newly-opened street pending appeals by such
owner from an assessment of benefit accruing
to one piece of property, and assessment of
damages to another piece, when no security is
tendered to, or arrangement is made with, him;
and a lien entered against him for the cost of
such improvement made by the borough, and
penalty for failure of the owner to make it, is
illegal.-Borough of Connellsville v. Hogg, (Pa.
Sup.) 27 A. 25.
23. Abutting lot owners petitioned the city
councils to pave a street with "asphalt blocks,'
without further details. After the councils
had decided to use a concrete base, petitioners
protested, in writing, against using such base,
stating that, when they signed the petition,
they did not know that such a base was neces-
sary, and that, if the pavement was laid on a
concrete base, they would resist payment there-
for. Held, that such protest is no defense to
the action to recover the expense of the work,
because petitioners did not withdraw their
names from the petition, and the details of
such work must necessarily be left to the_mu-
nicipal authorities.-City of Harrisburg v. Bap-
tist, (Pa. Sup.) 27 A. 8.
24. Where the abutting lot owner petitions
the city councils to pave the street, and assess
the costs against him according to the foot
front rule, he is estopped, after the work is
done, to deny the power of the councils to do
so.-City of Harrisburg v. Baptist, (Pa. Sup.)
27 A. 8.
Public improvements-Opening street.
25. The petition for the opening of a street
under section 41 of the Jersey City charter
must show clearly and definitely the location of
the lines of the proposed opening.-Wirth v.
City of Jersey City, (N. J. Sup.) 27 A. 1065.
26. Under Jersey City Charter, § 41, provid-
ing for the opening of streets, and authorizing
the commissioners, "where the line of such
improvement would bisect any building" to re-
quire the owner to "move it back from the line
of improvement," in case he have land enough
left for that purpose, the commissioners may
require the owner of such building to move it
on an adjoining lot owned by him, the words
"back from" being there equivalent to "off" or
"away from."-Wirth v. City of Jersey City,
(N. J. Sup.) 27 A. 1065.
27. In ascertaining the damages sustained
by the opening of a street the jury cannot con-
sider the damage which may thereafter arise
from the opening of a neighboring street, laid
out, but as yet unopened.-Grugan v. City of
Philadelphia, (Pa. Sup.) 27 A. 1000.
28. In a proceeding by a landowner for the
assessment of damages accruing from the open-
ing of a street through his land, an instruction
that the question for the jury was whether the
opening of the street, so far as its effect on the
value of property is concerned, was premature
or not, is erroneous.-Grugan v. City of Phila-
delphia, (Pa. Sup.) 27 A. 1000.
29 Under Const. art. 16, § 8, providing that
municipal corporations taking private property
for public use must make just compensation
for property taken or injured in making improve-
ments, the city is liable to the owner of a wharf
for injuries caused by the building of a sewer
whereby the filth was deposited in the dock,
though the sewer is on the city's land, and opens
into a dock adjoining a wharf belonging to the
city, and the land on which the sewer was built
was not taken by the city in the exercise of the
right of eminent domain, and there was no want
of skill in the construction of the sewer.
Butchers' Ice & Coal Co. v. City of Philadel-
phia, (Pa. Sup.) 27 A. 376.
30. Pursuant to an ordinance providing for
widening a street for the purpose of erecting a
bridge over the same, defendant city appropri-
ated a strip of plaintiff's land, abutting thereon,
and by agreement the parties settled for the
value of the land so taken; but the agreement
was silent as to damages to plaintiff's remain-
ing property, resulting from the erection of the
bridge. Held, that the settlement does not
estop plaintiff to claim damages, because of the
bridge, to his land on the opposite side of the
street from the land taken. Affirmed by di-
vided court.-Beaver v. City of Harrisburg,
(Pa. Sup.) 27 A. 4.
Assessment of benefits.
