« AnteriorContinuar »
contract was proved for a private way over the intention of the parties, and of giving force and strip of land in dispute as alleged in the bill, yet effect thereto. Furthermore, the fact that there as the point was distinctly raised by the plead- is a repugnancy in the deed under consideration, ings, fully argued by counsel, and thus deliberate- between the language first used and that which ly passed upon by the court, we think the con- follows, does not necessarily compel the court to struction put upon the deed must be held to be accept the prima facie construction of the former res judicata. The dismissal of the bill, also, with- to the exclusion of the latter, so long, at least, as out reforming the deed as prayed, shows that the it is possible either by careful study of the whole court must have found that it did not need refor- instrument, together with what is made a part mation.
thereof by reference, or by the aid of extrinsic In Alexander v. Worthington, 5 Md. 471-489, evidence, to ascertain the true intention of the the court says: “All that is required to establish parties thereto. the authority of any decision is that the very point The rule laid down by this court for the condecided was actually before the mind of the court struction of deeds in Almy v. Daniels, supra, and and was investigated with care and considered in
Waterman v. Andrews, 14 R. I. 589, is in accord its fullest extent."
with the current of authorities of the present When a question is presented by a bill in equity, day, and well adapted, in our judgment, to secure urged and relied upon in the argument, and the ends of justice. passed upon by the court in the opinion, it can
The only remaining question to be settled is, not with reason be said that the point was not in
whether, under the evidence, the plaintiffs are volved, and the opinion of the court on the ques
clearly entitled to an account. tion is obiter dictum.
The evidence shows that the defendant, who People v. Wabash, etc. R. R. Co., 104 III. 476,
was the owner of twenty twenty-sevenths of the 488. See also Wells, Res Adjudicata, 8 5582; Cen
strip in question, erected a building on 20 feet of tral Land Co. v. City of Providence, Index to R.
the west part tbereof in 1875, against the objection I. Reports, X. 76 (1 New Eng. Rep. 873); 2
of the plaintiffs' testator, and ever since has had Smith, Lead. Cas. 7 Am. ed. 648; Aurora City v.
the exclusive use thereof; that there was a sideWest, 7 Wall. 82 (74 U. S. bk. 19, L. ed. 42); Per
walk next to said building 292 feet wide, which kins v. Walker, 19 Vt. 144.
the defendant generally occupied for the storing Whether the evidence admitted as aforesaid, to
of oil-casks and other merchandise; that there explain the deed, against the defendant's objec- was also a sidewalk next to the plaintiffs' block, tion as to its competency for that purpose, was opposite, 4 feet wide, on which the tenants of the the basis upon which the justice presiding at said plaintiffs stored oil-casks, molasses and other trial made his ruling as to the construction there- merchandise, and that the defendant never used of, or whether it was upon the ground of the for- said last mentioned sidewalk for the purposes of mer decision, is not apparent from the record. storage or in any other way, although never deNor is it material; for, even admitting that the nied the use thereof; and that the gangway beevidence offered was the basis of the ruling, still tween said buildings was used about as much by there is no occasion for defendant to complain the defendant as by the plaintiff and his tenants. thereof, as he has suffered no possible harm there- Also that said Humphrey Almy deemed it very by. We think it would have been the duty of the important to the value of his propery that said court to rule as it did, without this evidence, upon strip of land should be kept open of the width of being informed of the former case.
40 feet, as he had arranged offices, constructed a complained of, therefore, was correct, irrespective stairway, and made improvements in bis block of the ground upon which it was put.
which he would not have made had he not exWe have also carefully examined and considered pected that said lot would have been so kept the evidence offered as bearing upon the construc- open.' tion of said deed, and are of the opinion that it The defendant offered to show, by the testifully supports the decision arrived at in Almy v. mony of wholesale grocers who were acquainted Daniels, ante.
