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tory to find the address of an indorser, whose address was not upon the note. finding it, he inquired of the maker, who gave him a wrong address, to which he mailed notice:

Held, that this was due diligence and sufficient to charge the indorser: Gantrey v. Doane, 51 New York, 84.

16. One B. through fraud procured of defendants goods upon credit, for which he gave his notes, and as collateral security gave a mortgage upon lands which he did not own, and transfered a fictitious note and a policy of life insurance. To settle defendants' claim, B. through fraud, of which defendants had no knowledge or notice, procured plaintiff's indorsement to two notes made by B., payable to defendants, which were to be and were used in taking up the old notes, and upon receipt defendants surrendered said notes and the collaterals. Upon discovery of the fraud plaintiff brought suit to have his indorsement cancelled:

Held, that although the presumption of law from the face of the note was that the plaintiff was only liable as subsequent indorser, yet appearing that he intended to become security for the debt to the payees, he was liable as such; that the surrender of the original notes was a sufficient consideration to make defendants bona fide holders of the new notes, and that their position as such was not affected by the fact that they were the payees named therein and that plaintiff therefore had no cause of action: Clothier v. Adriance, Ib., 322.

17. Where A. makes his note for the accommodation and general benefit of B. without restrictions, and B. transfers the same to C. in payment of, or as security for, an antecedent debt, the existence of the debt is a sufficient consideration for the transfer, and C. can maintain an action on the note against A.: Schepp v. Carpenter, Ib., 602.

BOND.

1. A recital in a bond given by one co-partner to another, upon dissolution of the co-partnership, setting forth as the consideration therefor, the transfer and the delivery by the obligee to his former partner of the assets of the firm, is a substan-. tive part of the agreement, and can not be varied or contradicted by parol evidence. Where a bond is delivered to the obligee or his agent, it can not be shown by parol that it was delivered as in escrow : Cocks v. Barker, 49 New York, 107.

BOND FOR TITLE.

1. A deed or bond for titles to a tract of land, by its number in the State survey, binds the obligor to make title to the land within the boundaries of such survey, and if a part be sold off before the date of the deed, this is a breach of the bond, nor is this breach excused by the fact that the quantity sold off is small, and the bond describes the number, containing two hundred and two and one-half acres, more or less: Smith v. Eason, 46 Georgia, 316.

2. Proof that the obligee in a bond for titles, knew that the obligor was not the owner of the whole of the land described in the bond, is no reply to a plea of a breach unless it appear that there was a mistake in the description: Ib.

BOUNDARIES.

Practical location and acquiescence for a less term than twenty years in an erroneous boundary line, can not be claimed to the exclusion of evidence of the true line, where the premises were wild and uncultivated, and practically unoccupied : Townsend v. Hazt, 51 N. Y., 656.

BROKER.

1. A party having employed a broker to sell real estate, may, notwithstanding, negotiate himself, and if he does so without any agency of the broker, he is not liable to the latter for a commission. To entitle the broker to his commission, he must be an efficient agent in or the procuring cause of the contract: McClave v. Paine, 49 N. Y., 651.

2. To entitle a real estate broker to compensation, it is sufficient that a sale is effected through his agency, as its procuring cause, and if his communications with the purchaser are the means of bringing him and the owner together, and a sale results in consequence, the compensation is earned, although the broker does not negotiate, and is not present at the sale: Lloyd v. Mathews, 51 N. Y., 124.

CARRIER.

1. If a passenger on a railway train, before entering the car, properly applies at the ticket office of the agent of the company for a ticket, and, without fault on his part, but from either the willfulness or the mistake or inadvertence of the ticket agent, is unable to procure one, he, when, according to the rules of the company, fare in addition to the price required to purchase a ticket is demanded of him by the conductor on the cars, may pay, under protest, the excess demanded, and afterwards by suit recover it back; but he is not obliged to do so; on the contrary, he is entitled to be carried at the ticket rate without paying the excess demanded, and has the choice of paying the excess, or of insisting upon his right to be carried at the ticket rate, and holding the company responsible in damages for a refusal to carry him: The Jeffersonville R. R. Co. v. Rogers, 38 Indiana, 116.

2. If, when insisting upon his right, in such case, to be carried at the ticket rate, the passenger is, by the conductor of the train, expelled from the car in a spirit of oppressive malice or wantonness, he is entitled to recover exemplary damages against the company; a verdict for which damages an appellate court will rarely set aside for excess, merely: Ib.

3. In such case, the passenger wrongfully expelled from the cars, may be entitled to exemplary damages by reason of the time, place, circumstances, and manner of expulsion, though no harsh or unneccessary means were resorted to in order to effect his expulsion: Ib.

4. A person who undertakes, though it may be only pro hac vice, to carry by river, for hire without special contract, incurs the responsibility of a common carrier: Moss v. Bettis, 4 Heiskell, 661.

