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1. AGENCY Principal and Agent -- Liability of
Principal for Act of Agent-Private Instructions. -A principal is bound for the acts of his agent, done within the scope of his authority, and the principal will also be responsible for the unauthorized acts of the agent where the conduct of the principal justifies a party dealing with the agent in believing that such agent was acting within, and not in excess of, the authority conferred on him. Where an agent is held out to the world as one having the authority of a general agent, any private instructions or limitations not communicated to the persons dealing with such agent will not affect them, nor relieve the principal from liability, where the agent oversteps such limitations. Bank v. Everest, $. C. Kans. Nov. 5, 1886; 12 Pac. Reps. 141.
Error Introduction of Evidence Verdict Special Verdict--Instructions of Jury-Misstatement of Law Corrected – Excessive Damages.Where the acceptor of a gratuitous pass from a railroad company “assumes all risks of accident, and especially agrees that the company shall not be liable, under any circumstances, whether of negligence of their agents or otherwise, for any injury to his person,” the contract relieves the company from liability for damage to him by rea. son of a want of ordinary care of its servants, unless the same is expressly made a crime. Where a special finding in a special verdict is set aside, a new trial should be ordered, unless it clearly appears that the finding is wholly immaterial, and can have no effect upon the judgment. Where a rescuing engine approached a stalled train in a snow storm without stopping or slackening speed, the fact that the jury made an erroneous special finding that the engineer of the rescuing engine could have seen the train in time 10 bave stopped before running into it is no ground for setting aside a special finding that the negligence of the engineer was gross. In an action for damages for negligence causing the death of plaintiff's husband, it is material for her to show that she had no means of support except what he furnished her, as tending to prove that his death had caused her a pecuniary loss. The admission of incompetent evidence, which a special finding of the jury shows to bave had no weight with them, is not a prejudicial error. The special verdict in this case is held definite and certain, and sufficient to sustain the judgment. In the charge to the jury a misstatement of the law, made apparentlyby mistake, and not in ignorance of the law, and followed by a correct statement of the law on the subject, is not a prejudicial error as having misled the jury. In an action for damages for death of plaintiff's husband, where deceased was 57 years old, in fair health, and capable of earning $2.25 per day of 10 hours, and his family were, to a large extent, dependent on his labor for their support, a judg. ment of $2,500 will not be disturbed as excessive. Annes v. Milwaukee, etc. Co., S. C. Wis. Nov. 3, 1886; 30 N. W. Rep. 282.
.2 BANKS AND BANKING -- National Banks — In
crease of Stock-Change of Increase--Rights and Liabilities of Shareholders — Subscription-Payment under Seetion 5205, Rev. St. U. 8., not Discharge of Liability under Section 5157. Where a national bank undertakes to increase its capital stock a certain amount, and a smaller amount is actually paid in, it can reduce the amount of the increase to the amount actually paid; the amount of increase within the maximum being always subject to the discretion of the bank. Where a shareholder of a national bank subscribes to a certain increase of stock, and pays his subscription, and the bank afterwards reduces the amount of the increase, he waives all right to deny that his agreement binds him as a subscription to the reduced amount, when he pays on his new stock an assessment declared by the bank, after it has become insolvent, to prevent its business from being closed under the notice of the comptroller of the currency provided for in section 5205, Rev. St. U. S. The payment of an assessment imposed by a bank on its shareholders under section 5205, Rev. St. U. S., in order to continue business and avoid liquidation, is not a discharge of a shareholder's liability under section 5151, Rev. St. U. S., for the obligations of the bank to the extent of the amount of his stock at par value in addition to the amount invested in his shares. Delano v. Butler, S. C. U. S., Nov. 1, 1886; 7 S. C. Rep. 39.
