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Tertelling, 2 Dill. 341; Orr v. Shraft, 22 Mich. 260; estate, but remained the personal property of A. Ho Lazell v. Lazell, 8 Allen, 575; Mercier v. Chace, 11 id. had the right to sell them to the plaintiff's intestate. 194; Goldman v. Clark, 1 Nev. 607; Ackley v. Cham

Defendant knew that by virtue of the agreement he berlain, 16 Cal. 181; Kelly v. Baker, 10 Minn. 154; had made the buildings remained personal property, Phelps v. Rooney, 9 Wis. 70. Hogan v. Manners. and he is presumed in law to have known that the efOpinion by Brewer, J.

fect of his sale of the laud to K. would be to give him RES ADJUDICATA — WHAT CONSTITUTES. Where

a title to the buildings, and thus deprive the owner of P., who resides in Kansas, commences an action be

all right to them. His sale to K. was the exercise of

dominion over the property inconsistent with the fore a justice of the peace in Kansas against G., who resides in Indiana, and P. also at the same time insti

right of the plaintiff's intestate, who was the owner.

Doliver v. Ela. Opinion by Morton, J. tutes attachment and garnishment proceedings in such

[Decided June, 1880.] action, and P. procures service of summons by publication in a newspaper only, and P. obtains a judge MASTER AND SERVANT — ONE ASSISTING SERVANT ment against G. for the amount claimed, and also AT REQUEST OF MASTER NOT CO-SERVANT-NEGLIobtains an order against the garnisbee, who is a debtor GENCE.-Plaintiff was in the employ of one Winchester of G., requiring him to pay the amount of such judg- as a machinist. Winchester had built an engine which ment, which the garnishee does, and P. accepts such defendant, a teamster, had been employed to take to amount in satisfaction of said judgment, but G. did the railroad station and load it on the car. Plaintiff not at any time owe P. any thing nor did P. at any and another employee of Winchester assisted defendtime have any cause of action against G., and G. did ant's servants in loading the engine on defendant's not in fact have any notice of said suit, or attachment, wagon. Defendant, who was present, told plaintiff or garnishment proceedings until long after they oc- and the others (what was denied by Winchester), that curred, held, that nothing in said action, except the it was a part of his agreement with Winchester that disposal of the money or property obtained by virtue two of the latter's men should be sent to the station to of said attachment and garnishment proceedings, and assist in unloading the engine to the car. Believing the title thereto, is res adjudicata, and that G. may this, plaintiff and one other of Winchester's men went maintain an action against P. for the damages occa- to the station and assisted in unloading, during which sioned by the wrongful obtaining of said money. See plaintiif was injured by the negligence of one of deHoshaw v. Hoshaw, 8 Blackf. (Iud.) 258; Melhop v. fendant's servants, for which he brought action. DeDoane, 31 Iowa, 399-407; Alexander v. Hutchison, 9 fendant set up that at the time of the injury plaintiff Ala. 825; 1 Greenleaf on Ev., § 512; Story on Confi. was his servant, and a co-servant of the one through of Law, $ 549. Starr v. Hinshaw. Opinion by Valeu- whose negligence he injured. Held, that tine, J.

plaintiff was not defendant's servant. A servant cannot recover of his master for an injury caused

by the negligence of fellow-serant, because MASSACHUSETTS SUPREME JUDICIAL when he enters into the service he hy implication COURT ABSTRACT.

agrees that he will take the ordinary risks of the

service, including the risk of the negligence of CONVERSION - OF BUILDINGS BELONGING TO

fellow-servants. But the plaintiff did not enter into


the service of the defendant. There was no contract SONAL PROPERTY. – A., in possession of lands belong

of service between them. The plaintiff could not reing to defendant, with an agreement for a deed,

cover any wages of the defendant. He was in the sererected buildings thereon under a verbal agreement

vice of Winchester, and believed and understood that that the buildings were not to become the property of

he was doing the work of Winchester. He was indefendant. Thereafter A., while in possession by bill

duced to assist the defendant by his false representaof sale, under seal conveyed the buildings to plaintiff's

tions, but the defendant cannot thus impose upon him intestate. Subsequent to this defendant, by request of

the incidental and implied obligations of a coutract of A., conveyed the lands to K. with warranty, A. at the

service into which he has not entered. Kelly v. Johnsame time gave up the agreement for the deed and a

