ÆäÀÌÁö À̹ÌÁö
PDF
ePub

court is whether there has been a violation of legal principles or neglect of prescribed formalities. Oakley v. City of Atlantic City (N. J. Sup.) 651.

Under Act May 22, 1894, a city can erect proper posts, lanterns, and fixtures for lighting streets at its own expense, independent of the contract for lighting, and can contract for the erection and maintenance of such posts and fixtures.-Oakley v. City of Atlantic City (N. J. Sup.) 651.

§ 6. Public improvements.

That plaintiff's interest in flats injured by changing grade of a street is that of upland owner of tide water does not affect his right to damages.-New Haven Steam Sawmill Co. v. City of New Haven (Conn.) 233.

Interest should be allowed, on damages awarded for change of grade, from time such damages are liquidated to that when they are put into judgment.-New Haven Steam Sawmill Co. v. City of New Haven (Conn.) 609; Cannon v. Same, Id.

Where damages were awarded to the owner of land taken for a street, persons purchasing the land the following day have no right of appeal from the award.-Rines v. City of Portland (Me.) 925.

No other person except the owner of land taken by the city of Portland for a street is damaged by the award of damages, and he is the only person who can appeal.-Rines v. City of Portland (Me.) 925.

Evidence held insufficient to show acceptance of a street by a city, so as to make it liable for defects therein.-Ogle v. City of Cumberland (Md.) 1015.

Certiorari will not lie to review a tax ordinance, after taxes have been assessed and confirmed, where over three months intervened between its passage and confirmation of assessment.-Carling v. City of Hoboken (N. J. Err. & App.) 950.

A proposed street opening having been in part set aside, assessment for benefits against landowner on the basis that the opening would be fully carried out should be set aside.-Butler v. Board of Com'rs (N. J. Sup.) 849.

City lots above a tunnel owned by a railroad, and not used for railroad purposes in its present condition, held subject to assessment for street improvement benefiting such lots.-Morris & E. R. Co. v. City of Jersey City (N. J. Sup.) 937.

Lots purchased by railroad, to be subsequently used to enlarge its yard at some future time. when such enlargement became necessary, held liable to assessment for street improvements. Morris & E. R. Co. v. City of Jersey City (N. J. Sup.) 938.

Where report confirming awards for lands and assessments for benefits on opening streets is lost, the proceeding should be set aside.-Meredith v. City of Perth Amboy (N. J. Sup.) 971.

Where record as to awards for land taken and assessment of benefits on opening of streets is lost, and proceeding therefor set aside, statutory provision requiring certiorari to review assessment only within six months was inapplicable.Meredith v. City of Perth Amboy (N. J. Sup.)

971.

In fixing the value of leased property injured by change of grade of a street, it is error to add to the value of the physical property before the change the anticipated profits for the remainder of the lease.-Philadelphia Ball Club v. City of Philadelphia (Pa.) 265.

In an action for an injury to leased property by change in a street grade, it is error to consider, as affecting the value of the leasehold, expenditures for improvements not necessitated

by the grading of the street. Philadelphia Ball Club v. City of Philadelphia (Pa.) 265.

Evidence held to show no such paving of a turnpike as to preclude assessment for paving when it became a borough street.-In re Lincoln Ave. (Pa.) 498; Appeal of Roseburg, Id.

written application of freeholders and voters, Under village charter authorizing trustees, on and to assess abutting lots, the question whethto build sewers when public health requires it, er public health requires it is jurisdictional fact, to be found by them before they can legally proceed with work and make such assessments.-Kent v. Village of Enosburg Falls (Vt.) 343; Kendall v. Same, Id.

build sewers on written application of five or Under village charter authorizing trustees to more freeholders and legal voters, petition for sewer is insufficient unless it shows on its face that requisite number of signers were freeholders and legal_voters.-Kent v. Village of Enosburg Falls (Vt:) 343; Kendall v. Same.

Id.

§ 7. Police power and regulations.

A city, having power to regulate streets, cannot enact ordinance imposing license fee for revenue on a street-railroad company.-City of Cape May v. Cape May Transp. Co. (N. J. Sup.) 948. § 8. Use and regulation of public places, property, and works.

