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Supreme Court (sec. 58). By section 59 (2 R. S., 67) it was provided : The final determination of such issue shall be conclusive as to the facts therein controvered in respect to wills of personal estate only, upon the parties to the proceedings." In case the decree of the surrogate was affirmed or was reversed on questions of law, by the circuit judge, an appeal could be taken to the Court of Chancery (2 R. S., 609, secs. 97, 100). Under these statutes it is clear that a judgment entered on a verdict, establishing a will, after a trial of issues of fact before the Circuit, was not conclusive upon the beir, to whom the right remained to contest the validity of the devise in an action of ejectment, and by chapter 238, L. 1853, he was authorized to contest the validity of a devise by an action in partition.

Under the Constitution of 1846 the statute authorizing an appeal to a Circuit judge was changed and an appeal was authorized to be taken to the Supreme Court, and in case the decision of the surrogate was reversed upon a question of fact, the questions were directed to be tried before a jury (sec. 12, chap. 280, L. 1847). 'The statutes remained in this condition until the adoption of the Code of Civil Procedure, by which the Surrogate's Court is made a court of record and is vested with the power to probate wills relating to realty and personalty. By section 2626, C. P., the decree admitting a will to probate is conclusive as to the personalty, unless it is reversed on appeal or revoked by the surrogate; but the decree is not conclusive upon the heir, but is presumptive evidence only of the validity of the devise. (Code Civil Procedure, section 2627.) When an appeal is taken to the Supreme Court it may affirm or reverse the decree, and, if modified or reversed upon a question of fact, a trial before a jury of the issues of fact must be awarded. The provision of the Revised Statutes, that the decision to be entered upon the issue so awarded shall be conclusive as to the personalty only, is not continued by this code, nor do we find any provision stating the effect of a judgment so rendered.

By section 1537 of the Code of Civil Procedure the provisions of chapter 238, L. 1853, were continued in force, an and heir of a devisor is authorized to maintain an action for the partition of land apparently devised to another upon the ground that the devise is void. In addition to these provisions any person interested in a will which has been admitted to probate in this State may maintain an action to cause the validity thereof to be determined (Code of C. P., sec. 2653A, enacted in 1892; Long v. Rodgers, 79 Hun, 441). It is apparent that under our boasted reformed procedure a will relating to realty and personalty may be declared void be

cause of the insanity of the testator, or for any other cause, in respect to one species of property and valid in respect to the other kind of property, upon the ground that the testator was sane, and so there may be two final adjudications, both supposed to be verities, one affirming a will to be valid and the other affirming it to be void. And in case a will relating to realty and personalty is admitted to probate in the Surrogate's Court and the decision is reversed by the Supreme Court and the issues are tried before a jury, which are found in favor of the validity of the will, upon which an adjudication is entered by the Surrogate's Court decreeing the probate to be valid, the heir may, notwithstanding, retry the question as to the realty, and possibly, as in the case at bar, obtain a verdict and a judgment that the will is invalid. But the remedy for this incongruous and absurd procedure by which judgments diametrically opposed to each other may be recovered in respect to the same will, does not lie with the courts but with the Legislature. We are compelled to hold that the decree entered upon the verdict of the jury in the Court of Common Pleas is not a bar to this action.

This action was not brought under section 2653A, Code of Civil Procedure, enacted in 1892, but was brought four years prior to its enactment, under section 1537 of the Code, and the provision of section 2653A, that "the party sustaining the will shall be entitled to open and close the evidence and argument," is not applicable to this case, and the court did not err in denying the appellant's motion to be given the right to open and close the case.