31. The remedial act of May 16, 1891, re-
quires viewers of unauthorized improvements
to give notice of their meeting, and at
the time fixed to personally inspect the im-
provements, assess the expenses, and ascertain
the actual benefits; their report to show the
nature of the improvement, the expenses, as as-
certained, the properties benefited, and the
amounts assessed. Exceptions may be filed, a
hearing had, and the report modified; then to
be returned to court, where also exceptions
may be filed, and thereafter final decree enter-
ed. Held, that a lot owner who has filed no ex-
ceptions before the viewers or in court cannot,
on appeal from the final decree, reverse it on
the ground that the viewers' report merely re-
cited the department of public works' statement
of cost, as the actual value of the improvements
to the lot owners; there being no evidence in
the record either way. Travers' Appeal, 25 Atl.
528, 152 Pa. St. 129, distinguished. In re Sew-
er on Twenty-Eighth St., (Pa. Sup.) 27 A. 1109;
Appeal of Pittsburgh Manuf'g Co., Id.; In re
Sewer on Twenty-Eighth St., Id. 1110; Appeal
of Marshall Foundry & Const. Co., Id.
32. On certiorari to review the assessment
for a street improvement, general reasons,
which do not state any specific defect or error
in the proceedings, will not be regarded by the
court.-State v. City of Passaic, (N. J. Sup)
27 A. 909.
33. Notwithstanding the act of 1881, (Supp.
Revision, p. 84, § 1.) provides that it shall be
the duty of the court to determine disputed
questions of fact in proceedings to review the
assessment for a street improvement, still it
must clearly appear that some injustice has
been done, before an assessment will be set
aside.-State v. City of Passaic, (N. J. Sup.)
27 A. 909.
34. Act March 8, 1892, entitled "An act
concerning the levying of assessments for
sewers," and authorizing the assessment of
lands specially benefited by the construction
of "lateral" sewers with not only their cost,
but also part of the cost of the main sewer
into which they empty, is constitutional.-De
Witt v. City of Elizabeth, (N. J. Sup.) 27 A.
801.
35. An assessment made since the passage
of Act March 8, 1892, under an ordinance of
the city of Elizabeth, to build a sewer, which
provides that so much of the costs and expenses
incurred in the making thereof as can be
lawfully assessed on property specially bene-
fited shall be duly assessed according to the
city charter and the general laws of the state.
will be sustained, including benefits for both
trunk and lateral sewers, unless some valid
objection is made thereto.-De Witt v. City of
Elizabeth, (N. J. Sup.) 27 A. 801.
36. A village charter provided that every
person whose drain entered into a common
sewer should be assessed for the cost of its
construction. Petitioner's grantor had paid his
share of the construction of a private sewer,
which was afterwards conveyed, without con-
sideration, to the village. Held, that petitioner
was not liable to an assessment when it be
came necessary to lower the sewer in order to
connect with it another sewer constructed to
drain another distinct territory. Boyden v.
Village of Brattleboro, (Vt.) 27 A. 164.
37. Under a village charter providing that
any persons dissatisfied with the decision of the
bailiffs as to an assessment for contribution for
the building of a sewer may petition the county
court for a reassessment, the court has juris- Collection of water rents Premises
diction to determine the right of the bailiffs to
outside city.
make any assessment.-Boyden v. Village of
Brattleboro, (Vt.) 27 A. 164.
38. Act April 1, 1887, provides that the
mayor and council shall appoint three disin-
terested freeholders of the borough, residing
in different wards, commissioners to
the cost of an improvement. Held, that an
objection that commissioners appointed in ac-
cordance with said act were taxpayers in
the borough, and so not disinterested, was ill
founded. Raymond's Estate v. Borough of
Rutherford, (N. J. Sup.) 27 A. 172.
39. The principle of frontage assessment for
the special benefits arising from street improve
ments is not necessarily inconsistent with the
principle that lands should be assessed only
in proportion to benefits received. If that
mode, in any particular case, properly dis-
tributes the benefits among the owners ben-
efited, there can be no objection.-Raymond's Es-
tate v. Borough of Rutherford, (N. J. Sup.) 27
Enforcement of assessments.
