it is alleged that the master was negligent in alley.-Chicago v. Baptist Theo. Union.--keeping an incompetent servant, the burden Filed Sept. 21, 1885. of proof is on plaintiff to show the fact.Stafford v. C. B. & Q. Ry. Co.-Filed June 13, 1885. SUPREME COURT OF INDIANA. PRACTICE BEFORE COMMISIONERS NOTICE. In a proceeding before county OF commisioners to declare a road a highway, parties who appear, and make no objection to want of notice, waive any objection which might have been made. Where an appeal has been taken, and a motion to dismiss the appeal has been overruled, the supreme court cannot consider such motion unless it is made a part of the record or is embraced in the bill of exception.— Washinton Ice Co. v. Lay.-Filed Sept 17, 1885. Where a child while playing upon a sidewalk is injured by reason of bad condition of the walk it is held that the city is liable. The city owes the same duty to a child as to an adult, and it must keep the sidewalk in reasonably good repair. It is lawful for a person to be upon the sidewalk, for pleasure or for idle curiosity.-City of Chicago v. Keefe.-Filed Sept. 22, 1885. MUNICIPAL CORPORATION ESTOPPED TAXED-RECOVERY OF FIVE TIMES THE FROM DENYING PLANS AND SPECIFICATIONS AMOUNT.-A statute authorising the recovery of five times the amount of fees illegally taxed Where plans and specifications for a public and collected by an officer, held not unbuilding are placed on file as a basis for constitutional. An action for such recovery MADE BY A PROPER OFFICER OF THE CITY. bids for building, the city is estopped from may be maintained any time within, five subsequently denying such plans and speci- years.-State v. Stevens.-Filed September fications. Stipulations of a contract con- 17, 1885. sidered. City of Chicago v. Sexton.-Filed Sept. 21, 1885. INSTRUCTION-ERRONEOUS, FOLLOWED BY A CORRECTION.-A court having given instructions which are erroneous cannot cure the error by subsequently giving instruction correctly on the same point. The erroneous instruction must be wholely withdrawn.— McCrory v. Anderson.-Filed September 16, 1885. DESCENT ADVANCEMENT BY PARENT TO CHILD RIGHTS OF THE GRAND CHILDREN. -Where an advancement is made by a parent to a child, and accepted by the child in full satisfaction of his portion in his father's estate, and such child dies before his father, the grand children by the deceased son is cut off by advancement to their father, DEATH BY WRONGFUL ACT-ACTION FOR from any interest in their grandfather's DAMAGES-COMPLAINT.-In an action by a estate. Simpson v. Simpson.-Filed Sept. personal representative for death caused by 23, 1885. a wrongful act, the petition must allege the existence of the widow, children or next of kin, for whose benefit the action is brought. EXEMPT FROM TAXATION-Assess- -Stewart, Admr. v. T. H. & I. R. Co.MENTS FOR BENEFITS.-Where the charter Filed Sept. 16, 1885. CORPORATION-FOR POSES CHARITABLE PUR of a corporation for charitable purposes contains a clause exempting it from taxation MORTGAGE--FORECLOSURE-FAILURE of it is nevertheless liable for assessments MORTGAGED PREMISES TO SATISFY THE DEBT for benefits for the purpose of opening an-LEVY ON OTHER PROPERTY.--Although the order of sale in foreclosing a mortgage EMBEZZLEMENT-MONEY COLLECTED ON direct that levy shall be made on other LOTERY TICKET.- Where the indictment property of the debtor to satisfy the debt, yet if such levy is made before the mortgaged property is exhausted such levy is void. Thomas v. Simmons.--Filed September 15, 1885. charges the defendant with embezzlement of money collected on lottery ticket, and the offense is described as "agent and employe for the purpose of collecting money on a certain lottery ticket," the crime is sufficiently charged. It is no defense that it was SCHOOL TRUSTEE-POWER OF SPECIAL a lottery ticket which the statute does not AGENT WITH LIMITED POWERS.-It is in- uphold.—Woodward v. State-Filed Sept. cumbent on those dealing with a school 24, 1885. trustee to know whether he acts within the scope of his authority or not. Where a IMPOUNDING CATTLE-REPLEVIN-BURtrustee borrows money for school purposes DEN OF PROOF.-In an action for the rewhen he already has township funds in his covery of cattle impounded, the burden of hands sufficient for the purpose, he is exceed-proof is on the defendant to show that the ing his authorty, and his act is void. cattle were runing at large on unenclosed Union Tp. v. 1st Nat. Bank-Filed Sept. land. He must show that the land was 15, 1885. wholely uninclosed. - Nafe v. Leither.Filed Sept. 25, 1885. TENANT REMOVING FIXTURES - RE- grounds. The question of contributory NEWAL OF LEASE.—A tenant who makes negligence is a question for the jury.—Ross improvements on a leasehold, may remove v. City of Davenport-Filed June 12, 1885. them before the expiration of his lease, if he can do so without permanent injury to the TELEGRAPH COMPANY-NOT LIABLE FOR freehold. If his lease expires and he enters ERROR WHICH CAUSES LOSS OF PROSPECTIVE into a new lease, in which the fixtures annexed PROFITS ONLY.