncoln^ 8. 0. Minn.,
Nov. 30, 1888; 40 N. W. Bep. 673.

166, Pbaotigb — New Trial — Newly- discovered Evi-
dence. Newly-discovered evidence of the same

kind as that used at the trial is not cause for a new
trial.— /{HnAm v, Faircloth, 8. O. 6a., Nov. 21, 1888; 7 8. £.
Bep. 923.

^167. PRAoncB— Trial— Directing Verdict. Where

the plaintiff 8 evidence, conceding it the greatest pro-
bative force allowable by the rules of evidence, is in-
sufficient to justify a verdict in his favor, the court may
instruct the Jury to find for defendant ^Knapp v. SUmx
FaOi N, Bank, 8. O. Dak., Oct. 18, 1888 ; 40 N. W. Bep. 687.

168. Practigb— Trial— Improper Evidence. Where

improper evidence is admitted, which is excepted to, a
new trial will be granted, notwithstanding subsequent
instructions to disregard it, unless from the whole case
it is reasonably clear that the party objecting was not
prejudiced.— Jitt«r^efM v. Thorn, 8. 0. Minn., Nov. 86, 1888;
40N. W.Bep. 669.

169. PBAonoB — Trial — Instruction. Where the

party failed to ask a qualification of the instruction
given, which would doubtless have been granted, and
such qualification would not have changed the result,
the Judgment will be affirmed.- Drucl; v. Nieolai, 8. O.
Oreg., NOV. 6, 1888; 19 Pac. Bep. 660.

170. PBAcnoB— Trial— Opening and Closing. Under

Georgia law, a defendant in a libel suit, who pleads
both Justification and the general issue, is entitled to
open and clOBe.—Johfuon v, Bradttrtet Co., 8. 0. Ga., Oct.
22,1888; 7 8. £. Bep. 867.

171. Pbimcipal akd Aqbht— Undisclosed Principal.

A, who has intrusted cotton to a cotton buyer, and di-
rected him to ship it in his own name to commission
merchants, cannot recover the proceeds from the lat-
ter, when they have accounted with the latter before
notice of the agency.— iZoMer v. Darden, 8. 0. Ga., Nov.
6,1888; 7 8. B. Bep. 919.

172. Public Lauds- Entry— Cancellation. A entered

two tracts of public land, paying the receiver of the
land office therefor. 8ubsequently the commissioner
of the general land office, finding one tract not subject
to entry, cancelled both entries, without notifying A
or offering to return his money: Held, that A was enti-
tled to have conveyed to him the legal title held by one
who had received a patent for the tract subject to en-
try after the order of cancellation.— Comelitit v, Ke$ttl,
U. 8. 8. C, Nov. 19, 1888; 9 8. O. Bep. 122.

178. PUBLio Ulbim —Title from 8tate— Islands.

Green Island, in Tlonesta creek. Forest county. Pa., is
within what is known as the "new purchase," made In
1784-85, by the '^commissioners appointed for making a
further purchase of all the residue of the unpurchased
lands within the limits of the State,'* and by the act of
1784 subject to be appropriated and sold, and Included
in a forvey of the main land.— AiKii^t v. LtwU, B. O.
Penn., Got. 29, 1888; 16 AU. Bep. 24.

174. BAiiJtOAi>s— Oar Tmstt— Leases. — Under the
oontraot for lease of ears to a railroad, whloh, on pa;y-
ment of the rent for ten years, were to beloiif |o tih»

railroad, it was held that the car trust certificates were
in legal effect mortgage bonds, and as such inferior In
point of Hen upon such roiliag stock to a prior mort-
gage with an after acquired property clause.— OetKrot
T. Co, V. OMo a B. Co,, U. 8. C. C. (Ohio), Aug. 29, 1888;
36 Fed. Bep. 620.

175. Bailroabs- Street — Damages. A railroad

company may, under a statute and a city ordinance,
construct and operate its railroad in a public street,
making such alterations in the surface of the street as
are necessary therefor, which do not necessarily im-
pair the usefulness of the street, without being liable to
abutting lot owners or others for damages.— OMoioa, etc
B, Co, V, Lanon, 8. C. Kan., Nov. 10, 1888; 10 Pac. Bep. 661.

176. Bboobb— Contract— Deed. Under the law of

1878, the record of an executory contract for the sale of
lands is constructive notice to a purchaser thereof, but
the prior record of such contract does not entitle the
holder thereof to a preference over the grantee in a
deed given before the execution of such contract.—
Thonen v. PerMttt , 8. C. Minn., Nov. 20, 1888; 40 N. W.
Bep. 667.

177. Bbwabd— Criminal— Constable. Under Texas

law, a constable may recover a reward for the arrest
and conviction of a criminal in his own precinct, such
offer having induced him to make the search.- itasiMi^
V, MorrU, 8. C. Tex., Oct. 26, 1888; 9 8. W. Bep. 789.

