11. An instruction in an action by a shipper against a carrier for damages suffered through the alleged negligence of the carrier in delivering goods, "that the burden of proof is upon the defendant to satisfy the jury by its evidence not only that the loss sustained by the plaintiff" was occasioned by the act of God, but also that "the defendant exercised due care and diligence in the performance of its duty, and was not in any manner negligent in doing or omitting to do any act that might have averted the loss," such instruction being unqualified or unmodified by other instructions, is erroneous. St. Louis & S. F. R. Co. v. Dreyfus, L.R.A.1915D, 547, 141 Pac. 773, 42 Okla. 401. 12. A requested instruction in an action by a mail carrier injured by collision with a street car that the city ordinance gave the mail wagon the right of way, and that plaintiff, as the driver of the wagon, had the right to assume that the motorman, if he discovered, or, by the exercise of ordinary care, could have discovered, the approach of the wagon, would accord the right of way to the wagon, is argumentative and calculated to mislead the jury. Bain v. Fort Smith Light & Traction Co. L.R.A. 1915D, 1021, 172 S. W. 843, Ark. 13. An instruction in an action to recover damages for injury by collision with a street car, that the verdict should be for defendant if the motorman used ordinary care in the management of the car at and near the place of the injury, includes a requirement of constant lookout for persons on the track. Bain v. Fort Smith Light & Traction Co. L.R.A.1915D, 1021, 172 S. W. 843, Ark. TROVER. | of conversion of a millinery stock belonging to the wife of the assignor and kept in the store, where it was left after the assignment with the consent of the assignee, on account of his failure to notify the wife of a sale of the assigned goods, as he had promised to do, where the wife received actual notice prior to the sale from another source, although the purchaser of the stock mistakenly believed that the millinery stock belonged to the stock purchased and advertised it with the other for sale, but subsequently, and before the sale commenced, discovered his error and thereafter made no claim to the millinery stock. Brandenburg v. Northwestern Jobbers' Credit Bureau, L.R.A.1915D, 474, 151 N. W. 134, 128 Minn. 411. TRUSTEE PROCESS. 1. A purchaser of a stock of goods at an assignee's sale is not guilty of conversion of a millinery stock belonging to another kept in the store in which the assigned stock was kept, because of the fact that he mistakenly believed the millinery stock belonged to the stock purchased, and advertised the same for sale, where, upon discovering his error, and before the sale commenced, he instructed his clerk not to touch the millinery stock, and thereafter made no claim of ownership to the same. Brandenburg v. Northwestern Jobbers' Credit Bureau, j L.R.A.1915D, 474, 151 N. W. 134, 128 Minn. 411. 2. An assignee of a stock of merchandise for the benefit of creditors is not guilty Covenants between, see Covenants and | WARRANTY. Conditions. Sale of homestead, see Homestead. A delay of two and one-half years after taking possession of real estate which was bought upon the faith of a representation that the income had been a certain sum for a year before the transfer, before seeking a rescission, is unreasonable, where the exercise of due diligence would have disclosed the fraud during the first season after the purchaser entered into possession of the property. Whitney v. Bissell, L.R.A. 1915D, 257, 146 Pac. 141, Or. VERIFICATION. Of specification of charges in disbarment proceedings, see Attorneys, 5, 6. VESTED RIGHTS. Damages for breach of, see Damages, 2. WASTE. Who may maintain action to prevent waste of public money, see Parties, 4, 7. WATERS. As to canals, see Canals. Injury to property by flow of water into cellar due to blasting in street, see Blasting. Pollution. of water from the stream to wash for 1. The use by an upper riparian owner the market coal taken from his mine, which is then turned back into the stream and pollutes it to such an extent as to render it unfit to water stock on a lower riparian Of beneficiary in insurance, see Insur- farm, gives the owner of the latter a right ance, 5, 25, 26. WAIVER. Of error in trial court, see Appeal and Of rights by accused, see Criminal Law, By insurer, see Insurance, 21. Of cash payment for goods, see Sale, 1. WAREHOUSEMEN. Evidence of custom on question of neg- 1. That a tide which injured property in a warehouse was the highest for a period of nearly sixty years does not alone relieve the warehouseman from liability for the injury, if the floor of the warehouse was below the height reached by the tides several times during that period, and lower than was regarded as safe by experts in the locality. Hecht v. Boston Wharf Co. L.R.A. 1915D, 725, 107 N. E. 990, 220 Mass. 397. (Annotated) 2. Mere knowledge of one depositing goods for storage in a warehouse of the location and condition of the place where the goods are kept does not place upon him an assumption of risk of injury from a high tide, or relieve the warehouseman of liability for negligence in leaving the property in danger therof. Hecht v. Boston Wharf Co. L.R.A1915D, 725, 107 N. E. 990, 220 Mass. 397. of action. Packwood v. Mendota Coal & Refusal of irrigation company to de- Damages for injury to crop by failure to furnish water, see Damages, 6. Who may maintain action for negligent failure to maintain irrigation ditch, see Parties, 2. 