Imágenes de páginas

married woman upon her separate property to secure her husband's debt, was yalid, under the law then in force. Post v. Losey, 74

2. Same.Extension of Time of Payment of Debt.Release of Surety.—A wife, who is surety for her husband, will be released from liability the same as any other surety, by an extension of the time of payment of the debt without her consent, and the lien of a mortgage executed bv her to secure it will be discharged. lb.

3. Same.—It is essential to the discharge of a surety by an extension of time of payment that the payee or promisee should have knowledge of the suretyship. Ib.

4. Same.Mortgagee Hound to Inquire ax to Consideration of Mortgage.— A person who accepts a mortgage upon the land of a married woman, knowing her to lie married, and that the land is her separate property, is bound to inquire as to the consideration, and unless misled by her conduct or representations, he will be held to have acquired knowledge of the facts which prudent inquiry would have disclosed. Ib.

5. Estoppel. — A married woman, whose representations were relied upon by one who contracted with her in good faith, is estopped to deny the character of her contract. Rogers v. Union Cent. L. Ins. Co., 843

6. Separule Real Estate.Mortgage Executed Upon to Secure Debt of Another. —A mortgage executed by a married woman upon her separate real estate to secure the debt of her husband or others is invalid, and can not be enforced. Crooks v. Kennttt, S.}7

7. Act of March 11, 1875.Inchoate Interest.Sheriff's Sale.Prior Mortgage.—A married woman, who, under the act of March 11, 1875, has had her interest in her husband's real estate, which has been sold on execution, set off to her, occupies a relation analogous to that of surety as to prior mortgages on the whole tract, in which she has joined, and the two-thirds of the land taken by the purchaser at the sheriff's sale is charged with the payment of all such prior encumbrances, provided it is of sufficient value. Bunch v. Grave, 851

8. Mortgage.—Surety-Statute of 1870.—Under theslatute of 1879 (Acts of 1879, p, 160), a married woman might mortgage her separate property, acquired by purchase, to secure her husband's debt.

Gardner v. Case, 4%

9. Same.Duress by Husband.Knowledge of Mortgagee.—It is no defence to a suit to foreclose a mortgage against a married woman that the latter executed the mortgage under duress by her husband, unless the mortgagee participated in or had knowledge of the duress. lb.

See Negligence, 1 to 3.

1. Duty of the Master to Provide Safe Working Places and Machinery.Negligence.—It is the duty of the master to use ordinary care and diligence to provide safe working places and safe machinery and appliances for his employees, the neglect of which is an actionable wrong, and he can not absolve himself from liability by delegating such duty to an agent. Krueger v. Louisrilte, etc., R. W. Co., 5!

2. Same.Fellow-Sermnt.Vice-Principal. — The negligence of a fellowservant, or co-employee acting as such, will not authorize a recovery, although he may be a superior officer, an agent or a foreman; but if the superior agent is charged with the performance of the master's duty, to that extent his acts and negligence are those of the master.


3. Same.Railroad.Master Mechanic.—Fireman.Defective Locomotive.— By order of the division master mechanic of a railroad company, a tender belonging to one engine was attached to another of different

construction, its deck being three to four inches higher than that of the engine. The use of the locomotive as thus constituted was rendered dangerous, by reason of lost motion and the liability of the tender to become detached, and the engineer so notified the master mechanic. While the fireman was engaged in shovelling coal into the fire-box, the engine and tender parted and the fireman was killed. Held, that the company is liable. Ib.

4. Duty of Employer to Provide Safe Machinery.—It is the duty of the employer to provide the employee with a safe working place and with safe machinery and appliances, and in discharging this duty he is required to exercise ordinary care and skill.

Pennsylvania Co. v. Whiicomb, SIS

5. Same.Delegation of Duty.Responsibility of Master.—The duty to provide employees with safe machinery and appliances can not be so delegated by the master as to relieve him from responsibility. The agent to whom it is entrusted, whatever his rank may be, acts us the master in discharging it. lb.

6. Same.Rules Governing Employee*.Contract of Service.—An employer may adopt reasonable rules for the government of his employees, and when brought to the knowledge of the latter, who thereafter continue in the master's service, the rules anil an implied undertaking to obey them enter into the contract of service. Ib.

7. Same. Railroad.Rule that Brakemen Shall f/« Coupling-Stick*. Violalion of Requirement.—Liability of Company.—Where a rule of a railroad company requires that cars shall lie coupled by the use of couplingsticks, and tliis rule is brought to the knowledge of one employed as brakeman, and assented to by him, it constitutes a part of his contract of service, and for an injury received by him in endeavoring to make a coupling by hand, the company is not liable, unless it be shown that the act could not have been safely performed even by the use of the appliance provided, or that obedience to the rule was not practicable under the circumstances of the particular case. Ib.


