Foreclosure.

10. Plaintiffs held two judgments against one
W. Defendant had a mortgage on land of W.,
on which said judgments were liens, and ob-
tained a judgment and foreclosure of the mort-
gage, and sold the land on a decree in the fore-
closure suit, defendant becoming the purchaser.
In a suit by plaintiffs to redeem, it was held
that, as against one of plaintiffs' judgments, only
part of defendant's judgment was a prior lien,
and they were permitted to redeem from the sale
for that amount. Held that, as against plaintiffs,
defendant might thereafter have foreclosure for
the unsatisfied part of her judgment, subject to
plaintiffs' first judgment, and the amount they
had paid to redeem from defendant.-Ewing v.
Bratton, (Ind. Sup.) 81 N. E. 562.

Pleading.

12. In a suit on a note and to foreclose a mort-
gage securing the note, though the complaint
fails to allege who the mortgagee is, or that the
mortgage is due and unpaid, or that it was exe-
cuted to secure the note, and does not contain a
description of the mortgaged premises, it is not
demurrable, since plaintiff is entitled to a per-
sonal judgment on the note. -Taylor v. Hearn,
(Ind. Sup.) 31 N. E. 201.

13. In an action to foreclose building associa-
tion mortgages given to secure several notes, by
the express terms of which the constitution and
by-laws were made a part of each note, it was
sufficient, where copies of each note and of the by-
laws were filed with the complaint, to refer there-
to in such complaint simply as the note; each
note, together with the constitution and by-laws,
constituting one instrument. - Hatfield v. Hun-
tington City Bldg., Loan & Sav. Ass'n, (Ind.
Sup.) 31 N. E. 532.

Deficiency judgment.

14. Under Code Civil Proc. § 1627, which
provides that a personal judgment against the
inortgagor may be ordered for the balance of
the mortgage debt that may remain unsatisfied
after a sale of the mortgaged premises, where,
pending a foreclosure suit, the land was sold
under a prior mortgage, the court may render
judgment against the mortgagor for the defi-
ciency due on the junior mortgage, after apply-
ing thereon the amount received from the sale
in excess of the prior mortgage. 16 N. Y. S.
369, reversed.-Frank v. Davis, (N. Y. App.) 31
N. E. 1100.

Redemption.

15. Where the mortgagee of a husband redeem
he land from a foreclosure sale under a prior
mortgage executed by the husband and wife, and
the holder of the certificate of the foreclosure sale
assents to the redemption, and accepts the money,
the wife, in an action to enforce such mortgage,
is not estopped to assert that the mortgagee is
the owner of the land, and that he redeemed it as
such.-Scobey v. Kiningham, (Ind. Sup.) 31 N.
E, 355.

16. Under Rev. St. § 774, providing that any
person having a lien on land, otherwise than by
judgment, may redeem it from any sale on exe-
cution, and that he shall have a lien thereon
which he may enforce in a suit to foreclose his
lien, a mortgagee from a husband, who redeems
the land from a sale on foreclosure of a prior
mortgage executed by the husband and his wife,
has a lien which he may enforce; and in a suit
against the wife she cannot question the validity
of the redemption, the holder of the sheriff's cer-
tificate having assented thereto, and accepted the
money paid him.-Scobey v. Kiningham, (Ind.
Sup.) 31 N. E. 355.

MUNICIPAL CORPORATIONS.
See, also, "Bridges;" "Counties;" "Drainage;"
"Highways;" "Poor and Poor Laws;"
"Schools and School Districts;" "Towns."
Acquisition of property for public use, see "Stat-
utes," 1.

Corporate limits, see "Taxation," 2, 8.
Detaching territory from city, see "Constitu-
tional Law," 5.
Organization without vote of people, see "Stare
Power to levy tax, see "Taxation,” 1.
Decisis."
Violation of ordinance, see "Nuisance," 1.
Incorporation.

1. In quo warranto proceedings to determine
the validity of the incorporation of a village it
may be shown that the territory sought to be in-
corporated had not, at the time the petition for
incorporation was filed, the requisite popula-
tion. Kamp v. People, (Ill. Sup.) 30 N. E. 680,
followed.-Poor v. People, (ll. Sup.) 81 N. E.

676.

Boundaries.

