3. THE FACT THAT A LOOSE HORSE WAS FRIGHTENED BY THE EFFORTS OF
PERSONS TRYING TO STOP or capture him, and was thereby caused to run
away, will not relieve from liability his owner, who was guilty of negli-
gence in leaving him unfastened and unguarded in the public streets. Id.
1. REFUSAL TO Give Charge WHICH IS INCOMPLete, and, as It Stands,
MEANINGLESS, is not error. Hangen v. Hachemeister, 691.
2. OBJECTION NOT MADE AT TRIAL, nor included in any assignment of er-
ror, cannot be urged for the first time in the appellate court. Slater v.
Chapman, 593.
8. EXCEPTION WHICH DOES NOT POINT OUT WHEREIN COURT IS CONCEIVED
TO HAVE ERRED in its refusal to charge as requested, and thus give an
opportunity for correction, is unavailing. Tousey v. Roberts, 655.
4. ERROR WITHOUT PREJUDICE. Where a complaint contains irrelevant
and redundant averments, they should be stricken out on motion, but
the refusal to strike them out is not reversible error, unless it affirma-
tively appears that prejudice results thereby to defendant. Columbus
etc. R'y Co. v. Bridges, 58.
5. TO SUBMIT TO JURY, AS QUESTION IN DISPUTE, Material FACT PROVED
by uncontradicted testimony in the case is error. Jenks v. Colwell, 502.
6. Law of Case. —Where a ruling is made in a case by the appellate court,
it becomes the law of that case, and cannot be reviewed at a subsequent
term. Doyle v. Wade, 334.
7. SURETIES IN UNDERTAKING on Appeal ARE CONCLUDED BY THEIR AGREE-
MENT TO PAY from bringing in question, in an action against them
upon their undertaking, any issuable fact that was necessarily deter-
mined by the judgment which they have agreed to pay. Seymour v.
Smith, 683.
8. Section 21, page 734, McClellan's Digest of Florida Statutes, providing
the time within which a new action may be commenced, when judgment
for plaintiff has been reversed for error, or when verdict and judgment
for plaintiff has been arrested, has no application where the plaintiffs in
the suits are not the same, or where the plaintiff in the first suit dis-
continued his action. Doyle v. Wade, 334.
See DAMAGES, 3, 6; EJECTMENT, 3; ELECTION, 17; EVIDENCE, 24, 30; IN-
STRUCTIONS, 4, 5; MALICIOUS PROSECUTION, 14; RAILROAD COM-
PANIES, 9; TRIAL, 8.
See INSURANCE, 19; Judgments, 9.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
1. The assignee of an insolvent debtor, in the absence of fraud in fact and
of statute regulations, takes only the debtor's rights; and consequently
he is affected with claims, liens, and equities enforceable as against the
debtor. Brown v. Brabb, 549.
2. AN ASSIGNEE FOR THE BENEFIT OF CREDITORS is not a purchaser in good
faith. The Michigan statute relative to common-law assignments does
not place the assignee upon any better footing than the creditors he
represents. Id.
See CHATTEL MORTGAGES, 3.
See BILL OF Particulars, 1.
1. THE UNDIVIDED INTEREST OF AN HEIR in land under administration is
subject to attachment, as such attachment does not dispossess the ad-
ministrator, nor interrupt the administration. McClellan v. Solomon, 381.
2. FRAUDULENT CONVEYANCE. An attachment may be levied on the
undivided interest of a debtor in land held by a third party under a
fraudulent conveyance from him; and the plaintiff, on obtaining judg.
ment, may sell such interest, and his purchaser may raise the question
of the fraudulent conveyance in an action of ejectment by him to recover
his purchase from the party in possession. Id.
See JUDGMENTS, 18; Married Women, 5; Sales, 2.
ATTORNEY AND CLIENT.
See CRIMINAL LAW, 47; TRIAL, 6, 7.
1. CONTRACT, WHETHER FOR SALE or Bailment. — Contact between certain
farmers and dairymen and one K., that they should furnish him milk,
and that he should manufacture it into butter and cheese, sell the pro-
ducts, and after deducting four cents per pound for the butter and two
cents per pound for the cheese, should divide the balance among them
in proportion to the amount of milk furnished by each, constitutes him
their factor merely, and does not vest in him the ownership of the cheese
and butter manufactured. First Nat. Bank of Elgin v. Schween, 174.
2. CONFUSION OF GOODS. — If one unlawfully mixes and confuses his goods
with those of another so that they cannot be distinguished, the innocent
party becomes entitled to the whole. Hence if one who has contracted
with others to manufacture into butter and cheese milk furnished by them
mixes with the product of such milk butter and cheese purchased from
others by him, he or his successor in interest has no title to any of the
resulting mixture, unless he can identify that part which was his. Id.