1. Notice of Intention to Hold.Description of Real Estate.—The notice of an intention to hold a mechanic's lien may include more land than ought to be sold to discharge the lien, and where, in such notice, the intention is declared to hold a lien on several lots, the numbers of which are given, and "the dwelling-house erected thereon," it is sufficiently definite in that regard. White v. Stanton, 540

2. Same. Description in Notice A ided by Averments of Complaint.—Where the description of the real estate, in a notice of an intention to hold a mechanic's lien, is so defective as to be insufficient of itself to identify any particular tract of land, but, with the aid of proper averments, it can be rendered definite and certain by the introduction of extrinsic evidence, it will be held sufficient for the purpose intended, and a true description may be supplied at the hearing. Ib.

3. Srime. — Invalid Notice. —Where the description in such a notice is so uncertain as to afford no clue to a more definite and correct description, no lien is acquired. Ib.

4. Same.Defective Notice Cured by Averments.Judicial Knowledge.—Where a notice of intention to hold a mechanic's lien failed to disclose the county and State in which the real estate upon which the lien was claimed was situate, but the complaint for the foreclosure of the lien averred that the land was situate in the county where the action was pending, that the parties all resided in that county when the notice was filed, and that the notice was recorded in the recorder's office of the same county, these averments, taken in connection with the ju-
dicial knowledge of the court that a section of land, corresponding
generally with the one described in the notice, lies within that county,
are sufficient to supply the defect. Ib.

See Soldier's Bounty.

See Juky.

See Appeal, 7: Deed; Estoppel,1; Evidence,!); Husband And Wife;
Married Woman; New Trial, 5; Principal And Agent, 1 to 4;
Principal And Surety, 1 to 5; Sheriff's Sale, 4.

1. Foreclosure.Equitable Cognizance.Not Triable by Jury—A suit for the
foreclosure of a mortgage is of equitable cognizance, and the issues
therein are not triable by jury. Rogers v. Union Cent. L. Ins. Co., SfS

2. School Fund Mortgage.Action to Set Aside.County Auditor Not Proper
Party.—In an action to set aside and cancel a mortgage executed to
the State, to secure a loan from the school fund, the county auditor
is not a proper defendant, and a judgment against such officer in such
action will not bind the State, it not being a party.

Semble, that the State can not be made a party to Biich an action.

Crooks Y. Kennett, SJ,7

3. V(didity.—Lez Situs.—The validity of a mortgage of real estate is to be
determined by the law of the place where the property is situated.

Swank v. Hufnagle, 45S

4. Same.Married Woman.Surety.—A mortgage executed in Ohio by a
married woman, as surety for another, upon land owned by her in this
State, is void under the statute of 1881. 76.

5. Cancellation.Equitable Defences.Maxim "He Who Seeks Equity Must
do Equity."Application of.—A plaintiff who shows himself otherwise
entitled to the aid of a court of equity will not, under the maxim that
he who seeks equity must do equity, be denied relief, unless the defend-
ant brings forward some corresponding equity, growing out of the
subject-matter then in suit, which would, at some time subsequent to
the transaction, in some form of proceeding, entitle him to a remedy
against the other party, in respect to the subject-matter involved.

Otis v. Gregory, 50.}

6. Same.Married Woman. Mortgage Without Husband Joining. Lex-
Situs.Vendor's Lien.Pleading.Practice.—A mortgage executed in
Michigan by a married woman, without her husband joining, upon
her separate land in this State, is void, and, of itself, creates no equity
which the courts can recognize; but if the debt intended to be secured
thereby is purchase-money, the mortgagee may, by reason of his
vendor's lien, in a proceeding by the mortgagor to cancel the mort-
gage, obtain affirmative relief by cross-complaint, or by setting up
the facts by way of answer may, unless his equity is acknowledged,,
defeat the plaintiff's right to relief. Ib.

7. Same.Vendor's Lien.Equitable Subrogation. — Where a party who
holds a valid mortgage upon land releases it, in order that the owner
may sell the property and invest the entire proceeds in another tract,
he to take a mortgage upon the latter for the amount of his debt, he
in effect pays a part of the purchase-money, and, if the mortgage
taken is void, will be subrogated to that extent to the rights of the
vendor. Ib.

8. Husband and Wife.Tenants by Entireties.Suretyship of Wife.Convey-

antes to Evade Salute Prohibiting.—S. and wife owned land as tenants
by entireties and the former was indebted. To evade the statute (sec-
tion 5119, R. S. 1881) prohibiting a married woman from encumber-
ing her property as surety, the land was conveyed to a trustee, who
reconveyed it to the husband alone, after which it was mortgaged by
the husband and wife to secure the former's antecedent debt, and
then, through another trustee, reconveyed to the husband and wife as
previously held. The mortgagee knew of the purpose of the convey-

Held, that under the statute mentioned the mortgage is void.

McCormick, etc, Co. v. Scoveli, 551

See County; Town.

See Taxes.

See Common Carrier; Master And Servant.