4. COMMERCIAL Law-Promissory Note-Indorsement-- Accommodation-Usury – Affidavit of Desense--- Sufficiency of.-A having received a promissory note in the regular course of trade, indorsed it in blank, and handed it to B, without receiving any consideration therefor. B did not indorse it, but handed it to C, who indorsed it to D, the latter bringing suit thereon against A. A filed an affidavit of defense, alleging that the note, though in the possession of D, belonged to C, who knew that A had received no consideration, but that it had been indorsed for the accommodation B, and B was entitled to a credit on said note for C's failure to deliver a certain order, and for another amonnt, exacted by C as usurious interest. Held, that this was a substantial defense to a part of the note, and that the court erred in entering judgment for want of a sufficient affidavit of defense. Gunnis v. Weigley, S. C. Penn. Oct. 4, 1886; 6 Atl. Rep. 465.
3. CARRIERS — Limitation of Liability by Contract
- Free Pass-New Trial- Special Verdict Setting Aside Findings Negligence Degrees Special Findings Causing Death Evidence
Support Damages Appeal Harmle
5. CONFLICT OF LAW.- Promissory Note Governed
by Laws of State Where Made-Defenses-- Statute of State may Change Operation of Lar-Merchant.--Where promissory notes are made in Kentucky, and mailed to the payecs, doing business in Boston, and made payable at the Kentucky Nat
had not sufficient power of control to govern his action by reason of mental weakness, they should acquit, is not error. Farris v. Commonwealth, Ky., Ct. App., Nov. 14, 1886; 1 S. W. Rep. 729.
Murder Evidence Examination of Witness Confession Character of Deceased.-On trial for murder, the court, in its discretion, may permit the district attorney to call the attention of witnesses to particular facts after they have gone through the story of the crime without interruption. In a trial for murder, testimony of a witness as to the confession of a prisoner after arrest is admissible, where such confession is not made under the influence of fear produced by threats, nor upon any promise of immunity from prosecution. On a trial for murder the court may properly exclude defendant's offer of evidence to show in support of a plea of justifiable homicide, that the deceased had treated his domestic animals with cruelty. The testimony must be to general reputation, and evidence of specific acts is inadmissible. Testimony to general reputation, in support of a plea of justifiable homicide, to show that deceased robbed his father of his grave clothes, when in his coffin, and wore them at his funeral, is wholly irrelevant. People v. Druse, N. Y. Ct. App., Oct. 26, 1886; 8 N. E. Rep. 733.
ional Bank, they are contracts of that state, and are to be governed by its laws. The statute of a State which gives the maker of a note the right to set up in defense any discount or offset that the defendant has and might have used against the orig. inal payee, or any intermediate assignee, before notice of the assignment, is constitutional and valid, although it changes absolutely the operations of the law-mercbant, so far as it affects contracts made and to be performed within the State. Shoe, etc. Bk. v. Wood, S. J. C. Mass., Oct, 23, 1886; 8 N. E, Rep. 753.
6. CONSTITUTIONAL LAW-Title of Stutute-Subject. Embraced.—The Michigan act of 1883 (page 191), entitled “An act to provide for the incorporation of merchants' mutual insurance companies, and to regulate the business of insurance by merchants' and manufacturers' mutual insurance companies,” is obnoxious to the constitutional provision that "no law shall embrace more than one object, which shall be expressed in its title.” The first object, tbe incorporation of merchants' mutual insurance companies, and the second, the regulation of the business of insurance by merchants' and manufacturers' mutual insurance companies, bave no necessary connection with each other. Such a statute cannot be supported by maintaining it as to one of its objects, and rejecting it as to the other. Skinner v. Wilhelm, S. C. Mich. Nov. 11, 1886; 30 N. W. Rep. 311.
7. CORPORATION Corporate Stock Transfers
Lien of Corporation-- Additional Security-Corporate Liabilities–For Acts of Agents. Where the charter of a corporation provides that no stockholder indebted to the corporation shall be permitted to make any transfer of his stock, or receive any dividend, until such debt is paid, or secured to tue satisfaction of the president and board of directors, the corporation bas a legal lien upon the stock held by its stockholders to secure the payment of any debt that such stockholders may owe it. Where a corporation which, by its charter, bas a lien upon the stock of its stockholders for the payment of their indebtedness to it, takes from such debtors other security, it does not thereby, without affirmative evidence to the contrary, waive its lien upon the stock. An employee of a corporation who has no power to transact the general business of the corporation with third persons, and who is well known to bave no such power, cannot, by any act of bis, waive for the corporation the lien which its charter gives it on the stock of its stockholders for the payment of their indebtedness to it. Kenton, etc. Co., v. Bowman, Ky. Ct. App. Nov. 11, 1886; 1 S. W. Rep. 717.
