See Contracts, 11, 12; Forgery; Railroad Companies, 8.
1. REAL ESTATE, WATER, WHEN A PART OF.-Subterrane- ous water not flowing in a definite course or channel, but percolating and seeping through the earth, is a part of the realty. It belongs to the owner of the land as much as the rocks or stones in it. (Metcalf v. Nelson, 746.)
2. NUISANCE-DANGEROUS PREMISES.-A landowner in a city who fails to fill, or fence, or inclose by a wall, a dangerous ex-. cavation on his premises adjoining the street as required by ordinance, is liable for injuries resulting to a stranger therefrom. (Bucz v. Cavanaugh, 504.)
3. NUISANCE-DANGEROUS PREMISES-TRESPASSER.-A landowner in a city who fails to fill or inclose a dangerous excava- tion on his premises, as required by an ordinance, is not liable in damages for an injury to an intelligent boy twelve years of age, who, contrary to the warning of his father, becomes a trespasser by vol untarily going into such excavation. (Butz v. Cavanaugh, 504.)
4. HIGHWAYS-DANGEROUS EXCAVATIONS-PROXIMIT -LIABILITY FOR INJURIES.-One who digs an excavation near a highway, and leaves it unguarded, is not answerable in damages to a person who departs from the highway and is injured by falling into such excavation, unless it is so near the highway as to endanger those who use the way with reasonable care. Hence, if one, ignorant of the locality, wanders in the dark at night, from a public highway, over an unused strip of land, fifteen feet in width, belonging to a third person, into the land of a railroad company, and, after crossing five feet of it, falls, with his horse and buggy, into an unguarded railroad cut, made before the construction of the highway, and is in- jured, the railroad company is not liable therefor, as the cut, in such a case, does not substantially adjoin the highway, and is not dan- gerous to those who use it with care, where all the land crossed is a foot or more above the crown of the highway, and constitutes a bar- rier sufficient to excite caution after departing from the highway. (Daneck v. Penn. R. R. Co., 613.)
5. PLEADING.-IN AN ACTION TO RECOVER POSSESSION OF REAL PROPERTY, a complaint which states that the defend- ant mortgaged such property to plaintiff, and then agreed to convey it to him in satisfaction of the mortgage debt, that such conveyance was thereupon made, and that the defendants are in possession of the property and have refused, after a demand, to deliver it up to the plaintiff, is fatally defective, because it sets up mere matters of evidence, and does not contain any statement of seisin, or owner- ship, or right of possession on the part of the plaintiff. (McCaughey v. Schuette, 176.)
RECEIVER, APPLICATION FOR. WHEN PLACES PROP- ERTY IN THE CUSTODY OF THE LAW.-If a bill is filed having for its object the appointment of a receiver to take into custody the property of the defendant and to pay and discharge all his liabilities therefrom, the jurisdiction of the court at once attaches to such property, so that no interference with it on the part of other courts will be allowed. (Reisner v. Gulf etc. Ry. Co., 84.)
See Attachment, 3; Banks and Banking, 2; Corporations, 24.
REFERENCE. See Appeal, 6.
REINSTATEMENT.
See Insurance, 23, 24
1. RELIGIOUS ASSOCIATIONS — PROPERTY OF-DIVER- SION.-Property given or set apart to a church or religious associa- tion for its use in the enjoyment and promulgation of its adopted faith and teachings is by such association held in trust for that pur- pose, and any members of such association less than the whole have no power to divert it therefrom. (Park v. Chaplin, 353.)
2. RELIGIOUS ASSOCIATIONS-POWER TO DIVERT PROP. ERTY OF.-A church or religious association incorporated as a cer tain branch of a particular creed or denomination, cannot, without the consent of all of its members, transfer its property acquired for its benefit as such corporation to another branch of the same denomi nation or creed holding different doctrines and beliefs. (Park v. Chaplin, 353.)
3. RELIGIOUS ASSOCIATIONS-PROPERTY RIGHTS-RIGHT TO DIVERT.-Although a church or religious association incorpo- rated as a branch of a certain denomination has become a member of a higher body of the same denomination with power only in ecclesi- astical matters, the rules of which provide that a church in good standing as a member shall, on request for dismissal to another de nomination or branch of the same denomination, receive a letter of recommendation, this does not confer upon the first-named church association power to transfer without the consent of all its mem- 'bers to another. denomination, nor to a branch of the same denomi nation, property acquired for its use as originally incorporated. (Park v. Chaplin, 353.)
REMEDIES.
See Actions, 9, 10.
REPLEVIN. See License, 3.
See Contracts, 18, 14; Insurance, 25-28; Sales, 1, 2, 4; Vendor and
RES GESTAE.
See Evidence.
RES JUDICATA.
See Judgment.
