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duly-authorized attorney and agent, appointed to | after verdict, where the first three counts state verify petitions and pleadings in behalf of plain- a good cause of action. 39 Ill. App. 649, affirmed. tiff for the institution of condemnation proceed--Lake Erie & W. R. Co. v. Wills, (Ill. Sup.) 81 ings and otherwise, and is the agent of plaintiff N. E. 122. for the purpose of acquiring the real estate described in the foregoing petition, was "an officer" of the corporation.-In re St. Lawrence & A. R. Co., (N. Y. App.) 81 N. E. 218; In re De Camp, Id.

Amendment.

12. A party cannot have the benefit of exceptions to an adverse ruling on a demurrer to a plea, and at the same time exercise the privilege of amending the plea.-Evans v. Queen Ins. Co., (Ind. App.) 31 N. E. 843.

13. The amendment of a complaint during trial and after the evidence has closed is in the discretion of the trial court, which has the right to allow it without proper showing, supported by affidavit.-Wabash W. Ry. Co. v. Morgan, (Ind. Sup.) 31 N. E. 661.

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14. A complaint may be amended after service of answer, so as to change the place of trial as stated in the original complaint and summons. N. Y. S. 615, affirmed, without opinion. -McCosker v. Smith, (N. Y. App.) 31 N. E. 622. Exhibits.

15. An exhibit in a pleading need not be marked by a letter or character, and referred to by such letter or character, it being sufficient to state in the pleading that the exhibit (naming it) "is herewith filed;" and one copy will serve as an exhibit for any number of paragraphs in the same pleading.-Glass v. Murphy, (Ind. App.) 31 N. E. 545.

Pleading and proof-Variance.

16. In an action for breach of a partnership contract, void under the statute of frauds, plaintiff cannot recover the value of his contribution to the partnership which defendant had received under the provisions of the contract, as such recovery would be founded on a different cause of action from that pleaded.-Reed v. McConnell, (N. Y. App.) 31 N. E. 22.

PLEDGE.

Right of pledgee to sell pledge.

A note given by plaintiff recited that certain bonds had been pledged to defendant as collateral, with authority to sell without notice, and provided that, in case of depreciation in their market value, a payment should be made on account, or additional security given; and, in case of failure to do so, the note should be payable forthwith, and defendant might immediately reimburse itself by sale of the bonds. After the maturity of the ncte plaintiff asked defendant's indulgence for a few days, which was granted. Afterwards defendant sold some of the bonds, and reported the sales to plaintiff, who found no fault with them. Five months after the note had matured plaintiff wrote defendant to apply the interest accruing on the bonds upon the note. Defendant declined to do so, and stated that it wished the loan paid, and soon afterwards, when the bonds were declining, sold the remainder, leaving a balance due on the note. Held, that defendant's right to sell the bonds at any time after the maturity of the note was not affected by anything that occurred between it and plaintiff. 14 N. Y. S. 502, affirmed.-Williams v. United States Trust Co., (N. Y. App.) 31 N. E. 29.

POOR AND POOR LAWS.

Employment of physician to attend pauper.

township trustee to keep a "poor book," in which 1. Rev. St. 1881, § 6075, which requires each shall be enrolled all those in his township who, in his judgment, will require assistance from the public, does not prevent the trustee from granting relief to one not so enrolled; and an allegation in a complaint to recover for medical services, that the trustee employed plaintiff to treat the patient as a poor person, sufficiently shows a determination by the trustee that the patient was a subject of charity.-Board Com'rs Warren County v. Oshorn, (Ind. App.) 31 N. E

541.

17. Plaintiffs sued on an alleged contract by which defendants promised to pay them $100,000 for their assistance in procuring the contract for building a bridge to be awarded to defend ants. By the written contract, as proved on the trial, defendants promised to pay plaintiffs a commission of 5 per cent. up to the amount of $100,000, to be deducted from cash payments to defendants on the bridge contract, for assisting defendants in the financial arrangements neces. sary to complete the bridge within the time specifiled by the contract. Held, that this was a ma terial variance, and plaintiffs' action failed on the proof. 16 N. Y. S. 79, affirmed.-Gallaudet See "Adverse Possession." v. Kellogg, (N. Y. App.) 31 N. E. 337.