Threats, Effect of, to be Considered by Jury-Admissibility of Dying Declarations-Res Gesta.-One against whom threats are made is not justifiable in assaulting the one who makes such threats, unless the latter makes some attempt to execute his threats. A mere intent to commit a crime is not a crime-an attempt to perpretrate it is necessary to constitute guilt in law. In an indictment where the plea of self-defense is interposed for murder, the jury are to consider threats made by the deceased, and his character as a turbulent and dangerous man, in determining the question as to who was the assailant, and whether the defendant had reasonable grounds to apprehend and did apprehend that be was in imminent danger of sustaining great bodily harm, and an instinction which ignores the considerations is improperly given. Declarations made by the deceased to his wife, very soon after he had been shot by the defendant, after he had gone about two hundred yards from the place where he had been shot, and after his wife had gone more than one hundred yards to join him, to either, “Oh, hun, he has shot me," or "Oh hun, he has killed me," (the wife not being clear as to which expression was used,) are not admissible as part of the res gestæ (1 Green, Ev. $ 108), nor as dying declarations. If the deceased bad said “Oh, bun, he has killed me," which, taken in connection with the nature of his wound, and the short time after the shot before he died, would tend to show that he was impressed with the fact that the wound would be fatal, thus bringing it within the rule that it was made “under a sense of impending death,” and hence rendering it admissible within the meaning of the rule of dying declarations. State v. Rider, S. C. Mo., Nov. 15, 1886.
8. CRIMINAL LAW--Homicide-Justification-SelfDefense-Killing Through Fear of Life-Insanity
Who Capable of Committing. Where the accused leaves the stable where the quarrel arose, and, having obtained a shot-gun at the family residence, returns, and shoots the deceased, the court will not reverse a verdict of manslaughter, the right of self-defense not authorizing one to hunt up his adversary, and slay him under the idea that it is necessary to save his own life. Where the defense of insanity is interposed, the burden of proof is on the defendant; and, where the accused did the killing in a state of mind bordering on imbecility, an instruction to the jury that if defendant's mind was so feeble as not to enable him to distinguish right from wrong, or
11. Receiving Stolen Property-Presumption
From Possession-Defendant Witness in His Oron
comes a witness in his own behalf he is subject to the same rules and may be impeached as any other witness, except that upon his cross-examination he can only be inquired of concerning matters he has testified to in his examination-in-chief. Witness as to character should not be permitted to give evidence as to single acts of moral delinquency. The possession by a defendant of stolen property recently after the theft raises a presumption that he stole it, but such possession by a person who is charged with receiving stolen property, “knowing it to be stolen," does not raise a presumption that he had knowledge that it was stolen. State v. Bulla, S. C. Mo., Nov. 15, 1886.
aside of a sale made under a deed of trust and for permission to redeem the property, for an accounting of rents and profits, and that tbe title be decreed to vest in plaintiffs on payment by them of the balance found to be due defendant, and for general relief, the fact that no tender of money due was made in the petition is not important. Where the suit is not brought for nearly three years after the sale, and where it appears that in the meantime defendant had repaired the premises, paid taxes and effected insurance, and the plaintiff being fnlly cognizant of all that had occurred, such laches will bar plaintiffs' suit. 63 Mo. 56; 2 Wall. 94; 94 U. S. 807; 91 U. S. 691; 67 Mo. 181. Courts of equity when enforcing legal or analogous rights, as in administering remedial justice, will generally adopt that limit of time prescribed by the statute of limitations (Adams Eq., 227), but when the relief sought is based upon a a right purely equitable, where it is cognizable alone in a court of conscience, that court acts solely upon its own inherent rules, altogelber outside of and independent of the statute of limitations. Where a plaintiff is a mere purchaser of the equity of redemption he can not prevail in the suit without paying off the debt, principal and interest, taxes, repairs, etc. Kline v. Vogel, S. C. Mo. Nov. 17, 1886.
