« AnteriorContinuar »
lows to Neil McIntyre by deed dated Febauary 6, 1869, as set forth in the bill and exhibits thereto; and should have declared the trust in her favor, therefore, as prayed in her bill; and found the raid Daniel McIntyre the owner of the 5-21 parts of said lands, and made partition thereof accordingly; subject, however, to the lien of the deed of trust to appellee Ashway thereon for the amount of money remaining due tberunder, and requiring that the interest of the said Neil in said 152.84 acres of land now owned by said appellee Daniel McIntyre be first exhaus'ed in satisfaction of the sum secured by said trust deed before resorting to the interest of appellant in said lands to satisfy the same; and finding that as to the said 40-acre tract, to-wit, the N. W. 1-4 of the N. W. 1-4 section 18, township 25, range 3 E., fourth principal meridian, the complainant was not entitled to relief.
The decree of the circuit court dismissing the bill will be reversed, and the cause remanded to that Court for further proceedings not inconsistent with this opinion.
And where the alleged cestui que trust bears such a relation to the holder of the legal title as implies a duty or obligation of a moral character to provide for him, no trust will be presumed from the advance of the purchase money. On the contrary, the presumption will be that the advance was a gift. A usual instance of this is the case of title to land purchased be. ing taken in the name of a son, the father paying the purchase money.8
The resulting trust arising from the payment of the purchase money may be rebutted by the counter presumption growing out of the relation of the parties, and this latter may itself be rebutted by circumstances going to show that the intention of the parties was that the transaction should be upon the general principle, irresrective of parental or other like considerations.9
Among the circumstances which have been held to rebut the rebutting presumption is the fact that the father, paying for land conveyed to his son, has already made due provision for bis son. This has been held to have rebutted the presumption arising from the relationship and to restore the resulting trust to its full operation.10 . And yet the court conceded that it is a well established rule of equity that a father is the only judge of the character and extent of the provision he will make for his son. This rule, although sanctioned by Lord Nottingham and Lord Hardwicke, has not been adhered to in every instance. The rule, therefore, may be stated to be that when one person advances the money to pay for land of which another holds the legal title, a trust results in his favor, and this trust can only be defeated by proof of circumstances which show that the parties did not intend that any such trust should result. And chief among such circumstances is the relation of parent and child between the parties, but that the presumption growing out of that relationship is by no means conclusive, and may be itself rebutted, not only by proof of prior adequate provision for the son by the father, but also by proof of such other facts as will establish the trust, such as the father collecting rents of his son's land for which he, the father, has paid, or the son signing receipts for such rents as agent of his father.
For the rest it need only be said that the validity of resulting trust is in no respect affected by the Statute of Frauds, 11 being a creation of the law and not of the parties, and that the relation of brother and sister is not one of those relations out of which can arise a presumption tending to rebut a resulting trust.
NOTE.-The rule is well established by all the cases without a single exception, that the trust of a legal estate, however the legal title may be held, results to the party who has paid the purchase money. And it is equally true that a trust results in favor of one who paid part of the purchase money of land, the title to which is taken in the name of another, but only to the amount so actually advanced.2 And the advance or payment must be actual, for such a trust does not arise upon agreement or contract. It is held, however, that a resulting trust is not created in favor of one who pays part of the purchase money, unless such payment is made for some aliquot or specific part, or distinct interest in the estate.4 It is said that a general contribution of a sum of money toward the entire purchase is not sufficient.5
There are, however, some exceptions of a serious character to the general rule. A resulting trust will not be raised when it would contravene a statute of the States, founded upon considerations of public policy, 6 Nor will a resulting trust be implied against an adequate rebutting presumption, for the trust itself is, at best, a matter of presumption, and may be rebutted even by parol evidence.7
I Lee v. Browder, öl Ala.f288 : Pinney v. Fellows, 15 Vt. 538; Hays v. Quay, 68 Pa. St. 263; Harvey v. Ledbetter, 48 Miss. 95; Hutchins v. Hayward, 50 N. H. 491; Woodford V. Stevens, 51 Mo. 443; Pamphrey v. Brown, 5 W. Va. 107; Blodgett v. Hildreth, 103 Mass. 481. And many other cases, English and American,inight well be cited in sup. port of this principle. 2 Kelly v. Jenness, 50 Me. 455.