178. 8ALB— Auction— Vendee. The purchaser of a

house and lot at public auction, who has refused to
comply with his bid, may be sued for damages by the
vendor, where the property, after due notice, has been
resold at auction for a less sum.— ^im^ v. Ort&n, 8. O.
Ga., Nov. 6, 1888; 7 8. E. Bep. 921.

179. 8ALVA0B— Towage— Award. A steamship worth

with freight and cargo $868,600 lost a week's time and In-
curred 12,000 in towing in a disabled steamer worth |260,-
000. Salvage of |16,000 and $2,000 for expenditures were
aUowed.— T%« Ca«(/bnila, U. 8. D. C. (N. Y.), Oct. 3, 1888;
86 Fed. Bep. 663.

180. SCHOOLS— District— Writ of Error. A writ of

error does not He to a refusal of the court of quarter
sessions to open a decree establishing an independent
school-district under act Pa. May 8, 1865, notwithstand-
ing the act of May 20, 1866. — School- ditirict v, Cumming;
8. 0. Penn., Oct. 29, 1888; 16 AU. Bep. 82.

181. Sbamam— Wages. Under the evidence it was

held that libelant was employed as mate at $60 per
month.— 5ac9ti«toM<l v. The Meteor, U. 8. D. C. (N. T.}, Oct.
4,1888;86Fed. Bep.566.

182. Spboifio Pbbfobmanob— Contract— Husband and
Wife. On a bill for specific performance of a con-
tract for the sale of land, prasrlng for a good and suf-
ficient deed, where defendant's wife refuses to Join, and
plaintiff, on the argument before the master, agrees to
accept a deed from the husband alone, a decree may be
entered granting so much of the prayer of the bill.—
Harrigan v, McAleee, 8. C. Penn., Oct. 29, 1888; 16 Atl. Bep.

188. Spboifio Pbbfobmanob — Laches — Waiver.
Delay in the payment of the purchase money is no de-
fense to a bill for speoefic performance, where it does
not appear from the stipulation between the parties or
from the nature of the property, that time was to be of
the essence of the contract.— Brown v. Guarantee T, ^ S.
D, Co,, V, 8. 8. C, Nov. 19, 1888; 9 8. 0. Bep. 127.

184. SpboifioPbbfobmamob— Married Women— Agent.

Specific performance of a contract for the sale

of a married woman's property made by her agent will
not be decreed, when he has exceeded the authority
given him In writing, and the authority given by the
husband is InsuilDolent under the State laws.— ^sMAefwy
V, Woohoorth, U. S. 8. C, Nov. 26, 1888; 9 8. C. Bep. 109.

186. SUBBOOATIOB- Surety — Creditor. Where a

security Is given with the intention that It shall be ap-
plied to the payment of the debt for the relief of the
surety, or to enable the oredltor to make his debt,
equity will sttbstltote him to the right of ttie aurety. —
Talbott9. Laneaeter, Ky. OI^App., Oct. 3t,1888;98. W.
Sep. 694.

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No. 3

186. TAXATION— Dedactlons— Ck>rporation8. Under

the former revenae law of Eentacky, corporations as
well as natural persons, are entitled to deduct their In-
debtedness from the valne of property not required to
l>e listed.— Oosi. v. 8i, Bernard C, Co,, Ky. Ot. App., Nov.
26, 1888 ; 9 8. W. Bep. 709.

187. Taxation— Exemption— Cemeteries. Where a

cemetery has been bought as an inyestment for a
church, and whatever revenues are derived from it are
for the use of the church, and may be appropriated to
any purpose which to the church may seem fitting, it is
not embraced within the provision of act Pa. May 14,
1874, Which exempts from taxation "all burial grounds
not used or held for private or corporate profit.— JSrowmt*
J7e<rt V. Ciiy o/Pittaburg, 8. O. Penn., Nov. 5, 1888; 16 AtL
Rep. 48.

188. Taxation— Tax- title— Burden of Proof. A 8tate

assignment certificate is only evidence of title when
accompanied by proof of service of the notice of the ex-
piration of the time of redemption, as required by law,
and the burden of proof is on the party claiming title
thereunder.— Muller v. Jackton, 8. C. Minn., Nov. 22, 1888;
40 N. W. Rep. 665.

189. TAXATION— Void Sale— Possession. The holder

of the State's lien on real estate for taxes, acquired by
purchase of the real estate at a void tax-sale, cannot,
independent of the occupying claimant's law, defend
his possession of the real estate upon the lien, even
though he enter with the acquiescence of the owner. —
Taylor V, SHngerkmd, S. O. Minn., Nov. 80,^888; 40 N. W.
Bep. 675.

