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Defective Sidewalks Notice Negligence Question for Jury Contributory Negligence Derective Sidewalk Constructed by Oroner. Before a city or other municipal corporation will be liable for injuries caused by a defective sidewalk, it must be shown that the city by its officers had notice of the defect, or that such defect had existed so long and under such circumstances as to raise the presumption of knowledge. But where a portion of the sidewalk is in bad condition by reason of loose boards and defective construction, it is not necessary that the city or its officers should have notice that the particular board which caused the injury was loose. Notice of the general bad condition of the walk at that place will be held sufficient. In an action for damages resulting from personal injuries caused by the alleged negligence of the defendant, the question of contributory negligence on the part of the plaintiff is, ordinarily, one of fact for the jury to determine, under proper instructions from the court. Where a sidewalk is constructed on a public street or thoroughfare in a city by an abutting property owner, without any direction or order by the officers of such city, the fact of such construction by the property owner without authority would not relieve the city from liability for damage to persons injured thereon without fault, if after the construction of such walk the city assumed jurisdiction over it, and ordered repairs to be made prior to the accident. Nor would the city be released from liability, even though it did not assume jurisdiction, if the walk was in a public street in constant use, and in the line of other sidewalks, constructed by direction of the city, or over which it had control. City of Plattsmouth v. Mitchell, s. C. Neb. Oct. 6, 1886; 29 N. W. Rep. 593.
13 EASEMENT-Sever Through Adjoining Premises
- Construction of Deeds-Tenants in CommonEstoppel — Contract To Grant EasementAcceptance of Deeds-Waiver of Breach.-Where A, having contracted to convey to C a house adjoining land owned by himself and B, and the use of a sewer running from the house “through his other land adjoining," gave a deed merely referring to the sewer by reserving to himself “the right to connect sewer-pipes with a sewer,” and afterwards A and B conveyed the adjoining land to D, “together with the right to connect sewerpipes with the sewer,” and “subject to such rights, if any, as said C has to maintain a sewer across said premises,” held, that as against D and his grantees, C had no easement to maintain a sewer across the premises adjoining his house; for, if the deed of A purported to convey such an easement, yet B was not a party to it, and if he could be held bound on the theory of ratification or estoppel, such estoppel would not extend to his grantees. Where A agreed to convey to Ca house, and the use of a sewer “ through his other land adjoining," and in performance of that agreement gave a deed only referring to the sewer by reserving to himself “the right to connect sewerpipes with the sewer,” and, being in fact ily tenant in common of said adjoining land with B, afterwards joined with him in a deed thereof to D, so that C acquired no permanent right to maintain the sewer, held, that there was a breach of A's contract with C, and that the acceptance of the deed by C did not preclude him from maintaining an action for such breach. Butterfield v. McNamara, S. C. Conn., June 18, 1886; 6 Atl. Rep. 188.
11. CRIMINAL LAW-Homicide-Murder-Indict.
ment-Evidence-Hearsay-Exclamations of Bystanders – Deposition - Proceedings to Take Commissions.-An indictment for murder which fails to allege that the act of killing was feloniously committed, is fatally defective. The exclamations of by-standers on the spot where a murder has been committed, giving expression to the opinion that the appellant ought to be hung, are clearly hearsay, and not admissable in evišence. There is no inherent power in a common-law court to issue commissions to take depositions to be read in behalf of litigants in a civil or criminal case; the right to take and use depositions of witnesses in behalf of the defendant in a criminal case is statutory, and does not exist in cases not provided for by the legislature. Kaelin v. Commonwealth, Ky. Ct. Appls., Oct. 19, 1886; 1. S. W. Rep. 594.
