Page images
PDF
EPUB

case, the liability rests on the principle of equitable estoppel. Hahlo v. Mayer, 753. 2 MINING PARTNERSHIP — RIGHTS OF RETIRING PARTNER. When the cotenants of a mine employ a manager to work it and to account to them for the proceeds, thus forming a partnership, after which one of the co-tenants withdraws from such arrangement so far as the manager is concerned, without dissolving the partnership as to the remaining cotenants, he may maintain an action in his own name, without joining his co-tenants, to recover from such manager his share of the proceeds of the mine subsequently coming into his hands. Slater v. Hass, 440.

See PARTTITON, 3.

PASSENGERS.

See CARRIERS, 1-26.

PAYMENT.

L. NOTHING IS PLEADABLE AS PAYMENT except money, or something agreed to be accepted in lieu thereof, and no subject of set-off can be treated as in any sense payment. Burton v. Willin, 363.

2 APPLICATION OF. In respect to the appropriation of payments made by a debtor to a creditor who holds more than one debt against him, the debtor may generally appropriate payments; and if he does not, the creditor may; and if neither appropriates them, the law will make the application according to the justice of the case. The creditor cannot, however, make such application as would, under the circumstances, be inequitable and unjust to the debtor. Phillips v. Herndon, 59. 2. CONTRACT LAW CHANGING PLACE OF PAYMENT.-The holder of a certifi cate of indebtedness payable at a designated place cannot be deprived of his rights by a subsequent law or order making it payable elsewhere, and declaring if it is not there presented for payment interest thereon shall cease. The only method in which a debtor can escape liability is by having money ready for the creditor at the place of payment named in the contract. Carr v. State, 624.

See BANKS and Banking,

PEDDLERS.

L "HAWKERS" AND "PEddlers " DEFINED. -A"hawker" is a person who carries about merchandise from place to place for sale, as opposed to one who sells at an established shop. A "peddler " is a person who goes about from house to house selling commodities. Emmons v. City of Lewistown, 540.

2 BOOK-CANVASSER IS NOT HAWKER OR PEDDLER. — A person who canvasses from house to house, taking orders for the future delivery of books and periodicals or other publications, is neither a hawker nor a peddler, within the meaning of the Illinois statute authorizing municipal corpora tions to license, regulate, or prohibit hawkers and peddlers. And therefore a city council has no power to pass an ordinance prohibiting such canvassing within the city without first obtaining a license, or imposing a penalty therefor. Id.

PENALTIES.

L PENALTIES Are not DamageS, BUT ARE PUNISHMENTS imposed for breach of duty enjoined by law. Harbor Commissioners v. Redwood Co., 321.

2. Penalty, What Constitutes. — A penalty is in the nature of punishment
for the non-performance of an act or for the performance of an unlawful
act, and involves the idea of punishment, whether enforced by a civil or
criminal procedure. Woolverton v. Taylor, 521.

& EQUITY NEVER ENFORCES EITHER A PENALTY OR A FORFEITURE. — Where,
therefore, a court decides that a certain liability created by statute can
be enforced only in a court of equity, it, in effect, decides that the suit
brought to enforce such liability is not for the recovery of a penalty.
Id.

See CARRIERS, 45; CORPORATIONS, 5; LEGISLATURE; MUNICIPAL CORPORA
TIONS, 5; STATUTES, 1.

PHYSICIANS AND SURGEONS.
See INSURANCE, 13, 14.

PLEADING.

1. COMPLAINT IS NOT DEMURRABLE BECAUSE IT ASKS SOME RELIEF THAT
CANNOT BE GRANTED. Townsend v. Bogert, 835.

2 PLEADINGS-VARIANCE. —A Complaint alleging that a vendor obligated
himself to convey land "in fee-simple by warranty deed" may be sup-
ported by title bonds reciting that he would convey the land "by good
and valid deed or deeds in common form." This does not constitute a
variance, as a good and valid deed in common form is, in legal effect, a
warranty deed. Phillips v. Herndon, 59.

[ocr errors]

& PROPER AMENDMENT TO COMPLAINT. — An amendment curing a defect
in a complaint in failing to allege a waiver of a provision in an insur-
ance policy, that a loss should not be payable until sixty days after proof
thereof, does not state a new cause of action. California Ins. Co. v.
Gracey, 376.

4. AMENDMENT TO DECLARATION which brings in no new party and no new
cause of action into the suit is properly allowed. Williamson v. Johnson,

117.