2. The report of the harbor and land com-
missioners purporting to define the boundary
line of tide water between Hull and Boston is not
evidence as to the jurisdiction of the city of Bos-
ton over islands situated in said tide water, since
the duty of the commissioners was to make an
equitable division of the tide water for purposes
of municipal jurisdiction, and they had no power
to define the boundaries on land between munio-
ipalities.-Russ v. City of Boston, (Mass.) 81 N.
E. 708.

Ordinances.

3. Where the ordinances adopted by a city
council appear spread on the minutes of its pro-
ceedings, which are in a book kept for that pur
pose, and signed by the presiding officer, and at-
tested by the clerk, it is a compliance with Rev.
St. § 3099, requiring ordinances "to be recorded
in a book kept for that purpose,' and to be
signed by the presiding officer and attested by the
clerk.-City of Hammond v. New York, C. &
St. L. Ry. Co., (Ind. App.) 31 N. E. 817.

4. Under Rev. St. § 1694, providing that all
ordinances of a permanent nature shall be fully
and distinctly read on three different days, un-
less three fourths of the members elected dis-
pense with the rule, the rule was dispensed with
as to several of such ordinances upon one and the
same vote and call of the yeas and nays, and there-
after, on the same day, all the ordinances were
put upon their passage and voted upon without a
separation or division of the question, and were
finally declared passed upon one and the same
vote. Held, that a separate suspension of the
statutory rule as to each ordinance was requisite
to the legality of its final passage, and a separate
vote was requisite as to each ordinance on its
final passage in order that such passage might
be legal.-Campbell v. City of Cincinnati, (Onio
Sup.) 31 N. E. 606.

5. The requirement in Rev. St. § 1694, that
all ordinances of a permanent nature shall be
fully and distinctly read on three different days,
unless three fourths of the members elected dis-
pense with the rule, is mandatory.-Campbell ▼.
City of Cincinnati, (Ohio Sup.) 31 N. E. 606.

6. A city ordinance to condemn property for
opening and extending a street, or to improve,
by grading, curbing, and macadamizing, a street
so opened and extended, is an ordinance of a per-
manent nature, within the meaning of Rev. St. §

7. Buffalo city charter, (Laws 1870, c. 519,) authorizing the making of ordinances by the common council "to prescribe the limits within which wooden buildings shall not be erected," pertains to the future; and an ordinance made thereunder prohibiting without the council's permission the erection of "any building constructed in whole or in part of wood" within certain city limits, refers to buildings to be erected in the future, and not to buildings in existence and erected by such permission.-City of Buffalo v. Chadeayne, (N. Y. App.) 31 N. Ě. 443.

Rescission of resolution.

8. A resolution of the common council, re scinding a former resolution "only upon condition of the filing of a good and sufficient bond,

* *," without naming the amount of the bond or the method of its approval, is, until approval by it, conditional only, and inoperative. -City of Buffalo v. Chadeayne, (N. Y. App.) 31 N. E. 443.

· Auctioneer's license.

9. A city ordinance which provides that it shall be unlawful for any person, by himself, or by any agent, within the corporate limits of such city, to sell or offer for sale at auction any goods, wares, or merchandise which have been imported into such city for the purpose of being sold or offered for sale at auction, unless such person shall pay or cause to be paid a license fee of $25 for each day and part of day he may desire to sell and offer for sale such goods, wares, or merchandise at auction, is an unreasonable exercise of the power granted to municipalities, by Rev. St. § 1692, "to regulate auctioneering, and to regulate, license, or prohibit the sale at auction of goods, wares, and merchandise imported into the corporation for the purpose of being sold at auction," and is invalid. Sipe v. Murphy, (Ohio Sup.) 31 N. E. 884.

City council-Notice of special meeting. 10. The provisions of a city charter declaring that the mayor may call special meetings of the council "by causing notice to be left at the usual residence of each member" of the council, does not prevent personal notice to the members. KNOWLTON, J., dissenting.-Russell v. Wellington, (Mass.) 31 N. E. 630.

Removal of councilman from wardVacancy.

11. Const. art. 6, § 6, provides that "all county, township, and town officers shall reside within their respective counties, townships, and towns. Rev. St. 1881, § 3043, relative to incorporation of cities, provides that a councilman must, "at the time of his election, be a resident of the ward from which he is elected," and, if he thereafter removes from such ward, the council "shall have power to declare his office vacant, and order a special election to fill the vacancy. Held, that the mere act of removal of a councilman to another ward will not create a vacancy, and the right to declare such vacancy is a matter in the discretion of the council.-State v. Craig, (Ind. Sup.) 31 N. E. 352.