14. EMINENT DOMAIN Railroad Statute
Nuisance.-The statutory sanction which will justify an injury to private property must be express or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legis lature contemplated the doing of the very act which occasioned the injury. If a railroad company has the right, under an act of the legislature, to acquire land by purchase (for the accommodation of its business), it must secure such a location as will enable it to conduct its operations without violating the just rights of others. Assuming that the general power given by the Laws of 1848, chap. 143, $ 6, to the New York & New Haven R. R. Co. to run its trains into New York City over the New York & Harlem Railroad includes, as incidental thereto, the power to purchase land for an engine house, it does not sanction the maintenance of a nuisance, injurious to private property, resulting from the building and use of an engine house. Cogswell 0. New York, etc. Co., N. Y. Ct. Appl. Oct 5. 1886; 4 Cent. Reps. 225.
12. DEED-Construction-Conditions-Statute of
Limitations-Equitable Lien-Courts-Probate Court-Jurisdiction.-One who accepts a deed accedes to all its terms, and he cannot hold to the beneficial, and repudiate the burdensome, part of the conveyance. The seven-years' statute, which bars the recovery of possession of real estate, has no application to a recovery upon an equitable lien. The probate court has no jurisdiction to declare a lien upon land, or to render a personal judgment for the recovery of money. Dismukes 0. Halpern, S. C. Ark., Oct. 2, 1886; 1. S. W. Rep. 554.
15. EXECUTORS AND ADMINISTRATORS-Suit of
Bond - Jurisdiction-Parties-Courts–Jurisdic. tion of Texas District Court-Probate Orders. A suit to recover from the sureties on the bond of an administrator may be brought in the district court, when the amount involved amounts to $500, exclusive of interest, and, if the administrator is dead, and an administrator de bonis non has been appointed, he is plaintiff in the suit; but in case there is no such appointment,and there are no debts
the heirs or other distributes of the estate may institute the action. While the Texas constitution deprives the district court of power to revise the orders of the county court by an original proceeding, it does not thereby prohibit an exercise of its acknowledged jurisdiction, because the probate orders of the county court may be a necessary part of the pleadings and evidence in a cause. Fort v. Fittes, S. C. Texas, Oct, 19, 1886; 1 S. W. Rep. 563.
16. FRAUD—Fradulent Representation to Secure
Wife's Signature to a Mortgage of Homestead.The fact that a wife signed a mortgage of the homestead un misrepresentations to her by her husband as to the claim it was given to secure, but nothing was done to prevent her from reading it, or to mislead her in regard to its contents, does not affect the mortgage in the hands of the payee of the note.secured by it, if he was innocent of the fraud. Miller v. Wolbert, s. C. Iowa, Oct. 19, 1886; 29 N. W. Rep. 620.
terms, if he is familiar with the designation, without the objection of his being called on to construe the policy, or to determine what goods are covered by the description. Where a defense is pleaded in answer to a complaint, and the issue thereon is fairly and fully presented in an instruction, it is as well presented in that connection as though it had been found in the statement of the pleadings and issues preceding the instructions. If, in an action on a fire insurance policy, there is no controversy at the trial as to the valuc of the property, and the plaintiff testifies that she paid a certain sum for it, and its value is stated at that sum in the application for insurance, in the absence of any evidence or claims to the contrary, the jury may find its yalue in that sum. Where, in an action against a fire insurance company, the company pleads the existence of a mortgage, and the plaintiff replies that when the insurance was effected she fully explained it, and further replies that any breaches of the condition of the policy which may have occurred were waived by the act of the assistant secretary of the company in requiring and tak. ing proof of loss, which he pronounces sufficient, at the same time informing plaintiff that the loss would be paid, she is entitled to recover in the action. In an action against a fire insurance company, the court need not instruct the jury as to agent's authority to do certain acts on which a claim of waiver is based, where the reply of plaintiff pleads a waiver, which is not denied. The forfeiture of a policy of insurance on account of a breach of its conditions may be waived, and when the waiver is made, it will have the same binding force it originally possessed; following Vide o. Germania Ins. Co., 26.Iowa, 9. In an action against a fire insurance company, knowledge of facts pos. sessed by an agent is chargeable to the company. The verdict of a jury will not be disturbed because the evidence may be meager, or does not satisfy the mind of the court. Siltz v. Hawkeye Ins Co., S. C. Iowa, Oct. 19, 1886; 29 X. W. Rep. 605.