Under the statute (5 Sp. Acts, pp. 597, 598), proceedings to lay out a street, without notice to the owner or lessee in possession, are void as against them.-City of New Haven v. New York, N. H. & H. R. Co. (Conn.) 31.

A street not legally laid out, but used, improved, and treated by public as a highway for 90 years, over which a railway company and its lessees had maintained a crossing for 50 years, held to be a highway by prescription and dedication.-City of New Haven v. New York, N. H. & H. R. Co. (Conn.) 31.

teams held not inconsistent with statute.-State A by-law regulating use of street by heavy v. Boardman (Me.) 118.

loaded team over portion of street provided for On trial for violating by-law in not driving that purpose, evidence that such portion was impassable was admissible. - State v. Boardman (Me.) 118.

Whether by-laws restricting use of street by a heavily loaded team are reasonable held to depend on the suitability for the purpose.-State v. Boardman (Me.) 118.

Municipal corporations, referred to in Act April 21, 1896, requiring consent to be obtained of them before erecting electric light poles, are

such as are called cities and towns, and townships are not included.-Suburban Electric Light & Power Co. v. Inhabitants of East Orange Tp. (N. J. Err. & App.) 628.

Acts 1884, 1893, and 1896, relating to lighting in streets, apply to private light companies desiring to use streets for private lighting, and require consent of abutting owners and designation of streets by city.-Meyers v. Hudson County Electric Co. (N. J. Err. & App.) 713.

May 22, 1894, and the city, under that act, Public lighting only is provided for by Act without consent of abutting owners or designation of streets, may use streets and erect poles for public lighting.-Meyers v. Hudson County Electric Co. (N. J. Err. & App.) 713.

two maps of the location, the city thereafter, in Where owner of land, laying out street, filed fixing the north line of street, could not use such map without allowing owner of south side of the street to also use it for his protection.Gernert v. Inhabitants of Union Tp. in Hudson County (N. J. Ch.) 145.

City, in widening street, held not entitled to take the entire part from the lot of one abutting owner, but that a proportionate part should be taken from the other side of the street.-Gernert v. Inhabitants of Union Tp. in Hudson County (N. J. Ch.) 145.

Council of City of Cape May has right to restrict use of streets by hucksters and other venders to certain portions thereof.-Tomlin v. City of Cape May (N. J. Sup.) 209.

Under Act 1836. the city of Pittsburg has the right to maintain a coal hoist on a wharf erected on a public landing along the Allegheny river.Reighard v. Flinn (Pa.) 1080.

9. Torts.

Municipality liable for flooding plaintiff's store during a severe and not extraordinary rainfall, caused by an obstruction negligently left by city's workmen in a sewer.-Judd v. City of Hartford (Conn.) 510.

Notice to city of place where accident on highway occurred held too indefinite.-Currier v. City of Concord (N. H.) 386.

Evidence in action for injuries by falling into coal hole in sidewalk held insufficient to show negligence in city.-Rushton v. City of Allegheny (Pa.) 249.

Notice of injury caused by defective sidewalk held insufficient, under Gen. Laws, c. 36, § 16.Maloney v. Cook (R. I.) 692.

Defects in notice required as condition precedent to action against town for injuries caused by defective highways cannot be cured after action is brought.-Maloney v. Cook (R. I.) 692. § 10. Fiscal management, public debt, securities, and taxation.

It being provided by ordinance that, when appropriation is exhausted, city clerk shall give notice to committee on accounts, and it shall pass no more claims till, city councils having provided means of paying same, appropriation for board of health being exhausted, it has no authority to make further expenditures.-Clark v. City of Portsmouth (N. H.) 388.

Collector of borough held to show no excuse for nonpayment to county collector of portion of taxes apportioned against such borough.-Ross V. Walton (N. J. Sup.) 430.

Under P. L. 1885, p. 317, power to license running of cars, and collect fees for revenue, by ordinance, must provide for such license in express terms.-City of Cape May v. Cape May Transp. Co. (N. J. Sup.) 948.

$11. Actions.

City authorities held not to have waived, by their action, their right to have a sufficient notice of place on highway where one was injured filed within time fixed by statute.-Currier v. City of Concord (N. H.) 386.

MUTUAL BENEFIT INSURANCE. See "Insurance," § 10.

