108.- -Vice Principal.-In an action for injuries by the use of an unsafe fuse furnished by its shift boss, in so furnishing the fuse the shift boss acted as a vice principal for defendant.-Laitinen v. Shenango Furnace Co., Minn., 114 N. W. Rep. 264. by Coal 109. Mines and Minerals-Offenses Miners. Under the statute making it unlawfur for coal miners to do certain acts whereby the lives or health of persons or the security of a mine, etc., is endangered, an information held sufficient.-Koppala v. State, Wyo., 93 Pac. Rep. 667. 110. Mortgages-Deed Absolute in Form.Where it is admitted that the controversy is as to whether a deed absolute was a mortgage or a conditional sale with a right to repurchase. it will generally be held a mere security, and therefore a mortgage.-Smith v. Jensen, N. D., 114 N. W. Rep. 306. 111. Foreclosure Sale.-Where land sold at foreclosure consisting partly of town lots, used with the other land as one farm, can be sold in one body to better advantage, it is not error to refuse to set aside the sale because a demand to sell in parcels was refused.-Greenwell v. Moffett, Kan., 93 Pac. Rep. 609. 112.- -Fraud and Misrepresentation.-Land mortgaged by the owner's grantor to secure a note for the price of a business is only subject to the amount due by the grantor when she conveyed, after deducting the damages sustained through fraud practiced upon her when she purchased the business.-Whittle v. Jones. 8. C., 60 S. E. Rep. 522. 113. Municipal Corporations Special Assessments.-That benefits of special assessments appear to be made in proportion to the frontage of the property assessed cannot be urged against the report of the commissioner that the assessments were made according to the pecullar benefits.-Kirtland v. Parker, N. J., 68 Atl. Rep. 913. Granted on Refer on 115. New Trial-Award ence. Either party to an award granted reference may apply to the supreme court to set aside the award and grant a new trial without first applying to the judge of the court which ordered the reference.-Harper Mach. Co. v. Sinclair, N. J., 68 Atl. Rep. 890. 116. Death of Party.-Where a party to the main action was served with notice of intent to move for a new trial he became a party thereto, and did not cease to be such by reason of his death before the hearing.-Bell v. San Francisco Savings Union. Cal., 94 Pac. Rep. 225. 117.-Questions Considered.-The right of the justice who rendered judgment to hold the office of justice cannot be raised on a motion for a new trial of an action for wrongful execution of such judgment; want of jurisdiction of the justice not being raised by the complaint.-Eaid v. Connolly, Wash., 94 Pac. Rep. 188. 118. Omcers-Compensation.-By the common law, not modified by statute, a de jure of 120. Partnership-Action to Recover Interest in Assets. Where a partnership has merely to do with a single completed transaction, an action at law may be maintained by one partner against another to recover his share of the profits of the transaction where an accounting is not necessary to ascertain the amount.-Crittenden v. Cobb, U. S. C. C., M. D. Pa., 156 Fed. Rep. 535. 121. -Individual Note of Partner.-A note made by one partner alone for a firm debt does not release another partner, unless the creditor agrees to accept it as payment and release the other.-Burdett v. Greer, W. Va., 60 S. E. Rep. of the trial judge on an application for leave to amend will be determined from the showing made and the circumstances under which it was made or offered to be made.-Dunbar v. V., Griffiths, Idaho, 93 Pac. Rep. 654. 123. Description of Defendant.-Whether words following the name of defendant in a declaration are descriptive of his person or of the character in which he is sued is to be determined by the allegations of the declaration. -Hanson v. Blake, W. Va., 60 S. E. Rep. 589. 124. Principal and Agent-Ostensible Authority.-Ostensible authority to act as agent may be conferred if the principal affirmatively or intentionally or by lack of ordinary care causes or allows third persons to act on such apparent agency.-Northwest Thresher Co. V. Eddyville State Bank, Neb., 114 N. W. Rep. 291. 125. Principal and Surety-Liabilities on Bonds. A surety on an appeal bond held not primarily liable as against a surety on a bond conditioned to pay the judgment given in an attachment suit and substituted for the attached property which was released.-Day v. McPhee, Colo., 93 Pac. Rep. 670. an ac 126. Railroads-Action Against.-In tion against a railroad company for damages to plaintiff's crops held that defendant sustained its burden of proving that the fence inclosing plaintiff's land was down by showing that the fence was down at one place.-Kansas City, M. & O. Ry. Co. of Texas v. Mayfield, Tex., 107 S. W. Rep. 940. 127. Reformation of Instruments-Grounds.When it is attempted to annex to a writing a parol conditional stipulation, it must appear that it was omitted at the time of execution through fraud, accident or mistake.-Capps v. Edwards, Ga., 60 S. E. Rep. 455. 