with the use made of the premises by Almy's tenIt frequently happens that, either by reason of ants, that he did in fact have the use and benefit some ambiguity in the language of a grant, or by of fully seven twerty-sevenths of said strip of the surroundings and appellations of the subject- land; the defendant contending that it was a matter thereof, it is not entirely clear what was question of fact for the jury, whether, notwithintended to be included therein. And in order to standing the exclusive use and occupation by him aid in the construction of deeds containing such of the part covered by his building, the plaintiffs infirmities, the law wisely permits the introduc- did not still have all the use they were legally ention of parol evidence. Neither is this any in- titled to. This evidence was ruled out by the fringement of the well known rule contended for court, and the defendant duly excepted thereto. by the defendant, that parol evidence is not admis- It was also in proof on the part of the plaintiffs, sible to contradict or vary the terms of a written that the defendant never paid any rent for the use agreement. On the contrary, it is for the express of the 20-foot strip, covered by his building, from purpose of ascertaining precisely what was the the time he erected the same to the death of Hum
1. AGENCY.-Appropriation of Benefits by Principal
- Repudiation- Ratification.-It is incompetent for a principal to appropriate the avails of an egency, and afterwards deny and repudiate the fact of such agency. Such an appropriation by the principal amounts to a complete ratification of wbat has been done by the unauthorized agent. Gundelupe, etc. Co. v. Beatty, s. C. Tenn., June 5, 1886; 1 S. W. Rep., 348.
phrey Almy, June 24, 1883, and that demand for rent was made by the plaintiffs Sept. 5, 1885.
The evidence further showed that no objection had ever been made by the defendant to the use made of the premises by the plaintiffs' testator or his tenants; nor had the defendant's use of the sidewalk and gangway ever been objected to by the plaintiffs' testator.
The facts then, in short, are these: The parties are tenants in common of the strip of land in question, the plaintiffs owning seven twenty-sevenths, and the defendant twenty twenty-sevents thereof. The defendant has absolutely excluded the plaintiffs' testator and the plaintiffs, against their objection, from all use and benefit of one-half part thereof since 1875, and the remainder is and has been occupied by both parties as tenants in common. Are the plaintiffs, under this state of facts, clearly entitled to an account? We think they are. The right of action here employed is given as between tenants in common: “Whenever one or more of the owners of such common property shall take, receive, use or have the benefit thereof, in greater proportion than bis or their interests therein." And it can hardly be claimed that the defendant, by absolutely ousting his cotenant from all use and benefit whatsoever of one separate half of the common property, did not "take, receive, use or have benetit” of that part at least, “in greater proportion than his interest therein." And we think it quite immaterial, whether or not, in point of fact, the plaintiffs' testator did subsequently receive more than his share of the use and benefits of the remainder of said common property as is claimed by the defendant, or whether, in fact, he did receive what would, in he judgment of others, be equal ip value to the use of his share of the whole. He had an undoubted right to the use of the eztire strip, in common with the defendant, and the latter could not assume the right simply because of bis larger ownership therein, to make partition thereof, and thereby exclude his cotenant from any particular part.
Having excluded him from all use and benefit of one-half of the common property, and having erected thereon a permanent building, of which the defendant has had the sole and exelusive use and benefit for a number of years, we think that, as matter of law, and irrespective of what was shown in evidence, or could have been shown under the offer of proof made by the defendant as to the manner in wbich the remainder of the common property bad been used by the cotenients, the plaintiffs are clearly entitled to an account. The court very properly ruled the evidence inadmissible. See Izard v. Bodine, 11 N. J. Eq. 403; Hayden v. Merrill, 44 Vt. 336; Knowles v. Harris, 5 R. I. 402.
2. ASSIGNMENT FOR BENEFIT OF CREDITORS.
Fraud.— The grantee in an assignment for the benefit of creditors is not a bona fide purchaser for a good consideration. Therefore, if the deed is in fact made by the grantor with intent to hin. der, delay and defraud his creditors, it is null and void, whether the grantee had or bad not notice of such intent. When the deed is fair upon its lace and dedicates all the grantor's property to the pay. ment of all his creditors, the motive by which he is governed in making the assignment is immaterial. · Farrell 0. Farnan, Maryland Ct. App., June 24, 1886; 6 East. R., 579.
3. ATTACHMENT.-Covenant-Damages.-The de
fendant bad possession of a mine under a lease in which he covenanted to pay $2 a ton royalty for all ore mined and removed, and to mine and remove ten thousand tons per annum. Hild, that attachment would not lie for the damages accruing on breach of the covenant to mine and remove the stipulated quantity. The plaintifl's preliminary affidavit in attachment is not conclusive as to the puture of his claim. The defendant in attachment may give bond and have his personal property discharged, after appearing and pleading in the action. Hecksher v. Trotter, s. C. N. J., Aug. 26, 1886, 6 East. R., 583.