40. Under Act May 23, 1889, art. 15, § 26,
providing that, where paving has been peti-
tioned for, the passage by councils of any ordi-
nance directing the paving shall be held to be
conclusive of the fact that the necessary major
ity of owners have petitioned for it, an affidavit
of defense, in an action against a property owner
for the cost of paving, alleging that the peti-
tion was not signed by a majority of the prop
erty owners, is insufficient.-City of Scranton
v. Jermyn, (Pa. Sup.) 27 A. 66; Same V.
Throop, Id. 67; Same v. Blair, Id.; Same
Chittenden, Id.; Same v. Decker, Id.; Same v.
Fisher, Id.; Same v. Gilmore, Id.; Same v.
Hill, Id.; Same v. Hulbert, Id.; Same v. Jer-
myn. 1d.; Same v. La Bar, Id.; Same v. Shep-
ard, Id.; Same v. Hand, Id.; Same v. Rice, Id.
44. Under Act March 7, 1843, § 4, empower-
ing the mayor, etc., of Pittsburgh to recover
water rents due and unpaid beyond the city
limits, as well as within the same, as city tax-
es are recovered, the city can contract to sup-
ply, water to a customer outside the limits;
and, the customer being bound by his promise
to take it in accordance with the city ordi-
nances and the assessment of water rents in
force in the city, his premises are subject to
the city's lien for unpaid rents equally as if they
were within the limits.-City of Pittsburgh v.
Brace, (Pa. Sup.) 27 A. 854.
Limitation of indebtedness.
debtedness of a city or town to 5 per cent. of
45. Amended Const. art. 22, limiting the in-
its taxable valuation, expressly provides that it
shall not apply to "any fund received in trust
by a city or town." Hence it does not stand in
the way of a city desiring to use a trust fund
in its hands for a public building, paying inter-
est thereon for the purposes of the trust, as
makes the city absolutely responsible for the
permitted by Rev. St. c. 3, § 52. Said section
fund on acceptance of the trust, so that the
change of investment in no way increases its
liabilities.-Ayer v. City of Bangor, 27 A. 523,
85 Me. 511.
Parties in mandamus proceedings.
46. Where a city charter does not provide
for the payment of state school and county
taxes, it is proper, under Tax Act April 11,
1866, in asking for a mandamus to compel
such payment, to make only the city collector
a party without joining any other city officials
or boards.-Shields v. Grear, (N. J. Sup.) 27
Murder.
41. Under Act May 23, 1889, art. 15, § 22,
providing that municipal claims against prop-
erty owners for improvements "shall be prima
facie evidence of all matters therein set forth,"
an affidavit of defense, in an action against a
property owner for the cost of paving, alleging
that the petition was not signed by the neces-
sary majority of property owners, is insuffi-
cient, where the claim on which the action is
based recites that the ordinance requiring the
paving to be done was passed upon petition of See "Insurance," 15, 16.
a majority of the property owners affected.-
City of Scranton v. Jermyn, (Pa. Sup.) 27 A. 66;
Same v. Throop. Id. 67; Same v. Blair, Id.;
Same v. Chittenden, Id.; Same v. Decker, Id.;
Same v. Fisher, Id.; Same v. Gilmore, Id.;
Same v. Hill, Id.; Same v. Hulbert, Id.; Same
Mutual Benefit Insurance.
See "Insurance," 17, 18.
Mutual Fire Insurance Com-
panies.
v. Jermyn, Id.; Same v. La Bar, id.; Same v.
Shepard, Id.; Same v. Hand, Id.; Same v.
Rice, Id.
Waste by adjoining owner-Injunction.
injunction to compel a landowner who has sunk
1. A court of equity will not interfere by
a gas well on his own premises without malice
42. An affidavit of defense to an action for or negligence to stop the flow of gas there-
an assessment for paving in front of defend- from, which has proven insufficient in quanti-
ant's lot is insufficient where it merely states joining owners, whose wells yield gas in suffi-
ty to enable him to utilize it, at the suit of ad-
that the blocks used were "such as are termed cient quantities to enable them to utilize and
thirds, far inferior to the best of asphaltum market it, though defendant's well drains the
blocks," without stating in what the inferiority common reservoir, and thus will ultimately re-
of quality consists, nor that the pavement is induce the flow of plaintiffs' wells.-Hague v.
any respect defective or unsatisfactory.-City Wheeler. (Pa. Sup.) 27 A. 714.
of Harrisburg v. Baptist, (Pa. Sup.) 27 A. 8.