1. A BASTARD COULD NOT INHERIT EVEN FROM ITS MOTHER by the common
law, and this rule prevailed in the state of Illinois until, in the year
1829, a statute was enacted rendering illegitimates competent to inherit
from their mother. Orthwein v. Thomas, 159.
2 EVERY CHILD IS PRESUMED to have beeN BORN IN LAWFUL WEDLOCK;
and this presumption must prevail until overcome by clear and convin-
cing proof. Id.
& PRESUMPTION THAT A CHILD Was Born in LawFUL WEDLOCK, and is legiti-
mate, is not overcome by mere rumor, nor by the absence of positive
proof of the actual marriage of its parents, nor by evidence of the sons
of a brother of the child's mother that they had heard their father say
that such mother had no husband, and that her child was illegitimate.
And where the question was as to the legitimacy of Susannah, wife of
Thomas O., and daughter of Hannah, it was held that a deed made after
the death of Hannah by her parents, James and Fanny H., to Susannah
and her husband, Thomas, reciting the death of Hannah, the wife of
William R., and that the grantors were Hannah's parents, and were her
heirs at law, and that for the purpose of vesting the said Susannah and
her husband with all the lands of which said Hannah was possessed in
her lifetime, the grantors granted to said Thomas and Susannah all the
lands which descended to the grantors on the death of their said daugh-
ter Hannah R., did not remove the presumption of Susannah's legiti
macy, though if she were legitimate, she, and not the grantors in said
deed, was the heir at law of said Hannah. Id.
BETTERMENTS.
See HUSBAND AND WIFE, 2.
1. ASSUMPSIT - BILL OF PARTICULARS — EVIDENCE OF VOID CONTRACT. –
Where plaintiff declares in assumpsit, and afterwards files a bill of par-
ticulars praying the recovery of money paid on land contracts without
consideration, alleging that defendant had no title to convey, he may
prove such contracts void for want of due execution under the statute
of frauds, when the defendant does not claim that such evidence would
be a surprise to him, or that he is unprepared to meet it. Wright v.
Dickinson, 602.
2. BILL OF PARTICULARS is considered in some respects as an amplification of
the declaration, but it is sufficient if it fairly apprise the opposite party
of the nature of the claim, so that there can be no surprise. Id.
BOARD OF TRADE.
See COMMERCE, 1, 2.
See AGENCY, 9; EXECUTIONS, 2; Judgments, 22; LIS PENDENS, 5; NEGOTI-
ABLE INSTRUMENTS, 4; Sales, 3; VENDOR AND Vendee, 14.
See OFFICE AND OFFICERS, 1, 2.
See DEFINITIONS, 1; Equity, 3; Statutes, 5.
1. PAROL AGREEMENT — BURDEN OF PROOF. Where tenants in common
by exchange of deeds divide their land, but leave the description of the
boundary line confused and ambiguous, and the grantee of one of the
tenants, as plaintiff in ejectment, claims up to boundaries fixed by a
construction of the deeds by the court, while the defendant, the grantee
of the other tenant, claims up to a different boundary line as fixed by
a parol agreement between the tenants, the burden of proof is on de-
fendant to show the existence of such agreement, and that the boundary
fixed by it had been accepted and acquiesced in by the tenants. This
may be shown by the acts of the tenants while they were the owners
of the land, by showing improvements made thereon by defendant's
grantor, and statements by plaintiff's grantor made subsequent to such
agreement, while he was owner, against his title. Jones v. Pashby, 589.
2. ACQUIESCENCE - LIMITATIONS. Where parties, by mutual agreement
and for that express purpose, meet and fix a boundary line, and there-
after acquiesce in the line so established between them, such line will
be considered the true line between them, notwithstanding the period of
such acquiescence falls short of the time fixed by the statute of limita-
tions for gaining title by adverse possession. Id.
3. PAROL AGREEMENT ESTOPPEL.
Where the boundary line fixed by
tenants in common by exchange of deeds is so confused and ambiguous
as to require the construction of a court, they may meet, and by parol
agreement fix the boundary, and such agreement, if acquiesced in for
years, will operate as an estoppel, the enforcement of which will not
be prevented by the statute of frauds. Id.
See RAILROAD COMPANIES, 20.
1. A RAILWAY COMPANY HAS NO RIGHT TO EJECT A PASSENGER FROM ITS
CARS BECAUSE HIS TICKET IS NOT STAMPED and his signature properly
attested, where the omission to so stamp and attest is due to the failure
of its ticket or other agents to comply with its own regulations. A
company cannot urge the error of its agent as an excuse for disregarding
its own ticket, nor as a ground for relief from damages, whether general
or punitive, for ejecting a passenger from its cars. Head v. Georgia etc.
R'y Co., 434.
