1. Officers who contract for the erection of public buildings,
and fail to require security from the contractor for the pay-
ment of labor and material claims, as required by Act No.
94, Laws of 1883, are liable in damages, at the suit of labor-
ers and material-men injured thereby. 260 (1).
2. The liability of officers to pay for labor and materials fur-
nished for the erection of public buildings, by reason of their
failure to require security from the contractor for such pay-
ment as provided by Act No. 94, Laws of 1883, is more in
the nature of a suretyship than a tort, when the officers have
acted in good faith, and they are not bound to wait until suit
is brought against them before making such payment. 261
(2).
3. Where a contractor for the erection of a public building
was not required to give security for the payment of labor
and material claims,-both parties being ignorant of the law
requiring it, and on being thereafter requested to execute
the required bond refused to do so, and made default in the
performance of the contract, which was completed at the
expense of the other party, in a suit by the contractor for
the balance claimed to be due under the contract, the defend-
ant may deduct from said claim the amount paid for material
furnished, and labor performed, for the plaintiff, and also the
amount due from him for material and labor, and for the
payment of which demands have been made upon the defend-
ant's officers, who, by reason of their failure to require said
bond, are personally liable for such claims. Id. (3).
Where the owner places lands in the hands of a broker for
sale, at a fixed price, who agrees with a second broker, with-
out the knowledge of the owner, that if he will find a pur-
chaser at a specified increased price they will divide the
profits, and the second broker agrees with a third broker
that he may find a purchaser at a still further fixed increased
price, and that they shall divide equally whatever he may
secure above said last named price, such last contract is not
void on the ground of public policy because the land-owner
and first broker are ignorant of it. 318 (4).
1. Sales-books kept by the receiver of taxes, containing a state-
ment of the sale of delinquent tax lands, and by him turned
over to the city treasurer, who minutes therein redemptions
or sales of city bids, are public records within the meaning
of Act No. 205, Laws of 1889, providing for the inspection
of records and files in public offices. 363 (1).
2. A city can have no private books, not even of accounts, not
open to the inspection of its citizens. Its doings, and the
doings of its officers, and the records and files in their offices,
must be open to the public; nor can fees be charged for such
inspection to those having the right to examine and inspect
such files and records. Id. (2).
3. The Legislature intended to assert, by Act No. 205, Laws of
1889, the right of all citizens, in the pursuit of a lawful
business, to make such examinations of the public records in
public offices as the necessity of their business might require,
subject to such rules and restrictions as are reasonable and
proper under the circumstances.
364 (3).
Requests for findings by the jury which do not call for their
conclusions on any fact in issue, but only on the truthful-
ness or accuracy of certain named witnesses on certain facts
which were matters of evidence merely, however significant
they may have seemed, are very objectionable. 654 (1).
RAILROAD COMPANIES.
A deed of right of way contained the following defeasance
clause:
"If the said railway company, its successors or assigns,
should fail to complete said railway through said premises,
and to put the same in operation, within three years from the
date hereof, or if, after such railway is completed and put in
operation, it should cease to be used and operated as a rail-
road, then, in either event, this release shall cease to be
operative, and the right of way granted thereunder shall
terminate."
The railway company ceased to use the right of way except for
the storage of cars, and it is held that thereupon the deed
had no further force or effect. 615.
See DAMAGES (4); EVIDENCE (16); FELLOW-SERVANTS (2).
Rails placed in a line fence, but upon the land of the adjoin-
ing owner, with no intention of leaving them there perma-
nently, are personal property; and in a trespass suit by the
grantee of such owner for the removal of such rails, the title
to land is not in question, and a plea of the general issue is
sufficient. 480.
A broker who merely brings the parties together, and has no
hand in the negotiations between them, they making their
own bargain without his aid or interference, can legally
receive compensation from both of them, although each was
ignorant of his employment by the other. 318 (3).
REDELIVERY OF MORTGAGED PROPERTY-See CHATTEL MORT-
GAGE (2).
RECORDS-See PUBLIC RECORDS.