18. In an action for services rendered between two specified dates, where the court finds that plaintiff was paid for such services, a judgment for what is due for services performed at auother time cannot be sustained.-Oolite Stone Co. of Indiana v. Crofton, (Ind. App.) 31 N. E. 375.

19. In declaring on a replevin bond payable to the coroner "and to his successors in office," the words "and to his successors in office" may be omitted without creating a variance, since they are mere surplusage.-Schott v. Youree, (III. Sup.) 31 N. E. 591.

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2. The authority from a township trustee for a physician to treat a poor person need not be in writing.-Board Com'rs Warren County v. Osborn, (Ind. App.) 31 N. E. 541.

Possession.

POWERS.

Testamentary powers.

1. A testator devised to his widow "the use of [his] real estate during her natural life, with the same right to sell the same for her support and maintenance that [he] would have if living." At a time when she did not need money for her support, the widow conveyed part of said land to her son in consideration of his agreement to support her for the rest of her life. The son mortgaged the land to an innocent mortgagee, and applied part of the proceeds to payment of the debts of the widow incurred in litigation, and the bal. ance to his own use. Held, in a suit brought after the widow's death to partition the land among the heirs of the testator, that, under a clause in the will making the land subject to the had been applied to paying her debts was a valid widow's debts, that part of the mortgage which charge on the entire tract, and that the remainder of the mortgage was only a charge on the interest of the son who gave the mortgage. -Griffin v. Griffin, (Ill. Sup.) 31 N. E. 131.

2. A provision in a will appointing the testa tor's widow sole executrix, and declaring that

"she is not to give any bonds or have the prop erty appraised, but has a good right to do in all things as I would have just right to do if living, " does not confer power to sell land.-Griffin v. Griffin, (Ill. Sup.) 31 N. E. 131.

3. A testator made his widow sole executrix, and declared, "All my honest debts are to be paid out of my real or personal estate that can be best spared, in the opinion of my executrix." Less than a year after the testator's death the widow sold some of his land by a deed which made no reference to the will. Held, that after the lapse of 25 years, and the death of both the widow and her grantee, it would be presumed that the sale was made for the purpose of paying the testator's debts, and that the deed would pass title, although no debts were proved up against the estate.--Griffin v. Griffin, (Ill. Sup.) 31 N. E. 131.

4. But said clause cannot sustain a deed made 24 years after the testator's death, since by that time his debts, if not paid, would be barred by the statute of limitations.-Griffin v. Griffin, (III. Sup.) 31 N. E. 131.

5. A testator devised to his widow "the use of [his] real estate during her natural life, with the same right to sell the same for her support and maintenance that [he] would have if living." Held, that a deed of part of said land by the widow, reciting that it was made in pursuance of said will, to obtain money for her support, passed good title, without proof that such sale was necessary for her support.-Griffin v. Griffin, (Ill. Sup.) 31 N. E. 131.

6. A testator devised to his widow "the use of [his] real estate during her natural life, with the same right to sell the same for her support and maintenance that [he] would have if living." At a time when she did not need money for her support, the widow conveyed part of said land to her son in consideration of his agreement to support her for the rest of her life. The deed contained no recital or reference to the will. Held, that the deed was not valid under said power.-Griffin v. Griffin, (Ill. Sup.) 31 N. E. 131.

PRACTICE IN CIVIL CASES. See, also, "Abatement and Revival;" "Appeal" "Costs;" "Courts:" "Deposition;" "Discovery;" "Evidence;" "Judgment;" "Jury;" "New Trial;" "Parties;" "Pleading:" "Trial;" "Witness;" "Writs."

On appeal, see "Appeal," 16-35.

Dismissal.

1. Where there is a material variance, and plaintiffs' case fails on the proof, the court should dismiss the complaint, instead of directing a verdict for defendants. 16 N. Y. S. 79, affirmed.-Gallaudet v. Kellogg, (N. Y. App.) 81 N. E. 337.

Nonsuit.

ant.

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When relation exists.