12. DAMAGES – Penalty or Liquidated Damages
Breach of Contract -- Fixed Sum, When a Penalty. -Where H sells his business and good-will to G, and, as a part of the same transaction, executes a written instrument, in which he says: “I * bind himself in the sum of $500" that I will not engage in such business, at the same place, for the period of five years: held, that the sum named in the instrument is a penalty, and not liquidated damages; and, for a breach of the agreement by H, G may recover only his actual damages. Whenever a party binds himself in a fixed sum for the performance or non-performance of something, without stating whether such fixed sum is intended as a penalty or as liquidated damages, and without regard to the magnitude or the number of any breaches that might occur, or the amount of damages that might ensue, and the contract is such that it may be partially performed and partially violated, such fixed sum must be considered as a penalty, and not as liquidated damages. Heatwole v. Gorrell, s. C. Kans., Nov. 5, 1886; 12 Pac. Rep. 129.
16. EQUITY-Sale by Order of Court-Confirmation
-Lands Held in Fee-Simple.-In an equitable proceeding, under the Kentucky Civil Code, $ 491, by the owner of a life-estate against the owners of the remainder, for the sale of the lands, where it appears that two tracts of land are directed to be sold, and that one of these tracts is held by the petitioner in fee-simple, and the court had no power to direct a sale of it, the order confirming the sale cannot stand; but, before setting it aside, the court will give the petitioner a reasonable time within which to tender a deed' of conveyance sutficient to pass the title of the tract held in fee. simple, and if such deed be tendered, will confirm the sale, but if not tendered, will set it aside in toto. Munnell v. Orear, Ky. Ct. Appls., Nov. 13, 1886; 1 S. W. Rep. 725.
13. DRAINS-Notice-Estoppel-Signing Petition.
Where land-owners are parties to a petition to establish a ditch of which some notice, although insufficient, is given, and they have actual knowledge of such petition, and the proceedings thereunder, they will, in case they permit without objection, money to be expended on the faith that such proceedings were valid, be precluded from afterwards questioning the sufficiency of the notice. Peters v. Griffee, S. C. Ind. Oct., 30, 1886; 8 N. E. Rep. 727.
14. EJECTMENT- Pleading-General Denial-Evidence-Equitable Defense-Defense of Equitable Title in Stranger.-Under a statutory general denial in an action for recovery of real estate, any facts which show that according to the principles of equity, as applied by courts of chancery, the plaintiff ought not to recover possession of the land in controversy, may be given in evidence to defeat a recovery. In an action to recover possession of real estate, the defendant in possession cannot defend on the ground that a stranger, with whom he is not in privity, is the equitable owner thereof, and entitled thereto by reason of a mistake in a deed by which it was intended to convey the real estate in controversy to such stranger, but under wbich the defendant makes no claim. East
v. Pedin, S. C. Ind., Oct. 27, 1886; 8 N. E. Rep. 722. 15. EQUITABLE ACTION ro REDEEM-Absence of
Tender Unimportant - Laches, When it Has Rights-Limitation, Analogous Rule to Law Not Followed, When-Purchaser of Equity of Redemption, When - Permitted to Redeem.-In an equit. able proceeding having for its object the setting
17. EVIDENCE-Dying Declarations - Homicide
Appeal-Absence of Notive-Conduct of TrialRelative of Deceased Advising the Prosecuting Attorney-Criminal Law-Prosecution Calling Witness After Closing-New Trial-Newly-Discovered Evidence-Cumulative-Ignorance of,. Not Elplained.- Repeated declarations of deceased that the accused was his murderer, made in full knowl. edge that he would have to die in a few hours, are admissible. Where the question is whether it was the accused who committed the offense, and the evidence points with almost unerring certainty to him as the guilty party, a verdict of guilty will not be disturbed because no motive appeared or is suggested for the act. Permitting a witness who is a kinsman of the deceased, to be present at the trial, and advise with the prosecuting attorney, is not error. Where the prosecution, after it has closed, is permitted to call another witness, whose testimony proves to be stronger for the accused than against him, and there is no error of which he can complain. When newly-discovered evi. dence, on which a motion for a new trial is based, is only cumulative testimony, and that of intimate friends of the accused, and no reason is assigned why their testimony was not made known to him and his attorney during the trial, the motion will
be denied. Marcum o. Commonwealth, Ky. Ct.