3 Remington v.Cainpbell, 60 11.516; Holmes v. Holmes, 44 ni. 168; Sheldonjv.JHarding, 44 II. 68; Bruce v. Roney, 18 Ill. 67.
4 McGowan v. McGowan, 14 Gray, 119; Olcott v. Bymun, 17 Wall. (U.S.) H.
8 Crop v. Norton, ? Atk. 74; Sayre v. Townsend, 15 Wend. 647; White v. Carpenter, 2 Paige, 217; Perry v. McHenry, 13 III. 227; Baker v. Vining, 30 Me, 121.
But see Jenkins v. Eldredge, 3 Story, 181.
ED. CENT. L.J.
Grahain v. Graham, 1 Ves. Jr. 275; Botsford v. Burr, 2
8 Sidmouth v. Sidmouth, 2 Beav. 447; Bennet v. Bennet, 10 Ch. Div. 474; In re Der Visne, 2 DeGex, J. & 8. 17; Farrell v. Lloyd, 69 Pa. St. 239.
9 Marshall v. Crutwell, L. R. 20 Eq. 328.
11 Boyd v. McLean, 1 Johns. Ch. 582. See, also, Gascoigne v. Theving, 1 Vern. 366; Lane v. Dighton, Ambl, 409; Ryall v. Ryall, 1 Atk. 59; Willis v. Willis, 2 Atk. 71; Leach v. Leach, 10 Ves. 517.
6 Harvey v. Varney, 98 Mass. 118; Haigh v. Kaye, L. R. 7 Ch. 469; Miller v. Davis,50 Mo, 572; Wheeler v. Kirtland, 23 N. J. E. 18.
7 Dyer v. Dyer, 2 Cox, 93; Lloyd v. Read, 1 P. Wms. 607;
1. BOUNDARY-Highway-old Fence- Evidence
Ways-Grading-Injunction- Acts of Selecimen of Town-Cutting Down Trees-Irreparable Injury.—The fact that an old fence, running parallel to the highway has stood in the same place for 40 years is not conclusive that it is coincident with the line of the highway, as dedicated, or that the premises of the abutting owner may not extend beyond the fence. The acts of selectmen, who are about to enter upon private premises to grade the same as a part of the highway, acting under the authority of votes passed by the town, are so far the acts of the town itself that the town can be enjoined. The selectmen are not to be regarded as acting merely for the public, or as agents of the law. Threatened entry upon private premises to grade the same as a highway, involving the cutting down of ornamental trees, may, upon a finding that the same would cause irreparable injury, be enjoined. Wetherell v. Town of Newington, Supreme Court of Errors, of Conn. July, 1886; 5 Atl. Rep. 858.
sued preferred stock, held, that dividends on the preferred stock were payable from the net earnings of any year notwithstanding an existing deficiency of nearly a quarter of a million dollars,and notwithstanding the provision of the general statute forbidding any corporation to declare a divi. dend while its capital is impaired, said deficiency having existed prior to the act of the legislature. Cutting v. New York, etc. Co., Supreme Court of
Errors, of Conn., July 20, 1886; 5 Atl. Rep. 857. 4. - Municipal Corporations-Assessments for
Improvements.- Taxes assessed not according to the true value of the property cannot be sustained, and improvement assessments are invalid when not imposed for and within the limits of special benefits derived from the improvement. State a. Mayor of the City of Patterson, Supreme Court
of New Jersey, Oct. 6, 1886; 5 Atl. Rep. 896. 5.
