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sidered as held in trust by such
parent for such children. Schmitt
v. Schnell.

657.
PARTIES-

Where several parties plaintiff
file a petition asking for foreclosure
of a mortgage made by defendant,
to secure payment of notes given by
him to them severally and also
asking for a reformation of the
mortgage on the ground that the
land intended to be mortgaged was
not correctly described therein:
Held, that as the petition set up a
claim for the reformation of the
mortgage in which the plaintiffs
were directly interested, therefore,
they were entitled to join as plain-
tiffs and there was no misjoinder
of parties

plaintiff. Collins V.
Mansfield.

445.
When, on the face of a petition
in error there appears to be a mis-
joinder of parties plaintiff, which
could only be taken advantage of
by special demurrer, and such de-
murrer is not filed the defendant
waives the objection under the pro-
visions of sec. 5064, Rev. Stat., but
he may properly raise the question
by answer.

Ib.
PARTNERSHIPS-

Where a partnership sues in its
firm name, it not being shown that
it was entitled to thus sue and
prosecute its action, and it does
not affirmatively appear in the
record that it was a partnership,
formed for the purpose of carrying
on a trade or business, or holding
property in this state, then such
action does not come within the
purview of sec. 5011, authorizing
such partnership to sue by the usual
or ordinary name, which it has as-
sumed, or by which it is known,
and therefore such partnership has
no legal capacity to sue, and unless
the pleading is demurred to on this
specific ground, the objection is
waived. Beers & Co. v. Gurney.

411.
PARTY WALLS-

W., intending to erect a building
on his ,lot, entered into a parol
agreement with H, the owner of
the adjoining lot, for construction of
a party wall. The wall was to be
located and constructed, one-half on
each side of the division line, to be
completed and cost of construction
borne by W, and H, was not to be
liable for any portion of such cost
until he used it in the construction
of an adjoining building on his lot,
when he was to become liable for

the payment of one-half such cost.
The wall was completed by W, in
1874, in accordance with the stipula-
tions of said agreement, and in 1894,
H made use of the wall in the con-
struction of a building on his ad-
joining lot: Held, that there was
such performance of the agreement
as relieved it from the operation of
the statute of frauds. Hall v. Geyer.

436.
The wall was and is real estate;
so the contract had reference to and
was for and concerning an interest
in real estate, and its covenants
were of such character and import
as to run with the land.

Ib.
Upon the completion of the wall,
the stipulation for H, to become lia-
ble for one-half the cost of it, when
used for the purpose of a building
on the adjoining lot, unless severe
from its context and made inde.
pendent, became an appurtenance
of the said real estate and passed
to the assignee thereof.

Ib.
PAYMENT-

The burden of proof regarding
a payment made on a note barred
by the statute of limitations, is upon
the party relying on such payment.
Keel, Exr, v. Rudisell.

464.
Endorsement of credit on
note is not prima facie evidence of
payment.

Ib.
Where one of the joint makers
of a promissory note makes a partial
payment, such payment will not
prevent the running of the statute
of limitations as to the other
makers, but applies only to the

person making the payment. Ib.
PLEADING-

In an action to recover compen-
sation for lands entered upon by a
railway, defendant filed an answer
claiming that the action did not
accrue within six years next before
it was begun; to this defense plain-
tiff demurred: Held, that the de
murrer to the answer searches the
record and the court is warranted
to look to the petition and see when
the cause of action did arise, and
if it finds that it arose within six
years prior to the commencement of
the suit, it will not be error in
sustaining the demurrer to this de
fense. W. & L. E. Ry. Co. v. Fries
et al.

297.
In an action against a village or
city to recover for the value of ma.
terials and labor furnished its
board of gas trustees, the petition
must allege that such board had
authority trom the village counch

a

93.

PLEADING -Con.-

or otherwise to enter into such
contracts, and also that when
the contracts were made the neces.
sary money required for the pày.
ment of such materials was certi.
fied by the clerk to be in the village
treasury to the credit of the fund
from which it was to be drawn and
was not appropriated for no other
purpose. Kerr v. Village of Belle.
fontaine.

The power which rests in the
court, given by the statute granting
it the power to extend the time for
filing any pleading, or to give leave
at any time to file a pleading, is a
power given to the court which may
be exercised at any time and in
any manner it pleases, unless ob-
jection be made at the time or sub-
sequently and exception taken to
that order or rule. Parker
Haight.

609.
Necessary averments in a pe-
tition in an action by a servant
against his master for injuries re.
ceivad while operating defective
machinery. Barbour v. Miles. 682.

