1. Officers who contract for the erection of public buildings, and fail to require security from the contractor for the pay- ment of labor and material claims, as required by Act No. 94, Laws of 1883, are liable in damages, at the suit of labor- ers and material-men injured thereby. 260 (1).
2. The liability of officers to pay for labor and materials fur- nished for the erection of public buildings, by reason of their failure to require security from the contractor for such pay- ment as provided by Act No. 94, Laws of 1883, is more in the nature of a suretyship than a tort, when the officers have acted in good faith, and they are not bound to wait until suit is brought against them before making such payment. 261 (2).
3. Where a contractor for the erection of a public building was not required to give security for the payment of labor and material claims,-both parties being ignorant of the law requiring it, and on being thereafter requested to execute the required bond refused to do so, and made default in the performance of the contract, which was completed at the expense of the other party, in a suit by the contractor for the balance claimed to be due under the contract, the defend- ant may deduct from said claim the amount paid for material furnished, and labor performed, for the plaintiff, and also the amount due from him for material and labor, and for the payment of which demands have been made upon the defend- ant's officers, who, by reason of their failure to require said bond, are personally liable for such claims. Id. (3).
Where the owner places lands in the hands of a broker for sale, at a fixed price, who agrees with a second broker, with- out the knowledge of the owner, that if he will find a pur- chaser at a specified increased price they will divide the profits, and the second broker agrees with a third broker that he may find a purchaser at a still further fixed increased price, and that they shall divide equally whatever he may secure above said last named price, such last contract is not void on the ground of public policy because the land-owner and first broker are ignorant of it. 318 (4).
1. Sales-books kept by the receiver of taxes, containing a state- ment of the sale of delinquent tax lands, and by him turned over to the city treasurer, who minutes therein redemptions or sales of city bids, are public records within the meaning of Act No. 205, Laws of 1889, providing for the inspection of records and files in public offices. 363 (1).
2. A city can have no private books, not even of accounts, not open to the inspection of its citizens. Its doings, and the doings of its officers, and the records and files in their offices, must be open to the public; nor can fees be charged for such inspection to those having the right to examine and inspect such files and records. Id. (2).
3. The Legislature intended to assert, by Act No. 205, Laws of 1889, the right of all citizens, in the pursuit of a lawful business, to make such examinations of the public records in public offices as the necessity of their business might require, subject to such rules and restrictions as are reasonable and proper under the circumstances. 364 (3).
Requests for findings by the jury which do not call for their conclusions on any fact in issue, but only on the truthful- ness or accuracy of certain named witnesses on certain facts which were matters of evidence merely, however significant they may have seemed, are very objectionable. 654 (1). RAILROAD COMPANIES.
A deed of right of way contained the following defeasance clause:
"If the said railway company, its successors or assigns, should fail to complete said railway through said premises, and to put the same in operation, within three years from the date hereof, or if, after such railway is completed and put in operation, it should cease to be used and operated as a rail- road, then, in either event, this release shall cease to be operative, and the right of way granted thereunder shall terminate."
The railway company ceased to use the right of way except for the storage of cars, and it is held that thereupon the deed had no further force or effect. 615.
See DAMAGES (4); EVIDENCE (16); FELLOW-SERVANTS (2).
Rails placed in a line fence, but upon the land of the adjoin- ing owner, with no intention of leaving them there perma- nently, are personal property; and in a trespass suit by the grantee of such owner for the removal of such rails, the title to land is not in question, and a plea of the general issue is sufficient. 480.
A broker who merely brings the parties together, and has no hand in the negotiations between them, they making their own bargain without his aid or interference, can legally receive compensation from both of them, although each was ignorant of his employment by the other. 318 (3).
REDELIVERY OF MORTGAGED PROPERTY-See CHATTEL MORT- GAGE (2).
RECORDS-See PUBLIC RECORDS.