1. SALES-RIGHT TO RESCIND. If the purchaser of goods pays the freight charges thereon, and they are delivered to him as directed by the seller, upon his acceptance of a draft drawn upon him by such seller, the latter cannot rescind the sale and recover the goods without returning or tendering the accepted draft to the purchaser, and he is not released from this obligation by the in- solvency of the purchaser. (Wilcox v. San Jose etc. Co., 135.)
2. SALES-CONTRACT FOR-RESCISSION.-To entitle a ven- dor to rescind a sale of goods and recover them from the purchaser, he must first restore the latter to the same condition and advantage, so far as can be reasonably done, as he occupied before the pur- chase, and his insolvency does not excuse this duty on the part of the vendor. (Wilcox v. San Jose etc. Co., 135.)
8. AN ELECTION TO RESCIND A SALE FOR FRAUD HAV- ING BEEN MADE BY SUING TO RECOVER POSSESSION of the property, the vendor cannot afterward exercise or claim the right of stoppage in transitu. The exercise of the right of stoppage in transitu does not operate to rescind a sale. But the vendee still has the right to take the goods on payment of the purchase price. (Kearney etc. Co. v. Union Pac. Ry. Co., 434.)
4. RESCINDING SALE FOR FRAUDULENT PURPOSE OF VENDEE NOT TO PAY.-If goods are sold on credit, and the vendee has a secret intention not to pay for them, the vendor, on discovering that intention, has the right to rescind the sale, though the goods have passed into the possession of the purchaser. (Kearney etc. Co. V. Union Pac. Ry. Co., 434.)
5. WARRANTY, WAIVER OF WRITTEN NOTICE OF.-If a purchaser, claiming that a machine does not conform to a warranty thereof, returns it to the agent of whom he purchased, and demands a return of notes given therefor, which the agent agrees to make, this is a waiver of the written notice of a breach of warranty, if the agent has authority to make such a waiver. (Peterson v. Wood Mowing etc. Co., 399.)
6. SALES-FRAUD-RETURN ON ATTACHMENT AS EVI- DENCE.-If, in an action to recover attached property under a claim of purchase before attachment, the attachment is defended on the ground that the purchase was fraudulent and the jury so finds, it is harmless error to admit in evidence the return on attachment tend- ing to show that the attachment levy was defective, as, under the finding, the plaintiff is not entitled to the property, and his rights cannot be made to depend on whether the levy was valid or not. (Klotz v. James, 348.)
1. SCHOOLS-VACCINATION OF CHILDREN - REQUIRE- MENT AS TO.-There is no law of the state of Illinois requiring vaccination as a condition precedent to the exercise of the legal right of every child in that state, of proper age, to attend public schools. (Potts v. Breen, 262.)
2. SCHOOLS-VACCINATION OF CHILDREN.-THE POWER TO COMPEL the vaccination of children as a prerequisite to the exercise of their right to attend public schools can be derived from no other source than the general police power of the state, and can be justified upon no other ground than as a necessary means of preserving the public health. (Potts v. Breen, 262.)
See Boards of Health, 5, 6.
1. SETOFF-PLEA OF ADMITS VALIDITY OF CONTRACT.— A defendant who pleads a setoff and recoupment thereby admits the validity of the contract sued on. (Ansley v. Bank of Piedmont, 122.)
2. SETOFF.-PLEAS WHICH SET UP A BREACH OF CON- TRACT in support of a claim of recoupment or setoff must be as distinct and unambiguous as if suing directly for the breach of the contract. (Ansley v. Bank of Piedmont, 122.)
3. SETOFF.-BREACH OF PROMISE CONTRACTUAL IN ITS NATURE to support a claim of recoupment or setoff, must be one capable of enforcement, and, if void under the statute of frauds, or the damages for its breach are too speculative or remote to be cap- able of ascertainment with reasonable certainty, they are not recov
erable by way of recoupment or setoff. (Ansley v. Bank of Pied- mont, 122.)
4. COUNTERCLAIM, CONSTRUCTION OF STATUTES RE SPECTING.-Statutes giving defendants a right to assert counter- claims should be liberally construed. (McHard v. Williams, 766.)
5. COUNTERCLAIM, WHEN ARISES OUT OF THE SAME TRANSACTION, OR IS CONNECTED WITH THE SUBJECT OF THE ACTION.-Under a statute providing that the defendant may plead any counterclaim arising out of the cause of action set forth in the plaintiff's complaint, or connected with the subject of the action, a defendant, sued to foreclose a mortgage on real property, may plead that at the time the note sued upon was given, and as part of that transaction, he executed to the plaintiff a chattel mortgage to secure the same note, that the plaintiff after- ward without the consent of the defendant, altered such mortgage in a material respect, and, subsequently pretending to foreclose it. the plaintiff unlawfully took and carried away certain personal prop- erty described therein, and converted it to his own use to the damage of the defendant in a sum specified. (McHard v. Williams, 766.)
