MUNICIPAL CORPORATIONS (Continued).

SOLUTION.-A certified copy of the order of the board of directors declaring a municipal corporation duly incorporated must be filed in the office of the secretary of state, and such filing is essential to the completion of the corporation, and, until it is filed, there is no corporation; but the failure to file such certified copy with the secretary of state may be remedied pending the proceedings for a dissolution of the corporation.-Id.

14. COUNTIES-CONTRACT FOR REPAIRS AND IMPROVEMENTS OF COURTHOUSE NOTICE OF LETTING CONTRACT-CONSTRUCTION OF COUNTY GOVERNMENT ACT.-Section 25 of the County Government Act of 1891, requiring all county buildings to be let by contract, after notice by publication for sixty days, has no application to a contract for making repairs or alterations in the courthouse, or for laying walks and making improvements upon the grounds surrounding the courthouse.-McGowan v. Ford, 177.

15. CONTRACT FOR LIQUIDATED DAMAGES-PLEADING-INSUFFICIENT AVERMENT-PRESUMPTION.-In an action by a contractor to compel payment of warants for repairs to the courthouse and improvements of the courthouse grounds, under a contract which entitled the county to liquidated damages for each day the building should remain unfinished or incomplete after a certain date, where the answer does not aver that the repairs of the building were not completed and delivered within the time agreed upon, but only avers generally that the work was not completed before a subsequent date, it shows no case for liquidated damages, since the work included the improvements upon the grounds, and it may be assumed that the building was completed in time.-Id. 16. TIME OF INCURRING INDEBTEDNESS-FISCAL YEAR-INVALID ORDER OF SUPERVISORS.-Where indebtedness was incurred within one fiscal year, it can only be paid out of the revenue provided for that fiscal year and the board of supervisors have no jurisdiction or authority to carry the indebtedness over, and make it payable out of the revenue of the next fiscal year.—Id. 17. CREATION OF INDEBTEDNESS-STATUTORY CONSTRUCTION.-Section 865 of the Municipal Corporation Act of 1883, which forbids the board of trustees of cities or towns to create, audit, allow, or permit to accrue any debt or liability in excess of the available money in the treasury that may be legally appropriated for such purpose, has no application to a proceeding under the Municipal Indebtedness Act of 1889, to provide for a public improvement requiring an expenditure in excess of the amount allowed therefor by the annual tax levy of the town; and the latter act is controlling in the cases provided for therein.-Rice v. Board of Trustees of the Town of Haywards, 398.

18. REJECTION OF BIDS-POWER OF MUNICIPAL BOARD.-The municipal board is justified in rejecting or refusing to consider a bid put in for a public improvement by a town official who could not lawfully take the contract therefor; and may also reject any bid which is clearly collusive and fraudulent.-Id. 19. PROOF OF CHARACTER OF BIDS-RECORDS OF BOARD-ADMISSIBILITY OF EVIDENCE.-It is not requisite for the board in making a record of its action in rejecting bids to make an entry of their reasons for so doing, and any statement of reasons entered in the record does not preclude the board from showing in court what reasons

MUNICIPAL CORPORATIONS (Continued).

in fact caused their action; and the court may admit evidence as to the facts in the case.-Id.

20. RESTRICTION OF BIDDERS-ACTION OF MEMBERS OF BOARD-HARM -IRREGULARITY-EQUITABLE RELIEF.-The action of individual members of the municipal board in directing the engineer to inform intending bidders that no bids for the work would be received unaccompanied by a bid for the purchase of the bonds is not sufficient ground for relief in equity against a contract for a public improvement, where it does not appear that any injury accrued from the irregularity complained of, and there is no evidence that any one was deterred thereby from bidding on the contract, or that any person would have bid without such condition who did not bid with it, or that the bids put in were any higher by reason of such condition than they would have been without it, or that there was any fraud or bad faith.-Id.

21. YEARLY INDEBTEDNESS-CONSTITUTIONAL LAW.-Section 18 of article XI of the constitution, providing that "no county, city, etc. exceeding

shall incur any indebtedness or liability

in any year the income and revenue provided for it for such year," means that each year's income and revenue must pay each year's indebtedness and liability, and that no indebtedness or liability incurred in any one year shall be paid out of the income or revenue of any future year.-Smith v. Broderick, 644. 22. CLAIM REDUCED TO JUDGMENT-REVENUE OF SUBSEQUENT YEARMANDAMUS.-A claim against the city and county of San Francisco incurred during a particular year cannot be paid out of its revenue raised for a subsequent year, notwithstanding such claim had been reduced to a judgment, and provision for its payment had been attempted to be made by the board of supervisors by a special tax levied and collected in such subsequent year, and paid into the general fund. And a writ of mandate will not lie to compel the payment of the judgment out of the moneys so collected, nor to compel the auditor to allow the same as a claim against such fund. -Id.