17. HUSBAND AND WIFE-Separate Estate-Action
-Averment s–Assumpsit- Afidavit of DefenseBook-Account-Commissions-Error-Feme Covert. An allegation that the debt contracted for any act done for a married woman was at her instance and request is not sufficient; it must be averred, in some suitable language, that the act done was a necessity. A copy of a book-account charging commissions for the sale of a house, and items of money paid, is not within the affidavit of defense law. The statute limiting time within which a writ of error may be sued out does not apply to a feme covert. Fenn v. Early, s. C. Penn., Oct. 4, 1886; 6 Atl. Rep. 58.
18. INJUNCTION—To Restrain an Action for Tres
pass-Lis Pendens-Specific Performance of Contract.-A husband, as agent of his wife, sold certain land, the purchaser taking possession, and a portion of the purchase money being given, the balance to be paid on a stated day, and a deed to be executed therefor. Shortly before said day the wife denied this agency, repudiated the sale, and about the time of the commencement of an action for the specific performance of the contract, and the filling of the lis pendens, made a deed to another person. Soon after, instigated by the second purchaser, one of the defendants entered the barn on this land, and had the first purchaser arrested for trespass, who tendered his purchase money, and demanded a conveyance. An injunction was sustained restraining the defendants from taking possession, and from prosecuting the trespass suits during the pendency of the other action. Hadfield v. Skelton, S. C. Wis., Oct., 12, 1886; 29 N. W. Rep. 639.
Waiver – Limitation-Subsequent Agreement --“Vacant and Unoccupied "-Increase of Risk-Forfeiture-Question for Jury-Vacancy Unknown to Assured.--In an action on a policy of insurance begun in the United States Circuit Court within the time limited in the policy for bringing suit, an agreement by the parties to enter an action in this court and prosecute it here, after the time limited in the policy has expired, is a waiver by the defendant of that limitation. A stipulation in a contract of fire insurance that the policy shall be void “if the building shall be occupied or used so as to increase the risk, or become vacant and unoccupied for a period of more than ten days, or the risk be increased by any means whatever,” includes such a desertion of the premises and removal from them as would materially increase the risk; and the words“ vacant and unoccupied ” are equivalent in meaning. When the natural interpretation of the undisputed facts show that the insured building was “vacant and unoccupied," within the meaning of those terms as used in the policy, and there is no evidence to rebut or modify tbat conclusion, it is error to submit the question to the jury. If an insured building becomes “vacant and unoccupied,” under the terms of the contract of insurance, by the removal of a tenant from it, without the knowledge of the assured, the increased risk is still “ within the control of the assured,” and his ignorance of the vacancy is no
19. INSURANCE-Fire Insurance-Action-Evidence
-Value of Goods Destroyed-- Trial-ComplaintAnswer-Instruction-Action- Value of Property -Evidence-Policy - Wairer-Breach of Conditions- knowledge of Agents-Appeal-Effect ofEvidence.-In an action against a fire insurance company, the admission of the statements in evidence of a soliciting agent, proved to be an officer and stockholder of the company, if error at all, is error without prejudice. In an action against a fire insurance company, a witness may testify as to the value of goods destroyed, designated by certain
excuse. Moore v. Phønix, etc. Co., S. C. N. H., July 30, 1886; 6 Atl. Rep. 27.