MUTUAL BENEFIT SOCIETIES.

See "Beneficial Associations."

[blocks in formation]

Causing death, see "Death," § 1. Condition or use of particular species of property, works, or machinery, see "Bridges," § 1; "Electricity"; "Highways," § 2; "Street Railroads," § 2.

Of servant, see "Master and Servant," § 6. § 1. Acts or omissions constituting negligence.

In action for personal injuries received by a child by reason of a cake of ice from defendant's wagon falling on it, held, that evidence of negligence was not sufficient to authorize a judg ment for damages.-Walsh v. Hayes (Conn.)

725.

Abutting owner, owning presumptively to the center of highway, held liable, where a horse is frightened by a hay cap fluttering in the wind, which, by its proximity to the traveled way, was naturally calculated to frighten horses of ordinary gentleness.-Lynn v. Hooper (Me.) 127.

Evidence held to show a boy injured in defendant's mill a trespasser.-Buch v. Amory Mfg. Co. (N. H.) 809.

A property owner properly managing his machinery held not liable for injuries received by a child who is a trespasser.-Buch v. Amory Mfg. Co. (N. H.) 809.

Defendant constructing a wall held to owe a duty to one lawfully on the premises to take reasonable care that the wall should not fall.-Dettmering v. English (N. J. Sup.) 855.

Where deceased went onto a scaffold without command or authority, and was not an employé of the persons erecting it, and his work had no connection with the work for which it was built, there could be no recovery for his death, caused by the scaffold breaking.-Brady v. Prettyman (Pa.) 919.

§ 2. Contributory negligence.

A driver on a very narrow street, on which there are two electric railway tracks, who is compelled to turn out of the track by a car approaching from behind, while another is approaching him from in front on the other track, held suddenly placed. without fault on his part, in a position of danger; and, in his effort to extricate himself, he cannot be held to the use of the best judgment.-Cannon v. Pittsburg & B. Traction Co. (Pa.) 1089.

§ 3. Actions.

A complaint held to describe a cause of action resulting from defendant's negligence, and not one from negligence of fellow servants.-Brennan v. Berlin Iron-Bridge Co. (Conn.) 727.

A complaint, in an action for damages occasioned by defendant's negligence, averring that plaintiff was exercising due care, held sufficient, as against a demurrer that plaintiff was not exercising due care when injured.-Brennan v. Berlin Iron-Bridge Co. (Conn.) 727.

Evidence that candles had been furnished by plaintiff to defendant's servants before, and that the use of candles had been acquiesced in by him, held admissible, in an action for loss from

MUTUAL INSURANCE COMPANIES. fire 'caused by the negligent use of a candle. to

See "Insurance," § 1.

NAMES.

Of corporations, see "Corporations," § 3.

NATIONAL BANKS.

See "Banks and Banking," § 3.

show necessity of a light.-Dore v. Babcock (Conn.) 736.

Instructions as to contributory negligence of plaintiff's servant held erroneous, in action for loss of property by fire alleged to have been caused by defendant's negligence.-Dore v. Babcock (Conn.) 736.

Where a fire was caused by the negligent use of a candle furnished defendant's servant by plaintiff's clerk, it was error to exclude a ques

tion, asked such clerk, whether he expected defendant's servant would use it as he did.-Dore v. Babcock (Conn.) 736.

In an action for death, findings of fact held to

justify finding that defendant's foreman was negligent.-Fox v. Kinney (Conn.) 745.

In action against railroad company for personal injuries, instruction as to care required of deceased in crossing track held correct.-Davis v. Concord & M. R. R. (N. H.) 388.

A certain averment held not sufficiently specific. Ferguson v. Western Union Tel. Co. (N. J. Sup.) 849.

Evidence in action for injuries caused by alleged negligence of plaintiff held such as to make

[blocks in formation]

it error to direct verdict.-Dettmering v. English Before trial, see "Dismissal and Nonsuit." (N. J. Sup.) 855.

[blocks in formation]

In criminal prosecutions, see "Criminal Law," Violation of liquor laws, see "Intoxicating Liq§ 5.

[blocks in formation]

Statement by defendant's counsel charging plaintiff's witness with rank perjury in a former case held not sufficient ground for new trial.Spiro v. Nitkin (Conn.) 13.