1. In this case an assignee under an assignment for the bene-
fit of creditors, after having taken possession of the assigned
stock of goods, and while engaged in inventorying and apprais-
ing the same, assumed to surrender the actual possession to
the holder of a chattel mortgage on the goods made the day
prior to the assignment, and by agreement between them the
inventory was to be completed, and, after a portion of the
goods had been replevied from him and the mortgagee by
creditors, the assignee filed said inventory and appraisal, which
included the goods so replevied, and gave the statutory bond
for double the appraised value of the assigned property; and
the assignee is held to have been properly made a party
defendant in the replevin suit, which was discontinued as to
the mortgagee, and prosecuted to judgment against the
assignee as sole defendant. 602.
2. Chapter 289, How. Stat. (How. Stat. §§ 8372-8374), provid-
ing for a special action of replevin in the case of impounded
animals, is confined to cases arising under its provisions
648 (2).
See CHATTEL MORTGAGE (2).
RESCINDING CONTRACT-See EXCHANGE OF LAND.
REGISTRATION-See CONSTITUTIONAL LAW (2); ELECTIONS (1).
RIGHT OF WAY-See RAILROAD COMPANIES,
SALARY-See SHERIFF'S FEES (1).
1. The burden of proof is upon the vendee to make it appear
that the sale was made in good faith and without any intent
to defraud the creditors of the vendor, where such sale is
not followed by an actual and continued change of posses-
sion, and a refusal to so instruct the jury is error.
221 (1).
2. In replevin by a vendee to recover a stock of goods seized
at the suit of the vendor's creditors, the plaintiff relied upon
his bill of sale as evidence of his title, the consideration for
which he claimed was two chattel mortgages held by him
on the property. The creditors claimed that one of the
mortgages was given without any valuable consideration,
and that the other was increased in amount, all with intent
to defraud them, and with the knowledge of the vendee;
and it is held a question for the jury, and, if found in favor
of the creditors, the fraud tainted the whole transaction, and
prevented a recovery by the plaintiff. 222 (2).
3. It is error to instruct the jury, in a suit by a vendee to
recover the value of goods from the attaching creditors
of his vendor, that the plaintiff had made out a prima facie
case by proving the sale to him of the goods, other facts
being shown by plaintiff's testimony which might also have
weight with the jury in determining the bona fides of the
purchase. 337 (4).
SAW-BILL-See LIEN FOR SAW-BILL.
SCHOOL EXAMINER-See ELECTIONS (7).
SERVANTS-See FELLOW-SERVANTS.
1. A suit commenced by declaration, under How. Stat. § 7291,
cannot be considered as duly commenced until a copy of the
declaration with notice of the rule to plead is personally
served upon the defendant. 650 (1).
2. The affidavit of a private person, showing personal service
of a declaration as commencement of suit, is open to contra-
diction by the defendant, who may show that no such ser-
vice was made. Id. (2).
SET-OFF-See CONTRACT (4).
The law approves of settlements and compromises of disputed
claims, and, when deliberately made, the parties are bound
by them, and the law will not sanction any interference with
them, without the consent of the parties, except upon the
ground of fraud or mistake. 342 (4).
SHERIFFS AND EX-SHERIFFS.
1. It is the duty of an ex-sheriff who has attached property in
his custody, after an execution has been issued in the suit,
to expose such property to the sheriff, when requested by
him, in order that it may be taken on execution and sold to
satisfy the same. 176 (1).
2. If an ex-sheriff has any valid charges as custodian, he should
make out his bill of items, and present it to the clerk or other
taxing officer for taxation, or, if they are not statutory fees,
he should apply to the court for such allowance upon motion,
and notice to the parties interested. He has no right arbi-
trarily to fix his own price, and retain the property until
paid. 177 (2).
3. The right of an ex-sheriff to execute process until the ser-
vice upon him of the clerk's certificate required by How. Stat.
§ 597, showing that his successor has qualified and given the
security required by law, exists only as to such process as he
has in his hands, and which he is required by How. Stat. §
569, to deliver to his successor upon service of such certifi-
cate. Id. (3).
1. The board of supervisors have no power to allow the sheriff
an annual salary for services rendered the county, in lieu of
all fees. 117 (1).
2. The following propositions are summarized from the opinion
of Mr. Justice CAMPBELL:
a-It has been pointed out more than once by the Court
that the sheriff must be confined to his statutory fees in all
cases where they are fixed by statute. Burk v. Webb, 32
Mich. 173; Clark v. Supervisors, 38 Id. 658; Peck v. Bank, 51
Id. 353. And demanding and receiving more is a misde-
meanor. How. Stat. § 9256.
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