21. Life Insurance-Insurable Interest-Support-Amount-Balance Estate of Insured Public Policy-Speculation - Motive.-Where one contracted to support another for life in consideration of a policy of insurance on the life of the lat. ter for the benefit of the former, the party who furnished support had an insurable interest, like an ordinary creditor, for the just amount of his claim for support, the balance belonging to the estate of the insured. The rule of law respecting insurable interest being founded on considerations of public policy, it was error in the court to charge the jury that the question raised in the above state of facts was entirely one of fact, namely, whether it was a specnlation on the life of the insured, or a bona fide tranaaction upon, benevolent motives. Siegrist v. Schmoltz, S. C. Penn., Oct. 4, 1886; 6
Atl. Rep. 49. 22. LAND-Public Lands-Title to-Presumption
Estoppel-Vendor and Purchaser-Exception to the Rule-Public Policy-- Const. Ark. 1868Act of Congress, May 20, 1862.-The United States government is the original source of title to lands in Arkansas, and the presumption of law is that the title remains with the government until some other disposition of it is shown; and where a man sells land in that State, claiming to have derived it from the State upon a swamp-land grant, and at the same time, according to the books of the United States land-office, the land was vacant and subject to homestead entry under the federal laws, the presumption is that the grantor had no title, and a note given for the purchase money is void. The general rule that a purchaser of land entering into possession under his contract of purchase cannot, in an action to foreclose a vendor's lien, so long as he retains possession, deny his vendor's title, does not apply to proceedings to collect a note given for the purchase money of land bought from the plaintiff and subsequently entered as a homestead by a resident of Arkansas under the federal laws; such a contract being against the policy of the State constitution of 1868, and the act of congress of May 20. 1862. Sherman v. Eakin, S. C. Ark., Oct. 9, 1886; 1 S. W. Rep., 559.
that marked on the plat. Hoffman v. Clark, S. C.
Mich., Oct. 14, 1886. 24. MORTGAGE-Deed by Son-in-Law and Wife,
Absolute on Its Face, to Father-in-Law-Evidence-Sufficiency of — Intention-ForeclosureConsideration-Interest-Witness-Facts Equal. ly within the Knowledge of Deceased-Declarations of Deceased Grantee.--Where a son-in-law is indebted to a father-in-law, and executes to the latter, in his life-time, a deed of conveyance for certain property, in which the wife of the son-inlaw unites, such conveyance, though absolute on its face, may be proved to be a mortgage, and his executors may file a bill in equity for a foreclosure of the same, and apply the proceeds to the payment of the debt. Evidence in this case examined, and held sufficient to show that the instrument was intended to operate as a mortgage. In a suit in equity to foreciose a mortgage, it is not necessary to show that any particular time was agreed upon when the mortgage was to be paid, nor to show what interest it was agreed the mortgagor should pay. In the trial of a suit in equity to foreclose a mortgage executed by a husband and wife to a mortgagee or grantee who has died, evidence of husband and wife, so far as it relates to facts equally within the knowledge of the deceased grantee when living, is not admissible under How. St., $ 7545. Where a suit is brought by the executors of a grantee or mortgagee, to have a deed which is absolute on its face declared a mortgage, and to foreclose the same for the payment of the mortgage debt, the declarations of the grantee or mortgagee, made after the deed was made, of his intention to hold the property under the deed, or any facts tending to show after-intention, are only admissible in evidence, so far as they tend to prove the original intention at the time the instrument was made. McMillan v. Bissell, S. C. Mich., Oct. 11, 1886; 29 N. W. Rep. 737.