4. Charity.- Equity – Voluntary Associations
Jurisdiction.-A charitable trust, as recognized and known at common law, and sustained by courts of equity, Wits public in its nature, and the persons to be benefitted by it were, until desig. nated as the beneficiaries for the time being, vague, uncertain, and indefinite; and where a common fund is created by voluntary contributions, its benefits being restricted to the members of the association, it cannot e considered a char.
itable trust, nor subject as such to be controlled by a court of equity. Nor can the jurisdiction of equity over such voluntary associations and their funds be sustained on the ground of partnership, since the members, whatever may be their relation or liability to third persons, are not partners inter sese; there being no mutual participation in profit or losses, no authority to bind or assign the common property, and no dissolution wrought by the death of a member. But the jurisdiction of courts of equity over such associations and their funds is maintained, independent of the statute of uses, or of any prerogative power, on the ground of the trust nature of the fund, the charitable uses for which it is designed, and the inadequacy of legal remedies. When the operations of such voluntary associations have been discontinued, its objects and purposes being abandoned by common consent, a court of equity has jurisdiction to decree a dissolution, and to distribute the common fund among the contributors in proportion to the amount contributed by them respectively. A new association being formed, composed of some of the members of the old with other persons, members of the same church, and made subject to such laws and restrictions as the church might prescribe; while an unauthorized dismissal of some of the members, by the arbitrary act of the minis. ter in charge, without a trial or hearing, might offer grounds for legal proceedings to compel their restoration, such nugatory act would not authorize a court of equity, at their instance, to decree a dissolution of the association, or a distribution of the common fund among the members. Burke v. Roper, S. C. Ala., 1886. 5. CONSTITUTIONAL LAW.-Ordinance-Arbitrary
Pover to Control Exercise of Lavoful Calling.An ordinance empowering the authorities of a city to grant or withhold the exercise of the right to earn a livelihood in an ordinary and proper way is unlawful as in violation of the provisions of the Federal Constitution providing that no one shall be deprived of life, liberty or property without due process of law, in that it gives such authori. ties the arbitrary power to deprive a person of his property, and of his right to exercise his proper ealling. Yick Wo v. Hopkins, S. C. U. S., May 10, 1886; 22 Rep., 289.
Statute Part Void, Part ValidIntoxicating Liquors— Sale on Sunday.-When a statute is unconstitutional in part, and constitutional in part, while the unconstitutional part may be void, the constitutional part may be valid, and may be carried into effect: provided, that the parts of the statute are not so interdependent that it must be presumed that the statute was enacted as a whole, and was intended to be carried into effect as a whole. A statute (Pub. St. R. I. c. 87, § 31) prohibiting the sale of intoxicating liquors on Sunday, except by druggists and upon physicians' prescription, is not void because it is part of a chapter enacting a license system,under an amendment to the State Constitution (Const. R.I. amend. 5) prohibiting the manufacture and sale of such liquors as a beverage. State v. Clark, $. C. R. I.,
July 26, 1886; 5 Atl. R., 635. 7. CONTRACT.- When Closed- Telegram-Conflict
of Law.-A telegram accepting an offer, if sent within the time agreed upon, completes the contract. The time of telegraphing is the time the contract was closed, and when sent from one State to another, the State from which the telegram was
sent determines the place of the contract. Perry v. Mount Hope, etc. Co., S. C. R. I., July 24, 1886;
6 Atl. Rep., 632. 8. CORPORATION.-Action against Individual Mem
bers. Articles of incorporation of a “Mutual Benefit Association,” apparently intended as a sort of mutual insurance company, were duly executed by defendants, and duly recorded with the register of deeds and Secretary of State. M. became a member of the association, paid his dues, and received a certificate of membership, and sustained bodily injury entitling him, as such member, to pecuniary benefit, to recover which this action is brought against the original signers of the articles of association as individual persons. The association did not become a corporation de jure, not having complied with the statute so as to become an insurance corporation de jure, and not being a “benevolent society," under title 3, c. 34, Gen. St. 1878. Held, that, although not a corporation de jure, the association is, as between its members, to be regarded and treated as a corporation de facto, and hence this action against the defendants as individual persons will not lie. Foster v. Pray, S. C. Minn., July 17, 1886; 29 N. W.
Rep., 155. 9.