6. SETOFF-DAMAGES WHEN REMOTE.-In an action on a note given for the purchase price of land, damages to the vendee arising from the failure of the vendor to secure the location of valu- able improvements in the town in which such land is situated, and which it was represented would be there located, are too specula- tive and remote to form the basis of a plea in setoff or recoupment. (Ansley v. Bank of Piedmont, 122.)
1. SHIPPING · JURISDIC- TION.-If a maritime lien exists by reason of maritime law, as dis- tinguished from a contract lien or lien given by state statute, the federal courts have exclusive jurisdiction, and no contract of the parties nor state statute declaring a lien in such cases and providing a remedy can oust the federal courts of their exclusive jurisdiction. (Scatcherd Lumber Co. v. Rike, 147.)
MARITIME LIENS-FEDERAL
2. SHIPPING--MARITIME LIENS-STATE JURISDICTION.— In all cases where the federal courts have not exclusive jurisdiction, it is competent for the states to legislate relative to shipping con- tracts and torts, create liens upon vessels, boats, and instruments of water conveyance, even upon navigable rivers, and provide for the enforcement of such liens. (Scatcherd Lumber Co. v. Rike, 147.)
3. SHIPPING-MARITIME LIENS-RIGHT OF STATE TOs CREATE.-A state statute creating a lien for materials and supplies furnished and work and labor performed in the original construc- tion of a vessel or boat, or for repairs made upon it while in the home port, and providing for the enforcement of such lien, is valid and constitutional, for the reason that in such cases no maritime lien exists over which the federal courts have exclusive jurisdiction. (Scatcherd Lumber Co. v. Rike, 147.)
4. SHIPPING - MARITIME LIENS-BILL TO ENFORCE- JURISDICTION.-The home port of a vessel is where the owner re- sides, and a bill filed in a state court to enforce a lien given by statute for work done and material furnished in repairing a vessel while in the home port, which alleges that such work was done and material furnished in repairing the vessel while in the home port, but also alleges that the owners are nonresidents, and the evidence shows that the vessel plies on waters within the state. is insufficient to confer jurisdiction upon the state court. (Scatcherd Lumber Co. v. Rike, 147.)
EVIDENCE-RES GESTAE.-In an action for slander in charging a married woman with adultery with a certain person, af. ter a witness has testified that some time before the time of the alleged slander he met the plaintiff and her husband, that plaintiff was crying, and upon being asked by the witness what was the matter, she replied that her husband could tell him, further testi. mony by such witness that he and plaintiff's husband soon there- after started away, and that, in the absence of the plaintiff, her hus- band then stated to the witness that his wife had confessed to hav. ing been guilty of adultery with such named person, is not admis sible as part of the res gestae. (Robertson v. Hamilton, 319.)
SPECIAL VERDICT. See Trial, 10.
SPRINGS OF WATER.
See Waters and Watercourses.
See Agency, 4; Contracts, 16; Corporations, 9; Mortgage, 4; Vendor and Purchaser, 7-10.
STATUTE OF LIMITATIONS.
See Limitations of Actions.
1. STATUTES-CONSTRUCTION.-In determining the meaning of an existing statute, the prior law and all changes therein should be considered. (State v. Hostetter, 515.)
2. STATUTES, REPEAL OF BY IMPLICATION.-A statute au- thorizing the service of process by publication in actions before jus- tices of the peace is not repealed by a subsequent statute authorizing the governor to select and designate an official paper in which, with- in any given district, publication may be made. (Hambel v. Davis, 46.)
3. CONSTITUTIONAL LAW REDEMPTION, STATUTES PURPORTING TO AFFECT.-After a sale has been made under execution, the rights of the purchaser and the judgment debtor are fixed as by contract, and the legislature cannot subsequently author- ize a redemption after a longer time, or for a less sum, than was required by the law in force when the sale was made. (Thresher v. Atchison, 159.)
See Banks and Banking, 3; Boards of Health, 14; Criminal Law, 1; Execution, 3; Executors and Administrators, 1; Game Laws; Husband and Wife, 1, 3, 5; Mandamus, 4; Mechanic's Lien, 1, 3; Municipal Corporations, 1; Negligence, 5, 6, 9; Officers, 1, 2; Rail- road Companies, 12; Setoff, 4; Shipping, 3; Suretyship, 10; Trusts, 1-3.
STOPPAGE IN TRANSITU. See Sales, 3.
PRACTICE-SUBMISSION ON AGREED FACTS-SUBSE- QUENT EVIDENCE.—If a case is submitted on agreed facts, the court has no power, without first setting aside such submission, to permit one party, over the objection of the other, to introduce ad- ditional facts in evidence, the existence of which was well known prior to such submission. (Wilcox v. San Jose etc. Co., 135.)
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