23. LANDORD AND TENANT-Tenancy at Will
Notice to Quit- Ways-Ascertaining Road by Reference to Plat-Evidence.—Where the defendant sold a house to the plaintiff, and reserved the possession and use thereof four months, as part of the consideration of the sale, but continued to occupy it after the expiration of that time without any special arrangement, the consent of the plaintiff to such occupation was implied, and the defendant became a tenant at will, entitled to three months' notice to quit, in the absence of an agreement
to pay rent at shorter intervals, before action could be brought for possession. Where, on account of the washing away of the shore of a lake, a house had been twice moved back, and a controversy arose as to the ownersbip of the land on which it stood, which had been described with reference to a certain lake road, the location of which was in question, it was held that the plat, as filed with the register of deeds, should govern in determining where said road should be, unless the jury were satified that it was actually laid out at a different point from
Prior Incumbrance Indexing Record- Constructive Notice-Notice of Prior Incumbrance-Vendor and Vendee - Rescission of Sale of Land- Vendor Taking Timber Claim in Payment-Tender-Jurisdiction-Sale of Land.Where, at the time of recording a mortgage upon land, there was an agreement on record creating and reserving to the mortgagor's grantor, the former owner, a contingent interest in the land, and the mortgagor's name was indexed as grantor, and that of the former owner as grantee, held, that the record imputed constructive notice to the mortgagee of the existence of the agreement. Where a deed drawn January 5th was not fully executed till January 15th, and agreement reserying and creating in the grantor a contingent interest in the land referred to the deed as made on the 5th of January, both the deed and agreement having been recorded, held that, as there was but one deed from the grantor to the grantee on record, the agreement and deed appeared to be connected, and a subsequent mortgagee could not be heard to say that he had no notice of the agreement. In rescinding a sale of land, part of the consideration of which was a timber claim which proved to be not as represented, the vendor made the following tender; "I hereby tender back all the interest which I received from you in said timber claim.” Held, that the tender was sufficient, and it it was not necessary to tender a deed of the
land covered by claim, no title ever having passed from the United States. Part of the consideration on the sale of certain land was a timber claim assigned by the purchaser to the vendor. At the same time there was a written agreement between the parties that if the purchaser's representations to improvements, etc., upon said claim should prove untrue, that the trade might be rescinded, and vendor's deed canceled. The representations proved untrue, and the vendor began an action in equity to cancel the deed, and to quiet his title. Held, that the action was not a claim of forfeiture for breach of condition subsequent, but a claim of right of rescission, under an agreement, for a cause existing at the time of sale, and that equity had jurisdiction. Paige v. Lindsey, S. C. Iowa, Oct. 20, 1886; 29 N. W. Rep. 615.
26. NEGLIGENCE-Obstructing the Sidewalk--Injury
to Pedestrian-Court and Jury-Contributory Negligence Crossing Skid – Presumption.Whether an obstruction to travel, along a street or sidewalk, as by placing a skid across the sidewalk to load merchandise from a store into a wagon, is reasonably necessary, is usually a question of fact for the jury; and where plaintiff seeks to recover for injuries received in attempting to cross such a skid, the merchandise to be loaded being alleged to to have been packed “in kegs of the capacity of about five gallons each," and "each package weighing less than fifty pounds,” it cannot be held, as matter of law, that such use of the sidewalk was reasonable, and that, therefore, no cause of action is stated. In action to recover for injuries received by plaintiff in crossing a skid placed across the sidewalk by defend. ants, the fact that plaintiff attempted to cross the skid does not raise a presumption of contributory negligence on his part. Jochem v. Robinson, S. C. Wis., Oct. 12, 1886; 29 N. W. Rep. 640.
statute or ordinance upon the subject, the absence of a flagman at a railroad crossing may be shown in evidence, in an action to recover for an injury received at the crossing after dark, to be considered by the jury, in connection with all the cir. cumstances of the case, upon the question of defendant's prudence or negligence in running a train at the time and place in question. Hoye o. Chicago, etc. Co., S. C. Wis., Oct. 12, 1886; 29 N.
W. Rep. 646. 28. PLEDGE AND COLLATERAL SECURITY-Note
Judgments — Mortgage-Foreclosure Satisfaction of Debt.-K takes an assignment of a mort. gage, paying therefor the principal sum for which the mortgage was given. He also pays off two judgments against the land covered by the mort. gage; taking, as collateral security for the pay. ment of the judgments, interest, and costs on the mortgage, a note given by E B, W B, and J S. JS died after K had recovered a judgment on the note. L the administrator of JS, by order of court, proceeded to sell the real estate; B, the complainant, purchasing. K realized from the land he held the mortgage against within $450 of the full amount due him on mortgage and judg. ment. This $450 was tendered him by L but K refused it, and issued execution against the lands bougbt by the complainant, and claims the full amount of the judgment; he holding that the agreement under which he accepted the collateral security being “security to certain amount, not for a certain amount.” Held,
payment of the $450, the claim of K is satisfied, and that not even technical use of the words “to” and “for" will bear the defendant's construction. Burd 0. Keyser, Ct. of Chancery N. J., Oct. 13, 1886; 6 Atl. Rep. 18.
