« AnteriorContinuar »
investigation, and that the charges were | LIBERTY.
true and that the report was taken up and
considered by the body, at which time pe-
titioners had an opportunity to be heard
in their own behalf.
NOTES AND BRIEFS.
Legislature powers and privileges of;
right to expel member; exercise of power
beyond control of judiciary.
LEVY AND SEIZURE.
What property exempt.
1. The deposit by the beneficiary of the
proceeds of a life-insurance policy, which
are exempt from execution for her debts,
in a bank, does not destroy the exemption.
Holmes v. Marshall (Cal.)
2. The exemption from execution of the
proceeds of insurance policies is not limited
to claims against the insured, but extends
to those against the beneficiary, under a
statute providing that all moneys, benefits,
privileges, or immunities accruing, or in
any manner growing out of, life insurance,
are exempt from execution: and the same
rule applies where the policy is payable
to the estate of the assured, and, being ex-
empt from his debts, the proceeds are dis-
tributed to his widow under the statute as
his next of kin.
Setting aside levy.
3. The court may set aside the levy of
an attachment upon exempt property. Id.
natural meaning of words.
LIBERTY OF SPEECH OR PRESS.
As Limitation on Exercise of Right to
Privacy, see PRIVACY, 2.
Of Attorney; Revocation, see ATTOR-
Authority of Municipality as to, see
MUNICIPAL CORPORATIONS, 1.
Necessity of Ophthalmologist Procur-
ing, see PHYSICIANS.
1. A license is a personal privilege to do
certain acts upon the lands of another, but
creates no estate therein, is revocable at
will, and may rest in parol; while an ease-
ment is an estate in real property, and its
grant falls within the statute of frauds.
Howes v. Barmon (Id.)
2. Unless the evidence be clearly to the
contrary, a court will presume that a parol
agreement to impress real property with a
servitude was made with a knowledge of
the provisions of the statute of frauds, and
was therefore intended as a license only,
and not as an easement.
3. A license, revocable by the licensor,
and not an easement, is created by oral per-
mission to use a stairway on the outside
of a building to reach the second story of
an adjoining building, in consideration that
those to whom such permission is given
will allow the owner of the stairway to
erect a porch at the back end of his build-
ing, on a strip of vacant land owned by
the other parties.
NOTES AND BRIEFS.
License; upon private property; defi-
nition of; revocation.
Remedy for Enforcing, see ACTION OR
1. The life estates created by statute,
giving a surviving husband or wife one-
third interest for life in the real estate of
the other, are subject to the incidents of
common-law life estates, although they are
not the same as the common-law estates;
and the life tenant is therefore impeach-
able for waste. Swayne v. Lone Acre Oil
2. One entitled to an undivided life es-
Libel and slander; in charging one with tate under a statute giving a surviving hus-
doing what the law authorizes to be done: band or wife a one-third interest in the
definition of libel: innuendo to change real estate of the other cannot demand
102 absolutely any part of the production of
fore, and will be stayed after, the time
fixed by the analogous statute of limita-
tions at law; but, if unusual conditions
make it inequitable to allow the prosecu-
tion of a suit after a briefer, or to forbid
its maintenance after a longer, period than
that fixed by the statute, the chancellor
will not be bound by the statute, but will
determine the extraordinary case in ac-
cordance with the equities which condition
it. Williams v. Neely (C. C. App. 8th C.)
Equitable remedies; laches.
2. It is not culpable laches for one who
has an equitable defense or reduction to a
promissory note which has been and is the
subject of pending litigation in another
court, and which, if available at law, would
survive as long as the cause of action upon
the note existed, to wait until an affirma-
tive action at law upon the subject of the
defense is barred, and until the equitable
defense is rejected in an action at law upon
the note, before invoking the aid of a court
of equity to enjoin the prosecution of the
latter action until his equitable defense is
Effect of bar of other claim or remedy.
3. The defense of reduction or recoup-
ment, which arises out of the same trans-
action as a promissory note or claim, sur-
vives as long as a cause of action upon
the promissory note or claim exists, al-
though an affirmative action upon the sub-
ject of the defense may be barred by the
statute of limitations.
is unpaid, or by a like new promise to pay | MAIL.
the same. Kleis v. McGrath (Iowa) 260
7. Payment of the taxes due on mort-
gaged premises by one who purchased the
property subject to the mortgage, but did
not assume its payment, does not suspend
the running of limitations against the
right to foreclose the mortgage, which had
been started by failure of the mortgagor
to pay at maturity the first of a series of
notes secured by the mortgage and taxes
due at that time, the mortgage providing
that nonpayment of any one of the notes,
together with nonpayment of taxes due on
the premises, should mature the entire
debt. Snyder v. Miller (Kan.)