1. Defendant company gave to another the "sole right" to control the sale of its goods in a certain city, furnished him with a delivery wagon, and built him an ice house. On the ice house and wagon the defendant either had painted its corporate name, and that of the other as agent, or, after the same had been painted, permitted it to remain. Held, that there was a holding out of such person as agent of defendant, and one acting in good faith had a right to deal with him as such. Foss-Schneider Brewing Co. v. MeLaughlin, (Ind. App.) 31 N. E. 838.

2. Plaintiff, after proceedings were instituted by his partner to dissolve the firm, applied to K. to assist him in purchasing the business, and, relying on a supposed arrangement with K., agreed to a decree appointing a receiver and providing for a sale of the assets. Afterwards K withdrew from the arrangement, and plaintiff applied for help to defendant, who was a personal friend. Defendant said that he had no money, but introduced plaintiff to one T. After several interviews between T., plaintiff, and defendant, it was orally agreed that T. should purchase plaintiff's interest. When the contract was written it named defendant as purchaser, instead of T.; but plaintiff made no objection, and it was signed by them. Plaintiff then gave defendant a bill of sale of his interest in the firm. Held, that defendant occupied no fiduciary relation to plaintiff such as required him to disclose that T. was interested with him in the purchase, or negotiations had by him with K., and K.'s opinion of the value of the business; since the relation in the first instance grew out of the gratuitous assistance which defendant undertook to render in response to plaintiff's application.-Fletcher v. Bartlett, (Mass.) 31 N. E. 760. Powers of agents.

3. An architect who is superintending the construction of a building, and who has a contract for the plastering, which implies that he 2. Where the court is satisfied, at close of shall furnish the mortar, has no power by virtue plaintiff's case in an action tried without a jury, of his position merely, and without authority that he cannot recover, it may dismiss the comfrom his employer, to have the mortar carted to the premises, instead of having it made there, or plaint without hearing the evidence of defend5 N. Y. S. 941, affirmed. -Neuberger v. to so vary the contract of his employment in any Keim, (N. Y. App.) 31 N. E. 268. other respect as to make the employer pay a 3. A motion for a nonsuit, "because of a vari-higher price for the mortar than is contemplated therein.-McIntosh v. Hastings, (Mass.) 31 N. E. ance between the allegations of the complaint and the plaintiff's proofs," will not raise the question that plaintiff should have surrendered certain notes in order to establish the cause of action. 11 N. Y. S. 329, affirmed.-Kokomo Strawboard Co. v. Inman, (N. Y. App.) 31 N. E. 248.

Preferences.

Validity, see "Assignment for Benefit of Creditors," 1.

Premises.

See "Intoxicating Liquors," 19.

288.

Parol authority to indorse note.

4. Authority to an agent to indorse a note may be given by parol.-Brown v. Bookstaver, (III. Sup.) 31 N. E. 17.

Rights and liabilities as to third per

sons.

5. Where defendant, who was agent to pro cure contracts for certain land "in accordance with printed contracts furnished,' employed plaintiff to make the contracts, giving instructions for their execution different from the printed contracts, he is personally liable to

plaintiff for the services. 12 N. Y. S. 180, affirmed.-Taylor v. Nostrand, (N. Y. App.) 31 N. E. 246.

ings may be irregular and informal.-Inhabitants. of Hyde Park v. County Com'rs of Norfolk, (Mass.) 31 N. E. 693.

Promissory Notes.

6. In an action against a company for the price of goods sold to its alleged agent, evidence that plaintiff asked the alleged agent if he was the agent of the company, and that he replied See "Negotiable Instruments." that he was, is admissible to show the good faith of plaintiff in dealing with such alleged agent.Foss-Schneider Brewing Co. v. McLaughlin, (Ind. App.) 31 N. E. 838.

Notice to agent.

Proof of Loss.

See "Insurance," 21-26.

Publication.

Service by, see "Writs," 3, 4.

Public Improvements.

PUBLIC LANDS.