—A telegram sent from Vicksby him are not reserved, he is held to have burg, Michigan, was sent to plaintiff, and waived his right to remove them.-Hedderick when delivered to him as written and sent v. Smith-Filed Sept. 25, 1885. WILL-CONDITIONAL-CONTSTRUCTION from Vicksburg, Mississippi, in consequence of which plaintiff failed to give his order for certain goods from which it subse A will contained the following clause: "If quently appeared, he would have made a my husband survive me, I desire, at his profit had he given his order. In an action death, that all I own or may be possessed against the telegraph company for his prosof shall go to, and become the property of, pective damages, Held that he could not my beloved step-daughter Harriet E. Gib- recover.-Pennington v. W. U. Tel. Co.son." Held that said Harriet E. Gibson Filed June 13, 1885. I could not inherit under said will unless the AGENTS ACTING FOR BOTH PARTIES-COM OF ERRORS. An agent of a corporation about to purchase machinery for his principal is offered a comPERMANENT USER-IM- mission by the vendor, if he will consumHe accepts and is paid part REAL ESTATE pay balance, it is held that he may recover of the vendor as agreed. A cause appealed on an assignment of error on the point that the trial court overruled a motion for a new trial is insufficient.-Leekins v. Nordyke & Marmon Co.-Filed June 9, 1885. a loan of money on a mortgage, exhibited of the agreed commission. Upon refusal to the property which consisted of city lots nos. 2, 3 and 4 and a strip of 5 feet off lot 5, with improvements thereon. The three lots and strip of 5 ft. was all inclosed in one yard, and one of the houses was in part situated on the five foot strip belonging to lot 5. The loan was made and the mortgage so written as to cover only the three PRACTICE SECONDARY EVIDENCE full lots, and not the five foot strip. Held MORTGAGE FOR A LARGER SUM THAN THE that so far as the occupancy of the five foot DEBT-FRAUD.-Where secondary evidence strip was in the nature of a permanent user, is offered upon the trial, and is not objected the lien of the mortgage would extend to the five foot strip. To that extent there was an implied grant.-J. H. M. Life Ins. Co. v. Patterson.-Filed Sept. 15, 1885. to, upon appeal the ojection that it is not primary evidence cannot be urged. A mortgage given for a larger sum than the real debt, is a badge of fraud.-Taylor v. WenelingFiled June 13, 1885. SUPREME COURT OF IOWA. PRACTICE-IMPROPER REMARKS BY COUN- HOMESTEAD-PART OF BUILDING USED SEL IN ARGUMENT.-When the line of argu- FOR BUSINESS PURPOSES.-Where the cellar, ment by counsel is not objected to, and the first and fourth floor of a building are used trial court refuses a new trial based upon for business purposes, and the remainder of the improper line of argument, the appellate the building used for a dwelling, Held that court will not reverse the judgment on that it is not exempt from execution for debt on the claim that it is a homestead.-Johnson v. recovery, the motion should be granted. Moser.-Filed June 12, 1885. EXECUTION-CLAIM BY THIRD PARTYFAILURE OF CREDITOR TO GIVE BOND-NEW EXECUTION.—Where an execution is issued, and when levy is made the property is claimed by a third party, and the sheriff demands a bond of indemnity which the creditor refuses to give. Held that a new execution may issue and levy again made. -Clark v. Reiniger.-Filed June 11, 1885. When instructions have been submitted and given to the jury, and the opposite party requests substantially the same instruction to be given, it is not error for the court to refuse to give it.—Spears v. Town of Net Ayr -Filed Sept. 24, 1885. ΤΑΧΑΤΙΟΝ - EXEMPTION-FORMER EXEMPTION NOT CONCLUSIVE SUBSEQUENTLY. Where property has been adjudged exempt one year, that is not conclusive as to its being exempt another year. A claim of exemption must be specifically shown.— ATTACHMENT-WHAT IS A VALID LEVYEVIDENCE OF FRAUDULENT TRANSFER.-An Tubbessing v. City of Burlington.—Filed officer, in making a levy of attachment, Sept. 23, 1885. must do that which amounts to a change of possession. Simply barricading the door of at building in which the goods are, is not a valid levy. Where the price paid for goods is wholely inadequate, it is a badge of fraud and may be considered with other evidence on the question of fraud.—Bickler v. Kendall—must be introduced to show that fact, otherFiled Sept. 23, 1885. NECESSARIES-SOLD SALE OF INTOXICATING LIQUors—DamaGES-LIEN ON PROPERTY.-Where the petition, in an action for damages for illegally selling liquor, does not alleged ownership of the lot on which the saloon stands, evidence wise the judgment for damages will not be a lien upon the land.-Flint v. Gauer-Filed ΤΟ WIFE IN DIS- Sept. 23, 1885. REGARD OF NOTICE TO CONTRARY BY HUS MA BAND. Where a merchant sells household ABORTION - INDICTMENT-IMPLIED necessaries to a wife after receiving notice LICE.