21. CONSTRUCTION OF BRIDGES-NEGLIGENCE. Where damages are claimed
for injury arising from the falling of a trestle while a railway train
was attempting to cross in time of unusual and extraordinary flood,
unless it is proved that the negligent and insufficient manner in which
the trestle was constructed was the real and proximate cause of the
injury, or that its insecure and dangerous condition was known to
the company, the latter is not liable, and if such flood was of such over-
powering and destructive character as to produce the injury, apart from
and independent of the particular negligence alleged in the construction
of the trestle, there is no liability, though some negligence may have
existed in its construction and maintenance. Id.
22. NEGLIGENCE OF EMPLOYEES SIGNALS. Where a railroad company
is liable for the negligence of a watchman or flag-man to give proper
signals, unless a signal is given in accordance with the rules of the
company prescribing the manner in which such signal must be given,
a conductor or engineer is not authorized to rely upon it, and if he does,
and injury ensues to him in consequence, and no other negligence con-
tributed to produce it, negligence cannot be imputed to the company.
23. CONTRIBUTORY NEGLIGENCE - EMPLOYEE. - Where an engineer in charge
of a construction train is killed by the fall of a bridge over which he
is attempting to pass in time of unprecedented flood, and the evidence
shows that he had examined the bridge the same day, and knew, or
ought to have known, that the water was rapidly rising, then if he knew
the manner in which the bridge was constructed, the unusual character
of the flood, the danger to the bridge from overflow, and the rapid
rising of the water, and with such knowledge attempted, without com-
pulsion, necessity, or superior orders, the hazardous passage, his neg-
ligence sufficiently contributed to his injury to defeat recovery. Id.
24. RAILWAY COMPANIES' RIGHT TO COMMON USE OF TERMINAL TRACKS.
Where the lines of two railways terminate at the same town or city,
they may use the same track within such town or city, and when they
do so, the track so used becomes, for the time being, the track of the
company so using it, and the owner of such track is not answerable to
one of its employees for injuries resulting from the negligence of em-
ployees of the other road while running its train upon such track. Geor-
gia R. R. and Banking Co. v. Friddell, 444.
25. RAILWAY COMPANY IS NOT ANSWERABLE FOR INJURIES SUFFERED BY ONE
OF ITS EMPLOYEES FROM THE NEGLIGENCE OF THE EMPLOYEES OF AN-
OTHER RAILWAY while running over the track of the former, where such
track was at a terminal point common to both companies, and both had
therefore a right to its use. Id.
See CONTRACTS, 1; EASEMENTS, 1, 2; HIGHWAYS, 6-8, 11-13.
See CRIMINAL LAW, 14, 15, 72, 73.
1. RIGHT OF STOPPAGE IN TRANSITU. If after the vendor has delivered
goods out of his own possession, and put them into the hands of a
carrier for delivery to the buyer, he discovers that the buyer is in-
solvent, he may retake the goods, if he can, before they reach the buyer's
possession, and his right to do this is called the right of stoppage in
transitu. The right arises solely upon the buyer's insolvency, unknown
to the vendor at the time of the sale, and is based upon the plain reason
of justice and equity, that one man's goods shall not be applied to the
payment of another man's debts. It is a right highly favored on account
of its intrinsic justice, and it may be exercised at any time before the
goods are actually or constructively delivered by the carrier to the buyer.
Farrell v. Richmond etc. R. R. Co., 760.
2. VENDOR'S RIGHT OF STOPPAGE IN TRANSITU IS PARAMOUNT TO ALL LIENS
against the vendee, even to a lien in favor of the carrier, existing by
usage, for a general balance due him from the consignee, and to the lien
of an attachment or execution against the vendee levied before the de-
livery of the goods to him. Id.
3. CONDITION RETAINING TITLE IN VENDOR OF PERSONAL PROPERTY UNTIL
PAYMENT IS MADE, EFFECT OF ON RIGHTS OF INNOCENT PURCHASER.
In Michigan, the right of a vendor of personal property upon a condition
retaining title in himself until payment is made to follow it into the
hands of third parties, or to sue them for its conversion, depends upon
the good faith of the transaction; and where the purchase is made from
the vendee in good faith, and without notice, under circumstances in
which the original vendor must have known or contemplated that the
property would be sold by his vendee and incorporated into or made part
of the freehold, his rights will be made subservient to those of the inno
cent purchaser. A verdict should, therefore, be directed for the defend-
ants in an action of trover to recover the value of machinery in their
mill, where it appears, from the evidence, that the plaintiffs, when they
made to the millwright who built the mill for the defendants a condi-
tional sale of the machinery upon condition that the title should not
pass to the vendee until payment was made, knew that the machinery
was purchased by the vendee for the purpose of placing it in the mill of
the defendants, under a contract which bound him to so place it, and
knowing that fact, obtained from the defendants, upon the vendee's order,
the down payment for the machinery, and guaranteed its shipment, to be
used in the mill, and where it further appears that the defendants had
no notice or knowledge, when the machinery was placed in the mill, that
the plaintiffs still claimed the title to it. Jenks v. Colwell, 502.