5. CROSS-COMPLAINT may be Filed by DefeNDANT IN AN ACTION TO QUIET
TITLE. Winter v. McMillan, 243.

-

6. CROSS-COMPLAINT BRINGING IN NEW PARTIES. — In an action to quiet title,
the defendant may bring in new parties by cross-bill, when necessary for
the complete determination of the rights of the parties. Hence where the
defendant claimed that H. had been the owner of the property, and
while such owner had conveyed it to plaintiff, in trust, as security from
loss on account of certain contingent liabilities; that H. was still in pos-
session of the property, but that defendant had succeeded to his inter-
est under an execution sale, — it was held that H. might be brought in by
cross-bill for the purpose of enabling the court to completely determine
all the rights of all the parties, and to ascertain the extent of plaintiff's
rights under the trust deed to him. Id.

7. A party is estopped by the allegations in his own pleading. Knoop v.
Kelsey, 777.

[ocr errors]

8. DEFECT IN PLEADING CURED BY VERDIOT WHEN, — A verdict will aid a
defective statement of title, but will never assist a statement of a de-
fective title or cause of action. Where there is a defect, imperfection,
or omission in a pleading, either in substance or in form, which would
have been a fatal objection upon demurrer, yet if the issue joined be

such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omis sion is cured by the verdict. Chicago etc. R. R. Co. v. Hines, 515. Bee BANKS AND BANKING, 15; CORPORATIONS, 1; DURESS; ESTOPPEL, 3; FRAUD, 1-4; LIBEL AND SLANDER, 11; JUDGMENTS, 1, 16; MALICIOUS PROSECUTION, 1; MASTER AND SERVANT, 8; MINES AND MINING, 3, 5; NEW TRIAL; PARTITION, 1, 2; TRIAL, 10; TROVER.

PLEDGE

See MORTGAGE, 3.

POLICE POWER.

See GAS COMPANIES, 2

POWERS OF ATTORNEY.
See AGENCY, 3, 4

PRESUMPTIONS.

See APPEAL AND ERROR, 3, 4, 9; BANKS AND BANKING, 12; CARRIERS, 28, 47; CORPORATIONS, 11; CRIMINAL Law, 8, 4; Dowan

PRINCIPAL AND AGENT.
See AGENCY.

PRIVILEGED COMMUNICATION.
See LIBEL AND SLANDER, 10.

PROBABLE CAUSE

Bee CARRIERS, 35, 36; MALICIOUS PROSECUTION, 2-4.

PROBATE COURTS.

See APPEAL AND ERROR, 5; COURTS.

PROCESS.

1. JURISDICTION SERVICE BY PUBLICATION. Jurisdiction over defendant is acquired in cases of service of summons by publication only when the statutory requirements are successively and accurately taken. Beckett v. Ouenin, 399.

Id.

2 JURISDICTION - ORDER FOR SERVICE BY PUBLICATION. — An order for publication of summons must be based upon an affidavit by plaintiff showing affirmatively an existing cause of action against defendant; otherwise the court acquires no jurisdiction over defendant. NOTICE TO NON-RESIDENT DEFENDANT. - Notice by publication or other substituted service, in connection with an attachment by trustee process of property owned by a non-resident, and provided by the law of the state where the property is located, is not in conflict with the Fourteenth Amendment to the constitution of the United States, and is suf. ficient to support a proceeding and judgment in rem. Hogle v. Mott, 106.

AM. ST. REP., VOL. XXII.-63

4 NOTICE TO NON-Resident DefeNDANT. — Vermont Revised Laws, sections 1402–1404, providing for service of notice on non-resident defendants, include justices' as well as other courts. Id.

NOTICE TO NON-RESIDENT DEFENDANT in trustee process in a justice's court, in accordance with the requirements of the statute, is sufficient, and only such further proceedings are needed to reach and hold money in the hands of the trustee as would have been necessary if there had been personal service of the writ. Id. SUMMONS- AMENDMENT.

- Where a summons dated July 16th requires the defendant to appear on the first Monday in July, instead of the first Monday in August, as prayed for in the declaration, it is not void, upon the appearance of the defendant at the latter date, and may be amended on motion. Richmond etc. R. R. Co. v. Benson, 446.

See CORPORATIONS, 13.

PROMISSORY NOTES.

Bee NEGOTIABLE INSTRUMENTS, 1, 2, 4, 7, &

PROXIMATE CAUSE

See RAILROAD COMPANIES, 7.

PUNISHMENT.

See PENALTY, 1, 2.

QUIETING TITLE

See MORTGAGE, 6; PLEADING, 6; TRIAL, 2

QUO WARRANTO.

