License issued without complying with law will be re-
called and canceled. Id....................
5. Section 3, Chap. 50, Comp. Stat., construed; words used
are words of limitation only to the extent of limiting the
discretionary power of the board to grant and issue such
license to cases where neither of the objections named in
the statute are shown to exist. Id...........
1. In maintaining action, sufficient for relator to show that
he is a citizen, and as such interested in the execution of
the laws. State, ex rel. Singleton, v. VanDuyn...............
2. Lies to compel board of canvassers to canvass election
returns as received. State v. Wilson................
Does not lie to compel county board to let the contract
for printing the delinquent tax list to the lowest bidder.
State v. Dixon County.......
Does not lie to compel canvassers of elections to canvass
an illegal and forged return. State v. Kavanaugh............ 506
The evidence in the case examined, and validity of alleged
marriage upheld. Gibson v. Gibson...
1. The lien secured by the provisions of section 2, Chap. 59
of the Laws of 1881, does not depend upon the terms of a
contract or agreement expressed or implied with the owner
of such house, etc., or his agent mentioned in the first sec-
tion of said act. Colpetzer v. Trinity Church.............
....... 113
2. The above named act, Held, Not to be in derogation of
the provisions of the constitution of the United States,
which prohibits the several states from passing "any law
impairing the obligation of contracts," by reason of its
provisions being construed to apply to buildings already
under contract at the time of the taking effect of said act,
so as to give a lien thereon for all labor, skill, and material
furnished therefor after the taking effect of said act. Id.. 113
Misjoinder of causes of action in case stated.
Mortgage. See REAL ESTATE.
1. Where a party claiming a lien is made defendant in ac-
tion to foreclose, and is duly served with process, and fails
to appear, but permits a decree of foreclosure to be taken,
in which his lien is not recognized, he will not be per-
mitted to answer, setting up his lien, after a sale under the
decree, unless he shows sufficient cause for the delay.
Graves v. Fritz.........
2. Where, upon the foreclosure of a senior mortgage, the
holders of junior mortgages not being made parties, a pur-
chaser of the legal title at judicial sale purchases in good
faith, believing he is getting a perfect title, takes possession
of the property and makes lasting and valuable improve-
ments thereon, he is entitled to credit for such improve-
ments in an action instituted against him by the holders
of the junior mortgages to require him to redeem. And
in such case he should not be charged with the rental value
of the premises during his possession. Higginbottom v.
Benson......
3. Land contract designed as a mere security for a debt,
treated as a mortgage. Lipp v. Land Syndicate..............
4. Where sale was had under a void foreclosure and a sher-
iff's deed executed, Held, That the mortgagor in an action
to cancel the deed as a cloud upon his title must offer to do
equity by paying what is equitably due under the decree,
with interest and taxes. Loney v. Courtnay......
5. Where the decree was in part paid by other means, and
the land was purchased by the mortgagee for considerably
less than the amount of the decree, Held, That the mort-
gagor would be required to pay the purchase price, with
interest and taxes. Id.............
6. The fact that the defendants are donees of the mortgage
-they being in fact the owners thereof-will not bar their
rights to recover from the mortgagor what is equitably due,
in an action to redeem. Id.............
Trust created in favor of mortgagor in respect to residue
of property after claim of mortgagee is satisfied. Hamil-
ton v. Lau.............................
2. Mortgagee cannot withdraw original instrument from
office of clerk where filed and proceed to foreclose. Ward
v. Watson
3. Notes accompanying mortgage are evidence of the debt
and times of payment; in case stated, Held, That a provis-
ion inserted in the mortgage without the mortgagor's
knowledge or consent, changing the times of payment from
that stated in the notes, was not binding on him.
Watson.........
4. An absolute tender of the amount due upon a promissory
note secured by chattel mortgage-the tender being made
the day after the debt is due, but kept good-will have the
effect to divest the lien of the mortgage. Knox v. Wil-
liams.......
A second motion based upon substantially the same grounds
as the first, cannot be filed except by leave of court, and
should not be permitted except for sufficient cause.
shiser v. Delone & Co...........
1. To convict of murder in the first degree, evidence must
show that the party accused perpetrated the act purposely;
that he did it with intent to kill; and of deliberate and
premeditated malice. Beers v. State.......
.... 614
2. The words, "deliberate and premeditated malice," in
the statutory definition of murder in the first degree were
intended to restrict murder in that degree to cases where
deliberation was shown to have taken place before the com-
mission of the crime. Id............
3. Murder in second degree; malice implied only in cases
where killing alone is shown; where evidence shows all
the circumstances by the testimony of eye-witnesses, mal-
ice not presumed. Vollmer v. State
4. Self-defense; general rules.
Whether accused is guilty of murder or manslaughter,
Held, Under the evidence, to be a question for the jury to
decide.