-Where drugs are administered with from the husband not to do so, he cannot intent to produce an abortion malice will recover of the husband for the same, if the be implied. Upon a trial of a charge of husband is in the habit of furnishing a abortion the fact of pregnancy, must be reasonable supply for use of the family.- shown. Legal malice is embraced in any Devendorf v. Emerson.-Filed September act willfully done which the party knows 23, 1885. will injure another in his person or property. Filed Sept. 22, 1885. DEFECTIVE SIDEWALK-INJURY-DAMAGES.-A party knowing that a sidewalk is in bad condition and yet goes upon it in the darkness of the night time, when there is another walk which he might take, is guilty of contributory negligence and cannot recover for injury received.-Mc Guity v. City of Keokuk-Filed Sept. PRACTICE--NEWLY DISCOVERED EVIDENCE —INSTRUCTION.-Where a motion is made for a new trial on the ground of newly discovered evidence, which if true would defeat CONTRIBUTORY NEGLIGENCE BURDEN OF PROOF-APOTHECARIES.-In an action for damages resulting from negligence, it is incumbent on the plaintiff to show that he is entirely free from fault. Where a person orders a prescription at a drug store, and the druggist makes a mistake, and takes the wrong medicine, and the party subsequently goes to the same jar from which he saw the druggist take the drug, and helps himself and thereby, in consequence of the druggists former mistake, he gets the wrong medicine, he is guilty of trespass in so taking the med--Where a party is appointed trustee, and icine, and the druggist is not liable for funds placed in his hands for safe keeping, damages. Gwinn v. Duffield.-Filed Sept. a general assignment for the benefit of 23, 1885. creditors is made, including the funds in his hands, if the trustee in his invidual capacity, MURDER EPILEPTIC MANIA AS A DE is a creditor of the assignor, he cannot offFENCE-EXPERT TESTIMONY.--Where epilep-set his claim against the funds in his hands. tic mania is set up as a defense in a trial for A debt due him in his individual capacity murder, it is error for the court to instruct cannot be off-set against a debt due as the jury that the testimony of experts in trustee.—1st Nat. Bank v. E. T. Barnum etc. behalf of the defense, is the lowest kind of Filed Sept. 29, 1885. testimony, and that it ought not to be allowed to overthrow positive testimony.State v. Townsend.-Filed September 24, 1885. ΤΑΧΑΤΙΟΝ COMPANIES OWNING CARS, AND CARRYING FREIGHT, NOT A RAIL ROAD COMPANY.-A company, other than a railroad company, owning cars and carrying freight, is subject to be taxed upon its gross receipts. The act imposing the tax affects residents and non-residents alike.-Fargo v. Auditor General.-Filed Sept. 29, 1885 EXEMPLARY DAMages—Excessive.--The amount of punative damages which may be given is largerly in the discretion of the jury, and an appellate court will not disturb the judgment on the verdict unless malice on the part of the jury is apparent and irre- SUPREME COURT OF MINNESOTA. sistible. Saunders v. Mullen-Filed Sept. 24, 1885. TAX-WHERE A LIEN ON VENDOR AND VENDEE-SALE ON CONTRACT-MORTGAGE.-The vendee of lands under a contract of sale has an interest PERSONAL which may be subject to a mortgage. A PROPERTY.— Where taxes have been assessed mortgagee has only a lien, and not the legal on personal property, and before payment of the tax the property is sold and transfered the lien for taxes does not follow the property into the hands of the purchaser. An attempted sale of the property for the taxes may be enjoined.-Jaffray v. Anderson.Filed Sept. 23, 1885. title to the land mortgaged. A release in bar of the mortgagee's equity of redemption must be fairly obtained. If any undue advantage is taken of the debtor by the creditor, by reason of his needy circumstances, the mortgage may be set aside.-Niggeller v, Maurin-Filed Aug- 14, 1885. SUPREME COURT OF MICHIGAN. TREE CLAIM-MAY BE ASSIGNED-Where WILLAEVANCEMENTS UNDER-HEIR'S a party has entered land under the act of TESTIMONEY.—A testator's certificate of an congress as a tree-culture claim, such claim admancement is not, of itself, sufficient to may be assigned, the assignee enter and establish the fact of advancement, unless enjoy the benefit of the original entry, proproof of payment is made otherwise. Heirs vided the assignor makes and delivers a are not excluded from testifying in a ques- proper relinquishment within the required tion of advancement and distribution, as time. The mere consent of the assignor being adversely interested to the represen- that the assignee might take possession is tative of their testator's estate.-McClintock's insufficient.-Palmer v. March-Filed Aug. Appeal-Filed Sept. 29, 1885. 14, 1885. TRUSTEE-ASSIGNMENT FOR BENEFIT OF PRINCIPAL AND AGENT--REVOCATION creditors—Debt due trustee-Set off. SubsequenT SALE.-Where a land owner |