9. Malice, but not in ordinary sense of hatred or ill will, is essential ele-
ment in action for libel; but if publication be in itself libellous, law in such
case implies malice, and only question before jury on plea of not guilty, pub-
lication being established, is the amount of damage; in estimating which, jury
are to consider whether article was published wantonly, or as editors of news-
paper honestly commenting upon official conduct of plaintiff. Negley v. Far-
row, 813.
10. Statute 32, Geo. III, ch. 60, not in force in Maryland, where court
always decides whether publication is in law a libel. Id.
LICENSE. See CONSTITUTIONAL LAW, 5, 16. INTOXICATING Liquor, 1.
LIEN. See ADMIRALTY, 3. ATTACHMENT, 4. CORPORATION, 9. HUSBAND
AND WIFE, 7. 16. INSURANCE, 14.
LIMITATIONS, STATUTE OF. See BILL OF REVIEW. GIFT, 2. TRUST
AND TRUSTEE, 9.
1. May be pleaded by a county.
Gains v. Hot Springs County, 419.
2. In action for damage against railroad company for unreasonable delay
in transportation of merchandise, where portion of delay occurred more than
six years prior to date of writ, the damage for that portion of delay was
barred. Jones v. Railway Co., 420.
3. Action entirely arising out of a statute not within.
holders, 147.
4. Is not suspended or waived by representation made by administrator to
Orphans' Court to procure order to sell lands for payment of debts, nor is
order of sale such an adjudication as prevents administrator setting it up at
law. Everett v. Williams, 548.
5. New cause of action, cannot escape statute, by being introduced by way
of amendment into declaration in action for different cause, brought before
lapse of statutory time. North Chicago Co. v. Monka, 814.
6. But where new count is added merely to restate same cause of action,
plea of statute thereto is improper. Id.
7. Upon a plea of, the only evidence given of possession during first year
was that defendant's grantor went once upon the land, set up two stakes at
what he was told were corners, tried to ascertain the boundaries and afterwards
paid the taxes for the year. Held, insufficient. Bradstreet. v. Kinsella, 348.
8. Instrument signed by maker and witnessed, stating that maker had
received of S. a horse, for which he promised to pay S., or order, a sum named
in one month from date, "said horse to be and remain the entire and absolute
property of the said S. until paid for in full by me," is not a promissory note,
and an action brought thereon, more than six years after its date, cannot be
maintained. Sloan v. McCarty, 689.
9. Action to foreclose mortgage, given to secure note, may be commenced at
any time within twenty-one years after execution, notwithstanding note is
barred by statute. Riddle v. Howenstein, 689.
10. Award under seal is specialty within meaning of statute, though submis-
sion was by parol. Halnon v. Halnon, 689.
11. "I thank you for your very kind intentions to give up the rent of Tyn-
y-bwrwydd next Christmas, but I am happy to say at that time both principal
and interest will have been paid in full." Held, sufficient acknowledgment to
bar statute. Green v. Humphreys, 754.
12. Trusts which fall within exclusive jurisdiction of courts of equity are not
subject to statute. Buckingham v. Ludlum, 754.
13. Courts of equity only follow statute by analogy, and when it is not
against conscience to do so.
Id.
14. Creditor of firm may have relief in equity for payment of his debt,
against separate assets left by deceased partner, if surviving partner be insol-
vent and firm assets exhausted. Id.
15. Representatives of deceased partner cannot set up statute against firm
creditor, so long as surviving partner continues liable for debt and has right to
seek contribution from deceased partner's estate, for payment of debts of firm. Id.
16. One partner cannot set up statute against other, where there have been
dealings in respect to partnership affairs, within six years. Id.
1. Incapable of acquiring pauper settlement in his own right. Inhabitants,
&c., v. Inhabitants, &c., 147.
2. Such a person, until forty-eight years of age, lived in his father's family
and was then sent to insane hospital. Held, That he followed father's residence
acquired while pauper was in hospital. Id.
MALICIOUS PROSECUTION. See ABATEMENT. CORPORATION, 1.
1. Voluntary dismissal of civil action is prima facie evidence of want of
probable cause. Wetmore v. Mellinger, 711.
2. Although action is commenced with probable cause, yet if plaintiff con-
tinues to prosecute it when there is no probable cause, he is liable for malicious
prosecution. That probable cause had ceased to exist, must, however, appear
otherwise than from evidence introduced on trial. Id., and note.