Filing brief without submission to opposing counsel, and without notice, held ground for new trial. Spiro v. Nitkin (Conn.) 13.

Plaintiff, in an action to set aside voluntary deeds as forgeries, is not entitled to a new trial

uors," $4.

§ 1. Private nuisances.

Where the use made by defendants of a shoddy mill is reasonable, plaintiff cannot recover damages, as for a private nuisance.Davis v. Whitney (N. H.) 78.

Gen. Laws, c. 91, § 1. held not to authorize appeal from order of the town council abating a nuisance.-Brown v. District Council of Narragansett (R. I.) 932.

Gen. Laws, c. 248, §§ 1, 4, authorizing appeal from a decree of a town council, have no application to a proceeding by the town council to abate a nuisance.-Brown v. District Council of Narragansett (R. I.) 932.

NUNCUPATIVE WILLS.

for newly-discovered evidence that grantee had See "Wills," § 2.
agreed to reconvey the property to him.-Wild-
man v. Wildman (Conn.) 224.

Failure of the court to decide plaintiff's motion to amend his complaint to conform to the proof, and rendering judgment against him, held ground for a new trial.-Wildman v. Wildman (Conn.) 224.

Assessment of excessive damages on second trial may be set aside, and damages assessed anew, without any contention over defendants' liability-McKay v. New England Dredging Co. (Me.) 614.

Verdict as to defendants' liability for damages should stand where a new trial has been twice awarded on the ground of excessive damages.McKay v. New England Dredging Co. (Me.) 614.

A new trial will not be granted for newlydiscovered evidence which could have been discovered by due diligence before trial.-Pickering v. Cassidy (Me.) 683.

Jury having failed to find a verdict, on issue on appeal from probate whether will was revoked, there will be new trial without any motion therefor.-Lane v. Hill (N. H.) 393.

OBSTRUCTIONS.

Of highways, see "Highways," § 2.
Of water course, see "Waters and Water Cours-
es," § 1.

OFFICERS.

Mandamus, see "Mandamus," § 1.
Particular classes of officers, see "Clerks of
Courts"; "Justices of the Peace"; "Sheriffs
and Constables."

[ocr errors]

collectors of taxes, see "Taxation," § 6.
corporate officers, see "Corporations," § 6.
county officers, see "Counties," § 1.
health officers, see "Health," § 1.

municipal officers, see "Municipal Corporations," § 3.

school officers, see "Schools and School Districts," § 1.

town officers, see "Towns," § 2.

1. Appointment, qualification, and

tenure.

Officer legally elected and qualified, who afterwards accepts another office, but in good faith

[ocr errors]

continues to perform duties of the first, his term not having expired, no successor having been appointed, nor adjudication made against his title, held an officer de facto.-Oliver v. City of Jersey City (N. J. Err. & App.) 709.

Official acts of officer de facto held valid, so far as rights of third persons and public are concerned, unless defects in his title are notorious.-Oliver v. City of Jersey City (N. J. Err. & App.) 709.

Where person legally holding one office is elected to another, and is prohibited by statute from holding both, on accepting the second his de jure title to the first ends; and, if he refuses to vacate, his successor will be compelled to take steps to oust him.-Oliver v. City of Jersey City (N. J. Err. & App.) 709.

A Union soldier, appointed to fill an office vacated by the wrongful removal of another soldier, held not entitled to certiorari to review the reappointment of the latter, after applicant's remioval, on the ground that such removal was in violation of the veteran act (3 Gen. St. p. 3702). --Heaviland v. Board of Chosen Freeholders of Burlington County (N. J. Sup.) 963.

An honorably discharged Union soldier, having accepted an office the term of which expired in one year, held not entitled to certiorari to review the appointment of his successor under the veteran act (3 Gen. St. p. 3702).-Heaviland v. Board of Chosen Freeholders of Burlington County (N. J. Sup.) 963.

Where statute creates office, but fails to fix time when term commences, and makes no pro

visions as to vacancy, it will not be inferred that person appointed to fill vacancy is to hold merely for unexpired term of his predecessor.-Smith v. Cosgrove (Vt.) 73.

PARTIES.