43. Where, in an action against a property
owner to recover a municipal claim for im-
provements, the affidavit of defense alleges
that plaintiff city had no interest in the action,
as it had limited its liability with the contract-
or to the amount of claims recovered, an objec-
tion that the contract was void, in that it was
awarded by resolution, instead of by ordinance,
will not be sustained.-City of Scranton v. Jer-
myn, (Pa. Sup.) 27 A. 66; Same v. Throop, Id.
67; Same v. Blair, Id.; Same v. Chittenden,
Id.; Same v. Decker, Id.; Same v. Fisher, Id.;
Same v. Gilmore, Id.; Same v. Hill, Id.; Same
v. Hulbert, Id.; Same v. Jermyn, Id.; Same
v. La Bar, Id.; Same v. Shepard, Id.; Same
v. Hand, Id.; Same v. Rice, Id.
2. The fact that defendant drilled his well
at considerable cost, at the solicitation of an
adjoining owner, who intended to purchase the
that defendant was not actuated by malice in
gas should its flow be sufficient, is conclusive
drilling the well, even as against third persons,
also owning wells in the vicinity.-Hague v.
Wheeler, (Pa. Sup.) 27 A. 714.
Accidents at highway crossings, see "Railroad
Companies," 5-13.
Contributory negligence, see "Highways," 12,
13; "Horse and Street Railroads," 9; "Master
and Servant," 29.
Contributory negligence, effect, see "Husband | no eyewitness of the accident. The court in-
and Wife," 20.
violating law of road, see "Highways," 14.
Defective highway, see "Highways," 8-12.
streets, see "Municipal Corporations," 15-
In mining, injury to surface, see "Mines and
Mining," 4.
Liability of city, see "Municipal Corporations,"
14-21.
Of carrier of passengers, see "Carriers," 8-13.
Of master, see "Master and Servant," 4–17.
Of street-car companies, see "Horse and Street
Railroads," 7, 8.
Placing refuse in stream, see "Waters and Wa-
ter Courses," 11.
Remote and proximate cause.
1. Deceased was driving a load of hay
over a double-track crossing, provided with
gates, a gate tender, and an electric alarm.
There were two trains coming from opposite
directions, and the alarm began to ring before
deceased reached the tracks. While he was
on the east track, two persons shouted to him
to stop, but they did not know whether he un-
derstood, nor was it shown whether he could
then prudently retreat. The gates were work-
ed together, and the east one fell on the middle
of his load, while the west one prevented his
escape forward. He was struck by the train
on the west track. One witness swore posi-
tively that deceased could have got across had
the west gate been open, and was more or less
corroborated by two others. Held, that the
question of proximate cause should have been
left to the jury.-Prue v. New York, P. & B.
R. Co., (R. I.) 27 A. 450.
2. Where refuse was deposited by a coal
mining company in a stream where every flood
as well as the ordinary current would carry it
gradually down stream, the fact that an ex-
traordinary flood quickened its descent, and
gave the final impulse that lodged it on plain-
tiff's land, does not take away defendant's lia-
bility. Elder v. Lykens Val. Coal Co., (Pa.
Sup.) 27 A. 545.
Dangerous premises.
3. One entering premises of right or by in-
vitation, and using a path which for many
years has been used with the acquiescence of
the owner, is not precluded from recovering for
an injury caused by a hole dug by the owner
in the path, merely because the owner has pro-
vided another way that was safe, and might
have been used. It is a question of fact
whether the path taken by plaintiff has by use
known to defendant gained the appearance of
a way that persons were invited to use.-Phil-
lips v. Library Co. of Burlington, (N. J. Err.