3. Advice of counsel, on full and fair statement of facts and information,
will not protect, unless acted on in good faith. Id.
4. On issue of probable cause, certain depositions in former suit, tending to
show that defendant could have ascertained facts which would have had impor-
tant bearing on such issue, adversely to his right to maintain prior action, were
admissible. Id.
5. N. C. Co., a corporation, with malice and without probable cause, sued
M. and others, in civil action, and by order of injunction made on its ex parte
application, prevented M., and others from entering upon their property, and
also from prosecuting profitable business. After year had passed, N. C. Co.
dismissed its action. Held, that company was liable in action of malicious pros-
ecution, and that measure of damages was value of use of property, in business,
during period of ouster. Coal Co. v. Upson, 483.
Will not lie upon relation of citizen and owner of land abutting upon street
through which line of railroad authorized by ordinance would pass, to compel
city clerk to make advertisement required by ordinance. State v. Henderson,
MARRIAGE. See CONTRACT, 6. HUSBAND AND WIFE.
MASTER AND SERVANT. See AGENT, 8, 9. NEGLIGENCE, 5.
1. Railroad company and its train hands must guard the trackmen from.
danger as far as practicable. Dick v. Railroad, 76.
2. Agreement between connecting lines of railroad' does not affect third par-
ties, nor make employees of one line co-employees of others. Railroad Co. v.
State, 77.
3. Contract to work for period of seven months for $14 per month is entire,
and full performance, or valid excuse for non-performance, must be shown to
recover thereon. Koplitz v. Powell, 284.
4. Servant not ordinarily required to work during unseasonable hours; but
if he voluntarily does so, it is no ground for claiming extra compensation or that
there is breach of contract by employer. Id.
5. Mere request to perform unseasonable service does not justify servant in
quitting; nor does refusal to perform same justify discharge. Id.
6. Person employed by city to superintend digging of trench, and one em-
ployed as laborer to dig trench, by same master, are prima facie fellow servants.
Flynn v. City, 814.
7. Master not liable for injury occurring from negligence of fellow-workman,
unless latter was known to be careless or incompetent. Fones v. Phillips,
8. Where performance of duties peculiar to master is intrusted to mere work-
man, such workman, quoad hoc, and to extent of master's duty intrusted to him,
stands in master's place, and his negligence binds master. Id.
9. It is duty of master, in assigning servant to duty at or about dangerous
machinery, to give detailed and special warning as to all latent dangers, not dis-
coverable by reasonable and ordinary exercise of diligence. Id.
10. Corporation is negligent if it employs an imprudent or incompetent per-
son as master over other employees, and responsible for injury to another
servant, without fault, from negligence of such master; especially where
injured employee was child receiving orders solely from said master and with-
out access to president or general superintendent: and it makes no difference
that master violated orders. Atlanta Cotton Factory v. Speer, 147.
11. Railroad company is liable in action on behalf of fireman killed by
washing out of culvert, which was in improper condition, resulting from
negligence and carelessness of its bridge-builder and road-master: his neg-
ligence was negligence of defendant, and notice to him of defective construction
was notice to latter. Davis v. Railroad Co., 623.
12. Workman was injured by break of elevator chain and fall of elevator.
His business was to load elevator on lower floor and unload it on upper.
Staircase near elevator connected the floors, and workman was injured while
riding with his load on elevator. It appearing that chain had broken some six
weeks before and had been repaired, and evidence being conflicting whether
employer's superintendent had been notified of break, and it also appearing
that ratchets to arrest fall of elevator were not in working order: Held, that
employer's negligence was for the jury, and that he was not relieved from
liability if defective condition of chain and ratchets arose from negligence of
fellow-workmen of plaintiff, whose duty it was to take care of them. Mulvey
v. Locomotive Works, 623.
13. M., while using machine in his capacity of workman for manufacturing
company discovered its defects and unsafe condition and complained to foreman,
under whose orders he worked and whose duty it was to see that machinery was
in order. Foreman promised to remedy defects and directed him to work on
machine. M. thereupon continued to use machine, and, in so doing, was in-
jured through said defects before any steps were taken to remedy same. Held,
that his knowledge was not conclusive of contributory negligence, but was a
fact to be considered by jury in determining that question. Manufacturing Co.
V. Morrissey, 574, and note.
Where promissory note is given and received in payment for materials and
work the lien is waived. Crooks v. Door, Sash and Lumber Co., 348.