Appls., Nov. 13, 1856; 1 S. W. Rep. 727. 18. EXECUTORS AND ADMINISTRATORS Action
Against, in Regard to Settlement of EstatesHeirs and Distributees-Surcharge and Falsification-Limitation of Action Against-Exceptions. -The heirs and distributes of the estate of a father or a mother cannot maintain a suit to sur. cbarge the accounts of the administrator of their grandfather's estate. The grandfather's distributees, or, after their death, their personal representatives, are the proper parties plaintiff for that purpose. Where an administrator bas made a final setllement of his accounts, and twelve years afterwards a suit for surcharge and falsification is brought by plaintiffs without showing themselves, by allegation or proof, to be within the exception of the statute of limitations, the statute will be a bar to the suit, and no relief will be granted. Hordage v. Hordage, S. C. Ark., Oct. 23, 1886; 1 S. W. Rep. 707.
convey lands, defendant cannot avail himself of the statute of frauds as a defense, unless the want of compliance with the statute appears upon the face of the pleadings. Where, in pursuance of an agreement for the exchange of lands, one party has conveyed, this is such part performance as will take the case out of the operation of the statute of frauds. In determining who is an interested witness, and therefore incompetent, under the statute, as to transactions with deceased persons, as against representatives, the test is whether the witness will either gain or lose by the direct legal operation and effect of the judgment, or whether the record will be legal evidence for or against bim in some other action. McClure v. Otrich, S. C. Ill., Oct. 7, 1886; 8 N. E. Rep. 784.
19. Bill to Set (Aside Fraudulent Convey
ance--Parties Purchaser Knowledge of or Participation in Fraud.—Where a bill is filed by an administrator, under the Michigan statute, against several grantees holding by convey. ance from one to the other, to set aside a deed made by his decedent as fraudulent as to creditors, and to subject the property to the payment of his debts, if the tirst grantee who disposes of the same by a warranty deed is not also made a party, the bill will be dismissed. To render a conveyance void for fraud upon creditors, it is necessary that the grantee should have a knowledge of, and in some way participate in, the fraud. Fraser v. Passage, S. C. Mich., Nov. 11, 1886; 30 N. W. Rep. 324.
23. INSOLVENCY-Liability of Assignee-- Omission
from Dividend of Accounts Properly Filed, but Misplaced. The assignee of an insolvent estate is responsible for the exercise of good faith and reasonable diligence in the administration of his trust, and such is the measure of his liability. Accordingly, where an assignee used reasonable diligence in searching for and in endeavoring to ascertain what releasesof their claims against an insolvent bad been filed by creditors with the clerk in pursuance of the statute, and the releases of certain creditors which had been actually filed, but had been, by mistake, misplaced among the files in another case, and of the filing of which no notice was given him, were not found, and did not come to the knowledge of the assignee till after the distribution bybim in good faith, upon an order of the couri, of the assets among the other creditors who had filed releases, held, that such assignee was not personally liable for the amount of the dividends claimed by the creditors so omitted in such distri. bution.-In re Robbins, s. C. Minn., Nov. 9, 1886; 30 N. W. Rep. 304.
20. Insolvent Estates - Recognizance in Par
tition Not Saiisfactory by Fact of Insolvency.The fact that a decedent's estate is insolvent does not, by operation of law, satisfy a recognizance given by one of the heirs to the others upon partition proceedings in the course of administration. Appeal of Gabler, s. C. Penn., Oct. 18, 1836; 6 Atl.