5. Where goods are shipped by railway, and arrive at their destination within the usual time required for transportation, and are there deposited by the company in a place of safety, and held by them ready to be delivered on demand, their liability as common carriers ceases, (unless the custom of trade is shown to be otherwise as to delivery,) and that of warehousemen commences: Southern Railroad Company v. Felder, 46 Georgia, 433.

6. No notice to the consignee, where the goods arrive on time, is necessary to reduce the liability of the company from that of common carriers to that of warehousemen: Ib.

7. If the goods arrive out of time, and after they have been demanded by the consignee, it might require notice of their arrival to the consignee, and a reasonable time after, to relieve the company from the extraordinary liability imposed by law upon a common carrier: Ib.

CAUSE OF ACTION.

1. He who, by his negligence or misconduct, creates or suffers a fire upon his own premises, which, burning his own property, spreads thence to the immediate adjacent premises, and destroys the property of another, is liable to the latter for the damages sustained by him: Webb v. R. W. & O. R. R., 49 New York, 420.

2. The complaint set forth a lease of certain hotel property in Omaha, which lease contained in the following clause: "A lien to be given by the said lessees to said lessors, to secure the payment thereof (i. e., rent) on all the furniture that shall be placed in said hotel by said lessees." It then alleged the taking possession by the lessees, and their placing in the hotel a large amount of furniture, and their subsequent abandonment of it, they being utterly insolvent. It is then alleged that defendant took possession of the furniture, sold the same, and converted the proceeds, leaving a large amount of rent unpaid, in fraud of the rights of plaintiff (who claimed as assignee of the lessor), and who was thus prevented from enforcing his lien thereon. The complaint further alleged that defendant had, in its possession, the avails of the sale of said furniture, which justly belonged to plaintiff by virtue of the alleged lien, and wrongfully withheld the same from the plaintiff, to his great damage, etc.; upon demurrer:

Held (Allen, J., Folger and Rapallo, JJ., concurring), that it was immaterial whether plaintiff's right was based upon a legal title to the property, or upon an equity entitling him, as against defendant, to pursue the avails thereof; that the clause in the lease did not create a lien, but was a covenant to do so, and one of which a court of equity would decree a specific performance; that if the property had remained unchanged in defendant's possession, plaintiff could have followed it in equity, and that, as these remedies are lost by the wrongful act of defendant, plaintiff could acquire, claim and have a lien upon the avails in place of the property itself; and that, therefore, the complaint contained a sufficient cause of action: Hale v. O. National Bank, Ib., 626.

3. Plaintiffs transferred to defendants, by receipted bill of sale, certain railroad bonds. They also executed and delivered, with the bill of sale, a guaranty in substance, that the companies issuing the bonds should finish their roads, and be consolidated into one within one year, and in default thereof, they agreed to refund the sum received, with interest, upon return of the bonds purchased. The roads were not finished within the year, and the companies made default in the payment of the interest coupons maturing upon the bonds. Plaintiffs, at defendants' request, and to prevent the enforcement of the guaranty, paid the coupons which were transferred to them. Subsequently, the companies being still embarrassed, proposed to compromise the interest accrued upon their bonds. Plaintiffs agreed to the proposal; but defendants required, as a condition of their assent, and received from plaintiffs a written agreement that such assent should, in no wise, prejudice defendants' rights under the guaranty, but that it should remain in full force some three years after, defendants notified plaintiffs of their intention to enforce the guaranty, but that they would not commence proceeding if plaintiff's would pay the past due coupons. No attention was paid to the notice, and no proceedings were taken to enforce the guaranty. The lands having subsequently risen in the market, defendants tendered the purchase money, and claimed a return of the bonds, and upon defendants refusal, brought action to compel such return:

Held, that plaintiffs retained no option to require a return of the lands upon refunding the money, but that the option was with the defendants to determine whether the transaction should be an absolute sale or a loan; that this option was not deter

mined by any of the subsequent transactions up to the time of the tender, and that, therefore, plaintiffs had no right of action: Sechfield v. Irvin, 51 New York, 51.

4. Defendant contracted to transport a lot of hogs for plaintiffs from Buffalo to Albany. By the contract, in consideration of a reduced rate of freight, plaintiffs assumed the risks of injuries from heat, etc. Forty-three of the hogs died from the effects of heat, the result of the negligence of the defendant's employees in not watering and cooling the hogs by wetting. In an action to recover damages:

Held, that as the common law liability of carriers did not apply to live stock, but in the transportation thereof, they were only liable for negligence. To give effect to the stipulation in the contract, it must be construed as exempting defendant from injuries by heat, the result of negligence, and that therefore defendant was not liable: Crayon v. N. Y. C. R. R. Co., Ib., 6.