Supervisors-Repair of BridgePurchase of Abutments-Unauthorized Contract of Town Supervisors-Ratification.-A resolution passed at an annual town meeting authorizing the supervisors to use their own judgment in repair. ing the abutments of a certain bridge, or moving it to another place, confers on the supervisors no authority to purchase the abutments. Where the contract for the purchase of certain bridge abutments by the supervisors of a town is void, and the town builds a bridge upon said abutments, it does not thereby ratify the void contract. Hubbard v. Town of Williamston, Supreme Court of
Wisconsin, Oct. 12, 1886; 29 N. W, Rep. 393. 6. Public or Private-Charitable Corpora
tions-Character of Corporations Cannot be Determined Solely by Charter-Negligence-NonSuit.-Whether the “Insurance Patrol of the City of Philadelphia" is a public agent of the municipality, or a charitable corporation, or a private corporation for profit, cannot be determined solely by the language of the special act by which it was incorporated. Hence, in an action against said corporation to recover damages for negligence of its servant, in which the court granted a non-suit on the ground that it was a public charity, there being no evidence as to its character other than the charter, the Supreme Court, on writ of error, reversed the judgment, and awarded a procedendo, in order to show in what manner the affairs of the corporation had been conducted. A, and B., servants of a corporation, went in a wagon to remove certain tarpaulins, belonging to the corpora. tion, from the upper floor of a house. A. went up stairs and threw the rolls of tarpaulin out of the front window to the street below. B. stood in the street by the horse's bead, and gave warning to the passers-by; but in one case he failed to give warning in time, and a pedestrian was struck and killed by a bundle thrown out of the window. In an ac. tion against A. and B., the conrt granted a nonsuit as to B. Held, under the circumstances of the case, not to be error, as although A. and B. may have together determined to throw the bun. dle out of the window upon the pavement, B. had no reason to suppose that A. would recklessly throw the bundles upon the passers-by. Boyd v. Insurance, etc, of Phila., S. C. Pa. Oct. 4, 1886; 18
W. Notes. Cas. 209. 7. CRIMINAL LAW-Appeal-Evidence-New Trial
- Newly-Discovered Evidence-Assault and Bat. tery.- Where the testimony offered by the State, when taken alone, is competent and sufficient to
2. COMMERCIAL LAW-Promissory Note. Where
promissory notes are made in Kentucky, and mailed to the payees doing business in Boston,and made payable at the Kentucky National Bank, they are contracts of that State, and are governed by its statute law. The statute of a State which gives the maker the right to set up in defence any discount or offset that the defendant has, and might have used against the original obligee, or any intermediate assignor, before notice of the assignment, is constitutional and valid, although it changes absolutely the operations of “the law mercbant.” Shoe, etc. Bank v. Wood, Supreme J. C. Mass. Oct. 23, 1886; Boston Law Record, Oct. 29, 1886.
3. CORPORATION-Dividends on Preferred Stock
Impaired Capital-Railroad— Statute. – Where an act of the legislature allowed a railroad corporation, whose finances were embarrassed by a large floating debt which it could not meet, either to pay the debt with the proceeds of second mortgage bonds to be thereafter issued, or to issue preferred stock for the purpose, by consent of a majority of the stockholders, and provided that the holders of such preferred stock should receive "out of the net earnings” of the company, annually, a certain per cent. on said stock, arrearages for any year to be paid out of net earnings of subsequent years before paying anything on the common stock, and the company adopted the latter method, and is
erty cannot be considered in a suit to wbich they are not parties. Kinney v. Trustees of Shelbyville, Ct. of App. Ky., Sept. 28, 1886; 1 N. W. Rep. 472.
sustain the prosecution, a verdict which has been approved by the district court will not be set aside in the supreme court for insufficiency of the evidence. As a general rule, newly-discovered evidence, the purpose of which is to discredit a witness in the original trial, does not afford adequate ground for the granting of a new trial. The declarations of a party other than the defendant which formed no part of the res gestae, although they may amount to an admission that he committed the offense charged against the defendant, are not admissible in evidence in behalf of the de. fendant, and an application for a new trial based upon such evidence was properly refused. Evidence examined, and held to be sufficient to sustain a charge of assault. State v. Smith, s. C. Kans.
Oct. 7, 1886; 11 Pac. Rep. 90%. 8. CRIMINAL LAW. - Appeal — Rules of Court –
Homicide – Manslaughter – Self-Defense.— The right to an appeal in criminal cases is not a constitutional right; and an accused, having had his trial below, must conform to the rules prescribed by law for bringing his case to the appellate court, and to the practice adopted there. When the evi. dence shows that the accused lay in wait and slew his adversary without or with warning, there will be no ground for an instruction for manslaughter or self-defense, even though it appear that the accused had been previously threatened and assault. ed with a deadly weapon by the deceased. Turner v. Commonwealth, Court of Appeals Ky., Sept.