Officers and agents.

12. Where the two branches of a city council are unable to elect a certain officer in concurrence in a certain month, as prescribed in the charter, and there is no prohibition against electing him at any other time, and the office is one plainly intended to be annually filled by a new election, the election may be held at a later time. -Russell v. Wellington, (Mass.) 31 N. E. 630.

Election by council.

13. Where, at an election for tax collector by a joint convention of a city council, one ballot is

14. Where the mayor decides that one ballot is illegible, the result of which decision is that no candidate receives a majority, and the convention, without objecting to the mayor's decision, proceeds to a second ballot, at which all the members vote, and at which one of the candidates receives a majority, such candidate is legally elected, since the mayor's decision as to the illegible ballot, when thus acquiesced in by the convention, is conclusive. - Keough v. Board of Aldermen of Holyoke, (Mass.) 31 N. E. 387.

15. After such election has been had, and the convention has dissolved, a subsequent joint convention has no power to declare the last ballot illegal.-Keough v. Board of Aldermen of Holyoke, (Mass.) 31 N. E. 387.

Liability for torts of officer--Superintendent of water-works.

16. The fact that a person, who has been appointed superintendent of the water-works construction of a city under St. 1884, c. 309, § 24, is under the control of the water commissioners, and cannot purchase or furnish anything except by their direction, does not relieve the city from liability for his negligence in opening a trench, when the proper materials for bracing it so as to insure the safety of the workmen are not at hand, any more than for failure to use such materials if they were at hand.-Connolly v. City of Waltham, (Mass.) 31 N. E. 302.

Contracts.

17. St. 1885, c. 266, § 12, provides that either the city council of Boston, nor either branch thereof, "shall directly or indirectly take part in the employment of labor, the making of contracts, the purchase of materials or supplies, the construction, alteration, or repair of any pub lic works, buildings, or other property, or the care, custody, and management of the same." Held, that the language of the statutes is broad nough to forbid the city council to make contracts of any kind, including one for the purchase of a parcel of land, and it is not limited by the provision of section 6, giving the subordinate officers and boards of the city power to "make all necessary contracts for the employment of abor, the supply of materials, and the construeion, alteration, and repair of all public works and buildings."-Brackett v. City of Boston, (Mass.) 31 N. E. 801.

*

18. Defendant city, by ordinance, granted to plaintiff's assignors, for 25 years, the privilege of laying gas mains for supplying illuminating gas along certain of defendant's streets. The ordinance provided that defendant should maintain a certain number of lamp posts; that it should maintain along said mains "such additional lampposts and lamps as the city council may from time to time direct, and on the erection of said lamps said city shall take from the gas works *sufficient gas to keep said lamps lighted." For these the ordinance provided that the city should pay "at the rate of $3 per month for each and every lamp." The ordinance did not in express words fix any time during which the city was to take gas for lighting its street lamps. Afterwards, when defendant ordered a large extension of the mains, plaintiff submitted a certain proposition regarding the use and payment of the lamps to be supplied by the extended mains, which proposition the committee on gas of defendant's council reported to the council with the recommendation that it be accepted, "with the stipulation that it be in force for no longer time than the original contract." The council adopted this report. The arrangement by which gas was to be furnished to defendant was referred to as a "contract" in many other resolutions adopted by defendant's council in ordering extensions of the mains, etc. Held, that by the ordinance the city contracted to pay for 25 years

Gen. St. c. 48, 4, upon those benefited thereby, their proportional part of the expenditure which was necessary for the structure as a sewer.-Gray v. Board of Aldermen of Boston, 31 N. E. 734, 139 Mass. 328.

Public improvements-Assessments.

35. Under Rev. St. 1891, c. 24, art. 9, § 28, which requires commissioners appointed to make a special assessment to file an affidavit "stating that they have sent, or caused to be sent, by mail, to the owners whose premises have been assessed, and whose name and place of residence are known to them," a certain notice, such affidavit need not state the names of the persons to whom the notice was sent.-Linck v. City of Litchfield, (Ill. Sup.) 31 N. E. 123.

36. The omission of a special assessment roll to show, by words or signs, that the figures showing the amount of the assessment indicate dollars, is immaterial, on writ of error, where the judgment of the county court is for the same amount, stated to be in dollars, since it will be presumed that the county court decided, from some legitimate source of information, that the figures in the roll indicated dollars. - Linck v. City of Litchfield, (Ill. Sup.) 31 N. E. 123.