5. Where tenants in common of a quantity of grain agree to a division thereof and settle the portion belonging to one, the apportionment operates as a severance of the tenancy in common, and the one whose portion is thus allotted, can, upon a demand and refusal to deliver up the same, maintain an action for the conversion thereof against his former co-tenant having the property in his possession, although such portion was never in fact separated from the residue. The possession of the latter, after such severance, is simply that of bailee: Lobdell v. Stowell, Ib.

6. Plaintiff, a widow whose minor daughter was out at service, sent for her to aid temporarily during sickness. She came home, remained a few days assisting in household duties and then returned to her own employment. While thus at home she became pregnant by defendant. In an action to recover damages for loss of services:

Held, that the daughter was in the actual service of the plaintiff at the time, in such sense that the action could be maintained: Gray v. Durland, 51 N. Y., 424.

7. Where one places a steam boiler upon his premises, and operates the same with care and skill, so that it is no nuisance, in the absence of proof of fault or negligence upon his part, he is not liable for damages to his neighbor occasioned by the explosion of the boiler: Lossee v. Buchanan, Ib.

8. If the explosion was caused by defect in the manufacture of the boiler, he is not liable in the absence of proof that such defect was known to him, or was discoverable upon examination, or by the application of known tests: Ib.

9. The manufacturer and vendor of a steam boiler is only liable to the purchaser for defective materials or for any want of care or skill in its construction; and if after delivery to and acceptance of the purchaser, and while in use by him, an explosion occurs in consequence of such defective construction, to the injury of a third person, the latter has no cause of action because of such injury against the manufacturer: Losee v. Clute, Ib., 494.

CITIES.

1. A city is not restricted as to the order in which needed improvements shall be made. The necesssties of business, and the convenience of travel, may require that one street be macadamized or paved first, and that another be sidewalked first; and the discretion in this respect is properly vested in the Mayor and Council: Parker v. Challiss, 9 Kan., 155.

2. A city, in grading its streets, is bound to keep open a sufficient channel for a natural watercourse so as not to obstruct the waters flowing therein; but it is well settled that a city is not bound to construct any channel, culvert, sewer, or drain, to carry off merely surface water. The construction of sewers and drains to carry off

merely surface water is, purely discretionary with a city. It may construct them or not, at its option, and just as it may think best: Atchison v. Chaliss, 9 Kan., 603.

3. In an action for damages resulting to a lot owner from a change in the grade of a street, proof of the passage of successive ordinances, first establishing the grade and then changing it, with plaintiff's testimony that he graded the street in each case to conform to such ordinances, and that the grading was done, in each case, under the superintendence of the City Engineer:

Held, sufficient, without showing by the record any order of the Common Council to execute the grade, or any published order of the Street Commissioner, or Board of Public Works, directing the owner to do the work: Church v. Milwaukee, 31 Wisconsin, 512.

4. The plaintiff had a right to assume that all necessary steps had been taken by the city authorities to render their acts lawful; and the city can not be heard to allege the contrary as against him: Ib.

5. The charter of Milwaukee confers upon that city "the general powers of municipal corporations at common law," and expressly authorizes it to "lease, purchase and hold real and personal estate, sufficient for the convenience of the inhabitants thereof." It also confers the right to acquire land for streets, etc., by an exercise of the right of eminent domain:

Held, (Lyon, J., dissenting,) that the city might lease land for temporary use as a public street, when the convenience of the inhabitants required: Gillman v. Mil

waukee, Ib., 563.

6. Where the city, for such a purpose, took a lease of land for one year, and neglected at the end of the year to quit and deliver the possession, but continued to hold, use and occupy the land:

Held, that the same rule should apply as in ordinary cases, and the lessor might, at his option, consider the city as a tenant from year to year, upon the terms of the lease: Ib.

7. A court will not take judicial knowledge of the number of wards into which a city is divided: Maberry et als. v. City of Jeffersonville et als., 38 Ind., 198.

CHAMPERTY.

A contract or agreement in and by which one party employs another to prosecute and collect a claim for him and against the Government of the United States, and for which service the employer agrees to pay the other party twenty per centum on the amount of said claim when collected, is champertious in its value, and against public policy, and void: Jones v. Blackridge, 9 Kan., 562.

CHANCERY JURISDICTION.

1. A bill to remove a cloud lies, though the complainant has an immediate right to bring ejectment against the defendant: Thompson v. Mebane, 4 Heiskell, 371.

2. The insufficiency of the proof to sustain a decree is not a ground on which it can be attacked for want of jurisdiction, by a bill filed for that purpose: Martin v. Porter, Ib., 470.

CHANCERY PLEADING.

1. On a bill for an account of the value of land sold, as advancements, and containing no charge of fraud or undue influence, relief can not be had by setting aside, on the ground that the sales were obtained by fraud and undue influence, and for an inadequate price: Merriman v. Lacefield, 4 Heiskell, 209.

2. A bill which asks immediate relief, will sustain a decree, if it makes a proper case, declaring rights in future, and removing a cloud: Ib.

VOL. III.-NO. I.—7.

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