Rep. 449. 21. FRAUDULENT CONVEYANCES-Presumption of
Fraud-Creditor's Bill.-- Where a creditor takes a chattel mortgage on the goods of a trader to secure a debt subject to a prior mortgage, but omits to file his mortgage for five months, and subsequently purchases the prior chattel mortgage, and a further debt for which the owners had attached the goods, and holds possession by virtue of such purchase till the debtor has given him a mortgage covering all the debts, and the debtor then transfers his business and goods to his wife, who assumes his debts, such transactions do not raise such an irresistible presumtion of frand as will entitle a judgment creditor (who had sold the debtor goods during the interval between the execution and filing of the first-mentioned mortgage) tu subject the property to his judgment; the fraud being denied, and such judgment creditor having obtained no lien upon the property. Krolik v. Root, S. C. Mich., Nov. 11, 1886; 30 N. W. Rep. 339.
24. INSURANCE-Fire Insurance-Action- Evidence
--Opinion-- Value of Horses. Where the question, whether the defendant had an insurance on certain property or not, arises incidentally in the case, and the plaintiff proves that he had, and the defendant afterwards, by his own testimony, shows that he had, it is immaterial whether the evidence showing in the first instance that he had such an insurance is competent or not. Where a witness is shown to have been a farmer and a livery-stable keeper, and that he has dealt in horses, and has some knowledge of the value thereof, he may testify with regard to the value of particular horses which he has known and owned; and it will generally be presumed, in the absence of evidence to the contrary, that a dealer in any particular kind of articles has sufficient knowledge of the value of such articles that he may testify with regard thereto. Reed v. New, s. C. Kan.,
Nov. 5, 1886; 12 Pac. Rep. 139. 25.
Authority of Agent - Alteration of Policy-Application for Alteration in Policy. – An agent or broker of a fire insurance company who has been authorized to deliver a policy issued by it, and to receive the premium therefor, has no power or authority, unless expressly conferred, to bind the company, by subseq'iently altering the contract of insurance, by the insertion of a clause binding the company to pay the loss to one other than the assured, though such policy was written upon the application of the agent for the assured. An agent receiving from the assured an application for a change in a policy of insur
22. FRAUD-Statute of Frauds—Pleading-Suit for
Specific Performance - Part Performanco-Exchange of Lands— Witness — Transactions With Deceased Persons--" Interested Witness " Defined. In a suit for specific performance of a contract to
ance, and undertaking to procure such change, is to be treated as the agent of the assured, and not of the company.-Duluth, etc. Bank v. Knoxville, etc. Co., S. C. Tenn., Oct. 30, 1886; 1 S. W. Rep. 689.
erection and maintenance of a dam, the plaintiff, who has given the notice required by that act, may introduce evidence tending to show that after suit brought the defendants persisted in continuing and strengthening the dam, which constituted the alleged nuisance. In an action for overflowing the plaintiff's land by the erection of a dam on the defendant's land, where the nature and extent of the alleged injury are specially described in the declaration, the failure to prove the damages as alleged, does not prevent the recovery of nominal damages. Where the plaintiff in an action of trespass on the case for a continuing nuisance gives 15 days' notice, under the Pennsylvania act of May 2, 1876 (P. L. 95), he is entitled to recover such damages, not barred by the statute of limitations, as he bas suffered up to the time of trial. This act is to avoid a multiplicity of suits, and the damages suffered between the bringing of the suit and the trial, do not constitute a new cause of action.Humphrey v. Irvin, s. C. Penn., Oct. 4, 1886; 6 Atl. Rep. 479.