37. A county court has no jurisdiction at a probate term to confirm a special tax levied to pay for a local improvement. -City of Mt. Carmel v. Fridrich, (Ill. Sup.) 31 N. E. 21.

38. The fact that land on one side of a street is assessed for paving a little more in amount than that on the other side, because the side last mentioned is incumbered by a street car track, does not invalidate the assessment, as the assessors may thus exercise their judgment as to the apportionment of the benefits.-Voght v. City of Buffalo, (N. Y. App.) 31 N. E. 340.

39. The fact that notice of an assessment is not published during the time required in successive numbers of a paper designated as the official paper of the city, but is omitted on Sunday, does not invalidate the assessment, where it appears that the week-day edition is the official paper, and that the Sunday edition, though numbered consecutively with the week-day edition, is furnished and sold under different terms -Voght v. City of Buffalo, (N. Y. App.) 31 N. E. 340.

E. 146.

41. Where the grading of the street has been paid for in part by a special tax on the property in question, the measure of damages is the amount the property has been injured, less the benefits, if any, accruing to the property from grading the street, but from such benefits should be subtracted the sum paid as a special tax on the property. 38 Ill. App. 133, affirmed.-City of Bloomington v. Pollock, (Ill. Sup.) 31 N. E. 146. 42. Const. 1870, Schedule, § 1, providing that "all laws in force at the adoption of this constitution not inconsistent therewith, and all rights, actions, prosecutions, claims, and contracts of this state, individuals, or bodies corporate, shall continue to be valid as if this constitution had not been adopted, " does not authorize a city, which has before the adoption of the constitution passed an ordinance fixing the grade of a street, to raise the street to such grade after the adoption of the constitution, without making just compensation to the owners of abutting property.City of Bloomington v. Pollock, (Ill. Sup.) 31 N.

E. 146.

Petition to vacate assessment.

43. A petition was filed in 1872, alleging fraud and irregularity in an assessment for public improvements under Laws 1858, c. 338, which provided that notice of such proceeding should be given the corporation counsel, on which the

court should proceed forthwith to hear the proofs. Notice was given the corporation counsel, but the petitioner failed to appear, because he had ascertained that the assessment had not been confirmed. A few months later, however, it was confirmed, and the petitioner prepared another A decision in another case meanwhile having inpetition, but failed to notify the said counsel. volved a denial of the petitioner's right, nothing further was done until 1890, when a change occurred in the holdings of the court. The peti tioner then gave notice again of an application for setting aside the assessment. Held, that this was a new and independent proceeding, and did baum, 23 N. E. 172, 119 N. Y. 24, distinguished. not relate back to the original. In re RosenApp.) 31 N. E. 517. 18 N. Y. S. 493, affirmed.-In re Duffy, (N. Y.

NEGLIGENCE.

Defective highways, see "Highways," 15. 30.

streets, see "Municipal Corporations," 27Injuries to passengers, see "Carriers,” 9–13. Of county officers, see "Counties," 8. Of fellow servants, see "Master and Servant," 32-34.

Of master, see "Master and Servant," 9-26. Of railroad companies, see "Railroad Companies," 11-24.

Of street railway, see "Horse and Street Railroads."

Of vice principal, see "Master and Servant,"
27-31.
Several and joint liability, see "Torts."
What constitutes.

1. A railroad company is not liable for damages caused by a horse taking fright at smoke from a locomotive in the streets of a city, where the discharge of smoke was the natural result of coaling the locomotive, and was not caused by the negligence of those in charge of it.-Leavitt v. Terre Haute & I. R. Co., (Ind. App.) 31 N. E. 860.

2. Under a contract providing that the contractor should do the mason work, provide proper protection to the work, and be responsible for all damages, and that the owner should provide all labor and material not included in the contract, and do it seasonably, so as to make way for the contractor, and not impede him when he came to do his part of the work, an instruction, requested by the owner, that, by the terms of the contract, the protection of the bank, so far as the contractor's workmen were concerned, was incumbent on him, and not on the owner, was properly refused.-O'Driscoll v. Faxon, (Mass.) 31 Ñ. E. 685.

3. Where plaintiff sustains damage by the dropping of mortar and bricks during the erection of a wall next to the premises occupied by her,