7. Where an agent lends money on a mortgage, which he has recorded, on land on which there is a prior unrecorded mortgage, the mere fact that he was also the agent of the prior mortgagee in taking his mortgage 11 months before is not notice to the subsequent mortgagee, unless he not only knew of the prior mortgage, but also See "Municipal Corporations," 31-43. believed it an existing lien; and where it appears that he was the agent of the prior mortgagee to invest, hold, and reinvest money, and that, though he knew that the prior mortgage was still in existence, he considered that money paid to him by the subsequent mortgagee was in his bands as trustee for the prior mortgagee for reinvestment, and that he held it as a payment of the prior mortgage, though such mortgage was not formally satisfied, notice of the prior mortgage cannot be imputed to the subsequent mortgagee. ANDREWS, GRAY, and O'BRIEN, JJ., dissenting. 17 N. Y. S. 363, reversed.-Constant v. University of Rochester, (N. Y. App.) 31 N. E. 26

PRINCIPAL AND SURETY. Discharge of surety, see "Trusts," 10. Scope of contract.

1. The condition of a bond to a bank was that whereas M., deceased, at the time of her death had deposited in the bank $578, and whereas the principal, as executor, was unable to find deceased's deposit book, he would indemnify the bank against claims of other persons to said deposit, and from all loss in consequence of any such claims. The money was paid to him. It afterwards appeared that deceased's account had been settled by her during her lifetime, and that nothing was due her estate; that the deposit which appeared to her credit was the deposit of another woman, whose name was the same as deceased's; that deceased's deposit book was in the bank's possession at the time the bond was executed, and that the money was paid by mistake. Held, in an action on the bond, that the sureties were not liable, the object of the bond being to secure the bank only in case the executor was not entitled to the money as such executor. Canton Inst. for Savings v. Murphy, (Mass.) 31 N. E. 285.

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Effect of unrecorded grant-Rights of subsequent purchaser.

One who purchases and receives a deed of land from the state, after it has been sold and conveyed to another, though the purchase was made in good faith, and without actual notice, takes no title to the land against the former purchaser, although the deed of the latter is not at the time on record in the county where the land is situate.-Webster v. Clear, (Ohio Sup.) 31 N. E. 744.

QUIETING TITLE.

What constitutes cloud on title.

1. A statement claiming an equitable interest in certain land, and signed only by the claimant, does not, though recorded in the registry of deeds, constitute a cloud on the title of the owner.-Leeds v. Wheeler, (Mass.) 31 N. E. 709. Pleading.

2. In a suit to quiet title, where the bill alleges that complainant is in actual possession of the land, a plea setting up Rev. St. 1874, c. 83, § 7, which provides that whenever a person having color of title, made in good faith, to vacant land, shall pay taxes thereon for seven years, he shall be deemed the legal owner, without alleging that defendant took possession of the land, is bad.-Gage v. Smith, (Ill. Sup.) 31 N. E. 430. Disclaimer by defendant of adverse

claim.

3. In a proceeding under Pub. St. c. 176, which permits a person in possession of land, claiming a freehold therein, to compel another to bring an action to try his alleged title thereto, the answer averred that respondent had conveyed the land to petitioner by a deed stipulating that a dwelling house should be erected on the premises within a specified time and at a specified cost; that such stipulation was material, and had been broken; and that respondent had not, as yet, made any claim on petitioner by reason of such breach. Held, that the stipulation did not constitute a condition, and that, therefore, the answer must be treated as a disclaimer of title adverse to petitioner, and the petition must be dismissed.-Stone v. Houghton, 31 N. E. 719, 139 Mass. 175.

QUO WARRANTO.

Against foreign insurance corporation. 1. A foreign insurance company, exercising in this state franchises and privileges without authority of law, may be ousted therefrom by proceedings in quo warranto. State v. Insurance Co., 24 N. E. 392, 47 Ohio St. 167, followed. State v. Fidelity & Casualty Ins. Co., (Ohio Sup.) 31 N. E. 658.

The county commissioners having acquired Jurisdiction of the subject-matter by a petition to lay out a highway, prohibition does not lie to 2. The issuing of a license to a foreign inrestrain proceedings thereon, though the proceed-surance company to do business in this state by

the superintendent of insurance is a ministerial, | Traffic contract. and not a judicial, act, and is therefore not a bar 4. A contract for the joint operation of a to a proceeding in quo warranto, to oust it from foreign and a domestic railroad will not be defranchises and privileges exercised without au-clared ultra vires in an action on the contract thority of law.-State v. Fidelity & Casualty Ins. Co., (Ohio Sup.) 31 N. E. 658.