Opinion by Morton, J. release of the lands with the privileges and appurte

[Decided April, 1880.] nances belonging. Neither defendant nor K. knew of the conveyance to plaintiff's intestate. The deed to

CRIMINAL LAW. K. made no mention of the buildings, but conveyed by metes and bounds with the privileges and appur

EVIDENCE- CONVERSATIONS ACCOMPANYING ACTS tenances. Held, that defendant was liable to plaintiff PROVED ADMISSIBLE.-Where acts and transactions in for the conversion of the buildings. If a man puts a which the accused person took part previous to a murhouse or other building upon land of another, under der were given in evidence by the prosecution, held, an agreement with the owner of the land that he may that the exclusion of conversations accompanying such remove it, the building becomes his personal property. acts and transactions offered to be shown by the deHe may lose his right to it if the land is sold to an in- fense was erroneous. If the acts of the accused done nocent purchaser without notice of the agreement. before the commission of the crime with which she is He cannot set up his title against such innocent pur- charged are competent evidence tending to show that chaser whom he has misled by permitting the building she committed such crime, then what was said at the to be attached to and apparently a part of the realty time the act was done is also admissible, as explanabought by him. But as against the original owner of tory of the same, and as indicative of the intent or the land and all persons taking under him with notice, object of the act. The reason for this rule is very the building never becomes a part of the realty, but forcibly stated in Wiggins v. Plumer, 11 Fost. (N. H.) remains personal property, and he or a purchaser from 251-267: “When evidence of an act done by a party is him may maintain replevin or trover to recover it, or admissible, his declarations made at the time having a its value, even while it remains npon the land and ap- tendency to elucidate or give character to the act, aud parently a part of the realty. Hunt v. Bay State Iron which may derive a great degree of credit from the act Co., 97 Mass. 279; Brooks y. Prescott, 114 id. 392; itself, are also admissible as part of the res gesta." And Hartwell v. Kelly, 117 id. 235. In this case by virtue the rule is substantially stated in the same way in Gorof the agreement between A. and the defendant, the don v. Shurtliff, 8 N. H.260; Plumer v. French, 2 Fost. buildings never becaine a part of the defendant's real 454; and Hersom v. Henderson, 3 id. 498. “When a



fact is offered in evidence, the whole transaction of it hand, and addresses them: “Look upon the prisoner,
consists of many particulars, which may and ought to you that are sworn; how say you, is he guilty of the
be proved. Every additional circumstance proved felony (or treason, etc.), whereof he stands indicted,
may vary the effect of the evidence — may neutralize it or not guilty?' The foreman then answers 'guilty,' or
or give it point. What is then said by the parties, and not guilty,' according to the conclusion to which the
what was said by others to them, relative to the sub- jury have arrived in their consultations. The officer
ject of the transaction, is a part of the transaction then writes the word "guilty,' or 'not guilty,' as the
itself. It is admissible on the same principle that every verdict is, after the words “pro se' on the record, and
other part of it is, that the whole matter may be seen again addresses the jury: 'Hearken to your verdict,
by the jury — upon the same principle which disallows as the court hath recorded it: You say that A B is
extracts or written papers, that their effects may be guilty (or not guilty) of the felony whereof he stands
materially varied by the part omitted. Contemporau- indicted, and so say you all.' ” 1 Chitty on Crim. Law,
eous but otherwise unconnected conversation is re- 635-6; 1 Bishop on Crim Pro., $ 1001. Nebraska Sup.
jected on the same ground as other unconnected facts. Ct., Feb. 10, 1880. Longfellow v. State of Nebraska.
If the statement offered in evidence does not tend to Opinion by Maxwell, C. J.
elucidate or give character to the acts proved, it is to
be rejected. If it is upon the same subject and relative

to the act in proof, it should be received." The case
of Wiggins v. Plumer, supru, was referred to by the BANK - LIABILITY FOR MISTAKE-PROTESTING NE-
late learned Justice Paine in Ranger v. Goodrich, 17

INSTRUMENT FOR CUSTOMER - CUSTOM Wis. 78-85, and approved as stating the true rule in

