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7. FIXTURES - BUILDINGS on ANOTHER'S LAND-MORTGAGES.—If buildings are constructed on mortgaged land by one having no estate therein, and hence no interest in enhancing its value, by the permission or li cense of the mortgagor in possession, between whom there is an agree ment that the buildings shall be the personal property of the one constructing them, the absence of a concurrent agreement on the part of the mortgagee, to the same effect, does not, of itself, make the buildings a part of the mortgage security. Merchants' Nat. Bank v. Stanton, 491.

& FIXTURES ANNEXED SUBSEQUENT TO MORTGAGE — COMMON-LAW RULE INAPPLICABLE.-The old rule that all fixtures annexed subsequently to the execution of a mortgage, whether by the mortgagor or by his tenant or licensee under a lease or license subsequent to the mortgage, became as to the mortgagee a part of the realty, is repudiated as inapplicable in states where a mortgage is a mere security, conveying neither title nor right to possession. The old rule was founded upon the common-law doctrine that a mortgage was a conveyance under which the mortgagee became the legal owner, and was entitled to immediate possession, the mortgagor in possession being considered strictly his tenant at will. Merchants' Nat. Bank v. Stanton, 491. 9. JUDGMENT-MERGER.-Judgment foreclosing a mortgage without per sonal service on the mortgagor does not merge the cause of action if the full amount of the mortgage debt is not realized from the foreclosure sale. The mortgagee may maintain a personal action against the mortgagor to recover the amount yet remaining due. Howard v. McNaught, 837.

10. FORECLOSURE-RECOVERY OF BALANCE DUE-EVIDENCE-In an action to recover a balance due on the mortgage debt after foreclosure and sale of the mortgaged premises, evidence as to the value of the land is immaterial and inadmissible in the absence of an allegation of fraud by reason of which the mortgaged land has been sold for less than its value. Howard v. McNaught, 837. 11. MISTAKE IN FORECLOSING MORTGAGE-RESALE.-If, by mistake in the computation of interest, mortgaged premises are sold at foreclosure sale for more than what is due, and the property is worth less than what is due, the mortgagee, having bid in the premises with the object of extinguishing the indebtedness, may be relieved in equity, and a resale ordered, without a tender on his part of the value of the use of the premises after the expiration of the time for redemption, that value being much less than the mistake made in the interest. Lane v. Holmes, 508.

12. JUDGMENT OF FORECLOSURE IS VOID, WHEN.-Under the constitutional provision requiring an action for the foreclosure of a mortgage to be commenced in the county in which the mortgaged premises, or some part thereof, are situated, a judgment in a suit commenced in another county is without jurisdiction and void. Rogers v. Cady, 101. 13. RES JUDICATA.- A DECREE IN A SUIT FORECLOSING A MORTGAGE, whether right or wrong, is binding on the parties to the suit and those purchasing from them, or either of them, during its pendency, and it cannot be attacked collaterally if the court had jurisdiction of the parties and of the subject matter. Norris v. Ile, 233.

See AGENCY, 2, 3; CHATTEL MORTGAGES; JUDGMENTS, 14; LIMITATIONS OF ACTIONS, 2; MECHANIC'S LIEN, 6, 7; PARTNERSHIP, 7; SUBROGATION, 1.

MUNICIPAL CORPORATIONS.

1. PLEADING-CAUSE OF ACTION AGAINST CITY.-A complaint in an action against a city to recover the balance of the purchase price of certain personal property based upon a note, and alleging a contract of purchase between the parties, that the note was given for part of the purchase price agreed upon, and issued under and by authority of the council of such city, that certain payments have been made by the issuance of warrants upon the treasury of such city, that there is now due and owing a specified sum, a claim for which has been duly presented to said city council and by it repudiated and payment refused, and that plaintiff is now the owner and holder of such note and claim, states a cause of action against the city. La France Fire Engine Co. ▼. Mt. Vernon, 827.

2 INJUNCTION AGAINST AWARD OF CONTRACT.-Agents of municipal corporations must maintain themselves within the law in the matter of awarding contracts for city work; and if through fraud, or manifest error, not within the discretion confided to them, they are proceeding to make a contract which illegally casts upon taxpayers a substantially larger burden of expense than is necessary, they may be enjoined to the extent of restricting their action within proper bounds. Times Publishing Co. v. City of Everett, 865.