RAILROAD COMPANIES.

See, also, "Carriers;" "Eminent Domain;"
"Horse and Street Railroads;" "Master and
Servant."

Accident at crossing, see "Negligence," 15, 16.
Frightening horses, see "Negligence," 1.
Obstruction of right of way, see "Trespass,"
1, 5.

Order to station flagman, see "Constitutional
Law," 3.
Several and joint liability, see "Torts."
Regulation by state--Failure to appoint
flagman.

by one company against the other, where the defense was not set up in the answer, or in a previous action between the same parties on the same contract, and where no statute or decision either in this state or in the foreign state has been cited in support of such defense, and where there is nothing to show that the legis lature or any public officer of either state has ever objected to the contract.-Nashua & L. R. Corp. v. Boston & L. R. Corp., (Mass.) 31 N. E. 1060.

5. Under a traffic contract between two railroads, which places both roads under the management of a joint agent, and which provides for the payment of operating expenses out of the joint fund, and for the division of the net receipts in a specified proportion, one of the roads which, with the consent of the other, furnished a house for the use of an em1. Though Laws 1884, c. 439, § 3, au- ploye of the joint agent, may maintain an acthorizing the supreme court or county judge to tion to recover from the other its proportionate order that a flagman be stationed, or gates erect- share of the reasonable value of the use of the ed, at the crossing of a street, highway, etc., by house, where, by accident and mistake, such a railroad, prescribes no penalty for disobedience use was not included in the accounting beof such order, an indictment may be maintained tween them.-Boston & L. R. Corp. v. Nashua against a railroad company which is a common & L. R. Corp., (Mass.) 31 N. E. 1067. carrier for neglecting to comply therewith, under Taxation. Pen. Code, 154, declaring every willful a omission to perform a duty enjoined by law on any public officer, or on "any person holding a public trust or employment,' where no special provision is made for the punishment of such delinquency, punishable as a misdemeanor. 12 N. Y. S. 41, affirmed.-People v. Long Island R. Co., (N. Y. App.) 31 N. E. 873.

6. Under Pub. St. c. 13, §§ 38-40, which provide that in taxing railroad corporations the ag gregate value of the shares of their capital stock shall be taken as a basis of assessment, there should not be included in the assessment proposed but unissued new shares, although such shares are paid for, and have a market value. -Boston & A. R. Co. v. Commonwealth, (Mass.) 31 N. E.

Regulation of rates between connecting 696. lines.

2. The recitals in an award by the railroad commissioners as to the rates to be paid by one railroad company to another for hauling passengers, freight, and cars over its road, must be taken to show the character and scope of the hearing actually had before the commissioners, and to control an error in the petition for such hearing with reference to the statute under which it was apparently drawn, and also any difference between the relief prayed for and that actually awarded by the commissioners.-Boston & L. R. Corp. v. Nashua & L. R. Corp., (Mass.) 31 N. E. 1067.

3. St. 1874, c. 372, § 166, requires each of two connecting railroad companies at reasonable times and for a reasonable compensation to draw over its road the passengers, merchandise, and cars of the other, and to provide suitable accommodations for the passengers and mer chandise of the other road passing over it, and to receive and deliver the same in the manner

Mortgages.

7. Plaintiff agreed to erect a station for two railroad companies, each of which was to pay part of the cost thereof, and he agreed to pay part of the cost himself, though it did not appear that he was to have any interest in the station when completed. He built the station as agreed, but did not receive payment from one of the roads. Later this road was sold under a mortgage foreclosure, and bought in by the bondholders, who organized a new corporation to own and run it. The new corporation used the station, and plaintiff sued it for the amount which the former owners of the road agreed to pay him. Held, that he could not recover.-Mayer v. Ft. Wayne, C. & L. R. Co., (Ind. Sup.) 31 N. E. 567. 8. An agreement between the bondholders of the original company that a certain sum should be retained for the payment of small claims, as required, creates no obligation in favor of plaintiff.-Mayer v. Ft. Wayne, C. & L. R. Co., (Ind.