CURRENT FUNDS – GRACE. — A certificate of deposit, cases of this kind. The same rule is stated in Lund y.

payable to order one year after date, “in current Tyugsborough, 9 Cush. 36-41. This court, in the case

funds,” was placed in the hands of a bank at D. for of Bates v. Ableman, 13 Wis. 644-650, admits the jus- collection. It was issued by a banker at D. It was tice of the rule as stated in the latter part of the above

protested on the day it was due, without grace. By quotation in the following language: “It is undoubt

a custom among bankers, “current funds” meant edly true that where the intent of a party to a sale is in

money, and by a custom among the banks of D., in issue, his statements at the time, and so connected relation to certificates of deposit issued by any bank with the transaction as to be a part of the res gestæ, are

there, they were payable without grace. Held, that competent evidence to show such intent, even though the certificate being payable in money, the indorser the person is not a party to the suit." In the case of

was discharged by a failure to present, etc., with grace, Sorenson v. Dundas, 42 Wis. 642, the rule is stated very but that the bank was not guilty of negligence in its briefly : “Declarations are verbal parts of the res gestæ action so as to make it liable to the owner of the ceronly when they are contemporaneous.” Felt v. Ami

tificate for any loss resulting from such discharge. don, 43 Wis. 467. In Hamilton v. State, 36 Ind. 280, it is

The certificate on its face was not negotiable, and the said: “It is well established by the authorities that in

demand and protest was well made on the day it was, all cases, civil or criminal, where evidence of an act but for the custom that "current funds" meant money done by a party is admissible, his declarations made at

or National bank notes, and because of this it became the time, having a tendency to elucidate, explain, or

a negotiable instrument, entitled to grace. The fact give character to the act, are admissible. They are a

of negotiability was therefore a mixed question of part of the transaction, and for that reason are admis- law and fact. Admitting the bank was bound to know sible, and it makes no difference, so far as the admissi

the law, this is not true as to the matter of fact. If it bility of the declaration is concerned, whether it be in

was the duty of the bank to make inquiry, such infavor of or against the party making it. If the act was

quiry being made, it would have been developed that one of alleged criminality, and the accompanying dec- current funds meant legal tenders and National bank laration tends to show it to be innocent, it is equally notes. Regarding the certificate as being payable in admissible as when the tendency is to show the crim- National bank notes, the bank must determine at its inality of the act; and it may be given in evidence by peril whether it was negotiable. This being determined the defendant as well as by the State." See, also, Par

in the affirmative, inquiry would have shown another sons v. State, 43 Ga. 197; Comfort v. Heople, 5 Ill. 404; custom to the effect that the certificate was payaHead v. State, 44 Miss. 731 ; McKee v. People, 36 N. Y. ble without grace.

The bank must then determine 113; Russell v. Frisbie, 19 Conn. 216. Wisconsin Sup. which of these customs it would follow. Suppose (t., Feb. 3, 1880. Mack v. State of Wisconsin. Opinion

it adopts the latter, and upon the trial the jury should by Taylor, J.

find, according to the weight of evidence, no such cusTRIAL-PRIVY VERDICT NOT ALLOWABLE. — Upon

tom existed, would it follow that the bank was guilty a trial for selony the verdict of the jury was received

of negligence? It would not, because the true quesby the judge about eleven o'clock at night, after the

tion is not as to whether it was true in fact as to such court had duly adjourned until another day and the

custom, but whether the bank had good reason to so jury were discharged. The statute of Nebraska, where

believe, and acted in good faith, upon such belief, as a the trial took place, provides that “when the jury

careful and prudent person engaged in the same busihave agreed upon their verdict they must be conducted

ness would ordinarily have done. Iowa Supreme Ct., into court by the officer having them in charge. Be

April 26, 1880. Haddock v. Citizens' National Bank of fore the verdict is accepted, the jury may be polled at