26. JUDGMENT-Court of General JurisdictionPresumption-Lapse of Time-Execution-SaleSheriff's Return-Amendment-Confirmation of Sale-Trusts-Resulting and Secret Trusts-Infants - Disaffirmance of Contract – Reasonable Time-Statute of Limitations-Retroactive Laws -Deeds-Execution in Foreign State-Evidence -Certification.-Where a court of general jurisdiction has rendered judgment in a case, under which the real estate of one of the defendants has been levied upon and sold, and the sale confirmed, and a deed made to the purchaser, the court will not, upon slight evidence, after a great lapse of time, hold that it was without jurisdiction. The court, in furtherance of justice, may, after a sale of real estate upon execution and a return of the officer, permit the officer to amend the return to conform to the facts; and, where it is clear that the amendment should be made, the lapse of eight or nine years will not bar the right, but in such case care must be exercised by the court to prevent an abuse of power. In this State the confirmation of the sale covers all irregularities in the proceedings. Lands conveyed by a warranty deed are not subject to a secret trust in favor of the grantor; and particularly is this true where the lands are afterwards sold at judicial sale as the property of the granter, and conveyed to an innocent purchaser. A minor who has conveyed his real estate must disaffirm his deed within a reasonable time after he comes of age, or be barred of the right. The act of 1869, which reduced the period of limitation in which an action to recover real estate could be brought from 21 years to 10 years, and gave a reasonable time in which to bring actions before it took effect, applies to causes of action existing before the passage of the statute. A deed of real estate executed in another State before an officer having no seal, to be admissible in evidence, must be certified in the manner provided in the statute.-O'Brien v. Gaslin, s. C.
Neb., Nov. 4, 1886; 30 N. W. Rep. 274. 27. NEGLIGENCE-Contributory Negligence – Em
ployment on Railroad Track.- Where the engineer of a railroad company on an overdue train descries a man on the defendant's track three-quarters of a mile ahead, going in the same direction, on a straight track, in broad daylight and blows his whistle and rings the bell, but, tbe man apparently taking no notice thereof, and continuing to walk on the track, the engineer kvocks down and kills him, there is no excuse shown for running the engive over him, even if the man bad turned and faced the train; and the deceased, being an employee, and rightfully on the track, will not be held guilty of contributory negligence that would prevent a recovery of damages by his administrator.Baumeister v. Grand Ripids, etc. Co., S. C. Mich., Nov. 11, 1886; 30 N. W. Rep. 337.
29. Post-OFFICE Railroad Companies – Land
Grant-Postal Service Contracts-Contract Im. plied From Service-Government Mail Contracts - Postal Regulations.- Where, in the condition for the carrying of the United States mails, attendant upon the land grant to a railroad corporation, the postmaster-general is empowered to establish the price until tixed by congress, such power includes the power to prescribe the period of its duration which is in his discretion, unless collateral stipulations, which could not be enforced without consent of the company, are annexed to the agreement with him. In that case a contract is created which cannot be disregarded by the government without a breach of good faith. The plaintiff, a railroad company, carried the United States mails for four years under a written contract with the postmaster-general. It was bound to carry the mails, under the terms of its land grant, at such prices as congress should, by law, direct. After the expiration of the written contract the company continued to perform the same services for four years more, receiving pay for some months at the old rate, then at a reduced rate fixed by the postmaster-general, and then at rates reduced twice successively by acts of congress, of which the plaintiff received notice. Held, on action to recover the difference between the rates as reduced by congress, and the rate fixed by the postmaster-general, no right could be implied against the government from the continuance of the services, nor was plaintiff bound by the terms of its written contract. A regulation of the postoffice department that contracts in a section of the country are to be let for four yeurs, cannot be held to impose any obligation on the post master-general so that a contract, to be implied from services rendered after the expiration of a written contract, should be construed to last four years, but is merely desiyned to further the administration of business.-Jacksonville, etc. Co. 0. United States, S. C. U. S., Nov. 1, 1886; 7 S. C. Rep. 48.
28. NUISANCE-Overflowed Land- Trespass-Con
tinuing Nuisance Notice Evidence-Pennsyl. vania Act May 2, 1876 - Special Damage Claimed – Nominal Damages Recovered – Damages to Time of Trial. -- The object of the Pennsylvania Act of May 2, 1876 (P. L. 95), is to avoid multiplicity of suits, and in an action of case by the owner of land overflowed by the unlawful
30. Railroad Company-Master and Servant--Act.
ion to Recover for Personal Injuries Sustained by Servant-- Pleadings-- Allegations of Negligence in Petition--Evidenee Supports Action--Contrib. utory Negligence--Danger of Risk to Servant by Continuing the Employment- When Question for Jury.-In an action against a railroad company by its former servant to recover damages for personal