MINOR. See INFANT. GUARDIAN AND WARD. PARENT AND CHILD.
MORTGAGE. See ATTACHMENT, 2. COVENANT, 2. DEED, 4.
FIXTURE, 4, 5, 7. HUSBAND AND WIFE, 15, 19. INSURANCE, 17, 18. LIM-
ITATIONS, STATUTE OF, 9. TRUST AND TRUSTEE, 3, 4. UNITED STATES
COURTS, 4. VENDOR AND Vendee, 2, 3.
1. Owner of land, or mortgagor in possession after condition broken, may
make valid chattel mortgage of growing crop superior to lien of subsequent
attachment. Kimball v. Sattley, 689.
2. Mortgage of chattels belonging to another with oral consent or ratification
of owner, cannot affect subsequent mortgage of same chattels by owner to one
without notice of ratification. Maier v. Davis, 549.
3. Right of mortgagee to recover on insurance policy or mortgage where debt
has been paid on the other. Castellain v. Preston, 168, note.
4. Trustee in deed of trust is trustee for both debtor and creditor, and he
must use efforts of prudent man to protect all interests in property.
5. All persons must take notice of boundaries of counties and legislative
changes thereof. Welch v. Stearns, 147.
6. Where mortgage has been recorded in one county and mortgaged pre-
mises become by legislative enactment part of another county, notice of fore-
closure should be published in county in which the land is when notice is given.
Id.
7. Generally, one purchasing land subject to mortgage, by express agreement
assumes the mortgage. In such case, as between parties, purchaser becomes
primarily liable and mortgaged property the primary fund for payment of debt.
George v. Andrews, 755.
8. Mortgagee may, by his dealings with purchaser and mortgagor, recognise
purchaser as principal and mortgagor as only security. Id.
9. Extension of time of payment of mortgage by agreement between holder
and purchaser, without concurrence of mortgagor, discharges him from liability.
ld.
MUNICIPAL CORPORATION. See CONSTITUTIONAL LAW, 5, 20. CONTRACT,
21. LIMITATIONS, STATUTE OF, 1. NEGOTIABLE INSTRUMENT, 1. ORDI-
NANCE. SURETY, 4. TAXATION, 1. WHARF, 2.
1. City not liable for negligent acts of officers or men employed in fire depart-
ment. Wilcox v. City, 814.
2. Board of supervisors can, in good faith, compromise judgment in favor of
county. Collins v. Welch, 148.
3. When tax collector arrests tax-payer for non-payment of tax already paid
and which is thereupon paid a second time, the town is not liable for arrest, nor
for money while in hands of collector. Inhabitants, &c., v. Hurd, 148.
4. Power of to pass ordinance interfering with rights of individuals or public
must clearly appear in its charter; authority to pass ordinances to suppress
gambling, and such others for peace and good of town, as may be deemed ex-
pedient, not repugnant to constitution, &c., does not warrant passage of ordi-
nance forbidding keeping of billiard table for hire. State v. Belvidere, 148.
5. Bound by unauthorized acts of officers of that branch which is invested with
jurisdiction to act for corporation upon subject to which particular act relates.
City v. Railroad Co., 284.
6. Property of county being held for public, is under uncontrolled power of
General Assembly. Harris v. Board of Supervisors, 483.
7. Where bonds donated by municipal corporation to railroad company re-
cited, on their face, that an election had been held in accordance with author-
izing statutes, Held, 1. That defect in method of election in no way impairs vali-
dity of bonds in hands of bona fide holder. 2. That decision of state Supreme
Court to contrary, is not binding on United States Supreme Court. Town of
Pana v. Bowler, 484.
8. In the absence of express power city cannot subscribe or donate tɔ manu-
facturing company, and bonds so given are not valid in hands of purchaser for
value but with knowledge. Ottawa v. Carey, 549.
9. In Illinois, under coustitution of state, corporate authorities of cities can-
not be invested with power to levy and collect taxes except for corporate pur-
poses; hence city could not borrow money nor issue bonds unless it had power
to pay same by taxation. Id.
10. City has power to establish such reasonable appliances in public thor-
oughfares where railroads pass, as will by temporary arrest of travel, protect
public from danger. Textor v. Railroad Co., 348.