Des Moines. Opinion by Seevers, J. the request of either the prosecuting attorney or the ULTRA VIRES - SAVINGS BANK MAY BORROW MONEY defendant.Held, that the verdict was a privy one AND MORTGAGE SECURITIES-ESTOPPEL BY LAW DOES and erroneous. A verdict to be of any validity must NOT BIND PUBLIC. - A savings bank, by its charter, be delivered in open court. This was the rule of com- had express power to receive money on deposit; to mon law. Chitty says: “When the jury have come to receive and execute trusts committed to the corporaan unanimous determination with respect to their ver- tion by any person or persons, or by order of any court dict they return to the box to deliver it. The clerk in this State; to grant and purchase annuities; to then calls them over by their names, and asks them issue letters of credit and other commercial obligawhether they agree on their verdict, to which they re- tions, other than notes designed to circulate as money; ply in the affirmative. He then demands who shall to loan money; to receive money on deposit and pay say for them, to which they answer their foreman. interest therefor; to discount according to bank usage; This being done, he desires the prisoner to hold up his to take stock in other corporations; to buy and sell

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trust; that the contract was made ultra vires. Plant- THIS volume, published by F. H. Thomas & Com

exchange, bills, notes, bonds, and other securities; to dissolved by the Scotch courts. Prob. Div. and Adm. have and hold coin and bullion; to take and hold real | Div., April 23, 1880. Harvey v. Farnie. Opinion by estate as security for and in payment of loans and Haunen, Prest., 42 L. T. Rep. (N. S.) 482. debts due or to become due to the corporation; to pur

MARITIME LAW - CHARTER OF MORTGAGED SHIP. chase and hold real and personal property at any sale

Where the owner of a ship, which is mortgaged, charto enforce its securities or debts due; to hold said

ters her before the mortgagey takes possession, the property, and sell and convey the same; and to purchase and hold such real and personal estate as may be

mortgagee cannot interfere to prevent the execution convenient for the transaction of its business. Special impair the value of his security, and if the vessel be

of the charter-party unless it will materially injure or power was also given to receive deposits from married

arrested in an action of mortgage by the mortgagee, women and minors, and to issue therefor certificates

the court will release her on the application of the payable in their names, and payable to their order

charterer, unless such injury is shown by the mortonly; and to pay and receive any rate of interest, not exceeding 10 per cent, and to make special regulations Fanchon. Opinion by Sir R. Phillimore, 42 L. T. Rep.

gagee. Prob. Div. and Adm. Div., April 21, 1880. The in regard to trust funds, deposits or savings. Held, that it had in addition the implied power to borrow

(N. S.) 483, money and to execute a deed of trust of securities held

NEW BOOKS AND NEW EDITIONS. by it to secure such loan, and further, where the loan was used for the benefit of the bank, it could not set

VII TEXAS COURT OF APPEALS REPORTS. up as a defense to certificates secured by such deed of

HIS v.

pany N. Y. 52; McIntire v. Preston, 10 Ill. 48. Accord-term, 1879, and the early part of Galveston term, 1880. ingly, when the bank, by deed of trust, conveyed to a The court, it will be recollected, is exclusively of trustee certain securities owned by it, and created an criminal jurisdiction. This volume contains no decis“investment department,” and issued certain instru- ions of remarkable general interest, but the cases are ments styled “investment securities," for the respect- intelligently decided and well reported. There are ive amounts of money received from those accepting twenty-six murder cases in the volume. A few gleams them, such instruments being described as secured by of the grim humor which usually enlivens the series the deed of trust, held, that the transaction was valid

are noticeable. In Moore v. State, p. 14, an indictment and the deed of trust enforceable in behalf of the for murderous assault, the court thus concluded : “Our security holders, against the property described in and sympathies have been enlisted on behalf of this young conveyed by it, and the defense of ultra vires could man. We find him, in company with his father, in a not be set up by the bank or its receiver in insolvency. bowling-alley, where at least some of the parties were Darst v. Gale, 83 Ill. 141; Ex parte Clapperdale, D. G. rolling ten-pins for and drinking medicated blackberry M. & G. 19; Bradley v. Ballard, 55 Ill. 413; West v. brandy, and which is the introduction of the parties Menard Co. Ag'l Bd., 82 id. 206; Maher v. Chicago, 38 by one of the witnesses, and we are impressed with the id. 266; Railway Co. v. McCarthy, 96 U. S. 267; San belief that he has probably fared badly more on acAntonio v. Mebaffy, id. 315; Hitchcock v. Galveston, count of the bad company he was in than from any id. 351; Morris R. Co. v. R. Co., 20 N. J. Eq. 542; innate vice of his own; and it may be, that like one of Whitney Arms Co. v. Barlow, 63 N. Y. 62. Held, also, old, the son's teeth were set on edge on account of the that a violation of the by-laws of the bank in issuing father having eaten sour grapes.” But the young man such securities would not be available against a secu- was convicted, all the same. Haines v. Stute, p. 30, rity holder. As a rule, the by-laws of a corporation