128. Reference-Report.-Where a cause had been referred to hear testimony and submit findings, and referee reports that no evidence was offered and he granted judgment on the pleadings, and the court approved such report and the findings, the same is error.-Idaho Placer Min. Co. v. Green, Idaho, 94 Pac. Rep. 161. 129. Sales-Cancellation.-Where one while Intoxicated sold personalty of the value of about $12,000 for $200, equity will aid him by setting aside the sale and restoring him to his rights. Swan v. Talbot, Cal., 94 Pac. Rep. 238. 130. Delivery.-When a date for delivery is mentioned in a contract of sale, the goods must be delivered on that day, and if not, the purchaser may usually refuse to accept a subsequent tender.Robinson Clay Product Co. v. American Locomotive Co., 107 N. Y. Supp. 69. 131. Specific Performance-Estoppel.-Where the vendor waived a condition precedent to the conveyance of land and agreed to a modification of such condition, he is estopped, in an action for specific performance of the contract, from exacting performance of the original condition.-Spencer v. McCament, Cal., 93 Pac. Rep. 682. 132. -Time as Essence of Contract.-Exten'sion of time within which payment must be made under a contract of sale of real estate held not a waiver of the provision making time of the essence of the contract.-Machold V. Farnan, Idaho, 94 Pac. Rep. 170. 133. Spendthrifts-Alimony.-The liability of a spendthrift for alimony pending a divorce suit against him is not upon the contract of either the spendthrift or his guardian; but, if it exists at all, is statutory, and may be established in any competent court by judgment against the ward.-Sturgis v. Sturgis, Or., 93 Pac. Rep. 696. 134. Stipulations-Conclusiveness.-A stipulation that a suit on a fire policy shall abide the result of another suit held conclusive, both as to the question of any liability and as to the amount.-Commercial Union Assur. Co., Limited, of London v. Chattahoochee Lumber Co., Ga., 60 S. E. Rep. 554. 135. Taxation-Assessment.-The action of a county board of taxation in ordering a township assessor to increase by 40 per cent. the valuation of all taxable property in his taxing district will not be presumed illegal.-Wayne Tp., Passaic County, v. Laflin & Rand Powder Co., N. J., 68 Atl. Rep. 909. 136.1 Trial-Defective Sidewalks.-Where a city relied on plaintiff's knowledge of the condition of a sidewalk as destroying a presumption that the walk was ordinarily safe, it was Its duty to request an instruction thereon.O'Flynn v. City of Butte, Mont., 93 Pac. Rep. 643. 137. Trusts-Certainty.-No trust can be raised where there is uncertainty, as where the objects intended to be benefited are imperfectly described, or the amount of the property to which the trust should attach is not sufficiently described.-Seabrook v. Grimes, Md., 68 Atl. Rep. 883. 141.-Unmarketable Title.-Where a proposed purchaser would recover deposit, and expenses because of the unmarketability of the title, arising from a defect not disclosed of record, he must prove the facts dehors the record relied upon as affecting the title.-Witte v. Koerner, 108 N. Y. Supp. 560. 142. Venue-Selection of Judge.-Action of a court upon affidavits of plaintiff in regard to the disqualification of a judge of a neighboring county held not a selection of the judge who was to try the case.-Parrish v. Riverside Trust Co., Cal., 93 Pac. Rep. 685. 143. Transitory Actions.-A citizen of Arizona injured there through negligence of a corporation foreign to Texas was entitled to maintain an action in Texas for the injuries.Southern Pac. Co. v. Godfrey, Tex., 107 S. W. Rep. 1135. 144. Waters and Water Courses-Artificial Courses.-That a water course was artificially dug did not necessarily prevent the existence of rights in it, like those pertaining to a natural water course.-Stimson v. Inhabitants of Brookline, Mass., 83 N. E. Rep. 893. 145.-Easements.-Where land was subject to an easement for the maintenance of a conduit, whether the burden was being increased depended on the size and character of the conduit, and not on the quantity of water passing through it.-Crane v. McMurtrie, N. J., 68 Atl. Rep. 892. 146. Rights of Lower Proprietor on Natural Drain.-A lower proprietor damaged by overflow water following its natural course. held entitled to no remedy against one who closes a canal which previously protected the proprietor by diverting the excess and overflow in a different direction.-Lake Drummond Canal & Water Co. v. Burnham, N. C., 60 S. E. Rep. 650. 147.- -Riparian Rights.-A riparian owner need not to maintain an action for obstructing a water course show actual present damages; but it is enough to show that an injurious effect is produced on his property by the maintenance of the obstruction.-Stimson v. Inhabitants of Brookline, Mass., 83 N. E. Rep. 893. 148. Wills-Legacies.-The law presumes that a legacy is to be paid only out of the personalty, and if that is insufficient, the legacy is lost pro tanto unless a contrary intent appears on the face of the will.