Insurance-Mutual Relief. - Where the objects of the association, as declared in the certificate of incorporation, are to combine the efforts of the members with a view to effect mutual relief, leaving the details of the plan to be provided in the by-laws, and they provide for a system of life insurance, with the power to each member to designate any person he may choose to receive payment, the designation of a person for that purpose who is not a member of the family of the deceased, is not in contravention of the certificate of incorporation. The subject of life insurance is not one of the objects enumerated in chapter 267 of the Laws of 1875, entitled “An Act for the Incorporation of Societies or Clubs for Certain Lawful Purposes," unless it is embraced in the terms “mutual benefit” or “benevolent." There is no restriction in the Act which requires that the benefits or benevolence be contined to members of the families of the members. Massey v. Mutual, etc. Society, N. Y. Ct. App., June 1, 1886; 3 Cent. Rep., 755. 10.
Municipal Corporation-Assessments for Waterworks-Exemption on Payment of Waterrates.-The legislature may empower a municipal corporation to assess specially the lots along which a water service is laid to maintain the service; and to exempt those lots where the owner pays the water-rates. Richmond, etc. Co. v. Lynchburg, etc.
Co., S. C. App. Va., Feb. 23, 1886; 22 Rep., 350. 11.
Torts of Officers—False Representations as to Stock-Fraud of Incorporators-Liability to Creditors.-Where managers of a corporation make false reports,or resort to fraudulent devices, and thereby induce persons to take stock, such purchasers, in order to recover in an action for fraud and deceit, must show that they acted upon the faith of the representations. The fact that incorporators committed a fraud upon the corporation does not give a creditor of the corporation cause of action against the incorporators. Priest v. White, S. C. Mo., June 21, 1886; S. W. Rep.,
361. 12. CRIMINAL LAW.-Evidence-Joint Indictment
Separate Trials.-When a fact sought to be proved
flicting: Heid, that a verdict of $4,000 was sive, and should be reduced to the sum of $1,000. Phelps v. Coggswell, S. C. Cal., July 23, 1806; 11 Pac. Rep., 626.
16. DEED.-Condition Subsequent-Restriction as
to Building and Use-Quit claim Deed--- Conceys Reversion Merger — Interest Conveyed - Con. struction--Intent-Efect of Deed. A provision in a deed that the grant is made with the limita. tion and qualification, and the express conditions, that if, at any time, thereafter, any building of a certain character shall be erected on the land, or if the land shall be used for other than specified purposes, it shall be at once forfeited, and revert to the grantor, his heirs and assigns, is a condition, and not merely a restriction, or personal covenant. A subsequent quitclaim deed by the grantor to one claiming under the grantee conveys his reversion and right of entry for condition broken, and so destroys the condition, and makes the title absolute; the right to enter for condition broken being as. signable in Connecticut by statute. Where the language used in a written instrument leaves no room for doubt, the secret, unexpressed intention of the parties cannot be permitted to vary or change its meaning. The effect of a release of "all the right, title, interest, claim, and demand wbatsoever,” which the releasor has, or ought to bave, in and to a certain tract,” is not destroyed by the statement in the deed that the premises had been theretofore mortgaged to the grantor. Though the grantor in the quitclaim deed may not have intended to release his reversionary interest, he has in fact done so, and the law will afford him no relief. Hoyt v. Ket cham, s. C. Conn., June, 1886; 5 Atl. R., 606.
Construction What Land PassesRecord of Deed.—The heirs of an estate conveyed the land in controversy to appellant's vendor in 1881, but the deed was not recorded until 1883. In 1882 the same heirs joined in an instrument to convey to the husband of one of them all of the real estate belonging to the estate of the deceased. Held, that the deed of 1882 did not embrace the land in controversy. Galbreath v. Engelke, S. C. Tex., June 25, 1886; 1 S. W. Rep., 346.
is erroneously excluded, but afterward admitted during the course of the trial, the error is cured; and where the evidence as finally admitted does not fully cover the fact, owing to an objection made by the party first seeking to prove it, he cannot be heard to complain that the question was finally left in doubt. On a joint indictment for the crime of feloniously and by false pretenses obtaining signatures to a written instrument with intent to defraud, the court may, in its discretion, order separate trials. People v. Clark, N. Y. Ct. App., June 25, 1886; 6 East. R., 551.
Intoxicating Liquor.-A defendant cannot escape the punishment prescribed by law for the unlawful sale of intoxicating liquor to a minor, upon his bona fide belief that such minor was of lawful age, based solely upon appearances, but it must also be shown that he had used due care to ascertain the minor's age. The action of the court, even if erroneous, in permitting the jury to take an annotated copy of the Revised Statutes to their room, cannot be complained of on appeal, unless objected or excepted to at the time. Mulread v. State, s. C. Ind., June 15, 1886; 4 W. Rep., 498.