- Priorities.

9. Judgments obtained against a railroad company by the owners of land abutting on a street, through which the road runs merely by consent of the city council, for damages to their land caused by the construction and operation of such road, are entitled to priority of payment over mortgage bonds out of the fund produced by a sale of the road to foreclose such mortgage, since the right of the owners of private property taken or damaged for public use to compensation therefor, as guarantied by Const. 1870, art. 2, § 13, cannot be defeated by mortgaging the property of the corporation that takes or damages the property.-Penn Mut. Life Ins. Co. v. Heiss, (Ill. Sup.) 31 N. E. 135.

it receives and delivers its own passengers and Sup.) 31 N. E. 567.
freight. An award of the railroad commission-
ers, made on the petition of one of such com-
panies, recited that the furnishing of terminal
facilities by the other company was as heavy a
burden as the collection of the business by the
petitioning company, and that, therefore, the
receipts and income arising from the transpor-
tation in which the companies were thus jointly
interested would be apportioned equally be-
tween them on the basis of the mileage of such
transportation over their respective roads.
Held, that such award clearly contemplated that
the other company should draw over its road
the passengers, ears, and merchandise of the pe-
titioning company, and also furnish reasonable
transportation facilities for handling such traf-
fic, and that a further recital in the award
that the question of terminal freight charges
was not considered or included would not cut
down the effect of the operative words of the
award so as to render the petitioning company
liable to the other for such charges.-Boston &
L. R. Corp. v. Nashua & L. R. Corp., (Mass.)
31 N. E. 1067.

10. The fact that the mortgage was executed and recorded, and the mortgage bonds sold, before the judgments were recovered or the rights of action accrued, does not destroy the priority of the judgments over the mortgage, where the mortgage is given before the road is built in the street, since the bondholders are chargeable with notice of the acts of the railroad company in

completing its road.-Penn Mut. Life Ins. Co. v. Heiss, (II. Sup.) ?1 N. E. 138.

Negligence-Statutory provisions.

11. It is negligence per se for a railroad company to run a train of cars in violation of a city ordinance limiting the rate of speed, and if any one is injured in consequence of such negligence, without fault on his part, he is entitled to recover damages.- Pennsylvania Co. v. Horton, (Ind Sup.) 31 N. E. 45.

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at about the time he well knew an east-bound train should be passing. He looked westward before starting. A west-bound train was standing on the east side of the crossing, and plaintiff, of it, that the east-bound train had passed, and thinking, from the movements of those in charge that it was about to start, looked towards it, and after carefully listening, and failing to hear the bound and used to sound before reaching the whistle and bell which the east-bound train was crossing, stepped onto the tracks, and was struck by it, and injured. Held, that he was guilty of 12. It is no defense to an action against a contributory negligence in not looking both ways railroad company for injuries caused by a defect-on crossing.-Thornton v. Cleveland, C., C. & St. ive track that the road is being operated by trus- L. Ry. Co., (Ind. Sup.) 31 N. E. 185. tees of a mortgage, where such trustees are not acting under the order of any court, and are operating the road under the name of the corporation.-Wisconsin Cent. R. Co. v. Ross, (Ill. Sup.) 31 N. E. 412.

Who liable.

Accidents at crossings.

13. In an action for injuries received at a railroad crossing, it appeared that plaintiff's horse became frightened, and backed on defendant's track at a crossing at the same time that an engine of defendant, about 150 feet away, began approaching, backing towards the crossing, and that plaintiff, by his voice and violent gestures, tried to attract the attention of the engineer, but was unable to do so. Held, that the question of defendant's negligence should have been submitted to the jury.-Leavitt v. Terre Haute & I. R. Co., (Ind. App.) 31 N. E. 860.

14. The failure to give a signal required by law on approaching a crossing will not make the company liable for injuries sustained by any one at the crossing, unless it is shown that such failure was the cause of the injury.-Leavitt v. Terre Haute & I. R. Co., (Ind. App.) 31 N. E. 860.