NOTES AND BRIEFS.
Limitation of actions; running
against defense arising out of same trans- MARKETABLE TITLE.
action as claim sued on.
See VENDOR AND PURCHASER.
The fact that each member is entitled
to trade out of the amount he has paid in
whenever he chooses to withdraw from the
club does not prevent a suit club, which is a
scheme by which a certain number of per-
sons pay a small sum per week, and choose
by lot each week one of the number who
shall receive a suit of clothes worth much
more than such weekly payment, upon re-
ceipt of which he ceases to be a member of
the club, from being a lottery. People v.
Contract by, see CONFLICT OF Laws, 2.
NOTES AND BRIEFS.
Mandamus; to compel court to proceed
with trial; where party is in contempt. 312
To compel courts and judges to approve
and accept bonds; to compel performance
of act by officer who pleads authority of un-
constitutional act for nonperformance. 428
To restore to membership one expelled
from state legislature; mandamus from one
branch to co-ordinate branch; not issued
when not effectual or beneficial; to control
discretion of lawmaking branch of govern-
Law Governing, see CONFLICT OF LAWS,
As Consideration for Contract, see CON-
Liability for Maliciously Procuring
Breach of Contract of Employment,
Damages for Breach of Contract of Em-
ployment, see DAMAGES, 5.
Question for Jury as to Contributory
Negligence of Brakeman, see TRIAL,
Master's duty as to appliances.
Proximate Cause of Injury to Servant
by Fall of Derrick, see PROXIMATE
See also TRIAL, 20.
1. There is no distinction between the
construction of the appliances furnished for
the use of a servant and their maintenance,
so far as the right of the master is concerned
to absolve himself from liability for injuries
by furnishing suitable materials to a com-
pete person, to be used for that purpose.
Rincicotti v. John J. O'Brien Contracting
2. Failure of an engineer to observe a
custom of the road, when cars are being
coupled together, to stop his engine imme-
diately when the cars come together and hold
it stationary until signaled by the brake-
men making the coupling to move it again,
is negligence rendering the company liable
for injury to a brakeman in consequence
thereof. Schus V. Powers-Simpson Co.
3. An employer without the necessary
technical knowledge to enable him to deter- | mand relative to the handling of the cars.
mine whether or not a boiler furnished by Dill v. Marmon (Ind.)
him is safe may rely upon the statement of
the official city boiler inspector, so far as his
duty towards his employees is concerned.
Service v. Shoneman (Pa.)
11. After a master has exercised due care
in the selection of servants, the danger aris-
ing from the negligence of a fellow servant
is one which is voluntarily assumed by a
4. Negligence by an employer in furnish- person going into the service of the master;
ing an unsafe boiler is rebutted, so as to ab- it being a risk for which satisfactory com-
solve him from liability for injuries to empensation is presumed to have been rendered
ployees by its explosion, where, before its by the larger wages he can earn in such
purchase, he made extended inquiries as to service than in other employments. Louis-
which boiler was best, and purchased the one ville & N. R. Co. v. Dillard (Tenn.) 746
recommended after its superiority was point-
ed out, paying a larger price than was asked
for others; and it had been used in his es-
tablishment three years before the accident
without complaint, and was exclusively used
and favored by the owners.
5. That a boiler furnished by an employer
for the use of his employees contains an
unsafe device will not render him liable for
injuries to them by reason of such defect, if
he procured it in the exercise of business
prudence, and it was one in ordinary use. Id.
6. The failure to box or otherwise pro-
tect a rapidly revolving upright shaft coming |
up through the floor in an alley or passage
way where an inexperienced girl is required
to sweep, and who is not warned of the dan-
ger, may be found by the jury to constitute
negligence which will render the employer
liable for injuries to her when her clothing
is caught and wound upon the shaft. Ameri-
can Tobacco Co. v. Strickling (Md.) 909
7. Mere knowledge of an employee of a
contractor for the setting of the stone work
of a building, of a custom that the scaffold
ing shall be furnished by the brick contrac-
tors, does not amount to a waiver of his right
to hold his employer responsible for the
safety of a scaffold furnished for him to
McBeath v. Rawle (Ill.) 697
Master's duty to be present.
8. The mere fact that a place where a
servant is working is rendered temporarily
unsafe in the execution of the details of the
service does not, alone, make it the duty of
the master to be present in person, or by
representative, to protect the servant from
harm. Dill v. Marmon (Ind.)
Duty to inspect.
9. The master is bound to make reason-
able inspection of appliances used to aid his
servants in their work, and he cannot re-
lieve himself from the consequences of his
failure to do so by delegating the duty to
competent employees. Rincicotti v. John J.