Selling Liquor without LicenseEridence Intoxicating Effect of "brandy cherries."-In a prosecution for selling intoxicating liquor in violation of a probibitory law, a witness for the prosecution baving testified that the liquor or beverage sold by the defendant produced on him effects similar to those produced by whisky, it is competent for the defendant to prove by other witnesses, who had drank it, that it had no intoxicating effect on them. In delivering the decision of the court, Somerville, J., said: "The question for decision was the intoxicating quality of this fluid, or beverage, which contained cherries, and was sold in bottles by the defendant. A witness for the State bad testified that its effect upon himself and another person had been similar to that ordinarily produced by whisky. It was competent to show by others that its effect on them, when drank in appreciable quantities, was not intoxicating. The most available mode of testing the nature and properties of a fluid or drug, next to that of chemical analysis, is by its effect on the human system. That a liquor, when taken in certain quantities, intoxicated, or failed to intoxicate, the person taking it, is as competent to prove or disprove its intoxicating qualities, as it would be to prove the poisonous effect of a drug by the effect following its administration. Negative testimony of this kind may often be very weak and inconclusive, because of the comparison involved in determining the relative facility with which different persons may, or may not, become intoxicated or drunk. But we cannot say what would have been the effect of this evidence upon the mind of the judge, who was substituted for the jury as the trier of the facts of the cause. We decide nothing more than the admissibility of this evidence, leaving to the county court itself to decide what shall be its weight or credibility. Knowles v. State, s.
C. Ala., Dec. Term, 1885-86. 15. DAMAGES.- Excessive Damages-Malicious Pro.
secution.-In an action for malicious prosecution, in having tbe plaintifi arrested on a charge of assault, where he was never put in jail or subjected to any real hardship or act of oppression, and the charge was subsequently dismissed, and the testimony as to probable cause for the arrest was con
18. EVIDENCE.- Admissions-Negligence- Witness
-Wife of Deceased Bailor-Experts— Whether a Horse Should have been Tied --Subsequent decla. rations of a baillee may be shown in negligence admitting his liability; he is not, however, absolutely bound thereby, but may be neutralized by his testimony. The wife of a deceased bailor is a competent witness to the bailee's declarations. Expert evidence is not competent to show whether a horse should have been tied to prevent him from running away by reason of a sudden fright. Stowe
v. Bishop, S. C. Vt., March 15, 1886; 22 Rep. 319. 19. EXECUTORS AND ADMINISTRATORS-Costs
Party Forcing an Action by Refusing to Deliver up Papers Belonging to Another must pay. The will of a decedent was given to the next of kin and heir at law by the executor of the estate. The heir, being dissatisfied with the will, gave it to her husband, who secreted it. A bill was filed, and an injunction asked for restraining the heir or her husband from destroying the will. The answer admitted the possession of the will, but contended that the defendants never refused to deliver it. Held, that the evidence showing a demand for the paper by the executor, which was not complied
with, defendants should pay costs of suit. Beckett r. Zane. N. J. Ct. Ch., August 24, 1856; 5 Atl. R., 638.
30. GUARDIAN AND WARD-Jurisdiction of the
Court-Conducting Business for Insane PersonCompetency of Evidence Compensation of Guardian-Annual Settlements of Guardian of Insane Person-Bond-Liability of Sureties—Past Defaults.-The court may order the guardian of an insane person to carry on the business of the ward. Even though no previous order is procured, the annual settlements, and orders of approval made thereon, are competent to show that the business was carried on under the supervision of the court, and reasonable compensation may be allowed therefor. The annual settlements of the guardian of an insane person are not conclusive, but only prima facie, evidence of their correctness. Sureties are not liable for past defaults, unless made so by the terms of the bond. State, to use, etc. v.
McLean v. Hess, s. C. Ind. May 25, 1886; 4 West.
Jones, S. C. Mo., June 21, 1886; 1 S. W. Rep. 355. 21. HUSBAND AND WIFE - Divorce — Alimony
Counsel Fees-Jurisdiction. The trial court is vested with power, in an action of divorce, to make an order for the payment, by the defendant, of a sum for counsel fees, to enable his wife, who was without any means or property otherwise than as obtained from him, to prosecute her action then on appeal. Ross, J., dissenting, on the ground that the power to allow a wife counsel fees in the appellate court is properly vested in the appellate court. Ex parte Winter, s. C. Cal. July 30, 1886; 11 Pac. Rep. 630.