& App.) 27 A. 478.
Contributory negligence.
4. In an action for the death of plaintiff's
husband it appeared that deceased was an as-
sistant stillman in defendant's oil refinery; that
he was required to remove manheads from the
stills after the fires were drawn; that the man-
heads were too heavy to lift and remove with-
out standing in front of the manhole; that he
was fatally injured, when directly in front of
an open manhole, by an explosion of gas in the
still; and that after the explosion the manhead
was found leaning against the still at one side
of the manhole, and a lighted lantern, with its
glass globe cracked, was found about 25 feet
beyond where deceased was found. Held, that
no irresistible inference arose from such facts,
on which verdict could be directed for defend-
ant, that deceased, after removing the man-
head, had negligently passed before the open
manhole with a lighted lantern, and that both
had been thrown by the explosion to the places
where they were afterwards found.-Bannon v.
Lutz, (Pa. Sup.) 27 A. 890.
5. Decedent was found in the morning at
the foot of an embankment near the point
where the alleged defect existed, but there was
structed as to what "due care" meant, as ap
plied to decedent. Held, that the refusal to
charge that in deciding upon the question of
contributory negligence the jury should consider
the character of the highway, the kind of night,
and all other circumstances, did not take from
the jury the facts and circumstances bearing
on the question of due care.-Ryan v. Town of
Bristol, 27 A. 309, 63 Conn. 26.
6. A mill owner whose property has been
injured by the obstruction of the flow of the
water of a stream by the negligent construc-
tion of a county bridge cannot be considered
guilty of contributory negligence, because, be-
fore the construction of the bridge, he had
raised his mill dam, but for which his property
might not have been flooded.-Riddle's Ex'rs v.
Delaware County, (Pa. Sup.) 27 A. 569.
7. In an action against a gas company for
destruction of a house by gas escaping from the
main into the house, through a pipe connected
with it, the valve between the pipe and main
having been opened by defendant's employe,
who had told plaintiff that it would be kept
closed, it is a question for the jury whether
plaintiff was negligent in leaving the end of the
pipe leading into the house open and uncon
nected.-Baker v. Westmoreland & C. Nat. Gas
Co., (Pa. Sup.) 27 A. 789; Id. 792.
Imputed negligence.
8. A corporation that lets to each of sev
eral persons the driving of logs in the same
stream is not liable to one of such persons for
the negligence of another of them.-Darling v.
Passadumkeag Log-Driving Co., 27 A. 109, $5
Me. 221.
exercise of due care when injured is not a
9. An allegation that plaintiff was in the
mere inference or conclusion of law, and is suf-
the particular work he was engaged in when
ficient when accompanied by a statement of
injured, but insufficient when accompanied
merely by a general statement that he was em
ployed to assist in the work of carrying on de
fendant's business. Di Marcho v. Builders'
Iron Foundry, (R. I.) 27 A. 328.
Evidence.
10 Plaintiff, after making out a prima facie
case, by showing negligence on defendant's
part, need not prove that there was no contribu-
tory negligence.-Baker v. Westmoreland & C.
Nat. Gas Co., (Pa. Sup.) 27 A. 789; Id. 792.
11. In an action by an administratrix for
damages for the death of her decedent, caused
by a defective highway, plaintiff must prove,
by a preponderance of evidence, that decedent
was in the exercise of due care.-Ryan v. Town
of Bristol, 27 A. 309, 63 Conn. 26.
Question for court or jury.
12. When a trial judge is requested to non-
suit or direct a verdict in the trial of an ac-
tion for negligence, his duty is to determine
whether facts have been established from which
negligence may be reasonably inferred, and, if
the real facts are in substantial dispute, the
case cannot be taken from the jury.-Newark
Passenger Ry. Co. v. Block, (N. J. Err. & App.)
27 A. 1067.
NEGOTIABLE INSTRUMENTS.
See, also, "Alteration of Instruments."
Action on lost note, see "Lost Instruments."