In an action to vacate and set
aside a judgment or order of the
probate court, discharging the sure.
ties on an executor's bond, which
cause of action is based on the
ground that the judgment or order
of discharge was procured by fraud
successfully practiced on the court,
and the petition definitely states all
the facts constituting the fraud,
such petition stains a good cause
of action and is good as against a
general demurrer. Howenstine v.
Sweet.

499.
A departure in pleading is de-
fined to be the statement of matter
in replication or subsequent
pleading, as a caus? of action or de-
fense, which is not pursuant to the
previous pleading of the same party,
and which does not support or for
tify it. State ex rel. v. W. H., M. &
P. Road Co.

453.
Where the reply in a quo war-
ranto proceeding sets up the partic
ular facts which, it is claimed, show
that defendant company is now ex-
ercising franchises and privileges
which it may once have had, but
which it does not now possess, such
reply does not constitute de-
parture from the petition, but
supports and fortifies it, and there-
fore, it is not demurrable.

Ib.

.
PRACTICE-

Where there has been
finding of facts separately from

conclusions of law, a motion for a
new trial is not necessary in order
to entitle a reviewing court to de
termine whether the conclusions of
law on the facts found are correct.
Miller v. Douglas.

96.
Where court of common
pleas reverses on error, a judgment
rendered by a justice, it is the duty
of the court, under sec. 6733 Rev.
Stat. to retain the case for trial and
final judgment as in cases of appeal.
Bradley v. Wacker.

565.
All that is necessary where
there has been a finding of facts
separately from the conclusion of
law, under sec. 5205, to ntitle the
reviewing court to pass upon the
questions of law, is an exception
to the judgment of the court. Mither
v. Douglas.

715.
QUO WARRANTO-

If an action cannot be brought
against a municipal corporation to
oust it from the exercise of a fran.
chise, which it is exercising under
an alleged unconstitutional act,
then such action cannot be brought
against the officers appointed or
elected to perform the duties im-
posed by such act. State ex rel.
Strimple v. McBride et al. 522.

An action to oust the members
of the sinking fund commissioners
of Cleveland from office which action
is based on the ground of the al-
leged unconstitutionality of the act
of 1862, creating such office, cannot
be maintained where the powers and
franchises of such office have been
exercised for over a period of
twenty years since the right of
action accrued.

Ib.
An action to oust the members
of the park board because of the un.
constitutionality of the statute cre.
ating the appointing board is a
collateral attack upon the validity
of such statute, and cannot be made
in a quo warranto proceeding.

Ib.
Jurisdiction in quo warranto
exists to oust a municipal corpora-
tion assuming to exercise a franchise
not conferred on it by law, provid.
ing such proceeding is brought
against the corporation within the
time limited.

Ib.
When an information in the
nature of a quo warranto is filed
against a corporation by its cor-
porate name, calling upon it to show
by what warrant it claims to be a
corporation, to exercise corpo
rate powers, and defendant pleads
an act of the legislature granting to
it the franchises named in the in.

a

a

a

formation, it is competent for the
relator by way of replication to aver
cause of forfeiture, and to pray for
a judgment of dissolution. State
ex rel. v. W. H. M. & P. Road Co.

453.
RAILROADS-

In an action against a railroad
company for damages for stock
killed, because of alleged negligence
in failing to construct necessary and
proper cattle guards: Held, that
such omission, was not sufficient
negligence as to warrant a verdict
against the company, when the evi.
dence showed that it was necessary
for the proper use of the station
yards as maintained on each side
of the station proper, to omit such
guards. Pierce v. Andrews. 105.

Where a city by ordinance con.
tracts with a railroad, giving such
company the privilege of taking and
using such portions of certain
streets as said company shall deem
expedient for the purpose of build.
ing its railroad: Held, that, under
the contract, the company did not
take the exclusive use of such
streets, but could use them only
so far as it was necessary for the
railroad to use them, and not so far
as it should deem necessary. L. S.
& M. S. Ry. Co. v. Elyria. 312.

It was the duty of the railroad
to restore such streets to their
former state of usefulness, and fail-
ing to do so the city cannot be in.
terfered with in thus restoring them.

Ib.
A railroad company permitting
crude oil to accumulate and remain
for an unreasonable time upon its
side tracks, where brakemen are ac-
customed to go in coupling and un-
coupling cars, and whereby such
work is made dangerous, is guilty
of negligence, and answerable
therefor in damages to a brakeman
who, while in the performance of
his duty, slips upon such oil and is
injured. C. H. & D. R. R. Co. v.
Criss.

632.
Such tracks being used to
transfer cars from another railroad
to defendant's railroad in pursu-
ance of a traffic arrangement between
the companies owning such roads,
the owner of such transfer tracks
is liable for such negligence re-
sulting in an injury to a brakeman
not in its employ, but in the employ
of such other company, if at the
time he receives such injury, he,
in the discharging of his duty, is
assisting in such transfer of cars.