30, 1886; 1 S. W. Rep. 475. 9.
False Pretenses-Indictment-Theft -Former Acquittal-Motion for Continuance.The fact that an indictment for swindling contains allegations of acts on the part of accused that constitute theft does not make the indictment bad for swindling. A plea of former acquittal to an indictment for obtaining property under false pretenses, by trading cattle to which the accused had no title, for a horse, is not borne out by the fact that the defendant had been tried for stealing the cattle, and acquitted. Where it is developed, at the trial, that the evidence upon which tbe accused based his motion for a continuance, which motion was overruled, was material and important, a new trial will be granted. Sims v. State, Ct. of App. of Texas, June 25, 1886; 1 S. W. Rep. 465.
12. Description_"East Half of Tract, Con
taining Fifty Acres”—Estoppel-Eject ment-Title Recognized in Former Foreclosure Suit-Boundary-Taking Case from Jury.- Where the description in a deed transferring a portion of a tract of land having an irregular southern boundary, was the "east half of the east half of the north-west quarter, and the east half of the east half of southwest fractional quarter, all in section thirty-six, containing fifty acres of land, being the east half of one hundred acres," etc., Held, that the deed conveyed one-half of the quantity of the land, and not the land lying east of a line drawn through the middle of the tract. In an action of ejectment, a party who was a defendant in a previous action to foreclose a mortgage by reason of his having levied upon and sold the mortgaged property as judg. ment creditor of the mortgagor, and who had in the former action asked for an accounting of the rents and profits of the premises, the levy having been set aside in the decree of foreclosure, is not estopped in the action of ejectment from denying the title recognized by him in the former action. In an action involving a dispute as to the location of a boundary line between adjoining tracts of land, where there was testimony introduced to show the actual location of the boundary line, it was error to withhold the case from the jury. Jones v. Pashby, S. C. of Mich., Oct. 7, 1886; 29 N. W. Rep. 374.
13. EQUITY.-Action to Quiet Title – Service of
Process upon Infants-Parties-Husband of Deceased Devisees.-In an action to quiet title to real estate it should be made to appear that the minor children of a deceased devisee are under fourteen years of age, or they should be served with process. In an action to quiet title to real estate, the husband of a deceased devisee is interested, and therefore, under the Kentucky Code, should be made a party, and served with process. Shuchart v. Clark, Ct. of App. Ky., Oct. 2, 1886; 1 S. W. Rep. 279.
10. DEED.-Acknowledgment – Act of Kentucky of
1792-Effect of Certificate.- Under the act of the legislature of 1792 the certificate of acknowl. edgment to a deed which is made before two justices of the peace must state that "the deed was so acknowledged, and also subscribed or signed, in their presence.” A certificate by the justices to the effect that, in their presence, the parties acknowledged the indenture by them subscribed to be their act and deed, certifies simply to an acknowledgment in their presence, and not also to a subscription. Brown v. Swift, Ct. of App. Ky., Sept. 28, 1886; 1 S. W. Rep. 474.
