« AnteriorContinuar »
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 per-
son who accepts a mortgage upon the land of a married woman,
knowing her to lie married, and that the land is her separate prop-
erty, is bound to inquire as to the consideration, and unless mis-
led by her conduct or representations, he will be held to have
acquired knowledge of the facts which prudent inquiry would have
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 Mort-
gage.—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 encum-
brances, 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.
MASTER AND SERVANT.
See Negligence, 1 to 3.
1. Duty of the Master to Provide Safe Working Places and Machinery.—Negli-
gence.—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 fellow-
servant, 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 ren-
dered 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 em-
ployer 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 pro-
vide employees with safe machinery and appliances can not be so del-
egated 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*. — Viola-
lion of Requirement.—Liability of Company.—Where a rule of a railroad
company requires that cars shall lie coupled by the use of coupling-
sticks, 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 practica-
ble 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 inten-
tion 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 descrip-
tion, 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.
MISCONDUCT OF JURY.
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
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 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
.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
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 beco.ne 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 knowl-
edge 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 previ-
ously 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 fore-
closure proceeding, judgment is rendered for the defendant on a cross-
complaint which prays the cancellation of the mortgage, and that
his title be quieted in respect thereto, the case is not one which in-
volves the title to real estate in such sense that a new trial as a mat-
tor of right should be allowed. Sterne v. Vert, $08
^. Surprise.— Waiver.—A party who sits by, and without asking a post-
ponement takes the chances of a trial, can not, as a general rule, ob-
tain a new trial on the ground of surprise. Stewart v. Smith, 526
See Attorney And Client, 3; Gravel Road, 3, 9; Guaranty; Insur-
Ance, 7 to 9; Life Insurance, 1; Married Woman, 3, 9; Me-
Chanic'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 defend-
ants 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
See Negligence, 1 to 3.
Public Highway.—Destruction of Culeert. — Restoration by land- Owner.—Sur-
face Water.—Collecting into Channel and Discharging Upon Land of Neigh-
bor.—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