15. Re7. St. 1881, § 4020, providing that, where a locomotive engine approaches a highway crossing, the whistle shall be sounded and the bei rung continuously until the engine shall have passed the crossing, does not apply to a train of cars without an engine, but those in charge of such a train will not be relieved from the obligation of taking other proper precautions.-Ohio & M. Ry. Co. v. McDaneld, (Ind. App.) 31 N.

E. 836.

16. Whether it is negligence to detach cars from a train, and send them along the track, and over a highway crossing, without an engine attached, is generally a question for the jury.Ohio & M. Ry. Co. v. McDaneld, (Ind. App.) 31 N. E. 836.

Injuries to persons on track.

20. Under Pub. St. c. 112, § 212, providing that loss of life by a person while walking or being a railroad company shall not be "liable for the upon its road contrary to law," there is no right of action where a person is killed while crossing a railroad track at a place at which he had no right to cross, since Pub. St. c. 112, § 195, prohibits persons from knowingly walking or standing upon a railroad track without right, and it was immaterial that when decedent was struck by the train he was in an unconscious and helpless condition by reason of an epileptic fit, when he went there in an attempt to cross the track unlawfully. McCreary v. Boston & M. R. Co., (Mass.) 31 N. E. 126.

Stock-killing cases.

for killing stock, defendant is liable, without 21. In an action against a railway company regard to its negligence or plaintiff's contributory negligence, when the road is not fenced.Terre Haute & I. R. Co. v. Schaeffer, (Ind. App.) 31 N. E. 557.

22. Where the evidence is conflicting as to at the point where the stock was killed, it is a whether or not the tracks could have been fenced matter for the jury to determine.-Terre Haute & I. R. Co. v. Schaeffer, (Ind. App.) 31 N. E. 557.

legally at large or not, where the road is not
23. It is immaterial whether the stock was
fenced.-Terre Haute & L. R. Co. v. Schaeffer,
(Ind. App.) 21 N. E. 557.

for damages caused by defendant's engine killing
24. In an action against a railway company
plaintiff's stock, where the complaint alleges,
where the animals entered upon it, it is not nec-
that the railroad was not fenced at the place.
essary to state that such place was not a public
have fenced the road at such place, or was bound
higi way, or that the railroad company could
(Ind. App.) 31 N. E. 557.
to do so.-Terre Haute & I. R. Co. v. Schaeffer,

Real-Estate Agents.

17. A railroad was on a grade above the highway. On either side of the crossing there was a drop of 15 to 18 inches from the track to the grade of the street. Plaintiff, a girl of 12 years, was driving a docile team of two horses, which See "Factors and Brokers." she was accustomed to drive. The horses had been started by a passing train, and were crossing the track quite rapidly. Plaintiff testified

Reapportionment.

Receipts.

that, as she went up the grade to the railroad, Of legislative districts, see "State Legislature." she placed her foot on the brake, and would have controlled them had it been level, but as the front wheels of the wagon dropped from the track it threw her out. Held, that the evidence sustained a verdict for plaintiff.-Louisville, E. & St. L. R. Co. v. Pritchard, (Ind. Sup.) 31 N. E. 358.

See "Release and Discharge."

contract.

RECEIVERS.

18. A complaint alleged that plaintiff was struck by a train while crossing defendant's rail- Liability for services rendered without road track with his team at night; that when plaintiff approached the track he stopped, looked, and listened, but, by reason of defendant's negligence in not giving any signals as the train approached the highway crossing, plaintiff did not hear or see the train; and that the accident was without any fault or negligence on his part. Held, that the complaint did not show that plaintiff was chargeable with contributory negligence. Ohio & M. Ry. Co. v. McDaneld, (Ind. App.)

31 N. E. 836.

19. Plaintiff started to cross a railroad at a highway crossing from a point 155 feet distant, v.31N.E.-77

1. One who renders to a receiver valuable services, with the expectation of being paid therefor, but not in pursuance of any contract, express or implied, cannot recover compensation therefor, being a mere volunteer.-Daniell v. East Boston Ferry Co., (Mass.) 31 N. E. 711. Possession of property held under trust deed-Closing up trust.

2. Where, in a suit against the trustee in a trust deed to close up the trust, it appears that

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