14. —~. Jurisdiction-Bills Quia Timet to Re
move Cloud on Title to Real Estate-Relief Afforded.- Courts of equity in Pennsylvania have jurisdiction of a bill filed by the owner of real estate, in peaceable possession thereof, to remove a cloud from his title by decreeing the cancellation of an outstanding deed held by the defendant, valid upon its face, but averred to be invalid by reason of matter resting in parol. This jurisdiction is independent of any relation of trust or of fraud, accident, mistake, account, or other head of equitable jurisdiction. “Whenever a deed or other instrument exists which may be vexatiously or inju. riously used against a party after the evidence to impeach or invalidate it is lost,or which may tbrow a cloud or suspicion over his title or interest, and he cannot immediately maintain his right by any course of proceeding at law, a court of equity will afford relief by directing the instrument to be delivered up or cancelled, or by making any otber decree which justice or the rights of the parties may require.” The foregoing expression of the rule, by Merrick, J., in Martin v. Graves (6 Allen, 661), approved. In this case the court, at the suit of the owner in possession, decreed the cancellation of a recorded treasurer's deed valid on its
11. - Conditions, Forfeiture, Waiver-Lapse of Time Action or Suit-Parties · Rights of Strangers.-Where a party has been granted property on certain conditions, and seeks to avoid forfeiture, after a breach of the conditions, on the ground tbat his grantor has acquiesced and waived his rights, it is incumbent on him to allege and prove such lapse of time, since the breach, as would authorize a court to presume an acquiescence and waiver. The rights of persons to prop
chapier 31, Comp. Laws, 1879, which charges the defendant with putting the part of a carcass of any dead animal into any river, creek, pond, road, street, alley, lane, lot, field, meadow, or common," but which does not allege that the act of the defendant complained of resulted to the injury of the health or to the annoyance of the citizens of ihe State, or any of them, is insufficient, and a motion to quash such complaint should be sustained. State v. Wail, S. C. Kans. Oct. 7, 1886; 11 Pac. R. 911.
face, but which, it was shown by parol evidence, was made under an invalid sale, and which deed was therefore a cloud upon the complainant's title, though the grantee under the deed had not asserted an adverse title to the land in question, otherwise than by his answer in this case. Dull's Appeal, S. C. Pa., Oct. 4, 1886; 18 W. Notes of Cas.
216. 15. EVIDENCE.-Handwriting – Signature - Genu
ineness-Witness-Competency - Interest.-Without personal knowledge of a person's handwriting, testimony that witness sent receipts in blank to such person, which were returned by another, was insufficient proof of the genuineness of the signatures. The husband of an heir at law who has assigned her interest in a mortgage which was part of a decedent's estate, is a competent witness in an action of ejectment by decedent's administrators. Brant 0. Dennison, S. C. of Pa., Oct. 5, 1885; 5
Atl. Rep. 869. 16. Judicial Records—Issue of Nul Tiel Rec
ord-Record in Same Court-Inspection of Reco ord-Insoivency-Discharge-Record-Docket Entries.-Upon the trial of an issue of nul tiel record in the same court where the alleged record is kept, it is not necessary to produce a formal record of the alleged proceedings, and it is sufficient to have the docket entries and original entries laid before the court for its inspection. Where the following entries were made in the docket of a court in insolvency proceedings: "June 21, 1879. Certif. pub. notice filed. Same day petitioner finally discharged:" Held, that the presumption is that the court itself wbile in session ordered the discharge, and that the clerk made the entry thereof in open court. Held, further, that the docket entries and papers in the insolvent proceedings showed a valid and complete discharge of the insolvent debtor from all debts and contracts made before filing the application in insolvency. Lerian v. Bohr, Ct. of App. of Md., October Term, 1886; 7 Atl. Rep. 867.
21. INSURANCE-Policy of-Implied Waiver of Con
ditions-Premium-Principal and Agent-An insurance company issued through an agent a policy of insurance, which contained, inter alia, the condition that if the assured “shall have neglected to pay the premium,” the policy should be null and void. A clause stamped upon the face of the policy further provided that the person procuring the the insurance should be deemed the agent of the assured and not of the company. The agent had been in the habit of remitting to the company the amount of the premiums due by the assured, charging the amount upon his books against the latter, and receiving the premium from them sometime during the month after it came due. A premium became due on April 24, but was not paid. A loss by fire occurred on May 2, and on May 3, the assured sent notice of the loss to the company, and remitted the amount of the premium to the agent. The latter then sent a check for the premium to the company, which they refused to receive. Held, that the company were liable for the amount of the policy. Lebanon, etc. Co. v. Hoover, S. C. Pa. Oct. 4, 1886; 18 W. Notes, 223.
Similar Transactions with Third Parties.-Evidence of transactions of a similar nature between plaintiff and third parties, not shown to be his regular course of office or business, is not admissible to show the terms of the contract in issue between plaintiff and defendant. Aiken v.
