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INDEX.

ABUTTING LANDOWNERS.

Where a municipality, in pursuance of state legislative sanction, assumes control of the trees within its territory, an abutting owner, on a street of such municipality, is relieved from the care of a tree standing on the sidewalk in front of his premises, to the extent that he will be exempt from liability to respond in damages, in a civil action, to an individual who has suffered an injury of which the tree was a producing cause. Rose v. Slough,

233

ADJOINING LANDOWNERS.

Plaintiff and defendant entered] into a covenant as follows: "The party of the second part (defendant) covenants and agrees that in case it shall make any excavation upon the adjoining land, which shall interfere with the natural support of the surface of such parcel, it will construct and maintain such retaining walls or other devices, as may be necessary to prevent its slopes from encroaching on said parcel." The defendant made the excavation contemplated by the covenant, but failed to protect the ad

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Evidence that people walked up and down, going from one place to another across railroad tracks in a city, across the ties; that there was no sidewalk across the railroad, no planking, no gates or fence, when accompanied by failure to produce evidence of a defined path, or a location of the lines of the alleged highway, is insufficient to justify submitting to a jury the question of the existence of a highway across the tracks by adverse user. Drelich v. Erie Railway Co., 91 N. J. L. 600, distinguished. Brooks v. Penna. R. R. Co., 394

ALIENS.

joining land, upon which plaint- 1. The defence of alien enemy, in

iff conducted a mining enterprise, until after the damage. to plaintiff's shaft had resulted. Held, that the covenants contemplated a protective construction, by defendant, to the plaint

order to be considered in an action at law, should be made a part of the record and stated with accuracy by an appropriate pleading, or motion under our present practice. It is not fa

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for review of a case tried in the District Court by a judge sitting without a jury simply presents a judgment based upon conclusions of the court, without any objections or exceptions entered or taken by counsel during the course of the trial or any request to find certain facts or conclusions of law, to the refusal of which objection might have been taken, the judgment will be affirmed. Downs Sales Co. v. Owen Magnetic Car Co.. 93

try, and was living and work- 1. Where the record brought up ing in this state as aforesaid. Held, that it was improper to nonsuit him on the ground that he was an alien enemy, first, because the defence had not been pleaded or otherwise entered] upon the record; secondly, because the alien enemy rule is not applicable to a citizen of an enemy country peaceably residing and doing business here with the implied license and permission of our government; there being nothing to show that he was within any of the classes denounced by the Trading with the Enemy act or any presiden- 2. On an appeal every intendment tial proclamation.

ANIMALS.

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Ib.

is in favor of the correctness of the judgment below, and doubt will not lead to a reversal. Kein v. Katz, 406

Where a party, without himself 3. The court having directed a verdoing an act which would induce an ordinary, good-natured, kind and gentle dog to bite, is bitten by a dog, the owner of the dog is liable in damages for the injury suffered, upon evidence showing that the dog, with the knowledge of the owner, had a mischievous propensity to bite, whether in anger or not, and in order to say that a dog who has bitten a person did not at the time manifest a mischievous pro

dict for plaintiff for a specified amount, which amount was disputed at the trial only as to the propriety of a rate of one dollar per day as a factor, and in no other respect-Held, that on appeal an objection that the period of time for which such rate was charged was unreasonable, was untenable, as not within the objection to the direction, the exception, or the ground of appeal assigned. N. Y. Central R. R. Co. v. Petrozzo, 425

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Where the claim of the defendants 3. A bastardy case under our stat

in an attachment suit is a claim of right not shown by documents which the court can construe, but shown by facts and certain acts of a foreign government, the effect of which and the inference to be drawn therefrom are proper for inquiry by a jury, a motion to strike out the complaint, based upon such defence, will be denied. Molina v. Comision, &c., 38

AUTO BUSSES.

See CARRIERS, 2.

MOTOR VEHICLES, 1, 2, 3.

ute is not a criminal but a civil proceeding; the burden of proof does not require proof of paternity beyond a reasonable doubt; and while the incidental element of criminality involved in the paternity of an illegitimate child entitles the putative father to present evidence of good character, which the jury should consider in connection with the other evidence in the case, the defendant is not entitled to be absolved if the character evidence, either alone or in connection with the other evidence, raises no more than a reasonable doubt that he is the father of the bastard child. Ib.

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Cases Affirmed.

Brokers.

2. On an agreement between de-] fendant and a third party which provided that deeds for real estate should be delivered and exchanged between them on a certain date, and an agreement be

for commission by the broker upon a sale of other property. Ib.

CARRIERS.

tween the plaintiff and defend- 1. A provision in a bill of lading.

ant that provided that plaint-
iff's commission as real estate
broker should be paid by de-
fendant on the date set for the
delivery of the deeds, which did
not take place because the third
party was unable to furnish a
marketable title to the premises
he was to convey as part of the
consideration, the commission
was. nevertheless, earned be-2.
cause the defendant sued the
third party for breach of the
contract negotiated by the
broker and recovered damages
therefor.

Ib.

3. Although in an agreement between a principal and his broker for the sale of real estate, the rate of commission on

requiring the giving of notice of a claim for damages against a carrier, must be given a reasonable construction, and a substantial compliance therewith on the part of the shipper is all that is required. Hyatt Roller Bearing Co. v. Penna. R. R. Co.,

94

A jitney bus owner, who undertakes to carry for hire all persons who apply for passage, is a common carrier of passengers; as such, he owes them a high degree of care for their safety. Schott v. Weiss, 494

CASES AFFIRMED.

the dollar is not provided for as 1. Daisy B. James, Appellant, v.

Delaware, Lackawanna and
Western Railroad Co. et al., Re-
spondents. From the Supreme
Court,

149

required by the terms of section 10 of the statute of frauds, supra; nevertheless, the fixing of a sum certain by way of commission is within the true intent and meaning of the act, 2. Jacob Castelbaum, Respondent, and the broker is entitled to recover it. Mendles v. Danish, 74 N. J. L. 333, approved. Ib.

v. David Wolfson, Appellant. From the Supreme Court, 165

3. John Handwerk et al., Respondents, v. The Town of Guttenberg, Appellant. From the Supreme Court, 178

Handwerk et al.. Respondents, v. The Town of Guttenberg, Appellant. From the Supreme Court,

4. A broker, having brought about
the sale of another property for
his principal, and the amount of
the commission to be paid on
that sale having been in dispute 4. John
between them, a receipt given
by the broker acknowledging
payment of a certain sum for
selling the property there in dis-
pute, concluding "and have no
claim whatsoever," does not
operate as a release of a claim

181

5. Benjamin H. Kaufman, Respondent, v. Elma Mennen Williams et al.,. Appellants. From

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