was an indictment for keeping open a saloon and treatare binding only on its members and officers. Illinois ing a crowd to drinks on election day. The defense Supreme Ct., May 18, 1880. Ward v. Johnson. Opin- was that he had a right to keep the same open for the ion by Schofield, J.; Scott, J., dissented.

sale of his other goods, wares and merchandise, con

sisting of sardines, oysters, salmon, pickles, canned RECENT ENGLISH DECISIONS.

fruits, flour, vinegar, cigars, etc. The court observed: “There might be some plausibility in tho position if

the evidence had left us in doubt as to his motives and BOUNDARY – ALONG HIGHWAY. - The presumption purposes in opening the doors. This it does not do. of law that the property in the soil of a road belongs His object was, not to sell those other goods,' but to usque ad medium filum viæ to the adjoining proprie-treat the crowd.' The crowd, or those of it who tors, and consequently that a conveyance of an estate responded, for aught that appears, with promptness, to bounded by a road passes the land up to the middle of

the invitation, were not misled as to his meaning. It such road, does not arise until the road has been dedi

is evident that the first State's witness, Quitman Ancated to the public by being used as a highway. De- derson, who was one of the party invited, did not get cision of Exchequer Division (Kelly, C. B., and Cleasby, any oysters, sardines, pickles, fruits,' etc.; for he B.), affirmed. Ct. of Appeal, Dec. 11, 1879. Leigh v.

expressly says, “I don't remember seeing any such Jack. Opinions by Cockburn, C. J., and Bramwell and things in his house; there was a crowd in the house, Cotton, L. JJ. 42 L. T. Rep. (N. S.) 463.

and as soon as I got a drink I came out.'” In Ned CONFLICT OF LAW – DIVORCE – DOMICILE. — A domi- Curry v. State, p. 91, an indictment of “guily as ciled Scotchman married an English woman in Eng- charged in the indictment” was held good. The court land. After the marriage he retained his Scotch distinguished Taylor v. State, 5 Tex. Ct. App. 521, domicile, and continued to reside in that country with where the verdict was simply "guity.” In McCoy v. his wife for about two years, when she obtained a State, p. 379, an assessment of punishment by the jury, divorce from him before the Scotch Court of Session, “a five years in the State prisin," was held good. In on the ground of bis adultery only. Subsequently he McMillan v. State, p. 100, this verdict was held good : came to reside in England, where he inarried for the “We, the jury, find the defendend guilty, and assess his second time. The second wife now sought to have her punishment at five years' confindendment in the State marriage declared null and void, on the ground that penitentiatry.” In Irvin v. State, p. 109, a hog-killing the Scotch divorce was inoperative, at any rate in case, a witness testified to finding the hog in the folEngland and that therefore the respondent had a wife lowing condition: “I put my foot on him, and he did living at the time of such marriage. Held, that the not say any thing for he was speechless." In Lanham marriage was a Scotch marriage, and, as such, properly I v. State, p. 126, a murder case, it was proved that the defendant, an actor, had brandished a pistol and Jones, p. 265. — An action lies in Rhode Island for threatened to give the deceased a “malineé.” In Allen breach of contract of sale of goods, the contract being v. State, p. 293, the reporter says: “An eloquent and made there and valid there, but the goods to be delivered erudite argument was filed for the appellant, by some in New York, where the contract was invalid by the one whose modesty deterred him from appending his statute of frauds. Carpenter v. McLaughlin, p. 270. — name thereto." That argument prevailed. For sober One who as surety and before utterance indorses a consideration we recommend Walker v. State, p. 245, a note payable to another is liable to the payee as a joint murder case, where the examining magistrate had com- maker, although the payee knew him to be a surety. pelled the prisoner to make his footprints in an ash Shurtleff v. Millard, p. 272. — A minor may recover heap, in order that they might be compared with tracks money voluntarily paid by him on a contract which he found at the scene of the crime. This was held regu- has repudiated, and from which he derived no benefit. lar, citing State v. Graham, 74 N. C. 646; S. C., 21 Am. Ordway v. Remington, p. 319. — Under a lease for years Rep. 493, and distinguishing Stokes v. State, 5 Baxt. from a specified day, rent conditioned to be payable 619; S. C., 30 Am. Rep. 72. (But see State v. Sanders, quarterly on certain days is not due until after mid68 Mo. 202; S. C., 30 Am. Rep. 782, where the jury, at night of such days. Austin v. Coggeshall, p. 329. — A the suggestion of the prisoner's counsel, made an ex- city is not liable for the expense of a public entertainperiment out of court with worn-out boots like the ment given to strangers upon the resolution of the prisoner's, and the conviction was set aside.) In common council. Providence Steam Engine Co, v. Wright v. State, p. 574, the principal State's witness Providence, etc., Steamship Co., p. 348. - A riparian claimed to have acquired his knowledge of the offense owner platted his land into streets, lots, and squares, in the character of a detective and feigned accomplice. one of such streets being below high-water mark; the The question of his real guilt was left to the jury. street was subsequently filled out, but was subse