2. Failure of an irrigation ditch company to clean the ditch during the fall and winter when the water is not needed, and their deliberate performance of the necessary work in the spring, so that stockholders are deprived of water when needed for their crops, is negligence Berg v. Yakima 619, Valley Canal Co. L.R.A.1915D, 292, 145 Pac. Wash. -. 3. A mutual irrigation ditch company is liable to holders of its stock and their tenants for negligent failure to maintain delivered to them, to their injury. Berg the ditch in repair, so that water cannot be 292, 145 Pac. 619, v. Yakima Valley Canal Co. L.R.A.1915D, Wash. Public water supply. Who may maintain action to enforce rates provided in contract with municipality, see Parties, 3. Exemption of municipal waterworks from taxation, see Taxes, 2. 4. An irrigation company is a "common carrier" of water to a limited degree, and its rates and charges are subject to regulation and control. McCook Irrigation & W. P. Co. v. Burtless, L.R.A.1915D, 1205, 152 N. W. 334, P. U. R. 1915C, 587, 6. Contracts between an irrigation company and water users under its ditch, providing for the use of water and for the maintenance of the ditch, are entered into with the law as to the right of the state | to regulate rates forming a part of the contract, and such rates are subject to control. McCook Irrigation & W. P. Co. v. Burtless, L.R.A.1915D, 1205, 152 N. W. 334, P. U. R. 1915C, 587, Neb.-. 2. A will from which testator tore his signature, and by so doing mutilated a portion of a codicil, is properly admitted to probate together with the codicil if it was originally duly executed and he restored the portion of the paper torn off, rewrote his signature and the mutilated portion of the codicil, and left it among his papers at the time of his death. Re Brock, L.R.A. 1915D, 1140, 93 Atl. 487, 247 Pa. 365. Holographic wills. 3. Signature by initials is sufficient to validate a holographic will under a statute providing that no will shall be valid unless signed in such manner as to make it manifest that the name is intended as a signature. Pilcher v. Pilcher, L.R.A.1915D, 902, - Va. 84 S. E. 667, (Annotated) Nature of estate or interest created. 7. A contract establishing meter rates for water for a certain amount of consumption or less per month, a less rate for a consumption between the amount specified and a larger maximum quantity, and so on until a rate is fixed for all consumption over the final maximum specified, with a provision that the minimum amount of bill under one rate shall not be less than the maximum under the preceding rate, does not require payment of the rate fixed for all consumption between the divisions speci- | fied, but fixes classes of consumers to be 4. A life estate only which the life charged a single rate according to the total tenant cannot take out of the possession of amount of their consumption. Walton v. the trustee is created by a devise to be held Proutt, L.R.A.1915D, 917, 174 S. W. 1152, in trust for the use and benefit of a person Ark. specified "during her life, with power to dispose of the same by her last will and testament." Louisville Trust Co. v. Snively, L.R.A.1915D, 153, 172 S. W. 911, 162 Ky. 461. 8. A water company which has contracted with a municipal corporation to furnish water to its inhabitants at a flat maximum rate for dwellings cannot make a special contract for meter rates with a 5. Since in a will the word "lend" is particular householder, and even though it equivalent to "give" or devise," a loan in undertakes to do so, it may cut the supply such an instrument of land to one for life, off from his residence upon his refusal to with a devise of it in fee to his heirs at pay the uniform flat rate. Birmingham his death, passes the fee to him. Roberson Waterworks Co. v. Brown, L.R.A.1915D, | v. Moore, L.R.A.1915D, 496, 84 S. E. 351, 1086, 67 So. 613, Ala. -. N. C. WITNESSES. (Annotated) Error in refusing to admit evidence directed at credibility of witness who has not been introduced, see Appeal and Error, 20. Contempt by, see Contempt, 3, 4. Contempt by assault on, see Contempt, 1, 2, 7. Privileged communications to, see Evidence, 27, 28. |