2 RAILROAD COMPANY CANNOT UNREASONABLY OR UNJUSTLY DISCRIMINATE
between its customers in its charges for carrying freight, where the
conditions are equal. What will amount to unjust discrimination
is a question of fact, ordinarily to be determined upon consideration of
all the facts and circumstances of the case. Root v. Long Island R. R.
Co., 643.
3. CONTRACT BY RAILROAD COMPANY TO CARRY COAL for Particular PER-
SON AT REBATE of fifteen cents per ton from the regular tariff rates,
in consideration of his expending a large sum of money in build.
ing on the company's lands, and in part for its use and convenience,
a dock and pocket for storing coal, and of his undertaking to ship coal
in large quantities, and to load it upon the cars, cannot be declared void
as against public policy, in the absence of any finding as a matter of fact
that there was an unjust discrimination. In such a case, it cannot be
determined as a matter of law that the discrimination was unjust. Id.
LIABILITY OF CARRIER FOR BREACH OF CONTRACT. - Where a railroad
company undertakes to forward goods by rail, in accordance with the
shipper's instructions, but, in disregard of such instructions, forwards
them by steamer, and the goods are lost by fire on the steamer, the car.
rier is liable for the loss in an action on the contract. In such case, the
principle of proximate cause is immaterial, and cannot be invoked.
Philadelphia etc. R. R. Co. v. Beck, 924.
AM. ST. REP., VOL. XI.-60
5. CARRIER'S STIPULATION FOR LIEN SUBORDINATE TO RIght of StoppaGE
IN TRANSITU. — A stipulation in a bill of lading, which the vendor and
shipper of goods takes from the carrier, that "the several carriers shall
have a lien upon the goods (shipped) for all arrearages of freight and
charges due by the same owners or consignees on other goods," if bind-
ing at all, is entirely subordinate to the consignor's right of stoppage in
transitu, and is ineffectual to give the carrier a lien such as stipulated
for, which will take precedence of such right. Farrell v. Richmond etc.
R. R. Co., 760.
6. CONSTRUCTIVE DELIVERY of Goods. - There being no actual delivery of
goods by a carrier to the consignee, a constructive delivery can only be
effected by an agreement on the part of the carrier, either express or
implied, to hold the goods for the consignee, not as carrier, but as his
agent. Id.
7. LIABILITY Of Carrier for LOSS OF FREIGHT BY UNAVOIDable Delay. —
An extraordinary and unprecedented flood causing a delay in transporta-
tion and loss of perishable freight is such act of God as will excuse the
carrier from liability for the loss, provided he has been guilty of no neg-
ligence nor departure from duty contributing to the occurrence of such
loss. Norris v. Savannah etc. R'y Co., 355.
8. LIABILITY of CARRIER FOR FAILURE TO GIVE NOTICE OF DELAY IN DELIV-
ERY OF FREIGHT. Where the delivery of perishable freight is delayed
by an unprecedented flood, constituting an act of God, a mere failure to
notify the consignor or consignee of the detention is not, of itself, negli-
gence rendering the carrier liable for the consequences of such delay,
especially in the absence of proof that if notice had been given the loss
would have been lessened, or to what extent. Id.
9. COMMON CARRIER TAKING PROPERTY FROM PERSON NOT AUTHORIZED TO
DIRECT ITS SHIPMENT has no lien thereon for his services, and no right
to retain the property. Pingree v. Detroit etc. R. R. Co., 479.
10. SEIZURE BY SHERIFF UNDER REGULAR PROCESS OF PROPERTY IN HANDS
OF COMMON CARRIER for shipment relieves him from liability for its
non-delivery to the consignee. Id.
11. COMMON CARRIER IS NOT COMPELLED TO ASSUME THat Regular PROCESS
IS ILLEGAL, and to risk all the consequences of resisting officers of the
law. If he is excusable for yielding to a public enemy, he cannot be at
fault for yielding to actual authority what he may yield to usurped au-
thority. Id.
1. CHATTEL MORTGAGE IS VITIATED BY AGREEMENT THAT MORTGAGOR MAY
SELL the property mortgaged, and apply the proceeds to other pur-
poses than the mortgage debt, and not by the fact that such sale has
been made. Hangen v. Hachemeister, 691.
2. CHATTEL MORTGAGE IS VOID AS TO CREDITORS OF MORTGAGOR, where there
is an agreement or understanding between the parties thereto, at the
time of its execution, that the mortgagor may sell or dispose of the prop-
erty mortgaged for and on his own account. And such agreement or
understanding may be proved by parol, or inferred from the fact that the
sales are permitted by the mortgagee. Id.
3. ASSIGNMENt for Benefit of CREDITORS. UNRECORDED CHATTEL MORT-
GAGE made bona fide between the parties is valid as against the assignee
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