quently closed by the owner of all the adjoining lots; XII RHODE ISLAND REPORTS.

held, that he could be compelled to reopen it by the

owner of some of the other lots. Lee v. Union RailThis volume, published by Houghton, Osgood & Co. road Co., p. 383. — A was injured by a horse driven by of Boston, contains decisions down to March, 1880. | B, on a highway, and frightened by the overturn of a In the old fable, the rabbit took pride to herself as sleigh by a heap of snow aud ice wrongfully made on against the lioness, for producing so many young at a the highway by C; held, that A could maintain an birth, whereas the lioness brought forth but one. action against C therefor. Buldwin v. Barney, p. 392. Unum sed leonem, responded the lioness. So the - A, carefully driving on Sunday on a highway in Rhode Island court, although not prolific, never puts Massachusetts, was injured by the reckless driving of forth a volume that is not full of interest. Her court B; held, that A could maintain an action therefor is one of the ablest, and her reporter, Mr. Arnold against B. Glavin v. Rhode Island Hospital, p. 411. Green, is one of the very best. Of the contents of the One who sustains injury at a public hospital from present volume we have already called particular atten- unskillful surgical treatment by an unpaid attending tion to a considerable portion, and now will simply surgeon, may maintain an action against the hospital note the following important decisions inclusive of therefor, although the hospital is a public charity, and those to which we have alluded: Williams v. Winsor, the plaintiff paid nothing but a small amount for board p. 9. — A mortgage of property subsequently to be and attendance. Cassidy v. Angell, 'p. 447. – Where acquired is valid in equity. Saint Joseph's Church v. one was found fatally injured in an excavation in a Assessors of Taxes, p. 19. — The residence of a priest highway, and there was no proof of the circumstances or clergyman is not exempt from taxation as a “build- of his death, the jury may consider his habits as to ing for religious worship,'' because it contains one temperance and caution, and his acquaintance with room set apart as a religious chapel. Wakefield v. the locality, upon the question whether he had used Newell, p. 75. — A municipal corporation is not liable reasonable care. McKim v. McKim, p. 462. — In case for allowing ordinary surface water to escape from a of separation of husband and wife, equally fit, by highway on to adjacent land, nor for the results of character and circumstances, to have the custody of such ordinary changes of grade as must be presumed children, the custody of a delicate female child of four to have been contemplated and paid for on laying out years of age will be awarded to the mother for tho the highway. Elliott v. Gower, p. 79. — A married time being. Peck v. Peck, p. 485. — Betrothal, followed woman buay charge her separate equitable estate ex- by cohabitation, but without a present agreement to pressly in writing, or orally when the contract is for become husband and wife, does not constitute a valid the benefit of herself or the estate. King Philip Mills marriage. Hatch v. Tucker, p. 501. — The consignee v. Slater, p. 82. — The plaintiff having failed in the first and receiver of a cargo is liable for the freight, although deliveries of goods which he contracted to manufac- the master, owing to a dispute with the person who ture and deliver, in successive lots, cannot compel the loaded the vessel about the price of trimming the acceptance of goods subsequently manufactured and cargo, sailed without signing the bill of lading; and offered. Kelley v. Silver Spring Co., p. 112. — An adult he cannot deduct that price from the freight. Fallon employee, injured by imperfect and unfenced machin- v. O'Brien, p 518. – One whose horse escaped from an ery, cannot maintain an action against his employer inclosure, and strayed on a highway, without negliwhere he himself was familiar with the machinery and gence on the part of the owner in suffering the escape had long worked with it without complaiut. Butcher or in recapturing the horse, and injured a person on v. Providence Gas Co., p. 149. -- Plants in plaintiff's the highway, is not liable for such injury. Carpenter greenhouse were injured by the escape of gas from the v. Carpenter, p. 544. — A testator having directed his defendant's mains, laid in a city street, through a city executors to invest $5,000 in their names as executors, sewer, owing to the negligence of the city in building for the benefit of his grandson, the executors in their the sewer; held, that defendant was liable. Bennett v. books charged themselves as trustees and credited the Lovell, p. 166. — The plaintiff sustained injury through grandson with that sum, invested it in government the fright of his horse, on a highway, by tubing and and State bonds, and deposited them in a bank vault, machinery left by defendant on the highway; held, in a tin box, in an envelope labelled, “investment of that defendant was liable. Goodell v. Fairbrother, p. $5,000 for" the grandson, with the date of purchase; 233. – One who hires a piano, with an agreement that the vault was robbed and the bonds were lost; the when and not until the rent amounts to a specified sum executors, giving indemnity, procured new bonds in the piano shall become his property, has no attachable their place, through an agent, whom they had reason interest before the payment of the full sum. Hunt v. to suppose honest, but who appropriated the bonds, so that some of the amount was lost; held, (1) that the demand of the plaintiff; subsequently but before matrust was duly constituted; (2) that the executors were turity the maker paid it to the payee, not knowing of not liable for the robbery or the misappropriation. the transfer, and took a receipt; heid, that the note Horton v. Champlin, p. 550. — An attorney's lien on a was not thereby discharged. Smith v. Gore, p. 488.judgment does not authorize him to bring a suit The proceeds of the sale of a homestead are not exempt thereon in his client's name without his authority. from execution, unless the vendor has at the time of The volume is an elegant specimen of law book pub- sale the intention of investing them in another homelishing.