Competency as witnesses, see "Witnesses," § 1. On appeal or writ of error, see "Appeal and Error," $82, 4.

Persons concluded by judgment, see "Judgment," § 6.

To mortgages, see "Mortgages," § 3.
To suits in equity, see "Equity," § 3.
Transfer of interest ground for abatement, see
"Abatement and Revival," § 1.

§ 1. Defendants.

In action to determine validity of an act of a public officer, he is not a necessary party.-Oliver v. City of Jersey City (N. J. Err. & App.) 709.

§ 2. Defects, objections, and

ment.

Parties, improperly made defendants to a foreclosure suit, who fail to demur, or to raise the question of misjoinder in their answer, will be deemed to have waived it.--Passumpsic Sav. Bank v. Buck (Vt.) 93.

PARTITION.

8 1. Actions for partition.

Sale in partition proceedings to third person will not be set aside because, since sale, and before confirmation, parties to partition proceedings have adjusted their differences in regard to the property.-Boston & M. R. R. v. Langdon (N. H.) 603.

unable to get counsel to delay partition sale held no ground for setting sale aside.-Boston & M. R. R. v. Langdon (N. H.) 603.

Fact that one of the owners of property was

Held, commissioner in partition proceedings act§ 2. Title to and possession of office. Mandamus will not be granted to seat a town-made by some of owners of property.-Boston & ed properly in proceeding with sale, on request ship committee not intelligently chosen by the M. R. R. v. Langdon (N. H.) 603. voters, on a dispute as to the constitutionality of law by which the board was elected.-Casey v. Chase (N. J. Sup.) 872.

§ 3. Rights, powers, duties, and liabilities.

The fees which the register of the prerogative court receives under Act April 16, 1846, are not received for his own use, but for the benefit of the state.-State v. Kelsey (N. J. Sup.) 884.

OPINION EVIDENCE.

In civil actions, see "Evidence," § 10.

Where sale in partition proceedings has been regular, it will not be set aside unless there has been fraud, accident, or mistake, which has affected transaction.-Boston & M. R. R. v. Langdon (N. H.) 603.

A demurrer to a bill for partition of a part of realty, because all of it ought to have been brought into the one proceeding, held ineffectual, for, not being a bar apparent on the bill, it ought to have been presented by plea in abatement.Holmes v. Fulton (Pa.) 426.

Under Act April 5, 1842, one who is vested

In criminal prosecutions, see "Criminal Law," with an indefeasible estate per autre vie in pres§ 3.

ORDERS.

ent possession may sue for its partition.Holmes v. Fulton (Pa.) 426.

A purchaser from an original plaintiff in partition, being a privy in estate with him, may

Review of appealable orders, see "Appeal and maintain a bill to revise the proceedings under
Error."

ORDINANCES.

which he holds.-Holmes v. Fulton (Pa.) 426. Trustees under a will held to have sufficient notice of partition proceedings.-Reid v. Clenden

Municipal ordinances, see "Municipal Corpora- ning (Pa.) 500.
tions," §§ 2, 5.

PARENT AND CHILD.

Fraud in dealings between parents and adult children must be proven, as such dealings are to be treated as transactions between ordinary debtors and creditors.-In re Coleman's Estate (Pa.) 1085; Appeal of Anduaga, Id.

PARKS.

See "Municipal Corporations," § 8.

PAROL EVIDENCE.

In civil actions, see "Evidence," § 9.

Under Act April 14, 1835, it is enough that all parties interested are named in petition, writ, and final account, confirmation of which constitutes final decree.-Reid v. Clendenning (Pa.) 500.

Bill construed, and held to make trustees under will parties thereto.-Reid v. Clendenning (Pa.) 500.

. A bill is not demurrable as a second bill when it adds other and proper parties, and has a more complete statement than a prior pending bill.-Aylesworth v. Crocker (R. I.) 308.

Under Gen. Laws, c. 265, § 20, where partition is sought of real estate devised in tail, the children, husbands, and wives of the tenants in tail are proper parties, except the children in respect to shares in which the entail has

been barred.-Aylesworth v. Crocker (R. I.) from which he was sentenced does not become 308,

PARTNERSHIP.