The owner of a grist mill and
appurtenances. situate upon village
lots abutting upon a street, may re.
cover from a railroad company
which occupies a part of such street
with its tracks, damages resulting
to such property from a diminution
of the value thereof caused by
sparks, cinders, smoke or noise
produced by the operation of loco-
motives while upon such track, and
within the limits of the street, if
such place is near to his property;
though it may not abut upon that
part of the street so occupied by
such track. W. & L. E. R. R. Co. v.
McLaughlin.

647.
The object of having a signboard
or caution post at or near the
crossing of a railway and highway
is to notify travelers of the exist-
ence of the crossing, and if the jury
find that the company was negligent
in not having such board at the
crossing where the accident occurred,
such omission would not render the
company liable to a person familiar
with the crossing and who knew of
the existence of the railway at the
time of the accident. C. C. & I. Ry.
Co. v. Reiss.

450.
A railroad company is not, in
the absence of a statute requiring
it, bound to maintain gates or keep
a watchman at a crossing, yet there
are cases where the obligation is
imposed upon them to adopt these
or other safe modes, to protect
travelers, and if in such cases they
fail to so provide, it would be neg.
ligence on their part, and they might
be liable for injuries caused by such
failure.

Ib.
RAPE

In order to convict a person
charged with an assault with intent
to rape, it must appear from the
evidence that an assault was made
upon the prosecutrix, and that what
was done was done against her will.
Martin v. State.

564.
REPLEVIN-

Where goods are sought to be
replevined on the ground that they
have been fraudulently purchased,
and the party replevying them
claims to be the general owner, au
allegation thaty "the defendant
wrongfully detains from plaintiffs
the following goods and chattels of
the plaintiffs," will be held to be a
sufficient allegation of ownership
on the part of plaintiffs. Wilmot
V. Lyon & Co.

394.
A person who obtains goods by
talse pretense does not lawtally

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REPLEVIN-Con.

come into their possession, and is
not entitled to demand for their
return before bringing an action in
replevin for such goods.

Ib.
Where

person fraudulently
purchased a quantity of goods and
executed a note for the same, and
afterwards the seller rescinds the
sale and replevins the goods: Held,
that it is not necessary for the seller
to first ; turn the note to the pur-
chaser briore bringing the suit in
replevin. It is sufficient if the seller
has the note in his possession at the
commencement of the suit, and
brings the same into court, subject
to whatever the court might do with
it.

Ib.

Demand is only required before
replevin proceedings are commenced
when necessary to terminate de.
fendant's right of possession or
confer the right of possession upon
plaintiff.

Ib.
Where the purchaser of goods
has made a representation as to a
material matter, relied and acted
upon by the other party, which the
latter was authorized to rely upon,
and which the person to whom
such representation is made is
authorized to rescind the contract
and take the property by replevin
proceedings, as he might do in a
case of actual fraud. King V.
Hopkins.

362.
RECEIVERS-

In an action by plaintiff upon
certain notes executed by defendant
corporation, for which plaintiff asks
judgment and for the appointment
of a receiver. Such action is on
the note for which he asks judgment
and is not a case for the appointment
of a receiver before judgment, and
therefore, it is error for the court
to appoint such receiver in such
action. Callahan et al. v. Con-
sumers Ice & Refrigerating Co.

349.
To appoint a receiver in an
action at law for money, would be
in effect granting an attachment,
which cannot be done.

Ib.
REFORMATION-

Mistakes of whatsoever kind or
nature will, by courts possessing and
exercising general equity powers and
jurisdiction, be corrected and re.
lieved against, by a decree ordering
the reformation of an instrument or
deed into which the error or mistake
has crept. Cook v. Prosser. 619.

SALES-

In an action for the purchase
price of goods it is competent for
the vendee to show that the quality
was such that they could not be
sold in vendee's market for goods
of the grade for which they were
bought, but that they had to be
sold as a lower grade. Tillyer et
al. v. Glass Co.

209.
Where the vendor agrees to sell
certain glass, the quality to be
"second and third," such language
amounts to a warranty, and not
merely a description of the kind
and character of the glass sold.

Ib.
To constitute a warranty, no
particular form of words is neces.
sary in the sale of personal property,
and while a mere expression of
opinion is not sufficient to consti-
tute a warranty, any clear, positive
affirmation by the vendor during
the negotiation will be construed as
an express warranty.

Ib.
An affirmation at the time of
the sale is sufficient, provided the
affirmant really intended to warrant
-not simply to express an opinion.
An honest expression of opinion
does not amount to a warranty.
Affirmation by a vendor upon which
he intends the vendee to rely, and
upon which the vendee does rely,
are warranties.