stead. Comstock v. Adams, p. 513.— The annulling of

a decree of divorce replaces the parties in the state in XXIII KANSAS REPORTS.

which they were before the divorce, without regard to This volume contains cases decided at July term, a subsequent marriage and the birth of children; au 1879, and all the cases decided at January term, 1880. agreement between the parties to the contrary is of no The volume is well executed in every respect, Mr. A. effect; and where the divorce was granted by the M. F. Randolph being the reporter, and George W. court of another State, it will be presumed that the Martin, Topeka, the publisher. The cases are of con- annulling of the decree by the same court is regular siderable interest. We bave marked the following: and valid. Lapere v. Luckey, p. 534.- The doctrine Thomas v. Wordman, p. 217.- An action of nuisance of ancient lights does not prevail in Kansas. Hogan by the diversion and damming of water cannot be v. Manners, p. 551.– A homestead may be acquired in maintained, where the complainant has delayed pro- a building erected on leased land, and although one or ceeding for two years after acquiring knowledge of the two rooms are used for business purposes. Central injury, and the dam meanwhile has been twice rebuilt. Branch, etc., Railroad Co. v. Twine, p. 585.-Although State v. Thompson, p. 338. - On a criminal trial the ex- a railroad company is licensed to occupy a street or istence of a corporation may be proved by general alley with its track, yet if in so doing it changes the reputation. Central Branch, etc., Railroad Co. y. grade, or otherwise obstructs access to lots by its track, Henigh, p. 347. — A boy, four or five years old, unac- or by leaving cars unnecessarily standing on the track, companied, climbed upon a railroad car, standing the lot-owner may inaintain an action for damages, alone on a switch-track on a slightly descending grade, and the measure of damages where the obstruction is with brakes fastened, unfastened the brakes, and thus fluctuating, as by leaving cars on the track, is the instarted the car, and then jumping or falling off, was jury prior to the commencement of the suit, but where run over by the car and killed; held that there was no the injury is permanent, as by the change of grade or liability on the part of the railway company. Horder the manner of laying the track, the lot owner may rev. Horder, p. 391.— A voluntary deed from husband to