Railroad Crossing--Negative Testimony-Court and Jury-Looking and Listening for Train-Presumption-Flagman at Crossing -Evidence.-Where in an action against a railroad company to recover for the death of plaintiff's intestate, who was run over by a train of freight cars, which were backing over a street crossing after dark, it was claimed by defendant, and testified to by its witnesses, that the bell was rung from the front of the train, and switchman with a light guarded the crossing; but several witnesses testified for plaintiff that they saw the train cross the street, but did not see a light displayed on the crossing, or near the end of the train, although they could have seen it if there had been one, and other witnesses, although several hundred feet away, testified that they did not hear a bell rung; and the testimony of the train hands was lacking in precision as to just where the switchman was with the light when the train crossed the street, and was confused and contradictory as to the management of the train; and other evidence tended to support plaintiff's theory: held, that a verdict for defendant should not have been ordered by the trial judge. Although plaintiff's intestate, who was killed at a railroad crossing, must have known of the crossing, yet it cannot be conclusively presumed, from the fact of the accident, that she faiied to look and listen as she should have done before attempting to cross, and so was guilty of contributory negligence. Although there is no
29. SALE-Action for Price of a Horse-Power
Rescission for Breach of Warranty to be Made in Reasonable Time – Trial – Effect of Accepting Judgment - One Note Where Suit is Brought on Two-Waiver of Appeal.--In an action for the price of a horse-power and separator, which were sold with the warranty that the machine was well made, of good material, and was of as light draught as any other machine in the market, the warranty to be in force for a year, the defendant cannot set up the defense of a breach of warranty where he had failed to notify the seller of a defect within the warranty, and to return the machine within a reasonable time after the discovery of it. A plaintiff who has brought suit on two promis. sory notes does not, when the defendant admits a liability on one, but pleads a defense against the other, by accepting the amount which is admitted to be due, waive his appeal from a judgment which is adverse to him on the other note, Upton, etc. Co. v. Huiske, S. C. Iowa, Oct. 15, 1886; 29 N. W. Rep. 631.
Bill of Sale-Executory and Erecuted Contract — Consideration – Appeal – From Jus. tice's Court-Jurisdiction of Supreme Court.Where, by a written contract, one party sold for a certain sum a crop of cotton and agreed to deliver it at a stated place as fast as gathered, the contract was held executory as regards the delivery, but executed as to the sale of the cotton; and though the consideration named in the bill of sale was a part of a sum owed by the vendor to the purchas
they should have sold it out if it was of any great value, and plaintiffs (defendant's co-administrators) then sold to him the machine and office furniture for a small sum, and rented him the office. Fay v. Fay, Ct. of Cha ery, New Jersey, Oct. 13, 1886; 6 Atl. Rep. 12.
ers, which it was agreed should thus be satisfied, the title of the latter was not affected by their failure to enter a credit therefor on their books. Objections cannot be heard in the supreme court for the first time to irregularities which may have occurred in perfecting an appeal from a justice's court to the district court. Brewer v. Blanton, S.
C. Tex., Oct. 19, 1886; 1 S. W. Rep. 572. 31. Rescission Fraud – Replevin – ASsumpsit-Estoppel-Purchase from Fraudulent Vendee - Consideration – Antecedent Debt. - On the rescission of a contract of sale on account of the vendee's fraud, the vendor is not precluded from maintaining an action of replevin against purchasers from the vendee, by his subsequently, bringing an action of assumpsit against the vendor for the price of part of the goods not replevied, and taking judgment by default therein. A purchaser from a fraudulent vendee cannot retain the goods against the vendor, who rescinds the sale, when the only consideration for his purchase was the payment of an antecedent debt due from the vendee to him. Sleeper v. Davis, S. C. N. H., July 30, 1886; 6 Atl. Rep. 201.