-Getchell v. Rust, Del., 68 Atl. Rep. 404. 149. Settlement Between Legatees.-A legatee who accepted his share according to contract of settlement is not entitled to have the settlement set aside as to one item of the property on the ground that he was induced to enter into the agreement by false and fraudulent representations as to it without offering to rescind the entire agreement.-Swift v. Swift, Ga., 60 S. E. Rep. 182. a 138.- -Misappropriation of Trust Fund.-To charge a third person with misappropriation of a trust fund it must be shown that he knowingly partakes in the breach of trust.-Perry v. Oerman & Blaebaum, W. Va., 60 S. E. Rep. 604. 139. Usury-Equitable Relief. Before debtor can restrain collection of a debt tainted with usury he must tender the amount admitted to be due.-Rush v. Pearson, Miss., 45 So. Rep. 723. 140. Vendor and Purchaser-Performance of Contract. Where vendee accepted a deed without the wife's dower renounced he must be presumed to have chosen to rest on the warranty in the deed and cannot recover damages or have abatement until he has extinguished it or 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 505, arrest in civil action induced by fraud, 348. does the fact that an attorney signs a cli- an attorney who files objectionable papers ethical standards of the bar of to-day com- the place of oral argument in the work of AUTOMOBILES, automobiles not classable with dynamite, BAILMENTS, contracts of hire, 180. contracts of bailment and of insurance dis- BANKRUPTCY, new promise to pay debt already discharged. BOOKS RECEIVED, 40, 184, 205, 320, 357, 453. CARRIERS, burden of proof in action for loss of goods, can express companies be compelled to make liability of carrier for sudden jerk of car concerning uncertainty and due process of seizure of gambling devices, 8. rights in and to property whose only use is imposing ministerial duties upon judges, 70. statute prohibiting non-residents' cause of constitutionality of statutes authorizing liberty of contract now a well defined right what is a purely public charity within the is ours a "national" government, 223. due process of law and jury trial in state equal protection of the laws relating to ju- purpose and character of employers' liabil- misconduct in the presence of the court, courts, 402. CONTRACTS, opinions of malicious interference with contractual re- agreement to compensate expert witness, 34. 24. imposing ministerial duties upon judges, 70. to fiddle for a dance as ground for the post- no presumption in favor of court exercising EVIDENCE, EXECUTORS AND ADMINISTRATORS. con- right of foreign executor or administrator legal status of foreign administrators, 319. allowance of extra compensation for expert EXTRADITION, the present inadequacy of interstate rendi- FIRE ESCAPES, ordinances requiring fire escapes to build- FIRE INSURANCE, change in title of property insured, 299. specific performance of oral agreement and validity of oral sale of land established by GAMBLING, seizure of gambling devices, 8. test of permanency in sustaining arbitrary HUMOR OF THE LAW, 14, 40, 60, 80. 129, 148, 168, 184, 205, 224, 246, INHERITANCE TAX, proposed federal inheritance tax law, 433. labor union restraining order in case of right of federal court to restrain enforce- INSPECTION LAWS, the folly of state oil inspection, 403. federal regulation of insurance, 49. something of interest with regard to the INTOXICATING LIQUORS, criminal liability of an employer for the JUDGMENT, he identity of subject matters concluded by copyright suit between the publishers of Wilcox's Fallacies of the Law, 245. Pattison's Missouri Digest, Vol. 8, 452. Encyclopedia of Evidence, Vol. 11, 473. Probate Reports, Annotated, Vol. 11, 246. American State Reports, Vols. 114, 115, American State Reports, Vol. 116, 452. United States Compiled Statutes, 1907 Reviews of Text Books, Rose's Code of Federal Procedure, 79. Thayer's Legal Essays, 264. Bentwich's Private Property in War, 285. Kennedy's Trial Evidence, 357. Hughes Grounds and Rudiments of Law. Andrews' American Law, second edition, Shamel's Mining, Mineral and Geological Remington on Bankruptcy, 433. LEGAL ETHICS. MASTER AND SERVANT-Continued. where one of two participating mortgagees validity of special assessments for street what is sufficient to constitute one a mer- may any discretion be exercised in the is- the Chicago municipal code from the stand- the erection and maintenance of buildings, 443. ordinances as to the erection of wooden and regulation of height of buildings under the regulation of height and location of build- ordinances requiring fire escapes to build- approval of plan for buildings by building liability of municipality for collapse of are cities and towns liable for negligence suicide as a defense under by-laws, 176. examination for naturalization in the state NEGLIGENCE, ex- should the doctrine of the turn-table cases liability for injuries arising from the use the use of the phrase res ipsa loquitur, 386. |