Failure of consideration.
1. Defendant gave plaintiff his note for the
following agreement: "Bangor, Jan. 20, 1880.
Received of H. $250 for one original share of
the B. Mining Property, as per written agree-
ment, which entitles the owner to his propor
tional number of unassessable shares in the
corporation, when formed, procurable on pres- | exceeding $20, unless his acceptance is in writ-
entation of this receipt to the secretary of the ing, objection to a parol acceptance can only
company by the holder, or his order. Melvin come from the acceptor.-Moeser v. Schneider,
Preble, Trustee." There was no other written (Pa. Sup.) 27 A. 1088.
agreement. Plaintiff then held the property Notice of nonpayment.
in his own right, and not as trustee. Defend-
8. In the written notice of dishonor of a
ant, though his name appeared in the cer-
tificate of organization as owner of 1,000 note, the omission to state the names of all the
shares, was unable to procure a certificate, indorsers, and an error in the amount, will not
and refused to pay the note. Held a personal vitiate the notice, unless the indorser is misled.
contract with plaintiff, who undertook to de--King v. Hurley, 27 A. 463, 85 Me. 525.
liver certificates which would have constituted Waiver of demand and notice.
defendant a shareholder; and plaintiff's failure
to do so was a failure of the consideration of
the note.-Preble v. Hunt, 27 A. 151, 85 Me.
Accommodation paper.
2. Plaintiff held S.'s note, which was past
due, and informed him that he would not ex-
tend payment except upon an obligation of de-
fendants. S. applied to defendants to make
their note for the amount of the old one, to
the order of plaintiff. for the accommodation
of plaintiff and himself. Defendants consent-
ed, and gave their note to S., taking from
him a receipt, which stated that the note was
for the accommodation of plaintiff and S. S.
delivered the note to plaintiff, who promised to
surrender to S. his overdue note. Afterwards
plaintiff indorsed the old note, "Paid by a new
note." but never delivered it to S. Held that,
as between plaintiff and defendants, the new
note was accommodation paper, and a finding
for defendants was proper.-Messmore v. Mey-
(N. J. Sup.) 27 A. 938.
er,
3. One who indorses a note at the request
of and for the accommodation of the maker
may elect in what capacity to become bound,
and, if the payee has already indorsed, and
he signs as second indorser, in the absence
of any agreement with the payee to the contra-
ry, he may look to the payee for payment.-
Wescott v. Stevens, 27 A. 146, 85 Me. 325.
Indorsement and transfer — Bona fide
holders.
4. As against a bona fide indorsee for val-
ue before maturity, one not a party to a note,
either as payee or indorsee, who has indorsed it
at its inception, becomes an original promisor;
and if the indorsement is undated, it is pre-
sumed to have been made at the inception.
Nor do the words "waiving demand and no-
tice" weaken this presumption.-Bradford v.
Prescott, 27 A. 461, 85 Me. 482.
5. Proof of fraud in the inception of a
note casts on the indorsee the burden of
showing that he took it for value be-
fore maturity without notice; but proof that
he paid full value before maturity raises a pre-
sumption that he purchased it in good faith
without notice.-Market & Fulton Nat. Bank
v. Sargent, 27 A. 192, 85 Me. 348.
Notes signed in blank - Right of bona
6. If one signs a printed blank for a note,
and intrusts it to another to have the blanks
filled up, he confers the right, and the note
carries on its face an implied authority, to
fill up the blanks at pleasure, so far as
is consistent with the printed words. As to
all purchasers for value without notice, the
person to whom the blank note is intrusted
must be deemed the agent of the signer; and
an oral agreement between such principal and
agent, limiting the amount for which the note
shall be perfected, cannot affect the rights of
an indorsee who takes the note for a differ-
ent amount, before maturity for value, in
ignorance of such agreement.-Market & Ful-
ton Nat. Bank v. Sargent, 27 A. 192, 85 Me.