It is urged that the court eired in refusing to direct the jury to find the second, third, fourth and fifth issues of fact in favor of the contesting defendants. Upon reading the evidence, we are of the opinion that it required the court to submit every one of these issues to the jury, and that no error was committed in refusing to direct a verdict, or in denying a motion for a new trial on the ground that it was contrary to the evidence. The learned trial judge instructed the jury fully and carefully in respect to the law relating to the issues submitted, and it was not error after the delivery of his charge to refuse to reinstruct the jury on these issues in the language of counsel as expressed in nearly fifty requests. The ninth and tenth requests, at folios 1020 and 1021, are typical of all. By these requests the court was asked to instruct the jury in respect to the rules of law relating to undue influence, which requests were declined. The court had already carefully instructed the jury upon this issue at folios 966 et seq., and it was not error to refuse to reinstruct the jury on the same subject in the language of counsel. Under sections 970 and 1544 of the Code of Civil Procedure the

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verdict of the jury was not merely for the information of the court, but was conclusive until set aside or a new trial granted, and the Special Term, upon its continuation of the trial, had no power to set aside the verdict and find the facts contrary thereto. (Jones v. Jones, 120 N. Y. 589.) Our attention is called to thirteen exceptions to the admission and exclusion of evidence in the appellants' twelfth point. To discuss each one of them and show why they were not well taken would unnecessarily prolong this opinion, and it is, we think, sufficient to say that none of them calls for the reversal of this judgment, entered upon the conclusion of a prolonged and carefully conducted trial.

applies to natural persons who are guilty of such misconduct. It is confined, however, to abuses perpetrated in the line of duties assigned to them, and does not extend to any tort, wantonness, or wrongful act the employes may commit in matters not connected with the service of the railroad corporation. In the line of their assigned duties they stand in the place of the corporation; without that line the corporation is bound by nothing they may do.' Railroad Co. v. Whitman, 79 Ala. 325. The same principle had been differently but very clearly expressed in Gilliam v. Railroad Co., 70 Ala. 268 'that if the employe, while acting within the scope of the authority of the employment, do an act

The judgments and order should be affirmed, injurious to another, either through negligence, with costs.

All concur.

LIABILITY OF COMMON CARRIER FOR TORTS OF SERVANTS.

A

GOODLOE V. MEMPHIS & C. R. R. Co., 18 S. R. 166. CASE in which a general discussion of the liability of a common carrier for torts of its employes is decided by the Supreme Court of Alabama in Goodloe v. R. R. Co. The facts in substance were that the plaintiff was injured, after having purchased a ticket at the defendant's office for transportation over its line, by a servant of the defendant who was scuffling on the platform of the depot. As the action of the defendant's servants was not incident to the employment, the court held that the company were not liable. The opinion conteins an interesting discussion on this subject of the liability of a master for the torts of his servant, and the material part is as follows:

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The question presented has been well considered by this and many other courts. It was recently before us in the case of Lampkin v. Railroad, 17 South. 448, in which, as the result of the authorities there cited, it was stated, as the well settled rule, that the carrier's obligation was to protect its passengers against the violence and insults of its own servants and of strangers and co-passengers; that a contract exists between a common carrier and its passengers to use all reasonable exertion to protect them from injury from fellow passengers and its agents in charge of the train. In an earlier case it was said that the clearly established doctrine now is that railroad corporations are liable for all acts of wantonness, rudeness, or force done or caused to be done by their agents or employes, if done in and about the business or duties assigned to them by the corporation; and the rule of vindictive or punitive damages against such corporations for abuse by their employes of the duties and powers confided to them is the same as that which

wantonness or intention, then for such abuse of authority conferred upon him or implied in his employment, the master or employer is responsible in damages to the person thus injured. But if the agent go beyond the range of his employment or duties, and of his own will do an unlawful act injurious to another, the agent is liable, but the master is not. The principle settled in these and many other similar adjudications is not disputed, but its application to the cases as they occur gives rise to continued disputations. What is meant by the words 'while acting within the range of the authority of the employment of the servant,' is made the ground for contention in each case. But that seems, also, to be well settled on authority; and while it is often a matter of nice adjustment to the facts of a case, it has been made clear enough not to be of very difficult application. It is said, on the point under consideration, that the rule of the responsibility of the master for the acts of his servants, 'does not apply simply from the circumstance that at the time when the injury is inflicted the person inflicting it was in the employment of another; but that, in order to make the master liable, the act inflicting the injury must have been done in pursuance of an express or implied authority to do it. That is, it must be an act which is fairly incident to the employment; in other words, an act which the master has set in motion. * * * And generally, where the injury results from the execution of the employment, the master is liable.' (2 Wood RR., Sec. 316.) In explanation of the rule, this court long ago held, as the result of the authorities examined and cited, that when the servant is in the performance of his master's orders, or authorized acts, and in the doing thereof, conducts himself so negligently or unskillfully, that injury results to another, then the doctrine of respondeat superior applies, and the master will be liable in an action on the case; but that for the acts of the agent, willfully and intentionally done, without the command and authoriza