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& INJUNCTION AGAINST AWARD OF CONTRACT-JUDICIAL DISCRETION OF CONTRACTING AGENT.-Under a statute requiring a contract for city work to be let to the lowest and best bidder some judicial discre. tion is vested in the city council in determining who is such bidder. The responsibility of the bidder, his experience, and his facilities for carrying out the contract may be looked into, and an honest deter mination that his bid, though the lowest, is not the best, must control; but, in every such case, to protect itself from interference by injunc tion at the suit of a taxpayer, such council must judicially find the facts, which in its judgment render the apparently lowest bid, not the best nor lowest in fact. Times Publishing Co. v. City of Everett, 865. 4 INJUNCTION AGAINST AWARD OF CONTRACT-INTEREST SUFFICIENT TO MAINTAIN. The direct interest in the controversy possessed by a taxpayer, as one liable to be taxed, is sufficient to enable him to maintain, as plaintiff, an action to enjoin the letting of a contract for the doing of city work, no matter what his ulterior motives may be in prosecuting the suit. Times Publishing Co. v. City of Everett, 865. CONTROL OF STREETS-RIGHT TO CREATE NUISANCE.-A city cannot create a nuisance in its streets, or devote them or any part of them to a purpose inconsistent with the rights of the public or abutting property owners. Lockwood v. Wabash R. R. Co., 547.

6. CONTROL OF STREETS-RIGHT TO CREATE NUISANCE.-A city has no right to authorize the use of its streets for railroad purposes when such use necessarily destroys them as public ways, and deprives abutting owners of access to their property. Lockwood v. Wabash R. R. Co., 547. 7. CONTROL OF STREETS.-Under a city charter vesting sole power in the mayor and assembly" to grant franchises to street railroads, such power to be exercised only by ordinance, a permit from the mayor alone to construct and operate a railroad in the street is void, and confers no authority on a railroad company to occupy the street with tracks. Lockwood v. Wabash R. R. Co., 547.

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& PUBLIC USE IN STREETS-EJECTMENT.-Public streets are in the possession of municipal authorities as trustees of the public who hold them for the use of the public as effectually as they do, or may, the public buildings of the municipality. Ejectment will not, therefore, lie at the suit of an abutting owner, to recover the possession of any part of the street from a railway company using it under a municipal franchise. Montgomery v. Santa Ana etc. Ry. Co., 89.

9. JURY TRIAL-RIGHT TO FOR Municipal OffenSES.-It is no objection to municipal ordinance creating an offense against the city government, and prescribing penalties therefor, that the trial thereunder is without a jury. Hunt v. Jacksonville, 214.

10. ORDINANce Creating OFFENSE OUT OF ACT MADE PENAL BY STATE LAW.-A municipality may, by ordinance, create an offense against municipal law out of the same act already constituting an offense against state law. The two are then distinct offenses, punishable by both the municipality and by the state, and a conviction or acquittal by the one is no bar to prosecution and punishment by the other. Hun! v. Jacksonvulle, 214.

See ATTACHMENTS, 3-5; CorpoRATIONS, 10; Mandamus,

MURDER.

See HOMICIDE.

NAMES.

See TRADEMARKS.

NAVIGATION.

See DEDICATION.

NEGLIGENCE.

1. SUFFICIENCY OF COMPLAINT.-If any negligent act of one party is charged which, in the conditions existing, results in loss to another, the latter is entitled to recover, although the declaration may charge other acts as negligent which are either not proven or which may not in law be negligent. Smith v. Michigan Cent. R. R. Co., 440.

2 CONTRIBUTORY OF ONE PERSON, WHEN IMPUTED TO ANOTHER.-A person who voluntarily takes passage in a vehicle, driven and managed by another, assumes the risk of the care and skill of the latter, and if an injury results to which the negligence of the latter contributed, cannot recover therefor. Whittaker v. Helena, 621.

3. WHEN IMPUTED.-The negligence of the driver of a private conveyance in driving over an obstruction in the street is imputable to a person of the age of discretion who voluntarily rides with him, and prevents his recovery for the injuries received. Mullen v. City of Owosso, 436. 4. CONTRIBUTORY-WHEN QUESTION FOR JURY.-Whether one killed by a live electric wire which had become grounded during a storm, and which he undertook to move out of the way, was guilty of contributory negligence in so doing, is for the jury to decide, from a consideration of the object he had in view, his knowledge or ignorance of all the elements of danger connected therewith, and previous warnings to him of the danger of handling grounded wires. Texarkana Gas etc. Co. v. Orr, 30.

6. LIVE ELECTRIO WIRES IN STREET-DAMAGES.-Evidence that an eleotric light company knew at night that its wires were grounded, that it nevertheless kept its power up, and that the next day a pedestrian was killed by coming in contact with a live wire in the street, is sufficient to establish gross negligence, and justify a verdict and judgment for punitive as well as actual damages. Texarkana Gas etc. Co. v. Orr, 30. See APPEAL, 3; BAILMENT, 3, 4; CARRIERS, 2; Legislature; Master and Servant; States, 1; Suretyship, 7; Wharves, 2, 3.

NEGOTIABLE INSTRUMENTS.