25. INTEREST-Claims Against Decedent's Estate.
-A claimant against the estate of a decedent is entitled to interest at the rate of 7 per cent. per annum, on claims allowed against the estate by decree of the probate court, from the date of such decrees, notwithstanding the indebtedness which was the basis of the claim did not of itself draw interest. Estate of Olvera, S. C. Cal. July 20,
1886; 11 Pac. Rep. 624, 26. MORTGAGE-Property not in Mortgagor's Pos
session--Deed-Mistake-Impeaching-Mortgagee Acquiring Tax Title-Redemption-Laches-Failure to Redeem.-A mortgage of land in the possession of another, adverse to the mortgagor, is good in equity between the parties to it. A deed which, by mistake, conveys land not intended to be conveyed, passes the legal title to the grantee, and can be impeached only by the grantor, or some ore claiming under him. A mortgagee, either in possession or out of possession, is not entitled to set up as against the mortgagor or the other mortgagees, a tax title to the mortgaged estate purchased by him at a tax sale. A failure to redeem for six years and a half does not constitute laches. Hallv. Wescott, S. C. R. I. July 24, 1886; 5 Atl. Rep. 629.
2. INJUNCTION-Execution Sale of Wife's Land
Tresspass—Remedy at Law.-A court of equity has no jurisdiction to enjoin a threatened sale of lands belonging to the wife, under an execution against her husband. Upon the consummation such a sale, the wife has a complete legal remedy by an action in form trespass quare clausum, and meanwhile, her title is neither jeopardized nor beclouded. Purint on 1. Davis, 8. C. Texas, June
18, 1886; 1 S. W. Rep. 343. 23. INSURANCE-Fire Insurance – Adjustment of
Loss--Arbitration. — Under the language of the stipulations of an insurance policy stated in the opinion, held, that the contract of the parties was that, if the amount of loss cannot otherwise be adjusted to the satisfaction of the parties, it shall be adjusted by the mode of arbitration therein prescribed, and that until such adjustment, or a fair effort on the part of the insured to obtain it, no cause of action arose. Adams v. South British, etc. Co., S. C. Cal. July 23, 1886; 11 Pac. Rep. 627.
27. NEGLIGENCE-License to Cross Tracks-Public
Way-A mere permission or license from a railroad company to persons to cross its tracks is not an invitation. Whether the construction of a crossing over a railroad is such, as of itself to amount to an invitation, or evidence for the jury of an invitation by the railroad company to the pub. lic to use the same for its convenience, must be determined by considering, whether the construction was such as reasonably to induce the public to believe that the crossing was a public way. A person struck by a car while walking upon the railroad track without right cannot maintain an action for injuries in the absence of evidence of willful or reckless conduct on the part of the company or its agents. Wright v. Railroad Co., S. J. Ct. Mass., July 3, 1886; 6 East. Rep. 611.
14. - Fraud-Husband and Wife-Where a
mill property was conveyed to a married woman, and no part of the consideration was paid by the husband, and the grantor furnished money to them with which to procure an insurance upon the property, and the policy was taken in the name of the wife, no matter how fraudulent the purpose may have been in having the property conveyed to her, the policy belongs to the wise, and in case of loss the proceeds of the policy cannot be taken from her by her husband's creditors. A conveyance by a stranger to a third person will not be set aside, nor will the property conveyed be subject to the payment of the debts of the fraudulent debtor, where it appears that none of his property or money has gone into the property so conveyed.
Master and Servant-Railroad-Snow Bank-Posting Signals— Temporary Obstruction -Signal-Speed of Train-Contributory Negligence.-A railway company is not liable in negligence for injuries to an employee by reason of its failure to post a signal on a snow bank close to the track; the employee must take notice of such obstructions. A railway company is not required to sound a signal on approaching a temporary snow tank close to the track wbich an employee had assisted to make, as an obstruction, to warn that employee of danger; he must be held to take notice of that obstruction. Where an employee of a railway company contributes to his injury he cannot set up the speed of the train as negligence in the company:
Brown v. Chicago, etc. Co., S. C. Iowa, June 17, 1886; 22 Rep. 303. 29. NEGOTIABLE INSTRUMENT--Notice-No Evi
dence-Agent.-If the endorsee of a negotiable instrument before its maturity knew, or if such facts came to his knowledge, which, if inquired into, would have informed him of an equity of the maker, he takes the instrument cum onere. Where a negotiable note is secured by a mortgage, the fact that one-half the land has been released, is some