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tion of the master, the servant, and not the master, is liable; and that the rule has no application when the servant actually wills and intends the injury, or steps aside from the purpose of the agency committed to him, and inflicts an independent wrong. (Cox v. Keahey, 36 Ala. 340.) So we find it held, that where a slave, being a passenger on a steamboat, was wounded by a gun negligently discharged by the second engineer of the boat, the captain, in an action against him for the injury, was held not to be liable, because the discharge of the gun by the engineer was not an act done in the course of his employment or in the discharge of any duty connected with the service. (McClenaghan v. Brock, 5 Rich. Law, 17.) And where a servant employed to light fires in a house, lighted furze and straw in order to clean a chimney that smoked, and the house caught fire there from and was destroyed, it was held, that the act of cleaning the chimney in the manner stated was one outside the scope of her employment, and the master was not liable. (McKenzie v. McLeod, 10 Bing. 385.) And still again, in a recent case, where an employe who, being be

hind in his accounts, was suspected of setting fire

to the building in which he was employed, in order to destroy the evidence of his default, we said that there was no evidence tending to show, if the employe did set fire to the building, that it was a negligent act of his, done while in the performance of his duty; and that, if he did it at all, it was his own tortious, wicked act, done outside the line of his employment, in which the defendant did not participate, or, afterwards, in any manner ratify, and for which it was not in any manner responsible. (Collins v. Railroad Co. (Ala.), 16 South. 142.")

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another note of his a few days before the expiration of a year from the advance. Shortly after the expiration of the year, the bank again suspended payment: Held, that the advance to the bank was a voluntary assessment and not a loan, and could not be set off by B in an action against him on the notes by the receiver of the bank. (Brodrick v. Brown [Cal.], 69 Fed. Rep. 497.)

CONTRACTS

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COLLUSIVE BIDDING.-A secret contract between persons proposing to bid upon the construction of a public work, by which their bids are to be put in, apparently in competition, but really in concert, with the intention of securing as high a price as possible, and dividing the profits, is illegal, and contrary to public policy, and will not be enforced, though one of the parties to it has secured the contract for the public work, and has executed the same, and received the profits, (McMullan v. Hoffman, U. S. C. C. [Oreg.], 69 Fed. Rep. 509.)

CRIMINAL LAW -MURDER AND MANSLAUGHTER.—

Defendant was tried for murder, in killing one of two persons who attempted to arrest him without a warrant, and when there was no charge against him— probably mistaking him for another. The court, at defendant's request, charged that if such were the case, and the killing was done while resisting such arrest, it would be, not murder, but manslaughter, but added that if the killing was done in such a way as to show brutality, barbarity, and a wicked and malignant purpose, it would still be murder: Held, that the modification was erroneous, as permitting the jury to return a verdict of guilty of murder merely because of the manner of the killing, even if they believed that otherwise the case was one of manslaughter only, whereas the proper inquiry was whether, at the time of the shooting, such circumstances were present, taking them altogether including the mode of killing made it a case of manslaughter, and not of murder. (Brown v. United States [U. S. S. C.], 16 S. C. Rep. 29.)