Where goods have been pur.
chased by fraud from a merchant,
and the latter undertakes to rescind
the sale and replevin the property,
the title of such merchant in such
goods will be that of a general
owner and not that of a special
owner. Wilmot v. Lyon & Co.

394.
Where goods have been obtained
by fraud, the right of possession
never passes to the purchaser at all
If the sale is elected to be rescinded,
it is because there was no right on
the part of the purchaser in the out.
set to the possession of such goods.

Ib.
When a person buys goods, be-
ing insolvent, knowing that he is
insolvent, and not intending to pay
for those goods, such sale is fraud.
ulent and void.

Ib.
Upon a sale of a stock of mer.
chandise, by S. to E. on credit, pos-
session thereof was delivered to E.
with authority to sell therefrom at
retail, but it was agreed that he
should not allow the stock to be
come reduced, but should keep it
intact by supplying goods in the

Ib.

a

without having a certificate to teach
the branches, does not render invalid
a contract for employment made
with a teacher before he obtains
the requisite certificate, provided he
obtains it before entering upon the
duties of his employment. Ib.

A taxpayer may commence
suit to restrain a board of education
from doin' in illegal act, and secs.
1277-8, and 1777-8, Rev. Stat., do not
apply to such action.

Ib.
The control and management
of school interests is com.nitted to
the judgment and discretion of the
board of education, but when such
board proposes the expenditure of
public money to take down a sat.
isfactory school building and rebuild
it on another site in a distant part:
of the district and such action of
the board being uncalled for and
no excuse given for it, it is an
abuse of their authority and discre.
tion, which a court of equity will
enjoin. Watkins et al. v. Hall et
al.

434.

stead of those retailed, and should
not sell or transfer the stock of
goods until the same had been paia
for on payment secured to the sat.
isfaction of S, and afterward, and
when the value of the stock was
pot greater than the amount of the
indebtedness therefor, it was traded
by E. for land, the title of which
was taken to E, with the consent of
S. but upon the promise of E. that
upon the consummation of such
trade he would convey said land
to S, which he subsequently refused
to do: Held, that E held the title
to the land in trust for S, and that
the conveyance thereof agreed upon
might be required by a court of

equity. Schaff v. Ensley. 707.
SAVING SOCIETIES-

The deposits in such societies
are the property of the depositors;
the societies are merely incorporated
agencies for the depositors as prin.
cipals to receive, loan and invest
the savings of the latter. Collett,
Treas., v. Savings Society. 146.

The depositors are required to
return and pay taxes upon the value
of their interest in the society, and
the society to return and pay taxes
upon the remainder of the property
not the reciprocal of such interests.
The surplus, undivided profits,
real estate and furniture do not add
to the taxable value of the depos-
itor's interests, and a complete tax.
ation of all taxable property is at.
fected by requiring the depositors
to pay upon the value of their
interests and the soniety to pay upon
the surplus, undiviiled profits, real
estate and furniture.

Ib.
SCHOOLS,

The control and management
of schools in this state is given to
boards of education by statute, and
they cannot be interfered with by
the court unless there is a gross
abuse of the discretionary powers
given. Youmans v. Board of Edu.
cation.

269.
Where the minute book, con-
taining a record of the proceedings
of a board of education shows that
all the members were present, and
that on motion they proceeded to
elect a teacher, showing the yea and
nay vote but does not state that the
roll was called, such election will
be considered to be in substantial
compliance with sec. 3982, Rev.
Stat.

Ib.
Under the section of the stat.
ute requiring that boards of edu.
catic i shall not employ teachers

SENTENCE-

A sentence in a criminal case
must be so complete as that the of.
fender, while suffering the penalty
of the law, may still have preserved
to him any contemplated rights or
conditions. In re Moore. 575.

It must be so complete as to
need no construction of a court to
ascertain its import.

Ib.
It must be complete as that he
may not have to look between the
lines for its meaning; and it cannot
be supplemented by a non-judicial
or ministerial officer.

Ib.

SHERIFF-

The sheriff is the executive of.
ficer of the court, and when the
court pronounces sentence upon a
prisoner, the sheriff is his rightful
custodian, and when he obtains cus-
tody of such prisoner, in whatever
manner, his authority to restrain
him evidenced by the sentence of
the court is complete. In re Moore.

575.
SPECIFIC PERFORMANCE-

Specific performance is not an
absolute remedy, but is, in all cases
discretionary with the court, and
ought to be refused-if the contract
lacks the essential element of mu.
tuality; or, if the parties to it, were
not standing on an equality and deal.
ing at arm's length; or, if the con-
tract was not fair and free; or, if
performance would be harsh, op-

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