23. CONTRACT OF MUNICIPALITIES.-If, at the time a municipality enters into an obligation, there is a limitation upon the extent to which it may enter into such obligation, or upon the extent of taxation for the payment of its liability, or upon the mode in which such payment is to be made, there is no violation of any provision of the constitution, or of any obligation of the municipality, in insisting that the person dealing with it shall be bound by the terms of the law as they existed when he entered into his dealing with the municipality.-Id.

24. PAYMENT OF JUDGMENTS AGAINST SAN FRANCISCO.-The act of 1858 (Stats. 1858, p. 233), conferring power upon the board of supervisors to "order paid any final judgment against said city and county, out of the surplus fund," does not authorize the payment of such judgment out of the revenue collected for any subsequent year.-Id.

MURDER AND MANSLAUGHTER.

See CRIMINAL LAW, 13-15.

NAVIGABLE STREAM. See WATER AND WATER RIGHTS, 1-4.

NEGLIGENCE.

1. UNPROTECTED MACHINERY-DANGEROUS PROJECTIONS IN SHAFTINJURY TO EMPLOYEE OF TENANT-LIABILITY OF OWNER.-Where a corporation engaged in the business of leasing buildings for business purposes and furnishing steam power in connection therewith, after leasing the basement and first floor of its building, erected in the basement an iron shaft to transmit power to a new buildin, which shaft passed through the casing of the basement door and along one side of the basement stairs, and that portion of the shaft over the stairway was unprotected, and had upon its surface rough, jagged projections and sharp points varying from a sixteenth to an eighth of an inch in height, which were of a character calculated to make the shaft at that point dangerous and likely to catch clothing, and were not visible when the shaft was revolving, and the plaintiff, being unaware of the projections in the shaft, and being the employee of the lessee of the basement, went upon the basement steps to the glass doors leading to the basement, for the purpose of seeing thereby to remove some thorns from his hand, having no available light in the basement sufficient for that purpose, whereupon his clothing was caught in the projections of the revolving shaft, near the stairway, and his body and limbs, in consequence, were badly broken and injured upon the shaft; a verdict for the plaintiff for damages for the injury thus sustained will not be set aside upon appeal.-Davis v. Pacific Power Company, 563.

2. CONSENT OF TENANT TO ERECTION OF SHAFT-EFFECT OF VERDICT -SUFFERANCE-RIGHT OF PLAINTIFF.-Where the evidence is conflicting as to whether the tenant gave his consent to the erection of a shaft in the basement by the owner of the building, and the court instructed the jury that if the defendant erected and maintained the shaft with the consent of the defendant, the plaintiff, as the tenant's employee, could not recover, the verdict must be regarded as negativing such consent, and the plaintiff, being at best a mere licensee, and exercising a privilege at bare sufferance, is not in a position to question the right of the plaintiff to be engaged as he was on the stairway.-Id.

3. DUTY OF EMPLOYER-REMOVAL OF DISABILITY.-The plaintiff, as an employee of the tenant, was in the line of duty to his employer in seeking to remove the cause of disability to work for his employer as speedily and conveniently as possible, and the basement doors furnishing the most available place for that purpose, his position there was not that of a mere volunteer without right, but he had a right to be where he was when injured.-Id.

4. DUTY TO PROTECT FROM DANGEROUS MACHINERY.-The defendant owed the plaintiff the duty of protection from dangerous machinery, whether the defendant was rightfully maintaining its shaft upon the premises or not.-Id.

5. ASSUMPTION OF RISK BY TENANT.-Where the defendant objected to the introduction of the shaft, and the lessor informed him that he ought not to object, but that if he did it would make no difference, that the shaft had to go in, and that he would never be disturbed by it, and the shaft remained wholly under the care and management of the defendant, neither the tenant nor his employee can be held to have assumed any of the risks incident to its maintenance.-Id.

NEGLIGENCE (Continued).

6. RESPONSIBILITY OF LANDLORD-DUTY TO PROTECT MACHINERY.— Where a landlord retains or has control of a portion of leased premises, the responsibility rests with him to see that no injury results to those having rights there by reason of the manner in which such portion of the premises is occupied or used; and, if he puts dangerous machinery thereon, it is his duty to fence it, or use other proper means to protect those rightly in its vicinity.-Id. 7. CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.-The rough projections of the shaft not being visible to the plaintiff, and not being apparent while the shaft was in motion, it cannot be said, as matter of law, that he was guilty of contributory negligence in allowing his clothing to be caught in those projections; but the question as to whether he was guilty of contributory negligence is a proper one for the jury.—Id.