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learned that the maker had failed, and that the
9. A second indorser of a note, having
first indorser, who lived in the same place as
the maker, had agreed to meet it, wrote to his
indorsee to recall it. Said indorsee had forward-
ed it through the usual bank channels for col-
lection, and the indorser merely wished to
save the protest charges. The indorsee consent-
ed to recall the note on condition that the new
note should be signed by all the local indorsers.
Three days before maturity the second indorser
received a request from the first indorser to
have the note forwarded for protest. Under
directions from the second indorser, the indorsee
tried by telegraph to order the note forward,
not knowing where it was, but on the day of
maturity it came back to his residence, too
late for protest. Held, that the second indorser
was estopped as against said indorsee to insist
that his waiver of demand and notice should
have been in writing.-Hallowell Nat. Bank v.
Marston, 27 A. 529, 85 Me. 488.
Actions on.
10. In an action by an executor on a note, it
appeared that there was an undated memoran-
dum on the back of it, in the handwriting of
one of defendants, that the note should be pay-
able within two months after a certain lease
expired, "provided the well on said lease should
prove a good, paying well," and that the note
was in the custody of the payee, who died be-
fore trial, until it was entered for judgment;
and there was nothing to show that such de-
fendant ever had any access to the note, or op-
portunity to write anything on it. Held, that
the facts justified the conclusion that the in-
dorsement was made at the time of delivery,
and a part of the note.-Nelson v. Eachel, (Pa.
Sup.) 27 A. 1103.
Newly-Discovered Evidence.
See "New Trial," 3.
NEW TRIAL.
See, also, "Criminal Law," 13.
In general.
1. Rules 35 and 36 of the supreme court
(Corbin's Rules, pp. 49, 50) apply to supreme
court issues referred to the circuit court for
trial pursuant to section 3 of the act of March
9, 1893, (P. L. 1893, p. 158;) and the applica-
tion for a rule to show cause for a new trial
in such cases must be made to the justice of the
supreme court holding the circuit, and the rule
allowed by him will have the same effect as in
cases tried by such justice in the first instance.
-La Valle v. Electric Cutlery Co., (N J. Sup.)
27 A. 1066.
Disqualification of juror.
2. A remark by a juror out of court dur-
ing the progress of a trial that he had no doubt
that the case would go for plaintiff, made be-
fore defendant has introduced his evidence, is
not sufficient to warrant the setting aside of
the verdict, as it does not indicate prejudice, or
show that he had so conclusively made up his
mind that it could not be changed by further
evidence.-Clarke v. Town Council of South
Kingstown, (R. I.) 27 A. 336; Watson v. Same,
Id.
Newly-discovered evidence.
3. In an action for breach of warranty
in the sale of a horse, the breach relied on
was a quarter crack. The verdict was for
defendant. An important witness relied on
by defendant was the smith who usually
shod the horse before the sale, and testified
that the horse had no quarter crack. A wit-
ness, newly discovered, testified that the smith,
after the sale, told him that it had a quarter
crack before the sale. The weight of evidence
was doubtful, and other witnesses were pro-
duced, after the trial, who testified that they
saw the quarter crack before the sale. Held,
that a new trial should be ordered.-Stackpole
v. Perkins, 27 A. 160, 85 Me. 298.
4. In an action on a note given on a pur-
chase of property induced by the vendor's mis-
statements, the jury found for defendant in the
sum of $1,500, and thereafter affidavits of
some of the jurors that they intended to give
plaintiff a verdict for the amount of the note
in suit, less a credit of $1,500, and that they
thought the other jurors so intended, were of-
fered in support of motion for new trial. Held,
that the court properly refused to receive such
affidavits, since they did not allege that the
jurors misunderstood the language of the ver-
dict, but merely that they did not intend what
the plain terms therein used imported.-Smal-
ley v. Morris, (Pa. Sup.) 27 A. 734.
See "Negotiable Instruments."
Not to fish in private pond, see "Fisheries," 6.
Of defects in streets, see "Municipal Corpora-
tions," 16, 17.
Of loss, see "Insurance," 8.
Of nonpayment of note, see "Negotiable Instru-
ments," 8.