O'Brien Contracting Co. (Conn.) 936
Assumption of risk.
10. A servant engaged in assisting in shift-
ing cars to be loaded at a mill assumes the
risk of the foreman giving a negligent com-
12. A direction by a foreman to an em-
ployee assisting in shifting cars to be loaded
at a mill, to push a car put in motion by
the impact of another before it has lost its
momentum, is not such a change in his work,
although he has never done that particular
act before, as to authorize him to proceed at
the master's risk. Dill v. Marmon (Ind.)
13. A railroad engineer who obeys, al-
though reluctantly, an order to take his
train through a mountainous region on its
regular trip at a time of heavy rains, when
land slides are anticipated, assumes the risk
of such slides, and cannot hold the company
responsible in case his train is carried from
the track by a slide which comes upon it so-
suddenly that there is no time to escape,
and the danger of which was not observed
by a track inspector, who had passed the
spot just before the train reached there;
since it must be regarded as pure accident.
Kinzel v. Atlanta, K. & N. R. Co. (C. C.
App. 6th C.)
freight train, so as to render the railroad
company liable for injury to the latter by
his negligence. Louisville & N. R. Co. v.
17. A servant employed to assist in shift-
ing cars to be loaded at a mill cannot hold
the master liable for an injury caused by
the negligence of the foreman in charge of
the two or three men engaged in such work,
but who is not at the head of a department
of the work, in directing him to push a car
after it has been set in motion by the mo-
mentum of another car, or in failing to
stop the latter after the servant, in attempt
ing to obey the order, has slipped and fallen
in such a way that he will be injured in case
it is not stopped. Dill v. Marmon (Ind.)
18. The doctrine of fellow service will not
defeat the liability of a steamship company
for death of a member of the crew through
the sinking of the vessel, although the cause
of the accident was the negligence of the
master and pilot, where the loss of life was
due to inability to launch the boats because
of insufficiency of the crew in that they
could not understand the language of the
officers, and had not been drilled in lowering
the boats. Re Pacific Mail S. S. Co. (C. C.
App. 9th C.)
19. An employee injured by the negli-
gence of another while both are acting in
the line of duty as employees of a corpora-
tion has a right of action against the com-
pany, under the Indiana employer's liabil-
ity act of 1893. Pittsburgh, C. C. & St. L.
R. Co. v. Montgomery (Ind.)
20. Negligence of a superior servant of a
railroad company, causing injury to an em-
ployee under his control, renders the em-
ployer liable under Ohio act April 2, 1890,
although the negligence was in respect of
the performance of work of the kind done by
the injured person, and not in the perform-
ance of any duty imposed by law on the
master personally. Peirce v. Van Dusen
(C. C. App. 6th C.)
same dangers and risks as are employees of
railroad corporations engaged in the busi-
ness of a common carrier. Schus v. Pow-
ers-Simpson Co. (Minn.)
21. An action against a receiver of a
railroad corporation is within the provisions
of Ohio act April 2, 1890, making railroad
companies liable in certain cases for the
ligence of fellow servants or employees who
have power or authority to direct or control
the one injured.
22. A corporation operating a "logging
railroad," not as a common carrier, but ex-
clusively for its own private business, is
subject to the provisions of a statute mak-
ing railroad corporations liable for injuries
to servants caused by the negligence of fel-
low servants, since its employees engaged in
the operation of the road are exposed to the
23. A statute making void a contract by
a corporation for the release or relief from
liability to an employee for negligence of a
fellow servant is not unconstitutional.
Pittsburgh, C. C. & St. L. R. Co. v. Montgom-
24. An agreement by a railroad employee
that the acceptance of benefits from a relief
fund shall operate as a release of all claims
against the railroad company is void, un-
der the employer's liability act of 1893, al-
though the release is only conditional.
Liability to third persons for serv-
Assumption by brakeman of risk of coup-
ling cars; action to recover; necessity of
proving what particular precaution defend-
ant should have taken, but did not; negli-
gence of engineer in failing to keep engine
stationary until coupling is made; contribu-
tory negligence of brakeman; abrogation of
fellow servant doctrine as to railroads;
what is a "railroad."
Duty to furnish safe appliances; measure
of care; furnishing appliance in ordinary
use; where there are safer appliances; lia-
bility for error in judgment in selecting ap-
pliances; right to rely on inspection of ap-
neg-pliances by public officials.
Defective appliances; when servant may
recover for injury caused by; duty of in-
spection; negligent construction of scaffold;
where scaffold erected by independent con-
tractor; liability of master for safety of
machinery and appliances furnished and
built by other contractor; duty to furnish
safe place to work; delegation of duty of
inspection; choice of methods of doing work
by employee; employee's knowledge of dan-