1. When Employer not Liable.Contractor.Master and Servant.Nuisance.
—Where work which does not necessarily create a nuisance, but is in
itself harmless and lawful when carefully conducted, is let by an
employer, who merely prescribes the end, to another who undertakes
to accomplish that end by means which he is to make use of at his dis-
cretion, the latter is, in respect to such means, the master, and if a
third person is injured by the negligent use thereof, the employer
is not answerable. Wabash, etc., R. W. Co. v. Farver, 1U3

T. Same.Operating Portable Steam-Engine Near Highway.Not Necessarily
a Nuisance.—It is not necessarily a nuisance to operate a portahle
steam-engine, in a careful manner, in close proximity to a public
highway. lb.

.j. Same. Railroad.Frightened Horse.Negligence of Independent Contract-
or.—A railroad company is not liable for an injury to a traveller on
a highway, through the fright of his horse, caused by the negligence
of the owner of a portable steam engine in operating it, near the
highway, under a contract with the company to pump water out of
the way of an excavation which is being constructed by the latter,
where he has exclusive control of the engine and of the manner of
using it. Ib.

4. Common Carrier.Street Railway Company.SkUl and Care Required-—A
street railway company is a common carrier of passengers, with duties
and responsibilities analogous to those of a railway company; and
is required to exercise the highest degree of care and skill in the
transportation of passengers, by providing suitable tracks, rolling
stock, etc., keeping pace with science, art and modern improvements
in their application to such transportation.

Citizens Street R. W. Co. v. Twiname, 5S7

6. Same.Defective Tracks.—A street railway company is guilty of negli-
gence when it attempts to run its cars over a palpably defective place
in its track, when by the use of such increased vigilance and care as
are practicably available the safety of its passengers is not well
assured. 75.

6. Same. Implied Invitation to Passengers.Contributory Negligence.—When
a duly equipped car is placed upon a street railway track, under cir-
cumstances indicating that it is ready to receive passengers and about
to proceed on its way for their transportation, an invitation to all
suitable persons to enter and passengers is implied, and the

-acceptance of such an invitation can not be held to be contributory negligence on the part of a passenger, although he may have knowledge that portions of the track over which he is to be carried are defective, he having a right to presume that all necessary precautions have been taken to secure his safety. Ib. '7. Same.Assumption of Risks.Ileuding.Answer.—In an action against a common carrier for negligence in its transportation of passengers, where an agreement on the part of the plaintiff that he will assume all risks is relied upon as a defence it must be specially pleaded. Ib.

See Appeal, 5 to 7; Jury; Special Finding, 1.

i. Newly Discovered Evidence.Cumulative.Impeaching.—A new trial will not be granted on the ground of newly discovered evidence where the latter is merely cumulative, or tends to impeach evidence previously given, nor where a sufficient excuse is not shown for failing to produce the evidence at the first trial. Pennsylvania Co. v. Nations, 203

*2. As oj Siijltt. Motion to Vacate Order Granting. —Practice.—Where a party is in court, by his attorneys, when an order is made granting the opposite party a new trial as of right, and does not object thereto, he can not afterwards move to vacate the order upon the ground that it was made without his knowledge or consent. Harvey v. Fink, 2Jj9

■3. Same.—■ When Motion to Vacate Must be Made.—A motion to vacate and set aside an order granting a new trial as of rij^ht must be made at the earliest practicable moment to be available. Ib.

4. Same.Motion for New Trinl After Term. —Where a verdict is returned on Thursday of the last week of a term of court, a motion for a new trial made on the fourth day of the next term comes too late, under section 501, K. S. 1881, and can not be entertained. Ib.

5. As of Right. - Title to Real Estate not Involved in Foreclosure Proceedings.Cancellation of Mortgage.— Judgment.— Quieting Title. —Where, in a foreclosure proceeding, judgment is rendered for the defendant on a crosscomplaint which prays the cancellation of the mortgage, and that his title be quieted in respect thereto, the case is not one which involves the title to real estate in such sense that a new trial as a mattor of right should be allowed. Sterne v. Vert, $08

^. Surprise.Waiver.—A party who sits by, and without asking a postponement takes the chances of a trial, can not, as a general rule, obtain a new trial on the ground of surprise. Stewart v. Smith, 526


See Attorney And Client, 3; Gravel Road, 3, 9; Guaranty; InsurAnce, 7 to 9; Life Insurance, 1; Married Woman, 3, 9; MeChanic's Lien; Parties; Supreme Court, 9; Trust And Trustee.

.Summons.When not Necessury on Cross-Complaint.—it is not necessary to issue a summons on a cross-complaint as against the defendants to the original complaint, where the latter discloses the character of the claim of the cross-complainants, and fairly informs the defendants that such claim will be adjudicated, as it is their duty to take notice without further process of all the proceedings in the cause.

Bevier V. Kahn, SOO

NUISANCE. See Negligence, 1 to 3. Public Highway.Destruction of Culeert. Restoration by land- Owner.Surface Water.Collecting into Channel and Discharging Upon Land of Neighbor.—Where the natural course of surface water is, and has been for a long period of time, through a culvert in a public highway and thence

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