Kennison, S. C. Vt., Aug. 31, 1886; 5 Atl. Rep. 757. 18. EXECUTION-Levy- Officer's Return-Amend
ment-A risal-Undivided Interest-Metes and Bounds.-If the return of an officer making a levy contains sufficient matter to indicate that in making the extent all the requirements of the statute have been complied with, an amendment of a mere clerical error may be made notwithstanding any intervening interest of a subsequent bona fide purchaser. An appraisal of the interest of a tenant in common is not invalidated because reference is made therein to the lot boundaries as the metes and bounds of the extent. Peaks v. Gifford, s.
Jud. Ct. Me. Sept. 24, 1886; 5 Atl. Rep. 879. 19. GUARDIAN AND WARD-Investment-Worthless
Securities.-A guardian, although acting in good faith, in not obtaining the sanction of the court to investments of the ward, will be held liable for all losses occur.ing through such investments prov. ing worthless. Osborne v. Munroe, Ot. Chan. N.
J. Oct. 9, 1886; 5 Atl. Rep. 898. 20. HEALTH-Putting Dead Animals Into Stream
Complaint.-A complaint filed under $ 319, of
22. JUDGMENT-- Setting Aside-Errors in Judg
ment-Schools-Lands-State Agricultural Col. lege Lands- Sections 3533 and 3531, Pol. Code Cal.-Construction of-Power of Land Agent Conflicting Claims of Individuals—Rights of Actual Settlers.-A judgment based on a finding against an admission made in the pleadings cannot be sustained, unless it is apparent that the judg. ment would bave been the same if the objectionable finding had not been made. Under the statutes (58 3533 and 3534 of the Political Code) relating to the disposition of the agricultural college lands, the land agent of the university had no power to sell land to an applicant who was not a qualified purchaser, or whose application was not in the prescribed form. A person who has never settled upon university land, never occupied or improved it, acquires no right to purchase it which can be maintained against an application to pur. chase by an actual settler upon the same land. White v. Douglass, s. C. Cal. Sept. 27, 1886; 11 Pac. Rep. 860.
23. LANDLORD AND TENANT-Lease on Shares
Assignment-Attachment - Crops not Grouon.A contract under which one of the parties is to “occupy, cultivate, and carry on" a farm of the other at the balves, vests in the tenant an interest in the land, and an assignment by him of his rights under the contract vests in the assignee a good title to the tenant's share of crops to be grown in the future, as against the tenant's attaching creditors, notwithstanding the fact that the tenant remained in possession after the assignment and was in occupation when the attachment was levied. Walvoorth v. Jenness, S. C. Vt. 1886; 5 At. Rep. 887.
24. MASTER AND SERVANT.--Assumption of Risks
Defective Railroad Switch-Evidence-Similar Accident - Trial – Instructions – Erceptions Negligence-Action for Death--Damages.-Where an accident, caused by a broken switch-rail, resulted in the derailment of an engine, and the death of the engineer in charge thereof, and the evidence tended to show that the rail was too weak and light to support the engine and rolling stock used on the road, held, that the risks of such defects was not to be deemed to have been assumed by the deceased unless it appeared that he had notice that the rail was unsafe. Proof of similar accidents at the same switch under the same conditions, held admissible; following Morse v. Railroad Co., 30 Minn. 471; 8. C., 16 N. W. Rep. 358. That the charge of the court is indefinite, or omits material instructions, is not ground of exception, where the attention of the court is not specifically invited to the matter or special instructions asked. In an action, for the benefit of the widow and next of kin, for damages for injuries causing death, and as having reference to the question of the reasonable expectation of pecuniary benefit to them if the deceased bad survived, it was not error for the court to instruct the jury that they might consider his age, health, capacity to earn money, and the injury to his business, as disclosed by the evidence. Clapp v. Minneapolis etc. R. R. Co. S. C. Minn., Oct. 6, 1886; 29. N. W. Rep. 338.
was entitled to have the damages sustained by him offset against the purchase money which the plaintiff was seeking to recover. Snow v. Holmes, S. C.
of California, Sept. 28, 1886; 11 Pac. Rep. 856. 27. NEGLIGENCE. Collision Instruction as to
Particular Facts—Trial-Instruclions-Claims of Both Sides-Negligence-- Same Rule for Plaintij and Defendant.-In an action to recover damages for an injury caused by the collision of plaintiff's and defendant's teams, it is not the duty of the court to state particular facts as constituting negligence if proved, but to leave it to the jury to de. cide whether, under all the circumstances, the conduct of the parties was that of ordinarily careful and prudent persons. The court may properly state to the jury the claims of both parties upon all questions of fact in the case. In determining the question of negligence, the same rule should be applied to plaintiff as to defendant. Dexter v. McCready, S. Ct. of Errors of Conn., July 20, 1886; 5. Atl. Rep. 855.