190. Tbnangt IN Common— Adverse Possession— Jury.

Two brothers purchased two adjoining tracts of

land together, but occupied them separately, each mak-
ing improvements on the track on which he resided.
One of them purchased the interest of the other in the
tract occupied by himself, at a sheriffs sale, and made a
lease of the mining privileges, stipulating for a royalty
on the coal, and collecting it : Heidy that whether the
brother purchasing at the sheriff's sale paid a portion
of the royalties to the other and his heirs, within the
period of limitations, and, if he did so, whether it was
as a charity or in recognition of a right in them as own-
ers, was properly submitted to the Jury. — McCloakey v»
MeClo$key, 8. 0. Penn., Oct. 29, 1888; 16 Atl. Rep. 30.

191. THREATS- Evidence. On a trial for maliciously

threatening to accuse another' of burning a building,
with intent to extort money, under Pub. 8t. Mass., ch.
202, § 29, the evidence was that defendants said that "un-
less you give us .$100, we will make a Jail- bird of you :"
ffeldf that the crime charged involving no wrong to de-
fendants, evidence of the truth of the charge was inad-
missible on the question of malice or of Intent, or to

mpeaoh the prosecuting witness. — CommonweaUh v,
Buckley, 8. J. 0. Mass., Nov. 28, 1888; 18 N. E. Bep. 677.

192. TOWNSHIPS— Negotiability. A township order

is not negotiable, and the mere blank assignment
thereof does not vest in the holder the right to maintain
an action In his own name against the township for the
amount of the order. — Toumship of Snyder v, Bovaird, 8.
C. Penn., Oct. 22, 1888; 15 Atl. Bep. 910.

198. Trespass to Trt Title — Vacating Judgment —

Pleading. Where a complaint states a good cause

of action in trespass to try title, but also asks to vacate
the Judgment, under which defendant claims, and states
facts showing the Judgment to be void, the complaint
is good on original demurrer. — Bender v. Damon; 8. C.
Tex., Nov. 28, 1888; 9 8. W. Bep. 747.

194. Trover- When Lies. An action for conver-
sion will not He, when the taking and conversion of the
property is with the knowledge and consent of the
plaintiff.- 7VHM{«y v. Bd, of Education, 8. C. Minn., Nov.
20. 1888; 40 N. W. Bep. 609.

196. Trust- Constructive— Executor De Son Tort.

Where A died, leaving a widow and six children, and
without administering on the estate one of the sons un-

ertookto complete the payments due by A on land
purchased by him : Held, that he held the land in trust

for the widow and the heirs.— RUk v, RUk, Ky. Ot. App.,
Nov. 17, 1888; 9 8. W. Bep. 712.

196. TURNPIKES— Election of Officers— Notice. The

act Ey. April 12, providing for the election of turn-
pike road officers, did not fix a place for holding the
election, and no presumption arises of notice to the
stockholders. — CaseeU v. Lexington, etc. Jt, Co., Ky. Ct.
App., Nov. 26, 1888; 9 8. W. Bep. 701.

197. VENDOR— Boundaries— False Bepresentations.

When a vendor points out to the vendee cenaln fences
as boundaries of the land sold, he is liable therefor to
the vendee If sueh fences are not the boundaries,
whether he made the representations in good faith or
not. — DavU v. JfTuzum, 8. C. Wis., Nov. 8, 1888; 40 N. W.
Bep. 497.

198. Wats— Obstruction— Bemoval. Under Georgia

law a person, on whose application a private way was
established, cannot sue to require the removal of ob-
structions placed therein without proof that the way Is
the same originally appropriated, that it does not ex-
ceed the prescribed width, and that he has himself kept
it open and in repair. — Collier v. Farr, 8. 0. Ga., Oct. 28,
1888 ; 7 8. E. Bep. 860.

199. Wills— Ambiguity-Devisees. A devised his

estate to his wife during her life or widowhood, and be-
queathed |l, 000 more to one son than the others, and
directed that, if any died without issue, that their shares
should be divided among the others: JJeZd, that each
child took an equal part of his estate, subject to the
mother's right with the exception in favor of the one
son.— Ferguson v. Thomasson, Ky. Ot. App., Nov. 17, 1888;
9 8. W. Bep. 714.

200. Will— Construction— Legacy. Testator gave

to his three married sistors "each the sum of $3,000 to
be paid them however without interest and in such in-
stallments and at such times as my executors may
deem "proper in their discretion so as not to impair my
Investments or cause loss or injury to my estate," and
afterwards gave a like sum to an unmarried sister pay-
able out of the income of the estate: Held, that the
legacies to the married sisters were payable out of the
corpiMOfthe estate. — Appeal of Pattereon, 8. 0. Penn.,
Nov. 6, 1888; 16 AU. Rep. 88.