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FEDERAL COURTS -- ACTIONS BY NATIONAL BANK RECEIVERS.-The Federal courts have jurisdiction of actions brought by the receiver of an insolvent national bank to realize its assets, irrespective of the citizenship of the parties; and it is immaterial to such jurisdiction whether the action is brought in the receiver's own name, as receiver, or by him in the name of the bank. (Linn County Nat. Bank v. Crawford, U. S. C. C. [Oreg.] 69 Fed. Rep. 532.)

FEDERAL COURTS CONCLUSIVENESS OF STATE DECISIONS.--A single verdict and judgment in ejectment in Pennsylvania not being conclusive in

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GUARANTY

111

NOTIFICATION OF ACCEPTANCE. - N,

an Iowa merchant, having been refused credit by complainants in Chicago, procured from defendant a letter addressed to them, and offering to guaranty payment of such purchases as N might make for his fall and winter trade. On the strength of this letter, plaintiffs sold N goods, and, on the same day, wrote to defendant, acknowledging the receipt of his letter "guarantying whatever N may purchase of us for his fall and winter stock," and saying, "His purchases up to this time amount to $3,390.50, which we are getting ready for shipment." Held, that, in view of the situation of the parties, this letter was a valid notice of acceptance of the offer of guaranty, so as to make the guarantor liable for the amount of the purchases. (Hart v. Minchen, U. S. C. C. (Iowa), 69 Fed. Rep. 520.)

MORTGAGE FOLECLOSURE

APPOINTMENT OF RE

LANDLORD AND TENANTS - DEFECTIVE PREMISES.

A landlord letting a house with a warranty of the safety and sufficiency of the ceiling is liable (not on the warranty itself, but on the ground of negligence) for an injury to the tenant's infant child, resulting from the fall of the ceiling upon it. (Moore v. Steljes, U. S. C. C. [N. Y.], 69 Fed. Rep. 518).

LIFE INSURANCE

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SUICIDE INSANITY.-If one

whose life is insured kills himself when his reasoning faculties are so far impaired by insanity that he is unable to understand the moral character of his act, even if he does understand its physical nature, consequences, and effect, his self-destruction will not, of itself, prevent a recovery on the policy. But by capacity to understand the "moral character of his act" is to be understood a capacity to .understand what he was doing, and the consequences thereof to himself, his character, his family the act, as a sane man would. (Ritter v. Mutual and others, and to comprehend the wrongfulness of Life Ins. Co. of New York, U. S. C. C. [Penn.], 69 Fed. Rep. 505.)

PUBLIC LANDS HOMESTEAD RIGHTS. A homestead settler whose land has been included by the government in allotments made to Indians in fulfillment of treaty stipulations, but who has not perfected his right by making proof in the land office of full compliance with the law, is not entitled, in a suit against certain Indians and an army officer, who threatens to put them in possession, to a d:cree declaring him to be the owner of the land, and quieting his title. But, as a bona fide settier and owner of the improvements, he is entitled to an injunction protecting him in his possessory rights until the questions of law involved can be determined in a court of competent jurisdiction. (La CEIVERS. Under a statute declaring that a mort-Chapelle v. Bubb, U. S. C. C. [Wash.], 69 Fed. Rep. gage of real property shall not be deemed a convey- 481.) ance so as to enable the mortgagee to recover possession without foreclosure and sale (Gen. Laws Or. 1845, 64, p. 228, § 323), the mortgagee has no right to take the rents, profits and crops before he has secured possession by actual foreclosure and sale according to law; and it is not in the power of the parties, even by express stipulation, to give him such right. Therefore, a provision in a mortgage of farm lands that, in case foreclosure proceedings are instituted, a receiver may be appointed to take the rents, profits and crops, and apply them on the debt, in no wise enlarges the mortgagee's rights. In a proper case, the court will appoint a receiver without any such stipulation; and, in any other case, it will not appoint one, whatever the parties may have agreed. (Thomson v. Shirley, U. S. C. C. [Oreg.], 69 Fed. Rep. 484.)

RAILROAD COMPANIES NEGLIGENCE. A railroad company is not excused from taking other proper precautions by compliance with statutory requirements as to giving signals at crossings. (Clark v. Canadian Pac. Ry. Co., U. S. C. C. [Vt.]. 69 Fed. Rep. 543.)