25.- MECHANIC'S LIEN-Material for Building,
Title to Lot - Filing Verified Account. — The plaintiff furnished materials for a building, erected by defendants on a designated village lot, in pursuance of a contract by them jointly entered into with him. The title of the lot was in the mean time in a third party, and, shortly, prior to the completion of the building, one of the defendants transferred his interest to the others, and the title of the lot was thereupon conveyed to the latter. Held, that plaintiff was entitled to enforce a lien for the amount of his claim against the building and lot, and that the defendants were estopped to deny title and ownership therein. In order to perfect bis lien, the material-man must file a duly. verified account thereof within the statutory time; and where such account purported to be sworn to before the register of deeds, but was not properly attested by his seal, so as to entitle it to be recorded within the time limited, held, that it was insufficient to preserve and continue the lie Colman v. Goodnow, S. Ct., Minnesota, Oct. 6, 1889; 29. N. W. 338.
-Contributory Neglence--Common Carrier and a Voluntary Carrier Without Compensa. tion-Difference in Degree of Care and Diligence Required from Each-Contributory Negligence of the Latter Does Not Debar Passenger from Recovering from the Party Who was the Direct Cause of the Injury.-A., who was a visitor in the borough of Carlisle, took a sleigh ride upon invitation of B., the owner and driver of the sleigh, and on their return in the evening the sleigh was upset and A.'s leg was broken. The accident was caused by an excavation in the middle of the street, which was not designated in a way to arrest the attention of a traveler after dark; said excavation was caused by the borough in making repairs on the road. In a suit by A. against the borough to recover damages: Held, that the offer to prove that B., the driver, was acquainted with the character of the street was properly rejected, as B.'s knowledge could not be imputed to A. The rule in Lockhart v. Lichtensbaler (10 Wr. 151), discussed and distinguished. Borough of Carlisle v. Brisbane, s. C. of Penn., Oct. 4, 1886; 18 Weekly Note of Cases 220.
26. MORTGAGE.-Mistake in Description of Note
Foreclosure-Set-Off and Counter-Claim-Breach of Contract-Good-Will.-Where a note was correctly described in a mortgage except as to its date and no question was made that the note produced was the one referred to and intended to be secured, the mistake as to date was held immaterial, and therefore it was not necessary that the mortgage be reformed before foreclosure. Where the defendant purchased from the plaintiff, with certain tangible property, the good will of a business, and gave a promissory note for a part of the purchase money, and the plaintiff afterwards willfully proceeded to draw off the defendant's customers, and to deprive him, to a large extent, of the good-will so purchased, and thereby damaged him in a sum greater than the amount remaining due on the note, held, that the defendant
-False Apprehension of DangerNero Trial-Verdict--Excessive Damages-Damages-Injuries to Person-Special Damages.When a person, acting with reasonable prudence, jumps from a moving car to escape a danger which is apparently impending, and is thereby injured, he is not guilty of that contributory negligence which bars recovery, even though had he in fact remained upon the car he would have escaped injury. The verdict of the jury is not to be set aside for excessive damages awarded, unless it appears that such damages were flagrantly excessive. In an action for damages for injuries to the person, where the petition does not aver any special damages, but only proceeds for the injury, the plaintiff cannot recover any many expended or debt created on account of it. South Covington etc. Co., v. Hare, Ct. of App. of Ky., Sept. 25, 1886; 1 S. W. Rep. 493.
30. PARTITION.-Considering Benefit to Husband og
Heir.-It is no ground of objection to a partition of realty, made between heirs, that the husband of one of the heirs owns a parcel of land adjoining their's, and near a spring of water thereon, which spring the husband has walled up and used constantly for several years in connection with his