1. In this case an assignee under an assignment for the bene- fit of creditors, after having taken possession of the assigned stock of goods, and while engaged in inventorying and apprais- ing the same, assumed to surrender the actual possession to the holder of a chattel mortgage on the goods made the day prior to the assignment, and by agreement between them the inventory was to be completed, and, after a portion of the goods had been replevied from him and the mortgagee by creditors, the assignee filed said inventory and appraisal, which included the goods so replevied, and gave the statutory bond for double the appraised value of the assigned property; and the assignee is held to have been properly made a party defendant in the replevin suit, which was discontinued as to the mortgagee, and prosecuted to judgment against the assignee as sole defendant. 602.
2. Chapter 289, How. Stat. (How. Stat. §§ 8372-8374), provid- ing for a special action of replevin in the case of impounded animals, is confined to cases arising under its provisions 648 (2).
See CHATTEL MORTGAGE (2).
RESCINDING CONTRACT-See EXCHANGE OF LAND.
REGISTRATION-See CONSTITUTIONAL LAW (2); ELECTIONS (1).
RIGHT OF WAY-See RAILROAD COMPANIES,
SALARY-See SHERIFF'S FEES (1).
1. The burden of proof is upon the vendee to make it appear that the sale was made in good faith and without any intent to defraud the creditors of the vendor, where such sale is not followed by an actual and continued change of posses- sion, and a refusal to so instruct the jury is error. 221 (1). 2. In replevin by a vendee to recover a stock of goods seized at the suit of the vendor's creditors, the plaintiff relied upon his bill of sale as evidence of his title, the consideration for which he claimed was two chattel mortgages held by him on the property. The creditors claimed that one of the mortgages was given without any valuable consideration, and that the other was increased in amount, all with intent to defraud them, and with the knowledge of the vendee; and it is held a question for the jury, and, if found in favor of the creditors, the fraud tainted the whole transaction, and prevented a recovery by the plaintiff. 222 (2).
3. It is error to instruct the jury, in a suit by a vendee to recover the value of goods from the attaching creditors of his vendor, that the plaintiff had made out a prima facie case by proving the sale to him of the goods, other facts being shown by plaintiff's testimony which might also have weight with the jury in determining the bona fides of the purchase. 337 (4).
SAW-BILL-See LIEN FOR SAW-BILL.
SCHOOL EXAMINER-See ELECTIONS (7).
SERVANTS-See FELLOW-SERVANTS.
1. A suit commenced by declaration, under How. Stat. § 7291, cannot be considered as duly commenced until a copy of the declaration with notice of the rule to plead is personally served upon the defendant. 650 (1).
2. The affidavit of a private person, showing personal service of a declaration as commencement of suit, is open to contra- diction by the defendant, who may show that no such ser- vice was made. Id. (2).
SET-OFF-See CONTRACT (4).
The law approves of settlements and compromises of disputed claims, and, when deliberately made, the parties are bound by them, and the law will not sanction any interference with them, without the consent of the parties, except upon the ground of fraud or mistake. 342 (4).
SHERIFFS AND EX-SHERIFFS.
1. It is the duty of an ex-sheriff who has attached property in his custody, after an execution has been issued in the suit, to expose such property to the sheriff, when requested by him, in order that it may be taken on execution and sold to satisfy the same. 176 (1).
2. If an ex-sheriff has any valid charges as custodian, he should make out his bill of items, and present it to the clerk or other taxing officer for taxation, or, if they are not statutory fees, he should apply to the court for such allowance upon motion, and notice to the parties interested. He has no right arbi- trarily to fix his own price, and retain the property until paid. 177 (2).
3. The right of an ex-sheriff to execute process until the ser- vice upon him of the clerk's certificate required by How. Stat. § 597, showing that his successor has qualified and given the security required by law, exists only as to such process as he has in his hands, and which he is required by How. Stat. § 569, to deliver to his successor upon service of such certifi- cate. Id. (3).
1. The board of supervisors have no power to allow the sheriff an annual salary for services rendered the county, in lieu of all fees. 117 (1).
2. The following propositions are summarized from the opinion of Mr. Justice CAMPBELL:
a-It has been pointed out more than once by the Court that the sheriff must be confined to his statutory fees in all cases where they are fixed by statute. Burk v. Webb, 32 Mich. 173; Clark v. Supervisors, 38 Id. 658; Peck v. Bank, 51 Id. 353. And demanding and receiving more is a misde- meanor. How. Stat. § 9256.
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