11. In action against, for damages resulting from breaking of plank in
bridge, the ground is positive misfeasance, or else neglect ; in latter case notice
of condition of street is necessary, in the former not. Mayor, &c., of Bruns-
wick v. Braxton, 348.
12. Legislature having provided for assessment of tax on railroad companies,
and its payment and collection by comptroller-general, if power to assess and
levy tax on railroads had been conferred on municipal corporation by previous
act, it must yield to last act on subject. City v. Savannah Railway Co., 755.
13. City had notice of hole in sidewalk near railroad crossing and neglected
to repair same within reasonable time. Person in passing over such walk, ex-
ercising due care, stepped into hole, whereby be was unavoidably thrown upon
railway track before approaching train, and in attempting to get up his clothes
caught upon rail or spike in sidewalk, and he was killed by train. Held, that
city was liable. City v. Schmidt, 815.
14. Under Illinois constitution corporate authorities of cities cannot be in-
vested with power to levy and collect taxes except for corporate purposes. Held,
that unless city had been invested with power to raise money by public taxation
to be devoted to private parties for developing water-power in city or vicinity
VOL. XXXI.-108
for manufacturing purposes, bonds so given were void in hands of purchaser
with notice. City v. Carey, 755.
15. Semble, that power to subscribe to company's stock would not, of itself,
authorize donation to it. Id.
16. Under general grant of power to declare what shall be a nuisance town
anthorities will have no right to pass ordinance declaring thing a nuisance which
is clearly not such; in doubtful cases the action of the authorities will bind the
court. Railway Co. v. Town of Lake View, 420.
17. On the other hand there are many things which courts, without proof,
will declare nuisances, and ordinance declaring them such will be valid on its
face; of this character is use of steam for propelling street cars along thickly
populated public street. Id.
18. Where city is, by its charter, limited to levy of one per cent. of taxes for
all purposes whatever, three-tenths of which shall be for payment of its bonded
indebtedness, and city does levy one per cent. tax, court, on application of cred-
itor who has recovered judgment on bonds of city, will compel application of
three-tenths of such taxes to payment of such judgment, if that much is neces-
sary. City v. Underwood, 421.
19. Where county courts were authorized to subscribe in behalf of township
to stock of railroad company "building or proposing to build a railroad into,
through or near such township," and to issue county bonds in payment, and
there was a vote of township in favor of issuing certain bonds and subscription
was made and bonds issued, reciting that they were authorized by vote of peo-
ple and issued under order of court; it appearing that, at time vote was taken
and bonds issued, company only proposed to build road from point nine miles
distant from township to further distance, and interest on the bonds having been
paid for three years, Held, that courts should acquiesce in determination by
qualified voters and local authorities that proposed road was
"near" township.
Kirkbride v. Lafayette County, 690.
20. Under constitution of Missouri, city ordinance is void which undertakes
to confer upon one person right to remove and convert to his own use carcases
of all dead animals, not slain for food, found' within limits of city, to exclusion
of right of owners to remove and use them before they become a nuisance.
River Rendering Co. v. Behr, 690.
MURDER. See CRIMINAL LAW, V.
NATIONAL BANKS. See BANK, 4, 5. CRIMINAL LAW, 20, 27. ERRORS AND
APPEALS, 11.
1. Have power to lend money upon personal obligation secured by pledge of
warehouse receipt. Cleveland v. Bank, 690.
2. Interest received by, greater than lawful rate can not be set off in action
on note; but bank can only recover face of note without interest.
Childs, 348.
3. Where stockholder, with good ground to apprehend failure of bank, col-
lusively transfers his shares to irresponsible person, transaction will be deemed
a fraud on creditors and transferror will be held to liability imposed by 12 of
et of June 3d 1864. Bowden v. Johnson, 285.
4. Bill in equity in such a case, praying for discovery as well as relief,
sustained. Id.
5. National banking act confers power to receive special deposits, and where
national bank has been accustomed to receive United States bonds as such,
gratuitously, it is liable for loss occurring through want of that degree of care
which good business man would exercise in keeping property of such value.
Bank v. Zent, 484.
6. Demand, and refusal by bank to deliver, with no other explanation than
statement that it has no such bonds in its possession, furnish sufficient proof
of loss by negligence. Id.
7. Sect. 3466 Rev. Stat. U. S., giving priority to demands of United States
against insolvents cannot be applied to demands against national banks which
have failed, because inconsistent with national banking act. Bank v. United
States, 484.
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