Of taking deposition, see "Deposition."
Proceedings to compel support of pauper, see
"Poor and Poor Laws," 6.
To debtor of appointment of receiver, see "Re-
ceivers," 5.
To one partner, effect on firm, see "Partner-
ship," 4.
To quit, see "Forcible Entry and Detainer," 1.
OBSTRUCTING JUSTICE.
Indictment and information.
1. An information for impeding an officer
charges that he was impeded in a direct man-
ner, by alleging that he was impeded and hin-
dered by an assault on his assistants.-State
v. Emery, (Vt.) 27 A. 167.
2. Where the information alleged that re-
spondent knew that the officer was serving pro-
cess, and that the persons with him were assist-
ing him, it was unnecessary to allege that the
officer had asked them to assist him, or that it
was necessary for him to have assistance, as
respondent had no right to assault them,
though their aid was unnecessary, and they
were mere volunteers.-State v. Emery, (Vt.)
27 A. 167.
Of water course, see "Waters and Water
Courses," 5-8.
Of ways, see "Easements."
OFFICE AND OFFICER.
See, also, "Judge:" "Justices of the Peace;"
"Receivers;" "Sheriffs and Constables."
Adjournment of legislature by governor, see
"State Legislature," 3.
Corporate officers and agents, see "Corpora-
tions," 5, 6.
Municipal officers and agents, see "Municipal
Corporations," 4.
Officers of towns, see "Towns," 1.
Officers de facto.
A tax collector, not sworn, but acting un-
der color of his office, is collector de facto, and
has the right, as between the town and tax-
payer, to receive and receipt for the taxes
Ellsworth, 27 A. 177, 85 Me. 301.
paid him as such officer.-Whiting v. City of
Action for penalty Interstate com-
merce and sale in original package.
In an action to recover the penalty for
a violation of Act May 21, 1885, § 3, prohibit-
ing the sale of oleomargarine as an article of
food, a statement in the case stating that the
package sold was "made, stamped, and brand-
ed" by defendant's principal, à manufacturer
residing in a foreign state, is not a sufficient
assertion that the package sold was an "orig-
inal package," and thus an article of interstate
commerce.-Commonwealth v. Schollenberger,
(Pa. Sup.) 27 A. 30.
Opinion Evidence.
1. An indictment alleging that defendants
did, on the public streets and highways, pro-
fanely curse and swear, and take the name of
God in vain, to the evil example and to the See "Evidence," 13-25.
common nuisance of the good citizens of the
state, does not charge a common nuisance, in
the absence of any averment that the utter-
ances were in the presence of citizens and in
their hearing, and that the manner and occa-
sion of making them were of the offensive and Acceptance--Requirement of writing.
annoying character necessary to make them a
public nuisance.-Commonwealth v. Linn, (Pa.
Sup.) 27 A. 843.
Injunction-Riparian rights.
2. An injunction will issue to restrain a
riparian proprietor from maintaining a narrow
strip of his wharf in deep water below low-
water line in front of another proprietor's
wharf, when the nuisance is permanent, and
the injuries caused by it, though small, are fre-
quent and annoying, not easily measureable or
adequately compensated for by actions at law.
Proprietors of Maine Wharf v. Proprietors of
Customhouse Wharf, 27 A. 93, 85 Me. 175.
Appealable, see "Appeal," 2-4.
1. Act May 10, 1881, providing that no per-
son shall be charged as acceptor of an order un-
less the acceptance be in writing, is for the ben-
efit of the acceptor alone, and none other can
take advantage thereof.-Ulrich v. Hower, (Pa.
Sup.) 27 A. 243.
Who may object to parol acceptance.
2. Under Act May 10, 1881, (P. L. 17.) pro-
viding that no person shall be charged as an ae-
ceptor of a bill of exchange, draft, or order. ex-
ceeding $20, unless his acceptance is in writing,
the objection to a parol acceptance can only
come from the acceptor.-Moeser v. Schneider,
(Pa. Sup.) 27 A. 1088.
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