& ILLUSTRATION OF TESTIMONY-REFERENCE TO PIECE OF IRON.-It is not error to permit a witness, in illustration of his testimony with reference to the size and condition of the shaft, to refer to a piece of iron of about the same dimensions, used, not as a model, but simply to illustrate more clearly the testimony of the witness. -Id.

9. EXPLOSION OF DYNAMITE-DESTRUCTION OF PREMISES OF GRANTOR —MAXIM.—Where a powder company is charged with negligence in the use of dynamite upon its premises, whereby an explosion was caused resulting in the destruction of the plaintiff's property, the fact that the plaintiffs sold the premises where the explosion occurred for the purpose of a dynamite factory is not material, and the maxim, Volenti non fit injuria, does not apply to the case. -Judson v. Giant Powder Co., 549.

10. RIGHTS OF GRANTOR-CARE OF GRANTEE-ASSUMPTION OF RISK. -In making a grant of premises for the purpose of a dynamite factory the grantor has a right to assume that due care will be exercised in the conduct of the business, and has a right to demand that such care be exercised; and the grantor does not assume the risk of explosions caused by the negligent acts of the powder works by continuing to do business near their locality after being served with notice of the danger that surrounds the manufacture of dynamite.-Id.

11. PRESUMPTION OF NEGLIGENCE FROM FACT OF EXPLOSION.-Negligence is prima facie presumed from the fact of the explosion of a nitro-glycerine factory, in the absence of evidence showing care on the part of the employees.-Id.

12. ACCIDENT OUT OF ORDINARY COURSE-CONTRACTUAL RELATION NOT NECESSARY.-When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, if affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care, and no question of contractual relation forms an element in such a case.-Id.

13. EXPERT EVIDENCE.-The prima facie case of negligence arising from the fact of the explosion is strengthened and made complete by expert testimony to the effect that, if the factory was properly conducted and the employees were careful during the process of manufacturing, an explosion would not occur.-Id.

NEGLIGENCE (Continued).

14. DERAILING OF STREET-CAR BY FRIGHTENED HORSES-REBUTTAL OF PRESUMPTION.-Where the plaintiff was injured by jumping from a street-car which had been derailed from the track by frightened horses, any presumption of negligence from the fact of the accident is sufficiently rebutted by testimony introduced by the defendant showing that there was a perfect track, car, and harness in good repair, gentle horses, and a skillful driver, alert and at his post; and that, while the car was proceeding upon the track, an express-wagon was driven rapidly in front of the team and suddenly stopped, and a man with a bundle jumped suddenly in front of the horses and toward them, startling them and causing them for the moment to become unmanageable, and to derail the car from the track.-Perry v. Malarin, 363.

15. UNFORESEEN STARTLING OF HORSES-DISPROOF OF NEGLIGENCE.— Where the event which startled the horses could not have been foreseen, and all was done which could have been done by the utmost skill and care to prevent accident after the horses were startled, negligence is disproved.-Id.

16. EVIDENCE-PREVIOUS RUNAWAY OF HORSE.-The bare statement of a witness that one of the car horses had once run away, without showing when or under what circumstances, or that the defendant knew or ought to have known it, does not tend to show negligence. Id.

17. UNUSUAL SPEED OF HORSES.-The mere fact that the horses were going at an unusual speed, where it does not appear that they were going at a dangerous gait, does not tend to prove negligence, -Id.

18. STREET-CAR COMPANY-CHANGE OF HORSES-COLLISION-INJURY FROM FRIGHTENED TEAM.-Where the driver of a horsecar, after detaching the horses from the car at the company's stables, for the purpose of obtaining a fresh team, swung them into the crowded, busy street, so as to collide with a wagon and team traveling in the same direction as the car, and which was already abreast of him when he swung the horses, his act in so swinging the horses, without either looking or listening for any approaching team, tends to prove negligence; and where, as the result of the collision, the horses ran away, and injured the plaintiff, a verdict against the horsecar company for damages for the resulting injury will be sustained upon appeal.-Sutter v. Omnibus Cable Company, 369. 19. LEAVING TRAPDOOR OPEN-CONTRIBUTORY NEGLIGENCE-QUESTION OF FACT-NONSUIT.-Where the plaintiff was injured by falling through an opening maintained by defendant in the sidewalk, which had no railing or protection around it, and which was occasioned by the defendant leaving a trapdoor open flat upon the sidewalk, which the plaintiff had crossed a few moments before when closed, and had not seen opened, and did not observe that it was open by reason of being absorbed in business while attempting to repass. although he was familiar with the defendant's habit of opening the trapdoor daily at intervals, and had seen it opened daily for years, and had spoken to defendant of the opening as being dangerous, the question of the plaintiff's contributory negligence is one of fact for the jury, and a motion for a nonsuit on the ground that the plaintiff's negligence contributes to the injury is properly overruled.-Van Praag v. Gale, 438.