35. WATER AND WATER-COURSES Diversion -
Deed Right of Way – Damages Railroad Company Fences Cattle-Guards Comтоп Law Right of Way DamagesOroner-Deed-Waiver.- Where the diversion of a water-course is expressly authorized by the terms of a deed from the grantor of a right of way to a railroad company, the company is not liable for the consequential damages resulting therefrom. There is no principal of the common law which obliges a railroad corporation to fence its track, or to provide cattle-guards, where the line traverses improved land. In estimating the owner's compensation for a right of way in an action against a railroad company, the additional fencing rendered necessary by the building of the road is an element of the same; but when the owner conveys the right of way by agreement, he waives, in advance, all such damages, it being presumed that these are included in the purchase price of the land. St. Louis, etc. Co. 0. Walbrink, s. C. Ark., Oct. 2, 1886; 1 S. W. Rep. 545.
Warranty - Breach – Promissory Notes. - The plaintiff brought suit on two promissory notes, which with $100 had been given for a selfbinding harvester. The defendant alleged damages for a breach of the warranty, by the terms of which, if the machine was defective, the agent agreed upon prompt notice to repair it, or else to take it back and refund the purchase money and notes. The machine proved defective, after being twice repaired, and the plaintiff then refused either to repair it again or to return the $100 and notes. Judgment for the defendant was affirmed, prompt notice of the failure of the machine having been given by him, and the defendant not having been charged with its acceptance because he kept it beyond the time defined in the warranty, for the purpose of giving it a new and fair trial after it was repaired. The notes were canceled by the effect of the judgment, notwithstanding there was appended to them a waiver of "all defenses." Osborne v. McQueen, S. C. Wis., Oct. 12, 1886; 129
N. W. Rep. 636. 33. TELEGRAPH COMPANIES-Stipulation in Mes
sage-Statutory Penalty.-A condition in a message, which stipulates that all “claims” for damages must be presented within sixty days after sending the message, does not include the statutory penalty allowed for negligent delivery of the telegram. Western, etc. Co.v. Cobbs, S. C. Ark., Oct.
9, 1836; 1. S. W. Rep. 558. 34. TRADE-MARK-“Patent Roofing'-Good-Will
-Estate of Decedent.-Where one carried on the so-called business of “patent roofing” in connection with a worthless patent during his life-time, one of his administrators who continues it under that name after his death, for his own benetit, should not be held liable to the estate as for the use of a trade-mark or good-will belonging thereto, when there is no evidence that the intestate adopted the expression “patent roofing” as a trade-mark, or with any other intention than as a mere designation of the kind of business he was engaged in, or that the business has any special value; particularly when the administrators all jointly carried on the business for a time when
36. Mill Easement - Deed. Land, con
veyed by a deed from one who had acquired the same under foreclosure, was described therein as bounded on one side by a certain creek; the bank of the stream along the deeded premises was high and precipitous; the water rights in the stream had for a long time been used by the owners of a mill property on the stream just below the deeded property, and no attempt to use the water power had ever been made by the occupants of the deeded property until a short time before the execution of the deed, when it became available to them through the destruction of the mill dam below. Held (a), that, in view of the location and physical condition of the deeded property, title was acquired only to a strip of land along the stream, with no rights in the lands under water, or in the water power; (b), that the owners of the mill property below should not be restrained from rebuilding their dam. Hall v. Whitehall, etc. Co., N. Y. Ct. App., Oct. 5, 1886; 4 Cent. Rep. 222.
37. WILL-Construction-Life Interest or Absolute
Interest - Precatory Trust.–Testator by his will, after giving certain real and personal property to his wife, gave to his brother T M in trust for his sisters MC, CM, and H M, 40001. of his East India five per cent. railway shares, and his Scinde and Delhi Railway shares, “ on condition that they will support M M. At the demise of either or any of the above, the survivor or survivors to receive the increased income produced thereby. They are hereby enjoined to take care of my nephew JT NC as may seem best in the future.” Held (1), that a trust was created in favor of the three sisters of the capital of the funds absolutely as joint tenants, subject to the condition of their supporting MM; (2), that no precatory or other trust was created in favor of the nephew JTN C. Re-Moore; Moore v. Roche, Eng. Ct. App., 1886; 54 Law Times Rep., 231.