See OFFICE AND OFFICERS, 1.

RAILROAD COMPANIES.

1. NEGLIGENCE - INJURY TO CHILD- EVIDENCE OF CUSTOM IN REGARD TO TURN-TABLES. In an action against a railway company for negligently causing the death of a child in leaving a turn-table unlocked, evidence of a custom of railways to leave their turn-tables unlocked and unfastened at all times, whether in actual use or not, no matter whether Inclosed or in a public place, is inadmissible on the issue as to whether or not the turn-table was secured, at the time of the injury, as careful and prudent men would ordinarily fasten it under similar circumstances. Ihoaco R'y & Nav. Co. v. Hedrick, 169.

A NEGLIGENCE UNFASTENED TURN-TABLE

INJURY TO CHILD, — It is the duty of a railway company to so fasten its turn-table as to prevent injury to those who, by reason of their tender years, are incapable of comprehending its dangerous character, either by locking it, or in some other way preventing access to it. A failure to take such precaution is negligence on the part of the company, for which it must respond in damages. In such case, the fact that prior to an accident the turn-table had been secured by a rope, which might be untied by children playing upon it, and in the past had proved to be an insecure fastening, will not exonerate the company from liability. Id.

2 DUTY OF ENGINEER. It is the duty of a railroad engineer while running his engine to keep a careful lookout along the track, in order to

avert danger, in case he shall discover any obstruction in front of him, whether at a crossing or elsewhere. Deans v. Wilmington etc. R. R. Co., 902.

4. NEGLIGENCE - PRESUMPTION. RAILROAD ENGINEER who sees a human being walking along or across the track in front of his engine has a right to presume, without further information, that he is a reasonable person, and will get out of the way of harm before the engine reaches him; consequently, it is not negligence in the engineer to act on such presumption. Id.

■ DUTY OF ENGINEER. When an engineer discovers, or by reasonable watchfulness may discover, a person lying upon the track asleep or drunk, or sees a human being known by him to be insane, or other. wise insensible to danger, or unable to avoid it, upon the track in front, it is his duty to resolve all doubt in favor of the preservation of life, and immediately use every available means, short of imperiling the lives of passengers on his train, to stop it. Id.

4. CONSTITUTIONAL LAW-KILLING STOCK-FENCES-DUE PROCESS OF LAW. In the absence of a statute making it the duty of railroad companies to fence their tracks, a statute making such companies lia. ble for live-stock killed by them on their unfenced tracks, without regard to their own negligence or the possible contributory negligence of the owner of the stock, is unconstitutional and void, as imposing a penalty without a wrong, and taking property without due process of law. Oregon R'y & Nav. Co. v. Smalley, 143.

7. NEGLIGENCE-PROXIMATE CAUSE - Loss OF HORSES FROM BURNING PASTURE FENCE. - Where a railway company negligently burns a pasture fence, whereby horses escape and become lost to the owner, the company is liable to him for their value, notwithstanding its ignorance of the fact that the horses had been recently brought from a remote distance, and placed in the pasture. The destruction of the fence was the proximate cause of the loss of the horses. St. Louis etc. R'y Co. v. McKinsey, 54. & NEGLIGENCE-SETTING FIRE ON RIGHT OF WAY. - Where a railroad company, whose right of way as well as surrounding lands is composed of one vast bed of turf or peat, intentionally sets fire to such right of way in a season of great drought, it is guilty of positive tort, and not of mere passive negligence, and is liable for all loss resulting to adjoining owners or others to whose land the fire is communicated by an ordinary wind. Louisville etc. R'y Co. v. Nitsche, 582. NEGLIGENCE-SETTING FIRE ON RIGHT OF WAY. may remove combustible material from its right of way, and while it may ordinarily employ fire for that purpose without committing negli. gence, still, when the use of fire greatly imperils adjoining property, it is a positive wrong to employ fire for such purpose, for which the com. pany must respond in damages in case of loss. Id.

- A railroad company

10. POWER OF RAILWAY COMPANY TO LOCATE STATIONS ON ITS ROAD. A railway company cannot be compelled, on the one hand, to locate stations on its road at points where the cost of maintaining them will exceed the profits resulting therefrom to the company, nor allowed, on the other hand, to locate them so far apart as to practically deny to communities on the line of the road reasonable access to its use. Mobile etc. R. R. Co. v. People, 556.

11. RAILWAY COMPANY CANNOT BIND ITSELF BY CONTRACT TO MAINTAIN STATIONS AT PARTICULAR POINTS. - A railway company cannot bind itself

« PreviousContinue »