Negligence. See RAILROADS.
1. In driving team of horses against barbed wire fence; ex-
istence of such fence no excuse for injury. Floaten v.
2. Question for jury. Orleans Village v. Perry................
Railroad not blocking frogs and switches, not negligence
per se. M. P. R. R. Co. v. Lewis............
Under facts stated, Held, That payees of note were not
bound by the agreement of their agent in taking from the
maker of a note owned by them a note of a third party in
payment thereof. McCormick v. Peters
2. Authority of one partner to give check of firm in pay-
ment of his individual indebtedness, considered. Warren
& Co. v. Martin .........
..........................
3. Under facts stated, Held, That the relationship in which
parties named stood to each other on the note sued upon
was that of payee and security, and not of co-surety.
Stump v. Richardson County Bank..........
The omission of docket entries of established facts from
papers properly before the court may be corrected by nunc
pro tunc orders of the court. State v. Moran..........
Notary public who is clerk of an attorney may administer in
verification of a pleading. Schuyler National Bank v. Bol-
long
Onus probandi. See EVIDENCE.
Parties. See MORTGAGE.
1. In quo warranto. State v. A. & N. R. R. Co..........
2. In action brought by person holding legal title to real
estate, to remove a cloud therefrom and quiet the title, all
persons having an adverse interest may be made defend-
ants. Keens v. Gaslin...........
Parties and privies, as well those who are made parties
by leave and order of court as the original parties, are
bound by the legal proceedings in the case and the judg-
ment. O'Brien v. Gaslin .....................
In action by co-partners against vendor for the proceeds of a
bank check made by one partner, as manager of a firm of
grain dealers, on their bank deposit, for house furniture
for his separate use, Held, That it may be presumed, with-
out allegations to the contrary, that the check was given
on account of the partner's interest from profits in the bus-
iness of the firm. Warren & Co. v. Martin....
Provisions of statute requiring that relatives shall support
paupers, have no reference to support and care of insane
persons confined in insane hospital. Richardson County v.
Frederick
1. Money paid on dormant judgment, Held, Voluntary and
not recoverable back. Gerecke v. Campbell...................... 306
2. In cased stated, of note by the note of a third party. Mc-
Cormick v. Peters.......
1. Motion to strike from files only proper in cases where
there is defect in matters of form required by the statute.
Hershiser v. Delone & Co..........
2. Objections to verification must be made before objections
to matter in the petition itself. ld......
3. Affidavit signed in name of principals, "per agent,"
properly sworn to by agent, Held, Sufficient. Id... 380
Inconsistent counts; motion to strike; character of
action determined by prayer; misjoinder in case stated.
Keens v. Gaslin
5. Setting forth several causes of action; if defendant insist,
should be separately stated and numbered.
tional Bank v. Bollong.......
Action to recover penalty under sections 5197 and 5198,
Rev. Stat. of United States; petition should allege that
the act was "knowingly done." Id..........
1. The title "circuit court," when used in an ordinary
pleading, implies a court of general jurisdiction.
2. Pleadings should conform to the provisions of title seven
of the civil code. Hilton v. Bachman.......
Where second and third counts in petition are in conflict
with the first, the proper motion is to strike out the incon-
sistent matter, or require the plaintiff to elect upon which
cause of action he will proceed. Keens v. Gaslin............. 310
4. In cases of doubt, resort may be had to prayer of petition
to determine the character of the action. Id................... 310
5. Petition setting forth in first count cause of action to
remove cloud from plaintiff's title, and in second count
facts to show the plaintiff's right to an action of eject-
ment, Held, Not bad by reason of misjoinder. Id......... 310
6. Where special damages are properly pleaded a recovery
may be had for the same, although the prayer for relief is
general. Everton v. Esgate...........
7. A party charging fraud and misrepresentation must
plead the facts, and a mere allegation of fraud or misrepre-
sentation is not sufficient. Tepoel v. Saunders County Na-
tional Bank.........
1. In a power given by a wife to her husband were the
words, "it being intended to convey hereby all my right,
title, and interest in and to the above described real es-
tate." Held, That husband had authority to convey the
property of the wife. Benschoter v. Lalk
Where the evident purpose of a power is to enable attor-
ney in fact to control and convey lands obtained after the
execution of such power, it will be so construed. Id....... 251
Presumptions. See EVIDENCE. JURISDICTION.
Principal and Agent. See NEGOTIABLE INSTRUMENTS.
1. A principal must adopt the acts of his agent as a whole
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