cover the consequent depreciation in the value of his wife is valid as against the husband's adult heir, not lot; and in such cases a recovery implies a conclusive dependent on him for support. Morris v. Kennedy, p. consent to such occupation. Piazzek v. White, p. 621.408.- A debtor gave his creditor the check of a third Where several own cereal grain, of the same kind and party, payable to bearer aud not indorsed, which the

value, mingled together by their consent or by reason creditor kept twenty-six days before presenting it; on of circumstances reasonably to be foreseen, each may presentation it was not paid, owing to the suspension maintain replevin for his just proportion. State v. of the bank; the drawer had no funds in the bank at Lautz, p. 728,- Where an officer in charge of a jury, in the time of drawing the check, but the president testi- a case of burglary, by their request but without aufied that it would have been paid if presented before thority of the court, furnishes them with an atlas, suspension; the check was not received by the creditor

which they examine in their deliberations, their verin payment; and being dishonored was returned to dict of conviction is void. the debtor and by him to the drawer, who promised to pay the amount to the debtor; held, that the debt was

NOTES. not discharged. Graffenstein v. Epstein, p. 443.- A false and fraudulent representation of the market HE price of wool, made by the vendor to induce a sale and our Legislature, failed to become laws by reason relied on by the vendee, will not avoid the contract, of the withholding of executive approval: Amending where the vendor had no special facilities for ascertain- act to revise the charter of the city of Buffalo; relaing the market price and there were no special circum- tive to water supply of Deer river, Lewis county; for stances making it his duty to communicate his knowl- | the construction of a canal bridge at Tonawanda; edge. State ex rel. Mitchell v. Stevens, p. 456. —A man- amending act relative to the Society for the Protection damus will not issue to compel a canvassing board to of Destitute Roman Catholic Children; revision and canvass election returns and declare the result, where consolidation of poor laws; relative to the admission the returns to the board showed that there were 2,947 of persons, not paupers, into asylums; providing for votes cast, and there were in fact only 800 legal voters verification of pleadings in justices' court; relative to in the county. Kelly v. Caplice, p. 474.–Plaintiff and incorporation of Red House Driving Park Agricultural her husband, in consideration of the satisfaction of a Society; for incorporation of National Guard Mutual demaud of $600 against the husband, and the payment | Relief Association ; for incorporation of the Governor's to them of $275, absolutely assigned to A and B a pol-Guard; to incorporate the Rochester Electro-Medical icy in favor of the defendant on her husband's life; | Institute; to change the name of the Elmira Female A paid the subsequent premiums until maturity, when College; amendatory of act conferring further powers the amount due was $1,477.73; the insurers refused to upon boards of supervisors; amending act relating to pay it without the defendant's receipt on the back of the care and custody of the insane; fixing the amount the policy; the defendant refused to sign her name to be paid on a policy of insurance; relative to taking without receiving $477.73 when the policy was col- fish from Wallkill river; for the im ovement of cerlected; accordingly A executed a written agreement tain rivers and to facilitate the running of logs down to pay her that sum on the paymeut of the policy; she the same; incorporating the Knights of the Maccabees sigued her name, and A and B received the full of the World; amending section 2, title 1 of chapter 13 amount; in an action against them on the agreement, of Revised Statutes defining land; for the relief of held, that it was unconscionable, and not enforceable Theodore P. Ballou; relative to sale of property for beyond an amount fairly due for her service and in- unpaid taxes in Steuben county; amending Revised convenience in writing her name. Best v. Crall, p. Statutes relative to officers chosen at certain elections ; 142.-- The payee of a note indorsed and delivered it, exempting certain counties from chapter 733 of the before maturity, to a bank, as collateral security for a Laws of 1872; authorizing the county clerk of Rich

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