RAILROAD COMPANIES

NEGLIGENCE.- -The only duty which a railroad company owes to those who, without its knowledge or consent, enter upon its track, not at a crossing or other public place, is not wantonly and unnecessarily to inflict injury upon them after its employes have discovered them. It owes them no duty to keep a lookout for them before they are discovered. (St. Louis & S. F. Ry. Co. v. Bennett, U. S. C. C. of App., 69 Fed. Rep. 525.)

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RAILROAD FORECLOSURES - RIGHT OF REDEMPTION. —Where a junior mortgagee is a party defendant to a foreclosure bill in which there is a prayer that he be decreed to redeem, and a sale is ordered in default of payment, declaring the senior mortgagee's right to redeem forever barred, a similar order as to the right of redemption by the junior mortgagee is not substantially or even formally necessary. He will have a right to redeem without such order, but, if he fail to assert the right, and stand by while the sale is made and confirmed, he must be deemed, in equity, to have waived his right. (Simmons v. Burlington, C. R. & N. Ry. Co., U. S. S. C., 16 S. C. Rep. 1.)

RAILROAD MORTGAGES.- Where a railroad mortgage is expressly to secure interest as well as principal, and both are equally within the positive terms of the condition, a default in payment of the interest gives the mortgagee a right to bring a foreclosure suit, especially where, by the express terms of the instrument, he is forbidden to proceed for the collection of interest by ordinary judgment and execution at law. (Pennsylvania Co. for Insurance on Lives and Granting Annuities v. Philadelphia & R. R. Co., U. S. C. C. [Penn.], 69 Fed. Rep. 482.)

RES JUDICATA

ACTION TO RECOVER REAL PROP

ERTY. - In an action to recover real property, brought under the Code of North Dakota, which has abolished the fictions of the old action of ejectment, the judgment is a bar to a subsequent action only when the titles and defenses are the same, and is therefore not a bar where the defense is founded on a title acquired subsequent to the judgment, and which was not and could not have been set up in the earlier action. (Northern Pac. R. Co. v. Smith, U. S. C. C. of App., 69 Fed. Rep. 579.)

SALE ON CONSIGNMENT.-A shipment of goods "on consignment" to one to whom plaintiff had previously been selling, to be held as the property of plaintiff and subject to his order until sold, the price at which they were listed to the consignee to be remitted as fast as they were sold, and when he took notes in lieu of cash, these notes to be remitted as collateral for his account, does not constitute a sale. (Vermont Marble Co. v. Brow [Cal.], 41 Pac. Rep. 1031.)

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form or in other forms into which it has been converted. (Spokane County v. First Nat. Bank of Spokane [U. S. C. C. of App.], 68 Fed. Rep. 979.)

WATER COMPANIES REASONABLENESS OF REGULATION. A private corporation which procures from a municipal corporation a franchise for supplying the latter and its inhabitants with water, and by virtue of which franchise it is permitted to and does use the streets and alleys of such municipal corporation in the carrying on of its business, becomes thereby affected with a public use, and assumes a public duty. That duty is to furnish water at reasonable rates to all the inhabitants of the municipal corporation, and to charge each inhabitant, for water furnished, the same price it charges every other inhabitant for the same service under the same or similar conditions. (American Water-works Co. v. State [Neb.], 64 N. W. Rep. 71.)

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answers to the questions which have been prepared aim at accuracy and endeavor to cover the points involved in the question submitted. In addition to this most valuable feature of the work is the citation of authorities after each answer. The work is of convenient size, comprehensive, and covers all the general principles of law. The arrangement of the book is excellent and the citations after the answer aid the student to turn from a mere everyday matter of learning so much and enables him to obtain a reason for everything which the book contains. The work is divided into fourteen chapters, and contains a table of cases cited. The work contains over two hundred pages of questions and answers and has a very complete index.

Published by Reuben's Old Law Book House, San Francisco, Cal.

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