1. CORPORATION-Note GIVEN WITHOUT CONSIDERATION.—A note executed by a corporation, the real purpose of which is to secure a debt due to the payee from a business partnership, but which purports to be given in consideration of a purchase of a lot of notes then known to be substantially worthless, and to represent the accumulated losses of such firm, and when the vote authorizing the giving of the note was cast by directors of the corporation, all of whom were personally interested in the giving of such note, because it would relieve them from liability by imposing such liability on the corporation, and the securities for the purchase of which the note was given were never turned over to the corporation, is a mere sham, and, if the corporation is subsequently declared an insolvent debtor, its assets should not be applied to the payment of a judgment based upon such note. Atlas Nat. Bank v. More, 274.

2 INCREASE OF INTEREST.-A provision in a note for an increased rate of interest, if payments are not made when due, is not a penalty, but a contract. By accepting the original rate the payee waives his right to collect a greater rate for the time past, but not to demand the increased rate for the future. As to future interest the note is an executory written contract alterable only by a contract in writing or by an executed oral agreement, as provided by statute. Thompson v. Gorner, 81. 3. BILLS OF EXCHANGE-FICTITIOUS PARTIES.-The fact that a check or bill of exchange is made payable to a person who does not own it, but is merely an officer or agent of the corporation or person entitled to its proceeds, does not constitute it a bill or check payable to a fictitious person, nor render it any the less forgery to indorse the name of the person designated therein as payee without anthority so to do. First Nat. Bank v. Northwestern Nat. Bank, 247. BANKING-FORGED CHECKS.-THE DRAWEE OF A BILL OF EXCHANGE OR OF A BANK CHECK is conclusively presumed to know the signature of the drawer, and if he accepts or pays in the usual course of business bill or check whereon the signature of the drawer is a forgery, he and the person to whom payment is made are both estopped to afterward deny the genuineness of such signature. First Nat. Bank v. Northwestern Nat. Bank, 247.

PLEADING FRAUD IN INCEPTION OF.-An answer in an action by the indorsee of a negotiable instrument which avers fraud in its inception, but does not allege that the plaintiff participated in or had notice of the fraud at the time of the indorsement to him, is sufficient. The plaintiff, if such fraud is proved, must assume the burden of establishing that he was the indorsee for value before maturity and

without notice of the fraud which is sought to be asserted as a defense. Thamling v. Duffey, 658.

See BONDS; COMPOUNDING FELONY; DURESS, 1; EXECUTORS AND ADMINISTRATORS, 2; HUSBAND AND WIFE, d.

NEW PROMISE.

See LIMITATIONS OF ACTIONS, 7.

NEW TRIAL.

1. CRIMINAL CASES-DISQUALIFICATION OF JURORS.-A person accused of crime is not entitled to a new trial on the ground that a juror had formed and expressed an opinion before he was selected, if he was accepted as such juror without examination by the accused. Smith ▼. State, 20.

2 AFFIDAVITS OF JURORS are not admissible to show that the jury received evidence after they retired to consider their verdict, under a statute providing that a juror cannot be examined to establish any ground for a new trial, except that the verdict was made by lot. Smith v. State, 20. 3. JURY TRIAL.-AN INSTRUCTION, THOUGH ERRONEOUS, will not require the granting of a new trial, if it appears from the evidence that no other verdict could have been properly returned by the jury under instructions entirely correct. Chicago etċ. R. R. Co. v. Kneirim, 259.

NIGHT-TIME.

See DEFINITIONS.

NOTARIES PUBLIC.

See SURETYSHIP, 1–3.

NOTICE

See ADVERSE POSSESSION, 3; ASSIGNMENT, 2; Mortgages, 2.

NUISANCE.

1. NUISANCE-POLLUTION OF WELL-SCIENTER.-To recover damages for the pollution of a well it is enough that it was the natural and probable consequence of the defendant's acts. It is not necessary that the fact of contamination was known to the defendant. Beatrice Gas Co. v. Thomas, 711.

2 NUISANCE-POLLUTION OF WELL-EVIDENCE.-In an action to recover damages for the pollution of a well, evidence that the injury can be avoided by the digging of a new well is admissible in mitigation of damages, but is no defense to the action. Beatrice Gas Co. v. Thomas, 711.

3. NUISANCE-POLLUTION OF Well-Evidence.-After the plaintiff, in an action to recover damages for the pollution of his well, has introduced evidence that other wells in the neighborhood were likewise affected, defendant should be allowed to show that other wells a great distance away were similarly polluted, as this would tend to show that the cause in both cases was a general one, affecting the whole region, and not the act of defendant. Such evidence, however, should be confined within reasonable limits to avoid the danger of introducing collateral issues into the trial. Beatrice Gas Co. v. Thomas, 711.

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