4. PARTY AFTER GIVING APPARENT CONSENT TO CONTRACT OF SALE MAY
REFUSE TO EXECUTE IT, or he may avoid it after it has been completed,
if the assent was founded or the contract made upon the mistake of a
material fact; such as the subject-matter of the sale, the price, or some
collateral fact materially inducing the agreement; and this can be done
when the mistake is mutual. If there is a difference or misapprehension
as to the substance of the thing bargained for, if the thing actually de-
livered or received is different in substance from the thing bargained
for and intended to be sold, then there is no contract; but if it be only
a difference in some quality or accident, even though the mistake may
have been the actuating motive to the purchaser or seller, or both of
them, yet the contract remains binding. Sherwood v. Walker, 531.
5. WHERE Cow CONTRACTED TO BE SOLD ON UNDERSTANDING OF BOTH PAR-
TIES THAT SHE IS BARREN, and useless for breeding purposes, proves
not to be so, the vendor has the right to rescind the contract, and to
refuse to deliver the cow. Id.
6. WARRANTY, ALTHOUGH COLLATERAL CONTRACT, MUST FORM PART of
the transaction involving the sale. If the vendor has possession, no
special form of words is necessary to create the warranty, an affirmation
at the time of the sale being sufficient, provided the affirmant intended
to warrant, and did not express a mere matter of judgment or opinion.
Hexter v. Bast, 874.
7. PURCHASER OF GOODS WITH WARRANTY IS NOT BOUND TO RETURN THEM
upon discovery by him of the breach of the warranty; but he has the
right to retain them, and seek his remedy founded upon the breach of
the warranty; and this right is not qualified by the fact that the seller
was dealing with the property of others to whom he was required to ao-
count for the proceeds of sales made by him, where the purchaser, soon
after the sale, advises him of his claim for damages for the breach. Ar-
gersinger v. Macnaughton, 687.
See BAILMENTS, 1; CHATTEL MORTGAGES, 1; DEFINITIONS, 2; ESTOPPEL, 3.
SEDUCTION.
See CRIMINAL LAW, 76, 79.
1. SCHOOL DISTRICT ORDER DRAWN ON COUNTY SUPERINTENDENT BY TWO
TRUSTEES, ONE OF WHOM IS INTERESTED, IS VOID. - Order for a requi-
sition drawn on the county superintendent of public schools by but
two of the three trustees of a school district, one of whom is personally
interested in the order, and therefore incompetent to act, is void for
want of the sanction of a competent majority of the board of trustees,
whether the interested trustee has acted fairly or unfairly in the
matter. Shakespear v. Smith, 327.
2. SCHOOL DISTRICT-Order Drawn by TRUSTEES ON COUNTY SUPERINTEND-
ENT IS NOT NEGOTIABLE INSTRUMENT. — Order for a requisition drawn
on the county superintendent of public schools by trustees of a school
district is not a negotiable instrument in the sense that an innocent
holder for value is protected against infirmities in its origin. Id.
3. PARTIES-JOINDER OF PARTIES DEFENDANT IN ACTION TO CANCEL ILLEGAL
SCHOOL ORDER. — It is proper to join as parties defendant in an action
by a taxpayer, to compel the cancellation of an illegal order for a requisi-
tion drawn on the county superintendent of public schools by the trus
tees of a school district, and to restrain the superintendent from drawing
▲ requisition on the county auditor, the parties interested in the order,
and the superintendent. Id.
SET-OFF AGAINST JUDGMENT IS NOT OF RIGHT, but of grace, and is only
granted where a special equity is shown to justify it. Thropp v. Suequo
hanna Mut. Fire Ins. Co., 909.
INFANCY OF HEIRS OF DECEASED PLAINTIFF IS NOT LEGAL Excuse for their
failure to perform the contract of their ancestor, in an action to compel
a vendor to specifically perform a contract for the sale of land, and the
AM. ST. REP., VOL. XI.— 64
laches which would have barred such an action by him will bar a like
action prosecuted by them. Hayes v. Nourse, 700.
1. To make the statute of frauds available as a defense to be raised by de.
murrer in equity, the bill must show affirmatively that the contract or
promise declared on was not in writing. Manning v. Pippen, 46.
2. MARRIAGE DOES NOT CONSTITUTE PART PERFORMANCE. - Marriage is not
of itself a part performance of a verbal agreement to convey real prop-
erty, in consideration of the marriage, sufficient to take the case out of
the statute of frauds. Peek v. Peek, 244.
3. POSSESSION WHEN PART PERFORMANCE. - Possession does not constitute
a part performance of a verbal agreement by a husband to convey real
property to the wife, in consideration of the contemplated marriage,
sufficient to take the case out of the statute of frauds, where the wife
simply resides upon the property with her husband. Id.