1. The relation.

A partnership held terminated by a rescission. of the partnership agreement by one of the partners, because of the failure of other partner to contribute his share of the money required to pay partnership debts. - Lapenta v. Lettieri (Conn.) 730.

§ 2. Rights and liabilities as to third persons.

Instructions as to liability of firm on employment of a relative by one partner without the knowledge and consent of the other partner held correct. Smith v. Smith (Me.) 905.

Effect of trust mortgage given by one partner without the knowledge or consent of the other partner considered, where the mortgage was not a conveyance of all the property of the firm. Smith v. Smith (Me.) 905.

Where maker of note in suit was a member of both plaintiff and defendant partnerships, the action will not lie.-Thompson v. Young (Md.) 1037.

Partnership creditors are entitled to priority in the distribution of partnership funds over a creditor of an individual partner.-In re Stewart's Estate (Pa.) 434; Appeal of Christian, Id. 3. Dissolution, settlement, and accounting.

Upon dissolution of partnership, each partner is charged with duty of administering the firm assets in his possession so as to protect partnership creditors.-Lapenta v. Lettieri (Conn.) 730.

[blocks in formation]

§ 1. Settlement and removal.

Residence of pauper in a town, with right to support incident thereto, is transferred on annexation of territory in which he resided.Town of Westfield v. Town of Coventry (Vt.) 66. § 2. Support, services, and expenses.

The notice to overseers required by statute to authorize a city to recover expenses for the relief of pauper may, under ordinance of the city of Lewiston, be given to the clerk of the overseers. -Sullivan v. City of Lewiston (Me.) 118.

Where a pauper prisoner is transferred from the state prison to the insane asylum, the county

liable for the cost of his support at the asylum after the expiration of the term of his prison sentence.-New Hampshire Asylum for Insane v. Belknap County (N. H.) 928.

The state prison is not a "hospital" or "other charitable institution," within the meaning of Laws 1895, c. 54, providing for liability for support of persons becoming paupers while inmates of, or after leaving, certain institutions.-New Hampshire Asylum for Insane v. Belknap County (N. H.) 928.

Where person resided in part of town more than 3 years prior to its annexation to another town, and after remaining in latter town about 18 months removed to third town, and there became pauper, first town held not liable to third town for support given under V. S. § 3171.-Town of Westfield v. Town of Coventry (Vt.) 66.

divorced parents held to depend on whether its Town's liability for support of pauper child of

mother resided in town, where she was decreed its care and custody.-City of Montpelier v. Town of Elmore (Vt.) 71.

PAYMENT.

Of particular obligations or liabilities, see "Mechanics' Liens," § 5; "Mortgages," § 7.

claims against estate of decedent, see "Executors and Administrators," § 3.

price of land sold, see "Vendor and Purchaser," 2.

§ 1. Pleading, evidence, and province of court and jury.

Payment of account for certain year held, under circumstances, to be evidence of payment of account prior to that year.-Miner v. Pike's Estate (Vt.) 345.

Indorsements written by lessor on lease are competent evidence against him, as admissions of payments by lessee.-Sowles v. Butler (Vt.) 355.

$ 2. Recovery of payments.

Payment, under mistake of law, of deposit to husband by bank, cannot be recovered.-Strafford Sav. Bank v. Church (N. H.) 105.

Money voluntarily paid by mistake of fact, of which both parties were ignorant, cannot be recovered, in the absence of fraud; the money being due to payee.-Behring v. Somerville (N. J. Err. & App.) 641.

signee thereof, who surrendered it, cannot call One voluntarily paying mortgage to an ason assignee to refund without restoring him to his lost position.-Behring v. Somerville (N. J. Err. & App.) 641.

[merged small][merged small][ocr errors][merged small]

PHYSICIANS AND SURGEONS.

In an action by a physician for services, under an allegation that "plaintiff rendered professional services," he cannot prove services rendered by another physician_acting for him.-Sayles v. Fitz Gerald (Conn.) 733.

In an action by a physician for services, testimony in defense that an operation was performed in the cellar, and that it was an unfit place for the operation, was competent on the question of the reasonableness of plaintiff's charge therefor.-Sayles v. Fitz Gerald (Conn.) 733.

« ÀÌÀü°è¼Ó »