201. Will— Construction —Powers. Where a tes-
tator devised property to his wife for life with power to
dispose of the same by will in such manner as she might
see fit, and the wife directed by her will that all her
debts be paid: ^eM, that such direction to pay debts
did not change the land therewith as the wife had no
power to incumber it. — Balls v. Dtunpman, Md. Ct. App.,
Nov. 22, 1888 ; 16 Atl. Bep. 17.

202. WiLLS—Bealty— Investment. A directed land

in Wisconsin to be sold and an investment of the pro-
ceeds in land in Missouri for a certain time and for
certain purposes: JTeld, that such equitable conversion
might be effected, unless it opposed Missouri law,
though it was repugnant to Wisconsin law. — Ford v.
Ford,S. C. Wis., Nov. 8, 1888; 40 N. W. Bep. 502.

208. Witness— Attorney— Waiver of Privilege. De-
fendant, alleging that she was deceived in relation to
her rights by her counsel, and having given testimony
In relation thereto, cannot object to testimony by such
counsel upon the same matters. — Hunt v. Blackhum, U.
8. 8. C, Nov. 26, 1888 ; 9 8. C. Bep. 126.

204. Witness— Competency— Felony. One against

whom a Judgment of conviction for a felony has been
entered, but against whom sentence has not been pro-
nounced, is not disqualified as a witness In a criminal
case, under Texas law. — Arcia v. State, Tex. Ct. App.,
Oct. 26, 1888; 9 8. W. Bep. 686.

206. Witness— Transactions with Decedent. When

a party to the cause on trial Is incompetent to prove
the facts, on which his title rests, he is incompetent to
prove the more general fact of his ownership in con-
nection with such other faots.-Ao&Mm v. tlains,9. 0. Ga.,
Nov. 21, 1888 ; 7 8. E. Bep. 926.

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Vol. 28.



^je (^tntxnX ^tu ^onvtmt

ST. LOUIS, JANUARY 25, 1889.


The recent case of Anderson v. Bennett,
decided by the Supreme Court of Oregon,
and of which we gave a brief synopsis last
week, is a fair illustration, not only of the
tendency of courts to legislate for them-
selves, but also of the advance, which has
been made, in the judicial determination of
questions, arising out of the liability of the
master, for injuries to his servant. The
later current of judicial decisions, as well as
legislative action, indicates a marked depart-
ure from the old rule of the master's non-
liability for injuries, to a servant, caused by
another servant in the same common employ-
ment, to the extent of holding the master
liable, for the improper or negligent perform-
ance of a duty, which the employer owes the
servant. The first general act, modifying
and defining the doctrine of non-liability,
was the English Employers' Liability Act of
1880. It provides that, in five classes of
oases, the workman injured shall have the
same remedy, against the employer, as if the
workman had not been in the service of the
employer. These cases are (1) by reason
of any defect in the condition of the works,
machinery or plant; (2) by reason of the
negligence of a person in the service of the
employer who has superintendence whilst in
the exercise of such superintendence; (3)
by reason of the negligence of any person to
whose orders the workman was bound to
conform and did conform ; (4) by reason of
the act or omission of any person in the serv-
ice of the employer, done in obedience to his
rules or by-laws or particular instructions ;
(5) by reason of the negligence of any per-
son in the service of the employer who Las
eharge of any signal points, locomotive en-
gine or train upon a railway.

A recent number of the Harvard Law
Review contains an interesting article, on
* 'Statutory Changes in Employers' Liability. ' '
It appears therefrom that in Georgia, Iowa,
Kansas, Wisconsin and Wyoming, the legis-

Voi.. 28— No. 4.

latures have guarded the employees of rail*
road companies from the common law rule of
non-liability. The Wisconsin statute has,
however, been repealed, and the common
law rule prevails there. In England, Ala-
bama and Massachusetts, the statutory
changes are more extensive, and are confined *
to no special class of workmen. The Ala-
bama act is a substantial copy of the English
act, but the provisions of the Massachusetts
act are somewhat more restricted. These
statutes have been passed upon, and
construed by the English and American
courts. But in the absence of statutes, as in.
the Oregon case, to which we first called at-
tention, there is a disposition on the part of
courts, both federal and State, to restrict the
doctrine of non-liability, and practically to
follow the English statutory rule.

Minors, without parent or guardian, m
States having a liquor selling law similar to
that in force in Georgia, will do well to take
note of a recent decision, of the supreme court
of that State, wherein it is held, that the stat-
ute prohibiting the sale of liquor to a minor,
without the written consent of his parent, or
guardian, makes no exception, as to minors
whose parents are dead, and who have no-
guardians, and, that it is no defense to such
prosecution to prove, that the parents of the
minor are dead, and that he had no guardian.
It was claimed that this minor was his own
guardian, and the court suggested that he
should have given himself permission in
writing. This seems to be a reasonable so-

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