4. VERBAL AGREEMENT TO CONVEY REAL PROPERTY EXECUTED IN EQUITY
ON ACCOUNT OF FRAUD- VOLUNTEER WITHOUT NOTICE. - Equity will
enforce a verbal agreement by a husband to convey real property to the
wife, in consideration of the contemplated marriage, where the marriage
is brought about, without the execution of the conveyance, by means of
the husband's fraudulent representations; and the agreement may be en-
forced against a child of the husband by a former marriage, to whom the
husband conveys the property without consideration, notwithstanding
the child was innocent of the fraud. Id.
1. CONSTITUTIONAL LAW.-Texas acts of March 11 and April 4, 1881, levy-
ing an occupation tax and providing for the issuance of a license, are con-
stitutional and valid, and do not contain more than one subject, namely,
the exercise of the police power and that of taxation for general reve-
nue; nor do they embrace subjects not expressed in their titles. Fahey
v. State, 182.
2. CONSTITUTIONAL LAW. While the object of a statute may be to regulate
the sale of liquors, to collect revenue, and divers other purposes and ob-
jects, still it is constitutional, unless there is more than one subject in
the act. Id.
& CONSTITUTIONAL LAW.-Though there is more than one subject men-
tioned in an act, still if they are germane or subsidiary to the main
subject mentioned in the title, or if relative directly or indirectly to the
main subject, or so long as the provisions are of the same nature, and
come legitimately under one subject or denomination, the act is consti-
tutional and valid. Id.
4 CONSTITUTIONAL LAW. Though the Texas constitution empowers the
imposition of occupation taxes, and requires that taxation shall be
equal and uniform, still it does not necessarily mean that equality
and uniformity must be provided between different classes of occupa
tions, nor that the same conditions must be imposed upon every class as
a condition precedent to the pursuit of such occupation. Hence a stat-
ute requiring that retail liquor dealers procure a license and prepay the
tax imposed for a year in advance is not unconstitutional, though the
same conditions are not imposed upon all occupations, and so one county
may legally impose a larger occupation tax upon one class within its
limits than is imposed by another county upon the same class. Id.
5. CONSTRUCTION AS TO EXTENT OF AUTHORITY. - An act authorizing the
construction of a boom on the south side of a stream is authority to
use the shore on that side as part of the inclosure, and to erect, in con-
nection therewith, the piers necessary to complete the inclosure on the
other side. Powers's Appeal, 882.
See CONSTITUTIONAL LAW, 1-3; ELECTIONS, 4, 7, 26; HIGHWAYS, 10-12;
MINES AND MINING, 1; Taxation, 4; TRUSTS ANd Trustees, 3.
STOPPAGE IN TRANSITU.
See CARRIERS, 5; SALES, 1, 2
1. SURETY IS NOT DISCHARGED BY CREDITOR'S FAilure to PRESENT HIS
CLAIM against the estate of the principal debtor, under the laws of Cali
fornia. Bull v. Coe, 235.
2. RELEASE OF SURETY BY RELEASE OF PRINCIPAL DEBTOR IS NEW MATTER,
and must be pleaded as such. Nor will the omission be supplied by the
course of the parties at the trial, unless such course appears clearly and
beyond all controversy. Id.
See APPEAL, 7; Guardian and Ward, 2; MARRIED WOMEN, 4; NEGOTIABLE
INSTRUMENTS, 6.
1. ABSTRACT-BOOKS NOT SUBJECT TO. The Michigan constitution requiring
that property shall be assessed at its cash value means, not only such
property as may be put to valuable uses, but also such as has a recog
nizable cash value inherent in itself, and not enhanced or diminished
according to the person who owns or uses it. Books of abstracts of title
have no intrinsic value, and are only valuable for the information they
contain, conveyed by consultation or extracts, hence they are not subject
to taxation. Perry v. City of Big Rapids, 570.
- COURT OF EQUITY CANNOT REVIEW the action of an assessor
or board of equalization in making an assessment, unless it can be shown
that the assessment was fraudulently made, or that the property assessed
was not liable to taxation, or that the legislature has, in authorizing the
tax, disregarded or transcended the principles of equality, or that a tax
has been levied when not authorized by law. Horse etc. R. R. Co. v.
Donoghue, 90.
3. AN ASSESSMENT IS NOT SHOWN TO BE FRAUdulent by proving that the
committee of assessment promised an attorney, who appeared before
them and made a statement with respect to the property to be assessed,
that if they were not satisfied with his statement that they would notify
him if they intended to make any assessment, and that they subsequently
did make such assessment without complying with their promise. Id.
4. TAX SALES - RETROSPECTIVE LAWS. A statute declaring that hereafter
no purchaser at a tax sale shall be entitled to a deed, unless he has com-
plied with certain conditions designated in such statute, applies to sales
previously made for which no deed has issued, and for which the land-
owner yet retains the right of redemption. Such statute is not retro-
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